Musoke v Agard and 2 Others (Civil Application No. 341 of 2020)

Observed later treatment

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

The Court of Appeal dismissed the applicant's application for a certificate of importance to appeal to the Supreme Court. It held that the primary finding challenged was a finding of fact, which cannot ground certification under section 6(2) of the Judicature Act, and that mere apprehension of a miscarriage of justice is not a proper basis for certification. The remaining questions related to a secondary finding which, even if resolved in the applicant's favour, would not alter the decision, and certifying them would amount to referring academic questions. The accompanying application to stay execution was also dismissed because no appeal lies from the Court's decision whose execution was sought to be stayed.

Outcome

Both applications (leave to appeal and stay of execution) dismissed with costs to the respondents

Facts

The applicant and the respondents owned land in the same location. The respondents accessed their land using a road running through part of the applicant's land. In 2011 the applicant excavated the portion of his land where the road passed, preventing the respondents from accessing their land. The respondents sued, claiming entitlement to use the road and that the applicant had unlawfully interfered with that right. The Chief Magistrate's Court found the respondents were entitled to use the portion where the road passed and that the applicant had unlawfully interfered, constituting an easement and trespass. The High Court on first appeal and the Court of Appeal on second appeal upheld this finding. A secondary finding concerned the trial court's expunging of evidence given by Sam Kiwanuka, whom the applicant had granted a power of attorney, on grounds the applicant could not lawfully appoint an attorney in the suit. The applicant, having lost in the Court of Appeal, sought a certificate of importance to appeal to the Supreme Court and a stay of execution.

Issues

1. Whether the questions raised by the applicant constitute questions of law of great public or general importance warranting certification for a third appeal to the Supreme Court under section 6(2) of the Judicature Act.
2. Whether the Court of Appeal has jurisdiction to stay execution of its own judgment where no appeal lies or is pending against it.

Orders

• Civil Application No. 0341 of 2020 for leave to appeal to the Supreme Court is dismissed with costs to the respondents.
• Civil Application No. 0359 of 2020 seeking to stay execution is dismissed with costs to the respondents.
• The order in Civil Application No. 0360 of 2020 staying the status quo lapses immediately on delivery of this Ruling.

Rules and key headnotes

Legislation cited (4)

• Judicature Act, Cap. 13 s.6(2)
• Registration of Titles Act, Cap. 230 s.146(1)
• Registration of Titles Act, Cap. 230 s.164(4)
• Constitution of the Republic of Uganda 1995 art.126(2)(e)

Cases cited (4)

• Namuddu Christine vs. Uganda Supreme Court Criminal Appeal No. 3 of 199 (unreported)
• [2019] UGCA 2069
• Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone [2013] eKLR
• Habre International Trading Co Ltd v Francis Butagira (Supreme Court Civil Appeal No. 3 of 1999)

Cases citing this judgment (1)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

• Musoke v Agard & 2 Others (Civil Application 37 of 2021)

The original judgment as reported. Read the original PDF before relying on any passage.