Nsubuga and 3 Others v Kamuje (Civil Application 31 of 97)
Observed later treatment
No later-treatment classification is recorded for this judgment.
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Holding
The Supreme Court overruled the respondent's preliminary objections. It held that an appeal is commenced by filing a Notice of Appeal under Rule 74(1), the first essential step in the appellate process; since the Notice of Appeal was filed on 18 July 1995, before promulgation of the 1995 Constitution, the proceedings were 'pending' within Article 280 of the Constitution and section 9 of Statute 12 of 1996, and the court retained jurisdiction to continue them. The court further held that the earlier application had been struck out without being decided on the merits, so it neither operated as res judicata nor barred a fresh application. Rubinga v Yakobo Rato left the lapse-of-leave question open and was not authority for the respondent's argument.
Outcome
Preliminary objections overruled; the Court retains jurisdiction to continue with the application for leave to appeal out of time.
Facts
The applicants sought leave to file an appeal out of time against a decision of the High Court at Fort Portal in Civil Appeal No. 52 of 1994. A Notice of Appeal had been filed in the Supreme Court on 18 July 1995, before the 1995 Constitution came into force, but a copy was not served on the respondent. The applicants then filed an application for leave to file a Memorandum of Appeal out of time, which was struck out as premature because the Notice of Appeal had not first been served. Leave to serve the Notice of Appeal out of time was later granted by Tsekooko, J.S.C. on 21 March 1997. A further application to file the Memorandum of Appeal was struck out for uncertainty as to what was being sought. The applicants then brought the present application for leave to file the appeal out of time, which the respondent resisted by preliminary objection.
Issues
- Whether the application was properly before the Supreme Court, namely whether the proceedings were 'pending' immediately before the coming into force of the 1995 Constitution within the meaning of Article 280 and section 9 of the Constitution (Consequential Provisions) Statute 12 of 1996.
- Whether the leave granted to file a Notice of Appeal out of time lapsed once the subsequent application to file the appeal out of time was struck out.
- Whether the striking out of an earlier application, not decided on its merits, barred the applicants from bringing the present application.
Orders
- The respondent's preliminary objections are overruled.
- The Court is seized with jurisdiction to continue with the proceedings under Article 280 of the Constitution and section 9 of Statute 12 of 1996 until they are completed.
Rules and key headnotes
Legislation cited (6)
- Constitution of Uganda 1995 art.280
- Constitution (Consequential Provisions) Statute 12 of 1996 s.9
- Rules of the Supreme Court r.74(1)
- Rules of the Supreme Court r.35
- Magistrates Courts Act
- Civil Procedure Act
Cases cited (2)
- Rubinga v Yakobo Rato & Anor (supra)
- Salim ... 4 of ... 1995 (SC) (unreported)
Full judgment
The original judgment as reported. Read the original PDF before relying on any passage.