THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA

AT KAMPALA

{CORAM:   TSEKOOKO, KATUREEBE, OKELLO, TUMWESIGYE & KISAAKYE, JJSC.}

Civil Application No. 02 of 2010

1.   DR. KASIRIVU ATWOOKI                                             BETWEEN

2.   GEN. D. TINYEFUZA                                  :::::::::::::::::::::::::::::::::::::::   APPELLANTS    

3.   MAJOR GENERAL KALE KAYIHURA

4.  S. MUKITALE BIRAHWA                                                                                                                          

AND 

1.  GRACE BAMURANGYE BOROROZA

2.  RUSAGARA GODFREY                                 ::::::::::::::::::::::::::::::::::::::   RESPONDENTS

3.  MWESIGWA WILSON                             

4.  HIGIRO GODFREY & 50 OTHERS     

{Application Arising from Supreme Court Civil Appeal No. 05 of 2010}

REASONS FOR THE RULING OF THE COURT

On 12^th October, 2010 we heard a notice of motion instituted by Dr. Kasirivu Atwooki, Gen. D. Tinyefuza, Maj. General Kale Kaihura and S. Mukitale Birahwa (the applicants).   By this motion the applicants sought to have Civil Appeal No. 05 of 2010 struck out.   The Civil Appeal had been instituted by Grace Bamurangye and 53 others, the present Respondents.

We struck out the appeal at the conclusion of the hearing.   Because of the nature of arguments, we promised to give our reasons about the arguments later.   We now give the reasons.

We start by setting out relevant facts.   The Respondents in these proceedings instituted an appeal in the Court of Appeal against a decision of the High Court.  The applicants, as respondents in the Court of Appeal, filed a Court of Appeal Civil Application No. 85 of 2008 seeking to have the appeal in that Court struck out for failure of service upon them of the notice of appeal as required by the Rules of the Court of Appeal.   That application is an interlocutory matter.   The ruling was given on 05/06/2009.   Thereafter, the present respondents through the firm of Mukasa – Lugalambi, Advocates, sought to appeal and so filed in this Court a notice of appeal followed by the institution of Civil Appeal No. 05 of 2010 on the 10^th February, 2010.   On 09^th April, 2010, Messrs Byenkya, Kihiika & Co. Advocates, lodged the present notice of motion asking this Court to strike out the appeal on the following three grounds—

1. No appeal lies to this Honourable Court against the decision of the Court of Appeal made in Civil Application No. 85 of 2008 on the 05^th June, 2009.   The impugned decision was not one that confirmed, varied or reversed a decision of the High Court.

1. The appeal raises matters arising from preliminary objections that were overruled by the Court of Appeal on the 26^th May, 2009.   Leave to appeal was expressly denied by the honourable Court of Appeal.   No leave has been sought from this honorable Court to appeal against the said matters.

1. The applicant (sic) did not take the essential step of filing the appeal within the time limited by the rules of this honourable Court after receiving the record of proceedings in Civil Application No. 85 of 2008.

The motion is supported by an affidavit sworn on 31^st March, 2010 by Stephen Mukitale Birahwa, the 4^th applicant.   In essence his affidavit gives reasons in support of the above three grounds.   In reply, Mwesigye Wilson, the 3^rd respondent, swore an affidavit on 08^th October, 2010 in opposition to the application.   In it he dwelt on how the Court of Appeal heard and disposed of Civil Application No. 44 of 2008 and

Civil Application No. 85 of 2008.   He mistakenly perceives that the way the two applications were decided by the Court of Appeal gives the respondents a right of appeal to this Court.

At the hearing, Mr. Ebert Byekya of Byenkya, Kihiika & Co, Advocates, and Mr. Mwambushya, a state attorney from the Attorney General’s Chambers appeared for the applicants.   Mr. Mukasa-Lugalambi appeared for the respondents.

At the start of the hearing, Mr. Mukasa-Lugalambi, Counsel for the respondents, half-heartedly objected to the validity of the affidavit sworn by Stephen Mukitale Birahwa basically on the basis that the affidavit offends S.5 of the Oaths Act.  He claimed that it did not contain a statement at the end saying that “the contents of the affidavit were true and correct.”   We think that the objection has no basis and learned counsel must have quoted a wrong law.   Section 5 reads as follows:—

1. ‘Whenever any oath is required to be taken under the provisions of this or any other Act, or in order to comply with the requirements of any law in force for the time being in Uganda or any other country, the following provisions shall apply, that is to say, the person taking oath may do so in the following form and manner—

1. he or she shall hold, if a Christian, a copy of the gospels of the four evangelists or of the New Testament, or if a Jew, a copy of the Old Testament, or if a Moslem, a copy of the Koran, in his or her uplifted hand, and shall say or repeat after the person administering the oath the words prescribed by law or by the practice of the Court, as the case may be;

1.  in any other manner which is lawful according to any law, customary or otherwise, in force in Uganda.

1. For the purpose of this section, where a person taking oath is physically incapable of holding the required copy in his or her uplifted hand, he orshe may hold the copy otherwise, or, if necessary, the copy may be held before him or her by the person administering the oath.’

This Section is clearly not applicable.   Moreover we think that the affidavit was properly sworn.    Thus, paragraph18 and the jurat in the affidavit read as follows:—

              18) That what is contained in this affidavit is based on my knowledge                               save what is stated to be a matter of information or           belief which             is based on the grounds herein.

                        Sworn at Kampala this 31^st day of March, 2010 by the said Stephen                                     Mukitale Birahwa.

                        ————————————

                        Deponent

With respect to learned counsel for the respondent, we find no substance in the objection.   Clearly Section 5 of the Oaths Act does not support the objection.   There is nothing in the Section showing what would be the consequence of failure to include the phrase “the contents are true and correct” in the affidavit.   As a matter of fact the affidavit contains a jurat indicating that the deponent swore the affidavit before a Commissioner for Oaths which is the mandatory requirement stipulated by the statute.

We now consider the merits of the application.   For the applicants, Mr. Mwangushya, SA, argued ground one of the Notice of Motion and Mr. Byenkya augmented the submission when he responded to the submissions of Mr. Mukasa.    In brief the learned State Attorney contended that the respondents have no automatic right of appeal to this Court against the decision of the Court of Appeal made in an interlocutory matter.   Therefore Supreme Court Civil Appeal No. 05 of 2010 which is against the ruling of the Court of Appeal dated 05/06/2009 in Civil Application No. 85 of 2008 is incompetent.   The learned State Attorney relied on section 6(1) of the Judicature Act.

For the Respondents, Mr. Mukasa-Lugalambi contended that his clients      have a right of appeal and he based this contention on sections 4 and 6 of the Judicature Act, Section 78 of the CP Act and Article 132 of the Constitution.   He also appealed to us to use our inherent powers as set forth in Rule 2(2) of the Rules of this Court not to strike out the appeal.   He casually cited two cases without giving their full details nor were copies of any provided to Court.   He casually cited F. Musiitwa