Uganda Legal Information Institute - Jurisdiction https://old.ulii.org/tags/jurisdiction-1 en Mugyenzi v Uganda Electricity Generation Co. Ltd. (Civil Appeal No. 167 of 2018) [2019] UGCA 120 (18 April 2019); https://old.ulii.org/ug/judgment/court-appeal-uganda/2019/120 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/civil-procedure" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Civil Procedure</a></li><li class="field-item odd"><a href="/tags/jurisdiction-1" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Jurisdiction</a></li><li class="field-item even"><a href="/tags/pleadings-0" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Pleadings</a></li><li class="field-item odd"><a href="/tags/labour-and-employment-law" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Labour and Employment Law</a></li></ul></section><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-72210bafddb85bbb329dbd8f7f390026"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/court-appeal-uganda/2019/120/court-appeal-uganda-2019-120.pdf" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"><iframe class="pdf" webkitallowfullscreen="" mozallowfullscreen="" allowfullscreen="" frameborder="no" width="100%" height="600px" src="/sites/all/libraries/pdf.js/web/viewer.html?file=https%3A%2F%2Fold.ulii.org%2Fsystem%2Ffiles%2Fjudgment%2Fcourt-appeal-uganda%2F2019%2F120%2Fcourt-appeal-uganda-2019-120.pdf" data-src="https://old.ulii.org/system/files/judgment/court-appeal-uganda/2019/120/court-appeal-uganda-2019-120.pdf">https://old.ulii.org/system/files/judgment/court-appeal-uganda/2019/120/court-appeal-uganda-2019-120.pdf</iframe> </div> </div> </div> </div> </div> Fri, 19 Apr 2019 19:12:40 +0000 admin 29695 at https://old.ulii.org Mwesigwa Vs Petro Uganda Ltd (CIVIL APPEAL No. 97 OF 2009) [2019] UGCA 24 (4 April 2019); https://old.ulii.org/ug/judgment/court-appeal-uganda/2019/24 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/civil-procedure" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Civil Procedure</a></li><li class="field-item odd"><a href="/tags/actions-and-applications" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Actions and applications</a></li><li class="field-item even"><a href="/tags/jurisdiction-1" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Jurisdiction</a></li></ul></section><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-a64d86fa0be0c364ad3455591b5d4e2e"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/court-appeal-uganda/2019/24/court-appeal-uganda-2019-24.pdf" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"><iframe class="pdf" webkitallowfullscreen="" mozallowfullscreen="" allowfullscreen="" frameborder="no" width="100%" height="600px" src="/sites/all/libraries/pdf.js/web/viewer.html?file=https%3A%2F%2Fold.ulii.org%2Fsystem%2Ffiles%2Fjudgment%2Fcourt-appeal-uganda%2F2019%2F24%2Fcourt-appeal-uganda-2019-24.pdf" data-src="https://old.ulii.org/system/files/judgment/court-appeal-uganda/2019/24/court-appeal-uganda-2019-24.pdf">https://old.ulii.org/system/files/judgment/court-appeal-uganda/2019/24/court-appeal-uganda-2019-24.pdf</iframe> </div> </div> </div> </div> </div> Wed, 10 Apr 2019 09:35:29 +0000 Ben Mulingoki 29612 at https://old.ulii.org Odoo Vs Omara (CIVIL APPEAL No. 4 OF 2012) [2019] UGCA 22 (4 April 2019); https://old.ulii.org/ug/judgment/court-appeal-uganda/2019/22 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/civil-procedure" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Civil Procedure</a></li><li class="field-item odd"><a href="/tags/appeals-and-reviews" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Appeals and reviews</a></li><li class="field-item even"><a href="/tags/jurisdiction-1" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Jurisdiction</a></li></ul></section><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-09134af3e498b9527774b281811c5ac2"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/court-appeal-uganda/2019/22/court-appeal-uganda-2019-22.pdf" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"><iframe class="pdf" webkitallowfullscreen="" mozallowfullscreen="" allowfullscreen="" frameborder="no" width="100%" height="600px" src="/sites/all/libraries/pdf.js/web/viewer.html?file=https%3A%2F%2Fold.ulii.org%2Fsystem%2Ffiles%2Fjudgment%2Fcourt-appeal-uganda%2F2019%2F22%2Fcourt-appeal-uganda-2019-22.pdf" data-src="https://old.ulii.org/system/files/judgment/court-appeal-uganda/2019/22/court-appeal-uganda-2019-22.pdf">https://old.ulii.org/system/files/judgment/court-appeal-uganda/2019/22/court-appeal-uganda-2019-22.pdf</iframe> </div> </div> </div> </div> </div> Wed, 10 Apr 2019 09:27:20 +0000 Ben Mulingoki 29610 at https://old.ulii.org D.S Mubiru v The Cooperative Bank Ltd (CIVIL APPEAL NO. 7 OF 1982) [1983] UGSC 1 (31 January 1983); https://old.ulii.org/ug/judgment/supreme-court-uganda/1983/1 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/civil-procedure" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Civil Procedure</a></li><li class="field-item odd"><a href="/tags/jurisdiction-1" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Jurisdiction</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p class="rtecenter"><span style="font-size:12px"><span style="font-family:Times New Roman,Times,serif"><strong><u>IN THE COURT OF APPEAL<br /> AT MENGO </u><br /> (CORAM: LUBOGO, AG. J. A.)<br /> <u>CIVIL APPLICATION NO.3 OF 1986 </u><br /> BETWEEN<br /> UGANDA COMMERCIAL BANK…………………………………… APPLICANT<br /> AND<br /> SEVERIO ORYEDA………………………………………………… RESPONDENT<br /> (Appeal from a judgment of the high Court of Uganda at Kampala (Mr.<br /> Kato, J.) dated 24<sup>th</sup> March, 1986<br /> IN<br /> <u>Civil Suit No.2034 Of 1984)</u></strong></span></span></p> <p><span style="font-size:12px"><span style="font-family:Times New Roman,Times,serif"><strong><u>RULING OF LUBOGO, AG. J.A.</u></strong><br /> Two applications were made on a Notice of Motion accompanied by an affidavit t sworn by the applicant an advocate, one was for extension of time to lodge an appeal, and the other was for stay of execution. However, when the application came on for hearing counsel the applicant stated that he would like to abandon the second application dealing with stay of execution as it had been overtaken by events in that the decretal amount had been paid already by the applicant. This leaves only the application for extension of time to lodge the appeal.</span></span></p> <p><span style="font-size:12px"><span style="font-family:Times New Roman,Times,serif">In his affidavit counsel stated that he filed a Notice of Appeal on 4<sup>th</sup> April, 1986 he did not say however, when the judgment was delivered against the applicant. He stated at the bar that the judgment was delivered on 24<sup>th</sup> March, 1986. On 6<sup>th</sup> May, he wrote to the Deputy Chief Registrar for a copy of the proceedings for the purpose of filing an appeal, but only received the judgment. On 8<sup>th</sup> July, 1986 another letter was sent to the Deputy Chief Registrar again requesting for a copy of the proceedings. At the time of hearing the application no such proceedings have been received.</span></span></p> <p><span style="font-size:12px"><span style="font-family:Times New Roman,Times,serif">Mr. Womutuba for the respondent submitted that the application should be dismissed for no sufficient reason had been shown. He submitted further that the application should have been made under Rule 81 of this Court’s Rules and not under Rule 4 in which case a copy of the letter to the Deputy Chief Registrar should have been sent to them. He said that the affidavit did not express the desire to appear and whether the appeal was likely to succeed in order to enable the court to determine whether or not the refusal of the application could cause injustice. He referred to <strong>National Pharmacy Ltd. v Kampala City Council Court of Appeal Civil Application No.6/79. </strong></span></span></p> <p><span style="font-size:12px"><span style="font-family:Times New Roman,Times,serif">I must say from the outset that the application was properly filed under Rule 4 of this Court’s Rules. This rule deals with extension of time, which rule 81 deals with the extension of the appeal and computation of time within which the appeal is to be instituted. That being the case the sending f a copy of a letter requesting a copy of the proceedings to the respondent’s advocates does not arise.</span></span></p> <p><span style="font-size:12px"><span style="font-family:Times New Roman,Times,serif">With regard to “sufficient reason” the affidavit stated that he requested a copy of the proceedings on 6<sup>th</sup> May, 1986 having filed a Notice of Appeal on 4<sup>th</sup> April, l986. The request for proceedings came about 42 days from the date of judgment. The applicant was still within the time to file an appeal, but he had only received a copy of the judgment. On 8<sup>th</sup> July, 1986 he sent another letter to the Deputy Chief Registrar requesting for the same. It is not known whether he received a reply. It seems up to now he has not yet received a copy of the proceedings.<br /> It would appear that the applicant has taken steps to obtain the proceedings from the court, but the court has so far failed to provide the documents in order to enable the applicant to file the record of appeal. In <strong>Mugo &amp; Others v Wanjiru and Another (1970) E.A.</strong> 481 Duffus, p., was referring to Rule 9 of the East African Court of Appeal Rules 1954 which is almost similar to Rule 4 of Court of Appeal for East Africa Rules 1972. He quoted Corrie Ag. J.A. in the decision of <strong>Shah v Jamnadas (1959) EA. 838</strong> at p.840. Duffus P. wert on to say:</span></span></p> <p><span style="font-size:12px"><span style="font-family:Times New Roman,Times,serif">“This, however, is only the general rule. This in the case of <strong>Shatt v Tejwant<br /> Singh (1962) E.A. 497,</strong> this court decided that there was “sufficient reason” where the delay had been attributable entirely to the courts and did not consider the merits of the case.”</span></span></p> <p><span style="font-size:12px"><span style="font-family:Times New Roman,Times,serif">It would appear to me that a refusal to grant leave to extend time to file an appeal would cause injustice especially as the delay was caused by the court in this case. It is true the affidavit did not state that the prospects of the appeal to succeed were good. On this point it was stated in <strong>Mugo v Wanjiru (supra)</strong> by Spry V-P.,</span></span></p> <p><span style="font-size:12px"><span style="font-family:Times New Roman,Times,serif">“I would agree to this extent, that I do not think the fact that an appeal appears likely to succeed can of itself amount to a “sufficient reason”. Normally, I think, sufficient reason must relate to the inability or failure to take the particular step in time, but I am not prepared to say that no other consideration may be invoked.”</span></span></p> <p><span style="font-size:12px"><span style="font-family:Times New Roman,Times,serif">It was not, therefore, necessary to refer to the prospects in this particular case, but may be necessary in other cases. I do not think that an injustice would result if time is granted to file the appeal. The sum of Shs.2,798,973/40 has already been paid to the respondent and, therefore, he would not in any way be prejudiced.</span></span></p> <p><span style="font-size:12px"><span style="font-family:Times New Roman,Times,serif">I would, therefore, invoke my discretionary powers to grant leave to file the appeal outside the time prescribed by the Rules within thirty days from date hereof. Costs would abide the result of the appeal.</span></span></p> <p><span style="font-size:12px"><span style="font-family:Times New Roman,Times,serif">DATED at Kampala this 7<sup>th</sup> day of October, 1986.</span></span></p> <p><span style="font-size:12px"><span style="font-family:Times New Roman,Times,serif">Signed:</span></span></p> <p><span style="font-size:12px"><span style="font-family:Times New Roman,Times,serif">D. L. K. Lubogo,<br /> <u>AG. JUSTICE OF APPEAL. </u></span></span></p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-34aa291e0b75c025886b8717b77f2f20"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/supreme-court-uganda/1983/1/supreme-court-uganda-1983-1.pdf" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"><iframe class="pdf" webkitallowfullscreen="" mozallowfullscreen="" allowfullscreen="" frameborder="no" width="100%" height="600px" src="/sites/all/libraries/pdf.js/web/viewer.html?file=https%3A%2F%2Fold.ulii.org%2Fsystem%2Ffiles%2Fjudgment%2Fsupreme-court-uganda%2F1983%2F1%2Fsupreme-court-uganda-1983-1.pdf" data-src="https://old.ulii.org/system/files/judgment/supreme-court-uganda/1983/1/supreme-court-uganda-1983-1.pdf">https://old.ulii.org/system/files/judgment/supreme-court-uganda/1983/1/supreme-court-uganda-1983-1.pdf</iframe> </div> </div> </div> </div> </div> Wed, 05 Sep 2018 07:28:55 +0000 Ben Mulingoki 29033 at https://old.ulii.org Munyagira v Mutayitwako (MISCELLENEOUS APPL. NO. 37 OF 1993 ) [1993] UGHC 28 (27 May 1993); https://old.ulii.org/ug/judgment/high-court/1993/28 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/civil-procedure" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Civil Procedure</a></li><li class="field-item odd"><a href="/tags/jurisdiction-1" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Jurisdiction</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><div> <table align="center" cellpadding="0" cellspacing="0" style="height:12px"> <tbody> <tr> <td> <p>&nbsp;</p> </td> </tr> </tbody> </table> <div>&nbsp;</div> &nbsp; <p>&nbsp;</p> </div> <p>&nbsp;</p> <div> <p>&nbsp;</p> <p>THE REPBLIC OF UGANDA</p> <p>&nbsp;</p> <p>IN THE HIGH COURT OF UGANDA AT KAMPAL</p> <p>&nbsp;</p> <p>MISCELLENEOUS APPL. NO. 37 OF 1993</p> </div> <p>&nbsp;</p> <p>&nbsp;</p> <div> <p>&nbsp;</p> </div> <p>&nbsp;</p> <p>&nbsp;</p> <div> <p>&nbsp;</p> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; PERAGIO MUNYAGIRA::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT</p> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; VERSUS</p> <p>&nbsp;</p> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; ANDREW Y. MUTAYITWAKO::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT</p> </div> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>BEFORE: <u>THE HON. MR. JUSTICE G.M. OKELLO</u></p> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p><u>RULING</u>:</p> <p>This application was brought by Notice of Motion which cited section 18 of the Civil Procedure let s the law under which it was brought. It sought an order of this court to transfer Mengo civil suit No. G.K. 1056/91 from the Chief Magistrate’s court of Mengo to this court for trial. It was based on the ground that:-</p> <p>"the quantum of damages sought by the applicant exceeds the jurisdiction of the Chief Magistrate’s Court."</p> <p>The application was supported by an affidavit of Mr. E. Mugabi as counsel duly instructed to handle the case on behalf of the plaintiff.</p> <p>The back ground of the case is brief. The application was first set down for hearing on 12/5/93. On this date Mr. Mugabi appeared for the applicant and Mr. Nakana Muwayire for the Respon­dent. At the instance of Mr. Muwayire, the hearing of the Appli­cation was adjourned to today 25/5/93 to five Mr. Nakana Muwayire time to study the case. His clerk had not filed the relevant documents in the case. Counsel was fresh documents by counsel for the applicant.</p> <p>On 26/5/93 when the application was called for hearing, both parties and their counsels were absent, I decided to stand down the case for up 9.30 a.m. hopefully the parties and their counsels would appear. Mugabi appeared at 9.35 when I was waiting an order dismissing the application for non appearance of the applicant. He explained that he delayed receiving judgment from another judge.</p> <p>In the letters of justice, I allowed Mr. Mugabi to present his application even though the Respondent was absent. This is what Mr. Mugabi said.</p> <p>“I am applying that the application be allowed and the order be made transferring the case to High Court. That is all”</p> <p>I must state that this application was in my view handled half-heartedly by counsel for the Applicant.</p> <p>First, counsels are expected to cite the provisions of the law under which they bring their application to court. Failure to do renders the application defective. This results in the application being dismissed.</p> <p>In <u>Odongkara vs Kamada (1968) EA 210, </u>the plaintiff applied by notice of motion to amend the plaint by substituting the party but did not cite the rule under which the application was made. The application was dismissed for being defective since it did not specify the rule under which the application was brought.</p> <p>In the instant case, the application brought the application by notice of motion seeking an order of this court to transfer a civil suit from the magistrates court to the civil procedure Act. The application however did not cite the rule under which the application was brought under action 18 of the CPA. All applications to the court save where otherwise expressly provided for under the civil procedure Rules are brought by notice of motion under 048 r1 of the CPR. This must be cited. On the principle in Odongkara above, this application is defective for failure to cite the rule under which it was brought to court.</p> <p>Secondly the application was not presented to court. Counsel simply stated that “I am applying that the application be allowed and the order he made transferring the case to the High Court.” that is not enough. Counsel is expected to formally present his application and argued it. This was not done. For the reasons given above, the application must and is hereby dismissed. Since counsel for the Respondent of the Respondent himself did not appear, I make no order as to cost.</p> <p>G.M OKELLO</p> <p>JUDGE</p> <p>27/5/93</p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-a64fc678326f7bbe04e9a6a7f5be8a97"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/high-court/1993/28/high-court-1993-28.docx" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Mon, 27 Jul 2015 14:09:34 +0000 Anonymous 19009 at https://old.ulii.org Mutonyi Margaret Wakyala & Ors Vs. Tito Wakyala & Ors ( HCT-04-CV-CR-0007-2011) [2011] UGHC 117 (15 August 2011); https://old.ulii.org/ug/judgment/high-court/2011/117 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/civil-procedure" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Civil Procedure</a></li><li class="field-item odd"><a href="/tags/jurisdiction-1" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Jurisdiction</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p>&nbsp;</p> <p><strong>THE REPUBLIC OF UGANDA</strong></p> <p><strong>IN THE HIGH COURT OF UGANDA</strong></p> <p><strong>HOLDEN AT MBALE</strong></p> <p>&nbsp;</p> <p><strong>1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>HCT-04-CV-CR-0007-2011</strong></p> <p><strong>(FROM BUSIU LC.III CIVIL SUIT NO. 001/2011)</strong></p> <p><strong>MUTONYI MARGRET WAKYALA……………………APPLICANT</strong></p> <p><strong>VERSUS</strong></p> <p><strong>TITO WAKYALA……………………………………..RESPONDENT</strong></p> <p>&nbsp;</p> <p><strong>2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>HCT-04-CV-CR-0008-2011</strong></p> <p><strong>(FROM NAMABYA LC.III CIVIL SUIT NO. 004/2011)</strong></p> <p><strong>BETTY MAKUTUSI………………………………………APPLICANT</strong></p> <p><strong>VERSUS</strong></p> <p><strong>WASWA HASSAN………………………………………..RESPONDENT</strong></p> <p>&nbsp;</p> <p><strong>3.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>HCT-04-CV-CR-0009-2011</strong></p> <p><strong>(FROM BUKIENDE LC.III CIVIL SUIT NO. 12/2009)</strong></p> <p><strong>MARGRET NAMBUYA…………………………………APPLICANT</strong></p> <p><strong>VERSUS</strong></p> <p><strong>KABOOLE STEPHEN………………………………..RESPONDENT</strong></p> <p>&nbsp;</p> <p><strong>4.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>HCT-04-CV-CR-0010-2011</strong></p> <p><strong>(FROM NAKALOKE LC.III CIVIL SUIT NO. 02/2010)</strong></p> <p><strong>SHABAN WANGOLO………………………………………APPLICANT</strong></p> <p><strong>VERSUS</strong></p> <p><strong>&nbsp;JOHN EMMANUEL MASAYA………………………..RESPONDENT</strong></p> <p>&nbsp;</p> <p><strong>5.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>HCT-04-CV-CR-0012-2011</strong></p> <p><strong>(FROM BUSIU LC.III CIVIL SUIT NO. 48/2011)</strong></p> <p><strong>WAKAPIRI CHARLES…………………………………APPELLANT</strong></p> <p><strong>VERSUS</strong></p> <p><strong>MASINDE RICHARD………………………………..RESPONDENT</strong></p> <p>&nbsp;</p> <p><strong>BEFORE: THE HON. MR. JUSTICE MUSOTA STEPHEN</strong></p> <p>&nbsp;</p> <p><strong>REVISION ORDERS</strong></p> <p>&nbsp;</p> <p>Before me are 5 Revision files listed above which concern the same subject matter as contained in a write up from the Chief Magistrate addressed to the learned Deputy Registrar regarding the propriety of proceedings handled by the various LC.III Courts as courts of first instance.&nbsp; I will quote verbatim the views of the learned Chief Magistrate while requesting for possible revision orders as follows:-</p> <p>“<em>All the above land disputes were handled by the respective LC.III Courts and referred to me either on complaint or with requests to order execution proceedings.</em></p> <p><em>Upon perusal, all were handled by LC.III Courts as courts of first instance.&nbsp; The courts usually move under S.22 (5) of the Local Council Courts Act (LCCA) which provides; </em></p> <p><em>“At the hearing of a case in a town, division or sub-county local council court whether sitting as original or appellate court a summary of evidence given by each person shall be recorded separately.”</em></p> <p><em>In my opinion the above section does not confer upon the LC.III Court powers to act as court of first instance.&nbsp; Jurisdiction is determined by S.10 and 11 Local Council Courts Act (LCCA) and by implication S.32 which determines how appeals lie from LC.I to LC.II to LC.III etc.&nbsp; But more specifically, jurisdiction of LC Courts in land matters is conferred by S.76A (1) of the Land (Amendment) Act 2004.&nbsp; </em></p> <p><em>It provides </em></p> <p><em>“Not withstanding the provisions of Ss 5,7 and 29 of the Executive Committee (Judicial Powers) Act, the parish or Ward Executive Committee Courts shall be courts of first instance in respect of land disputes.” </em></p> <p><em>S.5, 7 and 29 are similar to S.10, 11 and 32 of the LCCA which amended the Executive Committee (Judicial Powers) Act.</em></p> <p><em>Based on the above I believe the LC III Courts acted without jurisdiction and may continue to do so unless checked.&nbsp; I’m forwarding the files to you for placement before the Resident Judge for Revision Orders under S.83(a) of the Civil Procedure Act or for determination of the following questions of law under S.16 (2) of the Judicature Act.</em></p> <p><em>Questions:</em></p> <p><em>(1)</em><em>Whether S.22 (5) of the Local Council Courts Act confers upon LC.III Court powers to determine land disputes as a court of first instance.</em></p> <p>(2)<em>If so, how does that affect S.76A of the Land (Amendment) Act, 2004 and how does it affect the jurisdiction of the LC.II Courts</em>.”</p> <p>&nbsp;</p> <p>After studying the legislation referred to by the learned Chief Magistrate, I tend to agree with her views.&nbsp; The law which establishes and outlines the composition of Local Council Courts is The Local Council Courts Act 2006.&nbsp; This Act has to be read together with The Local Council Courts Regulations 2007 which lays down the procedure to be followed while filing cases in the local council courts and how the hearing of the said cases have to be conducted in the respective courts.</p> <p>&nbsp;</p> <p>Under S.10 LCCA, subject to any other written law every local council Court shall have jurisdiction for the trial and determination of---</p> <p>a)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Causes and matters of a civil nature specified in the second schedule to the Act.&nbsp; The second Schedule lists the matters as.</p> <p>1.&nbsp;&nbsp;&nbsp;&nbsp; Debts</p> <p>2.&nbsp;&nbsp;&nbsp;&nbsp; Contracts</p> <p>3.&nbsp;&nbsp;&nbsp;&nbsp; Assault of Assault and batter</p> <p>4.&nbsp;&nbsp;&nbsp;&nbsp; Conversion</p> <p>5.&nbsp;&nbsp;&nbsp;&nbsp; Damage to property</p> <p>6.&nbsp;&nbsp;&nbsp;&nbsp; Trespass.</p> <p>b)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Causes and matters of a civil nature governed by customary law specified in the third schedule and these are</p> <p>(i)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; disputes in respect of land held under customary tenure;</p> <p>(ii)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; disputes concerning marriage, marital status, separation, divorce or the parentage of children;</p> <p>(iii)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; disputes relating to the identity of a customary heir;</p> <p>(iv)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; customary bailment.</p> <p>c)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Causes and matters arising out of infringement of bye laws and ordinances duly made under the Local Government Act.</p> <p>d)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Matters specified under the Children Act.</p> <p>e)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Matters relating to land.</p> <p>S.10 LCCA goes ahead to specify the pecuniary jurisdiction for matters specified in the second schedule to be of a value not exceeding one hundred currency points and those in schedule three to be of unrestricted monetary value.&nbsp; According to the first schedule of the LCCA a currency point is equivalent to twenty thousand shillings.</p> <p>&nbsp;</p> <p>S.11 of the LCCA provides for where to institute suits thus:-</p> <p>“(1) <em>Every suit shall be instituted in the first instance in a village local council court if that court has jurisdiction in the matter……</em>”</p> <p>This jurisdiction envisages territorial and pecuniary jurisdiction and location where the defendant actually resides at the time of commencement of the suit or where the cause of action in whole or in part arises; or in the case of immovable property, where the property is situated.&nbsp;</p> <p>&nbsp;</p> <p>Therefore regarding whether an LC.III Court has original jurisdiction, the answer is found in Regulation 32 of the Local Council Courts Regulations which amplifies S.11 LCCA.&nbsp; It provides that:-</p> <p>“(1) <em>Every suit shall be instituted in the first instance in a village local council court, within the area of whose jurisdiction the defendant resides at the time of the suit or where the cause of action in whole or part arises or where the immovable property in dispute is located.&nbsp; </em></p> <p>&nbsp;</p> <p>As correctly pointed out by the learned Chief Magistrate neither S.22 (5) LCCA nor Ss.10 and 11 confer upon the LC.III Court powers to act as a court of first instance.&nbsp; The jurisdiction of the LC.III Court is found in S.32 which deals with the mode of appeal. &nbsp;A party dissatisfied with a judgment or order of a local Council Court may subject to the provisions of S.32 or any other written law appeal against the judgment or order</p> <p><em>(b) ……… of a parish local council court to a town division or sub-county council court.</em>”</p> <p>Therefore the respective LC.III Courts acted without jurisdiction when they heard the above cases as courts of first instance.&nbsp; Their actions were null and void <em>ab initio</em> and will be set aside on that account respectively.</p> <p>&nbsp;</p> <p>Regarding the second question raised by the learned Chief Magistrate, this has to be considered in light of the enactment of the Local Council Courts Act which has been extensively considered herein above <em>vis-a-vis</em> S.76A of the Land Amendment Act 2004 which gave the LC.II Courts power to handle land matters as courts of first instance.&nbsp; There appear to be concurrent in land matters given to both the LC II Courts under the Land Amendment Act and LC I Courts the Local Council Act because the latter Act did not expressly repeal the former.</p> <p>S.10 (1) of the LCCA commences thus:-</p> <p>“(1) <em>Subject to the provisions of this Act and of any other written law every local council court shall have jurisdiction for the trial and determination of ……………… matters relating to land</em>.”</p> <p>&nbsp;</p> <p>One may argue that S.76 A of the Land Act is “any other written law” which is still in force since it was not specifically repealed by the LCCA which is a later statute but this is likely to cause confusion and absurdities in view of the third schedule to the LCCA which gives Local Council Courts jurisdiction to handle civil disputes governed by customary law and disputes in respect of land.&nbsp; The LCCA goes ahead to provide that such disputes have to commence in the lowest council court which is a village court as per S.11 of the LCCA amplified by Regulation 32 of the Local Council Courts Regulations (supra).</p> <p>&nbsp;</p> <p>It is my considered view that this absurdity can be resolved by applying the principles of statutory interpretation and rules which govern legislative drafting.</p> <p>It is trite law that where an earlier statute is in conflict with a later one, the later statute prevails.&nbsp; This is a conclusion based on the assumption that the Legislature keeps abreast with the needs of the time and is wiser as time passes.&nbsp; <strong><em>Uganda Revenue Authority v. Uganda Electricity Board HCT-CA-001-2006</em></strong>.</p> <p>In <strong><em>Re Williams (1887) 36 ch. D 537 at 578</em></strong> held,</p> <p>“<em>And it appears to be a Constitutional necessity as well as an established rule of construction that the last utterances of the legislature should prevail over earlier statutes inconsistent with it</em>.”</p> <p>I will add that the Legislature cannot be assumed to have made a mistake when it enacted the Local Council Courts Act which is the later statute while an earlier Land Amendment Act which it had passed was still in force.</p> <p>&nbsp;</p> <p>To justify this reasoning I will refer to the case of <strong><em>Income Tax v. Pemal (1891) A.C. 531 at 549 </em></strong>followed in<strong><em>Supreme Court Civil Appeal 1 of 1989 the Attorney General v. Silver Springs Hotel Ltd and 9 Others.&nbsp; Lord Hulsbury</em></strong> said:</p> <p>“<em>But I do not think it competent for any court to proceed upon the assumption that the Legislature has made a mistake whatever the real fact may be, I think a Court of Law is bound to proceed on the assumption that the legislature is an ideal person that does not make a mistake</em>.”</p> <p>The Land (Amendment) Act No.1 of 2004 did allow the LC.II Court to handle matters concerning land disputes as a court of first instance removing jurisdiction from the LC.I Court.&nbsp; However by virtue of S.11 of the LCCA No.13 of 2006 this matter was revisited by the Legislature and as of now jurisdiction was restored to the LC.I Court. Suits have to be commenced in the LC.I court as a court of first instance.&nbsp; While there is no express repeal of the powers of the LC.II Courts under the Land Act in the LCCA, there is implicit or implied repeal thereof rendering the powers of LC.II Courts stale which cannot be enforced by any court of law.</p> <p>Several well known principles of construction support my conclusion.</p> <p>&nbsp;</p> <p>In Legislative Drafting and Forms 4<sup>th</sup> Edition at P.51 Sir Alison Russell K.C points out that:-</p> <p>“<em>The general presumption is against such a repeal on the ground that the intention to repeal if any had existed, would be declared in express terms; but it is not necessary that any express reference be made to the statute which is to be repealed.&nbsp; The prior Act would be repealed by implication --</em></p> <p><em>(a)</em><em>If its provision were wholly incompatible with the subsequent Act, or</em></p> <p><em>(b)</em><em>If the two Acts together would lead to wholly absurd consequences, or</em></p> <p>(c)&nbsp; <em>If the entire subject matter were taken away by the subsequent Act</em>.”</p> <p>&nbsp;</p> <p>Therefore the LCCA which is a later statute repealed S.76A of the Land Act by implication thus removing powers from the LC.II Courts acting as court of first instance in land matters.&nbsp; It also completely reformed the appeal process in land matters as provided for under S.32 of the LCCA.</p> <p>&nbsp;</p> <p>Consequently I will hold that the LC.II Courts no longer have jurisdiction in land matters as courts of first instance.</p> <p>All the affected decisions by the LC.III Courts in the above cases are null and void and are set aside.</p> <p>Retrials will be conducted in accordance with the law and if parties so wish.</p> <p>&nbsp;</p> <p>&nbsp;</p> <p><strong>Musota Stephen</strong></p> <p><strong>JUDGE</strong></p> <p><strong>16.8.2011</strong></p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-941a53894fae069a2a812bef84162940"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/high-court/2011/117/high-court-2011-117.rtf" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Mon, 27 Jul 2015 14:00:45 +0000 Anonymous 17966 at https://old.ulii.org Opoka Odwong V Gulu Local Government (Misc. Civil Appeal No. 4 of 1996) ((Misc. Civil Appeal No. 4 of 1996)) [1996] UGHC 9 (1 April 1996); https://old.ulii.org/ug/judgment/high-court-uganda/1996/9 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/civil-procedure" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Civil Procedure</a></li><li class="field-item odd"><a href="/tags/jurisdiction-1" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Jurisdiction</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p>&nbsp;</p> <p><strong><u>THE</u></strong><strong><u> </u></strong><strong><u>REPUBLIC</u></strong><strong><u> </u></strong><strong><u>OF UGANDA</u></strong><br /> <strong>IN THE HIGH COURT OF UGANDA<br /> AT GULU</strong><br /> <strong>&nbsp;</strong><strong>MISC. CIVIL APPEAL NO. 4 OF 1996<br /> (ORIGINAL CHIEF MAGISTRATE’S</strong><strong> CASE</strong><strong> NO</strong><strong>.MG .25/92)</strong></p> <div><strong>OPOKA </strong></div> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-001ec98434be33e020bc406f38173d4c"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/high-court/1996/9/high-court-1996-9.rtf" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Mon, 27 Jul 2015 13:54:22 +0000 Anonymous 16718 at https://old.ulii.org M.Buwule v Stirling International Civil Engineering ((Civil Appeal No.7 Of 2000)) [2009] UGCA 58 (14 December 2009); https://old.ulii.org/ug/judgment/court-appeal/2009/58 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/civil-procedure" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Civil Procedure</a></li><li class="field-item odd"><a href="/tags/jurisdiction-1" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Jurisdiction</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><div><strong>THE REPUBLIC OF UGANDA</strong><br /> <br /> <strong>IN THE COURT OF APPEAL OF UGANDA AT KAMPALA</strong><br /> <br /> <strong>CIVIL</strong><strong> </strong><strong>APPEAL</strong><strong> </strong><strong> </strong><strong>NO. 07 OF 2000</strong><br /> <br /> <strong>M.</strong><strong> </strong><strong>BUWULE</strong><strong> </strong><strong>:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT</strong><br /> <strong>VS<br /> STIRLING INTERNATIONAL </strong><br /> <strong>CIVIL ENGI</strong><strong>NEERING (U) LTD</strong><strong>:::::::::::::</strong><strong>::::::::::::::::::::::::::::</strong><strong>RESPONDENT</strong><br /> <br /> <strong><u>RULING BY RUHINDA A. NTENGYE, ESQ; REGISTRAR</u></strong><br /> <br /> This ruling arises out of a preliminary objection raised by counsel for Sterling Civil Engineering Ltd to the effect that this court has no jurisdiction to execute its orders or substitute a judgment debtor after judgment.<br /> <br /> The background is that the appellant filed this appeal in this court against the judgment of the High Court on 21/02/2000.<br /> This court upheld the judgment of the High Court and the respondent appealed to the Supreme Court. In the meantime, according to the appellant (respondent in the Supreme Court) assets and liabilities of the respondent (Stirling International Civil Engineering Ltd.) were transferred to Stirling Civil Engineering Ltd. Subsequently the Supreme Court dismissed the appeal for non-prosecution on 14/10/2004.<br /> <br /> In <strong>Civil Appeal No.05/2004,</strong><strong>BEATRICE</strong><strong> KOBUSINGYE VS FIONA NYAKANA &amp; GEORGE NYAKANA.</strong><br /> The Supreme Court at Page 14 of the lead judgment by Justice Tsekooko JSC says;</div> <div><strong>“I now return to the general applicability of the Civil Procedure Act. As I will explain, this is to be found in the old S.12 (now S.11) of the Judicature Act. The section reads as under:</strong></div> <div><strong><em>‘for the purpose of hearing and determining an appeal the Court of Appeal shall have all powers, authority and jurisdiction vested under any written law in the court from t</em></strong><strong><em>h</em></strong><strong><em>e exercise of original jurisdiction of which the appeal original</em></strong><strong><em>ly</em></strong><strong><em> emanated</em></strong><strong><em>’.</em></strong></div> <div><strong>The powers, authority and jurisdiction referred to are those of any tr</strong><strong>i</strong><strong>al court whose decisions are appealed up to the Court of Appeal. This provision vests in the Court of Appeal the same powers, authority and jurisdiction which, for instance in this case, the grade I Magistrate exercised when he tried and determined the case.”</strong><br /> &nbsp;</div> <div>Section 45(2) of the same Judicature Act the heading of which is, “Process of execution” in reinforcing section II discussed in the above case provides;</div> <div><strong><em>“</em></strong><strong><em>Any order or judgment of the Supreme Court or the Court of Appeal given in the exercise of their jurisdiction under this Act may be executed as if it were an order or judg</em></strong><strong><em>ment of the High C</em></strong><strong><em>ourt.”</em></strong><br /> &nbsp;</div> <div>It is my considered opinion that in matters of execution this court has concurrent jurisdiction with the High Court. It is not therefore true that this court has no jurisdiction to execute its orders/decrees/judgments.<br /> <br /> As to whether this court (of a registrar of the Court of Appeal) has power to substitute a judgment debtor, it is my considered opinion that this court has no such jurisdiction. The facts reveal that Stirling International Civil Engineering Ltd was the respondent in the proceedings in this court but either just before or after pronouncement of the decision of the Supreme Court the name was changed to Stirling Civil Engineering Ltd. The question is whether all assets and liabilities of the former company were transferred to the latter such that this court may be able to carry out execution of the order.<br /> <br /> In my view the question is controversial and this court may not have jurisdiction to decide it.<br /> It can only be determined by a full panel of the court in the same way it determined the appeal itself on merits. Since the preliminary point has been successful only in part, no costs are awarded.<br /> <br /> <br /> Dated at Kampala this …15<sup>th</sup> ….day of …December……..2009<br /> <br /> <br /> Ruhinda A. Ntengye<br /> Registrar, Court of Appeal</div> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-eed323a6838fcda0e58a51205e38058e"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/court-appeal/2009/58/court-appeal-2009-58.rtf" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Mon, 27 Jul 2015 13:42:57 +0000 Anonymous 16207 at https://old.ulii.org Mwami v Attorney General (CONSITUTIONAL APPLICATION NO. 821 OF 2013) [2013] UGCC 14 (13 December 2013); https://old.ulii.org/ug/judgment/supreme-court-uganda/2013/14 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/jurisdiction-1" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Jurisdiction</a></li><li class="field-item odd"><a href="/tags/constitutional-law" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Constitutional Law</a></li><li class="field-item even"><a href="/tags/have-his-cause-heard-fair-trial" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Have his cause heard (fair trial)</a></li><li class="field-item odd"><a href="/tags/hr" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">HR</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p><strong>THE REPUBLIC OF UGANDA </strong></p> <p><strong>IN THE COURT OF APPEAL OF UGANDA AT KAMPALA</strong></p> <p><strong>CONSITUTIONAL APPLICATION NO. 821 OF 2013</strong></p> <p><strong>RICHARD MWAMI ================================= APPLICANT</strong></p> <p><strong>VERSUS</strong></p> <p><strong>ATTORNEY GENERAL ============================= RESPONDENT </strong></p> <p><strong>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; CORAM:&nbsp;&nbsp;&nbsp; HON. MR. JUSTICE KENNETH KAKURU, JA</strong></p> <p><strong>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <em>(SINGLE JUSTICE)</em></strong></p> <p>&nbsp;</p> <p><strong><u>RULING</u></strong></p> <p>This Application is stated in the notice of motion to have been brought under Article 28 of the Constitution, Rule 2(2) 43 (1) (2) and 44 of the Rules of this Court and Section 98 and 64 (e) of the Civil Procedure Act.</p> <p>It seeks to vary the bail terms upon which the applicant was released pending trial at the High court Anti Corruption Division. The variation sought relates to the release of the applicant’s Passport which he deposited at the High Court as one of the bail terms.</p> <p>The brief background to this application as far as I could ascertain from the record before me is as follows:-</p> <p>The applicant stands charged with the offence of Embezzlement contrary to Section 19 (b) (i) of the Anti Corruption Act 2009 and neglect of duty contrary to Section 2(i) and 26(2) of the same Act <em>vide</em> <strong>High Court Anti Corruption Division Criminal Session case No. 123 of 2012; Uganda Versus Patrick Ssentongo and others</strong>. &nbsp;</p> <p>He stands accused of stealing 67.029/= Million shillings belonging to his employer MTN (U) Ltd in one Count and in another of stealing 3.759/= Billion shillings from the same employer.</p> <p>While this case was pending hearing at the High Court, one David Wesley Tusingwire filed a petition in this court <em>vide </em>Constitutional Petition No. 2 of 2013. Apparently he also filed in the same court an application for stay of proceedings at the Anti Corruption Court pending the hearing and determination of the Constitutional Petition and Constitutional Application No. 6 of 2013. This Court then granted the orders staying proceedings at the Anti Corruption Court pending the hearing and the determination of the said petition.</p> <p>The petition is still pending determination. The applicant then brought this application.</p> <p>At the hearing of this application Mr. Fred Muwema learned counsel for the applicant appeared for the applicant who was present in Court.</p> <p>Mr. Oburu Odio appeared for the respondent.</p> <p>Mr. Muwema submitted that this court has jurisdiction to hear and determine this application. That the applicant’s case at the High Court awaits the determination of <strong>Constitutional Petition No. 2 of 2013 (supra).</strong> That he is an interested party in that petition as the outcome directly affects him. To that extent he argued he qualifies to be a party in that petition. He referred me to the case of <strong><u>Onyango Obbo and another versus Attorney General (Supreme Court) Constitutional Appeal No.2 of 2002</u></strong> which is to the effect that where a matter is pending constitutional interpretation before this court proceeding relating to it in other courts out to be stayed pending the determination of the Constitutional Petition.</p> <p>He contends that since the applicant’s trial was stayed by this court all matters now arising there from and related thereto could be determined by this Court.</p> <p>He contends that the applicant requires access to his Passport in order to visit his children who study outside the jurisdiction of this court and also to be able to carry out his work which requires frequent travel abroad. He referred me to a host of authorities which I will revert to later. Mr. Oburu objected to this application and relied on the affidavit filed in reply by the respondent. He contended that the applicant is not a party to Constitutional Petition No. 2 of 2013 and as such he cannot bring this application as arising from that petition.</p> <p>That this court has no jurisdiction to entertain a matter except where the interpretation of the Constitution is sought under Article 137 of the Constitution.</p> <p>He contended that even if this application was properly before court, it could only be determined by a panel of three justices and not a single justice of this Court. This he argued was because the order staying the proceedings at the Anti Corruption Court was issued by a panel of three Justices of Appeal.</p> <p>He submitted that this application ought to have been filed at the High court which has unlimited jurisdiction.</p> <p>I have heard the submissions of both counsel, I have also read the pleadings and the authorities filed in this application, even those that are not directly referred to in this ruling.</p> <p>The law cited by the applicant herein does not directly concern the issues raised in this application. Article 28 of the Constitution relates to the right to a fair hearing. It does not relate to bail. It relates to the presumption of innocence. However in this case the applicant is already released on bail a confirmation that he right of innocence has been upheld and protected by Court.</p> <p>The rest of the provision of law cited relate to general powers of court. I do not think an application for bail or variation of terms thereof can be entertained under the general powers of court.</p> <p>Be that as it may I am inclined to entertain this application in the form it has been presented, because it raises important issues of law that require to be settled.</p> <p>The first issues raised in this application concerns jurisdiction of this court and <em>locus standi</em> of the applicant to bring this action. It was submitted by Mr. Muwema that this court has jurisdiction to entertain this application and grant the orders sought and the applicant has <em>locus standi</em> to bring this action.</p> <p>He cited the case of <strong><u>Bassajabalaba and another versus The Attorney General Constitutional Application No. 9 of 2013</u></strong>.</p> <p>In that case the applicants were parties to Constitutional Petition No. 12 of 2013 from which the application arose. This settled the issue of <em>locus standi</em> on their part. In this application the applicant is not a party to the Constitutional Petition No. 02 of 2013 from which this application is said to arise from.</p> <p>In an application similar to this <strong><u>Magombe Joseph versus Uganda, Constitutional Application No. 61 of 2013</u></strong> Hon. Justice Kiryabwire, JA had this to say on this particular point of locus standi.</p> <p><em>“Applying the rules of procedure to this situation I am inclined to agree with counsel for the respondent as a stranger to the lead petition or application No. 6 of 2013 cannot file an independent application (originating from the other two) because he has no locus standi to do so”.</em></p> <p>I agree entirely with the above proposition of the law. The applicant has no <em>locus standi</em> to bring this action. If he wished to be joined as a party to the lead petition he would have to do so, he has not. The case of <strong>Onyango Obbo (supra)</strong> does not apply. The facts were different. I do not agree that every person effected by or who claims to have an interest in constitutional matters can be regarded as party. The lead petition herein seems to have been brought in public interest. In my understanding every member of the public has an interest in that petition. It cannot be stated that every member of the public is a party to that petition. Public interest suit differs from a representative suit.</p> <p>See <strong><u>The Environmental Action Network versus The Attorney General and The National Environment Management Authority High Court Miscellaneous Application No. 39 of 2001</u></strong> cited with approval of this Court <strong>is Davis Wesley Tusingwire case (supra)</strong>.</p> <p>On this ground alone this application would fail. However I will proceed to determine the other issues raised in this application in the interest of justice and for clarity.</p> <p>Mr. Muwema first argued that the <u>Wesley Tusingwire Ruling</u> stayed the proceedings at the anti Corruption Court including the High Court.</p> <p>The orders made in that ruling are as follows:-</p> <ol> <li><strong><em>The criminal proceedings currently going on in the High Court Anti Corruption Division at Kololo before, and those arising from, the Chief Magistrate and Magistrate Grade 1 or any other Magistrate attached to the HCACD at Kololo be and are hereby</em></strong><strong> <em>stayed pending the disposal of Constitutional Petition No. 2 of 2013 or until such other or further orders of this Court.</em></strong></li> <li><strong><em>The orders made herein shall not have retrospective application to proceedings taken and concluded by the HCACD prior to the delivery of this ruling. </em></strong></li> <li><strong><em>The costs of this application shall abide the outcome of Constitutional Petition No. 2 of 2013.&nbsp; </em></strong>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</li> </ol> <p>Clearly the proceedings that were stayed by the above order were those <u>before and arising from the Chief Magistrate, Magistrate Grade 1 and any other Magistrate attached to that court</u>.</p> <p>The order did not effect the High Court in any way. It was conceded by Mr. Muwema that the applicant’s bail is still being renewed by the High Court, a clear admission that the court is operational and was never shut down by the said order.</p> <p>If the order had the effect of shutting down the High Court then the applicants’ bail would have lapsed long ago and I would have nothing to vary. There is no such a thing as indefinite bail. Bail is renewable periodically and lapses if it is not.</p> <p>If it is the argument of counsel for the applicant that the High court was shut down, then he would be inviting me accordingly make an order remanding the applicant in prison as his bail would have lapsed.</p> <p>This is a very self defeating argument that does not make sense to me at all in this application.</p> <p>I agree with my brother Justice Kiryabwire, JA in <strong>Magombe case (supra)</strong> that the High Court of Uganda was not in any way affected by the Ruling in <u>Tusingwire case</u> (supra. The applicant is therefore free to make this application in the High Court. The Constitutional Court has original jurisdiction under Article 137 to interpret the Constitution and to deal with other matters arising there from provided they arise out of a matter that requires constitutional interpretation.</p> <p>See <strong><u>Attorney General versus Major General David Tinyefuza Supreme Court Constitutional Appeal No. 1 of 1997</u></strong>.</p> <p>This is not one of those cases. The constitutional court has no original jurisdiction to entertain bail applications or vary bail terms.</p> <p>Even if this application had been properly brought under the lead petition that is <u>The Wesley Tusingwire case</u> (supra) I would still have dismissed it on account that that petition has no likelihood of success on the face of it. It discloses no questions for constitutional interpretation at all in my view.</p> <p>There is only one High Court in Uganda established under Article 139 of the Constitution. In the exercise of its unlimited original jurisdiction by law it requires the support of subordinate courts. It does not and cannot exercise its criminal jurisdiction in isolation of other Courts of Judicature above or subordinate to it.</p> <p>Section 1 of the Trial on Indictments Act (Cap 23) stipulates as follows:-</p> <ol> <li><strong><em><u>Jurisdiction of the High Court</u></em></strong>.</li> </ol> <p><em>The High Court shall have jurisdiction to try any offence under any written law and may pass any sentence authorized by law: except that <u>no criminal case shall be brought under the cognizance of the High Court for trial unless the accused person has been committed for trial to the High Court in accordance with the Magistrates Court Act</u>” </em></p> <p>Accordingly it is envisaged that at all times the High Court exercises its jurisdiction in Criminal matters with support of Magistrates Courts. Suffice it to say in my view <em>prima facie </em>that petition discloses nothing for constitutional interpretation in any event is frivolous<em>.</em></p> <p>Even if that was not the case I would still have declined to grant this application because I am not satisfied that the grounds set out in the notice of motion and the accompanying affidavit disclose a sufficient reason to vary bail conditions. Bail by necessity entails restrictions. This is basically to ensure that the accused turns up for trial. Many factors are taken into consideration before bail is granted and conditions are imposed.</p> <p>In this particular case the applicant is charged with stealing colossal sum of money in Billions of Shillings. It is extremely important that he remains within jurisdiction of this Court. I was not availed the Ruling of the High Court granting bail to the applicant and as such I am unable to ascertain all the conditions that were set and the reasons that were given for imposing those conditions.</p> <p>As an accused person he must accept to forfeit some of his freedoms and luxuries. His employers or partners must know that they employed a person who is charged with serious criminal offences. They must accept that restrictions have been lawfully imposed on him, by courts of law.</p> <p>His children too must accept that their father is charged with stealing colossal sums of money and as such his movements have been restricted by court. He is at liberty to find for them schools within the jurisdiction of this court. This does not in any way limit his constitutional right of presumption of innocence. I find the reasons for variation of bail conditions frivolous and untenable.</p> <p>I find no merit whatsoever in this application and I dismiss it accordingly, with costs to the respondent.</p> <p>Dated at Kampala this....13<sup>th</sup>.... day of ....December..., 2013</p> <p>&nbsp;</p> <p><strong>..............................</strong></p> <p><strong>HON. KENNETH KAKURU</strong></p> <p><strong>JUSTICE OF APPEAL.</strong></p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-736a3ec875806e8705fb00a823e0ac0f"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/constitutional-court/2013/14/constitutional-court-2013-14.doc" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Mon, 27 Jul 2015 13:39:10 +0000 Anonymous 15875 at https://old.ulii.org Namugerwa v Attorney General (CIVIL APPEAL NO. 04 OF 2012 ) [2013] UGSC 20 (19 June 2013); https://old.ulii.org/ug/judgment/supreme-court/2013/20 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/jurisdiction-1" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Jurisdiction</a></li><li class="field-item odd"><a href="/tags/criminal-law" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Criminal law</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><div> <div> <table cellpadding="0" cellspacing="0" style="height:120px; mso-element-frame-height:1.25in; width:649px"> <tbody> <tr> <td> <p><strong>THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA</strong></p> </td> </tr> </tbody> </table> <div>&nbsp;</div> &nbsp; <table cellpadding="0" cellspacing="0" style="height:751px; mso-element-frame-height:563.45pt; width:649px"> <tbody> <tr> <td> <p><strong>(CORAM: ODOKI, C.J.; KATUREEBE; KITUMBA; TUMWESIGYE AND&nbsp;</strong>&nbsp;KISAAKYE;<strong>JJSC.)</strong></p> <p><strong>CIVIL APPEAL NO. 04 OF 2012 </strong></p> <p><strong>BETWEEN</strong></p> <p>NAMUGERWA HADIJAH::::::::::::::::::::::::::::: APPELLANT</p> <p>&nbsp;</p> <p>AND D.P.P. AND ATTORNEY GENERAL :::::::::RESPONDENTS</p> <p>[Appeal from the judgment of the Court of Appeal at Kampala (Mpagi-Bahigeine,</p> <p>&nbsp;D.C.J., Nshimye and Arach-Amoko, JJ.A) dated 14<sup>th</sup> June 2012 in Civil Appeal No. 10 of 2012]</p> <p>JUDGMENT OF TUMWESIGYE, JSC</p> <p>&nbsp;This appeal by Namugerwa Hadijah (the appellant) originates from her application in the High Court for a writ of habeas corpus for the release of her brother Ssali Mohamed from Kigo Government prison. The appellant claimed in her application to the High Court that her brother was a civilian and that, therefore, the General Court Martial had no jurisdiction over him, and that he was being unlawfully held. The High Court dismissed her application, and her appeal to the Court of Appeal was also dismissed. She then appealed to this court.</p> </td> </tr> </tbody> </table> <div>&nbsp;</div> </div> &nbsp; <div> <table cellpadding="0" cellspacing="0" style="height:858px; mso-element-frame-height:643.35pt; width:652px"> <tbody> <tr> <td> <p><strong><u>Background facts.</u></strong></p> <p>The appellant’s brother, Ssali Mohamed, along with two others, was on 14<sup>th</sup> January 2011 arrested and charged before the general Court Martial with Aggravated Robbery and two other offences relating to the Firearms Act. He was thereafter taken to Kigo Government Prison where he was held. The charge sheet drawn up against him had three counts. Count 1 was Aggravated Robbery contrary to Section 285 and 286(2) of the Penal Code Act. The particulars of this count were that Ssali Mohamed and &nbsp;two others on the 14<sup>th</sup> day of January 2011 at about 22.30 hours at Makindye in Kampala District robbed one Edison Nuwamanya of a motorcycle and at or immediately before or immediately after the said robbery used a deadly weapon, to wit, a Back Star Pistol S/No. P99A on the said victim, the said Pistol being ordinarily a <strong>20</strong> monopoly of the Defence Forces.</p> <p>The second and third counts of the charge sheet relate to unlawful possession of a firearm and unlawful possession of ammunitions contrary to section 3(1) (2)(a) and (b) and section 25 3(1) (3) and (4) of the Firearms Act respectively. The particulars of the two offences are almost similar except that one relates to unlawful possession of a firearm while the second relates to unlawful possession of ammunitions. The particulars of the second count of the charge sheet, for example, state that Ssali&nbsp;&nbsp;Mohamed and two others on the 14<sup>th</sup> day of January 2011 at about 22.30 hours at Makindye in Kampala District were found</p> </td> </tr> </tbody> </table> <div>&nbsp;</div> &nbsp; <table cellpadding="0" cellspacing="0"> <tbody> <tr> <td> <p>~ <strong>2</strong> ~</p> </td> </tr> </tbody> </table> <div>&nbsp;</div> </div> &nbsp; <div> <table cellpadding="0" cellspacing="0" style="height:910px; mso-element-frame-height:682.55pt; width:650px"> <tbody> <tr> <td> <p><strong>&nbsp;in </strong>possession of a firearm, to wit, a Black Star Pistol S/No. P99A, without holding a firearms certificate, the said Firearm being ordinarily the monopoly of the Defence Forces.</p> <p>Following Ssali Mohammed’s remand at Kigo Government Prison, the appellant on behalf of her brother applied to the High Court for a writ of habeas corpus ad subjiciendum for an order to have the body of Ssali Mohamed before court. The writ applied for was to be issued to the officer-in-charge of Kigo Government Prison, the Commander of the Uganda Peoples Defence Forces (hereinafter referred at as “UPDF”) and the Attorney General. It was based on Article 23(a) of the Constitution of Uganda, Section 34(a) of the Judicature Act and Rules 1, 2 and 3 of the Judicature (Habeas Corpus) Rules. It was registered as High Court Miscellaneous Cause No. 0152 of 2011.</p> <p>&nbsp;</p> <p>On 23<sup>rd</sup> November 2011 the High Court issued the initial order applied for and on 2<sup>nd</sup> December 2012 heard the application for the respondents to show cause why Ssali Mohamed should not be released. At the hearing of the application, Mr. Ladislaus Rwakafuuzi, counsel for the applicant, contended that Ssali Mohamed being a civilian was not subject to military law. Mr. Batanda Gerald, State Attorney and counsel for the respondents, submitted that the prisoner’s incarceration was lawful under section 119(1) (h) of the UPDF Act. The High Court (Zehurikize, J) ruled that the Black Star Pistol of which the accused persons were alleged to have been in possession and with which they were</p> </td> </tr> </tbody> </table> <div>&nbsp;</div> &nbsp; <table cellpadding="0" cellspacing="0"> <tbody> <tr> <td> <p>~ <strong>3</strong> ~</p> </td> </tr> </tbody> </table> <div>&nbsp;</div> </div> &nbsp; <div> <table cellpadding="0" cellspacing="0" style="height:923px; mso-element-frame-height:691.9pt; width:653px"> <tbody> <tr> <td> <p>alleged to have committed the robbery was ordinarily the monopoly of the Defence Forces and that, therefore, Ssali Mohamed was a person subject to military law by virtue of section 119(1) (g) and (h) of the UPDF Act, and consequently the General Court Martial had jurisdiction to try him. He accordingly</p> <p>&nbsp;dismissed the application. Dissatisfied with the ruling of the High Court the appellant appealed to the Court of Appeal which upheld the decision of the High Court and dismissed the appellant’s appeal.</p> <p><strong>&nbsp;Grounds of Appeal and counsel’s submissions</strong></p> <p>The appellant’s memorandum of appeal to this court contains two grounds which were framed as follows.</p> <ol> <li><strong>That the learned justices of Appeal erred in law when they found that the General Court Martial has</strong></li> </ol> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <strong><u>jurisdiction to try civilians for offences outside the</u></strong></p> <p><strong>UPDF Act. 2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; That the learned Justices of Appeal erred in law when they held that the General Court Martial has jurisdiction to try civilians for non-service offences.</strong></p> <p>&nbsp;</p> <p>In her memorandum of appeal the appellant asked the court to find that Ssali Mohamed was in illegal custody having been remanded by the General Court Martial for committing non­service offences outside the UPDF Act and grant a writ of habeas</p> <p>&nbsp;corpus to the appellant. She also prayed for the award of costs for this appeal.</p> </td> </tr> </tbody> </table> <div>&nbsp;</div> </div> &nbsp; <div> <table cellpadding="0" cellspacing="0" style="height:845px; mso-element-frame-height:634.1pt; width:612px"> <tbody> <tr> <td> <p>In this appeal Mr. L. Rwakafuuzi represented the appellant while Mr. Batanda Gerald, State Attorney, represented the respondents. They both made oral submissions.</p> <p>Learned counsel for the appellant submitted that Ssali Mohamed was charged with the offence of unlawful possession of a firearm and the offence of aggravated robbery before the General Court Martial; that he was a civilian and the offences he was charged with were in the Penal Code Act and the Firearms Act; that being in the said Acts the offences were civil offences and, therefore, the General Court Martial did not have jurisdiction to try him.</p> <p>He further argued that the jurisdiction of the General Court Martial as far as service offences were concerned was in Section 179 of the UPDF Act which provides that a person who does or omits to do an act in Uganda (or outside Uganda) which constitutes an offence under the Penal Code Act or any other enactment, commits a service offence. Therefore, he argued, the military courts’ jurisdiction for service offences was limited to only military personnel. The definition of “service offence” contained in Section 2 of the UPDF Act shows that it is only those who serve in the UPDF that can be charged with service offences, he contended. According to him, the Constitutional Court held in the case of <strong>Uganda Law Society vs. Attorney General </strong>(Constitutional Petition No. 18 of 2005) that the General</p> </td> </tr> </tbody> </table> <div>&nbsp;</div> </div> &nbsp; <div> <table cellpadding="0" cellspacing="0" style="height:878px; mso-element-frame-height:658.3pt; width:614px"> <tbody> <tr> <td> <p>Court Martial’s jurisdiction over civil offences was limited to only military personnel.</p> <p>He argued further that although section 119(1) (g) and (h) of the UPDF Act was not declared to be unconstitutional in the Supreme Court case of <strong>Attorney General vs. Uganda Law Society </strong>(Constitutional Appeal No. 1 of 2006), that section did not in itself create an offence. Accordingly, he submitted, the fact that a civilian was being charged in a military court under a civil law was unconstitutional.</p> <p>He argued that a civilian can only be subject to military law when he commits offences that bring him under the ambit of the UPDF Act, but Ssali Mohamed was being charged under civil law, not the UPDF Act. He argued that under the Firearms Act there were different definitions of “arms of war” and “firearms” and that, therefore, there should be a clear distinction between what is an arm ordinarily the monopoly of the UPDF and firearms; that a pistol which is a firearm cannot fall within arms ordinarily the monopoly of the UPDF; that since the Firearms Act gives power to the Police to licence those who wish to possess them, firearms cannot be a monopoly of the UPDF, and that moreover if the pistol which Ssali Mohamed was alleged to have been in unlawful possession of was a monopoly of the UPDF, it would have a mark as provided for under section 166 of the UPDF Act and the mark would be gazetted but that this was not so in this case.</p> </td> </tr> </tbody> </table> <div>&nbsp;</div> </div> &nbsp; <div> <table cellpadding="0" cellspacing="0" style="height:929px; mso-element-frame-height:696.7pt; width:614px"> <tbody> <tr> <td> <p>The learned State Attorney, Mr. Batanda, strongly opposed this appeal. He first raised an objection about the manner in which the appellant’s grounds of Appeal were framed, arguing that the grounds of appeal offended rule 82 of the Judicature (Supreme Court Rules) Directions. He submitted that rule 82 of the Supreme Court Rules requires that a memorandum of appeal should set forth concisely and under distinct heads the grounds of objection to the decision being appealed against, specifying the points which are alleged to have been wrongly decided; that the appellant’s grounds did not reflect the points which were alleged to have been wrongly decided because the points mentioned in the grounds of appeal were not the findings of the Court of Appeal; that the Court of Appeal did not find that the General Court Martial had jurisdiction to try civilians for offences outside the UPDF Act, nor did it find that the General Court Martial had jurisdiction to try civilians for non-service offences. Therefore, he submitted, the grounds were misconceived.</p> <p>Learned counsel further contended that learned counsel for the appellant failed to state the correct decision reached by both the Constitutional Court and the Supreme Court in <strong>Uganda Law Society vs. Attorney General </strong>(supra) and in <strong>Attorney General vs. Uganda Law Society </strong>(supra) respectively. He argued that the two courts did not hold anywhere in the above judgments that the jurisdiction of the General Court Martial was limited to only military personnel. He stated that the reasons why it was held in <strong>Attorney General vs. Uganda Law Society </strong>(Supra) that the 22 persons who were in remand prison and who were civilians were</p> </td> </tr> </tbody> </table> <div>&nbsp;</div> </div> &nbsp; <div> <table cellpadding="0" cellspacing="0" style="height:910px; mso-element-frame-height:682.3pt; width:654px"> <tbody> <tr> <td> <p>&nbsp;unlawfully before the General Court Martial was because the Anti-Terrorism Act under which they were charged vested jurisdiction exclusively in the High Court and that in addition, the Supreme Court found that the prosecution had not shown that the 22 persons on remand were subject to military law as is required by Section 119(1) (g) and (h) of the UPDF Act. In counsel’s view, therefore, the facts in the instant case and the Constitutional case of <strong>Uganda Law Society vs. Attorney General </strong>(supra) were quite distinguishable.</p> <p>&nbsp;Learned counsel conceded to counsel for the appellant’s argument that Section 119(l)(g) and (h) of the UPDF Act did not in itself create an offence, but he argued that the section extended the jurisdiction of the military courts to include civilians who bring themselves under the operation of the UPDF&nbsp;&nbsp;Act.</p> <p>On the question as to whether the pistol Ssali Mohamed was alleged to have been found in possession of was a weapon which was ordinarily the monopoly of the UPDF, learned counsel argued that that was a question to be decided at the trial and not in this court. On what constitutes a service offence, learned counsel argued that a service offence was defined by this court on page 6 of the judgment in <strong>Attorney General vs. Uganda Law Society </strong>(supra) which means in his view that a civilian can be tried by the General Court Martial for an offence outside the UPDF Act as long as that civilian is subject to military law.</p> </td> </tr> </tbody> </table> <div>&nbsp;</div> &nbsp; <table cellpadding="0" cellspacing="0"> <tbody> <tr> <td> <p>~ <strong>8</strong> ~</p> </td> </tr> </tbody> </table> <div>&nbsp;</div> </div> &nbsp; <div> <table cellpadding="0" cellspacing="0" style="height:890px; mso-element-frame-height:667.35pt; width:616px"> <tbody> <tr> <td> <p>Lastly learned counsel submitted that the purpose of a habeas corpus application, according to <strong>Grace Stuart Ibingira vs. Uganda </strong>[1966] E.A. 445, was to produce before court someone who was in unlawful detention, and in his view there was sufficient evidence to show that Ssali Mohamed was not in unlawful detention.</p> <p><strong><u>Consideration of the grounds of appeal</u></strong></p> <p>The appellant filed two grounds of appeal which are (1) that the learned Justices of Appeal erred in law when they found that the General Court Martial had jurisdiction to try civilians for offences outside the UPDF Act and (2) that the learned Justices of Appeal erred in law when they held that the General Court Martial had jurisdiction to try civilians for non service offences.</p> <p>I will consider both grounds together because I do not see much difference in substance between them. However, before considering the grounds of appeal, I will first consider the objection raised by learned counsel for the respondent that the grounds of appeal offend rule 82 of the Judicature (Supreme Court Rules) Directions because they do not reflect the points which are alleged to have been wrongly decided. Rule 82 aforesaid provides:</p> <p><strong><u>“A memorandum of appeal shall set forth concisely and under distinct heads without argument or narrative, the grounds of objection to the decision</u></strong></p> </td> </tr> </tbody> </table> <div>&nbsp;</div> </div> &nbsp; <div> <table cellpadding="0" cellspacing="0" style="height:910px; mso-element-frame-height:682.55pt; width:652px"> <tbody> <tr> <td> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <strong><u>appealed against, specifying the points which are</u></strong></p> <p><strong><u>alleged to have been wrongly decided, and the nature of the order which it is proposed to ask the court to make.”</u></strong></p> <p>&nbsp;</p> <p>According to the Record of Appeal (page 28) one issue was framed for determination by the Court of Appeal, and it was “Whether the General Court Martial has jurisdiction to try civilians for offences alleged to have been committed with the use of 15 ammunition ordinarily being the monopoly of UPDF.” In their judgment, after considering Section 119(1) (g) and (h) of the UPDF Act, the learned Justices of Appeal stated:</p> <p><u><strong>“The language of the statute clearly indicates that&nbsp;</strong>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <strong>Ssali Muhammed’s charges, including the</strong></u><strong> <u>possession </u></strong><u> <strong>of a firearm and ammunition that is</strong></u> <u><strong>ordinarily the </strong>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <strong>monopoly of the UPDF, fall within the jurisdiction of </strong> <strong>the GCM. Because of the clarity of the Act, the only </strong>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <strong>way then to prevent this exercise of jurisdiction is for </strong>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <strong>the statute to be found to be unconstitutional. The </strong>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <strong>only court</strong></u> <u><strong>considering this issue has been the </strong>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <strong>Constitutional Court in Uganda Law Society vs. </strong>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <strong>Attorney General... In this case, the court upheld the </strong>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <strong>constitutionality of this provision. When this case </strong></u>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <strong><u>was further appealed to the Supreme Court in</u></strong> &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <strong><u>Constitutional Appeal No.l of 2006, this issue was</u></strong></p> </td> </tr> </tbody> </table> <div>&nbsp;</div> &nbsp; <table cellpadding="0" cellspacing="0"> <tbody> <tr> <td> <p>— <strong>10</strong> —</p> </td> </tr> </tbody> </table> <div>&nbsp;</div> </div> &nbsp; <div> <table cellpadding="0" cellspacing="0" style="height:134px; mso-element-frame-height:100.35pt; width:654px"> <tbody> <tr> <td> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <strong><u>not addressed. Therefore, current law clearly puts</u></strong></p> <p><strong><u>Ssali Muhammed within the jurisdiction of the General Court Martial. The learned trial judge was correct in his findings."</u></strong></p> </td> </tr> </tbody> </table> <div>&nbsp;</div> &nbsp; <table cellpadding="0" cellspacing="0" style="height:733px; mso-element-frame-height:549.9pt; width:654px"> <tbody> <tr> <td> <p>&nbsp;From their judgment, it is clear that the learned Justices of Appeal confined themselves to Section 119(1) (g) and (h) of the UPDF Act in so far as that section brings civilians under the military court’s jurisdiction. They did not specifically state in their judgment, as learned counsel for the respondents rightly &nbsp;argued, that the General Court Martial had jurisdiction to try civilians for offences outside the UPDF Act or non-service offences. However, they held that the General Court Martial had jurisdiction to try Ssali Mohamed for possession of a firearm and ammunition ordinarily being the monopoly of UPDF. Since these&nbsp;&nbsp;offences do not appear in the UPDF Act, by implication the learned Justices of Appeal held that the General Court Martial had jurisdiction to try civilians for offences outside the UPDF Act or non-service offences. Therefore, in my view, the appellant’s grounds of appeal arise from the judgment of the Court of Appeal and do not offend rule 82 of the Rules of this court.</p> <p>Returning to the grounds of appeal, in his submissions learned counsel for the appellant admitted that military courts by virtue of Section 119(1) (g) and (h) of the UPDF Act have jurisdiction to &nbsp;try civilians in certain circumstances for security reasons. His contention, however, is that S. 119(1) (g) and (h) only grants</p> </td> </tr> </tbody> </table> <div>&nbsp;</div> &nbsp; <table cellpadding="0" cellspacing="0"> <tbody> <tr> <td> <p>~ <strong>11</strong> ~</p> </td> </tr> </tbody> </table> <div>&nbsp;</div> </div> &nbsp; <div> <table cellpadding="0" cellspacing="0" style="height:897px; mso-element-frame-height:672.5pt; width:615px"> <tbody> <tr> <td> <p>jurisdiction to the General Court Martial to try civilians for offences specifically provided for in the UPDF Act but that court does not have jurisdiction to try civilians for offences outside the UPDF Act or for civil offences. Surprisingly his authority for this assertion is the Constitutional case of <strong>Uganda Law Society vs. Attorney General </strong>(supra) in which, according to him, it was held that the General Court Martial’s jurisdiction over civil offences was limited to only military personnel.</p> <p>Learned counsel for the respondents submitted that learned counsel for the appellant’s understanding of the Constitutional Court’s decision in that case was mistaken, and I respectfully agree. The Constitutional Court did not hold in that case that the General Court Martial did not have jurisdiction to try civilians for civil offences, as counsel for the appellant submits. That court held that the trial of the 23 accused persons by the General Court Martial for the offences of terrorism and unlawful possession of firearms was unconstitutional because for the offence of terrorism the Anti-Terrorism Act under which they were charged vested exclusive jurisdiction in the High Court. For the offence of being in unlawful possession of firearms, that court held that it had to be shown that the accused persons being civilians, were subject to military law by, for example, showing in the charge sheet that the weapons they were alleged to have been found in possession of were ordinarily the monopoly of the Defence Forces. In the above-cited case Mukasa-Kikonyogo, D.CJ., stated in her judgment:</p> </td> </tr> </tbody> </table> <div>&nbsp;</div> </div> &nbsp; <div> <table cellpadding="0" cellspacing="0" style="height:460px; mso-element-frame-height:345.15pt; width:653px"> <tbody> <tr> <td> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <strong><u>“I concede that an accused person including</u></strong></p> <p><strong><u>civilians who are subject to military law under Section 2 of the UPDF Act may be tried by the Court Martial for being in unlawful possession of arms and ammunitions ordinarily the monopoly of </u></strong>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <strong><u>the Defence Forces. In such a case ... the charge</u></strong></p> <p><strong><u>sheet must disclose the acts which contravened the provisions of the UPDF Act or any other law ... In the instant case the aforementioned requirement was not complied with. The acts of the is&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; accused which contravened the law were not</u></strong></p> <p><strong><u>mentioned. Neither is it shown that the arms found in possession of the accused were the monopoly of the UPDF ...”</u></strong></p> </td> </tr> </tbody> </table> <div>&nbsp;</div> &nbsp; <table cellpadding="0" cellspacing="0" style="height:374px; mso-element-frame-height:280.4pt; width:653px"> <tbody> <tr> <td> <p>&nbsp;Section 119(1) of the UPDF Act provides as follows.</p> <p><strong><u>“119. Persons subject to military law</u></strong></p> <p><strong><u>(1) The following persons shall be subject to military law</u></strong></p> <p>(a)......................</p> <p><strong><u>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; (b)......................... </u></strong></p> <ol style="list-style-type:lower-alpha"> <li>)............................</li> </ol> <ol style="list-style-type:lower-alpha"> <li>)...................................</li> <li>)............................</li> <li>)............................</li> </ol> </td> </tr> </tbody> </table> <div>&nbsp;</div> &nbsp; <table cellpadding="0" cellspacing="0"> <tbody> <tr> <td> <p>~ <strong>13</strong> ~</p> </td> </tr> </tbody> </table> <div>&nbsp;</div> </div> &nbsp; <div> <table cellpadding="0" cellspacing="0" style="height:923px; mso-element-frame-height:692.6pt; width:653px"> <tbody> <tr> <td> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <strong><u>(g)Every person, not otherwise military, who aids and</u></strong></p> <p><strong><u>abets a person subject to military law in the commission of a service offence; and</u></strong></p> <p><strong><u>(h) Every person found in unlawful possession of -</u></strong></p> <p><strong><u>i. arms, ammunition or equipment ordinarily </u></strong>&nbsp; <strong><u>being the monopoly of the Defence Forces; or</u></strong></p> <p><strong><u>ii. other classified stores as prescribed.”</u></strong></p> <p>Therefore, according to this provision, civilians who find themselves in the circumstances described in the above Section will be subject to military law. Section 2 of the UPDF Act defines the expression “subject to military law” to mean being subject to Parts V to XIV of the UPDF Act. This consists of Sections 118 to 257 of the Act.</p> <p>&nbsp;Section 179(1) of the UPDF Act provides:</p> <p><strong><u>“(1) A person subject to military law, who does or omits to do an act -</u></strong></p> <p><strong><u>(a) In Uganda, which constitutes an offence under the Penal Code or any other enactment;</u></strong></p> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <strong><u>(b) Outside Uganda, which would constitute an</u></strong></p> <p><strong><u>offence under the Penal Code Act or any other enactment if it had taken place in Uganda,</u></strong></p> <p><u><strong>commits a service offence and is, on conviction, liable to </strong>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <strong>a punishment as prescribed in subsection </strong></u><strong>so&nbsp; (2).”</strong></p> </td> </tr> </tbody> </table> <div>&nbsp;</div> </div> &nbsp; <div> <table cellpadding="0" cellspacing="0" style="height:926px; mso-element-frame-height:694.45pt; width:653px"> <tbody> <tr> <td> <p>Section 197 of the Act establishes a General Court Martial and confers on it, among other things, unlimited original jurisdiction to try offences “under this Act”. Offences under this Act include service offences under Section 179 of the Act committed by persons subject to military law. These persons, in my view, will include civilians subject to military law under Section 119(l)(g) and (h) of the UPDF Act. Section 2 of the Act defines a <strong>“service offence” as “an offence under this Act or any other Act for the time being in force committed by a person while subject &nbsp;to military law”. </strong>Therefore, in my view, any civilian who is subject to military law can commit a service offence whether under the UPDF Act or any other Act.</p> <p>From the above cited provisions, it is clear to me that civilians in &nbsp;Uganda can become subject to military law and once they become subject to military law they will be tried by the General Court Martial. I am unable to see any exemption of civilians from the application of Section 179 of the Act once they become subject to military law under Section 119(l)(g) and (h) of the Act. Ordinarily civilians who are not involved in fighting wars should be tried by civilian courts, not military courts. Therefore, Section 119(l)(g) and (h) of the UPDF Act is rather unusual. However, the constitutionality of this Section was upheld by the Constitutional Court in <strong>Uganda Law Society vs. Attorney General </strong>(supra) and when its decision was appealed to this court the constitutionality of the section was not raised and argued by the cross- appellant (Uganda Law Society), and so this court did not address it.</p> <p>~ 15 ~</p> </td> </tr> </tbody> </table> <div>&nbsp;</div> </div> &nbsp; <div> <table cellpadding="0" cellspacing="0" style="height:916px; mso-element-frame-height:686.7pt; width:654px"> <tbody> <tr> <td> <p>&nbsp;Therefore, until Section 119(l)(g) and (h) of the UPDF Act is repealed or declared to be unconstitutional by a competent court, it will remain valid, effective and enforceable regardless of the misgivings of human rights advocates about it.</p> <p>&nbsp;Ssali Mohamed, the subject of the application for habeas corpus, was charged with being in unlawful possession of a firearm contrary to Section 3 (1) (2)(a) and (b) of the Firearms Act. The firearm of which he was alleged to have been in unlawful possession is described in the particulars of the offence as a &nbsp;Black Star Pistol S/No. P 99 <strong>“the said arm being ordinarily a monopoly of the Defence Forces”. </strong>He is alleged to have used this pistol to rob a motorcycle and was on that account charged with Aggravated Robbery contrary to Sections 285 and 286(2) of the Penal Code Act. Therefore, the alleged facts show that Ssali&nbsp;&nbsp;Mohamed is subject to military law by virtue of Section 119 (1) (h) of the Act.</p> <p>In <strong>Attorney General vs. Uganda Law Society </strong>(supra) Mulenga, JSC, correctly stated:</p> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <strong><u>“For an offence under an Act other than the UPDF</u></strong></p> <p><u><strong>Act to be within the jurisdiction of the General Court </strong>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <strong>Martial, it must have been committed by a person </strong>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <strong>subject to military law. In the instant case it was not </strong>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <strong>alleged, let alone shown, that the</strong></u><strong> <u>accused persons </u></strong><u>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <strong>committed either of the two</strong></u> <u><strong>offences while they were </strong>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <strong>subject to military law.</strong></u></p> </td> </tr> </tbody> </table> <div>&nbsp;</div> &nbsp; <table cellpadding="0" cellspacing="0"> <tbody> <tr> <td> <p>— <strong>16</strong> ~</p> </td> </tr> </tbody> </table> <div>&nbsp;</div> </div> &nbsp; <div> <table cellpadding="0" cellspacing="0"> <tbody> <tr> <td> <p>5</p> </td> </tr> </tbody> </table> <div>&nbsp;</div> &nbsp; <table cellpadding="0" cellspacing="0" style="height:102px; mso-element-frame-height:76.35pt; width:653px"> <tbody> <tr> <td> <p><strong><u>Without that link neither of the two offences can<br /> be called a service offence within the meaning of<br /> the said definition.”</u></strong></p> </td> </tr> </tbody> </table> <div>&nbsp;</div> &nbsp; <table cellpadding="0" cellspacing="0" style="height:746px; mso-element-frame-height:559.65pt; width:653px"> <tbody> <tr> <td> <p>&nbsp;The instant case is different from the above cited case because in this case the State established a link between the accused and Section 119(l)(g) and (h) of the UPDF Act by stating in the charge sheet that Ssali Mohamed was found in possession of a firearm being ordinarily the monopoly of the Defence Forces. The truth of this allegation is, of course, subject to proof in the trial court.</p> <p>Learned counsel for the appellant argued that Ssali Mohamed was charged with being in unlawful possession of a pistol and that a pistol is not ordinarily the monopoly of the Defence Forces and that, therefore, this could not bring him under Section 119 (1) (h) of the UPDF Act. However, the charge sheet states that the pistol was a Black Star Pistol S/No. P 99 <strong>being ordinarily the monopoly of the Defence Forces. </strong>It is my view that without evidence this court cannot determine whether a Black Star Pistol S/No. P 99 is an arm ordinarily the monopoly of the Defence Forces or not. It is a triable issue which should be resolved by the trial court.</p> <p>The appellant’s grounds of appeal must therefore, fail. I find that the learned Justices of Appeal were correct to find that Ssali Mohamed was subject to the jurisdiction of the General Court</p> </td> </tr> </tbody> </table> <div>&nbsp;</div> &nbsp; <table cellpadding="0" cellspacing="0"> <tbody> <tr> <td> <p>~ <strong>17</strong> ~</p> </td> </tr> </tbody> </table> <div>&nbsp;</div> </div> &nbsp; <div> <table cellpadding="0" cellspacing="0" style="height:188px; mso-element-frame-height:140.75pt; width:630px"> <tbody> <tr> <td> <p>Martial and to uphold the decision of the High Court which found that he was being lawfully held in prison and refused to grant the appellant the application for habeas corpus. I would, therefore, dismiss this appeal. However, as this appeal concerns a matter of public interest, I would make no order as to costs in this court and in the two courts below.</p> </td> </tr> </tbody> </table> <div>&nbsp;</div> &nbsp; <table cellpadding="0" cellspacing="0"> <tbody> <tr> <td> <p>Dated at Kampala this........... .19th...day of........ June............... 2013</p> </td> </tr> </tbody> </table> <div>&nbsp;</div> &nbsp; <table cellpadding="0" cellspacing="0"> <tbody> <tr> <td> <p>&nbsp;</p> </td> </tr> </tbody> </table> <div>&nbsp;</div> &nbsp; <table cellpadding="0" cellspacing="0" style="height:60px; mso-element-frame-height:45.35pt; width:353px"> <tbody> <tr> <td> <p><strong>JOTHAM TUMWESIGYE JUSTICE OF THE SUPREME COURT</strong></p> </td> </tr> </tbody> </table> <div>&nbsp;</div> </div> &nbsp; <div> <table cellpadding="0" cellspacing="0" style="height:55px; mso-element-frame-height:41.5pt; width:654px"> <tbody> <tr> <td> <p>IN THE SUPREME COURT OF UGANDA AT KAMPALA</p> </td> </tr> </tbody> </table> <div>&nbsp;</div> &nbsp; <table cellpadding="0" cellspacing="0" style="height:140px; mso-element-frame-height:105.0pt; width:654px"> <tbody> <tr> <td> <p>(CORAM: ODOKI CJ, KATUREEBE, KITUMBA<strong>,. </strong>TUMWESIGYE AND</p> <p>E. KISAAKYE, JJ.S.C.)</p> <p><strong>CIVIL APPEAL NO. 04 OF 2012 BETWEEN</strong></p> </td> </tr> </tbody> </table> <div>&nbsp;</div> &nbsp; <table cellpadding="0" cellspacing="0" style="height:138px; mso-element-frame-height:103.65pt; width:654px"> <tbody> <tr> <td> <p><strong>NAMUGERWA HADIJAH:::::::::::::::::::::::::::::::::::::::::: APPELLANT</strong></p> <p><strong>AND</strong></p> <p><strong>D.P.P AND ATTORNEY GENERAL::::::::::::::::::::RESPONDENTS</strong></p> </td> </tr> </tbody> </table> <div>&nbsp;</div> &nbsp; <table cellpadding="0" cellspacing="0" style="height:133px; mso-element-frame-height:99.5pt; width:654px"> <tbody> <tr> <td> <p>[Appeal from the decision of the Court of Appeal at Kampala (Mpagi- Bahigeine ,DCJ, Nshimye and Arach-Amoko JJ.A) dated 14<sup>th</sup> June 2012</p> <p>in Civil Appeal No. 10 of 2012]</p> <p><strong>JUDGMENT OF KITUMBA, TSJ.</strong></p> </td> </tr> </tbody> </table> <div>&nbsp;</div> &nbsp; <table cellpadding="0" cellspacing="0" style="height:72px; mso-element-frame-height:.75in; width:654px"> <tbody> <tr> <td> <p>I have had the advantage of reading in draft the lead judgment of my brother Tumwesigye JSC. I concur with it and the orders proposed therein.</p> </td> </tr> </tbody> </table> <div>&nbsp;</div> &nbsp; <table cellpadding="0" cellspacing="0"> <tbody> <tr> <td> <p>Dated at Kampala, this------ 19<sup>th</sup> --- day of June---------------------- 2013</p> </td> </tr> </tbody> </table> <div>&nbsp;</div> &nbsp; <table cellpadding="0" cellspacing="0" style="height:92px; mso-element-frame-height:69.0pt; width:654px"> <tbody> <tr> <td> <p>&nbsp;</p> <p>C.<strong>N.B. KITUMBA </strong>JUSTICE OF THE SUPREME COURT</p> </td> </tr> </tbody> </table> <div>&nbsp;</div> </div> &nbsp; <div> <table cellpadding="0" cellspacing="0"> <tbody> <tr> <td> <p>THE REPUBLIC OF UGANDA</p> </td> </tr> </tbody> </table> <div>&nbsp;</div> &nbsp; <table cellpadding="0" cellspacing="0" style="height:204px; mso-element-frame-height:153.05pt; width:678px"> <tbody> <tr> <td> <p>IN THE SUPREME COURT OF UGANDA AT KAMPALA</p> <p>(CORAM: ODOKI, C.J., KATUREEBE, KITUMBA, TUMWESIGYE &amp;</p> <p>KISAAKYE, JJ.S.C.)</p> <p>CIVIL APPEAL NO. 04 OF 2012</p> <p>BETWEEN</p> </td> </tr> </tbody> </table> <div>&nbsp;</div> &nbsp; <table cellpadding="0" cellspacing="0" style="height:585px; mso-element-frame-height:438.85pt; width:678px"> <tbody> <tr> <td> <p>NAMUGERWA HADIJAH :::::::::::::::::: APPELLANT AND D.P.P. AND ATTORNEY GENERAL ::::::::::: RESPONDENT</p> <p>{Appeal from the Judgment of the Court of Appeal at Kampala (Mpagi- Bahigeine,D.C.J., Nshimye and Amoko, JJ.A.) dated 14<sup>th</sup> June 2012, in Civil Appeal No. 10 of 2012}</p> <p>JUDGMENT OF DR. KISAAKYE, JSC.</p> <p>I have had the benefit of reading in draft the judgment of my learned brother, Justice Tumwesigye, JSC.</p> <p>I concur with him that this appeal should be dismissed with no order as to costs in this court and in the two courts below.</p> <p>Dated at Kampala this 19<sup>th</sup> day of.... June..................................... 2013.</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>DR. ESTHER KISAAKYE</p> <p>JUSTICE OF THE SUPREME COURT</p> </td> </tr> </tbody> </table> <div>&nbsp;</div> </div> &nbsp; <div> <table cellpadding="0" cellspacing="0" style="height:24px; mso-element-frame-height:18.25pt; width:595px"> <tbody> <tr> <td> <p>THE REPUBLIC OF UGANDA</p> </td> </tr> </tbody> </table> <div>&nbsp;</div> &nbsp; <table cellpadding="0" cellspacing="0" style="height:155px; mso-element-frame-height:116.55pt; width:621px"> <tbody> <tr> <td> <p><strong><u>IN THE SUPREME COURT OF UGANDA, AT KAMPALA</u></strong></p> <p>(CORAM: ODOKI, CJ., KATUREEBE, KITUMBA, TUMWESIGYE AND KISAAKYE,</p> <p>JJ.SC).</p> <p><strong>CIVIL APPEAL NO. 04 OF 2012</strong></p> <p>BETWEEN</p> </td> </tr> </tbody> </table> <div>&nbsp;</div> &nbsp; <table cellpadding="0" cellspacing="0" style="height:119px; mso-element-frame-height:89.0pt; width:621px"> <tbody> <tr> <td> <p><strong>NAMUGERWA HADIJAH :::::::::::::::::::::::::::::::: APPELLANT AND D.P.P. AND ATTORNEY GENERAL :::::::::::::::::: RESPONDENTS</strong></p> </td> </tr> </tbody> </table> <div>&nbsp;</div> &nbsp; <table cellpadding="0" cellspacing="0" style="height:41px; mso-element-frame-height:30.5pt; width:621px"> <tbody> <tr> <td> <p>[Appeal from the judgment of the Court of Appeal at Kampala: (Mpagi-Bahigeine, D.C.J., Nshimye and Arach-Amoko, JJ.A) dated the 14<sup>th</sup> June 2012, in Civil Appeal No. 10 of 2012].</p> </td> </tr> </tbody> </table> <div>&nbsp;</div> &nbsp; <table cellpadding="0" cellspacing="0" style="height:230px; mso-element-frame-height:172.4pt; width:621px"> <tbody> <tr> <td> <p><strong>JUDGMENT OF KATUREEBE, JSC.</strong></p> <p>I agree with the Judgment of my learned brother, Tumwesigye, JSC, that this appeal be dismissed.</p> <p>I also agree with the orders he proposed as to costs.</p> <p><strong>Dated </strong>at Kampala this............... 19th...... day of ..June...2013.</p> </td> </tr> </tbody> </table> <div>&nbsp;</div> &nbsp; <table cellpadding="0" cellspacing="0"> <tbody> <tr> <td> <p>&nbsp;</p> </td> </tr> </tbody> </table> <div>&nbsp;</div> &nbsp; <table cellpadding="0" cellspacing="0" style="height:46px; mso-element-frame-height:34.75pt; width:357px"> <tbody> <tr> <td> <p>Bart M. Katureebe <strong><u>JUSTICE OF THE SUPREME COURT</u></strong></p> </td> </tr> </tbody> </table> <div>&nbsp;</div> </div> &nbsp; <table cellpadding="0" cellspacing="0"> <tbody> <tr> <td> <p>THE REPUBLIC OF UGANDA</p> </td> </tr> </tbody> </table> <div>&nbsp;</div> &nbsp; <table cellpadding="0" cellspacing="0" style="height:45px; mso-element-frame-height:34.05pt; width:550px"> <tbody> <tr> <td> <p>IN THE SUPREME COURT OF UGANDA AT KAMPALA</p> </td> </tr> </tbody> </table> <div>&nbsp;</div> &nbsp; <table cellpadding="0" cellspacing="0" style="height:45px; mso-element-frame-height:33.8pt; width:550px"> <tbody> <tr> <td> <p>(CORAM: ODOKI C.J; KATUREEBE, KITUMBA, TUMWESIGYE AND KISAAKYE, JJ.SC)</p> </td> </tr> </tbody> </table> <div>&nbsp;</div> &nbsp; <table cellpadding="0" cellspacing="0" style="height:268px; mso-element-frame-height:200.75pt; width:655px"> <tbody> <tr> <td> <p>[Appeal from the judgment of the Court of Appeal at Kampala (Mpagi-Bahigeine DCJ, Nshimye</p> <p>&amp;&nbsp; Arach Amoko JJ. A) dated 14 June 2012 in Civil Appeal No.10 of 2012]</p> <p>JUDGMENT OF ODOKI, CJ</p> <p>I have had the benefit of reading in draft the judgment prepared by my learned brother Tumwesigye, JSC, and I agree with the judgment and the orders he has proposed.</p> <p>As the other members of the Court also agree, this appeal is dismissed with no orders as to costs in this Court and Courts below.</p> </td> </tr> </tbody> </table> <div>&nbsp;</div> <p>Dated this 19th day of June 2013</p> <p>B. ODOKI</p> <p>CHIEF JUSTICE</p> <p><br /> &nbsp;</p> <table cellpadding="0" cellspacing="0" style="height:21px; mso-element-frame-height:15.6pt; width:550px"> <tbody> <tr> <td> <p>&nbsp;</p> </td> </tr> </tbody> </table> <div>&nbsp;</div> <table cellpadding="0" cellspacing="0" style="height:21px; mso-element-frame-height:15.45pt; width:550px"> <tbody> <tr> <td> <p>&nbsp;</p> </td> </tr> </tbody> </table> <div>&nbsp;</div> &nbsp; <table cellpadding="0" cellspacing="0"> <tbody> <tr> <td> <p>&nbsp;</p> </td> </tr> </tbody> </table> <div>&nbsp;</div> <table cellpadding="0" cellspacing="0"> <tbody> <tr> <td> <p>&nbsp;</p> </td> </tr> </tbody> </table> <div>&nbsp;</div> &nbsp; <table cellpadding="0" cellspacing="0"> <tbody> <tr> <td> <p>&nbsp;</p> </td> </tr> </tbody> </table> <div>&nbsp;</div> &nbsp; <table cellpadding="0" cellspacing="0"> <tbody> <tr> <td> <p>&nbsp;</p> </td> </tr> </tbody> </table> <div>&nbsp;</div> &nbsp; <table cellpadding="0" cellspacing="0"> <tbody> <tr> <td> <p>&nbsp;</p> </td> </tr> </tbody> </table> <div>&nbsp;</div> &nbsp; <table cellpadding="0" cellspacing="0"> <tbody> <tr> <td> <p>&nbsp;</p> </td> </tr> </tbody> </table> <div>&nbsp;</div> &nbsp; <table cellpadding="0" cellspacing="0"> <tbody> <tr> <td> <p>&nbsp;</p> </td> </tr> </tbody> </table> <div>&nbsp;</div> &nbsp; <p>&nbsp;</p> </div> <p>&nbsp;</p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-2f7bc0ae5191486525a9ff0f9bbfa19c"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/supreme-court/2013/20/supreme-court-2013-20.docx" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Mon, 27 Jul 2015 13:34:58 +0000 Anonymous 15618 at https://old.ulii.org