Busulwa Blasio v Uganda [2017] UGSC 28 (19 April 2017)

# Busulwa Blasio v Uganda [2017] UGSC 28 (19 April 2017) [ Share this document on WhatsApp opens in new tab __](https://api.whatsapp.com/send?text=Busulwa+Blasio+v+Uganda+%5B2017%5D+UGSC+28+%2819+April+2017%29+-+https%3A%2F%2Fulii.org%2Fen%2Fakn%2Fug%2Fjudgment%2Fugsc%2F2017%2F28%2Feng%402017-04-19) [ Share this document on X opens in new tab __](https://twitter.com/intent/tweet?text=Busulwa+Blasio+v+Uganda+%5B2017%5D+UGSC+28+%2819+April+2017%29+-+https%3A%2F%2Fulii.org%2Fen%2Fakn%2Fug%2Fjudgment%2Fugsc%2F2017%2F28%2Feng%402017-04-19) [ Share this document on Facebook opens in new tab __](https://www.facebook.com/sharer/sharer.php?u=https://ulii.org/en/akn/ug/judgment/ugsc/2017/28/eng@2017-04-19) [ Share this document on LinkedIn opens in new tab __](https://www.linkedin.com/sharing/share-offsite/?url=https://ulii.org/en/akn/ug/judgment/ugsc/2017/28/eng@2017-04-19) [ Share this document by email __](mailto:?subject=Take%20a%20look%20at%20this%20document%20from%20ULII:%20Busulwa%20Blasio%20v%20Uganda%20\[2017\]%20UGSC%2028%20%E2%80%A6&body=https://ulii.org/en/akn/ug/judgment/ugsc/2017/28/eng@2017-04-19) [ Download RTF (469.6 KB) ](/en/akn/ug/judgment/ugsc/2017/28/eng@2017-04-19/source) Toggle dropdown * [Download PDF](/en/akn/ug/judgment/ugsc/2017/28/eng@2017-04-19/source.pdf) Report a problem ##### Is there something wrong with this document? Problem category *Incorrect informationMissing informationNo PDF downloadDocument is emptyDocument is not accessible on my deviceOther What's the problem? * Your email address * CancelReport problem __ * Share * [ Download RTF (469.6 KB) ](/en/akn/ug/judgment/ugsc/2017/28/eng@2017-04-19/source) * [Download PDF](/en/akn/ug/judgment/ugsc/2017/28/eng@2017-04-19/source.pdf) * * * * * Report a problem __ ##### Busulwa Blasio v Uganda [2017] UGSC 28 (19 April 2017) Copy citation * __Document detail * __Related documents * __Citations 2 / - Citation Busulwa Blasio v Uganda [2017] UGSC 28 (19 April 2017) Copy Media Neutral Citation [2017] UGSC 28 Copy Court [Supreme Court of Uganda](/en/judgments/UGSC/) Judgment date 19 April 2017 Language English Summary ###### Flynote * Criminal law Read full summary ###### Case summary From the evidence that was on record, it was found that the intended appeal was a third appeal to the Supreme Court. The applicant however did not obtain a certificate from the Court of Appeal to show that the matter was of great importance, neither had he sought for leave of the Supreme Court to bring the appeal. Therefore, the appeal was incompetent for failure to satisfy the conditions for the grant of an application for bail pending appeal.   Accordingly, the court found no reason to interfere with the decision of the single Justice. The reference was thereby dismissed. __ ##### Ask AI Ask questions and understand this document faster using AI. __Ask AI * * * Skip to document content ·' 5 THE REPLIC OF UGANDA , INTHE SUPREME COURT OF UGANDA AT KAMPALA . ' / CORAM: (ARACH-AMOKO; MWONDHA;TIBATEMW A- EKIRIKUBINZA; JSC) 10 CRIMINAL REFERENCE NO.Ol OF 2016 (Arising out of Criminal Application No.06 of 2015) (Arising out of Criminal Appeal No.7 5 of 2015) BUSUL W **A****BI.ASIO****·** APPLICAN'T VS UGANDA RESPONDENT (Reference from the. ruling of Opio-Aweri, JSC (single Justice) dated 19th February, 2016 in Criminal Application No.06 of 2015) 20 _RULING OF ARACH-AMOKO,___JSC__ This is an application by way of a reference from the decision of a single Justice of this Court (Opio-Aweri JSC) delivered on the 9'It February, 2016 dismissing Criminal Application No.06 of 2015 for bail pending appeal. 25 The reference seeks for orders from a panel of three Justices varying or reversing the said decision. It was brought by notice of motion under section 8(2) of the Judicature Act, Rules 41 (2) and 52(b) of the (Supreme Court Rules) Directions. 1 _Background_ The applicant was tried by a Magistrate Grade 1 at Buganda Road Chief Magistrates Court, for the offences of intermeddling with the estate of a deceased person contrary to section 11 (1) of the Administrator General's Act and fraud contrary to section 190(1) of the Registration of Titles Act, respectively. He was acquitted on the 10th June, 2010. The DPP was dissatisfied with that decision and appealed to the High Court. The High Court overturned the decision of the Grade 1 Magistrate and convicted the applicant and sentenced him to 30 months imprisonment on 30/01/12. 15 Aggrieved by the decision of the High Court, the applicant appealed to the Court of Appeal against the conviction and sentence. The Court of Appeal upheld the decision of the High Court. The applicant was dissatisfied with the decision of the Court of Appeal and has filed Criminal Appeal No. 75 of 2015 in the Supreme Court 20 against it. At the same time, he filed Criminal Application No. 06 of 2015 in the Supreme Court, for bail pending appeal. Opio Aweri JSC who heard the application dismissed it for failure to satisfy the requirement for the grant of the order of bail pending appeal on the 19/02/106. Hence this reference. 25 The _Grounds of the reference:_ The reference is supported by the affidavit of the applicant setting out the details of his complaint; however, the grounds of the reference are briefly that: _1\. The learned justice of the Supreme Court erred In_ _l_ _aw and fact when_ _he he_ _l_ _d that_ _Criminal Appeal_ _No._ 75 _of_ _2015_ _wa_ _s_ _a third appeal which_ _wo_ _ul_ _d on s_ _u_ _ch account be Incompetent In this honourable Court_ _._ 2 2\. _The learned Justice of the Supreme Court erred in_ _l_ _aw and fact whe_ _n_ _he held that on account of Criminal_ _Appeal No._ 75 _of 2015_ _be_ _i_ _ng_ _in_ _competent, the app_ _l_ _icant cannot be granted_ _bai_ _l_ _pending appeal._ _3\. The learned Justice of the Supreme Court erred in law and fact when_ _he held that_ _Criminal Appeal No._ 75 _of 2015_ _was incompetent without_ _10_ _a_ _ll_ _owing counsel for the applicant to address him on that issue t_ _h_ _e_ _r_ _e_ _b_ _y_ _denying the applicant a fair hearing leading to a miscarriage of justice._ _4_ _. T_ _he_ _l_ _earned_ _J_ _ustice of the Supreme Court erred in_ _l_ _aw and fact whe_ _n_ _he he_ _l_ _d that an appeal without a certificate of importance from the Cou_ _r_ _t_ _of Appeal or without leave of the Supreme Court would be incompetent_ _on that account._ _5_ _.__The learned Justice of the Supreme Court erred in_ _l_ _aw and fact when_ _he he_ _l_ _d that_ _Criminal Appeal No_ _._ 75 _of 2015_ _was incompetent yet such a_ _decision can only be taken by a full panel of the Supreme Court_ _consisting of five justices and su_ _c_ _h a decision can only be taken when the_ _20_ _appea_ _l_ _comes up for hearing:_ _6:__I_ _t is in the interest of justice that the decision of the single_ _J_ _ustice be_ _reversed and the applicant be granted_ _but_ _pending the hearing of his_ _appea_ _l_ _._ _Submissions_ 25 Mr. Andrew Sebugwawo, learned Counsel for the applicant argued all the grounds together as follows: He submitted that the main complaint in the reference is the holding by the learned Justice that _Criminal Appeal No._ 75 _of 2015_ is a third appeal. He contended that the said appeal is not a third appeal. This is 30 because Section [204](/akn/ug/act/1998/10/~part_XVIII__sec_204)(1) of [the Magistrates Courts Act](/akn/ug/act/1998/10) provides that subject to any written law, and except as provided in that section, an appeal shall 3 5 lie to the High Court by a person convicted by a court presided over by a Chief Magistrate or a Magistrate Grade 1. The applicant was acquitted by a Magistrate Grade 1. Therefore, he could not appeal against his acquittal. The appeal against the applicant's acquittal was lodged in the High Court by the DPP, not the applicant. 10 The applicant was thereafter convicted by the High Court. Section 132 of the Trial On Indictments Act provides that an accused person may appeal to the Court of Appeal from a conviction and sentence of the High Court. The first time the applicant carried a conviction and sentence was in the High Court. According to counsel, that is where the applicant's right of appeal against the conviction and sentence commenced. Therefore, his appeal to the Court of Appeal was a first appeal and his appeal to this Court is a second appeal. The appeal is therefore not incompetent as the learned Justice held. Secondly, counsel submitted that the learned Justice arrived at the finding 20 that the applicant's appeal was a third appeal and therefore incompetent without according the applicant a hearing. That is why it constituted a miscarriage of justice. Counsel distinguished the case of **Char****l****es** Twagira that the learned Justice relied on in his ruling on the ground that the facts constituting that case were different from the instant case in that, in the 25 Twagira case, he was the appellant right from the Chief Magistrates Court to the High Court, the Court of Appeal and the Supreme Court. Counsel contended that in counting the number of appeals, the Court should consider the party who has appealed as opposed to the number of times the case has been handled by a court of law. 30 Thirdly, Counsel submitted that even if the applicant's appeal were a third appeal as ruled by the learned Justice, an appeal cannot be rendered incompetent on account of being lodged in the Supreme Court without a certificate of importance since Rule 57(3) of the Supreme Court Rules 4 clearly states that it is not a requirement before lodging a notice of appeal. See: Gashumba Maniraguha vs. Sam Nkundiye, Civil Application No.24 of 2015. Lastly, counsel contended that the issue whether or not an appeal is competent cannot be decided by a single Justice of the Supreme Court. It must be decided by the entire court. The learned Justice therefore had no jurisdiction to take that decision. He prayed that Court allows the reference and grants the applicant bail pending the determination of his appeal. Senior Principal State Attorney Anna Kabajungu who represented the Respondent adopted the same order in her submissions but opposed the reference very strongly. She agreed with the applicant's counsel that, the main issue is whether the appeal filed by the applicant in this Court is a third appeal or not. She supported the holding by the single Justice that this is a third appeal 20 according to the provisions of section 5(5) of the Judicature Act. Her contention on the other hand, is that it is the number of times the matter has been handled by the Courts that counts, regardless of whichever party has appealed, up to the final Court. Therefore, the applicant needed a certificate of importance before instituting his appeal in this Court. The learned Justice did not therefore err in holding that this was a third appeal and it was thus incompetent in view of the fact that there was no certificate of importance from the Court of Appeal or leave from the Supreme Court before the appeal was lodged. In reply to the argument in respect of jurisdiction, the learned State Attorney contended that Section 8 of the Judicature Act gives powers to a single Justice to handle any interlocutory matter or cause before the Court. The authority of Gashumba Maniraguha vs. Sam Nkundiye relied 5 5 on by counsel for the applicant does not say that a single Justice can decided the competence of an appeal that had been lodged before the Court nor does it say that an appeal should be decided by a full Court. Section 8(1) of the Judicature Act reads: (1) _A single_ _justice_ _of t_ _h_ _e_ _Supreme Court may exercise any power vested in t_ _h_ _e Supreme Co_ _u_ _rt in_ _any interlocutory cause or matter before the_ _S_ _upreme Court.__JJ_ Regarding fair hearing, the learned counsel for the respondent conceded that the learned Justice did not give the applicant any opportunity to respond to the issue of the competence of the appeal before taking the impugned decision, but contended that the applicant was represented in court by counsel; the matter concerned an application for bail pending appeal which was dependent on a high chance of success of the appeal. That in deciding that issue, the judge had to look at the appeal that was lodged, not the merit of the appeal. It was therefore not necessary to give the applicant a hearing. On that basis, she denied that the decision of the 20 learned Justice resulted into a miscarriage of justice as alleged by counsel for the applicant. Counsel prayed that the reference should be disallowed and the decision of the single Justice be upheld. **Consideration of the reference****by****the Court** I have carefully considered the grounds of the reference, the submissions of counsel as well as the authorities cited and the law. I have taken cognizance of the fact that the reference arose from a decision of a single Justice of this Court in the course of determining an application for bail pending appeal. It is gainsaid that there are settled 30 principles for the grant of such applications and that it is within the discretionary powers of the judge. Further, the principles for interference with the exercise of discretion by a judge are settled as well. Whenever a 6 5 decision is based on the exercise of discretion of a judge, such decision will not be reversed merely because the appeal judges would have exercised the discretion differently if they had been presiding in the court below. If on the other hand , the appellate court finds that the trial judge has failed to exercise any discretion at all or has exercised it in a way that 10 no reasonable judge would have exercised; or erred in principle or in law; or took into account irrelevant factors; or has omitted factors which are material to the decision. See: Mbogo v Shah [1968] 1 EA 93. Section 8(2) of the Judicature Act which governs references provides that: "(2)Any person dissatisfied with the decision of a single justice in the exercise of a power under subsection (1) is entitled to have the matter determined by a bench of three justices of the Supreme Court which may confirm, vary or reverse the decision." A reference is thus in essence an appeal from the decision of a single Justice to a panel of three Justices, so the above principles are applicable to the instant case. From the grounds set out above and the submissions of both counsel, the main complaint in the reference is the finding of the learned single Justice that the applicant's appeal was a third appeal, therefore it was incompetent because it had been instituted in the Supreme Court without a certificate of importance as required by section 5(5) of the Judicature Act. The record shows that after setting out the background of the application and the submissions by both Counsel, the law and the principles, the learned Justice considered the guideline set out by Oder JSC (RIP) in the 30 case of Arvind Patel vs. Uganda, SCCA No.1 of 2003 for the grant of bail pending appeal in this Court and he stated thus: 7 _5_ _"In my View the most important consideration for bai_ _l_ _pending appea_ _l_ _in_ _the Supreme Court should be the possibility or probabil_ _i_ _ty of success of_ _the appea_ _l_ _and that should be supplemented by the other cond_ _i_ _tions_ _stated in the guideline in Arvind_ _P_ _atel (supra).”_ The learned Justice then proceeded to consider the probability of success 10 of the applicant's appeal and his findings are contained in the relevant part of the ruling complained of as follows: (( ... _An appeal which has gone through two appel_ _l_ _ate systems like the_ _instant case cannot be said to have a high probability of success._ _I_ _also note that the applicant’s appeal to the Supreme Court appears to be_ _15_ _a third appeal and would be Incompetent In View of section_ 5(5) _of the_ _judicature Act ..._ _A third appeal like the instant one would be Instituted by_ _l_ _eave of co_ _u_ _rt_ _through a certificate_ _of_ _importance._ _I have not seen a certificate of the Court of Appeal that the matter raises a_ _20_ _question of great public or general Importance. Without such certificate,_ _the_ _Appeal No._ 75 _of 2015_ _would be incompetent:__See: Twagira. v_ _Uganda,__Supreme Court C_ _r_ _iminal Appeal No._ 27 _of 2003.__An_ _Incompetent appea_ _l_ _has no probability of success for the purposes of a_ _bail application._ _25_ _For the foregoing_ _reasons,__I find that the applicant has not satisfied the_ _conditions for this court to exercise discretion to release the applicant on_ _bail pending appeal. The application is_ _accordingly'__dismissed._ JJ It is clear from the foregoing that the learned Justice gave two main reasons why the applicant's appeal did not, in his view, have a high 30 probability of success, and therefore, did not satisfy the conditions for the grant of the order sought by the applicant. 8 \- . 5 The first reason was that the case had gone through two appellate systems, namely the High Court and the Court of Appeal, with the same result. This finding is not a subject of complaint in this reference. The second finding which has given rise to the complaint in this reference is that the appeal is a third appeal; it was instituted without a certificate of 10 importance from the Court of Appeal and on that account it would be incompetent in view of S.5(5) of the Judicature Act. The main issue for determination is therefore, first of all, whether _Criminal Appeal No_ _._ 75 _of 2015_ is a 3rd appeal or not. The definition of a “third appeal" is not given by the Judicature Act or the Rules of this Court. The answer lies in the interpretation of section 5 of the Judicature Act which governs appeals to the Supreme Court in criminal matters. Section 5(5) reads as follows: "(5) Where _an appeal emanates from a judgment of the Chief Magistrate_ _or a Magistrate Grade 1 in the exercise of his or her original jurisdiction,_ 20 _and either the accused person or the Director of Public Prosecutions has_ _appealed to the_ _High_ _Court and the Court of Appeal, the accused or the_ _Director of Public Prosecutions may lodge a third appeal to the Supreme_ _Court, with the Certificate of the Court of Appeal that the matter raises a_ _question of great public or general importance , or if the Supreme Court,_ _in its overall duty to see that justice is done, considers that the appeal_ _should be heard,_ except that in such a third appeal by the Director of Public Prosecutions, the Supreme Court shall only give a declaratory judgment" (Underlining is for ernphasis.) The key words in my view are "_Where an appeal emanates from a_ 30 _judgment of the Chief Magistrate or a Magistrate Grade 1 in the exercise_ _of his or her original jurisdiction, and e_ _i_ _ther the accused person or the_ _Director of Public Prosecutions has appealed to the High Court and the_ 9 5 _Court of Appeal, the accused or the Director of Public Prosecutions may_ _l_ _odge a third appeal to the Supreme Court .. "_ It is clear from the above provision that a third appeal is an appeal which emanates or originates from the decision of a Chief Magistrate or a Magistrate Grade 1 in the exercise of his or her original jurisdiction, to the 10 High Court, the Court of Appeal and eventually to the Supreme Court. The appeal to the High Court and Court of Appeal may be lodged by either the accused or the D PP. It should be noted that section 5(5) of the Judicature Act is similar to section 73 of the Civil Procedure Act which requires the High Court to issue certificates in cases of appeals emanating from judgments of Grade 11 Magistrates to the Court of Appeal. Black's Law Dictionary defines an "appeal" as: "_A_ __proceeding__ _undertaken to have a decision reconsidered by a higher_ _authority; esp_ _.__the submis_ _s_ _ion of a lower court's or agency_ _’_ _s decision to a_ _20_ _higher court for review and possible reversal_ _._ JJ It is thus the number of times the proceedings are placed before a higher court for review that count. At every stage, the case has to be reviewed by court, regardless of the appellant. The first appellate court actually has the duty to subject the evidence to fresh scrutiny and reach its own 25 conclusions [see: [Kifamunte Henry V Uganda, SCCA No.10 of 1997](/akn/ug/judgment/ugsc/1998/20)]. In the instant case, the proceedings which originated from the Magistrate Grade 1 Court were first placed before the High Court and then secondly, before the Court of Appeal. That makes _Supreme Court Criminal Appeal_ _No._ 75 _of 2015_ a third appeal. As such, the applicant required a certificate 30 of importance from the Court of Appeal that the matter raises a question of law of great public importance or leave from the Supreme Court, otherwise it would be incompetent, and as the learned Justice pointed out 10 _.__:_ 5 rightly, in my view, such an appeal stood no chance of success in this Court. Examples of third appeals include the case of Namuddu and Professor Ssenyonga, Criminal Appeal No.6 of 1999 (SC) reported in [2004] 2 EA 207, where the applicants were jointly charged and convicted of the 10 offence of causing financial loss and abuse of office and were sentenced to terms of imprisonment by the Buganda Road Chief Magistrates Court. Their appeal against the convictions and sentences to the High Court was successful and they were acquitted and discharged. The Director of Public Prosecutions successfully appealed to the Court of Appeal against the decision of the High Court and the Court of Appeal reversed the decision of the High Court and affirmed the convictions and sentences of the Chief Magistrate's Court. The appellants were dissatisfied with the decision of the Court of Appeal and lodged their appeal Criminal Appeal No.6 of 1999 (SC) in the Supreme Court without obtaining the requisite 20 certificate from the Court of Appeal. When the appeal was called for hearing before the Supreme Court, learned Counsel for the appellant informed Court that he had not applied to the Court of Appeal for the said certificate through inadvertence, but that upon realizing his mistake, he had filed the application in the Court 25 of Appeal. Consequently, counsel applied for adjournment to pursue the said application before the Court of Appeal. Counsel for the respondent opposed the application and instead prayed that the appeal ought to be struck out as incompetent or dismiss it for want of prosecution. This is what the Supreme Court said: 30 " _We are persuaded that an appeal does exist because in criminal appea_ _l_ _s,_ _an appea_ _l_ _is commenced by a Notice of Appeal -see_ _S._ 326(1) _of_ _the Criminal Procedure Code_ _and_ _rule_ 56 _of the Rules of this Court I_ _t is_ __c__ __l__ __ear, however, that the Appellants failed to tai(e in time an essentia__ __l__ __ste__ __p__ 11 _5_ __of applying for a certificate from the Court of Ap__ __p__ __ea__ __l__ __that the a__ __pp__ __ea__ __l__ __raises a question or questions of law of great pub__ __l__ __ic Importance__ __. In__ __the__ __absence of that certificate a third appea__ __l__ __cannot be enter__ _t_ __ained__ __b__ __y t__ __h__ __is__ __Court__ _.__I_ _ndeed in the absence of that certificate) the_ _R_ _egistrar is prec_ _lud_ _e_ _d_ _f_ _rom comp_ _i_ _l_ _i_ _ng_ _the record of appea_ _l_ _"._(Underlining was added for 10 emphasis) The Court went on to rule as follows: _"__H_ _owever, two provisions of the rules are_ _significan_ _t_ _;__first_ _rule_ 39(1) _of the_ _R_ _u_ _l_ _es of this Court permits the appellant to fi_ _l_ _e a Notice of Appea_ _l_ _befo_ _r_ _e_ _obtaining the certificate.__I_ _t follows therefore that an appea_ _l_ _can be_ _competent_ _l_ _y instituted prior to the certificate being obtained. Second_ _l_ _y,_ _ru_ _l_ _e_ 4 _of the_ _R_ _u_ _l_ _es of the Court of Appeal gives discretion to that co_ _u_ _rt to_ _extend_ _time_ _fixed by the rules. In the circumstances it is sti_ _ll_ _possi_ _bl_ _e for_ _the appe_ _ll_ _ants to rectify the omission."_ The Supreme Court granted the appellants' application for adjournment 20 to enable them to regularize their appeal. The appellants pursued their application before the Court Appeal but the Court of Appeal declined to grant them the certificate on the ground that the issues raised were not points of law of great public importance or novel. ( see: Criminal Application No.12 of 1999(CA) (unreported). Thereafter, the appellants successfully applied for leave to appeal before the Supreme Court under the provisions of section 5(5) which does not impose the said restrictions on the Supreme Court in determining to hear a third appeal. I have also come across another example of a third appeal. This is Lt Col. 30 Badru Kiyingi v Uganda, Criminal Appeal No 19 of 1999 (unreported). The appellant was tried and convicted by the Chief Magistrate Buganda Road Court of simple robbery contrary to sections 272 and 273(l) (a) of 12 5 the Penal Code Act and was sentenced to seven years imprisonment. His appeal to the High Court was dismissed. He then appealed to the Court of Appeal which allowed the appeal but substituted the conviction of robbery with that of stolen property contrary to section 298 of the Penal Code Act and sentenced him to five years imprisonment. He appealed to 10 the Supreme Court against the decision of the Court of Appeal. When the appeal was called for hearing, the Court inquired from counsel for the appellant whether the appellant had sought and obtained a certificate to appeal as required by section 6(5),which is now section 5(5), of the Judicature Act, whereupon counsel for the respondent raised an objection to the competence of the appeal for non-compliance with the said provision as well as Rule 59(2) and (3) (b) (now 60 (2) and(3),of the Supreme Court Rules and applied for it to be struck out. Counsel for the appellant contended that an appeal can be lodged in the Supreme Court without the intending appellant first seeking a certificate from the Court of Appeal because the Supreme Court has an overall responsibility to see that justice is done by virtue of section 6(5), which is now section 5(5) of the Judicature Statute. The Court said the following: _"The appeal before us emanates from a decision of a Chief Magistrate_ _._ _The appeal first went to the High Court. From there a second appea_ _l_ _went to the Court of Appeal_ _.__There from came this appeal which is a third_ _appeal. Third appeals are now regulated by subsection_(5) _of section_ 6' _of_ _the judicature_ _Statute_ _.__Sub_ _-__section_(5) _reads:__..__.”_ After reproducing the provisions of subsection (5), the Supreme Court then went on to clarify the legal position as follows: _3_ _0_ _(Prom the foregoing provisions) two scenarios emerge. The_ _f_ _irst scenario_ _is that a third appeal to thi_ _s_ _court is_ _pos_ _s_ _ible_ _if the Court of Appea_ _l_ _grants_ 13 _5_ _a certificate to the intended appellant that the subject_ _matter_ _of the_ _intended appeal raises a question or questions of_ _l_ _aw:__-_ _(1)__Of great pub_ _l_ _ic importance, or_ _(ii)__Of general importance._ _The second scenario is that a third appeal to this Court is possib_ _l_ _e_ _i_ _f_ _this_ _court in its overall duty to see that justice is done considers that the ap_ _p_ _ea_ _l_ _shou_ _l_ _d be heard._)) In addition to the above, the Supreme Court stated that Rules 39 and 59 (now 60) (f) of the Supreme Court Rules clearly provide that an intending appellant in a third appeal must first seek a certificate from the Court of 15 Appeal. That this point is clearly set out in Rule 37(1) (b)-(now 38(1) (b). It is appropriate to reproduce the provisions which state as follows: "37(1)In criminal matters:- (a) Where an appeal lies if the Court of Appeal certifies that a question or questions of great public importance or arises, applications to the 20 Court of Appeal shall be made informally at the time when the decision of the Court of Appeal is given against which the intended appeal is to be taken; failing which a formal application by notice of motion may be lodged in the Court of Appeal within 14 days after the decision , costs of which shall lie in the discretion of the Court 25 of Appeal; (b) _If the Court of Appeal refuses to grant a certificate as referred to in_ _paragraph (a) of th_ _i_ _s sub rule, an application may be lodged by_ _notice of motion in the Court within 14 days after the refusal to_ _grant the certificate by the Court o_ _f_ _Appeal, for leave to appeal on_ 30 _the ground that the intended appeal raises one or more matters of_ _public or general importance which_ _w_ _ould be proper for the Court_ 14 5 _to review in order to see that justice is done."_(the underlining is supplied.) The Supreme Court then explained that it is clear, from the foregoing, that before a third appeal can be filed in this Court without the certificate of the Court of Appeal referred above, the following steps 10 have to be taken: _"(s_ _)_ The _intending appellant must first seek a certificate from the Court_ _of .Ap_ _p_ _ea_ _l_ _;_ _(c) The Court of Appea_ _l_ _should have refused to grant that cer_ _t_ _i_ _ficate_ _;_ _1_ _5_ _(d)The intending appe_ _ll_ _ant must_ _f_ _i_ _l_ _e an application for_ _l_ _eave by way of_ _notice of motion within fourteen days after the Court of Appea_ _l_ _has_ _refused to grant the certificate) and_ _(__e) That notice of motion must indicate in its body that the app_ _li_ _cant_ _seeks_ _l_ _eave to appeal on the ground that the Intended appea_ _l_ _raises_ _2_ _0_ _one or more matters of public or genera_ _l_ _importance whic_ _h_ _wou_ _l_ _d_ _be proper for the court to review In order to see that Just_ _i_ _ce is_ _done._ In that case, the Court found that none of the above steps had been taken and rejected the contentions by counsel for the appellant. 25 The Supreme Court also considered the provisions of Rules 55(3) and came to the conclusion that the rule must have been intended to protect an intending appellant in that he/she should file the notice of appeal within the prescribed period without waiting for the certificate of the Court of Appeal or the leave of the Supreme Court. The rule reads as follows: 15 -_ 5 "55(3)( now 60(3), where an appeal lies only with leave or on a certificate that a point of law of great public or general importance is involved, it shall not be necessary to obtain the certificate or leave before lodging the Notice of Appeal." The opinion of the Court on this was buttressed by paragraphs (f) of sub rule (2) of Rule 59 (now 60) and sub rules (3) and (4) thereof which read as follows: "59(2) For the purpose of an appeal from the Court of Appeal, the record of appeal shall contain documents relating to proceedings in the trial court and shall also contain copies of the following documents relating to the first Court- (a) to (e) are not applicable. (f) In the case of a third appeal, it shall contain also the corresponding documents in relation to the second appeal the certificate of the Court of Appeal that a point of law of great public or general 20 importance is involved. (3) Notwithstanding sub rule (1) of this rule, the registrar of the Court of Appeal shall not prepare the record of appeal- (b) Where the appeal cannot be heard without leave to appeal or a certificate that a point of law of great public or general importance is 25 involved, until he or she has been notified that the leave or certificate has been given or unless the Chief Justice otherwise directs." The Supreme Court distinguished this case from the one of Professor Ssenyonga (supra) and held that: _"The two matters are distinguishable.__Unlike_ _in the present case) in the_ _Ssenyonga_ _appeal_ _,__the appellant had actuall_ _y_ _lodged a notice of motion in_ _the Court of Appeal seeking for th_ _e_ _r_ _e_ _qui_ _s_ _ite certificate. In the present_ 16 " _case the appellant through his counsel contends that the certificate need_ _not be sought. This raises a fundamental distinction between_ _t_ _he two_ _cases._ _As we have a_ _l_ _ready shown}___no third appea__ __l__ __to this court is possib__ __l__ __e witho__ __u__ __t__ __the certificate of the Court of Appeal or__ __l__ __eave of this Court.___For the_ _1_ _0_ _foregoing reasons we are satisfied that this appea_ _l_ _is not proper_ _l_ _y before_ _u_ _s_ _and the same is struck out_ _.__"_(Underlining is supplied for emphasis.) The reasoning and conclusions by the Supreme Court in the two cases above support the findings by the learned Justice that the applicant's appeal appears incompetent in that he had not only lodged it without the requisite certificate. **I****t** is also apparent that the time within which to lodge the application before the Court of Appeal had long expired by the time the learned Justice made the impugned Ruling. However, since the appeal has not yet been set down for hearing, perhaps counsel still has an opportunity to regularize it by following the laid down procedure and 20 pursuing the matter before the Court of Appeal first. The foregoing conclusion disposes of grounds (a), (b), (d) and (e) of the reference. This brings me to the complaint in ground (c)of the reference that the learned Justice erred in law and in fact when he held that Criminal **Appeal No. 75 of 2015** was incompetent without allowing counsel to address him on that issue thereby denying the applicant a fair hearing, thus leading to a miscarriage of justice. With due respect to counsel for the applicant, this ground is not borne out by the record. The learned Justice never held that the appeal was 30 incompetent. The relevant part of the ruling reads as follows: _"A third appea_ _l_ _like the instant one would be instituted by leave of court_ _through a certificate_ _of_ _importance._ 17 I' 5 _I have not seen a certificate of the Court of Appeal that the matter raises a_ _question of great p_ _u_ _blic or general_ _importa_ _n_ _ce.__Without such cer_ _t_ _i_ _f_ _icate,_ _the_ _Appeal No._ 75 _of 2015_ __would be incompetent__ _an incom_ _p_ _etent_ _appea_ _l_ _has no probability of success for the purpose of bai_ _l_ _applica_ _t_ _ion._ " It is not in dispute that the learned Justice was considering the conditions 10 for the grant of a bail application when he made that finding. To him and I share the same view, the most important consideration was the success of the appeal. In so doing, the learned Justice had to rely on the record of proceedings before him, since the appeal was yet to be argued before the full panel of the Supreme Court. In discussing the probability of success of the said appeal within the context of the bail application before him, he perused the record and found that the appeal had been lodged without the requisite certificate from the Court of Appeal, yet it was a third appeal. That is the reason why he formed that opinion that the appeal would appear incompetent. At that 20 point during the drafting of his ruling, I do not think that the learned Justice had to go back to court to give the parties a hearing. He had all the relevant materials before him to make a decision on the application before him, and that is precisely what the learned Justice did. I also believe that the learned Justice possessed the requisite legal knowledge and experience to assess the probability of success of the appeal for purposes of bail application without running back to the applicant for his views. No judge would complete a case, if that were to be the practice. In my considered opinion, the determination of the issue whether the appeal was a third appeal or not was a legal issue. All the 30 learned Justice had to do was to peruse the Record of Proceedings and apply the law. That is precisely what he did, and he cannot be faulted for it. 18 5 The last substantive ground of the reference is (e), where the applicant complained that the learned Justice erred in law and in fact when he held that Criminal **Appeal No. 75 of 2015** was incompetent yet such a decision can only be taken by a full panel of the Supreme Court Justices consisting of five justices and only when the appeal comes up for hearing. 10 The discussion and conclusions on ground (d) largely answer the concern raised in this ground. As earlier stated, the learned Justice did not determine the appeal. He had no jurisdiction to do so. He merely opined that it appeared incompetent due to the absence of the requisite certificate from the Court of Appeal. What he determined was the application for bail pending appeal which he dismissed for failure to satisfy the conditions for the grant of such applications laid down by the courts. Criminal **Appeal No. 75 of 2015** is still pending before this Court to date. As learned counsel for the respondent submitted rightly in my view, the learned Justice had the powers to make that decision under section 8(1) of 20 the Judicature Act. **I****n** the premises and for the reasons above, I find no reason to interfere with the exercise of discretion by the learned Justice. The reference is dismissed and his orders are affirmed. Dated at Kampala this 19th .. day _Of April_ _20_ _1_ _7_ M.S. ARACH AMOKO JUSTICE OF THE SUPREME COURT 19 __ - 5 **THE REPUBL****I****C OF UGANDA** **IN THE SUPREME COURT OF UGANDA** **CR****I****MINAL REFERENCE NO****.****1 OF 2016** **(C****OR****AM: STELLA A****R****ACH****-****AM****O****K****O****, FAI****TH****MW****O****N****D****HA,****LILLI****AN** 10 **TI****B****ATEMWA****-****EKI****R****IKUBINZA, JJ.SC.)** **BETWEEN** 15 **BUSULWA BULAS****I****O** **U****GANDA** ................................ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . **A****ND** ................................. **.............................****.****...** **APPLICANT** **RESPONDENT** 20 _**JUDGMENT OF PROF. DR. LILLIAN TI**_ _**B**_ _**ATEMW A-EKIRIKU**_ _**B**_ _**IN**_ _**Z**_ _**A**_ _**.**_ I had the benefit of reading in advance the draft ruling prepared by my learned sister, Arach-Amoko, JSC. I agree with her that the reference should be dismissed. 25 I specifically agree with her analysis and conclusion that Criminal Appeal No. 75 was a third appeal but wish to emphasize some points in regard to this matter. The background to the matter before court is that the present applicant was tried for an offence by a Magistrate Grade 1 Court but was acquitted of the charge. The DPP being dissatisfied with the decision appealed to the High Court. The High Court overturned the decision of the magistrate's court and convicted the appellant. The appellant in turn appealed to the Court of Appeal which confirmed the conviction and sentence of the High Court. Dissatisfied with this decision the appellant appealed to this Court. 35 When a case comes from the Magistrate's Court to the High Court, _ir_ _r_ _espective of the party appealing_ , the High Court as a first appellate 1 5 court is obliged to _**re-evaluate**_ _the evidence adduced by each_ _o_ _f th_ _e_ _parties_ in order to come to its own conclusion. The court will evaluate the case evidence in its entirety. This duty was well articulated in the locus classicus case of **Kifamunte Henry v Uganda****,****Supreme Court** **Cr****i****minal Appeal No****.10****of 1997****.** In effect the High Court will be 10 considering a matter hitherto resolved by an earlier court, it would not be a court of first instance. Therefore when the appeal was made to the Court of Appeal, the court had the matter as a second appellate court. A further appeal to the Supreme Court against the Court of Appeal decision would be a third appeal. What would make the 15 Supreme Court a third appellate court is the fact that the evidence in support of each of the parties would have already been considered by the Magistrate's Court as a court of first instance, then the High Court as first appellate court and the Court of Appeal as a second appellate court. At each stage/each court, the merits between the 20 parties are considered and a decision is arrived at by process of law. To argue that the appeal to the Supreme Court does not constitute a 3rd appeal because the first time the applicant appealed against a decision was in the Court of Appeal is to contend or imply that a court hearing an appeal limits its consideration of the matter to the 25 arguments of the person who has appealed against the earlier decision. I also wish to express myself on a few other matters touching this reference. I will deal first with the fourth ground of appeal to the effect that the 30 learned Justice Aweri-Opio erred when he held that an appeal without a certificate of importance from the Court of Appeal or without leave of the Supreme Court would be incompetent. In resolving the matter before Court, I am guided by **Section 5 (5) of** **the Judicature Act which** provides _inter alia_ that a party may lodge 35 a third appeal to the Supreme Court in a criminal matter: " ... **with** **the certificate of the Court of Appeal that the matter raises a** **question of law of great public or general****i****mportance****."** 2 5 I am further guided by Rule 38 of the Supreme Court Rules which states as follows: Application for certificate of importance or leave to appeal in criminal matters. (1) In criminal matters- 10 (a) where an appeal lies if the Court of Appeal certifies that a question or questions of great public or general importance arise, applications to the Court of Appeal shall be made informally at the time when the decision of the Court of Appeal is given against which the 15 intended appeal is to be taken; failing which a formal application by notice of motion may be lodged in the Court of Appeal within fourteen days after the decision, the costs of which will lie in the discretion of the Court of Appeal; and 20 (b) _if the Court of Appeal refuses to grant a certificate_ _as referred to in paragraph (a) of this sub rule, an_ _application may be lodged by notice of motion in the_ _court within fourteen days after the refusal to grant_ _the certificate by the Court of Appeal_ , for leave to 25 appeal on the ground that the intended appeal raises one or more matters of great public or general importance which would be proper for the court to review in order to see that justice is done. I am also guided by Rule 40 of the Supreme Court Rules which 30 provides as follows: Application before or after notice of appeal (1) Where application for a certificate or for leave is necessary, _it may be made before or after the notice of_ _appeal is lodged_. (My emphasis) 35 Furthermore Rule 56 (3) provides that: 3 5 **Where an** appeal lies **only with leave or on a certificate** **that a point of law of great public or general** **importance is involved,**_**it shall not**_ _**.**__**be necessary to**_ _**obtain the certificate or leave before lodging the notice**_ _**of appeal.**_(My emphasis) 10 It is clear from the above provisions that an application for a certificate of importance may be made before or after the lodging of the Notice of Appeal. I therefore find that the filing of the Notice of Appeal in the Supreme Court without a Certificate of Importance did not render the appeal 15 incompetent. The applicant therefore succeeds on this ground. A related argument by the applicant's counsel was that the learned Justice did not give him an opportunity to be heard on the issue of the competence of the appeal. 20 I opine that the question of whether or not the appeal was competent is a question of law. It is not a question of fact and therefore cannot be said to be exclusively in the knowledge of the party. Arising from this, a judicial officer need not hear the submissions of counsel regarding a legal as opposed to a factual issue before determining the 25 law pertaining to a particular matter. Consequently, the arguments of counsel regarding this matter are misconceived. In regard to whether a single judge has power to determine the competence of a pending appeal while hearing an application for grant of bail pending appeal, I am guided by **Section 8** of the 30 **Jud****i****cature Act** which provides as follows: **(****l)A single justice of the Supreme Court may exercise** _**any power**_**vested****i****n the Supreme Court in any** **interlocutory cause or ma****t****ter before the Supreme** **Court****.**(My emphasis) 35 **(2)Any person dissatisfied w****i****th the decision of a single** **justice in the exercise of a power under subsection** 4 . , " '. 5 **(1) is entitled to have the matter determined by a** **bench of three justices of the Supreme Court which** **may confirm****,****vary or reverse the decision****.** Under **Rule 50 (1)** of the **Supreme Court Rules****,** it is provided that: **Every application, other than an application included** 10 **i****n sub rule (2) of this rule****,****shall be heard by a single** **judge of the court; excep****t****that the application may be** **adjourned by the judge for determination by the court.** **Sub rule****(****2****)** **This rule shall not apply to the following-** 15 **(****a****)****an application for leave to appeal, or for a** **certificate that a question or questions of great public** **or general importance arise****;** **(****b) an application for a stay of execution, injunction or** **stay of p****ro****ceedings;** 20 **(****c) an application to strike out a notice of appeal or an** **appeal; or** **(****d) an application made as anc****i****llary to an application** **under paragraph (a) or****(****b) of this sub rule or made** **informally in the course of the hearing, including an** 25 **application for leave or****t****o extend time if the** **proceedings are found to be deficient in those matters** **in the course of the hearing.** The import of Section 8 of the Judicature Act and of Rule 50 (1) is that as a general rule, a single Justice is authorized to determine 30 matters which a panel of three justices have the power to handle. However Rule 50 (2) creates exceptions to the general rule and outlines matters (applications) which a single Justice cannot handle- an application for bail pending appeal is not one of such applications. It must be noted that the question whether or not Criminal Appeal 35 No. 75 was competently before the Court was discussed by the single Justice only as a question ancillary to the application for bail pending 5 " e, 5 appeal. Since a single Justice is empowered to handle applications for bail pending appeal and to use her/his **discretion** in determining the matter, I find that we cannot limit the factors which such a single justice would consider in arriving at a judicial decision. It follows therefore that in considering the probability of success of the appeal, 10 a judge may consider whether the appeal is _on the face of it,_ competently before the Court. I therefore find the arguments of the applicant's counsel regarding this issue misconceived. In considering whether the applicant should be granted bail pending 15 appeal, the judge considered the likelihood of success of the pending appeal as one of the factors which should guide the court's decision. As observed in **Singh Lamba vs. R (1958) E.A 337,** a distinction between an application for bail pending trial and an application for bail post-conviction ought to be made. 20 An applicant for bail pending appeal bears the burden of proving that there are exceptional reasons to warrant his or her release on bail. This is because the presumption of innocence no longer holds. This can be said to be true in cases of a first appeal, second appeal and even much more strongly when dealing with an application of a party 25 who has been declared guilty by 2 appellate courts, as is in this matter before court. Furthermore, I note that there is no law which obliges a judicial officer to base her discretion to decline granting of bail on more than one ground. It is my considered view that one ground can be strong 30 enough to support the judicial decision of not granting bail. It follows that a judge's discretion cannot be challenged for its being solely based on one ground. Whereas I differ from the learned Justice Opio-Aweri’s finding that the appeal in question is incompetent for want of a certificate of 35 importance, I nevertheless agree with him that a 3rd appeal cannot be said to have a **high probability** of success. On this ground alone, I would decline to grant the applicant bail pending appeal. 6 5 10 15 For the reasons given, this reference is hereby dismissed. Dated at Kampala this ..... 19th. day of . _April_ 201 7. .............. . **HON. JUSTICE PROF. DR. LILLIAN TIBATEMWA-EKIRIKUBINZA** **JUSTICE OF THE SUPREME COURT.** 7 , . **THE REPUBLIC****·****OF UGANDA** **IN THE SUPREME COURT OF UGANDA AT KAMPALA** _Coram_ _:__Arach-Amoko; Mwondha; Tibatemwa JJ.S.c._ **CRIMINAL REFERENCE NO.1 OF 2016** **(Ari****s****ing out of Criminal Application No 6 of 2015****& ****Criminal Appeal** **No. 75 of 2015)** _**Between**_ BUSULWA BULASIO **.****••****.****.****..****.•****•****.•.****.****•.•****.****.•••••••.•.****..****.****.****•****..****.****.****•****.****.** APPELLANT **And** **UGANDA RESPONDENT** _(Reference fr_ _o_ _m the_ _R_ _uling of_ _O_ _pio-Aweri JSC (Single Justice) dated 19_ _t_ _h_ _February_ _,__2_ _0_ _16 Criminal Application N_ _o_ _.__6 of2015}_ **JUDGMENT OF MWONDHA JSC** I had the opportunity to read in draft the Ruling of my sister Justice Arach- Amoko. I agree that the main issue for determination in the reference is whether or not the learned Justice Opio-Aweri JSC rightly came to the conclusion that the appeal was a third appeal and therefore incompetent for lack of Certificate of importance from the Court of Appeal. I agree with the principle of case law that an appellate Court will not interfere in the exercise of Judges discretion unless if it is apparent that it was wrongly exercised leading to injustice. 1 , ' I also agree with the five aspects of the main issue for consideration as stated I however differ from the resolution as resolved by the learned sister Justice:- Issue 1:- whether the applicants appeal is a third appeal. Learned Justice Opio Aweri found that this appeal was a third appeal and there was no certificate of importance from the Court of Appeal and therefore was incompetent. He said:- **"****an appeal which has gone through** **two appellate systems like the insta****n****t case cannot be said to have a** **high probability of success****.****I also note that the applicants appeal to** **the Supreme Court appears to be a third appea****l****and would be** **incompetent in view of Section 5****(****5****)****of the Jud****i****cature Act among** **others****"** He relied on the case of **Twagira v****.****Uganda Supreme Court Cr****i****minal** **Appeal No 27 of 2003****.** He added:- **"****an incompetent appeal has no** **probability of success fo****r****purpose of bail application."** I had the liberty to read the **Twagira case** relied on by the learned Justice Opio Aweri. As Counsel for the applicant argued and I accept his submission, the **Twagira case** was far distinguishable from the facts of the instant case. I will heavily reproduce the same for appreciating the difference. The appellant in the **Twag****ir****a case****,** was charged with two offences and appeared before the Chief Magistrate Court for trial. The Chief Magistrate heard the evidence of the prosecution and at the close of the prosecution case, he found that there was a case to answer to require the accused to give his defence. Instead of the appellant giving his defence he filed an application for a revisional order in the High Court. The application was dismissed by the High Court and ordered that the file be remitted back to Chief Magistrate for further hearing. The appellant having not been satisfied by the High Court he appealed to the Court of Appeal and purported to apply for leave to appeal in the Court of Appeal. The application for leave was not granted by the Court of Appeal but instead the 2 Court of Appeal held that the 1st right of Appeal of the appellant accrued when the appellant applied to High Court and the High Court dismissed the application. It held further that the subsequent appeal to the Court of Appeal would be his 2nd right of appeal he was exercising so he did not have to seek for leave to hear the appeal in the Court of Appeal. The Court of Appeal dismissed the appeal. The appellant appealed to the Supreme Court which dismissed the appeal as incompetent for the following reasons:- (1) Under S. 5(5) of the Judicature Act there is no right of appeal from interlocutory ruling of Chief Magistrate or Magistrate Grade I permitted to come to the Supreme Court. There was no other law Court was aware which grants a right of appeal against such rulings. Even if such an appeal could be made it could only come to the Supreme Court with leave. (2) S.5 (5) of the Judicature Act doesn't confer a right of appeal to High Court in respect of interlocutory orders. The Supreme Court reproduced S.5(5) of the Judicature Act as here below:- **"Where the appeal emanates from a judgment of a Chief** **Magistrate or Magistrate Grade I in exercise of their original** **jurisdiction and either the accused person or has appealed to the** **High Court and the Court of Appeal, the accused person or may** **may lodge a third appeal to the Supreme Court with the** **certificate of the Court of Appeal that the matter raises a** **question or questions of law of great public importance, or if the** **Supreme Court in its overall duty to see that justice is done** **considers that the appeal should be heard.** The Supreme Court faulted the Court of Appeal in holding that the appeal before them was 2nd appeal. The learned Justices held that the appellant had no right of appeal to High Court, Court of Appeal or the Supreme Court. The reason as earlier given was that **S. 5(5) of the Judicature Act** **doesn't confer any right of appeal from interlocutory matters from** **Chief Magistrate or Magistrate Grade I Court.** 3 That is why the appeal was dismissed as incompetent and the trial was ordered to resume. From the reasoning of the Supreme Court, it is clear in my mind that even if the appeal was to be before it with leave, the appeal would be incompetent, because the matter in Chief Magistrates had not been completed to its finality. The Court cited various cases like **Jet****h****wa and Another v****.****Republic [1969]** **EA 459****,****Republ****i****c Wandira [1975****]****EA 262****,****Republic v****.****K****i****dasa [1973] EA** **368 among othe****r****s****.** The Court said, that all those cases the trial Magistrates had concluded the trial at the close of the prosecution case by delivering final judgments. In those decisions each appellant had a right of appeal because his case had been concluded by the respective trial Magistrate and the same position is reflected in Section 127 of the MCA. The right of appeal belongs to any party not the Court before which the parties are appearing and that is why S.5(5) provides for either the accused person or the DPP which signifies that whichever party is dissatisfied can appeal starting at High Court going to Court of Appeal and the 3rd appeal with leave of Court of Appeal. The right of appeal cannot accrue concurrently to both parties. I do not therefore agree with my sisters draft judgment, that it is the number of times the case has appeared in Court not the party. In this case the right of appeal accrued to the DPP not the accused since the accused had been acquitted. It is also apparent to me that a right of appeal according to S. 5 (5) of the Judicature Act does not accrue to the parties at the same time in the same Court. The Chief Magistrates Court or Magistrate Grade I has to be in exercise of the original jurisdiction and this is where either the accused or DPP if dissatisfied by the final judgment of that Court can have the 1 st right of appeal to High Court accruing. In other words my view is that one has to be an appellant from Magistrates Court to High Court, Court of Appeal, and then to Supreme Court when a certificate of importance is required for the 3rd Appeal. In the instant case, the appellant was not, the appellant from 4 · . Magistrates Court to High Court. It was the DPP and the lower Court decision/judgment was set aside and was substituted with conviction and sentence of 30 months imprisonment. Then the 1st right of appeal accrued to the appellant to the Court of Appeal from the final decision of the High Court. That being the case the appeal to Supreme Court was the 2nd appeal so there was no requirement of Certificate of importance. The first issue is resolved in the negative that the appeal to the Supreme Court was not a 3rd appeal as the learned Justice Opio-Aweri determined so. Issue two:- I have answered this issue when addressing issue one. For avoidance of doubt I will emphasise that lack of a certificate of importance does not render the appeal incompetent. This is so because the **pro****v****ision's** of S.5 (5) of the Judicature Act are wide, they state at the end **"****o****r****if the Supreme** **Court in its ove****r****all duty to see t****h****at Justice****i****s done considers that the** **appea****l****should be heard****."** My understanding of the above is that when the full Coram sits, it has the discretion to hear and determine the same even without a certificate of importance in the interest of Justice for the party pursuing the appeal to exhaust his or her rights. Also **Article****1****26 (2) (e****)****of[the Constitution](/akn/ug/act/statute/1995/constitution)****)** is clear. Issue three:- I am aware that the rules of this Court clothes a Court presided over by a single Justice with powers of the full Court. However these powers in my view are as far as interlocutory applications are concerned and the boundaries have to be borne in mind by that Court. The issues of competence of the appeal, with all due respect have to be reserved for the full Coram to determine. For reason that the appeal can not be before that Court at the time. So obviously in my view the learned Justice didn't have the power to determine the competence of the appeal for whatever reason. 5 _L_ _._ , , Issue four:- If the learned single Justice decided to deal with matters of Competence of the appeal which he did not have to it goes without saying that he was obliged to accord the applicant the opportunity to be heard before reaching that conclusion. **Art****i****c****l****e 44****(****c****)****of[the Constitution](/akn/ug/act/statute/1995/constitution) is clear - no derogation from the right ** **to****f****air hear****i****ng in any circumstances****.** This is one of the four human rights and freedoms which the constitution prohibits to be derogated from enjoyment notwithstanding anything in [the Constitution](/akn/ug/act/statute/1995/constitution). The appellant was condemned unheard and this also contributed to the unjustified refusal for grant of bail pending appeal application. Issue five:- It was clear to me that the decision was based on wrong principle. I would reverse the decision of the learned single Justice. As for granting the bail pending appeal I am of the view that considering the length of the sentence and the delays in concluding this matter, and having nothing on record to show whether the appellant/ applicant is still serving sentence, I would decline to order that he is released on bail pending appeal. In the result I would allow the reference. Dated at Kampala this 1.9th day Of April 2017 Hon. Lady Faith Mwondha **JUSTICE SUPREME CO****U****RT** 6 #### __Related documents #### More documents like this one ▲ To the top >