Nahabwe v Uganda (Miscellaneous Application 16 of 2020) [2021] UGSC 41 (20 August 2021)

#### THE REPUBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA AT KAMPALA

## **MISCELLANEOUS APPLICATION NO. 16 OF 2020**

(Coram: Owiny-Dollo, CJ; Opio-Aweri, Tibatemwa-Ekirikubinza, Mugamba, Tuhaise, JJSC)

#### **BETWEEN**

NAHABWE JACKLINE ....................................

#### AND

**UGANDA ...................................**

[Application arising from the decision of the Court of Appeal vide 15 *Criminal Appeal No. 322 of 2016 before Hon. Justices: Musoke, Obura.* and Muhanguzi, JJA dated 20<sup>th</sup> October 2020.]

## **Representation:**

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Mr. Henry Kunya of Henry Kunya & Co. Advocates appeared for the 20 applicant while Ms. Vicky Nabisenke, Assistant Director of Public Prosecutions, appeared for the respondent.

## **RULING OF THE COURT**

This application arises from an intended third appeal from the Court of Appeal decision. It was brought under **Section 5 (5)** of the

Judicature Act, and Rules 2 (2), 38 (1) (b), 42 (1) and (2), 43 (1) 25 and 50 (1) and (2) of the Rules of this Court for orders that:

- 1. A certificate of importance be issued because the intended third appeal to this Honourable Court raises a question of law of great public or general importance; and - 2. This Honourable Court be pleased to consider its overall duty of review and see that justice is done by allowing the hearing of the intended $3^{rd}$ appeal.

The grounds contained in the Notice of Motion were as follows:

- 1. That upon going through the judgment of the Court of Appeal, the Applicant's lawyers realised that the decision raised substantial questions of law or issues of great importance to be determined on appeal to the Supreme Court, that is to say: "Whether the Second Appellate Court can merely accept the conclusions of the first appellate court without having adequately scrutinized the evidence on record." - 2. [That] the applicant also filed an application for a certificate 20 of great public importance in the Court of Appeal but the same was heard and dismissed on 20<sup>th</sup> October, 2020.

The application was supported by the affidavit of the applicant herself, and opposed by the affidavits in reply of Baine Stanley Moses and Nakafeero Fatinah, both of whom were Chief State Attorneys in 25 the Office of the Director of Public Prosecutions.

## Background to the application

The brief background to this application is that the applicant was charged with and convicted of one count of attempted murder

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contrary to Section 204 (a) of the Penal Code Act, Cap. 120 and $-5$ one count of conspiracy to commit a felony contrary to Section 390 of the Penal Code Act, by the Chief Magistrate's Court of Buganda Road (Her Worship Bucyana presiding). She was, consequently, sentenced to 8 years' imprisonment for attempted murder and 3 years' imprisonment for conspiracy to commit a felony. Both 10 sentences were to run concurrently.

In her first appeal to the High Court (before Murangira, J.), the applicant's convictions were upheld and in addition a compensation order of UGX 30,000,000 (thirty million) was imposed.

- On second appeal to the Court of Appeal (before Hon. Justices: 15 Musoke, Obura, and Muhanguzi, JJA), the court upheld the applicant's convictions and custodial sentences. The court however, quashed the compensatory order that had been imposed by the High Court. - Intending to file a third appeal to this court, the applicant filed an 20 application before the Court of Appeal (Miscellaneous Application No. 184 of 2019) for a certificate of importance to the effect that her intended appeal to this Court raised questions of law of great public or general importance. The Court of Appeal (Kakuru, Musota, and Madrama, JJA) dismissed the application on the premise that it did 25 not have merit. The applicant has however not attached the Ruling of the Court of Appeal to her affidavit; the only document she attached was the resultant formal order of dismissal.

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Consequently, the applicant came to this Court and lodged the $\overline{5}$ instant application.

The applicant in Paragraph 6 of her affidavit indicated that the question of law of great public or general importance that is intended to be raised in the third appeal is: "Whether the second appellate

court can merely accept the conclusions of the first appellate $10$ court without having adequately scrutinized the evidence on record."

In reply, the respondent stated that the above question is limited to the applicant's case and does not transcend into a matter of great public or general importance. The respondent also stated that the 15 intended appeal has no likelihood of success and that the dismissal of the instant application would not occasion any miscarriage of justice to the applicant.

# Applicant's submissions

It was submitted on behalf of the applicant that: 20

The Court of Appeal, as a second appellate court, did not adequately appraise the inferences of fact that were drawn by the trial court. In this regard, it was submitted that the identification evidence which was adduced before the trial court was comprised of the testimony by a sole identifying witness in difficult circumstances. Counsel submitted that it was the duty of the Court of Appeal to re-appraise this evidence and come to its own conclusions as mandated by Rule 32 (2) of the Court of Appeal Rules.

- Furthermore, counsel submitted that the preceding submission 5 transcends the particular circumstances of the applicant and has a significant bearing on the public interest. Counsel further argued that although the said argument was raised in the courts below, it was not given due consideration. - Counsel therefore prayed that the leave sought to file a third appeal 10 be granted to the applicant.

## **Respondent's submissions**

In reply, it was argued on behalf of the respondent that the applicant failed to demonstrate that the application satisfied the principles for the grant of a certificate of importance as laid down in the persuasive Kenyan case of Hermanus Phillipus Styen vs. Giovanni Gnecci-Ruscone, (Supreme Court Criminal Application No. 4 of 2012), which was cited with approval in the Ugandan case of **Uganda vs.** Damian Akankwasa, (Court of Appeal Miscellaneous Application No. 58 of 2019). 20

Counsel for the respondent specifically argued that:

- 1. No issue or question was raised that would have any impact on the public interest. That the issues and question raised were limited to the particular circumstances of the applicant's case. - 2. The question regarding the evidence of a single identifying witness has been definitively settled by a plethora of judicial decisions including Abdullah Nabulere and Another vs. Uganda, (Court of Appeal Criminal Appeal No. 9 of 1978) and Bogere Moses vs. Uganda, (Supreme Court Criminal Appeal

No. 1 of 1997). That there was therefore neither uncertainty nor inconsistency in existing precedents, as regards this issue.

- 3. All the lower courts exhaustively considered and dealt with the question of the evidence of a single identifying witness. - 4. The applicant's fear that a miscarriage of justice will be occasioned to her if the certificate of importance is not granted is not in itself a basis for the grant of a certificate of importance.

Counsel thus prayed that this Court dismisses the application.

# Applicant's submissions in rejoinder

In rejoinder, Counsel for the applicant stated that they were in agreement with the principles articulated in the Hermanus Phillipus $15$ Styen vs. Giovanni Gnecci-Ruscone case (supra) and that indeed the instant application complied with those principles.

Counsel submitted that resolution of the questions raised would provide a precedent to other persons under similar situation as the applicant since the issues of interpretation and application of identification evidence are generally raised in criminal matters.

Counsel further contended that:

...any failure by the Court of Appeal (and other courts below) to address its mind to such a requirement [i.e. requirements to be followed in relying on the evidence of a single identifying witness] 25 of necessity renders it incumbent upon this Honourable Court to review the facts at hand to ensure that justice is done...

Counsel also argued that contrary to the respondent's submissions, the lower courts did not exhaustively address the issue of the single

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identifying witness, and that the failure occasioned a gross $-5$ miscarriage of justice that warranted the instant application.

Counsel concluded by reiterating the earlier prayers reproduced above.

## **Court's consideration**

The provisions of law governing third appeals to this Court and $10$ certificates of importance related thereto, are Section 5 (5) of the Judicature Act and Rule 38 (1) (b) of the Rules of this Court.

Section 5 (5) of the Judicature Act provides that:

Where the appeal emanates from a judgment of the chief magistrate or a magistrate grade 1 in the exercise of his or her original jurisdiction, ... 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 law 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 ... (Emphasis of Court)

Rule 38 (1) (b) of the Rules of this Court provides interalia that:

In criminal matters—if the Court of Appeal refuses to 25 grant a certificate (of importance) an application may be lodged ... 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. (Emphasis of Court)

In Namuddu Christine vs. Uganda (Supreme Court Criminal Application No. 3 of 1999), this Court noted, concerning what is

now Section 5 (5) of the Judicature Act and Rule 38 (1) (b) of the $-5$ Rules of this Court, that:

It appears to us that for leave to be granted by this Court, ... when this Court considers the application to review, this Court is not necessarily confined to only the matters which were considered by the Court of Appeal before it declined to give the certificate.

The Court noted further that:

Under subsection (5) of S.6, this Court will grant leave if the court, in its overall duty to see that justice is done, considers that the appeal should be heard ...., this court is not bound by the restrictions placed on the Court of Appeal ...

... this Court will grant leave if it considers that in order to do justice the appeal should be heard. Anything relevant to doing justice will be considered including questions of law of general or public importance.

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In deciding whether or not to grant leave we are not restricted to questions of law like the Court of Appeal. We have power to consider other matters.

Regarding a demonstration that the matters to be raised in the intended appeal are of public or general importance or raise 25 questions of great public or general importance, the Court noted that:

... the question should be sufficiently general or public in application, as would need settlement or clarification by a higher - appellate court. It may be that the expressions we are discussing $-5$ have not been defined by Statutes because each expression covers many circumstances which when considered in a particular case can constitute a "question of great general or public importance". - The Court, of its own accord and upon perusing the record, came to $10$ the conclusion that it needed to hear a third appeal in order to do justice to the case given that it appeared that the applicant can impermissibly been punished twice for the same act.

In Farook Aziz (Administrator of Estate of Salma Kabasingo) vs.

Abdalla Abdu Makuru, (Supreme Court Civil Appeal No. 04 of 2002), $15$ this Court, speaking to what is now Section 6 (2) of the Judicature Act, stated:

The purpose of this provision is to limit the right to lodge a third appeal to only cases where questions of great public or general importance which have far reaching consequences on the society 20 and the general development of the law are involved. It is not sufficient that the grounds of objection raise questions of law, or that the parties have consented to the granting of certificate to the appellant to leave to appeal. The appellant must state the

matter of great public or general importance. $25$

> In Sophatia Beithi and 3 Others vs. Nangobi Jane and 2 Ors, (Supreme Court Civil Application No. 7 of 2015), this Court noted that the Judicature Act does not define the terms "great public

importance" and "general importance". The Court then laid out the $\mathsf{S}$ principles governing grant of a certificate of importance as follows:

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- 1) For a case to be certified as one involving a matter of general public importance, the intending appellant must satisfy the Court that the issue to be canvassed on appeal is one the determination of which transcends the circumstances of the particular case, and has a significant bearing on the public interest; - 2) Where the matter in respect of which certification is sought raises a point of law, the intending appellant must demonstrate that such a point is a substantial one, the determination of which will have a significant bearing on the public interest; - 3) Such question or questions of law must have arisen in the Court or Courts below, and must have been the subject of judicial determination; - 4) Where the application for certification has been occasioned by a state of uncertainty in the law, arising from contradictory precedents, the Supreme Court may either resolve the uncertainty, as it may determine, or refer the matter to the Court of Appeal for its determination; - 5) Mere apprehension of miscarriage of justice, a matter most apt for resolution in the lower superior courts, is

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not a proper basis for granting certification for an appeal to the Supreme Court; the matter to be certified for a final appeal in the Supreme Court, must still fall within the terms of Article $163(4)(b)$ of the Constitution; This is equivalent to our Article 132(3) and S.6(2) of the Judicature Act.

- 6) The intending applicant has an obligation to identify and concisely set out the specific elements of "general public importance" which he or she attributes to the matter for which certification is sought; - 7) Determinations of fact in contests between parties are not, by themselves, a basis for granting certification for an appeal before the Supreme Court. - 8) Issues of law of repeated occurrence in the general course of litigation may, in proper context, become "matters of general public importance", so as to be a basis for appeal to the Supreme Court; - 9) Questions of law that are, as a fact, or as appears from the very nature of things, set to affect considerable numbers of persons in general, or as litigants, may "matters of general public importance", **hecome** justifying certification for final appeal in the supreme Court;

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- 10) Questions of law that are destined to continually engage the working of the judicial organs, may become "matters of general public importance", justifying certification for final appeal in the Supreme Court; - 11) Questions with a bearing on the proper conduct of the administration of justice, may become "matters of general public importance," justifying final appeal in the Supreme Court. a deliver templa

The primary question, which the applicant proposes would be answered by the intended appeal is: "Whether the Second Appellate Court can merely accept the conclusions of the first appellate court without having adequately scrutinized the evidence on record."

The answer to the question is firmly established by clear precedents. There is no state of uncertainty in the law with regard to the role of a second appellate court insofar as reviewing the first appellate court's evidence is concerned.

The firmly established principle is that a second appellate court is not expected to re-evaluate evidence on record or question the concurrent findings of facts by lower courts unless in the clearest of cases it is found that they did not evaluate or re-evaluate the evidence or where they are proved manifestly wrong on findings of fact. It is only then that the second appellate court is obliged to do so and to ensure that justice is properly served. (Areet Sam vs. Uganda, (Supreme Court Criminal Appeal No. 20 of 2005)

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In Kifamunte Henry vs. Uganda (Supreme Court Criminal Appeal No. 10 of 1997) this Court stated that if a second appellate court reevaluates the facts of each case wholesale it would be assuming the duty of the first appellate Court. The Court continued to say that:

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- ... Once it has been established that there was some competent 10 evidence to support a finding of fact, it is not open, on second appeal to go into the sufficiency of that evidence or the reasonableness of the finding. Even if a court of first instance has wrongly directed itself on a point and the Court of first appellate Court has wrongly held that the trial Court correctly 15 directed itself, yet, if the Court of first appeal has correctly directed itself on the point, the second appellate Court cannot take a different view. - On second appeal, the Court of Appeal is precluded from questioning the findings of fact of the trial Court, provided that there was evidence 20 to support those findings, though it may think it possible, or even probable that it would not have itself come to the same conclusion. It can only interfere where it considers that there was no evidence to support the finding of fact, this being a question of law. (See: R. vs.

Hassan Bin Said (1942) 9 E. A. C. A.62; Bogere Charles vs. Uganda 25 (Supreme Court Criminal Appeal No.10 of 1996).

We also find that there is no uncertainty regarding the law on identification by a single identifying witness.

In our view, the applicant is merely dissatisfied with the lower courts' $\mathsf{S}$ findings and is seeking a way to file a third appeal that does not meet the requirements of the law.

From the record there is no reason to interfere with the concurrent findings of the courts below since the findings are not based on wrong principles.

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As a result, we decline to grant the orders and certificate sought.

In the result, the application is dismissed.

Dated at Kampala this ....................................

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HON. JUSTICE ALFONSE OWINY-DOLLO **CHIEF JUSTICE.**

Lusalenne

20 HON. JUSTICE RUBBY OPIO-AWERI, JUSTICE OF THE SUPREME COURT.

HON. JUSTICE PROF. TIBATEMWA-EKIRIKUBINZA 25 JUSTICE OF THE SUPREME COURT.

HON. JUSTICE PAUL MUGAMBA, JUSTICE OF THE SUPREME COURT. 30

MART

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$\bullet\bullet\bullet$ HON. JUSTICE PERCY TUHAISE JUSTICE OF THE SUPREME COURT.