Rex v Bamuta (Cr. App. 132/1931.) [1931] EACA 19 (1 January 1931)

## COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR JACOB BARTH, C. J. (Kenva). THOMAS and LUCIE-SMITH, JJ. (Kenva).

#### REX

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# YUSUFU S/O BAMUTA

## $(Appellant)$ .

### Cr. App. 132/1931.

- Jurisdiction of Court of Appeal.-On appeal against refusal to issue a writ of habeas corpus-on appeal from Order made in Revision. - An application had been made to the High Court of Uganda on behalf of one Yusufu s/o Bamuta for the issue of a writ of habeas corpus ad subjiciendum. - From the refusal of that Court to issue the writ an appeal was lodged. - Held (12-12-31).—That the Court of Appeal is not empowered to hear<br>an appeal from an order of the High Court of Uganda refusing<br>habeas corpus, where the High Court had ordered that the original<br>trial by the Lukiko Court Court, and, (3) that no appeal lies from a refusal to grant a writ of habeas corpus.

Johnson Davies for the Appellant.

J. B. Griffin, Acting Crown Counsel. for the Respondent (Attorney General of Uganda).

Griffin advanced a preliminary objection to the jurisdicton of the Court on the following grounds:-

- (1) That there was no appeal to the Court of Appeal from a decision of the Lukiko Court of Buganda. - (2) That there was no appeal to the Court of Appeal from a revisional order of the High Court of Uganda. - (3) That there was no appeal to the Court of Appeal on the refusal by the High Court to issue a writ of habeas corpus in "a criminal cause or matter".

Relied on the Uganda Agreement, 1900, Article 6, and the Uganda Agreement (Judicial), 1905, and Proclamation No. 412 of 1917, Native Courts in Buganda. Uganda Revised Laws, Cap. 4, Courts Ordinance, section 61 (2); Uganda Criminal Procedure Code, 1930, section 332; Rex v. Musa Ibrahim,

6 E. A. L. R., 117; Ex. parte Alice Woodhall (1888), 20 Q. B. D., 832; Ex parte Savarkar (1910), 2 K. B., 2056; Cox v. Hakes (1890), 15, A. C., 506; Stanley White v. Attorney General. E. A. P., 6 E. A. L. R., 3; Eshubaji v. Government of Nigeria $(1928)$ , 1 W. N.

Johnson Davies agreed there was no appeal from Native Court to Court of Appeal. This appeal is not designed to be an appeal from original jurisdiction nor from refusal to grant writ of habeas corpus but from finding of the Chief Justice that he had no right to issue such writ. He agreed that refusal to issue habeas corpus can go to another Judge.

He submitted there was inherent power in the High Court to correct errors.

Relied on Uganda Criminal Procedure Code, 1930, sections 339 and 340.

The judgment of the Court was delivered by Thomas, J.

JUDGMENT.—Yusufu Semukasa Bamuta, a Muganda of Mulago, was tried by a Native Court called the Lukiko in the Uganda Protectorate on a criminal charge under section 5 of the Adultery and Fornication Law, 1917 (Buganda Law). The judgment in that case was signed by one Judge only. In consequence the Provincial Commissioner, Buganda, for the reasons set out in his order, ordered that the case should be reheard by the Lukiko Court. That order was dated the 11th August, 1931.

Thereupon Danieri Kato, the brother of Yusufu Semukasa Bamuta, applied to the High Court of Uganda by Counsel for a writ of habeas corpus ad subjiciendum. This application was made on the 15th of August to the Chief Justice of Uganda who held that the proper course for the Court to take was to exercise its revisional jurisdiction and not to proceed by way of habeas As a result the Chief Justice decided that the case corpus. should be dealt with in revision when the record came up for inspection. On revision the Chief Justice ordered a retrial.

From the decision of the Chief Justice on the application made to him for a writ of habeas corpus Yusufu Semukasa Bamuta appeals to this Court.

At the hearing of the appeal Mr. Griffin, representing the Attorney General for Uganda, objected that this Court had no power to hear the appeal and submitted that (1) there was no appeal from a decision of the Lukiko Court of Uganda; (2) that there was no appeal to this Court in respect of orders made on revision by the High Court of Uganda; (3) that there was no appeal from a refusal to grant a writ of habeas corpus.

It has been admitted by Mr. Johnson Davies, counsel for the appellant, that there is no appeal from a decision of the Lukiko Court of Uganda.

In support of his second submission Mr. Griffin cited the case of Rex v. Musa Ibrahim, reported in Vol. 6 of the E. A. L. R. at p. 117. The decision in that case held "that the jurisdiction of this Court being limited by section 12 of the Uganda Courts Ordinance, 1911, to dealing with 'appeals from any finding, sentence or order recorded or passed by the High Court in the exercise of its original criminal jurisdiction' it being further expressly stated that 'it shall not have any power of revision or appeal other than as hereinbefore provided ' (except in certain other cases not bearing on this) we are unable to go behind the revisional order made by the High Court on which the accused Were we to do so we should in effect be exercising was tried. jurisdiction directly over an order made by the High Court in revision and not in exercise of its original jurisdiction. The order was final at the time it was made and the manner in which it was made cannot be called in question before this Court." That decision in our opinion is ample authority for the submission. made by Mr. Griffin.

There remains the question as to the right of appeal in the case of a refusal to grant a writ of habeas corpus. In support of this contention the following authorities were cited: Halsbury, Vol. 10, p. 73, paragraph 152; Ex parte Alice Woodhall, 1888, 20 Q. B. D., p. 882; Rex v. Governor of Brixton Prison cx parte Savarkar, 1910, 2 K. B., p. 1056; Stanley White v. Attorney General, E. A. P., 6 E. A. L. R., p. 3.

The right to appeal at the date of the decisions referred to in England depended on the Judicature Act, 1873. Section 19 of that Statute empowered the Court of Appeal to hear appeals from any judgment or order, save as hereinafter mentioned, of Her Majesty's High Court of Justice, or of any judges or judge thereof. There are certain exceptions and the material exception is contained in the last clause of section 47 which provides that " no appeal shall lie from any judgment of the said High Courtin any criminal cause or matter, save from some error of law apparent upon the record." In the case of ex parte Alice Woodhall, LORD ESHER, M. R. said: "Was the decision of the Queen's Bench Division, refusing the application for a writ of habeas corpus, a decision by way of judicial determination of a question raised in or with regard to the proceedings before Sir James Ingham? I am clearly of opinion that it was, and I think it is impossible to say that what took place before him was not a proceeding the subject matter of which was criminal." The reason for the decision in that case was therefore that the writ of habeas corpus had been applied for in a criminal matter, that a decision had been given by the High Court, and that the Court of Appeal had no power to entertain such an appeal. In the present case the application for the writ of habeas corpus is clearly in respect of a criminal matter.

Now the right of appeal in Uganda does not depend on the English Judicature Act of 1873 but on its own Orangences. This is provided for by section 2 of the Eastern African Court of Appeal Order in Council, 1921, which reads as follows: " A Court shall be and is hereby constituted called His Majesty's Court of Appeal for Eastern Africa (in this Order referred to as the Court of Appeal ') which shall be a Superior Court of Record and shall, subject to the provisions of this Order, have jurisdiction to hear and determine appeals (including reserved questions of law) from the Courts of the said Territories in all causes and matters in which under any law for the time being in force in any of the said Territories respectively an appeal lies to the Court of Appeal." By the Criminal Procedure Code Ordinance, No. 8 of 1930, section 332, it is provided that " any person convicted on a trial held by the High Court may appeal to His Majesty's. Court of Appeal for Eastern Africa (a) against his conviction on any ground of appeal which involves a question of law alone; and (b) with the leave of such Court of Appeal, or upon the certificate of the judge who tried him that it is a fit case for appeal, on any ground of appeal which involves a question of fact alone, or a question of mixed law and fact, or any other ground which appears to the Court to be a sufficient ground of appeal; and (c) with the leave of such Court of Appeal against the sentence passed on conviction unless such sentence is one fixed by Those are the only rights of appeal from the law." High Court of Uganda in criminal matters. Therefore, $a\dot{s}$ in England in respect of the Judicature Act, 1873, there is no right to appeal in Uganda from a refusal of the High Court to grant a writ of habeas corpus in respect of a criminal matter.

It has been argued by Mr. Johnson Davies, that in this case the High Court of Uganda did not refuse to grant a writ of habeas corpus but held that it had no power to do so. But he has not shown this Court that there is any right to appeal from such a finding any more than from a refusal to grant. No right of appeal has been given in such a case and therefore this Court is not empowered to entertain any such appeal.

At the close of the argument Mr. Johnson Davies asked for leave to appeal from the Order of this Court to His Majesty's Privy Council. He was informed that this Court has no power to grant that application but that he must apply for leave to His Majesty's Privy Council.

The Order of this Court is that this Court is not empowered to hear the appeal of Yusufu Semukasa Bamuta from the Order of the Chief Justice of Uganda made on the 28th day of August, 1931, and that the said appeal must stand dismissed accordingly.