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KOMAKECH GEOFFREY AND ANOTHER VERSUS ROSE AKOL OKULLO AND 2 OTHERS SUPREME COURT (CORAM: ODOKI, TSEKOOKO, KATUREEBE, TUMWESIGYE, AND KISAAKYE)

CIVIL APPEAL NO. 21 OF 2010

DECEMBER 21ST 2012

(An Appeal from the ruling of the Court of Appeal at Kampala in Election Petition Application No. 35 of 2007)

Civil Procedure: ------Applications------Applications to be limited to the respective motions and not to affect the appeal----What was the consequence of an application making a ruling on a formal decision?

Judgments: --------Dissenting judgment-----A dissenting judge to give reasons for his or her decision-------Coram of court of appeal-----powers of a single justice of appeal-----Was a decision made without Coram valid?

Judgment writing: -------Procedure for writing judgments and rulings in Court of Appeal ---------What was the difference in writing a judgment in civil matters and in criminal cases------------ Separate judgments where the decision was not unanimous--------- the dissenting judge did not have to sign the judgment.

Professional Negligence--------Whether the appellants had been negligent?

Background:                             

The 3rd respondent instituted in the High Court, at Soroti, an election petition against the 1st Respondent, and the Electoral Commission, the 2nd Respondent.  The High Court dismissed the petition and awarded costs against the petitioner, the 3rd Respondent.  She instructed first the appellant, an advocate in the firm of Victoria Advocates and Legal Consultants, hereinafter referred to respectively, as the 1st and 2nd appellants to appeal against the decision of the High Court.  Comments in the ruling of the Court of Appeal indicated that there was   a mess in the process of filing or attempting to institute the Notice of Appeal and/or the appeal itself and effecting service of the same on the respondents in that intended appeal.  As a result, the 1st and 2nd Respondents successfully moved the Court of Appeal (by Notice of Motion) to strike out both the Notice of Appeal and the Appeal itself for failure to comply with relevant rules governing the institution of such appeals and the serving of relevant records such as the Notice of Appeal, and the Record of Appeal on the respondents to the appeal.

Two of the learned Justices of the Court of Appeal considered that all this happened due to professional negligence on the part of the two appellants, and the Court ordered the appellants to pay the costs both in the Court of Appeal in respect of the appeal itself and the application to strike out that appeal and the costs of the petition.  

The appellants appealed against the whole order. Counsel for the 3rd respondent raised a preliminary objection as to the competence of the appeal, he submitted that the order of the Court of Appeal of striking out the Notice of Appeal and the Appeal and ordering the appellants to pay costs was only interlocutory and merely incidental to the intended appeal but it did not involve the Court of Appeal confirming, varying or reversing the decision of the High Court and he relied on S.6 (1) of the Judicature Act.

Counsel for the appellants challenged the objection and contended that the objection was wrong and the appellants had the right to appeal. The record of appeal showed that one member of the panel although she had agreed with the other two on the striking out of the appeal, disagreed on the order to pay costs and she therefore refused to sign the joint ruling of the court.

The following were the grounds of appeal:

1. That the learned Justices of Appeal erred in fact and law in holding that both appellants were grossly negligent in handling the first respondent’s appeal and the application to strike out the appeal and should therefore pay the costs of the Appeal, Application and Petition in the High Court.

2. That the learned Justices of Appeal erred in law in as much as they did not apply the principles relating to payments of costs personally by an advocate and thereby occasioned a miscarriage of justice. 

3. The learned Justices of Appeal erred when they made a judicial decision without quorum and therefore occasioned a miscarriage of justice.

4. The learned Justices of Appeal erred in law in making the orders without affording the second appellant an opportunity to be heard and as such occasioned a failure of justice.

Counsel for the appellants argued that the Justices of Appeal erred when they ordered the appellants to pay costs of the proceedings in the High Court in the absence of any complaint from the 3rd respondent in respect of the conduct of the Petition in the High Court.

HELD:

1.    An application like the one which had been before the Court of Appeal, payment of costs should have been limited to the hearing and decision of only the motion but not the appeal because the appeal itself was never heard. Therefore, ordering the appellants to pay costs in respect of the proceedings of the High Court, Court of Appeal partially reversed the decision of the High Court. Payment of costs had not been subject of the motion before the Court of Appeal.

2.     The dissenting Justice should have written her own reasons for dissenting and she had not done that, because the record of appeal did not reflect it anywhere. On the subsequent occasion when the court heard the appellants about whether they should pay the costs, the dissenting justice did not participate in the hearing itself and the ruling in costs, the hearing was thus before and was made by only two Justices of Appeal instead of three. The two Justices acted irregularly when they heard the issue of costs without Coram. The third Justice wrongly refused to sign the main ruling and later to participate in hearing parties on costs. Article 135(1) of the constitution was to the effect that the Court of Appeal would be duly constituted if the sitting consisted of uneven number not being less than three members of the court. While Section 12 of the Judicature Act was to the effect that a single justice had power to hear interlocutory matters but for the court to hear cases, there had to be three Justices. Therefore neither the Constitution nor the Judicature Act allowed two Justices to hear a case including an application. The disagreement as to who should pay costs and the refusal of a member of the panel to sign the ruling affected the whole decision. The order to pay costs was incompetent.

Rule 33 of the Court of Appeal Rules provided good guidance in that it described how judgments/ rulings and orders of the Court of Appeal were to be written and delivered. That in Civil Appeals, separate judgments shall be given by the members of the Court unless the decision being unanimous, the presiding judge otherwise directs while in criminal appeals, the Court was required to give one judgment and a dissenting judge would not be required to sign the judgment.  That was not the case in civil matters. 

3.  The third respondent only criticized the appellants and the way they had handled the appeal and not how they had prosecuted the petition in the High Court, therefore the Justices of Appeal had no jurisdiction for ordering the appellants to pay costs in the High Court. The appellants had been negligent because although the process server had not served in time, the appellants had not done anything to correct it. Although the appellants had been negligent, the court could not confirm the decision of the Court of Appeal.

Appeal succeeded because the Notice of motion had been heard without Coram and no order was made as to the costs and it was ordered that the motion be heard by the court of appeal before a proper Coram.

Legislation cited and referred to in judgment

Civil Procedure Act, Cap 71, Laws of Uganda Section 27(1)

The Constitution of the Republic of Uganda, 1995 Articles 132(2) (3), 135(1)

Judicature Act, Cap 13, Laws of Uganda Sections 6(1) & 12

Judicature (Court of Appeal Rules) Directions S.I. 13-10 Rules 2(2), 33(5) (6), & 33(5) (6)

Cases cited and referred to in Judgment

Myers Versus Elman, (1939) 4 ALLER. 484;

Uganda National Examinations Board Versus Mparo General Construction Ltd. (Sup. Ct Misc. Application No. 19 of 2004);

Mr. Kiyemba Mutale for the appellants

Messr. Kyazze & Co. Advocates for the third respondent

Messr. Ssekaana Associated Advocates & Consultants for the 1st and 2nd respondents

 A.G

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