Wakilii

Dr Kizza Besigye and Ors v Attorney General (Constitutional Application No. 7 of 2005)

Constitutional Court · [2006] UGCC 1 · 2006 Application Struck Out ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Interlocutory application in the Constitutional Court seeking to disqualify a member of the coram from hearing a consolidated constitutional petition, met by a preliminary objection challenging the application's competence.
Decision
Formal application struck out for being wrongly before the court.

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AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

The Constitutional Court held that filing a formal application to the four remaining members of a coram, asking them to order their colleague not to sit on grounds of bias, is fundamentally wrong procedure. The remaining members have no jurisdiction to try their colleague on his integrity; the decision whether to disqualify himself is the sole discretion of the impugned judge, and any objection must be raised informally before that judge. Following Uganda Polybags Ltd v Development Finance Co Ltd, the court struck out the application as wrongly before it, rendering the respondent's preliminary objections irrelevant. It further observed that, the parties having agreed to consolidation at the scheduling conference, the respondent was estopped from arguing the amended petition was incompetent for unpaid fees.

Facts

At a scheduling conference on 15 December 2005 for Constitutional Petition No. 16 of 2005 (consolidated with Petition No. 17 of 2005), counsel for the petitioners notified the court of his intention to object to Justice S.B.K Kavuma sitting on the coram, alleging bias or likelihood of bias. On 20 December 2005 the applicants filed a formal application by Notice of Motion under section 98 of the Civil Procedure Act, supported by an affidavit of advocate Caleb Alaka, seeking an order that Justice Kavuma not sit on the coram. When the application was called for hearing, the respondent raised a preliminary objection that there was no competent petition to support it and that the supporting affidavit was fatally defective. The court reserved its ruling on the objection.

Issues

  1. Whether a formal application to the remaining members of a coram is the proper procedure for objecting to one member sitting on the ground of bias or likelihood of bias.
  2. Whether the remaining members of a coram have jurisdiction to determine whether their impugned colleague should disqualify himself.
  3. Whether the respondent, having agreed to the consolidation of the petitions and the issues at the scheduling conference, can later contend that the amended petition is incompetent for non-payment of fresh fees.

Orders

  • The formal application is struck down for being wrongly before the court.

Key headnotes

Civil Procedure — Disqualification of a Judge — Proper Procedure for a Recusal Objection
An objection that a member of a coram should not sit on the ground of bias or likelihood of bias must be raised informally and is to be decided solely by the impugned judge; raising it by formal application to the remaining members of the coram is fundamentally wrong procedure.
Civil Procedure — Disqualification of a Judge — Jurisdiction of the Coram
The other members of a coram have no jurisdiction to determine whether their colleague should disqualify himself, because doing so would amount to trying him in respect of his integrity.
Civil Procedure — Estoppel — Consolidation of Petitions and Payment of Fees
A party who agrees at a scheduling conference to the consolidation of petitions and to the issues arising from the amended petition is estopped from later contending that the amended petition is incompetent for want of fresh fees.

Legislation cited (1)

  • Civil Procedure Act s.98

Cases cited (2)

  • Uganda Polybags Ltd v Development Finance Co Ltd and 3 Others (Miscellaneous Application No. 2 of 2003)
  • Attorney General v Major General David Tinyefuza (Constitutional Appeal No. 1 of 1997)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.