Wakilii

Orient Bank Limited v Zaabwe and Another (Civil Application 17 of 2007)

Supreme Court · [2008] UGSC 1 · 2008 Application Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application to the Supreme Court to recall, set aside or correct its own final judgment under the slip rule and inherent powers
Decision
Application to recall, set aside or correct the judgment dismissed with costs; the original judgment stands

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Holding

The Supreme Court dismissed the applicant's attempt to recall its final judgment. It held that a judgment of five Justices is not invalidated merely because a Justice retired or died before delivery, provided he wrote and signed it while a member of the Court; rule 32(8) of the Judicature (Supreme Court) Rules covers delivery by another judge in such circumstances, and the Indian authorities to the contrary were not persuasive under Ugandan law. The alleged falsehoods were neither proved to be fraudulent nor the basis of the judgment, so the fraud ground failed. The slip rule cannot be used to re-argue findings of fact or law a party considers erroneous; as the final court of appeal, the Court will not sit on appeal against itself.

Facts

The applicant bank sought to recall the Supreme Court's judgment of 10 July 2007 in Civil Appeal No. 4 of 2006, which had held the bank and Mars Trading Limited jointly liable for fraud against Fredrick Zaabwe. In that appeal the Court found that Mars Trading, using a power of attorney over Zaabwe's property obtained on a false undertaking to borrow money for him, had instead mortgaged the property to the bank to secure its own overdraft; the bank had constructive notice of the fraud, and the mortgage was also invalid for non-compliance with the Registration of Titles Act. The five-Justice panel heard the appeal on 6 December 2006, but by the date the separate judgments were delivered, 10 July 2007, Justice Karokora had retired. The bank applied to set aside the judgment as invalid and as obtained by fraud, and alternatively to correct it under the slip rule to exonerate the bank and reclassify the damages.

Issues

  1. Whether the Supreme Court's judgment was null and void because, by the date of its delivery, one of the five Justices who heard and decided the appeal had retired from service.
  2. Whether the judgment should be set aside under the Court's inherent power on the ground that it was obtained by fraud through the first respondent's allegedly false testimony.
  3. Whether the judgment could be corrected or altered under the slip rule so as to exonerate the applicant from liability and substitute general damages for aggravated damages.

Orders

  • The application is dismissed.
  • Costs of the application awarded to the first respondent.

Key headnotes

Final Court of Appeal — Validity of Judgment — Delivery after Retirement or Death of a Participating Justice
A judgment of the Supreme Court decided by a Coram of five Justices is not rendered null and void merely because, by the date of its delivery, one of the participating Justices has retired or died, provided that the Justice wrote and signed the judgment while still a member of the Court; rule 32(8) of the Judicature (Supreme Court) Rules permits delivery of such a reserved judgment by another judge.
Judgments — Date of Effect — Reserved Judgments
A judgment takes effect from the day it is pronounced and is dated accordingly, but the requirement that it be in writing and signed serves to authenticate and validate it as the decision of the judge; once so signed by a sitting judge, its validity is preserved up to delivery even where the judge is no longer in a position to alter it.
Finality of Decisions — Inherent Power to Set Aside Judgment Obtained by Fraud
The Supreme Court may, under its inherent power, set aside its own judgment obtained by fraud, but only where the fraud is strictly proved, the judgment is shown to have been based on that fraud, and the order is necessary to achieve the ends of justice or prevent abuse of process.
Slip Rule — Scope — Limits on Recall of Judgment
The slip rule under rule 35(1) permits correction only of a clerical, arithmetical or accidental error so as to give effect to the Court's intention at the time of judgment; it cannot be invoked to reverse considered findings of fact or law that a dissatisfied party contends are erroneous, which would amount to the final court sitting on appeal against itself.
Supreme Court — Power to Depart from Previous Decision — Article 132(4)
Article 132(4) of the Constitution, which permits the Supreme Court to depart from its previous decisions, frees it from the doctrine of stare decisis in later cases but does not empower it to overturn or reverse its own decision in the same proceedings.

Legislation cited (13)

  • Judicature (Supreme Court) Rules (S.I. 13-11) r.2(2)
  • Judicature (Supreme Court) Rules (S.I. 13-11) r.35(1)
  • Judicature (Supreme Court) Rules (S.I. 13-11) r.32
  • Judicature (Supreme Court) Rules (S.I. 13-11) r.29(1)
  • Constitution of Uganda Article 126(2)(e)
  • Constitution of Uganda Article 131(1)
  • Constitution of Uganda Article 132(4)
  • Constitution of Uganda Article 144(1)
  • Judicature Act s.7
  • Judicature Act s.39(2)
  • Registration of Titles Act s.115
  • Registration of Titles Act s.147
  • Registration of Titles Act s.148

Cases cited (8)

  • Lakhamshi Brothers Ltd v R. Raja and Sons (1966) E.A. 313
  • the Raniga case (1965) EA at p.703
  • Livingstone Sewanyana v Martin Aliker (Civil Application No. 4 of 1991)
  • NPART v General Parts (U) Ltd (Miscellaneous Application No. 8 of 2000)
  • General Parts (U) Ltd v NPART (Civil Appeal No. 5 of 1999)
  • Surendra Singh v State of Uttar Pradesh (1954) AIR 194
  • Mohamed Akil vs. Asadunnissa Bibee (9 WR 1FB)
  • Hip Foong Hong v H. Neotia & Co (1918) AC 888
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.