Komakech & Anor v Akol & 2 Ors [2012] UGSC 10

Supreme Court · 2012 Appeal Allowed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Civil appeal to the Supreme Court from a Court of Appeal ruling and order as to costs

Decision

Appeal allowed; the Court of Appeal's order as to costs held a nullity and the motion remitted to the Court of Appeal for rehearing before a proper coram.

The full judgment

Read the complete, verbatim text of this judgment.

Cited — treatment unverified cited in 2 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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

Advocates condemned by the Court of Appeal to pay costs personally for negligently handling an election-petition appeal challenged that order. The Supreme Court overruled a preliminary objection, holding the appeal competent under s.6(1) of the Judicature Act because ordering High Court costs partially reversed the High Court's decision. It held the Court of Appeal's ruling on costs a nullity for want of coram: only two of three justices sat after Lady Justice Byamugisha declined to sign or give written dissenting reasons as Rule 33(6) requires. The Court of Appeal also wrongly ordered High Court costs where no complaint touched the conduct of that petition. Appeal allowed; the motion remitted for rehearing before a proper coram; no order as to costs.

Facts

Among Annet Anita filed an election petition in the High Court at Soroti against Rose Akol Okullo and the Electoral Commission. The High Court dismissed the petition and awarded costs against her. She instructed Komakech Geoffrey of Victoria Advocates & Legal Consultants to appeal. The Notice of Appeal and appeal were mishandled in filing and service, and the first and second respondents successfully moved the Court of Appeal to strike them out for non-compliance with the rules. Two of the three justices, attributing the failures to the advocates' professional negligence, ordered the advocates to pay the costs of the application, the appeal and the High Court petition. The third justice, Lady Justice Byamugisha, agreed the appeal be struck out but disagreed on costs; she neither signed the ruling nor gave written dissenting reasons, and did not sit at the subsequent hearing on costs, which proceeded before only two justices. The advocates appealed against the whole order.

Issues

Whether the appeal against the Court of Appeal's order as to costs was competent under section 6(1) of the Judicature Act.
Whether the Court of Appeal's ruling and order on costs, made by only two justices, was a nullity for lack of coram.
Whether a dissenting justice in a civil matter must give written reasons under Rule 33 of the Court of Appeal Rules.
Whether the Court of Appeal could order the appellants to pay the costs of the High Court petition absent any complaint about their conduct of that petition.

Orders

Appeal allowed.
The Court of Appeal's ruling and order as to costs is a nullity for want of coram.
The motion to strike out the appeal is to be heard by the Court of Appeal before a proper coram.
No order as to costs of the appeal.

Key headnotes

Civil Procedure — Appeals — Competence — Right of Appeal under s.6(1) Judicature Act

An order of the Court of Appeal striking out an appeal that also orders payment of costs incurred in the High Court partially reverses the decision of the High Court and is therefore appealable under section 6(1) of the Judicature Act.

Constitutional Law — Composition of the Court of Appeal — Coram — Article 135(1)

Under Article 135(1) of the Constitution and section 12 of the Judicature Act, the Court of Appeal is duly constituted only when it sits with an uneven number of not fewer than three justices; a hearing and decision conducted by two justices lacks coram and is a nullity.

Civil Procedure — Court of Appeal Rules — Dissenting Judgment — Requirement of Written Reasons

Under Rule 33(5) and (6) of the Court of Appeal Rules, in civil matters separate judgments or rulings must be given and a dissenting justice must give written reasons; in the absence of those written reasons the ruling of the Court cannot stand.

Statutory Interpretation — 'Shall' — Mandatory v Directory

The word 'shall' in Rule 33 of the Court of Appeal Rules is mandatory and not directory, so the procedure it prescribes for the giving of judgments and dissenting reasons must be followed.

Civil Procedure — Costs — Personal Liability of Advocates — s.27(1) Civil Procedure Act

A court cannot order an advocate to pay the costs of proceedings where there was no complaint or finding of negligence regarding the conduct of those proceedings, and the discretion as to costs under section 27(1) of the Civil Procedure Act does not protect such an order.

Legislation cited (8)

Judicature Act s.6(1)
Judicature Act s.12
Civil Procedure Act s.27(1)
Constitution of Uganda Article 132(2) and (3)
Constitution of Uganda Article 135(1)
Court of Appeal Rules r.2(2)
Court of Appeal Rules r.6(3)
Court of Appeal Rules r.33(5) and (6)

Cases cited (2)

Uganda National Examinations Board v Mparo General Construction Ltd (Supreme Court Miscellaneous Application No. 19 of 2004)
Myers v Elman [1939] 4 All ER 484

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.