Wakilii

Goodman Agencies Ltd v Attorney General & Anor (Constitutional Application 1 of 2012)

Supreme Court · [2014] UGSC 14 · 2014 Application Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application by notice of motion in the Supreme Court to strike out a pending constitutional appeal and a notice of cross-appeal for failure to deposit ordered security for costs
Decision
Application allowed in part: the second respondent's Constitutional Appeal No. 5 of 2010 struck out, while the Attorney-General's cross-appeal survives and is to be heard on its merits

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Treatment recorded in citing cases distinguished in 1 Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

By majority, the Court held that the Judicature (Supreme Court) Rules govern constitutional appeals; Article 132(3) confers a right of appeal but does not exempt a constitutional appellant from the requirement to deposit security for costs. The second respondent's failure to deposit the Shs.200,000,000 ordered as further security was failure to take an essential step under Rule 78, so its appeal was struck out. The Attorney General's notice of cross-appeal does not require a memorandum of appeal and survives the striking out. A certificate for two counsel was refused. Kisaakye JSC dissented in part, holding that Rule 101(3) conflicts with Article 132(3) and that the constitutional appeal should be heard on its merits.

Facts

The applicant and the second respondent, with others, sued the Attorney General in High Court Civil Suit No. 719 of 1997 to recover damages for ten lost trucks. The second respondent was struck out of the suit. The applicant and the Attorney General settled by a consent judgment dated 2 September 2005 for Shs.14,485,543,842, with no interest provided. Days later the High Court added the second respondent to the consent judgment as a judgment-creditor. The applicant successfully petitioned the Constitutional Court, which held the High Court erred in adding the second respondent and awarded the applicant interest at 24% per annum. The second respondent appealed to the Supreme Court (Constitutional Appeal No. 5 of 2010). The applicant sought further security for costs; on a reference, a panel ordered the second respondent to deposit Shs.200,000,000 within forty-five days. Pleading financial difficulty, the second respondent deposited nothing. The applicant then applied to strike out the appeal and the Attorney General's cross-appeal.

Issues

  1. Whether the Judicature (Supreme Court) Rules, including the requirement to deposit security for costs, apply to a constitutional appeal brought under Article 132(3) of the Constitution.
  2. Whether the word 'entitled' in Article 132(3) exempts a constitutional appellant from the procedural conditions, including further security for costs, applicable to other appellants.
  3. Whether the second respondent's failure to deposit the further security for costs ordered by the Court was a failure to take an essential step warranting striking out the appeal.
  4. Whether the Attorney General's notice of cross-appeal survives the striking out of the main appeal.

Orders

  • The application is allowed and Constitutional Appeal No. 5 of 2010 is struck out.
  • The Attorney-General's notice of cross-appeal remains unaffected and stands.
  • The application for a certificate for two counsel is refused.
  • The applicant is to be paid costs in respect of only one counsel.

Key headnotes

Civil Procedure — Security for Costs — Application of Supreme Court Rules to Constitutional Appeals
The Judicature (Supreme Court) Rules apply to the filing, procedure and hearing of constitutional appeals, and Article 132(3) of the Constitution does not exempt a constitutional appellant from the requirement to provide security for costs.
Constitutional Law — Right of Appeal — Article 132(3) — Meaning of 'Entitled'
The word 'entitled' in Article 132(3) confers no special privilege exempting a constitutional appellant from procedural conditions such as fees, costs and security for costs; the clause merely emphasises that an aggrieved party may appeal to the Supreme Court under Article 132(2).
Civil Procedure — Striking Out Appeal — Failure to Deposit Further Security for Costs
Failure to deposit further security for costs as ordered by the Court is failure to take an essential step in the proceedings and justifies striking out the appeal under Rule 78 of the Judicature (Supreme Court) Rules.
Civil Procedure — Cross-Appeal — Survival on Striking Out of the Main Appeal
A notice of cross-appeal need not be accompanied by a memorandum of appeal and survives the striking out of the main appeal; under Rule 91(2) a cross-appeal may be heard as if it were an appeal.
Civil Procedure — Costs — Certificate for Two Counsel
A certificate for two counsel will be granted only where the circumstances of the matter justify it.

Legislation cited (27)

  • Constitution of Uganda 1995 art.132(2)
  • Constitution of Uganda 1995 art.132(3)
  • Constitution of Uganda 1995 art.132(4)
  • Constitution of Uganda 1995 art.129(3)
  • Constitution of Uganda 1995 art.137
  • Constitution of Uganda 1995 art.137(5)(a)
  • Constitution of Uganda 1995 art.137(7)
  • Constitution of Uganda 1995 art.126
  • Constitution of Uganda 1995 art.28(1)
  • Constitution of Uganda 1995 art.44
  • Constitution of Uganda 1995 art.21(1)
  • Constitution of Uganda 1995 art.2
  • Constitution of Uganda 1995 art.274
  • Judicature Act s.40
  • Judicature Act s.41
  • Judicature (Supreme Court) Rules r.78
  • Judicature (Supreme Court) Rules r.87
  • Judicature (Supreme Court) Rules r.91
  • Judicature (Supreme Court) Rules r.101(1)
  • Judicature (Supreme Court) Rules r.101(3)
  • Judicature (Supreme Court) Rules r.109(1)
  • Judicature (Supreme Court) Rules r.79(4)
  • Judicature (Supreme Court) Rules r.79(5)
  • Judicature (Supreme Court) Rules r.2(2)
  • Judicature (Supreme Court) Rules r.2(3)
  • Constitutional Court (Petitions and References) Rules 2005 r.23(2)
  • Companies Act s.404

Cases cited (9)

  • Goyal v Goyal and Others (Civil Application No. 109 of 2008)
  • G.M. Combined (U) Ltd v A.K. Detergents (U) Ltd (Civil Appeal No. 34 of 1995)
  • Musonge Moses Masah v Muwonge Peter (Civil Appeal No. 11 of 2004)
  • Uganda Association of Women Lawyers v Attorney General (Constitutional Petition No. 2 of 2003)
  • Olive Casey Jaundo vs. Attorney-General of Guyana (1971) AC972
  • Mawogola Farmers and Growers Ltd v. Kayanja and others, (1971) E.A. 108
  • Banco Arabe Espanol v Bank of Uganda (Civil Appeal No. 876 of 1998)
  • Hon. Theodore Ssekikubo and Others v Attorney General and Others (Constitutional Application No. 6 of 2013)
  • Margaret Kato v Nulu Nalwoga (Civil Miscellaneous Application No. 11 of 2011)
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.