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Mohammed v Roko Construction Ltd [2014] UGSC 2

Supreme Court · 2014 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second appeal to the Supreme Court from a ruling of the Court of Appeal
Decision
Appeal allowed; Court of Appeal orders set aside and matter remitted to the Court of Appeal for rehearing before a differently constituted coram

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Holding

On a second appeal, the Supreme Court considered whether the Court of Appeal denied the appellant a fair hearing. It held that the Court of Appeal breached natural justice and rule 33(10) of its Rules because Justice Nshimye, who never participated in hearing the appeal, formed part of the panel that signed the ruling, while the justice who presided over the hearing did not sign. It further held that the Court of Appeal contravened the mandatory rule 102(c) by deciding the appeal on a ground of illegality not set out in the memorandum without affording the parties an opportunity to be heard. The appeal was allowed, the Court of Appeal's orders set aside, and the matter remitted for rehearing by a differently constituted coram.

Facts

The appellant engaged the respondent to construct a residential house at Kololo, Kampala, for an agreed sum, with completion due by 28 February 2006. The respondent contended a standard building agreement and a Bill of Quantities were executed; the appellant admitted signing the Bill of Quantities but denied signing the main agreement. The appellant defaulted in payments, and after a notice and resumption, the respondent terminated the contract on 16 July 2007 and referred the dispute to arbitration. After the appellant did not respond to proposals, CADER compulsorily appointed an arbitrator under section 11(4)(c) of the Arbitration and Conciliation Act. The arbitrator ordered the appellant to pay the respondent for work done plus general damages with interest. The High Court (Commercial Division) set aside the award, finding the parties had excluded the arbitration clause so the arbitrator lacked jurisdiction. The Court of Appeal reversed that decision. The ruling delivered on 20 September 2012 was signed by Justice Nshimye, who had not participated in the hearing on 15 May 2012, while the presiding Deputy Chief Justice who heard it did not sign.

Issues

  1. Whether the appellant was denied a fair hearing by the Court of Appeal.
  2. Whether the Court of Appeal's ruling was vitiated because a justice who did not participate in the hearing formed part of the panel that decided and signed it.
  3. Whether the Court of Appeal could decide the appeal on a ground of illegality not raised in the memorandum without first hearing the parties on it.

Orders

  • Grounds one and three of the appeal succeed.
  • The appeal is allowed.
  • The orders of the Court of Appeal are set aside.
  • The matter is returned to the Court of Appeal to constitute a suitable different coram to hear and decide the appeal in accordance with the established procedures.
  • Each party to bear their own costs.

Key headnotes

Court of Appeal — Coram — Decision and Signing of Judgment by a Justice Who Did Not Hear the Appeal
Under rule 33(10) of the Rules of the Court of Appeal, a judge who did not participate in the hearing may deliver a judgment or ruling, but only the justices who actually heard the matter may decide, write and sign it; the panel that hears an appeal must be the same panel that decides and signs the judgment.
Fair Hearing — Natural Justice — Right to Know Who Decides One's Case under Article 28(1)
It is contrary to natural justice and the right to a fair hearing under Article 28(1) of the Constitution for a person who was a stranger to the hearing to decide and sign a judgment or ruling, because parties are entitled to know who is to hear and decide their case so as to raise any objection.
Appeals — Illegality Not Pleaded — Mandatory Duty to Hear the Parties under Rule 102(c)
An appellate court may not allow an appeal on a ground of illegality not set forth or implicit in the memorandum of appeal without first affording the parties an opportunity of being heard on that ground; the requirement in rule 102(c) of the Rules of the Court of Appeal is mandatory.

Legislation cited (7)

  • Arbitration and Conciliation Act s.11(4)(c)
  • Arbitration and Conciliation Act, First Schedule rule 13
  • Constitution of Uganda art.28(1)
  • Constitution of Uganda art.135
  • Rules of the Court of Appeal rule 33
  • Rules of the Court of Appeal rule 33(10)
  • Rules of the Court of Appeal rule 102(c)

Cases cited (6)

  • Makula International Ltd v H.E. Cardinal Nsubuga & Another (Civil Appeal No. 4 of 1981)
  • Komakech Geoffrey & Another v Rose Akol Okullo & 2 Others (Civil Appeal No. 21 of 2010)
  • Re Election For Stann Greek West Electrical Divisions (1991) 1 LRC (Const.) 119
  • Kamurasi vs. Accord Properties (2000) 1 EA9
  • In Re Pinochet Urgate II (1999) I ALLER 577
  • H. Singh vs. S. S. Dhiman (1951) 18 EALA 75
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.