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Sophatia & 3 Others v Nangobi & 2 Others (Civil Application 42 of 2019)

Supreme Court · [2020] UGSC 17 · 2020 Application Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application to recall and set aside a Supreme Court judgment for want of a properly constituted coram
Decision
Application granted; impugned judgment recalled and set aside; Civil Appeal No. 06 of 2018 remitted for re-hearing before a different panel

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Holding

The Court held that where a Justice who did not participate in hearing an appeal nonetheless wrote and delivered a judgment in it, the resulting decision is a nullity because it infringes the non-derogable right to a fair hearing under Article 28(1) of the Constitution. Both parties conceded the coram anomaly. Exercising its inherent power under Rule 2(2) of the Supreme Court Rules to set aside judgments proved null and void, the Court recalled and set aside its judgment in Civil Appeal No. 06 of 2018 and ordered the appeal to be placed before a differently constituted panel for re-hearing, with each party bearing its own costs.

Facts

The application arose from a dispute over land at Magamaga Trading Centre in Mayuge District. In 2000 the 1st applicant bequeathed the land to the respondents (his daughters), who constructed buildings on it. In 2005 the 1st, 2nd and 3rd applicants sold the land to the 4th applicant, who evicted the respondents. The respondents successfully challenged the sale at the Magistrate's Court at Iganga; the applicants' appeal to the Jinja High Court succeeded; the respondents' appeal to the Court of Appeal succeeded; and the applicants' further appeal to the Supreme Court (Civil Appeal No. 06 of 2018) was unsuccessful. On perusing the Supreme Court judgment, the applicants discovered that Justice Tibatemwa-Ekirikubinza had written and delivered a judgment although she had not sat on the coram that heard the appeal on 20 September 2018, the actual coram having included Justice Mugamba. The audio recording confirmed the last-minute change of coram was inadvertently not recorded. The respondents conceded the anomaly.

Issues

  1. Whether the Supreme Court's judgment in Civil Appeal No. 06 of 2018 should be recalled and set aside on the ground that it was delivered by an improperly constituted coram.
  2. Whether a judgment written and signed by a Justice who did not participate in the hearing of the appeal is a nullity for breaching the right to a fair hearing under Article 28(1) of the Constitution.

Orders

  • The Judgment in Civil Appeal No. 06 of 2018 delivered on 10 December 2019 is hereby recalled and set aside.
  • Civil Appeal No. 06 of 2018 be placed before a different panel for re-hearing as soon as possible.
  • Parties are to bear their own costs given that the error arose extraneously.

Key headnotes

Constitutional Law — Right to a Fair Hearing — Judgment by a Justice not on the hearing coram
A judgment written, delivered or signed by a judicial officer who did not personally participate in the hearing of the matter is a nullity, as the appearance of a stranger to the hearing in the decision of the court infringes the non-derogable right to a fair hearing before an independent and impartial court under Article 28(1) of the Constitution.
Civil Procedure — Setting Aside Judgments — Inherent power of the court under Rule 2(2) of the Supreme Court Rules
The Supreme Court retains an inherent power under Rule 2(2) of the Supreme Court Rules to set aside its own judgments that have been proved null and void after they were passed, where necessary to achieve the ends of justice or to prevent an abuse of the process of the court.
Civil Procedure — Finality of Supreme Court Decisions — Limited exceptions to revisit a decision
A decision of the Supreme Court on any issue of fact or law is final and an unsuccessful party cannot apply for its reversal; the Court may revisit its decision only under Rule 2(2), to set aside a judgment proved null and void, or under Rule 35(1), to correct an error arising from an accidental slip or omission.

Legislation cited (7)

  • Civil Procedure Act s.82
  • Civil Procedure Act s.98
  • Supreme Court Rules r.2(2)
  • Supreme Court Rules r.42
  • Supreme Court Rules r.35(1)
  • Constitution of Uganda 1995 art.28(1)
  • Constitution of Uganda 1995 art.131

Cases cited (3)

  • Orient Bank Limited v Fredrick Zaabwe and Another (Civil Application No. 17 of 2007)
  • Bakaluba Peter Mukasa v Nambooze Betty Bakireke (Election Petition No. 4 of 2009)
  • Mohammed Mohammed Hamid v Roko Construction (Civil Appeal No. 1 of 2013)
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.