Lubega v Ssinabulya & 2 Ors (Civil Appeal 4 of 2019)

Supreme Court · [2020] UGSC 34 · 2020 Appeal Allowed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Second civil appeal from the Court of Appeal

Decision

Court of Appeal judgment set aside as a nullity; appeal remitted to be reheard before a properly constituted coram

The full judgment

Read the complete, verbatim text of this judgment.

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

The Supreme Court held that the Court of Appeal judgment in Civil Appeal No. 18 of 2012 was a nullity. Although the appeal was heard by a full coram of three Justices, the judgment was produced and signed by only two of them after the third Justice retired before the judgment was ready, without writing or signing his own judgment or a dissent. Two Justices acting alone could not form a majority. The defect violated Article 135(1) of the Constitution, section 12 of the Judicature Act and Rule 33(5) of the Court of Appeal Rules, went to the root of the case, and was not a mere technicality curable under Article 126(2)(e). The judgment was set aside and the appeal ordered to be reheard before a proper coram.

Facts

The dispute concerned mailo land at Buye, Ntinda, Kampala, formerly registered to the late Yozefu Bukenya, who died intestate and childless in 2007. His widow, Petolalina Nabulya, was appointed administrator and registered as proprietor, then died testate; the respondents, as executors of her will, obtained probate and registered themselves as proprietors. The appellant, claiming to be a relative and asserting the deceased's customary lineage, resisted their occupation, entered the land and collected rent. The respondents sued for eviction, a permanent injunction, and damages; the appellant counterclaimed for cancellation of registration on grounds of fraud. The High Court dismissed the suit and entered judgment on the counterclaim for the appellant. On appeal, the Court of Appeal dismissed the appellant's cross-appeal and set aside the trial court's judgment, substituting its own judgment dated 8 May 2019. That Court of Appeal judgment was signed by only two of the three Justices who had heard the appeal; the third, Justice Remmy Kasule, had retired before the final draft was ready and neither signed the judgment nor wrote a dissent. The appellant appealed to the Supreme Court.

Issues

Whether there was a valid Court of Appeal judgment in Civil Appeal No. 18 of 2012 where the judgment was signed by only two of the three Justices who heard the appeal, the third having retired before the judgment was ready.
Whether the failure of the third Justice to sign or write a dissenting judgment rendered the Court of Appeal judgment a nullity for want of coram, or was a mere technicality curable under Article 126(2)(e) of the Constitution.

Orders

Appeal allowed.
The Judgment of the Court of Appeal in Civil Appeal No. 18 of 2012 is set aside.
The appeal should be heard afresh before a proper coram.
No orders are made as to costs.

Key headnotes

Civil Procedure — Coram of an Appellate Court — Participation at Every Stage from Hearing to Decision

A Justice who forms part of the coram hearing a case must participate at every stage from hearing to the taking of the decision, and any proceedings conducted without a full coram are a nullity.

Civil Procedure — Delivery of Reserved Judgment — Judge Retiring or Dying Before Delivery

Where judgment or reasons have been reserved and a Judge retires, dies, or is otherwise unavailable, the judgment may be delivered by another Judge or the Registrar, provided that the judgment was in writing and signed by that Judge while still a member of the Court before loss of jurisdiction.

Civil Procedure — Civil Appeals — Requirement of Separate Judgments and Written Reasons for Dissent

In civil appeals, separate judgments must be given by the members of the Court unless the decision is unanimous and the presiding judge otherwise directs; a Justice on the panel who dissents must give written reasons, unlike in criminal appeals where one judgment is given and a dissenting judge need not sign it.

Constitutional Law — Article 135(1) — Constitution of the Court of Appeal — Judgment by Two of Three Justices a Nullity

A Court of Appeal judgment produced and signed by only two of the three Justices who heard the appeal, without participation of the third, is a nullity for want of coram, as two Justices acting alone cannot form a majority of a three-member coram, contrary to Article 135(1) of the Constitution, section 12 of the Judicature Act and Rule 33(5) of the Court of Appeal Rules.

Constitutional Law — Article 126(2)(e) — Technicalities — Want of Coram Goes to the Root and Is Not a Mere Technicality

A judgment rendered without a properly constituted coram is a fundamental defect that goes to the root of the case and cannot be cured as a mere technicality under Article 126(2)(e) of the Constitution.

Legislation cited (8)

Constitution of Uganda Article 135(1)
Constitution of Uganda Article 131
Constitution of Uganda Article 126(2)(e)
Judicature Act s.12
Court of Appeal Rules Rule 33(5)
Court of Appeal Rules Rule 33(6)
Judicature (Supreme Court) Rules Rule 32
Registration of Titles Act s.134

Cases cited (2)

Orient Bank Limited v Fredrick Zaabwe and another (Civil Application No. 17 of 2007)
Komakech Geoffrey & 2 others v Rose Akol Okello & 2 others (Civil Appeal No. 21 of 2010)

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.