Wakilii

Kinyara Sugar Limited v Hajji Kazimbaraine & 4 Others (Civil Revision No. 3 of 2020)

High Court · [2020] UGHC 45 · 2020 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review of High Court ruling dismissing application to strike out suit as res judicata
Decision
Ruling in HCMA 39 of 2018 set aside; matter remitted for hearing by a different judge

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that section 82 of the Civil Procedure Act confers wider review powers than Order 46 of the Civil Procedure Rules. A judicial officer who has a commercial relationship with one of the parties that creates shared interest with the opposing party ought to disclose this and recuse himself to avoid apparent bias. Here, the retired judge was a sugarcane out-grower who stood to benefit from a favourable outcome for the respondent out-growers. His failure to disclose this relationship and recuse himself raised a real likelihood of bias, violating the Uganda Judicial Code of Conduct and Article 28(1) of the Constitution. The applicant only discovered this relationship after the ruling. Application for review allowed; ruling set aside.

Outcome

Ruling in HCMA 39 of 2018 set aside; matter remitted for hearing by a different judge

Facts

The applicant, Kinyara Sugar Limited, sought review of a ruling in HCMA 39 of 2018 which dismissed its application to strike out HCCS 30 of 2017 as res judicata. The respondents were sugarcane out-growers who had filed arbitration proceedings and subsequently a civil suit seeking compensation for byproducts of sugarcane supplied to the applicant. The applicant's application to strike out the suit for being res judicata was dismissed by retired Justice Albert Rugadya Atwooki. After the ruling, the applicant's Company Secretary discovered through a departmental head that the retired judge was himself a sugarcane out-grower who supplied cane to the applicant and received payment on invoices marked 'out grower cane purchase invoices'. The applicant argued the judge should have recused himself due to conflict of interest and apparent bias, as he stood to benefit from a favourable outcome for out-growers. The respondents opposed, arguing the application was a disguised recusal motion that should have been brought during trial, and that the Company Secretary, as custodian of records, should have known earlier.

Issues

  1. Whether the High Court should review and set aside a ruling on the ground of judicial bias or apparent bias where the trial judge was a sugarcane out-grower with a commercial relationship with the applicant company.
  2. Whether the applicant discovered new and important evidence after due diligence that was not within its knowledge at the time the original ruling was made.
  3. Whether section 82 of the Civil Procedure Act confers wider review powers than Order 46 of the Civil Procedure Rules.
  4. Whether the retired judge ought to have recused himself from hearing the matter due to a real likelihood of bias.
  5. Whether the applicant is an aggrieved person within the meaning of section 82 of the Civil Procedure Act entitled to seek review.

Orders

  • The orders in HCMA 39 of 2018, Kinyara Sugar Limited vs. Hajji Kazimbiraine Mahmood and 4 others, are hereby set aside.
  • The Applicant will have costs of the Application.

Rules and key headnotes

Civil Procedure — Review of Judgment — Scope of Section 82 Civil Procedure Act versus Order 46 Civil Procedure Rules
Section 82 of the Civil Procedure Act confers wider powers of review than Order 46 of the Civil Procedure Rules and the restrictions imposed by Order 46 do not apply to section 82, which grants an unfettered right to apply for review in specified circumstances and unfettered discretion to the court to make such orders as it thinks fit.
Civil Procedure — Review of Judgment — Aggrieved Person — Constitutional Right to Impartial Tribunal
An aggrieved person under section 82 of the Civil Procedure Act is one who has suffered a legal grievance, meaning a person against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully affected his rights. Where a party's constitutional right under Article 28(1) to a fair hearing before an impartial court is compromised by judicial bias, that party is an aggrieved person entitled to seek review.
Administrative Law — Judicial Conduct — Duty of Disclosure — Uganda Judicial Code of Conduct
Under Principle 2.4 of the Uganda Judicial Code of Conduct, a judicial officer shall refrain from participating in any proceedings in which the impartiality of the judicial officer might reasonably be questioned. A judicial officer has a mandatory obligation to disclose to parties any information that may bring their integrity into question, as the justice system is built on transparency and is rules-based.
Administrative Law — Judicial Bias — Test for Apparent Bias — Real Likelihood Test
In determining whether a judicial officer is biased, the court does not look at the mind of the judge himself but at the impression given to other people. Even if the judge was impartial in fact, if right-minded persons would think that in the circumstances there was a real likelihood of bias, the judge should not sit, and if he does sit, his decision cannot stand. There must be reasonable evidence of a real likelihood of bias, such as evidence of proprietary interest in the subject matter or shared interest with one of the parties.
Administrative Law — Judicial Bias — Commercial Relationship Creating Shared Interest — Sugarcane Out-Grower
Where a judge has a commercial relationship with one party as a sugarcane out-grower and the dispute concerns whether out-growers should receive better terms from that party, the judge's participation raises a real likelihood of bias because reasonable members of the public would perceive the judge as having a shared interest with the opposing party in obtaining a better deal, making him a judge in his own cause.
Civil Procedure — Review of Judgment — Discovery of New Evidence — Due Diligence
Where a party discovers after a ruling that the trial judge had a commercial relationship with the opposing party that was not public knowledge and the party's Company Secretary had no reason to profile the judge as having such relationship, and where records of such relationships were kept by a different department, the party has satisfied the threshold of discovering new and important evidence after due diligence for purposes of seeking review.

Legislation cited (4)

Cases cited (10)

  • Sadam Muhammed vs. Chanani Singh, 1959 EA
  • GM Combined (U) Limited vs. AK Detergents (1999) 1 EA 84
  • Miter Investments Limited vs. East African Portland Cement Company Limited (HCMA No. 534 of 2012)
  • UCB vs. Mokone Agencies (1982) HCB
  • Sadar Mohamed vs. Charan Singh (1959) 1 EA 792
  • Tullow Uganda Limited & Tullow Uganda Operations Pty Limited vs. Jackson Wabyona & Uganda Revenue Authority (HCMA No. 197 of 2017)
  • Re Nakivubo Chemist (1979) HCB 12
  • Ex parte Side Bothan in re Side Botham (1880) 14 Ch. D 458
  • Rep vs, Barnsley Licensing Exparte Barnsley and District Licensed Victuallers Association (1960) 2 QBD 169
  • Meera Investments Limited vs. Commissioner URA (Civil Appeal No. 15 of 2017)

Full judgment

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Kinyara Sugar Limited v Hajji Kazimbaraine & 4 Others (Civil Revision No. 3 of 2020) [2020] UGHC 45 (31 March 2020)
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.