Namyalo Kevina and Another v John Baptist Kawanga (Civil Appeal No. 16 of 2020)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

On a second appeal, the Supreme Court considered whether the Court of Appeal's judgment was a nullity because one of the three justices who heard the appeal, having been elevated to the Supreme Court, neither participated in its final stages nor wrote or signed a judgment. The Court held that in civil appeals rule 33(5) of the Judicature (Court of Appeal Rules) Directions requires each justice to write a separate judgment unless the decision is unanimous and the presiding judge directs otherwise. Where a justice who heard the appeal left no written, signed judgment, the decision was invalid and of no effect. The appeal was allowed and the matter remitted for hearing before a differently constituted panel.

Outcome

Appeal allowed; Court of Appeal judgment set aside as invalid and remitted to a differently constituted panel of the Court of Appeal for rehearing

Facts

The appellants sued the respondent and the Commissioner for Land Registration in the High Court, alleging the fraudulent transfer of estate land comprised in Buddu Block 333 at Kigo, Masaka district. The High Court granted the suit, declaring the appellants lawful owners, ordering cancellation of titles, eviction and damages. The respondent appealed to the Court of Appeal, which allowed his appeal, holding he was a bona fide purchaser for value and that the suit was time-barred. The Court of Appeal panel comprised three justices: Owiny-Dollo DCJ, Kakuru JA and Tuhaise JA. The lead judgment was written by Owiny-Dollo DCJ, with Kakuru JA concurring. Tuhaise JA participated in the hearing and agreed the appeal should succeed, but was elevated to the Supreme Court before the final stages of judgment and neither wrote nor signed any judgment. The appellants appealed to the Supreme Court and sought to add a ground contending that the Court of Appeal was not duly constituted when its judgment was delivered.

Issues

1. Whether the appellants should be granted leave to amend the memorandum of appeal to add a ground challenging the jurisdiction of the Court of Appeal.
2. Whether the Court of Appeal lacked the requisite coram to render judgment in Civil Appeal No. 130 of 2017, where one of the three justices who heard the appeal was elevated to the Supreme Court and did not participate in, write or sign the final judgment.
3. Whether the Court of Appeal's judgment was a nullity for want of due constitution under article 135(1) of the Constitution and rule 33(5) of the Judicature (Court of Appeal Rules) Directions.

Orders

• Objection to admitting the additional ground of appeal on jurisdiction overruled.
• Appeal allowed on the point of law concerning the incompetence of the Court of Appeal judgment.
• Judgment of the Court of Appeal set aside as invalid and of no effect.
• Appeal file remitted to the Court of Appeal to be placed before another panel to hear and determine the appeal.
• Each party to bear its own costs of the appeal.

Rules and key headnotes

Legislation cited (15)

• Constitution of Uganda 1995 art.135(1)
• Constitution of Uganda 1995 art.135(2)
• Constitution of Uganda 1995 art.131
• Constitution of Uganda 1995 art.28(1)
• Constitution of Uganda 1995 art.44
• Constitution of Uganda 1995 art.126(2)(e)
• Judicature Act Cap 13 s.12(1)
• Judicature (Court of Appeal Rules) Directions r.33(3)
• Judicature (Court of Appeal Rules) Directions r.33(5)
• Judicature (Court of Appeal Rules) Directions r.33(10)
• Judicature (Court of Appeal Rules) Directions r.98
• Judicature (Court of Appeal Rules) Directions r.100
• Judicature (Court of Appeal Rules) Directions r.17
• Judicature (Supreme Court Rules) Directions r.32(8)
• Judicature (Supreme Court Rules) Directions r.98

Cases cited (6)

• Desai v Warsama [1967] 1 EA 351
• John Lubega v John Ssinabulya and Others (Supreme Court Civil Appeal No. 4 of 2019)
• David Chandi Jamwa v Uganda (Supreme Court Criminal Appeal No. 2 of 2018)
• Orient Bank Ltd v Frederick Zaabwe and Mars Trading Ltd (Supreme Court Civil Application No. 17 of 2007)
• Surendra Singh and Others v State of Uttar Pradesh (1954) AIR 194
• Sarah Kulata Bisangwa v Uganda (Supreme Court Criminal Appeal No. 3 of 2018)

The original judgment as reported. Read the original PDF before relying on any passage.