Last year Supreme Court in the case of Hassan Basajjabalaba and Basajjabalaba Muzamiru V Attorney General 2021on the (19th of Nov 2021) reaffirmed the position regarding the legal effect of the delivery of signed judgements and whether absence of a member who was previously part of the coram and absence of their signature makes the judgment a nullity.
In a sixty four-paged ruling, the Supreme Court reaffirmed that,
“neither the interest of Justice nor public policy would demand that a decision of five judges be invalidated because one of the judges who participated in the decision retired or died before the decision was pronounced. While the date of delivery is the day, the judgement takes effect. It is not the day the decision is made.”
Furthermore, such a judgment is valid even with the absence of a single judge’s signature due to the general constitutional rule in article 126(2) (e) that justice must be rendered without undue regard to technicalities.
Justice of the Supreme Court Faith Mwondha gave the leading and majority judgement on the panel of Justices that comprised of JSC Percy Night Tuhaise, JSC Mike Chibita and Dr. JSC Esther Kisaakye who gave the dissenting judgement. Whereas Prof Justice Tibatemwa-Ekirikubinza agreed with the lead Judgement of JSC Faith Mwondha but deferred with her on the merits of ground 3 which were on the basis that they were argumentative
The background
The background of the petition which was extensively stated in the constitutional court in it’s Judgement is briefly as follows;
The appellants (Hassan Basajjabalaba and Basajjabalaba Muzamiru) filed a constitutional petition under Article 137 (1), (3) (b) and (4) of the 1995 Constitution of the Republic of Uganda (for the purpose of this summary are; - Art 137 (1) Any question as to the interpretation of this Constitution shall be determined by the Court of Appeal sitting as the Constitutional Court. (3) A person who alleges that- (a). An Act of Parliament or any other law or anything in or done under the authority of any law; or (b). Any act or omission by any person or authority, is inconsistent with or in contravention of a provision of this Constitution, may petition the Constitutional Court for a declaration to that effect, and for redress where appropriate. (4) Where upon determination of the petition under clause (3) of this article the Constitutional Court considers that there is need for redress in addition to the declaration sought, the Constitutional Court may; - (a). Grant an order of redress; - or (b). Refer the matter to the High Court to investigate and determine the appropriate redress.
In addition, the Constitutional Court (Petitions and References) Rules, Rules S.I 91 of 2005[1] seeking declarations and other reliefs and redress. The petition only succeeded in part thus leading to the appeal in the Supreme Court.
Issues.
The appellants being dissatisfied with the ruling of the constitutional court, appealed to the Supreme Court stating four separate grounds of appeal which among others are
1. That the learned Justices of the constitutional court erred in law and in fact, when they delivered judgement in the petition without being constituted as a constitutional court thereby rendering the judgement a nullity.
2. That the learned Justices of the constitutional court erred in law and in fact, when they delivered a judgement in the petition, yet three out of the four Justices who signed the judgement had since vacated the constitutional court thereby rendering the Judgement a nullity;
3. That in the alternative but without prejudice, the learned Justices of the constitutional court erred in law and in fact, when they failed to evaluate the evidence on record and apply it to the law.
4. That the learned Justices of the constitutional court erred in law and in fact, when despite the evidence on record and their findings, they failed to grant all reliefs sought by the appellants in the petition.
General rule on Signing Judgements.
According to the case of Komakech Godfrey Vs Rose Akol Okullu & 2 Ors SCCA No.21 of 2011 court held that the Judgement of unanimous shall be signed by all Justices on the panel unless they deliver separate Judgements and where a judgement is not signed by a member of the court, the absence of his/her own written reasons renders the judgement/ruling a nullity for want of Coram during hearing and decision.
Whereas in the case of Sarah Kaluta Vs Uganda SCCA No.03 of 2018 where court observed that where there is a majority decision it constitutes the judgement of the court and the absence of the justice’s signature does not invalidate the decision of the court which was taken after a hearing of the case in accordance with the constitution thus affirming the decision of Orient Bank Limited Vs Fredrick Zaabwe& Anor
Similarly in the case of Orient Bank Limited Vs Fredrick Zaabwe & Anor Civ. App No.17 of 2007 where court observed that; “The proposition that this court’s Judgement in a case heard and delivered one of the Justices has ceased to be a member of the court, is novel” thus the reason that prevents the Judge who wrote the signed judgement to deliver it in person is not a factor for sub-rule 8 of the Judicature Supreme Court rules (SI 13-11) for the purpose of the sub-rule it is immaterial that the judge is prevented by death or retirement provided that at the time of writing and signing the judgement the judge was a member of the court.
Court further noted, “It is trite law that a judgement takes effect from the day it is pronounced, hence the requirement in sub-rule 9 that it be dated as of the day it is delivered and not necessarily the day it is signed, though more often than not the two are done at the same time.
The other requirements why Judgements must be in writing and signed is to ensure its authenticity and validation of the judge/judges making it.
In case of reserved judgements, the writing and signing are invariably done before the time the judgement is delivered and it’s authenticity and validity are thus preserved up to it’s delivery.
The Judgement of Faith Mwondha JSC
She agreed with the reasoning of the court in the case of Orient Bank Limited Vs Fredrick Zaabwe & Anor Civ. App No.17 of 2007 that neither the interest of Justice nor public policy would demand that a decision of five judges be invalidated because one of the judges who participated in the decision retired or died before the decision was pronounced. While the date of delivery is the day, the judgement takes effect. It is not the day the decision is made.
Thus the argument by the appellants counsel that since some of the justices had ceased to be members of the constitutional court at the time of delivery of the judgement, the decision is by reason therefore a nullity.
She also observed the provisions of Article 126 (2) (e) (Which is substantive justice shall be administered without undue regard to technicalities) thus in the matter of substantive justice which must handled carefully and correctly the failure by Justice Steven Kavuma, DCJ to append a signature on the judgement or give written reasons for concurring or dissenting from the same did not render the entire judgement a nullity
Accordingly, the judgements pronounced were not a nullity, thus grounds 1 & 2 fail
Whereas grounds 3 & 4 offended rule 82(1) of the Judicature Supreme Court rules (SI 13-11), since they are argumentative and they are an abuse of court process as they provide for alternative grounds.
The Dissenting Judgement of Dr. JSC Esther Kisaakye
The learned Justice noted that it is true by the time the majority judgement was given, 4 out of the 5 members of the Coram members namely Justice Opio Aweri, Mwangusya, Kavuma and Bosa were no longer members of the constitutional court, the judgement was delivered by Justice Remy Kasule who was the only remaining Justice on the Coram that had heard the petition.
Therefore, what was in contention is whether the majority judgement which was delivered was valid, despite having been delivered when the majority members of the Coram had ceased to be members of the constitutional court
The learned Justice went ahead and acknowledged the various authorities that were cited by both counsel for the appellants and counsel for the respondents. But cautioned them for failure to take note of the recent court ruling of David Chandi Jamwa v Uganda [2019] UGSC 61[2] where the impugned judgement was delivered by Kenneth Kakuru in January 2018 when 2 of the Justices who had heard the appeal were no longer members of the court of appeal the majority Judges of the supreme court acknowledged that there was an inordinate delay in the delivery of the judgement and there was non compliance with Rule 33 of the court of appeal rules which provides that the judgement be dated as the day when it was delivered.
Court held that in our view none of these two errors was so fatal to render invalid a signature of a judge who had jurisdiction in the matter at the time he appended the signature. Further from the record of the court of appeal, the date, which the judgement was delivered, is well known
However, Twinomujuni JSC (as he then was) and Dr. JSC Esther Kisaakye gave the dissenting view stating that the two decisions cited in above cases is the correct legal position. However, we wish to add that the majority of the members who remain must constitute the majority of the members of the panel and concur in the decision.
“if for example a panel consists of 5 members and two vacate at the court before delivery of the judgement, the remaining judges can deliver a valid judgement only if all agree in decision, there will be no decision of the court if one of those who remained dissents”
In relation to the present case, Dr. JSC Esther Kisaakye held that since there was no evidence on record showing the judgement by Mwangusya, Opio Aweri and Bbosa ceased to be members of the constitutional court thus the integrity of the impugned judgement was put in question which is similar to the instant facts
Thus because DJSC Steven Kavuma who was part of the coram neither signed nor gave a dissenting judgement or orders of the court which embodies the decision of the constitutional court the judgement that was issued therefore was not a valid judgement.
Follow the link below to read full case👇🏻
Summarized by
Waboga David
[1] Available at https://media.ulii.org/files/legislation/akn-ug-act-si-2005-91-eng-2005-12-23.pdf [2]Available at https://media.ulii.org/files/judgments/ugsc/2019/61/2019-ugsc-61_0.pdf 1/5/2022 3:43:58 AM
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