THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA
(CORAM: ODOKI, CJ; ODER, TSEKOOKO, KAROKORA, MULENGA, KANYEIHAMBA, JJ.S.C. AND BYAMUGISHA, AG. J.S.C).
CONSTITUTIONAL APPLICATION NO.2 OF 2004
(Arising from Constitutional Appeal No.1 of 2002)
ATTORNEY GENERAL APPLICANT
1. PAUL K. SSEMOGERERE } 2. ZACHARY OLUM } 3. JULIET RAINER KAFIRE}...............................................RESPONDENTS
RULING OF THE COURT.
The Attorney General brought this Application under Article 132(4) of the Constitution, and Rules 1 (3), 41 (1) and (2) of the rules of this court, for orders that:
(1) This Honourable court be pleased to recall and alter, vary and/or review/reverse its judgment in Constitutional appeal No.1 of 2002.
(2) This Honourable court be pleased to vary and/or review/reverse its declaration and order for costs in the said Constitutional Appeal No.1 of 2002, so that amendments to articles 88, 89, 90 and 257 of the Constitution are held to have been validly made. (3) Costs of this application be provided for.
The notice of motion states that the grounds of the application are set out in the affidavits of the clerk to Parliament, Mr. Aonis Tandekwire and of Mr. Mike Chibita, Principal State Attorney, both of which are attached to the Notice of motion. The grounds also provide a background to the application. They are set out as follows:
(a) The Constitutional Appeal No.1 of 2002 challenged the Constitution (Amendment) Act 2000, on grounds that in amending Articles 88,89,90,97 and 259 of the Constitution, the right procedure was not followed by Parliament.
(b) The amendments to Articles 88,89,90, and 257 were declared null and void for the reason that the method of voting used by Parliament in passing the Bill was not the Head-count method, and that the Bill for assent to the President for those amendments was not accompanied by a Certificate of the Speaker of Parliament showing that the provisions of Chapter 18 of the Constitution had been complied with.
(c) In actual fact, during the debate on the Constitution Amendment Bill 2000, Parliament did not use the voice voting method of "Ayes" and "Noes", but the Head count method.
(d) In actual fact on the said Bill for amendment of Articles 88,89,90, and 257 was accompanied by a Certificate of the Deputy Speaker of the 6th Parliament showing that the requirements of Chapter 18 of the Constitution had been complied with.
(e) Mr. Dennis Bireije, Commissioner for Civil Litigation, who represented the Applicant in Constitutional Appeal No.1 of 2002 and in Constitutional Petition No. 7 of 2000 did not seek prior instructions from Parliament on the two matters and did not therefore adduce evidence in this or the Constitutional Court to show that head-count methods of voting was used in passing the Constitution (Amendment) Act 2000, and to show that a Certificate showing compliance with Chapter 18 of the Constitution accompanied the said Bill to the President before it was assented to.
(f) Had Mr. Bireije presented the Hansard relating to the passing of the Bill for Amendments, and the said certificate, the amendments to Articles 88,89,90 and 257 would have been upheld.
(g) Constitutional Appeal No. 1 of 2002 was a matter of great national and public importance in that the amendments to Articles 88,89 and 90 of the Constitution were intended to remove the paralysis in Parliament caused by the decision of the Constitutional Court delivered on 10th August, 2000, in Constitutional Petition No.3 of 1999, with regard to quorum and voting in Parliament, and the functioning of the Committees of Parliament when handling Bills.
(h) Therefore the mistake of Mr. Bireije should not prejudice the amendments of the said Articles 88,89,90 and 257 when the Constitution (Amendment) Bill was passed using the Head-count method of voting, and was sent to the President for assent accompanied by the Certificate of the Speaker showing compliance with Chapter 18 of the Constitution.
(i) The declarations made by this Court in the said Constitutional Appeal No.1 of 2002 have not been enforced, in that no order or decree has been served on the Applicant by the Respondents in the said Constitutional appeal No.1 of 2002, for the purpose of effecting a formal repeal by Parliament, of the impugned Constitution (Amendment) Act, 2000.
(j) The declarations made by this court have not been enforced and this court has power under Article 132(4) of the Constitution and/or Rule 1(3) of the Rules of this Court to grant the orders sought.
(k) It is in the interest of Justice that this court recalls and alters, varies and/or reviews its decisions nullifying the amendments to the said Articles 88,89,90 and 257 and awarding costs to the Respondents in the said Constitutional Appeal No.1 of 2002.
The applicant was represented by the learned Solicitor General, Mr. Tibaruha,
who was assisted by Mr. Joseph Matsiko, learned Ag.
Commissioner for Civil
Litigation. The respondents were represented by Mr. G.S. Lule S.C. who was
assisted by Mr. Balikuddembe.
Following guidance from the court, the learned Solicitor General dropped
Article 132(4) of the Constitution from the Notice of Motion.
He also conceded
that the application would be incompetent without leave of court to adduce
additional evidence, and he proceeded
to make an informal application under rule
1(3) of the Rules of this court, to be allowed to present additional evidence
the basis of the application by motion.
The learned Solicitor General commenced his submissions by stating that the application concerns a matter of great public and national importance, namely the Constitution (Amendment) Act 2000, which was annulled by this Court in its judgment of 29th January 2004 in Constitutional Appeal No.1 of 2002. He contended that had this court received the additional evidence, which he wishes to be admitted now, the Court's decision and declarations in Constitutional Appeal No.1 of 2002 would have been different. He submitted that the pieces of additional evidence he sought to adduce were:
(a) Copy of Hansard containing the proceedings of Parliament in passing the Constitution (Amendment) Bill No.13 of 2000, showing that voting was by head-count;
(b) The Speaker's (certificate which accompanied the Bill for Presidential assent, signifying compliance with Chapter 18 of the Constitution in passing the Bill.
Both the documents were attached as annextures to Mr.
Tandekwire's affidavit supporting the Notice of Motion.
The learned Solicitor General contended that the reason why the evidence was
not produced was because of the incompetence of counsel
who represented the
applicant in both the Constitutional Court and this Court. The counsel concerned
was named by the Solicitor General
as one Dennis Bireije, Commissioner for Civil
Litigation in the applicant's chambers. Mr. Tibaruha contended that Mr. Bireije
represented the applicant in Constitutional Appeal No.1 of 2002 and in
Constitutional Petition No.7 of 2000 did not seek instructions
on the two instruments and did not tender them as evidence in either of the two
Courts. The solicitor General contended
that had Mr. Birige done so and
presented the Hansard relating to the passing of the Bill, certain amendments in
it which were properly
passed would have been severed from the rest of the Act
and upheld by this Court as having been validly passed by Parliament. He
submitted that this court should invoke the principle that the failings of
counsel should not be visited on to the client; and exercise
its inherent powers
to remove a miscarriage of justice, which has occurred as a result of the
annulment of the Constitution (Amendment)
Mr. Tibaruha contended that as a result of that annulment there exists a
paralysis in Parliament, which would cease if the main application
He maintained that it was therefore in the public interest that the judgment be
revisited to remove the paralysis in
Parliament. He cited NPART Vs General
Parts (Uganda Ltd), Misc. Application No. 8 of 2000 (SCU) (unreported); the
Government Proceedings Act. Cap. 79,
and Article 126(2)(c) of the
Constitution 1995; and Kawoya Joseph Vs. Uganda Cr. Appeal No.50 1999 (SCU); as
authorities for his submissions and to show
that this Court has powers to recall
its judgment as that judgment has not yet been the subject of
Mr. Lule S.C, lead counsel for the respondents, opposed the application for
leave to adduce additional evidence. In effect he argued
that the Solicitor
General had not shown good cause to justify reception of additional evidence by
this Court during the hearing
of this application, six months after the
conclusion of the appeal. In his view, the case of General Parts
(supra) is inapplicable and distinguishable, while that of Kawoya
Joseph (supra) supports his clients' case. Mr. Lule contended that the
first issue of the procedure adopted in Parliament during the debate
eventual passing of the Bill resulting into the Constitution (Amendment) Act,
2000 and the second issue of the absence of
the Speaker's Certificate for the
Presidential Assent to the Act were raised by the respondents at the earliest
when the petition was lodged in court. The two issues were
raised during the trial of the Petition and later during the hearing in
Court of the Appeal therefrom. At no stage did the applicant attempt to adduce
either of the two pieces of evidence. Mr. Lule
contended that the applicant has
failed to justify the need to admit additional evidence.
Having heard both counsel and examined the background to this application and
the evidence on which we based our findings and decisions
in our judgment in
Constitutional Appeal No.10 of 2002, we are in a position to consider and
resolve the pertinent issues raised
in the oral application for tendering
additional evidence. We shall consider and rule on the oral application as a
Rule 29(2)(a) of the Rules of this court does not apply to
application for leave to adduce additional evidence after the disposal
appeal, which the applicant seeks to do by his oral application.
The rule provides:
"2 (2) (a) When an appeal emanates from a decision of the Constitutional Court -
(a) In the case of an appeal on a petition to the Constitutional Court, the Court, may appraise the evidence and decide matters of fact, or law or mixed law and fact, and may in its discretion take additional evidence."
The rule permits additional evidence in an appeal from the Constitutional
Court to this court in a Constitutional Appeal. It does
no apply to a situation,
as now in the instant case, where the appeal has been disposed of and the party
who lost the appeal is applying
for a review and reversal of the judgment in the
appeal. Consequently, the applicant has relied on rule 1(3) of the Rules of this
court, which provides: "1(3) Nothing in these Rules shall be taken to limit or
otherwise affect the inherent power of the Court,
and Court of Appeal to make
such orders as may be necessary for achieving the ends of justice or to prevent
abuse of the process
of any such court, and that power shall extend to setting
aside judgments which have been proved null and void after they have been
passed, and shall be exercised to prevent an abuse of the process of any court
caused by delay."
There are no authorities on what principles or conditions this Court may allow an application such as the present, but our opinion is that authorities or decided cases which are relevant to this Court's discretion to admit additional evidence on appeals to it do provide useful guidance for that purpose, and are of persuasive value. We have in mind: Ladd Vs Mashall (1954) 3 All ER 745 at 148 Skone Vs Skone (1971), 2 All ER 582 at 586; Langdale Vs Danby (1982) 3 ALL ER. 129 at 137; Sadrudin Shariff Vs Tarlochan Singh (1961) EA.72, Elgood Vs Regina (1968) EA 274; American Express International Vs Atulkimar S. Patel, Application No.8B, of 1986 (SCU) (unreported); Karmali Vs Lakhani (1958), EA.567 and Corbett (1953), 2 ALL ER, 69. A summary of these authorities is that an appellate court may exercise its discretion to admit additional evidence only in exceptional circumstances, which include:
(i) Discovery of new and important matters of evidence which, after the exercise of due diligence, was notwithin the knowledge of, or could not have been produced at the time of the suit or petition by, the party seeking to adduce the additional evidence;
(ii) It must be evidence relevant to the issues;
(iii) It must be evidence which is credible in the sense that it is capable of belief;
(iv) The evidence must be such that, if given, it would probably have influence on the result of the case, although it need not be decisive;
(v) The affidavit in support of an application to admit additional evidence should have attached to it, proof of the evidence sought to be given;
(vi) The application to admit additional evidence must be brought without undue delay.
These have remained the stand taken by the courts, for obvious reasons that there would be no end to litigation unless a court can expect a party to put its full case before the court. We must stress that for the same reason, courts should be even more stringent to allow a party to adduce additional evidence to re-open a case, which has already been completed on appeal.
The applicant's explanation why the additional evidence now sought to be
admitted was not adduced at the trial of the petition or
at the appeal to this
Court is alleged negligence and incompetence of Mr. Dennis Bireije, Commissioner
for Civil Litigation in the
applicant's chambers, who was one of the counsel who
represented the applicant in both courts. To us, this means that the evidence
was available and that with due diligence it could have been adduced at the
trial of the petition or on the appeal to this court,
but it was not.
The record shows, that the applicant's answer to the petition was drawn by
"Mr. Cheborion Barishaki" Director for Civil Litigation
in the applicant's
chambers, not Dennis Bireije. More importantly when the hearing of the petition
commenced, the applicant was represented
by another senior counsel, "Mr. D.
Byamugisha, A. A. Director of Civil Litigation, assisted by Samu Serwanga, SSA,
and Ms. C. Kahwa,
SSA." Mr. Byamugisha raised and argued two preliminary points
of objection to the petition. The first was that the petition was incompetent,
because the affidavits which supported it were defective. The second was that in
this case, the Constitutional Court had no jurisdiction
to interpret Act 13/2000
because the Act had become part and parcel of the Constitution as all the
Constitutional procedural requirements
for enacting it had been complied with.
Counsel for the respondents, Mr.G.S. Lule, opposed the objections. The
overruled the objections and proceeded to hear the
petition. In the circumstances with due respect, we are unable to agree with the
learned Solicitor General's contention that it was the fault of Mr. Dennis
Bireije alone that evidence now sought to be admitted
as additional evidence was
not produced at the trial of the petition or at the appeal hearing. It is
inconceivable that a petition
and an appeal of this importance could have been
left to the whims of, or to put it in the words of the learned Solicitor
to the incompetence of one Commissioner who, notwithstanding the
judgment of him by the Solicitor General, had risen steadily in
ranks of the Attorney General's Chambers, presumably on merit. Further, the
applicant's case both in the Constitutional
Court and on appeal to this Court
having been handled, according to the record, by Dennis Bireije and other quite
in the applicant's chambers we would have expected Dennis
Bireije or any one or more of the other officers who handled the petition
the appeal to have explained by affidavit why copies of the Speaker's
Certificate and of the Hansard were not produced as evidence
at the hearing of
the petition or as additional evidence on appeal to this court. When the court
questioned the learned Solicitor
General on this point his answer was that
Dennis Bireije was on suspension. He did not say what efforts had been made to
to give such explanation by affidavit even though he was on
suspension or why the others had not done so.
Lastly another factor we must take into account is that this application to
admit additional evidence was brought several months after
the appeal was
completed. The judgments in the appeal were delivered on 29/1/2004, and this
application was filed in Court on 22/7/2004.
That was not bringing this
application without undue delay.
For these reasons, we are unable to say that the oral application to adduce
additional evidence in this case fulfills the special
conditions we have
referred to above. It must therefore fail and it is accordingly dismissed with
costs to the respondents.
As the additional evidence sought to be adduced forms the only basis of the application by notice of motion for recalling the judgment of the Court in Constitutional Appeal No. 1/2000, that application has no basis. It must also fail, and it is dismissed with costs to the respondents.
Dated at Mengo this 2nd day of September 2004
A. H. O. ODER.
JUSTICE OF THE SUPREME COURT.
JUSTICE OF THE SUPREME COURT.
A. N. KAROKORA.
JUSTICE OF THE SUPREME COURT.
J. N. MULENGA.
JUSTICE OF THE SUPREME COURT.
G. W. KANYEIHAMBA.
JUSTICE OF THE SUPREME COURT.
AG. JUSTICE OF THE SUPREME COURT.