Court name
Supreme Court of Uganda
Judgment date
2 September 2004

Attorney General v Paul K Ssemogerere and Ors (Constitutional Application-2004/2) [2004] UGSC 3 (02 September 2004);

Cite this case
[2004] UGSC 3

THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA

AT MENGO

(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)

BETWEEN


ATTORNEY GENERAL APPLICANT

AND

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
which was
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
who
represented the applicant in Constitutional Appeal No.1 of 2002 and in
Constitutional Petition No.7 of 2000 did not seek instructions
from Parliament
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)
Act 2000.

Mr. Tibaruha contended that as a result of that annulment there exists a
paralysis in Parliament, which would cease if the main application
is granted.
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
execution.

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
and the
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
available opportunity
when the petition was lodged in court. The two issues were
raised during the trial of the Petition and later during the hearing in
this
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
preliminary matter.
Rule 29(2)(a) of the Rules of this court does not apply to
application for leave to adduce additional evidence after the disposal
of an
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
Constitutional Court
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
General,
to the incompetence of one Commissioner who, notwithstanding the
judgment of him by the Solicitor General, had risen steadily in
the promotional
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
senior officers
in the applicant's chambers we would have expected Dennis
Bireije or any one or more of the other officers who handled the petition
and
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
get Bireiji
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



B.J. ODOKI.
CHIEF JUSTICE

A. H. O. ODER.
JUSTICE OF THE SUPREME
COURT.

J.W.N. TSEKOOKO.
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.

C. BYAMUGISHA
AG. JUSTICE OF THE SUPREME
COURT.