[2010] UGCC 12

#### ⁵ THE R-EPUBLIC OF UGANDA

## IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPAT A

#### CONSTITUTIONAL PETITION NO. 03 OF 2OO8

10 GOODMAN AGENCIES LTD ETITIONER

#### VERSUS

l. ATTORNEY G RESPONDENTS

#### 2. HASSA GENCIES (K) LTD

{added by order of court}

## CORAM: HON. JUSTICE A. E. N MPAGI-BAHIGEINE,JA HON. JUSTICE C. K. BYAMUGISHA,JA HON. JUSTICE S. B. K. KAWMA,JA HON. JUSTICE A. S. NSHIMYE,JA HON. JUSTICE M. S. ARACH AMOKO,JA

#### EMENT OF THE CO

#### Introduction

'Ihis Petition by Nicholas Were, the Managing Dircctor of Goodman Agencies Limited (Goodman), is brought undcr Article 137 of the Constitution of Llganda 1995 and The Judicature Fundamental Rights and Freedoms (Enforcement Procedure) Rules.

It arises out of High Court Civil suit No.7I9 of 1997. The petitioner alleges that:-

- ⁵ 1. Your petitioner is a person affected by the following matters being inconsistent with the Constitution whereby your petitioner is aggrieved. - (a) That Hon. Justice JPM Tatraro held onto the court file after ^a consent judgment entered into by the parties to this suit and filed on the court record on 2/O9/2OO5, keeps it personally out of reach of the High Court Civil Registry and has consistently denied access of the same by the petitioner and his counsel an act inconsistent with A-rticle 28(1) thus denying your petitioner ^a "fair and public hearing before an independent and impartial court or tribunal established by law" - (b) That Hon. Justice JPM Tabaro thereafter initiated or orchestrated and is proceeding with a fresh trial when the substantive suit was concluded. on 2/O9/2005 the date when the parties to the suit entered into a consent judgment and filed it on record. The said learned trial judge is therefore functus officio and prolonging proceedings in a concluded trial an act which is inconsistent with Article 28 (1) because your petitioner is entitled to a speedy hearing "before an independent and impartial court or tribunal established by law." - (c) That the learned trial judge has consistently denied a hearing of your petitioner and his counsel in the said proceedings complained of an act inconsistent with Article 28 (1) because your petitioner is the first judgment creditor and a party to the suit and the consent judgment hence entitled to be heard and also on the equitable principle of Audi alterem partem. - (d) That the learned trail judge grafted on board M,/S Hassa Agencies Ltd and others as co-plaintiffs and thereafter they became co-judgment creditors in a suit that had been concluded

⁵ before they had been joined as parties to the suit or the consent judgment aforesaid thus entitling these strangers to the suit to the fruits of the judgment an act inconsistent with Articles 28(l) because it is abominable to a fair hearing and inconsistent with Article 26 because your petitioner is thereby robbed of part of their entitlement under the said judgment

- (e) than has to be paid to the said strangers to the suit. - (f) That the learned trial judge on his ovvn and alone signed ^a decree drawn by a stranger to the suit that is wholly at variance with the consent judgment aforesaid without reference to your petitioner and his counsel an act inconsistent with Article 28(l) because your petitioner has thereby been robbed of a fair hearing on critical matter central in the execution of any judgment.(sic)

The petitioner seeks declarations in the following terms:-

- ²⁰ 2. Therefore your petitioner prays that the court may:- - (a) (i) grant a declaration that the acts by the learned trial judge Hon. Justice JPM Tabaro complained of hereinabove are unconstitutional. - (ii) grant a declaration that that all the proceedings held or being held by the Hon Justice JPM Tabaro after the filing of the consent judgment on 2/9/2OOS are null and void ab initio.

'fhe petitioncr thcn prays court to grant him redrcss:-

(i) By expunging all the proceedings before Hon Justice JPM Tabaro held or being held from 2/9/2O05 to date from the court record.

## (ii) By ordering the Execution process of the consent Judgment aforesaid to issue forthwith.

#### The background:

Goodman and Hassa Agencies Ltd (Hassa) filed a civil action in the High Court bcing HCCS No. 719197. Subsequently, Hassa ceased to be a party to the suit. Goodman then reached a settlcment agrcement rvith the Attorney Gcneral which rvas approved by the High Court. A conscnt judgment, dated the 2/09/O5, was filed into court and was sealed.

Without Goodman's consent and without the court giving the said Goodman notice, the High Court joined Hassa to the said conscnt judgment and allotted it a portion of the settlement agrecment.

Goodman filed this Constitutional Petition No. 3 of 2008 to challenge thc High Court's actions which, according to it, violated Goodman's constitutional rights to his property and the right to a fair hearing contrary to Articles 26 and 28 of the Constitution respectively.

#### 20

#### Statement of facts

In Novcmber 1996, Ivlilitary Intelligence officers from the IVinistry of Defence (Uganda) seized ten commercial vehicles while on Uganda territory and converted them to the army's own use. Goodman and Hassa were thc two initial plaintiffs in High Court Civil suit No. 7lg of 1997 where they claimed compensation as bailees of the seized vehicles. Goodman's claim was premised on Clause 3 of the hirc agreement datcd 2l-'November 1995, which provides:

> "(Goodman) shall have the legal possession of the said motor vehicle(s) at all times as long as this (these) agreement(s) a (are) in force, with powers to hire the same to third parties appertaining to the said motor vehtcle(s) on behalf of the owner(s),"

⁵ Goodman was the sole hirer and the only one who signed the aforementioned agreement in that behalf. Goodman managed the trucks in Uganda while Hassa managed thcm in Kenya.

Goodman and Hassa filed High Court Civil suit No. 719 of 1997 and sued the state for unlawful seizure and, among others, damages, consequential loss fbr the said vehicles and for loss <lf earnings.

Goodman and Hassa, for somctime prosccuted the claim jointly though, subsequently, with separate legal representation.

In 2000, Goodman and Hassa rcached a preliminary settlement agreement with the Attorney General. However, thc High Court rejected that settlement agreement. It questioned the plaintiff's power of attorney authorizing them to claim as bailees of the trucks.

During the court proceedings, Hassa and its counsel failed to appear and on application by the State Attorney who appeared for the Attorney General, the claim by Hassa was dismissed. Another suit filcd by Hassa over the same matter in the Commercial Division of the High Court of Uganda at Kampala was too, subsequently dismissed. l)uring the course of proceedings, three other persons directly appeared and claimed to have actual ownership of the trucks. The three claimants did not wish to pass through the agency of Goodman or Hassa.

Goodman and the three other individual claimants continued with the original suit in the High Court Civil Division. 25

On 2"'r Septcmber 2005, all the partics, minus Hassa, entered into a consent .iudgment for the sum total of shs. 14,485,547,842/=The Hon. Judge presiding endorsed the conscnt judgment. On 6"' September 2005, the consent judgment was filcd into court and court fees wcre paid. The consent judgment is dully signed by the Solicitor Gencral himself. 'fhe propriety of the consent judgmcnt is beyond contention.

⁵ On 12"'September 2005, Hassa applicd to thc High Court to be added as a party to that consent judgement. On l4'r' November 2005, the court, granted an order adding Hassa to the consent judgment rvithout notifying the othcr parties,

Pursuant to this ordcr, thc court issued a decree dated thc 14'n September 2005 which included Hassa as a party to thc conscnt iudgmcnt. Goodman filed the

instant Constitutional Petition No.3 of 2008 to challenge the High Court's dccision to add Hassa as a part), to the consent judgment. 10

The parties filed written submission under Rule 98 of the l{ulcs of this court.

#### The Issues

At the scheduling conference three issues were framed namely:-

- l. Whether the petition raises any question of constitutional interpretation. 15 - 2. Whether the additional proceedings carried out by the same court after the consent judgment of the 2"'r of September 20O5 were in contravention of Articles 26 and 28(1) of The Constitution. - 3. What reliefs if any, are available to the petitioner. 20

#### The court's resolution of the issues

Having carefully studied and considcred the submissions made on behalf of the parties hereto and the rclevant affidavit evidence on record, we resolve the issues as follows.

#### Issue No.1

This issue was previously resolved by this court in its ruling on the preliminarl' objection raised by the 1-'Respondent.

Issue No. 2

⁵ The gist of this issue is the constitutionality or otherwise of the court's actions and proceedings before it after the signing of the consent judgment on the 2"" September 2005.

Resolution of this issue calls for this Court to strike a balance between giving deference to a judge's discretion and a judge abiding by precedent, Statutes and 10 the Constitution of the land.

Goodman claims that when the Judge joined Hassa as a party to the consent judgment dated the 2/09/2005 and allocated part of Goodman's settlement damages there under to Hassa, the Judge unconstitutionally deprived Goodman of its property.

1s Article 26(21 of thr: Constitution stales:

"26(2) No person shall be compulsorily deprived of property or any interest in or right over property of any description except where the following conditions are sissified-

- (a) The taking possession or acquisition is necessary for public use or in the furterest of defence, public safety, public order, public morality or public health; and - (b) The compulsory taking of possession or acquisition of property is made under a law which makes prowision for- - (i) Prompt payment of fair and adequate compensation, prior to the taking of possession or acquisition of the property; and - (ii) A right of access to a court of law by any person who has an interest or right over the property."

30 According to Shah vs Attorney General 1970 E. A No. 2 523 and Edward Fredrick Ssempebwa vs Attorney General, Constitutional case No. 1 of 1986,

⁵ benefits of a judgment is property and an ac1 to deprive a person of it, if without compensation is unconstitutional and void.

The two exceptions where Goodman's possessory rights in the consent judgment may have been compulsorily taken under the Constitution are if there was a'public necessity'or where a provision of thc law catered for it.

Public necessity, which includes matters involving thc cntirc public, is not relevant to this case. 10

However, "compulsory taking of possession madc under a law" is rclevant.

Llndcr Order I Rule 10(2) ol thc Civil Procedure Rules, thc lar'v providcs:

"1O(2) the Court may at any stage of the proceedings either upon or without the application of either party, and on such terms as mav aDDear to the Court to be iust, order the name of any party improperly joined, whether as plaintiff or defendant be struck out and that the name of qtty rson who ou ht to have been otne whelher as Iain r iefo ⁿdan or whnsp YrYt, <Pⁿ before the court may be t necessary in order to enable the court effectually and completely to adjudtcate upon and settle all questions involved in the suit be added". (emphasis added).

25 Here the law grants a judgc the authority to use discretion to join a party that he or she deems "necessary".

Generally, appellate courts give preference to a sitting judge's discretion for at least two reasons:

> (i) The sitting judge has a better understanding of the facts and nuances of the case to make an informed decision, and

> > 8

### 0i) As a matter of judicial efficiency, every minor issue of every case should be scrutinized.

However, a judge's discretion is not absolute. He is bound by precedent. In additlon the judge has to abide by the Constitution and Statutes. In all this, his duty to act impartially is overwhelming.

ljnder Articles 28(l) of the Constitution, the judge is bound by the following provisions. 10

> "28(f ) In the determination of civil rights and obligations or any criminal charge a person shall be entitled to a fair, speedy and public hearing before an independent and impartial court or tribunal established by law".

It is argued that since the consent judgement in issuc acted as a constructive tinal judgement, the judge acted functus officio in joining Hassa to the settlement after that judgment.

According to Black's Larv l)ictionary,'functus officio' is defincd as:

"Without further authority of legal competence because the duties of the original commission have been fully accomplished (emphasis added)."

In the Botswana casc of Magdeline Makinta vs Fostina Nkwe, Court of Appeal No. 2612001- Akiwumi J. A, quoting the South African case ol' Odneste Monanyana vs The State, Criminal Appeal No. S of 2O0l (unreported) held:

> "The general principle now well established in South Africa as well as Botswana is that once a Court has duly pronounced a final judgment or order it has itself no authority to correct alter or supplement it. The reason is that it becomes thereupon functus

# 25 ## ⁵ officio. its jurisdiction in the case having been fully and finally exercised its authority over the subject matter has ceased."

Though this is a crif;rinal law .judgement from a foreign iurisdiction, wc find it to be highly persuasive. It also, in our view, embodies the correct statemcnt of the law on the subject.

It is true that even after the consent judgement was signed, the judge's duties were not technically 'fully accomplished' because he had not yet formally set forth the decree of the consent judgement. However, this court finds that the consent judgement should have acted as a constructive final judgement the momcnt it was officially approved and filed into the High Court. This is true for at least two reasons.

First, the consent judgement stated not only that the Attorney Gencral accepted liability, but it was also comprchensive. This shows that it took a lot of time, carc and effort to frame the clauses of that conscnt judgement. Our careful and thorough perusal of the record leads us to the same conclusion. Thc judge should have respected this agreemcnt between the partics. lVhile judges arc supposed to be indepcndcnt arbiters to help the litigant partics reach a fair settlement, ultimately, the parties thcmselvcs should be the main players and have the main onus to decide amongst thcmselvcs what is fair. 20

In Steven Kasozi & 2 others vs People's Transport Service SCCA No.27 of 1993, the court held:-

> "In cases involving disputes artsing out of judiciary relationships, the court must sanction the compromise arrived at by counsel or the parties involved....,"

Set: also East African Insurance Co. Ltd represented by Kartende Sempebwa vs East African Insurance Co. Ltd represented by Sebalu, Lule and Co.

⁵ Advocates and Attorney General and Ms Sam K. Njuba Civil Application No.2 of 2OO2.

N,loreover, the High Court was rvell aware of Hassa's cxistencc and possiblc claim of the ten trucks whcn the corlrt accepted the conscnt judgement.

Thus, in accepting the consent judgement, the court was essentially confirming that the settlement was fair and acceptable without Hassa as a party. 10

Secondly, case law supports the finality of consent judgements. According to The Attorney General and the Uganda Land Cortmission v James Kamala, Civil Appeal No. 08 of 2004, consent judgements are treated as fresh agreements and may only be interfered with on limited grounds such as illegality, fraud or mistake. The very narrow circumstances where a consent judgement may be challengcd confirm that such a judgement acts as a final decision.

In his The Code of Civil Procedure 5'n Edition (1908) at page 388, Prof.(Dr.)S. Venkataraman, has this to say in relation to the Indian Civil Procedure Order I rl 0(2) which is in similar terms as our Order I r.l0(2) (supra)

> The use of the expression at any stage of the proceedings in O.1 r.1O (2) shows that the power vested in the court under it can be exercised only when the proceedings before it are alive and still pending. Once the adjudication itself of all the disputes in the case is over, this provision cannot be made use of by any party"

The consent judgement of the 2"" Septemebr 2005 was such a final adjudication of all the disputes in HCCS No. 719 of 1997. 30

⁵ On the facts beforc us, there is no evidence of any, illegality, fraud or mistake that would merit a consent judgement to be overturned, altered or amcndcd.

Since thc conscnt judgement constructively actcd as a final .judgement, and therc was no cvidcnce of illcgality, fraud or mistake to merit altering it, the iudge acted in functus officio by adding Hassa as a party to that conscnt .judgcmcnt. Hc had no more jurisdiction in the mattcr. I-le, therefore, acted u n c on sti tutionally.

Further and most significantly, a consent judgement with the blessing of the Attorney General could not be impeached except on the aforementioned grounds.

Under Article 119 (3) of the Constitution, the Attorney General is the Principle Legal Advisor to the Government. His legal opinion is generally binding on Government and all public institutions. He has capacity to sue and be sued on behalf of the Government. He had been sued in this case for and on behalf of the Government. He admitted liability and opted to enter and sign a conscnt judgement aftcr thorough and comprehensive consultations with all the concerncd government departmcnts. Bank of Uganda vs Banco Arabe Espanol SCCA No.8 of lg98 is very instructive in this regard Kanyeihamba, . JSC, (as he then was), stated: 15 20

> "In my view the opinion of the Attorney General as authenticated by his own hand signature on an agreement or other legal transaction should be accorded the highest respect by Government and public institutions and their agents. Unless there are other agreed conditions, third parties are entitled to believe and act on that opinion without further inquiries of verification."

⁵ Sce also Dhikusooka Majidu & 12 others vs The Attorney General Constitutional petition NO. f0 OF 2009, where the legal opinion of the Attorney General was upheld by the Constitutional Court.

I\'lost recently, His Lordship Chief Justice B. Odoki reaffirmed this position in his judgement in Civil Appeal No. 6 of 2008, Godon Sentiba and others vs Inspectorate of Government. All thc other Justices on the panel agreed nith the Lord Chief Justice.

In the instant case the Attorney General's opinion in this matter is dated the I" August 2005 and reads in part:

> ".................'fhe btal loss of earnings would now be shs. 9,196,000,000/: + shs 24O,OOO,OOO/=. Equaling shs. 9,436,OO0,000/:.

> I have rejected the progresstve and cumulative approach of earnings. I have also rejected the punitive damages and the imputed tax liability. However, a settlement out of court is also beneficial to Government. I would thereof recommend that we apply the law of averages to loss of earnings.

> Therefore, it would be sks. 16,294,750,000 + sks. 9,4 36,000,00O/: + 2 = 1 2, 865, 3 7 5,OOO/=............

> 7O: Wherefore, the final figure which I would be able to defend in an out-of-Court settlement would be as follows:

a) Replacement cost/value of 1O

trucks. .. ..... Shs 1,32O, I 72,842:.

b) Loss of..................... 1 2,865, 37 5,OOO=

c) Costs 300,000,000:

⁵ Total Shs. 14,485,547,842=

77: I advise that you advance the matter to the next stage along the lines suggested in Paragraph 1O hereinabove.

Sgd. Hon. Dr. E. Khiddu Makubuya MP.

Attorney General-Minister of Justice and Constitutional Affairs".

This was endorsed by the learned counsel for the l-'Petitioner and for the 3"r, 4"'and 5'h plaintiffs in HCCS No. 719197 as well as the Solicitor General N{r. L. Tibaruha and the Judge on 06/09/05.

- The above communication of the proposed settlement out of court to the Solicitor General by the Attorney General is dated l-'August 2005. By this timc, Hassa had dropped out of the case. It had re-routed its claim to the commercial Division of the High court from where the matter was subsequently dismissed. 15 - The High Court Civil Division was wcll aware of the 10 trucks whcn . Judge Tabaro accepted the consent judgement of the 2''' September 2005. 20

In adding Ilassa to thc court .judgenrent thc judgc purportedly fortificd his action by citing Scction 82(b) of thc Civil Procedure Act (Cap 71) rvhich statcs:

> "Any person consid.ering himself /herself aggrieved by a decree or order for which no appeal is allowed by this Act, may apply for a review of judgement to the court which passed the decree or made the order and the Court may make such order on the decree or order as it sees fit".

At some level, this Court s),mpathizes with thc iudge's decision to add Hassa as a party. Perhaps the learnedjudge belicved that Hassa had somc possessory 30

- ⁵ interest to the confiscated trucks in question and was legally entitled to ^a portion of the settlement damages. Although we may not necessarily share this view, this court has no doubt that the Judge acted in good faith and within rvhat he believed was the 'fair' thing to do. However, being an impartial judge sometimes means putting priority to following the rules rather than being'fair'. - According to Attorney General, Uganda Land Commission v James Mark Kamoga & Anor (Supra) the rule is vcry clear; a consent judgement can only be assailed in cases of illegality, fraud or mistake. There is no such evidence in thc instant case. Moreover, there is a distinction between joining a party to allow that party to fully and fairly litigate a claim as opposed to joining a party because a judge feels strongly that a party should be awarded damages. 10 15

There were several alternatives the learned judge could have resorted to other than unilaterally adding Hassa to the settlement agreement. The judge could have declined to endorse the consent judgement dated 2/09/2OO5. Alternatively, if the judge felt Goodman was receiving too much, he was in ^a position to persuade the parties to consider reducing the damages to what he deemed adequate and reasonable in the circumstances before endorsing the consent judgement. He could have even a-llowed Hassa to join as a party prior to the consent judgement, (after, of course, receiving the consent of, or properly involving all the litigating parties). This would make the polnt that probably Hassa had a duty to litigate. 20 25

Although courts havc a genererl duty to each party to bc impartial and fair, they do not havc a special duty to hold either party's hands and walk a party through the litigation process. The judicial system does not have the time or rcsources to do a party's due diligence.

Givcn that Hassa was a party to the underlying case since 1997, it must have been aware of the risk of not joining in the case at an appropriate stage. Hassa should havc known that there would be competing intcrests with Goodman and the other litigating parties. Therefore, when Hassa waitcd for nearly two years 30

⁵ after having its case dismissed from the Commercial Court, Hassa assumed ^a risk and has no one else to blame but itself, for the consequences. Hassa cannot .lustifiably expect this court to grant its desire to benefit from the consent judgement settlement (which desire it conveniently developed after the major litigation was finalized) and reap the fruits of that judgement. This Court docs not endorse Hassa's 'wait and see' attitude 10

In conclusion, the learned trial judge acted contrary to Articles 26(2) and 28(l) of the Constitution whcn he joined Hassa as a party to the already approvcd consent judgement without a hearing to Goodman and other litigating parties, and acted without jurisdiction, when he allocatcd to Hassa part of the settlement damages. We therefore, find in the affirmative on issue No. 2.

## Issue No.3

This issue is about dcclarations and redress.

l. The following declarations are hercby granted.

- (i) That the acts by the learned trial judge complained of in paragraphs I (a),(b,)(c), (d) and (e) of the petition are un Constitutional, - (ii)That all proceedings conducted by the learned trial judge from the 2"u September 2005 after the filing into court of the consent judgement of the same date are unconstitutional, null and void abinitio. - 2. The following orders of redress are hereby grantcd: 25 - (i) That all the proceedings conducted by the learned trial judge from the 2'd September 2005 to tlte date hereof be and are hereby expunged from the court record.

(ii)That the petitioner is at liberty to undertake execution processes in respect of the consent judgment of the 2\*r September 2005 in

High Court Civil suit No. 719 of 1997 the subject of this petition with interest at the rate of 24% p.a from the date of that judgment till payment in full.

(iii) The petitioner be paid the costs of this petition and a certificate for two counsel is hereby granted.

It is so ordered. $10$

$\bullet$

$\mathsf{S}$

Dated at Kampala this...28^th ...day of ... October ...2010

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**A. E. N Mpagi-Bahigeine** 15 **Justice of Appeal**

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C. K. Byamugisha 20 **Justice of Appeal**

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25 S. B. K. Kavuma

**Justice of Appeal**

## A. S. Nshimyc

. Iustice of Appeal

NI. S. Arach Amoko

. Iustice of Appeal