[1988] UGHC 2

## NICFLLAWncUP APPEAL KO. ⁸ CF ¹⁹⁸³

SILVER SPRINGS HOTEL LIMITED *\** OTHERS RESPONDENTS/ APPELLANTS

## -VERSUS-.

THE ATTORNEY GENERAL APPLICANT/ RESPONDENT

BEFOREs THE HONOURABLE MR. JUSTICE A. I'. C. ODER

## RULING:

appeal, the appeal\* This is an --appeal by ten (10) appellants against the Attorney General as the respondent under section 14 of the Expropriated Properties Act 1932. Op 20/7/88 when I made a ruling dismissing the Attorney Generails application which sought dismissal or striking out the appeal and setting aside an inter lin injunction which had earlier been granted by this court, I ret dc^n the anneal for hearing not necessarily before me - on 19/9/88. However in between the two dates a notice of motion was filed by M/S Kayondo and Co. Advocates, seeking to join one Glur.salal Dharamshi Gandeeha as a party to the The registrar of this court set down on the same date as

before me. present in time. On the appointed date and time, the registrar placed both matters Mr. Kayondo s.c. for the person applying to be join and (hereinafter called the applicant) and Mr. Mile for the appellants were Mr. sek3ndi for the respondent arrived a little later for reasons which he explained one of which was that the court cause list for that day and not show that the appeal would be heard on the day, nor the judge by whom it was to be heard. A cause list for urgent matters and applications was however produced in court, indicating that the present application was to be heard by me. There were in fact two High Court cause lists for that week: one for suits and the other for applications or urgent matters. The former did list any cause before me, and the latter indicated that the present application was before me on 19/9/38 at 9\*00a.m.

Before the arrival of Mr. Sekandi Mr. Kayondo s.c. Submitted that as his client's application sought to join him as a party to the appeal, it was proper that the application be heard before the appeal was heard\* In his reply\*My\*.. Lule agreed to this but indicated that \$e was opposing the explication for joinder ard that he would preso for security for costs both bcfor he application could be heard end in the event of the application being allowed.

Mr. Keyondo further submitted that as I had been appointed a judge of the supreme courts it would be irregular for me to entertain High Court matters; for the application as well as the appeal were grounded on the jurisdiction of the High Court Mr. Sekandi also said that when he came to court, he did not expect the appeal to be before me, because it should be heard by a High Court Judge\*

As the question of my jurisdiction was a condition precedent for my .hearing of the present application and the appeal. X asked all three counsel to address the issue first. Tor only if I had jurisdiction to do so could I proceed to hear the present application the appeal and the preliminary points which Mr. Sekandi had indicated he would raise and the raise and the question of security for costs raised by the appellants.

was Cn this issue Mr\* Sekandi submitted that it was legal error for this High Court case to be brought by me, a judge of the supreme court. Mr. ^ule submitted that I had jurisdiction to hear the appeal because the appeal was part heard in that during the hearing of the respondent's earlier interlocutory application for dismissal of the appeal. One of the issues in the substantive appeal had been argued by himself and Mr. Sekandi *\** as counsel for the appellants and respondent respectively. The issue was one concerning the judgement of 8/8/84 in HCCS. No. 860/82 in which it decided that plot No. 2/2B^t Kampala Road, Kampaia a subject matter of the present appeal was owned by one of the present appeallants. Further Mr. Bule argued it wpf a rule of practice that where a judge was siezed of a matter and had part-heard case, he would continue to finish it. The practice was so foundamental that even if his terms of office had expired, he was allowed to finish his case. In the instinct case, it was not as if the case was being placed before me for the first time. The objectors had not produced any authority for their contention that I should not further hear this case. If I hea-d the present appeal, 1 would not hear an appeal from it, for it was also a rule of practice that a judge would not hear an appeal against his own decision. As regards the present application, Mr. Lule thought that if I had jurisdiction to hear the appeal, I would also have jurisdiction to hear it. In reply Mr. Sekandi disagreed that the appeal had been part heard. During the hearing of the application which ended with my ruling of 29/7/88, he (Mr. Sekandi) reserved his submission on merrits of the appeal. It was Mr. Lule who had made submission on one of such issues; and had said that the appeal had been part heard. Further, according, Mr. Sekandi, the ruling of 29/7/88 did not touch, the merrits of the appeal. In the circumstance© even if I had not been appointed on the supreme Court, the appeal did not necessarily have to be heard by me, it would have been open to be heard by any judge of the High Court myself or anyother judge. Such other judge would not have declined to hear the appeal on the ground the appeal had been part heard by me. In counsel's view, sicne my appointment

heard case; constitution. judge promoted to the Supreme Court 'o sit and hear cases in the High court, because justice should be seen to be done. as a judge of the supreme court, I had been performing my official functions as such judge# In the circumstances, counsel concluded the appeal should be heard by another judge of the nigh Court. In his reply^f Hr. Kayondc S. C\* submitted that a promoted judge cannot complete a part Ke referred to 0.16 R.10 of the CPR and article 83 of the Moreover, according to him, it is undesirable for a

appeals in that court# that in May 1986, I was I was appointed a justice of the supreme court by an instrument of appointment date 17/6/88. I have not yet, in fact, so far sat to hear There have bean two reasons for this. One is appointed chairman of the commission of Iquiry into violation of Human Kights, charged with the task of inquiring into human rights violations which occurred in Uganda between October 3.962 and January 1986 and making recummesdations connected therewith. The work of the commission is still going on to thiij day. Secondly on 25/6/88 my leg was injured in ^a road accident which neither to has made it difficult for me to sit in a fcrmsl court set up cf a baach of three judges, which would be the case in the supreme court; or even one judge.

In the supreme court. Criminal Appeals session for the period 2nd to 12th August 19'n3, I was listed to participated in the hearing of several Criminal appeals which subsequently h\*d to be adjourned to later dates due, inter alia, to ny leg injury referred to above# It means therefore, that both in law and de fncto, I am now a justice of the Supreme Courts That being the c^se, ir it still within my jurisdiction to h\*»ar the present appeal which was filed in the ^igh Court# That is the only issue here. There appears to be no direct answer to this question in the constitution. Assistance to find the answer to the question. What a justice of the supreme court should do with regard to un completed cases that were immediately before him In the High Court prior to his appointment to the supreme court irny, in my view, be obtained from the provisions of Articles 84, 85 and 89 of the constitution. By article the president may appoint ^a perron qualified for appointment as a judge of the High Court to act as a puisue judge of that court. py article 84(7) a person so appointed shall continue to act for the period of his appointment until his appointment is revoked by the president acting in accordance with the advice cf the Judicial service commission, but ~r\*vided that he may continue to act ae a puisue judge nfor so long as may bo nececsary to enable him to deliver\_jud\_grnent or to do any other thing in relation to procee^in/G th/t were commenced before him nrcviously thereto¹¹ •

• •••/>•

The underlining ife mine. Article 85 (1) provide\* for a compulsory retirement see cf 65 years for a judge of the 'Qgh Court; but 85 (2) provides that a judge of the Hi^h Court may continue in office "For so after ataj.ninr that age ns may be necessary to enable him to deliver judgement or to do any other thing in relation to proceedings, th t were corc r^e ng ^a d b?fore him before he, c,ttwined that age\*¹ • Again the underlining is mine\* Article 89 (?) fc^kes the previsions of Articles 84 and 85 Replicable to ^a justice cf the supreme court. In my view, the combined effect of the provisions of these articles is that where a judge of the ^THgh Court i\* eppointedto the supreme court, his position ns ^a ^igh Court judge with regard to matters or proceedings still before him is equivalent to that of an acting judge cf the ^igh Court whose period of acting rprointment has expired or whose action\*\* appointment has been revoked; and to th.-«t of a judge of the Aiigh Court who has attained the retirement age of 65\* This means that he m\*y continue to dischange the function of ^a Mgh Court judge as may be necessary to enable him to deliver judgment or to do any other thing in relation to proceedings that were commenced before him before his anointment as a justice of the supreme court. The position in England ap.'e^r\* to bo the same as in Uganda in th^t where ^a judge o^p the court of appeal sits - when requested by the Vice Chancel?,or in the High Court as a judge cf the high Court, he must continue to ro sit although his term has expired, for the purpose of giving jv.dgm -nt or otherwise in relation to any case which might hove been hrd during his attendance: Halsbury'^s ^aws of England, 3rd Edition, psras 958-967\* Assistance can be delived from this in construction of Articles 84 and 85 of our constitution in relation to tbe issue under consideration, however Huie 10 of order 16 which Kayondc S. Q. referred to does not appear to applicable or relevant to the instant case\* It provides that where 3 judge is prevented by death, transfer or other cause from concluding the trial of a suit, his successor tnry proceed with the suit from the stage at which his predecessor left it\* The ^rhile appears to be relevant only to suits where a judge has heard only part of the evidence\* The present case was not s suit; still less a suit in which the trial was not concluded\* It Appears therefore that only articles 84 and 85 can throw some light on the issue underconsideration\*

In the instrnt case there is no judgment to be dclversd. The m operative provisions of the above named articles of the constitution appear therefore to be "For fo lonr as m. y be necefCFry sr.-.tle him to \*\*\*\*\*\*\*\* do any other thing in relation to proceedings that were commenced before him (previously thereto" - in the care of the end of an acting appointment) or (befcr he attained that age" • in the case of retirement age of 6.5 years). New can the present appeal be said to have been cowenced before me prior to my appointment as a juntice of the eupreme court?

J

before, end heard by, me. ecore and left the a One issue which related to the merrits of the appeal was also touched on. That was the issue of the binding effect of the judgment in IICCS. No. 860 of 1^82 regarding one of the subject matter of the appeal - ie whether it was a judgment in new and therefore binding on the Government. Both Mr. Sekandi and Mr. lule counsel respectively for the Respondents and the Appel]-mts agreed that that issue was one of the appeal. But this was not before Hr. Lule had submitted on the issue nt considerable length and Mr. Bsekandi had made a brief comment, sayinm that he would argue it fully at the hearing of the substantive appeal. In my ruling of 29/7/88, dismissing the application I agreed with both counsel cn thir issue to be argued and decided upon in the substantive anneal. I could not and did net decide upon it as the ruling was a decision on interlocutory issues. In the circumstances, I consider that the whole of the appeal has not yet been uart - heard or commenced before me, and remains to be heard end decided upon by judge of the ^igh Court. As, in view of my above interpretation of Articles 84 and 85, ¹ could continue as a judge of the High Court only to complete matters or proceedings that were commenced before rne prior to my appointment to the supreme court. I cannot hear the substantive appeal on the merrits unices it was so commenced before me prior to my supreme court appointment. Interlocutory proceedings or applications were commenced before me prior to the apoointment, but not the hearing of merrits of the appeal, which is still open to be heard by a judge of the High Court. If it can be hear on merrits by any judge of the High Court then in view of my changed position, I am precluded from hearing it. Im the result, I rule that I now have no jurisdiction to hear the appeal on the merrits. The same applies to the application for joinder of another party to the appealf which can be heard only by a judge who is in a position to hear the appeal. The appeal was Filed in the High Court ne it should have been. It could have been heard by any judge cf the High Court\* An interlocutory application for a temporary injunction was however commenced befor in the senes that it was placed for hearing before me. I heard and granted the application. Then another interlocutory application seeking to set aside the temporary injunction and striking out the appeal was also placed At the hearing of that application many issues arising from the application were argued.

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At the end of his submission, Mr. Kayondo S. C. said that in the event of conclusion I have reached above, his client should be awarded costs for the 19/9/88 when the issue of jurisdiction was ... A..

**I JI**

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raised. In my view such an application has no basis whatsoever. It was the fault neither of the Appellants of the Respondent that the matter came before me as it did. In the circumstances, I order that all the narties hereto should bear their ov?n respective costs for the appearance of 19/9/88\*

> (SGD) A. II. O. ODER J J D G E. 28/9/88.

28/9/88 9.25a.m.

Mr. ^ekn.ndi for ^eppondent.

Mr. Lule for Appellant?.

Mr. A. Womutuba holding b^ief for Mr. Kayondo for the applicants. Ruling delivered and signed.

> (SGD) A. H. O. ODEil J ⁿ ^D a E.

> > 28/9/88.