By Fred Muwema
On the 24th March 2023, I saw many lawyers on various chat groups toasting to one decision from the court of appeal, and then tossing to another from the same court 10 days later. The issue was that the same court had delivered contrasting decisions in two separate cases, raising the same legal issue upon similar facts.
In the first case, CA 43 of 2023 URA Vs NSSF, Hon Mr. Justice Oscar John Kihika JA ruled that a single Justice of the court of appeal had jurisdiction to entertain a substantive interlocutory application. This was in respect of an application by URA to stay execution and stop enforcement of a judgement to pay UGX25Bn which it had initially obtained from NSSF. The court dismissed the application with costs.
The second case, CA 860 of 2022; MTN (U) Ltd Vs Occur Odwe Julius Peter, Hon lady Justice Eva K. Luswata ruled that a single justice of the court did not have jurisdiction to entertain an application for stay of execution which had been sought by MTN to try and stop enforcement of a judgement to pay more than UGX500M to the former Deputy Inspector General of Police. Court referred the application to a panel of three Justices which I believe, awaits hearing.
Although the said decisions are in conflict, a careful read indicates that they were all said to be justified by the law and the existing legal principles applied by the court. In Uganda, conflicting decisions do not only arise from the same court. Sometimes a conflicting decision will arise because a court lower in hierarchy will refuse to abide by a precedent set by a superior court. This happens a lot and it tends to debase many cases and leave lawyers and litigants alike, running on empty.
This article does not want to be derailed by a discussion of the merits of either decision. It is intended to explore the phenomenon of conflicting court decisions which pervades most jurisdictions and whose regularity is gaining speed in Uganda. This article asserts that we may all benefit or suffer from conflicting court decisions in one way or the other. However, the effects of this phenomenon, like anything new, comes with its share of pain and anxiety.
I can only imagine that even the judges involved in making conflicting decisions agonize about them and yearn for consensus with their colleagues, and most importantly, consensus which yields to the law. To my mind, conflicting decisions invariably hurt the conscience of the court and it does little to serve judicial economy as well. Additionally, this conflict feeds into the nightmare of Case backlog.
The judiciary in Uganda has reported an annual case backlog of about 50,000 cases. My take is that the absence of a policy on conflicting court decisions is keeping cases longer in the court system. This article therefore, calls for temperance and coherence in court decisions so that the logic and symmetry of the law can be maintained. This is not only possible but it is also absolutely necessary because citizens are entitled to order their affairs on the basis of a certain and consistent understanding of the Law.
We have delegated our understanding of the law to the courts which make enforceable interpretations of the same. We lawyers give advice to our clients on the basis of this enforceable interpretation of the law. However, the clarity of our legal advice is increasingly being blurred by the arbitrariness of some conflicting court decisions.
A uniform application and interpretation of the law by the Ugandan judiciary should answer one of its core values, which is to accord equal treatment to all persons who appear in court, irrespective of their gender, religion, socio-economic standing, etc. This core value is however being devalued by conflicting court decisions which seldom distinguish the precedent they are departing from, as they apparently appear to give preferential treatment to some litigants.
Both URA and MTN in the cases cited above must be feeling some discrimination in the circumstances. On the other hand, NSSF and Mr. Odwe feel that justice was served and I don’t think the apparent conflicting decisions can find space to register with them. Having said that, this article recognizes that a lot of the law, as we know it today, was shaped by the judicial creativity and innovation of some judges who were brave enough to make decisions which departed from the norm.
The foundations of the law of contract, remain in large measure, judge-made, thanks to the industry of eminent justices like Lord Mansfield, the 18th Century Chief Justice of the court of Kings bench in England. His Judgements on contracts, commercial law, Insurance, and unjust enrichment, continue to be cited in courts today.
Creative judges have also been responsible for determining the boundaries of the tort of negligence as we know it today, including, famously, a manufacturers liability to the ultimate consumer (Donghue Vs Stevenson 1932 AC 562). Similarly, damages paid in negligence are based on the judge-made rules on remoteness of damage (Overseas tankship (UK) Ltd Vs Miller steamship Co pty Ltd , AC 617).
Despite the above contribution which often spurs conflicting court decisions, without the constraint of the doctrine of precedent, judge-made law can cause irreparable damage to the rule of law project. The problem is compounded by the fact that the boundary of judge-made law is not precise. This is because it serves an immutable purpose of keeping the law abreast with the socio-economic changes in society.
The consensus appears to be, that judge-made law will be here today, tomorrow and forever. To stave the problem, I recommend that the courts stick to exercising judicial power in conformity with established law, the values, norms and aspirations of the people. This will ensure that the principle of legal certainty and the legitimate expectations of the people are met when handing down court decisions which should have a distinction in promoting Justice. This however, does not mean that consistent court decisions which have been made contrary to the law and the constitution, and which have overstayed their welcome, should not be broken.
In such cases, breaking with the norm may be acceptable only if it is aligned with the expressed will of Parliament and that of the people. The Ugandan Judiciary should purpose to develop guidelines on how decisions which depart from legal precedent can be introduced in our jurisprudence. This proposed policy can borrow from the sentencing guidelines which the judiciary developed for criminal matters. This in my humble view, may hopefully militate against most of the uncoordinated and negative impact we appear to be receiving from conflicting court decisions.
- Counsel Fred Muwema is a Senior Partner at Muwema & Co Advocates in Kampala