Fred Muwema – The Investigator News

Differing Court Decisions: The Reason for the Backlog of Over 50000 Cases on Our Plate is the Absence of a Policy on Conflicting Court Decisions

Fred Muwema — Sat, 15 Apr 2023 21:43:06 +0000

By Fred Muwema

On the 24^th 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 [1967], 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.

The Writer: Fred Muwema (Courtesy Photo)

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.

Just Like We Told You: Patrick Bitature`s Statement Affirming ignoring Jesus’ Counsel Gives Credence to Ours

Robert Ndawula — Mon, 30 May 2022 20:46:20 +0000

What was a humble story carried by the Investigator to drum up peace talks above litigation, did prompt businessman Patrick Bitature to issue a public statement buying into our position! Bitature states, via the statement, his readiness to embrace reconciliation on the way to settling his long-standing debt affair with the South African money lenders.

This website used the Holy day of Sunday to urge Bitature and the South Africans to sit together with a view to reconcile their issues as opposed to exposing their dirty linen in the public courts. Our story titled; “Sunday Flashback: Bitature, South Africans Snubbed Jesus’ Counsel, Now See the Mess They Have Mugged Selves with,” was drawn largely from that one of Jesus Christ urging his followers to desist from allowing their differences to be resolved by earthly judges.

We also used the example of emeritus Justice James Munange Ogoola who, during his time as the founding boss of the commercial section of the high court, used to urge litigants to sit together and resolve their differences. Ogoola is credited for having established an arbitration court at the commercial court. This arm of the business court, have helped to settle many commercial disputes in an amicable manner, and hence, repaired hitherto broken business relationships.

Bitature’s debt crisis has been given derogatory interpretations by many Ugandans on social media. From labeling him a crooked debtor to cataloguing him an untouchable loan defaulter being backed by big people in government. He has been subjected to all such derogatory treatment. Bitature’s such bad relationship with his financers has also been causing problems for people who are innocent parties.

For making a ruling, indicating how the loan transaction was invalid since the lenders breached the law while issuing out the loan, Justice Musa Ssekaana ended up being labelled a buddy of crooked borrowers. For representing Bitature, lawyer Fred Muwema himself ended up being labelled a crooked lawyer. Not only that, Muwema was also ordered by Justice Stephen Nsubuga to pay unspecified legal costs for allegedly misleading Bitature into resisting attempts by the money lenders to criminally prosecute him over the same loan.

Yet Muwema’s only sin was to advise the judge that his client couldn’t be criminally prosecuted, at the same time, when the same matters are being subjected to arbitration. And also, when the money lenders are appealing against Justice Sakana’s ruling. But now that Bitature is agreeable to settling these matters amicably, we can only hope and pray that his accusers are going to turn the favor. In any case, the arbitration was made part and parcel of the agreement via which they lent money to Bitature.

For the reason that London was chosen by the parties as the neutral ground where to hold such reconciliation talks, would remove any doubts about the partiality of the process since none of the parties is a resident of London.

Fake Auction: Court orders against planned Patrick Bitature Properties `Sale` as Lawyers Strip Selves of Wisdom

Robert Ndawula — Wed, 18 May 2022 18:40:54 +0000

KAMPALA, Uganda: This morning the country woke up to a disturbing advert regarding the planned auction of a number of prime properties belonging to city businessman Patrick Bitature. Hundreds of Ugandans who read the advert, immediately contacted us for what was going on.

They did so because we had only last week, ran a story where the judge had declared as invalid, the loans for which the auctioneers were now advertising Bitature’s properties for auction. The story titled; “Must Read Big Story: Tycoon Patrick Bitature Floors South African Loan Sharks in Fraudulent UDS30M Transaction,” ran in these pages on May 11^th 2022.

Justice Musa Ssekaana issued the ruling declaring the loan transactions to have been invalid. The judge observed that the South African-based Vantage Mezzanine Fund 11 Partnership, breached the law by issuing the purported loans without registering with the Ugandan relevant authorities first.

In light of the judgement, and upon reading the advert announcing the auction of the securities Bitature supposedly staked with Vantage, Ugandans quickly reverted to ask which is which. They were right. In our quest for answers, the Temple of Justice came in handy. A summarized extraction out of the big ruling delivered by Justice Ssekaana had the ripostes clear.

The three paragraphed ruling bearing the names and signatures of the judge, unambiguously dismisses the loan transaction as having been invalid. It is therefore as obvious as night follows day that whatever else that sprang from the invalid transaction was also by that ruling, invalid to the letter. One even doesn’t need to be a PHD holder of law to figure out this gist.

“The judgement is very clear. The lawyers of the moneylenders are simply posturing around, hence in the process, misleading their clients into believing that they are actually doing something to bring to life, the long dead case,” a senior lawyer opined. The legal mindwondered how the eminent firm of lawyers representing the losing party can go on and breach the court judgement, well aware that they are supposed to be officers of court themselves!

“Lawyers are supposed to help the court to meet the ends of justice. Following the issuance of a judgment or a ruling, lawyers would either advise the client to appeal, if they have good grounds of appeal, or to accept the judgement graciously.” He further clarifies that lawyers are not merchants of fortune as to misadvise clients to breach the law merely because they are seeking to earn money from them.

In the same breadth, Bitature, through his lawyers of Muwema and Company Advocates, last night issued a full statement regarding the moneylenders` auction attempt stance. Below is the statement in full…

MR PATRICK BITATURE RESPONDS

PUBLIC NOTICE

We act for M/s Simba Properties Investment Co. Ltd, the registered proprietor of Protea Hotel – Naguru SKyz, Elizabeth Royal Apartments and Moyo Close Apartments.

1. Our Client’s attention is drawn to a public auction advert issued by Quickway Auctioneers and Court Bailiffs appearing at Page 9 of the Monitor newspaper of today purporting to offer our client’s abovementioned properties for sale upon the instructions of M/s Kirunda & Wasige Advocates.

2. We wish to inform the general public that the said Advert has been issued without any legal basis. It is a malicious advert whose sole purpose is to alarm and cause irreparable damage to our client’s business and reputation.

3. In that regard, we state the correct position of the matter as follows:

i) Our client’s properties are not liable to be advertised for sale by any mortgagee purported to be represented by Kirunda & Wasige Advocates and Quickway Auctioneers and Court Bailiffs.

ii) M/s Kirunda & Wasige Advocates used to act for Vantage Mezzanine Fund II Partnership, in a long-standing Commercial dispute with our client which was decided against them recently.

iii) The above dispute was settled on the 9th May 2022 by Hon. Justice Musa Ssekana of the High Court when he declared in Misc. Cause No. 205 of 2021 Vantage Mezzanine Fund II Partnership vs Simba Properties Investment Co. Ltd, that Vantage Mezzanine Fund II Partnership is a non-existent legal entity which had no locus standi to file the suit.

iv) A copy of the self-explanatory Court Order which must be respected by all persons is attached for ease of reference.

v) So, from the 9th May 2022, M/s Kirunda & Wasige Advocates ceased to have a client to act for and for that matter, they cannot claim to be instructed to take legal action of any form by or for the non-existent Vantage Mezzanine Fund II Partnership.

vi) The action taken by Kirunda & Wasige Advocates and Quickway Auctioneers and Court Bailiffs tends to disabuse the binding judicial authority which nullifies any masquerade of legal existence by Vantage Mezzanine Fund II Partnership when they unlawfully purport to resurrect it with legal personality rights, whereas not.

vii) The above misguided and unprofessional conduct by the said lawyers and auctioneers undermines the authority of the courts of law to adjudicate disputes between the parties and is also in blatant disregard and contempt of court orders.

viii) Our client has therefore instructed us to exorcise the ghost of the non-existent Vantage Mezzanine Fund II Partnership by taking the appropriate compensatory legal action against its promoters, lawyers, Auctioneers and Monitor newspaper for the offensive publication.

ix) Our client’s well-wishers, business associates and the general public are informed and advised accordingly to ignore the impugned public notice.

Anyone who acts upon the falsehoods and misrepresentation in the impugned public notice does so at their grave risk and peril.

DATED at Kampala the 18th day of May, 2022.

____________________________

MUWEMA & CO. ADVOCATES

(COUNSEL FOR SIMBA PROPERTIES INVESTMENT CO. LTD)

The Proposed Scientific Elections in 2021 may Cause a Constitutional Crisis

Robert Ndawula — Mon, 22 Jun 2020 18:41:56 +0000

The Electoral Commission released a revised roadmap for the 2020/21 general elections where it stated that “mass rallies will not be allowed but campaigns will be conducted mainly through media.” Many people are wondering how a restriction on one aspect of the campaigns i.e. mass rallies, can reduce the whole election into a “scientific election”? The reality is that it is the rallies which have the pull and push power of the campaigns and the campaigns are the gravitas of the electoral process. You literally can not tell when the electoral process has begun until the campaign rallies have begun. So that is probably why the EC can get away with calling the whole election “scientific”.

Because campaigns and their rallies are the amalgam that sticks the whole electoral process together and it is through them that the electorate participates, it becomes a very sensitive issue for anyone to try and remove or restrict the physicality of the campaign activities as we know them. But that is exactly what the EC has promised to do and expectedly, it has come under fire.

The EC has added petrol to the fire by failing to clarify what it means by a “mass rally.” As a result, many people are accusing the EC of trying to emasculate the next general elections and disfranchise them of their right to vote and elect the next leaders of their choice. Probably the EC would save the day and get out of the spot of bother it finds itself in by defining “mass rallies” in terms of a specific number of people.

A month ago, the Government of Benin organized local elections but it banned campaign events and gatherings of more than 50 people. This was a containment measure to stave the spread of the novel Coronavirus. Consequently, candidates had to focus more on media appearances and campaign posters. Unfortunately voter turnout suffered and the credibility of the elections suffered as well. That is the price we may have to pay for any significant restrictions on political campaign rallies.

My concern is that this “scientific election” if it happens, may actually burden the country with an election pandemic on top of the coronavirus pandemic which has overstayed its welcome. There will be an election pandemic because the process will be diseased by the refusal to allow candidates to individually mobilize support for their candidature. An election where candidates are not allowed to meet their mobilizers across the country who may number in the hundreds to canvass support for them is an identity thief of the real election. It will be an election stolen before its delivered if candidates are not allowed to reach out to voters who may congregate in groups in various towns, trading centres and villages. Will the EC treat these meetings and groups as mass rallies and ask the Police to disband them?

Would the Presidential Elections Act 2005 and the Parliamentary Elections Act 2005 which are the principal laws regulating campaign activities continue to be relevant when they still refer to political campaigns as individual public campaigns. It is clear that the framers of the law didn’t have emphasis on scientific campaigns in their mind when they predicated the candidates’ campaigns on their physical activity. Whereas the law makers acknowledged the media as a campaign tool which may be used by the candidate, they never intended to substitute the physical presence of the candidates with radios and televisions. How can the EC possibly substitute something that is so sacred that its withdrawal can virtually empty the whole electoral process.

Under Article 61 of the constitution and S.12 of the Electoral Commission Act cap 140 the mandate of the EC is to preserve the citizens right to vote by ensuring that the entire electoral process is conducted under conditions of freedom and fairness. The EC has powers to regulate the electoral process which includes nomination, campaigns, polling procedures, etc., but it has no power to take away the conditions of freedom and fairness under which the elections must be conducted. There should be no argument about that!

In the Kenyan case of Karanja Kabege Vs Joseph Kiuna Kariambegu Election Petition No. 12 of 2013 (KLR) which was quoted with approval in the Raila Odinga Presidential Petition No 1/2017, the court observed that, “the concept of free and fair elections is expressed not only on the voting day but throughout the electoral process……. Any non- compliance with the law regulating these processes would affect the validity of the election.”

In otherwords, the propriety of the voting process is impacted by the conduct of the campaigns in totality prior to the voting exercise. Otherwise the citizens’ right to vote will lose meaning if the electoral process is fatally tampered with. In the recent case of Kalali Steven Vs EC Misc. Cause No. 35 of 2018. Lady Justice Lydia Mugambe who restored the right of prisoners and Ugandans in the diaspora to vote observed that; “for the right to vote to be meaningful, there must be information regarding who is standing, for what position, their manifestos and other information relevant to the voting.”

In my view, an election cannot meet the conditions of freedom and fairness if the voters are restricted to obtaining all the information relevant to the voting remotely or scientifically. Political campaigns are similar to marketing campaigns where the object of the campaign is to solicit for the endearment and trust of the targeted audience. We may never know how much trust may be lost in the electoral process upon the withdrawal of the physical presence of candidates.

It is risky to underestimate the immense power of a physical candidate as opposed to an electronic candidate in determining the choice of that candidate. The consequences of placing too much reliance on an electronic candidate may be disastrous. It is best we do not experiment the governance of our country with something whose consequences we may not fully understand.

Therefore if the EC insists on restricting the candidates’ campaigns to social media, radios and TVs, the electoral process will not only alienate those without access to that media but it may also lose the confidence of a significant part of the electorate. In the end, the election process and result may not meet the substantiality test which qualifies a valid election. Whereas Courts are used to applying the substantiality test to votes which can be counted, they may not find a measure for the substantiality of trust and confidence in an election. This will present a paralysis of analysis of future electoral disputes by the judiciary and it will lead to a failure of electoral justice.

The health scare caused by the Coronavirus pandemic was a good reason for the EC to delay or postpone some of the electoral activities. However it is legally unsound to use the same Coronavirus as a reason to remove the mandatory conditions of freedom and fairness which are necessary for the conduct of the national elections. You cannot have an election when the conditions of freedom and fairness are removed.

An argument may be made that the presence of coronavirus as a national health emergency should bring limitations to bear on citizens constitutional rights which includes the freedom to assemble at political rallies. I believe there are some rights which are immutable and cannot be derogated by the Coronavirus. The right to food, good health and access to justice are some of those immutable rights. However the right to vote takes on greater significance if an election must be held to secure the governance of the country.

My sense is that it is the national elections which maintain and renew our sovereignty and nationhood. Under Article 5 of the constitution, Uganda is a sovereign state and republic by virtue of the fact that the people under Article 1 of the same constitution express their will and consent on who shall govern them and how they shall be governed, through regular, free and fair elections. This is how Uganda acquires what in juridical terms is called “state rights,” to exist as a sovereign republic.

There is no other way the Government of the state of Uganda can acquire the power and authority to discharge its public functions which includes the power to fight Coronavirus without the endorsement of an election. We cannot trifle or trade off with anything else, the integrity of the process by which the Government obtains its existence and legitimacy under the Constitution. We cannot undermine the integrity of the national election by weaponising measures to contain the Coronavirus. We simply can’t fight the Coronavirus without a Government. In such a case, the national election which puts the Government in place must come first.

If we cannot hold the elections with integrity because of the Coronavirus, then the Government should declare a state of emergency under Article 110 of the Constitution and call off the election. The Constitution provides for a mechanism to avoid a governance vacuum in case that happens. So the EC should rethink its blanket ban on all mass rallies at the next elections and come up with robust standard operating procedures to make the electoral processes safe. Mali, Cameroon, Guinea and South Korea are some of the countries which have held elections with Health safety precautions during the Coronavirus pandemic.

The EC cannot be planning to organize an unfree and unfair election right from the start even before we cast a single ballot. This will not bode well for the country as it may plunge us into in an unnecessary constitutional crisis.

By Fred Muwema

Managing Partner,

Muwema & Co. Advocates