Case Number APPEAL NO. 3 OF 2016

In Reference No. 16 of 2014, which was still pending hearing in the Trial Court, the Applicant (Ronald Ssembuusi now deceased) sought a declaration that Uganda’s criminal defamation law in Sections 179 and 180 of the Penal Code, Cap 120 was an affront to the Fundamental and Operational Principles of the EAC. Subsequently, the Respondents lodged an Application seeking leave to act as amici curiae on the grounds that they had a strong and genuine commitment to promoting respect for and observance of the right of freedom of expression, including freedom of the press and they should therefore be allowed to make submissions in the Reference. The Application was supported by the affidavit of Yakoré-Oulé Jansen. The Appellant, who was the Respondent in the Application, raised a preliminary objection claiming that the affidavit supporting the application was incompetent, based on hearsay and did not disclose the source of information contained therein. In its Ruling of 28th June 2015, the Trial Court only addressed itself to the merits of the Application and not to the preliminary objection, it then granted the orders sought.

On appeal, the Appellant averred that the Trial Court erred in law and procedurally by failing to find that the Respondent’s Affidavit in support of the Application was incurably defective and therefore incompetent. Furthermore, the Trial Court, ignored the issue of the competence or otherwise of the Application and that this amounted to a procedural irregularity leading “to a miscarriage of justice so the impugned Ruling should be nullified as the Trial Court committed an irreversible procedural error.

Date filed
KeywordAmici curiae , Preliminary Points of law , Procedural irregularities
Treaty ArticleArticle 35 A , Rule 21 , Rule 36 , Rule 53

First Instance Judgment

VerdictHaving so held, we make the following final orders: I) Medical Legal Defense Initiative (MLDI) & Others are herby granted leave to join Reference No 16 of 2014, as amici curiae; ii) The said amici curiae are hereby granted leave to submit a joint Amicus Brief in writing in Reference N0 16 of 2014 within such time frame as shall be directed by the Court; iii) The Amicus Brief shall be restricted to issues within amici curiae's mandate and of specific relevance to the Reference aforesaid; and iv) We make no order to costs
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Date deliveredJune 28, 2016

Appeal Judgment

  1. A court seized with a preliminary objection is, first of all enjoined by law to determine that objection before going into the merits or substance of the case or application before it. Failure to do so amounts to an incurable procedural irregularity. A point of law may be argued whether raised in the pleadings or not. Procedurally, the raised point of preliminary objection ought to have been argued and disposed of before the hearing on the merits of the Application.
  2. A court commits an error of law or a procedural error when it: acts irregularly in the conduct of the proceedings or hearing, leading to a denial or failure of fairness, due process; or irregularly admits or denies admission of evidence; denies a party a hearing; or ignores a party’s pleadings.
  3. The Affidavit of Y.O. Jansen was the subject of the preliminary objection. If the Affidavit was found to be incurably defective, then it could not validly support the Notice of Motion. And without a valid supporting affidavit, the Application could not be said to have been competently before the Trial Court. Thus, the Trial Court could not have been properly seized with jurisdiction to entertain and determine the Application on its merits.
  4. It is imperative for the preliminary objection to be heard and disposed of first before hearing the Parties on the merits of the case. Failure to do so by the Trial Court was, “a colossal” incurable “procedural irregularity” envisaged by Article 35A(c) of the Treaty. The procedural error occurred when the Trial Court failed to make a determination on the challenged competence of the Application. No decision or order was made.
  5. Since the Parties were heard in full on the undetermined point of preliminary objection, the Ruling dated 28th June, 2016 is a nullity and it is therefore quashed and set it aside. The Trial Court is directed to re- constitute itself in order to compose a fresh ruling clearly determining the pleaded point of preliminary objection, before considering the merits or otherwise of the Application.
  6. Whereas Article 35A gives unfettered right of appeal against any judgment or order of the First Instance Division, this carries with it the potential for causing delays in the disposal of cases in both Divisions of the Court, thereby rendering the Court’s vision a poetic dream. This is particularly true where the appealed from decision or order does not have the effect of finally disposing of the Reference, Application or Claim. Well intentioned parties are urged to sparingly resort to the right of appeal against interlocutory rulings or orders which are not likely to lead to a miscarriage of justice if no immediate redress is sought and obtained.
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Date deliveredMay 26, 2017