Obote v Uganda (Criminal Application 1 of 2017) [2018] UGSC 84 (26 April 2018)

## THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA AT KAMPALA

## (CORAM: KATUREEBE C. J; ARACH-AMOKO; OPIO-AWERI; MUGAMBA; JJ. S. C; NSHIMYE; AG. J. S. C;)

# CRIMINAL APPLICATION NO: 01 OF 2017

#### OBOTE WILLIAM:::::::::::::::::::::::::::::::::: APPLICANT

#### VERSUS

UGANDA :::::::::::::::::::::::::::::::::::

(*Arising from Supreme Court Criminal Appeal No. 1 of 2017*).

# **RULING**

This Application by an Amended Notice of Motion is brought under Article 132(4) of the Constitution and Rules $2(2)$ as well as $35(1)$ and $(2)$ of the Rules of this Court. In the Application the Applicant seeks to be granted the following reliefs:

- $(a)$ *The applicant be heard on the Review of judgment* - Consequential direction be issued to regulate entitlement of the $(b)$ corrected judgment'.

An affidavit sworn by the Applicant supports this Application.

## **Representation**

$\mathcal{L}_{\mathcal{A}}$

In the Application the Applicant chose not to have legal representation. He chose to represent himself. The Respondent was represented by Mr. Patrick Mulindwa, Senior State Attorney. Both parties relied on their written submissions earlier filed with this court.

# $\mathcal{E} = \frac{1}{\sqrt{2}} \mathcal{E}$ **Background**

The Applicant was on 15<sup>th</sup> April 2009 convicted by the High Court sitting in Lira for the murder of his wife. Consequently on 21st April 2009 he was sentenced to life imprisonment. He appealed to the Court of Appeal against both conviction and sentence. That appeal was dismissed on 22<sup>nd</sup> May 2014. The Applicant later appealed the decision of the Court of Appeal to this court. On 1st February 2017 that appeal too was unsuccessful. This Application for review is in the wake of that final appeal.

# **Arguments**

The application seeks to have this court's decision on appeal reviewed, basing on the laws which are cited herein.

Article 132(4) of the Constitution ordains:

'The Supreme Court may while treating its own previous decisions ......normally binding, depart from a previous decision when it appears to it right to do so; and all other courts shall be bound to follow the decisions of the Supreme Court on questions of Law'.

Rule $2(2)$ of the Rules of this Court provides:

Nothing in these Rules shall be taken to limit or otherwise affect the inherent power of the court, and the Court of Appeal, to make such orders as may be necessary for achieving the ends of justice or to prevent abuse of the process of any such court and that power shall extend to setting aside judgments which have been proved null and void after they have been passed, and shall be exercised to prevent an abuse of the *process of any court caused by delay'.*

Then there is Rule 35 relating to correction of errors. It reads:

$(1)$ A clerical or arithmetical mistake in any judgment of the court or *any error arising in it from an accidental slip or omission may, at*

any time, whether before or after the judgment has been embodied in an order, be corrected by the court, either of its own motion or on the application of any interested person so as to give effect to what was the intention of the court when judgment was given.

An order of the court may at any time be corrected by the court, $(2)$ either of its own motion or on the application of any interested person, if it does not correspond with the order or judgment it purports to embody or, where the judgment has been corrected under sub-rule (1) of this rule, with the judgment as so corrected'.

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The twelve grounds comprised in the Amended Notice of Motion read as follows:

- 1. THAT it is a Constitutional provision for the Supreme Court to depart *from its previous decision when it appears right to do so.* - 2. THAT Supreme Court has inherent powers to revisit its decision for the *purpose of achieving the ends of justice.* - 3. THAT the Director of Public Prosecution instituted criminal *proceedings and took over the case against me.* - 4. THAT Justice Byabakama Mugenyi former Deputy Director of Public Prosecutions convicted and sentenced to life imprisonment from High Court sitting at Lira on the 15<sup>th</sup> April 2009 presided over by. - 5. THAT Justice Richard Buteera former Director of Public Prosecutions was among the three panels of Justices of Court of Appeal who heard and dismissed my Appeal from Court of Appeal. - 6. THAT Supreme Court can correct its orders so as to give effect to what *was the intention of the court when the judgment was passed.* - 7. THAT in my Supreme Court amended written submissions, I consistently argued the court to qualify the sentence to a predictable *manifest intention of court when it was passed.* - 8. THAT I emphasized the Supreme Court considers material factors to ascertain the intention of the qualification or made a declaration to the sentence.

- 9. THAT I stayed on remand for 4 years 1 month 8 days, the period the *ambiguity of the sentence denied me the entitlement.* - 10. THAT I have been in prison for 13 years, an equivalent to a 20 years *sentence with remission.* - 11. THAT the Supreme Court confirmed the conviction and sentence vide Supreme Court Criminal Appeal No. 12 of 2014 dated 1<sup>st</sup> February 2017 without addressing the intention of the judgment when it was passed by *the High Court.* - 12. THAT after the confirmation of the judgment by the Supreme Court the prison authorities rescind my released date indefinitely without court order.....'.

In reply it was submitted for the Respondent that the Application for review raised no triable issues. Counsel then referred to where the Applicant alleged that Justice Byabakama Mugenyi and Justice Richard Buteera, both of who earlier served at the Directorate of Public Prosecutions, should not have tried a case in which the Applicant was involved because they could have been biased. He argued that because the matter was not raised in the grounds of the application the issue was misplaced.

According to the Respondent the application is defective and should be dismissed for lack of merit.

# **Resolution**

$\mathcal{L}^{\star} = \mathcal{L}_{\star}$

This court determined Criminal Appeal No. 12 of 2014. It dismissed that appeal on $1^{st}$ February 2017. That should have been an end to this matter but for this Application. In Orient Bank v Fredrick Zaabwe, **Civil Application No. 17 of 2017 this court observed:**

'the decision of this court on any issue of fact or law is final so that the unsuccessful party cannot apply for its reversal... ... ... ... ... ... ... ... ... ..

$\mathcal{L}_{\mathcal{A}'}$

........ under rule 35(1) this court may correct inter alia any error arising from accidental slip or omission in its judgment, in order to give effect to what was its intention at the time of giving judgment'.

Later in Civil Application No. 06 of 2009 Fang Min vs Dr. Kaijuka Mutabaazi Emmanuel this court held:

.... It is therefore, now fairly well settled that there are two circumstances in which the slip rule can be applied namely:

- (1) where the court is satisfied that it is giving effect to the intention of the court at the time when the judgment was given; or - (2) in the case of a matter which was overlooked, where it is satisfied beyond doubt, as to the order which it would have made had the matter been brought to its attention'.

We note that besides the slip rule in Rule 35 of the Rules of this Court the Applicant invoked Rule 2(2) relating to the inherent power of this Court. Indeed in NPART vs General Parts (U) Ltd, Misc. App No. 8 of **2000** this court observed:

The jurisdiction of this court to recall its judgment and correct or otherwise alter it, however, is not limited to the slip rule. It may, also be exercised under its inherent power, which is set out in $r.1$ (3) of the Rules of this Court as follows:

"(3) Nothing in these Rules shall be taken to limit or otherwise affect the inherent power of the Court, and Court of Appeal to make such orders as may be necessary for achieving the ends of justice or to prevent abuse of the process of any such court, and

that power shall extend to setting aside judgments which have been proved null and void after they have been passed, and shall be exercised to prevent an abuse of the process of any Court caused by delay."

$\cdot^*_{\cdot\cdot\cdot\cdot\lambda_1}$

Consequently, we are inclined to agree that, where appropriate circumstances exist for the exercise of its inherent power, this court would not be inhibited by r.29(1) to receive additional evidence...'.

Clearly in an application such as this one we are bound to consider whether the judgment in issue is null and void or whether as a result of any error arising from accidental slip or omission it is necessary to correct the judgment in order to give effect to the court's intention. None of these is apparent.

We have carefully gone through the Application submitted as well as the written submissions from both the Applicant and the Respondent. We find no merit for granting this application. Instead we view it as a bland stratagem to have this court sit in judgment of its settled verdict. Of course we decline to fall prey. However we consider it our responsibility to discourage such ruses. In Lakhashmi Brothers Ltd v R. Raja & Sons, [1966] EA 313, 314 the Court of Appeal for East Africa per Sir Charles Newbold . P. aptly observed:

.... There is a principle which is of the very greatest importance in the administration of justice and that principle is this: it is in the interest of all persons that there should be an end to litigation'.

We agree. This court has no jurisdiction to entertain an application of this nature. It is accordingly dismissed.

$26\pi$ .......day of $\mathcal{A}$ pm 2018. Dated this ............

HON. JUSTICE BART KATUREEBE **CHIEF JUSTICE**

HON. JUSTICE ARACH-AMOKO JUSTICE OF THE SUPREME COURT

HON. JUSTICE OPIO-AWERI JUSTICE OF THE SUPREME COURT

HON. JUSTICE PAUL K. MUGAMBA JUSTICE OF THE SUPREME COURT

HON. JUSTICE AUGUSTINE NSHIMYE AG. JUSTICE OF THE SUPREME COURT