‘Limping and irrational’ decision overturned on appeal by East African Court

11 June 2020 · Carmel Rickard

A strange application brought to the East African Court of Justice by Burundi has completely unraveled. Burundi had argued that the Speaker of the East African Legislative Assembly was not properly elected. Failing before the trial court, Burundi challenged the court’s decision - only to have its legal team slated on appeal. Not just that: the initial costs order was overturned and Burundi must now pay the legal costs of both the trial and the appeal.

Read the judgment

Apart from the outcome itself, this appellate judgment of the East African Court of Justice has three interesting ‘moments’, including two where the court does not hesitate to criticise counsel involved in the dispute before it.

The case was brought to the trial court by the Attorney General of Burundi who complained that the Speaker of the East African Legislative Assembly had not been validly elected because the correct quorum requirements were not observed. But the case ran into difficulties because the application was grounded on claims supported by two affidavits, both sworn by an official in Burundi’s ministry of justice. That official was also counsel who was conducting the case before the court.

Among other findings, the trial court held that the affidavits were inadmissible and had to be expunged from the record. The court also made no costs order, saying the case had been decided on a ‘legal technicality’.

Error

Dissatisfied, Burundi appealed. In their decision the appeal judges explained – not for the first time – the difference between an error of law and a procedural irregularity.

Agreeing with the trial court that the affidavits by counsel had to be struck out, the appeal judges said it was ‘impermissible and improper’ for an advocate ‘with personal conduct of a matter to swear an affidavit as to contested factual matters’ and that any such affidavit would be struck out.

Explaining the reasoning for such an approach, the judges wrote, ‘Advocates are, first and foremost, officers of the court. They are expected to discharge their duty to the court with independence in the interests of the administration of justice. Advocates appearing in court are not agents of the parties but their representatives and, as such, they exercise an independent mind.’

Polluted

‘The independence of the Bar is a cardinal tenet in the legal profession. By swearing an affidavit in a matter she or her is conducting, the advocate drops his mantle of independence, steps down from his exalted position at the Bar and becomes a witness subject to all the vagaries of witnesses, including being found to be untruthful. That would obviously be in conflict with his role as an independent and trustworthy officer of the court. Such conduct is unseemly, nay, indecorous and the courts do not brook it.’

A court had to strike out inadmissible evidence to ensure the ends of justice and prevent abuse. If inadmissible evidence were allowed to remain on record, ‘a grievous wrong would be committed, in that evidence without probative value … but sodden with prejudice … would be part of the court’s record with the result that the stream of justice would be polluted.’

In some senses, the next point made by the court was even more dramatic than its reference to the potentially polluted streams of justice.

Deplore

Counsel for the applicant had referred the court to a particular case and spelled out by way of submissions what that case apparently held. But the court could find no such holding in the case to which counsel had referred.

‘We have read and re-read the authority cited and which was annexed to the Appellant’s submissions. We can find no such statement of the law in any paragraph or page of the said judgment by the Supreme Court of Uganda. In the circumstances, we cannot but deplore the conduct of Counsel for the appellant in misleading the court on the jurisprudence of that particular authority.’

Having upheld the trial court’s findings on the original dispute, the appeal judges had to deal with the original costs order. True, court had discretion on costs, said the appeal judges. But the question for the appeal court to consider was whether the trial court had exercised its discretion judicially in either awarding or declining to award costs to the successful party.

Technicality

The reason given by the trial court for declining to make any costs order was that the case had been ‘determined on a legal technicality’.

‘We think it was irrational to deny the successful litigants their costs for the reason that the Applicant had lost on a technicality.’

‘Cases are lost either on technicalities or the merits. A loss is a loss whatever be the reason. We know of no authority, and none was cited to us from the jurisprudence of this court or any other persuasive jurisprudence, that a party who wins litigation on a technicality should not get costs.’

In any case, the reason for the dismissal of the case ‘was not a technicality’. Moreover, the trial court judges had not explained the circumstances they took into account when they justified the costs order with reference to the ‘intrinsic circumstances of the case’. ‘To our mind, to place reliance on factors which are not disclosed is irrational and therefore an improper exercise of judicial discretion.’

Limping and irrational

The reason given by the trial court for denying the successful parties their costs could not be said to be an exceptional reason such as to justify the decision. ‘Nay, it was a limping and irrational decision which ignored the relevant procedural history of the matter and which we regard as unjudicial exercise of discretion.’

The appeal judges therefore found the trial court should have awarded costs against the applicant.

All in all, then, not a particularly good outing at the EACJ for Burundi.

Carmel Rickard

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