Whereas court process is lengthy and often boring to some, judgments and orders of court are intriguing. Whether or not it is favourable, a court judgment has a protocol it follows. Judges are bound by what they decree, sometimes conscious of their decisions. Still, they must pronounce themselves on the law. The outcome, as always, is disputed by any side that may feel aggrieved.
Orders come from judgments. Judgments are made after hearing a case, establishing facts, considering the issues of law relating to the facts and making decisions as the law dictates. In ordinary court hearing, the composition is a fundamental requirement. A full bench is imperative in order to make a binding decision. This is the final decision.
Since court hearings take time, parties may not wait long for the final decision to determine how some obligations are made. For instance, cases involving perishable goods usually outlive the goods which are the subject matter. In such rare circumstances, Court may grant an order to an applicant to use or sell the goods and deposit the income in the Court account. This money will be given to the party the Court determines is entitled to it.
Delivering a judgment and making an order can be confusing to the public that barely has knowledge of how courts operate. If the orders are to be given by a fully constituted bench (all judges), they are rarely questioned.
After consenting to the Treaty for the Establishment of East African Community (the Treaty), many Court processes became uniform especially on matters touching on judgments and orders. And while handling contentious matters across East Africa are uniform, the assumption that the court acts on behalf of the Community is true to the extent that judgments and orders are enforceable in any member states. The Court has Rules of Procedure from whence the characteristics of judgments and orders are to apply to all cases despite the country that presents them.
This brief article generally discusses court judgments and orders and how they are treated in law in the East African Court of Justice, in case you are curious about the decisions from this Court that are binding the region. It is also important to note that this Court’s position is similar to all national courts.
Article 42 of the Treaty gives courts the autonomy to exercise court procedure in a certain manner.
Under Part IV, Rule 66 of the East African Court of Justice Rules of Procedure, judgments are;
- Delivered within 60 days from the conclusion of the hearing of the case, except where the Court is unable to do so. Some circumstances that may render Court unable to deliver the judgment are ‘force majeure’ (unforeseen natural occurrences) and the ones court agrees to as hindering factors. This is left to Court to determine.
- Court can give its judgment on the very day the matter is concluded or at some future date. It must be communicated to avoid errs in procedure.
- A judgment may be made without giving reasons. The Registrar of Court must therefore give a date when the reasons will be given.
- Only one judgment is given. It is the final judgment of Court. It is binding on the parties. It is signed by all judges that participated in it.
- A dissenting judge is not required to sign the judgment. She may write her own dissenting judgment
- It must also have the following;
- Be dated the day it is read,
- Contain the names of the judges involved,
- The names of the parties,
- The names of the advocates and agents of the parties, if any. Agents include Attorneys having authority vide a Power of Attorney to represent parties.
- Summary of the facts of the case,
- Issues of contention that Court handles,
- The final decision made on each issue,
- The reasons for giving such decision
- The award of damages or, the issue of how costs will be incurred.
- Both the Court judgment and the dissenting judgment must be sealed with the Court seal as proof of the Court’s pronouncement on the matter. Later, it becomes the official decision that a winning party uses to enforce his/her rights, or, the losing party uses to appeal the decision.
- Court retains the judgment in its registry. Parties get certified copies of the judgment.
Rule 67 provides that an order must be an embodiment of the decision of Court. It must be dated the date of delivery of the Court decision, giving particulars of the case and specifying the relief granted by the Court.
Correcting judgments and orders (Rule 68)
Judgments and orders may have errors. It is not Court’s intention but it happens. Some errors may be fatal and can only be corrected on appeal. Others, however, are clerical mistakes.
Judgments can be corrected before or after they have been embodied (included) in an order. The Court may do this on its own motion, or after any party has filed an application to do so.
Orders may be corrected by the Court or on application by a party concerned at any time. The major reason for correction is usually non-correspondence of the order to the judgment. Where a judgment has been corrected, an order will be corrected to match the judgment.
Every person concerned has the right to be heard before the correction is done to avoid unfairness in court process.
Review of the judgment (Rule 70)
Review, under Article 35 of the Rules of Procedure may be done if any of these circumstances occur;
- Discovery of new and important evidence not within the knowledge of the party disclosing it,
- new evidence was unattainable at the time of the hearing,
- evidence was not in the party’s possession due to an unavoidable mistake, fraud,
- An injustice occurred that changes the facts.
The party intending to apply for review of the judgment may do so without delay and prove the grounds for review. Court ascertains the arguments tabled and if it thinks fit, may re-hear the case or give orders accordingly. The latter decision is final.
NB: Time is important. Any delay may not help the applicant since the respondent may have already acted upon the previous order.
Interim orders and directions of the Court (Rule 71)
These are orders made by Court before conclusion of a case. The word ‘interim’ means temporal or provisional.
Under Article 39 of the Treaty, Courts entertain applications from parties to a case seeking a temporary status of matters until the hearing date is set. All applications are supported by an affidavit which notifies Court of the detailed reasons for seeking such status.
The decision is the Court’s to determine.
If it is granted ex-parte (only one party to the case applies without the presence of the other party), it is effective once and cannot be extended. Court is supposed to fix a date for hearing both parties on the same application before expiry of thirty (30) days.
The party that disobeys the order is held in contempt of Court and may pay a fine.
Executing judgments and orders from the East African Court of Justice
The Treaty premises its operation on adherence of member states to common practice. Therefore, Rules of Civil Procedure in any partner state where execution of the order is to take place are followed.
The process of making, correcting and executing judgments and orders in the East African Court of Justice does not vary from mainstream court process. It is only hindered by non-adherence to the region’s integration and complete harmonization of the Community.
Given the awakening of legislative representation in the East African Parliament, it is fair to state that the Court’s decisions will be binding as long as the judiciary, legislature and executive structures among member states agree on how they are exercised.
Yes, it is possible to file a case in the East African Court of Justice and get a judgment/order you can execute in the country where you sought your remedies.
BY ATUHAIRWE AGRACE
This article appears in our digital law magazine, The Deuteronomy Vol 3, Issue 1 of March 3rd 2017
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