Monday, October 3

WHAT IS THE RULING OF THE HIGH COURT ON THE ATTORNEY GENERAL’S AGAINST JUDGMENT IN FAVOUR OF GHOMM?

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QUESTION OF THE DAY

On 29th June, 2020 judgment was entered in favour of Global HOMM in their case against the Attorney General, the Minister of Lands and Regional Affairs and the Director of Lands and Surveys. This simply confirmed ownership of the land by GHOMM and that the state should leave said property. The state did concede to the claims of GHOMM.

However, on 25th October, 2021 the state turned around and filed an application for this judgment to be set aside. This is what led to the ruling of 20th June 2022 of Justice Achibonga of the High Court.

In their application, the state contended that their search at the companies registry indicates that GHOMM does not exist as a legal entity and therefore lacked the capacity to institute the case and as a result the court also lacked the jurisdiction to hear and determine the matter and that the judgment cannot be enforced since GHOMM does not exist as a legal entity.

The court, in its ruling, drew a distinction between capacity and jurisdiction, arguing that while capacity of a party to the suit may change during trial that does not apply to jurisdiction; once a court lacks jurisdiction so shall it be at any time.

The court further stated that the issue of capacity can be raised during the suit, up to judgment but not thereafter; and that to entertain such would tantamount to rehearing the suit. Justice Achibonga pointed out that the state entertained the participation of GHOMM in the case and even conceded to their claim, only to say it does not have the capacity after judgment. The court held that it is too late in the day for the state to raise the issue of capacity.

Justice Achibonga also argued that the court cannot vary its own judgment or order unless it is void as one that is unwarranted by any rule of law or one that the court is induced to make through fraud/mistake. In conclusion he noted that since there is no evidence that the judgment is void, he does not see how he can set it aside. He thus concluded that the court does not have the jurisdiction to set aside the judgment of 29th June 2020. He then dismissed the application of the state.

All litigants should abide by judgments and rulings of courts or resort to appeal on time to higher courts to overturn the rulings or judgments of lower courts. This is due process and the foundation of the rule of law.

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