JUDGMENT WRITING

BY LAWRENCE GIDUDU, JUDGE.

PRESENTATION TO THE 4TH MAGISTRATES’
CONFERENCE AT COLLINE HOTEL MUKONO, 23RD
AUGUST,2013.
 DEFINITIONS
• THE OFFICIAL AND AUTHENTIC
DECISION OF A COURT OF JUSTICE
UPON THE RESPECTIVE RIGHTS AND
CLAIMS OF THE PARTIES TO AN
ACTION OR SUIT THEREIN LITIGATED
AND SUBMITTED FOR ITS
DETERMINATION
 DEFINITIONS
• ANY DECISION GIVEN BY A COURT
ON A QUESTION OR QUESTIONS OR
ISSUE BETWEEN THE PARTIES TO A
PROCEEDING PROPERLY BEFORE
COURT.- Halsbury’s Laws of
England.3rd edition
 DEFINITIONS
• THE DECISION OR SENTENCE OF A COURT IN
A LEGAL PROCEEDING. ALSO THE REASONING
OF A JUDGE WHICH LEADS HIM TO HIS
DECISION, WHICH MAY BE REPORTED AND
CITED AS AN AUTHORITY, IF THE MATTER IS
OF IMPORTANCE,CAN BE TREATED AS A
PRECEDENT.- ( Osborn’s Law dictionary, 7th
edition.)
 NOTES
• THE JUDGMENT MUST COMMUNICATE A
DECISION OF A COURT.
• THE DECISION MUST BE ACCOMPANIED WITH
REASONS.
• THE DECISION MUST RESOLVE THE
ISSUES/QUESTIONS IN CONTROVERSY.
• THE DECISION MUST BE FINAL ON THE
DISPUTE BEFORE THE COURT.
 PURPOSE OF JUDGMENT
• LEGAL REQUIREMENT. See section 133 MCA;
82(2) TIA; Order 21(1) CPR
• To determine the guilt or innocence of an
accused person.
• To settle matters in controversy.
• To communicate reasons to the parties for
the decision.( public and appellate Court)
• To provide accountability by Judicial Officers.
• To serve as precedents.
• To develop Jurisprudence.
• To promote checks and balances under the
rule of Law.
 STRUCTURE OF JUDGMENTS
• JUDGMENTS ARE CONSTRUCTED LIKE OTHER
PHYSICAL STRUCTURES ON PAPER.
• THEY HAVE A FOUNDATION, THE
SUPERSTRUCTURE, THE HEAD AND OTHER
ACCESSORIES.
• BUT UNLIKE PHYSICAL STRUCTURES THAT
DON’T TALK, JUDGMENTS HAVE LIFE; THEY
COMMUNICATE.
 STRUCTURE
• HEADING. ( Title, Court, Parties, Case
number, Judge)
• INTRO. ( Facts, issues/ingredients)
• BODY/SUPERSTRUCTURE. (
Analysis/Evaluation of evidence, application
of the law, resolution of issues/elements,
ratio decidendi)
• CONCLUSION. ( Decision)
 CONTENTS
• SEC. 86. TIA; 136 MCA; O.22 R. 4 CPR.
• KAGOYE V R (1959) EA 900; OKENO V R (1972)
EA. 32
• Must be written
• Language of the Court. (English)
• Points for determination
• Decision thereon
• Reason for the decision
• Dated
• Signed.
 FINDINGS OF FACT
• State relevant facts without detail.
• State only facts and history that affects
the analysis and decision
• Sift the grain from the chuff
• Be accurate, precise and impartial
• Consult the record to avoid errors
 FINDINGS OF FACT…..
• Facts be written in chronological order
but if complicated, then use a thematic
approach.
• Point out discrepancies, if any, and
make findings of fact
• Consider the credibility of witnesses ie
body language, audibility
 CASE LAW
• Kifamute Henry V Uganda. Cr app 10/1997
(SC)
• Abdalla Bin Wendo and anr vrs. Rep (1953)
20 EACA. 166
• Abdalla Nabulere and anr vrs Uganda (1979)
HCB 77
 IDENTIFICATION OF ISSUES,QUESTIONS AND
INGREDIENTS

• ISSUES
• Proposition of law or fact made by one
party but opposed by the other.
• Order 15 rule 1 and Order 12 CPR
• Each issue must be stated distinctly.
• Issues are of fact or law
 ISSUES….
• Issues of law may dispose of the case and may
be tried first. ie POs
• Issues are now framed at conferencing(O.12
CPR) Note that a PO may also be framed as an
issue if it involves taking some evidence.
Kasibante v Hon. Singh Katongole. El.Petition
23/2011(unreported)
• Remember even after taking evidence,
additional issues may framed( O.15 Rs. 3&4 CPR)
 QUESTIONS
• Questions are similar to issues but usually arise after
evidence has been adduced. They are framed during
judgment writing. They are sub issues which should
be stated fairly and impartially.
• They are common in applications supported by
affidavits. ( whether an affidavit discloses a source of
information, place of deposition, or is based on
hearsay.) In criminal cases, they arise from evidence
which the prosecution adduces but which the defence
denies. (Whether a witness made statements that
were not recorded or is giving different evidence.)
Contradictions in evidence also raises questions for
resolution.( Factors for proper identification)
 QUESTIONS…..
• Questions relate to facts unlike issues that
may involve law. Eg. Whether the witness
could identify the assailant correctly or is
honestly mistaken? These are questions of
fact which must be resolved in the judgment.
• Focus on the questions you have framed to
enable parties follow and understand why
you have reached that conclusion
 INGREDIENTS
• Essential elements that constitute a crime charged.
• Every crime except for those crimes of strict liability,
have elements for both the mes rea and actus rue.
• Ingredients should be stated clearly and fully resolved
one by one in logical order to ensure the judgment
flows. Remember you are communicating to the
parties and other stakeholders.
• Should the need arise to reserve a resolution on one
element until you have resolved the next, then state
so clearly but remember to resolve the shelved issue.
 BURDEN OF PROOF
• REMEMBER TO STATE CLEARLY AND
CORRECTLY WHO BEARS THE BURDEN TO
PROVE THE CASE OR ISSUE STATED AND TO
WHAT STANDARD.
• In criminal cases, the standard is beyond
reasonable doubt.
• In civil cases, it is on the balance of
probabilities with some exceptions where
fraud is pleaded.
 “BEYOND REASONABLE DOUBT”
• “The degree of beyond reasonable doubt is
well settled. It need not reach certainty, but
it must carry a high degree of probability.
Proof beyond reasonable doubt does not
mean proof beyond the shadow of doubt.
The law would fail to protect the community
if it admitted fanciful possibilities to deflect
the course of justice. If evidence is so strong
against a man as to leave a remote possibility
 Proof
• .. in his favour which can be dismissed with a
sentence, of course it is possible but not in
the least possible, the case is proved beyond
reasonable doubt but nothing short of that
will suffice”
• Per lord Denning: Miller v Minister of
Pensions (1947) 2 AER 372.
• Art. 28(3)a Constitution.
APPLYING THE LAW TO THE FACTS
• This is the crux of judgment writing.
• Evaluation of evidence is done at this stage.
• Evaluate the evidence as a whole for both
sides.
• This is where the ratio decidendi is stated and
the case is decided finally.
• Judgment should refer to the principles
applicable( case law and statutory law).
 Cont…
• Each issue or ingredient framed should be disposed of
separately though two or more issues may in civil
matters may overlap and may be dealt with together.
• The demeanor of witnesses is assessed but this
should be from notes already recorded.(O.18.r.10)
• Clear reasons must be given for the decision and
demonstrate that both sides have had their
propositions considered.
• Do not consider one side in isolation of the other.
 Cont…
• Apply only relevant cases and distinguish
those you consider not applicable. Avoid
loading judgment with authorities. Shah v
Aguto (1970) EA 263.
• Decide only those issues that dispose of the
case. This ensures clarity
• Analysis at this stage should be balanced and
dispassionate.
 Cont…
• At this stage, the judgment should set forth the
evidence on each issue sufficiently to show its
nature, what it proposes to establish, and its
credibility.
• Reference should be made to arguments for
both sides, apply the law objectively and draw a
conclusion on each issue.
• For example, in murder and robbery cases that
occur at night, the issue of proper identification
always comes up. Analyze those factors that
 Cont…
• Where there is an alibi, the prosecution
evidence should be assessed against the defence
denial before a conclusion is made.
• It is not enough to conclude that the evidence
places the accused at the scene without
comparing that evidence against the accused
evidence on the alibi. See Moses Bogere’s case.
• REMEMBER: CONSIDER THE EVIDENCE AS A
WHOLE BEFORE DECIDING CASE FINALLY
 Evaluation of evidence of
identification
• “The starting point is that a court ought to
satisfy itself from the evidence whether the
conditions under which the identification is
claimed to have been made were or were not
difficult and to warn itself of the of the
possibility of mistaken identity.
• The Court should then proceed to evaluate the
evidence cautiously so that it does not convict
or uphold a conviction, unless it is satisfied that
mistaken identity is ruled out.
 Evaluation
• In so doing the Court must consider the
evidence as a whole, namely the evidence if
any, of factors favouring correct identification
together with those rendering it difficult.
• It is trite law that no piece of evidence should
be weighed except in relation to all the rest
of evidence.”
• Bogere Moses and anr v Uganda. Cr app.
1/97 (SC)
 Consider questions and defences
below.
• Admissibility of evidence- hearsay rule. Sec. 59 Evidence Act. Cap 6
• Discrepancies, contradictions, credibility and demeanor.
• Identification by single witness. Factors for proper Identification
• Circumstantial evidence. See Simon Musoke v R.(1959) EA 715
• Corroboration. Accomplice, confession, Child evidence, etc
• Common intention. Participation or omission to disassociate
• Insanity. Complete defence
• Intoxication. Qualified complete defence
• Mistake. Complete defence
• Provocation. Removes malice or intent
• Claim of right. Complete defence
• Duress. Complete defence
• Self defence. Complete defence.
• Alibi. No duty to prove alibi
 REMEMBER
• To decide on each count or charge to avoid
omnibus convictions in criminal cases.
• Put a conclusion to the judgment. “ The
prosecution has proved its case beyond
reasonable doubt, I find you guilty of the
offence of… c/s… and convict you
accordingly”. Or “the plaintiff has proved
his/her claim on the balance of probabilities.
I, therefore, make the following orders….”
 LANGUAGE AND STYLE
• Judgments have a purpose- to communicate to
the parties and other stakeholders the decision
of the Court in regard to the dispute.
• English is the language of Court and its proper
use creates good impact.
• Judgments out live their authors. They act as
precedents and should carry the message for
posterity.
• Judgments should , therefore, be
understandable by even those who have lost.
 Language and style
• Give a brief prologue to introduce the story
• Avoid repeating pleadings and the law: set the scene
simply and clearly.
• Avoid long, winding and boring sentences.
• Write in a style you are comfortable with.
• Use clear sentence structures and organisation
• Identify characters before telling what they did
• Use spot citations like exact pages
• Be formal, clear, simple and free of jargon. Use plain
English. Latin may be used sparingly where necessary
and inevitable.
 Language and style
• Be concise. Avoid repetitions and overlaps
except if it adds colour to style.
• Be gender sensitive and avoid prejudices.
• Be respectful to the parties and other
readers.
• Use quotes sparingly and only when they add
value and emphasis.
• Where possible paraphrase the law or use
short quotes
 Cont…
• Limit the use of italics for emphasis. Over use
means that the reader is not alert enough to
see your point without help.
• Minimise the use of Latin phrases. The
parties and their counsel may not be
impressed yet they are the primary target
group to receive the judgment.
 Cont…
• Even in England the excessive use of Latin,
has been a subject of criticism from as early
as 1943. In Ingram v. United Automobile
Services Ltd.(1943) 2 All E R 71 the Court
observed “ I think the cases are
comparatively few in which much light is
obtained by the liberal use of Latin phrases.
Nobody can derive any assistance from the
phrase Novus acus interveniens until it is
translated into English”
 Cont…
• Use of headings in a very involved long trial is
advised. Examples are in Election Petitions.
• Use of dramatic statements can be effective
in summarizing the situation.
• “ In 1972 a sword fell on the Asians living in
Uganda. It was the sword of the President
General Amin”
• Per Lord denning in Thakrar v. Secretary of
State (1974) 2 All E R. 261.
 Cont…
• Avoid the straight narrative style which never
really poses the question to be answered until
the end. A judgment is not a detective story; it
should consist of posing of questions and
thereafter of findings of facts relevant to the
questions and the stating of the answers to
those questions based on the applicable law.
• Avoid the narrative of PW1, PW2,PW3,
PW4….stated this….. Don’t repeat the
testimonies in the judgment.
 Cont…
• Use of paragraphs is advised to give readers a
break. Long paragraphs are dull to read.
• Proper use of Grammar and punctuation
shows professionalism and makes writing
easier to understand.
• Read judgments by senior judges to
appreciate the use of style and language in
making judgments more professional
 Lord Denning, The family
story,(1999)p207
• “ I start my judgment, as it were, with a
prologue- as a chorus does in one of
Shakespeare's plays- to introduce the story… I
draw the characters as they truly are- using their
real names… I avoid long sentences like a
plague, because they lead to obscurity. It is no
good if the reader cannot follow them… I refer
sometimes to previous authorities- I have to do
so-because I know that people are prone not to
accept my views unless they have support in…
 Denning
• the books. But never at much length. Only a
sentence or two. I avoid all reference to
pleading and orders- They are mere lawyers’
stuff. They are un intelligible to everyone
else. I finish with a conclusion- an epilogue-
again as the chorus does in Shakespeare. In it
I gather the threads together and give the
result”
 Cont…
• Write judgments regularly as a way of
practicing and perfecting the science and art
of writing understandable judgments.
 DELIVERY OF JUDGMENTS
• Time is of the essence in the delivery of justice.
Parties come to Court because they are
aggrieved.
• Delay in handing down the decision increases
their agony and frustration.
• Art. 28 of our Constitution requires a speedy
trial as part of a fair hearing.
• In Uganda, the Code of Judicial Conduct imposes
60 days as the time frame for delivery of the
Court’s decision.
 Other Countries.
• AUSTRALIA. A judgment must be delivered within 90
days from the closure of the final addresses to Court.
Beyond this time, a complaint may be lodged and the
judge called to order.
• PHILIPPINES. It is a constitutional requirement under
Art. 8(15) to deliver judgment within 90 days.
• GUYANA. A Judge may be removed from office for
persistently failing to write and deliver judgments.
Art. 197(3) of the Guyana Constitution.
 Other Countries
• NIGERIA. Every Court established under this
Constitution shall deliver its decision in
writing not later than 90 days after the
conclusion of evidence and final addresses
and furnish all parties to the cause or matter
determined with duly au thenticated copies
of the decision within 7 days of the delivery
thereof. Art. 294(1) of the Federal
Constitution,1999. A judgment delivered
after the set time is null and void.
 CONCLUSION
• A Judge’s goal in writing a judgment is
to put reason onto paper. The common
law system of precedent depends on
honest, reasoned, and well written
judgments. Judgment writing is
challenging. But writing clearly, with an
effective structure and style, lets judges
leave a lasting trail.
THANK YOU