PTA Bank and Another v Ogang (Reference 1 of 2000) [2002] COMESACJ 19 (26 April 2002)

Key Facts

Issues

• The court examined whether the proceedings in Reference No. 1B/2000 were properly initiated under Rule 37 of the COMESA Court Rules, which governs preliminary reports and the commencement of proceedings. The applicants argued that the absence of a preliminary inquiry rendered the proceedings invalid, but the court concluded that Rule 37 permits proceedings to commence without such an inquiry, making the non-compliance non-fatal.
• The court addressed allegations of bias against Judges Akiwumi and Ogoola, requiring their recusal under Article 22 of the COMESA Treaty. For Judge Akiwumi, the issue centered on his prior professional relationship with the respondent, while Judge Ogoola's past employment at the African Development Bank with the respondent was scrutinized. The court determined that Judge Ogoola should have recused himself due to potential bias, but Judge Akiwumi's participation was deemed impartial, and the proceedings involving him were regular.

Holdings

• The court ordered that proceedings involving Justice Ogoola be set aside and referred to the Judge President under Article 22 of the COMESA Treaty, citing statutory disqualification due to potential bias.
• The court determined that Justice Ogoola should have recused himself due to his prior professional relationship with the respondent at the African Development Bank, as a reasonable person might reasonably suspect bias under common law principles.
• The court held that non-compliance with Rule 37 of the COMESA Court rules did not vitiate the proceedings in Reference No. 1B/2000, as the President is not required to order a preliminary inquiry when no reply or rejoinder has been filed by the parties.
• The court dismissed allegations of bias against Judge President Akiwumi, finding no evidence of a prejudicial relationship with the respondent and noting the 2nd Applicant's failure to raise objections during the proceedings.

Remedies

Legal Principles

• The judgment referenced presumptions under common law and statutory disqualification, noting that new statutory disqualifications cannot be regularized by waiver or acquiescence. The court applied this to the COMESA Treaty's Article 22, determining that proceedings involving disqualified judges must be set aside unless the party objected at the earliest practicable opportunity.
• The COMESA Court of Justice emphasized the principle of natural justice, applying the test from R v Gough [1993] that a reasonable person might reasonably suspect bias. This included evaluating whether there was a 'real danger of bias' on the part of judges and upholding the maxim that justice should not only be done but manifestly seen to be done. The court also addressed the need for judges to recuse themselves when there is a potential conflict of interest, as outlined in Article 22 of the COMESA Treaty.

Precedent Name

• Pinochet Ugarte (2)
• Tononoka Steels Ltd v. The Eastern and Southern Africa Trade and Development Bank
• R v Gough

Cited Statute

• COMESA Court Rules
• COMESA Treaty

Judge Name

• J. B. Kalaile
• K. R. A. Korsah
• A. Nyankie
• E. L. Sakala
• J. J. Mutsinzi

Passage Text

• It is a fundamental rule ... that justice should not only be done, but should manifestly and undoubtedly be seen to be done.
• We are of opinion that the interests of justice would be better served if Mr. Justice Ogoola takes no further part in this Reference.
• The Court shall decide, after hearing the parties what action to take upon the recommendation of the President or the Judge designated to make a preliminary report.