THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA
MISCELLANEOUS APPLICATION NO 34 OF 2011
ARISING FROM HIGH COURT CIVIL SUIT NO 719 OF 1997
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
AND
IN THE MATTER OF
GOODMAN AGENCIES LIMITED)….APPLICANT/JUDGMENT CREDITOR
VERSUS
1. ATTORNEY GENERAL)
2. TREASURY OFFICER OF ACCOUNTS)
MINISTRY OF FINANCE)….............. RESPONDENT/JUDGEMENT DEBTOR
BEFORE HONOURABLE MR. JUSTICE CHRISTOPHER MADRAMA
RULING
The applicant’s application was brought under the Judicature (Judicial Review) Rules, 2009 for an order against the respondents namely that a prerogative order of mandamus is issued to compel the Defendant/Respondents and the Treasury Officer of Accounts to carry out his/her statutory duty to pay a sum of Uganda shillings 35,344,736,734/= plus any further interest accrued so far and such other future interest as shall accrue from time to time till payment in full and costs of the High Court and taxed costs of the Constitutional Court and the Supreme Court of Uganda and security for payment by way of a bank guarantee.
That the Second Respondent should appear before court to show cause why they should not pay the decree holder the money due to them. That the Respondents provide security by way of a bank guarantee to secure the decreed sum and interest and for costs of the application to be provided for.
The grounds of the application are that the applicant is a decree holder by virtue of a consent order of the High Court, and taxed costs of the Constitutional Court and Supreme Court. That the applicant’s lawyers have made several written demands to the respondent who has up to date neglected and/or refused to pay the decreed sum plus accrued interest and costs so far and other future interest that may accrue from time to time till payment in full. That the application for mandamus has been made without an unreasonable delay. That the Respondents have no lawful or plausible excuse not to pay the said sums as there is no appeal pending against the judgement and orders. That the Attorney General filed a notice of appeal and served it on the applicant’s lawyers on the 19 November 2011 beyond the stipulated seven days according to the rules of the Court
Ms Ampeire Sheila State Attorney deposed an affidavit in reply and in paragraph 4 thereof she states and I quote: "that I know that, the applicant and three others entered into a consent judgement with the Attorney General on the 2nd day of September 2005 in full and final settlement of High Court Civil Suit No. 719 of 2005. In paragraph 5 of her affidavit she states that the consent was filed on the court record on 6 September 2005. Furthermore, that on the 14th of November 2005, the Court granted an order adding Hassa Agencies Ltd as a party to the consent judgement and the Applicant been dissatisfied with the decision of the court petitioned the Constitutional Court in Constitutional Petition No. 3 of 2008. On the 28 October 2010 the Constitutional Court allowed the petition and the first Respondent been dissatisfied with the decision of the Constitutional Court filed a notice of appeal on the 10th day of November 2010 against that decision. That furthermore, Hassa Agencies Ltd also been dissatisfied with the findings of the Constitutional Court appealed to the Supreme Court. They further aver that Hassa Agencies Ltd made the Attorney General a respondent to its appeal to the Supreme Court. Sheila Ampeire further avers that the intended appeal is of great public importance and has a high likelihood of success. That if this application is allowed, the intended appeal/cross appeal would be rendered nugatory and that it is just and equitable that the application is denied in the interest of justice.
The pleadings and documents of the parties show that the relevant consent order is dated 2 September 2005 and filed in full and final settlement of High Court Civil Suit No. 719 of 1997. The consent agreement is entitled between Goodman Agencies Ltd and another versus the Attorney General. The terms of the consent judgement are as follows:
"By consent of both parties, let the judgement be entered for the plaintiffs in the following terms.
a)
The defendant do pay to the plaintiffs the sum of Uganda shillings 1, 320, 172, 842/= being the replacement cost/value of the trucks.
b)
The defendant pay the plaintiffs the sum of Uganda shillings 12, 865, 375, 000/= being loss of earnings.
c)
The defendant pays the plaintiffs Uganda shillings 300, 000, 000/= the costs of the suit."
The consent is dated 2nd of September 2005 and despite being silent on who the other plaintiffs are, it is signed by Innocent Taremwa for the first plaintiff, David Bagorogoza for the third, fourth and fifth plaintiffs; and L. Tibaruha as Solicitor General and counsel for the defendant.
Judgment of the constitutional court in a petition filed by Goodman Agencies Ltd challenging the addition of Hassa Agencies Ltd to the consent agreement by the High Court was delivered on 28 October 2010. The constitutional court noted that the consent judgement was filed on the 6 September 2005 and court fees were paid thereon on 12 September 2005. Hassa (K) Limited applied to the High Court to be added as a party to that consent judgement on 14 November 2005, the court granted an order adding Hassa to the consent judgement without notifying the other parties and pursuant to this order, the court issued a decree dated 14 September 2005 which included Hassa as a party to the consent judgement. Goodman Agencies filed Constitutional Petition No. 3 of 2008 to challenge the High Court's decision to add Hassa as a party to the consent judgement.
The court allowed the petition and held that the petitioner is at liberty to undertake execution process in respect of the consent judgement of the 2 September 2005 in the High Court Civil Suit No. 719 of 1997 the subject of the petition with interest at the rate of 24% per annum from the date of the judgement till payment in full. They ordered that the Petitioner be paid the costs of the petition with a certificate for two counsel granted.
The Attorney General appealed part of the decision which is that “the petitioner is at liberty to undertake execution process in respect of the consent judgement of the 2 September 2005 in High Court civil suit number 79 of 1997 the subject of this petition with interest at the rate of 24% per annum from the date of that judgement till payment in full”. The Notice of Appeal is dated 10th of November 2010 and lodged in the Court of Appeal at Kampala on 10 November 2010. In the order the Constitutional Court had ruled that "all proceedings conducted by the learned trial judge from the 2 September 2005 after the filing into the court of the consent judgement of the same date are unconstitutional, null and void ab initio." The court went ahead to expunge the said proceedings from the court record.
At the hearing of the application, the applicant was represented jointly by Messrs Okuku and Company Advocates and Messrs Semuyaba, Iga and Company Advocates while the Attorney General was represented by Counsel Kosia Kasibayo State Attorney.
Applicant’s submissions:
The Applicant filed written submissions: The applicant’s case is that it was agreed at the scheduling conference that the application be confined to the consent judgement, which was not appealable. After recounting the facts, counsels for the applicant submitted that the Attorney General had defaulted in filing its appeal and is to be deemed to have withdrawn the same. This is because it served the notice of appeal on the current applicant out of the time prescribed by the rules of the Supreme Court (within 7 days of lodgement of notice). They contended that much as the Attorney General filed a notice of appeal, the same was served on the applicants lawyers on 19 November 2010 way beyond the stipulated seven days according to the rules of the Supreme Court.
The gist of the applicant’s and submissions are that there were grounds on record in support of the application namely:
•
The consent judgment was signed by the parties which judgment was not appealable by the Respondent under the Civil Procedure Act.
• The Constitutional Court has confirmed the consent judgement and held that the applicant is at liberty to immediately execute it
• There is a Decree against the government.
• There is a certificate of order against the government. That in the case of Oil Seeds vs. Chris Kassami Secretary to the Treasury Hon. Lady Justice Stella Arach held that under section 19 of the Government Proceedings Act, the court has a duty to satisfy the judgment, decree and certificate of order against the government.
• The Secretary to the Treasury has a corresponding duty to pay the sum in the judgments, the Decree and certificate of order.
• There is no other alternative remedy available to the applicant who has complied with the procedure provided for under section 19 of the Government Proceedings Act and the applicant had complied with service of a certificate of order on the government under section 19 (4) of the Government Proceedings Act.
• There is no dispute as to the amount in the consent judgment.
• Paragraphs 3, 4 and 5 of the affidavit in reply by the Attorney-General admit the consent judgment.
Respondent’s Submissions
On the other hand the Respondents case is that on 12 September 2005, Hassa applied to High Court to be added as a party to that consent judgment. On 14 November 2005 the High Court granted an order adding Hassa Agencies (K) Ltd to the consent judgment and a decree was issued dated 14th of September 2005 which included Hassa Agencies (K) Ltd as a party to the consent judgment. Goodman Agencies Ltd then filed Constitutional Petition No. 3 of 2008 challenging the High Court's decision to add Hassan as a party to the consent.
The Attorney General being aggrieved by the order of the Constitutional Court awarding interest of 24% per annum from the date of judgment till payment in full and costs of the petition and a certificate for two counsels granted by the constitutional court lodged a notice of appeal against the decision. Attorney General’s written submissions agrees that the application by consent is restricted to a claim of shillings 14, 485, 547, 842/= under the consent judgment. He conceded further that this amount is not the subject of an appeal by the Respondent. The Attorney General’s counsel concern is that the consent judgment was executed between the Applicant and three others and the applicants may take the entire amount decreed there under because the three others are not in court. That the same parties have been writing letters to the Attorney General objecting to the payment of this money. He referred to the affidavit of Daniel G in reply and annexure “B”. Counsel agreed that the court has jurisdiction to grant an order of mandamus in all cases in which it appears to the high court to be just and convenient, but this order cannot be granted as a matter of course. He referred to the case of Afro Motors Limited and Okumu Ringa Patrick Aloysius versus Minister of Finance, Planning and Economic Development and Permanent Secretary/Secretary to the Treasury, Ministry of Finance, Planning and Economic Development, judgment of Hon Mr. Justice Remmy K. Kasule Judge of the High Court. He also referred to the case of Patrick Kasumba versus Attorney General, and Treasury Officer of Accounts MA No. 121 of 2010, the ruling of Justice Yorokamu Bamwine at page 6 of his judgment.
Secondly the respondents counsel noted that the applicant is entitled to only the portion of the monies in the consent judgment since it was between the applicant and three others yet the applicant wants the entire amount. Thirdly he submitted that the reason the case has dragged on for long is the fact that after the consent decree of 2nd of September, 2005 presiding judge added Hassa Agencies (K) Ltd and the applicant contested the same in the constitutional court. Hassa Agencies Ltd has appealed against the ruling of the constitutional court allowing the applicant’s petition and holding that the addition of Hassa Agencies Ltd was not lawful. The case of Hassa Agencies Ltd is that it is entitled to a share of the consent judgment. He wondered what would happen if Hassa Agencies (K) Ltd succeeded, and finds that the entire portion of the consent judgment has been paid and what remedy it would have. Would the Attorney-General have to pay again? The Attorney General’s counsel submitted that mandamus should not be granted where the subject matter is in contention. Secondly, he noted that the amounts involved in the matter are colossal and should not be enforced when the payment of the sum of money has not been finally determined and the matter is not yet very clear.
Counsel criticised the application for not having a certificate of order against government in respect of the consent judgment only or a decree. He submitted that without the Decree and the certificate of order against government in respect to the consent judgment signed by all the parties to the consent, the applicant’s application is incompetent. He submitted that the application had been brought by a certificate of order against government seeking to execute the entire proceeds of the Constitutional court. It does not state which portion of the consent belongs to the applicant especially in a case where other parties to the consent are not aware of this application.
In conclusion, the State Attorney agrees that an appeal does not operate as a stay of execution and cannot in itself be based to deny this application. He pointed out that respondent filed an application for stay of execution on the 20th of March, 2011, namely Civil Application No. 52 for stay of execution and another civil application for an interim stay of execution pending the hearing of the main application which is yet to be fixed for hearing by the Court of Appeal. He submitted that the only hope left is for this honourable court to prevail and deny the application to avert the risk of paying monies to persons not entitled to such payments failure of which the government of Uganda stands at risk of losing close to 40 billion shillings to a party who is not rightly entitled to the same.
RULING
I have carefully considered the submissions of both parties and the documents filed on court record. From the outset, I wish to state that the applicant’s notice of motion merely states that it is brought under the Judicature (Judicial Review) Rules, 2009. It does not specify under which rule it is brought. It may be appreciated that this is not an application for judicial review but for enforcement. In an application of this nature, the applicant is not seeking to review the act of the executive but to compel the executive to perform a duty in lieu of execution proceedings being brought against the respondents.
It follows that the Judicature (Judicial Review) rules, are not directly invoked except where the acts of the executive require review. This requires pleading the grounds for review. It is therefore no wonder that the applicant does not quote any particular rules. I would for clarity give one illustration. The Civil Procedure Act provides that an application for execution shall be made within 12 years from the issuance of the decree or order capable of execution. On the other hand the Judicature (Judicial Review) rules prescribe a period of three months within which an application for judicial review should be made. Rule 5 thereof specifically provides that an application for judicial review shall be made promptly and in any event within three months of the date when the grounds of the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made. It is my humble view that such limitations as to when to bring the application are inappropriate for execution of court orders. A party who has not been paid for a year after obtaining the certificate of order against the Government should be at liberty to bring the application after expiry of the three months.
In those circumstances the appropriate provisions for the application should have been section 37 of the Judicature Act which provides that the High Court may grant an order of mandamus or an injunction or appoint a receiver by an interlocutory order in all cases in which it appears to the High Court to be just or convenient to do so. This wide jurisdiction enables the High court to entertain an application for mandamus even after three months in cases of execution of court orders. To conclude the point of procedure, no prejudice has been occasioned to the Respondent in adopting the procedure under the Judicature (Judicial review) Rules 2009. The respondent was served and replied to the applicant’s application as far as the actual matter in controversy is concerned. The respondents further made submissions on the application. Consequently proceeding under the Judicature (Judicial Review) Rules, 2009 generally was a matter of form and not substance and has not occasioned any miscarriage of justice to the Respondents.
At the scheduling conference, it was agreed by the parties that they would confine the application for mandamus to an application for execution of the consent decree only. In this regard it is necessary to set out the parties to the consent decree. These are the current Applicant and others as plaintiffs with the Attorney General as defendant. The names of the other plaintiffs have not been an issue in this application and they have not been stated.
By opposing this application the Attorney General indirectly challenges the enforceability of the consent decree. This application therefore must first resolve the issue of whether a consent decree can be avoided by any party to it. This is because a consent decree is an agreement of the parties and is for all intents and purposes a contract in law and enforceable as between the parties upon proof of the contract. A consent judgment is enforceable and can be varied or rescinded in the same manner as a contract between the parties. The manner of setting aside a consent judgement is well navigated by judicial precedents. A party to a consent judgment cannot renege from the terms set up in the consent agreement. Even if he or she does not agree with the consent, he or she must apply to set aside the consent judgment on any ground/s that may vitiate a contract between parties.
As far as judicial precedents are concerned, I would refer to the case of Brooke Bond (T) Ltd vs. Mallya [1975] E.A 266, where Law Ag P agreed with the principles quoted at page 269 of the judgment that “a consent judgment made in the presence of and with the consent of counsel is binding on all parties to the proceedings or action, and on those claiming under them and cannot be varied or discharged unless obtained by fraud or collusion,” or by an agreement contrary to the policy of court or where the consent was given without sufficient material facts, or in misapprehension or ignorance of material facts, or in general for any reason which would enable court to set aside an agreement between the parties. (Emphasis mine)
A consent judgment may be set aside on any grounds that would invalidate an agreement or contract between parties to the contract. In Mohamed Allibhai –vs. W. E Bukenya Mukasa, Departed Asians Property Custodian Board S.C.C.A 56 of 1996, the parties filed a written consent settling the suit by agreement and on appeal from an order made in an application filed to set aside the agreement the Supreme Court of Uganda held that a Consent Judgment may be set aside on any ground that would invalidate an agreement/contract between the parties or enable Court to set it aside and secondly for fraud, collusion or as being contrary to public policy. The same doctrine is found in the case of Hassanali vs. City Motor Accessories Ltd and Others [1972] EA 423. In this case, the Court of Appeal at Nairobi held that it could not interfere with a Consent Judgment except in circumstances that would provide a good ground for varying or rescinding a contract between the parties.
Judicial precedence also shows that an application to set aside a consent judgment should ordinarily be challenged in the suit itself by way of an application for review to set it aside. The reason for this is obvious. A consent judgment is not appealable and therefore can only be set aside or varied in the suit itself. The provision that a consent judgment is conclusive is cemented by section 67 (2) of the Civil Procedure Act which bars an appeal from a consent decree. Section 67 (2) of the Civil Procedure Act provides:
“67. Appeal from ex parte decree, etc.
(2) No appeal shall lie from a decree passed by the court with the consent of parties.”
As has been noted the parties filed a consent decree in the High Court. As far as the decree between the Applicant and the Attorney General is concerned, the Attorney General, and admittedly so, has no right to appeal the consent decree/judgment. Courts are bound to follow the law as enactment by Parliament which is the supreme law making authority in the land. Therefore there can be no pending appeal against the consent judgement sought to be executed in this application. A consent judgment can only be set aside or varied as demonstrated by the above cited precedents. Had the Attorney General wanted a stay of execution, he should have served a formal stay of execution order on the applicant as noted in Kampala City Council verses National Pharmacy (1979) HCB 215. In this case it was held that the pendency of an appeal does not of itself constitute a stay of execution. The case restates the rules of the Judicature (Court of Appeal) Rules, Directions and the Judicature (Supreme Court) Rules, Directions. Both Appellate Courts have similar rules which as in rule 6 (2) (b) of the Judicature (Supreme Court) Rules, Directions provides that an appeal shall not operate as a stay of execution, to quote:
“6. Suspension of sentence, stay of execution, etc.
(2) Subject to sub rule (1) of this rule, the institution of an appeal shall not operate to suspend any sentence or to stay execution, but the court may—
(b) in any civil proceedings, where a notice of appeal has been lodged in accordance with rule 72 of these Rules, order a stay of execution, an injunction or stay of proceedings as the court may consider just.
Consequently for there to be a stay of execution there has to be an application to the Supreme Court for an order of stay of the decision of the Constitutional court. We cannot assume that the parties would not take further steps to implement their agreement merely because of the pendency of an appeal. This provision is further strengthened by Section 19 (3) of the Government Proceedings Act which requires the Treasury Officer of accounts to pay monies stipulated in a certificate of order against the government to the judgment creditor in the absence of a suspension of the payment or a contrary direction by the trial court or appellate court. I must note that where there is no right of appeal, an order of stay of execution cannot be contemplated under section 19 (3) unless of course there is an application to set aside the consent of the parties.
I must note that a consent judgment unless set aside operates as estoppels against a party who wishes to challenge or assert a different position than that in the agreement he or she endorsed. As far as the common law is concerned, I would refer to the case of Huddersfield Banking Co. Ltd vs. Henry Lister & Son Ltd (1895) 2 Ch D. P. 273 and the judgment of Lindley L. J. at page 280 where he held:
“A Consent Order I agree is an order and so long as it stands it must be treated as such, and so long as it stands it is as good an estoppels as any other order. “
Section 114 of the Evidence Act Cap 6 provides that:
“when one person has by his or her declaration act or omission, intentionally caused or permitted another person to believe a thing to be true and act upon such belief, neither he or she or his or her representative shall be allowed, in any suit or proceedings between himself or herself and that person or his or her representative, to deny the truth of that thing.”
The rationales for the exclusion of oral evidence to vary the terms of a written contract under section 91 and 92 of the Evidence Act cap 6 Laws of Uganda 2000 are the same. A party who has executed an agreement should not be permitted to depart from it by reference to an oral variation or act of rescinding its terms. He or she can only vary, set aside or rescind by making an application to challenge the agreement in a suit or application to set it aside. Alternatively the parties can do this by consent. In the absence of such an application the Respondent has no valid ground for opposing the applicant’s application for execution. The Justices of the Constitutional Court must have had this in mind when they held that the applicant/petitioner is at liberty to undertake execution in respect of the consent judgment of the 2nd of September 2005 in High Court Civil Suit No. 719 of 1997. Without a stay of execution, ordered by the Constitutional Court or the Supreme Court, the Attorney General is estopped from challenging the application for execution. The consent judgment was made more than five years ago. On what lawful grounds should the application be disallowed? Moreover agreement to pay by way of consent judgment was signed by the Solicitor General, the highest Civil Servant in the Attorney General’s Chambers. I am in agreement with the observations of the Constitutional Court that the consent came under the signature of a very high, if not the highest authority in the ministry (Save the Hon. Attorney General) namely the Solicitor General who appended his signature to the consent agreement. Why would the Attorney General’s top executives execute a consent judgment if Government was not willing to comply with its terms? If there is any issue concerning the consent, it should be referred back to the Attorney General’s chambers. The consent expressly provides that the defendant is to pay the plaintiffs certain sums of money. I have noted that the Attorney General’s counsel makes two points namely that there are other parties to the consent decree and secondly that Hassa Agencies (K) Ltd has appealed from the decision of the constitutional court.
My short answer to the first issue is that the other parties not having come to court should not be a bar against the vigilant applicant from enforcement of the consent judgment. The applicant is entitled to seek the assistance of court for enforcement of the agreement because it is both a party and a beneficiary to the agreement. Secondly as to how much is owed to each plaintiff again is not a case against enforcement but is a question as to how much each plaintiff is to be paid out of what is due to them jointly under the consent decree. We must assume that this must have been in the contemplation of the parties at the time of the consent judgment to which the Attorney General’s chambers is privy. Secondly, Hassa Agencies (K) Ltd is not a party to this application. It is not the duty of counsel for the Attorney General to argue its case. The judgment of the constitutional court is very explicit and holds that the petitioner is at liberty to execute the judgment. If Hassa Agencies (K) Ltd was aggrieved by that order, it was upon it to move court for appropriate orders and not the Attorney General who in my judgment is barred by the doctrine of estoppels as far as the consent is concerned. Hassa Agencies Ltd has not as far as this application is concerned obtained a stay of the order of the Constitutional Court. In the circumstances, the applicant’s application should be considered on its merits.
Under section 19 of the Government Proceedings Act, execution against government is commenced by the judgment creditor first obtaining a certificate of order against government which certificate may then be served on the Attorney General and the relevant Secretary to the Treasury. Section 19 of the Government Proceedings Act Cap 77 provides that a person may within 21 days after an order has been made for payment of money by the government to an individual obtain a certificate in the prescribed form containing particulars of the order specifying the amount of money and costs that is to be paid to the applicant. A copy of the certificate may be served by the person in whose favour the order is made upon the Attorney General (see section 19 (2)) of the Government's Proceedings Act). Furthermore, section 19 (3) of the Government Proceedings Act provides that the:
"Treasury officer of accounts or such other government accounting officer as may be appropriate shall, subject as hereinafter provided pay to the person entitled or to his or her advocate appearing by the certificate to be due to him or her together with interest, if any, lawfully due on that amount; but the court by which any such order as is mentioned in this section is made or any court to which an appeal against the order lies may direct that, pending an appeal or otherwise, payment of the whole of any amount so payable or any part of it, shall be suspended, and if the certificate has not been issued may order any such directions to be inserted in the certificate"
The provision directs the appropriate officer to pay the money in the order if the court issuing the decree or to which an appeal lies has not stayed execution or given other directions on how to deal with the matter rather than by paying as ordered.
Last but not least section 19 (4) of the Government Proceedings Act provides that:
"except as is provided in this section, not execution or attachment or process in the nature of an execution or attachment shall be issued out of any court for enforcing payment by the government of any such money or costs as referred to in this section, and no person shall be individually liable under any order for payment by the government, or any government department or any officer of the government as such, of any such money or costs."
It follows from section 19 (4) of the Governments Proceedings Act, that the only method for enforcement of payment is that under the preceding sections of section 19 (4) cited above. Where a certificate is served and no payment is made, the judgment creditor is left with the option to apply for execution by way of an order of mandamus to compel the relevant treasury officer of accounts to pay. It must further be noted that rule 15 of the Government Proceedings (Civil Procedure) Rules S.I. 77 – 1, expressly excludes order 22 of the Civil Procedure Rules, which deals with execution of decrees, from applying to the Government.
The grounds upon which an application may be made for an order of mandamus are not in dispute. In the case of Patrick Kasumba versus Attorney General, and Treasury Officer of Accounts MA No. 121 of 2010, Hon. Justice Yorokamu Bamwine at page 6 of his judgment held that:
"from the authorities, before the remedy can be given, the applicant must show a clear legal right to have the thing sought by it done. Mandamus is a discretionary order, like all other prerogative orders, which the courts will grant only in suitable cases and withhold in others. It cannot be granted as a matter of course. A demand for performance must precede an application for mandamus and the demand must have been an unequivocally refused.
In Afro Motors Limited and Okumu Ringa Patrick Aloysius versus Minister of Finance, Planning and Economic Development and Permanent Secretary/Secretary to the Treasury, Ministry of Finance, Planning and Economic Development. Hon Justice Remmy K. Kasule Judge of the High Court held at Page 9 bottom to 10 paragraph 1 of his judgment that:
“To obtain a writ of mandamus requiring the performance of an act, the applicant must show (i) a duty of the opposite party to perform the act, (ii) the applicant’s specific legal right for which the discharge of the duty is necessary, and (iv) a lack of any other legal remedy. Where for any reasons, the duty to perform the act is doubtful, the obligation is not regarded as imperative, and the applicant will be left to his/her other remedies. So when the statute prescribing the duty is not clearly and directly create it, the writ will not lie. Mandamus, will not issue to enforce doubtful rights. The duty to perform an act must be indisputable and plainly defined."
H.W.R Wade in his textbook Administrative Law 5th Edition at page 630 examines the nature of the remedy of mandamus as a prerogative remedy. He notes that mandamus has provided the normal means of enforcing the performance of public duties by public authorities of all kinds and is normally granted on the application of a private litigant, though it may be used by one public authority against another:
“The commonest employment of mandamus is as a weapon in the hands of the ordinary citizen, when a public authority fails to do its duty by him. ...it is issued in the name of the crown from the court of King's Bench ordering the performance of a public legal duty. It is a discretionary remedy, and the court has full discretion to withhold it in unsuitable cases.
It is therefore a prerequisite that the applicant must show that it enjoyed a right. This right is specified by the decree of the court. Secondly, the applicant has to show that a certificate of order against government has been extracted and duly served on the Respondent. Thirdly it must be shown that the Respondent refused to honour the certificate of order against government by refusing to pay the amount decreed or specified in the certificate of order. In this case the certificate of order against government attached to the applicant’s application was issued by the registrar of the Court of Appeal on 15 November 2010. The certificate seeks to enforce the order of the Constitutional Court dated 28 October 2010 in Constitutional Petition No. 03 of 2008. It commands the Government to pay Uganda shillings 14, 485, 547, 842/= pursuant to the consent judgment of 2 September 2005 in High Court Civil Suit No. 719 of 1997 and interest at 24% per annum from the date of judgment till payment in full which amount altogether to grand total of Uganda shillings 31, 868, 205, 252/= the certificate of order against government reads:
"I hereby certify that the above-mentioned sums only include the decretal sums without the taxed costs and any further interest that may accrue from time to payment from September until all payments are made in full. Enclosed is the calculation. How the amounts are developing from time to time in accordance with the orders of the constitutional court."
The calculations on the certificate of order show that the total interest amount to Uganda shillings 17, 382, 657, 410/=. There is no certificate of order specifically to enforce the consent judgment of the High Court as agreed in the scheduling conference. It is essential that the specific amount that is sought to be paid should be stated in the decree and certificate of order against the government. Secondly this has to be served on the Attorney General or Treasury officer of Accounts as provided for under section 19 of the Government Proceedings Act.
Having considered the procedure under section 19 of the Governments Proceedings Act, the applicant’s application lacks a specific decree and certificate of order to pay only the amounts in the consent decree which is not appealable. The applicant cannot be faulted for failure to have extracted the specific decree and order as this was agreed at the scheduling conference and after the filing of the application to execute the entire order of the Constitutional Court. I must admit that both the court and the parties at the scheduling conference of the application had not considered an amendment to first obtain the specific orders which are a prerequisite to the application for mandamus. The rationale for the agreement was to seek mandamus to only enforce the consent decree which is not appealable and to which the Attorney General has no defence. Moreover the constitutional court had ordered that the applicant is at liberty to execute the consent decree. The requirement for the certificate of order against the government and the decree is procedural. It ensures that only the exact amounts stated in the certificate of order are paid by the Treasury Officer of accounts. In the premises I find that the applicant’s application is premature for failure to have extracted an order from the High Court covering only the consent decree. In the premises the applicant’s application is struck out as being premature with no order as to costs as this was no fault of the Applicant who made the agreement to proceed on the basis of the consent decree for purposes of falling within the legal doctrine that a consent decree is not appealable .
The applicant is at liberty to obtain the necessary decree and certificate of order against the Government and file another application to enforce the consent court order endorsed inter alia by the hand of the Solicitor General for and on behalf of the Attorney General’s office. These preliminary documents would determine how much specifically the Treasury Officer of accounts is to authorise for payment pursuant to the consent judgment executed by the Government itself. Secondly it would not prejudice an appeal as to the issue of interests that the Attorney General may have preferred pursuant to further orders of the constitutional court.
Ruling delivered in open court at Kampala this 14th day of June 2011,
Hon. Mr. Justice Christopher Madrama
Ruling delivered in the presence of:
James Okuku for the applicant,
Nicholas Were the MD for Goodman Agencies Ltd,
No body for the Attorney General
Ojambo Makoha Court Clerk.
Hon. Mr. Justice Christopher Madrama
