THE REPUBLIC OF UGANDA
IN THE COURT OF APPEAL OF UGANDA AT KAMPALA
CONSTITUTIONAL PETITION NO. 10 OF 2012
KIKONDA BUTEMA FARM LTD==================== PETITIONER
VERSUS
ATTORNEY GENERAL========================= RESPONDENT
CORAM: HON MR. JUSTICE REMMY KASULE, JA
HON.MR.ELDAD MWANGUSYA, JA
HON. LADY JUSTICE FAITH MWONDHA, JA
HON. MR. JUSTICE KENNETH KAKURU, JA
HON. MR. JUSTICE GEOFREY KIRYABWIRE, JA.
JUDGEMENT OF THE COURT
This petition is stated to have been brought under Articles 50 (1) and (2) and 137 of the Constitution and the Constitutional Court (Petitions and References) Rules 2005 Statutory Instrument No. 91 of 2005.
At the hearing of this petition Mr. Peter Mulira appeared for the petitioner while Mr. Elisha Bafirawala Senior State Attorney appeared for the respondent. This petition has a long and checkered history, which we have endeavored to summarize as follows:
The petitioner is a limited liability company that was incorporated in Uganda on 4th December, 1967 as Kikonda Butema Tobacco Farm Ltd. The name was changed on the 30th August 1969 to Kikonda Butema Farm Ltd. It was incorporated with a nominal share capital of Sh. 100,000/= divided into 1000 nominal shares. It had 18 shareholders all of them it appears at least from their names were of Asian origin or decent, save for one Saulo Mahon Lubega, who held 180 shares. He was the largest single shareholder in the company. The said Mr. Saulo Mohan Lubega passed away in 1968, and his shares were inherited by his widow Mrs. Florence Lubega in accordance with his will.
When the Asians were expelled by the Military Government in 1972-1973, the government took over the farm and handed it over to the Ministry of Agriculture, to manage it. The land on which the company carried its activities did not belong to it, but to Mr. Saulo Mahon Lubega, on a 40 year lease from one Mr. Wamala, the mailo land owner, with effect from 1968. It is registered as Leasehold Register Volume 679, Folio 13 Plot 3 Singo.
This farm remained in the hands of the government until 3rd November 1989 when it was handed over to Mrs. Lubega, through the District Executive Secretary, Mubende. That same year Mrs. Lubega lodged a claim for compensation to government for the value of agricultural equipment and vehicles which were allegedly at the farm at the time of takeover of the farm by the Military Government.
In 1983, the Asian shareholders, or at least some of them had also submitted their claims for compensation for their shareholding in the company to the government through the Departed Asian’s Property Custodian Board.
Mrs. Lubega’s claim was for Shs. 1,084,787,837/=. The claim was submitted to the Secretary to the Treasury, which was then forwarded to the Solicitor General for verification and approval.
The claim was appraised and the Attorney General approved an ex-gratia payment of Shs. 100 Million which amount was based on a recommendation by the then Ministry of Finance, Planning and Economic Development. It was communicated to the Solicitor General by the Secretary to the Treasury that the payment was in full and final settlement of the claim, by a letter dated 1st August 1994. She was duly paid sometime thereafter.
On 11th February 2000, Mrs. Florence Lubega submitted another claim through M/s Mulira & Co Advocates for the “full value of the farm’s equipment”. The claim was for Ss. 2,325,406,727/= being the value of equipment, vehicles and interest.
Interestingly one Mr. Joseph Matsiko, a senior State Attorney at the Attorney General’s chambers recommended another ex-gratia payment of Shs.1,084,707,837/= to be paid to Mrs. Lubega. The then Ag. Solicitor General Mr. Tibaruha went ahead to recommend Shs.1,084,564,637/= as compensation to Mrs. Lubega. The Attorney General approved the payment. He however recommended that the payment be made to the petitioner and NOT to Mrs. Lubega as an individual.
The above decision was communicated to M/s Mulira & Company Advocates counsel for both Mrs. Lubega and the petitioner, this was on 12th July 2001. By then a voucher of Shs. 500Million had already been approved as part payment of Shs. 1,084,564,637/=, approved claim.
Apparently someone, tipped the Inspectorate of Government about the impending payment, which that person indicated was doubtful.
On 20th July 2001, the Inspector General of Government under his own hand countermanded the said payment of Shs. 500 Million to the petitioner or Mrs. Lubega. The reason given in that letter, for the countermand was that the Inspectorate of Government had received a complaint in respect of the same. The letter was addressed to the Secretary to the Treasury and copied to the Director Banking, Bank of Uganda and also to the General Manager Orient Bank.
Following the countermand no payment was made. The Inspectorate of Government went ahead and investigated the matter. The findings are contained in a report which was communicated to the Attorney General in a letter dated 2nd November, 2011. The Attorney General re-considered the matter, following that report and in letter to the Inspector General of Government dated 19th February 2002, he rescinded the decision to pay the petitioner or Mrs. Lubega the claim of Shs.1,084,707,837/=.
The petitioner, then filed a suit at the High Court vide Miscellaneous Application No. 593 of 2003 Kikonda Butema Farms Ltd vs. The Inspector General of Government. The application sought to quash by way of certiorari the decision of the Inspector General of Government countermanding payment of Shs.500 Million to the petitioner. It also sought another such order of certiorari quashing the Inspector General of Government report on the matter.
In a lengthy, but well written and well reasoned judgment, His Lordship Justice Rubby Opio Aweri (J) (as he then was) dismissed the application on 15th December 2003. The learned judge upheld the IGG’s report and its findings.
The petitioner then filed a suit at the High Court of Uganda at Nakawa, vide High court Civil Suit No. 0250 of 2002, Kikonda Butema Farm Ltd vs. The Attorney General. The claim in the suit was “for Shs. 1,015,437,537, being the value of the plaintiff’s farm, machinery and equipment that were converted by the government” the suit was heard by Hon. Justice C.A Okello (J).
The High Court dismissed the suit after a full trial in a judgment dated 4th June 2003, which was delivered by a Deputy Registrar on 31st August 2004. Apparently, from the remarks made by the judge, the petitioner had in 2001 filed an application for leave to apply for prerogative orders, vide High Court Miscellaneous Application No. 130 of 2001, which was heard exparte and dismissed by Hon. Justice Katutsi. The petitioner then appealed to the Court of Appeal; vide Court of Appeal Civil Appeal No. 35 of 2002. The Court of Appeal allowed the application and sent back the matter for hearing de novo. It appears that this was the application that was heard and dismissed by Justice Opio-Aweri (J) (as he then was).
The petitioner then sought to appeal against the said judgment of Judge C.A Okello in H.C.C.S No. 250 of 2002 referred to earlier. He was out of time. The petitioner then filed an application to the Court of Appeal seeking for extension of time within which to appeal vide Court of Appeal Civil Application No. 86 of 2005. This application was also dismissed on 21st February 2006. The petitioner later filed this petition on 12th February 2012.
This petition was brought under both Articles 50 and 137 of the Constitution.
Article 50 is not applicable in petitions such as this one that seek Constitutional Interpretation. It deals exclusively with matters of enforcement of rights.
This petition can only be considered under the provision of Article 137(1), (2) and (3).
The principles of constitutional interpretation are now well settled and we shall not belabor to reproduce them here. They are set out in detail in several judgments of this Court. We shall only reproduce them as they are summerised by Hon. Justice L.E.M. Kikonyogo, DCJ (as she then was) in the – Foundation for Human Rights Initiatives vs. The Attorney General Constitutional Petition No. 20 of 2006.
“In matters involving interpretation of the Constitution or determination of the Constitutionality of Acts of Parliament Courts are guided by well settled principles. One of the Cardinal principles in the interpretation of constitutional provisions and Acts of Parliament is that the entire Constitution must be read as an integrated whole and no one particular provision should destroy the other but sustain the other (See Tinyefuza vs. Attorney General Constitutional Petition No.1 of 1996”
Another important principle is that all the provisions concerning an issue should be considered together to give effect to the purpose of the instrument see SOUTH DAKOTA VS. NORTH CAROLINA 192, US 268, 1940 PED 448.
Thirdly the purpose and effect principles apply where the Court considers the purpose and effect of an Act of Parliament so as to determine its constitutionality The Queen vs. Big Drug Mark Ltd (1966) LRC (Const.) 332. Attorney General vs. Abuki, Constitutional Petition No. 1 of 1998.
Following the Constitution and in particular that part, which protects and entrenches Fundamental Rights and Freedoms, must be given a generous and purposive interpretation. Attorney General vs. Modern Jobe (1984) 689; Unity Dow vs. Attorney General of Botswana 1992 (L RC 662).”
In resolving this petition we have kept the above principles in mind. We have carefully listened and considered the address of both learned counsel and noted arguments, they have both advanced. We have also carefully perused the petition together with the accompanying affidavits and all the annextures thereto. We have noted with appreciation the authorities submitted by both counsel.
Both counsel submitted written conferencing notes which we have also carefully perused. We note however, that the parties did not file a joint conferencing memorandum.
The issues set out in the petitioner’s conferencing notes, differ from the grounds set out in the petition. The petitioner attempted in the conferencing notes to bring up issues that do not arise from the petition. Issues for resolution should always arise from the grounds set forth in the petition itself. Otherwise such issues would have no basis.
The issues set out by the respondent in this conferencing notes also differ from those set out by the petitioner and do not address all grounds in the petition.
We shall therefore proceed to resolve this petition following the grounds that are set out in the petition and the respondent’s reply thereto.
Mr. Peter Mulira learned counsel for the petitioner argued that under Article 119(a) of the Constitution the Attorney General is enjoined to represent the Government in Courts of law and any other legal proceedings to which government is a party.
That the Inspectorate of Government is a government department and not an autonomous legal entity following the judgment of the Supreme Court in the case of Gordon Sentiba vs. The Inspectorate of Government. That Article 119(3) makes the Attorney General the principal legal adviser of the Government and its advice is binding on all government departments including the Inspector General of Government. That the Attorney General having advised government to pay compensation to the petitioner the act of the Inspector General of Government (hereinafter referred to as the IGG) stopping or countermanding that payment was unconstitutional.
He argued that Article 230 of the Constitution does not give the IGG general powers in form of an injunction against government, that the IGG is not a fire fighter or a Policeman, he is an official who is there to preserve public interest against corrupt government officials. He concluded that the power granted to the IGG under Article 231 are only in respect of corruption and abuse of office and that there was no alleged corruption or abuse of office involving the petitioner or its claim. Mr. Mulira went on to submit that once the Attorney General has given his opinion no other government department can go against that opinion, including the IGG since the Inspectorate of Government is also a government department. He referred us to the public service standing orders which he argued are to the effect that Attorney General’s decision is final. That the report of the IGG is void in as far as it seeks to nullify the opinion of the Attorney General, in a matter where there was no allegation of corruption, abuse of authority or abuse of public office. Such an act by the IGG he contended contravened Article 230 of the Constitution.
Mr. Bafirawala in response submitted that the petition was incompetent and an abuse of Court process. That the matters raised in the Petition were
res judicata. That they had been adjudicated upon in a number of other suits and determined. That the petitioner was trying to re-open the case by disguising it as a constitutional petition.
He submitted that stopping of the payment of Shs. 500 Million to the petitioner was done by the IGG to as mandated under Article 225(1) (e) of the constitution which gives him a duty and authority to investigate any act, omission or advice or recommendation by a public officer or any authority to which that Article applies.
That the IGG had received a complaint in which it was alleged that the respondent had been paid Shs.100Million ex-gratia upon the advice of the Attorney General as full and final settlement of its claim. Subsequent to that the Shs.500Million had been authorized by same office of the Attorney General and was about to be paid to the petitioner. He argues that the Constitution grants power to the IGG to investigate “any acts, omissions and or advice” and that is what the IGG did. That the IGG could not just have sat back and waited for public funds to be paid out under unclear circumstances. He had to countermand the payment and commence investigations.
He asserted that the IGG was justified in countermanding the payment. He referred us to the opinion of the late Ayume the former Attorney General which reversed the earlier opinion of the Attorney General to pay the petitioner and to the affidavit of Mr. Nyombi the current Attorney General which also agrees with that of late Ayume that there was no basis for paying the petitioner any more money.
He then submitted that the IGG is mandated to issue statutory biannual reports to Parliament but also has a duty to make routine reports on other matters under investigation, by his office.
The petition set out five grounds and we shall have them resolved in the order they are set out in the petition.
Ground one states as follows:-
1(a) That the act of the Inspector General of Government in stopping payment to the petitioner of Shs. 1,084,707,837 after the Attorney General had advised the Ministry of Finance to pay the said compensations was inconsistent with Article 26(2) (b) of the Constitution in that it contravened the petitioner’s right to adequate compensation.
We do not find anything in the above ground that requires the interpretation of the Constitution by this court. The petitioners seem to be complaining of an infringement of a right to adequate compensation. Enforcement of rights is provided for under Article 50 of the Constitution which stipulates as follows:-
50(1) Any person who claims that a fundamental right or other right or freedom guaranteed under this Constitution has been infringed or threatened is entitled to apply to a competent Court for redress which may include compensation.
We agree with the reasoning of Hon. S.W.W. Wambuzi, CJ (as he then was) in Ismail Serugo vs. Kampala City Council and The Attorney General Constitutional Appeal No. 2 of 1998 where he stated as follows:-
“In my view for the constitutional court to have jurisdiction the petition must show on the face of it that interpretation of the Constitution is required. It is not enough to allege merely that a constitutional provision has been violated. If therefore any rights have been violated as claimed, they are enforceable under Article 50 of the Constitution by another competent court”.
This court has held that a competent court for the purpose of Article 50 is the High Court. This Court may also enforce rights under Article 137 of the Constitution, however in that case there must first exist an issue for the interpretation of the constitution.
This is how this issue was ably explained by Hon. S.W.W. Wambuzi, CJ in the Serugo case (supra).
“Here the appellant alleges his rights were being violated and claims compensation. One cannot rule out malicious prosecution, wrongful detention or false imprisonment. There are matters dealt with under specific laws. They can be enforced by a competent court and should a question of interpretation of a provision of the Constitution arise that question can always be referred to the Constitutional Court. I am aware that the constitutional court is also a competent court under Article 50 but this court has already held that the constitutional court has no jurisdiction in any matter which does not involve the interpretation of the Constitution. See Attorney General vs. David Tinyefuza, Constitutional Appeal No. 1 of 1997”
We agree entirely with the above proposition of the law, in any event we are bound to follow it. The issues raised in ground one should have been resolved by a suit instituted in a competent court. Indeed that is what exactly happened, when the petitioner filed High court Civil Suit No. 0250 of 2002 Kikonda Butema Farm Ltd vs. The Attorney General.
In this suit the petitioner was claiming “Shs. 1,015,437,537 being the value of the plaintiffs farm, machinery and equipment that were converted by the government”. All the issues raised in this petition and specifically those raised in ground one were raised in the suit. The suit was heard interparties evidence was adduced, and the claim was dismissed.
The petitioner had also made another attempt to have the decision of the IGG complained of in ground one quashed by way of certiorari vide High Court Miscellaneous Application No. 593 of 2003 , Kikonda Butema Farm Ltd vs. The Inspector General of Government. The application was dismissed. We find that ground one does not raise any question for Constitutional Interpretation by this Court. We also find that the issues raised in that ground have already been determined by the High court.
Accordingly this ground must fail.
GROUND 2: This ground is set out in the petition as follows:-
(b) That the act of the Inspector of Government in stopping the said payment was inconsistent with Article 230 (2) of the Constitution in that it did not result from an investigation within the meaning of Article 230 (1) of the constitution.
The argument of Mr. Mulira, learned counsel for the petitioner, as we understood it, is that the IGG’s power set out in Article 230 (1) must result from investigations of cases involving corruption, abuse of authority or of public office. That the act of the IGG stopping the payment was not resulting from any investigations and as such contravened Article 230 (1) of the Constitution.
An investigation is not a single event, but a series of invents and transactions that often last a long period of time. The stopping of payment is such a one event in a series of many others that constitute investigations.
In any event this was one of the issues in the case that were instituted at the High Court above mentioned. We find that the act of the IGG complained of in ground 2 did not in any way contravene Article 230 (2) nor was his action of stopping the payment to the petitioner inconsistent with the Constitution. That act complained of by the petitioner was clearly envisaged under Article 230(1) and 230 (2) of the Constitution. The very reason why the Constitution granted the IGG special power under Article 230 was to enable him do exactly what he did in this case.
The IGG is not an ordinary ombudsman as Mr. Mulira seems to suggest. The authorities submitted are distinguishable. They relate to the ordinary and general powers of an ombudsman. Under the Constitution of Uganda the IGG is not an ordinary ombudsman. The Constitution itself clearly sets out general functions of the IGG under Article 225. However the Inspectorate of Government is granted special jurisdiction under Article 226 as an independent body not subject to the direction or control of any person or authority and only responsible to Parliament under Article 227.
We hasten to add here that Article 227 makes it independent of the office of Attorney General.
Article 230 the Constitution grants the Inspectorate of Government special powers, to investigate, cause investigation, arrest, cause arrest, prosecute or cause prosecution of cases involving corruption, abuse of authority or of public office. It is this special power that the IGG invoked to countermand the payment to the petitioner. We find that in doing so the IGG did not contravene any provision of the constitution.
Ground two must also fail, as it is devoid of any merit.
GROUND 3 states as follows:-
“That a report by the Inspector General of Government to the Attorney General and to the petitioner was inconsistent with Article 231 of the Constitution”.
We are at loss as to what the petitioner seeks this court to interpret under the ground 3 as framed above. Clearly there is nothing that requires interpretation here.
Mr. Mulira, submitted that under Articles 231 the IGG is required to submit a report only to Parliament. And that it is the only report he can make and submit under the Constitution. That the report complained of in this petition was not such a report as envisaged under Article 231 and therefore it was inconsistent with that Article.
We cannot agree with that argument at all. The functions of the IGG under Articles 225, 226 and 230 all envisage and entail writing of various reports. Suffice it to say the work of the IGG requires and involves report writing. The report to parliament is one of such reports, but certainly not the only one.
This ground has no merit and it must fail.
Ground 4, states as follows:-
(d) That the review by the Inspector General of government of a legal opinion given by the Attorney General to a Government department in his constitutional capacity as Chief Legal Advisor to government contravened Articles 119(3), 225(1) (e) and 226 (2) (b) of the Constitution.
We shall resolve the above ground together with ground 5 which states as follows:-
(e) That the purported review by the Inspector General of Government of his predecessor’s decision after it had been acted upon by a department of government was inconsistent with Articles 119(3) of the Constitution.
Mr. Mulira’s argument is, that under Article 119 (3) of the Constitution the Attorney General is the principal legal advisor of the Government. That the Inspectorate of Government is not an autonomous body but it is a government department and as such it is bound to follow and implement the legal advice of the Attorney General in all matters. That the letter of the IGG countermanding the cheque to the petitioner and the subsequent report on the matter, amount to review or reversal of the Attorney General’s advice and therefore to that extent those acts contravened Articles 119 (3), 225 (1) (e) and 226 (2) (b) of the Constitution.
For clarity we have reproduced the above mentioned Articles of the Constitution:-
“119 (3) The Attorney General shall be the principal legal advisor of the government.
225 (1) The functions of the Inspectorate of Government shall be prescribed by Parliament and shall include the following:-
(e) to investigate any act, omission, advice, decision or recommendation by a public officer or any other authority to which this article applies, taken, made, given or done in exercise of administrative functions;”
There is no such an Article as 226(b) mentioned in ground 5 of the petition above in the Constitution. It could have been a slip of the pen. The conferencing notes were not helpful in this regard as no mention is made therein of any such article of the Constitution. We are left with no option but to ignore it.
In support of the above grounds Mr. Mulira relied on the authority of Bank of Uganda vs. Banco Arabe Espanol SCCA No. of 2001 in which Hon. G.W. Kanyeihamba JSC (as he then was) held as follows:
“In my view, the opinion of the Attorney General as authenticated by his own hand and signature regarding the laws of Uganda and their effect or binding nature on any agreement, contract or other legal transaction should be accorded the highest respect by government and public institutions and their agents. Unless there are other agreed conditions, third parties are entitled to believe and act on that opinion without any further inquiries or verifications. It is also my view that it is improper and untenable for the government, the Bank of Uganda or any other public institution or body in which the Government of Uganda has an interest, to question the correctness or validity of that opinion in so far as it affects the rights and interests of third parties”
With all due respect to learned counsel for the petitioner we are unable to agree that this authority applies in this particular case. The circumstances of this case are very different.
First and foremost the opinion of Attorney General which was reviewed by the IGG as set out is ground 4 was itself later reviewed and reversed by the Attorney General himself. The affidavit of the Hon. The Attorney General Hon. Peter Nyombi sworn in support of the respondent’s answer to the petition on 27th March 2012 clarifies on this matter.
The Attorney General states in paragraph 8 of his affidavit that
“the second claim was surprisingly considered by the Attorney General’s chambers, contrary to Attorney General’s decision of 4th August 1994”.
The Hon the Attorney General had reversed the earlier decision based on the IGG’s report following investigations on the matter. The Attorney General’s letter was addressed to the IGG. It was copied to the Ministry of Finance, The Minister of Justice, The Minister in charge of the Presidency, The Minister of ethics and Integrity, among others.
If the argument is that a government department should comply with the Attorney General’s opinion then it is this opinion contained in the letter of 4th August 1994 they should have complied with. And they did comply by stopping the payment.
It is indeed a curious proposition of the law that the IGG cannot question the Attorney General’s opinion. Mr. Mulira relied on the provision of the Public Service Act and standing orders issued by the Minister under the act, which are to the effect that “The Attorney General’s Opinion expressed personally or through the Solicitor General is final”.
It is important to note that the Public Service Act is 1969 Act. The IGG’s office was only created as a constitutional office in the 1995 Constitution. The Public Service Act must therefore be construed in conformity with the Constitution as provided for under Article 274.
Mr. Mulira cited H.W.R. Wade an Administrative Law 8th Edition P.88 where the learned author states as follows:
“An ombudsman requires no legal powers except powers of inquiry. In particular he is in no sense a Court of Appeal and he cannot alter or reverse any government decision. His effectiveness derives entirely from his power to focus on public and Parliamentary attention upon citizen’s grievances”
This is true of the powers of an ombudsman in England and may be other common law jurisdictions, but not in Uganda. In Uganda the ombudsman was elevated by the 1995 Constitution to a Constitutional Office with special powers. The functions of the IGG as set out in the Constitution go far beyond the ordinary common law functions of ombudsman. The authority cited is therefore not applicable in Uganda.
Article 230 which sets out the special powers of IGG stipulates as follows:-
“230
1). The Inspectorate of Government shall have power to investigate cause investigation, arrest, cause arrest, prosecute or cause prosecution in respect of cases involving corruption, abuse of authority or of public office.
2). The Inspector General of Government may, during the course of his or her duties or as a consequence of his of her findings, make such orders and give such directions as are necessary and appropriate in the circumstances.
3). Subject to the provisions of any law, the Inspectorate of Government shall have power to enter and inspect the premises or property of any department of Government, persons or of any authority, to call for examine and where necessary, retain any document or item in connection with the case being investigated, found on the premises; and may in those premises, carry out any investigation for the purpose of its functions.
4). The Inspectorate of Government shall when enforcing the leadership Code of Conduct, have all the powers conferred on it by this Chapter in addition to any other powers conferred by law.
5). Subject to this Constitution, Parliament shall enact any law necessary for enabling the Inspectorate of Government to discharge its functions effectively and efficiently and, in particular, to ensure that the discharge of those functions is not frustrated by any person or authority.”
Clearly from the above provisions of the Constitution the IGG has powers to review or reverse any opinion including that of the Attorney General where he finds it necessary to do so, or where the circumstances of the case so require. In this particular case however, IGG did not review the decision of the Attorney General. He directed the Secretary to the treasury to stop a questioned payment until he had investigated the matter. This was well within his powers, as set out in Article 230 of the Constitution.
Indeed when the matter was investigated and a report made, the Attorney General did reverse his own decision upon reading the IGG’s report on the matter.
Mr. Mulira argued that the purported review by the Inspector General of Government of his predecessor’s decision after it and been acted upon by a department of government was inconsistent with Articles 119 (3) of the Constitution.
We have found nothing in the petition or the accompanying affidavit to suggest that the Inspector General of Government ever reviewed his predecessor’s decision, as alleged in that ground.
We find this ground to be misconceived. Even if the ground had referred to the Attorney General and not the IGG, we would still have held that the Attorney General can review his decision or even reverse it even if third parties had acted on it. To hold otherwise would be to create an absurdity, where opinions of Government once made and acted upon cannot be reversed. If a party is aggrieved by the review of any decision, we think it would be well within that party’s right to seek legal redress in any competent Court of Law to enforce him or her rights but not to seek an interpretation of the constitution. There is nothing requiring constitutional interpretation.
Both grounds 4 and 5 must therefore fail as they are misconceived and devoid of any merit.
The respondent had raised in defence the issue of res-judicata. That all the matters raised in this petition had been litigated upon before and determined by Courts of Competent Jurisdiction. We agree that in ordinary cases this matter would have been res judicata.
However since the constitutionality of this matter had not been raised in any of the said cases and since it is only this court that is seized with the original jurisdiction over the interpretation of the Constitution, we find that res judicata does not apply in this case.
The only aspect of this claim that had not been determined was the constitutionality of the acts of the IGG. This has now been settled.
This petition therefore fails and is accordingly dismissed with costs.
Dated at Kampala this.....08th ......... day of......November....... 2013.
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HON. MR. JUSTICE REMMY KASULE
JUSTICE OF APPEAL/CC.
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HON. MR.JUSTICE ELDAD MWANGUSYA
JUSTICE OF APPEAL/CC.
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HON. LADY JUSTICE FAITH E.K. MWONDHA
JUSTICE OF APPEAL/CC.
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HON. MR. JUSTICE KENNETH KAKURU
JUSTICE OF APPEAL/CC.
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HON. MR. JUSTICE GEOFREY KIRYABWIRE
JUSTICE OF APPEAL/CC.
