Uganda Legal Information Institute - Equality before the law and equal protection of the law https://old.ulii.org/tags/equality-law-and-equal-protection-law en Dott Services Ltd & Anor v Attorney General (MISCELLANEOUS CAUSE NO. 137 OF 2016) [2016] UGHCCD 130 (21 December 2016); https://old.ulii.org/ug/judgment/hc-civil-division-uganda/2016/130 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/hr" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">HR</a></li><li class="field-item odd"><a href="/tags/have-his-cause-heard-fair-trial" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Have his cause heard (fair trial)</a></li><li class="field-item even"><a href="/tags/equality-law-and-equal-protection-law" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Equality before the law and equal protection of the law</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p><strong>THE REPUBLIC OF UGANDA</strong></p> <p><strong>IN THE HIGH COURT OF UGANDA AT KAMAPLA</strong></p> <p><strong>CIVIL DIVISION</strong></p> <p><strong>MISCELLANEOUS CAUSE NO. 137 OF 2016</strong></p> <p><strong>IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW</strong></p> <p> </p> <p><strong>1. DOTT SERVICES LTD</strong></p> <p><strong>2.  GENERAL NILE COMPANY FOR    :::::::::::::::::::::: APPLICANTS </strong></p> <p><strong>     ROADS AND BRIDGES</strong></p> <p><strong><em>Versus</em></strong></p> <p><strong>ATTORNEY GENERAL   ::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT</strong></p> <p> </p> <p><strong>BEFORE: THE HON JUSTICE STEPHEN MUSOTA</strong></p> <p> </p> <p><strong>RULING</strong></p> <p>This Ruling is in respect of the two applicants. This is an application for Judicial Review of the findings and recommendations of the Commission of Inquiry into allegations of mismanagement, abuse of office and corrupt practices in Uganda National Roads Authority (UNRA) in so far as the findings affect the applicants. The application is brought under <strong>Sections 36(1) (b)&amp;(c), 41 and 42 of the Judicature Act Cap 13, Rules 3,4 and 6 of the Judicature (Judicial Review) Rules 2009, section 98 of the Civil Procedure Act, O.52 rr 1 and 3 of the Civil Procedure Rules.</strong></p> <p> The Applicants seek the following orders;</p> <ol> <li>An order of certiorari quashing the findings and recommendations of the commission of inquiry into allegations of mismanagement, abuse of office and corrupt practices in Uganda National Roads Authority (UNRA), contained in the report affecting the applicants</li> <li>An order of prohibition stopping the government of Uganda from enforcing the findings and recommendations of the commission of inquiry into allegations of mismanagement, abuse of office and corrupt practices in the Uganda National Roads Authority contained in the report against the applicants.</li> <li>Provision be made for the costs of the application</li> </ol> <p> </p> <p>The grounds of the application are briefly set out in the application and in the affidavit in support of the application. In summary they are that the commission acted unfairly when they denied the applicants a chance to submit their evidence, that the commission acted illegally when it refused and failed to follow the terms of the contract between the applicants and UNRA, that the commission’s findings and recommendations were irrational because they sought to punish the applicants for the shortcomings and failures of the UNRA officials and consultants, that the applicants applied to the respondents for a copy of the commission’s report but the respondent refused to avail a copy and lastly that if the orders sought in this application are not granted the applicants shall suffer irreparable economic loss and will wind up their businesses therefore it is fair and just that this application be granted.</p> <p> </p> <p>The applicants filed an affidavit in support of the application by Boinapally Venugopal Rao dated 13th July 2016 and filed in this court on 14th July 2016. The respondent filed an affidavit in reply by Richard Adrole State Attorney dated 22nd August 2016 and filed in this court on 22nd August 2016 and a supplementary affidavit in reply dated 27th October 2016 and filed in this court on the same date. The applicants filed an affidavit in rejoinder filed in this court on 28th October 2016.  </p> <p> </p> <p>At the hearing of this application Mr.  Enos Tumusiime of M/s Tumusiime, Kabega &amp; Co. Advocates appeared for the applicants and Ms Emelda Adongo of the Attorney General Chambers appeared for the respondent.</p> <p> </p> <p>Briefly the background of this application is that as demonstrated in paragraphs 1-17 of the affidavit in support of this application, the applicants bided and won contracts for the construction of several roads for the Uganda National Roads Authority which were completed as of July 2016. On 8th June 2015 the applicants through their Joint Venture Director got to learn from the print and electronic media that the president of Uganda had appointed a Commission of Inquiry to inquire into allegations of mismanagement, abuse of office and corrupt practices in UNRA. On the 27th May 2016 in the New Vision Newspaper at page 8, the applicants learnt that the Chairperson of the Commission of Inquiry Hon Lady Justice C. Bamugemereire had presented the report of the Commission of Inquiry to the President of Uganda. The applicant applied to the respondent for a copy of the report but did not get a response. On 14th June 2016 the applicants obtained a copy of the report of the Commission of Inquiry comprising of five (5) volumes out of 6 from third parties. The applicants were aggrieved by the contents of the Report of the Commission of Inquiry in as far as, according to them, the recommendations in the report were unfair, based on misstated facts, and contrary to the contracts signed. The applicants were also dissatisfied in as far as they were blamed for the actions of the UNRA staff and consultants and that it was illogical for the Commission of Inquiry to blame the 1st applicant for the physical progress of the work and further it was illogical for the commission to blame the applicant for having been allegedly unjustifiably awarded an extra 10.5 months which was subsequently paid for. The applicants are also dissatisfied because the commission invited them for questioning on a different contract yet they went on to ask for other contracts which their representative had not prepared for. It is because of these and other grievances that the applicants have filed this application.</p> <p> </p> <p>This court directed the parties to file written submissions. The applicants filed on 13th September 2016, the respondent filed on 3rd November 2016 and the applicant filed a rejoinder on 9th November 2016.</p> <p>In their submissions the applicants raised the following issues:</p> <p>1.         Whether the commission of inquiry complied with the law and whether there are errors of fact and law in the report of the commission of inquiry.</p> <p>2.         Whether the findings and recommendations of the commission of inquiry were irrational.</p> <p>3.         Whether the findings and recommendations of the commission of inquiry were procedurally improper.</p> <p>4.         Whether the commission of inquiry followed the principle of proportionality and legitimate expectations.</p> <p>5.         Whether the Judicial Review orders of certiorari and prohibition should issue.</p> <p> </p> <p>Although the respondents attempted to raise different issues from the ones raised by the applicants I find that the issues as raised by the applicant capture the gist of this application and cover the issues raised by the respondent in submissions. This court therefore adopts the issues identified by the applicants. I shall deal with the issues in the order in which they have been identified.</p> <p> </p> <p>But it is important to first note that the <strong>Judicature (Judicial Review) Rules 2009</strong> do not strictly outline the decisions that are amenable to Judicial Review. This means that the common law principles will be applicable and at common law I note that the court has jurisdiction to determine whether a commission’s terms of reference are lawful per <strong>Cock Vs Attorney-General (1909) 28 NZLR 405 (CA),</strong> to determine whether a commission is acting within its terms of reference per <strong>Re Erebus Royal Commission (No 2) [1981] 1 NZLR 618 (CA),</strong> to intervene to ensure that the requirements of natural justice are met per <strong>Re Royal Commission on State Services [1962] NZLR 96, 117 (CA);</strong> <strong>Lower Hutt City Council Vs Bank [1974] 1 NZLR 545 (CA)</strong> and, may review an alleged error of law where it materially affects a matter of substance relating to a finding on one of the terms of reference per <strong>Peters v Davison [1999] 2 NZLR 164 (CA) (review of a Royal Commission for error of law)).</strong></p> <p> </p> <p>In the Kenyan Case of <strong>Republic Vs. Judicial Commission of Inquiry into Goldenberg Affair, Ex Parte Hon. Prof. Justice of Appeal Bosire &amp; Another Ex Parte Hon. Prof. Saitot [2007] 2 EA 392</strong> a commission of inquiry was subjected to judicial review. Therefore the proceedings, recommendations and findings of a commission of inquiry are amenable to judicial review.</p> <p> </p> <p>Issue 1.            Whether the commission of inquiry complied with the law and whether there are errors of fact and errors of law in the report of the commission of inquiry.</p> <p> </p> <p>In their submissions counsel for the applicants indicated that this issue goes to the ground of illegality.</p> <p> </p> <p>In resolving this issue counsel submitted that The commission of inquiry was set up under the Commission of Inquiry Act Cap 166 Laws of Uganda under section 6 where the duties of the commissioners are to <em>interalia</em> make a full, faithful and impartial inquiry into the matters specified in the commission. That therefore the commission of inquiry was bound to follow the Constitution of the Republic of Uganda and all other laws made under the said constitution. Counsel also outlined the Commission’s terms of reference which he submits the commission should have complied with strictly.</p> <p> </p> <p>Counsel cited the decision of Lord Diplock in the celebrated judgment of the House of Lords, in the case of <strong>Council of Civil Service Unions and Ors Vs Minister For Civil Service [1985] 1 AC 374</strong> where he held that the decision maker must understand correctly the law that regulates his decision-making power and must give effect to it.</p> <p> </p> <p>Further counsel cited the Kenyan Case of <strong>Republic Vs Judicial Commission of Inquiry into Goldenberg Affair, Ex Parte Hon. Prof. Justice of Appeal Bosire &amp; Another Ex Parte Hon. Prof. Saitot [2007] 2 EA 392</strong> where it was held that a commission appointed under a Commission of Inquiry Act  has a statutory duty to submit a full, fair and impartial report and failure to do so may render the commission’s findings, determinations and recommendations <em>ultra vires</em> the Act and in particular section 7 (in the case of Uganda section 6). Whether or not the commission has jurisdiction depends on any finding whether or not it acted within its purview under the section and terms of the commission. In the case of the commission, the duty of fairness is a statutory requirement and it’s so expressed. The duty to render a full, faithful and an impartial report is statutory and there is no need to have it implied.</p> <p> </p> <p>Counsel further submitted that in this case the Commission of Inquiry made several alleged findings against the applicants which are illegal in as far as they did not take into consideration the contracts between the applicants and UNRA. That the illegal findings and recommendations of the Commission of inquiry are under Para 26 of Mr. Rao’s Affidavit and at page 542 of the Report of the Commission of inquiry which are;</p> <p>1.         That there was poor planning of works leading to excessive revision of time and costs;</p> <p>2.         That there was late commencement of works;</p> <p>3.         That the delays were caused by the 1st applicant who caused UNRA financial loss, page 563 of the said report;</p> <p>4.         That the 1st applicant did not have adequate capacity in terms of numbers and competence of key personnel, page 564 of the said report; and</p> <p>5.         That the 1st applicant did not have adequate equipment and there was frequent breakdown of equipment and at times, the equipment was idle page 564 of the said report</p> <p> </p> <p>On the Tororo- Mbale road Counsel also submitted that UNRA breached the terms of the contract. For this submission counsel relied on the paragraph 35 of Rao’s affidavit. That UNRA changed the scope of works as per annexture R-3 Volume 4 of Mr. Rao’s affidavit. That the new scope of works was a reconstruction of the road which involved a different work method, different quantities of materials which increased tremendously and culminated into a second addendum, increasing the contract price to UGX 63,804,103,546/= (Annex “Q”, volume 4 of Mr. Rao’s Affidavit).</p> <p> </p> <p>On Mbale-Soroti road contract counsel submitted that whereas the contract was supposed to commence on 21st November 2010 and the 1st applicant fully and duly mobilized on to the site the strip maps delayed and were delivered by the consultant on 1st August 2011 but again without the construction drawings. That the consultant issued the data in a piece meal manner and by 19th March 2012, the 1st applicant had not received the detailed design drawings, as per para 48 49 and 50 of Mr. Rao’s affidavit. That UNRA totally changed the scope of the works to full construction of the road. That therefore the 1st applicant’s progress was frustrated by the late handover of the site, late instructions, late issue of drawings/designs and change of scope of works and method of execution as per para 5 of Mr. Rao’s affidavit. That therefore it is clear here that it is UNRA who breached the terms of the contract and caused the delay. In that regard the commission of inquiry erred not only on the facts but also on the law when it condemned the 1st applicant for breach of the terms of the contracts, under Section 33(1) of the Contracts Act. That such errors of law and fact are ultravires and reviewable by the Judicial Review Orders of certiorari and should be quashed. Further that the commission of inquiry also made wrong findings as per paras 26(f) to (n) of Mr. Rao’s affidavit<strong>.</strong> They are wrong because the real facts are as stated in annextures “A”, “B”, “C”, “D”, “E”, “F”, “G”, “I”, “J”, “K”, “M”, “N” and “O”. That these annextures show that the road works were tendered under International Competitive Bidding and Open Domestic Bidding under the Public Procurement and Disposal of Public Assets Act (PPDA) and the applicants were the best evaluated bidders and with the consent of the Solicitor General signed the contracts. That due to changes in scope of works along the way this caused variations to the contracts and contract amounts. Addenda to the contracts were prepared by UNRA and were approved by Solicitor General before they were signed by the 1st applicant as per annexture “Q” for Tororo –Mbale road, annexture “U” for the Mbale-Soroti road, and annexture X, Y and Z for Jinja-Kamuli Road and annexture “EE” for the Ishaka-Kagamba Road.</p> <p> </p> <p>Further counsel submitted that every payment to the applicants was according to contracts entered into by UNRA and the applicants. The bills of quantities formed part of the contracts. Therefore there was no collusion with Consultants, Ministers or UNRA officials and variation of the contracts rates was lawfully done and approved by both PPDA and the Solicitor General. That therefore the findings of the commission of inquiry in this regard are errors of fact and errors of law and should be quashed forthwith. That therefore the allegations of the Commission that the applicants defrauded Government of Uganda and were irregularly paid, or that they caused financial loss to UNRA or Government are errors of fact and law.</p> <p> </p> <p>Further on the Jinja –Kamuli Road contract counsel submitted that as pointed out in Mr. Rao’s affidavit paras 66, 67, and 68 the contract was signed on 13th December 2010, the contract works were to be completed in 18 months and to commence in two weeks from date of signature of contract. But UNRA by that time had not even appointed a consultant to supervise the road works. The consultant was appointed on 4th February 2011 and the Consultant did not submit a Draft Design Review Report until 14th October 2011, ten months into the contract period. Even when the consultant submitted the Design Review report it was for a new, improved and changed scope of works as stated in Paras 67 of Mr. Rao’s affidavit. The original scope of works was improvement of road drainage, rehabilitation of existing road base through cement stabilization, construction of crushed stone base among others. That therefore the findings by the commission were in error and should be quashed.</p> <p> </p> <p>On the Ishaka –Kagamba Road contract the applicants submitted that as per para 79 of Mr. Rao’s affidavit, the applicants after having been evaluated by UNRA as the best bidder, signed a contract with UNRA on 1st December 2011  to upgrade the road from gravel to paved (bitumous) standard. UNRA had not yet appointed consultants at the time of signature of the contract. Later UNRA realized they had not yet acquired the land privately owned by owners who had to be compensated so they appointed sub consultants two and a half years after. While all this was going on, the applicants had to wait  and even waited a further six months for the compensated persons to leave the land.</p> <p> </p> <p>Further counsel submitted that it was an error of law and fact when the Commission of Inquiry blamed the applicants for poor planning, late execution of works, causing delays and the resultant financial losses, not having adequate and competent personnel or adequate and fit equipment and for applying for and obtaining extension of time and payment therefore (prolongation costs) of the contract as all these extra costs were wholly caused by UNRA. Secondly that it was an error of law for the commission to blame the delays on extension of time on the applicants when the contract and the addendum, annex EE, provided for compensation in such event. Counsel also identified other errors of law and fact at pages 21-23 of the submissions of the applicant.</p> <p> </p> <p>He also submitted that the only reply to the errors of law and fact by the respondent is in para 13 of the Affidavit of Mr. Adrole where he only states that he knows the commission carried out thorough investigations and relied on all the information, interviews, oral submissions and evidence provided by the applicants before making recommendations and findings and therefore it was not biased. That therefore the averments in Mr. Rao’s affidavit are not rebutted and denied so they are accepted. For this submission counsel relied on the cases of:-</p> <p> <strong>Samwiri Musa Vs Rose Achen [1978] HCB 297</strong> per Ntabgoba J (as he then was),</p> <p><strong>Energo Project Vs Kasirye–Gwanga Misc App No. 558 of 2009 </strong>per Murangira J, and</p> <p><strong> Makerere University Vs Namirembe Bwanga Misc App No. 658 of 2013</strong> per Bashaija J where it was stated that where facts are sworn to in an affidavit and these are not specifically denied or rebutted by the opposite party, the presumption is that such facts are accepted.</p> <p> </p> <p>Learned counsel also cited Michael Fordham who states in <strong>Judicial Review Handbook 3rd Edition at page 728 </strong>that a body must not make errors of precedent of fact, conclusions unsupported by evidence or fundamental factual errors…. if a public body considers the factual trigger to exist when in truth it does not exist, the body is proceeding to exercise a function which in truth is beyond its powers. This justifies the court in investigating for itself the key question of fact on all available material. Further counsel submitted that relying on the same author, instances that justify court’s intervention are;</p> <ol> <li>A mistake as to fact can vitiate a decision as where the fact is a condition precedent to an exercise of jurisdiction;</li> <li>Where the fact is the only evidential basis for the decision.</li> <li>Where the fact as to a matter which expressly or impliedly had to be taken into account.</li> <li>Where the finding is out of tune with evidence.</li> <li>Where a finding is perverse or the commissioners have misdirected themselves on law, the determination cannot stand.</li> </ol> <p> </p> <p>Learned counsel also submitted that since anything not authorized by law is ultravires, judicial review will stop the unlawful action as refusal to do so would effectively validate an ultravires act. It is trite that an illegality once brought to the attention of court cannot be ignored. See: <strong>Uganda Inland Port Ltd Vs Attorney General and Great Lakes CFS Ltd Misc App No. 145 of 2007 at page 9</strong> per Bamwine J (as he then was).</p> <p> </p> <p>Learned counsel then concluded that the commission of inquiry did not comply with the law and there were numerous errors of fact and errors of law in the report, hence the illegality and even under this issue the report of the commission of inquiry should be quashed by an order of certiorari.</p> <p> </p> <p>In reply counsel for the respondent submitted that the findings and recommendations of the commission of inquiry were lawful because the Commission was set up under the Commission of Inquiry Act. The terms of reference of the commission of inquiry are at page 438 of the report (Volume 2) and Term 1 was to investigate into the procurement and contract management processes by which UNRA awarded contracts for National Road works. Term 9 was to make appropriate recommendations based on findings for remedial actions or such other action against persons found to have acted improperly in the discharge of their public duties and those persons found to have acted improperly in the discharge of their public duties and those persons who benefited from the impugned actions of the public officials. Term 11 was to make any other recommendations as the commission may consider appropriate in the public interest. That the methodology used by the commission is at page 149-155 of the report. That the commission followed the law and did not commit any errors of fact or errors of law.</p> <p> </p> <p>To demonstrate this the respondent submitted that the Commission was well aware of the contractual obligations as seen at page 151 of the report under item 1.3.4 on document review where it is stated that the commission conducted a review of among others the contract documents, monthly progress reports, contract management files and other laws. That the Commission relied on among others the Consultant’s response in relation to site meetings, letters and progress reports. Witnesses were summoned on each of the selected projects and written statements were sought. The respondent then submitted that the findings and recommendations of the commission of inquiry were properly arrived at considering the methodology used as well as the evidence. That the Commission of Inquiry took into account all the oral and written explanations of the applicants on all issues and came up with recommendations which in their view were appropriate as per pages 559 to 560 of the commission report. That the commission at pages 559-560 of the report shows that the commission interviewed the Contract Manager Eng Okiror who at pages 559 line 18 testified that the contractor did not have capacity in terms of equipment, human and financial resources and this was exhibited by his failure to mobilize in accordance with the contractual requirements which at Page 560 line 15 Mr. Venu the Director of the 1st Applicant also testified in respect of the same. That therefore it cannot be said that there was error of law or fact.</p> <p> </p> <p>Further the respondent submitted that the commission did not commit any error of law. They directed themselves properly in law, understood the law and applied it correctly. That in <strong>Uganda Bankers (Employees) Association Vs National Union of Clerical, Commercial Professional and Technical Employers (1995) IV KALR 30</strong> where Justice Egonda Ntende (as he then was) held that the alleged error of law for purposes of certiorari must be apparent on the face of the record, must be self evident. That the commission of inquiry was properly appointed under the Commission of Inquiry Act, it duly carried out its mandate in line with the terms of reference.</p> <p>Further the respondent submitted that at page 581 of the report of the commission it set out the contractor’s role in the delayed commencement and completion of works which resulted in financial loss. That the applicants’ representative was given an opportunity to explain and at pages 584 of the report the Commission states that it is from this evidence that the Commission deduced that by 18th February 2011 the contractor had not yet mobilized according to the work programme. That therefore there was no error of law or fact.</p> <p> </p> <p>Further that it can also be seen from pages 601-603 of the commission of inquiry report that the Commission relied on the contract between the applicants and UNRA to arrive at its findings which the applicants at paras 24 and 25 of the affidavit of Mr. Rao admit. That therefore basing on section 6 of the Evidence Act the applicants cannot again turn around after admitting and allege that the Commission acted illegally. The respondent then prayed that court finds that the Commission of Inquiry acted lawfully and the report should not be quashed.</p> <p> </p> <p>In rejoinder the applicants submitted that the affidavit of Mr. Rao is largely unanswered specifically paras 1-59, 62-100, 104-111 and therefore court should uphold them as true. For this submission counsel relied on the case of <strong>Samwiri Musa Vs Rose Achen [1978] EA 297</strong> and <strong>Makerere University Vs Namirembe Bwanga MA 658 of 2013.</strong></p> <p>Further counsel for the applicants submitted that judicial review is not concerned with the decision making process only but also with the decision as well. I do not agree with this submission, Judicial Review is concerned with the decision making process and where there is fault with the process then the decision must be affected. But just because the decision can be quashed doesn’t mean that Judicial Review is concerned with the decision.</p> <p> </p> <p>Learned counsel also submitted that the affidavits and submissions of the respondents do not effectively answer the errors of law and fact committed by the commission as stated by the applicants in their submissions and in the affidavits. That the respondents are making general statements without specifically justifying the errors cited by the applicants. That the respondent cannot wash away the pleadings and submissions of the applicants by making such general statements in its submissions.</p> <p> </p> <p>Further that the respondent made the submission at page 4 that the Commission of Inquiry was well aware of the contractual relationship between the parties and among others the Consultant’s response are made without any supporting evidence by affidavit. Counsel also submitted that even in the submissions of the respondent there are factual errors in as far as Eng Okiror was not the Contract Manager of UNRA for Tororo-Mbale, Mbale-Soroti. The Engineer was Kaaya Mukasa as per page 559 of the Commission Report. That Mr. Venu did not testify to support the position that the 1st applicant did not have capacity in terms of equipment, human and financial resources. That Mr. Venu did not testify that the road was 6.3 metres as seen in the respondent’s own supplementary affidavit Annex A page 13 where it is clear Mr. Rao told the commission that the road had a carriage way of 6 metres and shoulders of 1.5 metres on either side, making the total 9 metres width, which as indicated in addendum 2 to the contract annex q to Mr. Rao’s affidavit was increased to 9.3 metres. Lastly that there is nothing at page 582 of the Commission of Inquiry’s Report that led the Commission of Inquiry to deduce that by 18th February 2011 the Contractor had not mobilized.</p> <p> </p> <p>In conclusion counsel for the applicants submitted that the respondent has failed to challenge or rebut the errors of fact and errors of law contained in the commission of inquiry report and the said findings and recommendations should be quashed as prayed by the applicants.     </p> <p> </p> <p>I am not convinced by the case put forward by the respondents. The applicants have made a very clear case of errors of law and fact which the commission of inquiry made. These errors are that:</p> <ul> <li>the delays were caused by the 1st applicant which caused UNRA financial loss, page 563 of the said report,</li> <li> the 1st applicant did not have adequate capacity in terms of numbers and competence of key personnel, page 564 of the said report; and</li> <li> the 1st applicant did not have adequate equipment and there was frequent breakdown of equipment and at times, the equipment was idle page 564 of the said report.</li> </ul> <p> </p> <p>The terms of reference of the Commission of Inquiry are at page 438 of the report (Volume 2) and Term 1 was to investigate into the Procurement and Contract Management processes by which UNRA awarded contracts for National Road works. Term 9 was to make appropriate recommendations based on findings for remedial actions or such other action against persons found to have acted improperly in the discharge of their public duties and those persons found to have acted improperly in the discharge of their public duties and those persons who benefited from the impugned actions of the public officials. Term 11 was to make any other recommendations as the commission may consider appropriate in the public interest.</p> <p> </p> <p>It is not in dispute that the Commission was required under Term of reference 9 to make appropriate recommendations based on findings for remedial actions or such other action against persons found to have acted improperly in the discharge of their public duties and those persons who benefited from the impugned actions of the public officials. But this did not mean that they had at all costs to blame the applicants. The commission did not effectively evaluate the documents and had they given the applicants that fair opportunity to explain, the errors would not have occurred. It was alleged by the Commission that the applicants were responsible for the delays and the losses in UNRA but there is no evidence whatsoever to show this. Just because contracts were reviewed and extra payments were made did not mean that there was connivance. The applicants have explained that the contracts anticipated and provided for the extra payments in case of delays. It is also logical that where the scope of works is adjusted there must be attendant costs in executing the terms of the contract. The submissions by the applicant clearly shows that UNRA staff caused delays and accordingly caused the situations that led to the losses. The applicant companies are business persons who provide their technical services for profit. The UNRA staff ought to have known that any delays in appointment of Consultants, Contract Managers and providing relevant materials would result in claims for compensation.</p> <p> </p> <p>It was an error of fact and law for the Commission to treat the applicants as public officials who had to help the government save money amidst irregularity in the management of UNRA. The applicants had UNRA as a client and are in the business of making money. Once they get instructions from their client as long as payment for the work is done, they owe the client no duty to instruct him or her on how to spend. In fact the UNRA officials only objected to specific amounts. For example under para 39 of the affidavit of Mr. Rao in support of the application, the applicant made a claim for losses incurred by the 1st applicant on account of prolongation of contract of 17,766,930,850/= but UNRA approved UGX 11,526,353,155/=. This means that whenever the UNRA staff felt the money was excessive they would reduce it to an amount that was agreeable. I therefore find that it was an error of fact and law for the commission to condemn the applicants for the monies paid to them and for the mistakes of the UNRA staff.  </p> <p> </p> <p>The respondent submitted that the actions of the commission and the recommendations were lawful because the commission was established under the Commission of Inquiry Act and it had terms of reference.</p> <p> </p> <p>I disagree with this submission. Just because a body had powers does not mean that such body’s actions are lawful. In this case even though the Commission had powers to make findings and recommendations against persons who had benefited from actions of UNRA staff it doesn’t mean that the commission had to abdicate its statutory duty which was stated by <strong>Lord Diplock </strong>in the celebrated judgment of the House of Lords, in the case of <strong>Council of Civil Service Unions and Ors Vs Minister For Civil Service [1985] 1 AC 374</strong> where he held that the decision maker must understand correctly the law that regulates his decision-making power and must give effect to it and in the Kenyan Case of <strong>Republic Vs JudicIal Commission of Inquiry into Goldenberg Affair, Ex Parte Hon. Prof. Justice of Appeal Bosire &amp; Another Ex Parte Hon. Prof. Saitot [2007] 2 EA 392</strong> where it was held that a commission appointed under a Commission of Inquiry Act  has a statutory duty to submit a full, fair and impartial report and failure to do so may render the commission’s findings, determinations and recommendations ultra vires the Act and in particular section 7 (in the case of Uganda section 6). Whether or not the commission has jurisdiction depends on any finding whether or not it acted within its purview under the section and terms of the commission. In the case of the Commission, the duty of fairness is a statutory requirement and it’s so expressed. The duty to render a full, faithful and an impartial report is statutory and there is no need to have it implied.</p> <p> </p> <p>In this case and as rightly submitted by learned counsel for the applicants, the report of the commission was not full, fair and impartial in as far as it was based on errors of fact and law as submitted by learned counsel for the applicants because the explanations by the condemned were suppressed. I therefore answer issue 1 in the affirmative.</p> <p> </p> <p><strong>Issue 2:</strong>           Whether the findings and recommendations of the commission of inquiry were irrational </p> <p> </p> <p>On this issue counsel for the applicants submitted that Lord Diplock in the House of Lords Decision of<strong> Council of Civil Service Unions &amp; Ors Vs Minister for Civil Service [1985]1 AC 374</strong> defined irrationality to mean a decision which is so outrageous in defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. This definition should not be taken at a literal value on the face of it. It is a legal definition which demeans no one. Counsel at page 27-29 of the submissions goes on to demonstrate the irrationality in the findings and recommendations of the Commission of Inquiry. Counsel then submitted that this court ought to intervene because the Commission of Inquiry failed to take into consideration matters that caused the delays but instead chose to blame the applicants. For this submission counsel relied on the case of <strong>Re - An Application by Bukoba Gymkhana Club [1963] EA 478 at page 489</strong> per Reide J where it was held that where a body has taken into account matters which ought not to take into account, or conversely, has refused to take into account or neglected to take into account matters which it ought to take into account and has come to a conclusion so unreasonable that no reasonable authority could ever have come to it, in such a case,  the court can interfere.</p> <p> </p> <p>That had the Commission of Inquiry taken into account the causes of the delays cited by the applicant in this case then they would not have made the findings and recommendations. But they didn’t. That therefore relying on <strong>Kenyan Case of Republic Vs Judicial Commission of Inquiry</strong> (supra) the findings and recommendations of the Commission of Inquiry are so outrageous in their defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could arrive at it. Therefore the findings and recommendations should be quashed.</p> <p> </p> <p>In reply the respondent submits that the commission of inquiry relied on documents and testimonies to arrive at the finding that the applicants delayed the commencement of works on roads. That at page 596 line 1 of the report it states that it should be noted that in April 2011 the consultant provided to the contractor drawings which were sufficient for him to commence works but the contractor declined to start. That as far as the width of the road is concerned the commission of inquiry as per page 564-568 of the report relied on the testimony from several witnesses and tender documents which showed the width of the road was 9 metres to 9.7 metres depending on the section of the road as opposed to 6 metres which the contractor/applicants were insisting on. That at page 568 line 4 it can be seen that Mr. Venu a shareholder and Director of the applicants testified that according to the bid, they were supposed to work on 6.3 metres road width and that the Consultant was asking him to do more and when he was presented with a drawing from the bid document which required them to do 6 metres carriageway and 1.5 metres shoulders each side totaling to 9 metres he testified that the drawing was removed from the contract. Further evidence was heard from Eng Godfrey Kaaya Mukasa and Eng Luyimbazi all of whom testified that from the beginning the contractor was supposed to construct a 9metre wide road. That basing on the above evidence it was logical that the commission finds and makes the recommendations it did.</p> <p> </p> <p>That the findings of the commission of inquiry that the applicants were responsible for the delay and consequential prolongation costs on Ishaka –Kagamba road was arrived at having reviewed a number of documents including the contracts IPC management files and Auditor General’s Report as per page 678 of the report.  At page 692 of the report it can be seen that the consultant instructed the applicants to commence work and commencement date was to be 6th February 2012. At page 693 of the report it can be seen that according to the site meeting minutes of 13th March 2012 the contractor was still mobilizing and had neither submitted his representative nor the programe of works clause as per 4.3 and 8.3 of the General Conditions of Contract and according to the site meeting of 3rd May 2012 the applicants were yet to commence works. That from the above it was logical for the commission to make the said finding. That the allegations by the applicant are unfounded and so this court should find that the commission did not act irrationally.</p> <p> </p> <p>Further the respondent submitted that the commission took into consideration relevant matters and addressed their mind to the causes of the delay that made it arrive at the said findings and contend that the commission’s findings and recommendations are not illogical and the same should not be quashed by the court as prayed for by the applicants.</p> <p> </p> <p>In rejoinder the applicants submitted that the applicant in their submissions pointed out eight grounds of irrationality at pages 27-30 but the respondent has only responded to one ground on delays and even then no grounds of evidence were laid in their affidavit in reply and supplementary affidavit to support its submissions. That the delays were effectively explained in paras 30-104 of the affidavit in support of the application and these statements were never controverted at all by the affidavits of the respondent. That on the issue of delays caused by the applicants on the Ishaka- Kagamba road there was no evidence to prove the allegation. That in view of the unchallenged evidence of Mr. Rao in para 81-89 of the affidavit in support of the application the submissions of the respondent on this issue should be dismissed.</p> <p> </p> <p>Learned counsel maintained that the grounds of irrationality pleaded, substantiated and submitted on by the applicants should be upheld and the said findings and recommendations be quashed forthwith.</p> <p> </p> <p>I entirely agree with the submissions of learned counsel for the applicants. I have perused the Commission’s Report and I have not found any evidence of bribery, connivance or collusion. All that was before the Commission was mere suspicion and no hard evidence to show that the applicants influenced the decision making processes in the UNRA. What is clear from the report is the fact that UNRA was disorganized administratively and procedures/rules were not followed in the day to day running of their activities. The applicants had to deal with such a client who didn’t respect PPDA laws and many times did not follow terms of the contract. The commission made several recommendations in that regard and was proposing that the whole institution be reorganized. It is therefore not just that the applicants should be punished for the actions of errant public servants.</p> <p> </p> <p>The Commission’s recommendations as against the applicants were therefore speculative, in error and therefore irrational. Had the commission allowed the applicants’ representative to effectively explain in fairness all the alleged roles they played in the alleged losses some of which have been explained in the affidavit of Mr. Rao, then may be, the commission would have had access to the information disclosed by the applicants in this application. I accordingly answer this issue in the affirmative.</p> <p> </p> <p><strong>Issue 3:</strong>           Whether the findings and recommendations of the commission of inquiry were procedurally improper.</p> <p> </p> <p>On this point learned counsel for the applicants cited the principles of natural justice and submitted that applying those principles to the facts of this application the applicants are very experienced successful road construction and other civil works companies. However under paragraphs 37,40,42,51,56,57,39,62, 26(n),63,100,71, 74,75,89,90,91,92,95,96 and 98 of Mr.Rao’s affidavit, the Commission of Inquiry condemned the 1st applicant for lack of personnel and equipment to execute the contract works, and for causing financial loss to UNRA among others<strong>. </strong></p> <p>That the commission of inquiry condemned the applicants without giving them a hearing. That as stated in paras 59, 60, and 61 of Mr. Rao’s affidavit, Mr. Rao was summoned to appear before the commission on 12th October 2015 towards the end of Commission’s hearings. He was asked to make a statement on Kagamba–Ishaka Road by the Directorate of Criminal Intelligence and Investigations. Consequently Mr. Rao appeared before the Commission on 13th October 2015 to testify on the Ishaka-Kagamba Road Project. That as Mr. Rao stated, he was surprised as he was unprepared to instead answer the Commission of Inquiry’s questions on Tororo-Mbale, Mbale- Soroti and Jinja- Kamuli roads. That he was also gagged by the Commission as per para 61 and was not allowed to explain. To support this submission learned Counsel cited the case of <strong>Kampala University Vs NCHE</strong> where this court held that a person must be given prior notice of allegations against him and fair opportunity to be heard <em>audi alteram partem</em> a fundamental principle of natural justice<strong>. </strong>That one cannot act fairly without giving an opportunity to be heard.</p> <p> </p> <p>Further learned counsel submitted that had the Commission of Inquiry given the applicants’ representative time to explain, all the errors of fact in the report would not have arisen. That this was a flagrant violation of the principles of natural justice and the Constitution articles 20(1) and (3), 28(1), 42, and 44. Relying on the case of <strong>Republic Vs Judicial Commission of Inquiry</strong> (supra) learned counsel submitted that not only were the applicants denied rights to natural justice by being condemned unheard but the commission by suggesting, or implying commission of criminal offences of fraud, forgery, causing financial loss, lodging fictitious claims, the applicants were denied the right to equality of arms and therefore disadvantaged in any future trial. I agree with this reasoning.</p> <p> </p> <p>Learned counsel also submitted that the Commission of Inquiry was biased in as far as they used repeatedly such words as illegalities, criminal, cheating among others which show that the Commission had a mindset aimed at a particular result to the disadvantage of the applicants. That therefore the commission of inquiry’s denial of the applicants a fair hearing was procedurally improper. Further that paras 36, 40, 42, 51, 57, 62, 26(n) 63, 71, 75, 89, 90, 91, 92, 95, 97, 98 and 100 of Mr. Rao’s affidavit demonstrate the extent of bias of the Commission. Further that the Commission violated Article 42 of the Constitution and failed to observe the impartiality rule in section 6 of the Commission of Inquiry Act. Counsel also showed that whereas the Commission singled out the applicants’ projects, there were other contractors whose contract amounts were increased by 96.69% such as the one for Chingqing International Construction Corporation CICO on Fort Portal Bundibugyo Lamia road. SBI International Holdings on Kabale –Kisoro Bunagana Kyanika road by 82.23 % and CCCC of China was paid an increase of 150,000,000 USD on the Kampala –Entebbe Express Way. Others are at pages 265 -267 of the report.</p> <p> </p> <p>That therefore to condemn the applicants was a classic case of bias. Further that one of the members of the Commission Engineer Patrick Rusongoza authored an audit report on the applicants’ accounts with UNRA while he worked at the Auditor General’s Office shortly before he was appointed to the Commission so there is no way he could be an impartial commissioner.</p> <p> </p> <p>Learned counsel then prayed that certiorari and prohibition should be issued to stop the respondent from acting upon or enforcing the findings of the said report as against the applicants<strong>.</strong></p> <p> </p> <p>In reply, the respondent submitted that there was a hearing because the applicant’s representative a one Mr. Venu appeared before the Commission. He was summoned and he appeared. That the applicants in paras 59, 60, and 61 of the affidavit in support of the application admit this fact as per section 16 of the Evidence Act. That he even made submissions to the commission of inquiry in writing. Further that in para 8 of the respondent’s supplementary affidavit it is clearly stated that the summons served on the representative of the applicants at the hearing did not restrict or limit queries to any particular subject. Lastly the respondent submitted that the applicants’ submission at page 41 that they were taken by surprise as they were unprepared to answer the Commission of Inquiry questions on Tororo-Mbale, Soroti and Jinja- Kamuli roads are unfounded, and irrelevant as the applicants cannot determine for the commission which questions were to be asked or which projects were necessary for investigation. That therefore the Commission observed the basic rules of natural justice and acted with procedural fairness towards the applicants.</p> <p> </p> <p>Further on bias the respondent submitted that the findings and recommendations of the Commission were not made only by one commissioner but by all the commissioners as per para 12 of the respondent’s supplementary affidavit. That there is also no positive evidence adduced by the applicants to show that indeed the alleged commissioner had a closed mind. The fact that the alleged commissioner was an Auditor in UNRA one time and made observations in his audit report is not enough for this court to arrive at a finding that he was biased. Further the respondent submitted that the applicants did not at any one point apply for recusal of the said commissioner on the basis that he was biased. That therefore this court should find that there was no bias exhibited against the applicants as alleged and court should not grant the prayers being sought.</p> <p> </p> <p>In rejoinder counsel for the applicants submitted that the appearance of Mr. Rao before the Commission of Inquiry did not amount to a fair hearing at all for the reasons that he was invited to answer questions on the Ishaka-Kabamba Road project but instead asked questions on other road projects of Tororo-Mbale, Mbale-soroti and Jinja-Kamuli and the applicants advocate Musika was denied audience as well. That the respondents submitted that the summons never restricted questions to a specific project but did not provide proof of this. That according to the attachment to the respondent’s supplementary affidavit of 15th October 2016, the commission’s proceedings are a clear demonstration of denial of a fair hearing because Mr. Venu was not allowed to explain at page 7 as he was told to be brief and follow the instructions. At Page 16 Mr. Venu asked for more time to check their records and he was not allowed and at page 26 Musika learned counsel for the applicants tried to ask for time and for permission to allow his client’s director to be asked one question at a time but the Chairperson of the Commission told him that the Commission does not allow verbose explanation. That therefore all this shows that the applicants were not given a fair hearing. That the respondent’s submission that there is no right to legal representation in all cases is an absurd and illegal statement in light of Article 28(3)(d) of the constitution. That Annexture A to Daniel Rutiba’s affidavit demonstrates further bias in as far as commissioner 3 said that it had come to their attention that Dott services probably has a godfather in Uganda that is pushing things and that he understands that whenever things get stuck a phone call comes from someone influential. Commissioner 3 also said that it came to their knowledge that the applicants don’t have the capacity to even carry out those jobs. Further that the respondent’s affidavit in Para 10 denies that the commission did not recommend sanctions against one contractor but does not state any other contractor who was recommended for punishment. So this claim is without evidence.</p> <p> </p> <p>That to demonstrate how Mr. Rusongoza’s previous audit prejudiced the applicants, counsel submitted that in Annexture ‘A’ to Daniel Rutiba’s affidavit page 63 shows where the chairperson of the Commission of Inquiry stated constantly that the Auditor General of Uganda audited the works of the applicants and says that the applicants are overstretched contractors and delay decision making and cannot make decisions, do not obey and they disrespect consultants, they are paid for unexecuted works, do not adhere to contract conditions and always insist on doing works their own way. Further that the applicants insist so much on getting paid for materials they have assembled. That this shows bias.</p> <p> </p> <p>Further counsel submitted that the applicants were not under obligation to ask for the recusal of Mr. Rusongoza from the Commission of Inquiry. The Constitution Articles 28, 42, and 44 and section 6 of the Commission of Inquiry Act place such duty upon the Commission of Inquiry including Mr. Rusongoza himself.</p> <p> </p> <p>At pages 32-35 of Volume 2 Annexture ‘P’ to the affidavit in support of the application it is clear that the Commission did not implicate only the applicants for collusion to defraud government. They also condemned other companies.  I therefore do not agree with the submissions of counsel for the applicants that the Commission was generally biased. I agree with the submissions of counsel for the respondents that the Commission was entitled in every way to rely on the Auditor General’s reports. I also do not agree that just because a person who had earlier on audited the applicants’ contracts with UNRA was made a member of the Commission it amounted to bias. The applicants have not demonstrated how the presence of that commissioner caused a positive act that exhibited bias<strong>. </strong></p> <p> </p> <p>However the fact that the applicants’ right to legal representation was abused and the fact that the Commission did not allow the applicants’ legal representative or even their Director to explain amounted to denial of the Fundamental Constitutional Right to a fair hearing. The Commission ought to have allowed the applicants’ Mr. Venu to explain why the allegations against them were false. The Commission ought to have allowed them some reasonable time to make their case.</p> <p> </p> <p>I therefore for those reasons find that the recommendations of the Commission and findings as against the applicants were as a result of a procedurally improper hearing and in flagrant violation of the applicants’ right to a fair hearing<strong>.  </strong></p> <p> </p> <p><strong>Issue 4:           </strong>Whether the Commission of Inquiry followed the principle of proportionality and legitimate expectations.</p> <p> </p> <p>I do not understand why counsel for the applicants raised this issue. I find that this issue is covered under the ground of procedural impropriety. I therefore find that it is not necessary to consider this issue<strong>.</strong></p> <p> </p> <p><strong>Issue 5:           </strong>Whether the judicial review orders of certiorari and prohibition should issue</p> <p> </p> <p>Having found merit in all the grounds raised and having resolved all the issues in this case in the affirmative, this application is allowed with costs. The court grants all the prayers prayed for by the applicants in the application.</p> <p>I so order.</p> <p> </p> <p><strong>Stephen Musota</strong></p> <p><strong>J U D G E</strong></p> <p><strong>21.12.2016</strong></p> <p> </p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-1b794df4524f4def28fbe0128c049316"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/hc-civil-division/2016/130/hc-civil-division-2016-130.doc" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Tue, 17 Jan 2017 07:54:26 +0000 Eunice Logose 26877 at https://old.ulii.org Mugisha v Attorney General & 2 Ors (MISC. CAUSE NO. 37 OF 2015) [2016] UGHCCD 127 (24 December 2016); https://old.ulii.org/ug/judgment/hc-civil-division-uganda/2016/127 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/hr" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">HR</a></li><li class="field-item odd"><a href="/tags/equality-law-and-equal-protection-law" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Equality before the law and equal protection of the law</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p><strong>IN THE HIGH COURT OF UGANDA AT KAMPALA</strong></p> <p><strong>MISC. CAUSE NO. 37 OF 2015</strong></p> <p><strong>MUGISHA FRED………………………..APPLICANT</strong></p> <p><strong>VS</strong></p> <ol> <li><strong>ATTORNEY GENERAL</strong></li> <li><strong>NAKASONGOLA DISTRICT LOCAL GOVERNMENT</strong></li> <li><strong>MAKERERE UNIVERSITY</strong></li> </ol> <p><strong>BEFORE HON. LADY JUSTICE H. WOLAYO</strong></p> <p><strong>RULING</strong></p> <p>The applicant through his advocates  Kiiza Tumwesigye Ssemmambo Advocates, sought orders under Judicial Review Rules for the following orders:</p> <ol> <li>Certiorari , quashing the decision of the respondents that the applicant was not eligible to be admitted on the Uganda Government Sponsorship Scheme District Quota for Nakasongola district;</li> <li>Mandamus compelling the respondents to admit the applicant on the scheme for the academic year 2014/2015;</li> <li> Re-imbursements of tuition and functional fees paid by the applicant to the third respondent.</li> </ol> <p>The respondents filed affidavits in reply in opposition to the application.</p> <p>I have carefully examined the affidavits in support and affidavits in reply.</p> <p>I have also carefully considered submissions of all counsel.  Ms. Kibedi &amp; Co. Advocates appeared for the 3rd respondent; while the 1st and 2nd respondents were represented by Attorney General’s chambers.</p> <p> </p> <p> </p> <p><strong>The applicant’s case</strong></p> <p>It was the applicant’s case that he was born in Katikakaru, Kakooge sub county, Nakansongola district ; attended primary school at Ekitangaala primary school; Uganda certificate of Education at Ekitkangaala secondary school, and Cornerstone Leadership Academy and that all three schools are located in  Kakooge sub county, Nakasongola district.</p> <p>On application to the public universities joint admissions board (PUNJAB) for admission to Makerere University under the government sponsorship scheme for the Nakasongola district quota, he went to Nakasongola to collect his verification and he was informed he was not on the list yet he qualified having been born in Katikakuru , Kakooge sub county, Nakasongola district and having studied from within the same sub county and district.</p> <p>In his affidavit in rejoinder, the applicant affirmed that Kitendeli village where his father is born is on the boundary between Luwero and Nakasongola and at the time of filling PUNJAB forms, he honestly believed it was in Nakasongola district.</p> <p>The applicant was aggrieved and prayed for the prerogative orders of certiorari, and mandamus.</p> <p><strong>The respondents’ case</strong></p> <p>It was the 1st and 2nd respondents’ case that the applicant did not qualify for Nakasongola district quota because he was born to his father Rwabogo Andrew whose birthplace is Kitendeli  , Kakooge sub county  , Luwero district.</p> <p>It was further their case that in the PUJAB form ,  although, the applicant  gave  Kitendeli, Kakooge sub county, Nakasongola as his father’s birthplace, the LC III chairperson of Kakooge sub county Nakasongola district confirmed to Kasozi Suleiman CAO of Nakasongola that Kitendeli parish is found in Kamira sub county, Luwero district.</p> <p>The 2nd respondent’s  case basically is that it was simply enforcing a government policy in taking into consideration district of origin as opposed to place of birth of the applicant .</p> <p>It was the 3rd respondent’s case that its role was to implement the decisions of the 1st and 2nd respondents and therefore was wrongly added as a party.</p> <p>What emerges from the foregoing analysis is that while the applicant was born in Katikakaru village, Kakooge sub county, and studied in Kitangaala primary and secondary schools as well as Cornerstone secondary school all in Luwero district, his parents place of origin is indicated in the PUNJAB form as   Kitendeli , Kakooge sub county, Nakasongola district , a fact conceded by the applicant except he maintains that it is on the border between Luwero and Nakasongola.</p> <p>No issues were framed for resolution but from my understanding of the pleadings and the evidence adduced by both parties , the main issues are:</p> <ol> <li>Whether the case is amenable to judicial review</li> <li>Whether the process of  determining access to government sponsorship is tainted with illegality, impropriety or  irrationality and specifically,  whether the 2nd respondent wrongly took into consideration the parents’ place of birth as opposed to that of the applicant.</li> <li>Remedies</li> </ol> <p><strong>Whether the case is amenable to judicial review</strong></p> <p>Article 42 of the Constitution confers on all persons the right to be treated fairly and justly when appearing before an administrative official or body .  An aggrieved person has a right to apply to court for redress.</p> <p>This case is unique in the sense that a ‘hearing’ in the traditional sense was not conducted but rather the second respondent verified eligibility of the applicant for the district quota government sponsorship enrolment in accordance with   criteria  set by the 1st respondent. Therefore,  the applicant was not entitled to be heard physically but the 2nd respondent had a duty to be fair  and act within the law in the verification process.  To this extent, the case is amenable  to judicial  review to ascertain that due process was observed.</p> <p> The 3rd respondent’s counsel submitted that it was wrongly sued because its role in the verification process is limited to implementing the decision of the 1st and 2nd respondent. Indeed it was the Ministry of Education that generated a provisional list that the Permanent secretary sent to the 2nd respondent for verification. It was therefore unnecessary to add the 3rd respondent as a party to the application.  </p> <p> </p> <p><strong>Whether the verification process followed by the 2nd respondent was tainted with illegality, impropriety or  irrationality , specifically, and specifically,  whether the 2nd respondent wrongly took into consideration the parents’ place of birth as opposed to that of the applicant.</strong></p> <p>It was the contention of counsel for the applicant that his father’s birthplace is   an ultra vires consideration in as far as determining the district of origin is concerned.</p> <p>An  evaluation of the affidavits  on record  as well as supporting documents reveals that Home district and district of origin are used interchangeably ( affidavit of Sentongo Charles refers).</p> <p>In the minutes marked A attached to Kasozi’s affidavit, the objective of the meeting was to  verify  whether the list of students selected by the 1st  respondent provisionally, sat their exams from Naksongola district and whether it is their district of origin.</p> <p>The letter from the Permanent Secretary Ministry  of Education marked E attached to the affidavit in reply of Kasozi also refers to district of origin .</p> <p>The District Executive Committee discussed each student on the list and found that the applicant did not qualify because   Kitenteli village, where his father Rwabogo Andrew comes from could not be traced in Nakasongola district  and is found in Kamira sub county , Luwero district.    </p> <p>It was the contention of counsel for the applicant that the 2nd respondent went beyond its powers when it ignored the fact that the applicant is born in Katikakuru village , Kakooge sub county in Nakasongola district but chose to rely on the parents’ birthplace of Kitenteli which is outside Nakasongola district. Birth certificate of applicant marked Annex. A to the affidavit in support of the applicant refers.  In other words, counsel for the applicant contends that the 2nd respondent considered an ultra vires consideration or illegal consideration when determining eligibility for the district quota.</p> <p>The authorities cited by all counsel in their submissions are all relevant to the determination of this application but I will pick on only a few of them.</p> <p> In <strong>High Court  Land Division MA 18 of  2012 Mugabi Edward v Kampala District Land  Board and another</strong>, the learned  judge , citing a textbook on Constitutional and Administrative  Law, explained what amounts to illegality as a ground for judicial review. It means</p> <ul> <li>an authority must not exceed its jurisdiction by purporting to exercise powers which it does not have;</li> <li>it must direct itself properly on the law;</li> <li>it must not use its powers for an improper purpose;</li> <li> it must take into account all relevant considerations and disregard irrelevant considerations;</li> <li>and must not act in bad faith.</li> </ul> <p>In the instant case, the 2nd respondent was authorized by the Ministry of Education to carry out the verification of students eligible  for government sponsorship and the criteria given as</p> <p>‘<strong>district of origin  and sitting exams in a school within the district.</strong>’</p> <p>The 2nd respondent    performed its verification function and found that the applicant was not eligible.</p> <p>The 2nd respondent that verified the applicant’s district  of origin did so in a transparent manner in a meeting held on 30th July 2014 in the district Chairperson’s office and minutes recorded. The committee was concerned with district of origin as opposed to birthplace the applicant wanted them to.</p> <p>In the applicant’s understanding, place of birth means where he was actually birthed.  This is a flawed reasoning because it would lead to a hap harzard standard for verifying eligibility for the district quota system and defeat the purpose for which it was designed.</p> <p>Counsel for the applicant’s contention that the birth place of the applicant’s father is irrelevant is not tenable because in our communities, ancestry is traced to place of origin of one’s parents.   </p> <p>Furthermore, the  Public Service Standing orders make reference to <strong>‘place of</strong> <strong>origin</strong>’  in several of the orders. For instance,  at pages 305-306 , government provides transport to ‘place of origin’  for an officer who suffers ill health or on termination of employment .</p> <p>The applicant made reference to some guidelines to the Ministry of Education on how to verify students under the district quota system , but these guidelines have never been formally issued.</p> <p> The 2nd respondent was duty bound to rely on its understanding of district of origin  consistent with ordinary usage in the public service ;  instructions from the Ministry of Education and the policy behind  the district quota system  ,to arrive at the conclusion that the applicant was not qualified.  I therefore find no illegality in the interpretation placed on ‘<strong>district of origin’</strong> by the 2nd respondent as this was consistent with ordinary usage, and the policy behind  the district quota system.  The 2nd respondent acted within the ambits of its powers to verify students and lawfully  took  into account the birthplace of the parents as the place of origin.</p> <p>Therefore I find that the  verification  process was free from any impropriety or illegality.</p> <p><strong>Whether the applicant is entitled to any remedies</strong></p> <p>The above finding disposes of the application but in case I am found to have erred, I will look into quantum of damages.</p> <p><strong>Damages </strong></p> <p>The applicant prayed for 13,170,000/ being the total cost of tuition, accommodation and meals for the duration of the course. The special damages were proved by receipts and bank slips.</p> <p>As it is not disputed that the applicant is on private sponsorship, I would have accepted  the claim for tuition and accommodation and meals expenses to the tune of 13,170,000/.</p> <p>As for general damages, these would not be awarded because the applicant would have recovered expenses.</p> <p>This application is accordingly dismissed.</p> <p>As the applicant is a student who is still dependent on his parents, I will award no costs to the 1st and 2nd respondents. However, for the reason that the 3rd respondent was wrongly sued, the applicant will pay the 3rd respondent’s costs spent on disbursements only.</p> <p><strong>DATED AT KAMPALA THIS  24TH DAY OF NOVEMBER 2016.</strong></p> <p><strong>HON. LADY JUSTICE H. WOLAYO</strong></p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-dee045fa9d28ac4ea0000e06a393d7ec"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/hc-civil-division/2016/127/hc-civil-division-2016-127.doc" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Fri, 13 Jan 2017 09:48:29 +0000 Eunice Logose 26868 at https://old.ulii.org Eberuku v Moyo District Local Government (MISCELLANEOUS APPLICATION No. 0005 OF 2016) [2016] UGHCCD 120 (8 December 2016); https://old.ulii.org/ug/judgment/hc-civil-division-uganda/2016/120 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/hr" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">HR</a></li><li class="field-item odd"><a href="/tags/equality-law-and-equal-protection-law" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Equality before the law and equal protection of the law</a></li><li class="field-item even"><a href="/tags/have-his-cause-heard-fair-trial" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Have his cause heard (fair trial)</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p><strong>THE REPUBLIC OF UGANDA</strong></p> <p><strong>IN THE HIGH COURT OF UGANDA SITTING AT ARUA</strong></p> <p><strong>MISCELLANEOUS APPLICATION No. 0005 OF 2016</strong></p> <p> </p> <p><strong>EBERUKU PIUS   ………………………………………………………     APPLICANT</strong></p> <p> </p> <p><strong>VERSUS</strong></p> <p><strong>MOYO DISTRICT LOCAL GOVERNMENT    ………………………      RESPONDENT</strong></p> <p> </p> <p><strong>Before: Hon Justice Stephen Mubiru.</strong></p> <p><strong>RULING</strong></p> <p>This is an application made under the provisions of section 36 of <em>The Judicature Act</em> as amended and Rules 6 (1) and (2) of <em>The Judicature (Judicial Review) Rules</em>, S.I. No. 11 of 2001, seeking judicial review of administrative decisions taken by the respondent, by way of grant of an order of Certiorari quashing a decision taken by the respondent regarding the applicant’s employment with the respondent and orders of prohibition and an injunction to prevent the respondent from taking other specified decisions regarding the same employment. The application is supported by an affidavit sworn by the applicant. The respondent is opposed to the application and filed an affidavit in reply sworn by a one Mr. Oryono Grandfield Omonda, the Chief Administrative Officer of the Respondent.</p> <p>The background is that the applicant joined service of the respondent on 1st February 2004 as a Sub-County Chief. In the year 2008, he was promoted to the position of Senior Assistant Secretary. At the time of these events, he had been posted to Aliba Sub-County, as a Sub-County Chief. On or about 20th January 2015, he was notified in writing by the respondent’s Chief Administrative Officer that there was a vacant post of Principal Assistant Secretary to be filled. He was required to fill the relevant Public Service Form to be submitted to the District Service Commission in order to be considered for promotion to that position. The applicant duly filled in and submitted the form to the District Service Commission, which after considering the application, promoted him to the position of Principal Assistant Secretary, to report to the District Headquarters effective 1st July 2015.</p> <p>Later, the District Service Commission received a complaint from another employee of the respondent at the level of Senior Assistant Secretary, querying the procedure through which the applicant had been promoted to the position. Upon that complaint, the District Service Commission recommended a revocation of the applicant’s appointment upon which his promotion was rescinded as from 1st April 2015, he was reverted to his previous position of Senior Assistant Secretary and was posted to Laropi Sub-county. The respondent re-advertised the position of Principal Assistant Secretary. The applicant contends he is qualified for the position of Principal Assistant Secretary, was never given an opportunity to be heard by the District Service Commission before his promotion to that position was revoked. He therefore seeks an order of certiorari to quash the decision of District Service Commission revoking his promotion to the post of Principal Assistant Secretary, the decision to revert him to the position of Senior Assistant Secretary and the decision to post him to Laropi Sub-county. He further seeks orders of Prohibition and an injunction restraining the respondent from posting him to Laropi Sub-county. He finally seeks an award of general damages and the costs of the application.</p> <p>The respondents oppose the application and argue that the notification of the vacancy was not sent exclusively to the applicant. When the Public Service Commission reviewed the procedure through which the applicant had been promoted, it observed that the District Service Commission had not made any shortlist of the various applicants to the position. The applicant was later given an opportunity to appear before the District Service Commission, which he initially declined but subsequently honoured whereupon the observations of the Public Service Commission were read to him. The position was re-advertised and the applicant was free to re-apply for consideration, following the correct procedure this time round.</p> <p>In his written submissions, counsel for the applicant argued that the respondent followed the proper procedure when promoting the applicant to the position of Principal Assistant Secretary. He cited Part (A-g), Order 2 of <em>The Uganda Public Service Standing Orders</em>, (2010 edition). The procedure followed was intended to save costs and to motivate current staff who had the qualifications for the position, being the holder of a Bachelor of Arts Degree in Political Science, a Certificate in Administrative Law and a Post Graduate in Public Administration and Management. He had served the respondent for more than seven years at the time of the promotion. In revoking the promotion, the respondent violated the applicant’s right to just and fair treatment in administrative decisions. In handling the complaint challenging the process of his appointment on promotion, neither the Public Service Commission nor the District Service Commission gave him a hearing or allowed him an opportunity to review the nature of the complaint. For that reason, the remedies sought should be granted to remedy the injustice caused to the applicant due to the embarrassment, suffering and mental anguish he has suffered.</p> <p>Counsel for the respondent disagrees. In his written submissions, he argues that although there indeed was a vacancy and eligible officers to fill it as required by Part (A-g), Order 2 (a) and (b) of <em>The Uganda Public Service Standing Orders</em>, (2010 edition), but the proper procedure was not followed as required by Part (A-c), Order 11 of the Standing Orders and Regulation 26 (2) of <em>The Public Service Commission Regulations</em>, 1999. It was not clear as what criterion was adopted in declaring the applicant the best candidate. According to Article 166 (1) (d) of <em>The Constitution of the Republic of Uganda, 1995</em> the Public Service Commission has supervisory powers of District Service Commissions. The Public Service Commission stipulated that the District Service Commission did not subject the applicants to any form of assessment in order to arrive at the best qualified candidate for the position. The process lacked transparency, fairness and merit. It was therefore proper that the process be rescinded and a transparent and fair process be conducted as recommended by the Public Service Commission. He prayed the court finds that the applicant is not entitled to any of the remedies sought and be pleased to dismiss the application with costs to the respondent.</p> <p>According to rule 3 of <em>The Judicature (Judicial Review) Rules, 2009, S.I. 11 of 2009</em>, applications may be made under section 38 (2) of <em>The Judicature Act</em>, for orders of mandamus, prohibition, certiorari or an injunction (by way of judicial review). Judicial review of administrative action is a procedure by which a person who has been affected by a particular administrative decision, action or failure to act of a public authority, may make an application to the High Court, which may provide a remedy if it decides that the authority has acted unlawfully. While it has been said that the grounds of judicial review “defy precise definition,” most, if not all, are concerned either with the processes by which a decision was made or the scope of the power of the decision-maker.  A public authority will be found to have acted unlawfully if it has made a decision or done something: without the legal power to do so (unlawful on the grounds of illegality); or so unreasonable that no reasonable decision-maker could have come to the same decision or done the same thing (unlawful on the grounds of reasonableness); or without observing the rules of natural justice (unlawful on the grounds of procedural impropriety or fairness). Failure to observe natural justice includes: denial of the right to be heard, the rule against actual and apprehended bias; and the probative evidence rule (a decision may be held to be invalid on this ground on the basis that there is no evidence to support the decision or that no reasonable person could have reached the decision on the available facts i.e. there is insufficient evidence to justify the decision taken).</p> <p>Decisions made without the legal power (<em>ultra vires</em> which may be narrow or extended.  The first form is that a public authority may not act beyond its statutory power: the second covers abuse of power and defects in its exercise) include; decisions which are not authorised, decisions taken with no substantive power ore where there has been a failure to comply with procedure; decisions taken in abuse of power including, bad faith (where the power has been exercised for an ulterior purpose, that is, for a purpose other than a purpose for which the power was conferred), where power not exercised for purpose given (the purpose of the discretion may be determined from the terms and subject matter of the legislation or the scope of the instrument conferring it), where the decision is tainted with unreasonableness including duty to inquire (no reasonable person could ever have arrived at it) and taking into account irrelevant considerations in the exercise of a discretion or failing to take account of relevant considerations. It may also be as a result of failure to exercise discretion, including acting under dictation (where an official exercises a discretionary power on direction or at the behest of some other person or body.  An official may have regard to government policy but must apply their mind to the question and the decision must be their decision).</p> <p>It may as well arise where there has been an excess of jurisdiction, including: error of law (in arriving at their decision, a decision-maker must not misinterpret the legislation under which they are acting or in any way indicate a misunderstanding of the law.  Like <em>ultra vires</em> therefore, this ground involves persons or bodies acting beyond their lawful authority.  Historically though, the term was applied to non-judicial bodies exercising legislative or administrative powers, whereas jurisdictional error was used in relation to inferior courts or tribunals exercising  judicial or quasi-judicial powers) or  jurisdictional error (under this ground, a decision-maker must have legal authority to deal with the matter upon which they propose to make a decision) and fraud (In most cases, the sort of fraud which occurs is the falsification or suppression of evidence).</p> <p>Judicial review on any of those grounds is concerned not with the merits of the decision, but rather with the question whether the public body has acted lawfully. Judicial review is not the re-hearing of the merits of a particular case, but rather the High Court reviews a decision to make sure that the decision-maker used the correct legal reasoning or followed the correct legal procedures. If the Court finds that a decision has been made unlawfully, the powers of the court will generally be confined to setting the decision aside and remitting the matter to the decision-maker for reconsideration according to law.  </p> <p>The court ought to proceed with due regard to the limits within which it may review the exercise of administrative discretion when interfering with an administrative function of an establishment or an employer as stated in <em>Associated Provincial Picture Houses Limited v Wednesbury Corporation [1947] 2 ALL ER 680: [1948] 1 KB 223</em>, thus; - (i) illegality: which means the decision-maker must understand correctly the law that regulates his decision making power and must give effect to it. (ii) Irrationality: which means particularly extreme behaviour, such as acting in bad faith, or a decision which is "perverse" or "absurd" that implies the decision-maker has taken leave of his senses. Taking a decision which is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it and (iii) Procedural impropriety: which encompasses four basic concepts; (1) the need to comply with the adopted (and usually statutory) rules for the decision making process; (2)The common law requirement of fair hearing; (3) the common law requirement that the decision is made without an appearance of bias; (4) the requirement to comply with any   procedural legitimate expectations created by the decision maker.</p> <p>It is trite that administrative systems which employ discretion vest the primary decision-making responsibility with the agencies, not the courts. As a result, the judicial attitude when reviewing an exercise of discretion must be one of restraint, often extreme restraint, only intervening when the decision is shown to have been unfair and irrational. The principle in matters of judicial review of administrative action is that to invalidate or nullify any act or order, would only be justified if there is a charge of bad faith or abuse or misuse by the authority of its power and in matters of administrative decision making in exercise of discretion, the challenge ought to be over the decision making process and not the decision itself. The jurisdiction to decide the substantive issues is that of the authority and the Court does not sit as a Court of Appeal, since it has no expertise to correct the administrative decision, but merely reviews the manner in which the decision is made. It is elsewhere said that, if a review of administrative decision is permitted, the court will be substituting its own decision without the necessary expertise, which itself may not be infallible.</p> <p>It follows from this that there will be circumstances in which although a decision is not the correct or preferable decision on the facts, it will not be open to judicial review.  Conversely, there may be situations where a decision is the correct or preferable one, but may be set aside because it is subject to legal error. As noted earlier, the results or outcomes of the decision-making process are not primary concerns of judicial review. In <em>Minister for Aboriginal Affairs v Peko-Wallsend Ltd</em>: (1986) 162 CLR 24, 40-41 citing <em>Wednesbury Corporation</em> <em>[1948] 1 KB, 228</em> the court opined;</p> <p>The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind.It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion, which the legislator has vested in the administrator.Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned.</p> <p> </p> <p>Similarly in <em>Ridge v. Baldwin and Others [1963] 2 All ER 66 at 91, [1964] AC 40 at 96</em>, it was observed;</p> <p>a danger of usurpation of power on the part of the courts ... under the pretext of having regard to the principles of natural justice ... I do observe again that it is not the decision as such which is liable to review; it is only the circumstances in which the decision was reached, and particularly in such a case as the present the need for giving to the party dismissed an opportunity for putting his case.</p> <p> </p> <p>Lord Brightman came to the same conclusion when in his holding at page 154 where he said:</p> <p>Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power.</p> <p>The applicant faults the respondent for having promoted him to the post of Principal Assistant Secretary effective 1st July 2015 only suspend the promotion on 29th June 2015 and later  revoke it on 1st April 2016, thereby reverting him to the position of Senior Assistant Secretary, which he held before the promotion, without affording him a hearing. He also queries the respondent’s decision to have him transferred from Aliba Sub-County where he was a Sub-County Chief, to the District Headquarters upon his promotion to the position of Principal Assistant Secretary and then to Laropi Sub-county upon revocation of the promotion and resumption of his previous status of Senior Assistant Secretary. He claims that this was a violation of the applicant’s right to just and fair treatment in administrative decisions.</p> <p>There are some preliminary observations to be made about this application. Firstly, judicial review is ordinarily not granted where there are alternative remedies, unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted. For example in <em>R v Lord Chancellor's Department ex parte Nangle [1992] 1 All ER 897</em> the applicant had been  dismissed  from  his  clerical  position  in  the  civil  service. He appealed the decision to the Permanent Secretary, however the appeal was dismissed. The applicant thus sought judicial review of the decision to uphold the charges and dismiss the appeal. The department applied to dismiss the application on the ground that the conduct of disciplinary procedures in relation to Crown servants was not a matter of public law which was susceptible to judicial review since the applicant was employed by the Crown under a contract of employment and the appropriate remedy was an action for breach of contract. In addition, even if the applicant was not employed under a contract of employment there was an insufficient public law element in the dispute to justify judicial review. The court held that all the incidents of a contract of employment were present in the applicant's relationship with the Crown including offer, acceptance, consideration as well as an intention to create legal relations. Furthermore, despite  the statement in para 14 of the <em>Civil Service Pay and Conditions of Service Code</em> that the relationship between civil servants and the Crown was regulated by the prerogative and that civil servants could be dismissed at pleasure, it could not have been intended that the conditions relating to civil servants' appointments were to be merely voluntary. In any event, even if there was no legally enforceable contract of employment between the applicant and the Crown the mere fact that the applicant had no private law remedy did not mean that he had a public law remedy.  The internal disciplinary procedures of the applicant's department arose out of his appointment and were consensual, domestic and informal, unlike an appeal to an independent body set up under the prerogative.  As such, judicial review would not be an appropriate remedy since there was an alternative and more effective remedy available from an industrial tribunal.</p> <p>Although contemporary jurisprudence is to the effect that applications for judicial review should be heard and determined without undue regard to procedural technicalities and that availability of other remedies is no bar to the granting of a judicial review relief, it can however be an important factor in exercising the discretion whether or not to grant the relief. I note that the applicant claims an infringement of a constitutional right guaranteed by article 42 of <em>The Constitution of the Republic of Uganda, 1995</em> to fair treatment in administrative action, which could have been enforced by way of a suit under article 50 of the Constitution. Secondly, employment disputes are better tried by ordinary suit rather than by affidavit evidence. Courts are hesitant to resolve such disputes by way of judicial review, except where perhaps the redress sought is in respect of violations of fundamental rights arising from an employment relationship, such as the right to be heard during disciplinary proceedings.</p> <p>That notwithstanding, in <em>Re National Hospital Insurance Fund Act and Central Organisation of Trade Unions (Kenya), Nairobi</em> [2006] 1 EA 47, Nyamu, J (as he then was) held the view that while it is true that so far the jurisdiction of a judicial review court has been principally based on the “three I’s” namely illegality, irrationality and impropriety of procedure, categories of intervention by the Court are likely to be expanded in future on a case to case basis. Also in <em>Kuria and three others vs. Attorney General [2002] 2 KLR 69</em> that; “this therefore implies that the limits of judicial review should not be curtailed, but rather should be nurtured and extended in order to meet the changing conditions and demands affecting the decision-making process in the contemporary society. The law must develop to cover similar or new situations and the application for judicial review should not be stifled by old decisions and concepts, but must be expansive, innovative and appropriate to cover new areas where they fit.”</p> <p>The court will therefore be called upon to intervene in situations where public authorities and persons act in bad faith, abuse power, fail to take into account relevant considerations in the decision making or take into account irrelevant considerations or act contrary to legitimate expectations of applicants, even where such conduct is not strictly within the purview of the “three I’s.” It is for that reason that the court will determine this application on its merit rather than defer it to be resolved through the available alternative remedies.</p> <p>At common law, the issue of promotion is not contestable unless it is enshrined in the contract of employment detailing criteria for promotion. An employee has no legal right or entitlement to insist on promotion to the next or any higher post, except if the contract of employment explicitly spelt out the conditions regulating promotions. It is in this regard that an employee could make a claim in terms of those conditions. Therefore, if an employer refuses to apply its mind by promoting an employee, the employee has no legal right to institute an action against the employer and claim that the employer acted unfairly. For this and other reasons, it is why the State has to intervene by enacting laws to protect the rights of employees against unfair labour practices, providing meaningful legal guarantees to civil servants and  doing  away  with  arbitrariness.</p> <p>According to Order 10 (d) of Part (A – a) of <em>The Uganda Public Service Standing Orders (2010 edition)</em>, the power to appoint, confirm, discipline and remove officers from office in the public service is vested in the relevant District Service Commission in the case of Local Government staff except the Chief Administrative Officer, Deputy Chief Administrative Officer, Town Clerk and Deputy Town Clerk of City and Town Clerks of a Municipal Council. In the exercise of this power, District Service Commissions are under the supervision of the Public Service Commission which is empowered by Article 166 (1) (d) of <em>The Constitution of the Republic of Uganda</em>, 1995 to guide and coordinate district service commissions.</p> <p> </p> <p>The procedure to be followed on promotions is laid down by <em>The Uganda Public Service Standing Orders (2010 edition)</em> the relevant provisions of which state as follows;</p> <p><strong>APPOINTMENT ON PROMOTION (A - g)</strong>.</p> <p>2.         When recommending a public officer for promotion, the following shall be considered:-</p> <p>(a)        Existence of a vacancy; and</p> <p>(b)        Eligibility for promotion i.e existence of eligible serving officers with the required competencies and having served for a minimum of 3 years at the lower grade.</p> <p>4.         An officer shall not be recommended for promotion until he / she has served for a minimum of three years in his or her substantive grade.</p> <p>11.       A Responsible Officer must not arouse in the mind of any one of his or her staff hope of promotion which does not rest with the Responsible Officer to fulfill. This also applies to enhancement of salary without promotion, or to salary assessment on first appointment or promotion.</p> <p>13.       The Service Commissions may determine procedures to test suitability in terms of competencies, for the purpose of promotion to all posts in the Public Service as deemed necessary. (Emphasis added).</p> <p> </p> <p><strong>Responsible Officer; </strong>in relation to a public officer means the Permanent Secretary of a Ministry or a Department under which the officer is serving; or head of Department as defined in the Public Service Act. Or Chief Administrative Officer or Town Clerk of a Local Government.</p> <p> </p> <p>The <em>Pubic Service Standing orders</em> do not prescribe the procedures and criteria to be used in determining the suitability in terms of competencies, the person to be promoted. This is left to the respective District Service Commissions to determine. In the instant application, none of the parties furnished court with any authoritative source which guided the respondent’s District Service Commission in considering the applicant for promotion. In absence of evidence of such procedures and criteria laid down by the respondent, the court proceeds on the assumption that the respondent’s District Service Commission has not formulated or issued any.</p> <p>The intention of framers of the <em>Public Service Standing Orders</em> in leaving the determination of procedures to test suitability in terms of competencies for the purpose of promotion is clearly that these decisions are to be made on merit in accordance with definite rules, instructions etc., which should be considered and treated as part of the terms and conditions of service of a public servant. Such decisions cannot be made capriciously or subjectively. Decisions on tenure, appointment, promotion and posting / transfer are of utmost importance in the public service. Such decisions should be entrenched and cemented in publicly available rules, instructions, policies etc. providing for an appointment process which is clearly defined, to assure quality, effectiveness and morale of the public service. There is also a public interest in the process for the appointment of public officers being clearly defined in that it is through transparency that the maintenance of the standing of the public service as a service of the State and not the service of any transient interests can be achieved. Potential candidates too need to know what the process is. Such regulations are intended to provide a self-contained, comprehensive structure governing promotions within the service. Transparency is likely to eliminate decision making based on considerations other than merit. To permit District Service Commissions to waive parts of the process when they think it appropriate would have the potential to create an uncertain and unequal playing field and to undermine the independence and efficiency of public service.</p> <p>The Supreme Court of Pakistan in the <em>Corruption of Hajj Arrangements’ case (PLD 2011 SC 963)</em> clarified that even where there are no explicit rules governing the appointment process, and appointments are to be made in the exercise of discretionary powers, such discretion must be employed in a structured and reasonable manner and in the public interest. Appointing authorities cannot be allowed to exercise discretion at their whims, or in an arbitrary manner; rather they are bound to act fairly, evenly and justly and their exercise of power is judicially reviewable. Further in <em>Muhammad Yasin v. Federation of Pakistan (PLD 2012 SC 132)</em>, the same court clarified that, when called upon to do so, the Courts are “duty bound to examine the integrity of the selection process”, although they “will not engage in any exhaustive or full-fledged assessment of the merits of the appointee nor [...] seek to substitute [their] own opinion for that of the Executive.” It was noted in that case that just like the appointment of civil servants, their removal and dismissal from service has not been left to anyone’s whims and caprice. It is governed by rules and regulations, indeed, the anachronistic concept where government servants held office during the pleasure of the Crown had no place in a dispensation created and paid for by the people. Consideration of an officer for promotion is to be based not only on the relevant law and the rules (if any) but also is to be based on some tangible material relating to merit and eligibility which can be lawfully taken note of.</p> <p>All state authority is in the nature of a “trust” (see objective XXVI. (i) of <em>The Constitution of the Republic of Uganda, 1995</em> regarding “Accountability”). Its bearers should therefore be seen as fiduciaries. Matters of tenure, appointment, posting, transfer and promotion of public servants, being an exercise of state authority, cannot be dealt with in an arbitrary manner. Decisions in that respect can only be sustained when they are in accordance with the law and established procedures. According to the “Applicability” section at page xiv of <em>The Uganda Public Service Standing Orders (2010 edition)</em>, “all public officers are bound by the Standing Orders” where the Definitions Section at page xxi defines a “Public officer” as having the meaning assigned by articles175 (a), and (b) of <em>The Constitution</em>, that is; “any person holding or acting in an office in the public service... in any civil capacity of the Government the emoluments for which are payable directly from the Consolidated Fund or directly out of monies provided by Parliament ” as well as article 257 (1) (x) and (y) of <em>The Constitution</em> where it means “a person holding or acting in any public office,” and where public service means “service in a civil capacity of the Government or of a local government.” In absence of any guidelines made or issued by the respondent’s District Service Commission regarding procedures to test suitability in terms of competencies for promotions within the service, resort then must be made to the minimum framework provided for by <em>The Public Service Commission Regulations, 2009, S.I No. 1 of 2009</em> whose relevant provisions provide as follows;</p> <p><strong>26.</strong> <strong>Vacancies.</strong></p> <p>(1)          Where a vacancy occurs or it is known that a vacancy shall occur in any public office in any Ministry or department, the responsible officer shall notify the Secretary of the vacancy upon clearance by the responsible Permanent Secretary.</p> <p>(2)        If the responsible officer recommends that such vacancy should be filled by the appointment or promotion of an officer serving in the Ministry or Department in which the vacancy has occurred or shall occur, he or she shall, when reporting the vacancy to the Secretary—</p> <p>(a)        forward a list of all senior eligible officers in that Ministry or Department who are available to fill the vacancy, together with the records of their service in the public service;</p> <p>(b)        recommend one of those officers to fill the vacancy; and</p> <p>(c)        where his or her recommendation involves the supersession of an officer senior to the officer so recommended, give his or her reasons for recommending such supersession.</p> <p>(3)          If the responsible officer does not recommend that the vacancy should be filled by the appointment or promotion of an officer serving in the Ministry or department in which the vacancy occurs or shall occur, he or she shall when reporting the vacancy to the Secretary—</p> <p>(a)        report to the Secretary the names of the most senior officers serving in the particular cadre or grade from which the promotion would normally be made and state his or her reasons why he does not consider that the officers named are suitable for promotion to fill the vacancy; and</p> <p>(b)        forward to the Secretary a draft advertisement setting out the details of the vacant post and the duties and qualifications attached to it.</p> <p>From the above provisions, it is evident that an applicant for promotion is already an employee and must have been involved in various issues that would probably impact on whether he or she should be promoted or not. There are various reasons that may motivate for either a promotion of an employee or not, for example; - it could be as a result of the commitment of the employee, leading to attainment of set goals, the person’s employment history, record of performance, skills and qualifications, the objective of service delivery improvement, availability of vacancies, availability of resources and other factors. Therefore,  promotions  can  only  be  made  on  the basis  of  objective  criteria  such  as  “merit” and “seniority / fitness.”</p> <p>The task of those administering promotions is to see and ensure that there is fairness and justice in the exercise or the process. A person entrusted with discretion must direct himself or herself properly in law and established evaluative criteria.  He or she must call his or her own attention to the matters which he or she is bound to consider.  He or she must exclude from his or her consideration matters which are irrelevant to the decision he or she has to make. The court will generally leave to the District Service Commission the decision as to what evaluative criteria should be used, how they should be weighted, and how they should be applied. The court will focus its attention instead on the fairness of the procedures adopted and whether similarly situated candidates for promotion were treated equitably. Rarely will a court overturn a negative employment decision because the criteria were unclear but will most readily do so where the procedures were biased.</p> <p>For example the case of <em>Mecklenberg v. Montana State Board of Regents 13 FEP 462, 13 EPD 1 1438 (1976)</em> the plaintiffs challenged the promotion and tenure review procedures at Montana State University, calling them arbitrary because they were not standardized, and discriminatory because women were excluded from the review process. The trial court agreed, saying that the decision, procedures and criteria were so imprecise that they permitted decision makers to use “a number of vague and subjective standards... [and that] there [were] no safeguards in the procedure to avert sex discriminatory practices" (1976, p. 6495). In its order, the trial court required the university to completely overhaul its governance and peer review process to make it more democratic and more objective.</p> <p>Generally, if a District Service Commission uses fair procedures and can articulate a plausible, non-discriminatory reason for reaching the decision it did, the court will not interfere. Whereas matters relating to promotions cannot be put in a strait-jacket and flexibility is inevitable, if however, rules and instructions are deviated from in what appears to be an abuse of discretion and as a result merit is discouraged on account of favouritism or considerations other than merit, it should be evident the public service will not remain independent or efficient and in that case there would be a justification for judicial review.  The balance between the competing pulls of discretion and rule based decision making is a fine one where perception of fairness and even handed treatment is of utmost importance, hence the need to follow guidelines.</p> <p>Standing Order 15 (c) of Part (A – a) of <em>The Uganda Public Service Standing Orders (2010 edition)</em>, provides that the responsible permanent Secretary shall be responsible for, “.....drawing the attention of Responsible Officers to any acts of commission or omission discovered in their respective Ministries, Departments or Local Governments for corrective action.” In the instant application, the burden lay on the applicant to prove that from the point when existence of the vacancy of Principal Assistant Secretary was declared to the District Service Commission going forwards, his promotion was compliant with the process, if any, laid out by the District Service Commission as mandated by para 13 of part A-g of the <em>Public Service Standing Orders</em>. The burden lay on the applicant to prove a <em>prima facie</em> case of compliance with the procedural requirements of promotion before the court could examine whether or not there was any illegality or irrationality involved in the respondent’s subsequent revocation of that promotion.</p> <p>The legal framework for the expected minimum steps in that process, as provided by regulation 26 of <em>The Public Service Commission Regulations, 2009,</em> required the Chief Administrative Officer, when reporting the vacancy of Principal Assistant Secretary to the District Service Commission and recommending that it should be filled by the appointment or promotion of an officer serving with the respondent, to forward a list of all senior eligible officers in the respondent’s service who are available to fill the vacancy, together with the records of their service in the public service and to recommend one of those officers to fill the vacancy. Furthermore, to give his reasons for recommending supersession, if the recommendation involved the supersession of an officer senior to the officer so recommended.</p> <p>From the facts available, the respondent’s Chief Administrative Officer rather than send a list of all eligible officers, instead recommended six eligible Senior Assistant Secretaries to the District Service Commission. There is no evidence that he specifically recommended any single individual, let alone the applicant, out of the list of six candidates, as required by the regulation. It is not clear as well whether or not he submitted the records of their service alongside the names. When the Public Service Commission received an appeal against this process through which the applicant had been promoted to the position of Principal Assistant Secretary, by its letter dated 2nd June 2015 addressed to the  respondent’s Chief Administrative Officer and referenced DSC 33/95/01 Vol. 3, it commented as follows;</p> <p>.....the appeal was presented to the Public Service Commission for consideration during its meeting held on Friday 22nd May, 2015.</p> <p>During deliberations, Members observed that: -</p> <ol> <li>On 11th November 2014, your office made a submission to the District Service Commission recommending six (6) eligible Senior Assistant Secretaries for consideration for promotion to the post of PAS, Scale U2.</li> <li>Although all the six candidates possessed the required qualifications for appointment on promotion to Principal Assistant Secretary, the District Service Commission did not subject them to any form of assessment to arrive at the most suitable candidate.</li> <li>The decision to appoint Mr. Eberuku Pius on promotion to Principal Assistant Secretary was, therefore, subjective and not guided or based on any scientific process. It lacked transparency, fairness and merit.</li> <li>The whole promotional exercise was handled in an irregular manner without following the laid down procedures on promotion.</li> </ol> <p>In view of the above, the appeal against the appointment of Mr. Eberuku Pius on promotion to the post of Principal Assistant Secretary, Scale U2 <strong>was accepted</strong>.</p> <p>Members further decided that Moyo District Service Commission be advised to: -</p> <ol> <li>Rescind the appointment of Mr. Eberuku Pius on promotion to the post of Principal Assistant Secretary, Scale U2 and repeat the whole exercise by conducting it in a more transparent manner by following established principles, rules, regulations and laid down procedures governing recruitment in the Public Service.</li> <li>Always adhere to the established recruitment procedures for the Public Service when handling promotional exercises</li> </ol> <p>The purpose of this letter is to communicate the decision of the Public Service Commission on the appeal and to request you to cause the DSC to take appropriate action as advised.</p> <p>In making this recommendation, the Public Service Commission was exercising its power under article 166 (1) (d) of <em>The Constitution of the Republic of Uganda</em>, 1995 which authorises it to guide and coordinate District Service Commissions. The Public Service Commission in essence recommended that the District Service Commission adopts rule-based management practices in accordance with the letter and spirit of applicable laws and rules in its processes of promotions. This was not a directive but rather advice given to the District Service Commission which the latter was expected to follow, not as an order from a superior authority but instead with the knowledge that the exercise of powers by the District Service Commission in derogation to the direction of law to whose attention it had been drawn, would amount to disobeying the command of law, fairness and transparency in its processes of promotions.</p> <p>Poor recruitment, selection and promotion decisions in the public service not only give rise to costly grievances, complaints, disputes, litigation and discontentment, but also put a strain on the entire system due to a poor post and person match, resulting in unnecessary redeployment of human resource to uphold productivity. It is not a surprise therefore that the District Service Commission opted to follow the advice, and revoked the applicant’s promotion by its minute No. DSC/23/2016 which was communicated to the applicant in a letter written by the respondent’s Chief Administrative Officer on 21st March 2016. The applicant contends that both the Public Service Commission and the District Service Commission violated his right to a fair hearing when the former gave the advice and the latter adopted the advice to revoke his appointment on promotion, to the post of Principal Assistant Secretary.</p> <p> </p> <p>The right to a fair hearing is presumed to apply to public bodies when performing judicial or quasi-judicial functions only. In coming to the decisions they did, both the Public Service Commission and the District service Commission were performing administrative functions in a purely policy-oriented, traditionally administrative sphere of decision-making as opposed to a quasi-judicial function. Both in performance of that function realised that the applicant had assumed that office as a result of a process that was devoid of detailed policies and procedures in place to inform the objective, fair, equitable, consistent and responsible promotion and selection practices; a process where the framework standardised methods and procedures in place to ensure compliance with the statutorily prescribed values and principles as well as national norms and standards regulating human resource in  the public service were not followed; where the latter Commission had not adverted to any skills, competencies, training and traits or similar criteria it required from candidates that vied for the vacant post before appointing the applicant; and where the latter Commission did not have proof of having properly determined valid selection criteria and applied them consistently nor structured their selection processes in accordance with such criteria. The decisions taken by the Public Service Commission and the District Service Commission not having been quasi judicial or disciplinary in nature, the applicant had no right to a hearing before they were taken.</p> <p> </p> <p>Although there is no right to a hearing with respect to bodies charged with performing purely administrative functions, not of a quasi-judicial nature, in a purely policy-oriented, traditionally administrative sphere of decision-making, however, when arriving at decisions with potentially serious adverse effects on someone's rights, interests or status in exercise of a purely administrative power, an administrative authority has a duty to act fairly which is a less onerous duty than that of observing the rules of natural justice demanded of such bodies when they act in a quasi-judicial capacity, such as when they undertake disciplinary proceedings.</p> <p> </p> <p>The duty to act fairly is specifically applicable to decisions that are likely to have serious adverse effects on someone's rights, interests or status. This duty to act fairly is flexible and changes from situation to situation, depending upon: the nature of the function being exercised, the nature of the decision to be made, the relationship between the body and the individual, the effects of that decision on the individual's rights and the legitimate expectations of the person challenging the decision (see <em>Baker v Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (S.C.C.</em>). That the doctrine of natural justice, as a legal doctrine which requires an absence of bias (<em>nemo iudex in causa sua</em>) and the right to a fair hearing (<em>audi alteram partem</em>), could be applied to administrative decision making not of a quasi-judicial nature was first allowed in <em>Ridge v Baldwin [1964] AC 40</em> in which the House of Lords found that the Brighton police authority which had dismissed its Chief Constable (Charles Ridge) without offering him an opportunity to defend his actions, had acted unlawfully (<em>ultra vires</em>) in terminating his appointment following criminal proceedings against him. In some situations, decision makers will be required to observe a high standard of participatory rights guaranteed by the <em>audi alteram partem</em> rule and due process. The purpose of the participatory rights in such situations is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional and social context, with an opportunity for those affected to put forward their views and evidence fully and have them considered by the decision-maker.  In <em>Wood v Woad, L.R.  9,</em> Kelly. C.B. it was held that the <em>audi alteram partem </em>rule “is not confined to the conduct of strictly legal tribunals, but is applicable to every tribunal or body of persons invested with authority to adjudicate upon matters involving civil consequences to individuals," and further in <em>Fisher v Keane, 11 Ch. D. 353 at 363 </em>by Lord Jessel, M.R., that "clubs, or by any other body of persons who decide upon the conduct …. ought not, as I understand it, according to the others, to blast a man's reputation for ever, perhaps to ruin his prospects for life, without  giving  him  an opportunity of either defending or palliating  his conduct." Furthermore, according to the decision in <em>Baker v Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (S.C.C)</em>, it was decided that the duty of fairness owed in such circumstances is more than minimal, and the claimant and others whose important interests are affected by the decision in a fundamental way must have been given a meaningful opportunity to present the various types of evidence relevant to their case and have it fully and fairly considered.</p> <p>In determining whether the respondent in this case met that standard, it must be borne in mind that even though in administrative processes certain ways and methods of judicial procedure may very likely be imitated, and that lawyer-like methods may find especial favour from lawyers, but the judiciary should not presume to impose its own methods on administrative or executive officers (see <em>Local Government Board v. Arlidge, [1915] A.C. 120</em>). The respondent was free, within reason, to determine its own procedures, adapted to suit the nature of the complaint and the circumstances of the case. It would be wrong, therefore, to ask of the respondent, in the discharge of its administrative duties, to meet the high standard of technical performance which one may properly expect of a court. All that is required is for the respondent to have done its best to act justly, and to reach just ends by just means, i.e. acting honestly and by honest means. The nature of this standard was explained in <em>De Verteuil v Knaggs and Another [1918] A.C. 557</em>, as “a duty of giving to any person against whom the complaint is made a fair opportunity to make any relevant statement which he may desire to bring forward and a fair opportunity to correct or controvert any relevant statement brought forward to his prejudice." A high standard of justice is required only when the right to continue in one's profession or employment is at stake (see <em>Abbott v Sullivan [1952] 1 K.B. 189</em>).</p> <p>The issue that was before the Public Service Commission and subsequently the District Service Commission for determination regarded the fairness, transparency and lawfulness of the process through which the applicant had been promoted to the office of Principal Assistant Secretary. It had nothing to do with the suitability of the applicant for that office nor were there any allegations of wrongdoing levelled against him. The complaint addressed structural defects in the process rather than any suspected personal deficiencies of the applicant. There does not appear to be any value that would have beeen added to determination of such an issue by hearing from the applicant first. The decision by both Commissions in the circumstances, taken without hearing from the applicant first therefore does not appear to be so irrational, unreasonable or procedurally improper as to warrant the intervention of this court.</p> <p> </p> <p>On the other hand, the right to a fair hearing is designed to safeguard legitimate individual rights and interests, in respect of persons to whom such action relates, that might materially and adversely be affected by acts, omissions or decisions of any person, body or authority. Such must be legal rights or interests. There are many rights that arise from a contract of employment, but promotion is not one of them, it is more of a privilege than a right.  Suitability for promotion is a discretion exercised by the appointing authority, the District Service Commission in this case. That discretion must be exercised in accordance with the requirements of the <em>Public Service Act</em>, the <em>Public Service Standing Orders, </em>and any other relevant legislation, rules, guidelines and principles. Where the determination of suitability for promotion depends on exercise of discretion of the appointing authority, promotion cannot exist as a matter of right but rather as a prerogative of the employer, exercisable as and when the circumstances favour a decision to that effect. Therefore, unlike a decision whether or not to terminate employment, where employment rights will materially and adversely be affected by leaving employment, hence the right to a fair hearing, with a decision whether or not to promote an employee there is no corresponding right to a hearing because the employee remains in the employment, with no material or adverse repercussion of such a magnitude as would require a hearing.</p> <p>Be that as it may, in seeking judicial review of the decision taken in the circumstances of this application where the right sought to be asserted sprung from a process that fundamentally deviated from the accepted or rule-based norm in matters of promotion in the public service without proper justification, the applicant seeks to invoke the powers of court to legitimise a process where there was no apparent screening and short-listing, a process that was unfair to other equally qualified candidates, which is not only flawed and open to criticism, but also possibly did not produce the desired results. Positions in the public service being matters of public interest, the application inevitably has to be tested on the touchstone of the manifest public interest in the process for the appointment of public officers being clearly defined, fair, equitable and transparent so that the public service may be maintained as an independent service of the State rather than any transient interests.</p> <p> </p> <p>The discretion to promote a public servant is to be exercised, and exercised only, in accordance with such a process. It is not a discretion that may be exercised arbitrarily and without accountability. The Public Service Commission took issue with a process where no screening criteria appear to have been applied in the selection process. The District Service Commission by its subsequent conduct appears to have admitted this error. In order to be fair and objective in the screening of candidates, it is essential that a fixed set of valid criteria be applied in terms of each and every candidate that applies for a position, in order to identify the most suitable candidate. This ensures that the person or body entrusted with the screening of candidates does so in a responsible, objective and accountable manner. This does not appear to have been the case in the instant application. The applicant cannot use judicial review as a means to perpetuate himself in a position attained through a fundamentally flawed process that was conducted in a manner that is contrary to public interest. The situation in this application is akin to one that may give rise to the doctrine of <em>ex turpi causa non oritur actio</em> ("from a dishonourable cause an action does not arise"). Even if a promotion may be regarded as an interest for the employees, no legitimate enforceable interest may arise from an appointment process conducted contrary to public policy. It is the duty of this court to promote equal opportunity in public service employment by eliminating unfair discrimination in any recruitment or promotion policy or practice. To grant this application would be to act to the contrary and against public policy.</p> <p> </p> <p>The applicant further claims to have been treated unfairly. The right to fair treatment in administrative action is a guarantee that every person has the right to administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair. It may also include the right to be given reasons for any administrative action that is taken against a person, where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person. Having resolved that the circumstances of this application did not confer upon the applicant the right to be heard but rather the right to fair treatment, the right to fair treatment in administrative action nevertheless guaranteed him the right to be given reasons for the administrative action that was taken by the District Service Commission, to the extent that it adversely affected his “assumed” promotion.</p> <p> </p> <p>The evidence before me shows that the respondent invited the applicant to meet its District Service Commission on 14th January 2016 by a letter dated 7th January 2016. The purpose indicated in the letter was to “brief you on the proceedings of appeal made against your recruitment as Principal Assistant Secretary...” On the 22nd January 2016, the applicant responded that he had received the communication late on 22nd January 2016 and had by that date already been advised by his lawyer “to seek alternative means to respond to your call at an appropriate time.” In paragraph 6 of the affidavit in reply, the respondent avers that the applicant appeared at a later date whereupon the advice given by the Public Service Commission to the District Service Commission was read to him by the Secretary of the District Service Commission. The District Service Commission thereafter by its minute No. DSC/23/2016 revoked the promotion which decision was communicated to the applicant in a letter written by the respondent’s Chief Administrative Officer on 21st March 2016. The Court is concerned with evaluating fairness as Lord Hailsham L. C. ably puts it in <em>Chief Constable of North Wales Police v. Evans, [1982] 1 W. L. R. 1155 at 1160</em>;</p> <p>It is important to remember in every case that the purpose ... is to ensure that the individual is given fair treatment by the authority to which he has been subjected and that it is no part of that purpose to substitute the opinion of the judiciary or of individual judges for that authority constituted by law to decide the matters in question.</p> <p> </p> <p>It is my considered view that he was given fair treatment by this process which satisfied his right to be given reasons for the administrative action that was taken against his promotion. Moreover, if the applicant enjoyed any right to a fair hearing before the decision to revoke the promotion was taken, that right was respected as well by that process considering the manner in which the decision was taken, after he was given an opportunity to appear before the District Service Commission and hearing from him. I have therefore not found any reason justifying issuance of an order of certiorari regarding the decision to revoke the applicant’s promotion to the post of Principal Assistant Secretary and reversion to the position of Senior Assistant Secretary. I consider that claim to be misconceived reasons wherefore the prayer is rejected.</p> <p> </p> <p>Lastly, the applicant contends that he deserves an order of certiorari, prohibition and an injunction to quash and restrain the respondent from posting him to Laropi Sub-County and from advertising the post of Principal Assistant Secretary. Apart from the claim that his right to be heard was not respected when the impugned decisions were made, which has already been decided to be a misconceived position, he has not advanced any other justification for the orders sought. The guidelines to be followed when public officer is to be transferred from one Local Government to another (and presumably from one duty station to another within the same Local Government) when need arises are specified by Standing Order 2 of part (F - c) of <em>The Uganda Public Service Standing Orders (2010 edition)</em> as follows; -</p> <p>(a)          Posting must always be justified on genuine administrative considerations;</p> <p>(b)          Postings must never be used as a punitive measure; and</p> <p>(c)          Postings must be carried out in accordance with deployment plans.</p> <p> </p> <p>There is nothing before me to suggest that the applicant’s posting to Laropi Sub-County was done in violation of those guidelines. To justify grant of the orders sought, it was incumbent upon the applicant to show that his posting to Laropi Sub-County was a negative employment decision that was motivated by discrimination rather than by evaluation of his qualifications, administrative considerations and deployment plans of the respondent. In such a case, the applicant would have been expected to assert that, "but for" the use of an illegal criterion for the decision (such as his sex, origin, religion, age, retaliation or as a punitive measure), the decision would have been positive, which would have required the court to examine the decision to ascertain what criteria were used to make the decision and whether they were applied fairly in this case.</p> <p> </p> <p>Alternatively, the court may have intervened if there were averments that in taking that decision, the respondent had failed to comply with a mandatory and material procedure or condition prescribed by an empowering provision; that the decision was procedurally unfair; that it was materially influenced by an error of law; that it was taken with an ulterior motive or purpose calculated to prejudice his legal rights; that the respondent failed to take into account relevant considerations; that the respondent acted on the direction of a person or body not authorised or empowered by any written law to give such directions; that the decision was made in bad faith; that the decision is not rationally connected to- (i) the purpose for which it was taken; (ii) the purpose of the empowering provision; (iii) the information before the respondent; or (iv) the reasons given for it by the respondent, or such similar grounds. Since the applicant has not advanced any averments of that nature, there is no basis for intervening in what is otherwise a purely administrative decision of the respondent.</p> <p> </p> <p>The respondent’s decision to advertise the post too has not been impugned on any sustainable grounds. The process through which the applicant was promoted having been found to be fundamentally flawed, it was necessary to start afresh, this time in compliance with the framework legal structures in place. It is unfortunate the the applicant decided not to participate in that process but in my view it is a process that has been undertaken in satisfaction of the public interest in ensuring that public offices are occupied or filled through a fair, even and justly applied, transparent process. There is no justification from granting injunctive relief in the circumstances.</p> <p> </p> <p>The Court cannot substitute its own decision for that of the District Service Commission and the Chief Administrative Officer. The limit of the authority of court in judicial review is first to establish whether or not there was illegality, irrationality or impropriety in the process, whereupon if established it may then proceed to direct the District Service Commission and the Chief Administrative Officer to comply with the legal and procedural requirements but not to substitute, its own decision for that of the District Service Commission and the Chief Administrative Officer. In determining whether administrative action is justifiable in terms of the reasons given for it, value judgments will have to be made which will, almost inevitably, involve the consideration of the ‘merits’ of the matter in some way or another. As long as the Judge determining this issue is aware that he or she enters the merits not in order to substitute his or her own opinion on the correctness thereof, but to determine whether the outcome is rationally justifiable, the process will be in order. I have not found any of such reasons warranting this courts intervention.</p> <p> </p> <p>In the final result, there is neither a basis for issuing the orders sought nor for the award of damages. This application is therefore dismissed with costs to the respondent.</p> <p> </p> <p>Dated at Arua this 8th day of December 2016.                       …………………………………..</p> <p>                                                                                               </p> <p>Stephen Mubiru</p> <p>                                                                                                Judge.</p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-90b7a043c1566a839ce89ce5f69a8d4b"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/hc-civil-division/2016/120/hc-civil-division-2016-120.docx" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Tue, 27 Dec 2016 08:26:27 +0000 Eunice Logose 26842 at https://old.ulii.org Busuulwa v National Social Security Fund & 2 Ors (HCT-00-CV-MA-0116-2016) [2016] UGHCCD 41 (31 May 2016); https://old.ulii.org/ug/judgment/hc-civil-division-uganda/2016/41 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/equality-law-and-equal-protection-law" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Equality before the law and equal protection of the law</a></li><li class="field-item odd"><a href="/tags/hr" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">HR</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p><strong>THE REPUBLIC OF UGANDA</strong></p> <p><strong>IN THE HIGH COURT OF UGANDA AT KAMPALA</strong></p> <p><strong>CIVIL DIVISION</strong></p> <p><strong>HCT-00-CV-MA-0116-2016</strong></p> <p><em>(Arising from Misc. Applications No.96 and 97 of 2016 and </em></p> <p><em>Miscellaneous Cause No. 32 of 2016)</em></p> <p> </p> <p><strong>MRS. GERALDINE BUSUULWA SSALI </strong><strong>::::::::::::::::::::: APPLICANT</strong></p> <p> </p> <ul> <li><strong>VERSUS –</strong></li> </ul> <ol> <li><strong>NATIONAL SOCIAL SECURITY FUND</strong></li> <li><strong>PATRICK BYABAKAMA KABERENGE    :::::::::: RESPONDENTS</strong></li> <li><strong>RICHARD BYARUGABA   </strong></li> </ol> <p>                                                                                                               </p> <p> </p> <p><strong>BEFORE:  HON. JUSTICE STEPHEN MUSOTA</strong></p> <p><strong>RULING:</strong></p> <p>This is an application for a declaration that the respondents are in contempt of Court Orders in <strong>MA 97 of 2016, Geraldine Busuulwa Ssali Vs National Social Security Fund and Others</strong>, and a prayer for UGX 1,000,000,000/= as compensation.  The application is brought by way of a Notice of Motion under S. 33 of the Judicature Act, S. 98 of the Civil Procedure Act and Order 52 rules 1,2 and 3 of the Civil Procedure Rules.</p> <p> </p> <p>The grounds of the application as set out in the application and supporting affidavit are that the respondents were served with a court order on the 15th March 2015 at about 10.30 am.  That the order has not yet been vacated, reversed or otherwise quashed by a higher court of law.  That the respondents have since then refused to obey the orders of court and have continued to deny the applicant access to her office despite the court order maintaining the status quo. That the respondents have further issued press statements saying they have blocked the applicant’s official e-mail and fuel card and that the actions of the respondents are in bad faith only intended to abuse court process and bring actions of court into disrepute. Finally that the contempt has been repetitive with impunity and is still continuing to date.  Therefore it is in the interest of justice that this application be granted if courts are to guard their own orders.</p> <p> </p> <p>The respondents opposed the application in three affidavits in reply.  The 1st affidavit is by one Richard Wejuli Wabwire the 1st respondent’s Corporation Secretary dated 13th April 2016, the 2nd is sworn by the 2nd respondent himself dated 13th April 2016 and the 3rd is sworn by the 3rd respondent himself dated 13th April 2016.</p> <p> </p> <p>At the hearing of this application the applicant was represented b M/s Prof. Ssempebwa Fredrick together with Bikala Rogers and Rashid Semambo while the respondents were represented by M/s Segawa and Tumusingize.</p> <p>The  brief background to this application is that in 2014, the applicant was re-appointed Deputy Managing Director of the 1st respondent fund by the appointing authority who is the Minister responsible for Social Security Fund, the Minister of Finance, Planning and Economic Development.  She took maternity leave and on her return was directed to go on forced leave by the 2nd respondent, the Chairman of the Board of Directors.</p> <p> </p> <p>However, the applicant rejected the directive to go on forced leave on grounds that she did not need it because she had just returned from maternity leave.  Having rejected the leave offer, the Chairman of the Board wrote a letter suspending her from her job allegedly on grounds of lack of respect for her superiors.  This suspension came on 14th March 2016 the same day on which an interim order was granted by this court and served on the respondents on 15th March 2016.  The applicant then filed an application for Judicial Review of the decision making process adopted by the respondents which is still pending in court.  She also filed an application for a temporary injunction and interim injunction both of which were granted.  The applicant claims that the respondents did not comply with the orders of the court in the interim injunction and therefore were in contempt of court hence this application.</p> <p> </p> <p>In his submissions Mr. Rashid Semambo learned counsel for applicants submitted that the law on contempt was well established in the case of <strong><em>Mega Industries (U) Ltd Vs Comfoam Uganda Ltd </em></strong>where court citing the <strong><em>Sitenda Sebalu Case</em></strong> ruled that for contempt of court to exist, there must be a lawful court order and the potential contemnor must have been aware of the court order and failed to comply with the order or disobeyed the same.  That in the instant case, it is clear that the application for the interim order was heard interpartes on 14th March 2016 and a ruling was delivered thereafter.  That at the hearing the respondents made mention of the board disciplinary proceedings which this court in the ruling faulted and allowed the interim injunction and issued an order stopping any attempts to push the applicant out of office and suspending her pending the hearing of the substantive application on 4th April 2016.  That the applicant attempted to enter office and it is beyond dispute that she was blocked on the orders of the respondents following the board resolution purportedly suspending her from duty.  That there is conflicting evidence as to what time the board meeting took place because in the main application for Judicial Review the 2nd respondent stated that it was held at 9.00a.m. Whereas in his affidavit in reply to the application for an interim injunction he states that it was held at 8.00a.m.  That, therefore, all the actions of the respondent were an attempt to frustrate any further proceedings that were arising from the dispute.</p> <p> </p> <p>Learned counsel for the applicant relied on the case of <strong><em>Wildlife Lodges Ltd Vs County Council of Narok &amp; Anor 2005 EA 344 </em></strong>where it was held that a court does not act in vain and as such issues touching contempt of court take precedence over any other case or invocation of jurisdiction of court.</p> <p> </p> <p>Learned counsel for the applicant further submitted that this court in its ruling on the temporary injunction application in MA 96 of 2016 commented and said that the application actions were an attempt to justify their suspicious conduct but had failed miserably.  That even a corporation may be held in contempt as per the case of <strong><em>Stanbic Bank Limited &amp; Anor Vs The Commissioner General URA MA 42 of 2010.</em></strong></p> <p> </p> <p>That the continued refusal of the respondents to comply with the decision of court in MA 97 of 2016 amounts to contempt of court especially since they adopted further parallel sinister actions under the guise of a board meeting and purported to suspend the applicant in contravention of the law.  Learned counsel prayed that this court sets a precedent and finds that there can be contempt of court by managers in their individual capacity who hide behind the veil of the 1st respondent and that this must be condemned and will help eliminate impunity by the individuals who in the end will not suffer but cause loss to the tax payers.</p> <p> </p> <p>Learned counsel also prayed that this court be pleased to order that the respondents having acted in contempt should pay a fine of 1,000,000,000/= but especially the 2nd and 3rd respondents.  That the applicant also be compensated and be allowed to enjoy the fruits of judgment from this court and costs of the application be granted.</p> <p> </p> <p>On behalf of the respondents Mr. Tumusingize learned counsel for the respondents opposed the application.  He submitted that the purpose of an injunction is to preserve the status quo.  That it was on 15th March 2016 at 10.00a.m. when the order was served on the respondents.</p> <p> </p> <p>Further that it is not disputed that at the time a board meeting had already taken place on 14th where a decision to suspend the applicant was made. That there is no contradiction in the affidavit of the 2nd respondent and that the order allegedly disobeyed is Annexture RWW1 to the affidavit of Wabwire and specifically restrained the enforcement of the order in the letter of 9th March 2016 and that is the order that was served and extracted by counsel for the applicant.  That the ruling was never served on the respondents does not bear the aspect of suspension and that is not the fault of the respondents.  That it is not proper for the applicants to make reference to the ruling which does not conform to the order served.</p> <p> </p> <p>Mr. Tumusingize further submitted that the order could not cover the decision of the board and it was speculative of the Deputy Registrar as matters of the board were not before him.  That the Deputy Registrar in his ruling for the interim injunction was under a misapprehension that the suspension letter was not served yet in paragraph 6 (F) of the affidavit of Wabwire it is indicated that at 1.00 pm the suspension letter was dispatched to the applicant’s residence communicating the decision of the board yet MA 96 of 2016 commenced at 4.00p.m.  Therefore, the claim that the order was served at 10.00 am is a falsehood.  That the status quo that was maintained is that earlier a board meeting was convened to suspend the applicant, so there is no way the respondent would have been in contempt of an order of court which was served after the event.</p> <p> </p> <p>Mr. Tumusingize further submitted that the <strong><em>Comfoam case</em></strong> referred to by learned counsel for the applicant is distinguishable from the instant case because in that case there was an order stopping the manufacture of mattresses with the Mark of another company and they failed to comply.  But in this case the order came after the event.  That even the <strong><em>Stanbic Bank case</em></strong> was after the injunction when URA threatened the Managing Director with imprisonment unlike in this case.  Learned counsel also relied on the case of <strong><em>Kensington Africa Ltd Vs Stanbic Bank (U) Ltd and 3 Ors</em></strong> where a garnishee order nisi was issued which later became absolute and was served on the Bank but the Bank could not reverse it.  Contempt proceedings were brought against the Bank and it was held that the Bank could not reverse the status quo.</p> <p> </p> <p>That a meeting was held and the resolution was passed and after that the court order was served after it had been overtaken by events.  That one cannot comply with an order which has been overtaken by events.  That the issues concerning the fuel card, media statements and motor vehicle are post board meeting and resolution.  That the application be rejected with costs.</p> <p> </p> <p>In rejoinder Mr. Semambo learned counsel for the applicant submitted that the majority of arguments by the respondents were criticizing the ruling of the learned Deputy Registrar in MA 97 of 2016 in an attempt to fault him on how he made the order but this is not the proper forum for such arguments. </p> <p> </p> <p>That if the respondents want to challenge the orders of court they should either appeal or apply to vary the order or review the decision of the Registrar.  That all parties must comply with the ruling of the court both in its spirit and its entire detail, so any mistakes in the order cannot be used as a basis for defiance of valid court proceedings.</p> <p> </p> <p>Regarding the procedure for extracting a court order, learned counsel submitted that the unilateral extraction of a court order does not nullify it nor does it give rise to defiance or refusal to comply therewith.  He cited the case of <strong><em>Lukwago Elias Vs AG &amp; 3 Ors</em></strong> where the learned judge cited with approval the case of <strong><em>Crane Trace Ltd Vs Makerere Properties Ltd </em></strong>and submitted that in this case the contempt arises out of proceedings interpartes whereas the respondents argue that by the time the order was served the board meeting had sat suspending the applicant.  That such argument cannot hold because the respondents were party to the proceedings and were for all intents and purposes under obligation to ensure compliance and avoid any defiance.</p> <p> </p> <p>I have thoroughly considered this application, the affidavits and submissions by respective counsel.  It is trite law that interim injunctions are equitable remedies intended to mitigate the harshness of common law.  This court is not only a court of law but is also a court of justice to curtail the suffering of citizens under the law.  It is in this spirit that courts came in to apply equity to mitigate the untold difficulty and unfairness of common law caused to the people.  The rules and maxims of equity are firmly rooted in our law and are part of the Judicature Act S. 14 (2) thereof.</p> <p> </p> <p>Now, what is equity?  Equity refers to whatever is just and whatever is right in all human relationships and transactions.  It is the power to meet the moral standards of justice in a particular case by a Judicial body possessing the discretion to mitigate the rigid application of strict rules in order to adopt the Judicial relief to the peculiar circumstances of a case without antagonizing the law itself.  See <strong><em>Mc Clintock Handbook of the Principles of Equity 1948.</em></strong></p> <p> </p> <p>It is a well established maxim of equity that equity will not suffer a wrong to be without a remedy which means that where common law does not recognize or enforce a right or fails to provide a remedy, equity steps in or intervenes to provide a suitable remedy under the circumstances.  A person whose right is being infringed has a right to enforce the infringed right through any actions before a court because courts are keepers of the conscience of the community in regard to absolute enforcement of the law:  <strong><em>Ashogbon Vs Oduntan (1935) 12 N.L.R. 7.</em></strong></p> <p> </p> <p>In a nutshell, equity is not part of the law, but a moral virtue which qualifies, moderates, and reforms the rigor, hardness and edge of the law and is a universal truth.  It does also assist the law, where it is defective and weak in the constitution (which is the life of the law), and defends the law from crafty evasions, delusions and mere subtleties, invented and contrived to evade and elude the (common) law, whereby those who have undoubted right are made remediless.  And thus is the  office of equity to protect and support the (common) Law from shifts and contrivances against Justice of the law.  Equity therefore does not destroy the law, nor create it, but assists it.  <strong><em>Dudley Vs Dudley (1705) Prec, Ch. 241 at 242.</em></strong> </p> <p> </p> <p>I entirely agree with the principles of law I have stated above.  It was in the spirit of those principles that the registrar granted the application in MA 97 of 2016.  Therefore the decision by the learned registrar is a valid ruling since it remained unchallenged.</p> <p> </p> <p>From the evidence adduced by both parties and the respective submissions, I am more inclined towards the submissions by learned counsel for the applicant.</p> <p> </p> <p>In this case, the respondents seem to have lost their conscience to the extent that they could not allow the court process to be completed.  The thrust of the respondents’ reply to this application is that since the board resolution to suspend the applicant was passed before the ruling or hearing of the application for the interim injunction then they were not under obligation to maintain the status quo.</p> <p> </p> <p>It is a fact however that by the time of the alleged board meeting the respondents knew that there were pending proceedings against them with clear prayers as contained in the ruling and order of the Deputy Registrar.</p> <p> </p> <p>I must say that the respondents and counsel for the respondents are not being very helpful to this whole court process given the way they are advancing their case.  The arguments they make suggest that they are out to push an agenda which they have not been courteous enough to disclose to this court.</p> <p>All through this case court has already experienced the same heat of antagonism and legal maneuvers that the applicant is facing in NSSF because wile proceedings for the application or the interim injunction had been fixed for hearing on 14th March 2016, the Board of NSSF sat in a meeting earlier that day and resolved that the applicant be suspended.</p> <p> </p> <p>All this was done in total disregard to the proceedings in court and was intended to undermine and fail the court process.  That is why learned counsel for the respondents was happy to submit before the learned Registrar that the main cause, the main application and application for the interim injunction had been overtaken by events.  This cannot be condoned by this court.</p> <p> </p> <p>When this application came up for hearing learned counsel for the respondents made another interesting but sad argument that proceedings in court do not operate as an injunction and therefore even if the NSSF was aware of the case it was under no obligation to give court a chance to look into the matter and therefore the board was free to pass the resolution that could potentially undermine court process.  Counsel for the respondents were under professional obligation to discourage their clients from taking any steps that would undermine court process since there seems to have been no urgency in the decision they intended to pass through. </p> <p> </p> <p>Clearly both the respondents and their counsel did not case at all about the norms of justice.</p> <p> </p> <p>It is very disappointing that the NSSF with arguably the best Managers could act in such a way as to undermine the due process of the law, a process in which they were fully participating in with the help of counsel of their choice.  All these maneuvers and actions are highly suspected.</p> <p> </p> <p>I will therefore find that the respondents’ case and arguments are without merit, or an element of justice and principles of equity and I am inclined to disagree with them.</p> <p> </p> <p>I am in agreement with the submissions by learned counsel for the applicant that the law on contempt of court was well articulated in the often quoted case of <strong>Megha Industries (U) Ltd Vs Conform (U) Ltd</strong> where court citing the <strong><em>Sitenda Sebalu Case</em></strong> ruled that for contempt of court to exist there must be a lawful court order, and the potential contemnor must have been aware of the court order and failed to comply with the order or disobeyed the court order.</p> <p> </p> <p>I will however add that a party who takes deliberate steps to undermine the court process by deliberately altering the status quo when he/she is aware of an ongoing court process and is participating therein and is aware of the prayers being sought in the proceedings, should be held in contempt of court.</p> <p> </p> <p>In this application, it is an undisputed fact that the respondents were well represented at the hearing of MA 97 of 2016.</p> <p> </p> <p>It is also an undisputed fact that at the same hearing issues relating suspension of the applicant and the alleged emergency board meeting came up and the deputy Registrar made comments on them.  See: Annexture B pages 3-4 attached to the affidavit in support of the application).</p> <p> </p> <p>It is also undisputed fact that there was a ruling and a court order arising out of that ruling.  In his concluding remarks in te ruling, the learned Deputy Registrar ordered thus:</p> <p> </p> <p><strong><em>“Let therefore an interim order issue to restrain the respondents and her agents, principals and officers under her from effecting the decisions of the 2nd respondent of pushing her out of her office and suspending her, pending the hearing of the substantive application on 4th April 2016,”</em></strong></p> <p> </p> <p>This order is self explanatory and the extracted order should be read together with the Ruling which was attended by the parties.  This has been the practice since the two documents supplement each other. </p> <p> </p> <p>Therefore the first two elements for contempt of court have been established.</p> <p> </p> <p>The other issue for consideration is whether the respondents disobeyed the court orders.  The court order was as stated in the Ruling of the Deputy Registrar and it basically required the respondents to refrain from implementing any of their decisions pushing out or suspending the applicant from work.  The reason why the respondents say they are not in contempt of court order is because the order served on them was not in the same wording as the Ruling.  That the order only related to the 9th March 2016 letter regarding the forced leave and had nothing on suspension.</p> <p> </p> <p>This argument cannot stand because the Ruling was received in court with the respondents’ representatives and counsel in court. Any omissions in the order ought to have been raised by counsel for the respondents as officers of court since it is incumbent on them to disclose that which is adverse to them.  The omission should not have been taken advantage of.</p> <p> </p> <p>From the evidence on record and submissions, the respondents have effectively implemented the suspension by pushing the applicant out of office and denying her access to the office.  They have even withdrawn her entitlements as Deputy Managing Director despite the court Ruling and orders. I find this action contemptuous.</p> <p> </p> <p>In the submissions by learned counsel for the applicant he prayed that this court makes a precedent and finds that there can be contempt of court by Managers in their individual capacity who hide behind the veil of their company.</p> <p> </p> <p>It is trite law that if a body corporate is involved in litigation a director or manager could be personally liable in the following circumstances:</p> <ol> <li> For costs the court has discretion to make orders for costs against directors personally in certain situations if it deems fit;</li> <li>For contempt of court, a director or Manager could be in contempt of court and risks a fine or imprisonment if he fails to:</li> </ol> <p>(a) Preserve documents which are relevant to a court case;</p> <ol> <li>Ensure that the company obeys court orders; or</li> <li>Make a false statement in a witness statement without honesty believing it to be true.</li> </ol> <p> </p> <p>The primary purpose of contempt power is to preserve the effectiveness and sustainance of the power of the courts.  <strong><em>People Vs Kurz 35 Mich App. 643, 656 (1971).</em></strong></p> <p> </p> <p>For the reasons I have outlined herein, I will find merit in this application.  It is accordingly allowed.  I will declare 1st, 2nd and 3rd respondents are in contempt of court orders.</p> <p> </p> <p>In its pleadings and submissions the applicant prayed for compensation for the loss and suffering caused as a result of the contempt by the respondents as well as a fine of UGX 1bn/= jointly and severally imposed on the respondents. I believe the compensation envisaged here is in terms of general damages. </p> <p> </p> <p>The award of general damages is within the discretion of court.  They are awarded to compensate someone for the none monetary aspects of the harm suffered.  They compensate physical and emotional pain and enjoyment of life.</p> <p> </p> <p>In the case of <strong><em>Stanbic Bank Ltd &amp; Anor Vs The Commissioner General URA MA 42 of 2010. </em></strong>Court imposed a fine of 100m/= as sufficient punishment to purge the contempt in that matter.  However court declined to award punitive damages.</p> <p> </p> <p>In <strong><em>Mega Industries (U) Ltd Vs Comfoam Uganda Ltd </em></strong> <strong><em>MC 21 of 2014</em>  </strong>court awarded Exemplary damages of Shs.300,000,000/- to the Applicant Company with payment of interest at court rate from date of this ruling till payment in full.  The court handed down a penalty of UGX 100,000,000/- for contempt of court orders in Civil Suit 269/2011 which was  to be deposited in court.</p> <p> </p> <p>In the circumstances of this case, I will award the applicant general damages of UGX 200,000,000/=.  In addition the respondents shall pay a fine of UGX 50,000,000/= for contempt of court orders to be deposited in court.</p> <p> </p> <p>The general damages will carry interest at court rate from the date of this ruling till payment in full.  The applicant shall get the costs of this application.  The decretal sum shall be chargeable on the respondents jointly and severally. </p> <p> </p> <p>I so order.</p> <p> </p> <p><strong>Stephen Musota</strong></p> <p><strong>J U D G E</strong></p> <p><strong>31.05.2016</strong></p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-eb488288097f35b9181a7d8758b6324f"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/hc-civil-division/2016/41/hc-civil-division-2016-41.docx" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Tue, 26 Jul 2016 12:51:42 +0000 Eunice Logose 26347 at https://old.ulii.org Sekikubo & Ors v Attorney General (MISC. CAUSE NO. 092 OF 2015) [2016] UGHCCD 26 (4 April 2016); https://old.ulii.org/ug/judgment/hc-civil-division-uganda/2016/26 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/equality-law-and-equal-protection-law" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Equality before the law and equal protection of the law</a></li><li class="field-item odd"><a href="/tags/have-his-cause-heard-fair-trial" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Have his cause heard (fair trial)</a></li><li class="field-item even"><a href="/tags/hr" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">HR</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p><strong>THE REPUBLIC OF UGANDA</strong></p> <p><strong>IN THE HIGH COURT OF UGANDA AT KAMPALA</strong></p> <p><strong>CIVIL DIVISION</strong></p> <p><strong>MISC. CAUSE NO. 092 OF 2015</strong></p> <p><strong>IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW</strong></p> <p> </p> <p><strong>1. HON. SEKIKUBO THEODRE</strong></p> <p><strong>2. HON. TINKASIMIRE BARNABAS                             :::::::: APPLICANTS           </strong></p> <p><strong>3. HON. SEWUNGU GONZAGA JOSEPH </strong></p> <p><strong>VERSUS</strong></p> <p><strong>ATTORNEY GENERAL :::::::::::::::::::::::::::::::::::::: RESPONDENT</strong></p> <p> </p> <p><strong>BEFORE:</strong>  <strong>HON. JUSTICE STEPHEN MUSOTA</strong></p> <p><strong>RULING</strong></p> <p>This is an application for Judicial Review of the decision of the Government of Uganda represented by the Ministry of Works &amp; Transport to sign a Contract Agreement on 30th March 2015 with <strong>China Harbor Engineering Company Limited (CHEC)</strong> regarding the <strong>Eastern &amp; Northern Standard Gauge Railway Network Project</strong>.</p> <p>The application is brought by way of Notice of Motion under Articles 40, 50, 126 and 139 of the Constitution of the Republic of Uganda 1995, Section 33 of the Judicature Act, Section 98 of the Civil Procedure Act, Rules 23(1)(a) and 6(1) of the Judicature (Judicial Review) Rules 2009 and other enabling laws.</p> <p>The applicants seek for orders that:</p> <ol> <li>A declaration that the decision of the Government of Uganda represented by the Ministry of Works &amp; Transport to sign a Contract Agreement on March 30th 2015 with China Harbor Engineering Company Limited (CHEC)regarding the Eastern and Northern Standard Gauge Railway Network Project,  (Contract Agreement) is illegal, null and void.</li> <li>A declaration that the process leading to the execution of the impugned contract agreement is biased, in bad faith and illegal and contrary to Public Policy and Transparent.</li> <li>A declaration that the process and decision regarding the impugned Contract Agreement offends, violates and frustrates the legitimate expectations of the applicants and the Uganda Public in General.</li> <li>An order of certiorari to quash the said Contract Agreement of 30th March 2015 between the China Harbor Engineering Company Limited (CHEC) and the Government of Uganda.</li> <li>An order of prohibition barring the respondent, its agents, servants and officials or any person from implementing the impugned contract agreement.</li> <li>Costs hereof awarded to the applicant.</li> </ol> <p>At the hearing of this application Mr. Eron Kiiza was on brief for Mr. Wilfred Niwagaba for the applicant while Mr. Bafirawala Elisha (SSA) appeared for the respondent.</p> <p> </p> <p>Briefly the background to this application is that the Government of Uganda has a plan to construct a Standard Gauge Railway. They commenced the process and identified the China Harbor Company Limited (CHEC) to perform this task. Meanwhile the applicants who were members of parliament learnt of this in the course of their duties. They generated a debate on the issues in parliament and started a process of scrutinizing the process which they suspected was full of wrong doing and illegality. Before the parliamentary inquiry could be concluded, the Government of Uganda represented by the Ministry of Works &amp; Transport signed the turnkey agreement on 30th March 2015 for engineering procurement and construction of the Northern line of the Standard Gauge Railway as can be seen in annexture “B” to the affidavit in support. The applicants were then aggrieved by the process that was adopted to sign the contract hence this application.</p> <p> </p> <p>The grounds of the application are stated in the application and the supporting affidavits of Hon. Theodore Sekikubo and Hon. Tinkasimire Banabas both dated 24th June 2015. In summary they are that; the impugned contract agreement and the process leading to its execution are vitiated, were full of illegality, irrationality and procedural impropriety. Further that the signing was contrary to the legitimate expectations of the applicant and other members of public. Further that the signing of the contract skipped the parliamentary process, that the contract was signed and negotiated in bad faith and in a high handed manner. That the signing of the impugned contract is contrary to the national interest, public interest, common good and governance and democratic practice, and that it is just and equitable that the application be allowed.</p> <p>The respondent filed an affidavit in reply to the petition sworn by Alex B. Okello, the Permanent Secretary in the Ministry of Works and Transport dated 17th September 2015. In summary, he states that; the project is an international project that was agreed upon in a summit held on 25th June 2013 in Entebbe Uganda. That the project will raise Uganda’s competitiveness and reduce the cost of doing business and foster social, economic transformation and is being fast tracked by all the heads of government of the Member States in the summit. That any injunctive remedies if granted would expose government to serious financial penalties if it does not perform part of its obligations in the contract within the stipulated time frames. In paragraph 15, most importantly the respondent states that it is not true as alleged by the applicants in their affidavits that the Government of Uganda illegally procured the China Harbor Engineering Company Limited to perform the Engineering Procurement and Construction (EPC)/Turnkey Contract of the Eastern and Northern Standard Gauge Railway Network Project.</p> <p> </p> <p>Further in paragraph 18 that the parliament of Uganda through its established select committee investigated and tabled a report before the house with a recommendation that the project should be expedited as per annexture “K”.</p> <p>In paragraph 19(b) he also states that during the entire course of the investigation by the selected committee of parliament there was no communication at all to the executive to halt the process and in paragraph 19(d) the Attorney General advised on the project and there is a bilateral agreement outside the PPDA Act as per annexture “O” to the affidavit in reply. That using experienced and established technocrats the Government of Uganda confirmed that the Chinese company was dully qualified as per annexture “Q”.</p> <p>In paragraph 22 he depones that the contract was drawn to international standards and the price can only change according to the terms in the internationally recognized FIDIC contract form as per annexture “R”. In paragraph 27, it is stated that the project must be completed by the year 2018. In summary, he appears to justify the actions of Government of Uganda and demonstrate that indeed due process was followed and it was all lawful.</p> <p> </p> <p>The applicants filed an affidavit in rejoinder sworn by the 1st applicant dated 6th October 2015 and in paragraph 3, he states that the project was not international in its implementation and therefore each State was to locally incur its own cost of the project.</p> <p>In paragraph 4, he states that the purpose of this application for judicial review is intended to redeem the credibility of government and its officials and give a chance to a proper technical process that would ensure value for money and save government and the people of Uganda a heavy cost.</p> <p>Paragraph 7 states that the procured contractor was inexperienced and there were many irregularities and illegalities in the process. In paragraph 8 he states that it was incumbent upon the executive not to sign the contract since the parliament was investigating the process at the time. In paragraph 11 it is stated that he strongly believes that the contract was governed by the PPDA Act and failure of the respondents to comply with the same was an illegality as the Accounting Officer bypassed the procurement unit.</p> <p>In paragraph 16 he states that the report of the due diligence on the company procured showed that they had only four years experience in railway development and he states that the contract provides for variations and prices which are likely to drive up the cost of the project. The affidavit in rejoinder does not carry any attachment to it to prove those averments.</p> <p> </p> <p>This court allowed both parties to write submissions which were filed in court respectively.</p> <p> </p> <p>I have carefully studied the application, the law applicable, affidavits and submissions filed by the parties to this application.</p> <p> I will go ahead and make my decision on the application.</p> <p>Although learned counsel for the applicants did not raise the issues in the submissions this court will agree with the proposed issues by learned counsel for the respondents that this application raises three issues for determination. These are:-</p> <ol> <li>Whether the applicants have a <em>locus standi</em> to bring this application.</li> <li>Whether the application raises issues/grounds of Judicial Review.</li> <li>Whether the applicants are entitled to the remedies sought in the application.</li> </ol> <p> </p> <p>I will start by resolving the issue 1: whether the applicants have a <em>locus standi</em> to bring this application.</p> <p> </p> <p>According to the submission by learned counsel for the applicants, his clients have a locus standi since they are citizens of Uganda and Members of Parliament. On the other hand, learned counsel for the respondents submitted that the applicants have no <em>locus standi</em> to bring this application.</p> <p> </p> <p>According to <strong>Osborn’s Concise Law Dictionary 11th Edition, Sweet and Maxwell,</strong> Locus Standi means a place of standing. It is the right to be heard in court or other proceedings. Usually the issue of <em>locus standi</em> is technically a preliminary one in an administrative action of Judicial Review. It is trite law that <em>locus standi</em> is the way in which the courts determine who may be an applicant for Judicial Review. It is only those with <em>locus standi</em> that can be permitted to have their request heard although determining that an applicant has <em>locus standi</em> will not necessarily mean that they will be successful in their application. A person found to have no <em>locus standi</em> will ordinarily not have standing to bring an action and the courts cannot hear his/her complaint. Therefore no application for Judicial Review should be made unless the applicant has sufficient interest in the matter to which the application relates. In this way court will limit the number of challenges to administrative decisions which could otherwise cause unnecessary interference in the administrative process. This is in line with Article 42 of the Constitution of the Republic of Uganda 1995 which gives the right to apply to court to only persons whose right to be treated fairly by an administrative body has been violated. See: <strong><em>Hon. Abdul Katuntu &amp; Anor Vs MTN (U) Limited &amp; Ors HCCS No.248 of 2012. </em></strong></p> <p> </p> <p>In England, having or lack of standing is considered in two stages, firstly at the state of getting leave. At this stage court may refuse <em>locus standi</em> to anyone who appears to be a mere busy body or Mischief Maker.</p> <p>Secondly if leave is granted, the court may consider <em>locus standi</em> as part of the hearing of the merits of the case where it may decide that in fact the applicant does not have sufficient interest. These two scenarios were pronounced by Lord Scaman in <strong>IRC Vs National Federation of Self Employed and Small Business [1982] AC 617. </strong></p> <p> </p> <p>However in Uganda given that the requirement for leave is no longer there in the rules then the second option is the one applicable to our situation.</p> <p> </p> <p><em>Locus Standi</em> may be considered as applicable to two groups of applicants;</p> <ol> <li> the individuals;</li> <li>pressure groups.</li> </ol> <p> </p> <p>Where individuals are concerned it is fairly easy for them to demonstrate sufficient personal interest in the decision they wish to challenge. For example in the case of <strong>R Vs Independent Broadcasting Authority, Exparte White House, [1984] times reports<em> April</em></strong> a television license holder was found to have sufficient standing to challenge a decision to broadcast a controversial film. It was held that every television license holder would have locus standi in litigation relating to the broadcast of programs likely to give offence. Thus the fact that the applicant was a license-holder rather than simply a viewer was enough to give her sufficient standing.</p> <p> </p> <p>I wish to note however that where interest or pressure groups are concerned the issue of <em>locus standi</em> is more complicated. There is however no big problem where a group is acting in relation to a decision which directly affects its own interests because it would be acting in the same way as an individual. However, where the group has been formed simply to challenge a decision which does not directly concern its members, then the group will not have sufficient standing. See:<em> <strong>R Vs Secretary of State for Environment exparte Rose Theatre Trust [1990] 1 QB 504.</strong> </em></p> <p> </p> <p>But if a group can demonstrate that some or all its members are personally interested in the decision <em>locus standi</em> will be found.  See: <strong><em>R Vs HM Inspectorate of Pollution exparte Greenpeace Ltd No 2 [1944]4 All ER 329</em></strong></p> <p> </p> <p>It is my considered finding that none of these aspects is demonstrated by the applicants herein. They only claim that as citizens and active Members of Parliament in Uganda, they are entitled to challenge the decision. The question then arises if being citizens and active members of parliament shows sufficient interest to warrant entitlement to prerogative orders?</p> <p> </p> <p>In the case of <strong><em>Tan Eng Hong Vs Attorney General [2012]4 SLR 476</em></strong>, it was held <em>inter alia</em> that proof of violation of personal rights is necessary to establish standing or <em>Locus standi</em> in matters of Judicial Review. There is no indication or claim that any personal right of any of the applicants has been violated to found a standing. The High Court of Singapore judgment in <strong><em>Jeyaretnam Kenneth Andrew Vs Attorney General (2012) SGHC 210</em></strong> is very persuasive on this point. The facts in that case are that on 20th April 2012, the monetary authority of Singapore (MAS) offered a loan to the International Monetary Fund (IMF). The applicant Mr. Jeyaretnam contended that the offer of the loan was unconstitutional and illegal. He alleged that the offer of the loan had not satisfied the requirements set out in their Article 144 of the Constitution. Article 144 of their Constitution stated that no guarantee or loan shall be given or raised without approval of parliament or concurrency of the president. Mr. Jeyaretnam sought for:</p> <ol> <li>an order to quash the offer of the loan.</li> <li>an order to prohibit the making of any loan to the IMF unless it was in accordance with Article 144;</li> <li>declarations that a loan to IMF had to satisfy Article 144.</li> </ol> <p> </p> <p>The court refused leave to proceed with Judicial Review. The stated ratio was that the said Article 144 applied only to raising and not giving of loans. The claim failed on substantive merits. For the sake of completeness court went ahead to discuss <em>locus standi</em> and it held that Mr. Jeyaretnam lacked <em>locus standi</em>.</p> <p>The crux of the court’s reasoning was that Mr. Jeyaretnam had not been “personally affected” by the offer of the loan. He was simply relying a public right under Article 144. The court explained that the difference between a private and public right was that the former was held and vindicated by a private individual while the latter was held and vindicated by public authorities. The court then went on to say that where public rights are involved, the applicant has to show special damage and a genuine private interest. Mr. Jeyaretnam could show neither of those hence he had no locus standi.</p> <p> </p> <p>The import of the above decision is that an applicant for Judicial Review could allege violation of his personal rights but not violation of public rights. Only a public body may apply for Judicial Review on grounds of violation of public right. This is because the impact or harm of a violation of a public right will more usually be diffused among all Ugandans.</p> <p> </p> <p>Therefore the applicants in the instant case have not shown an infringement of a personal right and the application must fail. In reaching this finding, I have adopted the ‘personal interest’ or ‘personally affected’ person test (an aggrieved person test) of determining whether or not the applicant for Judicial Review has <em>locus standi </em>to bring such an application.</p> <p> </p> <p>The requirement of a personal right is most consistent with Judicial Review as a vindication of private rights against unlawful acts by public bodies.</p> <p> </p> <p>I wish also to note that Judicial Review does not serve the purpose of upholding good governance. Another elaborate procedure is necessary for this purpose. Therefore, the requirement of personal right cannot be flexibly applied to accommodate governance issues.</p> <p> </p> <p>I therefore uphold and agree with the submission by the respondents that the applicants have no <em>locus standi</em> to bring this application, considering the provisions of Article 42 of the constitution of Uganda which provides that;</p> <p><strong><em>“Any person appearing before any administrative official or body has a right to be treated justly and fairly and shall have a right to apply to a court of law in respect of any administrative decision taken against him or her”</em></strong></p> <p>and the ‘personal interest’ or ‘personally affected’ person test.</p> <p> </p> <p>The courts should refuse <em>locus standi</em> to anyone who appears to be a mere busy body or Mischief Maker as opined by Lord Scarman in <strong><em>IRC Vs National Federation of Self employed and Small business [1982] AC 617.</em></strong> The applicants in this case are simply busy bodies or Mischief Makers.</p> <p> </p> <p>For the reasons I have outlined above, this application must fail and it is accordingly struck out.</p> <p> </p> <p><strong>Issue 2:</strong>           Whether the application raises issues and grounds for Judicial Review</p> <p> </p> <p>This issue goes to the root of the case. The issue of <em>locus standi</em> goes to jurisdiction of this court to entertain this application. Having resolved that the applicants have no <em>locus standi</em>, this court has no jurisdiction to delve into the merits of the case. No finding will consequently be made on this issue.</p> <p> </p> <p><strong>Issue 3:</strong>           whether the applicants are entitled to the remedies in the application.</p> <p> </p> <p>Since the application has been struck out, it follows that no remedies can be granted to the applicants.</p> <p> </p> <p>Consequently for lack of <em>Locus standi</em> on the part of the applicants this application is struck out with costs to the respondents.</p> <p>I so order.</p> <p> </p> <p><strong>Stephen Musota</strong></p> <p><strong>J U D G E</strong></p> <p><strong>04.04.2016</strong></p> <p> </p> <p> </p> <p> </p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-47c09bd99d477cc5a7eb2693f2045030"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/hc-civil-division/2016/26/hc-civil-division-2016-26.docx" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Tue, 17 May 2016 07:59:27 +0000 Eunice Logose 26127 at https://old.ulii.org Wanyama v Busia District Local Government (HCT-04-CV-MA-0225-2011) [2014] UGHCCD 145 (10 July 2014); https://old.ulii.org/ug/judgment/hc-civil-division-uganda/2014/145-0 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/hr" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">HR</a></li><li class="field-item odd"><a href="/tags/equality-law-and-equal-protection-law" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Equality before the law and equal protection of the law</a></li><li class="field-item even"><a href="/tags/have-his-cause-heard-fair-trial" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Have his cause heard (fair trial)</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p align="center"> <strong>THE REPUBLIC OF UGANDA</strong></p> <p align="center"> <strong>IN THE HIGH COURT OF UGANDA</strong></p> <p align="center"> <strong>HOLDEN AT MBALE</strong></p> <p align="center"> &nbsp;</p> <p align="center"> <strong>HCT-04-CV-MA-0225-2011</strong></p> <p> &nbsp;</p> <p> <strong>WANYAMA GEORGE STEPHEN.................................................APPLICANT</strong></p> <p align="center" style="margin-left:.25in;"> <strong>VERSUS</strong></p> <p> <strong>BUSIA DISTRICT LOCAL GOVERNMENT............................RESPONDENT</strong></p> <p align="center" style="margin-left:.25in;"> &nbsp;</p> <p align="center" style="margin-left:.25in;"> <strong>BEFORE: THE HON. MR. JUSTICE HENRY I. KAWESA</strong></p> <p align="center" style="margin-left:.25in;"> &nbsp;</p> <p align="center" style="margin-left:.25in;"> <strong>RULING</strong></p> <p align="center" style="margin-left:.25in;"> &nbsp;</p> <p> This is an application for prerogative order of certiorari to issue against the Respondent quashing a decision to rescind the appointment of the applicant as Accounts Assistant on Probation in the service of the Respondent, Respondent pays substantial damages from date of breach till final determination of the matter in court, and costs be provided for.</p> <p> &nbsp;</p> <p> The application was brought by Notice of Motion under Rule 3(1) 4, 5, 6, and 8 of the Judicature (Judicial Review) Rules 2009.&nbsp; It was supported by the affidavit of the applicant <strong>Wanyama George Stephen</strong>.</p> <p> &nbsp;</p> <p> In his affidavit, the deponent <strong>Wanyama George</strong> averred that; he was appointed on probation as Accounts Assistant by the Respondent&rsquo;s District Service Commission under DSC/Min/255/2011 on 5<sup>th</sup> July 2011.</p> <p> &nbsp;</p> <p> On 27<sup>th</sup> October 2011 or thereabout he was served with a letter rescinding his appointment.&nbsp; He was embarrassed and imperilled by the said acts of the respondent where after he was informed by his lawyers M/s Nagemi &amp; Co. Advocates that the said acts were contrary to established norms and principles of natural justice.</p> <p> &nbsp;</p> <p> The Notice of Motion is premised on five grounds whose import is as deponed by the applicant in his aforesaid affidavit, with prayers for a grant of the orders of certiorari, damages and costs.</p> <p> &nbsp;</p> <p> It is important to point out at this stage that though dully served, the respondent did not file an affidavit in rebuttal.</p> <p> &nbsp;</p> <p> In arguing the case, counsel for applicant addressed the court in the following terms:</p> <p> The applicant was employed by Respondent on probation as an Accounts Assistant.&nbsp; He was later relieved of his duties by Respondent unfairly.&nbsp; It was sought therefore from this court an order of certiorari removing the record and decision of the respondent which refused to lift the decision to terminate his services.&nbsp; Counsel argued that the decision was taken without him being given an opportunity to be heard.&nbsp; He (applicant) held academic certificates that according to him were valid and issued to him by well recognised institutions in Uganda.&nbsp; The action or rescinding the applicant&rsquo;s appointment was done illegally according to counsel.&nbsp; The action to rescind the job offer was an abuse of the powers and authority and was in breach of the Rules of natural justice.&nbsp; He further argued that the decision was taken basing on a non-existent law.</p> <p> &nbsp;</p> <p> He referred the law as it relates to Judicial Review correctly referring to the decided cases of <strong><em>Chief constable of</em></strong> <strong><em>North Wales Police v. Evans (1982) 3 ALLER 141</em></strong>, as quoted Approvingly in <strong><em>Across Africa clearing and forwarding</em></strong> <strong><em>Co. Ltd v. URA &amp; Sarah Kashekwa.&nbsp; H/C CM DV. MISC. 3/2012</em></strong>.</p> <p> &nbsp;</p> <p> He cited Article 42 of the Constitution on the right for fair treatment of individuals appearing before administrative bodies.&nbsp; He also referred to Article 44(c) on the right to a fair hearing.</p> <p> &nbsp;</p> <p> Referring to the Legal Principal laid down in the case of <strong><em>Council of Civil Service Union v. Minister for Civil Service [1985] A.C. 374</em></strong>, he argued that the failure to observe rules for natural justice, and failure to act with procedural fairness towards a person who will be affected by a decision were proof of procedural impropriety.</p> <p> &nbsp;</p> <p> In this case the applicant was never called to clear his name which was found a fatal omission.</p> <p> It was argued by counsel that denying an applicant natural justice renders the decision complained of null and of no effect.</p> <p> &nbsp;</p> <p> In Reply <strong>Lumbe</strong> for Respondents averred that though he filed no affidavit in rebuttal he would respond to the matters of law raised.&nbsp; He argued that the District Service Commission as a creative of Government, recruits and fires civil servants; basing on provisions of the Public Service Act, and Regulations.&nbsp; He cited regulation 38 (a) which empowers the District Service Commission to review its own decision; especially when the DSC discovers an illegality.&nbsp; That it does not provide for calling of the affected party.&nbsp; He argued that the above regulation takes precedence over common law.&nbsp; He also argued against the claim for damages, since applicant was a salary earner and was not entitled to any salary during period he was terminated since he was not &ldquo;working.&rdquo;&nbsp; He faulted the salary scale used to calculate the amount sought as it was the <u>NET</u> salary yet it had to attract taxes.</p> <p> &nbsp;</p> <p> In cross reply, applicant reiterated his earlier position.</p> <p> &nbsp;</p> <p> The issues for determination here are;</p> <ol> <li> Whether there is a cause of action warranting review.</li> <li> Whether applicant is entitled to the reliefs sought.</li> </ol> <p> &nbsp;</p> <p> I resolve the issues as herebelow.</p> <ol> <li> <strong>Whether there is a cause of action warranting review</strong>.</li> </ol> <p> The complainant by appellant is that Respondents unfairly terminated his employment thereby causing him pain, embarrassment and loss.</p> <p> &nbsp;</p> <p> The particulars of the unfairness according to paragraphs 4, 5 and 6 of his affidavit are that:</p> <ol style="list-style-type:lower-roman;"> <li> The decision was reached without him being heard.</li> <li> The decision was reached basing on a non existing law.</li> <li> That the decision infringed his right to a fair hearing, was irregular, illegal and improper.</li> </ol> <p> &nbsp;</p> <p> Basing on the above uncontroverted statements, and explanations thereof by counsel for applicants it&rsquo;s my finding that, the application before me is brought under the provision of Rule 3 (1) (a) (4) (5) and (6) (8) of the Judicature Review Rules 2009.&nbsp; Such an application under Rule 3 can be for an order of certiorari.&nbsp; It&rsquo;s by Notice of Motion under Rule (6); and by affidavit evidence under rules (7) and (10).</p> <p> It was held in the case of <strong><em>SAMWIRI MASSA V. ROSE ACEN HCCA.3/1976</em></strong> that where certain facts are sworn in an affidavit, the burden to deny them is on the other party and if he does not, they are presumed to have been accepted and the deponed need not raise them again but if they are disputed then he has to defend them.</p> <p> &nbsp;</p> <p> The above position of the law when applied to this case shows that, given the fact that Respondent filed no affidavit in rebuttal of the applicant&rsquo;s averments, the affidavit of applicant has proved the fact that he was unfairly terminated without being given a hearing, and basing on a nonexistent law.</p> <p> &nbsp;</p> <p> This then leads me to examine if in being terminated the said Respondents are guilty of the conduct appellant raises in this application.</p> <p> &nbsp;</p> <p> According to the case of <strong><em>FR. FRANCIS BAHIKIRWE MUNTU AND 15 OTHERS VS. KYAMBOGO UNIVERSITY HCMSC. APP.643 OF 2005</em></strong>.&nbsp; <strong>Justice Kasule</strong> held that the right to apply for judicial Review is now Constitutional in Uganda by virtue of Article 42; which empowers anyone appearing before an administrative official or body a right to be treated justly and fairly with a right to apply to a court of law regarding an administrative decision taken against such a one.&nbsp; This right, to a just and fair treatment in administrative decisions cannot be derogated according to Article 44.&nbsp; Referring to <strong><em>CHARLES KABAGAMBE UEB HIGH COURT (KAMPALA) MCS. APP. 928 OF 1999.</em></strong></p> <p> If infringed, it cannot be rectified by inferior laws.</p> <p> &nbsp;</p> <p> This legal position answers <strong>Mr. Lumbe</strong> for respondent&rsquo;s assertion that the Respondent&rsquo;s actions are not subject to review because the Public Service regulations empower them to act without informing the affected party.&nbsp; Suffice to note that he quoted no section of the law, to support his argument; but fatally though, the letter of termination annexed on applicant&rsquo;s pleadings as &lsquo;WGS2&rsquo;, shows that the Respondent&rsquo;s action was based on the &ldquo;Public Service Cap.277,38A and regulations made thereunder.&rdquo;&nbsp; There is no such Act known in the laws of Uganda as &ldquo;cap.277, 38A....&rdquo; There is no justification therefore in <strong>Mr. Lumbe</strong>&rsquo;s assertions that the common law remedy of review cannot be invoked to undo Respondent&rsquo;s action.&nbsp; It&nbsp; is clear that as rightly held in the Kyambogo case above this right is now enshrined in the Constitution under Articles 42, 44, and 50 thereof.</p> <p> &nbsp;</p> <p> Having found as above that appellant was entitled to apply to court for review, this court now has to determine if indeed the Respondents infringed any of his rights as laid out in Articles 42, 44, and 50 of the Constitution.</p> <p> &nbsp;</p> <p> In the case of <strong><em>Fr. F. Bahikirwe Minth v. Kyambogo University</em></strong> (supra).&nbsp; The Judge further held that the grounds a combination or anyone of them that an applicant must satisfy in order to succeed in a Judicial Review application are;</p> <ol style="list-style-type:lower-roman;"> <li> Illegality</li> <li> Irrationality and</li> <li> Procedural impropriety.</li> </ol> <p> &nbsp;</p> <ol style="list-style-type:lower-roman;"> <li> Illegality is when the decision making authority commits an error of law in the process of making a decision.</li> </ol> <p> It has been proved that Respondents quoted and were guided by a nonexistent law dubbed CAP. 277, 38A and regulations made there under.&nbsp; Their decision was therefore illegal.</p> <ol style="list-style-type:lower-roman;"> <li value="2"> Irrationality is when the decision making authority acts so unreasonably that in the eyes of the Court no reasonable authority addressing itself to the facts and law before it would have made such a decision.</li> </ol> <p style="margin-left:27.0pt;"> &nbsp;</p> <ol style="list-style-type:lower-roman;"> <li value="3"> Procedural impropriety is when the decision making authority fails to act fairly in the process of its decision making.&nbsp; It includes failure to observe the basic rules of natural justice or to act with procedural fairness towards one to be affected by the decision.&nbsp; The essence of procedural impropriety is the violation of the Cardinal rule of natural justice.&nbsp; &ldquo;AUDI ALTERAM PARTEM&rdquo;, the right of a party to a cause not to be condemned unheard.&nbsp; See <strong><em>KAMURASI CHARLES V. ACCORD PROPERTIES LTD &amp; OR (Civil Appeal 3 of 1996)</em></strong> quoting with approval R. V. University of Cambridge (1723) where the ratio <em>decidendi</em> is that a decision arrived at in breach of the &ldquo;<em>Audi Alteram Partem</em>&rdquo; rule is void absolutely and of no consequence at all.</li> </ol> <p> &nbsp;</p> <p> This position was restated in Council of <strong><em>Civil Service Union v. Minister for the Civil Service 1985 AC 374</em></strong> held that it&rsquo;s a fundamental principle of natural justice that a decision which affects the interests of any individual should not be taken until that individual has been given an opportunity to state his or her case and to rebut any allegations made against him or her.</p> <p> &nbsp;</p> <p> From evidence on record, the applicant was denied the fundamental right to be heard; which amounts to a denial of natural justice.&nbsp; The overall effect of a denial of natural justice to an aggrieved party renders the decision void and of no effect as was held in the case of <strong><em>Pascal R. Gakyaro v. Civil Aviation Authority CACA 60/2006</em></strong>.</p> <p> &nbsp;</p> <p> I therefore find that applicant has a cause of action, he has proved existence of an illegality and impropriety which renders the decision against him null and void.&nbsp; The issue terminates in the affirmative.</p> <p> &nbsp;</p> <ol> <li value="2"> <strong>Whether applicant is entitled to the reliefs sought</strong></li> </ol> <p style="margin-left:4.5pt;"> The applicant seeks substantial damages equivalent to the upper salary scale due to him per month from the date of breach till the final determination of the matter before court.&nbsp; He prayed for costs of the application.&nbsp; Counsel for applicant prayed in submissions for shs. 8,361,000/= at a rate of shs.267,687/= per month from 26.02.2011.&nbsp; General and aggravated damages of 15 million and 5 million respectively arising from Respondent&rsquo;s breach. He prayed for the costs.</p> <p style="margin-left:4.5pt;"> &nbsp;</p> <p style="margin-left:4.5pt;"> <strong>Lumbe</strong> argued that the applicant is not entitled to the salary refund.&nbsp; He argued that no proof of damages was done.</p> <p style="margin-left:4.5pt;"> &nbsp;</p> <p style="margin-left:4.5pt;"> Rule 8 of S.I 11/2009, recognises the grant of damages if pleaded in the motion; and if court is satisfied that applicant is entitled to the damages.</p> <p style="margin-left:4.5pt;"> The law on damages is that aggravated damages are awarded by the court as compensation for the defendant&rsquo;s objectionable behaviour.&nbsp; On the other hand exemplary damages go beyond compensating for actual loss and are awarded to show the court&rsquo;s disapproval of the defendant&rsquo;s behaviour.</p> <p style="margin-left:4.5pt;"> &nbsp;</p> <p style="margin-left:4.5pt;"> The facts said to establish the grounds for each claim must be stated.&nbsp; (see O. Hare &amp; Hill Civil Litigation, Sweet and Maxwell 10<sup>th</sup> Edition page 227).</p> <p style="margin-left:4.5pt;"> &nbsp;</p> <p style="margin-left:4.5pt;"> From the record the applicant annexed a copy of letter of appointment dated&nbsp; July 05, 2011and annexed as &ldquo;WGSI&rdquo;.&nbsp; The letter shows that his appointment was for a &ldquo;probationary period of 6 months &ldquo;for which he was to earn a salary (26,690,260/= = 3,212,238) U7 upper.&nbsp; His starting salary was shs.2,690,260/= per annum, translating to shs.224,188/= per month.</p> <p style="margin-left:4.5pt;"> &nbsp;</p> <p style="margin-left:4.5pt;"> He was appointed on the 5<sup>th</sup> of July 2011, and was expected to work for six month which would click on 5<sup>th</sup> Jan.2012.&nbsp; however he got terminated on 26<sup>th</sup> October 2011, a period of about 3 months before the expiration of the said probation period of six month.</p> <p style="margin-left:4.5pt;"> &nbsp;</p> <p style="margin-left:4.5pt;"> It is my holding that the contract between the appellant and the Respondent according to the letter of appointment was specifically for six months.&nbsp; Contrary to what applicant&rsquo;s prayed for. Appellant will recover salary lost for 3 months at rate of shs.224,188/=, which totals to shs.672,564/=.&nbsp; He cannot recover the rest of the months because his contract did not cover them.</p> <p style="margin-left:4.5pt;"> &nbsp;</p> <p style="margin-left:4.5pt;"> Appellant prayed for shs.12 million as aggravated damages and shs. 5 millions as exemplary damages.&nbsp; Aggravated damages are awarded to compensate loss occasioned by the defendant&rsquo;s objectionable behaviour.&nbsp; The question here is what other loss, save salary, did the appellant suffer when terminated?&nbsp; Apart from loss of peace, and self esteem among society and fellow employees as alluded to in paragraph 4 of the affidavit of <strong>Wanyama</strong>, I find no other loss.</p> <p style="margin-left:4.5pt;"> &nbsp;</p> <p style="margin-left:4.5pt;"> I will therefore condemn the Respondents to pay compensatory damages for embarrassing the appellant of shs. 2,000,000/= (Two millions) only.</p> <p style="margin-left:4.5pt;"> &nbsp;</p> <p style="margin-left:4.5pt;"> In handling the case of the appellant, there seems to have been a total disregard of procedures and rules of law and natural justice.&nbsp; There is no reason that was advanced why the Respondent terminated the appointment, what findings etc.&nbsp; No hearing was conducted.&nbsp; Appellant was ambushed and his rights violated.&nbsp; This behaviour is the type which calls for an award of exemplary damages to punish the Respondent for his rush, negligent and irrational conduct towards the appellant.&nbsp; Given the circumstances of this case being, aware that the Respondent is a local authority who should build confidence in the public by abiding by the law, constitutions and Natural justice; an award of 3 million (3,000,000/=) shall suffice.</p> <p style="margin-left:4.5pt;"> The applicant in perusing his right in this court incurred costs.&nbsp; He is entitled to the costs of this application.</p> <p style="margin-left:4.5pt;"> &nbsp;</p> <p style="margin-left:4.5pt;"> I find that applicant has satisfied the standard of proof in this application and the application is hereby granted with orders that:-</p> <ol style="list-style-type:lower-alpha;"> <li> A prerogative order of certiorari does issue against the Respondent quashing a decision to rescind, the appointment of Applicant on probation as Accounts Assistant in the service of the Respondent.</li> <li> The Respondent pays to Applicant shs. 2,000,000/= (Two millions) as aggravated damages; and shs. 3,000,000/= (three millions) as exemplary damages.</li> <li> Respondent pays applicant shs. 672,564/= (six hundred seventy two, thousands, five hundred sixty four shillings) in lieu of lost salary.</li> <li> Respondent pays costs of this application to appellant.</li> </ol> <p> &nbsp;</p> <p> I so order.</p> <p align="center"> <strong>Henry I. Kawesa</strong></p> <p align="center"> <strong>JUDGE</strong></p> <p align="center"> <strong>10/07/2014</strong></p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-89aeccab2b399398d79549bd0ba19115"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/hc-civil-division/2014/145/hc-civil-division-2014-145.doc" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Mon, 27 Jul 2015 14:25:05 +0000 Anonymous 19690 at https://old.ulii.org Ojangole & 4 Ors v Attorney General (MISC CAUSE NO. 303 OF 2013) [2014] UGHCCD 58 (14 April 2014); https://old.ulii.org/ug/judgment/hc-civil-division-uganda/2014/58-0 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/hr" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">HR</a></li><li class="field-item odd"><a href="/tags/equality-law-and-equal-protection-law" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Equality before the law and equal protection of the law</a></li><li class="field-item even"><a href="/tags/have-his-cause-heard-fair-trial" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Have his cause heard (fair trial)</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p align="center"> &nbsp;</p> <p align="center"> <strong>Application for judicial review in favour of bank officials who were interdicted following directives from the INSPECTOR General of Government</strong></p> <p align="center"> &nbsp;</p> <p align="center"> <strong>THE REPUBLIC OF UGANDA </strong></p> <p align="center"> <strong>IN THE HIGH COURT OF UGANDA AT KAMPALA</strong></p> <p align="center"> <strong><u>CIVIL DIVISION</u></strong></p> <p align="center"> <strong>MISC CAUSE NO. 303 OF 2013</strong></p> <p align="center"> &nbsp;</p> <p align="center"> <strong>IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW</strong></p> <p> &nbsp;</p> <p> <img height="117" src="file:///C:%5CUsers%5Cjmugala%5CAppData%5CLocal%5CTemp%5Cmsohtmlclip1%5C01%5Cclip_image001.gif" width="36" /><strong>1. OJANGOLE PATRICIA </strong></p> <p> <strong>2. ANDREW MULUBYA</strong></p> <p> <strong>3. DANIEL KAGWA&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; ::::::::::::::::::::::::: APPLICANTS</strong></p> <p> <strong>4. DR. SAMUEL SEJJAKA</strong></p> <p> <strong>5. UGANDA DEVELOPMENT BANK </strong></p> <p align="center"> <strong><em>VERSUS</em></strong></p> <p> <strong>ATTORNEY GENERAL &nbsp; ::::::::::::::::::::::::::::::::::::::::::::::::::::&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; RESPONDENT</strong></p> <p> <strong>Brief facts</strong></p> <p> &nbsp;</p> <p> The five applicants to wit; Patricia Ojangole, Andrew Mulubya, Daniel Kagwa, Dr. Samuel Sejjaka and Uganda Development Bank Limited through their lawyers M/s Ligomarc Advocates filed this application for Judicial Review by way of Notice of Motion under Articles 28, 42, 44 &amp; 50 of the Constitution, S. 38 of Judicature Act, S. 98 of the Civil Procedure Act and rules 3(2) and 6 of Judicature (Judicial Review) Rules 2009 moving this court for orders declaring that:-</p> <ol> <li> &nbsp;</li> </ol> <ol style="list-style-type:lower-roman;"> <li> The Inspector of Government (IGG) misused&nbsp; its discretionary powers when it directed the 5<sup>th</sup> applicant&rsquo;s Board of Directors, whose Chairman is the 4<sup>th</sup> applicant to suspend the 1<sup>st</sup> , 2<sup>nd</sup> and 3<sup>rd</sup> applicant from their positions as employees of the 5<sup>th</sup> applicant.</li> </ol> <p style="margin-left:.75in;"> &nbsp;</p> <ol style="list-style-type:lower-roman;"> <li value="2"> The IGG acted illegally, high handedly, irrationally and unreasonably when it directed the 5<sup>th</sup> applicants Board of Directors to suspend the 1<sup>st</sup> ,2<sup>nd</sup>, and 3<sup>rd</sup> applicants from their employment with the 5<sup>th</sup> applicant without affording them a fair hearing.</li> </ol> <p style="margin-left:.25in;"> &nbsp;</p> <p> The applicants further sought for orders of this court issuing:-</p> <p> &nbsp;</p> <p style="margin-left:.5in;"> (2)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; An order of Certiorari to move to this court to set aside, quash the IGG directive issued on 30<sup>th</sup> &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; July 2013 directing the 4<sup>th</sup> applicant to suspend the 1<sup>st</sup>, 2<sup>nd</sup> and 3<sup>rd</sup> applicant from their employment &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; with the 5<sup>th</sup> applicant.</p> <p style="margin-left:.5in;"> &nbsp;</p> <p style="margin-left:.5in;"> (3)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; An injunction restraining the IGG or any of the respondent&rsquo;s agents from making any further &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; orders directives for the interdiction suspension, termination or removal by any other means the 1<sup>st</sup> &nbsp;&nbsp; to the 4<sup>th</sup> applicant from their respective employment and positions with the 5<sup>th</sup> applicant on the &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; premise of the impugned investigation.</p> <p style="margin-left:.5in;"> &nbsp;</p> <p style="margin-left:.5in;"> (4)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; An order awarding general damages to the applicants for the anguish inconvenience, injury, &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; suffered to the 5<sup>th</sup> applicant&rsquo;s business and the good will due to the respondent&rsquo;s illegal actions &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; against the applicants.</p> <p> &nbsp;</p> <p> The grounds of the application are that:-</p> <ol style="list-style-type:lower-roman;"> <li> The investigations conducted by the IGG out of which the impugned directives has been made were conducted in an oppressive, irrational, vindictive and biased manner.</li> <li> The IGG&rsquo;s directive to suspend the entire Senior Management team of a financial institution will result in significant disruption of the Bank&rsquo;s operations.</li> <li> The implementation of the IGG&rsquo;s directive does not serve the general interest of the public.</li> </ol> <p> &nbsp;</p> <p> <strong>Issues</strong></p> <ol> <li> <em>Whether in the circumstances of this case the applicants are entitled to the remedies sought.</em></li> </ol> <p> &nbsp;</p> <p> <strong>Civil procedure</strong>- Judicature Act- whether by bringing this application under section</p> <p> <strong>Corporate governance</strong> &ndash; whether the IGG has powers to direct the board of Directors to discipline and/or interdict her staff.</p> <p> <strong><em>Employment law</em></strong> &ndash; whether an employ who is under investigations has a right to a fair treatment during the process of investigations.</p> <p> &nbsp;</p> <p> <strong>Judicial review</strong>- grounds for grant of remedies in an application for judicial review</p> <p> <strong>Principles of natural justice</strong>- whether the principles of natural justice must be applied in all situations</p> <p> &nbsp;</p> <p> <strong>Held.</strong></p> <p> &nbsp;</p> <ol> <li> <em>Learned counsel for the applicant submitted to the contrary saying that this application is properly before court and I agree. By virtue of S.3 of the Judicature (Amendment) Act 2002, the original S. 38 of the Judicature Act Cap 13 was substituted with a new S. 38. The said S.3 states that &ldquo;<strong>The Statute is amended by substituting for S. 38 the following new section &ndash; &ldquo;Judicial Review</strong></em><strong><em>&rdquo;. </em></strong><em>In my view if an update is done on the old section by deleting it and replacing it by the new S. 38, that section remains the same. Therefore this application is properly before court.</em></li> <li> <em>In order for one to succeed in an application for Judicial Review the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety. <u>Illegality</u> is when the decision making authority commits an error of law in the process of taking the</em> <em>decision or making the act, the subject of the complaint. Acting without jurisdiction or ultravires or contrary to the provisions of a law or its principles are instances of illegality. <u>Irrationality</u> is when there is such gross unreasonableness in the decision taken or act done that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards. <u>Procedural impropriety</u> is when there is a failure to act fairly on the part of the decision making authority in the process of taking a decision. The unfairness may be in the non-observance of the rules of natural justice or to act with procedural unfairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in</em> a statute or legislative instrument by which such authority exercises jurisdiction to make a decision.</li> <li> <em>Learned counsel for the applicants submitted to the countrary and I agree. Even in cases of criminal investigations, principles of fairness and natural justice must be applied. The argument that the IGG or any criminal investigation agency can conduct partial or weak investigations merely because the victim will be afforded a hearing during the criminal trial lacks merit. Investigation agencies must conduct their investigations with fairness and impartiality. No one has a right to prosecute people any how because they will defend themselves in the trial. This is more so when the alleged offences arise from employer&rsquo;s discretion when managing an institution or when it relates to an employee. Therefore while the 1<sup>st</sup> to the 3<sup>rd</sup> applicants may be heard in their defence to criminal charges against them in a criminal court, the right to a fair hearing is sacrosanct especially for an employee prior to his/her Employer&rsquo;s decision to invoke disciplinary penalties which is enshrined in the employment law and not criminal law.</em></li> <li> <em>I agree with the submissions by learned counsel for the applicants that had the applicants been given a proper chance to explain themselves in the context of fair investigation they would have brought forth the scheme by disgruntled members of staff. For example the unrebutted Mulubya&rsquo;s affidavit revelations in paragraphs 29-32 that the complainant was involved in a scheme to steal confidential information which is being used against the 5<sup>th</sup> applicant would have come out.</em></li> <li> <em>It is now settled that it is a fundamental principle of justice and procedural fairness that no person is to be condemned unless that person has been given prior notice of the allegations made against him or her, and a fair opportunity to be heard.</em></li> <li> <em>From the above celebrated pronouncements it is apparent that the rule of natural justice obliges an adjudicator faced with the task of making a choice between two opposing stories to listen to both sides. He should not base his decision only on hearing one side. He should give equal opportunity to both parties to present their cases or divergent view points. The scales should be held evenly between the parties. It does not matter that the result would be the same</em>.</li> <li> <em>In the instant case I am constraint to find that the applicants were not accorded a fair hearing during the IGG investigations of this case. Even in matters of criminal investigations, whether or not they lead to administrative sanctions, rules of natural justice must be observed and&nbsp; the affected parties must be accorded a fair hearing to state their side of the story in an investigation conducted free of bias. </em></li> <li> <em>The actions of the IGG in this case amounted to procedural impropriety. The applicants were given the impression that what was being investigated was different from what they were arrested for, i.e victimization.</em></li> <li> <em>On whether the IGG acted in an irrational manner in making the decisions in this case, the submission by leaned counsel for the applicants is spot on. It is apparent that the IGG completely ignored the evidence on allegations of fraud involving 54 Billion shillings and opted to swiftly and vigorously pursue the case of victimization of a whistleblower. </em></li> <li> <em>As can be seen in paragraph 33 and annex &lsquo;J&rsquo; to Mulubya&rsquo;s affidavit as well as paragraph 43 and annexture &lsquo;N&rsquo; to Ojangole&rsquo;s affidavit, lines of credits and trainings that had been opened in favor of the Bank were immediately cancelled and/or withheld upon hearing of the applicants arraignment. A bank&rsquo;s business is premised on stability and credibility. </em></li> <li> <em>By insisting on the implementation of the directive which attracted negative publicity to the Bank&rsquo;s executive, the IGG injured the Bank&rsquo;s and public interest which was irrational. </em></li> <li> <em>I also agree with the submission by learned counsel for the applicants that the IGG&rsquo;s directive to the 4<sup>th</sup> and 5<sup>th</sup> applicants were illegal and an abuse of its powers as it seeks to exert influence on the board to exercise its discretionary powers in disciplinary matters in the IGG&rsquo;s favor. The 5<sup>th</sup> applicant is a duly incorporated company and its Human Resource Manual (annexture &lsquo;M&rsquo; to Mr. Sejjaka&rsquo;s affidavit) is implemented by the Board of Directors which is mandated to manage the institution. </em></li> <li> <em>Clearly the directive by the IGG was ultra vires the above provision as there was no recommendation for the suspension from the bodies or persons envisaged in the manual of both the corporate 5<sup>th</sup> applicant and the 4<sup>th</sup> applicant. </em></li> <li> <em>The IGG was in essence exerting pressure and influence on the 4<sup>th</sup> applicant and the Board of Directors of the 5<sup>th</sup> applicant to exercise their discretionary powers through threats to take actions against them if they did not comply with her directive. Obviously such threats are high-handed because disciplinary action against the employees of the 5<sup>th</sup> applicant is the preserve of the board. In modern corporate governance such arrangement ought to be respected.</em></li> </ol> <p style="margin-left:22.5pt;"> &nbsp;</p> <p style="margin-left:22.5pt;"> <em>In view of the procedural defects, irrationalities and illegalities, outlined above, the IGG&rsquo;s directive against the applicants could not be allowed to stand. The same was quashed by way of an order of certiorari. an injunction issued restraining the IGG and any of the respondents&rsquo; agents from making any further orders or directives for the interdiction, suspension, termination of the 1<sup>st</sup> to the 4<sup>th</sup> applicant and/or any director or employee of the 5<sup>th</sup> applicant from their respective employment and positions on the premise of the impugned investigations. </em></p> <p> <em>Consequently this application for judicial review was granted with costs.</em></p> <p> &nbsp;</p> <p> &nbsp;</p> <p> &nbsp;</p> <p> &nbsp;</p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-e45af17f962ed5080c53a254efa73114"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/hc-civil-division/2014/58/hc-civil-division-2014-58.docx" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Mon, 27 Jul 2015 14:24:08 +0000 Anonymous 19545 at https://old.ulii.org Lukwago v Attorney General & Anor (MISC. CAUSE NO. 281 OF 2013) [2013] UGHCCD 94 (12 July 2013); https://old.ulii.org/ug/judgment/hc-civil-division-uganda/2013/94 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/hr" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">HR</a></li><li class="field-item odd"><a href="/tags/equality-law-and-equal-protection-law" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Equality before the law and equal protection of the law</a></li><li class="field-item even"><a href="/tags/have-his-cause-heard-fair-trial" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Have his cause heard (fair trial)</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p align="center"> <strong>THE REPUBLIC OF UGANDA</strong></p> <p align="center"> <strong>IN THE HIGH COURT OF UGANDA</strong></p> <p align="center"> <strong>&nbsp;AT KAMPALA</strong></p> <p align="center"> <strong>(CIVIL DIVISION)</strong></p> <p align="center"> <strong>MISC. CAUSE NO. 281 OF 2013</strong></p> <p align="center"> <strong>IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW ORDERS OF CERTIORARI, PROHIBITION AND INJUNCTION</strong></p> <p align="center"> <strong>AND </strong></p> <p align="center"> <strong>IN THE MATTER OF ATRIBUNAL SET UP BY THE MINISTER RESPONSIBLE FOR KAMPALA TO INVESTIGATE THE PETITION FOR THE REMOVAL OF THE APPLICANT AS LORD MAYOR OF KAMPALA CAPITAL CITY AUTHORITY</strong></p> <p align="center"> &nbsp;</p> <p> LUKWAGO ERIAS</p> <p> LORD MAYOR, KAMPALA</p> <p> CAPITAL CITY AUTHORITY&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;:::::::::::::::::::::::::::&nbsp;&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp; APPLICANT</p> <p align="center"> <strong>VERSUS</strong></p> <ol> <li> THE ATTORNEY GENERAL</li> <li> THE TRIBUNAL INVESTIGATING</li> </ol> <p> A PETITION FOR THE REMOVAL&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;::::::::::::::&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; RESPONDENTS</p> <p> OF THE LORD MAYOR, KAMPALA</p> <p> CAPITAL CITY &nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</p> <p align="center"> &nbsp;</p> <p align="center"> <strong><u>BEFORE:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; THE HON. MR. JUSTICE V.T. ZEHURIKIZE</u></strong></p> <p align="center"> <strong><u>RULING</u></strong></p> <p align="center"> &nbsp;</p> <p> This application by way of Notice of Motion is brought under Section 36 Judicature Act, Rules 3, 6 and 8 of the Judicature (Judicial Review) Rules 2009 for the following orders namely,</p> <p> &nbsp;</p> <ol style="list-style-type: lower-alpha;"> <li> An order of prohibition restraining the Respondents from proceeding with the investigation of the petition for the removal of the Applicant from the office of Lord Mayor.</li> <li> A writ of certiorari quashing the decision of the Tribunal to adopt Rules of procedure that are not provided for by the law and which are unjust.</li> <li> A writ of certiorari quashing the decision of the Tribunal to appoint three none&nbsp; members designated as lead counsel, co-lead counsel and Secretary</li> <li> An injunction restraining the 2<sup>nd</sup> Respondent from proceeding in excess of its jurisdiction and abuse of the Rules of natural Justice.</li> <li> An order of prohibition and stopping the 2<sup>nd</sup> Respondent from continuing to investigate the petition without regulations provided for by law.</li> <li> An injunction restraining Mr. Daniel Rutiba, Mr. Titus Kamya and Mr. Robert Kirunda from acting as members and/or officers of the Tribunal established to investigate the petition for the removal of the Appellant as Lord Mayor of Kampala Capital City.</li> <li> A declaration that the proceedings for the investigation of the petition against the Lord Major are a nullity.&nbsp;</li> <li> A declaration that the conduct of the Respondent in amending the petition containing allegations against the Lord Mayor is ultravires the terms of reference and therefore a nullity.</li> <li> A declaration that the investigation by the Tribunal of a petition not served onto the Applicant as required by law is a nullity.</li> <li> A declaration that the term given to the Applicant by the 2<sup>nd</sup> Respondent to file a defence is unreasonable, unfair and illegal.</li> <li> A declaration that the act of the Tribunal commencing work before taking oath is a nullity and unreasonable.</li> <li> A declaration that the recording of statements from Councilors before the pre-trial process and in the absence of the applicant is unfair, irregular and illegal.</li> <li> An order for the award of general and exemplary damages for the psychological torture, mental anguish and emotional stress suffered by the Applicant.</li> </ol> <p> &nbsp;</p> <p> The grounds for this application are contained in the affirmation of the application but briefly are said to be as follows:</p> <p> &nbsp;</p> <ol> <li> That the Minister received a petition by 16 Councilors of the Authority and acted on it without serving a copy to the Applicant.</li> <li> That Minister acting in the course of his duty appointed a tribunal to investigate allegations against the Applicant without providing for regulations governing its conduct as required by law.</li> <li> That the tribunal appointed three none members to wit, Mr. Dan Rutiba as Lead Counsel, Titus Kamya as Co-Counsel and Mr. Robert Kirunda as Secretary without powers to do so.</li> <li> That the Tribunal went ahead to issue rules without the mandate to do so which act is improper in law and ultravires its powers.</li> <li> That the Tribunal made Rules which deny the Applicant right to effective legal representation.&nbsp;</li> <li> That the tribunal started working in a hurried manner before the members took oath.</li> <li> That the 2<sup>nd</sup> Respondent has threatened to start hearing in unauthorized manner.&nbsp;</li> <li> That the Applicant has been subjected to psychological torture, mental anguish and emotional stress for which the 1<sup>st</sup> Respondent is vicariously liable.&nbsp;</li> <li> The orders sought are necessary for ends of justice to be met.&nbsp;</li> </ol> <p> &nbsp;</p> <p> The application is supported by the affirmation of the Applicant, his supplementary affirmation and further supplementary affirmation.&nbsp; There is an affirmation in rejoinder by one Kiwanuka Abdallah who is one of his Advocates.&nbsp; The Applicant&rsquo;s said affirmation in support of the motion more or less reiterates the grounds of this application.&nbsp; They further spell out the background to the petition against him.&nbsp; They also emphasise the way the tribunal has so far gone about its business, the details of which I will refer to later in this ruling.</p> <p> &nbsp;</p> <p> In reply the Respondents filed affidavits sworn by Frank Tumwebaze, the Minister in charge of the Presidency and Kampala Capital City.&nbsp;</p> <p> &nbsp;</p> <p> There are two affidavits sworn by Robert Kirunda who described himself as the Secretary to the KCCA Tribunal and one by Elisha Bafilawala a senior state Attorney in the Attorney General&rsquo;s Chambers.&nbsp;</p> <p> &nbsp;</p> <p> The gist of Hon. Frank Tumwebaze&rsquo;s affidavit is that on receipt a petition from one third or more of Authority Councilors, he made consultation with the Attorney General in evaluation of the petition.&nbsp; He also consulted the Hon. Chief Justice on constitution of the Tribunal and their subsequent swearing.</p> <p> &nbsp;</p> <p> The affidavit in reply by the said Elisha Bafilawala did not add much to this application.&nbsp; It dwelt mainly on some legal arguments.&nbsp;</p> <p> &nbsp;</p> <p> Mr. Robert Kirunda&rsquo;s affidavit in reply talks about the setting up of the Tribunal which in turn appointed the support staff.&nbsp;</p> <p> &nbsp;</p> <p> It further narrates how the tribunal went about serving the Applicant and that he duly filed his defence to the petition on Tuesday 18<sup>th</sup> June 2013.&nbsp; He contends that the tribunal is acting within its powers.&nbsp;</p> <p> &nbsp;</p> <p> The said Robert Kirunda swore another affidavit which is in reply to the Applicant&rsquo;s supplementary affirmation in support of the motion.</p> <p> &nbsp;</p> <p> Besides some legal arguments he deponed on the proceedings in the tribunal on 17/06/2013 and in particular on how the applicant&rsquo;s Counsel conducted themselves.</p> <p> &nbsp;</p> <p> At the hearing of the application Ms Robinah Rwakojo Commissioner Civil Litigation and Wanyama Kodoli Principal State Attorney appeared for the Respondents.&nbsp; The applicant was represented by Mr. Alaka Caleb as the Lead Counsel, Mr. Medard Lubega Segona, Katumba Chrysestom, Samuel Muyizi and Julius Galisanga.</p> <p> &nbsp;</p> <p> The following issues were agreed upon for determination by Court.</p> <ol> <li> Whether this application is properly before Court</li> <li> Whether the Tribunal was properly established and constituted.</li> <li> Whether the charges before the Tribunal are proper and sustainable.</li> <li> Whether the proceedings in the tribunal are regular.</li> <li> Remedies available to the parties.</li> </ol> <p> &nbsp;</p> <p> Since the 1<sup>st</sup> issue was intended to cater for preliminary objections against the application, Counsel for the Respondents made their submissions on it first so that Counsel for the Applicants could make their reply as they proceed with their submissions on the rest of the issues.&nbsp;</p> <p> &nbsp;</p> <p> The first point of objection according to Ms Robinah Rwakojo is that Judicial Review is not available to a party where there are alternative remedies.&nbsp;</p> <p> &nbsp;</p> <p> It was her view that under Section 12 (20) of the Kampala Capital City Act the applicant has a right of appeal.&nbsp; That this application is pre-emptive and an abuse of the remedy of Judicial Review.</p> <p> &nbsp;</p> <p> She cited <u>Housing Finance Co. Ltd. V the Commissioner General Uganda Revenue Authority Misc. Appli. No. 722 of 2005 </u>and<u> Uganda Group Industries Ltd v URA CS No. 5/2009 to drive home her point</u>.</p> <p> &nbsp;</p> <p> The second objection was that the matter for resolution in this case is similar to the matters in the Constitutional Court between the same parties in the Constitutional Petition No. 28 of 2013 and Misc. Application No. 32/2013.&nbsp;</p> <p> &nbsp;</p> <p> She cited <strong><u>Attorney General V Retired Dr. Col. Kiiza Besigye H.C.&nbsp; Misc. App. No. 733 of 2005</u></strong> to show that the proceedings before this court cannot be continued with in view of the same matters pending before the Constitutional Court.&nbsp;</p> <p> &nbsp;</p> <p> The 3<sup>rd</sup> objection is that it was erroneous to sue the Tribunal.&nbsp; That the Applicant should only have sued the Attorney General under <strong><u>Article 250 (1) &amp; (2)</u></strong> of the Constitution.</p> <p> &nbsp;</p> <p> She cited <strong><u>Peter Apell &amp; 5 Others V the Permanent Secretary Ministry of Lands, Housing and Urban Development Misc. App. No. 78/2009</u></strong>.&nbsp; She also referred to Frank Sebowa V Attorney General.&nbsp; Counsel prayed that the application be dismissed with costs.&nbsp;</p> <p> &nbsp;</p> <p> In reply to the 1<sup>st</sup> objection Mr. Caleb Alaka contended that <strong><em>Section 12 (20)</em></strong> of the Act presupposes that the Lord Mayor is already removed and that is when he can appeal to the High Court which is not the case in this application.</p> <p> &nbsp;</p> <p> He explained that the Applicant is aggrieved by the impropriety of the mechanism put in place to remove him.&nbsp; That the issues raised are in regard to illegalities and violation of rules of natural justice and that the only remedy available is by way of Judicial Review.&nbsp; <strong><u>He cited Magellan Kazibwe V Law Council-Misc. Appl. No. 1 of 2012</u></strong>.</p> <p> &nbsp;</p> <p> On the 2<sup>nd</sup> objection Counsel contended that the matters before the Constitutional Court were withdrawn so that as of now there is no matter similar to this application before any other court.&nbsp;</p> <p> &nbsp;</p> <p> On the last objection regarding the inclusion of the Tribunal as a co-Respondent Counsel contended that this is a contentions matter before the High Court-He cited <strong><u>John Jet Tumwebaze V Makerere University Council and Others Civil Appl. No. 353 of 2005</u></strong> where court held that non Corporate Bodies are amenable to Judicial Review.&nbsp;</p> <p> &nbsp;</p> <p> I have considered submissions by both sides on these preliminary objections.&nbsp; On whether this case should have been brought in this court by way of appeal instead of an application for Judicial Review, Section 12 (20) of Kampala Capital City Act which was relied on by Counsel for the Respondents is quite clear and it states:</p> <p> &nbsp;</p> <p> <strong>&ldquo;(20) A person who is removed as Lord Mayor or Deputy Lord Mayor may appeal to the High Court within twenty one days after a decision is communicated to him or her and the High Court may confirm or revoke the decision to remove him or her and make any order that Court considers just in the matter.&rdquo;</strong></p> <p> &nbsp;</p> <p> It is clear to me that this provision of the Act does not apply to the instant case.&nbsp; The Applicant has not been removed as provided for under section 12 (8) of the Act.</p> <p> In this application, the Applicant contests the propriety of the Constitution of the Tribunal and the regularity of its proceedings.&nbsp; There is no any other course of action he can take except by proceeding by way of Judicial Review.&nbsp; It appears to be the only remedy available to him.</p> <p> &nbsp;</p> <p> The second leg of objection is whether there are similar matters before the Constitutional Court such that this application is barred by Section 6 of the Civil Procedure Act.</p> <p> &nbsp;</p> <p> The evidence on record discloses that Constitutional Petition No. 28 of 2013 and the application made under it in which the matter in issue was substantially the name as the matter in issue in the instant case and between the same parties was withdrawn on 24/06/2013.</p> <p> &nbsp;</p> <p> The provision for consent of all the parties to the petition under rule 16 (4) of the Constitutional Court (Petitions and References) Rules 2005 is for purposes of dealing with the issue of costs.</p> <p> Thus if all the parties to the petition consent to the withdrawal, the petition is dismissed without costs.&nbsp; But if not all the parties consent to the withdrawal of the petition it will stand dismissed with costs to the non consenting parties under sub-rule 5 of rule 16.&nbsp; Failure or omission to obtain consent from the Respondent does not in any way hinder the withdrawal of the petition from being effected.</p> <p> &nbsp;</p> <p> I am of the considered view that upon filing of the Notice of withdrawal, the petition in the constitutional Court was dismissed.&nbsp; The Respondents would only pursue the issue of costs.</p> <p> So when this application came up for hearing on 27/06/2013 there was no more petition or proceedings in the constitutional Court to warrant calling into operation the provisions of Section 6 of the Civil Procedure Act.</p> <p> &nbsp;</p> <p> On whether the 2<sup>nd</sup> Respondent was properly joined in this application, I do agree with Counsel for the Applicant that this issue is a matter of controversy in the High Court.&nbsp; There are conflicting decisions as pointed at by Counsel.&nbsp;</p> <p> &nbsp;</p> <p> In my view I find that any order in Judicial Review is directed at the decision maker.&nbsp; It is the decision making process of the public body or official that is being contested.&nbsp;</p> <p> &nbsp;</p> <p> I think it is good practice to join the decision maker with the Attorney General.&nbsp; This is what was done in the instant case.&nbsp;</p> <p> &nbsp;</p> <p> I do not find any illegality here to warrant the dismissal of the application.</p> <p> &nbsp;</p> <p> All in all I find no merit in the preliminary objections.&nbsp; They are rejected.&nbsp; I will go ahead to consider the application on its merits.</p> <p> &nbsp;</p> <p> <strong><em><u>Whether the Tribunal was properly established and constituted.</u></em></strong></p> <p> It was contended for the Applicant that the Authority is not fully constituted in accordance with the provisions of Section 6 of Kampala Capital City Act (hereinafter referred to as the Act)</p> <p> They pointed out that Councilors representing the professional bodies mentioned under paragraph (g) of subsection 1 of Section 6 of the Act have not been elected.&nbsp; They would be four in number.</p> <p> &nbsp;</p> <p> That since the Authority is not fully constituted and it is not capable of acting under Sction12 of the Act to remove the Lord Mayor.&nbsp;</p> <p> It was argued that the law requires that at least 1/3 of all the members of the Authority shall sign the petition to the Minister for the removal of the Lord Mayor and that the resolution to remove the Lord Mayor has to be supported by not less than two thirds majority of all the members of the Authority.</p> <p> &nbsp;</p> <p> That in absence of a fully constituted Authority the above two steps for the removal of the applicant cannot be legally undertaken.</p> <p> &nbsp;</p> <p> It was argued that the Minister could not act on a petition emanating from some members of the Authority which is not fully constituted.&nbsp; Hence the Tribunal was not properly established and constituted.&nbsp;</p> <p> Reference was made to <strong><u>Constitutional Petition No. 46 of 2011 and Constitutional reference No. 54 of 2011 Hon. Sam Kuteesa and 2 others V. Attorney General</u></strong> on the need for Public bodies being fully constituted as prescribed by law.&nbsp;</p> <p> &nbsp;</p> <p> It is contended that before appointing a Tribunal the Minister has to first evaluate the petition and contesting himself that there are sufficient grounds to do so.&nbsp; That he cannot reach this decision unless he has heard from both sides.&nbsp;</p> <p> &nbsp;</p> <p> That the Applicant should have been given a copy of the petition to enable him make his reply upon which the Minister would find whether he is satisfied with the grounds before appointing the Tribunal.</p> <p> &nbsp;</p> <p> That since this was not done the Tribunal was not properly established and constituted.&nbsp;</p> <p> &nbsp;</p> <p> Another forceful argument is that when the Attorney General was consulted by the Minister in evaluation of the petition, he found all the grounds in the petition had no merit.&nbsp; That in view of this the Minister should not have appointed the Tribunal contrary to the Attorney General&rsquo;s opinion which is binding.</p> <p> &nbsp;</p> <p> It was further pointed out that it was illegal to the Tribunal to include another ground which was not originally in the petition simply because the Attorney General opined that it was the possible ground.</p> <p> &nbsp;</p> <p> It is also contended that the Tribunal was not properly appointed in absence of a statutory instrument duly published in the Gazette which would be judicially noticed.&nbsp; That merely announcing the Tribunal has no force of law and consequently the Tribunal was not properly constituted.</p> <p> &nbsp;</p> <p> It was further submitted that the Tribunal appointed other three persons namely the Lead Counsel, Co-Lead Counsel and Secretary without powers to do so.</p> <p> &nbsp;</p> <p> That since these three persons have legal and executive powers, that makes them members of the tribunal when they were not appointed by the Minister.&nbsp; That for this reason also, the tribunal is not properly constituted.&nbsp;</p> <p> &nbsp;</p> <p> Hon. Lubega Segona emphasised that the Minister erred in appointing a tribunal in absence of Annextures accompanying the petition as required under Section 12 (3) (b) of the Act.</p> <p> &nbsp;</p> <p> Counsel attacked what the 2<sup>nd</sup> Respondent treats as terms of reference.&nbsp; He argued that there is nothing to show that it is an official document because it is not signed, dated nor does it show who authored it.&nbsp; That the terms of reference should have been gazetted.&nbsp;</p> <p> &nbsp;</p> <p> He argued that the Tribunal had no power to make the rules, as there is no Act of Parliament which empowers the Tribunal to make them.</p> <p> &nbsp;</p> <p> He referred court to the Provisions of article 79 (2) of the Constitution to forty his point that it is only the Minister who could make these rules under Section 82 of the Kampala Capital City Act.</p> <p> &nbsp;</p> <p> In reply Mr. Wanyama Kadoli for the Respondents submitted that the Tribunal is a creature of the law, under Section12 (5) of the Act.</p> <p> He contended that the absence of Councilors representing professional bodies envisaged under Section 6 (1) (g) cannot and does not amount to the authority not being fully constituted.&nbsp;</p> <p> &nbsp;</p> <p> She relied on rule 2 of the 4<sup>th</sup> schedule to the Act which provides that the quorum for a meeting of the Authority shall be one half of all members of the Authority.</p> <p> &nbsp;</p> <p> She also referred to Section 30 of the Interpretation Act, which I find irrelevant to this application.</p> <p> &nbsp;</p> <p> On the argument that there is no instrument for the appointment of the Tribunal Counsel submitted that Section 12 (5) of the Act does not make it a condition that the Minister must have statutory Instrument appointing members of the Tribunal.</p> <p> &nbsp;</p> <p> He went further to argue that Section 82 of the Act is not mandatory and that subsection 2 of Section 82 enumerates areas where a Statutory Instrument may be necessary but that the Tribunal in issue is not one of them.</p> <p> &nbsp;</p> <p> It was his view that the Tribunal was deliberately left out because of the nature of the requirements under Section 12 (5) of the Act where upon the receipt of the petition the Minister has to evaluate it in consultation with the Attorney General and if satisfied that there are sufficient grounds appoint the Tribunal within 21 days after receipt f the petition.</p> <p> That for this reason the section did not provide for gazetting and publication of members of the tribunal.</p> <p> &nbsp;</p> <p> On the Attorney General&rsquo;s opinion Counsel contended that there is nowhere in his evaluation did the Attorney General tell the Minister to stop the process.&nbsp; He contended that evaluation of the Petition is the work of the Minister only that he has to do it in consultation with the Attorney General, which he did.</p> <p> &nbsp;</p> <p> He further contended that under Section 12 (5) of the Act the Attorney General has no power to direct the Minister on whether or not to evaluate the petition but that he has power under article 119 of the Constitution to advise.&nbsp;</p> <p> &nbsp;</p> <p> On whether the Applicant was entitled to a hearing before the Minister at the time of evaluating the petition, Mr. Wanyama Kodoli was of the view that since the Minister is not exercising Judicial or quasi-judicial functions the Applicant has no right of a hearing at that stage.&nbsp; <strong><u>Counsel cited DOTT Services Ltd v Attorney General and Auditor General Misc. Appl. No. 125 of 2009 and Peter Apell &amp; 5 Others V the Permanent Secretary Ministry of Lands, Housing and Urban Development Misc. Appl. No. 78 of 2009</u></strong> to illustrate his argument that not all administrative decisions require the Applicants to be heard before a simple and straight forward decisions are made.</p> <p> &nbsp;</p> <p> Counsel concluded by saying that in the instant case the Applicant did not prove the right which was violated in his capacity as a Lord Mayor.</p> <p> &nbsp;</p> <p> On the issue of the appointments made by the Tribunal, Counsel contended that these are not members of the Tribunal but support staff to assist the Tribunal in execution of their duties.</p> <p> &nbsp;</p> <p> On what oath the support staff took, Counsel contended that which ever oath they took that court cannot invalidate the holding of their respective offices.&nbsp; He referred court to Section 43 of the Interpretation Act regarding deviation from form.&nbsp;</p> <p> &nbsp;</p> <p> In conclusion Counsel asserted that the Tribunal was lawfully established.</p> <p> &nbsp;</p> <p> I have carefully considered submissions by Counsel. In order to resolve this issue I will consider each complaint/argument as presented by Counsel for the Applicant.</p> <p> &nbsp;</p> <p> <strong><em><u>Constitution of the Authority</u></em></strong></p> <p> It was argued for the Applicant that the Authority is not fully constituted and for that reason it is not capable of initiating the petition for his removal and subsequently pass the necessary resolution.</p> <p> &nbsp;</p> <p> The composition of the Authority is provided for under Section 6 of the Act.&nbsp; It consists of the Lord Mayor, Deputy Lord Mayor, and such number of Councilors as stated in paragraphs c, d, e, f, and g of subsection 1 of the said section.</p> <p> &nbsp;</p> <p> Paragraph (g) in particular provides for the election of one Councilor representing each of the following professional bodies namely;</p> <p> &nbsp;</p> <ol style="list-style-type: lower-roman;"> <li> Uganda Institution of Professional Engineers</li> <li> Uganda Society of Architects</li> <li> Uganda Medical Association and</li> <li> Uganda Law Society.</li> </ol> <p> &nbsp;</p> <p> It is not in dispute that these Councilors have not been elected as required under Section 13 (3) of the Act.</p> <p> &nbsp;</p> <p> Section 12 (3) of the Act Provides, inter alia, that for purposes of removing the Lord Mayor or Deputy Lord Mayor a petition in writing signed by not less than one third of all the members of the Authority shall be submitted to the Minister stating that the members intend to pass a resolution of the Authority to remove the Lord Mayor, Deputy Lord Mayor and setting out the particulars of the charge supported by the necessary documents where applicable.</p> <p> &nbsp;</p> <p> Subsection 1 of Section 12 provides that any of the above said officials may be removed from office by the Authority by resolution supported by not less than two thirds majority of all the members of the Authority on any of the grounds which are set out under this subsection.</p> <p> &nbsp;</p> <p> I am inclined to agree with Counsel for the Applicant that the Authority is fully constituted of it consists of all the members as provided for under section 6 of the Act.</p> <p> &nbsp;</p> <p> In other words, it is only after all the Councilors have been elected composed of members provided for under Section 6 that one can talk of a fully constituted Authority capable of transacting business where the participation of all the members is required by the Act.</p> <p> &nbsp;</p> <p> The one third or two thirds majority required under section 12 cannot be calculated against the number of Councilors so far elected.&nbsp; It must be as against all the members of the authority as prescribed under Section 6 of the Act.&nbsp; It is not disputed that presently the authority is composed of 30 Councilors.&nbsp; They would be 34 if the four Councilors representing the said professional bodies had been elected.</p> <p> &nbsp;</p> <p> Failure to elect the four Councilors rendered the Authority not finally constituted and they are not capable of transacting business in which all the members of the authority are statutorily required.</p> <p> &nbsp;</p> <p> But this court is alive to the fact that the Authority has been transacting business and taking decisions when it is not fully constituted as required by law.&nbsp;</p> <p> &nbsp;</p> <p> Such acts done and decision so far taken cannot be declared a nullity in view of the decision in <strong><u>Hon. Sam Kuteesa and 2 others (supra)</u></strong>.</p> <p> &nbsp;</p> <p> In that case the constitutional Court found that the Inspectorate of Government was not properly constituted in absence of the two Deputies.&nbsp; The Inspector General of Government alone could not commence prosecution against any one after the Inspectorate was not legally constituted.</p> <p> &nbsp;</p> <p> But mindful of the fact that in the past criminal prosecution had been done and completed, and to ensure that there is no disruptive effect in the administration of justice system the court held that its decision would only be applied prospectively as from the date of delivery of their Judgment.</p> <p> &nbsp;</p> <p> In the same spirit and following the above authority the decision of this court that the Authority is not capable of legally transacting any business where all the members of the authority are required will be applied prospectively from the date of delivery of this ruling to avoid any disruption in the activities of the Authority.&nbsp;</p> <p> &nbsp;</p> <p> Further, judicial review is a discretionary remedy; which must be exercised judiciously.&nbsp; Court cannot issue an order nullifying all the acts and decisions the Authority has done for the last two years or so.&nbsp;</p> <p> &nbsp;</p> <p> There must be on-going projects or activities which have been undertaken by the authority, just as there were on-going prosecutions by the IGG in the Kuteesa case.&nbsp; It would be an improper use of court&rsquo;s discretion of such projects, decisions or activities were to be halted simply because the Authority was not fully constituted when they were undertaken.</p> <p> &nbsp;</p> <p> Court cannot use its discretion where the result would be to unleash chaos, confusion, disruption of activities or inevitable legal consequences to the Authority.</p> <p> &nbsp;</p> <p> What this means in respect of this case is that the petition which was originated by 1/3 of the members of the Authority cannot be faulted.&nbsp;</p> <p> &nbsp;</p> <p> Similarly the appointment of the tribunal by the Minister cannot be challenged on the ground that the Authority was not fully constituted and its proceedings cannot be halted on that ground.</p> <p> &nbsp;</p> <p> But if the Tribunal determines that there is a prima-facie case for the removal of the Applicant, the authority cannot proceed to pass the resolution for his removal because the Act requires such resolution to be supported by the votes of not less than two thirds of all members of the Authority.</p> <p> &nbsp;</p> <p> This being a new stage in the process of removing the Applicant, the Authority must be fully constituted in accordance with the provisions of Section 6 of the Act to be legally capable of passing the required resolution.&nbsp;</p> <p> &nbsp;</p> <p> <br clear="all" /> &nbsp;</p> <p> &nbsp;</p> <p> Before I take leave of this point, I wish to state that once the Authority is fully constituted, its decision or other acts cannot be affected simply due to the absence of any member or due to the fall of any vacancy.</p> <p> &nbsp;</p> <p> <strong><em><u>Evaluation of the Petition without hearing the Applicant</u></em></strong></p> <p> It was contended that the Tribunal was not properly established since the Minister in evaluating the petition did not hear the Applicant&rsquo;s side of the story.&nbsp;</p> <p> &nbsp;</p> <p> Section 12 (5) provides to the effect that upon&nbsp; receipt of the petition for the removal of the Lord Mayor, as in this case, he shall evaluate the petition in calculation with the Attorney General and if satisfied that there are sufficient grounds, constitute a tribunal in consultation with the Chief Justice to investigate the allegations.</p> <p> &nbsp;</p> <p> I am inclined to agree with counsel for the Respondent that the process of evaluating the petition and getting satisfied that there are sufficient grounds to warrant constituting the Tribunal is purely administrative and the Minister is not required to hold a hearing where the Applicant is required to state his side of the case.</p> <p> &nbsp;</p> <p> The Act provides for the hearing of both sides during the investigations by the Tribunal.</p> <p> &nbsp;</p> <p> The Minister would be acting ultra vires and in excess of his powers if he embarked on a hearing of both sides.&nbsp; His duty is to process the petition in consultation with the Attorney General before deciding whether or not to constitute the Tribunal.</p> <p> &nbsp;</p> <p> <strong><em><u>The opinion of the Attorney General in evaluation of the Petition</u></em></strong></p> <p> Section 12 (5) of the Act provides:</p> <p> &ldquo;(5) the Minister shall evaluate the petition in consultation with the Attorney General and if satisfied that there are sufficient grounds for doing so, shall, within twenty one days after receipt of the petition, constitute a tribunal consisting of a Judge of the High Court or a person qualified to be appointed a Judge of the High Court as Chairperson and two other persons all of whom shall be appointed by the Minister in consultation with the Chief Justice, to investigate the allegations.&rdquo;</p> <p> &nbsp;</p> <p> In evaluating the petition the Minister did indeed consult the Attorney General.&nbsp;</p> <p> By letter of 22/5/2013 the Attorney General wrote to the Minister (Hon. Frank Tumwebaze Minister for presidency in office of the President ) in which he stated the relevant law mainly the meaning of Section 12 of the Act.</p> <p> &nbsp;</p> <p> The Attorney General went ahead to analyse each of the grounds in the petition pointing out evidential weaknesses in support of the petition.&nbsp; It was his view that the Petitioners had not assembled the required evidence to back the allegations.&nbsp;</p> <p> &nbsp;</p> <p> In view of the above it was contended for the Applicant that the Minister should not have gone ahead to constitute and appoint the Tribunal.&nbsp; That the opinion of the Attorney General was binding on him.&nbsp; That for this reason the Tribunal was not properly constituted.</p> <p> &nbsp;</p> <p> According to Section 12 (5) which I have set out above, when the Minister receives the Petition he has to do the following within 21 days.</p> <ol style="list-style-type: lower-roman;"> <li> He has to evaluate the Petition in consultation with the Attorney General.&nbsp; My understanding of this is that he has to study and analyse the petition and in so doing seek the assistance of the Attorney General.</li> <li> Then he has to satisfy himself that there are sufficient grounds to constitute a Tribunal to investigate the allegations.</li> </ol> <p> &nbsp;</p> <p> Here it is clear to me that the decision to constitute a Tribunal lies with the Minister alone and not together with the Attorney General.</p> <p> In fact in his letter to the Chief Justice (<strong><em>annexture &ldquo;A&rdquo; to his affidavit in reply) the Minister correctly appreciated the legal position when stated in part&rdquo;</em></strong> pursuant to section 12 (5) of the Kampala Capital City Act, 2010, I have evaluated the said petition in consultation with the Attorney General and satisfied myself that there do exist grounds for constituting a Tribunal to investigate the allegations.&rdquo;</p> <p> &nbsp;</p> <p> The Attorney General was entitled to make a critique of the petition and make the comments that he did.</p> <p> &nbsp;</p> <p> For instance he observed that the petitioners had not assembled enough evidence to back the allegations and stated that they would probably have done better with the technical assistance in assembling the evidence.</p> <p> &nbsp;</p> <p> Whether technical assistance was sought or not is not part of their proceedings.&nbsp; What is clear is that having done what he was legally obliged to do the Minister was satisfied there are grounds for constituting a tribunal to investigate the allegations.</p> <p> &nbsp;</p> <p> What is also clear is that the Attorney General did not advise against the establishment of the tribunal to investigate the allegations.&nbsp; He knew very well that having made his observation the power and/or discretion to constitute the Tribunal lay with the Minister.&nbsp;</p> <p> &nbsp;</p> <p> Whether the Minister was correct to find that the ground did exist to warrant constituting the Tribunal is a matter outside the ambit of judicial review.&nbsp; This court cannot delve to the merits or demerits of the petition.&nbsp;</p> <p> &nbsp;</p> <p> In exercising its supervisory powers under judicial review court is not concerned with the merits or demerits of the decision in issue but with the decision making process- <strong><u>see Kulwo Joseph Andrew and 2 Others v. Attorney General and 6 Others Misc. case No. 106 of 2010</u></strong> where Justice Y. Bamwine as he then was followed the British Celebrated case of <strong><u>Chief Constable of North Wales Police V Evans 1982.&nbsp; UK HL 10, (1982) 3 ALL E.R 141</u></strong>.</p> <p> &nbsp;</p> <p> The purpose of judicial review is to ensure that lower tribunals, public bodies and officers act in accordance with the law, justly and with fairness.&nbsp; That the machinery of government works properly.</p> <p> &nbsp;</p> <p> It is not the duty of the court to substitute its decision with that of the decision making body.&nbsp; It is not sitting in its appellate jurisdiction.&nbsp; If did it would be accused of usurping the powers of these bodies or officers under the guise of judicial review.&nbsp;</p> <p> &nbsp;</p> <p> In the instant case there is evidence that the Minister followed the proper procedure.&nbsp; After receiving the petition he evaluated it in consultation with the Attorney General.&nbsp; Having been satisfied that there are sufficient grounds to constitute the Tribunal, he appointed the same in consultation with the Chief Justice.&nbsp;</p> <p> &nbsp;</p> <p> He did all this within the statutory period of 21 days.&nbsp; As I have already stated, whether in fact there are sufficient grounds for this petition or not is a matter this court cannot go into.&nbsp; That issue will be determined by the Tribunal investigating the allegations in the petition.</p> <p> &nbsp;</p> <p> Apart from a critique of the petition by the Attorney General I do not see any binding advice or opinion which the Minister disobeyed to warrant any interference with his decision to constitute and appoint the Tribunal.</p> <p> &nbsp;</p> <p> <strong><em><u>Absence of a statutory instrument establishing the Tribunal.</u></em></strong></p> <p> I have already summarized arguments by both sides on this point in my ruling.</p> <p> &nbsp;</p> <p> I am of the view that it is good practice to issue a statutory instrument when appointing a tribunal of this nature giving them not only terms of reference but also rules of procedure.&nbsp; There is no evidence in this case that any statutory instrument was made and dully gazetted.</p> <p> &nbsp;</p> <p> The question that arises is whether the tribunal in issue is a nullity abinitio as urged for the applicant because no statutory instrument was made, gazette and published to be judicially noticed?</p> <p> &nbsp;</p> <p> My view is that this Tribunal cannot be equated to a Commission of Inquiry under the Commissions of Inquiry&rsquo;s Act (Cap 166) where under Section 15 the Commission has to be published in the gazette.</p> <p> &nbsp;</p> <p> The tribunal in this case is appointed under Section12 (5) whose sole objective is to investigate the allegations contained in the petition.&nbsp; That is the scope of its operation and terms of reference.&nbsp; While, as I have said, it would be good practice to issue a statutory instrument to that effect, failure to do so cannot affect the validity of the Tribunal which was dully constituted and appointed by the Minister in consultation with the Chief Justice, with a clear mandate to execute.</p> <p> The direction to make regulations under Section 82 (1) of the Act for the better carrying into effect of the provisions of the Act is discretionary and does not apply in every operationalisation of the provisions of the Act.</p> <p> &nbsp;</p> <p> In the instant case I am inclined to agree with the learned Principal State Attorney that given the time limit set out under section 12 (5) of the Act it would not be practical for the Minister to go through the formalities of establishing the Tribunal by issuing and publishing a statutory instrument.</p> <p> &nbsp;</p> <p> After receipt of the petition the Minister has only 21 days within which to evaluate the petition in consultation with the Attorney General and then inform himself whether there are sufficient grounds for the petition.&nbsp; He has then to constitute the tribunal and appoint them in consultation with the Chief Justice.&nbsp;</p> <p> &nbsp;</p> <p> It is clear to me that the hurry in appointing the tribunal complained about by the Applicant is actually dictated by the statute.&nbsp; The Minister had no option but to act in a hurry to beat the deadline.&nbsp;</p> <p> &nbsp;</p> <p> I find that failure to issue a statutory instrument is a mere technicality which does not affect the validity of the Tribunal appointed under Section 12 (5) of the Act where such requirement is not expressly provided.</p> <p> &nbsp;</p> <p> Related to the above argument is the contention that the Tribunal has no rules of procedure and that it appointed some three other people without any legal power to do so.</p> <p> &nbsp;</p> <p> To avoid unnecessary repetition I will consider the above matters when resolving the fourth issue as agreed upon by Counsel.&nbsp; I will for now move to the 3<sup>rd</sup> issue.</p> <p> &nbsp;</p> <p> <strong><em><u>Whether the charges before the Tribunal are proper and sustainable</u></em></strong></p> <p> Hon. Lubega Segona Counsel for the Applicant contended that the petition was not competent because it lacked Annextures as required by Section 12 (3) (b) of the Act.&nbsp; He referred this court to a letter written by the Attorney General to the Minister fro presidency-Hon. Frank Tumwebaze, in which he drew the Minister&rsquo;s attention to the fact that the petition refers to a number of Annextures which were not attached to the same.&nbsp; He requested the Minister to send the annextures to enable him evaluate the petition.&nbsp; The letter dated 21/05/2013 is annexture &ldquo;K&rdquo; to the application.</p> <p> &nbsp;</p> <p> Counsel went on to argue that even by 17/6/2013 after the Tribunal had been appointed the Annextures were still missing.&nbsp; That the Minister established the Tribunal on 5/6/2013 in absence of annexture accompanying the petition.&nbsp;</p> <p> &nbsp;</p> <p> The other complaint against the petition is that the Minister and the Tribunal amended the charges to include one which was not raised by the petitioners in their petition.&nbsp; This was the charge of failure to convene two consecutive meeting of the Authority without reasonable cause.&nbsp;</p> <p> &nbsp;</p> <p> On the latter complaint I am in agreement with Counsel that neither the Minister nor the tribunal can amend the petition by introducing a new charge in the petition.&nbsp; That would not be a ground for removal of the Applicant signed by not less than one third of all the members of the Authority submitted to the Minister within the meaning of Section 12 (3) of the Act.</p> <p> &nbsp;</p> <p> The alleged amendment by including a new ground appears to have been prompted by the Attorney General&rsquo;s observation when evaluating the petition.</p> <p> &nbsp;</p> <p> I am not persuaded by the arguments by Counsel for the Respondent that the challenge against the charges would be made to the Tribunal.</p> <p> &nbsp;</p> <p> I find that this court in exercise of its supervisory powers is entitled to consider such an issue.</p> <p> &nbsp;</p> <p> Although the proceedings of the tribunal are not before this court, since the allegation of the inclusion of a new charge or ground is not challenged this court will take a decision on the matter.</p> <p> &nbsp;</p> <p> This court directs that any ground or charge which was not part of the petition submitted to the Minister must be struck out leaving the tribunal to investigate only the allegations made in the petition.</p> <p> &nbsp;</p> <p> Needless to say that the inclusion of the new ground does not invalidate the whole petition.&nbsp;</p> <p> &nbsp;</p> <p> On the issue of Annextures to the petition I wish to state that such documents are some of the pieces of evidence in support of the petition.</p> <p> &nbsp;</p> <p> It is noteworthy that it was on 21/05/2013 when the Attorney General requested for the Annextures to enable him evaluate the petition.</p> <p> &nbsp;</p> <p> It appears they were immediately availed to him because by 22/05/2013 he was in a position to make a thorough evaluation of the petition and communicate to the Minister by letter of the same date.</p> <p> &nbsp;</p> <p> I also observe that by his letter of 17/06/2013 referred to by Counsel for the Applicant, Mr. Robert Kirunda Secretary to the Tribunal communicated to the Applicant that the required annextures were contained in the documents served upon his team.&nbsp; He pointed out that the tribunal had not had access to the replay of the WBS Television Morning Flavour Programme.</p> <p> &nbsp;</p> <p> In his affidavit in reply of 25/06/2013 paragraph 13 he averred that on 18/06/2013 the Applicant&rsquo;s Lawyers were served with the WBS recording.&nbsp; This shows that the Applicant is in possession of the required Annextures.</p> <p> &nbsp;</p> <p> There is nothing in the Act to the effect that all the evidence must be available at the time of submitting the Petition to the Minister.</p> <p> &nbsp;</p> <p> Instead the Tribunal is mandated to investigate the allegations in the petition.&nbsp; There is no doubt that in the process the tribunal will receive more evidence in support of the grounds in the petition.&nbsp; It may also get evidence exonerating the Lord Mayor.&nbsp; That is the purpose of an investigation.&nbsp; What is important is that the Applicant is afforded ample opportunity to controvert all the evidence brought against him,</p> <p> &nbsp;</p> <p> A thorough and fair investigation cannot be limited only to the Annextures accompanying the petition.&nbsp; There are no legal or logical reasons to fetter the tribunal&rsquo;s hands in conducting an investigation into the allegations contained in the petition.</p> <p> &nbsp;</p> <p> Apart from the inclusion of a new ground which must be struck out I find that the rest of the charges are properly before the tribunal and capable of being investigated by it.&nbsp;</p> <p> &nbsp;</p> <p> <strong><u>Fourth issue is whether the proceedings in the Tribunal are regular</u></strong></p> <p> The Applicant&rsquo;s complaint under this issue revolve around lack of statutory instruments, terms of reference, rules of procedure and the appointment of Robert Kirunda and 2 others.&nbsp;</p> <p> &nbsp;</p> <p> I have already held that though desirable, failure to make regulations by way of statutory instrument did not affect the validity of the constitution and appointment of the Tribunal.</p> <p> &nbsp;</p> <p> Section 12 (5) of the Act is sufficient for the procedure to establish the tribunal.&nbsp; It also provide for the clear mandate of the Tribunal which is to investigate the allegations contained in the Petition.&nbsp;&nbsp; This is the basic term of reference.&nbsp; The appointment of the Secretary, the lead Counsel and the co-Lead Counsel and other support staff is an administrative arrangement to enable the tribunal execute its mandate.</p> <p> &nbsp;</p> <p> In my view, what is of significance is whether their roles help the Tribunal in having a fair and just process rather than whether they took any oath and if so which oath they took.</p> <p> &nbsp;</p> <p> Contrary to Counsel for the Applicant&rsquo;s submission, there is nothing to show any of the three officers is part of the Tribunal as members thereof.</p> <p> &nbsp;</p> <p> Where no rules of procedure are prescribed as in this case, the investigating body must adopt such a procedure that will enable it observe the principles of natural justice which are so fundamental in any decision making process.&nbsp; This was the view of this court in <strong><u>Hon. Justice Anup singh Choudry v Attorney General H. C. Misc. Appli. No. 4 of 2012 </u></strong>which was brought to my attention by Counsel for the Applicant.</p> <p> &nbsp;</p> <p> The reason for this is that the right to a fair hearing is entrenched in our constitution.</p> <p> &nbsp;</p> <p> Article 44 (c) provides that notwithstanding anything in the constitution, there shall be no derogation from the enjoyment of the right to fair hearing.</p> <p> &nbsp;</p> <p> Article 42 further provides that any person appearing before any administrative official or body has a right to be treated justly and fairly.</p> <p> &nbsp;</p> <p> In short the right to fair hearing and fair treatment is so fundamental that it must be observed at all times in decision making process even if no procedure is prescribed.</p> <p> &nbsp;</p> <p> The KCCA Act envisages the observance of the principles of natural justice.&nbsp; This is clearly brought out under subsection 7 of section 12 of the Act thus;</p> <p> &ldquo;(7) The Lord Mayor or Deputy Lord Mayor is entitled to appear at the proceedings of the tribunal and to be represented by a Lawyer or other expert or person of his or her choice.&rdquo;</p> <p> &nbsp;</p> <p> This means that in investigating the allegation the Tribunal acts as a quasi judicial body and must afford the Lord Mayor the right of a fair hearing.&nbsp;</p> <p> The appearance of the Lord Mayor or his Lawyer at the proceedings of the tribunal is not cosmetic.&nbsp; He is entitled not only to present his side of the case but to also cross-examine any witness giving evidence contrary to his interest.</p> <p> &nbsp;</p> <p> But it must be noted, however, this Tribunal is an investigative body and not an ordinary court to be bogged down with formal rules of procedure.&nbsp; Technicalities of procedures can be avoided without sacrificing the right to be heard.</p> <p> &nbsp;</p> <p> It is the tribunal which is in charge of the proceedings and not the parties.&nbsp; It is for that reason entitled to control the hearing including cross-examination to avoid unnecessary delays.</p> <p> &nbsp;</p> <p> According to the supplementary affidavit by Robert Kirunda of 26/06/2013 paragraph 18, he avers that the rules provide for cross-examination of witnesses.</p> <p> &nbsp;</p> <p> In paragraph 23 he states that the Applicant has been given opportunity to apply for leave to cross-examine witnesses including recalling of any witnesses who have already testified.</p> <p> &nbsp;</p> <p> On the other hand affidavits and affirmation filed by the Applicant paint a chaotic picture of the proceedings of 20/06/2013 where his Advocates stormed out of the Tribunal and he was also not able to proceed owing to the manner he was brought to the tribunal by police.</p> <p> &nbsp;</p> <p> It appears since then the Applicant has not appeared at the proceedings of the Tribunal either in person or through his lawyers.</p> <p> &nbsp;</p> <p> That being the case the Applicant is entitled if he so requests, to be availed the evidence of all witnesses who have so far testified in his absence for his study and decision whether to have them recalled for cross-examination.</p> <p> &nbsp;</p> <p> According to annexture &ldquo;F&rdquo; to Robert Kirunda&rsquo;s said supplementary affidavit in reply, I note that the Applicant has been served with witness statement and Annextures being documents which were tendered at the tribunal proceedings on 20/06/2013.</p> <p> &nbsp;</p> <p> Similar process can be undertaken for the rest of the tribunal proceedings since 20/06/2013 to enable the applicant prepare his defence and even cross-examine any witnesses he finds necessary to do so.&nbsp; The Applicant is entitled to have any witness who testified in his absence to be recalled for cross-examination.</p> <p> &nbsp;</p> <p> But at all times the Tribunal must remain in control of the proceedings to avoid an abuse of the process calculated to delay or derail its work, bearing in mind always that the Applicant gets a fair hearing and fair treatment.&nbsp;</p> <p> &nbsp;</p> <p> <strong><em><u>Remedies available</u></em></strong></p> <p> The Applicant sought orders for prohibition, certiorari and injunction.</p> <p> &nbsp;</p> <p> From what I have tried to discuss above I do not find any reason for an order prohibiting the Respondent from proceeding and or from continuing with investigations of the Petition for the removal of the Applicant from the Office of the Lord Mayor.</p> <p> &nbsp;</p> <p> He sought an order of certiorari quashing the decision of the Tribunal to adopt rules of procedure that are not provided by the law and which are unjust.</p> <p> &nbsp;</p> <p> I have already found in effect that in absence of any statutory instrument this tribunal has no prescribed rules of procedure.&nbsp; In that case it must simply observe the principles of nature furtive to ensure that the Applicant is afforded a fair hearing and is fairly treated; bearing in mind that this is not an ordinary court process.</p> <p> &nbsp;</p> <p> Another major order sought is a declaration that the proceedings for the investigation of the petition against the Lord Mayor are a nullity.&nbsp;</p> <p> &nbsp;</p> <p> From my Ruling it is clear that there is no foundation for such an order.</p> <p> &nbsp;</p> <p> I will however declare that the additional ground which was not in the petition that was submitted to the Minister is not sustainable and is hereby struck out.&nbsp; An investigation on it is not tenable.</p> <p> &nbsp;</p> <p> The other orders sought are hinged on the main ones and are equaled disallowed.</p> <p> &nbsp;</p> <p> I must emphasize that if at the conclusion of its investigations the tribunal finds that there is a prima facie case for the removal of the Applicant, the Authority cannot proceed to pass a resolution for his removal unless it is fully constituted as provided for under Section 6 of the Act.</p> <p> &nbsp;</p> <p> All in all the application is dismissed, but in the circumstances of this matter I will make no order as to costs.</p> <p> &nbsp;</p> <p> &nbsp;</p> <p> &nbsp;</p> <p align="center"> <strong>V.T Zehurikize</strong></p> <p align="center"> <strong><em>JUDGE</em></strong></p> <p> &nbsp;</p> <p> Ruling delivered this 12<sup>th</sup> day of July 2013.</p> <p> &nbsp;</p> <p> &nbsp;</p> <p> &nbsp;</p> <p align="center"> &hellip;&hellip;&hellip;&hellip;&hellip;&hellip;&hellip;&hellip;&hellip;&hellip;&hellip;..</p> <p align="center"> <strong><em>DEPUTY REGISTRAR</em></strong></p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-7c9fa71c16b7945e70d7243d26c23394"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/hc-civil-division/2013/94/hc-civil-division-2013-94.docx" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Mon, 27 Jul 2015 14:23:29 +0000 Anonymous 19429 at https://old.ulii.org Nabagesera & 3 ors v Attorney General & Anor (MISC. CAUSE NO.O33 OF 2012) [2014] UGHCCD 85 (24 June 2014); https://old.ulii.org/ug/judgment/high-court-civil-division/2014/85-0 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/hr" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">HR</a></li><li class="field-item odd"><a href="/tags/express-and-disseminate-opinion" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Express and disseminate opinion</a></li><li class="field-item even"><a href="/tags/equality-law-and-equal-protection-law" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Equality before the law and equal protection of the law</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p><strong>THE REPUBLIC OF UGANDA</strong></p> <p><strong>IN THE HIGH COURT OF UGANDA AT KAMPALA</strong></p> <p><strong><u>CIVIL DIVISION</u></strong></p> <p><strong>MISC. CAUSE NO.O33 OF 2012</strong></p> <p>&nbsp;</p> <p><strong>1. JACQUELINE KASHA NABAGESERA</strong></p> <p><strong>2. FRANK MUGISHA</strong></p> <p><strong>3. JULIAN PEPE ONZIEMA&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;:::::::::::::::::&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; APPLICANT</strong></p> <p><strong>4. GEOFREY OGWARO</strong></p> <p><em>VERSUS</em></p> <p><strong>1. ATTORNEY GENERAL </strong></p> <p><strong>2. REV. FR SIMON LOKODO :::::::::::::::::::::::::::&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; RESPONDENTS</strong></p> <p>&nbsp;</p> <p><strong>BEFORE: <u>HON. JUSTICE STEPHEN MUSOTA</u></strong></p> <p>&nbsp;</p> <p class="rtecenter"><strong>RULING</strong></p> <p>Four applicants to wit; Jacqueline Kasha Nabagesera, Frank Mugisha, Julian Pepe Onziema and Geoffrey Ogwaro represented by M/s Onyango &amp; Co. Advocates filed this application by way of Notice of Motion under Article 50 (1) of the Constitution and O. 52 rr 1 &amp; 3 of the Civil Procedure Rules against the Attorney General and Rev. Fr. Simon Lokodo as respondents represented by the Attorney General’s Chambers. The applicants sought for orders from this court that:-</p> <ol style="list-style-type:lower-alpha"> <li>The action of the second respondent on 14.02.2012 to order the closing of an ongoing workshop that the applicants organized and/or had been invited to and were attending constituted an infringement of the applicants and other participants’ right to freedom of assembly guaranteed under Article 29 (1)(d) of the Constitution.</li> <li>The action of the second respondent to order the closing of the workshop constituted an infringement of the applicants and the participants’ right to freedom of speech and expression guaranteed under Article 29 (1)(a) of the Constitution.</li> <li>The action of the second respondent to order the closing of the workshop constituted an infringement of the applicants and other participants’ right to participate in peaceful activities to influence policies of government through civil organizations guaranteed under Article 38 (2) of the Constitution.</li> <li>The action of the second respondent to order the closing of the workshop while no other workshop taking place at the same time, at the same venue was arbitrary and unjustified and constituted an infringement of the applicants’ and other participants’ rights to equal treatment before the law under Article 21 of the Constitution.</li> <li>The first respondent is vicariously responsible for the actions of the second respondent since it was carried out in his official capacity as Minister for Ethics and Integrity.</li> <li>The costs of the application be granted against the respondent.</li> </ol> <p>The application is supported by the affidavits of the first, second and fourth applicant which set out the brief grounds as follows:-</p> <ol style="list-style-type:lower-roman"> <li>That the first applicant was the organizer while the second, third and forth applicant were invited to attend the workshop on planning, Advocacy and leadership organized by Freedom and Roam Uganda (FARUG) at Imperial Resort Beach Hotel Entebbe scheduled for between 9<sup>th</sup> February 2012 until 16<sup>th</sup> February 2012.</li> <li>The said workshop was to train and equip participants from various walks of life with project planning, advocacy, human rights, leadership and business skills.</li> <li>The second respondent in his official capacity as Minister for Ethics and Integrity appeared at the workshop venue on 14<sup>th</sup> February 2012 and on allegation that the workshop was an illegal gathering of Homosexuals ordered the workshop closed and immediate dispersal of the applicants and other participants.</li> <li>No other workshop taking place at Imperial Resort beach Hotel Entebbe on 14<sup>th</sup> February 2012 was ordered closed.</li> <li>The closure of the workshop and the dispersal of the applicants and other participants was unjustified and constituted an infringement of their fundamental rights on freedoms.</li> </ol> <p>&nbsp;</p> <p>Several affidavits in reply were filed deponed to by the second respondent, Rev. Fr. Simon Lokodo, George Oundo and one Abola Nicholas. The deponements are so elaborate that it is cumbersome to reproduce all of them in this ruling. I will however make reference to the same in making my ruling.</p> <p>&nbsp;</p> <p>The agreed issues for resolution were as follows:</p> <ol> <li>Whether by organizing and attending the workshop at Imperial Resort Beach Hotel, the applicants were engaging in illegal and unlawful activities.</li> <li>Whether the applicants’ Constitutional rights were unlawfully infringed when the second respondent closed down their workshop.</li> <li>Whether the second respondent can be sued in his individual capacity.</li> <li>Whether the applicants are entitled to the remedies prayed for.</li> </ol> <p>&nbsp;</p> <p>This case proceeded on the basis of affidavit evidence in support and those against the application. Court allowed respective counsel to file written submissions in support of their respective cases.</p> <p>&nbsp;</p> <p>I have considered the application as a whole and the law applicable and the able respective submissions by learned counsel. I will go ahead and resolve each issue as argued starting with issue 1.</p> <p>&nbsp;</p> <p><u>Whether by organizing and attending the workshop at Imperial Resort Beach Hotel, the applicants were engaging in illegal or unlawful activities.</u></p> <p>&nbsp;</p> <p>In his submissions, Mr. Onyango learned counsel for the applicants argued that S. 148 of the Penal Code Act only prohibits homosexual sex acts. That there are no related offences which are committed by aspersion, suggestion, innuendo or apparent association. Learned counsel argued that the affidavit of the Minister and Mr. Abola don’t show that the workshop participants committed any criminal offence as described under S. 145 of the Penal Code Act. Further that since the participants were not found engaging in homosexual acts per se nor did they show intent to commit the acts, there was no crime committed under S. 145 of the Penal Code Act and therefore the closure of the workshop could not be construed as a legitimate attempt to prevent the commission of a criminal offence.</p> <p>&nbsp;</p> <p>Ms Patricia Mutesi, learned counsel for the respondent submitted to the contrary that the Minister’s affidavit states that he established that the workshop which was attended by homosexuals aimed to encourage participants to engage in and promote same sex practices. Further that it aimed to equip them with individual and organizational knowledge and skills to further their objective of promoting same sex practices. That the Minister closed the workshop on the ground that the applicants were using it to promote and encourage homosexual practices which was unacceptable and unjustifiable in a country whose laws prohibit such practices.</p> <p>&nbsp;</p> <p>As rightly submitted by Ms Patricia Mutesi, it is a principle of criminal law that in addition to the substantive offence, it is also prohibited to directly or indirectly encourage or assist the commission of the offence or to conspire with others to commit it regardless of whether the offence is actually committed or not. In the laws of Uganda, S. 145 of the Penal Code Act prohibits homosexual acts. It provides that:-</p> <p><strong>“145. &nbsp;Un natural offences </strong></p> <p><strong>Any<em> person who-</em></strong></p> <p><strong><em>a) has carnal knowledge of any person against the order of nature;</em></strong></p> <p><strong><em>&nbsp;b) has carnal knowledge of an animal; or </em></strong></p> <p><strong><em>c) permits a male person to have carnal knowledge of him or her against the order of nature commits an offence and is liable to imprisonment for life.”</em></strong></p> <p>&nbsp;</p> <p>Further to this, S.21 prohibits incitement where a person incites another person to commit an offence whether or not the offence is committed. It provides that such an offence is punishable by imprisonment for ten years. In the same vein, S. 390 and 391 of the Penal Code Act Laws of Uganda prohibit conspiracy where a person conspires with another to commit an offence. S. 392 (f) prohibits conspiracy to effect any unlawful purpose e.g promotion of an illegality. With the above provisions of the law which are still in force, I agree with the submission by learned counsel for the respondent that the applicants’ promotion of prohibited homosexual acts in the impugned workshop would thus amount to incitement to commit homosexual acts and conspiracy to effect an unlawful purpose which is unlawful.</p> <p>&nbsp;</p> <p>The applicants relied on the finding of the court in <strong><u>Kasha Jacqueline Vs Rolling Stone Limited &amp; another, Misc. Cause 163 of 2010</u></strong> to argue that:-</p> <p><strong><em>“the scope of S. 145 of the Penal Code Act is narrower than gaysim generally. That one has to commit an act under S. 145 to be regarded as a criminal”.</em></strong></p> <p>&nbsp;</p> <p>I agree with learned counsel for the respondent that the above case is distinguishable as it involved determining whether the publication of a news Article identifying persons perceived to be homosexuals and calling for them to be hanged, violated their rights. The cited interpretation in relation to the scope of S. 145 of the Penal Code Act was limited to whether in the absence of evidence of homosexual acts, persons “perceived” as homosexuals had committed any offence which would warrant such treatment by the Newspaper. In fact the above case did not involve any allegation of promotion of homosexual practices. Therefore the trial judge in that case was never called upon to consider other sections of the Penal Code Act relating to promotion or incitement of any offence. After consideration of the affidavit evidence on record, there is ample proof that the first, second and third applicants were members of the lesbian, gay, bisexual, transgender and intersex (LGBTI) community in Uganda which &nbsp;encourages same sex practices among homosexuals. This proof can be found in the affidavit of the Minister, the second respondent. The Minister’s affidavit was not rebutted by any of the applicants thus leaving the following averments intact that:</p> <ul> <li>The first, second and third applicants’ organizations (FARUG and SMUG) have previously organized workshops targeting homosexuals which were organized with LGBT organizations which encourage homosexuals and support or fund their projects. (see paragraph 5 of the affidavit).</li> </ul> <p>&nbsp;</p> <ul> <li>In these workshops, homosexual participants were taught ‘Human Rights’ and Advocacy that it is a human right for persons to practice sex with members of the same sex and encouraged to develop self esteem and confidence about the practices. They were encouraged to train other homosexuals and to conceal the objectives of training activities from the public and law enforcement officers because the practices are prohibited by the law. (see para 6)</li> </ul> <p>&nbsp;</p> <ul> <li>Further to this, the Minister depones that participants in the workshops were trained to become more adept in same sex practices by distribution of same sex practice literature and information, and training on same sex among homosexuals. In paragraph 7, the Minister reveals that the participants were trained to similarly train other homosexuals and strengthen their LGBT organizations to achieve the objective of encouraging and supporting homosexuals. According to paragraph 8, participants were also encouraged to train other homosexuals in ‘Human Rights and Advocacy training’, ‘project planning’, ‘Advocacy and leadership’ with the aim to equipping homosexuals with the confidence, knowledge and skills to conduct and promote their same sex practice.</li> </ul> <p>&nbsp;</p> <p>The evidence adduced by the second respondent was minutely corroborated by that of George Oundo, a former associate of the applicant. This evidence was equally not rebutted by the applicants. He avers that the first, second and third applicants are admitted homosexuals and head or belong to LGBT organizations that is FARUG and SMUG which conduct activities aimed at encouraging, supporting and promoting same sex practices among homosexuals in Uganda. This revelation is contained in Oundo’s affidavit paragraphs 3, 4, 5 and 7.</p> <p>&nbsp;</p> <p>In paragraph 17 thereof Mr. Oundo reveals that the applicants’ organizations and a Swedish LGBT organization (RFSL) participated in project activities which encouraged homosexuals to accept, continue and improve their same sex practices including distributing homosexual literature/videos, illustrating same sex techniques; training homosexual youths to safely engage in the same sex practices by distributing condoms and literature on safe gay sex which would effectively help them implement the project activities. (see para 20) According to Mr. Oundo in paragraph 21, workshops’ participants were encouraged to share experiences of their homosexual practices.</p> <p>&nbsp;</p> <p>Although the first applicant swore an affidavit in rejoinder, it only had general denials and was restricted to FARUG. There was no rebuttal of Mr. Oundo’s detailed evidence that FARUG’s project activities encouraged same sex and conducted training in project planning, advocacy and leadership with the aim of equipping homosexuals and members of LGBT organizations to effectively carry out such activities. All these activities amount to direct or indirect promotion of same sex practices.</p> <p>&nbsp;</p> <p>Available evidence shows that the applicants’ closed workshop was aimed at encouraging persons to engage in and or promote same sex practices in future. The organizers and participants were not willing to open their workshop activities to scrutiny. According to the affidavit of the Minister and Mr. Abola, unlike other workshops, the applicants’ workshop was not displayed at the hotel. The first applicant refused Mr. Abola a government official to observe the workshop proceedings and by the time the Minister arrived to observe the proceedings, they had been halted and the participants were having a break. In view of the law cited above, it was reasonable and justified for the Minister to conclude that this workshop was engaging in direct and indirect promotion of same sex practices which is prohibited by S. 145 and 21 of the Penal Code Act.</p> <p>&nbsp;</p> <p>I agree with learned counsel for the respondents that the Minister acted in public interest of Uganda to protect public moral standards which fall under his docket.</p> <p>&nbsp;</p> <p>Issue 2:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <u>whether the applicants’ Constitutional rights were unlawfully &nbsp;infringed when the second respondent closed the workshop.</u></p> <p>&nbsp;</p> <p>The applicants allege that the Minister’s actions violated their rights to freedom of expression, political participation, freedom of association, assembly and equality before the law.</p> <p>&nbsp;</p> <p>On the other hand, the Minister states that he closed the workshop on the basis that it was aimed at encouraging and promoting homosexual practices which was unacceptable and unjustifiable in a country whose laws prohibit such practices. That his action was undertaken in public interest.</p> <p>&nbsp;</p> <p>As rightly submitted by learned counsel for the respondent, Article 43 of the Constitution permits limitations of human rights in the public interest. Under the Constitution, these rights are guaranteed to all persons. However they don’t fall within the category of non- derogable rights under Article 44. Therefore the exercise of such rights can be limited in certain instances.</p> <p>Article 43 of the Constitution states that:</p> <p><strong>“<em>1. In the</em> <em>enjoyment of the rights and freedoms prescribed in this chapter, no person shall prejudice the…….. rights and freedom of others or public interest. </em></strong></p> <p><strong><em>2. Public interest under this Article shall not permit </em></strong></p> <p><strong><em>a) Political persecution </em></strong></p> <p><strong><em>b) Detention without trial </em></strong></p> <p><strong><em>c) any limitation………. that is beyond what is acceptable and demonstrably justifiable in a free/ democratic society, or what is provided in this Constitution.”</em></strong></p> <p>&nbsp;</p> <p>My reading of the above provisions persuades me that it recognizes that the exercise of individual rights can be validly restricted in the interest of the wider public as long as the restriction does not amount to political persecution and is justifiable, acceptable in a free democratic society. Whereas the applicants were exercising their rights of expression, association, assembly etc, in so doing, they were promoting prohibited acts which amounted to action prejudicial to public interest. Promotion of morals is widely recognized as a legitimate aspect of public interest which can justify restrictions.</p> <p>International Human Rights Instruments reflect this aspect. For example Article 27 of the African Charter of Human and Peoples’ Rights (ACHPR) states that:-</p> <p><strong>“<em>The rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and common interest.”</em> </strong></p> <p>&nbsp;</p> <p>ACHPR also recognizes that:-</p> <p><strong><em>“17(3). The promotion and protection of morals and traditional values recognized by the community shall be the duty of the state. </em></strong></p> <p><strong><em>29(7) ………. every individual has a duty to preserve and strengthen positive African cultural values and to contribute to the moral well being of society”. </em></strong></p> <p>&nbsp;</p> <p>Under our domestic law, the heading to Chapter XIV of the Penal Code Act is “Offences Against Morality.” Under this chapter, several acts including homosexual acts are prohibited because they are contrary to Ugandan moral values.</p> <p>&nbsp;</p> <p>I agree with Ms Patricia Mutesi that criminal law by its very nature is concerned with public interest and aims at safeguarding it. Indeed crime is recognized as an unlawful act against the public which is punished by the state for being contrary to order, peace and the well being of society. Because criminal law forbids and aims at prevention of conduct which threatens or inflicts substantial harm to the individuals or public interest, it can also create valid restrictions on the exercise of rights. Thus in order to maintain the well being of society, criminal law can restrict unlawful exercise of human rights.</p> <p>&nbsp;</p> <p>In relation to the complaints by the applicants herein, their promotion of prohibited acts by the workshop organizers was unlawful, since such promotion in itself is prohibited by law as amounting to incitement and conspiracy to effect unlawful purposes. Since the applicants in the exercise of their rights acted in a manner prohibited by law, it was not a valid exercise of these rights. It was also prejudicial to public interest.</p> <p>&nbsp;</p> <p>In trying to show that the applicants’ rights were violated, learned counsel for the applicant cited the provisions of international Human Rights Instruments to elaborate the scope of those rights. The applicants complained that the Minister’s actions violated their right to freedom of expression. Freedom of expression is guaranteed under Article 29 (1)(a) of the Constitution.</p> <p>&nbsp;</p> <p>However, as I have stated herein above, under Article 43 this right is restricted in public interest. It is trite law that any rights must be exercised within or according to the existing law. The exercise of rights may be restricted by law itself. Therefore any expression is restricted in as far as it must be exercised according to the law. This is recognized under Article 9 (2) of the African Charter on Human and Peoples rights (ACHPR) which states that:</p> <p><strong><em>individuals have the right to express and disseminate opinion <u>within the law</u> </em></strong></p> <p>&nbsp;</p> <p>In order to prove that the applicants’ freedom of expression was violated, learned counsel for the applicants referred to the case of <strong><em><u>Law office Ghazi Suleiman Vs Sudan II (2003) AHRLR (ACHPR 2003)</u></em></strong> in which Mr. Ghazi was restricted from gathering to discuss (and promote) human rights. The state of Sudan claimed that it had restricted his speech because it was a threat to national security and public order and thus prejudicial to the public interest.</p> <p>&nbsp;</p> <p>The African Commission on Human Rights held that under Article 9 of the ACPHR, expression has to be exercised within the law although learned counsel for the applicants omitted to state this. It found that there was no evidence that Mr. Ghazi had acted outside the law since, his speech always advocated for peaceful action and had never caused any unrest. In other words Mr. Ghazi in exercising his speech and discussing human rights had acted within the law.</p> <p>&nbsp;</p> <p>I therefore agree with Ms Patricia Mutesi that Ghazi’s case is distinguishable from the applicant’s case since Mr. Ghazi did not exercise his freedom of expression to promote any illegal acts. On the contrary the applicants herein were using the pretext of training in human rights advocacy to promote homosexual acts which are prohibited by the Ugandan laws.</p> <p>&nbsp;</p> <p>According to the applicants the workshop was intended to train participants on how to advocate their human rights, build leadership and project planning skill as well as share experiences. However, there was no rebuttal of the evidence of the Minister and George Oundo that the training actually aimed at equipping participants to lead organizations which support homosexual acts and plan and implement projects which promote homosexual acts. I am therefore not persuaded on a balance of probabilities that the closing of the workshop stopped participants from discussing human rights and developmental topics thus violating their right to freedom of expression.</p> <p>&nbsp;</p> <p>Learned counsel for the applicant submitted that even if the Hon. Lokodo’s assertion that the applicants were gathered to promote homosexuality is correct, such a proposition would not justify any infringement on the right to freely express one’s opinion. Learned counsel cited the holding in <strong><u>Charles Onyango Obbo and anor Vs Attorney General SC Constitutional Appeal No.2 of 2002</u></strong> that a person’s expression is not excluded from Constitutional protection simply because it is thought by others to be erroneous, controversial or unpleasant.</p> <p>&nbsp;</p> <p>In my considered view, protection of ‘unpleasant’ or controversial, false or wrong speech does not extend to protecting the expression that promotes illegal acts which in itself is prohibited and in fact amount to the offence of incitement or conspiracy to incite which I have alluded to earlier in this ruling.</p> <p>&nbsp;</p> <p>Regarding the right to political participation, learned counsel for the applicants relied on Article 38(2) of the Constitution which guarantees persons the right to participate in peaceful activities to influence the policies of government through civic organizations. Whereas I doubt the relevancy of this submission to the case under consideration, like I have held above, the exercise of this right necessitates a conduct in accordance with the law. If the exercise of this right is contrary to the law then it becomes prejudicial to the public interest and there can be a valid restriction on the exercise of the right under Article 43.</p> <p>&nbsp;</p> <p>Learned counsel for the applicants further cited Article 7 of the <strong><u>UN Declaration on Protect of Human Rights </u></strong>which guarantees everyone the right individually and in association with others to develop and discuss new human rights ideas and to advocate their acceptance. The same declaration however recognizes that people can be restricted in these activities in accordance with the law. Article 3 thereof and relied upon by learned counsel for the respondents brings this exception clearly out. It states that:-</p> <p><strong>“<em>domestic law is the framework within which human rights are enjoyed and in which human rights promotion activities should be conducted.” </em></strong></p> <p>&nbsp;</p> <p>Regarding freedom of association and assembly, learned counsel for the applicant cited Article 29 (1)(d) and (e) of the Constitution which guarantees these rights. But as rightly put by learned counsel for the respondents these rights also have to have the corresponding duty and requirement that persons exercising them must act in accordance with the law. This is equally provided for under Article 10 of the ACHPR relied upon by both learned counsel.</p> <p>&nbsp;</p> <p>Learned counsel for the applicants cited the case of <strong><u>Civil Liberties Organizations Vs Nigeria, 101/93 [8<sup>th</sup> Annual Activity Report 1994 – 1995]</u></strong> in which the commission considered whether the composition and powers of a new governing body for the Nigerian Bar Association violated <em>inter alia</em> Nigerian Lawyers’ right to freedom of association under Article 10 of the African Charter. This case related to Government interference with the formation of associations and restrictions on the capacity of citizens to join associations. The African Commission held that that the requirement that the majority of the membership of the Nigerian Bar Association be nominated by the Nigerian Government instead of the lawyers themselves was an interference with the right to free association of the Bar Association.</p> <p>&nbsp;</p> <p>The instant case is distinguishable from the cited authority by learned counsel for the applicants. In the case under consideration, the Minister’s action was based on the agenda and activities of LGBT organizations in promoting homosexual acts. There was no interference in the formation of these organizations, their existence or membership. Their activities were only restricted when it was established that they were using the workshop to promote prohibited and illegal acts.</p> <p>&nbsp;</p> <p>Learned counsel for the applicant cited Article 1 of the <strong><u>UN General Assembly declaration on promotion of Human Rights</u></strong> which states that persons shall have the right individually or in association with others to discuss and advocate for new human rights ideas and principles. But as I have already noted in this ruling, Article 3 of the same declaration provides that domestic law is the framework within which human rights are enjoyed and all activities shall be conducted.</p> <p>&nbsp;</p> <p>Regarding freedom of assembly, learned counsel for the applicant cited a case of <strong><u>Baczowski &amp; ors versus Poland (Application No. 1543 of 06).</u></strong> He supplied a summary of the courts decision but he made a lenghtly quotation of the court decision which I could not readily verify. However, the European court of Human Rights held that refusal to allow pro-homosexuals group to assemble and promote their homosexual lifestyle was a violation of right of assembly.</p> <p>&nbsp;</p> <p>I however agree with the submission by learned counsel for the respondent that at the time of the said decision Poland had no law which prohibited homosexual acts since 1932 when they were recognized by the law. The cited case is therefore distinguishable from the instant because by the time of determining that case, homosexuals were legally entitled to promote their practices and there was no illegality arising from the exercise of their right to assemble. <em>(Refer to the Respondents’ Document 1 on LGBT Rights in Poland</em>)</p> <p>&nbsp;</p> <p>The European court of Human Rights correctly held that the refusal to grant them a permit to assemble could not be justified in the public interest and amounted to an unlawful restriction of their right to assemble.</p> <p>&nbsp;</p> <p>Learned counsel for the applicant argued that the approach taken by the European Court on Human Rights is analogous and is a compelling basis for interpreting Article 29 of the Uganda Constitution. I don’t agree with this preposition. That court’s approach should be viewed in the context that there is no member country of the European community which prohibits homosexual acts which reflects the moral standards of Europe.</p> <p>As rightly submitted by learned counsel for the respondents, Ugandan circumstances are different because homosexual acts are offences against morality and culture and their promotion is prohibited by law making it prejudicial to public interest. Uganda and Europe have different laws and moral values and accordingly define their public interests differently. As rightly put by learned counsel for the respondents, Uganda is not signatory to the <u>European Convention on Human Rights</u>. Therefore its precedents are not binding but must be read in a manner consistent with Ugandan laws and norms. The suggestion by learned counsel for the applicants that the European standard should be applied while considering Uganda’s obligation under the African Charter to which it is signatory is misconceived. Article 61 of the Charter states that the African Commission is obliged to take into consideration international conventions which lay down rules expressly recognized by Member States of the OAU. It must also consider African practices consistent with international norms, customs generally accepted as law and principles of law recognized by African states as well as legal precedents and doctrine. As rightly argued by the respondents, international jurisprudence is considered as a legal precedent depending on whether the cited rules and legal principles are expressly recognized by African states and reflect African practices. This court takes note that the recognition of homosexuals as a Minority whose acts are legitimately protected is not a principle of law and norm generally recognized by all African states nor are homosexual acts recognized as an accepted African practice. Its promotion is an unlawful exercise of the right to association and assembly which is prejudicial to Uganda’s public interest.</p> <p>&nbsp;</p> <p>Learned counsel for the applicant also submitted regarding equality under the law saying that the actions of the second respondent treated the applicants differently from other Ugandans who were holding workshops at the same hotel on the same day and thus violated the right to equal treatment before and under the law. He cited Article 21 (1) of the Constitution which provides that:-</p> <p><strong>“<em>all persons are equal before and under the law in all spheres of political, economic, social and cultural life and in every other respect and shall enjoy equal protection of the law.”</em> </strong></p> <p>&nbsp;</p> <p>Learned counsel also cited the case of <strong><u>Thomas Kwoyelo Vs Attorney General Constitutional Reference No. 36 of 2011</u></strong> where the applicant had been denied amnesty yet the same had been granted to 24,066 other people. Court held that the DPP had not given any objective and reasonable explanation why he did not sanction the amnesty application of the applicant which was inconsistent with Article 21 (1) of the Constitution.</p> <p>&nbsp;</p> <p>It is my considered view and I agree with learned counsel for the respondent that the ordinary meaning of persons being equal before and ‘under the law’ in that Article is that all persons must always be equal subject to the existing law even when exercising their rights. Where the law prohibits homosexual acts and persons knowingly promote those acts, they are acting contrary to the law. Such persons cannot allege that the actions taken to prevent their breach of the law amount to denial of ‘equal protection’ of the law because the law abiding people were not equally restricted. There is no evidence adduced by the applicants to show that the other workshops which were not stopped also organized and were attended by homosexuals and members of LGBT organizations or that they had the same agenda.</p> <p>&nbsp;</p> <p>Since the applicants were engaging in the promotion of acts contrary to the law which law has not yet been declared unconstitutional they could not enjoy the same protection of the law persons who were acting in accordance with the law were enjoying. Had the applicants acted otherwise their workshop would have proceeded like the other workshops. The case of Thomas Kwoyelo (supra) is distinguishable because what he sought is provided by the law. The court found that it was discriminatory that Kwoyelo was denied amnesty which had been granted to other rebels for the same acts of rebellion and under the same Act and the DPP had not given any objective explanation for the difference in treatment.</p> <p>&nbsp;</p> <p>Learned counsel for the applicants referred in his submissions to permissible limitations of rights sighting Article 43 of the Constitution. He submitted that no person shall prejudice the public interest or permit political persecution, detention without trial beyond what is acceptable and demonstrably justifiable in a free and democratic society. He further submitted that Article 43 reflects what he called the <strong><u>Siracusa Principles UN Doc E/CN.4/1984/4 (1984).</u></strong></p> <p>&nbsp;</p> <p>As I have already held, the restriction of the applicants’ rights was done on the basis that they were promoting illegality in the exercise of their rights. It is trite law that the prevention of promotion of illegal acts is clearly acceptable and justifiable in any free and democratic society because it is based on the law. All democratic countries are founded on the rule of law. This court cannot determine whether the law prohibiting homosexual acts, that is, S. 145 of the Penal Code Act or their incitement is justifiable or acceptable in democratic countries, because this would necessitate interpretation of the Constitution as to whether the law is consistent with Article 43 of the Constitution.</p> <p>&nbsp;</p> <p>It is the Constitutional Court which is mandated to do so. It is therefore irregular for learned counsel for the applicants to raise the issue in an application for enforcement of rights in the High Court. I can only note that limitation or restriction on rights can be acceptable and demonstrably justifiable if it is not so wide as to put the right itself in jeopardy see: <strong><u>Onyango Obbo Vs Attorney General</u></strong> (supra).</p> <p>I am of the considered view that in the circumstances of the case under consideration, the essence of the rights to expression, association, assembly, political participation and equality under the law were not jeopardized and the rights remain available to the applicants. The actions of the second respondent were permissible limitation of the applicants’ rights.</p> <p>&nbsp;</p> <p>In his submission, learned counsel for the applicants acknowledged that under Article 27 of the African Charter morality is recognized as a legitimate interest justifying the restriction of rights yet on the other hand he argued that the Minister’s attempt to prevent the promotion of homosexuality on the basis of traditions, culture and morality in Uganda is not a permissible restriction on rights. He cited the case of <strong><u>Re Futyu Hostel, Tokyo HC Civil 4<sup>th</sup> Division Japan of 1997</u></strong> but did not supply that authority but the case is indicated in Annexture 12. In the said case, learned counsel submitted that the Japanese Court held that the possibility of same sex activity was not a justifiable reason to deny homosexuals from using a public hostel facility and amounted to undue restriction on their right. However, as rightly argued by learned counsel for the respondent the said case is distinguishable because Japan has not had laws prohibiting homosexual acts since the year 1980 as per the respondents’ Document No.3 on LGBT Rights in Japan. As such there was no legitimate basis to restrict same sex activity in Japan.</p> <p>&nbsp;</p> <p>Learned counsel for the applicant also relied on the fact that the <u>UN Human Rights Committee</u> (UNHRC) criticized the use of protection of public morals as a basis for derogating from rights in relation to homosexuality. However, these were views or observations of the UNHRC which are not legally bidding on the UN member states and are unenforceable against the involved state party. In Uganda, the only forum which can determine if protection of public morals is justifiable as a basis for limiting homosexual rights under Article 43 or if legal restrictions such as S.145 of the Penal Code Act is inconsistent with Uganda’s obligations under International Law are our National Courts. Decisions from South Africa, Indian and Hong Kong which learned counsel for the applicants relied on reflect what those national courts have determined as to what amounts to public interest of those countries and as such are not bidding on Uganda. Since public interest is defined by a country’s fundamental values, it differs between countries.</p> <p>&nbsp;</p> <p>In as far as there is no legal challenge to the validity of S. 145 of the Penal Code Act, it is still valid and bidding on all courts in Uganda, regardless of whether there are foreign precedents stating that prohibition of homosexual acts as offences against morals is unjustified restriction on rights if the homosexuals.</p> <p>&nbsp;</p> <p>Issue 3:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <u>whether the second respondent can be sued in his individual capacity.</u></p> <p>In his submission on this issue, learned counsel for the applicants argues that Article 20 (2) and 17 (1)(b) of the Constitution imposes a duty on all organs of Government and all persons, including the Minister to respect, uphold and promote individual rights and freedoms and therefore he can be sued in his individual capacity. That Hon. Lokodo cannot violate human rights and hide behind the cover of the Attorney General. That the Constitution imposes a positive duty on him to respect, uphold and promote the rights of individuals. That all agencies are equally obliged and enjoined to respect, uphold and promote the rights of individuals. Therefore suing the Attorney General and an individual is not mutually exclusive.</p> <p>&nbsp;</p> <p>Learned counsel for the respondent submitted to the contrary and I agree. Any suit can only be brought in accordance with the law. Whereas it is not disputed that the Minister has the Constitutional duty alluded to by learned counsel for the applicants subject to Article 43, the challenged actions were not undertaken for his personal benefit. He acted in the performance of his duties as a government Minister of Ethics and Integrity. Thus, under the well established principle of vicarious liability he is not personally liable for his official actions which were alleged to have infringed on human rights. The Attorney General is vicariously liable for the official actions of the Minister. From the facts I have gathered while considering this suit and the evidence available, it was not proper to have sued the second respondent for his official actions as Minister for Ethics and Integrity. All suits for and/or against government have to be instituted against the Attorney General. Therefore the suit against the second applicant was incompetent in law. It would accordingly be struck out with costs.</p> <p>&nbsp;</p> <p>Issue 4:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <u>whether the applicants are entitled to the remedies prayed for.</u></p> <p>&nbsp;</p> <p>In my ruling I have endeavored to come to conclusions that while the applicants enjoyed the rights they cited, they had an obligation to exercise them in accordance with the law. I have also concluded that in exercising their rights they participated in promoting homosexual practices which are offences against morality. This perpetuation of illegality was unlawful and prejudicial to public interest. The limitation on the applicants’ rights was thus effected in the public interest specifically to protect moral values. The limitation fitted well within the scope of valid restrictions under Article 43 of the Constitution.</p> <p>&nbsp;</p> <p>Since the applicants did not on a balance of probabilities prove any unlawful infringement of their rights, they are not entitled to any compensation. They cannot benefit from an illegality.</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>The applicants also prayed for declarations that the actions of the Minister amounted to a breach of their Constitutional rights. From my conclusions, the applicants are not entitled to these declarations. The prayer for an injunction cannot be granted since it was not pleaded in the application. Consequently this application is hereby dismissed with costs to the respondent.</p> <p>&nbsp;</p> <p><strong>Stephen Musota</strong></p> <p><strong>J U D G E</strong></p> <p><strong>24.06.2014</strong></p> <p>&nbsp;</p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-08d96e26f0adf96fa02b8ab7c99bf543"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/high-court/2014/85/high-court-2014-85.docx" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Mon, 27 Jul 2015 14:08:53 +0000 Anonymous 18903 at https://old.ulii.org Ojangole & 4 Ors v Attorney General (MISC CAUSE NO. 303 OF 2013) [2014] UGHCCD 58 (14 April 2014); https://old.ulii.org/ug/judgment/hc-civil-division-uganda/2014/58 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/hr" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">HR</a></li><li class="field-item odd"><a href="/tags/equality-law-and-equal-protection-law" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Equality before the law and equal protection of the law</a></li><li class="field-item even"><a href="/tags/have-his-cause-heard-fair-trial" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Have his cause heard (fair trial)</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p align="center"> &nbsp;</p> <p align="center"> <strong>Application for judicial review in favour of bank officials who were interdicted following directives from the INSPECTOR General of Government</strong></p> <p align="center"> &nbsp;</p> <p align="center"> <strong>THE REPUBLIC OF UGANDA </strong></p> <p align="center"> <strong>IN THE HIGH COURT OF UGANDA AT KAMPALA</strong></p> <p align="center"> <strong><u>CIVIL DIVISION</u></strong></p> <p align="center"> <strong>MISC CAUSE NO. 303 OF 2013</strong></p> <p align="center"> &nbsp;</p> <p align="center"> <strong>IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW</strong></p> <p> &nbsp;</p> <p> <img height="117" src="file:///C:%5CUsers%5Cjmugala%5CAppData%5CLocal%5CTemp%5Cmsohtmlclip1%5C01%5Cclip_image001.gif" width="36" /><strong>1. OJANGOLE PATRICIA </strong></p> <p> <strong>2. ANDREW MULUBYA</strong></p> <p> <strong>3. DANIEL KAGWA&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; ::::::::::::::::::::::::: APPLICANTS</strong></p> <p> <strong>4. DR. SAMUEL SEJJAKA</strong></p> <p> <strong>5. UGANDA DEVELOPMENT BANK </strong></p> <p align="center"> <strong><em>VERSUS</em></strong></p> <p> <strong>ATTORNEY GENERAL &nbsp; ::::::::::::::::::::::::::::::::::::::::::::::::::::&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; RESPONDENT</strong></p> <p> <strong>Brief facts</strong></p> <p> &nbsp;</p> <p> The five applicants to wit; Patricia Ojangole, Andrew Mulubya, Daniel Kagwa, Dr. Samuel Sejjaka and Uganda Development Bank Limited through their lawyers M/s Ligomarc Advocates filed this application for Judicial Review by way of Notice of Motion under Articles 28, 42, 44 &amp; 50 of the Constitution, S. 38 of Judicature Act, S. 98 of the Civil Procedure Act and rules 3(2) and 6 of Judicature (Judicial Review) Rules 2009 moving this court for orders declaring that:-</p> <ol> <li> &nbsp;</li> </ol> <ol style="list-style-type:lower-roman;"> <li> The Inspector of Government (IGG) misused&nbsp; its discretionary powers when it directed the 5<sup>th</sup> applicant&rsquo;s Board of Directors, whose Chairman is the 4<sup>th</sup> applicant to suspend the 1<sup>st</sup> , 2<sup>nd</sup> and 3<sup>rd</sup> applicant from their positions as employees of the 5<sup>th</sup> applicant.</li> </ol> <p style="margin-left:.75in;"> &nbsp;</p> <ol style="list-style-type:lower-roman;"> <li value="2"> The IGG acted illegally, high handedly, irrationally and unreasonably when it directed the 5<sup>th</sup> applicants Board of Directors to suspend the 1<sup>st</sup> ,2<sup>nd</sup>, and 3<sup>rd</sup> applicants from their employment with the 5<sup>th</sup> applicant without affording them a fair hearing.</li> </ol> <p style="margin-left:.25in;"> &nbsp;</p> <p> The applicants further sought for orders of this court issuing:-</p> <p> &nbsp;</p> <p style="margin-left:.5in;"> (2)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; An order of Certiorari to move to this court to set aside, quash the IGG directive issued on 30<sup>th</sup> &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; July 2013 directing the 4<sup>th</sup> applicant to suspend the 1<sup>st</sup>, 2<sup>nd</sup> and 3<sup>rd</sup> applicant from their employment &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; with the 5<sup>th</sup> applicant.</p> <p style="margin-left:.5in;"> &nbsp;</p> <p style="margin-left:.5in;"> (3)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; An injunction restraining the IGG or any of the respondent&rsquo;s agents from making any further &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; orders directives for the interdiction suspension, termination or removal by any other means the 1<sup>st</sup> &nbsp;&nbsp; to the 4<sup>th</sup> applicant from their respective employment and positions with the 5<sup>th</sup> applicant on the &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; premise of the impugned investigation.</p> <p style="margin-left:.5in;"> &nbsp;</p> <p style="margin-left:.5in;"> (4)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; An order awarding general damages to the applicants for the anguish inconvenience, injury, &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; suffered to the 5<sup>th</sup> applicant&rsquo;s business and the good will due to the respondent&rsquo;s illegal actions &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; against the applicants.</p> <p> &nbsp;</p> <p> The grounds of the application are that:-</p> <ol style="list-style-type:lower-roman;"> <li> The investigations conducted by the IGG out of which the impugned directives has been made were conducted in an oppressive, irrational, vindictive and biased manner.</li> <li> The IGG&rsquo;s directive to suspend the entire Senior Management team of a financial institution will result in significant disruption of the Bank&rsquo;s operations.</li> <li> The implementation of the IGG&rsquo;s directive does not serve the general interest of the public.</li> </ol> <p> &nbsp;</p> <p> <strong>Issues</strong></p> <ol> <li> <em>Whether in the circumstances of this case the applicants are entitled to the remedies sought.</em></li> </ol> <p> &nbsp;</p> <p> <strong>Civil procedure</strong>- Judicature Act- whether by bringing this application under section</p> <p> <strong>Corporate governance</strong> &ndash; whether the IGG has powers to direct the board of Directors to discipline and/or interdict her staff.</p> <p> <strong><em>Employment law</em></strong> &ndash; whether an employ who is under investigations has a right to a fair treatment during the process of investigations.</p> <p> &nbsp;</p> <p> <strong>Judicial review</strong>- grounds for grant of remedies in an application for judicial review</p> <p> <strong>Principles of natural justice</strong>- whether the principles of natural justice must be applied in all situations</p> <p> &nbsp;</p> <p> <strong>Held.</strong></p> <p> &nbsp;</p> <ol> <li> <em>Learned counsel for the applicant submitted to the contrary saying that this application is properly before court and I agree. By virtue of S.3 of the Judicature (Amendment) Act 2002, the original S. 38 of the Judicature Act Cap 13 was substituted with a new S. 38. The said S.3 states that &ldquo;<strong>The Statute is amended by substituting for S. 38 the following new section &ndash; &ldquo;Judicial Review</strong></em><strong><em>&rdquo;. </em></strong><em>In my view if an update is done on the old section by deleting it and replacing it by the new S. 38, that section remains the same. Therefore this application is properly before court.</em></li> <li> <em>In order for one to succeed in an application for Judicial Review the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety. <u>Illegality</u> is when the decision making authority commits an error of law in the process of taking the</em> <em>decision or making the act, the subject of the complaint. Acting without jurisdiction or ultravires or contrary to the provisions of a law or its principles are instances of illegality. <u>Irrationality</u> is when there is such gross unreasonableness in the decision taken or act done that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards. <u>Procedural impropriety</u> is when there is a failure to act fairly on the part of the decision making authority in the process of taking a decision. The unfairness may be in the non-observance of the rules of natural justice or to act with procedural unfairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in</em> a statute or legislative instrument by which such authority exercises jurisdiction to make a decision.</li> <li> <em>Learned counsel for the applicants submitted to the countrary and I agree. Even in cases of criminal investigations, principles of fairness and natural justice must be applied. The argument that the IGG or any criminal investigation agency can conduct partial or weak investigations merely because the victim will be afforded a hearing during the criminal trial lacks merit. Investigation agencies must conduct their investigations with fairness and impartiality. No one has a right to prosecute people any how because they will defend themselves in the trial. This is more so when the alleged offences arise from employer&rsquo;s discretion when managing an institution or when it relates to an employee. Therefore while the 1<sup>st</sup> to the 3<sup>rd</sup> applicants may be heard in their defence to criminal charges against them in a criminal court, the right to a fair hearing is sacrosanct especially for an employee prior to his/her Employer&rsquo;s decision to invoke disciplinary penalties which is enshrined in the employment law and not criminal law.</em></li> <li> <em>I agree with the submissions by learned counsel for the applicants that had the applicants been given a proper chance to explain themselves in the context of fair investigation they would have brought forth the scheme by disgruntled members of staff. For example the unrebutted Mulubya&rsquo;s affidavit revelations in paragraphs 29-32 that the complainant was involved in a scheme to steal confidential information which is being used against the 5<sup>th</sup> applicant would have come out.</em></li> <li> <em>It is now settled that it is a fundamental principle of justice and procedural fairness that no person is to be condemned unless that person has been given prior notice of the allegations made against him or her, and a fair opportunity to be heard.</em></li> <li> <em>From the above celebrated pronouncements it is apparent that the rule of natural justice obliges an adjudicator faced with the task of making a choice between two opposing stories to listen to both sides. He should not base his decision only on hearing one side. He should give equal opportunity to both parties to present their cases or divergent view points. The scales should be held evenly between the parties. It does not matter that the result would be the same</em>.</li> <li> <em>In the instant case I am constraint to find that the applicants were not accorded a fair hearing during the IGG investigations of this case. Even in matters of criminal investigations, whether or not they lead to administrative sanctions, rules of natural justice must be observed and&nbsp; the affected parties must be accorded a fair hearing to state their side of the story in an investigation conducted free of bias. </em></li> <li> <em>The actions of the IGG in this case amounted to procedural impropriety. The applicants were given the impression that what was being investigated was different from what they were arrested for, i.e victimization.</em></li> <li> <em>On whether the IGG acted in an irrational manner in making the decisions in this case, the submission by leaned counsel for the applicants is spot on. It is apparent that the IGG completely ignored the evidence on allegations of fraud involving 54 Billion shillings and opted to swiftly and vigorously pursue the case of victimization of a whistleblower. </em></li> <li> <em>As can be seen in paragraph 33 and annex &lsquo;J&rsquo; to Mulubya&rsquo;s affidavit as well as paragraph 43 and annexture &lsquo;N&rsquo; to Ojangole&rsquo;s affidavit, lines of credits and trainings that had been opened in favor of the Bank were immediately cancelled and/or withheld upon hearing of the applicants arraignment. A bank&rsquo;s business is premised on stability and credibility. </em></li> <li> <em>By insisting on the implementation of the directive which attracted negative publicity to the Bank&rsquo;s executive, the IGG injured the Bank&rsquo;s and public interest which was irrational. </em></li> <li> <em>I also agree with the submission by learned counsel for the applicants that the IGG&rsquo;s directive to the 4<sup>th</sup> and 5<sup>th</sup> applicants were illegal and an abuse of its powers as it seeks to exert influence on the board to exercise its discretionary powers in disciplinary matters in the IGG&rsquo;s favor. The 5<sup>th</sup> applicant is a duly incorporated company and its Human Resource Manual (annexture &lsquo;M&rsquo; to Mr. Sejjaka&rsquo;s affidavit) is implemented by the Board of Directors which is mandated to manage the institution. </em></li> <li> <em>Clearly the directive by the IGG was ultra vires the above provision as there was no recommendation for the suspension from the bodies or persons envisaged in the manual of both the corporate 5<sup>th</sup> applicant and the 4<sup>th</sup> applicant. </em></li> <li> <em>The IGG was in essence exerting pressure and influence on the 4<sup>th</sup> applicant and the Board of Directors of the 5<sup>th</sup> applicant to exercise their discretionary powers through threats to take actions against them if they did not comply with her directive. Obviously such threats are high-handed because disciplinary action against the employees of the 5<sup>th</sup> applicant is the preserve of the board. In modern corporate governance such arrangement ought to be respected.</em></li> </ol> <p style="margin-left:22.5pt;"> &nbsp;</p> <p style="margin-left:22.5pt;"> <em>In view of the procedural defects, irrationalities and illegalities, outlined above, the IGG&rsquo;s directive against the applicants could not be allowed to stand. The same was quashed by way of an order of certiorari. an injunction issued restraining the IGG and any of the respondents&rsquo; agents from making any further orders or directives for the interdiction, suspension, termination of the 1<sup>st</sup> to the 4<sup>th</sup> applicant and/or any director or employee of the 5<sup>th</sup> applicant from their respective employment and positions on the premise of the impugned investigations. </em></p> <p> <em>Consequently this application for judicial review was granted with costs.</em></p> <p> &nbsp;</p> <p> &nbsp;</p> <p> &nbsp;</p> <p> &nbsp;</p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-2a0715d6761aa7a7a8db880fcfe34796"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/high-court/2014/58/high-court-2014-58.docx" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Mon, 27 Jul 2015 14:08:29 +0000 Anonymous 18823 at https://old.ulii.org