THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISCELLANEOUS CAUSE NO. 176 OF 2015
GEN. DAVID SEJUSA ::::::::::::::::::::::::::::::::::::APPLICANT
ATTORNEY GENERAL :::::::::::::::::::::::::::::::::::RESPONDENT
This is an Application brought under Article 42 of the Constitution, Section 36 of the Judicature Act, Rule 6, 7 and 8 (2) of the Judicature (Judicial Review) Rules SI 11/2009 for Judicial Review and the following reliefs;
- A declaration that the Applicant ceased to be an officer of the UPDF on the 8th April, 2015, since ninety (90) days within which the Respondent ought to have officially communicated its decision to him had expired.
- A declaration that the Respondent’s commission and /or omission to communicate its decision to the Applicant within ninety (90) days. But continuing to discharge others within the period contravened Articles 2(2); 21; 24; 25(1) & (2); 40 (3) c ; 42; 44 (a), (b) & (c) & 137 (3)b of the Constitution of the Republic of Uganda.
- A declaration that the Respondent’s commission and or/ omission to communicate its decision to the Applicant ; refusal to pay him his salary and other benefits; withdrawal of his army guns ; refusal to deploy him ; failure to provide him with transport, meals and housing all amounted to ‘CONSTRUCTIVE DISCHARGE’ of the Applicant from the Uganda people’s forces.
- A declaration that since the Respondent constructively discharged the Applicant, then the Applicant is entitled to a discharge certificate accordingly.
- A declaration that since the Respondent constructively discharged the Applicant, then the Applicant is entitled to his salary arrears, emoluments, and his retirement benefits.
- An order of mandamus ordering the Respondent, officers under them, the Chief of personnel to hand the Applicant his discharge certificate.
- An Order of prohibition prohibiting the Respondent, the Chief of defense forces, chief of staff –LF and all other officers under them purporting to assign, deploy, transfer or control the Applicant as an active officer of the UPDF contrary to the Law.
- An order directing the Respondent to pay the Applicant his salary arrears that were not paid to him until the recall and replacement in parliament.
- An order directing the Respondent to pay the Applicant his other retirement benefits and or arrears due and owing.
- An order directing the Respondent to calculate and pay the Applicant his retirement benefits having at least served for 34 years and pay him.
- General damages for wrongful withholding of the Applicant in the UPDF from 8th April, 2015 until the date of Judgment.
- An order that the Respondent pays 20% of the sum in (v) , (viii) and (ix) above.
- Costs of the suit.
The Application is supported by the Affidavit of the Applicant dated 20th November, 2015.
The grounds of the Application are contained in the Affidavit of the Applicant but briefly are as follows;
- That the Applicant has so far served his country in police and military for thirty four (34) years.
- That the Applicant sustained and suffered major bullet injuries on his body, and the evidence is in the fact that he walks with a limp.
- That the Applicant is a citizen of advanced age , now sixty two (62) years of age whose physical activities are hampered by the combination of the age and physical injuries from NRA/UPDF battles.
- That in 1996, the Applicant applied to the Respondent to be discharged from the UPDF but was denied.
- That the Applicant’s Luwero war colleagues and many he trained and commanded have been retired in thousands of numbers, but him.
- That the work conditions continued to be harsh and oppressive to the Applicant to the extent that it is no longer military service but a deliberate military prison for him.
- That on 30th December, 2014 the Applicant submitted his application for retirement from the UPDF to the Commissions Board and receipt thereof was acknowledged by the office of the Chief of Defense forces (CDF) on the same day.( A copy of the Application is attached as Annexure “A” on the Court record).
- That on the 31st December, 2014, a copy of the said Application was served upon H.E The President of the Republic of Uganda and Commander in Chief Defense forces. ( see Annexure ‘ B’ )
- That on the 3rd January, 2015, H.E the President/ Commander in Chief of the Republic of Uganda invited the Applicant with his Lawyers to state house Entebbe for a meeting to discuss his retirement , among other issues which meeting was attended by the Chief of Legal services of the UPDF , Gen. Elly Tumwine and others.
- That in the meeting, the president personally instructed the Chief of Legal Services of UPDF and other relevant officers to process the Applicant’s retirement as soon as possible.
- That on 7th January, 2015 the Applicant, through his Lawyers, wrote a reminder to the Chief of Legal Services of UPDF.
- That on the same day, 7thJanuary, 2015, the Chief of Legal services of the UPDF replied and denied such instructions from H.E the President ( a copy of the letter is attached hereto as Annexure “C”).
- That on the 8thJanuary, 2015, the Chief of Defense forces Gen. Katumba Wamala , who is also the Chairman of the Commission / Promotions Board wrote to the Applicant claiming that he was waiting for instructions from H.E The President and Commander in Chief of defense forces for guidance on the matter. ( A copy of the letter is attached hereto as Annexure ‘D’).
- That on the 14th January, 2015 the Applicant wrote to Joint Chief of staff requesting for his salary arrears and benefits. ( A copy of the letter is attached hereto as Annexure ‘E’ ).
- That on the 19th February, 2015, the Chief of Defense forces replied and stated that the Applicant was not entitled to any salary. ( A copy of the letter is attached hereto as Annexure ‘F’).
- That on the 6th March, 2015, the Applicant through his Lawyers wrote to His Excellency the President and Commander in Chief and reminded him of his promise to retire him .( see Annexure ‘G’ ).
- That the Commander in Chief chose to ignore the Applicant’s letter and the Applicant has neither received any discharge certificate, a rejection of his retirement nor his salary benefits.
- That the failure of the Respondent to pay his terminal benefits is irrational, illegal and unreasonable.
- That the decision of the Respondent, UPDF officers and Administrators purportedly to start deploying and purportedly to transfer the Applicant to various units in the UPDF after he has been found medically unfit is illegal, irrational and unreasonable.
- That it is fair and equitable that the Orders sought are granted.
The brief facts of the case are that the Applicant General David Sejusa alleges that he applied to retire from the army on the 30th December, 2014 and has not received any formal response from the UPDF to date and yet the Commission is mandated by statute to Respondent within 90 days from receipt of the Application.
That instead the UPDF subsequently stopped paying his salary, stopped giving him other benefits and allowances. And his guns and uniforms were withdrawn and following that the Applicant filed this Application for inter alia Orders of mandamus to compel the Respondent to have him discharged with a discharge certificate. And other reliefs as stipulated in the Notice of Motion.
At the commencement of the hearing, the Parties framed the following issues in Court;
- Whether or not the Applicant ceased to be an officer of the UPDF on 8/4/ 2015?
- Whether or not the Respondent’s commission/ omission to communicate its decision within 90 days but continuing to discharge others contravenes the Law?
- Whether the Respondent’s decision to refuse to pay the Applicant his salary and other benefits and refusal to deploy him and withdraw all his uniforms and guns amounted to constructive discharge?
- Whether or not if Court finds constructive discharge, the Applicant is entitled to a discharge certificate from the Respondent?
- Whether after a finding of constructive discharge the Applicant is entitled to his salary arrears, emoluments and all his retirement benefits?
- Whether or not the Applicant is entitled to an Order of mandamus against the Respondent to hand over the discharge certificate?
- Whether the Applicant is entitled to an Order of prohibition against the Respondent from reassigning, redeploying, transferring or controlling the Applicant.
- Whether the Applicant is entitled to an Order against the Respondent to refund his pension contributions together with interest accruing.
- Whether the Respondent should be directed to pay the Applicant his salary arrears?
- Whether the Applicant is entitled to general damages?
- Whether the Applicant is entitled to interest and costs of the suit?
Counsel for the Respondent also raised the following issues
- Whether the Application is time barred?
- Whether the Application is amenable to Judicial Review?
In order for Court to effectively resolve the matters in contention, I have condensed the issues into four as follows;
- Whether or not this Application is time barred?
- Whether the Application is amenable to Judicial Review?
- Whether the Respondent’s actions of refusal to pay the Applicant’s salary and other benefits and withdrawal of his guns, uniforms and refusal to deploy him including failure to provide him with transport, housing allowance amount to constructive discharge?
- Whether the Applicant is entitled to the remedies sought?
Issue No. 1: Whether this Application is time barred?
Mr. Kalemera the Learned state Attorney representing the Respondent raised two objections based on the Law, the first being that the Application is time barred and the other whether the Application is amenable to Judicial Review.
Mr. Kalemera cited Rule 5 (1) of the Judicature (Judicial Review) Rules SI 11/2009, which provides that an Application for Judicial Review shall be made promptly and in any event within three months from the date when the grounds of the Application first arose unless Court considers that there is good reason for extending the period within which the Application shall be made.
Mr. Kalemera further submitted that the Applicant’s core claim illustrated in Paragraph 4 of the claim was that he ceased being an officer on the 8th of April, 2015 since the 90 days within which he was supposed to receive an official communication of his retirement had expired.
That the Application for adjudication before this Court was filed on the 23rd November, 2015 over six months after the act in issue before Court.
Mr. Kalemera argued that Rule 5 (1) of the Judicature (Judicial Review ) Rules is specific and mandatory on the time frame within which matters that are amenable to Judicial Review can be filed before this Honorable Court.
That a reading of the same Rule 5(1) clearly illustrates that the only other option that would have been available to the Applicant would have been to apply for an extension of time before this honorable Court prior to the hearing of the main suit.
Counsel Kalemera then cited the case of Picfare industries Ltd Vs Attorney General &Anor M.C No. 258/ 2013, where Justice Musota while dismissing a Judicial Review Application for being time barred held at pg 4 that;
“Statutes of Limitation are in their nature strict and inflexible enactments. Their overriding purpose is ‘interest reipublica lut sit finis litum’, meaning litigation shall be automatically stifled after a fixed length of time irrespective of merits of the case.
“The proper procedure should have been for the Applicant to apply for extension of time within which to apply for Judicial Review under Rule 5 (2) of the Judicature (Judicial Review) Rules which was not done in this Application.”
That the Judge went on to dismiss the Application for being incompetent and struck it out, to support his contention.
Mr. Kalemera further cited the case of James Basiime Vs Kabale District Local Government M.A No. 20 /2011, where his Lordship Justice Kwesiga ruled at pg 5 that;
“In my view, the statutory provisions require that for the Application for Judicial Review to be valid, it must be filed not later that 3 months from the date when the matter or grounds complained of or the cause of action arose. Failure to bring the Application in time, the Applicant should apply for extension of time which can be granted by the Applicant showing good reasons. Alternatively, a judicial review application ought to contain good reasons which must be pleaded and can be considered by Court to satisfy itself that there are good reasons for the delayed Application.”
That the Judge went on to find at p.7 par. 2 that;
“The Application is invalid for reasons that it was filed out of time and there are no good reason for, or Application for extension of time to validate the Application.”
Mr. Kalemera Learned state Attorney thus submitted that Court finds the Application incompetent for having been filed out of time as the Applicant did not even bother to either apply for extension of time or give any justification for the delayed Application.
In reply Mr. Munungu Gideon Learned Counsel for the Applicant contended that the objection on Limitation of time is incompetent.
He then cited the decision of Kuluo Joseph Andrew and others Vs Attorney General and Others where Justice Bamwine held that;
“From my reading of the Judicial Review Rules in question, I get the impression that to ensure expeditious determination of the applications for Judicial Review than to oust Jurisdiction of Courts to hear the parties after a prescribed period.”
That in that case Attorney General had raised similar objections and Justice Bamwine went on to hold that;
“ Even if Court was to accept the strict interpretation of Rule 5 (1) , I would still find as I did in Nampogo Robert and Anor Vs. Attorney General HCMC No. 0120 of 2008 , that there is an allowance made in the same Rule for Court to exercise discretion in favor of the Applicant where Court considers that there is a good reason for extending the period within which the application shall be made.”
Counsel Munungu further submitted that in the event of upholding the objection, the Application be struck out and the Applicant would still be entitled to file another Application for extension of time under Rule (5)1 of the Judicature (Judicial Review) Rules in the sense that the alleged illegality would still subsist and the state of affairs would have to be remedied.
And that a case such as this involving alleged violation of Human Rights such an award would serve to violate human Rights of the Applicant given that the Constitution mandates Courts to administer Justice expeditiously without undue regard to technicalities and mindful of the fact that Administration of Justice must normally require that the substantive aspects should be decided on their merits and that lapses and errors should not debar a litigant from pursuing his rights.
That he further held that;
“ I am inclined to overlook the obstacle of Justice in accordance with Article 126(2)e of the Constitution and section 98 of the Civil Procedure Act and allow the Applicant to proceed with the Application.”
Counsel Munungu contended that the same reasoning was adopted in the case of Denis Bireije Vs Attorney General Misc. Appn. No. 902 of 2004 , where Court was of the View that the provisions of the Constitution on Fundamental Human Rights must be given a broad, purposive construction to give full measure to it.”
That Court will always avoid legalistic attitudes as would whittle down the full ambit of the protected right. A liberal approach must be taken when considering procedural technicalities or Rules that tend to hinder guaranteed unhindered access a person has to this Court.
That in that case the Attorney General had raised an objection for Judicial Review had been brought out of time and that Justice Okumu Wengi while quoting the case of Attorney General Vs Dr. James Rwanyarare and others Misc Application No. 3 of 2002 stated that provided for a Limitation of time within which to bring proceedings, the Constitutional Court was of the opinion that the effect of Literal Rule was inimical to and stifled the constitutional Rights of a person to go to Court.
Counsel Munungu also contended that the Application in this case is for enforcement of Human Rights of the Applicant and that by going with a strict interpretation of the Rules of Procedure, it would stifle the Applicant’s access to Justice and he prayed that the objection be overruled.
Counsel Munungu contended further that the failure to adhere to the mandatory obligation of the UPDF amounted to an illegality that can be brought to Court at any time and it cannot be ignored by this Court even if it was brought after three (3) months and he cited the case of Makula International Ltd. Vs. Cardinal Nsubuga and another (1982) HCB 11, which held that an illegality once brought to the attention of Court cannot be overlooked and overrides all pleadings including admissions. And that Justice Bamwine in that case held that dismissing the Application would mean an illegality.
That the case of Picfare industries Ltd Vs Attorney General &Anor M.C No. 258/ 2013, cited by Counsel for the Respondent is distinguishable in that it did not concern enforcement of Human Rights under the Constitution but was about compelling the Attorney General to pay a decretal sum that arose from a Judgment and Court should find the facts of that case different from the present one while dismissing the objection.
According to Rule 5(1) of the Judicature (Judicial Review) Rules, SI 11 of 2009, it is provided that;
“An Application for Judicial Review shall be made three months from the date when the grounds of the Application first arose unless the Court considers that there is a good reason for extending the period within which the Application shall be made.”
In the instant case, the Applicant filed his Application for retirement on the 30th of December, 2014 (see Annexure ‘A’)
By 8th April, 2015, the 90 days in which the Respondent should have communicated its decision expired (see section 66(2) of the UPDF Act.)
On 3rd January 2015, the Applicant and his Lawyers were invited to state house to discuss his retirement.
The meeting was attended by the Director of Legal Services of the UPDF and other officers.
On 7th January, 2015, the Applicant wrote a reminder to the Director Legal Services of the UPDF ( See Annex B ) to follow up on the His Excellency Yoweri Kaguta’s instructions to process his retirement.
On 8th January, 2015, the Chief of Defense Forces General Edward Katumba the Chairman Commissions/ Promotions Board wrote to the Applicant that he was waiting for instructions from his Excellency Kaguta Museveni (CIC) for guidance on the matter ( see Annexure ‘C’)
On 14th January, 2015, the Applicant wrote to the Chief of staff requesting for salary arrears and benefits. (See Annexure ‘E’).
On 6th March, 2015, the Applicant’s Lawyers wrote to President Museveni to remind him of his promise to retire the Applicant. ( See Annexure ‘G’)
His letters have not been responded to and he has not received his certificate of discharge or rejection of retirement or salary and other benefits.
According to Rule 5(1) of the Judicature (Judicial Review) Rules, An Application shall be made promptly and in any event within 3 months from the date when the grounds of the Application arose, unless the Court considers that there is good reason for extending the period within which the Application shall be made.
The date on which the grounds of the Application arose are alleged to be 8th April, 2015, when the 90 days expired within which the Respondent should have communicated his decision whether to accept or reject the Applicant’s request to retire.
In the instant case, the Respondent has not communicated their decision either to accept or reject he Applicant’s request to date.
In that respect, it is my considered opinion that the failure to communicate its decision entails a continuous (recurring) tort because the Applicant was entitled to a reply by 8th April, 2015. Failure to do so constitutes a continuous tort so you can’t state a date when the Cause of Action arose.
It was a misnomer for both Counsel to take 8th April, 2015, as the date when the grounds of the Application arose just because it is when the 90 days expired.
Moreover failure to communicate their Decision constitutes an illegality and once such an illegality is brought to the attention of the Court, it cannot override the Rights of the Applicant which have been violated by failure to communicate to him the Decision of the Respondent.
This Application is grounded on a violation of the Applicant’s Right to a just and a fair treatment in Administrative Decisions ( see Article 42 (1) of the Constitution of Uganda.)
Procedural errors cannot override the Applicant’s guaranteed rights.
In addition, Article 126(2) e of the Constitution of Uganda enjoins this Court to administer Justice without undue regard to technicalities.
Besides that, Rule 5(1) itself provides that the Application has to be made within 3 months from the date when the Application arose unless Court considers that there are good reasons for extension of time in which to bring the Application.
In the instant case, the Applicant stated that after he submitted his Application with a copy to his Excellency the President, the Commander in Chief called him for a meeting with the Chief of Legal Services who was directed to handle the matter.
When he delayed to get a response, the Applicant wrote to the Director Legal Services who had been directed to handle his Application.
However, he has never received a response either accepting or rejecting or a discharge certificate.
All the above shows that the Applicant attempted to make a follow up on his Application with the hope and promises that his Application will be handled.
In view of the above, Court is satisfied that the Applicant has shown good reasons for Court to exercise its discretion to extend the time in which the Application had to be filed.
As regards to Counsel for the Respondent’s argument that the Applicant should have made an Application to file the Application out of time first,
The Law under Article 28 provides that in determining Civil Rights and Obligations or any Criminal Charges, a person is entitled to a fair and speedy hearing.
Striking out the Application and ordering the Applicant to file an Application out of time, will violate his right to a speedy trial under Article 28(1) of the Constitution and will be an abuse of Court process contrary to section 98 of the Civil Procedure Act. Moreover it will proliferate a multiplicity of proceedings.
As for the Case of Picfare industries Ltd Vs Attorney General & Anor M.C No. 258/ 2013 as cited by Counsel for the Respondent, I concur with Counsel for the Applicant that it is distinguishable from the present case and I therefore disregard it as it is only persuasive and not binding and this Court.
Consequently, I am compelled to find that this Application is not filed out of time and is properly before this Honorable Court and the objection is overruled.
1ssue 2: Whether the Application is amenable to Judicial Review?
Counsel Mushabe for the Applicant contended that there are 3 grounds of Judicial Review in this Application and that is illegality, irrationality tainted with procedural impropriety.
Counsel cited the case of Obore George Vs the Inspectorate of Government and Anor HCMA No. 5 of 2013, where Court held illegality, irrationality tainted with procedural impropriety to be unfair.
Counsel went on to discuss all the aspects of Judicial Review and how the Respondent’s actions reflected them as follows;
On the aspect of illegality, Counsel Mushabe for the Applicant while referring to section 66 (2) of the UPDF Act which provides that;
“The Board shall notify the officer of its decision on his or her Application to resign his or her Commission within ninety days after receipt of his or her Application, and the approval of an application to resign the commission shall not be unreasonably withheld.”
Counsel further submitted that there are 3 things that stand out from this section and that is;
- The word ‘SHALL’
- The 90 days
- The phrase ‘it shall not be unreasonably withheld’
He further contended that the Legislative intent was to cover actions such as the present.
Counsel Mushabe went on to cite the case of Obore (supra) , where the definition of the word ‘SHALL’ was given while relying on the Black’s Law Dictionary as;
“Generally imperative or mandatory, that is the word ‘shall’ is a word of command and one that must be given compulsory meaning as denoting obligation. The word in ordinary usage means ‘must’ and is inconsistent with a concept of discretion.”
That the UPDF Commissions/ Promotions Board was to act in 90 days and had no reason to keep quiet.
That the Respondent has committed an illegality because he has held the Application unreasonably since other thousands of soldiers have been discharged after the said Application.
Counsel Mushabe went on to submit on the ground of irrationality by first giving the definition of irrationality as wednesbury unreasonableness.
That it applies to a decision which is so outrageous in defiance of logic or accepted moral standards.
That in the instant case, it is irrational that the Respondent would keep quiet about the Application and then go on to withdraw guns and uniforms.
That that conduct is outrageous, illogical and defies all accepted moral standards.
He thus submitted that irrationality had been shown.
On the aspect of impropriety, Counsel Mushabe for the Applicant submitted that the Respondent’s failure to notify the Applicant about its decision amounts to procedural impropriety. He referred to the case of Obore (supra), which states that procedural impropriety covers failure by an Administrative Tribunal to observe procedural Rules that are expressly laid out in the Legislative instrument by which its Jurisdiction is conferred even where such failure does not involve any denial of Natural Justice.
That the procedural Rules as articulated in s. 66 of the UPDF Act are to the effect that, apply and wait for 90 days but the Respondent shall communicate its decision to the Applicant within 90 days.
That the Respondent failed to observe the procedural Rules expressly laid out in s.66 of the UPDF Act , thus this inaction falls within that element of procedural impropriety.
In addition, Counsel Munungu also for the Applicant on this issue contended that the assertion by the Respondent that the Application is still undergoing Judicial Consideration is a lie, that the Respondent clearly abdicated its role contained in section 20(3)f of the UPDF Act of monitoring officers due for retirement and prayed that Court also finds so.
Counsel Bbaale for the Applicant also contended further that much as the Affidavit in reply under paragraph 11, stipulates that the Application is still under consideration, it is one and a half years now and there is no evidence that it is under consideration.
He contended that since the ground contended in paragraph 11 of the Respondent’s Affidavit in reply is not supported by any Law, that it is unfair, illegal and discriminatory.
In order support his contention that Courts cannot be concerned and relied in matters which aren’t supported by Law, Counsel Baale cited the case of Kyambogo University Vs Pro. Isaiah Ndiege Omolo C.A No. 341/2013
Further Counsel Mutabingwa, in regard to the propriety of the Application for Judicial Review contended that the Law allows the Applicant to bring this Application by way of Judicial Review.
That according to the Application the remedies sought by the Applicant are well stated in the petition and they include Declaration, Mandamus, Prohibition and damages.
Mr. Mutabingwa contended that paragraph 12 of the Application is for damages and that the Law allows the Applicant to bring an Application for these reliefs under the Judicature Act s. 36 (1) which provides that;
“The High Court may upon an Application for Judicial Review grant any one or more of the following reliefs in a Civil or Criminal matter-
- An Order of mandamus requiring any act to be done
- An Order of prohibition prohibiting any proceedings or matter
- An Order of Certiorari , removing any proceedings or matter into the High Court
- An Order to restrain a person from acting in any office he or she is not entitled to act.
- A declaration or injunction not being an injunction referred to in paragraph (d) of this section.”
Counsel Mutabingwa contended that the High Court can grant all these remedies under an Application for Judicial Review.
That the same are repeated in SI 11/2009 Judicature (Judicial Review) Rules. That Rule 3 of these Rules provides for cases that are appropriate for Judicial Review.
That in Rule 3(1) is for mandamus
And Rule 3(2) is for a declaration.
Counsel Mutabingwa thus contended that his submissions above show that the Law allows the Applicant to bring his Application for these remedies by way of Judicial Review and that the requirements had already been submitted on of impropriety, illegality and irregularity.
He thus submitted that this Application was properly before this Hon. Court.
In reply, to this issue, Mr. Kalemera the Learned State Attorney for the Respondent who raised this issue as a preliminary objection contesting whether this matter is amenable to Judicial Review, referred Court to the case of Fuelex Uganda Limited Vs Attorney General and 2 others Misc. Cause No.48 of 2014, where his Lordship Justice Musota held at pg 7-8that,
“The remedy of Judicial Review is not concerned with the merits of the decision complained of but rather the decision making process itself. The purpose is to ensure that the individual is given a fair treatment by the Authority to which he has been subjected.”
That the Judge further held that,
” In Order to succeed in an Application for Judicial Review, the Applicant has to show that the decision complained of is tainted with illegality, irrationality and procedural impropriety.”
Counsel Kalemera submitted that for an Application to come before this Honorable Court, there must be a decision in existence so that the Court must be able to investigate the decision making process to ensure that the Applicant was accorded fair treatment.
Counsel adduced the definition of the word ‘Decision‘ according to the Black’s Law Dictionary 9th Edition pg 467 as,
“ A Judicial or Agency determination after consideration of the facts and Law.”
That in Words and phrases legally defined, 4th Edition pg 603, it states that,
“Another essential quality of a reviewable decision is that it must be substantive determination. It may well be that the word ‘decision’ means an ultimate or operative determination not a mere expression of opinion or statement which can of itself have no effect on a person.”
Counsel further referred to the case of Picfare Industries Vs Attorney General Miscellaneous Cause No. 258/2013 pg. 4 where Justice Musota held that,
“ The underlying principle in order to proceed in an Application for Judicial Review is for the Applicant to show that the Respondent a public body has taken a decision or done an act which is tainted with illegality , irrationality and procedural impropriety”, to support his contention.
Counsel Kalemera further submitted that as per Annexure ‘A’ of the Affidavit in support, the Applicant applied to retire from the army and did not as his Counsel have submitted in Court apply to resign Commission.
That the two ‘Resignation from the army of an officer’s Commission’ and ‘retirement on pension after a minimum of 13 years’, are completely 2 different concepts.
Counsel Kalemera in a bid to support his contention referred Court to the Black’s Law dictionary pg 1431 for the definition of retirement which is;
“Termination of one’s own employment or career especially upon reaching a certain age or for health reasons.”That that retirement may be voluntary or involuntary.
Counsel also referred Court to the 5th Schedule of Regulation 28(2) of the UPDF Conditions of Service that states the maximum ages of retirement but that the High Command may extend the age when it sees it necessary.
He also contended that S. 66 of the UPDF Act defines Resignation of Commission and that the Applicant and his Counsel are trying to good wink this Hon. Court that the Applicant applied to resign his Commission and so enjoys the statutory benefit of S. 66 to respond to an application for resignation of Commission within the 90 days of receipt of the Application.
That what actually happened is that the Applicant applied to retire from the army but he is bound by the UPDF Act to wait for a decision of the Commissions Board and that this decision is not time bound in any way.
Mr. Kalemera the Learned state Attorney for the Respondent thus prayed that Court finds that there is no decision as the Application for retirement is still being considered and as a result, Court cannot inquire into the propriety of the Decision-making making process where no decision exists.
Counsel thus submitted that the Applicant is prematurely before his Hon. Court as the Law would only accept Applications for Review if there had been a decision on retirement that he was now seeking to subject to Judicial Review.
In rejoinder to this issue, Counsel Munungu for the Applicant contended that the Respondent’s assertion that there was no decision and the Application being improperly before this court is misconceived.
Counsel while relying on the case of Kuluo Joseph and 2 others Vs Attorney General and 6 others Misc. Cause No. 106 of 2010, where Justice Yorokamu Bamwine as he then was held that;
“ It is trite Law that Judicial Review is not concerned with a decision in issue perse but with a decision making process . Essentially, Judicial Review involves assessment of a manner in which the decision is made; it is not an Appeal and the Jurisdiction is exercised in a supervisory manner, not to vindicate rights as such, but to ensure that public powers are exercised in accordance with basic standards of legality, fairness and rationality.
The purpose of Judicial Review is to ensure that the individual receives fair treatment and not to ensure that the Author, after according fair treatment, reaches on a matter which it is authorized or enjoined by Law to decide on itself a conclusion which is correct in the eyes of the Court. ”That the essence of the extract was not about decisions perse but the fair treatment the Applicant has to receive in Administrative bodies . The essence of Judicial Review is to ensure that public powers are exercised with basic standards of Legality, fairness and rationality.
Counsel Munungu thus submitted that this Court has to investigate whether the Conduct of the Board of the UPDF while handling the Applicant’s Application adhered to the standards of Legality, fairness and rationality and that if not then their conduct is amenable to Judicial Review. Counsel Munungu also cited the case of Denis Bireigye Vs Attorney General (supra) to support his contention that substantive principles of Judicial Review are simply that the decision maker must act in accordance with the Law fairly and reasonably.
That the key word is ‘act’ and the question to be answered by this Court is whether on receipt of the Application for retirement, the Respondent Commissions Board acted in accordance with the Law fairly and their conduct was reasonable and if the answer is no, then their conduct is amenable to Judicial Review.
Counsel Munungu further submitted that Administrative actions and processes that are contrary to the Law are amenable to Judicial Review even where there is no decision.
Counsel for the Applicant also contended that the Respondent’s submission on this issue is that for a matter to qualify for Judicial Review there has to be a decision in his view is misconceived.
Counsel contended that in the case of Denis Bireije Vs Attorney General, there was no decision, it was a mere act of interdiction. That the Attorney General in that case had raised a similar objection that there was no decision because there had not been an inquiry , that the Court in that case while dismissing the objection held that grounds for interdiction are subject to Judicial Review.
Counsel Munungu also contended that in the case of Kuluo Joseph and 2 others Vs Attorney General and 6 others Misc. Cause No. 106 of 2010, there was no decision but a failure to appoint a Board in accordance with the Law , it was held that the failure was amenable to Judicial Review.
Counsel Munungu further contended that Counsel for the Respondent gave the correct position and concurred with the Applicant when he cited the case of Fuelex Uganda Limited Vs Attorney General and Anor Misc. Cause No. 048 of 2014, and submitted that the remedy of Judicial Review is not concerned with the merits of the decision complained of but rather the decision making process.
He thus submitted that Judicial Review is concerned with a whole sum conduct tainted with illegality, irrationality and procedural impropriety, then the remedy of Judicial Review can be invoked.
That the decision to keep quiet is also a decision only that the decision to keep quiet is illegal because it contravenes section 66 of the UPDF Act ,is irrational and tainted with procedural impropriety.
That the failure by the Board to convene and consider the Applicant’s Application, failure to adhere to the 90 days Rule is oppressive, captious and vindictive.
Counsel Munungu went ahead to quote the case of Denis Bireije Vs Attorney General ,where Justice Okumu Wengi held that,
“Once a complaint is arguable and discloses a cause of action, a way must be found to accommodate a citizen whose rights are allegedly trampled upon even for the purpose that other citizens become aware,” to support his contention that this is a proper Application for Judicial Review.
With regard to the aspect of Resignation of Commission visa vi retirement, Counsel Munungu contended that the Respondent is submitting semantics and Legal niceties and not substance.
That the way an officer can cease to be a member of the UPDF forces are first under S. 65 of the UPDF Act, S.66, S.67 and S. 68.
That the Applicant here clearly falls under S. 66 which says that the Applicant may in writing tender his or her resignation to the Board. That the word ‘MAY’ connotes that the Application can even be made orally. That the section does not give the format of the Application meaning that it can even take any format.
That the act does not spell out the language in which the Application can be made. Counsel thus contended that the Application can thus be made in Swahili, English, Luganda and others.
Counsel Munungu used a Luganda illustration which is that it would be;
“ Okusabaokuwumulaokuva mu majje.”
That this means that when making this Application, whether you use the word resign, retire or use vernacular which can combine all of them.
Counsel submitted that that one can decide to head the Application in either retirement or resignation but the content should be clear, that is, seeking permission to retire and that that is what the Applicant did as per Annexure ‘A’ to the Application.
That the Chief of defense forces had no doubt or misconception about the Application.
That they understood what the Application was about and that that is why they said that your Application before us has been forwarded to the Commander in Chief for guidance, which is illegal but serves to show that what he wanted was understood.
Counsel cited Regulation 28 of the UPDF (Conditions of Service) (Officers) Regulations SI 307-2 which operationalizes S. 66 which stipulates that the Board may permit any officer to resign his Commission at any stage or to retire on pension after a minimum of 13 years of reckonable service.
That the word retirement is used to mean a person serving for 13 years is eligible to pension. That the word retire doesn’t create a separate procedure.
Counsel for the Applicant thus added that the Respondent wants to use the two words either to confuse Court or himself.
That Commission is the means by which one becomes a serving officer and that should you desire to be released, one goes to S. 66 and make the Application to the Board that the Applicant applied in accordance with the Law but the Respondent has decided to put himself above the Law and that that cannot be sanctioned by this Court.
Counsel for the Applicant thus prayed that Court takes Judicial Notice that not all officers have a command of English and can use the Local Language and can use retire or resign that translate in the same meaning.
Counsel Munungu thus in his conclusion contended that the observation in this issue is redundant and has no bearing on the Application and he also prayed that Court gives S. 66 a purposive Construction and hold that failure to respond to the Application amounted to unreasonableness.
I have critically looked at the Law Applicable to Judicial Review.
Judicial Review has generally been defined as;
“The Jurisdiction of the superior Court to review the acts, decisions and omissions of public authorities in order to establish whether they have exceeded or abused their powers. (See Cases and Materials on Constitutional and Administrative Law by Micheal J. Allen , Brian Thompson and Bernadette Walsh third Edition Pg 456.)
Judicial Review has also been defined in “Civil Procedure and Practice in Uganda” by M. Ssekaana & S.N Ssekana pg 358 as;
“A nature of proceedings by means of which the High Court exercises its Jurisdiction of supervising inferior Courts , Tribunal’s and other public bodies , commanding them to do what their duty requires in every case where there is no specific remedy and protecting the liberty of the subject by speed and summary interposition.”
In the instant case, Counsel for the Respondent objected to his Application as not being amenable to Judicial review and contended that the Application is prematurely before he Court as there is no decision passed yet in response to his Application for retirement which he is now seeking to subject to Judicial Review.
Having perused through the documents on Court record and listened to the extensive arguments of both Counsel on this issue, I am of the considered opinion that this Application is properly before this Court as Article 42 of the Constitution of Uganda gives a person a right to just and fair treatment in Administrative Tribunals.
And Section 36 which provides for Judicial Review and states that;
“The High Court may make an Order as the case may be, of
- Mandamus, requiring an act to be done
- Prohibition, prohibiting any proceedings or o matter.
- Certiorari, removing any proceedings or matter to the High Court.”
In essence, the Courts seek by Judicial Review to ensure four principle objectives;
- That the acts of parliament have been correctly interpreted
- That the discretion conferred by Statute has been Lawfully exercised
- That the decision maker has acted fairly
- That the exercise of Power by a public body doesn’t violate Human Rights (see Constitutional and Administrative Law 9th Edition by Hilaire Barnett pg 545.)
In the instant case, S.66 of the UPDF Act No. 7 of 2005 provides that;
“An officer may in writing tender the resignation of his or her Commission to the Board but shall not unless otherwise ordered by Chief of Defense forces be relieved or appointment until he or she has received notification, in writing of the approval of his or resignation by the Board.”
2) The Board shall notify an officer of its decision on his or her Application to resign his or her commission within ninety (90) days after receipt of his or her application, and the approval of an application to resign the commission shall not be unreasonably withheld.”
In this case the Applicant applied to be retired in 2014. And it is now 2016, one and a half years later and he has not received a reply irrespective of the fact that other officers including those of the High Command have retired and continue to be retired but the Respondent has refused/ neglected to retire the Applicant. Thus failed to act in their duty and or acted unreasonably.
In these circumstances, I find that this Application is one that is amenable for Judicial Review and is properly before this Court. I am fortified by my findings by the above authorities I have stated which define Judicial Review and its essence which is inter alia to ensure that decision makers have acted fairly and the exercise of Powers by public bodies does not violate Human Rights.
1ssue No. 3: Whether the Respondent’s actions of refusal to pay the Applicant’s salary and other benefits and withdrawal of his guns, uniforms and refusal to deploy him including failure to provide him with transport , housing allowance amount to constructive discharge of the Applicant from the UPDF?
In this regard Counsel for the Applicant submitted that it is irrational that the Respondent would keep quiet about the Applicant’s Application, withdraw guns and uniforms from him, deny him all his benefits and claim he is still a serving officer.
He submitted that there is no master servant relationship nor employee/ employer relationship when the alleged employee has no office, is not deployed, not compensated or even paid any benefits.
That that action is in defiance of logic and accepted moral standards.
That by the mere fact that he has sat at his home for several years, the Respondent has demonstrated that it does not need his services any more, that if he is not in service then he is impliedly in prison.
In addition Counsel Mushabe for the Applicant submitted that the cumulative effect of all the actions of the Respondent lead to one construction that is “ the doctrine of Constructive Discharge”
In order to support his contention on the doctrine of Constructive discharge , Counsel Mushabe cited the case of a Common wealth Jurisdiction of David M. Porter Vs New Brunswick Legal Aid Services Commission SCC 10/ 20150 1 SCR 300,
In that case Porter had been given indefinite leave even if he was being paid. And the Court on its page 4 of its decision held that;
“ In light of the indefinite duration of his suspension, of the fact that the Commission failed to act in good faith in so far as it withheld reasons from him and of the Commission’s concealed intention to have him terminated , the suspension was not authorized by his employment contract nor did the Commissioner have the authority whether express or implied to suspend Porter indefinitely with pay and that suspension was a substantial change to the Contract, which amounted to constructive dismissal.”
Counsel Mushabe contended that the Applicant’s situation in this case is more outrageous and aggravating that here the Applicant is not even paid.
He further submitted that as in the case of Porter (supra) it was further held that the first branch for the test of Constructive Dismissal is that the Employer’s Unilateral change must be found to constitute a breach of employment and that if it does not constitute such a breach, it must be found to substantially alter an essential term of the contract. That for the second step of the analysis, the Court must ask whether at the time when the breach occurred, a reasonable person in the same situation as the employee would have felt that the essential terms of the employment contract were being substantially changed.
Counsel further contended that under paragraph 5 of Porters case, (supra) Constructive dismissal can take 2 forms that is;
- That of a single unilateral act that breaches an essential term of employment
- A series of acts that if taken together show that the employer intended to no longer be bound.
That in Porter’s case Court further held that a finding of constructive dismissal does not require a formal termination but a unilateral act by the employer to substantially change the contract of employment.
Counsel Mushabe submitted that the Applicant’s terms in this case had been substantially changed by the Respondent like all the benefits the Applicant is entitled to as per the UPDF (Conditions of Service ) (officers) Regulations SI 307-2 , that is allowances , accommodation, Rent, housing allowance, annual and other leave , medical treatment and trainings.
That withdrawing all those entitlements is a fundamental breach of the employer- employee relationship.
Counsel Mushabe further referred Court to page 25 of David Porter’s case where Court held that when an employee’s conduct evinces an intention no longer to be bound by the employment contract, the employee has a choice of either accepting that conduct or changes made by the employer or treating the conduct or changes as a repudiation of the Contract by the employer and suing for wrongful dismissal.
That while relying on the case of re Rubel Bronze and Metal Co. and Vos , 1 K.B 315 at pg 322, Court stated that since the employee has not been formally dismissed, the employer’s act is referred to as Constructive Dismissal . That the word ‘Constructive’ means that the Dismissal is a Legal Construct , that that is why the Applicant in this case is pleading to this Court to infer that Legal Construct.
Counsel while still referring to the Porter’s case where it was held at pg 164 that Constructive Dismissal may also be established not only on the basis of an actual important breach but also by conduct.
That in the instant case, the Applicant has pointed out specific areas and Regulations which have been breached by the Respondent
Counsel went ahead to cite Porter’s case wherein it was upheld that it is Court’s function to look at the employer’s conduct as a whole and determine whether its effects judged reasonably and sensitively is such that the employee cannot be expected to put up with it.
Counsel contended that it has been argued in the Respondent’s Affidavit in Reply that the Constructive Discharge might open a flood gate of suits.
In response to this aspect Counsel then cited the case of Kyambogo University Vs Prof. Isaiah Omolo Ndiege Civil Application No. 341 of 2013, where Justice Kakuru held that ,
“This Court cannot take decisions under threats. This is absolutely unacceptable. This Court must make Orders that are Legal, Just and Equitable irrespective of what happens outside the Court room. That is why the symbol of Justice is a blind folded woman with a sword in one hand and a scale on the other. In order to be objective, Justice must be blind otherwise Courts would loose their objectivity.”
Counsel Mushabe thus submitted that the Respondent’s actions/omissions is the Legal construction that the Applicant has been constructively discharged from the UPDF where his actions are no longer required, that the Respondent cannot claim that the Applicant is still in his employment when the Applicant no longer renders services to the UPDF and that the Respondent no longer pays him. That thus the claim of employment has no legal Justification and that Court should find and grant his prayers as per the Notice of Motion.
In reply Mr. Kalemera the Learned State Attorney contended that Constructive discharge as per the on line Legal Definition is defined as;
“Being generally when working Conditions are so intolerant as to amount to a firing despite a lack of formal termination Notice.”
That in the Authority of David Potter Vs New Brunswick Legal Aid Services Commission (supra), under paragraph 3 of pg 4 states that the test of Constructive dismissal has two branches that is;
- That the employer’s unilateral change must be found to constitute a breach of employment contract and ,
- If it does constitute such a breach, it must be found to substantially alter an essential term of contract. That for this step of analysis, the Court must ask whether at the time that breach occurred,, a reasonable person in the same situation as the employee would have felt that the essential terms of the employment contract were being substantially changed.
While referring to Article 210 (b) of the 1995 Constitution of Uganda that specifically empowers Parliament to make Laws regulating the recruitment, appointment, promotions, discipline and removal of a member of the UPDF, Counsel contended that the UPDF Act No. 7 of 2005 which is all encompassing regarding matters of retirement of officers of the UPDF makes no provision for Constructive Discharge of an officer at any time during his term of engagement.
Counsel Kalemera submitted further that section 67 of the UPDF Act, provides for discharge of an officer at any time during his term of engagement that the section gives 8 grounds upon which an officer can be discharged.
That these grounds can only be exercised by the Defense forces Council at their own discretion.
He thus submitted that the principle of Constructive Discharge is alien to the Law governing retirement of the UPDF officers and cannot in any way be invoked by the Applicant as a remedy and he prayed that it be dismissed.
That the justification for the absence of Constructive discharge under our Laws is because the functions of the UPDF are stipulated under Article 209 of the Constitution as to preserve and defend the sovereignty and territorial integrity of Uganda.
He then cited the case of Attorney General Vs Major General David Tinyefunza Constitutional Appeal No. 1/ 1997, where Justice Kanyeihamba as he then was cited with approval the English case of Queen Vs Cumming Exparte Paul (1897) 19 Q.P 13, where a naval officer submitted a letter of resignation to the relevant authority and before the Authority could react to the letter, he abandoned the ship in which he held the Commission on the ground that he had already resigned. And Court held that his purported resignation had not been effective therefore, for an officer to resign or leave the armed forces, the officer cannot do so at will or without the formalities and procedures as prescribed by Law being complied with would be a matter of great danger for National security. If it were to be held by anyone or Authority, that members of the UPDF or officers could resign or be removed at will and any how outside the Law.
That that was the majority position of the five Justices of the Supreme Court in Constitutional Application No. 1 of 1997 Attorney General Vs David Tinyefunza where the Applicant herein had attempted to resign from the UPDF by way of ordinary letter to the Commander in Chief .
So the Applicant is not entitled to a remedy of Constructive discharge.
In rejoinder to this issue, Counsel Munungu for the Applicant submitted that the Respondent’s submissions that the Law does not provide for Constructive Discharge are incompetent and misconceived.
That section 14(2) v of the Judicature Act gives sources of Law in Uganda as ;
- Written Law
- Common Law
- Doctrines of Equity
- Established and current customary Law.
That section 14 (c ) of the Judicature Act further provides that the Jurisdiction of the High Court shall be exercised where there is no express Law in conformity with principles of Justice Equity and good Conscience.
He further contended that section 33 of the Judicature Act gives the High Court Powers to grant all such remedies to determine all matters properly before it.
That Counsel for the Respondent was under a duty to determine whether it is repugnant and having failed to do so and the Doctrine of Constructive Discharge being a Common Law Remedy the High Court has Powers to grant it as per section 33 of the Judicature Act.
In rejoinder Counsel Mushabe for the Applicant, submitted that there is no employment between the Applicant and the Respondent as per the definition of employment under the Black’s Law Dictionary.
That the Applicant is neither engaged, occupied, posted nor is his time consumed with the UPDF duties as required by this definition.
That he just stays home, he is unemployed , does not earn salary , he no longer provides services to the UPDF and the UPDF no longer requires him to provide a service to them nor do they pay him wages.
That Court makes a finding that the Applicant is no longer a UPDF employee and has been constructively discharged.
Constructive Discharge exists in Common Law as has evidenced by the various cases cited by Counsel for the Applicant. And
According to the Black’s Law Dictionary 9th Edition at page Constructive Discharge is defined to mean a termination of employment brought about by making the employees working conditions so intorable that the employee feels compelled to quit.”
Since it exists at common Law, according to section 14 of the Judicature Act, it gives the sources of Law in Uganda to include Common Law ( see section 14(2) of the Judicature Act.)
It therefore follows that Constructive Discharge being part of the Common Law it is Applicable in Uganda by Virtue of Section 14(2)b (1) of the Judicature Act and
Section 14 ( 2)c of the Judicature Act, which empowers the High Court to exercise its Jurisdiction in conformity with the above principles where there is no express Law but in conformity with the principles of Justice.
Moreover, Learned Counsel for the Respondent has not shown that the Concept of Constructive Discharge conflicts in any way with the principles of Natural Justice.
As regards the granting of the prayer in this respect, leading to an exodus of officers wanting to retire.
The Applicant in his pleadings listed other officers who have retired including those in the High Command and it has not led to an exodus of officers who want to retire but it is just mere speculation on the part of the Respondent which is not supported by any evidence.
So that argument is disregarded as speculative.
And secondly the Respondent also contended that the concept of Constructive Discharge does not exist in the UPDF that too is mere speculation because each case can be taken in its own circumstances.
The cases cited by Counsel for the Respondent in this instance can be distinguished from the present.
In the case of Queen Vs Cumming, Exparte (supra) , the naval officer wrote the letter of resignation to the relevant authority and before they could react to the letter, he abandoned the ship in which he had Commission.
In the present case, the Applicant applied to resign and has been patiently waiting for a reply but it is not forth coming.
Moreover, it is the 2nd time he is attempting to retire. His first time being in 1996 and it was refused that time also because he just wrote a letter to the Commander in Chief.
In addition to this, the Respondent’s failure to respond to him while retiring other officers both at his rank and lower, is a clear manifestation of discrimination against the Applicant contrary to Article 21(1) & (2) of the Constitution of Uganda.
The Respondent did not rebut these allegations in their reply even when cross examined in Court, the Chief of Legal services could not give a clear explanation as to why the Applicant’s salary and emoluments are not paid but he instead referred Court to the Chief of Defense Forces.
In view of the above, I am compelled to find and Court finds that the Applicant is entitled to the Common Law remedy of Constructive Discharge and the second objection too is overlured.
Issue 4: That brings me to the final issue as to whether the Applicant is entitled to the remedies sought?
The Applicant in his Notice of Motion filed an Application for Judicial Review and applied for the following remedies;
- A declaration that the Applicant ceased to be an officer of the UPDF on 8th April, 2015, since the 90 days within which the Respondent ought to have officially communicated his decision to him had expired.
- A declaration that the Respondent’s Commission and or omission to communicate its decision to the Applicant within 90 days , but continuing to discharge others within that period contravened Articles 2(2) , 21, 24, 25(1) & (2) , 40(3)c , 42 , 44(a) , (b) & (c) and 137(3)b of the Constitution of the Republic of Uganda.
- A declaration that the Respondent’s Commission and/or omission to communicate its decision to the Applicant , refusal to pay his salary and other benefits , withdrawal of his army uniforms and guns , refusal to deploy him, failure to provide him with means of transport, meals and housing , all amounted to Constructive Discharge of the Applicant from the Uganda People’s Defense Forces.
- A declaration that since the Respondent constructively discharged the Applicant, that the Applicant is entitled to a Discharge Certificate accordingly.
- A declaration that since the Respondent discharged the Applicant, then the Applicant is entitled to his salary arrears, emoluments and his retirement benefits.
- An Order of mandamus ordering the Respondent , officers under them , the Chief of personnel and Administration to hand over the Applicant’ Discharge certificate to the Applicant
- An order of prohibition prohibiting the Respondent, the Chief of Defense Forces from, Chief of staff –LF and all other officers under them for purporting to assign, deploy, transfer or control the Applicant as an active officer of the UPDF contrary to the Law.
- An order directing the Respondent to pay the Applicant his retirement benefits and/or arrears due and owing.
- An order directing the Respondent to calculate and pay the Applicant retirement benefits having served for at least 34 years and pay him.
- General damages for wrongful withholding of the Applicant in the UPDF from 8thApril 2015, until the date of Judgment
- An order that the Respondent pays 20% interest of the sum in 5, 8 & 9 above
- Costs of the suit.
The Applicant also prayed for general damages or the wrongful withholding of the Applicant in the UPDF from 8th April, 2015 until the date of the Judgment.
On this aspect of damages, counsel Munungu submitted that since the Law under the Judicial Review Rules allows the Applicant to claim for General damages, that in the circumstances looking at how the Respondent treated the Applicant after refusing to respond to his Application and locked him up for two months in prison, mental distress, humiliation and anxiety that he suffered is by no doubt enormous.
That it is the duty of the Court to curb the high handed nature of the state by awarding appropriate damages in order for the state to realize that Citizens Rights matter and impunity does not pay.
He thus prayed for court to award damages of 1 billion shillings and for costs of this Application.
In reply to this issue Counsel Kalemera for the Respondent while citing the case of Kampala University Vs National Council for Higher Education Misc. Cause No. 053 of 2014, where Justice Musota while dealing with the issue of general damages in Judicial Review proceedings held that;
“It is his considered view that damages that can be awarded under the Rules 8 are those that are not proven by detailed material facts or that require one to set out materials.”
That he further held that an Application for Judicial Review cannot support a claim for general, punitive and exemporary damages that it appears that this type of damages envisaged under the Rules could be special damages.
Counsel contended that the reason why Court has held that General damages cannot be awarded in Judicial Review proceedings is because Applicants come to Court by way of Affidavit evidence and that it would be unfair for the Applicant to expect court to award an amount of money like one billion shillings taxpayer’s money with no single thread of evidence supporting any loss suffered by the Applicant. He thus prayed that damages and interest are disallowed by this Court.
In rejoinder Counsel Munungu on the issue of damages took an exception from Justice Musota’s reasoning as quoted by the Respondent
He submitted that the Judge erroneously held that only special damages could be claimed in Judicial Review.
That because he envisaged that damages envisaged under Judicial Review are those that do not need strict proof, counsel Munungu submitted that damages that do not need strict proof are general damages.
That special damages under the Law should be pleaded and strictly proved and that strict proof cannot be done here because evidence is by Affidavit.
That it is not true that it is not proper to seek general damages but instead it was very proper
Counsel Munungu further cited the case of Kayonza Distributors Vs Attorney General Civil Suit No. 211 of 2008, where Justice Musota held that the Legal principle for the grant of general damages that they are compensatory for the damage and inconvenience suffered so that he or she is put in the same position that he had been before.
That while quoting the Supreme Court case of Fredrick Zaabwe Vs Orient Bank Ltd SCCA No. 4 of 2007, where the Respondent had wrongfully grabbed the Appellant’s house, which was his home and office, the Supreme Court found that mortgaging and sale of the Appellant’s house was illegal oppressive and unjustifiable and Court awarded the Appellant General damages of 200,000,000/- ( two hundred million shillings.)
And in that case where state police grabbed the plaintiff’s motorcycle with no good reason, Justice Musota awarded 40,000,000/ (forty million shillings) as general damages.
Counsel for the Applicant thus submitted that in the instant case, the Respondent willfully refused to respond whatever it could have been but kept quiet, withdrew all the benefits, arrested the Applicant, locked him up in prison, refused to grant him bail thus the resulting loss and inconvenience cannot be over emphasized because it is obvious and he prayed Court finds the claim of 1 Billion shillings as general damages reasonable.
According to Rule 8 of the Judicature Judicial Review Rules, damages can be granted. Granted that Court can grant damages, I do concur with Counsel for the Applicant that if the special damages need strict proof and cannot be done by Affidavit evidence then there is no reason why the Court cannot grant general damages as applied by Justice Musota in the case of Kampala University (supra) because special damages are the ones that need strict proof.
In the instant case the Applicant is a senior Citizen of Advanced age, he has spent the best part of his life in service of government that is 34 years in the police and army. He was even injured during the Liberation war,
He is a father with dependants to look after.
The Respondents have refused and or neglected to respond to his Applicationfor retirement, he was arrested, thrown in prison, prosecuted and denied bail. In spite of his responsibilities he was denied a salary allowance that he was entitled to.
Such stress, harassment and humiliation isenormous and can only be atoned for by an award of damages.
In view of the fact that they have not rebutted those allegations, court can safely conclude that they are admitted.
The Applicant has asked for 1 billion shillings only as General damages.
Counsel for the Respondent objected to this amount on the basis that there is nothing to justify the expenditures of tax payer’s money to pay the Applicant that money yet the Applicant has shown the violations to him.
However, in view of what I have stated above, Court is of the considered opinion that General damages of 750,000,000/- (seven hundred fifty million shillings ) are appropriate to atone for the stress, harassment and humiliation suffered by the Applicant,
In view of the above this Application is allowed and court makes the following Orders;
- It is hereby declared that the Applicant ceased to be an officer of the UPDF on 8th April, 2015 , since the 90 days within which the Respondent ought to have officially communicated his decision to him had expired
- It is hereby declared that the Respondent’s Commission and /or omission to communicate its decision to the Applicant within 90 days , but continuing to discharge others within that period contravened Articles 2(2) , 21, 24, 25(1) & (2) , 40(3)c , 42 , 44(a) , (b) & (c) and 137(3)b of the Constitution of the Republic of Uganda.
- It is hereby declared that the Respondent’sCommission and/or omission to communicate its decision to the Applicant, refusal to pay his salary and other benefits, withdrawal of his army uniforms and guns, refusal to deploy him, failure to provide him with means of transport, meals and housing, all amounted to Constructive Discharge of the Applicant from the Uganda People’s Defense Forces.
- It is hereby declared that since the Respondent constructively discharged the Applicant, that the Applicant is entitled to a Discharge Certificate accordingly.
- It is hereby declared that since the Respondent discharged the Applicant, then the Applicant is entitled to his salary arrears, emoluments and his retirement benefits.
- An Order of mandamus is hereby issued directing the Respondent, officers under them to immediately hand over to the Applicant his discharge Certificate.
- It is hereby ordered that the Respondent refunds the Applicant his pension contributions together with interests accruing there from.
- It is hereby ordered that the Respondent is prohibited together with Chief of Defense Forces, Chief of staff –LF and all other officers under them for purporting to assign, deploy, transfer or control the Applicant as an active officer of the UPDF contrary to the Law and from prosecuting him.
- It is hereby ordered that the Respondent pays the Applicant his salary arrears that were not paid to him until recall and replacement in parliament.
- The Respondent is also directed to pay interest of 20% on v, vii, ix above from the date of the Ruling until payment in full.
- The Respondent is also to pay the Applicant’s costs of the suit.
M.C OGULI OUMO
- Mr. Mushabe David, Mr. Munungu Kenneth , Mr. Kasirivu Yunusu and Mr. Baale Musa Counsel for the Applicant.
- Applicant present
- Mr. Kalemera George Counsel for the Respondent.
- . Leut. Mogi Brian representative of the Respondent (UPDF).
- Brigadier Ramadhan Kyamulasire.