Ahweera v Attorney General (Miscellaneous Cause 102 of 2023) [2024] UGHCCD 193 (31 October 2024)

5 THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

(CIVIL DIVISION)

MISCELLANEOUS CAUSE NO.102 OF 2023

AHWEERA STEPHEN :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT

10 VERSUS

ATTORNEY GENERAL ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

BEFORE: HON. JUSTICE ESTA NAMBAYO

RULING

The Applicant, Ahweera Stephen, brought this application under Articles 28(1), 44, 44(c) 15 and 50 of the 1995 Constitution, Section 36 of the Judicature Act, Sections 38 of the Judicature (Amendment) Act 3/2002 and Rules 3, 4, 5, 6 & 7 of the Judicature (Judicial Review) Rules S. I 11/2009 against the Attorney General seeking for: -

- 1. An Order of certiorari quashing the Respondent's decision to discharge the Applicant's employment with the Uganda Police Force. - 20 2. A declaration that the Applicant's discharge from Uganda Police Force was wrongful, unfair and unlawful. - 3. That the Respondent's continued non-payment of the Applicant's terminal benefits amounts to continuous illegal and cruel, inhuman and degrading treatment contrary to Article 24 of the Constitution 1995, as amended.

25 4. A writ of mandamus compelling the Respondent to pay the Applicant all accruing emoluments including, but not limited to gratuity, pension, compensation in lieu of the notice of termination, severance allowance, repatriation allowance, compensation for failure to conduct a fair hearing and others incidental thereto.

30 5. The prerogative order of mandamus issue against the Respondent compelling it to pay the Applicant all his outstanding salary arrears (Ugx. 900,000/=for

each month) from the time of cancellation of his deployment in Kayunga District as District Police Commander until he was duly discharged from the Uganda Police Force.

- 35 6. A declaration that the Respondent acted illegally and with procedural impropriety when it made a decision to dismiss the Applicant from the Uganda Police Force basing on the offence of neglect of duty which he was never charged of. - 7. The Respondent pays the Applicant aggravated and general damages. - 40 8. The Respondent pays the interest on all monetary sums in (j) above. - 9. Costs of the application be provided for.

The grounds of the application are laid down in the affidavit by Mr. Ahweera Stephen in support of the application but briefly are that: -

- 1. The Applicant joined Uganda Police Force in 2014 as a cadet trainee and was 45 successfully passed out as a police cadet officer in March, 2015. - 2. The Applicant rose in different ranks as a police officer serving in different capacities in different parts of the country until he was unlawfully discharged by the Respondent from the Uganda Police Force. - 3. The Respondent on the 14th day of November, 2022, passed a decision to 50 dismiss/discharge the Applicant from the Uganda Police Force. - 4. The Respondent did not accord the Applicant a fair hearing as he was never charged with the offence of neglect of duty which led to his dismissal from the Uganda Police Force. - 5. The Respondent breached the principles of natural justice when it failed to 55 accord the Applicant an opportunity to defend himself as the decision taken was affecting his career.

- 6. The decision and the decision making apparatus of the Respondent was void abinitio, oppressive rash, highhanded, rudimentary, archaic, wrongful, illegal, malicious, unscrupulous, ultravires and thus null and void. - 60 7. The Respondent has no plausible excuse forbidding this Honourable Court from retting out the judicial review reliefs herein sought. - 8. The Respondent acted illegally and with procedural impropriety by passing a decision dismissing/discharging the Applicant from the Uganda Police Force without according him a fair hearing. - 65 9. It is in the interest of justice that the orders sought in this application are granted.

This application proceeded ex-parte after the Respondent failed to file its affidavit in reply and attend court for hearing.

Brief background to the application.

70 The brief background to this application is that the Applicant was appointed as a Cadet Police Officer at the Uganda Police Force in 2015. On the 9th May, 2022 the Applicant was dismissed on grounds of neglect of duty. It is the Applicant's contention that he was not given an opportunity to be heard before dismissal, hence this application.

Representation

75 Learned Counsel Wamala Samuel appeared for the Applicant and filed written submissions as directed by Court.

Issues for determination are as follows: -

- 1. Whether this application is amenable for Judicial Review - 2. Whether the Respondent's impugned decision of dismissing the Applicant - 80 from the Uganda Police Force was marred with procedural impropriety, an illegality and violated the principles of natural justice. - 3. Whether the Applicant is entitled to his salary arrears from January, 2021 to date.

- 4. Whether the Applicant is entitled to terminal benefits as a result of his 85 discharge/dismissal from the Uganda Police Force - 5. Whether the Applicant is entitled to the remedies sought.

Resolution of issues

Issue 1: Whether this application is amenable to Judicial Review

Rule 3 of the Judicature (Judicial Review Rules 2019), defines a Public body to include 90 the Government, any department, services or undertaking of the Government.

In the case of Arua Kubala Park Operators and Market Vendors' Cooperative Society Limited-v- Arua Municipal Council MC No.3 of 2016, Stephen Mubiru, J, observed, that: -

"judicial review is premised on allegations that a public body acted without

- 95 powers (lack of Jurisdiction); went beyond its powers (exceeded Jurisdiction); failed to comply with applicable rules of natural justice; proceeded on a mistaken view of the law (error of law on the face of the record); or arrived at a decision so unreasonable that no court, tribunal or public authority properly directing itself on the relevant law and acting reasonably could have reached it" - 100 In Clear Channel Independent Uganda –v- PPDA, H. C. M. A No. 380 of 2008 and Wanyama George Stephen –v- Busia District Local Government, H. C. M. A No. 022520 of 2011 it was held, inter alia that;

"The right to apply for judicial review is constitutional in Uganda by virtue of Article 42; which empowers anyone appearing before an administrative official or body a right to

105 be treated justly and fairly with a right to apply to a court of law regarding the administrative decision taken against such a one. This right, to a just and fair treatment in administrative decisions cannot be derogated according to Article 44."

The Judge went on to note that;

"The remedy of judicial review is discretionary in nature and can only be granted on 110 three grounds namely: - illegality, irrationality and procedural impropriety with guiding

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principles like: - common sense and justice, whether the application is meritorious, whether there is reasonableness, vigilance and not any waiver of rights by the Applicant."

Rule 7A (1) of the Judicature (Judicial Review) (Amendment) Rules, 2019, provides that the Court in considering an application for judicial review must satisfy itself 115 that: -

- (a) the application is amenable for judicial review, - (b) the aggrieved person has exhausted the existing remedies available within the public body or under the law and; - (c) the matter involves an administrative public body or official among others - 120 In this case, the Applicant seeks for Judicial review remedies on ground that the Respondent's officers in the Uganda Police Force discharged him from services as a Police Officer without giving him an opportunity to be heard.

Uganda Police falls within the provisions of Rule 7(A) (1) (c) of the Judicature (Judicial Review) (Amendment) Rules, 2019 and as such, considering the nature of complaint 125 raised by the Applicant, I find that this case is amenable to judicial review.

Issue 2: Whether the Respondent's impugned decision of dismissing the Applicant from Uganda Police Force was marred with procedural impropriety, an illegality and violated the principles of natural justice.

Counsel submitted that a number of Courts have held that the grounds upon which an 130 application for judicial review may be granted are illegality, irrationality and procedural impropriety. He relied on the cases of His Worship Aggrey Bwire –v- Attorney General & Anor. Civil Appeal No. 09 of 2009, Thigitho –v- Nebbi Municipal Council, HCMA No. 0015 of 2015 and submitted that accordingly, grounds a, b, c, d, e, f & h of the application and paragraphs 1-23 of the affidavit in support of the application invariably 135 show that the Applicant is challenging the decision of the Respondent in discharging/dismissing him as the dismissal was illegal, irrational, unfair and contrary to the rules of natural justice.

Counsel also relied on Article 214 of the Constitution, the case of Cecil David Edward Hugh –v- Attorney General, M. A No. 266 of 2013 and Section 44 of the Police Act 140 that establishes the Police Disciplinary Code of Conduct for the disciplinary control of the Police Force, and submitted that if any officer commits an offence or contravenes the governing Act, he or she must be subjected to a disciplinary committee, tried and punished accordingly. That in this case, the Applicant was surprised to receive a letter discharging him from the Police Force without any trial against him being conducted. 145 He referred to paragraphs 8-16 of the affidavit in support of the application and submitted that it is safe to conclude that the Applicant was condemned unheard and as such, the decision to discharge him was arrived at in total violation of the rules of natural justice.

Counsel further relied on the cases of O'Reilly –v- Mackman [1983] 2 AC 237 at 276, 150 A-G –v- Ryan [1980] QB 718, Twinomuhangi –v- Kabale District & Others (2006) HCB Vol. 1 page 130, Council of Civil Service Union –v- Minister for the Civil Service (1985) AC 375 (cited with approval in Mugabi Edward –v- Kampala District Land Board & Wilson Kashaya, M. C No. 18 of 2012, Election Petition Appeal No. 04/2009, Bakaluba Peter Mukasa –v- Nambooze Betty Bakireke, Amuron Dorothy –v- LDC, 155 M. C No. 042 of 2016, Charles Oloo –v- Kenya Posts and Telecommunications, C. A No. 56/1981 at page 4, Kampala University –v- National Council for Higher Education at page 22, HCMC No. 053/2014 and submitted that the Applicant's discharge constituted a violation of his constitutional right to be heard. That the position of the law is that where a decision is arrived at without affording the victim an opportunity to 160 be heard, such decision cannot stand regardless of whether the same decision would nevertheless have been made. That the procedure adopted by the Permanent secretary, Leut. General Musanyufu acting on behalf of the Respondent offended the rule that no person is to be condemned unless that person has been given prior notice of the allegations against him and a fair opportunity to be heard.

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165 He prayed that Court finds that the Respondent's impugned decision of discharging/dismissing the Applicant from the Uganda Police Force was marred with procedural impropriety, an illegality and violated the principles of natural justice.

Analysis.

Section 36 (1) of the Judicature Act Cap 13, provides for the power of the High Court 170 to issue orders under judicial review and it states as follows;

- (1) The High Court may, upon application for judicial review, grant any one or more of the following reliefs in a civil or criminal matter- - (a) an order of mandamus, requiring any act to be done; - (b) an order of prohibition, prohibiting any proceedings or matter; or - 175 (c) an order of certiorari, removing any proceedings or matter into the High Court. In the case of National Drug Authority & Another -v- Nakachwa Florence Obiocha CA No. 281 & 286 of 2017, the Court of Appeal held that;

"Judicial review is concerned with the decision-making process and not the decision itself. That the purpose of the remedy of judicial review is to ensure that the individual

180 is given fair treatment by the authority to which he or she has been subjected." In Kuluo Joseph Andrew & 2 Others –v- Attorney General & 6 Others MC No. 106 of 2010, Bamwine, J, (as he then was), stated that: -

"It is trite that Judicial Review is not concerned with the decision in issue perse but with the decision making process. Essentially judicial review involves the assessment of the

185 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."

In the case of Dr. Julianne Sansa Otim – v- Makerere University Misc. Cause No. 258 of 2016 Court noted that;

190 "for an application for judicial review to succeed, the Applicant must demonstrate that the decision arrived at was tainted with illegality, irrationality or procedural impropriety".

In the case of Namuddu Hanifa -v- The Returning Officer, Kampala District and 2 Others, Miscellaneous Cause No. 69 of 2006, court noted that;

"Illegality is when the authority that made the decision being questioned committed an 195 error of law in the process of making that decision. Acting ultra-vires or contrary to the provisions of the law or its principles are instances of illegality.

Irrationality goes to unreasonableness of the decision taken or act done in that no reasonable decision making authority, addressing itself to the same facts and the law before it, would make such a conclusion. The decision being questioned is in defiance 200 of logic and/or acceptable moral standards.

- Procedural Impropriety is when there is a failure to act fairly on the part of the decisionmaking authority in the process of taking a decision. The unfairness may be in nonobservance of the rules of natural justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere to and observe - 205 procedural rules expressly laid down in a statute or legislative instrument by which such authority exercises jurisdiction to make a decision." Section 49 of the Police Act establishes a police disciplinary court and states as follows;

(1) There shall be established a police disciplinary court at every police unit.

(2) For purposes of subsection (1), there shall be established police disciplinary courts,

- 210 whenever a breach of the code occurs at any place and time within the jurisdiction of the following police units— - (a) force headquarters; - (b) regional or extra regional police headquarters; - (c) district or division headquarters; - 215 (d) police stations; and - (e) police post or police detachment. - (3) A police disciplinary court established under subsection (1) shall— (a) hear and determine any disciplinary matter involving a person subject to the code; (b) have powers to award any punishment authorised by or under this Act.

220 My understanding of the above provisions of the law is that where a police officer commits an offence, he/she is subjected to a hearing and disciplinary action if found guilty.

In paragraphs 09 – 21 of his affidavit in support of the application, the Applicant states that he was dismissed from service without being informed of any offence that he 225 committed and/or appearing before the Disciplinary Committee for a hearing. That he only received a discharge letter from the Permanent Secretary Ministry of Internal Affairs through the Inspector General of Police on the 14th of November, 2022. This letter is annexure "G" to the affidavit in support of the application.

The Respondent did not file its affidavit in reply although there is evidence that they were served with the application. On the 3rd 230 of July, 2023 when the matter was called for hearing, Ms. Harriet Nalukenge, a State Attorney from the Attorney General's Chambers was in court on behalf of the Respondent. She sought for 2 weeks, which court granted to file the affidavit in reply. When the matter came up again on the 30th August, 2023, Ms. Nalukenge did not turn up. No reason was given for her absence in 235 court and no affidavit in reply had been filed. Court allowed the Applicant to proceed

ex-parte.

In the case of Samwiri Massa –v- Rose Acen (1978) HCB 297; court held that;

"Where certain facts are sworn to 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."

240 In this case, since the Respondent chose not to file its affidavit in reply, I find that the facts sworn to by the Applicant are admitted.

It is a fundamental principle of natural justice that no person should be condemned of any wrong unless he/she has been given an opportunity to be heard on the allegations against him/her.

245 In the case of Onyango Oloo –V- Attorney General [1986] EA 456 the Court of Appeal of Kenya noted that: -

"The principle of natural justice applies where ordinary people would reasonably expect those making decisions which will affect others, to act fairly and they cannot act fairly and be seen to have acted fairly without giving an opportunity to be heard ……………

250 There is a presumption in the interpretation of statutes that rules of natural justice will apply and therefore the authority is required to act fairly and so to apply the principles of natural justice"

The Applicant informed court that he was dismissed without being given an opportunity to be heard. I find no reason to doubt his evidence. I therefore find that the Respondent's

255 dismissal of the Applicant without giving him an opportunity to be heard was illegal as it contravened Art. 28(1).

Remedies

The Applicant sought for orders of certiorari, mandamus, terminal benefits, aggravated and general damages, interest and costs of this application.

260 Submissions

Counsel while relying on paragraph 16 of the Applicant's affidavit in support of the application submitted that ever since the Applicant's deployment was cancelled in January, 2021 to date, he has never been paid a salary. He prayed that this court orders the Respondent to pay the Applicant's salary arrears from the date of default until

265 payment in full.

He also prayed for an order of mandamus compelling the Respondent to pay the Applicant his gratuity and pension as he was supposed to earn and enjoy the same upon clocking mandatory retirement age. Counsel further prayed that a certificate of employment be issued to the Applicant since it's the Respondent who discharged him

270 prematurely and illegally, that compensation be issued to the Applicant for loss of income from the time of the illegal discharge to the time of retirement amounting to

Ugx. 259,200,000/=, general damages of Ugx. 600,000,000/= for the inconvenience, stress, embarrassment, physical and psychological torture including untold suffering meted to the Applicant, aggravated damages of Ugx. 800,000,000/=, interest on the 275 awards and costs of the application. For the above prayers Counsel relied on the cases of Florence Mufumba –v- Uganda Development Bank LDC No. 1228 of 2011, Kibimba Rice Ltd –v- Umar Salim, SCCA No. 17 of 1992, Takiya Kashwahiri & Anor. –v-Kajungu Denis, CACA No. 85 of 2011, Robert Coussens –v- Attorney General, SCCA No. 08 of 1999, Ntabgoba –v- Editor in chief of the New Vision & Anor. [2004] 2 EA

280 ²³⁴ and Francis Butagira –v- Deborah Mukasa, SCCA No. 06 of 1989. Analysis

I have already made reference to Section 36 (1) of the Judicature Act Cap 13.

Certiorari

Rule 3 of the Judicature (Judicial Review) (Amendment) Rules 2019, defines certiorari 285 as an order by Court to quash a decision which is ultra vires.

In the case of John Jet Tumwebaze –v- Makerere University Council and ors (Civil Application No. 78 of 2005), Ag. Justice Remmy Kasule (as he then was) defined Certiorari as a prerogative writ issued to quash a decision which is ultra vires or vitiated by an error on the face of the record.

290 In Stream Aviation Ltd -v- The Civil Aviation Authority MA No. 377 of 2008 (Arising from MC No. 175 of 2008) Justice V. F. Musoke Kibuuka (as he then was), held that; "the prerogative order of certiorari is designed to prevent the excess of or the outright abuse of power by public authorities. The primary object of this prerogative order is to make the machinery of Government operate properly, according to law and in the public

295 interest."

In this case, having established that the Applicant was discharged from the Uganda Police Force without being accorded a hearing and that his discharge was illegal, I would issue the prerogative order of certiorari quashing the Respondent's discharge of the

Applicant from employment with the Uganda Police Force without giving him an 300 opportunity to be heard.

Mandamus

Mandamus is a court order issued to compel performance by public officers of statutory duties imposed on them (See The Judicature (Judicial Review) (Amendment) Rules, 2019.)

305 In the case of Semwo Construction Company –v- Rukungiri District Local Government MC No. 30 of 2010, it was stated as follows: -

"mandamus is a prerogative writ to some person or body to compel the performance of ^a public duty. From the authorities, before the remedy can be given, the applicant must show a clear legal right to have the thing sought by it done, and done in the manner

- 310 and by a person sought to be coerced. The duty whose performance is sought to be coerced by mandamus must be actually due and incumbent upon that person or body at the time of seeking the relief. That duty must be purely statutory in nature, plainly incumbent upon the person or body by operation of law or by virtue of that person or body'^s office, and concerning which he/she possesses no discretionary powers. - 315 Moreover, there must be a demand and refusal to perform the act which it is sought to coerce by judicial review."

From the above case, the following must be established by the Applicant in order to obtain a writ of mandamus: -

- i. There must be a public duty; - 320 ii. The Applicant must have demanded and the Respondent must have refused to perform; - iii. The Respondent as public officer must have a public duty to perform imposed on him/her by statute or any other law but should not be a duty owed solely to the state but should be a duty owed as to the individual citizen. - 325 iv. The public duty imposed should be of an imperative nature and not a discretionary one;

- v. The Applicant must have locus standi, that is, he must have sufficient interest in the matter he is applying for; - vi. There should be no other appropriate remedy available to the Applicant. - 330 The Applicant in this case has not presented evidence to show that when he was illegally

discharged from the Police Force, he made a demand to be re- instated to his job and that his demand was declined by the responsible officer of the Respondent. Therefore, I find that the prerogative remedy of Mandamus to re-instate the Applicant to his job is not available.

335 Terminal Benefits

Counsel submitted that the Applicant should be paid gratuity and pension as he was supposed to earn the same at the time of his retirement.

Under S. 10 of the Pensions Act, one qualifies for gratuity and pension upon attainment of 60 years of service or upon attainment of the age of forty-five years if he or she has

340 served for a continuous period of ten years or more. Evidence on record shows that the Applicant joined the Police Force in 2014 and was discharged in 2022 which is a period of less than 10 years. He does not qualify for gratuity and pension.

Aggravated and General damages

In Charles Harry Twagira –v- Attorney General and Two Others [2008] UGSC 10 (9

345 July 2008) Tsekooko, JSC (as he then was) noted that;

"Prayer 12 sought for an Order that the respondents should pay to the appellant "general and exemplary damages for gross violation of (his) constitutional rights." In my experience at the bar and on the bench, I cannot understand how by his notice of motion the appellant would be able to call evidence to establish such damages without filing an

``` 350 ordinary suit." ```

In Eladam Enterprises Ltd –v- S. G. S (U) Ltd & Others Civil Appeal No. 20 of 2002, court noted that;

"damages for which a party is to be compensated must be pleaded and proved with cogent evidence by the party claiming them as being the direct result of the defendant's

355 wrongs. The damages ought to be proved and properly assessed by court." In his paper on 'Remedies in Judicial Review'; presented at The East Africa's Emerging Public Interest Advocates Programme, at the MS TCDC in Arusha – Tanzania on the 1 st March, 2023, Ssekana, J, noted that;

"In judicial review court does not award special, general, punitive, aggravated damages

- 360 but rather in deserving circumstances where there is justification may award damages as compensation for the loss or injury. The habit of seeking damages as if it is an automatic right in every application for judicial review should be discouraged. Judicial review is more concerned with correcting public wrongs and not a way to demand or seek to recover damages." - 365 In view of the above, I would decline to grant damages to the Applicant. The Applicant may file a proper suit detailing the damages that he suffered.

In the final result therefore, I would allow this application in the following terms: -

- 1. A Declaration is hereby made that the discharge of the Applicant from the Uganda Police Force without according him an opportunity to be heard was 370 illegal. - 2. An order of Certiorari be and is hereby issued quashing the discharge of the Applicant from the Uganda Police Force vide; Instrument Number MIA/PA/05/15, dated 9th May, 2022, signed by the Permanent Secretary, Ministry of Internal Affairs. - 375 3. The Respondent's responsible officer is directed to pay the Applicant's salary arrears from the time of cancellation of his transfer at Kayunga District until his discharge from the police. - 4. The Respondent pays costs of this application.

I so order.

380 Dated, signed and delivered at Kampala by mail and uploaded on ECCMIS on this 31st day of October, 2024.

Esta Nambayo

JUDGE

31st 385 /10/2024.