Avini v Arua District Local Government (Miscellaneous Cause 52 of 2022) [2024] UGHC 353 (13 May 2024)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT ARUA (CIVIL DIVISION) **MISCELLANIOUS CAUSE NO. 0052 OF 2022** IN THE MATTER OF APPLICATION FOR JUDICIAL REVIEW

AVINI JIMMY:::::::::::::::::::::::::::::::::::

### **VERSUS**

ARUA DISTRICT LOCAL GOVERNMENT:::::::::::::::::::::::::::::::::::

## BEFORE HON. JUSTICE COLLINS ACELLAM **RULING**

Brief Introduction.

- The applicant brought this application for judicial review by way of Notice of Motion under 20 Articles 42 of the Constitution of the Republic of Uganda, Sections 33 and 36 of the Judicature Act, Cap, 13 and under Rules 3, 3A, 6, 7 of the Judicature (Judicial Review) Rules, 2009 against the respondent for the following orders; that: - - 25 - 1. An order of certiorari quashing the resolution of the district council to have Odumi in Vurra Subcounty as the headquarter for Arua District. - 2. Costs of the Application be provided for.

#### Grounds of the Application.

- 30 The grounds on which this application is based is advanced in the affidavit of the Applicant, AVINI JIMMY deponed on the 5th of July briefly that; - 1) That the district council called for a sitting on the 21st day of December 2021 and among the items on the order paper was not a motion seeking resolution of the council on the headquarter of the Residual Arua District.

$\mathsf{S}$

- 2) That on the day of the meeting, in an illegal and irregular manner, the Order Paper was orally amended to include a motion seeking the resolution of council on the headquarters of Arua District. - 3) That the said alteration was contested by a section of councillors for being illegal and out of order but the council went ahead and passed the resolution. - 4) That the Clerk to the Council in a letter dated 16th day of May, 2022 notified the district councillors to consider the previous minutes which included approval of the resolution to have the District Headquarters at Odumi. - 5) That on the 25th day of May, 2022, the Council considered and approved the minutes to be correct and ready for enforcement. - 15 6) That as a resident and stakeholder in the affairs of the district, he has been adversely affected by the illegal decision of the district with gross disregard to the law and the rules of Procedure of the Council which decision this court should quash by issuing an order of certiorari.

#### Grounds in Opposition

This Application was opposed vide affidavits of LAWINO BUATRE SINGLE, the Speaker to

- 20 the Council of the Respondent and AMAYO WILFRED, the Clerk to the Council wherein they briefly state that; - 1. That the Applicant did not come with clean hands while filing this application because he did not follow the right procedure while obtaining the supporting documents for purposes of the said suit nor did he pay for the same. - That the Applicant is therefore debarred by equity from seeking a remedy before this court when $2.$ he himself does not respect the law. - 3. That the Applicant brought this application outside time within which he ought to have brought it and is guilty of inordinate delay. - 4. That the application has thus been overtaken by events as the Respondent and the people of Arua yearn for service delivery and thus this court must not hold them ransom by the Applicant's indolence. - 5. That in respect to the irregularities, the Applicant chose to ignore the appeal mechanisms provided for under the rules governing the affairs of the Respondent's council and proceeded direct to this honourable court yet the Applicant's complaint could have been easily dealt with by the Respondent's council.

$\mathsf{S}$

$\overline{a}$

- 6. That the Applicant's application is premature as he has not exhausted the dispute resolution forum of the Respondent hence ought to be dismissed with costs to the Respondent. - 7. That the claim that the matter was smuggled into the order paper through amendment is untrue as the alteration on the wording on the order paper was merely for clarification purposes about the details falling under the item and there was no ill motive behind it at all. - 8. That the issue in contention was not new as the same had earlier come before the previous council and been delayed pending further consultations which by passing of the resolution on 21st December 2021 had been concluded. - 9. That this application should be dismissed, and orders sought denied.

#### 15 Grounds in Rejoinder

In rejoinder, the Applicant deponed that it was the Speaker and the Clerk to Council that stamped on the said minutes and the clerk gave him a copy of the documents without asking for any fees to be paid.

That as a lay person, he did not know about any procedure for obtaining the said documents and that the said documents are public documents that can be accessed by any citizen of this country regardless of their economic status and he has a right to access them as a citizen.

He adds that this court has an original unlimited jurisdiction to determine any matter and if any step within the respondent's council was not taken, it does not stop the High Court from averting an injustice and this application is therefore competent and mature before this court and it is in the interest of justice that this Application is granted.

#### Representation

During the trial, the Applicant was represented by Ederu & Gama Advocates and Solicitors whereas the Respondent was represented by Attorney General's Chambers.

Both parties filed their submissions which I have considered while coming up with this Ruling.

- 30 **ISSUES** - Whether this is a proper Application for the grant of the reliefs of Judicial Review. 1. - Whether the Application was filed out of time for an application for Judicial Review. $2.$

$\mathsf{S}$

- 3. Whether the Respondent's council acted with procedural impropriety and illegality in resolving that the Respondents headquarters be located at Odumi. - 4. What remedies are available to the parties.

#### Resolution

ISSUE 1

Whether this is a proper Application for the grant of the reliefs of Judicial Review. 10

### Submission of the Applicant

It's the Applicant's submission that the Respondent's contention that the Application is premature and incompetent before this court is untrue as no district leadership was available to listen to him and that this court has the jurisdiction to entertain the Application.

The Applicant's counsel quotes Rule 5 and 7A (b) of the Judicature Judicial Review (Amendment) Rules where he contends that any person who files an application for Judicial Review must have exhausted all the alternative statutory remedies available to him or her to stop overburdening the High Court with cases where a specialized body or a tribunal would have handled.

Counsel submits that there was no alternative statutory remedy that accrued to the applicant before filing this Application.

In response, the Respondent submits that the Applicant's application is premature as he 25 should have exhausted all other appeal mechanism before rushing to COURT. Counsel submits that the Applicant should have petitioned the Respondent's council through a petition against the conduct of the council on the 21st December, 2021 as per rule 1 of the Standard Rules of Procedure for Local Government Councils in Uganda.

Under Rule 35 and Appendix 'E' of the said rules provides for the format of the Petition. The matter would have been laid before the table and the same would have been referred to the relevant committee.

$\mathsf{S}$

#### 5 Consideration of Court.

I have heard from both parties.

## Rule 7A (1) of the Judicature (Judicial Review) Rules 2009 provides thus;

The court shall, in considering an application for judicial review, satisfy

10 itself of the following.

(a) that the application is amenable for judicial review;

(b) that the aggrieved person has exhausted the existing remedies available

within the public body or under the law; and

#### 15

A party must exploit or resort to all available and effective remedies available under the law before recourse is made to Court. This requirement is hinged on the known administrative principle of creating effective dispute resolution mechanisms within the public bodies which have the knowledge and expertise to handle the disputes that arise in different public institution/bodies.

The broad contours of this principle were well sieved and brought out by Musota J (as he then was) in Charles Nsubuga vs Eng. BadruKiggundu& 3 Others, HC MC No. 148 of 2015, citing with approval the position of High Court of Kenya in the case of Bernard Mulage vs Fineserve Africa Limited & 3 Others Petition No. 503 of 2014, thus:

"There is a chain of authorities from the High Court and the Court of Appeal that where a statute has provided a remedy to a party, this court must exercise restraint and first give an opportunity to the relevant bodies or state organs to deal with the dispute as provided in the relevant statute. This principle was well articulated by the Court of Appeal in Speaker of 12 National Assembly versus Ngenga Karume [2008] 1 KLR 425 where it was held that.... where there is clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed".

From the reading of rule 7A (1), where there is an alternative remedy provided for under the $\mathsf{S}$ law, Courts should be reluctant to interfere unless and until those alternative remedies are fully exploited.

This position is in tandem with the dicta of the Court of Appeal in Leads Insurance Limited

- vs Insurance Regulatory Authority & Another, CACA No. 237 of 2015, where it was held 10 thus: "The remedy by way of judicial review is not available where an alternative remedy exists. This is a proposition of great importance. - Judicial review is collateral challenge; it is not an appeal. Where Parliament has provided by statute appeal procedures, it will only be very rarely that the court will allow the collateral 15 process of judicial review to be used to attack an appealable decision. See: Breston Vs IRS 1985 Vol. 2 Land Reports pg 327 at page 330 Per Lord Scarman". - There are however permissible exceptions where Court can admit and entertain an application for judicial review even in the currency of the alternative remedies. This was put is clear context 20 by Justice Musa Sekaana in Salim Alibhai& Others vs Uganda Revenue Authority, HC M. C No. 123 of 2020, he observed thus:

"The rule of exhaustion of alterative remedies is not cast in stone and it applies with necessary modifications and circumstances of the particular case ... When an alternative remedy is available, the court may refrain from exercising its jurisdiction, when such alternative, adequate and efficacious legal remedy is available but to refrain from exercising jurisdiction is different from saying that it has no jurisdiction.

- Therefore, the rule of exhaustion of alternative remedy is a rule of discretion and not one of 30 compulsion. In an appropriate case, in spite of availability of alternative remedy, the High Court may still exercise its discretionary jurisdiction of judicial review, in at least three contingencies, namely, - $(i)$ where the application seeks enforcement of any of the Fundamental rights; - where there is failure of natural justice; or (iii) the orders or 35 $(ii)$ proceedings are wholly without jurisdiction, or the vires of an Act is challenged...

The learned judge also gave a persuasive position as regards exhaustion of alternative remedies $\mathsf{S}$ in Water and Environment Network (U) Limited and 2 Others v National Environmental Management Authority and Anor (Consolidated Miscellaneous Cause No. 239 of 2020) [2021] UGHCCD 30 (7 May 2021), thus:

The Court must have good and sufficient reason to bypass the alternative remedy provided for under the statute. To allow litigants to proceed straight to court would be to undermine the autonomy of the administrative processes......"

Further in Dr. Badru Ssesimbwa v Nakaseke District Service Commission & Anor, HCMC No. 16 of 2018, it was observed that:

This court has noted that in some cases, it is not a requirement that a party should exhaust the available remedies, but it is advisable to explore all such alternative procedure to get the same remedies.

The Court has the discretion to give remedies in Judicial Review even if alternative remedies exist.

It is therefore deducible from the above, that court may in exceptional circumstance grant remedies in judicial review even where the alternative remedies exist and before their exhaustion. These exceptions however should be applied on a case-by-case basis.

It is my view that where the law provides clear alternative remedies at law which better serve the 25 nature of complaints in issue, the Court should be reluctant to play the role of the 'wise man who knows it all'. I believe by the frames of the law putting in place those alternative mechanisms; they thought it wise to have such issues first addressed in a more convenient manner in line with the prevailing policies and the resources available.

In light of the facts, counsel for the Respondent clearly lays down procedure of redress laid out in the Standard Rules of Procedure for Local Government Councils in Uganda, 2019. In this Rules, its clearly required of council members to petition the council incase of any grievance that arise out of conduct of business in council. The format of the said Petition is provided for

under Rule 35 and Appendix 'E' of the said Rules.

The rules envisages that the Petition ought to be presented by a member of the council under 5 Rule 36 of the said Rules and the Applicant should have submitted his Petition through his representative or any other member of the council who shared his views on the issue before the council; and signed the Petition by himself as provided for under Rule 35, the same is then lodged with the clerk to council for approval of the speaker before the same is laid on TABLE as provided under Rules 38 (1).

It is thereafter that the same matter would be laid before the table and then referred to the relevant committee of the house for consideration and recommendations to the council.

15 In this case, there was no documents or letter of complaint attached to the Application to show that the Applicant had at least tried to Petition the council or exhaust the other remedies other than his intimated GRIEVANCE that the officers refused to give him a listening ear. No documentative proof of his attempt to obtain audience was availed to court. This case does not fall within the exceptions highlighted above. Ignorance is no excuse. He should have known other recourse of settling the matter without necessarily coming to court. 20

Therefore, having not followed the procedure required under the Rules, the Applicant had not fully exhausted the procedure as required within the law hence this application is premature before court.

#### ISSUE 2

## Whether the Application was filed out of time for an application for Judicial Review.

#### Submissions of parties

In the Applicant's affidavit in support of the Application, the Applicant contends under 30 paragraph 7 & 8 that the Application was filed within time within which an application ought to have been brought and the same has been over taken by events. In the affidavit in Rejoinder at paragraphs 5,6,7 & 8, the Applicant adds that the application was filed within time for simple reasons that council resolutions take effect after the subsequent sitting where the 35 council considers the previous minutes and its after there that the implementation of the council's decisions takes off and as such , the council's decision which the Applicant seeks to challenge was formerly passed on the 25th December, 2021 and that even if this court finds it $\mathsf{S}$ was passed outside time, this Application presents serious illegalities that it should not allow the Respondent to go away with because of a technicality of time.

In rebuttal, counsel for the Respondent submit that the resolution was passed on 21st December, 2021 and it became effective when it passed. There are no accompanying words 10 from the wording therein when the resolution is passed than to indicate that the same would be effective at a future date as per Annexture C of the Applicant's affidavit in support. That the council only had one meeting and that is the one held on the 21st December 2021

which was conclusive on the issue as it did not require approval for it to become effective.

### Consideration of Court.

Section 36 (7) of the Judicature Act Cap 13 as Amended and Rule 5 (1) of the Judicature (Judicial Review) Rules, 2009 provides for the time frame within which an application for Judicial Review should be presented and provides thus: "An application for judicial review shall be made promptly and in any case within three months from the date when the ground of the application arose, unless the Court has good reason for extending the period within which the application shall be made."

The above law limits the time within which an application for review is to be presented in Court to three months from the time the grounds which call for review arose.

The connotation "from the date when the grounds of the application arose" under section 36 (7) of the Judicature Act and rule 5 (1) in my view clock back to the purpose of judicial review. Since judicial review is primarily concerned with the legality, propriety and fairness of a decision made by a public body or administrative body mandated to take administrative decisions, the time when the grounds a rose relate to the time when the decision was taken. (See Male H. Mabirizi Kiwanuka v Uganda Revenue Authority, HCMC No. 84 of 2021.

It is thus my view that a cause of action for judicial review accrues when there is a decision 35 taken by any public or administrative body which is alleged either to be against the law or

$\mathsf{S}$ which is tainted with illegalities. Therefore, the three months start running from the time the alleged decision was made or taken by a public or administrative body.

Decision making and the communication of a decision is a process. Going by the pleadings, the applicant claims that the decision took effect on the 25th day of May, 2022 and it was first smuggled onto the order paper on the 21st day of December, 2021. This position was refuted

by the Respondent who claims decision was conclusive on the 21st December, 2021.

On perusal of the record, attached to the Application is Annexture 'A' constitutive of Notice of District Council Meeting. On page 2 there was an amendment on the Notice to include a motion to present debate and approval of District headquarters of residual Arua district and this was on the 21st day of December, 2021.

Further, Annexture B which is another notice of meeting of the district council scheduled for Wednesday, May 25th, 2022, it contained several items to be discussed but did not contain the motion seeking approval of residual Headquarters of Arua District.

Accordingly, on perusal of Annexture 'C' which is constitutive of minutes of the meeting held on the 21st December 2021, page 3, included motion seeking resolution of the District Council on the location of the Headquarters of the Residual Arua District.

$25\\$

$10$

Annexture 'C' at page 4 also presents the adopted Oder Paper to include Motion seeking a resolution of the District Council on the relocation of the Headquarters of the Residual Arua District.

In my understanding, I agree that the meeting held on the 21st December 2021 was for the 30 presentation, debate, and approval by the council members. A sneak pic at the minutes of the meeting held on the 21st December 2021, specifically page 23 to 27 of Annexture 'C', there was a discussion and debate on the headquarters of Arua District and as such, by secret ballot, voting was carried out and Odumi obtained majority of 9 votes.

$\mathsf{S}$ This simply means the resolution to have Odumi as headquarters of Arua district was passed and adopted on the 21st December 2021. This Application was filed on the 6th of July 202, 6 months after the cause of action arose. I therefore agree with counsel for the Respondent that this Application in all normal circumstances, is time barred since it was filed out of the legally required three months.

However, I wish to invoke the discretion of court under section 98 of the Civil Procure Rules to submit on the illegality and dispose off the Application on its merits

# ISSUE 3

Whether the Respondent's Council acted with procedural impropriety and illegality in 15 resolving that the Respondents headquarters be located at Odumi.

The essence of the remedy of judicial review was well articulated by Kasule J. (as he then was) in the case of John Jet Tumwebaze vs Makerere University Council and 3 others Civil Application No. 353 of 2005 where he pointed out that;

"prerogative orders are remedies for the control of the exercise of power by those in public offices, and that in Uganda, prerogative orders are now an essential remedy in the judicial system under the collective process of judicial review."

In the case of Nazarali Punjwani vs Kampala District Land Board & Anor; HCCS No. 07 of 2005 Justice Kasule (as he then was), observed that: 25

> "judicial review is a legal process of subjecting to judicial control, the exercise of powers affecting people's rights and obligations enforceable at law by those in public office. Further that judicial review controls administrative action under three heads; illegality, irrationality and procedural impropriety."

From the facts of this case, it is not in disputed that the respondent is a public body established under the Act of Parliament to manage the affairs of Arua District. As such, the respondent's actions taken, and the decision made affecting the applicant in respect to the decision under taken on the 21st day of December 2021 is subject to judicial review by this Court.

- Having made a finding hereinabove in this ruling that the respondent's decision is subject to 5 this Court's judicial review jurisdiction, it is pertinent to establish whether there are grounds for judicial review. My considered opinion in this regard is that there are grounds in this application upon which the Court can base on to exercise its judicial review jurisdiction and discretion. In the case of Nazarali Punjwani vs Kampala District Land Board & Anor; HCCS - 10

No. 07 of 2005 Justice Kasule, observed at page 18 that judicial review controls administrative action under three heads; illegality, irrationality and procedural impropriety.

I now proceed to examine the respondent's conduct when it made the disputed decision under the above three heads:

#### $(i)$ Illegality

According to the case of Nazarali Punjwanivs Kampala District Land Board (supra) page 18, Justice Kasule, held that illegality is when a decision, subject to review, is made contrary to the law empowering the decision maker. The test is whether the decision maker has acted or not acted within the law.

In light of the facts, the Applicant aver that the clerk to council for the Respondent circulated notice for a sitting to take place on the 21st day of December, 2021 and that the notice dated 8th day of December ,2021 was not a motion seeking for a resolution of council on the location of the district headquarters for the respondent, that on the 21st day when the Respondent's council commenced the debate for the day, the order paper was illegally and irregularly amended to include the motion for resolution of the district Headquarter for the Respondent to sit at Odumi in vurra Subcounty and that a section of the district councilors protested the amendment citing travesty of the rules of procedure of the Respondent's council and the same would be differed for another sitting for proper consultations but the council went ahead to pass the resolution without following due process of the law.

In response, the Respondent argue that the motion was contained in the order paper along with other items to be discussed under Executive Committee Business and that the order paper was merely amended to establish specificity so as to enable members debate the matter. The Respondent contend that motion was not new to the members and that the same had

numerously come up before the previous council but was never concluded- all in all in the $\mathsf{S}$ name of further consultations. The motion was debated, voted on and passed by a majority of the house.

Owing to the foregoing, I am not convinced by the Applicant's argument as on perusal of 10 pages 23, 24, 25, 26, 27 and 28 of Annexture C, it is indicated in the minutes that the issue had been before the Council for a long time and as such, there was need to take action so as to avoid losing funds to aid construction of the said offices.

The question here is whether the standard rules of Procedure allow the clerk to amend an 15 order paper and whether the amendment was legal.

This is a public body that acts with interests of the public at mind and as such matters ought to be handled expeditiously as long as the public is not prejudiced in any way.

- 20 The Respondent referred court to pages 24, 25, 26, 27 and 28 of Annexture 'C' and in my view, the same had earlier on been a subject of debate, I am not convinced that it was smuggled onto the Order Paper as I believe, it had long been debated on. The same document gives a sneak pic of the vote by secret ballot with Odumi emerging with the majority vote. - 25 It would be a different case if it was smuggled and passed without the deliberation of Council who are the eyes and representative of the people. According to the minutes, consultations was made and it was not a new matter as of 21st December 2021.

I have no reason to believe that this issue was not debated on and voted by the majority. There was no illegality as intimated by the Applicant. 30

#### $(i)$ Irrationality.

Again, in the case of Nazarali Punjwani vs Kampala District land Board (supra) the court observed at page 18, that irrationality is when the decision made is so outrageous in its defiance

of logic or acceptable moral standards that no person, could have arrived at that decision. 35 Underlining is mine of emphasis.

In light of the facts, I agree with the Respondent's contention that the residual Arua has been 5 without a Residential Headquarter and it was important that a new home be decided upon to house the headquarters of the residual Arua District. The motion was tabled and debated on, votes by secret ballot was carried and Odumi in vurra sub county emerged with majority votes as per Annexture C.

Therefore, the decision to select Odumi as headquarter for Arua District, in my view wasn't irrational or unreasonable.

### $(ii)$ Procedural impropriety

In Nazarali Punjwani vs Kampala District land Board (supra), the Court observed at page 19, 15 that procedural impropriety is when rules and principles of natural justice, and / or failure to act with procedural fairness, are not observed by the decisions maker to the prejudice of the one affected by the decision. According to me, it covers non-observance of procedural rules in the empowering legislation. Its test is whether the duty to act fairly and the right to be heard 20 have been observed.

In respect to the facts, the motion itself as per Annexture 'C' is argued to have been pending before the council for the long time, stakeholders admit to have made consultations as far as land and facilities is concerned to accommodate the new headquarters, the Applicant does not rebut the above position but only argues that the same was smuggled on to a day's order paper and it wasn't given proper consultation as required. Pages 24, 25, 26, 27 clearly demonstrates several views of different stakeholders as per the appointment of district headquarters, and lastly a secret cast of votes.

He who asserts a fact must prove. The Applicant has failed to prove this at the satisfaction of 30 court hence there was no procedural impropriety.

In the result and for the reasons given hereinabove in this ruling, this application has no merit. Accordingly, this application is disallowed with no orders as to costs.

# I so order.

5 Delivered at Arua this....................................

**JUDGE**

ACELLAM

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