Balintuma v Attorney General (Civil Appeal 65 of 2021) [2025] UGCA 49 (14 February 2025)

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT I(AMPALA

(Coram: Cheborion Barishaki, Moses Kazibwe Kawumi, Asa Mugenyi JJA) CIVIL APPEAL NO. 65 OF 2O2L

| HER WORSHIP BALINTUMA GRACE | | APPELLANT | |-----------------------------|--------|-----------| | | VERSUS | |

THE AT'TORNEY GENERAL RESPONDENT

(Arising out from a decision of the High Court Ciuil Appeal 6O of 2O19 dated 4th December 2O2O confirming a decision of the Judicial Seruice Commission dated 2Vh December 2018)

### JUDGMENT OF DR. ASA MUGENYI JA

### <sup>1</sup> INTRODUCTION

This is a second appeal from the decision of the Judicial Service Commission (JSC) dismissing the appellant from judicial service under Minute 239 of 2018 dated 27th December 2018. The appellant being dissatisfied with the decision of the JSC appealed to the High Court presided over by three Justices to wit, Michael Elubu J., Musa Sekaana J. and Esta Nambayo J. Their judgment was delivered on 4th December 2O2O dismissing the appeal. Aggrieved by the decision, the appellant appealed to this court.

### 2. BACKGROUND

2.1 This appeal arose from a complaint by one Ronald Kaweesi to the Judicial Service Commission (JSC) which arose out of a land transaction. The complainant had filed a matter in the High Court, Civil Suit 199 of 2oll Ronald Kanaeesi <sup>u</sup> Nkwanga Kazeka where judgement was entered in his favor requiring the

defendant to give vacant possession. The defendant instead filed Civil Suit 59 of 2Ol2 in the Chief Magistrate's Court of Mpigi and a Miscellaneous Application 53 of 2OI2 where he obtained an interim order dated 17th May 2Ol2 staying execution of the High Court judgment and decree. The appellant, a magistrate Grade One, issued the interim order staying the execution of the judgement and decree in High Court. The complaint was that the appellant, acted without jurisdiction when she signed and purported to issue an order in respect of Mpigi Chief Magistrate's Court MA 53 of 2Ol2 Edmund Mutesasira u Ronald Kauteesr. It was claimed that the appellant signed the interim order while she was still a magistrate at Buganda Road Court and without jurisdiction to hear cases at Mpigi Chief Magistrates Court and as a result she caused the complainant to suffer loss.

- 2.2 The appellant was accordingly charged with 3 counts under the Judicial Service Commission Regulations S1 87 of 2005 which were: - i. Conducting herself in a manner prejudicial to the good image, honour, dignity and reputation to the Judicial Service contrary to Regulation 23(a) - ii. Acting in contravention of the Code of Judicial Conduct, the judicial oath, or any other oath taken by the Judicial officer contrary to Regulation 23fi). - iii. Abusing judicial authority contrary to Judicial Service Regulation 23(m). - 2.3 The JSC basing on the evidence adduced, found that the appellant committed the offences set out in the counts. The JSC took in account previous antecedents of the appellant. It was noted that the appellant was a habitual offender who had defied several warnings, undertakings, severe reprimands and interdictions. The JSC resolved that the appellant be dismissed from judicial service with immediate effect. - 2.4 The appellant being aggrieved by the decision of the JSC appealed to the High Court in Civil Appeal 65 of 2O2I Her Worship Balintuma Grace u Attorneg General. The said appeal was heard by a panel of 3 judges. On 4th December

2O2O, the High Court dismissed the appeal. Hence this appeal

## 3. GROUNDS OF APPEAL

The appellant raised the following grounds of appeal.

- 1. The judgment of the High Court is tainted with apparent bias, illegality, and irregularity which render it a nullity. - 2. The Justices of the High Court erred in Law when they abdicated their constitutional and statutory duty to exercise supervisory jurisdiction over the decision making process of the JSC when they failed to pronounce as null and void the disciplinary proceedings and decision of the JSC for illegality, procedural irregularities, irrationality and bias. - 3. The Justices of the High Court erred in law failing to find and to hold that the proceedings of the hearing before the full JSC on the 27th September 2018 which took the decision to dismiss the appellant under Minute 239120 18 were null and void for not complyrng with the requirements of a fair hearing. - 4. The Justices of the High Court erred in law in failing to find and hold that the proceedings of the disciplinary committee of the JSC and its report dated 16th May 2018 recommending the dismissal of the appellant were null and void for not complyrng with the requirements of a fair hearing. - 5. The Justices of the High Court erred in law when they failed to find and hold that the JSC violated Regulations 29(ll and (5) and the right to a fair hearing when it omitted to supply the appellant copies of the investigation report and other documents which were used as evidence of a prima facie case against her. - 6. The Justices of the High Court erred in law when they failed to find and hold that no legal evidence was produced before the disciplinary committee in support of the charges of judicial misconduct against the appellant. - 7. The JSC violated Regulation 12(3)(a) of SI 88 of 2005 and the constitutional right to a fair hearing when it failed and omitted to interview witnesses.

- 8. The Justices of the High Court erred in law when they failed to find and hold that the JSC violated Regulation 12(3)(b) and the constitutional right to a fair hearing when it failed and omitted to collect documentary evidence. - 9. The Justices of the High Court erred in law when they failed to find and hold that the JSC violated Regulations 12(3)(c) and the constitutional right to a fair hearing when it failed and omitted to file an investigation report. - 10. The Justices of the High Court erred in law when they failed to find and hold that the defence of alibi was available to the appellant and the claim in the charge sheet that the appellant issued the alleged interim order on 17th May 2Ol2 while still at Buganda Road was irrational. - <sup>1</sup>1. The Justices of the High Court erred in law when they failed to lind and hold that the JSC failed to keep a proper record of the testimony of the appellant and that this failure was illegal and constituted the violation of the right of fair hearing. - l2. The Justices of the High Court erred in law when they failed to find and hold that the framing of issued by Disciplinary Committee (DC) violated the appellant's right to a fair hearing. - 13. The Justices of the High Court erred in law when they failed to find and hold that the dismissal of the appellant on the ground that she was a habitual offender was unconstitutional and illegal. - 14. The Justices of the High Court erred in law when they failed to find and hold that the punishment and dismissal imposed on the appellant was illegal. - 15. The Justices of the High Court erred in law when they failed to find and hold that the appellant did not admit the charges framed against her. - 16. The Justices of the High Court erred in law when they failed to find and hold that the complaint was tainted with falsehoods and illegal information. - 17. The Justices of the High Court erred in law when they failed to find and hold that the proceedings before the JSC were tainted with bias and falsehoods.

## 4. REMEDIES SOUGHT BY THE PARTIES

The appellant prayed to this court for orders that,

- a) That the appeal be allowed, - b) The judgment in High Court Civit Appeal 60 of 2019 dismissing the appellant's appeal be set aside, - c) That the proceedings and decisions of the JSC under Minute 239 of 2Ol8 dismissing the appellant from the JSC be quashed, - d) The appellant be re-instated into the same service and paid her full salary and benefits since dismissal with interest of 2Ooh unttl payment in full, - e) The appellant be paid aggravated damages to be assessed by this court with interest at court rate from the date of judgment until payment in full. - 0 The Judicial Service Commission be directed to implement the withheld promotion of the appellant with effect from the date it should have taken effect and pay the appellant's arrears of salary and benefits due on such promotion at a rate of 20 o/o till full payment. - g) The appellant be awarded costs in this court and the court below.

### 5. ISSUES

- On perusal of the pleadings on appeal, the record of the High Court and the proceedings of the Judicial Service Commission I find it prudent to frame the following issues for resolution by this court. 5 - 1. Whether this court has jurisdiction to entertain this appeal? - 2. Whether the grounds of appeal raised by the appellant are properly before this court? - 3. Whether the appeal holds any merit?

### Representation.

At the hearing the appellant was represented by Mr. Sebastian Angeret. The respondent was represented by Mr. Derrick Rutungu.

## 6. PARTIES SUBMISSIONS

At the hearing of the appeal on 5th June 2024, the Court agreed to consider the conferencing notes of the parties as their submissions. However, before I can consider the submissions, there is a preliminary point I wish to address, which may determine whether it is necessary to consider the submissions of the parties. 6

#### DETERMINATION OF COURT

# 7. L Issue 1; Whether this court has the jurisdiction to entertain this appeal?

7.1.1The Constitution provides for the Judicial Service Commission (JSC) under Article 146. Article 148 of the Constitution which provides for the functions of the JSC states;

> 'subject to the provision of this Constitution, the Judicial Service Commission may appoint persons to hold or act in any judicial office other than offices specified in Article 147(3) of the Constitution and confirm appointments in and exercise disciplinary control over persons holding or acting in such offices and remove such persons from office.'

Article 150(2) of the Constitution states that;

'Parliament may make laws for regulating and facilitating the discharge by the President and the Judicial Service Commission of their functions under this chapter.'

In line with Article 150(2) Parliament enacted The Judicial Service (Complaints & Disciplinary) Proceedings Regulations 2003. The appellant was disciplined

under the Judicial Service Commission (Complaints and Disciplinary) Proceedings Regulations SI 88 of 2005. Being aggrieved by the decision of the Commission the appellant appealed against its decision. Regulation 18 provides a remedy for the judicial officer who is not satisfied or in agreement with the decision of the JSC. Regulation 18 of the said Regulations states that.

A judicial officer who is dissatisfied with the decision of the Commission, may appeal within thirty days after the decision has been made, to a panel of three judges of the High Court stating the reasons for which he or she is not satisfied.' The appellant being aggrieved by the decision of the High Court appealed to the Court of Appeal. A panel of three judges of the High Court is not any ordinary sitting of the High Court like that presided by one judge. The question to answer is; whether one can appeal against a decision of a High Court presided by three judges to a Court of Appeal composed of three judges and not five. The three judges of Court of Appeal may have nothing to add. This brings us to the question whether the appellant has a right of appeal.

- 7. L.2 It is trite law that an appeal is a creature of statute. The appellant jurisdiction of the Court of Appeal is provided for in Section 1O of the Judicature Act which states that 'An Appeal shall lie to the court of Appeal from the decisions of the High Court prescribed by the constitution, this act or any other law.'Article 134(2l.of the Constitution of Uganda states that 'an appeal shall lie to the Court of Appeal from such decisions of the High Court as may be prescribed by law.' A reading of the above Section and Article requires for one to appeal to the Court of Appeal it must be prescribed by the law. A perusal of the Judicial Service Commission (Complaints and Disciplinary) Proceedings Regulations SI 88 of 2OO5 does not show any right of appeal from the decision of the High Court to the Court of Appeal. - 7. L3In Housing Finance Bank Limited u Uganda Reuenue Authority CACA 22 of 2OL2 l2O2Ol UGCA 2035 (9 March 2O2Ol, Madrama JA (as he then was), stated that "There is no provision in law granting a party a right to appeal from a decision of the High Court on appeal from the Tax Appeals Tribunal". The judge stated

that appellant jurisdiction is a creature of statute. He clearly stated there is no further provision from a decision of the High Court to the Court of Appeal. The appeal was accordingly struck out because the Court of Appeal had no jurisdiction. Basing on the said case, the Constitution, Acts of Parliament and Regulations thereunder providing for the JSC are silent on appeals from the High Court arising from the decision of the JSC to Court of Appeal. An appeal as discussed above is a creature of statute. The absence of a law permitting the appellant to appeal to the Court of Appeal from a decision of the High Court sitting on an appeal from a decision of the JSC renders this court without jurisdiction. On this issue this appeal is dismissed with costs to the respondent. It is not necessary to address the other issues and the submissions of the parties.

-H" Dated at Kampala this day of.... o25

u

JUSTICE OF APPEAL

#### THE REPUBLIC OF UGANDA

#### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

(Coram: Cheborion Barishaki, Moses Kazibwe Kawumi, Asa Mugenyi, JJA)

#### CIVIL APPEAL NO. 65 OF 2021

#### HER WORSHIP BALINTUMA GRACE::::::::::::::::::::::::::::::::::::

#### **VERSUS**

THE ATTORNEY GENERAL::::::::::::::::::::::::::::::::::::

#### **JUDGMENT OF CHEBORION BARISHAKI, JA**

I have had the benefit of reading in draft the judgment prepared by learned brother Hon. Justice Dr. Asa Mugenyi, JA. I agree with the reasoning and orders he has proposed. I have nothing useful to add.

Since Justice Moses Kazibwe Kawumi, JA also agrees, the appeal is dismissed with costs to the respondent.

Dated at Kampala this ....................................

Cheborion Barishaki

#### **JUSTICE OF APPEAL**

# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

# CIVIL APPEAL NO. 55 OF 2O2L

HER WORSHIP BALINTUMA GRACE APPELLANT

### VERSUS

THE ATTORNEY GENERAL RESPC \IDENT

CORAM: HON. JUSTICE CHEBORION BARISHAKI, JA HON. JUSTICE MOSES KAZIBWE KAWUMI, JA HON. JUSTTCE DR. ASA MUGENY!, JA

# JUDGMENT OF MOSES KAZIBWE KAWUMI, JA

I have had the benefit of reading in draft the Judgment prepared mv learned brother the Hon. Justice Dr. Asa Mugenyi, JA. I agree with the reasoning and orders he has proposed. ! have nothing useful to add.

Dated and delivered at Kampala this ... .|.\*.?aaV ot 2025.

Moses Kazibwe Kawumi JUSTICE OF APPEAL