Cheborion Barishaki v Attorney General of Uganda (Miscellaneous Application 851 of 2004) [2005] UGHC 139 (18 March 2005)

#### THE REPUBLIC OF UGANDA

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

# **MISCELLANEOUS APPLICATION 851. OF 2004** (Arising out of Miscellaneous Cause No. 177 of 2004)

## CHEBORION BARISHAKI::::::::::::::::::::::::::::::::::::

### **VERSUS**

## THE ATTORNEY GENERAL OF UGANDA:::::::::::RESPONDENT

#### BEFORE HIS LORDSHIP JUSTICE J. B. A KATUTSI

#### R ULING

This is an application brought under the provisions of Section 3 of the Judicature (Amendment) Act No 3 of 2002, Rules 6 (2) (b) of the Civil Procedure (Amendment) (Judicial review) Rules SI 75 of 2003, and Articles 28, 42 and 50 of the Constitution seeking orders for Certiorari, Prohibition, Declaration and Mandamus as follows:

- An order of Certiorari quashing the Solicitor General's decision to $1.$ interdict the Applicant. - An order of Certiorari quashing the irregular investigation of the $2.$ applicant by the Solicitor General.

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- An order of Prohibition , prohibiting the Solicitor General Mr. L. Tibaruha tiorn continuing to in.rplement the interdiction of the applicant. -). - An older of prohibition, to issue against the Attomey General prohibiting hirrr from continuing to illegally bar the Applicant from his duties and /or office. .+ - An order of Certiorari quashing tl.re Minister of Justice and Constitutional Affair's decision to remove the Applicant from off,rce without just cause. i - A declaration that the interdiction of the Applicant was made contrary to the principles of natural justice. 6. - A declaration that the Minister of Justice and Constitutional Aftair's decision to remove the applicant from office without just cause was null and void. 1 - An order ol Mandamus reqrrestillg the respondent to allow the applicant to resume l.ris duties ar.rd / or office. 8. - An order ol prohibition restraining the Solicitor General from restraining the Applicant's movements. 9 - <sup>1</sup>0. General, aggravated and exan-rplary damages. - <sup>I</sup>L Costs.

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The application is supported by the affidavit ofthe Applicant and is based on the lollowirrg grounds.

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- <sup>I</sup>. That the applicant was on I I'h October 2004 granted leave to apply for Judicail review by the Hon. Mr. Justice Okumu Wengi. - 2. That the Applicant has been irregularly and / or illegally interdicted by the Solicitor General. - -) The interdiction of the Applicant by the Solicitor General dated 8'r' Septer.nber, 2004 was nrade in complete disregard and / or breach ofthe rules ofnatural Justice, and articles 28,42,44,50, 172 and 173 olthe Coustitution. - That the Solicitor General is not impartial in the matter upon which tlre decision to interdict the Applicant was stated to be based. "1 - That at all material times, the learned Solicitor General, Mr L. Tibaruha had a predetermined decision to get the Applicant dismissed from Public Service contrary to the Constitution and the principles of natural justice. 5. - The interdiction letter contains materials which are greatly injurious to the credit, character and reputation, office and occupation and has been brought into public scandal, hatred redicule and contetnpt. 6 - The Minister of Justice and Constitutional Affairs took a decision to renrove the Applicant fron.r office without just cause. 1

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- l'he Solicitor Ceneral acted unlawfully wl.ren he directed that the applicant doesn't leave Uganda witliout his permission. 8. - 9. lt is .jLrst and equitable that the orders sought be granted.

h.r his Written submission the Respondent raised the following points of law in objection, namely:

- That the Application was presented out side the time prescribed by law. - That the Application is premature and misconceived and discloses no callse of action. 2 - 3. 'fhere is no decision that can be reviewed by court

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That the Application is misconceived in so far as it seeks to force the employer to employ and not discipline the Applicant. ,i

Certiorari and Prolribition are general remedies for the conhol of adn.rinistrative decisions affecting rights of the citizens. These two simply give effect to the principles that powers of decision must be exercised lawfully. As LORD PARKER said:

" It cannot be clearly stated that the remedy of certiorari only lies to bring up to his court and quash something which is a determination or decision." EX. PRITCHARD [953] I W. L. R 155 at I 166.

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The court should in principle be willing to intervene when ever a prejudicial decision is made in the course of the exercise of Statutory powers.

It should be noted that the primary duty of Certiorari and Prohibition is to make the machinery of government operate properly in the public interest, rather than to protect private rights.

Certiorari lies to quash decisions of two kinds: decisions which are ultra vires and void and therefore nullities in law; and decisions which are intra vires but show error on the face of the record and merely voidable.

In this application Regulation 36 of the Public Service Commission Regulations provides as follows:

"Where a responsible officer (Read Solicitor General) Considers that public interest requires that a public officer ceases to exercise the powers and functions of his office, he shall interdict the officer from exercising those powers and functions if proceedings for his dismissal are being taken or about to be taken or if criminal proceedings are bing instituted against him."

This regulation appears to me to mean no more than that the responsible officer has honestly to suppose that public interest requires that a public officer ceases to exercise those powers and functions of his office. On that basis, granted good faith, the responsible officer appears to be the only judge of the conclusions of his own jurisdiction. The regulation only imposes a condition that there must in fact exist such public interest known to the responsible officer before he can validily exercise the power vested in him. But it does not seem to follow necessarily from this that the responsible officer must be acting judicially.

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It is a stror"rg step il1 the argument to say tl.rat because the reponsible otllcer is enjoined that he must consider that public interest requires that a public officer be interdicted, that is to say has reasonable grounds for so considering, he can only arrive at that consideration by a course of conduct analogons to judicail process which requires the observance of the rules of natual .lustice.

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Br.rt that apart, r1o procedure rs laid down by the regulations for securing that the public otficer who is to be interdictted is to have notice of the responsible officer to interdict him, or that there must be an inquiry, public ol private before the responsible officer acts.

In a nut-sl.rell the power vested in the respondible officer by the regulations starids by itself on the bare words of Regulation 36 and, if a rlere requirement that the responsible officer considers that public interest requires that a public officer ceases to exercise the powers and fr-rnctions of of his otfice is insufficient to oblige the responsible officer to observe the rules of natural justice, a public officer who has been interdicted can not advance the non observance of the rules ofnatural justice as a ground tbr review. In this application it cannot be said that the interdictior.r of the Applicant was ultra vires. It was intra vires, No error on the face of the record has been shown and I see none. In my hurrble ruling prayers in paragraphs 1,2,3,4 and 6 ofthe application are untenable.

There is a prayer lbr certiotari to quash tl.re Minister of Justice and Corrstitutional Affairs decision to renlove the Applicant from office lvithout just cause. Tl.ris springs fiorn loose minutes which the Minister addressed to the Ag. Solicitor General. The letter states in part.

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" nCTroN ITEQUIRE,D:

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Thc pr-rrpose of this loose nrinute is to inform you that as the officer responsible tbr the staff in this Ministry you should address the said courmp laints. You are therelore directed to take appropriate actior-r to rernove the said officers from office " ( emphasis mine)

A caretul reading of tl.ris loose minute shows that the Minister did not take any action. She directed the Ag. Solicitor General to " take appropriate action to remove the said officers from office." In other rvards it was left to the Ag. Solicitor General to take action. The Ag. Solicitor General as a technocrat could go back to the Minister in case he saw no good cause to have these officers removed from office to advise that it wor.rld be un safe or ur-r wise to remove the officers from oftlce. In any case this prayer was over taken by event. Ag Solicitor General took actiorl and interdicted the Applicant. The inclusion of this prayer was theref,ore with respect idle.

Tliere is a prayer for an order of Mandamus requiring the Respondent to allorv the Applicant to resume his duties and / or his office. Mandamus is a peremptory order issuing out of this court commanding a body, or persons, to do that which it is its, or his/her duty to do. I have already ruled that in interdicting the Applicant the leamed Ag. Solicitor General acted well within his jurisdiction. This prayer therefore is no longer relevant.

ln any case in interdicting the Applicant the leamed Ag. Solicitor Cer.reral was carrying out a disciplinary action. LORD GODDARD put it correctly when he said:

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where a person whether he is a military officer, a police of ficer or any person whose duty it is to act in matters of discipline, is exercising disciplinary powers, It is most undesirable in my opinion, that he should be lettered by threats and orders ofCertiorari and so forth, because that interferes with the free and proper exercise of the disciplinary powers which he l.ras."

The letter of the Ag. Solicitor General interdicting the Applicant read in part.

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" As rnvestigations continue, you are hereby interdicted from your office with immediate effect."

It is during this stage of investigations that the Applicant was to be accorded tlre protection of the rules ofnatural justice. Regulation 43 of the Regulations says that nruch. Here tl.re Chief rules are: to act fairly, in gooci flaitl.r, withor-rt bias, and in judicial temper; to give each party the opportr-rnity of adequately stating his case, and correcting or contradicting any relevant statement prejudicial to his/ her case and not to hear one side behind the back ofthe other. Any complaint about the non observance of the rules ofnatural justice before this stage is with the greatest respect premature and I so hold.

There was a prayer for the oder of prohibition restraining the Solicitor General tiom restraining Applicant's movements. In fact ground 8 of the application is that tlre Solicitor General acted unlawfully when he directed that the Appticant doesn't leave Uganda without his permission. Regulation 36 (4) of the Public Service Commission Regulations is loud and clear. The leamed Ag. Solicitor General acted within his jurisdiction and cannot be faulted.

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I have read and digested the ruling of my brother Mr. Justice Okumu-Wengi on a sirnilar Application DENIS BIREJE V. ATTORNEY CENERAL. Misc. App. No. 902 of 2004. I have great admiration and respect for that eruditejudge but I am not bound by his ruling, In his ruling the leamed judge said:

- " In Uganda the substantive law emunates from the Constitution of Uganda whicl.r in article 42 provides: - " 12, Any person appearing before any administrative offlrcial or body has a right to be treated justly and fairly and shall have the right to apply to a court of law is respect of any adnrinistrative decision against him or her."

With the greatest respect this was tantumount to putting the cart before the horse. The Applicant is apublic officerregardless ofhisrank. He is tlrerefore govemed by the Public Service Commission Regulation. I have l.rerein above comnrented on the effect of Regulation 36 and wish to reitarate that the learned Solicitor General was under no obligation before interdicting the Applicant to give him a hearing. This had to wait the investigation stage. It is at this stage that regulations 43 would come irlto play. This application pre-empted this stage. That cannot be falted on tl.re part of the leamed Ag. Solicitor General.

Let nre comment briefly on the question whether this appiication was brought outside the tin.re permitted by the law. I am not sure that the prir.rciple if continuous cause of action would apply here. How ever it wor-rld appear to me that the letter of interdiction was capable of reviving the cause of action in case it had stalled and would have held so. Be that as it nray, the sun.r total of my ruling is that this application fails with costs to the Respondent. Iso hold.

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J. B. A Katutsi Judge <sup>r</sup>8/03/05

Akampumuza: Matsiko:

Apply for leave to appeal. No objection Application granted.

Court:

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J. B. A Katusti Judge r 8/03/0s

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