Hon. Elilu Paul and Another vs Soroti City West Division (Miscellaneous Cause No. 9 of 2022) [2022] UGHC 88 (7 October 2022)

Full Case Text

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The Republic of Uganda

## In The High Court of Uganda at Soroti

Miscellaneous Cause No. 09 of 2022

In The Matter of Rule 6 of The Judicature (Judicial Review)

### (Amendment) Rules No. 32 of 2019

## And

In The Matter of Section 33 And 36 of The Judicature Act, Cap 13

## And

In The Matter of an Application for Judicial Review by Hon. Elilu Paul and Hon. Ocen Joseph

For

## Orders of Certiorari, Declarations and Injunction against Soroti City West Division

**:::::::::::::::::::::::::::::::::::::** 1. Hon. Elilu Paul

2. Hon. Ocen Joseph

Versus

Soroti City West Division ::::::::::::::::::::::::::::::::::::

## Before: Hon. Justice Dr Henry Peter Adonyo

**Ruling**

### 1. Background: 25

The Applicants jointly brought this application against the Respondents jointly and severally, under Article 28,42 & 44 of the constitution of the constitution, Section 33,

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36 and 38 of the Judicature Act, Cap. 13; and Rule 6 of the Judicature (Judicial $\mathsf{S}$ Review) Rules).

The Application is supported by the affidavits of the applicants herein which has been read and relied upon in making this decision but briefly the grounds are;

- That the applicants were never heard or given an opportunity to be heard as required by Article 28 of the constitution and the principles of natural justice. - That the censure procedure provided for by the Local Government Act and the Rules of procedure of the council were not followed in censoring the applicants. - The application has been brought without delay and this honorable court has inherent power to grant the prayers sought. - Accordingly, the applicants are seeking for declarations that; 15 - An order of certiorari doth issue against the respondent quashing its decision in Min. 09/CSCWD/22/02/2022 and Min: 06/CSCWD/28/2022 respectively made by the respondent censoring the applicants' executive positions as the secretary works, Environment and production Department and Deputy Mayor Soroti West Division council respectively. - A declaration that the decision by the respondent to censor the applicants from their executive positions was illegal, irregular, unlawful, high handed and unfair when they failed to follow the legal process and accord them a fair hearing. - An order of mandamus compelling and directing the respondent to restore the applicants in their executive positions as secretary works, Environment and production department and Deputy Mayor Soroti west Division council. - An injunction restraining the respondent from interfering with the applicants' $\overline{a}$ position as secretary works, Environment and production Department and Depute Mayor Soroti West Division Council. - General damages of Ugx 300,000,000/= for causing the applicants psychological torture and mental anguish.

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- Aggravated damages of Ugx 100,000,000/ $=$ - Interest at 30% on (e) and (f) above

Costs of this application be provided for.

The applicants swore affidavits to support the motion as briefly seen below;

That on the $22^{nd}$ /January/2022 while at the mayor's office is when the division Mayor showed them a copy of a letter bearing their names which shocked them as they have never been accused of any misconduct or any act in the course of

executing their duties to warrant my censure. That they waited to be served with a copy of the petition but unfortunately, they were never served or received by the clerk to council either and neither was it served on the applicants who were to be censured as required by the law. That on $22^{nd}/02/2022$ , Hon Opio Vincent on a surprising move again while they

were attending council session presented a fresh petition titled

# "Vote of censure and removal of Hon. Ocen Joseph from office of Deputy Mayor and the Secretary Works Hon. Elilu Paul Soroti **City West Division"**

That the petition dated $22^{nd}/02/2022$ was not signed by the seconders neither was it brought to the attention of Sergeant-At-Arms and it received and signed by the

clerk to council as required by the law. That the petitioner forged the signatures of one of the purported seconders in the names of Alum Joyce, councilor senior quarters and Pamba in order to portray as

if she also seconded the petition. That they were not served with a copy of the censure motion prior to council sitting of $22^{\rm nd}$ /022022 in fact and were shocked to hear that the clerk to council read out the censure motion to the house yet they were entitled to a copy of the petition 14

days before it is tabled on the floor. That unlike the censor petition dated $13^{th}$ January 2022 which the petitioner had presented earlier, the council sitting held on $22^{nd}/02/2022$ rather tabled the petition dated $22^{nd}/02/2022$ for deliberation and made recommendations for their censure from executive positions in council instead of first dealing with the petition dated $13^{\text{th}}/01/2022$ .

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- The respondents in reply as stated in their affidavit in reply sworn by Ocen Ambrose the City Clerk denies the affidavits in support of this application to the extent of their $\mathsf{S}$ inconsistence with the affidavits. In that affidavit in opposition to this application, it is stated; - That on $22^{nd}$ February, 2022, a written motion was made to cause the debate on the matter, the debate was done, due to lack of order, the matter was not voted on and no decision was made to remove the applicants. - That he was not aware of any other petition, annexure 'B' to the affidavits in support of the motion. - 2. Submissions: - The parties herein through their counsels filed written submissions with Counsel for the applicant firstly raising a preliminary objection regarding the capacity under which Ocen 15 Ambrose, the Town Clerk disposed to the affidavit in reply arguing that the matter before this Honourable Court was in regards to the decision in Min. 09/CSCWD/22/02/022 and Min.06/CSCWD/28/03/022 made by the respondent Soroti City West Division Council censoring the applicants from their executive positions. That the deponent in his affidavit in reply to the application did not disclosed whether he was well conversant with the facts 20 touching the application in court as matters responded to are not matters affecting the Soroti City but only Soroti City West Division which has a substantive clerk who has power to conduct business arising within the jurisdiction of Soroti City West. - The preliminary objection raised herein touches on the law relating to affidavits which is provided under Order 19 rule 1 of the Civil Procedure Rules which states that any 25 court may at any time for sufficient reason order that any particular fact may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the court thinks reasonable, except that where it appears to the court that either party bona fide desires the production of a witness for cross-examination and that such witness can be produced, an order shall not be made authorizing the evidence of that 30 witness to be given by affidavit. In arguing the preliminary objection, counsel for the applicant cited the case of Paulo Ssemogerere and Olum v. A. G Constitutional

Petition No.3 of 1999 wherein Berko JA held that except in purely interlocutory $\mathsf{S}$ matters, affidavits must be restricted to matters within the personal knowledge of the deponent and not based on opinion.

Counsel also cited the case of *Eseza Namirembe vs Musa Kizito [1972] ULR 88* where the matter was dismissed amongst other reasons because the supporting affidavit did not distinguish between matters stated on information and belief and those deposed to on the deponent's knowledge.

According to Counsel for the Applicant Mr. Ocen Ambrose had not disclosed the capacity under which he was swearing the affidavit on behalf of another entity and neither has he disclosed the source of the source of the facts in his affidavit.

However, a look at the affidavit in reply sworn by Ocen Ambrose shows that it discloses 15 the fact that he swore the affidavit in reply to this application in his as the City Clerk of Soroti City and that he did so arising from the fact that indeed he was knowledgeable of the fact that a censure petition against the applicants was filled on 13th January, 2022 and that the same was not debated on the same day to allow the requisite statutory time. He further states that on $22^{nd}$ February, 2022, a written motion was made to cause the debate on the matter, the debate was done, due to lack of order, the matter was not voted on and 20 no decision was made to remove the applicants. That he was not aware of any other petition other than that as stated in Annexure 'B' to the affidavits in support of the motion.

A look at minutes of the meeting held on 22/02/2022 to censure the applicants, that is Annexture D1 show that the deponent of the affidavit in reply to this application, that is, 25 Ocen Ambrose was present in the said meeting and is recorded as attendee No. 41 under the Technical Staff in Attendance. This means that, the facts deposed by him were based on his knowledge as required by the law.

Given this position, I would overrule the preliminary objection raised as it is not based any real fact but is speculative.

## 3. Resolution of this Application:

I now turn to the consideration of this application. From the affidavit in reply it is averred that the application was filed out of time and not amendable for Judicial Review.

A look at this application show that it was filed on 7th June 2022 while the impugned censure action occurred on 22nd January 2022.

Section 33 of the Judicature Act provides for general provisions as to remedies. It 10 states that the High Court shall, in the exercise of the jurisdiction vested in it by the Constitution, this Act or any written law, grant absolutely or on such terms and conditions as it thinks just, all such remedies as any of the parties to a cause or matter is entitled to in respect of any legal or equitable claim properly brought before it, so that as far as possible all matters in controversy between the parties may be completely and finally 15 determined and all multiplicities of legal proceedings concerning any of those matters avoided.

Section 36 of the Judicature Act provides for judicial review. It provides that the High Court may upon application for judicial review, grant any one or more of the following reliefs in a civil or criminal matter—

- an order of certiorari; - removing any proceedings or matter into the High Court, - an injunction to restrain a person from acting in any office in which he or she is not entitled to act. - $25$

The Court may upon any application for judicial review, in addition to or in lieu of any of the reliefs specified in subsection, award damages.

Section 38 of the Judicature Act provides that the High Court shall have power to grant an injunction to restrain any person from doing any act as may be specified by the High Court.

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Rule 5 of the Judicature (Judicial) Review Rules provide for an application $\mathsf{S}$ for judicial review to be made promptly but in any event within three months from the date when the grounds of the application first arose, unless the court considers that there is good reason for extending the period within which the application shall be made. That provision of the law uses the word "Shall" which means that an application for judicial review is mandatorily required to be made promptly within three months from the date 10 when the grounds of such an application for judicial review first arose.

A look at the application show that between the time of the impugned censure and the time of this application is more than four (4) months apart which is beyond the time provided for by the law.

No application was made for the extension of such a time within which to file this 15 application which means that this application was filed out of time.

However, Rule 5 of the Judicature (Judicial) Review Rules gives the court a leeway for it states that where the court considers that there is good reason for extending the period within which the application, it should grant such an extension.

A look at this application show to me that it involves representation of the population, the 20 ultimate owners of the democracy which we all cherish. Given this consideration, I would find that the applicants have good reason for bringing this application, though it was brought out of time. This Honourable Court thus would not be inclined to dismiss this application merely on the basis of such a technicality yet the issues raised by the applicants go to the root of justice and democracy and which if ignored by court will be a 25 miscarriage of justice. The application shall thus be heard and considered on its own merits in the interest of justice.

Rule 7A of the Judicature (Judicial Review) Rules provides for factors to consider in handling applications for judicial review and these are;

(1) The court shall, in considering an application for judicial review, satisfy itself of the 30 following;

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(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

I will consider whether this application satisfies and complies with the requirements laid down in Rule 7A of the Judicature (Judicial Review) Rules above.

a. That the application is amenable for Judicial Review:

Rule 3 (1) and (2) of the Judicature (Judicial Review) Rules SI 11 of **2009** provides that a party may apply for an order of prohibition, certiorari, declaration and injunction by way of judicial review in appropriate case.

Rule 3A of the Judicature (Judicial Review) (Amendment) Rules SI 32 of 15 **2019** provides that;

> Any person who has a direct or sufficient interest in a matter may apply for judicial review.

Section 36 (1) of the Judicature Act Cap 13 provides for the power of the High Court to issue orders under judicial review. It provides as follows;

(1) The High Court may make an order, as the case may be, of-

(a) mandamus, requiring any act to be done;

(b) prohibition, prohibiting any proceedings or matter; or

The Applicants have shown by their affidavit evidence that they are persons who have 25 direct sufficient interest in the matter herein deposed and that they are aggrieved by the decision of council to censure them from their executive positions for according to *Min:*

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09/CSCWD/22/02/022 and Min: 06/CSCWD/28/03/022, one Hon. Opio $\mathsf{S}$ Vincent presented a censure petition in the council of Soroti City West Division accusing the applicants of committing acts of gross misconduct in his paper titled "Vote of Censure and Removal of Hon. Ocen Joseph from the office of the Deputy Mayor and the Secretary Works Hon. Elilu Paul Soroti City West Division" dated 22nd February, 2022. This paper was presented to the full council during its sitting. 10

The respondent, while agreeing that the said paper was presented argues that indeed a written motion was placed before the council to cause a debate on the matter, the debate was done but due to lack of order paper, the matter was not voted on and no decision was made to remove the applicants.

- The assertion of the respondent, however, is not borne by any fact for in the meeting of 15 Soroti City West Division under minutes of the full council meeting dated 22/02/2022 held at the Council Hall it can clearly be seen under Min: 09 / CSCWD / 22 / 02 / 022 Censure Motion, that a resolution censuring the applicants was presented it was fully debated and at the end of it and I quote; - "Oderai Majengo Council ruled a motion for the removal of the duo seconded by male councilor Amoru. Speaker advised the Mayor to implement the decision and report in the subsequent meeting."

The said minutes are signed by the Speaker of the Division Hon. Okello Daniel and the Clerk to the Council Anomot Emmanuel. This means that the censure motion was acted upon by the respondent through a debate and a resolution. This factor is satisfied.

(b) That the aggrieved person has exhausted the existing remedies available within the public body or under the law.

The applicants state that on the 22nd January 2022 while at the Mayor's office, the Division Mayor showed them a copy of a letter bearing their names whose content which was to the fact that they were censured shocked them given the fact that they were not previously aware that they had been accused of any misconduct or any act in the course

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of executing their duties to warrant their censure. That they waited to be served with a 5 copy of the petition but were never served nor did they receive any petition from the Clerk to Council as required by the law. That on 22 / 02/ 2022, Hon Opio Vincent through surprising move while they were attending council session presented a fresh petition titled

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## "Vote of Censure and Removal of Hon. Ocen Joseph from Office of Deputy Mayor and The Secretary Works Hon. Elilu Paul Soroti City **West Division"**

According to the applicants, the petition was dated 22/02/2022 was not signed by its seconders and neither was it brought to the attention of Sergeant-At-Arms and received and signed by the Clerk to Council as required by the law. The petitioner also had allegedly 15 forged the signatures of one of the purported seconders called Alum Joyce, a Councilor for Senior Quarters and Pamba Wards in order to portray the secondment of the petition.

The applicants further aver that since they were not served with a copy of the censure motion prior to council sitting of 22/02/2022, they were shocked to hear that the Clerk

to Council read out the censure motion to the House, it was debated and passed with the 20 Division Speaker then asking the Division Mayor to implement and report to the Council yet the applicants aver that they were entitled to a copy of the petition 14 days prior to it being tabled on the floor of the House which action made them aggrieved thus seeking court intervention to quash the illegal decision of the Division Council by way of an order

## of certiorari. 25

Certiorari is a prerogative order is an order issued by the High Court designed to control courts inferior to it, tribunals, administrative and statutory authorities.

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) held that certiorari was a prerogative writ issued by the High Court to quash a decision which is *ultra vires* or is vitiated by an error on the face of the record.

In Re: Mustafa Ramadhan [1996] KALR 86 at p.87 and Owor Arthur & 8 Ors $\mathsf{S}$ v. Gulu University H. C. M. A No. 0018 of 2007, it was explained that no order of certiorari can issue unless it is premised on a decision of a body that was mandated to determine a dispute.

In Stream Aviation Ltd v. The Civil Aviation Authority Misc. Application No. 377 of 2008 (Arising from Misc. Cause No. 175 of 2008) V. F. Musoke Kibuuka, 10 J held that the prerogative order of certiorari is designed to prevent the access of or the outright abuse of power by public authorities. The primary object of the prerogative order is to make the machinery of Government operate properly, according to law and in the public interest.

The prerogative order of Certiorari is issued to quash decisions that are ultra vires or 15 which are vitiated by error on the face of the record or are arbitrary

and oppressive.

## In Re An Application by Bukoba Gymkhana Club (1963) E. A. 473 and Haji Mohamed Besweri Kezaala Vs. The IGG and 2 Others Misc. Appl. No.28 of

- 2009 (unreported). The concept of fairness in the adjudication as well as in 20 administrative decision-making, where the body or public officer making the decision has a duty to act judicially or in a quasi-judicial manner is well entrenched in our law. The principle of natural justice contains two necessary and obligatory rules or human conduct promulgated by nature through human reason. As known to Ugandan law, the rules of natural justice stand out as two prominent rules which are known and observed 25 throughout the civilized world. - They are: - *nemo judice in causa sua* (no person shall be a judge in his or her own case)

*audi alteram partem* (hear the other party).

The above two are rules or principles of natural justice and according to the Court of $\mathsf{S}$ Appeal of Uganda in Marko Matovu & 2 Others Vs. Sseviri & Another, Civil Appeal No.7, of 1978, they must be observed by both judicial and administrative bodies.

In *Abbot Vs. Sullivan [1952] 1 ALL. E. R. 226.* The two rules of natural justice must be observed by all bodies and public officers who have a duty to act judicially or quasijudicially.

The modern view is that the duty to act fairly applies to all public decision making process with Article 42 of the Constitution of the Republic of Uganda leaving no doubt about the proposition. Also See: Halsbury Laws of England 4th Ed., Para 84.

In the instant case, the applicants were apparently censured without following due 15 process. It is their prayer that court issues an order of certiorari and mandamus and an injunction against the respondent an administrative body. However, before parties come to court, they should show court that they exhausted all internal remedies before coming to court. The applicants stated that, they were not given the opportunity to be heard in the council debate. 20

Rule 7A (2) of the Judicature (Judicial Review) (Amendment) Rules SI 32 of **2019** states that the court shall grant an order for judicial review where it is satisfied that the decision making body or officer did not follow due process in reaching a decision and that, as a result, there was unfair and unjust treatment.

Section 21 of the Local Government Act provides for censure against member of $25$ District Executive Committee. It provides as follows;

- A council may, by resolution supported by not less than half of all the $(1)$ members of the council, pass a vote of censure against a member of the district executive committee. - Proceedings for censure shall be initiated by a petition to the chairperson $(2)$ through the speaker, signed by not less than one-third of all the members of

the council, to the effect that they are dissatisfied with the conduct or performance of the member of the district executive committee.

- The chairperson shall upon receipt of the petition cause a copy to be given $(3)$ to the member of the district executive committee in question. - The motion of the resolution of censure shall not be debated until the expiry $(4)$ of fourteen days after the petition is sent to the chairperson. - A member of the executive committee in respect of whom a vote of censure $(5)$ is debated under subsection (4) is entitled to be heard during the debate.

The above provision of the law is applicable *mutatis mutandis* to lower government council meetings.

The perusal of the Minutes of the Full Council meeting of Soroti City West Division held 15 at the Council Hall and dated 22/02/2022and marked herein as 'Annexture D1' show that the applicants were during the debate on the motion to have them censured were not given the opportunity to be heard. Their right to fair hearing was not accorded. It was in that meeting where they should have been given the opportunity to defend themselves but alas that was not to be and so it can be safely concluded that by coming to this court, 20 the applicants were left with no other alternative and so the applicants are properly before this court hence this ground is thus satisfied.

## (c) That the matter involves an administrative public body or official.

The applicants brought this application to court against Soroti City West Division which is part of Soroti City. In May 2019, the Cabinet of Uganda approved the creation of 15 25 cities, in a phased manner, over the course of the next one to three years.

Seven (7) of the fifteen (15) cities started operations on 1 July 2020 as approved by the Parliament of Uganda. Soroti City was one of them. Soroti is a city in Eastern Region of Uganda. It is the main City, commercial, and administrative center in curved out of Soroti

District, one of the nine administrative districts in the Teso sub-region. It consists of 30 Soroti City East Division and Soroti City West Division. Each division has wards and other administrative units.

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Soroti City was approved for operationalization ahead of schedule by the Parliament of $\mathsf{S}$ Uganda in the Financial Year 2020/2021 virtue of the Article 179 of the Constitution of Uganda and Section 7 (2a) of the Local Governments Act CAP.243.

Since Soroti City was approved for operationalization ahead of schedule by the Parliament of Uganda in the Financial Year 2020/2021 virtue of Article 179 of the Constitution

of Uganda and Section 7 (2a) of the Local Governments Act CAP.243. It can be 10 concluded that it an administrative body within the meaning of the law above.

4. Conclusion:

Given the fact that the applicants have satisfied all the factors required in the issuance of the orders sought herein as resolved above, this application is allowed accordingly.

15 5. $\overline{\text{Orders:}}$

- It is hereby **Declared** that the decision by the respondent to censure the $\overline{a}$ applicants from their executive positions is illegal, irregular, unlawful, high handed and unfair when they failed to follow the legal process and accord them a fair hearing. - An Order of Certiorari doth issue against the respondent quashing its decision Min.09/CSCWD/22/02/2022 in Min.06/CSCWD/28/2022 and respectively, made by the respondent censuring the applicants' executive positions as the Secretary Works, Environment and Production Department and Deputy Mayor Soroti West Division council; respectively.

An Order of Mandamus is hereby issued compelling and directing the respondent to restore the applicants in their executive positions as Secretary Works, Environment and Production department and Deputy Mayor Soroti West Division Council.

**An Injunction** is hereby issued restraining the respondent from interfering with the applicants' position as Secretary Works, Environment and Production Department and Depute Mayor Soroti West Division Council.

- No order for General and Aggravated damages is issued against the respondent by this Honourable Court. This is to encourage harmonious relationship in the Divisional Council. - No order of Costs is awarded in this application as this is a matter of public importance and concern which resolves around democratic principles of conduct of public business and the justice of the matter.

I so order.

**Hon. Justice Dr Henry Peter Adonyo**

**Judge of the High Court**

7th October 2022

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