In the matter of an application for judicial review by Walugembe (Misc.Civil Cause No.231 of 2018) [2018] UGHCLD 62 (30 November 2018)

## THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

## (CIVIL DIVISION)

## MISCELLANEOUS CAUSE 231 OF 2018

# IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW WALUGEMBE DANIEL ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

ATTORNEY GENERAL ::::::::::::::::::::::::::::::::::::

### BEFORE: HON. MR. JUSTICE BASHAIJA K. ANDREW

#### **RULING:**

Walugembe Daniel(hereinafter referred to as the "Applicant") filed this applicationunder Article 42 of the Constitution of the Republic of Uganda, 1995; sections 33 and 36 of the Judicature Act, Cap 13; Rules 3, 4, 6 and 7 of the Judicature (Judicial Review) Rules, and section 98 of the Civil Procedure Act Cap 71; for Judicial Review seeking the following;

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$of$ certiorari quashing order the $An$ $i)$ recommendation/order/decision of the Commission of Inquiry in the Effectiveness of Law, Policies and $\mathbf{1}$

respect of land in issue be paid to the landlords contrary to the ruling of the High Court of Uganda which ordered that compensation for the above described land be paid to the Applicant through his lawyers M/s. Bashasha & Co. Advocates.

- the iii) quashing $\boldsymbol{An}$ order certiorari $of$ recommendation/order/decision of the Commission of Inquiry in a letter dated 02/08/2018 to the Chairman ULCin respect of land in issue be paid to the landlords contrary to the judgment of the High Court of Uganda which ordered that compensation for the above described land be paid to American Procurement Company Inc. - An order of prohibition prohibiting Ministry of Finance iv) Officials, the ULC and any other Government Department or official from implementing the recommendation, decision or order of the Commission of Inquiry in a letter dated 02/08/2018 to the Chairman ULC directing that compensation in respect of land comprised in Bugangaizi Block 62 Plot 3 be

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paid to the landlords contrary to the judgment of the that Uganda which ordered Court of High compensation for the above described land be paid to American Procurement Company Inc.

An order of certiorari, quashing a decision by the $\boldsymbol{v}$ ) Inspector General of Government (IGG) to investigate yet issue compensation by ULC for land in compensation for the above land was ordered by the High Court of Uganda and the matter is res judicata.

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- A permanent injunction order restraining any vi) Government Department or official or any Commission of Inquiry from interfering with compensation as directed by court relating to land in issue or any other $\mathbf{r}$ plot of land which is a subject of a court judgment or order. - A declaration that the recommendation, order or vii) decision of the Commission of Inquiry contained in $a$ letter dated 02/08/2018 to the Chairman ULC directing that compensation in respect for land in issue be paid to the landlords contrary to the ruling of the High $\overline{4}$

Court of $U_{ganda}$ which ordered that compensation for the above described and be paid to the Applicant through his lawyers M/s. Bashasha & Co. Advocates is illegal and irrational.

viii) A declaration that the IGG to investigate compensation $\mathbf{A}$ in respect to land whose compensation is a subject to court ruling and judgment is illegal and irrational.

#### An order for costs to the Applicant. $ix)$

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The grounds of the application are briefly that;

That compensation for land Kyaggwe Block 358 Plot 2, $i)$ Buyaga Block 161 Plot 4, Buyaga Block 305 Plot 2, Bugangaizi Block\_136, Bugangaizi Block 62 Plot 3 and Buyaga Block 318 Plot 2 was ordered by court and Commission or Government Department or official can review or investigate a matter decided upon by court. the Commission of Inquiry ordered that **That** ii)

compensation in respect of the land comprised in Kyaggwe Block 358 Plot 2, Buyaga Block 161 Plot 4, Buyaga Block 305 Plot 2, Bugangaizi Block 136 Plot 1, Bugangaizi Block 62 Plot 3 and Buyaga Block 318 Plot $\mathsf{S}$

2 be paid to the landlords contrary to the order of the High Court of Uganda.

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iii) It is just and equitable that the decision of the Commission of Inquiry in respect of the land comprised in Kyaggwe Block 358 Plot 2, Buyaga Block 161 Plot 4, Buyaga Block 305 Plot 2, Bugangaizi Block 136 Plot 1, Bugangaizi Block 62 Plot 3and Buyaga Block 318 Plot $2$ be paid to the landlords contrary to the order of the High Court of Uganda be quashed and a permanent injunction be issued restraining the Uganda Land Commission, Ministry of Finance or any other Government Department or official from implementing the decision/order of the Commission of Inquiry contrary to a High Court decision of paying the above compensation to the Applicant.

It is just and equitable that any investigation by the $i\nu$ ) IGG concerning compensation for the land which is subject of court judgment or order is stopped.

The grounds of the application are amplified in the affidavit in support of the application sworn by the Applicant. He essentially

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on $\frac{31}{07/2018}$ , the IGG wrote to the Permanent Secretary Ministry<br>of Figure 10 of Finance, Planning and Economic Development seeking to investigate payments made to the Applicant and American Procurement Company Inc. by ULC. A copy of the letter was attached as Annexture "F".

- The Applicant contends that the IGG has no power to investigate $10$ compensation ordered by court in its judgment in respect of the said lands. Also, that the IGG has no power to investigate payments made to American Procurement Company Inc. in respect of the said land as the said compensation arises from a consent judgment between the Applicant and American Procurement Company Inc. 15 - The Applicant maintains that the decision of the Commission of Inquiry and the IGG dealing with matters already handled by court is illegal, ultra vires and irrational and should be quashed and no Government official or Department should implement or follow any directions or orders touching matters already handled by court. - An affidavit in reply was filed for the Attorney General (hereinafter referred to as the "Respondent") sworn by one Allan Mukamaa State Attorney in the Attorney General's Chambers. He stated that he is familiar with the matters from which this application arises, and

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the Commission of Inquiry or the IGG, besides him not disclosing his source of: $$ his source of information.

The affidavit of Dr. Singiza is a "purported" affidavit in reply given the now settled position of the law. No affidavit in reply or supplementary affidavit can be validly and or properly filed in a matter where an affidavit in rejoinder has been filed by the opposite party and served. See: Mutembuli Yusuf vs. Nagwomu Moses Musamba & Electoral Commission CAEPA No.43 of 2016.

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It follows that Dr. Singiza's affidavitis a vain attempt to cure the fatal defect and it is of no evidential value. It cannot answer to any 15 of the facts sworn to in the affidavit supporting the application. The position of the law is that where facts are sworn to in an affidavit and these are not rebutted or denied by the opposite party, the presumption is that such facts are accepted as true. See: Massa vs. Achen [1978] HCB 297. That would only leave the only affidavit in reply of the Respondent validly on court record being one sworn by $20$ Allan Mukama; subject to its evaluation for veracity and passing the threshold reliability test of evidence. An issue, under Issue No.2, on this particular affidavit was framed and it will be resolved at that stage.

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The following are the issues for determination;

1. Whether this is a fit and proper case for judicial review. 2. Whether Allan Mukama a State Attorney in the Attorney General's Chambers has capacity to depone to matters concerning the action of the Commission of Inquiry and actions of the IGG.

- 3. Whether the Commission of Inquiry is mandated to issue orders contrary to court decisions or judgment in respect of the same subject matter. - 4. Whether the IGG has powers to commence investigations in a matter that has been handled by court.

Resolution of the issues:

Issue No.1: Whether this is a fit and proper case for judicial review.

The power of the High Court to issue orders under Judicial Review is directly derived under section 36 (1) of the Judicature Act Cap 20 13, which provides as follows;

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

(a) mandamus, requiring any act to be $don^e$ ; (b) prohibition, prohibiting any proceedings or matter; or (c) certiorari, removing any proceedings or matter to the<br>High G High Court."

Rule 3 (1) and (2) of the Judicature (Judicial Review) Rules $\Im$ 11 of 2009, is to the effect that a party may apply for an order of $10$ prohibition, certiorari, declaration and injunction by way of judicial review.

Further, in Fuelex Uganda Ltd. vs. Attorney General &Others HCMC No. 48 of 2014 cited in Dr. Daniel K. N. Semambo vs.

## National Animal Genetic Resource HCMC No.30 of 2017; Musota $15$

J (as he then was) held, interalia, that in order to succeed in an application for judicial review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety. Clearly by its nature and from its content, the instant application is one that is permitted under the 20 said rules. Accordingly, Issue No.1 is answered in the affirmative.

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Issue No.2: Whether Allan Mukama a State Attornoy in the<br>Attornow $\alpha$ Attorney General's Chambers has capacity to depone to matters concerning the action of the Commission of Inquiry and actions of the IGG.

It must be emphasized that the only affidavit in reply to the instant application is that of Allan Mukama. He states that he is a State $-10$ Attorney in the office of the Attorney General. He does not state that he works for the Commission of Inquiry or with the office of the IGG. To that effect Allan Mukama has no capacity to depone to matters concerning the said toe bodies.

In addition, Allan Mukama does not state in his affidavit how he $15$ came into possession of the knowledge of the facts he depons to touching and concerning the acts of the Commission of Inquiry or the IGG. He mainly states facts clearlybased on information which evidently came to him as second hand information but whose sources he does not disclose at all. It is settled that second hand $20$ information of that nature should be clearly acknowledged by its source. In Abdu Serunjogi vs. Sekitto [1977] HCB 242, it was held that where an affidavit is sworn and the deponent does not

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disclose his source of information, such affidavit is defective and should not be acted upon. An affidavit must specify the different sources of information of the deponent. The Court of Appeal in Uganda Journalist Safety Committee& Others vs. Attorney General Constitutional Petition No. 07 of 1997emphasized that failure to disclose sources of information will normally render the affidavit null and void, and that an affidavit is not evidence unless it complies with these legal requirements.

Therefore, Allan Mukama's affidavit is fatally defective and cannot be relied upon. It is perhaps the more reason that that the Respondent attempted to "fill in" the gap by filing another purported affidavit in reply by Dr. Singiza well after pleadings had closed. As already stated under Issue No.1, Dr. Singiza's affidavit is of no evidential value on account of it having been improperly filed on court record and it cannot be relied on.

Besides that above, Order 19 r. 3 (1) of the Civil Procedure Rules $\overline{0}$ provides as follows;

> "(1) Affidavits shall be confined to such facts as the deponent is able of his or her own knowledge to prove,

$which$ except $on$ $on \quad \textit{interlocutory} \quad \textit{applications},$ statements of his or her belief may be admitted, provided that the grounds thereof are stated."

From his affidavit, Allan Mukama does not know what transpired in the Commission of Inquiry or the basis upon which the IGG commenced investigations. His affidavit is basically speculative which renders it highly suspect and therefore unreliable.

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The case of Ojok vs. Uganda Revenue Authority (1993) 11 KALR 123, restated the above mandatory legal requirement that affidavits must be confined to such facts as the deponent is able of his knowledge to prove and excludes argumentative contents. In the $15$ instant application, even assuming that the deponent had the capacity to swear the affidavit in reply, which he does not have, the affidavit as a whole is quite argumentative, and as such shall be disregarded. On the principle in *Massa vs. Achen* case (supra) that renders the application unchallenged. Issue No.2 is answered in the negative.

$s$ <sub>ssue No.3</sub>: Whether the Commission of Inquiry is mandated to issue orders contrary to court decisions or judgment in respect of the same subject matter.

In his affidavit in support of the application, under paragraphs 7, 8, 9, 10, 11, 12 and 13 and paragraphs 4 and 6 of the affidavit in rejoinder, the Applicant states that the action of the Commission of Inquiry in issuing orders in respect of a matter decided upon by court is illegal, ultra vires and irrational. The same paragraphs shows that the action of the IGG to investigate a matter already handled and concluded by court is illegal and ultra vires.

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15 Black's Law Dictionary 8<sup>th</sup> Edition, describes "an illegality" as an act that is not authorized by law or the state of not being legally authorized. The Commission of Inquiry, even by stretching its ToR, was never mandated to vary or countermand court orders and judgments. Therefore, any orders passed or directives issued by Commission of Inquiry which are contrary or have the effect of $\overline{20}$ contradicting a court order/judgment in relation to the same subject matter is without doubt illegal and ultra vires.

Black's Law Dictionary 8<sup>th</sup> Edition also describes the phrase "irrational" to mean that which is not guided by reason or by a fair consideration of the facts. Applying the same definition to facts of the instant application, the decision of the Commission of Inquiry is irrational given the existence of a court order/judgment to the contrary on the subject land.

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Further, The Uganda Civil Justice Bench Book at page 341, describes "illegality" to mean ultra vires which ordinarily means exceeding the limits of the power conferred by statute. In the same book, at page 341, it is stated that "irrationality" means unreasonableness. Given these authoritative descriptions, in light of the facts of this application, it would mean that the action of the Commission of Inquiry ordering payments to persons other than personsand the in manner directed to be paid by court is clearly illegal, ultra vires and irrational.

The Respondent raised the issue that this application is premature. As already found above, the competency of the deponent of this affidavit poses serious legal challenge as he had no capacity to swear the affidavit based on information whose sources he did not

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$_{\text{min}}$ mission of Inquiry overstepped its mandate and as such acted gally. Issue No.3: $_{\text{illeg}}$ ally. Issue No.3 is answered in the negative.

Issue No. 4: Whether the IGG has powers to commence Investigations in a matter that has been handled by court. The Inspectorate of Government Act, 2002 under section $19$ (1) provides for the limitation on investigations by the Inspectorate as $\frac{1}{2}$

follows:

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**CHARLES CELEFICERE LEERLE CHARLES AND ARREST**

"(1) The Inspectorate shall not have power to question or $\frac{1}{2}$ review any of the following matters—

(a) the decision of any court of law or of any judicial $\mathbf{a}$ officer in the exercise of his or her judicial functions..."

A perusal of the IGG's letter of 03/07/2018 to the Applicant notifying him of the ongoing investigations concerning land clearly was an attempt to review or question a matter which was already decided upon by court. The compensation for land in issue was $20$ ordered as a result of a court order/judgment. The IGG has no powers under the cited provision of the law to question or review a

$_{\text{ecl}}$ or her indicial of law or of any judicial officer in the exercise $\frac{1}{of}$ his or her judicial functions.

The limitation of the IGG's power was duly pronounced upon by the Supreme Court in Gordon Sentiba & Others vs. Inspectorate General of Government SCCA No 06 of 2008 at page 20, where it was held, inter alia, that the object of the limitations on the powers of the IGG was to preserve the independence of the Judiciary and the finality of the judicial process. A judicial decision between the parties is res judicata between them and should be respected by the parties and all the authorities until set aside in accordance with the law. Given the above stated position of the law, the actions of the IGG to commence investigations into matters which are a subject of a court judgment/decision are illegal and ultra vires.

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It also means that the claim by the Respondent that the application is premature and that the order of the Commission of Inquiry is not final and that the IGG has powers to investigate the $\mathsf{said}$ compensation; are inaccurate and clearly devoid of any legal basis. Issue No.4 is answered in the negative.

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$f^{or}$ the above reason, this application succeeds and it is allowed with the following orders and declarations;

1. An order of certiorari doth issue quashing the recommendation /order/decision of the Commission of Inquiry contained in a letter dated 02/08/2018 to the Chairman ULC from the said Commission of Inquiry directing that compensation in respect of land in issue be paid to the landlords contrary to the ruling of the High Court of Uganda which ordered that compensation for the above described land be paid to the Applicant through his lawuers $M/s$ . Bashasha & Co. Advocates.

2. An order of prohibition doth issue prohibiting Ministry of Finance Officials, the ULC and any other Government or official implementing from Department the recommendation, decision or order of the Commission of Inquiry contained in a letter dated 02/08/2018 to the Chairman ULC from the said Commission of Inquiry directing that compensation in respect of land in issue be paid to the landlords contrary to the ruling of the High

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described land be paid to American Procurement Company $Inc$ .

**CONTRACT**

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- 5. An order of certiorari doth issue quashing a decision by $\frac{1}{2}$ the Inspector General of Government to investigate compensation by ULC in the land in issue for being ultra vires as well as compensation for the above land having been ordered by the High Court of Uganda and the matter is res judicata. - 6. A permanent injunction order doth issue restraining any Government Department or official or any Commission of Inquiry from interfering with compensation as directed by court relating to land in issue or any other plot of land which is a subject of a court judgment or order. - 7. The recommendation, order and /or decision of the Commission of Inquiry contained in a letter dated 02/08/2018 to the Chairman ULC from the said Commission of Inquiry directing that compensation in respect of land in issue be paid to the landlords contrary to the ruling of the High Court of Uganda which ordered that compensation for the land in issue be paid to

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