Jamada K. Luzinda v Attorney General (Miscellaneous Cause No. 64 of 2010) [2012] UGHCCD 303 (1 June 2012)

Full Case Text

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

### CIVIL DIVISION

### MISCELLANEOUS CAUSE NO. 064 OF 2O1O

MADA K. LUZINDA APPLICANT

## VERSUS

ORNEY GENERAL RESPONDENT

### BEFORE: HON. LADY JUSTICE ELIZABETH MUSOKE

#### LING

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e applicant filed this application by way of Judicial Review under Articles Sd and 43 of the Constitution, 1995, S. 3 of the Judicature (Amendment) n{t frfo. 3 of 2OO2 & Rules 3, 4, 5, 6, 7 and 8 of the Judicature (Judicial refiew) rules, 2009, for:

- la) An order of certiorari to quash the decision dismissing the applicant I Uo, the civil service with no terminal benefits and pension. - b) Special and general damages. - lc) lnterest on (b) at the commercial rate from the date of accrual of | "rur" of action till full payment.

grounds on which the application is based are:

- The appointing authority's dismissal of the applicant was in breach of the rules of natural justice and further constituted an error on the face of the record. - i) The applicant's dismissal was due to political persecution. - ii) The applicant is entitled to enforce the protection of his rights and freedom as enshrined by Article 50 of the constitution.

iv) lt is just and equitable that the orders sought be granted.

background to this application is that the applicant was employed in Civil Service as an Assistant Examination Secretary in February 1965 was confirmed in 1967. He was promoted in 1970 to the post of pector of Schools; and in 1975 to the post of Foreign Service Officer; d later in 1976 to Permanent Secretary. ln April 1979 he was suspended d later dismissed by a letter dated 1"t December 1980.

e applicant stated in his affidavit in support that he was summarily mlssed from the Civil Service without hearing in 1980 and he appealed relevant Government offices such as Ministries of Public Service, Justice d Constitutional Affairs. The Solicitor General pronounced himself on the atter in his letter dated l"tApril 2010 stating that the dismissal and rfeiture of terminal benefits was lawful. ln his affidavit in rejoinder the plicant stated that due to threats from both civilian and military officials c

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fled into exile in Kenya and upon his return in September 1984, he nt about his dismissal

the other hand the respondent through their affidavit in reply dated /2011 deponed to by Kosia Kasibayo stated that the application is din law, and that the power to dismiss and appoint was vested in the ( ary Commission at that time. He further stated that once a public r is dismissed from office as was done in the present case, that officer t entitled to terminal benefits.

respondent raised a preliminary point of law that this suit is time barred should be dismissed with costs. The respondent submitted that the ant law at the time of the dismissal in 1980 was the Judicature Act (repealed). Section 34 thereof provided for prerogative orders, while on 34(5) and (6) provided for an application for, inter alia, certiorari in fied proceedings, to be made within six months or such shorter period ay be prescribed after the act or omission to which the application for related. The said law provided that before an application for judicial could be entertained the aggrieved party had first to seek leave six months. This law was repealed by the 1996 Judicature Act which es under Section 36(7) that an application for judicial review had to de promptly and in any case within three months from the date when lw pplication arose, unless court for good reason extended the time. ntly the law governing Judicial review is the Judicature (Judicial ) Rules 2009, Rules 3 and 9 of which provide that the time within to bring an application for judicial review shall be within three months

the date when the grounds of the application first arose. lt is ortant to note that the Judicature Act, Cap 13, and Judicature (Judicial iew) rules 2009 have no retrospective provisions seeking to apply their isions to matters before 1996.

the respondent's submission that the applicant was dismissed in 1980 chose not to challenge the dismissal then. The applicant states that he of the dismissal in 1984. Even if this were so, the applicant slept on ights and chose not to challenge the decision of the military ission in court under the relevant laws after he was informed of his ssal in 1984. No action was taken by the applicant since 1980 - 1984 m 1984 -2002 to address his dlsmissal.

espondent further relied on the Civil Procedure and Limitation llaneous Provisions) Act Cap 72, Section 3(2) to state that the action so barred by the above law which is to the effect that no action d on contract shall be brought against Government after expiry of ears. The applicant was engaged in a contractual relationship with ndent and hence was affected by the said law.

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refully considered the submission of Counsel on both sides and I ith Counsel for the respondents that the applicant slept on his rights e not to challenge the decision of the Military Commission in court elevant laws that were in place at the time of dismissal in 1908, or 984 when he allegedly learnt of the dismissal.

issal on 1"t November 1984 from the Permanent Secretary Office of President stating that the applicant had been suspended, and equently dismissed in 1980. He ought to have appealed then to the vant authorities but he did not do so until 2002, 18 years later. T{e applicant alleges that he exercised his right of appealing to the relevant authorities. However, this was not done until 2002 when the aflplicant wrote a letter to the Minister of Public Service to reconsider and rerierse the dismissal. The applicant states that he received the letter of

e with Counsel for the respondent that not only is the applicant time under the Judicature Review Rules (supra) the applicant's action is outside the time prescribed and set under the Civil Procedure and ation (Miscellaneous Provisions) Act Cap 72, S. 3 (2) which provides no action provided on contract shall be brought against the rnment after the explration of three years. The relationship between t{vo oarties was contractual.

pplicant slumbered too much and delayed to bring his claim to the nt authorities/court. Moreover no reason has been given for this delay. In Odinga & Ofhers Vs Nairobi City Council [1990 - 1994] EA 482, held that:

'An application for Judicial Review, may it be for an order of mandamus, rohibition or certiorari, should be made promptly and in any event within a aximum period of six months within the date when the grounds of the plication arose. The plaintiff's application was made after the lapse of 14 onths and was therefore time barred."

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is court is persuaded by Ro/and Browne Vs Public Service Commission VAP 023 of 2010 (Saint Lucia) relied on by the respondent where court Sefved that "in exercising its discretion as to whether to grant any retief the court take into account other factors including that there was unreasonable delay before ing the application, whether the claimant acted promptly, or whether it would be mental to good administration or cause substantial hardship to the rights of any on, or substantially prejudice the rights of any person."

letter from the Solicitor General cannot be said to constitute the nds giving rise to this application since the Solicitor General was not appointing authority. The applicant had remedies available to him from when he got to know of his dismissal. He did not do anything to try to dy his plight.

urt's view, this application will occasion substantial hardship and/or dice to the respondent if granted. This application is incompetent and ht by undue delay and is hereby dismissed with costs. r5

II IS {o ordered.

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eth Musoke

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