Kagga-Bbira & 2 Others v Attorney General (MISCELLANEOUS CAUSE NO. 177 OF 2018) [2020] UGHCCD 40 (20 March 2020)

#### 5 **THE REPUBLIC OF UGANDA**

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

#### **(CIVIL DIVISION)**

#### **MISCELLANEOUS CAUSE No. 177 OF 2018**

#### **IN THE MATTER OF APPLICATION FOR JUDICIAL REVIEW FOR**

10 **DECLARATION, ORDERS OF CERTIORARI AND PROHIBITION IN THE MATTER OF THE JUDICATURE ACT, RULES 3, 5, 6 AND 8 OF THE JUDICATURE, JUDICIAL REVIEW] RULES, S. I NO. 11 OF 2009**

#### **1. MOSES KAGGA BBIRA**

15 **2. SERUNJOGI FAISAL 3. LUBEGA JAMIRU::::::::::::::::::::::::::::::::::::::::::::::: APPLICANTS**

#### **VERSUS**

## **THE ATTORNEY GENERAL OF UGANDA :::::::::::::: RESPONDENT** 20 *BEFORE HON. MR. JUSTICE BASHAIJA K. ANDREW*

#### *RULING:*

The Applicants jointly brought this application against the Respondent under judicial review pursuant to Section 36 of the Judicature Act; Rules 3, 5, 6 and 8 of the Judicature, (Judicial 25 Review) Rules, S. I No. 11 of 2009; for reliefs that;

- 5 *a)A declaration that the Land Commission of Inquiry has no powers to interfere with the suit property Kibanja with rental units at Kyengera which is subject of Court matters.* - *b) An orderofcertiorari quashing the decision made by the Land Commission of Inquiry from interfering with the suit* 10 *property.* - *c) An order in the form of damages to be paid to the Applicants.*

#### *d) Costs of the application be paid to the Applicants.*

The grounds are set out in the application and amplified in the Applicants' affidavits, but are briefly that in 2016 the 1 15 st Applicant purchased the suitproperty from the 2 nd Applicant who handed over the agreement between him and the former owner the 3 rd Applicant and the 1 st Applicant took possession of the property. In and around January 2018, a one Namutebi Safina went on property 20 claiming ownership of the same which attempt was refuted. The said Namutebi Safina then filed Civil Suit No. 52 of 2018 against the Applicants in the High Court (Land Division). She sought for interim reliefs which the court declined to grant. She then abandoned the suit in court and chose to lodge a complaint with

5 the Land Commission of Inquiry which made decisions in respect of the suit property. The Commission wrote a letter directing the District Police Commander Wakiso District to provide security so that a one Namutebi Safina can repossess the suitproperty. Subsequently the Applicants sought an order for a temporary 10 injunction which was granted by this court to maintain the status quo. That it is procedurally and legally wrong for the Land Commission of Inquiry to interfere, discuss matters and take decision over the suit property when there are active court matters where the same property is subject. That it is in the interest of 15 justice that this application is granted.

The application is supported by four affidavits of the Applicants including supplementary affidavit dated the 10 th April 2019 which are essentially amplifying the grounds above and hence need not to be reproduced in detail. The Respondent neither filed an affidavit in 20 reply nor appeared in court when the matter came up for hearing despite being duly served with the hearing notice and proof of service filed on court record. Court thus preceded *ex perte* under Order 9 rule 20(1)(a) Civil Procedure Rules. Counsel for Applicants

5 filed written submissions, which court has considered in this ruling. The following are the issues framed for court to determine;

#### *1. Whether this is a fit and proper case for judicial review.*

- *2. Whether the Commission of Inquiry into Land matters is mandated to interfere into, and investigate matter which* - 10 *are subject to court proceedings and make final decisions over such disputes.* - *3. Whether the Applicants are entitled to the remedies sought. Resolution of issues:*

*Issue No.1: Whether this is a fit and proper case for judicial* 15 *review.*

The principles and the law that govern judicial review are well established. In *Clear Channel Independent Uganda vs. PPDA H. C. M. A No. 380 of2008***,** judicial review is stated as;

*"…the process by which the High Court exercises its* 20 *supervisory powers over the proceedings and decisions of inferior courts, tribunals and other bodies or persons who carry out quasi-judicial functions or who are engaged in the performance of public acts and duties."*

5 Article 42 of the Constitution, which is the bedrock of judicial review, recognizes the rightof any person to apply to a court of law for judicial review against public bodies and/or agencies. It provides as follows;

# *"Any person appearing before any administrative official* 10 *or body has a right to be treated justly and fairly and shall have a right to apply to a court of law in respect of any administrative decision taken against him/her."*

Thus, the right of any person to apply for judicial review is now recognized as a Constitutional right, as it was held in

15 *International Consultants Ltd. vs. Jimmy Muyanja & 2 O'rs H. C. M. C No. 113 of 2018.* In that case, the court further held that, in accordance with Article 44 of the Constitution, the right cannot be derogated from.

In the instant application, the Applicant is challenging the decision

20 of the Land Commission of Inquiry to interfere, discuss matters and take decision over the suit property when there are active court matters where the same property is subject. In *Walugembe Daniel vs. Attorney General HCMC No. 231 of 2018* citing *Fuelex*

5 *Uganda Limited vs. The Attorney General & Others HCMC No. 48 Of 2014,* which was cited in *Dr. Daniel K. N. Semambo vs. National Animal Genetic Resource, HCMC No. 30 of 2017,* the settled position is that in order to succeed in an application for judicial review, the Applicant has to show that the decision or act 10 complained of is tainted with illegality, irrationality and procedural impropriety.

The facts of the instant case show clearly that itis one that is amenable for judicial review. It seeks to challenge the decision making process of the Land Commission of Inquiry and theexercise 15 of the powers by the said Commission. Therefore, the application is one envisaged under *Rule 3 of the Judicature (Judicial Review) Rules 2009 as amended by SI No.32 of 2019*. Issue No.1 is answered in affirmative.

*Issue No.2: Whether the Commission of Inquiry into Land* 20 *Matters is mandated tointerfere into, and investigate matter which are subject to court proceedings and make final decisions over such disputes.*

- In paragraph 5 of the 1 st <sup>5</sup> Applicant's affidavit, he states that it is procedurally and legally wrong forthe Commission of Inquiry to interfere, discuss matters and take decision over the suit property when there are active court matters where the same property is the subject matter. Further, under paragraph 2 of his supplementary 10 affidavit, that among others, that Dr. Douglas K. Singiza of the said Commission, wrote a letter addressed to District Police Commander Wakiso District, requesting for security to the bearer of the said letter so that she could reposes the suit property. *In Muganzi Charles vs. Hon. Nantaba Idah Erios – State Minister of Lands,* - 15 *Housing and Urban Development, HCMC NO. 21 OF 2013*, Murangira, J, while considering a case of similar circumstances held, inter alia, that;

*"… I agree with Counsel for the applicant that the Respondent should be prohibited from handling the* 20 *matter concerning the suit land for the fact that the matter is the High Court of Uganda, at Nakawa…. The Minister, the Respondent, to usurp the mandate given to Courts by the Constitution of the Republic of Uganda is* # 5 *certainly wrong and unconstitutional. I am afraid, her actions if not prohibited might cause more harm than good in the locality where the suit land is located…"*

In addition, *Section 6 of the Commissions of Inquiries Act Cap 166,* which spells out the mandate of the Commission provides as 10 follows;

#### *"6. Duties of commissioners.*

*The commissioners shall, after taking the oath or making the affirmation as provided in section 4, make a full, faithful and impartial inquiry into the matter* 15 *specified in the commission; conduct the inquiry in accordance with the direction, if any, in the commission; in due course, report to the Minister, in writing, the result of the inquiry; and also, when required, furnish to the Minister a full statement of the proceedings of the* 20 *commission and of the reasons leading to the conclusions arrived at or reported."*

- 5 Nowhere in the provisions above is the Commission empowered or supposed to make decisions and /or issue orders with the effect of granting remedies that a party has failed to obtain from court as was the case in the instant matter. There is also nothing like hearing and reaching decisions/judgments in respect of complaints 10 brought before it. The Commission had no powers whatsoever to make orders with the effect that Namutebi Safina repossess the suit property while she had already filed HCCS No. 52 of 2018 in which she is claiming the same suit property which she now brought to the Commission's attention. By issuing the orders as itdid in the 15 said letter, the Commission of Inquiry was interfering in a matter which is already a subject of proceedings in the High Court, Land Division, and as such the Commission acted *ultra vires* its mandate under the *Commission of Inquiry Act* (supra); which is illegal and unconstitutional. - 20 Similarly, it is easily discerned from the facts in evidence that in coming to the decision it did, the Commission of Inquiry never accorded the Applicants any hearing let alone a fair hearing. This contravened the *audi altarem patem* rule and violated the principle

5 of natural justice. Any decision arrived at in breach of the principles of natural justice is a nullity and cannot be allowed to stand.

Regarding procedural illegality of the Commission's decision, *Black's Law Dictionary 8 th Edition*, defines an act or matter to be illegality if it is not authorized by law, contrary to the law. The same 10 definition was adopted by this court in the case of *Walugembe Daniel vs. Attorney General* (supra). As already found above, the Commission acted outside its mandate spelt under the law and hence its decision as contained in the letter referred to is illegal. In the same case, while pronouncing on the powers of the Commission, 15 this court had occasion to hold that;

*"Apart from the above, the decision which amounts to an order ofthe Commission of Inquiry invariably interferes with the independence of the Judiciary. On that account alone, it cannot reasonably be left to stand. It cannot be* 20 *over emphasized that the Commission of Inquiry has no mandate whatsoever to issue orders contrary to court orders or judgments over the same subject matter. The Commission of Inquiry is not a court of law. By ordering*

# 5 *payment to persons other than the one ordered by court, the Commission of Inquiry overstepped its mandate and as such acted illegally."*

Court had not departed from that position and it still takes the same view and accordingly, issue No.2 is answered in the negative.

### *Issue No.3: Whether the Applicants are entitled to the remedies sought.*

The Applicants sought for an order of certiorari to quash the impugned action/decision of the Commission. Like all the other 15 reliefs sought in this application, this too is meant to prevent the wrong and or unlawful decision of the Commission from being acted upon. Similar stance was taken in *Re Retirement of David Behimibsa Bashakara by the District Service Commission, Mbarara District Local Government HCT-05-CV-MA- No. 0048 of*

20 *2001.* Acting outside the preview of the law especially in matters which are already before court of law should not attract sympathy from courts of law. In that regard it is the finding of this court that the Commission of Inquiry to has overstepped its mandate.

5 Therefore, the remedy of certiorari quashing the wrongful decision to prevent the excess of the outright abuse of power by public authorities, doth issue. An order of prohibition doth issue prohibiting the Respondent's agent the Commission of Inquiry from further acting in contravention of the law and *ultra vires* its 10 mandate.

In addition, the Applicants adduced evidence showing how they have suffered inconveniences, embarrassments and mental anguish as a result of the impugned decision ofthe Commission, for which they seek general damages to be paid.

15 In *Kampala District Land Board & George Mitala vs. Venansio Babweyaka Civil Appeal No. 2 of 2007* the position stated is that damages are the direct probable consequences of the acts complained of. Given the proof of the damages suffered as adduced in evidence by the Applicants, court awards general 20 damages to the Applicants jointly in the amount of UGX.50 million. It shall attract interest at court rate per annum from the date of this ruling till payment in full.

The Applicants also prayed for costs of this application. Section 27 of the Civil Procedure Act provides that costs are in the discretion of

5 the court but shall follow the event unless for good reasons court directs otherwise. There is no good reason to deny the Applicants costs of this application which is awarded to them.

#### *BASHAIJA K. ANDREW* 10 *JUDGE 20/03/2020.*