Kalibala & Others v The Permanent Secretary/ Secretary to the Treasury, Ministry of Finance, Planning & Economic Development (Miscellaneous Application 114 of 2023) [2024] UGHCCD 71 (12 March 2024)

### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT KAMPALA

### [CIVIL DIVISION]

### **MISC. APPLICATION NO. 114 OF 2023**

[Arising from Misc. Appln No. 70 Of 2016 And Civil Suit No. 123 of 2009]

1. KALIBALA VICENT

2. SENTONGO KIZIRI & OTHERS ==== APPLICANTS/PLAINTIFFS

#### **VERSUS**

THE PERMANENT SECRETARY/

SECRETARY TO THE TREASURE,

MINISTRY OF FINANCE,

PLANNING AND ECONOMIC DEVELOPMENT====== RESPONDENT

### **BEFORE; HON. JUSTICE EMMANUEL BAGUMA**

#### **RULING**

This application is by notice of motion under Article 254 of the Constitution, section 33 and 36 of the Judicature Act, section 98 of the CPA, orders 52 of the CPR and rule 3 and 6 of the Judicial review rules seeking for orders that; -

- a) A consequential order issues directing the Respondent to immediately pay to the Applicants herein a total sum of 6,371,080,493/= (six billion, three hundred and seventy-one million, eighty thousand, four hundred and ninetythree shillings) as the calculated and ascertained periodic and/or monthly pension arrears due to the Applicants for the period between 1st July 2019 to 31st January, 2023. - b) An order for payment of interest on the periodic arrears in (a) above at the rate of 12% p.a for the period 1st July 2019 to date to the tune of 2,293,588,977/= (Two billion, two hundred and ninety three million, five hundred and eighty thousand, nine hundred and seventy shillings only) and 12% p.a from the date of ruling of Court herein till payment in full.

- c) An order of mandamus be issued to compel the Respondent to pay to the Applicants the outstanding calculated and ascertained monthly pension arrears and costs. - d) An order of mandamus be issued to compel the Respondent to immediately within three months of the ruling of this Court reinstate the Applicants on the pension pay roll and be paid periodic pension as ordered by the Court Vide H. C. CS No. 123 of 2009. - e) That payment herein be made or be effected in accordance with the orders of court in H. C. M. A 70 of 2016, Kalibala Vicent & Others Vs Attorney General - f) That the certificate of complexity and certificate of two counsel be issued by this court. - g) That costs of this Application be provided for.

The application is supported by the affidavit of **Kalibala Vincent** whose details are on record but briefly states that; -

- 1. I and other Applicants were former employees of Uganda Electricity Board who served at various levels and periods until retirement and became pensioners of the board before privatization of the same, - 2. The Respondents illegally terminated our pension scheme and/or pension entitlement and consequently under paid us on the same which prompted us to file a suit vide H. C. C. S No. 123 of 2009, Kalibala Vincent & others Vs Attorney General and judgment was accordingly entered in our favour on 8th May 2015. - 3. Court decreed that the Applicants/Plaintiffs be paid their calculated and ascertained pension arrears, be reinstated on the pension pay roll and be paid periodic pension but to date the same has not been done. - 4. The government delayed to compute, ascertain and pay pension arrears as ordered by court then through our lawyers M/S Bashasha & Co. Advocates, I and other Applicants engaged consultants Allied Certified Public Accountants who computed and we filed H. C. M. A No. 70 of 2016 whereof Court accordingly approved the computed figures and ordered payment of the outstanding pension arrears at the time. - 5. The Respondent refused to pay and MC 965 OF 2017 and MC 796 of 2017 were file in all which court ordered the Respondent to pay.

6. Since 30th June 2019 to date, the Respondent has not paid any periodic/monthly pension or reinstated me and other claimants on the pension payroll in total disregard of the orders of Court.

In reply, the respondent in an affidavit sworn by **Ramathan Ggoobi** whose details are on record briefly stated that; -

- 1. The pension arrears due to the Applicants by the Ministry of Energy and Mineral Development was allocated totaling to UGX. 6,150,770,617/= IN FY 2023/2024 to cater for pension arrears for the former employees of UEB and further UGX. 1,372,939,870/= was incorporated in the Ministry of Energy and Mineral Development's budget to cater for the monthly pension of the former employees of UEB. - 2. I know that government released the amount claimed in quarter 1 and 2 of this Financial Year.

In rejoinder, the applicant reiterated his averments in chief but added that the number of 562 pensioners were verified by High Court in H. C. C. S No. 123 of 2009 and it is wrong for Ministry to state that only 125 pensioners were verified since the Ministry does not have powers to decide who qualifies and who doesn't. that the Ministry also refused to verify people with letters of administration stating it was the work of a lawyer. He contended that Ministry of Energy and Mineral Development is simply looking for excuses not to pay pensioners as the list of all the 562 pensioners has on several occasions been submitted by the Applicants lawyers to no avail.

## **Representation.**

Counsel Mpumwire Abraham Dalton represented the Applicant while Counsel Musota Brian a state attorney from the Attorney General's chambers represented the Respondent.

At hearing, both counsel agreed to file written submissions.

Counsel for the applicant raised two issues for court determination; -

- *1. Whether this a proper case for grant of consequential orders?* - *2. Whether the Applicants are entitled to the remedies sought?*

## **Submissions by Counsel for the Applicant.**

# **Issue No. 1; Whether this a proper case for grant of consequential orders?**

Counsel submitted that the applicants obtained Judgment from this court on the 8th May 2015, wherein court decreed that they are entitled to payment of their calculated and ascertained pension and that they be reinstated on the pension pay roll and be paid periodic monthly pension. Court ordered the auditor general to calculate and compute the applicants pension which was never done and the said monies have never been paid to date.

Counsel referred to the case of **Kalibala Vincent & others Vs Attorney General H. C. M. A No. 70 of 2016** where court held that; -

## *"consequential orders denote an order of Court giving to the Judgment or decision to which it is Consequential or resultant there from."*

Counsel submitted that in the instant case, court issued Judgment and decree vide **HCCS No. 123 of 2009, Kalibala & Ors Vs Attorney General** that the applicants be reinstated on the pension pay roll and be paid periodic monthly pension. This has not been done for nine years now which amounts to not only contempt of court orders by the Respondent and his agents but also making it impossible to effect or realize the judgment of court causing gross injustice on the applicants.

He submitted that the Respondent in their affidavits in reply admitted that the money to pay the applicants is there and was released to Ministry of Energy but have to date refused or neglected to effect payments to the applicants which shows that the applicants cannot recover their money except through a consequential order.

## **Issues No. 2 Whether the Applicants are entitled to the remedies sought?**

Counsel prayed for a consequential order, interest at 12 % per annum for the period from 1st July 2019 to 31st January 2023 to a tune of 2,293,588,977.

Counsel prayed for an order of Mandamus as provided for under section 36 of the Judicature Act. He prayed for payment through the Applicant's lawyer and a certificate of complexity and two counsel.

## **Submissions by counsel for the Respondent.**

## **Issue No. 1; Whether this a proper case for grant of consequential orders?**

Counsel submitted that it is not in dispute that there could be some outstanding sum of arrears of unpaid monthly pension for the period of 1st July 2019 to 31st January 2023, however the sums as budgeted for and sent to the Ministry of Energy and Mineral Development are UGX. 6,150,770,617/= to cater for the arrears and monthly pension. The claim by the applicants for the outstanding sum of UGX. 6,371,080,493/= as the calculated and ascertained periodic and or monthly pension arrears due to the Applicants for the period between 1st July 2019 to 31st January 2023 is therefore without basis.

That the judgment of court clearly made it in its orders as a condition that the plaintiffs would only be paid outstanding pension arrears as computed and ascertained by government which in this case is represented by Ministry of energy. Pension is only payable to people who are alive.

Counsel submitted that only applicants who are alive are entitled to paid the outstanding pension arrears as calculated and ascertained by the Ministry of Energy as periodic or monthly pension arrears due to the Applicants for the period between 1 st July 2019 to 31st January 2023 including interest as ordered by the trial Judge.

## **Issues No. 2 Whether the Applicants are entitled to the remedies sought?**

Counsel referred to the case of **Christopher Sales and another Vs Secretary to the Treasury and Attorney** where court held that; -

Sections 36(1) (a) and 37 of the Judicature Act empower the High Court to issue a writ of mandamus.

Under S.19 of the Government Proceedings Act, Government has a duty to satisfy the judgment/decree by court and to pay the amounts stipulated in the Certificate of Order against Government. Before granting the writ of Mandamus against Government, courts must ensure that the Applicant has demonstrated that he/she enjoyed a right as specified in a judgement/decree of court, a Certificate of Order against Government detailing the amounts payable has been extracted and served against the Government and that Government has refused and or failed to pay.

There must be no dispute as to the amount in the judgment/decree and that there must be no alternative remedy available to the Applicant. See the cases of **Intex Constructions Ltd –v- Attorney General & Anor MC No. 737 of 2013 and Oil Seeds (u) Ltd –v- Chris Kassami (Secretary to the Treasury), MA No. 136 of 2008.**

Counsel also referred to the case of **Patrick Kasumba –v- AG & Treasury Officer of Accounts MA No. 121/2010** where it was held that:-

*"Before the remedy of mandamus is given the applicant must show a clear legal right to have the thing sought by it done. Mandamus is a discretionary order like all other prerogative orders, which the court will grant only in suitable circumstances and withhold in others. It cannot be granted as a matter of course. A demand for performance must precede an application for mandamus and the demand rules must have been unequivocally refused"*

Counsel submitted that the order of mandamus prayed for by the applicants have no basis on which they can be made. The Responsible Ministry of Energy and Mineral Development is in the process of verification of the claimants and the same is still ongoing and payments have been made to some of the claimants. The applicants have failed to provided a list of claimants and their National Identity numbers to enable ministry smoothly process payment. This failure to provide the information has however, not stopped the Ministry of Energy and Mineral Development to perform her duty as they have on behalf of Government already advertised and verified some of the claimants for payment of both the pension arrears and the monthly pension as ordered by the court. These circumstances do not warrant the award of an order of mandamus.

Counsel submitted that a certificate of two counsel is provided for under regulation **41 of the Advocates (Remuneration Taxation of costs) Regulations** which states that; -

*"The costs of more than one advocate may be allowed on the basis hereafter provided in causes or matters in which the judge at the trial or on delivery of judgment shall have certified under his or her hand that more than one advocate was reasonable and proper, having regard, in the case of a plaintiff, to the amount recovered or paid in settlement or the relief awarded or the nature, importance or difficulty of the case and, in the case of a defendant, having regard to the amount sued for or the relief claimed or the nature, importance or difficulty of the case.*

# *(2) A certificate for two counsel may be granted under this regulation in respect of two members or employees of the same firm".*

Counsel submitted that the certificate of two counsel is only issued by the judge where more than one advocate was necessary and has been engaged to handle the matter. In the instant case there is only one advocate on court record as that is Cumberland Advocates with one counsel hence a certificate of complexity and two counsel cannot be issued.

Counsel submitted that according to **section 27 of the Civil Procedure Act** costs follow the event but in the instant case, there is no chance that the application can succeed.

## **Determination of court.**

**Issue No. 1; Whether this a proper case for grant of consequential orders?**

In the case of the **Registered Trustees of Apostolic Church v Okorolemi (1990) 6 NWLR (pt 158) 15 cited in the case of Pentecostal Assemblies of God Ltd Vs Joel Mukalu & ors HCMA No. 290 of 2022** it was held that; -

*"Consequential order denotes an order following naturally in terms of consistency and giving effect to the main judgment. Therefore, it is an order following from the judgment. It is essentially one which makes the principal order effective and effectual or which necessarily as being incidental to the principal order in the matter".*

Further in the case of **Patrick Kasumba –v- AG & Treasury Officer of Accounts MA No. 121/2010** court held that: -

*"Before the remedy of mandamus is given the applicant must show a clear legal right to have the thing sought by it done. Mandamus is a discretionary order like all other prerogative orders, which the court will grant only in suitable circumstances and withhold in others. It cannot be granted as a matter of course. A demand for performance must precede an application for mandamus and the demand rules must have been unequivocally refused."*

In this case the Applicants want an order to give effect to the orders in Civil Suit No. 123 of 2009 vide Vincent Kalibala Vs Attorney General and MA No. 70 of 2016. From the evidence adduced by both parties, it is not in dispute that there is

outstanding sum of arrears of unpaid monthly pension for the period 1st July 2019 to 31 st January 2023 as seen in paragraph 4 and 5 of the affidavit in reply by Ramathan Goobi The permanent secretary/Secretary to treasure who stated that the money was allocated to cater for the pension arrears for the former employees of UEB.

There is evidence to show that the applicants filed MA No. 70 of 2016 whereof court approved the computed figures and ordered payment for the outstanding pension arrears at the time.

The applicant have made several demands for their payment against the Respondent but the same has not yielded positive response.

In the view of the above, I allow the application and issue a writ of mandamus in favour of the applicants and specifically against the Permanent Secretary, Ministry of Finance & Economic Development/Secretary to the Treasury, directing him to pay the applicants the approved and computed figures, interest and costs due to the applicants vide **HCMA No. 70 of 2016 and Civil Suit No. 123 of 2009 Kalibala Vincent & other Versus Attorney General**.

The applicants prayed for a certificate of complexity and two counsel, however, the applicants have not proven that the trial judge allowed two lawyers to handle this matter. In any case, the applicants ought to have raised this issue before the trial Judge who tried the matter and knew its weight legally to warrant grant of certificate of two counsel. raising such an issue at this stage is untenable in my view.

# **Conclusion**.

This application succeeds with the following orders; -

1. A consequential order is hereby issued directing the Respondent to immediately pay to the Applicants herein a total sum of UGX. 6,150,770,617 (six billion, one hundred and fifty million, seven hundred and seventy thousand six hundred and seventeen shillings only) as the calculated and ascertained periodic and/or monthly pension arrears and interest due to the Applicants for the period between 1st July 2019 to 31st January, 2023 following the judgment of court in **HCMA No. 70 of 2016 and Civil Suit No. 123 of 2009 Kalibala Vincent & other Versus Attorney General**.

- 2. An order of mandamus is hereby issued against the Respondent directing it to comply with the court order and certificate of against it in **HCMA No. 70 of 2016 and Civil Suit No. 123 of 2009 Kalibala Vincent & other Versus Attorney General**. - 3. Costs of this application to be paid to the applicant.

Dated, signed, sealed and delivered by email on this **12th** day of **March 2024**

Emmanuel Baguma

Judge.