Kanyesigye & Another v Uganda National Students Association & 2 Others (Miscellaneous Cause 274 of 2023) [2024] UGHCCD 78 (11 January 2024)

#### THE REPUBLIC OF UGANDA

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

### [CIVIL DIVISION]

#### **MISC. CAUSE NO. 274 OF 2023**

#### KANYESIGYE PETERSON

ANYANGO LILIAN ============================= APPLICANTS

### VERSUS

- 1. UGANDA NATIONAL STUDENTS ASSOCIATION - 2. NASASIRA BILL CLINTON - 3. CHERUKUT FRED TOSKIN ================== RESPONDENTS

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

### **RULING**

This application is by Notice of Motion under article 24, 28, 42 and 44 of the constitution, section 33, 36(1) (b), (c) and (e) & 38 of the Judicature Act Cap 13, section 98 of the CPA, Rule 3, 5, 6, 7 and 8 of the Judicature (Judicial Review) Rules and Order 52 rule 1, 2 and 3 of the CPR seeking for orders that; -

- a) A declaration that the Applicants are the duly elected and sworn in Speaker and Deputy Speaker respectively of the 1st Respondent, fit and proper to hold the said offices and that they should continue carrying out their duties without the illegal, irregular and ultra vires interruption from the 2nd and 3rd Respondents. - b) A declaration that the 2nd and 3rd Respondents acts of halting, suspension and or interdicting the services of the Applicants without the Authority to do so, following due process and or involvement and the requisite approvals/voting from the National Students Counsel (NSC) were illegal, irregular and ultra vires. - c) A declaration that the 2nd and 3rd Respondents' deliberate acts of continuously faulting, flaunting, ignoring and or refusing to adhere to the UNSA Constitution and the legal frame work are irrational, irregular discriminative and arbitrary.

- d) An order of certiorari quashing the illegal, irregular, irrational and ultra vires instructions of the 2nd and 3rd Respondents suspending the Applicants from their offices and from performing their duties and the illegal, irregular and ultra vires appointment of acting speaker and Deputy Speaker by the 2nd and 3 rd Respondents. - e) An order of prohibition/permanent injunction to issue against the Respondents from illegally, irregularly, irrationally and ultra vires suspending, halting and or interdicting the Applicants without the authority to do so, following due process and or involvement and the requisite approval /voting from the National Students Council (NSC). - f) An order of mandamus be issued against the Respondents, their workmen, employees or anyone claiming under them compelling them to always to adhere to the UNSA Constitution and the legal framework, render true accounts of the 1st Respondent to the Applicants and also provide the necessary financial support for the Applicants to execute their duties as under the UNSA Constitution. - g) General damages and costs of the application be provided for. - h) Any other relief deemed appropriate by this Honourable Court.

The application is supported by the affidavit of **Kanyesige Peterson**, the 1st applicant whose details are on record but briefly states that; -

- 1. I am the duly elected speaker with the 1st Respondent herein by the 33rd UNSA National Students Council together with the 2nd applicant. - 2. The 1st Respondent is the National representative body of students from post primary institutions formed on the 16th day of December 1988 to which the 2 nd and 3rd Respondents are the president and the executive secretary thereto respectively. - 3. On 20th day of October 2023, the 3rd Respondent issued a road map of activities without consultation with our office and deliberately ignoring the functions of my office including but not limited to the call up of the National Students' Council that must seat at least twice in a term and that when we engaged the 2nd and 3rd Respondents on the matter, no positive reason was availed to us for the deliberate waiver of the activities of my office. - 4. On 24th October 2023, I dully notified the 2nd Respondent of our intention to call for a Council meeting on 11th November 2023 and on 25th October 2023 I wrote notifying all students delegates about the objective of the meeting and the need to attend the meeting.

- 5. On 26th October 2023 the 2nd Respondent requested that I should call off the meeting citing none availability of funds but on 28th October 2023 I replied the fears raised by the 2nd Respondent and informed him of available alternative funding to finance the meeting but all was ignored by the 2nd and 3 rd Respondents. - 6. The 2nd Respondent on 3rd November 2023 called an emergency meeting and tasked us to explained why we needed to have the council meeting which we did explain according to the constitution which were all ignored and instead served us with suspension letters and issued a notice calling off the 11th November meeting. - 7. On 13th November 2023 the 3rd Respondent issued out a notice confirming our suspension and the purported election of Miss Kiyuba Jennah as interim speaker and Mr. Ochen Alfred as her deputy. - 8. The decision made by the 2nd and 3rd Respondents for and on behalf of the 1st Respondent is tainted with illegality and irrationality and were all done in bad faith, absurdity, improper motives were demonstrated, the UNSA was frustrated and tainted with a lot of procedural irregularities.

In reply, the Respondents opposed the application and in an affidavit deponed by **Cherukut Fred Toskin** the 3rd Respondent on his behalf and on behalf of the 1st and 2 nd Respondent whose details are on record but briefly states that; -

- 1. The application is incompetent on grounds that;- The application by the 2nd applicant is not supported by an affidavit and the 1 st Applicant was not authorized to depone an affidavit on her behalf. The Applicants did not exhaust the existing remedies available within the 1st Respondent's constitution before filing this application. The application does not disclose a cause of action The applicants term of office ends on 31st December which renders the application a moot and of no practical effect. - 2. The 1st Respondent has a dispute resolution, displinary and arbitration Committee with the power to handle complaints and appeals arising from members of the National Executive Committee but the Applicants did not lodge a complaint with the said committee before filing this application. - 3. The 1st Applicant did not consult me or the 1st Respondent's General Secretary or the 2nd Respondent before issuing the notices he refers to in paragraph 4 and he never served the Respondents with the letters as he alleges in his affidavit.

- 4. In March 2023, the permanent secretary of Ministry of Education and Sports closed the 1st Respondent's offices, suspended the association's operations and also froze its accounts only to re-open them in August 2023. - 5. The 2nd Respondent called for the Association's National Executive Committee (NEC) meeting on 3rd November 2023, which I attended and the 1 st applicant was tasked to disclose the sources of the funds for the Council meeting and how much had been secured but he refused. - 6. The 1st Applicant was informed by the Commissioner for Education, Mr. Onyango Geoffrey, that schools were doing final year exams and that the Ministry of Education & Sports had not been notified to ask teachers to release students for the proposed meetings. - 7. After the guidance of the Commissioner of Education, the applicants walked out of the meeting and returned to the meeting furious, rowdy and unruly. They insulted me, the commissioner and the 2nd Respondent and left the meeting. - 8. Following the Applicant's above conduct, the National Executive Committee members proceeded with the meeting and condemned the Applicant's disrespectful, regrettable and uncivilized conduct and unanimously resolved to suspend the applicants, refer the matter to the Dispute Resolution disciplinary and Arbitration Committee for further management. - 9. The applicants were suspended from their offices to pave way for investigations and they were duly informed of their suspension. - 10. On 15th November 2023, the applicants were summoned for hearing before the Dispute Resolution, Disciplinary and Arbitration Committee but the applicants did not attend the meeting. - 11. On 27th November 2023 I requested the applicants to communicate a convenient date for the hearing but refused to do so. - 12. The applicants were summoned in accordance with the 1st Respondent's Constitution and have since been replaced pending the decision of the Dispute Resolution, Disciplinary and Arbitration Committee.

In rejoinder, the applicants reiterated their averments in chief but added that this is not a representative suit where authority as claimed by the Respondents is needed, that the Applicants addressed their grievance to the Board of Trustees as provided under article 14 of the UNSA constitution but nothing was done.

### **Representation**

Counsel Kakeeto Siraje represented the applicants while counsel Derrick Bazekuketta represented the Respondents.

At hearing, counsel for the Respondent indicated that he had preliminary points of law to raise and this court guided that parties file written submissions on both merit and POS. Court gave the schedules on when to file written submissions which was agreed by both parties.

Counsel for the Respondents raised four preliminary objections to wit; -

- 1. The applicants did not exhaust existing remedies - 2. The application is incompetent for failure to attach the UNSA Constitution and it therefore does not disclose a cause of action - 3. The application is incompetent for mootness - 4. The 2nd Applicant's application is not supported by affidavit evidence.

I find it prudent that before I proceed with the merits of the application, I first handle the preliminary points of law as raised by counsel for the Respondents.

### **Submissions by counsel for the Respondents on preliminary points of law.**

# **Objection 1: The applicants did not exhaust existing remedies.**

Counsel for the Respondents submitted that 1st Respondent has various bodies that ensure that disputes amongst its members are arbitrated and resolved. The Applicants did not exhaust the existing remedies before filing this application and as such, the application is incompetent.

Counsel submitted that it is a settled principle that an application for judicial review is incompetent where there is an alternative remedy. He referred to Rule 7A(1)(b) of the Judicature Judicial Review Rules, 2009 and the case of **Assoc. Prof. Jude Ssempebwa & Anor v Makerere University & Anor HCMA No. 021 of 2021.**

Counsel contended that an aggrieved party must take reasonable steps to exhaust internal remedies. He referred to the case of Assoc. Prof. Jude Ssempebwa & Anor v Makerere University &amp supra

Counsel submitted that in the instant case, the 1st Respondent has a board of Trustees with the responsibility to, among others, act as arbitrators in all matters relating to UNSA. He referred to Article 14 Clause 2.0(a) of the UNSA Constitution.

Similarly, the 1st Respondent has a Dispute Resolution, Disciplinary and Arbitration Committee whose functions include settling disputes arising from members of the National Executive Committee. He referred to Article 5 Clause 4.6(b)(ii) of the UNSA Constitution.

Counsel submitted that the Applicants, as Speaker and Deputy Speaker of the 1st Respondent before their suspension, were members of the National Executive Committee under Article 5 Clause 4.3 (l) & (m) of the UNSA Constitution. The Applicants were summoned for a hearing before the Dispute Resolution, Disciplinary and Arbitration Committee but adamantly refused to appear.

Counsel argued that the Applicants did not exhaust existing remedies either before the Board of Trustees or the Dispute Resolution, Disciplinary and Arbitration Committee.

Counsel submitted that the Applicants allege to have lodged a complaint before the Board of Trustees on 14th November 2023. However, on 15th November 2023, a day after the alleged complaint, the Applicants were summoned to appear before the Dispute Resolution, Disciplinary and Arbitration Committee but refused to appear. Secondly, although the Applicants gave the chairperson of the Board of Trustees an ultimatum ending on 21st November 2023, the Applicants had already instructed lawyers to file this application and on 20th November 2023, the 1st Applicant deponed the affidavit in support of the application. The Applicants should have appeared before the Dispute Resolution, Disciplinary and Arbitration Committee in obedience to the summons and pleaded their case before resorting to filing the instant application.

Counsel for the Applicants was directed to file written submissions and serve the Respondent by 6 th December 2023 however he filed on 8th December 2023 while Counsel for the Respondent was directed to file written submissions on both the main application and preliminary point of law and serve the applicants by 11th December 2023 but he filed on 4th January 2024 and counsel for the applicants was supposed to file a rejoinder on merit and reply to the PO raised by 13th December 2023 but he did not file any submission. Counsel for the Respondent was to file a rejoinder on the PO by 15th December 2023 but the same was not done.

In the view of the above court will go ahead and resolve the points of law raised by counsel for the Respondent.

# **Consideration of court on preliminary objections.**

# **No. 1 The applicants did not exhaust existing remedies**

Rule 5 of the Judicature (Judicial Review) (Amendment) Rules, No. 32 of 2019 introduces Rule 7A into the principal Rules. Rule 7A (1) lays out the factors to consider in handling applications for judicial review it provides as follows;

*"7A. Factors to consider in handling applications for judicial review.*

*(1) The Court shall, in considering an application for judicial review,*

*satisfy itself of the following—*

*(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*

*(c) that the matter involves an administrative public body or official."*

It is a settled principle of law that where there exists an alternative remedy through statutory law, then it is desirable that such statutory remedy should be pursued first. A court's inherent jurisdiction should not be invoked where there is a specific statutory provision which would meet the necessities of the case. This is the only way institutions and their structures will be strengthened and respected. **See: Sewanyana Jimmy v Kampala International University HCMC No. 207/ 2016**

In the case of **Charles Nsubuga vs Eng. Badru Kiggundu & 3 Others, HC MC No. 148 of 2015, court** while citing with approval the decision of the Constitutional and Human Rights Division of the High Court of Kenya in the case of **Bernard Mulage vs Fineserve Africa Limited & 3 Others Petition No. 503 of 2014**, relied on the following passage:

*"There is a chain of authorities from the High Court and the Court of Appeal that where a statute has provided a remedy to a party, this court must exercise restraint and first give an opportunity to the relevant bodies or state organs to deal with the dispute as provided in the relevant statute".*

This principle was well articulated by the Court of Appeal in **Speaker of National Assembly versus Ngenga Karume [2008] 1 KLR 425** where it was held that:

*"In our view there is merit … that where there is clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed".*

The Court of Appeal of Uganda in the case of **Leads Insurance Limited vs Insurance Regulatory Authority & Another, CACA No. 237 of 2015** approved the statement of the law by the Learned Trial Judge thus:

### *"The remedy by way of judicial review is not available where an alternative remedy exists".*

In the instant case, the Respondents Constitution provides for alternative remedies which the applicants were even summoned for but they refused to attend the disciplinary hearing and instead filed this application challenging due process.

Article 5 (4.6) of the 1st Respondent's Constitution provides for dispute Resolution, Disciplinary and arbitration committee and sub article (b) provides for its duties as to settle disputes arising from members of staff, to handle complaints and appeals arising from members of staff or NEC or DEC and to handle matters of discipline amongst staff.

Article 14 of the 1st Respondents Constitution establishes the board of trustees and sub article 2 states their roles among which include to act as arbitrators in all matters relating to UNSA.

The applicants were suspended on 3rd November 2023 and issued with a notice confirming their suspension on 13th November 2023. They were invited for a disciplinary hearing on 15th November 2023 however the applicants refused to attend the disciplinary hearing. Further, on 27th November 2023 they were asked to suggest convenient dates for their disciplinary hearing but they still refused and instead rushed and filed this application on 28th November 2023.

The Applicants refused to go for the disciplinary hearing where they were expected to be accorded fair treatment and hence they cannot blame the Respondents since they denied themselves the opportunity.

The applicants frustrated the whole process by refusing to attend the disciplinary hearing and rushing to file this application without exhausting the available remedies in their body. I accordingly find this application incompetent before court.

This objection alone resolves the entire application and considering the rest of the objections will be superfluous and a moot.

### **Conclusion.**

Preliminary objection No. 1 is upheld,

The application is hereby dismissed

Considering the nature of this application for Judicial Review and in the spirit of reconciliation, no order as to costs.

Dated, signed, sealed and delivered by email on this **11th** day of **January 2024**

Emmanuel Baguma Judge