Kiffundu v The Attorney General (Civil Appeal 27 of 1993) [1993] UGSC 39 (11 August 1993)

Full Case Text

### THE REPUBLIC OF UGANDA

#### IN THE SUPREME COURT OF UGANDA

### AT MENGO

CORAM: MANYINDO, D. C. J., ODER, J. S. C. & PLATT, J. S. C.

# CIVIL APPEAL NO. 27 OF 1993

BETWEEN.

WYCLIFFE KIFFUNDU ..... ........ APPELLANT

AND

THE ATTORNEY GENERAL....... ••••••••• RESPONDENT

> (Appeal from a ruling of the High Court. of Uganda at Kampala (Mr. Justice M. K. Kalanda) dated 3/2/92)

### IN.

### HIGH: COURT CIVIL SESS. CASE NO. 643/89

## REASONS FOR ORDERS

The Attorney General of Uganda was sued by Wycliffe Kigundu Kato, the general effect of the suit being, that the Plaintiff Mr. Kata had been wrongly interdicted, and later had been : wrongly retired from the Public Service in the public interest. At the beginning of the trial, the Attorney General applied for the plaint to be rejected. The learned Judge agreed with this preliminary objection, and rejected the plaint under Order 7 Rule 11(a) of the Civil Procedure Rules, because the plaint did not disclose a cause of action. The Plaintiff, being aggrieved by this decision, appealed to this Court.

Mr. Ssempebwa for the Plaintiff/Appellant set out 7 grounds of appeal but submitted that the burden of the whole appeal could be summarized in grounds 6 and 7 of the memorandum which are as follows:-

$6.$ That the learned trial judge erred in law and fact in holding that the plaint was not maintainable as it did not disclose a cause of action and that such plaint

$.../2...$

cannot, be cured by amendment.

The learned trial judge erred when in effect he decided the merits of the Appellant's case on a pre!iminary, objection that the plaint disclosed no cause of action." Mr. Nyakairu Senior State Counsel for the Respondent/ Defendant drew attention to ground 1, and as some part, of the argument related to the terms of that, ground of appeal, it is necessary to. set it. out as follows 7/.

That, the learned trial judge erred in law and fact in holding that a public servant who is interdicated and against whom no criminal charges are brought may be kept under interdication indefinitely". '' 1.

the Constitution with unfettered discretion, and therefore no claim for damages and compensation for loss of salary and other benefits can. be maintainedc of the regulations in. advising the President to retire the Appellant in the public interest. The Judge was also wrong, in holding that the President.'s powers under Article 104. (1) of enables the President to exercise his powers It seems to me that ground, 1—5 were all aspects of the general argument under grounds 6 and 7 and perhaps I should refer to them briefly. It is said that the learned Judge was wrong in holding that, all the relevant regulations were followed whilst disciplinary action was being taken against, the Apppl lAhtf and that, in fact the Public Service Commission acted in breach.

Mr, Ssempebwa pointed out the nature of the appeal in relation to the prayers in the plaint. We agree that in the case of a preliminary objection of this nature, it is important to observe the nature of the plaint, because as Order 7 Rule 11 (a) of the Rules provides, the plaint shall be rejected where it does not

disclose a cause of action. We consider therefore, that it is primarily a matter of construing the plaint, there being no other pleadings, and as the authorities show, the plaint must be construed without access to evidence on affidavit. (Attorney General of Duchy of Lancaster vs L &N. W Rly (1892) 3 CH 273; Wenlock vs Moloney (1965) 2 All E. R. 871; Libyan Arab Bank of Uganda vs Intrep Co. Ltd: H. C. C. S. 1007 of 1985 unreported per Odoki $J_{\bullet}$ )

We are not here concerned with the part that further and better particulars may be allowed to play because there were none in this case. Assuming then that the averments in the plaint have been proved, it must be asked whether by themselves they disclose a cause of action.

As the pleadings show, the plaint was amended by Court. order on 16th January, 1991.

In paragraph 1 of the amended plaint the Plaintiff describes himself as the Ag. Director of Civil Aviation in Uganda up to the 18th August, 1986. Paragraph 3 of the amended plaint than continues to allege that on the 18th August, 1988, the Permanent Secretary of the Ministry of Transport and Communications, a Government servent acting within the scope of his employment, wrote to the Plaintiff interdicting him from duty on the grounds set out in the letter which was attached to the plaint as annexure $H_{A}$ .

The letter of 18th August, 1988 set out three cases of financial impropriety and then stated:-

> Police investigation may lead to your prosecution in court for the above offences. In view of this, I am interdicting you from the exercise of your functions, responsibilities and duties as Deputy Director General until your matters are finalised by court or unless/until I am advised otherwise by Police".

> > $\frac{1}{2}$

$\mathbf{3}$

The amended plaint continues in paragraph 3 to allege that the Police investigated the allegations and found them unfounded, and consequently did not charge the Appellant with any criminal offence. Nevertheless, the interdiction was allegedly maintained for more than two years. The Permanent Secretary wrote to the Appellant on 30th April, 1990. annexure B, which letter indicates that proceedings to retire the Appellant in the public interest were on foot. The last three paragraphs are especially important and are as follows:

" It is on the above grounds that this Ministry found it difficult to present your case to the Public Service Commission for confirmation into your acting appointment of Director General for a number of years.

It has, therefore, been decided that a case be made against you to the Public Service Commission that you be retired in Public interest with an option that you be allowed to voluntarily retire prematurely from the services of the Government of the Republic of Uganda.

The purpose of writing is to call upon you either to retire voluntarily **apon you crosser to receive voluntarity** **.....** or to show cause upon which you exculpate yourself from the impending action of retirement in public interest. **.....** In the latter alternative **your presentation should r** a week of this letter and in any case not later that Monday 8th May, 1990".

The Appellant contends in paragraph 3(c) that this letter puts forward allegations of a vague and general nature, which left the Appellant to guess for himself what the case against him might have been.

(In faireness to the Permanent Secretary, the first three paragraphs of his letter of 30th April, 1990 did set out a number of complaints, and then gave a summary that the Appellant could not make a Director General because of the

$...5$

Appellant's gross incompetence and causing divisions amongst the staff). Nevertheless, the Appellant contended that these allegations were unsatisfactory. The Appellant avers in paragraph 3(d) that his interdiction was ultra vires. the Public Service Commission Regulations, which he contende, provide that an interdicated public officer, against whom no oriminal or disciplinary proceedings are brought, should be reinstated. The Appollant alleges in paragraph 3(e) that he appealed in vain for the Public Service Commission Regulations to be complied with. Moreover, the Appellant contends in paragraph $3(f)$ that he was entitled to be informed of any charges against him and be given a hearing by the Commission. As a result, the Appellant alleges in paragraph 4 that he was unlowfully interdicated and unlowfully retired in the public interest, thereby causing him loss. The Appellant/Plaintiff prayed for the following reliefs:-

> ла ). A declaration that:-

- $\overline{1}$ the Plaintiff's interdiction and being improperly kept on interdic- tion for more than two (2) years was unlawful and ultra vires the Public Service Commission Regulations: - the retirement in the Public interest of the Plaintiff by the President of Uganda was unlawful in so far as it was based on advice of the Public لأخد Service Commission which did not follow the prescribed procedure. - General damages. b)

c) (d) Costs and interest.

It will be seen that the two main issues arising from the amended plaint would primarily include the issues arising from the nature and length of the Appellant's interdiction; and secondly the legality or otherwise of the retirement proceedings.

...../6...

$\mathsf{S}$

The learned Judge approached the first issue in the following He began by expressing the opinion that the length of $wav.$ time of the interdiction was not based on any existing regulations.

> "There is nowhere in the Public Service " regulations - it is indicated what period a civil servant has to be on interdiction" (sic)

The learned Judge then quoted regulation 36 (1)

Where a responsible officer considers that the public interest requires that a public officer should cease to exercise the powers and functions of his office, he may interdict the officer from the ne may interdice the Officer from the exercise of those powers and functions, if proceedings for his dismissal are about to be taken or if criminal proceedings are being instituted against him" (underlinings by the Court.)

The learned Judge then dealt with the contention that the continued interdiction of the plaintiff was ultra viros the regulations which indeed provide that in interdicated public officer against whom no criminal or disciplinary proceedings are brought, should be reinstated. He accepted, so it seems, that. "the proceedings through inquiries had been commenced" against the Appellant. Those proceedings were culminated by the letter of April, 1990. The Appellant had been asked to make representations but did not.

With great respect, it is difficult to follow the logic of those findings. We may commence with the learned Judge's finding above which seems to suggest that regulation 36 allows interdiction to be continued indefinitely. Both Counsel before this Court agreed that interdiction could only last for a reasonable time. If that were true, then the application to reject the plaint, so far as this part of the case is concerned, must fail. What a reasonable time might be would depend upon the true construction of regulation 36.

$\sigma$ . $\sigma$ . $\pi$ . $\sigma$ . $\sigma$ . $\sigma$ .

$\mathbf{6}$

and whether or not the facts alleged would fit, within thatconstruction. Once questions of fact arise, then the issue must surely go to. trial.

On the other hand, it would not be open to the Respondent to rely upon the Judge's, possible assumption, that interdiction might last indefinitely. Regulation 36 requires two pro-requisites;—

- a) if proceedings for his dismissal are about to be taken, or - b) if criminal proceedings era being instituted, against him.

ended. It. is clear that Coagulation 36 is not intended to bo open-

proceedings mentioned may be allowed perhaps; but tho gap must inevitably be short. Interdiction may be ordered if proceedings are about to be taken, in a), or are being, instituted in b), Some latitude between, the act oflintofdictian and thoinstitution of the

of mixed law and fact. Whether the two years alleged in the amended plaint would fit within the construction of regulation 3-6 must be a question

However that, may be, same as retirement in the public interest. there can be no doubt that dismissal proceddings are not tho Regulation 36 does not cover retirement in the public interest. There is the suggestion that "proceddings through inquiries had commenced." In this case dismissal proceedings were not contemplated in the letter of lSth August 19^8, We.are not sure what, the learned Judge meant by " disciplinary" proceedings. Apparently, the learned Judge thought that the phrase, "criminal proceedings for dismissal, or prosecution, and not a vague period for investigation.

It, seems that, the learned Judge may have accepted that construction, if helheld that, the police proceedings culminated in the letter of 30th April, 1990. If that is so, what happened after 30th April, 1990? On this aspect of the case then, two questions are left open: was interdiction commenced on a legal basis, and secondly how long did it last?

If interdiction On.the last question of fact, if interdiction continued after 30th April 1990, did that not give ground for a declaration from that time onwards and possibly a case for damages? On this point, the amended plaint is not quite clear. What did the Appellant mean by more than two years? started on 18th April, 1988; two years would elapse on 13th. April, 1990. But the argument appears to run on until 30th. April, 1990? On this aspect of the case then, two questions are left open; was interdiction commenced on a legal basis, and secondly how long did it last?

On the last question of fact, if interdiction continued after 30th April, 1990, did that not give ground for a declaration from that, time onwards and possibly a case for damages? On this point- the amended plaint is not quite clear\* What did the Appellant mean by more than two years? If interdiction started on 18th April, 1988; two years would esapse on 13th April, 1990. But the argument appears to run on until 30th April, 1990, at least more than. 2 years?

We notice that an application to amend the plaint was made by summons, supported by affidavit, dated the 20th November, 1990.

The purpose was to introduce certain facts, one being that the-Appellant was retired in the public interest from 18th August, 1990 by the President of Uganda under Article 10A of the Constitution, and on the advice of the Public Service Commission\*

•»../9\*..»

The amendment was allowed by Soluade. J on 16th. January, 1991. The curious fact, however&gt; is that these facts were not imported into the amended plaint\* Presumably more than two. years was intended to run up to 18th. Augustj 1990\* We have to take the amended plaint as it stnds. The 18th. August, 1990 has not been incorporated. We have to take it that the amended plaint, covers the period 13th April, 1988 to. 30th April, 1990J unless it is to be further amended. It is not permissible to, rely upon the affidavit or arguments presented during, the application for amondement, first, because the amendments were not carried out, and secondly because in principle, we cannot look at affidavit evidence, outside the amended plaint, as we have explained above.

'More than two years" may need possibly damages\* In this ease, having In mind tho prima facie "more than two commensurate with criminal Even so, there are sufficient facts upon which the plaint must show a cause of action\* In Auto Garage ysMotokou (No 3 ) (1971). EA 514, it. was held that a plaint, may disclose a cause of action.without containing all the facts constituting the cause of action, provided that the violation by the defendant of a right of the plaintiff is shown\* pro—requisites of regulation 3&» years" interdiction would not be proceedings being instituted\* elucidation beyond 30th April, 1990, arid may possibly be the subject of further amendment, or curtailment as tho case may bo\* But as the amended plaint stands, there is a case for the Respondent to answer the relief claimed of declaration and

require attention. Rissing on then to the next issue relating to the legality or otherwise of the proceedings, there are two aspects which

The first concerns the learned Judge's decision couched

**.... Ao....**

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### in the following phrases:-

"These proceedings culminated in the Permanent Secretary..... writing to the Plaintiff on 30th April 1990 informaing him of the nature of charges against him asked the plaintiff to either retire on his own or make presentation within a week giving an explanation on the accusations. The plaintiff did not make the presentation or any response to that letter. response to that letter. Considering all the above, I do not see how the plaintiff would have been reinstated when disci- plinary proceedings were initiated, and he was informed about them and asked to make a presenta- tio by his own choice. He cannot turn round and say that he was not heard".

This passage depends to a large extent on the fact that the Appellant did not respond and present his case. That fact is not in the pleadings. Its origin, according to the $e^{-}$ argument presented to this Court, lies in other proceedings. Unless it was admitted, the learned Judge could not rely upon it. Nothing was stated by Counsel before the Trial Court on this point. Consequently the learned Judge must be held to have relied upon an extraneous fact.

The second aspect concerns the powers of the Presidency under Article 104 of the Constitution. A good deal of argument in the trial Court concerned the effect of the docision in Opolot vs Attorney General (1969) E. A 631. It does not appear to us that decision is relevant to the precise issues on this appeal. Whether or not the Appellant can be retired in the public interest at the will of the President, he is asking for declarations of another kind. He alleges that prior to the decision to retire him he was unlawfully interdicated and then unlawful advice was given to the President.

$\frac{1}{1}$ ..../11...

$\mathcal{M}_{\mathcal{A}}$

He considers that, these unlawful features allow him to claim, a declaration and damages\* Several considerations arise from this situation^

The amendments have never been carried out. It. is therefore not- an apt case for a general constitutional discussion. First, of afl it is not pleaded and when the decision to retire the Appellant was taken. As we. have, seen above, facts ef. this nature were to be added to the plaint when; it was amended.

Whether or If the preliminary matter of law. Secondly, no constitutional question was raised by the defence and therefore no. reply was filed. State insists that as a matter of law no suit- can be brought, the State should not try to have the plaint rejected, under Order 7 Rule 11, but should apply to have the suit dismissed on a hearing, on a matter of law, 14 Rule 2 would have been, relevant. is to be found in Order HII Rule 2 of the Rules). The defence merely says that whatever was done was lawfully done. What is the position, then, if the Appellant accepts, his retirement w af&tt, but, alleges that the steps taken to cause his retirment were unlawful? Prima facie a subjpet has the right to expect, procedures to. be lawfully carried out, and the- remedy of a declaration, at least, is apt to vindicate the subject's rights. not that is a pyrrhic victory in the end is not in point in this appeal. A distinction must be drawn between an. application to reject a plaint, and one when a matter of law is set down for argument as a preliminary, point. That distinction was very clearly explained in Nurdin All Dewji & Othera va Meghj.1 & Qthuyfl (1953 ); 20 E,A,C,A 132, The distinction isthat under Order 7 Rule 11(a) of the Rules, an; inherent defect in the plaint must be shown, rather than that the suit was not maintainable in law. In the latter case a preliminary point should be set down for (Ini Tanganyika at that time Order In Uganda the relevant rule

/12

Essex Area Health. Authority But Thirdly we should deal with Katikiro of. Buganda v.sA. G, of Uganda (1958) E,A. 765 to which we were referred. It was held thoreo that Order 7 Rule 11 of the Rules, ought not to be applied to an. action involving a serious investigation of law and questions of general importance. Subject to the decision in Nurdin Ali Dewji. (above) and the need for the avoidance of loss of time and costs (See Mckay v.s (1982). 2 All E. R, 771 )> we would as a general rule agpee,

in this case facts as well as the law must be investigated and a , traial is necessary. In that event, we hope that Legal Notice No, 2 of 1988 will be considered, if that is opposite.

But. on appeal, the Court the Judge has gone wrong that the Judge is wrong. (See Auto. Garage^ ys\_ Mgtojcou (No. 3) (1971)! EA 514)» and amendment can be ordered, of. Appeal may not only interfere where in principle, but also if it satisfied in giving, no weight or insufficient rreight to. thofre considerati**ont** which ought to have weighed with him, or that he had been, influenced by considerations which ought not to have weighed with, him (per Lord Denning in: James ys Ward (1966) 1 QB 273 at p 293)• It follows that as the learned Judgp unfortunately miscontrued regulation 36, and took into account extraneous considerations, it is clear that the appeal, most succeed\* This is an appeal, against-an interlocutory ruling, which involves the trial Judge's discretion to some extent. Order 7 Bule 11 is not read aa mandatory, as the Respondent submitted in the Court below.

At the hearing of the appeal,, we allowed the appeal, set aside the judgment of the High Court, thus reinstating the suit. We ordered that the record be remitted to the High Court for trial by another Judge, We awarded the costs of the appeal and of the application, to reject the plaint, to the Appellant/ Plaintiffs These are the reasons!fortthose orders.

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S. T. MANYINDO

# DEPUTY CHIEF JUSTICE

A. H. O. ODER

JUSTICE. OF THE SUPREME COURT

H. G.. PLATT JUSTICE OF THE SUPREME COURT

1 CERTIFY THAT THIS. IS A TRUE. COPY OF THE ORIGINAL

T-4 QPESEJV'^

*Q*

>. G, .. SSlfe. NT, REGISTRAR

## \* IN THE SUPREME COURT OF UGANDA

#### AT M3NG0

CORAM: MANYINDO, D. C. J., ODER, J. S. C. & PLATT, J. S. C.

## CIVIL APPEAL NO, 27 OF 1993

## BETWEEN

WYCLIFFE KIGGUNDU APPELLANT

#### AND

THE ATTORNEY GENERAL RESPONDENT

(Appeal from a ruling of the High Court of Uganda at Kampala (Mr. Justice M. K. Kalanda) dated 3/2/92)

#### IN

### HIGH COURT CIVIL SESS. CASE NO, 64j/89

#### REASONS FOR ORDERS

The Attorney General of Uganda was sued by Wycliffe Kiggundu Kato, the general effect of the suit being, that the plaintiff Mr. Kato had been wrongly interdicted, and later had been wrongly retired from the Public Service in the public interest. At the beginning of the trial, the Attorney General applied for the plaint to be rejected. The learned Judge agreed with this preliminary objection, and rejected the plaint under Order 7 Rule 11(a) of the Civil procedure Rules, because the plaint did not disclose The Plaintiff, being aggrieved by this decision, appealed to tnis Court. a cause of action.

Mr. Ssempebwa for the plaintiff/Appellant set out 7 grounds of appeal but submitted that the burden of tne whole appeal could be summarized in grounds 6 and 7 *of* the memorandum which are as follows

6. That the learned trial judge erred in law and fact in holding that the plaint was not maintainable as it did not disclose a cause of action and that such plaint cannot be cured by amendment.

2/,...

**7.** The learned trial judge erred when in effect he decided the merits of the Appellant's case on the plaint disclosed no cause of action. a preliminary objection that *if*

Mr. Nyakairu Senior State Counsel for the Respondent/Defendant drew attention to ground 1, and as some part of the argument related to the • terms of that ground of appeal, it is necessary to set it out as follows;—

*H* **1.** That the learned trial judge erred in law and fact in holding that a public servant .who is interdicted and against whom no criminal charges are brought may be kept under interdiction indefinitely. *t!*

- *5* were all aspects of the general argument under grounds 6 and 7 and perhaps I should refer to them briefly. It is said that the learned Judge was wrong in holding that all the relevant regulations were followed whilst disciplinary action was being taken against the Appellant; and that in fact the public Service Commission acted in breach of the regulations in advising the president to retire the Appellant in the public interest. . The Judge was also wrong in holding that the president's powers under Article 104 (1) of the constitution, enables the president to exercise his powers with unfettered discretion, and tnerefore no claim for damages and compensation for loss of salary and other benefits It seems to me that ground^1 can be .maintained.

Mr. Ssempebwa pointed out the nature of the appeal in relation to the prayers in the plaint. We agree that in the case of a preliminary objection of this nature, it is important to observe the nature of the plaint, because as Order 7 Rule 11 (a) of the primarily a matter of construing the plaint, there being no other pleadingo, and as the authorities snow, the plaint must be construed without access to evidence on affidavit. (Attorney General of Duchy of Lancaster vs L & N. W. Rly (1892) 3 CH 273; Wenlock vs Moloney (1965) 2 All E. R. 871; Libyan Arab Bank of Uganda Ltd; H. C. C. S. 1007 of 1985 unreported per Odoki J.) Rules provides the plaint shall be rejected where it does not —— *f* disclose a cause of action. We consider therefore, that it is ys Intrep Co.

We are not here concerned with the part that further and better this case, Assumin g. then that the averments in the plaint have been proved, it must be asked whether by themselves they disclose a cause of action. particulars may be allowed to play because there were none in

As the pleadings show, the plaint was amended by Court order on 16th January, 1991•

In paragraph 1 of the amended plaint the plaintiff describes himself as the Ag. Director of Civil Aviation in Uganda up to the 18th August 1988. Paragraph *3* of the amended plaint then continues to allege that on the 18th August, 1988, the Permanent Secretary of the Ministry of Transport and Communications, a Government servant acting within the scope of his employment, wrote to the Plaintiff interdicting him from duty on the grounds set out in the letter which was attached to tne plaint as annexure "A".

The letter of 18th August, 1988 set out three cases of financial impropriety and then stated:-

> **11** "2. Police investigation may lead to your prosecution in court for the above offences. In view of this, I am interdicting you from the exercise of your functions, responsibilities and duties as Deputy Director General/ Ag. Director General of Civil Aviation on half pay with effect from 1st August, 19\$8i. This interdiction is to remain in force until your matters are finalised by court or unless/ until I am advised otherwise by police.

The amended plaint continues in paragraph 3 to allege tnat the Police investigated the allegations and found them unfounded, and consequently did not charge the Appellant with any criminal offence. Nevertheless, the interdiction was allegedly maintained for more than two years. The Permanent Secretary wrote to the Appellant on JOth April 1990, annexure B, which letter indicates tnat proceedings to retire the Appellant in the public interest were on foot. The last three paragraphs are especially important and are as follows:-

**v....**

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"It is on the above grounds that this Ministry found it difficult to present your case to the Public Service Commission for confirmation into your acting appointment of Director General for a number of years.

It has, therefore, been decided that a case be made against you to the Public Service Commission that you be retired in Public interest with an option that you be allowed to voluntarily retire prematurely from the services of the Government of trie Republic of Uganda.

The purpose of writing is to call upon you either to retire voluntarily .... or to show cause upon waich you exculpate yourself from the impending action of retirement in public interest ........ In the latter alternative your presentation should reach me within a week of this letter and in any case not later than Monday 8th May 1990."

The Appellant contends in paragraph 3(c) that this letter puts forward vague and general nature, which left the Appellant to guess for himself what the case against him might have been. (In fairness to the Permanent Secretary, the first three paragraphs of his letter of 30th April 1990 did set out and tnen gave General because of the Appellant's gross incompetence and causing divisions amongst the staff). Nevertheless, the Appellant contended that these allegations were unsatisfactory. The Appellant the Public Service Commission Regulations, which he contends, provide that an interdicted public officer, against wiiom no criminal or disciplinary proceedings are brought, snould be reinstated. The Appellant alleges in paragraph 3(e) that he appealed in vain for the Public Service Commission Regulations to be complied with. allegations of a a summary that the Appellant could not make a Director a number of complaints avers in paragraph 3(d) that his interdiction was ultra vires

hearing by the Commission. As a result the Appellant alleges in retired in the public interest, thereby causing him loss. The Appellant/plaintiff prayed for the following reliefs entitled to be informed of any charges against him and be given a paragraph 4 that he was unlawfully interdicted and unlawfully Moreover, the Appellant contends in paragraph 3(f) that he was

> A declaration that:- "a)

> > i) ii) the Plaintiff's interdiction and being improperly kept on interdiction for more than two (2) years was unlawful and ultra vires the Public Service Commission Regulations; the retirement in the public interest of the plaintiff by the President of Uganda was unlawful in so far as it was based on advice of the Public Service Commission which did not follow the prescribed procedure.

b) General damages,

plaint would primarily include the issues arising from the nature and length of the Appellant's interdiction; and secondly the legality or otherwise of tne retirement proceedings. c) & d) Costs and interest. It will be seen that the two main issues arising from the amended

The learned Judge approached the issue in the following way. He began by expressing the opinion that the length of time of the interdiction was not based on any existing regulations.

> H ''There is nowhere in the Public Service regulations - it is indicated what period a civil servant has to be on interdiction, (sic)

The learned Judge then quoted regulation 36(1) -

''Where a responsible officer considers that the public interest requires that a public officer snould cease to exercise the powers and functions of his office, he may interdict the officer from the exercise of those powers and functions,if proceedings for his dismissal are about to be taken or if criminal proceedings are being instituted against him." ^underlinings oy the Court)

6/ The learned Judge then dealt with the contention that the continued interdiction of the plaintiff was ultra vires the regulations which indeed provide that an interdicted public officer against whom no criminal or disciplinary proceedings are brought, should be reinstated. He accepted, so it seems, that 'the proceedings through inquires had been commenced" against the Appellant. Those proceedings The Appellant had been asked to make representations but did not. were culminated by the letter of April 1990\*

With great respect, it is difficult to follow the logic of those findings. We may commence with the learned Judge's finding above wnich seems to suggest that regulation 56 allows interdiction to be continued indefinitely. Both Counsel before this Court agreed that interdiction could only last for a reasonable time. If that were true, then the application to reject the plaint, What of regulation 36, and whether or not the facts alleged would fit within that construction. Once questions of fact arise, then the issue must surely go to trial. so far as tnis part of the case is concerned, must fail. a reasonable time might be would depend upon the time construction

On the other hand, it would not be open to the Respondent to rely upon the Judge's possible assumption, that interdiction might last indefinitely. Regulation 36 requires two pre-requisites;-

a) if proceedings for his dismissal are about

to be taken, or

b) if criminal proceedings are being instituted against him. It is clear that Regulation 36 is not intended to be open-ended. Interdiction may be ordered if proceedings are aoout to be taken are being instituted in b). Some lattitude between the act of interdiction and the institution of the proceedings mentioned may be allowed perhaps; but the gap must inevitably be short. in a), or

- 6 -

Whether the two years alleged in the amended plaint would fit within the construction of regulation 36 must be a question of mixed law and fact.

There is the suggestion that had commenced." In this case dismissal proceedings were not contemplate 'We are not sure what the learned Judge tnought that the phrase, "criminal proceedings are being instituted" would include Police inquiries. It is doubtful if that is correct. institute actual proceedings for dismissal, not a vague period for investigation. However that may be, there can be no doubt that dismissal proceedings are not the same as retirement in the public interest. Regulation 36 does not cover retirement in the public interest. It seems that the learned Judge may have accepted that construction, if he held that the police proceedings culminated in the letter of 30th April 1990\* If that is so. what happened after 30th April, 1990? On tnis aspect of the case then, two questions are left open: basis, and secondly how long did it last? "proceedings through inquiries was interdiction commenced on a legal in the letter of 18th August 1988. Judge meant by "disciplinary" proceedings. Apparently, the learned Regulation 36 appears to refer to the determination to Or' of a prosecution, and

On the last question of fact, if interdiction continued after 30th April 1990, did that not give ground for a declaration from that time onwards and possibly On this point the amended plaint is not quite clear. mean by more than two years? If interdiction started on 1983; two years would elapse on J5th April 1990. But the argument appears to run on until 30th April 1990, at least more than 2 years? What did the Appellant 4\$th April a case for damages?

8/....

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We notice that an application to amend the plaint was made bysummons, supported by affidavit, dated the 20th November 1990. The purpose was to introduce certain facts, one being that the Appellant was retired in the public interest from 18th August 1990 by the President of Uganda under Article 104 of the Constitution, and on the advice of the public Service Commission. The amendment was allowed by Soluade J on 16th January 1991\* The curious fact, however, is that these facts were not imported into the amended plaint. Presumably more than two years was intended to run up to 18th August 1990. We have to take the amended plaint as it stands. The 18th August 1990 has not been incorporated. We have to take it that the amended plaint covers the period 1£th April 1938 to 50th April 1990; unless it is to be further amended. It is not permissible to rely upon the affidavit or arguments presented during the application for amendment, first, because the amendments were not carried out, and secondly because in principle, we cannot look at affidavit evidence, outside the amended plaint, as we have explained above.

Even so there are sufficient facts upon which the plaint must show a cuase of action. In Auto Garage vs Motokou (No 3) (1971) held that a plaint may disclose a cause of action witnout containing all the facts constituting the cause of action, provided tnat the violation by the defendant of a right of the plaintiff is shown. In this case, having in mind the pre-requisites of regulation \$6, prima facie ''more than two years would not be commensurate with criminal proceedings being instituted. may need elucidation beyond 30th April 1990, and may possibly be the subject of further amendment, or curtailment as the case may be. But as tne amended plaint stands "More than two years" EA 51^ it was " interdiction

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there is a case for the Respondent to answer the relief claimed of a declaration and possibly damages.

Passing on then to the next issue relating to the legality or otherwise of the proceedings, there are two aspects which require attention.

The first concerns the learned Judge's decision couched in the following phrases:-

> ''These proceedings culminated in the Permanent Secretary •••• writing to the Plaintiff on JOth April 1990 informing him of the nature of charges against him asked the plaintiff to either retire on his own or make presentation within a week giving an explanation on the accusations. The plaintiff did not make the presentation or any response to that letter. Considering all the above, I do not see how the plaintiff would have been reinstated when disciplinary proceedings were initiated, and he was informed about them and asked to make a presentation which he did not respond to. The plaintiff's failure to make any representation as requested for, put himself out of the arena of being heard by his own choice. He cannot turn round and say that he was not heard."

This passage depends to a large extent on the fact that the Appellant did not repond and present his case. That fact is not in the pleadings. Its origin, according to the argument presented to this Court, lies in other proceedings. Unless it was admitted, the learned Judge could not rely upon it. Nothing was stated by Counsel before the Trial Court on this point. Consequently the learned Judge must be held to have relied upon an extraneous fact.

The second aspect concerns the powers of the Presidency under Article 104 of the Constitution. A good deal of argument in the trial Court concerned the effect of the decision in Qpolot vs Attorney General (1969) E. A. 1• It does not appear to us that that decision is relevant to the precise issues on this appeal. Whether or not the Appellant can be retired in the public interest at the will of the President, he is asking for declarations of another kind. He alleges that prior to tne decision to retire him^ he was unlawfully interdicted and then unlawful advise was given to the President.

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He considers that these unlawful features allow him to claim a declaration and damages. Several considerations arise from this situation.

First of all it is not pleaded how and when the decision to retire the Appellant was taken. As we have seen above, facts of this nature were to be added to the plaint when it was amended. The amendments have never been carried out. It is therefore not an apt case for a general constitutional discussion.

constitutional question was raised by the defence and therefore no reply was filed. The defence merely says that whatever was done was lawfully done. What is the position, then, if the Appellant accepts his retirement as a fact, but alleges that the steps taken to cause his retirement were unlawful? prima facie a subject has the ri~nt to expect procedures to be lawfully carried out, subject's rights. is not in point in this appeal. A distinction must be drawn between an application to reject a plaint and one wnen a matter of law is set down for argument as That distinction was very clearly explained in Nurdin Ali Dewji & Others vs Meghji & Co. & Others (1953) 20 £. A. C. A. 132. The distinction is that under Order 7 Rule 11(a) of the Bules,an inherent defect in the plaint must be shown, rather than that the suit was not maintainable in law. In the latter preliminary point snould be set down for hearing on a matter of law. (In Tanganyika at that time Order I2! Rule 2 would have been relevant. In Uganda the relevant rule is to be found in Order *fiif/* Rule 0 of the Rules)• If the State insists that as a matter of plaint rejected, under Order 7 Rule 11, but should apply to have the suit dismissed on and the remedy cif a declaration at least is apt to vindicate the *p</rr k (c.* Whether or not that is a 'py-rolic victory in the end a preliminary matter of law. a preliminary point. case a Secondly, no law no suit can be brought, the State should not try to have the

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Thirdly we should deal with Katikiro of Buganda vs A. G. of Uganda (1958) E. A. 765 to wnich we were referred. It was held there that Order 7 Huie 11 of the Rules, ought not to be applied to an action involving a serious investigation of law and questions of general importance• Subject to the decision in Nurdin Ali Dewji (above) and the need for the avoidance of loss of time and costs (See McKay vs Essex a general rule agree. But in this case facts as well as the law must be investigated and a trial is necessary. In that event, we hope that Legal Notice No.2 of 1988 will be considered if that is apposite. Area Health Authority (1982) 2 All E. R. *7?1)f we* would as

This is an appeal against an interlocutory ruling, wnich involves the trial Judge's discretion to some extent. Order 7 Rule 11 is not read as mandatory, as the Respondent submitted in the Court below. (See Auto Garage vs Motokou (No\* 3) U971) EA 5^^)» and amendment can be ordered. But on appeal, the Court of Appeal may not only interfere where the Judge has gone wrong in principle, but also if it satisfied that the Judge is wrong in giving no weight or insufficient weight to those considerations wnich ought to have weighed with him, or that he had been influenced by considerations wnich ought not to have Ward (1966) 1 ^B 273 at p 293. It follows that as the learned Judge unfortunately misconstrued regulation 3&» and took into account extraneous considerations, it is clear that the appeal must succeed. weighed with him (per Lord Denning in James vs

At the hearing of the appeal, set aside the judgment of the High Court, thus reinstating the suit. We ordered that the record be remitted to the High Court for trial by another Judge. We awarded tne costs of the appeal and of the application to reject the plaint, to the Appellant/plaintiff• These are the reasons for those orders. we allowed the appeal,

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$-12$ -Delivered at Mengo this ... I. H. ... day of A. ... M. ... 1993.

Traymit: S. T. MANYINDO DEPUTY CHIEF JUSTICE

A. H. O. ODER

JUSTICE OF THE SUPREME COURT

H. G. PLATT JUSTICE OF THE SUPREME COURT