Magomu v Attorney General (Miscellaneous Cause 312 of 2020) [2023] UGHCCD 425 (13 January 2023)

### **THE REPUBLIC OF UGANDA**

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

### **(CIVIL DIVISION)**

#### **MISC. CAUSE NO 312 OF 2020**

**MAGOMU NASURU=========================================APPLICANT**

### **VERSUS**

**ATTORNEY GENERAL=====================================RESPONDENT**

# **BEFORE: HON. JUSTICE PHILLIP ODOKI RULING**

#### **Introduction:**

[1] This application was by Magomu Nasur (hereinafter referred to as 'the applicant') against the Attorney General of Uganda (hereinafter referred to as 'the respondent'), by Notice Motion, under Articles 42, 45 and 173 of the Constitution of the Republic of Uganda, Sections 33, 36 and 38 of the Judicature Act Cap 13, Regulation 8 of Part (F – s) of the Uganda Public Service Standing Orders and Rules 3, 4, 6 and 7 of the Judicature (Judicial Review) Rules, 2009 as amended.

[2] The applicant sought for;

- i. A declaration that keeping him on interdiction beyond 3 months is illegal and an abuse of the law. - ii. A declaration that the process leading to his interdiction by the Chief Registrar of the Judiciary was arbitrary, excessive and high-handed. - iii. An order of Certiorari quashing the decision of the Chief Registrar of the Judiciary interdicting him. - iv. An order of Mandamus directing the Chief Registrar of the Judiciary to reinstate him the to his position and to pay him all his outstanding salary arrears.

v. An order for costs of this application be provided for.

## **Background**

[3] That the applicant is an employee of the Government of Uganda, working with the Judiciary as a Magistrate Grade One, having been appointed in 2015. In 2019 he was posted to Amolatar Magistrate Grade One Court.

[4] On the 24th June 2020, the Principal Judge, while carrying out inspection of courts in northern Uganda, visited Amolatar Magistrate Grade One Court and found the applicant absent from his station and the court premises were found dusty which, according to the Chief Registrar letter of 7th July, 2020, was an indication that there had been no activity in the court for some time.

[5] On the 26th day of June 2020 the Chief Registrar of the Courts of Judicature wrote to the applicant recalling him to the headquarters for further instructions. On the 7th July 2020, the Chief Registrar wrote to the applicant to respond, within 3 days, to a report of the Inspectorate of Courts regarding what was found at Amolatar Magistrate Grade One Court.

[6] On the 8th July 2020, the applicant made his response in which he explained that on the 24th June 2020, when the Principal Judge visited Amolatar Magistrate Grade One Court, he had travelled to Mbale for burial of his uncle. He also stated that he had been regularly working as demonstrated by his case returns.

[7] On 10th July 2020, the Chief Registrar wrote to the applicant interdicting him under Regulation 25(1) of the Judicial Service Commission Regulations, 2005 for absenting himself from duty without permission contrary to Regulation 23(d) of the Judicial Service Commission Regulations, 2005 and unsatisfactory performance of duty contrary to Section (F-s) paragraph 2(q) of the Uganda Public Service Standing Orders, 2010. The Chief Registrar, in the same letter of interdiction, forwarded the applicant to the Judicial Service Commission for disciplinary action.

# **The Applicants' case:**

[8] The grounds of the application were set out in the Notice of Motion, supported by the affidavit of the Applicant. In summary, the applicant's case is that;

- i. The process leading to his interdiction was arbitrary and contrary to the law. - ii. Under Section 8 of Part (F-s) of the Uganda Public Service Standing Orders, investigations against him should have been concluded within 3 months from the date of his interdiction and yet 3 months had elapsed without him being summoned by the Judicial Service Commission.

# **The Respondents' case:**

[9] The Respondent was duly served with this application on the 2nd day of November 2020 but did not file any affidavit in reply or appear in court for hearing on the 1st December 2020. At the hearing, the court directed that the respondent should file an affidavit in reply not later than the 21st December 2020 but the respondent did not any affidavit in reply.

# **Issues:**

[10] From the pleadings of the applicant, the issues for the determination of the court are;

- i. Whether the process leading to the applicant's interdiction and his subsequent interdiction was irrational and illegal. - ii. Whether the continued keeping of the applicant on interdiction beyond 3 months is illegal. - iii. What remedies are available to the applicant.

## **Legal representation and submissions:**

[11] At the hearing, the applicant was represented by Mr. Innocent Ikony. The court directed counsel for the applicant to file their written submission on the 1st December 2020 and serve the same onto the respondent on the 2nd December 2020. The respondent was directed to file written submissions in reply by the 21st December 2020. There is evidence on the court record to show that the respondent was duly served with the submissions of counsel for the applicant and yet the respondent did not file any submissions in reply. I have considered the submissions of counsel for the applicant in determining the above mentioned issues.

### **Consideration and determination of the court:**

**Issue 1:** Whether the process leading to the applicant's interdiction and his subsequent interdiction was irrational and illegal.

[12] Counsel for the applicant submitted that the Acting Chief Registrar acted irrationally when he interdicted the applicant. According to counsel, although under Regulation 25(1) of the Judicial Service Commission Regulations, 2005, the Chief Registrar has powers to interdict a judicial officer, such powers should be exercised fairly and not arbitrarily or excessively. Counsel relied on the case *Republic versus Commissioner of Co – operatives, ex parte Kirinyaga Tea Growers Co – operatives Savings and Credit Society Limited (1999) 1 EA 245* for the proposition of the law that no statute allows anyone on whom it confers a power to exercise such power arbitrarily, capriciously or in bad faith. Counsel pointed out that the applicant was recalled from Amolatar Magistrate Grade One Court to the judiciary headquarters without being given any reason, was told to go home after reporting to the office of the Chief Registrar and stayed at home for two weeks without knowing the reasons for his recall. According to counsel, the recall was a rush, predetermined arbitrary and unfair to the applicant.

[13] Counsel further submitted that before someone is interdicted, there should be a serious reason warranting the interdiction, such as, interference with investigation or a repeat of the misconduct. Counsel relied on the case of *Bob Barugare versus Kampala Capital City Authority and another, HCMA No. 413 of 2019* for the proposition of the law that only in exceptional circumstances, where there is reasonable apprehension that an employee will interfere with any investigation that has been initiated or repeat the misconduct in question that a preventative interdiction can be valid. Counsel pointed out that in the case of the applicant, he explained his absence from the station and there was nothing to show that he was going to interfere with the investigation or could not be transferred to another station.

[14] I note that although the applicant contended that his interdiction was illegal. Counsel for the applicant did not make any submission in support of that ground of the application. Counsel only submitted that the interdiction was irrational. I therefore assume that the applicant abandoned the ground that the interdiction was illegal.

[15] A decision is said to be irrational when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards. See the case of *Ignatius Layola Malungu versus Inspector General of Government, HCMC No. 059 of 2016.*

[16] On whether the decision of the Chief Registrar to recalled the applicant from Amolatar Magistrate Grade One Court to the judiciary headquarters was irrational, the letter of the Chief Registrar was very clear that the applicant was being recalled for further instructions. From the evidence on court record, it is clear that the recalling of the applicant to the judiciary headquarters was to pave way for commencing disciplinary proceedings against him following the Principal judge visit to his duty station. There was no legal requirement to give reasons for his recall prior to his recall. The applicant also complained that after reporting to the office of the Chief Registrar, he was told to go home. The applicant did not adduce any evidence of when he reported to the office of the office of the Chief Registrar and he was told to go home. In my view, the decision to recall the applicant from Amolatar Magistrate Grade One Court to the judiciary headquarters for further instructions was not irrational given the circumstances.

[17] On whether the interdiction of the applicant was irrational, the letter of the Chief Registrar interdicting the applicant clearly stated that the applicant was being interdicted in accordance with Regulation 25(1) of the Judicial Service Regulations, 2005 which provides that;

*"Whenever the Chief Registrar or the responsible interdiction officer considers that the public interest requires that a judicial officer other than a Judge should cease to perform the functions of his or her office, the Chief Registrar or responsible officer may interdict the judicial officer from the performance of those functions if disciplinary proceedings are being taken or are about to be taken or if criminal proceedings are being instituted against the judicial officer."* underlined for emphasis.

[18] From the above provision of the law, any decision to interdict a judicial officer has to be premised on two considerations.

- i. That it is in the public interest. For example, if it is believed that the judicial officer who is suspected to have committed an offence or a serious misconduct may; interfere with the investigation if he or she remains in office or temper with evidence or repeat the misconduct. - ii. That there is some reasonable or objective ground to suspect that an offence or serious misconduct has been committed by a judicial officer and disciplinary proceedings are being taken or are about to be taken or criminal proceedings are being instituted against the judicial officer.

# [19] In *Oyaro John Owiny versus Kitgum Municipal Council HCMC No. 0007 of 2018* my learned brother justice Mubiru stated that;

*"In most cases of interdiction, the nature and gravity of the criminal offence or disciplinary offence laid against the officer is such that it would not be in the public interest for the officer to continue to discharge his or her duties before he or she is cleared of the charge."*

# [20] In *Joel Ojuko Cox versus Attorney General HCMA No. 107 of 2004* Ag. Judge Remmy Kasule, as he then was observed that;

*"It is also good common sense and promotes a perception of Justice that if a public officer makes himself/herself to be the subject of Criminal investigations and to be released on police bond in connection with duties of his/her public office, that such officer keeps away from his/her office until the investigations are completed one way or the other."*

[21] In the instant case, there was reason to believe that the applicant had committed a serious misconduct of being absent from duty and failing to supervise the maintenance and cleanliness of the court premises at his duty station. The suspicion was based on what was found at the applicant's duty station on the 24th June 2020. Disciplinary proceedings had been initiated against him by requiring him to respond to the concerns in a report of the Inspectorate of Courts. In my view based on the nature of the allegations against the applicant, it was practical, sensible, proportionate and in public interest that the applicant should be interdicted to safeguard against any possibility of interfering with investigations. I therefore find that the process leading to the applicant's interdiction and his subsequent interdiction was irrational. Issue 1 is accordingly resolved in the negative.

**Issue 2:** Whether the continued keeping of the applicant on interdiction beyond 3 months is illegal. [22] On this issue, counsel for the applicant pointed out that the applicant received his letter of interdiction on the 13th July 2020 and that since then, 3 months has passed without the applicant being summoned by the Judicial service Commission. According to counsel, investigation ought to done and concluded within 3 months. Counsel submitted that the continued keeping of the applicant on interdiction beyond 3 months is illegal. Counsel relied on Regulation 8 of Part (F-s) of the Public Service Standing Orders and the case of *Bob Barugare* (supra).

[23] From the pleadings of the applicant and the submission of counsel, it appears to me that the applicant does not differentiate the role of the Chief Registrar after interdicting him and that of the Judicial Service Commission after he has been referred to it after interdiction.

[24] According to Regulation 8 of Part (F-s) of the Public Service Standing Orders of 2010, which was applicable at the time the applicant was interdicted;

*"Interdiction is the temporary removal of a public officer from exercising his or her duties while an investigation over a particular misconduct is being carried out. This shall be carried out by the Responsible Officer by observing that:-*

*(a) the charges against an officer are investigated expeditiously and concluded;*

*(b) where an officer is interdicted, the Responsible Officer shall ensure that investigations are done expeditiously in any case within (three) 3 months for cases that do not involve the Police and Courts and 6 months for cases that involve the Police and Courts of Law;*

*(c) where a Public Officer is interdicted, he or she shall be informed of the reasons for such an interdiction;*

*(d) a Public officer interdicted shall receive such salary not being less than half of his or her basic salary, subject to a refund of the other half, in case the interdiction is lifted and the charges are dropped;*

*(e) the Public officer under interdiction shall not leave the country without permission from the Responsible Officer;*

*(f) the case of a public officer interdicted from exercising the powers and functions of his or her office shall be submitted to the relevant Service Commission to note; (g) after investigations, the Responsible Officer shall refer the case to the relevant Service Commission with recommendations of the action to be taken and relevant documents to justify or support the recommendations should be attached."* Underlined for emphasis.

[25] From the above regulation, responsible officer (in this case, the Chief Registrar) has up to (three) 3 months for cases that do not involve the Police and Courts and 6 months for cases that involve the Police and Courts of Law to conclude investigations and refer the case to the relevant Service Commission (in this case the Judicial Service Commission) with recommendations of the action to be taken and together with relevant documents to justify or support the recommendations.

[26] In my view, after the responsible officer has referred the case to the relevant Service Commission, his or her role stops at that point. The period of 3 or 6 months stops to run or ceases to be an issue. Subsequent disciplinary proceedings before the relevant Service Commission is not limited to the period of 3 or 6 months. The interdiction cannot be lifted before the relevant Service Commission has not concluded the disciplinary proceedings.

[28] In *Mark E. Kamanzi versus National Drug Authority, HCMA No. 138 of 2021* the court was faced with a similar case where the applicant in that case argued that after the 6 months from the date of his interdiction, the respondent was duty bound to lift his interdiction and relied the provisions of Section F, item 8 (b) Part F-S of the Public Service Standing Orders. My Learned Brother Judge Boniface Wamama held that;

*"Looking at the said provision, it makes reference to completion of investigations within six months in cases that involve the Police and the Courts of law. This was one such case. The argument for the Applicant is that by virtue of the above provision, the Applicant's interdiction ought to have been lifted after six months whether the court proceedings were still on or not. In my view, the above argument is based on a misconstruction of the said provision of the Standing Orders which is also replicated in the Public Service Commission Regulations. This is because the provision is in reference to completion of investigations so that the officer knows his/her fate which can be either subjection to disciplinary* *proceedings, criminal prosecution or exoneration. Once the investigations are complete within six months, and any of the foregoing action is taken, then the provision under item 8 (b) above of the Standing Orders is satisfied. This can be discerned from a clear reading of Item 8 (g) of the Standing Orders (supra) and Regulation 38 (7) of the Public Service Commission Regulations."*

[29] In the instant case, the Chief Registrar in his letter interdicting the applicant notified the applicant of his interdiction, the offences he was being charged with and also forwarded the applicant to the Judicial Service Commission for Disciplinary action. The relevant parts of the letter read as follows:

*"10 July 2020*

*H/W Magomu Nasuru Magistrate Grade 1*

## *INTERDICTION*

*This is to inform you that I am interdicting you under Regulation 25(1) of the Judicial Service Commission Regulations, 2005 for absenting yourself from duty without permission contrary to Regulation 23(d) of the Judicial Service Regulations, 2005 and unsatisfactory performance of duty contrary to Section (F-s) Paragraph 2(q) of the Uganda Public Service Standing Orders, 2010.*

*Particulars of the offence is that:*

- *1. On the 24th June, 2020, you absented yourself from duty without permission.* - *2. On the 24th June, 2020 you failed to supervise the maintenance and cleanliness of the Court Premises.*

*Therefore, in accordance with Regulation 25(1) of the Judicial Service Commission Regulations, 2005, I am interdicting you and forwarding you to the Judicial Service Commission for disciplinary action.*

*You are directed to handover, with immediate effect, any government property in your possession, in accordance with section F-d of the Public Standing Orders.*

*During the period of your interdiction, you will receive half pay of your monthly salary. You are restricted from leaving Uganda without the permission of the Chief Registrar.*

*By copy of this letter, the Secretary, Judicial Service Commission is informed of your interdiction.*

## *Tom Chemtai Ag. CHIEF REGISTRAR*

*Copy to:*

- *- The Hon. The Chief Justice* - *- The Hon. The Principal Judge* - *- The Chief Inspector of Courts* - *- The Chairperson, Judicial Service commission* - *- The Permanent Secretary/Secretary to the Judiciary* - *- The secretary, Judicial Service Commission.* Underlined for emphasis.

[30] Since the applicant was already forwarded to the Judicial Service Commission for disciplinary action, the only logical conclusion that can be drawn is that the Chief Registrar had already concluded his investigations against the applicant. The period of 3 which required him to complete investigation ceased to run or being in issue. Having been referred to the Judicial Service Commission, the proper remedy for the applicant does not lie in challenging the interdiction on account of the 3 months period. The only remedy available to him would be to follow up his case with the Judicial Service Commission. It is the Judicial Service Commission to conclude his disciplinary proceedings and consequently inform the Chief Registrar whether the interdiction should be lifted or not.

[31] I have not found the case of *Bob Barugare* (supra) of any relevance to this case since the facts in that case are completely different from those in the instant case. In the *Bob Barugare* (supra), the applicant was interdicted, the responsible officer informed the Public Service Commission of his interdiction but the responsible officer did not conclude investigation against the applicant within the prescribed time or referred to the Public Service Commission for action to be taken against him for more than 3 years. My Learned brother Judge Sekaana held that the continued interdiction of the applicant beyond the 6 months was illegal. In the instant case, the Chief Registrar referred the applicant to the Judicial Service Commission the same day he was interdicted.

[32] In the end, I find that the continued keeping of the applicant on interdiction beyond 3 months is not illegal. Issue 2 is therefore resolved in the negative.

## **Issue 3:** What remedies are available to the applicant.

[33] Since the applicant failed to prove that his interdiction was irrational and that his continued interdiction is illegal, he is not entitled to the remedies prayed for. This application is accordingly dismissed. I shall not make any orders as to costs given the fact that the respondent did not file any response to the application or appear in court to oppose application.

I so order.

Dated and delivered by email this 13th day of January, 2023.

**Phillip Odoki JUDGE.**