Maruk v Attorney General and Judicial Service Commission (Consolidated Civil Suit 148 of 2015; Consolidated Civil Suit 149 of 2015) [2023] UGCA 188 (14 July 2023)

Full Case Text

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#### THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA

(Coram: Muzamiru M. Kibeedi JA, Irene Mulyagonja JA, Eva K. Luswata JA)

# CONSOLIDATED CIVIL APPEALS NO. 148 AND 149 OF 2015

#### **BETWEEN**

MARUK JOSHUA .................................... ......................................

#### AND

### 1. ATTORNEY GENERAL 2. JUDICIAL SERVICE COMMISSION................... RESPONDENTS

(Appeal from the Judgments of E. Musoke, J, B. Kabiito, J and Y. Nyanzi, J) at Kampala delivered on 16th December, 2013 in)

#### JUDGMENT OF EVA K. LUSWATA, JA

#### Introduction

$\cdot \qquad \cdot$

- The two appeals under consideration here arose from two independent appeals of the High Court. Civil Appeal No. 148 of 2015 arises from High Court Civil Appeal No. 69 of 2013, and Civil Appeal No. 149 of 2015 arises from High Court Civil Appeal No. 70 of 2013. At the hearing of the two appeals on 29/6/2022, exercising our powers under Rule 101 of the Judicature Court of Appeal Rules SI 13-10, we allowed the prayer for the consolidation of the two appeals. In both appeals, Mr. Maruk Joshua is the appellant, with both the Attorney General and Judicial Service Commission (JSC), as respondents. - 2] For case of reference, we shall refer to the two consolidated appeals as follows:

Civil Appeal No. 148 of 2015 as the "first appeal" $\mathbf{i} =$

11 Civil Appeal No . 149 of 20 15 as the "second appeal"

### A brief ba und

3l The first and second. appeals were filed by the Mr. Maruk the appetrlant, after being dissatisfied and aggrieved by the judgements and decision of the High Court in Civil Appeal No . 69 of 20 13 and Civil Appeal No. 70 of 2OI3, both originating from the decision of the JSC vide Complaint No. PRI 167 195 l24O/05 of 2OO9, and Complaint No. PRI 167 lgSl24OlOL of 2008, respectively. The Appellant was charged, tried and convicted in both matters for contravention of the Uganda Code of Judicial Conduct (hereinafter the Code) contrary to Regulation 23 U) of the Judicial Service Commission Regulations , 2OO5 hereinafter (JSC Regulations), and for beinglazy contrary to Regulation 23 (0 of the JSC Regulations, 2005.

# Background qf Civil Appeal No. 148 of 2O15

4l The facts were that the appellant, was a judicial officer and at the relevant time, appointed at the rank of Chief Magistrate in the Lrra Chief Magistrate's Court. During 2OO2, he heard Civil Suit No. 1O1 12OOZ, [Norbert Okullo versus Attorney General], concluded it in October 2003, and reserved his judgment for 01112 l2OO3. That by 2OOg, the appellant had not delivered his judgment in spite of several letters reminding him of the delay. In defence to the charge, the appellant explained that the failure to write the judgement was due to his transfer from Lrra, during which period he lost track of his pending files. The JSC Disciplinary Committee rejected his defence and

recommended for his demotion to a Senior Principal Magistrate Grade The appellant appealed to the High Court and the court upheld the decision of the JSC and dismissed his appeal, hence this appeal.

## Background of Civil Appeal No. L49 of 2O15

- 5] During 2OO2 and 2OO3, the appellant presided over Criminal Case No. 343 of 2OO4, Uganda versus Lister Odongo. Hearing of the matter was concluded on 2l't April, 2005 but judgment was delayed and delivered on 26th March 2OO9, after Mr. Odongo lodged a complaint with the JSC on 3Oth July, 2008. In defence to the charge, the appellant stated that although he wrote the judgement and sent it to Lira Court for delivery, the complainant never showed up to receive it. Again, the JSC rejected his defence and upheld the charge. He filed an appeal to the High Court which upheld the decision of the JSC, and hence this appeal. In the meantime, on L4th June 2Ot3, by a letter of the Acting Chief Registrar, the appellant was dismissed from the judicial service without pension benefits. - 6] In Civil Appeal No. 148 of 2015, the appellant raised six grounds set out in the Memorandum of Appeal. The same grounds were reproduced in Civil Appeal No. I49 of 2015. We are for clarity, consolidating the two memoranda of appeal into one. The grounds are as follows: - - That the Learned Judges erred in laut when theg did. not Pronounce themselaes on the count of laziness, which wa.s a basis o/ the appellqnt's dtsmisscl bg the Judicfal Se ntice Commission. t

- ll. That the Learned Justices of the High Court erred in law when theg found that the Judicial Sentice Comrnission properlg exercised. the power under regulation 35(i) with respect to an offence under regulation 23 (il all of S.f 87/2 OO 5 (Judicial Sentice Regulations). - ttl. That the learned Justices of the High Court erred in law when theg uphetd the penaltg of dismissal despite having found. that the offence of laziness had not been proaed. - LU. Thg1t the learned Justices of the High Court erred in law when theg maintolined a. manifestlg harsh penaltg meted against the Appellant bg the Judicial Sentice Commtssion utithout taking into account the mitigating factors. - U That the learned Justices of the High Cour-t, erred in laut when theg maintained that the appellant uta.s a. repeat offender. - UI That the learned justices of the High Court erred in law when theg held. that the Judicial Serttice Commission had not shifted the burden of proof and lowered the standard of proof. - 7l Similarly, in both appeals, the appellant sought the same orders/remedies. He prayed this Court, - i. Allows the aPPeal - ii. Sets aside the judgements and orders of the High Court - iii. Reinstates the appellant in service.

### Representa tion

B] At the hearing of the appeal, the appellant was represented by learned Counsel, Mr. Okong Innocent and Mr. Paul Musiitw?, while the respondent was represented by learned Counsel Ms. Goreti Arinaitwe, a Senior State Attorney from the chambers of the Attorney General.

### Preliminarv obie ction

9] As part of her submissions, Ms. Arinaitwe raised a preliminary objection that the grounds of appeal offend Section 74 of the Civil Procedure Act which restricts grounds of appeal on a second appeal, only to matters of law. Ms. Arinaitwe cited the decision in Kifamunte Henry verses Uganda, SCCA No. 1O of L997 to support the objection. Mr. Akong substantially agreed with the law as raised by counsel for the respondent. He too cited the decision in Kifamunte (supra) and then argued that this Court when sitting on second appeal, can interfere with findings of the appellate court where it appears there was no evidence to support any findings of fact, which is a question of law. In his view, all the grounds of appeal raised matters of law.

### Analysis

10] Having lost the case before the JSC, the appellant exercised his right under Regulation 18 of the Judicial Service (Complaints & Disciplinary Proceedings) Regulations, 2006 hereinafter (JSC Complaints Regulations), to appeal their decision to the High Court. He lost both appeals. Considering their submissions, both counsel were in agreement that the present appeal was a second appeal to the Court of Appeal. Should that be the case, then we would accept the submissions that second appeals to this Court must be on matters that

raise questions of law only. According to Black's Law DictiontrYl, 2 question of law is an issue to be decided, concerning the application or interpretation of the law. It is a question that the law itself has authoritatively answered or an issue of what the law is on a particular point. Therefore, it cannot be one decided on discretion.

- 11] However, the question whether this is a second appeal or not, is a question of law and the absence of a contest by either party, cannot by itself render the appeal a second appeal if in law, it does not qualify as one. To answer that question, we would therefore reqLrire to first confirm whether, when hearing the complaints against the appellant, the JSC Committee sat as a first Court of instance, one that is subordinate to the High Court. We are guided by the decision of the Supreme Court in JB Chemicals & Pharmaceuticals Ltd versus Glaxo Group Ltd Civil Appeal No. 18 of 20O412Cl0,6\ UGSC LZ in which similar facts were considered. - l2j In the above case, the Assistant Registrar of Trademarks made a decision with regard to the registration of a certain Mark. An appeal was lodged in the High Court to contest that decision, and eventually appeals to both this and the Supreme Court followed suit. The Supreme Court found that proceedings before the Assistant Registrar did not result into a decree as defined by Section 2 Civil Procedure Act, because that officer was not a court. The Justices continued that there was no automatic right of appeal except in the form authorised by the Trade Marks Act and Rules thereunder. They considered that the Registrar sat as an administrative tribunal and that the use of the word "appeal" ir:r the Act

1Bryan A. Garner. LOth Ed at Page 1.442

meant a reference of a complaint lodged against the decision of the Registrar to the High Court. However, since the appeal was filed on a Notice of Motion, the Court went ahead to find that the High Court sat as a court of first instance, and the decision of the High Court was a special order which was appealable as of right under Section 66 CpA to the Court of Apped, which then heard that appeal as a first appeal.

13] Similarly, the JSC which is created under Article L46 of the Constitution is not a court but an administrative body mandated to advise the President in his powers of appointing Judicial officers. In addition, the JSC has the mandate to discipline and remove a certain category of JOs from office. When executirg the latter mandate, the JSC conducts disciplinary proceedings akin to a quasi-judicial body. It would follow then that the decision of the JSC was not a " d.ecree" envisioned under Section 2 of the CPA. At best, it would be an administrative order, or simply put, a decision of the Commission which is appealable as of right to the High Court under Regulation 18 of the JSC Complaint Regulations. Thus, although the proceedings before the High Court were commenced by a memorandum of appeal, the High Court is regarded as the Court of first instance, and the decision it made was a decision that was appealable as of right under Section 66 CPA. Thus, we heard and now decide the appeal from the decision of the High Court as a first appellate Court. Under Rule 3O(1) COA Rules, we have powers to consider matters of facts and law or a mixture of the two. It is clear that in the six grounds of appeal of both appeals, the appellant raised matters of fact and a mixture of law and fact. We shall not repeat them here.

l4l We accordingly find no merit in the objection raised by Ms. Arinaitwe, and it is dismissed. We shall accordingly proceed to resolve the grounds of appeal, which we shall resolve in the following order. Grounds 1, 2, and 3, followed by grounds 5 and 6. Ground 4 which challenges the severity of sentence, will be handled last.

# Submissions for the appellant in the consolidated appeals. Ground One

151 Mr. Okong submitted that the learned Judges of the High Court did not pronounce themselves on the count of laziness which was the basis of the appellant's dismissal by the JSC. He continued that there were no normative legal parameters laid out to define the ingredients and extent of conduct arnounting to lazrness, and it is therefore unclear what amounts to laziness. In particular, that the High court did not make any express findings on the guilt of the appellant in specific regard to the offence of lazrness and as such, merely proceeded to consider the evidence and concluded upon it generally. Lastly, counsel submitted that the High Court dismissed the appellant's appeal without deciding whether or not the appellant was guilty of the offence of laztness.

# Submissions for the resnondents in ground one

161 In response, Ms. Arinaitwe submitted for the respondent that the learned Judges of the High Court considered and then rejected all the grounds of appeal. She argued further that the High Court was not tasked with determining the count of lazrness but rather, to examine if a correct decision was arrived at. That that being the case, the High

Court Judges were under no obligation as the first appellate Court, to pronounce themselves on matters that had not been presented before them on appeal.

- l7l Ms. Arinaitwe then drew our attention to page 16 line tg of the record of appeal which in her opinion was the High Court's decision on that point. Ms. Arinaitwe further submitted that the appellant was duty bound by the judicial oath and code of conduct to deliver a judgment in the case. That failing to deliver the judgment for over nine years, arnounted to breach of both the JSC Regulations and paragraph 6.2 of the Code. She invited the Court to disregard this ground as devoid of merit. - lBl Counsel for the respondents concluded by inviting this honourable court to find that the aforementioned grounds have no merit.

# Submissio ns for the appellant in reioinder in und one.

19] In rejoinder, Mr. Okong conceded that the appellate court ha6 no obligation to determine the count of lazrness against the appellant, but only to determine whether the JSC arrived at the correct decision. He submitted that the duty of the High Court is to re-evaluate the evidence of the trial court and draw its own conclusions. In his view, the appellate court in discharging the duty above had the power to come to its own conclusions, to hold that the appellant had been wrongly dismissed on a basis of laziness, when there had been no evidence in support of the charge, which would be a finding on the count of laziness.

#### Analysis and decision on ground one

Our powers on a first appeal are embodied in Rule 30(1)(a) of the 201 Rules of this Court which provides as follows:

> "On any appeal from a decision of the High Court acting in the exercise of its original jurisdiction, the court may reappraise the evidence and draw inferences of fact."

In Kifamunte Henry vs. Uganda, Criminal Appeal No. 10 of 1997, the Supreme Court guided that the duty of a first appellate Court is as follows:

> "The first appellate court has a duty to review the evidence of the case and to reconsider the materials before the trial judge. The appellate Court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it."

We shall bear in mind the above principles when deciding this appeal.

The right of appeal against the decision of the JSC to the High $21$ Court is created under Regulation 18 of the JSC Complainants Regulation 2005 which provides that:

> "A judicial officer who is dissatisfied with the decision of the Commission, may appeal within thirty days after the decision has been made, to a panel of three judges of the High Court stating the reasons for which he or she is not satisfied"

The above law did not provide the mode in which such an appeal can be lodged. However, the law in civil and criminal appeals requires that the appellant presents a memorandum of appeal that enumerates the grounds of appeal with some specificity. The appellant in the present appeal chose to proceed by filing two memoranda. We accept Ms. Arinaitwe's submissions that there was no specific ground in the memorandum of appeal to the High Court contesting the decision of the appellant's conviction for laziness. It is true then that the Juclges were not properly guided by the pleadings before them.

221 That said, in ground one, a general ground was raised as follows: "The Commission misdirected itself and occasioned a miscarriage of justice to the appellant when it decided against the weight of evidence,,.

We consider that in that ground the issue of the evidence adduced for either party, and the manner it was evaluated was questioned. It rnras the duty of the High Court as the Court receiving the reference to put all evidence to fresh scrutiny and then confirm and come to its own finding on its strength, and whether it could sustain the two charges on which the appellant was convicted.

23) It is evident that in both cases, the appellant was charged on two counts contrary to Regulations 23(f) and 23(J) of the JSC Regulatio,s respectively. In Appeal No. 1, it was raised in count two, and in Appeal No. 2, it was raised as count one. However, in their decisions, the JSC Disciplinary Committee considered both counts in an omnibus fashion and carne to a similar decision that the appellant was "found. guilty as charged". The rulings in either actions appeared to cover only the ground raised in respect to Regulation 23U) and not that of laziness. It may well be that the offences are quite related, but the prosecutio, made no attempt to adduce evidence or submit on the charge of laziness- The High Court appeared to have appreciated that omission

when in the Judgment in Appeal No. 69 of 2013 (at page 8/line 17 of the judgment) they stated that:

"In fact, it is our finding that judgment in the matter was delayed well over 9 years.

Count 11 on laziness was not proved as no evidence was adduced to that effect. None the less, even if the disciplinary committee had made a finding that appellant was not guilty of laziness, the finding on Count 1 was sufficient to convict him"

According to Regulation 15 of the JSC Complaints Regulations, 241 the Disciplinary Committee will reserve its ruling only after hearing the evidence and submissions from both parties. The agreed principle is that the JSC can only convict on the basis of the evidence adduced and nothing more. Even so, we are strongly persuaded that the Commission sits as a disciplinary body and not a criminal court. Thus, the principles for criminal trials which for example require that evidence on each count is received and considered separately, and that a definite verdicts given on each, would not apply. In addition, we note that the facts as stated in the charge sheets were exactly the same for the two counts. The allegations were that by failing to write the judgment in Uganda versus Odongo, the appellant committed two wrongs (1) laziness c/t Rule 23(f) and contravention of the Code under Regulation 23(j). The committee considered the two counts together and found that the facts proved both of the counts because they were the same. It is correct that the Committee did not divide their rulings into count 1 and 2, but the facts as related and hardly contested by the appellant, proved both counts because they were the same, and the findings answered both charges upon which the proceedings were initiated. Therefore in view of Article 126(2)(e) of the Constitution, the JSC

observed substantive justice without due to technicalities. The appellant did not show any prejudice suffered and indeed we do not see any miscarriage of justice in that regard. Finally, we are strongly persuaded, as the Judges of the High Court were, that the failure to deliver a judgment for periods of three and six years, reflect laziness. The appellant did not have to wait for a complaint to be brought before the Chief Registrar and JSC, before writing his judgments.

For the above reasons, we find no merit in the first ground, and 25 it fails.

#### Ground two

## Submissions for the appellant on ground two

- $26]$ Mr. Okong submitted that the Judicial Integrity Committee, Peer Committees and the Judiciary as a whole, are the responsible organs for promoting awareness of the principles and rules set out in the Code. In his view, going by its preamble, the Code was adopted by judicial officers as a self-regulating mechanism for their institution and as such, the promotion and enforcement section of the Code charges the Judiciary by itself, with the duty to promote the realization of the Code. Counsel submitted that the High Court ignored this unique enforcement mechanism of the Code. - 271 Mr. Okong further submitted that by necessary implication, the powers of the JSC to commence disciplinary proceedings against judicial officers for breach of the Code are not absolute since the Code

was meant to be enforced by the Judicial Integrity Committee, Peer Committees and the Judiciary as a whole. Therefore, that, the JSC does not have the power to commence disciplinary proceedings under the Code in its own right. Counsel contended that the powers of the JSC to discipline judicial officers for breach of the Code are limited to situations where such matters are initiated by the abovementioned committees, or any member of the Judiciary.

2Bl In his view, the decision of the learned Judges of the High Court on this point, was a tragic over simplification of the appellant's argument that the JSC's mandate to discipline judicial officers under the Code, must be exercised at the initiation of either those committees or a member of the Jud.icitry, but not the JSC. He opined therefore that, the JSC misused her disciplinary powers to the prejudice and detriment of the appellant, when without initiation by any members of the judiciary, they tried the appellant on count two of the charge sheet. In conclusion, that count 2 should never have been under consideration by the High Court.

# Submissions for the respondents on ground two

#### Civil Appeal No. 148 of 2015

2gl Citing Regulation 23 and 35 of the JSC Regulations, Ms-Arinaitwe contended that the JSC was competent to hear the complaint of failure to deliver judgement by the appellant. She then drew our attention to Page 15 line 19 of the record that a complaint was duly lodged with the JSC in accordance with the above regulations. That it is upon that complaint that the JSC investigated and then came LIp

with charges found in the Code and JSC Regulations 2005, and upon which the Disciplinary Committee of the JSC heard the matter. Ms. Arinaitwe continued that under Regulation LO(2) of the JSC Regulations, S. I 88 12005, the JSC has a right to hear and decide a complaint. She in addition referred to Article L4B of the Constitution which empowers the JSC to appoint persons to hold or act in any Judicial office and to exercise disciplinary control over, and remove persons holding or acting in such offices.

3Ol In conclusion, cotlnsel invited this Honourable court to find that the first appellate Court correctly found that the JSC properly exercised their power under Regulation 35(i) with respect to an offence under Regulation 23bl of the JSC Regulations by investigati.g, hearing and determining the complaint against the Appellant.

## Civil Appeal No. L49 of 2015

31] Ms. Arinaitwe referred to Regulation 23 as a whole and in particular Regulation 230) of the JSC Regulations S.1 87 l2OO5, to submit that the JSC has power to discipline a judicial officer for contravening the Code. In her view, the framers of S.l 87 /2OOS which brought into force the Judicial Service Commission, intended that the Code becomes one of the Rules and Regulations by which judicial officers may be disciplined, if contravened.. Counsel further submitted that the appellant breached paragraph 6.2 of the Code when he delayed to deliver judgement in Criminal Case No. 343 of 2OO4 without providing a good reason for doing so. Therefore, that the complaint

against the appellant was properly commenced, duly investigated and considered by the JSC Disciplinary Committee.

321 Ms. Arinaitwe again referred to Article 148 of the Constitution which empowers the JSC with the function of appointing and exercising disciplinary control over persons who hold or act in any Judicial office, ?S well as removi.rg such persons from office. In conclusion, she invited us to find that the first Appellate Court correctly found that the JSC properly exercised its power.

## Submissions for the appellant in rejoinder

331 In rejoinder, Mr. Akong reiterated his submissions that a finding on whether or not the appellant was in violation of the Code was a preserve of the Judiciary Integrity Cornmittee, Peer Committees and Judiciary as a whole. He asserted that it was erroneous for the JSC to dismiss the appellant from service on the basis of the provisions of the Code, and it was erroneous for the High Court to confirm the decision of the JSC.

## Analysis and decision on ground two.

341 We have carefully considered the submissions of counsel and the law generally as referred to by counsel. The JSC which is created under Article 146 of the Constitution has its functions and powers relayed in Articles 147 and 148. A core function under Article I47 (d) is to receive and process people's recommendations and complaints concerning the Judici ary and the administration of justice generally, and also to act as a link between the people and the Judiciary.

In order to do so, it is provided in Article 148 that:

"Subject to the provisions of this Constitution, the Judicial Service Commission may appoint persons to hold or act in any judicial office other than the offices specified in clause (3) of article 147 of this Constitution and confirm appointments in and exercise disciplinary control over persons holding or acting in such offices and remove such persons from office

It is then emphasized in Article 147(2) that:

In the performance of its functions, the Judicial Service Commission shall be independent and shall not be subject to the direction or control of any person or authority.

- Further, according to Regulation 35 of its Regulations, the JSC 351 may, on its own volition, commence disciplinary proceedings against a judicial officer. The Supreme Court has in the decision of AG versus Gladys Nakibuule Kisekka, Constitutional Appeal No. 2 of 2016, affirmed the jurisdiction of the JSC, by holding that it is the clearly identified body to which all judicial officers are accountable. - It is not in contention that the appellant falls under the category 36 of judicial officers that can be disciplined by the JSC. That the mandate of the JSC to discipline Judicial officers is provided for in the Constitution, and the Supreme law, should not be under question. In both proceedings the appellant was charged under Regulation 23 which provides that:

A judicial officer commits an offence against discipline if he or she does all or any of the following(j) acts in contrauention of the Code of Judicial Conduct, the Judicial Oath or anA other oath taken by the iudicial officer;

- 371 That offence was placed squarely under the jurisdiction of the JSC. Thus, Mr. Akong's submission that violation of the Code is the preserve of the Judici ary organs mentioned, is misplaced. The promotion and enforcement section of the Code provides that the Judicial Integrity Committee, Peer Committees and the Judiciary as a whole, shall promote awareness of the principles and rules set out in the Code and shall encollrage all Judicial officers to complywith them. That cannot be mistaken for the mandate to prosecute and discipline Judicial officers, which is a mandate grounded in the Constitution and other enabling laws. I see nothing in the law, as Mr. Akong claims that the JSC has no power to commence disciplinary proceedings and act on them, by carrying out disciplinary action. - 33] For the avoidance of doubt, the Judicial Integrity Committee (JIC) is mandated to promote and strengthen judicial Integrity within the Judiciary and improve service delivery. In fulfilment of this mandate, the JIC periodically visits Courts around the country holding meetings with all stakeholders with an aim of getting a first-hand account about the performance of the judiciary and identification of common areas of concern in the administration of justice. During such visits, it may confirm if previous complaints have been addressed2. In addition, the teams not only set out to get feedback on service delivery from justice stakeholders, but also to get feedback on improvements in areas previously complained of. On the other hand, the basic function of Peer

2Judiciary Report of the 20L1, Annual nationwide field visits

Committees is to encourage judicial officers to uphold and adhere to the Judicial Code, they in addition provide appropriate counselling/advice to any judicial officer who is reputed or alleged to be engaged in conduct unbecoming of the office, and provide appropriate guidance or explanation of the Judicial Code, as well as all other matters expected to strengthen judicial integrity. Although the Judici ary appoints a Disciplinary Committee, its mandate is restricted to the support staff only, with no disciplinary powers over judicial officers.

- 39] Since the powers of the JSC are prescribed under the Constitution, the provisions of the Code cannot override or supersede them. Indeed, the supremacy of the Constitution is emphasized in the Code by indicating that the judicial authority must uphold the principles laid down in the Constitution. I would therefore reject Mr. Akong's submissions and instead accept Ms. Arinaitwe's argument that the JSC was a competent authority to receive, investigate and then hear the complaint against the appellant over his failure to deliver two judgements within a reasonable time. I have confirmed from the record that the JSC correctly established a primafacie case after investigation, upon which the complaint was put before the JSC Disciplinary Committee for hearirrg. By doing so, the JSC did not contravene any law, and since no complaint is raised against the actual proceedings before it, I would find that the complaint in this ground lacks merit. - 4O1 Accordingly ground two of the consolidated appeal would fail.

# Submissions for the a ellant on ground three Ground three

#### In Civil Appeal No. 148 of 2015

- 4ll According to Mr. Akong, the High Court erred when it casually dismissed the value of perusing the physical file in the two impugned appeals. In his view, that information would have been useful additional evidence that would have enabled the JSC to verify the appellant's version of facts which is; whether or not he had actually written the judgement, and its delivery was frustrated by the misplacement of the file in the Court. Mr. Akong reasoned that perusal of the file, or its duplicate, any necess ary correspondence regarding the status of the case would have been discovered, which would have cleared up the loopholes of evidence that arose in the lower court. - 421 Mr. Akong further reasoned that any discoveries would have been crucial to the liability of the appellant on the charges he faced. That it would have in addition shown the JSC that the appellant had indeed acted diligently in preparing the impugned judgement, which would have exonerated him. In counsel's view, failure to peruse the file meant that the JSC did not have an adequate factual basis to determine whether or not the appellant had indeed provided a satisfactory explanation to the charge. He continued that the High court ignored the glaring and inexcusable gaps and weaknesses in the prosecution evidence presented before the JSC for there was no actual evidence produced by the prosecution to show that the impugned judgement was never written. He submitted that there was still an option to open up a duplicate file as is the practice, in the event of a missing court file.

## In Civil Appeal No. L49 of 201s

- 43ll In the same vein, Mr. Akong submitted that perusing the physical file would have enabled the JSC to verify the appellant's version of facts that he had actually written the judgement in 2OO5 and that its delivery had only been frustrated. That the committee would also have been able to verify whether it was indeed true that Mr. Odongo the complainant, missed court attendance on days when the judgement was meant to be delivered. In Mr. Akong's view, such discoveries would have been crucial to the liability of the appellant on the charge brought against him for it would have shown that the appellant had indeed acted diligently in prepari.rg the impugned judgment. In particular, that the copy of the judgment on the file would have shown the date on which the appellant signed it off in 2005. That without that information, the JSC did not have an adequate factual basis to determine whether or not the appellant provided a satisfactory defence to the charge. - 441 Mr. Akong submitted further that the High Court ignored the glaring and inexcusable gaps and weaknesses in the prosecution evidence. He in particular pointed out that the JSC only relied on the appellant's alleged admission of this fact to convict him. That His Worship Nyipir Gabriel, who eventually delivered the Judgement in 2OO9 was never called by the prosecution to clarify on when he had actually received the judgement, and on the controversy surrounding

the whereabouts of the court file at the time when the complainant was filed. Mr. Okong argued further that there was no evidence adduced to corroborate the alleged visits by Odongo to the Court in Lira to ask for the judgement to be delivered and that as the appellant testified, hearing of Mr. Odongo's case, was itself significantly hampered by the accused's irregular attendance. He argued then that the JSC and the High Court simply chose to take Odongo by his word and then asked the appellant to disprove him, which violates the rules of natural justice and evidence, as later argued in ground 6 hereunder.

45] Counsel concluded for the 1"t and 2"d appeal, by submitting that the High Court Judges erroneously confirmed the finding of guilt for the appellant and his subsequent sentence, because there was no cogent evidence presented by the prosecution to prove all the charges preferred to the appropriate legal standard.

## Submissions of the respondent on ground three

461 In response, Ms. Atwine submitted that the High Court was not tasked to determine the count of laziness against the appellant in the JSC, but rather to examine the decision of the Disciplinary Committee and determine whether they arrived at a correct decision. Therefore, that there was no obligation on the High Court to pronounce itself on matters that had not been presented before it. Ms. Arinaitwe again referred us to page 16 line 19 of the record of appeal where the court decided that the findings of the Disciplinary Committee in resolving the first count, were sufficient to convict him of lazrness. In Ms. Arinaitwe's view, the JSC did not base its decision to dismiss the appellant solely on the charge of Laeiness. She pointed out that the appellant was in addition charged with contravention of the Code contrary to Regulation 23bl of the JSC Regulations, 2005.

- 471 Ms. Arinaitwe continued that the appellant was duty bound by the Judicial oath and Code to deliver judgement in the case. That the appellant failed to deliver the judgement for over nine years in Civil Suit No. 101 of 2OO2, and, for three years in Criminal Case No. 943 of 2OO4. She considered that to be breach of both the JSC Regulations and Paragraph 6.2 of the Code and therefore, the first appellate Court upon evaluation of the evidence, rightly found that the decision of the JSC Disciplinary Committee on count 1 was sufficient for him to be convicted regardless of their finding on the count of laziness. - 48] Counsel for the Respondents concluded by inviting this honorable court to find that the aforementioned grounds have no merit.

#### Submissions for the appellant in reioinder.

49) Mr. Okong responded that the argument presented for the respondent that the appellate court had no obligation to determine the count of laziness against the appellant, but to determine whether the JSC Disciplinary Committee arrived at the correct decision, is misconceived. He drew our attention to the duty of the first appellate court as espoused in Kifamunte Henry Versus Uganda (supra). He stressed that the High Court in discharging her duty above, the Judges had the power to come to their own conclusion after re-evaluating the evidence. That they had no power to hold that the appellant had been

correctly dismissed on a basis of laziness, when there had been no evidence in support of the charge.

50] Counsel concluded by asserting that the court was duty bound to make a finding on the count of laztness.

## Analvsis and decision on ground three

- 51] In ground three, the appellant faulted the High Court for upholding the penalty of dismissal handed down by the JSC when the offence of laztness had not been proved. Perhaps for clarity, it ma5r have been necessary for the JSC to have approached each count separately, and given a separate verdict for each. However, as pointed out earlier in this judgment, the facts upon which both the JSC and High Court based their decisions were that the appellant failed to write and deliver judgment in one case, and delivered another after a period of six years. In our view, that was in contravention of the two quoted sections of the Judicial Service Commission Regulations and the Code, by the sarne facts. We agree with the High Court decision that failing to write and deliver a judgment as prescribed by the Code, would in the absence of any good cattse, prove the fact of lazrness. - 52) Again as pointed out by Ms. Atwine, the finding of guilt and the resultant penalty of dismissal was not based on the count of lazrness alone. In both appeals the appellant was charged with acting in contravention of Regulation 230) of the JSC Regulations. In both appeals the High Court gave considerable attention to that charge and the evidence brought to prove it. They found it satisfactory and in the

first appeal, upheld the penalty for the demotion of the appellant from a Chief Magistrate to that of a Senior Principal Magistrate Grade I, and in the second appeal, the penalty of for his dismissal.

53] Therefore, ground three in respect of the consolidated appeals must also fail.

#### Ground five

### Submission for the appellant on ground five

54] Mr. Akong found fault with the decision of the High Court that the Appellant was a repeat offender. He repeated his earlier submissions that no cogent proof of lazrness was adduced and instead, the JSC relied on conjecture and guesswork, dismissing the need to inspect the physical file in order to confirm when the impugned judgments were actually written. Therefore, that the unproved count of lazrness could not be the basis of the JSC determining that his client was a repeat offender.

## Submission for the respondent on ground live

55J Ms. Arinitwe conversely submitted that in the High Court, the findings of the JSC that there was a prior recommendation (dated 12 December 2OO7), by the Disciplinary Committee, for a severe reprimand arising from a complaint by the Chief Registrar over the appellant's failure to write judgement, were considered. Counsel then drew our attention to Civil Appeal No. 149 of 20 15, currently pending before this Court which arose out of a decision by the JSC in a complaint by Mr. Odongo Lister.

## Subrnissions in reioinder for the appellant on ground five

56] In rejoinder, Mr. Akong repeated that no evidence of previous offences was presented in Court, and that the offence of lazrness and failing to write a judgement were never proved beyond reasonable doubt. Lastly that the judgement of Criminal Case No. 343 of 2OO4 Uganda versus Lister Odongo, was written and put on file.

#### Analvsis and decision on count five

- 571 Accordi.tg to the Black's Law Dictionary3, a repeat offender is a person who has been convicted of a crime more than once. In their d.ecision, the JSC considered the appellant as a repeat offender, and the High Court agreed with that decision. - 581 In both their rulings, the JSC Disciplinary Committee considered what they termed as previous convictions of the same appellant. The JSC mentioned that the two previous cases arose from complaints made by the Chief Registrar against the appellant for failure to write judgments in Lira Chief Magistrate's Court Criminal Cases No. 3312005 and 150 l2OO4. The JSC indicated that for both cases, the JSC had recommended severe reprimands. The JSC in addition quoted the soLrrce of their findings as Minute No. 7 /2OOB(5) dated l?th, February,2OO8. We are prepared to believe that such information was available to the JSC from their own records as prima facie proof of the appellant's previous convictions.

3Bryan A. Garner at page 1186

- 591 That said, we find no merit in the appellant's argument that the Llnproved count of laziness could not be the basis of the JSC determining that his client was a repeat offender. We note that the appellant's counsel made that argument under the mistaken view that it is the conviction on the count of laztness in the two cases, that was considered as previous convictions, which was not the case. According to the record, the facts of the appellant's previous record were available in the Ruling of the Committee. There was thus no reason for the prosecutor to prove to the Commission what was already available in their records. It was clearly stated in the Ruling that it was the sarne Committee that made the recommendations and the cases in respect of which they handled the complaints against the appellant were clearly stated. The appellant was clearly a repeat offender because the complaints that were handled by the Disciplinary Committee, in fact arose from the Chief Magistrate's Court at Lira. The prosecutor was relieved of the duty to prove those previous convictions because the Committee presented that information in their ruling. The JSC as a quasi-judicial body, is entitled to take judicial notice of its previous decisions, including penalties imposed on judicial officers. - 60] We agree that under Section 1 1 of the Judicial Service Commission Act, when conducting its proceedings, the JSC is bound by the rules of natural justice. However, the appellant's previous convictions were not a mere allegation but facts contained in the JSC records. The appellant did not specifically deny those facts or contest them in his appeal to the High Court. His only contention here was that the JSC should have called up and studied both files, to evaluate

the truth or lack of it of his laziness when carrying out his duties as a judicial officer.

611 Accordingly ground five must also fail.

# Ground 6 Submissions for the appellant on ground six

- 62) Citing the decision in Ssekitoleko versus Uganda, lL967l EA 531, Mr. Akong submitted that in criminal matters, the burden of proof does not shift to the accused person, who therefore can only be convicted on the strength of the prosecution case, and not any weakness in their defence. He further invited court to be guided by the above cited legal position in relation to the burden of proof. Mr. Okong was of the view that the JSC primarily relied on the prosecution case, which he considered weak. He in particular referred to failure of the JSC to peruse the court files or duplicate files and their contents, to confirm in particular whether or not there was a judgement on the court record. That instead, they emphasized their belief of explanations furnished to explain that there was a delay. Mr. Okong in addition found fault with the finding of the High Court, without giving reason, that the delays ascribed to the nonattendance of the court by OdonEo, were not plausible. Mr. Okong considered such a finding manifestly wrong in view of the fact that the JSC did not scrutrilze the court file to find out the dates on which the file had been mentioned. - 63] In addition, counsel strongly contested and considered it a serious mistake for the High Court to ignore the acts of the JSC to shift the burden, and lowering the standard of proof. He equally faulted the

High Court's emphasis on what they considered a failure by the appellant to provide a satisfactory explanation for the delays deliverirg the judgments. 1n

# Submissions for the resDqndents on ground six

- 641 Ms. Arinaitwe disagreed. She submitted in response that the appellant was convicted by the JSC because of the weakness in his defence- She continued that when resolving the complaints, the prosecution adduced evidence to show that for Lira Chief Magistrate,s Court Criminal Case No.343 of 2oO4, the appellant had railed to deliver judgment by December,2008 for a case concluded in 2003. That the appellant railed to give a satisfactory explanation to explain the delay and because he admitted to the fact of his delay, there was no need for corroboration. In her view, the onus was on the appellant to show that the judgment was ready, which he tailed to do. - 65J Ms. Arinaitwe continued that the appellant was accorded a fair trial includirg cross-examination of the complainant, and presenting his own evidence in his defence. Therefore, that there was no contravention of the rules of natural justice, or unfair trial as provided in the Constitution. She considered. as correct the conclusion by the High Court that the only logical conclusion flowing from the fact that after nine years, the appellant did not have any information about the case, is that no judgement was ever written or delivered in the case of Nobert Okullo Vs Attorney General. - 661 Ms Arinaitwe emphasized that the prosecution case was not weak but rather, the evidence against the appellant was strong for he could

not produce the judgements from which one of the complaints against him stemmed. In conclusion, counsel invited this Court to find that the first appellate court rightly found that the JSC did not shift the burden of proof or lowered it. She invited the Court to uphold the decision of the High Court.

## Submissions for the apDe llant in reioinder on Eround six.

671 Mr. Okong submitted in rejoinder that the High Court ought to have taken into account that the prosecution at trial, shifted the burden to the appellant to prove his innocence. Further that in the absence of the original or duplicate files in Civil Suit No. 101 of 2OO2 and Criminal Case No. 343 of 2OO4, the appellant's dismissal from service was mostly based on speculation and conjecture.

### Analys is and decision on ground six

68] We have carefully considered the submissions for the appellant and the respondents. The complaint under this ground is that the JSC failed to follow recognrzed principles of criminal law, and during the proceedings, shifted the burden of proof from the prosecution to the appellant. In particular, that the . JSC did not call for evidence from the respective court files to confirm whether judgments had ever been written and instead, believed the evidence given by the prosecutor that writing of the judgments was delayed, without the appellant furnishing good reason for such delays. Conversely it was submitted for the respondent that strong evidence was adduced against the appellant, in a trial that followed due process. That the appellant failed to rebut that evidence due to his weak defence against glaring facts of his offences. - 691 We do appreciate the law and cases provided by Mr. Okong to support his arguments on the burden of proof in criminal cases. In criminal matters, the fundamental principle is that a person may not be convicted of a crime unless the state proves their guilt beyond a reasonable doubt. No burden can be placed on the accused to prove his or her innocence.a In Uganda, the presumption of innocence is confirmed as a Constitutional right in the Bill of Rights.s. Similarly, the settled common law position is that any burden on the defense (insanity excepted) merely requires the defense to produce sufficient evidence raising an issue in relation to proof or disproof of the fact concerned.o The position in civil proceedings is similar. Under Section 101 (1) of the Evidence Act, the one who asserts the existence of certain facts, must prove them. It is only the degree of proof that will differ between civil and criminal proceedings. - 7Ol With respect, Mr. Okong wrongly assumed that proceedings before the JSC follow the strict procedure provided for under our criminal laws. Although the law creating the JSC is silent on that point, the Supreme Court has clarified that the JSC is not a court of law and as such, their proceedings do not culminate into a civil judgm ent7. Similarly, the JSC, which is a disciplinary body, does not sit as a criminal court. For that reason, under Section 8 of the Judicial Service Act, the JSC is empowered to regulate their procedure. It is emphasized that in doing So, they must follow the general principles of law applicable in Uganda, including respect for due process. However,

7AG vs Gladys Nakibuule Kisekka (supra)

aBryan A. Garner; Black's Law Diction; loth Edition Dallas, Texas. Thomas Reuters, 2014. pg. 137g and wootmington vs DPP (1935) UKHC 1 AC 462.

sArticle 28(3Xa)

6Ssekana Musa; Criminal procedure & practice in Uganda; Law Africa; pg.46 para. 5

since hearing of a complaint is commenced by preferring charges, disciptinary proceedings against the appellant took on many of the characteristics of a criminal trial. Even So, disciplinary proceedings cannot be deemed to be a criminal trial because, a public officer can be charged for the same facts in disciplinary proceedings, under criminal law.

- 7ll Therefore, irrespective of the nature of the proceedings, there is no statutory requirement that the JSC must prove their case beyond a reasonable doubt. Under the JSC Complaints Regulationss, it is sufficient that transparent investigations are carried out, the respondent is notified of the charge, and then allowed to prepare and present their defence, including presenting evidence. There is no statutory requirement for the JSC to prove their case beyond reasonable doubt, as would be in criminal matters. Under Regulation 15, a d.ecision will be handed down after hearing both parties, and since the decision must be unanimous or by the majority, it would be safe to say that such a decision would be on a preponderance of evidence. - 721 Having studied both proceedings, we find that to a greater extent, the JSC followed the proper procedLlre and there was no shift of the burden of proof onto the appellant. During the period of investigations, he was invited to file a formal response to the complaint which he did. Once a prima facie case was established, he was given a fair, speedy and transparent hearings. He adduced oral evidence and was allowed to cross examine the complainants. We note that in both proceedings,

8Regulations IO,LL,1.2,13,14 and 15

the appellant admitted that there was a delay to write the judgments. He only offered reasons to explain the delay. Therefore, as submitted for the respondents, once evidence was adduced that the appellant had neglected to deliver judgment for a period of nine and three years respectively, the onus was on him to rebut the allegations, by adducing evidence to show that he had in fact delivered the two judgments within the time stipulated under the Code, or given sound reason (with documentary evidence if possible,) why he has failed to do so. Since it was not a criminal trial, it was for him and not the prosecutor to adduce all evidence to support the latter positions. Should he have considered it important for the contents of the court files to be made part of the record, he should have endeavoured to adduce them, or sought an order of the JSC to that effect. The JSC was under no duty to call for the court files to confirm the truth of the defence, it was for the appellant to bolster his defence with that information.

- 73]1 We note that as a way of showi.rg that the burden of proof was shifted from the JSC to the complainant, Mr. Okong delved into extensive submissions of how the evidence to prove laziness and the appellant's failure to deliver a judgment was received and handled. We have found when resolving ground one and three that the count of laziness was sufficiently proved by the facts related with respect of the other count raised for offending the Code. - 741 Accordingly, we find no merit in ground 6 fails, and it fails.

## Ground 4

# Submissions for the appellant

- 751 Mr. Okong implored this Court to consider the plight of the appellant in view of what he considered a manifestly harsh, excessive, unjust and unfair sentence meted out on him. He contended that the JSC unjustifiably exercised their power of dismissal of a judicial officer to escalate the appellant's sentence. He submitted further that the appellant was not given an opportunity to make any presentation in relation to the several mitigating factors in his favour before the decision of his dismissal was taken. That the JSC merely considered his age and years of service which was in violation of the guarantees under Article 28 of the Constitution on the right to a fair hearing. That unfortunately, the High Court ignored this anomaly and simply maintained the sentences of the JSC which was an incorrect interpretation of the JSC's legal mandate, which is in fact not absolute, but must be exercised in full compliance of guarantees of natural justice, for all persons appearing before it. - 761 In Mr. Okong's view, the appellant who had served as Magistrate for eighteen years and had risen to the rank of Chief Magistrate, had dedicated a substantial part of his life to serving as a career judicial officer, including in areas that were affected by war and political instability. In addition, that he had maintained an exemplary and remarkable lS-year record of justice, and was the sole bread winner for his family. - 771 Mr. Okong concluded by praying that this court finds the sentence meted out upon the appellant as manifestly harsh, excessive

and unjust, He invited this court to show the appellant mercy and reverse the sentences of the JSC which in his view, were erroneously maintained by the High Court.

# Respon dents sUbmissions in ground four

- 7Bl Ms. Arinaitwe disagreed. She submitted that the JSC found that the appellant had delayed to deliver judgement without justification. That their ruling also referred to a previous decision of the JSC Disciplinary Committee that recommended severe reprimand against the appellant. The latter decision stemmirg from a complaint by the Chief Registrar on similar charges of delayed judgments in Lira Chief Magistrate's Court Criminal Case NO. 150 of 2OO4, Uganda versus Odur Richard, and 33 of 2005, Uganda versus Ogwang Peter. In her view, the JSC was justified in their decision to dismiss the appellant from service, and in that decision, they were not bound by recommendations of the JSC Disciplinary committee. - 791 Ms. Arinaitwe recounted that it is the primary duty of the trial Court to sentence after trial. That that duty was properly executed because the charges against the appellant were of a grave nature touching on the principle duty of a judicial officer to preside over cases and deliver judgment. That in circumstances where the appellant tailed to perform his principle duty, it was justified to relieve him of those duties. She in that regard agreed with the finding of the High Court at page 22 paragraph 17, that the appellant being a repeat offender, the decision of his dismissal was appropriate. She concluded that the punishment meted out on the appellant was appropriate in the

circumstances, and that the first appellate court did not err in law by maintaining the punishment of the appellant's dismissal.

# Appellant's submissions in reioinder to the forth ground

8OJ Mr. Okong reiterated the fact that in the dismissal of the appellant, the mitigating factors were totally disregarded by both the JSC and High Court when making and re-evaluating the evidence. That that omission was a violation of the principles of fairness and natural justice. He repeated his prayers, that this Court makes a finding that the High Court erred not taking into consideration the appellants mitigating factors, before his dismissal from service.

# Analvsis and decision on ground four

- 81l The main contest in this ground is that the JSC Disciplinary Committee did not consider any mitigating factors open to the appellant before convicting him and recommending for his dismissal from service. That in the result, JSC meted out a sentence that was manifestly harsh and excessive. - 821 We have noted that in their submissions, both counsel have referred to the decision of the JSC as a "serttence". With respect, that is not correct. We have emphasized in this judgment that the proceedings before the JSC are not criminal in nature and the law does in fact permit the JSC to decide on a preferred procedure when resolving complaints. Such procedure should not, and in practice, does not follow the strict procedures expected in a criminal trial. At the end of any proceedings in a complaint, the Committee or JSC delivers a

decision, with penalties, but not a sentence.q Mitigation of sentence is a creation of statute under Section 108 Trial on Indictments Act. We have seen no corresponding provisions in the laws governirrg disciplinary proceedings of the JSC. It is the duty of the JSC or by mandate its Committee, to hear a complaint under due process and then determine an appropriate penalty. There is no requirement that the JSC must conduct an allocutus. Should either party consider it useful in their case to offer any facts in mitigation or to aggravate the case, they can do so. In this case, such a procedure was not adopted and it has not been shown that the appellant suffered any prejudice as a result.

83] For that reason, ground four fails as well.

I a

84] In conclusion, I find no merit in all the six grounds of appeal. This appeal is accordingly dismissed and each party shall bear their costs.

| DATED at Kampala this -/ day of U' 202s | |-----------------------------------------------------| | \ | | nt'l | | EVA K. LUSWATA | | JUSTICE OF APPEAL |

sSection 10 of the Act and Rules 23 and 31 of the Judicial Service Commission Regulations

# rN T H E.o, J'o=rX=lJ='ot%?t [:fi['^lT KAM

(Coram: ltluzamiru ltlutangula Kbeedi, lrene htlulyagonja & Eva K. Luswata, JJA)

## CONSOLIDATED CIVIL APPEALS NO. 148 OF 2015 & 149 OF 2015

## BETWEEN

MARUK JOSHUA APPELLANT

## AND

## 1. ATTORNEY GENERAL

2. JUDICIAL SERVICE COMMISSION...,r.,.r,r.,...rr..............,.,,......... RESPONDENTS

(Appeals from the Judgments of Elizabeth ltlusoke, Benjamin Kabiito & Yasrn Nyanzi, JJ, delivered in Civil Appeal Nos. 69 of 2013 &70 of 2013 of the High Court of Uganda at Kampala)

## JUDGMENT OF MUZAMIRU MUTANGULA KIBEEDI. JA

I have had the advantage of reading in draft the judgment prepared by my Learned Sister, Hon. Justice Eva K. Luswata, JA. I agree with it.

As Mulyagonja, JA, likewise agrees, the unanimous decision of the court is that Civil Appeal No. 148 of 2015 and 149 of 2015 are dismissed. Each party shall bear their costs on appeal.

Dated at Kampala this d day of 2023

Muzamiru Mutangula Kibeedi JUSTICE OF APPEAL

#### THE REPUBLIC OF UGANDA

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

(Coram: Mutangula Kibeedi, Mulyagonja & Luswata, JJA)

#### CONSOLIDATED CIVIL APPEALS NO. 148 AND 149 OF 2015

#### **BETWEEN**

MARUK JOSHUA ::::::::::::::::::::::::::::::::::::

#### AND

## 1. ATTORNEY GENERAL 2. JUDICIAL SERVICE COMMISSION::::::::::::::::::::::::::::::::::

## (Appeal from the judgments of Musoke and Kabiito, J (as they then were) and Nyanzi, J delivered at Kampala on 16th December 2013 in High Court Civil Appeals No 69 and 70 of 2013)

#### JUDGMENT OF IRENE MULYAGONJA, JA

I have had the benefit of reading in draft the judgment of my sister Eva K. Luswata, JA. I agree that this appeal be dismissed for the reasons she has given and that each party should bear their costs in the appeal.

Dated at Kampala this $14^{\prime}$ day of $\frac{1}{4}$ 2023.

Irene Mulyagonja **JUSTICE OF APPEAL**