Masembe Mustafa and Others v Bukenya Lydia and Others (HCT - 17 - CV- JRC - 003 - 2024) [2024] UGHC 1268 (26 September 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT LUWERO IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW HCT - 17 - CV- JRC - 003 - 2024**

# **1. MASEMBE MUSTAFA**

# **2. SENONO JAMIL**

**3. SEBUNYA RONALD ………….………………..…….… APPLICANTS**

## **VERSUS**

## **1. BUKENYA LYDIA**

# **2. KAWUMA FRANCIS**

**3. WOBULENZI TOWN COUNCIL ……………...………. RESPONDENTS**

# **BEFORE LADY JUSTICE HENRIETTA WOLAYO**

## **RULING**

## Introduction

- 1. By a notice of motion dated 20.02.2024, the applicants moved court under Article 42 of the 1995 Constitution of Uganda, Section 37, 40 and 42 of the Judicature Act Cap 16, Section 98 of the Civil Procedure Act Cap 282 and Rules 6, 7 and 8 of the Judicature (Judicial Review) Rules 2019, for the following reliefs; - a) A declaration that the respondents' decision of eliminating of the applicants from the ballot papers despite being dully nominated was illegal and irrational.

- b) A declaration that the applicants were not accorded a fair hearing before being eliminated from the ballot papers/electoral process. - c) A declaration that the whole electoral process was tainted with illegality. - d) An order of certiorari quashing the entire electoral process as conducted by the third respondent, for the election of Wobulenzi Taxi Drivers and Conductors Association Committee members due to illegality, irrationality and procedural impropriety. - e) An order of mandamus ordering the third respondent to hold timely and fair elections for the leaders of Wobulenzi Taxi Drivers and Conductors Association in strict compliance with the law. - f) Costs of this application be provided for. - 2. The grounds in support of this application are contained in the affidavit of Senono Jamil, the second applicant which is also deposed on behalf of the first and third applicants. - 3. The first respondent Bukenya Lydia, the Town Clerk of Wobulenzi Town Council and the second respondent, Kavuma Francis, the secretary elect of Wobulenzi Taxi drivers and Conductors Association filed their respective affidavits in reply. The third respondent, Wobulenzi Town Council, filed an affidavit in reply deposed by Nakkazi Stella a law enforcement assistant of the respondent body, and two supplementary affidavits in reply deposed by Kazibwe Rajab and Segawa Yasin, both Taxi drivers at Wobulenzi Taxi Park and members

of the Wobulenzi Taxi Drivers and Conductors Association respectively.

4. When the matter came up for hearing on 17.4.2024, I directed the parties to file their written submissions along the following schedules; the applicants to file by 16.5.2024 and the respondents by 17.6.2024 and a rejoinder by 21.6.2024. However, the applicants did not file their written submissions, and only the respondents complied with the directions.

#### Background facts

- 5. The Wobulenzi Taxi Drivers and Conductors Association (herein after referred to as **WTDCA**) subject to its constitution, requested the third respondent to conduct its committee elections between August and November, 2023. The first respondent Bukenya Lydia being an officer of the third respondent, appointed the second respondent Kavuma Francis as a returning officer to organize and conduct the said elections. - 6. The first, second and third applicants( Masembe, Senono, and Sebunya) being members of WTDCA contested for and were duly nominated for the following positions in the said electoral process: Senono Jamir contested for Chairperson, Masembe Mustafa contested for General Secretary and Sebunya Ronald contested for Information and Publicity, respectively.

7. Following their nomination for the said positions, Segawa Yasin, Kyaligamba David, members of the WTDCA filed three complaints challenging the applicants' nomination on grounds the applicants were ineligible for nomination for the following reasons:

> a) Contrary to WTDCA's Constitution, the second applicant Senono (candidate for Chairperson) at the time of his nomination was not managing any Taxi;

> b) The third applicant Sebunya (candidate for Information and Publicity) at the time of his nomination was not managing any Taxi;

> c)The first applicant Masembe (candidate for General Secretary) at the time of his nomination was not in possession of a driving permit of DL Class and as such was not a Taxi driver.

8. Consequently, a meeting was held by the second respondent on 13.10.2023 to hear and determine the said complaints disputing the nominees' eligibility and upon resolution, the applicants (nominees) were disqualified from taking part in the said elections hence this application.

## Issues

- a. Whether the application is amenable to judicial review - b. Whether the applicants were granted a fair hearing prior to being disqualified.

## Resolution

## 9. **Article 42 of the Constitution of Uganda** states that;

*"Any person appearing before any administrative official or body has a right to be treated justly and fairly and shall have a right to apply to a court of law in respect of any administrative decision taken against him or her."*

- 10. The import of the above constitutional provisional is that any person aggrieved by an administrative decision made against him or her, has a right to seek redress from court or may challenge the said decision in court. - 11. It is trite law that the grounds upon which an application for judicial review should base on are illegality, irrationality and procedural impropriety. Therefore, an applicant must prove that the decision or act complained of is illegal, irrational or procedurally improper, for his or her application to succeed. - 12. In **Chief Constable of North Wales Police v Evans [1983] ALL ER 143**, the House of Lords held;

*"Judicial review is intended to protect individuals from abuse of power by authorities both judicial and quasi-judicial but it is not intended to take away from those authorities the powers and discretions properly vested in them by law and to substitute the courts as the bodies making the decisions."*

13. The import of this authority is that the court in reviewing the impugned decisions or acts of suit public bodies must look into the decision making process and ascertain whether the process was lawful, rational and procedurally proper. In the instant case, the applicants complain they were denied a fair hearing by the respondents which means, the subject of scrutiny is whether the applicants were given an opportunity to be heard before they were disqualified.

#### Applicants' case

- 14. The applicants deposed that being members of the Wobulenzi Taxi Drivers and Conductor's Association (herein after WTDCA), they were validly nominated on 2.10.2023 for positions the electoral process organized by the respondents, for committee members of the WTDCA and consequently, the second respondent published the applicants' names on the list of duly nominated candidates on 6.10.2023. - 15. It was the applicants' case that the second and third respondents without reason or explanation but with improper motive, printed the ballot papers without the applicants' names or photos as candidates and the elections proceeded without their participation. The applicants further deposed that they were denied participation in the impugned electoral process without notice or any hearing as required by law and that all their efforts in seeking redress from the respondents were futile.

#### Respondents' case

16. The first respondent, Bukenya Lydia deposed in her affidavit that the applicants' affidavit in support is full of falsehoods and that WTDCA is non-existent and as such, the applicants cannot claim membership to a non-existent entity. And that she had never organised nor conducted the impugned election of committee members of the Wobulenzi Taxi Drivers and Conductor's Association.

- 17. The second respondent, Kavuma Francis deposed that he was appointed by the third respondent to preside over the impugned elections between August to November 2023. And that he organized and conducted the impugned elections wherein he nominated the applicants among other candidates in the WTDCA's elections. - 18. He further deposed that following complaints/petitions filed by some members of WTDCA against the applicants' candidature, the applicants were disqualified from the elections in a meeting dated 13.10.2023 on grounds that there were not eligible to contest for those specific positions as per the WTDCA's constitution. - 19. The third respondent through Nakkazi Stella deposed that the applicants were properly and legally disqualified from the impugned electoral process for having failed to meet the requirements stipulated in WTDCA's constitution marked annexure "B". And that a meeting was held on 13.10.2023 wherein the complaints filed against the applicants were determined fairly in their presence and they were given a right to be heard as shown in the Minutes for the said meeting marked "C". And that the electoral process adhered to the constitution of WTDCA and a new committee has since been sworn in. - 20. The third respondent further filed two supplementary affidavits, deposed by Kazibwe Rajab and Segawa Yasin in which it was stated that the first applicant Masembe, was disqualified for not possessing a driving permit of DL Class at the time of his nomination and that the second applicant Senono, was disqualified for not being an active Taxi operator for the past five years and that the third applicant Sebunya, was disqualified for not managing any Taxi at the time of his nomination. - 21. It was the submission of counsel for the first and second respondents that the applicants have no locus standi to bring this application since they are not members of WTDCA. - 22. Counsel further submitted that the applicants' affidavit in support is incurably defective and it contains falsehoods and as such, it should be struck off. And that the applicants never exhausted administrative remedies prior to filing this application.

Whether the application is amenable to judicial review

- 23. **Rule 7A of the Judicature (Judicial Review) (Amendment) Rules 2019,** states; - (1) The court shall, in considering an application for judicial review, satisfy itself of the following – - (a) That the application is amenable for judicial review;

- (b) That the aggrieved person has exhausted the existing remedies available within the public body or under the law; and - (c) That the matter involves an administrative public body or official. - (2) The court shall grant an order for judicial review where it is satisfied that the decision making body or officer did not follow due process in reaching a decision and that, as a result, there was unfair and unjust treatment. - 24. **Rule 3 of the Judicature (Judicial Review) (Amendment) Rules 2019** defines a "Public body" to include a District Administration, a District Council, any district committee of a district council, a local council and any committee of a local council. As Wobulenzi Town Council is a local council under the Local Government Act Cap…, with Town Clerk of the Council and Returning Officer of the Council as its officials, their decisions are subject to judicial review. - 25. The application seeks to challenge an administrative action and decision by the second respondent, appointed by the first and third respondent as an elections returning officer, for disqualifying the applicants from the impugned electoral process irrationally and without following the right procedure. - 26. The **constitution of WTDCA under Article 6(iii)** states that elections shall be conducted by a delegated person from the office of the town clerk.

- 27. The third respondent is a public body which took charge of the impugned electoral process on behalf of the Wobulenzi Taxi Drivers and Conductor's Association. The second respondent was appointed by the first and third respondent following a recommendation from WTDCA's to supervise the impugned electoral process as evidenced by a copy of the appointment letter annexed to his affidavit in reply marked "A". - 28. Furthermore, on the issue of exhaustion of available remedies, it is noteworthy that the constitution of WTDCA annexed to the third respondent's affidavit in reply marked "B", does not provide redress for a disqualified nominee who is aggrieved by the decision of the returning officer. As such, the applicants cannot be penalised for not exhausting non – existent remedies prior to coming to court. - 29. Therefore, I find that this application is amenable to judicial review owing to the fact that the decision to disqualify the applicants from the impugned electoral process was undertaken by a public official who was charged with a mandate from Wobulenzi Town Council to preside over the said elections.

Whether the second and third respondent adhered to the rules of natural justice prior to disqualifying the applicants from the electoral process

30. The rules of natural justice dictate that a party appearing before a tribunal or administrative body be treated fairly and be accorded the right to be heard.

- 31. The second respondent presided over committee elections of the WTDCA wherein the applicants contested for various positions. Following the applicants' nominations for the said positions, three complaints as annexed to the second respondent's affidavit in reply marked "D", were filed challenging the applicants' nomination and eligibility for the said positions. The second respondent then called for a meeting on 13.10.2023 wherein these complaints were handled and the applicants were given a chance to be heard as evidenced in the minutes of the said meeting annexed to third respondent's affidavit in reply and marked annexure "C". - 32. The applicants were therefore disqualified from the electoral process on the basis of **Article 6 of the constitution of WTDCA** which inter alia states that; - **v.** Any person desirous of any post should be fully active in taxi driving for the past five years. - **vi.** Anyone eligible for the post of any executive post shall be; - **a)** A permanent resident of Wobulenzi Town Council and Katikamu sub county - **b)** Must have been in Taxi business for the last five years driving a taxi - **c)** Holding a valid D1 Class of a driving permit - 33. I have examined the evidence adduced by both sides and I find that the applicants were not disqualified from the impugned electoral process without notice or reason as they allege in their affidavit in support. The

minutes of the meeting dated 13.10.2023 which was held to determine the complaints made against the applicants, indicate that the first, second and third applicants (nominees) were given an opportunity to be heard prior to their disqualification.

- 34. Furthermore, the attendance list annexed to the said minutes bears the names, phone numbers and signatures of the first, second and third applicants as attendees of the said meeting. Therefore, the applicants' averments in paragraphs 7, 8 and 9 of their affidavit in support are treated as falsehoods. - 35. It is noteworthy that during the said meeting, the nominees(applicants) presented their defences in response to the complaints raised, as follows; - It was Masembe Mustafa's defence that while he did not have a DL class driving permit, he had applied for it, passed the test and that he had got a recommendation from the IOV to that effect. - It was Sebunya Ronald's defence that he had been in the taxi business for many years. - Senono Jamil stated in his defence that in as much he had not owned or managed any taxi in the last five years as alleged, he possessed a driving permit and had been in the taxi business for a number of years. - 36. In light of the foregoing analysis, it is clear that the first, second and third applicants were accorded an opportunity to be heard and they were indeed heard prior to the decision disqualifying them from vying

for elective positions. Moreover, the decision was based on the Constitution of WTDCA under which the elections were held.

37. In the premises, I find that the second respondent's decision to disqualify the applicants from the impugned elections on the grounds of ineligibility was not tainted with any illegality, irrationality nor procedural impropriety and as such, the impugned decision did not violate the rules and principles of natural justice. This application is hereby dismissed with costs to the respondents.

## **DATED AT LUWERO THIS 26TH SEPTEMBER 2024. \_\_\_\_\_\_\_\_\_\_\_\_\_\_ LADY JUSTICE HENRIETTA WOLAYO**

## **Legal Representation**

- M/s Wetaka, Bukenya & Kizito Advocates for the Applicants - M/s Richard Kabazzi & Partners Advocates for the first and second Respondent - Nakkazi Stella Law Enforcement Assistant for the third Respondent