Musinguzi v Kagadi District Local Government (Misc Cause 23 of 2024) [2024] UGHC 868 (30 August 2024)

Full Case Text

### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA HOLDEN AT HOIMA

#### MISCELLANEOUS CAUSE NO. 0023 OF 2024 (Formerly Masindi Misc. Cause No. 0041 of 2021)

MUSINGUZI GODFREY::::::::::::::::::::::::::::::::::::

#### **VERSUS**

### KAGADI DISTRICT LOCAL GOVERNMENT:::::::::::::::::::::::::::::::::::

BEFORE: HON. JUSTICE BYARUHANGA JESSE RUGYEMA

# **RULING**

## **Introduction**

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- $[1]$ The Applicant **Musinguzi Godfrey** filed an application under Article 28 & 42 of the 1995 Constitution, Ss. 33, 36, 37 & 38 of the Judicature Act Cap, 13 and Rules 3, 4, 6, 7, & 8 of the (Judicial Review) Rules, SI No. 11 of 2009 as amended for interalia, the following reliefs: - A declaration that the prolonged interdiction beyond the $(a)$ statutory limit of six months by the Respondent acting through the Chief Administration Officer is ultra vires, arbitrary, oppressive, illegal, unconstitutional, irrational, null and void. - An order of certiorari doth issue quashing the decision of $(b)$ the Respondent to keep the Applicant on interdiction beyond six months, orders of mandamus, a permanent injunction and prohibition. - An order to issue directing the Respondent to pay all $(c)$ salary arrears and other incidental employment benefits, loss upon interdiction to date, general damages and punitive damages at Ugx. 40,000,000/= and 70,000,000/= respectively.

Following the filing of the application, the Applicant was $[2]$ reinstated to his former position as Principal Human Resource Officer of the Respondent Local Government and all his salary arrears were fully paid together with the other entitlements.

# **Background**

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- The Applicant was appointed as the Principal Human Resource $[3]$ Officer of the Respondent on 20th day of June 2019 and served as so until 31st March, 2021 when he was interdicted by the Chief Administrative Officer of the Respondent on allegations of fraud and abuse of office. It had been alleged that following a sample roll audit of 15th March, 2021 of the Education Department, it was that discovered $\mathbf{a}$ number $of$ people had been recruited/appointed and accessed the payroll without following proper procedures which was contrary to Public Service Standing Orders and that it amounted to fraud and abuse of office. - Following the interdiction, the Applicant was summoned by the $[4]$ CID Kagadi Police for statement recording with other co-accused persons. The Applicant was later for some time detained in police upon which he secured a police bond on 27th May 2021 as investigations in the case for the abuse office continued. - The Applicant remained on interdiction for a period exceeding 6 $[5]$ months and for that reason, on the $8th$ day of October 2021, wrote to the Chief Administration Officer (CAO) of the Respondent informing him of the illegalities of the prolonged interdiction but to no avail. By letter dated $14/10/2021$ , the Solicitor General also advised the CAO about the said illegalities of the interdiction beyond statutory period but the CAO did not heed. In their meeting held on the $26th$ day of October, 2021, the Respondent District Rewards and Sanctions Committee recommended for the lifting of the Applicant's interdiction but nothing was again done.

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- $[6]$ It was as a result of the totality of the above that the Applicant eventually filed the present application for relief. - In the course of this application, the parties reached a settlement $[7]$ where the Applicant was reinstated to his former position of the Respondent's Human Resource Officer with all his entitlements. At the hearing of the application, the parties addressed court that the Applicant has been reinstated in his former position but the parties failed to agree on the issue of damages. Both counsel of the parties were directed to file their respective submissions on the issue of damages and they accordingly did so.

# **Assessment of damages**

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- $[8]$ Counsel for the Applicant Mr. Kikabi Brian and Mukabire Isaac submitted in brief that the Applicant having been on interdiction for more than 6 months against his protest, advise of the Solicitor General and recommendation of the Respondent District Rewards and Sanctions Committee for the lifting of the Applicant's interdiction, is entitled to both general and punitive damages and costs of the application. - Counsel for the Respondent Mr. Ebila Nathan of the Attorney $[9]$ General's Office on the other hand submitted relying on the authority of Ssekatawe vs A. G & Ors H. C. M. A. No. 293 of 2017 that the Applicant by preferring the mode of commencement of this application by judicial review, he is not entitled to any damages which courts grant discretionary. He argued that the Applicant was in lawful interdiction up to $30th$ September, 2021 and was in illegal interdiction up to 24th November 2021, a period of only 2 months. That if damages are to be awarded, they should be nominal damages, see, Waiglobe (U) Ltd vs Sai Beverages Ltd H. C. C. S. No. 16 of 2017. - [10] It is trite law that damages are presumed to be the direct natural or probable consequences of the act complained of. Under the $\mathbb{R}^n \times \mathbb{R}^n$ $\mathbb{R}^2 \times \mathbb{R}^2 \times \mathbb{R}^2 \times \mathbb{R}^2 \times \mathbb{R}^2 \times \mathbb{R}^2 \times \mathbb{R}^2 \times \mathbb{R}^2$ $\mathbb{L}(\mathbb{R}^n) = \mathbb{R} \quad , \quad \mathbb{L}(\mathbb{R}^n) = \mathbb{L}(\mathbb{R}^n) \quad \mathbb{L}(\mathbb{R}^n) = \mathbb{L}(\mathbb{R}^n) \quad \mathbb{L}(\mathbb{R}^n) = \mathbb{L}(\mathbb{R}^n)$

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Several a tellishing the life of

Judicature (Judicial Review) Rules, 2009, SI.11/2009, Rule 8(1), it is provided thus:

"8 claims for damages

- (1) On an application for judicial review the court may. subject to sub rule (2) award damages to the applicant, if:- - (a) He or she has included in the motion in support of his $\frac{1}{2}$ application a claim of damages arising from any *matter to which he application relates.......*

(2) Rules 1 to 5 of order VI of the Civil Procedure Rules shall be applied to a statement relating to a claim for damages as they apply to a pleading."

- [11] In the instant case, under **Paragraph 1:8** of the application, the Applicant complied with the above provision and included in his pleadings a claim of general and punitive damages of **Ugx**. $40,000,000/=$ and Ugx. 70,000,000/=, respectively for the arbitrary and unconstitutional acts by the Respondent. - [12] Though as was observed in **Ssekatawe vs A. G.(supra)** that ordinarily damages are sought through ordinary suits in civil law actions, they, damages are still a permissible feature under judicial review as per the rules $(r.8(1))$ . I find this case a deserving one for award of damages considering the deliberate malicious conduct of the Respondent CAO towards the Applicant during the subjection of the Applicant on interdiction. - [13] As was held in Oyaro John Owiny vs Kitgum Municipal Council H. C. Misc. Cause No. 7 of 2018,

"interdiction is not a disciplinary sanction but invariably taken as a step pending a disciplinary enquiry and adjudication, as a neutral act, implies no assumption of auilt".

The Respondent in this case was therefore duty bound to carry on interdiction for a specified statutory period not exceeding 6 months, as per Sections F-S (8)(b) of the Uganda Public Service

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Standing Orders 2010, since the Applicant's case was the type that involved police investigations.

- [14] The Respondent C. A. O. ignored the Applicant's pleas about his prolonged interdiction beyond the 6 months. The C. A. O. defied the Solicitor General's advice and the recommendation of the **Rewards** and Respondent **District Sanctions Committee** provided for under the **Uganda Public Service Standing Orders** which is responsible for disciplinary i.e. recommendation of appropriate employee rewards and sanctions to the CAO for implementation. The Respondent only lifted the said interdiction after the Applicant had sought court redress. The above acts of the Applicant the CAO towards amounted to deliberate maladministration and malicious abuse of power with knowledge of the invalidity on his part. In circumstances of such a case, the victim, the Applicant would be entitled to both general and punitive damages. - [15] Punitive damages were defined in **Butterworth vs Butterworth** [1920] $p.126$ thus;

"These kind of damages are clearly punitive or exemplary in nature. The represent a sum of money of a penal nature in addition to the compensatory damages given for the pecuniary or physical and mental suffering.....'

They are awardable to punish, deter, express outrage of court at the defendant's egregious highhanded, malicious, vindictive and/or malicious conduct. oppressional They are also awardable for the improper interference by public officials with the rights of ordinary subjects, see Ahmed Termewy vs Hassan Awdi & 3 ors H. C. C. S. No. 95 of 2012.

[16] In the instant case, the Respondent and counsel admitted to the above facts regarding the malicious conduct of the Respondent CAO thereby implying that the Applicant deserve substantial damages since they have been proved and not nominal damages as counsel for the Respondent put it. Upon considering the totality of the above regarding the conduct of the Respondent's

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CAO towards the Applicant, coupled with the suffering and the mental anguish that was inflicted on the Applicant and his family, I don award him general damages of $Ugx. 8,000,000/=$ (eight million shillings) and Ugx. $4,000,000/$ = (four million shillings) as punitive damages.

- [17] In view of the fact that there is now a subsisting relationship between the parties, i.e. public servant/employer relationship, I do order that each party bear its/his own costs in order to avert any future acrimony between the parties. - [18] Order accordingly.

Dated at Hoima this 30th day of August, 2024.

**Byaruhanga Jesse Rugyema IUDGE**