Mutesi Aminah v Jinja City, Lorika Moses, Town Clerk Jinja City, Inspectorate General of Government, & Attorney General (Miscellaneous Cause 38 of 2022) [2023] UGHC 229 (24 February 2023)

### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA HOLDEN AT JINJA

# **MISCELLANEOUS CAUSE NO. 038 OF 2022**

# IN THE MATTER OF ARTICLE 42 OF THE CONSTITUTION OF THE **REPUBLIC OF UGANDA 1995**

#### AND

# IN THE MATTER OF SECTIONS 33, 36 AND 38 OF THE **JUDICATURE ACT CAP 13**

#### AND

# IN THE MATTER OF AN APPLICATION BY MUTESI AMINAH FOR JUDICIAL REVIEW FOR AN ORDER OF CERTIORI, PROHIBITION **AND MANDUMUS.**

MUTESI AMINAH::::::::::::::::::::::::::::::::::::

#### **VERSUS**

1. JINJA CITY

2. LORIKA MOSES, TOWN CLERK JINJA CITY

3. INSPECTORATE GENERAL OF GOVERNMENT

4. ATTORNEY GENERAL ::::::::::::::::::::::::::::::::::::

# BEFORE JUSTICE FARIDAH SHAMILAH BUKIRWA

## **RULING**

## **Background**

This Application is brought under the provisions of Sections 33, 36 and 38(1) of the Judicature Act, Rules 1A (a), (b), 3, 3A(1) & (2), 6, 7A and 8 of the Judicature(Judicial Review) Rules 2019 as amended for orders of Certiorari to quash and declare as illegal, unconstitutional, ultra-vires, null and void the intended interdiction of the Applicant, Mandamus compelling the Respondents not to interdict the Applicant, injunction restraining the Respondents from barring the Applicant to access her office, prohibition barring the Respondents, its agents, servants or any person from interdicting, victimising, dismissing or otherwise penalising the Applicant without just cause, compensation in damages to the Applicant for inconveniences caused and costs of the Application.

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## **Brief facts**

The Applicant is a Senior Inspector of Schools in Jinja City who was threatened with interdiction by the Respondents without any criminal offences committed. The Applicant contends that the letter which was written to the 2<sup>nd</sup> Respondent by the 3<sup>rd</sup> Respondent communicating her interdiction was done without any investigations being carried out by the Respondents thereby violating her Constitutional right to a fair hearing and the principles of natural justice. That the 3<sup>rd</sup> Respondent authorised the interdiction without opening any criminal file in respect of the Applicant.

The Applicant contends that she was illegally, irrationally and unreasonably interdicted by the Respondents without following the procedure laid out in the Public Standing Orders. She argues that it is in the interest of justice that the interdiction is lifted.

Court observed that the Applicant was uncertain as to whether the cause of action she sought to challenge was the intended interdiction, threatened interdiction or *interdiction* itself since the terms were used interchangeably in the Application. This interchangeable use of terms generated some degree of confusion and to some degree stifled comprehension as to what exactly the Applicant was referring to. Counsel for the Applicant is encouraged to ensure clarity when drafting pleadings.

Be as it may and in the interest of justice, Court thoroughly perused its record and found an interdiction letter addressed to the Applicant. In this ruling, Court considered the Applicant to have been interdicted.

## Representation

The Applicant was represented by Counsel Mangeni Ivan Geoffrey of Mangeni Law Chambers & Co. Advocates. Counsel Hasfah Nabbale & Mugala Mary represented the 3<sup>rd</sup> Respondent. Counsel Joshua Sengendo represented the 1<sup>st</sup>, 2<sup>nd</sup> and 4<sup>th</sup> Respondents.

When the matter came up for hearing, the Parties were directed to file written submissions which submissions have been considered in this ruling.

## **Submissions**

Counsel for the Applicant submitted that the decision to interdict the Applicant was unfair because the Applicant was never accorded any oral, verbal and final written warning letter before her suspension as provided under Section F-S (4) of Uganda Public Standing Orders of 2021 hence there was procedural impropriety committed by the Respondents. Counsel further submitted that the Respondents

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committed an illegality because since they failed to follow the law and he relied on Thugitho Vs Nebbi Municipal Council HCMA No. 0015 of 2017. Counsel further submitted that the Respondents acted irrationally because they were required under the law to give a verbal, formal and handwritten warning before interdicting the Applicant and for this notion, Counsel referred to the case of Johnas Tweyambe & Anor Vs Attorney General & Anor Misc. Cause No. 395 of 2019.

Applicant's Counsel argued that the entire process leading to the intended interdiction and interdiction of the Applicant was conducted without according the Applicant a fair hearing, in total violation of Article 44(c) of the Constitution of the Republic of Uganda. Counsel relied on the case of Ojangule Patricia and 4 Ors Vs. Attorney General HCMC No.303 of 2013.

The Applicant in her submissions stated that although the Public Service Standing Orders of 2010 provide for instances of gross misconduct under Section F-S (8), the same do not indicate procedures to be followed before interdiction.

The Court did not consider the Affidavit in Reply and written submissions of the $1<sup>st</sup>$ , $2<sup>nd</sup>$ and $4<sup>th</sup>$ Respondents as the same were filed in non-compliance with the Court's directions. Although an explanation was made in respect of the late filing, no leave was sought by the Respondents to file these documents outside the time stipulated by Court.

Counsel for the 3<sup>rd</sup> Respondent submitted that the 3<sup>rd</sup> Respondent is empowered under Articles 225, 226, 230 and Sect 14 (5) and (6) of the Inspectorate of Government Act 2002 to investigate or cause investigations into allegations of corruption and abuse of office by public officers and to make such orders as are necessary in the course of their duties or findings. That the 3<sup>rd</sup> Respondent's directive to the Town Clerk to interdict the Applicant was within its mandate and jurisdiction. Counsel cited the case of Wanyaka Samuel vs Attorney General HCMC No. 59/2014.

Counsel further submitted that interdiction was a temporary measure to pave way for investigations and was not a final decision amenable to judicial review. Counsel referred to the case of His Worship Aggrey Bwire vs Attorney General & Anor SCCA No. 8 of 2010 and Isabirye Charles Vs Alex Kakooza & 2 Others HCMA No. 186/2020. On the Applicant's claim that the 3<sup>rd</sup> Respondent had no investigation file against her, Counsel submitted that Section 20(I) of the Inspectorate of Government Act 2002 gives the 3<sup>rd</sup> Respondent discretion to choose its appropriate mode of procedure of investigations in the circumstances

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of each case. As such, the 3<sup>rd</sup> Respondent is not mandated to open an investigation file for each and every inquiry it conducts.

Counsel for the 3<sup>rd</sup> Respondent contended that the Affidavit in Support of the Application is fatally defective since the documents attached thereto were neither marked nor annexed and should therefore be struck off. Counsel relied on Section 7 (2) and Rule 8 of the Schedule to the Commissioner for Oaths (Advocates) Act which states that all exhibits to affidavits shall be securely sealed to the affidavits under seal of the Commissioner and shall be marked with serial letters of identification. Counsel supported this argument by relying on the case of Mukesh Babubhai Shukla Vs. Electoral Commission and Anor, HCMA No. 340/2021 in which case Court held that "...... Rule 8 is couched in mandatory terms and the sealing of annexures to an affidavit was a legal requirement which inter alia facilitates the identification of documents and must be adhered to in spite of Article 126 (2)(e) of the Constitution." That in the instant Application none of the documents attached to the Affidavit in Support of the application were annexed nor marked for identification yet the same was a mandatory requirement.

The Applicant's submissions in rejoinder were disregarded since the same were not signed by Counsel for the Applicant.

## Issues.

- 1. Whether the application is amenable to judicial review. - 2. Whether the Application is fatally defective. - 3. What remedies are available to the parties.

#### **Analysis**

I will resolve the issues in their order as raised above.

# 1. Whether the application is amenable to judicial review.

Judicial review means the process by which the High Court exercises its supervisory jurisdiction over the proceedings and decisions of the subordinate courts, tribunals and other bodies or persons who are charged with the performance of public acts and duties as stipulated under Rule 3 of the Judicature (Judicial Review) Amendment Rules 2019 as amended.

Judicial review involves the assessment of the manner in which the decision is made. See Editors Guild Uganda Limited & Anor Vs Attorney General HCMC No. 40 of 2020.

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From the foregoing it is evident that judicial review is concerned with the manner in which a decision is made. This goes without saying that before we think of judicial review, there must be a decision.

In the instant matter, the Applicant was interdicted. The question which arises is whether interdiction amounts to a decision to warrant judicial review.

To answer that, we need to first understand the meaning of interdiction.

According to the Uganda Public Service Standing Orders 2021 Edition, interdiction is defined under F-s paragraph 14 as the temporary removal of a public officer from exercising his or her duties while an investigation over a *particular matter is being carried out.*

In Oyaro John Owiny Vs Kitgum Municipal Council HCMC No. 0007 of 2018, it was observed that interdiction is a neutral act and implies no assumption of guilt but is simply the first step taken before a disciplinary enquiry and adjudication. The only considerations that satisfy the requirements of fairness in a decision to interdict are;

- a) a public officer's involvement or suspected involvement or attempted involvement in the commission of a criminal offence or serious misconduct. - *b) Reasonable grounds for believing that the public officer's interdiction is* necessary in the public interest, for example when it is believed that a public officer who is suspected to have committed serious misconduct may interfere with the employer's investigation or tamper with evidence.

Therefore, at the stage of interdiction, no finding that attributes misconduct has been made. Interdiction is based on preliminary investigations conducted by the employer and is the initial stage of the disciplinary process. An officer on interdiction remains innocent until proved otherwise. In addition, such an officer has a legitimate expectation that he or she will be given an opportunity to respond to any adverse findings arising out of the preliminary investigations conducted by the employer.

In the case at hand, the Applicant's interdiction letter which is Annexure "A" of 3<sup>rd</sup> Respondent's Affidavit in Reply clearly states that "The Inspectorate of Government together with State House Anti- Corruption Unit and Criminal Investigations Directorate are conducting investigations into cases regarding abuse of office, and diversion of public funds. It is alleged that you irregularly directed for payments to be made to a private association using UPE grants." The Applicant is suspected of misconduct which in my opinion is enough and

VAL<br>MARIENT. BAS

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basing on the Oyaro case (supra) satisfied the requirements of fairness to interdict the Applicant.

The Applicant's Counsel submitted that the decision to interdict the Applicant was unfair because the Applicant was never accorded any oral, verbal and final written warning letter before her interdiction.

I am hesitant to believe Counsel's argument for two reasons. One, as earlier noted, interdiction is simply a step in the disciplinary process thus at the stage of interdiction, there is no decision to be subjected to judicial review. On that ground alone, I find that the application is not amenable to judicial review.

On the interdiction being unfair and irrational on grounds that the Applicant was never accorded any oral, verbal and final written warning letter. Counsel for the Applicant relied on the case of Thugitho Vs Nebbi Municipal Council HCMA No. 0015 of 2017. However, it is my opinion that the case is distinguishable from the instant case. In Thugitho (supra), the Respondent characterised its decision as one that only required the Applicant who was the Town Clerk to remain out of office until he recovers the specified sum of money. However, the declaration made by the Speaker in his closing remarks at the meeting that arrived at this decision was that the office of the Town Clerk was declared vacant as a result of the resolution. This decision intended to and indeed had the effect of removing the Applicant from office hence making the decision *final* in nature. (*Emphasis mine)*. The Respondent did not have the authority to make such decision. However, in the present case, the Applicant has been interdicted as investigations are ongoing and as such, her interdiction does not qualify as a final decision.

The case of Ojangule Patricia and 4 Ors Vs, Attorney General HCMC N0.303 of 2013 relied on by the Applicant is also distinguishable from the instant case. In Ojangule (supra), the Applicants were suspended from their employment after investigations had been completed. Suspension was held by Court to be a final decision that the Applicants should have been accorded the right to a fair hearing before being suspended. This authority does not in away support the Applicant's case since the allegations against her are still under investigation and a final decision is yet to be made.

It is therefore my finding that at the stage of interdiction, the Applicant's right to be heard had not yet materialised. The right to be heard is only applicable after investigations and once the formal disciplinary process is sanctioned. The Applicant's worries are far-fetched as it is expressly mentioned in the interdiction letter from the Town Clerk to the Applicant dated 19<sup>th</sup> September, 2022 that "you are required to submit a written defence on the above allegations within fourteen

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*days from the date of this letter*" which is an indicator that the Applicant will be accorded a fair hearing and until then, there is nothing to cause an alarm. I thus uphold the 3<sup>rd</sup> Respondent's preliminary objection that the Application is misconceived, raises no grounds amenable to judicial review and should be struck out.

Since this Court finds that interdiction is a temporary or interim measure, the Applicant's averments in the Application that the said interdiction is illegal. unconstitutional, ultra vires, irrational and procedurally wrong are devoid of merit

I therefore find that this application is not amenable to judicial review and dismiss it accordingly. Each party to bear its own costs.

Since the first issue is answered in the negative, the second issue collapses.

I so order.

**Justice Faridah Shamilah Bukirwa** Delivered on 24<sup>th</sup> February, 2023.