Mutesi v Attorney General (MISCELLANEOUS CAUSE NO. 241 OF 2016) [2020] UGHCCD 32 (7 February 2020)

Full Case Text

## 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (CIVIL DIVISION) MISCELLANEOUS CAUSE NO.241 OF 2016**

## 10 **PATRICIA MUTESI :::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT VERSUS**

**ATTORNEY GENERAL ::::::::::::::::::::::::::::::::::::::: RESPONDENT**

## *BEFORE: HON. MR. JUSTICE BASHAIJA K. ANDREW* 15 *RULING*

The Applicant brought this application against the Respondent under Section 36 of the Judicature Act (Cap 13); Rules 3, 4, 6, and 7 of the Judicature Act (Judicial Review) Rules, 2009 (SI. No. 11 of 2009); Article 42 of the Constitution; and Section 98 Civil Procedure 20 Act Cap 71; for the following remedies;

- *1. An order to quash the decision to issue an instrument appointing Martin Mwambutsya a Senior State Attorney, as a Commissioner for Civil Litigation (Line Ministries) in the Ministry of Justice and Constitutional Affairs (MOJCA);* - 25 *2. An order of prohibition be issued prohibiting the Public Service Commission (PSC) and the Permanent Secretary,*

- 5 *Ministry of Public Service from effecting and/or implementing the impugned instrument of appointment.* - *3. An order ofcertiorari to quash the decision of Minister of MOJCA made on 16th June 2016 directing the Solicitor General (SG) to assign Mwambutsya a Senior State Attorney* 10 *the duties of Commissioner for Civil Litigation.* - *4. An order of certiorari to quash the decision of the SG made on 17th June 2016 assigning Martin Mwambutsya a Senior State Attorney the duties of a Commissioner for Civil Litigation;* - 15 *5. An order of mandamus to direct the PSC to conduct the recruitment process for the post of Commissioner for Civil Litigation (Line Ministries) in accordance with the Public Service Act and Public Service Standing Orders in force*

## *6. Costs of this application be provided.*

20 The application is supported bythe affidavit sworn by the Applicant, but the salient averments as contained therein are that on 21 st September 2015, the Applicant received an internal circular issued by the then Assistant Commissioner, Human Resources Management (AC/HRM) at the MOJCA, advertising vacant positions

- 5 for Commissioner Civil Litigation (Line Ministries) and Principal State Attorney in the Directorate of Civil Litigation and calling for personal qualifications from qualified staff in the Ministry. The circular also stipulated that in order to qualify for promotion one must have served in his/her immediate position for a minimum of 10 three years. At the time of this advertisement the Applicant had been a Principal State Attorney for five years and therefore qualified for promotion to the position of Commissioner. That she applied for the position of Commissioner for Line Ministries and submitted her application form and all accompanying documents to the HRM - Department on 2 15 nd October 2015.

In December 2015, the Applicant inquired from Mr. Emitu Francis, a senior staff in HRM Department, about the progress of the recruitment process and that he informed her that three Principal State Attorneys namely; Ben Turyasingura, Henry Oluka and the

20 Applicant herself, had applied for the vacant position of Commissioner and that the Ministry had submitted what is known as a formal submission to fill a vacancy to the PSC in respect of the two advertised positions. That whereas the PSC subsequently conducted interviews of the applicants for the other advertised

5 position of PrincipalState Attorney and later two successful candidates were appointed, applicants for the position of Commissioner had never been called for any interviews to date.

That sometime in December 2015, unconfirmed rumor circulated at the Ministry that one Martin Mwambutsya, a Senior State Attorney,

- 10 had been appointed to the said position of Commissioner Civil Litigation. The Applicant immediately set to confirm this information from the HRM Department and she was informed by Mr. Emitu that the Ministry had not been notified of such an appointment by the PSC or the Ministry of Public service. It is the - 15 Applicant's case that that Martin Mwambutsya had never applied for any of the advertised vacancies and theSG had never made any recommendation to PSC for his promotion to the position of Commissioner.

That in March 2016 during the Presidential Election Petition at the

20 Supreme Court,the Applicant was surprised when the Deputy Attorney General introduced Mr. Mwambutsya as a Commissioner for Civil Litigation. Soon thereafter, the Applicant inquired from Mr. Jagenu the Assistant Commissioner HRM about Mwambutsya's

5 reported appointment and he informed her that the Ministry had not been notified of the said appointment as required.

That on 1 st June 2016, the Applicant and one Oluka wrote a Minute to Mr. Francis Atoke the SG, requesting him to direct the Assistant Commissioner HRM to clarify in writing to the management and the 10 applicants on the status of the position of Commissioner Line Ministries and also that the SG informs them of the decision made by PSC or any other office in respect of filling the vacancy.

That on 13 th June 2016, the Applicants received a copy of the Minute from Mr. Jagenu, the AC/HRM in which he informed staff

that on 18 15 th May 2016, the Ministry had received a copy of a letter from H. E the President of Uganda addressed to the Chairman PSC advising the PSC to regularize the appointment of Martin Mwambutsya as Commissioner Civil Litigation (Line Ministries). That the minute was also informing staff vaguely that the Ministry 20 was awaiting formal communication from the PSC. That despite the requests, Mr. Jagenu did not avail to the Applicant documents

That around 20 th June 2016, Mr. Oluka informed theApplicant that he had received a copy of the minute dated 17 th June 2016 written

relating to the said appointment.

- by the SG to Mr. Mwambutsya stating that pursuant to directives of $\mathsf{S}$ H. E the President and MOJCA, the SG was assigning him the duties of a Commissioner for Line Ministries. That she noted that the letter addressed Mr. Mwambutsya as a Senior State Attorney, but stated that his assignment as Commissioner would take immediate effect as MOJCA awaited regularization of his appointment by the PSC. $10$ - The Applicant contends that she is aware that appointments including promotions in the Public Service are made by directives from designated appointing authorities in accordance with the Public Service Standing Orders, and that the appointing authority - for the rank of Commissioner and other superior positions is the $15$ President who is required to issue an instrument upon the advice of the PSC. Further, that PSC is the custodian of such instruments and upon proper issuance of the same, it is required to notify the relevant Ministries and relevant officials through the PS/MPS. - That on 7th September 2016, the Applicant wrote to PSC requesting $20$ to be availed a copy of the instrument appointing Mr. Mwambutsya as Commissioner with a view to seeking legal redress. That on the same day, the Applicant visited the office of the Ag. Secretary to PSC Mr. Musingwire, in order to follow up on her request, who

$\mathbf{6}$

5 acknowledged that the PSC had received Mr. Mwambutsya's instrument which had been issued without a recommendation from PSC. That he, however, declined to avail the Applicant with a copy of the said document in the absence of a court order. That she has made numerous inquiries within the Ministries of Justice and 10 Public Service and established that PSC has not notified the said Ministries of the said instrument to date, and that based on various information that the Applicant has regarding the instrument as enumerated above, there is a decision by the appointing authority to issue an instrument appointing Martin Mwambutsya as 15 Commissioner and she believes the same has not been implemented by the PSC.

That the decision of the appointing authority to issue an instrument appointing Mr. Mwambutsya as Commissioner contravened the Public Service Standing Orders which provide that an officer shall 20 not be recommended for promotion unless he or she has held the substantive position for a minimum period of three years. Further, she was aware that Martin Mwambutsya was promoted to the rank of Senior State Attorney around 2015 and that he lacked the necessary minimum three years' experience at that rank to qualify

5 for promotion to Principal State Attorney and has no experience as principal State Attorney to qualify for promotion to a Commissioner. Further, that the Public Service Standing Orders prohibit the promotion of an officer to more than one step up the ladder or before they complete three years in their substantive grade except 10 in the case of accelerated promotion. That they also provide that an officer may only be recommended for accelerated promotion where

there is no qualified officerfor the position and that there were no circumstances warranting Mr. Mwambutsya accelerated promotion as there were six Principal State Attorneys who qualified for the 15 promotion and that the circular clearly called for applications from Principal State Attorneys and three had applied for the position.

That PSC has a constitutional and statutory duty to advise the appointing authority in respect of appointments of public servants and may determine procedures to test suitability for promotion. 20 That in implementing this duty, PSC calls for applicants in order to determine their competence and suitability forappointment and after conducting the interviews advises or recommends qualified and suitable candidates to the appointing authority for appointment. That Mr. Mwambusya was issued appointment without the PSC 5 conducting any interviews of qualified applicants or recommended as a successful candidate for appointment. That also as one of the qualified applicants for the position of Commissioner, the Applicant had a legitimate expectation to be interviewed bythe PSC with other applicants in order to determine their suitability forthe position 10 which would allow PSC to properly exercise its discretion to recommend the mostqualified applicant to the appointing authority. The procedure adopted leading to the issuance of the instrument appointing Mr. Martin Mwambutsya as Commissioner contravened the rules of natural justice and was manifestly unfair to the 15 qualified applicants for the said position. In addition, that issuing of the instrument has adversely affected the recruitment process and the rights of the Applicant for the said position. That the decision by the Minister and the SG to assign Martin Mwambutsya, a Senior State Attorney, duties of the Commissioner for Line Ministries 20 pending the regularization of his appointment, were made contrary to the Public Standing Orders which require that an officer should not be assigned duties of a higher office when there are more senior officers at a higher level than him/her in the same hierarchy. That the decision of the SG contained in letter dated 17 th June 2016 to

5 assign Martin Mwambutsya a Senior State Attorney, the duties of Commissioner for Civil litigation was made in contravention of the provisions of the Public Service Act and Standing Orders.

That it is in the interest of justice that the impugned decisions of irregularly issuing the instrument appointing Mr. Martin

- 10 Mwambutsya and assigning him the duties of Commissioner be quashed, an order of prohibition be issued prohibiting PSC and the PS/MPS from effecting the impugned instrument, and an order for mandamus be issued directing PSC to conduct the recruitment for the said position in accordance with the Standing Orders. - 15 The Respondent opposed the application and in the affidavit in reply, states that by letter dated 9 th November 2016, the PS/MPS wrote to and notified Mr. Martin Mwambutsya that H. E the President of Uganda had, in exercise of the powers vested in him under Article 172(1)(a) of the Constitution and on advise of the PSC 20 directed that Mr. Martin Mwambutsya be offered appointment as Commissioner CivilLitigation (Line Ministries) with effect from the date of assumption of duty. The Respondent attached a copy of - Martin Mwambutsya wrote accepting the appointment on 11 th

regularization by Public Service marked "A". Further, that Mr.

- November 2016 and that the appointment as Commissioner in $\mathsf{S}$ respect of which he is duly qualified has already been lawfully concluded and implemented in accordance with Article $172(1)(a)$ of the Constitution. The Respondent thus contends that this application is overtaken by events. - Mr. Kabiito Karamagi represented the Applicant and Mr. Geoffrey $10$ Mandette, State Attorney, represented the Respondent. Both filed written submissions to argue the application. It is important to first address the preliminary objections raised by counsel for the Respondent, of which the Respondent gave notice in their reply to - the application that they would raise. $15$

The first one relates to whether the court should rely on the supplementary affidavit in support of the application filled on $4th$ August 2018. Counsel for the Respondent submitted that pleadings in H. C. M. C. No. 241 of 2016 were closed on $27/01/2017$ , and on

4th August 2018 the Applicant filed a further supplementary $20$ affidavit seeking to introduce a new cause of action different from the one in the application after so many futile attempts to amend the same. Counsel drew the attention to H. C. M. A. No. 912 of 2016 and H. C. M. A. No 504 of 2017, and submitted that it is an abuse of

5 court process to seek to introduce a supplementary affidavit in support of an application despite there being decisions of this very court on the same. For that proposition, counsel relied on the cases of *Samuel Mayanja vs. Uganda Rrevenue Authority HCT-0017- 2015* and *Elias Waziri & 2 Others vs. Opportunity Bank (U) Ltd* 10 *HCT-00-CC-MA-599 of 2013.* Further, that the supplementary affidavit was filed more than two years out of time after a reply had been filed and without leave of court and that the same be disregarded.

In reply the counselfor the Applicant submitted that during the 15 course of pleadings, the Applicant's counsel had unsuccessfully sought for the court to allow him apply forleave to validate the supplementary affidavit which was filed after close of pleadings, and that on 25 th June 2019, the court ruled that the Applicant could not apply for leave to validate the filing of the supplementary 20 affidavit because the Respondent had proposed the issue in the scheduling notes and hence the Applicant would instead address the issue in submissions.

Court notes that it is not in dispute that the impugned affidavit was filed way after the close of pleadings and without the leave of court

5 to do so. The Applicant concedes so albeit with attempts to justify the failure. In *Mutembuli Yusuf vs Nagwomu Moses Musamba & Electoral Commission CAEPA No. 43 of 2016,* which was an appeal upholding the decision of this of this court, which same decision was relied on in the case of *Walugembe Daniel vs.* 10 *Attorney General HCMC 231 of 2018,* it was held, inter alia, that

no affidavit in reply or supplementary affidavit can be validly and properly filed in a matter where an affidavit in rejoinder has been filed bythe opposite party and served.

The Applicant having conceded that the impugned affidavit was not

15 validated and no leave of court was sought and also that they do not intend to rely on it, this court finds that the impugned affidavit was filed out of time without leave of court and on that account the affidavit is incompetent and shall notbe relied upon.

The second objection relates to whether the application is 20 competent and properly before court on account of being is moot. Counsel for the Respondent submitted that the entire application is in a state of legal limbo of mootness and is misconceived and untenable for that reason. This fact is also sworn to by the SG in the affidavit in reply. Counsel for the Respondent submitted that

- 5 the Applicant has conceded to this in her submissions at page 8, and that orders 2,3 and 4 sought in the application are now overtaken by events and court ought not to exercise its discretion in vain. Further, that according to the Applicant, what remains in contention are orders 1,5 and 6 soughtin the application. - 10 That in addition, prayer No. 1 which seeks an order to quash the decision to issue an instrument appointing Mr. Martin Mwambustsya a Senior State Attorney as a Commissioner for Civil Litigation (LineMinistries) in the MOJCA is not backed as court has not been favored with the said decision to issue an instrument. - 15 That as such the Applicant has not discharged the burden of providing the decision to issue an instrument. Counsel relied on Sections 101, 202 and 103 of the Evidence Act Cap 6, and argued that there is no way court can inquire into a decision not brought before it and that the Applicant actually concedes that there is no 20 decision before this court on the same. That besides, court already pronounced itself on the issue that the information or documents that the Applicant sought to discover from the PSC is privileged

information.

5 In reply counsel for the Applicant submitted that a party who asserts a fact must prove it unless it is admitted. That under Section 57 of the Evidence Act (supra) facts which are admitted or deemed to be admitted need not be proved otherwise than by such admissions. That the Applicant challenges the decision to appoint 10 Mr. Mwambutsya as Commissioner on various grounds, and that at the time of filling the suit there was available evidence of the decision which was contained in letters from the MOJCA notifying staff of the President's decision to appoint Mr. Mwambutsya as Commissioner *(Annexture PM5 and PM6).* That thereafter, the 15 Respondent filed an affidavit in reply in which the SG stated that the impugned decision to appoint Mr. Mwambutsya had been implemented and lawfully concluded by in the said relevant letters which formalized the appointment. That the reply and its annexed letters in effect admitted to the fact of the President's decision to 20 appoint Mr. Mwambutsya as Commissioner, and the SG also did not rebut the averments that the decision to appoint a Commissioner is made by the President issuing directives which are contained in an instrument of appointment. That where facts are sworn in an affidavit and they are not denied bythe opposite party,

5 the presumption is that such facts are accepted. That since the affidavit in reply acknowledged existence of the President's decision to appoint Mr. Mwambutsya and the fact that such appointments are effected by the instrument of appointment, the Applicant needed not to prove the fact of the said admitted decision by way of 10 providing the instrument ofappointment.

Further, that since the affidavit in reply only averred that the appointment was lawfully concluded, the only issue in dispute between the parties is whether the said appointment was lawful or not. That the Applicant did not need to adduce evidence of decision 15 whose existence was not in dispute between the parties. Further, that the instrument of appointment is in the possession and custody of the PSC which is represented bythe Respondent in this suit. That there is unrebutted evidence on record that PSC admitted having possession of the said instrument and refused to avail the 20 Applicant with the said instrument.

Regarding the issue of departure from pleadings, the Applicant's denied there being any departure. She stated that the application and supporting affidavit clearly show that she challenged both the President's decision to appoint Mr. Mwambutsya and the SG's 5 decision to assign him duties of the said office pending regularization of his appointment, and she sought separate judicial review orders in respect of both decisions. That whereas the implementation of the President's decision to appoint Mr. Mwambutsya rendered the assignment of duties as overtaken by 10 events, it did not affect the other issue in dispute between the parties as to the legality and propriety of the President's decision to appoint Mr. Mwambutsya.

Court has carefully evaluated the evidence and the respective submissions. On the issue on departure from pleadings, the general

- 15 rule is that no person shall depart from their pleadings. Order 6 rule 19 of the Civil Procedure Rules, provides for amendment of pleading as the only way for a party to departfrom pleadings. It was held in *Jani Properties Ltd vs. Dar es Salaam City Council [1966] EA 281* and in *Struggle (U) Ltd vs. Pan African Insurance* - 20 *Company Ltd (1990) KAL 46 –47,* that parties are bound bytheir pleadings which havethe potential of forming part of the record and moreover, the court itself is also bound by whatthe parties have stated in their pleadings as to form facts relied upon by them.

5 Looking at the prayers in the pleadings that the Applicant is seeking as of now, prayer No. 1 seeks for an order to quash the decision to issue an instrument appointing Martin Mwambustsya a Senior State Attorney as a Commissioner for CivilLitigation (Line ministries) in the MOJCA. Prayers No. 2, 3 and 4 were in regard to 10 assignment of duties were abandoned bythe Applicant having been overtaken by events. Therefore, the decision that the Applicant is seeking to quash, specifically in her paragraph 10 of the affidavit, is that **consequently** on 13 th June 2016 theApplicant received a copy of the minute from Mr. Jagenu, the AC/HRM in which he informed staff that on 18 15 th May 2016, that the Ministry had received a copy of a letter of H. E. the President addressed to the Chairman PSC advising to regularize the appointment of Martin Mwambutsya as Commissioner Civil Litigation (Line Ministries). The minute also informed staff, vaguely though, that the Ministry was awaiting 20 formal communication from the PSC. Despite the requests, the Applicant states that Mr. Jagenu did not avail her the documents relating to the said appointment. That around 20 th June 2016 Mr. Oluka informed the Applicant that he had received a copy of the minute dated 17 th June 2016 written by the SG to Mr. Mwambutsya

5 stating that pursuant to directives from H. E the President and the Minister of Justice, he was assigning him the duties of a Commissioner for Line Ministries. Mr. Oluka availed a copy of the minute and the Applicant noted that the letter addressed Mr. Mwambutsya as "Senior State Attorney", but stated that his 10 assignment as Commissioner would take immediate effect as the Ministry awaited regularization of his appointment by the PSC. Minute *Annexture PM5* - a communication informing allstaff that on 18 th May 2016 is a letter was received from State House *Ref. PO/23* dated 11 th may 2016, signed by the H. E the President 15 addressed to the Chairperson PSC, Kampala with a copy to SG, advising the Chairperson of the PSC to regularize the appointment of Mr. Mwambutsya as Commissioner CivilLitigation so as not to create a vacuum in that office. *Annexture PM6* is a letter from the SG assigning Mr. Mwambutsya duties pursuant to H. E's directive 20 and theMinister of Justice directive on the same subject. All these communications referred to by the by the Applicant were before the regularization which she intended to be quashed and prohibited and it is what was referred to in her pleadings and nothing else. To my understanding, the instrument that the Applicant seeks to

- quash is the one from which the other duties that were assigned to $\mathsf{S}$ Mwambutsya accrued. The Applicant also contests the Mr. appointment. However, looking on the record, the letter or instrument referred to in prayer No.1 is not an instrument of appointment. It an instrument advising the Chairperson PSC Kampala, to regularize the appointment of Mr. Martin Mwambutsya $10$ as Commissioner Civil Litigation. A proper interpretation of what the Applicant refers to as an appointment, shows that it is actually an instrument advising and *Annextures PM5 and PM6* respectively, are in reference to the same. - Attached to the affidavit in reply of the Respondent, is *Annexture A*" $15$ the regularization of Mr. Mwambutsya on the post of Commissioner Civil Litigation (Line Ministries) dated 9th November 2016. The acceptance by Mr. Mwambutsya was put in and received on 11thNovember 2016. This could only mean that the instrument referred to in the pleadings that were filed on 13th June 2016 which $20$ the Applicant sought to be quashed; from which the other assigned duties accrue, is the instrument dated 11th May 2016 that had come to her notice, which is invariably overtaken by events having

5 been acted upon already. To that extent the application is moot having been overtaken by events.

*Black's Law Dictionary9 th Edition* page 1090 defines a "moot case"' to mean a matter in which a controversy no longer exists; a case that only presents an abstract question that does not arise from 10 existing facts or rights. See also: *Justice Okumu Wengi vs. Attorney General of Uganda (2007) 600 KaLR* where it was held that for an application and reliefs sought to be moot, it means that the remedies sought cannot be realized. Also in *Human Rights Network for Journalists and Another vs. Uganda* 15 *Communications Commission Others HCMC No. 219 of 2013* court held that courts of law do not decide cases where no live dispute between parties in existence. Courts do not decide cases or issue orders for academic purposes only. Court orders must have practical effects. They cannot issue orders where the issues in 20 dispute have been removed or no longer exist. The instant application is thus an exercise in futility.

As already noted above, the letter sought to be quashed was already acted upon. It was not an appointment at the time but an instrument from the appointing authority advising the Chairman

- 5 PSC. Prayer No.1 was thus over taken by events and granting the same would in the be acting in vain. Prayers 2, 3 and 4 were abandoned by the Applicant on account of being overtaken by events. Prayer 5 and 6 were premised on prayer No.1 and hence also cannot stand. All prayers thus collapse. There is already a 10 substantive holder of the office as the regularization was done. - The determination of the preliminary objections disposes of the entire application. The Respondent's objections are upheld, and the application is hereby dismissed. Given the nature of the currently existing employer - employee relationship between the Applicant 15 and the Respondent, it is ordered that each party bears its own costs.

## *BASHAIJA K. ANDREW JUDGE* 20 *07/02/2020*