National Housing & Construction Company Limited v Ambitious Construction Company Limited (Miscellaneous Application 3105 of 2024) [2024] UGCommC 16 (20 February 2024)

Full Case Text

# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

## **COMMERCIAL DIVISION**

# **MISCELLENOUS APPLICATION NO. 3105 OF 2023 2024**

# (ARISING OUT OF MISCELLANEOUS CAUSE NO. 0054 OF 2023)

### **NATIONAL HOUSING & CONSTRUCTION** $10$

**..................................... COMPANY LIMITED**

### **VERSUS**

AMBITIOUS CONSTRUCTION COMPANY LIMITED::::::::::::::::::::::::::::::::::::

### **BEFORE: HON. LADY JUSTICE HARRIET GRACE MAGALA**

# **RULING ON RECUSAL**

# **Background**

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By a letter dated 22nd January 2024, the Applicant, through M/s Kyagaba & Otatiina Advocates brought this application under **The Constitution (Recusal of** Judicial Officers) Practice Directions, 2019. Learned Counsel for the Applicant sought my recusal for reasons he termed as actual and apparent bias in favour of

the law firm of M/s Kaggwa & Kaggwa Advocates and their client, M/s Ambitious $25$ Construction Company Limited as against the law firm of M/s Kyagaba and

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- Otatiina Advocates and their client, National Housing and Construction Company $\mathsf{S}$ Limited. The said letter was copied to M/s Kaggwa and Kaggwa Advocates, who on 23rd January 2024 wrote a letter to M/s Kyagaba and Otatiina Advocates and copied the Registrar, High Court (Commercial Division). - The background to this case as seen from the record is that the $10$ Respondent/Plaintiff filed High Court Civil Suit No. 551 of 2019 against Applicant/ Defendant. The Plaintiff in that case alleged breach of contract against the Defendant for non-payment of money arising from the construction of a housing estate known as Impala Estate in Namungoona. This case was before Hon. Mr. - Justice Richard Wejuli Wabwire who, on the 23rd October 2020 delivered a ruling. $15$ In that ruling, Justice Wabwire stayed the main suit and referred the dispute to arbitration. The parties conducted the arbitration proceedings, and the Arbitrator delivered the Award. - On 15th May 2023, the Respondent filed HCMA No. 42/2023 against the Applicant $20$ for recognition and enforcement of the arbitral award. On the 9th June 2023, the Applicant filed HCMA No. 54/2023 for an order to set aside the arbitral award. On 20th December 2023, this Court dismissed HCMA No. 54/2023 with costs and recognized and enforced the arbitral award. - $25$

On 22nd December 2023, the Applicant filed HCMA No. 3105 of 2023 seeking to review the ruling and orders of the court in HCMC No. 0054/2023. It is this application for review that the Applicant seeks my recusal for the reasons stated in the letter of $22^{nd}$ January 2024.

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#### **Grounds for Recusal** $\mathsf{S}$

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One of the grounds for recusal as stated by the Applicant is bias, which according to the Applicant is constituted in inventing facts and introducing words onto clear provisions of the law to give undue advantage to the Respondent. The Applicant stated that there was nothing on record to justify my findings at page 5 of the ruling that the application was filed out of time. Learned Counsel for Applicant stated that the legal argument on the interpretation of the provision is one thing, the malice and shortchanging the Applicant, which is not bonafide was another.

The other ground for recusal is that the Court must act on an authenticated or certified record of the lower Court or tribunal, otherwise a fraud might be $15$ perpetuated in the Court. That I allegedly violated the Applicant's constitutional rights to have their case determined without being heard. Learned Counsel for the Applicant stated that by refusing to hear their client's case, this enabled M/s Kaggwa and Kaggwa Advocates to perpetuate a fraud in the Court and this was an abuse of the Court process. $20$

Another ground for recusal was that in another arbitration matter, Miscellaneous Cause 2464/2023, M/s Kyagaba & Otatiina Advocates acted for BP Southern Africa (Proprietary) Limited ("BP"), while M/s Kaggwa and Kaggwa Advocates acted for Mogas Uganda Limited. That on the 20th October 2022, during the hearing of an

$25$ interim order before the Registrar, I gave directions to the Registrar to grant the interim order. That the application was disallowed in part with directions that the file be forwarded to me for consideration of the only surviving ground that the Registrar did not consider. That the law firm of M/s Kaggwa and Kaggwa

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Advocates served on the Applicant's law firm a unilaterally extracted Court Order $\mathsf{S}$ falsely stating that the interim order application had been allowed whereas not. That the Applicant's Counsel wrote a letter to the Registrar protesting the false court order and sought for the same to be rectified. That the Court order was amended on 24th October 2023 after it had been served on Rubis Energy Limited and BP. $10$

That the above events damaged the professional and business reputation of the Applicant's lawyers and that this Court's findings in Miscellaneous Cause No. 54/2023 that the application was filed out of time, unwarrantedly exposed the Applicant's lawyers to potential client litigation for professional negligence. That the finding of court in Miscellaneous Cause No. 0054 of 2023 also posed a complication in their relationship with their client and thereby damaging their business.

#### Determination $20$

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I have considered the reasons for recusal as stated in the letter from the Applicant's lawyers, M/s Kyagaba and Otatiina Advocates. I have addressed my mind to all the documents on record including those under Miscellaneous Cause 2464/2023, Mogas Uganda Limited vs BP Southern Africa (Proprietary) Limited (" $BP$ ").

In determining this Application, I will restrict myself to the issue of whether I should recuse myself from hearing HCT-MA 3105/2023 (Arising out of Miscellaneous Cause 54/2023) and all related matters arising out of my decision in

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Miscellaneous Cause No. 0054 of 2023. I will not deal with the merits of the $\mathsf{S}$ application for review despite both Counsel providing details on the merits of the application for review. An application for recusal should be restricted to the issue of recusal only and not any other issues before Court. See **Re: Indian Ocean Hotel** Limited, Commercial Cause No. 2 of 2020.

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In the case of Male H. Mabirizi K. Kiwanuka vs Attorney General, MA No. **89/2022**, Justice Boniface Wamala, while dealing with a similar application for recusal held, and I agree, that an application for recusal of a Judge from a particular matter is not a light matter and is, certainly not one that should be

- made as a routine. A judge and, indeed, every judicial officer takes an oath to do $15$ justice impartially and in accordance with the Constitution, the laws and usages of the Republic of Uganda, without any fear or favour, affection or ill will. This oath has been described as having the effect of raising the judge above an ordinary human being to a higher calling. This calling is something greater than a judge's - personal feelings. Judges must stand to this calling if they are to serve in their $20$ capacities as administrators of justice.

**Rule 7 of the Constitution (Recusal of Judicial Officers) Practice Directions, 2019** provides for recusal of Judicial Officers at the instance of parties as follows:

"Any party to the proceedings may apply to court for a judicial officer to $25$ recuse himself or herself under the following circumstances – a) Where the judicial officer has an interest in the subject matter or has a *relationship with any person who is interested in the matter;*

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b) Where a judicial officer has background information or experience, such $\mathsf{S}$ as the judicial officer's prior work as a lawyer;

c) Where a judicial officer has personal knowledge about the parties or the *facts of the case;*

d) Where a judicial officer has ex parte communications with lawyers or *parties to the case;*

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*e) Where a judicial officer makes inappropriate comments or exhibits unacceptable conduct in the course of the hearing; or*

f) Where a judicial officer has exhibited actual, imputed or apparent bias.

The burden of proof is on the Applicant, who must demonstrate that any of the $15$ circumstances as set out under Rule 7 above exist. In the instant case, none of the above grounds has been established to warrant recusal of myself.

The allegations of bias or unfairness against the Applicant and the law firm of M/s Kyagaba and Otatiina Advocates are false.

A background to the matter before me would indicate that I accorded both parties a fair hearing and granted them sufficient time to present their respective cases until I delivered the ruling on 20th December 2023. On 9th June 2023,

National Housing and Construction Company Limited (the Applicant) filed HCMC $25$ 54/2023 against Ambitious Construction Company Limited, seeking to set aside the arbitral award. On 4th July 2023, M/s Kaggwa & Kaggwa Advocates wrote to the Registrar on behalf of Ambitious Construction Company Limited (the

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Respondent) requesting for a hearing date. I fixed the matter for hearing on 2nd $\mathsf{S}$ October 2023.

On 24th July 2023, M/s Kaggwa and Kaggwa Advocates wrote to the Registrar and prayed for directions in relation to the hearing of HCMC 54/2023. This letter was

- placed before me and on 26th July 2023 and I issued the following directions: $10$ "A hearing date for this matter was already allocated. However, given the time between now and hearing, parties can file written submissions as requested. Applicant should file written submissions by or on 9/08/23. The Respondent to file submissions in reply by or on 23/08/23. The Applicant to file submissions in rejoinder by or on 6/09/23. Submissions should not $15$ exceed 10 pages. If any of the parties has a concern about the directions, - kindly revert to me."

The Applicant did not file their submissions on 9th August 2023 as directed. On 2nd August 2023, the Applicant's lawyers, M/s Kyagaba and Otatiina Advocates wrote $20$ a letter to the Court requesting for an extension of time to file their submissions. The letter in part reads that:

"Reference is made to the Respondent's letter of 24 July 2023 requesting *Court to issue directions. This honourable Court issued schedules to the*

parties. The Applicant is required to file submissions in support of the $25$ application by or on 9 August 2023. However, we are unable to meet the set *timelines because our John Musiime who is counsel in conduct of the matter* has a prearranged journey out of the country on 3 August 2023 and returns on 8 August 2023...we are constrained and humbly request for an extension

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# of time within which to file our submissions in support of our application. $\mathsf{S}$ *We pray for (10) days from 8 August 2023."*

On 11th August 2023, M/s Kaggwa and Kaggwa Advocates wrote a letter on behalf of the Respondent and stated that since the Applicant had not filed their submissions as directed, the Court should issue further directions. On 14th August 2023, I extended time and allowed the Applicant to file their submissions. I noted on ECMISS that, "the request for extension of time is hereby granted." Again, the Applicant did not file their submissions within the requested period of 10 days from the $8^{th}$ August 2023 as stated in their letter of $2^{nd}$ August 2023.

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The Respondent, through M/s Kaggwa and Kaggwa Advocates, wrote a letter dated 28th August 2023 and it stated in part that:

"... On 14th August 2023, the Learned Judge approved the aforementioned extension and the said extension expired on the 25th August 2023. To this

- date however, the Applicant has still failed to comply with the Directions. It $20$ is our prayer that this non-compliance by the Applicant be brought to the attention of the Trial Judge and further pray for further directions in the *aforementioned suit."* - On 28th September 2023, the Respondent filed their submissions and on 2nd $25$ October 2023, both Counsel appeared before me. I actually allowed the Applicant a period of more than a month to file their submissions outside the initial time to ensure that they are accorded a fair hearing. The Respondent filed a rejoinder, 11 days later, on the $17th$ day of October 2023.

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By a letter dated 17th October 2023, the Applicant's lawyers wrote to the registrar a protest letter praying that the Respondent's submissions in rejoinder should be expunged from the Court record since they contravened Order 18 rule 2 of the Civil Procedure Rules. On the 3rd November 2023, the Applicants filed their

submissions in reply to the Respondent's submissions in rejoinder. $10$

By a letter dated 7th November 2023, the Respondent's lawyers wrote to the Registrar and stated that both Counsel had agreed that the Court considers all the submissions on record. An email of the same date was attached to the said letter

from Mr. Musiime John where he stated that: $15$

> "Without prejudice to our letter, and as an applicant is ordinarily entitled to under the provisions of the law that you state in your email, we filed the applicant's rejoinder addressing all the issues in all your submissions. In the circumstances and given that what is more paramount is that the Court

considers all the facts and all the laws and authorities on the controversy so $20$ that it reaches a fully informed and just decision, I would propose that the *Court considers all the material filed and provided by all the parties."*

In a letter dated 7th November 2023, M/s Kaggwa & Kaggwa Advocates wrote to the Registrar and attached an email from Mr. Musiime to Mr. Kaggwa. In the email $25$ dated 7th November 2023, Mr. Musiime stated that:

"... In the circumstances and given that what is more paramount is that the *Court considers all the facts and all laws and authorities on the controversy* so that it reaches a fully informed decision, I would propose that the Court

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- considers all the material filed and provided by all the parties... I hope you $\mathsf{S}$ can kindly agree to my well-considered proposal. If not, we could possibly seek a mention before the presiding Judge to get guidance on the way *forward."* - Mr. Kaggwa wrote in his letter of 7th November 2023 that: $10$

"...we have been in touch with the Applicant's Counsel and a proposal was raised that since what is more paramount is that the Court considers all the facts and all the laws and authorities on the controversy in order to reach a fully informed and just decision, it was proposed by the Applicant's Counsel that the Court considers all the material filed and provided by all the parties. We are on behalf of the Respondent agreeable to the aforementioned proposal by the Applicant's Counsel. We have attached herewith an email thread reflecting our agreement on the matter."

- Since both Counsel agreed that the Court considers all the facts and all the laws $20$ and arguments on the matter, at that point I knew that the submissions had closed, and I proceeded to write the ruling. The ruling was delivered on the 20th December 2023 after considering the evidence, the law and submissions from both Counsel. - $25$

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In **Magil v Porter (2002) 2 AC 357**, which was cited with approval by the East African Court of Justice in **Male H. Mabirizi K. Kiwanuka versus Attorney General** of the Republic of Uganda, Application No. 2 of 2002, the House of Lords stated that the test for recusal of a Judicial Officer is whether a fair minded and informed

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prediagae observer, having considered the facts, would conclude that there was a real $\mathsf{S}$ possibility that the Judge was biased.

Bearing in mind the above background, no fair minded and informed observer, having considered the facts, would conclude that I was biased against the Applicant and or their lawyers. I accorded both parties a fair hearing before I $10$ arrived at my decision. Whereas I dismissed the Applicant's application for having been filed out of time, I did so with a clear mind and based on the law and the evidence that was presented before me at that time. In their Application for review, the Applicant stated that they have discovered new evidence which was not before the Court then and that there was an error on the face of the record. $15$ All this shall be dealt with in determining the Application for review.

The fact that a Court has decided a case against a party, is not a ground for recusal of a Judicial Officer. In the case of Male H. Mabirizi K. Kiwanuka v

- **Attorney General** (supra), Justice Boniface Wamala held, and I agree, that, it is $20$ not true that every time a party loses, even repetitively, before a particular judge, such is a sign of bias. I therefore confirm that I do not have any bias in favour of the Respondent and or their lawyers. - In the case of **Carter Artis case 1981** a decision of the Supreme Court of New $25$ Jersey in United States, which was cited with approval by the Court of Appeal in Meera Investments Limited vs. The Commissioner General, URA, Civil Appeal No. **15 of 2007**, Justice Twinomujuni (RIP) was faced with an application for recusal and the court observed that:

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"...the challenger must adduce proof of the truth of the charges and as to the sufficiency of such proofs the Judge himself must decide. The mere filing of an affidavit of prejudice does not deprive the Judge of the jurisdiction... As to the sufficiency of such proof of disqualification the Judge himself must decide. Not only is a Judge not required to withdraw from the hearing of a case upon a mere suggestion that he is disqualified to sit, but 'it is *improper for him to do so unless the alleged cause of recusation is known* **by him to exist, or is shown by proof to be true in fact.** A mere suggestion that a Court is disqualified to sit is not sufficient and it is in fact improper for him to do so."

I agree with the above case, no evidence has been adduced by the Applicant to prove the alleged actual and or apparent bias. Mere allegations contained in the letter from M/s Kyagaba and Otatiina are not sufficient for me recuse myself. It is

my constitutional duty to deliver justice to all without fear or favor. $20$ I shall therefore not recuse myself from hearing the application for review and all related matters.

The second allegation against me of bias was in respect of Miscellaneous Cause

2464/2023, Mogas Uganda Limited v BP Southern Africa (Proprietary) Limited $25$ ("BP") that I called the Registrar to give her directions is not true. On record is a letter from M/s Kyagaba and Otatiina Advocates dated 19th October 2023 addressed to the Registrar. In part it reads that:

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- "We represent BP Southern Africa (Proprietary) Limited in the above $\mathsf{S}$ *matter... Given the short notice of these instructions, we will appear on the* scheduled date to enable us to receive schedules to file our reply. We pray that this court issues short timelines given the nature of the application. Our client takes a view that lengthy hearing of the interim application will have an economic impact on its business. We pray that this Court issues timelines $10$ - to our Client to file an affidavit in reply and that the application proceeds by way of oral submissions." - From the record of proceedings dated 20th October 2023, counsel for both parties appeared before the Registrar for the hearing of the application for an interim $15$ order. The application was disallowed by the Registrar in part and the file was forwarded to me to handle the rest of the application. By a letter dated 20th October 2023, M/s Kyagaba & Otatiina Advocates wrote to the Registrar that the interim order issued by her had been wrongly extracted by M/s Kaggwa & Kaggwa Advocates. The Application was initially heard by the Registrar and I had no role in $20$ the process of extracting the interim order which Counsel for the Applicant claims caused them professional damage. The Registrar forwarded to me the complaint and I summoned both Counsel to appear before me on 24th October 2023. - On the 24th of October 2023, Mr. Musiime John from M/s Kyagaba and Otatiina $25$ Advocates appeared for BP Southern Africa (Proprietary) Limited and Mr. Kaggwa David from M/s Kaggwa & Kaggwa Advocates appeared for Mogas Uganda Limited. Mr. Musiime had extracted an amended Interim Order which, according to him was the correct version of the order as issued by the Registrar. Mr. Kaggwa

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consented to the Amended Interim Order and I endorsed it in the presence of $\mathsf{S}$ both Counsel.

Based on the letter from the Applicant's lawyers dated 19th October 2023, I was informed by Mr. Musiime that the application was very urgent since it had an economic impact on the business of BP Southern Africa (Proprietary) Limited. I $10$ informed both Counsel that since I had a busy schedule, I suggested to have the matter be heard by another Judge. Both Counsel informed me that the parties were pursuing mediation and that I should fix the matter for mention which I did for the $31^{st}$ October 2023.

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On 31st October 2023, both Counsel appeared before me and the matter was resolved by Consent as indicated in the record of proceedings as follows:

"MISCELLANEOUS APPLICATION NO. 2464 OF 2023: MOGAS UGANDA LIMITED VS BP SOUTHERN AFRICA (PROPRIETARY) LIMITED and $20$ **MISCELLANEOUS CAUSE NO. 0113 OF 2023: MOGAS UGANDA LIMITED VS BP SOUTHERN AFRICA (PROPRIETARY) LIMITED** *Augustine Bwambale – Court Clerk* David Kaggwa – Counsel for the Applicant. John Musiime appearing jointly with Marvin Kushaba – Counsel for the $25$ **Respondent**

**Kaggwa** – My Lord, the Parties have agreed that the claims and proceedings under MA 2462/2023 and MC 0113/2023 be withdrawn and shall not be

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- *reinstated nor prosecuted separately or elsewhere now or in future against* $\mathsf{S}$ the Respondent. That each party shall bear their own costs. **Court-** Mr. Musiime is this the correct position? **Musiime-** Yes, that is the correct position and we thank our colleague for his *cooperation.* - **Court** Both matters/files shall be closed on ECCMIS. Thank you all for your $10$ time and cooperation expended in resolving these matters."

In view of the above, the only orders I entered in MA No. 2464/23 and MC No. 113/2023 were by Consent of both Counsel following a mediation between the

- parties. The Applicant has not demonstrated how the proceedings in the case of $15$ Mogas Uganda Limited v BP Southern Africa (Proprietary) Limited show any bias against the National Housing and Construction Company Limited or the law firm of M/s Kyagaba and Otatiina Advocates. No right-thinking member of society, presented with the facts as stated above, would conclude that I was biased - against the Applicant based on proceedings in a different suit, with different $20$ parties, which was concluded by a Consent Withdraw of the claim. The Applicant's claims are therefore without merit.

The timing of when an application for recusal is made is important. An application for recusal must be raised at the earliest opportunity. A party should not wait until $25$ a decision has been made against them and they raise allegations of bias.

In the case of **Attorney General of the Republic of Kenya vs Prof. Anyang' Nyogo & 10 Others, Application No.5 of 2007**, which was cited with approval in the case

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of Re: Indian Ocean Hotel Limited, Commercial Cause No. 2 of 2020, the Court $\mathsf{S}$ held that:

"From the authorities we have consulted, the prevalent view, with which we agree, is that a litigant seeking disqualification of a judge from sitting on the ground of appearance of bias must raise the objection at the earliest

opportunity. $10$

> The Court of Appeal of Kenya in **Ole Keiwua vs. Chief Justice of Kenya & 6 Others, 2006 KLR**, expressed the same view that:

"We respectfully agree that a litigant who has knowledge of the facts that $15$ give rise to apprehension of possibility of bias ought not to be permitted to keep his objection up the sleeve until he finds out that he has not succeeded. The court must quard against litigants who all too often blame their losses in *court cases to bias on the part of the judge.*

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In Re: Application for Recusal of Hon. Justice Owiny Dollo CJ by Male H. Mabirizi K. Kiwanuka, Miscellaneous Application No. 3 of 2021, the Supreme Court held that:

"The apprehension of bias test is objective and the onus of establishing it $25$ *rests upon the applicant or objector...The person alleging bias must be* reasonable and the apprehension of bias itself must be reasonable in the circumstances of the case. Unfounded or unreasonable apprehension of bias

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## on the part of a judicial officer can never be a justifiable basis for seeking $\mathsf{S}$ *recusal.*"

The proceedings complained of by Counsel for the Applicant before the Registrar took place on 20th October 2023. Both Counsel for the parties appeared before me on the 24th October 2023 to endorse the Amended Interim Order and on the 31st October 2023 to record the settlement of the dispute by way of withdrawal of the Claim. Mr. Musiime did not raise any objection to the proceedings before the Registrar other than the wording of the Interim Order which was corrected by consent of both Counsel.

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- The proceedings that led to the issuance of the Interim Order by the Registrar in $15$ Mogas Uganda Limited v BP had taken place on 20th October 2023. In his email dated 7th November 2023, the Applicant's Counsel, did not raise the issue of bias in connection with the proceedings that had taken place before the Registrar. In contrast, Counsel for the Applicant sought a mention date before me to provide - guidance on the way forward. No mention of bias was raised. In addition, Counsel $20$ for the Applicant proposed that I decide the case based on facts, laws, and authorities on record, which I did. It follows therefore, that this application for recusal, is unfounded, it is an afterthought and was not brought at the earliest opportunity before the Court made its decision. The reasons advanced by Counsel - for the Applicant for my recusal are not reasonable and do not pass the test for $25$ bias or any other ground for recusal of a Judicial Officer.

In Teachers Service Commission v Kenya Union of Teachers & 3 Others, CAK No. **196 of 2015**, the Court held that:

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"An application for recusal must be based on reasonable grounds and $\mathsf{S}$ *foundation rather than hearsay and speculation."*

In the instant application, the Learned Counsel for the Applicant has made unfounded allegations such as malice and short-changing his client, violation of the Applicant's right to be heard, that the Court's findings exposes the Applicant's $10$ lawyers to "potential" client litigation for professional negligence and that it has posed "a complication" in the Applicant's relationship with their lawyers and thereby damaging their business. That the Applicant's lawyers "fear" that their client will not receive a fair hearing. All the reasons stated by Counsel for the Applicant for recusal are not true, are unreasonable and speculative. None of $15$ these allegations are grounds for recusal of a Judicial Officer.

## The Supreme Court in Uganda Polybags Ltd v Development Finance Co Ltd and others [1999] 2 EA 337 stated that:

"All judicial officers take the oath to administer justice to all manner of $20$ people impartially, and without fear, favour, affection or ill will. That oath *must be respected."*

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- For the above reasons therefore, I find that no case has been made by the $\mathsf{S}$ Applicant for me to recuse myself from hearing the matters before me. I am bound by the Judicial Oath. I will apply a clear mind to hear and decide the matters before me impartially, without any fear, favor, affection, or ill will. I shall proceed to hear HCMA No. 3105/2023 and all related matters. This Application - for recusal is hereby dismissed with no order as to costs. $10$

Dated and signed at Kampala this **19**th day of **February 2024.**

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**Harriet Grace MAGALA** $15$ Judge

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Delivered online (ECCMIS) this 20th day of **February 2024.**