Nuwagaba v The Law Council & 2 Others (Miscellaneous Cause 104 of 2021) [2024] UGHCCD 136 (30 August 2024)

## **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT KAMPALA**

#### **CIVIL DIVISION**

#### **MISCELLANEOUS CAUSE NO. 104 OF 2021**

#### **NUWAGABA ALEX SINGAHACHE::::::::::::::::::::::::::::::::::::::APPLICANT**

## **VERSUS**

- **1. THE LAW COUNCIL** - **2. THE DIRECTOR OF PUBLIC PROSECUTIONS** - **3. THE ATTORNEY GENERAL::::::::::::::::::::::::::::::::::::::RESPONDENTS**

#### **BEFORE: HON. JUSTICE SSEKAANA MUSA**

## **RULING**

The applicant brought this application under Rules 3(1) (a) and 3A of the Judicature (Judicial Review Rules) 2019 and Rules 6, 7 and 8 of the Principal rules of 2009 seeking the following orders for judicial relief:

- *(a) Certiorari to quash the decisions of the respondents for being ultra vires and lacking direction and instruction to the applicant.* - *(b)Mandamus to compel the law council to put in place a medium objective envisaged under Sections 8(9) and 8913) of the Advocates (Amendment) Act 2002.* - *(c) Prohibition to forbid the ultra vires acts of the respondents.*

- *(d)A declaration that government officials are not giving effect to the will of parliament.* - *(e) A declaration that the applicant's documents as earned from the Firm Kipleng & Kurgat Advocates C. D. N Plaza, Stadium Road P. O. Box 864-201000, Nakuru as from 21st February 2014, to 29th August 2014, for presentation to the Kenya School of Law and Council for Legal Education of certification to practice in the High Court of Kenya by the Chief Justice and President of the Supreme Court of Kenya, the Chief Registrar Judiciary, satisfy the requirements anticipated by Section 8(8)b(ii) and 8(10) of the Advocates Amendment Act 2002.* - *(f) A declaration that the applicant qualifies for admission to the Ugandan Bar without any further surveillance or further requirements through instruction or surveillance.* - *(g)A declaration that the applicant that the applicant presents his names to the Chief Registrar of the Judiciary of Uganda for entering on the roll of Advocates.* - *(h)A declaration that further surveillance of the applicant without putting into consideration his credentials especially from the firm of Kipleng & Kurgat Advocates is an embarrassment to the applicant, Kenya School of Law, the Council for Legal Education of Kenya, the Judiciary of Kenya, the Law Society of Kenya and an affront to the Spirit of the East African Community.* - *(i) A declaration that the applicant is eligible for admission.*

*(j) A declaration that subsequent to admission to the roll of advocates of Uganda, the applicant be issued with a practicing certificate for year, 2021, on payment of the requisite fees.*

## *(k) Damages*

The application was supported by the affidavit of the applicant and briefly stated that;

- 1. The applicant is a citizen of Uganda and registered as a citizen with a passport No. B0999354 and NIN CM7603410ATF6J. The applicant obtained a law degree from Uganda Pentecostal University and proceeded to Kenya and obtained Bar qualification. - 2. That on 19th March 2020, the applicant applied to the 2nd respondent to be placed under them for work as state attorney for one year for purposes of admission under 8(8)(a) and (b)(ii). On the same day but differently, the applicant applied to the 1st respondent for placement under the office of the 2nd respondent to work as a state attorney for purposes of enrollment under section 8(10)(a) and b(ii). - 3. That on 4th August, 2020, the applicant had received a reply from the 1 st respondent dated 19th March 2020, informing the applicant that the 1 st respondent had at their sitting of 29th July 2020, considered the applicant's request and granted the applicant permission for placement under the Office of Director of Public Prosecution for a period of one year. - 4. That the applicant also made an application to be placed under a law firm upon seeking permission to be placed under a law firm since there

was no response from the ODPP. He received a reply for his placement to Masiko & Co Advocates.

- 5. That while at the said Law Firm the applicant never received any instruction and there was no surveillance being carried out by the law firm or by the 1st respondent. - 6. That the applicant was only serving court process in the law firm which caused him grievous harm when he was attacked as he went to serve court process in Kyaliwajjala-Namugongo where he had gone to serve petitions. - 7. That there is no objective medium and framework within which to continue with the surveillance. The applicant approached the 1st respondent severally for guidance and demanded to know what the advocate will be writing about him as directed by the 1st applicant. - 8. That in absence of a framework within which to proceed with the surveillance, there is no expected output that the applicant will yield at the end of the period set by the respondents. - 9. That in absence of a structured expected output, what the applicant will come out with in the upshot will be the same or not any different from what the applicant gained by understanding in the firm of Kiplenge & Kurgat Advocates served under Job Kiplagat Kurgat, a practicing advocate of the High Court of Kenya of more than 5 years standing who certified that the applicant as a pupil in his Chambers for a period of six months from 21st February, 2014 to 29th August 2014 receiving instructions in proper business, practice and employment of an advocate.

- 10. That the applicant gained through understanding in the following areas; Drafting and Legal Writing; Processes and procedures of courts, registries and tribunals; Client Care; Ethics; Dressing code and Etiquette; Legal research skills, Office Administration; Interpersonal skills; Critical Thinking and upon completion he was recommended to be cleared for admission to the roll of advocates. - 11. That upon completion of pupillage and having passed all Bar Examinations, the Council of Legal Education issued the applicant with a Bar Examinations Transcript in November 2015. On 31st March 2016, the applicant signed the Roll of advocates of Kenya and was admitted to practice as an advocate of the High Court of Kenya. - 12. That upon admission, the applicant took out a practicing certificate for the year 2016 and practiced in the firm of Kuke and Company Advocates in Kisumu. In 2017 & 2018 took out a practicing certificate and worked for two years with a firm of S. M Onyango & Associates. - 13. That the applicant admitted that the aspect of Money was never learned from the firm of Kiplenge & Kurgat and he learnt the same while at S. M Onyango & Associates. While at this law firm the applicant was practicing before the Court of Appeal of Kenya. - 14. That the applicant contends that at this stage, surveillance is not necessary in assessing the applicant's qualifications for admission to the bar in Uganda. He qualifies to be enrolled as an advocate of Uganda without any further surveillance. - 15. That it is in the interest of justice and fairness that the respondents put in place an objective medium within which the applicant is enabled

due consideration to his credentials especially the certificate of Completion of Pupillage and the Confidential Report to the Principal Kenya School of Law if the surveillance must go ahead.

The respondents filed an affidavit in reply sworn by *Professor E. F Ssempebwa,* a Member of the Law Council as well as the Chairperson of the Law Council Committee on Legal Education and Training briefly stated as follows;

- 1. That one of the functions of the Law Council Committee on Legal Education and Training is to prescribe the professional requirements for admission to the post-graduate Bar Course and Qualifications necessary for eligibility for enrolment as an Advocate. - 2. That the applicant sought placement under ODPP and was not successful and later made a placement request to Masiko & Co Advocate. The applicant was required to work under surveillance of and in chambers approved by the Law Council whereupon it was the obligation of the firm in which he was placed to comply with the said provisions of the law. - 3. That in the letter dated 6th November 2020, the law firm in which the applicant was placed was directed by the Law Council to submit a Report of the Applicant's performance every six months, for purposes of assessing the performance of the applicant. - 4. That the applicant's grievances if any, were not formally brought to the attention of the Law Council for the latter to address the same. The Law Council had promptly considered and acted upon the applicant's request entailed in the letter dated 23rd October 2020 addressed to the Law Council.

5. That the 1st respondent acted in accordance with the law which requires him to be placed under surveillance and the respondents always acted in accordance with the law and did not abdicate their duty as alleged or at all.

At the trial, the applicant was self-represented whereas the respondent was represented by *Jackline Amusungut (SA)*. The parties with the guidance of the court framed issues for determination and were also directed to file submissions.

The issues framed were as follows:

- *a) Whether this application is amenable for judicial review?* - *b) Whether or not the decisions of the respondent were unfair and unjust?* - *c) What remedies are available to the applicant?*

# **DETERMINATION OF ISSUES**

# *Whether this application is amenable for judicial review?*

The respondent's counsel challenged this application on the two main grounds of being out of time and failure to exhaust the available remedies.

The respondent submitted that the application was file out of time without an order for extension of time granted by court and contrary to Rule 5(1) of the Judicature (Judicial Review) Rules 2009. The decision of the 1st respondent was made on 29th July 2020 and the decision of the 2nd respondent rejecting the supervision of the applicant was made and communicated on 19th August 2020. Another decision of the 1st respondent was made on 6th November 2020 placing him under M/s Masiko & Company advocates.

The applicant filed this application on 31st March 2021 and last decision having been made on 6th November 2020 which is 4 months which is 4 months before the applicate filed the application. Secondly, the respondent submitted that the applicant never brought his grievances to the attention of the law council for the latter to address the same thus, the application is premature, speculative and an abuse of court process.

That under section 8(4) of the Advocates (amendment) Act No. 27 of 2002, any person aggrieved by the decision of the Law Council on enrolment, may within thirty days from notification of the decision of the law council apply to the High Court for a review.

## *Analysis*

Under Rule 5 (1) of the Judicature (Judicial Review) Rules 2009 provides that; *(1)An application for judicial review shall be made promptly and in any event within three months from the date when the grounds of the application FIRST arose, unless the court considers that there is good reason for extending the period within which the application shall be made.*

The applicant either inadvertently or ignorantly did not seek leave of court to extend the time within which such an application can be brought in a separate application.

In the case of *Uganda Revenue Authority v Uganda Consolidated Properties Ltd CACA 31 of 2000;* The Court of Appeal noted that; Time limits set by statutes are matters of substantive law and not mere technicalities and must be strictly complied with.

In the case of *IP MUGUMYA vs ATTORNEY GENERAL HCMC NO. 116 oF 2015.* The Applicant challenged an interdiction which occurred on 6th July 2011 by an application for judicial review filed on 11th August 2015.

*It is clear from the above that an application for judicial review has to be filed within three months from the date when the grounds of the application first arose unless an application is made for extension of time…the time limits stipulated in the Rules apply and are still good law.*

The court ought not to consider stale claims by persons who have slept on their rights. Any application brought under the Constitution or by way of judicial review could not be entertained if presented after lapse of a period fixed by limitation legislation.

If the applicant wanted to invoke the jurisdiction of this court they should have come at the earliest reasonably possible opportunity or sought leave of the court to file their application out of time but not to file the same as of right after expiry of the time set by law. The court could have exercised its discretion to extend the time depending on the facts to determine whether to extend the time to file for judicial review depending on the reasons on how the delay arose.

Inordinate delay in making an application for judicial review will always be a good ground for refusing to exercise such discretionary jurisdiction of this court to entertain the application. The court refuses relief to an applicant on ground of laches because of several consideration e.g it is not desirable to allow stale claims to be canvassed before the court; there should be finality to litigation.

As a general principle, the time limit of 3 months is reasonable and consistent with the principle of effective judicial protection since such time limits are an application of the principle of legal certainty protecting both individuals and administration. In this case the applicant is challenging the decision of the 1st respondent to refer him to the ODPP's office 29th July 2020 which was rejected and they communicated to him on 19th August 2020. The second decision was made upon his request to be placed before Masiko & Co Advocates on 6th November 2020. The applicant came to court on 31st March 2021 which was after 4 months and therefore outside the 3 months' period.

Public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision-making powers for any longer than is absolutely necessary in fairness to the person affected by the decision. *See O'Reilly v Mackman [1983] 2 AC 237 at 280*

The three-month period within which to bring an application for judicial review must be construed in accordance with the court's jurisprudence, in other words, three months from the date upon which the claimant knew or ought to have known of the alleged infringement. See *R (Berky) v Newport City Council and Others [2012] EWCA Civ 378*

This application would fail on this ground since it was filed outside the time limit of 3 months.

Secondly, the applicant is blamed for failing to exhaust the existing available remedies. The applicant did not formally bring his complaint to the 1st respondent nor did he try to use the existing remedial process set out under the Advocates Act.

Under judicial review a party must satisfy court that they have exhausted the existing remedies available within the public body or under the law itself.

Rule 5 of the **Judicature Judicial Review (Amendment) Rules 2019** which introduces **Rule 7A (1) (b)** is couched in the following terms;

*"The court shall in handling applications 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;"*

**In** *SEWANYANA JIMMY vs KAMPALA INTERNATIONAL UNIVERSITY HCMC NO. 207 OF 2016*. The court dismissing a similar application for failure to exhaust existing remedies within the body held that;

> *Where there exists an alternative remedy through statutory law then it is desirable that such statutory remedy should be pursued first. A court's*

*inherent jurisdiction should not be invoked where there is a specific statutory provision which would meet the necessities of the case. This is the only way institutions and there structures will be strengthened and respected.*

## See also the case of *OKELLO vs KYAMBOGO UNIVERSITY & ANOR (MISCELLANEOUS CAUSE NO.23 OF 2017)*

It is a settled principle that where there is an effective alternative remedy under the statute, the High Court does not exercise its jurisdiction as a selfimposed restriction. But, then, there may be circumstances when the High court may interfere.

The rule of *'Exhaustion of Alternative remedies'* is justified on ground that the remedy provided under the special procedure of judicial review is not intended to supersede the modes of obtaining relief before a civil court or to deny the defences legitimately open in such actions and that persons should not be encouraged to circumvent the provisions made by a statute providing a mechanism and procedure to challenge administrative action taken thereunder. Otherwise, without taking recourse to the alternative remedy available under the law then every person would rush to the high court rendering the provisions almost meaningless and non-existent.

If Parliament has provided an appeals procedure, it is not for the court to usurp the functions of the appellate process. Secondly, the exhaustion of remedies rule is equally intended to reduce the burden placed on the courts and relieves pressure on judicial review jurisdiction without denying the individual of access to the courts.

The applicant rushed to court before lodging any complaint with the 1st respondent which in the courts view was extremely wrong. If he found challenges in surveillance programme at the Masiko & Co. Advocates, it would have been prudent to report the alleged challenges and seek to change or address the challenges, instead of rushing to court without completing the process of surveillance of one year.

This application would fail on this ground also for failure to exhaust the available remedies.

The applicant appears to have subjected himself to the provisions of the law cited in the placement for surveillance upon his own application and now under his submissions he seems to challenge the entire programme or exercise. Which I have deliberately declined to discuss upon determination of the competence of this application. But for completeness, this court observes that there is an available avenue of placing potential advocates under surveillance for one year.

The decision made by the respondent to place the applicant under surveillance for one year was made pursuant to the powers of the 1st respondent as the regulator of advocates enrollment pursuant to the Advocates Act. They were in fact implementing a policy and regulatory framework. In *Council of Civil Service Unions v Minister of Civil Service [1985] AC 374 (HL)* it was held that:

*"It is not for the courts to determine whether a particular policy or particular decisions taken in fulfillment of that policy are fair. They are only concerned with the manner in which those decisions have been taken and the extent of the duty to act fairly will vary greatly from case to case…."*

There is no basis for the applicant to contend that the respondents were unjust and unfair when they decided to place him under surveillance in accordance with the Advocates Act.

In the case of *Maharashtra State Board of Secondary and Higher Secondary Education vs Kumarstheth [1985] LRC* court held that:

*" so long as the body entrusted with the task of framing the rules or regulations acts within the scope of authority conferred on it in the sense that the rules and regulations made by it have a rational nexus with the object and purpose of the statute, the court should not concern itself with the wisdom of the efficaciousness of such rules and regulations. It is exclusively within the* *province of the Legislature and its delegate to determine, as a matter of policy, how the provision of the statute can best be implemented and what measures substantive as well procedural would have to be incorporated in the rules and regulations for the efficacious achievement of the object and purpose of the Act. It is not for court to examine the merits and demerits of such a policy because its scrutiny has to be limited to the question whether the impugned regulations falls within the scope of the regulation-making power conferred on the delegate by statute. The responsible representative entrusted to make bylaws must ordinarily be presumed to know what is necessary, reasonable, just and fair" See R v Council of Legal Education Ex parte Edward Onwong'a Nyakeriga Miscellaneous Application No. 529 of 2016(HCK)*

On that premise, I find that the respondent acted justly and fairly in accordance with the policy guidelines and legal framework regulating the enrollment of advocates in Uganda.

This application accordingly fails. Each party shall bear its own costs.

I so order

*SSEKAANA MUSA JUDGE 30th August 2024*