Odongo & 8 Others v Kole District Local Government Council & Another (Miscellaneous Cause 22 of 2021) [2021] UGHC 67 (2 June 2021)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT LIRA MISC. CAUSE NO.22 OF 2021 HON. ODONGO GIBERT & 8 OTHERS::::::::::::::::::::APPLICANTS VERSUS 1. KOLE DISTRICT LOCAL GOVERNMENT COUNCIL 2. HON. ANGOR MOSES ONGOM, SPEAKER KOLE DISTRICT COUNCIL:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENTS**

### **BEFORE HON: JUSTICE ISAAC MUWATA**

#### **RULING**

This is an application for judicial review under section 14,33 and 36 of the Judicature Act Cap 13, sections 6,9(1),10,11(1),12,13,16,17,18,19,22,28,30,54,56,57,58,62,63 and 175 of the Local Government Act (Cap 243) as amended, the standard rules of procedure for local government councils (July 2014 edition), rules 2,3A,7A, and 7B of the Judicature review rules.

The applicants sought for mandamus orders to compel, command and order the 1st respondent's Chief Administrative Officer and the 2nd respondent to submit the names and respective files of those nominees recommended by council to the Public Service Commission for considerations of their appointments to the 1st respondents District Service Commission, an order of mandamus issues to compel, command and order the 2 nd respondent fulfill his statutory obligation and schedule a main council meeting for laying of the 1st respondents draft budget 2021/2022 immediately for the current council to complete the process of passing it before May 31,2021 ,an order for compensation for violating the applicants rights of exercising mandates as required by law, ridiculing, lowering the image of applicants before their electorates when they lawfully protested and walked out, delay to district internal promotions and external recruitments, suffering, anguish and inconveniences suffered by the applicants' in form of general damages of shs.20 million each and punitive damages in the sum of 5 million each, they also prayed for costs to be provided for.

The application was supported by the affidavits of the nine applicants which shall be relied on when determining this matter. The application was also opposed by the affidavit of the 2nd respondent. The applicants filed their written submissions in respect of this matter and the respondents didn't but nevertheless I will proceed to deal with this matter.

While at the hearing the Counsel Oyugi Onono Quirinus was for the applicants and the respondents were not represented.

## **Issues**

- **1. Whether the application raises issues for judicial review?** - **2. Whether the decision by the 2nd respondent rejecting nominations by the district executive committee and unanimous council decision of 31st March ,2021 recommending submissions of names of new persons and re- appointments of the 1st respondents District Service Commission to Public Service Commission was illegal, irrational and procedurally improper?** - **3. What remedies are available to the parties?**

## **Resolution**

## **Whether the application raises issues for judicial review**

Counsel for the applicants submitted that judicial review is an arm of administrative law which involves an assessment of the manner in which a decision is made, he further submitted that judicial review is not an appeal and jurisdiction is exercised in a supervisory manner to ensure that public power is exercised in accordance with the basic standards of legality, procedural fairness and rationality. He submitted a plethora of authorities to which am grateful. I will proceed to resolve this issue.

Rule 3 of the Judicature (Judicial Review) (Amendment) Rules, 2019 defines **Judicial Review as the process by which the High Court exercises its supervisory jurisdiction over the proceedings and decisions of subordinate courts, tribunals and other bodies or persons who carry out quasi - judicial functions or who are charged with the performance of public acts and duties**.

The purpose of judicial review therefore is to ensure that the individual is given fair treatment by the authority to which he or she is subjected to.

A public body within the meaning of **Rule 2 (a) of the Judicature (Judicial Review) (Amendment) Rules, 2019 includes the Government, any Department, Services or under taking of the Government.**

In the case of **Arua Kubala Park Operators and Market Vendors' Cooperative Society Limited-v- Arua Municipal Council High Court at Arua Misc. Cause No.3 of 2016**, Stephen Mubiru, J, observed that **"Judicial review is premised on allegations that a public body; - acted without powers (lack of Jurisdiction); went beyond its powers (exceeded Jurisdiction); failed to comply with applicable rules of natural justice; proceeded on a mistaken view of the law (error of law on the face of the record); or arrived at a decision so unreasonable that no court, tribunal or public authority properly directing itself on the relevant law and acting reasonably could have reached it"**

In the instant case the 1st and 2nd respondents are subject to judicial review by the mere fact that they are public bodies carrying out public duties, the applicants also being councilors are aggrieved with the decision making process which the 2nd respondent undertook when he refused to submit names of persons who had been recommended for appointment by the District Executive committee of the council to the Public Service Commission. The averments contained in the affidavits of the applicants also indicate that they [applicants] are protesting the manner and procedure of how the decisions by the 2 nd respondent were taken in total disregard of the laid down procedures.

In view of the above, I find that this application raises issues for judicial review and it is therefore properly before this Court.

**Whether the decision by the 2nd respondent rejecting nominations by the district executive committee and unanimous council decision of 31st March ,2021 recommending submissions of names of new persons and re appointments of the 1st respondents District service commission to Public service commission was illegal, irrational and procedurally improper.**

Counsel for the applicants gave a brief background of the events that occurred during the District Council sitting held on the 31st March,2021 and 7th day of April,2021, and further details can be found in the minutes attached to the pleadings of both parties. He submitted that in that sitting the District Executive Committee nominated four members' whose tenure of office had expired in February 2021 for reappointment to the District Service Commission for one further term, however this reappointment required that the approval from the Public Service Commission.

For avoidance of doubt the said nominees were, **Mrs. Joyce Nape, Mr. Okello Fred, Mrs. Akello Santa Key, Mr. Ogwang Fredrick.** He further stated that Speaker's decision to reject the Council's recommendations infuriated the members who decided to walk out in protest of the decision, that to the members this was in total disregard of the laid down procedure and the law.

In reply, 2 nd respondent averred that the names presented to the Council were not supported by any academic documents and there was no due diligence report pertaining to the above nominees, he further averred that the purpose of the due diligence report was important to ensure that the right and competent persons of high moral integrity are chosen to be members of Kole District Service Commission.

I have perused through the minutes of the two sittings, the submissions and the affidavit evidence on record and will now resolve this issue.

**Section 16(1) of the Local Governments Act as amended** is to the effect that **there shall be an executive committee for each district [council](https://ulii.org/akn/ug/act/1997/5/eng%402000-12-31#defn-term-council) which shall perform the executive functions of the [council.](https://ulii.org/akn/ug/act/1997/5/eng%402000-12-31#defn-term-council)**

Further section 17 under subsection(d) of the Local Government Act as amended empowers the district executive committee to recommend to the [council](https://ulii.org/akn/ug/act/1997/5/eng%402000-12-31#defn-term-council) persons to be appointed members of the district service commission, [local government](https://ulii.org/akn/ug/act/1997/5/eng%402000-12-31#defn-term-local_government) public accounts committee, district tender board, district land board or any other boards, commissions or committees that may be created. From my reading of the above provision of the law, it is clear that the body mandated by law to recommend members to be appointed to the District Service Commission is the District Executive Committee of the Council.

It was therefore within the mandate of the District Executive Committee of the Council to recommend and nominate the four members whose tenure of office had expired for reappointment for one further term.

It is also important to look at the roles and duties of the speaker under the Local Government act as amended; Section 11(9) of the LGA as amended provides that **The [speaker](https://ulii.org/akn/ug/act/1997/5/eng%402000-12-31#defn-term-speaker) shall—**

**(a)preside at all meetings of the [council;](https://ulii.org/akn/ug/act/1997/5/eng%402000-12-31#defn-term-council)**

**(b)be charged with the overall authority for the preservation of order in the [council](https://ulii.org/akn/ug/act/1997/5/eng%402000-12-31#defn-term-council) and the enforcement of the rules of procedure of the [council;](https://ulii.org/akn/ug/act/1997/5/eng%402000-12-31#defn-term-council) and**

**(c)perform functions which are similar to those of the Speaker of [Parliament](https://ulii.org/akn/ug/act/1997/5/eng%402000-12-31#defn-term-Parliament) as may be consistent with this Act.**

From my reading of the above, the roles and duties of a Speaker of a Council have been clearly set out, he or she has no power to interfere with the recommendation process after the same had been concluded by the District Executive committee of the council.

To buttress the above point **Section 54(2) of the Local Government Act provides that a district service commission shall consist of a chairperson and such other members as a district [council](https://ulii.org/akn/ug/act/1997/5/eng%402000-12-31#defn-term-council) shall determine, at least one of whom shall** **represent urban authorities and all of whom shall be appointed by the district [council](https://ulii.org/akn/ug/act/1997/5/eng%402000-12-31#defn-term-council) on the recommendation of the district executive committee with the approval of the Public Service Commission.**

Section 54(3) also stipulates **that members of a district service commission shall hold office for a period of four years, and shall be eligible for reappointment for one further term**. The District Executive Committee of the council was therefore fulfilling its mandate of recommending appointees to be members of the District Service Commission and any attempt to stop or halt the process by the Speaker would be in my view be obstructing the district executive committee of the council from executing its mandate under the law.

The speaker therefore exceeded the authority vested in him by law when he went ahead to reject the unanimous decision of the District Executive committee of the council to have the four members reappointed to the district service commission for one further term.

His actions were not only illegal but were also in bad faith because the executive committee of the council which is mandated to recommend appointments had already done its work, the minutes of the meeting clearly stated that their academic documents and CV, s were laid on table to show that the nominees were suitable persons, requiring a due diligence report from the Executive committee which had already recommended the nominees is not a requirement of the law.

I have no doubt that if this action was in good faith the recommendation of the District Executive committee would have served the same purpose as the purported due diligence report the speaker required, therefore what is most required by law is the recommendation from the District executive committee of the council. The Speaker's actions were therefore illegal or ultra vires because he went beyond the express or implied powers conferred upon him by statute.

By rejecting the nominations and recommendation of the four members approved by the District Executive committee of the council for appointment to the District service

commission and subsequently refusing to endorse the names for approval by the Public Service commission, 2nd respondent undermined the role played by the District Executive Committee of the council. If the speaker had anything in regard to the competence of the four nominated members he ought to have raised it with the District Executive committee of the council, other than he exercising a mandate he didn't have.

I therefore find that decision of the 2nd respondent to reject nominations by the District Executive committee and unanimous council decision of 31st March ,2021 recommending submissions of names of new persons and re appointments of the 1st respondents District Service Commission to Public Service Commission was illegal, irrational and procedurally improper.

On the issue of quorum, I have had the benefit of perusing the minutes of the council sitting and must state that nothing deserving quorum was passed, the house was adjourned indefinitely after some members refused to return. It is also not the case as alleged by the applicants that the budget has been passed on the contrary the District budget is supposed to be passed by the new councilors.

#### **What remedies are available to the parties**?

Counsel prayed for an order of mandamus, an order of compensation punitive damages, general damages and costs of the application be provided for.

Section 37(2) of the Judicature Act does mandate the High Court, considering an application for judicial review, to grant an order of mandamus on such terms and conditions as it deems just.

Mandamus is employed to compel action, when refused, in matters involving judgment and discretion, but not to direct the exercise of judgment or discretion in a particular way, nor to direct the retraction or reversal of action already taken in the exercise of either.

Mandamus is a discretionary remedy, which a court may refuse to grant even when the requisite grounds for it exist. The Court has to weigh one thing against another to see whether or not the remedy is the most efficacious in the circumstances obtaining. I have considered the circumstances of this case having in mind the above principles and grant the following orders;

An order for mandamus issues compelling, the 2 nd respondent and the 1st respondent's chief administrative officer to submit the names and respective files of those nominees recommended by council to the public service commission for considerations of their appointments.

A declaration also doth issue that the actions of the 2nd respondent rejecting nominations by the District executive committee and unanimous council decision of 31st March ,2021 recommending submissions of names of new persons and re appointments of the 1st respondents District Service Commission to Public Service Commission for approval was illegal, irrational and procedurally improper.

I am unable to grant the order of mandamus compelling the 2nd respondent to schedule a main council meeting because this purely an administrative matter for the district and this court wouldn't want set timelines for district councils on how to do schedule its meetings.

General damages are available as a remedy in judicial review in limited circumstances. For damages to be available there must be either, a recognized 'private' law cause of action such as negligence or a claim under express written law. I still do not find it proper to grant general damages and punitive damages in a matter regarding the conduct of public affairs. I therefore decline to grant this prayer

The applicants are entitled to the costs of this application.

I so order.

## **JUDGE**

**2/06/2021**