Serwadda v Attorney General & Another (Consitutional Petition 34 of 2016) [2025] UGCC 1 (10 January 2025)

Full Case Text

## THE REPUBLIC OF UGANDA

# IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

Coram: Buteera, DCJ, Kibeedi, Mulgagonja, Kihika & Mugengi, JJCC

## CONSTITUTIONAL PETITION NO. 34 OF 2016

#### BETWEEN

DANIEL SERWADDA ::::::::3:3::3::::::;:::!!3::!!!!:::::3:::3:::::3::3:::: PETITIONER

#### AND

#### 10 1. ATTORNEY GENERAL

2. BANK OF UGANDA i::::::!3::3::::::::::3::!3::::::::!::3::i:::::i3::!:: RESPONDENTS

## JUDGMENT OF IRENE MULYAGONJA, JCC

### Introduction

15 This petition was brought under Article 137(3), (4) and (7) of the constitution of the Repubric of uganda, 1995 and the constitutionar court (Petitions and References) Rures S. I 91 of 2005. The petitioner,s grievarce was that the 1"t respondent, through the Director criminal Intelrigence and Investigation Directorate of Uganda police (Director cID), continued to hold his funds despite directions by the Director of public prosecutions (DPP) and the advice of the Solicitor General (sG) that he releases them, 20 in contravention of Articles 26, 7t9(41(a) 120(3), (s) and (6) of the

#### Background

Constitution.

The background, as deduced from the petition but more eraboratery set out in the petitioner's affidavit sworn on 6ft Septemb er 2016, was that on 27tt May 2014, the petitioner,s money amounting to 406,000,000 Uganda ,4

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Shillings was seized by the Police and deposited with the 2nd respondent (BOU). This prompted him to obtain an order from the Chief Magistrate's Court at Buganda Road for the release of the money. Displeased with the said order, the DPP applied to the High Court for revision upon which the High Court set it aside and allowed the police to continue holding the money until completion of the investigations. The judge further ordered that the investigations be completed within the shortest time possible, and if not, to release the funds to the petitioner.

In March 2015, the DPP wrote to the Director CID informing her that efforts to gather evidence had failed and he instructed her to release the 10 money, but the directives were ignored. Further, that in September 2015 the 1st respondent also wrote to the Director CID instructing her to cause the release of the money but again the instructions were ignored.

The petitioner construed this as action that was aimed at permanently depriving him of his money and that given the inflation rate at the time, 15 the money lost value. He therefore brought this petition on the following grounds:

- 1. The act and/or conduct of the Director Criminal Intelligence and Investigation Directorate of Uganda Police in refusing to release your petitioner's funds is inconsistent with and contravenes Article 26 of the Constitution of the Republic of Uganda. - 2. The act and/or conduct of the $1^{st}$ respondent through the Director Criminal Intelligence and Investigation Directorate of Uganda Police of ignoring to follow the directive of the Director of Public Prosecutions to release your petitioner's funds is inconsistent with and in contravention of Articles 120 (3) (a), (5) and (6) of the Constitution of the Republic of Uganda.

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3' The act and/or conduct of the Director criminar Interligence and Investigation Directorate of uganda porice of ignoring the advice of the Solicitor Genera-l to rerease your petitioner,s funds is inconsistent with and contravenes Articres 1 19(a)(a) of the constitution of the Republic of Uganda.

He prayed for an order directing the respondents to rerease his money and that general damages be awarded to him against the l.t respondent, with costs, ald any further oforders or declarations as the court deems fit.

10 The 1"t respondent filed an answer to the petition whose affidavit was deposed by Ms. Josephine Kiyingi, principal State Attorney, on 26th october 2016. She stated that this petition raises no issues or questions as to interpretation of the constitution and it ought to be dismissed for that reason.

She however went on to explain that the money in controversy was in the 1s lawful custody of the 2,d respondent pending disposal of ongoing investigations by the Uganda police Force in accordance with the police Act, cap 303 and Article 2r2 of the constitution. Further, that the money was the subject of parallel investigations and that there was no prohibition ordered against the porice in that regard. she pointed out that the petitioner was previously engaged in litigation in respect of the money in Miscellaneous cause No. 169 of 2ors wherein a decision was handed down by the High court (Kabiito, J) on gth June 2016 and criminal Revision No. O6 of2OL4 decided by Rugadya, J on 2oth June 2014. She concluded that the petitioner is not entitled to any of the declarations and orders sought in this petition and that it ought to be dismissed. 20 ,(

The 2nd respondent also filed an answer to the petition, supported by an affidavit deposed by Margaret Kasule, Legal Counsel of the Bank, in which she stated that the $2^{nd}$ respondent was not violating any law or provision of the Constitution by holding the petitioner's money, but only performing her mandate to do so. Further, that it would require a certificate or order from competent authorities for the bank to release the money.

She further stated that she was aware that the sender of the money, Banco Santander in Spain, and the account holder, recalled the money because it was discovered that it was illegally and fraudulently transmitted to the petitioner's account based on a forged cheque. Further, that on 8th June 2016, the petitioner's application for judicial review in which he sought for an order of mandamus against the first and second respondent to release the funds was dismissed by Kabiito, J.

She further averred that the petition did not show that interpretation of the Constitution was required but rather, it was a disguised appeal from 15 the decision in Misc. Application 591 of 2016, arising from Miscellaneous Cause No. 169 of 2016. Further that this court has no jurisdiction to entertain the petition as it is for enforcement of individual rights under the Constitution and not for interpretation thereof. She accordingly prayed that the petition be dismissed with costs. 20

#### **Representation**

When the petition came up for re-hearing on 9th September 2024, after a re-constitution of the panel of Judges following the elevation of two of the members of the previous panel to the Supreme Court, Mr. Allan Mulindwa represented the Petitioner. The Respondents were represented by Mr Brian Musota, State Attorney.

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The conferencing notes that were earlier filed on behalf of all the parties were adopted as the legal arguments upon which this petition determined by the court. was

order 6 rule 28 of the civil procedure Rules, which is brought into operation by rule 23 of the constitutional court (petitions and References) Rules, provides that:

"Any party shall be entifled to raise by his or her pleading any point of law, and any point so raised shall be disposed oiby tt"lorit "t o, after the hearing; except that by consent of the parties, or by order ofthe court on the application ofeither party, a point of law may be set down for hearing and disposed of at any time before the hearing.',

I will therefore first dispose of the point of law that was raised by the respondents since all of the parties filed submissions in that regard together with the submissions on the substantive issues in the pleadings.

15 I do so because if the preliminary objection is resolved in the positive, it wiil dispose of the whole petition.

### Preliminary Objection

### Submlssions of counsel

counsel for the petitioner addressed the grounds framed as issues in his submissions in chronological order. counsel for both respondents filed replies in similar fashion.

counsel for the 1"t respondent, in passing, raised the point of law that no matter was raised in the petition for the interpretation of the constitution. The 2"d respondent's Advocate comprehensively raised and addressed the point of law in his submissions when he explained that it is not enough for the petitioner to merely allege that a constitutional provision has been

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violated. That the petitioner must prove that there is a substantial question of law that requires interpretation by the court but the petition before court did not do so.

5 10 15 counsel then referred to Article L37 of the constitution and submitted that the issues raised by the petitioner here are more aligned with redress for infringement of constitutional rights. He reried on the decision in Dr James Rwanyarare & Another v. Attorney Generar, constitutionar Petition No. 5 of 1999, where it was held that for this court to have jurisdiction over any matter, the petition must show on the face of it that interpretation of a constitutional provision is required. He also referred court to similar decisions in Ismail serugo v. Kampara city council, constitutional Reference No. g of 2o16; Attorney General v. Major General David Tinyefuza, Supreme Court Constitutional Appeal No 1 of L997. He submitted that in the latter, it was held that this court has jurisdiction under Article 137 of the constitution to interpret contentious articles of the constitution. It is otherwise not concerned with and has no jurisdiction to entertain matters relating to the violation of rights for which parties seek redress.

20 He concluded that since the petitioner's prayers in the petition are for enforcement of his personal rights, he ought to have brought his action in another competent court under an appropriate raw. That for those reasons, this court is not competent to make the decrarations that the petitioner prayed for.

In his rejoinder, counsel for the petitioner did not address the preliminary objection' He instead submitted, as he reiterated what was stated in the main submissions, that the right to ownership of property under Article 26 of the constitution was viorated by the Director cID on suspicious

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money laundering allegations. That this was a clear and flagrant violation of the constitutional right to own property where the petitioner cooperated and no charges were brought but the respondents were still holding onto his property.

Further, that the actions of the Director CID contravene the provisions of $\mathsf{S}$ Article 119(3) and that this court has powers to make declaratory orders to that effect.

## **Resolution of Preliminary Objection**

The jurisdiction of this court is set out in Article 137 of the Constitution which provides, in part, as follows: 10

137. Questions as to the interpretation of the Constitution.

(1) Any question as to the interpretation of this Constitution shall be determined by the Court of Appeal sitting as the constitutional court.

(2) When sitting as a constitutional court, the Court of Appeal shall consist of a bench of five members of that court.

(3) A person who alleges that—

(a) an Act of Parliament or any other law or anything in or done under the authority of any law; or

(b) any act or omission by any person or authority, is inconsistent with or in contravention of a provision of this Constitution, may petition the constitutional court for a declaration to that effect, and for redress where appropriate. ...

In **Ismail Serugo** (supra) the court was divided on the interpretation of the provision above. Kanyeihamba, JSC agreed with Wambuzi, CJ, Karokora and Kikonyogo, JJSC on the interpretation of the provision that was 25 rendered in Attorney General v David Tinyefuza, Constitutional Appeal No. 001 of 1997, where it was opined that:

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"... as far as the case of General D. Tinyefunza v. Attorney-General Constitutional, Appeal No.1 of 1997 [Unreported] is concerned. There is a number of facets to the decision of the Supreme Court in that case. Nevertheless, when it comes to that Court's view of the jurisdiction of the Court of Appeal as a Constitutional Court, its decision in that case is that the Constitutional Court has no original jurisdiction merely to enforce rights and freedoms enshrined in the Constitution in isolation to interpreting the Constitution and resolving any dispute as to the meaning of its provisions. The judgment of the majority in that case, [Wambuzi, C. J., Tsekooko J. S. C., Karokora J. S. C., and Kanyeihamba J. S. C], is that to be clothed with jurisdiction at all, the Constitutional Court must be petitioned to determine the meaning of any part of the Constitution in addition to whatever remedies are sought from it in the same petition. It is therefore erroneous for any petition to rely solely on the provisions of Article 50 or any other Article of the Constitution without reference to the provisions of Article 137 which is the sole Article that breathes life in the jurisdiction of the Court of Appeal as a Constitutional Court."

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In the same case, Wambuzi, CJ at page 24 of his opinion succinctly explained the jurisdiction of this court in the following passage:

"In my view, jurisdiction of the Constitutional Court is limited in Article 137 (1) of the Constitution to interpretation of the Constitution. Put in a different way no other jurisdiction apart from interpretation of the Constitution is given. In these circumstances, I would hold that unless the question before the Constitutional Court depends for its determination on the interpretation of the Constitution or construction of a provision of the Constitution, the Constitutional Court has no jurisdiction."

The petitioner here seeks to recover UGX 405,000,000 which was seized by the Uganda Police and held by BOU. He prayed that this court finds that the act of the Director CID who refused to release the money seized in an investigation was contrary to Article 26 of the Constitution; that the 30 act of the same person who did not comply with a directive of the DPP is in contravention of Article 120 (3) (a), (5) and (6) of the Constitution; and 119 $(4)$ (a) thereof.

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His prayers are that the funds be released and the respondents be ordered to compensate him in damages for holding the money, allegedly contrary to the law. In the case of Tinyefuza (supra) Kanyeihamba, JSC explored the kind of issues that can be dealt with by this court in such petitions and held, at page 25 of his judgment, that:

"The marginal note to Article 137 states that it is an Article which deals with questions relating to the interpretation of the Constitution. In my opinion, there is a big difference between applying and enforcing the provisions of the Constitution and interpreting it. Whereas any court of law and tribunals with the competent jurisdiction may be moved by litigants in ordinary suits, applications or motions to hear complaints and determine the rights and freedoms enshrined in the Constitution and other laws, under Article 137, only the Court of Appeal sitting as the Constitutional Court may be petitioned to interpret the Constitution with a right of appeal to this Court as the appellate court of last resort."

$\mathsf{S}$

He concluded that because this court is also the Court of Appeal with many competing interests, it could not have been the intention of the framers of the Constitution that it should be saddled with each and every matter that relates to the Constitution, as follows:

"... the Court of Appeal should not be put in a position of deciding whether or $20$ not to abandon appeals involving death sentences, treason and gross violation of other human rights originating from the High Court and entering the Court of Appeal by way of ordinary procedures in order first to resolve trivial matters arising from allegations that they were inconsistent with provisions of the Constitution under Article 137 (3) and (7)." 25

Indeed, the petitioner here first sought the intervention of the High Court in the matter in Miscellaneous Cause No 169 of 2015 between himself on the one part, and the Director CID and the $2^{nd}$ respondent on the other, in an application for judicial review. He sought an order of mandamus against both respondents to comply with the directives of the DPP and the

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advice of the Solicitor General to release the money. Kabiito, J who heard the application held thus:

"Upon careful consideration of the evidence before the court, I decline to order for the release of the funds to the applicant, in light of the request made by the sending bank for the return of the funds in question on the grounds that the payment was fraudulent and the payment to the applicant, null and void and in light of recent investigations undertaken and findings made by the 1st respondent and NCB Bank."

The petitioner then came to this court under the guise that the refusal by the $2^{nd}$ respondent to release the money was in contravention of Articles 10 26 and 119 of the Constitution. In view of the decision of the High Court referred to above, I accept the 2nd respondent's submission that when he filed this petition against her, the petitioner brought a disguised appeal against the decision of Kabiito, J.

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It is my view that the only instance in which this court could have gained 15 jurisdiction over the matter was if the resolution of the conflict between the petitioner and the respondents here could not be resolved without this court first interpreting a provision of the Constitution; but that is not the case. In his submissions, counsel for the petitioner admitted that by

holding onto the funds in dispute, the Director CID violated the petitioner's 20 right to own property that is protected by Article 26 of the Constitution. Further, that Article 26 was violated by the Director CID on allegations of money laundering. That this was a clear and flagrant violation of the constitutional right to own property where the petitioner cooperated with investigators and no charges were brought against him but the 25 respondents continued to hold onto his money.

Clearly, the petition does not call for the interpretation of any provision of the Constitution but for its enforcement. The petitioner sought to enforce

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his right to the recover UGX 406,000,000 in the High court but his suit was dismissed. He could have appealed to this court as the court of Appeal but he did not do so. A disguised appeal to that effect cannot bring him remedies that were denied in a court with competent jurisdiction unress that court frames a reference under Articie 137 (5) of the constitution for the consideration of this court, but it was not the case in this petition. In the circumstances, there is no need for me to consider the substantive grounds of the petition.

10 In conclusion, I would find that this petition had no merit whatsoever and I wouid dismiss it with no order as to costs.

Dated at Kampala this loIK day of n A)L 2025

15 Irene Mulyagonj

JUSTICE OF THE CONSTITUTIONAL COURT

## IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

(Coram: Buteera-DCJ, Kibeedi, Mulyagonja, Kihika & Mugenyi JJCC)

## CONSTITUTIONAL PETITION NO. 34 OF 2016

DANIEL SERWADDA PETITTONER

### VERSUS

## I. THE ATTORNEY GENERAL 2. BANK OF UGANDA RESPONDENTS

## JUDGMENT OF RTCHARD BUTEERA, DCJ

I have had the opportunity of reading in draft the Judgment of my learned Sister Lady Justice Irene Muiyagonja , JCC.

I agree with her reasoning, decision and declarations she proposed. I have nothing useful to add.

As Kibeedi, Kihika and Mugenyi, JJCC members of this Coram also agree, this Petition has no merit and it is dismissed with no orders to costs.

Dated this \* day of .. J.9.?:.!q 2025.

Richard Buteera DIII'ITTV CITIE,F . IITST[(]EI

# IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

Coram: Buteera, DCJ; Kibeedi, Mulyagonja, Kihika & Mugenyi, JJCC)

## **CONSTITUTIONAL PETITION NO. 34 OF 2016**

### **BETWEEN**

DANIEL SERWADDA ::::::::::::::::::::::::::::::::::

### **AND**

- 1. ATTORNEY GENERAL - <table>

2. BANK OF UGANDA :::::::::::::::::::::::::::::::::::

# **JUDGMENT OF MUZAMIRU MUTANGULA KIBEEDI, JCC**

I have had the benefit of reading in draft the judgment prepared by Hon. Lady Justice Irene Mulyagonja, JCC. I agree with the reasoning and the Orders she has proposed.

Delivered and dated at Kampala this 10th day of January Manual Caller States

$20$ 2cs

**Muzamiru Mutangula Kibeedi** JUSTICE OF THE CONSTITUTIONAL COURT

# IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

Coram: Buteera, DCJ, Kibeedi, Mulyagonja, Kihika & Mugenyi, JJCC

## **CONSTITUTIONAL PETITION NO. 34 OF 2016 BETWEEN**

DANIEL SERWADDA ::::::::::::::::::::::::::::::::::

#### AND

### 1. ATTORNEY GENERAL

2. BANK OF UGANDA :::::::::::::::::::::::::::::::::::

## JUDGMENT OF OSCAR JOHN KIHIKA, JCC

I have had the opportunity of reading in draft the judgment of my learned sister Irene Mulyagonja, JCC. I agree that, the petition does not call for the interpretation of any provision of the Constitution but for its enforcement.

I also agree that the petition ought to be dismissed with no orders as to 15 cost

Dated at Kampala this .................................... .2024.

OSCAR JOHN KIHIKA $20$ JUSTICE OF THE CONSTITUTIONAL COURT

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# IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

Coram: Buteera DCJ, Mutangula Kibeedi, Mulyagonja, Kihika & Mugenyi, JJCC

# **CONSTITUTIONAL PETITION NO. 034 OF 2016**

#### **BETWEEN**

DANIEL SERWADDA ::::::::::::::::::::::::::::::::::

AND

THE ATTORNEY GENERAL ::::::::::::::::::::::::::::::::::::

# JUDGMENT OF JUSTICE DR. ASA MUGENYI, JCC

I have had the advantage of reading in draft the judgement prepared by my Learned sister, Hon. Justice Irene Mulyagonja, JCC. I agree with the reasoning and orders proposed.

Dated at Kampala this. 10t day January 2026

Dr. Asa Mugenyi JUSTICE OF CONSTITUTIONAL COURT