Uganda Law Society & Another v Tumukunde & Another (Miscellaneous Application 1178 of 2024) [2025] UGHCCD 3 (17 January 2025)

# 5 **THE REPUBLIC OF UGANDA**

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

**(CIVIL DIVISION)**

### **MISCELLANEOUS APPLICATION NO. 1178 OF 2024**

## **(ARISING FROM MISCELLANEOUS CAUSE NO. 228 OF 2024)**

# 10 **1. THE UGANDA LAW SOCIETY**

**2. ISAAC KIMAZE SSEMAKADDE ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANTS**

**VERSUS**

#### **1. TONNY TUMUKUNDE**

# **2. BYAMAZIMA JOSHUA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENTS**

# 15 **BEFORE: HON. JUSTICE ESTA NAMBAYO RULING**

The Uganda Law Society and Isaac Kimaze Ssemakadde (hereinafter referred to as the 1st and 2 nd Applicants respectively) filed this application under **S. 33 of the Civil Judicature Act and Order 1 Rules 10 of the CPR,** against Tonny Tumukunde and Byamazima Joshua (hereinafter referred to as the 1st and 2 nd 20 Respondents respectively), seeking for orders that: -

- **1. The Attorney General be added as a necessary party to Miscellaneous Cause No. 228 of 2024 and all interlocutory applications arising therefrom, that is, Miscellaneous Application No. 1134 of 2024 and** 25 **Miscellaneous Application No. 1135 of 2024.** - **2. The costs of this application be in the cause.**

Grounds of this application are set out in the affidavit in support of the application sworn by the 2nd Applicant, Mr. Isaac Kimaze Ssemakadde, but briefly are that: -

**1. The addition of the Attorney General to Miscellaneous Cause No. 228 of** 30 **2024 and all interlocutory applications arising therefrom will facilitate**

**the effectual and complete determination by the Honourable Court of all underlying controversies arising out of the issuance of Executive Order RNB No. 1 of 2024 by the Applicants.**

- **2. Executive Order RNB No. 1 of 2024 issued by the Applicants on October** 35 **14, 2024 was affecting the Attorney General and Solicitor General's exofficio membership in the 1st Applicant.** - **3. The addition of the Attorney General to the main cause and its underlying applications is necessary to avoid a multiplicity of suits in this Honorable Court.** - 40 **4. The Respondents' complaints and arguments in the applications and substantive cause are intended for the benefit of the Attorney General which is a constitutional office mandated to institute and oppose legal proceedings in its corporate name.** - **5. The Respondents do not have the locus standi to institute legal** 45 **proceedings for the benefit and interest of the Attorney General.** - **6. The Attorney General has recently written to the 1st Applicant objecting to the legal validity of Executive Order RNB No. 1 of 2024 and as such, his interests and those of the Respondents in the captioned proceedings are one and the same.** - 50 **7. The addition of the Attorney General will not prejudice the Respondents and will occasion no injury or damage to them.** - **8. This application is brought in good faith and it is just and equitable that this application be granted.**

The 2nd Respondent has no objection to the application while the 1st Respondent 55 opposes the application.

# **Background to the application**

The brief background to this application is that on the 14th October, 2020, the 2 nd Applicant being president of the Uganda Law Society issued a directive titled

Executive Order RNB No. 1 of 2024 expelling the Attorney General and the Solicitor 60 General and/or their representatives from the Uganda Law Society Council.

Following the directive, the Respondents filed MC No. 228 of 2024 for Judicial Review on the grounds that the directive contravened the provisions of the Uganda Law Society Act Cap 30.

On the 13th/11/2024, the Applicants filed this application seeking orders that the

65 Attorney General be added as a necessary party to MC No. 228 of 2024 and all interlocutory applications arising therefrom.

#### **Representation**

Learned Counsel Jude Byamukama and Milton Ocen are for the Applicants while Counsel Anthony Bazira is for the Respondents.

70 Counsel for the parties have filed their submissions as directed by court.

# **Preliminary Point of Law**

In his submissions, Counsel for the Respondents raised a preliminary point of law that by the time the Applicants filed this application, they had not filed their affidavit- in- reply in the main suit (MC No.228 of 2024) from which this application

75 arises.

Counsel submitted that having failed to file their affidavit in reply in the main suit, the Applicants have no locus to bring this application as they did not enter appearance in the main case. He relied on **Section 20 of the Civil Procedure Act** and the case of **Hajji Asumani Mutekanga –v- Equator Growers (U) Ltd, SCCA**

80 **No. 7/1995**, **at page 205**, where the **Supreme Court** held that a defendant who neither enters appearance nor files a written statement of defence is precluded from taking part in proceedings during formal proof hearing when there's a subsisting interlocutory judgment.

Counsel contended that the first step to be taken by the Applicants before filing 85 this application for the addition of the Attorney General, was to file an affidavit in Reply in Misc. Cause No. 228/2024. That this application should have stemmed from the affidavit -in -reply in the main suit.

Counsel further explained that this application was filed and uploaded on ECCMIS on the 13th November, 2024, while the affidavit -in -reply to Miscellaneous Cause

No. 228/2024, was uploaded on ECCMIS on the 19 90 th November, 2024, a week after filing this application. Counsel referred to paragraph 12 of the 2nd Applicant's affidavit in reply to the main application (MC No.228 of 2024), where it is stated that;

**''**without the addition of the Attorney General to this application, the same cannot

- 95 be effectively determined on merits and the interests of justice therefore require that the Attorney General first be joined as a party prior to hearing of this application. The 1 st Respondent and myself have already filed an application in this court vide MA 1178 of 2024 Uganda Law Society & Anor -v- Tonny Tumukunde & Anor for the addition of the Attorney General.**''** - 100 He then submitted that filing the current application to add the Attorney General did not amount to entry into appearance by the Respondents in Misc. Cause No. 228/2024. That entry of appearance meant filing an affidavit -in -reply to the main suit; Miscellaneous Cause No. 228/2024. That it is the affidavit -in -reply that would have given basis and a factual explanation as to why the Applicants want to add a 105 necessary party.

Counsel averred that addition of a party is a matter of fact and not law and as such, the Applicants failed to take the first step in the proceedings when they rushed to file this application without entry of appearance i.e. without filing an affidavit in reply to Miscellaneous Cause No. 228 of 2024.

110 He relied on the case of **Attorney General & Uganda Commercial Bank Ltd –v-Westmont Land (Asia) BHD & 2 Others, MA No. 593 of 1999**, where a defendant/respondent filed an interlocutory application before entering appearance**.** The Applicants had filed two applications; M. A No. 593 & 595 of 1999, for stay of the main suit pending arbitral proceedings. Despite being served with 115 the summons and the plaint, they did not file their Written Statement of Defence. The Respondent filed a memorandum of reply challenging the propriety of the application. Justice J. H. Ntabgoba, J, (as he then was) held as follows;

''Where a party fails to comply with the provisions of O.9 rule 1 of the Civil Procedure Rules that mandatorily requires a party served with summons to file a

120 defence, such a party is precluded from the locus to take part in any further proceedings including applications to stay the proceedings and leave to appeal against the refusal of the High court to stay the proceedings. Therefore, the application for leave to appeal would not be granted.''

Counsel contended that there being no appearance entered at the time of filing 125 this application, the Applicants were handicapped in filing this application and as such, they cannot prosecute it. He emphasized that an attempt to file the affidavit in reply to the main suit after filing this application cannot cure the mischief but boarders on abuse of court process. He prayed that on this ground alone, this

130 Counsel for the Applicants did not file submissions in re-joinder/reply to this objection.

#### **Analysis**

application should be dismissed.

**In Haji Asumani Mutekanga-v-Equator Growers (supra),** the trial Judge allowed the Defendant's Counsel to participate in proceedings of the case where the 135 Defendant had not filed his defence. When the matter went on appeal, Oder, JSC (as he then was), noted that;

"I agree with the view of the appellant's learned Counsel. With respect, I think that the learned trial judge should not have allowed the respondent's learned Counsel to participate in the proceedings and, still less, to cross-examine the appellant and 140 his witnesses."

# **In Sengendo –v- Attorney General (1972) 1 EA 140; Phadke, J, at Page 141 noted that;**

145 "a defendant who fails to file a defence puts himself out of Court and no longer has any locus standi and cannot be heard."

**(see also Kanji Devji v-- Damor Jinabhai & Co. (1934) 1 EACA 87, Agadi Didi – v- James Namakaso HCCS No. 1230 of 1988 and Administrator General -v-Kakooza & Anor MA No. 11 of 2017)**

150 In this case, when the Applicants were served with MC NO. 228 of 2024, they did not immediately file their affidavit-in-reply. They instead filed this application arising from the main suit, (MC NO. 228 of 2024), on the 13th /11/2024. On the 19th /11/2024, about a week later, the Applicants/Respondents then filed

their reply to the main suit. This is confirmed under paragraph 12 of the 2nd 155 Applicant's affidavit in reply to the main application (MC No.228 of 2024). In effect, the Applicants filed this application before filing their reply to the main suit.

Applying the legal principle cited in the above cases to this case, I find that the Applicants cannot be heard on this application, having filed it before filing their reply to the main suit. The Applicants should have first filed their reply to the main

160 suit and thereafter, file this application as arising from the main suit. It is my view that this application was filed pre maturely.

I agree with the submission of Counsel for the Respondents that by failing to file their affidavit –in- reply in the main suit before filing this application, the Applicants have no locus to bring this application and cannot be heard. This application should

165 have been filed after filing the reply to the application for Judicial Review. Therefore, I find merit in the preliminary objection raised by Counsel for the Respondents. Having upheld the preliminary objection, it would be prudent to dismiss this application at this point, but for purposes of completeness, I find it necessary to look at the other grounds that the Applicants have presented before this court.

# **Ground 1: Whether the Respondents/Applicants have locus to file the application for Judicial Review.**

Counsel for the Applicants submitted that the Respondents have no sufficient interest in Executive Order RNB No. 1 of 2024, that terminated the Attorney General and the Solicitor General's participation on the 1st 175 Applicant's Council as ex-officio members and as such, they have no locus standi to file for judicial review proceedings against the Applicants. That the Respondents rights as members of the 1st Applicant are not affected by the none participation of the Attorney General and that the Respondents filed MC No. 228 of 2024 without instructions and/ or

180 consent of the Attorney General. Counsel emphasized that the Respondents are even seeking for reliefs that they cannot implement. That one such relief is compelling the Attorney General to participate in the 1st Applicant's Council. That in his letter to the 1st Applicant's Chief Executive Officer, the Attorney General cites S. 9 of the Uganda Law Society Act and complains that the Act conscripts him into the affairs of the 1st 185 Applicant but he does not state whether the provision passes constitutional muster and that

this is why the AG should be added as a party to the application for Judicial Review.

In reply, Counsel for the Respondents submitted that the issue of locus of the Respondents to file the application for judicial review is premature and should not 190 be considered at this stage. That it should be reserved for the main application as per the case of **Makerere University -v- Makerere University Staff Tribunal & Ors, MA No. 639/2024 consolidated with MA No. 118 of 2024**, where the Respondent raised many preliminary objections that touched on the main application to which the judge held that they should be framed as triable issues. 195 Counsel also relied on the case of **Legal Brains Trust Ltd -v- AG & Another, MC No. 638 of 2014**, where it was held that matters of judicial review shouldn't be argued in an application for temporary injunction.

Counsel further relied on **Rule 3A of the Judicature (Judicial Review) (Amendment) Rules, 2019** which provides that; ''Any person who has direct or 200 sufficient interest in a matter may apply for judicial review''

He submitted that in this case, the Applicants; Tony Tumukunde and Joshua Byamazima are subscribing members of the Uganda Law Society and they participated in the election of the current leadership and as such, they were equally affected by the Executive Order since they also have direct and sufficient interest 205 in the affairs of the Uganda Law Society as stated in paragraph 4(a), (b), (c), (d) and (e) of the affidavit in reply deponed by Tony Tumukunde.

Counsel relied on the cases of **Water & Enviroment Media Network (U) Ltd & 2 Ors -v- NEMA & Hoima Sugar Ltd, MC No. 239&255 of 2020, Editors Guild Uganda Limited & Another -v- Attorney General, Misc. Cause No. 400 of 2020**,

**Administrative Law by Sir William Wade, 6th** 210 **edition, at page 702**, He prayed that this court be pleased to find that the Respondents/ Applicants have locus to file for judicial review.

#### **Analysis**

In this application, the Applicants seek for orders of this court that the Attorney

215 General be added as a necessary party to Miscellaneous Cause No. 228 of 2024 and all interlocutory applications arising therefrom, that is, Miscellaneous Application No. 1134 of 2024 and Miscellaneous Application No. 1135 of 2024 and for costs of the application.

No prayer has been sought for this court to pronounce itself on the eligibility of

In **Ms. Fang Min –v- Belex Tours & Travel Ltd. SCCA No. 6 of 2013 consolidated with Civil Appeal N0.1 of 2014, Crane Bank Ltd –v- Belex Tours and Travel Limited,** the Supreme Court noted that;

220 the Respondents/Applicants to file the application for Judicial Review.

"The court of Appeal also granted reliefs which were not prayed for in the plaint

225 without any amendment of the plaint…It is now well established that a party cannot be granted relief which it has not claimed in the plaint or claim… The 1 st appellate Judge should have restricted his decision to matters which were pleaded."

Applying the above finding of the Supreme Court to this case, I would find that 230 this court cannot pronounce itself on the eligibility of the Respondents/Applicants to file MC No. 228 of 2024 for judicial review when the Applicants have not sought this court's pronunciation on the same in their pleadings. It is a settled practice that a party is bound by their own pleadings and a court cannot grant orders that are not sought by the party.

235 The Applicants may seek court's pronunciation on the eligibility of the Applicants to file the application for judicial review under S. 7A (1) of the Judicature (Judicial Review) (Amendment) Rules, 2019, when the application, MC NO 228 of 2024 comes up for hearing.

**Ground 2: Whether the Attorney General should be added as a party to** 240 **Miscellaneous Cause No. 228 of 2024.**

Counsel for the Applicants while relying on Order 1, Rules 10 (2) and 13 of the CPR and the case of **Kololo Curing Co. Ltd –v- West Mengo Co-op Union Ltd [19811 HCB 60]** submitted that it is settled that both court, on its own motion, and the parties on application to court can have a joinder of parties that would facilitate 245 the effective and complete determination of a suit. He also cited the case of **Samson Ssempasa –v- P. K. Sengendo H. C. M. A No. 577 of 2013** where Court held

that the purpose of joinder of parties is to enable court to effectually and completely deal with the matter in controversy and to avoid a multiplicity of proceedings.

250 Counsel further relied on the cases of **Nabukenya Sarah and 7 Ors –v- Sulaiman Mukasa and 4 Ors M. A No. 193 & 231 of 2022 and Departed Asians Property Custodian Board –v- Jaffer Brothers Ltd [1999] 1. E. A 55** and submitted that under section 33 of the Judicature Act Cap 16, Court has powers to grant remedies so that as far as possible all matters in controversy between the parties are 255 completely and finally determined and all multiplicities of legal proceedings concerning any of the matters is avoided.

He averred that the law as summarized above completely supports the joinder of the Attorney General as a necessary party in this matter and the Applicants contend that Section 9 of the Uganda Law Society Act Cap. 305 is an unconstitutional

260 colonial relic which must be disregarded under Article 274 of the Constitution. That the Respondents have filed the Main Cause to compel the Applicants to respect and apply an obsolete and unconstitutional provision of the law.

Counsel emphasized that the Attorney General must be allowed to have the final say on whether his office considers the said Section 9 valid in light of the 265 international principles, which Uganda respects and upholds, requiring independence of Bar Associations from the executive or State organs and for this reason alone, the Attorney General is not only a necessary party but his joinder will dictate the responses of the Applicants since if the Attorney General concedes that the said provision is unconstitutional, then the Respondents' Miscellaneous Cause

270 will collapse; and if the Attorney General holds a different view, then a serious constitutional question will be sought for resolution in the Constitutional Court. Counsel prayed that either way, it is necessary that the Attorney General is made a party to Miscellaneous Cause No. 228 of 2024 and the related interlocutory applications and that costs of this application be provided in cause.

275 **Submissions for the Respondents**

Counsel for the Respondents agreed with the submissions of the Applicants' Counsel on the law on joinder of parties as set out in Order 1 rule 10 (2) and 13 of the Civil Procedure Rules and the cited cases. He however contended that the Applicants have not met the parameters for addition of the Attorney General as a 280 necessary party.

Counsel disagreed with para. 12 on page 3 of the Applicants' submissions that section 9 of the ULS Act, is unconstitutional and must be disregarded under article 274. He explained that the submission is evidence from the bar as the same was never pleaded/or stated in the Applicants' pleadings and evidence. He relied on

285 the case of **Hezekiah Mukiibi & Another –v- Commissioner Land Registration, Misc. Cause No. 98 of 2019**, at page 14 and prayed that such submission should be disregarded.

In regard to the Applicants' submission that the Attorney General must be added so that he gets chance to have a final say on whether his office considers section 290 9 of the ULS Act valid in light of international principles, Counsel contended that addition of the Attorney General is not necessary because Judicial Review is concerned with the decision making process and not the merits of decision. That the Respondents are challenging the manner in which the Attorney General and the Solicitor General were expelled from the Applicant's Council without following 295 due process and that all they want is court to look at the grounds of illegality, procedural impropriety and irrationality. He referred this court to the case of **Attorney General & Anor –v- Uganda Law Society, M. C No. 0321 of 2012, at page 19** and emphasized that in the application for judicial review, the Respondents/Applicants are challenging the process or the manner in which the 300 decision to expel the Attorney General was made. That the Applicants in this case have not demonstrated the benefit that the Attorney General will add to the court proceedings. All that they have stated is that he was directly affected but the Executive Order and that the Respondents have no locus. That on the contrary, what the Applicants need to do, is to show, that they followed the right procedure 305 and that the expulsion of both the Attorney General and the Solicitor General was done within the confines of the law which does not require the presence of the Attorney General.

Counsel prayed that this court finds that there's no need to add the Attorney General to Miscellaneous Cause No. 228/2024, as the application is for judicial 310 review which is concerned with the process and not the decision.

## **Analysis**

The impugned application, MC No. 228 of 2024 was brought to court under Art. 42 & 44(c) of the 1995 Constitution of Uganda, Sections 36, 37 & 38 of the

315 Judicature Act, Cap 13 and Rules 3A, 5 and 6 of the Judicature (Judicial Review) Rules, 2009 (as Amended).

**Section 36 (1) of the Judicature Act Cap 13**, provides for the powers of the High Court to issue orders under judicial review and it states as follows;

(1) The High Court may, upon application for judicial review, grant any one or more 320 of the following reliefs in a civil or criminal matter-

- (a) an order of mandamus, requiring any act to be done; - (b) an order of prohibition, prohibiting any proceedings or matter; or - (c) an order of certiorari, removing any proceedings or matter into the High Court. - 325 Rule 3 (1) and (2) of the Judicature (Judicial Review) Rules, 2009, provides that a party may apply for an order of prohibition, certiorari, declaration and injunction by way of judicial review in appropriate cases.

In this case, the Applicants rely on the response by the Attorney General in reply to their Executive Order, RNB No. 1 of 2024 and not the process that they followed 330 to issue the Executive Order.

#### **The 11 th Edition of Black's Law Dictionary defines Judicial Review at page 1013, as;**

**"**court's power to review the actions of other branches of government; especially the court's power to invalidate legislative and executive actions as being

335 unconstitutional. Secondly, a court's review of a lower court's or administrative body's factual or legal findings."

Under the Judicature (Judicial Review) (Amendment) Rules, 2019, judicial review means the process by which the High Court exercises its supervisory jurisdiction over proceedings and decisions of subordinate courts, tribunals and other bodies 340 or persons who carry out quasi-judicial functions or who are charged with the performance of public acts and duties.

In the case of **Attorney General –v- Yustus Tinkasimiire & 18 others; Civil Appeal No. 208 of 2013**, the court of Appeal noted that;

"in judicial review proceedings, the Court is not required to vindicate anyone's 345 rights but merely to examine the circumstances under which the impugned act is done to determine whether it was fair, rational and or arrived at in accordance with rules of natural justice".

In **Koluo Joseph Andrew & others –v- the Attorney General and others MC No.106 of 2010**, court noted that;

- 350 "Judicial Review is concerned not with the decision but with the decision making process. Essentially judicial review involves an assessment of the manner in which a decision is made, it is not an appeal and the jurisdiction is exercised in a supervisory manner, not to vindicate rights as such, but to ensure that public powers are exercised in accordance with the basic standards of legality, fairness - 355 and rationality."

In this case, all the remedies sought in MC No. 228 of 2024 are judicial review remedies (see S.36 of the Judicature Act).

The grounds of the application as laid out in the Respondents/Applicants' affidavit in support of the application, (MC No. 228 of 2024), among others, are that the

360 Applicants/Respondents' actions in expelling the Attorney General and the Solicitor General from the Applicant's Council were ultra vires the powers vested in them under the Uganda Law Society Act, Cap 305.

### **Black's Law Dictionary (supra) at page 1833, defines ultra vires as;**

"beyond the powers of; unauthorised, beyond the scope of power allowed or 365 granted by a corporate charter or by law."

This means that the Respondents/Applicants' claim in MC No.228 of 2024 is that the Respondents/Applicants in this application, went beyond the scope of power allowed or granted to them by law in dismissing the Attorney General and Solicitor General from the 1st Applicant's Council.

- 370 Under paragraphs 11 and 12 of the affidavit in support of the application, (MC No.228 of 2024), the Respondents/Applicants state that the impugned **Executive Order RNB No. 1 of 2024,** was arrived at irregularly and without according the Attorney General and Solicitor General an opportunity to be heard. That this amounted to violation of the principles of natural justice and it also contravened - 375 Articles 42 and 44 (c) of the 1995 Constitution of Uganda. These are the Articles relied on/cited by the Respondents/Applicants in MC No. 228 of 2024.

# **Art. 42 of the 1995 constitution of Uganda provides for a right to just and fair treatment in administrative decisions and states that;**

"Any person appearing before any administrative official or body has a right to be 380 treated justly and fairly and shall have a right to apply to a court of law in respect of any administrative decision taken against him or her."

# **Art. 44 (c) of the constitution provides that;**

Notwithstanding anything in this constitution, there shall be no derogation from the enjoyment of the following rights and freedoms-

385 (c) the right to fair hearing.

The Respondents/Applicants then go on to seek for judicial review remedies as provided under the Judicature Act.

The Applicants in this case have not presented evidence to show that the Attorney General participated in the decision making process of **Executive Order RNB No.**

390 **1 of 2024,** that the Respondents are challenging in the application for judicial review. I therefore, find no basis for the addition of the Attorney General as a party to the application.

On the whole therefore, this application fails and it is hereby dismissed from court with costs.

395 I so order.

**Dated, signed and delivered by mail and uploaded on ECCMIS at Kampala on this 17th day of January, 2025.**

**Esta Nambayo**

400 **JUDGE**

**17th/1/2025.**