[2002] UGCA 18

#### THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### CORAM: HON. JUSTICE A. E. N. MPAGI-BAHIGEINE, JA HON. JUSTICE A. TWINOMUJUNI, JA HON. JUSTICE S. B. KAVUMA, JA

## CIVIL APPEAL NO.61 OF 2002

#### CHARLES HARRY TWAGIRA................................... 15

### **VERSUS**

## 1. ATTORNEY GENERAL 2. DIRECTOR OF PUBLIC PROCUTIONS

3. KYOMUKAMA SAM 20

...:RESPONDENTS

[Appeal from the ruling/order of the High Court of Uganda at Kampala (Katutsi, J) dated 20^th May 2002 in Misc. Cause No.0013 of 20021

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#### JUDGMENT OF TWINOMUJUNI, JA:

This is an appeal from the ruling of the High Court of Uganda in which the appellant's Miscellaneous Cause No.13 of 2002 was dismissed on 30 preliminary objections raised by the respondents.

The brief background to this appeal is that the appellant filed Miscellaneous Cause No.13 of 2002 in which he sought the following declarations:

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- 1. A declaration that the prosecution of the applicant in Criminal Case No.1423 of 2000 Uganda vs. Charles Harry Twagira is an abuse of process and constitutes an infringement of the applicant's constitutional rights to a fair and speedy trial as guaranteed by article 28 of the Constitution of the Republic of Uganda; - 2. A declaration that the freezing of the applicant's assets as a consequence of Criminal Case No.1423 of Uganda vs. Charles Harry Twagira was unlawful and constitutes an infringement of the applicant's constitutional right to property as guaranteed by article 26 of the Constitution of the Republic of Uganda. - 3. A declaration that the freezing of the applicant's assets as a consequence of Criminal Case No.1423 of Uganda vs. Charles Harry Twagira constitutes an infringement of the applicant's constitutional right to personal liberty as guaranteed by article 23 of the Constitution of the Republic of Uganda: - 4. A declaration that the freezing of $\frac{1}{2}$ applicant's assets as a consequence of Criminal Case No.1423 of Uganda vs. Charles Harry Twagira constitutes an infringement of the applicant's constitutional right to care for and bring up his child-en as guaranteed by article 31(4) of the Constitution of the Republic of Uganda; - 5. A declaration that the freezing of the applicant's assets as a consequence of Criminal Case No.1423 of Uganda vs. Charles Harry Twagira constitutes an infringement of the applicant's constitutional right to protection from any form of torture, cruel, inhuman or degrading treatment or punishment as guaranteed by article 24 of the Constitution of the Republic of Uganda.

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6. A declaration that the freezing of the applicant's assets as a consequence of Criminal Case No.1423 of Uganda vs. Charles Harry Twagira were without any reasonable and probable cause, without any possibility of success, brought maliciously and without a proper investigation;

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- 7. An order that the proceedings in Criminal Case No.1423 of Uganda vs. Charles Harry Twagira be dismissed forthwith; - 8. An order that the legal costs incurred by the applicant in defending himself in Criminal Case No.1423 of Uganda vs. Charles Harry Twagira be met by the respondents; - 9. Consequential orders that the order of the Chief Magistrate Buganda Road, made on 30^th August 2000, freezing the applicant's bank account Nos.4051720 and 4051771 at Barclays Bank, Rwenzori Courts branch be set aside; - 16. Consequential order that the order of the Calef Magistrate Buganda 15 Road, made on 30th August 2000, freezing the applicant's instrument account No. P001712-01 at Bank of Uganda Domestic Financial Markets Department be set aside; - 1! An order that the 1^st Respondent cause a letter to be written by the - Honourable Minister of Internal Affairs to the British Home Office 20 forwarding a copy of the orders herein; - 12. An order that the respondent do pay the applicant general and exemplary damages for the gross violation of the applicant's constitutional rights; - 13. Costs of this application be provided for." 25

The application was supported by an affidavit sworn by the applicant on $6^th$ February 2002 in which he gives a long account as to how he was arrested in London for alleged embezzlement of funds belonging to his company, and how he was brought to Uganda and charged at Buganda Road Court. The proceedings at the court were still going on at the time of hearing of this appeal. We were informed from the bar, that the case is being heard and that the appellant is conducting his defence.

Meanwhile the appellant filed in the High Court, Miscellaneous Cause No.13/2002 as already stated. At the hearing of the application the $10$ respondents raised the following preliminary objections:

# 1^st RESPONDENT

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- (a) The High Court had no jurisdiction to entertain the application because the criminal case in question was still proceeding in the Chief Magistrates Court. The court would only be seized with jurisdiction if the matter came on appeal. - (b) Since some constitutional matters were raised, the matter could go to the $20$ Constitutional Court by way of reference. - (c) The application sought to fault the actions of a Chief Magistrate who was immune from legal action and under section 4(5) of Government Proceedings Act, the Attorney General could not be held liable for actions of a judicial officer.

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- (a) Associated himself with the objections raised by the Attorney General. - (b)DPP could not be dragged to court for exercise of his constitutional mandate. - (c) The court was being asked to determine whether the proceedings in the Chief Magistrate's Court amounted to an abuse of court process, yet such an issue could not be determined without considering the merits of the charges and the evidence in support of the charges before the case was concluded.

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# $3^rd$ RESPONDENT

- (a) This respondent, who was the arresting officer, was merely doing his job $15$ and was not liable to be sued for doing just that. - (b) Under section 3 of the Civil Proceedings Act, 1969, the suit was time barred. - (c) The matter relating to freezing of accounts was raised by the appellant in - court in Civil Application No.197/2000 and was thrown out. It was now resjudicata. - (d) The procedure followed to file the application under section $3(1)$ of the Fundamental Rights Rules was improper and the application was in the wrong court.

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After hearing the reply to these objections by Mr. Karugaba, learned counsel for the appellant, the learned trial judge upheld most of these objections and dismissed the application, hence this appeal.

Eight grounds of appeal were filed on his behalf as follows:- $\overline{5}$

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- 1. The learned judge erred in law in dismissing an application involving determination of fundamental human rights on preliminary objections; - 2. The learned judge erred in law when he found that article $50(3)$ gave $10$ the appellant a right of appeal in respect of the orders of the court freezing the appellant's account; - 3. The learned judge erred in law in drawing a distinction between "pleas in bar" and the orders sought in the application; - 4. The learned judge erred in law in the distinction she made between $15$ the appellant case and the decision in Oluishola Overbemi vs. Attorney General and Others and in declining to follow the said decision; - 5. The learned 'udge erred in law in considering the me-its of the appellant's case without having been addressed on it; - 6. The learned judge erred holding that the appellant's prayers regarding the freezing of his account were Res Judicata; - 7. The learned judge erred in law and fact when she found that two courts are entertaining the same matter concurrently; - 8. The learned judge erred in law when she found that the trial Chief 25 Magistrate was seized with jurisdiction to make a reference to the **Constitutional Court."**

On appeal, Mr. Philip Karugaba represented the appellant and Ms Christine Kaawa, a Senior State Attorney, and Ms Fatuma Nanziri, a State Attorney, represented the respondent;

- On the Headsheet on the court file, only the Attorney General was indicated $\mathsf{S}$ as the only respondent. Neither counsel for the appellant nor the respondent alluded to the fact that there were in fact two other respondents in the case. We proceeded with the appeal only to learn later that the $3^rd$ respondent raised a complaint later by letter that he was not given a hearing. Since we had by then closed the hearing of the case, we could not re-open it by a mere $10$ letter of complaint. After waiting for more than a month for him to take - appropriate procedure for redress, and no proper application was forthcoming, we decided to write judgment. Moreover as it will appear later in this judgment, some of the respondents should not have been parties to the application in the High Court in the first place. I believe no injustice will be $15$ occasioned by not being heard on appeal. The presence of the Attorney General covered them.

The main issue in this appeal is whether the High Court had jurisdiction to try Miscellaneous Cause No.13 of 2002. Before I deal with the eight 20 grounds of appeal, I will first dispose of this issue.

Miscellaneous Cause No.13 of 2002 was stated to have been filed under the provisions of article 50 of the Constitution Rule 3(1) of the Fundamental

Rights and Freedoms (Enforcement Procedure) Rules S. I No.26 of 1992, 25 Orders 2 r.7 and 48 rr.1 and 3 of the Civil Procedure Rules. Implied in this

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issue are two matters which were raised as objections to the application in the High Court, namely:-

(a) Whether the application was in a competent court as required under article 50 of the Constitution.

(b) Whether the applicant was pursuing the right parties.

The Constitution of the Republic of Uganda provides three ways in which civil suits can be instituted in our courts system. They are:-

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$\blacktriangleright$ Where a presidential candidate is aggrieved by the decision of the Electoral Commission in declining a winner, he can petition the Supreme Court under Articles 104 of the Constitution.

$\blacktriangleright$ Article 137 of the Constitution provides that:

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"Any question as to the Interpretation of this Constitution shall be determined by the Court of Appeal sitting as a Constitutional Court."

A question for Constitutional Interpretation arises:

- (a) When a person alleges that an Act of Parliament or any other lay or anything done under the authority of any law or that any act or omission by any person or authority is inconsistent with or in contravention of a provision of the Constitution. - (b) Where a question as to the interpretation of the Constitution arises in any court of law other than a Field Court Martial.

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> Under article 50 in any court of competent jurisdiction as provided for under article 129 of the Constitution. It will be seen that article 50 is the Constitutional basis for all the suits that are filed in all our courts everyday and the procedure to be followed are to be found in the Judicature Act and all the relevant rules of Civil Procedure applicable in the Courts of Record and the Sub-ordinate Courts.

Now looking at the application in Miscellaneous Cause No.13 of 2002, it seems clear to me that it raises questions of constitutional interpretation that can only be dealt with under article 137 of the Constitution. Even the Fundamental Rights and Freedoms (Enforcement Procedure) Rules (Otherwise known as Legal Notice No.3 of 1996) are only applicable in the $10$ Constitutional Court and not to the High Court. It should be noted that the word "Court" in those rules means "the Constitutional Court of Uganda established by article 137 of the Constitution of 1995." The word "petition" therein means "an aggrieved party seeking to institute proceedings for declaration or redress under Clause (3) of article 137 of 15 the Constitution."

In my judgment, an action can only go to the High Court under article 50 on a plaint and purely for enforcement of fundamental rights and freedoms and not declaration of their existence or interpretation of the Constitution. Such 20 an action cannot be brought by Notice on Motion unless a substantive suit on plaint is pending. It also cannot be brought under Legal Notice NO.3 of 1996 or a combination of the above. It follows that the suit was improperly before the High Court which had no jurisdiction to entertain it.

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In the proceedings before this court, Mr. Karugaba placed heavy reliance on the judgment of Mulenga JCS in the Supreme Court decision of Onyango

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Obbo & Anor vs. Attorney General Constitutional Appeal No.2 of 2002. With respect, I think Mr. Karugaba misunderstood the relevant holding in the case which is in fact against his position. His Lordship stated:-

"Before taking leave of the case, I should, for guidance, comment on the preliminary order made by the Constitutional Court to stay hearing of the petition pending disposal of the criminal case against the appellants in the magistrate's court. The court made the order at its own initiative, notwithstanding the unanimous view expressed by counsel on both sides that the petition should proceed before the criminal trial. The court stated the reason for the order as follows:-

> 'It seems clear to us therefore that the purpose of this petition is to circumvent or even pre-empt the criminal prosecution. But as this court held in Const. Petition No.4/97 Arutu John vs. Attorney General where criminal proceedings are pending in another court and a petition is brought to this court in respect to the same matter, then the petition should be stayed pending the determination of the criminal matter in the trial Accordingly we order that the petition be stayed court. pending determination of Buganda Road Court Criminal *Case No. U 2636/97 against the petitioners.'*

With the greatest respect to the Constitutional Court, that order was misconceived. It is inconsistent with the letter and spirit of the Constitution. Under Article 137, any person may access the Constitutional Court in one of two ways. First, a person may

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petition the Constitution Court directly for a declaration that any law, act or omission is inconsistent with, or in contravention of a Secondly, a party to any provision of the Constitution. proceedings in a court of law, in which a question arises as to the interpretation of the Constitution, may request that court refer the question to the Constitutional Court for decision. Clause (7) of Article 137 provides that in that case, the court:-

'shall proceed to hear and determine the petition as soon as possible and may, for the purpose, suspend any other matter pending before it.'

Where a court refers a question that arises in proceedings before it, it must await the decision of the question by the Constitutional Court, and 'dispose of the case in accordance with that decision'. The rationale for these provisions is obvious. The constitution is the basic law from which all laws and actions derive validity. Where the constitutional validity of any law or action awaits determination by the Constitutional Court, it is important to expedite the determination in order to avoid applying a law or taking action whose validity is questionable."

This case illustrates that if the appellant had filed a petition in the Constitutional Court under article 137 of the Constitution, he would have had a better chance of obtaining the remedy he sought using the provisions of article 50 of the Constitution.

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Regarding whether the appellant was or is pursuing the right parties in the High Court or this court, I hold the view that assuming that the High Court had jurisdiction, the appellant should have proceeded only against the Attorney General and the third respondent. The Director of Public Prosecutions is a government department but it is not a body corporate with powers to sue or be sued. Article $250(2)$ of the Constitution provides:-

"Civil proceedings by or against the Government shall be instituted by or against the Attorney General; and all documents required to be served on the Government for the purpose of or in connection with those proceedings, shall be served on the Attorney General."

Therefore a civil suit against the Director of Public Prosecution cannot be sustained and it is incompetent. The same equally applies to the case against $15$ the 3^rd respondent. He is the police officer who was sent to London to rearrest the appellant and escort him to Uganda. He is the one who made the investigations and applications under the law that led to the detention and freezing of the appellant's accounts. He was at all times acting as an employee of the government. Not only is he protected against personal 20 lawsuits arising from his official functions by the laws of Uganda but he is also covered by section 48 of the Judicature Act. I am of course aware that he could be sued in his personal capacity if there is a possibility that he acted beyond the scope of his duties or maliciously, but that does not arise in this case. Nevertheless the appellant could, at his own risk, maintain an action $25$ against the $3^{rd}$ appellant.

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My findings above that the High Court has no jurisdiction to entertain this suit is enough to dispose of this appeal and I do not find it necessary to consider irrelevancies raised in the Memorandum of Appeal. I would dismiss this appeal with costs here and in the High Court to the respondents.

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

Hon. Justice Anos Awinomujuni JUSTICE OF APPEAL

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## THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA, AT KAMPALA

### CIVIL APPEAL NO.6112002

### CHARLES HARRY TWAGIRA APPELLANT.

### VERSUS

#### . ATTORNEY GENERAL 1

. DIRECTOR OF PUBLIC PROSECUTION 7

. KYOMIJKAMA SAM RESPONDENTS. 3

#### CORAM: l0

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HON. JUSTICE A. E. N. MPAGI-BAHIGEINE, JA. HON. JUSTICE A. TWINOMUJUNI, JA HON. JUSTICE S. B. K. KAVUMA. JA

#### JUDGMENT OF A. E. N. MPAGI-BAHIGEINE, JA. t5

I have read in draft the judgement of Twinomujuni JA. I entirety agree that the appettant adopted a comptetety erroneous and confusing procedure in trying to access justice. I have nothing useful to add except to emphasize that the appetlant coutd seek redress or enforcement of his rights from any court of competent jurisdiction r"inder articte 50 of the constitution. On the other hand he coutd seek a dectaration onty from the Constitutional Court under articte 137, though he coutd atso obtain redress under articte 50 in conjunction with articte 137 from the same court.

Furthermore, it is trite that the 2nd ancl 3"j respondents cou[d not be sued for discharging tlteir constitutionaI duties. The appeal is ctearty devoid of merit.

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Since Kavuma JA also agrees the appeal is accordingly dismissed as proposed by Twinomujuni, JA.

Dated this....................................

A. E. N. Mpagi-Bahigeine.<br>JUSTICE OF APPEAL

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### THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

## HON. JUSTICE A. E. N. MPAGI-BAHIGEINE, JA. CORAM: HON. JUSTICE A. TWINOMUJUNI, JA. HON. JUSTICE STEVEN B. K. KAVUMA, JA.

# CIVIL APPEAL NO. 61 OF 2002

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CHARLES HARRY TWAGIRA...................................

### **VERSUS**

- $\overline{1}$ . **ATTORNEY GENERAL** - $2.$ DIRECTOR OF PUBLIC PROSECUTIONS... RESPONDENTS

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$3.$ KYOMUKAMA SAM

### JUDGMENT OF STEVEN B. K. KAVUMA, JA.

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I have had the advantage of reading in draft the judgment of Hon. Mr. Justice A. Twinomujuni, JA and I entirely agree with it and the findings and the Order of dismissal of the appeal he made. I have nothing more to add.

STEVEN B. K. KAVUMA JUSTICE OF APPEA 17th June