[2024] UGHCCD 65

### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT KAMPALA

### [CIVIL DIVISION]

### **MISC. CAUSE NO. 008 OF 2024**

ATTORNEY GENERAL ========================== APPLICANT

### VERSUS

UGANDA LAW SOCIETY ======================== RESPONDENT

### **BEFORE: HON. JUSTICE EMMANUEL BAGUMA**

### **RULING**

This application is by notice of motion under article 128 (2) of the constitution, section 33, 36, 38 and 39 of the Judicature Act, Rule 3 (1) & (2), 3A, 5& 6 of the Judicature (Judicial Review) Rules 2009 as amended and Order 52 Rule 1, 2, and 3 of the Civil Procedure Rules seeking for orders that; -

- *1. An order of prohibition doth issue against the Respondent from discussing the alleged judicial misconduct, incompetence, bias, irregularities and illegalities of His Lordship Byaruhanga Jesse Rugyema in the conduct of judicial function for want of jurisdiction.* - *2. A permanent injunction doth issue restraining the Respondent from convening an EGM slated for 12th January 2024 or at all to discuss the alleged judicial misconduct, incompetence, bias, irregularities and illegalities of His Lordship Byaruhanga Jesse Rugyema threatening Tilenga Project Affected Persons vide High Court of Uganda Hoima Misc. Cause No. 24 of 2023: AG Vs Kisembo Rugadya and 41 others.* - *3. Costs of the Application be provided for.*

The application is supported by the affidavit of **Jackline Amusugut** a state Attorney of the Attorney General's chambers whose details are on record but briefly states that; -

1. I know that on 8th December 2023, the Hon. Justice Jesse Byaruhanga Rugyema delivered a ruling in High Court Misc Cause No. 24 of 2023; Attorney General Vs Kisembo Rugadya and 41 others at Hoima wherein he ordered the Applicant to deposit the assessed compensation money and proceed to take possession of the land for its petroleum activities.

- 2. I know that subsequent to the ruling, on 15th December 2023, Mr. Kiiza Eron, a member of the Respondent, petitioned the Respondent to convene an extraordinary Ordinary General Meeting on the alleged gross judicial misconduct, incompetence, bias, irregularities allegedly exhibited by His Lordship Byaruhanga Jesse Rugyema threatening Tilenga Project Affected Persons. **Vide HCMC No. 24 of 2023; Attorney General Vs Kisembo Rugadya and 41 Others.** - 3. I know that the Respondent upon receipt of the petition issued a notice of an EGM to be convened on Friday 12th January 2024 starting from 3:00pm to 4:00pm. - 4. I know that the purpose of the EGM as shown in the notice is the presentation and consideration of a petition by members of the Respondent on the alleged gross judicial misconduct, incompetence, bias, irregularities allegedly exhibited by His Lordship Byaruhanga Jesse Rugyema threatening Tilenga Project Affected Persons. Vide HCMC No. 24 of 2023; Attorney General Vs Kisembo Rugadya and 41 Others. - 5. The Applicant as a member of the Respondent's Council was not notified of the proposed EGM prior to convening the same. - 6. I know from my training as an advocate that the Respondent's Council is expected to exercise some degree of discretion or intellectual input in discussing the matters to place before the EGM and ensure that the matters to be discussed are within the statutory mandate of the Respondent and its not the Respondent's mandate to handle matter of Judicial misconduct, incompetence, bias, irregularities and illegalities of judicial officers. - 7. I know that the functions of the Respondent are set out in Section 3 of the Uganda Law Society Act and the same do not including hearing complaints against Judicial misconduct. - 8. I further know that the rights of parties against judicial misconduct, incompetence, bias, irregularities and illegalities are protected by the Judicial Service Commission, an appeal against the decision of the Judicial Service Officers or removal of the Judicial Officer in accordance with Article 144 of the Constitution. - 9. Eron Kiiza is aware of his right and has since lodged a complaint against the alleged Judicial Officer with the Judicial Service Commission.

- 10. Eron Kiiza's petition to the Respondent to convene an EGM is intended to annoy, disturb and ridicule the Judicial Officer. - 11. The Respondent in convening an EGM pursuant to the petition by Eron Kiiza's petition is acting ultra vires to its mandate as set out in the Uganda Law Society Act and an affront to the independence of the Judiciary. - 12. The actions of the Respondent in calling for an EGM on the alleged Judicial misconduct of a judicial officer is ultra vires to its mandate, is irrational and procedurally improper.

In reply, the respondent opposed the application and in an affidavit sworn by **Atukunda Isaac** the Secretary of the Respondent whose details are on record but briefly stated that; -

- 1. Section 16 of the ULS Act allows any fifteen member of the Respondent to requisition a general meeting by written notice signed by them, specifying the object of the proposed meeting and deposited with the secretary of the Society, subsequent to which the Council is required to convene a general meeting of the Society accordingly. - 2. On 4th January 2024, the Respondent received a petition from its members requesting for an Extra Ordinary General Meeting (EGM) signed by 21 members. - 3. Section 3(c) of the ULS Act mandates the Respondent to represent, protect and assist members of the legal profession in Uganda as regards conditions of practice and otherwise. Based on that, the Respondent was satisfied that the petitioners had met the requirements under the ULS Act that warrant the convening of an Extraordinary General Meeting. - 4. The Respondent in fulfilment of its mandate under section 16 (1) of the ULS Act issued a notice of an Extra Ordinary General Meeting scheduled for 12th January 2024 between 3:00pm and 4:00pm. - 5. All members including the applicant were given a notice for the EGM scheduled for 10th January 2024 via email and since the applicant is a member of the Respondent's counsel, by virtual of that he was informed of the EGM. - 6. The applicant's affidavit in support is argumentative and preemptive of the EGM. - 7. The decision to call a meeting requested by members is not amenable to judicial review - 8. Judicial review is concerned with the decision making process and the only decision the Respondent has made is to call for meeting.

### **Representation.**

Counsel Samuel Kananda and Kakinda Joseph represented the Applicant while Counsel Matsiko Godwin Muhwezi together with Lubulwa Peter represented the Respondent.

At hearing parties agreed to file written submissions.

Counsel for the applicant in his written submissions raised three issues for court's determination to wit; -

- *1. Whether the decision to call the EGM is amenable to judicial review?* - *2. Whether the Respondent is mandated to inquire into the conduct of Judicial Officers?* - *3. What are the remedies available to the parties?*

# **Submissions by counsel for the applicant.**

**Issue No. 1**

## *Whether the decision to call the EGM is amenable to judicial review?*

Counsel submitted that Judicial review is rooted in article 42 of the Constitution and its concerned with challenging public bodies for acts which are illegal, irrational and procedurally improper. He referred to the case of **Centre for Public Interest Law Limited Vs Attorney General MC No. 91 of 2020** which defined Judicial Review to mean;

*"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".*

Counsel referred to Rule 7A of the Judicature (Judicial Review) Rules which states that; -

*"The court shall, in considering an application 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; and*

*(c) That the matter involves an administrative public body or official."*

*2) the court shall grant an application for judicial review where it is satisfied that the decision making body or official did not follow due process in reaching a decision and that, as a result, there was unfair and unjust treatment".*

Counsel concluded that this is a proper case for judicial review.

## **Issue No. 2**

# *Whether the Respondent is mandated to inquire into the conduct of Judicial Officers?*

Counsel submitted that to prove that the application is amenable to judicial review, an applicant must show that the decision or act complained of is tainted with either illegality, irrationality or procedural impropriety.

Counsel submitted that according to the affidavit in support of the cause, the applicant stated that the Respondent issued a notice calling an EGM with the purpose of discussing the conduct of a Judicial Officer in execution of his Judicial Functions in total disregard of the law. This position was admitted by the Respondents in paragraphs 10 and 12 of their affidavit in reply.

Counsel contended that the move to call a meeting with such an agenda is illegal as it usurps the constitutional powers of Judicial Service Commission under Article 147 of the Constitution.

Counsel referred to the case of **Dr. Lam Lagoro James Vs Muni University, HCMC No. 07 of 2016** where court held that; -

"*decisions classified as illegal include, among others, decisions which are not authorized; decisions taken with no substantive power or where there has been a failure to comply with procedure".*

Counsel submitted that the Respondent miss applied section 16 of the ULS act and the framers of the said Act never intended to fuel an illegality. That it is clear that the conduct of Judicial Officers is handled by Judicial Service Commission and a party aggrieved by its decision can lodge an appeal in court. Counsel Eron Kiiza is well aware of the remedy of lodging a complaint with Judicial Service commission which he has already done.

Counsel contended that the Respondent has no mandate or authority to discus the conduct of judicial officers.

Counsel submitted that the decision of the Respondent to call a meeting and discus the conduct of a judicial officer well aware that there is a commission responsible for that is irrational and unreasonable. He referred to the decision of **Lord Diplock in Council for Civil Service Union** where it was observed that;

*"Irrationality applies to a decision which is do outrageous in its defiance of logic or acceptable moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it".*

Counsel also referred to the case of **Dr. Lam Larogo (supra)** where court held that; -

*"in judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision making process. It is also concerned with whether the decision falls within a range of possible, acceptable outcomes".*

Counsel argued that the Respondent was irrational and unreasonable when it issued a notice to convene an EGM to discuss the conduct of a judicial officer without any justification.

Regarding procedural impropriety counsel submitted that the Respondent being a member of the Respondent Council, was affected by the decision to call a meeting without being informed of the process leading to the same.

Counsel concluded that the allegation that all members were informed of the meeting through their emails related to the notice to call the meeting but the Respondent was not notified of the proceedings leading to a resolution to call a meeting which was procedurally improper.

**Issue No. 3**

*What are the remedies available to the parties?*

Counsel submitted that this court be pleased to find that the Respondent's actions to call an EGM to discuss conduct of a judicial officer is not only illegal but irrational and involved procedural flaws and grant the remedies sough.

Counsel for the Respondent in his written submissions raised a preliminary objection to the effect that;-

# *the affidavit in support is tainted with falsehoods, speculative, contains material falsehoods and contradictions*.

In reply to the preliminary objection raise, counsel for the Applicant submitted that the affidavit in support of the application is not prolix or augmentative and neither do they offend or violate Order 19 Rule 3 of the CPR as alleged by the Respondent.

The paragraphs are simply evidential details of the facts that the applicant is relying on to show that the Respondent irrationally made a decision to call an EGM without giving prior notice to the applicant who is both a Council member of the Respondent and a commissioner with judicial service commission. The detailed averments are simply to enumerate factual events as they happened chronologically as opposed to being argumentative and prolix.

Court has very carefully considered the PO raised by counsel for the respondent and the submissions of both counsel on the same and it is this court's view that the PO does not go the root of this application to warrant striking off the affidavit in support.

I will proceed to handle this matter on merit.

### **Submissions by counsel for the Respondent.**

### **Issue No. 1**

### *Whether the decision to call the EGM is amenable to judicial review?*

Counsel submitted that application is not amenable to judicial review. He referred to rule 7A and the case of **Dr, Stella Nyanzi Vs Makerere University HCMC No. 304 of 2018** and submitted that the Respondent in convening an EGM acted within its mandate under section 16 of the ULS Act and the applicant has not raised any triable issues or explored alternative administrative avenues before rushing to court.

The procedure and premises for calling an EGM are specified in the ULS Act and it is not in contention that they were followed. The meeting having not taken place, there is not decision from the EGM capable of being injuncted.

He concluded that the applicant's claim is groundless and unsuitable for judicial review.

# **Issue No. 2**

## *Whether the Respondent is mandated to inquire into the conduct of Judicial Officers?*

Counsel submitted that illegality as defined in the case of **Ojangole Patricia Vs Attorney General HCMC No. 303 of 2013** means; -

*When the decision making authority commits an error of law in the process of taking or making the act, the subject of the complaint. Acting without jurisdiction or ultru vires or contrary to the provisions of the law or its principles are instances of illegality*.

Counsel submitted that the Respondent was acting within their mandates under section 16 of the ULS Act to call for an EGM. That the ULS Act does not give council a duty to vet the agenda of an EGM requisitioned by members so the court cannot assume that such a duty existed within the ULS Act. That the Applicant misled court by attempting to legislate through interpretation.

Counsel submitted that this application is premature as it presupposes a discretionary power on the Respondent on whether to accept or reject a duly lodged requisition to convene an EGM.

On the aspect of irrationality, Counsel referred to the case **John Jet Tumwebaze Vs Makerere Univesity Council & Ors CA No. 78 of 2005** where it was held that:-

## *" irrationality is when a decision made is so outrageous in its defiance of logic or acceptable moral standards that no person could have arrived at that decision".*

Counsel submitted that the assertion by the Applicant that the Respondent's decision to call for an EGM was irrational is inaccurate as it presupposes a different course of action within the ULS Act. The Respondent's decision to call for an EGM was not irrational in any manner. This determination stemmed from the fact that there was no alternative course of action apart from organizing the EGM, as duly requested by certain members as per section 16 of the ULS Act.

Counsel submitted that procedural impropriety refers to flouting rules and principles of natural justice or failure to act with procedural fairness by the decision maker to the prejudice of one affected by the decision.

Counsel contended that the Respondent received a request from its members, duly signed by more than the minimum number and scheduled an EGM as mandated by law. Paragraphs 2, 3 4 &5 of the Respondent's affidavit confirms that the principle of natural justice and procedural fairness within the context of the ULS Act were followed.

Counsel contended that the Applicant had the opportunity to voice out their objection during the meeting and explore administrative channels governing the Council's operations. Alternatively, objections to the agenda items could have been raised at the EGM for members to address. It was premature for the applicant to resort to judicial review without first exhausting administrative options within the leadership of the Respondent.

#### **Issue No. 3**

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

Counsel submitted that the applicant's application for judicial review lacks merit and prayed that the same be dismiss with costs to the Respondent.

In rejoinder, the applicant reiterated his submissions in chief but added that the Respondent ought to have brought the petition by members to call for an EGM to the attention of the Applicant since he is Council member and he would be affected by the decision.

### **Analysis of court.**

## **Issue No. 1**

## *Whether the decision to call the EGM is amenable to judicial review?*

Rule 5 of the Judicature (Judicial Review) Amendment Rules, No. 32 of 2019 introduces Rule 7A into the principal rules, which lays out the factors to consider in handling applications for judicial review as; -

# *"(1) The court shall, in considering an application for judicial review, shall 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; and*

*(c) That the matter involves an administrative public body or official."*

In this particular application, Counsel for the Respondent submitted that this application is premature before the Court since the Applicant did not exhaust available administrative remedies provided for under the Uganda Law Society Act.

It has been held in a number of decisions like, **John Ssentongo vs Commissioner Land Registration & Others, HCMC No. 13 of 2019 and Oyiki Sirino & Ors vs Kampala University HCMC No. 129 of 2022** that the rule on exhaustion of existing remedies is a rule of discretion on the part of the court and the exercise of the discretion is stricter where the challenge by the aggrieved party is premised on merits of the decision rather than the decision making process. Where the challenge is directed against the decision making process, the judicial review option may be more preferable given the particular circumstances of a given case.

In the instant case, The Respondent does not clearly point out those alternative administrative remedies available to the Applicant that were never exhausted.

It is not open to the Respondent, therefore, to argue that the Applicants did not exhaust any available or existing remedy. The position of the law is that the alternative remedy ought to be legally provided for and more effective than judicial Review. *See: Leads Insurance Company Ltd Vs Insurance Regulatory Authority, CACA No.237/15.*

It is this court finding that there is no existing remedy that was available to the applicant in this case which is better than judicial review.

Issue No. 1 is resolved in the affirmative.

### **Issue No. 2**

# *Whether the Respondent is mandated to inquire into the conduct of Judicial Officers?*

It is a settled principle of law that judicial review is concerned not with the merits of the decision made 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 and rationality. The duty of the court, therefore, is to examine the circumstances under which the impugned decision or act was done so as to determine whether it was fair, rational and/or arrived at in accordance with the rules of natural justice. *See: Attorney General vs Yustus Tinasimiire & Others, Court of Appeal Civil Appeal No. 208 of 2013.*

Rule 7A (2) of the Judicature (Judicial Review) (Amendment) Rules, 2019 provides that; -

# *"court shall grant an order for judicial review where it is satisfied that the decision making body or officer did not follow due process in reaching a decision and that, as a result, there was unfair and unjust treatment".*

This reflects from the provision under Article 42 of the Constitution of the Republic of Uganda which provides that any "*person appearing before any administrative official or body has a right to be 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*".

The thrust of the argument by the Applicant's Counsel in this case is that the Respondent received a petition from a section of its members to call an Extra Ordinary General Meeting to discuss the alleged judicial misconduct, incompetence, bias, irregularities and illegalities of His Lordship Byaruhanga Jesse Rugyema following a ruling in Misc. Cause No. 24 of 2023: Attorney General Vs Kisembo Rugadya and 41 others at Hoima High Court.

Counsel contended that the decision by Respondent to call a meeting mainly to discuss the conduct of a judicial officer is outside the mandate of the Respondent and hence an illegality and doing so would amount to usurping the powers of Judicial Service Commission. On the contrary, Counsel for the Respondent submitted that the Respondent had powers to call for the meeting per section 16 of the ULS Act having received a petition from its members duly signed by more than the minimum number.

It is this court's view that **Article 147 1(d) of the Constitution of Uganda** provides for the functions of the Judicial Service Commission and among which include; -

# *"(d) to receive and process people's recommendations and complaints concerning the judiciary and the administration of justice and, generally, to act as a link between the people and the judiciary".*

From the above article of the constitution, it goes without saying that the mandate to handle complaints and disciplining judicial officers is a preserve of Judicial Service Commission and not any other body. The Respondent by making a decision to call a meeting whose agenda was to do what it is not mandated to do amounted to an illegality actionable by judicial review.

The Respondent contended that it has powers under section 16 of the Uganda Law Society Act. I have read **section 16 of the ULS Act** and for the benefit of doubt I will reproduce it here below; -

*(1) "Any fifteen members of the society may at any time requisition a general meeting by written notice in that behalf signed by them, specifying the object of the proposed of the meeting, and deposited with the secretary of the society, and thereupon the council shall convene a general meeting of the society accordingly.*

*(2) If the council fails for fourteen days after such deposit to convene a general meeting in accordance with the requisition, to be held within thirty days after such deposit, the requisitioning members may themselves convene that general meeting to be held at any time within two months after such deposit".*

From the above provision, the section does not give the Respondent powers to conduct investigations into the conduct of Judicial officers. This section envisages meetings on matters within the mandate of the Respondent.

The members of the Respondent who requisitioned for the general meeting (Counsel Eron Kiiza) being well aware of the right procedure, there is evidence to show that

he lodged a complaint with judicial service commission and hence there was no need to hold meetings to discuss a Judicial officer as doing so would amount to an attack on the independence of the Judicial decisions.

Judicial decisions are only challenged by appealing, revision or review and not by discussion or explanations outside the Judgment itself.

In this instant case, it is not in dispute that the decision in issue is an appealable one and it cannot be a subject of discussion or explanation by the general meeting of the Law Society.

In addition to the above, there is also evidence to show that a complaint in respect of the Judicial Officer who made the decision was lodged with the Principal Judge and Judicial Service Commission who are competent enough to handle such complaints raised by the members of the public.

It is trite law that Irrationality refers to arriving at a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it as per *Lord Diplock in Council for Civil Service Unions (supra).*

In the case of *Dr. Lam –Larogo (supra)* the court held that in judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision making process. It is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.

In the instant case, the decision by the Respondent which is e well aware of the tenants of the independence of the Judiciary to convene an EGM to start discussing the conduct of a Judicial officer in a decision he made was pathetic and outrageous to say the list.

The Respondent is much aware of the remedies available for an aggrieved party and the forums where to lodge complaints against a Judicial Officer. Choosing to hold a meeting to attack and criticize a Judicial officer is not expected of a body of lawyers in a civilized society and hence irrational.

Further, Procedural impropriety has been defined to mean "the failure to observe basic rules of natural justice or failure to act with procedural fairness toward the person who will be affected by the decision." Procedural impropriety encompasses four basic concepts; namely (i) the need to comply with the adopted (and usually statutory) rules for the decision making process; (ii) the requirement of fair hearing; (iii) the requirement that the decision is made without an appearance of bias; (iv) the requirement to comply with any procedural legitimate expectations created by the decision maker. *See: Dr. Lam – Lagoro James Vs. Muni University (HCMC No. 0007 of 2016).*

In the case before me, the applicant contended that the Applicant is member of the Respondent's council who supposed to be notified about the petition by the members of the Respondent to hold an EGM and its agenda before a resolution to call for the same. He stated that the move by the Respondent to call for the EGM without the knowledge of the Applicant knowing well that the Applicant will be affected by the matters discussed was procedurally improper. On the contrary the Respondent contended that it made no decision and the only decision taken was to call for the EGM which notice was also circulated to all emails of the members of the Respondent and the Applicant being one of them received the same.

Court has looked at **Section 9 of the ULS Act** which provides for the Council and its composition and it states that; -

*"For the proper management of the affairs of the society, there shall be a council consisting of a president, a vice president, the Attorney General, the Solicitor General (either of whom may be elected president), a secretary, a treasurer and four other members, all of whom, other than the Attorney General and the Solicitor General, shall be elected annually by the society in general meeting".*

When the Respondent received the petition to convene an EGM to discuss the conduct of a Judicial Officer, it was procedurally fair and just that the Applicant as a member of the council and likely to be affected by the subject of discussion should have been informed. Failure to do so amounts to procedural unfairness on the part of the Applicant.

Issue No. 2 is resolved in the negative.

### **Issue No. 3**

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

The applicant having succeeded to prove that the decision by the Respondent to call an EGM to discuss conduct of a judicial officer was marred by illegality, irrationality and procedural impropriety, he is entitled to the remedies sought.

# **Conclusion.**

In the final result, this application succeeds with the following orders; -

- **1. An order of prohibition is hereby issue against the Respondent from discussing the alleged judicial misconduct, incompetence, bias, irregularities and illegalities of His Lordship Byaruhanga Jesse Rugyema.** - **2. A permanent injunction is hereby issue restraining the Respondent from convening an EGM to discuss the alleged judicial misconduct, incompetence, bias, irregularities and illegalities of His Lordship Byaruhanga Jesse Rugyema threatening Tilenga Project Affected Persons vide High Court of Uganda Hoima Misc. Cause No. 24 of 2023: AG Vs Kisembo Rugadya and 41 others.** - **3. Given the nature and circumstances of this case, I make no orders as to costs.**

Dated, signed, sealed and delivered by email on this **9 th** day of **May 2024.**

Emmanuel Baguma Judge