[2015] UGHCCD 445

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

## (CIVIL DIVISION)

# **MISCELLANEOUS CAUSE NO. 310 OF 2013**

IN THE MATTER OF APPLICATION BY WAY OF JUDICIAL REVIEW

DR. JAMES AKAMPUMUZA...................................

**VERSUS**

TH RE

DE

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- 1. MAKERERE UNIVERSITY BUSINESS SCHOOL. - 2. WASSWA BALUNYWA - 3. ATTORNEY GENERAL - 4. EDUCATION SERVICE COMMISSION - 5. PROF. VANANSIUS BARYAMUREEBA...................................

#### BEFORE: HON; JUSTICE BENJAMIN KABIITO

#### **RULING**

This Application was filed in court on the 26^th August 2013 by Notice of Motion supported by an affidavit of Dr. James Akampumuza.

The first respondent filed an affidavit in reply on the 7^th November 2013 and it was deponed by Yosa Francis.

The second respondent filed an affidavit in reply dated 6^th November 2013.

The third and fourth respondents in response to this application filed an affidavit in reply dated 10^th December 2013.

The fifth respondent filed an affidavit in reply dated 12^th November 2013.

**EXHIBIT MARKED**

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The applicant filed affidavits in rejoinder to the respective affidavits in reply.

After the closure of pleadings, the court gave directives for parties to file submissions in this matter and indeed, counsel for the applicant filed their written submissions which are on court record and are dated 3^rd March 2014.

None of the respondents filed their written submissions within the time stipulated by this court for filing written submissions, instead counsel for the 1^st, 2nd and 5^th respondents a one Terrance Kavuma on 10^th April 2014, came to court and applied for the right to cross examine the applicant in terms of Rule 9 of the Judicature (Judicial Review) Rules, 2009.

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In turn, counsel for the applicant applied under the same Rule to cross examine the Respondents, in this matter.

Notwithstanding the fact that the court had already given directives to counsel to file written submissions, the court conceded to this prayer by both parties to cross examine and made directives in respect to the conduct of the said cross examination, in order for the interest of justice to be served.

Further still, although Judicial Review is a summary procedure, and it is intended that the application be dealt with expeditiously, the court was persuaded by counsel for the parties that the justice of this matter required the parties to be cross examined.

In any event, cross examination of a deponent of an affidavit enables the court to assess the credibility and veracity of the deponent of any affidavit filed in a matter and in that regard the prayer for an opportunity to cross examine the parties was granted by the court.

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Thereafter on the 22^nd May 2014, Counsel Terrance Kavuma indeed did put the applicant through a vigorous and searching cross examination as the record of this court shows.

It's my recollection that this cross examination went on for over three hours and was not finished. Counsel Terrance Kayuma prayed for an adjournment to continue cross examination of the applicant, which adjournment was granted.

At the next hearing of the matter, the court was notified that the firm Muwema, Mugerwa & Co. Advocates that was representing the 1^st, 2^nd and 5^th respondents had split and that new counsel was instructed to replace counsel Kavuma, in the conduct of the matter.

In effect, it meant that counsel Terrance Kavuma could not continue as counsel for the $1^st$ , $2^nd$ and $5^th$ respondents and the matter had to be conducted by new counsel Muwema & Co. Advocates.

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At the next hearing date where the cross examination ought to have been continued, the new counsel for the $1^{st}$ , $2^{nd}$ and $5^{th}$ respondents, requested for an adjournment to peruse through the record in order to take instructions and proceed with the matter.

This prayer was granted given that there was new counsel and he needed time to acquaint himself with the circumstances of this case.

This court gave a long adjournment to enable this prayer for counsel to acquaint himself with the facts of this matter and reserved the 26^th, 27^th and 28^th day of August 2015 for further cross examination of the applicant, re examination of the applicant, cross examination and re examination of all the respondents in a three day reserve period.

It is at this point, on the 26^th August 2015, when counsel for the 1^st, 2^nd and 5^th respondents ought to have continued with the further cross exominotion of the Appliconl or indicote to court lhot he hod no further questions to put to the opplicont.

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It is of lhis sloge thot the leorned Counsel Nsubugo sought to roise preliminory points of low ot this point in time.

Counsel Nsubugo purporled to do the some wilhout prior nolificolion to his colleogues ond lhe lriol Judge in chombers before the commencemenl of the heoring in open court.

ln such o molter, il would hove been expected thot Counsel Nsubugo by courtesy, indicole to his leorned colleogues ond the triol judge of lhese developmenls, rother thon try to do so in open court by triol by ombush, which proctice is discouroged in cose monogemenl by court now doys.

Afler, Counsel Nsubugo insisted thot he inlended lo persue the couse of oclion ond I invited oll counsel lo my chombers to oddress ihis evenl thot hod token oll of us by surprise.

Counsel Nsubugo inlimoted to courl thol he intended lo roise four points of low which were;

- l. Whether the opplicotion wos time boned. - 2. Whether lhe opplicont hod o couse oction. - 3. Whether the opplicont hod locus slondi. - 4. Whether the opplicotion wos properly filed in court under the Judicolure (Judiciol Review) Rules os well os lhe Constilulion of the Republic of Ugondo.

Afler informolly heoring oul oll counsel lhose ore; Counsel Simon Iendo Kobenge, Counsel Ntombirweki Kondeebe for the opplicont, Counsel Chorles Nsubugo for the I't, 2nd ond Stn respondent, leorned Stote Altorney Kosiboyo for the 3d ond 4tn respondents, I indicoted

to oll the counsel lhot I would moke provisions for the heoring of the points of low ofter the cross exominotion of the oppliconl ond respondenls which we hod reserved for long hod been compleled. Thereupon, I would give directions on the filing of wrilten submissions or the points of low.

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I mode lhis position quiet cleor, thot it would be unfoir for lhe courl to deny the opplicont ond his counsel o chonce to re exomine him on the motters roised during his cross exominotion, os is usuolly the cose.

Notwithslonding the soid position thot I hod intimoted to lhe soid Counsel in chombers, upon reconvening in open court, Counsel Nsubugo mointoined thot he intended to persue submissions on lhe poinls of low. noha/thslonding thol he wos reody lo conlinue with the cross exominotion.

ln effecl therefore, Counsel Nsubugo mode o formol opplicolion thot he be ollowed to roise lhe points of low ot lhis sloge of the triol ond thot such points of low coulC resolve lhe motter, wilhout need for ony further proceedings. He relied on lhe cose of Mukiso Biscuits.

ln reply Counsel Ntombirweki Kondeebe roised Order 6 Rule 28 of the Clvll Procedure Rules which essentiolly provides lhol;

"Any porty sholl be enlilled fo roise by his or her pleodlngs ony polnl ol low, any polnf so roised sholl be disposed of by the coutt of or after lhe heoring,'

ln this regord, he submitted thot in the circumslonces, he stoled lhol the obove rules give the court o discrelion os to when the points of ow could be roised ond considered by the court.

He further submitted that the cross examination which had been reserved for long, be completed and these preliminary points of law can be dealt with after, by way of submissions.

The court having considered this matter in its ruling determined that the cross examination must be completed in respect to the applicant and respondents and the preliminary points of law be raised after within the meaning of Order 6 Rule 28 of the Civil Procedure Rules.

The court directed Counsel Nsubuga to embark on the cross examination of the applicant or indicate to the court that he did not have any further questions to put to the applicant.

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Counsel Nsubuga then sought court's leave to consult the 1^st, 2^nd and $5^th$ respondents, over the matter, which opportunity was given to him to do so.

Having consulted his clients, Counsel Nsubuga moved the court, that he was seeking leave of court to appeal to the Court to Appeal against the decision that the court had rendered, to the effect that the points of law be raised after the conduct of the crossexaminations and re-examinations of the applicant and the respondents. Counsel Nsubuga did not raise the issue of whether he intended to proceed with the further cross examination of the applicant or not.

In respect to Appeals generally, a right to Appeal is a creature of statute. Order 44 of the Civil Procedure Rules provides instances when an Appeal shall lie as of right and for instances, when an appeal shall not lie except with leave of court making the order.

The rules provide that applications, for leave shall be by Notice of Motion. Notwithstanding the said requirement, the court allowed this application to be raised, in order to expedite the hearing of this application.

The main aim for leave requirement is to prevent frivolous and need less appeals.

This fetter on appeals tries to keep the administration of justice tidy, preventing unending litigation, or deliberate delays in trials that can cause a backlog situation in courts.

It is important in the consideration of the scope and the value of this hurdle of leave to appeal to consider as well, as a balance, the importance of an appeal as a review mechanism.

The circumstances by which leave should or should not be granted have not been defined in the statute. In these circumstances, it is left to the discretion of the trial judge.

This discretion must be exercised judicially.

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In effect therefore, what the court is being asked to give leave to appeal from is the question at what stage should a point of law be raised and considered by a court.

This is essentially a procedural matter at the discretion of the trial Judge that does not merit an appeal to the court of Appeal as it does not raise any substantial or serious points of law for consideration.

In this matter, the court has not denied the respondents the right to file written submissions on points of law of whatever nature they wish to raise, but directed that this be done after the conduct of the cross-examinations and re-examinations.

The respondents had an opportunity to raise preliminary objections at the filing of the pleadings or in their submissions in reply to the

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submissions of the oppliconl but did nol do so on lhese two occosions.

lnsleod, Counsel for lhe respondenls opted to opply to the courl to cross exomine lhe oppliconl ond proceeded lo do so os I hove noted herein olreody.

Essentiolly lhen, the opplicotion for cross exominolion come from counsel for lhe I d, 2nd ond 5th respondents. lt might very well be thol lhey hove hod o chonge of instruclions while this cross exominotion is going on, however, lhe juslice of the motler requires lhe oppliconl's cross exominotion ond re exominotion to be conlinued ond completed ond the respondents be cross exomined ond re exomined ond thereofter the courl deiermines lhe poinls of low thot moy be roised in the submissions in this molfer.

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It would be unfoir, for lhe cpplicont not to be re exomined ot this beloted stoge of the conduct of this opplicotion, when the respondent hod on opportunily lo roise lhese points of low ond they did not.

^I The hondling of poinls of low is ol the discretion of lhe courl ond ot times, the courts of low hove hondled these os on issue ol lhe conclusion of lhe heoring ond lhis hos been done without prejudice to ony of the porties. lf the points of low submissions succeed, the motter is dismissed ond if not lhe court determines the opplicotion/ motter on its merits.

> The respondenls will nol suffer ony prejudice os the right to roise points of low hos not been loken owoy from them ond if the points of low ore pure ond precise wilhin the meoning of Mukiso Biscuils cose, there is no donger to lhe respondents thot these points of low will be offected by lhe cross exominotion of lhe opplicont ond re

exominotion, os these will be in respecl lo the focts of lhis opplicotion.

ln lhe resull, ond for lhe reosons stoted herein, this opplicotion for leove to oppeol must foil ond is dismissed with costs.

ln this motter, Counsel Nsubugo hos not indicoted thol he !s nol prepored to cross exomine the opplicont ond hos ovoided this motter.

lhove considered thol Counsel Kowumo conducled o vigorous ond seorching cross exominotion of lhe opplicont for o long period of time ond troversed most of the molters he ought lo hove cross exomined lhe opplicont upon.

ln the resull. in lerms of my order of the 2l'r April 2015, I hold thot lhe ld,2nd ond 5rn respondents hove no further questions lo pul to the oppliconl.

ldirecl lhot cross exominotion of the oppliconl be closed.

I further direct thol counsel for the opplicont re exomines lhe opplicont ond close their cose, in order for the respondenls to be cross exomined ond re exomined ond in order to bring this opplicotion to on end.

It is so ordered.

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BENJA IN KABIITO JUDGE 271812015

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