[2024] UGHCCD 123

### **THE REPUBLIC OF UGANDA**

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

### **CIVIL DIVISION**

#### **MISCELLANEOUS CAUSE NO. 344 OF 2020**

**MICHAEL ISINGOMA………………………..………………………………… APPLICANT**

### **VERSUS**

**LAW DEVELOPMENT CENTER………………………………………….... RESPONDENT**

**Before:** *Hon. Justice Dr Douglas Karekona Singiza*

#### **RULING**

### **1 Introduction**

In our common law legal system, it is a mandatory requirement that every law student who wishes to practise law has to undertake a grueling one-year course in legal practice. Given the demands of the course, many find it challenging, leading to high failure rates.¹ The respondent, the Law Development Center (LDC), regulates postgraduate examination in this regard, and, as part of this, caters for students who do not obtain outright passes by granting them a window of time in which to write supplementary examinations. 2

Mr Michael Isingoma, the applicant, asserts that the LDC's actions have systematically infringed his inherent rights under the Constitution. His grievance, more specifically, is that the respondent violated his rights to equality, to freedom from discrimination, to a fair hearing, and to practise his profession, all of which allegations the respondent denies. In the motion before this court,³ the applicant seeks reliefs in order to enforce the rights and freedoms that were allegedly breached, as well as damages and costs.

### **1.1 Background**

Mr Isingoma enroled as a student at the LDC in the 2012/2013 academic year. Unfortunately for him, he failed the examinations. He then used the LDC's supplementary-examination window several times, continuing to do so until the 2018/2019 academic year, yet still failing each time. For instance, Mr Isingoma sat for an exam on Corporate and Commercial Practices on 18 January 2018 but failed it. Seemingly exhausted, he opted to challenge the LDC's decision in a court of law by seeking to know why it was that he always failed the LDC examinations. Mr Isingoma's complaint now is that he wanted to have access to his exam scripts for Corporate and Commercial Practices so that he could frame his grounds of appeal properly, but the LDC denied him this

¹ Kaufman K, Lassalle-Ricci V, Glass C & Arnkoff, G 'Passing the Bar Exam: Psychological, education, and demographic predicators of success' (2007) *Journal of Legal Education* 57(2) 205–223.

² See Rule 17(1) and (2) of the Rules Governing the Bar Course 2023 made pursuant to section 8(1) of the Law Development Centre Act (LDCA) Cap 132.

³ This motion was brought under the provisions of articles 50, 40(2), 42, 43(1), 44, 44(c), 1.2, 20, 21, 28, 30, 45, 126(2)(c) and 139 of the 1995 Constitution as amended of the Republic of Uganda; sections 1, 2 and 3 of the Human Rights (Enforcement) Act 2019 (HREA); rules 2, 3 and 7 of the Judicature (Fundamental Rights and Freedoms) (Enforcement Procedures) Rules SI No. 13–14; section 33 of the Judicature Act, Cap 13; Order 52 Rule 1 of the Civil Procedure Rules.

access, as a result violating a number of his rights under the Bill of Rights. The LDC denies the allegations, averring too that this application is barred by law as it is brought under a repealed law and that, at any event, seeking to obtain a qualification in the course through court orders is impracticable. The LDC's version of events is that Mr Isingoma was given several opportunities to sit for the supplementary examinations, which he did without success.

### **1.2 Representation**

The applicant represented himself via M/s Ojok Advocates *(sic),* while the respondent was represented by M/s Kyagaba & Otatiina Advocates (Denton's).

## **2 Summary of affidavit evidence**

The motion is supported by the deposition of Mr Isingoma Michael, while the LDC relies on the deposition of its secretary, Mr Lukyamuzi Hamis Ddungu. For reasons I shall give later in this ruling, I elect to deal only with the most pertinent averments in the two depositions.

## **2.1 Applicant's evidence in support of the motion**

Mr Isingoma's first line of attack is that the exam results approved by the LDC's Management Committee on 21 December 2017 are contrary to those presented, declared and confirmed on 14 November 2017 by its Board of Examiners for the 2016/2017 academic year. This, Mr Isingoma asserts, was illegal and irrational, a failure of duty that amounted to an abuse of process.

A rather serious allegation is then made before this court, to the effect that the LDC's Management Committee approved results for the 2016/2017 academic year that were curiously at odds with those presented to the Board of Examiners on 14 November 2017. Apparently, 268 candidates who initially failed were unfairly favoured with good marks.

Mr Isingoma's testimony is that he too was at first among those students who had been favoured with a passing mark for the exam but that this favour was unfairly withdrawn from him – hence the alleged discrimination. He explains, furthermore, that whereas he had sat for the supplementary examination in Corporate and Commercial Practice on 5 December 2017 and failed, his appeal against the decision to fail him was unjustly turned down.

## **2.2 Affidavit in reply**

In reply, Mr Lukyamuzi raises the following preliminary objections. First, the motion is in fact barred by law. Secondly, the motion seeks to review the LDC's policies using a strange procedure. Thirdly, the motion seeks prayers against individuals who are not party to the motion.

Mr Lukyamuzi thus contends that the motion in its present form is a disguised device intended to circumvent limitation on appeal against the decision of this court in *Isingoma Micheal v Law Development Centre* Misc. Cause No. 234 of 2019. His point is that once Mr Isingoma elected to rewrite his examination papers through supplementary window for the academic years 2016/2017, 2017/2018, and 2018/2019, he is estopped from ever complaining again. To that end, Mr Lukyamuzi then avers that, to the extent that Mr Isingoma seeks academic qualifications using illegal and impractical orders, the motion as it is must fail.

It is the evidence of Mr Lukyamuzi that Mr Isingoma failed supplementary examinations written in the academic years 2016/2017, 2017/2018, and 2018/2019. It is also his evidence that the results for 2016/2017 were presented to the Board of Examiners for consideration before approval by the LDC's Management Committee. Acting under the oversight power of the Board of Examiners, the LDC's Management Committee resolved to remark all Group A, B, and C subjects. Indeed, students, including the applicant, were remarked without discrimination.

## **3 Dealing with preliminary objections**

Considering the depositions of both sides, the time within which the LDC filed the affidavit in reply; the concern that the motion is in fact *res judicata*; the fact that the motion is barred by operation of estoppel; and that in any case, the procedure adopted to file the motion before this court is an abuse of process are all noted. In the light of these objections, the following issues emerge for determination by this court:

- Whether failure to reply in time to an affidavit in a motion of this nature is fatal. - The circumstances under which a plea of *res judicata* may be sustained. - Whether Mr Isingoma's complaint is barred by operation of estoppel. - Whether the procedure adopted by Mr Isingoma is fatally defective.

## **4 Late filing of affidavit in reply**

Mr Isingoma's argument here concerns the LDC's delay in filing its affidavit in reply within time and without first seeking this court's permission. It is the argument of Mr Isingoma that he filed this application on 24 November 2020 and then served the LDC on 19 November 2021. It was argued that the LDC replied to the motion after a separate application had been made to admit the motion facts under Order 8 Rule 8 of the CPR. In fact, Mr Isingoma makes the point that he subsequently prayed for a default judgment under Order 9 Rule 11 of the CPR. Since the requisite permission of the court was ever granted, then the LDC affidavit in reply should have been struck from the record on account of late filing.

The counsel for the LDC argued that the alleged late filing had not prejudiced Mr Isingoma in any way. It was maintained that while it was true that the affidavit in reply had been filed on 25 March 2022, the fact that Mr Isingoma had been able to rejoin to it on 24 August 2022 shows that there was no miscarriage of justice as a result. Besides, there were no strict timelines for filing affidavits in reply. All that was needed was to ensure that sufficient time were given to the opposite party to know about the deposition in reply. 4

## **4.1 Determination**

There is evidence that the motion before me was filed on 24 November 2021 It is therefore strange that Mr Isingoma could have served the motion papers on the LDC on 19 November 2021, some days before the filing date as stated in the affidavit of service dated 19 November 2021. The LDC's counsel concedes nonetheless that Mr Lukyamuzi's deposition in reply was filed on 25 March 2021 and served that very day. I have perused the LDC's affidavit of service to support that claim dated 30 March 2022. There is no doubt that the LDC's deposition in reply was filed late and without first seeking the permission of this court. The fact that Mr Isingoma had all the same filed his deposition in rejoinder several months later clearly discounts any prejudices that he could have encountered. Considering that the motion before me seeks to enforce the alleged infringement of a number of human rights in the Bill of Rights, and in the light of the available precedents of

⁴ Reference was made to the decision in *Dr. Lam-Lagoro James v Muni University* Miscellaneous Cause No. 007 of 2016 where the court took the view that 'an affidavit in reply, being evidence rather than a pleading *in stricto sensu*, should be filed and served on the adverse party, within reasonable time before the date fixed for hearing, time sufficient to allow that adverse party a fair opportunity to respond'.

superior courts⁵ and rules, 6 I will take a more liberal view and allow this affidavit in reply to be considered as if permission in fact had been properly given.

## **5 Issue 2: Understanding a plea of** *res judicata*

The legal principle that once a dispute has been determined by a court of law with the requisite authority to do so, it should never be tried again by the same parties or their privies is found in the English common law. In Uganda, it finds its clearest expression in section 7 of the Civil Procedure Act cap 71. 7 In general, the intent of this principle is to prevent our courts from being clogged with disputes that could be dealt with by means of an appeal mechanism. There is indeed a danger that re-litigating an already-concluded dispute could result in disrespect for our courts.⁸

The test for how best to apply the plea of *res judicata* was given in *Boutique Shazim Ltd v Norattan Bhatia & another* CA No. 36 of 2007. According to the court, there are two key considerations. The first is a determination as to whether the new claim is an attempt to file an already-determined dispute in another way before a similar court with the same authority. Second is that the new claim involves the same parties engaging in similar legal questions over similar sets of facts.

# **5.1 Determination**

I have carefully considered the submissions of both parties and taken into account each of their arguments. There is evidence that in *Isingoma Micheal v Law Development Center* Misc. Cause No. 234 of 2019 Bashija J dealt with similar grievances that largely sought the same reliefs. The court dismissed the application on account of the fact that the person who had commissioned the affidavits in support of the motion was not authorised to do so. It is clear that that dispute was not determined on its merits but rather was dismissed on technical grounds.

⁵ For instance, in the case of *Horizon Coaches v Edward Rurangaranga and Mbarara Municipal Council* SCCA No. 18/2009 (unreported), Katureebe JSC took the firm view that '[a]rticle 126 (2) (e) of the Constitution enjoins Courts to do substantive justice without undue regard to technicalities. This does not mean that courts should not have regard to technicalities. But where the effect of adherence to technicalities may have the effect of denying a party substantive justice, the Court should endeavor to invoke that provision of the Constitution.'

⁶ See section 6(5) of the HREA.

⁷ Section 7 of the CPA provides that '[n]o court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim litigating under the same title, in a court competent to try the subsequent suit or the suit in which the issue has been subsequently raised and had been heard and finally decided by the court'.

⁸ Halsbury's *Laws of England*, Vol 12 (2009) 5th edition.

I have examined the ruling in Misc. Cause No. 234 of 2019. In that application, Mr Isingoma had challenged the decision of the LDC under the usual oversight powers of this court. During the hearing of that motion, the LDC raised a preliminary point of law given that the motion papers were neither endorsed by the registrar of the court nor bearing the seal of the court. Also questioned was the fact that the motion papers had been stamped and signed by a commissioner for oaths who did not have the requisite authority to do so. The learned trial judge upheld these two objections and dismissed the motion with costs.

The substantive question in Misc. Cause No. 234 of 2019 had nothing to do with stamps on motions or the status of person who commissioned the motion papers. Rather, it dealt with the oversight power of this court over the decision of the LDC. In my view, the claim that the dispute had been determined is probably not true. Since the motion before me deals with the enforcement of the alleged human rights violation, the plea of *res judicata* must fail.

# **6 Issue 3: Operation of estoppel**

The principle of estoppel is an equitable shield that prevents a party from claiming under a certain right because doing so might contradict a previously stated position that was considered not only lawfully but also factually true.⁹ As an equitable shield, the principle may operate as a complete bar to a claim before a court of law. 10

On the basis of the above principle, the LDC reiterates the following factual suppositions. First, Mr Isingoma was allowed to rewrite his examination paper through the supplementary window in the 2016/2017 academic year, a paper which he failed. Secondly, he then elected to explore the available appeal mechanisms in regard to passing examinations. Thirdly, Mr Isingoma reapplied to write his supplementary examination paper in the 2017/2018 and 2018/2019 academic years, which he sadly failed. Considering that he had elected to subject himself to the rules on passing the failed examination papers through both the appeal mechanism and supplementary windows, he was now estopped from bringing this motion.

⁹ See *Ibaga Taratizio v Tarakpe Faistina* HC (Arua) CA 004 of 2017 per Mubiru J. See also Dixon M, J Bignell J & Hopkins N *Megary and Wade: The Law of Real Property* London: Sweet & Maxwell (2024) 710–711 paras 16-001. ¹⁰ See *Willmott v Barber (1*880*)* 15 Ch D 96, an old English case often cited for its detailed discussion of the doctrine of estoppel by acquiescence.

### **6.1 Determination**

In my view, the arguments of the LDC cannot be supported by the available precedents. It is accurate to state here that, in recognition of the rigorous nature of the LDC's bar examinations, the LDC framework on passing the examination caters for students who may not have been as fortunate as those that pass their examination papers outright. The idea is to give students like these as many opportunities as possible to eventually qualify as lawyers for as long as that option remains legally open.¹¹

However, it was not the intention of the framers of the LDC rules governing the bar course that, just because someone had exhausted all the options for passing a rather difficult course at the LDC, he or she would then automatically lose the right to approach this court on account of the operation of estoppel. This is especially true when the complaint before this court is one that deals with the alleged violation of human rights.¹²

### **7 Issue 4: Consequence of using a wrong motion procedure**

That aside, it is the view of this court that to the extent that Mr Isingoma seeks prerogative reliefs using the human rights framework, he must be guided that he is indeed in a wrong court. Given that there is an order of this court which had struck off his previous motion that sought those very orders, it was open to Mr Isingoma to file afresh and then seek to extend time within which to challenge the impugned LDC decision.

## **7.1 Determination**

I am in complete agreement with the views of some judges who express misgivings about applicants that tend to use court 'ventilators' instead of the readily available avenues that are provided for in the law. ¹³ It is my view that Mr Isingoma could have re-filed his motion that had

¹¹ See Kaufman et al. (n 1).

¹² Article 50 of the Constitution adopts a more liberal tenor by making it permissible for any person without exception to approach this court whenever a violation of the rights is complained of by providing that '[a]ny person who claims that a fundamental or other right or freedom guaranteed under this Constitution has been infringed or threatened, is entitled to apply to a competent court for redress'. Section 1(3) of the the HREA lists circumstances where the Act is not applicable by providing thus: 'Save as provided, this Act shall not apply to investigation, protection or enforcement of rights and freedoms by the Uganda Human Rights Commission and the Equal Opportunities Commission.' It is clear that the operation of the principle of estoppel is not one of the circumstances that may deny a person audience before this court.

¹³ *Legal Brain Trust (LBT) Ltd v Attorney General* Miscellaneous Cause No. 314 of 2021.

been dismissed on technical considerations and then applied to extend the time. It was not a good strategy of his rather to hide under the umbrella of human rights enforcement while seeking prerogative orders against the LDC. This is a bad practice that clogs our courts, with the result that much time and resources are wasted.

For the reasons above, the motion before me must be dismissed. Mr Isingoma should explore the option of filing a fresh motion challenging the LDC's decision to fail him instead of approaching this court complaining of alleged violation of human rights.

Each party is to meet their own costs.

**Douglas Karekona Singiza**

**Acting Judge**

**12 July 2024**