[2024] UGCC 9

#### THE REPUBLIC OF UGANDA

#### IN THE CONSTITUTIONAL COURT OF UGANDA AT I(AMPALA

#### CONSTITUTIONAL PETITION NO. OOI OF 2O2L

#### BETWEEN

#### GEOFFREY NANGUMYA : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : PETITIONER

#### ¹⁰ AND

- 1. ATTORNEY GENERAL - 2. LAW COUNCIL - 3. EMMY TUMWINE: : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : RESPONDENTS

1s CORAM:

# HON MR. JUSTICE F. M. S EGONDA-NTENDE, JCC HON LADY JUSTICE CATHERINE BAMUGEMEREIRE, JCC HON LADY JUSTICE MONICA MUGENYI, JCC HON LADY JUSTICE EVA K. LUSWATA, JCC ²⁰ HON MR. JUSTICE OSCAR KIHIKA, JCC

## JUDGMENT OF EON. LADY JUSTICE EVA K. LUSWATA, JCC

## Bac und

1l The brief facts of this petition were related in the judgment in HC Civil Appeal No.93/20 18, the suit the petitioner filed to

⁵ contest a decision of the Uganda Law Council, the 2na respondent here.

- 2l In brief, it was stated that sometime during November 2013, the Petitioner (an advocate) was instructed by Mr. Tumwine the 3'd respondent, to recover for him Ugx 50,0O0,000/= with interest and damages for money he had paid in a failed land transaction. The petitioner filed a suit to recover that sum but before it could be decided, Mr. T\rmwine withdrew instructions and contracted new lawyers. The new lawyers conhrmed that the petitioner had in fact previously received Shs. 63 million in full settlement of the Mr. T\rmwine's claim and in addition, a consent was filed and executed to close the case. When consulted, the petitioner admitted receiving the above sum, but claimed that Mr. T\rmwine had with reasons objected to sign the consent judgment and that, Mr. Tumwine also owed the petitioner's firm money for several matters handled for him. That the sum received was retained as a lien for outstanding legal fees. Mr. T\rmwine who claimed not to have been informed of the payments, was aggrieved by the petitioner's explanation and thereby lodged a complaint before the Disciplinary Committee of the Law Council (hereinafter the Committee) uide LCD 70/2015. The complaint was decided in Mr. T\rmwine's favour and the following orders were made: - a) The petitioner was ordered to pay the complainant (3rd Respondent) Ugx 59,9OO,OOO/= (Uganda Shillings Fifty-Nine Miliion Nine Hundred Thousand Only). - b) Costs to the complainant of Ugx 1,00O,OOO/= (Uganda Shillings One Million Only).

- ⁵ c) Pay the Committee costs of Ugx 1,500,000/= (Uganda Shillings One Million Five Hundred Shillings Only). - d) Interest on the sums in (a), above at 28%o per annum with effect from March 20 15. - e) The respondent was suspended from practice for a period of two (2) years less the time he had so far served as the interlocutory suspension earlier imposed against him on 24th November 2017, pending the hearing of the complaint i.e. serve a further suspension of 16 months.

- f) The Secretary Law Council is to take note of the disciplinary action taken against the appellant and sanctions imposed and cause them to be inscribed on his official record. If within hve years, the appellant appears before the committee lor any disciplinary action for professional misconduct involving client's money, he would stand to be disbarred and his name truck off the Roll for good. 20 - 3l The petitioner being dissatisfied with the decision of the Committee lodged HC Civil Appeal No. 93/2018, which was dismissed. When dismissing the appeal, the Judges of the High Court upheld all the orders of the Committee with an order that they take immediate effect. It was as a result of the above Court orders that the petitioner commenced this Constitutional Petition under Article 137(3) of the Constitution and the Constitutional Court (Petitions & References) Rules, 2005. The petitioner alleged that the aforementioned judgement was inconsistent with and in

⁵ contravention of the Constitution. He thus petitioned this Court seeking the following declarations:

- a) The act of ordering the Petitioner to remit to the 3nt respondent Ugx 59,900,000/ -- (Uganda Shillings Fifiy-Nine Million Nine Hundred Thousand Shillings Onlg) get he had a lien on the same for unpaid legal seruices rendered to the Jrtt Tssp6nflent bg the petitioner is inconsistent utith and/ or in contrauention of Article 26, 28, 42 and 44(c) of the Constihttion. - b) The act of speanlating the petitioner's inuoluement in future acts of professional misconduct and to direct the Law Council to impose punishment on the appellant if within fiue gears he appeared before the Committee for ang disciplinary action for professional misconduct inuoluing client's moneA is an act of interference of the dispensation of justice by the Lana Council and thus is tnconsistent uith and/ or in contrauention of Objectiue I(i) of the National Objectiues and Directiue Principles of State Policg and Articles 28, 42, 44(c) and 2(2) of the Constitution. - c) A declaration that the act of directing the 2"d respondent on what kind of punishment to impose on the petitioner by disbarring and hauing his name struck off the roll for good in the euent that he appears before it on cases inuoluing client's monea and is inconsistent with and/ or in contrauention of Objectiue 4i) of the Nationol Objectiues and Directiue Principles of state policy and Articles 28, 42, 44(c) and 2(2) of the Constitution.

- ⁵ d) That the act of interfeing with the independence of the Disciplinary Committee of the Law Council impinges on the impartialitg of the Disciplinary Committee tou.tards the Petitioner and is inconsistent uith and/ or in contrauention with Article 28(1) of the Constitution. - e) A declaration that the Judgement and orders made therein be nullified. - fl Costs of the petition. - 4l The l"t and 2"d respondents in their answer to the petition contended that the petition is misconceived, lacks merit and raises no issues and questions for constitutional interpretation. It was emphasized that the appellant was afforded a right to a fair hearing and the High Court made its decision when exercising its appellate jurisdiction and in doing so, confirmed the orders of the Committee, but did not impinge on or interfere with the latter's independence. Further that the High Court did not impose a prior punishment but only made orders to deter the appellant from future similar professional misconduct, which was reasonable and justifiable in the circumstances. In conclusion, it was specihcally contested that the decision of the High Court was inconsistent and contravened Articles 28, 42, 40 and 44(c)of the Constitution of Uganda. They prayed for dismissal of the petition with costs. - 5l The 3'd respondent in his answer to the petition related the facts leading to the decision of the Committee. He too contested the petition and agreed with most of what his co-respondents had pleaded. He added that save for Shs. 3,100,000/= over which the petitioner had a lien, he was liable to refund to him Shs.

59,O0O,OOO/= as ordered by the Committee within its mandate, and not an act done in contravention of the Constitution. That the petition only seeks to challenge a judicial decision but raises no question for constitutional interpretation as provided for under Article 137 of the Constitution. In conclusion, that the decision in HC Civil Appeal No. 93 of 2018 did not infringe upon the rights of the petitioner as stipulated in Articles 26, 28, 42 and 44(c) of the Constitution but rather restored Mr. T\rmwine's rights as the rightful owrler of the decreed sum. He too prayed for dismissal of the petition with costs.

#### 15

#### Representation

6l At the hearing of the petition on 27 /9 / 20 13, the petitioner was represented by Mr. James Muhumuza assisted by Mr. Luwalira Muhammad, while the 1"t and 2"d respondents were represented by Mr. Ocol Ambrose and Ms. Patience Mutoro, both senior State Attorneys. Mr. T\rmwine was represented by Mr. Dan Busingre. At the hearing, the Court permitted counsel to adopt their submissions as the legal arguments in support of the petition. We note that in addition to those submissions, Mr. Bageya Motooka a senior State Attorney filed an affidavit in support of the 1"t and 2nd respondent's answer to the petition. Indeed, much of what the evidence there is, a restatement of their filed replies.

# 30 lssues

7l I have confirmed from the record that there was no conferencing at which the parties could have framed agreed issues for determination by this Court. As a result, in their submissions,

each party formulated its own set of issues. However, for consistency, I will adopt the issues raised by the 1st and 2nd respondents, as the set which best represents the matters that appear to be in dispute. There are as follows:

- Whether the petition raises any questions for constitutional interpretation. - u. Whether the decision of the High Court in Civil Appeal No. 93 of 2018 contravenes Articles 26, 2a,42,40 and 44(cl of the Constitution. - t Whether the High Court interfered with the independence of the Law Council's Disciplinary Committee contrary to Article 28 of the Constitution. - tv. Whether the sanctions imposed on the petitioner violate his rights guaranteed under Articles 28, 42, 40 and 44 and 2(2) of the Constitution.

I emphasize that this being the Constitutional Court, the first issue will be the pivotal question to be addressed. The Court has no mandate to consider the other three, if the facts in the petition raise no question for constitutional interpretation.

# 25 Issue one.

## Petitioners submissions

8l As a precursor to their submissions, the petitioner's counsel submitted that the petition is brought under Article 137 of the Constitution of the Republic of Uganda and that this Court has jurisdiction to handle it. Counsel referred to the decision of

- ⁵ Joyce Nakachwa versus Attorney General & Others, Constitutional Petition No. 2 of 2OOL l2OO2l UGCC 1 in that regard. He argued then that the decision and f,rndings of the decision ol the High Court in HC Civil Appeal No. 93 of 2O18, Geoffrey Nangumya versus Emmy Tumwine & 2 others (hereinafter the appeal) contravenes Article 26(l),28, 40, 42 and 44(c) of the Constitution. 10 - 9l Counsel also cited the Supreme Court decision of Gavin Edmondson Solicitors Limited Versus Haven Insurance Company Limited, (2018) UKSC 21, where it was held that a solicitor is entitied to a common law retaining lien for payment of their costs and disbursements. He therefore considered that he had the benefit of a lien on the sum decreed and that by the committee ordering that he remits it to Mr. T\-rmwine, was deprivation of his property in contravention of Article 26 of the Constitution. In his view, he was justified as an advocate to hold on to any of his client's property pending payment. Counsel further hinged his arguments on this Court's decision of Raphael Baku & Another versus Attorney General, Constitutional Petition No. 1 of 2OO3 to argue that the petition satisfied the three tenets required for constitutional interpretation. In that, the acts complained of were stated, the constitutional provisions which were violated and the declarations sought, were also outlined. - 10] He in addition, attacked the order by the High Court directing the Committee powers to discipline him for any future misconduct involving clients'money, as an act that interfered with the powers and impartiality of the Committee and thus

⁵ inconsistent or in contravention of Objective 1(i) of the National Objectives and Directive Principles of State Policy, and Articles 2(21, 2a(7), 42, and 44(c) of the Constitution.

#### Respondent's submissions

- 11] In response, Mr. Ocol Ambrose for the 1"t and 2nd respondents submitted that the petition is misconceived and does not raise any questions for constitutional Interpretation. He argued that the jurisdiction of the Constitutional Court is limited to interpretation of the Constitution, and therefore, mere reference to constitutional provisions does not open the door to constitutional interpretation. Counsel considered that the petitioner wishes to apply and enforce the Constitution in as far as his rights are concerned, which is outside the jurisdiction of this Court. Counsel cited the Supreme Court decision of Attorney General versus Major General David Tinyefuza, Constitutional Appeal No. 1 of 1997 and this Court's decision of Francis Drake Lubega versus Attorney General and,2 Others, Constitutional Petition No. 37 of 20lt, in that regard. 10 15 20 - 25

L2l Mr. Ttrmwine's counsel substantially agreed with his colleagues and cited the same authorities that explained the jurisdiction of this Court. Counsel added that during the hearings of the Committee, both parties were heard and the petitioner's appeal against the decision of the Committee was dismissed. That knowing he had no further right of appeal, the petitioner chose to file this petition, when there is no question for constitutional interpretation. Mr. T\rmwine's counsel considered the petition

a ploy by the petitioner to evade paying the decretal sum owed $\mathsf{S}$ to his former client. Counsel explored and then found baseless the claim by the petitioner that the orders of the High Court violated his rights under Articles 26, 28 and 42 of the Constitution. It was also his view that in the petition, the petitioner attempts to enforce what he thinks are his rights to 10 money that the High Court has already ruled on. Counsel then concluded that the claims in the petition do not fall under the jurisdiction of this Court and prayed that the same be dismissed with costs.

#### Analysis and decision of the Court

- 13] The Petition was presented in accordance with Article 137 $(1)$ and (3) of the Constitution which provides as follows: - *Any question as to the interpretation of this* $(1)$ *Constitution shall be determined by the Court of Appeal sitting as the constitutional Court.* - "*A person who alleges that;* $(3)$ - a) an *Act of Parliament or any other law or anything in or done under the authority of any law; or* - b) any act or omission by any person or authority, is inconsistent with or in contravention of a provision of this Constitution, may petition the Constitutional Court for a declaration to that effect, and for redress where appropriate." - 14] The issue of actions that are justiciable under Article $137(3)$ of the Constitution has been the subject of numerous judicial decisions of this Court and the Supreme Court. What stands out in all of them is that for this court to have jurisdiction over

any issue or issues raised before it, interpretation of a provision or provisions of the Constitution must be necessary in the resolution the of the said issue(s). It was for example stated by the Supreme Court in **Attorney General versus Major General** David Tinyenfuza, (Supra) that:

$\mathsf{S}$

"... as far as the case of General D. Tinyefunza $v$ . 10 Attorney-General Constitutional, Appeal No.1 of 1997 *[Unreported] is concerned. There is a number of facets* to the decision of the Supreme Court in that case. *Nevertheless, when it comes to that Court's view of* the jurisdiction of the Court of Appeal as a 15 *Constitutional Court, its decision in that case is that* the Constitutional Court has no original jurisdiction *merely to enforce rights and freedoms enshrined in* the Constitution in isolation to interpreting the Constitution and resolving any dispute as to the 20 meaning of its provisions. The judgment of the *majority in that case, Wambuzi, C. J., Tsekooko* J. S. C., Karokora J. S. C., and Kanyeihamba J. S. C], is that to be clothed with jurisdiction at all, the Constitutional Court must be petitioned to determine 25 the meaning of any part of the Constitution in addition to whatever remedies are sought from it in the same petition. It is therefore erroneous for any petition to *rely solely on the provisions of Article 50 or any other* Article of the Constitution without reference to the 30 *provisions of Article 137 which is the sole Article that breathes life in the jurisdiction of the Court of Appeal* as a Constitutional Court."

In the same case, Wambuzi, CJ (as he then was) explained the 35 jurisdiction of this court succinctly in the following passage, at page 24 of his opinion. He held that:

> "*In my view, jurisdiction of the Constitutional Court is* limited in Article 137 (1) of the Constitution to

interpretation of the Constitution. Put in a different *way, no other jurisdiction apart from interpretation of* the Constitution is given. In these circumstances, I would hold that unless the question before the Constitutional Court depends for its determination on the interpretation of the Constitution or construction of a provision of the Constitution, the Constitutional *Court has no jurisdiction."*

15] The Constitution neither defines nor sets out a criterion for determining what amounts to a *"question as to the interpretation"* of the Constitution" Several attempts have been made to give a definition. We shall consider one made in the recent decision of this Court in Foundation for Human Rights Initiative versus Attorney General, Constitutional Petition No. 53 of 2011.

Hon. Justice Christopher Madrama, JCC went to great length to consider the meaning of the phrase; He had this to say:

"The mandate of the Constitutional Court only arises where *there is a doubt or precisely a dispute as to the meaning of* or Articles i.e. *Article* $\overline{a}$ *question* $as$ to $an$ *interpretation........*

*My understanding is that the word "question" used in* 25 *Article 137(1) means "controversy" or imports the meaning* of an "arguable issue" which discloses a genuine dispute about interpretation of the Constitution so as to resolve the *controversy. If the word "question" under Article 137(1) is* read to mean "controversy" with particular reference to 30 controversy as to interpretation, it would mean that the Constitutional Court ought to only determine petitions or references where there is a controversy or controversies about the meaning of a provision of the Constitution. This meaning is possible because the High Court has the 35 constitutional mandate to interpret any provision of the Constitution unless there is a dispute about meaning *thereof...................................* article of the Constitution can fulfil the requirements of

$\mathsf{S}$

*Article 137(3) of the Constitution but it is not sufficient on* $\mathsf{S}$ the face of it to merely allege breach or inconsistency with an Article or Articles of the Constitution by any act, omission or law. For the Constitutional Court to have jurisdiction, such an allegation must have in it a controversy as to interpretation of the Constitution of the 10 Republic of Uganda. It follows that the question before court should involve a controversy about interpretation before the *Constitutional Court assumes jurisdiction in the matter. As I have noted above, a question for interpretation must be an* arguable case about interpretation and where there is some 15 doubt about the meaning which the person having doubt needs cleared or their point of view adopted by the court while the adverse party has a contrary view about the meaning and scope of an article of the Constitution. In other *words, it must be a doubt which makes the meaning of an* 20 article controversial and which controversy should be *cleared by the Constitutional Court.*" Emphasis applied.

In the same case, Justice Mugamba who followed the decision

## in Joyce Nakacwa versus Attorney General, Kampala City 25 Council & Anor, Constitutional Petition No. 2 of 2001,

held that:

"The Constitution is very clear. It does not require a constitutional interpretation to determine whether a person's constitutional rights have been violated for example, if it is established that the person was arrested without cause and detained for more than 24 hours without being taken to court. It is a matter of drawing an inference which can be done by any competent court. In that case, an application for redress would be better entertained under Article 50 of the Constitution."

- ⁵ Further, in a latter decision of this Court it was held that for the jurisdiction of the Court to be triggered, there must be controversy as to whether or not the acts or omissions complained of, are constitutionally permissible. See Alenyo versus the Chief Registrar of Courts of Judicature & 2 Ors, Constitutional Petition No. 32 of 2OL4 10 - 161 Applying the aforesaid criteria to the instant case, the question that arises is, do the substantive issues raised here, call for resolution of an arguable controversy about the interpretation or meaning of the provisions of the Constitution, as alleged by the petitioner? - l7l The substance of the petitioner's complaint is that the decision of the High Court on appeal, confirmed a decision of the Law Council which deprived him of his right to property, denied him a fair hearing, and interfered with the presumption of innocence, all rights to which he is entitled under Articles 28, 40, 42 and 44(c) of the Constitution. He also contests part of the decision of the High Court which directs the Disciplinary Committee of the Law Council to consider having him disbarred in the event he ever appears before the Committee for any disciplinary action for professional misconduct involving clients' money. He considers the order to be one that undermines the independence of the Committee. 20 25 - 30

18] The facts before the Court are that the petitioner was arraigned before the Committee for wrongly holding onto to Mr. T\rmwine's money that he had on the latter's instructions,

- ⁵ received from a defendant in a suit. The Committee sat and allowed both parties to present their case. Their decision was that the petitioner as the advocate could only retain Shs. 3,100,000/= out of the sum received, and he was ordered to pay to Mr. T\rmwine Ugx 59,9OO,OOO/=. - 10

- 191 On appeal, the panei of Judges of the High Court considered that the Committee had properly evaluated the evidence before it. They too agreed that the petitioner had not demonstrated to the Committee or the High Court that he had informed or remitted to Tumwine Ugx 59,900,000/= paid to him as a result of his instructions. It was then held on appeal that that the petitioner could only retain Shs. 3,100,000/= for which he had a taxed bili. They agreed with the Committee's finding that his conduct was unbecoming of an advocate and thereby, amounted to professional misconduct. The Committee's orders that the petitioner refunds Shs. 59,900,OOO/= with interest, payment of Ttrmwine's costs in the sum of Shs. 1,000,000/=, and the Committee costs of Shs. 1,5OO,OO0/=, were sustained. The Committee's order suspending the petitioner for a period of 16 months was also upheld. - 2O] I am unable to hnd that the petitioner's rights to property were violated by the order the directing him to refund certain monies to Mr. T\rmwine. The Court cannot he compelled to consider interpretation of the Constitution on that account alone. The dispute between the parties was clearly a matter of professional misconduct of an advocate. He received money which as part of his instructions, he had to account for and then hand over to

- ⁵ Mr. T\rmwine, his client, but he did not do so. I agree with the principle that an advocate does have an equitable lien which the Court considered to be a lorm of security for the recovery by lawyers, of their agreed charges for the successful conduct of litigation. See: Gavin Edmondson Solicitors Limited Versus Haven Insurance Company Limited (Supra). However, save for his fees, the decretal sum was not his property for the petitioner to retain. He was given a full hearing by both the Committee and the High Court, and then ordered to refund it. His complaint that he was not afforded a hearing is quite baseless. It would be far-fetched for this Court to be drawn into disputes between advocates and their clients over fees. There is ample legislation to cover that area. 10 15 - 2ll Having found that the petitioner has no property rights in the money recovered other than his duly taxed professional fees, a claim under Article 26(1) would be unsustainable. Similarly, his right to practice his profession under Article 4O(2) would not be negated by the order to return the money that did not belong to him. I therefore lind that the decision of the High Court in relation to the proceedings before the Committee required no interpretation of the Constitution. 20 25 - 221 On the other hand, I consider that the decision of the High Court directing the Committee of the Law Council to take disciplinary action against the petitioner and even prescribed the punishment for any future offence of a similar nature, would meet the threshold for this Court to consider interpretation of the Constitution. 30

- $23]$ It was the order of the Court that should the petitioner appear before the Committee within the next five years for any disciplinary action for the same offences, he would stand to be disbarred and struck off the Roll of Advocates. In my view, that would be an order that prescribes a prospective punishment for future behaviour or misbehaviour, and in contravention of Article $28(1)$ of the Constitution which provides that: - *In the determination of civil rights and obligations* $(1)$ $or$ any criminal charge, a person shall be entitled to a fair. and public hearing before speedy $an$ independent impartial $and$ court $\alpha$ r tribunal established by law. - $24]$ An advocate facing disciplinary proceedings before the Committee is entitled to due process in accordance with the 20 law. I say so because every complainant against an Advocate for professional misconduct can only be considered as a fresh proceeding before the Committee. Irrespective of previous convictions, the respondent in such proceedings would be entitled to a fair, speedy and public hearing before the 25 Committee. It would be unconstitutional for the High Court to speculate the petitioner's future professional misconduct and purport to set a punishment for it. Should he for any reason fall in similar error again, due process should prevail so that he receives a fair hearing during which all current misconduct is 30 addressed on its merit. His previous conviction can only be considered as an aggravating factor in determining an appropriate punishment for the complaint under review.

- ⁵ 251 I agree then as raised in the second issue, that part of the decision of the High Court contravenes Articles 2(2l., 28(ll, 42 and 44 (c) of the Constitution. - 261 In the third issue the Court is taxed to determine whether the order of the High Court interfered with the independence of the Law Council's Disciplinary Committee, and if so, whether that would be an order made in contravention of Article 28(1) of the constitution. 10 - 271 The Law Council is established under S.26 of the Advocate's Act and has as one of its core functions, power to discipline Advocates through its Disciplinary Committee. Under Section 19 of the Advocate's Act, the proceedings of the Committee are akin to judicial proceedings and it is expected that the committee is afforded the same degree of independence. Under Section 22 of the Advocate's Act, any Advocate aggrieved by the decision of the Committee has a right of appeal to the High Court which after a hearing can confirm, set aside, vary or substitute the order of the Committee. 15 20 - 281 The above previsions indicate that the High Court only exercises appellate jurisdiction in respect of orders of the Committee, but not matters that are expected to come before it in the future. It would be interference with the independence of the Committee for the High Court to prescribe prospective punishment for future conduct. As I have stated, there must be fair trial of every complaint lodged with the Committee. 30

5 291 In conclusion, the petition has succeeded in part, and I make the following declarations:

- a) The act of ordeing the petitioner to remit to the 3d respondent Ugx 59,900,000/= (Uganda Shillings Fifig-Nine Million Nine Hundred Thousand Shillings Only) was not done in contrauention of Article 26(1) and Article a0 p) of the Constitution. - b) The act of speculating the petitioner's inuoluement in fufire acts of professional misconduct and to direct the Law Council to impose punishment on the appellant if within fiue years he appeared before the Disciplinary Committee for ang disciplinary action for professional misconduct inuoluing client's moneA, is an act of interference with the dispensation of lustice bg the Law Council and thus, is inconslstent uith and made in contrauention of Articles 2(2), 28(1), 42, and 44(c) of the Constitution. - c) The act of directing the LauL Council on uthat kind of punishment to impose on the petttioner bg disbarring and hauing his name struck off the roll for good in the euent that he appears before it on cases inuoluing client's moneA is inconsistent uith and made in contrauention of Articles 2(2), 28(1),42, and 44(c) of the Constitution. - d) That the act of interfering with the independence of the Disciplinary Committee of the Laut Council impinges on the impartialitg of the Disciplinary Committee towards the Petitioner and is inconslsfent uith and made in contrauention of Article 28(1) of the Constitution. - 19

3Ol Each party shall meet their costs of the petition.


## JUSTICE OF APPEAL/CONSTITUTIONAL COURT

## THE REPUBLIC OF UGANDA

## IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

ICORAM: Egonda-Ntende, Bamugemereire, Mugenyi, Luswata & Kihika, JJCq

## Constitutional Petition No.00l of 2021

#### BETWEEN

Geofliey Nangumya:-::: Petitioner

#### AND

| Attorney General | Respondent No.l | |------------------|-----------------| | :<br>Law Council | Respondent No.2 | | Emmy Tumwine:: | Respondent No.3 |

#### JUDGMENT OF FREDRICK EGONDA-NTENDE JCC

- tll I have had the benefit of reading in draft the judgment of my sister, Luswata, JCC. I agree with it and having nothing useful to add. - t21 As Bamugemereire, Mugenyi and Kihika, JJCC, agree with her too, this petition is allowed in part, and dismissed in part, with the orders proposed by Luswata, JCC.

.t1- Signed, dated, and delivered at Kampala this 2rday of ,'4\*J ²⁰²⁴

rick Eg^o a-Ntende k

Jus ce of the Constitutional Court

# THE REPUBLIC OF UGANDA IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA CONSTITUTIONAL PETITION NO.001 OF 2021 BETWEEN

GEOFFREY NANGUMYA :::::::::::::::::::::::::::::::::::: AND

- 1. ATTORNEY GENERAL - 2. LAW COUNCIL - 3. EMMY TUMWINE::::::::::::::::::::::::::::::::::::

#### CORAM:

HON MR. JUSTICE F. M. S EGONDA-NTENDE, JCC HON LADY JUSTICE CATHERINE BAMUGEMEREIRE, JCC HON LADY JUSTICE MONICA MUGENYI, JCC HON LADY JUSTICE EVA K. LUSWATA, JCC HON MR. JUSTICE OSCAR JOHN KIHIKA, JCC

JUDGMENT OF CATHERINE BAMUGEMEREIRE JCC

I have had the opportunity to consider, in draft, the Judgment of my learned sister Eva Luswata JCC. I agree with her reasoning, conclusion and the declarations she proposes.

**Catherine Bamugemereire Justice of the Constitutional Court**

$25$ ^th/03/2024


THE REPUBLIC OF UGANDA

# THE CONSTITUTIONAL COURT OF OF UGANDA AT KAMPALA

(Coram: Egonda-Ntende, Bamugemereire, Mugenyi, Luswata & Kihika JJCC)

## **CONSTITUTIONAL PETITION NO. 1 OF 2021**

GEOFFREY NANGUMYA ....................................

**VERSUS**

- 1. THE ATTORNEY GENERAL - 2. LAW COUNCIL - 3. EMMY TUMWINE ....................................

$\mathbf{1}$

## **JUDGMENT OF MONICA K. MUGENYI, JCC**

I have had the benefit of reading in draft the lead judgment of my sister, Eva Luswata JCC in this matter.

I concur with her decision that the Petition partially succeeds and I agree with the orders she has issued.

Dated and delivered this ... $2.5...$ day of ...................................

multugemi

Monica K. Mugenyi **Justice of the Constitutional Court**

## THE REPUBLIC OF UGANDA

## IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

## CONSTITUTIONAL PETITION NO. OO1 OF 2O2I

## BETWEEN

GEOFFREY NANGUMYA :: PETITIONER

#### AND

- 1. ATTORNEY GENERAL - 2. LAW COUNCIL - 3. EMMY TUMWINE: : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : RESPONDENTS

CORAM:

HON MR. JUSTICE F. M. S EGONDA-NTENDE, JCC

HON LADY JUSTICE CATHERINE BAMUGEMEREIRE, JCC

HON LADY JUSTICE MONICA MUGENYI, JCC

HON LADY JUSTICE EVA K. LUSWATA, JCC

HON MR. JUSTICE OSCAR JOHN KIHIKA, JCC

## JUDGMENT OF OSCAR JOHN KIHIKA JCC

I have had the beneht of reading the draft Judgment of my sister Lady Justice Eva K. Luswata. I agree that the petition partially succeeds.

Page 1 of 5

I, for emphasis, would add that the petition, in so far as it sought a declaration that the High Court's order ordering the Petitioner to remit to the 3rd respondent Ugx $59,900,000/$ = (Uganda Shillings Fifty-Nine Million Nine) is inconsistent with and/or in contravention of Article 26, 28, 42 and 44(c) of the Constitution, is in my view totally misconceived.

It is clear to me that the petition was crafted to challenge a legitimate judicial decision in HC Civil Appeal No. 93 of 2018 insofar as it ordered the Petitioner to remit money belonging to his client and therefore raises no question for constitutional as provided for under Article interpretation $137$ of the Constitution. That decision did not infringe upon the rights of the petitioner as stipulated in Articles 26, 28, 42 and $44(c)$ of the Constitution.

The Petitioner, being an advocate of the Courts of Judicature, ought to know that decretal sums are in the first place property of the decree owner. The Petitioner relied on the Supreme Court decision of Gavin Edmondson Solicitors Limited Versus Haven Insurance Company Limited, (2018) UKSC 21 for the proposition that he had the benefit of a lien on the sum decreed and that by the committee ordering that he remits it to Mr. Tumwine, was deprivation of his property in contravention of Article 26 of the Constitution.

However, as I understand it, the position of the law in Uganda is somewhat different. Section 55 of the Advocates Act provides as follows;

# "Nothing in section 50, 51, 52, 53 or 54 shall give validity to

(a) any purchase or acquisition through other means by an advocate of the interest, or any part of the interest, of his or her client in any suit or other contentious proceedings;

(b) any agreement by which an advocate retained or employed to prosecute any suit or other contentious proceeding stipulates for payment only in the event of success of that suit or proceeding; or

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(c) any disposition, contract, settlement, conveyance, delivery, dealing or transfer which is under the law relating to bankruptcy invalid against a trustee or creditor in any bankruptcy or composition.

(2) An advocate may, with respect to any contentious business to be done by him or her, take security from his or her client for his or her costs to be ascertained by taxation or otherwise."

Thus in the first place, the Advocates Act specifically prohibits an advocate from acquiring any interest in the subject matter of a suit, in this case, the decretal sum which the Petitioner had retained. Section $55(2)$ however permits the advocate to take *security* from his or her client for costs with respect to contentious business to be done by him or her. My reading of Section $55(2)$ is that the advocates may take security from the client before the contentious action is instituted.

If I be right in my interpretation, it would seem to me that the Petitioner did not in the first place have the right to retain the decretal sum. The right course of action would have been to pursue his costs as against his client by initiating action under the provisions of Section 57 of the Advocates Act which provides as follows:

#### "57 Action to recover advocate's costs

(1) Subject to this Act, no suit shall be brought to recover any costs due to an advocate until one month after a bill of costs has been delivered in accordance with the requirements of this section; except that if there is probable cause for believing that the party chargeable with the costs is about to quit Uganda, or to become a bankrupt, or to compound with his or her creditors, or to do any other act which would tend to prevent or delay the advocate obtaining payment, the court may, notwithstanding that one month has not expired from the delivery of the bill, order that the advocate be at liberty to commence a suit to recover his or her costs and may order those costs to be taxed.

$(2)$ The requirements referred to in subsection $(1)$ are as follows—

(a) the bill must be signed by the advocate, or if the costs are due to a firm, one partner of that firm, either in his or her own name or in the name of the firm, or be enclosed in, or accompanied by, a letter which is so signed and refers to the bill; and

(b) the bill must be delivered to the party to be charged with it, either personally or by being sent to him or her by registered post to, or left for him or her at, his or her place of business, dwelling house, or last known place of abode, and where a bill is proved to have been delivered in compliance with these requirements, it shall not be necessary in the first instance for the advocate to prove the contents of the bill (which shall be presumed until the contrary is shown) to be a bona fide bill complying with this Act."

I therefore find that the Petitioner had no business bringing the matter of recovery of his costs to this court for constitutional interpretation. His remedy is well provided for in the Advocates Act.

Just to be clear, the equitable remedy of an advocate's lien on a decretal sum may not apply in our jurisdiction. Section 14 (2) of the Judicature Act of Uganda provides as follows;

"(2) Subject to the Constitution and this Act, the jurisdiction of the High Court shall be exercised—

(a) in conformity with the written law, including any law in force immediately before the commencement of this Act;

(b) subject to any written law and insofar as the written law does not extend or apply, in conformity with—

(i) the common law and the doctrines of equity;

(ii) any established and current custom or usage; and

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(iii) the powers vested in, and the procedure and practice observed by, the High Court immediately before the commencement of this Act insofar as any such jurisdiction is consistent with the provisions of this Act; and

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(c) where no express law or rule is applicable to any matter in issue before the High Court, in conformity with the principles of justice, equity and good conscience."

In the matter brought before this court, there is express law by way of the aforementioned provisions of the Advocates Act which delineate the extent of an advocate's interest in a decretal sum, thus the principals of equity would not apply.

In the result, I agree that the petition partially succeeds. Each party to bear their costs.

Dated at Kampala this..... $2.5$ ^$\mu$ day of ...................................

OSCAR JOHN KIHIKA

#### JUSTICE OF APPEAL/CONSTITUTIONAL COURT