[2025] UGHCCD 93

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (CIVIL DIVISION) MISCELLANEOUS CAUSE NO. 151 OF 2022**

# **SAGE JEREMY WALLINGTON ::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT VERSUS**

### **1. ATTORNEY GENERAL**

# **2. COMMISSIONER DIRECTORATE OF IMMIGRATION AND CITZENSHIP CONTROL :::::::::::::::: RESPONDENTS**

# **BEFORE: HON. JUSTICE BONIFACE WAMALA RULING**

### **Introduction**

[1] This application was brought by Notice of Motion under Article 42 of the Constitution, Sections 36(1) of the Judicature Act Cap 13, and Rules 3, 6 & 7 of the Judicature (Judicial Review) Rules 2009 and Section 98 of the Civil Procedure Act seeking the following declarations and orders;

- a) A declaration that the decision to cancel the applicant's dependent visa by the Commissioner Directorate of Immigration and Citizenship Control was arbitrary and illegal. - b) An order of Certiorari quashing the said decision as the applicant was not given a fair hearing. - c) An order restraining the respondents from passing a directive to deport the applicant from Uganda. - d) The costs of the application be provided for.

[2] The grounds upon which the application is based are summarized in the Notice of Motion and also set out in the affidavit in support of the application deposed by **Sage Jeremy Wallington**, the applicant. Briefly the grounds are that the applicant was called for a meeting in the 2nd respondent's offices and asked to record a statement in regard to his status in the country without being accorded a chance to give his side of the story. The applicant has been legally married to a one Balimunsi Sage Catherine for over twenty years living both in Uganda and the UK. Before he moved to Uganda with his wife who is of Ugandan origin, he intimated to her that he needed to apply for dual citizenship so that they could live happily in Uganda as a married couple but his wife instead applied for a dependent visa with ill intentions of later cancelling it and having him deported so that she could remain with the sole control and ownership of his properties. The applicant has lived and stayed in Uganda for over twenty years moving in and out until his marriage irretrievably broke down. The applicant avers that was never given an opportunity to explain the circumstances when his case for cancellation of his dependant visa was brought up and was only required to write a statement by the officers of the 2nd respondent. The decision was, therefore, made without according him a fair hearing, an opportunity to prepare his defense or cross examine the complainant; which occasioned a great injustice.

[3] The 1st respondent opposed the application, through an affidavit in reply deposed by **Twinomugisha Mugisha**, a State Attorney in the Chambers of the Attorney General. He stated that the application is incompetent, frivolous, misconceived and an abuse of court process. He further stated that the application disclosed no cause of action against the respondents. He averred that the applicant was issued with a special pass for three months on 1st August 2022 and was advised to apply for any other convenient facility upon expiration of the special pass which he has not done since its expiry on 1st November 2022.

[4] The 2nd respondent opposed the application through an affidavit in reply deposed by **Egadu James**, a Principal Immigration Officer in charge of Prosecutions with the 2nd respondent. The deponent stated that the applicant is a British National who is married to a Ugandan and was granted residence in Uganda as his wife's dependent. The applicant's wife requested the Commissioner of the 2nd respondent to cancel his dependent pass, allegedly due to various accounts of abuse and violent behavior and for reason that she was unable to sustain the applicant due to her ill health as a stage 4 cancer patient. The officers of the 2nd respondent were tasked to carry out investigations to ascertain the veracity of the allegations and the applicant was invited for a hearing, at which he alleged that a family feud had been going on between him and his wife for the last three years. The 2nd respondent cancelled the applicant's Dependent Pass and issued him with a Special Pass for a further three months to stay in Uganda due to his advanced age of 80 years. The applicant was advised to apply for any other convenient facility if he met the requirements upon expiry of the special pass. The special pass has since expired and the applicant has no facility enabling his residence and /or stay in Uganda. He concluded that the orders sought against the respondents should not issue.

#### **Representation and Hearing**

[5] At the hearing, the applicant was represented by **Mr. Lubogo Andrew Daniel** from M/s Rwabwogo & Co. Advocates while the respondents were represented by **Mr. Sam Tusubira** and **Ms. Sarah Bingi** from the Chambers of the Attorney General. The hearing proceeded by way of written submissions which were filed by both counsel. I have considered the submissions in the determination of the matter before Court.

#### **Issues for Determination by the Court**

[6] Three issues were agreed upon for determination by the Court, namely;

- *a) Whether the application is amenable for judicial review?* - *b) Whether the application discloses any grounds for judicial review?* - c) *Whether the applicant is entitled to the reliefs claimed?*

### **Resolution of the Issues**

### **Issue 1: Whether the application is amenable for judicial review?**

#### **Submissions by Counsel for the Respondents**

[7] Counsel for the respondents submitted that the present application is not amenable for judicial review on two grounds; one, that it is seeking to enforce a private right of the applicant who seeks to remain in Uganda; and secondly, that the applicant did not exhaust existing remedies before filing the application for judicial review. On the first ground, counsel cited Musa Ssekaana in Public Law in East Africa (2009), Law Africa Publishing, Nairobi, at page 37 for the position that for a matter to be amenable for judicial review, it must involve a public body in a public law matter. The body under challenge must be a public body whose activities can be controlled by judicial review; and secondly, the subject matter of the challenge must involve claims based on public law principles and not the enforcement of private law rights. Counsel submitted that in this case, whereas it is undeniable that the 2nd respondent is a public body, the subject matter of the challenge does not involve claims based on public law principles; rather it seeks to enforce private law rights for the grant of leave to remain in the country. Counsel concluded that on this ground, the application is not amenable for judicial review.

[8] On the second ground, Counsel for the respondents submitted that section 10(1) of the Uganda Citizenship and Immigration Control Act provides that any person aggrieved by any decision of the Board under the Act may, within 30 days after the decision is communicated to him or her, appeal to the Minister. Counsel cited the case of *Watoto Church Ministries v Kampala Plan House Limited Misc. Cause No. 207 of 2022 UGHCD 205 (7th July 2023)* for the position that an aggrieved person must have exhausted all the existing remedies available within the public body or under the law. Counsel submitted that in the present case, the applicant did not explore the option of appealing the decision of the 2nd respondent to the Minister and thus did not exhaust the existing remedy provided in the law. Counsel concluded that the application is not amenable for judicial review on that account.

### **Submissions by Counsel for the Applicant**

[9] Counsel for the applicant submitted that the respondents admitted that the 2nd respondent is a competent statutory public authority amenable to judicial review. Counsel disputed the respondents' claims that the applicant did not exhaust the existing remedies and stated that the applicant, upon being informed of his impending deportation in pursuance to the provisions of section 10(1) of the Uganda Citizenship and Immigration Control Act Cap 313, appealed to the Minister through a letter dated 1st July 2022 contesting the decision and seeking the indulgence of the Minister to set aside the decision of the 2nd respondent.

### **Determination by the Court**

[10] 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 be considered by the court when handling applications for judicial review. It provides as follows;

"*7A. Factors to consider in handling applications for judicial review*

- *(1) 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.*

[11] It follows, therefore, that for a matter to be amenable for judicial review, it must involve a public body in a public law matter. The court must, therefore, be satisfied; first, that the body under challenge must be a public body whose activities can be controlled by judicial review; and secondly, the subject matter of the challenge must involve claims based on public law principles and not the enforcement of private law rights. See: **Ssekaana Musa, Public Law in East Africa, P.37 (2009) Law Africa Publishing, Nairobi**. It is, therefore, a requirement that the right sought to be protected is not of a personal and individual nature but a public one enjoyed by the public at large. In that regard, the duty of an applicant in an application such as this is to satisfy the court on a balance of probabilities that the decision making body or officer subject of his/her challenge did not follow due process in making the respective decisions or acts and that, as a result, there was unfair and unjust treatment of the applicant; which is likely to have an effect on other members of the public.

[12] In the present case, it is not contested that the 2nd respondent is a public body that is subject to judicial review. The first contention by counsel for the respondents is that the subject matter of the present challenge does not involve claims based on public law principles; rather it seeks to enforce private law rights for the grant of leave to remain in the country. Upon considering the claim by the applicant, it appears to me that although the purpose of his claim is to secure a stay into the country, the claim prima facie discloses public law matters. The applicant's allegation is that the decision to deport him was reached arbitrarily and without observing the principles of natural justice. If such an allegation were to be found to be true, it is a matter that has an effect on or the interest of other members of the public. An illegal or wrongful deportation of one person could create a systematic trend that affects others. I am therefore convinced that if the allegations by the applicant are proved, they would constitute unfair and unjust treatment of the applicant; which would be likely to have an effect on other members of the public. This makes the subject of the present challenge a public law matter and the application would be amenable for judicial review.

[13] The second contention by Counsel for the respondents was that the applicant did not exhaust the existing remedy within the law that governs the 2nd respondent as a public body. It was submitted by Counsel for the respondents that under section 10(1) of the Uganda Citizenship and Immigration Control Act, the applicant being aggrieved by a decision of the 2nd respondent had a remedy to appeal to the Minister within 30 days after the decision of the board was communicated to him; which he did not do. On the other hand, the applicant stated (in the submissions in rejoinder) that he appealed to the Minister by letter dated 1st July 2022.

[14] The position of the law, in line with Rule 7A(1)(b) of the Judicature (Judicial Review) Rules 2019, is that where an alternative remedy exists through statutory law or within an institutional framework, it is desirable that such alternative remedy is pursued first and exhausted before a party could bring an application for judicial review. The court's prerogative or inherent jurisdiction should not be invoked where there is a specific statutory provision which would meet the necessities of the case. See: *Ssewanyana Jimmy v Kampala International University, HCMC No. 207 of 2016*. It is also the law that for such a position to apply, the alternative remedy must be shown to be in existence and effective enough to the applicant before taking out judicial review. See: *Leads Insurance Company Ltd v Insurance Regulatory Authority, CACA No. 237 of 2015*.

[15] On the case before me, it is not contested that the relevant law provided the applicant with a right to appeal against the decision of the 2nd respondent to the Minister. The claim by the applicant that he lodged an appeal to the Minister is not borne out by any evidence. It is contained in the applicant's submissions in rejoinder which makes it a statement from the bar that is not admissible as evidence. In any case, no such letter was attached to prove that assertion. The applicant has, therefore, not shown that he exhausted the existing remedy that was legally provided for and available to him. On that account, the instant application would not be amenable to judicial review for failure to exhaust an existing remedy. However, for completeness and in the interest of justice, I will proceed to determine the other issues raised in the application.

#### **Issue 2: Whether the application raises any grounds for judicial review?**

[16] Judicial review is concerned not with the decision but 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 v Yustus Tinkasimmire & Others, CACA No. 208 of 2013* and *Kuluo Joseph Andrew & Others v Attorney General & Others, HC MC No.1 06 of 2010*.

[17] It therefore follows that the court may provide specific remedies under judicial review where it is satisfied that the named authority has acted unlawfully. A public authority will be found to have acted unlawfully if it has made a decision or done something: without the legal power to do so (unlawful on the grounds of illegality); or so unreasonable that no reasonable decisionmaker could have come to the same decision or done the same thing (unlawful on the grounds of unreasonableness or irrationality); or without observing the rules of natural justice (unlawful on grounds of procedural impropriety or unfairness). See: *ACP Bakaleke Siraji v Attorney General, HC MC No. 212 of 2018*.

[18] On the case before me, the decision challenged by the applicant is the cancellation of his dependent pass by the 2nd respondent. The allegation by the applicant is that the decision of the 2nd respondent was tainted with illegality, irrationality and procedural impropriety. I will consider each of the grounds independently.

# *The Ground of Illegality*

[19] Illegality has been described as the instance when the decision making authority commits an error in law in the process of making a decision or making the act the subject of the complaint. Acting without jurisdiction or ultra vires or contrary to the provisions of the law or its principles are instances of illegality. See: *Council of Civil Service Unions v Minister for Civil Service (1985) AC 375*. A public authority will be found to have acted unlawfully if it has made a decision or done something without the legal power to do so. Decisions made without legal power are said to be ultra vires, which is expressed through two requirements: one is that a public authority may not act beyond its statutory power; the second covers abuse of power and defects in the exercise. See: *Dr. Lam-Lagoro James v Muni University, HCMC No. 007 of 2016*.

[20] On the present case, it is not part of the applicant's allegation that the 2nd respondent did not have the legal power or jurisdiction to take the impugned decision. Neither is it alleged or proved that the 2nd respondent indulged in conduct that amounts to abuse of power. The application by the applicant therefore discloses no instance of illegality upon the allegations before the Court.

#### *The Ground of Irrationality or Unreasonableness*

[21] In judicial review parlance, 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. See: *Council for Civil Service Unions v Minister for Civil Service (supra).* Mubiru J. in *Dr. Lam-Larogo James v Muni University (supra)* 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.

[22] In the present case, it was not alleged or proved by the applicant that the decision taken by the 2nd respondent to cancel the applicant's dependent pass was unjustifiable or outrageous in its defiance of logic or of acceptable moral standards or outside a range of possible, acceptable outcomes which are defensible in respect of the relevant facts and the law. The complaint by the applicant concerns the procedure taken and the failure to accord him an opportunity to present his side of the story; which is a concern of procedural impropriety rather than irrationality. It was shown by the respondents that the decision to cancel the applicant's dependent pass was made pursuant to the applicant's breach of various listed provisions of the Uganda Citizenship and Immigration Control Act. This shows that there was justification and legal basis upon which the decision was hinged. The ground of irrationality is therefore not made out.

## *The Ground of Procedural Impropriety*

[23] It was submitted by Counsel for the applicant that the decision to cancel the applicant's dependent pass was made by the respondents without according him a fair hearing and an opportunity to be heard, prepare his defense and cross examine the complainant. The applicant stated that no evidence was presented by the complainant before the 2nd respondent that could be relied upon by the public body to reach the decision they did. The applicant further stated that he was only required to write a statement by the officers of the 2nd respondent.

[24] It was the submission by Counsel for the respondents that the Assistant Commissioner Inspection and Investigations of the 2nd respondent issued to the applicant a notice regarding the decision taken on his immigration status which was looked into by a responsible committee and the board of the 2nd respondent that is clothed with authority under Section 6(1) of the Uganda Citizenship and Immigration Control Act. Counsel stated that the decision was arrived at following a certain procedure adopted by the board and the applicant was given an opportunity to be heard.

## **Determination by the Court**

[25] Procedural impropriety has been defined to mean "the failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision." See: *Council of Civil Service Unions & Others v Minister for the Civil Service (supra)*. Under the law, 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 v Muni University (supra)*.

[26] In this case, the claim by the applicant is that he was not given a fair hearing before the board of the 2nd respondent made the decision to cancel his dependent pass. The applicant averred that he was only made to write a statement by the officers of the 2nd respondent; he was not given an opportunity to be heard, to prepare his defense or cross examine the complainant or her witnesses. It is submitted for the applicant that such amounted to breach of the principles of natural justice. For the respondents, it is argued that the 2nd respondent observed the procedure that is adopted by the board when dealing with matters such as the one herein in issue.

[27] In law, where the party aggrieved by the decision or action of a public body was summoned and appeared before the body, the court in judicial review would be required to examine the nature of the proceedings for procedural propriety and fairness. The nature of the proceedings is dictated by a number of considerations, including whether the public body has procedural rules established either by statute or within the internal mechanisms of the body; or whether the body only had recourse to the general requirements of the rules of natural justice.

[28] In the instant case, the uncontested evidence before me is that the applicant was called for a meeting at the 2nd respondent's office and asked to record a statement concerning his status in the country. The evidence by the respondents is that upon a complaint lodged by the applicant's wife, the 2nd respondent's officials carried out investigations to ascertain the allegations made against the applicant. The applicant was then invited for a hearing. He recorded a statement which was taken into consideration by the board of the 2nd respondent before reaching their decision.

[29] It ought to be noted that for a public body to adhere to the rules of natural justice, it does not have to conduct proceedings that are akin to a court hearing. The public body only has to take into account the provision of Article 42 of the Constitution 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. In order to satisfy that standard, the requirement under natural justice is that the person accused should know the nature of the accusation made against them; he/she should be given an opportunity to state his/her case; and the tribunal or public body should act in good faith. See: *Byrne v. Kinematograph Renters Society Ltd [1958]1 WLR 762*.

[30] On the case before me, the evidence is that the applicant was invited to the office of the 2nd respondent, the complaint was drawn to his attention and he was asked to make a written statement in reply. There is no allegation by the applicant that the 2nd respondent acted in bad faith and none is evident from the facts and evidence produced before the Court. I am satisfied, therefore, that the 2nd respondent observed the rules of natural justice when handling the complaint against the applicant and before arriving at the decision they did. As already stated, the present proceedings are not concerned with the merits of the decision reached by the 2nd respondent; but rather the process through which the decision was made. Where the court finds no procedural impropriety or unfairness, it cannot interfere with such a decision through exercise of its powers of judicial review.

[31] Upon the above premises, the applicant has not proved to the court on a balance of probabilities that the decision to cancel his dependent pass was reached with procedural impropriety or unfairness. The application also fails on this ground. As none of the grounds for judicial review has been proved by the applicant, issue two is answered in the negative.

# **Issue 3: Whether the applicant is entitled to the reliefs claimed?**

[32] Following from the above findings, the applicant has failed to satisfy the Court on any of the grounds for judicial review upon his application. Accordingly, the applicant is not entitled to any reliefs as claimed and the application is dismissed with costs to the respondents.

It is so ordered.

*Dated, signed and delivered by email this 13th day of June, 2025.*

**Boniface Wamala JUDGE**