[2024] UGHCCD 171

## 5 **THE REPUBLIC OF UGANDA**

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

**(CIVIL DIVISION)**

#### **MISC. CAUSE NO. 232 OF 2023**

**SSENYONJO ALI EDRIIS :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT**

#### 10 **VERSUS**

### **1. WAKISO DISTRICT LOCAL GOVERNMENT COUNCIL**

#### **2. NAJJA NASIIF ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENTS**

#### **BEFORE: HON. JUSTICE ESTA NAMBAYO**

#### **RULING ON A PRELIMINARY POINT OF LAW**

- 15 The Applicant, Ssenyonjo Ali Edriis, filed this application under **articles 42 & 43 (c) of the 1995 Constitution of Uganda, Sections 33, 36 & 38 of the Judicature Act and Rules 3, 3A, 6 & 7 of the Judicature (Judicial Review) Rules, 2009** against the Respondents seeking for; - **1. Certiorari to call to the High Court all decisions taken at the impugned Council meeting of the 1st Respondent chaired by the 2nd** 20 **Respondent and held on the 8 th day of August, 2023 which led to the suspension of the Applicant from the Council and committee sittings and quash the same on the grounds of the same being tainted with illegality, irrationality, unreasonableness and procedural impropriety.**

- **2. Mandamus to issue against the 2nd** 25 **Respondent directing him to reinstate the Applicant as the chairperson Finance, Planning & General Duties committee of the 1st Respondent.** - **3. Prohibition restraining the Respondents from calling for and appointing another person as a Chairperson Finance, Planning & General Duties committee when** 30 **the tenure of the Applicant is still due.** - **4. Injunction to permanently restrain the Respondents jointly and severally from keeping the Applicant out of the office of chairperson Finance, Planning & General Duties Committee of the 1st Respondent.** - **5. A declaration that the proceedings of the Council meeting of the 1 st Respondent held on the 8th day of August, 2023 presided over by the 2nd** 35 **Respondent and the resultant decisions and resolutions of suspending the Applicant are illegal, ultra vires, irrational and unreasonable and should be quashed and set aside.** - **6. A declaration that the 2nd Respondent who is the speaker in the 1st Respondent council did not follow the procedure while suspending the Applicant from the** 40 **council.** - **7. An order against the Respondents to pay general damages of Ugx. 400,000,000/ to the Applicant.**

## **8. An order that the Respondents pay the costs of the application.**

The grounds of this application are set out in the affidavit in support of the application 45 sworn by Ssenyonjo Ali Edriis, but briefly are: -

- **i. That the Applicant is an adult male Uganda of sound mind, a Councillor who was voted and represents the people of Nsangi/Kisozi Wakiso District Council. He is the Chairperson Finance Planning & General Duties committee and in which capacity he brings this application.** - **ii. That the 1st** 50 **Respondent is a corporate person and the governing body of Wakiso District.**

- **iii. That the 2nd Respondent is a councillor representing Kawanda Ward Nansana and the speaker of the 1st Respondent's council** - **iv. That the Applicant was voted as councillor to represent the people of** 55 **Nsangi/Kisozi in Wakiso District during the 2021 general elections.** - **v. That consequently, the Applicant was nominated and voted as the chairperson of the finance and planning committee of the 1st Respondent for a period of two and half years, effective the 01/06/2021 with overall responsibilities as well as general obligations and specific scope of duties.** - **vi. That the Applicant immediately started facing resistance from the 1st and 2nd** 60 **Respondent and other members of the council when they would pass resolutions in the committee regarding suspicious dealings in finance obtained from revenue collections and taxes obtained in the names of the 1st Respondent by unsuspecting members which was meant for service to the public but the same would not be implemented by the 2nd** 65 **Respondent.** - **vii. That the 2nd Respondent official became openly hostile towards the Applicant and has always interfered in the Applicant's conduct of committee businesses and disregarded implementation of the committee recommendations.** - **viii. That the 1st Respondent deliberately refused to give the Applicant office and he** 70 **has been operating from his personal car despite several requests yet all other chairpersons were given office to execute their duties.** - **ix. That the Applicant on several occasions raised issues on the abuse of money obtained on behalf of the 1st Respondent by some members through illegal tax collections from the population but the same was ignored by the responsible** 75 **officers to date.** - **x. That on 1st August, 2023, the Applicant together with other district councillors were invited by the Respondents and attended the district council plenary session which was eventually held on the 8th August, 2023, without reasons to why it had been postponed to that specific day.**

Page **3** of **11**

- 80 **xi. That the agenda for the day included item number seven (7) "Presentation, Discussion and Approval of Sectoral Committee Reports to Council."** - **xii. That when the Applicant's turn to present the report came, the 2nd Respondent prevented him from presenting the report on the unverified allegations made by one councillor that the Applicant had made alterations to the report he was yet** 85 **to present by including an item which was not part of the original report.** - **xiii. That on the basis of this allegation the Applicant was charged with providing false information to council, altering the finance committee report to council and abuse of office under rule 53 (1) of the standard Rules of Procedure (SROP), 2019.** - 90 **xiv. That the Applicant was never given any chance to react to the allegations against him in the council or to present the said Report to the Council.** - **xv. That the 2nd Respondent high-handedly and shockingly proceeded to pronounce the Applicant guilty of abuse of office on a report that had not been present/adopted and immediately sentence him to a suspension for two full** 95 **council meetings and two committee meeting without pay and without any due process and formal proof.** - **xvi. That the Applicant was suspended on the basis of a report which had not been adopted nor become part of the record of Council proceedings.** - **xvii. That the council meeting held on the 8th day of August, 2023 appears to have** 100 **been called with intention to have the Applicant suspended so that he would miss out on the nomination and re-election as the chairperson of the finance committee given that the 2nd Respondent knew that nomination and re-election of the new chairpersons of the different Sectoral Committees was to take place in the subsequent Council meeting.** - **xviii. That the reason the 2nd** 105 **Respondent suspended the Applicant from Council is unfounded and falls short of the national laws and regulations on handling/conducting council business. The 2nd Respondent reasoned that the**

Page **4** of **11**

**Applicant was guilty of abuse of office without a fair trial to determine his guilt or innocence as required by law and rules of natural justice. The 2nd Respondent** 110 **acted as complainant, prosecutor and judge in his own case.**

- **xix. That the purported suspension of the Applicant was in bad faith, illegal, irregular and without due regard to natural justice because the 1st Respondents did not even allow the Applicant to present the report from the committee when his turn came. But only for the 1st Respondent to high handedly and shockingly proceed** 115 **to pronounce the Applicant guilty of abuse of office and immediately sentence him to a suspension for two full council meetings and two committee meeting without pay.** - **xx. That the Applicant has been unfairly suspended by the Respondents without any clear reasons.** - 120 **xxi. That the circumstances as highlighted herein above did not allow the Applicant to be protected by equity and natural justice and holds the Respondents responsible.** - **xxii. That the Applicant had at the time of the unfair and illegal suspension taken out a loan from Centenary Bank with a letter of undertaking/recommendation from the 1st** 125 **Respondent but he is unable to pay back the said loan since the Respondents stopped paying him and in circumstances he has incurred expenses in preparation and restructuring of the loan for which the Respondents should be held liable to compensate him in damages.** - **xxiii. That the Respondents received several requests from the Applicant to lift the** 130 **impugned council resolution in order to allow due process to take place but the same were ignored.** - **xxiv. That the Respondents on the 18th October, 2023 held another council plenary reconstituting the membership of the standing committees where all other chairpersons retained their positions save for the applicant who they have re-**135 **assigned to the Gender & Community Based Service Committee.**

Page **5** of **11**

- **xxv. That by reason of the Respondents' illegal, unreasonable, biased, selfish actions and decisions, and which has caused him to suffer mental anguish and injury for which he claims punitive damages of Ugx. 100,000,000/= and general damages of Ugx. 400,000,000/=.** - 140 **xxvi. That the Applicant has missed opportunities and was hoping to complete his tenure as the chairperson finance and planning committee and therefore it is only fair that this Court orders that the Applicant's financial emoluments both unpaid and for the remainder of his tenure as chairperson finance and planning committee amounting to Ugx. 10,000,000 be processed and paid to him.** - 145 **xxvii. That the Applicant has no alternative remedy other than challenging the decision of the impugned council meeting of 8th August, 2023 so that the illegal suspension is reversed.** - **xxviii. That this Honorable Court has jurisdiction to grant the orders sought here in and it is in the interest of justice that the Applicant's application be allowed and the** 150 **declarations and orders sought be granted as prayed with costs.**

The Respondents filed their affidavits in reply opposing this application.

# **Back ground to the application.**

The brief background to this application is that the Applicant is Chairperson of the Finance and Planning Committee of the 1st Respondent. His term of office runs for a period of two and half years, effective the 01/06/2021, while the 2nd Respondent is the Speaker of the 1st 155 Respondent's council.

On the 8th August, 2023, the Applicant was suspended during a Council meeting of the 1st Respondent which was chaired by the 2nd Respondent. It is the Applicant's claim that his suspension was tainted with illegality, irrationality, unreasonableness and procedural 160 impropriety, hence this application.

Page **6** of **11** # **Legal representation**

Learned Counsel Wamasebu Micheal represents the Applicant while James Katono is for the Respondents.

165 When the matter came up for mention, Counsel for the Applicant raised a preliminary objection that the Respondents filed their affidavits-in-reply out of time without leave of court. Counsel were directed to file written submissions on the PO. They have both complied as directed.

# **Submissions**

- 170 Counsel for the Applicant relied on Orders 8 Rule (1), Order 12 Rule 3 (2) and Order 51 Rule 6 of the Civil Procedure Rules and the case of **Stop and See (U) Limited –v- Tropical African Bank, HCMA No. 333 of 2010** and explained that the Respondents were served with the application on the 15th/11/2023 and as such they ought to have filed their affidavits- in-reply on the 5 th/12/2023. That the Respondents instead filed their replies on the 29th 175 /01/2024 after 73 days from the time of service of the application upon them. That - there is no reason given by the Respondents for the delayed replies. Counsel submitted that actions such as the ones exhibited by the Respondents shouldn't be condoned by Court because they amount to abuse of the court process and are aimed at defeating the ends of justice. That the Respondents had the option to seek for leave of - 180 Court to extend time within which to file their replies under Order 51 Rule 6 of the CPR but they opted not to and instead they chose to smuggle in their replies to court out of time. Counsel prayed that in view of the above, the Respondents' affidavits- in -reply be struck off the court record with costs so that the application proceeds ex-parte.

# **Respondents' submissions**

In their reply, counsel for the Respondents also raised a preliminary objection that the 2nd 185 Respondent is not one of the bodies envisaged in judicial review proceedings.

Counsel did not make any submissions on this objection.

In regard to the objection raised by Counsel for the Applicant that the Respondents filed their affidavits-in-reply without leave of Court, Counsel for the Respondents submitted that

- 190 the timelines applicable for filing a written statement of defence are not the same as those for filing of affidavits-in-reply. He referred this Court to the case of **Dr. Lam-Lagoro James –v- Muni University, MC No. 7 of 2016** and submitted that affidavits are evidence which a Respondent relies on to defend their case and sometimes the Respondent may require time to organise his/her case, which cannot be done within the 15 days. - 195 Counsel emphasized that in the present case, the Respondents' affidavits –in -reply which is the evidence to be relied on contain numerous annextures including council minutes which required preparation, photographs and other records which had to be retrieved from police station and other documents that were not readily available and recordings that required transcribing. - 200 That the above notwithstanding, this is a case about the conduct of a District Council's business and involves Public Affairs and that as such, it's in public interest that all sides are heard on merit even if they replied late. He relied on Sections 96 & 98 of the CPA and Art. 126 (2) (e) of the Constitution and prayed that this court hears this application on the merits so that the ends of justice are achieved.

#### 205 **Rejoinder**

In rejoinder, Counsel for the Applicant submitted that the decision in **Dr. Lam-Lagoro James –v- Muni University HCMC 7 of 2016** is distinguishable from the instant application. That the Respondents in this application were at the forefront and had access to all the necessary information, facts and documents needed to make their reply in time but they 210 failed to do so. That the Respondents ought to have sought leave of Court to extend time to file their affidavits in reply under Order 51 rule 6 of the CPR than smuggling it improperly into the Court record. He prayed that the objection be over ruled and the affidavits in reply be struck off the court record so that the application is heard ex-parte.

In regard to the objection that the 2nd Respondent is not one of the bodies envisaged in 215 judicial review proceedings, Counsel for the Applicant relied on Rule 7A (1) (c) of the Judicature (Judicial Review) (Amendments) Rules, 2019 which provides that while considering applications for judicial review, the Court shall consider and satisfy itself that

the matter involves an Administrative Public body or official. He explained that a Speaker of a Local Government Council is a Public Official tenable to judicial review. He prayed that 220 this objection be over ruled.

#### **Analysis**

On the objection that the 2nd Respondent is not amenable to judicial review, **Article 42 of the 1995 Constitution of Uganda** provides that;

"Any person appearing before any **administrative official or body** has a right to be treated

225 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." **(underlining is mine for emphasis).** I have also looked at Rule 7A (1) (c) of the Judicature (Judicial Review) (Amendment) Rules, 2019, cited by Counsel for the Applicant. I agree with Counsel's submission.

Under paragraphs 14, 15 and 20 of the 2nd Respondent's affidavit -in –reply, he admits that 230 the Applicant appeared before the District Council sitting that he was chairing and he suspended him. It is that administrative decision by the 2nd Respondent that the Applicant seeks to challenge before this court. This means that the 2nd Respondent was an administrative official and his actions can be challenged under judicial review. I therefore find no merit in the preliminary objection raised by Counsel for the Respondents and do 235 hereby overrule it.

In regard to Counsel for the Applicant's objection that the Respondents' affidavits in reply were filed out of time,

# **Order 8 rule1 (2) of the CPR** provides that; -

"Where a defendant has been served with a summons in the form provided by rule 1(1)(a)

served on to the Defendant as provided under Order 5 rule 1 (1) (a) of the CPR, the

240 of Order V of these Rules, he or she shall, unless some other or further order is made by the court, file his or her defence within fifteen days after service of the summons." My understanding of the above provision of the law is that after summons have been Defendant must file his or her defence within 15 days from the date of being served with

245 the suit, but the court may, for sufficient reason, extend the time prescribed by the rules. Rules of court provide a time table within which certain steps ought to be taken to avoid delays.

In **Kaawa James & Anor –v- Kabodi Daniel MA No. 101 of 2019,** it was noted that court may for good cause grant an extension of time within which a party can file its pleadings 250 out of time. That the discretion to grant may be exercised so that the suit or matter is heard on merits and the dispute is settled.

In this case, the Respondents have not shown cause as to why court should grant them leave to file their affidavits in reply out of time.

Counsel for the Respondents argued that this being a public interest case, justice will be 255 served better when the matter is heard interparty and that no injustice would be caused to the Applicant since the matter has not yet been heard. He relied on S. 96 & 98 of the CPA and Article 126(2)(e) of the Constitution.

# **In the case of Kasirye Byaruhanga & Co. Advocates –v- Uganda Development Bank, SC Civil Application No. 2/97, it was held that;**

260 '...a litigant who relies on the provisions of Article 126 (2) (e) of the Constitution must satisfy the Court that in the circumstances of a particular case before the Court it was not desirable to pay undue regard to the relevant technicality. Article 126 (2) (e) is not a magic wand in the hands of defaulting litigants."

In **Utex Industries Ltd –v- Attorney General, SCCA No. 52 of 1997** the Court noted that;

- 265 "... we are not persuaded that the Constituent Assembly Delegates intended to wipe out the rules of procedure of courts by enacting Articles 126 (2) (e). Paragraph (e) contains a caution against undue regard to technicalities. We think that the article appears to be ^a reflection of the saying that rules of procedure are handmaidens to justice - meaning that they should be applied with due regard to the circumstances of each case." **(the underlining** - 270 **is for emphasis.)**

I don't see how, in this case, Article 126 (2) (e) can assist the Respondents who sat on their rights for over 73 days without seeking leave of court to file their affidavits-in -reply out of time.

Therefore, I uphold the preliminary objection raised by Counsel for the Applicant and strike 275 off court record the affidavits-in reply filed out of time without leave of court, with costs.

I so order

# **Dated, signed and delivered by mail and ECCMIS on the 17th October, 2024.**

**Esta Nambayo** 280 **JUDGE**

**17th /10/2024.**