[2025] UGHCCD 28

## **THE REPUBLIC OF UGANDA**

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

# **[CIVIL DIVISION]**

## **JUDICIAL REVIEW CAUSE NO. 0049 OF 2024**

## **PHEONA NABASA GLADYS WALL::::::::::::::::::::::::::::::::::::APPLICANT**

## **VERSUS**

#### **1. UGANDA LAW SOCIETY**

**2. MOSES MWASE ::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENTS**

#### **BEFORE: HON. JUSTICE SSEKAANA MUSA**

#### *RULING*

This application was brought under Section 14, 33 and 36 (1) of the Judicature Act Cap 13, Rules 3 of the Judicature Judicial Review Rules 2009 and Regulation 6 of Uganda Law Society (Elections) Regulations, 2016 for the following Orders;

- *1. A declaration that the actions and decisions of the Respondents and their agents in omitting the applicant's name from the final nomination list for the representative of Uganda Law Society to Judicial Service Commission was unlawful and Illegal.* - *2. A declaration that the respondents were functus officio after nominating the applicant and did not have legal basis to omit the applicant's name from the final nomination list.* - *3. An Order of Certiorari be issued against the respondents quashing their impugned decision to exclude the applicant from the list of duly nominated candidates for the elective position of the respondent's Representatives to the Judicial Service Commission.*

- *4. An Order of Mandamus be issued against the Respondents directing them to reinstate the name of the applicant on the list of the duly nominated candidates to vie for the elective position of the Respondent's Representatives to the Judicial Service Commission.* - *5. An Order of prohibition be issued against the 1st respondent restraining it from conducting elections scheduled for the 17th of December 2024, without duly complying with the Uganda Law Society (Regulations), 2016.* - *6. An Order of Mandamus directing the respondents to hold elections of Uganda Law Society representatives to Judicial Service Commission in compliance to the principles of equity, neutrality and in accordance with the Uganda Law Society Act and its rules.* - *7. An Order restraining the respondents' officials and agents from publishing and circulating defamatory, derogatory and or misleading statements against the applicant.* - *8. An order that the respondents pay general damages for inconvenience, reputational damage and mental and psychological anguish suffered by the applicant who is a respected public figure and former president of the Uganda Law Society.* - *9. Costs of the application be provided for.*

The grounds of this application were set out in the Notice of Motion and affidavit in support of the application sworn by the applicant dated 06th December 2024 which briefly were;

- 1. That on the 26th day of November 2024, the 1st respondent issued/published a notice of election of Judicial Service Commission (JSC) Nominees of the ULS, to be held on the 17th of December 2024, wherein the respondent invited potential candidates to submit the prerequisites requirements for their nomination for the said elections. - 2. That the head of the 1st respondent which is the appointing authority of the 2nd Respondent in this matter, (the President of the

Uganda Law Society) started a social media attack on the applicant, stating publicly that he was rejecting her as a candidate for the same position.

- 3. The applicant duly complied with the said notice, and on the 3rd December 2024, she duly submitted her nomination documents, which were verified by Elections Committee of the 1st respondent headed by the 2nd respondent, and duly certified that she was eligible for the said position, whereupon she was issued with a duly signed nomination form, and her name was entered on the list of nominated candidates to view for the position of the 1st respondent's representative to the Judicial Service Commission. - 4. That the applicant was informed of the 2nd respondent on phone that there was complaint against her nomination and she immediately returned to the nomination room at 7:00pm where the alleged complainant was called and the same denied having made such a complaint, the applicant proceeded with her campaigns. - 5. That, however, and to the dismay of the applicant, on the same evening of the 3rd day of December 2024, the president of the 1st respondent which is the appointing authority of the Elections Committee headed by the 2nd respondent circulated a list of nominated candidates bearing the signature of the 2nd respondent and on the official letterhead of the 1st respondent on his personal X platform. The List did not include the applicant's name. - 6. That the applicant reached out to the Elections Committee headed by the 2nd respondent who confirmed that it was indeed their document but offered no explanation as to why she was excluded from the list of duly nominated candidates for the said position. - 7. That on the 4th day of December 2024 the applicant wrote to the respondents complaining against the omission of her name from the final nomination list after nominating her but she received no response.

- 8. That the president of the 1st respondent in several X-post wrote; "@pheonawall, eat bog" and another post, he wrote "It's over bitch" and in all he was attaching the purported list of nominated candidates all of which excluded the applicant. - 9. That the applicant prior to her nomination received attacks on social media from the 1st respondent's president who is supposed to be a neutral in this process and the same attacks continued. - 10. That all processes were conducted without giving the applicant a hearing and was never given any clear explanation as to why she was omitted from the list published by the respondent of the nominated candidates for the said position and has only learned of them through rumours on social media platforms. - 11. That the conduct of the respondent's election committee was irregular, illegal, full of connivance, bias and contrary to principles of natural justice. The decision of the Elections Committee was irrational since it was reached without according the applicant a fair hearing.

The respondents opposed this application through an affidavit sworn by Samuel Kariaghe a Member and Vice Chairperson of the 1st respondent's Elections Committee which briefly stated;

- 1. That the Elections Committee of the 1st respondent discharges its statutory mandate independently of the elected officials of the 1st respondent including its president. - 2. That the applicant was given a nomination certificate by the Elections Committee but she was excluded from the final list of nominated candidates once it was established that she did not qualify in law and the said certificate was issued to her in error. The said certificate of nomination was interim in nature pending completion of nomination and communication of the final list of nominated candidates communicated to membership did not include her name.

- 3. That when the Elections Committee established that the applicant had only 14.6 years standing as on Tuesday 3rd December, 2024 instead of 15 years, she was immediately notified that her nomination stood to be cancelled. The applicant demanded for a formal hearing from the Elections Committee and the same took place on 3rd December 2024 from 7:30pm to 8:00pm in presence of the Applicant and her Husband, Gerald Ambrose Wall. The Committee ruled that the applicant had been nominated in error as she was not duly qualified on account of not having atleast 15 years standing as an Advocate. - 4. That applicant's advocates wrote to the chair of the Elections Committee on 4th December 2024 protesting the disqualification and received a response dated 6th December 2024 reiterating the position that she was not qualified. By 8:00pm on 3rd December 2024, the Elections Committee had already communicated. That the elections committee respected the applicant's rights and expressed its sympathies to her over her inadvertent nomination which was clearly in error. - 5. That the applicant was supposed to lodge a complaint or petition the Election Appeals Committee in accordance with Regulation 19(5) of the Uganda Law Society (Elections) Regulations, 2016. The Elections Committee did not receive a contrary directive from the appeals committee. - 6. That the 2nd respondent is the Chairperson of the Elections Committee of the 1st respondent and there is no specific allegation against him of a personal nature as he merely discharged his official roles hence his joinder as a party, has no merit. - 7. That it is fit, fair equitable and in the interest of justice that orders sought in this application be denied and rejected with costs.

The applicant was represented by *Robinson Wamani* while the respondents were represented by *Jude Byamukama, Lillian Drabo, Samuel Kakande,*

# *Abubaker Ssekanjako, Emmanuel Chandia Ms Marial Nansukusa and Mahmood Kakeeto.*

The following issues were raised for determination by the applicant;

- *Whether the instant application merits grounds for judicial review?* - *Whether the applicant's right to a fair hearing was violated?* - *Whether the 1st respondent's Elections Committee became functus Officio after nominating the applicant?* - *Whether the 2nd respondent erred in applying a constitutional provision meant for the appointment process to the nomination process?* - *Whether the applicant is entitled to the remedies sought?*

The parties were given directions to file submissions within a given timeline. The applicant's counsel filed but the respondent's counsel failed or refused to file by the scheduled date. They attempted to file out of time and this court has not considered the same.

## *Preliminary Objections*

The court received a letter dated 23rd December 2024 from Legal Aid Project of Uganda Law Society; *Application for Recusal*. The said letter was allegedly written on behalf of Uganda Law Society.

The court record does not have any party represented by Legal Aid Project and there is no notice of instructions or notice of change of advocates filed in court. This court did not find any sufficient reason to respond to a letter written or application for recusal written by a firm or body which is not on court record.

The said letter bears a signature but bears no name of the person who executed the same on behalf of Uganda Legal Aid Project. Secondly, the said letter was uploaded on the ECMISS system by *JByamukama & Co. Advocates*. The application for recusal is suspicious.

# *Determination Whether the instant application merits grounds for judicial review?*

The applicant's counsel submitted that the 1st respondent's president and Elections Committee show blatant disregard for sections 4(1)(b) and 4(2) of the ULS Elections Regulations and they demonstrate abuse of the powers bestowed upon them by the ULS Election regulations and should therefore be subjected to courts supervisory powers and jurisdiction

The applicant further submitted that she was denied a right to fair hearing and that regulation 6 of the Uganda Law Society (Elections) Regulations which requires the Elections Committee to conduct the process in a fair, democratic and transparent manner.

It was contended that there was unfairness in trying to raise a non-existent complaint, in cancelling her nomination without a hearing and in communicating the final list on his X platform of the 1st respondent which was accompanied by expletives denigrating the applicant. The same tweets were retweeted by the 1st respondent's official X page. The applicant was never given any such opportunity to prepare her defence for herself before it was decided arbitrarily.

The applicant was not given a fair and proper notice of issues intended to be raised against her and the decision to denominate the applicant was done under a shroud of secrecy. There was no evidence (minutes, resolutions, attendance list or submissions) that demonstrates that there a hearing before the decision leading to the alleged cancellation of her nomination. The applicant was called on phone to be informed about as official complaint and she went to find out the complaint and she never found one and left the place.

## *Analysis*

**Rule 3 of the Judicature (Judicial Review) (Amendment) Rule, 2019** defines *judicial review as the process by which the high court exercises its supervisory jurisdiction over the proceedings and decisions of subordinate courts, tribunals, and other bodies or persons who carry out quasi-judicial functions or who are charged with the performance of public acts and duties.* In Uganda, the principles governing Judicial Review are well settled. Judicial review is not concerned with the decision in issue but with the decision making process through which the decision was made. It is rather concerned with the courts' supervisory jurisdiction to check and control the exercise of power by those in Public offices or person/bodies exercising quasi-judicial functions by the granting of Prerogative orders as the case my fall. It is pertinent to note that the orders sought under Judicial Review do not determine private rights.

Judicial review is premised on allegations that a public body failed to comply with law and applicable rules of fairness or natural justice or arrived at a decision so unreasonable that no court, tribunal or public authority properly directing itself on the relevant law and acting reasonably could have reached it. *(See: Arua Kubala Park Operators and Market Vendors' Cooperative Society Limited vs. Arua Municipal Council MC No. 3 of 2016)* The purpose of judicial review is to ensure that the individual is given fair treatment by the authority to which he or she has been subjected to. **(See** *Chief Constable of North Wales v Evans [1982] 3ALL. E. R 141*

The 1st respondent through the 2nd respondent set dates to have elections for representatives of Uganda Law Society to Judicial Service Commission upon with a road map to be followed in the entire process.

## *Regulation 16(1) of the Uganda Law Society (Elections) Regulations 2016* provides that;

*"The Elections Committee shall appoint the days for the determination of the candidates for the elective offices which shall be atleast twenty-one days before the date of the general meeting convened for the purposes of elections."*

The respondents set the date of elections to be 17th December 2024 and the candidates were nominated on 3rd December 2024 and in simple computation this was 14 days (two weeks) instead of 21 days/ three weeks.

The decision-maker must understand correctly the law that regulates his/her decision-making power and must give effect to it. But 'while respect must be accorded to agencies entrusted by Parliament with the task of administering legislation, it would not be conformable with the rule of law for them to be given free rein to interpret legislation in whatever manner they wished. See *Council of Civil Service Unions v Minister for Civil Service [1985] AC 374; R v Monopolies and Mergers Ex.p South Yorkshire Transport Ltd [1993] 1 WLR 23*

Whenever statutory words require things to be done as a condition of making a decision, especially when the form of words require something "shall" be done, raise an inference that the requirement is "mandatory" or "imperative and therefore the failure to do the required act renders the decision unlawful. The decision to set a date for election less than the stipulated time of twenty-one days was illegal and contrary to the Uganda Law Society Regulations 2016. This rendered the Extra General Meeting which was slated for 17th December 2024 to be illegal.

Secondly, the applicant challenges the decision of the respondent to denominate her without according her a fair hearing. An analysis of the events in this case shows that the respondent called the applicant on phone to be informed about the decision to denominate her and she went up to the 1st establish about decision to be denominated.

The respondent informed the applicant that there was a complaint against her nomination and she went to establish the nature of the complaint. To her surprise there never such a complaint upon which she was denominated and the person they had alleged to have made a complaint denied and indeed it never existed. The 2nd respondent engaged in a 'casual talk' or discussion about her lack of 15 years standing. The applicant decided to leave the venue and it is this appearance which the respondent have termed a hearing between 7:30pm to 8:00pm.

*Regulation 6 of the Uganda Law Society (Elections) Regulations 2016* provides that;

*The Elections Committee shall conduct the elections of the Society in a fair, democratic and transparent manner that results in the process and the results by the candidates and members of the Society.*

The respondents are enjoined to uphold the principles of fairness while conducting the elections in order to have legitimacy and acceptance of the process. The casual manner of denominating or disqualifying candidates should not be encouraged without due process. Fairness is required whenever the exercise of power adversely affects and individual's rights or interests like those of the applicant in this matter

Whether fairness is required and what is involved in order to achieve fairness is for the courts as a matter of law. The issue is not one for discretion of the decision-maker. The issue is not whether no reasonable body would have thought it proper to dispense with a fair hearing. The court is the arbiter of what is fair. See *R v Panel on Takeovers and Mergers Ex p Guinness [1990] QB 146.*

The respondents tried to make up a semblance of a hearing or fair hearing but it fell far short of the standard of fairness expected of an election body which hold the key to have a transparent electoral process from nomination to elections of the successful candidates. According to the respondent, the applicant was called on her phone and she appeared at 7:30pm with her husband Ambrose Wall and by 8:00pm left with a decision of denominating her from the process. This court was not availed with bare minimum of the documents to evaluate the process leading to the decision to denominate the applicant. It appears the calling of the applicant was a mere formality to validate their predetermined decision without any intention of giving the applicant a fair hearing.

The principles of fairness are not applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. An essential factor of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. The courts will supplement the law to ensure that the decision-maker operates fairly. See *R v Secretary of State for the Home Department Ex p Doody [1994] AC 531*

Indisputably, it is a settled position that if the action or decision is arrived at through flawed procedures or is perverse or is such that no reasonable body of persons, properly informed could come to or has been arrived at by the authority misdirecting itself by adopting a wrong approach or has been influenced by irrelevant or extraneous matter the court could be justified in interfering with the same. The courts ought to control the exercise of discretionary power vested in the decision maker as the ultimate arbiter of the purpose of a statute as well as of relevance and irrelevance of various considerations that go into the making of a decision by the administration. See *Secretary of State for Education and Science v Tameside MBC [1977] AC 1014*

The rule of law has proved itself to be elastic enough to be able, particularly in recent years, to act as a significant constraint upon exercise of administrative discretion in different circumstances. The major justification for constraining the exercise of official power is to promote the core institutional values of legality, certainty, consistency. Many decisions like the present decision made by the respondent are challenged for unreasonableness because it offends the values of rule of law.

The decision of the respondent to denominate the applicant by contending that she was nominated in error without according her a hearing was not supported by any evidence. It is clear the applicant was not invited to explain her alleged inadequacy of 15 years standing through a fair hearing but rather was merely invited for purposes of relaying their decision to denominate her. The said decision of the respondent was irrational and perverse since this was a finding of fact to a material matter which was not supported by any evidence. Decisions made or based on clearly erroneous inferences of fact are errors of law and fact which thus makes a decision unlawful. See *Miftari v Secretary of State for the Home Department [2005] EWCA Civ 481*

There is a general duty to treat every person who appears before any administrative body like the respondent fairly. Article 42 enjoins the respondent to treat every person who appears before it fairly. Therefore, whenever a public function is being performed there is an inference, in absence of an express requirement to the contrary, that the function is required to be performed fairly.

The respondent made a decision to denominate the applicant without according her a fair hearing or against the principles of fairness or natural justice. Such a flawed decision was illegal and irrational for breach of rules of fairness.

Secondly, the 2nd respondent acting as the Chairperson of the Elections Committee attempted to reverse a decision already made. The decision to revoke the earlier decision to nominate the applicant seems to trigger the principle of *functus officio* in administrative law. The rule of law holds that individuals should be entitled to rely on decisions lawfully made and to plan their lives around such decision. The applicant ought to be insulated at least to some degree of injustice that would result from the sudden change of mind on the part of the respondents.

These considerations of certainty, fairness and legality help to explain why official decision-makers are at common law to be *functus officio* once a decision has been made. According to this doctrine, an official who has once 'discharged his official function' by making a decision is unable to change his mind and revoke, withdraw or revisit the decision.

The *functus officio* doctrine is not an absolute one, in certain circumstances our law recognizes that a decision-maker may be justified in altering or rescinding its own decision., typically where the decision turns out to have been induced by fraud or based on non-existing jurisdiction. They may exercise their powers anew in different situations, and not to revisit or revoke their existing decision whenever they like. The more obvious the illegality, the more absurd or inefficient it seems not to allow an administrator to vary or revoke it, thus forcing the decision-maker or someone affected to go to court to have the flawed decision set aside. But against this consideration, the rights and expectations of other parties involved must be examined to ensure fair treatment.

The *functus officio* doctrine applies to final decisions, so the decision is revocable before it becomes final. The respondent's attempted to get in this exception by contending that the decision to nominate the applicant was in the interim. This court does not agree with that contention, since the applicant was duly nominated and was given a Certificate to confirm her nomination was duly concluded. A decision-maker like the respondent cannot be entitled to revoke the decision in the absence of statutory authority to do so and more so with a proper hearing.

The courts should be able to allow a decision-maker to correct small technical errors and 'mere slips'. It is sensible and desirable for administrators freely to correct these and be able to clear up ambiguities in their decisions provided, of course, that the amendment or clarification does not amount to variation or revocation in substance.

The respondents were in error to purport to revoke the decision to nominate the applicant since they were *functus officio* and there is nothing the law which empowers them to revisit their decision to nominate a candidate. They ought to be thorough in the nomination process to avoid such haphazard decisions which may erroneous or be clouded with mistakes and ambiguities/vagueness.

## *What remedies are available?*

This court issues the following orders:

- *1. An Order of Certiorari is issued quashing the decision of the respondents to exclude the applicant from the list of duly nominated candidates for the elective position of the respondent's Representatives to the Judicial Service Commission.* - *2. An Order of Prohibition forbidding the officials of the 1st respondent from publishing and circulating defamatory, derogatory and misleading statements against the applicant and interfering with the election process.*

*3. An Order of declaration that the respondents were functus officio after nominating the applicant and did not have legal basis to omit the applicant's name from the final nomination list.*

The applicant is awarded costs of the application.

I so Order.

*SSEKAANA MUSA JUDGE 14 th February 2025*