[2024] UGHC 422

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE

## **MISCELLANEOUS CAUSE NO.41 OF 2023**

### 1. SAM WALUFU

2. MAGOMBE JOHN MALULU

3. MASAWI ROSE NEKAMBI ::::::::::::::::::::::::::::::::::::

### **VERSUS**

BUSOBA SUB-COUNTY ....................................

## **BEFORE HON. JUSTICE LUBEGA FAROUQ**

## **RULING**

# 1. Introduction

- 2. This application was brought by way of notice of motion under Articles 27, 28 (1), 29, 42, 44 (c) and 50 of the Constitution of the Republic of Uganda, section 38 of the Judicature Act Cap 13, section 98 of Civil Procedure Act and Civil procedure Rules S.1 No 71-1, rules 3 (1) (a) & (b), 3 (2), 6 (1) & (2) and rule 7 of the Judicature (Judicial Review) Rules SI No.11 of 2009 as amended, the Local Government Act Cap 243, Standing Order Rules of Procedure for Local Government Councils in Uganda and the Local Government Councils Regulations for orders that- - (a) an order of certiorari does issue against the decision of the Respondent suspending the Applicants from attending the council meeting be quashed; - (b) an order of mandamus directing the Respondent to reinstate the Applicants as councilors to represent their parishes and pay all their benefits and allowances from day one of suspension; - (c) a declaration that the Respondent's decision, suspending the councilors on 6^th October 2023 was illegal, unconstitutional, unjustified, biased and

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is against the principles of natural justice thus riddled with procedural impropriety; and

(d) an injunction does issue restraining the Respondents, whether by themselves or through other person or agencies, not to suspend the Applicants from their electoral duties, an award of punitive, general and exemplary damages plus costs of the application.

# 3. Background

- 4. The Applicants are duly elected councilors in Busoba Sub-county since 2021. During the council meeting held on 6^th October 2023, the Applicants were suspended by the speaker of the Respondent which they consider to be illegal, unconstitutional, unjustified, marred with biasness and against the principle of natural justice, riddled with the procedural impropriety because the said decision was wrongly enforced since they were not given a fair hearing and the same is against the rules of procedures of local government council regulations. Hence, the applicants are suffering irreparable harm through violation of their rights to represent the people who entrusted them with their votes. - 5. The Respondent denied all the claims of the Applicants and stated that the Applicants have never been suspended by the Respondent as alleged. - 6. This application was supported by the affidavits of the Applicants SAM WALUFU, MAGOMBE JOHN MALULU and MASAWI ROSE NEKAMBI which have been relied upon in the determination of this application and briefly state that - a. They are councilors duly elected in the year 2021 to represent Bunanimi Parish, Special Interest Group of Male Elderly and Special Interest Group of Female Elderly in Busoba Sub-County respectively; - b. They have represented in those respective positions in Busoba Sub-County closely to 3 years without any disturbance since the year 2021 until 2023 when the speaker and other councilors passed unconstitutional and illegal suspension order against them without following the council procedure;

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- c. They had a council meeting on 6^th October 2023 however they realized that the earlier date of 29^th September 2023 was changed to that date intentionally for the Speaker to serve her interest and cause their suspension; - d. To their surprise the speaker mentioned that some councilors were misbehaving in the council meetings and said they are warned; - e. The speaker went on to mention the $1^{st}$ and $2^{nd}$ Applicants names and with the aid of the chairperson LC.3, added the name of the 3^rd Respondent and immediately suspended them on an item that was not on the order paper; - f. They tried requesting for the reasons why they were being suspended and also the suspension letters to that effect but all in vain and up to date they have never been responded to; - g. The decision of the Respondent is irrational, unreasonable, unconscionable and unjustifiable with no good cause; and - h. The Respondent acted unfairly and in breach of the rules of natural justice in that they were not heard before being suspended. - 7. This application was opposed by the affidavit of **WAMUAYA GEOFREY** the Senior Assistant Secretary Busoba Sub-county who is well aware of all the facts pertaining to this application, which has been relied upon in the determination of this application and briefly states that - a. They intend to raise a preliminary objection to the effect that the application is premature, barred by law and it was brought against a wrong party and this Court shall be moved to dismiss it with costs; - b. The Applicants have never been suspended by the Respondent as alleged and in fact there is no proof to that effect; - c. The Respondent has never issued nor published any letters suspending the Applicants and they have continuously received their allowances; and - d. There is no decision that has ever been taken by the Respondent suspending the Applicants and all the annexures to the Applicants' application are suspects of forgery since they don't connect with the Applicants allegations and they are not certified documents.

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- 8. In rejoinder the 1^st Applicant **SAM WALUFU** briefly states that - a. The Sub-county is entirely an independent entity with capacity to sue and be sued; - b. The preliminary objection shall be raised that the Respondent's affidavit in reply is barred and misplaced in law since there is no HIGH COURT OF MBALE and that this court shall be moved to strike out the same with costs; - c. He was suspended together with the $2^{nd}$ and $3^{rd}$ Respondent on $6^{th}$ October 2023 without any pay during council meeting for two sittings, but in respect to suspension, he tried seeking for certified copies of minutes, which request was received on 15^th November 2023 by Fred Wamanga Parish Chief; - d. The suspension was publicized on social media, TV, Radio Open Gate, Step Radio, Whatsapp and there were available videos moving around; - e. He ceased receiving allowances on $12^{th}$ September 2023; - f. He only received ex-gratia on the suspension day; - g. The suspension was made and there are available copies of the minutes; and - h. The attached copies of the minutes on the Respondent's affidavit in reply are for the previous sittings before suspension and others are budgetary copies.

# 9. Legal representation

The Applicants were represented by Counsel Thomas Wambu while the 10. Respondent was represented by Sefu Advocates & Solicitors.

#### 11. **Submissions**

12. At the hearing of this application both counsel were given schedules to file their respective written submissions and they both complied. This court has considered them in the determination of this application.

#### 13. **Analysis of court**

This court has framed two issues in determination of this application to 14. wit;

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- a. Whether this application is amenable for judicial review? - b. Whether this application raises any grounds for judicial review? - I will resolve the issues separately and in their chronological order. 15. - Issue 1: Whether this application is amenable for judicial review? 16. - Rule 7A of the Judicature (Judicial Review) Rules, 2009 as amended 17.

by the Judicature (Judicial Review) (Amendment) Rules, 2019 SI 32 of 2019 provides for factors to be considered in handling applications for judicial review as-

- (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.* - 18. Rule 3 of the Judicature (Judicial Review) Rules (supra) provides for cases appropriate for judicial review as- - "(1) An application for-

(a) an order of mandamus, prohibition or certiorari; or

(b) an injunction under section 38 $(2)$ of the Judicature Act restraining a person from acting in any office in which the person is not entitled to act, shall be made by way of an application for judicial review in accordance with these Rules.

(2) An application for a declaration or an injunction (not being an injunction mentioned in subrule $(1)$ (b) may be made by way of application for judicial review, ………………"

- In order to determine whether the application is amenable for judicial 19. review, court is meant to satisfy its self on whether the instant case falls under those applicable to this procedure. - In the instant case, the Applicants applied for orders of certiorari, 20. mandamus, a declaration and an injunction restraining the Respondents which in my view falls under those applicable to this procedure.

# Issue 2: Whether this application raises any grounds for judicial 21. review?

- Rule 7A (2) of the Judicature (Judicial Review) Rules (Supra) provides-22. "The court shall grant an order for judicial review where it is satisfied that the decision making body or officer did not follow due process in reaching a decision and that, as a result, there was unfair and unjust treatment". - 23. In the case of **Pastoli Vs Kabale District Local Government Council and** Others [2008] 2 EA 300 it was held that-

"In order to succeed in an application for judicial review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety. *Illegality* is when the decision making authority commits an error of law in the process of taking or making the act. *Irrationality* is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. **Procedural impropriety** is when there is a failure to act fairly on the part of the decision-making *authority in the process of taking a decision. The unfairness may be* in non-observance of the rules of natural justice or to act with *procedural fairness towards one to be affected by the decision.*"

- 24. In the instant case, the Applicants averred that they were suspended without a chance to be heard which was contested by the Respondent who averred that they have never suspended the Applicants as alleged. - 25. Magombe John Malulu (the $2^{nd}$ Applicant) in his affidavit in support averred under paragraph 5 & 6 that; "On the 4^th of October, 2023, we had a meeting for the general purpose and immediately after the meeting we were given order paper inviting us to attend a council meeting scheduled 6^th October 2023. That on the order paper had earlier printed dated scheduled 29^th September 2023 but instead we had the meeting on 6^th October, 2023."

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- He further said that; "to my surprise the speaker from nowhere mentioned 26. that some honorable councilors are misbehaving in the council meeting and said that they are warned". That the speaker after warning changed her minds and then mentioned our names; Walufu Sam, Magombe John Malulu and Musawi Rose Nakembi and suspended us there and then on the item that was not on *the order paper.*" - Masawi Rose Enekambi (the 3^rd Applicant) under paragraph 3 & 11 of her 27. affidavit in support stated that; "on the $5^{th}/10/2023$ , I received invitation letter to attend a council meeting on the $6^{th}/10/2023$ at 10:00am. That there after she mentioned and warned members' whose names she stated and suspended us there and then and said that with immediate effect the three Honorable councilors should leave the council hall." - She added under paragraph 11 that; "Hon. Walufu Sam and I Masawi Rose 28. Nekambi together with Hon. John, Malulu requested the council to be given a *fair hearing before being suspended from the council hall but all went in vain.*" - 29. Wafula Sam (the $1^{st}$ Applicant) under paragraph 5, 7, 13 and 14 of his affidavit in support buttressed the above averments. - In the view of the above averments, the Applicants attached annexure "A" 30. which is Busoba Sub-county Local Government General Purpose Committee Resolution to council dated $6^{th}$ /10/2023 but the same is neither certified nor signed by the chairperson as required by the law. - Another document attached as annexure "A" is Busoba Sub-county Local 31. Government Re: Notice of Council Meeting dated $22^{nd}$ /09/2023. In that Notice, the speaker was inviting Hon. Sam Walufu for the meeting scheduled $29^th/09/2023$ ." But the same is not certified. - The Applicants also attached the minutes for the council meeting held on 32. $31^st / 05/2023$ but the same are not certified. Secondly, this document has no relevance to the matter before court since the events therein occurred before the alleged illegality happened. - The Applicants further attached hand written minutes of $29^{\text{th}}/09/2023$ 33. and under Min. III 29/09/2023 Communication from the chair; states that:

"The Chair welcomed all honorables present. She cautioned honorables to always be careful with the communications while in the community. She argued the honorables to respect one another instead of attacking each other because we all represent our people. She thanked hon. Miriam for lobbing ...for Busoba Community. She mentioned that technical staff should be careful about some advises that may disrupt service delivery. She warned Hon. Magombe John Malulu, Hon Walufu Sam and Hon. Rose Nakambe that they have misbehaved by talking about other honorables so, they be suspended for two sittings without pay. Hon. Welikhe Sam seconded the idea by *the speaker to suspend the honorable in question....................................*

- The above minutes are however not dated and not certified as required by 34. section 76 of the Evidence Act Cap.6 - 35. Secondly, from the Applicants' averments, they state that the meeting which was scheduled for $29^{\text{th}}/09/2023$ was instead held on $6^{\text{th}}/10/2023$ where they were suspended but the same was not attached on the court record for this court to take judicial notice of it. - 36. The minutes quoted above are for $29^{th}/09/2023$ and yet from their averment specifically paragraph 7 of the $1^{st}$ and $2^{nd}$ Applicants' affidavit in support states that; "We had a council meeting on 6^th October, 2023. However, we realized that the earlier date of $29^{th}$ September, 2023 was changed to $6^{th}$ October, 2023....." That paragraph naturally means that the meeting of 29^th $\frac{109}{2023}$ was rescheduled or postponed to 6^th/10/2023. - 37. Section 101 (1) & (2) of the Evidence Act Cap 6 provides that-

"Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts *must prove that those facts exist.*

(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."

#### Section 103 of the Evidence Act Cap 6 provides-38.

"The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person."

- In the instant case as I have already quoted above, the minutes of the 39. meeting in which the Applicants allege where suspended from is not attached on the court record for this court to make a finding of whether the procedure was followed or not. - Secondly, the minutes which the Applicants attached as annexure "A" to 40. their affidavits in support are dated $31^{st}/05/2023$ before the alleged illegality occurred. The other minutes attached which are hand written are dated $29^{\text{th}}/09/2023$ but not $6^{\text{th}}/10/2023$ as claimed by the Applicants. - It was therefore the duty of the Applicants to adduce evidence in court to 41. prove the said illegality but they did not. - It should be noted court cannot rely on speculations to make a decision. 42. Documentary evidence is said to be a hanger upon which oral evidence can be verified because it helps court to assess the oral evidence. For example in the instant case, court could not determine the procedural illegalities without signed and certified council minutes of $6^{th}/10/2023$ , a date when the Applicants were allegedly suspended. (See: Cameroon Airlines V Otutuizu $(2011)$ LPELR – 827 (SC))

Accordingly, this Application is dismissed with costs to the Respondent. 43.

I so order


Delivered via email on 11^th day of June, 2024