Court name
Commercial Court of Uganda
Judgment date
17 December 2010

Shell (U) Ltd. & 9 Ors. v Rock Petroleum & (U) Ltd. & 2 Ors (Misc. Appl. No. 645 Of 2010 (1)) (Miscellaneous Application-2010/645) [2010] UGCommC 36 (17 December 2010);

Cite this case
[2010] UGCommC 36


THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
(COMMERCIAL DIVISION)
MISCELLANEOUS APPLICATION NO. 64
5 OF 2010 (NO. 1)

{ARISING FROM MISCELLANEOUS APPLICATIONS
NO. 622 & 625 OF 2010
}
 


1.       SHELL (U) LTD                               }
2.       KOBIL (U) LTD                               }
3.       GAPCO (U) LTD                               }
4.       MGS INTERNATIONAL (U) LTD        }
5.       DELTA PETROLEUM LTD               }
6.       FUELEX (U) LTD                              }:::::::::::::::::::::::APPLICANTS
7.       CITY OIL LTD                                }
8.       HASS PETROLEUM LTD                         }
9.       NILE ENERGY LTD                    }
10.      PETRO LINK (U) LTD                         }

                                                               VERSUS

1.       ROCK PETROLEUM (U) LTD            }
2.       UGANDA REVENUE AUTHORITY         }:::::::::::::::::::RESPONDENTS
3.       M/S MUWEMA & MUGERWA              }
ADVOCATES & SOLICITORS            }



BEFORE: HON. LADY JUSTICE IRENE MULYAGONJA KAKOOZA

RULING ON APPLICATION FOR RECUSAL


This application arose during the hearing of the appeal named above, when the 3rd respondent firm (i.e. Mr. Fred Muwema and his partner Mr. Herbert Kigundu-Mugerwa, hereinafter referred to as “the complainants”) together with their advocate, Mr. Mulema Mukasa, made an oral application demanding that I do disqualify myself from hearing the appeal. The general ground that they raised in their application was that I was biased.”

There is no doubt that my judicial and personal integrity are on trial in this case. But the procedure that was adopted by the complainants gave me no opportunity to give evidence in my defence. I am therefore left with no alternative but to rely on the record of proceedings in M/A 646 of 2010 and in their oral application for recusal. And in order to facilitate a proper understanding of the genesis of the application and my decision on it, it is important that I set down the background to the application as is reflected on the record in some detail.
 

The 1st respondent herein and over 50 other companies are suppliers of petroleum products in Uganda. On 1/09/2009 they filed O.S 009 of 2009, Rock Petroleum (U) Ltd. v. Uganda Revenue Authority (URA). In the suit, the plaintiffs who were represented by Rock Petroleum (U) Ltd., by virtue of an order that this court granted her on the 7/04/2009, sought the recovery of taxes (Excise Duty) that had been wrongly collected from them following an order made by the Minister of Finance under the Taxes and Duties (Provisional Collection) Act, but which had expired. The 3rd respondent firm (now “the complainants”) were retained by Rock Petroleum (U) Ltd. to prosecute the suit.

On the day that the complainants filed O.S 009/2009, (i.e. on 01/09/09), they also entered into an agreement with the 1st respondent to secure the payment of their fees. For clarity of the arguments that I will make later in this ruling, as well as to facilitate a better understanding of the conduct of the complainants all through these proceedings, I will set down the relevant parts of that agreement, verbatim.

 
THIS AGREEMENT is made this 1st day of September 2009 BETWEEN MUWEMA & MUGERWA ADVOCATES of P. O. Box 6074 Kampala {hereinafter referred to as the “ADVOCATES” which expression shall include their successors and assigns} on the one part AND ROCK PETROLEUM (U) LTD which was granted permission by court to sue URA in a representative suit on its behalf and on behalf of numerous importers of Diesel and Petrol seeking refund of monies illegally collected by URA on Excise Duty {hereinafter referred to as the “CLIENTS” which expression shall include their successors and assigns} on the other part.

WHEREAS
1.      

The client has instructed the Advocates to research and investigate the viability of maintaining legal action against Uganda Revenue Authority and thereafter to pursue appropriate action in respect of refunds of monies allegedly collected as Excise Duty in 2007/2008 Financial Year.

2.      
The subject matter is involving, big and complex and the Advocates have agreed with the clients for a negotiated fee over and above what is provided for in the Advocates Remuneration Rules.

3.      
Further in consideration of the Advocates meeting all necessary statutory and contingency expenses required to pursue the matter.

(NOW) THIS DEED WITNESSES AS FOLLOWS:
1.      
The Advocates shall be entitled to costs of the suit and an additional fee which is equivalent to 16% of the total proceeds of the clients’ claims or whatever total sum of the claim that the Court shall finally award or declare to be due to the clients.

2.      
In the event the Recovery process is protracted by Appeal process Advocates shall be entitled to a further 4% of the total claim.

3.      
Each of the parties and/or any of those represented by them shall be irrevocably, jointly and severally bound by the agreement.

Wherefore the parties have laid their respective hands, the day first above mentioned.”

The agreement was executed by one of the Advocates in the complainant firm and 2 directors of Rock Petroleum (U) Ltd. It was also notarised and the Notary Public, Ms. Innocent Ngobi Ndiko, verified that she had explained the contents of the agreement to the directors of Rock Petroleum Ltd, and that they appeared to have understood it. A copy of the agreement was then deposited with the Secretary of the Uganda Law Council.
 
The suit was successful and judgment was delivered by my brother Lameck Mukasa, J., on the 20/07/2010. In his judgment he ordered that URA makes an account to court of all monies that had been collected from the plaintiffs in excess of what was due from them, and refund it to them. He also ordered that URA file a statement of that account in court. He finally ordered that the costs of the suit be borne by the Defendant, URA. Pursuant to that, on the 12/08/2009 URA filed a statement of account in court that showed that the amount due to over 50 suppliers of petroleum products operating in Uganda was shs 56,184,191,050/=.
 
On 2/09/2010 the complainant firm demanded payment of their fees, per agreement with the 1st respondent, from URA. But URA refused or neglected to pay the equivalent of 16% of shs 56,184,191,050/=, as claimed (i.e. about shs. 8.9 billion). The complainants then filed Misc. Application No. 622 of 2010, under the provisions of s.61 of the Advocates Act and rules 4 and 5 of the Advocates (Remuneration & Taxation of Costs) Rules. They sought for an order that the fees agreed upon with the 1st respondent be charged upon and be paid wholly from the monies held by URA, on account of refunds to all the petroleum product suppliers in Uganda.

A ruling on the application was delivered by the Learned Deputy Registrar of this court on 15/11/2010, and on the same day the resultant order was extracted and served upon URA. In her ruling the Registrar found, among others, and ordered: -
 

From the above, it goes without saying that Rock Petroleum (U) Ltd. Directors pursuant to the court representative suit to file a representative suit on its behalf and on behalf of the numerous importers of diesel and petrol seeking refund of monies illegally collected by URA as excise duty referred to as “clients” entered into the remuneration agreement with the above terms duly notarised and copy sent to the Law Council. The terms therein (the applicable) already above captured are explicitly binding on all beneficiaries in the representative suit, O.S 09/2009.

I therefore do order that the agreed remuneration and legal fees against Rock Petroleum (U) Ltd and other representees (sic) (all applicants’ clients during O.S. 09/2009) be charged and wholly paid to the applicants, Muwema & Mugerwa & Company Advocates out of the Excise Duty refunds for the diesel and petrol importers held by the respondent under order of court in O.S 009/2009.”

The appellants herein, being 10 of the petroleum and diesel suppliers and some of whom had the largest amounts of money owing from URA, were aggrieved by the order of the Deputy Registrar because they had also filed in this court Misc. Application 625/2010. In their application they sought to be added as parties to O.S 009/2009. They also sought to challenge the fee agreement above as illegal and not binding on them and for a declaration to that effect. The Deputy Registrar heard that application on the same day that she entertained the complainants’ application to charge their fees upon the judgement debt. But for some unexplained reason, the Registrar chose to deliver the ruling allowing the fees to be charged upon the judgement debt before deciding on the issues of illegality raised by the appellants here in M/A 625/2010.

The appellants complained about the Deputy Registrar’s actions to the Head of the Commercial Division in their letter from M/s Tumusiime, Kabega & Co. Advocates dated 15/11/2010. In that letter, the appellants’ advocates wrote:-
 

When MA 622 of 2010 came up for hearing on 9th November 2010, we objected to the proceedings and sought to be joined to MA 622 of 2010 in order to voice our client’s objections. The learned Registrar declined an adjournment and instead fixed our application No. MA 625 of 2010 for the same day upon the assurance that in any case, the ruling in MA 625 of 2010 would be delivered on the same day with MA 622 of 2010. We were put on record in MA 622 of 2010 as well.

Much to our consternation, we have now discovered that the ruling in MA 622 of 2010 was given in effect mandating that Uganda Revenue Authority pays about UShs 9 billion of our clients’ monies to M/s Muwema & Mugerwa Advocates premised on an agreement not signed by our clients and without having determined their objections that were heard on the same day.

The purpose of this letter therefore is to seek for your intervention as we feel there are glaring irregularities and injustice in the matter.

We request that the execution of (the orders) in MA 622 of 2010 be stayed until the determination of our application MA 625 of 2010 lest our Application shall (sic) be rendered useless.


At the time when the Registrar’s ruling was delivered, the Head of the Commercial Division my brother, Geoffrey Kiryabwire, J, was away on leave. The matter was therefore referred to me as the Acting Head of the Division. Mr. Enos Tumusiime appeared before me in the afternoon of 15/11/2010 in pursuit of an administrative order, but I declined to grant it. I instead advised him to file a formal application for stay of execution. As a result, on the 17/11/2010, M/s Tumusiime, Kabega & Co., Advocates, Shonubi, Musoke & Co., Advocates and Birungi, Barata & Associates jointly filed an appeal against the ruling and orders of the Deputy Registrar as Miscellaneous Application No. 645 of 2010. They also filed an application for stay of execution of the same orders as Miscellaneous Application No. 646 of 2010.
 
On the same day (17/11/2010), Mr. Tumusiime and advocates from his associates named above came to see me in pursuit of the complaint against the Deputy Registrar. They also sought to obtain an early date for the hearing of the application for stay of execution. While they were waiting to see me, Mr. Fred Muwema and Mr. Siraj Ali also came to my chambers. I allowed them to see me first before I could deal with the issues raised by Mr. Tumusiime and his colleagues. Mr. Muwema then inquired about the applications that had been filed in the matter and said he had information that they were due to be heard that day but his firm had not been served with the process. I informed him that the applications were still being processed and that they would be served upon his firm when they were allocated dates for hearing.

I also informed Mr. Muwema and his colleague that M/s Kabega & Tumusiime & Co., Advocates had lodged a complaint against the Deputy Registrar in respect of Misc. Applications 622/2010 and 625/2010, and that I was to see Mr. Tumusiime and his colleagues about it that afternoon. Mr. Muwema requested that I show him the letter of complaint and I obliged. The clerk who was in attendance throughout the proceedings and meetings that afternoon, Mr. Ojambo Makoha, handed him the letter and later made a Photostat copy of the same for him.
 

Mr. Muwema had requested that what transpired that afternoon be off the record of the court, but due to his conduct when he appeared before me I was forced to make notes about his visit to my chambers. I did so because the administration of this court is one of my judicial duties. When matters get out of hand it is important that they be documented. In addition to that, the officers of this court are by law required to behave courteously while before judicial officers and colleagues in the profession. A request to keep matters off the record will not be respected by court where an officer of the court conducts himself or herself in an unbecoming and/or disrespectful manner.

After he read the letter of complaint from Tumusiime, Kabega & Co., Advocates, Mr. Muwema became very angry. He began to complain in a very loud voice, accusing Mr. Tumusiime and his colleagues of trying to cheat him of the fees that were due to his firm on account of the fee agreement mentioned above. He charged that Mr. Tumusiime and his colleagues under rated him because he is younger than they are, and that they were trying to cheat him of his fees because of that. He informed me in no uncertain terms that he is the legal expert on class actions in Uganda and that as such had been in practice for 15 years. Further that he was very sure that any action to challenge the fee agreement in dispute could never succeed, because, in his view, the appellants here filed a “wrong application,” (i.e. M/A 625/2010). I then broached it to Mr. Muwema and Mr. Siraj Ali that an interim order should issue to stay execution so that the application for stay of execution (M/A 646/2010) and the appeal (M/A 645/2010) pending before court could be heard.


At this Mr. Muwema completely lost control. He again began to shout and accuse me of siding with Mr. Tumusiime and his colleagues. And in what appeared to be a bid to challenge my authority or to intimidate me, he demanded that I do issue the order for stay of execution immediately. I advised Mr. Muwema to cool down and control himself. I also assured him that I had not issued any order yet but was considering it. At some point in this heated discussion, Mr. Kiggundu-Mugerwa also came into my chambers. He joined the heated discussion and tried to control Mr. Muwema’s outbursts of rage. I then inquired whether the three advocates would be interested in staying on in my chambers so that we could agree a common course of action about the matter between their firm, Mr. Tumusiime and his colleagues. Mr. Muwema declined to stay.

After they declined to attend the meeting with the lawyers of their opponents, I inquired from Mr. Muwema and his colleagues when they would be in a position to attend a hearing for the application for stay of execution. Mr. Muwema then responded that they needed one clear day within which to be served and to respond to the application, and that they could attend the hearing on 19/11/2010. I then agreed to set down that date for hearing of the application for stay or execution. After that, Mr. Muwema and his colleagues left my chambers. They said they would respond to the letter of complaint from M/s Tumusiime, Kabega & Co., and wait for the applications pending hearing to be served upon them.

After Mr. Muwema and his colleagues left my chambers, Mr. Tumusiime, Mr. Enock Barata and Mr. Andrew Kibaya appeared before me to follow up on their complaint against the Registrar and to have a date assigned for the hearing of the application for stay of execution (Misc. Application 646/2010). I informed the advocates that I had agreed with Mr. Muwema that the application be taken on 19/11/2010. Mr. Tumusiime then requested that he address me on the basis of M/A 646/2010, regarding the urgency of stopping URA from paying the fees demanded by the complainants. I heard him out and considered the points he raised. As the Acting Head Commercial Division of the High Court, as well as in my judicial capacity, I deemed it fit to exercise my discretion and issued an interim order to stay execution under s.98 of the Civil Procedure Act. The order was to hold for 2 days, i.e. till 19/11/2010 when the substantive application for stay of execution was scheduled to be heard, inter parte. There is a record of those proceedings and a ruling in the matter on the file for M/A 646/2010.

 
On the 18/11/2010, the complainants lodged a notice of appeal in this court stating that they would be appealing against the interim order for stay of execution. They also obtained an interim order from the Assistant Registrar of the Court of Appeal, Mr. Nizeyimana (in Misc. Application 194/2010) to stay all proceedings before me in the matter. In addition, they lodged a complaint against me as a judicial officer with the Principle Judge, alleging that I had a personal interest in the matter. In their letter dated 19/11/2010 they charged that I issued an interim order in favour of the appellants because I was partial to Mr. Alan Shonubi, a partner in one of the firms that represents the appellants here. They also totally misrepresented the events that took place when they met me in my chambers in the afternoon of 17/11/2010. The complainants wrote: -
 
We therefore sought audience with the Judge which she granted. She told us in no uncertain terms that she was going to set aside the Registrar’s order for payment despite strong protestations that we needed to be heard.

Coincidentally, we have learnt that one of the lawyers, Mr. Alan Shonubi enjoyed a landlord/tenant relationship with her (Judge Mulyagonja) whilst she practiced under the name of M/s Kakooza Kawuma and Company Advocates (sic). Based on the judge’s obvious partiality we have reasonable belief that the said relationship has influenced her conduct as a judicial officer.

In the matter therefore, we humbly request your high office to intervene immediately to avoid a severe escalation of an already dire situation.


The Principle Judge did respond to their complaint in his letter dated 19/11/2010, copied to me, as follows:-
 
“It would appear that some money is at the centre of the dispute between your firm and other firms of lawyers. There is also the issue of the remuneration agreement which you want enforced. Most of the issues raised are of a legal nature. I would suggest that you give opportunity to the due process to take its full course.

As for the alleged bias on the part of the learned Judge I would suggest that she be addressed on it in open court or otherwise for her to make a decision one way or the other.”

 
When the application for stay of execution (M/A 646/2010) was called on for hearing on 19/11/2010, Mr. Siraj Ali and Mr. Brain Kabaiza appeared in court to represent the 1st respondent and the complainant firm. The applicants were represented by Mr. Enos Tumusiime of M/s Tumusiime, Kabega & Co. Advocates, Mr. Byrd Ssebuliba of Shonubi, Musoke & Co., Advocates and Mr. Cephas Birungi of Birungi, Barata & Associates. Mr. Siraj Ali then informed court that the Assistant Registrar of the Court of Appeal had issued an order to stay all proceedings before me. The order had earlier been brought to my attention that day, attached to their letter dated 19/11/2010 addressed to the Deputy Registrar.

I disregarded the order of the Assistant Registrar of the Court of Appeal because in my opinion it was injudicious and an obstruction to the course of justice. I went on to hear M/A 646/2010, the substantive application for stay of execution. Mr. Siraj Ali and Mr. Kabaiza remained in court throughout the hearing but they chose not to participate in the proceedings, citing the order of the Assistant Registrar, Court of Appeal. The application therefore proceeded ex parte, and in my ruling I gave detailed reasons for disregarding His Worship Nizeyimana’s order to stay all proceedings before me. I also addressed the initial allegations of bias put before the Principle Judge in the same ruling, though they had not been raised by the complainants in court.


On 23/11/2010, the complainants filed notice to appeal against the orders that I made in M/A 646/2010. They also applied for the record of proceedings. The record in those proceedings has been prepared and is ready for collection but the complainants have taken no further steps to pursue their appeal; the typed record lies uncollected somewhere in this court.
 
After I granted the order for stay of execution, I had the appeal (M/A No 645/2010) fixed for hearing on the 30/11/2010. Process was served upon the complainant firm as the 3rd respondents, and as the advocates for the 1st respondent. On 29/11/2010, Mr. Ojambo Makoha, the clerk attached to my chambers, brought it to my attention that the complainants had filed written submissions in the appeal. The document consisted of 10 pages of the complainants’ submissions, together with authorities in support thereof. The complainants had also filed 2 affidavits in reply to the application/appeal stating the reasons why they thought it should not proceed. They asserted that the appeal was incompetent and should be dismissed and made no response to the issues of illegality raised in it, I believe in the hope that it would be summarily dismissed. I was therefore able to peruse the submissions and the authorities filed with them before the matter was called on for hearing on 30/11/2010.

Apparently, the complainants also served copies of their submissions upon the appellant’s advocates. When the matter was called on for hearing on 30/11/2010, I inquired from the complainants whether they had anything to add to their written submission. Mr. Muwema who led the team for the respondents, and appeared with Mr. Mugerwa, his partner, as well as Mr. Mulema Mukasa then informed court that they had nothing to add and that would be all.

I then called upon Mr. Tumusiime who was lead counsel for the appellants to address me on the preliminary points of law raised by the respondents. He was in court together with Mr. Andrew Kibaya and Mr. Enock Barata, all for the appellants. Mr. Tumusiime then informed court that he intended to deal with the preliminary points of law in his submissions in the appeal, but Mr. Muwema objected to that mode of proceeding. He argued that the court had to dispose of the preliminary objections first because, in his view, they were capable of disposing of the appeal. He said it had to be done there and then because that was the “practice in this court.”

Having evaluated the preliminary objections and the authorities cited and presented before the hearing and having no response yet from the appellant’s counsel, I thought it would not prejudice the respondents if the preliminary objections were dealt with in my judgment. I had in fact made that decision after reading the written arguments that were presented to me the day before. I therefore exercised my discretion to postpone the decisions on the preliminary objections. I did so because of the fact that the matters raised in the appeal were allegations of illegalities perpetrated by officers of this court against clients. The whole dispute involved large amounts of money and tempers were flaring because it was extremely contentious. It also appeared to me that the complainants seemed to be determined to frustrate the hearing of the appeal from taking place.

In my ruling reserving the decision on those points of law, I pointed out the duties of the advocate to the court, as well as the duties of a judge in any proceeding. I also pointed out that the judge had only limited time for each dispute but the complainants here were not helping court with their interruptions of the proceedings. Further that it was inadvisable for advocates to appear pro se in contentious litigation. I then ruled that the preliminary objections would be dealt with in my judgement, after hearing the replies to them from the appellants’ advocates, and that the appeal should proceed on its merits.

Mr. Muwema again objected to this. He still insisted that the court was under an obligation to dispose of the preliminary objections before proceeding to hear the appeal. He demanded that I provide him and his team with a copy of the ruling deferring decisions on the preliminary objections because, in his opinion, I had in it disposed of the whole appeal. I informed Mr. Muwema that the ruling had errors in it that had to be corrected. I also pointed out that since I had read the ruling out in open court while he was talking to his colleagues, and not paying much attention to what I read, he would have to wait and get it later. I again ruled that the appeal proceeds on its merits.
 

On that note, Mr. Muwema applied to make an application which I allowed him to do. He then applied that I disqualify myself from entertaining the proceedings before me because, in his opinion, I was biased. He made the application in such an unbecoming manner that Mr. Tumusiime for the appellants tried to interject. Nonetheless, I allowed him to proceed the way he chose to, making notes of the breaches of decorum that he made. His colleagues, Mr. Mulema and Mr. Mugerwa made their contributions too. The allegations of “bias” that were presented by the complainants and their advocate can be summarized as follows:-

1.      

That I entertained an ex parte application for an interim order for stay of execution in favour of the appellant companies on the basis of a letter;
2.       That I disobeyed the interim order of the Assistant Registrar of the Court of Appeal to stay all proceedings before me in the matter and proceeded to hear the application for stay of execution in which I made a final ruling that execution be stayed;
3.       That I mentioned in my ruling in which I ordered a stay of execution that the fee agreement that was being contested by the petroleum companies “appeared to be illegal” and or referred to it as a contingent agreement,” and that I had thereby disposed of the appeal;
4.      
That I “jumped into the arena” when I ruled that the application contesting the validity of the agreement (M/A 625/2010), which the Registrar heard on the same day that she heard M/A 622/2010 but delivered the ruling after she delivered that in M/A 622/2010, had been overtaken by events;
5.      
That I ordered that costs for the application for stay of execution be borne by Muwema & Mugerwa, Advocates & Solicitors (only), issued a certificate for the three counsel who appeared for the petroleum companies and gave no reason for that decision in my ruling;
6.      
That I declined to dispose of the preliminary objections raised against the appeal before hearing it, substantively;
7.      
That I prejudged the case when I said that the complainants did not respond to the issues of illegality raised in the appeal but they only raised preliminary objections to prevent the hearing;
8.       That I had disposed of the appeal in my ruling to reserve the decision on the preliminary objections;
9.      
That I had an already typed ruling which I read in court to order that the appeal proceeds, without first disposing of the preliminary objections raised against it; and finally,
10.      That my mind was “clouded” because of the complaint that the advocates made to the Principle Judge about me, regarding the manner in which I dealt with the application for an interim order for stay of execution.
 
Before I deal with the wild allegations of bias raised by the complainants, I wish to take exception to the manner in which this application was brought. Although they are litigants in the appeal under hearing, the complainants are also advocates and officers of this court. It is presumed that they ought to have some knowledge of the procedures of the courts, or at the very least establish what they are, before they embark on as big a venture as making an application that a judge disqualify himself/herself from entertaining proceedings before him/her.

There is no set procedure in the Laws of Uganda for disqualifying judges from hearings. However, there is ample precedent on the subject which the complainants here could have followed. They did not bother to find out what the proper procedures are and thus had not a clue about what they were doing or its implications. As a result, at some point during their submissions the application degenerated into a personal affront in which Mr. Muwema treated me like a criminal or witness under cross-examination as follows:-
 

“Muwema: …You are not a proper judicial officer to continue hearing this matter!
Tumusiime: I wish to interject. The manner in which my learned friend is addressing court is not proper.
Court: Let him have his day in court. He is a party to the suit, not just counsel.
Muwema: I put it to you that you are not the proper judicial officer to hear this matter!
Court: It seems I am on trial here! Mr. Muwema, are you now cross-examining me?
Muwema: No, I am not. (He continues in an accusatory manner.) Even the ruling that you have just read appears to have been pre-written. …”
 
This was an unfortunate occurrence in which a judge’s jurisdiction and competence were challenged in a fully packed courtroom in an embarrassing manner and without any warning. Had he not been a litigant, for it is litigants that have the right to and are sometimes allowed to display their anger in court, I would have cited Mr. Muwema for contempt of court. I do hope that after I hand down this decision, no other advocate or litigant will have the audacity to demand that a judicial officer in this jurisdiction disqualify themselves from proceedings in such a despicable manner. Disrespect of the courts and judicial officers, especially by members of the legal profession puts a slur on the judicial process. It, no doubt, causes the general public to loose confidence in the courts.

Having said that, the accepted procedure for making applications of this nature in this jurisdiction was set down by the East African Court of Justice in the case of Attorney-General v. Anyang’ Nyong’o & Others [2007] 1 EA 12 at p.20. Following the decision in The President of the Republic & Others v. South African Rugby Football Union & Others 1999 (7) BCLR 725, the court ruled as follows: -


 
“In an application for a Judge to recuse himself from sitting on a Coram, as from sitting as a single Judge, the procedure practiced in the East African Partner States, and which this Court would encourage litigants before it to follow, is that counsel for the applicant seeks a meeting in chambers with the Judge or Judges in the presence of [the] opponent. The grounds for recusal are put to the Judge who would be given an opportunity, if sought, to respond to them. In the event of recusal being refused by the Judge, the applicant would, if so advised, move the application in open court.

The rationale for and benefit from that procedure is obvious, namely, apart from anything else, in practical terms it helps the litigant to avoid rushing to court at the risk of maligning the integrity of the Judge or Judges and of the court as a whole, without having the full facts. Where a recusal application comes before a court constituted by several Judges, it appears to us that, subject to the Judge whose recusal is sought giving his individual decision on the matter, all the Judges constituting the Coram for the case have (a) collective duty to determine if there is sufficient ground for the Judge to recuse himself from further participation in the case.”

 
The Court of Appeal of Uganda approved of and adopted the procedure above in Meera Investments Ltd. v. The Commissioner General of Uganda Revenue Authority, C/A No. 15 of 2007, where Dr. Joseph Byamugisha sought to have Twinomujuni, J.A. recuse himself from sitting on the Coram in that appeal. In a 19 page ruling the learned Justice of Appeal took exception to the procedure that had been adopted by the Learned Doctor of Laws, stated the correct procedure and then made representations supported by law as to why he declined to disqualify himself.
 
I would dismiss this application at this point for being premature, misconceived, incompetent and bordering on contempt of court. But given the despicable conduct of the complainants in this application, as a Member of the Board of Examiners of the Law Development Centre and as the Deputy Head of the Commercial Division I am concerned about the degenerating standards of advocacy in this jurisdiction. I am also concerned about the manner in which advocates in this country treat indigent
Compared to the appellants here, Rock Petroleum Ltd. was an indigent client. According to item 3 under the preamble to the impugned fee agreement, it appears they could not pay legal fees and/or statutory expenses; because filing fees, etc. for an Originating Summons filed in the High Court are Ushs. 6,000/=, only. And according to the schedule of refunds due from URA to the petroleum product suppliers, Rock Petroleum was entitled to shs. 3,380,000/= only, compared to Shell (U) Ltd. which was entitled to shs. 1.2 billion out of the 1st installment due from URA.

clients, like Rock Petroleum in this case, because I happen to sit on the Legal Aid and Pro-bono Committee of the Uganda Law Society.

I am therefore not ashamed to declare at this point that those are the vested interests that I have in seeing that the appeal now before me, which is really about the professional or unprofessional conduct of advocates in this jurisdiction, is seen to its logical conclusion. And this wild application against me serves as an opportunity for me to give a judicial opinion on the subjects of allegations of bias or the appearance of it, disqualification of judges for bias or perceptions of bias, and the conduct of advocates. I will begin with the subject of bias which seems to be seriously misunderstood by advocates.


At the onset, it is important to first establish what is meant by the word “bias”. Black’s Law Dictionary (9th Edition) gives several definitions of the word “bias.” The generic description is that it is an inclination, prejudice or predilection. The same source defines “actual bias” as the genuine prejudice that a judge, juror, witness, or other person has against some person or a relevant subject. “Advocates bias’’ is then defined as the bias which advocates often develop in favour of a client involved in a dispute, and which may potentially cause such missteps as overlooking certain arguments or misleading the way facts of a case may appear to a dispassionate outsider, as is the case in these proceedings.

There is also the concept called “implied bias,” prejudice which is inferred from experiences or relationships with a judge, juror or witness or other person. Finally, judicial bias, which I am accused of in this case, is a judge’s bias towards one or more of the parties to a case over which the judge presides. Judicial bias is usually not enough to disqualify a judge from presiding over a case, unless the judge’s bias is personal or based on some extrajudicial reason. I will explain.

 
‘Extrajudicial bias’, which as I have stated above, is the kind of bias that would lead a judge to being disqualified by a motion, or by the judge denying jurisdiction in a matter, and is also referred to as recusal (from the French, “recuse). There arises there from a concept that has developed in some common law jurisdictions known as the “extrajudicial source rule.” First, the term “extrajudicial” is defined as conduct which is done, given, or effected outside the course of regular judicial proceedings. It is conduct that is not founded upon, or that is unconnected with the action of a court of law, as in extrajudicial evidence or an extrajudicial oath. It is also said to be conduct which, though done in the course of regular judicial proceedings, is unnecessary to such proceedings, or interpolated, or beyond their scope, as in an extrajudicial opinion. Richard E. Flam, Esq., Disqualification for Bias or Its Appearance, A Self Assessment Test, retrieved 01/12/2010 from http://www.cce-mcle.com/tests/ss6014.htm
 
Extrajudicial conduct is not conduct that physically takes place outside the courtroom but rather conduct that arises from something outside the events of the trial or hearing itself. Because of that, the distinction between judicial and extrajudicial bias has been held to lie not in the location of the incidents from which the bias is alleged to arise, but in the nature of those incidents. Consequently, while the basic rationale for the extrajudicial source rule lies in a distinction between bias developed by a judge during the course of the proceedings and “bias” that has its sources outside the courtroom, the American jurisprudence “four corners of the courtroom test” is an alternative formulation of the rule that, to be disqualifying, bias must be personal rather than judicial.
Richard E. Flam, Esq. (ibid); the author is an Attorney at Law in Berkeley, California. He specializes in handling conflict of interest matters, including attorney and judicial disqualification motions and appeals. He is the author of a treatise on Judicial Disqualification: Recusal and Disqualification of Judges, and has been recognized as America’s leading author on the subject.
 
Given the litany of the alleged wrongs that the complainants named against me, none of them amounted to conduct that was extrajudicial. All the steps that they complained about took place within the proceedings before me, and to advance the applications that were placed before me for disposal, i.e. M/A No. 645 and 646 of 2010.
 
To use another example, the Commentary on the Bangalore Principles
The Bangalore Principles of Judicial Conduct were developed by the Judicial Group on Strengthening Judicial Integrity (later named Judicial Integrity Group), an informal gathering of chief justices and senior justices as a Draft Code of Judicial Conduct in Bangalore, India in February 2001. Chief Justice B. J. Odoki is one of the founder members of the group and the Uganda Code of Judicial Conduct is modeled on the basic principles that were agreed upon at Bangalore.

of Judicial Conduct (Judicial Integrity Committee, 2007) at p.55, para 58, states, that:-

 
“Bias may manifest either verbally or physically. Epithets, slurs, demeaning nicknames, negative stereotyping, attempted humour based on stereotypes, perhaps related to gender, culture or race, threatening, intimidating or hostile acts, suggesting a connection between race or nationality and crime, and irrelevant references to personal characteristics, are some examples. Bias or prejudice may also manifest themselves in body language, or appearance or behaviour in or out of court. Physical demeanour may indicate disbelief of a witness, thereby improperly influencing a jury. Facial expression can convey to parties or lawyers in the proceeding, jurors, the media and others an appearance of bias. The bias or prejudice may be directed against a party, witness or advocate.”
 
The litany of wrongs that the complainants allege I committed, within the short course of these proceedings, does not fall anywhere within the ambit of the conduct described above. Indeed the alleged bias is not said to be personal to either the parties or the advocates before me. Rather it is about the judicial or administrative decisions, orders or observations that I made about the case before me.

With regard to the personalities of the complainants, in their capacities as advocates or individuals, I can confidently state that though I was a member of the Bar in Uganda up to about three years ago, I did not have any personal conflicts with them. Indeed I did not even know them for they were not really my contemporaries. The allegations about favouring Mr. Alan Shonubi were dealt with in my ruling in M/A 646/2010. Suffice it to add here that if my former law firm occupied a small space in his building, it was for rent which was all paid during the course of our tenancy; we did not occupy the premises as tenants at sufferance. Mr. Alan Shonubi therefore had no influence over me as his tenant; and he has had no influence at all over me since I became a Judge.

 
The Commentary on the Bangalore Principles (supra, at p.56 and para 60) further lists conduct or attitudes that may not be construed as bias as follows: -
 
“A judge’s personal values, philosophy, or beliefs about the law, may not constitute bias. The fact that a judge has a general opinion about a legal or social matter directly related to the case does not disqualify the judge from presiding. Opinion, which is acceptable, should be distinguished from bias, which is unacceptable. It has been said that ‘proof that a judge’s mind is a tabula rasa (blank slate) would be evidence of a lack of qualification, not lack of bias. Judicial rulings or comments on the evidence made during the course of proceedings also do not fall within the prohibition, unless it appears that the judge has a closed mind and is no longer considering all the evidence.”
 
The complainants were concerned about a finding I made on page 9 (the 2nd paragraph) in my ruling in M/A 646/2010 where I stated that: -
 
“To my mind, that application (Misc. Application 625/2010) appears to have been overtaken by events. This is because the Learned Deputy Registrar deemed it fit to first dispose of the substantive issues in M/A 622/2010, i.e. the enforcement of the contingent fee agreement between the 1st and 3rd respondentsagainst the 2nd respondents herein, before resolving the issues raised in Misc. Application No. 625/2010 by the applicants who opposed the fee agreement and desired that the court opens it up to verify its legal validity. As a result, it is my view that the answers to the 2nd and 3rd prayers, which were most crucial for determination in M/A 625/2010, could not reasonably be answered in any other way by the same judicial officer than she answered them in M/A 622/2010.”
 
There is no doubt from the paragraph above that it was a judicial finding that resulted from the evaluation of the facts and issues raised in the two applications mentioned. Any judicial officer or advocate worth their salt would have come to the same conclusion that I did, if they had read the two sets of proceedings. In any event, if I was wrong, an erroneous finding made by a judicial officer cannot be construed as bias. If the decision was wrong, it could be appealed to the next court in line. The same goes for the complaint raised by Mr. Mulema Mukasa about my findings on interim orders vis-

-vis the powers of the Deputy Registrar of the Court of Appeal.

Regarding the complaint that I referred to the impugned agreement as a contingent agreement, the word contingent is a word in the English language. It acquires different meanings given its context. Its generic meaning, according to my copy of Longman’s Dictionary of Contemporary English (Pearson Education Ltd. 2003, Essex, England) is “depending on something that may happen in the future.” In that regard, the agreement in dispute in the appeal provided in clause 1 thereof that: -

 
“The Advocates shall be entitled to costs of the suit and an additional fee which is equivalent to 16% of the total proceeds of the clients’ claims or whatever total sum of the claim that the Court shall finally award or declare to be due to the clients.”
 
There is no doubt from the provision above that the payment of the complainants’ fee, per agreement, depended on a future event. Whether a fee agreement that depends on the particular future event named is legal or valid in this jurisdiction or not is yet to be determined in the pending appeal.

I hasten to add that judicial officers cannot be forced to behave as though they are ‘walking on eggshells’ during the course of proceedings before them; especially not with regard to the expressions and/or words that they employ in their rulings or orders, because that is the only mode of expression that is available to them during the execution of their duties. Judicial officers are also under no obligation whatsoever to ‘pussy foot’ or skirt around legal issues in the disputes that are placed before them. Since they claim to be seasoned advocates, the complainants should have no fear that an observation made in the course of preliminary proceedings is the final decision on the matter. Rather, they should brace themselves, research and respond to the substantive issues raised in the appeal, not find fault with the judge for pointing out those issues.

 
Having defined the kind of bias that would attract recusal or disqualification, what is the standard applied in order to establish whether allegations of bias are well founded or not? In the instant case, it has not been proved that I am a party to or that I have an interest, financial or otherwise in the result of the case before me, save what I have disclosed above. If it had been proved that I was under the influence of Mr. Shonubi, as was alleged earlier, I would have had to automatically disqualify myself under the provisions of clause 2.4.2 of the Uganda Code of Judicial Conduct. But that could not happen because no one gave an iota of evidence (by affidavit or otherwise) that the appellants’ advocates, or the appellants are members of my family, or that I am a shareholder or director in one of them, or that I have some other hidden or vested interest in the outcome of the appeal. The manner in which the charge was framed in the complainants’ letter of 19/11/2010 to the P.J was in the nature of a rumour or suspicion.

In the Anyang’ Nyong’o case, the Justices of the East African Court of Justice ruled that where the Judge is not a party and does not have a relevant interest in the subject matter or outcome of the suit, a Judge is only disqualified if there is likelihood or apprehension of bias arising from such circumstances as relationship with one party, or preconceived views on the subject matter in dispute. The disqualification is not presumed like in the case of automatic disqualification. The applicant must establish that bias is not a mere figment of his imagination. The court went on to explain the test further as follows: -
 
“The objective test of “reasonable apprehension of bias” is good law. The test is stated variously, but amounts to this: do the circumstances give rise to a reasonable apprehension, in the view of a reasonable, fair-minded and informed member of the public that the Judge did not (will not) apply his mind to the case impartially. Needless to say, a litigant who seeks disqualification of a Judge comes to court because of his own perception that there is appearance of bias on the part of the judge. The court, however, has to envisage what would be the perception of a member of the public who is not only reasonable but also fair-minded and informed about all the circumstances of the case would be.”              
{My emphasis}
The question then that must be answered in the circumstances is: Are the complainants in this application reasonable and fair minded persons? Clause 2 of the impugned agreement provided that in the event that the process of recovery in the suit is protracted by appeal processes, the complainants shall be entitled to a further 4% of the total claim. That means that the very fact that the appellants have lodged an appeal in this court, which in the complainant’s opinion has no chances of success at all, they will now be entitled to 20% of the judgment debt, not just 16% which they claimed to be entitled to before the appeal. That comes to the whooping sum of UShs. 11.2 billion. The appeal is, per agreement, to their benefit and they should be glad that their remuneration is to be enhanced by the actions of the appellants. Why then are the complainants protesting so much and pulling out all the stops to try and prevent the appeal from being heard?

It is simply because of the three advocates complaining of bias on my part, 2 are litigants in the appeal now before me. They made their application to have me disqualified for decisions and findings that I made in the course of hearing the case after the files were placed before me. For that reason they cannot be said to be reasonable and fair-minded.” The complainants suffer from the “advocate bias” that I described above, as well as the apprehension of litigants in the case. They fear that if they lose the appeal they could lose fees which could go up to the tune of UShs. 11.2 billion.

 
Therefore, though the complainants are well informed about their case, and they ought to be well informed about the law, they seem to be taking my judicial pronouncements as personal affronts and therefore find them unacceptable; so they construe them as “actionable bias; but nay, it is judicial bias. It is appropriate here to adopt the expression that was used by Mr. Justice Rehnquist of the United States Supreme Court of Appeals of the District of Columbia, when it was sought to disqualify him from presiding in Laird v. Tatum, (1972) US 409 US 824. If it were found that my mind was a complete tabula rasa on the subject of advocates fee agreements, after I had been a lecturer at the Law Development Centre for 6 years, and a practicing lawyer on the Ugandan bar for almost 20 years before I was called to the bench, that would be evidence of lack of qualification to hear the dispute before me, not lack of bias!
 
As to whether I was right or wrong when I deferred dealing with the preliminary points of law presented to me in writing, if it has been the practice in this court for judges to always deal with all preliminary points of law before the substantive matter, then I think it is an erroneous practice. It would mean that the judges in the court are not given latitude to exercise their discretion; a fetter on their judicial independence. Moreover, regarding preliminary points of law which are now the subject of Order 6 rules 28 to 30, Civil Procedure Rules, it was held by the Justices of the Supreme Court in Attorney General v. Major-General David Tinyefuza, Constitutional Appeal No. 1 of 1997, (Oder, JSC, RIP) at page 10 that:-
 
“… the defendant in a suit or the respondent in a petition may raise a preliminary objection before or at the commencement of the hearing of the suit or petition that the plaint discloses or petition discloses no reasonable cause of action. After hearing arguments (if any) from both parties the court may make a ruling at that stage, upholding or rejecting the preliminary objection. The court may also defer its ruling on the objection until after the hearing of the suit or petition. Such a deferment may be made where it is necessary to hear some or the entire evidence to enable the court to decide whether a cause of action is disclosed or not. I think that it is a matter of discretion of the court as regards when to make a ruling on an objection. No hard and fast rule can and should be laid down to fetter the court’s discretion. The exercise of discretion must, in my view, depend on the facts and the circumstance of each case.”

All the other Justices (6 of them) on the Coram agreed on this position stating various scenarios. Tsekooko, JSC expressed the view that it was a matter of the Judges’ style. The view was also expressed that if the mover feels aggrieved by the deferment of preliminary objections he/she can make it a ground of appeal at the next level.

In addition to the above, it is the accepted position that appellate courts hesitate to interfere with the discretion of a judge in the lower court, except where it is proved that it was not exercised judicially, or that it was exercised contrary to the law or on a wrong principle. Berko J.A (as he then was) dealt with the subject of judicial discretion in the case of National Enterprises Corporation v. Mukisa Foods Ltd; Civil Appeal No. 42 of 1997. Citing the decision in Anlaby v Praetorius (1888) 20 QBD 764 at 769, he ruled: -
 

“Discretion necessarily involves latitude of individual choice according to the particular circumstances, and differs from a case where the decision follows ex debito justitiae once the facts are known.
 
The learned Justice of Appeal went on to cite the decision of Kay L.J. in Jenkins v Bushby [1189]2 Ch. 484 where he ruled that: -
 
“The court cannot be bound by a previous decision to exercise it’s discretion in a particular way, because that would be in effect putting an end to the discretion.”

Therefore, the practice of one judge or several judges/courts is not law; practices vary from judge to judge. An individual judge cannot be forced into the mould of another judge for all judges enjoy independence in the manner in which they exercise their discretion.
 
How then is the decision to disqualify oneself from a judicial proceeding made? Under the 1995 Constitution, the question was first dealt with by the Supreme Court in the case of Attorney General v. Major-General David Tinyefuza, (supra) when Kanyeihamba, JSC, was asked to step down from the Coram because of the fear that he would be biased against the respondent. The court next considered the question in Uganda Polybags Ltd v. Development Finance Company of Uganda, [1999] 2 EA 337, where the court ruled:-
 
We hold the view that the decision whether a judge should disqualify himself or herself from sitting in a case where charges of bias or likelihood of bias are leveled against him or her, must be left entirely in his or her discretion. It would be improper for the rest of the members of the Coram to determine the issue, as to do so would be tantamount to trying him or her in respect of his or her integrity which they have no jurisdiction to do.”
 
The Constitutional Court followed that dicta in Rtd. Col. Dr. Kiiza Besigye & 5 Others v. Attorney General, Constitutional Application No. 7 of 2005, where the petitioner made a formal application that Kavuma, JA, do disqualify himself because of fear that he would be biased against him. The court ruled:-
 
Clearly we have no jurisdiction to try our colleague in respect of his integrity. It is therefore improper to file a formal application seeking an order, in effect from us the other four members of the Coram that the impugned member should not sit on the Coram.
 
Whether they be Justices, Judges or Magistrates, judicial officers appointed under the Constitution of the Republic of Uganda take the same oath or affirmation that is provided for in the 4th Schedule to the Constitution of the Republic, when they are called to the bench. In the Anyang’ Nyong’o case (supra) the East African Court of Justice expressed a view on the judicial oath and the duties of judicial officers which I found most appropriate to quote before I announce my decision.
 
While litigants have the right to apply for the recusal of judicial officers where there is a reasonable apprehension that they will not decide a case impartially, this does not give them the right to object to their cases being heard by particular judicial officers merely because they believe that such persons will be less likely to decide the case in their favour. The nature of the judicial function involves the performance of difficult and at times unpleasant tasks. Judicial officers are nonetheless required to “administer justice to all persons alike without fear, favour or prejudice in accordance with the Constitution and the law.” To this end they must resist all manner of pressure, regardless of where it comes from. This is the constitutional duty common to all judicial officers. If they deviate, the independence of the judiciary would be undermined and in turn the Constitution itself.”
 
The observations above were more or less echoed by the Supreme Court of Uganda in the Uganda Polybags case when the integrity of Twinomujuni, JA, was first challenged by a petitioner. All 7 Justices of the Supreme Court were of the unanimous view when they observed as follows:-
 
“Before we take leave of this matter we would like to reiterate our concern which we expressed in Constitutional Petition No. 1 of 1997, Tinyefuza v. Attorney General, and Civil Application No. 9 of 2000, G. M. Combined (U) Ltd v. A.K Detergents, over the growing tendency to level charges of bias or likelihood of bias against judicial officers. We would like to make it clear that litigants in this country have no right to choose which judicial officer should hear and determine their cases. All judicial officers take the oath to administer justice to all manner of people impartially, and without fear, favour, affection or ill will. That oath must be respected.”
 
Mr. Kiggundu-Mugerwa proposed and applied that I disqualify myself from entertaining the proceedings before me, and that the complainants retain another advocate to handle their case because, in his view, my “mind was clouded.” As is clearly shown by the pronouncement of the Supreme Court above, Mr. Kiggundu-Mugerwa had no right to make an application that I be replaced by another judge in his case. He also required no leave of court to retain another advocate to represent his firm in the appeal for it was his right to choose who to retain to do so. His application was therefore redundant and immaterial.
 
It is evident from the foregoing discussion that the only persons in this matter whose minds are “clouded” are the complainants because they are, without a doubt in my mind, confused about their roles as advocates and litigants in the matter. The large amounts of prospective fees have compromised the independence of their minds as advocates. And as a result of that confusion, one of them has engaged in gross misconduct and made a farce of the proceedings in this court. The complainants therefore have no moral authority to fire the judge but should take the consequences of their actions.
 
In Kay v. Ehrler, et al, 499 U.S. 432, Justice J. P. Stevens of the United States Supreme Court in his opinion for the court observed that history has often proved that even a skilled lawyer who represents himself is at a disadvantage in contested litigation. Ethical considerations may make it inappropriate for him to appear as a witness. He is deprived of the judgment of an independent third party in framing the theory of the case, evaluating alternative methods of presenting the evidence, cross-examining hostile witnesses, formulating legal arguments, and in making sure that reason, rather than emotion, dictates the proper tactical response to unforeseen developments in the courtroom. Like the learned judge observed in that case, this case goes to show that the old adage still rings true; "a lawyer who represents himself has a fool for a client."

In the end result, I find that this application was intended to delay the course of justice by preventing the proceedings before me from continuing to their final conclusion. It was also prematurely brought, incompetent and in very bad taste. I therefore hereby exercise my discretion in the matter and I decline to disqualify myself. The application is hereby dismissed, with the contempt that it deserves, and with costs to the appellants. The appeal shall now proceed on its merits.

Irene Mulyagonja Kakooza
JUDGE
08/12/2010