THE REPUBLIC OF UGANDA
IN THE CONSTITUTIONAL COURT OF UGANDA
CORAM: S.T. MANYINDO - DCJ. C.M. KATO - JA. J.P. BERKO - JA.
S.G. ENGWAU - JA. A. TWINOMUJUNI - JA.
CONSTITUTIONAL PETITION NO.14 OF 1997
ISMAIL SERUGO ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PETITIONER
1. KAMPALA CITY COUNCIL :::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENTS
2. ATTORNEY GENERAL
REASONS FOR THE DECISION
This ruling is in respect of preliminary objections raised by the two counsel who appeared for the respondents. After listening to the submissions made by both sides we upheld the objections and struck out the petition while reserving the reasons for the decision. We now proceed to give the reasons.
The brief facts leading to this petition are as follows: On 5-9-97 the petitioner, Ismail Serugo, was arrested by an official of Kampala City council called Steven Mungoma. On the same day he was taken to the Magistrate Grade II’s Court at Kampala City Hall where he was charged with the offence of obstructing a Police Officer on duty, contrary to section 106 of the Penal Code Act. The petitioner pleaded guilty to the charge. He was convicted and sentenced to four months imprisonment. He appealed to the Chief Magistrate, Buganda Road Court against conviction and sentence. His appeal was allowed on the ground that he had been convicted on a non-existing offence. He was released from prison on 22-10-97. He then filed this petition seeking for a declaration that the acts of the respondents were inconsistent with the Constitution and were a violation of his fundamental human rights granted by the provisions of Articles 21(i), 23(i), 28(7) and (12), 25(2) and 31(4) and (5) of the Constitution. The petitioner further prayed for compensation of shs.5, 000,000= per day for the 50 days he was in detention.
When the petition came up for hearing both counsel for the respondents raised three preliminary objections. These were:-
1. That the petition had been brought against the wrong parties,
2. That there was no constitutional issue requiring the interpretation by this Court, and
3. That the petition was time barred.
Mr. Sendege who appeared for the first respondent submitted that the wrongs complained of were not committed by an employee of Kampala City Council since the case was prosecuted by an officer from the office of the DPP and the conviction was pronounced by a court established under the Magistrates’ Courts Act. He pointed out that all these officers are employed and paid by the Central Government and not the City Council; therefore he contended, there was no cause of action against Kampala City Council. It is remarkable that Mr.Mbabazi, learned counsel for the petitioner did not refer to this point in his long submission.
According to the contents of the petitioner’s affidavit sworn in support of this petition and that of Steven Mungoma sworn in support of the reply to the petition, there is no doubt that the only role played by the first respondent’s employee (Steven Mungoma) was to arrest the petitioner.
The petitioner does not show in his affidavit that both the prosecutor and the Magistrate were employees of the first respondent. Although in paragraph 2(g) of his petition the petitioner says that it was the first respondent who set in motion the acts which culminated in violation of his human rights, we are of the view that the first respondent or its agents were not responsible for whatever happened to the petitioner after his arrest, which arrest was lawful in our view, and in any case, counsel for the petitioner conceded, quite rightly in our view, that any action arising from the arrest was time barred. In the circumstances we agree that the petitioner had no cause of action against the first respondent.
Mr. Tumwesige counsel for the second respondent maintained that the Attorney general had been wrongly made a party to the petition. It was his contention that the Government cannot be made answerable for acts of a person carrying out his or her judicial functions. He based his argument on the provisions of section 4(5) of the Government Proceedings Act (Cap. 69) and the case of: Attorney General v Olwoch (1972) EA 392. He further contended that as the petitioner was lawfully convicted and sentenced by a competent Court of law, his detention in prison for 50 days was lawful under the provisions of Article 23(1) of the Constitution. On the other hand Mr. Mbabazi submitted that the second respondent was properly joined to these proceedings as its agent (the Magistrate) acted unconstitutionally. He pointed out that the second respondent was liable on “public torts” principle. He based this argument on the case of: Mahoraj v Attorney General of Trinidad and Tobago (No.2) 1197812 All E.R. 670. It was Mr. Mbabazi’s contention that section 4(5) of Government Proceedings Act is not applicable to constitutional cases and that Olwoch (supra) upon which the second respondent relied was not a constitutional case. He also argued that the case of: Serapio Rukundo v Attorney General [Constitutional Case No.3/971 which decided that section 4(5) of government Proceedings Act is applicable to constitutional cases and was consistent with article 128(4) of the Constitution was wrongly decided.
Section 4(5) of Government Proceedings Act upon which Mr. Tumwesige based his submission on this point reads as follows: -
“4(5). No proceedings shall lie against the Government by virtue of this section in respect of anything done or omitted to be done by any person while discharging or purporting to discharge any responsibilities of a judicial nature vested in him, or any responsibilities which he has in connection with the execution of judicial
These provisions clearly do exempt the Government from liability for acts or omissions of a judicial officer while acting in his or her official capacity. Section 48(1) of the Judicature Statute and Article 128(4) of the Constitution also do provide protection to judicial officers while carrying out their judicial function. In Olwoch (supra) where the facts were almost the same as in the present case, the Court of Appeal for East Africa held that no suit lies against the Government to acts done in discharge of judicial functions. In the present case the Magistrate who tried, convicted and sentenced the petitioner was obviously carrying out his judicial function for which the government cannot be held liable. We do not agree with Mr. Mbabazi’s contention that section 4(5) of Government Proceedings Act does not apply to constitutional cases. In our view the section applies to both ordinary civil suits and constitutional matters. This court was of the same view in Rukundo (supra). We do not agree with the counsel for the petitioner that that case was wrongly decided. Accordingly the petitioner has no cause of action against the second respondent.
The second objection is that this court has no jurisdiction on the matter. Mr. Tumwesige argued at length that this petition was improperly instituted in this Court under Article 137 of the Constitution as there is no issue involving interpretation of the Constitution. In his view the matter should have been filed in any other competent court for redress under Article 50 of the Constitution. He cited the decision of the Supreme Court in the case of: Attorney General v Tinyefuza [Supreme Court Constitutional Appeal No.1/971 in support of that argument. Mr. Sendege agreed with Mr. Tumwesige on this point. Mr. Mbabazi had a different view on the matter. He submitted that this court has jurisdiction to concurrently deal with the Articles 50 and 137 of the Constitution. It was his view that this Court does not only handle matters concerning the interpretation of the Constitution but it also handles the enforcement of the Constitution when the violation of its provisions occurs. He also relied on Tinyefuza (supra).
In our view this court should normally be involved only in matters requiring interpretation of the Constitution under Article 137. In the instant case the question of interpretation of the constitution does not arise therefore this court has no jurisdiction in the matter.
On the question of the petition being time barred, which was the last ground of the preliminary objection, Mr. Sendege the learned counsel for the first respondent submitted that the petition was time barred because it had been filed 30 days after the occurrence of the acts complained of by the petitioner which was contrary to rule 4 of Legal Notice No.4 of 1996. On the other hand Mr. Mbabazi the learned counsel for the petitioner argued that Legal Notice No.4/96 is unconstitutional as it forecloses the rights of an individual to seek redress.
Rule 4(1) of Modifications to the Fundamental Rights and Freedoms (Enforcement Procedure) Rules 1992 Directions 1996, upon which this objection was based reads as follows;
:“4(1). The petition shall be presented by the petitioner by lodging it in person, or, by or through his or her advocate, if any, named at the foot of the petition, at the office of the
Registrar and shall be lodged within thirty days after the date of the breach of the Constitution complained of in the petition.”
We considered this matter in Rukundo (supra) and stated thus:
“The above rule provides that a petition shall be lodged within thirty days after breach of the constitution complained of. The purpose of this rule is not hard to find. It takes into account among others the importance of constitutional cases which must be attended to expeditiously and seeks to cut out stale cases. We do not therefore agree with Mr. Kayondo S.C. that in constitutional matters there is no time limit. He did not give us any authority for that proposition. We think that this petition offended against the said Rule 4(1). We therefore, uphold the first objection.”
We still hold the same view.
We agree with Mr. Mbabazi that detention is a continuing wrong. In this case the cause of action in respect of unlawful detention would have arisen by 22-10-97 when the petioner was released from prison. It follows that petition should have been filed on 22-11-97.However it was filed on 24-11-97 which was clearly out of time.
It was for those reasons that we allowed the objections and struck out this petition with costs to the respondents.
Dated at Kampala this 30th day of April 1998
DEPUTY CHIEF JUSTICE
JUSTICE OF APPEAL
JUSTICE OF APPEAL
JUSTICE OF APPEAL
JUSTICE OF APPEAL