Court name
Supreme Court of Uganda
Case number
Civil Appeal-2010/8
Judgment date
10 February 2011

H/W Aggrey Bwire v Attorney General & Anor (Civil Appeal-2010/8) [2011] UGSC 83 (10 February 2011);

Cite this case
[2011] UGSC 83

 

 

THE REPUBLIC OF UGANDA

 

IN THE SUPREME COURT OF UGANDA

AT KAMPALA
 

 

 
 
 
 
(CORAMODOKI, CJ, TSEKOOKO, OKELLO, KITUMBA, TUMWESIGYE, JJ.S.C.)
 
 
CIVIL APPEAL NO.08 OF 2010
 
 
 
 
BETWEEN

 

HIS WORSHIP AGGREY BWIRE::::::::::::::::::::::::::::::::::::::APPELLANT
 

 

AND
 

1. ATTORNEY GENERAL
2. JUDICIAL SERVICE
COMMISSION :::::::::::::::::::: RESPONDENTS

 

[Appeal against the judgment of the Court of Appeal at Kampala (Mpagi- Bahigeine, Engwau and Twinomujuni JJA) dated 14th December 2009 in Civil Appeal No.9 of 2009]
 

Second Appeal-Judicial review-application dismissed with costs-matter of discipline-section 9(6) of the Judicail service commission act
 

JUDGMENT OF C.N.B. KITUMBA JSC

 

This is a second appeal against the judgment of the Court of Appeal which dismissed the appellant’s appeal. The background to the appeal as agreed upon by both parties is as follows:

 

The appellant, His Worship Aggrey Bwire, was at the material time stationed at Nabweru court as Magistrate Grade1. He was in-charge of the station. On 25-02-08 the Chief Registrar, acting on the directive of the Judicial Service Commission, hereafter referred to as the 2nd respondent, interdicted him. The disciplinary committee of the 2nd respondent, hearing the matter, leading to his interdiction was constituted by three members. The appellant being aggrieved by the act of interdiction and the way the Judicial Service Commission was proceeding, applied for a judicial review in the High Court. The application was dismissed with costs.
 
He appealed to the Court of Appeal which dismissed his appeal. Hence this appeal to this Court on the nine grounds:
 
When the appeal came up for hearing before this Court, learned Counsel, David Ssempala of Kigozi Ssempala Mukasa Obonyo (KSMO) Advocates appeared for the appellant. The respondents were represented by, Ms Margaret Nabakooza, Principal State Attorney. Counsel for the parties had already filed written submissions and requested Court to rely on the same, which this Court accepted.
 
In his written submissions counsel for the appellant argued the grounds of appeal in the following order. Ground 1 alone, grounds 2 and 3 together, ground 4 alone, then grounds 5 and 7 together, ground 6 alone and lastly grounds 8 and 9 together. The respondent argued grounds 1,2,3 and 4 together grounds 6 and 5 together, ground 7 alone and grounds 8 and 9 together. In this judgment I will deal with grounds 1, 2, 3 and 4 together ground 7 alone 6 and 5 jointly and grounds 8 and 9 together and in that order.
Ground 1
The Learned Honourable Justices of Appeal erred in law when they completely failed to rule on whether or not interdiction or removal of the Appellant from his judicial function was a matter of discipline within the meaning of S.9(6) of the Judicial Service Act thus arrived at wrong conclusion.

Submitting on ground 1 counsel for the appellant contended that the learned Justices of the Court of Appeal failed to exhaustively deliberate on whether the interdiction of the appellant or his removal from the performance of his judicial function was a matter of discipline as envisaged by section 9(6) of the Judicial Service Act. By reason of that failure they came to three aboard conclusions.

Firstly, they did not correctly determine the requisite quorum and composition of the Commission in disciplining judicial officers.

Secondly they failed to reconcile section
s 9(2) and 9(6) of the Judicial Service Act and Regulation 14(1) of the Judicial Service (Complaints and Disciplinary Proceedings) Regulations 2005 (SI 88/2005).

Thirdly, they failed to address the right question whether it was proper delegation for the Commission to delegate to the Disciplinary Committee in terms of quorum and composition in view of the provisions of section 9(6) of the Judicial Service Act.

Appellant’s counsel criticized the High Court and the Court of Appeal
for accepting the respondent’s submission that interdiction is not a matter of discipline envisaged under section 9(6) of the Judicial Service Act but merely an interim disciplinary measure taken against an officer pending further determination of the complaint against him or her by the Commission.
 
Counsel argued that if the Court of Appeal had held that interdiction is a disciplinary measure they would have not gone wrong about the quorum and composition of the second respondent sitting on 14/02/2008. Counsel submitted that Article 148 of the Constitution gives the second respondent powers to appoint, confirm and to exercise disciplinary control over judicial officers and to remove such persons from office. He contended that the word discipline used in section 9(6) of the Judicial Service Act is generically derived from Article 148 of the Constitution. Apart from the contextual meaning of the word interdiction” appellant’s counsel referred to the following dictionary meaning of the same.

Black’s Law Dictionary, 6th Edition, St Paul Minn West Publishing Co. 1990 it defines word “interdiction” thus; Civil Law, a judicial decree by which a person is deprived of the exercise of his civil rights;” the same Black’s Law Dictionary 8th Edition defines the word “discipline” thus “..3 types of discipline are common: disbarment, suspension and reprimand”. While according to Macmillan Dictionary for Students “interdict (4) means “….exclude from certain rights”.

Counsel argued that since the appellant was removed from the performance of his judicial duties that was “deprivation” or exclusion” which is synonymous with the removal envisaged under sections 9(1), 9(2) and 9(6) of the Judicial Service Act. He argued that, therefore, interdiction as provided for under Regulation 25 of the Judicial Service Commission Regulations 2005 (SI 87/2005) means removal and must have been effected according to Sections 9(2) and 9(6) of the Judicial Service Act which is couched in mandatory terms by using the word “shall

In support of his submission that interdiction is disciplinary action counsel relied on the case of Cheborion Barishaki Vs AG. Misc. App. No. 851 of 2004 in which Katutsi J stated as follows:
“In any case in interdicting the applicant, the learned Solicitor General was carrying out a disciplinary action.”
Counsel further relied on the following statement from Barnwell Vs AG of Guyana (1994) 3 LRC 30 at 83 wherein suspension, which in counsel’s view, is synonymous with interdiction was given a liberal interpretation and equated to dismissal.

“While equating suspension and dismissal may be debated, the observation serves to emphasize two important features that suspension and dismissal have in common: in each case, the officer is deprived of his entitlement to perform his duties in the public service so long as the suspension or dismissal stands….”

In conclusion he submitted that when the disciplinary committee of the second respondent directed the appellant’s interdiction it was handling a substantive matter of discipline within the meaning of section 9(6) of the Judicial Service Act and not a “Preliminary matter” as there is no room for Preliminary disciplinary matter” in the Act

In reply, counsel for the respondents supported the finding of the Court of Appeal that interdiction was merely an interim disciplinary measure, taken against an officer pending further determination of the complaint against him or her by the Judicial Service Commission.
Grounds 2 and 3
 
I now consider grounds 2 and 3 which read:
2.       The Learned Honourable Justice of Appeal erred in law
when they failed to hold that Regulation 14(1) of the Judicial Service (Complaints and Disciplinary Proceedings) Regulations 2005 (SI 88/2005) is ultra vires the provisions of S.9(2) and 9(6) of The Judicial Service Act in terms of quorum and composition
 
3.       The learned Honourable Justices of Appeal grossly misdirected themselves in law when they failed to identify that the issue in contention was whether or not there was proper delegation by the Second Respondent when enacting Regulation 14(1) of the Judicial Service (Complaint and Disciplinary Proceedings) Regulations 2005 (SI 88/2005) and not whether the Second Respondent was empowered to make regulations or delegate its functions to the Disciplinary Committee.
 
The submissions by the appellant’s counsel on these grounds were mostly a repetition of his arguments on ground 1. Appellant’s counsel, complained further that Regulation 14(1) of the Judicial Service (Complaint and Disciplinary Proceedings) Regulations 2005 (SI 88 of 2005) is ultra vires section 9(1) 9(2) and 9(6) of the Judicial Service Act in terms of quorum and composition. Additionally, by the same regulation 14(1) there was improper delegation by the second respondent to the Disciplinary Committee.

The appellant’s counsel vehemently argued that in matters of discipline or proposal to removal a judicial officer from office, section 9(1) and 9(6) of the Judicial Service Act must be adhered to.

According to section 9(1) of the Act the meeting had to be presided over by the Chairperson or the Deputy Chairperson of the Commission and in the absence of both the Justice of the Supreme Court.

Section 9(6) of the Act makes the presence of the Attorney General mandatory in any matter of discipline or proposal to remove a judge or any other judicial officer
from office. Besides, the decision at that meeting must be carried by at least six members of the Commission.

Counsel argued further that although by section 27 of the Act the Commission is empowered to make its own regulations, regulation 14 (2) of The Judicial Service (Complaints and Disciplinary Proceedings) Regulations 2005 (SI. 88 of 2005) which delegated the full Commissions powers to the Disciplinary Committee and altered the composition of the Commission when dealing with disciplinary matters was ultra vires the Act. Consequently, the actions of the Disciplinary Committee which sat on 14/2/2005 and purported to interdict the appellant were null and void as the said Disciplinary Committee lacked the legal capacity. According to Regulation 14(1) The Disciplinary Committee of the Commission is comprised of at least three members who constitute a quorum.

Appellant’s counsel quoted the following authorities Equator Inn Ltd Vs Tomasyan [1971] E.A 405,