By Spy Uganda
High Court Judge Philip Odoki at Kampala Civil Division has struck off the preliminary objection application with costs filed by BOU and Attorney General in a case challenging the illegal appointment of the Director Supervision Twinemanzi Tumubweine.
Anthony Mukose, through his lawyers of Kwesigabo, Bamwine and Walubiri Advocates, ran to court last year, asking for the termination of the Twinemanzi’s appointment, declaring his appointment illegal accusing him of lacking qualifications for the job.
According to Mukose, Twinemanzi was hand-picked since there was no advert or internal memo for the job. Mukose also says that the attorney general went ahead to okay the appointment even when the IGG had blocked the move. it’s worth noting that the parliamentary Tripartite Committee’s recommendations had also quashed the appointment.
However, Governor in response explained that he made the appointments pursuant to his delegated authority given to him by the Board through a board resolution dated 30th May 2012 in which he was permitted by the Board to consider and approve, subject to ratification of the Board, all matters and issues that would call for board consideration and approval to enable the bank to continue to operate until when the board would be in place.
As for the qualifications of the employees, the Governor explained that the Bank recruits persons with first or upper second degree, but in the case of the 3rd Respondent, he was recruited on the basis of his specialized skills acquired after completing his first degree.
However, Governor’s response didn’t stop Mukose to seek Court’s hand declaring that;
(i) The actions and decisions of the Governor and the 2nd respondent (BoU) regarding the sourcing, appointment and confirmation of the 3rd (Twinemanzi Tumubweine) respondent as the 2nd respondent’s Executive Director Supervision is tainted with illegality, irrationality, procedural impropriety and unfairness and as such void.
(ii) The actions of the 2nd respondent without a board resolution
before 24 th August 2020 contravened section 28 (1) of the Bank
of Uganda Act, are illegal, irrational and void.
(iii) The appointment of the 3rd respondent before 17 th August 2020
and after 24th August 2020 is inconsistent with the law, procedurally irregular, illegal and void.
(iv) The Board of the 2nd respondent cannot purport to confirm the
appointment of the 3rd respondent made irregularly.
Mukose further asked Court to issue order of mandamus to compel the 2nd respondent to terminate the purported appointment of the 3rd respondent as the 2nd respondent’s Executive Director Supervision.
Also asked Court to issue an order of mandamus to compel the 2 nd respondent to take all lawful, credible, transparent and proper action to source and recruit a qualified person to the office of Executive Director Supervision.
Further, Mukose asked Court to order that the Respondents pay the costs of this application.
However, Counsel for the respondents raised 5 preliminary objections regarding the propriety of this application among them including one that states that;
”The applicant does not have the locus standi to commence the above application for judicial review. Counsel submitted that the applicant described himself as a citizen of Uganda, a practising journalist, and a passionate activist in the field of human rights, rule of law, good governance and political and socio-economic environment.”
However, after all the above, Odoki observed that;
Mukose was legally right to drag the BoU to court noting that the determination of the question of whether he has
sufficient interest in the matter being complained about that is something only determined by the Court following the exercise of judicial discretion.
”Since a preliminary objection cannot be properly raised if it involves the
exercise of court’s discretion, I will therefore find that the 1 st preliminary
objection was improperly raised. It is accordingly overruled,” reasoned Odoki.
”However, as for the 2nd – 5th preliminary objections, in my view, they were properly raised. They are point of law based on the evidence presented by the applicant. They do not involve the exercise of courts discretion. For convenience, I shall first determine the 3 rd and 5th preliminary objections and then proceed to determine the 2nd and 4th objection,” he added.
Odoki further noted that Counsel for the respondents submitted that the applicant did not show that he filed any complaint to the 2nd respondent’s Board of Directors. Counsel did not however point out any laws, regulations or practice within the Bank of Uganda which permitted the applicant to have made a similar complaint to the Board for redress.
”On the 5th objection, I find the argument by counsel for the respondents
that, since the applicant was neither the author nor one of the people to whom the documents attached to his affidavit was copied, therefore he is not possessed with personal knowledge of the contents, rather strange and devoid of any legal merit. Order 19 Rule 3(1) of the Civil Procedure Rules which was relied upon by counsel for the applicant does not in any way provide that a deponent cannot attach to their affidavits documents not authored by them or not copied to them. What the rule provides is that affidavits should be confined to such facts as the deponent is able of his or her knowledge to prove. The applicant stated that those facts were within his knowledge. How he got to know the facts is immaterial,” Odoki further reasoned.
In the end, Odoki ruled that in exercising this power the court does not consider the merits of the case but is concerned with the decision-making process.
He added, ”In other words there must be a decision made by the inferior courts, tribunal and administrative or statutory authorities before this court can examine the process leading to the impugned decision.”
Ooki noted, ”It is for this reason that I entirely agree with my brother judge Hon. Justice V.F Musoke – Kibuuka in Dott services Ltd (supra) when he held that certiorari issues to quash decisions made by a Statutory body or a Public officer or an inferior court or tribunal. it cannot be against mere findings, recommendations, suggestions or observations.”
He added that since the 2nd respondent only sought advice and the 1st respondent only gave the advice, they are not decisions that can be challenged in judicial review proceedings, those actions are not amenable to judicial review.
”In the end, I find that there is merit in the 2nd and 4th preliminary objection. I will accordingly strike off this application with costs to the respondents. I so order.” he ruled.