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Honourable Justice Anup Singh Choudry v Attorney General (Civil Appeal No. 91 of 2012)

Court of Appeal · [2014] UGCA 147 · 2014 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Civil appeal from High Court judgment in an application for judicial review
Decision
Appeal partly allowed; JSC report declared null and void and quashed for breach of natural justice and bias

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Holding

The Court of Appeal held that the Judicial Service Commission, when making a preliminary determination whether to recommend that the President appoint a tribunal to consider removing a High Court judge, is bound by section 11 of the Judicial Service Act to observe natural justice — including giving the judge the right to defend himself and present his case at a meeting of the Commission. The trial judge erred in holding section 11 inapplicable to High Court judges. A valid complaint had existed, but the JSC denied the appellant a fair hearing and failed to communicate its decision, and apparent bias arose from Commissioner Ssempebwa's participation. The JSC's report was declared ultra vires, null and void, and quashed. Appeal partly allowed.

Facts

The appellant, a Judge of the High Court appointed in May 2008, was the subject of information forwarded to the Judicial Service Commission by the Uganda Law Society regarding his prior conduct as a solicitor in England, where he had been struck off the roll. Commissioner Ssempebwa, the ULS representative on the JSC, wrote on 14 November 2008 directing that the matter be placed on the JSC agenda; the ULS President wrote on 17 December 2008 seeking reversal of his appointment. The JSC Chairman invited the appellant to comment, and the appellant filed a response and raised objections to the JSC's composition, alleging bias. The appellant was never summoned to appear, cross-examine complainants or present his case, and was not informed of the JSC's decision. On 2 July 2009 the JSC advised the President to appoint a tribunal under Article 144(4)(c) to consider his removal. The appellant learnt of the decision only after the ULS filed a constitutional petition. He sought judicial review in the High Court, which declined the orders sought, prompting this appeal.

Issues

  1. Whether the learned trial judge erred in finding that there was a valid complaint lodged with the Judicial Service Commission against the appellant.
  2. Whether the appellant was accorded his right to a fair hearing by the Judicial Service Commission before it recommended the appointment of a tribunal to consider his removal.
  3. Whether there was bias on the part of the Judicial Service Commission on account of the participation of Commissioner Ssempebwa and the Attorney General in the decision against the appellant.

Orders

  • Appeal partly succeeds.
  • All grounds of appeal except grounds 1, 2 and 8 are allowed.
  • Ground 8 of the appeal is dismissed.
  • The report of the Judicial Service Commission to His Excellency the President is declared null and void by reason of the proceedings of the JSC being ultra vires for failure to give the appellant a fair hearing and for bias.
  • The report is accordingly quashed.
  • No order of prohibition is made as it is unnecessary in light of the declaration.
  • Costs to the appellant in the Court of Appeal and in the High Court.

Key headnotes

Natural Justice — Right to Fair Hearing — Judicial Service Commission disciplinary process against a High Court judge
When the Judicial Service Commission makes a preliminary determination whether to recommend to the President that a tribunal be appointed to consider removing a High Court judge, section 11 of the Judicial Service Act obliges it to observe the rules of natural justice, including affording the judge the right to defend himself and present his case at a meeting of the Commission or any inquiry it sets up.
Judicial Service Act — Application of section 11 to judicial officers the JSC cannot itself remove
The natural justice provisions of section 11 of the Judicial Service Act apply to all judicial officers, including a High Court judge whom the JSC has no power to remove; the Act does not confine these provisions to officers the JSC may itself discipline, and had that been the intention the Act would have expressly so stated.
Fair Hearing — Non-derogable right — Administrative decisions
The right to a fair hearing under Articles 28(1) and 44(c) of the Constitution is non-derogable, and Article 42 guarantees just and fair treatment in administrative decisions; constitutional provisions governing the removal of a judge do not displace the requirement to apply principles of natural justice.
Bias — Apparent bias — Participation of an accuser as adjudicator
Apparent bias arises where a member of a decision-making commission both initiates the complaint (as a representative of the complainant body) and then sits in judgment on it; participation by such a member, particularly where an objection of bias against him remains unaddressed, vitiates the decision even if actual bias is not established.
Complaints — Form and competence — Complaint to the Judicial Service Commission
A complaint to the Judicial Service Commission may be oral or in writing, requires no particular format, and is admissible so long as it is written and clearly comprehensible; any person, including the Uganda Law Society as a body corporate acting through its President, has locus to lodge such a complaint against a judicial officer.
Cross-examination — Stage of preliminary determination versus tribunal hearing
At the preliminary stage where the JSC determines whether to recommend appointment of a tribunal, cross-examination of witnesses is not required; the proper forum for cross-examination is the tribunal hearing where the actual determination of removal takes place.

Legislation cited (31)

  • Constitution of Uganda Article 28(1)
  • Constitution of Uganda Article 42
  • Constitution of Uganda Article 44(c)
  • Constitution of Uganda Article 144
  • Constitution of Uganda Article 144(2)
  • Constitution of Uganda Article 144(3)
  • Constitution of Uganda Article 144(4)(c)
  • Constitution of Uganda Article 146
  • Constitution of Uganda Article 146(2)(c)
  • Constitution of Uganda Article 146(3)
  • Constitution of Uganda Article 147
  • Constitution of Uganda Article 147(3)
  • Constitution of Uganda Article 147(d)
  • Constitution of Uganda Article 148
  • Constitution of Uganda Article 151
  • Judicial Service Act (cap 14) s.9
  • Judicial Service Act (cap 14) s.9(2)
  • Judicial Service Act (cap 14) s.9(6)
  • Judicial Service Act (cap 14) s.10
  • Judicial Service Act (cap 14) s.10(1)
  • Judicial Service Act (cap 14) s.11
  • Judicial Service Act (cap 14) s.11(b)
  • Judicial Service Act (cap 14) s.12
  • Judicial Service Act (cap 14) s.27
  • Judicature Act (cap 13) ss.33, 36, 38, 41, 42
  • Judicial Service Commission Regulations 2005 (SI 87 of 2005) Regulation 3
  • Judicial Service Commission Regulations 2005 (SI 87 of 2005) Regulation 4
  • Judicial Service (Complaints and Disciplinary Proceedings) Regulations 2005 (SI 88 of 2005) Regulations 1, 3, 4, 5, 8, 9, 10, 13
  • Uganda Law Society Act (cap 276) ss.2, 3(d), 3(e), 9, 10
  • Civil Procedure Rules Order 52 Rules 1 and 3
  • Rules of the Court of Appeal Rule 30(1)(a)

Cases cited (7)

  • Pandya v R [1957] EA 336
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Uganda v Francis (Constitutional Reference No. 37 of 2010)
  • Barnwell v Attorney General [1994] 3 LRC (Guyana)
  • Rees and Others v Richard Alfred Crane Privy Council Appeal No 73 of 1993, decided on February 14th, 1994
  • Nancy Makokha Baraza v Judicial Service Commission and 9 Others; Constitutional Petition No. 23 of 2012 [2012] eKLR
  • Queen v. Gaisford [1892] 1 QB 381
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.