Hon Justice Anup Singh Choudry v Attorney General (Civil Appeal No. 0091 of 2012)

Court of Appeal · [2014] UGCA 18 · 2014 Appeal Partly Allowed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Civil appeal from High Court dismissal of an application for judicial review of a Judicial Service Commission report

Decision

Appeal partly allowed; Judicial Service Commission report declared null and void and quashed by certiorari; prohibition refused as unnecessary

The full judgment

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Holding

The Court of Appeal held that section 11 of the Judicial Service Act, requiring observance of natural justice, applies to proceedings concerning the removal of a High Court judge, contrary to the trial judge's finding. The Judicial Service Commission was obliged, before recommending a removal tribunal, to allow the appellant to present his case at its meeting and to communicate its decision to him. Its failure to do so violated his non-derogable right to a fair hearing under Articles 28(1) and 44(c) and Article 42 of the Constitution, rendering its report ultra vires, null and void. There was also apparent bias from Commissioner Ssempebwa's participation. The appeal was allowed in part and the JSC report quashed.

Facts

The appellant, a High Court judge appointed in May 2008, became the subject of a complaint to the Judicial Service Commission concerning his prior conduct as a solicitor in England and Wales, where he had been struck off the roll. The Uganda Law Society, through its representative Commissioner Ssempebwa, submitted documents and requested the JSC to consider his status on the Bench. The Chairman invited the appellant's comments and he responded. The JSC subsequently resolved on 2 July 2009 to advise the President to appoint a tribunal under Article 144 to investigate his possible removal. The appellant was never summoned to appear before the JSC, was not allowed to cross-examine, and was not informed of the decision until April 2012 when he learned of a constitutional petition seeking enforcement of the recommendation. Commissioner Ssempebwa, who had helped initiate the complaint, sat on the deciding meeting, and the appellant had raised objections to his participation that went unanswered. The appellant sought judicial review, which the High Court refused.

Issues

Whether the trial judge erred in finding that a valid complaint had been lodged with the Judicial Service Commission against the appellant.
Whether the appellant was accorded the right to a fair hearing by the Judicial Service Commission before it recommended appointment of a removal tribunal.
Whether section 11 of the Judicial Service Act applies to disciplinary proceedings against a judge of the High Court.
Whether there was bias arising from Commissioner Ssempebwa and the Attorney General sitting on the meeting that decided the appellant's matter.

Orders

Appeal partly succeeds; grounds 3, 4, 5, 6, 7 and 9 allowed.
Grounds 1, 2 and 8 of the appeal dismissed.
The report of the Judicial Service Commission to the President is declared null and void for the proceedings being ultra vires for failure to give the appellant a fair hearing and for bias.
The Judicial Service Commission report is quashed by certiorari.
No order of prohibition made, being unnecessary in light of the declaration.
Costs to the appellant in the Court of Appeal and in the High Court below.

Key headnotes

Natural Justice — Right to Fair Hearing — Judicial Service Commission Removal Proceedings

Before the Judicial Service Commission recommends to the President the appointment of a tribunal to consider the removal of a judge, it must, under section 11(b) of the Judicial Service Act, give the judge the right to defend himself and present his case at a meeting of the Commission or any inquiry set up for the purpose, and notifying the judge of the complaint and inviting written comments is insufficient.

Judicial Service Act — Application of Section 11 to High Court Judges

Section 11 of the Judicial Service Act, requiring observance of the rules of natural justice in disciplinary and removal matters, applies to all judicial officers including a judge of the High Court; there is no provision limiting it to officers the Commission is empowered to remove, and section 9(6) expressly references a proposal to remove a judge.

Fair Hearing — Non-derogable Right — Articles 28(1) and 44(c) of the Constitution

The right to a fair hearing is a non-derogable right under Articles 28(1) and 44(c) of the Constitution, and a person appearing before an administrative body has a right to just and fair treatment under Article 42; constitutional provisions establishing a body do not displace the requirement to apply the rules of natural justice.

Bias — Accuser Sitting as Adjudicator — Apparent Bias

Where a Commission member who actively participated in initiating a complaint then sits on the panel that determines the matter, and a pending objection to his participation is ignored, apparent bias arises, vitiating the decision even if actual bias is not established.

Judicial Review — Effect of Breach of Natural Justice — Ultra Vires Decision

A decision of the Judicial Service Commission reached without affording the affected judge a fair hearing and tainted by apparent bias is ultra vires, null and void, and may be quashed by an order of certiorari.

Bias — Ex Officio Members — Attorney General

The mere presence and participation of the Attorney General, an ex officio member of the Judicial Service Commission under Article 146(3), in a removal-related decision, and his subsequent conveyance of that decision to the President, does not of itself constitute bias absent evidence of involvement in framing the complaint.

Legislation cited (29)

Constitution of Uganda Article 28(1)
Constitution of Uganda Article 42
Constitution of Uganda Article 44(c)
Constitution of Uganda Article 128
Constitution of Uganda Article 144
Constitution of Uganda Article 146
Constitution of Uganda Article 147
Constitution of Uganda Article 148
Constitution of Uganda Article 151
Judicial Service Act (cap 14) s.9
Judicial Service Act (cap 14) s.10
Judicial Service Act (cap 14) s.11
Judicial Service Act (cap 14) s.12
Judicial Service Act (cap 14) s.24(2)(b)
Judicial Service Act (cap 14) s.27
Judicature Act (cap 13) s.33
Judicature Act (cap 13) s.36
Judicature Act (cap 13) s.38
Judicature Act (cap 13) s.41
Judicature Act (cap 13) s.42
Civil Procedure Rules Order 52 Rules 1 and 3
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) s.2
Uganda Law Society Act (cap 276) s.3
Uganda Law Society Act (cap 276) s.9
Uganda Law Society Act (cap 276) s.10
Rules of the Court of Appeal Rule 30(i)(a)

Cases cited (8)

Pandya v R [1957] EA 336
Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
Uganda v Atugonza Francis (Constitutional Reference No. 31 of 2010)
Barnwell v Attorney General [1994] 3 LRC
Rees and Others v Crane (Privy Council Appeal No. 13 of 1993)
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
Times Newspaper Limited v. Anup Singh Choudry Case No. 98/0829/1

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