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Auditor General v Achimo (Civil Appeal No. 127 of 2021)

Court of Appeal · [2023] UGCA 110 · 2023 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
First appeal from High Court decision allowing a judicial review application
Decision
Appeal allowed; High Court ruling set aside and respondent's judicial review suit dismissed with costs

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Holding

The Court of Appeal held that all reports of the Auditor General, including special audit, forensic and annual reports, are made for the benefit of Parliament regardless of who requested them, and are therefore protected by statutory immunity under section 38 of the National Audit Act 2008. Consequently no civil proceedings could be instituted against the Auditor General on the basis of such reports, and the High Court should not have sustained the respondent's judicial review suit. While auditors' investigatory reports could at common law be challenged for unfairness, the express statutory immunity displaced that position. The appeal was allowed, the High Court ruling and orders set aside, and the respondent's suit dismissed with costs.

Facts

Between 2018 and 2020 the Auditor General conducted investigations into the financial affairs of Soroti University and issued three reports: a Forensic Investigation Report, a Special Investigation Report and an Annual Report on the University's financial statements. The respondent, the University Secretary and Accounting Officer, felt the reports wrongly implicated her in financial misconduct and were issued without affording her a fair hearing. She filed a judicial review application (combined with an application for extension of time) in the High Court at Soroti, challenging the reports as illegal, irrational and motivated by malice and bad faith. The High Court allowed the application, declared the reports illegal, quashed them by certiorari, issued prohibition and injunction orders, and awarded costs to the respondent. The Auditor General appealed, contending that his reports are made for the benefit of Parliament, contain no decisions amenable to judicial review, and are protected by statutory immunity under the National Audit Act 2008.

Issues

  1. Whether the respondent's application for extension of time for filing her judicial review application should have been denied.
  2. Whether the respondent's judicial review application should not have been entertained.
  3. Whether there were grounds for allowing the respondent's application for judicial review.
  4. What remedies are available to the parties.
  5. Whether reports of the Auditor General contain decisions amenable to judicial review and whether they are protected by statutory immunity under section 38 of the National Audit Act 2008.

Orders

  • Appeal allowed.
  • The ruling and orders of the learned trial Judge set aside.
  • An order substituted dismissing the respondent's suit in the trial Court.
  • Costs to the appellant.

Key headnotes

Judicial Review — Statutory Immunity of Auditor General — National Audit Act 2008 s.38
All reports of the Auditor General are made for the benefit of Parliament and are protected by statutory immunity under section 38 of the National Audit Act 2008; no civil or criminal proceedings may be instituted against the Auditor General on the basis of any such report.
Auditor General — Audit Reports — Origin of Request Immaterial
It is immaterial who originated the request for an audit; once the Auditor General undertakes an audit he owns it and must submit a report to Parliament, so that the report is made for the benefit of Parliament regardless of whether the request came from a third party.
Judicial Review — Decision-Making Process — Investigative and Reporting Bodies
At common law, decisions to investigate and to make reports may be challenged for unfairness by way of judicial review where the report may cause severe injury to an individual, and a body need not exercise quasi-judicial functions for its decisions to be amenable to review; judicial review is concerned with the decision-making process rather than the decision itself.
Judicial Review — Grounds — Illegality, Irrationality and Procedural Impropriety
Administrative action is subject to control by judicial review on three grounds: illegality, irrationality (Wednesbury unreasonableness) and procedural impropriety.
Auditor General — Purpose of Audit Reports — Constitution Article 163 and National Audit Act 2008
Upon proper interpretation of Article 163 of the Constitution and the National Audit Act 2008, all reports of the Auditor General must be submitted to and debated by Parliament, and the primary use of such a report is to assist Parliament in scrutinising public expenditure, not the prosecution of any person.

Legislation cited (23)

  • Judicature Act Cap. 13 s.36(1)
  • Judicature Act Cap. 13 s.36(7)
  • Judicature (Judicial Review) Rules 2009 Rule 5
  • Judicature (Judicial Review) Rules 2009 Rule 15
  • Judicature (Court of Appeal Rules) Directions S.I 13-10 Rule 30(1)(a)
  • National Audit Act 2008 s.13(3)
  • National Audit Act 2008 s.13(4)
  • National Audit Act 2008 s.15
  • National Audit Act 2008 s.16
  • National Audit Act 2008 s.17
  • National Audit Act 2008 s.18
  • National Audit Act 2008 s.19(3)
  • National Audit Act 2008 s.19(4)
  • National Audit Act 2008 s.21
  • National Audit Act 2008 s.22
  • National Audit Act 2008 s.38(1)
  • National Audit Act 2008 s.38(2)
  • National Audit Act 2008 s.39
  • Constitution of Uganda 1995 Article 154(3)
  • Constitution of Uganda 1995 Article 163
  • Constitution of Uganda 1995 Article 163(3)
  • Constitution of Uganda 1995 Article 163(4)
  • Constitution of Uganda 1995 Article 126(2)(e)

Cases cited (19)

  • Makula International Ltd v His Eminence Cardinal Nsubuga and Another (Civil Appeal No. 4 of 1981)
  • Horizon Coaches Ltd v Rurangaranga and Another (Criminal Appeal No. 18 of 2009)
  • Bank of Uganda v COWE (Civil Appeal No. 35 of 2007)
  • Dott Services Ltd v Attorney General and Auditor General (Miscellaneous Cause No. 125 of 2009)
  • Comtel Integrators Africa Ltd v Auditor General (Miscellaneous Cause No. 11 of 2010)
  • Philadelphia Trade & Industry Ltd v Kampala Capital City Authority (Revision No. 15 of 2012)
  • Koluo Joseph Andrew and 2 Others v Attorney General and Others (Miscellaneous Cause No. 106 of 2007)
  • Anup Singh Choudry v Attorney General (Civil Suit No. 57 of 2012)
  • Nakachwa v National Drug Authority and Another (Miscellaneous Cause No. 186 of 2011)
  • Banco Arab Espanol v Bank of Uganda [1999] 2 EA 22
  • Mafabi v Attorney General (Constitutional Petition No. 14 of 2012)
  • Makula International Ltd vs. Cardinal Nsubuga [1982] HCB
  • Kifamunte v Uganda (Criminal Appeal No. 10 of 1997)
  • Council of Civil Service Unions v Minister for the Civil Service [1984] 3 All ER 935
  • Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223
  • Edwards (Inspector of Taxes) v Bairstow [1956] AC 14
  • Chief Constable of the North Wales Police v Evans [1982] 3 All ER 141
  • Attorney General v Tinkasimire and Others (Civil Appeal No. 208 of 2013)
  • Re Pergamon Press Ltd [1970] 3 All ER 535
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.