Wakilii

in the matter of an application for judicial review by Annebritt Aslund (Misc Cause 441 of 2004)

High Court · [2004] UGHCCD 6 · 2004 Application Partly Allowed — Declaration Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for judicial review seeking certiorari to quash a commission of inquiry report
Decision
Declaration granted that the commission report is a nullity. Certiorari and injunction refused.

Observed later treatment

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Holding

The High Court has jurisdiction to judicially review a commission of inquiry report, even where chaired by a High Court judge. A report submitted by the chairperson alone, without the participation or approval of the other commissioners required for a quorum under Legal Notice No. 3 of 2002, is a nullity in law and not a valid report of the commission. The commission acted in breach of natural justice by condemning the applicant as incompetent without affording her an opportunity to be heard. Certiorari does not issue to quash proceedings that are void ab initio, as there is nothing to quash. Declaration granted that the report is a nullity.

Outcome

Declaration granted that the commission report is a nullity. Certiorari and injunction refused.

Facts

Annebritt Aslund was Commissioner General of the Uganda Revenue Authority. In March 2002, a Commission of Inquiry into allegations of corruption in URA was established by Legal Notice No. 3 of 2002, chaired by Lady Justice Julia Sebutinde with two other commissioners, James Kahooza and Mrs. Facon Cousens. The Legal Notice required the commission to be constituted by any two members including the chairperson. On 17 February 2004, Justice Sebutinde submitted a report to the Minister that was not signed by the other two commissioners. Both commissioners publicly disassociated themselves from the report, stating they had not been consulted, no meetings had been held to deliberate on findings, and the report contained changes made unilaterally. The report found Aslund incompetent and unfit to head URA and accused her of frustrating the commission's work. Aslund was never given an opportunity to respond to these allegations. She applied for leave to seek judicial review, which was granted on 13 May 2004.

Issues

  1. Whether the High Court has jurisdiction to judicially review a report by a Commission of Inquiry chaired by a judge of the same court.
  2. Whether the report submitted by the chairperson alone, without the approval or signature of the other two commissioners, constitutes a valid report of the commission.
  3. Whether the report was made in breach of Legal Notice No. 3 of 2002 and the Commissions of Inquiry Act.
  4. Whether the applicant was denied natural justice by being condemned without being given an opportunity to be heard.
  5. Whether the chairperson acted outside the commission's terms of reference in making findings on the applicant's competence.
  6. Whether certiorari should issue to quash a report that is void ab initio.

Orders

  • Declaration that the report submitted to the Minister of Finance, Planning and Economic Development on or about 17 February 2004 by the Hon. Lady Justice Julia Sebutinde is a nullity in law and not a report of the commission.
  • Application for certiorari refused on the ground that certiorari does not lie to quash proceedings that are void and non-existent.
  • Application for injunction refused as misconceived; implementation decisions are political matters for executive discretion.
  • Applicant awarded one-third of the costs of the application.

Rules and key headnotes

Judicial Review — Jurisdiction — Review of Commission of Inquiry Chaired by High Court Judge
The High Court has jurisdiction to judicially review the report of a commission of inquiry chaired by a judge of the same court, as a commission of inquiry falls within the definition of 'any other similar body' to tribunals under the law, and there is no other avenue of appeal from a commission's findings.
Commission of Inquiry — Quorum — Requirement for Valid Report
Where a Legal Notice establishing a commission of inquiry provides that the commission shall be deemed duly constituted if any two members are present including the chairperson, a report submitted by the chairperson alone without the participation or approval of the other commissioners is a nullity and not a valid report of the commission.
Natural Justice — Audi Alteram Partem — Right to Be Heard
The principle of natural justice enshrined in audi alteram partem (hear the other side) requires that no one shall be condemned unheard. A commission of inquiry that makes adverse findings against a person without affording that person an opportunity to respond acts contrary to natural justice, rendering its findings invalid.
Commission of Inquiry — Terms of Reference — Ultra Vires Acts
A commission of inquiry derives its authority and legality from its establishing instrument and terms of reference. Any findings or recommendations made outside those terms of reference are ultra vires and invalid. A commission mandated to investigate corruption cannot make findings on an individual's professional competence unless that falls within its express terms of reference.
Certiorari — Availability Where Proceedings Void Ab Initio
Certiorari does not lie to quash proceedings that are void ab initio. Where proceedings are wholly void and non-existent in law, there is nothing for certiorari to remove into the High Court for the purpose of being quashed. A declaration that the proceedings are a nullity is the appropriate remedy.
Judicial Review — Limits — Political Decisions and Executive Discretion
Courts will not grant injunctions to prevent the executive from implementing or taking action on the basis of a report where such decisions are political in nature and within executive discretion. The question whether to implement a commission's recommendations is a political decision best left to political authorities.
Commission of Inquiry — Duty to Act Justly — Impartiality Required
The Commissions of Inquiry Act requires commissioners to make a full, faithful and impartial inquiry. A commission that condemns a person without giving that person an opportunity to correct or controvert relevant statements brought forward to their prejudice fails to act impartially and breaches statutory duty.

Legislation cited (8)

Cases cited (5)

  • R v University of Cambridge (1723) 1 Str 557
  • Russell v Duke of Norfolk (1949) 1 All ER 109
  • Local Government Board v Arlidge (1915) AC 120
  • Board of Education v Rice (1911) AC 182
  • De Verteuil v Knaggs (1918) AC 557

Full judgment

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in the matter of an application for judicial review by Annebritt Aslund (Misc Cause 441 of 2004) [2004] UGHCCD 6 (16 August 2004)
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.