Wakilii

Seforoza Nyamuchoncho and Another v Attorney General and Others (Miscellaneous Cause No. 241 of 2017)

High Court · [2018] UGHCCD 238 · 2018 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for judicial review under the Judicature Act and Judicature (Judicial Review) Rules, 2009 seeking certiorari, mandamus, and prohibition orders
Decision
Application allowed. Certiorari granted quashing the impugned decision; mandamus granted directing payment to applicants as administrators of the estates; declaration granted that administrators are entitled to payment; interest awarded at 15% per annum if payment not made within 8 months

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that estates of deceased former holders of the office of President are entitled to allowances under section 3 of the Parliament (Remuneration of Members) Act. The provision does not require the former President to be alive at the time of a parliamentary resolution. The Permanent Secretary's decision to deny payment to the estates based on the Solicitor General's opinion that only living former Presidents qualify was illegal, being founded on a wrong interpretation inserting a non-existent requirement that the beneficiary be alive. The parliamentary resolution was clear, unambiguous, and expressly named the three deceased and living members of the Presidential Commission. The decision was quashed and mandamus issued directing payment to the administrators.

Outcome

Application allowed. Certiorari granted quashing the impugned decision; mandamus granted directing payment to applicants as administrators of the estates; declaration granted that administrators are entitled to payment; interest awarded at 15% per annum if payment not made within 8 months

Facts

The Military Commission by Legal Notice No. 5 of 1980 established a Presidential Commission of three persons as titular heads of state: Justice Saulo Musoke, Justice Polycarp Nyamuchoncho, and Mr. Wacha Olwol, who served from 22 May 1980 to 15 December 1980. On 16 March 2017, Parliament passed a resolution to pay the three former holders of the office of President a total of UGX 2,400,000,000 in equal shares under section 3 of the Parliament (Remuneration of Members) Act. By that time, Justice Musoke and Justice Nyamuchoncho had died. The Ministry of Public Service sought legal guidance from the Solicitor General, who opined that only Wacha Olwol (then alive) qualified for payment and that the section was not meant for deceased Presidents or their estates. On 8 May 2017, the Permanent Secretary wrote a letter declining to pay the estates of the two deceased members. The applicants, as administrators of the estates of the two deceased justices, sought judicial review.

Issues

  1. Whether the decision of the second respondent, as portrayed in the letter dated 8th May 2017, was legal.
  2. Whether the parties are entitled to the remedies sought.

Orders

  • The decision of the Permanent Secretary of Ministry of Public Service dated 8th May 2017 is quashed.
  • An order of mandamus issues directing the 2nd respondent (Permanent Secretary Ministry of Public Service) and 3rd respondent (Permanent Secretary/Secretary to the Treasury Ministry of Finance, Planning and Economic Development) to pay the applicants the monies as per the resolution passed by Parliament.
  • Declaration that the administrators of the estate of the deceased former holders of the office of the President of the Republic of Uganda are legally entitled to receive payment of allowances as stipulated by section 3 of the Parliament (Remuneration of Members) Act as resolved by Parliament on 16 March 2017.
  • The applicants shall receive interest of 15% per annum if the amounts are not paid within 8 months from the date of this ruling.
  • Application allowed with costs against the respondents.
  • General damages declined.

Rules and key headnotes

Judicial Review — Illegality — Decision based on erroneous interpretation of statute
A decision by a public authority founded upon an erroneous interpretation of the enabling statute, whereby words or requirements not present in the statute are imported or implied, constitutes illegality and is amenable to judicial review.
Literal Rule — Plain and unambiguous language — No insertion of words
Where the words of a statute are clear, plain, and unambiguous, they must be given their ordinary grammatical meaning and the court may not insert words or qualifications not used by the legislature. It is an error to read into section 3 of the Parliament (Remuneration of Members) Act a requirement that the former holder of the office of President must be 'living' or 'alive' at the time of the parliamentary resolution when no such requirement appears in the text.
Purposive Interpretation — Mischief Rule — Purpose of legislation for former Presidents
The mischief or purpose which the Parliament (Remuneration of Members) Act sought to remedy was to ensure former Presidents and their families do not live in destitution and to avoid embarrassment to the nation. Reading the Act purposively and in conjunction with the Emoluments and Benefits of the President, Vice President and Prime Minister Act 2010, the legislature intended estates of deceased former Presidents to benefit under the law, particularly where beneficiaries are aged or facing hardship.
Entitlement of Estate to Monetary Benefits — Allowances, pensions, and compensation
Unless an intention is expressly stated to the contrary, payments, allowances, pensions, benefits, and compensation provided for by statute are payable to the estate of a deceased person to whom they were entitled. Such payments form part of the assets of the deceased and are not personal rights that lapse on death.
Effect of Attorney General's Legal Opinion — Not binding on court
While the opinion of the Attorney General or Solicitor General on matters of law should be accorded the highest respect by government and public institutions and their agents, such opinion does not bind the court. The court may find the legal opinion erroneous and quash a decision based upon it where the opinion constitutes a misinterpretation of the law.
Parliamentary Resolution — Legal effect and implementation
Where a resolution of Parliament is clear, explicit, and unambiguous in naming beneficiaries and authorizing payment under a statutory provision, a public authority charged with implementation may not refuse to implement the resolution on the basis of an interpretation that imports qualifications not present in the resolution or in the enabling statute.
Judicial Review Remedies — Discretion — Grant of certiorari and mandamus
The grant of judicial review remedies remains discretionary. Where a decision is found to be illegal, founded on erroneous interpretation of law, and contrary to a clear parliamentary resolution, the court will grant certiorari to quash the decision and mandamus to compel performance of the statutory duty.

Legislation cited (18)

Cases cited (12)

  • John Jet Tumwebaze v Makerere University Council and 2 Others (Miscellaneous Cause No. 353 of 2005)
  • DOTT Services Ltd v Attorney General (Miscellaneous Cause No. 125 of 2009)
  • Balondemu David v The Law Development Centre (Miscellaneous Cause No. 61 of 2016)
  • Bank of Uganda v Banco Arabe Espanol (Supreme Court Civil Appeal No. 1 of 2001)
  • Wicks V. DPP (1947)A.C 362
  • Hon. Theodore Ssekikubo and Others v Attorney General and 4 Others (Constitutional Appeal No. 1 of 2015)
  • Kasampa Kalifani v Uganda Revenue Authority (High Court Civil Suit No. 579 of 2007)
  • Jane Sella Wanja Amos V. Mary Igandu Njagi, Succession cause no.1122 of 2015
  • R vs Aston University Senate ex p Roffey [1969] 2 QB 558
  • R vs Secretary of State for Health ex p Furneaux [1994] 2 All ER 652
  • Bendicto Musisi v Attorney General (High Court Civil Suit No. 622 of 1989)
  • Rosemary Nalwadda v Uganda Aids Commission (High Court Civil Suit No. 67 of 2011)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Seforoza Nyamuchoncho and Another v Attorney General and Others (Miscellaneous Cause No. 241 of 2017) [2018] UGHCCD 238 (1 October 2018)
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.