Attorney General & Another v Afric Co-operative Society Limited (Civil Appeal 5 of 2012) [2015] UGSC 126 (30 October 2015)

I I \"t.. .l THE RLruBLIC OF UGAT{DA IN TTIE SI.]PREME COURT OF UGANDA AT IGA,IPAI.{ lcoRAAe KISAAKYE; JSC, ODOKI; TSEKOOKO; OKELLO; KITUMBA; -\c.llSCl CMLAI?EATNO. 05 OF 2012 BETWEEN 1. AIIORNEYGEMRAL 2.INSPECTORGENERAL OF GO APPELLANTS 10 AFRIC CO-OPERATTVE SOCIETY LTD RESPONDENT 20 [Appal ftom theludgmentof the Courtof Appal @ahigeine,DCJ I(avuma, Nshimye, ,[/A) datd 2 th June ZO I Z in Ciuil Appal No. I SZ of zol ll I o AND uDrt^4[Nf of t)R. KI SAAKYT] SC 'this appeal arises from the Judgment of the Court of Appeal rcndercd in (jivil Appeal No. I 32 of 20 I 1, where the Court of Appe al niledagainst the I., appellant, the Attorney General (hereinafter referred to as the AG) anci the 2"d appellant, the Inspector General of Government (hereinafter rcferred to as the IGG) in favour of the respondent (hereinafter referred to as Afric Coop). The brief background to this Appeal is that in April ZOt I, Afric Coop filcd an application for Judicial Review in the I-Iig,h Court against the AG and thc IGG. In the application, Afric Coop soughl for Declarations, and Orders of Certiorari to issue against the IGC and for an order of Mandamus to issue ,/ i,. 5 15 1 5 Detailed Backqround to this A ppeal. This section lays out in much more detail the background to this appeal, which I have found necessary to give because the consideration and disposal of the arguments of the parties and the grounds of appeal raised will require reference, from time to time, to matters that precede the filing of the Judicial Review Application in 2011. I should point out at the onset that in this detailed background, I have followed the same sequence as the IGG followed, in its letter of I't f)ecember, 2005 but with the necessary modifications and additions as I found necessary. lnJanaary I978, the Minister of Finance of Uganda received allegations on fraudulent banking transactions which involved Afric Coop,Uganda Commercial Bank Ltd (hereinafter referred to as LICB) and Bank of Baroda Ltd (hereinafter referred to as BoB). The alleged transactions involved credit facilities, which BoB extended to Afric Coop through bank drafts. Afric Coop presented the Drafts for paynrent to UCB, where Afric Coop maintained Bank accounts, against which UCB paid out funds before the Drafts were cleared. BoB ultimately dishonored the drafts on grounds that they had been irregularly issued. The then Minister of Finance responded to these allegations by ordering for the arrest of Afric Coop officials; the seizure of Afric Coop's fleet of 28 vehicles and the freezingof several bank accounts that belonged to Afric Coop. These orders were complied with. 15 20 25 10 I 5 15 30 Subsequently, Afric Coop officials were released on the advice of the DPP. However, UCB declined to release the seized vehicles and declined to unblock the frozen bank accounts on grounds that Afric Coop was indebted to them because of the Bank Draft transactions which BoB refused to honour. During the liberation war in 1979, 26 of the 28 attached vehicles were stolen or looted. The remaining 2 were eventually handed over to Afric Coop after the war. ln January 1 981 , Afric Coop filed a Suit in the High Court, H.C.C.S No. 84 of 1 981 against the AG and UCB, in which it sought for the following orders: (a) Payment of Uganda Shs. 36,774,9O9,/= being special danages for loss of earufug$; @) General danages for unlawfril wizurc of vehicles. (c) Retum of the reid vehicles or the payment of Uganda Shs. [S.SOO.OOO/= being their ualue. (d) Unbluking of their bank accounts. (e) General damages for unlawfuI blocking of the accounb. (0 latercst, and @) Aay other rcIief together with costs. On the 9th March 1988, the then Minister of Justice/Attorney General, Hon Mulenga, wrote to Odimbe & Company Advocates and sought their confirmation, among others, that Afric Coop would withdraw H.C.C.S No. 84 10 zo Several meetings were subsequently held between March 1982 and October 1985, between representatives of Bank of Uganda, BoB, Ministry of Finance, Ministry of Justice, and UCB with a view of reaching an out of court settlement of the matter. Unfortunately, the parties failed to reach an out of Court settlement and resolved to leave it to the Court's determination. On 4th zs lanuary 1988, Afric Coop proposed a settlement of H.C.C.S No. 84 of 198I to the Hon. Attorney General to the effect that the Government of Uganda allows them to import 26 mini-buses worth a total of US $ 832,000, through barter trade involving coffee and tea. The proposal was also copied to their Lawyers, Odimbe & Company Advocates. 4 5 On the l2th July 1 989, Odimbe & Company Advocates wrote to the Minister of Justice/AG and accepted the condition of Afric Coop withdrawing the suit against the Government and the UCB against which Government of Uganda would accept the proposal by Afric Coop to settle. On 1 7il'July 1 989 the AG, UCB and Afric Coop executed a Consent Judgment which was filed in Court on that day. The Consent Judgment provided as follows: The Reptblic of Uganda In the High Court of Uganda Holden at l(ampla Ciuil Suit No. 84 of I98I Afric-Toutr & I?avel tupratiue tuiety Limited ....... Plaintitr Venus I. Attoney General 2. UgandaC.ommeteial danksLtd..........,. ...Defendan$ OoNSENTILTpGMENT The Plaintitr sued both Defendants in the above suit for the rcovery of the ualue of 1Wenfir six vehicles seizd in 1978, from the plaintitr by or on the instuuctions of the kfendants. The Pafties have agwd to rettle the Plaintitrs claim on the following terms: 1. The fint Defendant shall make auailable to the plaintitr at ast fob Monba.s ot Dar-es-salaan @ffee and/or Tea or any other exprtable rcmmdities in sufficient quantities to enable the Plaintitrb rcalize therc ftom US 8832,OOO (Unitd States dollarc eighthun&d thitty two thousnd) to cover the cost of acquiring 26 Mitsubishi 26-xater Minibuses. 15 20 25 30 5 of 1 981 against the Attorney General and UCB if the Government accepted their proposal. This proposal was further re-echoed in the AG's letter to fellow Ministers dated lOthJuly 10 I989 which was also copied to Afric Coop. 10 a 5 2. Ihe Plaintitr shall pay to the rcleuant otgans the ualue of the said commdities in Uganda Shillittgs. 3. The Plaintitr shall fuar the cost of all the impft and expfi licences and all duties and tatres payable on the vehicles and the commd.ities. 4. The firct Defendant hercby undertakes to issue the nocessary imprt and etrpfi licences. 5. In consideration of this settlement the Plaintitrhercbywithdraws the instant suit against bth Defendants and the Plaintiff undeftakes not to institute or prosecute and fitrther pwdings in this matter except for interc.st 6. ruh pafty shall fuar its own costs. 7. Ihis agtwment shall be filed in Cowt Dated this I Vh day ofJuly 1989. COUNSEL FOR ME PLAINruT ATTORNEY GENERAL COWSEL FOR ME FIRST DEFENDANT LEGAI SECRtrARY COUNSEL FOR SECOND DEFENDANT T]DGE/REGISTRAR Drawnkv Odhnfu&b. Advocates, PIotNo. 25 Republic Sfrwt, EO. tux 935, Ifuale 15 20 25 30 35 6 10 Between 1991 and 1994, the Government of Uganda, made several payments to Afric Coop, totaling to US $ $ilz,OOO in fulfillment of its obligations under the Consent Judgment. On the 29th September 1994 Afric Coop wrote to the Permanent Secretary/Secretary to the Treasury (hereinafter referred to as 5 PS/ST) extending their thanks for the settlement of the principal amount of compensation of US $ 832,000.00 in H.C.C.S No. 84 of 1981 . In the same letter, Afric Coop also claimed Uganda Shs. I.7 Billion being accrued interest on the principal payment, in accordance with the terms of the Consent JudS;rnent of I 7'h July 1 989. The Ministry of Einance computed the interest due on the principal payment of US$ 832,OOO/- asbeingUganda Shs. 1,545,726,447.32/- andonthe lzth Janvary 1995, wrote to Commissioner/Treasury Officer of Accounts authorizing the issuance of a Promissory Note on behalf of Government of Uganda for that amount to Afric Coop. The letter was copied to the IGG's office. On receipt of the copy of the letter, the IGG initiated investigations into the circumstances surrounding the payment of interest to Afric Coop. During the investigations, Odimbe & Company Advocates on lstMarch tg95 wrote to the IGG to justify the claim of interest and availed a copy of the Consent Judgment dAted 17th Jvly I989. They also referred to parugraph 5 of the ConsentJudgment and quoted the paragraph as:- o...the plaintiff undefiakes not to institute or ptos*ate any fiuther @W in this matter excefi for intercst' In May 1996, the IGG issued a Report and found that Afric Coop had filed a case, H.C.C.S No. 84 of I 98 l, against the AG and UCB and that an out of Court settlement had consequently been reached between the AG and Afric Coop. The IGG's Report concluded that the claim made by Afric Coop on interest was proper and recommended that Ministry of Finance should pay the interest. On I8th September 1996, the Ministry of Finance arfihorized the issuance of another Promissory Note for Ll ganda Shs. I,43 5,5 7 8,,828 / = on behalf of 10 15 20 25 7 / 5 On 3.d October 1996, Afric Coop through their lawyers, Odimbe & Company Advocates wrote to the AG and claimed further interest on the basis that the date of computing the interest should have been from January 1978 when the vehicles were seized. Odimbe & Company again quoted parugraph 5 verbatim as follows: KIn ansideration of this reftlement the plaintiff hercby withdraws the instant suit against the Defendants and undertakes not to institute or prcsecute any fufiher pocdings in this matter except for intercst'. On I4'h July 1 997, the Ministry of Finance authorized the issuance of yet another Promissory Note for Uganda Shs. 2,1O8, 266,155/= on behalf of Government of Uganda to Afric Coop, which was done. On Zl,tJanuary 1998, Afric Coop wrote and thanked the PS/ST to extend thanks for the last payment of Uganda Shs. 2,I08,266,155/=,which "exfinguished all their claims against Government of Uganda on vehicles." In the same letter, Afric Coop then claimed US $ 31, Ogl,410.56/ = being interest due on the blocked bank accounts. On 2nd and 3oth March 1998, Afric Coop again wrote to PS,/ST reiterating their claim for US$ 3l ,031 ,410.56 on the blocked bank accounts and attached the Report of the IGG to justify the claim. The attached Report indicated, an1on8 others, that the IGG had made a finding that in the Consent Judgment of 17r'July 1989, Afric Coop had undertaken not to institute or prosecute any further proceedings in the matter except for interest on "blocked bank accounts. balances and vehicles." The Report also indicated that the IGG had observed that in consideration of the settlement, Afric Coop had agreed to withdraw the suit against the AG and UCB and not to institute 10 15 20 / Government of Uganda to Afric Coop, following the re-computation on variations of the rate of interest and the period on which the first paynent of Uganda Shs. 1,545,726,477.32/- was computed. 8 I 5 or prosecute any further proceedinSs in that matter except for interest on t'blocked bank accounts balances and vehicles." The Ministry of Finance calculated for the principal and interest on several bank account balances, on the basis of the documents which Afric Coop had submitted. The Ministry also sought advice from the AG on some legal aspects of the claim. The AG rendered sorne advice to the Ministry on 23d April, 284'May, and Sth October 1999. The AG wrote to Ministry of finance to advise that Government of Uganda was liable to compensate Afric Coop for illegally blocking their bank accounts, including advice that it was in the interest of Government of Uganda to negotiate a settlement of the claim based on computations of P.K Sengendo & Company, a firm of certified accountants. The computations involved Government of Uganda paying between tJganda Shs. 30,4 1 8,8 49,4 56 / = and U ganda Shs. 3 7,528,6 08,17 7 / -. The AG and the Ministry of Finance however failed to agree on the amount payable to Afric Coop. While the Ministry of Finance had computed the amount due as beingUganda Shs. 30,773,998.74/=, the AG indicated that amounts payable should be based on computations which had been made by of P.K Sengendo & Company, a firm of Auditors. On 2 1s October 1 999, the Ministry of Finance wrote to the AG and informed the AG to advise Afric Coop to accept the payment of Uganda Shs. 30,77ia,998.74/= as the full and final settlement, failing which Afric Coop could pursue the matter in Court. 10 15 20 9 In February 2000, Afric Coop through their lawyers Kajara,IGbiito & 2s Company Advocates, filed HCCS 167 of 2OOO against the Attorney General seeking for the payment of Uganda Shs. 68,347,550,541/=,being compensation and interest on the blocke dbank accounts. 5 (a) A ConsentJudgment was fiIed on I Vn JuIy 1989 as a settlement of HCCS 84/81 whercby GoU agd to auail conndities to Afric @- oprative fuiety to rcalize USD 832,OOO to cover the cost of acquir@ 26 vehicles. 10 10 According to Afric Coop's pleadings, the basis of HCCS 167 of 20OO was that:- @) In consideration of the Consentludgment, Afric b-oprative bciety withdrcw HCCS 84/81 against GoU and UCB and undertok not to institute or prcwute any further pwedings in the matter except for intercst on blukd accounts, balance and vehiclesrand (c) GoU partly compild with the reftIement lo the exbnt of the vehicles and when Afric Cap subnitd thebclaim on the blockd futtk 1s accoua$ to Ministry of Finaace for payrnent, Ministry of Finance dulind to hottour the claim. Afric fup thercafter fiId the suit against GoU claiming Uganda Shs. 68,34 7,55q54 t /= bitg compnsation and intercst on blrckd accounts. On 24th May 2OO7,the High Court disnrissed II.C.C.S 167 of 2OO0 on zo grounds that thc claim was time-barred. In dismissing the claim, the trial judge observed as follows in refcrurce to Afric Coop: #It did not nd to take the accomplishd plaintitr I I yurs to spin and weave such a complex, if notgiddygooeyclaim." In June 2001, Afric Coop throuSgh Sebalu & Lule Advocates filed an appeal, zs Civil Appeal 66 of 2O0I, against the ruling made in HCCS 167 of 2000. In July 2002, the Court ofAppeal ordered Afric Coop to deposit in Court Llganda Shs. 670,177,005/ = being taxed costs assessed in respect of HCCS No. 167 of 2OOO and also Llganda Shs. 220,000,000/= being security for costs for Civil Appeal No. 66 of 2OOT,before the appeal could be heard. Afric 30 Coop failed to comply with this Ruling and to prosecute this Appeal. Afric Coop then decided to resume its claims directly against the Ministry of Finance. Hence, on 8fl, October 2002, Sebalu & Lule Advocates wrote to the Ministry of Finance pursuing Afric Coop's claim. They relied on aletter dated 5 22"4 February 1999 from PS,/ST to Afric Coop in which Government of Uganda allegedly admitted liability and indicated that in light of the decision in HCCS Nol8 of 2OOO and HCCS l9 of 2OOO,where Government had entered into consent with other claimants, Government of Uganda did not have a defence against Afric Coop's claims. Sebalu & Lule Advocates indicated that their clients were now willing to accept Uganda Shs. 23,825,00 4,39 5/ =, instead of U ganda Shs. 68,34 7,5 50, 5 4 I / = they had claimed in H.C.C.S No. 167 of 2000. Sebalu & Lule Advocates were fully aware that the matter for which they were seeking payment was the subject of an appeal in which the AG was representing the Government of Uganda. In August 2003, Nrrc Coop also wrote a Petition to His Excellency the President to seek his assistance in recovering outstanding funds on the blocked bank accounts together with accrued interest. On 9'h August 2003, Afric Coop received an acknowledgment to their Petition from a Mr. Mohammed Omar, who wrote on behalf of the Principal Private Secretary to His Excellency the President, informing them that their Petition would be acted on. On lSil November 2003, a forged letter, allegedly originating from the IGG in support the Petition was sent to the President of Uganda purportedly to, to clear Afric Coop from any wronS doing and to recommend that the President assists Afric Coop secure funding, pending conclusions of their claims to Ministry of finance. On 4th October 2OO5,, the Minister of State forJustice and Constitutional Affairs wrote to the Minister of Finance advising the Minister to deal with the delayed payment of interest to Afric Coop to avoid unnecessary financial loss to the Government, This letter was referred to the IGG by the PS/ST for response. 10 15 20 25 11 5 On the ls December 2005, the IGG wrote to the Minister of State forJustice and Constitutional Affairs in reference to the Minister's letter of 4th October 2005 pointing out, anlonS others, that H.C.C.S No 84 of 1 981 was the subject of exhaustive investigations by the IGG, alongside other cases also involving claims filed against the Governnrent of Uganda, some of which had resulted in payment of colossal sums of money in Court awards. The IGG further observed that the investigations were concluded and the IGG issued a Report in July 2004 that was forwarded to His Excellency the President among others, on 9th July 2004. T\e IGG's letter was also copied to His Excellency the President of Uganda; the Minister of Finance and the PS/ST. During the same month of August 2003, the IGG also received information from State House about civil cases, in which the Government of Uganda had lost and had to pay millions of dollars in Court awards as a result. These cases had been brought to the attention of the President who directed that they be referred to the IGG for investigation. The one filed by the Afric Coop against the government, H.C.C.S No. 167 of 2OO0 was one such case. The facts leading to HCCS No. 1 67 of 2OOO have already Lreen set out. The IGG then undertook the investigations with the following objectives: (1) Determine the mannerin which AttomeyGeneral rcprcsentd Government of Uganda in the cases and establish whether or not such rcprcsontation was adequate. (ii) Exanine the manner in which Cavemment of Uganda either pid out the bwt awards or claims and establish whether or not the claimants tweived the awards orclaims; (iii) tutermine whetherornot therc was anyfotm of wtongdoingor ampomix on the part of Govemment of Uganda officials and other parties or petsons who werc involved in handlirtg the ca.res or claims, and (iu) Rwmmend appopriab course(s) of action bad on anyfinding and also if Govemment of Uganda was notpoperlyrcprcxnted, @urt 10 15 20 30 72 25 The investigations were confined, but not limited, to the period around the time the cases were initially filed in Court or the claims presented, when the Courts delivered judgment and the time the Court awards or claims were settled. Iollowing the completion of its investigations, the IGG recommended with regard to Afric Coop's claim that: O Ihe foryeries be rcfend to the Criminal Investigation Depathnent for fufiher investigation with a uiew to poseutittg officiab of Afric bp, Mimfu & bmpany and possibly otherc, for the otfenres of forgery, utterhg fal.x deaments, and attempting to obtain money by talre pretences, (ii) kueral named hrblic Officerc at Attomey General Chanberc and Ministy of Finance who werc grussly negligent in advis@ Govemment of Ug*nda to xttle the claim by Abic Cap and who, in addition, failed to display integrity, ddication and pofessionalism in discharying their duties, be diwiplined, (iii) Attomey C,eneral makes an application to Coutt to have the appa.l tild by Afric C@p (CA 66/200I), stuck out and if Court of Appal eventually dituts that the case (HCCS 167/2OOI) should fu tried, AG should amend theirpleadings on the basis of thegenuine &nsent tudgment and Reprt of this Office, and (iu) Ministry of Finance should not pay the claim by Afric tup in rcsryt of the principal and intercst on the blockd bank acounts sine the claim was notgenaine and was supprted byforgd duuments. On 12'hJune 2O7O,the President of Uganda wrote to the then AG notifying him of his receipt of Afric Coop's Petition for payment of their money, which had been frozen in 1978 and had allegedly accumulated to Uganda Shs. 10 15 20 25 30 13 awatds orclaims werc notpoprlypaidoutand if therc was anyform of wtottg doittg on the part of Government of Uganda otricials and otherparties or ptwns involvd. Afric Coop also prayed for costs of the suit. The AG filed an Affidavit in Reply in which it denied Afric Coop's claim and contended that the Suit against it was already settled by a Consent Judgment it had entered into in High Court Civil Suit No.84 of 198I. The IGG did not file any reply to the Application. Mwangusya J. (as he then was) dismissed the application with costs holding that none of the prerogative remedies sought were available in the circumstances. Dissatisfied with the holding of the H[h Court, Afric Coop appealed to the Court of Appeal on the following five grounds of appeal: I. Ihe leamd Itial judge ettd in law and fact when he faild to prcperly eualuate the euidence on rccotd and thus came b a wrottg conclusion occasionhg a mircadage ofJustice to the appellant Z. Ihe leamd I?iaI judge ened in law and in fact whw he failed to prcprly evaluate the euidene on rccod byfailirtg to find that, in the circunstances of this case, the Ia rcspndent had no authorigr to investigate and make a rcport against the appellant that has cwtailed the ?d rcspndent ttom for the payment of the money owd tu the Appllant by the Government of Uganda. 3. Ihe leamed I?iaI judge ened in law and fact when he faild to poWrly evaluate the euidene on twotd and found the ?d rcspndent could in the circunstances b prcventd by In rcspondenPs rcport ftom carryirg out his consti tutional man date. 4. The learnd I?ial judge end in law and in fact when he taild b poprly eualuate the euidene on twtd by failing to strike out the In rcspndenfs rcprt on grcuad that it was cadd out in a manner that otrended the rules of natural justie. 5. The leand ftial judge enad in law and in fact when he faild to poprly eyaluate the euidene on rwotd by failittg to grant the applicant the rcndiespraydfor. Afric Coop prayed that the Court of Appeal subjects the evidence on record to a thorough scrutiny, set aside the Ruling and orders of the High Court and make 10 25 30 5 15 20 15 5 apprcpiate orders, remedies and directives. The Court of Appeal ruled in favour of Afric Coop and awarded it Uganda Shillings 1,28,825,004,395/ = plus interest at 25o/o, The AG and IGG were both dissatisfied with the decision of the Court of Appeal and appealed to this Court. It should also be noted that prior to the hearing of this appeal, both the Attorney General and the IGG, through AttorneyGeneral &Anotherv.,4fric b-oprative tuie$Linitd, Mirc. Application No, 6 of ?OlZ,snccessfully applied to this Court to file further evidence in the form of the contested Report of the IGG to elucidate the evidence already on record. At the hearing of this appeal, the Attorney General was represented by Ms Patricia Muteesi, PSA and Mr. Elison Karuhanga while Mr. Sydney Asubo represented the IGG. Mr. David Sempala, Mr. Mulema Mukasa and Ms Angela Kobel represented the respondent. Both parties filed initial written submissions. Following the filing of the contested IGG's Report, both the appellants and the respondent filed additional written submissions directly responding to the said Report. kxal frameworkRoverning the IGG 10 15 20 )E 16 This appeal requires an in depth analysis and consideration of the limitations imposed by either the Constitution and/ or the enabling Act on the IGG. For the sake of clarity and to avoid repetition of these provisions, I have found it necessary, before I delve into the merits of this appeal, to lay out at the onset, the key provisions in respect to the IGG that I believe are relevant to the discussion of the parties' submissions and consideration of some of the grounds of appeal. These provisions will only be cross referenced during my consideration of the matters in contention under the respective grounds of appeal. 5 Article 225 of the Constitution of Uganda provides that the functions of the Inspectorate of Government shall be prescribed by Parliament. The functions which are relevant to this appeal include the following- o(a) to pomote and fostq stic't adhetence to the rule of law and principles of natural justice in adtninistration; (b) to eliminate and foster the elimination of cotntption, abux of aathority and ofpublic office; (c) to prcmote fair, efficient and gd govemance in public offices; (d) subjut to the pouisions of this @nstitution, to supwi* the enforcement of the Leadenhip Me of &nducg and (e) to investigate any act, omission, aduice, deision or rccommendation by a public officer or any other authority b which this article aryIifi, taken, madergiven or done in exercise of adninisfuative fiinctions; and On the other hand, Article 225 (2) of the Constitution mandates the Inspectorate of Government with power nto investigate any matter rcfend to in claux (I)(a) ot this article, on ib own initiative or upn complaint made to it by any member of the pnblic, whether or not that ptson has prsonally suffetd any injustice by tea&n of that matter.D Article 226 extends the jurisdiction of the Inspectorate of Governnrent to @ver offirerc or leaderc whetheremployed in the public sevice ornot, and aln such institutiow, otganizttions ot enterprires as Parliarnent may pexribe by law.' Article 230 of the Constitution also grants the Inspectorate of Government special powers to do the following: o(l) The Inspoctorate of Govemment shall haw power to inuestigate, cause inuestigation, antst, cause arae.st, ptw*ute or uure ptowution in rcsryt of cases involufug comtption, abux of authority or of public office. (0 lhe laspector General of Govemment may, dwittg the coutse of his or her duties or as a consquence of his or her findings, make such otden and giue such dirwtions as ate n@essaql and appopriate in the circwnstances. 10 15 )n t7 5 o(I) htnuant to the prcuisions of the @nstitution and to this Act, the fiiactions of Insrytoratearc- (a) ..... ; (h) b investigate the conduct of any public officer which may be connwtd with or conducive to- (i) the abuse of his or her office or authorily; (ii) the neglect of his or her official duties; (iii) economic malpractices by the officerl 10 20 25 30 18 (3) Subjet to the prcuisions of any IaW the Inspectorate of Government shall have pwer to enter and inspt the prcmires or poptty of any depatfrnent of C,ovemment, ptwn orof anyauthority, to call for, exanine and wherc nwssaty, rctain any document or item in ann*tion with the ca.re being investigatd, found on the premises; and may, in those pemixs, carryout any investigation for the pwpx of its fiuctions. (4) The Insptorate of C,overnment shall, when enforcbg the Ieaderchip Me of Conduct, have aII the pwerc confened on it by this Chapter in addifion b anyother pwen anfend bylaw. (5) Subjoct to this @nstitution, Parliatnent shall enact any law neoessary for enablittg the Inspwtorate of Cavernment to dirchatge iB fitnctions effwtivelyand efficientlyand, in Wticular, to ensute that the dirchatge of thox fiinctions is not frustratd by any ptson or authorigr.' Pursuant to the powers that were conferred on it by thc Constitution, Parliantent enacted the lrlspectorate of Governnrent Act, 2OO2,l;rws of Uganda. Section tl of this Act provides for the functions of the IGG. The powers spelt out in section 8(l)(a) - (e) are sinrilar, in all material aspects to the powers provided to the IGG urrder Article 225. I wlll therefore not reproduce them here. The functions laid out under section 8(1), in as far as they are relevant to this appeal, are follows: (e) ... to investigate afly act, omission, aduice, d*ision or teconnendation by a public officer or any other authority to which this wtion applies, taken, made,given ordone in exerciff of administative fiinctionsl 15 (i) to take necessary masutes for the detetion and prcvention of corntption in public offices and in pafiicular- 35 5 15 25 Section 12 of the Inspectorate of Government Act provides for the following general powers of the IGG "for the purposes of performing its functions under this Act". o(a) to authorise in writhg any otricer under rts chatge to conduct an inqufuyor investigation into an allegation of amtption, abu* of office 35 19 (i) to exanine the practices aad prwedurcs of thow offices in otder to facilitate the dixoveryof cotntptpractices and to wttrc thercuisiott of methds of workorprwdurc which, in the opinion of the Insrytorab mayfu conducive to comtptgactices; (ii) to aduire thox of,frces on waJ$ and means of peventhg corntfi practica and on methds of work or ptwdurc conducive to the effeotive prfotmaace of their duties and which, in the opinion of the Insptor-General, would tduce the incidence of comtfiion ; (iii) .....; (iu) to enlist and foster public complainb of allegd or suspeotd corntptpractices and injustices and make twrrunendations for appopriate action on them; and ... (2) The Insp'brate may investigate afly matter rcfend to in subwtion (I) of this wtion, on its own initiative or upn complaint made to it by any indiuidual or Myof prsons whether cotprate ornot and whetheror not that indiuidual or My has sutrerd any injustice by rea.&fl of that mafter. (3) Ihe Inspctorate may, in the pfformance of its duties under this wtion, investigate into the actions of any prson that may have fun done while that prson was xwing in a public office, notwithstanding that at the time of the investigation, that ptson has cusd to retye in that office. (4) The Insrytorate may in the pdotmance of ib fiinctions under this Act delegzte any of ib functions to other authorities or prsons at district or Iower levels including any lual government Section 9 of thc Inspcctorate of Governrrrent Act provides for the jurisdiction of the IGG over officers and leaders serving in public offices listcd in the section. These include, amorl8 others, a government departnrent; urrdertakinli or service; a Court of law; and an association whether corporate or not, established by or under any law. 10 20 30 and neglect of duty, and any other aspect that the Insrytorate is empwetd to investigate into; (D O rcquire a public officer or any other person to answer questions conceruing his or her duties or thore of another Ftson; (c) to rcquhe any ptwn in charye of a public office tu pdue or fiunish within a spooifred time, any dxunent or certifid frue copy of such duunent which is in his or herpsression orunderhis or her chargel and Section 14 of the Inspectorate of Government Act also grants the IGG special powers to undertake the following activities: ". . . (5) Ihe Insryctorate shall have pwer to investigate, caure investigafion, anest, caure antst, ptos@uteorcaure ptowation in rcspctof ca.res involuing comtption, abuse of authority or of public office. (6) The Inspctor-General may, during the course of his or her duties or as a consquence of his or her findings, make such orderc and give such ditwtions as arc neessary and apprcpriate in the circwnstances.' (I) The Iasrytorate shall not have pwer b question or rcuiew any of the following mattefi- (a) the decision of anycourtof laworof anyjudicial officerin the exercire of his or her judicial finctions; @ the dsision otany tuibunal establishd by law in the exercix of its finctions; (c) any ciuil mafter which is beforc court at the commenement of the In srytorate's in ves tigati on s I (d) any matter rclating to the exercix of the perugative of merc1t; or 10 15 2Q 30 35 ZO (d) to do any other thhg nocessary for the ptformance of the fiincfions of the Insptorate under this Act." On the other hand, section 19 of the Inspectorate of Government Act provides for limitations on the powers of the IGG. It provides as follows: 5 25 (e) anymalter the rcuiewor investigation of which has ben ceftifid bythe Ptesidentas likelyb- (i) fu prjudicial to the wwity, defence or intemational rcIations of Uguda;or (ii) involve the dirclasurc of pocedhgs and deliberations of the Cabinetora@mmitteof CabinetrcIating tomattes of a w-rctot confidential naturc and would be injurious to the public intcrcst (2) Wherc the lasp'brate is stisfid that- (a) the complainant has at any material time had the right or oppiunity of obtaining rcIief or rcdrcss hy means of- (i) an awlication or rcprcrentation to any execative authoritl5 or (ii) an arylication, appal, refetence or teuiew to or, befote a ftibunal establishd bylaw; or (iii) pvceditW in a court of lawl the Insptorate maydecIine to conduct an investigation and accotdingly infotm the complainant in rwiting, but the Inspectorate shall not be bound to give anyrcasons fot the deision.' Consideration of the Appeal I will now furn to consider the submissions of the parties under the respective grounds of appeal. There were six grounds of appeal set out in the Memorandum of Appeal. I will deal with ground 2 of appeal first. Thereafter, I will deal with ground 1 separately, and then grounds 3 and 4 separately. Lastly, I will deal with grounds 6 and 5 together in that order. Ground 2 of. Apoeal This 5;round was frarrred as follows: 'Ihe leandJustices of the Couttof Appal ed in lawand fact in holdittg that the rcprt of the IGG was ?oid and of no conquenre.D 10 15 25 30 2t 5 20 5 Submitting on this ground, the AG and the IGG contended that the learnedJustices of Appeal quashed the Report of the IGG on the basis that the IGG did not give Afric Coop a hearing during the course of the IGG's investigations into its claims against the Government. The AG and ICG further contended that the investigations focused on, among others, the tendering of a forged consent judgment to support claims against the Government on blocked bank accounts, a forged letter allegedly authored by the then Inspector General of Government, Mr. Jotham Tumwesigye (as he then was), as well as alterations in the IGG's Report. The AG and IGG further contended that all the interviews were in the course of the IGG's investigations of Afric Coop's fraudulent claims. Without prejudice to the above, the AG and IGG further contended that even if Afric Coop had not been heard, allegations of fraud and forSery were serious allegations and that no Court of l.aw should allow its process to be used to enable a party benefit frolrr a clear fraud. Relying on this Court's decision in Fam Intemational Ltd &Anor u. Muharund Hamid El-Fatih, Ciuil Appeal No. 16 of l993,the AG and IGG conterlded that it was a cardinal principle of law and equity that Court will not allow its process to be used for the benefit of a fraudster. 10 20 ,q. Afric Coop's subnrissions 22 The AG and IGG disputed Afric Coop's contentions that they were never heard and referred this Court to parye 283 of the IGG's Report of luly 2004 which showed that Afric Coop's former lawyer, Mr. Richard Odimbe of Odimbe & Co Advocates was interviewed on 16rh April,2OO4 and recorded a statement on oath. The AG and the IGG also subnrifted Afric Coop's then Chairman Mr. Arthur Bosco Cidagui was also interviewed on tn. 16ttr June,2OO4. Counsel referred Court to pages 288 of the IGG's Report which confirmed this fact. 15 5 In reply, counsel for Afric Coop supported the Court of Appeal's findings that the IGG's Report was void and of no consequence since they had not been given a fair hearing during the IGG's investigations. Counsel submitted that the alleged IGG's Report does not contain proceedings that confirm that Afric Coop's representatives were summoned, given a summary of the allegations against the Society, any documents supporting the allegations and the finding (decision) of the IGG. Counsel further submitted that the alleged letter attributed to Mr. Gidagui of Afric Coop and that the IGG's claims that he hadbeen physically present and interviewed were both false and not supported by any document. Counsel contended that Afric Coop, a company, could neither be interviewed nor write a letter as alleged. Counsel for Afric Coop further submitted that the Report only quotes that Mr. Richard Odimbe who was Afric Coop's lawyer at the time and Mr. Arthur Bosco Gidagui were interviewe d and made statements on oath. Counsel contended that what was required to prove that they had been heard was the record of proceedings, the statements on oath madeby Mr. Richard Odimbe and Mr. Arthur Bosco Gidagui but not mere summaries or allegations in the Report. Counsel for Afric Coop also contended that the AG and IGG failed to lead any evidence to prove, on a balance of probabilities, that Afric Coop was availed with an opportunity to defend itself on the allegations of a forged Consent Judgment. Counsel further contended that the Report was never availed to Afric Coop until after the application of the AG and IGG to adduce additional documents was filed in this Court. Counsel for Afric Coop contended that the right to be heard presupposes summarizing the claims aSainst a person including documents being availed against him, affording that person an opportunity to give his side of the story, making a decision and contmunicating such a decision to him. Relying on Article 42 of the Constihrtion of Uganda, counsel submitted that the mere use of the Report to stop 10 15 20 25 23 5 Afric Coop's payment without availing it with the Report was also breach of Afric Coop's right to be heard. Relying on Article 44(c) of the Constitution, counsel for Afric Coop also submitted that the right to a farc heafing is one of the non-derogable rights. Counsel contended that it was contrary to the doctrine of fair hearing not to avail an accused person with the complaint against him or her, not to afford him or her an opportunity to be heard and not to inform him or her about the decision taken. Relying on the case of John Jet Ifunwebaze v. Makererc Univenity & 2 Othery HCCA No. 553 of Zooorcounsel submitted that once an application for an Order of Certiorari is filed and served against a party (public office holder), that person is duty bound to bring the irnpugned Report or proceedings to Court so that Court can analyze them 'ris-a-vis the complaint. Counsel further submitted that the record of proceedings portray that the IGG was duly served with the application forJudicial Review andthat it chose not to file any pleadings or to even pass them on to the Attorney General who ended up being the IGG's Advocate. Counsel urged this Court to disregard the IGG's impugned Report on ground that the Report was not signed by its author who claimed to have been an expert. According to counsel this defect had not been cured by the Report's cover page. Counsel also called upon this Court to accept the copy of the Consent Judgment which indicated that interest covered blocked bank accounts, balances and vehicles, 10 15 20 Counsel further submitted that the AG and IGG were questioning the blanket declaration of the IGG's Report to be "void and of no legal consequence" by the Court of Appeal. Counsel contended that in law, the Report that was declared to be void and of no legal consequence was only that part of the Report that concerned the parties to Civil Appeal No. 132 of 2Oll that was before the Court of Appeal. 25 5 despite the absence of the original copy of the same. Counsel cited section 64 of the Evidence Act to support admission of a photocopy of the original document as secondary evidence. In conclusion, counsel for Afric Coop submitted that the learned Justices of Appeal were correct to hold that the IGG's Report was void and of no consequence and thal this was done after evaluation of evidence before them. This evidence, counsel contended, led to the Court of Appeal's finding that the IGG did not, in the circumstances, have authority to ir,vestigate Afric Coop's claims and that the process of making of the impugned IGG's Report offended the rules of natural justice. 15 20 25 Before considering this ground of appeal,I have found it necessary to respond to submissions that were made by Afric Coop, contesting the authenticity of the IGG's Report because it was not signed by the IGG andthe author of the Report was not named. The AG and IGG did not specifically respond to these submissions. I will address Afric Coop's submissions in brief. A review of the Constitutional and Statutory provisions shows that no obligation is imposed on the IGG to siglr her Reports or to indicate the name of the officer who actually authorcd the Report. ln Attomey C,eneral & Insp'br C,eneral of C,overrunent v. Afric @-oprative fuiety, Miff. Application No. O6 of ZolZ,,the AG and Afric Coop applied to this Court to admit the Report and the Court granted the application. Afric Coop had an opportunity to object to the admission of the Report on 5;rounds that it was now raising at the time of hearing this Application but did not do so. Furthermore, to back up the authenticity of their Report, Mr. Sydney Asubo, the Director Legal Services in the Inspectorate of Government swore an Affidavit on behalf of the IGG and tendered in the said Report. Afric Coop is not on record as having challenged the contents of the Affidavit. / 25 10 Consideration of Ground 2 5 It is worth noting the learned Justices of Appeal neither reproduced nor made any reference to these grounds in theirjudgment. The learnedJustices ofAppeal however noted that the following four issues had been framed for its determination. 1. Whether the IGG has authority to investigate in the instant mafter. 2. Whether the IGG followd the ruilu of natural justico while canyittg out the investigations that ld to hq Repfi of Ii Dffimfu, 2005. S. Whether the Attoney General can in the circannstanoes be sto@ by the IGG'I Reprt/Rwnnendation ftom carryingout his mandab of aduisittg the Canenment in legal matten. 4, What rcmdies arc auailable tu the prties. Again it is not clear from the Record whether these issues were framed by the parties or the Court. What is however interesting to note is that the focus of issue no. 2 was the investigations that led to a Report dated l.t December 2005, that the IGG was supposed to have made. A close look at the Ruling of the Court of Appeal as well as the reference in the trialJudge's Ruling indicates that both Courts focused on the IGG's letter to the Attorney General dated lil December 2005. This was the first error of fact that the Court of Appeal made. An examination of the docuntent dated l,t f)eccmbcr 2005 titled 'HCCS 84181 - AITIC CO-OPERATTYE SOCIETY LIMITED -VS - ATTORNEY GTNERAL' clearly shows that it was a letter addressed to the Hon. Minister of State forJustice and Constitutional Affairs, and that it was not a Report by the IGG. According to the opening paragraph of that letter, the IGG was writing in response to a letter that been authored by the Minister of State for Justice and Constitutional Affairs dated 4th October 2005, which hadbeen referred to the IGG's office by the PS/ST for response. The IGG's letter, which appears at pages 62 - 70 of the Record of Appeal and was therefore available to the learned Justices of Appeal for review, gave a detailed background, account and reminder of what had previously transpired with regarding to the claims that Afric Coop was pursuing against the Government of 10 15 20 25 27 5 Uganda and what the Government's response had been up to the time of writing the letter. The IGG in paragraph 3 of the said letter indicated that the IGG's office had issued its Report on Afric Coop's claims way back on 9thJuly ZOO4,to amongothers, the Minister of Justice and Constitutional Affairs and that they had not received any correspondence from the Ministry of Justice disagreeing with the Report or raising any issues with the Report. The letter was copied to the President of Uganda, the Minister of Finance, Planning and Economic Development and the Permanent Secretary/Secretary to the Treasury. Given this background, it was erroneous on the part of the learned Justices of Appeal to accept issue No. 2 as fuamed by the parties as referring to a Report of the IGG dated l$ f)ecember 2005, whereas no such Report on the same subject matter had been issued by the IGG on that date. The Court proceeded to quash the I.t December 2005 letter on the wrong premises that it was a Report. The framing of this issue resulted in the Court misdirecting itself and issuing a ruling declaring the IGG's Report void for failure to comply with Article 42 of the Constitution which was neither supported by the evidence nor the law. I have found no legal basis to support a finding that one Government aSency such as IGG, writing to another Government agency on any given matter under consideration, is required to first give a hearing to the persons (natural or legal) concerned, or affected, on each and every occasion they are exchanging internal government documents. In the particular appeal under consideration, the IGG's letter in question was addressed to the Minister of Justice and Constitutional Affairs and was copied to the Presidency and other concerned Ministers and Government officials. The letter was referring to earlier investigations and a resultant Report issued by the IGG on 9th July 2004, which clearly indicated that Mr, Gidagui, Chairman of Afric Coop and Mr. Odimbe, the then lawyer of Afric Coop, had been given ahearingby the IGG before the Report was issued. 10 15 20 25 28 5 Secondly, ground 2 of appeal emanates from the following rulings of the Court of Appeal on issue no. 2 and issue no. 4. In ruling on Issue no. Zrthe Court of Appeal held, with respect to the IGG's Report, as follows: olt is subnitted for the appellant that the IGG carid out investigations culninating in final otderc that the appellant should not be paid and that officials of the Attoney General's Chamfur and the Minisfiy of Finance be disciplined without, for a moment, atrodirqg the appellant an oppfiunity to be head. The leamed trial judge ruld: But the rcport by the I't rcspndent was not final. It was still subjet of rcrutiny by the ?d rcspndent who all along had fun negotiathg with the applicant afuut the unpaid claim. The fact that the applican$ wete not giuen an opprtunity to gtve an input when the 7d rcspndent was cany@ out an inuestigafion is cwable because they can still pesent that side of the story to the 7d rcspndent who can still rcuiew the deoision as to payment of the outstanding claim.' Article 42 pescrifus the right to just and fair freatrnent in adminisfrative dwisions: 'Anypenon apparing bforc anyadninistrative official orMyhas a right to be trcated justly and fairly and shall have a right to apply to a court of Iaw in rcspect of any adninistrative deision taken against him or her.' Ihis acbtowledgement that the appllant was never heatd, has not ben anfrovefied by the rcspndents which would automatically nullify the Reprt be rt inbrim or final. The suggestion by the leamd tuial,[udge that the appllant could applyto the AttorneyGeneral fora rcuiewof the decision is to say the least untenable as a decision which is null aad void is non-ertsbnt. Thus therc would be nothing to rcuiew by the Attorney General. fu Matovu & 2 Othen v. kvuiri and Another (1979) HCB I 72, wherc it is sftld that a docision arivd at in brcach of the Audi Alteram pafiem'rule is void abnlutely and of no consquence. The Reprt of the IGG is void and of no rcnryuenre.' On the othcr hand, in ruling on Issue no. 4 the Court of Appeal held with respect lo the IGG's Report as follows: aThe Rcprt he @ucod in non-compliance with Article 42 of the bnstitution was nuII and void and thercforc of no conquence.' 10 15 25 30 29 20 5 The Court of Appeal's Ruling was based on among other things, the pleadings and lengthy submissions of counsel for Afric Coop to the effect that the IGG issued an adverse Report against the Society without giving them ahearing. In considering Afric Coop's claims that they had not been heard by the IGG, the learnedJustices of Appeal only took into account the submissions of Afric Coop and observations of the learned trial judge,which appear in the quote above. Thereafter, the learnedJustices proceeded to consider the provisions ofArticle 42 andto attribute the comments, views and conclusions of the learned trial Judge to the AG and the IGG. The learnedJustices of Appeal concluded as follows: This aclorowledgement that the appllant was never heand, has not fun contrcvefid by the rcspndents which would automaticallynullify the Reprt be it interim orfinal. The sugestion bythe learnd tuialJudge that the appllant could apply to the Altotney General for a rcuiew of the docision is to say the least untenable as a duision which is nuII and void is non-existent.' In making the conclusion they reached that there had been an acknowledgment to the effect that Afric Coop had never been heard, the learned Justices of Appeal made several errors. First of all, they omitted to indicate who had made the acknowledgment. Secondly, if as it appears the court concluded that such an acknowledgmenthad been made from the quoted ruling of the trial judge, this was also erroneous because there was no way the trial judge's statement could be attributed as representing the views of either the Attorney General (who was the second respondent) in the Judicial Review application the trialJudge was considering or the IGG, (who was the first respondent) who was never represented at the said hearing. ln fact a perusal of their submissions at the High Court shows that the AG did not make any specific pleadings or submissions in respect of this tssue. Thirdly, in reaching their decision, the learned Justices of Appeal relied, among others, on Article 42 of the Constitution which I have already cited in a quote drawn from the Court of Appeal's decision. L0 15 20 30 ?5 5 Unfortunately, by the time the learned Justices of Appeal made their decision, the AG and IGG had not put on record the impugned Report of the IGG which was the subject matter of the Court's decision. It therefore follows that the learned Justices of the Court of Appeal did not have all the necessary information against which they would have verified the respective claims and submissions of Afric Coop and those of the AG and the IGG on the issue of whether Afric Coop had been heard or not, during the course of the IGG's investigations into its claims. oMr. Arthur tuso Gidagai was alp interyiewed on I 1* June 2OO4 in rcsryt of which on l Oh June 2OO4, he wrcte to IGG. He gaue a histoty of the matter and denid any lorowledge of the &nrentJudgment or Reprt of IGG, which did not mention intercst on blocked bar* accoan8 and balances. He maintained that thegenuine conrentJudgment, which mentiond intercst on blukd bank accounts, was the conwt consentJudgment He was not able to explain how Mr. Richad Odimbe cante to tefer to a dilfercnt Conrent ludgment when he wtote to IGG, Auditor General and Dirwtor, Ciuil Litigation and he indicated TIAT Mr. Odimb wotild fu fust placd to explain wherc he obtaind that bnsentJudgmentftom. He indicated that when he popd a final settlement of the cax he filed in 1989, he did not mention anything abut the blooked bank arcounts fuause 20 )q 30 31 To this extent therefore, the learnedJustices may only be partially blamed for having erred in fact, because they relied on the evidence, which was not available on the 10 Record of Appeal at the time they decided. This observation notwithstanding, the claims of Afric Coop about being denied a hearing by the IGG during the process of making the 2004Report were not factually correct. This was borne out in the IGG's Report which was eventually put on the record by the AG and the IGG, following their successful application to this Court in AltomeyGeneral &Anotheru. Afric b- ls operatiue tuiety Limitd, Misc. Applicatiott No. 6 of 2OI2 . That Report clearly showed at page 288 that Mr. Arthur Bosco Gidagui, who was the Chairman of Afric Coop was interviewed by the IGG on 1 I il' June 2OO4. T'.he summary of the matters that were covered by the interview, as well as Mr. Gidagui's responses were captured inparagraph 9.1.48 at pages288 -289,as follows: he tok it forgranted that Govemment of Uganda was awate of the claim. He thercforc did not w the necd to raise an obuious matter. He futther indicatd that he made a Petition to His ExceIlency lhe Prcsident oyer the matter bwaux the claim on blskd bank aeoun$ was genuine. However, he denied having anythiry to do with the letter of I&h Novenber 2003 addrc.sd to IIE the Prcsident by the IGG which was a fotgery. He expessd swprise as to why anyone would want to cheat the Plesidcnt.' Furthermore, the same Report at page 283 also clearly showed that Mr. Richard Odimbe, who had legally represented Afric Coop during the material period, was also was interviewed by the IGG on 16 ' April, 2005. The material aspects of Mr. Odimbe's interview with the IGG was captured in the paragraph 9.1.44 at pages 283 -284 of the 2OO4 IGG's Report as follows: 10 15 20 25 30 5 oMr. Richatd Mimbe otOdimfu & Co. Advocates was inteniewd on 1& April 2OO4 and twtded a statement on uth. He gave a bac$rcund of the mafterand narratd the claims for which Afric Co-op filed HCCS 84 of 1981. He indicated he preprcd the @nsentJudgment and he statd that the @nsentJudgment pouidd that Afiic fup would not prosuub any fiitther pruedfuBs in the matter except for intercst on blrckd acqunts, balances and vehicles. He aLso statd that he was awarE IGG had investigatd the malter and that he had written to IGG on I"t March 1995 dwitg which he drcw attention to 5 of the &nrentJudgmenl He indicaM that the intercst he mentioned was alp in rclatiott to bank balances in spite of the woding of 5. He statd that he aIso copid the letter to Auditor General. He indicatd he could not temember whetherhe attachd a apyof the @nsent ludgment to both lelterc and stated that it wa.s not easy to explain how he could have attachd the bnsentJudgment which made no reference to blqked accounts. He aIso indicatd he did not lotow the bnxntJudgruent which made no refercnce to bttercst on blxked accoun&, balances and vehicles. He maintaind that the paragraph 5 he quotd in the leften to IGG and pirwto+ Civil Litigation did not contradict the @nscntluSment beaux they werc not as detaild as they ought becaare he Iefr out nme words.' Having heard from Mr. Gidagui, Chairman, of Afric Coop and Mr. Odirnbe of Odimbe & Co. Advocates, wlto were lawyers of Afric Coop, the IGG proceedcd to 35 5 make the following conclusions and recommendations with respect to Afric Coop's compensation on blocked bank accounts and balance s, in paragraph 11.5.2 at paSes 354-356 of its Report, as follows: Ahe onlyinfercnce that can fu drawn fton these fac-ts is thatA.fric @p was bhind the fotgeries, as theywould have had theirclaim settld had the foryeries beon sucessfiil. Odimb & &. Advocates rcfend to and quoted thegenuine Consent Judgment in their letten of I't March I 99 5 addrcs*d to IGG and of F Mober 1996 addrcsd to Dirwtor, Ciuil Litigation. However, Mr Nchafi Odimbe denid hauing ever sen the forgd @nrentludgment The only infercnce that can fu drawn frcm the psition t*en by Mr. Odimbe is that he or his firm werc alp involved in the foryery of the @nwnt Judgment. This office thercforc rcwmmends that theforgeries fu rcfenedtoDitwtorof CID for fiirther investigation with a uiew b prcwatfug Mt Afihur brco Gidagui, Chafuman of Afric tup,Mr. Mimfu,andotherc forfotgeryof a judicial docamentand utteringfalx docwnents underwtion 349 and wtion 351 of Penal Me, Chafier 12O laws of Ugmda. I am aware that it could be argued that the AG and IGG also failed in their duty, when they failed either to attach the impugned Report to their pleadings or to apply for the Court of Appeat for permission to put the impugned Report on the record, as they later belatedly did by applying to this Court to have the Report put on the record. However, the AG and IGG's failure to put the Report on record does not discharge Afric Coop from its burden of proving the allegations it had made that the IGG had violated the rules of natural justice during its investi8ations. This is particularly so, bearing in mind that it is Afric Coop which had initially filed the application for judicial review and was the appellant before the Court of Appeal. As it turns out from the review of IGG's impuSined Report which was subsequently put on record, not only had Afric Coop been heard both orally and in writing, the impugned IGG's Report also made recommendations with regard to several Public 10 15 20 25 30 33 Officers who had at one time been involved in reviewing Afric Coop's claims against the Government of Uganda. I would also add that even if it had been true that Afric Coop had not been heard as they claimed, the proper course of action for the Court of Appeal would have been to quash only those parts of the Report that directly affected Afric Coop and not the entire Report and even so, only to the extent that Afric Coop had been prejudiced by the IGG's actions, findings and recommendations. Given this clear evidence on the record, it therefore follows that the holding of the Court of Appeal rendering void the 2004 IGG's Report on grounds that the IGG had issued it without giving a hearing to Afric Coop has no basis and cannot be left to stand. Afric Coop made false claims to the Court and deliberately misled the learned Justices into quashing the 2OO4 IGG Report, basing on the wrong information which hadbeen provided to the Court by Afric Coop. The motivation for Afric Coop in misleading the learned Justices was obvious - the Report had methodically exposed their scheme to defraud the Government and people of Uganda of colossal sums of money through forgeries of not only court documents but also IGG Reports and letters. 15 20 25 34 The IGG's investigations and the disciplinary/other recommendations the IGG made were clearly within the mandate conferred upon the IGG's office by Articles 225 and s 230 of the Constitution and the IGG Act which were reproduced earlier in this Judgment. None of the affected officers had come before Court to impugn any of the findings or recommendations thathad been made against them in the appeal that was under consideration by the Court of Appeal. It was therefore erroneous for the learned Justices of Appeal to quash the entire Report covering other public officers, ro when these matters were not before them. 5 I therefore find that the Court of Appeal erred in finding that the IGG's letter of 1.1 December 2OO5 was a Report which was void on the basis of Article 42 for failure to give Afric Coop a hearing. I also find that to the extent that the ruling of the Court of Appeal also extended to the IGG's Report of July 2OO4,the learnedJustices also erred in ruling that the IGG's investigations and resultant Report of July 2OO4 were void for failure to follow the rules of natural justice, because Afric Coop had achrally been given a hearing. 10 Lastly, I also find that to the extent that the learned Justices also erred when they quashed the entire impugned IGG's Report, when they had not reviewed it to be able to confirm the claims of Afric Coop. Since this Report was not available on the Record of Appeal at the time the learnedJustices of Appeal disposed of this appeal, it is difficult to justify the basis on which the Court found that Afric Coop's allegations of IGG having failed to follow rules of natural justice had been proved. I would thereforc allow Ground 2. 1s Ground l ofAppeal I now turn to ground 1 of the appeal which was framed as follows: 20 *Ihe leamdlusties of the @urt of Appeal end in law and in fac't in holding that the IGG had no mandate to investigab a ConrentJudgruent that was allqd to have ben foryd.' Submitting on this ground, the AG and IGG contended that the IGG had power to investigate the alleged forged Consent Judgment. They submitted that Afric Coop in its request to the Government for payment and in its subsequent negotiations with Government, attached a copy of a Consent Judgment which was different from the one their lawyers, Odimbe & Co. Advocates had earlier submitted to the IGG on 3.d October1995 in the course of its investiSations into proposed payment of interest to 25 35 Afric Coop which the Government was processing in fulfillment of the Consent Judgment signed in H.C.C.S No. 84 of 1981. The AG and IGG also contended that such an investigation did not amount to an investigation of a matter in court as was found by the Court of Appeal, The AG and IGG contended that while the Court of Appeal was alive to the fact that the IGG was investigating "a purprted ConsentJudgment"the Cotrt nonetheless went ahead to wrongly find that the IGG had acted illegally. The AG and IGG further contended that the Court of Appeal wrongly relied on this Court's decision in &tttiba & 2 Othen u. the IGG, Ciuil Appal No.6 of 2OO6. T:hey contended that the Sentiba case (supra), was distinguishable from the present case because in this case the IGG had applied to the Court to set aside a Consent Judgment ancl to allow her to "investiSate the circumstances leading to the signing of the contested Consent Jud5;ment." 15 70 36 The AG and IGG further contended that since both copies of the Consent Judgments thathad been tendered by and/or on behalf of Afric Coop to the Government at 5 various times could not all be correct, the discrepancy in clause 5 thereof called for an investigation to ascertain which copy was the correct Consent Judgment. Furthermore, the AG and IGG argued that not only was it within the mandate of the IGG to find the source of this fraud, it was also incumbent upon the IGG to do so. The IGG's failure to do so, the AG and IGG submitted, would have been a dereliction 10 of duty by the IGG. The AG and IGG argued that in the Sentiba case (supra), the Supreme Court was dealingwith an application which had been made by the IGG, when it had not been in the matter, seeking to set aside a Court Judgment. In the instant case they argaed, zs a clear fraud was being advanced by Afric Coop since a forged Consent Judgment was being used by Afric Coop to pursue payrnent of large sums of money from the Government. On this basis, the AG and IGG therefore contended that the IGG's 5 investigation of the forged Consent Judgment did not amount to an investigation of a matter currently pending in Court, or a decision of the Court as was found by the learnedJustices of the Court ofAppeal. The AG and IGG also contended that the IGG was merely investigating the authenticity of a copy of a Consent Judgment, since Afric Coop had filed two different copies of the same ConsentJudgnrent, and hence the need to establish which of the two Consent Judg,ments was Senuine. According to the AG and IGG, this did not constitute an atlempt to interfere with, vary or set aside a Judgment of the Court. The AG and IGG concluded their submissions by contending that the IGG had acted within its legal and constihrtional mandate to undertake the investigations that it did. In their reply, counsel for Afric Coop supported the findin5gs of the Court of Appeal that the IGG did not have power to investigate the impugned Consent Judgment. Relyingon section 19(1) (a), (bl and (c) of the Inspectorate of GovernmentAct, 2002, counsel for Afric Coop contended that the IGG had no authority to investigate the matter in issue. They argued that section 19 was clear, unequivocal and that no exceptions could be read in it. Counsel for Afric Coop further contended that the Sentiba case (supra) was not distinguishable from the present case. Counsel submitted that in both cases, a Consent Judgment had been entered into with the Attorney General for paynent of Iarge sums of money. They further submitted that as both Consent Judgments were being complied with, the IGG suspected a fraud or connivance between the parties that would lead to loss of public money and swung into action. Afric Coop's counsel further contended that this Court was being called upon to determine the limitations of the authority of the IGG as provided for in section l9 of the Inspectorate of 10 15 20 25 37 Respondent's Submissions on Ground 1 5 Theycontended that the AG and IGG had changed the issues that were before the Trial Court and the Court of Appeal. Relyrng on pa5es 95 and 138 of the Record of Appeal for issues agreed to be adjudicated upon in the High Court and Court of Appeal respectively, counsel for Afric Coop contended that the nature of the trial in the High Court and the Court of Appeal, which was by way of Judicial Review, had to be maintained. Counsel for Afric Coop also subnritted that the modus operandi of a Court of Judicial Review differed from an ordinary trial. Relying on this Court's decision of Milly Masnfu v. Sugar &rporation (U) Ltd & Anor, Supeme burt Ciuil Appal No. I of ZOOQ counsel for Afric Coop contended that the same mode of operation had to be applied in the first and second appellate Courts,, as a nlatter of Judicial Revicw. Counsel also relied on the case of I?. I?ancis Bahikitwe Muntu & I5 Othen u. Kyanbgo Univercily, H$h Coutt Mircellaneous Application No. 643 of 2OOSin support of their submissions. Lastly, counsel for Afric Coop urp;ed this Court to ignore the AG and IGG's submissions that seemed to be going in the merits of the investigation rather than to the issue whether the IGG had powers to investigate a matter that had been settled or pending in Court. He argued that Court should be able to resolve this issue without regard to the question whether the IGG was investigating"a forged" Consent Judgment or any other grave matter. He contended that the two issues to 10 15 20 25 39 Counsel for Afric Coop further contended that a Court ofJudicial Review was not concerned with the merits of the decision complained of but with legality, rationality and adhering to the rules of natural justice in the decision making process. Relying on the decision of Kasule J. (as he was then) of Johnlet TVmwebare v. i4alcercrc Univenity & 2 Othett, High Court Civil Application forludicial Reiew No. 353 of 2@S r counsel for Afric Coop invited coud to consider this Appeal as one arising from a claim for Prerogative Orders as opposed to an ordinary suit. 10 15 20 25 consider were whether Afric Coop's claim of illegality could be proved as against the IGG and whether the IGG had authority to investigate a matter that was pending or thathad been settled in Court. I have carefully considered the submissions of both parties on the above ground of appal. The issue that arises from this ground is "Whether the IGG had authority to investigate the impugned ConsentJudgment in issue." In holding that the IGG did not have the authority to investigate a consent judgment that was alleged to have been forged, the Court of Appeal observed as follows: "In the instant case the consent judgment had uarious aspccts to it. &me of there asryts werc fuIlyrettled while othen werE still undetnegotiations under the aegis of the cowt as pinted out aboye. The issae of the ftozen bank acaunts was still bing negotiatd. It cannot fu denied it was pafi and parcel of the transaction. It was still pnding in court whichever way the Iearnd ilial judge chose to Iook at the matter, he was faced with a consent judgment which was a decision of the court under sution I?(I)(a) and the rcmaining frozen bank accounb issue still pending beforc coutt under (I)(c). Ihe IGG's mandate was clearlyousted by 19(1)(a) and (c)' Irrespectivc of whichcvcr version of clause 5 of the Consent Judgnlcnt onc hcld to bc valid, the first part of this clause read as follows: "In consideration of this settlement, the plaintitrhercby withdravs the instant suit against both Defendanb and...' The reference to the plaintiff in this clause referred to Afric Coop, while the reference to the Defendants in the clause was the Government of Uganda and UCB. Reference to the settlement on the other hand, referred to all the terms of the agreement as reflected in the Consent Judgment including the payment of US $ 832,OOO and the attendant terms. In nry view, the clause 'hereby withdraws the instant suif in Paragraph 5 was unequivocal. It meant that on the signing of the Consent Judgment, no matter remained in Court and no claims of Afric Coop remained in Court. The instant suit 30 40 Consideration of Ground 1 of Appeal 5 was referrinS to H.C.C.S No. 84 of 198 L The latter part of clause 5 of the Consent Judgment is however, what remains in controversy. But it should be noted that irrespective of whether or not the clause in Paragraph 5 only covered interest on blocked accounts, balance and vehicles, the second part of clause 5 was concerned with the issue of barring Afric Coop from filing future suits against the Government and UCB. It cannot therefore be said that Afric Coop was pursuing its claims against the Government, because there was still a matter pending in Court, as the Court of Appeal found. Indeed, as the AG and the IGG argued, if this had been the case, all Afric Coop would have had to do, once the negotiations with the Government on this issue were not bearing any fruit, was to seek for a hearing date from the Court, to enable them to lead the evidence on the pending matters and to enable the Court to determine it. But Afric Coop did not take this route because it knew that the Consent Judgment had extinguished all its claims as outlined under H.C.C.S No. 84 of 198I. Given this background, it was therefore erroneous for the Court of Appeal to find as they did, that there was still a matter pending in court under H.C.C.S No. 84 of 1 981 and that therefore the IGG was barred by section 1 9 of the IGG Act from investigating it in 2OO4-2O05. On the other hand, Afric Coop also argued that the issue of interest on'blocked accounts, balances and vehiclel was part andparcel of the ConsentJudgment it had reached with the Attorney General in HCCS No. 84 of 1981 in 1989. But as I discussed before, the IGG's investigations revealed that the copy of the Consent Judgment that Afric Coop was relying on, as well as the supporting documents allegedly originating from the IGG's office were forged in material respects. It can therefore not be said that this forged Consent Judgment could not be investigated by the IGG on grounds of section 19(1) of the IGG Act. I entirely agree with these views and holding of my colleagues in Atbrney Genenl & hsrytor C,eneral of 10 15 20 25 41 5 Covetnment v. Afric C;ooprative fuiety, Mirc. Application No. O6 of ZolZ,where the Court held as follows: 'rlf it twned out, and therc is ctdible euidence forit, thatin fact therc werc two consent judgments, and this coupld with allegations that one of them was a forgery, then investigating a foryery could not anount to investigating a judgment of the court It should have fun neessary for the Court of Appeal to study the tuII rcprt and satisfy itxlf as to whether the investigations were on the ualid consent judgment issud by court is or on the allegedlyfotged one.' A forged Court Order or Judgment or a fuaud or attempted fraud committed in the process of executinSg or implementing a genuine Court Judgment is not, in my view, outside the ambit of the IGG's power to investigate. This is particularly so, because section l9 of the Act should not be interpreted to override the clear provisions of Articles 225(1)(b) and (e), 226(2)and 23O(l) of the Constitution which do not contain similar restrictions on the powers of the IGG as section l9 of the IGG Act. While I appreciate that articles 225(1') and 230(5) gave Parliament the power to prescribe the powers of the IGG, it callnot be said that Parliament was expected to exercise these powers to reverse the express provisions of the Constihrtion with respect to the powers of the IGG. 10 25 30 4? "A perasal of the rcprt shows serious allegations of fraud and foryery rcgading the &nsent/udgment. To begin with, therc cannot fu two judgments issud by one court over the same mafter. If one judgment is a forgery, then it cannot fu a judgment of court' 'l'his Court further went on to also lrold as follows: ls Before I take leave of this ground, I also wish to point out that the powers of the IGG to investigate forgeries are wide. Under section 9 of the IGG Act, the IGG may, amonS others, undertake investigations of officers and leaders serving in Courts of law. It therefore follows, in my view that it is only in those cases when the Court is seized with the matter or which are covered by a genuine Judgment of the Court, zo Consent or otherwise that would be excepted from the IGG's investigations. 5 Irt me turn to briefly consider this Court's decision in Mon &ntiba & Z Otherc u. Iaspbr General of C,ovemment, Supene @wt Ciuil Appal No. 06 of 2OO8. Both Afric Coop strongly relied on this decision in its submissions. The Court of Appeal also found that this case fell within the ambit of our decision in the Sentiba case. With due respect to the learnedJustices of Appeal, I am unable to agree with their reasoning and conclusion. On the contrary, I agree with the submissions of the Attorney General and IGG that the two cases are distinguishable. In the Sentiba case, the IGG was applying to the Court to set aside a ConsentJudgment for the Court to allow the IGG to investigate the circumstances that led to the signing of a contested Consent Judgment between the AG and the claimants. The Court rightly rejected the IGG's application holding as follows: oln the instant case, it is clear that the Respndent (IGG) was rcquesting the @wt to allow her to investigate ciuil matterc pnding beforc the Court, and this was clarly contrary to the clew prcuisions of the law. In order to set aside a consent judgment the rcspndent had to carry out investigations to establish {raud and this was not prmissible at this stage. In the instant case, there were no proceedings before the Court in respect of HCCS No. 84 of 1 98I by the time the IGG was requested initially by the Fresident of Uganda and later by the Ministry of Finance to look into the validity of claims which hadbeen made by Afric Coop involving colossal sums of money. In so doing, the IGG was acting under powers vested in it under Article 225(l)(e) and (2) which provide it to investigate any matter referred to under sub article 1, by any persorl or on its own volition. The same Constifution, under Article 230(2) empowers the IGG on completion of its investigations to make such orders and to give such directions as are necessary and appropriate in the circumstances. The impugned IGG's investigations and Report of July 2OO4 were, in my view, undertaken in exercise of the IGG's Constitutional powers under these articles of the 10 15 20 43 5 Cotrstitution and not for the purpose of investigating either pending or completed matter in Court. I therefore find that the learned Justices of Appe al erred in law and in fact when they held that the IGG was barred from investigating Afric Coop's claims against the Government of Uganda for payments based on blocked bank accounts and balances, which were based on a forged clause in a ConsentJudgment that had been entered into between the AG, LICB and Afric Coop. I would therefore allow Ground 1 of Appeal. Grpund 3 of Appeal Ground ll was frarned as follows: aThe leanedlustices of the Courtof Appal ened in lawand fact in awarditg the Respndent the sum of Ugaada Shillittgs 128,825,004,395/=' Submitting on this ground, the AG and IGG challenged the basis of the award of Uganda Shs.128,825,004,395/= to Afric Coop, contending that it was wrong in law and fact. The AG and IGG submitted that the basis of the Court's award as reflected in its Judgment was that the IGG "had no mandate to interfere in a Court decision and or in any manner still ynnding beforc Court" as provided for under section l9(1) (a) and(c) of the Inspectorate of Government Act,2OO2 and that the "Report ptoduced by the IGG was in breach of Article 42 of the Constitution and thereforc null and void." Relying on section 7 of the Civil Procedure Act which bars Courts to try matters which have either directly or indircctly been dealt with in a previous suit, the AG and IGG contended that the Consent Judgment between the parties was final and could not be varied, amended or extended by the Court of Appeal. They further contested Afric Coop's argument that payment for frozen accounts was part of the Consent Judgment. They contended that the issue of those accounts was settled in 10 15 20 25 44 5 HCCS No. 81 of 1984. The AG and IGG contended that a matter once closed in court could not be reopened, except on appeal. The AG and IGG also submitted that by grantingan award which was not granted in HCCS 84 of I 981 , the Court of Appeal violated the principle of Res Judicata. The AG and IGG further contended that the Court of Appeal could not reopen that Consent Judgment andthat any reopening would violate of the principle of judicial finality. The AG and IGG distinguished the ktttifu cax (suprz.)rcontending that it was about finality of judicial processes. The AG and IGG also submitted if the learned Justices of Appeal were of the view that the issue of payment on interest on 'frozen accounts' was "still pendin5; before Court", then they ought to have sent the matter back to that court before which it was "pending", instead of making the award of Uganda Shs. 128,825,0041395/= as they did. Referring to the Record of Appeal the AG and IGG submitted that Afric Coop had also filed H.C.C.S No. 167 of 2000 against the Attorney General for its money in the alleged "frozen accounts". The AG and IGG submitted that the allegations detailed in HCCS No. 167 of 2OOO were similar in every material particular to the ones currently before this Court and yet the Consent Judgment signed in H.C.C.S No. 84 of 198 I closed this nlatter. The AG and IGG drew this Court's attention to the Record of Appeal (Page 1 l6) where the trial Judge Mwangusya J. had also pointed out this fact, while dismissing Afric Coop's application forJudicial Review. The AG and IGG further submitted that since this was a case of an appeal from a Ruling made in Judicial Review application, that the powers of the Court of Appeal in considering an appeal arising there fronr were limited by section 36 of the Judicature Act to granting Orders of Certiorari, Prohibition, Mandamus or Injunction. The AG and IGG contended that in this case, an award of Uganda Shs. 10 15 20 25 45 5 128,825,004,395/= was in effect a grant of Afric Coop's prayer for an Order of Mandamus. The AG and IGG contended that the Court of Appeal was not alive to the well settled principles before the grant of an order of mandamus canllr' made and therefore did not consider any of the known grounds for the grant of such an Order. Relying, on Halsburt's lavry of F,ngland,4th Edition 2OOI VoI. 1(I) frSe 287, the AG and IGG also submitted that in an application for an Order of Mandamus, the applicant must show that the duty to be enforced is statutory and imperative and not discretionary. They further submitted that Court will not grant an Order compelling a party to use his discretion tn a partiailar way. Afric Coop's submissions on Ground S In reply to the AG and IGG's submissions, counsel for Afric Coop contended that after filing the ConsentJudgment, Afric Coop continued negotiating with the Government in respect of the money on their frozen accounts and the accruing interest. They further contended that the Government engaged a firm of Auditors, P.K. Sengendo to verify and analyze their claims and that it was on the basis of their computations lhat a frnal figure of Uganda Shs. 128,825,004,395/= was arrived at, as at 28th July 2006. Afric Coop's counsel also submitted that the Attorney General had not, in any of the pleadings filed in the three Courts, denied that their office had approved payment of Uganda Shs. 128,825,004,395/= to Afric Coop as a full and final settlement for the payment of the money that was frozen on Afric Coop's accounts, plus the accruing interest as at 28th luly 2006. Counsel for Afric Coop invited Court to refer to the Agreed facts of the Appeal at the Court of Appeal in the Conferencing Notes found on paSes 137 and 138 of the Record of Appeal pafiicularly paragraph 3 thereof, which provided inter alia, 10 15 20 25 / 46 5 Counsel also referred to the Internal Memo of the PS/ST, Ou,.O 26tnJuly 2006, which appears at page 55 of the Record of Appeal. This Memo shows that after the computations, the amount recommended and approved for payment to Afric Coop wasUganda Shs. 128,825,004.,395/=. This, according to counsel for Afric Coop, was the amount approved by the Government on the advice of the AG but could not be paid because the IGG had made an ultra viresReport that stopped the said pa)rynent. On Mandanrus, counsel for Afric Coop concurred with the AG and IGG that the Order of Mandamus had to be issued in respect of a statutory duty. Counsel submitted that there was an order by the Ministry of Finance to unfreeze the accounts of Afric Coop. Relying on the Banking (hftwaing of Amun$) Me4 1986, bgal Notice No. 2 of 19E6;which cancelled the freezing of Afric Coop's Accounts, counsel for Afric Coop submitted that this was the Order that Afric Coop was seeking to enforce. Responding to the submissions of the AG and IGG on res judicata, counsel for Afric Coop submittecl that the Court of Appeal did not finally resolve the matter and did not affect the rights and obligations of the parties to H.C.C.S No. 84 Of 1 981 . 10 15 20 25 47 qly,2OO5, aa anount of Uganda Shs 128,825,OO4,595/= was anfbmd and appovdby?d Respndent' Counsel for Afric Coop contended that once facts arc agreed to by parties before Courl, as was the case in this appeal, the Court was entitled to treat them as undisputed facts and could safely adjudicate on them as if the same is the correct state of affairs, as the Court of Appeal did in the instant matter. Counsel invited this Court not to allow the AG and IGG to renege on their earlier position. Counsel further submitted whereas the AG and IGG wanted Court to believe that the tlganda Shs. 1 28,82 5,004,i395 / = was awarded by the Court of Appeal, the truth of the matter was that the Court was relying on the agreed facts to arrive at the figure. 5 Counsel for Afric Coop concurred with the Court of Appeal's holding that the issue of frozen bank accounts was still being negotiated, Counsel for Afric Coop further submitted that the cause of action in this matter arose in 201 1, when Afric Coop came to know that it was not to|cr-paid owing to a damaging Report that had been made by the IGG. It was also counsel's submission that this appeal emanated from an application forJudicial Review wherein, Afric Coop challenged the actions of the IGG to wit:-the action of purporting to investigate in a matter settled in Courtl purporting to investigate a matter affecting Afric Coop without according her a right to be heard; and attempts by the IGG to usurp the powers of the Attorney General. Counsel invited Court to draw a line between the cause of action in this matter and the background or historical facts which had come up. oWe nile that the IGG had no mandate to intederc in a coartdeision and or in any matter stiil pnding beforc the @urt-9. 19 (I)(a), and (c). The Report he pduced in non-compliance with Article 42 of the &nstitution was nuII and void and thercforc of no conquence. The appllant is conryuently entitld to payment of Shs. 1281825,004,395/= apprcved by the Goverament in 2OOO plus intercst at 25% ftom the time the IGG stoppd payment in 2OO6 until payment in fiill witll costs of the appal herc and fulow. We so Otder.' 10 15 25 48 Counsel for Afric Coop also contested the AG and IGG's submissions that the Court of Appeal ought to have referred the matter back to the High Court. Relyinl; on section 1 1 of the Judicature Act, counsel for Afric Coop submitted that the Court of Appeal had the jurisdiction to grant such remedies as to meet the ends of justice. C.onsideration of Ground S It should be recalled that under this ground, the AG and IGG contended that the Court of Appeal had erred in law and fact when it awarded Afric Coop Uganda Shs. 20 128,825pO4,395/=. The learnedJustices of Appeal considered the issue of remedies very briefly under issue 4,before they held as follows: 5 The learnedJustices of Appeal only gave two reasons for ruling in favour of Afric Coop which were not valid. In my consideration of Ground 2 of appeal, it became clearly evident that Afric Coop had deliberately lied to the High Court and the Court of Appeal when they contended that they were never heard by the IGG during the investigations that resulted into the IGG's Report of July 2OO4. The IGG's Report which was subsequently put on Record of Appeal put this issue to rest. As I noted before, this Report was not on record when the Court of Appe al heard this appeal. Nevertheless, with all due respect to the learned Justices of Appeal, I do not find this tobe a good enough ground for this Court to uphold a colossal award to Afric Coop which they are not entitled to. One of the purposes of providing for appeals is to correct errors of law or fact or both occurring in the process of adjudication. I am therefore unable to uphold the award of Uganda Shs. 128,825,004,395/= on the basis of this reason. The second reason that was advanced by the Court of Appeal to award Afric Coop Uganda Shs. 128,825,004,395/= was that the IGG had no mand,ate to interfere in a court decision or in any matter pending before Court. With all due respect to the learned Justices of Appeal, I am again unable to agree with them that this would justify their aw ard of U ganda Shs. 7 28,825,00 4.,395 / = to Afric Coop. Again, my discussion of this issue under ground one of Appeal is relevant here. For the sake of clarify, I will recap my main conclusions on this ground. Having carefully analyz,ed the conduct of both the Attorney General, the IGG and Afric Coop, I came to the conclusion that by the time the IGG undertook its investigations into Afric Coop's claims against the Government on blocked bank accounts and interest, arising there from, neither there was a Court decision which the IGG interfered with nor a matter that was pending before Court. That being the case, this cannot provide a le1;al basis for the Court of Appeal's award of Uganda Shs. 728,825,004,395/= to Afric Coop. 10 15 20 25 49 Legal Notice to defreeze Afric Coop's Bank Accounts of 1986; (d) the ends ofjustice, which demand that they should be refunded their money held in blocked bank accounts; (e) the claim that this Award/ palnnent was part of the settlement arising under H.C.C.S No 84 of I 981 ; and lastly (f) Afric Coop's contentions that their claims were based on a new cause of action that arose from the IGG's violation of their right to a fair hearing. I have taken parlicular note of the fact that Afric Coop did not adduce any letter written to them, where the Attorney General agreed to pay this amount. Instead, Afric Coop relied on Internal Mernos generated from several officers in the Ministry of finance and not Attorney General's Chambers in support of its claims that the Attorney General was ready to pay but was stopped by the IGG. One such letter that Afric Coop relied on to contend that the Government of Uganda had acknowledged their debt was written by one Ogol John, allegedly on behalf of the Secretary to the Treasury. The letter, which appears at page 502 of the Record of Appeal, read as follows: 2?d Febraary 1999 RE: CI,AIM OF INTEREST ACCRWD IROM ACCOUNIS-HCCS NO. 84/1981 We arc witing with rcfercnce to Srour ACSL/H/ST/2/98 of ?a March 1998 on theabvesubj*t A.fter the neessty intemal consultations within and outside Government, the Permanent furctaty/furctary to the I\easwy, has instutctd me to inform you that, Govenment acbtowledges your debt, however in making the iltressary paryents, the ptpvisions of the Cunenry Reform Statute SS 2 and 3 will apply, beforc appopriate interest raEs arc ured to compute the @npen&tion due. 10 15 20 5 25 30 1he Chafuman Afti c Co - operati ve tu i ety Ltd P.O.Box 10373 I(AIUIPAIA 51 5 This is thercforc to let you lotow abut the above fotmulae and to rcquest Srou to teuire, adjust and rcsubmit your calculation ac@rdingly. It is our undentanding that this wiII fu the final rettlement on this cax (HCCS 84/r98r). lohn C. Ogol for PERMANENT SECREIARY/SECRETARYTO TIIE TRHSURY This letter was however subsequently disowned by the PS/ST. On l6th f)ecember 2OOO, as part of the Government's preparation for the defence of Afric Coop's Suit before the High Court, the PS/ST wrote to the Solicitor General as follows: 10 15 25 Atric Ltd v. Attorne General H.C.C.S No I 67 of 2OOO A letter (rcf MF/ST/IO7) dated 2?d February 1999 and twitten by,lohn C. Ogol, for the Permanent kcrctaty/furcWto the Tleasury, to the Chairman, Afric @prative fuiety, has ben bought to my attention. 1he letter rcIates to the afuve ongoing civil suit I wish to state categorically that I did not authorire Mr. OSol to write this letterand that the statement in the letter, that K...the Permanent furctary/furctary to the Tleasuqt, has insfrucd me to infotm you, that Government aclotowldges your debt.. .' is totally falre. I an hercbyrcquestingyou to take aII neesatystep toensure that the letter written byMt Ogol does not undetmine Governmenfs defence against this suit Youn sincercly, I find it unusual and surprising that Afric Coop was either copied or accessed most of the internal Department or Government letters when they would ordinarily have been recipients of the same. This would seem to support the IGG's contention that some officers in Government were either abusing their authority or offices or were 20 30 E ltumusiime-Mutebile PERMANENT SECRETARY/SECRtrARY TO TTIE TRFASURY 52 5 colluding with Afric Coop to recommend/process a payment to Afric Coop which based on forgeries and false claims. This pattern continued to be reflected even in the Conferencing Notes that Afric Coop relied on at the Court of Appeal to claim that the Attorney General and IGG had agreed that 'By 20O5, an amount of UGX 128,825,004,395,/= was confirmed and approved by 2"t respondent (Attomey General).' Counsel for Afric Coop invited this Court to refer to the Agreed facts in the Conferencinlg Notes of the Court of Appeal. Given the overwhelming evidence on record and the stand of both the Attorney General and IGG contesting Afric Coop's claim of Uganda Shs. 128,825,004,395/= or any part of it, I am unable to do so. Counsel for Afric Coop did not provide this Court with any reason why this Court should ignore the overwhelming evidence on the Record of Appeal to the effect that the Attorney General and the IGG have never agreed to pay Uganda Shs. 728,825.,004,395/= and instead rely on a Statement in the Conferencing Notes filed in the Court of Appeal to bind the Attorney General and the IGG. The position of the IGG on Afric Coop's claims against the Government for compensation and interest on frozen accounts and balances, was well articulated in its detailed Report dated July 2OO4 and was summarized in the IGG's letler dated 1.' December 2OO5. In fact, it is the letter that Afric Coop relied on to contend that the IGG had overstepped its mandate and which was the basis of their application for Judicial Review and the resultant appeals. Given this overwhelming evidence, it cannot be expected for this Court to ignore it in favour of a one line statement in the Conferencing Notes which reads to the contrary and whose authenticity cannot be ascertained by this Court. On the other hand, the official position of the Attorney General was affirmatively communicated in the Attorney General's letter to the President dated 3O'h March 10 15 20 25 53 2071,which was copied to, among others, the Chairman of Afric Coop. I will reproduce that letter in its entirety. YourExcellenry RE: TITE MISIOKTUNES AND PROSPECIS OFAIRIC COOPERATTW SOCIETY LTD 10 20 35 1. This is to aclotowledge tweipt of Srow Esrcellenq/s lettur rcfercnce rc/I7 dated I4 JuIy 2OlO rcIathg to the abue subjeot I aplogise that I was unable to action the matter earlier. I have usd the time to investigate, consult ertensively and anal;ze critically. I refened the matter to the hlicitor General and to my colleagae Hon. IHrick Rahindi, M.p Deputy Attomey General/Minister of State forJustice and @nstitutional Atrai$. f aI& toik into account the uiews of Mr. Paulo &balu p,/a M/s &balu & LuIe Advxates who indicatd that they arc @unsel for the claimant fuiety. I mention these otrices and eminent Ftsons not to implicate them in my opinion but to indicate to Your Excellency that my opinion is butfies*d by t@hnical exprtise and plitical insight I an thercforc in psition to aduiw you as follows. 2. At this pint in time, it is not pssible for this office to aduire that Government of Uganda paSr Uganda. Shs. I, I 96, I 8913 5616og or any part thetwf to the claimant. I have considercd the rwords and docwnentation supprtirtg the claim. I rcfer to rcfercnce TS. 176.2005 datd OI.IZ.?1O1 ftom the Insrytor General of C,overnment (IGG) to the Hon. Minister of State forlusticc and @nstitutional Atrai$. (Copy attachd) The IGG indicates forgery, fraud and uttering false d&aments as the foundation of the claimanfs claim. The IGG,s rcport has ben on rwtd since I"t Deembr 2OO5. My office cannot ptwd to handle the matter as if it does not btow of the ert$ence of this rcprt of the IGG. I have lookd into the matter and concludd that the said ,eprt of the IGG is a rcIeuant material and sufficientgrcund toprcvent Govemment of Uganda ftom pwessing and reftIing the said allegd claim of M,/s AIric @perative tuietyltd. 3. By ag of this letter aII rcIeuant aathoritias and petsons arc accotdittgly infotmd. E KltidduMakubuSa,M.P 54 4H.E Prcsident YK Muxveni, hesident of the Republic of I-Iganda State Houff, htebbe. 15 25 30 5 44. That the parties enterd into the bnxntJudgment on I 7 JuIy, I g8g. 5. That I lotow that the Conrenttudgment entetd into was as follows: 10 15 20 25 i. The fiirct Defendant shall make auailable to the plaintiffat cost fob Mombasa or Dar-es-salaam Cotrre and/or Tea or anyother exprtable commdities in sutftcient quantities to enable the Plaintiffto rcalize therc frcm US $832,OOO to cover the cost of acquiring 26 Mitsubishi Minibuses. v. In consideration of this settlement the Plaintitr hercby withdraws the instant suit against bth Defendants wtd the Plaintitrundertakes not to institute orpto*cute aad furtherpocdittgs in this matterexceptfor intercst. 6. Ihat I btow that the ?a Respndent paid the applicant aII sums as agd in the anrent 7. That I btow that later the applicant pesented another Conrent/udgment pttrpttdlyentercd into with the ?d rcspndent 8. That I lotow that the latter bnrentJudgment was similar to the former save for paragraph 5 which had the words "on blocked bank accounts, balances and vehicles'addd on to the last wotd ointercst . 9. That I btow that the Ii rcspndent ldgd investigations into the paytnent of monies made by the ?a rcspndent to the applicant in rcIation to Civil Sait 84/1981 and the disparityin the two/udgments. 1O. That I lotow that the In rcspndent pepatd a Repfi which, inter alia, rcndercd the latter &nsent,ludgment a fotgery. I I. That I brow that with intent to exrate pragraph (e) of the latter conffnt the applicant fild Civil Suit 167 of 2OOO against the ?d rcspndent for 30 55 ATTORNEY GENERAL-MIMSIER OF IUSTTCE AND CONSTITUNONAT ATTATRS Furthermore, when Afric Coop filed an application for Judicial Review before the High court, again the Attorney General filed its Reply, which reflected its position on Afric Coop's claims, particularly paragraphs 5 to 14 which I will reproduce here for ease of reference. 5 10 15 20 25 14. That I lotow that it is just and quitable that this @urt dres not entefiain this application for it is basd on fraudulent, false and mirconceiud prceptions that arc notgrcunded in law and fact" Since Afric Coop partly relied on Internal Memos and letters exchanged between various officials within the Ministry of Finance and also the Ministry of Justice to support its contentions and that the Goyernment of tJgandahad approved and agreed to pay them Shs. 128,825,004,395/=,I will also take time to analyze Afric Coop's contentions vis-A-vis the letters and Memos they sought to rely on. A close arralysis of these correspondences relied on shows that no such final aSreement to pay Afric Coop was ever reached by or between Ministry of Finance and Afric Coop. Mere computations or recommendations made such as the one by an Officer in the Ministry of Finance (the Ag. f)irector of Budget) to the PS/ST dated 26th July 2006 which counsel for Afric Coop claimed hadbeen written by Ag. Director of Budget, canl'lot bind the Government or the Attorney General as Afric Coop argued and would wish this Court to rule. Some of these recommendations/claims were based on forged or suspected forged documents believed to have been tendered by Afric Coop or its allies in this scheme. Other recommendations were auditors P.K. Sengendo, whom Afric Coop claimed should be binding on the Government because it had appointed them. With all due respect to the learned Justices of Appeal, I am unable to uphold their holding that Afric Coop's claim was entitled to a payment of Ugancla shs. 1281825,0041395/= from the Government arising out of either a computation 56 UGX 68154715501541 as intercst ualue in rcspt of monies allegdly blrckd/ftozpn by the defendant I 2. That I futow that Ciyil Suit No. I 6 7 of 2OOO was dismissd on a peliminary ob,jection of fuing time barld. I 3. That I lotow that th* mafter has fun the subject of uarious applications and cause bforc this Court that haue fun dismisd on the piat of Iimitation of time. 5 which the Attorney General had approved for payment prior to the IGG,s impugned Report. There was no document on the Record of Appealwhich the court ofAppeal could have relied on to reach its decision. If there was one that the court believed did so, the learned Justices of Appeal should have specifically made reference to it, so that this Court is not left to speculate. I am further convinced by this view in the court's reference to the fact that the approval of Afric coop's payment had been made in 2006. T1ne impugned letter by the IGG was dated 1.t December 2005, while the main Report of the IGG,s investigations into Afric coop's claim was dated July zoo4. The contradictions in the Court of Appeal's finding and ruling hence became evident. How could the IGG's letter (or Report as it was referred to) of December 2OO5 have stopped a pa)rynent to Afric coop, when the Governrnent only reached a decision to pay Afric Coop in July 20O6? Apart from the letters,/documents originating from Government, the Record of Appeal is also filled with documents that show that Afric coop's claims and conduct have not been consistent with the positions they articulated in this court or the courts below. 10 57 first of all, they clainred that the payment in question was based on a consent 20 Judgment reached between them and the Attorney General for 'interest on blocked bank accounts, balances and ntotor vehiclesl They invited this Court to accept the secondary copy of consent Judgnlent as being a true copy of the original consent Judgment that they failed to produce in this court. Afric coop did not offer an explanation as to why they could not produce the original copy of the consent 2s Judgment in H.c.c.S No. 84 of 198I which they had signed with the Attorney General in 1989. 5 Furthermore, it also beats my understanding why they signed a Consent Judgment that only granted them a right to claim 'interest on blocked bank accounts and balances'and not for the actual balances that were in the blocked accounts themselves, A close reading of the several letters that were exchanged between the Attorney General and the then lawyers of Afric Coop, M/S Odimbe & co. Advocates, prior to the signing of the Consent Judgment between the Attorney General and Afric coop in 1989 clearly shows that in consideration of the payment of US $ Bgz,ooo (paid in exchange of coffee and Tea), Afric coop undertook in writing to withdraw all its claims against UCB. Among the claims that Afric coop withdrew was the claim for the unfreezing of their bank accounts and for general damages arising from the freezing of their accounts. As the record of appeal clearly indicates, Afric coop had all along been making these claims against UCB. However, through their lawyers, Odimbe & Co. Advocates, Afric coop committed itself in writing to withdraw all claims against UCB. They also went ahead and signed a Consent Judgment with UCB. The signing of the consent Judgment meant that Afric coop had foregone all its claims against uCB, which had all along challenged Afric coop's claims that ithad any balances on their accounts. Given this background, Afric coop cannot now be allowed to hrrn around and claim as it did the same moneys from the Goyernment of lJganda. I accordingly find that Afric Coop was not entitled to any compensation from balances in frozen accounts because it voluntarily withdrew its claims both against the Government of uganda and UCB. It also follows that if Afric Coop withdrew its claims to the principal, it could not have lawfully sustained its claim to any interest thereon. A close scrutiny of their claim howeyer indicates that this is what the Court 10 15 20 58 of Appeal awarded them. This award was wrongfully awarded and cannot be upheld. For example, the letters from the President to the Attorney General dated t zrh July 2olo and the Attorney General's reply to the President dated 30th March 201 1 refer to Afric Coop's claim as being Shs. 1,1 96,1 8 g,356,60g / = (One trillion and one hundred ninety six billion, one hundred eighty nine million, three hundred fifty six thousand, six hundred and nine shillings). In the pleading Afric coop filed in HCCS No.I67 of 2OOO, they claimed against the Government of Uganda Shs. 68,347,550,54I = being compensation and interest on blocked bank accounts. After Afric coop's civil suit was dismissed by the High court, Afric coop appealed to the court ofAppeal vide civil Appeal No. 66 of 2ool. Before this appealcould,be heard on its merits, the AG successfully applied to the Court of Appeal for security for costs and payment of their taxed costs. Bahigeine, JA ( as she then was) ordered Afric Coop to pay Shs. 22O,OOO,OOO/ = as securit1r for costs and Shs. 690,777,005/ =, as taxed costs in respect of High court civil suit No. lgz of 2ooo. However, Afric Coop failed to comply with or to appeal against these orders. However in October 2002, Nric Coop through their then lawyers, Sebalu, Lule & co. Advocates changed course and decided to resume their demands against the Government, which subsequently gave rise to this appeal. 15 20 25 Apart from the fact that Afric coop consented to withdraw its claim against the Government and UCB, I am also convinced, basing on the record of appeal that the s documents originating from Afric Coop in support of its claims for ,,interest on blocked bank accounts, balances and vehicles" and their actions taken in pursuant of this claim, all support the conclusion I have reached that Government had never agreed to payAfric CoopUganda Shs. 128,82S,0O4,395/=by ZOO6,as was claimed by Afric coop. If this had been the case, then Afric Coop's claims would not have 10 continued to vary from time to time, depending on who they were writing to. 59 5 counsel for Afric coop laborc'd at length to convince this court to uphold the court of Appeal's awardto themof tJganda Shs. 128,82S,O04,3g5/=ascompensationfor money on blocked bank accounts, and interest accrued thereon. Afric coop based their claim, among others on clause 5 of the consentJudgment they signed with the Attorney General in 1989 in H.C.C.S No. 84 of 1981, which they contended S provided as follows: oln consideration of this seftIement the plaintiffhercby withdraws the instant suit against both Defendants and the Plaintiffundeiakes not to institute or p_rcsecute and fiirther pwdings in this mafter excefi for intercst on btrckd bank accounts, balanes and vehicles., The IGG investigated Afric coop's claim and came to the conclusion that clause 5 had been altered to include the contested clause "on blocked bank accounts, balances and vehicles." The IGG's findings were to the effect that the correct clause 5 of the ConsentJudgment read as follows: sln consideration of this xttlenent the plaintiffhercby withdtzws the instant suit against both Defendanb and the plaintitrundefiakes not to institutc or prosecute and further @ings in this matter except for intercst., The IGG based its findings on the letters which had been written by Afric Coop,s lawyers to the Attorney General, and Ministry of Finance where they referred to clause 5. These letters include odimbe & co. Advocates'letter to the IGG dated 1n March 1 995 and odimbe & co. Advocates' letter to the Director civil Litigation dated 3'd October 1996 [Page 466 Reportl. IGG also claimed that a copy of the original Consent Judgment was available on their file, while what they claimed was the consentJudgment with an altered, forged clause 5 was found in the Attorney General's office and the Ministry of Finance 10 15 20 60 The IGG also found that odimbe had attached a copy of the genuine Consent Judgment which had the original clause 5 which stoppe d at the word (interest,. 2s Odimbe denied this and so did Mr. Gidagui, Chairman of Afric Coop. 5 offices. It is worth noting that in the same offices, the IGG also reported having found not only the doctored consent Judgment, but also the doctored Report of the IGG clearing Afric Coop's pa)'ment, as well as a forged letter, allegedly written by the former IGG,Jotham Tumwesigye. The IGG,s Report indicated that the IGG disowned this letter. Neither the Attorney General nor the IGG were able to produce the original copy of the consentJudgment signed in H.c.c.s No. 84 of 198I. on the other hand, Afric coop also failed to produce the original copy. They however produced a certified Copy of the same from the High Court, which had the altered Clause 5, as IGG claimed. In the circumstances, this court was left with the two versions of clause 5 of the consent Judgments and the responsibility to resolve which one of the two versions was the correct one. I will proceed to do so. In the absence of the original consent Judgment, I have made resort to the other evidence on record to support nry findings. First of all, I find it strange that odimbe & Co. Advocates, on more than one occasion, cited in their letters already referred to, clause 5 which the AG and the IGG contend is the correct one and not their version which included the contested clause. while Afric Coop later on went ahead to contend in its response to the IGG that they only omitted to include the contested clause "on blocked bank accounts, balances and vehiclest', I am not persuaded by their claims. It is not normal for counsel to abbreviate a clause in a consent Judgment, because such a clause amounts to one of the orders of the Court. It should be remembered that once a consent Judgment is signed, filed and sealed by the court, it becomes a Judgment of the court and cannot be changed without their consent. This principle was restated in Wasike v Wanbko, fi976-t9S5l EA. 6Zi, where the Court held as follows: 10 15 20 25 61 K...a mnsent j-udgment or order, whether final or interlxatoty, delifurately made with fiil[ btowldge, with the fiil| anxn$ of the prties or advxates on both sides, is rcgadd as hauing a fuil bind@ contuactual effect on which the I988, which was addressed to the Attorney General. The letter reads in the relevant part as follows: Dear Sir, RE: HIGH 10 or26 URTCTWL NO.84/T981 PROrcSAIFOR EARIERTRADE ARRANGEMENT It is alrc impfiant to note that out of the total 26 vehicles which werc impunded by the Covernment, so far 2 vehicles have fun rctwnd to us Ieaving a balane of 26 uehicles. UNDER 15 20 We have the honour of bringing to your attention ow ptopsals for the final xttlement of the aboue ciuil cax which has fun a subjat of ptotracted negotiations for a prid of 1O yearc. Anong all the claims which werc prcsented to you for consideration, aII partia coil9ey4 y this dispute agtwd that the vehicles werc poprtyof the fuiety and should be compnsatd accodingly as per your Un*nys- tettew HCS4lg I dated ('t October, I 984, and HC84 /8 I dated Z4n May, I 98b, addrcsd to Ug;anda loss Adjusterc and Suweyorc Ltd., rcquestittg them, atnong other thitqgs, to determine the umpnsation ualue for the rcplacement of ow iehicles as at that time. The-Ministry ofJusticeb rcpfi on our claims as prc*nM byM/S p. K &ngendo & co (Arcountan$ and Auditotr) appinted by the Minister of co-opratives and Marketirg, shows clurly under.$ution B, (MODALTIES OF?AVIiEIVIS) claim No. I that wTquote "It is the uiew of the Minisby ofJustice that liability on this rcorc is not denied'. The Minutes of the Tehnical hmmitte of IZh June, 1g84, dircussed at letgth our claims and aln agd that the suiety is to fu compnsatd for the 26 vehicles. A thorcugh study of the conespndences rclad to this case wiII rcueal that although the Govetnment has made all effofis to finalize this mafter, someMy somewherc within the authoities, has trid sucessfiilly to frustrate all Government efforts by blooking ail ditwtiues made so far by the rcIeuant 63 'TheAttoney General, MinisfirofJustice, P.O. Box 7183, IAMPAIA 5 25 30 35 40 5 \Ve hop that undet the NRM Govemment which stands finnlyforits plicyof gJUSTTCE' IOR ALL'you will thotoughly exarnine this case and bring-it to a successfiil end. TTW 10 15 On 9'h March 1988, the Attorney General responded to Afric Coop through their lawyers as follows: gM,/sOdimb&@. Advocates MBALE HIGH qWL NO.84/ I 98 I : A-ERIC CO-OPERA SOCIETYLTD. V. As you ate awane, yourclientsM,/sAfric &-opratiue fuietyltd wrote to me in lanuaty 1988, to ptopx wttlement of the aboue mentiond Sait out of @urt No doubtyou arc awarcof thepopsal madesince theletteraddrcsd to ne was copid to you. Beforc I make necessary mnsultutions on the prcpml, I would like you to confirm the followittg details: l.Thatyourclients arcpepard, at theirown eqren&, notonlytopurchax the commdities that would fu ud forthe barterbut als wouldpayall fes and other dues in rcsryt of imprt and export licences and all duties and taxes palable on the vehicles: 2, rhat in the event of coffe and,/or tea not being auailable in su.fficient quantities or at all they will be agteable to atilizittg other expttable commdiies: 25 30 64 authoities and we btow that all negotiations wiII neuer yield anythitg fruiffiil. In fact Legal Notice No. 2 of Ig86 rcgularizing the fuiett's accounbTs a clear sign that Goverument has alrcadygiuen consent for the rettlement of this c.ase out of &urt. It is against this bac$rcund that we put to you ow propsal for the rcplacement of the 26 uehicles for yow consideration and apprcial:- 20 Youn faithtulll; A.B. Cidagili turcW This letter, which appears at page 472 in the Annexures to the IGG,s Report, was copied, to among others, their lawyers, Odimbe & Co. Advocates, and their other Advocates Mulenga and Karemera Advocates. ATTORNEY GENERAL & UGANDA COMMERCIAL BANK 5 15 20 30 4. That clients would withdruwthe suit bth defendan b with no On July 20, 1988, the Attorrrey General wrote to his colleagues, the Ministers of Cornnlercc, l'inance, and Co-operatives and Marketing as follows: (Hon. Minister of @mmetw Hon. Minister of Finance Hon. Minister of @-opratives & lvlarketing Apparcntly, out of frustuation at the longtime it has taken for the fuiety to rcceive itsdue ampnsation in fotm of danagesrthe fuietyhas nowmadefupuls which- to my mind arc worthwhile accefiing. fhe fuiety * peprA t6 trcgo or withdraw the suit if Govemment would authorize it to purcha.r tea or coffi or in defaultotherexprtable commdities worth (IS $ BSZ,OOO/= which theywill a(prt to an ove$eas @mpany that has agred to supply them 28 Mitsubishi Zg- xater mini-busss. The tuiety is willirg, under the arangement to pay all the expnxs of purchasing the commdities, as well as paying for aII fees and other dues in rcsryt of imprt and ettptt licences and aII duties and taxes palable on thevehicles. Allitwouldrquircistheauthorizationtocan\routthibirtertrade with the attendant facilitations by Gouemment of prwurhtg all nwssary licences and prmission rclabd to the transction. In myopinion, considerhg tlie rcIossal swn of money which Govemment or tlCB would thus save, this ptopxl is vety rcapnable and should b accepted. I shall b gratertil, if you con-fitm to me that you would apprcue of the ptopsals for rettlement Please let me have yourrcspne pomptlyas the case has taken undulytottg to ttuali"E. 35 65 3. That under the prcpsd settlement, the only liability for Govenment would fu the issuance of the neessaryexprt and impfi licences. JNMulenga,S.C. MIMSTER OFIUSITCE/ATTORNEY GENERAL 10 This letter appearc at page 4 t 5 in the Annexures to the IGG's Report. paragraph 4 of this letter is particularly worthy of attention 25 otderas bcuts. I lak forvad b your respnff. 5 10 Youn sincercly, J.N.MulengqS.C. MIMSTER OFIUSfiCE/ATTORNET GENERIIL This letter appears at page 4l 7 in the Annexures of the IGG,s Report. Almost a whole year passed when the respective Ministers were still consulting. [inally, on July I 0, 1 989, the new Attorney General, prof Kanyeiha mba once again wrote to the 3 relevant Ministers of Finance, co-operatives and Marketing and of Commerce as follows: 'The Minister of Finance KAMPAIA The Minister of @-opratives & Ma*et@ IAMPATA TheMinisterof @mmerce I(AMPAIA Dear Colleagaes HCCSNO.84/r98 T ATNCCO.OPERATTW SOCIETYLTD. V. A TTORNEY & UGANDA BANK 25 30 Afrer rrceirirg rwpn&e fum all concernd, the Ministcr of Finance and I, met to rcuiew the situation. rtem aII the considerations we have had, it is our uiei that this cax should b settld out of court on the terms and conditions in the letter by the Minister oflustice,/Attorney General, datd gh iylarch, IgBS to the Afric Ca__Frative fuie$ Ltd. and as fiuther anplified by his letter of Z@ JuIy, I ggg to colleagues on the satne matter, on condition that rte vehicles arc bro:ugfut no tne country and utilized in acandance with the pliry laid down by gpuernment fuondly, thepurchax orotherwiseacquisition of commditiesagd on futwwn thepafiies should bstagetdovera twsnableprid to bagrd on btwen parties. Iastly, therc should b an agtrement with Atric @-opratiue fuiety Ltd. dircharying the Govemment and Uganda Commercial Ba* ttom anyother obligztions arisingfrcm this suit. 66 15 20 5 Youts sincercly, Dr. G. W. I@ryreihamba, MIMSTW OFJUSmCE,/ATTORNEr GENERAL worth noting in this letter is the last paragraph of the letter where the Minister emphasized that there should be an agreement with Afric Coop discharging the Government and the uganda Commercial Bank frcm all other obligations arising from the suit. ' This letter, which was also copied to Afric Coop appears on page 419, in the Annexures of the IGG's Report. 15 DearSb RE: HCCS NO. 84/1981 AIRIC CO-OPERA TT'IE SOCTETY LTD. V.A TTORNEY 10 & UGANDA BANK 20 25 30 We write with rcfercnce to lour letter rcf; l,{lAG/7 of I @ luly, I gg9, addrcsd to the Hon. Minister of Finance, to Hon. Minister of &-opiatiies and Marketfug and to Hon. Minister of Commerce and which was copid to ow clients M,/s A.frc @-oprative bciety Limitd. we accefi the tetms of reftIement contained therein and, on behalf of ourclients, we bg to enclow hercwith ten copies of the hnxnt/udgment for favour of yotir prasal and signaturc beforc we file it in @urt and circalate the same to aII - intercstd parties. We wish to take this oppfiunityto thar*you for the rcsoIveyou made to bring this case to a final rettlement acceptable to all parties. Yourc faithfitlly, ODIMBE AND COMPAIIY ADVOCATB (Signaturo) RICITAWA. O. ODIMBE' 67 on the 12th July 1989, M,/s odimbe wrote back to the Attorney General as follows: clhe Hon. Minisbr of Justie/Attomey Genetal, MinistryofJustice, PO. bx 7183, KAMPAI.A 35 5 This letter was also copied to all the 3 Ministers who had been addressed by the Attorney General's letter, as well as Afric Coop. This letter apryars at page 4ZO, in the Annexure to the IGG's Report. Four points worthy particularly worth of mention here. The first one is that Odimbe and Co. Advocates stated in unequivocal terms that ,,we accept the terms of settlement contained therein'1 Secondly, it is odimbe and co. Advocates who were representing Afric coop that drafted the consent JudS;ment. Thirdly, in line with the agreed terms to withdraw the suit, odimbe and Co. Advocates provided for both the Attorney General and UCB to sign on the final Consent Judgment as the co- defendants. Fourthly, examination of all the letters that immediately preceded the signing of the consent Judgment clearly shows that there was absolutely no mention about payment of balances and/ or interest in the frozen bank accounts right from Afric coop's letter of 4tt1 January 1 988 to the signing of the consent Judgment in H.C.C.S No. 84 of 1 981 by the AG, UCB and Afric Coop on I Tr,July 1 989. Based on all the above documents, I am convinced beyond doubt that the version of the consent Judgment which Afric coop sought to rely on, and which the learned Justices of Appeal based themselves on, to rule that Afric coop was entitled to Uganda Shs. 128, 825,004,,395/=,was forged in clause 5 to include the words ,bri blocked bank accounts, balances and motor vehicles.,, The letters I have cited clearly show that Afric Coop agreed to withdraw its claims against the Government and UCB in consideration of the Government paying them us $ 832,000 in kind, through the supply of coffee and tea. It is therefore my view that the interest that was referred to in the consent Judgment could only have referred to this amount and not other claims which Afric Coop had agreed to withdraw or those for which it may have reserved its right to constitute proceedings against the Government. If the parties had intended it otherwise, they would have expressly indicated so. 10 15 20 25 68 5 Indeed if, as Afric Coop contended, the interest on ,,blocked bank accounts, and balances" was included, the consent Judgment in my view only preserved their right to instihrte an action for interest on these items and not to claim interest as a matter of right pursuant to clause 5, as they contended before this Court. Another aspect that makes this contested clause 'bn blocked bank accounts, balances and motor vehicles" suspicious relates to the vagueness of its meaning. If indeed the parties ag;reed to pay interest on blocked accounts, what did the reference to balances mean? If it meant the balances in the frozen accoul'lts, why would have the parties used both terms when they were referring to the same thing? Ifon the other hand, balances referred to the outstandingbalance on the agreed sum of US $ 832!OO, what then did interest on vehicles mean? This is because the US $ 832,OOO was meant to cover the value of the vehicles that had been looted and again,there could not have been interest on both the cash balance representing the value of the vehicle and interest on the vehicle themselvesl Before I take leave of this ground, I also need to bring out two other factors that would dictate against the upholding of the award to Afric Coop of Uganda Shs. 128,825p04,395/= by the Court of Appeal. The first one is that Afric coop did rrot provide any bank statements or original documents such as banking slips or copies of bank drafts to confirm the existence of the bank accounts in question and the balances, if any that were held in those accounts at the time they were blocked. such evidence could have been of great assistance to the Court in evaluating the genuineness or otherwise of Afric coop,s claim. Instead, Afric Coop based its claims of interest on blocked bank accounts and balances on secondary documents which include the IGG's Report it had sought to quash; the computations from P. K. sengendo; computations made by junior officers 10 15 20 25 69 5 in the Ministry of finance and evidence by an Internal Loose Minute to the ps,/sr; letters from the President and/or officers based in the president's office, among others. With all due respect, this evidence cannot support the award of Uganda Shs. 128,825,004,395/= that was made by the Court of Appeal. contrary to Afric coop's contention I did not find an agteement on the Record of Appeal where the AG agreed to pay Afric Coop Uganda Shs. I28,825,004,595/ _. Any Ietters originating from the AG's office and/or the Ministry of Finance which created this impression were based on the false information and forged documentation that Afric coop had tendered to the Government in support of its claims. However, once the true facts came to light, through the IGG,s Report, among others, the AG communicated this position in the letter to the president which was cited earlier in thisJudgment, where he affirmatively confirmed that he was unable to advise the Government to pay Afric Coop,s claims. subsequently, the AG maintained his position in his pleadings filed in defence of Afric Coop's Judicial Review Application as well as in the submissions made therein. The AG also jointly defended with the IGG Afric Coop,s appeal to the Court of Appeal and was a co-appellant with the IGG against the court of Appeal's decision. Nowhcre in its subrtrissions did the AG ever aver that the IGG had made it impossiblc for hinr to fulfill his constitutional duty of rcndering advice to the Governr.ncnt of Llganda. contrary to the clainrs made by Afric Coop, the true relationship between thc AG and IGG was well stated by Mwangusha, J. (as he then was) as follows: KMyuiewon thismatteris that the ?d Respndent IAGJ des not work in isolation. The Insry'brate of Govenment is an investigative arm of the state whox rcpds mayormaynot be taken into awunt ihen the ?d Rcspndent is canyhg out his constitutional mandate of aduisirry the Government on Iegal matterc. what the ?d Respndent dies on to canyout his constitutional mandate is entircIy his percgatiue and all I can uy is that if dwing the negotiations btwen the applicant and the ?d Rcspndent the ld Respndent 10 15 20 25 70 5 10 15 20 25 In their instructions, the Ministry of Finance also clearly stated that if Afric coop was not ready to accept this offer, they should go to court. As the Record of Appeal clearly shows, Afric coop chose to go to court seeking for payment of Uganda shs. 68,347,550,547/=. When they lost at the High Court, Afric Coop filed Civil Appeal No. 66 of 2oo 1 in the court of Appeal where they were ordered to pay taxed Costs at the High Court and additional Security for Costs of Uganda Shs. 890,777,005/ =. Afric Coop failed to pay the costs and instead changed course by bringing an application of Judicial Review, which gave rise to this second appeal The second one is that Afric Coop failed to rebut the overwhelming credible evidence on the record to the effect that there was no money in their accounts at the time the accounts were frozen. This evidence was brought out in the letter written by Afric Coop's bankers, the now defunct UCB, on 14rh November I g8O, which read as follows: Hon. Minister of Finance, Minisbltof Finance P.O. tux8147, 77 IIGG] dcttrtd a fraud' the ltt Rcspndent was duty fuund b pint it out and it-was up to the ?a Respndent to rcIyor not to rclyon it As it is auotding to the Attomey Genetal's letter to His Excellency the hesident of the Republ{c of Uganda ... the Attorney General chore to rcIyon it for ru.nns clearlysplt out in the lelter and as I have alrcady statd that was entircIy h* percgative. AII ! can say is that hautug ttceiud a rcprt with allegations ot tiryery, Iraud and uttering falre dooaments I do not w how the F Respndent would have gone ahead b barry out his constitutiottal maadate, and twommend p;rment.D Similarly, the award nrade to Afric Coop cannot be based on any agreements or admissions of their claims by the Ministry of t'inance or the secretary to the Treasury. The Record of Appeal clearly shows that the Ministry of finance, after evaluating Afric Coop's claims to Llnited states Dollars ll 1 ,oll I ,4 I o. s6, rejected this clainr and on 2 I s october I 999, instructed the ACi to offer Afric Coop a payrnent of Llganda Shs. 110,773,998.74/ - only. 30 5 Iknpala Dear54 RE: M,/s and Travel We hopeyou wiII apptwiateowpsition andaduiceand allowthe lawto take ib cource. Youn faithfiilly, NchadKkijul@ MANACING DIRECTOR 10 15 20 )< 35 40 Thankyou foryout,Iefterref: EC/I/46 VoI. I dated IZh Novemfur IgB, which has just ben tweivd and in which you arv dirwting this Bank to defiwze the accounb of the aboue sooiety We would like to clarify that whatever balance mayfu rcllected on the ftozen accounb is technically "imaginaty'fuaure they came abut as a rcsult of hqubq b@n edid with cheques and drafts issud byBank of Batda which cheques have not boen honowed by that Bank It has fun explaind that beforc this Bank lorcw of the dishonor of the abve cheques and drafrs a totat of mote than shs. 45 million was paid out by this Bank and therc is a pnding suit No. 65 I of I 98O against Bank of Batda which is yet to fu heafi- and detemind W the High Court. If the fate of thore drahs and chques is determined, therc is no moneyin the fuks of the Bank to which the above WieU ?an lay any claim and it is our hwnble uiew that unle,ss lou dittct Bankof Batda to honow the cheques and drafts, out of which-the above wietygot its imaginary balances, aII the patties connected with this matter should wait until the abve sait is adjudicatd upn. We als wish to pint out that when we apptwchd your offie and that of the Hon. Minister ofJustice,/Attorney General it was ho@ that your two offices would arbitrate in the matter outside the &w,ts as b rcabh an arnicable settlement which would eliminate unntreswql costs that go with litigation and auoid subsequent rcprcussions on the bankfug inausty in this m-unfr1r like underminhg confidence in the commercial banks on tni patt of the general public. It was, howeuer, understd that this foing a contistabte matter eyery party to it had errery right to rcnrt to court ptwedings which we have nowrcsortd to. 72 30 5 In conclusion of this ground, I therefore find that the learned Justices of Appeal erred in law and fact when they awarded Afric Coop Uganda Shs. 128,825,004,395/=, when it had not been proved. I would accordingly allow ground 3 of appeal. Ground 4 of Avoeal Ground of Appeal was framed as follows: PThe leamdtustices of the courtof Appal end in tawand fact in awardittg the Respndent intercst on the said sum at 25% pr annwn ftom 2oo6 until payment in frtll.' without prejudice to submissions in Ground s above, counsel for the AG and IGG submitted that the interest awarded by the Court of Appeal which was accruing at the rale Uganda Shs. 88,236,1t04/ = Wr day was inordinately high, excessive, exorbitant and therefore unconscionable. Relying on this Court's decision in AKPM Lutaaya v. Attonq General, Suprcme @urt civil Ap$al I6 of 2oo7,, where this court reduced an award of interest from 77o/o to 8o/o per annunl on grounds that no interest hadbeen specifically pleadedby the appellant, the AG and IGG also faulted the court of Appeal for awarding a rate of interest thalhad not been specifically pleaded and prayed for. The AG and IGG further submitted that in the High court and court of Appeal, Afric Coop had prayed for interest'(as computed by a competent entity,, and (,interest at 2oo/o fuom July 2006", respectively. The AG and IGG faulted the court of Appeal for not stating the basis on which it awarded such interest and for not stating the specific date in 2006 when the above interest would be calculated from. Lastly, the 10 15 20 25 The AG and IGG further submitted that this award amounted to Afric coop being unjustifiably enriched through litigation. 5 Before I leave this 2ground however, I believe it is important to comment briefly on the rate of interest that court awarded. I agree with Afric coop's submission that the court of Appeal had discretion to award interest and secondly, that the court had the right to rely on section 26 of the civil procedure Act to award interest. I further note that the court is not duty bound to award the rate of interest. However, it was unwise, in my view, for the court to exceed the interest prayed for by Afric Coop. If the Society, as a party has assessed its loss for which the Court should award it to put it in the position it would have been in, the court should not have gone beyond the pleadings ofAfric coop to make an onerous award of interest at a rate they had not sought. The proper way would have been for the Court, taking into account all the circumstances of the case, the pleadings and the demands for justice to be done to all parties, to make a propil assessment and ideally, to give its reasons and basis for doingi so or for declining to make any such award. This would assist an appellate court to evaluate the lower court's decisions based on the available information in the Judgment, as opposed to leaving the mafter open to speculation. In this particular appeal under consideration, the court was making an award of interest against the Government of uganda, which was tantanlount to an order being made against the people of lJganda. However, the award was supposed to be compensating Afric coop for the balances in frozen accounts and interest accrued since 1978. Yet the evidence on the Record of Appeal clearly showed that while the Government had issued freezing orders with respect to Afric coop,s Accounts, there were serious questions whether Afric Coop had any balances they claimed. In addition, there was also evidence that the Government had issued a de-freezing order in 1986 but that UCB had declined to defreeze Afric coop's accounts for the reasons that Afric coop did not have any credit balances in its bank accounts at the time the accounts were blocked in 198o. Afric coop had the right to sue ucB at 10 15 20 25 75 5 that time, but they diil not do so. Instead of doing that, they agreed to withdraw their civil suit against ucB as part of the terms of the consentJudgment they signed with the AG and UCB in 1989. Later on, after a lapse of more than I I years, Afric coop decided to hold the Government of uganda responsible for the real or claimed losses arising out of the blocking/freezing of their bank accounts. As Okumu WengiJ. (as he then was) rightly observed in Afric C;mpratiue fuiety Ltd v. Attomey C,enual, HCCS No, 167 of 2O0O, "...a suit against the Attomey General of Uganda ought to have been bought manyry$ ago...It did not ned to take the accomplishd plaintiffeleven yearc to spin and weave such a complex, if not giddy, gooey claim., ln view of my analysis of the parties' submissions, I therefore find that the learned Justices of Appeal erred in law and fact when they awarded Afric coop interest at 25o/o per annum from 20O6 until payment in full. I would allow ground 4 to succeed. 1s Ground 5and 6of APPeal 10 20 Ground 5 of appeal was framed as follows: erhe leandJustices of the @urtof Appeal end in lawand fact in not exercisittg their dircrction poprly and or judicioudy' On the other hand, Ground 6 also provided as follows: *The leamedJusticcs of the courtof Appal end in lawand factwhen theyfaild to subjxt the euidence on twtd to exhaustive rcrutiny thus ooming b a wrorg anclusion' The AG and IGG submitted in support of ground 5 of appeal that while the remedies sought under Judicial Review were discretionary in naturez the court of Appeal in 2s granting the discretionary remedies had ignored all the eviden ce of fraud and forgery. The AG and IGG listed this evidence as being the existence of two Consent Judgments as well as evidence of forensic analysis that establishe d that had 76 7 5 established that the Consent Judgment subscquently tendered by Afric Coop to pursue their claims for blocked bank accounts and balances which appears at page 72 of the Record of Appeal, was a forgery. Relying on this Court's decision in IlIakula Inbnational Ld v. His Erninene Cadinal Nsubuga & Another (I gB2) HCB 19in support of their submission, the AG and IGG ar2;ued that this illegality overrode everything once brought to the attention of the Court. The AG and IGG further submitted that the Court of Appeal also overlooked the previous suits between Afric Coop and the AG which rendered the matter before it incompetent and res judicata. Submitting on Ground 6 of appeal, the AG and IGG contended that the Couft of Appeal was not alive to the various aspects of the case which included the existence of a second Consent Judgment; the existence of a forensic report showing the Judgment before court was a forgery and fraud which was clearly spelt out at page 69 of the Record of Appeal; the existence of the Report of the IGG datedluly ZOO4 and which was clearly referred to on page 62 ofthe Record of Appeal;the decision of Okumu Wengi, J. which cited at page 68 of the Record of Appeal; the Affidavit of Sheila Ampeire Lwamafa which appears at page 76 of the Record of Appeal atrd other various Misc. Applications and Causes which had been dismissed by the High Court cited at page 77 of the Record of Appeal. The AG and IGG further submitted thatby not considering the above evidence, the Court of Appeal clearly did not exhaustively scrutinize the evidence already on record. In reply, counsel for Afric Coop adopted his submissions on Ground I of appeal and contended that there was no evidence of the existence of two Consent Judgments as 10 15 20 77 The AG and IGG submitted that this Court had permittecl them to elucidate the eyidence abeady on record with the full Report of the IGG datedJuly 2004. Lastly, the AG and IGG submitted that Afric Coop was under receivership and as such it zs could not sue or be sued. 5 alleged by the AG and IGG. Counsel also submitted that the AG and IGG in raising this issue at this stage were indirectly seeking this Court to admit additional evidence on Appeal contrary to Rule 29(1) of the Supreme Court Rules. He called on this court to ignore the AG and IGG veiled attempts to bring new evidence in this court. Counsel for Afric Coop also argued that IVtakula International (supra) was not applicable to this appeal, because the alleged illegality had not been proved by the AG and IGG. He argued that a Court of law could not rely on evidence that was merely alluded to. counsel for Afric coop concluded by calling on this court to find that the Justices of Appeal properly and judiciously exercised their discretion. In reply to the subnrissions of the AG and IGG on Ground 6 of Appeal, counsel for Afric Coop submitted that the Court of Appeal scrutinized the evidence on the record and came to the right conclusion. Counsel contended that a court undertaking Judicial Review was concerned with procedural irregularities, legality and whether the rules of nafural justice were complied with. counsel further contended that the duty of the court of Appeal, sitting in a matter that originated as a matter of judicial review could not be different either. Re solution of Grounds 5 and 6 of Aooeal In my discussion on the first 4 grounds of appeal, I pointed out many areas where the learned Justices of Appe al farled, in my view to properly address themselves to the law and facts surrounding this appeal. I do not therefore intend to discuss 10 15 25 78 Responding to the submissions of the AG and IGG on receivership, counsel for Afric submitted that their client had attached a letter to the Affidavit of Julius M. Kiirya that proved that Afric Coop was not under receivership and that the alleged Receiver 20 was a nlere Debt Collector for Greenland Bank. Counsel further submitted that the issue of receivership was not raised in issue in the lower Courts and that raising it now was tantamount to admitting new matters in the Supreme Court. 5 Srounds 5 and 6'of appeal in great detail. suffice it to say that in almost all aspects of the Court's Ruling, there were flaws that could have been avoided. For example, in disposing of the issue of whether the IGG was stopped by section 1g of the IGG Act to investigate a forSled consent Judgment, the Court of Appeal ruled in favour of Afric Coop on grounds that Afric Coop's claims were matters still pending in H.C.C.S No.84 of 198I. Similarly, with respect to ground 2 of Appeal, the Court of Appeal proceeded to quash the impugned Report of the IGG and hold that the Report was qroid and of no consequence', when it had not had an opportunity to study the Report to confirm Afric Coop's claims that they had not been given a hearing. As it turned out, when the Report was eventually put on the Record of Appeal,Afric Coop,s claims were unfounded because they had been actually 5;iven a hearing during the course of the IGG's investigations. Turning to the submissions of the AG and IGG, a readingof Judgment of the Court does not show how the learned Justices of Appe al arrivcd at their decision to award Afric Coop such a huge amount of money, when there was no clear evidence to show that such a sum was awarded under the 1989 consent Judgment or that it had even been agreed upon by the AG or Minister of Finance or the ps/ST, on behalf of the Govemment. For the reasons I have given in the foregoing discussion, I therefore find that that the learned Justices of the court of Appe al erred in law and fact when they failed to subject the evidence on record to exhaustive scrutiny, ',r.hich resulted in their reaching wrong conclusion with respect to the validity of Afric Coop,s claims. 10 15 20 25 79 Furthermore, I also find that the learned Justices of the Court of Appeal erred in law and fact when they failed to exercise their discretion properly and judiciously in quashing the IGG's Report on the alleged failure to give Afric Coop a hearingl in finding that the IGG had no power to investigate forged consent judgments and in 10 15 awarding Afric Coop a sum of money and interest which had neithcr been agreed upon with Government nor for which they were entitled to under the Consent Judgment thathad been reached between the Attorney'General and Afric Coop. I am convinced that there is merit in both grounds 5 and 6 of Appeal. I would accordingly allow both grounds. Conclusion My consideration of all the grounds of appeal has led me to conclude that this appeal should succeed. I will only say the following in conclusion. First, that Afric Coop's claim and the award of lJganda Shs. l28,82S,OO4,5g6/= with 25o/o interest that was made by the r-^ourt of Appeal cannot stand. As I found earlier, the issue of interest on blocked bank accounts, balances and vehicles was never part of the I 989 Consent Judgment. I would also add that my position would remain the same, even if I had found that the IGG had acted in contravention of section l9 of the IGG Act in undertakinSi Afric Coop,s claims against the Government of Uganda. In my view, Afric Coop, by filing a judicial review applicatton to quash the IGG,s Report, was seeking to use a short cut to secure an award that the Government had contested and rightly refused to settle out of Court. If indeed Afric Coop was convinced about its claims and contention that its claims were grounded in the 1g8g 20 ConsentJudgment it had reached with the Government, the best recourse available to the Society would have been to prosecute its appeal (Civil Appeal No. 66 of ZO0l) at the court of Appeal. It could have achieved this by laking the essential step of depositing security for costs as directed by the Court of Appeal. In the alternative it could have sought for a reference in the Court of Appeal to have the Order set aside 2s or sought leave to prosecute its appeal without providing security for costs. However Afric Coop did neither. 80 7 5 With due respe.i to the learned Justices of Appeal, I find that they erred in law when they gave contradictory Orders, which awarded Afric Coop Uganda Shs. 128,825,004,i195/=, when the same Court had an in earlier application ordered that Civil Appeal No. 66 of 2001 which was on the same subject matterT should not proceed until Afric Coop had paidLlganda Shs. 890,177,005/= in Court before the Court could determine its appeal. This Court in Cdrnan Ngencies Ld u. Attorney General & Another, @nstitutional Application No. I of 2OI2 struck out an appeal over failure to provide security for costs. Afric Coop's appeal to the Court of Appeal deserved to suffer the same fate since the Order for payment of taxed and further security tbr costs had not been set aside. Costs The AG and IGG, as well as Afric Coop, respectively prayed for costs to be awarded to them, in the event that they were successful._Although this is a case where it would have been appropriate to order Afric Coop to pay the AG and IGG's costs of in this Appeal and the Courts below, I note from the Record of Appeal that the dispute between the parties has dragged on in the courts for a considerable while. It would therefore be proper and serve the interests ofjustice better, to order that Afric Coop pay the taxed costs in the High Court which they had already been ordered to pay by the High Court trial Judge and that each party meet their own costs in this Court, the Court of Appe al and in the Judicial Review application. I would therefore allow this appeal and set aside the decision and all the orders of the Court of Appeal. for the reasons I have already given in this judgment, I would also order that each party will bear their respective costs in this Court and in the Courts below. In the result of a majority decision of four members to one, this appeal is hereby allowed on the following terms: 10 15 20 25 81 ) IIr,rt tlrt',.lt'. isirrrt .rlrd .rll tllc t)l(lLls ()l lltt'L'trttt't trl r\Ppt.tl'lr'( ll('ltIJv scl .tsiclt'. I'hal cae [r p.trty will lrear thcir ou'n costs itt tltis cotrrl attcl irt litt L'()tlrts lre l(1\\ (2t DATED'dt Rampalathis J. 3. oc+ 2015 day of ION. DR. ESTHER KISAAKYE,JSC ISTICE OT'THE STJPR},MI COI.JRT. 10 I Jr. 82 44 'bt /,^z,.l^*<" ,l rta-\ n C$rrrl da c) fot qa h,4^rfr g I 1 2 THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA (CORAM: KISAAKYE, JJ.SC; ODOK!, TSEKOOKO, OKELLO, AND KTTUMBA AG. JJ.SC) CIVIL APPEAL NO. 05 OF 2012 AND AFRIC CO-OPERATIVE SOCIETY LTD : : : : : : : : : : : : : : : : RESPONDENT JUDGMENT OF DR ODOKIAG JSC I have had the advantage of reading in draft the judgment prepared by my learned sister Dr. Kisaakye, JSC and I agree with her that this ap /tt p tp eal sho-uld succeed. I concur in the orders she has 6fu propos w"& "frs,p,nt 4] r^1 (2"!,f Ltu .h Dated at Ka this 2015 tt^ ru- '{ezu-t 1€ ))- 0,4;JA PrI"{) mP€la I /L1,4 ^*htr,( olM,t Dr B J Odoki AG JUSTICE OF THE SUPREME COURT au q,( LrLl 5^ l't*,!d\{ BETWEEN ATTORNEY GENERAL INSPECTOR GENERAL OF ::::::::::]:::::::::: APPELLANTS GOVERNMENT [Appeal from the judgment of the Court of Appeal (Bahigeine, DCJ, Kavuma, and Nshimye, JJ.A) dated 25th June 2012 in Civil Appeal No. 132 of 20111 THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT I(AMPALA (Corann: Dr. E. Kisrrakge,.fSC; Odokt; Tsekooko; Okello and Kidtmba; Ag..trJSC) CryIL APPEAL NO. 05 OF 2OI2 BETWEEN 1. ATTORNEY GENERAL 2. INSPECTORATE GENERAL OF GOVERNMENT ..APPELLANTS AND RESPONDENT Appeal from the decision of the Court of Appeal at Kampala (Mpagi- )Bahigeine, DCJ; Kauuma and Nshimge, JJA) dated 2SthJune 2012 ' in Ciuit Appeal No. 1 32 of 201 1 JUDGMENT OF OKELLO. AG. JSC I have had the benelit of reading in draft the judgment of my learned sister, Justice Dr. E. Kisaalqre, JSC, and I agree with her that the appeal must succeed. I also agree with the orders she has proposed. Dated at Kampala this....J !,,.dav o{ G.M. OKELLO AG. JUSTICE OF THE SUPREME COURT I AFRIC CO-OPERATIVE SOCIETY LTD.. ocJ 2015 ) THE REPUBUC OF UGANDA IN THE SUPREME COURT OF UGANDA AT I(AMPAIA D. Kisaalqre, JSC.; Dr. Odoki, Tsekool<o, Okello & Kitumba, Ag. JJSC.) {Coram: l5 Between r. ATTORNEYGENERAL 1 z. INSPECTOR GENERAL OF C,O\ERNENI] APPELI.A,NTS Perusal of the record of appeal shows that the Attomey General (present first appellano representing the Uganda Govemment agreed to the payment of Shs. l2g, 825,004, 3951= to the respondent, Afric cooperative society (U) Ltd. as part of the settlement of the case. This is why that figure appears in the joint Judement of J.W.N. Ts€kooko, AS.JSC.T l5 I have had the benefit ofreading in draft the judgment prePared bY mY leamed sister, the Hon. Lady Justice Dr. E. Kisaakye, JSC. Unfornrnately I received the same judgment rather belatedly so I did not have the necessary time to write a reasoned judgment. 30 The facts of the case appear in my leamed sister's judgment. However, with great respect I do not agree with her conclusions of allowing the whole appeal. l5 Ps. lotJ I G,ilAtryntl No 05 of2012. t0 20 And AFRIC COOPERATn/E SOCIETY UID. ffRESPONDENT {.Ltt al4tcal littttt tlr.iultntn'ut ttl tlrc (lnut ot'.414x'a} al Kattrynla (Mtnsi-llaltisLin' D(.)J, ',ru! ki rrrr,, & h'sttin.tc.lJ.4.) dat*l 2f".hutc, 2012 in ('iil 'Autal Nrt' l"l2 ril 201 l'J .o'nferencing notes of the parties dated l6n February, 2012 which notes appear at page 137 ofthe Record ofAppeal. These conferencing notes were agreed upon by counsel for both sides before the same counsel signed ttre notes on 1610212012 in the court of Appeal. The figure had been generated by an auditor who while the suit was in the High Court was asked by the Govemment to establish payable damagfthrough the audit work' The Auditor's figure was thus accepted by the Govemment which accepted to pay by signing the consent judgment through the Attomey General' It is common knowledge that before the hearing of appeals in the court of Appeal, parties always hold a pre-hearing conference before a Judicial Officer (normally a Registar) of the Court of Appeal during which the parties agree on the issues to be considered and decided by the Court when hearing the appeal- This is what happened in respect ofthe appeal giving rise to the present appeal. Subsequently, the Court of Appeal heard and determined the four issues framed by the parties for the Court of Appeal decision' I believe that a Court of law should not be used as an engine of fiaud. But the facts of this case clearly show the reasons why the Govemment is liable. The Court of Appeal ordered the Govemment to pay the amount to the respondent on clear grounds. I am not satisfied that there is a satisfactory basis disentitling the appellant from being paid the money. On the facts of this case it is my considered opinion that if there was iuly suspicion of fraud, there should be a full trial by a competent Court to establish the fraud. Otherwise, it would be cont"ry to all ideas ofjustice to deny the appellant the money in the way my leamed sister has ProPosed. 5 l0 l5 20 25 Pg. 2 ofJ , I a t I lt For the foregoing reason, I would allow the appeal with costs to the appellant here and in the courts below. Deliverctl I{ampala thifr.-.. day ofOctober, 2015. Tsekooko, of the Supreme Court. I 5 .t.w Ps.3 ofJ Y t I , I t , ) T ) I THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA CORAM: KISAAKYE, JJ.S.C ODOKL TSEKOOKO, OKELLO, KITUMBA, AG. tJ.s.c. CIVIL APPEAL NO.Os OF 2012 BETWEEN 1. ATTORNEYGENERAL 2. INSPECTOR GENERAL OF GOVERNMENT APPELLANTS AND AFRIC CO-OPERATIVE SOCIETY LTD::::::::::::::::r::::::::::i:::::RESPONDENT [Appeal from the judgment of the Court of Appeal (Bahigeine DCl, KavumaandNshinye JJ.A) datedeflh June 9019 in CivilAppeal .No.tsg ofsolt J I have had the benefit of reading in draft the judgment of my learned sister Dr. Kisaakye JSC. I concur with her judgment and the orders proposed therein. Dated at Kampala, this ay of .....o.c:Ia w C^{6 f&L.'.L^ C.N.B. KITUMBA AG. JUSTICE OF THE SUPREME COURT 1 { l JUDGMENT OF KITUMBA, AG. JSC 2015.