Judiciary big wigs split over case allocation

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Justice Mubiru claims there are ‘currents burbling below the radar’ seeking to usurp his powers and influence the reallocation of a case, which goes against the grain of established procedures. 
 He accuses the Chinese firm of ‘forum shopping’, a colloquial term for the practice of litigants seeking to appear before a judge who could grant a favourable judgment. 

The law firm representing the Chinese construction firm had demanded that Justice Mubiru recuses himself from the execution proceedings as a result of bias, an accusation he rejected. 
Mr Kyabahwa is represented by Crane Associated Advocates while CHICO is represented by Lawgic Advocates.

This dispute arose after September 16, 2018, when CHICO contracted Mr Kyabahwa to provide consultancy services, at a fee of $2,200,000 (about Shs8.1 billion) for the construction of the Rukungiri-Kihihi-Ishasha/ Kanungu Road measuring 78.5 kilometres. This project was co-funded by the African Development Bank (ADB) and the government of Uganda.

The parties agreed that this money would be given to Mr Kyabahwa from the initial installment paid to the company by Uganda National Roads Authority (UNRA). 

In December 2018, the Chinese firm received an advance payment from UNRA but did not notify Mr Kyabahwa nor pay his contract sum as they had agreed. 

Upon learning of the payment, the consultant contacted the Chinese firm and the parties executed a deed of variation on January 14, 2019 reducing the contract sum from $2,200,000 (Shs8.1 billion) to $1,300,000 (Shs4.8 billion). 

The reduction was based on the presumption that the ADB had cancelled the loan for financing the road project, compelling the company to renegotiate with UNRA. The consultant later discovered that the reports that the ADB had pulled the plug on financing the construction, were untrue.

Mr Kyabahwa sued the Chinese firm for breach of the consultancy agreement and sought a declaration that the deed of variation concluded between the parties was anchored on fraudulent misrepresentation and was therefore void. He claimed compensation of 
$900,000 and general damages. 

On March 19, 2021, High Court Judge Duncan Gaswaga decided in favour of Mr Kyabahwa, holding that the Chinese firm breached the parties’ consultancy agreement when it refused to pay the businessman the balance of the consultancy fees and that the deed of variation was illegal. 

The Judge awarded Kyabahwa $900,000 (Shs3.3 billion) as the outstanding balance on the contract and general damages of $450,000 (Shs1.7 billion) for breach of contract and inconvenience. The Chinese firm was dissatisfied with this decision of the High Court and filed an appeal, which is yet to be determined by the Court of Appeal.

On June 30, 2022, the Chinese firm filed an application for stay of execution of the orders of the High Court pending the hearing and determination of its appeal fearing that Mr Kyabahwa would attach its bank account that receives project funds thereby stalling the government project of completing the road, a major artery that snakes across the terraced hills of south-western Uganda. 

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The application was supported by an affidavit of Mr Zhang Jianwein, the company’s country manager who revealed that by the time of filing the application for stay of execution, Mr Kyabahwa had already obtained $950,000 (Shs3.5 billion) through garnishee proceedings and sought to get another $400,000 (Shs1.4 billion).

Garnishment is a legal process where part of the income or property of someone who owes a debt is given to a court in order to pay a debt.

But the consultant says this application had earlier on been dismissed by the ruling of High Court Judge, Justice Duncan Gaswaga, on April 9, 2021 at the Court of Appeal constituted by a coram of Justices Cheborion Barishaki, Stephen Musota and Christopher Madrama on  June 10, 2021 and at the Supreme Court on  June 22, 2021 by Justice Stella Arach-Amako, rulings, which Monitor has seen. 

Through his lawyers, the consultant accuses the Principal Judge of interfering with the execution orders of the High Court.

Monitor has seen an August 17, 2022 letter by  Mr Kyabahwa which reads, “Although I have complained to the Principal Judge and the Chief Justice about the former’s conduct, and also physically met with the Chief Justice to lay bare my complaints and reservations about unfair treatment by the Principal Judge, no attempts have been taken to demonstrate to me that I shall ever get justice from the Principal Judge.” The Chief Justice and Principal Judge were copied in the letter. 

Counter accusations
Mr Kyabahwa says that while the case was allocated to Justice Mubiru, who refused to recuse himself from the matter in his ruling dated July 12, 2022, the Principal Judge nonetheless called for the file, heard the application and determined the case in favour of the Chinese firm. 

Justice Mubiru has rejected allegations of bias made against him by lawyers of the Chinese contractor. 

The Uganda Code of Judicial Conduct provides that a Judicial Officer should refrain from participating in any proceedings in which his or her impartiality might reasonably be questioned.

Jolted by these accusations, Justice Mubiru makes an impassioned defence against accusations of bias after he was assigned the execution proceedings through an electronic system. 

The   establishment of the electronic system is one of the major guardrails and reforms that have been undertaken in the administration of justice by the Judiciary of Uganda to espouse transparency in the dispensation of justice.

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The Judiciary rolled out the Electronic Court Case Management Information System (ECCMIS) in   selected   courts   mainly   in   Kampala   and   surrounding areas in 2022.  It is a digital system that   automates   and   tracks aspects of a court case life cycle, which has dealt away with the paper roster case administration system. 

Reading from different scripts
Justice Mubiru on the contrary accuses the Chinese firm’s lawyers of forum shopping as a result of ‘off-record, subterranean currents that are apparently driving the allocation decisions relating to this file, which goes against established processes.’

Commenting about the accusation of bias in an ex-tempore ruling he delivered on November 9, 2022 Justice Mubiru wrote, “Whatever the specific reason, the goal of forum shopping is always the same; to gain a perceived or actual advantage in litigation by benefitting from differences in judicial tendencies of the judges with potential jurisdiction over the litigation. Parties should not seek to manipulate the allocation of a case to a judge before whom they perceive their client might gain some advantage or begin with the odds in their favour.”

Justice Mubiru added: “There is no basis upon which a reasonable, disinterested, fair minded and well-informed observer having considered the facts, would conclude there is a real possibility that I was biased in those proceedings or that I may be biased in the current proceedings before me. That suspicion is an entirely unfounded and speculative proposition.”

Monitor contacted the Chief Justice and Principal Judge on January 19 and January 23 respectively to hear their views on the dispute. The request for comment was officially received by the two respective offices. However, by the time of publishing this story, they were yet to comment. 

The Judiciary spokesperson, Mr Jameson Karemani, told this publication that the Chief Justice and the Principal judge among others have supervisory powers over judicial officers and the administration of Justice, which are laid out in the Constitution and other enabling laws. 

“We have what we call supervisory authorities. If it’s a Magistrates court, we have the Chief Magistrate who supervises the judicial officers within that locality, so if there are issues to do with a file moving from one judicial officer to another, the Chief Magistrate will handle that situation,’’ he said.

Mr Karemani added: ‘‘If a file is in the higher court, the Principal Judge who is the head of the High Court still has supervisory powers over judges, so in some situations, we have seen files being re-allocated by the Principal Judge, in some cases because he is also a judge, he takes lead and he takes over the management of those files. He has supervisory and judicial powers.

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Supervisory powers are administrative for the reallocation of any file, and these supervisory powers have no limit.”

Retired Principal Judge, Justice James Ogoola, says he may not be well-versed with the current situation about the allocation of files at the Judiciary. “I have no information. I don’t know what is happening there.”

However, Justice Ogoola says during his tenure, there was a desire to embrace digital technology. “I remember one big incident and that was we had a judge who gave a date to the parties to come back, he said come back, file your documents by march 10th. And the lawyers did their best to do that, one of them did not quite do it and they came back,  went through the back door, engaged the clerks and the document that came on the 11th or 12th now appeared in court as having the date of 10th and the other side of course complained and that led from one thing to another meaning that the human intervention in the processes of court can be compromised..”

Justice Ogoola added: ‘‘And so, we found a way even as early as that to digitalize these things so that whenever documents came in you stamped it and that was forever. I am very glad that we have started a journey to go digital and that helps a great deal. It has its own challenges, training everybody to be in harmony, but overall I think it’s in the right direction.”

Mr Peter Mulira, a lawyer backs the electronic system and implores judges to have the audacity to reject orders. “Because if you order me to do the wrong thing, I am not obliged to carry it out. If the Chief Justice told me that Mr Mulira that file was allocated to you electronically but give it to Mr Musoke, I can refuse. But I know the practice is rampant and I have a personal experience and it’s going to cause a lot of problems for this country. 

He revealed further, “You know there was a complaint that all the cases with big money used to go to particular judges, so the complaint was coming from judges themselves, so I support the idea and we have to know that technology is the way to go.”

There is no evidence that improper conduct has been proven in this particular case. 
However, the exponents of this intervention, argue that the electronic system has its flaws, which can be cured by the supervision of the Chief Justice and Principal Judge through the allocation of files, among other roles.

Mr Karemani said: “So, when he [Chief Justice] has issues, which have been brought to his attention, all these administrators; the Principal Judge, the Deputy Chief Justice, the Chief Registrar, the Chief Magistrate, all those are there to help him in the administration of the courts’.’

“So, if he has an issue in courts, he will now ask the Principal Judge to take over the issue and manage. Now it will depend on how the Principal Judge perceives it, he can either take over the file himself and handle it or he can allocate it to another judge. The Deputy chief Justice also helps him to manage the Court of Appeal/Constitutional Court. So, when there are issues there, he will also liaise with the Deputy Chief Justice on how those issues should be managed,” argued Mr Karemani.

For instance, the Principal Judge in 2020 blocked the payment of Shs120 billion to businessman Hamis Kiggundu, pending an appeal by Diamond Trust Bank Ltd. This came after Justice Henry Peter Adonyo of the Commercial Court ruled that the businessman should receive a refund for the sum from the bank.

In May 2021, the Court of Appeal rescinded the judgment. Three Justices led by Justice Richard Buteera- the Deputy Chief Justice declared that Justice Adonyo erred when he dismissed the Shs120 billion case in favour of Mr Kiggundu.

Under these supervisory powers, on December 1, 2021, Justice Owiny-Dollo instructed Justice Mubiru to handover the file regarding the Kyabahwa-Chinese firm case to the Principal Judge.

“This is to bring to your attention the fact that the Hon Principal judge is retaining the said file and all applications arising therefrom, on my express directive to him to do so. He will continue to have possession of the file and take charge thereof until all matters pertaining to, and or related thereto, at the High Court level is duly concluded.”

This prompted the Principal Judge to write to Justice Mubiru in a letter July 11, 2022 letter, instructing him to forward the file to him for further management in compliance with the Chief Justice’s directive. 

Justice Mubiru reluctantly handed over the file to the Principal Judge and wrote, “Despite the oddity of the directives, which in my humble opinion not only contradict the established processes of allocation, re-allocation and transfer of cases in this court, since we migrated to ECCMIS, but also the procedures outlined by the Constitution (Recusal of Judicial Officers) Practice Directions 2019, I am constrained to heed the administrative instructions and hereby submit the file to the office of the Principal Judge for further management. The parties shall be advised by that office as regards the next steps. It is so ordered.”

In his application on the matter delivered on October 31, 2022, Principal Judge Zeija, dismissed the preliminary objection premised on the fact that the matter of stay of execution had already been determined till the highest appellate court in favour of Mr Kyabahwa.

Mr Zeija decided the application in favour of the Chinese firm and ordered stay of execution of the orders of the High Court until the final determination of the company’s appeal at the Court of the Appeal.  

Different viewpoints
In his ruling, the Principal Judge accused Mr Kyabahwa of dishonestly recovering more money than he was owed. The Principal Judge reasoned that in situations where money is advanced to the contractor in stages, one risks attaching funds earmarked for a particular stage of the project against the legal doctrine of “common good.” 

Mr Kyabahwa on the contrary said the application for stay, which was heard and determined by the Principal Judge was res judicata in so far as it had already been heard and dismissed by the High Court, the Court of Appeal and the Supreme Court.

The principle of res judicata provided in Section 7 of the Civil Procedure Act bars parties to a suit from litigating the same dispute again, once a final judgment has been rendered by a competent court clothed with jurisdiction.

The record also contains a June 16, 2021 letter by the Principal Judge to Justice Mubiru. In the letter, Mr Zeija faults Justice Mubiru for issuing an order dated June 15, 2021 granting a Certificate of Urgency for hearing of Mr Kyabahwa’s application for execution, ‘contrary to the Chief Justice’s directives contained in a circular issued on June 7, 2021, which had earlier on suspended all execution proceedings for a period of 42 days.’

Mr Zeija added: “The Honourable Chief Justice has brought to my attention the above-mentioned order and the impending execution proceedings and processes... Therefore, the purpose of this letter is to bring to your attention paragraph 6 of the said enclosed circular, which expressly suspended all execution proceedings and processes for a period of 42 days.”

Justice Mubiru responded to this concern in a June 17, 2021 letter.
He argued that his decision was based on his interpretation of the June 7, 2021 Administrative Circular of the Chief Justice relating to the Revised Contingency measures for the prevention and mitigation of the COVID-19 pandemic.

“Whereas clause 5 suspends all court hearings and appearances, and clause 6 suspends all execution proceedings and processes, clause 7, makes an exception for only urgent matters. It is my humble view that urgent matters are not limited to hearings and appearances but also include execution proceedings and processes,” Justice Mubiru opined.

Shs5b Court Award.

 On March 19, 2021, High Court Judge Duncan Gaswaga awarded Mr Justus Kyabahwa close to Shs5 billion in total as the outstanding balance on his contract as a consultant and general damages. 

China Henan International Cooperation Group Company Limited, a Chinese construction firm, which contracted Mr Kyabahwa as a consultant, appealed the High Court decision. The firm had contracted Mr Kyahabwa in 2018  for the construction of the Rukungiri-Kihihi-Ishasha/ Kanungu Road.