By Mable Nakibuuka
High Court Justice Boniface Wamala has rejected recusing himself from hearing cases involving Simbamanyo Estates and Equity Bank, despite a request for recusal written to him a few days ago by Arc. Peter Kamya, the aggrieved party in the cases.
Kamya, a renowned city architect, wrote to Justice Wamala on November 9th, 2020, beseeching him to recuse himself from hearing the Simbamanyo Vs Equity Bank cases because of the explicit bias he had exhibited during the hearing of the cases and in his rulings. According to Kamya, in his sanctimonious and rather rambling ruling, Justice Wamala brings even into sharper focus his bias.
In excerpts from his ruling Justice Wamala states thus:
“The matter was coming up on 12th October 2020 for Ruling in Miscellaneous Application No. 679 of 2020 (hereinafter referred to as “the Interim Order Appeal”) when Counsel for the Applicant informed Court that he wished to express their displeasure on behalf of the Applicant regarding how I, as the trial Judge, had handled the matters herein in issue. As such, the Applicant and Counsel wanted me to recuse myself from further handling of the main suit and any matter arising thereof. Counsel informed Court that the Managing Director (M.D) of the Plaintiff/Applicant had earlier on written a letter to that effect addressed to the office of the Chief Registrar and copied to this Court. The Applicant’s M.D now wished to raise the application orally before me.”
The plaintiff/applicant, Simbamanyo, filed HCCS NO 198 OF 2020 i.e. the Main Suit against the defendants/respondents Equity Bank and Bank One challenging the legality of the credit facilities advanced to them by the defendants and seeking a number of declarations and orders.
On the 18th June Simbamanyo, filed application No. 394 of 2020 referred to as the temporary injunction seeking to restrain the banks from enforcing the disputed loan facilities until the hearing and disposal of the main suit. The said application was fixed for hearing before Justice Boniface Wamala on 9th July 2020.
When the application came up for hearing on the said date, Counsel for Simbamanyo, the Applicant, indicated that the affidavit in reply had been served on them the previous day and they needed time to file a rejoinder. Secondly, they, Simbamanyo, had, two days earlier, filed another application which was raising preliminary points of law that had the effect of causing the striking out of the Written Statement of Defense (WSD) filed by the Defendants and thus disposing of the suit.
This was vide M.A No. 445 of 2020 (hereinafter referred to as “Preliminary Objections Application”). Counsel for Simbamanyo prayed that the Court fixes the latter application first and the earlier fixed application (for T.I) be let to abide the outcome of the latter application.
In the same vein, Simbamanyo’s Counsel sought for an adjournment and an interim order restraining all enforcement measures by the Bank. Counsel for the Bank opposed the application by the Applicant.
The Court allowed the application for Adjournment, allowed to fix and hear the Preliminary Objection application earlier than the temporary injunction application but declined to grant an interim injunction order that had been orally requested for by Simbamanyo’s Counsel.
Simbamanyo was advised to file a formal application for an interim injunction order if they so desired. The Court gave a schedule for completing pleadings, for filing of written submissions and for a Ruling due 11th September 2020.
In the intervening period before the date set for the Ruling the bank advertised Simbamnyo properties for sale. Hence on 13th August 2020, Simbamanyo was forced to file, vide M.A No. 601 of 2020, an application for an interim order of injunction (hereinafter referred to as “the Formal Interim Order Application”) restraining the Bank from selling, taking possession, dealing with or disposing of Simbamanyo’s mortgaged properties pending the hearing and final determination of the Preliminary Objections application and the T.I application.
This application was heard by the Registrar Her Worship Susan Kantange, who granted the application upon the condition that Simbamanyo pays 30% of the impugned outstanding loan amount of USD 10,514,501 to the Respondent before the date of the sale. The Ruling of the Registrar was delivered on the 2nd September 2020. The date of sale was said to be 7th September 2020.
On 3rd September 2020, Simbamanyo filed two applications, vide M.A 678 of 2020 for Interim Order of stay of the Orders of the Registrar (hereinafter referred to as “the Interim Stay Application”); and M.A 679 of 2020 being an appeal against the decision of the Registrar (the Interim Order Appeal).
Both applications were fixed for hearing before the trial Judge on 7th September 2020. When the applications came up for hearing, Counsel for Simbamanyo indicated that they had just been served with affidavits in reply in both applications and, as such, he needed to be granted time to file affidavits in rejoinder.
Counsel further requested that in the meantime, the status quo should remain until the parties are heard. Counsel for the Bank of-course opposed the application.
Justice Wamala’s Ruling and the Set-up
According to Kamya, in his ruling, Justice Boniface Wamala noted that the matter was taking a peculiar trend which required peculiar solutions. This statement was a set-up meant to prepare the ground for Justice Wamala’s subsequent confused ruling because there were no peculiar circumstances referred to.
What the plaintiffs, Simbamanyo, wanted was a stay of the registrar’s ruling until their appeal against it had been heard and disposed of. What was peculiar about that? That was the normal judicial process. You appeal against a ruling while staying its execution.
Nevertheless, Justice Wamala made an order extending the conditional Interim Order of the Registrar for 30 days which would expire on October 8, 2020 and in in pursuance of his sinister objective, stated that he would NOT extend that period and further ruled that this Order disposed of the Interim Stay application. The Judge then further ruled that he would give his ruling on the appeal on 12th October 2020.
This mismatch between the interim stay ruling and the ruling on the appeal was the set-up by the Judge. He knew very well that the properties would be sold well before the appeal ruling was made. And indeed, whether rightly or wrongly, the properties were sold.
On 15th September 2020, while the Ruling on the Interim Order Appeal was still pending, the Applicant filed two other applications; M.A 719 of 2020 seeking a stay of execution of the Order of the trial Judge vide M.A 678 of 2020 pending the determination of an intended appeal in the Court of Appeal (hereinafter referred to as “the Stay of Execution Application”; and M.A 720 of 2020 seeking leave to appeal against the decision of the trial Judge to the Court of Appeal (hereinafter referred to as “the Leave to Appeal Application”.
The two applications were consolidated on the advice of the trial Judge, heard and dismissed by the trial Judge on 6th October 2020 a day shy of the date of intended sale. The Ruling on the Interim Order Appeal was adjourned to 12th October 2020.
Application for Preliminary Objection – Miscellaneous Application No. 445 of 2020
In his further ruling Justice Wamala states that Simbamanyo claimed that despite Justice Wamala’s Ruling that the preliminary objection application would be disposed of first, and despite giving schedules for submissions and a date for ruling, the Respondent’s lawyers did not file their submissions either in time or up to date which frustrated the ruling and which transgression was just swept under the carpet under Justice Wamala’s watch.
Meanwhile, Justice Wamala continued hearing subsequent applications instead of letting them abide the outcome of the preliminary objection application whose ruling date had already been set.
His Lordship further stated; “Taking that into consideration, I directed the Registrar to first dispose of the interim order application and then return the file for further management. The complaint now is that I failed to properly guide the Registrar as I ought to have directed that the preliminary objection application be disposed of first! This is most surprising to me! First it is against reason.”
However, the Applicant states that there is nothing unreasonable or surprising about that because the Judge had the file and had given directives that the Preliminary Objection be disposed of first and even set the ruling date. So why did Justice Wamala not give the registrar guidance to that effect?
Justice Wamala goes on to state in an effort to exonerate himself of bias that “It cannot be the case that the Applicant wanted the Court to say what they wanted to hear at that particular time”
“Secondly, the reason the preliminary objection application did not take off even in its time is neither the fault of the Respondent nor the Court. As indicated in the background, after the interim order application was disposed of, the Applicant filed two applications; the interim stay application and the interim order appeal. These were definitely more urgent as the sale was days away. In my ruling in one of the applications (the interim stay application), I voiced the concern that I was not happy with the trend the matter was taking and the need to guard against disposal of the subject matter while the court got engaged in multiplicity of applications. It cannot be said, reasonably, that the very Applicant expected me to ignore the two urgent applications and direct the hearing of the preliminary objection application.”
The Applicant, Kamya, says this is another sanctimonious statement because it is Justice Wamala’s confused ruling, as already stated, that led to the selling of Simbamanyo properties.
The Judge further states, “When I disposed of the interim stay application, the Applicant chose to seek leave to appeal to the Court of Appeal. Still, it is not expected that the Court would have refused to entertain the application for leave and stay of execution and insist on an application that the Applicant themselves had put on hold by their conduct.
“So, by the time the preliminary objection application came up on 11th September 2020, the Applicant’s interest was elsewhere, explaining why they neither attended court hearing nor made any explanation for their absence. As such, the claim that the application was frustrated by the Respondents failure to file submissions in time is most untrue. Similarly, the claim that I swept the Respondent’s transgression under the carpet is equally unfortunate. The claim that I failed to offer proper guidance in the matter is most unfair to me. The above statements are unfortunate and are not true at all.”
However, the Applicant observes that; “The Preliminary Application (P.O.) was to be determined based on submissions, if the submissions were made and the ruling ready as alleged by Justice Wamala, why then was the ruling not read out even if both the applicant and his counsel were not present rather than state that by that time their interest lay elsewhere. And that the Applicant chose how to proceed and very assertively”
The Applicant further adds that the Court has a duty to give proper guidance on how the case should be handled/ proceed and therefore shifting the blame onto the applicant’s lawyers is sheer escapism on the part of His Lordship and is reflective of bias undertones.”
Biased Comments On An Issue Before Me
The Judge further claims that during the hearing on 7th September 2020, he is accused of making biased comments on the issue of illegality which is the center piece of the Applicant’s application for preliminary objection.
The comment was to the effect that illegality was not an issue since illegality is committed by two parties and I gave a hypothetical example of dealing in drugs.
Justice Wamala states that “Asking questions by the judge is a known judicial tool that is necessary to seek clarification and to ensure that the judge properly understands the parties’ case before he/she goes to write a decision. The question may be hard, at times even mean; but this cannot be a sign of bias. A judge’s decision is always based on the facts, the evidence and law. It is the duty of the parties to supply these materials to the Court. Even when the judge expresses an opinion that is not based on the facts, the evidence and law on the matter before it, during preliminary hearings, the judge is not bound by such opinions. Upon being provided with the correct facts, evidence and law, the judge is in position to come to a proper and fair decision. Judges have the liberty and academic freedom to express views during the hearing of matters. One purpose of this is to drive the lawyers before the Court to do research to satisfy the Judge and this is one of the ways jurisprudence develops.
The Applicant states in response to this that he was never aware that a Judge can say things they do not mean during a trial, simply as a means of provoking the opposite party to do research to satisfy the Judge. Kamya says if he had known this he would not have raised this as aground for bias. And for this he is indeed sorry!
Giving Ruling on the application for leave to appeal just a day before the intended sale of the Applicant’s property:
Justice Wamala further states that he gave 6th October 2020 as the day for the Ruling in the application for leave to appeal which was one-day shy of the intended sale of the Applicant’s properties, giving the Applicant literally no time to appeal my decision. The Applicant stated that even when I was requested to bring the date forward, I refused. The Applicant cited this as another instance of bias.
As already stated above and also contained in the Respondent’s Response, all dates were agreed upon in court between the Court and both Counsel. No date was ever imposed on the parties on any of the occasions the matters came up. The dates were dictated by the dairies of Counsel and that of the Court.
When the 6th day of October 2020 was agreed upon and set by the Court as the ruling date, the Applicant or their Counsel did not protest. When a request was made to me days later to bring the ruling forward, my decision was only based on whether I could write the ruling earlier than the set date. I found that my calendar could not permit that, I declined the request and informed the parties. This cannot be evidence of bias.
During the oral address over this recusal application, the Court was informed by the Applicant’s Counsel of what occasioned the request to bring the ruling date forward. Counsel informed the Court that after they left court, they brainstormed and agreed that it was dangerous to receive a ruling on 6th October 2020 which was a day away from the threatened sale. That is why they wrote to the Court the said request. The reason is legitimate but the Applicant has to appreciate that while they were discussing and changing strategy, the Court was looking at its calendar. The Court’s calendar cannot be dependent on the parties’ emergencies.
To this the Applicant wonders if it is really true that court cannot take into account parties’ emergencies?
The Applicant concluded that the comments referred to in their complaint, my actions and body language leads them to conclude that I already hold biased views over their cases and they find my actions and conduct biased, inappropriate and unacceptable.
As has been shown above, this conclusion has not been made out by the material produced by the Applicant and reasons given for my recusal from these proceedings.
On body language, the Applicant stated before court that when I was asking questions to his lawyer, I appeared angry and agitated. To him this was reason to apprehend bias.
I must point out that for such apprehension to constitute bias, it must be reasonable apprehension. It must be such that a reasonable and objective lay observer would gain the impression that there is real likelihood that the particular judicial officer is biased.
To this, the Applicant states there was reasonable apprehension and many objective observers in court saw this and urged him to take it up with the Judge otherwise he would not have brought it up if he was the only observer.
Justice Wamala further states “It is a long held principle of law, and actually one that spells out impartiality, that justice must not only be done but must be seen to be done. This is true. But it cannot be restricted to one party. Both parties and other independent observers should see that justice is done “
However, the Applicant says while this is true bias cannot be attributed to both parties to be termed as such. Bias in itself means being partial to one party to a dispute. Therefore, Justice Wamala’s statement on this is misleading and is a cover up!
Justice Wamala further states; “If this principle is restricted to one party’s perception of justice, it will not only occasion a miscarriage of justice but will also water down judicial practice. In adversarial systems, such as ours, parties come to court expecting to win but also expecting to lose. They do not come with an assurance of entitlement to a win. And the law is good and considerate, if the party loses but expected to win, they have not one but two chances to test the decision as to whether they are right or wrong. That being the case, there is no reason a party conjures circumstances of bias against a judicial officer well knowing that if the judicial officer is probably biased, it will show in his decision and will be used against him on appeal – not once but twice.
The applicant’s response to this is that while most of that may be true it was Justice Wamala’s persistent frustration of their attempts to appeal his decisions and rulings that showed him to be biased, not that he actually ruled against them.
Decision of the Court
In all therefore, the Applicant has not raised any ground that meets the criteria for my recusal from further conduct of the listed matters herein. The perception by the Applicant that I exhibited bias or lack of impartiality during the conduct of any of the matters has no reasonable basis. I therefore reiterate my sacred duty to do justice to all manner of people without fear or favour, affection or ill-will and accordingly reject this application. I will proceed to hear the matters beginning with the preliminary objection application.
It is so ordered.
In view of the above observations therefore the applicant finds Justice Wamala’s Refusal to recuse himself rather baffling.
In a similar matter one learned mind observed thus: “IF ONE PARTY FEELS UNCOMFORTABLE ABOUT A JUDICIAL OFFICER THE ONLY HONOURABLE THING TO DO IS TO STEP ASIDE.