MAKE OR BREAK! Inside a court case that may ‘KILL’ Law Development Centre

Was there foul play by examiners or he genuinely failed exams? This is what George Williams Mukula, a former Law Development Centre (LDC) student, wants court to pronounce itself on in a case that may ‘break or make’ the most loved and loathed Bar Course institution in the country. Having failed to get remedy from LDC bosses led by her director Frank Nigel Othembi, he has now taken the matter to the courts of law. All that Mukula wants is “to personally verify or look at the Land Transactions supplementary answer sheet to confirm the mark he scored in the examination”. In the alternative and without prejudice, he wants the court to nominate independent external examiners from whom the court shall appoint one to review and remark his Land Transactions supplementary answer sheet. He claims the paper was too easy for him to fail.

Most Ugandans especially current and former students have often challenged LDC in courts with little success, but Mukula is optimistic of getting a favourable ruling and this is something that LDC bosses are worried of since it may upset the status quo and galvanize those who have been fearing to come out to also try their luck. It goes without mention that every legal practitioner including the Chief Justice has to pass through the gates of LDC at one point.

BUT HOW DID WE REACH HERE

According to court documents seen by this publication, Mukula was on 6th Sept, 2017 admitted to LDC to study Bar Course for the academic year 2017/18. He signed the rules for passing the Bar Course and went on to attend academic programs as required. Whereas he always shined in all exams—from 1st to 3rd term—this was not the case in his last (4th) term. This time he failed the Land Transactions paper. He sat for a supplementary Exam but still scored 42% which was below the 50% required pass mark. This meant he could not graduate in time.

Acting on a notice issued by LDC’s academic registrar (for all those who failed to appeal), he appealed to the Examinations Appeals Committee on 5th June, 2019 although the deadline for appeal was on 3rd June.

Mukula claims that he missed the 3rd June appeal deadline due to circumstances beyond his control. That the 3rd June deadline was a public holiday (Martyrs day) and the immediate following day (4th June) was also declared Eid day which was observed as a public holiday.

“Therefore I could not pay appeal fees and file my appeal within the time set,” Mukula asserts. He further adds that he went on to file and pay fees for his appeal on 5th June and also attached on his form a hand written application explaining why there was a delay and requesting to be considered.

APPEAL REJECTED

According to Mukula, he was shocked when LDC’s academic registrar, who also happens to be the Examinations Appeals Committee secretary, informed him in an 11th June letter that his application to file an appeal out of time had been dismissed. The justification was that the “extension of time to file an appeal is not provided for in the rules governing passing of the Bar Course”.

Mukula insists this explanation contradicts Rule 29 of the Rules for passing the Bar course which guides thus and reads: “The Examination Appeals Committee shall hear any appeal made under these rules,” it reads and further adds “The Examination Appeals Committee may, where a reasonable cause is shown by an appellant, extend the period for lodging an appeal under these rules.”

On 18th June and July 22nd , 2019, Mukula would go on to petition LDC boss, Othembi, who is also the Chairperson Board of Examiners to verify the former’s Land Transactions supplementary hand written answer sheet to confirm that he indeed failed. These requests were reportedly ignored. Not to give up quickly, Mukula got a relief, when in letters dated 24th June and 25th July, was advised by Othembi to again apply to the Examinations Appeals Committee to be allowed to file his appeal out of time as provided for in the rules for passing the Bar Course which he did on 2nd September 2019.

Mukula kept requesting for a response from the Examinations Appeals Committee albeit unsuccessful. After several reminders including a notice of intention to sue dated 14th October, 2019 and a request letter for a formal response dated 25th October, Mukula was later informed that his 2nd September appeal would be considered during the 18th November 18th sitting of the Examinations Appeals Committee.

With constant follow ups, Mukula did not get any formal response until 5th December when the LDC boss, Othembi, reportedly informed him verbally that his application was not considered during the 18th sitting and no justification was given. Othembi further frankly made it clear that Mukula had no right to look at his answer sheet in question. And the only solution was for him to re-apply for admission to be allowed to re-sit the said examination upon payment of fresh admission and tuition fees amounting to Shs 1,750,000.

COURT SHOWDOWN

Having exhausted all internal processes without success, Mukula on February 26, 2020 decided to go to High Court (Civil Division, cause No.49 of 2020) for a Judicial Review. He was represented by Counsel Abubaker Ssekanjako of Lukwago&Co.Advocates. LDC and her director Othembi are represented by counsels Didas Bakunzi Mufasha and John Musiime from UEDCL Tower based Kyagaba & Otatiina Advocates.

Mukula wanted a declaration that the decision by LDC to dismiss his 5th June, 2019 application for extension of time to file an appeal and the appeal itself on the basis that the Rules governing passing Bar Course do not provide for extension of time within which an appellant may to lodge an appeal was irrational, unreasonable and done in bad faith.

He also challenged the conduct of the LDC’s the Examinations Appeals Committee when it refused or neglected to hear, consider and determine his 2nd September, 2019 appeal. He also castigates the conduct of LDC boss, Othembi, for rejecting requests by Mukula to personally verify or look at the alleged failed paper which he says was irrational, unreasonable and done in bad faith. Mukula prayed for court to issue an order of mandamus directing LDC to avail him with his Land Transaction answer sheet for court’s inspection to verify the mark he scored.

In the alternative and without prejudice, he also asked court to nominate independent external examiners from whom court shall appoint one to review and remark the applicant’s Land Transactions supplementary answer sheet.He also sought for an award of general, punitive and exemplary damages plus case costs against LDC.

In their defence, LDC bosses, through their lawyers, aver that the application was incurably incompetent and ought to be dismissed with costs. First, that the applicant failed to appeal to the LDC Examinations Appeals Committee within the stipulated time provided for lodging the appeals which was 3rd June and only waited until 5th June, 2019.“A time limit by 3rd June 2019 [not on 3rd June 2019] means that the last day is 2nd June, 2019,” reads the respondent’s submissions in rejoinder.

These further contend that the order sought to nominate independent external examiners to review and remark the applicant’s Land Transactions supplementary answer sheet is not available in the law and incase it is granted, it will erode the institution’s academic independence and can be likened to the applicant “seeking to have his own examiners”.

LDC also noted that Mukula did not exhaust all remedies available to him before running to court. LDC lawyers further aver that under out of court settlement proposal, they were ready to avail Mukula a copy of his Land Transactions supplementary answer sheet. This reportedly never materialized, according to Mukula lawyers. Whereas LDC lawyers contend that a meeting to settle matters out of court was held, Mukula lawyers dispute this as a lie. They never agreed on terms and conditions and hence the matter fell flat.

CASE DISMISSED

In his ruling dated 29th October, 2020, Justice Micheal Elubu dismissed the application with costs.He reasoned that the application was time barred and hence incompetent. According Elubu, Mukula and lawyers did not meet Rule 5 of The Judicature (Judicial Review) Rules, 2009, which stipulate in sub rule (1) that, “An application for judicial review shall be made promptly and in any event within three months from the date when the grounds of the application first arose, unless the Court considers that there is good reason for extending the period within which the application shall be made”.

He therefore observed that the 11th June, 2019 and 11th October, 2019 are the dates of the impugned decision. Thus they should have been construed as the dates when the grounds for judicial review arose for the purposes of the application. Computing from 11th October, Justice Elubu determined that Mukula should have filed for judicial review not later than 11th of January, 2020. He instead filed his case on 26th, February which was past the three months judicial review time frame.

“It has been built into Rules that an applicant who is caught by time would for good cause be shown, have the time within which to apply extended. In that case the applicant would have to make a formal application. There has been no such application made in the instant case. For that reason it is my finding that this application as a whole was caught by time and it is therefore time barred. As no application to extend time was made, the matter is incompetent. For the above reasons I shall not dwell on the merits and this matter stands dismissed with costs,” justice Elubu ruled.

MUKULA APPEALS

Mukula, not satisfied with justice Elubu’s ruling, has now run to the court of Appeal. He opines that “the learned trial judge erred in law and fact in construing 11th June, 2019 and 11th October, 2019 as the dates when the grounds for judicial review arose.” To him, it should have been 5th December, 2019 when the LDC boss, Othembi, reportedly informed him verbally that his application was not considered during the 18th November,2019 18th sitting of the Examinations Appeals Committee. And with this date in consideration, his February 26th, 2020 application would have fallen within the required judicial review three months’ time frame. The court of Appeal has now set 29th of this month to hear the matter. WATCH THIS SPACE! (ARE YOU AN LDC STUDENT—CURRENT OR FORMER—WHO FEELS TO HAVE BEEN UNFAIRLY TREATED BY THE INSTITUTION? SHARE WITH US YOUR EXPERIENCE. CALL/TEXT/WHATSAPP 0777959024 OR EMAIL: redpeppertips@gmail.com).

 

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