Asiimwe v Makerere University (Miscellaneous Application 163 of 2022) [2023] UGHCCD 409 (4 August 2023)

Full Case Text

## THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT KAMPALA

### (CIVIL DIVISION)

#### **MISCELLANEOUS APPLICATION NO. 163 OF 2022**

(Arising from Makerere University Staff Appeals Tribunal Appeal No. 5 of 2019)

DR. DENIS ASIIMWE =============================== APPLICANT

## VERSUS

MAKERERE UNIVESRITY ========================= RESPONDENT

# **BEFORE: HON. JUSTICE EMMANUEL BAGUMA**

## **RULING**

This is an application by notice of motion under article 28(1), 40(2), 42 and 44(c) of the constitution, section 36 of the Judicature Act, section 57 (3) & (4) of the University and other tertiary institutions Act, Rules 3, 6, 7 & 8 ofthe Judicature (Judicial Review) Rules seeking for orders that; -

- 1. A writ of certiorari be issued quashing the Respondent's appointment board retrospective decision to dismiss the Applicant from the University Service with effect from 15 th January 2014. - 2. A writ of certiorari be issued quashing the Respondent's staff Tribunal upholding the appointments board decision. - 3. An order of prohibition to prevent further disciplinary proceedings against the Applicant on similar allegations. - 4. A declaration that the failure of the Respondent to avail the applicant with the alleged video and allow an opportunity for cross examination of the author rendered the proceedings a nullity. - 5. A declaration the Respondent's decision to proceed exparte on 11 th December 2018 in the absence of Applicant was illegal and violated the Applicant's rightto a fair hearing guaranteed by the constitution. - 6. A declaration that failure to deliverthe ruling within 45 days rendered the same a nullity.

- 7. A declaration that the applicant be awarded $500,000,000/$ = (Five Hundred thousand million shillings) as general damages and $28,445,319/=$ as outstanding allowance for the period between April 2017 to June 2022. - 8. A writ of mandamus be issued reinstating the applicant on the pay roll and university service as a lecturer. - 9. Costs of this application be provided for.

The application is supported by the affidavit sworn by **Dr. Denis Asiimwe** the applicant whose details are on record but briefly stated that;-

- 1. I was suspended from my job as an assistant lecturer for Social Research Methods at the Human Rights and Peace Center (HURIPEC) on 8th January 2014 by the Dean Law School, Dr. Damalie Nagita Musoke on allegations of receiving bribes from students and abscondment from duty which I successfully challenged in MC No. 26 of 2015. - 2. On 7th April 2017, Court delivered a ruling and ordered that the matter be referred to the appointments board and the University Staff Tribunal for hearing among other reliefs. - 3. Despite the clear court orders, the Respondent kept me on suspension for 20 months until when I was served with the charge sheet and summons to file a defence on 19th November 2018 requiring me to file a defence and appear before the appointments board. - 4. I denied all the offences and pointed out the incurable defects in the charge sheet as it was uncertain and no investigation report was attached and I couldn't provide a detailed response because I was not served with a list of witnesses, summary of respective evidence and documents intended to be used. - 5. I and my lawyer Isaac Semakadde appeared twice before the appointments board on 27th and 29th November 2018 but no hearing took place and we were not given any new date. - 6. I was shocked that the Respondent's appointments board proceeded ex parte on the 11th December 2018 and at its 587 meeting dismissed me from university service yet neither I nor my previous lawyers were aware about the hearing since we were not served with hearing notices. - 7. On 7th January 2019 I was officially served with the dismissal letter retrospectively dismissing me from the University with effect from 15th January 2014.

- 8. I filed an appeal in the Respondent's staff appeal tribunal which further violated my rights to a fair and speedy trial when they took three and half years delivering their ruling on the 6 th July 2022 contrary to the provisions of the constitution. - 9. The Respondent also illegally withheld my top up faculty allowance from April 2017 to June 2022 and full salary from February 2019 to June 2020 with no basis whatsoever till I was reinstated on half pay in a ruling delivered on 15 th July 2020 by the tribunal. - 10. The said video was never produced in the hearing and I was never allowed an opportunity to cross examine the author of the same which amounted to violation of my right to a fair hearing.

In reply, the Respondent opposed the application and in an affidavit sworn by **Yusuf Kiranda** the University Secretary of the Respondent whose details are on record but briefly states that;-

- 1. After the decision of the High Court in High Court Misc. Cause No. 26 of 2015 Denis Asiimwe Vs Makerere University & Another, the Applicant was charged before the Respondent University Appointments Board with two counts to wit, abscondment from duty and soliciting bribes. - 2. On the 19 th of November 2018, the applicant was served with a charge sheet and summons to file a defence before the Appointments Board in respect of the said charges by 5:00pm on 26 th November 2018 to appear before the Board on 27 th November 2018. - 3. When the matter came up on 27 th November 2018, the applicant and his Counsel appeared before the Respondent University Appointments Board and the hearing was adjourned to 29 th November 2019 and on that day in the presence of the Applicant and his lawyer the hearing was further adjourned to 11 th December 2018. - 4. On the 6 th day of December 2018, summons were extracted and served on the applicant for the hearing of the 11 th December 2018. - 5. On 11 th December 2018, neither the Applicant nor his Counsel appeared before the Appointment Board at the time the Applicant's case was called up for hearing. No explanation was presented to the Board either. - 6. The appointments Board on 11 th December 2018 stood over the matter for hearing to 3:00pm.

- 7. At 3:00pm after satisfying itselfthat the Applicant had received ample notice of the hearing date, the Appointments Board decided to proceed exparte with the hearing of the applicant's case. - 8. The dean faculty of law was called as a witness on behalf of the Respondent, who even adduced audio recordings in which the Applicant was recorded soliciting for a bribe from a student stating the amount, promises to prepare another proposal, revise answer booklet, alter the answer script, withdraw and destroy some answer scripts and dictating for the studentanswers. - 9. The board in its wisdom and in accordance with the Human Resource Manual 2009, decided to dismiss the Applicant from service. - 10. The decision of the Respondents Board was reasonable, legal, rational in the circumstances ofthe case. - 11. This court's attempt to inquire into the activities ofthe Board is barred by law and ought to be dismissed.

In rejoinder, the Applicant reiterated his averments in chief and contended that he was never served with a hearing notice and he has never been supplied with the said video used as evidence to dismiss him.

# **Legal Representation.**

Counsel Jude Byamukama represented the Applicant while Counsel Hudson Musoke represented the Respondent.

At the hearing both counsel agreed to file written submission and their details are on record.

# **Submissions by counsel for the Applicant.**

Counsel for the applicant submitted that this is a specialform of judicial review brought under section 57 (3) of the University and other Tertiary Institutions Act 2001 as amended rather different from judicial review application brought under section 36 of the Judicature Act. That the same takes the form of an appeal created under the University Act and hence it has a wider scope.

Counsel contended that this application is unique under provisions of section 57 and article 42 of the constitition and this court must re-evaluate the decision of the Staff Appeals Tribunal.

Counsel submitted that the decision of the Respondent's appointments board which the university tribunal upheld is tainted with procedural impropriety, illegality and irrationality thereby warranting judicial review in accordance with section 57 of the University and other Tertiary institutions Act.

Counsel submitted that there was procedural impropriety in the Tribunal's decision to uphold the appointments board' ruling.

Counsel referred to Article 28(1) of the Constitution of the Republic of Uganda, 1995 **which guarantees the right to a fair hearing.**

Counsel argued that the Applicant was not accorded afair hearing by the Appointments Board thereby violating his constitutionally guaranteed rights.

That the appointments board proceeded on a vague, ambiguous and highly defective charge sheet that rendered it impossible for the Applicant to appreciate the nature of the offences against him.

He cited the case of **Sigilani Vs Republic (2004) 2 KLR, 480** where **it was held that;**

*"The principle of the law governing charge sheets is that an accused should be charged with an offence known in law. The offence should be disclosed and stated clearly and in an unambiguous manner so that the accused may be able to plead to a specific charge that he can understand. It will also enable the accused to prepare his defence."*

Counsel submitted that there was misjoinder of offences. That since the purported charge of abscondment from duty did not arise from the same transaction with the alleged count on soliciting bribes. Itis trite law that a misjoinder of offences renders the charge sheet incurably defective.

Counsel stated that failure to avail the alleged audio recordings to the applicant or his lawyers violated his right to fair trial. Pre-trial disclosure isrooted in the non derogable right to a fair hearing. Article 28 (3) of the 1995 Constitution stipulates that a person who is charged with an offence must; first, be presumed innocent until proven guilty or until he or she has pleaded guilty and secondly, such person must be given adequate time and "facilities" for preparation of his orher defence.

Counsel referred to the case of Kenyan case of **Juma & Ors VS Attorney General of Kenya (2003) 2 EA 461** where it was held that;

> **"In an open and democratic society based on freedom and equality with the rule of law as its ultimate defender such as ours, the package constituting the right to a fair trial contains in it the right to pre-trial disclosure of material statements and exhibits. In an open and democratic society of our type courts cannot give approval to trial by ambush and in criminal litigation the courts cannot adopt a procedure under which an accused person will be ambushed subject to the rights of every person entrenched in the Constitution of Kenya and including the presumption of innocence until proved guilty beyond reasonable doubt, the fundamental right to a fair hearing by its nature requires that there be an equality between contestants in litigation. There can be no true equality if legal process allows one party to withhold material information from his adversary without just cause or peculiar circumstances ofthe case."**

Counsel contended that failure to serve the Applicant with the hearing notice for the matter before the appointments board on the 11th December 2018 when the decision to dismiss him was taken also violated his right. Counsel pointed out that the respondent in its affidavit in reply deponed by the University Secretary, Yusuf Kiranda does not attach any proof of service of the hearing notice for **11 th December 2018.**

Counsel submitted that the Tribunal took three years and six months to deliver a decision that was required by law to be delivered within 45 days contrary to section 57 (2) of the University and other Tertiary institutions Act which rendered the decision illegal.

Counsel submitted that the decision to dismiss the Applicant was taken on 11 th December 2018 but the dismissal backdated to 15 th January 2014. The exparte disciplinary hearing was held on 11 th December 2018. The decision to dismiss him could therefore not operate retrospectively at all.

In conclusion, Counsel prayed that court finds that the decision of the appointments board that was upheld by the Respondent's Tribunal is procedurally improper, illegal and irrational.

## **Submissions by counsel for the Respondent.**

Counsel cited the case of **Catherine Kanabahita Vs Makerere University & 2**

**Others; High Court Misc. Cause No. 92 OF 2014**, where court held that;-

*"Judicial Review is concerned not with the decision per se but the decision-making process. It involves an assessment of the manner in which a decision is made. It is not an appeal and the jurisdiction is exercised in a supervisory manner, not to vindicate rights as such, but to ensure that public powers are exercised in accordance with basic standards oflegality, fairness and rationality"*.

Counsel referred to the case of **Owor Arthur & 8 Others Vs Gulu University; High Court Misc Cause No. 18 OF 2007** where court stated that,

*"….. The overriding purpose of judicial review is to ensure that the individual concerned received fair treatment. If that lawful authority isnot abused by unfair treatment, it is not for the Court to take over the authority and the person entrusted to that authority by substituting its own decision on the merits ofwhat has to be decided ….. implicit in the concept of fair treatment are the* *two cardinal rules that constitute natural justice, no one shall be a judge in one's own cause and that no one shall be condemned unheard ….."*.

Counsel stated that Court examines the decision-making process to ensure that it adheres to three principles ofIllegality, Irrationality and Procedural Impropriety.

Counsel submitted that Illegality is described in the case of **CATHERINE KANABAHITA** (supra) thus,

*"Illegality iswhen the decision-making authority commits an error of law in the process oftaking the decision or making the act, the subjectof the complaint. Acting without jurisdiction or ultra vires or contrary to the provision of the law of its principles are instances ofillegality"*.

The operative principle is a decision-making authority acting outside the provisions of the enabling Law. In the case of Makerere University Staff Tribunal, the enabling law is Section 57(2) of The Universities and Other Tertiary Institutions Act, 2001, which states that,

*"(2) In any appealunder subsection (i) the Court may confirm, vary, amend or set aside the decision appealed against or give such decision as the case may requir***e"**.

Counsel submitted that the Applicant appealed to The Staff Appeals Tribunal against the decision of the Appointments Board that had dismissed him from the service of the Respondent University. At the hearing, the Applicant was represented by Counsel. The Applicant's Counsel was given time to prepare and present submissions on his behalf. At the end of the hearing, the Staff Appeals Tribunal did not find any merit in the Applicant's appeal. The Staff Tribunal

decided to uphold the decision of the Appointments Board. This was within the provisions ofthe enabling law cited above.

Counsel stated that in the case of **Catherine Kanabahita** (supra), Irrationality is described in the following terms,

*"Irrationality is when there issuch gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision, such a decision is usually in defiance of logic and acceptable moral standards"*.

Counsel argued that the Applicant complained to the Staff Appeals Tribunal that he had not been accorded a fair hearing and that the punishment imposed was too harsh. The Applicant who was represented by Counsel, was granted enough time to present his case before the Staff Appeals Tribunal. The Tribunal in its ruling made the following findings.

*"The Tribunal finds that the Appellant was given notice of the allegations against him, was served and a sufficient time was given to him to prepare a defence. Similarly, the charge sheet clearly stipulated the offence with which the Appellant "was charged. The Appellant was given a chance to appear and present his case before an impartial Committee which he did not take advantage of thereby prejudicing his own case"*.

That the Staff Appeals Tribunal then upheld the decision of the Appointments Board, thus dismissing the appeal. The facts as presented by the Applicant before the Tribunal were in tandem with the findings/decision of the Staff Appeals Tribunal. The details of the charge sheet were never a matter for consideration before the Staff Appeals Tribunal.

Counsel submitted that the Staff Appeals Tribunal considered all the evidence presented before it by the Applicant. The case for the Respondent was also considered. The Staff Appeals Tribunal equally took into consideration the circumstances of the case. The only logical conclusion that was open to any rational authority was to uphold the decision of the Appointments Board and dismiss the appeal, for lack of merit. The decision of the Staff Appeals Tribunal should not be subjected to Judicial Review.

Counsel referred to the case of Catherine Kanabahita (supra) which quoted the case of Twinomuhangi Vs Kabale District & Others (2006) Hcb Vol 1 page 130 with approval, described Procedural Impropriety to be,

*"Procedural Impropriety is when there is failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in the non-observance of the rules of natural justice or to act with procedural unfairness towards one to be affected by the decision. It may also involve failure to adhere to and observe procedural rules expressly laid down in a statute or legislative instrument by which such authority exercises jurisdiction tomake a decision".*

The gist of this principle of |Judicial Review is a right to a fair hearing and to act impartially. In the instant case, the Applicant filed his appeal before the Staff Appeals Tribunal. The Tribunal duly summoned the parties to appear before it. The Applicant was granted a right to legal representation and was represented by Mr. Isaac Ssemakadde of The Centre for Legal Aid. The Applicant presented what he wanted to be resolved as issues.

That Counsel for the Applicant was allowed or accorded an opportunity to make both skeleton arguments and substantive representation. The Tribunal granted Counsel for the Applicant ample time to prepare and present his case. The arguments as presented were wellcaptured in the ruling. The conclusion was that the Applicant's appeal lacked merit and was accordingly dismissed. The Tribunal observed all the rules of natural justice expected of it and at no any one time did the Applicant even complain of unfair treatment by the Staff Appeals Tribunal.

In rejoinder, counsel for applicant reiterated his submissions in chief and added that it is not true that parties agreed that this application for judicial review only concerned the decision of the Staff Appeals Tribunal.

## **Analysis ofcourt.**

Section 57 (1) & (2) of The Universities and Other Tertiary Institutions Act, 2001 states that,

*1) "A member of staf may appealto the University Staff tribunal against a decision of the Appointments Board within fourteen days after being notified of the decision.*

*2) In any appeal under subsection (1), the Tribunal shall within forty five confirm, vary, amend or set aside the decision appealed against or give such decision as it thinks appropriate".*

In the case of *Pastoli Vs Kabale District Local Government Council & Others [2008] 2 EA 300* court noted that;

*"in order to succeed in an application for judicial review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality or procedural impropriety".*

Also in the case of **Arua Kubala Park Operators and Market Vendors' Cooperative Society Limited Vs Arua Municipal Council MC No. 3 of 2016,**

court while relying on the decision of *Associated Provincial Picture Houses Limited v. Wednesbury Corporation [1948] 1 KB 223* held that:

"judicial review is premised on allegations that a public body; - acted without powers (lack of Jurisdiction); went beyond its powers (exceeded Jurisdiction); failed to comply with applicable rules of natural justice; proceeded on a mistaken view of the law (error of law on the face of the record); or arrived at a decision so unreasonable that no court, tribunal or public authority properly directing itself on the relevant law and acting reasonably could have reached it"

In the instant case, I have carefully perused the affidavit in support of notice of motion where the applicant stated that his previous lawyer wrote a letter dated 26th November 2018 indicating that the applicant had denied all the counts instituted against him and in paragraph 6 his lawyers also indicated that he could not effectively respondent to the charge sheet in the absence of list of witnesses, summary of evidence and all other documents. Further in paragraph 7 the applicant indicated that he appeared twice with his lawyer before the appointments board. However in paragraph 8 he stated that the respondent proceeded exparte on 11th December 2018 and dismissed him, a decision he he appealed against before the Staff Appeals Tribunal and the tribunal upheld the decision of the Appointments board dismissing him.

Upon perusal of the affidavit in reply by Yunus Kiranda, in paragraph 8, he stated that on 29th November 2018, the case was adjourned in the presence of the applicant and his lawyer to 11th December 2018. Nevertheless, in paragraph 9, the Respondent on 6th December 2018 extracted hearing notices for the hearing of 11th December 2018 and served them on the Applicant and his lawyer. The Respondent further states in paragraph 10 that on 11th December 2018 neither the applicant nor his counsel appeared before the appointments board. No written explanation was presented to the board either. The matter was stood over up to 3:00pm but still the applicant did not attend the hearing and Respondent proceeded exparte.

From the above analysis of the evidence adduced from both sides, the appeals tribunal considered all the evidence presented before it by both parties. The Staff Appeals Tribunal considered the circumstances of the case in the appointments board and came up with with the logical and rational decision to uphold the decision of the appointments board.

Counsel for the applicant was accorded an opportunity to make arguments and this shows that the applicant was given an opportunity to be heard and this is seen in the ruling of the Staff Appeals Tribunal.

Counsel for the applicant laboured so hard to convince court that this is a special application for judicial review under section 57 of the University and other Tertiary Institutions Act which partly takes the form of an appeal and its scope is much wider than the usualjudicial review applications. However, it should be noted that the right to be heard in the tribunals like it is in the case the appointments board and staff appeals tribunal of the Respondent the due process was followed and the applicant was granted fair treatment.

It is my finding that the staff appeals tribunal observed all the rules of natural justice expected of it and I have no doubt in my mind thatthe applicant received fair treatment in both the appointments board and the staffappeals tribunal hence I see no reason to set aside the decision of the staff appeals tribunal.

## **Conclusion.**

In the final result this application fails with the following orders;-

- 1. The application is hereby dismissed. - 2. The decision of the Respondent Staff Appeals tribunal is upheld. - 3. Given the nature and circumstances ofthis application , no order as to costs.

Dated, signed, sealed and delivered by email on this **4 th day of August 2023**

Emmanuel Baguma

Judge.