Ategeka and 15 Others v Kagadi District Local Government (Miscellaneous Cause 15 of 2022) [2024] UGHC 871 (26 April 2024)

### THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT HOIMA **MISC. CAUSE NO.15 OF 2022**

1. ATEGEKA KENNETH 2. ATUGONZA JOSEPH **3. ATUHAIRE OBED 4. AYESIIGA TWINE 5. TUGUME FLORENTINA 6. KAYESU JEMIMAH 7. AKUGIZIBWE CHRISTINE 8. KATUNGUKA JOHN** 9. KIROKIMU RODAH **10. BALINDA SAMUEL** 11. KYAKUHA WAHABU **12. KUSIIMA DENNIS** 13. AMANYA SADRACK 14. NAMUGERWA JETU **15. MUGISA VARANTINE** 16. SUNDAY WILSON ::::::::::::::::::::::::::::::::::::

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### **VERSUS**

**APPLICANTS**

#### KAGADI DISTRICT LOCAL GOVERNMENT ::::::::::::::::::::::::::::::::::::

#### Before: Hon. Justice Byaruhanga Jesse Rugyema

### **RULING**

$[1]$ This is one of some of the files that survived the fire that gutted the High court Registry on the morning of $21/10/22023$ . In this Application for Judicial Review brought by Notice of Motion under Articles 42 & 50 of the 1995 Constitution of the Republic of Uganda as amended, Ss.33 & 37 of the Judicature Act, S.98 CPA, Rules $3(1)$ (a), 3A (6) (1) & 7 of the Judicature (Judicial Review) Amendment Rules S.1 No.32 of 2019, and other enabling laws, the Applicants are seeking the following Judicial reliefs/orders:

a) An order of Certiorari to issue quashing the illegal dismissal of the from their places of employment by the Applicants Chief Administrative Officer of the Respondent through Notice dated $14<sup>th</sup>/2/2022$ for being illegal, irregular, and without just cause.

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- b) An order of prohibition to issue to restrain and bar the Respondent from dismissing or removing the Applicants from their offices or rendering them redundant without any cause and from searching and recruiting other teachers until decision is just properly made by the appointing authority and all other governing authorities concerning the termination or reinstatement of the Applicants at their places of employment. - c) An order of permanent injunction restraining the Respondent their agents or anyone under their direction from implementing and/or enforcing the Respondent's direction or order terminating the Applicants' employment. - d) An order of Mandamus directing the Respondent to reinstate the Applicants on their pay roll and pay all their salary arrears of the months of March and April 2021 and all accrued benefits to date. - e) A **declaration** that the audit report conducted by the Respondent's District Internal Audit on the 22/4/2021 on the appointment of the teachers and their being added on the pay roll amounts to abuse of office was unjustified as it was against the principles of Natural justice and fair hearing, illegal, ultra vires and unconstitutional. - f) That an award of damages and exemplary damages be made to the Applicants for loss/injury occasioned by the Respondent's decision refusing them to be allowed in their places of employment, refusing to reinstate them to the public service and pay all their accrued benefits. - $[2]$ The Application is based upon the grounds set out in the supporting affidavits of the application deposed by **Ategeka Kenneth** ( $1^{st}$ Applicant), **Atugonza Joseph** (2<sup>nd</sup> Applicant) and **Atuhaire Obed** (3<sup>rd</sup> Applicant). - $[3]$ The Respondent opposed the Application and filed an affidavit in reply deposed by Edward Bisangabasaija, Principal Assistant Secretary of the Respondent which is as follows;

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- a) That all the Applicants are not civil servants and have never been appointed to the service by the Respondent's District Service Commission as required by law and therefore, made no admission to any of the contents in the Applicants' affidavits in support of the Application. - b) That the Applicants had their names illegally entered into the Respondent's pay roll and drew salary and emoluments as a result of breach of the law. - c) That the Respondent discovered anomalies in its staffing and commissioned an audit to inquire into the same and the Respondent's report dated 22/4/2021 revealed that the Applicants were irregularly recruited and deployed in the Respondent's service and have been unlawfully drawing salaries from the Respondent. - d) That the Respondent reported the said anomaly to police and the Inspectorate of Government for investigation and as a consequence of the investigations, the Deputy Chief Administrator of the Respondent, Mr. Fredrick Balemeezi, the Principal Human Resource Officer, Mr. Bukenya Bartholomew were charged with the offence of abuse of office by irregularly recruiting, deploying and entering the names of the Applicants into the Respondent's pay roll and Mr. Fredrick Balemeezi was convicted on a plea of guilt and was disqualified from holding office for 10 years while the rest, are also facing prosecution and or have been already prosecuted.

# **Background**

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- [41 Around 2019, in the month of February, New vision Newspaper external advert was published by the District Service Commission of Kagadi District, the Respondent inviting Applicants to fill in the vacancies as teachers and the Applicants were among the applicants. - $[5]$ The Applicants names were shortlisted and pinned at the district Notice Board. Interviews were conducted in Kampala as well as at the District Local Government Headquarters and on 3/5/2019, the Applicants were handed over appointment letters on probation through the District Service Commission as successful applicants as Education Assistants (Grade III teachers).

- [6] In turn, the Applicants communicated their acceptance of their appointments and eventually the Chief Administrative Officer confirmed their appointment thus the Applicants became admitted to the pensionable establishment of the Public Service. They were each posted to their respective primary schools by the Chief Administrative Officer. - Around the month of April 2021, the Respondent withheld the Applicants $[7]$ salaries without any communication but on 14/2/2022, the Chief Administrative Officer of the Respondent communicated to their respective Head Teachers that the Applicants were illegally appointed and that they were no longer employees of the Respondent. - As a result of the above developments, the Applicants filed the present $[8]$ application for judicial review. The Applicants contend that as a result of numerous flaws in the Respondent's decision making process, they have and are likely to continue suffering irreparable harm, suffered discrimination, humiliation, loss of dignity, loss of impairment of personal and vocational growth, loss of past and future salary coupled with employee benefits, accrued loans, disruption of family welfare, stress etc. - $[9]$ It is the Respondent's case on the other hand that the Applicants have never been its employees, they were irregularly recruited and deployed into the Respondent's service and were unlawfully drawing salaries from the Respondent.

### **Counsel legal representation**

[10] The Applicants were represented by Ms. Sylvia Winter of Ms. Allen & Partners, Advocates, Kampala while the Respondent Local Government was represented by Mr. Ebilla Hillary of Attorney General's Chambers, counsel filed their Kampala. respective Both submissions for consideration in the determination of this application.

# Preliminary points of law/objections

### Whether the Application is time barred by limitation

[11] Counsel for the Respondent submitted that under **Rule No.5(1)** of the Judicature (Judicial Review Rules) 2009 as amended in 2019.

> "An application for judicial review shall be made burbosely 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."

Counsel relied on the authorities of Kintu Samuel & Anor Vs Registrar of Companies & 2 Ors, H. C Misc. Cause No.58 of 2021 and In the matter of an Application for judicial Review by Kadope Vs UNRA, H. C. Consolidated Misc. Cause No.40 of 2019 for the proposition that an application for judicial review filed outside the prescribed time under **Rule** 5(1) (supra) without seeking extension of time is incompetent and therefore liable for dismissal.

- [12] Counsel submitted that in this case, the Applicants are seeking to quash the decision of the Respondents in the Audit report dated 22/4/2021 which was implemented immediately and resulted to the Applicants not receiving salary from April 2021 to date. That the actual decision the Applicants seek to overturn is the audit report date of 22<sup>nd</sup> April 2021 made 13 months prior to the filing of this application thus, that the application is time barred and without merit. - [13] Counsel for the Applicants does not agree. According to him, the in April Applicants' salaries were withheld 2021 without anv communication or justifiable excuse but they continued to work until $4<sup>th</sup>/2/2022$ when a formal communication was made by the Respondent, stating that they were illegally appointed and were not therefore entitled to any salary. That otherwise, the alleged Audit report of April 2021 was never availed to the Applicants and therefore, the Applicants could not have bought this application before they were formally terminated. That the non-payment of salaries or delay in payment has never amounted to termination of employment, the Applicants diligently carried on their

duties until they were terminated without a fair hearing by the Respondent by letter dated 14<sup>th</sup> February 2022.

- [14] In F. X Miramago Vs A. G [1979] HCB 24, it was held that the period of limitation begins to run as against a plaintiff from the time the cause of action accrued until when the suit is actually filed. - [15] In the instant case, the Applicants clearly pleaded that they **seek to quash** the illegal dismissal from their places of employment by the Chief Administrative Officer of the Respondent through notice dated 14<sup>th</sup> February 2022 for being illegal, irregular and without just cause. - There is no evidence and it has not been pleaded that the Audit report conducted by the Respondent's District Internal Audit on the 22/4/2021 was brought to the attention of the Applicants. Indeed, as rightly submitted by counsel for the Applicants, mere non-payment of salaries or delay in payment has never amounted to termination of employment. The Applicants diligently continued to carry out/on their duties until they were formally terminated by letter dated 14/2/2022 addressed to them through their Head Teachers that they were persona non grata for being illegally recruited. The cause of action began running from when their termination" from employment was brought to their attention through their Head Teachers, by letter dated $14/2/2022$ that declared them unwanted in their work places. - [16] The Applicants instituted the present action for judicial review on $16<sup>th</sup>/5/2022$ . There is no evidence as regards when and at what time the head teachers of the Applicants received the letter dated $14/2/2022$ (Annex "G" to the Application) and when the information was relayed to the Applicants. I would in the premises hold that the Application was filed within the prescribed time set by Rule $5(1)$ (supra) in view of the absence of evidence regarding when annex "G" was brought to the attention of the Applicants. - [17] In the premises, I find that the preliminary objection has no merit and it is accordingly overruled. The Application for judicial review was filed on 16/5/2022 and there is good reason to find that it was filed within the prescribed time of 3 months. ## Whether the application is properly before this court

- [18] Counsel for the Respondent relying on S.3 of the labour Dispute (Arbitration and settlement) Act, 2006 submitted that the section provides for the office of the labour officer and its jurisdiction. That S.8 of the Act provides for the industrial court to arbitrate on labour disputes and adjudicate upon questions of law and fact arising from references to the industrial court by any other law. He submitted therefore that whereas High court has unlimited jurisdiction, the first court of instance for labour matters is the labour officer and not the High court, See S.22 of the Act and African Field Epidomology Network Vs Peter Wasswa Kityaba, HCCA No.124 of 2017. - [ ] Counsel concluded that the Applicants in this case contend that they were employed by the Respondent and under the service of the Respondent for various times until the Respondent elected to unlawfully terminate their services outside the law. It is his contention that the issues raised by the Applicants can only be determined by the labour court. On the other hand, counsel for the Applicants submitted in rejoinder that the Applicants were duly appointed by the District Service Commission, on whose information the Respondent's representative acted and effected, although the same Respondent without according the Applicants a fair hearing alleged illegal recruitment hence their termination and withdraw of their salaries unjustly. That it is from these facts that an action for judicial review was brought against the Respondent. She relied on the authority of Ms. Anny Katabazi-Bwengye Vs Uganda Christian University, H. C Misc. Cause No.268 of 2017. - [20] According to Black's law Dictionary 11<sup>th</sup> Edition at P. 1013, judicial review is defined as a court's power to review the actions of other branches or levels of Government especially in the court's power to invalidate legislative and executive actions as being unconstitutional. - [21] Article 42 of the 1995 Constitution of Uganda provides for the right to any aggrieved person to apply to a court of law for judicial review of a decision of any public body or authority thus:

"Any person who is appearing before any administrative official or body has a right to be treated justly and fairly and shall have a right to apply to a court of law in respect of any administrative decision taken against him or her."

The constitution provides for the right to just and fair treatment in administrative decision.

[22] In Unzi Godfrey Licho Vs Moyo District Local Government & Anor, H. C Misc. Cause No.97 of 2016, it was held that:

> "Judicial review of Administrative action is a procedure by which a person who has been affected by a particular administrative decision, action and failure to or act of a public authority, may make an application to the High court which may provide a remedy if it decides that an authority has acted unlawfully."

- [23] As was held in Mrs. Anny Katabazi Bwengye (supra), it is now settled that judicial review is not concerned with the decision in issue but with the decision making process through which the decision was made. - [24] In the instant case, it is not in dispute that the Respondent is a public body and that the Applicants were appointed to the service of the Respondent as teachers though the Respondent contends that they were never legally recruited and appointed to the civil service as Education assistants. - [25] According to Rule 3 of the Judicature (Judicial Review) Rules (supra), applications may be made under S.30 (1) of The Judicature Act, for orders of mandamus, prohibition, certiorari and an injunction (by way of Judicial review). - [26] In the instant case, the Applicants are seeking the above judicial remedies upon being aggrieved at the hands of the Respondent who terminated their services and therefore want a remedy against the Respondent for vindication of their rights and redress of their grievances. In the premises, I find that this is not a labour dispute as counsel for the Respondent want this court to find but an application for a judicial remedy of review of the decision making process through which the decision to terminate their

employment was made. As a result of the foregoing, I find that this application is properly before this court.

## Whether the Applicants are entitled to the remedies sought

- [27] It is the contention of the Respondent that the Applicants were never employees of the Respondent on the grounds that they were illegally recruited into the Respondent public service by the Deputy Chief Administrative Officer of the Respondent upon conniving with the Principal Human Resource Officer and the Applicants themselves. - [28] The Applicants on the other hand contend that they were appointed by the District Service Commission into the public service as Education Assistants though the then Deputy Chief Administrative Officer Mr. Balemeezi **Fredrick** appointed and confirmed the Applicants as Education Assistants and were accordingly deployed as teachers in various schools in the district. It is also not in dispute that the Applicants had their services "summarily" terminated by letter addressed through their respective head teachers dated $14/2/2022$ on the grounds that there were "a lot of anomalies in the appointment of employees and access to the pay roll...." The Applicants were declared unwanted around or at their places of work. - [30] The Respondent opposed the application by an affidavit in reply by **Edward Bisangabasaija** who deposed as follows; - a) That as per the Respondent's audit report dated $22/4/2021$ , the Applicants were irregularly recruited and deployed into the Respondent's services and were unlawfully drawing salaries from the Respondent. - b) The Deputy Chief Administrative Officer of the Respondent, Mr. Fredrick Balemeezi, the Principal Human Resource Officer, Mr. Musinguzi Godfrey and District Education Officer, Mr. Bukenya **Bartholomew** who were suspected to had been behind the illegal recruitment and deployment of the Applicants were charged in the courts of law with the offences of abuse of office for irregularly recruiting, deploying and entering the names of the Applicants into the Respondent's pay roll. - c) As per the criminal court proceedings at the High court Anticorruption court at Kololo, the said Fredrick Balemeezi pleaded

guilty to the offence of Abuse of office C/s 11(1) of the Anti-**Corruption Act, 2009** and plea bargained his sentence.

- d) The Principal Human Resource Officer, Mr. Musinguzi Godfrey and the District Education Officer Mr. Bartholomew Bukenya denied the charges but upon trial Musinguzi Godfrey was found guilty of Abuse of office i.e., doing an arbitrary act prejudicial to the interests of his employer by irregularly placing 60 personnel on the pay roll without following the requisite processes and accordingly convicted. Bartholomew Bukenya was found not guilty of the offence and accordingly acquitted of the charges by the Anti- Corruption Division. Kololo. - [31] The above particular deposition were neither denied nor rebutted by the Respondents. It is settled law that where facts are sworn to in an affidavit and they are not denied or rebutted by the opposite party, the presumption is that they are accepted as the truth, Massa Vs Achen [1978] HCB 297. - [32] From the foregoing, it is clear that the Respondent's evidence i.e. the successful prosecution of the 2 Respondent's officials for their irregular recruitment of the Applicants and having their names entered into the Respondent's pay roll, has established that the Applicants were illegally recruited into the public office of the Respondent as Education Assistants. In my view, it cannot be said that the Deputy Administrative Officer and the Principal Human Resource Officer of the Respondent who committed the illegalities in the illegal recruitment of the Applicants did so without any motivation. They committed these illegalities in favour of the Applicants for a consideration coming from the Applicants. The Applicants are therefore privy to the illegalities. As rightly submitted by counsel for the Respondent, the Applicants connived with officers of the Respondent to acquire appointment letters and have their names illegally entered into the pay roll of the Respondent. They benefited from the said illegality and or proceeds of crime until they were discovered and eventually had their services summarily terminated. - [33] Under common law, termination of services or dismissal refers to instant termination of services or dismissal without notice (and without a hearing) or pay in lieu of notice, usually because of gross or serious misconduct, for example, theft, fraud, violence, see **Barclays Bank Vs Mubiru**, **CA(U)** No.1 of 1998. However, under Article 42 of the Constitution (supra), the

right to a hearing is guaranteed and under Article 44 (c) the right to a fair hearing cannot be derogated from.

- [34] Now the issue is whether the Applicants were employees of the Respondent to therefore benefit from Articles 42 and 44 (c) of the **Constitution.** - [35] In my view, the fact that the impugned act i.e, recruitment of the Applicants into the Respondent's service which led to the summary termination of the Applicants of their services and being declared *persona* non grata occurred before or during their recruitment and relates to how they were recruited, then, they never qualified to be employees of the Respondent to benefit from Articles 42 and 49 (c) of the Constitution. The appointment letters in their possession were procured illegally and through commission of an offence, conspiracy to commit an offence $C/s$ 390 P. C. A, see also Uganda Vs Ssenfuka & Ors, H. C Criminal Session No.086 of 2016. - [36] As a result of the above, I find that the Applicants were never employees of the Respondent and when it was discovered that they were wrongly and illegally drawing a salary, they were immediately removed from the pay roll and eventually declared *persona non grata* in their places of purported employment. By virtue of the fact that the Applicants were never employees of the Respondent, they are not entitled to the reliefs sought. No court can allow them to benefit from the illegalities they committed with the officials of the Respondent. They are lucky to had been merely declared *persona non grata* at their purported work places without causing for their arrest and be made to pay back the payments they had wrongly received as salaries from the Respondent. - [37] In the premises, I find this application without any merit and I accordingly dismiss it with costs to the Respondent.

Dated this 26<sup>th</sup> day of April, 2024.

**Byaruhanga Jesse Rugyema** JUDGE.