Ekwang v Oyam District Local Government (Miscellaneous Cause 6 of 2018) [2023] UGHC 348 (21 February 2023)

# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT LIRA

## CIVIL MISC. CAUSE NO.006 OF 2018

# IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEEW

EKWANG EUGENIO ....................................

## **VERSUS**

# OYAM DISTRICT LOCAL GOVERNMENT...................................

# **RULING**

## HON . JUSTICE ALEX MACKAY AJIJI

The applicant brought this application for judicial review by notice of motion under $36(a)$ , (b) &(c) ,37 for orders that;

- 1. An order of certiorari to issue against the respondent to quash the decision of respondent through its service commission of retiring the applicant. - 2. An order of mandamus to compel respondent to reinstate the applicant to his office as Human Resource Officer. - 3. An order of prohibition against the respondent prohibiting the respondent from acting on the decision and recruiting any person to office of human resource, oyam district local Government - 4. An order that the respondent pays the applicant 's salary arrears for the months of October 2017, November 2017 and January 2018 - 5. General Damages - 6. Costs of the Application

The grounds for this application are briefly as envisaged in the affidavit in support of the application as follows;

The Applicant in this case was represented by counsel Adar Patrick and Makmot Kibwanga while the respondents were represented by Attorney General Chambers

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Both counsel made written submissions

Counsel for the Applicant submitted that the respondent did not accord a fair hearing to the applicant. That the right to a fair hearing is non derogable right not subject to any limitation pursuant to provision of Article 44(c) of the 1995 constitution of Uganda. He further cited the case of Ridge v Balwin (1964) AC 40 the House of Lords held " right to fair hearing requiring that individual should not be penalized by decisions affecting their rights or legitimate expectations unless they have been given prior notice of the case, affair opportunity to present their own case and that any decision made in breach of principles of natural justice is no decision

In reply the respondent stated that the applicant was invited for an interaction with the District Service Commission on 14<sup>th</sup> December 2017. He appeared before the commission and the applicant never raised any objection to the proceedings to the commission as to unfairness. The commission after interaction, made a decision to retire the applicant in public interest. There was no violation of the applicant's right to a fair, no procedural impropriety, unreasonableness, illegality and irregularity of the District service Commission.

## The issues to be resolved at hand are that;

- 1) Whether the decision of the Respondent to retire the applicant in public interest is lawful? - 2) Whether the Applicant is entitled to the remedies sought? - 1) Whether the decision of the Respondent to retire the applicant in public interest is lawful?

#### **JUDICIAL REVIEW**

The principles governing Judicial Review are well settled. Judicial Review is concerned with Prerogative Orders which are basically remedies for the control of the exercise of power by those in public offices. They are not aimed at providing final determination of private rights which is

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done in normal Civil Suits. The said orders are discretionary in nature and Court is at liberty to refuse to grant any of them if it thinks fit to do so even depending on the circumstances of the case where there had been clear violation of the principle of natural justice: John Jet Mwebaze Vs Makerere University Council & 2 Ors Misc. Cause No. 353 of 2005.

The discretion I have alluded to here has to be exercised judicially and according to settled principles. It has to be based on common sense as well as justice: *Moses Ssemanda Kazibwe Vs* James Ssenyondo Misc. Application No. 108 of 2004.

Factors that ought to be considered include; whether the application has merit or whether there is reasonableness, vigilance without any waiver of the rights of the applicant. Court has to give consideration to all relevant matters of the cause before arriving at a decision in exercise of its discretion. It was held in the case of *Koluo Joseph Andres & 2 Ors Vs Attorney General Misc. Cause No. 106 of 2010* and I agree that:

"It is trite law that Judicial Review is not concerned with the decision in issue per se but with the decision making process. Essentially Judicial Review involves the assessment of the manner in which the 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 the basic standards of legality, fairness and rationality."

The purpose of Judicial Review was summed up by Lord Hailsham St Marylebone in Chief Constable of North Wales Police Vs Heavens [1982] Vol. 3 All ER as follows:-

"The purpose of Judicial Review is to ensure that the individual receives fair treatment not to ensure that the authority after according a fair treatment reaches on a matter it is authorized or enjoined by law to decide from itself a conclusion which is correct in the eyes of the Court."

This court agrees with the above principles. In Rosemary Nalwadda v Uganda Aids Commission HCMA NO.0045 OF 2010 IT WAS HELD that it is trite that judicial review can be granted on three grounds namely illegality, irrationality and procedural impropriety.

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Illegality is when a decision making authority commits an error of law in the process of taking or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires or contrary to the provision of law or its principles are instances of illegality.

Irrationality is when there is such 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 decision is usually in defiance of logic and acceptance moral standards.

Procedural impropriety is when there is a failure to act fairly on the part of the decision making authority in the process of taking a decision. The unfairness maybe in non-observance of the rules of natural justice or to act with procedural fairness 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 to make decision.

Council of civil service Union vs Minister of Civil Service (1985) AC 374 court held that procedural impropriety occurs where the deciding authority fails to act fairly in the process of its decision making such as failure to observe the basic rules of justice or act with procedural fairness towards the aggrieved party. In this case the right procedure was not followed by the respondent . Hence the issue to be discussed here is procedural impropriety in relation to natural justice.

Article 42 of 1995 constitution of the Republic of Uganda provides that Any person appearing before any administrative official or body has a right to be treated justly and fairly and shall have a right to apply to court of law in respect of any administrative decision taken on him or her.

The right to a fair hearing is a non derogable right not subject to any limitation pursuant to provision of Article 44(c) of the 1995 constitution of the Republic of Uganda which provides 'that notwithstanding anything in this constitution, there shall be no derogation from the employment of the right to a fair hearing. The importance of this provision is that the right to be heard cannot be reined to any person or subjected to any limitation whatsoever "

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In the locus classicus case of Ridge v Balwin {1964] AC 40 The House of Lords held 'right to fair hearing requires that individuals should not be penalized by decisions affecting their rights or legitimate expectations unless they have been given prior notice of the case, a fair opportunity to present their own case and that any decision made in breach of principles of natural justice is no decision. Similarly, in this case, the decision to terminate the employment of the Applicant was no decision at all and he should be reinstated to his former position.

#### Fair hearing entails the following;

Article 173 of the constitution provides that the rules of natural justice and particular, the commission shall ensure that an officer against whom disciplinary proceedings are being taken;

Notice must be given in adequate terms so that the prospective victim knows the essence of the case he has to meet and can prepare his answer and should include the substance of the allegation , charge and must notify the time and place where the hearing is to take place.

The party must be given the right to defend himself and present his or her defence

It also includes allowing all witnesses to be called to their respective cases and giving each party to cross examine each party's witness as stated by court in the case Dent v Kiambu Liquor Lincsein Court {1968} E. A 80.

In the instant case after the applicant's sick leave had elapsed he still remained sick and failed to resume duty. The applicant was served with a letter on 12 December 2017(Annexture E to the applicant's affidavit. On the 14<sup>th</sup> December 2017 he was invited for an interaction which turned out to be hearing of complaint against the applicant. Though the complaint was not disclosed in the said letter and applicant was to be given adequate time to respond to the complaint. I find that the Applicant in this case was not given a fair hearing and he was retired in public interest even without giving him notice of what the interaction was going to be about, he was not given an opportunity to defend himself during the interaction meeting. What the respondent did was to just give him a retirement letter which was not proper procedure followed.

Further Section (F-t) para 4 "When a public officer is retired in public interest, he or she shall be entitled to be period of notice, any authorize earned leave and transport back to his or her

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place of domicile in accordance with subsection (A-n) Which states on termination of appointment other than in the circumstances stated in para (22) bellow notice shall be given to an officer in Accordance with the following (h) on compulsory retirement in the public interest -3months. However in this case the applicant was given 2 days' notice that is he was served on $12^{th}$ and the interaction was on the 14<sup>th</sup> December 2017.

I therefore find the respondent did not follow the right procedure. He was supposed to have given the applicant at least 3 months notice before retiring him on public interest.

## 2) Whether the Applicant is entitled to the remedies sought?

The Applicant is entitles to the following remedies;

- a) An order of certiorari quashing the decision of the respondent through the district service commission of retiring the applicant on public interest. - b) An order of mandamus is hereby issued compelling the respondent to reinstate the applicant to his office as Human Resource Officer. - c) Salary arrears be paid from October 2017 to the time of reinstatement - d) General Damages of UGX 10,000,000 (Uganda Shillings Ten Million) - e) Costs of this application awarded to the Applicant.

NB. A certificate of two counsel is hereby granted.

Dated at Lira, this $\frac{1}{2}$ of $\frac{1}{2}$ of $\frac{1}{2}$ of $\frac{1}{2}$ of $\frac{1}{2}$ of $\frac{1}{2}$ of $\frac{1}{2}$ of $\frac{1}{2}$ of $\frac{1}{2}$ of $\frac{1}{2}$ of $\frac{1}{2}$ of $\frac{1}{2}$ of $\frac{1}{2}$ of $\frac{1}{2}$ of $\frac{1}{2}$ of $\frac{1}{$

## **ALEX MACKAY AJIJI**

**JUDGE**

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