Godber Wilson Tumushabe v Makerere University (Miscellaneous Application 121 of 2023) [2025] UGHCCD 19 (14 February 2025)

#### **THE REPUBLIC OF UGANDA**

### **IN THE HIGH COURT OF UGANDA AT KAMPALA**

#### **CIVIL DIVISION**

#### **MISCELLENEOUS APPLICATION NO.121 OF 2023**

**GODBER WILSON TUMUSHABE:::::::::::::::::::::::::::::::::::::::::::: APPLICANT**

### **VERSUS**

**MAKERERE UNIVERSITY:::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

### *BEFORE: HON. JUSTICE SSEKAANA MUSA*

### *RULING*

The Applicant brought this application under Articles 28(1), 42 and 50(1) of the Constitution of The Republic of Uganda; Section 33 and 36 of the Judicature Act Cap 13 Laws of Uganda; The Universities and Other Tertiary Institutions Act, 2001; and Rules 3,6, and 7 of the Judicature (Judicial Review)Rules 2009) as amended seeking;

- *a. A declaration that the actions of the respondent's servants, of removing the applicant from the payroll and refusing to pay his emoluments for the period from December 2011 to December 2018 were illegal, irrational, unreasonable, null and void.* - *b. A declaration that at all material times the applicant has been an employee of the respondent.* - *c. A declaration that the decision of the appointments board directing the applicant not to lay any claims monetary or otherwise against the respondent for the period served by the applicant was illegal, infringed his constitutional rights, was unreasonable, and irrational, and was improperly arrived at.* - *d. A declaration that the decision/order of the respondent's staff tribunal to strike out the applicant's appeal and to decline to consider the question of*

*legality of order stopping payment was illegal, unreasonable, irrational and null void.*

- *e. An order of certiorari to issue quashing the proceedings and decision/order of the respondent's Appointment Board to the effect that the applicant should not lay claim monetary or otherwise against the University for the Period that he had previously served at University.* - *f. An order of mandamus to issue, directing the respondent to pay the applicant's accumulated salary arrears for the period from December 2011 to December 2019 amounting to Ug.shs.304,264,828/=.* - *g. An order awarding damages to the applicant for the anguish and losses occasioned by the respondent.* - *h. An order to the respondent to pay the applicant's interest on the salary arrears at the rate of 20% per annum from 1st January 2019, and on the damages at court rate from the date of judgment, till payment in full.* - *i. An order to the respondent to pay the applicant's costs of these proceedings.*

The grounds in support of the application are briefly set out in the Notice of Motion and the affidavit in support sworn by the applicant-Godber Wilson Tumushabe that;

- a. The Applicant, being employed by the respondent as Assistant Lecturer in the Human Rights and Peace Centre, School of Law, was granted study leave from 1st September 2008 to pursue doctoral studies at Stanford University, USA. - b. That having informed the respondent that he was suspending his course of study owing to financial constraints, the applicant was requested by the School of Law, to resume responsibilities, which he did with effect from 1st March 2012.

- c. That the applicant later on realized that his salaries were not being credited to his account. The applicant brought the said omission to the attention of the respondent and, subsequently, he was informed that his name had been deleted from the University payroll in December 2011, without giving him a hearing, and without any justifiable cause. - d. The applicant nonetheless continued rendering his services until the respondent directed the School of Law to stop assigning him responsibilities. - e. When the applicant continued demanding for his salaries to be paid, the respondent charged him with abscondment, nearly seven years after his removal from the pay roll. - f. That on 7th January 2019, the applicant was informed that basing on the charge and the applicant's written response thereto, the respondent's Appointment Board sentenced the applicant to a warning, directed that he be reinstated into the University service, and that he should not lay any claim, monetary or otherwise, against the University for the Period that he had served. - g. That the applicant protested the respondent's irrational decision, and also lodged an appeal with the University's Staff Appeals Tribunal, but latter simply shelved the appeal and failed to furnish the applicant with its rules of procedure, in spite of his demand for the same. - h. That the applicant then filed an application for Judicial Review in this Honorable court vide Miscellaneous Cause No: 181 of 2020 seeking redress over the aforementioned acts and commissions committed by the respondent, however, the same was dismissed for reasons that it was commenced during the pendency of an appeal before the respondent's Staff Tribunal and, therefore that the applicant had not fully exhausted that alternative procedure before coming to court. - i. That the applicant obliged to the orders of court and pursued the appeal before the Respondent's Staff Tribunal. However, the same was struck out

on a mere technicality, that it was filed out of time on the 5th day of April 2023.

j. That the respondent's actions, in particular the withholding of the applicant's emoluments violate his constitutional rights and are illegal, irrational and improper hence this application for judicial review.

The respondent filed an affidavit in reply and the same was sworn by YUSUF KIRANDA who is the respondent's secretary as well as the Accounting Officer.

- a. He stated that indeed the applicant was employed by the respondent as a teaching assistant at the Faculty of law and he was granted leave to study effective 1st September 2008 until the 31st day of August 20ll. - b. That the applicant was required to file periodic reports on his academic progress to the respondent to support him during his studies. The applicant did not inform the respondent that he had suspended his doctoral studies and neither did he return to the University immediately upon expiry of his study leave. - c. That the applicant was then deleted from the pay roll effective December 2011 three months after the expiry of his study leave as per Public Service Standing Orders. He had absconded from duty. - d. That the applicant was on several occasions invited to appear before the Staff Development Welfare and Retirement Benefits Committee (SDWRBC) concerning his study progress but he did not attend. He however later on appeared on the 6th day of February 2014 and SDWRBC referred the matter to the Appointment Board for further management. - e. The applicant was also stopped from conducting any further teaching assignments until the matter was resolved by the Appointment Board. - f. That the applicant was subsequently charged with abscondment from duty and the matter was resolved to caution the Applicant and return him to duty with effect from the date of its decision made on 19th December 2018.

g. The Applicant lodged an appeal with the Staff Appeal Tribunal against the decision of the Appointment board and at the time the affidavit was made, the tribunal had not yet rendered its decision.

When the matter came up for hearing on the 8th day of May 2024, the following issues were raised for determination by this Honorable Court.

## *Issues for Determination*

*1. Whether the decision of the appointment board to deny the applicant his emoluments from December 2011 to 31st December 2018 was proper.*

# *2. What remedies are available to the parties?*

The applicant was represented by *Counsel Dr. Benson Tusasirwe* while the respondent was represented by *Counsel Esther Kabinga*.

The court directed both parties to file written submissions and they did so and the same have been considered in this ruling.

## *DETERMINATION*

# *Whether the decision of the appointment board to deny the applicant his emoluments from December 2011 to 31st December 2018 was proper.*

Counsel for the applicant submitted that the respondent's administrative process of reaching a decision to summarily remove the applicant from the pay roll, deny him his emoluments all without giving him a chance to be heard was tainted with illegality, procedural impropriety and irrationality and therefore not proper and amenable to judicial review.

Counsel for the applicant submitted that illegality was described by *The Hon. Lady Justice Mugambe*, in the case of *Cecil David Edward Hugh vs Attorney General HCMA NO:266 of 2013* at pages 3 and 4 as

*"an error of law committed by a decision making authority in the process of taking the decision or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires or contrary to the provisions of the law or its principles are instances of illegality".*

*That the Hon. Lady Justice further cited the locus classicus case of Council of Civil Service Union and others versus Minister of Civil Service (1984)3 ALLER 935 wherein Lord Diplock had this to say on illegality;*

*"By illegality as a ground for judicial review, it means that the decision maker must understand correctly the law that regulates his decision making power and must give effect to it. Whether he has or has or not is a par excellence a justifiable question to be decided in the event of a dispute by those persons the judge, by whom the judicial power of the state is exercised."*

Counsel for the applicant further submitted that section 55 (2) of the Universities and Other Tertiary Institutions Act 2001 (as amended in 2003 and 2006) gives the respondent's academic staff a right to be heard in case of any disciplinary matter and it mandates the Secretary to the University Appointment's Board to make arrangements for a member to appear before the University Staff Tribunal in respect to the matter.

That the respondent acted illegally when it reached a decision to remove the applicant from the payroll and when it refused to pay his emoluments for the period from December 2011 to 31st December 2018 without giving him an opportunity to be heard. That the respondent further acted illegally when reached a decision communicated in its letter to the applicant dated 7th January 2019 to bar the applicant from claiming his emoluments without any justifiable cause.

Counsel for the applicant submitted that irrationality was described to exist when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards.

That in the instant case, irrationality lies in the respondent's act of first removing the applicant from the payroll, even as it directed him to report back to his work station then barring him from claiming his emoluments without any justifiable reason. That this was done without hearing from the applicant first.

Counsel for the applicant submitted that the conduct of the respondent as earlier discussed above was unfair and unjust and therefore procedurally improper. That specifically, the process of removing the respondent the applicant from the payroll without affording him a hearing was procedurally improper.

*"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 may be in non-observance of rules of natural justice or to act with procedural unfairness towards those to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute by which such authority exercises jurisdiction to make a decision."*

That the respondent's decision to remove the applicant from the payroll was effected without giving him a hearing and it thus breached the basic rule of natural justice *"audi alteram partem"* i.e nobody to be condemned unheard.

On the other hand, counsel for the respondent raised a preliminary objection to the effect that this application is no amenable for judicial review.

He stated that under Section 57 of the University and Other Tertiary Institutions Act 2001 as amended,

1."a member of staff may appeal to the University Staff Tribunal against a decision of the Appointment Board within a period of fourteen days after being notified of the decision".

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

3. "a member of staff aggrieved by the decision of the Tribunal under sub section (2) may within thirty days from the date he or she is notified of the Tribunal's decision apply to the High Court for Judicial review".

Counsel submitted that it follows that since the decision of the Staff Tribunal was made dismissing the appeal for being incompetent on the basis that it was filed out of time, the applicant's application for judicial review should have been based and or challenging the decision of the Staff Tribunal and not that of the Appointment board that was made almost four years ago.

Regarding the merits of the case, counsel for the respondent submitted that the actions of the respondents were proper and not illegal.

That the respondent took all necessary steps to have constructive engagements with the applicant after the expiry of his study leave. That the applicant was invited to appear before SDWRBC to discuss his study program and salary claims and he was accorded a fair hearing at that meeting.

When the matter was also referred to the Appointment Board for further management, the applicant was duly charged with abscondment from duty on 7th November 2018. The applicant was duly notified of the charged and he was accorded time to file a defense which he did.

The matter was referred for a mediation and it was as a result of all this that the board resolved to caution the applicant and return him to duty with effect from the date of decision among other order that were made. That the applicant appealed the decision of the board to the Staff Tribunal and the same was dismissed for being filed out of time.

Counsel concluded by submitting that all the above processes before the respondent's Organs were carried out in compliance with the law and were thus not illegal.

That the decisions of the respondents were also rational, counsel submitted. That when the applicant was granted study leave for three years, as one of the critical terms, he was required to provide periodic reports of his academic progress with the respondent to enable the respondent to continue supporting him in his studies.

That upon expiry of his study leave, the applicant did not inform the respondent that he had suspended his studies and neither did he return immediately to the University upon expiry of his term. He over stayed his leave without justification to the respondent. That the respondent was forced to trace the applicant and during this entire period, the applicant continued earning salary from the respondent for no work done.

It was upon the above background that the respondent resolved to commence disciplinary actions against the applicant, charge him with abscondment from duty and the subsequent actions then followed.

Regarding procedural impropriety, counsel for the respondent submitted that the respondent demonstrated procedural propriety in all its actions. That the respondent complied with principles of natural justice in handling the Applicant's matter. That the SWDRBC of council duly investigated the applicant's case and duly referred the same to the Appointment Board for disciplinary actions. The appointment board accorded the applicant a fair hearing. He was charged, served with the charge sheet, required to file a defense and a fair decision was reached and communicated to him. The applicant appealed against the said decision and the same was dismissed for being filed out of time. This decision was also communicated to him. The respondent prayed that this application be dismissed with costs.

## *Analysis*

*Section 36 (1) of the Judicature Act Cap 13*, provides for the power of the High Court to issue orders under judicial review. It provides as follows; "(1) The High Court may make an order, as the case may be, of- (a) mandamus, requiring any act to be done; (b) prohibition, prohibiting any proceedings or matter; or (c) certiorari, removing any proceedings or matter to the High Court."

*Rule 3 (1) and (2) of the Judicature (Judicial Review) Rules SI 11 of 2009*, provides that a party may apply for an order of prohibition, certiorari, declaration and injunction by way of judicial review in appropriate case.

*Rule 3A of the Judicature (Judicial Review) (Amendment) Rules SI 32 of 2019 provides that*; "Any person who has a direct or sufficient interest in a matter may apply for judicial review." Judicial review is not concerned with the decision in issue but with the decision making process through which the decision was made.

It is pertinent to note that the orders sought under Judicial Review do not determine private rights. The said orders are discretionary in nature and court is at liberty to grant them depending on the circumstances of the case where there has been violation of the principles of natural Justice.

The grounds for judicial review were elaborated by Justice Stephen Musota in the case **of** *Ouma Adea v Attorney General and Busia District Local Government (HCT-04CV-MA-0095-2012)***.** In this case, the court held that for an application for judicial review to succeed, the applicant must show that the decision in question was illegal, irrational, or procedurally improper**.**

In the present case, the Applicant challenges the decision of the respondent to remove him from the pay roll and refusing to pay his emoluments for the period from December 2011 to December 2018. That the same was illegal, irrational and unreasonable among other orders.

Regarding illegality, the applicant has failed to prove on a balance of probability that the actions of the respondent were indeed illegal. I am in agreement with counsel for the respondent that in fact there was no error on the side of the respondent in the process of taking the decision which is subject of the complaint.

The respondent, after the expiry of the Applicant's study leave invited the Applicant to appear before the Ad hoc Committee of the Staff Welfare and Retirement Benefits Committee (SDWRBC) to discuss the respondent's study program and salary claims.

At the committee, the applicant was accorded a fair hearing, the matter was then referred to the Appointments Board wherein the Applicant was charged with abscondment from duty contrary to Respondent's Human Resource Manual., 2009.

In working out what amounts to 'justly and fairly' treatment, the courts are wary of over-judicialising administrative process. They recognise that administrative decision-makers are not courts of law, and that they should not have to adopt the strict procedures of like a court or tribunal. The nature of the appointments board was inquisitorial /investigatory in order to obtain as much evidence as possible and arrive at an informed decision. The manner in which the proceedings were conducted was procedurally sufficient to constitute an opportunity to be heard or a hearing of the applicant fairly and justly in the circumstances of the present case.

In the case of *Kenya Revenue Authority vs Menginya Salim Murgani Civil Appeal No. 108 of 2009*. The Court of Appeal delivered itself as follows;

"*There is ample authority that the decision-making bodies other than courts and bodies whose procedures are laid down by statute are masters of their own procedures. Provided that they achieve the degree of fairness appropriate to their task it is for them to decide how they will proceed*".

The court should look beyond the narrow question of whether the decision was taken in a procedurally improper manner, to a question of whether a decision properly taken would have been any different or would have benefited the applicant. The applicant as an afterthought believes he should have been given more than what he received as a fair hearing or just and fair treatment while he appeared before the appointments board. The respondent should accord the applicant a due process in order to arrive at a decision which is fair and just as provided under Article 42 of the Constitution. In the case of *R v Chelsea College of Art and Design, ex p Nash [2000] ELR 686*, the court held that *"would a reasonable person, viewing the matter objectively and knowing all the facts which are known to the court, consider that there was a risk that the procedure adopted by the tribunal in question resulted in an injustice or unfairness"*

The applicant did not set out any evidence to prove that he was not given a fair hearing apart from merely alleging every limb of what amounts to a fair hearing and contending in submissions that they were not observed. The respondent was notified of the charge and asked to file a defense which he did. The matter was then referred to mediation and as a result, the Appointment Board took a decision to caution the applicant and return him to duty with effect from the date of taking the decision. This was all legal in my opinion.

The applicant appealed against the decision to the Staff Tribunal which under Section 57(1) of the Universities and Other Tertiary Institutions Act, dismissed the same for being incompetent as it was filed out of time.

Regarding rationality, as a critical clause of grant of the Applicant's leave, he was supposed to file periodic reports on his academic progress with the respondent so as the respondent can continue supporting him during his studies. This the applicant did not do or refused to do. It is absurd that a person who has acted irrationally and or unreasonably can turn around to claim the appointments board was irrational.

Even upon expiry of the applicant's study leave, the applicant did not immediately inform the respondent or even return to the University to resume work immediately. The applicant in addition did not inform the respondent that he had suspended his studies.

It was out of the respondent's initiative that the Respondent's Director of Human Resource made attempts in October 2011 to reach out to the Applicant to ascertain the progress of his studies. The applicant has neither in his application nor in his submissions offered an explanation for failure to file a progress report or immediately return to the University after the expiry of his leave. It from this that the respondent made the decision to delete the applicant from the pay roll and later charge him, all this action I consider rational. The conduct of the applicant cannot attract any sympathy and should not be allowed to try and benefit from his own wrongs and misconduct.

Lastly, I also I also find that the respondent followed the proper procedure in reaching its decision to delete the applicant from the pay roll (as per the Public Service Standing Orders), charge him with abscondment of duty and later caution him.

It was indeed procedurally proper for the applicant to delete the applicant from the pay roll because; the applicant's study leave had ended, he had not reached out to the respondent for any explanation for a period of three months and moreover, he continued to earn salary for this entire period.

Secondly when he was summoned to appear before the SWDRBC, the matter was sent to the Appointment Board for disciplinary action whereat, he was accorded a fair hearing and a decision reached which was communicated to him. The applicant chose to appeal the decision of the Board to the Staff Tribunal which also accorded him a fair hearing and dismissed the appeal for being filed out of time.

The applicant has failed to prove that the respondent acted illegally, irrationally and procedurally improper, I thus dismiss this application.

Each party should bear its own costs.

I so order.

*Ssekaana Musa Judge 14th February 2025*