Kampala Capital City Authority v Tusiime (Civil Appeal 216 of 2017) [2024] UGCA 201 (2 August 2024)

Full Case Text

#### THE REPUBTIC OF UGANDA

#### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

## ctvlt APPEAT No. 216 0F 2017

#### (Arising out of Miscellaneous Cause No. 275 of 2015)

IO BETWEEN

# KAMPALA CAPITAL C]TY

#### AUTHORITY APPELLANT/CROSS REPONDENT

#### AND

#### TUSIIME DOREEN RESPONDENT/CROSS APPELLANT

(Appeol orising from the ruling ond Orders of the High Court (stephen Musota, ).) doted 4th April 2017)

l0 (CORAM: Hon. Mr. Justice Cheborion Barishaki, JA Hon. Mr. Justice Moses Kazibwe Kawumi, JA Hon. Justice Dr. Asa Mugenyi, JA

#### JUDGMENT OF MOSES KAZIBWE KAWUMI, JA.

This Appeal and the Cross Appeal by the Respondent arose from the Ruling and Orders of the High Court in Miscellaneous Cause No.276 of 2O!7,in which the respondent's cause was allowed with costs.

The facts of this Appeal are that sometime in 201.2, the Public Service Commission (herein after referred to as "the Commission") advertised vacant positions at Kampala Capital City Authority (hereinafter referred to as "the Appellant or Cross Respondent") including the post of Officer Prosecution.

Page 1 of 14

5 Tusiime Doreen (hereinafter referred to as "the Respondent or Cross Appellant") applied for the said post, she was interviewed and later notified by the Commission on 1st October 2012 that she was successful. The Respondent was advised to report to the Appellant,s Executive Director for further instructions.

Upon reporting to the Executive Director, the Respondent was verbally informed by the Director Human Resource that her deployment had been halted due to non-availability of funds and that communication would be made to her once the funds were availed by the Central Government. This communication was later put in a letter dated 6th October 2016.

Aggrieved with the Appellant's action, the Respondent filed an application for Judicial review on 18th October 2016 seeking for prerogative remedies including a declaration that the Respondents decision dated 16th July 2016 was illegal and un reasonable, an Order of certiorari quashing the decision postponing her deployment for being unreasonable and an Order of mandamus compelling the Appellant to deploy her. l0

The Respondent also sought to be paid salary arrears for the period she should have worked had she been deployed immediately, an award of general, exemplary and aggravated damages of UGX. 800,000,000/= (Uganda Shillings Eight Hundred Million Onty) plus costs.

.10

ln its defense, the Appellant contended that the Respondent,s claim was time barred. lt denied liability, asserting that the Respondent could not be deployed immediately due to budgetary constraints.

) The Appellant further contended that it was the duty of the Central Government to provide funds for the successful candidates however, the Ministry of Finance advised the Appellant to rationalize its budget allocation and use part of the Non Tax revenue to finance the staff structure especially the most critical posts until additional resources

were realized. l0

It was further contended for the Appellant that neither the interview nor the results and the notification of appointment from the Commission amounted to an appointment so as to amount to a contract of employment with rights and obligations to the Respondent. lt thus prayed for dismissal of the Application with costs.

ln rejoinder, the Respondent averred that the Application was not time barred and that the contents of the affidavit in reply are baseless with no proof. That the Appellant was legally bound to issue an Appointment letter and that the advertisement and appointment in Public service is subject to availability of funds. She averred that the interest of justice demands that the Application is granted.

- Upon hearing of the Application, the trial Court found that the Application was filed within the stipulated time and that it disclosed plausible grounds for judicial review. Accordingly, the trial Court, issued an order of certiorari quashing the Appellant's decision halting the deployment of the Respondent and issued an Order of mandamus compelling the Appellant to deploy the Respondent. 25 i0 - The trial Court, further issued an order of Compensation in form of damages to the Respondent equivalent to the net salary she would have earned from the date of notification of appointment being the 1st - October 201,2 to the date of Judgment. The Respondent was also awarded costs. -.i 5

Page 3 fL4

- 5 Aggrieved with the ruling and orders of the High Court, the Respondent filed a Memorandum of Appeal with four grounds framed as follows: - 1. The learned trial judge erred in law and fact when he held that the Respondent's Application for judicial review as against the Appellant was not time barred. - 2. The learned trial Judge erred in law and in fact in when he held that the Respondent's application for judicial review disclosed plausible grounds for judicial review. - 3. The learned trial Judge misdirected himself on the law on damages. - 4. The learned trial Judge erred in law and fact when he failed to properly evaluate the evidence on Court record thereby arriving at a wrong decision. 20

It was proposed for the Appellant that the Appeal be allowed and the ruling and orders of the High Court be set aside. 25

The trial judge neither made Orders in respect of other benefits that would accrue to the Respondent had she been appointed immediately nor awarded her aggravated and exemplary damages which prompted her to file the Cross appeal.

The Respondent, Cross Appealed on the following grounds; -

1. That the learned trial Judge erred in law and fact when he ruled that the cross Appellant's damages were equivalent to the compensation of net salary she would have earned from the date of notification of appointment effective 1st October 2012 lo the date of Judgment.

> Page 4 of 14 d

- 5 2. The learned trial judge erred in law and fact when he failed to consider other remunerations/entitlements apart from the Cross Appellant's net salary like NSSF, (National Social Security Fund) and medical allowances thereby arriving at a wrong conclusion. - 3. The learned trial Judge erred in law and fact when he failed to consider granting general damages, aggravated damages and exemplary damages to the cross Appellant as prayed in the lower Court thus occasioning a miscarriage of Justice.

It was proposed for the cross Appellant that; -

- a) That this Court finds that the Cross Respondent pay the Cross Appellant other remunerations/entitlements, NSSF, Medical allowance and the net salary she would have earned since 1st October 201,2 up to the date of the judgment of this Court. - b) That this Court grants the Cross Appellant aggravated, exemplary and general damages amounting to 800,000,000/= as prayed for - in the Application and for continuous withholding of the cross Appellant's deployment even after the Court ordered to deploy her. - c) That thls Court be pleased to grant all the grounds of the cross Appealas prayed. - d) That this Court be pleased to dismiss the Appeal with costs to the Cross Appellant. - i0 e) Costs of the Cross Appeal be granted to the Cross Appellant. - f) That this Honorable Court be pleased to grant an interest of 25% per annum on any amount ordered by this Court to be paid by the Appellant if any, costs of this Appeal and costs of the Appeal from the date of Judgment till payment in full.

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5 ln the alternative, the Cross Appellant prayed that if the Court does not find merit In the grounds of the cross Appeal and the prayers, it upholds the findings of the High Court.

#### Representation

time barred.

Mr. Dennis Byaruhanga from the Appellant's Directorate of Legal Affairs represented the Appellant/Cross Resppondent while Mr. Nuwagira Gerald of Nuwagira, Tusiime Advocates appeared for the Respondent/Cross Appella nt. l0

#### lssues t5

At conferencing, the following issues were raised from the grounds of Appeal and the Cross Appeal for resolution by this Court.

1. Whether the Respondent's Application for judicial review was

- 2. Whether the Respondent's Application for Judicial review disclosed plausible grounds for judicial review. - 3. Whether the trial judge misdirected himself on the law of damages. l5 - 4. Whether the trial Judge properly evaluated the evidence on record. - i0

On the cross Appeal, it was proposed that the grounds only raised one issue as below

5. Whether the Cross Appellant/Respondent was entitled to other damages /reliefs in addition to those granted in the lower Court.

Both Counsel filed conferencing notes and written submissions whlch they adopted by Court.

Pag 6ofL4

#### ) Duty of the first appellate Court

The duty of the first appellate Court is to subject the evidence adduced in the trial court to a fresh and exhaustive scrutiny. The court is mandated to make its conclusions both on the law and the facts but taking into consideration the fact that it had no opportunity to observe the witnesses during the trial.

Fr. Narcensio Begumisa & Others Vs. Eric Tibebaga. SCCA No.17 of 2000. t0

#### Ground of Appeal No.1

The learned trial judge erred in law and fact when he held that the Respondent's Application for judicial review as against the Appellant was not time barred. l5

The Appellant argued that the Respondent's application for judicial review was time barred and therefore incompetent.

Counsel relied on Rule 5 (1) of the Judicial (Judicial Review) Rules 2009 which provides 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 a good reason for extending the period within

which the application shall be made. 25

It was argued for the Appellant that the alleged cause of action arose in October 2012 when the Respondent received a notification of appointment from the Commission which mandated the Appellant to

issue her with an appointment letter. lt was submitted that the Respondent ought to have filed her Application within three months after the mandatory period for issuance of the appointment letter had lapsed. 30

Page7 of L4

- ) Counsel for the Appellant buttressed his submission with the fact that the Respondent's remedies are sought right from 2012 when she got notified of the appointment. He thus prayed this Court finds that the Suit was time barred. - On the other hand, while citing Article 42 of the Constitution of the Republic of Uganda 1995 and Section 36 of the Judicature Act, the Respondent's counsel submitted that the Appellant being a public body, it is enjoined to treat individuals and institutions that deal with it fairly and justly. Failure to do so entitles an injured party to seek for judicial review. IO - It was also submitted for the Respondent that the Appellant's decision to halt the deployment of the Respondent was made on July 2016 when a formal communication was made to her by way of a letter. l5

It was submitted that the Respondent had been kept in anticipation of deployment which made her cause of action continuous and as such,

the Law of limitation could not apply as long as she believed in the verbal information given to her by the Director Human Resources who advised her to keep checking on the Appellant. 20

Counsel for the Respondent relied on Gen. David Sejusa V. Attorney General Misc. Cause No. 176 2015 where it was held that failure by

the Army's Commission/Promotions Board to reply to the applicant's request to be retired from the army within 90 days was a continuous tort and that it was not possible to state the date when the cause of action arose.

ln rejoinder, Counsel for the Appellant faulted the trial Judge for not advancing any reason for extending the period within which the Application had to be made yet there was no such application or prayer for extension of time. i0

Page 8 fL4

- ) Counsel further submitted that the Respondent by her pleadings admitted that upon receiving the notiflcation of Appointment in 201-2, she immediately reported to the Appellant for deployment but was informed that the Appellant was unable to deploy her due to budgeta ry constra i nts. - It was argued that since the Respondent maintains that the Appellant was mandated to deploy her within one month from the date of notification by the Commission, the cause of action arose after the one month had lapsed. Counsel for the Appellant prayed that Court finds that the Application was incompetent. l0 - t5

### Consideration by the Appeal

Section 25 (2) of the Kampala Capital City Authority Act, 2010 provides for recruitments for positions below the Head of Department level to be conducted by the Public Service Commission. Regulation 25 (1) of the Public Service Commisslon Regulations provides that prior to conducting interviews for any vacant positions, the Accounting Officer of the Agency to be recruited for, is expected to confirm on the relevant form that the budget exists for the recruitment.

2s The Secretary of the Public Service Commission is thereafter required to notify the successful candidates of the interview results. The Responsible Officer in the Agency for which the recruitment was carried is required to issue appointment letters to the successful candidates within one month from the date of approval of the 30 appointment by the Public Service Commission.

Regulation 29 (1) of the Public Standing Regulations is couched in mandatory terms. The appointed officer is required to signify his /her acceptance of the appointment within one month.

Page 9 fL4 - 5 Where the offer of appointment is not accepted, the Responsible officer is required to report to the secretary of the Public Service Commission within thirty daYs. - The Appellant contends that the Respondent and many others were not appointed on account of inadequate release of funds by the Central Government. A formal communication to the effect was made to the Respondent in a letter received by her on 6th October 2016. The trial court took that to be the date when the Respondent's grounds to apply for Judicial Review arose. l0 - l5

The Respondent was supposed to be issued with the appointment letter within one month from 1't October 2012 the latest date being 1't November 2012. She claims that her appointment was for three financial years halted on verbal communications about lack of funds from the Central Government.

On 6th October 2016 when she was informed that the Appellant had not been able to recruit more employees on account of the Government's failure to release funds and she would be contacted when funds are released and/or if the halt on recruitment of staff is lifted. The Respondent was recruited after the High Court judgment and is a serving officer in the Legal Department of the Appellant.

Rule 5 (1) of The Judicature (Judicial Review) Rules, 2009 provides for an application for judicial review to 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. l0

Page of L4

- l The Respondent neither applied for extension of time nor raised any reasons that made her unable to file the Application within three months from when she was denied her appointment letter. The court alluded to the Appellant's denial to respond to the Respondent's quest to be deployed in vain. - l0

There is however no evidence on record to show that the Respondent wrote to the Appellant to be deployed from 201,2 to 7th June 2016.

The Respondent sought among other reliefs a declaration, that the Appellant's failure to adhere to its mandatory obligation to issue an appointment letter within one month from the date of approval of the appointment under Regulation 29(1) of the Public Service Commission Regulations amounted to an illegality. l5

Regulatlon 29(1) of the Public Service Commission Regulations provides: 20

# "29. Acceptance of offer of appointment.

- (L) Where o vaconcy hos been filled by the Appointing Authority, the Secretary shall notify the successful candidote and the responsible officer sholl issue o letter of offer or appointment within one month from the dote of approval of the oppointment." 25 - i0

-i5

The Regulation makes it mandatory for the successful candidate to be informed of the results of the interview and for the responsible officer to issue an appointment letter within one month. The failure by the Appellant to communicate the offer of appointment in the prescribed one month was an illegality that constituted a ground for judicial review from 1tt November 2012.

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5 The subsequent verbal communications attributed to the Director Human Resources Department are not material in considering the imperatives set out in Rule 5(1) of the Judicial Review Rules, 2009. The Respondent had to file the Application promptly after the expiry of thirty days from reporting for deployment or within three months which she either failed or ignored to do. t0

It was thus erroneous for the trial Judge to premise the extension of time for the application to be filed on the verbal promises and the anticipation by the Respondent to be recruited. There was no continuous tort as argued for the Respondent, since the matter had become actionable from the date the thirty days within which the appointment letter should have been issued expired.

The Court is alive to the mandate of the trial court to extend the time for good reasons. The reasons must however relate to the Applicant's inability to file the application in the stipulated three months. Reliance on verbal communications by the Respondent and anticipation to be employed cannot by any metrics amount to good reasons for filing a Judicial Review application within the stipulated period. )0

The justification to extend time cannot also be premised on when the communication of 26th July 2016 was issued when the Respondent had for almost four years not formally communicated to the Appellant about her plight.

lf that premise is sustained as a good reason, it would imply that the Respondent could even have filed the application after any number of years provided she had got no formal communication from the Appellant which would be against the spirit of the Legislature in stipulating a timeline for filing Judicial Review Applications.

Page L2 of L4 0

- ln Attorney General Vs. General David Sejusa; Miscellaneous Cause No.175 of 2015 a Judicial review application, the Respondent among other reliefs, sought a declaration that he had ceased to be an officer of the UPDF since the 90 days within which the Respondent ought to have officially communicated its decision to him had expired, the trial - Judge found that the failure to communicate the declsion was a continuous tort and since the applicant was entitled to a reply, no specific date could be stated as the date when the cause of action arose. The matter was appealed to this court. l0 - The Court of Appeal in Attorney General Vs. General David Sejusa. Civil Appeal No.195 of 2015 made a finding that it was erroneous for the trial judge to find that there was a continuous tort since the matter became actionable as a breach of statute upon the expiry of 90 days from the time of receipt of the Respondent's application to be retired from the UPDF. l5 l0

I am in agreement with the decision of this court in the above case in which the facts are similar to the present Appeal' The general effect of the expiration of the limitation period is that the remedy of judicial review became unavailable to the Respondent' Once a cause of action is time barred, subsequent developments cannot revive it. (See Nicholson Vs. England lt925l2 KB 93 at Page 108.)

lfind that the Appellant's failure to expressly communicate its decision within one month did not prejudice the Respondent from seeklng the remedy of judicial review with in the three months as stipulated in the Judicial review rules. .l0

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5 Statutes of limitation are not concerned with merits and are usually strict and inflexible. The extension of the time by the trialJudge to the date when the Respondent received written communication about her fate, was not a good reason and more so since the Respondent had not applied for the extension.

It should that the it is Appellant's failure to deploy the Respondent within the mandatory statutory period that led to the litigation in the two Courts, however, the Respondent was subsequently employed by the Appellant and she is a serving officer.

Article 1"26 (2) (d) of the Constitution of the Republic of Uganda 1995, enjoins this Court to promote reconciliation between the parties. On that premise, this is one of the deserving cases where each party should bear its costs to pave way for reconciliation for a smooth work environ ment.

The determination of ground 1 of the appeal sufficiently resolves this appeal.

- The following orders are issued; 25 - 1. The appeal is allowed and the decision of the High Court is set aside. - 2. The Cross Appeal is dismissed. i0 - 3. Each party shall bear its costs in this Court and in the lower Court. - j5 Dated at Kampala this day of 2024.

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Moses Kazibwe Kawumi

Justice of Appeal .+0

## THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

# CIVIL APPEAL NO, 216 OF 2077

(Arising out of Miscellaneous Cause No. 2'/6 of 2016)

(Coram: Hon. Cheborion Barishaki, Moses Kazibwe Kauumi & Dr. Asa Mugenyi, JJA.)

#### BETIVEEN

# KAMPALA CAPITAL CITY AUTHORITY:: : : : : : :: : : : : : : : : APPELLANT/ CROSS RESPONDENT.

#### AND

# TUSIIME DOREEN : : :: :: : : : : : : : : :RESPONDENT / CROSS APPELLANT

(Appeal aising from the ruling and orders of the High Court (Stephen Musoto, J.) dated 4th Apd 2017)

### JUDGEMENT OF CHEBORION BARISHAKI, JA.

I have had the benefit of reading in draft the judgement of my brother Moses Kazibwe Kawumi, JA in the above Appeal. I agree with him that this Appeal should succeed and the cross appeal fails. I also agree with the orders he has proposed as to costs that each party bears its own costs in this court and in the lower court.

Since Dr. Asa Mugenyi, JA also agrees, the Appeal is allowed and the Judgement of the High Court is set aside.

The Cross Appeal is dismissed

Each party shall bear its own costs in this court and in thc lower court.

| It is so ordered. | | | | |-----------------------|---|--------|------| | Dated at Kampala this | | day of | 2024 | | | ? | | | | | | | |

Cheborion Barishaki

Justice of Appeal

## THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CIVIL APPEAL NO. 216 OF 2OL7

(Arising out of Miscellaneous Cause No. 276 of 2016l

### BETWEEN

# KAMPALA CAPITAL CITY AUTHORITY:::APPELLANT/CROSS RESPONDENT v

TUMUSIIME DOREEN:::::::::::::::::::::::::::::RESPONDENT/CROSS APELLANT

(Appeat aising from the ruling and orders of the High Court (Stephen Musota, JA dated 4tt' Apil 2O17)

CORAM: HON. JUSTICE CHEBORION BARISHAKI, JA HON. JUSTICtr MOSES KAZIBWE KAWUMI, JA HON. JUSTICE DR. ASA MUGENYI, JA

# JUDGMENT OF JUSTICE DR. ASA MUGENYI JA

I have had the advantage of reading in draft the judgement prepared by my Learned brother, Hon. Justice Moses Kazibwe Kawumi, JA. I agree with the reasoning and orders proposed.

It so ordered.

Dated at Kampala th is.......... day ...2024

aM nyi

JUSTICE OF APPEAL