Muwonge v Kalungu District Service Commission & Another (Miscellaneous Application 132 of 2022) [2023] UGHC 414 (10 May 2023)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MASAKA MISCELLANEOUS APPLICATION NO. 132 OF 2022 MISCELLANEOUS CAUSE NO.07 OF 2022 IN THE MATTER OF THE JUDICATURE (JUDICIAL REVIEW) RULES SI. NO.11 OF 2009 IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW BY MUWONGE KASSIM. MUWONGE KASSIM::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT VERSUS**

### **1. KALUNGU DISTRICT SERVICE COMMISSION**

**2. KALUNGU DISTRICT LOCAL GOVERNMENT:::::::::::::RESPONDENTS**

#### *Before; Hon. Justice Victoria Nakintu Nkwanga Katamba*

#### **RULING.**

This Application was brought way of notice of motion under Article 42 of the 1995 Constitution of the Republic of Uganda, Sections 33, 36 and 38 of the Judicature Act Cap 13 (as amended), Rules 6,7 and 8 of the Judicature (Judicial Review) Rules 2009 and Order 52 Rules 1 and 3 of the Civil Procedure Rules SI 71-1 seeking the following orders;

1. An Order of certiorari to quash and set aside the decision of the Human Resource Officer, an agent of the 2nd Respondent in terminating the Applicant's services as a Porter in the employment of the 2nd Respondent.

2. A declaration that the termination of the Applicant's employment prior to the direction of the Permanent Secretary of the Public Service Commission is null and void, and illegal for depriving the Applicant the right to a fair hearing contrary to Article 28, 42 and 44 of the 1995 Constitution and in contravention of the Rules of natural justice and the applicable laws.

3. A consequential order declaring the Applicant as still the appointed Porter at Lukaya Town Council.

4. An order directing the 1st and 2nd Respondent to reinstate the Applicant to his position as a Porter at Lukaya Town Council.

5. An order of Mandamus directing the Respondents to rectify the names of the Applicant on the Government IPPS System.


- 6. General damages - 7. Costs of the Application.

The Application is supported by an affidavit deponed by the Applicant where he states as follows that;

1. On 6th May 2019, He was duly appointed on probation as a Porter by the Kalungu District Service Commission and posted to Lukaya Town Council.

2. He assumed duty on 8th May 2019 for a period of six months which elapsed on 8th November 2019 but that he continued working and receiving his salary from the Kalungu District Local Government as a Porter till 28th February, 2020, three months after the probation contract.

3. In November 2020, the 2nd Respondent unlawfully terminated his services on allegations of abandonment of duty, an allegation that is false.

4. He instructed his lawyers Matovu,Kateregga and Co. Advocates to pursue a labour claim against the 2nd Respondent and a notice of intention was served on the 2nd Respondent and the Ministry of Public Service.

5. The Permanent Secretary of the Ministry of Public Service tasked the Chief Administrative Officer(CAO), Kalungu District Local Government to explain the circumstances of the termination noting among others that the termination was unlawful and that the Human Resource Officer wrongly captured the Applicant's name on IPPS and even indicated that the Applicant had died.

6. In response to the inquiry, the CAO informed the Permanent Secretary that the Applicant had been dismissed for absconding from duty and that the letter addressed to his former Advocates tries to falsely justify his unlawful termination based on letters dated 11th June 2019, 26th June 2019, 20th October 2020 and 14th October 2020 and yet he never received or had any information about the letters.

7. He was never given a fair hearing.

8. The Respondents concealed the actual reasons for his termination from the Permanent Secretary in the Ministry of Public Service to defeat the ends of justice.

9. There was an internal ploy perpetrated by the Human Resource Manager of the 2nd Respondent to terminate the Applicant's employment at Lukaya Town Council and that the Human Resource Manager with impunity misspelled his name on the payment slips unduly delaying his salaries despite several reminders and that the Human Resource manager intentionally made a wrong entry on the IPPS system.


10. On the premise of the above actions, he later discovered that he had been terminated for abandonment of duty.

11. He tried to access his benefits at NSSF but he was unable to because his name had been misspelled and he was appearing in the system as deceased.

12. On the second attempt to access his NSSF benefits, his claim was halted on the grounds that his employment assignment had ended.

13. On the third attempt to access his benefits, his claim was terminated on grounds that he had forged his appointment letter because the date on the appointment letter differs from the date of appointment in the Public Service system which shows 1/10/2019.

14. During his employment, he was earning Shs. 187,000/= per month and he has suffered great financial loss in earnings amounting to Shs.5,442,140/=which he claims as special damages arising from arrears of 29 months.

15. As a result of the Respondents actions, he was greatly inconvenienced because he was without a source of income during the COVID pandemic.

For the Respondents, there are two affidavits. The first affidavit is deponed by Ocen James Andrew, the CAO of the 2nd Respondent and the Second affidavit is deponed by Kasingirwa Scovia, Secretary of the 1st Respondent.

In considering the affidavit of the Kasingirwa Scovia, she states as follows that;

1. The Applicant was duly appointed on 6th May 2019.

2. The 1st Respondent as the appointing authority has no knowledge of the Applicant's dismissal.

3. The Applicant has never been submitted to the District Service Commission for formal directive of his removal from public service or disciplinary action.

4. There is no proof, letter or minutes to show that the Applicant was terminated.

5. The special damages sought by the Applicant are unfounded.

6. The Applicant has not exhausted all remedies at law and the Application is premature.

In considering the affidavit of Ocen James Andrew, he states as follows that;

1. The Applicant was duly appointed on 06th May 2019.

2. After receiving a letter of assumption of duty and submitting the required documents for payroll access, the Applicant did not report back to his duty station.


3. On 11th June 2019, the Applicant was summoned to the rewards and sanctions committee to answer a case of unexplained absence from the station.

4. On 26th June 2019, the Applicant was issued with a warning letter as feedback on the basis of his unsatisfactory defence presented when he appeared before the committee.

5. On 20th October 2020, the Deponent received a letter from the Town Clerk of Lukaya Town Council, the Applicant's supervisor, indicating that the Applicant had again abandoned duty and was nowhere to be seen.

6. In line with the Uganda Public Service Standing Orders, the Deponent wrote to the Applicant for a written explanation regarding his absence from duty to be furnished not later than 14 days and also informed him that his salary had been suspended.

7. To date, the Deponent has never received any written explanation or communication from the Applicant concerning his abandonment of duty.

8. In the absence of the said communication from the Applicant and failure to resume duty within 30 days, the Applicant as a public officer is deemed to have abandoned duty in line with Uganda Public Service Standing orders.

9. It was the duty of the Applicant as a public officer to inform the Responsible Officer in writing of his absence from duty.

10. Following failure of the Applicant to explain his abandonment of duty, the Applicant is liable to be submitted to the appointing authority for a formal directive of his removal from public service.

11. The Applicant has not been submitted to the District Service Commission for disciplinary action because he abandoned his duty station.

12. The Applicant has never been terminated from public service and there is no proof of the same.

13. There is no proof that the Applicant has ever lodged a labour complaint with the District Labour Officer.

14. When the Permanent Secretary of the Ministry of Public Service requested for information of the circumstances of the Applicant's alleged termination, the Deponent responded and informed him among others that the Applicant had abandoned duty.

15. In the letter dated 11th June 2019, summoning the Applicant to appear before the Rewards and Sanctions Committee, the letter was duly served upon the Applicant and he acknowledged service by appending his signature.


16. Regarding letters dated 26th June 2019 and 14th December 2020, the letters were sent the Applicant's duty station from which he had absconded and this explains why he did not receive the letters or any information about them.

17. Having absconded from duty, the Applicant is liable for disciplinary action by the appointing authority and the same is long overdue.

18. There is no internal ploy against the Applicant.

19. The claim for special damages by the Applicant is unfounded.

20. The Applicant has not exhausted all remedies at law and as a result, the Application is premature and in breach of the law.

In rejoinder, the Applicant stated as follows that;

1. There is no legal requirement for employees in public service to sign attendance sheets to prove that they have worked.

2. He was informed by the Human Resource Officer that he was not going to be paid for the months of July, August and September 2019.

3. Whereas the Applicant worked and received his salary for the month of June 2019, upon threat to withhold his salary, he reported and worked consistently at his duty station without pay for the three months.

4. When he had no received his pay for the month of July, he reported to the 2nd Respondent's Human Resource Officer and requested her to rectify and enter the correct date of his appointment as 6th May 2019 instead of 1st October 2019 in the IPPS Government System which was not done.

5. The error is explained by the fact that the 2nd Respondent's Human Resource Officer (HRO) intends to conceal the fact that she had unlawfully, maliciously and unjustifiably refused to pay the Applicant's salary for 3 months.

6. When he approached the HRO for the second time, she started a witch hunt and maliciously indicated him in the system as deceased.

7. The conduct of the HRO created a hostile work environment and forced the Applicant to leave the service when she abused her authority and made a false entry in the System that the Applicant's assignment had ended on 31st October 2020 due to abandonment of duty.

8. He continued working at the duty station until 25th November 2020.

9. He has never received any warning letters.


10. His official phone number is 0701978185 but he was never contacted by either the 1 st Respondent or the 2nd Respondent's officials.

11. There was no basis for suspension of his salary on 14th December 2020 yet his employment had been terminated on 31st October 2020 without notice.

Both Parties filed written submissions.

Before delving into the substance of the Application, the parties raised preliminary objections which are;

**1. The Affidavit in reply filed for the Respondent was filed out of time and the same should be struck out with costs.**

2. **The Affidavit deponed for the 2nd Respondent is incurably defective.**

3. **Whether the present application is incompetent for failure to exhaust all alternatives remedies.**

While considering the above preliminary points, I shall also consider;

**Whether the 1st Respondent is a proper party to this Application.**

#### **Submissions for the Applicant.**

### **1. The Affidavit in reply filed for the Respondent were filed out of time and the same should be struck out with costs**

Counsel submitted that the Application was filed in Court on 17th day of August 2022 and served on the Respondents on 25th August, 2022. That the Applicant never received any reply from the Respondent but only discovered that the Respondents had filed a reply on 13th October 2022, 6 weeks after having been duly served with the Application. Counsel relied on Order 49 Rule 2 and Order 8 Rule 1(2) of the Civil Procedure Rules and the case of Stop and See (U) Ltd versus Tropical Africa Bank Ltd HCMA. No.333 of 2010, to support his submission that all affidavits in reply ought to be filed within 15 days of service of the Application and failure to file an affidavit in reply within 15 days would put a defence or affidavit in reply out of time. Once a party is out of time, he or she needs to seek leave of Court to file the Defence or affidavit in reply out of the prescribed time.

Counsel also relied on the case of Patrick Senyondwa and Another versus Rose Nakito, HCMA. No.1103 of 2018.


While relying on the case of Uganda Revenue Authority versus Uganda Consolidated Properties Ltd, CA No.31 of 2000, Counsel then submitted that reliance cannot be placed on Article 126(2)(e) of the Constitution because time limits set by the statutes are matters of substantive law and not mere technicalities and must be strictly complied with.

Counsel also relied on the authority of Kitaka Peter and 12 others versus Muhamood Thoban CA. No.20 of 2021 and submitted that a party who fails to file a defence has no locus standi and cannot be heard.

#### **2. The Affidavit deponed for the 2nd Respondent is incurably defective.**

Counsel submitted that it is a requirement under Section 6 of the Oaths Act Cap 19, that a Commissioner of Oaths or notary public before whom any oath or affidavit is taken or made shall state truly in the jurat or attestation at what place and on what date it is taken or made however, the 2nd Respondent's affidavit in reply does not bear the date it was taken or made. Counsel relied on the authority of Bakikudembe Jumba Peter and Another versus Jaggwe and Another HCMA. No.976 of 2012 to support the assertion that such an affidavit in incurably defective.

#### **Respondents' reply to the Applicant's preliminary points of law raised.**

# 1. **The Affidavit in reply filed for the Respondent were filed out of time and the same should be struck out with costs.**

In relying on the case of Dr. Lam Lagoro James versus Muni University, HCMA. No. 007 of 2016, Counsel submitted that the principles applicable to written statements of defence do not apply to affidavits.

Counsel further submitted that in Stop and See (U) Ltd versus Tropical African Bank Limited (supra), the affidavits in reply had been filed almost 5 months after service and that the affidavit in the above case had been sworn by an advocate of the firm.

Counsel further submitted that there is no prejudice caused and that the Application should be disposed based on its merits. The Applicant was even able to file rejoinder.

### **2. The Affidavit deponed for the 2nd Respondent is incurably defective.**

Counsel submitted that the allegations by the Applicant's Counsel in the submissions on the affidavit not bearing a date on which the affidavit was deponed are unfounded


and not supported by any evidence. That the Applicant's Counsel is giving evidence from the bar.

He submitted that the 2nd Respondent's affidavit clearly shows that the affidavit was deponed on 6th October 2022 and filed in Court on 13th October 2022. Counsel submitted that the authorities relied on by the Applicant's Counsel do not apply.

#### **2. Whether the Present Application is amenable for judicial review.**

It was Counsel for the Respondent's submission that before an Application for judicial review can be entertained, the Court must satisfy itself that the aggrieved person has exhausted the exisiting remedies available within the public body or under the law as provided for Under Rule 7A(1)(b) of the Judicature (Judicial Review) (Amendment) Rules 2019.

It was submitted that the present Application is premature because the gist of the Applicant's case is unlawful termination from employment which in essence is an employment dispute and the immediate remedy was to lodge a complaint with the labor officer in accordance with Section 93(1) of the Employment Act 2006.

It was submitted that there is no evidence to show that the Applicant before filing the present application made any attempt to try and explore the obvious remedy available to him in breach of the above mentioned legal provision.

It was further submitted that there is no decision to terminate the Applicant's employment.

#### **Applicant's Reply.**

Counsel submitted that the present application is not purely a labour dispute and the Court also has unlimited jurisdiction under Article 137(1) of the Constitution to determine the Application whether it is a labour dispute or not.

Counsel relied on Dr. Badru Ssessimba versus Nakaseke District Service Commission and Nakaseke District Local Government, HCMC. No.16 of 2018, to support the submission that the Court has discretion to give remedies in judicial review even if alternatives remedies exist.


Without prejudice to the above, Counsel submitted that Article 166(1)(e) of the 1995 Constitution provides that the Public Service Commission hears grievances and the Applicant duly lodged a complaint and since the complaint was not properly handled, the Applicant decided to lodge this Application.

Counsel submitted that the Application is amenable to judicial review because the Applicant had exhausted all administrative remedies.

#### **Submissions on merits of the Application.**

# **Whether the Applicant's dismissal was illegal and justifies remedies under judicial review.**

It was Counsel for the Applicant's submission that the Applicant's employment was terminated by the Respondents without the Applicant being given an opportunity to be heard which violates his right under Article 42 of the Constitution of the Republic of Uganda. Counsel also relied on the case of Associated Provincial Picture House Limited v Wednesbury Corporation [1948]1 K. B 223 to support his submission.

It was also Counsel's submission that the Applicant was in continuous employment of the 2nd Respondent at the time of his unlawful dismissal. Counsel relied on Section 67(2) of the Employment Act to support his submission that the probationary period upon employment does not extend beyond 6 months. Counsel relied on the case of M/S Akello Beatrice versus World Vision Uganda HCCS. No.072 of 2007.

It was then submitted that the Applicant though being in continuous employment was never given an opportunity to be heard before his dismissal from employment.

On the remedies, Counsel prayed that this Court finds the dismissal unfair and illegal and that the Respondents should be ordered to reinstate the Applicant. Counsel cited Section 71(5)(a) of the Employment Act, 2006.

It was also Counsel's submission that the reinstatement would help the Applicant access his social security funds.

That the Applicant has incurred a lot of unnecessary Costs in pursuing reinstatement. **Respondents submissions in reply.**

Counsel while relying on the authority of Associated Provincial Picture Houses Limited versus Wednesbury Corporation [1947] 2 ALL ER 680, submitted that there are limited

 circumstances where Court will review exercise of Administrative discretion which is in cases of illegality, irrationality or procedural impropriety.

Counsel submitted that for an Applicant to succeed in judicial review, they ought to plead and prove that the decision reached was arrived at illegally, irrationally or there were procedural flaws in reaching the decision.

In relying on the authority of Dr. Kitara David Lagoro versus Gulu University, HCMC. No.10 of 2017, he submitted that a public authority will be found to have acted unlawfully if it has made a decision or did something, without the legal power to do so or without complying with the rules of natural justice.

That it is the Applicant's contention that his employment was terminated without being accorded a fair hearing however, there is no proof of any termination.

Counsel submitted that under the Uganda Public Service Standing Orders 2021 under (A-O) Section 18, it is the responsibility of any public officer to inform the Responsible Officer in writing about his or her absence from duty. Under Section 19 thereof, a Responsible officer has power to require in writing a public officer who is absent from duty for more than 14 days to resume duty immediately with a written explanation for his or her absence however, even after the Applicant was informed to explain his absconding from duty, he did not respond where after, his salary was suspended.

Counsel further submitted that a public officer's salary may be suspended for absconding from duty and this is supported by Section 20 of the Uganda Public Service Standing orders 2021 however, suspension of salary does not constitute termination from employment.

He submitted that the Applicant has failed to adduce evidence to satisfy the fact that he was terminated from employment.

In rejoinder, Counsel reiterated his submissions in support and further submitted that evidence supports the fact that the Applicant was dismissed without notice or a fair hearing.

### **Determination of Application.**


Having carefully considered the affidavits and submissions of Counsel. I now proceed to determine this Application.

### **Preliminary points of law.**

In my opinion, I consider it prudent to first deal with the issue of;

### **Whether the 1st Respondent is a proper party to this Application.**

On perusal of the 1995 Constitution and the Local Government Act, it is not provided that the District Service Commission is a separate legal entity with the capacity to sue or be sued.

In considering Sections 54 and 58 of the Local Government, *Section 54(1)* only provides that there shall be a District Service Commission for each district while *Section 58* of the *Local Government Act* provides that**;** Subject to Article 166(1)(d) of the Constitution, the district service commission shall be independent and shall not be subject to the direction or control of any person or authority.

It is my observation that the District Service Commission is not a separate legal entity on its own with the capacity to sue and be sued but it is simply part of the Local Government of a District and any grievances against the District Service Commission are brought against the Local Government which on its own is a separate legal entity with the capacity to sue and be sued although the District service Commission operates independently and is not subject to control by any other person or entity. (see; *Nampaya Yahaya and others versus Iganga District Local Government, HCCS. No. 101 of 2007* and *Joseph Omuron versus Public Service Commission, HCMC. No. 200 of 2009* in

support of the above proposition.)

It is therefore my finding that the 1st Respondent is a non-existent body and is hereby struck off and the Application shall continue only against the 2nd Respondent.

#### **2 nd Preliminary point of law.**

## **The Affidavit deponed for the 2nd Respondent is incurably defective.**

The gist of the Applicant's contention is that the Affidavit is undated in contravention of Section 6 of the Oaths Act and as a result, the Deponent never appeared before the Commissioner for oaths while the Respondent contended that the Applicant's contention is unfounded and not supported by evidence.


In *Male Mabirizi versus Attorney General, Supreme Court Miscellaneous Application No.7 of 2018*, it was observed that an undated affidavit is not fatally defective and is therefore curable.

I cited the above authority, to support the fact that although an affidavit is not dated, it is not fatally defective as Counsel for the Applicant submits.

Be that as it may, on perusal of the affidavit filed by the 2nd Respondent, it is dated 06th October 2022 and was commissioned in compliance with Section 6 of the Oaths Act.

However, as earlier observed, the 1st Respondent is not separate legal entity with capacity to sue or be sued and is therefore a nonexistent party. As a result, the affidavit in reply filed on behalf of the 1st Respondent was filed on behalf of a nonexistent body and is hereby struck off the record.

**3 rd Preliminary Point.**

## **The Affidavit in reply filed for the Respondent were filed out of time and the same should be struck out with costs.**

It was submitted that the Affidavit was filed out of time without leave and the affidavit ought to be struck out.

Counsel conceded that the affidavit had been filed out of time but prayed that Court exercises its discretion to accept the affidavit out of time because delay in filing was not inordinate and further, no injustice was occasioned.

In considering the authority as *Stop and See (U) Ltd versus Tropic Africa Bank Ltd (supra)*, as relied on by Counsel for the Applicant, it is my opinion that the facts therein, are distinguishable from the facts before in this Application. Firstly, the case above was concerned with an interlocutory application which is not the case here in. Secondly, the affidavit in the Application was filed almost six months after the Application had been filed.

In considering also considering the case of *Patrick Senyondwa and Another versus Rose Nakito, HCMA. No.1103 of 2018,* it is observation that the Judge in the case never exercised leniency because the affidavit in the case was filed more than 4 months beyond the time which it ought to have been filed.


It also my observation that though Counsel for the Applicant also relied on *Uganda Revenue Authority versus Uganda Consolidated Properties Ltd (supra),* the facts there in are distinguishable from the ones before this Court because Uganda Revenue Authority versus Uganda Consolidated Properties Ltd was concerned with an Application to the Tax Appeals Tribunal having been filed out of time.

In *Ramgarhia Sikh Society and others versus Ramgarhia Sikh Education Society Limited and others, HCMA. No.352 of 2015* which also considered the decision in Stop and See (U) Ltd (supra), it was observed that though an affidavit has been filed out of time, a Court may exercise it discretion to admit the affidavit out of time in the interest of justice.

In the instant case, the affidavit in reply was filed less than a month outside the time frame, secondly it is in the interest of justice that the real issue between the Parties is conclusively resolved.

The circumstances of the delay also warrant Court to exercise leniency to admit the affidavit out of time and, the Applicant did not complain of any injustice occasioned by the delay. Consequently, the affidavit is admitted albeit having been filed out of time. The Preliminary is hereby over ruled.

#### **4 th Preliminary point.**

### **Whether the present Application is amenable for Judicial review.**

Respondent's Counsel contends that the Application is not properly before this Court because the Applicant did not exhaust all alternative remedies and that the immediate available remedy was a complaint to the labour officer while Counsel for the Applicant contends that the exhaustion of all alternative remedies is not mandatory.

*Rule 5 of the Judicature (Judicial Review) (Amendment) Rules, No. 32 of 2019* introduces *Rule 7A* into the principal Rules*. Rule 7A (1)* thereof lays out the factors to consider in handling applications for judicial review and provides as follows**;**

**"7A. Factors to consider in handling applications for judicial review.**

**(1) The Court shall, in considering an application for judicial review, satisfy itself of the following—**


**(a) that the application is amenable for judicial review;**

# **(b) that the aggrieved person has exhausted the existing remedies available within the public body or under the law; and**

# **(c) that the matter involves an administrative public body or official." [Emphasis added]**

It is an agreed fact that the Applicant was duly appointed as a porter by the 1st Respondent to be in service of the 2nd Respondent which is a local authority. (Local Government Authorities).

Under *Article 166(1)* of the *Constitution*, the Public Service Commission is mandated to hear and determine grievances from persons appointed by the District Service Commission. In also considering *Section 59(2)* and *59(3) of the Local Government Act (as amended)*, the provisions are to the effect that a person aggrieved by the decision of the District Service Commission appeals to the Public Service Commission. The decision of the District Service Commission remains valid and until over turned by a decision of the Public Service Commission and the decision of the Public Service Commission is final.

It is Counsel for the Respondent's contention that the Applicant ought to have lodged a complaint with the labour officer under Section 93 of the Employment Act.

*Section 93(1)* of the *Employment Act 2006* provides that; *Except where the contrary is expressly provided for by this or any other Act, the only remedy available to a person who claims an infringement of any of the rights granted under this Act shall be by way of complaint to the labour officer.*(Emphasis is mine).

In giving an ordinary meaning to the wording in the above provision, it is my opinion that the provision provides that except where there are other remedies expressly provided by law, complaints arising out of employment shall first be submitted to the Labour Officer.

As I observed earlier, Article 166(1) of the Constitution, Section 59(2) and Section 59(3) of the Local Government Act are the exception and the provisions expressly provide for grievances by persons appointed by the Local Government Commission and the


grievances are to be submitted to the Local Government Commission where after an appeal lies with the Public Service Commission. It was therefore not necessary for the Applicant to lodge a complaint with the labour officer.

I have considered the authority of *Ssessimba versus Nakaseke District Service Commission and Nakaseke District Local Government, HCMC. No.16 of 2018* and it is my opinion that the Application therein is similar to the one before me.

In the above case, the Applicant was dismissed from employment without a fair hearing however, prior to instituting judicial review proceedings, the Applicant had not followed the procedure provided under the Article 166(1) of the Constitution which provides that when a person is appointed by the District Service Commission and they later have a grievance, the grievance is supposed to be heard and determined by the Public Service Commission.

In light of the above, it was still held that the Application was properly before the Court. Court put into consideration the fact that though the Applicant had not lodged a complaint to the Public Service Commission, the Ministry of Public Service was part of the decision making process. Court further observed that it is not mandatory to exhaust all remedies but it is advisable to exhaust all remedies.

In also considering the case of *Byansi Henry versus Nkumba University and 2 others, HCMC. No.31 of 2017*, it was held that Courts have a discretion to grant the remedies sought in judicial review even when other alternative remedies exist.

In applying the observations above to the Application before this Court, it is not in dispute that the Applicant was duly appointed by the Respondents.

On record is a letter dated 28th July 2021 addressed to the Chief Administrative Officer of the 2nd Respondent from the Permanent Secretary of the Ministry of Public Service requesting for information on circumstances pertaining to the dismissal of the Applicant and why the Applicant's details are wrongly captured in the IPPS Government System. On record is also a letter addressed to the Applicant's Advocates dated 4th October 2021 from the Ministry of Public Service and the letter indicates that the Applicant absconded


from duty and the Permanent Secretary based his response to the Applicant's Advocates on information furnished by the Chief Administrative Officer of the 2nd Respondent.

It is my finding that the Applicant duly considered remedies provided by law when he filed a complaint with the Ministry of Public Service as required by Article 166(1) of the Constitution and Section 59 of the Local Government Act and there was a response to the complaint which the Applicant considered unsatisfactory resulting in this Application.

Be that as it may, Court still has jurisdiction to grant him the remedies sought in judicial review even without exhausting all alternative remedies.

It is my finding this Application is properly before this Court and the Preliminary point is over ruled.

## **Merits of the Application.**

## **Whether the Applicant's dismissal was illegal and justifies remedies under judicial review.**

Judicial review of administrative action is a procedure by which a person who has been affected by **a particular administrative decision, action or failure to act by a public authority**, may make an application to the High Court, which may provide a remedy if it decides that the authority has acted unlawfully. (see: *Arua Kubala Park Operations and Market Vendors' Cooperative Society Limited versus Arua Municipal Council, HCMC. No.3 of 2016*)

Court will interfere with the decision of the Authority where it is proved that;

(I) There was an *illegality*: which means the decision-maker must understand correctly the law that regulates his decision making power and must give effect to it.

(ii) *Irrationality*: which means particularly extreme behavior, such as acting in bad faith, or a decision which is "perverse" or "absurd" that implies the decision-maker has taken leave of his senses. Taking a decision which is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.


(iii) *Procedural impropriety*: which encompasses four basic concepts; (1) *the need to comply with the adopted (and usually statutory) rules for the decision making process*; (2) *The common law requirement of fair hearing*; (3) *the common law requirement that the decision is made without an appearance of bias*; (4) *the requirement to comply with any procedural legitimate expectations created by the decision maker*. (see: *Eberuku Pius versus Moyo District Local Government, HCMC. No.05 of 2016* and *Associated Provincial Picture Houses Limited v Wednesbury Corporation [1947] 2 ALL ER 680: [1948] 1 KB 223)*

Counsel for the Applicant contends that the Applicant was dismissed from employment without being accorded a fair hearing. Counsel for the Respondents on the other hand contends that there is no evidence that the Applicant was ever dismissed and further, the Respondents were well within rights as provided by law, to suspend the Applicant's pay for absconding from duty.

Since judicial review concerns scrutiny of decisions reached by Public Authorities, Court will have to consider two aspects;

1. Whether the decision to halt the Applicant's salary was justified.

2. Whether there was decision terminating the Applicant's employment and if so, whether the decision was justified.

I shall first consider the decision to halt payment of the Applicant's salary on account of abandonment of duty.

In considering the evidence, it was stated by the 2nd Respondent that after the Applicant had received the letter of appointment and submitted documents for the pay roll access on 20th May 2019, the Applicant did not report back to his duty station.

As a result, a letter dated 11th June 2019 was addressed to the Applicant requiring him to appear before the Rewards and Sanctions Committee to answer for his absence from his duty station. The letter was attached and marked B. It was further stated that the Applicant duly appeared before the Committee but his answer having been unsatisfactory, the Applicant was let off with a warning dated 26th June 2019. The warning letter was marked as C.


It was then stated that on 20th October 2020, the Town Clerk of Lukaya Town Council addressed a letter to the 2nd Respondent indicating that the Applicant had again abandoned duty and that based on this information, the Chief Accounting Officer in line with the Standing Orders, wrote to the Applicant for a written explanation regarding his absence from duty within 14 days and that his salary would also be suspended forth with. The letter was dated 14th December 2020 and marked E. It was also stated for the 2nd Respondent that the Applicant acknowledged receipt of the letter dated 11th June 2019 but the letters dated 26 th June 2019 and 14th December 2019 were sent to the duty station of the Applicant and his non receipt of the same is largely based on the fact that he was absent from the duty station.

It is my observation that the Applicant never disputed receipt of the letter dated 11th June 2019. However, the Applicant stated that he never received the rest of the letters and he was thus condemned unheard.

With the above in mind, I come to a conclusion that there was first complaint about the Applicant's abandonment of duty which ended in a warning. Thereafter, there was a second complaint against the Applicant which was to the effect that the Applicant had again abandoned duty. This complaint later resulted in a letter being addressed to the Applicant to explain the circumstances of his abandonment of duty and also to inform him that his salary was being halted with immediate effect. An Officer of the 2nd Respondent sent this letter to the Applicant's duty station.

*Regulation 37* of the *Public Service (Commission) Regulations 2009* provides as follows;

*(1) Where an officer absents himself or herself from duty without reasonable cause or fails to report his or her absence from office, the responsible officer shall-*

*(a) Notify the officer to that effect within 14 days from the date of absence from duty and;*

*(b) Call upon the Officer to explain his or her absence from duty within a period of 14 days from the date of the letter of notification. (emphasis is mine)*

*(2) Where the officer fails to show cause, the Responsible officer shall-*

*(a) Immediately stop the payment of the salary of the Officer;*

 *(b) Report to the secretary in a detailed memorandum including appropriate recommendations on the abandonment of duty by the Officer.*

In also considering the Public Service Standing Orders, *Section A( A-n)* of the *Public Service Standings Orders. Paragraphs 18* and *19* provide that a Responsible officer shall require an officer who has been absent from duty for 14 days to resume duty immediately with a written explanation for his absence and that in the absence of communication from the officer and failure to resume duty within 30 days, the officer shall be deemed to have abandoned duty. The Responsible Officer shall stop the salary immediately and submit to the Appointing Authority for a formal directive of his or her removal from the public service on abandonment of duty.

It is my opinion that Section A(A-n), Paragraphs 18 and 19 is not express or specific on the need for notification however, it implies that there ought to be some form of communication between the Responsible officer and the absentee public officer before any salary payment to the public officer may be halted.

Be that as it may, the wording of Regulation 37 is quite clear that before a decision is taken regarding a Public officer who abandons duty, he/she must have been notified of the circumstances.

As to how the Public Officer is notified, I make reference to *Regulation 50 of the Public Service (Commission) Regulations 2009* which provides for service of documents and it is to the effect that;

*Where under the provisions of these regulations—*

*(a) it is necessary either—*

*(i) to serve any notice, charge or other document upon a public officer; or*

*(ii) to communicate any information to any public officer by reason of such officer having absented himself or herself from duty; and*

*(b) it is not possible to effect the service upon or communicate such service upon or communicate the information to the officer personally;*

*(c) it shall be sufficient if the notice, charge or other document, or a letter containing the information, is served upon such officer by registered post to his or her known address. (emphasis is mine).*

From the above provisions, notification takes two forms. First, where the Public Officer is informed personally or secondly, where the document is served upon the public officer by registered post to his or her known address.

By the 2nd Respondent's own admission, the letter dated 14th December 2020 requiring the Applicant to explain his absentia from duty and informing him of the fact that his salary was being halted with immediate effect was sent to his duty station. It was never served him on personally or addressed by post to his known address as required by the Regulations. I also note that no further effort was taken to notify the Applicant of the circumstances surrounding the halting of his salary before the decision was made even in light of all other existing modes of communication. I have considered the attendance lists adduced by the 2nd Respondent that allude to the Applicant's absence from work but this is information that ought to have been made part of the notification to the Applicant or part of any disciplinary procedure to be taken prior to reaching the decision to halt his salary.

The purpose of informing the Applicant is to give him an opportunity to explain himself and show cause why his salary should not be halted.

It is therefore my finding that though the 2nd Respondent had the authority to suspend the Applicant's salary, the Applicant was never notified as required by law and this also resulted in the Applicant being condemned without being given an opportunity to show cause why payment of his salary should not be halted.

In *Twinomuhangi vs Kabale District and Others [2006] HCB 130,* Court held that; "*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 fairness towards one affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative instrument by which such authority exercises jurisdiction to make a decision*."

While considering the above holding, I come to the conclusion that the 2nd Respondent's decision to suspend the Applicant's salary was tainted with procedural impropriety due to non-compliance with procedural provisions that is; the requirement for notification to be issued to the Applicant prior to reaching a decision to suspend


payment of his salary for abandonment of duty and this also resulted in the Applicant being condemned without being given an opportunity to show cause as required by the Regulations.

I now consider; Whether there was a decision terminating the Applicant's employment and if so, whether the decision was justified.

It is the 2nd Respondent's contention that there is no minute or letter that indicates that the Applicant was terminated from employment and that the Applicant is still employed by the 2nd Respondent.

The Applicant on his part contended that he was dismissed based on a system generated report from Government Integrated Personnel and Payroll System (IPPS). The Applicant produced photostats of report from Government Integrated Personnel and Payroll System (IPPS). The Photostats were all collectively marked B.

The photos indicate that according the system report, the Applicant's account on the system was created on 24th May 2019. Another photostat indicates that the Applicant's employment started on 1st October 2019 and ended on 31st October 2020 and the assignment ended due to abandonment of duty.

It is my observation that the 2nd Respondent never challenged the authenticity or contents of the report from the payroll system or the entries made therein.

This court will therefore consider evidence with regard to the pay roll as admitted. (see: *Kaggwa versus Olal and 6 others, HCCA. No. 10 of 2017, for the proposition that an allegation of fact not specifically traversed will be taken to be admitted*)

I also consider that by the 2nd Respondent's own admission, it is the 2nd Respondent's position that the Applicant started his assignment in May 2019 and has never been terminated from employment and in this Court's view, the entries in the pay roll system indicating that the Applicant's assignment had started in October 2019 and ended in October 2020 or that the Applicant has since passed on become unjustified and unreasonable.

In *Associated Provincial Pictures Houses Ltd vs Wednesbury Corporation (1984) K. B 223,* it was stated that irrationality is born out instances when the decision making


authority acts so unreasonably that in the eyes of the court hearing the application, no reasonable authority properly directing itself to the facts and the law would make such decisions.

If the 2nd Respondent by its own admission has never terminated the Applicant's employment by notice or by any recognized disciplinary process, it is my finding that it was unreasonable and unjustified to indicate in the payroll system that the Applicant's employment came to an end or that the same started in October 2019 or that the Applicant is deceased.

### **Remedies.**

Having found that the decision to halt the Applicant's salary was tainted with procedural impropriety, the decision is here by quashed.

Having also found that the Applicant is still an employee of the 2nd Respondent and that it was unreasonable and unjustified to indicate in the payroll system that the Applicant's employment came to an end or that the same started in October 2019 or that the Applicant is deceased, the decision to indicate in the system as such is hereby quashed and it is my finding that the circumstances warrant an order against the 2nd Respondent to rectify all the Applicant's details in the payroll system.

## **General damages and Specific Damages.**

Judicial Review is mostly concerned with the decisions reached by the Public authority and rectification of such decisions but the Court may award damages in rare cases.(see; *Ochengel Ismael and another versus Attorney General, HCMC. No.274 of 2019).* In *Uganda Wild Life Authority versus Kuluo Joseph and others, Court of Appeal Civil Appeal No.3 of 2011***,** while considering an appeal from an Application for judicial review, the Learned Justices of Appeal observed that the Court is empowered to put the aggrieved party in a position as though the acts complained of had not occurred.

### **General damages.**

In *El Termewy v Awdi & 3 Ors, HCCS. No. 95 of 2012*, it was observed that general damages are the direct probable consequences of the act complained of. Such


consequences may be loss of use, loss of profit, physical inconvenience, mental distress, pain and suffering and the general damages are awarded at the discretion of Court. I find Ugx. 2,000,000/- sufficient in the circumstances.

### **Specific damages.**

Special damages must be specifically pleaded and proved, but that strictly proving does not mean that proof must always be documentary evidence. (See; *Gapco (U) Ltd Vs A. S. Transporters (U) Ltd CACA No. 18/2004* ).

There is no dispute to the fact that the Applicant was earning Ugx. 187,660/- per month. It was the Applicant's assertion that he stopped receiving his salary in July 2019 but he consistently performed his duties without pay. By the Applicant's own admission, he stopped executing his duties on 25th November 2020 having left the work place. The Respondent never challenged the Applicant's assertion of non-payment but the Respondent contended that the halting of payment was justified because the Applicant did not execute his duties.

The 2nd Respondent attached an attendance sheet to prove the Applicant's absentia from work. In reply, the Applicant contended that there is no requirement to sign an attendance sheet as proof of having worked.

Simply put, an employment contract is one where, the employer remunerates an employee for work done. Therefore, in order to warrant a payment of the purported salary due, the question this Court must answer is whether the Applicant duly executed his duties to warrant payment of the salary purportedly due.

Besides the Applicant's assertions that he duly executed his duties, there has been no other evidence to support the assertions. In considering the record of attendance furnished by the Respondent, it is my observation that this evidence greatly supports the Respondent's assertion that the Applicant absconded from duty. I note that the Applicant stated that there is no requirement to sign the record of attendance however, it is my observation that the Applicant did not furnish any other proof that they duly attended to and executed the duties under employment contract to warrant payment of the purported salary due.

In most cases involving employment, there is normally no dispute that an employee carried out their duties however, in a case such as this where there is a dispute as to


whether an employee carried out his/her duties, it is necessary to provide sufficient evidence to prove attendance and execution of such duties which in my view the Applicant did not do.

As a result, it is my finding that the circumstances do not warrant an award of the purported salary due because the Applicant failed to prove that he duly exercised his duties to warrant a pay of salary.

## **Orders**

1. The 2nd Respondent's decision suspending the Applicant's salary effective 25th November 2020 is hereby quashed.

2. The 2nd Respondent is hereby ordered to rectify the Applicant's details in the payroll system within 21days from receipt of this ruling.

3. The Applicant shall hereby resume duty with immediate effect.

4. The 2nd Respondent shall pay Ugx. 2,000,000/= as general damages to the Applicant.

5. Costs of this Application are awarded to the Applicant.

I so order.

Dated at and delivered electronically Masaka this 10th day of May 2023.

# **Victoria Nakintu Nkwanga Katamba.**

**Judge.**

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