Prof. Basheka v Kabale University (Miscellaneous Application 27 of 2023) [2024] UGHC 160 (25 January 2024)

## 5 **THE HIGH COURT OF UGANDA AT KABALE6 MISCELLANEOUS APPLICATION NO. 0027 OF 2023 MISCELLANEOUS CAUSE NO. 0002 OF 2023**

**(Arising from university staff tribunal appeal no. 0001 of 2023)**

**PROF. BENON BASHEKA**::::::::::::::::::::::::::::::::::::::::::::::::::: **APPLICANT**

#### **VERSUS**

**KABALE UNIVERSITY**:::::::::::::::::::::::::::::::::::::::::::::::::::::::: **RESPONDENT**

#### 15 **BEFORE: HON. JUSTICE SAMUEL EMOKOR**

#### **RULING.**

The instant application is brought under **Articles 28, 42 and 44 (c)** of the **Constitution** of the **Republic of Uganda**, 1**995**, **Sections 14, 33** and **39** of the

- 20 **Judicature Act, Section 57** of the **Universities and other Tertiary Institutions Act, Rules 3A, 4, 5** and **6** of the **Judicature (Judicial Review) Rules S. I No. 11** of **2009** and **Order 52 Rule 1** and **3** of **Civil Procedure Act** seeking the following orders: - 1) A declaration that the findings of the Respondent's Staff Tribunal Vide 25 Appeal No. 0001 of 2023 that the Respondent's appointment board should make further investigations on the issues raised against the Applicant and also inviting him to defend himself without properly considering his basis for pursuing his Post Graduate Diploma in legal practice at LDC grossly contravenes the constitutional right to a fair hearing.

- 5 2) A declaration that the decision by the Respondent's Staff Tribunal of directing the Appointment's Board to invite the Applicant to defend himself was illegal as it emanated from an illegal decision of the Respondent's Council. - 3) A declaration that the Respondent's Council flouted the procedure in 10 referring back the illegal punishment of severe reprimand against the Applicant and hence is ultravires, void and illegal. - 4) A declaration that the Respondent's appointments board selectively applied the Respondent's Human Resource Manual on study leave which contravened the right to fair hearing and principles of natural justice. - 15 5) A temporary injunction restraining the Respondent's Appointment Board from conducting further investigations in the matter and inviting the Applicant to appear before it to allegedly defend himself. - 6) An order of certiorari quashing the decision of the Respondent's Staff Tribunal that the Applicant was granted a right to a fair hearing whereas 20 not. - 7) An order of Prohibition Prohibiting the Respondent's Appointments Board from inviting the Applicant to defend himself before it basing on the illegal findings of the Respondent's Staff Tribunal. - 8) That the Respondent's pay costs of this Application. - 25 The background and grounds upon which the instant application is premised is set out in the affidavit of the applicant deponed in support of the instant application and the same is that the Applicant is the Deputy Vice Chancellor in charge of Academic Affairs of the Respondent and that the Applicant sought for a

5 two weeks leave from the Respondent's Vice Chancellor who authorized the same and the Applicant further sought for and obtained 36 leave days from his immediate supervisor. That the Respondent's Appointments Board commenced disciplinary proceedings against the Applicant on false allegations that he went for full time studies at LDC without approved study leave which the said Board 10 proceeded to hear exparte without affording the Applicant a right to a fair hearing where in the Board passed and recommended a punishment of severe reprimand to the Respondent's Council which decision was never communicated to the Applicant, further that the Respondent's Council acted illegally and irrationally when it disregarded the decision of the Appointment's Board without 15 the required two thirds of Council hence it acted ultra vires. As a result the Applicant appealed against the decision of the Respondent's Appointment Board to the Staff Tribunal and the latter illegally and unfairly dismissed. The same hence the instant application.

The Respondent opposed the application through an affidavit in reply deponed by 20 one Peace Tindyebwa Tushabomwe the Deputy University Secretary of the Respondent who averred that the Applicant is facing charges of proceeding for fulltime studies without authority and other charges of gross misconduct in accordance with several Provisions of the Respondent's Human Resource Manual 2022. That the Applicant was invited twice by the Respondent's Appointment 25 Board to appear before it to answer charges of proceeding for a fulltime course of study without authority but on both occasions he received the invitations but refused to appear before the Respondent's Board upon which the Board made the resolution to recommend to the University Council to give the Applicant a severe 5 reprimand but that before the Council would consider the decision and communicate the same to the Applicant, the Applicant filed on appeal to the University Staff Tribunal challenging the actions of the Appointments Board.

That in a Council meeting attended by the Applicant on the 26/09/2023 the Appointments Board presented a report to the University Council and the Council

- 10 resolved that the Appointments Board should exhaustively investigate all the new issues raised and to report to Council in its next meeting. That the University Staff Tribunal heard the Applicant's appeal and rightly found that the Applicant had been accorded an opportunity of fair hearing and that the Appeal was prematurely brought before it as there was no decision ever communicated to the Applicant - 15 who is to appear before the Appointments Board for hearing of the charges brought against him, defend himself and help the Appointments Board to properly investigate the issues raised against him. The Respondent therefore avers that the instant application lacks merit and prays that the same is dismissed with costs.

#### 20 **Representation.**

The Applicant at the hearing of this application was represented by Mr. Twesigye Abraham who held brief for Mr. Twikirize Timothy while Mr. Akampurira Michael and Ms. Judith Ahimbisibwe appeared for the Respondent. Counsel in this matter proceeded by way of written submissions.

25 I do not find it necessary to reproduce verbatim the averments of the parties as contained in their affidavits nor the submissions of Counsel since the same is a

5 part of the Court record. It should suffice to note that I have in great detail studied the same.

#### **Preliminary point of law.**

The Respondent raised a preliminary point of law in opposition to the instant application that ties in with the first issue raised by the Applicant, which is 10 whether the application is properly before this Court.

It is the submission of the Respondent's Counsel that the instant application is improperly before this Court and that the remedy for Judicial Review is only available to the aggrieved party after exhausting the remedies available within the Public body or under the law. To this effect Counsel relies on the Provisions

- 15 of **Rule 7A** of the **Judiciciary Review (Judicial Review) (Amendment) Rules, 2019** that provides that the Court in considering an application for Judicial Review shall satisfy itself that the application is amenable for Judicial Review and that the aggrieved person has exhausted the existing remedies available within the public body or under the law. - 20 It is the contention of the Respondent that **Section 57(1)** of the **Universities and other Tertiaries Institutions Act 2001** as amended stipulates that a member of staff may appeal to the University Tribunal against the decision of the Appointments Board within fourteen days after being notified of the decision.

It is further the contention of the Respondent that the Applicant has not furnished 25 this honorable Court with the said decision and he was aware that the decision would be communicated to him after the University Council meeting but he chose to file a premature appeal only basing himself on rumors.

5 It is the argument of the Respondents' Counsel that under **Section 50 (1)** of the **Universities and other Tertiaries Institutions Act** the Appointments Board is a committee of the University Council and it is responsible to the University Council for the appointment, promotion, removal from service and discipline of all officers and staff of the academic and administrative service of the University as 10 may be determined by the University Council. It is therefore the submission of the Respondent that **Section 50(3)** of the **Act** means that whatever decision/resolution/recommendation that the Appointments Board makes, it has to first get the approval/endorsement of the University Council.

According to Counsel for the Respondent after the Appointments Board has made 15 its report to Council then it is within the discretion of the University Council to either approve the recommendation in which case the Council would invite the Applicant to defend himself or disapprove the recommendation until further actions are made.

It is Counsel's submission that before the University Council could hold its 20 meeting, the Appellant lodged the Appeal before the Staff Tribunal prematurely and that the Applicant was not in receipt of the decision of the Board that he be severely reprimanded. Counsel further argues that the Applicant has also not before this Court furnished the said decision of a severe reprimand and that the instant application is an abuse of Court process. To buttress this argument 25 Counsel relies on the decision in **Katungi Tony versus Attorney General Miscellaneous Application No. 0266 of 2016** in which the Court held that as a general rule Judicial Review is all about the process leading to a decision and that where there is no decision there can't be Judicial Review.

- 5 It is further the argument of the Respondent that the Applicant has not exhausted all the existing internal remedies available under the law, the Applicant having filed a premature appeal in the tribunal without having received a letter of communication of the decision of the Respondent and that the Applicant has not exhausted the internal remedies. - 10 To this effect Counsel relied on the decision in **speaker of National Assembly versus Ngenga Karuma [2008] 1 KLR 425** in which the Court held that where there is clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament that procedure should be strictly followed.

Counsel for the Respondent therefore prays that the preliminary objection is 15 upheld and the application dismissed with costs.

The Applicant in his written submissions in rejoinder submits that the instant application is properly before this Court and relies on the provisions of **Article 139** of the **1995 Constitution** that provides for the unlimited jurisdiction of the High Court in all matters and the inherent powers of Court under Section 98 of 20 Civil Procedure Act.

Counsel for the Applicant submits that **Rule 7A (2)** of **the Judicature (Judicial Review) (Amendment) Rules 2019** provides that the Court shall grant an order for Judicial review where it is satisfied that the decision making body or officer did not follow the due process in reaching a decision and that as a result there 25 was unfair and unjust treatment. According to the Applicant the Respondent did through its appointment board communicate to the Applicant that the board during its 65th meeting held on the 19/07/2023 deliberated and concluded the

5 matter at its level. It is the argument of the Applicant that this was a decision because the matter had indeed been concluded. Counsel therefore takes issue with the Respondent taking pride in its refusal to furnish the Applicant with the said written decision of a severe reprimand and that this exposes the Respondent's irrationality unfairness and illegality, Counsel for the Applicant further takes 10 issue with the fact that the Respondent's Council decision was communicated on 04/10/2023 far after the 14 days had lapsed. According to Counsel therefore if the Applicant was to wait for the decision of the Respondent's Council to first be communicated to him then he would not have appealed against the illegal decision of the Appointments Board because he would be out of time and that the Tribunal 15 having entertained the Appeal and delivered its decision on 02/11/2023 shows that all internal remedies have since been exhausted.

Counsel also relied on the decision in **Water and Environment Media Network (U) Ltd and 02 others versus NEMA Miscellaneous Application No. 0239** and **0255 of 2020** in which the Court held that even in the face of an alternative 20 remedy, the discretion lies with the High Court to entertain an application for Judicial Review and that the Court further held that the requirement of exhaustion of alternative remedies should not be rigidly imposed and neither should it be used by decision makers/administrators to frustrate the efforts of an

25 It is therefore the prayer of the Applicant that the preliminary point of law is overruled.

aggrieved person to shield the Administrative process from Judicial scrutiny.

#### 5 **Determination.**

Judicial Review is the process by which the High Court exercises its supervisory jurisdiction over proceedings and decisions of inferior Courts, tribunals and other bodies or persons who carry out quasi-judicial functions or who are engaged in the performance of public acts and duties. The purpose of Judicial Review 10 therefore is to ensure that the individual is given a fair treatment by the authority to which he or she has been subjected to. Hence the role of the Courts is to see that lawful authority is not used by unfair treatment and to ensure that the individual receives fair treatment.

# **(See; (i) Clear channel independent (U) Ltd versus PPDA HCMA No. 0380 of**

### 15 **2008 (ii) UTODA versus KCCA and another HCMA No. 0137 of 2011).**

It is not in dispute that the Respondent's Appointment Board by letter dated 26/06/2023 addressed to the Applicant invited the Applicant to appear before it on the 19/07/2023 to defend himself.

It is also not in dispute that the Applicant through his lawyers Messers Mujurizi, 20 Alinaitwe & Byamukama Advocates by letter dated 18/07/2023 notified the University Secretary that their client the Applicant will not be in position to appear before the Respondent's Appointment Board owing to bar course examinations scheduled for the 24/07/2023 to 04/08/2023 and requesting that the proceedings be adjourned to another appropriate date.

25 It is further not in dispute that the Respondent by letter dated 21/07/2023 notified the Applicant that the Appointments Board during its 65th meeting held on 19/07/2023 deliberated and concluded the matter at that level and that further 5 communication on the same will be made to the Applicant by the University Council.

It is against this background that the Applicant lodged his Appeal before the Staff Tribunal against the decision of the Appointments Board.

The Appointments Board is provided for under **Section 50** of the **Universities** 10 **and other Tertiary Institutions Act** that states thus:

- *(i)* There shall be a committee of the University Council to be known as *the Appointments Board.* - *(ii) The Appointments Board shall consist of nine members appointed under Section 43.* - 15 *(iii) The Appointments Board shall, except where provided otherwise under this Act, be responsible to the University Council for the appointments, promotion, and removal from service and discipline of all officers and staff of the academic and administrative service of the University, as may be determined by the University Council.* - 20 While **Section 57 (i)** of the **Act** provides that:

*"A member of staff may appeal to the University staff tribunal against a decision of the Appointments Board within fourteen days after being notified of the decision***"**

I do not accept the reasoning of the Respondent that whatever decision is 25 arrived at by the Appointments Board the same is first subjected to approval and or endorsement of the University Council before it can be made known to 5 a party inform of a notification. I am of the considered opinion with due respect to Counsel that this reasoning is flawed.

The wording of **Section 57 (1)** of the **Act** is clear and un ambiguous. The Appeal is lodged before the University Staff Tribunal against the decision of the Appointments Board and not of the University Council.

10 The correspondence to the Applicant from the Appointments Board dated 21/07/2023 therefore ought to have contained the notification of the decision arrived at by the Board and not instead informed the Applicant that he would receive communication of the same from the University Council. To this effect the Appointments Board did abdicate its responsibility to the Applicant I so 15 hold.

The Applicant thereafter proceeded to lodge his Appeal before the University Staff Tribunal in the absence of the actual decision arrived at by the Appointments Board. The Tribunal on the 02/11/2023 rendered a decision on all the 8 grounds of Appeal lodged by the Applicant despite noting that the 20 Appellant had not been notified of the decision of the Respondent.

I have perused the decision of the Tribunal and I am sufficiently satisfied that the substance of the Appeal on all 8 grounds was dealt with by the Tribunal. The Tribunal pronounced itself on all the issues raised before it.

In a nutshell there is nothing more for the Applicant to seek before the 25 Tribunal.

5 The Applicant it is my finding has exhausted all the internal remedies available within the Respondent. The preliminary objection is therefore overruled and the first issue answered in the affirmative.

# **Issue 2: Whether the decision of severe reprimand reached against the Applicant by the Respondent's Appointment Board was unfair, irrational,** 10 **ultravires and unlawful**.

The Applicant hereunder raised what one could perhaps refer to as sub issues and proceeded to submit on the same.

The Respondent in its Submissions in reply followed a similar pattern. I will in turn resolve the "Sub issues" as raised.

### 15 **(i). Unlawfully commencing disciplinary Proceedings against the Applicant.**

It is the Submission of the Applicant that **Section 55** of the **Universities and Other Tertiary Institutions Act** provides that if two thirds of the University Council are satisfied that the Deputy Vice Chancellor should be removed from office on grounds of misconduct or inability to perform the functions of the Office 20 of the University Deputy Vice Chancellor shall give notice in writing to the Deputy Vice Chancellor and thereafter on the Recommendation of the University Appointments Board recommend to the Chancellor the removal of the Deputy Vice Chancellor.

It is the argument of the Applicant that **Section 55** of the **Act** is coached in 25 mandatory terms, that it is the Respondents Council that initiates process of disciplining the person of the of the Deputy Vice Chancellor and not the Appointments Board as alleged by the Respondent.

5 The Applicant therefore prays that this Court finds the Respondent's Board lacked locus standi to initiate disciplinary proceedings against the Applicant and be pleased to quash their decision.

In reply Counsel for the Respondent submitted that proceedings against the Applicant were commenced by a submission to the Respondent's Appointment's

- 10 Board by the Vice Chancellor who is the immediate supervisor of the Applicant who on 17/05/2023 reported that the Applicant had proceeded to pursue a full time course study without authority contrary to **Section 6.2.2.4** of the **Respondent Human Resource Manuel,2022** . It is the contention of Counsel that the Appointment Board acted legally, lawfully and with its mandate enshrined - 15 under **Section 50(3)** of the **Universities and Other Tertiary Institutions Act** that stipulated that the Board shall be responsible for the appointment, promotion, removal from service and discipline of all its officers and staff of the academic and administrative service of the University.

Accordingly, Counsel submits that the Applicant being an officer of the University 20 is envisaged under **section 50(3)** of the **Act.**

In reference to provisions of **section 55(1)** of the **Act** in issue the Respondent submits that the role played by the Appointments Board is still highlighted but the Respondent was not desirous of removing the Applicant from office since they were more concerned with mentoring, counselling and bringing the Applicant to 25 Order.

### 5 **Determination.**

**Section 50(3)** of the **Act** already reproduced above clearly places the mandate for appointments, promotions, removal from office and discipline of all officers and staff of the University upon the Appointments Board except where provided otherwise. While **Section 55(1)** on removal of the Vice Chancellor or a Deputy

10 Vice Chancellor provides thus:

*"If two thirds of the University Council are satisfied that the Vice Chancellor Or Deputy Vice Chancellor should be removed from office on grounds of misconduct or inability to perform the functions of the office of the vice Chancellor or Deputy Vice Chancellor, the University Council shall:*

- 15 *a) Give notice in writing to the Vice Chancellor or Deputy Vice Chancellor concerned and* - *b) On the recommendation of the University Appointments Board, recommend to the Chancellor that the vice Chancellor or Deputy Vice Chancellor should be removed from office."* - 20 I would agree with the contention of the counsel for the Respondent the above provision primarily relates to a scenario in which it is envisaged that the vice chancellor or Deputy Vice Chancellor will be removed from office. It is mandatory in such a scenario that the provisions of Section 55 are complied with to the letter.

The scenario in this case it would appear was not one envisaged under Section 55

25 of the Act and the Outcome of the proceedings being that the Applicant be severely reprimanded is testament to this fact.

5 The wording of **Section 50(3)** of the **Act** would appear to place all staff of the University under the same ambit in as far as the powers of the Appointments Committee are concerned in relation to discipline of officers. There is no exception envisaged under this provision based on the hierarchy of the Institution. The only qualification to this provision is captured under the phrase 10 *"except where provided otherwise under this act"* which on my reading of the Act relates to procedure on removal of the Vice Chancellor and Deputy Vice Chancellor under **Section 55** of the Act. The role played by the Appointments

I therefore find that there was nothing unlawful in initiating or commencing 15 disciplinary proceedings against the Applicant before the Appointments Board of the Respondent.

Board Under this Section is once again highlighted and not watered down.

## **(ii). The illegal and unconstitutional act of the Respondents Appointment Board denying the Applicant right to legal representation.**

It is the submission of the Applicant that **Article 28(3) (C)** and **(d)** of the 20 Constitution as amended provides that every person whose charged with an offence shall be given adequate time and facilities to prepare his defence and shall also have a right to legal representation by a lawyer of his or her choice.

It is the submission of the Applicant that he gave instructions to counsel to represent him at the Respondent's Appointment Board but his lawyer was 25 unjustifiably denied audience hence denying him a right to legal representation.

Counsel for the Respondent in their submissions in reply contend that the Applicant was accorded an opportunity for a fair hearing but he chose not to

5 submit to the disciplinary process of the Respondent and that it is false that the Applicant sent his lawyer one Arinaitwe Rajab to represent him because there was no affidavit evidence to this effect.

### **Determination.**

The Applicant in Paragraph 28 of his Affidavit in support of the instant 10 Application make reference to sending his lawyer to appear before the Appointments Board but that he was denied audience and reiterates the same under Paragraph 25 of his affidavit in rejoinder. There is no attempt by the Applicant to name the lawyer he is making reference to.

As observed by the Respondents Counsel there is no affidavit evidence to support 15 this claim.

The Applicant belatedly in his submissions makes reference to his lawyer who was denied audience as one Rajab Arinaitwe.

This revelation however comes too late given that evidence in these proceedings is by affidavit evidence and in the absence of an affidavit from Counsel Rajab

20 Arinaitwe this Court cannot rely on the averments and submissions of the Applicant that he was denied his right to legal representation.

This claim is therefore not proved.

**iii) The illegal decision of the Respondents if Council to refer back the decision of the Respondent's Appointment Board without proper quorum.**

25 The Applicant's Counsel submits that **Section 55(1)** of the **Universities and other Tertiary Institutions Act 2001** provides that if two thirds of the University

- 5 Council are satisfied that the Deputy Vice Chancellor should be removed from office on grounds of misconduct or inability to perform, they shall give a notice in writing to the Vice Chancellor and thereafter on recommendation of the University Appointment Board recommend to the Chancellor the removal of the Deputy Vice Chancellor. - 10 It is the contention of the Applicant that the Respondent's Council illegally and irrationally acted on the impugned decision of the Appointments Board without the required two thirds on the Council hence acted ultravires.

The Respondent in reply contends that no one in the Respondent Council nor the Appointments Board ever presented a report to the effect that the Applicant

15 should be removed from office and neither has the Applicant received a notice of his removal from office and as such Counsel wonders why the Applicant is reliant upon the provisions of Section 55(1) of the Act.

It is the contention of the Respondent that the Applicant has not presented evidence to show that the quorum was not met to disapprove the fact that **Section** 20 **42(3)** was not complied with.

### **Determination.**

I would agree with the Respondents Counsel that Section 55 of the Act primarily deals with the removal from office of the Vice Chancellor and Deputy Vice Chancellor. I have perused the minutes of the University Council meeting held on

25 the 26/09/2023 that was annexed to the affidavit in reply of the Respondent. The Agenda quite clearly did not have an item that relates to Section 55 nor did the 5 discussions that followed. I therefore do not find the reference to Section 55 as being applicable.

The Act however provides for quorum at the meetings of the Council under Section 42(3) that provides thus:

**"***Half of the members of the University Council at least five of whom shall not be* 10 *employees or students of the University shall constitute a quorum at any meeting of the University Council"*

Membership of the University Council is provided for under **Section 38** of the Act and the same would total 29 members. The minutes of the Council meeting for the 26/09/2023 has a full membership of 17 members and 2 coopted members.

15 The 17 full members exceed the half of the 29 members under the Act. I have also found that 7 of the 17 members were neither employees nor students of the Respondent University.

### **Section 101** of the **Evidence Act** provides that:

*"Whoever desires any Court to give Judgment as to any legal right or liability* 20 *dependent on the existence of facts which he or she asserts must prove that those facts exist"*

The Respondent has not offered any Scintilla of evidence in regard to his assertion that the Council meeting that sat on the 26/09/2023 did so without the required quorum. As a result this claim fails. 5 **(iv). The unlawful act of the Respondent's Board of selectively applying the Provisions of the Respondents Human Resource Manual against the Applicant.**

It is the submission of the Applicant that the Respondent's Humana Resource Manual provides that every officer shall seek for an approved study leave and that

- 10 while the Applicant obtained the required study leave to proceed to LDC for his Post Graduate Diploma in Legal Practice some of the Respondents Staff to wit Ms. Ahimbisibwe Judith the Respondent's Legal Officer pursued her Masters in Law from Makerere University in 2021 – 2023 without any study leave what so ever and further that Ms. Grace Ankunda an Assistant lecturer is to date pursuing 15 further studies without approved study leave. - The Applicant therefore argues that that there is total selective application of the Human Resource Manual against the Applicant which goes against the maxim of "*he who comes to equity must come with clean hands*"

The Respondent in reply submits that the allegations of the Applicant are only 20 perpetuated by vendetta on the part of the Applicant and have no merit.

### **Determination.**

I find the concerns raised by the Applicant that other members of Staff are proceeding for their studies without obtaining study leave disturbing. However two wrongs do not make a right.

25 This line of argument does not in itself bolster the case of the Applicant in this application in any case.

5 I find the issues raised here to be beyond the scope of the instant application.

# (**vi). Unlawfully entertaining a complaint against the Applicant before the same could be heard by the rewards and sanction committee**.

It is the submission of the Applicant that **Section 11.6** of the Respondent's Human Resource Manual provides that any disciplinary proceedings against the 10 Respondent's employee shall be entertained by the Rewards Sanctions Committee before it is entertained by the Appointments Board.

The Applicant therefore contends that he should have been presented before the Rewards and Sanctions Committee first before the same was escalated to the Appointments Committee and that as a result the Respondent flouted the 15 stipulated rules of procedure in initiating disciplinary proceedings.

The Respondent in reply submits that the instant ground has no merit and that the Applicant is merely on a fishing expedition. According to Counsel the Rewards and Sanction Committee is a committee for junior members of staff since it is below management and it is constituted by management.

20 The Applicant in rejoinder relies on the decision **in Birimbo Aaron versus Uganda Human Rights Commission rewards** and **Sanctions Framework Miscellaneous Cause No 0076 of 2022** that observes that

*"Section F – R of Section 26 of the public service standing orders introduces a Rewards and Sanctions Frame work which is to be reviewed regularly. By circular*

25 *standing instruction No.1 of 2011, a reward and Sanctions frame work were created which provided for the establishment of rewards and Sanctions Committee in every Ministry Department or Agency.*

5 *An amendment was effected to the said circular standing instruction on 23/12/2011… I shall make it clear that this requirement is not about the personalities constituting the committee, as long as the persons are officers of the institution, it does not matter whom they are*"

It is the submission of the Applicant that every officer is subject to such a 10 committee and was ignored by the Respondent for it illegal objectives.

#### **Determination.**

I have perused Section 11.6 of the Respondents Human Resource Manual and the same does not make reference to the Rewards Sanction Committee made mention of by the Applicant.

- 15 The decision made reference to by the Applicant above makes reference to the Public Service Standing Orders. In this regard the Respondent did attach the legal opinion of the Attorney General dated 26/09/2023 addressed to the University Secretary of the Respondent on the issue of *"whether the Uganda Public Service Standing Orders, 2021 are applicable to Public Universities:"* and - 20 "*What takes precedence between the provisions of the Uganda Public Standing Orders and the Public University Human Resource Manual in case of a conflict?"* The sum finding of the Attorney General was as follows:

*"In light of the above, Public Universities are regulated by the Universities and other Tertiary Institutions Act and the Uganda Public Service Standing orders,* 25 *2021 do not apply to them.*

5 *The Public University Council can therefore make a Human Resource Manual, or a statute dealing with Human Resource and administrative matters, a power given to it by Section 72(f) and (i) of the Act.*

*A conflict between the Uganda Public Service Standing Orders and Public Universities Human Resource Manual does not arise since the Public Service*

10 *Standing Orders do not apply to Public Universities as discussed under issue 1"*

The above legal opinion is not binding on this Court but the same is persuasive. I find no reason to disagree with the opinion of the learned Attorney General in this regard. I would therefore agree that the Public Service Standing Orders do not apply to the Respondent University and the Applicant must submit himself to

15 the processes outlined under the Universities and Other Tertiary Institutions Act and the Respondents Human Resource Manual.

For the avoidance of doubt the charge against the Applicant as per his invitation to appear before the Appointments Committee dated 26/06/2023 is to answer the charge of proceeding for full time studies without authority contrary to **section**

## 20 **6.2.2.4** of the **Kabale University Human Resource Manuel 2022.**

A perusal of the same reveals that it reads as follows:

*"An employee who proceeds for full time studies without authority shall be regarded as having abandoned duty in accordance with the provisions of section A-O of the Uganda Public Service Standing Orders,2021"*

25 Specific reference to the Public Service Standing Orders in the Human Resource Manual of the Respondent in the manner prescribed under section6.2.2.4 above 5 is an acceptable mode of drafts-manship. It is as good as the provisions being copied and pasted to the Human Resource Manual.

This is therefore to dispel any doubts as to the legality of the above provisions and others in the Manual in as far as the Attorney General's opinion and indeed that of this Court is concerned on the applicability of the Public Standing Orders

10 to the Respondent.

**vii). Existence of conflict of interest where the Respondent's Vice Chancellor (the complainant) unlawfully participated in chairing the management meeting and also her participation in the Appointments Board decision on the alleged offence against the Applicant yet she was the complainant.**

15 The Applicant on the definition of conflict of interest relied on the decision in **Uganda versus Patricia Ojangole (criminal case No. 0001 of 2014)** in which it was defined as any situation in which an individual or corporation is in a position to exploit a professional or official capacity in some way for their personal benefit.

It is the contention of the Applicant that the Respondent's Vice Chancellor was 20 the same person who chaired the management meeting in which she was the complainant against him and further that the Vice chairperson participated in the meeting of the Respondent's Appointment Board as indicated in the minutes of the Board.

It is the argument of the Applicant that the actions of the Respondent's Vice 25 Chancellor grossly contravenes the known principles of natural justice especially the rule against bias and fairness.

5 The Respondent in reply submits that the Vice Chancellor is the chair of Management and is the only person whose rank is above the Applicant and that as members of top management and colleagues it was on this premise that according to Counsel under Min 5/9/MGT/2023 in the communication from the chairperson she expressed how the actions of the Applicant in proceeding to 10 pursue the bar course without authority had affected his duties and that it was in this spirit that members recommended that a higher organ the Appointments Board take up the issue. Counsel contends that there was no decision that was the Vice Chancellor made that was prejudicial to the Applicant. On the appearance of the Vice Chancellor before the Appointments Committee it is the submission of 15 Counsel that she appeared to present the submission and nothing else and further that of the 17 grounds on which this application is premised there is nowhere that the Applicant is alleging bias on the side of the Vice Chancellor either at management level or in the board and that of the 57 paragraphs contained in the affidavit in support of the instant application there is no mention of any alleged 20 bias until the Applicant brought up the same in his affidavit in rejoinder and that the same ought to be treated as an afterthought Counsel also relied on the decision in **Dr. LAM-Lagoro James** versus **Muni University HCMC No. 0007 of 2016** where the Court held that bias in a Judicial decision maker is an attitude of mind which prevents the Judge from making an objective determination of the issues 25 that he has to resolve.

It is the contention of the Respondent therefore that there is nothing to support the possibility of a rational perception that bias existed in the Respondent Board

5 since the Vice Chancellor was not the chairperson of the Board and invites this Court to find that the argument of bias lacks merit.

#### **Determination**.

In the case of **Uganda versus Patricia Ojongole (supra) Justice Lawence Gidudu** in defining conflict of interest cited **Blacks Law Dictionary 8th Edition**

10 as "*a real or seeming incompatibility between ones private interest and one's public or Judiciary duties"* The Judge further made the following observation;

"*It is both the actual and the perception that counts when tracing conflict of interest in a transaction. It is what a reasonable person could conclude while viewing the transaction from a distance that counts. It is related to the rule against*

15 *bias. The old adage that Justice must not only be done must be seen to be done applies to conflict of interest".*

**Justice Mubiru** in **Dr Lam-Lagoro James** versus **Muni University (supra)** cited the Judgment of **Cotton LJ in Leeson** versus **General Council of Medical Education [1890]43 CHD at 379** in which he said

20 *"of course the rule is very plain, that no man can be Plaintiff or Prosecutor in any action, and at the same time sit in judgment to decide in that particular case his own case or in any case where he brings forward the accusation or complaint on which the order is made"*

The Vice Chancellor of the Respondent is the immediate supervisor of the 25 Applicant who is the Deputy Vice Chancellor of the Respondent. The said Vice Chancellor on the 11/05/2023 chaired the management meeting in which she did in her communication from the chair inform the meeting that the Applicant had

- 5 proceeded to pursue a full time bar course at the Law Development Centre without authority thus grossly affecting the performance of his duties as the Deputy Vice Chancellor Academic Affairs and the minutes reflect that she proceeded to share with the members the various correspondences regarding the Applicant's misconduct. The minutes reflect that the meeting agreed that the 10 Applicant be charged with proceeding for full time duties without authority Contrary to Section 6.2.2.4 of the Respondents Human Resource Manual and that his case be forwarded to the Appointments Board for disciplinary action and or counselling and mentoring of the officer. The Respondents minutes also reflect the Applicant was absent without apology. - 15 This Court will not take issue with the fact that the Vice Chancellor chaired the management meeting of the 11/05/2023 after all it appears to have been an ordinary management meeting of top management of which she is the recognized chair. It would have been absurd for the chair to abdicate her sit even in the absence of the Applicant who turned out to be part of the agenda item of the 20 meeting. It would have been hypocritical in my view and it would smirk of dishonesty. The meeting after all was not designed to determine the fact of the Applicant but rather to give the Applicant an opportunity of being heard in his defence before the Appointments Board which position the meeting agreed upon.

It therefore follows that on the 16/05/2023 the Respondents Vice Chancellor 25 made a submission to the Appointments Board in regard to the Applicant.

The sticking point however is the fact that when the Appointments Board held its disciplinary meeting on the 18th and 19th July 2023 the Vice chairperson of the

5 Respondent is reflected as being part of the members present. It is this participation that deserves further interrogation in my considered opinion.

The Vice chairperson of the Respondent is a member of the Appointments Committee as per the minutes on record and as such had every right to attend its meetings.

- 10 The disciplinary hearing against the Applicant though was not an ordinary meeting because the Vice Chancellor literally was the complainant having prepared the submission against the Applicant. The facts in the **Dr. Lam Lagoro James** versus **Muni University (supra)** case was that the University Secretary "alleged victim" was asked by the chair to leave the meeting and the Vice - 15 Chancellor too was asked to depart because she was a potential witness. In the present scenario the Vice Chancellor according to the minutes participated for the entirety of the disciplinary hearing. The Vice Chancellor brought her case against the Applicant before the Appointments Board and by her presence in the room participated in the deliberations and together with the members arrived at the 20 decision that the Applicant be severely reprimanded. There are no two ways to

look at this matter.

The Vice Chancellor had a conflict of interest in the proceedings and her presence could only have been required at the presentation of the submission and perhaps cross examination if the Applicant or his Counsel had been present, the continued

25 participation of the Vice Chancellor at the deliberations was irregular and a regular person viewing the transaction from a distance would form the opinion that there was conflict of interest in the proceedings. 5 The second part of the issue raised therefore succeeds and I find that there was a conflict of interest in the Respondent's Vice Chancellor participating in the decision of the Appointments Board on a matter in which she was the complainant.

## **viii) Deliberate Refusal by the Respondent's Appointment Board to**

## 10 **allow the Applicants application for an adjournment yet there was sufficient cause warranting the same.**

It is the submission of the Applicants Counsel that **0rder17 Rule 1** of the **Civil Procedure Rules** provides that at any stage of the case Court may if sufficient cause is shown grant time to the parties or any of them time to adjourn the 15 hearing of the matter.

Counsel on the definition of sufficient cause relied on the decision in **Bishop Jacinto Kibuuka -vs- The Uganda Catholic Lawyers Society & 2 ORs HCMA NO.696/2018** in which the Court found the same to mean that a party had not acted in a negligent manner.

20 It is the contention of the Applicant that the Respondents secretary wrote to him on 26 /06/2023 requiring him to appear and answer charges against him at a time when the Applicant was preparing and sitting for his LDC Bar course final examinations and that by letter through his lawyers he applied for an adjournment to the Board on grounds that he was sitting for his LDC final 25 examinations which Application the Respondent's Appointments Board unfairly declined to grant with no reasons what so ever.

5 It id the argument of the Applicant that sitting LDC Bar course final examinations constituted sufficient cause that would warrant an adjournment and that the act of denying the Applicant an opportunity to appear and defend himself grossly curtailed his right to a fair Hearing .

The Respondents Counsel in their reply submit that the issue has been overtaken 10 by events since the Respondents Board has allowed the Applicant to present his defence as per annexure XVIII to the affidavit in reply.

## **DETERMINATION**

It is trite law that an adjournment is a discretion and the same should be exercised judiciously*. (See Nitin Jayant Madvani-vs- East Africa Holdings Ltd CACA*

15 *No.14/1993).*

The Supreme Court in **Rosette Kizito -vs- Agererar & ors Supreme Court Civil Miscellaneous Application No.09/1986** held that sufficient reason in this particular case must relate to the inability of the Applicant or his counsel to attend Court.

In the instant scenario the Applicant was on 26th 20 /06/2023 invited to appear before the Appointments Board in relation to a charge against him on the 19/07/2023. The Respondents Counsel by letter notified the board that the applicant was unable to appear before the board on the stated date because the Applicant was preparing for his final examinations at LDC commencing on the 25 24/07/2023 to 04/08/2023.

The lawyer also took this opportunity to remind the University Secretary of a previous correspondence under **Ref. GEN. AR/002** dated 26/05/2023 in which 5 they requested disclosure to the Applicant of the details of the charge against him imbedded in the report of the Vice Chancellor dated 23/05/2023 amongst others and that this request had been ignored to date. Counsel reiterated in that letter the request for the same to enable the Applicant adequately represent his client.

I have perused the Minutes of the Appointments Board sitting on 18th -19th July 10 2023 and I will reproduce verbatim the relevant part for consideration below:

*"The board considered the said letter the reasons advanced for Prof. Basheka's failure to appear before the Board for hearing and noted the following:*

- *a) This was the second time that the Board was sitting to hear this case and in both cases he was required to appear in person.* - 15 *b) In the letter dated 26/06/2023 inviting Professor Basheka Benon for this hearing it was stated that failure by Prof to appear before the Board would leave the Board with no choice but to discuss and conclude the matter.* - *c) The reason stated in the said letter of his lawyers for failure to appear before the Board in person was that he was preparing for his exams which were* 20 *due to commence on 04/08/2023.* - *d) The fact that on this particular day 19/07/2023 he had no exams going on he could not appear before the board was itself contemptuous and disrespectful to the Appointments Board members.*

*The members resolved that this was not a viable excuse for not appearing before* 25 *the Board for hearing his case. The Board did not find merit in the excuse given and proceeded to deliberate on the matter."*

- 5 It would appear the Board under (c) above misconstrued the end date of the LDC Examinations of the 04/08/2023 as being the commencement date of the same. As a result of this mistake in the mind of the Board between the 19/07/2023 when the Applicant was invited for the hearing and examinations at LDC commencing supposedly on the 04/08/2023 the Applicant had at least 15 clear days between - 10 his appearance and examinations.

As we know now the examinations according to the letter were commencing on the 24/07/2023 giving the Applicant only 3 clear days to the examinations if one disregards the 19/07/2023 when he would be at the Respondents campus. To error is human. I do not think that the Board was deliberate in its position that

15 the Applicant was commencing examinations at LDC on 04/08/2023 as opposed to 24/07/2023.

I am of the firm conviction that with this fact in mind perhaps the deliberations would have turned out differently.

This Court takes judicial notice of the fact that students at the Law Development 20 Centre are under immense pressure during examination period and any engagement that can be shelved should ordinarily receive favourable consideration.

A period of 03 or 04 days to the "D" day in my view would amount to sufficient cause for an adjournment.

25 The Board it must be noted was conspicuously silent about the demands made by the Applicants Counsel to be supplied with details of the charge against him imbedded in the report of the Vice Chancellor dated 23/05/2023 that had been 5 ignored. In my view this disclosure alone ought to have earned the Applicant an adjournment.

It is therefore comes as no surprise that it was on 14/09/2023 that the secretary to the Board furnished the Applicant with documentation that he had been persistently demanding for that included the submission/Report from the Vice

10 Chancellor and this being two months after the Board had pronounced itself on the disciplinary proceedings against the Applicant. It cannot be said therefore that the Applicant enjoyed a right to a fair hearing before the Respondent's Board.

As a result, it is my finding that the Respondents Appointment Board did not act judiciously when they disregarded the Applicant's application for an adjournment

15 and thereby infringed upon his right to a fair hearing I so find.

## **Costs:**

It is trite law that costs are at large and at the discretion on the Court. Under **Section 27** of **Civil Procedure Act** a successful party is entitled to costs.

I will allow the Applicant three quarters of the taxed costs in this matter given 20 that is action has partially succeeded.

In the final result the instant miscellaneous cause partially succeeds with the following orders issuing.

1) An order of certiorari is hereby issued quashing the decision of the Respondents staff Tribunal that the Applicant was granted a right to a fair 25 hearing before the Respondents Appointments Board.

- 5 2) The temporary injunction issued by this Court on the 15/12/2023 restraining the Respondent from holding further disciplinary proceedings against the Applicant is hereby lifted. - 3) The Applicant is awarded three quarters of the taxed bill of costs in this matter.

Before me,

……………………………………… **SAMUEL EMOKOR JUDGE** 15 **25/01/2024**

20