Ssemakula v Gulu University (Miscellaneous Cause 2 of 2024) [2024] UGHC 374 (27 May 2024)

# THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA HOLDEN AT GULU

MISC. CAUSE NO. 002 OF 2024

### DR. SHADAT SSEMAKULA MUTYABA MOHMEDED.......... APPLICANT

### **VERSUS**

GULU UNIVERSITY.................................... ......................................

$\mathsf{S}$

## BEFORE: HON. MR. JUSTICE GEORGE OKELLO

#### **RULING**

This is a ruling on the preliminary points of law raised by the Respondent in Judicial Review proceedings. The Applicant sought to challenge the Respondent's decision of 1<sup>st</sup> February, 2024 dismissing him from employment as Dean Faculty of Law. The application was filed in court on 30 15<sup>th</sup> February, 2024. The Applicant contends that the Appointments Board acted illegally, irrationally, ultravires, and in a procedurally improper manner. He seeks for an order of prohibition to stop the implementation of the decision. The Applicant also seeks for certiorari to quash the decision, and an order of mandamus to compel the vacating of the 35 decision. The Application is supported by an affidavit. It is opposed by the

HUADREW.

$\mathsf{S}$ Respondent's Deputy Chief Human Resources Management, Cakuru Christine who swore an affidavit.

When the matter came up for hearing on 12<sup>th</sup> April, 2024, learned Mr. Kafeero Alexander of M/s Okecha Baranyanga & Co. Advocates for the 10 Respondent, sought to raise preliminary objections in writing. Mr. Jimmy Muyanja, learned counsel for the Applicant, requested to respond in writing. This court gave timelines. The Respondent's counsel was to file and serve the submissions by 3<sup>rd</sup> May, 2024, and the Applicant would respond and serve by 8<sup>th</sup> May, 2024. A rejoinder, if any, was to be lodged by the Respondent and served by 13<sup>th</sup> May, 2024. I note that the 15 Respondent's preliminary points of law were filed as directed. However, it is clear from Mr. Muyanja's protest letter that the Respondent's counsel only served the same by e-mail on 13<sup>th</sup> May, 2024 at 4:26 pm. This prompted the late response by Mr. Muyanja which was filed in court on 20 $20<sup>th</sup>$ May, 2024 as court was writing its ruling. I have considered the Applicant's late submissions in response to the preliminary points of law, the late filing having been well explained. The conduct of the Respondent's counsel in serving the submission late, was not explained and is a bad practice. Such conduct delays and defeats dispensation of justice.

Before I state the points of law argued, it is proper to give background facts giving rise to the action.

H440Que.

The Applicant was at the material time Dean Faculty of Law of the Respondent. He was first employed as a temporary senior lecturer in August 2015, and appointed senior lecturer in August 2016, then promoted in July 2022 to the rank of Dean. While Dean Faculty of Law, 10 the Applicant applied for promotion to the rank of Associate Professor, and in June 2023, he sought for an update from the Respondent on the matter. The Sub Committee of the University Council raised a number of issues during the Applicant's vetting, to which they required the Applicant's written response. The issues relate to what the Respondent terms glaring inconsistencies in the names used on the Applicant's academic and other 15 documents, as well as the date of birth declared on academic documents, bio data, deed poll, all showing that the Applicant was born on 25<sup>th</sup> July, 1983 yet several years later in November 2023, he purport vide a statutory declaration that he was born on 25<sup>th</sup> January, 1978, thus claiming the 20 date of birth appearing on the National Identity Card inadvertently carries the date of 25<sup>th</sup> July, 1983. The Applicant was, therefore, invited for an interface with the Top Management of the Respondent on 26<sup>th</sup> October, 2023, to offer clarity. In his pleading and affidavit, he affirms that he appeared before a panel chaired by the Vice Chancellor and 9 other senior Members. After the interaction, the Applicant was informed he would be 25 required to answer further questions. Written questions were sent which

$\mathsf{S}$

Haddu.

$\overline{3}$

the Applicant responded to after time extension by the Respondent. The

Applicant was then required to appear before the Appointments Board on $\mathsf{S}$ 7<sup>th</sup> December, 2023. He sent his written response to the questions well in advance on 28<sup>th</sup> November, 2023. The Applicant claims he appeared before the Board on 8<sup>th</sup> December, 2023 together with a lawyer (not 7<sup>th</sup> December as scheduled). The Applicant claims the Board Meeting was then adjourned to a date to be communicated. He says he was later served with $10$ an interdiction letter dated 8<sup>th</sup> December 2023. Service was done on 9<sup>th</sup> December, 2023. The Respondent subsequently wrote a letter dated 23<sup>rd</sup> January, 2024, inviting the Applicant for a fair hearing before the Appointments Board scheduled for 31<sup>st</sup> January, 2024 at 9:00 am in the University Council Board Room. The Applicant does not mention the fact $15$ of the invitation in the body of the supporting affidavit although he annexes a copy of the letter. The Respondent, however, affirms the fact in the opposing affidavit. The invitation letter alleges glaring inconsistencies in the Applicant's official documents which are deemed to constitute misconduct according to the provisions of the Respondent's Human 20 Resource Manual, 2017 (as amended). The acts deemed to be misconduct under the Manual are; acts that bring the University into disrepute under section 15.1.2 (b); perjury under section 15.1.2 (g); falsification of records under section 15.1.2 (y); and making false documents under section $15.1.2$ (aa). The Applicant was required to carry along original academic 25 documents, Birth Certificate, National Identity Card, Employer Identity

Harodur

$\overline{4}$

Card, and the Passport he earlier attached in his letter to the Chairperson $5$ Appointments Board (at the time of the first appointment).

According to the Respondent's affidavit, the Applicant did not appear at the scheduled hearing despite receiving the invitation. In his absence, the Appointments Board received evidence and submissions 10 from Management regarding the charges against the Applicant, and concluded that, the Applicant's actions constituted professional and or ethical misconduct, contrary to section 16.8.5 (d) of the Human Resource Manual, 2017. The Appointments Board, therefore, in line with section 16.8.5.4.1 of the Manual, resolved under Minute 6/55/AB/2024, to dismiss the 15 Applicant from the service of the Respondent. The dismissal letter indicates that the Applicant has a right to appeal to Gulu University Staff Tribunal within 14 days from the date of receipt of the letter of dismissal. In her affidavit, the Respondent deposes that, the Applicant has never appealed the decision. The Respondent deposes that the Applicant was 20 dismissed in accordance with the Manual and the law, and that he failed to defend himself when called upon. In the supporting affidavit (the Applicant makes no rejoinder affidavit), the Applicant asserts that he was taken ill on or before 30<sup>th</sup> January 2024 and attended Medical Centre Clinic for health checks where he was found to be critically ill, and that, 25 he shared this information with the University Secretary to explain his absence before the Appointments Board. The Applicant attaches a

Hadoour.

$5$

$\mathsf{S}$ Laboratory Report from Medical Centre stamped 31<sup>st</sup> January, 2024 indicating a diagnosis and treatment notes of 30<sup>th</sup> January, 2024 (address of the Medical Laboratory, and the name of the Doctor are not legible). The Applicant affirms that he was surprised to receive the dismissal letter in which the Appointments Board proceeded in his absence and dismissed him. The Applicant contends that the dismissal was in breach of the 10 Human Resource Manual as the Respondent's Board failed to accord him a fair hearing. He affirms that he requested for the record of the proceedings which has not been given, and thus, he failed to appeal to the Staff Appeals Tribunal of the Respondent. However, to his affidavit, the Applicant attaches at page 80, the Respondent's response, dated 12<sup>th</sup> 15 February, 2024 to the Applicant's request for record of the proceedings. The response refers to the Applicant's request dated 7<sup>th</sup> February, 2024. The response letter states "I hereby submit to you the available documents on record concerning your dismissal. Please, note that the non-availability at the moment of any of the documents you requested for does not deter you 20 *from submitting your appeal.*"

It is in light of the stated background that the Respondent's learned counsel raised the points of law. The first objection is that the suit is improperly and prematurely before this court. Learned counsel argued 25 that the Applicant should have exhausted the remedy of appealing to the Staff Tribunal which is available under section 57 of the Universities and

HGADOur.

- other Tertiary Institutions Act No. No. 7 of 2001 (as amended) in 2006. He $\mathsf{S}$ submitted that the section accords a staff with a right of appeal to the University Staff Tribunal against a decision of the Appointments Board within fourteen days after being notified of the decision. After the Appeal, the Tribunal must, within forty five days, either confirm, vary, amend, or set aside the decision appealed against or give such decision as it thinks 10 appropriate. It was further submitted that, under the section, a member of staff aggrieved by the decision of the Tribunal, may within thirty days from the date he or she is notified of the Tribunal's decision, apply to the High Court for judicial review. That, on an Application to the High Court, the High Court may make such orders as it may consider just. Learned 15 counsel cited many authorities to buttress his arguments to the effect that the Applicant should not have invoked this court's supervisory powers before exhausting the available alternative remedy. Such cases include Shamir Production LLC & another vs. Uganda Revenue Authority, 20 HCMC No. 28 of 2010; Microcare Insurance Ltd Vs. Uganda Insurance Commission, Misc. Application No. 31 of 2009; Uganda Crop Industries Ltd Vs. Uganda Revenue Authority, HCCS No. 05 if 2009 $(OS)$ . - 25 He prays that the objection is upheld and the Application is struck out with costs.

HLADen.

$\overline{7}$

The other objection relates to the amenability of the matter to judicial $\mathsf{S}$ review. The argument is intertwined with the contention that the matter is a private law matter and thus fit for Industrial Court and not judicial review. Learned counsel cited the case of Arua Kubala Park Operators and Market Vendors Cooperative Society Ltd Vs. Arua Municipal 10 Council, Misc. Cause No. 003 of 2016 to support his arguments.

Learned Mr. Muyanja for the Applicant, sought to rely on the case of **Owor** Arthur & 3 Others Vs. Gulu University, HCT-02-CV-MA-0018 OF 2007 (R. Kasule A.g, J., as he then was) to argue that the Respondent is a public University, and its decision is amenable to judicial review. He also submitted that the matter involves public law principles and not enforcement of private rights although a public body is involved.

Regarding the need to first exhaust the internal appeal mechanism provided by statute, learned counsel cites articles 20, 42 and 44 of the Constitution of Uganda, 1995, and compares with Article 47 of the Kenyan Constitution, 2010, plus several provisions of the Judicature Act of Uganda, both repealed and current. Learned counsel started with the Judicature Act of 1967, then the 1996, and the current Judicature Act Cap 13, plus a host of foreign decisions, and submitted that, the 25 legislature has never intended to lock out persons from seeking judicial review. Making specific emphasis to article 42 of the Constitution of

HUADDUM Uganda, 1995, Mr. Muyanja contended that no law has been pointed out $\mathsf{S}$ by the Respondent which can withstand the force of article 42 which gives the Applicant a right to immediately protest any unjust and unfair process and procedure he has been exposed to. Learned counsel argued that, the authorities cited for the Respondent, do not apply because, they did not 10 interpret the provision of section 14 $(2)$ (a) of the Judicature Act Cap 13 relating to exercise of powers of the High Court in conformity with the written laws, including those in force before the Judicature Act came into force. Learned counsel adverted to the provisions of the Trade Disputes (Arbitration and Settlement) Act Cap 224 to submit that, the said law has not barred employees from resorting to judicial review. $15$

## Resolution of the preliminary points of law

A preliminary objection is one which consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. A 20 preliminary objection raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. **See:** Mukisa Biscuit Manufacturing Co. Ltd Vs. West End Distributors Ltd, [1969] EA 696; Patrick Mukasa Vs. Andrew Douglas Kanyike, Civil 25 Appeal No. 13 of 2022 (SCU)

Hhaodin.

$\mathsf{S}$ $SC$ In Attorney General Vs. Maj. General David Tinyefuza, Constitutional Appeal No. 1 of 1997, the Supreme Court cited with approval **Everett Vs. Ribands**, where Rommer, L. J opined, inter alia, that, where you have a point of law which if decided one way is going to be decisive of litigation, advantage ought to be taken of the facilities afforded 10 by the rules of court to have it disposed of at the close of the pleadings or very shortly after the close of the pleadings.

In the instant case, the Respondent indicated in the affidavit in reply that preliminary objections would be raised at the hearing.

15 Before I resolve the points of law, I find it necessary to state what judicial review is and the relevant applicable principles.

Judicial review means the process by which the High Court exercises its supervisory jurisdiction over the proceedings and decisions of subordinate courts, tribunals and other bodies or persons who carry out quasi-judicial 20 functions or who are charged with the performance of public acts and duties. This is contained in rule 2 (1) of the Judicature (Judicial Review) Rules, of 2009 (as amended) by S. I 32 of 2019. Its purpose is to ensure that the individual receives a fair treatment by the authorities to which they have been subjected. Judicial review is thus concerned not with the decision in issue per se but with the decision making process. It involves 25 an assessment of the manner in which the decision is made. It is not an

Hadoduw.

appeal and the jurisdiction is exercised in a supervisory manner, not to $5$ vindicate rights as such, but to ensure that public powers are exercised in accordance with the basic standards of legality, fairness and rationality. Judicial review ensures that the opinion of a Judge is not construed as that of the authority exercising public powers See: *Kalou Joseph Andrew* 10 & 2 others Vs. the AG and 6 others, Misc. Cause No.106 of 2001; Hilary Delany in his Book 'Judicial Review of Administrative Act'

2001, Sweet and Maxwell, pp. 5 and 6 cited by Kirywabwire, J., (as he then was) in **Kasibo Joshua Vs. Commissioner of Customs Uganda** Revenue Authority HCT- MA. 44 of 2007.

$15$

In considering whether or not a court ought to grant prerogative writs of judicial review, courts consider the nature of the matter in respect of which the relief may be granted, the nature of the persons or bodies, and all the circumstances of the case, and assesses whether it would be just and convenient for the orders to issue. An applicant for judicial review must, 20 however, demonstrate a direct or sufficient interest in the matter. See rules 3 and 3A. See also section 36 (3) of the Judicature Act Cap 13 as (amended) by Act No. 3 of 2002. Thus in considering an application for judicial review, court must satisfy itself that the application is amenable for judicial review; that the aggrieved person has exhausted the existing remedies 25 available within the public body or under the law; and that, the matter involves an administrative public body or official. See rule 7A. The court

Hussam

- $\mathsf{S}$ may grant judicial review relief where the decision making body or officer did not follow due process in reaching the decision and as a result there was unfair and unjust treatment. The jurisdiction to entertain an application for judicial review, and grant reliefs, lies exclusively in the High Court pursuant to section 36 (1) and (2) of the Judicature Act (as amended) (supra). The court can grant several reliefs such as an order of mandamus, 10 - prohibition, certiorari, injunction, declaration, and may also award damages as provided for by the law. The right to seek judicial review is also supported by article 42 of the Constitution of Uganda, 1995. See: Hon. Abdu Katuntu & Kimberly Kasana Vs. MTN Uganda Ltd and 6 Others, HCCS No. 248 of 2012 (Madrama, J., as he then was). 15

I will resolve the second objection first. Regarding the contention that the Applicant seeks to enforce private law rights and not public law rights, the Respondent's counsel does not contest the fact that the Applicant is a public body. He, however, argues that the subject matter before court does not involve claims based on public law principles. I agree that courts have held that only decisions of public bodies are amenable to judicial review, with the exceptions being where private bodies exercise powers of a public nature, in which case a court may extend its judicial review powers. See:

25 Yasin Sentumbwe Munagomba & Simon Semuwemba Vs. Uganda Christian University, HC MC No. 22 of 2017 (Margaret Mutonyi, J.)

HUADOM.

$5$ A public body under the Judicial Review Rules include any corporation established by an Act of Parliament for the purposes of any written law or public undertakings of public education for the benefit of the public. I take judicial notice that the Respondent is a Public University established by Statutory Instrument No.16 of 2003, pursuant to section 22 of the 10 Universities and Other Tertiary Institutions Act, Act No. 7 of 2001. The fact of the Respondent being a public university was earlier recognized by this court in the case of **Owor Arthur & 3 Others Vs. Gulu University**, HCT-02-CV-MA-0018 OF 2007 per Kasule, Ag. Judge (as he then was) (supra). The present Respondent has not shown that its status has since changed. The Respondent is also a body corporate with perpetual 15 succession and common seal and may sue or be sued in its corporate name, under the Universities and Other Tertiary Institutions Act (supra). However, for judicial review purposes, the corporate personality status is not a sine qua non for justiciability. See: John Jet Tumwebaze Vs. Makerere University Council and 3 others, Civil Application No. 353 20

## of 2005 per- Kasule, J, (as he then was)

In the instant case, therefore, the question for resolution under the second objection is whether the decision dismissing the Applicant's services is a public law decision and, therefore, amenable to judicial review, or is purely a private law matter. Put differently, is the Respondent's decision to

Ahaodew.

dismiss the Applicant as its Dean Faculty of Law governed by public or $5$ private law principles?

It is trite law that for judicial review purposes, the subject matter under challenge must involve claims based on public law principles and not enforcement of private law rights. This is stated by **Ssekaana Musa** in his treatise, **Public Law in East Africa at p. 36-7 (2009)** cited with approval in Arua Kubala Park Operators and Market Vendors Cooperative Society Ltd Vs. Arua Municipal Council, Misc. Cause No. 003 of 2016 ( Mubiru, J.). See also Mrs Anny Katabaazi Bwengye Vs. Uganda Christian University, Misc. Cause No. 268 of 2017.

From the above authorities, it is abundantly clear that while public law system concerns the proper performance of public duties owed to the public by public bodies, private law is concerned with enforcement of 20 private rights. However, it should be noted that, some statutory duties imposed on public bodies may create private rights in favour of persons, and would thus be enforceable by ordinary actions. It is thus proper that a court assesses the nature of the decision made by a public body to tell whether it is classifiable under public or private law. It has been observed that, the classification 'public law' and 'private law' are novel concepts and 25 ought to be used in a cautionary way although convenient for descriptive

Hhotoden

- $5$ purposes- per Lord Wilberforce in Davy Vs. Spelthorne Borough **Council [1934] 3 All ER 278.** Therefore, to distinguish between the 'private' from 'public' law matters, court must identify a feature or a combination of features which impose a public character or stamp on the act. See: Polar Housing and Regeneration Community Association Ltd - Vs. Donoghue [2002] QB 48, at para 65 per Lord Woolf CJ. Therefore, 10 to establish a public character of a matter, it calls for an assessment of the nature of the power and function exercised by the public body. The decision of the body has to have sufficient public element, flavor or character. See: R (Beer t/a Hammer Trout Farm) Vs. Hampshire

## Farmers' Markets Ltd [2004] 1 WLR 233, at pp. 240-241, per Dyson 15 LJ.

I have considered Mr. Kafeero's arguments. His contention is that, since in his view the Applicant seeks to enforce private rights, the Applicant ought to have commenced an action in the Industrial Court and not seek 20 judicial review in the High Court. In my view, and with respect, the question can only be resolved by looking at the matter holistically and not cherry picking the element of exercise of private law rights as learned counsel appear to do from selected facts. For starters, it is not contested that the Respondent is a Public University, and can only act within the 25 laws governing it. The Respondent did not purport to enter into a private contract of a nature that would fit within the classification of private law matters. It was for instance not contracting with suppliers or cleaners but

Humoden

$\mathsf{S}$ with Dean Faculty of Law who was appointed in accordance with the statute establishing the Respondent University. In seeking to discipline the Applicant for the alleged acts, the Respondent invoked the provisions of its Human Resources Manual which as I will state, was made pursuant to the Act of Parliament. The Respondent cites section 16.8.5 (d) of the 10 Manual to charge the Applicant for the alleged breaches categorized as professional and ethical misconduct. The alleged acts are rooted in the Policy which itself is rooted in an Act of Parliament. The Manual which is Policy was made pursuant to section 41 (d) and 72 (f) of Act No. 7 of 2001 by the University Council. There, the Council enjoys powers to make $15$ statutes not inconsistent with the Act, for the better carrying out of its functions. The statutes may also provide for procedure for staff appointment and the terms and conditions of service, including discipline of staff, salary and retirement benefits of members of all categories of staff. The Council is also mandated to make policies. In my opinion, the Manual could pass for 'statute' within the meaning of the Act though not in the 20 strict sense as understood by lawyers. The Manual also qualifies for a Policy within the province of the parent Act. Under section 52 of the Act, staff of the University can be appointed on terms and conditions to be determined by the University Council. And Section 53 provides for election of the Dean of the faculty by its academic staff from among its senior 25 members. Where a faculty is established for the first time, the Vice Chancellor appoints the Dean who holds office for two years after which

Huaven

- $\mathsf{S}$ he/she shall be elected for a four year term and is eligible for re-election for one more consecutive term. Other than the disciplinary procedure for dismissal by Appointments Board, pursuant to section 50 (3) of the Act. the Dean could be removed strictly from the position of Dean by the Appointments Board if two thirds majority of the members of the faculty/college/school make a recommendation to the Vice Chancellor for 10 transmission to the Appointments Board, under section 53 (5) of the Act. The latter is not applicable here as the Dean would still retain the position of staff albeit losing the status of Dean. - 15 Having considered the matter in-depth, I am of the view that, the decision taken against the Applicant is not private law decision but public law as the Respondent thereby sought, not to enforce the contract terms it executed with the Dean, but invoked the provisions of its Policy with regard to staff removal as regulated by an Act of Parliament. The Applicant thus 20 principally seeks to enforce the right to a just and fair treatment, claiming that the same was not observed by the Respondent's Appointments Board. He of course makes other claims which in my opinion, are merely ancillary. It thus bears no emphasis that a person appearing before an administrative official or body has the right to be treated justly and fairly. 25 He/she also enjoys the right to apply to a court of law in respect of the administrative decision taken against him /her. See article 42 of the Constitution of Uganda, 1995. It has been severally held that a decision

Hhaddun.

- $\mathsf{S}$ made in denial of a fair hearing is no decision at all and is null and void. See: General Medical Council Vs. Spackman (1943) 2 All ER 337; Ridge Vs. Baldwin [1964] AC 40; Marko Matovu & 2 Others Vs. Mohammed Sseviri; Civil Appeal No. 7 of 1978. - 10 In Pascal R. Gakyaro Vs. Civil Aviation Authority, CACA No. 60 of **2006**, it was held by the Court of Appeal of Uganda that where an appellant is deprived of an office of a public character with attendant statutory benefits, the principles of natural justice demand that he be given an opportunity to be heard in defense for whatever worth it might 15 be, because, the overall effect of a denial of natural justice to an aggrieved party renders the decision void and of no effect.

Having considered the matter, I am of the opinion that the objection should fail as I am satisfied that the claim involves public law matter. The mere 20 fact that the Applicant seeks other additional reliefs which are not available in judicial review such as exemplary and punitive damages. should not deprive the action of its public law flavor as I have found. See: Uganda Revenue Authority Vs. Wanume David Kitamirike, Civil Appeal No. 43 of 2010 (COA), (Remmy K. Kasule, J. A.

HhADw.

$5$ The other objection relates to non-exhaustion of the available remedy under public law. I agree that section 57 (1) of the University and Other Tertiary Institutions Act No. 11 of 2001 (as amended) 2006, gives an aggrieved staff of a Public University the right of appeal to the University Staff Tribunal within fourteen days upon being notified of the decision. In the present case, the date of the notification of the decision is neither $10$ stated by the Respondent University nor the Applicant. However, it is clear that by his letter of $7<sup>th</sup>$ February, 2024, the Applicant requested for record of the proceedings of the Respondent's Appointments Board, so as to enable him appeal to the University Staff Tribunal. Since the date of 15 notification is not stated, giving the matter elastic interpretation, to me it means the Applicant received the dismissal letter latest 7<sup>th</sup> February, 2024, and he made his request for the record instantly. There is evidence that the Applicant was provided with some documents by letter dated 12<sup>th</sup> February, 2024 although the letter disclaims that not all documents may be available but nevertheless guided the Applicant that the same should 20 not stop him from appealing. Instead of heeding the advice of the Respondent, and appealing within 14 days from the date of notification with the decision dismissing him, or at least within 14 days from the date of receipt of the relevant record of the proceedings (if the time to supply the record is excluded from the computation of 14 days for appealing 25 although no such provision exists in the Act of Parliament), the Applicant launched the present judicial review action on 15<sup>th</sup> February, 2024. He,

HUADDEM.

$5$ therefore, offers no plausible reason why he decided to pursue the judicial review route quite prematurely. He for instance does not allege that the Tribunal is not constituted or non-existent.

Learned counsel for the Applicant argued quite forcefully that nothing can 10 withstand the force of article 42 of the Constitution, 1995, and so his client has automatic right to access court. I am afraid learned counsel has misapplied the import of the Constitutional provision. Article 42, in so far as the right to access court is concerned, accords every person who feels he/she has not been treated justly and fairly by an administrative official 15 or body, to apply to a court of law. Article 42 does not state that a person has to apply immediately to court as Mr. Muyanja seeks to argue. The Constitution left it open to the person aggrieved to invoke the appropriate mode of accessing court as provided by different laws of the land. In my view, article 42 of the Constitution, 1995, does not limit an aggrieved 20 person to only seek judicial review. However, where a person seeks judicial review, he/she should be able to meet the requirements of the laws regulating judicial review. I note that Mr. Muyanja made a sweeping submission that all the authorities cited by Mr. Kafeero regarding the need to exhaust internal appellate mechanism provided by the public body or 25 the law, do not apply. With respect, I do not accede to that view. The Policy reasons for the making of rule 7A (1) (b) of the Judicial Review Rules (as amended) by S. I No. 32 of 2019 requiring that the aggrieved person first

HADDOW

exhausts the existing remedies, is not hard to find. The reasons are to be $5$ found in case law. They are variously stated as 'to avoid unjustified shortcuts into a Judge's docket', 'to decongest courts', 'to avoid the use of judicial review as a matter of fashion or pursuing it as a matter of course." **See**": Microcare Insurance Ltd Vs. Uganda Insurance Corporation, Misc. 10 Application No. 21 of 2009 (Bamwine, J., as he then was); Classy Photomart Ltd Vs. The Commissioner Customs Uganda Revenue Authority, HCT MC 30 of 2009 (Kiryabwire, J., as he then was); Shamir Productions LLC Ltd & another vs. Uganda Revenue Authority & Others, HCT MC 0028 of 2010 (Lameck Mukasa, J); Uganda Crop 15 Industries Ltd Vs. Uganda Revenue Authority, HCCS No. 05 if 2009 **(OS)** (*Madrama*, *J.*, *as he then was*).

In my view, additional reasons for first exhausting an internal appeal mechanisms provided by law or public body are; so as not to render the appellate processes provided by law or administrative bodies redundant 20 and useless; so as not to encourage abuse of the court process by litigants who already have available redress other than judicial review. It should also be noted that most appeal bodies are equipped and competent to rehear matters appealed from, and in most cases, such bodies are 25 constituted and functional, and are chaired by persons qualified to be a Judge of the High Court as the law may specify. So in my respectful view, the internal appeal bodies should be allowed to do their work so as not to

Hhaodus

defeat the policy reasons for their creation. In the instant case, section 57 $\mathsf{S}$ (3) of the Universities and other Tertiary Institutions Act (as amended) in 2006, is very categorical that a member of staff aggrieved by the decision of the Tribunal under subsection (2), may within thirty days from the date he/she is notified of the Tribunal's decision, apply to the High Court for 10 judicial review. There are several statutes, as seen from decided cases, where internal appeal measures are provided for and where an aggrieved person must go, before accessing the High Court by way of judicial review. In the circumstances, I agree with the view that where an alternative remedy by way of appeal exists, judicial review is premature. This view has 15 since been codified in the amended Judicial Review Rules of 2019. I do not agree, therefore, with Mr. Muyanja's arguments that article 42 of the Constitution, 1995, over-rides the said requirement. I should perhaps add that the need to exhaust internal mechanisms has its history in the common law. Thus in R VS. Chief Constable of the Merseyside Police, 20 ex parte Calveley and others [1986] 1 All ER 257 Lord Justice May opined at page 263 thus,

"...an applicant for judicial review should first exhaust whatever rights he has by way of appeal. In Preston Vs. IRC [1985] 2 All ER 327 at p.330, [1985] AC 852 Lord Scarman said: my fourth proposition is that a remedy by way of judicial review is not to be made available where an alternative remedy exists. This is a proposition of great importance. Judicial review is a collateral

HUAODUM.

- $\mathsf{S}$ challenge; it is not an appeal. Where Parliament has provided by statute appeal procedures, as in the taxing statutes, it will only be very rarely that the courts will allow the collateral process of judicial review to be used to attack an appealable decision." - 10 For the reasons I have endeavored to give, I uphold the first preliminary point of law and strike out Misc. Application No. 002 of 2024 with 80% of taxed costs to be paid by the Applicant to the Respondent. I have limited the costs because of the Respondent's conduct in serving its submissions late without valid reasons, which stood to defeat justice, and naturally delayed the quick disposal of this matter. 15

Before I take leave of this matter, having decided the matter on a preliminary point of law, I am aware that the time within which the Applicant ought to have appealed to the Respondent's Staff Tribunal has expired. However, depending on the option that he might pursue, I think the circumstances as to why the Applicant was unable to lodge the appeal before the Staff Tribunal within time, ought to be considered judiciously and in the interest of justice, should he seek the internal appeal channel. It is so ordered.

Husselw

$\mathsf{S}$ Dated, signed and delivered via email this 27<sup>th</sup> May, 2024.

## George Okello **JUDGE HIGH COURT**

$10$

Ruling delivered via e-mail to:

kafsalex@yahoo.com; okecham@gmail.com counsel for the Respondent $15$ MUYANJA@GMAIL. COM, counsel for the Applicant