The application for Judicial review was brought under rules 3, 4 and 6 of the Judicature (Judicial Review) Rules, S.1 2009 No.11. It is for the following reliefs:

1.       That the prerogative order of certiorari be granted to quash the decision contained in the letter to the Chief Administrative Officer, Luwero District dated 22/01/2010 and the accompanying report of the respondent against the applicant.
2.       Order of prohibition forbidding the implementation of the recommendations contained in the said letter in as far as it relates to the applicant.

From the records, the respondent received a complaint that Luwero
District Service Commission advertised the post of Town Clerk
Wobulenzi and that several applicants were confidentially contacted
by the agents of the interview organizers to solicit bribes and that the
persons who pledged highest were the ones short listed.

The insinuation was that since the applicant had got a job, he had
pledged highest or was among those who pledged highest. After
the respondent’s investigations, it was recommended that the
appointment of the applicant as Town Clerk be rescinded and the post
re-advertised because it was marred with irregularities.

At the conferencing the parties agreed that:

1.       Applicant is Town Clerk of Wobulenzi Town Council.
2.       He applied for the job.
3.       He had qualifications for the job.

4.       He was investigated by the IGG and recommended for termination.

Issues:

1.       Whether the applicant was accorded a fair hearing.

2.       Whether the respondent’s report was addressed to an appropriate body for its implementation
3.       Remedies.

Counsel:
Mr. Abaine Bulegeya for the applicant
Mr. Hosea Lwanga for the respondent.

Issue No. 1: Whether the applicant was accorded a fair hearing.

According to the applicant, the respondent’s letter forwarding the report
to the Chief Administrative Officer dated 22/1/2010 headed “Report on

Alleged Financial Mismanagement of Luwero District Officials” contains
allegations of solicitation of bribes by unnamed agents of the interview
organizers from the jobs applicants which allegation was not proved
against the applicant. His complaint is that he was never given an
opportunity to cross-examine the complainants who complained against
him to the respondent and made serious allegations of bribery and
suspected compromise of the Luwero District Service Commission (the
DSC) thus no fair hearing was accorded him.

He contended that he responded to the advertisement for the job which
specified the requirement of the Post of Town Clerk and did not at all
influence the DSC nor did he compromise it for his selection.

In reply to the above complaint, the respondent, through one Josline
Birungi, an Advocate in the Directorate of Civil Litigation with the
respondent, contends that the respondent received an unanimous
(sic) complaint that the applicant was illegally, irregularly and unlawfully
appointed as the Town Clerk of Wobulenzi; that the (the applicant) had
bribed members of the District Service Commission and compromised
the same; that he was given a fair hearing, responded to the allegations
levied (sic) against him and recorded a statement capturing all the
allegations levied (sic) against him.

I would think that by ‘unanimous’ in paragraph 6 of Ms Birungi’s affidavit
she intended to say ‘anonymous’ and ‘levied’ to mean ‘levelled’. In the
written submission, learned counsel for the respondent contends that the
allegations stated in the complaint were brought to the attention of the
applicant as one of the individuals interviewed; that the applicant
recorded a statement and only chose to respond to the allegations
relating to his academic qualifications ignoring the rest; and that the
records perused during the investigations (attached to the report) show
that the applicant was given the job even before the interview was
conducted.

I have addressed my mind to the able arguments of both counsel. As
learned counsel for the applicant has correctly observed, judicial
review is not an appeal from a decision, but a review of the manner in
which the decision was made. The primary purpose of the prerogative
orders is to make the machinery of government operate properly and in
public interest. It is not an appeal and the jurisdiction is exercised in a
supervisory manner, not to vindicate the rights of the parties as such, but
to ensure that public powers are exercised in accordance with the basic
standards of legality. The court is not, therefore, entitled on an
application for judicial review to consider whether the decision was fair
and reasonable except of course if the same is illegal, unfair and/or
irrational. There are two main concepts in judicial review, that of natural
justice and that of ultra vires. What is in issue here is not the concept
of ultra vires but natural justice.

The rules of natural justice apply to all judicial and quasi-judicial bodies,
and provide, for example, that hearings must be unbiased. Other
principles of natural justice include the right to have one’s case
considered – audi alteram partem, including to the right to notice of the
case against one, and the right to have notice of the hearing.

In instant a case, it is an admitted fact that the applicant applied for a
job. He had the requisite qualifications. However, no sooner had he
settled on the job after appointment than some people raised complaints
against him. The complaint was that he had bribed his way to obtain the
job.

The applicant contends that he was never given an opportunity to
cross-examine the complainants and was thus denied a fair hearing.

The argument appears not to appeal to the respondent. According to
him, he is by law empowered and required to protect whistle blowers
under the Whistle Blowers Act 2010 and the Inspectorate of Government
Act 2002.

With the greatest respect to the respondent, I do not think that the
Whistle Blowers Act 2010, if it had come into force by 22/01/2010, gives
solace to him. I do not think that the Act takes away the general rule
which is that a party must be given an opportunity to be heard before its
rights are prejudiced or affected by a decision. True, the respondent
may have acted within the law and rules governing his institution.
However, having heard Mr. Bulegeya’s arguments, the applicant’s
ground is based on one simple rule of natural justice, namely, the right
of a party to be heard before they are found liable. Whether the
information comes from whistle blowers or not, the rule embraces the
whole notion of fair procedure and due process.

An authority on this point is the old English case of R Vs University of
Cambridge (1723) 1 Str 557 where the University of Cambridge had
deprived Bentley of his degree without giving him opportunity to be
heard. Without delving into too much detail, Bentley was able to have
the act of the University declared a nullity because he had not first been
heard in his own defence.
Consequently, in the instant case, since the applicant had the necessary
qualifications for the job he had applied for and was given by the DSC,
justice demanded that he should not have been condemned without
being heard. And what would being heard entail in a case such as this?
The answer lies in Article 28(1) of the Constitution. It provides that in the
determination of civil rights and obligations, or any criminal charge, a
person shall be entitled to a fair, speedy and public hearing before an
independent and impartial court or tribunal established by law. I did
observe in Rose Mary Nalwadda Vs Uganda Aids Commission
HCMC No. 0045 of 2010 (unreported), that a fair hearing, under Article
28 of the Constitution means that a party should be afforded opportunity
to, inter alia, hear the witnesses of the other side testifying openly; that
he should, if he so chooses, challenge those witnesses by way of cross-
examination; that he should be given opportunity to give his own
evidence, if he so chooses, in his defence; and that he should, if he so
wishes, call witnesses to support his case. The Supreme Court
emphasized this point in Charles Twagira Vs Uganda, Criminal
Appeal No. 27 of 2003.

I should perhaps add that under Article 44 (c) of the Constitution:

“Notwithstanding anything in this Constitution, there shall be no
derogation from the enjoyment of the following rights and
freedoms-

(a)-----------------------------------------------------------
(b)----------------------------------------------------------
( c) the right to fair hearing”.

It is clear from the record of the proceedings constituting the impugned
Report that the IGG considered the accusation against the applicant
proved by the whistle blowers’ information to him and yet the applicant
did not have the opportunity to contradict those accusations since the
whistle blowers could not come out to identify themselves. He did not
have the opportunity to defend himself before any properly constituted
body that could determine his guilt or innocence. The implication is that
he was condemned unheard, without his case being heard by an
independent court or tribunal established by law. In these
circumstances, the decision to terminate his employment cannot be said
to have been arrived at through fair procedures and due process. In my
view this ground should succeed. I would therefore answer the first
issue in the negative and I have done so.

Issue No.2: Whether the respondent’s report was addressed to an
appropriate private body for its implementation.

I have addressed my mind to the arguments of both counsel on this
point.
I would of course agree with the argument of learned counsel for the
respondent that addressing a report to a wrong party would not ipso
facto invalidate an otherwise valid report.

Having said so, I am of the considered view that although the
respondent had the power to investigate and recommend as he
did, the powers must be read together with the constitutional
safeguard as to fair trial or hearing.
In Ridge Vs Baldwin & Others [1964] A.C 40, one of the leading
authorities on termination of employment relationships, it was held, and I
agree, that even if the respondents had power of dismissing without
complying with the regulations, they were bound to observe the
principles of natural justice. It was held in that case that a decision
reached in violation of the principles of natural justice, especially the one
relating to the right to be heard, is void and unlawful. In Eng. Pascal
R. Gakyaro Vs CAA Court of Appeal Civil Appeal No.60 of 2006 the
court observed that the appellant was being deprived of an office of a
public character with the attendant statutory benefits. That the principles
of natural justice demanded that he be given an opportunity to be heard
in his defence for whatever worth it might be. That the overall effect of a
denial of natural justice to an aggrieved party renders the decision void
and of no effect.

In view of the court’s finding that the applicant was condemned unheard,
implying that the respondent’s decision to recommend that the
applicant’s services be terminated was null and void, I do not consider it
necessary to bother myself with analysis of the arguments in issue No.2
even for academic purposes.

He has made two prayers:
1.       That the prerogative order of certiorari be granted to quash the decision contained in the respondents letter to CAO Luwero dated 22/01/10 and the accompanying report of the respondent in as far as it relates to the applicant.
2.       Order of prohibition forbidding the implementation of the recommendations contained in the said letter, also in so far as it relates to the applicant.

In view of what I have said herein above, I have found merit in both
prayers. I accordingly grant them.

Learned counsel for the applicant has submitted that his client was
greatly inconvenienced and harassed by the illegal acts of the
respondent. He has prayed for a sum of Shs.50m as general damages.
I do not think that the applicant merits this award or at all, especially
so since there is no such prayer in his application. I have therefore not
awarded him anything.

As regards costs, the usual result is that the loser pays the winner’s
costs. This practice is of course subject to the court’s discretion, so that
a winning party may not necessarily be awarded his costs. In the instant
case, the applicant made no prayer as to costs in the notice of motion.
He has raised it in the written submissions. The application
notwithstanding, the applicant is still holding the office of Town Clerk
Wobulenzi. The IGG’s recommendations have not materially affected
his appointment and occupation of the said office.
In recognition of the general rule that costs follow the event and in
accordance with the inherent powers of this court under Section 98 of
the Civil Procedure Act, the applicant shall be decreed half his taxed
costs of the application.

Orders accordingly.

Dated this 28^th day of October 2010.


Yorokamu Bamwine
JUDGE