THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT JINJA

MISCELLANEOUS CAUSE NO. 034 OF 2012

ISABIRYE DAVID MOSES   ::::::::::::::::::::::::::::::::  APPLICANT

VERSUS

1. THE BOARD OF GOVERNORS

NKUUTU MEMORIAL S.S.

1. EMURIA FLORENCE WENENE :::::::::::::::::  RESPONDENTS

BEFORE:   THE HON. JUSTICE GODFREY NAMUNDI

RULING

This Application is brought under Section 33 and 36 of the Judicature Act as amended of the Judicature Act Cap. 13 and the Judicature (Judicial Review) Rules. SI. No. 11/2009.

It seeks Prerogative Orders for Declarations, Certiorari and Mandamus (All out lined in the Application (a) – (i) arising out the Applicant being discontinued as Asst. Deputy Head Teacher, and prayers for Damages for the loss of reputation, embarrassment and distress caused to him and costs of the Application.

The grounds supporting this application are that:

1. On 30/4/2007, the Applicant was appointed to Nkuutu Memorial S.S. as the School’s Asst. Deputy Head Teacher and on March 3rd 2010 as Acting Deputy Head teacher.

1. That he was verbally informed to appear before the 1st Respondent to answer allegations against him.  This was on 1/4/2012.

1. That 12/4/2012 before the said disciplinary meeting, the 1st Respondent suspended the Applicant and withdrew his appointments as Asst. Deputy Head teacher and Acting Deputy Head teacher respectively.

1. That no evidence was led during the meeting to substantiate the alleged offences committed by the Applicant and the meeting was conducted in a biased manner.

1. That the board was not fully constituted and therefore had no authority to execute the decisions in contravention of the Education (Pre-primary, Primary and Post-Primary) Act 2008 and the principles of natural justice.

1. That the said actions contravene Article 42 of 1995 Constitution.

The affidavit in support of the Application was deponed by the Applicant.  Paragraph 1- 7 thereof are a repetition of the grounds outlined above.  In the rest of the remaining grounds he claims he was terminated as a serving member of the staff of Nkuutu Memorial S.S.    That he was hastily, irregularly tried and in a biased manner dismissed by the 1st Respondent.  (Paragraphs 8 and 9).

In paragraph 10 and 11 he avers that the 1st Respondent had no authority to do so and in paragraph 11 that he was denied his right of fair hearing.  He has as a result suffered grave damage and stands to suffer injustice.  He also avers in paragraph 13 that the Application has been brought without inordinate delay.

In all his averments he refers to various Annextures especially correspondences in regard to his appointment and his termination.

Both Respondents filed affidavits in reply, the first by the Chairman of the 1st Respondent and the second by the Head Teacher of Nkuutu Memorial S.S – Mrs. Emuria Florence Wenene.

The import of the first affidavit in reply is that the application is frivolous, vexatious and misconceived, in view of the fact that the Applicant is a teacher appointed by the Education Service Commission and only deployed to render services at the school on behalf of the Uganda Government.

The first Respondent carries on monitoring, supervising and discipline of staff and students and to receive reports against any member of staff and then recommends to the Permanent Secretary, Ministry of Education (Paragraphs 1- 4).

He avers that the Board is fully constituted and has relevant authority and mandate.   Reference is made to Annextures R1 (a) R1 (b), R1 (c) and R1 (d) and R1 (e) – documents that allude to the appointment of the Board and its members.   That the Board in its functions and mandate received a report about the conduct of the Applicant at the School at a meeting on 2/4/2012. (Ref. R2).

The Applicant was asked to make a response which he declined demanding a formal communication which was done on 3/4/2012 for a meeting on 16/4/2012 (R3) and (R4).

In the said meeting the Board resolved to maintain its withdraw of the Applicant care taker appointment and to cease to be a member of the staff of the School.  He was referred back to the Ministry of Education & Sports for further management (Ref. R5).  (Paragraphs 9 – 11 of the affidavit).

In paragraph 12 thereof, it is averred that the caretaker appointments were never ratified by the Ministry of Education and that the 1st Respondent had a right to terminate/withdraw them.

It is also averred that there was nothing irregular and that the Applicant was given a chance to defend himself.   (Paragraphs 13, 14 and 15).

The 2nd Respondent’s affidavit is along the same lines as that of the 1st Respondent’s affidavit both in content and argument so it adds no value to the replies.

Both parties filed written submissions to support their affidavits.  The Applicant raised six issues for determination as follow:

1. Whether the Applicant can challenge the decisions of the 1st and 2nd Respondents by Judicial Review.

1. Whether the 1st Respondent was rightly, legally, and properly constituted.

1. Whether the Respondents had the power and authority to discontinue the Applicant from being a member of staff of Nkuutu Memorial Secondary School.

1. Whether the Respondents’ decision to discontinue the Applicant from being a members of staff amounted to unlawful dismissal.

1. Whether the 1st and 2nd Respondents acted in breach of the Rules of natural justice.

1. Remedies.

Issue No.1:

The Applicant relied on various authorities especially Harriet Grace Bamale through next Friend Vrs. The Board of Governors Makerere College (1993) KALR 10.

There in it was held that Judicial Review powers of the High Court cover not only Judicial and quasi – Judicial bodies or persons but also administrative decisions and actions of Statutory bodies, authorities or persons exercising Statutory authority.

It is submitted that the 1st Respondent is created by the Education (Pre-Primary, Primary and Post Primary) Act 2008 to manage a School declared by the Minister or District Education Officer to be governed by it as enshrined in Section 28 of the Act.   That this is therefore a body whose actions are subject to Judicial Review.

Issue No. 3:

That under Regulation 22 (1) of the Education (Board of Governors) Regulations the Board is only empowered to monitor the behaviour and performance of any staff and under Regulation 22 (2) to report and recommend to the permanent Secretary, CAO or Town Clerk any matter concerning the staff of the School.

That the guidelines do not empower the Board of Directors with any authority to take disciplinary action.

That the actions of the 1st Respondent were ultra vires and the decisions taken were null and void.

Issue No. 2 – Whether Board properly constituted:

That one of the members was a Grade II Teacher at Nawandala Primary School and was accordingly prevented by Regulation 5 of the Education (Board of Governor) Regulations from being a Board of member.

He also faults one Siraj Mugaya for having been a member of the Board for 15 years in contravention of Regulation 6 (3) of the Education (Board of Governors) Regulations.  That 2 parents and Teachers Associations representatives – Dr. Dhasalamu Nathan and Mr. Maganda Siraj were never elected to their posts as parents’ representatives in contravention of Regulation 6 (1).   That the Board was therefore not properly constituted.   The decisions of the Board were accordingly null and void.

It is further submitted that the Respondents had no authority to withdraw the positions of Asst. head Teacher/Acting Head Teacher without the authority of the Ministry of Education.   The actions were therefore ultra vires.

Issue No. 5 – Natural justice:

The Applicant challenges the decisions which were based on previous criminal records which should not have been the case, and removing him from the position of caretaker before the Board meeting.

That these decisions were made without giving an opportunity to the Applicant to be heard on the allegations and that subsequent meetings with the Applicant were foregone conclusions.

He then lays down the list of remedies which in effect are to order the Respondents to reinstate the Applicant, pay him damages, pay him arrears of emoluments and costs.

The Respondents in their submissions quoted several authorities but most noteworthy are:

1. Hon. Erias Lukwago Vrs. Electoral Commission (Quoting Attorney General Vrs. Fulham Corporation (1992) 1 Ch. 440) and
2. Al Haji Nasser Ntege Ssebagala Vrs. The Executive Director, Kampala City Authority.

I will come to the 2 cases later.

In effect they submit that the actions of the Respondents were legal, fair and rational.  That the Applicant was employed as a Grade V Teacher by the Ministry of Education and not by the Board of Governors.   He was only posted to the School as a Government Aided School.

His assignments as Acting head Teacher/Asst. Head Teacher were subject to the approval of the Ministry of Education.  Complaints were raised about his conduct, missing lessons and misappropriation of school fees, examination fees and loss of 3 computers.   The Applicant was invited by the Board to the Disciplinary Committee and was given a hearing before a decision was taken.

The Applicant was as a result referred back to the employer.  The said employer (The Permanent Secretary) invited the Applicant to respond to the accusations raised by the Board but he did not respond.

These actions were in line with the Pre-Primary, Primary and Post Primary Act 3rd Schedule Regulation 21 (1) thereof.   The head Teacher is enjoined to report and recommend to the Board any disciplinary measures to be taken against a member of staff who is a public Officer and the Board recommends to the Permanent Secretary to take appropriate action.

The 2nd Respondent as head Teacher was only exercising functions delegated to her locally by the Board under Part VI of the Regulations.

Regarding his responsibility as Acting Deputy Head Teacher/Asst. Deputy Head Teacher were subjected to an allowance and dependent on performing his assigned duties well.

That the Board’s decision was accordingly not ultra vires.   The prayers for the writs of Mandamus and Certiorari are therefore misplaced.

Reference was made to Mukenge Building Construction and Sons Co. (U) Ltd. Vrs. Iganga District Local Government. Therein it was held that the purpose of Judicial Review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches on a matter which it is authorized or enjoined by law to do to decide from its self a conclusion on which is correct in the eyes of the law.

The Court in a case for Judicial Review does not go into the merits of whether the Applicant’s employment - rights were violated and does not receive evidence on matters of substantive employment issues.

The claim that the Board has no legal existence and that he was dismissed from teaching service by the Respondents is also false.

On the remedies sought, reference was made to the case of John Jet Tumwebaze Vrs. Makerere University, Civil Application No. 353/2005, and the Judicature Act Section 36 (2).  

It is submitted that the Respondents referred the Applicant to be employer – Ministry of Education which should sort out his affairs.

Looking at all the submissions of both parties, there is no doubt that both parties are in agreement about the law on Judicial Review.

The purpose of Judicial Review is to ensure that public power/authority is exercised in accordance with basic standards of legality, fairness and rationality.   Ref: Kulu Joseph & Others Vrs. Attorney General – Misc. Cause No. 106/2010.

In Hon. Erias Lukwago Vrs. Electoral Commission (supra), it was observed that there are 2 main concepts in Judicial Review, that of natural justice and that of ultra vires.  That of natural justice includes the right to have one’s case considered – audi Alterem parten.

The concept of ultra vires is one to control the actions of public bodies not authorized necessarily by or implication by law.  Thus anything done unauthorized by law is ultra vires.

Finally in Misc. Cause No. 46/2011 Alhaji Nasser Ntege Ssebagala Vrs. The Executive Director KCCA.   It was observed that Judicial Review controls administration under 3 heads.

Illegality, Irrationality and Procedural Impropriety.   Under illegality, the test is whether the decision maker acted within the law.

Irrationality accrues when the decisions made was so outrageous in its defiance of logic or acceptable normal standards that no person would have arrived at it.

Under  procedural Impropriety – the rules of natural justice and fairness have not been observed by the decision maker to the prejudice of the affected person.

The other party must be heard and not condemned unheard – Audi Alterem Partem (Let the other side be heard as well).

In the instant case much as the Applicant has split hairs by raising so many issues, this matter must be resolved on the principles outlined in the cases cited and the Statutory Law.

1. Was he subject to the decisions of the Board?
2. Was he given a hearing?
3. Does he deserve any remedies?

The Applicant tries to discredit the Board that it was not duly constituted, and that it had no authority to subject him to any disciplinary procedure.

He however was invited, he attended its meetings and finally, the 1st Respondent reported to the Permanent Secretary, Ministry of Education who asked him to respond to the report of the Board and the action of Respondent No.2.

The 1st Respondent plays an oversight role to monitor and ensure the smooth running of the School.  It does this on behalf of the Ministry of Education.

The Applicant was an employee of the Ministry of Education but immediately supervised by the Head Teacher and the Board.

Claiming that they could not act within their mandate is to say the least an abuse of his calling as a Teacher.

It’s besides the issue that some members could have been irregularly appointed.  This has been explained by the Annextures of the 1st Respondent’s affidavit in reply where anomalies in appointment of members were duly handled.

The Respondents did finally refer their recommendations to the Ministry of Education, having subjected the Applicant to due process.

I find therefore that the Applicant was subject to the authority of the Respondents on behalf of the Ministry of Education.

It is also questionable why he did not include the Ministry of Education in this matter – his ultimate employer?

2. Was he given a hearing?

Yes he was.  He was invited, he was asked to respond, he attended the meetings and a decision was finally made.  (See Annextures to the affidavit of 1st Respondent).   The claim that he was demoted from his acting positions before he was heard cannot stand.  In view of the allegations (serious) against him, it would and was in the best interests of the School that he steps aside to allow investigations to proceed.

He cannot claim that having been stopped meant his fate ws predetermined.

In any case he was finally referred to his employer who would be the ultimate decision maker.

On Remedies:

In view of the above, I find that and agree with the Respondents that this Application is frivolous, vexatious and in utter contempt of his supervisors.  He is not entitled to any remedies.

This Application is dismissed for lack of merits.  The Applicant will pay costs to the Respondents.

Godfrey Namundi

JUDGE

27/3/2015