THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT  MPIGI

MISC. CAUSE NO. 15 OF 2017

FOR JUDICIAL REVIEW

AND

IN THE MATTER OF AN APPLICATION BY

SYLVIA NAKITTO:::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT

Versus

THE MANAGEMENT COMMITTEE OF

ST. LAWRENCE CITIZENS HIGH  SCHOOL (CREAMLAND CAMPUS-NABBINGO):::::::::::::::::::::::::::::::::::::::RESPONDENT

BEFORE:  HON. JUSTICE WILSON MASALU MUSENE

RULING

The Applicant, Sylvia Nakitto filed  this application  against  the Respondent,  The Management Committee of St Lawrence Citizens High School (Creamland Campus-Nabbingo).

The applicant was represented by Mr.  Gedeon Munungu, while the Respondent was represented by M/S   Florence  Nagawa of M/S Asiimwe, Namawejje  &Co. Advocates.

The Application by Notice of Motion under Article  42  of the constitution, Section 36  of the judicature  Act and Rules  6,7,8 of the judicature  (Judicial Review) Rules was seeking  for orders/ reliefs that:-

1. A declaration  that the indefinite suspension of the applicant from the Respondent School without affording her a hearing  is null and void in  so far as it contravened the rules of natural justice.
2. An order  of certiorari be granted and the order of indefinite suspension be removed to the high Court  and  quashed.
3. An order of mandamus be granted ordering the Respondent to admit the applicant back into school.
4. An order of prohibition be granted prohibiting the Respondent from  harassing, intimidating and or molesting the applicant in any way while  at the respondent school.
5. An order that the respondent pays  damages for wrongfully  suspending the applicant  indefinitely, anxiety, mental stress and inconvenience.

The Application was supported by the affidavit of Sylvia Nakitto the Applicant and Deogratious  Kibirige the father, but briefly the grounds are:-

1. That the Applicant was not given any hearing before being indefinitely suspended from school .
2. That the applicant had been sent  home to pick a balance of school fees only to learn while at her home in Lira district  that she had been indefinitely suspended  from school.
3. That the Applicant was never told about any  wrong that  she  could have committed not of her impending  indefinite suspension.
4. That the applicant only  came to learn about her  indefinite suspension from her father who also learnt of the same when he went to school to clear the applicant’s school fees.
5. That failure by the respondent to inform the applicant about the school rules she had broken and  failure to give her a hearing before dismissal was arbitrary , irregular,  high handed and null and void for contravening the rules of natural justice
6. That it is  fair and equitable that this application is granted.

Counsel for the Respondent opposed the Aplication vehemently,  and also relied on the affidavit in reply  sworn by Nakimuli Angella, the head teacher of St Lawrence Citizens’ High School, (Cream land Campus), Nabbingo.  The salient points are contained in paragraphs  3,4,5,6,8,9,10,13,15,18,22,25 and 27.

They are reproduced herein below:-

3)         That I have been advised by our aforesaid lawyers which advice I verily believe to be true that the applicant’s application is grossly misconceived, bad in law, an abuse of court process, frivolous and vexatious, brought in bad faith and court shall be moved on a point of law at a preliminary stage to have the same struck out with costs.

4)         That  the  above  notwithstanding, the contents of paragraphs 1,2 and 3 of the affidavit of the applicant are correct and confirm that she has been pursuing  her “A” Level at the school and subscribed  to strictly  adhere to the school rules  on 8/6/2016.  (See copy of  her admission form attached hereto and marked “A”).

5)         That reply to paragraphs 4,5,6,7,8,9,10,11,12,13 & 16, on  the 12^th October 2017,I and my Deputy Mr. Opumar Onyait Godfrey, signed several school fees demand notices for students to take home for their parents to clear  the outstanding school fees balances.

6)         That these  notices were handed to the respective  students who immediately left the school premises to collect the outstanding balances of their school fees, and the Applicant was among  them. (See  the cop  of the demand notice  attached hereto & Marked  “B”).

7)         That the Applicant left the school premises shortly  before I was briefed about the events of the previous  nights’ school dance on 11^th  October, 2017.

9)         That the trio with the assistance of the other present members of staff, lined up students according to their campus  and gender and smelt each  students breath for alcohol intake  against School rule 11 which is Strictly forbidden.

10)       That by the end of the screening  exercise  some alcohol was recovered and about 20  students were  implicated their breach having been found smelling alcohol and that included the applicant who had been screened by Ms Nalikka Victoria  and her breach smelt  alcohol, a fact that was confirmed  by Matron  who together with Ms Nalikka were conducting the girls screening.

13)       That we then summoned  all the implicated students at the office and signed them each of them a pass out form  indicating  the reason of their release and the date of return to school for their DC  hearing among other details like name etc.

15)       That in light to the foregoing, I personally called the applicants’ father  Mr. Deogratious kibirige and informed himt hat the applicant  had been implicated for alcohol intake  at School contrary to the school rules and regulation and was required to report back with her on the 16^th October, 2017  to appear before the Disciplinary Committee.

18)       That on the 16^th  October, 2017, engaged in administrative duties, I delegated my Deputy  who also  deputizes me on the DC  and who had been present on 11^th October  during the screening , to convene the committee for Nakitto’s hearing.

22)       That the applicant’s absence and her father’s election to appear without the applicant contrary to our instructions to appear with her, was construed as lack of defence on the applicants’ part, utter  content to the DC and school administration and DC they indefinitely suspended the applicant.  (See copy of the  letter handover to the applicant’s  father dated 16/10/2017 marked “D”).

25)       That in further reply to paragraph 14,  the  Applicant is a very indiscipline and rebellious  student even after  several warnings, defiantly continued to contravene  the school rules and regulations and has become unfit  to interact  with the rest of the other students, as she  could influence them negatively..

27)       That in reply  to paragraph 15, applicant is not likely to suffer any irreparable  damages  as she  has  been allowed  to sit  her exams  escorted  by a parent to ensure  strictly adherence to the rules and regulation for the school and the exams  and avoid any further bad influence of the other students.  (See annexure “D”).

Mr. Gedeon Munungu for the Applicant  emphasized  that the decision to suspend  the applicant indefinitely contravenes the rules of Natural justice as the applicant was not informed of the school  rules she had broken and was not heard in her Defence.

He also added that the applicant is  about  to sit for her Senior six  exams  and her parents stay in Lira, very distant from the  school.  Counsel  emphasized that the Respondent is created by the statute and governed under the Education Act and Regulations and therefore Amenable to judicial review. He also  prayed for General damages of shs 50,000,000/=  for the  inconvenience caused and costs.  Counsel for the Respondent raised a preliminary point that the   decision of disciplining the Applicant is private in  nature and does not constitute  exercise of statutory  power  necessitating  Judicial Review, and therefore the application was not proper.

She emphasized that Judicial Review concerns decisions made by Public bodies and not discipline of students and staff by schools.  She  also talked of the school being  private and not public  school under  government.

In the   alternative, she submitted that the applicant was  summoned with the father but did not come and that the applicant is unfit to interact with other students as she can influence  them negatively.

I have carefully  considered the oral  submissions  on both sides and studied the pleadings   on record.  I hasten  to point out that the law on Judicial  Review  in Uganda  is now settled.  The powers of Judicial Review  by the  High court  do not only cover  Judicial  and  Quisi Judicial bodies  but also Administrative decisions and actions of statutory  bodies,  authorities or persons exercising Statutory  Authority.  The Respondent in  this case, St Lawrence and its Management  Committee are created by the Education (Pre-Primary, Primary and Post Primary)  Act of 2008 to manage a school declared  or authorized by the Ministry of Education, or District Education Officer as enshrined of the Act.  There is no distinction between government owned  or privately  owned  schools as counsel for the Respondent was trying  raise in her preliminary  objections. All schools and  institutions of Higher  learning are governed  and licenced under the Education Act and the  Regulations made there under and they are all public  institutions which attract all types of students from all over the country and outside.  There is therefore no distinction  between private or government owned  schools as far as  the laws  of Uganda,  including  the Supreme  Law, (the  Constitution) are  concerned.  St Lawrence  Citizens High School, duly licenced to operate in Uganda  under the Education Act and Regulations  there under is therefore a body whose actions are subject to judicial Review.   The case of Harriet Grace Bamale, through  next  friend vs Board of Governors of Makerere College School  (1993) KALR 10, is in point.  The preliminary  objection by counsel for the Respondent is therefore hereby rejected.

I now  turn to the merits of the case.  Judicial Review can only be granted on three grounds, namely illegality, irrationality and procedural impropriety.  This has been emphasized in  many cases, including  by the Court  of appeal of Uganda  in Aggrey  Bwire vs Attorney  & another [2009] 1, U.L.R 240. Procedural  impropriety  is a  procedural  ground which aims at the decision making  procedure rather than the content of the decision itself.  In the present application, the concern of this  Court is not whether or not the decision to suspend  the applicant, Slyvia  Nakitto was right  or  wrong.  The concern of this court is whether proper  process and procedure  was  followed  leading to the indefinite suspension of the applicant, and moreover at such a critical  time when she is about to sit for her final Senior six exams.

Counsel for the applicant has  submitted that the applicant was never informed  of any offence she had committed  and was never heard by the  disciplinary committee of St Lawrence  Citizens  High School,  Creamland Campus, Nabbingo. He concluded that failure to act with procedural  fairness was not proper and was a violation of Natural Justice.

In response  and from the affidavit in reply,  under paragraphs  5,6, and 7, the Applicant was on the 12/10/2017 sent  home to collect the balance of school fees.  Then under  paragraphs  9,10,11 and 12, it  was after the applicant  had been sent home for school fees when the matron  one M/s Nakalyowa Gladys and Warden Mr. Joseph Mukisa informed  the Head teacher, Nakimuli Angella  that the applicant had been among the  students whom they smelt alcohol from.  Surely  for all practical  purposes  and intends, the applicant and the other students   implicated in alcohol  consumption  should  have been arraigned before the head teacher,  Nakimuli Angella,  immediately with   evidence of alleged  waragi sachets before being sent  home.  The alleged offence of alcohol  consumption   was therefore an afterthought.  In any case,  both M/S  Nakalyowa  Gladys and Mr. Joseph  Mukisa who allegedly informed  the head teacher, Nakimuli Angella  have not sworn any affidavits to that effect.  That leaves the affidavit  evidence of Nakimuli  Angella  hanging, unsupported  allegations, hearsay  and not admissible  or believable by any court or tribunal.

In such circumstances, I find and hold that the submissions by counsel for the Respondent that the applicant was heard before suspension are not supported by any credible evidence and accordingly rejected

Counsel for the Applicant submitted that the right  to  fair  hearing  under Article  28 (3)  of the constitution is a non-Derrogable right under the constitution.  That  is indeed the correct position of the law, which is in accordance with the  principles of natural Justice.   As  was held in Kulwo Joseph Andrew &others  vs Attorney General & 6 others  Miscellaneous Application No. 106 of 2010  by Y Bamwine J as he then was,   judicial Review, involves  the assessment of the manner in which the decision is made.  The jurisdiction is exercised in supervisory manner, not to  vindicate the rights as such, but to ensure  that public powers are exercised in accordance with the basic  standards of  legality, fairness and  rationality.

I entirely agree with the holding in the above case and it is applicable to the  present case whereby the powers of the Disciplinary committee of St Lawrence  Citizens’ High School  have to be exercised with all fairness and due process and not high handedly and hatefully as was done.

The other Humanitarian point to consider is that the applicant is a senior Six student who is about to sit for her final exams. And neither the school Administration or counsel for the Respondent have disputed  the fact that she stays in lira in Northern Uganda.  It is a fact that  lira is hundreds of miles  away from St Lawrence  Citizens  High School  and this court will therefore not stand by and allow the Applicant who, in a period of one month or so will be done with her revision   and  exams,  to be subjected to such  a harsh suspension  without  having been heard.  To do so would be  un fair  and result  into grave injustice.  The allegation that the applicant will influence other students negatively is unsupported and evidence from the bar which is not allowed  by this Court.

In conclusion therefore, I do hereby allow  the application and make the following orders:-

1. The indefinite suspension of Sylivia Nakitto from the Respondent School is nullified.
2. An order of mandamus is hereby granted directing the Respondent to admit the Applicant back to school till she completes her Senior Six  U.A.C.E examination.
3. An order prohibiting the Respondent from harassing, intimidating or molesting the Applicant, Sylivia Nakitto while at the school.  The apparent hatred of the applicant must  stop.
4. Costs of this application be paid by Respondent.

I decline to make an order for general damages against the Respondent in the interests of peaceful co-existence and reconciliation.

………………………..

W. Masalu Musene

Judge

7/11/2017.