THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

(CIVIL DIVISION)

 MISCELLANEOUS CAUSE No. 0050 OF 2019

IDUULI DAVID  ::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT

VERSUS       

UGANDA NATIONAL BUREAU OF STANDARDS :::: RESPONDENT

BEFORE HON. MR. JUSTICE BASHAIJA K. ANDREW

RULING:

Iduuli David (the “Applicant”) brought this application against Uganda National Bureau of Standards (the “Respondent”) under Article 28 (1), 44 (c), 42, 139 of the Constitution; Section 33 & 36 Judicature Act Cap 13; Rules 3 and 6, Judicature (Judicial Review) Rules, 2009; seeking the following remedies;

• An order of mandamus doth issue compelling the Respondent to pay the Applicant all his salary and other entitlement since the month of January 2019.
• An order of certiorari doth issue quashing all the proceedings and decisions, if any, of the Respondent and its Disciplinary Committee against the Applicant.
• An order of mandamus doth issue compelling the Respondent to open the Applicant’s office and allow him to perform his security duties without any further interference.
• An order of prohibition doth issue prohibiting the Respondent from any further interference with the Respondent’s work as Head of Security of the Respondent.
• General damages be awarded to the Applicant.
• The costs of this application be provided to the Applicant by the Respondent.

The grounds of the application are elaborated in the supporting affidavit, but are briefly that;

• The Applicant’s right to a fair hearing was derogated.
• The Respondent stopped paying the Applicant without any disciplinary proceedings or interdiction.
• The Respondent purported to summon the Applicant for fair hearing after making the decision and punishing him without any hearing.
• The actions of the Respondent have caused the Applicant serious mental and emotional stress, confusion and inability to fulfill his personal and family obligations.
• It is fair and equitable that the application is allowed.

The application is supported by the affidavit sworn by the Applicant. He states that he is a Security Officer in the Respondent body.  That on 24^th November 2018, he was arrested and detained by Uganda Police at Central Police Station Kampala, on the recommendation of officials of the Respondent on claims that some people who had been arrested stealing some iron bars from the Respondent’s sub-standard goods’ yard had stated that he had also earlier done the same only that he was not caught. That on being arrested, he maintained his innocence and he was granted police bond after staying in detention for one day and upon the file being sent to the Resident State Attorney, he was not charged in court on account of lack of evidence and hence his bond lapsed.  A copy of the Police Bod Form is attached and marked “A”.

That on going back to work, he could not access his office because the Respondent had deleted him from its computer access system and his protests were without success. That the Respondent has since not paid him both his salary and other entitlements for the month of January and February 2019, yet he was neither interdicted nor dismissed from his work.  A copy of my Bank Statements is attached and marked “B”. That the above shows that without hearing from him, the Respondent made a decision to punish him by stopping to pay him hence condemning him unheard.

That when he enquired from the Respondent’s Human Resource Manager as to why he was not receiving his payment and why he was being denied access to the office, no clear answer was given, but on 2^nd January 2019, the Respondent’s Human Resource Manager gave him a memorandum seeking for explanation. A copy of the memorandum is attached and marked “C”.

That in the memorandum, it was alleged that he had absconded from work and that he would show cause why a disciplinary action could not be taken against him. That above memorandum clearly shows that although the Human Resource Manager was claiming to call upon him to show cause why disciplinary proceedings should not be taken against him, a decision had already been made that he should hand over my office without any hearing from him. That on 8^th January 2019, he responded to the above memorandum maintaining his innocence and making it clear that there was no basis for him to hand over his office without an interdiction or termination.  A copy of his response is attached and marked “D”. That on 23^rd January 2019, he was invited to appear before the Respondent’s disciplinary committee on Wednesday 30^th January 2019 after filing his defense on Monday 28^th January 2019.  A copy of the Invitation to the Respondent’s Disciplinary Committee is attached and marked “E”. That at the disciplinary hearing he raised an objection against conducting a hearing when a decision had already been taken against him as evidenced by the fact that his January salary had already been withheld and his internet communication already disconnected but his objection was overruled by the Chairman of the disciplinary committee on ground that the hearing was not in any way connected with salary. That it is also in the last paragraph of the disciplinary committee’s letter that at the time of invitation, there was already a decision that he had absconded from the duty; the reason why he was requested to go with the permission given for his purported stay out of office. That on 28th January 2019, he filed his defense where he maintained his innocence and maintaining that he never absconded from duty.  A copy of my response is attached and marked “F”. That he indeed attended the disciplinary committee proceedings as scheduled where hearing was concluded on the same day and the decision was reserved to be delivered soon. That whereas the disciplinary hearing took place on 30^th January 2019, almost two months now, the committee’s decision has never been delivered, yet he has been denied access to his office and he is not receiving any payment despite his employment not having been terminated. That the above actions of the Respondent have caused him serious mental and emotional stress, confusion and made him unable to fulfill his personal and family obligations. That he swears this affidavit in support of this application.

The Applicant further filed a supplementary affidavit in support of the application. He states that on 5^th March 2019, he filed an application for judicial review against the Respondent in the High Court of Uganda challenging the decision of interfering his work of providing security to the Respondent when he was deterred from entering his office and his salary stopped on allegations of absenteeism. That on serving the Respondent with court documents, management decided to convene a meeting and made a decision to dismiss him from work, in total disregard of the pending suit against them in the matter. (Copy of dismissal letter hereto attached and marked as Annexture “A”). That on receipt of the dismissal letter the Applicant, through my lawyers of M/s. Ojok & Co. Advocates decided to write a letter to the Respondent complaining against their decision to dismiss him without giving him a right of appeal, why they disregarded the court documents and why they refused to pay him his January and February salaries in total contravention of provisions of the Constitution, employment laws and principles of natural justice. That in the same letter, his lawyers also requested for the UNBS Human Resource Manual, minutes of management meeting that established the disciplinary hearing, minutes of the disciplinary hearing and the report of the disciplinary hearing, but the letter was just ignored.  (Copy of letter written to the Respondent by my Lawyers hereto attached and marked as Annexture “B”). That he has been informed by his said lawyers that the act of the Respondent of dismissing him without giving me a right of appeal and after he had sued them, was illegal, irrational, a violation of the rules of natural justice and hence unconstitutional. That he has also been informed by his said lawyers that the act of the Respondent of dismissing him was done in bad faith and was intended to defeat justice. That his contract with the Respondent before dismissal had been renewed effective 3^rd August 2018 and was to run for three years expiring on 2^nd August 2021 (Copy of the renewed contract hereto attached and marked as Annexture “C”).

That since he had a subsisting valid contract with the Respondent for three years (36 Months) that was renewed on 3^rd August 2018 and terminated on 06 Mach 2019, he had only served the Respondent for seven months leaving a balance of twenty-nine (29) months on the contract. That he was being paid a basic salary of UGX.2,304,536/- and a monthly allowance of UGX.1,195,464/- totaling to UGX.3,500,000/- as gross monthly pay (Copy of UNBS payroll for December is attached and marked as Annexture “D”). That by the time the Respondent dismissed him from work, he had missed salary for the month of January and February totaling to UGX.7,000,000/-. That the actions of the Respondent of framing cases of theft against him, causing his arrest and detention, conducting illegal disciplinary hearings and dismissing him from my work without notice, without following their own policy manual, without remorse and without following rules of natural justice greatly affected him and his family, caused him great embarrassment and shame and both physical and psychological torture to which this court should order the Respondent to pay him general damages of UGX.400,000,000/-.

The Respondent filed an affidavit in reply sworn by David Livingstone Ebiru, the Deputy Executive Director – Management and Financial Services of the Respondent. He states that the contents of the affidavit in support and supplementary affidavit of the Applicant are expressly denied and the Applicant shall be put to strict proof thereof. That on 31^st December 2018, the Human Resource Department of the Respondent received a complaint from the Finance and Administration Manager to the effect that the Applicant had not been reporting to work since 24^th November 2018.  [A copy of the complaint dated 31^st December 2018 is annexed as “A”]. That the Applicant’s conduct complained of contravened Section 7.20.3 (b) of the Respondent’s Human Resource Policies and Procedures Manual of 2014 (the “Manual”) which provides that a staff who remains absent from duty without prior permission for a period of at least five (5) days shall be deemed to have absconded from their position; [A copy of an extract of the Manual showing Section 7.20.3 (b) is annexed as “B”]. That by a letter dated 2^nd January 2019, the Respondent requested the Applicant to respond to the allegations of abscondment and explain why disciplinary action should not be taken against him. [copy of the Respondent’s letter of 2^nd January 2019 is Annexture “C”]. That given the sensitive nature of the Applicant’s duties as a Security officer, there was need for someone to perform his duties in his absence hence the request for a handover in the letter of 2^nd January 2019.  That it is expressly denied that by requesting the Applicant to handover, a decision had already been taken in respect of his employment. That in his response of 8^th January 2019, the Applicant stated that his absence from work was due to being detained by the police on the 25^th of November 2018.  That he was released on bond on 29^th November 2018 and ordered by the CID of Police not to come near the Respondent’s offices. [A copy of the Applicant’s letter dated 8^th January 2019 is annexed hereto as “D”. That the Applicant did not inform the Respondent that he had been ordered by police not to report to work and in any event the Respondent never stopped him from reporting to work between 27^th November 2018 and 2^nd January 2019.  

That the Respondent was at all material times unaware of the Applicant’s whereabouts and reasons for his not reporting to work. That on 22^nd January 2019, the Respondent appointed a disciplinary committee whose terms of reference were to, inter alia, hear the allegations of abscondment from work levelled against the Applicant, receive an explanation from the Applicant and subsequently identify whether the Applicant’s absence from work amounted to abscondment under the Manual.

That by letter dated 22^nd January 2019, the Respondent requested the Applicant to submit a written defence by close of business 28^th January 2019 and also invited him to appear before its disciplinary committee on 30^th January 2019 in order to defend himself against the allegations of abscondment from work. [A copy of the Respondent’s letter dated 23^rd of January 2019 is attached hereto as “E”]. That in his reply, the Applicant by his letter of 28^th January 2019, gave a written defence to the allegations leveled against him. [A copy of the Applicant’s letter dated 28^th January 2019 is attached hereto as “F”]. That in February 2019, the disciplinary committee convened and deliberated on the allegations of abscondment leveled against him and the Applicant who was present was given an opportunity to respond to the allegations, which opportunity he took. That following the hearing, the disciplinary committee, upon review of the Applicant’s oral explanation and written defence, made a recommendation that the Applicant should be dismissed from work pursuant to Section 10.3.4.10 of the Manual having absconded from work, abscondment being a grave offence under Section 10.3.3.18 of the Manual.

That subsequent to the said disciplinary hearing, the Respondent in its management meeting held on 4^th March 2019 upheld the recommendations of the disciplinary committee to dismiss the Applicant. [A copy of the Management meeting minutes is annexed as “I”].  

That on 6^th March 2019, the Respondent informed the Applicant of its decision to dismiss him and the procedures through which the said decision had been arrived at. [A copy of the dismissal letter dated 6^th March 2019 is annexed as “J”]. That owing to the Applicant’s abscondment from work since 27^th November 2018, there was no justification to pay him salary during the period that he did not provide any services to the Respondent.  That notwithstanding that, the Respondent paid the Applicant’s salary for the months of January and February 2019 and the claim for salary for those months is misconceived.  That the Applicant’s claim that his dismissal on 6^th March 2019 was a retaliation against his filing of this action on 5^th March 2019 is clearly unfounded because the said dismissal was a result of an elaborate disciplinary process clearly set out in the Manual and highlighted above which started on 31^st December 2018 with a complaint about the Applicant’s abscondment from work. That Applicant was actively involved in the disciplinary process through writing letters and physically appearing before the disciplinary committee to defend himself and his claim of procedural impropriety is without merit. That the Respondent accorded the Applicant a fair hearing prior to his dismissal and paid him all his dues upon the dismissal.  The claims for unpaid salary and allowances and general damages of UGX.400,000,000/- are misconceived and the Applicant shall be put to strict proof thereof. That the Respondent has not made any decision that is harsh and arbitrary to merit judicial review.

Further, that the Respondent is entitled and permitted in law to conduct disciplinary proceedings against its employees and where there is just cause, to dismiss the said employees.  That this claim of judicial review is therefore misconceived and should be struck out with costs. That at the time this application was filed on 5^th March 2019, there was no final decision on the fate of the Applicant, which was made on 6^th March 2019. That this Application was therefore premature and should be struck out with costs. That in any event, the Applicant reserves his rights to file an action of unlawful termination before the Labour Officer/Industrial Court.

In addition, upon instituting this action, the Applicant never served the Respondent with a copy of the Notice of Motion and the affidavit in support.  That the Respondent only retrieved copies of the pleadings from the court record. That the affidavit in support and supplementary affidavit thereof are tainted with falsehoods and should be struck out with costs.

The counsel for the parties filed submissions that are on court record. The following are the issues for determination;

• Whether the Applicant’s grievances are a matter for judicial review.
• Whether the Applicant was given a fair hearing by the Respondent.
• Whether there are any remedies available to the Applicant.

• Whether the Applicant’s grievances are a matter for judicial review.

Resolution of the issues:

Court will start the resolution with issue No.4 as it is the basis of the other issues.

Issue No.1: Whether the Applicant’s grievances are a matter for judicial review.

In Omalla Godfrey vs. Butaleja District Local Government Council & 2 O’rs HCT-04-CV-MA-0153/2014, Kawesa J., stated the basic principle that underpins judicial review that;

“Judicial review is concerned not with the decision but the decision making process.  It involves an assessment of the manner in which the decision is made.  It’s to ensure that public powers are exercised in accordance with basic standards of legality, fairness and rationality.”

The Applicant brought this application for orders under judicial against his employer, the Respondent. According to his affidavits, the Applicant was an employee of the Respondent as Head Security. On 24^th November 2019 he was arrested on recommendation by his employer on the allegations of theft when he had gone to Police to check on the security personnel who had been arrested for stealing iron bars from the sub-standard goods yard.  The Applicant was later released on Police bond but directed by Police to be reporting to Police until further notice. On realizing that the Applicant had been released, the Respondents through the head CID at the Respondent’s premises called the Applicant telling him to come and hand over office as investigations continue, which the Applicant refused to do but reported to office for work.  On reporting to office, the Applicant was denied physical access, his computer was blocked and his supervisor told him to report to the Human Resource Manager.  On reporting to the Human Resource Manager, he was told to make a response in writing to allegations of refusing to hand over office and abscondment.  (See Annexture “C” dated 2^nd January 2019). After making his response (Annexture “D” dated 8^th January 2019) still his office was not opened. The Applicant then received a letter -Annexture “E”, inviting him for a disciplinary hearing. By the time of holding the disciplinary hearing, the Applicant raised the issue of holding the hearing against him when he had already been constructively dismissed by being denied salary and entry to office without interdiction, but the committee flatly told him that the reason for convening a disciplinary hearing was abscondment not issues of salary. According to the Applicant, the decision to conduct a disciplinary hearing was done when he had already been constructively dismissed and removed from office without interdiction, as he was denied salary and he claims that he was not given a fair hearing, and that the decision was made irrationally, and the that management acted with bias. Clearly, his prayer seeks an order for certiorari to quash the decision made by both disciplinary and management committees, mandamus compelling the Respondents to reinstate him back to his office and for prohibition prohibiting the Respondent from interference with his work.  This case is therefore appropriate for judicial review.

Issue No. 2: Whether the Applicant was given a fair hearing by the Respondent.

The right to fair hearing is rooted in Article 42 and 44 (c) of the Constitution.  It is a non derogable right.  In the case of Isaac Nsereko vs. MTN Uganda Ltd HCCS No. 156 of 2012; court defined a right to a fair hearing as follows;

“It is an elementary principle in our administration of justice that a fair hearing, within a reasonable time, is ordinarily a judicial investigation and listening to evidence and arguments, conducted impartially in accordance with the fundamental principles of justice and due process of law of which a party has had reasonable opportunity to prepare, at which he is permitted to have the assistance of a lawyer of his choice as he may afford and during which he has a right to present his witnesses and evidence in his favour, a right to cross-examine his adversary’s witnesses, a right to be appraised of the evidence against him in the matter so that he will be fully aware of the basis of the adverse view of him for the judgment, a right to argue that a decision be made in accordance with the law and evidence.” Court further quoted

the case of Kanda vs. Government of Malaysia [1962] AC 322-337 where it was held that;

“If the right to be heard is to be a real right which is worth anything, it must carry in the accused man, the right for him to know the case against him. He must know what evidence has been given and what statements have been made affecting him, and then, he must be given a fair opportunity to correct and contradict them.”

From the affidavits of the Applicant, it is claimed that he never got a fair hearing.  That claim appears to be justified based on a number of reasons. Firstly, the decision to terminate him was made even before the hearing could be conducted.  This is easily discernible in paragraphs 4-13 of the Applicant’s affidavit in support, where it is incontrovertibly stated that by the time the disciplinary hearing was held, the Applicant’s communication with the Respondent through internet had already been disconnected, he was denied physical access to his office and he was not being paid salary yet he had never been interdicted.  It was not until after he refused to hand over office that the HRM established disciplinary hearing.  In paragraph 12 of his affidavit in support, it is also clear that when the Applicant objected to being subjected to a disciplinary hearing when he was not being paid, he was overruled by the Chairman on the ground that the hearing was not in any way connected with salary. Further, in paragraph 17 of the Respondent’s affidavit in reply, the Respondent admits that indeed they never paid the Applicant’s salary giving a reason that he was no-longer working.  The disciplinary hearing was therefore held merely to rubber-stamp the decision to dismiss which was already taken.

The other instance that validates the Applicant’s claim is that during the hearing, he was neither informed of the necessity of witnesses nor given a chance to cross-examine them if any. In the report of the disciplinary hearing (Annexture “G” to the Respondent’s affidavit in reply) it is claimed that the committee interviewed six witnesses in relation to the hearing. It is not known who those witnesses were as no copy of the minutes of the hearing were attached other than the report.  In his affidavit in rejoinder (paragraphs 9-11), the Applicant insists that he never interacted with any of the said witnesses before, during, or after the hearing.  He states that he never knew and was never informed that there were any witnesses. There was no response to this. In light of those facts, the Applicant was never given a fair hearing. He never cross-examined the witnesses who are said to have testified against him.

The other instance that validates the Applicant claim is that he was never given any chance to challenge the decision of the management committee either through defending himself or appealing against its decision. Whereas the management sat as an appeal committee, it never gave the Applicant a chance to present his case.  As if that refusal to accord the Applicant a chance to present his case on appeal was not bad enough, the management committee never gave the Applicant a chance to appeal its decision. This was invariably contrary to the Respondent’s Human Resource Management Policies and Procedures Manual (HRM & PM) paragraphs 11.3.2 and 11.3.3; which give a right of appeal.

Apart from the above, it is also noted that the management committee that made the decision to dismiss the Applicant was not properly constituted. Some of the members who sat on the management committee which recommended the dismissal of the Applicant are the same members who sat on the management committee and upheld the decision of the disciplinary committee to dismiss the Applicant. A cursory look at Annexture “G” the report of the disciplinary hearing, with the minutes of the management committee, shows that the members who participated in decision making on both committees are; David Livingstone Ebiru who chaired the disciplinary committee and Timothy Sekandi the Internal Auditor. A decision made by such a committee is highly likely to be biased due to the failure to comply with principles of natural justice. Therefore, such a decision cannot be allowed to stand.  In the case of Kamusa & Sons Enterprises vs. Koboko District Local Government (Civil Suit No. 0010 of 2008; court quoted H.W. R. Wade in his book Administrative Law 5^th Edition Chap.15 at page 43; and held as follows;

“Judgments dealing with administrative decisions therefore proceed on the footing that the presence of bias means that the tribunal is improperly constituted so that it had no power to determine the case and accordingly its decisions must be void and a nullity.”

Adopting the above same reasoning, the decisions made by both the disciplinary and disciplinary management committees of the Respondent were made in total disregard of the right to a fair hearing and contrary to the principles of natural justice and therefore they cannot be left to stand in the eyes of the law and equity. They are null and void.

Issue No.3: What remedies are available to the parties?

Having found as above, the application succeeds and it is allowed. In his affidavit in support, the Applicant prayed for an order of, certiorari to quash the decision made by both disciplinary and management committees, mandamus compelling the Respondents to reinstate him back to his office and for prohibition, prohibiting the Respondent from interference with his work.  Since the Applicant has ably proved that this is a proper case for judicial review, his prayers are therefore granted save for the prayer of an order of mandamus compelling the Respondents to reinstate him back to his office and for prohibition, prohibiting the Respondent from interference with his work.

It is noted from paragraph 3 of his supplementary affidavit that the Applicant contends that after serving the Respondent with court documents intended to quash the proceedings of the disciplinary committee, the Respondent hurriedly convened the Management Committee which hurriedly and without first filing an affidavit in reply, affirmed the decision of the disciplinary committee to dismiss and denied the Applicant the right to appeal. By this action, it is clear that the Respondent was ready for any decision of court other than the one that grants the Applicant a right of reinstatement.

Section 98 of the Civil Procedure Act bestows inherent powers on the High Court to make such orders as may be necessary for the ends of justice.  Therefore, pursuant to Sections 14 and 33 of the Judicature Act and Section 98 of the Civil Procedure Act, this court orders for the compensation of the Applicant, in line with Section 71 (5) of the Employment Act and principles in the case of Omunyokol Akol Johnson vs. Attorney General SCCA No. 06 of 2012 where the Supreme Court stated;

“The provisions of this Section give powers to a court to order reinstatement of an employee in the circumstances set therein. The same section sets out circumstances under which an employee may not be reinstated in his job. One of such circumstance is where the employee has been wrongly dismissed. The appellant was wrongfully dismissed from his job. He could only be reinstated if there was evidence that the employer was ready and willing to take him back.”

In that case court then ordered for compensation. Like was in the case of Omunyakol Akol Johnson vs. Attorney General (supra) the applicant herein was wrongly dismissed and the Respondent did everything possible not to allow him to come back in his office.  The best option in the circumstances, therefore, would be compensation.

Under paragraphs 8-10 of the Applicant’s supplementary affidavit and Annexture “C” to the supplementary affidavit the employment contract, the Applicant had a three- year running contract that he had served seven months only; i.e. from 3^rd August 2018 – February 2019 remaining 29 months. The Applicant was earning a gross salary of UGX.3.5M/₌.  3.5M/₌ x 29 months = 101,500,000/=. The Applicant should, therefore, be paid One hundred and one million five hundred thousand shillings only, which is the amount equivalent to the remaining part of the contract.

Also in paragraph 12 of the contract of employment (Annexture “C” of the supplementary affidavit) the Applicant is entitled to the gratuity of 25% of the total annual gross salary; 25% of 126m/₌ which is UGX 31.5m/_=. This court orders that the Respondent pays the amount to the Applicant as his gratuity.

In paragraph 12 of his supplementary affidavit, the Applicant claims UGX.400 million in general damages; which court considers rather on a higher side in the circumstances. Considering the physical and psychological torture he was subjected to after being framed with cases of theft, Police detention and the shame he was subjected to among fellow workers, friends and family not forgetting illegal disciplinary hearings against him, the Applicant is awarded UGX.60 million as general damages in the circumstances.

All the above-awarded amounts of compensation, gratuity, and general damages shall attract interest at a rate of 10% from the date of this judgment till payment in full. The Applicant is also awarded cost of this application.

BASHAIJA K. ANDREW

JUDGE

06/03/2020