THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
(CIVIL DIVISION)
MISCELLANEOUS CAUSE NO. 165 OF 2022
SARAH ALELE ================================= APPLICANT
VERSUS
UGANDA POST LIMITED
ROSETTE ATUKUNDA ========================= RESPONDENT
BEFORE: HON. JUSTICE EMMANUEL BAGUMA
RULING
Background.
The Applicant who was an employee of the Respondent on contract basis was on the
11th day of July 2022 suspended from duty by the 1st Respondent’s Human Resource
officer (the 2nd Respondent). The Applicant being dissatisfied with the decision of
the Respondent applied for judicial review in the court.
The application.
This application is brought under Articles 28, 42 & 44 of the 1995 Constitution of
the Republic of Uganda [as amended] , Sections 33 & 36 of the Judicature
Act,Cap.13 [as amended],Section 98 of the Civil Procedure Act,Cap.71, Rules 5,6,7
& 8 of The Judicature [Judicial Review][Amendment] Rules, SI No.32 of 2019 and
Order 52 r 1,2 &3 of The Civil Procedures Rules SI.71-1 seeking for orders that :-
1.An order of Certiorari be issued against the respondents quashing the
decision or act of the 2nd respondent by which the applicant was suspended
from her employment,
2. A declaration to the effect that the decision or act of the 2nd respondent
acting in the capacity as Head, Human Resources & Administration of the 1 st
respondent in suspending the applicant from her employment is null and void
in so far as the applicant was not accorded fair hearing,
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3.An order of Mandamus directing the 1st & 2nd respondents to restore the
applicant to her former position with her salaries, emoluments and benefits,
4.An injunction doth issue restraining the respondents from further
threatening and interfering with the applicant’s position, salaries, emoluments
and benefits as the Regional Supervisor except on reasonable and justifiable
reasons,
5.An award of general damages against the respondents for inconveniences,
mental anguish, sufferings, psychological tortures, trauma and embarrassment
suffered by the applicant,
6.An award of punitive damages against the 2nd respondent and cost of this
application.
The application is supported by the affidavit of Ms Sarah Alele the applicant whose
details are on record but briefly states that;-
1. I am an employee of the Respondent since 9th December 2009 in different
capacities and currently the regional supervisor stationed at Gulu.
2. On the 17th June 2022, I was transferred by the 2nd Respondent from Gulu
Region to Fort Portal as Regional Supervisor.
3. Upon my transfer from Gulu Regional to Fort Portal Region, the Respondents
abdicated their duties and responsibilities when they refused to provide me
with transfer allowances.
4. The Respondents further abdicated their duties and responsibilities when they
failed to pay salaries for the last six months making life extremely hard and
unbearable.
5. I had been sick and often given bed rest following pregnancy and on 21 st June
2022, I returned back to Hospital for review where the Doctor recommended
for 30 days off duty to allow quick recovery. I brought this to the attention of
the respondents who advised me to apply for sick leave.
6. I immediately applied for sick leave to the Respondent on 24 th June 2022
through Expedited Mail Services (Speed Post) Bill.
7. My sick leave was deliberately ignored by the respondent who refused to reply
the same to date but instead on 11th July 2022, the 2nd Respondent simply
suspended me from duty without hearing.
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8. I was never given an opportunity to be heard against the allegations leading
to my suspension before I was suspended.
9. I have been advised by lawyers which advice I believe to be true that that I
am entitled to a right to be heard and treated fairly and just in administrative
process.
The respondents in an affidavit in reply sworn by Rosette Atukunda the 2nd
Respondent and the head Human Resource & Administration opposed the
application and briefly stated that; -
1. The applicant’s application is incompetent, bad in law, premature and the
Respondent’s lawyer shall seek leave to cross examine the applicant on his
affidavit.
2. The Respondents were not aware of the applicant’s health challenges until
when she was transferred to another place of work.
3. The alleged medical documents supporting the applicant’s health condition
were never shared with the Respondent nor with the applicant’s immediate
supervisor and no hard copies were availed at the time.
4. All regional supervisors were transferred to different regions and that is when
the applicant stated that she could not report to her new station of work
because she was ill.
5. The claim for salary arrears dating back to 6 months was brought in a wrong
forum, out of time and barred by judicial review.
6. The alleged leave application forms and medical documents were never
received by people mandated to authorize the said leave.
7. The applicant was advised to apply for sick leave however, no sick leave
application had ever been made/received, neither brought to the attention of
the head of department nor approved by the head of department.
8. On 6th July 2022, I requested via email from the applicant to submit an
explanation as to why she had not been coming to work and also advised her
to apply for sick leave. She respondent by email on 18th July 2022 stating that
she could not respondent to the email due to poor health.
9. The applicant was suspended from duty with immediate effect following her
abscondment from duty for a period of over one month and informed that she
would be invited for a disciplinary hearing on date to be communicated.
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10.The applicant was invited for a disciplinary hearing on 16th August 2022 but
instead of attending the same, the applicant proceeded to court albeit to defeat
the due process of decision making.
11.I have been advised by lawyers of the 1st Respondent legal department that
the application is premature because no decision was taken against the
Applicant.
12.The applicant is on suspension pending disciplinary proceedings and the said
process is legal.
In rejoinder, the applicant reiterated her averments in chief but added that she
received the invitation for displinary hearing after she had filed the matter in court
challenging the decision of the respondent to suspend her.
Legal representation.
Mr. Ecar Pius of GDE Advocates represented the applicant while Ms Mayanja Alice
from Uganda Post limited legal department represented the Respondent.
At the hearing of this application, both parties agreed to file written submissions and
counsel for the applicant stated that he will frame two for court’s determination to
wit;-
1. Whether or not the applicant was accorded fair hearing?
2. What remedies are available to the parties?
Submissions by counsel for the applicant on issue No. 1
Counsel for the Applicant submitted that the jurisprudence developed by the Court
of Appeal in Judicial Review is founded in the case of; His Worship Aggrey Bwire
-Vs- Attorney General & Judicial Service Commission [2009]1 Ulr 240, Where it
was held:
“That Judicial Review can only be granted on three grounds namely;- illegality,
irrationality and procedural impropriety”.
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Counsel referred to the case of Commissioner Of Land . Vs. Kunste Hotel Ltd
[1995-1998]1EA (CAK), where Court noted that; -
“Judicial review is concerned not with the private rights or the merits of the
decision being challenged but with the decision making process. Its purpose is to
ensure that an individual is given fair treatment by an authority to which he/she
is being subjected”.
Counsel submitted that the gist of this application is seeking for reliefs and orders
for judicial review contained under paragraphs 21,22 and 23 of the affidavit in
support of Notice of Motion respectively.
Under paragraph 21 of the affidavit in support, the applicant states that “My sick
leave request was welcomed with a lot of hostilities as the respondents deliberately
ignored and refused to give me the feedback for the same to date, but, instead, on
the 11th July 2022, the 2nd respondent in her own wisdom simply decided to
arbitrarily suspend me from duty without hearing”.
The applicant further under paragraphs 22 & 23 opined that the allegations leading
to her suspension from duty by the 2nd respondent were baseless, unfounded and
brought in bad faith and that she was never given an opportunity to be heard.
Counsel referred to Article 28 (1) of the Constitution which provides that; -
“in 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”.
He also referred to Article 44 which provides that; -
“notwithstanding anything in this constitution, there shall be no derogation from
the enjoyment of the following rights and freedom (a)… … … (b)…
……(c) the right to fair hearing (d)… … …”
Counsel submitted that Articles 28 and 44 (c) of the 1995 Constitution were not
considered when the decision or the act was made and thus the applicant should have
been heard before making the decision to suspend her from employment as it was in
the case of National Council for Higher Education Vs. Anifa Kawooya Bangirana
Constitutional Appeal No.4 Of 2011 rendering the impugned decision ultra vires.
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Counsel further relied on the case of Twinomuhangi Vs.Kabale District & Others
[2006] HCB 130, where court held that; -
“Procedural impropriety is when there is a failure to act fairly on the part of the
decision making authority in the process of making a decision. The unfairness
may be in the non observance of rules of natural justice or to act with procedural
fairness towards one to be affected by the decision. It may also involve failure to
adhere and observe procedural rules expressly laid down in a statute or legislative
instrument by which such authority exercises jurisdiction to make a decision”.
Counsel concluded that the decision of the Respondents to suspend the applicant
without according her a hearing was illegal, irrational, procedurally improper and a
total violation of the principles of natural justice.
Issue No.2.
What remedies are available to the parties?.
Counsel for the applicant prayed that the applicant be granted the remedies sought
in that motion that is quash the decision of the Respondents to suspend her, restore
her in her position of employment, award general and punitive damages and issues
an injunction restraining the Respondents from further unreasonably interfere with
her employment.
Submissions by counsel for the Respondent.
In his written submissions, Counsel for the Respondent raised two preliminary
objections however, at hearing he had not indicated that he will raise any PO.
Accordingly, the same will not be considered and I will proceed with his written
submissions on the merits of the application.
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Issue No. 1.
Whether the applicant was accorded a fair hearing.
Counsel submitted that Natural justice envisages a right to fair hearing. In Uganda,
the rules of natural justice are embedded i n the Constitution under Articles, 28, 42
and 44 which guarantee every person a right to a fair hearing before an
administrative body.
Counsel referred to Halsbury’s Laws of England 5th Edition 2010 Vol. 61 para
639, where it is stated that;
“The rule that no person shall be condemned unless that person has
been give prior notice of the allegations against him/her and a fair
opportunity to be heard (the audi alteram partem rule) is a fundamental
principle of justice. This rule has been refined and adopted to govern the
proceedings of bodies other than judicial tribunals; and a duty to act in
conformity with the rule has been imposed by the common law on
administrative bodies not required by statute or contract, to conduct
themselves in a manner analogous to courts.”
Counsel submitted that the applicant stated in paragraph 24 of her affidavit in
support that she was suspended from work without according her a fair hearing. This
was rebutted by the 2nd respondent in her affidavit in reply when she stated that on
advice of the 1st respondent’s lawyers, it is not a requirement for a hearing to be
conducted before suspending an employee.
He stated that the right to suspend an employee is reserved in Section 63 (1) of the
Employment Act where the employer is conducting an inquiry and has reason to
believe may reveal a cause to dismiss an employee, the employer may suspend an
employee with half pay.
Counsel submitted that the applicant having absconded from work and this being an
act that is likely to amount to gross misconduct, it was imperative that a suspension
be issued and investigations be conducted as required by Section 11.4.3 (b) (i) of
Posta Uganda Employee Regulations Terms and Conditions of Service. The 2nd
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respondent deponed in paragraph 13 of her affidavit in reply that she suspended the
applicant when she absconded from work and informed her that she would be
required to attend disciplinary hearing at a later date.
Counsel submitted that It is thus not a requirement of law for the applicant to be
afforded a fair hearing before suspension from work. The fair hearing would only be
accorded to her at the stage of disciplinary hearing where she was invited and she
didn’t attend, but instead filed this claim. As of today, no decision has been made so
as to prevent abuse of court process and being in contempt of court.
Counsel submitted that the application is premature as there was no decision made.
Since judicial review is about the decision making process, there was no decision
made as the process was supposed to commence at disciplinary hearing stage which
has not taken place because the applicant opted to lodge this claim in court.
Counsel referred to the case of Persis Namuganza Vs Attorney General HCMC
No. 111 of 2022; where court stated that;
“the applicant seems to confuse the right to just and fair treatment in administrative
decisions under Article 42 with the right to a fair hearing under Article 28 of the
Constitution. The two rights are quite different and distinct since the latter is only
applicable before an independent and impartial court or tribunal established by law.
Therefore, Parliamentary proceedings or investigations cannot be treated as court
proceedings in order to require a fair hearing as envisaged under Article 28 of the
Constitution”
Counsel concluded that the applicant’s claim would be proper for judicial review if
she had appeared before the disciplinary hearing committee (which is an impartial
quasi-judicial body) and made its decision. The applicant confused fair and just
treatment with fair hearing. Suspending the applicant so as to conduct investigations
into her conduct does not require a fair hearing nor fair and just treatment until she
appears before the disciplinary hearing committee to which she was invited.
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Issue No. 2.
What remedies are available to the parties?
Counsel prayed that the application be dismissed with costs for being premature.
Analysis of court.
Issue No. 1
Whether or not the applicant was accorded fair hearing?
In the case of Commissioner of Land Vs. Kunste Hotel Ltd [1995-1998]1EA (CAK),
Court noted that; -
“Judicial review is concerned not with the private rights or the merits of the
decision being challenged but with the decision making process. Its purpose is to
ensure that an individual is given fair treatment by an authority to which he/she
is being subjected”.
Also in the case of Lloyd v Me Mahon [1987] AC 625 at 702 Lord Bridge succinctly
put it that:
" the so called rules of natural justice are not engraved on tablets of stone.
To use the phrase which better expresses the underlying concept, what the
requirement of fairness demands when anybody, domestic, administrative or
judicial, has to make a decision which will affect the rights of individuals
depends on the character of the decision-making, the kind of decision it has
to make and the statutory or other framework in which it operates."
Section 63(2) of the employment act 2006 states that;-
“the employer in conducting an inquiry that he/she has reason to
believe may reveal a cause for the dismissal of an employee, may
suspend the employee for a period not exceeding 4 weeks or period
of inquiry whichever is shorter.”
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In the instant case, the applicant absconded from duty and she was suspended on 11th
July 2022, she received the same suspension letter on 18 th July 2022, in the same
letter it was indicated that she will soon be called for a disciplinary hearing. The
invitation for disciplinary hearing was issued on 16th August 2022 but the applicant
had filed this suit in court on 12th August 2022.
When the applicant was invited for the disciplinary hearing, she refused to go stating
that the same is overtaken by events since she had already filed a suit.
It is my considered view that the Respondent acted within a reasonable time to invite
the applicant for the disciplinary hearing given the fact that this is a government
corporation with procedures to follow but the Applicant rushed to court to challenge
the suspension which pre-emptied the disciplinary hearing.
The Respondent was in the process of according the Applicant a right to be heard
within a reasonable time but it was frustrated by the prompt filing of the judicial
review challenging the suspension.
The suspension in this particular case was not a punishment to the applicant but
rather a mean to allow investigations to be carried out in the conduct applicant which
findings would help in the disciplinary hearing.
Basing on the above analysis, this application was premature.
Accordingly, this issue fails.
Issue No. 2
What remedies are available to the parties
Having found that the applicant has not established any grounds for judicial review,
She is not entitled to the remedies sought.
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Conclusion.
In the final result, this application is dismissed with the following orders;
1. The application is hereby dismissed.
2. Let the Respondent proceed and conduct a disciplinary hearing of the
Applicant’s matter.
3. Considering the nature and circumstances of this judicial review, No
order as to costs.
Dated, signed, sealed and delivered by email at Kampala this 28th day of April
2023
Emmanuel Baguma
Judge
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