[2023] UGIC 103


# **THE REPUBLIC OF UGANDA IN THE INDUSTRIAL COURT OF UGANDA AT KAMPALA MISCELLANEOUS CAUSE NO. 001 OF 2023** *(Arising from M. C 002 of2022)*

**ALEPUS CHRISTINE::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT**

#### **VERSUS**

- **1. GOMBA DISTRICT LOCAL GOVERNMENT** - **RESPONDENT 2. THE CHIEF ADMINISTRATIVE OFFICER GOMBA DISTRICT LOCAL GOVERNMENT:**

## **BEFORE:**

The Hon. Mr. Justice Anthony Wabwire Musana

### **THE PANELISTS:**

- Hon. Jimmy Musimbi, 1. - Hon. Robinah Kagoye & 2. - Hon. Can Amos Lapenga **3.**

## **RULING**

#### **Introduction**

- [1] Ms. Christine Alepus *(the Applicant)* was the headteacher at Kandegeya Primary School irfeGomba District. In 2015, she was interdicted. A criminal complaint of impersonation and forgery was lodged with the Uganda Police. In July 2022, she was clearer) of the said charges. She asked to be reinstated, but the Respondents declined her requests for reinstatement. She avers that the Respondents' actions are illegal and abuse her constitutional rights. By this application, she sought a declaration and an order of mandamus compelling the Respondents to reinstate her as head teacher with the 1st Respondent. - [2] The Respondents opposed the application. By his affidavit in reply, Mr. Joseph Kisubi, the 2nd Respondent, averred that the Industrial Court did not have jurisdiction to hear this matter, which was improperly before the Court. He <also deposed that following her initial clearance, the Applicant's academic documents were subjected to fresh verification, and in March 2023, the Uganda National Examinations Board *(from now UNEB)* reported that the Applicant's UCE Index Number was in the name of one Okurut Robert. A complaint of forgery was then

reported to the Uganda Police for appropriate action, and the Applicant remained on interdiction.

- **[3]** The parties were invited to address the Court by way of written submissions. The Applicant filed her written submissions on the 1st of May 2023. The Respondent did not file any submissions despite an order of extension of time to be granted to file them on the 12th of July 2017. - **[4]** It is this Court's view that the question of jurisdiction raised by the Respondents is crucial because it determines whether this Court should entertain this matter. Counsel did not deem it necessary to make any submissions on this important matter of law. It is not that submissions would necessarily have a bearing on the ruling of this Court, but they provide, for litigants, ^a significant opportunity to articulate their respective cases. That notwithstanding, it is this Court's bounden duty to resolve that question of jurisdiction as a matter of law and priority.

#### *Resolution ofthe question ofjurisdiction*

- **[5]** The objection, as raised by the Respondent in paragraph 4(i) and (ii) of Mr. Joseph Kisubi's affidavit in reply, is that-this Gdurtjdoes not have jurisdiction to hear this matter and that the matter.is: improperlysbefore this Court. - **[6]** The law, as it stands, is that ^a Court must determine whether it has jurisdiction because to purport to act with jurisdiction is an act in vain.[1](#page-1-0) 2 - **[7]** Jurisdiction isi-^the power .of the Court to hear and entertain an action or proceedings! It is;.the extent of the authority of the Court to administer justice not only concerning the Subject matter of the suit but also the local and pecuniary limits of jurisdiction. The jurisdiction of the Court can only be granted by law, and if the Court conducts proceedings without jurisdiction, they are ^a nullity.[3](#page-1-1) In Baku **Raphael Obudra and Another v Attorney General[4](#page-1-2) 5**it was held that jurisdiction is ^a creature of statute. Jurisdiction cannot be assumed even with the consent of s'" **parties?** - [8] Article 129(l)(d) of the Constitution of the Republic of Uganda confers the power to establish subordinate Courts upon the Legislature. In exercising that power, the Industrial Court was established under Section 7 of the Labour Disputes (Arbitration and Settlement) Act, 2006(/rom *now LADASA).* It is from this establishment provision that it derives its existential jurisdiction. Under Section 8

² Ibid

<span id="page-1-0"></span>¹ Per Okello J. in Odida Charles v Omaya Patrick & 5 Others H. C. M. C 03 of 2023

<span id="page-1-1"></span>³ Desai Vs Warsaw, 1967,E. A 351.

<span id="page-1-2"></span>⁴ S. C. C. A No. 1 of 2005

⁵ The term jurisdiction is defined in Owners of Motor Vessel Lillian "s" v Caltex Oil Kenya Limited [1989] KLR1 which was cited in the case of Ozuu Brothers vs Ayikoru Milka H. C. C. R 006 of 2016

LADASA, the functions of the Court, which would be the adjudicatory jurisdiction of the Court, are set out as below:

*"(1) The Industrial Court shall-*

- *(a) arbitrate on labour disputes referred to it under this Act; and* - *(b) adjudicate upon questions oflaw andfact arisingfrom references to the Industrial Court by any other law." (underlining and emphasis supplied)* - **(9]** The import of this provision is that the Industrial Court presides over labour disputes through arbitration and has both referral and appellate jurisdiction. In the case of **Irene Muwanguzi** v **Uganda Publishing & Printing Corporation®,** this Court held that the expression "any other law under section 8 LADASA means that the matters are not limited to references on labour and employment law only and may include matters related to defamation or other branchesjand breaches of law arising from the employment relationship. The cases of **Justice Asaph Ruhinda Ntengye & Justice Linda Lillian Tumisiime Mugisha v Attorney General[6](#page-2-0) ⁷** and **Engineer John Eric Mugyenzi v Uganda Electricity Generation Co. Ltd [8](#page-2-1) George Katendeigwa ^v Samsung[9](#page-2-2) 10, Avram Avivi ^v SBI " Jason Njeru Kiggundu ^v Imperial Bank Uganda Ltd,[11](#page-2-3)** reaffirm this position. - [10] In the Muwanguzi case, we concluded that matters may be referred to this Court by parties to a labour dispute before a labour officer or may come to this Court by way of appeal from ^a decision of a labour officer exercising arbitral power or by way of reference from the High Court or any other agency of the Executive arm of government. In the matter now before us, the procedural history of the dispute indicates that upon the direction of the Trial Judge,[12](#page-2-4) the Assistant Registrar of the High Court of Uganda, holden at Mpigi,[13](#page-2-5) returned the file in **Miscellaneous Cause No. 02 of 2022** to the Registrar[14](#page-2-6) High Court-Kampala who by letter dated 24th November 2022 forwarded the file to the Registrar of this Court where the jurisdiction of this file fell. Considering the provisions of Section 8(2) LADASA as cited hereinabove and following the dicta in the cases cited above, this Court would be clothed with the requisite jurisdiction to determine the dispute not as an original claim but as a reference to it, under any other law. In other words, the High Court of Uganda has referred the matter to the Industrial Court. By such reference, this Court would have jurisdiction to entertain the case. To this extent, therefore, the preliminary objection would be overruled.

¹⁰ LDR 208 of 2021

⁶ LDC01of2002

<span id="page-2-0"></span>⁷ See Asaph Ntengye J. and Linda LMugisha J. vs A. G Constitutional Petition No. 33 of 2016

<span id="page-2-1"></span>⁸ C. A. C. A No 167 of 2018

<span id="page-2-2"></span>⁹ LDC No 144 of 2014

<span id="page-2-3"></span>¹¹ LDR 172 of 2015

<span id="page-2-4"></span>¹² The Honourable Mr. Justice Anthony Oyuko presiding.

<span id="page-2-5"></span>¹³ H. W Justine Atukwasa, Assistant Registrar

<span id="page-2-6"></span>¹⁴ H. W Rosemary Bareebe, Registrar

- **[11]** The second significant element of jurisdiction rests in the remedial powers of the Industrial Court. Under Section 8(2a) of the Labour Disputes (Arbitration and Settlement)(Amendment)Act 2021 *(fromnow LADASAfas amended))* it is provided that in the performance of its functions, the Industrial Court **shall have the powers of the High Court** and in particular shall have powers to summon witnesses, administer oaths, order discovery, inspection and production of documents, make orders as to costs and other reliefs including reinstatement of an employee. Our reading of this provision is that the framers of the legislation intended to empower the Industrial Court to grant remedies akin to those given by the High Court. In other words, to improve the efficacy of the delivery of labourjusticejn the broader aspiration of improving the administration of justice, it was essehtialto enhance the powers of the Industrial Court. By so doing, the framers intended a^arity of power in the function and, therefore, the efficacy of awards and orders of the Industrial Court as that of the High Court. - [12] In this regard, the subject matter jurisdiction and nature of remedies that the Industrial Court can grant, become meaningful. Under Rule 3(1) of the Judicature (Judicial Review) Rules, 2009f/rom *now "JJRR");an* applicant forjudicial review may seek an order of mandamus, prohibition, or certiorari and under Rule 3(2) JJRR, an Applicant might seek an order of injunction. In the case of **Hilda Musinguzi v Stanbic Bank(U)Ltd15 16**it was held that judicialsreview was concerned not with the decisions *perse* but with the decisjpn-i^ilcfge process. This view was also reechoed in the case of **Commissioner of Land v Kunste Hotel Ltd,¹⁵** where it was observed that the object of judfBj^reVi^w proceedings is to check on the propriety of the decision-making process. It is concerned with ensuring that an individual is treated fairly by the authority to which he or she is being subjected. Under Rule 1A of the Judicature(Judicial Review) (Amendment) Rules, *2019(from now JJRAR),* the objectives of the rules include fair treatment, the exercise of public powers with fundamental standards\* of legality, fairness, and rationality, and ensuring adherence to^the constitutional right to ^a fair trial and expeditious hearing. As ^a corp:llag/,ihe concern of adjudication of labourjustice under the Employment Act, . 2006 (EA) and LADASA is the procedural and substantive fairness of decisions relating to the employment relationship. Of these and central to the procedural fairness^test is the right to be heard as enshrined under Article 28 of the Constitution and reenacted in **Section 66EA.** This would be a subject matter affinity in that the labour disputes resolutions questions the fairness of the decisionmaking process in like manner as judicial review addresses the fairness of the decision-making process. In other words, there is a solid subject matter affinity. - **[13]** The other affinity is the relief under employment law, which includes an order of reinstatement as provided under Section 8 (2a) LADASA (as amended). The remedy is affixed to the relief sought in an application for judicial review as provided in prerogative orders. In our view, the relief sought arises from violations of rights

^&quot;H. C. C. S No. 124 of 2008

¹⁶ [1995-1998] 1 EA (CAK) cited in M. C 392 of 2020 Dr. Ezra F. Munyambonera v A. G

enshrined under the Constitution, such as the non-derogable and inalienable right to a fair hearing or equal treatment before a tribunal. This affinity of reliefs is demonstrable of the Industrial Court's jurisdiction to hear and entertain ^a dispute on the fairness of the administrative decision-making process in an employment dispute and to grant necessary relief.

- [14] Overall, therefore, it is our conclusion that the referral jurisdiction of the Industrial Court confers on the Court the jurisdiction to hear and determine matters referred to the Court by any other law as provided for in Section 8 LADASA. In the circumstances of the case before us, we hold that the Industrial Court would have jurisdiction to entertain the application for judicial review as a reference from the High Court. In this, we are minded that the Industrial Court, unlike the High Court, does not have unlimited original jurisdiction and would not in any circumstances entertain an application for judicial review brought directly to this Court. For this proposition, we are guided by the dicta of Kakuru JJA *(aisthe then was)in* the Mugyenzi case to utilize the Court's jurisdiction to resolve disputes and by this Court's statutory imperative under Section 8(2)LADASA to dispose of the dispute without undue delay. For this reason, we are unpersuaded by the Respondent's contention that this Court lacks requisite jurisdiction. - [15] The second preliminary point raised by the Respondent relates to the propriety of the application. It is now established that ?the primary duty of ^a Court in applications for judicial review is to determine whether the application is amenable for judicial review. [17](#page-4-0) We propose to consider this issue shortly after visiting the Applicant's substantive submissions below.

## **Submissions of CQuriSehfortlit! Claimant**

[16] In their written^submissions, Counsel for the Applicant framed two issues for determination. *'WWfi*

f/JJf *Whether the Claimant is entitled to an order of mandamus compelling the '-'-w respondents to reinstate her to her position of head teacher with Gomba | District Local Government*

- *(ii) Whether the applicant is entitled to the remedies sought.* - [17] On issue 1, Counsel for the Claimant submitted that this case was brought properly under Rule 3 JJRR. Citing Rule 3(2) JJRR, Counsel submitted that the rule permitted the making of declarations. Counsel defined the order of mandamus and proposed that the Court's primary concern in an application for judicial review is the legality of the administrative action or decision in question. For this proposition, Counsel relied on the case of **Uganda Women's Network & Another v Financial intelligence Authority and A. G H. C. M. A No 23 of 2021 and "Judicial Review, Law**

<span id="page-4-0"></span>¹⁷ Per Ssekaana ^J in Dr. Ezra F. Munyambonera v A. G(op cit)

**Procedure and Practice"** by Peter Kaluma. Counsel referred this Court to Sections 30(2) and 96 of the Local Government Act for the functions of local governments concerning schools. It was submitted that the Respondents have ^a statutory duty to manage schools or education in the district. That duty would extend to hiring, appointing, or otherwise of the heads of such institutions. It was the Applicant's case that since the same bodies ordered the Applicant to step down from her position pending the conclusion of the criminal case, they had a similar duty of reinstating her after her clearance of the criminal charges. It was the Applicant's case that upon presenting proof of her clearance, the 2nd Respondent wrote to the Uganda National Examinations Board seeking verification of the Applicant's academic documents. Following UNEBS's response, the 2nd Respondent reported a complaint of forgery with the Uganda Police. This, in Counsel's view, amounted to witch-hunting. It was malicious. It was Counsel's view that the Applicant had made ^a case for grant of an order of mandamus reinstating the Applicant to her position as headteacher. 1 1

#### **Analysis and Decision of the Court «**

- **[18]** We had proposed to resolve the 2nd preliminary objection after considering the Claimant's submissions because the objection to the propriety of the application would be inextricably linked to the primary considerations for a Court to entertain an application for judicial review. Rule 7A(1) JJRAR requires the Court to satisfy itself that; - (i) the application ii amenable to judicial review, - (ii) that The aggrieved person has exhausted the existing remedies , available'vyithin the public body or under the law; and - (iii) . That the matter involves an administrative public body or official.

The.;High Court has set these considerations as prerequisites in various decisions.[18](#page-5-0) We will, therefore, consider the questions individually.

#### *Whethferjhe application is amenable tojudicial review?*

**[19]** The generally accepted view is that the remedy of judicial review is only available where the issue is of breach of public law and not ^a breach of ^a private law obligation.[19](#page-5-1). The jurisprudence is that the body under challenge must be a public body whose activities can be controlled by the judiciary. The subject matter of the challenge must involve claims based on public law principles and not the enforcement of private rights.[20](#page-5-2) In the case of **Arua Kabala Park Operators and Market Vendors' Cooperative Society Ltd v Arua Municipal Council,[21](#page-5-3)** a public

<span id="page-5-0"></span>¹⁸ Per Mubiru J. in H. C. M. C 0003/2016 Arua Kabala Park Operators and Market Vendors' Cooperative Society Ltd v Arua Municipal Council.

<span id="page-5-1"></span>¹⁹ Ibid.

<span id="page-5-2"></span>²⁰ Public Law in East Africa by Ssekaana Musa, 2009 Law Africa Publishing at page 36.

<span id="page-5-3"></span>²¹ See footnote 18 above.

body decided to terminate a contract with a private citizen. The Court held the view that termination did not involve exercise of any power under any legislation or abuse of statutory power of any administrative law principles. The Court held that there was nothing of public interest in the case.

#### *Whether Respondent is a Public Body*

- **[20]** In the realm of employment disputes, in the case of **Dr. E. F Munyambonera v A. G** case (supra), Ssekaana J. observes that about employment and judicial review, the Court must consider the process of appointment and revocation of the appointment. Whether those above are governed by a Statute of the Constitution, and if not, it is ^a matter of private law outside the realms of judicial review.[22](#page-6-0) His Lordship also noted that employment by a public authority does not *per se* inject any element of public law except if there was statutorylunderpinning of employment. We will return to this matter later in thjs^y.l(ng5: W - [21] Under Section 55(1) of the Local Governments Act Cap.243('/rom *now LGA),* the functions of a district service commission (DSC) include the power to appoint persons to hold or act in any office in the service of a district or urban council, including the ability to confirm appointments, to exercise disciplinary control over persons having or acting in such offices and to remove those persons from office, is vested in the DSC. Under Section 61(1) LGA, the terms and conditions of service of local government staff shall conform to those prescribed by the Public Service Commission **(PSC)** for the public service generally. - **[22]** It is common cause that the Applicant was appointed Education Assistant Grade 11 in Mpigi District Council on the 10th of September 1999. Her appointment was subject to theXoristitutionJpf the Republic of Uganda, the Public Service Act and Regulations made thereunder, the Public Service Standing Orders and Administrative Instructions, and the Pensions Act Cap 281. She served her probation in accordance with Paragraph 5 of the Standing Orders. On the 13 of November 2008;?she was appointed on promotion to the position of headteacher. Similarly, this appointment was subject to the Constitution of the Republic of Ugandaj the Local Government Act Cap 243, the Public Service Act and Regulations made, thereunder, the Public Service Standing Orders and Administrative Instructions, and the Pensions Act Cap 281. By posting instruction Ref CR. D 32322 dated the 5th of February 2009, she was sent to Kandegeya Primary School as Headteacher Grade III. Objectively considering the appointments, it is our conclusion that the Applicant's appointment is under statute and any disciplinary process is also regulated by statute. In these circumstances, we agree with Counsel for the Applicant in the submission that the Respondent has ^a statutory duty to manage education in Gomba District, which extends to regulating the appointment, discipline, and termination of district employees. We are satisfied that the matter relates to a public body and an appointment under statute.

<span id="page-6-0"></span>²² His Lordship also cited R v British Broadcasting Corporation Ex P lavelle[1983] ALL ER 241

## *Whether this is a matter ofpublic law*

- [23] The claim must be based on public law principles to be amenable to judicial review. In the Arua Kabalafopc/tj case, Mubiru ^J observes that public law is the system that enforces the proper performance of public bodies. Public law is not concerned with the enforcement of personal rights. Public bodies perform private law acts for which they can sue and be sued in private law proceedings including matters of employment of staff. - **[24]** It was common cause that the Applicant was interdicted from her position as headteacher at Kandegeya Primary School in 2015. The letter of interdiction bears two elements: abandonment and criminal charges of impersonation and forgery. In its Minute No.38 Serial No. 5/2017, the DSC decided that the Applicant be regarded as having abandoned duty and resigned. In July 2022, when the Applicant was cleared of the said criminal charges and presented her clearance before the Respondent seeking reinstatement, the Respondent declined to reinstate her. Mr. Kisubi avers that Minute No. 38 was rescinded, and the Applicant was given ^a hearing under Minute 58. Her claim was considered on the 15th and 16th of December, 2022. At this meeting, it was observed that the Applicant had varying academic papers, so a verification was required. The Respondents wrote to UNEB, and on 10th March 2023, the Board.responded, citing variance in the name in the Applicant's Index No. On this basis, Mr. Kisubi avers that he reported ^a matter of alleged forgery to the Uganda Police and the District Service Commission for appropriate action. This second complaint had not been concluded at the filing of the present application. . - **[25]** From the above^^WAp'pl.icaht's chief complaint relates to her request for reinstatement and the Respondent's decision not to reinstate her to the position of headteacher^She argues that the second complaint of forgery is malicious and deprives her of thedright to employment. It is her case that the Respondent's actions are illegal and an abuse of her constitutional rights. On its part, the % Resporidenfs-suggest that the Applicant had absconded from employment, and ^a ^.uBrriissiofi^was made to the DSC recommending her termination. The matter, therefore, relates to the interdiction procedures of a local government employee undei^the Public Service Commission Regulations S.l 1 of 2009 (hereafter PSC Regulations). We are satisfied that this matter concerns matters of public law.

*Whether the Applicant is entitled to an order ofmandamus?*

**[26]** The procedure for interdiction of ^a local government employee is set under Regulation 38 of the Public Service Commission Regulations S.l 1 of 2009(/rom *now PSC Regulations).* It is helpful to reproduce the provision verbatim; *"38. Interdiction.* *(1) Where— (a) a responsible officer considers that public interest requires that a public officer ceases to exercise the powers and perform thefunctions ofhis or her office; or (b) disciplinary proceedings are being taken or are about to be taken, or if criminal proceedings are being instituted against him or her, he or she shall interdict the officerfrom exercising those powers and performing those functions.*

*(4) An officer who is under interdiction may not frequent the office or leave Uganda without the permission ofthe responsible officer.*

*(6) The responsible officer shall make a detailed report to the Secretary of the circumstances that led to the interdiction including ^a statementof the allegations and charges, if any, preferred against the officer, ^a copy of letter of interdiction and the disciplinary or criminal proceedings which are being taken or about to be taken against the officer for the Commission to note the interdiction.*

*(7) On conclusion of investigations by the Ministry or department or Police, the responsible officer, if he or she considers that the officer is innocent or the case against him or her is not serious enough to warrant criminal prosecution or dismissal shall— (a) make a detailed report on the investigations carried out, a copy of the Court charge, proceedings and Judgment of the case against the officer; and (b) make appropriate justification and recommendations on the lifting of the interdiction, ' • \*

*(8) The interdiction of theofficer shall remain in force until the Public Service Commission has noted the lifting of interdiction.*

*(9) Where there is failure to conclude investigations within the time stipulated in sub-regulation (5), .the officer shall be free to appeal to the Commission to have his or her interdiction lifted.*

**[27]** In our view, this elaborate interdiction procedure is anchored under the constitutional precepts of fairness. It ensures that interdiction is conducted in ^a mariner that does not violate the principles of natural justice. This matter is not purely a labour dispute. The 2nd Respondent half-suggests that a recommendation was made to the DSC to terminate the Applicant. No instrument of termination was presented. And in minute 58, the submission to terminate the Applicant was rescinded. The Applicant was interdicted. The matter, therefore, relates to the Applicant's prayer for reinstatement interspersed with her claim for salary arrears and a declaration of an unlawful interdiction. To this Court's mind, this is a matter of public law, as shall be laid out in the proceeding paragraphs of this ruling. This case is quite distinct from the case of **Rev Fr. Pacuto Solomon Ngo's v Muni University and Anor[23](#page-8-0)** where Serunkuma J. considered a termination from a public

<span id="page-8-0"></span>²³ H. C. M. A No. 0005 of 2021

body, found no procedural impropriety or irrationality, and dismissed the application for judicial review. Similarly, in **Mrs Anny Katabaazi-Bwengye v Uganda Christian University²⁴** Ssekaana J. was of the holding that ^a labour dispute arising for a dismissal from office was not a public law issue and principles of judicial review should not be transplanted in the realm of private law rights enforcement. In the case of **Regina v Civil Service Appeal Board Ex Parte Bruce²⁵** where disputes relating to dismissal of an employee would most appropriately be placed before an Industrial Tribunal. These three cases cited above deal with employment and labour claims arising out of dismissal from office. The present case is dissimilar because the Applicant is presently under interdiction. The Applicant has not been terminated and had herself only revived the matter after close to seven years. Following her request for reinstatement, the 1st Respondent rescinded minute 38 and granted a hearing under minute 58. The dispute is, therefore, not at the tail-end of the employment relationship. It is an amidship or in existing employment relationship with the 1st Respondent. And this is borne out in the Respondent's account below.

- **[28]** The Respondent's account of what transpired is that on the 27th of October 2015, the District Education Officer submitted the Applicant for disciplinary action for abscondment of duty. The said submission indicated that the Applicant had been summoned to appear before the district disciplinary committee but she declined. On the 30th day of October 2015, the Applicant was interdicted. Her letter of interdiction, attached as annexure "D"to Mr. Kisubi's affidavit in reply, details the infraction as continuods>abandonment from duty. She was also asked to report to the Criminal Investigation Directorate headquarters in defence of allegations of forgery and uttering false documents. Her salary was stopped forthwith. In annexure "E" to Mr. Kisubi's affidavit in reply, a submission to the Secretary DSC indicate§|tha^he Applicanjlwas deemed to have abandoned work and resigned. According-fp ann^xu^/'F" DSC Minute No. 38 Serial No. 5 of 2017, it was determined that the Applicant be regarded as having abandoned duty and resigned %ith effect from the 26th of October 2016. The procedure under w Regulations 38(6)(b) of the PSC Regulations, is that the responsible officer is required toimake a detailed report to the Secretary detailing the circumstances of tfi^infiei^liction and the allegations or charges preferred. It is our view that as of the 26\*^h day of October 2016, the Respondents were procedurally compliant and had not flouted the PSC Regulations. To this extent, it is our view that the Applicant's initial interdiction was compliant with the law. - **[29]** The Applicant's account presents an extended version of events. She avers that she was summoned to attend to the Uganda Police by letter ref CID/A/13/155 on alleged forgery, uttering false documents, personation, and causing financial loss. She attached the invitation letter dated 7th September 2015 as annexure "E" to her supporting affidavit. A crime report dated 6th July 2022 indicated that the Director

24H. C. M. CNo. 268 of 2017

²⁵ [1988] ICR 649

of Public Prosecutions had advised that the file be closed and put away. The 2nd Respondent acknowledged receipt of this letter. The crime report suggested that *"investigations were successfully expedited."* Absent any explanation, we would be inclined to the view that there was a delay in concluding the investigation into the Applicant's alleged infractions. Under Regulations 38(5) of the PSC Regulations,

*"Where a public officer has been interdicted by a responsible officer, investigations into the conduct of the public officer shall be speeded up and brought to conclusion within a period of— (a) three months from the date of interdiction for offences under investigations by the Ministry or department, or Auditor General, and not requiring or involving the police or a Court oflaw; (b) six months from the date of interdiction for offences requiring or involving the police or a Court oflaw."*

- [30] In the case before us, the period between 7th September 2015 when the Applicant was first invited to answer allegations, and 6(h July 2022 does not support the view of "expedited investigations." The lull lasted for almost seven years. We would find that this delay was undoubtedly unreasonable. - [31] However, the Applicant does not explain what steps she took during this lull. DSC Minute No. 38 Serial No. 5 of 2017 deemed the Applicant as having abandoned her job, and she does not appear to have taken any step regarding that minute. Under Regulation 38(9) PSC Regulations, a public officer has the right to appeal to the relevant commission to have the interdiction lifted where investigations have not been concluded within the statutory timeframes. The Applicant did not exercise this right. Conversely, Mr. Kisubi averred that after the Applicant sought clearance, a submission was made to the DSC to give the Applicant a fair hearing. On the 15th and 16th of December 2022, under Minute 58, the DSC is said to have rescinded Minute 38 and given the Applicant ^a fair hearing. In this hearing, it was suggested that the Applicant's personal file had different copies of the "O" level certificate. These two certificates indicated that she had used the results of 1988 instead of the {jppr^gradesijn 1989. The DSC decided that the CAO should verify the % authenticity of these papers with the Uganda National Examination Board. It was reported that the DSC observed that the Applicant's absence for a long time had been because she was attending to land matters/conflicts in her home area. DSC, therefore, deferred the case until the verification of the academic documents had been done. - **[32]** Our summation of what transpired is that the applicant is said to have abandoned employment for which she was interdicted. The second is that ^a criminal complaint was made against her. The matter appears to have been on ^a lull for about seven years. The Applicant did not explain this period to the Court. On the other hand, the Respondent made a submission to the DSC recommending that the applicant be deemed to have abandoned employment and resigned accordingly. When the Applicant was cleared, she sought reinstatement. The Respondents rescinded

Minute No. 38, which was the decision to terminate the Applicant's services. She was then given a hearing. The CAO was asked to verify her documents, and ^a decision was deferred until after verification. As it stands, there has been no decision following the deferral. This presents several difficulties. The Applicant, who had been interdicted on the 30th of October 2015, was deemed to have abandoned her employment on the 11th of April 2016. In any event, under Regulation 38(5)(b)PSC Regulations, the investigations were expected to be concluded by 31st April 2016.

**[33]** In our view, having rescinded the minute of termination, this matter was effectively in the hands of the DSC, which had made a decision to defer the Applicant's disciplinary hearing until after verification. It follows, therefore, that disciplinary proceedings are ongoing. While there might have been specific initial difficulties with Minute No. 38, the parties appear to have sat back until 2022 when by Minute No. 58, Minute No. 38 was rescinded, and the matter was deferred pending verification of the Applicant's documents. An inquiry was made to the Uganda National Examinations Board (UNEB) on the 7th of March, 2023. This letter was attached as annexure ^I to the 2nd Respondent'Itaffidavit in reply. The 2nd Respondent received a letter frorrvUNEB on -:10th March 2023 indicating certain discrepancies in the Applicant's documents. On this basis, on the 23rd day of March 2023, the 2nd Respondent complained to the Uganda Police for appropriate action. Under Regulation 38(6) PSG|Regplati6ns, investigations are expected to be completed within six months. The Applicant first filed this application before the High Court at Mpigi on the 2\$F of Qctdb.g.^2022. The application was transferred to this Court on 24thWoJzember 202-2. The 2nd Respondent complained to the Uganda Police in March 2023, three months after the DSC had entered minute 58. At the time of rendering thi^ulingnt is more than six months since the complaint to the Uganda Pqlice^wa^maBe. This means that the Uganda Police and Court processes, ought to have^b^n completed. In the result, we would find that the Respondent's second interdiction of the Applicant is unlawful and contravenes Regulation 38(5) P^CSRegulations, and we would order that her interdiction be lifted.

# *%lssue^(fl) What remedies is the applicant entitled to?*

#### *Mandamus and reinstatement.*

**[34]** The applicant sought an order of reinstatement to her position as Head Teacher with the 1st Respondent. While we have found that her interdiction is unlawful, the order of reinstatement has some practical difficulties. First, the Applicant last held that position well over seven years ago. Secondly and even more importantly, by minute 58, minute 38 was rescinded. The order of mandamus is derived from its latin origin "mandare", which means to compel or force. Mugenyi J.( *as she then*

*was)* put it this way in the case of Janet Kobusingye v Uganda Land Commission[26](#page-12-0). *"Simply stated, an order of mandamus is 'a prerogative order available on application for judicial review from the High Court, requiring an inferior Court, tribunal or other public body to perform a specified public duty relating to its responsibilities.'*

In terms, the Applicant seeks an order compelling the Respondent to reinstate her to the position of Headteacher at Kandegeya Primary School.

[35] Earlier in this ruling, it was observed that the remedies under employment law bear an affinity to those under judicial review. The remedy of reinstatement is of very close affinity to mandamus in that it would compel the Respondents to restore the Applicant to the position of Headteacher at Kandegeya Primary School. Under Section 71(6) of the Employment Act 2006 (EA),: there are conditions related to reinstatement except where the employee: does not wish to be reinstated or re-employed, the circumstances surrounding the dismissal are such that a continued employment relationship would ^be^^olerable, it is not reasonably practical for the employer to re-instate or re-employ the employee or the dismissal is unfair only because the employer did not follow a proper procedure.

%

[36] In the case before us, no evidence was led to demonstrate the present circumstances at Kandegeya Primary School. The Respondents did not also demonstrate any hardship in reinstating the Applicant. The facts demonstrate that by rescinding minute 38, which was a submission for termination and proceeding under minute 58, the 1st Respondent considers the Applicant its employee under interdiction. What has transpired is that the 1st Respondent has reinstated the Applicant*defacto.* TheApplicant was effectively under interdiction which we have now declared unlawfuljas investigations had not been completed by the end of the statutory six-month period. There is more than one cut-off date. Minute 58 of 30th December 2022 required the 2nd Respondent to verify the Applicant's papers. This would mean ^a cut-off date of 30th March 2023 for ^a three-month interdiction not involving the Uganda Police or the Courts of law. When the matter was reported to the Uganda Police on the 23rd of March 2023, the cut-off date for interdiction would be the 23rd of September 2023. In the case of Dr. Peter Okello v Kyambogo University and Another,²⁷ the High Court observes that the grant ofjudicial review remedies is discretionary, and it does not automatically follow that if there are grounds of review to question any decision or action or omission, then the Court should issue any remedies available. By minute 58 which lifted the interdiction under minute 38, there was a de-facto reinstatement albeit with a view to verifying the Applicant's documents. Therefore and following the finding that the interdiction was unlawful, the Respondents would be compelled to reinstate the Applicant's employment status.

<span id="page-12-0"></span>26 H. C. M. A. 28/2013 » H. C. M. A No. 23 of 2017

#### **Salary Arrears**

The Applicant also sought salary arrears from December 2015 to date. $[37]$ Under Regulation 38(2) PSC Regulations, a public officer under interdiction is entitled to half salary. The law provides;

> " (2) A public officer who is interdicted shall receive a salary, not being less than half of his or her salary, as the responsible officer shall deem fit.

(3) Where disciplinary or criminal proceedings have been taken or instituted against an officer under interdiction and the officer is not dismissed or, as the case may be convicted as a result of the proceedings, the whole of any salary withheld under sub-regulation (2) shall be restored to him or her upon the termination of the proceedings.

- The Applicant was first interdicted on 30^th October 2015. A submission for her $[38]$ termination was made to the DSC on 11^th April 2016. Under the provision of law cited above, she would be entitled to at least half her salary at interdiction for six months. In paragraph 11 of her affidavit in support, the Applicant avers that she last received salary in December 2015. The Respondents did not controvert this evidence. The Applicant was earning UGX 4,151,041 p.a. as per Annexure "B" to her affidavit in support. In the circumstances of this case, we order that the Applicant be paid a salary for the period December 2015 to April 2016 amounting to UGX 1,383,800/ $=$ . - Under minute DSC 58 of the 15^th and 16^th of December 2022, the 2^nd Respondent [39] avers that the 1^st Respondent rescinded minute 38, terminating the Applicant. As such, the Applicant was restored to her full rights. As a result, the Applicant would be entitled to her salary for 21 months from the date of this ruling. We direct the Respondent to pay UGX 7,264,950/=. We further direct the 1^st Respondent to continue paying the Applicant her salary until the investigations against her concluded.

### General damages

$[40]$ The Applicant sought general damages under Rule 8 of the JJRR, which provides for an award of damages. Counsel relied on the case of Security Group Uganda Ltd v Xerodoc Limited H. C. C. S No. 572 of 2006 for the proposition that general damages are compensatory in nature. That the Court should be guided by the economic inconvenience suffered. Counsel for the Applicant did not propose any quantum. The Respondents did not file any submissions. The matter of damages was, therefore, left to the Court. In the case of Uganda Women's Network and Another v Financial Intelligence Authority and Anor ²⁸ Nambayo J, relying on Luzinda v Ssekamatte & 3 Ors HCCS No. 366 of 2017 declined to award damages where the Applicant had pleaded and claimed damages but not proven the damages incurred. In the Luzinda case, it was noted that it is the duty of the Claimant to plead and prove that there were damages, losses, or injuries suffered due to the defendant's actions. In the matter before us, it is beyond question that the Respondent's have acted unlawfully. However, the Applicant appears to have sat back between December 2015 and July 2022 and has not demonstrated what damages she thinks she might be entitled to. In the circumstances of this case and applying the dicta of Nambayo J. in the Uganda Women's Network case, we decline to award any general damages.

# **Final orders of the Court**

- [41] In the final analysis, these are the orders of the Court: % *%* - (i) The interdiction of the Applicant is declared unlawful, and the Respondents are directed to comply with the Public Service Regulations:to reinstate the Applicant fully. - (ii) The Respondents are directed to pay the Applicant her salary for the period December 2015 to April 2016 in the sum of UGX 1,383,800/= and a half salary for the period December 2022 to the date of this award being UGX UGX 7,264,950/= - (iii) There shall be no order as to costs.

## **Delivered and Dated at Kampala this ,2023.**

Anthony Wabwire Musana;

**Judge, Industrial Court**

#### **THE PANELISTS AGREE: :**

- 1. Hon. Jimmy Musimbi, - 2. Hon. Robina Kagoye & - 3. Hon. Can Amos Lapenga.

ⁱ;«' ¹ Ruling delivered in open Court on the ²⁷th of September ²⁰²³ at 11.52 a.am. in the presence of:

**For the Applicant:** Applicant in Court. **For the Respondent:** None. Court Clerkf **Mr. Samuel Mukiza.**

AnthcnyJ/yvbwire Musana, **Judge, Industrial Court**