[2024] UGHCCD 202

## 5 **THE REPUBLIC OF UGANDA**

### **IN THE HIGH COURT OF UGANDA AT KAMPALA**

### **(CIVIL DIVISION)**

#### **CIVIL APPEAL NO. 0087 OF 2024**

#### **ENGINEER FREDRICK MUBIRU::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT**

### 10 **VERSUS**

### **ENGINEERS REGISTRATION BOARD:::::::::::::::::::::::::::::::::::::RESPONDENT**

### **BEFORE: HON. JUSTICE ESTA NAMBAYO**

### **JUDGMENT**

The Appellant, Engineer Fredrick Mubiru, being aggrieved by the decision of the 15 Disciplinary Committee(DC) of the Engineers' Registration Board suspending him from practice for a period of one year, effect 3 rd July 2024, for professional misconduct, brings this appeal under S.27 of the Engineers' Registration Act, Cap 271, against the entire decision of the Board and seeks for orders that: -

- **1. The Appeal be allowed and the impugned suspension of the Appellant from** 20 **practice of his profession for a period of One year be quashed, set aside and lifted with immediate effect** - **2. A permanent and mandatory injunction doth issue staying the suspension issued by the Respondent and against the Respondent, its servants, employees, agents and all persons privy to enforcement of the impugned** 25 **suspension** - **3. An order of general damages to the tune of UGX 200,000,000/- accrue to the Appellant for the Attendant loss of business opportunities and**

**reputational damage occasioned by the illegal, irrational and arbitrary suspension of the Appellant**

- 30 **4. An order of aggravated damages to the tune of UGX 100,000,000/= accrue for the arbitrary, callous and manifest procedural impropriety of the Respondent in suspending the Appellant** - **5. An order of interest on (3) and (4) above doth issue from the time of lodgment of the appeal until payment in full**

# 35 6. **Costs of this Appeal be provided by the Respondent**

The grounds of this appeal are that: -

- **1. The Engineers Registration Board erred in law and fact and a miscarriage of justice was occasioned when it injudiciously, erroneously and per incuriam failed in its duty to accord the Appellant his constitutional right** 40 **to a fair and reasonable opportunity to be heard on the prejudicial and unfounded allegations against him** - **2. The Engineers Registration Board erred in law and fact and a miscarriage of justice was occasioned when it injudiciously, erroneously and per incuriam failed to exercise its duty to inquire into the impugned and** 45 **unfounded allegations against the Appellant before establishing the guilt of the Appellant and suspending him from the practice of his profession for the tenure of one year.** - **3. The Engineers Registration Board erred in law and fact and a miscarriage of justice was occasioned when it injudiciously, erroneously and per** 50 **incuriam failed to exercise its duty to exercise a full, faithful and impartial inquiry into the impugned allegations against the Appellant** - **4. The Engineers Registration Board erred in law and a miscarriage of justice was occasioned when it injudiciously, erroneously and per incuriam when it**

**issued a judgement tainted with illegality, irrationality and procedural** 55 **impropriety.**

**5. The Disciplinary Committee of the Board erred in law and fact and a miscarriage of justice was occasioned when it erroneously failed to evaluate all the evidence on record.**

# **Brief background to the Appeal**

60 The brief background to this appeal is that the Appellant, being a registered Engineer, was accused of professional misconduct by the National Building Review Board, (NBRB), which then referred the matter to the Engineers' Registration Board, (ERB), for management.

On the 29th/8/2022, the ERB wrote to the Appellant requiring him to file his response

65 to the allegations against him in 7 days from the date of their communication to him and also notified him that he would appear before the disciplinary committee of the Board at a later date, to be communicated to him, to have a physical interaction with the Disciplinary Committee (DC). It is indicated in the letter of communication to the Appellant that a copy of the NBRB report was attached to guide the Appellant in his 70 response to the allegations against him.

The Appellant never filed his report as required and when he was summoned to appear before the DC on the 1st December, 2022, for a physical interaction, his lawyers wrote to the DC informing it that the Appellant would not appear because he had prior commitments with the Office of the Prime Minister. The Appellant never

75 appeared before the DC.

In June, 2024, the NBRB, wrote another letter to the ERB accusing the Appellant of further professional misconduct and requesting for their intervention.

The Board sat on the 3 rd July, 2024, and basing on all the three allegations decided to suspend the Appellant from practice for a period of one year, hence this appeal.

### **Legal Representation**

Learned Counsel Patrick Nasinyama appeared for the Appellant while the learned State Attorney, Apita Susan, was for the Respondent. Only Counsel for the Appellant 85 filed his submissions in the appeal.

I have looked at the record of appeal provided by Counsel for the Appellant. In my view, the 1st and 3rd grounds of appeal can be solved by determining whether or not the Appellant's right to be heard was violated, while the 2 nd and 4th grounds address the issue of evaluation of evidence by the DC.

### 90 **Submissions**

It is Counsel's submissions that the Appellant was not given an opportunity to be heard. Counsel relied on **Article 44 (c) and Art. 28 of the 1995 Constitution of Uganda,** the case of **R-v-Thames Magistrates Court Exp Polemis (1974) WLR 1371** and the case of **Baryaruha –v-Attorney General MC No. 149 of 2016** and submitted

- 95 that the Appellant was not accorded a fair, speedy and public hearing before an independent and impartial tribunal as provided under the constitution of Uganda and S. 24 & 25 of the ERA Cap 271. That the NBRB denied the Appellant full closure of the allegations against him, and as such, the Appellant was not able to mount a credible defence before the DC. Counsel referred court to letters that he wrote 100 requesting for more information from the NBRB and the ERB. - He explained that on the 1st December, 2022, when the Appellant was required to appear before the DC for a physical interaction, the Appellant had another, prior arranged engagement with the Office of the Prime Minister and that he would not be in position to attend the interaction. This letter of notification is on court record. - 105 In regard to the last, the third, allegation against the Appellant, that he was responsible for the collapse of a retaining wall at GOODLUCK OIL fuel station at Ndejje Kanyanya cell, in Makindye Ssabagabo Municipality, Counsel submitted that the Appellant was not given an opportunity to be heard.

It is in view of the above that Counsel submitted that the Appellant's constitutional 110 right to be heard was contravened.

The other ground that Counsel raised was that there was bias against the Appellant. On this ground, Counsel argued that suspension of the Appellant without giving him the opportunity to be heard in itself shows bias against the Appellant.

He also submitted that the Respondent has representatives on the investigation team of the NBRB. He relied on the NBRB minutes of the 389 115 th meeting and argued that since members of the Respondent sat in a meeting with the NBRB, there was bias in the suspension of the Appellant.

In regard to the minutes of the DC, Counsel submitted that bias against the Appellant is manifested in the minutes of the meeting that sat on the 26th October, 2022, when

- 120 it was noted that the Appellant should appear before the DC in person and that he should not be represented by Counsel. Counsel submitted that the position of the law is clear, that where a decision is arrived at without affording the victim an opportunity to be heard before a fair and impartial adjudicator, such decision cannot stand in law. He prayed that this court allows this appeal and quashes the impugned decision of - 125 the Respondent and that the Appellant be accorded damages for loss of business opportunities and damage caused to his reputation, interest and costs of this appeal. **Analysis**

# **Art. 28 of the 1995 Constitution of Uganda provides for the right to a fair hearing and states as follows;**

130 (1) In the 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.

**Halsbury Laws of England, 5th Edition 2010 Vol. 61 at para 639** on the right to be heard states that: -

135 "The rule that no person is to be condemned unless that person has been given prior notice of the allegations against him and a fair opportunity to be heard (the audi alteram partem rule) is a fundamental principle of justice. This rule has been refined and adapted 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

140 administrative bodies not required by statute or contract to conduct themselves in a manner analogous to a court."

**In the Management Committee of Makondo Primary School and Another –v-Uganda National Examination Board, HCMA No.18 of 2010, Court stated as follows;**

- 145 "Natural justice is not a creature of humankind. It was ordained by the divine hand of the Lord God hence the rules enjoy superiority over all laws made by humankind and that any law that contravenes or offends against any of the rules of natural justice, is null and void and of no effect. The rule as captured in the Latin Phrase 'audi alteram partem' literally translates into 'hear the parties in turn', and has been appropriately - 150 paraphrased as 'do not condemn anyone unheard'. This means a person against whom there is a complaint must be given a just and fair hearing."

When considering the principles of natural justice, it must be observed that a person against whom an order to his prejudice may be passed should be informed of the charges against him/her. This is done by issuance of notice showing the nature of the 155 accusation against the concerned person. Notice should be given whether or not it is provided for in the applicable law. (**Fazalbhai –v- Custodian AIR 1961 (SC), Charles Harry Twagira –v- Uganda, SCCA No. 27 of 2003, Gathiga –v-Kenyatta University Nairobi, HCMA No.1029 of 2007{2008] KLR 587.**

The accused person should also be given an opportunity to submit his/her explanation, 160 he/she has a right to know the evidence which is to be used against him/her and he/she should have opportunity to cross-examine witnesses who give evidence against him/her and to lead his/her own evidence in defence; and legal representation during the proceedings, where the accused opts to, should not be denied.

In this case, on the 29th August, 2022, the Respondent wrote to the Appellant notifying 165 him that there were professional practice concerns encountered by the NBRB during their investigations against him and that he was required to respond to the allegations.

The NBRB report was availed to the Appellant to give him in his response. The Appellant was directed to file his response in a period of 7 days from the date of the ERB communication to him. The Appellant was also notified that he would appear

170 physically, at a later date, for an interaction with the Respondent's DC. The Appellant never filed his response as required of him. No reason is given for his failure to file a response as required.

On the 16th of September, 2022, after the 7 days had run out, the Appellant's lawyers wrote to the Respondent informing it that they (the Appellant's lawyers) had written

175 to the NBRB requesting for minutes of their meeting with the Appellant. This was not true. The lawyer wrote to NBRB on the 28th September, 2022, after communicating to ERB, requesting for the minutes (see page 138 of the record of appeal).

On page 148 of the record of appeal, there is a reply to the Appellant's lawyer, by NBRB, notifying him that all documents regarding the Appellant's case had already

180 been forwarded to ERB and that any information required by the Appellant ought to be requested from the ERB which was handling the case. The Appellant and/or his lawyer never got back to ERB for any information.

On the 24th November, 2022, ERB wrote inviting the Appellant to appear before its DC on the 1st December, 2022 at 12:30 PM to answer allegations in respect of;

- 185 a) the collapse of a floor in an industrial warehouse for sun Labelling and Printing Company Ltd, Kavule Village, Mpigi District which occurred on September, 2021 and; - b) a collapsed building at Major Victor Bwana Road Mbarara that occurred on the 5 th October, 2021. - 190 In the last paragraph of the invitation, the Board states specifically that; "The enquiry shall seek to offer you a fair hearing" **(underlining is mine for emphasis).** The Appellant's lawyer wrote back notifying the Board that the Appellant was 'part of the team of imminent consultants hired by the Office of the Prime Minister to assess Local Government performance in regarded to government funded projects' and as 195 such, he would not appear before the Board on the scheduled date.

No evidence was presented to back up this claim. The Appellant never appeared for the disciplinary hearing. On the 11th of June, 2024, before the DC had pronounced itself on the Appellant's case, they again received another letter from the NBRB against the Appellant notifying them that another wall had collapsed at Good Luck Oil fuel 200 station at Ndejje Kanyanya cell Makindye Ssaabagabo in Wakiso District, killing five people and injuring three and that this was as a result of the Appellant's unprofessional work ethics. The Board never summoned the Appellant. It convened a meeting and suspended the Appellant for one year.

- I find that the Board did not give the Appellant a chance to be heard in the last 205 allegation against him. It is not clear why the DC decided not to take action against the Appellant in the first allegations when he did not appear after they summoned him. The DC woke up when another incident, with more serious consequences came up against the Appellant and took a decision with giving him chance to be heard. The suspension was omnibus, in respect of all the three incidents. The decision should - 210 have been in respect of cases where the Appellant was given a chance to be heard and he declined to present his response and to appear for a physical interaction. If the Board had taken action only in the 1st two cases where the Appellant declined to appear, the Board's decision would have been binding on the Appellant. Suspending the Appellant on the 3rd allegation against him without giving him an opportunity to - 215 respond to the allegations amounted to condemning him without giving him an opportunity to be heard, and therefore the Appellant's constitutional right to be heard was contravened by the DC.

In **Mbaki & Others -v- Macharia & another (2005) 2 EA 206, at page 210**, Court stated as follows: -

220 "the right to be heard is a valued right. It would offend all notions of justice if the rights of a party were to be prejudiced or affected without the party being afforded an opportunity to be heard."

## 225 **Remedies**

The Appellant prayed for general remedies amounting to ugx 200,000,000/- for loss of business opportunities and damage to his reputation, he prayed for 100,000,000/ as aggravated damages and interest.

### **General Damages**

- 230 The law is that general damages are awarded at the discretion of the court. The purpose is to restore the aggrieved person to the position he/she would have been if the breach or wrong had not occurred. See: **Kibimba Rice Ltd –v- Umar Salim, SC Civil Appeal No. 17 of 1992 and Robert Cuossens –v- Attorney General (SCCA No. 8 of 1999) 2000 UGSC 2 (2 March 2000).** - 235 In this case, the Appellant on his part failed to comply with the directives of the DC. He did not file his reply to the report against him as required and he even failed to appear for the physical interaction with the DC and yet DC had informed him that it intended to give him a fair hearing before a final decision was taken against him. Before the DC made its decision, another matter came up against the Appellant which - 240 led to a decision being taken without communication to the Appellant. I believe that the DC proceeded the way it did partly because the Appellant did not comply with its directives initially.

It is an equity maxim that he who comes to equity must come with clean hands. Meaning that anyone seeking justice or fairness(equity) in a court of law must 245 themselves be free from wrongdoing or unfair conduct related to the issue at hand. If you seek justice, you must have a clear conscience and not be guilty of any wrongdoing that contributed to the problem. Therefore, I would decline to award general damages to the Appellant.

Costs are also not awarded for the same reason of the Appellant's failure to comply 250 with the DC's directives in the previous allegations against him.

# **Decision**

- 255 In the final result therefore, I find that this appeal succeeds in part and for purposes of ensuring that the Appellant's right to be heard is fully accorded to him, this court makes the following orders: - - **1. The impugned suspension of the Appellant from practicing his profession for a period of one year is hereby set aside forthwith.** - 260 **2. The Disciplinary Committee of ERB should re- schedule a proper disciplinary hearing of all allegations against the Appellant while observing principles of natural justice.** - **3. The Appellant will bare his own costs of this appeal.**

I so order.

**Dated, signed and delivered by email at Kampala on this 2 nd** 265 **day of December, 2024.**

**Esta Nambayo JUDGE**

**2 nd** 270 **/12/2024.**