[2024] UGHCCD 66

#### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

# [CIVIL DIVISION]

### **MISC. CAUSE NO. 143 OF 2023**

JANE AKELLO LUKONE =========================== APPLICANT

#### VERSUS

UGANDA REVENUE AUTHORITY =================== RESPONDENT

# **BEFORE: HON. JUSTICE EMMANUEL BAGUMA**

# **RULING**

This application is by notice of motion under article 28, 42 and 173 of the Constitution, section 33, 36, 38 and 42 of the judicature Act, rule 3, 4 and 6 of the Judicature (Judicial Review) Rules and clause 11.2.3 and 11.2.4(b) of the URA Human Resource Management Manual seeking for orders that; -

- 1. A declaration doth issue that the impugned termination of Employment of the Applicant by the Management Disciplinary Committee of the Respondent on 30th March 2023 is ultra-vires, irrational, illegal and tainted with procedural irregularity. - 2. A declaration that the decision of the staff Appeals Committee of 5 th May 2023 upholding the impugned termination of Employment of the Applicant by the Management Disciplinary Committee of the Respondent on the 30th March 2023 is tainted with procedural irregularity and is a nullity. - 3. An order of certiorari doth issue quashing the impugned termination of employment of the Applicant by the Management Disciplinary Committee of the Respondent on the 30th March 2023. - 4. An order of certiorari doth issue quashing the decision of the Staff Appeals Committee of 5th May 2023 upholding the impugned termination of Employment of the Applicant by the Management Disciplinary Committee.

The application is supported by the affidavit of **Jane Akello Lukone** whose details are on record but briefly stated that; -

- 1. From 1999 to March 2023 I was employed by the Respondent in different positions to wit; - i) Assistant Revenue Officer from 1999 to 2002, - ii) senior Revenue Officer from 2002-2005, - iii) supervisor Intelligence and investigations from 2005-2021 - iv) and manager corporate Informer Management from 1st February 2021 to 30th March 2023, the tasks I executed diligently and got the promotions on merit. - 2. On 30th March 2023 my employment was unlawfully terminated by the Management Disciplinary Committee of the Respondent. - 3. At the time of termination, I had been promoted to a position of Manager Corporate Informer Management and hence the Management Disciplinary Committee had no jurisdiction to handle my disciplinary case since it only has power to handle staff up to supervisor level and managers are handled by Staff Appeals Tribunal as tribunal of first instance. - 4. The decision of the staff appeals committee purporting to uphold the impugned termination by the Management Disciplinary Committee is marred with procedural impropriety and is legally untenable. - 5. Due process was never followed prior to my impugned termination by the Respondent which makes the decision ultra vires, irrational. Illegal, tainted with procedural irregularity and a nullity. - 6. As a result of the impugned termination, I have suffered greatly, mentally anguished and suffered financial distress to which I am entitled to general damages.

In reply, the Respondent opposed the application and in affidavit sworn by **Jimmy Okuja** briefly stated that; -

- 1. The applicant has been employed and working as supervisor Compliance after being transferred from deployment as supervisor Informer Management and the allegation that the applicant was a manager does not hold. - 2. The position of Manager Corporate Informer Management does not exist within the Respondent's organizational structure and the applicant was never employed as such.

In an additional affidavit by **Berna Arinaitwe** manager performance Management in the Corporate Service Department of Respondent and one of the two secretaries

to the Respondent's Management Disciplinary Committee whose details are on record, briefly stated that; -

- 1. On 19th January 2023, the Applicant was invited to appear before the Management Disciplinary Committee (MDC) scheduled for 27th January 2023 to answer to allegations of breach of confidentiality and failure to protect information when she allowed unauthorized third parties to access the Respondent's information. - 2. On 27th January 2023 hearing of the case against the applicant was adjourned upon her request to allow her ample time to avail her with particulars of allegations against her and to allow the Applicant time to prepare her defence. - 3. On 9th February 2023, the Applicant was given an update on the status of her case where she was informed that the staff compliance division has been directed to avail her with information to enable her adequately prepare her defence for the hearing. - 4. On 9th March 2023 the applicant was again invited to appear before the Management Disciplinary Committee scheduled for 17th March 2023 to answer to allegations of breach of confidentiality and failure to protect information when she allowed unauthorized third parties to access the Respondent's information. - 5. On 17th March 2023, upon the Applicant's submissions in defence and review of the evidence adduced against the Applicant, the Management Disciplinary Committee found the Applicant culpable of breach of confidentiality and failure to protect information when she allowed unauthorized persons to access URA formal/official information. - 6. At the same hearing the applicant was found culpable of negligence when she exposed URA formal documents to unauthorized parties. - 7. Based on the above grounds, the Committee decided to terminate the Applicant from the Respondent's employment in accordance with the Respondent's Human Resource Manual. - 8. I am aware that on 20th April 2023, the Applicant appealed to the Staff Appeals Committee for review of the Management Disciplinary Committee's decision. - 9. I am aware that on 5th May 2023, the Staff Appeals Committee held a meeting and considered the Applicant's appeal to which a decision was made upholding the Management Disciplinary Committee decision to terminate the

Applicant from the services of the Respondent and the same decision was communicated to the Applicant that very day.

10. The applicant was afforded a fair hearing by the Respondent, she was given sufficient time to prepare for the hearing, she was availed all the required documents in accordance with the Respondent's Human Resource Manual, laws in place, the established principles of natural justice and is thus not entitled to any of the remedies sought in this court.

In rejoinder the applicant reiterated her averments in chief.

## **Representation**

Counsel Mac Darman Kabega represented the Applicant while counsel Ndagire Patricia together with Eseza Victoria Sendege represented the Respondent.

At hearing both counsel agreed to file written submissions.

Counsel for the Applicant in his written submissions framed three issues for court's determination to wit; -

- *1. Whether the application is amenable to Judicial Review?* - *2. Whether the application raises grounds for judicial Review?* - *3. Whether the Applicant is entitled to the reliefs claimed?*

## **Submissions by counsel for the Applicant.**

## **Issue No. 1**

## *Whether the application is amenable to judicial review?*

Counsel submitted that rule 7A of the Judicature (Judicial Review) (amendment) Rules 2019 sets the factors to be considered by the court when handling applications for judicial review as;- the application must be amenable for Judicial Review, the aggrieved person has exhausted the existing remedies available within the public body or under law and that the matter involves an administrative public body or official.

Counsel referred to the case of **Birimba Aaron Vs Uganda Human Rights Commission MC No. 076 of 2022** in which case the Applicant had been dismissed from employment by the Respondent on grounds of gross misconduct, court held that; -

*"it is not in dispute that the Respondent is a public body that acted in exercise of its public function. The matter in issue involves public law principles that may have a bearing on other officers of the Respondent mainly concerning issues of discipline within the organization".*

Counsel submitted that the facts in this case are fundamentally similar to the above authority and hence this matter is amenable for Judicial review.

# **Issue No. 2**

## *Whether the application raises grounds for judicial Review?*

Counsel submitted that in the instant case the Applicant complains about illegality. Counsel defined illegality as in the case of **Council of Civil Service Unions Vs Minister for civil service (1985) AC 375** where Lord Diplock observed that; -

*"by illegality as a ground for judicial review, I mean that the decision maker must understand correctly the law that regulated his decision making power and must give effect to it. Whether he has or not is par excellence a justifiable question to be decided in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercised".*

Counsel submitted that the applicant in this case has adduced evidence to show that she was employed by the respondent in 1999 as an assistant Revenue Officer and over the years she had been promoted through the ranks and at the material time of her impugned termination by the Respondent she was serving in the position of Manager Corporate Informer Management to which she had been promoted on 1st February 2021.

Counsel submitted that according to Clause 11.2.4(b) and 11.2.5.(e) of the URA Human Resource Manual. Only staff Appeals Committee had jurisdiction to hear the Applicant since she was at the rank of manager.

Counsel referred to the case **Uganda Wildlife Authority Vs Kuluo Joseph Andrew & 2 Others CACA** and concluded that the decision to dismiss the Applicant was a nullity since the Management Disciplinary Committee had no jurisdiction to try her.

#### **Issue No. 3**

#### *Whether the Applicant is entitled to the reliefs claimed?*

Counsel submitted that since the applicant has proven that the decision terminating the applicant was by Management Disciplinary Committee which had no jurisdiction, it is a nullity, the same should be cancelled and the applicant reinstated back to her employment.

#### **Submissions by counsel for the Respondent.**

#### **Issue 1**

#### *Whether the application is amenable by judicial review?*

Counsel submitted that the Applicant brought this application veiled as a challenge of the jurisdiction of the Management Disciplinary Committee in handling her disciplinary hearing. She contends that at the time of her termination she was at the rank of a Manager an allegation that the Respondent denies. The real dispute is at which rank was the Applicant at by the time of termination. The determination of the real dispute between the parties requires the interrogation of the Applicant's employment contract, which becomes a matter of private law and not public law.

Counsel referred to the case of **Arua Kubala Park Operators and Market Vendors Cooperative Society Ltd Vs Arua Municipal Council HCMC 03 of 2016** where court held that; -

*"The remedy of judicial review is only available where the issue is of breach of public law and not for breach of a private law obligation. To bring an action for judicial review, it is a requirement that the right sought to be protected is not of a personal and individual nature but a public one enjoyed by the public at large".*

Counsel submitted that for satisfactory determination of the dispute between the parties, there is a considerable need to call oral evidence to prove the facts in contention as to the rank of the Applicant at the time of termination and hence not a proper case for judicial review. #### **Issue No. 2**

## *Whether the application raises grounds for judicial Review?*

Counsel submitted that the Application is based on illegality. The Applicant avers that she was unlawfully terminated by the Management Disciplinary Committee which did not have the jurisdiction to hear her case since she was at the level of a manager. Counsel submitted that the Applicant has not at any time adduced evidence of appointment or promotion letter to prove that she was appointed and or promoted to the level of a Manager.

Counsel referred to section 103 of the Evidence Act which puts the burden of proof on the Applicant that she was appointed a manager.

Counsel referred to clause **2.2 (a) Human Resource Manual** clearly provides that

## *"The Board shall be responsible for the recruitment and appointment of staff at the level of managers and above".*

Counsel contended that the Applicant should have presented an appointment letter or promotion letter duly issues by the Board which she did not.

### **Issue No. 3**

## *Whether the Applicant is entitled to the reliefs claimed?*

Counsel submitted that since the Applicant failed to prove that she was appointed a manager by the time of termination, she was rightly tried by the Management Disciplinary Committee and hence not entitled to the remedies sought in this application.

#### **Determination of court**

#### **Issue No. 1**

#### *Whether the application is amenable for judicial review?*

The position of the law is that judicial review is concerned not with the decision but with the decision making process. Judicial review involves an assessment of the manner in which a decision is made. It is not an appeal and the

jurisdiction is exercised in a supervisory manner, not to vindicate rights as such but to ensure that public powers are exercised in accordance with the basic standards of legality, fairness and rationality. **See Attorney General vs Yustus Tinkasimmire & Others, CACA No. 208 of 2013.**

In addition, the Judicature (Judicial Review) (Amendment) Rules 2019 sets out the factors to be considered by the court when handling applications for judicial review.

Rule 7A provides that; *(1) The court shall, in considering an application for judicial review, satisfy itself of the following; -*

*(a) That the application is amenable for judicial review; (b) That the aggrieved person has exhausted the existing remedies available within the public body or under the law; and (c) That the matter involves an administrative public body or official*

Basing on the above authorities, for a matter to be amenable for judicial review, it must involve a public body in a public law matter. Two requirements, therefore, need to be satisfied; first, the body under challenge must be a public body whose activities can be controlled by judicial review; and secondly, the subject matter of the challenge must involve claims based on public law principles and not the enforcement of private law rights.

In the case of **Arua Kubala Park Operators and Market Vendors' Cooperative Society Ltd vs Arua Municipal Council, HC MC No. 003 of 2016, court** expressed the opinion that;-

*"in order to bring an action for judicial review, it is a requirement that the right sought to be protected is not of a personal and individual nature but a public one enjoyed by the public at large. The "public" nature of the decision challenged is a condition precedent to the exercise of the courts' supervisory function".*

In the instant case, it is not in dispute that the Respondent is a public body that acted in exercise of its public function. The matter in issue involves public law principles that may have a bearing on other officers of the Respondent mainly concerning issues of discipline within the organization.

I accordingly find that the application is amenable for judicial review.

Issue No. 1 is answered in the affirmative.

## **Issue No. 2**

## *Whether the application raises grounds for judicial Review?*

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 *Pastoli Vs Kabale District Local Government Council & Others [2008] 2 EA 300* court noted that;

*"in order to succeed in an application for judicial review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality or procedural impropriety".*

In the instant case, the applicant based her application on illegality. She alleged that by the time of termination, she was a manager and hence the Management Disciplinary Committee had no jurisdiction to hear her disciplinary case but rather the Staff Appeals Committee.

Illegality has been described as the instance when the decision making authority commits an error in law in the process of making a decision or making the act the subject of the complaint. Acting without jurisdiction or ultra vires or contrary to the provisions of the law or its principles are instances of illegality. See **Lord Diplock in the case of Council of Civil Service Unions Vs Minister for Civil Service (1985) AC 375**.

A public authority will be found to have acted unlawfully if it has made a decision or done something without the legal power to do so. Decisions made without legal power are said to be ultra vires, which is expressed through two requirements: one is that a public authority may not act beyond its statutory power; the second covers abuse of power and defects in the exercise. **See: Dr. Lam –Lagoro James v Muni University, HCMC No. 007 of 2016**

In the instant case, the applicant contended that she joined the Respondent 1999 as an Assistant Revenue officer and she grew through the ranks and by the time of her termination, she was appointed manager corporate Informer Management. She referred to Clause 11.2.4(b) and 11.2.5 (e) of the URA Human Resource Manual. Which states that Only Staff Appeals Committee had jurisdiction to hear the Applicant's disciplinary case since she was at the rank of manager.

On the contrary, the Respondent denied the fact that the Applicant was appointed Manager by the time of termination. It contended that the Applicant was a supervisor and hence the Management Disciplinary Committee had jurisdiction to hear her disciplinary case.

Basing on the evidence on record adduced by the applicant, there is nothing to show that she has ever been appointed a manager by the Respondent. The applicant labored so hard to convince court that at the time of termination, she had been promoted to a position of a Manager Corporate Informer Management. However, she did not produce any single piece of evidence to show that she was a manager. The evidence adduced showed that she was a supervisor by the time of termination and the Management Disciplinary Committee had jurisdiction to handle her disciplinary case.

According to clause **2.2 (a) of the Human Resource Manual** of the Respondent attached to the Applicant's affidavit in support provides that; -

# *"The Board shall be responsible for the recruitment and appointment of staff at the level of managers and above".*

Therefore, court expected the applicant to adduce evidence of an appointment letter or Letter of promotion duly signed by the board to prove the position she alleged she held in the Respondent at the time of termination. Without such evidence, this court is left with no evidence to annul the proceedings of the Management Disciplinary Committee on ground that it did not have jurisdiction.

Issue No. 2 is resolved in the negative.

### **Issue No. 3**

## *Whether the Applicant is entitled to the reliefs claimed?*

Since the applicant failed to prove grounds for judicial review, she is not entitled to the remedies sought.

Issue No. 3 is resolved in the negative.

### **Conclusion.**

The application fails with the following orders; -

- 1. The application is hereby dismissed - 2. Given the nature and circumstances of this case, I make no order as to costs.

Dated, signed, sealed and delivered by email on this **8 th** Day of **April 2024**.

Emmanuel Baguma

Judge.