[2025] UGHCCD 51

### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

### (CIVIL DIVISION)

## JUDICIAL REVIEW CAUSE NO. 016 OF 2024

CLAIRE NASSALI MUGABI ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

### 1. UGANDA TOURISM BOARD

2. LILY AJAROVA ::::::::::::::::::::::::::::::::::::

# BEFORE: HON. JUSTICE ESTA NAMBAYO

#### **RULING**

The Applicant, Claire Nassali Mugabi, brought this application under Articles 42 of the Constitution of the Republic of Uganda, Sections 33, 36(1), 37 & 38 of the Judicature Act, Rules 3(1) (a), 4, 5, 6, 7 (1) & 8 of the Judicature (Judicial Review) Rules, 2009, and the Human Resource of the 1^st Respondent against Uganda Tourism Board (UTB) and Lily Ajarova (hereinafter referred to as the 1^st & 2^nd Respondents respectively), seeking for: -

- 1. A declaration that the decision of Dismissal of the Applicant from employment with the 1^st Respondent in her position as Marketing Manager is/was ultravires, unfair, illegal and contrary to the 1995 Constitution, and the Human Resources Manual of the 1^st Respondent. - 2. A declaration that the subsequent direction of the Applicant to hand over all the 1^st Respondent' property and denial of access to the 1^st Respondent's premises is/was unfair, illegal and contrary to the 1995 Constitution, and the Human Resources Manual of the 1^st Respondent.

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- 3. An Order of Certiorari quashing the decision taken by the 2^nd Respondent or any other officer of the 1^st Respondent dismissing the Applicant from her employment with the 1^st Respondent as the marketing manager. - 4. An Order of Mandamus compelling and directing the Respondents to restore the Applicant to her position with full pay, - 5. An order quashing the decision taken by the 2^nd Respondent or any other officer of the 1st Respondent arbitrarily Dismissing the Applicant from her employment with the 1^st Respondent as the Marketing Manager. - 6. An Order of Prohibition restraining the Respondents from (further) flouting the Applicant's constitutional right to a fair hearing, principles of natural justice and Public Service Disciplinary Procedures, and the Human Resources Manual of the 1^st Respondent. - 7. A Permanent Injunction retraining the Respondents from enforcing or in any way taking any action in furtherance of the impugned orders of Dismissal of the Applicant, direction to hand over all the 1st Respondent's property and denial of access to the 1^st Respondent's premises. - 8. An Order for general, exemplary and punitive damages for inconvenience, anxiety, embarrassment and mental stress caused to the Applicant. - 9. An Order that the Respondents, jointly and severally pay the Applicant the costs of this Cause.

The grounds of this application are laid down in the affidavit -in- support of the application but briefly are that: -

- 1. The 1^st Respondent is the employer of the Applicant in her position and Department as Marketing Manager. - 2. The 2^nd Respondent is the Chief Executive Officer of the 1^st Respondent.

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3. On the 28/05/2024, the 2^nd Respondent, as Chief Executive Officer of the 1^st Respondent, illegally dismissed the Applicant from office and directed her to hand over all office property and to desist from accessing the 1st Respondent's premises, a decision that was communicated to the Applicant through a letter written by the 2^nd Respondent and delivered to the Applicant

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through a WhatsApp message sent to her by the 1st Respondent's Human **Resource Manager.**

- 4. On the 30/05/2024, the 2^nd Respondent, acting in her capacity as the Chief Executive Officer of the 1^st Respondent, sent out emails to all staff of the 1^st Respondent informing them that the Applicant was no longer an employee of the 1^st Respondent and requiring them to address all matters in the Applicant's office to herself (the 2^nd Respondent) directly. - 5. Despite objections, complaints and concerns raised by the Applicant over the usurpation and exercise of powers that the 2^nd Respondent didn't have, the disregard of the due process and unfortunate decisions that were being taken by the 2^nd Respondent that were irregular, illegal and that would directly and adversely affect the Applicant, the Respondents did not change their decision. - 6. That in fact besides not following the due process, the powers of dismissal that the 2^nd Respondent purported to exercise or the powers to carry out an inquiry [take disciplinary action leading to a dismissal are not vested in her under the 1^st Respondents Human Resource Manual. - 7. As a result of the actions and/or omissions of the Respondents or their Officials, the Applicant's career growth has been jeopardized and her employment has been unfairly, unduly and illegally ended. - 8. The Applicant has suffered and continues to suffer mental distress, inconvenience, embarrassment and anxiety due to the actions and/or omissions of the Respondents or their Officials/persons acting under their authority and /or instruction. - 9. The Applicant has unlawfully and unfairly lost her job with the 1^st Respondent and therefore her source of earning due to the acts and/or omissions of the Respondents or their Officials all of which this court has the powers to undo. - 10. The work and programs of the 1st Respondent will not in any way be jeopardized if the said dismissal of the Applicant is quashed and set aside. - 11. It is in the interest of fairness, justice and good administrative practice that the Dismissal of the Applicant is quashed and set aside and the Applicant reinstated to her position.

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The Respondents filed an affidavit in reply opposing this application'

## Background to the aPPlication.

The brief background to this application is that the Applicant was employed as ^a Marketing Manager with the 1st Respondent'

on the 28th May, 2024 the Applicant was dismissed on grounds that she procured employmentwithUTBbyfraud,contrarytoregulationT.2.3(j)ofthel'tRespondent,s Human Resource Manual.

It is the Applicant's contention that her dismissal was illegal and procedurally improper, hence this aPPlication.

### Representation

LearnedCounselMirembeMaureenappearedfortheApplicant,while. JamesZeerewas for the Respondents. written submissions were filed by Counsel for the parties as directed by Court.

# Preliminary Point of law

Counsel for the Respondents raised a preliminary point of law in his submissions on grounds that the Applicant did not exhaust existing remedies available within the 1sr Respondent before coming to court.

HereliedonruleTAoftheJudicature(JudicialReview)(Amendment)Rules,2019and the cases of Kihunde Sytvia & another -v. Fort Poftat Municipal Council & Anor, HCMANo.006lof20l6SerumagaGodfrey.v-MakerereUniversityCouncil&orc, MC No. 53 of 2O2O and Hon Henry Muganwa Kaiura 'v' Commissioner Land Registration & Attorney General, MC No' 232 of 2019 and prayed that this Court dismisses this aPPlication

ln reply, Counsel for the Applicant submitted that the existence of alternative remedies does not preclude judicial review, particularly when the alternative remedies are inadequate or do not address the grievances raised. she relied on the case of Nabiryo .v- uganda Revenue Authority [2015] UCHC Z where Justice Hellen obura held that; ,internal remedies, when ineffective or insufficient do not preclude judicial review. This case reinforces the principle that if internal procedures do not offer a fair and adequate remedy, judicial review remains a viable option"'

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Counsel explained that the 2^nd Respondent singlehanded terminated the Applicant without the Board of Directors as required under Clause 7.3 of the 1^st Respondent's Human Resource Manual. That the 2^nd Respondent's bypassing the Board of Directors and overstepped her authority, violating the internal governance structure of the 1st Respondent and the Applicant was deprived of the protections and procedures intended under the 1^st Respondent's governance framework.

Counsel submitted that in this case, judicial review is appropriate because the internal mechanism for termination (the Board's involvement) was circumvented by the 2^nd Respondent, thereby creating an unfair process. That the Nabiryo case affirms that even when internal remedies exist, if they are not adhered to or if they do not offer a fair resolution, judicial review can be sought to address the unlawful actions of the decisionmaker, who in this case is the 2^nd Respondent.

That since the 2^nd Respondent acted outside her powers, judicial intervention is warranted to correct the procedural irregularity and protect the Applicant's employment rights. Counsel prayed that this court quashes the 2^nd Respondent's decision to terminate the Applicant so that the matter is sent back to the Board to ensure that the proper disciplinary procedure is followed.

That, be that as it may, the 2^nd Respondent has had ample time to intervene and explore alternative remedies, but she has chosen not to engage or take meaningful steps to resolve the issue. That failure to address the matter promptly, despite the 1st Respondent's ability to review the termination, shows lack of commitment to resolving the matter internally, to the detriment of the Applicant. Court prayed that court overrules this objection and grants the application.

#### **Analysis**

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Judicial review, under the Judicature (Judicial Review) (Amendment) Rules, 2019 means the process by which the High Court exercises its supervisory jurisdiction over proceedings and decisions of subordinate courts, tribunals and other bodies or persons who carry out quasi-judicial functions or who are charged with the performance of public acts and duties.

In the case of National Drug Authority & Another -v- Nakachwa Florence Obiocha CA No. 281 & 286 of 2017, the Court of Appeal held that;

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"Judicial review is concerned with the decision-making process and not the decision itsetf. That the purpose of the remedy of judicial review is to ensure that the individual b given fair treatment by the authority to which he or she has been subjected."

Rule 7A (1) of the Judicature (Judicial Review) (Amendment) Rules, 2019, provides that the Court in considering an application for judicial review lnust satisfy itself that: -

(a) the application is amenable for judicial revrew,

(b) the aggrieved person has exhausted the existing remedies available within the public body or under the law and,'

(c) the matter involves an administrative public body or official among others. ln this case, the Applicant's claim is that the 2nd Respondent who is the CEO for the 15t Respondent dismissed her from office without giving her an opportunity to be heard. counsel for the Responclents has argued that the Applicant did not exhaust internal mechanisms as required under Rule 7A (1) (b) of the Judicature, (Judicial Review) (Amendment) Rules, 2019.

lfind counsel's argument not viable as the Applicant's complaint is not against the procedure followed by the 1't Respondent, but rather, her complaint is against the procedure and actions of the 2nd Respondent as CEO'

The 2nd Respondent states under paragraph 6 of her affidavit in reply, that she was tasked by the 15t Respondent's Board to verify academic documents of all staff of the 1sr Respondent. ln the process of her verification exercise, the 2nd Respondent wrote to the National Council for Higher Education to verify the Applicant's academic papers obtained from the University of colorado Denver in the USA and that when she received ^areply that the academic papers that the Applicant presented claiming to be from the University of colorado were not genuine, she dismissed the Applicant from office.

The 2nd Respondent dismissed the Applicant without seeking guidance from the Board that had tasked her to carry out the investigation. Neither did she require an explanation from the Applicant. This, in rny view, makes this case amenable for judicial review.

There is no evidence to show that the 2nd Respondent gave chance to the Applicant to clarify on the findings that she (2nd Respondent) had obtained from the National council for Higher Education. The 2nd Respondent took immediate action. The Applicant says she was dismissed immediately. The dismissal was communicated to her by WhatsApp'

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rl.lDq: She was immediately restrained from accessing her office and the rest of the staff were notified and advised to channel all the Applicants work to the 2^nd Respondent.

The principle of *audi alteram partem*, also known as "hear the other side," is a fundamental principle of natural justice. It gives opportunity to all parties to present their cases before a decision is made.

In the case of *Onyango Oloo –v- Attorney General (1989) EA 456*, the Court of Appeal held that;

"The principle of natural justice applies where ordinary people would reasonably expect those making decisions which will affect others, to act fairly, and they cannot act fairly and be seen to have acted fairly without giving an opportunity to be heard... There is a presumption in the interpretation of statutes that rules of natural justice will apply and therefore the authority is required to act fairly and so to apply the principles of natural justice.... A decision in breach of the rules of natural justice is not cured by holding that the decision would otherwise have been right since if the principle of natural justice is violated, it matters not that the same decisions would have been arrived at....."

In this case, Clause 7.3 (a) of the 1^st Respondent's Human Resource Manual provides that the Board of Directors shall have overall disciplinary control over all employees of the UTB.

Under 7.3(b) such disciplinary control includes among others powers of suspension, demotion, dismissal/termination plus powers to review the decision to dismiss or to terminate an Employee in case of appeal

7.3(c) provides that for disciplinary and administrative purposes the responsibility shall be vested in the appointing authority.

Under clause 7.3.1(a), it is provided that the rules of natural justice shall apply in all disciplinary matters

7.3(c) provides that no disciplinary measure except in verbal warning, shall be instituted against any employee without (such a member) being informed in writing of what his/her offence is.

In this case, I have already pointed out that the 2^nd Respondent acted without consultation and/or reporting back to the Board of Directors and yet it is the Board that tasked her to verify academic documents of all staff.

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Now as it turns out from the above clauses of the Human Resource Manual, the 2^nd Respondent had no powers to dismiss the Applicant. It does not matter whether after hearing the case, the Board arrives at the same decision. What is clear is that the 2^nd Respondent had no powers to dismiss the Applicant. Her action was illegal and/or ultra vires.

# In Kuluo Joseph Andrew & Ors -v- Attorney General & Ors, MC No. 106 of 2010, Court held that;

"judicial review is concerned not with the decision per se but the decision making process. It 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 basic standards of legality, fairness and rationality."

Illegality is when the decision-making authority commits an error of law in the process of taking the 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.

In the case of *Council of Civil Service Unions –v- Minister for the Civil Service (1985)* AC 375 (cited with approval in Mugabi Edward -v- Kampala District Land Board & Wilson Kashaya, Misc. Cause No. 18 of 2012), Lord Diplock noted that;

"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 judge, by whom the judicial power of the state is exercised."

Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision, such a decision is usually in defiance of logic and acceptable moral standards.

In *Council of Civil Service (1984), AC page 110, Lord* Diplock defined irrationality as; "Wednesbury reasonableness" he cited the decision in Associated Provincial Pictures Houses Ltd -v- Wednesbury Corporation (1984) K. B 223 wherein it was stated that;

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irrationality is born out of instances when the decision making authority acts so unreasonably that in the eyes of the court hearing the application, no reasonable authority prope y diecting itself to the facts and the law wou/d make such decisions." ln this case, lfind the 2nd Respondent's action of dismissing the Applicant by way of whatsApp, without giving her an opportunity to be heard, immediately blocking her from accessing her office and yet requiring her to hand over and immediately allocating the Applicant's docket to herself to be irrational.

ln Twinomuhangi -v- Kabale District & others (2006) (HCB )l ¹³⁴Kasule, J, (as he then was) noted that;

"Procedura/ impropriety is when there is failure to act fai y on the part of the decision making authority in the process of taking a decision. The unfairness may be in the nonobseruance of the rules of natural justice or to act with procedural unfairness towards one to be affected by the decision. lt may also involve failure to adhere and obserue procedural rules expressly laid down in a statute or legislative instrument by which such authority exercises jurisdiction to make a decision:

Dismissing the Applicant without according her a hearing and yet the Human Resource Manual clearly lays down the procedure to be followed if any staff is to be dismissed amounts to procedural impropriety.

Therefore, lfind that the 2nd Respondent's dismissal of the Applicant was illegal, irrational and it contravened principles of natural justices'

#### Remedies

The Applicant sought for orders of certiorari, Mandamus, prohibition, permanent injunction restraining the Respondents from dismissing her from office, damages and costs of this suit.

## a) Certorari

ln John Jet Tumwebaze -v- Makerere llniversity Council and ort cA No. 78 of 2005, Kasule, J, (as he then was) defined Certiorari as;

"a prerogative writ issued to quash a decision which is ultra vires or vitiated by an error on the face of the record."

tn Dott services Ltd -v- Altorney General and Auditor General MC No. 125 of 2otD VF Musoke Kibuuka. J. (as he then was) noted that;

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"Certiorari issues to quash decisions made by a statutory body or by a public officer or an inferior court or tribunal. It cannot issue against mere findings, recommendations, suggestions or observations."

In this case, the 2^nd Respondent made a decision to; and actually dismissed the Applicant. This court has established that her dismissal of the Applicant was ultra vires.

#### b) Mandamus

# In Halsbury's Law of England, 4th Edition Volume 1 at Page 111 from Paragraph 89; it is stated that;

"The order of mandamus is of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty.

Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual."

Despite the 2^nd Respondent's failure to follow the right procedure for handling staff who have contravened provisions of the Human Resource Manual, the 1^st Respondent's Board of Directors failed and/or refused to intervene, leaving the Applicant to continue in an illegal dismissal.

### **General Damages**

# In James Fredrick Nsubuga –v- Attorney General, HCCS No. 13 of 1993.

General damages are awarded at the discretion of court, and are always as the law will presume to be the natural consequence of the defendant's act or omission.

In the case Uganda Revenue Authority -v- Wanume David Kitamirike CACA No. 43 of 2010, the Court of Appeal also held that;

"... general damages mean compensation in money terms through a process of the law for the loss of injury sustained by the plaintiff at the instance of the defendant.

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... intended to restore the wronged party into the position he would have been in if there had been no breach of contract."

The Applicant has been out of employment. She was humiliated when she was dismissed by WhatsApp communication and all staff were notified. She was blocked from accessing her office. I find that all the above actions caused injury to the Applicant's self esteem. I find UGX 5,000,000/ reasonable as general damages to the Applicant.

In the circumstances, this court makes the following orders: -

- 1. It is hereby declared that the 2^nd Respondent's dismissal of the Applicant from her employment with the 1^st Respondent was illegal, irregular and procedurally improper. - 2. An order of certiorari is hereby issued quashing the dismissal of the Applicant from the 1^st Respondent. - 3. An order of Mandamus is hereby issued compelling the Respondents to restore the Applicant to her office with full pay from the date of the illegal dismissal. - 4. The 1^st Respondent should follow principles of natural justice and provisions laid down in the 1^st Respondent's Human Resource Manual to investigate the alleged case of forgery of the Applicant's academic documents so as to bring the matter to its logical conclusion. - 5. The Respondents pay general damages of UGX. 5,000,000/- [five million Uganda shillings only] to the Applicant.

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6. The Respondents pay costs of this application.

I so order.

Dated, signed and delivered at Kampala on this 4th day of February, 2025.

**Esta Nambayo**

JUDGE

Linter Limon Linialy Ex<br>Legistree