[2024] UGHC 377

# THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA HOLDEN AT GULU

### MISC. CAUSE NO. 001 OF 2024

## DR. SHADAT SSEMAKULA MUTYABA MOHMEDED............ APPLICANT

#### **VERSUS**

...................................... **GULU UNIVERSITY....................................**

### 20

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### BEFORE: HON. MR. JUSTICE GEORGE OKELLO

#### **RULING**

A preliminary point of law was raised by learned counsel for the Respondent, Mr. Kafeero Alexander of M/s Okecha Baranyanga & Co. Advocates when this Cause came up for hearing on 12^th April, 2024. Learned counsel addressed court orally. Mr. Jimmy Muyanja, learned 30 counsel for the Applicant, too, responded orally. The objection is that the Application for judicial review in which the Applicant seeks to challenge his interdiction by the Respondent, is not properly before this court. The interdiction is contained in a letter dated 8^th December, 2023. In his objection, the Respondent's counsel contends that the substance of the 35 Application seeks for a determination of private rights arising from a contract of employment for which judicial review is not available. Learned counsel submitted that, for judicial review to be invoked, the Respondent

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- $\mathsf{S}$ must be a public body exercising public functions, and the subject matter must involve a claim based on public law principles and not enforcement of private rights. Learned counsel argued that whereas the Respondent is a public body, in interdicting the Applicant, the Respondent was not exercising a public function. He wound his address by submitting that, 10 since the Applicant seeks to enforce private rights arising from employment contract, the Applicant ought to seek redress from the Industrial Court, and not this Court. He prayed the preliminary objection be allowed with costs. - 15 In response, Mr. Muyanja contended that the right to invoke judicial review is premised on article 42 of the Constitution of the Republic of Uganda, 1995, and section 36 of the Judicature Act Cap 13. Learned Counsel submitted that the Industrial Court lacks Judicial Review power and in any case, that court lacks inherent mandate to entertain every matter given that matters are only referred to it by Labour Officer. Learned 20 counsel relied on the case of Eng. Mugyenzi Vs. Uganda Electricity Generation Company Limited, Civil Appeal No. 167 of 2018. He went on to refer to the case of Council of Civil Service Unions Vs. Minister for Civil Service [1985] AC 374 for the distinction between public and private rights. He prayed that the preliminary objection is over-ruled with 25 costs.

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- $\mathsf{S}$ I find it proper to state the facts giving rise to the matter. The Applicant was at the time of lodging the application on 30th January, 2024, an employee of the Respondent as a Dean Faculty of Law. He rose through the ranks from the position of temporary senior lecturer to senior lecturer. respectively. He achieved these milestones in August 2015, August 2016, - and assumed the position of the Dean in July 2022. This Court, however, $10$ understands from another Cause lodged by the Applicant before it (Misc. Cause No. 002 of 2024), that the Applicant has since been dismissed from employment. He was dismissed on 1^st February, 2024. - From his pleading in the instant matter, the affidavit in support, and the 15 annexures, it is apparent that the Applicant had applied for promotion to the rank of Associate Professor, and in June 2023, he sought for an update. The Sub Committee of the Respondent Council raised a number of issues during the vetting process, and required the Applicant's response. The queries generally relate to what the Respondent termed 20 glaring inconsistencies in the names used on the Applicant's academic and other documents, as well as the date of birth declared on academic documents, bio data, deed poll, which collectively show that the Applicant was born on 25^th July, 1983 yet the Applicant now purports several years later (November 2023) vide a statutory declaration, that he was born on 25 25^th January, 1978, and thus claims that the date of 25^th July, 1983 appearing on his National ID was entered inadvertently. The Applicant

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was, therefore, invited for an interface with the Top Management of the $\mathcal{S}$ Respondent, to offer clarity. Whereas the Applicant's lawyer a one Higenyi Nassar Badiru agrees in his affidavit in support of the Applicant, that the Applicant appeared before the Respondent's Top Management, the Applicant denies that fact in his rejoinder affidavit. Be that as it may, after $10$ the disputed appearance, the Respondent still demanded that the Applicant responds to the issues raised, asserting that no response was forthcoming as the Respondent still felt a number of inconsistencies in the Applicant's academic documents as well as unexplained changes in the names appearing on other documents, needed clarity. The Respondent claimed that the required information would aid it in processing the 15 application for promotion. The Applicant did respond that the issues raised by the Respondent were the subject of investigations by the Inspectorate of Government (IG). He also claimed that the Application for promotion was overtaken by an event. That said, the Applicant nonetheless 20 undertook to avail documentations to the Respondent on conclusion of the IG investigations. The Respondent insisted that the Applicant responds to the issues raised. It stated that, since the Applicant failed to respond to Top Management, the matter would be, and indeed was referred to the University Appointments Board to which the Applicant was required to 25 direct his response. The Respondent posed several questions for a response to the Appointments Board. The Applicant was then required to appear before the Appointments Board on 7^th December, 2023. The

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$\mathsf{S}$ Applicant relented and made a response to the Appointments Board well before the scheduled appearance. Whereas the Applicant's lawyer (Mr. Higenyi) deposes that the Board sat as scheduled but adjourned its deliberations since it was late, the Applicant claims the Board instead sat on $8^{th}$ December, 2023. Be that as it may, by letter dated $8^{th}$ December, 10 2023, the Respondent interdicted the Applicant from duty, relying on section 15.9 of its Human Resource Manual, 2017 (as amended). The interdiction letter gives a history, alluding to the past correspondences between the parties and the appearances by the Applicant before the Respondent's Top Management. It also refers to the invitation to appear before the Appointments Board. The interdiction letter reproduces the 15 issues on which responses had been required. The letter refers to the response given by the Applicant. It states that the response has created a need for more clarity by the Applicant. The Respondent posed further questions for further response. It asserted that the glaring inconsistencies 20 are deemed to constitute misconduct under the provisions of the Human Resources Manual, 2017. The provisions cited deal with acts that bring the University into disrepute; acts of perjury; falsification of records or documents; and making false documents. The interdiction letter concludes that the Top Management resolved to interdict the Applicant from service 25 as investigations into the incoherent information are brought to a conclusive end. The concluding part of the interdiction letter reads:

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$\mathsf{S}$

"In line with section 15.9 of the Manual, you are hereby interdicted $\mathsf{S}$ from the service of the University with immediate effect, in order to pave way for more investigations into your case. You will be accorded the opportunity to be heard before the Appointments Board, in line with the principles of natural justice. While on interdiction, you will $10$ be on half pay, and you shall not be allowed to access your office and the University premises or leave the Country unless a written express permission is granted either by me or the Vice Chancellor, until investigations are concluded, and your case decided upon by the Appointments Board. You are required to immediately hand over office and any other University property in your possession to the 15 Deputy Dean, Faculty of Law."

The letter is signed by the University Secretary, David Obol Otori, and copied to various persons, including the Chairperson Gulu University 20 Council, Chairperson Gulu University Appointments Board, Vice Chancellor, to mention but three.

## Resolution of the preliminary points of law

A preliminary objection is one which consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and 25 which if argued as a preliminary point may dispose of the suit. A preliminary objection raises a pure point of law which is argued on the

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assumption that all the facts pleaded by the other side are correct. See: $\mathsf{S}$ Mukisa Biscuit Manufacturing Co. Ltd Vs. West End Distributors Ltd, [1969] EA 696; Patrick Mukasa Vs. Andrew Douglas Kanyike, Civil Appeal No. 13 of 2022 (SCU); Eng. Yashwant & another Vs. Ngude Odaka & 5 Others, HCT-00-CC-CS 365 of 2007.

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In the case of Attorney General Vs. Maj. General David Tinyefuza, SC **Constitutional Appeal No. 1 of 1997, the Supreme Court of Uganda** cited with approval *Everett Vs. Ribands* where Rommer, L. J opined, inter alia, that, where you have a point of law which if decided one way is going to be decisive of litigation, the advantage ought to be taken of the facilities afforded by the rules of court to have it disposed of at the close of the pleadings or very shortly after the close of the pleadings.

In the instant case, the Respondent indicated in paragraphs 6, 7 and 8 of the affidavit in reply, deposed by its University Secretary, that preliminary 20 objections would be raised at the hearing. The deponent went on to state generally that, the Application is incompetent, premature and frivolous and that the Applicant has not exhausted internal appeal remedies before filing the application. He added that the Application is not amenable to judicial review. 25 HAAOOw.

$\overline{7}$ $\mathsf{S}$ In my resolution, I will confine myself to the points of law ultimately argued. The arguments are already stated at the start of my ruling.

To begin with, judicial review means the process by which the High Court exercises its supervisory jurisdiction over the proceedings and decisions 10 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. See rule 2 (1) of the Judicature (Judicial Review) Rules, of 2009 (as amended) by S. I 32 of 2019. The purpose of judicial review is to ensure that the individual receives a fair treatment by the authorities to which they have been subjected. Judicial review is thus 15 concerned not with the decision in issue per se but with the decision making process. It involves an assessment of the manner in which the decision is made. It is not an appeal and the jurisdiction of the High Court 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 20 standards of legality, fairness and rationality. In Judicial review, the opinion of the Judge is not construed as that of the authority exercising public powers. Judicial review enhances the quality of decision making by public bodies as they uphold the values of fairness, reasonableness, and objectivity in the conduct and management of public affairs. It restrains 25 or curbs arbitrariness, checks abuse of power, enhances the rule of law in government business and other public entities while ensuring public

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$5$ accountability. In judicial review, Court is concerned with recognizable public wrong committed. It is not about whether court agrees with the decision. Judicial review is not an appeal (a rehearing) of the merits of the decision the public body makes. Rather it is concerned with the legal and procedural validity of the decision. In Judicial review, a court does not review and examine the evidence with a view to informing its own decision $10$ about the substantial merits of the case. See: **Kalou Joseph Andrew &** 2 others Vs. the AG and 6 others, Misc. Cause No.106 of 2001 (Bamwine, J. (as he then was); Obol James Henry & 2 others Vs. Gulu University and Prof. George Ladaah Openjuru, Misc. Cause No. 16 of 15 2023.

In considering whether or not to grant prerogative writs of judicial review, court considers the nature of the matter in respect of which the relief may be granted, the nature of the persons or bodies, and all the circumstances of the case, and assesses whether it would be just and convenient for the orders to issue. An applicant for judicial review must, however, demonstrate a direct or sufficient interest in the matter. See rules 3 and 3A; and section 36 (3) of the Judicature Act Cap 13 as amended by Act No. 3 of 2002.

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$\mathsf{S}$ Thus in considering an application for judicial review, court must satisfy itself that the application is amenable to judicial review, that the aggrieved person has exhausted the existing remedies available within the public body or under the law; and that the matter involves an administrative public body or official. See rule 7A of the Judicial Review Rules (supra). 10 The court may grant judicial review relief where the decision making body or officer did not follow due process in reaching the decision and as a result there was unfair and unjust treatment.

The jurisdiction to entertain an application for judicial review and grant 15 reliefs lies exclusively in the High Court, pursuant to section 36 $(1)$ and $(2)$ of the Judicature Act as amended (*supra*). The court can grant several reliefs such as an order of mandamus, prohibition, certiorari, injunction, declaration, and may award damages as provided for by law. Judicial review matters may also be anchored in Article 42 of the Constitution of Uganda, 1995, as a person aggrieved with a decision of an administrative 20 tribunal may file for judicial review. See: *Hon. Abdu Katuntu & Kimberly* Kasana Vs. MTN Uganda Ltd and 6 Others, HCCS No. 248 of 2012 (Madrama, J., as he then was).

In his submission, learned counsel for the Respondent concedes that the 25 Applicant is a public body but insists the subject matter before court does

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not involve claims based on public law principles but those for $\mathsf{S}$ enforcement of private law right, and thus, not proper for judicial review. I agree that courts have stressed that only decisions of public bodies are amenable to judicial review, of course with a rider that where private bodies exercise powers of a public nature, a court may extend its judicial review power in appropriate cases. For instance, the decision of the 10 Students Disciplinary Committee of a Private University was found to be justiciable under judicial review because the University was established by legal notice No. 2 of 2005 pursuant to section 102 (3) of the Universities and Other Tertiary Institutions Act No. 7 of 2001, and its administrative functions were stated under section 10 of its Charter, which include 15 exercise of a quasi- judicial functions in disciplinary proceedings. Therefore, the court found the function of the private University to fall under the exercise of public law powers. See: Yasin Sentumbwe Munagomba & Simon Semuwemba Vs. Uganda Christian University, HC MC No. 22 of 2017 (Margaret Mutonyi, J.) 20

From the decided case, it appears each case will depend on its peculiar facts and circumstances. I only wish to add that the scope of judicial review is not static.

Under the Judicial Review Rules (supra), a public body is widely defined 25 to include any corporation established by an Act of Parliament for the purposes of any written law or public undertakings of public education for the benefit of the public. I take judicial notice that the Respondent was

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$5$ established as a Public University by Statutory Instrument No. 16 of 2003, pursuant to section 22 of the Universities and Other Tertiary Institutions Act, Act No. 7 of 2001. It was established on the recommendation of the National Council for Higher Education with the resolution of Parliament of Uganda. A Public University thus as defined under section 2 of the Universities and Other Tertiary Institutions Act, Act No. 7 of 2001 means 10 a University established by the Minister responsible for education with the approval of Parliament under section 22 of the Act and maintained out of public funds. A Public University is also a body corporate with perpetual succession and common seal and may sue or be sued in its corporate name and may do all such things as bodies corporate may do, subject to $15$ the Act. Of course, in judicial review matters, there is no requirement that a public body be clothed with corporate personality before it can be subjected to the prerogative writ of judicial review. See: John Jet Tumwebaze Vs. Makerere University Council and 3 others, Civil Application No. 353 of 2005 per- Kasule, J, (as he then was). 20

In the instant case, since the nature of the Respondent as a public body is conceded, the real issue is whether the decision interdicting the Applicant is a public law decision and, therefore, amenable to judicial review, or it is a purely private law decision. Put differently, the issue is whether the decision of the Respondent is governed by public or private law principles.

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The law appears to be well settled that for judicial review purposes, aside from the requirement that the body under challenge must be a public body, the other requirement is that the subject matter under challenge must involve claims based on public law principles and not enforcement of private law rights. This view was articulated by learned Author, Ssekaana Musa, in his treatise, Public Law in East Africa at p. 36-7 (2009) cited with deference in Arua Kubala Park Operators and Market Vendors Cooperative Society Ltd Vs. Arua Municipal Council, Misc. Cause No. 003 of 2016 (Mubiru, J.). See also Mrs Anny Katabaazi Bwengye Vs. Uganda Christian University, Misc. Cause No. 268 of 15 2017 (Ssekaana, J.); Greater Busoga Sugarcane Growers Cooperative Union Vs. The Chairman Board of Directors Uganda Development Corporation & 3 Others, Misc. Application No. 129 of 2024 (Ssekaana, J.)

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From the authorities, it is clear that while public law system concerns the proper performance of public duties owed to the public by public bodies, private law is concerned with enforcement of private rights. It is, however, appreciated that some statutory duties imposed on public bodies may create private rights in favour of persons, and would thus be enforceable by ordinary actions. It is thus apposite that each court analyses the nature

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$5$ of the decision made by a public body to be able to tell whether it is classifiable under public or private law. It has been noted that the classification 'public law' and 'private law' are new concepts and ought to be used with caution although convenient for descriptive purposes- per Lord Wilberforce in Davy Vs. Spelthorne Borough Council [1934] 3 All **ER 278.** Thus to distinguish between the private from public law matters, 10 court must identify a feature or a combination of features which impose a public character or stamp on the act. See: Polar Housing and Regeneration Community Association Ltd Vs. Donoghue [2002] QB 48, at para 65 per Lord Woolf CJ. Therefore, to establish a public character of a matter, calls for an assessment of the nature of the power 15 and function exercised by the public body. The decision of the body has to have sufficient public element, flavor or character. See: R (Beer t/a Hammer Trout Farm) Vs. Hampshire Farmers' Markets Ltd [2004] 1 WLR 233, at pp. 240-241, per Dyson LJ. These persuasive views were 20 followed in Arua Kubala Park Operators and Market Vendors Cooperative Society Ltd Vs. Arua Municipal Council, Misc. Cause No. **003** of **2016** by my noble and learned brother with whom I agree.

By his arguments, learned counsel for the Respondent suggests that by moving this court, the Applicant seeks to enforce his private rights and, 25 therefore, ought to have filed an action in the Industrial Court.

Havelew. To start with, the Respondent being a Public University can only act within the laws governing it. The Respondent invoked the provisions of its Human Resources Manual to interdict the Applicant. Whereas this Court has not been availed a copy of the Manual, it is, however, stated in the letter of interdiction that, the glaring inconsistencies in the Applicant's academic 10 and other documents are deemed to constitute misconduct under the provisions of sections 15.1.2 (b), 15.1.2 (g), 15.1.2 (y), and 15.1.2 (aa) of the Manual. Those provisions deal with acts that bring the University into disrepute, perjury, falsification of records or documents, and making false 15 documents. These allegations certainly are of serious public concern. Although neither party addressed court on the law under which the Human Resource Manual was made, this court is aware that section 41 (d) and 72 (f) of the Act No. 7 of 2001 (supra) gives the University Council of Public Universities power to make statutes not inconsistent with the Act for the better carrying out of its functions. The statutes so made may 20 provide for procedure for staff appointment and the terms and conditions of service including discipline of staff, salary and retirement benefits of members of all categories of staff. Section 52 of the Act provides for the appointment of staff of the University on terms and conditions to be 25 determined by the University Council. Section 53 provides for election of the Dean of the faculty by its academic staff from among its senior members. Where a faculty is established for the first time, the Vice

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$\mathsf{S}$ Chancellor appoints the Dean who holds office for two years after which he/she shall be elected for a four year term and eligible for re-election for one more consecutive term. The University Council is created under section 38 of the Act and under section 40, the Council shall be the supreme organ of a Public University. Under section 40 (2) of the Act, the Council, among others, is responsible for the direction of the academic, 10 financial and academic affairs of the University. The Council also formulates general policy of a Public University. I am therefore, of the opinion that the Human Resource Manual of the Respondent was made in the exercise of the Council's mandate under the Act. As noted in its letter, the interdiction was to pave way for investigations. Whether the 15 interdiction was done correctly or not, goes to the merit. It suffices that by the interdiction, the Respondent was not purporting that the Applicant was guilty of the alleged breaches. That explains why the interdiction letter states that the alleged acts are deemed to constitute misconduct. The Applicant, however, challenges the interdiction, contending, it was by Top 20 Management of the Respondent, and thus illegal, irrational, procedurally improper, ultravires, null and void. He also seeks for the quashing of the decision. I must observe that these are not private law remedies. However, prima facie, the Applicant does not show in his pleading whom he expected to interdict him given he seeks to impugn the Respondent's Top 25 Management decision. The Applicant also seeks an order of prohibition

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stopping the Respondent from implementing the Interdiction or taking

$5$ further action in the matter. Considering the pleadings and prayers, the rival arguments, and the law under which the Respondent acted, I am of the view that, by interdicting the Applicant, the Respondent was exercising public law powers and not seeking to invoke and enforce any contract provision. I do not think by the present action, the Applicant purports to 10 enforce any contract provision in the strict sense as he does not allege any contract breach by the Respondent. The Applicant simply avers that the Respondent illegally constituted the Top Management and thus acted ultravires. Whereas most of his claims are public law claims, I have noted that the Applicant makes and additional prayer for award of exemplary and punitive damages, which I find quite off the limits as such prayers are $15$ not appropriate in judicial review. See: *Uganda Revenue Authority Vs.* Wanume David Kitamirike, Civil Appeal No. 43 of 2010 (COA), per lead Judgment of Remmy K. Kasule, J. A. Be that as it may, the extraneous prayers, in my opinion, can not deprive the matter of its public law character. Considering the matter in totality, I am satisfied that the 20 Applicant's case meets the public law threshold. I thus hold that the decision of the Respondent interdicting the Applicant was of public law nature. As to whether it is proper to challenge ones' interdiction which is a notorious precursor to an investigation and a fair hearing, that is a matter for the merits of this application. The preliminary objection is 25 without merit and I accordingly over-rule it.

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$5$ Having over-ruled the preliminary objection, this court would ordinarily proceed to consider the merits of the Cause. However, although not addressed, I have reviewed the motion and the material presented by the Applicant. The Applicant drew court's attention to the fact that following his interdiction, the Respondent's Appointments Board invited him for a 10 hearing which he did not attend, and after its deliberations, the Board dismissed the Applicant from service of the University on 1^st February, 2024. In the circumstances, therefore, I am of the considered opinion that the challenged interdiction no longer exist as that phase has been subsumed by the dismissal decision. Aware that all the prayers sought in the instant motion were intended to stop other processes from being 15 furthered following the interdiction, I find that the Application and the prayers therein are overtaken by the event, and moot. To demonstrate, the prayer of a declaration that the interdiction is ultravires, null and void, and that a certiorari issues quashing it, would not be available, on the merits, if court were to agree with the Applicant, since the interdiction is 20 non-existent. Similarly, the prayer of mandamus to compel the Respondent to vacate the interdiction, and the prayer that court reinstates the Applicant on full salary and payment of the arrears, are moot. Similarly purporting to challenge the Top Management decision to interdict the Applicant, would serve no practical purpose, in the circumstances. It is 25 thus judicially uneconomical to consider the merits of the Application. The best thing the Applicant ought to have done was to withdraw the

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application challenging the interdiction, as soon as he received the $\mathsf{S}$ dismissal letter. Having not exercised the option, the doctrine of mootness has kicked in. The doctrine is that courts do not decide cases for academic purposes because its orders must have practical effect and be capable of enforcement. See: Environmental Action Network Ltd Vs. Joseph 10 Eryau, Court of Appeal Civil Application No. 98 of 2008; Julius

Maganda Vs. NRM, HCMA No. 154 of 2010 (Musota, J. as he then was).

In Pine Pharmacy Ltd & 8 Others Vs. National Drug Authority, Misc. Cause No. 0142 of 2016, Musota, J (as he then was) cited the persuasive Canadian case of Joseph Borowski Vs. Attorney General of **Canada (1989) 1 S. C. R** in which it was stated, inter alia, thus:

"The doctrine of mootness is part of a general policy that a court may decline to decide a case which raises merely a hypothetical or abstract question. An appeal is moot when a decision will not have the effect of resolving some controversy affecting or potentially affecting the rights of the parties. Such a live controversy must be present not only when the action or proceeding is commenced but also when the court is called upon to reach a decision. Accordingly, if subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present

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live controversy exists which affects the rights of the parties, the case $\mathsf{S}$ is said to be moot."

The doctrine of mootness have been considered in several decisions in this territory and at the East African Court of Justice. See: Mwiru Paul Vs. National Council for Higher Education and 2 Others, Civil Appeal No. 84 of 2016 (COA) (per Monica K. Mugenyi, J. A, as she then was); Legal Brains Trust Ltd Vs. Attorney General of Uganda, EACJ Appeal No. 4 of 2012; Justice Okumu Wengi Vs. Attorney General (2007) 600 KaLR; Male H. Mabirizi K. Kiwanuka Vs. the Kabaka of Buganda, Civil Application No. 0257 of 2017 (COA) (Per Night Tuhaise, J. A., as 15 she then was); Patricia Mutesi Vs. Attorney General, Misc. Cause No.

**241 of 2016** (Bashaija, J.)

For the reason of mootness, I decline to consider the merits of the Application, and accordingly dismiss it. Each party shall bear its own costs since the dismissal is on a ground not argued by the parties but taken up 20 by court on the basis of the information placed before it by the Applicant. In Phillips Vs. Copping [1935] 1 KB 15, at p. 21 it was opined by Scrutton L. J thus, "but it is the duty of the court when asked to give a judgment which is contrary to a statute to take the point although 25 **the litigants may not take it.**" I note that mootness is not rooted in any

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statutory law but it is part of our court policy and I was impelled to take $\mathsf{S}$ up the point given the disclosure by the Applicant.

It is so ordered.

Dated, signed and delivered via email this 27^th May, 2024.

## Haros George Okello **JUDGE HIGH COURT**

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Ruling delivered to the parties via e-mail the emails below:

kafsalex@yahoo.com; okecham@gmail.com counsel for the Respondent

MUYANJA@GMAIL. COM, counsel for the Applicant 20