THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

CIVIL DIVISION

MISCELLANEOUS CAUSE NO.268 OF 2017

1. BAKULUMPAGI DANIEL
2. NABAGEREKA GRACE MUSOKE
3. MUNYEGERA MOSES
GODFREY }=============== APPLICANTS
4. KAUMA JOAN BRENDA
5. KABUYE GEOFFREY
6. STEVEN KIBISI
-VERSUS-
1. UGANDA NATIONAL BUREAU OF STANDARDS
2. NATIONAL STANDARDS COUNCIL }======
RESPONDENTS
3. CHIEF EXECUTIVE DIRECTOR

BEFORE HON. JUSTICE SSEKAANA MUSA

RULING

The Applicant filed an application under Section 36 of the

Judicature Act as amended, Rules 3(1)(a), 5 & 6 of the Judicature
(Judicial Review) Rules, 2009 for the following reliefs;

a) A declaration that the audit report, its compilation and the

disciplinary proceedings conducted by the 1st Respondent

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 and all actions taken thereunder were done improperly and
without due recourse to the law.

b) A writ of certiorari doth issue quashing the audit report and

all the decisions/recommendations made arising from it.

c) A writ of certiorari doth issue quashing the findings of the

disciplinary committee proceedings in as far as the said
proceedings were unlawfully conducted by one Jackson
Mubangizi who had no legal mandate to conduct the same
whatsoever.

d) A Writ of mandamus doth issue compelling the 2 nd

Respondent to reinstate the Applicants as full employees as
inspectors in the 1st Respondent organisation.

e) A writ of prohibition doth issue prohibiting the 2 nd

Respondent and the National Council of Standards of the 1 st
Respondent from implementing any recommendations
based on the Disciplinary proceedings conducted in respect
of the Applicants.

f) An injunction doth issue restraining the Respondents jointly

and severally from terminating the employment services
premised on the findings or recommendations of an
unlawfully constituted disciplinary committee.

g) An order for general and exemplary damages.

h) Costs of the Application be provided for.

The grounds in support of this application were stated briefly in

the Notice of Motion and in the affidavits in support of the
applicant but generally and briefly state that;

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1) The decision of lifting the applicants suspension by calling
them back to work and yet maintain them on half pay was
tainted with illegality and irrationality in as far as the said
suspension exceeded one month period contrary to the
provisions of Section 63 of Employment Act of 2006.

2) That the decision by the 1st respondent to subject the

applicant to an indefinite suspension or interdiction was
tainted with illegality and irrationality in as far as the
decision of calling the applicant’s back to work bore the
necessary implication of conclusion of investigations as well
as the end of any disciplinary proceedings whatsoever.

3) The disciplinary proceedings conducted on behalf of the 1 st

respondent by a one Jackson Mubangizi were illegal in as
far as the said Jackson Mubangizi did not hold any lawful
office or status in the respondent’s organisation at the time
he presided over the impugned disciplinary proceedings.

4) The decision of the 1st respondent in omitting or failing to

reinstate the applicant’s full salaries after calling her to
work as well as creating an apparent indefinite suspension
amount to continuous illegality for which the 1st respondent
ought to be compelled to act according to the law.

5) The decision to act or implement the findings of the

compliance report and the disciplinary committee which
were themselves conducted unlawfully and without due
regards to the applicants’ right to be heard as well as the
rules of natural justice shall inevitably result into an abuse
of powers and as such this highly probable outcome has to
be avoided by prohibition.

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The respondents opposed this application and they filed joint
affidavit in reply through Hellen Wenene a legal counsel to the
1st respondent conversant with all matters pertaining to this
application.

The respondents contended there was unprofessional conduct

of imports inspectors and this prompted them to carry out an
Audit Compliance report in January 2017. The said report
implicated all the applicants as being involved in the
unprofessional conduct of not following Imports inspection
procedures.

That following receipt of the complaints from the Deputy

Executive Director, the applicants were asked to submit
written explanations over their unprofessional conduct
exhibited in the Audit Compliance Report which they
submitted by 9th April 2017.

The 3rd respondent reviewed the explanations and on 8th May

2017, he constituted Disciplinary Committee to receive and
review defences of the applicants in accordance with UNBS
Human Resource Manual, 2014.

That by letters dated 8th May 2017, the applicants were

interdicted from office with half pay to pave way for
investigations for a period of one month starting 11 th May
2017 and ending 11th June 2017. The 3rd respondent
constituted Disciplinary Committee and asked the applicants
to submit written defences and invited them for hearings
between 7th June 2017 and 8th June 2017.

The 3rd respondent extended the investigatory suspension

period of the applicants by one month in order to allow the
conclusion of investigations.

That upon the conclusion of the investigations into the alleged

unprofessional misconduct, the applicants were recalled from

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investigatory suspension/interdiction by letters dated 5 th July
2017 and they were re-instated into their jobs.

That on 13th July 2017, the disciplinary Report for the

inspection of cases of unprofessional conduct was presented to
the management of the 1st respondent Management requested
that the investigations committee be strengthened and given
two more weeks to provide necessary information and/or data
to management and provide clarity on its recommendations
under section 8 of the Disciplinary Report.

That on 11th September 2017, the addendum to the

Disciplinary Report for the Inspection of cases of
unprofessional conduct was presented to the management of
the 1st respondent. At this meeting, it was clearly stated that
the management had upheld the earlier findings of the
Disciplinary Committee and the recommendations to be made
were based on the upheld findings and the addendum.

That at the time of filing this application, there is no decision

made by the 1st respondent to terminate or dismiss the
applicants. Accordingly there is no decision in the
circumstances of the instant case to merit grant of orders of
judicial review.

That if any decision were to be made in future in relation to

the employment of the applicants, the applicant’s remedy
would be to sue for damages for unlawful
dismissal/termination before the labour officer/industrial
court. Such a claim would not be by way of judicial review
which is a preserve of cases where the aggrieved party has no
alternative remedy.

That the general public believes that there is rampant

corruption at the 1st respondent that is contributing to the
importation into Uganda of substandard products. The 1st
respondent’s Audit Compliance report of 2017, the
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 Disciplinary Committee hearings and its recommendations are
focused at correcting the problem. It is therefore of natural
importance and in the interest of justice that the 1 st
Respondent is given an opportunity to complete the
disciplinary process to address this problem.

At the hearing of this application the parties were advised to file

written submissions which I have had the occasion of reading
and consider in the determination of this application.

Three issues were framed by the applicant for court’s

determination;

(1) Whether the case is a proper case for Judicial Review?

(2) Whether the decisions of the first respondent followed
the correct procedure and were arrived at in accordance
with the law?
(3) Whether the Applicants are entitled to the remedies
sought?
I shall resolve this application in the order of the issues so raised
but the respondents’ counsel has raised some preliminary
objections which will have to be addressed first. The applicants
were represented by Ms Claire Amanya and Nuwasasira Horae
whereas the respondents were represented by MMAKS
Advocates.

Preliminary Objections

Whether the Application as filed discloses a cause of action

as against the 2nd and 3rd Respondents

The 2nd Respondent is established under Section 4 of the Uganda

National Bureau of Standards Act, Cap 327 (the “Act”) with
functions inter alia to declare standard specifications,
certification marks and codes of practice, conduct general
administration of the 1st Respondent, formulate and carry out the
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policies of the 1st Respondent and is empowered to do all things
necessary for carrying into effect the provisions and purposes of
the Act.

Whilst the 2nd Respondent is the governing body of the 1 st

Respondent, it has no legal capacity to sue or be sued. If
Parliament intended so, it should have clearly stipulated so. On
the contrary, Section 2 (2) of the Act establishes that 1 st
Respondent as a body corporate with perpetual succession and a
common seal, which can sue or be sued in its corporate name.
The liabilities and obligations of the 2 nd Respondent are all
imputed on the 1st Respondent. This is because the Applicants
were employed by the 1st Respondent and not the 2nd
Respondent. The inclusion of the 2nd Respondent as a party to
this suit was unnecessary, erroneous and misplaced. We
therefore pray that the 2nd Respondent is struck off this suit with
costs.

The Applicants were employed by the 1st Respondent and their

contracts of employment were executed with the 1 st Respondent.
The disciplinary proceedings from which the instant Application
arose were being conducted by the 1st Respondent, the 2nd
Respondent only being an agent of the 1st Respondent, a fact
known to all the Applicants. On this basis, the 2 nd Respondent
should be struck of this Application with costs.

The respondent’s counsel objected to the inclusion of the 3 rd

Respondent as a party to this Application. The office of the 3 rd
Respondent, the “Executive Director” of the 1st Respondent is
established under Section 11 of the Act. Section 14A of the Act
as amended provides thus;

“14A Immunity of officials.”

A suit, prosecution or other legal proceedings shall not

be brought against the Director, a member of the
council, a member of staff or an inspector and any
other official in their capacity for anything done in
good faith under this Act”

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He submitted that the Applicants have not anywhere in their
Affidavits pleaded any particulars of bad faith as against the 3 rd
Respondent. This a fatal omission that cannot be remedied by
submissions of Counsel for the Applicants. When Justice
Stephen Musota considered a similar provision, Section 48 of
the Financial Institutions Act, in the case of Amandua & Ors v
Bank of Uganda & Anor; Civil Suit No. 395 of 2006, he held
thus;

“As rightly submitted by learned counsel for the

defendant, the plaintiffs did not plead bad faith in their
plaint nor did they prove that whatever the 1 st
defendant did was done in bad faith.

In Mwesigwa & Another Vs Bank of Uganda HCCS

No. 588 of 2003 (Bamwine J.) (as he then was) held
inter alia that:

“Under S.49 of the Statute, no suit shall

lie against the Bank of Uganda or any
of its officers for anything which is
done or intended in good faith pursuant
to the provisions of the statute.
Accordingly Bank of Uganda is
protected against suits arising out of
seizures of Financial Institutions unless
the aggrieved party is able to show that
what the Bank of Uganda did was not in
good faith.”

Consequently I will find that in view of the reasons I

have given herein above, I agree with the submissions
by learned counsel for the defendant that the plaintiffs
have no valid claim against Bank of Uganda. I will find
issue 1 in the negative.”

According to counsel since the Applicants have not proved any

bad faith in the actions of the 3 rd Respondent, his inclusion as a
party to this Suit is estopped by Section 14A of the Act and has
no basis in law.
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In any event, the Applicants were employed by the 1 st
Respondent and not the 3rd Respondent. The actions of the 3rd
Respondent, if any, are those of an agent of a disclosed principal,
the 1st Respondent, who is already a party to this suit. It was
there submission that the 3rd Respondent was unlawfully and/or
unnecessarily added to this Suit and should be struck off with
costs.

The applicants counsel contended that the Council can be sued

under section 8(1) of the Uganda National Bureau of Standards
Act as the general governing body for the 1st respondent.

In respect of the 3rd respondent, the applicants counsel

submitted that, the 3rd respondent can be sued for actions or
omissions done in malafide. According to counsel the decision to
dismiss the applicants shows malafide intent and arbitrary
exercise of power.

It should be noted that the nature of proceedings for judicial

review remedies sometimes be sought where some specific
remedies can be made for the aggrieved persons i.e declarations
against the specific entities.

It is sometimes acceptable to join the decision maker in order to

clarify to the court their decision or the decision making process
which is the subject of challenge or to enable the court given
specific declarations in order to avoid condemning such decision
maker unheard.

In the present case the applicants are seeking for an Order of

Mandamus to compel the 2nd respondent or the 3rd respondent to
reinstate the applicants as full employees as inspectors in the 1 st
respondent organisation.

The nature of such order being sought warrants the addition 2 nd

and 3rd respondent in order to give clear orders to the concerned
bodies or office holders. Otherwise sometimes the judicial review

9
orders may be given omnibus without any specific directive by
court to any specific decision maker and may be misdirected and
hence not complied with.

The 2nd and 3rd respondents were properly joined to the judicial
review proceedings.

Whether the Application is properly before the Court

without an affidavit in Support

This Application was filed on 14th September 2018, being

supported by the undated Affidavit of Irene Nakagya. By a letter
dated 22nd September 2017, the 2nd Applicant unequivocally
denied involvement in this Application and stated that her
signature was forged. The said uncontroverted evidence of
forgery being in respect of the Affidavits in Support of the
Applications for the Interim Order, Temporary Injunction and
Judicial Review.

Copies of Nakagya Irene’s letters dated 22nd September 2017,

25th September 2017 and printed telephone messages between
Nakagya Irene and Ms. Claire Amanya, Counsel for the
Applicants are attached to the Affidavit in Reply as “A (i),” “A
(ii)”and “A (iii)” respectively.

In the telephone messages referred to above, Counsel for the

Applicants in retaliation unprofessionally called Irene Nakagya a
“snake, Judas Iscariot, betrayer, traitor, enemy of
progress”. Subsequently, by a letter dated 12 th October 2017,
Counsel for the Applicants requested Court to disregard Irene’s
evidence and strike out her Affidavit in Support of the
Application.
Nakagya Irene deponed a Supplementary Affidavit filed in this
Court on 19th February 2018 to set the record straight. She
averred that the Affidavits in Support of this Application was
neither written by herself nor shown to her before it was filed at
Court.

The respondent’s counsel submitted that the instant Application

is not supported by an Affidavit in Support and cannot stand in
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law. In the case of Kasaala Growers Co-operative Society v
Kakooza Johathan & Anor, Supreme Court Civil Application
No. 19 of 2010, their Lordships held thus;

“I do agree with what this court had stated in Banco Arabe

Espanal - vs. - BOU, Civil Appeal No. 8 of 1998, that;

“-- - - - - a general trend is towards taking a liberal approach in

dealing with defective affidavits. This is in line with the
Constitutional directive enacted in article 126 of the Constitution
that courts should administer substantive justice without undue
regard to technicalities Rules of Procedure should be used as
handmaiden of justice but not to defeat it.”

However, a distinction must be drawn between a defective

affidavit and failure to comply with a statutory requirement. A
defective affidavit is, for example, where the deponent did not
sign or date the affidavit. Failure to comply with a statutory
requirement is where a requirement of a statute is not complied
with. In my view, the latter is fatal.”

He submitted that the absence of an Affidavit in Support to the

instant Application is fatal as opposed to being a mere
technicality. The Supplementary Affidavits filed by the other
Applicants herein cannot supplement a non - existent Affidavit in
Support.

In the case of Kasaala Growers Co-operative Society v

Kakooza Johathan & Anor (Supra), the Court concluded that
once the Affidavit in Support was struck out, the Application was
left without the requisite supporting Affidavit and was thereby
rendered incompetent. He submitted that the instant Application
is incompetent for not being supported by an Affidavit in Support
and should be struck out with costs.

The applicant contended that the application was supported by

supplementary affidavits of the other applicants since the said
Nakagya never swore her affidavit in a representative capacity
and therefore the absence of her affidavit does not affect the rest

11
of the applicants who each swore an affidavit (Supplementary) in
support of the application.

The absence of an affidavit does not necessarily render an

application incompetent as counsel for the respondent has
submitted. It may only affect it to the extent of the evidence but
the application can stand on grounds of law which may not need
any evidence to support them. See Odongkara v Kamanda [1968]
EA 210 or [1971] HCB 156

In the present application, it is clear all the applicants have

sworn affidavits in support (Supplementary) and the respondents
indeed replied to the said supplementary affidavits. Therefore
the application is properly before the court.
Secondly the said Nakagya does not deny signing except that she
is merely contending that she never appeared before a
commissioner for oaths or never signed in the presence of a
commissioner for oaths.
What she alleges in paragraph 6 of her supplementary affidavit
as a forgery is very suspect and it appears she stated that in the
internal memo in order to save her employment or betray the
cause of the rest.

The application was filed on 14 th September 2017 and yet the

internal memo is dated 22th September 2017. Indeed the lawyer
noted on her letter dated 25th September 2017, “at the time of
filing documents on 14th/09/2017, you had not withdrawn
instructions”.
This court is satisfied on a balance of probabilities that she
executed the said affidavit and her signature was never forged as
she wanted this court to believe.

Whether the case is a proper case for Judicial Review?

The applicants counsel submitted that this is an application for

Judicial Review brought by a Notice of Motion brought under
Rules 3 and 6 of the Judicature (Judicial Review Rules) S.I No. 11
of 2009, Sections 36 and 38 of the Judicature Act, Cap 13 Laws
of Uganda, Article 42 of the Constitution of the Republic of
Uganda.
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According to the Black’s Law Dictionary at page 852, judicial
review is defined as a court’s power to review the actions of
other branches or levels of government; especially the court’s
power to invalidate legislative and executive actions as being
unconstitutional. Secondly, a court’s review of a lower court’s or
administrative body’s factual or legal findings.

In Uganda, the relevant laws pertaining the subject of judicial

review are; the Constitution, the Judicature Act Cap 13 and the
Judicature (Judicial Review) Rules 11/2009.
In Ridge v Baldwin [1964] AC 40, it was held that a decision
reached in violation of the principles of natural justice especially
one relating to the right to be heard is void and unlawful.

The applicant contend that they are seeking remedies set out
under the Judicature Act are the remedies that are prayed for in
this application and therefore this is a proper application for
judicial review.

The respondents counsel submitted that this matter concerns

private rights and they have cited the case of Commissioner of
Land v Kunste Hotel Ltd [1995-1998] 1 EA (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 is being
subjected.”

The Applicants contend that this Application is premised on the

1st Respondent’s decision contained in its letter of 13 th
September 2017. The said letter informed each of the Applicants
that Management of the 1st Respondent (the “Management”) had
received the disciplinary report from the Disciplinary Committee
and upon discussions resolved that they were in breach of the
Human Resource and Procedures Manual 2014. In this letter, it
also stated that the matter is forwarded to the 2 nd Respondent for
further management and the Applicants are requested to vacate
13
their offices until the 2nd Respondent pronounces itself on the
matter.

The said letter emanated from the Management meeting of 11 th

September 2017, where Management deliberated on the
recommendations of the Disciplinary Committee on each of the
Applicants and made resolutions on whether or not have the
Applicants dismissed.

The 2nd Respondent, being the governing body of the 1 st

Respondent has never made a decision on whether the
Applicants should be dismissed or reinstituted in their positions.
The 2nd Respondent was estopped from making a decision by an
exparte Interim Order of 23rd September 2017 issued on appeal
by this Court.

The Applicants are therefore still employees of the 1 st

Respondent who are still receiving salary, a fact admitted by the
Applicants in their submission.

It was their submission that since the 1 st Respondent has never

made a decision in the circumstances of the instant case to merit
grant of orders of Judicial Review. The recommendations of the
Disciplinary Committee and resolutions of Management of the 1 st
Respondent cannot form basis for an action in judicial review
proceedings. The said recommendations and resolutions are not
binding on the 2nd Respondent, which is the governing body of
the 1st Respondent and makes the final decisions on behalf of the
1st Respondent.

In the case of Wakiso Transporters Tour & Travel Ltd & 5

Others vs Inspector General of Government & 3 Others;
Misc. Cause No. 53 of 2010, Court held that;

“This case yet again raises the issue as to whether or not these
findings, recommendations, suggestions and observations as
opposed to decisions can be a subject of the prerogative orders
of certiorari. In the case of DOTT SERVICES LTD Vs ATTORNEY
GENERAL AND AUDITOR GENERAL (Misc Cause No. 125 of

14
2009) (unreported) the Hon. Justice V.F Musoke Kibuuka
discussed the distinction and held as follows:-

“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 the instant application the report of the 2 nd
respondent against which the prerogative order is being sought
clearly contains no decision that can be quashed by way of
issuance of certiorari...........” (emphasis added)

Similarly, in the case of Akombe Gildon & Anor vs Uganda

National Examinations Board, Misc. Cause No. 72 of 2015;
this Honourable Court held thus;
“In the result, whereas the Respondent had the Minister’s
authority to withhold the results, as she did, there is at the
moment no definite decision on the part of the Minister of
Education, on the basis of which this application can be
considered on the orders sought”

In light of the above authorities, we submit that the instant

Application is grossly premature. The letter of 13 th September
2017 does not contain a definite decision on the fate of the
Applicants’ employment and the resolutions of the Management
and recommendations of the Disciplinary Committee cannot
sustain an action in Judicial Review.

The fate of the Applications was to be determined by the 2 nd

Respondents as clearly set out in the said letter. The Interim
Order issued in this matter injunct the 2nd Respondent from
making a decision that would be amenable to judicial review.
Therefore the instant application is premature and not a proper
case for judicial review and should be struck out with costs.

The respondents’ counsel contends that the substance of the

claims herein and the remedies sought by the Applicants are
issues which are a preserve of the labour office and/or Industrial
Court, the issue of the unlimited jurisdiction of the High Court
being immaterial.

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Section 93 (1) of the Employment Act provides that the only
remedy available to a person who claims an infringement of any
of the rights granted under this Act is by way of complaint to a
Labour Officer. This position was reiterated by the Supreme
Court in 2010 Former Employees of G4S Security Services
Uganda Ltd v G4S Security Services Uganda Ltd, SCCA No.
18 of 2010.

In Uganda Broad Casting Co-operation v Ruthura Agaba

Kamukama, Misc. Application No. 638 of 2014, Hon. Justice
Stephen Musota held that;

“Much as this Court (High Court) has unlimited jurisdiction, if

one looks at the intention of Parliament in conferring jurisdiction
on the Labour Officer and the creation and operationalization of
the Industrial Court with appellate jurisdiction it would be
prudent if these two institutions are put to good use. This is our
current court policy. Avoiding these institutions would be
defeating the intentions of the legislature since the Industrial
Court is now operational. I find it proper to refer this matter to
the Labour Officer for appropriate handling.”

The respondent’s counsel submitted that this application, being a

disguised labour complaint, ought to have been filed before the
Labour Office and not before this Honorable Court by Judicial
Review. This Court has rejected such Applications for being an
abuse of Court process. In Catherine Amal v Equal
Opportunities Commission, HCMA No. 233 of 2016; Hon.
Lady Justice H. Wolayo held that;

“In effect, the applicant wants this court to believe that her
failure to attend the disciplinary proceedings and the decision to
terminate her employment contract give rise to two distinct
causes of action. I am of a contrary view because her dismissal
from employment is what gives her a cause of action is remedied
by ordinary suit and not by judicial review. Her failure to attend
the proceedings forms part of the evidence in a suit for wrongful
dismissal but does not give rise to a possible remedy in judicial
review. The non-attendance of disciplinary proceedings and the
final decision are closely interlinked.
16
This point was considered by Hon. Justice Y. Bamwine as he then
was in Miscellaneous Cause No. 93 of 2009 Machacha
Livingstone and anor v LDC where the applicants were
dismissed from employment and complained that they were not
heard. The court held that the applicants did not show lack of an
alternative remedy or that the alternative remedy was ineffective
whereupon the application for judicial review was dismissed.

Prerogative orders will only issue where there is no alternative

remedy and the applicant has one. In the premises the first issue
is answered in the negative. This issue disposes of the
application and I need not belabor the remaining two issues. This
application is accordingly dismissed with costs to the
Respondent.”

In reliance on the above authorities, the Applicants’ alternative

remedy for the alleged unlawful termination/dismissal was not
only available but also very effective. In the case of Microcare
Insurance Limited vs Uganda Insurance Commission; Misc.
Application No. 218 of 2009; Justice Yorokamu Bamwine held
thus;
“From the authorities also prerogative orders, like mandamus
sought herein, are available to an Applicant who demonstrates:

A clear legal right and a corresponding duty in the respondent;

That some specific act or thing, which the law requires a
particular officer or body to do has been omitted to be done; or
Lack of an alternative remedy; or
Whether the alternative remedy exists but is inconvenient. Less
beneficial, less effective or less effective”
(Oil Seeds (U) Ltd vs Chris Kassami (Secretary to the
Treasury) HCMA NO. 136 of 2008)
…when all is said and done, I find that the Applicant has not
demonstrated lack of an alternative remedy. They have not
shown that any such remedy as exists herein is inconvenient, less
beneficial or less effective…

…I should perhaps add that it is becoming increasingly

fashionable these days to seek judicial review orders even in the
17
clearest cases where alternative procedures are more
convenient. This trend is undesirable and must be checked. I
uphold the second objection and order as I should that as a
matter of law, the Applicant first pursues the statutory remedy of
appeal availed to it under Section 32 (4) of the Act against the
Respondent’s refusal to grant it a license. Otherwise, the
Applicant must fail for this reason on account of being premature
in law and it fails. It is accordingly struck out.

In light of the above authorities, the respondents contend that

the Applicants’ claims of unlawful dismissal/termination, orders
of payment of salary arrears, reinstatement into their jobs,
terminal benefits, gratuity, general, exemplary and punitive
damages, which are expressly denied by the 1st Respondent,
could be a basis for a labour complaint before a Labour
Officer/Industrial Court and not an action for judicial review.

The Applicants have not shown that the alternative remedy as

exists herein is inconvenient, less beneficial or less effective. In
fact, the Industrial Court has been fully operational since 2014
and judicial notice has been taken of its expeditious disposal of
labour claims, such as those sought by the Applicants in this
Application.

The respondents prayed that the entire Application be struck out

with costs for being premature, an abuse of Court process and
not being a proper case for Judicial Review.

Additionally, at page 17 of the Applications’ submission, it is

submitted that the Applicants’ appeals against the 1 st
Respondent’s alleged decision are still pending determination by
the 1st Respondent. The Applicants, without awaiting the
outcome of the alleged appeals, rushed to this Court to seek
prerogative remedies.

The main issue of contention is whether there was a decision

made by the respondent to the applicants to warrant an
application for judicial review.
According to the applicants in their application before the court
is that they are challenging the actions respondents lifting their
18
suspension bay calling them back to work and yet maintain them
on half pay.
The applicants are challenging the 1st respondent decision of
subjecting them to an indefinite suspension or interdiction and to
them this is an illegality or irrational in as far as the decision
calling them back bore the necessary implication of conclusion of
investigations as well as the end to any disciplinary proceedings.

They are also challenging the legality of disciplinary proceedings

conducted on behalf of the 1st respondent by a one Jackson
Mubangizi who never held any lawful office or status in the 1 st
respondent organisation.
The applicants are challenging the decision of the 1 st respondent
in omitting or failing to reinstate them to their full salaries after
calling them back to work as well as creating an indefinite
suspension which is an illegality.

The respondents further challenge the decision to act or

implement the findings of the compliance report and the
disciplinary committee which themselves were conducted
unlawfully and without due regards to the applicants right to be
heard as well as the rules of natural justice which shall result in
an abuse of power.
The above grounds are clearly within the purview of judicial
review and they do not in any way transcend into the law of
Employment in order for the dispute to become an employment
dispute so as to qualify to be handled by the labour officer or
industrial court.

It is true the resultant decision once taken will end up as a

labour dispute but the current dispute is to challenge the
decision making process that will lead to the determination of
this judicial review.

The argument by counsel for the respondent that there is no

decision for judicial review is totally misconceived and devoid of
merit.

The issue of whether there is an alternative remedy will also

arise after the final decision is made but in the interim the
19
applicant is entitled to challenge the decision making process
before the resultant decision.

In Uganda, the principles governing Judicial Review are well

settled. Judicial review is not concerned with the decision in
issue but with the decision making process through which the
decision was made. It is rather concerned with the courts’
supervisory jurisdiction to check and control the exercise of
power by those in Public offices or person/bodies exercising
quasi-judicial functions by the granting of Prerogative orders as
the case my fall. It is pertinent to note that the orders sought
under Judicial Review do not determine private rights. The said
orders are discretionary in nature and court is at liberty to grant
them depending on the circumstances of the case where there
has been violation of the principles of natural Justice. The
purpose is to ensure that the individual is given fair treatment by
the authority to which he/she has been subjected to. See; John
Jet Tumwebaze vs Makerere University Council & 2 Others
Misc Cause No. 353 of 2005, DOTT Services Ltd vs
Attorney General Misc Cause No.125 of 2009, Balondemu
David vs The Law Development Centre Misc Cause No.61 of
2016.

For one to succeed under Judicial Review it trite law that he

must prove that the decision made was tainted either by;
illegality, irrationality or procedural impropriety.

The 1st respondent as a public body is subject to judicial review

to test the legality of its decisions if they affect the public.

Whether the decisions of the first respondent followed the

correct procedure and were arrived at in accordance with
the law.

In determining whether the decisions of the first respondent are

in accordance with the law, consideration must be made to the
three heads of Judicial Review. These were discussed in Misc.
20
Cause No. 46/2011 Alhaji Nasser Ntege Ssebagala v the
Executive Director KCCA, wherein it was observed that
Judicial Review controls administration under 3 heads namely;
Illegality, Irrationality and Procedural Impropriety.
ILLEGALITY

The elements of illegality in the actions of the 1 st respondent

were depicted by the management committee which made a
decision that the applicants be terminated from employment by
issuing termination letters dated 13th September 2017. According
to the UNBS Human Resource Manual, Clause 10.4 which
governs disciplinary hearings, section 10.4.c provides “having
heard from the employee and considering all the evidence the
disciplinary committee SHALL advice management on the
decision to be taken” and further under Section 10.4.d
“Management SHALL consider the disciplinary report from the
disciplinary committee and take appropriate action”

The disciplinary committee submitted its First REPORT FOR THE

IMPORTS INSEPCTION CASES OF UNPROFESSIONAL
CONDUCT (Attached and marked “G” on the Respondent’s
Affidavit in Reply) with recommendations to the Management
Committee that all the applicants be recalled and reinstated in
service but served with a written warning. The Management
ordered that fresh investigations be carried out upon which an
additional report- “ADDENDUM TO THE DISCIPLINARY
REPORT FOR THE IMPORT INSPECTION CASES OF
UNPROFESSIONAL CONDUCT” was produced. (Attached and
marked “I” on the Respondent’s Affidavit in Reply).

The Addendum maintained their earlier recommendations that

all the applicants be served with written warnings. The said
report was presented to the management committee meeting on
the 11th day of September 2017; however to the Applicants’
shock and dismay, the committee completely disregarded the
said recommendations and instead reached a decision to dismiss
the applicants.

Further, in the instant case, whereas all the Applicants appeared

before the Disciplinary Committee with their written defences,
21
none of them was ever allowed to interface with any of the
witnesses brought to testify against them for purposes of cross
examination. The Applicants were also never furnished with the
single most piece of evidence used to implicate them that is, the
Audit report of January 2017 authored by a one Leatitiah
Namubiru, prior to their appearance before the said disciplinary
Committee. The Disciplinary Committee’s report is clear that
each party was heard in absence of the other and more evident is
the fact that the evidence brought against the Applicants was
instead used by the disciplinary Committee to assess the
truthfulness of the Applicant’s defences which was grossly
unfair.

The Disciplinary Committee regarded the evidence brought

against the Applicants as truthful without questioning it’s the
authenticity and veracity especially in respect of the said Audit
Report of January 2017. It is further apparent that the author of
the said Audit Report Leatitiah Namubiru, did not testify
anything in regard to how it was generated yet it was the
principal document used to charge them with offences and
subject them to Disciplinary proceedings. In that regard it
remains strange how the said Audit Report was introduced to the
Disciplinary Committee without any witness presenting it. It is
also apparent that the said Audit report was supposed to be used
as a corroborative evidential document and not the basis of
proving the charges brought against the Applicant as was the
case. In that regard without any other evidence initial evidence
brought against the Applicants the said Audit Report was
rendered irrelevant and of no evidential value to implicate the
Applicants. Therefore, it is our submission that the proceedings
before the Disciplinary Committee were tilted against the
Applicants in as far as their liability seemed to be afore one
conclusion other than a question under inquiry. This was unfair
and contrary to the rules of natural justice.

The role of the Management Committee in the UNBS disciplinary

procedures is to receive the recommendations of the Disciplinary
Committee and take an appropriate action which action MUST
be forwarded to the 2nd Respondent for approval before
implementation by the 1st respondent. In this case, the 1st
22
respondent ordered the applicants to vacate office with
immediate effect which amounted to a dismissal from
employment, thereby implementing its own decision without the
approval of the 2nd respondent.
The applicants counsel contended that the Applicants were
entitled to sufficient disclosure and the right to cross-
examination is part and parcel of a fair hearing and in as far as
the same was denied to the Applicants, they were condemned
unfairly.

IRRATIONALITY:
Diplock J in the case of Council of Civil Service Union vs Minister
for Civil Service (supra) defined the element of irrationality as
follows:-
“By ‘irrationality’ I mean what can by now be succinctly referred
to as ‘Wednesbury unreasobleness’ enunciated in Associated
Provisional Picture Houses Ltd Wednesbury Corp [1947]2 ALL
ER 680, [1948]1 KB 223). It applies to a decision which is
outrageous in its defiance of logic or of accepted moral standards
that no sensible person who had applied his mind to the question
to be decided could have arrived at it. Whether a decision falls
within this category is a question that judges by their training
and experience should be well equipped to answer, or else there
would be something badly wrong with our Judicial System. To
justify the courts’ exercise of this role, resort I think today is no
longer needed to viscount Radliffs ingenious explanation in
Edwards (Inspector of Taxes) Vs Bairstow [1955]3 ALL ER
[1956] AC 14 of irrationality as a ground for court’s reversal of
a decision by ascribing it to an inferred though unidentifiable
mistake of law by the decision maker. ‘Irrationality’ by now can
stand on its own feet as an accepted ground on which a decision
may be attacked by Judicial Review.

The applicant’s counsel submitted that the Compliance Audit

Report, its compilation, the resultant disciplinary hearing and its
findings were done without due recourse to the law and was
therefore irrational. The main objective of the said audit was to
test the new systems put in place by the 1 st respondent and not
to assess individual performance.

23
The disciplinary committee report does not show any form of
evaluation subjected to the evidence brought to implicate the
applicants on the charges levelled against them. This is
especially in respect of the audit report, which was not examined
as to its authenticity and accuracy but was arbitrarily taken and
treated as a measure upon which the applicants’ evidence was
weighed. This clearly showed that the disciplinary committee
acted in disobedience of the rules applicable and made a decision
in bad faith. It is inevitable to infer that no reasonable tribunal
could have forfeited, neglected, failed or ignored to evaluate
evidence of one side and yet use that unscrutinised evidence to
assess the truthfulness of the evidence of the opposite side. The
disciplinary committee in so doing acted mala fide and as such
was unreasonable.

Secondly, the disciplinary committee did not consider the various

defences of the applicants as reiterated in their affidavit in
rejoinder sworn by the 1st Applicant. The common denominator of
the said defences was that the E-portal computer program used
to implicate them was a new system which was still prone to
errors and as such most of the discrepancies cited were as a
result of “system errors” other than human default. This was
even conceded to in the testimonies of both Letitiah Namubiru
and Andrew Othieno who were the key witnesses for the Bureau.

The applicants had further averred that most of the commodities

lacked standards under the standards manual 2016 and as such
could not be sampled or tested which explained the lack of action
for Bedcovers, 3 phase generator sets, porcelain tiles, used
Helmets, untreated mosquito nets, pneumatic tryres and worn
clothing.

The major default of the said Audit report was that it was a
“systems Audit” and not a “performance Audit”. Therefore, the
report mainly focused on how effective the system was coping
with the inspection requirements of the Bureau and not on how
well the Applicants were performing their duties. Therefore, the
issue of “personal performance” was extraneous to the said audit
report and as such the “Audit report” itself was an extraneous

24
matter is investigating and assessing the conduct and
performance of the Applicants.

Therefore in as far as the said “Audit report” was relied on as the

main piece of evidence against the Applicants; the disciplinary
committee took into consideration extraneous matters and as
such was “Unreasonable” within the Wednesbury principle.

In Baldwin & Francis Ltd Versus Patents Appeal Tribunal

And Others [1959]2 All ER 443 Lord Denning MR held that no
tribunal has any jurisdiction to be influenced by extraneous
considerations or to disregard vital matters. That this amounted
to acting in excess of jurisdiction which in turn amounted to an
error of law for the simple reason that the tribunal did not
determine according to law.

The audit was carried out solely by Laetitia Namubiru, an

employee of the 1st respondent who had just been recruited and
had not acquired sufficient training in the operations of the new
system. None of the applicants was interviewed on their
experience using the system and therefore were unable to
explain to the auditor the challenges and system failures that
were being experienced by themselves as supervisors and their
supervisees. The audit report is null and void in as far as it was
carried out solely by an inexperienced person and the applicants,
who are Inspection Supervisors were not given an opportunity to
be heard by the auditor and present viable explanations and
challenges that their respective work stations were facing.

This aspect of unreasonableness also renders the decision null

and avoid for being extraneous or in excess of jurisdiction.

PROCEDURAL IMPROPRIETY:
Lastly ‘procedural impropriety’ which is defined by Diplock as
follows:-
“I described the third head as ‘procedural impropriety’ rather
that failure to observed basic rules of natural or failure to act
with procedural fairness towards the person who will be affected
by the decision. This is because susceptibility to judicial review
under this head also covers also the failure by an administrative
25
tribunal to observe procedural rules that are expressly laid down
in the legislative instrument by which its jurisdiction is
conferred, even where such failure does not involve any denial of
natural justice……………”

It also covers non-observance of the Procedural rules in the

empowering legislation and its test is whether the duty to act
fairly and the right to be heard were observed. Articles 42 and
28 (1) of the Constitution provide for natural Justice in the
determination of the applicant’s rights. The non-observance of
the principles of natural justice renders the entire process a
nullity. The essence of procedural impropriety is the violation of
the Cardinal rules of natural justice “AUDI ALTERAM PARTEM”,
the right of a party to a cause not to be condemned unheard and
the rule against bias embodied in the Latin phrase “NEMO
JUDEX IN RE CAUSA SUA” which means “no man shall be a
judge in his own cause”.

The procedures contained in the Respondent’s Human Resource

Management Policies and Procedures Manual are not statutory
in nature but derive force from the prerogative powers of the 2 nd
and 3rd Respondents. As such compliance with the said
procedures is as much required as if the same were statutory.

According to section 10:2.7 of the Manual, a complaint is always

lodged by a Departmental Head upon completion of counseling
proceedings. In the instant case the complaint was lodged by the
Deputy Executive Director who for all intents and purposes had
no locus standi.

According to Section 10:6.1(c) 10:2(b), (c) and (d) of the

Respondent’s Human Resource Manual, the said complaint was
supposed to be reviewed by the internal Audit Department and
upon establishment of a prima facie case, an independent
investigative panel would be set up by the Management
committee. There was no indication that these procedures were
followed in respect of the complaints brought against the
Applicant.
The investigative suspension imposed on the Applicants on 8 th
May 2017 was lifted on 5th July 2017 and at that time the 3rd
26
Respondent referred to it as an “interdiction”. This was a period
of about 2 months.

Section 63(2) of the Employment Act prescribes a maximum

period of 4 weeks for an investigative suspension. And a punitive
suspension under section 62(4) of the Employment Act, 2006 is
for a duration of fifteen (15) days only. The Applicants were also
subjected to half salary pay since 8th May 2017, until to date
which is contrary to the provisions of section 63(1) of the said
Act.

On 5th July 2017, the 3rd Respondent lifted the interdiction or

suspension upon the Applicants pending the conclusion of
disciplinary proceedings. This was not only procedurally
contradictory but also enormously unfair to the Applicants in as
far as the said act prima facie indicated the closure of all
investigative and disciplinary measures against the Applicants,
and as such purported continuation of those Proceedings
amounted to a witch-hunt and was totally contrary to the letter
and spirit of sections 62 and 63 of the Employment Act, 2006.

Bias by the 1st respondent

In principle, bias is assessed on “Actual” bias where the decision
making body was influenced by partiality in reaching the
decision and “apparent bias” where the circumstances exist
which give reasonable apprehension or suspicion that the
decision making body may have been biased.

In the instant case, both “actual” and “apparent” bias is depicted

by the 1st respondent in their procedure followed to arrive at the
decision to dismiss the applicants from employment. Apparent
bias specifically by the management committee is illustrated in
the Special Management Meeting held on the 13 th day of July
2017 when the Disciplinary Committee were ordered to take an
additional two weeks for further investigations in the matter.
This points to the fact that the Management Committee expected
a rather different recommendation. (A copy of the minutes of this
meeting are attached and marked “H” on the Respondent’s
Affidavit in reply)

27
Actual bias in this matter is depicted by the Management
Committee when it disregarded the addendum Disciplinary
Committee report that recommended that the applicants be
served with written warnings. The Management committee relied
on extraneous matters such as the illegally conducted audit
report which clearly falls out of the matters to be considered by
the Management Committee in disciplinary actions as per the
UNBS human resource manual and therefore occasioned a
miscarriage of justice. Without stating clear reasons for doing so,
the Management Committee made the recommendation to
dismiss the applicants, which recommendation appears to have
considered matters that were extraneous to the Disciplinary
Committee report and recommendations. This shows that the
decision was pre-determined and the appointment of the
Disciplinary Committee was a mere formality.
In light of the foregoing, we submit that the decision made by the
Management Committee to order the applicant’s out office, is
tainted with both Actual and Apparent bias on the face of the
records, in as far as Management without any clear reason
passed resolutions contrary to what had been recommended by
the disciplinary committee. Further, bias is depicted in the
reliance on extraneous matters, not indicated in the disciplinary
report. We pray therefore that this Honourable Court, finds the
decision of the respondent, to be tainted with bias and therefore
null, void and of no legal consequence.

Right to be heard

This position was restated in Council of Civil Service Union v.

Minister for the Civil Service 1985 AC 374 held that it’s a
fundamental principle of natural justice that a decision which
affects the interests of any individual should not be taken until
that individual has been given an opportunity to state his or her
case and to rebut any allegations made against him or her.
In the applicants’ case, they were denied the right to be heard
during the carrying out of the Compliance Audit. The Auditor
didn’t accord the applicants the right to present their defences
and explanations to the inconsistences found at their work
stations. In case of Bwowe Ivan & Ors V Makerere
University Miscellaneous Cause No 252 and 265 of 2013
28
wherein Hon. Justice Benjamin Kabiito labored to explain the
universal principles of a fair hearing, he cited that the right to a
fair hearing imposes on decision making bodies the duty to
disclose all evidence and materials that are to be used against
the affected party and the obligation to give the party an
adequate opportunity to the affected party to rebut such
evidence and materials which may be done through cross
examination to test the truth and expose falsehoods of
accusations levelled against him or her.

First and foremost, the applicants were not availed with a copy of
the said audit report which raised the charges levied against
them and this was in violation of the right to have complete
disclosure of information to allow them adequately prepare and
make their defences. In the instant case, the Disciplinary
Committee and the Auditor did not give the applicants the right
to cross examine the complainant in the matter as well as the
auditor. The applicants prayed that the decision of the 1 st
respondent be quashed due to the fact that the applicant’s right
to a fair hearing was violated and as a result are null and void ab
initio.

The respondents counsel in reply submitted that at page 9 of the

Applicants’ submissions, it is claimed that the elements of
illegality in the actions of the 1st Respondent are contained in the
decision to terminate the Applicants by issuing dismissal letters
dated 13th September 2017. Clearly, the Applicants’ submission
is both misleading and misconceived. The letters dated 13 th
September 2017 are not dismissal letters by title and/or by
content.

The Applicants correctly submit at pages 9 and 10 of their

submissions that Clause 10.4 of the 1st Respondent’s Human
Resource and Procedures Manual, 2014 allows the 1st
Respondent to undertake disciplinary action against its
employees.
It was the submission of the respondent that the incidence of the
1st Respondent taking disciplinary action against its employees
cannot be said to be illegal and/or not authorized by law. In fact,
the Applicants’ submissions under the title “illegality” at pages 9
29
to 11 of their submissions are challenging the procedure
followed at the disciplinary hearings as opposed to confirming
that the 1st Respondent was not authorized by law to conduct the
disciplinary hearings.

The respondents submitted that the 1st Respondent was at all

material times authorized by law to conduct disciplinary
proceedings against the Applicants and this ground cannot be a
basis to sustain an action for judicial review. We accordingly
pray that this Application is struck out with costs.

The Applicants contend that there was procedural impropriety in

contravention of Articles 42 and 28 (1) of the 1995 Constitution
of the Republic of Uganda, Section 63 (2) of the Employment Act
and rules of natural justice in relation to the disciplinary
hearings conducted by the 1st Respondent and that accordingly
they were not given fair hearings.

The respondents submit that a disciplinary hearing need not

apply the strict procedures applied in a Court of law. The cases
of General Medical Council of Medical Education and
Registration of the United Kingdom vs Spackman (1943) 2
ALLER 337 and Caroline Karisa Gumisiriza vs Hima
Cement Limited H.C.C.S NO. 84 of 2015 both concluded that
a disciplinary committee need not follow the procedure as
applied in the Courts of law, but merely required that an
employee appearing before it, is given an opportunity to defend
him/herself without the requirement of the standards of a Court
of law.

In the case of Ebiju James v UMEME Ltd; H.C.C.S 133 of

2012, Her Lordship Justice Elizabeth Musoke put the matter
succinctly at page 7 of her Judgment wherein, in relation to the
right to be heard, she states thus;
“Such rights would include the right to respond to the allegations
against him orally and/or in writing, the right to be accompanied
at the hearing, and the right to cross-examine the defendant’s
witnesses or call witnesses of his own.”

30
As averred in paragraphs 6 to 14 of the Affidavit in Reply of
Hellen Wenene, the Human Resource Department of the 1 st
Respondent received a complaint from the Deputy Executive
Director dated 3rd April 2017 which alleged unprofessional
conduct of imports inspectors from various stations detected by
the Audit Compliance Report of January 2017 (the “Audit
Report”) (Annexure “C” to the
Respondent’s Affidavit in Reply).

The Applicants aver that such a complaint can only be made by a

Head of Department. They rely on Sections 10.2.1 and 10.5 (g)
and (h) of the 1st Respondent’s Human Resource and Procedures
Manual, 2014 (the “Manual”) in support of this submission. We
submit that this claim is clearly misconceived.

The respondents’ counsel contends that Section 10.2.1 of the

Manual contemplates disciplinary action being commenced by a
supervisor after counselling, which is not the case in the instant
Application. A clear reading of Section 10.5 (g) and (h) of the
Manual unmistakably shows that this Section only relates to
management of minor offences. Management of serious and
grave offences as those allegedly committed by the Applicants in
this the instant case is provided for under Section 10.6 as
opposed to Section 10.5 of the Manual as alleged. Section 10.6 of
the Manual does not specify the designation of the official
responsible for making complaints of this nature. We submit
therefore the Deputy Executive Director’s complaint was lawfully
and properly made.

The Audit Report referred to above implicated all the Applicants

as being involved in the unprofessional conduct which included
misdeclaration of inspected consignments, non-inspection of
consignments, deliberate non-charging of the 15% CIF
surcharge, testing fees and non-collection of samples, clearance
of a number of consignments by use of one CoC, selective
inspections, deliberate wrong categorization of consignments,
non-sampling of consignments from East African Community
(EAC) partner states, misuse of Pre-Verification of Conformity
(PVoC) exemption letters, delays in clearance of consignments,

31
non-inspection of groupage consignments and consignments
inspected and released for personal use.

Following receipt of the complaints from the 1 st Respondent’s

Deputy Executive Director, the Applicants were asked to submit
written explanations over their unprofessional conduct exhibited
in the Audit Compliance Report, which they submitted by 9th
April 2017.

The 3rd Respondent reviewed the explanations and on 8 th May

2017, he constituted a Disciplinary Committee to receive and
review the defenses of the Applicants. By letters dated 31st May
2017, the constituted Disciplinary Committee asked the
Applicants to submit written defenses and invited them to appear
before the Committee for hearings between 7th June 2017 and
8th June 2017. The copies of the 1st Respondent’s letters asking
the Applicants to submit written defences and inviting them for
disciplinary hearings are annexed to the Affidavit in Reply as “F
(i)” to “F (viii)”.

The Applicants duly submitted their written defenses and/or

explanations to the Committee. Copies of the written defenses
and/or explanations are annexed to the Applicant’s
supplementary witness statements. The Disciplinary Committee
also summoned Mr. John Paul Musimani, Mr. Andrew Othieno,
Ms. Leatitiah Namubiru, Ms. Innocent Namara, Mr. Matthias
Kaleebi and Mr. Allan Mugisha to appear before it on 19th June
2017 as witnesses in relation to the disciplinary hearings of the
Applicants.

The Applicants duly attended the disciplinary hearings whereat

the charges of unprofessional conduct were read over to them
and they were cross-examined. The Applicants also presented
their oral defences at the hearings.

In light of the foregoing, the Applications were adequately

informed of the allegations against them, seven (7) days before
the disciplinary hearing. The Applicants responded to the
allegations both in writing and orally at the hearings. Whilst the
Applicants claim that they were not furnished the Audit Report of
32
January 2017, nowhere in their written responses or the minutes
is it indicated that they requested for the said report and the
request was denied by the 1st Respondent.

Similarly, the Applicants never requested to cross-examine the

author of the Audit Report or the other witnesses called at the
hearings. These allegations in the Applicants’ submissions are
mere afterthoughts that cannot invalidate the disciplinary
proceedings conducted by the 1st Respondent against the
Applicants.

On the authority of the cases of General Medical Council of

Medical Education and Registration of the United
Kingdom vs Spackman (supra) and Caroline Karisa
Gumisiriza vs Hima Cement Limited (supra), the Applicants
were given an opportunity to defend themselves without the
requirement of the high procedural standards of a Court of law.

The extension of the suspension period was bonafide and done in

the interest of justice to all parties herein to ensure that the
Disciplinary Committee thoroughly carries out the investigations
and comes to just but not haste and unfounded conclusions.

The claims of bias are quite unfortunate. The Disciplinary

Committee evaluated the accusations against the Applicants, the
defenses presented by the Applicants and all the information
provided by the witnesses and made recommendations that were
presented separately for each of the Applicants.

On 13th July 2017, the Disciplinary Report was presented to the

Management of the 1st Respondent. Management requested that
the investigation committee be strengthened and given two (2)
more weeks to provide the necessary information and/or data to
Management and provide clarity on its recommendations under
Section 8 of the Disciplinary Report. This cannot be a basis for
“apparent bias” as alleged in the Applicant’s submissions.
Management is not bound by the recommendations of the
Disciplinary Committee and the claim that it disregarded some of
the recommendations of the Committee is evidence of “actual
bias” is misconceived.
33
It is also important to add that discrimination (although a total
non-starter in this case) cannot be a foundation for a cause of
action. The Applicants are party to individual and not to group
employment contracts and thus fall to be judged on compliance
or otherwise on those contracts on their own and without
reference to others. It follows from the above that this aspect of
the claim cannot form a basis of bias and must also fail.

The Applicants’ Counsel’s submission that some of the Applicants

who withdrew from this Application were promised
preferential treatment in return for betrayal of other
Applicants is not supported by any evidence on record. This is
an exceptional attempt by the Applicant’s Counsel to mislead this
Honourable Court.

The 1st Respondent followed the disciplinary procedures laid out

in its Manual and the laws of Uganda and accorded the
Applicants a fair hearing. In light of the foregoing, the claim that
the audit report, its compilation and disciplinary proceedings
conducted by the 1st Respondent and the actions taken
thereunder is tainted with procedural impropriety and without
due process is misconceived, without merit and should be
rejected.

The Claim that Eng. Jackson Mubangizi chaired the Disciplinary

Committee without holding a lawful office with the 1 st
Respondent is to the least malformed and to the most an attempt
to perpetuate another falsehood by the Applicants. Jackson was
employed by the 1st Respondent on 1st December 1998. His
employment was initially on permanent terms and is now on
contractual terms as averred in the uncontroverted evidence of
Hellen Wenene.
The 1st Respondent has not made any decision that is harsh and
arbitrary without following due process to merit judicial review.
This Application should therefore be struck out with costs.

On the facts at hand, the Applicants were all implicated as being

involved in the unprofessional conduct which included
misdeclaration of inspected consignments, non-inspection of
34
consignments, deliberate non-charging of the 15% CIF
surcharge, testing fees and non-collection of samples, clearance
of a number of consignments by use of one CoC, selective
inspections, deliberate wrong categorization of consignments,
non-sampling of consignments from East African Community
(EAC) partner states, misuse of Pre-Verification of Conformity
(PVoC) exemption letters, delays in clearance of consignments,
non-inspection of groupage consignments and consignments
inspected and released for personal use.

The 1st Respondent notified the Applicants about the allegations

against them, afforded them adequate time to prepare their
defences and an opportunity to be heard orally and in writing.
There is no irrationality in the actions the 1 st Respondent
undertook and this ground is also not available to the Applicants.

The submission that the Audit Report was not challenged but
taken as gospel truth is erroneous, the truth being that each of
the Applicant was allowed to ask to respond to the allegations in
the Report, to which they did. The Disciplinary Committee
evaluated findings of the Audit Report, the accusations against
each of the Applicants, the oral and written defenses presented
by the Applicants and all the information provided by the
witnesses and made findings that were presented separately for
each of the Applicants.

The Applicants contend that the accusations against the

Applicants were as a result of computer system errors and not
human default. Further that the Audit Report is null and void in
as far as it was solely conducted by an inexperienced employee
of the 1st Respondent without interviewing the Applicants about
the challenging of using the E-Portal Computer program. This
submission is clearly misconceived.

The Applicants who are well trained in the use of the E-portal
Computer program cannot blame system errors for their alleged
misconduct. In the event that the system was indeed prone to
some errors, which is denied, the Applicants have not adduced
any evidence to confirm that the system errors are the basis of
the allegations of misconduct as against them.
35
The allegations of misdeclaration of inspected consignments,
non-inspection of consignments, deliberate non-charging of the
15% CIF surcharge, non-collection of samples, clearance of a
number of consignments by use of one CoC, selective
inspections, non-sampling of consignments from East African
Community (EAC) partner states, misuse of Pre-Verification of
Conformity (PVoC) exemption letters, delays in clearance of
consignments were not offences committed due to computer
system errors.

The Applicants were required to record all their transactions in

the E-portal computer System. This system could therefore be
used to assess performance of the Applicants as well as other
employees of the 1st Respondent. The claim that the issue of
personal performance was extraneous to the Audit Report is
misconceived.

It was the contention of the applicant’s counsel that the actions

of the 1st Respondent were guided by reason or fair consideration
of the facts. Additionally, the general public believes that there is
rampant corruption at the 1st Respondent that is contributing to
importation into Uganda of substandard products injuring the
safety and health of people they are supposed to protect. The 1 st
Respondent’s Audit Compliance Report of 2017, the Disciplinary
Committee hearings and its recommendations and the 1st
Respondent’s Management recommendations are focused at
correcting this problem.
It is therefore of national importance and in the interest of
justice that the 1st Respondent is given an opportunity to
complete the disciplinary process to address this problem. On
this basis, the disciplinary proceedings being conducted by the
1st Respondent cannot be said to be irrational or unreasonable.
The respondents prayed that this Application is struck out with
costs.

Determination

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The circumstances as set out in the application are quite peculiar
than the ordinary disciplinary proceedings. This court has had to
critically examine the purpose of the intended disciplinary
proceedings and how they were conducted.

The 3rd respondent extended the investigatory suspension period

of the applicants by one month in order to allow the conclusion of
investigations.

That upon the conclusion of the investigations into the alleged

unprofessional misconduct, the applicants were recalled from
investigatory suspension/interdiction by letters dated 5 th July
2017 and they were re-instated into their jobs.

That on 13th July 2017, the disciplinary Report for the inspection
of cases of unprofessional conduct was presented to the
management of the 1st respondent Management requested that
the investigations committee be strengthened and given two
more weeks to provide necessary information and/or data to
management and provide clarity on its recommendations under
section 8 of the Disciplinary Report.

That on 11th September 2017, the addendum to the Disciplinary

Report for the Inspection of cases of unprofessional conduct was
presented to the management of the 1 st respondent. At this
meeting, it was clearly stated that the management had upheld
the earlier findings of the Disciplinary Committee and the
recommendations to be made were based on the upheld findings
and the addendum.

The 3rd respondent recalled all the suspended staff from

interdiction on 5th July 2018. The effect of the recall would
ordinarily mean that they have concluded the investigations and
the parties are absolved. But this appears never to have been the
case since in the same letter they indicated that they are
awaiting completion of the disciplinary process.

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It would appear that indeed, the investigation process was
completed and the disciplinary committee had been satisfied
except that the management was not satisfied with the findings
of the investigation report and the proposed disciplinary actions
to be taken.

The proposal to strengthen the disciplinary committee was

intended to achieve a hidden objective and or guide proceedings
to arrive at a pre-determined outcome of the disciplinary
proceedings.

The applicants had a legitimate expectation that upon conclusion

of the whole process they would be redeployed to their positions.
The actions of the 1st respondent of making the investigation
achieve a given outcome of dismissing the applicants’ makes the
whole process of disciplinary action look suspect.

The applicants were obliged to appear and legitimately expect

that the respondents would respect the findings of the
disciplinary committee and not to subject the proceedings of the
investigations to any control or guide it in directing the
investigations towards a set outcome.

The recall of the applicants from the interdiction and

redeployment meant that the outcome of the investigations did
not establish the any culpability. The actions of the 1 st
respondent’s management to force a further investigation by
disciplinary committee created some suspicion to the whole
process.

It would appear that the Management Committee of the 1 st

respondent was exercising its powers for improper purposes.
Improper purposes may include malice or personal dishonesty on
the part of officials making the decision and mainly arising out of
mistaken interpretation by a public authority of what it is
empowered to do, and sometimes contributed to by an excess
zeal in the public interest.

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It appears they wanted a given outcome of the investigation in
order to make a statement to the public as indicated in the
affidavit that “ the general public believes that there is rampant
corruption at the 1st respondent that is contributing to
importation into Uganda of substandard products”

The disciplinary process were geared towards appeasing the

general public or make a general statement to the public that the
1st respondent was indeed fighting corruption and to that effect
some people had to be fired by hook or crook.

The powers of the Management committee was to consider the

disciplinary report as provided under the human resource
manual and not to reconstitute the disciplinary committee under
the guise of providing clarity on recommendation to enable
management make informed decisions.

This illegality taints the whole process and this court does not
agree with the reason advanced by the respondents and
whatever was agreed to in that meeting was intended to
perpetuate an illegality.

The effect of the complaint initiated from the top management-

Deputy Executive Director downwards to the Head Human
resource equally influenced the nature of investigations and this
meant that certain procedures were omitted. There is no
evidence of involvement of the respective heads of departments
in the investigation in order to establish prima facie case for
disciplinary action.

The major default of the said Audit report was that it was a
“systems Audit” and not a “performance Audit”. Therefore, the
report mainly focused on how effective the system was coping
with the inspection requirements of the Bureau and not on how
well the Applicants were performing their duties. Therefore, the
issue of “personal performance” was extraneous to the said audit
report and as such the “Audit report” itself was an extraneous
matter is investigating and assessing the conduct and
performance of the Applicants.

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It appears this contention was never properly responded to by
the respondents. The applicants had understood the audit to be
in respect of the newly introduced systems against their
respective performance. It would erroneous and illegal to
victimise the applicants over failures of the system in order to be
used as a performance audit in a bid to make a statement on
corruption in the entire organisation.

There were inherent errors in the system and the report confirms
that the inspection was made visually and the results of the
inspection was done manually by the inspectors on the given
Notebook and then later entered into the E-portal system.

The use of such a report to punish the applicants would indeed

be very unfair and an illegality if the systems are not corrected to
be used or applied in a proper manner.

The decisions made on the 13th day of September 2017 against

the applicant based on a second disciplinary report (addendum)
were tainted with illegality. The same could not be the basis of
ordering the applicants to vacate their positions

ISSUE THREE
What remedies are available to the applicant?

The ever-widening scope given to judicial review by the courts

has caused a shift in the traditional understanding of what the
prerogative writs were designed for. For example, whereas
certiorari was designed to quash a decision founded on excess of
power, the courts may now refuse a remedy if to grant one would
be detrimental to good administration, thus recognising greater
or wider discretion than before or would affect innocent third
parties.

The grant of judicial review remedies remains discretionary and

it does not automatically follow that if there are grounds of
review to question any decision or action or omission, then the
court should issue any remedies available. The court may not
grant any such remedies even where the applicant may have a
40
strong case on the merits, so the courts would weigh various
factors to determine whether they should lie in any particular
case. See R vs Aston University Senate ex p Roffey [1969] 2
QB 558, R vs Secretary of State for Health ex p Furneaux
[1994] 2 All ER 652

The applicants have satisfied the court that the decision of the
respondents relying on the addendum to dismiss them or order
them to vacate their offices or positions is hereby quashed.

The 1st respondent should only consider the original disciplinary

report in arriving at any decisions to be made against the
applicants and in order to conclude the disciplinary process.

The applicants have not made out any case for damages to be
award in their affidavits in support and but the same has been
made in their submissions.

Plaintiffs (applicants) must understand that if they bring actions

for damages, it is for them to prove their damage; it is not
enough to write down particulars and so to speak, throw them at
the head of the court, saying, “This is what I have lost, I ask you
to give these damages” They have to prove it. See Bendicto
Musisi vs Attorney General HCCS No. 622 of 1989 [1996] 1
KALR 164 & Rosemary Nalwadda vs Uganda Aids
Commission HCCS No.67 of 2011

The applicants are entitled to their full pay for the salaries and
other allowances until the disciplinary process is concluded.

Punitive Damages

The applicants have not set out any evidence to justify the award
for punitive and exemplary damages.

The applicants are awarded costs of this application.

I so Order.

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SSEKAANA MUSA
JUDGE
20th/12/2018

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