2022 Ughccd 225
2022 Ughccd 225
2022 Ughccd 225
CIVIL DIVISION
VERSUS
RULING
The applicant filed this application for judicial review under Rules 3, 6, 7 and
8 of the Judicature (Judicial Review) Rules, 2009 for the following orders;
1. Certiorari to call for and quash the decision of the respondent
purporting to remove the applicant from public office vide a letter
issued on 10th September 2021, signed by the Chief Executive Officer.
2. That the applicant’s contract was a fixed term hence this application is
over taken by events as his contract expired on 3rd September 2021 and
was never renewed or extended hence the applicant is devoid of locus
standi.
3. That the applicant sabotaged the process of his contract renewal and
or extension when he willfully failed or neglected to respond or
indicate his acceptance to the offer by the respondent to renew his
contract under the prevailing terms and conditions.
At the hearing of this application, the parties were directed to file written
submissions which I have had the occasion to read and consider in the
determination of this application.
The following issues were raised for determination before the court;
Preliminary objection:
He also submitted that the law on applications for extension of time and for
leave of court was that they can be sought and granted after filing that is ex-
post facto. Counsel argued that the matter had been adjourned to the 21 st of
April 2020 which was the date he had intended to seek leave to formalize the
filing of the supplementary affidavit in reply.
In rejoinder counsel for the applicant reiterated their submission that the
affidavit was defective and ought to be struck off the record of the court since
it was filed fourteen days after the closure of pleadings.
Determination:
Rule 7 (3) of the Judicature (Judicial Review) Rules, 2009 provides that;
“Any respondent who intends to use any affidavit at the hearing shall file it
with the registrar of the High Court as soon as practicable and in any event,
unless the Court otherwise directs, within sixty days after service upon the
respondent of the documents required to be served by sub-rule(1).
This application was filed on 26th December 2021 while the supplementary
affidavit was filed on 16th March, 2022. According to the Court record, the
respondent did not seek leave of court to file the supplementary affidavit.
I have perused this affidavit and I concur with counsel for the applicant that
it was an afterthought. The new evidence brought forthwith pertaining the
applicant’s employment with Busitema University does not touch this
matter.
Therefore said affidavit was wrongly filed in Court without leave and the
same is struck out since it is contrary to the Judicature (Judicial Review)
Rules and the Civil Procedure Rules.
In submissions, counsel for the applicant first defined judicial review as per
Rule 3 of the Judicature (Judicial review) (Amendment) Rules, 2019 as the
process by which the High Court exercises its supervisory jurisdiction over
the proceedings and decisions of subordinate courts, tribunals and other
bodies or persons who carry out quasi-judicial functions or who are charged
with the performance of public acts and duties.
Referring to the case of Editors Guild Uganda Ltd & Anor -v- Attorney
General, Misc. cause No. 400 counsel submitted that the purpose of judicial
review is to ensure that the individual is given a fair treatment by the
authority to which he or she has been subjected.
That in the instant case the applicant was deprived of an opportunity and
forum through which his grievances and defence would be handled. That
there was no internal mechanism through which, the applicant would have
enjoyed by way of appeal. That this was admitted by the respondent in
paragraph 17 of its affidavit in reply. That the application sought to
challenge the respondent’s decision to terminate an already approved
contract of service thus rendering the said decision illegal, unconstitutional,
unjustified, unreasonable, against the principles of natural justice and
characterized by procedural irregularity. Counsel prayed that the court to
find the application competent.
b. The authority shall, with the approval of the minister, make regulations
governing the terms and conditions of employment of the staff of the
authority.
ANALYSIS:
While Rule 3A grants any person who has a direct sufficient interest in a
matter to apply for judicial review. Rule 7A (1) of the Judicature, (Judicial
Review)(Amendment) Rules, 2019 provides that the Court, in considering
an application for judicial must satisfy itself that;
a) The application is amenable for judicial review.
b) The aggrieved person has exhausted the existing the remedies available within
the public body or under the law; and
c) The matter involves an administrative public body or official.
Further, with regard to employment and judicial review, the Court must
consider the process of appointment and revocation of the appointment and
whether the aforesaid are governed by a Statute or the Constitution. Where
the appointment or revocation is not governed by Statute or the Constitution
then it is a matter of private law. The Applicant is erroneously using this
application under judicial review to enforce a private law benefit. This court
relies on the decision in R vs British Broadcasting Corporation Ex P Lavelle
[1983] 1 ALL ER 241 which provides that private employment is clearly
outside the realms of judicial review.
It is settled law in Uganda, as was held in High Court Misc. Cause No.
0003/2016: Arua Kubala Park Operators And Market Vendors’ Cooperative
Society Limited v Arua Municipal Council, which quoted with approval R
v East Berkshire Health Authority Ex Parte Walsh [1984] 3 WLR 818, that
the remedy of judicial review is only available where the issue is of breach
of “public law”, and not of breach of a “private law” obligation. To bring an
action for judicial review, it is a requirement that the right sought to be
protected is not of a personal and individual nature but a public one enjoyed
by the public at large.
According to of the text Public Law In East Africa, Ssekaana Musa, 2009,
LawAfrica Publishing, the learned author states, at page 36, that 2 (two)
things must be established for judicial review to be available, 1) the body
under challenge must be a public body whose activities can be controlled by
judicial review, 2) the subject matter of the challenge must involve claims based on
public law principles, not the enforcement of private law rights.
Public law is the system which enforces the proper performance by public
bodies of the duties which they owe the public. On the other hand, private
law is concerned with enforcement of personal rights of persons, human or
juridical, such as those emanating under property, contract, duty of care
under tort and mainly regulates relations between private persons: Arua
Kubala Park Operators And Market Vendors’ Cooperative Society Limited
v Arua Municipal Council. (supra)
The learned author of Public Law in East Africa (supra) at page 45, states
that disputes arising out of the employment relationship will be private law
disputes, and thus claims to enforce a right derived from contract or from
statutory requirements, which have been incorporated into a contract, are
private law claims enforceable by ordinary action for damages or a
declaration or injunction.
There are various reasons why legislation may create an avenue of redress
into which the Court may divert challenges, including a desire to make
access to justice available more locally; a wish to prevent the court from
becoming overburdened with cases; the fact that the tribunal or other
specialist body may have more expertise in the subject of the claim than
court.
These facts disclose that the dispute herein relates to the applicant’s rights
under the Employment Act. In that case, the Labour Officer or the Industrial
Court are best suited or specialized in handling and determining labour
disputes.
This application is incompetently before this court for failing to exhaust the
existing available remedies under the Employment Act and is therefore
dismissed with costs.
I so order.
SSEKAANA MUSA
JUDGE
31st OCTOBER 2022