THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT NAKAWA
MISCELLEANOUS APPLICATION NO. 764 OF 2014
(ARISING FROM MISCELLANEOUS CAUSE NO. 76 OF 2014)
PROFFESSOR ISAIAH OMOLO NDIEGE====================== APPLICANT
KYAMBOGO UNIVERSITY=============================== RESPONDENT
before: hon. lady justice elizabeth ibanda nahamya
This Application is brought under Sections 33 & 38 of the Judicature Act Cap 13; Section 98 of the Civil Procedure Act Cap 71 and Orders 41, Rules 2(1) & 9, S.I 71-1.
The Applicant seeks orders that;-
- The Respondent, its agents or any other person refrain from receiving, opening and considering applications, short listing, contacting and interviewing candidates and appointing another person to fill the position of the vice chancellor of the Respondent institution pending the disposal of Miscellaneous Cause No. 76 of 2014 (‘‘the main suit’’) or until further orders of this Honourable Court;
- Costs of the Application be provided for.
This Application is supported by the affidavit deponed by the Applicant, PROFESSOR ISAIAH OMOLO NDIEGE, which is dated the 27th November, 2014.
The grounds of the application are that the Applicant has filed Miscellaneous Cause No 76 (‘‘the main suit’’) of 2014 for Prerogative Reliefs to prevent the recruitment of another person to fill the position of the Vice Chancellor of the Respondent while the Applicant is eligible for re-appointment for one more term of five years; the Applicant is the immediate past Vice Chancellor of the respondent and has demonstrated readiness and willingness to offer his services to the Respondent for one more term of five years. Further, no determination of misconduct or inability to perform has been made against the Applicant in respect of the first term.
The Applicant states that his rights have been infringed upon by the Respondent’s actions complained of, to wit, the formation of a Search Committee to identify a suitable candidate for the position of the Vice Chancellor of the Respondent while the Applicant is eligible for re-appointment for one more term of five years, the publication of an advertisement calling for candidates interested in the said position of the Vice Chancellor, the Respondent’s failure to carry out a fair and reasonable appraisal of the Applicant’s performance and conduct while in office during the first term and the appointment of other persons to act in the office of the Vice Chancellor during the suit period.
The Applicant states further that if his rights are not protected by a Temporary Injunction issued by this Honorable Court, he risks being removed from office or punished by premature truncation of his tenure without just cause, by having his reputation and career prospects irreparably damaged among others. Further, that the main suit shall be rendered nugatory if the Temporary Injunction is not granted. The Applicant states further that it is urgent that the status quo be preserved by blocking the Respondent from filling the position of the Vice Chancellor pending the determination of the main suit. The Applicant states that the balance of convenience favours him who seeks continuity of tenure and it is in the interest of protecting the Applicant’s threatened constitutional rights, it is just and expedient to allow this Application and grant the Applicant the injunctive relief sought.
The Application was opposed by an Affidavit in reply deponed on the 11th of December, 2014 by Mr. PATRICK MADAYA, the acting University Secretary. Mr. Madaya deponed that the Application infringes on the employer’s prerogative rights as it seeks a declaration for another term of office for the Applicant and therefore has no chances of success. He depones further that the Respondent has not in any way stopped the Applicant from participating in the recruitment process and that he is welcome to do so.
Mr. Madaya states that the Applicant is not entitled to reappointment but rather must participate in the recruitment process like any other candidate. He also states that the Respondent is a body corporate and is not bound by the legal opinion of the Attorney General. Furthermore, that the Applicant is eligible for reappointment if he participates in a fresh recruitment process and not automatically. He avers that the Applicant’s five year employment term at the Respondent institution was marred by strikes from students and staff. Further, that the Applicant’s contract expired and so he could not be kept in office.
It was Mr. Madaya’s contention that the Applicant’s argument that the Adhoc Committee was irregularly constituted is baseless and time barred. Further that the Applicant will not suffer any irreparable harm since he is already out of office but the Respondent, a public institution, will suffer great inconvenience if the recruitment process is halted for the sake of the Applicant. He also states that granting a Temporary Injunction will frustrate the Respondent given that there are other remedies available to the Applicant.
The Respondent is represented by Counsel Mubiru Kalenge Steven, Ms. Sarah Kisubi and Mr. Mpumwire Abrahamof M/s Kalenge, Bwanika, Ssawa & Co. Advocates and Basasa & Co. Advocates respectively whilst the Applicant was represented by Counsel Isaac Ssemakadde of M/s Centre for Legal Aid together with Mr. Peter Kibirango of RM Ruhinda & Co. Advocates.
Counsel for the Applicant, Mr. Isaac Semakadde submitted that the subject matter of the Application was an advertisement published by Respondent in 3 (three) Newspapers including The Daily Monitor(D1), The East African dated 22 – 28 November 2014 (D2) and The New Vision dated24th November 2013 which all advertised a vacancy for Vice Chancellor, Kyambogo University.
Mr. Semakadde argued that it’s illegal and improper to exclude suitable candidates below 45 years and to include candidates above 60 years which is the mandatory age for retirement as per the Pensions Act Cap 286 and Article 21 (1) of the Constitution of the Republic of Uganda. This Article prohibits unreasonable discrimination on age.
On the issue of reappointment, Mr. Semakadde submitted that the Applicant is eligible for reappointment for the position of Vice Chancellor for another term pursuant to S.31 of the University and other Tertiary Institution Act of 2001 (as amended in 2003 and 2006). He referred to the Legal Opinion on the State of Affairs and University Council of Kyambogo University (Annexture C), dated 13th June 2014, in which the Attorney General stated that the Applicant was not to be subjected to a fresh recruitment process but instead was to be evaluated before considering other Applicants.
Regarding the grant of an Injunction, he submitted further that there was a prima facie case since there are serious and triable issues including whether or not the opinion of Attorney General is binding on Kyambogo University, whether the Applicant is eligible for re-appointment or eligible to apply for re-appointment. He argued that section 31 (4) of the University and other Tertiary Institutions Act does not state that the Vice Chancellor is eligible to apply for re-appointment but it only talks of the vice chancellor being eligible for reappointment for another five year term.
Mr. Semakadde argued that it’s pre-mature, prejudicial, pre-judgmental, unprocedural and against rules of natural justice and fundamental rights for Respondents to consider the question of his re-appointment for one term of 5 years through status quo advertisement of his job.
On the issue of, Mr. Semakadde submitted that the Respondent is being operated by Acting Vice Chancellor Eli Katunguka. He further submitted that for the last 12 months the University has operated with an acting vice chancellor and preserving this status quo for two months will not change anything. Further that the newspaper adverts will destabilize the status quo, if Court does not stop the process before 19th December 2014. According to Mr. Semakadde, if Court does not halt the process, there would be nothing to prevent the appointment of a substantive vice chancellor, which would offend the Applicant significantly. According to counsel for the Applicant, a Temporary Injunction is meant to preserve the status quo and therefore protect the Applicant’s Rights, which are in issue pending determination of main cause. He cited Daniel Jakisa and Others v. Kyambogo University Misc. Application No. 549 of 2013 on this point.
Counsel Semakadde contended that the Application is not frivolous. According to Learned Counsel, the Temporary Injunction is to first of all, meant to protect Applicant’s Constitutional rights to be heard in the main suit where legality of on-going process of recruiting a vice chancellor through open competition and not appraisal of existing Vice Chancellor has been challenged. The main suit is for 4th March 2015. This date is so far away yet after 19th December 2014 the Respondent could complete the process complained of in less than a week.
Mr. Semakadde submitted that there is need to halt the impugned process until Court determines whether subjecting the Applicant to internal appraisal on open advertisement is the right procedure for fulfilling requirements of S. 31 (4) of the University and other Tertiary Institution Act. Further, that if the Temporary Injunction is not allowed, the Respondent will inappropriately be allowed to subject the Applicant to open competition and so there will be no main suit. Mr. Semakadde also submitted that if the Application is disallowed, the Respondent will complete the process and this will render the Court’s intervention nugatory. The legality and propriety of the on-going process to seek for Vice Chancellor has been placed before the Court for determination so the Applicant cannot participate in a process he deems to be unlawful and unprocedural.
Additionally, Counsel pointed out that there would be no need for a Judicial Review. He referred to the case of Daniel Jakisa (p. 28) where the Court held, that a Temporary Injunction would not be granted if its effect would be to dispose of the main application.
Furthermore, Mr. Semakadde argued that the Applicant’s right of hearing the Judicial Review Application is a non-derogable right which shall be irretrievably lost if the status quo is not preserved. Mr. Semakadde pointed out that it’s untrue as per paragraphs 36 and 42 of Mr. Madaya’s affidavit in reply that the Application for a Temporary Injunction is meant to force the University to appoint the Applicant as Vice Chancellor. He pointed out that if the Affidavit in Reply was accompanied by an appraisal report, records of its proceedings, appointment instrument for a term office beyond 2014, the Applicant would not be in Court. He contended that the Respondent has failed to show that there is no status quo to be preserved until the Respondent can adduce an appraisal report and appointment instrument for another appointee for the period beyond 2014.
- Prima Facie Case
Mr. Semakadde also submitted that the Application is not vexatious and that a review of pleadings in the main suit and the present Application show that there are triable issues. He submitted that paragraphs 8-13 of the Applicant’s Affidavit in Rejoinder bring out the following issues including the alleged right of the Respondent as employer viz a viz the Applicant as a former employee; the Applicant’s rights upon expiry of 1st term of office; the fairness of the way the Applicant has been treated in the circumstances; whether the Respondent has breached any legitimate expectations on the Applicant and whether/or not the main case is tenable and a proper case for Judicial Review.
Mr. Semakadde stated that the Affidavit in Reply addresses issues in the main review yet it is not necessary to address them in this Application. He cited the case of R. vs. Cabinet Secretary for Education, Science and Technology and others Judicial Review Division JR Case No. 280 of 2013, where the High Court of Kenya had to resolve an interpretative dispute premised on a statutory provision akin to S. 31 of the University and otherTertiary Institutions Act. In that case, the High Court had to resolve the issue of procedure of application and re-appointment of the Vice Chancellor of Jomo Kenyatta University of Agriculture and Technology. At page 6 and 7 of the decision, there is an opinion similar to that of the Attorney General of Uganda. He stated that consequently, the Applicant has a prima facie with a likelihood of success.
- Irreparable Harm
On the issue of irreparable harm, Counsel cited Daniel Jakisa, supra where the Court cited with approval the case of Ananias Tumukunde v Attorney General Constitutional Petition Application No. 03 of 2009, Court held that where allegations of breach of human rights are raised, these should not be taken lightly, and even in their unproved form they must be guarded jealously. He also referred to Davis Wesley Tusingwire vs. Attorney General Constitutional, Petition No. 6 of 2013, where Court held that if a Temporary Injunction is not granted, the Applicant will be subjected to a procedure which is illegal and with which the Applicant does not agree. Moreover, it affects his human rights. Counsel submitted that that the present case, is consistent with Tusingwire’s case because if the Application is not allowed, the Applicant will agonize over his inability to exercise his right and fulfil his duty to defend the Constitution against a possible breach of the Supreme law of the land.
Mr. Semakadde submitted that the Applicant would suffer if the Temporary Injunction is not allowed. He submitted further that in absence of a performance report, the Applicant has nothing to use to lobby for another job which will affect his future employment. Mr. Semakadde contended that if another Vice Chancellor is given an Instrument of Appointment beyond 2014 without Prof Ndiege getting his Assessment Report, the reputation risk of an internationally recognized Professor is irreparable for which no amount can be paid to sufficiently compensate him for lack of a fair appraisal. The Respondent has deliberately failed to state or order that the University shall compensate the Applicant for harm done. See paragraph 14 of Affidavit in Rejoinder. Furthermore, the Respondent has not shown that anyone would suffer greater harm than Applicant by the preservation of the status quo.
- Balance of convenience
Mr. Semakadde submitted that the public will benefit if such a dispute never recurs in any university including Kyambogo, because the High Court would have dealt with the matter at the source of dispute. He submitted further that if Court went to the final disposal of the case and found that impugned decision is regular, the process could go on. That the acting vice chancellor can still hold the University without inconvenience and if Court, finds that the impugned recruitment proceedings are unfair, and so null and void, all those who would have participated in them would have been extremely inconvenienced.
Mr. Kalenge submitted that the employer’s right to hire and fire is sacrosanct subject to the Constitution. He referred to Bank of Uganda v Tinkamanyire SCCA NO. 12 of 2008. Mr. Kalenge submitted that the Respondent has never refused to give the Applicant a fair opportunity for reappointment. Mr. Kalenge also contended that the Respondent was ready to engage him as per paragraph 16 of Madaya’s Affidavit but that the Applicant had to undergo Legal Procedure set in S. 31 (2) of the University and other Tertiary Institutions Act. He stated that the Respondent’s view is that the Applicant is eligible to be appointed. Concerning the re-appointment of the Vice Chancellor after 5 years, Counsel submitted that the law is silent in S. 31 (4) of University and other Tertiary Institutions Act. Counsel for the Respondent submitted that the Applicant qualifies but he has to go through an open system.
Mr. Kalenge argued that when the Attorney General gives an opinion it can be ignored or found to be faulty. Furthermore that, Kyambogo University took the view that Attorney General’s opinion was erroneous. According to Learned Counsel, legal opinion of the Law Firm does not take precedence over Attorney General’s legal advice and opinion but Law Firm’s opinion might be more correct than that of an Attorney General. He referred to the case of Kabagambe and 3 Ors v. Electoral Commission, Constitution Petition No.1 of 2006 where it was held that the Attorney General is the principal legal advisor to Government but his opinion is not binding.
Mr. Kalenge submitted that if the Applicant makes his Application in accordance with the law, he can be considered together with other Applicants. He further submitted that the Respondent is a body corporate so the Applicant has no prima facie case and should not be granted an Injunction. He referred to the case of Republic vs. Cabinet Secretary for Education, Science and Technology. It was Mr. Kalenge’s submission that this case is distinguishable from the former i.e. Bank of Uganda vs. Betty Tinkamanyire, supra. In the former case, another interested party brought the suit yet in the instant case, there is a prospective employee challenging the process of an employer. He submitted that the Applicant wants to set rules for an employer. He submitted further that Court should not be persuaded by the Kenyan case since Application of Review process is based on a wrong procedure, it has no chance of success, and it should be dismissed. Mr. Kalenge submitted that the Applicant will not suffer any damage if Injunction is not given because he has no automatic right re-enter office.
Balance of convenience
Mr. Kalenge referred to the case of Gladys Nakibuule Kisekka vs. Attorney General, Constitution Petition No. 55/2013 and submitted that Kyambogo University as a public institution is carrying out its duty and cannot be stopped in its process of recruiting a Vice Chancellor by someone who wants an exceptional treatment. Counsel also referred to Manzi John Murungi v. Makerere University and Academic Registrar and Makerere University at page 13, where the High Court, where the Court decided not to issue a Temporary Injunction as matter would affect others. He argued that if the Court grants the Temporary Injunction the main Application would have been disposed of contrary to what Applicant states.
Mr. Kalenge submitted that the status quo is that there is an acting Vice Chancellor and also that Respondent has received applications for the position of a Vice Chancellor and the process is taking place. He submitted that therefore is no status quo to be preserved. He prayed for court to dismiss the Application and award costs to Respondent.
Mpumwire Abraham for Respondent
Mr. Mpumwire submitted that Applicant will not suffer any irreparable damage. He submitted further that the University issued adverts inviting all suitable candidates to apply for the post of vice chancellor under S. 31 (4) of University and other Tertiaries Act 2001, that the Applicant is eligible to apply though not entitled to be Vice Chancellor. Learned counsel pointed out that “Eligibility” means he is fit to be chosen just like other professors are fit to be selected. That if the Applicant follows the advert, he will be considered. Mr. Mpumirwe submitted that if the Applicant is not granted a temporary injunction, he will not suffer any damage.
Counsel for the respondent submitted that the balance of convenience is one of doing justice. He cited Ruth Semambo & 4 others v Sheila Kawamara Mishambi Misc. Application No. 137/09 and Gladys Nakibuule’s, where the Constitutional Court held that the Applicant had satisfied all principles but on balance of convenience it looked at how order will affect others. He pointed out that in the instant case, other eligible candidates are not party to the Application and their rights will be affected.
The conditions for the grant of a Temporary Injunction have been reiterated in several decisions. They include the probability of success, irreparable harm which cannot be adequately compensated with damages. See Victor Construction Works Limited v Uganda National Roads Authority Misc. Application No. 601 0f 2010; Kiyimba Kaggwa v Haji Abdul Nasser Katende  HCB 43; Giella v Cassman Brown and Co. Ltd  EA 358.
- Prima facie case with a probability of success
For the grant of a temporary injunction, it is sufficient for an applicant to show that there are triable issues and that the action that has been brought is not frivolous or vexatious. See American Cyanide v Ethicon  1 ALL ER 504. It is not necessary for the Applicant to delve into the merits of the case and to establish a strong case.
I have perused the documents of main application for judicial review Miscellaneous Application No. 76 OF 2014. In this application, the Applicant seeks several orders including;
An order of certiorari calling for and quashing the Respondent’s decision to form a search committee to identify suitable candidates for the position of Vice Chancellor while the Applicant is eligible for reappointment for one more term of five years
An order of prohibition barring the Respondent and its servants or agents or any other person from recruiting another person to fill the position of Vice Chancellor unless and until the Applicant has been given a fair and reasonable opportunity
I have also perused the pleadings and annextures attached to the pleadings. I have also carefully considered the parties’ submissions. Mr. Semakadde for the Applicant, submitted that the application is not vexatious and that a review of pleadings in main suit and present application shows that there are triable issues. He submitted that the issues include the alleged right of the Respondent as employer viz a viz the Applicant as former employee and whether this is a proper case for Judicial Review.
Mr. Kalenge submitted that the Respondent has never refused to give the Applicant a fair opportunity for reappointment. Mr. Kalenge submitted that the applicant is eligible for reappointment but must follow established procedures and go through a fresh recruitment process and be considered together with other applicants. Counsel for the respondent submitted that the Applicant has no prima facie case.
The main issue for consideration is whether the process of advertisement and recruitment for the post of vice chancellor of Kyambogo University is legal and proper. The second issue is whether or not the Applicant is eligible for reappointment, and whether in such circumstances, he must be subjected to a fresh recruitment process or only to an evaluation for his performance in his previous term.
Having considered all the issues raised by the Applicant in the main application for judicial review, I am convinced that it raises serious questions and has a probability of success.
- Irreparable harm
As regards the second condition, in the case of Kiyimba-Kaggwa v Hajji Abdu Nasser Katende (supra) it was held that:-
“Irreparable injury does not mean that there must not be physical possibility of repairing injury, but means that the injury must be a substantial or material one, one that cannot be adequately compensated for in damages”.
On this issue, Counsel for the applicant submitted there were allegations of breaches of human rights, such as the right to be heard which should be taken seriously. He pointed that that the applicant had not been appraised and would suffer irreparable harm as a result of being subjected to a procedure that is illegal and affects his human rights.
It was contended for the respondent that the applicant will not suffer any damage since he does not have an automatic right to re- enter office. In the circumstances, I am more inclined to agree with counsel for the applicant. In my considered opinion, there are allegations of breaches of human rights which must be considered. I find that the right to a fair trial is one of the most fundamental human rights which every individual is entitled to enjoy. The principles of natural justice also require that one must be heard before any such action is taken. In the circumstances, I find that the Applicant will suffer irreparable harm if he is not granted the basic elements of natural justice.
- Balance of Convenience
It is trite law that if the Court is in doubt on any of the above two principles, it will decide the Application on the balance of convenience. The term balance of convenience literally means that if the risk of doing an injustice is going to make the Applicants suffer then probably the balance of convenience is favorable to him/her and the Court would most likely be inclined to grant to him/her the Application for a temporary injunction. The "balance of harms" refers to the threatened injury to the party seeking the Preliminary Injunction as compared to the harm that the other party may suffer from the Injunction. The Court will consider where the "balance of convenience" lies, that is, the respective inconvenience or loss to each party if the Order is granted or not. The Court will consider all the circumstances of the case.
Counsel for the Applicant submitted that the acting Vice Chancellor can still hold the University without inconvenience and if Court finds that impugned recruitment proceedings are unfair, and so null and void, all those who would have participated in them would have been extremely inconvenienced.
Counsel for the Respondent submitted that in the instant case, other eligible candidates are not party to the Application and their rights will be affected. It was also contended for the Respondent that if the Court decided to issue Temporary Injunction, the matter would affect others. Mr. Kalenge argued that if the Court grants the Temporary Injunction the main application would have been disposed of contrary to what Applicant states.
I am inclined to agree with the Applicant’s Counsel that if the proceedings are later on found to be illegal and unfair, all those participating will be at a great inconvenience. Moreover the acting vice chancellor can hold that office for now.
In my view, the Applicants have made their case and I accordingly allow their Application on this ground. In the case of Victoria Construction works Ltd Versus Uganda National Roads Authority HMA No. 601 of 2010 the High Court while citing the decision in J. K. Sentongo vs. Shell (U) Ltd  111 KLR 1, Justice Lugayizi observed that if the Applicant fails to establish a Prima Facie case with likelihood of success, irreparable injury and need to preserve the status-quo, then he/she must show that the balance of convenience was in his favor. I wish to say that the Applicant has satisfied that this ingredient exists. This Application, therefore, ought to succeed. The advertisement for the position of vice chancellor can always be displayed at a later stage without inconvenience to the Applicant.
On the issue of status quo, Mr. Semakadde submitted that newspaper adverts will destabilize the status quo if Court does not stop process before 19th December 2014. According to Mr. Semakadde, if Court does not halt the process, this would lead to the appointment of a substantive vice chancellor, which would offend the Applicant significantly. Mr. Kalenge for the respondent submitted that the status quo is that there is an acting vice chancellor and also that Respondent institution is receiving applications for the post of vice chancellor. He submitted that is no status quo to be preserved.
It is my considered opinion that there is need to preserve the status quo. I am aware that the process of recruiting another Vice Chancellor is ongoing. According to me, the purpose of the temporary injunction is to primarily preserve the status quo of the subject matter pending the final determination of the case. I associate myself with the decision in the case of Godfrey Sekitoleko & Others vs. Seezi Mutabazi & Ors [2001-2005] HCB 80. In this case, Court held that the Court has a duty to protect the interests of the parties pending the disposal of the substantive suit. The subject matter of a temporary injunction is the protection of legal rights pending determination. I am concerned with a legal right that has been infringed. The Applicant has demonstrated that his right has been trampled upon by the Respondent. The Respondent’s action against the Applicant was not done in a proper way. Hence, whatever decision the respondent took without subjecting the Applicant to any form of appraisal or evaluation was in itself an infringement of the Applicant’s right. In my view, the Respondent’s actions of advertising and appointing another person as an acting Vice Chancellor is as good no action has taken place. It is such an act must be stopped if the applicant is to enjoy his right. In the circumstances, the Applicant had made his case and I accordingly allow his application on this ground. See Clovergem Fish & Foods Ltd v International Finance Corp. & 7 Others [2002-2004] UCLR 132
In the result, the Applicant has demonstrated that this application has merit. It ought to succeed. I am alive to the fact that an application for a Temporary Injunction should not be granted if its effect is to dispose of the main suit. I have not delved into the issues of the main suit which seeks for prerogative reliefs. Therefore, this Application does not dispose of the main suit as the same is still pending with different remedies sought therein. This Application is allowed. In the final result, I grant the application. Costs shall be in the main cause.
I SO ORDER.
HON. LADY JUSTICE ELIZABETH IBANDA NAHAMYA
19TH DECEMBER 2014.