Court name
HC: Civil Division (Uganda)
Judgment date
7 April 2017

Mukesi v Pallisa District Service Commission & Anor (HCT-04-CV-MC-2015/15) [2017] UGHCCD 82 (07 April 2017);

Cite this case
[2017] UGHCCD 82
Coram
Kawesa, J

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA

HOLDEN AT MBALE

 

HCT-04-CV- MC- 0015 OF 2015 

 

MUKESI ROBERT                        ::::::::::::::::::::::                     APPLICANT

VERSUS

  1. PALLISA DISTRICT SERVICE COMMISSION
  2. OTIM CHARLES                            :::::::::::::                    RESPONDENTS

 

RULING

 

The applicant brought this application under O. 52 r 1, 2, 3 of the Civil Procedure Rules, Section  36 of the Judicature Act and Section 98 of the Civil Procedure Act. for orders of Mandamus to compel the Respondent to:

  1. Confirm the appointment of the applicant on promotion as District Planner Pallisa District Local Government under Salary U2.
  2.  An order that Respondents pay general, punitive and aggravated damages to the applicant because of their unjustifiable actions.
  3. Costs of the application be provided for.

 The facts were that on 28 January 1997 applicant was appointed on probation as a district Economist.

On 11 July 2000, he was appointed acting District Planner, but to date he has never been confirmed in that position, despite several demands from him for the same.

The applicant argues that the section (A-C) (a) of the Public  standing orders  2016, demands person to act  for six months on extension but not more than  12 months. He argued that Respondents have without any justifiable cause refused and/or neglected to confirm and promote the applicant as a District Planner Pallisa District Local Government, inspite of several recommendations to the effect. He referred to annex ‘A’ and ‘B’, ‘C’, ‘D’ and ‘E’, ‘G’, ‘H’, to argue his case. He referred to the case of John Jet Tumwebaze Vs.  Makerere  University Council & 3 Ors CIVIL APP.353  of 2015.

He argued that the orders  of mandamus, certiorari  and prohibition  are discretionary  in nature  and while granting  the said orders court must act  judicially  according to the  settled principals which  includes:

  • Common sense and justice.
  • Whether the application is meritorious.
  • Whether the application is reasonable.
  • Level of vigilance.

He referred to other cases of Kings V Electricity Commissioners Expert London Electricity Joint Committee 1924 1 KB171,  Adam Mustafa Mubiru and Another versus Law Development Center Misc. App N0. 279 of 2013 and Ostraco Ltd vs. AG HCCS 1380 of 1986 CA 37/2002.

He also referred to Article 200 of the Constitution, Section 55(1) Local Government Act, Section 58 Local Government Act, and Article 166(1) (b) of the Constitution, and Article 170 (1) (d) of the Constitution.

In Response, the Respondents argued  that according to Establishment Notice  2 of 2014, dated  1st July  2014 from  the Ministry  of  Public  Service, all accounting officers,  signed  by the Permanent Secretary Ministry  of Public of service (annex ‘D’) provided the law is that before  recruitment  of an  officer, there must be a clearance and approval  or recruitment  from the Ministry of Public Service  and confirmation  of availability  of wage.

He argued  that the post  of District  Planner, Pallisa District  Local Government  is a vacant  post  which  needs clearance  from  the Ministry of  Public  Service before filling  it .

After clearance and approval from Ministry of Public Service, the District Service Commission can advertise the vacant post to be filled.

He referred to “A” and “B” annexed to the affidavit in reply to argue that filling of that post was never cleared by the Ministry of Public Service.

He further argued that the remedy of mandamus cannot be resorted to by the applicant to try and force the Respondents to perform an illegal act.

He referred to the authority of  Makula International  V. Cardinal Nsubuga , and argued  that what  applicant  was seeking  to enforce is an irregularity  and court  cannot  be used as a means to  enforce  an irregularity.

He referred to establishment Notice No. 2 of 2014, to pray that the application is incompetent and should be dismissed.

I have gone through, the above arguments. The law regarding the writ of mandamus has been  rightly  recited by the applicant in  submissions. I however wish  to add that mandumus which  is from  latin  word  Mandare, which means  “We command”  is a command  issued by the  High Court  to an administrative authority or  inferior tribunal  directing  it to perform  a peremptory  duty  imposed upon it by law. According to R V Minister  of  Local  Government & Anor  exparte Mwalima( 2002) 2 KLR 559,  

The  order  of Mandamus  issues against  any  kind of  authority  in respect  of any  type  of function-  be it  administrative, legislative , quasi judicial or judicial  to enforce  a duty  the performance of  which  is imperative and  not  optional or discretionary.”

In Jothan Malati Welamondi V Chairman  Electoral Commission  of Kenya ( 2002) 1 KLR 486, It  was further held that:

When an authority  fails in its legal  duty to implement  an order  of a tribunal, mandamus  can be issued compelling it to do so.”

To maintain an application for mandamus the applicant must satisfy the court that he has a right to compel the public authority to perform the duty in question. In the absence of any such right mandamus cannot be granted (per holding in Churchhill Meshack and others V Egerton University MSC. APP 929 of 1996 (unreported) Kenyan authority).

Also John Jet Tumwebaze V Makerere University Council & Ors CV App. 353/2013.

The question to answer now is whether the applicant herein had the above right.

From the genesis of this case and the response from the Respondents it would appear that the applicant did not have the said right. This is so because, the power to have him promoted by the Respondents is not vested in them solely. It has been shown that for the exercise of promotion to happen there must be specific steps to be followed as contained in Mboga Isa’s affidavit in reply and Otim Charles’ affidavit in reply. In the  supplementary  affidavit  of Otim  Charles under annex “D” it  is shown  that according to establishment Notice No.2 of 2014, from  the Ministry  of Public Service dated  1st July  2014,

before the  recruitment  of an officer  in the District Local Government, there must be a  confirmation  of  availability  of wage, a clearance , and approval  of the recruitment must be sought from the Ministry of Public Service.”

It was shown that when such clearance was sought (see paragraph 6 of Otim’s affidavit) the same was not approved as per annex “A” and “B”.

I notice from annex “A” and “B” that the post of ‘Planner’ though submitted for. Recruitment was not cleared.

However annex ‘B’ also limited the clearance to “availability of funds”.

Therefore the applicant who was not substantively appointed as a Planner could not force government to recruit him.

From that position therefore, am in agreement with counsel for the respondents that any attempt to do so would be engaging in an illegality. There is no way the applicant can force the respondents to recruit him to a position not cleared by Public Service.

Secondly even if the position  was cleared, there is no  way  this court  can force  the Respondents to engage into a recruitment  exercise  which  has budgetary  implications whose funds are allegedly not  available.

On the authority of Makula International V Cardinal Nsubuga this court cannot enforce an illegality.

This application is not proved. The remedies sought for are not available to the applicant.

For all the above reasons this application fails and is dismissed with costs to the Respondents. I so order.

 

 

Henry I. Kawesa

JUDGE

07.04.2017