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Fairland University v National Council For Higher Education (NCHE) (Constitutional Petition No. 6 of 2015)

Constitutional Court · [2023] UGCC 95 · 2023 Petition Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137 challenging the revocation of a private university's provisional licence and a directive to close it as unconstitutional
Decision
Petition dismissed; the respondent's revocation of the petitioner's provisional licence upheld as a lawful and fair administrative decision.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Constitutional Court dismissed a petition challenging the revocation of a private university's provisional licence. The petition was not res judicata, as the earlier High Court suit and judicial review involved different causes of action arising before the impugned acts. On the merits, the respondent was an administrative — not quasi-judicial — body not bound by court procedures, and it acted fairly by issuing repeated notices and affording the petitioner ample time (2007–2013) to remedy deficiencies before revoking the licence under section 98 of the Universities and Other Tertiary Institutions Act. Allegations of bias against the chairperson were unsubstantiated. Although the petition disclosed a cause of action and the Court had jurisdiction, it lacked merit; each party to bear its own costs.

Outcome

Petition dismissed; the respondent's revocation of the petitioner's provisional licence upheld as a lawful and fair administrative decision.

Facts

Fairland University was incorporated in 2001 and issued a provisional licence by the National Council for Higher Education (NCHE) on 10 November 2005, its continued validity conditional on meeting set standards. In 2007 and again in 2009, NCHE published Gazette and newspaper notices of intention to revoke the licence, citing deficiencies in management and governance, academic staff, the library and infrastructure, and giving time to rectify them. The university did not comply. In 2013 a monitoring team visited its premises, found the deficiencies unaddressed, and recommended revocation. On 11 March 2013 NCHE's council resolved to revoke the provisional licence and notified the Vice Chancellor; the revocation was published in the Gazette and newspapers. On 2 February 2015 NCHE's Executive Director wrote to the Chief Administrative Officer of Jinja District directing closure of the university's programs, as it had continued operating after revocation. The university petitioned the Constitutional Court alleging breaches of its rights to a fair hearing, education and to practise a profession, and bias arising from the council chairperson also serving as Vice Chancellor of Gulu University. Neither party filed written submissions.

Issues

  1. Whether the issues raised in the petition are res judicata or pending before the High Court at Jinja.
  2. Whether the respondent's act of revoking the petitioner's provisional licence and directing the Chief Administrative Officer to close its programs are inconsistent with or contravene Articles 28(1), 44(c), 38(1), 40(2) and 30 of the Constitution.
  3. Whether the acts of the respondent under the chairmanship of a person who also serves as Vice Chancellor of a public university are inconsistent with or contravene Articles 28(1), 44(c) and 233(2)(b) of the Constitution.
  4. Whether the Constitutional Court has jurisdiction to grant the relief sought.
  5. Whether the petition merits the relief sought.

Orders

  • Petition dismissed for lack of merit.
  • Declaration that the revocation of the petitioner's provisional licence was made in a just and fair manner after affording the petitioner opportunity and ample time to address the gaps notified to it.
  • Declaration that the directive to the Chief Administrative Officer, Jinja District to enforce closure of the petitioner did not violate Articles 30 and 40(2) of the Constitution and is not null and void.
  • Declaration that the qualifications and awards obtained from the petitioner after the revocation are not valid.
  • Each party to bear its own costs.

Rules and key headnotes

Constitutional Law — Article 137(3) — Disclosure of a Cause of Action
A petition under Article 137(3) sufficiently discloses a cause of action where it describes the act or omission complained of, identifies the constitutional provision alleged to have been contravened, and seeks a declaration to that effect; such a petition is given a more liberal and broader interpretation than a plaint in an ordinary civil suit.
Civil Procedure — Res Judicata — Section 7 Civil Procedure Act
A matter is not res judicata where the cause of action in the former concluded suit differs from that in the subsequent proceedings and the acts complained of arose after the earlier proceedings; for the doctrine to apply there must be a former suit decided by a competent court, the same matter directly and substantially in issue, and the same parties litigating under the same title.
Administrative Law — Natural Justice — Administrative Bodies as Masters of Their Own Procedure
Administrative bodies are not bound by the technical rules of procedure applicable to courts and tribunals under Articles 28 and 44 of the Constitution; they discharge their duty to act fairly under Article 42 by informing the affected party of the deficiencies and affording it a fair opportunity to address them, and a hearing in the curial sense is not required.
Administrative Law — Fair Hearing — Adequacy of Notice and Opportunity
The duty to act fairly in administrative decision-making is satisfied where the affected party is given adequate notice of its failings and ample time and repeated opportunities to rectify them before an adverse decision is taken, and the onus to prove the contrary lies on the party alleging unfairness.
Administrative Law — Bias — nemo judex in causa sua
An allegation of bias against a collective decision-making body cannot be sustained merely because its chairperson holds another office, absent evidence that the chairperson used his position to influence the decision; an allegation of bias raised only after an adverse decision, rather than at the outset, is an afterthought.
Constitutional Law — Jurisdiction of the Constitutional Court — Article 137(4)
The Constitutional Court has jurisdiction to grant redress where a petition under Article 137(3) succeeds, but no relief follows where the substantive constitutional issues are resolved against the petitioner.

Legislation cited (24)

Cases cited (11)

  • Ismael Serugo v Kampala City Council & Attorney General (Constitutional Appeal No. 2 of 1998)
  • Major General Tinyefuza vs Attorney General (supra)
  • Baku Raphael Obudra v Attorney General (Constitutional Petition No. 1 of 2003)
  • Anifa Kawooya v Attorney General & Another (Constitutional Petition No. 42 of 2010)
  • Centre for Health, Human Rights and Development (CEHURD) & 3 Others v Attorney General (Constitutional Appeal No. 01 of 2013)
  • Karia & Another v Attorney General & Others [2005] 1 EA 83
  • Cheborion Barishaki v Attorney General (Constitutional Petition No. 4 of 2006)
  • R v Commission for Racial Equality [1982] AC 779
  • R v Race Relations Board, Ex parte Selvarajan [1975] 1 WLR 1686
  • Kenya Revenue Authority v Menginya Salim Murgani (Civil Appeal No. 108 of 2009)
  • R v Criminal Injuries Compensation Board, Ex parte Cobb [1995] COD 126

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Fairland University v National Council For Higher Education (NCHE) (Constitutional Petition No. 6 of 2015) [2023] UGCC 95 (17 March 2023)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.