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Guarantee Trust Bank (U) Limited v Acaye (CIVIL APPEAL NO 51 OF 2018)

High Court · [2020] UGHCCD 190 · 2020 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from the decision of the Equal Opportunities Commission delivered on March 28, 2018
Decision
Appeal substantially allowed. Finding of discrimination against GTB set aside. Finding of discrimination by Bank of Uganda affirmed. Awards of damages against GTB set aside.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court held that Bank of Uganda, not GTB, denied the Respondent equal opportunity to employment by erroneously requiring approval for an Internal Audit Manager position not authorised under the Financial Institutions Act 2004. GTB acted in compliance with a Bank of Uganda circular and could not be held liable for discrimination. The Commission's awards of special damages (for lost salary) and general damages against GTB were set aside as GTB was not the party responsible for the discriminatory treatment. The appeal substantially succeeded.

Outcome

Appeal substantially allowed. Finding of discrimination against GTB set aside. Finding of discrimination by Bank of Uganda affirmed. Awards of damages against GTB set aside.

Facts

Acaye Fred P'Avuni was appointed Internal Audit Manager at FINA Bank Uganda Limited (later acquired by GTB) on July 31, 2013. GTB sought Bank of Uganda's approval for the appointment pursuant to a Bank of Uganda circular dated April 14, 2005 requiring vetting of senior bank officers. Bank of Uganda twice declined to approve the appointment (on October 14, 2013 and February 17, 2014) without giving reasons, advising GTB to look for 'a more suitable person'. GTB had verified Acaye's qualifications and obtained clean confidential reports from his former employers. After 19 months of service, GTB terminated Acaye's employment on February 28, 2015 following Bank of Uganda's sustained refusal to approve. Acaye filed a complaint with the Equal Opportunities Commission on March 4, 2015, alleging discrimination on grounds of ethnicity. The Commission found in favour of Acaye and ordered GTB to pay special damages of UGX 450 million and general damages of UGX 50 million. GTB appealed.

Issues

  1. Whether the Equal Opportunities Commission had jurisdiction to entertain the complaint filed by the Respondent.
  2. Whether the Commission hearing was conducted with the requisite quorum.
  3. Whether the Bank of Uganda and/or GTB discriminated against and marginalised the Respondent on the basis of ethnicity.
  4. Whether Bank of Uganda's disapproval of the Respondent's appointment as Internal Audit Manager lacked legality.
  5. Whether the Commission had power to award special and general damages.
  6. Whether the Commission erred in ordering GTB to remit NSSF contributions.
  7. Whether the termination of the Respondent's employment was wrongful.

Orders

  • Appeal substantially succeeds.
  • The finding that GTB discriminated against the Respondent is set aside.
  • Each party shall bear the costs of the appeal.
  • Bank of Uganda shall pay the Respondent costs of the proceedings before the Commission.
  • The security deposited in court on July 9, 2018 shall be returned to the Appellant.

Rules and key headnotes

Administrative Law — Regulatory Powers — Ultra Vires Acts — Bank of Uganda exceeding statutory mandate
Where the Financial Institutions Act 2004 empowers Bank of Uganda to approve appointments of External Audit Managers under section 62(2) but makes no provision for approval of Internal Audit Manager appointments under section 61, the Bank of Uganda acts ultra vires when it requires and withholds approval for an Internal Audit Manager appointment.
Administrative Law — Regulatory Circulars — Subordinate to Statute
A regulatory circular that purports to extend a regulator's statutory powers beyond what the enabling statute authorises is ultra vires the Act and cannot impose binding legal obligations on regulated entities.
Human Rights — Discrimination — Burden of Proof — Inference from Circumstantial Evidence
Discrimination on grounds of ethnicity may be proved by inference from a sequence of events, including unexplained administrative decisions, failure to provide reasons where qualifications are verified, and hearsay evidence of discriminatory statements, where such evidence taken together supports the conclusion that the decision was motivated by ethnic considerations.
Administrative Law — Equal Opportunities Commission — Jurisdiction — Power to Award Damages
The Equal Opportunities Commission's power under section 14(4) of the Equal Opportunities Commission Act to 'hear and determine complaints' of discrimination includes the power to grant effective remedies including monetary awards. To deny such power would require complainants to pursue duplicative proceedings in courts of law for redress.
Administrative Law — Equal Opportunities Commission — Jurisdiction — Limits — Employment Contract Disputes
The jurisdiction of the Equal Opportunities Commission is limited to acts, omissions, practices, or customs that constitute discrimination or marginalization under the Equal Opportunities Commission Act. The Commission exceeds its jurisdiction when it determines liability for breach of contract of employment, which falls under the Employment Act.
Employment & Labour — Vicarious Liability — Third Party Actions — Employer Not Liable for Regulator's Ultra Vires Acts
An employer who terminates an employee's contract in compliance with a regulator's ultra vires directive cannot be held liable for discrimination or marginalization where the employer acted in good faith reliance on a regulatory circular and conducted its own due diligence verifying the employee's qualifications.
Administrative Law — Equal Opportunities Commission — Quorum — Validity of Proceedings
Section 13(5) of the Equal Opportunities Commission Act provides for a quorum of three members for a meeting of the Commission without distinguishing between complaints hearings and ordinary meetings. A hearing conducted by three members satisfies the statutory quorum requirement.

Legislation cited (10)

Cases cited (2)

  • Fr. Narsensio Begumisa & three others v Eric Tebagaga (Supreme Court Civil Appeal No. 17 of 2002)
  • Haji Musa Hasahya v Owori & Co. Advocates (High Court Civil Appeal No. 187 of 2014)

Full judgment

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

Guarantee Trust Bank (U) Limited v Acaye (CIVIL APPEAL NO 51 OF 2018) 2020 UGHCCD 190 (22 July 2020)
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.