Wakilii

Marvin Baryaruha v Uganda (Miscellaneous Cause No.149 of 2016)

High Court · [2019] UGHCCD 310 · 2019 Judicial Review Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for judicial review to quash findings and recommendations of a Commission of Inquiry
Decision
Findings and recommendations of Commission of Inquiry quashed in respect of the applicant

Observed later treatment

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Holding

The High Court granted judicial review, declaring null and void the findings and recommendations of the Commission of Inquiry into Uganda National Roads Authority against the applicant. The court held that the Chairperson exhibited actual bias through personal attacks and insults, three Commissioners had conflicts of interest arising from prior dealings with UNRA, and the applicant was denied a fair hearing through inadequate notice and no opportunity to respond to allegations on multiple projects for which he was condemned.

Outcome

Findings and recommendations of Commission of Inquiry quashed in respect of the applicant

Facts

The applicant, a former legal counsel at Uganda National Roads Authority (UNRA), challenged findings and recommendations of a Presidential Commission of Inquiry into Allegations of Mismanagement, Abuse of Office and Corrupt Practices in UNRA. The Commission was chaired by Hon. Lady Justice Catherine Bamugemereire with several Commissioners including Eng Patrick Rusongoza, Abraham Nkata and Richard Mungati. The applicant was summoned to appear before the Commission on limited occasions and received witness summonses specifying only the Tororo-Mbale-Soroti Road Project. The Commission's report recommended prosecution of the applicant on multiple projects, including the Hoima-Kaiso-Tonya Road, Mbarara-Kikagate Road, Lake Kyoga Ferry procurement, and UNRA office space procurement. The applicant alleged he was insulted and attacked by the Chairperson, denied adequate notice of allegations, and denied opportunity to respond on projects for which he was condemned. The Commission's report was submitted to the President in May 2016 and had not been made public.

Issues

  1. Whether the Members of the Commission and in particular the Chairperson of the Commission were biased towards the Applicant
  2. Whether the Applicant was accorded a fair hearing on the various allegations made against him
  3. Whether the Commission followed principles of natural justice in making its findings and recommendations in relation to the Applicant
  4. Whether the findings and recommendations of the Commission in respect to the Applicant were unreasonable and irrational
  5. Whether in making its findings and recommendations, the Commission complied with the relevant law, specifically the provisions of Legal Notice No. 4 of 2015 and the Commissions of Inquiry Act Cap 166
  6. What remedies are available to the parties

Orders

  • A Declaratory Order is issued that the Findings and Recommendations contained in the Commission of Inquiry Report into Allegations of Mismanagement, Abuse of Office and Corrupt Practices in the Uganda National Roads Authority against the applicant arrived at in breach of the right to be treated justly and fairly are null and void.
  • The applicant is awarded costs of the application.

Rules and key headnotes

Judicial Review — Bias — Test for Actual and Apparent Bias
In determining bias, the test is whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. The court should look at the impression which would be given to the other party — the test is not what actually happened but the substantial possibility of that which appeared to have happened. Even if the decision maker was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias, then the decision would be affected.
Bias — Personal Attacks and Insults by Tribunal Member
Statements by a tribunal chairperson that attack, insult and abuse a person appearing before the tribunal constitute bias. Where a chairperson states that the applicant's fate has been predetermined and makes derogatory statements about the person's character and wealth, a reasonable person would apprehend that the commission of inquiry is biased. Such statements show an appearance of bias and are not merely injudicious and insensitive but bound to be interpreted as gratuitous insults.
Bias — Conflict of Interest — Prior Dealings with Subject of Inquiry
Members of a commission of inquiry who had previous private dealings with the organisation under investigation in different capacities may be found to have a conflict of interest that compromises their impartiality. Where commissioners worked as consultants on projects that are subject of the inquiry, they could not be weighed on the same scale for impartiality as commissioners with no prior involvement. Because of prior involvement or connection with the matter, the fair-minded observer would apprehend bias, even if the commissioners applied their minds properly.
Right to Fair Hearing — Notice of Allegations
The right to a fair hearing under Article 42 of the Constitution requires that a person be given prior notice of allegations against him. Giving a party notice is the starting point of any hearing — unless a person knows the formulation of subjects and issues involved, he cannot defend himself properly. The test of adequacy of notice is whether it gives sufficient information and material so as to enable the person concerned to put up an effective defence. The adequacy of notice must be decided with reference to the nature of the inquiry and the terms of reference upon which it was operating.
Commissions of Inquiry — Duty to Act Fairly — Procedural Fairness
While commissions of inquiry have wide powers to regulate their proceedings and are not bound by strict rules of evidence, they are subject to an overriding duty of fairness. Where a commission's terms of reference include power to recommend prosecution, the commission must afford concrete and cogent procedural protections. A person whose conduct is the subject of inquiry is entitled under section 12 of the Commissions of Inquiry Act to be represented by an advocate at the whole of the inquiry, which presupposes that the person must know the case against him and have opportunity to prepare a defence.
Fair Hearing — Right to Know Evidence and Rebut Adverse Material
Every person appearing before an administrative authority has the right to know the evidence against him and nothing should be used against the person which has not been brought to his notice. It is not enough that a party should know the adverse material against himself but it is further necessary that he is given an opportunity to rebut the evidence. The right to rebut adverse evidence presupposes that the person has been informed about the evidence against him.
Judicial Review Remedies — Effect of Procedural Impropriety
The right of a man to be given a fair opportunity of hearing what is alleged against him and of presenting his own case is so fundamental to any civilised legal system that it is to be presumed that Parliament intended that a failure to observe it should render null and void any decision reached in breach of this requirement. Where a decision is arrived at in violation of the rule against bias or without affording the victim an opportunity to be heard, such decision is voidable and the court may declare it null and void.

Legislation cited (7)

Cases cited (50)

  • John Jet Tumwebaze vs Makerere University Council & 2 Others Misc Cause No. 353 of 2005
  • DOTT Services Ltd v Attorney General (Miscellaneous Cause No. 125 of 2009)
  • Balondemu David v The Law Development Centre (Miscellaneous Cause No. 61 of 2016)
  • Commissioner of Land v Kunste Hotel Ltd [1995-1998] 1 EA (CAK)
  • HCT-00-CC-CA-128/2011 Seyani Brothers & Co. Ltd versus Cassia Limited
  • EPA No. 04/2011 Obiga Mario Kania versus Electoral Commission
  • SC Crim. Appeal No. 33/91, Professor Isaac Newton Ojok versus Uganda
  • House of Lords Session 1998-99 Re Pinochet
  • Prof. George W. Kakoma versus AG HCCS No. 197/2008
  • HC OS No.09/2005; Basajjabalaba Hides & Skins Limited versus Bank of Uganda & Anor
  • EPA No. 44/2011 Kikulukunyu Faisal versus Muwanga Kivumbi
  • Lawai v Northern Spirit Ltd [2003] UKHL 35
  • Porter v Magill (2002) 2 AC 357
  • Gilles v Secretary of State for Work and Pensions [2006] 2 UKHL
  • Johnson v Johnson (2000) 200 CLR 488
  • Locabail (UK) Ltd V Bayfield Properties Ltd & Anor [2000]2 WLR 870
  • R (Island Farm Development) v Bridgend County Be (2006) EWHC 2189
  • Eng. Luyimbazi SSali & Others v Attorney General (Miscellaneous Cause No. 156 of 2016)
  • Ojengbede Vs Esan & Anor () 8NSCQR 461
  • Dott Services Ltd & Anor v Attorney General (Miscellaneous Cause No. 137 of 2016)
  • George vs McIntyre AG 2003 HC 10
  • Twinomugisha Moses v Rift Valley Railways (U) Limited (High Court Civil Suit No. 212 of 2009)
  • Election Petition Appeal No. 04/2009; Bakaluba Peter Mukasa versus Nambooze Betty Bakireke
  • Amuron Dorothy v Law Development Centre (Miscellaneous Cause No. 042 of 2016)
  • Civil Appeal No. 56/1981 Charles Oloo versus Kenya Posts and Telecommunications
  • Annebritt Aslund v Attorney General (Miscellaneous Cause No. 441 of 2004)
  • Kampala University v National Council for Higher Education (Miscellaneous Cause No. 053 of 2014)
  • Metropolitan Properties Ltd vs Lannon [1968] 3 All ER 304
  • Mahon Air New Zealand [1984] AC 808
  • Beno v Canada (Commissioner and Chairperson, Commission of Inquiry into the Department of Canadian Forces to Somalia,) [1997] 2 F.C
  • Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System), [1997] 3 S.C.R. 440
  • HTV Ltd vs Price Commission [1976] ICR 170
  • R v Thames Magistrates' Court ex p Polemis [1974] 1 WLR1371
  • Apiima Abel Onyancha v Kampala International University (Miscellaneous Cause No. 142 of 2018)
  • Bismillah Trading Ltd & Anor v KCCA (Miscellaneous Cause No. 23 of 2015)
  • Council of Civil Service Union & Ors vs Minister for Civil Service [1985] 1AC 374
  • Re- An Application by Bukoba Gymkhana Club [1963] EA 478
  • Redman vs Gaskin (1964) 8WIR 22
  • AG vs Independent Broadcasting Authority [1973] 1 QB 629
  • R vs Aston University Senate ex p Roffey [1969] 2 QB 558
  • R vs Secretary of State for Health ex p Furneaux [1994] 2 All ER 652
  • Metropolitan Properties Co. (F.G.C) Ltd v Lannon [1968] 3 All ER 304
  • O'Reilly v Mackman [1983] 2 AC 237
  • A-G v Ryan [1980] 718
  • Kamlesh Mansukhlal Damji Pattni and Goldenberg International Civil Application No. NAI 301 of 1999(115/99)(unreported)
  • Re Medicaments and Related Classes of Goods (No.2) [2001] 1 WLR 700
  • R v Kent police Authority ex p. Godden [1971] 2 QB 662
  • Uganda v Patricia Ojangole (Criminal Case No. 1 of 2014)
  • Federation of Railway Officers Association v Union of India (2003) 4 SCC 289
  • Hannam vs Bradford Corp [1970] 1 W.L.R 937

Full judgment

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Marvin Baryaruha v Uganda (Miscellaneous Cause No.149 of 2016) [2019] UGHCCD 310 (29 March 2019)
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.