Wakilii

Thugitho v Nebbi Municipal Council (MISCELLANEOUS CIVIL APPLICATION No. 0015 OF 2017)

High Court · [2017] UGHCCD 94 · 2017 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Judicial review application seeking certiorari and prohibition to quash the respondent's decision to suspend the applicant from the position of Acting Town Clerk and order him to refund funds.
Decision
Applicant restored to position of Acting Town Clerk and Accounting Officer; respondent's decision to remove him from office quashed as ultra vires and contrary to natural justice.

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Holding

The High Court held that Nebbi Municipal Council acted ultra vires and in breach of natural justice when it purported to remove the applicant from his position as Acting Town Clerk and Accounting Officer. Under the Constitution and the Local Governments Act as amended in 2010, only the Public Service Commission has authority to remove a municipal Town Clerk from office. The Council exceeded its statutory power, which is limited to recommending removal on specified grounds. Further, the Council violated natural justice by failing to give the applicant advance notice of the accusations or adequate opportunity to defend himself. The decision was also unreasonable because the Council invoked Public Finance Management Act provisions requiring prior ministerial inquiry, which had not occurred.

Outcome

Applicant restored to position of Acting Town Clerk and Accounting Officer; respondent's decision to remove him from office quashed as ultra vires and contrary to natural justice.

Facts

The applicant was appointed Acting Town Clerk of Nebbi Municipality by the Ministry of Local Government and subsequently appointed Accounting Officer by the Ministry of Finance for Financial Year 2016/17. At a Council meeting on 22 December 2016, the respondent resolved to suspend the applicant and order him to refund shs. 38,360,000/= allegedly owed by a company, Almuntu Investments Limited, which had been awarded a revenue collection contract. The Speaker declared the office of Town Clerk vacant and stated it would be occupied by a Divisional Town Clerk. The money in question arose from a contract to manage and collect revenue from markets within the Municipality that Almuntu Investments Limited had been awarded but never signed. The company remitted only shs. 10,000,000/= and issued a dishonoured cheque for shs. 30,000,000/=. The Council cited section 80(1) of the Public Finance Management Act, 2015 as authority for ordering the applicant to remain out of office until recovery of the funds. The applicant had been on compassionate leave when the contract was terminated.

Issues

  1. Whether the impugned decisions to remove the applicant from office as Acting Town Clerk and Accounting Officer involved any illegality, specifically whether the respondent acted ultra vires in purporting to remove the applicant from office.
  2. Whether the proceedings leading to the resolution directing the applicant to remain out of office until he recovers shs. 38,360,000/= involved any procedural irregularity or breach of the rules of natural justice.
  3. Whether the decision requiring the applicant to remain out of office until he recovers the sum of shs. 38,360,000/= was irrational or unreasonable in the Wednesbury sense.
  4. Whether the applicant is entitled to the remedies sought, including certiorari, prohibition, and mandatory injunction.

Orders

  • Application allowed with costs to the applicant.
  • Order of certiorari issued quashing the Council proceedings and the resolution which purported to remove the applicant from the office of Acting Town Clerk and Accounting Officer of the Municipality.
  • Order of prohibition issued restraining the respondent from appointing anyone other than the applicant as holder of the office of Acting Town Clerk of the Municipality, until the statutory procedure for declaring the office vacant is complied with.
  • Mandatory injunction issued requiring the respondent to restore the applicant or alternatively allow the applicant to resume his duties as Acting Town Clerk and Accounting Officer of the Municipality.

Rules and key headnotes

Administrative Law — Judicial Review — Illegality — Ultra Vires — Authority to Remove Municipal Town Clerks from Office
Under Article 200(4) of the Constitution of the Republic of Uganda as amended in 2005 and section 68 of the Local Governments Act as amended in 2010, the power to appoint, remove, and exercise disciplinary control over municipal Town Clerks is vested in the Public Service Commission, not in the Municipal Council. A Municipal Council's authority is limited to recommending removal to the Public Service Commission on specified grounds; it has no power to suspend, direct to step aside, or otherwise remove a Town Clerk from office.
Administrative Law — Judicial Review — Illegality — Ultra Vires — Concurrent Roles as Town Clerk and Accounting Officer
Where a Town Clerk is also appointed as an Accounting Officer by the Secretary to the Treasury under section 11(2)(g) of the Public Finance Management Act, 2015, disciplinary control over the individual in their capacity as Accounting Officer vests in the Secretary to the Treasury by virtue of section 24 of the Interpretation Act. A Municipal Council has no authority to suspend or remove the individual from this statutory role.
Administrative Law — Judicial Review — Procedural Impropriety — Natural Justice — Right to be Heard
In quasi-judicial proceedings with the potential of dismissal and affecting the livelihood of an employee, the principles of natural justice apply. Natural justice requires that the person accused must know the nature of the accusation made; be given adequate time and opportunity to state his or her case and prepare a defence; and the tribunal must act in good faith. A decision reached in contravention of the rules of natural justice is void ab initio.
Administrative Law — Judicial Review — Procedural Impropriety — Notice and Fair Hearing — Removal from Office
Before a Municipal Council may recommend the removal of a Town Clerk, section 68(3) of the Local Governments Act (as amended) requires the Council to put its allegations in writing to the Town Clerk, who must then have the right to defend himself or herself before the Council. A resolution removing a Town Clerk from office arrived at without prior written notice of the accusations and without adequate opportunity to respond constitutes a violation of natural justice and renders the decision void.
Administrative Law — Judicial Review — Irrationality — Recovery of Public Funds — Prerequisites under Public Finance Management Act
Under section 80(1) of the Public Finance Management Act, 2015, before a public officer can be held liable to refund a loss or deficiency in public money, the Minister of Finance must conduct a due inquiry and be satisfied that the negligence or misconduct of the public officer caused or contributed to the loss or deficiency. A decision requiring an Accounting Officer to refund money without a prior ministerial inquiry or proof of loss caused by negligence or misconduct is unreasonable and does not fall within the range of acceptable outcomes defensible in respect of the facts and law.
Administrative Law — Judicial Review — Remedies — Certiorari — Grounds for Quashing Administrative Decisions
Certiorari lies to quash the decisions of an inferior court, tribunal, or public authority where such decisions are made illegally, in breach of natural justice, or in excess of jurisdiction. Where a public authority purports to remove an officer from office without legal authority to do so and without complying with natural justice, an order of certiorari will issue to quash the impugned decision and any consequential orders.
Employment & Labour — Local Government Employment — Disciplinary Control — Statutory Procedure for Removal of Municipal Town Clerks
Section 68 of the Local Governments Act (as amended by Act No. 16 of 2010) establishes a comprehensive statutory procedure for the removal of a municipal Town Clerk. The procedure requires: (i) a council resolution supported by two-thirds of members recommending removal on specified grounds; (ii) prior written notice to the Town Clerk with the right to defend before the Council; (iii) interdiction by the Chief Administrative Officer; (iv) investigation by the District Service Commission; and (v) ultimate decision by the Public Service Commission, subject to appeal. Failure to comply with this statutory procedure renders any purported removal ultra vires and void.

Legislation cited (31)

Cases cited (23)

  • Associated Provincial Picture Houses Limited v. Wednesbury Corporation [1948] 1 KB 223
  • Wheeler v. Leicester City Council [1985] 2 ALL ER 1106
  • Regina v. Hull University Visitor, Ex parte Page [1993] AC 682
  • Attorney General v. Great Eastern Railway Co. (1880) 5 AC 473
  • Kanda v. Government of the Federation of Malaya [1962] AC 322
  • R v. Commissioner for Racial Equality ex parte Hellingdon LBC [1982] AC 779
  • R v. The Archbishop of Canterbury [1944] 1 KB 282
  • Board of Education v. Rice [1911] AC 179
  • Ceylon University v. Fernando [1960] 1 WLR 223
  • Re Gregson (1894) 70 LT 106
  • Rex v. Bodmin Justices [1947] KB 321
  • Goold v. Evans [1951] 1 TLR 1189
  • Rex v. Architects Registration Tribunal [1945] 61 TLR 445
  • B. Surinder Singh Kanda v. The Government of The Federation of Malaya [1962] AC 322
  • James Edward Jeffs and others v. New Zealand Dairy Production and Marketing Board and others [1967] AC 551
  • Byrne v. Kinematograph Renters Society Ltd [1958] 1 WLR 762
  • Isodo Abdul v. Arua District Local Government (Miscellaneous Application No. 58 of 2004)
  • Matovu and two others v. Sseviiri and another [1979] HCB 174
  • Kamurasi Charles v. Accord Properties Limited (Civil Appeal No. 3 of 1996)
  • Short v. Poole Corporation [1926] Ch 66
  • R (Daly) v. Secretary of State for Home Department [2001] 2 AC 532
  • John Jet Mwebaze v. Makerere University Council and two others (Miscellaneous Application No. 353 of 2005)
  • Nichol v. Gateshead Metropolitan Borough Council (1988) 87 LGR 435

Full judgment

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Thugitho v Nebbi Municipal Council (MISCELLANEOUS CIVIL APPLICATION No. 0015 OF 2017) [2017] UGHCCD 94 (20 July 2017)
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