Makerere University v Prof. John Jean Barya & Others (Miscellaneous Application 639 of 2024) [2024] UGHCCD 179 (1 November 2024)

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

[CIVIL DIVISION]

CONSOLIDATED MISC. APPLICATION NO. 639 OF 2024

(ARISING OUT OF MISCELLANEOUS CAUSE NO. 118 OF 2024)

$\mathbf{AND}$

MISC. APPLICATION NO. 640 OF 2024

(ARISING OUT OF)

MISC. APPLICATION NO. 117 of 20204

MAKERERE UNIVERSITY::::::::::::::::::::::::::::::::::::

VERSUS

- 1. MAKERERE UNIVERSITY STAFF TRIBUNAL - 2. PROF JOHN JEAN BARYA]:::::::::::::::::::::::::::::::::::

$\Delta$ ND

MAKERERE UNIVERSITY::::::::::::::::::::::::::::::::::::

VERSUS

3. MAKERERE UNIVERSITY STAFF TRIBUNAL

4. ASSOCIATE PROF WILFRED LAJUL:::::::::::::::::::::::::::::::::::

Before: Hon. Justice Dr Douglas Singiza Karekona

RULING

1 Introduction

The procedure for challenging public bodies' decisions has strict timelines, a fact that places considerable pressure on trial courts and may leave them little time to attend to other cases on their merits. It is hence important that courts devise means by which interlocutory applications can be disposed of expeditiously. One such means is to limit how much parties in motions like the one before this court are allowed to argue when clearly stated precedents and principles are already in place and there is almost nothing a trial court could add to them. A simple ruling of, say, 500 words would suffice in allowing such an application or not.

In this ruling, however, I have not adopted this proposal, and for three reasons. First, I need to demonstrate why arguments that repeat known principles at length can be time-wasting; secondly, there is a need to separate the parties' averments that touch on the main applications from those that are relevant exclusively to the motions before me; and, lastly, this is congruent with the decision to consolidate all the related applications.

1.1 Representation

At the commencement of the hearing of the consolidated applications, the applicant was represented by the *Makerere University Directorate of Legal Affairs*, Prof John Jean Barya was represented by *M/s Barya, Byamugisha & Co Advocates,* and Associate Prof Wilfred Lajul, by *M/s Paul Tusibira & Co Advocates*. As is the custom, let me acknowledge that I appreciate the quality of the pleadings and arguments, and note that if any of these arguments have not been considered, it is not out of disrespect but due to space constraints.

2 Background

The Makerere University Staff Appeals Tribunal (the Tribunal) made a decision in favour of Prof John Jean Barya on 4 June 2021 against the decision of the Makerere University Appointments Board (Appointments Board) vide *Prof John Jean Barya v Makerere University* Staff Appeals No. 6 of 2021*.* The Appointments Board's decision that had rejected Prof Barya's post-retirement contract was set aside in terms of section 57(2) of the University and Other Institutions Act (UOTIA) with the following specific orders:

1) A declaration that the Appointments Board's decision was improper and unfair when read against the Makerere University Human Resource Manual.

- 2) An order compelling the Appointments Board to reconsider Prof Barya's postretirement contract within 30 days of the date of its ruling. - 3) An award of UGX 100,000,000 (at the exchange rate of \$1 to UGX 3,675) as general damages to Prof Barya payable within three months of the date of the ruling.

The present motion now seeks to restrain the implementation of the Tribunals' decision until the determination of the main application,¹ and is hinged on numerous grounds. In this ruling, I have elected to discuss only those grounds that have not been canvassed in the main application. Three pertinent points are made:

- 1) that Miscellaneous Application No. 118 of 2024 raises a *prima facie* case with a high probability of success; - 2) that Makerere University will suffer harm that no damages could atone if the restraint is not granted; and - 3) that on the balance of convenience, the application should in fact be granted.

2.1 Deposition in support

The motion is supported by the deposition of Mr Yusuf Kiranda, the University Secretary and the Accounting Officer. Most of the averments in his deposition are similar to what he speaks to in the main application. Thus paragraphs 1–15 of his deposition need not be repeated. Suffice it to say that Mr Kiranda places emphasis on the following: that the motion before me has a high chance of success; that there is a serious risk of harm that could easily occur if the restraining orders are not considered; and that, in any case, the latter is on balance a good thing to do. The fact that the motion was brought without delay is pointed out as a reason why this court should allow it readily and in fairness. The motion pleads all the documents that are relied on in the main motion, which in the view of this court makes it unnecessary at this stage to dwell on them – those documents could be scrutinised exhaustively later in the main motions.

2.2 Deposition in reply to the motion

The motion relies on the deposition of Prof Barya, who touches on a number of factual narrations too, as summarised here. First, Prof Barya has a long history of teaching and research at Makerere University. Secondly, the rules upon which the main motion seeks to rely to impeach the Tribunal's decision are inoperative in the complaint before this court. The reason

¹ This motion was brought under the provisions of sections 37 and 42(1) of the Judicature Act Cap 1, section 98 of the Civil Procedure Act Cap 282, Order 41 Rule 2, 3 and 9 of the Civil Procedure Rules SI 71-1.

for this supposition is that those very rules were made long after the hearing that resulted in the impugned decision.

Reference was made to 2 November 2021 as the date of filing the appeal, 31 March 2023 as the date of the hearing of the appeal, and 4 June 2024 as the date of making the impugned decision. Thus the rules relied on by Makerere University could not have retrospectively applied to the complaint before this court. I also notice that paragraphs 4–10 of Prof Barya's deposition touch extensively on the merits of the main motion. It is again proposed that the parties steer clear of averments that dwell overmuch on the merits of the case.

Aside from the two elements above, Prof Barya takes the view that a number of grounds in the motion are misleading for the following reasons:

- 1) It is improbable that the motion in its present state could ever succeed, considering that the impugned decision was based on the Makerere [University] Human Resource Manual 2009 as amended, - 2) Makerere University's stature looms large, to the extent that it could never suffer any harm that cannot be atoned by money. - 3) A restraining order would be an inconvenience, given the time that has gone by since the complaint arose to the time that the Tribunal made the challenged decision. - 4) Thus the balance of convenience tilts in favour of not granting the restraining orders, given that Prof Barya would continue at any event to teach young Ugandan learners, a task which he has executed for the last 30 years. - 5) The award given to him by the Tribunal is a mere token for the suffering that Makerere University has caused him and nothing else.

Prof Barya makes further strong averments, which I have redacted heavily:

The motion is not well intentioned, considering that a related motion that concerned the interim restraining orders was never served on him,

- The motion is its present form undermines the Tribunals' independence in terms of article 128(1) of the Constitution² and section 51(1) of the Judicature Act which grants immunity intended to foster the independence of the Tribunal as a quasi-judicial body. 3 - The motion is an abuse of process in terms of section 56(4) of UOTIA, considering that the Tribunal is an organ of Makerere University whose supposed decision [in terms of section 57 of UOTIA] cannot be challenged in a court of law by the very university.

In rejoinder, Mr Kiranda describes part of Prof Barya's deposition as false and challenges the assertion that the university's rules and policies are usually published in the gazette as incorrect. Thus, the contention that these rules could not have been applicable to the Tribunal at the time of making the challenged decision is incorrect. That said, Mr Kiranda insists that there are triable issues that will not be determined easily unless a restraining order is granted first.

2.3 Consolidation of Associate Prof Wilfred Lajul's motions

On the court's own motion, and in terms of Order 11 Rule 1 and 2 of the CPR, I elect to consolidate Miscellaneous No. 117 and all the applications arising out of it with the present motion under consideration. In making this decision, I have been guided by the fact that the complaint by Associate Prof Wilfred Lajul which gave rise to the separate motions before this court deal with similar questions. While Prof Barya' post-retirement contract was rejected outright by the Appointments Board, Prof Lajul's post-retirement contract was initially considered albeit for only six months. His effort to renew that very contract was then rejected by the Appointments Board, hence his appeal before the Tribunal that resulted in the impugned decision. In order to avoid a multiplicity of ligation, it is my view that consolidation would be appropriate. ⁴ Arguably, the decisions made in Miscellaneous Applications No. 118 and No. 639 of 2024 can ably dispose of Miscellaneous Applications No. 640 and No. 117 of 2024.

2.4 Issues for determination

This motion was prosecuted by way of written submissions in which both sides made detailed arguments that I do not think need elaborate discussion. I hold this view because the principles

² Article 28(1) of the Constitution provides that '[i]n the determination of civil rights and obligations or any criminal charge, a person shall be entitled to a fair, speedy and public hearing before an independent and impartial court or tribunal established by law'.

³ Section 46(1) of the Judicature Act provides that '[a] judge or commission or other person acting judicially shall not be liable to be sued in any civil court for any act done or ordered to be done by that person in the discharge of his or her judicial functions whether or not within the limits of his or her jurisdiction'.

⁴ The guidance in the decision of *Patrick Nkoba v Rwenzori Highland Tea Co & Another* (1999) Kalr 776 at 778 per Bamwine Ag J is that a trial court always needs to exercise caution before consolidating suits (applications) in cases where there are extreme differences in the defences and claims.

that are ordinarily applicable in a motion like the one before me have been discussed in different courts and it is unnecessary to repeat them in too much detail. Arising from the arguments, the following two major issues emerge as appropriate for determination:

- *1) Whether the preliminary objections raised can better be tried in the main applications.* - *2) Whether the applications before me can be granted.*

2.5 Arguments by both parties

Counsel for Makerere University highlights the discretionary power of courts in determining such motions, and thus correctly points out that restraining orders are in the main intended to preserve the status quo pending the disposal of the main motions.⁵ The argument then delves deep into the usual grounds that a court must consider and which I summarise as follows: a *prima facie* case, a risk which cannot be atoned by monetary compensation, and if these two considerations cannot be proved, then the fallback position is a consideration of a balance of convenience.⁶

It is interesting to note that counsel for Makerere University took the time to define for this court what the phrase '*prima facie* case with a probability of success' means, citing many authorities in this regard. ⁷ The phrase 'irreparable injury' was also defined, with a lot of time having been taken to cite precedents that explain what it could probably mean. ⁸ That said, counsel for Makerere University invited this court to consider the term 'harm' in the context of the motion before me as including three things:setting a bad precedent, fettering discretion, and granting reliefs that are against the rules of procedure. Aware that there is a final fallback argument should the three considerations fail, it was Makerere University's argument that the balance of convenience must then look at which party would be injured more if the restraining orders were granted.⁹

⁵ Counsel relied on *Nzeyi v Bank of Uganda and Another* CA No. 1 of 2013 per Kasule JA. So detailed were their arguments on this point that even obvious phrases such as 'status quo' were defined while relying on the decision of *Daniel Mukwaya v Administrators General* CS No. 6360 of 1993 and *Erisa Rainbow Musoke v Ahamada Kezala* [1987] HCB 81.

⁶ Reliance is made on the decision of *Robert Kavuman v Hotel International* SC No. 8 of 1999.

⁷ For example, *Halsbury's Law of England* 4 th ed vol 24 para 858, *American Cyanimide v Ethicon* (1975) 1 All ER per Diplock, and *Victor Constructions Works Ltd v Uganda National Roads Authority* MA No. 601-2010 are cited to drive home the point.

⁸ For instance, the case of *City of Kampala v Donozio Musisi Kekyaya* CA No. 30-2000 explains the notion as loss that cannot be compensated with money. Also relied on in *American Cyanimide* (*supra*) as well as *Behanga Domaro and Another v Attorney General* Constitutional Petition No. 73-2010.

⁹ The decision in *Kiyimba*-*Kaggwa V Hajji Katende Abdunasser* [1985] HCB 43 is also cited.

2.6 Arguments by Prof Barya

Counsel for Prof Barya begins by giving a clear history of the complaint before this court, after which four preliminary objections are advanced:

- 1) The Tribunal is not a legal person capable of being sued, but rather an organ of Makerere University. - 2) It is an abuse of legal process to proceed against a non-legal entity. - 3) The motion relies on untrue depositions in so for as those averments reject the true versions of events that led to the challenged decision. 10 - 4) The motion is a disguised appeal that seeks prerogative reliefs and was filed deliberately to bypass clear legal provisions that do not permit Makerere University to challenge the Tribunal's decision.¹¹

I note that the rest of the arguments largely reiterate the inverse arguments of Makerere University on temporary injunctions, except that a few other distinct assertions are made. These are that it is improbable that the motion in its present state could ever succeed, given the lies that surround it; and that Makerere University could never suffer any harm that cannot be atoned by monetary compensation. Prof Barya makes the point that social security benefits, as well as earnings from his legal practice and research work, are at this disposal. All these sources of income, together with his asserts, could be used to pay back the awarded damages should the main motion succeed. In a manner that was a bit unclear, counsel for Prof Barya then relies on decisions that deal with stay of execution to argue that they are also applicable in motions of this nature.¹²

3 Dealing with preliminary objections

Before I make the final determination in this ruling, it is pertinent to deal with the major contentions of Prof Barya's counsel (which are also separately reiterated by Prof Lajul). These are that the main applications directly undermine the independence of the Tribunal and that they are also a disguised way to bypass clearly stated legal provisions that bar Makerere

¹⁰ Counsel relies on the decisions of *Bet City (u) Ltd and Another v Swangz Avenue Ltd* MA No 117-2020 and *Rutuku Francis and others v Eliphas Ndamagye* CA No 111-2017 where the courts rejected motions that were anchored on proven lies.

¹¹ Section 56(4) of UTIOA is cited.

¹² See *New Vision Publishing Corporation and 2 Others v Peter Kagwa* 2007 (KSLT 391-392), in which the requirement of due performance in a stay of execution took into account the economic strength of New Vision, as well as *Fredrick Zabwe v Mars Trading Co and Another* (1998 KALR p. 57), which discusses the term 'irreparable damage' with reference to the inability to atone for an injury.

University from approaching this court by away of appeal; thus, given that these applications hinge on untrue depositions, they must be wholly rejected. I propose that these objections should rather be framed as triable issues in the main applications on which all the parties may then present more evidence and arguments.

3.1 Merits of the applications

The principles governing applications of this nature are well settled thus: (1) that the main application has a significant chance of success; and (2) that there is a risk of injury which may not be atoned by compensation. Moreover, the grant of temporary injunctions is discretionary in nature, ¹³ which on the balance, may then be considered. In light of the averments that the impugned decisions are likely to set bad precedents (in so far as they may fetter the Appointments Board's decision making power) I hereby grant the orders prayed for in the two consolidated applications, with costs to await the outcome of the main application(s).

Dr Douglas Singiza Karekona

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Judge

1 st November 2024

*¹³ Yahaya Kariisa v Attorney General & Another*, SCCA No.7 of 1994 [1997] HCB 29.