High Court Establishes That In judicial review, Naming a Public Body Without Corporate Status is Not Fatal, It Can Be a Correctable Misnomer
- Waboga David
- May 11
- 8 min read
Area of Law: Civil Litigation and Judicial Review
Introduction
The High Court has clarified several procedural principles central to judicial review in litigation. The case arose from a disciplinary dispute involving a retired civil engineer dismissed from a public university.
While the substantive dismissal had been upheld by the University Staff Tribunal, the High Court addressed critical objections raised during the judicial review application.
These included whether an affidavit could be competently sworn by someone without formal legal authority, whether naming a public body lacking corporate status was fatally defective, and whether the application had been filed within the prescribed time
Facts of the Case
The applicant, a retired Civil Engineer formerly in Local Government, was appointed as Estates Officer at the respondent University on 20 November 2017, with effect from 1 December 2017. On 17 November 2021, a university-owned double-cabin vehicle (registration UG 7199M) was reportedly involved in an accident, allegedly caused by a university driver named Opito Thomas, who was said to be repairing the vehicle secretly without proper authorization.
Following the incident, the applicant was asked to provide an account of the accident on 24 November 2021. Upon submitting his report, he was suspended on the same day for 90 days on half pay. The disciplinary process proceeded swiftly thereafter. The applicant appeared before the University’s Top Management on 24 January 2022, where the driver testified against him.
The matter was then referred to the University Appointments Board, which scheduled a disciplinary hearing for 4 February 2022. Due to illness, the applicant could not attend that sitting but was given an opportunity to submit a written response. He did so on 17 February 2022 and appeared in person before the Board on 18 February 2022. Four days later, on 22 February 2022, the applicant received a dismissal letter dated 21 February 2022, citing gross neglect of duty and dishonesty.
Aggrieved by the decision, the applicant filed an appeal with the University Staff Tribunal on 3 March 2022. The Tribunal dismissed the appeal on 23 May 2022 and upheld the Appointments Board’s decision.
Applicant’s Arguments Before the Tribunal
The applicant raised several substantive and procedural grounds in his appeal.
1. Unlawful Procedures and Lack of Proper Charges
The applicant contended that he was subjected to a flawed disciplinary process. He argued that no formal charges were framed or communicated to him at the outset, and that the charges were never sanctioned by the Solicitor General as required by law.
He maintained that the first instance where the charges were clearly stated was in the letter dated 4 February 2022. The earlier suspension and invitations to disciplinary proceedings, he argued, were vague and did not disclose the case against him.
2. Improper Assignment of Duties
The applicant disputed the basis for the charge of gross neglect of duty. He asserted that the responsibilities in question did not fall within his job description, and that the duty to monitor and report vehicle accidents lay with the Transport Officer and the Estate Manager. He argued that he was wrongfully held accountable for duties that were not his.
3. Lack of Evidence
The applicant maintained that there was no credible evidence of either gross neglect of duty or dishonesty. He submitted that the key witness had fabricated testimony and that the driver, who failed in his own duty to report the accident, was not held accountable. He further insisted that the allegations of dishonesty, particularly the claim that he lied about the date of the accident, were not supported by reliable evidence.
4. Bias and Procedural Unfairness
A central pillar of the applicant’s argument was the alleged lack of impartiality in the disciplinary process. He claimed that three members of Top Management, who had participated in the investigations, also sat on the Appointments Board and defended their findings during the hearing. This, he argued, created a conflict of interest. He also alleged that he was harassed by the Board Chairman, who asked irrelevant questions, and that his written response was ignored or not given due consideration.
5. Remedies Sought
The applicant sought a range of remedies including: (i) setting aside of the dismissal; (ii) reinstatement to his job; (iii) lifting of the suspension; and (iv) costs, including a certificate for two counsel. He also made an additional claim for general damages in the sum of UGX 300 million for humiliation, reputational damage, and emotional distress.
Respondent’s Arguments (University)
The respondent University opposed the appeal and defended the disciplinary process.
1. Fair Hearing Was Accorded
The University argued that the applicant was fully aware of the case against him and had been given the opportunity to defend himself. It pointed out that the letter dated 11 February 2022 had clearly stated the charges, and that the applicant had appeared before both Top Management and the Appointments Board. He was also permitted to cross-examine witnesses and submit a written defence.
2. Substantive Justification for Dismissal
The respondent maintained that the applicant had misled the University about the date of the accident, claiming it occurred on 10 November instead of 17 November, and that he had improperly advised the driver to repair the vehicle secretly. These actions, the University submitted, amounted to gross neglect of duty and dishonesty.
3. Allegations of Bias Refuted
In response to the bias allegations, the respondent conceded that three members of Top Management were present during the Board’s proceedings but clarified that they were there in the capacity of presenters or prosecutors and did not take part in the deliberations.
The Board’s decision, the respondent emphasized, was made by majority vote. As for the questions regarding academic qualifications, the University argued they were relevant, particularly since it was noted that the applicant obtained a Master’s degree prior to earning a Bachelor’s.
Tribunal’s Findings and Decision
The Tribunal considered the submissions and evidence and framed the following issues:
Whether the conduct of the Appointments Board prejudiced the applicant;
Whether members of Top Management participated improperly in the Board’s decision;
Whether the Solicitor General’s input was required in disciplinary proceedings;
Whether there was sufficient evidence to justify the dismissal.
No Prejudice Found
The Tribunal held that the applicant was not prejudiced in the proceedings. It found that he had been given the opportunity to appear in person, make his defence, and cross-examine witnesses.
Although the written response was submitted during the hearing, the Tribunal found no evidence that it had been ignored or that this caused any unfairness. It noted that the written and oral submissions were largely consistent.
No Procedural Impropriety in Board Composition
The Tribunal acknowledged that some members of Top Management who participated in the investigations also attended the Board hearing. However, it accepted the University’s explanation that these members acted only as presenters and did not vote or deliberate on the final decision. The Tribunal was satisfied that the Board acted properly and by majority.
Sufficient Evidence to Support Dismissal
After reappraising the evidence, the Tribunal concluded that there was sufficient basis to support the findings of gross neglect of duty and dishonesty. Accordingly, it found no merit in the appeal.
Conclusion
The University Staff Tribunal dismissed the applicant’s appeal, upheld the Appointments Board’s decision to dismiss him from employment, and declined to award any damages.
The Tribunal advised the applicant of his right to apply to the High Court by way of judicial review if dissatisfied with the process.
Findings of the High Court
1. Competence to Swear Affidavits
The Court reaffirmed that affidavits are a means of giving sworn evidence, not pleadings, and thus the competence to swear an affidavit is based on the deponent’s personal knowledge of the facts, not on whether they are a recognized agent or officer of the institution involved.
The learned judge rejected an objection grounded on Order 3 and Order 29 of the Civil Procedure Rules (CPR), clarifying that these provisions relate to legal representation in suits and who may sign pleadings—not affidavit competence. The court held:
"Pleadings are, unlike affidavits, not evidence... With respect, learned counsel is basing on the words 'who is able to depose to the facts of the case' appearing in O.29 r.1 to surmise that only principal officers of a corporation are competent to swear affidavits. That is an incorrect construction."
Instead, the judge emphasized Order 19 rule 3(1) of the CPR, which states that affidavits must be confined to facts within the personal knowledge of the deponent, unless it is an interlocutory matter where statements of belief may be made with disclosed grounds.
This position mirrors the Court of Appeal’s holding in Mutembuli Yusuf v. Nagwomu Moses Musamba & EC, Election Petition Appeal No. 43 of 2016, which held that a "stranger" may swear an affidavit so long as they possess knowledge of the facts to which they depose.
In dismissing the objection, the Court aligned itself with the reasoning in Bankone Ltd v. Simbamanyo Estates Ltd (Misc. App. No. 645 of 2020), which emphasized that:
“What is required in affidavits is the knowledge or belief of the deponent… not authorization by a party to the litigation. Competency is pegged to the ability ‘to depose to the facts of the case.’”
The Court also noted that prior decisions restricting affidavit competence to authorized agents or advocates lacked grounding in procedural or evidentiary rules and were mistakenly analogized from representative suits.
2. Misnomer in Judicial Review: Lira University Council vs. Lira University
The second objection challenged the naming of Lira University Council as the respondent in a judicial review application, arguing that the proper party should have been Lira University, a corporate body under section 23 of the Universities and Other Tertiary Institutions Act (Cap 262).
Rejecting this technical objection, the Court held that corporate status is not a requirement for a respondent in judicial review, and that what matters is whether the body or official exercises public administrative power. This is supported by rule 7A of the Judicature (Judicial Review) Rules, which outlines relevant considerations, none of which pertain to the legal personality of the respondent.
Referring to John Jet Tumwebaze v. Makerere University Council & Others, and the recent case of Shadat Ssemakula Mutyaba Mohamed v. Gulu University, the Court ruled that:
“Suing Lira University Council instead of Lira University is a misnomer that could be corrected. It is a matter of form, not affecting the substance of the identity of the real respondent.”
The Court drew from Supreme Court authority in East Africa Foam Ltd v. AG & 2 Others [2025] UGSC 5, where it was emphasized—through Lord Denning’s judgment in Nittan (UK) Ltd v. Solent Steel Fabrications Ltd—that courts should not allow litigants to benefit from mere naming errors when the identity of the intended party is clear.
3. Objection on Limitation Period for Judicial Review
A third objection concerned whether the judicial review application was filed outside the three-month limitation period under Rule 5 of the Judicial Review Rules. The Court rejected this argument on both factual and legal grounds.
The Tribunal’s decision was dated 23 May 2022, but only communicated to the applicant by email on 25 May 2022. The Court applied section 34(1)(a) of the Interpretation Act, which excludes the date of communication from reckoning time. Thus, the judicial review application filed on 23 June 2022 was within time.
4. Clarification on Raising Unpleaded Preliminary Objections
The Court acknowledged that some of the respondent’s objections had not been pleaded in the affidavit in reply. However, relying on Saggu v. Roadmaster Cycles (U) Ltd [2002] 1 EA 258, the Court reaffirmed that unpleaded pure points of law may still be raised and determined, so long as they are clear and not interlaced with mixed facts.
Additionally, the Court cited Metropolitan Properties Ltd v. Muyimuna [2024] UGSC 22, which outlined criteria for properly raising preliminary objections, especially stressing that only pure points of law (e.g., jurisdiction, limitation, or misnomer) may be disposed of summarily without the need for evidence.
🧾 Key Takeaways
Affidavit competence is based on knowledge of facts, not legal authorisation or representative capacity.
In judicial review, naming a public body without corporate status is not fatal, it can be a correctable misnomer.
Limitation periods begin to run from the date of communication of the impugned decision, not the date of signing or internal adoption.
Preliminary objections must be pure points of law to be raised at hearing, even if not previously pleaded.
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