[2025] UGHCCD 42

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA AT KAMPALA**

**(CIVIL DIVISION)**

**MISCELLANEOUS CAUSE NO. 0255 OF 2022**

**FINANCE AND ALLIED WORKERS UNION :::::::::::::::::::::::::::::: APPLICANT**

**VERSUS**

**BANK OF BARODA (UGANDA) LTD ::::::::::::::::::::::::::::::::::::::: RESPONDENT**

**BEFORE: HON. JUSTICE SSEKAANA MUSA**

**RULING**

The applicant filed this application under the provisions of Articles 29 (1) ©, 40 (3) and 50 (1) & (2) of the Constitution, sections 3, 4, 5 and 24 (1) (d) and (2) of the Labour Unions Act, and the Judicature (Fundamental and Other Human Rights and Freedoms) (Enforcement Procedure) Rules seeking for;

1. *A declaration that the Respondent's decision that its employees who are members of FAWU should join NUCCPTE union is illegal and unlawful.* 2. *An order for the Respondent to allow its employees who are the Applicants members to freely exercise their rights to join and belong to FAWU which is a Union of their own choosing.* 3. *An order for the Respondent to recognize the Applicant and sign the recognition Agreement.* 4. *An order for the Respondent to commence collective bargaining immediately upon signing of the recognition agreement and sign the Collective Bargaining Agreement.* 5. *An order for a permanent injunction restraining the Respondent and all its employees, departments, branches, officials etc from enforcing part 3 section 36 and part 4 section 48 of the National Tripartite Charter on Labour Relations.* 6. *An order for payment of lost income especially Union dues which is /was supposed to be deducted by the Respondent and sent to the Applicant known as the check-off system.* 7. *An order for the Respondent to pay the Applicant general and aggravated damages.* 8. *An order for payment of cost of the suit, interest and any other or further relief that this Honorable court may deem fit.*

The application was supported by an affidavit of Dhobuazi Richard Jimmy, the applicant’s General Secretary with grounds stated therein which I will not reproduce.

The respondent filed its affidavit in reply sworn by Ahmed Senkumba, the legal manager of the respondent who stated that the application was a nullity, legally misconceived and that this court has no jurisdiction over the applicant’s compliant.

**Representation**

The applicant was represented by its General Secretary, Mr. Dhobuazi Richard Jimmy whereas the respondent was represented by Mr. Busobozi Henry Wycliff.

The applicant proposed the following issues for determination by this court.

1. ***Whether this Honorable Court has jurisdiction to entertain the Applicant’s complaint?*** 2. ***Whether it is lawful for the Respondent to refuse to recognize / sign the recognition agreement with the Applicant and thereby deny its employees who are Applicant’s members right to collective Bargaining and also to freely exercise their rights to join and belong to FAWU which is a Union of their own choosing on account of the Recognition Agreement it has with NUCCPTE Union.*** 3. ***Whether the Respondent’s refusal to recognize/ sign the recognition agreement on account of part 3 sections 36 and part 48 of the National Tripartite Charter on Labour Relations infringed and / or violated the rights of Applicant’s members*** 4. ***Whether the applicant is entitled to reliefs sought.***

The parties were ordered to file written submissions and accordingly filed the same. These submissions were considered by this court.

**DETERMINATION**

***Whether this Honorable Court has jurisdiction to entertain the Applicant’s complaint?***

The applicant submitted that this court has jurisdiction to entertain its complaint. The Applicant under paragraphs 1- 6 of the Application and 8-11 of the affidavit indicated that the Respondent declined to sign the recognition agreement/ recognize the applicant and that the Registrar of Labour Unions ignored the complaints and never gave it the attention it deserved.

It was submitted that section 24 (6) of the Labour Union Act provides that where the Registrar declines to make the order, the aggrieved party may refer the matter to the Industrial Court. That whereas the provision of the law provides for the aggrieved party to refer the matter to the Industrial Court, no procedure is provided for it thereby leaving the Applicant with no option but to turn to this Court which Article 139 (1) of the Constitution which gives unlimited original jurisdiction in all matters and other jurisdiction as may be conferred on it by the Constitution or other law which in the instant case, the application was brought under the Judicature (Fundamental and other Human Rights and Freedoms) (Enforcement Procedure) Rules and other laws.

The applicant stated that the issue is whether this Honourable Court has jurisdiction to entertain matters of Human Rights under the Judicature (Fundamental and other Human Rights and Freedoms) (Enforcement Procedure) Rules. It was submitted that section 2 of the above rules provides that "these rules apply to all Courts o Judicature", which this court is noted as one under Article 129 (1) (c) of the Constitution. The applicant submitted that this being the High Court, it retains unlimited original jurisdiction to hear labour and employment matters as a court of first instance notwithstanding the provisions of section 24 (6) of the Labour Union Act which appear to limit the powers of this court and purport to vest the jurisdiction exclusively in Industrial Court through its provision.

It was further submitted that section 24 (6) of the Labour Union Act 2006 intends to oust the jurisdiction of this Honourable Court in labour and employment matters by restricting it to Industrial Court. The applicant relied on the case of ***Ozuu Brothers Enterprises vs. Ayikoru, HC. Civ Rev. No. 02*** of 2016 which held that the jurisdiction of the High Court is unlimited and can only be limited by the Constitution itself. The applicant further relied on the case of 201 ***Former Employees of 15 G4S Security Services (U) Ltd vs. G4S Security Services (U) Ltd, SCCA No. 180/2010***, where Dr. Kisaakye, JSC observed that, section 93 (1) and 94 of the Employment Act, 2006, intended to oust the jurisdiction of ordinary civil courts in employment matters by restricting it to Labour Officers and Industrial Court. The Supreme Court stated that, sections 93 (1) and 94 of the Employment Act conflict with article 139 (1) of the Constitution, in so far as they limit the unlimited original jurisdiction of the High Court to hear employment matters as a court of first instance.

The applicant further submitted that although it falls within the wide provision of Article 129 (1) (d) of the Constitution, the Industrial Court has been held to have concurrent jurisdiction with the High Court in employment matters although placed in the appellate hierarchy equal to that of the High Court. It was therefore submitted that the Industrial court `has its special legislative design but that does not mean it is a superior court, or that because it exists, then the High Court downs its tools in employment-related disputes. Justice Asaph Ruhinda Ntegye & Another vs. Attorney General, Const. Petition No. 33 of 2016.

The applicant therefore submitted that the law has since been consistently clarified that the High Court only lacks power to entertain matters where its jurisdiction is expressly limited by the Constitution, in terms of Article 139 (1) thereof. it therefore prayed that this Court finds that the matter is properly before it and has jurisdiction to entertain matters of Human Rights under the Judicature (Fundamental and other Human Rights and Freedoms) (Enforcement Procedure) Rules.

Counsel for the respondent submitted that the Labour Unions Act provides for the procedure where a labour union is aggrieved by the action of an employer who refuses to deal with it. He relied on section 24(3) of the Act which provides that where an employer refuses to deal with a registered organisation in accordance with subsection (1) (d), then the registered organization shall complain to the Registrar, who shall immediately call upon the employer to show cause in writing within twenty-one days, why the employer is not complying with this Act. He further relied on section 24(6) that where the Registrar declines to make the order the aggrieved party may refer the matter to the Industrial Court.

Counsel submitted that it is clear that the appropriate remedy in the circumstances was to file this application in the Industrial Court as per the Labour Unions Act. He submitted that the application is incompetent and an abuse of court process. He stated that it is trite that where the law is silent on the procedure by which an application may be filed, the same is done my way of a notice of motion, which is the procedure that was employed by the applicant in filing the matter in this court. The same procedure could have been adopted by the applicant in pursuing its statutory remedy in the Industrial court, the forum for attending to such a reference. Counsel submitted that the industrial court has ably handled disputes of this nature.

He further submitted that the Applicant's claim that this application was brought under the Judicature (fundamental and other human rights and freedoms) Enforcement procedure rules) is legally misconceived. He noted that the claim, although one purportedly for enforcement of fundamental human rights is for enforcement of rights provided for specifically by the Labour Unions Act, an Act whose provisions the applicant seeks to enforce and which act provides that the appropriate forum will be the Industrial Court.

Counsel submitted that it is trite that specific laws prevail over general laws in matters of statutory application and interpretation as stated by the Supreme Court in ***Uganda Railways Corporation v Ekwaru D.0 and 133(5104) Others (Civil Appeal 7 of 2019)***. In the circumstances, the specific law that provides for applications of this nature to be filed in the Industrial Court should prevail over the general law of application.

He therefore submitted that the applicant's application in this court is incompetent for not being filed in the proper forum, and prayed that it be struck out and the applicant directed to refer its complaint to the Industrial Court.

**Determination.**

The objection raises an important question of jurisdiction of this court in this matter. It is trite that a court must determine whether it has jurisdiction because to purport to act with jurisdiction is an act in vain. Jurisdiction refers to the authority which a court of law has to hear and decide a case that has been brought before it. The limit of the authority is imposed by the law under which the court is constituted and cannot be prescribed by inference. A court of law cannot arrogate itself jurisdiction beyond what is provided for under the law. As stated by both parties, section 24 of the Labour Unions Act which is now section 23 (as amended) provides for the rights and immunities of registered organisations. Section 23 (6) provides for recourse of an aggrieved party where the Registrar declines to make an order which is reference of the matter to the Industrial court.

It is the applicant’s case that it made a complaint to the Registrar of Labour Unions which was ignored and never given any attention. The applicant indeed takes cognisance of redress from the Industrial Court in such circumstances; however, notes that this court has unlimited jurisdiction under the Constitution to entertain this application.

It is indeed true that that Article 139 confers on the High Court unlimited original jurisdiction in all matters and such appellate and other jurisdiction as the be conferred on by the Constitution or other laws. However, the Constitutional Court in the case of ***Justices Ruhinda Asaph Ntengye & Anor vs Attorney General Const. Pet. No. 33 of 2016***, observed that the Industrial Court is one of the Courts of Judicature as per Article 129 of the Constitution, having been established by Parliament in the exercise of Article 129(l)(d) of the Constitution with concurrent jurisdiction with the High Court. As such, its establishment is rooted in the Constitution. See: ***Uganda Revenue Authority vs Rabbo Enterprises Ltd & Anor Civil Appeal No. 12 of 2004***. It is also trite law that specific laws prevail over general laws in matters of statutory application and interpretation See; ***Uganda Railways Corporation v Ekwaru D.0 and 133(5104) Others Civil Appeal 7 of 2019***. As such, section 23 (6) provides for redress in case of dissatisfaction where the Registrar declines to make an order under the Labour unions Act with the Industrial Court which is vested with the jurisdiction to entertain such matters.

This application was also brought under the human rights which is quite off the law on enforcement of rights. Rights which are tortious in nature cannot be sought pursuant to the fundamental rights (Enforcement procedure) Act and such claims ought to be enforcement as the prescribed legislation. Fundamental Human Rights (Enforcement Procedure) rules and Act cannot be used to institute an action of a right that has not been prescribed in the relevant laws and any such action is an abuse court process like in the present case of enforcement of labour rights disguised enforcement of fundamental rights.

I therefore find that this application is improperly before this court for lack of jurisdiction.

This application is therefore dismissed with costs.

I so order.

***SSEKAANA MUSA***

***JUDGE***

***Delivered by the Registrar on this…………….day of February 2025***