[2022] UGIC 61

## THE REPUBLIC OF UGANDA

## IN THE INDUSTRIAL COURT OF UGANDA AT KAMPALA

## **^I LABOUR DISPUTE MISC. APPLN. NO.128 OF 2021**

## **ARISING FROM MISC APPLN. No.082/2021**

**GEOLODGES APPLICANT**

**VERSUS**

**MEME LYNDA RESPONDENT**

**£ BEFORE:**

# **1. THE HON. JUDGE, LINDA LILLIAN TUMUSIIME MUGISHA PANELISTS**

**1. MR. EBYAU FIDEL**

### **2. MS. HARRIET MUGAMBWA NGANZI**

**3. MR. FX. MUBUUKE**

#### **RULING**

#### **BACKGROUND**

This application was brought by Notice of Motion under section 98 of the Civil Procedure Act, Cap 71, Order 43 Rules 4(1), (2), (3) & ⁵ of the of the Civil Procedure Rules S.l ⁷¹ - 1)

For orders: -

a) For **^a** substantive Order of Stay of Execution against the Respondent, staying execution of this Courts award against the Applicant in **Labour Dispute Reference No. 310 of 2017** until the pending hearing and determination ofthe Applicant's Appeal.

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## b) Costs ofthis Application be provided for.

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**ⁱ ' L** The grounds ofthis Application are stated in the affidavit of **Kiwunda Mathew** and are summarised as follows;

- 1. The Applicant has filed an Appeal in the Court ofAppeal against the award ofthis court made on 30/04/2021. - 2. That the Applicant has filed a notice of Appeal and written a letter requesting for typed proceedings and the same was served on the Respondent. - 3. In the meantime, the Respondent has applied to execute the award of the Court. - 4. The Applicant's Appeal has very a high likelihood ofsuccess as it raises serious points of law and fact which were overlooked by this Court. - 5. The Application is made without undue delay given that the Applicant was served with notice to show cause why execution should not issue on 15/09/2021 and the Applicant is in position to furnish security for the performance ofthe order sought to be appealed against. - 6. There in the interest ofjustice and equity, an Order of stay of execution should be issued against the Respondent.

#### **The Applicants case:**

The Applicants case as deposed in the Affidavit in support of Kiwunda Mathew, an Advocate currently practicing with M/s Muwema & Co Advocates and Solicitors, the firm with instructions to present and prosecute this application on behalf ofthe Applicant is as follows:

- 1. That, he is conversant with the facts of this application and depones the affidavit in that capacity. - 2. That the Applicant is aggrieved and dissatisfied by finding ofthis Court in **Labour Dispute Reference 310** of **2017,** that the Applicant did not comply

with the procedure for termination by redundancy and that the reliance on redundancy cannot stand.

- 3. That the Applicant has commenced the Appeal process by filing a Notice of Appeal and has requested for a typed record of proceedings and served the same onto the Respondent. (Copies are attached as "B" and "C" - 4. That the Appeal has a high likelihood ofsuccess given that the decision of this court was contrary to the law because the trial Judges did not properly evaluate all the facts on the record. - 5. That notice to show cause has been issued to the Applicant hence the urgency of the application and if it is not granted the Appeal will be rendered nugatory and in the event that the Appeal is successful, the Applicant will suffer substantial loss and damage that cannot be atoned for by way of damages. - **6.** That the Respondent is not entitled to the awards granted to her by this court and if the Respondent is allowed to proceed with the execution proceedings, the applicant shall become financially constrained and hence insolvent. - - **7.** The application has been made in time and the Applicant will furnish security for the due performance of the Order appealed against once directed to do so. '' ..

#### **8.** Respondent's case

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The Respondent's case as stated in the Affidavit in reply, deponed by the Respondent, Ms. Meeme Lynda is summarised as follows:

1. That, she opposes this application and she was informed by her Advocates M/s Ssekaana Associated Advocates & consultants that, the application is incompetent because the Affidavit in its support is defective.

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- 2. ^T hat, there was no valid appeal pending before the Court ofAppeal and therefore there is no legal basis for stay of execution to deny her the fruits ofthe Judgement which this court awarded to her. - 3. That in the absence of a valid Appeal, it is speculative that the Appeal has high chances of success and it is brought in bad faith to deny her the fruits of herjudgment. - 4. That it is the speculative and contradictory to state that, Applicant will become insolvent once Execution is allowed and in the same vain state that the Applicant has capacity to furnish security for due performance ofthe Decree. - 5. That she will be more inconvenienced by the grant ofthe order ofstay of execution since she will not be able to realise the fruits ofthe award which was handed down to her since the intended Appeal may take many years before it is heard and disposed of, yet the Applicant unlawfully terminated her in 2016 and to date she remains unemployed. - 6. Therefore, this application should be denied.

Both Counsel made written submissions for which we are grateful.

### **DECISION OF COURT**

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After carefully considering the Notice of Motion, the Affidavits in support and against the Application and the submissions of both Counsel, we found as follows:

Counsel for the Respondent raised an objection to the effect that the Affidavit sworn by Kiwunda Mathew, an Advocate with **M/s Muwema & Co Advocates and Solicitors,** is fatally defective and incurable because he did not attach any written authority from the Applicant. In addition, the Affidavit raises contentious issues contrary to Rule 9 of The (Advocates (Professional Conduct) Regulations SI 267-2.

Ele c ited **Mugoya Construction and Engineering Ltd vs Central Electricals International Ltd Misc. Appln No. 699 of 2011,** in which the Counsel Kyateka s Affidavit in support was dismissed for violating Order 3 rule ¹ because he did not attach written authority from the Party on whose behalf, he deponed it. The Court in this case defined *a recognized Agent as a party who holds powers ofattorney to do any act ofthe Party. "*

Counsel contended that, in **Banco Arabe Espanol vs Bank** of **Uganda SCCA No. 8 Of 1998,** in which Counsel Sekatawa's affidavit was declared defective because he omitted to disclose the means of his knowledge or the grounds of his beliefin the matters set out in the affidavit or to distinguish between matters stated based on information and belief and matters to which the deponent swore from his own knowledge, as stated by the Court of Appeal of East Africa in **Caspair Ltd Harry Gandy (1962)EA, 414.**

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Mr. Lule contended that, Kuwunda's Affidavit was further defective because it was sworn to disprove contentious matters regarding whether the Respondent was summarily dismissed or not and under paragraph 12 and 13 of his affidavit he sates he states that the applicant will become financially constrained and insolvent, without disclosing the source of this information yet he is not a Director ofthe Applicant therefore rendering his competency to depose as such legally untenable.

In reply Counsel Nsubuga for the Applicant refuted the assertion that the affidavit in support of the Application was defective because it is not in dispute that Muwema and Co Advocates is representing the Applicant in the instant matter and Mr. Kiwunda Mathew who deponed the affidavit in support clearly introduces himself and states the capacity in which he depones the affidavit.

He refuted the argument that, the deponent ought to have been given written authority, because he practiced with the law firm with instructions to represent

the Applicant in the matter, therefore he possess authority to represent the Applicant and to depone on matters that are within his knowledge, particularly on matters of law. He argued that, **Mugoya Construction and Engineering Ltd vs Central Electricals International Ltd Misc. Appln No. 699 of 2011,** was distinguishable with the instant case, because in that case, Counsel introduced himself as an authorised agent and the authority ofthe Principal was attached in the affidavit in support and the Court observed that persons classified and referred to as recognized agents are persons holding powers ofAttorney authorising them to make such appearances, applications and to do all such acts on behalf of the parties. The Advocate therefore deponed as an authorised agent and not as an Advocate which were materially different.

Fie insisted that the deponent ofthe affidavit in support ofthe instant application deponed it as an advocate practicing law with a law firm with instructions to present and prosecute this application on behalf of the Applicant. **RESOLUTION OF PRELIMINARY OBJECTION**

Mr. Kiwunda in paragragh ¹ ofhis Affidavit in support states as follows:

*"That lam a male adult Uganda ofsound mind, an advocate ofthe High Court and all Courts subordinate thereto currently practicing with M/s Muwema and Co. Advocates and Solicitors, thefirm with instructions to present andprosecute this application on behalfofthe Applicant.*

*That lam conversant with thefacts ofthis application in which capacity I depone this affidavit.*

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Regulation 9 of the Advocates Professional Conduct Regulations SI 267-2 prohibits Counsel from deponing on matters he or she has reason to believe will be required as a witness to give evidence whether verbally or by affidavit. The Regulation provides as follows:

*9. Personal involvement in a client's case*

*No Advocate may appear before any court or tribunal in any matter in which he or she has reason to believe that he or she will be required as a witness to give evidence, whether verbally or by affidavit ; and if while appearing in any matter, it becomes apparent that he or she will be required as a witness to give evidence whether verbally or by affidavit, he or she shall not continue to appear, except that this regulation shall not prevent an advocate from giving evidence whether verbally or by declaration or affidavit on aformal or noncontentious matter orfact in any matter in which he or she acts or appears. "*

Counsel Kiwunda Mathew explicitly stated that he was "... *an Advocate of the High Court ... currently practicing with M/s Muwema and Co. Advocates and Solicitors, thefirm with instructions to present andprosecute this application on behalfofthe Applicant.*

This Court in **Mutawe Andrew vs Sanlam General Insurance LD Misc. Application No. 101/2016,** stated that the mischief which Regulation 9 (supra) was intended to cure, was to prevent lawyers from adducing evidence that should ordinarily be adduced by their clients. In **Namakula** Vs **Kyaterekera Growers** Cooperative Society Ltd(1993), it was held that where parties to the suit are available it is desirable that they themselves swear relevant affidavits although we hasten to add that in Nanmakula's case, Counsel deponed on matters within her knowledge and which were not contentious therefore her affidavit was accepted by Court.

*We* do not see any reason why the Applicant in this case, did not swear the Affidavit instead of Counsel, given that the matters on which he deponed are contentious in nature. The averments he made under paragraph 4 chat, "... *the Applicant clearly made a case in which it contended that the Respondent had not been summarily dismissed and her termination was a result ofrestructuring of the Applicant Company and as such she was not entitled to the remedies sought*

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7>7 *her complaint* and 13, *that the Respondent was not unlawfully dismissed and Is not entitled to the amounts seeking to be recovered and Ifthe Respondent Is allowed to proceed with execution, he applicant will become financially constrained and insolvent hence loosing key important government projects which loss cannot be compensatedfor by the respondent* without stating the are all contentious matters, therefore they were made contrary to regulation 9 the Advocates Professional Conduct Regulations SI 267-2 therefore they should have been made by the Applicant instead. In the circumstances, the affidavit was deponed in contravention of Regulation 9 (supra), which renders it fatally defective, thus rendering the application incompetent.

Be that as it may The Court in resolving such applications is also not barred from applying Order 43(4)(3) of the Civil Procedure Rules which provides the conditions which must be satisfied before an order for stay of execution may be granted by a Court as follows:

- *a) Substantial loss may result to the party applyingfor stay ofexecution unless the order is made* - *b) The application has been made without unreasonable delay.*

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*c) Security has been given by the applicant for due performance of the decree or order as may ultimately be binding upon him or her, as long the execution is made before the expiry of the time within which an appealfrom the decree should befded.*

The most important consideration for court to grant an order ofstay of execution is to ensure that, the Applicant' Appeal ifsuccessful, is not rendered nugatory by the execution ofthis courts award. Therefore, the Applicant must prove that there exists a substantive appeal. Save for the notice of Appeal, which was filed in this court on 23/07/2021, and attached to the Affidavit in support as annexure "B", the Applicant did not furnish this court with any evidence to indicate that since 23/7/2021, it has taken steps to procure the typed record and file a memorandum

of Appeal that she made any protestation for any delay that may have been occasioned by the issuance of the said typed record or to indicate that it actually lodged the Appeal. In the absence of such evidence , we are inclined to believe the submission ofCounsel for the Respondent that in fact there is no substantive appeal which would be rendered nugatory by the grant of an application for stay of execution.

to costs. In conclusion, this application is dismissed for being rendered incompetent by Kiwunda Mathews defective Affidavit in support. The prayer for the grant of an order of stay of execution of the award of this court in **Labour Dispute Reference 310 of 2017,** is denied. The Application is dismissed with no order as

Delivered and signed by: */Ar*

# **l. THE HON. JUDGE, LINDA LILLIAN TUMUSIIME MUGISHA** *Apr.* PANELISTS

**1. MR. EBYAU FIDEL**

**2. MS. HARRIET MUGAMBWA NGANZI**

**3. MR. EX. MUBUUKE**

**DATE: 8/06/2022**

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