[2024] UGIC 78


# THE REPUBLIC OF UGANDA IN THE INDUSTRIAL COURT OF UGANDA AT KAMPALA **LABOUR DISPUTE REFERENCE NO.38 OF 2022** (Arising from Labour Complaint No. MGLSD/LC/704/2022)

# 1. KAMIZA NICHOLAS:::::::::::::::::::::::::::::::::::: 2. NAITALA MICHAEL

### **VERSUS**

### UGANDA BEVERAGES, TOBACCO AND ALLIED WORKERS UNION:::::::::::::::::::::::::::::::::::

#### Before:

The Hon, Mr. Justice Anthony Wabwire Musana

Panelists: Hon. Adrine Namara, Hon. Susan Nabirye & Hon. Michael Matovu.

#### **Representation:**

- 1. Ms. Sharon Awiny H/B for Mr. Patirck Kasirye of M/S Bukenya Chemonges & Co Advocates for the Claimants. - 2. Mr. Richard Mwebaze of M/S Amanyire & Mwebaze Advocates for the Respondent.

#### **Case Summary**

Employment Law-Jurisdiction-preliminary objection whether the Industrial Court of Uganda has jurisdiction to hear claims by members of a labour union. Two claimants, former union officials dismissed from their positions, sued their union for wronaful termination and financial irregularities. The Respondent, the union, argued the court lacked jurisdiction to hear the case, claiming it was an internal union matter and not an employer-employee dispute. However, the court ruled it had jurisdiction, citing the Labour Unions Act Cap. 228 that grants the Industrial Court authority over disputes concerning union management and financial issues, even those not strictly employeremployee related. The court thus overruled the objection, affirming its power to hear the case.


## **RULING**

$[1]$ This ruling concerns a preliminary point of law raised by Mr. Mwebaze, appearing for the Respondent. He submits that this Court does not have jurisdiction to entertain the claim.

**Background**

- **[2]** The Respondent is a trade union established under the Labour Unions Act Cap. **228(from now LUA).** The Claimants were Century Bottling Company Limited employees serving as casual workers, with the 1stClaimant starting in 2006 and being appointed on contract in 2010 and the 2nd Claimant starting earlier in 2002 and being appointed on contract in 2004. After their employment, the Claimants were encouraged to join the Respondent. In 2017, the 1st Claimant was elected Chairperson of the Trade Union at the Respondent, while the 2nd Claimant was elected Committee Member. By the rules, 4% of their salaries were deducted and remitted to the Respondent to run its activities. The Claimants allege that following their enquiries into deductions by the Respondent, on the 12lh of October 2020, the Respondent's General Secretary terminated their union leadership. Their appeal to the Respondents Delegates Conference was unsuccessful. Aggrieved, they lodged a complaint with the Ministry of Gender, Labour and Social Development. On the 18,h day of February 2022, Ms Hilda Nakagga, Labour Officer, referred the matter to this Court on a question for remedies. - **[3]** In their memorandum of claim filed in the registry of this Court on the 17lh of October 2022, the Claimants sought declarations that their dismissal from their elected positions on the Coca-Cola Trade Union was irregular, wrongful and unlawful and that the Respondent's meeting of the 24lh of September 2020 where they were dismissed was contrary to the principles of natural justice. They asked for a declaration that the beverage trade unions were entitled to 30% of branch returns, being about UGX 59,277,577/=. They also asked for UGX 100,000,000/= in general damages and interest at 15% p.a from the date of judgment until payment in full. - **[4]** In its memorandum in reply filed on 3rd November 2022, the Respondent argued that the claim was premature and the Claimants had not exhausted the internal complaint mechanisms. The Respondent suggested that the claimants had been indisciplined and were summoned to a disciplinary hearing and then terminated. It was also contended that membership to a trade union was voluntary and that because they were not Respondent's employees, there was no need to warn them. The claims for funds unaccounted for were considered unfounded, and the Respondent argued the entire claim to be prolix, misconceived, vexatious and brought in bad faith. - **[5]** In rejoinder, the Claimants reiterated their claim. They denied being summoned to ^a disciplinary hearing, suggesting that they were trade officers of the Respondent and thus entitled to a hearing.

A

**[6]** When the matter was called before us, we invited the parties to file written submissions. While Mr. Mwebaze held the view that the Claimants had not filed any submission by the 12th of December 2024, when the matter came up for mention, the record reflects the Claimants' submission filed on the 21st of November 2023. We have summarised and considered each party's submissions in rendering this ruling.

### **Submissions of the Respondent**

**[7]** Mr. Mwebaze argued that jurisdiction is a creature of statute. He cited *National Medical Stores v Penguins Ltd[1](#page-2-0)* and *Mujib Juma vAdam Musa & Ors,[2](#page-2-1)* two cases that establish the principle that jurisdiction is determined by statute. According to Counsel, Section 8 of the Labour Disputes (Arbitration and Settlement) Act, **2006[3](#page-2-2) 4(from now LADASA)** provides for this Court to arbitrate disputes referred to it and adjudicate questions of law and fact from references to it by any other law. It was argued that a labour dispute does not include a dispute between members of a single labour union. It was argued that this Court was not clothed with jurisdiction to entertain this claim. We were referred to *Makula International Ltd v His Eminence Cardinal Nsubuga & Anon[1](#page-2-0)*, and *Mujib* asked to dismiss the claim with costs. z X

### **Submissions of the Claimants**

**[8]** For the Claimants, it was submitted that Article 29(1 )(e) of the Constitution permits for the right and freedom of association. We were referred to Section 3(2)(a) of the Labour Disputes(Arbitration and Settlement) Amendment Act 2020, a key piece of legislation that grants the Industrial Court the same authority as the High Court in labour matters, and the case of *Asaph Ruhinda Nteqye & Anor v Attorney General[5](#page-2-3)* for the proposition that the Industrial Court is at par with the High Court in labour matters. It was contended that this claim was filed under Sections 3 and 7 LUA and Sections 2,6 and 8 LADASA. As members of a labour union, the Claimants had lodged a complaint with the Registrar of Labour Unions, and when the matter was unresolved, the Registrar referred it to this Court under Section 5 LADASA. We were referred to Section 2, LADASA, for the definition of a labour dispute.

#### **Decision of the Court**

**[9]** The Court, fully aware of the gravity of its decision, acknowledges that jurisdiction is the most crucial question before a Court. Proceedings without jurisdiction are a nullity, as established in the case of the *Attorney General of the United Republic of Tanzania v African Network of Animal Welfare[6](#page-2-4)* which we cited in *Kamukama v Summit Project Limited.[7](#page-2-5)\n* that case, the Appellate Division of the East African Court of Justice observed that jurisdiction is a most, if not the most, fundamental issue a court faces in any trial. , . It is the very foundation upon which the judicial edifice is constructed, the foundation from which springs the flow of the judicial process. Without jurisdiction, a court cannot take even the proverbial first Chinese step in its judicial journey to hear and dispose of

- 4¹¹⁹⁸²¹ UGSC 2 - <span id="page-2-3"></span>5 [20171 UGCC 3 - <span id="page-2-4"></span>⁶ APPEAL NO. 3 OF 2014. - <span id="page-2-5"></span>⁷ [2023] UGIC 54

<span id="page-2-0"></span>¹ L2O12UJGCommC\_3S

<span id="page-2-1"></span>²12018] UGHCLD 27

<span id="page-2-2"></span>³ Act 8 of 2006 It is now Cap.227

^a case. Jurisdiction is a creature of statute per *Baku Raphael Obudra and Another v Attorney General3.* It cannot be assumed even with the consent of the parties.[\\*](#page-3-0) ⁹ Therefore, this Court must decide whether it has jurisdiction to hear and determine the Claimants' claims.

- [10] The Claimants pleaded that they were elected representatives of a labour union, the Respondent, while employed on contract with Century Bottling Company Limited. This is their plea in paragraph 3(a) of their memorandum of claim. This plea means they were not Respondent's employees. The Respondent argues that they were not employees and do not have an employment dispute. How does an employment dispute arise? - **[11]** As a starting point, both Counsel agree that the functions of this Court are to arbitrate and adjudicate on labour disputes and questions of law and fact referred to it. This is what Section 8 LADASA provides. What is a labour dispute? According to Section 2 LADASA, a labour dispute is defined as any dispute between an employer or employers and an employee or employees; or between labour unions connected with employment or non-employment, terms of employment, the conditions of labour of any person or of the economic and social interests of a worker or workers. In the matter before us, the Claimants plead that they are employees of Century Bottling Company Ltd, which is not a party to this dispute, and were elected representatives of the Respondent Union Branch at their employer. - **[12]** In our reading of Section 2 LADASA, first, a labour dispute concerns a dispute between an employer and an employee. In the present case, there is no such dispute as the Claimants and Respondent did not enjoy an employer-and-employee relationship. - **[13]** The second aspect of a labour dispute within Section 2 LADASA is a dispute between employees or between labour unions connected with the employment or nonemployment, terms of employment or conditions of labour of any person or of the economic and social interest of a worker or workers. The present dispute, as set out in the memorandum of claim, seeks three declarations: a declaration of wrongful dismissal, an unfair and partial meeting of the 2nd Respondent and a declaration on branch entitlement to union dues. - **[14]** The first two declarations concern elected representatives of a union being dismissed by the Union. That is not a dispute between employees or trade unions but between representatives of a labour union and the labour union. In our view, it does not fall within the first classification of a labour dispute between an employer and an employee. To this end, we agree with Counsel for the Respondent that there is no employment dispute between the parties. But does that mean that this Court does not have jurisdiction to hear the dispute?

^• (2006) UGSC 5

<span id="page-3-0"></span>⁹ The term jurisdiction is defined in *Owners ofMotor Vessel Lillian "s" v Caltex Oil Kenya Limited* [1989] KLR¹ which was cited in the case of *Ozuu Brothers vs Ayikoru Milka* H. C. C. R 006 of 2016

- [15] A wealth of authorities by this Court have pointed to the Court's jurisdiction being limited to a labour dispute between an employer and an employee. These case include *Kamukama* where we cited *Kyaka andAnor vAttorney General¹⁰* where it was held that the Industrial Court is a specialized Court dealing with matters to do with employees and employers regarding the employment relationship between them. It was further held that the Court's jurisdiction extends only to labour disputes directly connected with employment and arising from the employment relationships provided for under the Employment Act 2006. This is the stance that Mr. Mwebaze took for the Respondent. - [16] However, according to Mr. Kasirye and Ms. Awiny for the Claimants, the present dispute was referred to this Court by the Registrar of Labour Unions. Counsel argued that Section 47LUA requires every organisation to keep books of accounts. Mr. Mwebaze's view was that administrative challenges between union officials did not amount to a labour dispute. Mr. Kasirye argued that this is a dispute connected with nonemployment and the economic and social interests of workers. And we agree with Mr. Kasirye's proposition for the reasons below. V ) - ^z - **[17]** Section 2LUA borrows the definition of labour disputes from LADASA, as stated in paragraph [12] above, which we need not repeat here. It is worded the same. In the LUA, several provisions confer jurisdiction on the Industrial Court to entertain disputes under LUA. Under Sections 5 (1) and 6(3) LUA, an employee or a labour union may bring an action before the Industrial Court concerning interference with the right of association. Under Section 20LUA, a labour union dissatisfied with a decision of the Registrar of Labour Unions refusing, delaying or cancelling registration of a labour union may appeal to the Industrial Court. Under Section 22(2) and (3) LUA, an officer of a registered organisation(labour union11) has the right to challenge his or her interdiction or suspension by the Registrar before this Court. Under Section 23(6)LUA, where an employer or registered organisation fails to comply with a recognition or other order, a party aggrieved by that failure may refer the matter to the Industrial Court. Further, under Section 36LUA, disputes relating to the amalgamation of labour unions may be referred to this Court. Similarly, where the Registrar cancels the registration of any organisation, it may appeal to the Industrial Court under Section 38(4)LUA. - **[18]** Concerning officers of a registered organisation, Section 41 LUA provides the procedure for any changes of officers and trustees of the organisation. Where the Registrar is not satisfied with the validity or propriety of the changes, the Registrar may refer the matter to the Industrial Court. And regarding detailed books of accounts, the Registrar of Labour Unions has power under Section 52LUA to investigate accounts of a registered organisation and make directions. Where there is noncompliance with directions, the Registrar may refer the matter to the Industrial Court.

^&quot; [20211 UGIC ³⁷

Section ¹ LUA describes a labour union or federation of labour unions as a registered organisation.

[19] The above-cited provisions mean that the Industrial Court's jurisdiction is not limited to the employee and employer relationship, as Mr. Mwebaze contended. It is also concerned with other labour matters, including, as provided above, disputes related to the recognition and management of labour unions. The long title of LUA reads, " **An act to regulate the establishment, registration and management of labour unions and to provide for related matters".** The LUA then provides for the Industrial Court's jurisdiction in the specific sections this Court has cited above. This conclusion would be consistent with the expansive discourse on jurisdiction by Kakuru JA(as he then was(RIP)) in *Muqyenzi v Uganda Electricity Generation Co. Ltd. (Civil Appeal No. 167 of 2018)¹²* where in a lead judgment with Musota and Madrama JJA(as they then were) concurring, observed;

> *"... The Industrial Court should use its jurisdiction to adjudicate on issues or fact or law under section 8 (1) (b) and 8 (2) of the Labour Disputes (Arbitration and Settlement) Act to handle all labour disputes such as that referred to it by the labour officerin this appeal. The claim ofthe appellant which included ^a claim for general, special and punitive damages comes under any other law and could be adjudicated upon by the Industrial Court"*

In that case, the Appellant had sought general, special and punitive damages not expressly provided for in the LADASA. The Court of Appeal confirmed this Court's jurisdiction to hear matters connected with the employment dispute. Following *Mugyenzi,* this Court has considered defamation questions associated with the employment dispute in *Makuza v Civil Aviation Authority & Another* [13](#page-5-0) and regularly awarded special, general and even punitive damages. The Court is not confined to a jurisdiction conferred under the traditional and narrow prism of *Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance¹⁴* where the test is whether the Claimant is an employee or independent contractor and, therefore, subject to the jurisdiction of the Court. Labour law has expanded since 1968 when Mackenna J found Latimer, ^a yardman batcher, to be ^a "small businessman" and or an independent contractor, not a servant. Labour and employment relations concern a lot more, including expanded individual and collective labour rights and new forms of work, including platform work.

[20] In our judgment, therefore, where the Claimants seek a remedy concerning the management of union dues and are dismissed from the union, this Court would have jurisdiction to consider the referral of the labour officer under the provisions of Sections 47 and 52LUA. These statutory provisions confer jurisdiction on the Industrial Court. In

<span id="page-5-0"></span>l; ¹²⁰ ¹⁹¹ UGCA ¹²⁰

¹³ 120241 UGIC 57

^&quot;[1968] ² QB ⁴⁹⁷

considering such questions, this Court would not be assuming jurisdiction but exercising a jurisdiction of which it is seized. We do not, to paraphrase Nyarangi JA in *Owners of Motor Vessel Lillian "s" v Caltex Oil Kenya Limited,[15](#page-6-0) 16*have to down our tools. We do not think *Makula,* as cited by Mr. Mwebaze, is applicable. There is no illegality to contend with. Conversely, we are emboldened now as we were in *Michael Tumukunde v Leading Distillers[15](#page-6-0)* by the dicta of Mulenga JSC(as he then was) in *Habre International Co. Limited v Kassam & Others[17](#page-6-1) 18."The jurisdiction of Courts of law must be guarded jealously and should not be dispensed with too lightly",* his Lordship observed. And so guided, this Court must now guard its jurisdiction. There is sound, persuasive comparative jurisprudence in support. In *George Joshua Okunqu v Kenya Pipeline Company Limited, Attorney General, Director of Public Prosecutions & Ethics and Anti-Corruption Commission* ,fl the Employment and Labour Relations Court of Kenya opines on the principle of accrued and consequential jurisdiction in employment and labour relations matters that once the Court is clothed with jurisdiction to determine one aspect of the labour claim, then it had the authority to determine the whole matter by virtue of its accrued or consequential jurisdiction to avoid duplicity. This is the disadvantage to judicial economy that this Court cites *Komakech v Muttico Technical Services Limited and Another [19](#page-6-2).*

[21] Returning to the matter before us, for the reasons above, we overrule the preliminary objection and find that this Court has jurisdiction to entertain the dispute under the Labour Unions Act Cap. 228.

**Dated signed and delivered at Kampala this 20th day of December 2024.**

<span id="page-6-0"></span>¹⁵ [1989]KLR ¹

¹⁶ LDR 002 of 2021 Industrial Court 25th October 2024

- <span id="page-6-1"></span>¹⁷ (19991UGSC 31 - ¹⁸ 120161 KEELRC 666 (KIR)

<span id="page-6-2"></span>¹⁹ (20241 UGIC 25 In that case, this Court was confronted with a claim for unlawful termination twined with a claim under the Workers Compensation Act Cap. 233, which does not confer jurisdiction on this Court to hear ^a claim for workers compensation for work-related injury.

Page 8 of 8

## **The Panelists Agree:**

- 1. Hon. Adrine Namara, - 2. Hon. Susan Nabirye & - 3. Hon. Michael Matovu.

## **20th December 2024 9:45 a.m.**

#### **Appearances**

- 1. For the Claimants: - 2. For the Respondent:

Mr. Charles Mutyaba H/B for Mr Patrick Kasirye. Mr. Richard Mwebaze. Claimants in Court

Court Clerk: Mr. Samuel Mukiza.