[2025] UGIC 46


# **THE REPUBLIC OF UGANDA**

# **IN THE INDUSTRIAL COURT OF UGANDA AT KAMPALA**

### **LABOUR DISPUTE MISC. APPLN. NO 153 OF 2023**

*(Arising From Labour Dispute Reference No. 199 Of 2020)*

**MBATIDDE HELLEN APPLICANT**

**v**

# **FrrSEKIREVU WYCLIFF ADAMS**

**T/A BRIDGE CONSULT RESPONDENT**

### **Before:**

The Hon. Justice Linda Lillian Tumusiime Mugisha, Head Judge.

# **Panelists**

- 1. Hon. Charles Wacha Angulo, - 2. Hon. Beatrice Aciro Okeny & - 3. Hon. Rose Gidongo.

# **Representation:**

- 1. Ms. Rita Nabukalu of M/s. Sekabanja & Co. Advocates jointly with M/s. Kahuma & Co. Advocates for the Applicant. - 2. No one Appeared for the Respondent; however, M/s. Volens Advocates filed submissions for the Respondent.

#### **RULING**

#### **Introduction**

[1] This Applicant seeks leave of Court to amend his Memorandum of Claim in Labour Dispute Reference No. 199 of 2020. No costs were prayed for. The Application is brought under Section 98 of the Civil Procedure Act and Order 6 Rules 19 and 31, Order 52 Rules ¹ and 3 of the Civil Procedure Rules s.1 71-1.

#### **Background**

[2] According to the Applicant, being dissatisfied with the reasons and manner in which he was terminated by the respondent, lodged a Labour complaint through her advocates, M/s. Sekabanja & Co. Advocates at the labour office in Nakawa vide KCCA/NAK/LC/233/2020. The complaint was referred to the Industrial Court vide LABOUR DISPUTE REFERENCE NO. 199 OF 2020. Her advocates filed a Memorandum of Claim to this court seeking orders inter alia that the Claimant's employment with the Respondent was unfairly terminated, Salary arrears, payment in lieu of notice, overtime, interest, Costs, and inadvertently omitted the pertinent issues of facts and remedies, thus this Application.

### **The Applicant's case**

[3] The Applicant's case, as stated in the Affidavit deponed by Mbatidde Hellen, the Applicant, is summarized as follows:

That the Applicant, L. Hellen Mbatidde, is an adult Ugandan who initially filed a claim for wrongful termination and salary arrears through M/s. Sekabanja & Co. Advocates in 2020. In August 2023, she sought a second legal opinion from Mr. Andrew Kahuma of M/s. Kahuma & Co. Advocates. Upon review, it was found that the original claim omitted key facts, remedies, and misdescribed the Respondent.

A joint meeting between both firms resulted in an agreement to amend the claim to address these issues. The Applicant asserts the amendments do not introduce a new cause of action or prejudice the Respondent. The changes aim to assist court in fully resolving the matter and to prevent multiple suits. A draft amended claim is attached. That the Application is made in good faith, does not prejudice the Respondent, and serves the interests of justice and equity.

### **The Respondents** case

[4] The Respondent, Sekirevu Wycliffe Adams, a partner in the Respondent entity, swore the affidavit in reply opposing the Applicant's application for leave to amend her memorandum of claim. He avers that he has read and understood the Applicant's application and affidavits, and states they are materially false, frivolous, vexatious, and an abuse of court process. He takes no issue with the Applicant's averments in paragraphs 1-4 except where they refer to the Respondent. He contests the accuracy of paragraphs 5-7 of the Applicant's affidavit and asserts they are based on misadvise. The Respondent contends that the application is an afterthought, legally defective, and its admission would result in a miscarriage of justice. He further argues that the application lacks a summary of evidence and offends procedural rules. He urges the Court to strike it out with costs.

# **Submissions Applicant's submissions**

[5] It was submitted for the Applicant that the primary purpose of the application is to allow the Applicant to correct the mis-description of the Respondent, Bridge Consult, and to include additional material facts and remedies that were not included in the main claim. The application is supported by two affidavits deposed by the Applicant, setting out the factual and legal grounds for the request.

The background to the application reveals that the Applicant was formerly employed by Bridge Consult, but her employment was unfairly and unlawfully terminated. She initially instructed M/s. Sekabanja & Co. Advocates to file a claim seeking recovery of salary arrears and terminal benefits. However, in the course of filing, the Respondent was erroneously described as a limited liability company rather than a registered business name. The Respondent, in turn, appeared to confirm this mis-description in its response, further misleading the Court.

[6] Subsequently, the Applicant sought a second legal opinion from M/s. Kahuma & Co. Advocates, who advised that the claim contained factual and legal deficiencies, including the misidentification of the Respondent and the exclusion of relevant remedies. A joint consultation between both law firms led to the agreement to file an amended claim that would include a correct description of the Respondent and additional remedies necessary for the just determination of the dispute. A draft of the amended claim was attached to the affidavit in support.

It is the Applicant's position that the proposed amendments do not introduce a new cause of action, nor will they prejudice the Respondent. Instead, they will ensure that all matters in controversy are fully resolved and future litigation avoided. The Respondent has already denied ever employing the Applicant; thus, it cannot be prejudiced by further clarity on the nature of the relationship and the remedies sought.

[7] The Applicant further emphasized that the Respondent, Mr. Sekirevu Wycliffe Adams, in his own witness statement, referred to Bridge Consult as a business name and to himself as a partner or manager, not a director or shareholder, confirming the Applicant's contention that the Respondent was improperly described in the initial pleadings. The Applicant argues that the Respondent was aware of the misdescription but chose not to clarify it, thereby risking the issuance of ineffective orders by the Court.

[8] The Applicant relies on persuasive authority, particularly the High Court decision in *Namusisi Yozefina vs. David Kikaawa,* Misc. Application No. 1595 of 2018, where the Court emphasized that amendments to pleadings should be allowed at any stage before hearing to enable the Court to determine the real issues in controversy, provided no injustice is occasioned to the other party.

The Applicant insisted that since the application has been brought before the commencement of the hearing, and since the Respondent has failed to demonstrate any prejudice that would result from the amendment, it is just, equitable, and in the interest of judicial efficiency that the Court grants the application. The proposed amendment will facilitate a fair trial and promote substantive justice between the parties, and prayed that the application be allowed.

### **Respondent's submissions**

[9] The Respondent in its submissions strongly objected to the Claimant's application for leave to amend her Memorandum of Claim in Labour Dispute Reference No. 199 of 2020, on the grounds that it is fatally defective, lacks merit, and is fundamentally tainted with irregularities and procedural impropriety. This is because it introduces a new subject matter that amounts to an entirely new cause of action, brought in a manner that seeks to circumvent both the legal process and procedural fairness.

He contended that whereas she initially filed her claim against Bridge Consult for unpaid salary arrears amounting to Ugx. 22,910,000/= and unpaid NSSF contributions. The amendment she seeks to introduce is against a new party, a one

Sekirevu Wycliffe t/a Bridge Consult. According to him, this amounted to forum shopping and an attempt to cure a fatal defect in the original suit through improper amendment. He relied on *The Trustees of Rubaga Miracle Centre v. Mulangira Ssimbwa* and *Abdulrahman Elamin v. Dhabi Group,* Misc. Appn. No. 576 of 2006, for the proposition that a suit in the names of a wrong party or defendant cannot be cured by mere amendment. And in Abdulraham Elamin v Dhbi Group CA No 15 of 2013, which emphasised that where parties have been wrongly cited, such that it goes to the substance of who the parties are, such an error cannot be amended and a fresh suit will have to be instituted. Counsel also relied on *Makula International v. His Eminence Cardinal Nsubuga,* CA No. 4 of 1981, for the principle that a court should not condone an illegality once it has been brought to its attention because the illegality overrides all questions of pleadings, including all admissions.

[10] He contended that the proposed amendments go beyond mere clarification or expansion of the original pleadings and instead introduce entirely new legal claims, including allegations of unfair termination, unpaid leave, severance allowance, and compensation. He argued that these claims are rooted in different legal provisions under the Employment Act—specifically Section 70, which provides for unfair termination as opposed to Section 40, which governs claims for unpaid wages. As such, the amendment would substantially alter the nature of the dispute and render the original pre-trial proceedings obsolete, thereby prejudicing the Respondent who has already fully complied with court's pre-trial directions.

Moreover, the Respondent argues that the claim for unfair termination ought to have first been reported to a labour officer before being referred to the Industrial Court, in accordance with the statutory dispute resolution hierarchy. Since the original complaint was solely about salary arrears and was not reported to the labour officer as an unfair termination, and therefore it was not referred to this court by the labour officer, the Court lacks jurisdiction to entertain the new claims unless

**i**

proper procedure is followed. He asserted that for this court to allow such amendments would amount to sanctioning a violation of the mandatory procedural requirements under the Employment Act.

[11] He relied on *Mulowooza & Brothers Ltd v. N. Shah & Co. Ltd* and *Master Managers & Traders Ltd v. Madda Tally Allibhai Popat* CA, No.26 of 2010, for the legal proposition that although amendments to pleadings are generally permitted in the interest of justice, they should not be allowed where they introduce a distinct cause of action or substantially change the subject matter of the suit. It was his submission that the proposed amendments, in the instant application, do exactly that, and therefore fall outside the permissible scope under Order 6 Rule 19 of the Civil Procedure Rules. He maintained that the Applicant has failed to discharge the burden of proof required under Section 102 of the Evidence Act. She has not provided any credible evidence to demonstrate that the new subject matter of the claim is consistent with the original pleadings. The application is said to lack focus, is procedurally defective, and has been made in bad faith with the sole intention of defeating the Respondent's defence.

He prayed that in order to uphold procedural integrity, prevent abuse of court process, and protect the Respondent from the prejudice that would arise from reopening a case that had already proceeded through pre-trial stages, the application is dismissed with costs.

### **Rejoinder to the submissions**

[12] In rejoinder, the Applicant insisted that the Respondent has not raised any compelling legal or factual grounds to oppose the application for amendment of the Memorandum of Claim to warrant the dismissal of her application. She refuted the assertion that the amendment was involved in substituting the Respondent or that it introduced a new party, but rather seeks to properly describe the Respondent. She did not deny that she initially filed her claim against "Bridge Consult," a business name owned by Mr. Sekirevu Wycliffe Adams, and the omission of the owner's name was inadvertent. The amendment merely seeks to correct this misdescription for clarity and legal propriety.

[13] In her view, *The Trustees ofRubaga Miracle Centre v. Mulangira Ssimbwa,* which was relied on by the Respondent, is distinguishable because in that case, the defendant lacked legal personality. In contrast, the Respondent in the instant case has not denied owning the business name "Bridge Consult,'' and even acknowledged this ownership in his affidavit in reply. In any case, the Respondent misrepresented himself as a limited liability company in his initial pleadings, which has only served to complicate and obscure the proceedings.

On the legality of the amendment, the Applicant submits that there is no illegality, as the Respondent has participated in the proceedings from the beginning—filing a defence, witness statement, and trial bundle—demonstrating his awareness of being the proper party to the suit.

[14] The Applicant further argues that the amendment does not introduce a new or distinct cause of action. Rather, it seeks to add facts and remedies that arise consequentially from the original labour claim. She submits that remedies such as compensation for unfair termination and severance pay are logically tied to the initial claim and are within the framework of Uganda's labour laws. She relied on *Mulowooza & Brothers Ltd v. N. Shah Co. Ltd* to support the position that amendments may be allowed to add details and reliefs without necessarily changing the cause of action. She challenges the Respondent's failure to point out with specificity the alleged new cause of action or how he would suffer prejudice

from the amendment and argues that the mere fact that the case has progressed to the stage of joint scheduling and filing of documents is not sufficient reason to deny the amendment, especially where justice requires clarification of parties and claims. She invoked the equity maxim that "justice hurried is justice miscarried" to emphasize the need for a fair and complete adjudication.

She insisted that the proposed amendment is necessary, it does not alter the nature of the original labour dispute, and will not prejudice the Respondent; therefore, the application should be allowed with costs.

## **Decision of the Court**

## **Resolution of the Preliminary Objection**

[15] It could be assumed that *Bridge Consult* is a registered 'business name, and not a separate legal entity because *Sekirevu WycliffAdams* in the affidavit in reply stated that he was one of the Partners of the Respondent, but in the absence of any evidence in respect of its registration we were not able to determine its identity. The Claimant did not provide any business registration form or certificate of registration to enable us to determine the identity of Bridge Consult.

This notwithstanding, this Court in *Gyavira Mutayomba v Four Ways Group of Companies,* LDC No. 21 of 2016, suggests that the broad definition of "employer" under Section 2 of the Employment Act, is intended to ensure that an employee is not barred from accessing redress for employment wrongs where employers choose to hide their identity behind the legal and business formations such as corporate separateness. What needs to be established is whether the person or entity exercises managerial prerogative and control, defines work to be done by the employee, controls the tools of trade of the business or organisation, and pays for the work done/salary. This Court's holding in *Godfrey Kyamukama* v *Makerere University Business School,* LDR No. 147 of 2019, is to the effect that where a person recruits an employee, defines and directs the work in the workplace and pays the salary and has power to discipline, he or she or it is considered an employer irrespective of his hers or it's legal identity.

[16] We are further persuaded and fortified by the Kenyan Case of *Daniel Mutisya Masei v Romy Madan & Another* ELRC cause no 691 of 2009, where Rika J stated that, the Employment Act did not bar directors and their companies from being parties in the same claim filed by their employees since the doctrine of corporate separateness is not inviolable particularly in Labour Jurisprudence. And in *Michael Kimeu v Udhabiti Educational Trust, Kenya and 2 others,* ELRC cause No. 394 of 2014, Rika J further stated that Trusts, Trustees, and even persons employed by trusts as Managers could properly fit the description of the term "employer." Therefore, in determining the real employer, the court is expected to look at the whole economic enterprise without limitation to the legal and business reincarnations behind such an enterprise. We strongly believe that this is the reason why the Employment Act defines "employer" expansively as . .a person or group of persons, including a company or corporation, a public or regional or local authority, a governing body of an unincorporated association, a partnership, parastatal organisation or other institution or organisation whatsoever, for whom an employee works or has worked or normally worked or sought to work, under a contract of service and includes heirs, successors, assignees and transferors of any person, or group of persons for whom the employee works, has worked or normally worked."

We had an opportunity of review the main claim and established that the claimant's contracts indicated that she was employed by Bridge Consult. However, its identity was not described in the contract.

[17] Although Mr. Sekirevu stated in the Affidavit in reply that he was one of the partners in Bridge Consult, it is a partnership; here, it can be assumed that Bridge Consult the claimant has not justified his addition to the business name. Even if the law does not bar a partner from being joined as a party together with the company or

business in case of partnerships, the claimant has not shown the prejudice she would suffer if his name were not added. In the circumstances, even if adding a proprietor's name or the director of a company would not be incurably defective, the Claimant has not shown just cause for adding Mr. Sekirevu. We therefore find no merit in this prayer; it is therefore denied.

#### **Merits of the Application**

[18] Be that as it may, the Applicant seeks to amend her Memorandum of Claim to include facts and remedies, which she claims were inadvertently omitted in the original pleadings. It is well-established that courts have the discretion to allow amendments to pleadings where such amendments are necessary for the just determination of the substance of a dispute, provided that the amendment does not introduce a completely new cause of action or cause undue prejudice to the opposing party.

The law on amendment of pleadings is very well settled under Order 6 Rule 19 of the Civil Procedure Rules empowers Court to grant leave to a party to amend their pleadings at any stage of the proceedings. It provides as follows:

"The court may, at any stage of the proceedings, allow either party to alter or amend his or her pleadings in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties."

[19] This discretion granted under Order 6 rule 19, enables substantive justice to be administered without undue regard to technicalities as prescribed under Article 126(2) (e) of the Constitution of Uganda and ensures that the litigation between parties is based on true state of facts and or true reliefs or remedies for completeness and conclusive resolution of the real question or issues between the parties. The right to amend is reciprocal. This enables the other party to amend his or her pleadings as consequential to the amendment. (See *Byaruhanga Guys Vs*

*Sanlam Insurance* LDMA No.168 of 2023). The principles governing the exercise of discretion to grant the order an amendment were well laid down by the *Supreme Court in Gaso Transport Services (Bus) Ltdv Martin Adala Obene, SCCA No. 04 of 1994,* as follows:

- **0)** Amendments are allowed by the courts so that the real question in controversy between the parties is determined and justice is administered without undue regard to technicalities. - **00** The amendment should not occasion injustice to the opposite party. - (iii) It should be granted if it is in the interests of justice and to avoid multiplicity of suits. - (iv) The application should be made in good faith. - (v) No amendments should be allowed where it is expressly or impliedly prohibited by any law. - (vi) The court shall not exercise its discretion to allow an amendment which has the effect of substituting one distinctive cause of action for another. - [20] Although the Industrial Court in the performance of its functions shall have the powers of the High Court and therefore has Appellate concurrent jurisdiction with the High Court, section 8 1(a) and (b) provides that it shall arbitrate on labour disputes referred to it under the Act and adjudicate on questions of law and fact arising from references to it under any other law, respectively. In light of this provision, even if references start denovo when a memorandum of claim is filed before the Industrial Court, such matters must have been referred to the court by the labour officer or under any other law. In the circumstances, any amendment sought must not deviate from the subject matter or be referred to the Court by the Labour Officer or under any other law.

We had an opportunity to consider the complaint the claimant filed before the labour officer and labour officer's reference to this court in respect her claim and

established that the claim she filed before the Labour officer was in respect of unpaid salary arrears for the Applicant, Mbatidde Hellen. The Labour officer's reference was in respect of 2 issues:

i. Whether the claimant is entitled to the unpaid salary arrears?

ii. Whether the claimant is entitled to any remedies?

[21] Her proposed amendment seeks redress for wrongful and unfair termination and for remedies such as compensation for wrongful and unfair termination, for declaration that she was, a declaration that she was disentitled from overtime pay, payment in lieu of notice, all of which were not part of the claim filed before the labour officer. All these are issues that were brought before the labour officer and are therefore new causes being brought before this court by way of a purported amendment of pleadings.

Even if this Court is enjoined to grant leave for the amendment of pleadings any time before or during proceedings, as a court of reference, an application for amendment of a reference to this court must be in respect of the same subject matter that was referred to the Court.

[22] It is glaringly clear that the proposed amendment introduces new causes that were not placed before the Labour officer and were not part of the subject matter that was referred to this court for resolution.

We are therefore inclined to agree with Counsel for the Respondent that the proposed amendment are new causes of actions which are being brought by way of a purported amendment yet they were not placed before the labour officer in the first place and therefore were not referred to this court in accordance with section 8(1) (a) of the LADASA.


[23] In the circumstances, even if the amendment of the Respondent's name may be allowed, the prayer for the amendment of the pleadings on matters that were not referred to this court by the Labour officer cannot stand.

The Applicant should file these matters before the Labour officer first and in the event that they are referred to this court by the labour officer, apply for their consolidation with the claim in respect of salary arrears that was filed before this court Via LDRNo.199 of 2020.

In conclusion, we find no merit in this application it is dismissed. Costs shall be in the main.

## **Orders:**

In the final analysis, the Court makes the following orders:

1. The Application is dismissed, and costs shall be in the main.

Signed in Chambers at Kampala this **13th** day of **June 2025.**

Hon. Justice Linda Lillian Tumusiime Mugisha,

# **Head Judge**

# **The Panelists Agree:**

Hon. Charles Wacha Angulo,

Hon. Beatrice Aciro Okeny &

Hon. Rose Gidongo.