[1994] UGSC 46

Hon. Justice OBER

IN THE SUPREME COURT OF UGANDA

## AT MENGO

( CORAM: MANYINDO D. C. J, ODOKI J. S. C AND PLATT J. SC.)

## CIVIL APPEAL NO 17 OF 1993

BETWEEN

NATIONAL UNION OF CLERICAL COMMERCIAL PROFESSIONAL AND TECHNICAL EMPLOYEES ...... APPELLANTS

## A N D

NATIONAL INSURANCE CORPORATION ............. RESPONDENT

(Appeal from the Judgment of the High<br>Court at Kampala (Rajasingham J)<br>dated 16th December, 1992

in Misc. Application NO.112 of 1992)

## JUDGMENT OF THE COURT

This appeal arises out of a trade dispute between the appellants and the respondent regarding the terms and conditions of service of the appellants who were employed by the respondent. In the course of negotiations for salaries and allowances, for the year 1990, the appellants and the respondent disagreed on terms of the package. They referred the dispute to the Minister of Labour, under the Trade Dispute (Arbitration and Settlement) Act 1964, as amended by Decree 18/74, who in turn referred it to the Industrial Court.

The Industrial Court heard the dispute and found in favour of the appellants on 4th June 1992. The Court made Orders as to effective dates of the awards. On some of the awards like rent and salary the effective date was to be 1st May. 1991, while for lunch and other allowances the effective date was 28th May, 1992.

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He thereafter gave his judgment on merits of the application, including the preliminary objection.

The learned judge held that notwithstanding the express remedy of certiorari being open to the respondent, the court was not precluded from entertaining relief sought under its inherent powers. He granted the two declarations sought that the Industrial Court had no power to review its decision and that the failure of the court to allow cross-examination of its witness amounted to a denial of natural justice. It is against this decision that the appellants now appeal.

The appellants originally filed four grounds of appeal but they were given leave to amend their memorandum of appeal by adding a fifth one. The first two grounds complain that the trial judge erred in law in holding that the respondent could invoke the provisions of section 101 of the Civil Procedure Act for the court exercise its inherent powers when there was an express remedy in form of certiorari or mandamus open to it. The third ground is that the learned Judge erred in law when he held that the Industrial Court acted in excess of its jurisdiction in interpreting the award. The fourth ground complains that the learned Judge erred in holding that there was a denial of natural justice when the Court introduced new evidence and disallowed cross-examination on it. The fifth ground which was added states that the learned Judge erred in law in having heard the preliminary objection and reserved the ruling, he did not proceed to hear the application on its merits but finally proceeded to give judgment on the merits of application.

**Allerisa**

Mr. Semakula learned counsel for the appellants, who also appeared for them in the lower court, repeated the same arguments he made in the lower court when he raised the preliminary objection. His main contention was that a party

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に<br> は<br> は<br> は<br> は<br> に<br> は<br> に<br> は<br> に<br> は<br> に<br> は<br> に<br> は<br> に<br> は<br> に<br> は<br> に<br> に<br> に<br> に<br> に<br> に<br> に<br> に<br> に<br> に<br> に<br> に<br> に<br>

could not invoke the inherent powers of the court where there was a specific provision or remedy open to that party. He relied on the decisions in Attorney General V. Madatal Nazarali Mulji Huda & Others, Civil Application No. 5 of 1988 (CA), Oryema Boniface V. UMSC HCCS NO.1238/88, and Connie Kabanda V. Kananula Melvin Consulting Engineering HCCS NO. 884/90 and Amalgamated Transport and General Workers Union and Uganda Transport Co. Ltd (1972) U. L. R. 171.

On the other hand Mr. Kaggwa for the respondent submitted that a court could invoke its inherent powers even where there was an express remedy. He relied on the decisions of the Court of Appeal Rawal V. Mombasa Hardware Ltd (1968) EA 392 and Adonia Mutekanga (1970) EA 429. Reference was also made to Ujagar Singh Vs. Runda Coffee Estates Ltd (1966) EA.263.

The inherent power of the High Court is provided for in section 101 of the Civil Procedure Act as follows:-

> "Nothing in this Act shall be deemed to limit or otherwise affect the inherent<br>power of the court to make such orders as may be necessary for the ends of<br>justice or to prevent abuse of the process of the Court".

This provision has been well considered by the Court of Appeal in the decisions relied on by counsel for the respondent.

In Rawal V. Mombasa Hardware Ltd (S. ra) the appellants sued the respondent in 1962. No step was taken in the suit for over three years. The court on its own motion and without notice to the parties dismissed the suit under 0.16 r. 6 of the Civil Procedure (Revised Rules 1948). The appellant applied to have this order of dismissal set aside and the suit restored under S.97 of the Civil Procedure Act. The High Court of Kenya dismissed the application holding that its inherent jurisdiction under S.97 was excluded by

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0.16. $r.6$ . The appellant appealed. It was held by the Court of Appeal that the remedy provided by 0.16 r.6 was not intended to be exhaustive and the inherent jurisdiction vested in the High Court by S.97 of the Civil Frocedure Act was for that reason not excluded.

In that case, Sir Charles Newbold P. said at p.394,

"Now I think that any rule which purports to take away the inherent jurisdiction of the courts should be looked at very carefully before it is construed in such a manner, I do not seek to base my decision sorely on this but I should like to refer<br>to the provisions of SS.81 and 97 of the<br>Civil Procedure Act. Section 97 reads,

'Nothing in this Act shall be deemed to limit or otherwise affect the inherent power of the Court to make<br>such orders as may be necessary for<br>the needs of justice or to prevent<br>abuse of the process of the Court'

It is I think important to consider the obvious intention that nothing in the Act should prevent a court from exercising its inherent powers in such a manner as would be necessary to prevent injustice. What it<br>is sought to do in this case is to say that<br>this position arises by reason of the Rules<br>made under the same Act in which $S.97$ <br>appears. Section 81 which is the section giving power to make the Rules says that<br>these Rules shall not be inconsistent with<br>the provisions of the Act. Surely if one were satisfied that the effect of Rules construed in a particular way would be to<br>result in injustice then the provision of<br>S.97 and S.81 clearly show that Rules should not be construed in such a manner".

The decision in Rawal's case was followed in Adonia V. Mutekanga (Supra) whose brief facts were as follows. In 1965 the appellant secured a vesting order under the Registration of Titles Act in ex parte proceedings in the High Court. Subsequently he sold part of the land to third party which sale was duly registered. In 1966 the respondent lodged a caveat and subsequently filed a notice of motion

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to set aside the vesting order of 1965. In 1968 the application to set aside was allowed and an appeal was made against that order. The appellant claimed that in making the order. the High Court improperly relied upon its inherent jurisdiction and that the specific alternative procedure of review should have been applied for by the respondent.

It was held on appeal that the existence of specific procedure provided by a rule does not restrict the courts inherent jurisdiction unless a statute so provides. Spry $J. A.$ said at p.432.

> "On the other hand there is no rule of law as Mr. Kazzora implied that inherent powers cannot be invoked where another remedy is available. The position as I understand it is that the courts will not normally exercise their inherent powers where a specific remedy is available and not rarely if ever do<br>so where a specific remedy existed, but<br>for some reason, such as limitation is<br>no longer available. The matter is<br>however, not one of jurisdiction. The<br>light cause of purisdiction. High Court is a court of unlimited jurisdiction except so far as it is<br>limited by statute, and the fact that a specific procedure is provided by a<br>rule cannot operate to restrict the courts<br>jurisdiction, <u>Rawal V. Hombasa Hardware</u><br>Ltd (1968) EA 392. In the present case,<br>I think the Acting Chief Justice, in choosing to exercise his inherent powers was exercise is judicial discretion and I see no reason to interfere with the exercise of that discretion".

In the present case the learned Judge based his decision on the above two decisions of the Court of Appeal and disagreed with the decisions of the High Court in Amalgamated Transport (Supra) and Oryema V. UMSC (Supra). He then concluded.

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"I have after a study of all the authorities came to the conclusion that notwithstanding even express remedies provided by law, the court is not and cannot be estopped from entertaining an application for relief<br>through the exercise of its inherent powers; the exercise of the inherent power of the<br>court however, is discretionary, and the<br>court will in the exercise of this discretion grant the relief sought only where to do so otherwise would be to deny a right and to do injustice".

We think the learned judge came to the right conclusion. It is now settled that the existence of a specific procedure, provision or remedy cannot operate to restrict or exclude the courts inherent jurisdiction under Section 101 of the statute. Clearly the existence of a specific rule cannot overide the statutory provisions of Section 101 which gives wide residual powers to the court to prevent or correct ! any ijustice. The question whether a court should invoke its inherent powers in a given case is a matter for the Court's discretion which should be exercised judicially. The availability of an alternative remedy or specific provision is only one of the factors to be taken into account, but does not limit or remove the court's jurisdiction. The issue, therefore, is not one of jurisdiction, but one of discretion.

As rebards the exercise of discretion, the learned Judge thought that this was a stronger case in which to invoke the inherent powers of the court than in the case of $\star$ Adonia V. Mutekanja (Supra) where there was a specific procedure of review open to the appellant under 0.42 r.1 of the Civil Procedure Rules. He observed,

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"How much greater is the argument in favour of the exercise of this in layour of the exercise of this<br>inherent power in a case in which<br>appeal, review and revision are not<br>available nor is there any specific<br>provision for any remedy and the<br>aggrieved party can only fall back on discretionary writs".

We agree with the reasons given by the learned judge for exercising his discretion in favour of the respondent. He was entitled to invoke his inherent powers and he exercised his discretion judicially in entertaining the respondent's application. The first two grounds of appeal must, therefore, fail.

The first two grounds would have disposed of the preliminary objection. However, the learned trial judge did not rule on the objection after hearing submissions on it but appears to have allowed some arguments on the merits of the application. He reserved the ruling on the objection which he gave in his judgment. In our view, he ought to have ruled on the objection before proceding to entertain the application on merits. If he intended to give his reasons later, he should have ruled on the objection and reserved reasons for his decision to be given in his judgment.

The more serious complaint is that the learned judge gave his judgment without having heard the merits of the application. The record of proceedings is not quite clear as to what happened since the judge made his notes sparingly. Both counsel conceded that the judge did not record all that transpired during the proceedings. But it is clear that counsel for the appellant did not argue

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the merits of the application which counsel for the respondent attempted to do. This was a very unsatisfactory situation and we cannot be sure, in these circumstances, that the appellants were given a fair hearing for which they were entitled. We therefore find merit in this ground with the result that there must be a re-hearing of the application on the merits.

We were not addressed on the third and fourth grounds of appeal which dealt with the merits of the application. Since as we have held, the parties were not given sufficient opportunity to be heard on the merits of the application, we do not find it necessary to deal with those two grounds of appeal.

Accordingly we allow this appeal in part. We uphold the judge's decision overruling the preliminary objection. We set aside the order granting declarations. We order for a retrial of the application on the merits, before another judge. As the appellants have succeeded in part, we order that they have half of the costs in this court. Costs in the lower court will be costs in the cause.

Dated at Mengo this....................................

1 augmde S. T. Manyindo DEFUTY CHIEF JUSTICE

B. J. Odoki JUSTICE OF THE SUPREME COURT

H. G. Platt

JUSTICE OF THE SUPREME COURT