[2025] UGHCCD 65

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

#### [CIVIL DIVISION]

## **MIECELLANEOUS APPLICATION NO. 98 OF 2025**

[Arising from Company Cause No. 30 Of 2019]

IN THE MATTER OF THE INSOLVENCY ACT

AND

IN THE MATTER OF UGANDA TELECOM LIMITED (IN LIQUIDATION)

AND

IN THE MATTER OF AN APPLICATION BY RUTH SEBATINDIRA SC FOR DIRECTIONS REGARDING FULL DISCLOSURE OF UTL'S CONTRIBUTIONS TO THE NATIONAL SOCIAL SECURITY FUND

RUTH SEBATINDIRA SC –

THE ADMINISTRATOR OF UGANDA

$==$ APPLICANT

TELECOM LIMITED- IN ADMINISTRATION

VERSUS

$\equiv$ RESPONDENT NATIONAL SOCIAL SECURITY FUND

# **BEFORE: HON. JUSTICE EMMANUEL BAGUMA**

#### **RULING**

This application is by notice of motion under section 37 of the Judicature Act, section 98 of the CPA, section 176 of the Insolvency Act, rule 203(1) and 216 of the Insolvency Regulations, 2013 and order 52 rule 1 of the CPR seeking for orders $that: -$

a) The Respondent discloses and provides to the Applicant an accurate and current itemized statement reflecting all employer contributions made by Uganda Telecom Limited (UTL) on behalf of all former and current employees that were/are contributor under the Uganda Communications Employees Contributory Pension Scheme (UCECPS) since commencement of the contributions in 1998.

- b) The Respondent discloses and furnishes the Applicant a current and detailed breakdown of the said employer contributions, including all accrued interest earned, on an employee-by employee basis. - c) That the Respondent discloses and furnishes the Applicant an updated itemized statement of all amounts paid out to former employees of UTL that also fall under the said scheme. - d) The costs of this Application be provided for.

The application is supported by the affidavit of **Ruth Sebatindira SC** the administrator of Uganda Telecom Limited (in liquidation) whose details are on record but briefly stated that; -

- 1. By virtual of my appointment under the law, I have a duty to review and take control of all UTL's affairs, including its financial records, accounts and relations with third parties, in order to administer the company's estate for the benefit of all creditors and other interested parties. - 2. On 29^th April 2024, I requested the Respondent to provide information detailing the employer contributions onerously made by UTL to NSSF on behalf of UTL employees that also benefitted from the company's contributions under another scheme called Uganda Communications Employee Contributory Scheme (UCECPS). - 3. I have made numerous efforts to obtain the said information including engaging the top management of the Respondent to no avail. - 4. Without this information I am hindered in my ability to fully account for UTL's assets, reconcile its financial affairs, and conclusively address claims and pending suits commenced by former employees of the company. - 5. The respondent's refusal to avail the requisite information has impeded the administration, preventing me from conducting a proper examination of UTL's liabilities and entitlements, from reporting accurately to this Honourable court and to the company's creditors. - 6. The Respondent will suffer no prejudice by providing the requested records, as these are factual and historical documents pertaining to UTL's own contributions, to which I am lawfully entitled as administrator.

In reply, the respondent opposed the application and in an affidavit sworn by Isaac Ogwang the Senior Legal Manager of the Respondent whose details are on record but briefly stated that: -

- 1. It is true the respondent received requests for the information stated in the affidavit in support of the application but the Respondent did not provide the same because the applicant already has that information requested having remitted the funds to the Respondent in compliance with its obligations. - 2. I know that the applicant's remaining mandate in the administration of Uganda Telecom Ltd is to conclude the hearing in labour claim No. 26 of 2015 Uganda Communication of Employees Union (UCEU) & Others Vs UTL & NSSF where the sole issue for determination is whether members of the Applicants were under excepted employment within the meaning of the National Social Security Act or not. - 3. The information requested for is not helpful to the applicant in her duties and this application is intended to unduly compel the Respondent provide information that is not relevant to the applicant's mandate and deserves to be dismissed.

In rejoinder, the applicant contended that she doesn't have the information requested for as the same is in the sole possession of the Respondent and by failing to release the information requested for, the applicant's mandate is greatly impeded and I cannot conclude my task as an administrator of UTL without the same.

### **Representation.**

Counsel Kabiito Karamagi together with counsel Paul Kasami represented the Applicant while counsel Allan Waniala represented the Respondent.

At hearing, both counsel agreed to file written submissions.

Counsel for the Applicant raised one issue for this court's determination to wit;

Whether the court should direct the Respondent to disclose details of UTL's contributions made on behalf of former employees under UCECPS since 1998?

#### **Submissions by counsel for the Applicant**

Counsel submitted that section 176 of the Insolvency Act gives this court discretion to direct an administrator on any matter concerning the functions of his office. That in HCMA No. 784 of 2020; an application for directions by Ruth Sebatindira SC the administrator of Uganda Telecom Limited as to the apparent inconsistency between clause $5(a)$ and $5(d)$ of the deed of administration this court determined this discretion as a duty to guide the administration process and protect the administor in the exercise of his functions. The court's discretion is further enshrined in section 37 of the Judicature Act.

Counsel referred to the case of Aharikundira Vs Uganda [2018] UGSC 49 where the supreme court stated that the discretion of court is said to be judiciously exercised if it is exercised within the law with a view of doing justice to the parties.

Counsel further made reference to the case of **Re British Commonwealth Holdings** plc (joint administrators) Vs Spicer and Oppenheim (a firm) ALLER [1992]4 **876** where the court confirmed that;

"section 236 of the 1986 Insolvency Act (the section that speaks to "Inquiry into company's dealing, etc by an office- holder such as an administrator) confers "extraordinary" inquisitorial powers intended to assist administrators, such as the Applicant, in uncovering information needed to perform their function............. the power to order disclosure under Insolvency Act section 236 is very broad."

Counsel submitted that in the absence of such specific provision as power of administrators in our Insolvency law, it calls on the court to exercise discretion under section 176 of the Insolvency Act. He submitted that the evidence in support of the application shows that the Respondent has refused to provide the information requested for which hinders the applicant's ability to fully account for UTLs' assets, reconcile its financial affairs and conclusively address claims including labour claim No. 26 of 2015 which must be resolved in the next three months remaining on extended period.

This lack of disclosure creates serious prejudice against the Applicant at significant cost as the Respondent has not demonstrated any harm in providing the information. Its reasons not to provide the information are weak at best and ridiculous at worst. The argument that she already has the information needed is untrue as she doesn't have the interest earned over the years.

Counsel prayed that this application be grant and given the reluctance nature of the Respondent, a daily fine of $50,000,000/$ = be imposed on it in the event that it ever refuses to give the information.

# **Submissions by counsel for the Respondent.**

Counsel submitted that for one to succeed in this application, they must demonstrate that the information sought for is relevant to its functions and is not a mere fishing expedition. The position that the court has a duty to guide the administration process confirms this point. The burden of proof lies on the applicant to demonstrate that information ipso facto is to guide with the administration process and not for any other reason.

Counsel referred to the case of Patricia Mutesi Vs Attorney General HCMA 912 of 2016 where court held that production and inspection of documents will be denied if it is used for a fishing expedition to ascertain information for the purpose of starting an action or developing a defence.

Counsel submitted that the access to the information in the respondent's possession is not relevant to the mandate of the applicant in order to deal with Asset Sale and conclusion of Labour Claim No. 26 of 2015. That the applicant has not demonstration how the information in issue will be relevant in the realization of the Asset Sale and Purchase agreement as well as the settlement of the labour claim. If the information was relevant in the resolution of the labour claim, the applicant would have filed the application in the industrial court and failure to do so confirms that it is in fact not relevant.

Counsel further submitted that this court has a duty to balance the applicant's interest visa vis the respondent's inviolable duty to protect the date of its owners. That if this application was bonafide, the claimants in the labour dispute would have been made party to the application since they are the current owners of the money held by the Respondent and data subjects whose information the applicant seeks to obtain.

Counsel referred to section 7(1) of the Data Protection and Privacy Act which requires that consent of the data subject is obtained before personal data is obtained by a third party. Counsel contended that the data subjects in this case who are the claimants need to be involved and at worst made party to the application.

In regard to a fine of $50,000,000/=$ , counsel for the Respondent submitted that the prayer to condemn the Respondents to pay 50,000,000/= was not pleaded and therefore is without basis. He prayed that this court dismisses the application since the applicant failed to provide the relevancy of the information.

I rejoinder counsel for the applicant reiterated his submissions in chief but added that section $7(2)(e)$ of the Data Protection and Privacy Act permits data processing for compliance with a legal obligation to which the data controller is subject and submitted that the administrator's request for the data is aimed at reconciling the contributions made to the fund for purposes of accounting to court on the quantum of claim.

#### **Analysis of court**

Section 98 of the Civil Procedure Act Cap 282 provides that ;-

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

Section 176(1) of the Insolvency Act provides that;

"On the application of a provisional administrator, court may give directions on any matters concerning the functions of the provisional administrator or *administrator.*"

I associate myself with the decision in the case of Re British Commonwealth Holdings plc (joint administrators) Vs Spicer and Oppenheim (a firm) ALLER [1992]4 876 where the court confirmed that;

"section 236 of the 1986 Insolvency Act (the section that speaks to "Inquiry into company's dealing, etc by an office- holder such as an administrator) confers "extraordinary" inquisitorial powers intended to assist administrators, such as the Applicant, in uncovering information needed to perform their function............. the power to order disclosure under Insolvency Act section 236 is very broad."

In our insolvency law, we do not have a particular provision which provides for administrators applying for inquisitory information and this court has to invoke its inherent powers and discretion to issue orders to ensure that the ends of justice are met.

The applicant in the instant case, an administrator of UTL (in liquidation) asked the Respondent to provide information detailing the employer contributions onerously made by UTL to NSSF on behalf of UTL employees that also benefitted from the company's contributions under another scheme called Uganda Communications Employee Contributory Scheme (UCECPS). The applicant further stated that without the information requested for, she cannot fully account for UTL's assets, reconcile its financial affairs, and conclusively address claims and pending suits commenced by former employees of the company.

The respondent on the other hand refused to give the information requested for stating that it is not relevant to the applicant's mandate, that the applicant already has the information requested for and that doing so would amount to breach of data privacy duty which it owes to the data subjects.

I have considered the kind of data the applicant is asking for from the Respondent. From the evidence on record, the applicant is asking for information detailing the employer contributions onerously made by UTL to NSSF on behalf of UTL employees that also benefitted from the company's contributions under another scheme called Uganda Communications Employee Contributory Scheme (UCECPS) and the interest which accrued on the same. The data requested for is the money which was deposited by UTL and the interest on the same. This is information which is not prejudicial to the data subjects after all it's the company/UTL/applicant that deposited that money.

The interest on the same is not known to the applicant since its not the one that awards interest on the same but the Respondent, so the Respondent cannot allege that the applicant has the information requested for. The applicant who is the administrator of UTL cannot be barred from accessing what UTL contributed from its own coffers for its employee's savings.

The allegation by the Respondent that the employees who are the data subjects should have been made party to the application does not hold since this information is not with the employees but with the Respondent itself. The employees interests are not adverse to administrator in this context given that her role is to act in the best interest of all stakeholders including its former employees.

It is my considered view and opinion that, without the information on the company's contribution to NSSF and interest thereof, applicant will not be able to provide a proper account and reconciliation of what was paid for the employees as required under her duties.

I find that it is necessary for the applicant to access the information requested for the smooth running of her duties as an administrator of UTL.

### **Conclusion.**

In the final result this application is granted with the following orders that;-

- 1. The Respondent discloses and provides to the Applicant with an accurate and current itemized statement reflecting all employer contributions made by Uganda Telecom Limited (UTL) on behalf of all former and current employees that were/are contributor under the Uganda Communications Employees Contributory Pension Scheme (UCECPS) since commencement of the contributions in 1998. - 2. The Respondent discloses and furnishes the Applicant with a current and detailed breakdown of the said employer contributions, including all accrued interest earned, on an employee-by employee basis. - 3. The Respondent discloses and furnishes the Applicant with an updated itemized statement of all amounts paid out to former employees of UTL that also fall under the said scheme. - 4. The Respondent are ordered to avail the requisite information within a period of 14 days from the date of this ruling. - 5. Given the nature and circumstances of this case, I make no orders as to costs.

Dated, signed, sealed and delivered by email this 11^th day of April 2025

Junia

Emmanuel Baguma

Judge