[2022] UGIC 59

# **LABOUR DISPUTE MISC. APPLICATION NO. 16 OF 2021 ARISING FROM LABOUR DISPUTE APPEAL NO. 39 OF 2019 ARISING FROM KCCA-NAKAWA LABOUR COMPLAINT NO. 353OF 2018 THE REPUBLIC OF UGANDA IN THE INDUSTRIAL COURT OF UGANDA AT KAMPALA**

### **THE COOPER MOTORS**

**CORPORATION (U) LTD APPLICANT**

### **VERSUS**

**BASIL BISASO RESPONDENT**

**I**

**BEFORE:**

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

**i. MS. HARRIET MUGAMBWA NGANZI**

**2. MR. FX. MUBUUKE**

**3. MR. EBAYAU FIDEL**

#### **RULING**

This application is brought by Notice of Motion under section 82 and 98 of the Civil Procedure Act Cap 71, S.33 Judicature Act, O.46 r 1, 2818 of the Civil Procedure Rules S.i 71-1 seeking the following:

- 1. The review of the award and orders of Court made in Labour Dispute Appeal No. 39 of 2019 - **2.** That Labour Dispute Appeal No. 39 of2019 is reinstated and determined on its merits.

- 3- In the alternative, Labour Complaint No. 353 of 2018 is referred back to a different Labour Officer for re- hearing and determination. - 4- Costs ofthe Application are provided for.

# The Applicant's case

l\

The Applicants case as stated in the Notice of motion and supporting Affidavit sworn by Ms. Sabano Mercy Pabire, an Advocate practicing with Nakiranda & Co. Advocates, is summarised as follows:

- 1. The Applicant filed Labour Dispute Appeal No. 39 of 2019 against the decision ofthe Labour officer at Nakawa via Labour complaint 353 of 2018. - 2. That the Applicant did not file submissions in response to the Respondent's Preliminary objections. - 3. That on 29/01/2021, this Court delivered an award in the Appeal wherein the Appeal was set aside on the grounds that, the ruling and record of proceedings which the Labour officer had forwarded were unauthentic for being unsigned, undated and unstamped. - 4- This award was made in error because, the Applicant filed submissions in response to the Preliminary objections and there existed on record a signed, dated and stamped ruling which the labour officer forwarded subsequent to the record of proceedings she had forwarded. - 5. That the said mistakes and errors are so manifest and clear that they do not require extraneous matters to show their correctness and no court ought to permit them to remain on the record. - 6. That there exists sufficient reason to warrant the review of the decision in the Appeal and for the Appeal to be heard and determined on its merits. - 7. In the alternative, but without prejudice that Labour complaint 353/2018 is referred to another labour Officer for re- hearing and determination.

**2**

8 It \* s just fair and equitable for the award and orders made under Labour Dispute Appeal No. 39 of 2019, reviewed and set aside and the Appeal is reinstated and decided on its merits.

**I**

# The Respondent's case

**a**

The Respondent's case as set down in the Affidavit in reply sworn by the Respondent Basil Bisaso, is summarised as follows:

- 1. That the Respondent was suffering from Covid 19, and was therefore unable to meet with his lawyers on 24/02/2021, to appreciate this application. However, with the aid ofhis lawyers M. Kamanazi & Co. Advocates he read and understood the Notice ofMotion and the affidavit in support. - 2. He opposed the application for review and specifically, paragraphs 2-17 of the Affidavit in support of the Application sworn by Sabano Mercy Pabire and on the advice of his lawyers and his own believe that, the application is misconceived and bad in law and his lawyers will raise a preliminary point oflaw to strike it out. - 3. He opposed the review ofthis Court's award in Labour Dispute Appeal No 39/2018, because the basis ofthis Application is a disguised Appeal. - 4. That as advised by his lawyers, he believes that this Court's award in LDA No. 39/2018 cannot be reviewed to set it aside because the Applicant expressly admits that the ruling which formed the basis of her appeal was unsigned, undated and unsealed, thus rendering the appeal a nullity abinitio and not an error on the face ofthe record necessitating review. - 5. Refuted the assertion that, the authentic ruling sent by the labour officer to the Registrar ofthe Court formed part ofthe record ofAppeal neither was it intended to perfect an incompetent Appeal.

- 6. That as advised by his lawyers, Counsel for the Applicant had a duty to prepare a correct record of appeal and to ensure that the ruling she was appealing against was signed and authentic. - 7- That this court's award in the Appeal was accurate and based on admitted facts was not made in error apparent on the face ofthe record. - 8. That the fact that the Applicant avers under paragraph 10 ofthe affidavit in support that she does not contest the signed ruling forwarded by the labour officer, meant that the Appeal was filed in error and she cannot turn around now and ask for a retrial which is outside the scope ofreview and was never ground of appeal. - 9. That no new matter has been adduced as evidence that was not in the Applicant's knowledge or could not be adduced by her when the order was passed, therefore the is insufficient cause to warrant review ofthe decision ofthis court since the signed ring will not change the mind ofthis court. - **10.**That it is in the interest ofJustice that the Application for the review ofLDA No. 39 of 2018 is dismissed with costs to the Respondent.

# **Preliminary Objection against the Reply to the Application**

**I**

Before arguing the Applicant's case, Counsel for the Applicant contested the validity of the Respondent's Affidavit in reply, on grounds that, it was filed and served on the Respondent out ofthe time without leave of court. Counsel argued that, whereas, the Respondent was served with the Application through his Advocates M/s M. Kamanzi &Co. Advocates on 22nd February 2021, he only filed his reply on 12th April 2021, which was outside the ¹⁵ days permitted by law and moreover without first applying for extension oftime. She relied on **Senyondwa Partrick & another Vs Lucy Nakito H. C. M. A. (Land Div.) No. 1103 of 2018,** in which Justice Hon. Henry I. Kaweesa emphasised the requirement for a party to reply to an application within ¹⁵ days, failure of which it would be out of time,

ss leave to file out of time is sought from and granted by court. Therefore, the Respondent having filed his to the instant application out of time and without leave of Court, it should be struck out so that, application remains unopposed.

**1**

In reply, Counsel for the Respondent submitted that, Courts have stated that, affidavits in support or opposition of an application are evidence on oath and not pleadings. Therefore, time constraints regarding affidavit evidence is misplaced. Citing **Lam-Lagolo VS Muni University (Misc. Civile Cause No. 007 of 2016) [2017] UGHCCD 85,** in which Hon. Justice Steven Mubiru 's holding is to the effect that, unlike pleadings which are intended to disclose to the other party the facts ofone's case, therefore requiring adherence to timelines within which they should be filed, Affidavits on the other hand most often contain evidence in support of a case. Therefore, even if it is not good practice for affidavits in reply to be filed in disregard to procedure it was not mandatory and *Order 52 Rules* 3 *and* 7 *ofthe Civil Procedure Rules... indicate that thefiling ofan affidavit alongside ^a notice ofMotion or Chambersummons is optional, only when evidence is required in support of the application.* It was his submission that, the Respondent was unable to reply to the instant application in time because on 24/02/2021, he was diagnosed with the COVID 19 pandemic which made it difficult for him to meet his Advocate to prepare a response. In his view, the late filing of the affidavit in opposition to this application is a technicality which does not go to the root of the case and which can be cured by Article 126 (2) (e) ofthe 1995 Constitution as amended. Additionally, he contended that, failure by Counsel to apply for extension oftime to file an affidavit out oftime should not be visited on innocent litigants. He relied on **Mutaba Barisa Kweterana Ltd vs Bazirakye Yeremiya ,Court ofAppeal Civil Application No. 158 of 2014,** and **Lam -Lagoro vs Muni University (supra)** which are to the effect that, in the interest ofJustice court is entitled to refuse to take heed to a technicality in procedure which does not


cause prejudice to the opposite party because rules are not an end in themselves, but they are provided to secure inexpensive and expeditious completion of litigation in courts and this is the rationale for *Article ¹²⁶ (2) (e) of the* 1995 *Constitution ofthe Republic ofUganda.*

Counsel argued further that, in any case, the applicant did not file an affidavit of service in accordance with Order ⁵ Rule 16 ofthe Civil Procedure Rules. According to him and it is trite law that, the serving officer must file an affidavit ofservice as proof of service. He relied on **Bishop Patrick Baligasiima vs Kiiza Daniel (Misc. Application No. 1459 of 2016),** in which the affidavit of service was not attached to the pleadings or to the submissions, thus rendering it difficult for court to determine the date of service and contended that, the Applicant in the instant case did not file an affidavit ofservice to warrant audience ofthis Court on this point, therefore, the preliminary objection should be overruled.

rule 3(2) provides In rejoinder, Counsel for the Applicant insisted that Order ¹² that;

"... *a reply to the application by opposite party shall befiled withinfifteen daysfrom the date ofservice ofthe application and be served on the applicant within* ¹⁵ *days from the date offiling of the reply* and on **Mulindwa George William vs Kisubika Joseph CA No. ¹² of 2014,** *in which the supreme court stated that, a litigant who relies on the provisions ofArticle 126(2.)( e) mustsatisfy the Court that in the circumstances ofthe particular case before the court it was not desirable to pay undue regard to a relevant technicality,"she* insisted that the Respondent did not move court to allow him an extension oftime to file or validate the reply out of time therefore, and yet Order ⁵¹ rules 3 and 6 of the Civil Procedure Rules provides for circumstances where limited time has been fixed for doing any act or taking any proceedings under the CPR, can be extended with leave of court. She argued that the Respondent has not shown sufficient cause for court to

**J**

**se** its disci etion to allow the reply filed out of time and refuted the claim ' the Respondent was diagnosed with Covid 19, because he did not prove it. She argued that, the Applicant filed an affidavit of service on 10/03/2021 and a copy ofthe same is attached on the record.

**I**

## **DECISION ON PRELIMINARY OBJECTION**

**-**

**A**

/ After carefully considering both Counsel's submissions, on the Preliminary point, the Notice of Motion and the affidavits in support and in opposition of and in rejoinder, to the application, it was established that the contention of Counsel for the Applicant, is whether the Affidavit in reply is competent before this Court, having been filed outside the time prescribed by law?

**Order 12 rule** 3(2) ofthe Civil Procedure Rules(CPR) provides that, service of an interlocutory application on to the opposite party shall be made within ¹⁵ days from the filing of an application and a reply to the application by the opposite party shall be filed within ¹⁵ days from the date ofservice ofthe application and be served on the applicant fifteen days from the the date of filling of the reply. **Fredrick James Jjunju & Anor vs Madhvani Group Limited Misc. Application No. 688 of 2015 (Arising from Civil Suit No. 508/2014,** settled the position of the law regarding service of Applications whether by Chamber Summons, Notices ofmotion or Hearing Notices as follows:

"... *the position of the law is that Applications, whether by Chamber Summons or Notices ofMotion and or Hearing Notices, are by law required to be served following after the manner of the procedure adopted for service ofsummons under Order ⁵ r.i CPR. This position was taken in the case ofAmdan Khan vs Stanbic Bank (U) ltd HCMA 900/2013, in which this court followed the supreme Court decision in Kanyabwera vs Tumwebwa[2oo\$] 2 EA 86 where, atpage 94 ofthejudgment, OderJSC(R. I. P) held as follows: "What the rule stipulates about service of summons in*

*-Pinionapplies equally to service ofhearing notices. " [underlined for emphasis.*

Order ⁵ r. 2 ofthe CPR, provides as follows:

2) *Service ofsummons issued undersub rule (1) ofthis rule shall be affected within twenty-one days from the date of issue; except that the time may be extended on application to court, made within fifteen days after the expiration ofthe twenty-one days showing sufficient reasonsfor the extension."*

served on The Applicant contended that, whereas the Respondent was 22/02/2021, he only filed his reply on 12/04/2021, which was outside the time prescribed by law . However, when we perused the record, we established that the Affidavit ofservice which the Applicant attached as evidence ofservice, bears an illegible stamp which was purportedly appended by the Respondent's Lawyers on the first page ofthe notice ofmotion as acknowledgement ofservice. We were therefore unable to concisely determine whether the Respondent was actually served with the Notice ofmotion as alleged by Counsel for the Applicant.

In the circumstances, even ifwe do not associate ourselves with the Respondent's explanation for his late reply and it is the legal position that rules of procedure must be complied with, the Applicant affidavit ofservice as already discussed was not sufficient to show that, the Respondent was effectively served. We are also persuaded by Justice Mubiru in **Lam-Lagolo VS Muni University (Misc. Civil Cause No. 007 of 2016) [2017] UGHCCD 85,** that "... *Whereas a Written statement ofDefence presents allegations offacts the defendant will reply on, an affidavit in reply represents evidence on oath. Affidavits are ^a way ofgiving evidence to Court other than by giving oral evidence, they are intended to allow a case to run more quickly and efficiently as all parties know what evidence is before court. Consequently, time constraints applied to defences maybe misplaced when applied to affidavits..."*

**8**

**I** olding was further to the effect that, an Affidavit in reply being evidence ght to be filed onto the opposite party within reasonable time before the hearing date to allow the party to respond to it, therefore it is not fatal to exercise some level of flexibility and discretion as provided under Article 126(2)(e) in circumstances where it will not prejudice the opposite party.

**ll**

As already stated above ,we were unable to ascertain that, the Respondent was served because the purported receiving stamp is illegible. We are however certain that, the Applicant on the other had received the reply before the hearing ofthe application and even filed a rejoinder. In the circumstances, we find no merit in the preliminary objection because there is no prejudice suffered by the Applicant. It is therefore overruled.

## **Respondent's Preliminary Objection**

**J** J?

**V?**

Counsel for the Respondent also raised a preliminary point of law to the effect that, the deponent ofthe affidavits in support ofthe Application dated 18/02/2021 and in rejoinder, sworn by a one Sabano Mercy Pabire, was incompetent because she lacked authority from the Applicant Company to depone it on its behalf. Counsel contended that, there was no evidence on the record to show that Sabano Mercy Pabire, was authorised to swear the Affidavit as provided under Order 3 rule ¹ of the Civil Procedure Rules SI71-1, which provides that any appearance or act in any Court may be done by a person authorised to act on behalf of another. He also relied on Owori **Media (U) Limited &another vs. Eco Bank Uganda Limited (Misc. Application N0.1105 of 2014),** which cited **Makerere University vs Mark Education Institute & Ors, (HCCS No. 378 of 1998),** where it was held that; "An *affidavit is defective by reason ofbeing sworn on behalf of another without showing that the deponent has the authority of the other".*


affidavit. It Counsel quoted paragraph ¹ ofSabano's affidavit, as follows: *"I am a female adult Uganda (sic) ofsound mind and an Advocate ofthe High Court well versed with the facts in this matter and depone this affidavit in that capacity..."* and contended that, she does not explain how she obtained authority to depone the affidavit on behalf of the Applicant Company nor did she attach the said authority to the was his submission that, the circumstances under which an Advocate's affidavit can be accepted were discussed by Justice Madrama in **Standard Chartered Bank Uganda Limited vs Mwesigwa Godfrey Philip (Misc. Application No. 477 of 2012),** where he held that;

**7** ft

"... *an Advocate is entitled to make an affidavit in support ofapplication as may be enabled in Order* ¹⁹ *Rule* 3 *ofthe Civil Procedure Rules Cap* 71. *All the Advocate needs is to indicate is that he has instructions or that he or she is handling the matter as an advocate having conduct...".*

He insisted that, from the reading of the affidavit in support of this application and that in rejoinder both sworn by Sabano Mercy Pabire there is nothing to indicate that she received authority to swear them on behalf of the Applicant Company. According to him, there is no nexus between the deponent and the Applicant Company. He insisted that, she has no powers of attorney neither is she an authorized agent or an advocate with instructions or personal conduct to depone such affidavits on behalf of the Applicant Company. Therefore, the said affidavits purportedly sworn by Sabano Mercy Pabire, on behalf ofthe Applicant Company should be struck out for being inherently defective for want of authority and this Application should be dismissed with costs.

In reply Counsel for the Applicant, in rejoinder submitted that Sabano Pabire clearly states that she is an advocate in M/s Nakiranda & Co Advocates, a firm retained by the Applicant to handle this case and is thus fully aware ofthe facts of the case. According to her, Sabano depones on matters relating to the law **I**

g to review of Judgements and filing of documents outside the legal imelines, which matters are within her knowledge and belief. She argued that Order 19 rule 3(1) provides that, affidavits shall be confined to facts in one's own knowledge to prove. She relied on **Ham Enterprises Ltd & Others vs Diamond Trust bank ganda Ltd & Another HCMISc. ApplN No. 654/2020.**

**I**

## **RESOLUTION OF PRELIMINARY POINT OF LAW**

## **Whether the Affidavit in support ofthe Application is competent?**

The gist of the objection as we understand it is that, Ms. Sabano Mercy Pabire who swore the Affidavit in support of this application did not adduce any evidence to show that she had authority to depose it.

It is trite that an Affidavit is a statement in writing, made on oath or affirmation. It basically contains matters which the deponent knows or believes to be true, and which are the basis for determining questions offacts.

Order 19 rule 3(1) provides the scope of affidavits as follows:

**©**

*(1)Affidavits shall be confined to suchfacts as the deponent is able on his or her own knowledge to prove, except on interlocutory applications on which statements of his or her belief may be admitted, provided grounds thereofare stated.*

In the Affidavit in support ofthe instant Application, Sabano Mercy Pabire states that, her address is C/o **Nakiranda** & Co Advocates , Kisozi Complex. In paragraph ¹ ofthe Affidavit she states that;

*"1. That lam a female adult Ugandan ofsound mind and an advocate of the High Court of Uganda well conversant with the facts of this matter and depone this affidavit in that capacity.*

**11**

to he fact that she is an Advocate, leaves no doubt in our minds that, she practices law in the law firm of M/s Nakiranda and Co Advocates, which has instructions argue this application. It is our considered opinion that, the law firm was therefore, authorized to appear, plead or act for the Applicant in any proceedings or legal matters and by implication all the law firms' officers(lawyers) were by virtue ofthese instructions, ceased with the authority to act for and on behalfof the Applicant in any legal matter. Therefore, the law firm and its officers are duly appointed to act for and on behalfofthe Applicant Company.

Order 3 rule ¹ provides that:

**'hi**

*"Any application to or appearance or act in any court required or authorized by the law to be made or done by a party in such court may except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his or recognized agent, an advocate duly appointed to act on his her behalf ^L (emphasis ours), expert that any such appearance shall ifthe court so directs be made by the party in person."*

Therefore, as an officer of the firm which had instructions to represent the Applicant Ms. Sabano Pabire was dressed with authority to represent the Applicant and by implication she was authorized to swear an Affidavit on behalf ofthe Applicant.

A perusal of the affidavit indicates that, its substance and content substantially relate to the grounds for this application for this Court to review its award. There is no evidence on the record to indicate that Sabano Mercy Pabire is counsel in personal conduct of this application, which would amount to a violation of Regulation 9 of Advocates (Professional Conduct) Regulations, which prohibits Advocates from being involved in clients cases. She therefore was within Order 3 rule ¹ supra.

**J**

**1**

circumstances, the affidavit is competent before this court. The Preliminary objection is therefore, disallowed.

## **SUBMISSIONS THE SUBSTANCE OF THE APPLICATION**

**Whether the application for review of the award in LDA. No. 39 of 2019 should be allowed.**

It was the submission ofCounsel for the Applicant, that an Application for review is governed by Section 82 ofthe civil Procedure Act Cap ⁷¹ and Order 46, Rule 1,2 and 8 of the Civil Procedure Rules SI. 71-1. she also cited **Al. Shefi Investment Group LLC vs Ahamed Darwich Dagher and another (Land Div)M. A. No. 901 of 2017,** which relied on *Re-Nakivubo Chemist (u) Ltd (1979) HCB 12,* where Manyindo J, as he then was, held that the three cases in which a review of a judgement or orders is allowed are those of:

- a) Discovery of new and important matters of evidence previously overlooked by excusable misfortune. - b) Some mistake apparent on the face ofrecord. - c) For any other sufficient reasons, but the expression "sufficient" - d) Should be read as meaning sufficiently analogous to (a) and (b) above.

According to Counsel, "error apparent on the face of record", was expounded upon in *Mulla The code of Civil Procedure (18th Ed. Vol. ¹ at page 1147.* as follows; *"where a statement appears in the judgement of a court that ^a particular thing happened or did not happen before it, it ought not ordinarily to be permitted to be challenged by a party unless both parties to the litigation agree that the statement is wrong or the court itselfadmits that the statement is erroneous. In such circumstances, the remedy available is review."* She also relied on **Attorney General** & **Ors vs. Boniface**

**Byanyima HCMA No.1789 of 2000 and MK Creditor Limited vs Owara Patrick H. C. M. A. (Comm) No. 143 of 2015,** for the legal proposition, that the error must be self-evident; not one that has to be detected by process of reasoning, it must be part of the record, must be visible, it must be a patent, manifest and self-evident error which does not require elaborate discussion of evidence or argument to establish.

**7**

She argued that it was the evidence ofin the Affidavit in support that, Court in its ruling found that the Applicant did not file submissions in response to the Respondent's preliminary objections, yet the said submissions were filed on 22/09/2020 and served on the Respondent's advocates on the same day. She attached the same to the Affidavit as **Annexure** "B." She also contended that, Court in the same ruling stated that, the record did not have an authentic award by the Labour Officer, yet after realising that she sent an unsigned and undated award to the Industrial court, she wrote to the Registrar on 21/10/2020, forwarding what she referred to as "a certified copy of the ruling which she delivered on 4/10/2019 . Counsel contended that, the Applicant did not express any objection to the said ruling as it was not different from the unsigned one in material particular. Therefore, the court's ruling and award which was made without consideration of the Applicant's submissions and the Labour Officer's ruling constituted errors apparent on the face of record and this amounts to sufficient grounds for review. She contended further that, it would be an injustice to allow the Applicant's Appeal to collapse on account of the Labour Officer, who deliberately forwarded to this court an unsigned ruling. In her view, this was sufficient reason to warrant review of the decision of court, setting aside the judgement and orders of this court and the hearing and determination of the Applicant's appeal No. 39 of 2019 on merit. It was her submission that, in the alternative but without prejudice, ifcourt is inclined to maintain its position that, the Labour Officer's unsigned award was unauthentic, Court should order that,

**14**

Claim No. 353 of 2018 is tried again before an independent Labour ' because an unsigned and unauthentic ruling cannot be authenticated by the same Labour Officer who vehemently denied authoring it, yet she is the very person who forwarded it to Court. It was her prayer that, the unsigned ruling which was forwarded by the Labour Officer and later denounced by herself should be declared null and void and the Application and prayers made thereunder are allowed with costs to the Applicant.

**\*1**

*in* reply, Counsel for the Respondent opposed the Application and stated that, when Labour Dispute Appeal No. 39 of 2019 came up for hearing, the Respondent's Counsel raised a preliminary point ofthe law to the effect that, the ruling which constituted part ofthe record ofAppeal was unsigned, undated, and unsealed a fact which the Applicant does not deny. The parties addressed the court on the preliminary point oflaw and the Court upheld the said preliminary point oflaw in its ruling delivered on 29th day ofJanuary 2021, thereby striking off LDA No. 39 of2019 for being incurably defective. It is the said ruling which struck offthe Labour Dispute Appeal No. 39 of 2019 which the Applicant intends to be reviewed by this Court. Counsel contended that, review is provided for under Section 82 ofthe Civil Procedure Act Cap 71, Laws of Uganda as follows:

*"Any person considering himselfor herselfaggrieved-*

**■0**

- *a) by a decree or orderfrom which an appeal is allowed by this Act, butfrom which no appeal has been preferred or* - *b) by a decree or orderfrom which no appeal is allowed by this Act, may apply for review ofjudgment to the Court which passed the decree or made the order and the court may make such order on the decree or order as it thinks fit".*

According to Counsel, Hon. Justice Musa Ssekaana defined Review in **Deox Tibeingana vs Vijay Reddy (Misc. Application No. 665 of 2019)** to mean "...

**15**

*reconsideration oforder or decree by a Court which passed the order or decree. The law on review is set out in Section 82 ofthe Civil ProcedureAct and Order 46 ofthe Civil Procedure Rules SI71 - ¹ and review can only be granted under the circumstances outlined in the law.*

**I1I I**

> He also cited Order 46 Rule ¹ of the Civil Procedure Rules SI ⁷¹ - ¹ provides for Review and argued that; application for review of a decree or order of a court, upon some ground other than the discovery ofthe new and important matter or evidence as is referred to in Rule ¹ of this order, the existence of a clerical or arithmetic mistake or error apparent on the face ofthe decree, shall be made only to the Judge who passed the decree or made the order sought to be reviewed and this position is reiterated in **Jim Nganwa** & **others vs Gemtel Limited Labour Dispute (Misc. Application No. 99 of 2019),** where this court stated that; it is trite law that for a court to be moved to review its own decree or order the Applicant must prove that;

- a) He or she had discovered new and important matter ofevidence which in spite ofthe exercise of due diligence was not within his knowledge at the time the Judgment or decree was entered. - b) There is an error on the face ofthe record, the error must be so manifest and clear that no court would permit such an error on the record. A wrong application of the law or failure to apply the appropriate law is not an error on the face ofrecord, (see FX Mubuuke vs UEB HCMA No. 98 of 2005) - *c)* That there is sufficient cause to warrant the review ofthe decree similar to discovery ofthe new evidence or error apparent on the record."

He also relied on **Re Nakivubo Chemists (U) Ltd [1979] HCB12,** in which it was held that *the expression sufficient cause should be read as meaning sufficiently of a kind of analogous to the discovery of new and important matter of evidence* y *overlooked by excusable misfortune and some mistake or error apparent e face ofrecord.* He contended that, none of the above grounds for review exist or have been proved by the Applicant in this matter. According to him, it is not in dispute that, the ruling which constituted part ofthe record of appeal for LDA No. 39 of 2019 which was filed in this court by the Applicant on ¹³th March 2020 was unsigned, undated and unsealed which contravenes Order ²¹ Rule 3(1) ofthe Civil Procedure Rules. This is the basis on which this honorable Court and rightly so struck out LDA No. 39 of 2019

**1**

He contended further that, under paragraph 10 of the affidavit in opposition to this Application and annexure "BBi" attached thereto, the Respondent proves that the Labour Dispute Appeal No. 39 of 2019 was filed by M/S Nakiranda &Co. Advocates on the ¹³th day ofMarch 2020 on behalf ofthe Applicant Company and under paragraph 7 of the affidavit in support of this Application and the annexture "A"attached thereto, the Applicant proves that the Labour Officer in her letter dated 21st October 2021, disowned the unsigned, undated and the unsealed award/ruling which constituted part ofthe Applicants record of appeal vide LDA No. 39 of 2019. The Labour Officer went ahead to forward a copy ofthe award which is signed, dated and stamped as required by law. It was his submission that the ruling which was sent by the Labour Officer on ²¹st October 2020, long after the applicant had filed LDA No. 39 of 2019 does not constitute part ofthe record of appeal for LDA No. 39 of 2019 and did not cure the defect in the said appeal.

Therefore, this application for review purportedly premised on the account of error on the face *of* the record is misconceived, untenable and an abuse of the Court process as there is no such apparent error on the face of the record as the Applicant mistakenly believes.

The Respondent s evidence under paragraph 7 ofhis affidavit in opposition to the application is that this Honourable court held that "we have carefully perused the record of appeal and found that indeed the award oattached thereto on pages ¹³ to 21, is unsigned, undated, and unsealed by the Labour Officer. It is trite that for a ludgment or order to be considered authentic and binding, it must be signed by the Judge or quasi -judicial officer who delivered /made it. It must be sealed with the Court Seal or in the case of a quasi-judicial officer such as the Labour Officer with the stamp ofthe Labour Officer where it was made and it must bear the date on which it was handed down or made."

ft

He argued further that, under paragraph 8 of the Respondent's affidavit in opposition , the Respondent states that the Applicant expressly admits under paragraph 5 ofits Affidavit in support that the copy ofthe ruling which formed part of her appeal vide LDA No. 39 of 2019 was unsigned, undated and unsealed and it is an admitted fact that, the said appeal was a nullity and/or void abnitio and not an error /or mistake apparent on the face of the record necessitating review.

He submitted further that, it is the Respondent's evidence in paragraph 5, 6,11, ¹³ and 14 of the affidavit in reply that, Labour Dispute Appeal No. 39 of 2019 cannot be subjected to review since the applicant does not satisfy any of the grounds for review.

The applicant's prayers that, the decision and award made in the Labour Dispute No. 39 of 2019 be reinstated and an order that the Labour Complaint No. 353 of 2018 be referred to a different independent Labour Officer for rehearing were not envisioned by the law on review and are meant to mislead court into reinstating an appeal which is incurably defective on account ofbeing founded on unsigned, undated and unsealed award/ruling which was even disowned by the Labour Officer in her letter dated 21st October 2020. He argued that the record of appeal

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**L**

Dispute Appeal No. 39 of 2019 was filed by Counsel for the Applicant the award on which the said LDA No. 39 of 2019 emanates and which forms pait of the record of appeal is unsigned, undated and unsealed. In preparations of records of appeal, the Advocates/Counsel for the Appellants have the duty to ensure correctness of the record of appeal, which duty was abdicated in this matter by Counsel for the Applicant. He contended that after admitting that the it filed defective ruling/award, it was strange for the Applicant to turn around to put the blame on the Labour Officer. He insisted that there is no error on the face of the record as Counsel for the Applicant claims, because Court rightly struck out a an appeal which was based on an unauthentic ruling ofthe Labour officer.

ft

**A**

In his view, mere error or wrong view is certainly no ground for review although it may be a ground for appeal. He relied on **Abdala Ramathan (Administrator of the late Noah Ramathan) vs Agony Swaib (Misc. Application No. 67 of** 2016).

He submitted that, Order 46 Rule 3(1) of the Civil Procedure Rules SI 71-1 this Court has power to reject an application for review which does not have sufficient grounds for review. It provides that *"Where it appears to the Court that there is no sufficient groundfor review, it shall dismiss the application. "*

He contended that Application was an abuse of court process as defined by as defined by Hon. Justice Musa Ssekaana defined abuse ofCourt process to in **Deox Tibiengana vs Vijay Reddy (Misc. Application No. 665 of2019)** where he cited the definition in Black's Dictionary (6th Edition) as "A *malicious abuse pfthe legal process which occurs when a party employs it to some unlawful object, not the purpose which it is intended by law to effect, in other words ^a perversion ofit. and in* **Seraki vs Katoye (1992) 9 NWLR (pt 264) 156 at 188.** He insisted that the application was an abuse of court process, intended to reinstate an incompetent

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ppeal and to frustrate the execution ofthe decree for the Labour Officer's award, herefore, it should be dismissed with costs to the Respondent.

## DECISION OF COURT

Section 82 ofthe Civil Procedure Act cap ⁷¹ provides that, *"... anyperson aggrieved by a decree or order from which an appeal is allowed but no appeal has been preferred or by a decree or order in which no appeal is allowed may applyforreview ofjudgment to the Court which passed the decree or order, and the Court may make such order on the decree or order as it thinksfit.*

Order 46 rule i(b) of the Civil procedure Rules also provides that any person considering himselfor herself aggrieved;

- *a) ...* - *b) By decree or orderfrom which no appeal is hereby allowed and who from discovery ofnew and important matter or evidence which after the exercise ofdue diligence (emphasis ours) was not within his or her knowledge or could not be produced by him or her at the time when the decree was passed or order made, or on account ofsome mistake or error apparent on theface ofthe record, orfor any other sufficient reason, desires to obtain ^a review ofthe decree passed or order against him or her, may apply for ^a review ofjudgment to the court which passed the decree or orderfor review.*

It is trite law that for a court to be moved to review its own decree or order the Applicant must prove that:

*a) He orshe had discovered new and important matter ofevidencewhich in spite ofthe exercise ofdue diligence was not within his knowledge at the time the judgment or decree was entered.*

*) here is an error on the face ofthe record, the error must be manifest and tear and no court would remit such an error to remain on the record such as ^Q wrong application ofthe law orfailure to apply the appropriate law (see FX Mubuuke vs UEB HCMA No. 98/2005.*

**ft**

**&**

*c) That there is sufficient cause to warrant the review ofthe decree similar to discovery ofnew evidence or an error apparent on the record.*

The Applicant seeks a review of this courts award in LDA No 39 of 2019 on the grounds that court omitted to consider its submission in response to a Preliminary point oflaw raised by the Respondent contesting the Validity ofthe Appeal because it was based on an unauthentic unsigned, unstamped and undated d award ofthe labour officer, leading this Court to setting Appeal aside.

It is not in dispute that the record of Appeal which was filed in this court on 13/03/2020 bore an unsigned, unstamped and unsealed award of the labour officer.

It is not in dispute that when the Respondent raised a preliminary objection to that effect, on 1/10/2020, M/S Kamanzi Counsel for the Respondent wrote to the Labour officer contesting the validity of an unsigned, unstamped and undated award which she forwarded to the Industrial Court as part of the record of proceedings in Labour Dispute Appeal No 39 of 2019. It is not in dispute that the labour officer in her letter dated 21/10/2020 in response to Counsel for the Respondent, strongly refuted having authored the contested unsigned, unstamped and undated award. The Labour officer went further to point out the discrepancies in the contested award and forwarded a certified copy ofthe correct award she said she delivered on 4/10/2019. It is also not in dispute that on 4/11/2020, Counsel for the Applicant wrote to the Registrar ofthis Court seeking her intervention in this matter and particularly refuting allegations that the

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Applicant had forged the contested unsigned, unsealed and undated award which formed part ofthe record ofAppeal in LDA No. 39/2019.

In its finding this Court established that, the Appeal was based on an unauthentic award of the Labour office, and it emphasised that, for a Judgement to be considered authentic and binding it must be signed by the Judge or quasi-Judicial officer who delivered or pronounced it as provided under Order ²¹ rule 3 ofthe Civil procedure rules SI 71-1.

It is a fact that the labour officer's award that, was part *of*the record ofAppeal in LDA No 39 of 2019 was unsigned, unsealed and undated. It is a fact that the Labour officer denied ever issuing the said was unsigned, unsealed and undated award. In fact, she later forwarded what she considered to be the correct award which she to delivered on 4/10/2019. Counsel for the Applicant was alive to this fact when she submitted that, if court was inclined to maintain its position that the Labour Officer's unsigned, unsealed and undated award was unauthentic, it should order that, Labour Claim No. 353 of 2018 is tried again before an independent Labour Officer, **because an unsigned and unauthentic ruling on the record cannot be authenticated by the same Labour** Officer...(emphasis ours) who vehemently denied authoring it, yet she is the very person who forwarded it to this Court.

Therefore, even if it were the position that this court arrived at its decision without considering the Appellants submission in response to the preliminary objection regarding the authenticity of the contested award by the Labour officer, the fact remains that, having been unsigned, unstamped and undated, the award was unauthentic and as stated by both Counsel the purported correct version which she forwarded later could not authenticate it.

Having said this, Section 94 (1) and (3) ofthe Employment Act provide that,

*) party who is dissatisfied with the decision of^a labour officer on a complaint under thisAct may appeal to Industrial Court in accordancewith thissection.*

**]**

*3) The Industrial Court shall have power to confirm, modify or overturn any decisionfrom which an appeal is taken and the decision ofthe Industrial Courtshall be final...."*

The Court stated that. *"... According to Regulation 45(2) of the Employment Regulations 2011,*

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*"Upon receipt ofnotice ofappeal with the registrar withinfourteen days, the labour officer shallfurnish the industrial Court with information concerning the complaint, the parties involved, the hearing proceedings, the decision of the labour officer and the matter ofappeal."*

*Sub regulation* 3 *ofthe same regulation makes it ^a requirementforthe labour officer to present this information to the Industrial Court within ²¹ days. Therefore, the record ofappeal is prepared andforwarded to the Industrial Court by the Labour officer who adjudicated the matter and handed down the award/Decision and not either ofthe parties to the claim. It is not in dispute that by letter dated 15/01/2020, the labour officer Ms. Irene Nabbumba, forwarded ^a copy of the Record of proceedings and relevant documents relating to the matter on which this appeal is based, to the Registrar ofthis Court. Although the Decision she attached on the record bears her name, "Irene Nabbumba", it is unsigned, undated and does not bear the stamp ofthe Labour office. The Judgement is therefore not authentic..."*

Therefore, having as discussed above it is the responsibility ofthe Labour Officer to prepare and submit the record of proceedings to the labour officer and not Counsel. In the circumstances this court was correct to set aside the Appela which was based on an unauthentic award.

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However in given ofthe provisions ofsection 94(3), the Appellant/ Applicant had no other recourse to Justice because the Industrial court is the final court in an appeal arising out ofthe Labour Officers decision.

Therefore, even ifthere was no error apparent on the record to warrant a review, of the the Appeal based on an unauthentic award which was denied by the same Labour officer who submitted it to the Industrial Court as part ofthe record of proceedings in LDA no. 39 of 2019, and even if it is not strictly ground for review as provided under section 82 of the CPA, it was an omission on the part of the Court not to provide an alternative remedy to the innocent Appellant/Applicant after setting aside the Appeal, given that this Court is the final court ofAppeal.

Therefore, in the interest ofsubstantive Justice as provide and in accordance with Article 126(2)(e) and for completeness, the authenticity of the Labour Officer's award having been rightly questioned and cause the Appeal on which was based to be rightly set aside, It is our considered opinion, that, Labour Complaint No. 353 of 2018, should be referred to an independent labour officer for adjudication.

In the circumstances the ruling to set aside the Appeal in LDA No. 39 of 2019 is reviewed to include a reference of the Labour complaint No. 353 of 2018 to an independent Labour officer for proper adjudication. No order as to costs is made.

*I*

delivered and signed by:

**\*1**

**1**

**i. THE HON. JUDGE, LINDA LILLIAN TUMUSIIME MUGISHA PANELISTS**

**i. MS. HARRIET NGANZI MUGAMBWA 2. MR. FXMUBUUKE 3. MR. FIDEL EBYAU DATE 4/03/2022**