[2022] UGIC 76

# **THE REPUBLIC** OF UGANDA **IN THE INDUSTRIAL COURT OF** UGANDA **AT KAMPALA MISC. APPL. NO. 168/2021 ARISING FROM** LDA/36/2019

# **BETWEEN**

## **UGANDA TELECOM LIMITED APPLICANT**

# **10 VERSUS**

**ABKHZAM ALI SALIM HAMDY RESPONDENT**

**Before**

**5**

**15** 1. The Hon. Head Judge, Ruhinda Asaph Ntengye

# **Panelists**

- 1. Ms. Adrine Namara - 2. Mr. Micheal Matovu - **20** 3. Ms. Suzan Nabirye

# **RULING**

#### **Brief Facts**

**30**

**I i**

**ll**

**25** This is an application by Chamber sermons under **Section** 33 of **the Judicature Act; Section 98 of the Civil** Procedure **Act,** Order 43 rule 4(1), **4(3)**(2), **Order 55 rules ¹ & 3 of the Civil Procedure Rues and Rule 24 of** the **Labour Disputes (Arbitration & Settlement) (Industrial Court procedure)** Rules 2012.

The application seeks for stay of execution of the decree of this court in Labour Dispute Appeal No. 36/2019.

The application is supported by affidavit sworn by one Prossy Kembabazi, the Ag. Company Secretary of the applicant. An affidavit in reply sworn by the applicant is also on the record.

#### **Representation**

**35** The applicant was represented by Mr. Wadembere Nuhu of the Legal Department of the Respondent while the respondent was represented by Mr. Mukuve Muggaga of M/s. Mukuve & Co. Advocates.

# Submissions

**45**

**I**

**40** Counsel for the claimant submitted strongly that the applicant having filed ^a notice of Appeal, failure to grant the application will make the Appeal nugatory and the sums involved are very high which the applicant may not recover once the appeal is allowed. According to counsel this averment was not contradicted by the applicant and therefore it is admitted.

Counsel argued that Order 43 rr4 CPR was not mandatory as to security for costs and that the provision was not to fetter the right of appeal.

In reply counsel for the respondent argued strongly that the application was defective and barred by law on the ground that it was served outside the 21 days from the date of endorsement contrary to order 1(2) CPR.

**50** Counsel also argued that the application was based on an intended appeal yet the applicant had no right of appeal as per **Section 94(3) of the Employment Act.** Counsel contended that even if such ^a right existed, **Rule 84(a) of the Court of Appeal Rules** extinguished the right by providing that an appeal not lodged in time renders the appeal withdrawn.

**55** According to counsel, ^a memorandum of appeal ought to have been lodged within 60 days of the notice of appeal or from the date of availability of the record proceedings.

Counsel prayed for the court to dismiss the application and submitted in the alternative that allowing the application without security for costs would be ^a mockery of justice.

**60** In ^a short rejoinder, counsel for the applicant argued that on 10/1/2022 this court extended time within which to serve and so the point of law had no merits.

Counsel argued that ^a notice of Appeal was an expression of intention to appeal and was sufficient for grant of stay of execution.

**2**

Counsel argued that the applicant had ^a right of appeal when **Section 94(3)** is read together with **Rule 24(3) of the Labour Disputes (arbitration and Settlement) (Industrial Court Procedure) Rules.**

According to counsel rule 24 is silent on whether the decision of this court arising from an appeal from a Labour Officer is appealable.

# **Decision of court**

**65**

**85**

**90**

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**70** On perusal of the record of 10/01/2022, this court granted counsel for the applicant up to 13/1/2022 to serve the respondent. We therefore agree with the applicant that the P. O. relating to timely service of this application had no merit.

There is no doubt an application for stay of execution is granted on satisfaction of the court that there are certain matters that are pending before the court that directly affect the substance of execution. For example, once the decree is ^a subject of appeal to ^a higher court, although an appeal is not by itself reason for stay of execution, the court may consider the circumstances and grant the application.

**80** Circumstances such as: the likelihood of success of the appeal, the fact that the decree holder may not be able to atone the damage or inconvenience once the appeal is successful; the fact that the decree was wrongly extracted; and the eminence of execution are some of the factors that may lead to allowing the application.

On perusal of the affidavit in support of the application and having listened to the submissions of the applicant, the instant application is based on the fact that there is ^a pending appeal which according to counsel raises pertinent questions of law with ^a high chance of success and yet the applicant has no known assets or financial ability to atone the damage likely to occur by execution of the Award.

The salient issue in this application is whether in the first place the applicant has ^a right to appeal.

**Section 94** of the **Employment Act** provides for appeals from the labour officer to this Court and this application arises from a decision taken by this Court on appeal from ^a labour officer.

**3**

In our interpretation, the section is clear that an appeal from the labour officer lies to this court and this court is ^a final court since its decision is clearly stated to be final.

The applicant referred us to **Rule 24(3) of the labour Disputes (Arbitration & Settlement) (Industrial Court Procedure) Rules.** We have perused the whole of Rule 24 which has 5 sub-rules. Nothing in the rules provides for ^a second appeal to the court of appeal. The rule simply repeats what is provided for under Section **94** of the **Employment Act** above described, except that it does not include the fact that this court is final. Counsel for the applicant seems to suggest that since the rules do not mention the finality of this court in an appeal from the labour officer, the silence should be interpreted to mean that such right of appeal exists.

- 105 Nothing is further from the truth in this suggestion simply because **Section 94 of the Employment Act** which provides for the finality of this court, is the substantive legislation and Rule 24 relied upon by counsel for the respondent is ^a subsidiary legislation. Consequently the express provision in the substantive legislation is no doubt the law. - no Accordingly we hold that the applicant has no right of appeal in the circumstances.

This being the case, the issue as to whether the appeal will be rendered nugatory or whether the appeal has chances of success or whether the respondent will be disadvantaged because of the inability of the applicant to pay back once the appeal succeeds are all issues that need not waste this court's time.

115 Accordingly the application fails with no orders as to costs.

## **Delivered** & **signed:**

**1.** The Hon. Head Judge, Ruhinda Asaph Ntengye

## **Panelists**

- 120 1. Ms. Adrine Namara - 2. Mr. Micheal Matovu - 3. Ms. Suzan Nabirye

Dated: 18/03/2022

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