Ampeire v Attorney General (Miscellaneous Application 34 of 2023) [2023] UGIC 46 (25 October 2023)

Full Case Text

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# THE REPUBLIC OF UGANDA IN THE INDUSTRIAL COURT OF UGANDA AT KAMPALA **MISCELLANEOUS APPLICATION NO.34 OF 2023**

(Arising from Labour Dispute No. 257 of 2021 and Labour Claim No. KCCA/RUB/LC/076/2019)

AMPEIRE ALLAN:::::::::::::::::::::::::::::::::: ::APPLICANT

## **VERSUS**

**ATTORNEY GENERAL :::::::::::::::::** RESPONDENT

#### **Before:**

The Hon. Mr. Justice Anthony Wabwire Musana.

## **Panelists:**

- 1. Hon. Adrine Namara, - 2. Hon. Suzan Nabirye & - 3. Hon. Michael Matovu.

## **Representation:**

- 1. M/s Elgon Advocates for the Claimant. - 2. Mr. Peter Masaba, State Attorney, for the Respondent.

## **RULING**

- This ruling concerns an application for an extension of time to file and validate a $[1]$ claim filed in Court. The Applicant also seeks provision for costs. It was brought under Section 98 of the Civil Procedure Act Cap. 71 (from now CPA), Order 51 Rule 6, and Order 52 of the Civil Procedure Rules S. I 71-1(from now CPR). - In his supporting affidavit, the Applicant avers that he was terminated on $[2]$ medical grounds on 20th December 2002 and started chasing for his benefits between 2002 and 2019. In 2003, the Public Service Commission (from now *PSC*) advised him to get a medical report from the Uganda Police Force. He was kept moving in circles and decided to seek legal redress in 2019. Because he was unfairly and illegally terminated from work, unjustly treated, and denied

his terminal benefits, an extension of time and validation of the claim filed was justified.

- **[3]** The application was not unopposed. In an affidavit in reply, Elizabeth Namakula, a Senior State Attorney with the Respondent's Chambers, averred that the contents of the Applicant's affidavit were false. There was no evidence to support the allegation that the PSC tossed the Applicant for ten years. There was nothing to stop the Applicant from getting a report from a government hospital. Reports and recommendations of the Police Council bound the PSC. There was no proof of a demand for a medical report from the Police Force. The Applicant had sat on his rights, and there was no justifiable reasorivfor the inordinate delay in enforcing his rights. - [4] On the 23rd of August 2023, we invited the parties to file written submissions.

#### Submissions of the Applicant on the merits of the application.

[5] It was submitted for the Applicant that he was dutifully carrying out his duties when he was served with a letter of termination of his services on medical grounds in December 2002. He had not been sick or subjected to any medical examination. He started chasing his benefits from PSC, and in 2006, his file was sent to the Uganda Police Force (UPF);with a request for the medical report on which the Applicant was dismissed. On the authority of Makula International (U) Ltd v Emmanuel Cardinal Nsubuga & Another (1984) HCB 11 and Belvoir Finance Co. Ltd v Harold G ;(1969) 2 All ER 904, it was submitted that the Applicant was illegally "dismissed, and this Court ought not to sanction an illegality.

#### Submissions of the Respondent

[6] It was submitted for the Respondent that Labour Claim No. 252 of 2021 is timebarred and that the Application was devoid of merit because there was no TeasopFwarranting enlargement of time. Under Section 71(2) of the ^Employment Act *2006(from now EA),* a complaint to a Labour Officer must be s^nade within three months of the dismissal. The Applicant was terminated from service on the 31st of December 2002 and only woke up to file a complaint before the Labour Officer in 2019 and a memorandum of claim at the Industrial Court on 18th November 2021, eighteen years, and ten months after termination. The Learned State Attorney relied on F. X Miramago v AG (1979) HCB 24, where it was held that the limitation period begins to run as against the plaintiff from the time the cause of action accrued until the suit is filed. Qt was submitted that Section 3(l)(a) and (d) of the Limitation Act Cap. 80 limited

actions founded on contract and tort or to recover any sum by virtue of any enactment to six years from the date on which the cause action arose.

- **[7]** The Learned State Attorney also submitted that while Section 14(3) of Judicature Act Cap.4 permitted the application of doctrines of equity, equity aided the vigilant. The Respondent would be unduly prejudiced if the time is extended. It was submitted that the Applicant had not demonstrated sufficient cause for extension. We were referred to **Rosette Kizito v Administrator General & Others S. C. C. A No. 9 of 1996 and Bishop Jacinto Kibuuka v The Uganda Catholic Lawyers Society & Anor H. C. M. A 696 of 2018, Hadondi Daniel v Yolam Egondi C. A. C. A No. 67 of 2003 and Onchwati v Kenya Oil Co. Ltd & Another [2017] eKLR** for the definition of sufficient cause. - [8] Finally, we were referred to the cases of **Gashirabake Christopher v Samantha Mwesigye L. D. M. A No. 27 of 2022 and Jamada K. Luzinda v Attorney General C. A. C. A No 090 of 2012** for the proposition that statutes of limitation are strict and inflexible. It was submitted that the Applicant had not demonstrated sufficient cause and that the application should be dismissed and Labour Claim No. 252 of 2021 be struck out with costs.

#### **Analysis and Decision of the Court**

- **[9]** In our view, the question for determination in this application is whether time should be extended for the Applicant to file the claim or LDR 257 of 2021 should be validated. In-other words, what is to be determined is whetherthe Applicant's claim has been brought to the Court within the timelines permitted by law. - **[10]** The background and undisputed facts of this matter are that the Applicant's services were terminated on the 20th of December 2002. He filed his complaint with the Labour Officer on the 21st of January 2019. The matter was referred to this Court in November 2021. - **[n]?** The Industrial Court does not exercise original jurisdiction. It exercises referral and appellate jurisdiction.[1](#page-2-0) It is established that employment claims are filed first with labour officers. The Labour Officer refers matters or from whose decisions appeals are preferred. Therefore, the first question to resolve is whether the complaint filed before the labour office was in time. - **[12]** The jurisprudence on the law of limitation is well settled. Statutes of limitation, as rightly pointed out by the Learned State Attorney, are, by their very nature,

1 Section 5 of the Labour Disputes (Arbitration and Settlement) Act 2006 provides for references and Section 94 of the Employment Act, 2006

provides for appeals to the Industrial Court.

. •£'

strict and inflexible[2](#page-3-0). Mr. Masaba referred us to **Section 71(2) EA.** This section provides that a complaint to a Labour Officer shall be filed within three months. It also grants the Labour Officer the discretion to extend time within which a complaint may be brought before them. Therefore, if the Applicant's services were terminated on the 20th of December 2002, his complaint to the Labour Officer ought to have been filed by the 31st day of March 2003. He was also free to seek an extension from the Labour Officer to file his complaint after the 31st day of March 2003. F

- **[13]** Does this mean he could file his complaint before the Labour Officer on the 25th day of January 2019 as he did? We think the correct answer to this question would be no. **Section 71(2) EA** confers on the Labour Officer the discretion to extend time within which the labour complaint may be entertained. However, such an extension is not to be unlimited. The Honourable Lady Justice Linda L. Tumusiime Mugisha has, in the case of **Okeny Simon v African Skies Limited[3](#page-3-1)** held that a Labour Officer may extend the time within which to file a complaint but that a complaint is to be filed within six years as prescribed under Section 3(l)(a) of the Limitation Act Cap. 80. The Court so held because the Limitation Act restricts actions founded on contract or tort to a period of six years and on the basis that an employment relationship is based on an employment contract. - **[14]** Similarly, in **Samuel Kasozi and Another v National Drug Authority[4](#page-3-2)** on a claim filed before the Labour Officer more than ten years after dismissal, the Industrial Court ruled that a Labour Officer did not have the discretion to entertain a matter beyond the six years prescribed under Section3(l)(a) of the Limitation Act. Any labour complaint must be filed before the Labour Officer within six years of the employee's termination or dismissal or when the labour or employment breach occurred. Beyond this timeline, the action would be timebarred. %' 3 - **[15]** In this regard, we agree with Counsel for the Respondent that the Applicant's action *(LDR 257 of 2021, from which the present application arises)* is statutorily time-barred. It was brought outside the six-year limitation, so the Labour Officer improperly entertained Claim No. KCCA/RUB/LC/076/2019. It was not open to a referral to this Court after mediation failed. - **[16]** Would the action be amenable to extension of time or validation? Counsel for the Applicant argued that time should be extended because of illegality. He

3 LDR 320 of 2015

4 LDR 154 of 2019

2 See Gashirabake Christopher v Samantha Mwesigye L. D. M. A No. 27 of 2022 and Jamada K. Luzinda v Attorney General C. A. C. A No 090 of 2012

suggested the **sufficient cause or reason test[5](#page-4-0)** for abridging time because the Applicant had been illegally dismissed.

[17] Under Part III of the Limitation Act. Cap. 80, it is provided for the extension of limitation in certain instances. These include disability, acknowledgment, part payment, fraud, or mistake. Therefore, an employee seeking to abridge the limitation period must demonstrate disability, acknowledgment, part payment, fraud, or mistake. In the case of **Beiga Balbin and 2 Others v Atoo Namue and 3 Others,[6](#page-4-1)** the Honourable Mr. Justice Stephen Mubiru observes;

> "A *litigant puts himself or herself within the limitation period by showing the grounds upon which he or she could claim exemption, failure of which the suit is time-barred, the court cannot grant the remedy or relief sought and must reject the claim (see* Iga v. Makerere University [1972] EA 65). *This disability must be pleaded as required by Order 18 rule 13 of The Civil Procedure Rules ............ It is trite law that a plaint that does not plead such disability where the cause of action is barred by limitation, is bad in law.[7](#page-4-2) . <*

**[18]** Given the above decision, we do not think the Applicant's approach in contending sufficient reason or cause to have been appropriate. Extension of time is not synonymous with a plea to validate a claim filed out of time. This is so because where limitation is concerned, there are statutory exceptions as stipulated in Part III of the Limitation Act Cap. 80. These exceptions must be pleaded in the claim. Conversely, applications for extension of time would be decided against »a threshold of sufficient cause or reason by seeking to demonstrate an;inability to take a given step or attend Court. Sufficient cause is defined as.a mistake by an advocate though negligent, ignorance of procedure by an unrepresented defendant, or Illness by a party.[8](#page-4-3) The authorities cited by the Learned State Attorney point to a kindred definition on inadvertence, not %/^acting'diligently, oversight, and error. In our view, these are not statutory v exemptions from limitation. We were referred to this Court's decision in the Gashirabake case *(supra),* where this Court considered a preliminary objection regarding an action brought 13 years after the alleged cause of action arose. In that case, we observed that limitation is an absolute defence to a claim. It collapses or extinguishes a claim. The escape route is only through the statutory exemptions enacted in the Limitation Act. In the circumstances of the matter before us, the Claimant did not plead any exemption to limitation. The complaint was filed before the Labour Officer over eighteen years after the termination. It

5 See James Bwogi vs KCCA and KOLB. S. C. C. A No 09/2017 and MTN(U)LTD vs Anthony Katamba LDMA No.004/2021

6 H. C. Civ. Appeal No. 0039 of 2017

7 See also Hammaann Ltd & Anor Vs. Ssali & Anor HCMA No. 449 of 2013

8 Nicholas Roussos v Ghulam Hussein Habib Virani (Civil Appeal No. 9 of 1993) [1993] UGSC19 (24 November 1993)

is impossible to say that the Claimant has placed himself within any of the exemptions to limitation as provided in the Limitation Act. In other words, he cannot benefit from exemption.

**[19]** In the result, this application fails. Labour Dispute Reference No. 257 of 2021, from which it arises, collapses, and is dismissed. It is outside the statutory period of six years within which to file an action before a labour office. In keeping with our dicta in **Joseph Kalule v GIZ9** on costs in the Labour and Employment practice arena on the premise of a balance between the employer and employee, there shall be no order as to costs. #

1. Hon. Adrine Namara, 2. Hon. Susan Nabirye & **It is so ordered this>L\$ day 2023 The Panelists agree:**

3. Hon. Michael Matovu

Ruling delivered in open Court on 25th October 2023 at 9.43a.m. in the presence of:

1. For the Applicant, **Applicant in Court.**

2. For the Respondent, **Mr. Peter Masaba**

Court Clerk: **Mr. Samuel Mukiza.**

Anthony **Judge, Indu** wire Musana, **ial Court**

'LOR 109 of 2020