Aturo and Another (on behalf of 44 Others ) v Solar Now Uganda Limited (Labour Dispute Miscellaneous Application 16 of 2022) [2022] UGIC 49 (26 September 2022)

### THE REPUBLIC OF UGANDA

# IN THE INDUSTRIAL COURT OF UGANDA AT KAMPALA **LABOUR DISPUTE: MISCELLANOUS CAUSE No.001 OF 2022**

#### 1. AMOS ATURO

### **.....................................** 2. ERNEST GODWIN AGABA FOR AND ON BEHALF OF 44 OTHERS

#### **VERSUS**

#### **..................................... SOLAR NOW UGANDA LIMITED**

**BEFORE:** 15

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

- 1. MS. ROSE GIDONGO - 2. MS. ACIRO BEATRICE OKENY - 3. MR. JACK RWOMUSHANA REUBEN $\frac{1}{20}$

#### **RULING**

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This application is brought under Section 98 of the Civil Procedure Act, Order 1 Rules 8 AND 22 of the Civil Procedure Rules as amended, seeking orders that;

$25$ (a) The Applicants are granted leave to sue in a representative capacity in their names and on behalf of 44 other former employees of solar Now Limited (Respondent) in an intended suit for unlawful termination, severance pay general damages, interest and costs.

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$\mathbf{2}$

(b) Costs of the application be provided for. 30

# **The Applicant's case:**

The Applicant's case, as contained in the notice of motion and supporting Affidavit deponed by Amos Aturo, one of the Applicants, is that, 46 persons including the Applicants, were former employees of the Respondent Company as shown on the list of persons and their Appointment letters attached as Annexture "A & 'B" respectively. They were all terminated by the Respondent Company in a restructuring exercise and their respective termination letters are attached and marked as Annexture "C". They contend that, the Respondent Company did not pay them severance pay as provided under the Employment Act 2006 and being dissatisfied with the manner in which they were terminated, they filed a complaint with the Labour Office at Makindye vide Labour Dispute No. KCCA/MAK/LC/080/2021 and a copy is attached and marked as Annexture "D". However, the Respondent failed and or refused to attend the mediation before the Labour officer thus the labour officer failed to resolve the dispute within the statutory

8 weeks' time. The Applicants have the same actual existing interest in the intended 45 suit and are also seeking similar reliefs as shown in the intended suit. The Memorandum of Claim which is attached and marked as annexure 'F". They are seeking enforcement of payment of their severance pay, general damages for breach of contract when they were unlawfully terminated from their employment, interest and costs. Therefore, they authorised the 1st and 2nd Applicants, to refer Labour 50 dispute No. KCCA/MAK/LC/080/2021 from Makindye labour office to the Industrial court and to file a representative suit on their behalf and for their benefit

as well as shown in Annexture "G".

It is their case that it is in the interest of justice that, leave be granted to the 1st and 2nd Applicants to file a representative suit in their names for their benefit and for 55 the benefit of 44 other former employees of the respondent company.

### **REPRESENTATION**

The Applicants were represented by Emmanuel Kakenga of M/s Matovu and Matovu Advocates, Kampala.

#### **SUBMISSIONS** 60

Mr. Emmanuel Kakenga Counsel for the Applicants, made oral submissions and stated that the application restated that the exparte Application is brought under Order 1 Rule 8 of the Civil Procedure Rules as amended. According to him all the other forty-Four (44) Claimants authorized the 1st and 2<sup>nd</sup> Applicants under an agreement authorising them to represent them in the Labour Dispute against the

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Respondent. He also attached the draft Memorandum of Claim as evidence of that the intended Claimants have the same interest against the Respondent, and they have the same claims.

He prayed that, Court grants the Applicant's a representative order to enable them prosecute the Claim.

## **DECISION OF COURT**

Whether the Applicants should be granted leave to sue in a representative **Capacity?**

Order 1 rule 8 provides that; One person may sue or defend on behalf of all in same interest

A person may institute a representative suit on behalf of all plaintiffs or $(1)$ all defendants, as the case may be, who have the same actual and existing interest in the subject matter of the intended suit, for the benefit of all.

An application for a representative order shall be made by an intending $(2)$ plaintiff or defendant who intends to represent all plaintiffs or all defendants for the benefit of all as the case may be, who have the same actual and existing interest in *the subject matter of the intended suit.*

Before the court grants an order for a representative suit, the applicant $(3)$ *shall satisfy the court that—*

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all the plaintiffs or defendants, as the case may be, have an actual $(a)$ and existing interest in the subject matter of the intended suit;

all the persons represented have authorized the applicant to sue $(b)$ or defend in the suit, and the authorization shall be in writing duly signed by the represented persons; and

the application is brought with a proposed plaint or defense, as $(c)$ *the case may be, showing—*

> a list of all persons so represented; and $(i)$

that all persons so represented have the same actual and $(ii)$ existing interest in the suit.

Subject to sub rule (2), the court shall, in such case, give notice of the $(4)$ institution of the suit to all such persons either by personal service or, where, from the number of persons or any other cause, such service is not reasonably practicable, by public advertisement, as the court may in each case direct.

Any person with the same interest wishing to be made a party to a $(5)$ representative suit may apply to the court to be made a party to the suit.

For purposes of this rule, "a representative action" means a suit in $(6)$ which there are numerous persons having the same interest in one suit and where one or more of such persons, may, with the permission of the court, sue or be sued or may defend in the suit on behalf of or for the benefit of all persons interested."

$\mathsf{S}$

We established that the intended Claimants chose to adopt an identification method 105 which included putting their authorization in writing, providing a copy of their identity cards and providing their respective signatures. Order1 rule $8(2)(b)$ makes it mandatory that "... all the persons represented have authorized the applicant to sue or defend in the suit, and the authorization shall be in writing duly signed by the 110 *represented persons; "*

Whereas Counsel submitted that, all the Applicants gave their written authorization, Claimant's Jimmy Lamma-5, Andrew Ainomugisha-8, Amos Aturo-18, Bridget Maseruka- 20, Jimmy Hashsa-25, Eliab Mwesigye-27, AdrikoChristopher- 43 and Denis Odipo-44 did not provide written authorization while Emmanuel Oparo-3, Rodrick Okello-6 Rogers Arupa-10, Denis Latem Ojok-13, Esther Anyait-14, 115 Wencelecclaus Marachto-16, Amos Aturo-18, Issac Odeke-23. Hanington Nkwankunda -28, Eric Tuhishabe-32, Abel Ahinembazi-33, Roger Ashaba-39, John Baptist Ssendikadiwa -42, Andrew Bagenda- 45, Claudia Taremwa- 46 provided letters of authorization but they did not attach any identification as had been agreed. Although this could be overlooked, the intended Claimants 5, 8, 18, 20, 25, 27, 43 120 and 44 as seen above did not comply with Order1 rule $8(2)(b)$ (supra), having not provided the required written authorization to the Applicants to sue on their behalf. In fact, there is no evidence that, they are aware that this matter is being brought to this court in a representative capacity for and on their behalf. Sub rule (4) of Order 1 provides that; 125

$\mathbf{6}$

$\bigcirc)$

"Subject to sub rule (2), the court shall, in such case, give notice of the institution of the suit to all such persons either by personal service or, where, from the number of persons or any other cause, such service is not reasonably practicable, by public advertisement, as the court may in each case direct."

In the circumstances, given that, 8 out of the 46 of the intended Claimants have not 130 complied with Order1 rule 8 sub rule 2(b)(supra), the Court in accordance with sub rule 4 (supra) hereby directs the Applicants to give notice to them, about the intended institution of the suit in the Industrial Court, the nature of the suit, as well as the reliefs sought, so that they can provide their written authorization in compliance with Order 1 rule 8 (2)(b) as (Amended). No order as to courts is made. $\bigotimes$ 5

Delivered and signed by:

# THE HON. HEAD JUDGE, LINDA LILLIAN TUMUSIIME MUGI

**PANELISTS** 1. MS. ROSE GIDONGO 2. MS. ACIRO BEATRICE OKENY 3. MR. JACK RWOMUSHANA REUBEN

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DATE: 26/09/2022