Bollore Transport and Logistics (U) Limited v Musau Waita (Labour Dispute Miscellaneous Application 146 of 2022) [2023] UGIC 86 (24 March 2023)

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### **THE REPUBLIC OF UGANDA IN THE INDUSTRIAL COURT OF UGANDA AT KAMPALA MISCELLANEOUS APPLICATION NO. 146 OF 2022 ARISING FROM LABOUR DISPUTE APPEAL NO.004 OF 2022** *(All arisingfrom Labour Dispute Complaint No. MGLSD/LC/564/2020)*

# **BOLLORE TRANSPORT & LOGISTICS (UGANDA) LTD APPLICANT**

# **VERSUS**

**MUSAU WAITA RESPONDENT**

# **BEFORE:**

THE HON. JUSTICE ANTHONY WABWIRE MUSANA

# **PANELISTS:**

- MS. ADRINE NAMARA, **1.** - MS. SUSAN NABIRYE & 2. - MR. MICHAEL MATOVU. 3.

### **RULING**

#### **Introduction**

- **[1]** This ruling concerns an application seeking a declaration, inter alia, that Labour Dispute Appeal No. 004 of2022 was brought on grounds offact and mixed law and fact, without leave ofCourt, The application was brought under **Section 94 ofthe Employment Act, 2006** *(from now EA),* Section 98 ofthe Civil Procedure Act Cap 71 *(from now CPA),* Order 51 r.l and 2 ofthe Civil Procedure Rules S. I *21-{(from now CPR)* and Rules 23 and 24 of the Labour Disputes (Arbitration and Settlement) (Industrial Court) Rules, 2012 *(from now LADASA Rules').* - **[2]** Mr. Gerald Batanda, Advocate, filed an affidavit in support. The gist of this affidavit is that he was privy to the proceedings before the labour officer and that

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the grounds of appeal were based on fact or mixed law and fact and were raised without leave ofCourt.

- 13] The Respondent opposed the application and maintained that the grounds of appeal were matters of, or raised valid points of law. He asked that the Court dismisses the application and hears the appeal on merit. - **[4]** From the pleadings and submissions ofthe parties, the issue for determination, as framed by M/s. Signum Advocates, appearing for the applicant, would be; - *Whether Labour Dispute AppealNo. 004 of2022 raises matters offact or mixed law andfact?*

### **Submissions of Counsel for the Applicant.**

- **[5]** It was submitted that under Section 94 (2) EA, an appeal lies on a question of law, and with leave ofthe Industrial Court, on a question offact forming part of the decision of the labour officer and that these provisions were couched in mandatory terms.1 As to the distinction between a matter oflaw vis a vis a matter offact, Counsel proposed that a matter of law is a question ofthe proper law to apply to facts ofthe case, to be determined by the Judge while a matter offact is defined as one involving ajudicial inquiry into the truth ofthe alleged facts.2 To buttress the argument, Counsel referred to the Industrial Court's holding that matters oflaw are those that determine the course ofjustice in the courts oflaw while matters of fact allow for investigation of evidence and for drawing of proper inferences from such evidence at the hearing ofthe appeal.3 - **[6]** It was suggested that the Respondent had not raised any issues that required the interpretation ofthe law but only that the labour officer misinterpreted a point of law and thus led to a wrong course ofjustice. It was posited that a determination reached through an analysis offacts and an evaluation of evidence ceases to be matter of law and becomes one of fact. Further, that under section 94 EA and rule 24(2) ofthe LADASA Rules, an appeal is restricted to matters oflaw.4 - **[7]** We were invited to find that the failure to seek leave of Court was an illegality which was not curable under Article 126(2)(e) ofthe Constitution.5

&#x27; Bureau Veritas Uganda Limited vs. Davlin Kamugisha. LDMA No. 54 & 64 of 2017

2 Counsel relied on The Essential Law Dictionary and Black's Law Dictionary 8th Edition

3 Kampala Playhouse Ltd & 20 Ors vs Oligo James & 18 Ors LDMA No. 18 of 2021

4 Karahukayo & 4 Ors v Continental Tobacco(U) Ltd LDA No. 15 of2015

5 Counsel cited Kasirye Byaruhanga & Co Advocates vs UDB S. C. C. A No. 2 of 1997 and Utex Industries v A. G for the proposition Article 126(2Xe) is not a magic wand in the hands ofdefaulting litigants.

- $[8]$ It was also submitted for the Applicant that the principles of admission and estoppel as cited by the Respondent were misplaced. That there was no clear and unambiguous statement of admission.6 - $[9]$ The applicant denied that the application was frivolous or vexatious.7

#### **Submissions of the Respondent**

- $[10]$ M/s. Rwabogo & Co. Advocates, appearing for the Respondent, submitted that the appeal against the decision of the labour officer rested solely on matters of law. Grounds 1, 2 and 3 of the Memorandum of Appeal highlight contractual principles of law in relation to variation.8 Counsel submitted that Sections 59(4) and 60 (a) of the EA require written notice of an agreed change to a contract. The change being that compensation of currency fluctuation was reduced into writing and as such there was a question of law to determine. - $[11]$ In relation to grounds 4 and 5, it was submitted that ground 4 raised the issue of waiver9 and the confidentiality clause in the compensation agreement. In relation to ground 5. Counsel advanced the view that the labour officer ignored the market rates for repatriation of the Respondent, his family members and property to Mombasa, Kenya. - The Respondent also argued that there was a ground for evaluation of evidence.10 $[12]$ - Finally, as to final computation of terminal benefits, it was submitted that the $[13]$ Respondent played no part in the negotiation or computations of the sum paid to him. We were asked that the remaining balance is computed by the Applicant. We were invited to find that the Memorandum of Appeal was appropriate.

#### Analysis and decision of the Court.

It is trite that appeal is a creature of statute. Under section $94(2)$ EA, an appeal $[14]$ shall lie on a question of law, and with leave of the Industrial Court, on a question of fact forming part of the decision of the labour officer the provision is reproduced in Rule 24 of the LADASA Rules. These provisions are unambiguous. An appeal on a question of law lies as of right while on questions of fact or mixed law and fact, lie with leave of the Industrial Court. In the case of Bureau Veritas Uganda Limited vs. Davlin Kamugisha,11 cited by the Applicant, the Industrial Court, citing the English case of Geogas SA vs. Tranno

7 Counsel referred to the case of Nabyonzi Rachel v Namiiro Suzan & Anor H. C. MA No. 883 of 2020

&lt;sup>6 Nelson Kawalya v Sebankita Hamis H. C. M A No 1534 of 2020

&lt;sup>8 Mujuni Ruhemba v Skanka Jensen(U) Ltd C. A No.56 of 200 in support of the proposition that an oral variation of a written contract leaves the written contract intact and enforceable.

&lt;sup>9 Black's Law dictionary 8th Edn Page 1611 for a definition of waiver.

&lt;sup>10 Onyango Robert v Security Group(U)LDA No. 040 of 2020

&lt;sup>11 (Opcit) Per Asaph Ruhinda Ntengye H. J, Linda Lillian Tumusime Mugisha J, Panelists Hon. F Ebyau, Hon. F. X Mubuuke and Hon. H. N Mugambwa

Gas Limited(the Baleares) 1993 1 Lloyds Rep 215 at 228, emphasized the rationale of the provisions of Section 94(2) $EA^{12}$ . The Court posited:

"We believe that the framers of Section $(92)(2)$ (see footnote twelve below) of the Employment Act, 2006 were aware of the importance of preserving the autonomy of the Labour Officer as an arbitrator, hence the mandatory provision that a party seeking to appeal based on fact must first seek leave of court to do so. We believe the legislature intended that the facts would be evaluated by the lower Courts and the Appellate Court would be left to evaluate points of Law."

The import of the provisions is that an appeal on questions of fact or mixed law and fact without leave of this Court, is incompetent.

- We think it is important to delineate a question or point of law as against a $[15]$ question of fact or mixed law and fact. The applicant suggested that a matter of law is a question of the proper law to apply to facts of the case, to be determined by the judge while a matter of fact is defined as one involving a judicial inquiry into the truth of the alleged facts. We agree with this restatement of the law. However, in a range of decisions, the Appellate Division of the East African Court of Justice (EACJ) expounds the definition on the point of law while considering the propriety of appeals brought before that Court. In the case of Attorney General of Burundi and the Secretary General EAC and Hon. **Fred Mukasa Mbidde**13 an error on a point of law occurs when a trial Court (i) misapprehends or misapplies a pertinent law or principle of law, (ii) misapprehends the nature, quality, and substance of the evidence or (iii) draws wrong inferences from the proven facts. What can be discerned from the above decision, therefore, is that issues or points of law relate to the interpretation and application of the law to the facts while a question of fact relates to the findings as a result of the evaluation of evidence. - In the case before us, Labour Dispute Appeal No. 004 of 2022, arises from $[16]$ Labour Complaint No. MGLSD/LC/564/2020 at the Office of the Commissioner Labour Industrial Relations and Productivity. On a complaint that he was terminated on 31st July 2020 due to redundancy and staff restructuring, the Respondent sought compensation for loss due to currency fluctuation for the period 2015 to 2020, NSSF benefits, transport and repatriation. The Labour Officer determined that the Respondent was not entitled to compensation for fluctuation, NSSF benefits or annual transport. In respect of repatriation, the Labour Officer found the claim for US\$ 2000 and UGX 4,374,000 to be high and

&lt;sup>12 The Industrial Court must have been making reference to Section 94(2) of the Employment Act, 2006. Section 92(2) of the Act penalty for failure to pay severance allowance.

&lt;sup>13 Appeal No. 02 of 2019. See also Simon Peter Ochieng & Anor v Attorney General of Uganda Appeal No. 4 of 2015 (2015-2017] EACJR 509

awarded US\$1500 and UGX 1,435,000 respectively. Aggrieved by this decision, the Respondent lodged a Notice of Appeal on 21st February 2022. This was followed by a Memorandum ofAppeal filed on the 2nd ofMarch 2022.

- [17] The Memorandum ofAppeal listed 5 grounds of appeal. In the application now before us, we must determine whether the grounds ofappeal are questions oflaw to be addressed by the Industrial Court, or matters offact or mixed law and fact for which leave ought to have been sought before the filing ofLDA No. 004 of 2022. To answer this question, it is imperative to employ the full text of the grounds. The grounds read as follows: - (i) That the Labour Officer erred in law, when she misdirected her mind and came to the erroneous conclusion that the written contract of employment between the Appellant and the Respondent was orally varied. - (ii) That the Labour Officer erred in law, when she misdirected her mind and came to erroneous conclusion that, the written contract of employment between the Appellant and Respondent could orally be varied by virtue Section 67 ofthe Contract Act 2010 - (iii) That the Labour Officer erred in law, when she failed to evaluate the evidence ofthe Respondent and thus coming to a wrong conclusion that by contract renewal letter dated 13th February 2015, it contained clear evidence that, the parties had a series ofdiscussion that varied the contract - (iv) That the Labour Officer erred in law, when she misdirected her mind and thus coming to erroneous conclusion that the Appellant had waived his right to demand for compensation resulting from currency fluctuation loss as he never demanded for the same for close to 5 years - (v) That the labour officer erred in law, when she misdirected her mind and thus coming to erroneous conclusion that, the respondent had offered reasonable and sufficient repatriation payments ofpersonal effect ignoring the market rates that had been provided by the Appellant. - [18] In our view, grounds 1, 2 and 3 of the Memorandum of Appeal relate to the Labour Officer's finding that a written contract was varied, orally. The question invites application, consideration, interpretation or interrogation of the provisions of Section 67 of the Contract Act 2010. The section provides that where any right, duty, or liability would rise under agreement or contract, it may be varied by the express agreement or by the course of dealing between the parties or by usage or custom ifthe usage or custom would bind both parties to the contract. The grounds (1-3) as framed are in our view, pointed to a matter of law or relate to a question of and application ofthe law. It was not a decision of a labour officer arrived at after an evaluation of the evidence presented by the

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parties. We would hold that grounds 1,2 and 3 relate to a point oflaw from which an appeal lies.

- **[19]** In our view, grounds 4 and 5 relate to findings of fact by the Labour Officer. They are based on analysis and evaluation of evidence and are therefore mixed law and fact for which leave would be required. Ground 4 is specifically on the Labour Officer's finding on the Respondent not making a demand for compensation for fluctuation of currency. It is not a point oflaw but a finding on fact. Similarly, in arriving at the conclusion on Ground 5, the Labour Officer considered the market rate as presented by the Respondent versus what the Labour Officer considered reasonable. It was a clash of facts. The Respondent proposed USS 2800 for transport for household items and UGX 4,374,000 for transport for his family members. The Labour Officer found these to be unreasonable and awarded USS 1500 and UGX 1,435,000 respectively. In both these instances and borrowing from the test enunciated by the EACJ, Labour Officer is not faulted for (i) misapprehending or misapplying a pertinent law of the principle of law, (ii) misapprehending the nature, quality, and substance of the evidence or (iii) drawing wrong inferences from the proven facts. The Labour Officer's findings, were conclusions of fact. In the case of **Karahukayo & 4 Others vs. Continental Tobacco (U) Ltd14,** in considering an appeal, this Court did not accept grounds of appeal that purport to be ofboth fact and law. It would follow that Grounds 4 and 5 ofthe Memorandum of Appeal were filed without leave and are incompetent.15 Accordingly, we would strike out grounds 4 and 5 ofthe appeal. - **[20]** Before taking leave ofthis matter, we note that it would be important for parties seeking appellate relief before the Industrial Court to observe the rules relating to drafting grounds of appeal. The rules require a more measured approach to drafting grounds of appeal. In **Attorney General v Florence Baliraine16** the Hon. Kenneth Kakuru. JJA (as he then was) was at a loss to ascertain a trial Judge's error in law or fact. His Lordship observed that grounds of appeal must concisely specify the points which are alleged to have been wrongly decided and struck out two general grounds for offending Rule 86(1) ofthe Court of Appeal Rules. This viewpoint was reechoed in some detail in the case of**Nyero Jema v Olweny Jacob & 4 Others17** where Mubiru J found the two grounds of appeal to be too general and offending the provisions of Order 43 r (1) and (2) CPR, which require a Memorandum ofAppeal to set forth concisely the grounds ofthe objection to the decision appealed against. Every memorandum of appeal is required to set forth, concisely and under distinct heads, the grounds ofobjection

16 C. A. C. A No. 79 of2033

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14 Labour Dispute Appeal No. 15 of2015

15 Dr. Sheikh Ahmed Kisuule v Greenland Bank(in liquidation) SCCA No 11 of2010

17 High Court Civil Appeal No. 0050 of2018

to the decree appealed from without any argument or narrative, and the grounds should be numbered consecutively. Properly framed grounds of appeal should specifically point out errors observed in the course of the trial, including the decision which the appellant believes occasioned a miscarriage ofjustice. We are of a similar persuasion that parties seeking appellate relief before this Court would be well advised to be more pointed in drafting their grounds of appeal against decisions oflabour officers.

# **Orders ofthe Court**

- **(i) It** is declared that grounds 4 and 5 of Labour Dispute Appeal No. 004 of 2022 are grounds ofmixed law and fact filed without leave ofthis court. Accordingly, they are struck out. - **(ii)** Labour Dispute Appeal No. 004 of 2022 shall be limited to grounds 1,2 and 3 as listed in the Memorandum of Appeal. To aid in expeditious disposal, the appeal shall be called immediately after this ruling for directions. - (iii) As the application succeeds, only partially, there shall be no order as to costs. » **day ofMarch 2023** |

**Dated at Kampala this**

# **SIGNED BY: ANTHONY WABWIRE MUSANA, Judge**

# **THE PANELISTS AGREE:**

- **1. MS. ADRINE NAMARA** - **2. MS. SUZAN NABIRYE** I - **3. MR. MICHAEL MATO**VU

Ruling delivered in open Court in the presence of:

- **1**. Ms. TeopistaWakabahenda for Respondent. - 2. The Respondent is in Court.

Court Clerk: **Ms. Matilda Nakibinge.**

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