Kayondo v The Co-operative Bank Limited (Civil Suit 890 of 1989) [1990] UGHC 44 (27 March 1990)

Full Case Text

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IN THE HIGH COURT CT UGANDA AT RAIIPALA.-

CIVIL 1UTT &gt;'C. 899 OF 198%

DAVID B.,KAYONDO:::: ::::PLAINTIFF V 'T A 5 U S

THE CO-OPERATIVE T\NK LIMITED: :: ::::DEFENDANT.

Before: The lionourah' le Nr. Justic e G.;\- Qkel1c . •

## J U D C M E N T.

In this action, the plaintiff seeks several reliefs against the defendant for -,.n alleged breach of a contract of employment• Among the reliefs sought are (a) a declaration that the plaintiff's contract of service with the defendant is still subsisting., (b) an order that all dues under the contract withheld since 16/10/89 be paid to tho plaintiff (c) Damages (d) inter 1st on (c) and (d) of the suit. above and (e) cost

The plaintiff vd. .'served with the dwfe.idant ' ink in various positions from 11/3/75 culminating in his appointment as Secretary of. the Bank by a letter •.ted 1/2/38 (exh. P.1). The appointment v/as back-dated to 1/9/87 and according to the\* letter of appointment the appointment Pules and Regulations and other administrative instructions made from time to time. was governed by the Bank's Standing Orders,

By a letter dated 16/10/8\$? (exh. P.3) the Chairman of the Board of Directors, of the Defend..nt terminated trie plaintiff's services with the lUnk and offore i • cash payment in lieu of Notice plus other terminal benefits due to him under the regulations hitherto governing his employment. -'his was done in the- management' of the' Bank., an exercise t-o reorganise

calling'" it ill /al in i icl *— - '* The •plaiift\ff''tTA'oug?r'His lawyer's Tetter dated 20/10/39 (exh.-. ■\*' PT7?) chaTTShgei the termination of niffs' services by the defendant the' contract of e. i p1oyment.

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He finally ubmitted that in the instant case, the dispute between the plaintiff as a past officer of the defendant cooperative societies Bank is a dispute which touches the business of the society and therefore that it falls within Section 73 of the Cooperative Society Act 30/70. That since the evidence of PI1 and that of PH2 show that this dispute was not reformed to the Registrar of Cooperative Societies, that failure amounted to a violation of the mandatory provision of Section 73 of the Cooperative Societies Act 30/70.

On his part, Mr. Muler a contended for the plaintiff that Section 73 of the Cooperative Societies Act 30/70 does not outst the jurisdiction of the court in those matters haved therein. He contended that the section merely created an alternative method of settling dispute of the rature named therein. He argued that for a Statute to outst the jurisdiction of the court, it must be explicit and be submitted that section 73 of this Act is not so explicit. $\rightarrow$ support his contention counsel cite the case of Y. Ntunguerisho &114 others vs Mrs Cherity Kakuhikira MCCS 604/80 unreported and Scott v. Averu 2 others (1860) ALL MR Reprint I.

As regards the cases cited by Dr. Byruau isha, Mr. Mulenga dismissed Wakiro's case as unhelpful in this case because in that case the dispute was referred to the arbitrator and that the definition given by the jud ,3 in that case $as$ . bo what is "a dispute touching the business of the Society was obiter and that it was not meant to he exhausitve. Command lowever agreed with the approach adopted in Rv The Containstoner for Coop. Develop. Spente Kabuthi above and in Gatanga Coffee Browers Coop Society Ltd v. Gitau above that the interpretation of the words "disputes touching the business of a Society" must be restrictive. He submitted that the dispute between the plaintiff and the defendant in this case is not a dispute touching the business of the Societies Act 30/70.

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legislator^\* appear to :ne clearly intended that any dispute touching the business of *c.* registered society in (a) (b) (c) and (d) above That left no room for the dispute in (a) (b) (c) and (d) touching the business of a registered society to be taken elsewhere than to the Registrar for decision. must be referred to che Registrar for decision. By tho use of th? word nshallu in the above section, the

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The •jurisdiction the- court'-in those .natters iacc.].early' \_,aand equivocally ousted.'

In V/akirq and Anor v. Cqrnittee of Bugisu Cooperative Union LTD above, Section 68 of the cooperative society Act Cap. 95 Laws of Uganda was considered. less similar to this one before me. It was between past officers of the registered society and the .society over whether the dismissal of the officers by tho society was right. That Section is identical Cap. 95. was had this to say. In that case the dispute was more or of the court was not .specifically raised but Russell J. as he then The issue whether or not that section ousts the jurisdiction with Sect:. 73 of the Cooperative Societies Act 7 J/70 which repealed

''It appears however t'o he generally accepted that even though the words must bo strictly construed \* as Section 68 of the Act oust &gt; the jurisdiction of the court ~-TZ' --- "-- —n (underfilling is mine) .

The above passage shows that it was quite clear that section 68 of the cooperative societies Act cap. 95 of Laws of Uganda ousted the jurisdiction of the court in natters named therein. The wording of that section is identical with the wording of Section 73 of the Act 30/70 and it is ray view that tills Section 75 of Act 30/70 is clear enough in its intent to oust the jurisdiction of the court over the matter na;»ed therein.

Turning to the question Wither the dispute between the plraintiff and e defendant in this case is a dispute -'ouching the business of the society within the meaning rf Section 73 of the

In the instant case, the ambient, suspension or dismissal of the General Manager, Deputy General Manager or Secretary and the fixing of terms of employment of all the staffs of the society is covered under clause 37 (i) of the By-law of the Bank (exh. P.9) In my view any dispute between an officer or past officer of the society with the Society regarding the appointment, suspension or dismissal of General Manager, or Deputy General Manager or Secretary or even dispute regarding the fixing of terms of employment of all staffs of the society would be a dispute properly touching the business of the society within section 73 of the cooperative societies Act $30/70$ .

The dispute between the plaintiff as a past officer of the registered society with the society is over the termination of the plaintiff's services with the defendant. This falls within clause 37 (i) of the seciety's by-law. It is therefore a dispute touching t $\ast$ business of the Society within the m ning of section 73 of the Cooperative Societies Act 30/70. To that extent, the court has no jurisdiction over the matter except under section 75 (1) of the Act. The dispute should first have gone to arbitration in accordance with section 75 of the Cooperative Societies Act.

Having found that the answer to issue No. 1 above is in the affirmative meaning that this court has no jurisdiction in the matter except on appeal under section 75(4) of the Act, I consider that no useful purpose will be served by my considering the remaining issues. It will only be an exercise in vaste of time of the court. In those circumstances, the case having been filed in court when it should first have gone to the Registrar of cooperative societies for decision it is dismissed with costs to the defendant.

> G. M. Okello, $\frac{Judgo}{27/379}$

Judgment delivered in the presence of $(1)$ Plaintiff. Mr. Nkuruziza for plaintiff $(2)$ $(3)$ Dr. Byamugisha for defendant.

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