Kizito v Uganda Police Force and Another (Labour Dispute Miscellaneous Application 192 of 2023) [2024] UGIC 63 (8 November 2024)

Full Case Text

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# **THE REPUBLIC OF UGANDA IN THE INDUSTRIAL COURT OF UGANDA AT KAMPALA LABOUR DISPUTE MISCELLANOUS APPLICATION NO. 192 OF 2023** *(Arising Labour Dispute Reference No. 154 Of2021)*

# **KIZITO PEREZI:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT**

#### **VERSUS**

**1. UGANDA POLICE FORCE ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENTS 2. ATTORNEY GENERAL**

#### **Before:**

The Hon. Justice Anthony Wabwire Musana

**Panelists:** Hon. Jimmy Musimbi, Hon. Emmanuel Bigirmana and Hon. Can Amos Lapenga.

### *Representation*

- *1. Mr. Oscar Boban Owakubariho of M/S OscarAssociated Advocates for the Applicant.* - *2. Mr. Peter Masaba, State Attorney for the Respondents*

#### *Case Summary*

*Civil Procedure-Amendment ofPleadings-Substitution ofJuristic Person- The Applicant, a former police officer, initially sued the Uganda Police Force (UPF) for wrongful dismissal. On an objection by the Attorney General on substituting a non-existent person with a legalperson, the court determined that the UPF, established by the Constitution and Police Act, is not a corporate body capable ofindependent legal action. The UPF cannot sue or be sued in its own name. The court rejected the amendment because it would substitute the UPF with the Attorney General, the proper party for employment-related claims against the UPF. The court also ruled that the original claim was bad and dismissed it.*

**Heard: 20th August 2024 Delivered: 8,h November 2024**

#### **RULING**

#### **Introduction**

**[1 ]** By motion under Section 98 of the Civil Procedure Act Cap.282 **(the CPA),** Section 33 of the Judicature Act Cap. 1**6(the** JA) and Order 1 rr10(2), (4) and (13), Order 6 rr19 and 31 and Order 52 rr1 and 3 of the Civil Procedure Rules S.l 71-1 **(the CPR),** the Applicant sought leave to amend his memorandum of claim, to strike out the 1st Respondent(the UPF) and

substitute it with the 2nd Respondent. The Applicant also sought costs. We note that in the hierarchy of laws, the Applicant ought to have cited the JA first.

# **Background facts**

**[2]** In his supporting affidavit dated 30th November 2023, the Applicant avers that he was employed by the UPF as a police constable at a salary scale U7 on the 1st of June 2007. He worked for twelve years. In 2019, he notified his supervisor, AIP Alwalo Teddy, of his intention to seek early retirement from the UPF. He alleged that when he presented his retirement forms at Kyambogo Police Station, Sgt Simon Peter Okikiro grabbed his application and forced him into a cell on the orders of the station's Officer in Charge, AIP Alwalo. He reported a case of assault at Jinja Road Police Station. He averred that his action of reporting a criminal case angered his superiors and caused them to remove him from the station's working schedules. He was not assigned work, and in September 2020, he was removed from the payroll. He was then ordered not to appear at the station. He then complained to the labour office at the Nakawa division and was referred to the Ministry of Gender, Labour and Social Development(the MGLSD), After that, the matter was referred to this Court.

## **The Application**

**[3]** The main thrust of this application is that the Applicant's former Advocates mistakenly sued the UPF, a wrong party, instead of the Attorney General, the 2nd Respondent. On the advice of his new lawyers, Messrs. Oscar Associated Advocates, he sought to amend his claim by particularising facts and special damages from his constructive dismissal. The other grounds of the application were that the amendment was necessary to help the Applicant prosecute his case conclusively, to achieve justice, for the court to determine all the questions in controversy and to avoid a multiplicity of proceedings. It was also averred that his application did not depart from his original claim. A copy of the amended memorandum of claim was attached to the supporting affidavit dated the 30th of November 2023.

#### **The Response**

**[4]** The application was opposed. Ms. Igune Amuron Brenda, State Attorney, deponed an affidavit saying the application had no merit, was bad in law, materially incompetent, and incurably defective. She averred that the UPF was non-existent in law and had no corporate personality. That the claim was time-barred. She also averred that whereas the UPF employed the Applicant, he was charged with neglect of duty contrary to Section 44 of the Police Act Cap. **324(the PA).** He had absconded from duty without permission and was declared a deserter on the 18th of June 2020. He was summoned several times, reported absent without leave, and deleted from the payroll. It was also averred that substituting parties cannot amend a defective suit and would condone illegality if the court permitted the amendment. Ms. Igune asked that the application be dismissed.

#### **Rejoinder**

**[5]** In rejoinder, it was averred that UPF is an existing institution established under the 1995 Constitution of the Republic of Uganda(the **Constitution)** and the PA, and it was simply a wrong party that could not be substituted in this application. If

### **The proceedings.**

**[6]** When the matter was called before us on the 20th of August 2024, we directed the filing of written submissions. We thank Counsel for their clear arguments and for the authorities cited and supplied.

## **Applicant's submissions**

- **[7]** In his written submissions, Counsel for the Claimant addressed two questions: First, should the applicant be allowed to amend his claim and substitute the Respondents? Second, are there any remedies available? - [8] On the first question, it was submitted that the UPF is established under Article 211(1) of the Constitution of the Republic of Uganda and Section 2PA. Therefore, it is an existent institution. It was submitted that under Order 1 rule 10(2) CPR, the Court may, at any stage of the proceedings, order the name of any party improperly joined struck out. The name of the person who ought to have been joined or whose presence before the court may be necessary to enable the court to effectually and completely adjudicate upon and settle all questions be added. It was suggested that this Court had broad powers under CPR and that there was no limitation restricting the power to add, remove or substitute a party to the suit. - **[9]** It was also submitted that the overriding consideration should not cause any injustice to any of the parties to a suit and should be geared at answering all the questions in controversy. Counsel relied on *Nakazi Margret v Kato James andAnor1* and *Mulowooza and Brothers Ltd v N. Shah and Co. Ltd[2](#page-2-0)* in support of the prayer for substitution of the UPF with the 2nd Respondent.

### **Respondent's submissions**

- [10] Mr. Masaba, submitting for the Respondents, argued that the UPF was a non-existent person in law and could not sue or be sued in its name. On the authority of *Abdulrahman Elamin v Dhabi Group[3](#page-2-1)* it was submitted that a suit in the names of a wrong plaintiff or defendant cannot be cured by amendment and where the amendment by way of substitution of a party purports to replace a party that has no legal existence, the plaint, must be rejected as it is no plaint at all. The Learned State Attorney also relied on *Kabagambe Grace v Mbabazi Resty & Kyenjojo Tom Council[4](#page-2-2) 5*and *Mulangira Simbwa v The Board of Trustees Miracle Centre andAnof^* for the proposition that a suit against a non-existent person is bad in law and incurable. - **[11]** The second argument was that the main dispute upon which this application was premised was time-barred. It was stated that the main application was filed 14 months after the date the cause of action arose and was, therefore, contrary to the three-month limit under Section 71(2) of the Employment Act. Cap.226. Mr. Masaba relied on *F. X Mirimago vA. G[6](#page-2-3)*

*LDR 192of2023 Ruling Antnonymbwire* **Afusana** *J*

**&#x27; HCMA 134/2017**

**2 (20101 UGSC 36**

**3 [2Q17]. UGCA6Q**

**4 HCMA 02 of 2022 High Court of Uganda (16th August 2022) Per Wagona J.**

**5 HCMA 516 Of 2006**

**6 [1979] HCB24**

and *Gashirabake v Mwesigye[7](#page-3-0)* for the proposition that limitation is an absolute defence. We were asked to dismiss the main claim and the application.

### **Rejoinder**

- **[12]** Counsel for the Applicant reiterated his earlier submission on the existence of the UPF and cited *Preg-Tech Communications Limited v Uganda Police Force[8](#page-3-1)* where a judgment had been entered against the UPF. Counsel also cited *Bonabana Janet v Byamugisha Baby Coach & Sons Ltd & Ors [9](#page-3-2)* for the proposition that a plaintiff was at liberty to add any party to a suit. - **[13]** Concerning limitation, it was argued that the Applicant lodged his complaint with the labour officer on the 26th of November 2020, two months after he had been deleted from the payroll. Counsel for the Applicant suggested that the State Attorney was intentionally distorting facts and asked the Court to permit the amendment.

#### **Determination.**

- **[14]** The law on amendment of pleadings is very well settled. Order 6 Rule 19 CPR gives the Court a wide berth to grant leave to a party to amend their pleadings at any stage of the proceedings for the purposes of determining the real questions in controversy between the parties. The wealth of jurisprudence[10](#page-3-3) on amendments is unanimous on the principle considerations for a grant of leave, which can be summarised thus: - (i) Amendments are allowed by the courts so that the real question in controversy between the parties is determined and justice is administered without undue regard to technicalities. - (ii) The amendment should not occasion injustice to the opposite party. - (iii) It should be granted if it is in the interests of justice and to avoid a multiplicity of suits. - (iv) The application should be made in good faith. - (v) No amendments should be allowed where it is expressly or impliedly prohibited by any law. - (vi) The court shall not exercise its discretion to allow an amendment which has the effect of substituting one distinctive cause of action for another.11 12 - **[15]** The gist of this application is that the Applicant seeks to amend his pleadings by substituting the UPF with the Attorney General. This is governed under Order 1 rule 10(2)CPR, which permits a wide berth in striking out or adding a party to a suit to enable the Court to effectually and completely adjudicate the matter before it. The Court of Appeal in *Namyeka & 2 Ors* Vs *Parliamentary Commission'2* affirmed this discretion finding Order 1 rule 10 very accommodative in permitting the addition or striking out parties to a suit.

*L DR 192 of2023 Ruling Anthony Wabwire sanaJ*

**7 (20221 UGIC24**

**8 [2021] UGPPDPAAT 8**

**9HCMA 100 of 2022**

**10 See** *Gaso Transport Services (Bus) Ltd vMartin Adala Obene* **SCCA No. 4 1994 Per Tsekoko JSC and** *Namatovu and2 Others v Seguya and 7 Others* **[2023] UGHCFD 97 A,**

**&quot; Per Wamala J. in** *M\$s Xsabo Power Limited v Great Lakes Energy Company* **<W2Q24] UGHCCD 57 12 [20191 UGCA336 Z'" ^\!**

- **[16]** The competing contestations now before us are that Respondent asserts that the UPF is a non-existent entity that cannot be substituted while the Applicant counters that UPF is existent by Article 211(1) of the 1995 Constitution and Section 2PA. - **[17]** Under Article 211(1) of the Constitution, the UPF is established. Its functions and command structure are set out in Articles 212 and 213 of the Constitution. In the exercise of its legislative mandate under Article 214, Parliament enacted the PA to regulate the UPF. Section 2PA establishes the UPF. Under Sections 3 and 4PA, the UPF's composition and functions are provided for. Under Section 13PA, the Police Authority and the Inspector General of Police may receive the delegated powers of the President of the Republic of Uganda for the appointment and discharge of police officers. Under Part VI PA, disciplinary control, including dismissal of Police Officers, is vested in the Police Authority and Police Council. To this end, the UPF has a clear legal standing for the exercise of its constitutional function. To all intents and purposes, it has functional legal capacity and existence. However, in our reading of the PA, we did not find a provision establishing the UPF as a corporate body with perpetual succession capable of suing and being sued in its name. It therefore is legally 'non-existent' for purposes of a suit against it. Counsel for the Applicant did not point us in the direction of any such provision, might we have missed it. - **[18]** It is the position of civil procedural law that suits shall be filed against legal persons, both natural and artificial. The question in this litigation is whether the UPF can be sued in its name. We have established from the provisions of the PA that it is not established as a juristic legal person. Under Section 2 of the Civil Procedure and Limitation (Miscellaneous Provisions) Act Cap. 283 **(the CPLMPA)** companies, commissions, and other authorities set up by Acts of Parliament may sue or be sued in their corporate names[13](#page-4-0). Under Schedule 1 of the CPLMPA, a list of scheduled corporations is provided, but it does not include the UPF. It would follow that the UPF is not a corporate body capable of suing in its name. On a reading of the relevant statutes, the Learned State Attorney has made a most compelling argument. - **[19]** In a spirited attempt to persuade us that the UPF could be sued in its own name, Mr. Owakubariho drew our attention to *Preg-Tech.* What were the facts in *Preg-Tech?* First, *Preg-Tech* was before the Public Procurement and Disposal of Public Assets Appeals Tribunal(the **Tribunal)** for adjudication of a review application concerning the procurement of a video spectral comparator by the UPF. Under Section 115 of the Public Procurement and Disposal of Public Assets Act Cap. 205, a bidder or person aggrieved by a decision of an accounting officer may apply to the PPDA Tribunal seeking to review a decision of a procuring and disposing entity. In our view, the purview of the PPDA Tribunal is over the decisions of procuring and disposal entities which, under Section 2 of the PPDA Act, include a Ministry of Government, a district or municipal council, a body established by an Act of Parliament, a commission, public university, Bank of Uganda and any other procuring and disposing entity as may be prescribed by the Minister. In *Preg-Tech,* the Tribunal, with Gimara S. C. presiding, set aside a decision of the UPF's Accounting Officer. We think the *Preg-Tech* case is inapplicable in the present case because the dispute is not a procurement question placed before the PPDA Tribunal. It is an employment dispute filed before the Industrial Court and for the reasons that there are clear provisions of law governing disputes filed before Court's we would have difficulty in accepting Mr. Owakubariho's argument.

*LDR 192of2023 RulingAnthonyWabvire* **/If kw***J*

**13 See M. Ssekaana J. and SN Ssekaana "Civil Procedure and Practice in Uganda"**

**[20]** In our view, had the framers of the PA intended the UPF to have the capacity to sue or be sued, the PA would have explicitly provided so. Therefore, to the extent that the UPF cannot sue or be sued in its own name, it does not have that juristic personality. Our approach would be consistent with other authorities concerning other bodies established by statute but without the capacity to sue or be sued. In *Attorney General v Wazuri Medicare Ltd14* the Honourable Mr. Justice Ocaya was considering an application to set aside a default judgment entered against Mulago National Referral Hospital(MNRH). His Lordship held;

> *"Capacity to sue and be sued in respect of non-natural persons is a creature of statute. One must show which statute clothes a non-natural person with capacity to sue and be sued. See Alenyo George William v The Chief Registrar, Courts ofJudicature & Ors CACP 32/2014. Counsel for the Respondent did not refer me to a single law conferring capacity to sue and be sued on MNRH. Further, I did not find any law conferring the same status. Capacity to sue and be sued cannot be circumstantial; it is not sufficient to say that an institution holds itself out as having the corporate capacity and therefore, by these representations, it is capable of suing and being sued. Capacity to sue and be sued is a legal construct and nothing except a reference to a law granting such capacity would suffice.*

- **[21]** We agree with the above dicta. There has been nothing to show that the UPF has legal capacity. In *Elamin,* which Mr. Masaba referred us to, an objection was taken to the legal personality of Dhabi Group, a United Emirates-based conglomerate. The Court of Appeal upheld the Learned Trial Judge's finding that the Dhabi Group did not exist within the Court's jurisdiction and, therefore, could not be substituted under Order 1 rule 10(4)CPR. Mr. Masaba also referred us to *Mulangira Simbwa,* where a defendant described as the Board of Trustees of Rubaga Miracle Centre Cathedral was found to be non-existent in law and, therefore, not substitutable. In the present case, the statute(PA) does not say UPF can be brought to Court. Consequently, we cannot accept Mr. Owakubariho's spirited but not compelling argument. The law does not support the proposition that the UPF can be sued in the circumstances of the present case, and that would make it substitutable on the grain of authorities. - **[22]** There are few other exceptions where UPF or its officers can be brought to the Courts in their names are limited to judicial review proceedings and matters of infringement of constitutional rights. In *Tumukunde v Attorney General & Another*[15](#page-5-0) Ssekaana J. holds the UPF to be a public body. The definition of a public body would be consistent with the constitutional establishment of the UPF, amplified by the enactment of the PA. In this purview, the UPF is not non-existent, only that it does not have the juristic capacity to sue or be sued. Officers of the UPF can and have been subjected to various administrative and judicial review proceedings. (See *SP Ajuna Mark v Attorney General and Another[16](#page-5-1)* and *AIP Justus Kabagambe v The Inspector General of The Uganda Police Force[17](#page-5-2).* In cases such as *Ajuna,* the Inspector General of Police or such other officer is joined with the Attorney

*LDR 192 of2023 Ruling Anthony*

**M HCMA 283 of 2023(16th May 2023)**

**15 [20201 UGHCCD 191**

**16 (20231 UGHCCD 23**

**17 [20081 UGHC 34**

General on the old age principle of vicarious liability.18 Public bodies and their officers have been subjected to legal proceedings in administrative law and judicial review applications. The rationale under administrative law is to taper the excesses of administrative power, as explained by Ssekaana J in *Kaweesa v Attorney General'[9](#page-6-0).*

- **[23]** The present claim is founded under an employment contract. It is not a judicial review application. The Inspector General of Police signed the Applicant's letter of appointment on the authority of the Police Council, which exercises delegated authority over appointments under Section 13PA. Therefore, the Respondent was employed as a police officer of the Uganda Police. According to the provisions of Article 250 of the Constitution and Section 10 of the Government Proceedings Act Cap. 287, any action or civil proceedings against the UPF concerning the employment contract not brought as judicial review proceedings should have been filed against the Attorney General[20](#page-6-1). It follows that the memorandum of claim, as is, is bad. It is brought against a body that cannot sue or be sued. The authorities hold that such a claim is incurable by amendment. In *Wazuri,* Justice Ocaya was emphatic; His Lordship held that "it is trite law that a suit solely against a non-existent party is fatally defective and cannot be cured by amendment". Because UPF cannot sue or be sued in its own name, we must reject Labour Dispute Miscellaneous Application No. 193 of 2023, which seeks to amend the memorandum of claim in Labour Dispute Reference No. 154 of 2021 by substituting the UPF with the Attorney General. Because of the finding that the memorandum of claim in Labour Dispute Reference No. 154 of 2021 is bad in law and incurable by amendment, that reference must collapse and is hereby dismissed. No amount of legal scaffolding can confer upon UPF the legal capacity to sustain it as a Respondent in both the application and main claim. Both matters now collapse. - **[24]** Having found, as we have in paragraph [23] above, it is not necessary to address the question of limitation. - **[25]** Given the overriding objective of increasing access to justice, it is not the view of the Court that an award of costs should burden the Applicant. There is to be no order as to costs.

**Signed, dated and delivered at Kampala this 8th day of November 2024.**

Anthonv Wabwire Musana, **Judge,ulnmjstrial Court of Uganda**

**THE PANELISTS AGREE:**

- 1. Hon. Jimmy Musimbi, - 2. Hon. Emmanuel Bigirimana & - 3. Hon. Can Amos Lapenga

**'8 See Wakiso Mathias v Attorney General (20081 UGHC 34**

**19 (20201 UGHCCD 130**

**20 Per 0kalany J in Luyenjie & 2 Others v Uganda [2024] UGHCICD 2 (23 April 2024)**

Page 8 of 8

8th of November 2024

10:22 am

## **Appearances**

1. For the Claimant:

**Claimant in Court**

2. Respondent absent:

Mr. Samuel Mukiza.

**Claimant:**

Court Clerk:

Matter is for award, and we are ready to receive it.

**Court:**

Award delivered in open Court.