Mbale City v Nasimiyu (Civil Appeal 135 of 2024) [2024] UGHC 1095 (17 December 2024)

Full Case Text

### THE REPUBLIC OF UGNADA

# IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE

## CIVIL APPEAL NO.135 OF 2024

(ARISING FROM EQUAL OPPORTUNITIES COMMISSION COMPLAINT NO/EOC/ER/236/2024)

**MBALE CITY ::::::::::::::::::::::::::::::::::::**

### **VERSUS**

NASIMIYU LINUS ::::::::::::::::::::::::::::::::::::

#### **BEFORE: HON. JUSTICE LUBEGA FAROUQ**

### **RULING**

- 1. This appeal/application was brought by way of Notice of Motion under sections 98 of the Civil Procedure Act Cap 282, section 29 of the Equal Opportunities Commission Act Cap 7, Regulation 29 of the Equal Opportunities Commission Regulations, 2014 and Order 51 rule 6 and 52 rule 1 & 3 of the Civil Procedure Rules SI.71-1 for order that- - (a) That time be enlarged to allow the Appellant/Applicant to file this appeal out of time; - (b) The interim order dated 15th of October, 2024 issued by the Hon. Mary Wasagali, presiding member sitting as a single Commissioner, at the Equal Opportunities Commission, halting the recruitment process for the position of City Education Officer which was run in external advert No. 002 of 2024, be set aside; - (c) The Appellant be allowed to proceed with the recruitment exercise of the position of the City Education Officer; - (d) Costs of this appeal be provided for.

- 2. This application/ appeal is supported by the affidavit sworn by Waboga Kasim, the Assistant Deputy Town Clerk of the Appellant/Applicant and briefly the grounds are as follows- - (a) That the Appellant/Applicant was the Respondent in the Equal Opportunities Commission Complaint No. EOC/ER/236/2024 - (b) That the Hon. Mary Wasagali, sitting as a single presiding member issued an interim order stopping the recruitment exercise under the Advert No. 002 of 2024 - (c) That the Respondent is a substantive Principal Education Officer employed by the Applicant/Appellant and she is not the Ag. City Education Officer of Mbale City - (d) That the Appellant/Applicant's town clerk interdicted the Respondent on the 18th of September, 2024 for failure to corporate during the investigations on the misuse of the Government Motor Vehicle No. UG3035E leading to an accident - (e) The Equal Opportunities Commission had no jurisdiction to handle this matter nor grant the interim order in this matter. - (f) That the said order was issued without proper quorum - (g) That there was no formal or oral application made by the Respondent before the interim order was issued. - (h) The Appellant/Applicant was not given an opportunity to be heard before issuing the interim order. - (i) That the wage bill/funds secured for recruitment of the City Education Officer shall be sent back to the consolidated fund at the end of this financial year if the applicant fails to utilize the same - (j) That the Respondent was appointed and she is the substantive Principle Education Officer attached to Mbale City and she has never been appointed as the Ag. City Education Officer for Mbale City. - (k) That the wage bill leading to the said external advert No. 002 of 2024, was made some times back in the year 2024, which has amongst other jobs.

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- (1) That the Respondent is not affected by the said Advert since it is external calling upon any person to apply and other vacant positions at Mbale City - That the Appellant/Applicant brought this appeal seeking orders for $(m)$ setting aside the interim order issued on the 15th of October, 2024 halting the recruitment process for the position of City Education Officer in advert No. 002 of 2024. - 3. This appeal/application was opposed by the affidavit in reply sworn by the Respondent where she averred as follows- - (a) That at the beginning of the hearing of this appeal/application I shall raise a preliminary objection to the effect that this appeal is fatally defective, barred in law, it is frivolous and vexatious, it is an abuse of court process and thereafter move court to have the same dismissed with costs. - (b) That the Equal Opportunities Commission has jurisdiction and the Appellant's Town Clerk did submit to the jurisdiction of the commission and never at any one had point challenged the same. - (c) That the Appellant's Town Clerk did put out an advert for the position of City Education Officer while I am still on interdiction which interdiction is a subject of the ongoing investigations by the Commission which clearly was unfair, discriminatory and a matter within the jurisdiction of the Commission - (d) That while the matter was ongoing through the pre-tribunal session which is normally handled by the member of Commission as is the practice there, the Appellant advertised the position of City Education Officer on 14th October, 2024 while the matter was still under inquiry by the Equal Opportunities Commission and by prayer of the senior Commission counsel, the single member exercised powers under the law to issue an interim order on 15th October 2024 in the interest of justice.

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- (e) That I did receive a letter dated 5th September, 2024 from the Appellant's Town Clerk on the 11th September, 2024 and I wrote my response which was received on 17th September 2024 within 7 days from the date I was served with the Appellant's letter. - (f) That a single member of the Commission has powers under the law to perform the functions or powers of the Commission. - (g) That the averments are false because the Appellant/Applicant was dully served with hearing notices on two occasions and the same were received and even the order was issued in the presence of the Appellant's City Town Clerk. - (h) That she was appointed as the Ag. City Education Officer for Mbale City. - (i) That the request of approval of advertisement was misconceived because I have interest in this position which I have been holding until the interdiction was issued against me which means I cannot apply for the position since I am on interdiction unlawfully, illegally and irregularly which is discriminatory, unfair and uncalled for. - (j) That to the best of my knowledge, funds are only taken back during the financial year and that from every 1st July to 30th but of now, we are not at the end financial year. Therefore, the reasons advanced are not genuine as annexure D show that the clearance is valid up to 30th June, 2025. - (k) That I am equally eligible for the position of City Education Officer for which I have sufficient interest in the position but the City Town Clerk is just hell-bent on frustrating my life without justification and the people have in fact already applied and even stealthily short listed for interviews which were supposed to be on 5th December, 2024 - (l) That the actions in Annexures E1 and E2 above amount to contempt of a lawful court order which the Appellant/Applicant needs to purge herself of before getting any order from this court and in fact the Equal the Commission reminder did $write = a$ to Opportunities

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lawful the obey the order but Appellant/Applicant to Appellant/Applicant with impunity disobeyed the same.

4. The Appellant/Applicant further rejoined the affidavit in opposition. I will consider the averments therein in the determination of this appeal

## 5. Legal Representation

- 6. Serugendo Joshua from the Attorney General's Chamber's represented the Appellant/Applicant whereas Luchivia & Co Advocates represented the Respondent. - 7. The hearing was conducted in the presence of the Applicant and the Respondent. - 8. This matter proceeded by way of oral submissions and both counsel complied.

## 9. Issues

- Counsel for the Appellant/Applicant raised the following issues for 10. this court's resolution. - (a) Whether there is substantial cause for enlargement of time to file the appeal. - (b) Whether the interim order issued on 15th of October, 2024 can be set aside?

#### 11. **Preliminary Objections**

12. 1st Preliminary objection: Objection as to enlargement of time to appeal

13. Counsel for the Respondent submitted that the appeal is defective and barred by law pursuit to section 29 and Regulation 29 of the Equal Opportunities Commission Act and Regulations. Counsel argued that the above provisions of the law mandates that an appeal has to be filed within 30 days from the date of the decision. He contended that the laws don't provide for extension of time within which to appeal. Counsel referred to the case of Makula International Ltd V. His Eminence Cardinal **Nsubuga & Anor [1982] UGSC2** to support his submissions.

14. Counsel submitted that where an act or rules are silent on time within which to file a matter, or where that act does not provide court with power to extend time, the court has no inherent power to extend time set by the statute.

- Counsel further argued that Civil Appeal No. 135 of 2024 was filed 15. on 25th of November, 2024 but there was no application for extension of time hence this appeal is illegally before court as was held by **Court of** Appeal in Kenyi V. Kanyi Civil Appeal No. 89 of 2024, where it was held that an appeal filed without leave of court is incompetent and that such appeal which is out of time, can only be filed after an application for extension of time has been heard. - Counsel submitted that this court does not have jurisdiction and 16. powers to enlarge time where the supporting law and Regulations does not provide for the extension of time. - Counsel for the Appellant/applicant on the other hand submitted 17. that under section 30 of the Equal Opportunities Act the rules of procedure of the Civil Procedure Rules are applicable for the Commission to apply them to enlargement of time.

#### **Determination of court** 18.

Section 29(1) of the Equal Opportunities Act provides that-19.

> "Any person aggrieved by a settlement, recommendation or an order of the Commission may subject to this Act, appeal to the High Court within thirty days after the settlement, recommendation or order of the Commission is communicated to him or her

> (2) the Chief Justice shall make rules of court for regulating appeals under this section."

- Regulation 29 of the Equal Opportunities Regulations provides that-20. "A person aggrieved by a decision of the Commission shall appeal to the High Court within thirty days from the date of the decision. - Section 30 of the Equal Opportunities Act provides that-21.

"Where the rules of procedure of the Commission do not provide for a particular matter before the Commission, rules applicable to civil or criminal proceeding in a court of law may be applied by the Commission with such modification as it may be necessary."

- From the above provisions of the law, it is apparent that when a 22. party is dissatisfied with the decision of Equal Opportunities Commission, he or she may appeal against the decision to the High Court within 30 days. - In the instant case, the Appellant/Applicant averred under 23. paragraph 5 of the affidavit in support that on 15th of October, 2024, a single presiding member of the Equal Opportunities Commission issued an interim order halting the recruitment process for the position of City Education Officer in Mbale City. This Appeal was however filed in this court on 25th of November, 2024 which means it was filed when 30 days required by the law had elapsed. - Legally, when time within which to appeal elapses, it implies that 24. the intending Appellant has no locus standi to institute an appeal in that matter until he or she is given permission to do so, and to this court, that process requires a separate application. - I am aware that in the interest of justice for the litigants, this court 25. and other courts have on different occasions allowed to consider omnibus applications where a prayer for extension of time is made under the appeal suit. This has however now become a habit yet not proper. - It is very pertinent to note that when time within which to appeal 26. elapses, there cannot be an appeal in the eyes of the law unless the intending Appellant has sought leave of court to appeal out of time. - In the instant case like it was argued by counsel for the Respondent, 27. the Appellant did not apply for extension of time within which to appeal hence, the stated appeal does not exist in the eyes of the law.

- An appeal is a creature of statute and it must be specifically provided 28. for by the law. There is therefore no such a thing as inherent appellate jurisdiction. (See: Baku Rephael Obudra & Anor V. Attorney General, Supreme Court Constitutional Appeal No. 1 of 2005). - It was therefore erroneous for counsel for the Appellant/Applicant 29. to institute this appeal before seeking leave of court to do so. - I will now address the issue of whether the Equal Opportunities Act 30. and the Regulations provide for enlargement of time or not - It is trite that often time, courts have enlarged the period within 31. which to appeal upon proof of sufficient cause but the same should be by way of a separate application under Order 52 of the Civil Procedure Rules. - The instant appeal is however a unique appeal arising from the 32. Equal Opportunities Commission. That Commission has an Act and the decision of the single member of the Regulations which provides for the procedures that govern its businesses. The provisions of the law therein are however silent on the procedure to be undertaken when time within which to appeal expires. - Counsel for the Appellant/applicant submitted that under section 33. 30 of the Equal Opportunities Act, the rules of procedure for the Civil Procedure Rules are applicable. This is however not true. That section only governs the business of the Commission if it happens to face a situation which is not governed by the Act, then, the Civil Procedure Rules are applicable with modifications. - However, different from that situation, the current circumstance 34. concerns enlargement of time within which to appeal against the orders of the Commission to High Court. Section 29(2) of the Equal Opportunities Act gives powers to the Chief Justice to make rules governing the procedure of appeals from the Equal Opportunities Commission to High Court. I have however not come across the said rules in my research. This would therefore mean that the Act and the Regulations are silent on the procedure to be undertaken.

However, in the case of National Telephone Co. V. Postmaster 35. General L. R 1913 A. C. 540 at page 552 Lord Viscount Haldane L. C pointed out that-

> "When a question is stated to be referred to an established *court without more, it, in my opinion, imports that the ordinary incidents of the procedure of that court are to attach and also* that any general right of appeal from its decisions likewise attaches."

# 36.

## Lord Parker of Waddington also at page 562 observed that-

*"Where by statute matters are referred to the determination of* a court of record with no further provision, the necessary implication is. I think that the court of record will determine the *matters as a court..."*

A similar view was expressed by the Privy Council in **Asaikkappa** 37. Chetti V. Chandrasekhara Thevar 74 I. A.204 where it was stated at page $271$ that –

> "The true rule is that where a legal right is in dispute and the ordinary courts of the country are seized of such dispute, the courts are governed by the ordinary rules of procedure applicable thereto."

Applying the above decisions to the instant case, simply means that 38. in circumstances where the Equal Opportunities Commission Act and its Regulations are silent on the procedure to be undertaken when the time within which to appeal expires, this court is bound by its ordinary rules of procedure found in the Civil Procedure Rules.

- In light of the above, the procedure which ought to govern the 39. Appellant/Applicant is the ordinary way of instituting appeals envisaged under Order 43 of the Civil Procedure Rule SI.71. - From the foregoing, it is clear that the Appellant followed a wrong 40. procedure when instituting this appeal. - This is preliminary objection is upheld. 41.

- Before I conclude, I would like to advise the Equal Opportunities 42. Commission to pursue the Chief Justice to establish the necessary rules for regulating appeals from the Commission in order to prevent such absurd situations in the future. - Consequently, this appeal is incompetent before court and it is 43. accordingly dismissed. - Costs are awarded to the Respondent. 44.

I so order. 45.

LUBEGA FAROUQ Ag. JUDGE

Ruling delivered via the emails of the Advocates of the parties on $17$ th day of December, 2024