Mbbale and 59 Others v Makerere University (Labour Dispute Miscellaneous Application 48 of 2024) [2025] UGIC 20 (27 February 2025)

Full Case Text

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# **THE REPUBLIC OF UGANDA IN THE INDUSTRIAL COURT OF UGANDA AT KAMPALA LABOUR DISPUTE MISCELLANEOUS APPLICATION NO. 048 OF 2024**

*(Arising from LDR No.022 of 2015)*

**MUBBALEWYCLIFF &59 ORS ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANTS**

# *0* **VERSUS**

# **MAKERERE UNIVERSITY I:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

**Before:** The Hon. Mr. Justice Anthony Wabwire Musana,

**The Panelists:** Hon. Adrine Namara, Hon. Suzan Nabirye & Hon. Michael Matovu.

*Representation:*

*1. Mr. Jonan Nuwandinda Rwambuka of Rwambuka & Co Advocates for the Respondent.*

*2. Ms. Fiona Atukunda of the Respondent's Legal Department, for the Respondent.*

#### *Flynote*

*Civil Procedure-Contempt of Court-Elements ofcontempt of Court-Sparing use of contempt proceedings. Employment law and procedure-Section 8(3)(d) LADASA-Power ofIndustrial Court to make orders it deems fit.*

#### *Case Summary*

*An application was made to hold the Respondent in contempt of court for failing to repatriate the Applicants as previously ordered. The Applicants sought financial remedies, claiming they had to arrange their own repatriation due to the Respondent's inaction, whilst the Respondent argued they were awaiting the Applicant's repatriation details. The court considered whether the Respondent knowingly violated the order and lackedjust cause. While the Respondent fulfilled the monetary aspects ofthe initial order, the court acknowledged the failure to repatriate; it accepted the argument that the Respondent's delay stemmed from a need for specific repatriation details. The court didnot find the Respondent in contempt. Instead, the court directed ajoint effort with the Ministry ofPublic Service and the Ministry of Works and Transport to determine the repatriation costs and ensure the Applicants' repatriation or reimbursement within a specific timeframe, with a follow-up report required.*

Page 2 of 9

# **RULING**

# **Introduction**

**[1]** By motion under Section 98 of the Civil Procedure Act Cap.71 *{from now CPA)* and Order 50 Rules 1 and 2 of the Civil Procedure Rules S.l 71-3 *(from now CPR),* the Applicants brought this application to hold the Respondent in contempt of Court of an order of this Court entered in Labour Dispute reference No. 022 of 2015(the main cause) of the 6th of March 2023, to repatriate them to their homes. The Applicants sought UGXX 53,515,500/= in repatriation, UGX 500,000,000/= in general damages, UGX 100,000,000/= in exemplary damages, UGX 50,000,000/= as a fine for contempt of Court, the Committal of the Respondent's Vice Chancellor and University Secretary in civil prison until the Respondent complies, interest on the monetary claims and costs of this application.

#### **Background facts**

- **[2]** The background facts are that in the main cause, the Respondent was ordered to repatriate the applicants to their homes. On the 13th of March 2023, the Applicant's lawyers asked the Respondent to share a repatriation plan, but in total disregard of the decree of this Court, the Respondent ignored the Applicant's Counsel. According to Mutwalanda Paul, who swore the supporting affidavit, the Applicants have since improvised means of repatriating themselves and seek to be reimbursed in the sum of UGX 53,515,500/= - **[3]** The Respondent opposed the application. Yusuf Kiranda, the Respondent's Secretary who deposed the affidavit in reply, averred that the Respondent had received and complied with the monetary orders in the decree of this Court and was awaiting the Applicant's indication on particulars of repatriation. The Respondent was now surprised that the Applicant sought the monetary value of repatriation. The Respondent averred that the self-repatriation should not be visited on the Respondent as it was willing to repatriate the Applicants if the Repatriation Schedule were presented.

**LDMA48 of 2024 Morale Wj lftand'59 Others v Makerere University. Ruling. Anthony Wabwire Musana J.**

- **[4]** In rejoinder, Mr. Mutwalanda averred that the Applicant's Counsel had severed a demand letter for repatriation of the Applicants on 13th March 2023, but it was ignored. That the Respondent was fully aware of the Claimant's homes and failed to provide a repatriation plan which was to be implemented immediately and is therefore in contempt of Court. - **[5]** The parties filed written arguments that addressed two broad issues: contempt and remedies. We are grateful for the succinct arguments and will address whether the Respondent should be held in contempt first.

# **The Applicants' Submissions**

*0*

**[6]** Counsel for the Applicant cited *Adome v Uganda Electricity Generation Company[1](#page-2-0)* for the essential elements of contempt of court being that for contempt to be established, it must be proven that the party accused knew the order existed, had the ability to comply with the order but violated it knowingly and lacks cause or excuse for the violation. It was submitted that on page 142 of the trial bundle, in the main cause, the Applicants had listed their respective home districts indicating the distance and repeated this in the lawyer's demand after the Court had ordered repatriation. The Respondent did not comply and knowingly violated the Court order when it failed to respond to the demand letter. Because the Respondent violated the Court Order, we were asked to find it contemptible.

#### **Respondent's submissions.**

**[7]** Counsel for the Respondent referred to the 7th Edition of Black's Law Dictionary for the definition of contempt and cited *Adome.* The Respondent did not dispute the order of the Court, had complied with the order of the Court, paid UGX 632,454,000/= in the

**LOMA 48 of 2024 MobaaleWyd ftand 59 Others v Makerere University. Ruling. Anthony Wabwire Musana J.**

1 2023 UGCommC 45

monetary award and submitted that the Applicants did not avail themselves to the Respondent together with their dates of travel. It was submitted that fire had gutted the Respondent's building, destroying records. It was suggested that it had not been proved that the Respondent acted wilfully in disobeying the Court order. It was also submitted that because there was no schedule and the order did not have a timeline, the Respondent had cause.

# **Rejoinder**

**[8]** In rejoinder, Counsel for the Applicant argued that the order was to be complied with immediately upon issuance, the 6th of March 2023. It was submitted that the Respondents had been given the option to provide the applicants with repatriation or pay the sum of UGX 53,515,5000/=. The Respondent ignored this letter; therefore, while it could comply with the Court order, it knowingly chose not to do so. Counsel for the Applicants asked that we find the Respondent in contempt.

# **Determination**

- **[9]** According to Black's Law Dictionary, contempt of court means conduct that defies the authority or dignity of a Court. This definition is significant as it provides a contemporary and widely accepted definition of contempt of court.[2](#page-3-0) The tests of contempt, as restated by Counsel, are settled. They are (i)there is a lawful court order, (ii)the potential contemnor must have been aware of the court order, (iii) the potential contemnor must have failed to comply with the order, and (iv) the potential contemnor must lack just cause or lawful excuse for the violation.[3](#page-3-1) - **[10]** In *Masika and 4 Others v the Secretary Kyamboqo University andAnother[4](#page-3-2) ,* this Court was on the persuasion that to find a potential contemnor in contempt of court, the Court

2 Black's Law Dictionary, Edn Page 360

*3 See Megha Industries Ltd v Conform Uganda Ltd Ocen Kassim v Soroti District Land Board, Brenda Nambi v Raymond Lwanga and Sarah Nyakato v Lin Jeng Liang* 4 [2024] UGiC 26

must be satisfied on a balance higher than a balance of probabilities but lower than beyond a reasonable doubt.

- **[11]** The facts of this matter are fairly straightforward, and we think we do not need to return to the reference and award. What is common cause in this application is that by decree of this Court dated the 6th of March 2023, the Respondent was ordered to pay specific monetary awards to the Applicants and *"repatriate the Claimants/Applicants to their homes".* The Respondent complied with orders for the monetary awards and has not repatriated the Applicants. In paragraph 7 of Secretary Kiranda's affidavit in reply, the Respondent avers that it is waiting for a repatriation schedule. In paragraph 9, Secretary Kiranda avers that the Respondent is willing and ready to repatriate the Applicants to their home districts. It is, therefore, common that there is a lawful court order issued on the 6th of March 2023; the Respondent was aware of the court order and substantially complied with it but failed to comply with the repatriation order. That leaves the final element of contempt unanswered or unresolved, whether the Respondent has just or lawful cause for non-compliance. - **[12]** For lawful or just cause, the Respondent makes two principal assertions: First, the order was not time-bound. Secondly, it was waiting to receive the Applicant's repatriation details. Mr. Rwambuka counters that the Respondent had these details all along, and it had served a letter demanding repatriation together with the particulars about the Respondent ignored this. Ms. Atukunda's is that the Respondent's records were consumed in a fire, which made it difficult for the Respondent to prepare for repatriation. The fire at the Ivory Tower is notorious in the public domain. What is not within the ambit of notoriety is what documents were consumed during that fire. - **[13]** This is legal ping-pong. Ms. Atukunda's allusion to records consumed by fire is a barstatement. It was not contained in Secretary Kiranda's affidavit in reply, and we would not be inclined to accept it. It is trite that litigants are precluded from giving evidence in submissions. In the demand letter(A3 *to the Applicant's affidavit in support),* Counsel for the Applicant suggests an earlier demand for UGX 53 515,500/= for repatriation.

**LOMA 48 of 2024 MafiaaleWyt ind5? Others v Makerere University. Ruling. Anthony Wabwire Musana 1**

However, we were not presented with this initial demand, and by way of an unsupported averment, Mr. Mutwalanda suggests that the Applicants improvised other means of repatriation. Mr. Rwambuka aptly calls this self-repatriated. But there is no evidence of employment of other means so that we may believe the claim for UGX 53,515,500/=. There are no invoices, receipts or acknowledgements. On its part, the Respondent argued that it had paid upwards of UGX 600,000,000/= in satisfaction of the award and, therefore, it should not be seen to have ignored the order for repatriation. Secretary Kiranda reinforces this averment and states that the Respondent is willing to comply as soon as it is told.5

- **[14]** We find this to be a believable and helpful proposition upon which this application turns. - **[15]** As indicated in *Masika,* before we find the potential contemnor in contempt of court, we must be satisfied on a threshold higher than the balance of probabilities but lower than beyond reasonable doubt.6 It is a standard that is higher than that of civil proceedings but lower than that demanded of criminal liability. This brings in the fourth element of cause, which would form a defence for failure to comply with the Court order. In *Nyende,* we established just cause, which derives from the Latin *"justa causa"* or *"causa justa",* which means lawful ground.7 It means a legally sufficient reason. It is a burden placed on a litigant to show why a request should be granted or an action excused.3 Was waiting for particulars of repatriation a satisfactory explanation for nonobservance of the lawful and existent court order? In our view, the answer is yes because the Respondent is not wilful in refusing to comply with the order. The Respondent complied with orders (a) to (e) of the decree and did not comply with the order for repatriation because it did not have particulars.

5 See paragraphs 7,9 and 17 of the affidavit in reply which are consistent with a willingness to comply with the Court order.

6 Hon Silenda Sebalu v Secretary General of East African Community No. 8 of 2021 as cited with approval in

H. C. M324 of 2020 Andrew K. Lajul v UCDA and 2 Ors

7 Blacks Law Dictionary 1101 Edn by Bryan Garner al page 1033

8 Ibid page 274

- **[16]** Therefore, in our view, there is room for the Respondent to comply before it may be held in contempt. In *Onen David & 2 Ors v Otto Ocan & 2 Ors9* it was observed that once an applicant has proved the Respondent's non-compliance with an existing Court order, the potential contemnor must prove inability to comply or justiciable cause. We think there is justiciable cause in the present case, and we are not inclined to hold the Respondent or its accounting officers in contempt. This is more so because, in *Adome,* the Court observed that it is trite that the power of punishing for contempt should be used sparingly and only in serious cases or where the court is compelled to punish by reason of persistent and obstinate defiance and interference of the contemnor. In our estimation, the Applicants have not established a pattern of behaviour of the Respondent that would be consistent with obstinate defiance. Save for the letter dated the 13,h of March 2023; there is no other evidence before us of an attempt to execute the decree so that we may hold the Respondent in contempt for repeated and obstinate defiance. - **[17]** Having found that the Respondent is not in contempt of the Court order, the application would fail, and it would be unnecessary to consider any of the remedies as sought. The collapse of the application is not to be with costs to the Respondent. - **[18]** What, then, is the order's fate as it remains unsatisfied to the extent of repatriation? Our view is that Section 8(3)(d) of the Labour Disputes( Arbitration and Settlement) Act Cap. **227("the LADASA")** confers jurisdiction on this Court to make effective orders and relief that it may deem fit. We are mindful that contempt proceedings are not a means of enforcing Court orders. But at the same time, a party that approaches the Court for a remedy against a party willing to offer a remedy must not be turned away because contempt proceedings are not for enforcement of Court orders. We are emboldened in taking this stance by the provision of Section 34 (1 )CPA, which is to the effect that: - All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge, or satisfaction of the

**LOMA 48 of 2024 Mofiaale Wyi ind'59 Others v Makerere University. Ruling. Anthony Wabwire Musana J.**

9HCMANo. 131 of 2019

decree shall be determined by the court executing the decree and not by a separate suit. Therefore, reading Sections 8(3)(d) LADASA and Section 34(1) CPA together, and premised on the need to make optimal use of scarce judicial resources, we now order as follows:

- (i) The Registrar of this Court is directed to obtain a certified cost of repatriation of the Applicants as listed in annexure A4 to Mr. Mutwalanda's affidavit in rejoinder dated the 24th of May 2024, in this application, from the Ministry of Public Service in conjunction with the Ministry of Works and Transport. All Applicants still within the district of Kampala shall be repatriated within 45 days of this order. All Applicants who have self-repatriated shall be entitled to reimbursement as per the assessment by the Ministry of Public Service and Ministry of Works and; - (ii) A joint report duly executed by Counsel for the Applicants and Respondent listing the status of the repatriation of the Applicants or their reimbursement shall be filed with the Registrar of this Court within 60 days from the date of this order.

#### **It is so ordered**

**Signed in chambers at Kampala 27th day of February 2025**

Anthony Wabwire Musana, **Judge, Industrial Court**

**The Panelists Agree:**

Hon. Adrine Namara,

2. Hon. Susan Nabirye &

**I direct the Acting Registrar of this Court, His Worship Dr. Daniel Lubowa, to deliver the ruling to the parties in their presence on the date appointed for delivery.**

Anthony Wabwire Musana, **Judge, Industrial Court of Uganda.**

**LOMA 48 of 2024 Mubaale Wyd ftand'59 Others v Makerere University. Ruling. Anthony Wabwire Musana J.**