Mwiru v Wamala Growers Cooperative Union Limited (Labour Dispute Reference 2 of 2022) [2024] UGIC 76 (13 December 2024)


# **THE REPUBLIC OF UGANDA IN THE INDUSTRIAL COURT OF UGANDA AT MUBENDE LABOUR DISPUTE REFERENCE NO. 002 OF 2022**

*(Arising from Labour Complaint No. CR/D/HRM/157/7/2017)*

### **MWIRU EDWARD ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::CLAIMANT**

### **VERSUS**

### **WAMALA GROWERS COOPERATIVE UNION LTD:: I:::::::::::::::::::::::::::::::::-""RESPONDENT**

#### **Before:**

The Hon. Mr. Justice Anthony Wabwire Musana

#### **Panelists:**

Hon. Jimmy Musimbi, Hon. Emmanuel Bigirimana and Hon. Michael Matovu

#### *Representation:*

*1. Mr. Muzamil Ndhego ofSMAKAdvocates for the Claimant. 2. Mr. Victor Busiinge of Ngaruye, Ruhindi, Spencer & Co. Advocates for the Respondent.*

#### *Case Summary:*

*Employment Law; Proof ofEmployment relationship: Unlawful Termination: The Claimant alleged unlawful termination after 17 years of employment, seeking significant unpaid wages and damages. The Respondent denied formal employment, claiming the Claimant worked independently in exchange for milk and provided evidence suggesting <sup>a</sup> temporary employment period. The court examined the evidence and witness testimonies, ultimately finding insufficient proof of continued employment beyond 2006. Therefore, the court dismissed the Claimant's case, concluding no unlawful termination occurred, and no remedies were warranted.*

**Heard 25.06.2024 Delivered 13.12.2024**

#### **AWARD**

### **Introduction**

**[1]** The Respondent, a cooperative union, ran a ranch at Kyankwanzi District in Central Uganda. In December 2005, it employed the Claimant as a Herdsman at a salary of UGX 200,000/= per month. The Claimant alleges that he worked for 17 years until the 9th of July 2021, when the Respondent's Secretary Manager, John Mutyaba, telephoned him and advised

him that he was no longer an employee of the Respondent. Aggrieved, he filed a complaint with Mr. George Aseka, the labour officer(the LO) at Kyankwanzi District. The LO asked the parties to settle the matter, and when they did not, on the 29th of March 2022, he referred the matter to this Court.

### **The Claim**

**[2]** In his memorandum of claim filed in the Registry of this Court at Mubende on the 31s1 of May 2022, the Claimant sought a declaration that his termination and dismissal were unlawful and unfair. He asked for an unpaid salary for 17 years in the sum of UGX 61,200,000/= general damages for breach of contract, aggravated damages, interest on general damages at a commercial rate and costs of the claim.

### **The reply**

[3] The Respondent denied the claim. It contended that in 2005, the Claimant approached it to work at its ranch, and it only allowed him to work on the farm and retain all the milk products. It did not enter into any formal employment or set any payment terms save for the provision of milk in consideration of the Claimant's services. When it decided to sell its cows in 2001, it gave him a token of appreciation of UGX 500,000/=.

### **The proceedings and evidence.**

- **[4]** When the matter came before this Court on the 23rd of May 2024, we directed the parties to file a joint trial bundle and joint scheduling memorandum. We set the matter for <sup>a</sup> scheduling conference on the 4th of June, 2024. On that day, Mr. Abel Wakaza, holding <sup>a</sup> brief for Mr. Ndhego, for the Claimant, informed us that he had served Counsel for the Respondent with a draft JSM, and we adjourned to the 12th of June 2024 for mention. That day, Mr. Ndegho indicated that he had served the JSM, the witness statements and a joint trial bundle. Upon perusal of Mr. Falidi Mugendi's affidavit of service, we were satisfied that the Respondent had been duly served, and we set the matter down for hearing on the 19lh of June 2006. - [5] On the 19th of June 2006, Mr. Victor Busiinge appeared for the Respondent and conceded to an adjournment with costs to the Claimant, which we granted in any event. On the 25lh of June 2024, Counsel had marked documents in the JTB but had not filed a JSM. They had opted to file separate memoranda. After hearing Counsel, under Order 15 Rule 5 of the Civil Procedure Rules S.l 71-1 (CPR), we set down the following issues for determination: (i) whether the Claimant was an employee of the Respondent from 2005 to 2021. (ii) Whether the Claimant's employment contract was unfairly and unlawfully terminated and (ii) what remedies are the parties entitled to ? We also admitted the Claimant's documents as CEX1 to CEX 8(a)-(i), CID1 to CID 4 and the Respondent's document as REX1.

### **The Claimant's evidence**

**[6]** The Claimant was sworn in and shown his witness statement, made on the 30lh of May

to the district officials. His salary was UGX 300,000/= per month. He took charge of the Respondent's animals after introduction and was supervised by one Charles Sekiwunga. He told us that Mr. Sekiwunga was appointed caretaker on the same day. He said he worked for 17 years until the 9th of July 2021, when he received a phone call from John Mutyaba informing him that he was no longer an employee of the Respondent. He told us that his claim was for an unpaid salary of UGX 61,200,000/= and that he had only been paid salary advance for July 2005 and July 2006. He also told us that his name was on the list of creditors as of the 30th of September 2009. He told us that he did not receive an appointment letter. He also said that Mr. Sekiwunga had written several reports regarding his claim in 2021. He said he was terminated or dismissed without a hearing, and the Respondent was liable in general and exemplary damages.

- [7] Under cross-examination, he said he had an appointment letter issued in 2005. He said his manager had confirmed that he would be paid for his 17-year service. He also said that he did not make any demands in writing and that the manager kept giving him food, encouraging him to expect payment. He said he did not recall the exact date of the sale of cows. He said he did not have any animals on the farm, nor did he do any farming. He also did not know what the microfinance support centre came to do on the land. He told us that the area's Local Council Chairman only asked him to speak to someone on the phone, and that person asked him to leave the land. He said he had now left the land. - **[8]** In reexamination, he said he did not recall the year he stopped working or the year the Respondent sold its cows. - **[9]** Charles Sekiwunga(CW2) testified next. He said he was employed and appointed as a ranch caretaker in 2005 and introduced to the Claimant, who was working as a caretaker. He also said he took charge of the respondent's animals after introduction to the District Veterinary department. It was his testimony that he was given the job on the same day as Mr. Charles Sekiwunga as the caretaker of all activities on the ranch until a substantive manager took charge. He said he worked for 19 years from 2005 until 2023 when his services were terminated and dismissed from work without his knowledge when the Respondent sold all its cows. He told us that the Respondent had failed the Claimant's salary for 17 years, amounting to UGX 61,200,000/=. He also told us that the Claimant was not called for <sup>a</sup> hearing before his termination and dismissal. - [10] In cross-examination, he admitted utilising the Respondent's land for personal use. He said he was feeding the Claimant from his land. He said he wrote three situation reports in 2021. He said he was still working for the Respondent when he gave his evidence but was terminated in 2023. - **[11]** In re-examination, he said he made the situational reports after the Respondent's Secretary Manager asked the area LC <sup>1</sup> Chairman to evict the Claimant. He told us that he was terminated after writing the reports. He then recanted that position and told us that he was still working for the Respondent. - **[12]** Mr. S. R. H Kijjambu testified next. He said he joined the Respondent in 1979, as confirmed in 1981, and served in various positions, including Secretary until 2010 when the position

IDR 02.2022 Ar/ard Anthony CMusana <sup>J</sup>

was abolished. He said that when the Claimant and CW2 were employed, he was serving the Respondent and that one Herbert Kizza Kizito employed them, the then general manager. He confirmed their respective salaries of UGX 300,000 and UGX 500,000/=. He told us that the Claimant was earning a salary and not working for milk. He said that when a printout of creditors was made in 2009, it included the Claimant's name, and he signed it. He said that because of the demand to have all creditors paid, his position of secretary was abolished in 2010 and that at this time, the Claimant was still demanding his salary arrears for 2005-2010.

[13] Under cross-examination, he said he was not terminated, but his position was abolished, which did not go well with him. He said he signed an audit report on the 21sl of December 2009 as Union Secretary. He conceded that the Claimant's name did not appear in the audit report. He said his duties as secretary included overseeing personnel and that he had never received a written complaint. In reexamination, he confirmed that he had signed the audit report. After his testimony, Mr. Ndhego closed the Claimant's case.

### **The Respondent's evidence**

- [14] Mr. William Kasagazi testified as Chief Accountant on behalf of the Respondent. He said he joined the Respondent in 1987 and was promoted to Chief Accountant in 2002. He told us that the ranch was managed by one Bbosa who, unknown to the Respondent, started using the Claimant as a ranch helper. He said because the Respondent underutilised the ranch, its Chairperson began using it to graze his animals. The Claimant got to know the Chairperson and started grazing his own animals on the land and keeping them on the land on a personal arrangement with Bbosa. When Bbosa passed away, the Respondent's Board Chairperson kept the Claimant on the land. He admitted that the Claimant was employed for two years between 11th May 2005 and December 2006 but was left to graze his animals on the land with CW2, CW3, Bbosa and others. In 2019, the Respondent entered a joint venture with MFSC, providing land while MFSC would provide animals. Thus, the Respondent asked the Claimant and all persons with animals on the land to vacate. After being asked to vacate, the Claimant started making his claims as an employee. Mr. Kasagazi suggested that the Claimant had forged documents listing him as a creditor. - [15] In cross-examination, he said the Claimant was working with the late Bosa, had been employed temporarily, and was terminated in 2008. He did not have the termination letter. Regarding the balance sheet, he said it was for the year ending 30,h September 2009 and was authentic. He told us that he knew of only two situation reports of the 25<sup>111</sup> of March 2021 and the 19lh of July 2021. He said it was up to the General Manager and General Secretary to terminate the Claimant. - [16] In reexamination, he told us that he did not reply to CEX5 because he was leaving office at the time. He also confirmed REX5 as the Audit Report made on September 30, 2009. - [17] At the close of the Respondent's case, we invited the parties to file written submissions. The Claimant filed his submissions on the 9lh of July 2024. At the time of rendering this award, there is no record of any of the Respondent's submissions.

LDR 02.2022 Av/ard Anthony^ fe Musana J

## **Issue No. <sup>1</sup> Whether the Claimant was an employee of the Respondent?**

## **Claimant's submissions**

**[18]** It was submitted for the Claimant that he was employed on the 21st of April 2005 and confirmed on the 18th of December 2005. That he worked until 9th July 2021. We were asked to disregard the Respondent's contention that the Claimant was working on the firm and retaining milk products as consideration.

## **Determination**

- [19] It is the view of the Court that given the span of time for which the Claimant is seeking relief, the resolution of Issue One has <sup>a</sup> bearing on Issue Two as to whether he was terminated lawfully. Therefore, this issue shall be treated under the timeframes 2005-2006 and 2006-2021. - **[20]** Under Section 2 of the Employment Act **Cap.226(from now EA),** "employee" means any person who has entered into a contract of service or an apprenticeship contract, including, without limitation, any person who is employed by or for the Government of Uganda, including the Uganda Public Service, a local authority or a parastatal organisation but excludes a member of the Uganda Peoples' Defence Forces. The same section defines a "contract of service" as any contract, whether oral or in writing, whether express or implied, where a person agrees to work for an employer in return for remuneration and includes an apprenticeship contract. This Court, in giving meaning to the expression contract of service, cited <sup>a</sup> passage from *Ready Mixed Concrete v Minister ofPensions and National Insurance'* which case has been cited with approval in several cases in this jurisdiction.[1](#page-4-0) <sup>2</sup> In that case, Mackenna J held that;

*"there were three conditions for <sup>a</sup> contract ofservice: first that the employee undertakes to provide his or her own work or skill to the employer in return for a wage or other payment, secondly the employee agrees to <sup>3</sup>be subject to the employer's control to a sufficient degree" to make that other master" and thirdly that the other provisions of the contract are consistent with it being a contract of service in the end"*

- **[21]** The essential elements of an employment relationship are that an employer must offer work to an employee, and an employee agrees to provide his services to an employer in return for wages the employer agrees to pay. In other words, the employment relationship is about an agreement to provide labour services in return for wages. It is work for wages, and the services are provided under the employer's control. - **[22]** In the case before us, the Claimant has two documents supporting the proposition that he was the Respondent's employee. The first was a letter dated the 18lh of December 2005. It - <sup>1</sup> (1967)QBD 433

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<span id="page-4-0"></span><sup>2</sup> See *Kyamukarna v Makeren? University Business School 12020] UGIC 36, Charles Lubowa and Scovia Ayikoru v Victoria Seeds Ltd* LDR 185 of 2016 and other cases.

was addressed to Mr. Charles Sekiwunga, CW2. The letter confirmed the Claimant's employment as a herdsman at UGX 300,000/= per month. The Respondent did not contest the letter. The other letter was dated the 11th of May 2005 and addressed to the Veterinary Department at Kiboga. In this letter, Mr. Vicent Salongo Mubiru, Chairman of the Respondent's Board of Directors, recognised the Claimant as <sup>a</sup> staff member at its Kyankwanzi Ranch. The Claimant also produced CEX 4, which indicated that he received salary advances on 9th July 2005 and 3rd July 2006. The Respondent's witness also testified that the Claimant was its employee for two years, albeit temporarily.

- [23] Therefore, it is not contested that Respondent employed the Claimant in May 2005 as a herdsman at Kyankwanzi Ranch No.2. It is our judgment that the Claimant was the Respondent's employee between 2005 and 2006. This then begs the question of whether the Claimant was an employee of the Respondent until 2021 when he was allegedly terminated. - [24] As pointed out in paragraph [22] above, the existence of the employment relationship is about work and wages. Between 2006 and 2021, the Claimant did not adduce any evidence to show that he was at work and was paid wages for any work. The only proof of payment of any form of wages was in CEX 4, which indicated payment of salary advance in July 2005 and July 2006. After this time frame, there was no other evidence of wages to support the proposition that the Claimant enjoyed an employment relationship with the Respondent. It was RW1's evidence that the Claimant was an employee of the Respondent for less than two years. There was no evidence of any demand for any unpaid salaries beyond the 3rd day of July 2006, when the Claimant alleged he received a salary advance of UGX 150,000/=. The Claimant suggested that CW2 kept promising that he would be paid his salary. It is incredible that CW2, the caretaker of the Respondent's ranch, chose to make a situational report on the 25th of March 2021, sixteen years after the last advance was paid to the Claimant. CW2 in CEX5 made grave observations of encroachment and removal of cows by one of the Respondent's directors. He said that the Respondent could be implicated in cutting off neighbour cows. He wrote about charcoal burning, the destruction of ranch trees, and insecurity at the ranch. He then reminded the Respondent's secretary-manager of the outstanding salary. His second situational report was made on the 19lh of July 2021. There are no situational reports between 2005, the year of his appointment and 2021. - [25] In our estimation, it is not credible that matters as grave as outstanding salaries remained unpaid and unreported for seventeen years. There were no recorded complaints between 2006 and 2021 to make the non-payment a believable proposition. The oral evidence of the Claimant, CW2 and CW3 did not also support the hypothesis that the Claimant remained unpaid in the Respondent's employment for seventeen years. In paragraph 3 of CEX 6, CW2 suggests that the Claimant sought legal attention or action but had not done so concerning his salary for sixteen years. This evidence does not persuade us that the Claimant's worked and was not paid from 2006 until 2021 and did not complain to his employers, not even once. We do not accept this hypothesis and do not believe there was work without pay for over one decade. - **[26]** The Respondent offered the hypothesis that the Claimant was not paid wages or a salary in

 from the Respondent's herd. This Court has not encountered any jurisprudence on the payment of wages in the form of milk. But in an International Union for Conservation of Nature(IUCN): The World Conservation Union Uganda Country Paper, "Pastoralism And Conservation Studies<sup>4</sup>, Dr. Margaret A. Rugadya describes herding labour as part of a reciprocal resource management strategy by which one family provides herding labour to another family in exchange for a milk cow and access to grazing rights or shared pasture. Dr. Rugadya adds that the reciprocal exchanges are non-monetary, and the relationships are not often balanced. This is also true of the employment relationship. It is not balanced because of the conflictual relationship between the holders of capital and the labour providers.<sup>5</sup>

- [27] However, Article 4.1 of the International Labour Organisation Protection of Wages Convention, 1949(No. 95) allows for partial payment of wages in the form of allowances in kind in industries or occupations in which payment in the form of such allowances is customary or desirable because of the nature of the industry or occupation concerned. The Convention calls for measures to ensure that payment in kind is not abused. In the case before us, if it indeed was true that milking rights paid the Claimant, there is no documentation to support the quantum of his wages. The 91<sup>st</sup> Session of the International Labour Conference in 2003<sup>6</sup> reported on the potential abuse of payment of wages in kind. The report covered a general survey of the Wages Convention(No.95) and observed legislation in the Czech Republic, Israel and Slovakia that valued payment in kind to market value. For India, it was reported that retail prices in the nearest market are taken into account when computing the cash value of wages in kind. For Chad and Senegal, the value of one meal was reported to be the equivalent of one hour at the minimum wage. According to the report in Switzerland, the specific value of benefits in kind for domestic sector work was set at 33 CHF per day. For Uganda, the survey observed that under Section 30 of the Employment Decree 1975, the value attributable to allowances and privileges in kind should not exceed the cost to the employer of their provision of wages in kind. - $[28]$ Under Section $40(1)$ and (2), EA, the position is that wages shall be paid in legal tender to the employee by bank cheque, postal order, money order or direct payment to the employee's bank account. The exception to payment of wages in legal tender is provided under Section 40(3)EA, which is in line with the Wages Convention. The provision empowers the Minister to make regulations concerning the partial payment of wages in the form of allowance in kind in industries where such allowances are customary and desirable for the personal use of the employee and his or her family, and the value shall be fair and reasonable. The Employment Regulations, 2011<sup>7</sup> do not provide for payment of allowances and privileges in kind. Therefore, the difficulty that a litigant in an employment dispute might face in propounding payment in kind under the Employment Act Cap. 226 is that the statutory framework for the assessment of such wages is not yet properly in place.

LDR 02.2022 Award Anthony Wa

"a Musana J

<span id="page-6-0"></span><sup>4</sup> https://citeseerx.ist.psy.erlu/document?repid=rep1&type=pull&tdoi=77a1f209a2tj27dc72f3e56458897444ab [bc7621 last accessed 11.12.2024 at 4:06 pm Dr. Rugadya is a scholar on land and natural resources governance focused on rights and practices to advance tenure rights

<span id="page-6-1"></span><sup>&</sup>lt;sup>5</sup> The Honourable Justice Dr. Douglas Singiza opines that expresses a disposition of labour relations in the case of Obed Movernive v Hima Cement Ltd H. C. C. S No. 0311 of 2012 as a relationship between the owners of capital (employers) and the owners of labour (employees) is conflictual. The former is for profit maximization, while the latter is focused on reasonable pay and a good, safe working environment.

<span id="page-6-3"></span><span id="page-6-2"></span>https://webapps.ilo.org/public/libdor/jlo/P/09661/09661(2003-91-1B)346.pdf last accessed 12.12.2024 at 9:58 am <sup>7</sup> S. I 61 of 2011

- **[29]** The above notwithstanding, there was also no credible evidence of payment of the Claimant's wages in kind to enable any assessment of whether the same was fair or reasonable. - **[30]** Do we now accept the hypothesis that the Claimant was listed as a staff creditor in the books of accounts in 2009? CID 4, the Claimant's list of creditors, was said to have been released on the 30lh of September 2009. We indicated that while we admitted the document for identification, we would deal with it in our final award. The Claimant did not explain the source of this document. In our view, the creditor's list is not credible. The oral evidence for the Claimant, particularly CW3, contradicts the evidence in the creditor's list adduced by the Claimant. The Court of Appeal in *Kaqqwa v Musiimenta<sup>8</sup>* where Musota JA, with Bashiraki JA and Madrama JA(as he then was) concurring, stated the general principle of law that there is a distinction between exhibits and articles marked for identification. Identification documents are required to be proven. The admission of the document for identification does not mean that the document is an exhibit. This Court considered the point in *Baliruno v Central Broadcasting Services (CBS)9 10*where we cited *Nsubuqa v Mukundane and Another'<sup>0</sup>* for the proposition that the admission of a document in evidence does not in any way affirm its legality and authenticity. These dicta bind us, and we are unsatisfied that CEX 4 is proven. - [31] In the result, while we find evidence of the Claimant's employment by the Respondent between 2005 and 2006, we cannot find that the Claimant remained a paid or unpaid employee of the Respondent between 2006 and 2021. He did not present any credible evidence that he was working after 2006, that he was paid or that he demanded his salary from anyone between 2006 and 2021. His account that he relied on CW2, who promised that he would be paid, is not believable. That he survived on gratuitous handouts from CW2 for over 15 years is also not plausible. In our judgement Issue No. <sup>1</sup> would be answered in the affirmative from 2005 to 2006 and in the negative between 2006 and 2021.

**Issue Two: Whether the Claimant's contract of employment was unfairly and unlawfully terminated**

## **Claimant's submissions**

**[32]** It was submitted that the Claimant was terminated by telephone on the **9th** of July 2021 at about 6:00 pm. He was not given any reason for termination or an opportunity to defend himself. Counsel for the Claimant cited Section 68(2)EA and *Florence Mufumba v Uganda Development Bank Ltd<sup>11</sup>* in support of the proposition that an employee is entitled to justification for termination. It was also suggested that if the Respondent wished to terminate for misconduct, the Respondent should have complied with Section 66EA. For this proposition, Counsel relied on *Hilda Musinguzi v Stanic Bank Ltd<sup>12</sup>* and the International Labour Organization Convention No. 58. Relying on Sections 58(3), 66, 68, and 69EA, it

<sup>•</sup> L2Q21U6GA73

<sup>8</sup> f20231 UGIC 102

<sup>10</sup>120231 UGCA 98

<sup>&</sup>quot; LDC <sup>138</sup> Of <sup>2014</sup>

<sup>«</sup> SCCANo.5 of 2016

was submitted that the Claimant's termination or dismissal was not only unfair but unlawful. We were asked to answer issue 2 in the affirmative.

## **Determination**

- [33] Either termination or dismissal ends a contract of service. And there tends to be <sup>a</sup> temptation to intersperse a claim by submitting that an employee was either terminated or dismissed. We think such an approach is unhelpful because termination means that the employment contract ends by no fault of an employee. In contrast, dismissal means the employee is discharged for performance or misconduct. In each of these cases, the procedure is different and distinct. Under Section 64EA, a termination, which we have called a no-fault discharge, is by way of an employer discharging the employee on notice or without notice but with payment in lieu of notice[13](#page-8-0), because of the expiry of the contract term or completion of a fixed task, retirement, constructive dismissal or resignation by an employee serving notice. Under Section 65EA, the dismissal of an employee is the employer's discharge of the employment contract for employee performance or underperformance and misconduct. - [34] The first step for an employee seeking relief from this Court for an unfair or unlawful severance of the employment contract must be to establish whether the action is for termination or dismissal. While the rules of procedure before the Industrial Court do not expressly provide for a system of pleadings, this Court leans quite heavily toward the CPR. The Rules of procedure in civil proceedings have the requirement for a system of pleadings that delineates the cause of action. In some instances, such as a claim for misrepresentation, fraud, breach of trust or contract, wilful default, undue influence, negligence or trespass, the provisions of Order 6 Rule 3 CPR require particulars with dates to be stated in the pleadings. In their Treatise on **Civil Procedure and Practice in Uganda,** M. Ssekaana J. and SN Ssekaana do not underestimate the importance of pleadings which define the issues, provide a guide for the proper mode of trial, demonstrate the burden of proof, the range of admissible evidence and the relief that can be granted. - [35] In our view, the approach under the CPR would be helpful for litigants in the matters brought before the Industrial Court. By particularising their claims, litigants would be more precise on whether an employee seeks a determination of unlawful or unfair termination or dismissal but not both or either of them in one claim. In the matter before us there was no instrument of termination. The Claimant's evidence is that he received a telephone call on the 9,h of July 2021 asking him to leave the Respondent's ranch. RW1 testified that the Claimant was employed temporarily and terminated sometime in 2008. He indicated that the letter was somewhere in the office but had not seen it, nor was he responsible for termination. CID <sup>1</sup> was said to be a list of the Respondents' staff creditors as of 30th September 2009. It contained the Claimant's name on page 9 of the Claimants Trial Bundle. Under cross-examination, RW1 called this document a forgery. The law does not take matters of forgery lightly. Forgery is a felony under Section 324 of the Penal Code Act Cap. 128, attracting between three years as a general punishment and life imprisonment for

LDR 02.2022 Award AnlhonyV££f reMusana J

<span id="page-8-0"></span><sup>13</sup> Stanbic Bank (Uganda) Limited v Nassanga (Civil Appeal 182 of 2021) (2023) UGCA 342 (15 November 2023) nf

## Page 10 of 12

forgery of wills and certificates of land. In civil proceedings in *Premier Commodities Uganda Limited v Kiir For Services & Construction Co. Limited and Others'<sup>4</sup>* Mubiru J observes

"Forgery is making, using, altering, or possessing <sup>a</sup> false document with the intent to commit fraud. Forgery can be the creation of a false document, or changing an authentic one. The onus to prove forgery is on the party alleging that a document was forged. Where a party challenges the date on which a document (or an entry in it) was created, or the author, or any other feature such as to require <sup>a</sup> witness to be called, that challenge must be raised in ' /; good time in advance of the trial (that is, in time for <sup>a</sup> witness to be called by the other party) and the grounds of challenge clearly spelled out in the pleadings Inferences of fraud or forgery cannot be reached by conjecture, and without a reasonable foundation for an inference to be drawn, one cannot elevate the rejection of the plaintiff's evidence or the plaintiff's case or failure to dispel suspicious circumstances as proof of such serious allegations."

- [36] By this decision, what emerges is that a party to a proceeding alleging forgery would be required to do more than plead forgery. His Lordship adds that the standard of proof required is lower than that of beyond reasonable doubt, which is the standard in criminal trials but higher than it would be if the preponderance of the evidence rule applied ordinarily in civil trials. - [37] We think this threshold applies to trials of employment disputes because while Section 19 of the Labour Disputes(Arbitration and Settlement) Act Cap. 227 does not enforce the rules of evidence in civil proceedings, and under Rule 12 of the Labour Disputes(Arbitration and Settlement) (Industrial Court Procedure) Rules, 2012, all evidence must be given on oath or affirmation and documentary evidence shall be original or certified, this Court has applied rules of civil procedure where there is a lacuna in the Courts rules of procedure.[\\*](#page-9-0) <sup>15</sup> - [38] In the instant case, in the Respondent's answer to the claim, the Respondent pleaded that CEX1, CEX2, CEX3, CEX4 and CID <sup>1</sup> were forgeries and that the Claimant had inserted his name as a creditor. We were not presented with the original for the purpose of comparison, and neither was a witness called to demonstrate that Gideon Kyeyune's signature on CID <sup>1</sup> was forged. In our view, the Respondent has not proven the alleged forgeries to the required standard of proof, and we reject the hypothesis that the Claimant was culpable for forgery. - [39] While we reject the Respondent's hypothesis of forgery, we do not accept the Claimant's account that he was an employee of the Respondent in 2009, given our finding in issue one. There is no evidence that he was working for the Respondent after 2006. CW2's situational reports were made in 2021, and there is no report in the intervening period to support the conclusion that the Claimant was the Respondent's employee between 2006 and 2021. The last evidence of the Claimant's receipt of wages is the advance of 3rd of July 2006. Under Section 30EA, the inability to pay wages may lead to a declaration of termination of a contract of service by a labour officer, but the Claimant did not complain

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M120211 UGComroC 140

<span id="page-9-0"></span><sup>15</sup> See Autotune Limited v Swaldo Barozi & Ors LDMA 029 of 2022

of non-payment of wages from 2006 until the fateful phone call. CW2, who testified on his behalf as caretaker of the ranch, did not also forward any complaints of non-payment of wages by the Claimant. The concession by CW3 under cross-examination that when he signed the audit report on 31s1 December 2009, the Claimant's name did not appear as creditor cements the view that the Claimant was not an employee of the Respondent in 2009. For these reasons, we cannot accept the Claimant's version of events that he was an employee, and therefore, if he was not employed, it follows that he could not have been terminated by telephone on the 9th of July 2021.

**[40]** Mr. Ndegho cited *Musinguzi* for the dicta that the Court cannot fetter the employer's right to terminate an employment contract provided that the employer follows procedure. That is the correct restatement of the law and in *Akewa v Loving, one by one Ministries'<sup>6</sup> we* held that termination must follow procedure; otherwise, it is unlawful. However, in the present case, having found that the Claimant was not an employee of the Respondent, it would be unnecessary to consider the lawfulness of any alleged termination.

*Issue II: Whether there are any other remedies available to the Parties?*

- **[41]** Having found, as we have regarding issues one and two, the Claimant is not entitled to any remedies. His claim is dismissed. As the Respondent did not seek costs of the claim, none are awarded. - **[42]** While we found that the Claimant was an employee of the Respondent between 2005 and 2006, the difficulty with his claim is that it is barred by the law of limitation. This Court has in *Muwanquzi v Uganda Printing and Publishing Corporation[16](#page-10-0)<sup>7</sup>* held that claims in employment disputes must be brought before a labour officer within six years from the date the cause of action arose. In the instant case, the claim for unpaid salaries for the year 2006 would have to have been filed by 2012, barring any disabilities.[18](#page-10-1) **Conclusion and final orders** - **[43]** In the final analysis, we find that the Respondent did not employ Claimant between 2006 and 2021. His claim is, therefore, dismissed with no order as to costs.

## *Obiter*

**[44]** Before taking leave of this matter, the Uganda Bureau of Statistics(UBOS) National Labour Force Survey of 2021[19](#page-10-2) Uganda's working age group is 23.5 million, with a working population of 20.5 million. In terms of unpaid work(work for self-benefit or the benefit of others without pay), 7 out of every ten persons aged 5 years and above in rural Uganda are engaged in unpaid work where wages have been foregone. A large proportion of the population is in unpaid work but may have customary allowances in kind. The regulation of partial payments of allowances in kind to ensure fairness would be helpful to this workforce.

<span id="page-10-2"></span><sup>19</sup> hitDs://v/ebaDDS.ilo.orq/stjrvevLib/index.nhD/cataloq/8226 last accessed 12.12.2024 at 2:40 pm

LDR 02.2022 As reMusana J

<sup>16</sup> (20241 UGIC 54

<span id="page-10-0"></span><sup>17</sup> (20231 UGIC 63

<span id="page-10-1"></span><sup>18</sup> Section 3 of Limitation Act Cap. 290 limits an action founded on contract to six years from the date the cause of action arose.

**13th December 2024**

**10.32 a.m.**

**Appearances:**

**1. For the Claimant:**

**2. Respondent absent:**

Court Clerk: **Mr. Samuel Mukiza**

**Mr. Muzamii Ndhego**

**Mr. Ndhego** Matter for award, and <sup>I</sup> am ready to receive it.

**Court:** Award handed down in open Court.