Ninyenda v Makerere University (Labour Dispute Miscellaneous Application 151 of 2021) [2022] UGIC 79 (18 March 2022)

# **THE REPUBLIC OF UGANDA IN THE INDUSTRIAL COURT OF UGANDA AT KAMPALA M1SC. APPLN. NO. 151/2021 (ARISING FROM LABOUR DISPUTE REFERENCE NO. 050 OF 2019)**

## **BETWEEN**

**FRANCIS NINYENDA APPLICANT**

## **VERSUS**

**MAKERERE UNIVERSITY RESPONDENT**

#### **BEFORE**

**''i**

**y**

1. Hon. Head Judge Asaph Ruhinda Ntengye

#### **PANELISTS**

1. Mr. Micheal Matovu

2. Ms. Adrine Namara

3. Ms. Suzan Nabirye

#### **RULING**

This is an application for review of this court's decision in Labour Dispute Reference No. 050/2019 on a preliminary objection when the court upheld the objection and dismissed the Labour Dispute Claim.

The application is brought under **Section 17(1) of the Labour Disputes (Arbitration and Settlement) Act 2006, Order 52(1) and (3) of the Civil Procedure Rules.**

The application is supported by an affidavit deposed to by the applicant and an affidavit in reply was filed deposed to by one Yusuf Kiranda, the University Secretary of the respondent.

#### **Representation**

The applicant was represented by Mr. Jonan Rwambuka of Rwambuka & Co. Advocates while the Respondent was represented by Mr. Hudson Musoke of Makerere University Directorate of legal affairs.

Both counsel filed written submissions.

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# **Summary of submi**s**s**i**ons**

Counsel for the applicant submitted that there was an error on the face of the record because the court failed to refer the matter to the Staff Appeals Tribunal as the respondent had prayed for, the court having upheld the objection but instead dismissed it.

In reply counsel for the respondent contended that the application should not succeed because it seeks this court to reverse its decision simply because of what the applicant deems to be <sup>a</sup> *"wrong"* and *"erroneous"* conclusion in discussing the Labour Dispute Reference 50/2019.

In counsel's view the application is incompetent. He argued that this court found and held that the filing of the Claim, by the applicant, was unjustified rendering the claim incompetent as it was in the High Court and naturally dismissed it, which did not constitute an error on the face of the record.

#### **Decision of Court**

There is no doubt that in raising a Preliminary objection in Labour Dispute Reference 50/2019, the respondent argued that the applicant should have completed the administrative process by appealing to the University staff Tribunal and asked the court to refer the dispute back to the tribunal. The same matter had been, on judicial review found *"Incompetent and not properly before the courtforfailure and refusal of the applicant to exhaust the alternative remedy of appeal to the University Tribunal "*

**In** dismissing the claim this court stated

*"We agree with the respondent that the Claimant should have complied with the decision in Misc. Cause 413/2017 andfiled an appeal to the staff Tribunal of the Respondent. Indeed, wefind filing the claim in this court was an unjustified short cut as counselfor the respondent put it. Accordingly, the preliminary objection is upheld and Labour Dispute Reference 50/2019 is hereby dismissed for being premature and incompetent as it was before the High Court."*

Counsel for the respondent does not deny that his prayer in Labour Dispute Reference 50/2019 as he raised the Preliminary Objection was for the court to

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halt the proceedings and refer the matter to staff Appeals Tribunal. The interest of the respondent was therefore that the administrative systems of the Respondent institution be completed before the matter was brought to the courts of law.

Consequently, we agree with counsel for the applicant that it was an error on the face of the record for this court not to refer the dispute to the staff appeals tribunal as prayed for by the respondent. Accordingly the application is allowed, the order dismissing the Labour Dispute Reference 50/2019 is hereby set aside as having appeared as an error on the face of the record. Instead an order halting proceedings in this court is issued as the dispute is referred to the Respondent staff Appeals tribunal as prayed for in Labour Dispute Reference 50/2019.

No order as to costs is made.

# Delivered & Signed By:

1. The Hon. Head Judge, Ruhinda Asaph Ntengye

#### Panelists

1. Ms. Adrine Namara 2. Ms. Susan Nabirye 3. Mr. Micheal Matovu

Dated: 18/03/2022

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