Star DTU (U) Company Limited v Mutinyu (Labour Dispute Miscellaneous Application 9 of 2023) [2024] UGIC 6 (21 June 2024)


## IN THE INDUSTRIAL COURT OF UGANDA AT MBALE LABOUR DISPUTE MISC. APPLN. NO 009 0F 2023 THE REPUBLIC OF UGANDA

(ARISING FROM NMCCI01V08/2023)

STAR DTU (U) CO. LTD

V

MUTINYU MOSES.

## Before:

The Hon. Justice Linda Lilian Tumusiime Mugisha, Ag. Head Judge

## Panelists

- 1. Hon. Charles Wacha Angulo, - 2. Hon. Rose Gidongo & - 3. Hon. Harriet Mugambwa Ng¡nzi.

## Representation:

- 1. Mr. Moris Emesu holding brief for Mr. Musiime Patrick of M/s. Veritas Advocates for the Applicant - 2. The Respondent was represented by Ms. Nandaah Wamukoota & Co. Advocates, but icounsel did not enter appearance.

## RULING

## Introduction

[1) This Applicant seeks leave of Court to appeal to the Industrial Court against the decision of the Labour Officer Mbale City in Labour Complaint No. MCC01/08/23 on questions of mixed law and facts. No costs were prayed for.


.. APPLICANT

RESPONDENT

The Application is brought under Section 94 of the Employment Act, 2006 and Order 52 Rules 1,2, and 3 of the Civil Procedure Rules s.171-1.

## Background

[2 According to the Applicant, on 3/08/2023, the Respondent filed Labour Complaint No. MCCI01/08/23, before the Labour Officer Mbale City Labour office, against the Applicant, for unfair termination and non-payment of salary. On 2/10/2023, Mr. Mulyanyuma Sam Munyu, the Senior Labour Office Mbale City issued an award in favour of the Respondent and awarded him Ugx.36,686,080/- which cormprised; payment in lieu of 3 months' notice, failure to give a hearing, general damages, compensatory pay, payment of salary arrears of 6 months, NSSF, Severance Pay, claims of overtime, and leave balance among others.',

The Applicant being dissatisfied with the award ldecision of the Senior Labour Officer is desirous of appealing against his award!'According to counsel, the Senior Labour Officer made errors of fact and as \$Uch, the grounds of appeal require review of the law and facts applied by theiLabour, officer.

## The Applicant's case

(3] The Applicant's case as stated'in.the Affidavit deponed by Mr. Mukasa Richard Lawrence, the Applicant's Assistant Customer Care Manager is summarized as follows:

That he wa\_ authoYized.by the Applicant's CEO to depone this Afidavit and state that the Applicant'was dissatisfied with the decision of the Senior Labour Officer, on grounds that' He made errors of fact. The Applicant is therefore desirous of appealing against the decision on matters of fact and mixed law and fact, arising out'of thie Lábour Officer's orders, hence this application.

## The Respondents case

[4) When the matter was mentioned in Court, Counsel for the Applicant informed Court that the Respondent had no intention of opposing the Aplication. However, we found on the record, an Affidavit in opposition fled by the Respondent on 14/11/2024, deponed by the Respondent himselfí, summarized as follows: That the Application for Leave to Appeal and intended Appeal lacks merit and in any case the appeal was already prematurely filed without leave of court, contrary to the law, thus, rendering the Application premature, frivolous and incompetent, bad in law and an abuse of court process. According to him the application is brought in bad faith and is only intended to waste Court's time. He further contends that the intended appeal lacks merit because the Senior Labour Officer arrived at the correct decision. He prayed that the Application be dismissed with costs.

### **Submissions**

- The Respondent did not file any submissions. $[6]$ In his submission for the Applicant, Counsel Emesu Moris, framed the following issues for resolution: - 1. Whether the Application satisfies the requirements set out in Section 94(2) of the Employment Act 2006 and Rule 24 of the Labour Disputes (Arbitration and the Employment ACL 2000 and $\frac{1}{2}$ = 1<br>Settlement) Industrial Court Procedure) rules $2012?$ <sup>(1)</sup> - He cited The Aids Support Organisation (U) Ltd v. Dr. Kennethe Mugisa MA No. 38 $[7]$ of 2022, for the legal proposition that an applicant seeking leave to appeal on matters of facts or mixed law and fact under Section 94(2), must satisfy the court that the questions of fact upon which he or she intends to appeal, form part of the decision of the Labour officer. He also cited Kampala Play House Ltd & 20 Others v Otingo James & 18 Others HCOA No. 0050 of 2018, which was cited in The Aids Support organisation (supra) hand the Black's Dictionary 8<sup>th</sup> edition, which are to the effect that, it is the legal issues and the way they are resolved, unlike issues of fact, where court investigates the truth of the alleged facts or assertions, that determine the course of a case. Thus, in this context, the Labour officer resolves matters of fact while the Industrial court resolves issues of law.<br> $\prod_{\substack{t_1, \ldots, t_k \in \mathbb{N} \\ \alpha \in \mathbb{N}}}$

# Decision of Court $\mathbf{1}_{\mathfrak{l}_{\mathfrak{l}_{\mathfrak{l}_{\mathfrak{l}_{\mathfrak{l}}}}}}$

$[8]$

$\frac{d_{i_1} \cdots d_{i_{i_1} \cdots i_{i_1} \cdots i_{i_1} \cdots i_{i_1} \cdots i_{i_1} \cdots i_{i_1} \cdots i_{i_1} \cdots i_{i_1} \cdots i_{i_1} \cdots i_{i_1} \cdots i_{i_1} \cdots i_{i_1} \cdots i_{i_1} \cdots i_{i_1} \cdots i_{i_1} \cdots i_{i_1} \cdots i_{i_1} \cdots i_{i_1} \cdots i_{i_1} \cdots i_{i_1} \cdots i_{i_1} \cdots i_{i_1} \cdots i_{i_1} \cd$ in the Judgment, which the appellant believes occasioned a miscarriage of justice and wants the Appellate court to resolve by setting aside the judgment. The error or misdirection must be concise and distinct objections relevant to the appeal. Spry V. P. in Sango Bay Estate v Dresdner Bank & Attorney General [1971]EA 17 cited with approval by Kainamura J, in Ekisa George & Ors v Bank Of Africa & Ors Miscn. Appln [2017]UGcommC, 151, guided that, Appeals are granted where there are grounds that merit serious judicial consideration.


- Section 94(2) of the Employment Act, 2006, provides that, "An appeal under the $[9]$ Section shall lie on a question of law and with leave of the Industrial Court, on a question of fact forming part of the decision of the Labour officer." Therefore, an applicant seeking leave to appeal on grounds of fact or mixed law and fact, under section 94 (2) of the Employment Act, must satisfy Court that the question or questions of fact upon which they intend to appeal formed part of the decision of the Labour officer. This Court in Bureau Veritas Uganda Limited y Davlin Kamugisha LD Misc. Appln. No 54 of 2017, was of the considered opinion the framers of section 94(2) (supra), intended to preserve the autonomy of the Labour officer as an arbitrator or adjudicator, as a finder of fact, hence making it mandatory for a party seeking leave to appeal based on matters of fact of of mixed law and fact to first seek leave of court. This is because it is the role of the trial Court or forum to determine facts and for the Appellate court to determine points of law. $\eta_{\rm mult}$ - The distinction between questions of law and fact was well laid down by Mr. Remmy $[10]$ Kasule JA, in Lubanga Jamada v Dr. Ddumba Edward CACA No. 10 of 2011, where <sup>1</sup><sub>1</sup><sub>111</sub></sub> he stated thus:

"An appeal on a point of law arises when the Court, whose decision is being appealed against, made a finding on the case before it but got the relevant law wrong or applied it wrongly in arriving at that finding. The Court reaches a conclusion on the facts, which is outside the range that the said Court would have arrived at, had that Court properly directed itself as to the applicable law.

The error must be because of misapplication or misapprehension of the law. A manifest disregard of the law is an error of law. A question of law is about what the correct legal test is, as contrasted with a question of fact, which is concerned with what took place between the parties to the dispute. When the issue is whether the facts satisfy the legal test, then a question of mixed law and fact arises."

- $q_{i_{l_{i_{l_{i_{l_{l_{l_{l_{l_{l_{l_{l_{l_{l_{l_{l_{l_{l_{$ $[11]$ of appeal is a ground of law or of fact or mixed law and fact the Court of Appeal must consider the following: - 1. *"...lt must decide first as a matter of law whether the trial court failed* to make use of the advantage, it has of seeing witnesses before proceeding to substitute as a matter of fact its own finding made on printed evidence, and it is only where there is a wrong application of

such facts that a court of appeal can interfere.

- 2. Where the court of appeal finds that a trial Court correctly applied the facts it does not interfere. - 3. Where the trail Court fails to apply the facts which it found correctly to the circumstances of the case, there is an appeal to the court of appeal which alleges a misdirection in the exercise of the application by the trail Court, the ground of appeal alleging misdirection is a ground of law and not of fact. - 4. Where the Court of appeal finds such an application to be wrong and decides to make its own findings, such findings made by the court of appeal are issues of fact and not law. - 5. Where the Court of appeal interferes and there is a further appeal to a higher Court of appeal on the application of facts, the ground of appeal alleging such misdirection by the lower court of appeal is a $\eta_{\eta_{\text{full}}}$ ground of law and not fact. - 6. Where the Court is being invited to investigate the existence of facts or otherwise of certain facts upon which an award of damages to the respondent was based such a ground is a question of mixed law and fact..." - In the instant Application, the intended memorandum of appeal attached to the $[12]$ application contains 9 grounds of appeal, 4 of which; grounds 1,2 3 and 9 are framed as questions of law and fact and mixed law and fact, as follows: - 1. The Senior Labour officer erred in law and fact when he proceeded to act on notification of the complaint without a supporting affidavit verifying /substantiating the Respondent's claim prejudicing the applicant's defense thus occasioning a miscarriage of justice. - The Senior Labour officer erred in law and fact when he refused to stay Mbale 2. The Senior Labour Office Complaint ref. No MCC/01/08/23, pending the hearing and City Labour Office Complaint ref. No MCC/01/08/23, pending the hearing and **City Labour Office Complaint ret. IND INDUCTOR COMPLETED AT SET UP:** $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ arising from Mbale CRB No. 466 of 2023, Uganda Vs Mutinyu Moses. - 3. The Senior Labour officer erred in law and fact when he misconstrued the evidence on the record and came to a wrong conclusion that the Respondent was unfairly terminated whereas not. - 7. The Senior Labour officer erred in law and fact when he failed to evaluate evidence on record as a whole that the Respondent had


failed to account for the appellant's property thereby occasioning a miscarriage of justice to the appellant…"

- [13] Grounds 1 and 2 relate to matters preliminary to the hearing before the Labour officer and therefore do not form part of the Labour of his decision. In the circumstances, they do not merit any consideration by this court since they do not set forth any objection arising out of the Senior Labour Officer's decision. On that basis, they cannot stand as grounds for appeal. - [14] Grounds 3 and 9 relate to the analysis of facts and evaluation of evidence, which resulted in the declarations and awards made by the Senior Labour officer. The 2 grounds would therefore merit the Court's further consideration, as to the correctness of the declarations and awards resulting from the finding of facts. For the above reasons, leave to appeal on grounds 1 and 2 is denied. Leave to appeal on grounds 3 and 9 is allowed. - This application for leave is to appeal the decision of Mr. Mulyanyuma $[15]$ Sam Munyu, the Senior Labour Office Mbale City in Complaint No. MCC/01/08/23 partially succeeds.

#### Orders:

- 1. The Applicant is denied leave to appeal on questions of facts and mixed law and fact on grounds 1 and 2 as set out in the intended memorandum of appeal. - The Applicant is granted leave to appeal on questions of facts and mixed law and fact on grounds 3 and 9 as set out in the intended - $\frac{1}{1}$ memorandum of appeal.<br> $\frac{1}{1}$ memorandum of appeal.<br> $\frac{1}{1}$ memorandum of appeal.<br> $\frac{1}{1}$ memorandum of appeal.<br> $\frac{1}{1}$ memorandum of appeal. memorandum of appeal together with brief submissions of not more than 5 pages, by 5.00 pm, 24/06/2024, and serve it on the Respondent by 5.00 pm, 25/06/2024. - 4. Parties shall appear before the court on 26/06/2024 for further directions. - 5. No order as to Costs is made.

Signed in Chambers at Mbale this 21<sup>st</sup> day of June 2024.

Hon. Justice Linda Lillian Tumusiime Mugisha, Ag. Head Judge

## **The Panelists Agree:**

- 1. Hon. Charles Wacha Angulo - 2. Hon. Rose Gidongo - 3. Hon. Harriet Mugambwa Nganzi

21<sup>st</sup> June 2024

9:30 am

**AND AND AND AND AND AND AND AND AND AND**

#### **Appearances**

- Mr. Muslime Patrick. 1. For the Applicant: - 2. Representative for the Applicant Mr. Richard Mukasa. - $\dot{M}_{\text{free}}^{\text{H}}$ Watulo Cornelius holding brief for Counsel 3. For the Respondent Walera John - $\eta_{\eta_{\eta_{\eta_1}}}$ $^{i_{l_{\tilde{l}_{\tilde{l}_{\tilde{l}_{\tilde{l}_{\tilde{l}_{\tilde{l}_{\tilde{l}_{\tilde{l}}}}}}}}}}$ - Mr. Christopher Lwebuga. Court Clerk;

$\mathbf{u}_{\mathbf{I}_{\mathbf{I}_{\mathbf{I}_{1}}}}$ Delivered and signed by

$\mathbf{H}_{\mathbf{I}_{1_{l_{i_{l_{i_{l_{l_{l_{l_{l_{l_{l_{l_{l_{l_{l_{l_{l_{l_{l_{$ $\mathfrak{t}_{\mathfrak{l}_{\mathfrak{l}_{\mathfrak{l}_{\mathfrak{h}}}}}}$