Tumshabe v Normandy Company (Miscellaneous Application 71 of 2023) [2023] UGIC 105 (10 November 2023)

Full Case Text

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## **THE REPUBLIC OF UGANDA IN THE INDUSTRIAL COURT OF UGANDA AT KAMPALA MISCELLANEOUS APPLICATION NO. 71 OF 2023 LABOUR DISPUTE REFERENCE NO. 028/2023** *(Arisingfrom Labour Dispute No. KCCA/CEN/LC/291/2022)*

# **EDISON BARBICTUMUSHABE::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT**

## **VERSUS**

**THE NORMANDY COMPANY:::::::::::::::::::::::::::::::::::::::::::::::::::::;:::::::::::::::::::::::::RESPONDENT**

#### **Before:**

The Hon. Mr. Justice Anthony Wabwire Musana:

## **Panelists:**

- 1. Hon. Adrine Namara, - 2. Hon. Susan Nabirye & - 3. Hon. Michael Matovu.

## **Representation:**

- *1. Mr. Edmund Kyeyune of M/s. Kyeyune, Kasekende Legal Consultants and Advocates for the Applicant.* - *2. Mr. Kenneth Tumusiime of M/s. Greystone Advocates for the Respondent.*

## **RULING**

**[1]** This ruling concerns an application for leave to extend time to file the Applicant/Clairnant's Memorandum of Claim and for provisions of costs. It was brought under Section 98 of the Civil Procedure Act Cap. *71(from now CPA),* Section 33 of the Judicature Act Cap. *13(from now JA),* Rule 6 of the Labour Disputes (Arbitration and Settlement)(lndustrial Court Procedure) Rule, *2012(from now LADASA Rules)* and Order 52 Rules.1 and 3 of the Civil Procedure Rules S.l *71-l(from now CPR).*

## **Background facts**

[2] The Applicant was employed by the Respondent and sustained injuries while in Somalia on attachment to a Host Employer. He was evacuated to Uganda. Due to prolonged illness, he was terminated. He filed a complaint with the labour office and mediation

failing the matter was referred to this Court on the 10th of February 2023. He waited for a medical opinion from the Medical Board, but it was not forthcoming. He filed his Memorandum of Claim on the 3rd of May 2023.

- **[3]** The Applicant filed affidavits in support and rejoinder, whose gist was that he was unable to file his Memorandum of Claim in time because of a delay by the Medical Arbitration Board to give him a response to a referral from the Labour Officer. - [4] The application was not unopposed. In the affidavit in reply, Mr. John Mwambala adverted to the Medical Board's opinion being irrelevant because this Court did not have jurisdiction to hear a claim on Worker's Compensation. - [5] When the matter came up for hearing on the 23rd of August 2023, we invited Counsel to file written submissions. The Court is grateful for the succinct submissions and authorities of law cited.

#### **The Issue**

[6] In their submissions, Counsel framed the question whether the Applicant be granted the Application for extension of time. Properly framed, we think that the question for determination is:

## *Whether timeforfiling the Memorandum of Claim should be extended*

## **The Applicant's Submissions**

[7] The Applicant submitted that under Rule 5(1) of the LADASA Rules, a memorandum shall be filed seven days after receipt of the notice of claim from the Registrar of the Court. It was submitted that Rule 6(1) of the LADASA Rules permitted a party who fails to file documents in time to apply to the Court for an extension of time. The Applicant also relied on Section 98 of the Civil Procedure Act Cap. 71. Counsel also cited the case of **Christopher Gashirabake v Samantha Mwesigye L. D. M. A No. 27 of 2022,** where this Court was regarded as a Court of Equity. We were asked to extend time so as not to debar the innocent litigant from pursuing his rights.

## **Submissions of the Respondent**

[8] Counsel for the Respondent contended that the power to extend time is discretionary and sufficient cause must be shown to invoke the Court's exercise of its discretion. Citing **Hadondi Daniel v Yolam Egondi C. A No. 67 of 2003** for the proposition that sufficient cause must relate to the inability or failure to take a necessary step within the prescribed time, it was submitted that the delay in the long-awaited decision of the Medical Board does not constitute sufficient cause, no medical report was submitted and that the claim

under Workers compensation could not be entertained before this Court. As such, the wrong decision did not amount to sufficient cause.

#### **Applicant's Rejoinder**

[9] Counsel for the Applicant suggested that the Hadondi case was not all-inclusive of the definition of sufficient cause. Counsel cited **Buso Foundation Ltd v Bob Mate Phillips & Anor C. A No. 40 of 2009** and many cases, including **Banco Arabe Espanol v Bank Of Uganda S. C. C. A No. 8 of 1998** for the proposition that lapses of advocates should not be a basis for denying a party an opportunity to be heard. Counsel propounded a thesis that under Section 3 LADASA, all labour disputes are overseen in the first instance by the Labour Officer, including the matters from the Medical Arbitration Board. It was also argued that this was a peculiar matter in that the Magistrates Court does not have territorial jurisdiction over injuries that occurred outside Uganda. We were asked to allow the application.

#### **Decision of the Court.**

- [10] Rule 6(1) of the LADASA Rules provides that a party who fails to file documents within the prescribed time may apply to the Court for an extension of time, and the Court may determine the application as it deems fit. - [11] There is a wealth of jurisprudence on the principle considerations for a grant of extension or enlargement of time. It is also a very well-settled area of law in our jurisdiction. The primary test before time can be enlarged is whether the applicant was prevented by **sufficient cause** from taking a particular step within the time prescribed. [1](#page-2-0) While it was not very apparent in the motion and supporting affidavit, in the submissions in rejoinder, Counsel for the Applicant conceded to a mistake or error on the part of Counsel. This concession cements the proposition that the delay in filing the present application was primarily because Counsel for the Applicant was mistaken in that he required the report of the medical arbitration board before filing the Memorandum of Claim. The blame would, therefore, lie squarely on the shoulders of the Applicant's legal advisors. The Supreme Court of Uganda has held that the omission or mistake of counsel ought not to be visited onto the litigant and that a mistake or error or misunderstanding of the applicant's legal advisor, even though negligent, is acceptable as a ground for allowing an application for extension of time.[2](#page-2-1) The cases of **Florence Nabatanzi v Naome Binsobodde** and **Bishop Jacinto Kibuuka v The Uganda Catholic Lawyers Society & 2 Others** suggest that the inexcusable conduct of the Counsel is a just and fair ground to allow an application for an extension of time.

1 James Bwogi vs KCCA and KDLB. S. C. C. A No 09/2017 Cited In MTN(U)LTD vs Anthony Katamba LDMA No.004/2021 2 Crane Finance Co. Ltd Vs Ma.kerere Properties, Supreme Court Civil Appeal No. of 2001. See also Banco Arabe Espanol Vs Bank of Uganda S. C. C. A No 8 of 1998 and Nicholas Roussos Vs Gulamhussein Habib Virani & Anor, Civil Appeal No. 9 of 1993

[12] As it is commonplace that Counsel made a mistake, we find that the applicant was prevented from filing his Memorandum of Claim in time by sufficient cause. The errors of his legal advisors ought not to be visited on the litigant. In our perusal of the Memorandum of Claim filed in Court on the 9th of May 2023, the Applicant claims compensation for unfair termination. That would be within the province of this Court. As a result, this application succeeds. Time is extended for the filing of the Memorandum of Claim. As Labour Dispute Reference No. 028 of 2023 is already on record, it is hereby validated. There shall be no order as to costs. K

**Signed in Chambers at Kampala this , 2023.**

AnthonyWa] **Judge, Indus** Artre Musana, **jal Court**

- 1. Hon. Adrine Namara, - 2. Hon. Susan Nabirye & - 3. Hon. Micheal Matovu.

**10th November 2023** 10.56 a.m.

#### **Appearances**

- 1. **For the Applicant:** Mr. Frank Lubega - 2. **For the Respondent:** Mr. Keneth Tumusiime - 3. Mr. Joseph Mwambala, Applicants Company Secretary in Court. - 4. Parties in Court

**Court Clerk:** Mr. Samuel Mukiza

**Mr. Frank Lubega:** Matter for ruling, and we are ready to receive it.

**Court:** Ruling delivered in open Court.

Anthony Wabwine Musana, **Judge, InaustriarCourt.**