Tweyambe v Kampala Capital City Authority (Labour Dispute Miscellaneous Application 21 of 2022) [2022] UGIC 54 (19 August 2022)

# **THE REPUBLIC OF UGANDA**

### **IN THE INDUSTRIAL COURT OF UGANDA AT KAMPALA**

**LABOUR DISPUTE: MISCELLANOUS APPLICATION No.21 OF 2022**

**ARISING FROM LABOUR DISPUTE REFERENCE NO. 133 OF 2021**

**<sup>5</sup> TWEYAMBE EMMY APPLICANT**

# **VERSUS**

**KAMPALA CAPITAL CITY AUTHORITY RESPONDENT**

**BEFORE:**

**io THE HON. AG. HEAD JUDGE, LINDA LILLIAN TUMUSHME MUGISHA**

**PANELISTS**

**1. MS. JULIAN NYACHWO**

**2. MR. KATENDE PATRICK**

**<sup>15</sup> 3. MR. BWIRE JOHN ABRAHAM**

#### **RULING**

This application is brought under Order 52 rules 1,2 & <sup>3</sup> of the Civil Procedure Rules and Section 34 & 98 ofthe Civil Procedure Act, seeking orders that:

The Judgment delivered on Friday September 3rd 2021 by this **20** Varied and set Aside specifically on underpayment of salary and payment of Salary Arrears. (a) honourable court in respect ofLabour Dispute Reference No. 146 of2016 arising from MGLSD No. 417 of 2016 Tweryambe Emmy VS KCCA be reviewed,

**<sup>25</sup>** (b) Costs be provided for.

# **The Applicant's case:**

**35**

The Applicant's case, as contained in the notice of motion and supporting Affidavit deponed by Tweyambe Emmy, the Applicant, is summarized as follows:

**30** a) That ifthis court denied the Applicant payment based on the Respondents Salary structure on the ground that, the Applicant did not attach the said salary structures, the Applicant will suffer irreparable damage.

b) That the said salary structures have always been firmly in the hands and control ofthe Respondent who could not allow the Claimant to have a look at or get a copy ofthe same.

c) That in the alternative but without prejudice, this court should compel the Respondent to produce the required salary structures for this court to use.

d) That there is evidence on the record that the Respondent caused irresistible hostility to the Claimant.

**40** e) That the Respondent caused grave vulnerability to the Claimant that has to date greatly reduced his self-esteem.

*f)* That in respect to the Salary Arrears which this Court denied him on ground that no attachment ofSalary structures was made, was an error and is regrettable.

**45** g) That the discrepancy between the figure which is on court record and the one on the Claim form was an addition error on the part ofthe Claimant.

### **The Respondent's Case**

The Respondent's case as set out in the Affidavit in reply deponed by Janet Luzinda, the Manager Learning and Development in the Directorate of

Administration and Human Resource of the Respondent, is summarized as follows:

That the Applicants application is incompetent and aa abuse of Court a) process for

1. A Misc. Cause cannot arise from another suit.

2. No new evidence has been produced.

**50**

**65**

**<sup>55</sup>** 3. It erroneously seeks both discovery and review at the same time.

b) That Salary Scales for all Public Servants in Uganda including teachers are determined by the Ministry of Public Service.

**60** c) That the salary scale is a public Document and was available to the Applicant before and during hearing ofLDR 146 of 2016.

d) That the Applicant did not exercise due diligence to request for the said Salary Scales from Ministry ofPublic Service and adduce them in support ofhis Claim during the Hearing ofLabour Dispute 146/2016.

e) That this court rightly declined to award the Applicant an Order for payment of Salary Under the alleged new salary structure under the Kampala Capital City Authority Act 2010 without basis.

f) That the Annexures to the Application marked "Applicant 11''which the Applicant intends to rely on are not salary scales but Teacher Residual Salary Arrears Claims forms.

**70** g) That it is in the interest ofjustice and equity that court exercises its inherent power and discretion to dismiss this application.

representation

The Applicant was represented by himself and the Respondent by Byaruhanga Holding brieffor David Oyo ofM/s Department oflegal Affairs, Kampala Capital City Authority, Kampala.

#### **SUBMISSIONS**

We have carefully perused the Notice of Motion together with the affidavits in support and in opposition ofthe Application and the submissions ofboth Counsel and find as follows:

#### **80 DECISION OF COURT**

Section 17 ofthe LADASA Act 2006 as amended provides that;

'Where any question arises as to the interpretation of any Award ofthe Industrial Court within twenty-one days from the effective date ofthe Award or where new and relevant facts concerning the dispute materialize, a party to the Award may apply to the Industrial Court to review its decision on a question ofInterpretation or in the light ofthe new facts."

Order 46 rule <sup>1</sup> ofthe Civil Procedure Rules on the other hand provides that, any person considering himself or herself aggrieved

**90** a) By a decree or order for which an appeal is allowed but from which no appeal has been preferred or

b) By decree or order from which no appeal is allowed and who from discovery of new and important matter or evidence which after the exercise of due diligence was not within his or her knowledge or could not be produced by him /her at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the judgment may apply to the court which passed the decree or order for review.

**85**

**75**

It is the law that for a court to be moved to review its decree or order the Applicant must prove that:

100 a) He or she had discovered new and important matter of evidence which in spite of the exercise of due diligence was not within his knowledge at the time the judgment or decree was entered

b) There is an error on the face ofthe record, the error must be manifest and clear and no court would remit such an error to remain on the record such as a wrong application ofthe law or failure to apply the appropriate law.

That there is sufficient cause to warrant the review ofthe decree similar to c) discovery of new evidence or an error apparent on the record.

After carefully perusing the application, the affidavits in support and in opposition and both Counsels submissions, we find that whereas the Applicant seeks Court to review its decision in LDR No. 146/2016, on the ground that this court failed to grant the Applicant salary arrears as to make a declaration on underpayment ofsalary.

By praying to court to compel the Respondent to furnish him with the copies of the Salary structure ,this would require Court to make an order for discovery as opposed to review and as stated by Counsel for the Respondent this does not fall within the requirement s for review as provided under section 17 ofthe LADASA (Amendment Act, 2021) and order 46 ofthe CPR( supra).

Further the by raising matters regarding, which the Court already considered in its award, would it as an appellant Court to review its decision in Labour Dispute Reference No. 146 of 2016. This is untenable in law because such a review cold lead to the Court overturning its decision.

It is a settled matter that a review of a judgment or award is strictly meant to correct self- evident errors or omissions on the part ofthe Court, because once it

no

issues a decree or order, it is rendered functus officio. A review is therefore an exception, intended to correct apparent errors and not to change the decision of the court as the Appliacant would like s to do. As stated in Lalwak Alex vs Opio Mark miscn Aplin. No 0058/2016, "... if the court reached a wrong conclusion of law, in circumstances ofthat nature, it could be a good ground of appeal but not for review otherwise court would be sitting in appeal on its own judgement which is not permissible in law..."

We reiterate, that the grounds as framed by the Applicant are asking court to sit as an appellant Court to reverse its decision on the issue regarding under payment ofsalary and payment ofsalary arrears because it was the Claimant himselfwho omitted to file evidence ofthe salary structures, an order for review would only arise ifthe mistake was occasioned by courts failure to consider the said structures if they had been adduced as evidence, or if he had proof that at at the commencement of the hearing he had done due diligence to get them from the Respondent and he failed and he only found them as important evidence to be considered as the basis for the review. In this case he has not shown that he found the structures and is only asking court to compel the Respondent this late to provide the same.

The Application therefore seeks Court to reverse its decision and not to correct the errors or omissions apparent on the face record, but to compel the Respondent to provide evidence in a matter which is already concluded. This is not acceptable in law, as it deviates from the requirements for review as already discussed.

Having rendered its decision, this Court is functus officio and the only remedy in this case for the Applicant to appeal and apply to adduce additional evidence on Appeal.

150 It is apparent on the face ofthe record that Court made its decision cognisant of the absence ofthe said structures when it state that:

155 structure and the KCCA structure which would enable the Court to determine "The Court was not furnished with a copy of the Respondent's salaiy structure to enable us determine this issue. Merely stating that the Claimant was not paid in line with the structure was not sufficient in the absence of both the KCC whether there was a difference between what he was receiving under KCC and what pertains in the KCCA structure. Similarly merely stating that, the Respondent depended on the structure established by the Ministry of Public Service was not sufficient to determine whether the Claimant was actually being paid based ofthe structure approved by Ministry of Public Service as provided under section 25(4) ofthe KCCA Act 2010, or not. In the circumstances we have no basis to grant this claim. It is therefore, denied....".

In the circumstances this Application has no merit. It is dismissed with no order as to costs.

165 Delivered and signed by:

)

**THE HON. AG. HEAD JUDGE, LINDA LILLIAN TUMUSIIME MUGISHA**

**PANELISTS**

**<sup>1</sup> MS. JULIAN NYACHWO**

170 **2. MR. KATENDE PATRICK**

**3. MR. BWIRE JOHN ABRAHAM**

**DATE: 19/08/2022**