THE REPUBLIC OF UGANDA
IN THE INDUSTRIAL COURT OF UGANDA AT KAMPALA
MISC. APPL. NO. 130 OF 2020
(ARISING FROM M.A 235/2019)
(FROM NJERU MUNICIPAL LABOUR COMPLAINT 44/2018)
NILE BREWERIES LTD ………………………………….…….……………. APPLICANT
1. Hon. Chief Judge Ruhinda Asaph Ntengye
2. Hon. Lady Justice Lillian Linda Tumusiime Mugisha
- Mr. Ebyau Fidel
- Ms. Harriet Mugambwa Nganzi
- Mr. F. X. Mubuuke
This is an application by Notice of Motion brought under Rule 7(1) 8(2) of the Labour Dispute (Arbitration and Settlement) (Industrial Court Procedure) Rules 2012, Section 79(1), Section 98 of the Civil Procedure Act and Order 51 rule 1, Civil Procedure Rules.
The application seeks orders of this court that the applicant be granted extension of time within which to file a Notice of Appeal and that costs of the application be provided for.
The applicant was represented by Mr. Davis Ndyomugabe & Co. Advocates while the respondent was represented by M/s. Mukolo & Co. Advocates. The application was supported by an affidavit sworn by one Faith Mirembe, Company Secretary and Head of Legal department of the applicant.
The affidavit was to the effect that the Judgement of the labour officer was served onto the applicant’s former lawyers who tried to lodge an appeal but the same was rejected by the registry subsequent to which execution proceedings ensued against the applicant. The affidavit was also to the effect that failure to lodge a notice of appeal in time was due to the former lawyer’s inadvertence which ought not to be visited on the applicant.
The respondent filed an affidavit in reply which was to the effect that it was not due to negligence of former counsel that the notice of appeal was not lodged in time but rather it was because the former counsel preferred challenging the judgement through an application for review before another labour officer who later purported to set aside the judgement of his colleague. The affidavit in reply also states that the labour officer who decided the matter in favor of the respondent had jurisdiction to do so except that he had no jurisdiction under the claim of compensation for injuries sustained while at work and hence the version for wrongful dismissal was enforceable against the applicant.
The facts as inferred from the application itself, and from both affidavits in support and in reply and from the decision of the Registrar of this court are:
The respondent filed a complaint against the applicant for unlawful dismissal and for injuries sustained while at work. The complaint was filed at Njeru before the labour officer who gave an Award of Ugx. 124,412,861/= against the applicant. The applicant through her lawyers contested this Award by Disputing the jurisdiction of the labour officer and asking the Buikwe District Labour Officer to review and set aside the decision of the Njeru Labour officer. The decision was indeed set aside. However, the respondent, ignoring the decision of the Buikwe District labour officer, applied for execution of the Njeru labour officer’s Award and in a ruling on a notice to show cause why execution should not issue, the Registrar of this court found various anomalies and halted execution by referring the matter to this court on 28/9/2020. In the meantime on 21/09/2020 this application was filed.
It was counsel for the applicant’s submission that the former counsel’s failure to file an appeal in this court was an inadvertent negligent act on the part of the lawyer which need not be visited on the applicant. He relied on the authority of Bureau Veritas Uganda Ltd. Vs Dalvin Kamugisha, Labour Dispute M.A 53&64 of 2017. Counsel argued that this application was made promptly and that the delay to file the appeal was not by dilatory conduct of the applicant. He relied on the authority of Hondon Daniel Vs Yolamu Engondi; court of Appeal application 67/2003.
It was further argued by counsel for the applicant that the appeal had high chances of success since the labour officer entertained the matter outside the three months period of termination of the respondent’s employment contrary to Section 71(3) of the Employment Act. It was contended further for the applicant that contrary to Section 78(1) of the Employment Act the Labour Officer awarded compensation beyond his jurisdiction. Counsel pointed out other areas which in his view were a breach of the law by the labour officer in his judgment.
In response to the above submissions, counsel for the respondent argued that the labour officer of Njeru having heard both parties passed an award against which after being aggrieved, counsel for the respondent opted to file a review before the Buikwe District Labour officer, while the applicant applied for execution of the Award of the Njeru Labour Officer. He further argued that the decision of the former lawyers of the applicant to apply for review to a wrong officer instead of lodging an appeal to the Industrial Court was a professional decision done in the interest of their client and did not amount to a negligent omission entitling the applicant to a remedy.
Counsel further submitted that the aspect of review as an aspect taken on behalf of the applicant by former lawyers was concealed in order to mislead this court into believing that the former lawyers simply sat back instead of lodging an appeal for her in the Industrial court. According to counsel, there was no negligence on the part of the applicant’s former counsel, as they took proper steps for their client to have the Awards/decisions reviewed and if the application was to a wrong officer, such was incompetence of counsel not amounting to excusable negligence. Counsel argued that the professional acts or steps taken by the lawyers bind the applicant who instructed them and the applicant should not turn around and plead negligence. Counsel relied on the authority of Mohammad Kasasa Vs Jaspiiar Buyonga Bwogi, Court of Appeal Civil Appeal 42/2008. Also relying on the authority of Kabale Housing Estates Tenants Association Ltd. Vs Kabale Municipal Council, Civil Application 15/2013 counsel argued that the applicant could not blame its former advocates for failing to lodge an appeal within the prescribed time when nothing shows that it instructed them to file the same and that consequently the applicant has to be blamed for negligently failing to instruct its lawyers to lodge the appeal.
DECISION OF COURT
There is no doubt that this court is empowered to extend time within which an appeal or notice of Appeal may be lodged in the court. However this can only be done if sufficient cause is shown and sufficient cause must relate to the inability or failure to take the necessary step within the prescribed time. Citing Mugo and Others Vs Wanjiru and Another (1970) EA 483, the case of Honondi Daniel Vs Yolamu Egondi Court of Appeal, Civil Appeal 67/2003, relied upon by the applicant, pointed out that sufficient time did not relate to taking a wrong decision. The case of Crane Finance Co. Ltd Vs Makerere Properties, Supreme Court Civil Appeal No. of 2001 is authority for the legal proposition that the omission or mistake of counsel ought not 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.
The totality of the above decisions is that where there is no negligence, mistake, omission or oversight on the part of counsel which would work in favor of the applicant, the application must be rejected and that sufficient cause relates to the inability or failure to take a necessary step within the time prescribed.
The case of Honondi Daniel Vs Yolamu Egondi (supra) as it discussed the duty of counsel agreed with the trial Judge in his comparison with the English System which the court stated was in Halsbury’s 4th Edition, Vol. 3(1) Paragraph 518 as:
“Counsel has, with regard to all matters that properly relate to the conduct of the case, unlimited authority to do whatever he considers best for the interest of his client. This authority extends to all matters relating to the actions, including the calling and cross-examination of witnesses, challenging a Juror, deciding what points to take, choosing which of two inconsistent defenses to put forward and even agreeing to a compromise of the action, or to a verdict, order or judgment.”
The Court of Appeal in the above case also quoted, Mulenga JSC (as he then was) in the case of Capt. Philip Ongom Vs Catherine Nyero Owota (SCCA 14/2001 – unreported) as having said in the lead judgment at page 9:
“It is an elementary principle of our legal system, that the acts and omissions of the advocate in the course of the representation bind a litigant who is represented by an advocate. However, in applying that principle, the court must exercise care to avoid abuse of the system and/or unjust or ridiculous results. To my mind, a proper guide in applying the principle is its premise, namely that the advocate’s conduct is the pursuit of and within the scope of what the advocate was engaged to do.”
In the instant case, the applicant having been dissatisfied with the decision of the labour officer of Njeru, instructed counsel to apply for review of the decision before another labour officer. Although under Regulation 8(6) of the Employment Regulations, S.1.2011 No. 61, the Commissioner for labour is empowered to review the decision of a labour officer, such review must be such that it does not reverse substantively the decision of the labour officer since such power is granted to the court by virtue of Section 94 of the Employment Act which provides for the power of the court to confirm, modify or overturn the decision of the labour officer. Even if the Commissioner had such power, it was a wrong decision of counsel to apply for review before a wrong person, a labour officer and not a commissioner. The step taken to overturn the decision was a wrong step before a wrong “tribunal” or wrong “court”. We would like to agree with the respondent that in the absence of any evidence that the applicant specifically instructed counsel to appeal the decision but counsel took a decision to apply for review, the court must take the position that counsel had instructions to apply for review since this was the method (albeit a wrong one) counsel on behalf of the applicant believed would produce the desired result of setting aside the Award. Unfortunately, this was not possible as the Buikwe labour officer had no jurisdiction and consequently the decision of the Njeru labour officer could not be affected by the Order or decision of the Buikwe labour officer. The wrong decision of the lawyers of the applicant to apply for review instead of appealing the decision was the direct cause of the applicant’s failure to take the right step of lodging the appeal within the prescribed time. This scenario is the same as in the case of Honondi Daniel Vs Yolamu Egondi (supra) where Hon. Justice A. E. N. Mpagi Bahigeine J A (as she then was) in her lead judgment said:
“It is enough for me to say that the appellant put himself in the hands of the advocate. In the process the advocate was doing his very best to discharge that mandate. He, however, took a wrong course of action. It was a wrong decision. The appellant was thereby lock, stock and barred bound. It would indeed be absurd or ridiculous that every time an advocate takes a wrong step, thereby losing the case, his client could seek to be exonerated. This is not what litigation is all about.
Counsel applied a wrong strategy as put by the learned judge. No sufficient cause has been show to entitle the appellant to the relief sought.”
We, in the same voice as in the above case, find that the applicant has not given sufficient cause to entitle her to the relief sought. We must say however that the Njeru labour officer was not empowered to entertain a claim under the Workers Compensation Act and that therefore the decision relating to injuries sustained by the complainant is void and is hereby set aside. Under Section 10 of the Workers Compensation Act the labour officer merely receives a report of the accident at work. Under section 12 of the same Law the labour officer approves an agreement between the employer and the employee as to what compensation is payable to the employee after the Employee has attended to medical examination in accordance with section 11 of the same Act. In case of a disagreement as to what compensation is payable the dispute is resolved by a Medical Arbitration Board as per section 13 of the same Act. Section 14(2) provides:
“All claims for compensation under this Act, unless determined by agreement, except of disputes as to the assessment of disability under section 13, arising out of proceedings under this Act shall be determined by the Court, whatever may be the amount involved”
Section 1, the interpretation section of the Workers Compensation Act, defines Court as “a magistrates Court established under the Magistrates Courts Act, presided over by a Chief magistrate or magistrate grade one……….”
A Labour officer not being any of the Judicial officers described in the above interpretation section of the law, had no capacity to entertain the claim and his doing so was an illegality which though brought to the attention of this court at a late stage cannot be ignored, since in accordance with Makula International vs His Eminence Cardinal Nsubuga& Anor,SC. Civil Appeal 4/1981, which relied on Belvoir Finance Co. Ltd vs Harold G. Cole Ltd(1969)2 All E.R 904 at 908, an illegality once brought to the attention of Court , overrides all questions of pleading including any admission made thereon. For this matter, just like the Supreme Court in the above case interfered with the taxing officer’s Order having found the Appeal incompetent, we hereby interfere with the Labour officer’s order made under the Workers Compensation Act even though we find the application with no merit.
For the above reasons, the application is hereby dismissed with no orders as to costs.
Delivered & Signed by:
1. Hon. Chief Judge Ruhinda Asaph Ntengye ………………………
2. Hon. Lady Justice Lillian Linda Tumusiime Mugisha ………………………
- Mr. Ebyau Fidel ………………………
- Ms. Harriet Mugambwa Nganzi ………………………
- Mr. F. X. Mubuuke ………………………