Wakilii

Prof. Syed Huq v Islamic University in Kampala (Civil Appeal 47 of 1995)

Supreme Court · [1997] UGSC 3 · 1997 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Civil appeal from a High Court judgment dismissing a suit for a declaration of unlawful removal from office and a permanent injunction
Decision
Appeal dismissed; the High Court's finding that the employment contract was unenforceable was upheld

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Treatment recorded in citing cases followed in 2 · distinguished in 2 Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Supreme Court dismissed the appeal. On the preliminary objection, a respondent cannot challenge the competence of an appeal without the leave required by rule 101(b), which had not been sought. On the merits, the appellant's contract as Rector was a foreign contract of service that was unenforceable because it had not been approved or attested under section 13 of the Employment Decree 1975. The Islamic University in Uganda was not a 'government undertaking' within section 5(3), so the exemption did not apply. Although the respondent was estopped from denying the appointment, the contract remained unenforceable for want of attestation. The appeal was dismissed with costs.

Facts

The appellant, a Professor of Science and Physics, was employed by the respondent Islamic University in Uganda, first as Professor and then appointed Rector from 1 January 1991. He worked as Rector for about three years before his services were terminated. He sued in the High Court seeking a declaration that his removal was unlawful, that he remained an employee, and a permanent injunction restraining his removal before the expiry of his term. The respondent admitted appointing him as Rector but pleaded that his services were lawfully terminated for mismanagement. The University had been established by an agreement between the Government of Uganda and the Organisation of the Islamic Conference, as a corporation, with a 16-member Council of whom only 5 were government appointees, and with a Rector not appointed by the Government. The High Court held the Council lacked a quorum when it appointed him, so the University had no capacity to contract, and further that any contract was a foreign contract of service unenforceable under section 13 of the Employment Decree 1975 for want of attestation. The suit was dismissed and the appellant appealed.

Issues

  1. Whether the respondent could raise a preliminary objection to the competence of the appeal without leave of the Court under rule 101(b) of the Rules of the Court.
  2. Whether documents (including the decree) prepared or extracted by advocates who lacked a valid practising certificate are valid.
  3. Whether there was an enforceable contract of employment between the appellant and the respondent.
  4. Whether the contract was a foreign contract of service unenforceable for want of approval or attestation under section 13 of the Employment Decree 1975.
  5. Whether the respondent was a 'government undertaking' exempt from section 13 by virtue of section 5(3) of the Employment Decree 1975.
  6. Whether the respondent was estopped from denying the validity of the appellant's appointment as Rector.

Orders

  • Appeal dismissed with costs to the respondent.

Key headnotes

Employment & Labour — Foreign Contract of Service — Enforceability without Attestation under s.13 Employment Decree 1975
A foreign contract of service is not enforceable unless it has been approved or attested in accordance with section 13 of the Employment Decree 1975.
Employment & Labour — Statutory Exemption — Meaning of 'Government Undertaking' under s.5(3) Employment Decree 1975
An institution is not a 'government undertaking' exempt under section 5(3) of the Employment Decree merely because it was established by an agreement to which the Government is a party; where the Government appoints only a minority of the governing body and does not appoint the chief executive, the institution is a separate legal person and not a government undertaking.
Contract Law — Estoppel — Party Cannot Approbate and Reprobate
A party who admits in its pleadings that it employed the other party cannot at the same time deny that the other party was properly appointed; it is not at liberty to blow hot and cold by both asserting and denying the existence of the contract.
Civil Procedure — Practising Certificates — Validity of Documents Filed during and after the Period of Grace
An advocate whose practising certificate has expired may practise during the two-month period of grace in January and February, and documents he signs or files in that period are valid, but he cannot recover his costs through the courts for work done in that period; the majority held that documents prepared by an advocate who practises after the period of grace are invalid and of no legal effect because courts will not condone an illegality.
Civil Procedure — Appeals — Objection to Competence Requires Leave under Rule 101(b)
A respondent may not, without the leave of the Court, raise at the hearing of an appeal an objection to the competence of the appeal which might have been raised by application under rule 80; where no such leave is sought or obtained, the objection cannot be entertained.

Legislation cited (18)

  • Employment Decree 1975 s.5(3)
  • Employment Decree 1975 s.10
  • Employment Decree 1975 s.13
  • Employment Decree 1975 s.13(1)(a)
  • Employment Decree 1975 s.66
  • Advocates Act 1970 s.10
  • Advocates Act 1970 s.14(1)
  • Advocates Act 1970 s.15
  • Advocates Act 1970 s.18
  • Advocates Act 1970 s.63(1)
  • Advocates Act 1970 s.68
  • Commissioners for Oaths (Advocates) Act s.2
  • Civil Procedure Rules Order 3 r.1
  • Constitution Article 126(2)(e)
  • Rules of the Supreme Court rule 80
  • Rules of the Supreme Court rule 81
  • Rules of the Supreme Court rule 85
  • Rules of the Supreme Court rule 101(b)

Cases cited (11)

  • Alfred Olwora v Uganda Central Cooperative Union Ltd (Civil Appeal No. 25 of 1992)
  • Bakunda Darlington v Dr. Kinyatta Stanley (Civil Appeal No. 27 of 1997)
  • Kabogere Coffee Factory Ltd v Hajji Twaibu Kigongo (Civil Application No. 10 of 1993)
  • In Re Lukeera & Co. Advocates (Miscellaneous Cause No. 76 of 1973)
  • Evaristo Mugabi v Attorney General (HCCS No. 109 of 1971)
  • Jesse Gulyetonda v Henry Muganwa Kajura (Election Petition No. 19 of 1996)
  • G.T. Kiyamba Kaggwa v Rasool Khan (Miscellaneous Civil Application No. 223 of 1996)
  • Makula International Ltd v Cardinal Nsubuga [1982] HCB 11
  • Sparling v Brereton (1866) LR 2 Eq 64
  • Holgate v Slight (1852) 21 LJ QB 74
  • Richards v Botock (1914) 31 TLR 70
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.