Wakilii

David May v Busitema Mining CIE Ltd (HCT-00-CV-CS-0086-2008)

High Court · [2009] UGHC 135 · 2009 Judgment for Defendant AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for outstanding remuneration under employment contract
Decision
Suit dismissed due to illegality and unenforceability of the employment contract

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court held that an employment contract between a British citizen and a foreign company registered in Uganda was unenforceable because it was not attested as required by the Employment Act Cap. 219 s.14(1) in force at the time of execution, and failed to comply with Mining Regulations requiring Commissioner notification. The subsequent repeal of the Employment Act by the Employment Act 2006 did not validate the previously invalid contract. The court dismissed the claim for salary arrears, applying the principle ex turpi causa non oritur actio, with each party bearing its own costs as both were in pari delicto.

Outcome

Suit dismissed due to illegality and unenforceability of the employment contract

Facts

The plaintiff, a British citizen, was employed by the defendant, a foreign company incorporated in the British Virgin Islands and registered in Uganda, as General Manager of its mine in Busia from 1 January 2002. Under the employment contract, the plaintiff was entitled to US$7,000 per month, of which US$4,000 was payable monthly and the remaining US$3,000 was to be deposited in a savings account for payment after commencement of production. The plaintiff resigned after over five years' service and claimed US$120,902.89 in outstanding remuneration. The defendant had previously paid approximately US$75,000 towards the plaintiff's claims. The employment contract dated 1 January 2002 was not attested by a Magistrate or authorized officer as required by the Employment Act Cap. 219 s.14, which was in force at that time. The plaintiff's appointment as General Manager was also not notified to the Commissioner as required by Mining Regulations Regulation 50. The Employment Act Cap. 219 was repealed by the Employment Act 2006, which came into force on 7 August 2006. The plaintiff argued the new Act validated the contract or removed the attestation requirement; the defendant argued the contract was illegal and unenforceable.

Issues

  1. Whether there was legally a valid and enforceable contract of employment between plaintiff and defendant.
  2. Whether US$120,902.89 or any sum is due and owing to the plaintiff from the defendant.
  3. What remedies, if any, are available.

Orders

  • Suit dismissed.
  • Each party to bear its own costs.

Rules and key headnotes

Employment & Labour — Foreign Employment Contracts — Attestation Requirement — Effect of Non-Compliance
A foreign contract of employment is not enforceable unless it has been approved or attested in accordance with the Employment Act Cap. 219 s.14(1). Non-compliance with the mandatory attestation requirement renders the contract void and unenforceable, regardless of which party was responsible for compliance.
Statutory Interpretation — Effect of Repeal — Acts Done Under Repealed Legislation
A repeal does not in itself validate an act previously invalid. The validity or otherwise of a contract entered into under a repealed statute must be determined pursuant to the law in force at the time the contract was made. The Interpretation Act Cap. 3 s.13(2)(b) provides that a repeal shall not affect the previous operation of any enactment so repealed or anything duly done or suffered under it.
Employment & Labour — Savings and Transitional Provisions — Application to Invalid Contracts
The Employment Act 2006 s.100(1) requiring employers to offer existing employees terms no less favourable than those under the repealed Act presupposes the existence of a valid contract of service. Where the original contract was void for non-compliance with the repealed Act, the transitional provision does not operate to validate it.
Contract Law — Illegality — In Pari Delicto — Burden of Compliance
Where both parties to an employment contract fail to ensure compliance with a mandatory statutory requirement and there is no evidence that one party was more culpable than the other, both parties are in pari delicto. In such circumstances, the defendant is in the better position and the court will not enforce the contract. The duty to ensure attestation of a foreign employment contract rests on both employer and employee in the absence of contractual provisions or evidence to the contrary.
Administrative Law — Mining Regulations — Agent Notification Requirement
Under Mining Regulations Regulation 50, every holder of a mineral right who is not personally continuously in charge of operations must have an agent at the site and notify the Commissioner of the appointment. A General Manager appointed to oversee day-to-day mine operations is an agent for purposes of this regulation, and non-compliance with the notification requirement renders the employment contract invalid and unenforceable.
Contract Law — Illegality — Ex Turpi Causa — Court's Duty
No court will lend its aid to a person who founds their cause of action upon an illegal act. Where illegality is duly brought to the notice of the court and the person invoking its aid is implicated in the illegality, the court will not enforce obligations arising from the illegal contract. An illegality once brought to the court's attention overrides all questions of pleading, including any admissions made.
Evidence — Burden of Proof — Special Damages — Failure to Rebut
Where a plaintiff pleads special damages with particularity and adduces evidence in support, including detailed computation, and the defendant's witness states they trusted the plaintiff's figures and did not verify them despite having opportunity to do so, the burden of proof shifts to the defendant. Failure to adduce evidence to rebut the claim results in the plaintiff's computation being accepted as correct.

Legislation cited (10)

Cases cited (6)

  • Prof. Syed Huq v Islamic University in Uganda (Supreme Court Civil Appeal No. 47 of 1995)
  • Ahmed Ibrahim Bholm v Car and General Limited (Supreme Court Civil Appeal No. 12 of 2002)
  • Ashmore Ltd vs Dawson Ltd [1973] 2 All E.R. 856
  • Makula International Ltd vs His Eminence Cardinal Nsubuga & Anor [1982] HCB 11 at p. 15
  • Holman vs Johnson Cowp. 343
  • Scott vs Brown, Doering, Mcnab & Co. [1892] 2 QR 724 at 728

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

David May v Busitema Mining CIE Ltd (HCT-00-CV-CS-0086-2008) [2009] UGHC 135 (26 June 2009)
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.