Wakilii

Uganda Telecom Limited v The Managing Director National Social Security Fund and Another (Miscellaneous Cause No 68 of 2015)

High Court · [2015] UGHC 33 · 2015 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for judicial review seeking mandamus, prohibition and declarations regarding NSSF contributions for excepted employees
Decision
Application for judicial review allowed with orders for refund of illegally collected NSSF contributions, prohibition from future collection, and issuance of clearance certificate

Observed later treatment

Cited — treatment unverified cited in 2 (treatment unverified) Sequitur — Uganda’s citator · Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

No adverse treatment recorded Cited 2 times with no adverse treatment recorded; not yet tested on the merits. Derived from citing cases in the Wakilii corpus — a deterministic signal, not legal advice.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

Held that employees who transferred from UPTC to Uganda Telecom Limited and members of UCECPS are in excepted employment under the NSSF Act by virtue of being eligible for pension benefits under the Pensions Act and being members of a statutory pension scheme respectively. The demand, collection and retention of NSSF contributions in respect of these excepted employees was ultra vires the NSSF Act, illegal, null and void. NSSF ordered to refund the illegally collected contributions with statutory interest in the proportions contributed.

Outcome

Application for judicial review allowed with orders for refund of illegally collected NSSF contributions, prohibition from future collection, and issuance of clearance certificate

Facts

Uganda Telecom Limited (UTL) applied for judicial review remedies challenging NSSF's collection and retention of social security contributions in respect of UTL employees who were either former UPTC employees transferred to UTL or members of the Uganda Communications Employees Contributory Pension Scheme (UCECPS). NSSF had compelled UTL to make contributions under threat of criminal proceedings since 1996. A previous judgment in Bernard Mweteise v Uganda Telecom Ltd (Civil Suit 135 of 2003) established that former UPTC employees who transferred to UTL were entitled to pension under the Pensions Act. UTL sought advice from the Solicitor General, who advised in October 2014 that contributions in respect of pensionable staff were made in error and should be refunded. NSSF initially agreed with this advice and undertook to reconcile and refund by end of February 2015, but subsequently reneged on its undertaking. The application was filed in April 2015 seeking declarations, prohibition, mandamus for refund, and a clearance certificate.

Issues

  1. Whether the application is time barred.
  2. Whether the application is barred by statute under Section 6 of the Civil Procedure Act.
  3. Whether the application is an abuse of court process.
  4. Whether judicial review is an appropriate remedy.
  5. Whether ex-UPTC employees transferred to Uganda Telecom Limited are in excepted employment under the NSSF Act.
  6. Whether members of UCECPS are in excepted employment under the NSSF Act.
  7. What is the meaning and effect of the contractual terms of the applicant's employees in light of the NSSF Act.
  8. Whether the contributions made by Uganda Telecom Limited to NSSF in respect of pensionable employees were voluntary.
  9. Whether the collection, demand and retention of contributions by NSSF in respect of ineligible employees is ultra vires the NSSF Act.
  10. Whether the applicant is entitled to the remedies sought.

Orders

  • Declaration that the demand, collection and continued retention of contributions in respect of the Applicant's ineligible and excepted employees is ultra vires, illegal, null and void ab initio.
  • Order of prohibition and injunction issued against the Respondents restraining them from demanding, collecting arrears or retaining contributions in respect of the Applicant's ineligible and excepted employees.
  • Order of mandamus directing the Respondents to refund the monies illegally and erroneously collected as standard contributions to the Applicant in respect of its ineligible employees in the proportions they made the said contributions.
  • All monies to be refunded by the 2nd Respondent to bear statutory interest under the NSSF (Interest on Benefits) Orders issued for each year held by the Respondent.
  • Order of mandamus directing the 1st Respondent to issue to the Applicant a clearance certificate under Section 7(5) and (6) of the NSSF Act.
  • Costs of the application to be borne by the 2nd Respondent.

Rules and key headnotes

Social Security — Excepted Employment — Employees Eligible for Pension under Pensions Act
Under the NSSF Act, employees who are eligible for pension benefits under the Pensions Act are in excepted employment and are therefore not eligible for membership of the National Social Security Fund. The exemption applies to former UPTC employees who transferred to Uganda Telecom Limited, as their pension rights are governed by the Pensions Act by virtue of statutory succession provisions.
Repeal and Re-enactment — Continuity of Rights under Repealed Legislation
When a statute is repealed but its provisions are simultaneously re-enacted with or without modification, the re-enactment is a reaffirmation of the old law and the provisions continue without interruption. Under Section 13 of the Interpretation Act, rights and liabilities acquired under the repealed Act are preserved, including employment status and pension eligibility established under repealed legislation.
Social Security — Excepted Employment — Members of Statutory Pension Schemes
Members of a statutory pension scheme established by legislation are in excepted employment under Item 7 of the First Schedule to the NSSF Act. There is no requirement for ministerial approval of a statutory scheme to qualify for exemption from NSSF membership. Once employment qualifies under any category in the First Schedule, it automatically becomes excepted employment by operation of law.
Judicial Review — Illegality — Ultra Vires Collection of Contributions
Where a public authority compels contributions under statutory provisions that do not apply to the persons from whom contributions are demanded, such collection is ultra vires and constitutes illegality remediable by judicial review. NSSF's compulsory requirement that Uganda Telecom Limited make contributions in respect of excepted employees was legally erroneous and outside the authority conferred by Section 7 of the NSSF Act.
Judicial Review — Irrationality — Disregarding Legal Advice Procured
Where a public body procures legal advice from the Solicitor General, expressly agrees with that advice, undertakes to act upon it, and subsequently disregards it without any legal challenge or sufficient overriding public interest, such conduct is irrational and amounts to conduct of public affairs by whim and caprice remediable by judicial review.
Legitimate Expectation — Breach of Undertakings by Public Authority
A legitimate expectation arises where a public authority makes promises or representations to a party, the party relies on those representations, and the authority is under a duty to fulfill those expectations unless there is a sufficient overriding public interest justifying departure. Where NSSF undertook to reconcile contributions and refund monies by a specified date after the applicant provided all required documentation, the failure to honor that undertaking constitutes breach of legitimate expectation.
Voluntary Membership — Prerequisites under NSSF Act
Voluntary registration under Section 10 of the NSSF Act is available only to employers not obliged to make standard contributions by virtue of having fewer than five employees, and only eligible employees of such employers may apply for voluntary membership. Contributions compelled by threat of criminal proceedings do not constitute voluntary membership. Excepted employees cannot become NSSF members whether on a voluntary or compulsory basis.

Legislation cited (14)

Cases cited (18)

  • Republic against Secretary of State for Education & Science, Ex parte Avon County (1991) ALLER at 282
  • Aggrey Bwice v Judicial Service Commission and Attorney General (Court of Appeal Civil Application No. 9 of 2009)
  • John Jet Tumwebaze v Makerere University Council and Others (High Court Civil Application No. 353 of 2005)
  • M/s Semwo Construction Co v Rukungiri District Local Government (Miscellaneous Cause No. 30 of 2010)
  • Peter Apeii and Others v The Permanent Secretary Ministry of Lands, Housing and Urban Development (Miscellaneous Cause No. 73 of 2009)
  • Obbo v. Owor and anor (1988-1990) HCB at p.93
  • Bernard Mweteise, Asaph Ndaula and 823 Others v Uganda Telecom Ltd and Others (High Court Civil Suit No. 135 of 2003)
  • National Insurance Corporation v National Social Security Fund (High Court Civil Suit No. 150 of 1996)
  • Kay vs. Goodwin [1830] 6 Bing 567
  • Alex Kyebagaire and Another v Uganda Telecom Limited (Court of Appeal Civil Appeal No. 73 of 2009)
  • Alima Santos, John Sentongo and 675 Others v Attorney General (Miscellaneous Application No. 122 of 2010)
  • Uganda v Atugonza Francis (Constitutional Reference No. 31 of 2010)
  • N.K Choudry v Uganda Electricity Board (Supreme Court Civil Appeal No. 27 of 2010)
  • Council of Civil Service Unions and ors v. Minister of the Civil Service (1984) ALL ER pp.937
  • Fibrosa Spolka Akcyjna v. Fairbairn Lawson Combe Barbour Ltd (1943) AC P.32 at p.61
  • Moses v. MacFerlan (1760) 2 Burr 1005, 1 Wm Bl 219, 12 Digest 539, 4478
  • Rock Petroleum (U) Ltd v URA (High Court Civil Suit No. HCT-00-CC-OS-0009-2009)
  • Mugabi Edward v Kampala District Local Council (Miscellaneous Cause No. 18 of 2012)

Cases citing this judgment (2)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

Full judgment

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Uganda Telecom Limited v The Managing Director National Social Security Fund and Another (Miscellaneous Cause No 68 of 2015) [2015] UGHC 33 (29 September 2015)
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.