THE INDUSTRIAL COURT OF UGANDA NOT BOUND BY THE RULES OF EVIDENCE IN CIVIL PROCEEDINGS: A CASE REVIEW OF YUSUF BALIRUNO V CEENTRAL BROADCASTING SERVICES (LABOUR DISPUTE REFRENCE NO. 92 OF 2020)

Background

As a general rule of evidence, documents must be proved by primary evidence. Primary evidence means the original document itself produced in court. However, Section 64 of the Evidence Act, Cap. 6 lays out exceptions in which documents may be proved by secondary evidence including; when the original copy is or appears to be in the possession of the person against whom the document is sought to be proved, when the existence, condition, or contents of the original have been proved to be admitted on writing by the person against whom, when the original has been destroyed or lost, or is in the possession  or power of any person not legally bound to produce it, when the original is a public document, when the original is of such a nature that it cannot easily be moved, when the original is a document of which a certified copy is permitted by the evidence Act, or by any other law in force in Uganda, to be given in evidence, when the originals consist of numerous accounts or other documents which cannot conveniently be examined in court, and the fact to be proved is the general result of the whole collection.

In the above circumstances, court may admit certified copies of the original, copies made from or compared with the original, counterparts of documents as against the parties who did not execute them, oral accounts of the contents of a document given by some person who has himself or herself seen it.

The industrial court has however taken a less formal approach to labour justice and has held that it is not bound by the rules of evidence applicable to civil proceedings. This blog reviews the decision of Yusuf Baliruno v Central Broadcasting Services (Labour Dispute Reference No. 92 of 2020) in which the court held that photocopies of documents could be admitted regardless of that fact that they did not fall under the exceptions in Section 64 of the Evidence Act.

 

Brief Facts.

The case concerned admissibility of documents where Counsel for the Respondent objected to the admissibility of five of the Claimants’ documents because these documents were photocopies and not covered under the exceptions in Section 46 of the Evidence Act Cap. 6 of the Laws of Uganda, which requires the production of original documents. He cited the case of Nathan Bisaso Vs Ssenyonga & Another C.S No. 750 of 2017. He also submitted that the other documents were not addressed to the Claimant and offended the basic principles of admissibility.  He cited the case of Odongo Ochama Hussein Vs Abdul Rajabi H.C.C.A No. 19/2018 in support of that proposition. He further submitted that once a matter of admissibility of documents has been raised, it must be dealt with, and contended that it was a wrong procedure to put documents in for identification once their admissibility was contested.

Decision of the Court.

The court cited Section 18(1) of the Labour Dispute (Arbitration and Settlement) Act which is to the effect that the Industrial Court is not bound by the rules of evidence applicable to civil proceedings. It further cited the decision in Lubega Moses & 5 others v Roofings Uganda Ltd (Labour Dispute Ref. 166 of 2020), where it held the view that evidence in labour matters ought to be freely given and received, and the decision in Moro Charles v Greenhill Secondary School (Labour Dispute Ref. 10 of 2021), where it observed that the legislature intended to provide for a less formal approach to labour justice and that there appeared to be unanimity of view towards a less technically legalistic approach to evidence, entitling the Industrial Court to receive evidence submitted before it and determine its relevance, materiality, and weight.

Court further noted that cconsideration of the probative value of the evidence after admission ensures necessary safeguards, as such, the minimal formality is not about injustice.

Citing the South African decision of Southern Sun Hotels (Pty) Ltd v SA Commercial Catering & Allied Works Union and Another [2000] 21 in which he South African Labour Appeal Court found that hearsay evidence would be admissible in certain circumstances of labour disputes, court noted that the informal approach of evidence is rooted in social equity in administering labour justice. The constitutional precept of administering substantive justice without undue regard to to technicalities as set out in Article 126(2)(e) of the 1995 Constitution is expressive of the rules of procedure of the Industrial Court.

Court held that the documents could not be rejected at the preliminary stage of trial as the Respondent would still have ample time to address the court on the evidence’s authenticity, credibility, corroboration, and reliability after it has been tested in cross-examination. Court relied on the case of Jennifer Nsubuga v Mukundane Michael (C.A.C.A No. 208 of 2018) where in the lead judgment, the Honourable Lady Justice Monica Mugenyi (JJA) held that the admission of a document in evidence does not in any way affirm its legality or authenticity. Its admission is or was subject to proof of its evidential worth, which would of necessity entail a determination of its authenticity and or legality.

 

Significance of the Decision

The industrial court has fortified the point that it is not bound by the rules of evidence applicable in civil proceedings and evidence in labour matters ought to be freely given and received. The implication of this is that for an aggrieved party in a labour dispute, may produce in evidence photocopies of essential documents like contracts of employment, addendums to agreements, where the employer may have not given the original copy to the employee. Oral accounts of documents such as contracts of employment, termination letters, and any other notices may also be admissible in the absence of the original document provided they are given by a person who saw the document.

However, it is important to note that while Section 18(1) of the LADASA provides for flexibility in admissibility of evidence, Rule 12(2) of the Labour Dispute (Arbitration and Settlement) (Industrial Court) Rules, 2012 strictly stipulates that all documentary evidence tendered in the court shall be original or where an original cannot be found, a certified copy of the original. To be on the safer side, it is advisable that in the absence of the original copy of the document, the photocopy is certified.