AFRICA ADVOCACY FOUNDATION v MR KEEFA KIWANUKA [2001] UKEAT 0164_01_2405

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0164_01_2405Case No Appeal No. EAT/0164/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
AFRICA ADVOCACY FOUNDATIONAPPELLANTMR KEEFA KIWANUKARESPONDENT
Before
Mr Justice LindsaySir Gavin LairdDate 24 May 2001
[1]APPEARANCES For the Appellant DR A ADOKO (Representative) Free Legal Assistance 10 Soane House Roland Way London SE17 2JF MR JUSTICE LINDSAY (PRESIDENT) We have before us as a Preliminary Hearing the appeal of the Africa Advocacy Foundation in the matter Mr K Kiwanuka v Africa Advocacy Foundation . This morning Dr Adoko has appeared before us on behalf of the Foundation. On 10 August 1999 there was a hearing at London North before Mr Carl Teper, Chairman, sitting alone. On 16 August 1999 he sent his decision to the parties; given that he was sitting alone it was slightly odd that he records it as being "unanimous"; but, for all that, the decision was:
"The Respondent has made unlawful deductions from the Applicant's wages. The Respondent is ordered to pay the Applicant £4,872.84."
On that occasion the Applicant, Mr Keefa Kiwanuka, had Miss Fowler of Counsel acting for him and the Foundation had, again, Dr Adoko identified as its legal representative on that day. There is no reason to suppose that argument was not heard on the case and the decision runs to just over 3 pages.[2]Dr Adoko tells us that on 28 November 2000 the Foundation learned that it was not the Foundation that could be liable to pay Mr Kiwanuka but only, as it seems, if we have understood it correctly, the Trustees of the Foundation that could be so found liable. The letter of 28 November 2000 which is relied on to that effect has been asked for but is not available to us.[3]On 1 December 2000 the Foundation applied to the Employment Tribunal in a paragraph headed "APPLICATION TO SET ASIDE AN ORDER OBTAINED BY MISTAKE OF LAW". The application is signed by James Wamaghale, the Chairman of the Respondent Foundation; it says:
"The Respondent named above, hereby applies to the Employment Tribunal to set aside its order of 10/08/1999. The ground for the application is that the order was an error of law, on the face of the record. At the time, the Respondent did not know about the error. However, the Charity Commission subsequently pointed out that the suit was brought against a wrong party. Consequently, the order was thus made against a wrong party. The suit ought to have been brought, and the order ought to have been made, against the trustees of the Respondent; not against the Respondent. Hence this application."
The papers and the argument down to that date had contained no record or mention of the Foundation being a charity or a registered charity.[4]On 21 December 2000, the Chairman having taken that application of the 1 December to be an application for a review (which itself was perhaps a generous gesture in favour of the Foundation) refused the review. He said:
"Rule 11 of the Employment Tribunal Rules of Procedure 1993 provides that a Tribunal shall have power to review any decision on grounds there set out. Those grounds do not include an error of law but they do include that a party did not receive notice [ and so on]. "
A little later he says:
"I am not willing to reopen this case in the way suggested. I must point out that the Respondent entered an appearance as the Africa Advocacy Foundation and the point now raised was not raised before or at hearing when the Respondent was represented by Dr Adoko who described himself as "a legal representative"
. And Mr James Wamaghale was present. Furthermore, the application for a review is received outside the 14 day time limit provided by the rules, the delay is not explained and I am not willing to grant an extension of time. In the circumstances here I am not satisfied that this application falls within any of the heads under which a Tribunal may properly review its decision, I consider it has no reasonable prospect of success and I refuse it."[5]The Foundation lodged a Notice of Appeal with the Employment Appeal Tribunal of 6 January 2001. The Notice of Appeal was quite short; it says this:
"The Appellant named above, [that is, of course, the Foundation] being aggrieved by the decision of Chairman Carl Teper, made on 21/12/2000, in the Employment Tribunals at 19/29 Woburn Place, London WC1H 0LY hereby appeals against it on the grounds that the decision is contrary to: Rule 11(1)(e) of the Rules of Procedure. [that is the provision that allows a review in the interests of justice] Section 6 of Human Rights Act 1998 Rule 11(i)(d) of the Rules of Procedure [that is the rule that applies or enables a review to take place where new evidence has come to light] Rule 15(1) of the Rules of Procedure [that is the general rule that allows an extension of time] Rule of Natural Justice and the Principle of Equality."
[6]On 9 January the Foundation's Chairman, Mr James Wamaghale, swore an affidavit in support of this Application. The affidavit asserts that there was an error of law in the substantive decision sent to the parties on 16 August 1999. If there was, then there should have been an appeal within 42 days of 16 August 1999. There was none. In general a late review is not an alternative to a timely appeal. Next the Chairman of the Foundation claims that the Foundation had not realised that it had grounds for a review. Even if the case were to be that the Foundation could not be sued under its own name (which at the moment I shall assume without deciding) its ignorance of that supposed fact cannot justify permitting a challenge now in 2001 to a decision of August 1999. There needs to be finality in litigation. A party's own ignorance of its own formal legal position is not a factor that is so compelling as to permit the undoing of so old an award in favour of Mr Kiwanuka. The affidavit says:
"Lack of knowledge by both the parties, and the technical nature of the points raised made it mandatory for the Chairman to extend the time under the provision of Rule 15(1). The more so as the very reason d'etre of the Tribunal is not to allow a mere technicality to defeat the end of justice."
We confess to finding it difficult to spot the injustice. Here the position was that Mr Kiwanuka was employed by the Foundation. The Foundation employed him. It did not pay him his wages. He asked for his wages from the employer and did not get them. He complained to the Employment Tribunal. The Employment Tribunal heard the case on 10 August 1999. Both sides attended. Both sides had the opportunity to give as much evidence as they thought fit. The Foundation had a legal representative. As a result of that examination of the merits of the case the Tribunal required the employer to pay the wages to the man. The injustice of the matter is not apparent to us.[7]Then the Chairman of the Foundation says this:
"The Chairman pointed, in his judgment that, "
The Applicant's (i.e. Respondent's) representatives have objected by a letter of 12 December 2000 for the reasons there set out". The statement revealed that although a copy of the application was sent to the Respondent, yet, the objections of the Respondent was not sent the Appellant. The revelation gives rise to one ground of appeal: The conduct of the Tribunal was contrary to the European Law Principle of Equality, and to the English Rule of Natural Justice. It amounted to judicial bias." The Tribunal had indeed mentioned this; it said in paragraph one - this is the Chairman alone:
"The Applicant 's representatives [that is to say Mr Kiwanuka's representatives] have objected by a letter 12 December 2000 for the reasons there set out."
The letter of objection written by Mr Kiwanuka's solicitors we have at our page 15; it says at its foot:
"c.c: James Wamaghale, Africa Advocacy Foundation."
So the Tribunal, that is to say Mr Teper sitting alone, would naturally assume that the Foundation had been sent the letter. Indeed, Mr Wamaghale does not in terms say that the Foundation did not get the letter, but let it be supposed that the Foundation did not get the letter but should have had the opportunity to counter the solicitor's letter to which I have just referred. One needs first to know what the solicitor's letter said; it is dated 12 December 2000 and it said this:
" We note the Respondent's application. What in effect the Respondent is inviting the Tribunal to do is to alter its decision. We humbly submit that this is not possible. Alteration of a decision of a Tribunal can only be done under rules 10(9), 11 or 10(10)(b). The Respondent is unable to satisfy the requirements of either of these rules. Besides, a decision of the Tribunal is covered by the doctrine of res judicata and issue estoppel. As we understand it, a charity is in no different position to other organisations as far as taking or defending legal proceedings is concerned. Trustees have a duty to act in the interest of the charity where this involves taking legal action themselves or defending the charity in proceedings brought against it. Indeed, the Respondent with the assistance of its Legal adviser issued a claim form against the Applicant in the Lambeth County Court on 24 th January 2000. We enclose a copy of the claim Form for your assistance. In the circumstances we request the chairman to dismiss the Respondent's Application with cost in favour of Mr Kiwanuka."
It is then signed by the solicitors and, as I mentioned earlier, it has 'c.c: James Wamaghale, Africa Advocacy Foundation'. And, as an exhibit annexed to it, it has the claim form to which the letter refers. It is a claim by the Africa Advocacy Foundation against Mr Kiwanuka in the Lambeth County Court; it is proceedings issued in the name of the Africa Advocacy Foundation and its date is 24 January 2000, which is, of course, before the date 28 November 2000, the date to which Dr Adoko earlier referred.[8]Suppose that, as I mentioned, the Foundation did not in fact get a copy of that letter, it therefore has to have an opportunity to indicate what it could say contrary to that letter. That opportunity has obviously been given today but Dr Adoko has not told us anything that seems to undo the reasoning of the letter as laid before the Tribunal Chairman. For the Foundation, by its Chairman, to treat the matter as a matter of judicial bias when it would be the natural thing for the Chairman to expect the Foundation to have received the letter, having seen 'c.c: Dr James Wamaghale, Africa Advocacy Foundation' at the foot of the letter, seems really little short of absurd.[9]The Human Rights reference seems to us to add nothing of substance to the case. The interests of justice, as we have explained, fail to assist the Foundation. True it is that Rule 15(1) gave a right to the Chairman to extend time for a review, but it is, of course, a discretion to be judicially exercised and we find no fault in his failure to exercise it. He received the representations and decided that it was inappropriate to extend time and we see no error of law in that, and it is, of course, only errors of law with which we can be concerned. Looking at the Notice of Appeal and having heard Dr Adoko's argument we find no arguable error of law. Accordingly, that being so, we must dismiss the application even at this preliminary stage.[10]During the course of my Judgment, Dr Adoko rudely got to his feet and sought to intervene with a point. I pointed out to him that the proper time for correcting an error given in an extempore Judgment is at the end of the Judgment. Now he can have the opportunity he wishes to have to correct whatever I earlier said. What would you like to say? Just this sir. In the first place you say that the Chairman did not raise the point about the letter in his affidavit, which he did. I did not say that he did not raise the point. He obviously raised the point. I said that he does not in terms say that the letter was not received. The second point is, the purpose of coming to the Court, is that the Court should deal with the point of law that he wants decided and there was only one point of law why it came to this Court. The law says the Court should not impose judgment on a charity, and that point you have not dealt with. That is why I wrote a book called 'the most corrupt British judges' and I think this Court is such a corrupt body and I will put in an appeal. Thank you. You cannot put in an appeal unless you apply for leave to appeal. I will apply for leave to appeal sir. Do you want to apply now for leave to appeal? Yes sir. No, we refuse leave to appeal. You will have to ask the Court of Appeal for leave.