Uganda Legal Information Institute - Unlawful Or Unfair Dismissal https://old.ulii.org/tags/unlawful-or-unfair-dismissal en Tropical African Bank Ltd v Ali Hajji Abdi (CIVIL SUIT NO 569 OF 2002) [2017] UGCOMMC 29 (13 April 2017); https://old.ulii.org/ug/judgment/commercial-court-uganda/2017/29 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/cl" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">CL</a></li><li class="field-item odd"><a href="/tags/fraud-0" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Fraud</a></li><li class="field-item even"><a href="/tags/breach-fiduciary-duties" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Breach of Fiduciary Duties</a></li><li class="field-item odd"><a href="/tags/unlawful-or-unfair-dismissal" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Unlawful Or Unfair Dismissal</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p><strong>THE REPUBLIC OF UGANDA,</strong></p> <p><strong>IN THE HIGH COURT OF UGANDA AT KAMPALA</strong></p> <p><strong>(COMMERCIAL DIVISION)</strong></p> <p><strong>CIVIL SUIT NO 569 OF 2002</strong></p> <p><strong>TROPICAL AFRICAN BANK LTD}.............................................................PLAINTIFF </strong></p> <p><strong>VERSUS</strong></p> <p><strong>ALI HAJJI ABDI} ...................................................................................DEFENDANT</strong></p> <p><strong>BEFORE HON. MR. JUSTICE CHRISTOPHER MADRAMA IZAMA</strong></p> <p><strong>JUDGMENT</strong></p> <p>This suit against the Defendant was reinstated after judgment was set aside. By the amended plaint of the reinstated suit, the Plaintiff’s claim against the Defendant is for payment of Uganda shillings 921,883,306/= allegedly fraudulently siphoned from the Plaintiff’s bank account through various accounts, with the participation and/or collusion of the Defendant. It is also for interest on the amount claimed, compensation in damages for breach by the Defendant of the fiduciary duty owed to the Plaintiff and for costs of the suit.</p> <p>The Plaintiff's case in the pleadings is that the Defendant was at all material times the acting branch manager of the Plaintiff's Kampala branch and his duties included receiving cheques presented for payment by the Plaintiff’s customers and by other banks on the behalf of their customers. The case is that on various occasions in the year 2001 the Defendant authorised direct credit entries into Account No. 446230 operated by Hussein Ali (a son of the Defendant) on the basis of cheques issued by Hussein Ali to the tune of Uganda shillings 166,130,209/= that had not been cleared. Furthermore, on various occasions in the year 2001 the Defendant further authorised direct credit entries into account number 447181 operated by Raphael Drichi (a customer of the Plaintiff) against cheques that had not been cleared. The cheques were later dishonoured and at the time of filing this suit, the said account was in debit in the amount of Uganda shillings 171,194,949/=. Between February 2001 and April 2002 the Defendant received several cheques drawn on account number 44630 in the names of Hussein Ali Abdi totalling to Uganda shillings 360,889,500/=. The Defendant further received cheques totalling Uganda shillings 15,548,640/= drawn on account number 224302 in the names of Hussein Ali trading as New Kireka Agip Petrol Station. All the cheques were not arranged for and the Defendant was to have returned them unpaid within three days but instead held them at his office beyond the period and as a result the clearing account was debited with the said amount to the detriment and loss of the Plaintiff.</p> <p>Additionally between February 2001 and April 2002, the Defendant received several cheques drawn against account number 477146 in the names of Bosi Ali (son of the Defendant/Counterclaimant) totalling to Uganda shillings 156,357,000/=.</p> <p>The Defendant suspended the said cheques in the suspension account and as a result, the Plaintiff’s suspense clearing account was debited with the said amount and the cheques later returned unpaid. On or around 26th of March 2002, the Defendant received two cheques drawn on account number 2501606400 with the Development Finance Company Uganda in the names of Raphael Drichi and operated by Lucky &amp; Sons Ltd totalling Uganda shillings 59,500,000/= and for the benefit of New Agip Nateete Service Station. The Defendant authorised the said cheque numbers 207540 and 207535 (DFCU) to be credited directly to the account of the said New Agip Nateete Service Station but the cheques were later returned unpaid when actually the funds had already been withdrawn from the beneficiary’s account. The Plaintiff’s staff discovered the above irregularities sometime in May 2002 and on the 2nd of May 2002 the Defendant bound himself by a memorandum of understanding with the Plaintiff to make good the losses that had been incurred by the Plaintiff according to the copy of the memorandum of understanding attached to the plaint.</p> <p>Following the MOU the Plaintiff’s staff discovered that there were other losses that had been caused by the Defendant and the Defendant admitted that he was liable and was to compensate the Plaintiff according to a statement made before the manager for legal services on the 13th of May 2002. Sometime in June 2002, the Defendant did pay a sum of Uganda shillings 25,000,000/= in partial satisfaction of his undertaking but he later failed or neglected or refused to honour his undertaking. Consequently the Plaintiff filed HCCS No. 569 of 2002 for payment of the outstanding amount lost through the Defendant’s activities. On 8th November, 2005 the Defendant was terminated from service by the Plaintiff and the amount of Uganda shillings 921,883,305/= has never been paid to date.</p> <p>In reply the Defendant denied the Plaintiff’s claim. He contended that his duties as the branch manager did not in any way include receiving cheques presented for payment by customers of the Plaintiff and other banks on behalf of their customers because it was the head of current accounts who kept the cheques and had a register for it. Cheques are received by the teller and handed to the rectifying clerk to confirm if they are in order and protect the balance on the account to ensure that there are enough funds to cover the cheques. For cheques of over Uganda shillings 10,000,000/=, the branch manager had to pass the same with his signature. But in this case the Defendant never appended his signature on the questioned cheques in issue as they were not brought to his attention. It was Kigongo Patrick the in charge current accounts who was responsible for failing to present the said cheques and kept them beyond the three authorised to days contrary to bank regulations governing the clearing of cheques. He further contended that it was Kigongo Patrick who suspended the cheques in issue and not referring them to the Defendant. He was the one directly interested in the cheques and he was prosecuted for causing financial loss to the bank.</p> <p>Furthermore, the Defendant asserted that he never breached his fiduciary duty to the Plaintiff or defrauded the Plaintiff or colluded with any person to defraud the Plaintiff of Uganda shillings and hundred and 12,883,306/= or any amount at all. He was cleared by the court of the alleged fraud and causing financial loss to the bank according to the judgment of the court in criminal case number 723 of 2002</p> <p>The Defendant filed a counterclaim for declaration that the continued suspension of the counter claimant by the counter Respondent/Plaintiff without pay was illegal; the dismissal was unlawful and a violation of the Defendants rights; payment of the Counterclaimant’s salary arrears and fringe benefits; general damages; interest and costs of the counterclaim.</p> <p>There are several other averments which do not need to be repeated here. In the joint scheduling memorandum executed by Counsels of the parties on 23rd March, 2015, the agreed facts are as follows:</p> <p>The Defendant was employed by the Plaintiff bank in various positions and at the time of these suspensions, he was employed as the acting manager, Kampala branch. Secondly, whilst in the Plaintiff’s employment, the Defendant was charged with the offences of causing financial loss under Criminal Case No 723 of 2002 – Uganda versus Al Hajj Abdi and was later acquitted of the offences. Thirdly, the Plaintiff filed civil suit number 569 of 2002 demanding from the Defendant payment of Uganda shillings 912,883,306/=. Ex parte judgment entered in the case on 1st November, 2005 was set aside and an order given for the case to be heard inter partes.</p> <p>The Plaintiff was represented in the proceedings by Counsel George Mike Musisi while the Defendant was represented by Counsel Joseph Kiryowa and upon adducing evidence on both sides; Counsels addressed the court in written submissions which capture the gist of the facts adduced in evidence.</p> <p><strong>The Plaintiff’s submission on facts: </strong></p> <p>Between 2001 and 2002 large amounts of money amounting to Uganda shillings 912,883,306<em>/= </em>were paid out to the Plaintiff's bank customers in a fraudulent way that caused financial loss to the Plaintiff. The withdrawals of this money were effected using accounts some of which belonged to the Defendant's children Hussein Ali Abdi, holder of Account number No. 446230 and also operating account No. 224302 under the title, New Kireka Agip Petrol Station, another account No. 447146 operated by Bosi Ali and another Account No. 447181 operated by Raphael Drichi which was found to have been overdrawn. The Plaintiff's case is that the fraudulent acts of the Defendant who was the Branch manager of the Plaintiff led to the loss now claimed by the Plaintiff at its Kampala branch at the time. As manager, the Defendant’s duties included the control of the banking affairs within the branch, supervision of cash transactions, foreign business and inward and out ward clearing and controlling the suspense account. The Defendant allowed direct entries to be made on the customers' accounts in question and by the time the cheques would be returned to show that the money was not arranged for, the customers had already taken the money. In the alternative, the Defendant authorized for payment of money against cheques when there was no money on the accounts of the customers concerned and this caused the accounts to go into debit balance. The branch manager took it upon himself to authorize these transactions and as a result, caused financial loss to the Plaintiff.</p> <p><strong>ISSUES. </strong></p> <ol> <li>Whether the Defendant caused financial loss to the Plaintiff?</li> <li>Whether the Defendant was lawfully suspended and/or dismissed by the Plaintiff?</li> <li>What are the remedies available to the parties?</li> </ol> <p><strong>ISSUE 1</strong></p> <p><strong>Whether the Defendant caused financial loss to the Plaintiff? </strong></p> <p> </p> <p><strong>PLAINTIFF’S SUBMISSIONS</strong></p> <p>The Plaintiff’s Counsel submitted that in order to resolve this issue, it was necessary to establish what duties and obligations the Defendant had as branch manager. The Defendant owed a fiduciary duty to the Plaintiff as a branch manager of the Plaintiff’s bank. According to <strong>Black's Law Dictionary</strong> <strong>8th Edition</strong> ‘fiduciary duty’ means a duty of utmost good faith, trust, confidence, and candour owed by a fiduciary (such as a lawyer or corporate officer) to the beneficiary (such as a lawyer's client or a shareholder); a duty to act with the highest degree of honesty and loyalty toward another person and in the best interests of the other person (such as the duty that one partner owes to another). This means a person who is required to act for the benefit of another person on all matters within the scope of their relationship; one who owes to another the duties of good faith, trust, confidence, and candour; the corporate officer is a fiduciary to the corporation; one who must exercise a high standard of care in managing another's money or property.  In the premises the Defendant was a fiduciary to the Plaintiff.</p> <p> </p> <p><strong>MALAFIDES ON THE ACCOUNTS </strong></p> <p>The Plaintiff’s Counsel submitted that account number 446230 in the names of the Defendant shows by the memorandum of understanding Ex P1 presented to court that the Defendant acknowledged that he authorized direct credit entries on the above mentioned account amounting to Uganda shillings 166,130,209/=. It was evident in the statement of account No. 446230 of Hussein Abdi (Ex P8) that the said money amounting to Uganda shillings 166,130,209/= was overdrawn. PW3, Addah T. Wegulo in re-examination based her testimony on Ex P8 at page 103 of the trial bundle, line 49 that the account of Hussein All Abdi was overdrawn by Uganda shillings 166,130,209.=. This is the amount that was admitted in the Memorandum of Understanding Ex P1.</p> <p> </p> <p><strong>Account No. 447181 in Names of RAPHEAL DRICHI </strong></p> <p>In exhibit P1 (MOU) the Defendant admitted authorizing<br /> direct entries on the above mentioned account which was now in debit of Uganda shillings 171,194,949/=. The said debit appears on the statement of Account of Raphael Drichi <strong>Exp11 </strong>PW3 testified that in May 2002 in Ex P1 the Defendant came up with an agreed schedule to pay the balance. He made payment on the 30th May 2002 to the tune of Uganda shillings 25,000,000/=<em>. </em>Out of that sum Uganda shillings 10,000,000/= was banked on the account no. 446230 of Hussein Ali Abdi and Uganda shillings 15,000,000/= was paid on Account No. 447181 of Raphael Drichi. These two credits are clearly shown on the individual statements of Account <strong>Exhibit P8 </strong>and <strong>Exhibit P 11. </strong>In the MOU, the Defendant offered to pay Uganda shillings 30 million on account No. 446230 of Hussein Ali Abdi and 447181 of Raphael Drichi by Friday 10th May 2002, after which he was supposed to negotiate with the Plaintiff bank a schedule of paying the balance. The Defendant undertook to bear responsibility in case it was discovered that similar direct credit entries were effected on other accounts while he was in office. Indeed other anomalies were discovered leading to another statement by the Defendant <strong>EX P 12. </strong>In Ex P12, a statement signed by the Defendant on the 13th day of May 2002, he accepted to have received several cheques drawn on Account No. 446230 in the names of Hussein Ali Abdi totaling Uganda shillings 368,889,500/=. The Defendant further accepted that he should have returned the unpaid cheques within three (3) days as they were not arranged for, but he suspended them instead in the Suspense Account. As a result, the Plaintiff's clearing account was debited with the said amount of Uganda shillings 368,889,500/=</p> <p> </p> <p>The Defendant further admitted receiving DFCU cheques N0207540 of Uganda shillings 28,500,0001= and No. 207535 of Uganda shillings 31,000,0001= drawn on Account No. 2501606400 in the names of Lucky &amp; Sons Ltd, operated by Mr. Bosi Ali (son of the Defendant) for the benefit of the Plaintiff's customer New Agip Natete Service Station. The cheques were directly credited on the customer's account and were later returned unpaid but the funds had already been withdrawn thereby leaving the bank to bear the loss. All in all, the Defendant acknowledged in Exhibit P12, to have been responsible for the loss of Uganda shillings 600,295,140/= and pledged to agree on a schedule to make good the loss. The Defendant further offered to sell some of his properties to pay the Plaintiff. Though the Defendant accepted signing these documents, EX P1 and EX P 12 he denied liability on the ground that he was tortured into signing them. His testimony is that he was made to sign both documents at gun point after the Plaintiff's managing director called in operatives of the Chieftaincy of Military Intelligence and accused the Defendant of being a terrorist. The Plaintiff does not agree with the defence of duress in execution of Exhibit P1 and P2. PW3 was present in the Managing Director's office at the different times both documents were signed, and truthfully testified that there was no torture or duress on the Plaintiff's part. The first statement Exhibit P1 was signed by the Defendant in a free office environment without the involvement of any forces. It was an understanding reduced into writing. It was typed out and studied by the Defendant. He confirmed that it was a true reflection of what was agreed upon. The Defendant signed all the pages of the memorandum and PW3 witnessed. The second statement, Exhibit P 12 made eleven (11) days later on the 13th May 2002 was also signed on all pages by the Defendant and even witnessed by the Defendant's son, Hussein Ali Abdi.</p> <p> </p> <p>Counsel prayed that the allegations of torture and duress alleged by the Defendant during the signing of Exhibits P1 and P12 be disregarded because:  </p> <ol> <li>The two documents were signed on separate dates, eleven (11) days apart. It was not possible that the Defendant was coerced to sign one document at gun point and went home and then came back to his workplace eleven days later to sign another document at gun point and under torture. Between the first and second document signed, the Defendant had ample time to report to the relevant authorities that he had been forced to sign a document implicating him in a serious criminal matter.</li> <li>The Defendant does not show that he was forced into the Plaintiff's managing director's office on any of the two occasions. He was invited and attended voluntarily. He did not in his pleadings or testimony disclose how he got to know that the personnel who forced him to sign the documents were from CMI as he alleged, or that he knew them earlier as such.</li> <li>In Exhibit P12, the Defendant visibly corrected mistakes in the document and countersign it.</li> <li>On the 2nd occasion, when the Defendant signed Exhibit P12, he came with his son, Hussein Ali Abdi who signed on the statement as a witness. There was no evidence produced by the Defendant to show that Hussein Ali Abdi was himself tortured or in any other way was put under duress to witness his father's statement. He notably kept away from testifying in this case.</li> <li>The contents of the statements Exhibit P1 and Exhibit P12 were true amounts of money admitted by the Defendant to have been lost in direct credits and the suspense account and are reflected in the bank statements of the concerned customers and the audit report (report of reconciliation of the inward clearing account) Exhibit P13, It should be noted that the findings of the Auditor were made on 12th June, 2002 long after the Defendant's statement Exhibit P12 was signed. However, the amount of money Uganda shillings 600,295,140/= admitted by the Defendant in Exhibit P 12 as being the loss occasioned is reflected also in EXP 13. The Defendant's admission in Exhibit P12 that the cheques in question were handed over to him by Mr. Kigongo (PW1) in March 2002 is corroborated by the evidence of PW1 himself. There was an attempt by the Defendant to fulfill his promise in the memorandum Exhibit P1 when deposits of Uganda shillings 25,000,000/= were made on the accounts in issue.</li> <li>The Defendant's son, Hussein Ali Abdi, made a statement himself Exhibit P9 where he made an admission that cheques amounting to Uganda shillings 384,438,140/= were issued by him, on his account no. 446230 and 224302 in the business name of New Kireka Agip Petrol Station and that the said cheques were honored when there were no funds on those accounts. In Exhibit P12, the Defendant admits that he suspended the cheques in the Suspense Account beyond the three days when they should have been returned, thus occasioning the loss.</li> <li>The Defendant's admission in ExP12 that the cheques in question were handed over to him by Mr. Kigongo (PW1) in March 2002, is corroborated by the evidence of PW1 himself.</li> <li>Further, having alleged duress, the Defendant did not plead any particulars as required by Order 6 rule 3 of the Civil Procedure Rules which requires particulars of duress to be pleaded.</li> </ol> <p>Counsel submitted that PW4 testified that the Defendant had supervisory roles in the Plaintiff bank and this included the control of the banking affairs within the branch, supervision of cash transactions, foreign business, inward and outward clearing. He also controlled the Suspense Account. The Suspense Account would be debited when a customers' cheque is issued for payment with no corresponding funds on his or her account. Where there are not enough funds with respect to cheques drawn on customer's accounts, the Defendant would determine whether to return the cheque unpaid (dishonor it) or to keep the cheque  for later payment (on the suspense account). PW1 Kigongo Patrick testified in elaboration how the outward and inward clearing system worked in paragraph 6 of his testimony. "Cheques, deposited over the counter (on the authorization of the branch manager) could be given / credited directly into the depositor's account before the cheque itself is sent for collection." In paragraph 11, "It was routine that every evening all cheques suspended on Account 1725 would be taken to the branch manager for him to see the position and decide which cheques should be dishonored or retained. Even during the day, at times he would call, to get the position. So at all times, the Defendant was in a position to know the balance on the account. If he wanted he would add up the cheques and compare with the balance on the account. "</p> <p> </p> <p>PW3 was the assistant branch manager and testified about the duties of the Defendant with regard to one way of handling a cheque deposited by a customer. A branch manager is supposed to control all departments within the branch, including cash, foreign business and current accounts which covers clearing. The branch manager can give "direct credit’ which means that he can order that value be given to the cheque before maturity, thereby allowing the customer access to the funds before the cheque is cleared. PW3 further testified that give the risky nature of this facility, only the branch manager could authorize it. The branch Manager uses his best judgment when granting the facility taking into consideration the party on which the cheque is drawn and the account to which the cheque is being deposited. In case of non- payment the branch manager is fully responsible for the recovery of the funds should there be insufficient funds on the account to cover the payment/credit. PW3 testified that in the case of inward clearing cheques or cheques received by the Plaintiff bank from other banks through the clearing house drawn on its customers, the amounts are debited immediately on the date of receipt if funds are available. In case of insufficient funds or technical reasons warranting nonpayment the cheque is debited to a suspense account pending further action. Cheques should not be held on this account for more than two (2) working days. They must be paid or returned to the collecting bank, giving reasons for nonpayment. It is the branch manager's responsibility to ensure that this is done.</p> <p>The Defendant breached the duties bestowed on him when he allowed direct credit onto customer accounts while there were no funds to<br /> support such credit and also suspended cheques on the suspense account beyond the period when the cheques were to clear and by the time they were returned, it was discovered that there were no funds on the requisite accounts, while the Plaintiff's account had been debited with such funds. The cases in point include 26 cheques which the Defendant suspended on the suspense account No. 1725 beyond the requisite period. All the cheques were tendered in evidence as Exhibit P4. However, the cheques in Exhibit P4 amounted to 36 cheques. There was a cheque which was not found but whose number (207535) and amount of Uganda shillings 31,000, 000/= are shown on page 47 of the trial bundle. According to PW3 this cheque could have been misplaced due to the lapse of time but is in the records. It is also one of those included in the report Exhibit P12 being the reconciliation report of PW5 Anne Nandaula.</p> <p> </p> <p>PW1 testified in paragraphs 7, 8, 9 and 10 that he received the unreturned cheques Exhibit P4 and other cheques and found that they did not have sufficient balance on the respective accounts to meet the amounts written on them. He referred the cheques to the Defendant as branch manager to decide whether to pay them, dishonor them or suspend them for future payment. He determined that they should be for future payment since they were not dishonored. The cheques in issue stayed for long and were not paid while the presenting banks had already paid their customers who had presented them. PW1 later realized that the account holders of the cheques were the Defendant's sons. The Defendant insisted that he would clear the cheques but he kept them until the new manager took office.  According to PW1 and PW2 the total amount of money on the cheques found with the Defendant was Uganda shillings 540,795,000/=<em>. </em>The Defendant contended that he did not know anything about the cheques and that the cheques were actually held and kept by PW1 who the Defendant accuses of suspending them. It is however clear from the two Plaintiff's witnesses PW1 and PW2, who have since retired from the employment of the bank that the cheques were found with the Defendant in his drawer.</p> <p>PW2 in particular testified about the Defendant's attempt to evade the opening of the drawer the first time he brought the keys, pretending that he was in a hurry. It is further clear from this testimony that the Defendant refused to go to the General Manager to report the incidence of the cheques whereupon PW2, did it himself. The Defendant was also able to identify his signature on some of the cheques when asked to do so. The same signature of the Defendant appears against some of the cheques in Exhibit P6 being the list of cheques returned through the clearing system for non availability of funds. The Defendant's signature appears on Exhibit P6 in the following places;</p> <p>(a) Cheque No. 3233785 of Uganda shillings 50, 000, 000/= INO (IN THE NAMES OF) Hussein Ali Abdi Page 53</p> <p>(b) Cheque No. 466686 of Uganda shillings 50,000,000/= INO. New Natete Agip Page 56.</p> <p>(c) Cheque No. 3541352 of Uganda shillings 30,000,000/= INO. New Natete Station at page 58</p> <p>(d) Cheque No. 35441353 and 01466091 both of Uganda shillings 50,000,000/= INO Hussein Ali Abdi at page 61.</p> <p>(e) Cheque Nos. 3541365 and 3541364 both of Uganda shillings 50,000,000/= INO Hussein Ali Abdi at page 62 (g) Many other dishonored cheques where the Defendant signed that he had handed them over to his son Hussein Ali Abdi appear in Exhibit P6 at pages 63, 64, 65, 66, 67 of the trial bundle .</p> <p> </p> <p><strong>TOTAL LOSS </strong></p> <p>It was established through an internal audit where a report was made of the reconciliation of the inward clearing account. This report Exhibit P 13 which was produced by Anne Nandawula, PW5, who was the Manager Internal Audit, revealed that cheques covering a total figure of Uganda shillings 600,292,148/= were found not reconciled for the period January 2000 to April 2002. These included the 26 cheques worth Uganda shillings<strong> 540, 792, 148/= </strong>which were recovered from the Defendant, most of which were for the two sons of the Defendant. The last two cheques of Uganda shillings<strong> 28, 500, 000/= </strong>and Uganda shillings<strong> 31, 000, 000/= </strong>have also been referred to earlier above. This makes the total of Uganda shillings<strong> 600,292,148/= </strong>according to Exhibit P 13. The same amount of money was admitted by the Defendant in Exhibit P 12. Further to the above figure is the amount admitted by the Defendant in Exhibit P1 of Uganda shillings<strong> 166,130,209 </strong>on the account of Hussein Ali Abdi and Uganda shillings 171,194,949/= on the account of Raphael Drichi. This would make a total loss of Uganda shillings 937, 620, 298/=. It was shown by the evidence of PW4, Addah T Wegulo that the Defendant paid back to the bank an amount of Uganda shillings  25,000,000/=, Uganda shillings 10,000,000/= on A/c No 446230, of Hussein Ali Abdi and Uganda shillings 15,000,000/= on AC No A47181 of Raphael Drichi. When this figure is subtracted from the total amount of Uganda shillings 937, 620, 298/= it leaves a balance of Uganda shillings<strong> 912,620,298/=.</strong> The total loss therefore caused by the Defendant to the Plaintiff and which the Defendant should pay is Uganda shillings 912,620,298/=<em>. </em> Counsel prayed that judgment is entered for the Plaintiff in the total amount of <strong>Uganda shillings 912,620,298/=</strong>, with interest thereon at 26% per annum from the date of filing the suit till payment in full, and for costs of the suit.</p> <p> </p> <p><strong>DEFENDANT’S SUBMISSIONS IN REPLY</strong></p> <p>The Defendants Counsel relied on the agreed facts in the joint scheduling Memorandum set out above.</p> <p><strong>In reply to the issue of</strong> <strong>whether the Defendant occasioned financial loss to the Plaintiff as claimed in the Plaint?</strong></p> <p>The Defendant’s Counsel submitted that the Plaintiff had to prove that It lost the sum of Uganda shillings 921.883.306= claimed. If so, that the financial loss was caused by the Defendant and the Defendant was liable to refund the money lost. Thirdly, that the money has never been paid back up to date.</p> <p>The Plaintiff's witnesses testified that the Bank's financial loss occurred as a result of the Defendant authorizing direct credit entries on the above mentioned customers' Bank Accounts; whereby the several cheques drawn on the said Accounts had not been arranged for; and were therefore suspended in the Suspense Account No. 1725 (Exhibit P10); which was subsequently debited, and the cheques later returned unpaid; when actually the funds had already been withdrawn from the beneficiary's account. The irregularity led to the loss of Uganda shillings 921,883,306/=; which the Defendant has to pay back. The said Suspense Account Statement for the period 1st February 2001 to 5th April 2002 has a debit balance of <strong>Uganda shillings</strong> <strong>636.826.625/= </strong>only by the end of that period<strong>. </strong>In paragraph 12 of his Written Statement; <strong>PW 2 Oryema; </strong>explained that when the cheques were received from Bank of Uganda; they were debited on the Suspense Account by <strong>the Current Account Manager; with the approval and authority of the Bank Manager; </strong>pending payment, if the customer deposited sufficient funds on this Account within two (2) days.<strong> PW1 Kigongo Patrick; </strong>admitted that at the material time in issue; he was the Current Accounts Manager under whose docket the Suspense Account fell. He admitted in cross-examination to <strong>"authorizing" </strong>the debiting of the Suspense Account as stated by Mr. Oryema; but added that thereafter, he had to get <strong>"the approval" </strong>of the Branch Manager, the Defendant. Both Mr. Oryema and Kigongo did not adduce any signed approval by the Defendant of the debiting of the Suspense Account to support their claim. The endorsement would have rendered credibility to their testimony on the balance of probabilities. In absence of this evidence, liability for debiting the Suspense Account lies with the said Mr. Kigongo Patrick. In her evidence, <strong>PW 3 Addah T. Wegulo; </strong>gave staggering figures of the alleged financial loss, basing herself on <strong>Exhibit P 1 </strong>(A Memorandum of Understanding and acknowledgement signed by the Defendant on 2nd May 2002; which indicates the 1st sum as Uganda shillings  425.059.191/=. The second amount is written in exhibit P12in the statement of Al Haji Abdi dated 13th February 2002 and page 2 thereof and is Uganda shillings 600.295.140/=; however, the Defendant explained that he signed these documents under duress; and he even broke down in tears during his testimony; when he recalled the torture/trauma he went through at the material time. The aggregate sum in both Exhibits is Uganda shillings 1,025,318,331/=, over and above Uganda shillings 921,883,306/=; claimed in the Plaint. PW3 claimed that the <strong>Defendant</strong> made part payment of Uganda shillings 25,000,000/=; which would thereby reduce the figure to Uganda shillings 1,000,318,331/=; which also is inconsistent with the sum of Uganda shillings 921,883,306/= claimed in the Plaint.</p> <p>The Defendant denied ever making the said payment; and the Plaintiff's witnesses did not adduce any cheque or any proof of payment of the said Uganda shillings 25,000,000/= to the Bank by the Defendant; or his Bank Statement to prove that his Account was debited with the said sum of Uganda shillings 25,000,000/=. The witnesses did not adduce any Financial Statement from Bank of Uganda; or the Plaintiff's Bank Account, to prove that the Bank. incurred any financial loss; although the Internal Auditor <strong>(PW 4); </strong>in paragraph 7; of her Written Statement, claimed that the Bank's Account with Bank of Uganda was allegedly overdrawn without receipt of appropriate credits from the customer's Accounts. The witnesses did not tender to Court the Bank's Annual Balance<br /> Sheet to prove the alleged loss of Uganda shillings 921.883.306/= claimed.</p> <p><strong>Whether the Defendant caused the financial loss</strong></p> <p>The Defendant’s Counsel further submitted that the Plaintiffs' witnesses testified that the affected unpaid cheques belonged to the "Defendant's sons" namely; Hussein Ali, Bossi Ali, and Hassan AIi; who were Bank customers at the material time; and also one Raphael Drichi. That the Defendant through fraud and collusion with his "said sons"; siphoned money from the Bank; thereby occasioning the financial loss. They relied on Exhibits of various cheques of the said customers which were allegedly cleared without supporting credit on the Accounts; i.e. <strong>Exhibit (P4a-o) </strong>and the list of cheques from January 2001 to July 2001; through the Clearing House <strong>Exhibit P6. </strong></p> <p>The Defendant’s Counsel submitted that the Plaintiff failed to prove fraud alleged in paragraph 20 (I - V) of the amended Plaint. They contend that due to the unwillingness of the Defendant to pay; the Plaintiff filed H.C.C.S. No. 569 of 2002; against the Defendant for payment of the outstanding amount which the Plaintiff lost through his fraudulent acts. The suit proceeded ex parte and was decided against the Defendant. Judgment was set aside on the 23rd of August 2013 In High Court Misc. Application No. 362 of 2016 <strong>(Exhibit P11); </strong>hence the allegations of fraud were not exhaustively heard by Court at the material time when the Ex parte Judgment was made in 2005 and by the time of Judgment. The money had already been paid back by the customers between the period 2002 and 2003 which information the Plaintiff was obliged to give Court which it concealed. It was therefore unfair to conclude that there was a financial loss in 2005.</p> <p>The Defendant was clear that the actions complained of were authorized by the General Manager, Mr. Khamel Kallas (by then); because he had long before, on 17.03.2000; refused him to over draw customers' accounts without prior instructions or consent from management. <strong>(Exhibit D16) lf </strong>he had acted fraudulently in<br /> disobedience, he would not have been appreciated on 27th of March 2002 in <strong>(Exhibit D17) </strong></p> <p>The allegations of fraud mean that the Defendant knew, or had reasons to believe that his acts or omission would cause financial loss to the Bank (if any). However, according to the Judgment of Buganda Road Court admitted as exhibit D9 at page 4 thereof; the Court found as a fact that Patrick Kigongo had a direct interest in the cheques; which was shown by his later attempts to put pressure on the customers to pay. There was evidence by his visits to their Petrol Stations to cause them to pay; which he admitted in his cross-examination. It showed he had realized his own mistake. Court found that no act or omission was attributed to the accused (Defendant herein) knowing or having reason to believe that it would cause financial loss.</p> <p>Counsel submitted that the prosecution was just simply relying on oral allegations of Patrick Kigongo; who was his co-accused until the case was withdrawn against him by the DPP. However, the Defendant; and both Oryema and Kigongo testified that for any clearance of payment, the transaction (Debit Voucher/Cheque) had to bear signatures of at least two (2) signatories. In the instant case, the said questioned cheques in issue did/do not bear the signature of the Defendant; and the Defendant testified that any cheque bearing his signature and any other signatory; was actually honored, which was not controverted. Counsel submitted that the Bank did not suffer the alleged financial loss as its named customers repaid the money.</p> <p>       </p> <ol> <li><strong>Hussein Abdi, made a statement tendered as Exhibit P 9;</strong> to the effect that he accepted the cheque (s) which he issued drawn on his Account No. 446230 and 224302; totaling Uganda shillings 384,438,140/=; and undertook to pay the said money to the Bank according to the agreed schedule with the Bank dated 20th October 2003 for the period 29th May 2001 to 31st December 2002. <strong>The Statement of Account for Hussein An - Account No. 446230 (Exhibits P5 and P8);</strong> indicates that he effected monthly payments of Uganda shillings 15,000,000/= on 31st July 2001; 28th September 2001; 31st October 2001; 30th November 2001; and 14th December 2001 on 13th May 2002 {Uganda shillings 10.000.000/=); and on 31st July 2002; he paid Uganda shillings 156.396.209/=; and the only outstanding debit balance as on 31st December 2002 was Uganda shillings 13,685,426/=. In its concluding note; the Bank indicates that this was the correct and accepted financial status of this Account as on 31st of December 2002.</li> <li>The Bank Statement of Account of Raphael Drichi; also tendered by the Plaintiff as Exhibit P 11 in respect of Account No. 447161; for the period of 31st of October 2001 to 15th April 2003 also indicates that on 13th May 2002; Drichi paid to the Bank Uganda shillings 15,000,000/=; and paid Uganda shillings 156,194,949/= on 31st July 2002; and made further payment of Uganda shillings 14,785,164/= on 15th April 2003; thereby leaving the Account in zero (O) balance,</li> <li>The Bank statement of Bossi Ali's Account No. 447146 (Exhibit p.7) dated 20th Oct 2003; for the period of 17th Oct, 2001 to 30th September, 2003; clearly indicated that as on 30th September. 2003; it was even in credit balance of Uganda shillings 73,335,000/=.</li> <li>It was therefore incumbent on the Plaintiff Bank to produce to Court the Bank statement of the other affected customer, Hassan Ali; to prove how much money is outstanding, if any. However, PW 4 Addah T. Wegulo; said they cannot trace Hassan Ali's file.</li> </ol> <p> </p> <p>The Plaintiff Bank should not shift the burden of proof to the Defendant; since it is the one in exclusive possession of its customers' information; and on the balance of probabilities; it is evident that the said customers were paving back; and indeed they paid the Bank's money which they took. The Plaintiff Bank is aware that the said customers paid back its money opted not to pursue them any further for recovery of the said money in this Suit.</p> <p>The Defendant’s Counsel submitted that with the above available evidence; it is clear that the concerned individual customers were responsible for their accounts, and not the Defendant; and indeed they paid the Bank its money; which the Bank duly acknowledged; and the Plaintiff Bank cannot make further claims against the Defendant; as this tantamount to unjust enrichment and extortion.</p> <p>He prayed that the Plaintiff's suit should fail and be dismissed with costs.</p> <p> </p> <p><strong>REJOINDER SUBMISSIONS</strong></p> <p><strong>In rejoinder on Issue 1 Counsel submitted that </strong><strong>the Defendant occasioned financial loss to the Plaintiff as claimed in the plaint.</strong> He further submitted that the Defendant in his written submissions wrote that by the time an ex parte Judgment in Civil Suit No. 569 of 2002 was made, the Defendant had already paid the money and that the Plaintiff has this information but concealed it and so it was unfair to conclude that there was a financial loss. He contended that those allegations are not true. The Defendant committed the fraudulent acts through several accounts that is; A/C No 446230 under the names of Hussein Ali Abdi, also operating A/C No 224302 under the title New Kireka Agip Petrol station. There was another account No 447181 that was overdrawn and in the names of Raphael Drichi. There was account number 447146 operated by Bosi Ali and another account in DFCU Bank A/C No 2501606400 in the names of Lucky and Sons Limited operated by Bosi Ali. The relationship between the Defendant and the several account holders was clearly brought out in earlier submissions. A Memorandum of Understanding Exhibit P1 and Defendant's statement Exhibit P12 were freely signed by the Defendant in 2002 and was exhibited in court. In both documents, the Defendant acknowledged that he authorized direct credit entries on the several accounts mentioned. Further, in a statement made by the Defendant on 13th May 2002, Exhibit P12 it was shown that a total amount of Uganda shillings 600, 295, 141/= (shillings six hundred million two hundred ninety five thousand, one hundred forty one). The Defendant undertook to refund the said amounts of money under a schedule which was to be agreed upon by the parties. We have already shown in our submissions in chief that the allegations of torture and duress in the process of signing the two documents is a lie since they were signed on different dates 11 days apart. While no signed approval by the Defendant of the debiting of the Suspense Account was produced, it was stated by PW1 Mr. Kigongo that the approval was by computer. If the liability for debiting the Suspense Account lay with PW1, then the Defendant would not have held onto the cheques that were dishonored. Evidence was brought to show that cheques in relation to the account of the Defendant's children mentioned in the main submissions as having been reflected were collected by the Defendant. The communication from the General Manager to the Defendant to stop overdrawing customer's accounts was limited only to that activity. The Memorandum from the General Manager was not about the suspended account No. 1725 where most of the fraud took place. It did not affect his activities on that account which were discovered in May 2002. It was submitted by the Defendant that the Plaintiff did not produce its annual balance sheet to prove the alleged loss claimed. A balance sheet shows the net profit or loss by an institution. The Defendant has not shown how such a balance sheet would have shown the particular loss occasioned by him.</p> <p> </p> <p><strong>Judgment</strong></p> <p> </p> <p><strong>Resolution of issue No. 1</strong></p> <p>I have carefully considered the Plaintiffs case as disclosed in the pleadings, the evidence in support of the claim, the defence as disclosed in the pleadings and evidence as well as proceedings in Criminal Case Number 73 of 2002 Buganda Road Magistrates Court against the Defendant. The entire suit rests on the assertion that the Defendant caused financial loss to the Plaintiff amounting to Uganda shillings 921,883,305/=.</p> <p>The first issue is <strong>whether the Defendant caused financial loss to the Plaintiff?</strong></p> <p>I have carefully considered the submissions of the Plaintiff’s Counsel as well as that of the Defendant’s Counsel. The controversy does not deal with the question of whether the Plaintiff did not lose money at one point because some of these aspects are conceded to which is the extra ordinary reply of the defence that the money had been paid back. For evidence the Defendant relies on the burden of proof as well as evidence in criminal proceedings against the Defendant where he was acquitted. The implication of this approach is that even if the Plaintiff maintains that the Defendant acknowledged his indebtedness and there are documents in support of this, the corollary issue of whether the acknowledgement of indebtedness of the Defendant was acquired through duress can be circumvented if the Defendant has evidence that the monies, the subject matter of the suit were actually paid back. The second approach of the Defendant attributes liability for any financial loss to another party who testified as a witness.</p> <p>For purposes of consistency and effect of resolution of issues I will start with the question of fact as to whether financial loss had been caused to the Plaintiff before dealing with the other issues of whether acknowledgement was obtained by means of duress or whether monies had been paid back by the beneficiaries of the alleged fraud. Where there is no financial loss proved, then the issue of whether there was fraud need not be resolved as it is the foundation of the assertion that the money was obtained wrongfully.</p> <p>The memorandum of understanding dated 2nd of May 2002 between the Defendant and the Plaintiff was admitted in evidence as exhibit P1. In the memorandum of understanding the Defendant is described as a debtor and the Plaintiff described as a bank. It is executed by the Defendant and witnessed by the Plaintiff’s Wegulo T Addah. The memorandum reads among other things in the recitals that the Defendant guaranteed repayment of the overdraft facility granted by the bank to Mr. Hassan Ali and whose account by that time was in debit by Uganda shillings 87,734,033/=. Secondly, on various occasions, the debtor authorized direct credit entries into account number 447181 and 446 2307 operated by Rafael Drichi and Hussein Abdi respectively against cheques which were later bounced and have never been made good. The accounts are in debit by Uganda shillings 171,194,949/= and Uganda shillings 166,130,209/= respectively. It also provides that the debtor acknowledges that he is liable to settle the said the accounts and committed himself according to the terms of the repayment.</p> <p>The debtor committed himself to pay Uganda shillings 30,000,000/= on account number 446230 in the names of Hussein Abdi, Uganda shillings 30,000,000/= on account number 447181 in the names of Rafael Drichi and Uganda shillings 10,000,000/= on account number 446179 in the names of Hassan Ali in the next week and in any case not later than the 10th of May, 2002. It is further provided that immediately thereafter, to negotiate with the bank a schedule of paying the balance of the said account that is Uganda shillings 355,059,191/= only. Lastly should the management of the bank thereafter establish that while he was in office similar direct credit entries were made on other accounts, the debtor would be responsible for the settlement there of. Last but not least, the bank reserved the right to take legal action against the Defendant in the event of failure to comply with his commitments under the agreement.</p> <p>Soon thereafter on 13th May, 2002 the Defendant wrote a statement acknowledging that for the period February 2001 to April 2002 he received several cheques drawn on account number 446230 in the names of Hussein Ali the total of which is Uganda shillings 368,889,500/= which had been returned unpaid within three days for they had not been arranged for. He however suspended the cheques in a suspense account and as a result Tropical Africa bank suspense clearing account was debited with the said amount. He further wrote that the same was done within the same period for the cheques whose value was Uganda shillings 156,357,000/= drawn on Account Number 447146 in the names of Mr. Bossi Ali and cheques in the value of Uganda shillings 15,548,640/= drawn on Account Number 22402 the names of New Kireka Agip Petrol Station operated by one Mr. Hussein A Abdi. Furthermore on 26th March, 2002 he received DFCU cheque number 207540 for Uganda shillings 20,500,000/= and cheque number 207535 in the sum of Uganda shillings 31,000,000/= drawn on account number 250106400 in the names of Lucky &amp; sons Ltd operated by Mr. Bosi Ali for the benefit of the new customer Agip Natete Service Station. The cheques were directly credited on the customer's account and were later returned unpaid but the funds had already been withdrawn leaving the bank to bear the loss.</p> <p>All the cheques were kept by Mr. Kigongo. He handed them over to the Defendant in March 2002. That is when he knew the exact total of the money withdrawn from the accounts without being arranged for. He kept the cheques up to 3rd May, 2002 and the operators of these accounts are his sons.</p> <p>In the circumstances he wrote that he understood and acknowledged that he was responsible for financial loss caused through the above wrongful banking transactions and undertook to pay the sums amounting to Uganda shillings 600,295,140/= to the Plaintiff bank. He pledged to sell certain properties to settle his indebtedness to the Plaintiff. This statement was admitted in evidence as exhibit P12.</p> <p>For his part in exhibit P9 Hussein Ali by a written statement acknowledged cheques drawn on his account number 44620 and 224302 in the business name of the New Kireka Agip Petrol Station. The cheques were honoured when there were no funds on those accounts. The total amount received without there being any amount on the account was Uganda shillings 334,438,140/=. They received the value of each cheque and undertook to pay the money to the bank according to an agreed schedule.</p> <p>As far as acknowledgement of indebtedness is concerned, the matter before the court has to be determined according to the law. Before looking into the merits of the document acknowledging liability to the Plaintiff, the Defendant raised a matter of fact that needs to be established as to whether the acknowledgement was procured through duress. However before this can be resolved, it is pertinent that the Plaintiff's suit is examined in light of the earlier pleadings and evidence to be compliant with the principle that a party cannot without the leave of court depart from previous pleadings under Order 6 rule 7 of the Civil Procedure Rules which provides that:</p> <p>"No pleading shall, not being a petition or application, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading that pleading."</p> <p>The question of the judgment which has been set aside is material in so far as evidence was led in support of the previous pleading. The previous suit was brought against five persons namely Ali Hajj Abdi (the sole Defendant in this suit, Hussein Ali Abdi, Bossi Ali, Lucky &amp; Sons Ltd and Rafael Drichi as Defendants. The second Defendant Mr. Hussein Ali Abdi was sued as a customer of the Plaintiff operating current account number 446230 and also a son of the first Defendant who is the Defendant to the current suit. Secondly, the third Defendant is another customer (Bossi Ali) and also son of the first Defendant and operates account number 447146 with the Plaintiff bank. Thirdly, the fourth Defendant was described as a customer of the Plaintiff operating current account number 447181. The claim against the Defendants was for payment of Uganda shillings 912,883,306/= that was alleged to have been fraudulently received from the bank by the second, third and fourth Defendants and or their creditors with the aid of the first Defendant who acted in breach of his fiduciary duty to the Plaintiff thereby occasioning loss to the Plaintiff bank. It is clearly alleged that at all material times the Defendant in this suit Al Hajji Abdi was acting branch manager of the Plaintiff’s Kampala branch. Other references to the cheques and the amounts are disclosed in the amended plaint where it is averred that the first Defendant suspended the cheques in the suspense account and as a result the Plaintiff’s suspense clearing was debited with that amount and the cheques and were later returned unpaid. On or about 26thMarch, 2002 the first Defendant received two cheques from DFCU bank amounting to Uganda shillings 59,500,000/= for the benefit of New Agip Natete Service Station. The Plaintiff's staff discovered these irregularities sometime in May 2002 and the first Defendant bound himself by memorandum of understanding with the Plaintiff to make good the losses that had been incurred by the Plaintiff. Following the memorandum of understanding the Plaintiff’s staff discovered that there were other losses that had been caused by the first Defendant and the first Defendant admitted that he was liable to the Plaintiff according to a statement made before the manager for legal services Mrs. Addah T Wegulo. Lastly, it is averred that sometime in June 2002 the first Defendant paid Uganda shillings 25,000,000/= in partial satisfaction of the undertaking but later on failed or neglected or refused to honour his undertaking that prompted the Plaintiff to file this suit. The claims in the previous pleading was that the second Defendant was to pay according to this suit a sum of Uganda shillings 550,560,349/= outstanding on his accounts with interest thereon. Secondly, the third Defendant was to pay to the Plaintiff a sum of Uganda shillings 156,357,000/= outstanding on his account with the Plaintiff with interest thereon. Thirdly, the fourth Defendant was to pay the Plaintiff a sum of Uganda shillings 59,500,000/= being the value of its bounced cheques with interest thereon at bank rate from the date of the fraud till payment in full. Fourthly, the prayer against the fifth Defendant was to pay a sum of Uganda shillings 171,194,949/= outstanding on the account with the Plaintiff with interest thereon at bank rate from the date of the fraud until final settlement.</p> <p>In the alternative, it was prayed that the first Defendant pays to the Plaintiff the sum of Uganda shillings 912,883,306 outstanding on the accounts of the second up to the fifth Defendants. Secondly the Plaintiff prayed for general damages against the first Defendant for breach of contract and for costs of the suit against all the Defendants. The alternative claim against the first Defendant is a total of the claims against the second, third, fourth and fifth Defendants.</p> <p>A written statement of defence was filed by the first, second, third, fourth and fifth Defendants. The entire claim was denied and with regard to the acknowledgements the first Defendant averred that the acknowledgement was obtained by the general manager acting with officials of the Chieftaincy of Military Intelligence and he was compelled to sign under duress.</p> <p>The last paragraph of the statement reads as follows:</p> <p>"I also undertake that should it be discovered that further loss has been caused to the bank through similar wrongful transactions or accruing on overdrawn accounts, the repayment of which was guaranteed by me, I would take full responsibility for making good the resultant loss suffered by the bank.</p> <p>These two documents need to be considered on their own merits. Specifically exhibit P1' purports to be a memorandum of understanding and acknowledgement dated 2nd of May 2002. This first document in the recital paragraph (a) provides that the Defendant guaranteed the repayment of an overdraft facility granted by the bank to Mr. Hassan Ali. Secondly, on various occasions, the Defendant authorised direct credit entries into certain accounts. The total amount acknowledged under this arrangement is Uganda shillings 87,734,033/=, Uganda shillings 171,194,949/=, Uganda shillings 166,130,209/= respectively giving a total of Uganda shillings 425,059,191/=.</p> <p>The second document which is the statement made on 13th of May 2002 is in addition to the acknowledgement. It relates to the period February 2001 to April 2002 where it is written that he received several cheques drawn on accounts 446230 in the names of Hussein Ali Abdi totaling to Uganda shillings 368,889,500/=. Secondly other cheques in the value of Uganda shillings 156,357,000/= on account number 447146 in the names of Mr. Bossi Ali and the cheques in the value of Uganda shillings 15,548,640/= drawn on account number 224302 in the names of New Kireka Agip Petrol Station operated by Mr. Hussein Abdi.</p> <p>In addition the Defendant acknowledged that on 26th March, 2002 he received DFCU cheques number 207540 and 207535 in the amount of Uganda shillings 28,500,000/=.</p> <p>The total amount acknowledged is Uganda shillings 600,295,140/=.</p> <p>The total amounts in the two categories written above is Uganda shillings 1,025,354,331/=. From the Plaintiff's evidence, part of this money was paid off leaving the amount claimed in the plaint of Uganda shillings 912,883,306/=. The question of fact remains as to whether this amount is still outstanding according to the Plaintiffs own documents.</p> <p>The plaint claiming this amount was filed on 31st October, 2002. The claim relates to 4 categories of accounts. The first category concerns Hussein Ali Abdi.</p> <p>In relation to Hussein Ali Abdi, it is averred that he managed account number 446230 and on various occasions in the year 2001 was the beneficiary of direct credit entries amounting to Uganda shillings 166,130,209/=. Secondly, he was the beneficiary in the amount of Uganda shillings 368,889,500/= in cheques. These two figures amount to Uganda shillings 535,019,709/=. As far as documentary evidence is concerned the Plaintiff adduced in evidence exhibit P9 which is a statement by Hussein Ali Abdi in which he acknowledged that he was the beneficiary of cheques totaling to Uganda shillings 384,438,140 and he undertook to pay the money to the bank according to an agreed schedule. I have also examined the statement of account exhibit P5 relating to account number 446230 in the names of Mr. Hussein A Abdi. The statement runs from 29th May, 2001 up to 31st December, 2002. According to the amended plaint and paragraph 7 thereof on various occasions in 2001 the Defendant authorised direct credit entries on to account number 446230 operated by Hussein Ali Abdi on the basis of cheques issued by Hussein Ali Abdi to the tune of Uganda shillings 166,130,209/= that had not been cleared. Secondly, in paragraph 9 of the amended plaint it is written that between February 2001 and April 2002 the Defendant received several cheques drawn on account number 446230 in the names of Hussein Ali Abdi totaling to Uganda shillings 368,889,500/=. Furthermore, the Defendant received cheques totaling to Uganda shillings 15,548,640/= drawn on account number 224302 in the names of Hussein Ali Abdi trading as New Kireka Agip Petrol Station. For the moment we are not concerned about account number 224302 but concerned with account number 446230. The amounts on these two categories relating to direct credit entries and cheques which had no cover amount to Uganda shillings 535,019,709/=, the exact amount in the original plaint detailed above.</p> <p>The material matter of fact is that these amounts were due by April 2002. The losses were discovered according to paragraph 16 of the amended plaint sometime in May 2002.</p> <p>With the above averments in perspective, exhibit P5 which relates to account number 224302 shows that by 30th of April 2002 the account was in debit by Uganda shillings 166,130,209/= which is the exact amount attributed to direct credits. On 31st July, 2002 the said account was credited with an amount of Uganda shillings 156,396,209/= leaving a debit balance of 8,027,050/= Uganda shillings only. The end of the statement is 31st December, 2002 leaving a debit balance of 13,685,426/=. The statement has at the end of it some super imposed hand written amounts which do not relate to the printed statement and I will not refer to the same. The amount of Uganda shillings 156,396,209/= is part of the claim in the plaint. By the time that amount was paid, the plaint had not been filed and there is no explanation whatsoever as to why the Defendant is being charged with this amount which was clearly offset by 31st July, 2002. Exhibit P5 is the Plaintiffs own document and is the statement of account which is the material statement in issue.</p> <p>Secondly, exhibit P9 relates to the other amount attributed to cheques which Mr. Hussein Ali Abdi undertook to pay according to the agreed schedule. The date of this statement is not disclosed. It amounts to Uganda shillings 384,438,140. Again this is the amount referred to in part of the plaint that Mr. Hussein Ali Abdi between February 2001 and April 2002 issued cheques received by the Defendant drawn on account number 446230 in the names of Hussein Ali Abdi totaling to Uganda shillings 368,889,500/=. The variation in the two amounts is negligible but they relate to the same category of claim which has been made in the plaint. The claim in the plaint is less than the one acknowledged by Mr. Hussein Abdi Ali in exhibit P9. If these two amounts are knocked off, what happens? I further note that the statement of the Defendant acknowledging liability was made in May 2002.</p> <p>In summary, the following facts have been proved in evidence and starting with the memorandum of understanding dated 2nd of May 2002 between the Plaintiff and the Defendant, the following facts are much namely:</p> <p><strong>The Evidence</strong></p> <p>PW4 Addah T Wegulo testified as the manager legal services/bank secretary of the Plaintiff and in paragraph 18 of her written testimony, the account number 446230 operated by Hussein Ali Abdi was overdrawn by Uganda shillings 166,130,209/=. Secondly account number 447181 operated by Raphael Drichi was overdrawn by Uganda shillings 171,194,949/=. This was also the acknowledgement in the memorandum of understanding exhibit P1. Finally Uganda shillings 87,724,033/= was guaranteed by the Defendant for repayment of a loan to Hassan Ali.</p> <p>In paragraph 23 PW4 testified that the Defendant was according to exhibit P1 supposed to provide the bank with a repayment schedule for the debit balances. This was in respect of account number 446 230 for Uganda shillings 166,130,209/= and account number 447181 for Uganda shillings 171,194,949.</p> <p>The second batch of evidence relates to exhibit P12 which is a statement by the Defendant. For the moment I do not need to refer to this evidence. What is material is that the above amounts total to Uganda shillings 337,325,158/=. When it is added to the second amount of Uganda shillings 600,295,140/= in relation to the statement exhibit P12, it adds up to the entire claim in the plaint. I will therefore start with the first category of claim comprising of the two amounts acknowledged in exhibit P1.</p> <ul> <li>The Defendant guaranteed repayment of the overdraft granted by the bank to Mr. Hassan Ali in the sum of Uganda shillings 87,734,033/=. This amount is not part of the amount claimed in the plaint as I shall show here under.</li> <li>The Plaintiff acknowledged direct credit entries on account number 447181 operated by Raphael Drichi in the amount of Uganda shillings 171,194,929/=. Exhibit PE 11 which is the account statement of Drichi Raphael proves that the account statement for Account No. 447181 commences 31st October, 2001 and ending 30th April, 2002. It was overdrawn by an amount of Uganda shillings 171,194,949 by the end of 30th April, 2002. On the 13th of May 2002 cash was received of Uganda shillings 15,000,000/=. This is the same date when the Defendant made a statement which is in dispute exhibit P 12. On 31st June, 2002 cash was deposited of Uganda shillings 156,194,949/= leaving a debit balance of Uganda shillings 8,080,868/=. First of all this was before the suit was filed on 31st October, 2002. Finally on 15th April, 2003 after the suit had been filed, the account was credited with cash of Uganda shillings 14,785,164/= leaving zero balance which ends the statement. By the time the suit was filed the account was in debit by only Uganda shillings 8,080,868/= and not the claim of Uganda shillings 171,194,949/= which was the debit on 30th April, 2002.</li> <li>Secondly, with regard to the amount of Uganda shillings 166,130,209/= and account number 446230 in the names of or operated by Hussein Abdi, according to exhibit P5, by 30th April, 2002 it was in debit by Uganda shillings 166,130,209/= which is the exact amount claimed in the plaint. On the 13th May, 2002 by cash deposit of Uganda shillings 10,000,000/=, the amount was reduced to 156,130,209/=. Secondly, by another cash deposit on 31st July, 2002 Uganda shillings 156,396,209/= was paid leaving a debit balance of Uganda shillings 8,027,050/=. By 31st December, 2002 the account had grown into debit of 13,685,426/= on account of interest.</li> <li>Last but not least, even if the status quo changed after the suit was filed in October 2002, subsequently on 18th November, 2014, the plaint was amended and in paragraph 3 of the amended plaint, the Plaintiff maintains that the claim against the Defendant is for payment of Uganda shillings 921,883,306/= which was fraudulently siphoned from the Plaintiff bank through various accounts with the participation and/or collusion of the Defendant. In other words, the allegation remains exactly the same and the payments referred to above were not taken into account.</li> <li>It follows that the Plaintiff's suit in respect to the memorandum of understanding exhibit P1 is misconceived in so far as it is claiming a total of Uganda shillings 337,325,158/=.</li> </ul> <p>The second category of payment relates to the amount of Uganda shillings 600,295,140/=. According to PW4 the Defendant was fraudulent through payment of cheques drawn against Hussein Ali account in the sum of Uganda shillings 368,889,500/= and account number 446230 (see paragraph 25 of her written testimony). Secondly, the Defendant would retain cheques and the Plaintiff suspense account was debited. Customers were paid and received money when there was no money on the account. In paragraph 26 of her written testimony, she testified that the process was in respect of account number 447146 operated by Bossi Ali. With regard to this account, the Plaintiff was defrauded of Uganda shillings 156,357,330/=.</p> <p>In paragraph 27 of her testimony, she testified that the two cheques exhibit P4 K drawn on account of Kireka Agip Petrol Station operated by Hussein Abdi Ali led to a loss of Uganda shillings 15,548,640/=.</p> <p>In paragraph 28 of her written testimony two cheques drawn by Bossi Ali drawn on DFCU bank in favour of the New Agip Natete Service Station, a customer of the Plaintiff exhibit P4 (o), led to a loss of Uganda shillings 28,500,000/= and Uganda shillings 31,000,000/= respectively. The total amount concerning these transactions was Uganda shillings 600,295,140/=. This second category of the loss to the Plaintiff is supposed to be proved by the Defendant statement exhibit P12 made on 13th May, 2002. The breakdown of the second batch said to be acknowledged by the Defendant in exhibit P12 is as follows:</p> <ul> <li>Hussein Ali Uganda shillings 368,889,500/=</li> <li>Bosi Ali Uganda shillings 156,357,313/=</li> <li>Kireka Agip Petrol Station Uganda shillings 15,548,640/=.</li> <li>Bosi Ali two cheques drawn on DFCU bank and paid to New Agip Natete Service Station Uganda shillings 28,500,000/= and Uganda shillings 31,000,000/=.</li> </ul> <p>The subtotal for the second batch of alleged financial loss is Uganda shillings 600,295,417/=. If this is added to the first category in relation to the memorandum of understanding exhibit P1 amounting to Uganda shillings 337,325,156/=, one gets a total amount of Uganda shillings 937,620,627/=. It could be a typographical error or a problem with the calculations of the total amount. However I agree with the Plaintiff's Counsel that the court can go with a lesser amount that is not the object of these analyses for the moment. The point to be made is that the entire claim of the Plaintiff rests on two documents namely exhibit P1 and exhibit P 12. This is further corroborated by the testimony of PW5 Anne Nandawula an internal auditor.</p> <p>PW5 further testified that the un-reconciled cheques for one month amounting to Uganda shillings 600,292,128/= this was for the period between January 2000 and April 2002 according to the account number 1725 in which the Plaintiff's account was debited by the bank of Uganda. She made the report exhibit P13. She made the report on 12th June, 2002. Again this was before the suit was filed on 31st October, 2002. I have accordingly examined exhibit P13 which is the internal auditor's report.</p> <p>Exhibit P13 demonstrates more than anything that the entire amount of Uganda shillings 600,292,148/= which comprises the entire remaining claim of which exhibit P 12 is the statement of the Defendant comprises of several cheques issued to the following persons namely as follows:</p> <ol> <li>1st February, 2001 cheque number 70349 account number 224302 in the names of new Kireka Agip petrol station the sum of Uganda shillings 8,904,508/=.</li> <li>On 6th February, 2001 cheque number 123492 account number 446230 in the names of Hussein A Abdi the sum of Uganda shillings 26,022,000/=.</li> <li>On 12th February, 2001 account number 446230 in the names of Hussein Abdi was debited with the amount of Uganda shillings 29,795,000/=.</li> <li>On 14th February, 2001 by issuing a cheque account number 446230 was debited with the amount of Uganda shillings 17,430,000/=.</li> <li>On 15th February, 2001 account number 446230 in the names of Hussein Ali was debited with an amount of Uganda shillings 28,350,000/=.</li> <li>On 23rd February, 2001 December the account of Hussein Ali was debited with an amount of 17,500,000/=.</li> <li>On 27th February, 2001 the same account of Hussein Abdi Ali was debited with an amount of Uganda shillings 26,000,000/=.</li> <li>On 27th February, 2001 the same account of Hussein Abdi Ali was debited with an amount of Uganda shillings 17,800,000/=.</li> <li>On 1st March, 2001 the same account of Hussein Abdi Ali was debited with an amount of Uganda shillings 25,700,000/=.</li> <li>On 2nd March, 2001 the same account of Hussein Abdi Ali was debited with an amount of Uganda shillings 19,575,000/=.</li> <li>On 7th March, 2001 the same account of Hussein Abdi Ali was debited with an amount of Uganda shillings 17,200,000/=.</li> <li>On 9th March, 2001 account number 224602 in the names of New Kireka Agip Petrol Station was debited with an amount of Uganda shillings 6,644,140/=.</li> <li>On 9th March, 2001 the account of Hussein Abdi Ali was debited with an amount of Uganda shillings 19,575,000/=.</li> <li>On 9th March, 2001 the account of Hussein Abdi Ali was debited with the amount of Uganda shillings 12,250,000/=.</li> <li>On 15th March, 2001 the account of Hussein A Abdi was debited with an amount of Uganda shillings 23,650,000/=.</li> <li>On 16th March, 2001 the account of Hussein Abdi Ali was debited with an amount of Uganda shillings 18,100,000/=.</li> <li>On 21st March, 2001 account number 446230 in the names of Hussein Abdi Ali was debited with the amount of Uganda shillings 17,200,000/=.</li> <li>On 22nd March, 2001 account number 44620 in the names of Hussein Abdi Ali was debited with an amount of Uganda shillings 19,575,000/=.</li> <li>On 26th March, 2001 the account of Hussein Abdi Ali was debited with the amount of Uganda shillings 9,327,500/=.</li> <li>On 20th March, 2001 the account of Hussein Abdi Ali was debited with an amount of Uganda shillings 23,830,000/=.</li> <li>On 7th November, 2001 the account number 446146 in the names of Bosi Ali was debited with an amount of Uganda shillings 26,115,000/=.</li> <li>On 12th November, 2001 account number 447146 in the names of Bosi Ali was debited with an amount of Uganda shillings 31,374,000/=.</li> <li>On 14th November, 2001 account number 447146 in the names of Bosi Ali was debited with an amount of Uganda shillings 31,410,000/=.</li> <li>On 16th November, 2001 account number 447146 in the names of Bosi Ali was debited with an amount of Uganda shillings 18,067,500/=.</li> <li>Again on 16th November, 2001 account number 447146 in the names of Bosi Ali was debited with an amount of Uganda shillings 18,067,500/=.</li> <li>On 30th November, 2001 account number 447146 in the names of Bosi Ali was debited with an amount of Uganda shillings 31,320,000/=.</li> <li>On 3rd April, 2002 account number 224343 in the names of Lean On Systems (U) Ltd was debited with the amount of Uganda shillings 28,500,000/=.</li> <li>Finally on 4th April, 2002 account number 224343 in the names of Lean on Systems (U) Ltd was debited with an amount of Uganda shillings 31,000,000/=.</li> </ol> <p>According to the calculations in exhibit P13 the total amount of the above transactions is Uganda shillings 600,292,148/=. The report of PW5 shows that the Plaintiff bank operated various clearing accounts for local and upcountry clearing of customer cheques. The inward clearing account No. 1725 is a suspense account which is debited with cheques from the clearing house, which subject to one of the following reasons cannot be debited directly to the customer’s account. The first ground is where the funds on the customer account are not enough. Secondly, it is not debited where payment of the cheque has been stopped by the account holder. Thirdly, where it requires confirmation from the account holder before payment of the cheque can be effected. Where the conditions are fulfilled, the account is credited and the customer’s account debited within two days. They discovered cheques totaling to about Uganda shillings 600,000,000/= which had not been reconciled for the period January 2000 to April 2002. In other words these cheques had not been reconciled with customers account and the customer’s account had not been debited. Yet the bank account with Bank of Uganda was debited with the amount on the cheque and the money paid to the beneficiary of the cheque.</p> <p>From my analysis this report was written in June 2002 and the suit was filed in October 2002. The intriguing question was why the customer’s account had not been debited? It meant that the account could not be debited after the cheque expired or there were no credit balance to cover the amount. What is even more intriguing is the fact that the Plaintiff filed the suit against Hussein Abdi Ali and Bosi Ali. The suit was initially filed against five Defendants. The first Defendant is the current Defendant Ali Haji Abdi as the first Defendant. This means that the Plaintiff sought to recover the money against the persons who issued the cheques leading to its own account being debited after it paid the beneficiaries of the cheques when the account holder had no money to cover the transaction.  The second Defendant was Hussein Ali Abdi. The third Defendant is Bosi Ali. The fourth Defendant is Lucky &amp; Sons Ltd. The fifth Defendant is Raphael Drichi. In fact the initial claim was for recovery of the entire amount of Uganda shillings 912,883,306/= against the second, third, fourth and fifth Defendants. It was only in the alternative that the entire amount was claimed against the first Defendant who is the current and only Defendant left.</p> <ul> <li>As against the second Defendant there was a claim of Uganda shillings 550,560,349/=.</li> <li>As against the third Defendant there was a claim of Uganda shillings 156,357,000/=.</li> <li>As against the fourth Defendant there was a claim of Uganda shillings 59,400,000/=.</li> <li>As against the fifth Defendant there was a claim of Uganda shillings 171,194,949/=.</li> </ul> <p>Alternatively the Plaintiff’s claim against the first Defendant who is the current Defendant is in the sum of Uganda shillings 912,883,306/= outstanding on the various accounts in the names of the other Defendants. The suit proceeded ex parte against all the Defendants. The suit against the fifth Defendant was withdrawn on 13th September, 2004 because the summons had expired without proper service. The suit was dismissed against the rest of the Defendants and judgment was entered against the first Defendant in the sum of Uganda shillings 876,540,298/= and Uganda shillings 10,000,000/= as general damages. This is the judgment that was set aside and the reason for setting aside the judgment against the first Defendant is contained in the ruling of this court and is that the Defendant was out of jurisdiction when the suit proceeded against him and service for that reason was not effective. He was out of jurisdiction for medical treatment.</p> <p>The state of affairs has led to an anomalous situation in which judgment was set aside in effect because it was issued against the first Defendant only. The suit against the rest of the Defendants had been dismissed with no order as to costs and for purposes of this suit no liability can at this stage be visited on the 2nd, 3rd, and 4th Defendants. That notwithstanding, the Plaintiff had a fresh opportunity to adduce evidence and in exhibit P9 produced a statement of Mr. Hussein Abdi Ali who acknowledged that he was aware of each of the beneficiaries of the cheques totaling to Uganda shillings 384,438,140/=. He undertook to pay the said sum according to an agreed schedule. He did not testify in this suit. What is interesting is that the amount acknowledged constitutes the biggest component of the Uganda shillings 600,292,148. Notwithstanding the difficulty of carrying out an audit, I have decided to add the sums of money in exhibit P 13 which is the auditor's report adduced in evidence by PW5, the internal auditor. Give or take the amount comes to about Uganda shillings 392,669,580/= (subject to errors of miscalculation) this is about the same amount acknowledged by Mr. Hussein Abdi Ali. Secondly, all the transactions leading to loss relate to account number 446230. In other words cheques issued were of this account.</p> <p>Exhibit P5 and P8 related to his account. The date of account printing was 20th October, 2003 after the suit had been filed. But the account of Mr. Hussein A Abdi shows a debit amount by 31st December, 2002 of Uganda shillings 13,685,426/=. The obvious question is that having undertaken by May 2002 to clear an amount of about Uganda shillings 384,000,000/= why was account number 446230 not debited with the amounts in question so that they are offset by the promised payment? The amount was acknowledged in writing by Mr. Hussein Abdi Ali. Moreover he undertook to pay according to a given schedule. Exhibit P10 has handwritten notes showing that the cheques in issue in the names of Hussein Ali amounted to Uganda shillings 384,438,148/=. The statement was also printed on 20th October 2003. It's in respect of the suspense account number 1725 and the account name is inward clearing. However the transactions relate to the same period and therefore the date of statement is immaterial. After the cheques had been seized and Mr. Hussein Abdi acknowledged his indebtedness, it ought to have been charged against him and reflected as a loan on account number 446230 so that his undertaking to pay is put into effect. If this is not possible due to regulations, the option was to create an account for the payment of this money. A suspense account is used for a temporary period for any particular account because it is supposed to be reconciled within a short time. By June 2002, reconciliation had been done and what had gone wrong had been identified by the auditors. Liability was attributed to the various accounts in exhibit P13. There is no explanation as to what happened to the undertaking of Mr. Hussein Ali.</p> <p>For this reason I have considered the testimony of PW2 Mr. Oryema Obwot Lazarus and PW1 Patrick Kigongo. PW2 Oryema Obwot testified that in the year 2002 he was an employee of the Plaintiff but as an assistant manager, Kampala branch. On the 3rd May, 2002 he was asked to stand in as acting branch manager as the Defendant who was the branch manager was going on leave. A branch manager is supposed to control all departments within the branch including cash, for business and current accounts. With particular reference to the question of the cheques in issue, he testified that when a customer deposits a cheque from another bank into the Plaintiff’s bank, it is received and the following day it is sent to the drawee bank through the clearing house at the bank of Uganda. The cheque is given three working days to mature. If it is not returned unpaid for some reason within the three days, then the customer's account would be credited. Should a cheque be returned unpaid, the customer is notified and his account is not credited, the cheque is returned to him.</p> <p>The other method is when a customer deposits a cheque that can be handled. The branch manager can give 'direct credit'. This means that he can order that the value be given to the cheque before maturity, thereby allowing the customer instant access to the funds before the cheque is finally paid. Because of the risk in nature of the facility, the branch manager is the only person who is to authorise it. He is to use his best judgment when granting the facility taking into consideration the party on which the cheque is drawn.</p> <p>In the case of inward clearing cheques that is cheques received by the Plaintiff bank from other banks through the clearing house drawn on its customers the amounts are debited immediately on the date of receipt if funds are available. If they are insufficient funds or technical reasons warranting non-payment, the cheque is debited to a suspense account pending further action. Cheques should not be held on the suspense account for more than two working days. They must be paid or returned to the collecting branch, giving reasons for non-payment. In the Defendant's case, some cheques were received by the bank to the clearing house and the customer's accounts were not debited within the requisite two working days. Instead of debiting the customer's account, the suspense account was debited. The suspense account is not supposed to hold the cheque for more than two days and is a transitory account where cheques are temporarily held awaiting funds to be deposited on the customer's account. When the cheques were received from bank of Uganda, they were debited on the suspense account. This was done by the current account manager with the approval of an authority of the branch manager pending payment in case the customer deposited sufficient funds on his account within two days. Within these two days, the manager must ensure that the cheques are paid or returned; otherwise the collecting bank will assume that the cheque has been honoured and proceed to give full value at the other end.</p> <p>PW1 Mr. Kigongo Patrick informed him that some cheques which had been suspended in the inward clearing had not been reversed and were held by the Defendant. He requested the Defendant to release the cheques to Mr. Kigongo to enable him to reconcile the accounts. Eventually the Defendant released to them 26 cheques whose face value is added up to Uganda shillings 540,795,140/=. The cheques were not referred to the collecting banks and neither were they debited in the customer's accounts. They remained for handling in the suspense account. The cheque leaves were apparently kept at the bank. The custody of these cheques lies with the in charge of current accounts with authority from the branch manager. He received a total of Uganda shillings 540,795,140/= worth of cheques. 18 cheques adding up to face value of Uganda shillings 368,889,500/= were drawn on the account operated by Hussein Ali Abdi. Six cheques amounting to Uganda shillings 156,357,000/= were drawn on account number 447146 operated by Bosi Ali. Two cheques amounting to Uganda shillings 15,528,640/= drawn on account number 224302 New Kireka Agip Station operated by Hussein Ali Abdi.</p> <p>I have carefully considered the testimony of PW1 Mr. Patrick Kigongo and PW2 as well as the testimony of the Defendant on the question of the cheques. I cannot reach to any other conclusion other than that several cheques were issued by the various account holders and kept for more than two days. Secondly, the cheques were suspended onto the suspense account and when the two days expired, the persons paid were credited with the amount on the various cheques when the cheques were not cleared and the Plaintiffs account was eventually debited.</p> <p>The only question is whether these actions can be attributed to the Defendant. The only basis for holding the Defendant liable is the fact that he had authority whether to have the cheques cleared or not before the account in favour of which the cheque is issued is credited with any money. The whole suit rests on the allegation that the Defendant kept 26 cheques. In paragraph 12 of the testimony of PW2 Mr. Oryema Obwot Lazarus, he states that:</p> <p>"The cheques were received from the Bank of Uganda; they were debited on the suspense account. This was done by the current account manager with the approval and authority of the branch manager, pending payment if the customer deposited sufficient funds on his account within two days."</p> <p>In paragraph 15 he asked Mr. Kigongo Patrick, the officer in charge of the current accounts to reconcile the various amounts whereupon he was informed that some cheques on being suspended in the inward clearing had not been reversed and were being held by the Defendant. He asked the Defendant to release the cheques to Mr. Kigongo to enable him to reconcile the accounts but the Defendant did not do so until some days later. Whereupon he pulled out an envelope from his drawer in the presence of Mr. Kigongo Patrick and there were 26 cheques in the drawer. On the other hand Mr. Kigongo Patrick testified on the same issue as follows, that he found some missing cheques and on cross checking realised that this was due to cheques which had been paid and signed by Hajj Abdi the Defendant. In paragraph 7 of his written testimony, he testified that for the cheques in question, he received them and found that they did not have sufficient balance on their accounts to meet the amounts written on them. He referred the cheques to the branch manager for determination whether to pay them or dishonor them or suspend them for future payments. The cheques in question were determined by the Defendant for future payments since they were not dishonoured. The cheques stayed for long and were not paid while representing banks had already paid the customers who had presented them. I have noted that it was Mr. Patrick Kigongo who kept the cheques for more than three days. In fact, he testified that the Defendant promised to clear the cheques or to pay them and accepted responsibility for the cheques. Later on he realised that the account holders of the cheques were the Defendant’s sons. Other customer's cheques were being suspended and reversed or paid. The cheques in question remained in account number 1725 because the time for honouring and dishonouring had passed. In paragraph 13 he testified as follows:</p> <p>"The Defendant kept on insisting that he would clear the cheques. During the later part of 2001, I went to his office and told him to pay the cheques in question since he had said he would pay them. I left them on his desk/table and he kept them until the new manager took office."</p> <p>Again he testified in paragraph 14 of his written testimony as follows:</p> <p>"As for the cheques which were marked time barred, the Defendant determined later not to pay them and they were returned time barred. When I informed him about it, he simply said he was personally responsible. That was around November 2001.</p> <p>The second category he testified about concerned Uganda shillings 28,400,000/= drawn on DFCU bank on the basis that credit was given to the payee of the cheque New Agip Nateete Station. The cheque was later dishonoured by DFCU bank by the time it was received by the Plaintiff; the funds had already been withdrawn from the account. Furthermore, there was another Uganda shillings 31,000,000/= drawn in favour of New Agip Nateete Station which was also given a direct credit to the account. It was dishonoured by DFCU with the same result. He took this cheque to the Defendant for presenting but he never did so. These cheques were supposed to be recorded in the unpaid cheques register whereby the owners of those accounts would come sign in the register and take the dishonoured cheques.</p> <p>For his part the Defendant testified that the allegations against him were not true. During the period he was a manager, the Plaintiff had a system called direct credit for encouraging customers to get paid their money quickly and the bank gets profit by charging the customers interest of 30% per annum for 3 to 6 days on the amount of the cheque banked. A direct credit would get cleared within four working days from the date it is banked. All the cheques to be signed by two signatories namely the principal is that of the branch manager or a subsidiary who was his assistant in current accounts Mr. Patrick Kigongo.</p> <p>He agreed that the Plaintiff bank operated the suspense account which was transitory where cheques were supposed to be held for not more than two days awaiting funds to be deposited on the customer's account. Within the two days the head of current accounts Mr. Patrick Kigongo was obliged to ensure that the cheques are either paid or returned by the third day. When the cheques are kept for more than three days, the Plaintiff’s bank account with the central bank would be debited to the tune of the value of the cheque in issue. In situations where there was no money on the customer's bank account, such cheques were never made good. The Plaintiff bank would then lose the money on the cheque to the collecting bank. The debited amount would then go to the person who banked the cheque in issue.</p> <p>He testified that in the instant case, none of the cheques mentioned by the Plaintiff was issued by him. His account was never credited with any money from bank of Uganda. The cheques were issued by the Defendant bank customers in their individual capacity and not on his behalf. Secondly, it was not his duty to authorise and he had no mandate to authorise the overdrawing of any customers account and he did not do so in respect of the persons mentioned. It was not his duty and he had no mandate to suspend any cheques in the clearing suspense account which was controlled by the manager central accounts Department and the cheques were suspended by the head of accounts Mr. Patrick Kigongo. All cheques without sufficient funds on the customer’s account were referred to the general manager and it was his duty to decide whether to honour the dishonoured cheques. He testified that all the cheques in issue related to accounts where there were no sufficient funds and were returned to the general manager by the head of accounts. It is the general manager who decided to authorise the payment. Furthermore, the cheques in issue were not returned by Patrick Kigongo to the collecting bank after the expiry of the prescribed three days in the suspense account. It was the general manager who overdrew the account for the relevant period.</p> <p>He further testified that he was presented with unpaid cheques of one Hussein Ali Abdi who was a customer of the bank. He was instructed by the general manager who authorised the debit to follow up with Hussein Abdi. He did so and Hussein Abdi promised to pay Uganda shillings 15,000,000/= per month starting July 2001 and this is reflected in exhibit P5. The general manager agreed to the proposed settlement because the customer had started paying and had paid Uganda shillings 75,000,000/= by the time he was suspended. He started his leave on 2nd May 2002 which is the date the Plaintiff alleged that he entered into a memorandum of understanding after handing over to the assistant manager.</p> <p>I have carefully considered the above testimony and the question is who kept the cheques beyond three days?</p> <p>The evidence clearly demonstrates that it is Mr. Patrick Kigongo who suspended the cheques. The issue of suspending the cheques is supposed to be a routine matter where they are insufficient funds on the account. Secondly, where were the cheques kept? The cheques were kept by Mr. Patrick Kigongo and this appears in his testimony in paragraph 8. This is what he said:</p> <p>"The cheques in question were determined by the Defendant, for future payments since they were not dishonoured.</p> <p>In paragraphs 9 and 10 of the testimony he testified as follows:</p> <p>"These cheques stayed for long and were not paid while representing banks had already paid their customers who had presented them."</p> <p>10. "I realised later that the account holders of the cheques were actually the Defendant’s sons."</p> <p>In paragraph 12 he testified that the cheques in question remained in account number 1725 because the time for honouring and dishonouring had passed. Finally in paragraph 13 this is what PW1 testified:</p> <p>"The Defendant kept on insisting that he would clear the cheques. During the later part of 2001, I went to his office and told him to pay the cheques in question since he said he would pay them. I left them on his desk/table … until the new manager took office”.</p> <p>It is therefore apparent that it is Mr. Patrick Kigongo who had custody of the cheques by the time the Plaintiffs account was debited. His only defence is that it was with the consent or knowledge of the Defendant. The procedure was to return the cheques and indicate that they had been dishonoured because there were insufficient funds on the customer's account. Loss to the Plaintiff was caused by keeping the cheques for more than three days. All the cheques were in the custody of Mr. Patrick Kigongo. He eventually handed them over around November 2001 because the Defendant had allegedly told him that he would clear the cheques.</p> <p>The Defendant denies having anything to do with the cheques. He does not deny having the cheques suspended because this was supposed to be done when there are insufficient facts. The suspension was supposed to last for a period of two working days in the suspense account and it is returned if no funds are deposited by the customer within that period. That is the testimony of PW2, PW3 and PW4. Apart from the direct credit issued to New Agip Nateete Station, amounting to Uganda shillings 28,500,000/= drawn on DFCU bank and Uganda shillings 31,000,000/= drawn on DFCU bank, the rest of the cheques were kept by Patrick Kigongo until November 2001. That is when he allegedly handed them over to the Defendant.</p> <p>Finally I have checked the various dates on the cheques exhibit P4. They range from 2000 – to early November 2001. In all these transactions, no decision was taken whether to honour or dishonor the cheques. It was the act of keeping the cheques for more than two days that led to the debit of the Plaintiffs account with the bank of Uganda. Who is to be faulted for keeping the cheques for two days and more? The cheques were in the custody of Mr. Patrick Kigongo.</p> <p>Figures are bound to vary from individual to individual and particulars of cheques may be at variance and this is the problem with the testimony of PW1 Mr. Patrick Kigongo. I have particularly noted that the cheques in issue is said to belong to the Defendants sons. In paragraph 10 of his written testimony he testified as follows:</p> <p>"I realised later that the account holders of the cheques were actually the Defendant’s sons."</p> <p>In paragraph 8 he had testified that the cheques in question were determined by the Defendant for future payment since they were not dishonoured. Particularly in paragraph 18 he testified as follows:</p> <p>"I noticed in the register that the unpaid cheques belonging to the Defendant’s sons were collected by the Defendant who signed for them. A copy of the extract from the register is hereto attached for reference."</p> <p>I have accordingly considered the extract where the Defendant is said to have signed for the cheques the subject matter of the suit. The extracts from the books were admitted in evidence as exhibit P6. The record shows that on 7th December, 2015 a list of cheques handled by the Plaintiff bank to the clearing house between the month of January 2001 and July 2001 were agreed to be exhibited as exhibit P6. Exhibit P6 is photocopy of a book in which cheques were acknowledged as having been taken by individuals. I have gone through all the highlighted portions of the book in the testimony of Mr. Patrick Kigongo and the results are so startling because they have no relationship whatsoever to exhibit P13 which is the list of cheques identified by the auditor PW5 and amounting to Uganda shillings 600,292,148/=. They also bear no relationship to exhibit P4 which is the batch of cheques constituting the amount in exhibit P13. What does this testimony mean?</p> <p>For illustrative purposes I have considered the cheque numbers and the date when they were supposed to have been signed for by the Defendant as follows:</p> <ul> <li>On 10th January, 2001, the Defendant is alleged to have signed for cheque number 3233781 for Uganda shillings 60,000,000/=. There is no Uganda shillings 60,000,000/= in exhibit P13.</li> <li>On 15th January, 2001 the Defendant is alleged to have signed for cheque number 3233785 for Uganda shillings 50,000,000/=. There is no cheque with that number or amount in exhibit P13.</li> <li>Again on the same day the Defendant is alleged to have signed for cheque number 3233785 for Uganda shillings 50,000,000/=. There is no amount corresponding to that amount in exhibit P13 or cheque number.</li> <li>On 2nd February, 2001 the Defendant is alleged to have signed for cheque number 466886 for Uganda shillings 50,000,000/=.</li> <li>Cheque number 3541336 for Uganda shillings 30,000,000/=. There is no corresponding figure or cheque number in exhibit P 13.</li> <li>On 30th March, 2001 cheque number 3541352 for Uganda shillings 50,000,000/= the Defendant is alleged to have taken a cheque which has no corresponding but in exhibit P13.</li> <li>On 30th March, 2001 the Defendant is supposed to have taken cheque number 466890 for Uganda shillings 50,000,000/= but it has no corresponding evidence in exhibit P13.</li> <li>Cheque number 3541358 for Uganda shillings 20,000,000/=</li> <li>Cheque number 3541359 for Uganda shillings 30,000,000/=</li> <li>Cheque number 3541363 for Uganda shillings 30,000,000/=</li> <li>Cheque number 466887 for Uganda shillings 50,000,000/=</li> <li>Cheque number 3541350 for Uganda shillings 50,000,000/=.</li> <li>All the above cheques have no corresponding cheque numbers or amounts in exhibit P13.</li> <li>On 26th April, 2001 the Defendant is said to have taken cheques numbers 354 1355 for Uganda shillings 50,000,000/=</li> <li>Cheque number 3541365 for Uganda shillings 50,000,000/=</li> <li>Cheque number 3541364 for Uganda shillings 50,000,000/=</li> <li>Cheque number 466889 for Uganda shillings 20,000,000/=</li> <li>Cheque number 466888 for Uganda shillings 30,000,000/=</li> <li>Another cheque without numbers for Uganda shillings 50,000,000/=.</li> <li>None of the above cheques have the corresponding number of figure in exhibit P13.</li> <li>On 30th April, 2001 the Defendant is reported to have taken according to exhibit P6 the following cheques:</li> <li>Cheque number 969936 for Uganda shillings 50,000,000/=.</li> <li>Cheque number 88462 for Uganda shillings 50,000,000/=.</li> <li>On the 30th May, 2001 the Defendant is alleged to have signed for cheque number 3541370 for Uganda shillings 50,000,000/=.</li> <li>Cheque number 3541371 for Uganda shillings 50,000,000/=.</li> <li>Cheque number 3541369 for Uganda shillings 50,000,000/=.</li> <li>On the 24th May, 2001 the Defendant is alleged to have taken cheque number 323 3785 for Uganda shillings 50,000,000/=.</li> <li>Cheque number 3541373 for Uganda shillings 50,000,000/=.</li> <li>Cheque number 969936 for Uganda shillings 50,000,000/=.</li> <li>Cheque number 3541376 for Uganda shillings 50,000,000/=</li> <li>cheque number 79544 for Uganda shillings 50,000,000/=.</li> <li>On 7th June, 2001 the Defendant is alleged to have signed for cheque number 3679543 for Uganda shillings 50,000,000/=.</li> <li>Cheque number 88463 for Uganda shillings 50,000,000/=.</li> <li>Cheque number 3879545 for Uganda shillings 50,000,000/=.</li> <li>On 12th June, 2001 the Defendant is alleged to have signed for cheque number 417806 for Uganda shillings 50,000,000/=.</li> <li>Cheque number 3233787 for Uganda shillings 50,000,000/=.</li> <li>Cheque number 3233788 for Uganda shillings 50,000,000/=.</li> <li>Cheque number 3233789 for Uganda shillings 50,000,000/=.</li> <li>On 20th June, 2001 the Defendant is alleged to have signed for cheque number 520256 for Uganda shillings 50,000,000/=.</li> <li>On 22nd June, 2001 the Defendant is alleged to have signed for cheque number 417807 for Uganda shillings 150,000,000/=.</li> <li>Cheque number 3079546 for Uganda shillings 50,000,000/=.</li> <li>Cheque number 217653 for Uganda shillings 350,000/=.</li> <li>Cheque number 13674 for Uganda shillings 600,000/=.</li> <li>On 25th June, 2001 the Defendant is alleged to have signed for cheque number 520256 for Uganda shillings 150,000,000/=.</li> <li>Cheque number 3079547 for Uganda shillings 50,000,000/=.</li> </ul> <p>All the above cheques have no corresponding amount or cheque number in exhibit P13 which constitutes the Plaintiff’s claim. The testimony of PW1 is completely suspect and contradictory to the evidence of PW 5 the internal auditor. If the above were the cheques which were kept by the Defendant, then they have nothing to do with the alleged loss of Uganda shillings 600,292,148/=. The question then would be where those cheques were kept? All the cheques belonged to the Defendant’s sons. The majority of the cheques belonged to Hussein Abdi Ali and were issued between January 2001 and June 2001. In exhibit P13 the cheques were issued between February 2001 and March 2001. Cheques issued in November 2001 belonged to Bosi Ali. The Plaintiff's Counsel at page 13 and the second and last paragraphs of his submissions actually testified that the Defendant was able to identify signature of some of the cheques and also against exhibit P6 being the list of cheques returned to the clearing system for non-availability of funds. He listed some of these cheques between pages 13 and 14 of his written submissions. At the same time he also relies on exhibit P4 which is the list of cheques admitted.</p> <p>I have carefully considered exhibit P4 and indeed exhibit P13 corresponds with some of the amounts and the dates as to when the cheque was received by the bank.</p> <p>For his part the Defendant testified in paragraph 27 of his written testimony that the cheques in issue were not returned by Patrick Kigongo to the collecting bank after the expiry of the prescribed three days in the suspense account. He testified that he was shown a batch of cheques on the 13th of May 2002 and asked why he had kept them.</p> <p>The question that remained was who was in custody of the cheques by the time the Plaintiffs account was debited in Bank of Uganda. I find that it cannot be fixed on the Defendant through the testimony of the only person who had accessed the cheques namely PW1. It was therefore not proved that it was the Defendant who kept the cheques beyond the three days. It was in fact Patrick Kigongo who did. It is the action after the debit which is being called into question. The cheques ought to have been returned immediately or within two days since they could be debited on the 3rd day. In exhibit P9 which is the judgment of the Magistrate's Court in Criminal Case Number 723 of 2002 Patrick Kigongo suspended the cheques after referring it to the branch manager. There was however proof that PW3 had an interest in the cheques and put pressure on the customers to pay by his visits to their Petrol Stations to pay which fact he admitted in cross-examination.</p> <p>After careful evaluation of evidence, it cannot be explained why all the cheques in issue were the cheques attributed to the sons of the Defendant.</p> <p>It is therefore my humble conclusion, despite the contradictory evidence of PW1, that PW1 and the Defendant knew something about these cheques and their being kept beyond the period of three days and in any case, the activities of the servants of the Defendant were within the knowledge of the Defendant because he discussed the same with PW1 Mr. Patrick. It was a joint responsibility between the two.</p> <p>I have further considered the testimony with respect to the issue of duress. My conclusion is that there is other independent evidence that incriminates PW1 Mr. Patrick Kigongo and the Defendant. So even if the information was procured through duress, I am unable to determine for sure whether the Defendant was tortured. I have opted to rely on other independent evidence which I have set out in detail above.</p> <p>Particularly the court cannot rely on the evidence of exhibit P1 which is an acknowledgement in a memorandum of understanding as well as exhibit P 12 for the simple reason that by the time the suit was filed, some of the money exhibit P1 which is the memorandum of understanding had been paid off. Why was this suit filed inclusive of the figures in exhibit P1? Exhibit P1 and exhibit P12 are suspect documents and ought not to be relied upon by the court because they do not depict the state of affairs by the time the suit was filed in October 2002. Furthermore, PW1 referred to evidence which refers to different transactions. Hussein Abdi Ali independently acknowledged his indebtedness. The production of exhibit P6 demonstrates that the evidence compiled against the Defendant is suspect and contradictory.  For the reasons there is evidence that the Defendant made acknowledgement of indebtedness due to the other pressure he was subjected to.</p> <p>Conclusion:</p> <ul> <li>By the time the matter cropped up, this was in May 2002 by which time the Defendant was due for his leave. He went on leave and evidence was compiled in his absence.</li> <li>The acknowledgement is exhibit P1 and P12 do not reflect the true state of affairs by the time the suit was filed in October 2002.</li> <li>After the acknowledgement in exhibit P1 and P12 efforts were made by Raphael Drichi to clear a sum of Uganda shillings 171,194,949/= which was in debit on his account. This amount was fully cleared by the time the suit was filed but it was included as a claim in the suit and by amendment of the plaint in 2014, it was further included as against the first Defendant only.</li> <li>Similarly a substantial part of the Uganda shillings 166,130,209/= attributed to Hussein Abdi Ali were paid leaving a balance of over Uganda shillings 8,027,050/= by 31st of July 2002 which was the debit balance. By the time the suit was filed, the account was in debit balance by only about Uganda shillings 13,685,426/= yet the entire amount was filed against the Defendant.</li> <li>Proceedings were commenced against the sons of the Defendant and the suit against them was dismissed.</li> <li>Hussein Abdi Ali independently acknowledged a sum of Uganda shillings 384,438,140/= on account of various cheques issued when there was no money on the account.</li> <li>Subsequently Hussein Abdi Ali made payments on the 13th May, 2002 of Uganda shillings 15,000,000/=. And another Uganda shillings 156,194,949/= on 31st of June 2002. The suit was filed on 30th October, 2002. No further evidences given as to whether he continued making payments as undertaken.</li> <li>The evidence of PW 5 gives the position with regard to the cheques in question by June 2002. Subsequent payments made by Hussein Abdi and Raphael Drici one not taken into account because apparently they relate to direct credits.</li> <li>There is no evidence that no other payments were made in another way similar to the work relating to the direct credits. All the testimonies give the position by May 2002. The testimonies did not disclose payments made after the other two. These were discovered from the documents adduced by the Plaintiff.</li> <li>Because exhibit P1 and P2 cannot be relied on for the reasons given in the judgment, the sum of Uganda shillings 384,438,140/= attributed to Hussein Abdi Ali cannot be charged on the Defendant. Being a customer of the bank who has been servicing his account, he ought to be held accountable and there is no basis for attributing this amount on the Defendant. The Defendant secured Mr. Hussein Abdi Ali who undertook to clear his indebtedness with the bank and there is evidence of his commitment in exhibit P9.</li> <li>I have considered the testimony of PW 4 who testified that the Defendant paid Uganda shillings 25,000,000/= during the month of June 2002 but did not make further deposit. This amount is not reflected in any statement produced or any deposit slip or record of the Defendant. The Defendant denied having paid this money. It however proves that from the testimony of the Plaintiff’s witness, money could be paid on another account but this account has not been disclosed to the court. Her testimony attributes the entire loss claimed on Defendant when some of the money had been paid by the time PW4 testified in this court.</li> <li>In the premises, the Defendant is not liable for the entire amount of loss. Secondly it is Mr. Patrick Kigongo who kept the cheques for more than three days leading to the debit. The Defendant's fault is that he did not put pressure on his sons to clear the indebtedness by the time the issue was discovered according to the testimony of PW1. He allegedly promised to clear the indebtedness which he did not do prompting PW1 to leave the cheques at his desk. These cheques were exhibited as exhibit P4.  Lastly by the time the cheques were dumped at the Defendant’s desk, the loss had already occurred due to the act of suspending the cheques and keeping them for more than two days from the time they were first received.</li> </ul> <p> </p> <p>Before concluding with the remedies I will first deal with the counterclaim of the Defendant.</p> <p> </p> <p><strong>COUNTERCLAIM</strong></p> <p><strong>Issue No. 2: Whether the Defendant was lawfully suspended and/or dismissed by the Plaintiff? </strong></p> <p><strong>The Counterclaimant’s Submissions:</strong></p> <p>The Defendant's counter claim raised the issue of <strong>whether the Defendant was lawfully suspended and dismissed. </strong>The Counterclaimant’s Counsel submitted that this issue should be answered in the negative on the following grounds:</p> <p><strong>Sub Issue (a):</strong></p> <p>Unlawful suspension: As far as this sub issue is concerned the Defendant’s Counsel submitted that his suspension without pay was unlawful and in breach of the Bank's Regulations, Terms, and Conditions of Service which took effect from 7th March 1998 and is exhibit D3<strong>. </strong>According to <strong>Exhibit D7 </strong>(letter Ref: DF/014 dated 22nd July, 2002) and addressed to the Defendant by Berna A. Ajakol (Mrs.), the Manager Personnel &amp; Administration, the Defendant was suspended from duty with effect from 17th May, 2002 in accordance with Regulation 30 of the Staff Regulations, Terms, and Conditions of Service. This was due to <strong>"Following circumstances under which he was charged with causing financial loss to the Bank"</strong> Also the Memorandum dated July 19, 2002 from the Manager Legal Services, to the Manager - Personnel &amp; Administration (Exhibit D6) reveals that on 17th May, 2002 both the Defendant, AI Haji Abdi and Mr. Patrick Kigongo were charged with causing financial loss to the Bank. They had to be suspended with immediate effect, having regard to the nature and gravity of the criminal offence involved. It was decided that they were not to receive salary during the time they would remain on suspension. Indeed Exhibit D7 (the Defendant's letter of suspension dated 22nd July, 2002) conveyed this message to the Defendant.</p> <p>While it is true that the Bank had the mandate to order the suspension of its employees who have been charged with a criminal offence, and the same is pending in a Court of Law, under Regulation 30 (a), the said employees were entitled to receive half salary during the first three (3) months of the suspension and thereafter, the management of the Bank was obliged to review the case with a view of either extending the same; or terminating service. In the Defendants case, the Bank reviewed the Defendant's case in November, 2005; after it got an ex parte judgment against the Defendant in H.C.C.S. No. 569 of 2002 and thereafter terminated the Defendant's services by dismissing him forthwith on 8th of November 2005 under Regulation 23 (i) of its Regulations, Terms, and Conditions of Service. The facts show prima facie that the Defendant was put on continued suspension from 22nd July, 2002 up to 8th November 2005 being a period of three years and four months. This in itself was a breach of the Defendants fundamental Constitutional right to a fair and speedy disposal of disciplinary proceedings against him.</p> <p>In the case of <strong>Perez Kakumu versus Attorney General 2003 KALR 344,</strong> the facts were that the Police CID was investigating a possible crime against Mr. Perez Kakumu in the management of Government funds. The Permanent Secretary interdicted him on that basis and wrote to him a letter on 30th January, 1995 requesting him to defend himself on charges of misconduct. Kakumu gave his defence by reply one week thereafter on 9th November, 1995. Thereafter he never heard from the Permanent Secretary, till he filed his Suit in 1997 about two (2) years thereafter. It was held that the Permanent Secretary was in breach of the law which requires a speedy conclusion of disciplinary proceedings against an Officer. Therefore, the continued interdiction of 2 years was unlawful; and would be lifted. An order was also issued for the Plaintiff to be paid all his salary arrears including benefits which had been withheld because of the long interdiction.</p> <p>The Counterclaimant’s Counsel submitted that in this case the Defendant was suspended on 22nd July, 2002 and was remanded in Luzira Prison, and his suspension continued and lasted for over three (3) years without any pay and this was unlawful.</p> <p><strong>Sub Issue</strong> (b)</p> <p>Unlawful dismissal:</p> <p>The Counterclaimant’s Counsel submitted that according to <strong>Exhibit D 10, </strong>the Defendant after his acquittal wrote to the Bank a letter dated 22nd Jan, 2013 through his Lawyers Messrs Joseph Kiryowa &amp; Co. Advocates, to establish his fate because he had never received further communication since his suspension on 22nd July, 2002 about 11 years earlier. The said letter <strong>Exhibit D10 w</strong>as duly received and acknowledged by the Bank's Legal Department on 23rd January 2013. The Bank did not bother to reply to the letter until the Counterclaimant filed Civil Suit No. 93 of 2013 against the Bank to declare his continued suspension, unlawful, as was done in Perez Kakumu’s Case.</p> <p>The Plaintiff claimed that the Defendant was no longer on suspension has been dismissed though no proof of the alleged dismissal was attached. The Court ordered the Plaintiff in 2014 to produce proof of the communication of dismissal whereupon the Plaintiff's Lawyers delivered a photocopy of a letter of termination of services/dismissal to the Defendant's Advocates on 26th May, 2014. For the first time; the Defendant saw and received a photocopy of this letter dated 8th November 2005 <strong>(Exhibit P3) signed by Mohammed Wahra </strong>General Manager Tropical Africa Bank Ltd and not <strong>Mr. Khallas </strong>as indicated in the written submissions of the Plaintiff’s Counsel. Before the said date the Bank never wrote to the Defendant requesting him to defend himself before a Disciplinary Committee, following the Defendant's suspension on 22nd July 2002. Instead the Plaintiff relied on an ex parte Judgment in H.C.C.S. No. 569 of 2002 where the Defendant was never heard to terminate his services in 2005.</p> <p>Secondly, the criminal charges against the Defendant were still pending hearing in Buganda Road Magistrates Court by 2005 by the time the decision to terminate his services was taken and he was presumed innocent.</p> <p>In her written testimony PW 4 Addah T. Wegulo testified that on receipt of the ex parte judgment against the Defendant, it was not necessary to subject the Defendant to disciplinary hearing.</p> <p>The Counterclaimant’s Counsel submitted that the procedure adopted for termination of the Defendant’s employment without giving him a hearing was unlawful. In <strong>Kamurasi Charles vs. Accord Properties Ltd &amp; Another S.C.C.A. No. 03 of 1996</strong>, it was held that to condemn a person unheard was a violation of the cardinal rule of natural justice and which rule embraces the whole procedure of due process. In <strong>Matovu &amp; 2 Others vs. Sseviri &amp; Another [1974] HCB 174</strong> it was held that a decision arrived at in breach of a rule of natural justice is void ab initio and is of no consequence. The same conclusion was reached in <strong>Lukwiya Joseph vs. Gulu District Local Government HCT-02-CV-CS-0022 of 2003 </strong>where it was held that termination from employment without affording an opportunity to the employee to be heard in defence of the charges laid against him was unlawful (See also <strong>Jabi vs. Mbale Municipal Council </strong><strong>1975 HCB 191).</strong></p> <p>In the premises the Counterclaimant’s Counsel submitted that the right to be heard is sacrosanct and the Bank had no right whatsoever to deny the Defendant an opportunity to defend himself. This was more so, when the affected Bank customers; Hussein Ali Bossi Ali and Drichi Raphael had cleared their Accounts in 2002 and 2003 according to the exhibited Bank Statements. As it turned out later, the ex parte Judgment which the Bank relied on in November, 2005 was subsequently set aside by this Court on the 23rd August, 2013.</p> <p>Furthermore, the Defendant was later found innocent by the Buganda Road Magistrates Court Criminal Case No. 723 of 2002 on 14th of October 2011 and acquitted of all the criminal charges, for which he was suspended by the Plaintiff on 22nd July, 2002.</p> <p>The Defendant’s Counsel prayed that Court finds that the continued suspension of the Defendant without pay and his subsequent dismissal were unlawful.</p> <p><strong>Plaintiffs Reply</strong></p> <p>In reply to issue 2 on <strong>whether the Defendant was lawfully suspended and/or dismissed by the Plaintiff, </strong>the Plaintiff’s Counsel submitted that it is the Plaintiff's/ Respondent to counterclaim case that the Counterclaimant was involved in malpractices. He ordered direct credit on customers' accounts against cheques presented when there were no corresponding amounts of money on the accounts. It was further discovered that the Counterclaimant suspended cheques on the suspense account No. 1725 beyond the requisite three (3) days and by the time the cheques were returned unpaid, the bank's suspense account had already been debited with the funds on the cheques. Following this discovery, the Counterclaimant was charged in the criminal court for causing financial loss and was further suspended from work.  Further still the counter Defendant filed civil suit No. 569 of 2002 for recovery of the money whose loss was attributed to the fraudulent conduct of the Defendant. At first, the Counterclaimant did not defend the suit and judgment was pronounced against him on the 1st November, 2005. In the said judgment, the Counterclaimant was found to have caused the counter- Defendant loss of Uganda Shillings 876,540,298/= through his breach of duty and fraudulent conduct. Shortly after the judgment of the court, the Counterclaimant was summarily dismissed by letter dated 8th November, 2005, ExP3. The counter-Defendant’s defence is that both the suspension and subsequent dismissal were justified. Under the Regulations, Terms and Conditions of Service Exhibit D3, provision is made for summary dismissal of an employee for gross misconduct. <strong>Regulation 23 (i</strong>) provides that:</p> <p>"Without prejudice to any criminal or civil liability, an employee may be deemed to have committed an offence and may be liable to disciplinary action under these regulations if found guilty in any or all the following cases namely: (k) Guilty of acting dishonestly in the course of his duties.”</p> <p> </p> <p>Under <strong>Regulation 23 (iii)</strong> the management may take on appropriate disciplinary action against an employee who persistently fails in his own duties and responsibilities provided he has been formally informed of the same and before a final decision is taken, the employee should be given a chance to defend himself. Counsel submitted that under that regulation where an employee is found liable by a competent court to an employer for fraud, whether in civil or criminal proceedings, there would be no need for another hearing before disciplinary action is taken against him. The Counterclaimant was therefore lawfully dismissed once the High Court found him liable in breach of duty and fraud. The Counterclaimant averred in his pleadings and testimony that he was charged in Buganda Road Court with 27 counts of causing financial loss to the Counter- Respondent, but the court found him innocent and acquitted him of all the charges. It is true that the criminal court acquitted the accused on the 14th October, 2011 of charges which were brought against him in 2002. The acquittal came long after the judgment of the High Court in this same suit where the accused was found to have been fraudulent, therefore causing financial loss to the counter-Defendant of more than Uganda shillings 800,000,000/=. It was after the finding of fraud in the Civil Suit that the dismissal letter dated 8th November 2005, Exhibit P3 was written to the Defendant. In paragraph 55 of her witness statement, PW4 Addah T. Wegulo testified that fraud is a fundamental vice in the banking business as banks deal with customers' money and the public places a lot of trust in the bank. A person found to be fraudulent at whatever level cannot continue in the employment of the bank.</p> <p>Furthermore, the Counter Defendants Counsel submitted that the standard of proof in criminal cases is not the same as that in civil cases. While proof in criminal cases is that beyond reasonable doubt, in civil cases proof is on a balance of probabilities. It is true however that the standard of proof for fraud is higher than in other civil cases because of the seriousness of the vice. A finding of fraud against a bank employee should therefore be sufficient cause for dismissal without further disciplinary hearings. Counsel relied on <strong>Black's Law </strong>Dictionary Eighth Edition for the definition of Fraud as a: "A knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment. Fraud is a tort, but in some cases (especially when the conduct is willful) it may be a crime ...” He submitted that in the matter before court there was a clear and willful misconduct on the Defendant's part which would tantamount to a criminal act. The Defendant did not therefore require any other hearing after a finding of fraud. The Counterclaimant accuses the counter-Defendant of backdating the said letter which he claims to have received through his lawyers. This accusation is not true as it was responded to in the testimony of PW4 Addah T. Wegulo when she mentioned in paragraph 54 of her statement that the letter terminating the Defendant's service could not have been backdated as alleged by the Counterclaimant considering the fact that the General Manager, Mr. Khallas who signed it, left the bank in the year 2009.</p> <p>The Counterclaimant could not be reinstated on the job as prayed for after his discharge as he had already been dismissed. That the judgment upon which the Counterclaimant was dismissed was itself set aside cannot entitle the Plaintiff to a reinstatement to his job where he was dismissed eleven (11) years earlier and where he does not quality to be employed by virtue of age.  Secondly, the Counterclaimant could not possibly be reinstated even if he was eligible as he had already reached retirement age. According to the human resource manual of the Plaintiff, the retirement age for employees of the bank is 60 years. If the Counterclaimant was 71 in 2015, he ought to have retired from the bank in 2004. Two years after he was suspended. Even if the retirement age was 65 years as suggested by the Counterclaimant during cross-examination, he would then have retired in 2009. In any case, the prayer for reinstatement cannot stand. It is not true that the counter-Defendant failed to avail to the Counterclaimant the necessary pay slips as pay slips are always given to the employee (the Counterclaimant in this case) as proof that his salary is paid. Section 50 of the Employment Act provides that:</p> <p>"Every employee shall receive with each payment of his or her wages an itemized pay statement from his or her employer, in writing, in a form and language which the employee may reasonably be expected to understand, which shall set out; ‘the amount of every deduction from his or her wages due at the end of that particular pay period; the amount of every deduction from his or her wages during that pay period and the purpose for which each such deduction was made; and the employee's net wages payable at the end of that pay period."</p> <p> </p> <p>The pay slips were received by the counter claimant. He had no reason therefore to demand for them. The Counterclaimant did not plead the specific net salary that he was earning as branch manager. He further did not plead or prove any fringe benefits and emoluments from 17th May, 2002 up to May 2014 as alleged. In any case, the Counterclaimant would not be entitled to these benefits as he was due to retire in the year 2006. Salary arrears and other emoluments are special damages. There are authorities on how special damages ought to be specifically pleaded and strictly proved (see <strong>ROSEMARY NALWADDA vs. UGANDA AIDS COMMISSION HCCS NO. 67 OF 2011</strong>, where Hon. Justice Stephen Musota held that the principles governing the award of general damages is well settled. A claim for special damages must specifically be pleaded and strictly proved. A Plaintiff had the duty to prove their damage. It is not enough to write down particulars, throw them to the court and say "this is what I have lost I ask you to me these damages." They have to be proved. This does not mean that proof of special damages have to be proved by documentary evidence in all cases.</p> <p>The Plaintiff’s Counsel submitted that the Counterclaimant fell short of the principle to specifically plead and strictly prove the salary arrears and other emoluments. There is no basis therefore upon which such damages can be awarded. Finally, under the Regulations, Terms and Conditions of Service exhibit D3 and <strong>Regulation 24 on RESIGNATION AND DISCHARGE, </strong>under clause 2 (i) (Retirement benefits), provides that:</p> <p><strong>“To qualify for the benefits, the employee should have been in continuous service.” </strong></p> <p>The Counterclaimant in his pleadings averred and testified that he was first employed by the bank from 1973 to 1995 when he resigned from his job. He was later in February 1998 re-employed until 2002 when he was suspended and later dismissed. Under the circumstances therefore, the Counterclaimant cannot claim for benefits in accordance with regulation 24.</p> <p>Under the provisions of <strong>Section 83 of the Employment Act,</strong> ‘continuous service’ is defined as an employee's period of uninterrupted service with the same employer.</p> <p>The Counterclaimant testified that he resigned from work and was reinstated after a period of 3 years. He was therefore not in continuous service and is not entitled to benefits. He concluded that the employment service of Defendant/Counterclaimant was lawfully terminated.</p> <p> </p> <p>The Plaintiff’s Counsel submitted that they have shown in their main submissions how the Defendant admitted to fraudulent acts of using the Suspense Account number 1725, to siphon money out of the bank in concert with other people mentioned therein. Further evidence of fraud was brought when it was revealed that the cheques that were suspended were kept by the Defendant in his drawers. This was done as a way to conceal the malpractices that the Defendant was involved in. It is not true as submitted by defence Counsel that by the time of the ex parte judgment, the money had already been paid back by the customers who included the Defendant's children. In his allegation, the Defendant attempted to rely on the statements of Hussein Ali Abdi exhibit P5 and exhibit P8 which it was submitted, showed an outstanding debit balance of Shillings 13,685,426/= as on 31st December 2002. Similar conclusion was drawn regarding Account No. 447161 of Raphael Drichi (ExP11) and Account No. 447146 (ExP7) of Bosi Ali. By relying on these bank statements, the Defendant attempts to hide the mala fides that happened on the Suspense Account No. 1725. It is clear from the Audit Report exhibit P13 and the evidence of Anne Nandawula (PW5) that the cheques in question, whose numbers are shown as against the accounts of the involved parties are part of the sources of loss. These cheques amounting to Shillings 600,292,148/= are un-reconciled entries on the Suspense Account No. 1725. They are un-reconciled because they were not brought back into the system. As such, they cannot be reflected on the statements of account of the relevant parties involved. The intention of the Defendant was to hide the loss. So he kept the cheques and did not surrender them until questions were asked. His signature was proved at different places on Exhibit P6 that the Defendant collected these cheques himself once they were brought back from the clearing house. If these cheques were brought back into the system, the amounts would have been reflected on the different accounts. The fraud was very well orchestrated that it would not reflect on the individual accounts. It could only be discovered by an audit of the Suspense Account supported by the admission of the Defendant.</p> <p> </p> <p><strong>Remedies</strong></p> <p>The Plaintiff’s Counsel prayed that judgment be entered in favour of the Plaintiff in the amount of Uganda shillings 912,620,298/= and Interest be awarded at the rate of 26% pa from the date of filing the suit till the date of judgment and costs of the suit.</p> <p> </p> <p><strong>Defendant’s Submissions in reply: </strong></p> <p>In reply the Defendant’s Counsel submitted that the Plaintiff's main Suit should be dismissed with costs and the counter claim be allowed with costs.</p> <p>With regard to special damages, Counsel submitted that the Defendant resigned from Tropical Bank Ltd in 1995 and even requested for his benefits (Exhibit D4) which closed the 1st phase of his employment.</p> <p>However, the Defendant was reinstated in the service of the Bank as Assistant Bank Manager on permanent terms according to his letter dated 23rd February, 1998 exhibit D5. He was later on 22nd November, 1999 and appointed as acting Manager Kampala Branch (Exhibit D2). Management appreciated his work as a result of favorable reports from his superiors and careful assessment of his performance of duties during 2001. They increased his gross pay from Uganda shillings 1,914,484/= to Uganda shillings 2,017,017/= with effect from 1st January 2002 (Exhibit D17). His continuous service from 23rd February 1998 was simply interrupted by his unlawful suspension due to work intrigues.</p> <p>With reference to the claim for payment of salary arrears and other benefits during the loan suspension from 2002 to 2014m Counsel submitted that it is erroneous for the Plaintiff’s Counsel to submit that the Counterclaimant failed to plead and prove salary arrears which he was entitled to in May, 2002 being the time of his suspension.</p> <p>With regard to the long suspension without pay, Counsel relied on the case of <strong>Justus Kalebo vs. Uganda Revenue Authority HCT – 00 – CV – CS – 0405 – 2006</strong> where the court addressed the issue of effective communication of a letter of dismissal of an employee. It was held that the status of the Plaintiff as an employee of the Defendant would obtain till the Defendant communicates to him the final decision on the termination. Counsel submitted that the Defendant/ Counterclaimant in a letter written by his lawyers Messrs Joseph Kiryowa &amp; Co, Advocates and addressed to the General Manager of the Plaintiff demanded to know his fate as an employee of the Bank after his acquittal and this letter was duly received by the Legal Department on 23rd of January 2013. The Plaintiff Bank did not respond to the same, even after expiry of the seven (7) days given. The Defendant clearly put it to the Bank that he was continuously tormented by the endless suspension. He was never told that he was dismissed in 2005 as the Plaintiff later on tried to claim.  It was only on the 27th of May 2014 that the Plaintiff's Lawyers, Messrs J.M Musisi Advocates &amp; Legal Consultants; wrote a letter dated same date<strong> (Exhibit D8) </strong>forwarding the <strong>"Dismissal Letter" </strong>for the Plaintiff dated 8th of November 2005.</p> <p>According to the <strong>Perez Kakumu's Case</strong><strong> (Supra</strong>), the employee should be paid all his salary arrears including benefits which were withheld because of the long suspension.</p> <p>In these circumstances the Counterclaimants Counsel submitted that the 27th May, 2014 should be the effective date of communication of the dismissal of the Defendant from the Plaintiff's Bank service. Up to this date, the Defendant is deemed to have remained in continuous service of the Plaintiff; though under suspension without pay. The Defendant is therefore entitled to his gross salary of Shillings 2,017,017/= throughout this period of long suspension being a period of 144 months amounting to Uganda shillings 290,450,448/=. The amount should carry interest from 2005 to cater for inflation and pay rise.</p> <p>As far as retirement benefits are concerned, the Counterclaimants Counsel prayed that the Counterclaimant is awarded a retirement benefit of a minimum of 11 years worked as he would have normally retired at 65 years.  With regard to the submission that the retirement age was 60 years the Plaintiff did not adduce in evidence any human resource manual of the Plaintiff and therefore cannot rely on it. The mere fact that the Defendant would have clocked 65 years in 2009, does not necessarily mean that he would have automatically ceased to work in the Bank in that year; or that, he had to retire automatically.</p> <p>In the Case of George Ndajimana versus Uganda Printing &amp; Publishing Corporation 2001 KARL 440; Court defined "Retirement" as voluntary termination of one's employment or career, especially upon reaching a certain age.</p> <p>That on attainment of a certain age, an employee is free to voluntarily terminate his employment with the employer; and the employer has discretion to say yes or no; although the acceptance is not automatic.</p> <p>He had more nine (9) years of normal service before clocking the normal retirement age of sixty five (65) years. Furthermore, the Bank could still have continued to employ him on contract if he had not had such rude interruption.</p> <p>In just and fair circumstances, he is entitled to all his Retirement Package in accordance with Clause 2 Regulation 24 of the Bank Regulations, Terms, and Conditions of Service Exhibit D3.</p> <p>With regard to the Defendant’s continuous service from 23rd Feb 1998, ad with reference to the Plaintiff’s submissions that the Defendant was not in continuous service of the Bank to qualify for the retirement benefits Counsel disagreed that there is no specified period of service given for employees on permanent terms before one can qualify for retirement benefits. He submitted that the requirement is for an employee to have been in continuous service with the bank whereby even the period when one is on suspension without pay is included in the computation of the days of continuous service contrary to the argument of the Plaintiff’s Counsel. He cited section 82 of the Employment Act No. 6 of 2006 which provides that continuous service shall begin from and include the first day on which the employee begins from and include the first day on which an employee begins to work for an employer and shall continue up to and include the last day on which that work shall be completed.</p> <p>Counsel submitted that in the instant case the Defendant’s service as an Assistant Manager Kampala branch on permanent terms began on 26th February, 1998 according to exhibit D5 and was interrupted by his suspension without pay in May 2002 until he received a photocopy of a letter of termination of service on 27th May, 2014 admitted in evidence as Exhibit P3.</p> <p>Counsel made reference to Section 84 (1) (b) of the Employment Act of 2006 which provides that an employee’s continuous service shall not be regarded as broken where an employee is absent from work…”due to his or her suspension without pay…” Subsection 2 provides that any period of time elapsing in a situation referred to in subsection (1) shall count for the purposes of calculating the length of continuous service.</p> <p>Counsel further submitted that in the instant case the Defendant is deemed to have remained on suspension from May 2002 to 27th May, 2014 (12 years) when he received the letter of termination of his services. He submitted that retirement carries with it benefits and entitlements collectively known as Retirement benefits and entitlements which an employee normally looks forward to the day when the benefits would accrue to him.</p> <p>He further submitted that in the instant case the demeanour of the Defendant in court during cross examination showed that he was still in his proper mental faculties and body fitness to have carried on meaningful work long after he clocked 65 years in 2009. The Defendant’s Counsel further submitted that the past meritorious service of the Defendant which manifested itself in the several years he worked for the bank and which was recognized in Exhibit D17 was interrupted by his unlawful suspension in 2002. He further submitted that he did not freely/ voluntarily terminate his employment with the Plaintiff Bank and he was not convicted by any court to be disentitled to his retirement benefits hence the Plaintiff should bear the financial consequences of its high handedness and arbitrary dismissal of the Defendant who was innocent. He should be awarded his retirement benefits under Clause 2 Regulation 24 of the Terms, Regulations and Conditions of service Exhibit D3.</p> <p>As far as general damages are concerned the Counterclaimant’s Counsel relied on <strong>Senyonga Kiwanuka Godfrey vs. Attorney General H.C.C.S. No. 146 of 2008. </strong>In that case the Plaintiff was interdicted for 10 years without being given his salary or any other benefits up to the time he was given his letter of dismissal 10 years later and was awarded general damages.</p> <p>He submitted that the Defendant’s employment was governed by a written service agreement which could not be found due to failure to find his personal file according to exhibit D8 and as such the Defendant was entitled to be heard. The Plaintiff denied him the right to be heard and treated the letter of termination of service exhibit P3 as his dismissal.</p> <p>The issue of dismissal whether summarily or otherwise had to be governed by the terms of the Service Agreement. Both the Plaintiff and the Defendant were under obligation to observe the terms of the said Service Agreement. At common Law; an employee whose Contract of Service is breached by the employer has an option to sue for general damages, as was held in <strong>Gulabala vs. Kampala Pharmaceuticals Ltd S.C.C.A. No. 6 of 1998 </strong>cited in the case of <strong>David Massa vs. National Housing Corporation 2002 KALR 492.</strong> In the case of Massa (supra), the trial Judge, Musoke Kibuuka J found that the Plaintiff who was a turn boy and earned Uganda shillings 260,000/- per month was entitled to general damages for wrongful dismissal. He applied a multiplier of 15 to calculate the general damages and even awarded exemplary damages. In the instant case, there is no evidence of breach of fiduciary duty or of financial loss as claimed by the Plaintiff. There was no proof of criminal liability after the Defendant was acquitted.</p> <p>In the premises he contended that the dismissal which was communicated to the Defendant was wrongful and he is entitled to all his benefits for the remaining years of service as was held In the case of <strong>Southern Highlands Tobacco Ltd vs. David McQueen [1960] EA 490.</strong> Similarly in the English Case of <strong>Ridge vs. Baldwin </strong><strong>&amp; </strong><strong>others (1964) AC 40 </strong>it was held that where the employer terminated the employee's Contract unjustly, the latter was entitled to compensation. Counsel prayed that the Plaintiff should pay general damages/compensation for the unlawful suspension and dismissal of the Defendant.</p> <p>With reference to the allegations of embarrassment, inconvenience, financial loss and mental stress, the Defendant’s Counsel submitted that the Plaintiff falsely claimed that the Defendant was fraudulent and this soiled his name for 9 years while under trial, in the Criminal Proceedings at Buganda Road Magistrates Court. He was acquitted. Managers in the banking business exercise a higher duty of care and diligence because they manage peoples’ finances and are held in high esteem by the society. They enjoy a special fiduciary position with their actual or potential customers and the general public. He contended that the Plaintiff’s conduct seriously undermined the reputation of the Defendant who had been appreciated a few months back for his meritorious service delivery according to exhibit D2.</p> <p>The Bank was paid its money by its customers between 2002 and 2003 as earlier submitted. It kept utilizing the money it in its business, while the Defendant was out of employment for 12 years up to 2014 without any communication of his fate. He could not be employed in any financial institution or other business in a fiduciary position with reputable customers, given the allegations of fraud on his head.</p> <p>The Counterclaimant’s Counsel further submitted that according to Exhibit P 12, the Defendant was put under duress to pledge to immediately put his properties on sale. This property included his three Mercedes Benz lorries and trailers, two Scania trailers and a house. From the Court record in earlier proceedings in Misc. Application No. 362 of 2006 and exhibit D11, he suffered mental stress due to the<br /> ex parte judgment where he was unjustly ordered to pay Uganda shillings 876,540,298/=; interest thereon at 20% per annum, general damages and costs while he was sick and undergoing medical treatment abroad. The Defendant fought hard to set aside this ex parte Judgment.</p> <p>Furthermore, he was imprisoned in Luzira and had to suffer further mental stress, incur legal expenses, and untold inconvenience and embarrassment while undergoing trial at Buganda Road Court for nine (9) years before he was finally acquitted.</p> <p>The Counterclaimant’s Counsel submitted that this suffering was in addition to the same pain the Defendant was going through while defending this case of causing financial loss of Uganda shillings 921,883,306/= to the Bank which money the Bank already received from its customers between 2002 and 2003. It kept on tormenting him unfairly. In the premises, the Defendant prayed for general damages of at least Uganda shillings 600,000,000/= with interest at 30% per annum from the date of judgment together with costs of the main suit and the counterclaim.</p> <p><strong>In rejoinder</strong> the Plaintiff’s Counsel submitted that in the plaint the Plaintiff's claim in paragraph 3 of the plaint was for Uganda shillings 912,883,306/=. In its prayers, the Plaintiff prayed for Uganda shillings 912,883,306/=<em>.</em> After the testimonies of the Plaintiff's witnesses, an amount of Uganda shillings 912,620,298/= was proved as the loss incurred by the Plaintiff. Whereas the discrepancy in the figures mentioned in the plaint may be a typographical error between <strong>921 and </strong>912, the court is enjoined to award the lesser figure of Uganda shillings 912,620,298/= as brought out in evidence. In the case of <strong>Uganda Commercial Bank vs. Kigozi C.A.C.A. No. 21 OF 1999, </strong>the Court of Appeal held that the court will not be barred from awarding a higher or lesser figure provided it is guided by evidence. He reiterated prayers for the award of Uganda shillings 912,620,298/= and prayed that court awards the entire amount as proved in evidence.</p> <p> </p> <p><strong>Resolution of the Counterclaim issue of: Whether the Defendant was lawfully suspended and/or dismissed by the Plaintiff?</strong></p> <p>I have duly considered the above submissions of the parties through the Counsel. The counterclaim is for declaration that the continued suspension of the Counterclaimant by the counter Respondent was illegal; the dismissal was unlawful and violation of the rights of the Defendant, payment of the Counterclaimant salary arrears and fringe benefits, general damages, interest at 30% per annum and costs of the counterclaim.</p> <p>The Counterclaimants Counsel submitted that the Counterclaimant/Defendant was suspended from service contrary to regulations governing the employment. The Counterclaimant was suspended with effect from 17th May, 2002 under regulation 30.</p> <p>The Counterclaimants Counsel submitted that the basis of the suspension of the Counterclaimant was the prosecution where the Counterclaimant was charged with causing financial loss. Subsequently, ex parte judgment was entered against the Defendant in September 2004 and the case was reviewed in November 2005 and services of the Counterclaimant were terminated forthwith. The Defendant was on suspension from 22nd July, 2002 up to 8th November, 2005. The Counterclaimant’s Counsel submitted that this was in breach of the fundamental rights of the Defendant to be kept without payment for three years and four months. Secondly, the dismissal of the Counterclaimant was not communicated to the Counterclaimant until an order of the court in 2014 and by letter dated 26th May, 2013 exhibit P3 is when the Defendant got to know about his dismissal. The Defendant never appeared before a disciplinary committee following his suspension. Charges were pending before a court of law when he was dismissed. Subsequently he was acquitted on 4th October, 2011 and has never been given a hearing with regard to disciplinary proceedings in the Respondent to the counterclaim.</p> <p>In reply, Counsel for the Respondent submitted inter alia that the Counterclaimant caused financial loss of Uganda shillings 876,540,298/= through his fraudulent acts. Shortly after judgment, he was summarily dismissed by a letter dated 8th November, 2005 exhibit P3. In the premises, the suspension and dismissal were justified. He further contended that summary dismissal is allowed for gross misconduct by regulation 23 (i) of the regulations. Regulation 23 (iii) permits the Respondent's management to take disciplinary action against an employee where he or she is found liable by a court of law for fraud whether in civil or criminal proceedings. The disciplinary action does not require further hearing and the staff can be dismissed forthwith. He further contended that the acquittal of the Plaintiff came long after ex parte judgment was entered consequent upon which the Counterclaimant was dismissed on 8th November, 2005.</p> <p>By this court setting aside the judgment, it does not entitle the Counterclaimant to reinstatement. Moreover the Counterclaimant had reached retirement age and cannot be reinstated.</p> <p>As far as the quantum is concerned, the Counterclaimant did not prove his salary and special damages are supposed to be pleaded and specifically proved according to the authorities cited in the submissions of Counsel above. The Plaintiff did not qualify for terminal benefits because he had not been in continuous service of the Respondent to the counterclaim in terms of regulation 24.</p> <p>The Counterclaimant was in service from 1973 of 1995 whereupon he resigned and was later re-employed from February 1998 and 2002 when he was suspended. He was then dismissed in 2005. In the premises his benefits did not accrue in accordance with regulation 24.</p> <p>I have carefully considered regulation 30 of exhibit PE 2 which gives the terms of service of the Counterclaimant. Regulation 30 provides as follows:</p> <p>"(a) Where an employee has been charged with a criminal offence and the same is pending in a court of law, the management may, having regard to the nature of the offence and the public interest, order the suspension of such employee.</p> <p>(b) During the first three months of the suspension, the employee may be receiving half salary and thereafter the management shall review the case with a view to either extending the same or terminating services.</p> <p>(c) The Management shall as soon as circumstances allow review the position of the suspended employee if he has been acquitted or discharged by a court of law.</p> <p>(d) Notwithstanding the provisions of regulation 30 (c) the management may dismiss the employee if it thinks that his continued employment will prejudice the interests of the bank."</p> <p>Regulation 30 (a) permits the management of the Respondent to the counterclaim to suspend a member of staff who has been charged with a criminal offence. The fact that criminal proceedings were pending before a court of law where the Counterclaimant was charged with the offence of causing financial loss is not in dispute and therefore management was entitled to suspend the Counterclaimant. Secondly, regulation 30 (b) provides that during the first three months of the suspension, the employee may be receiving half salary and thereafter the management shall review the case with a view to either extending the same or terminating the services.</p> <p>The Counterclaimant’s services were not terminated when he was on suspension. In fact the suspension continued. Regulation 30 (b) gives the Management discretionary powers whether to terminate or extend the suspension which is expected to be on half pay. In the premises, the suspension cannot be unlawful and the extension of the suspension could only be in the interest of the Counterclaimant because it is expected to abide the outcome of the criminal proceeding. The management have discretionary powers for reasons stipulated in the regulations to terminate the services. This is made explicitly clear by regulation 30 (c) which provides that management shall as soon as circumstances allow, review the position of the suspended employee if he has been acquitted or discharged by a court of law.</p> <p>From a clear reading of the above regulation, management can act after the employee has been acquitted or discharged by a court of law. Some points may be made from this provision. The first one is that it envisages that the staff is on suspension. Secondly it envisages action by the management as soon as circumstances allow after the staff has been acquitted or discharged by a court of law. The question is whether circumstances allowed? Prosecution of the Counterclaimant was never completed and judgment was only issued in 2011. In the meantime, the Respondent to the counterclaim had filed this suit against the Counterclaimant which resulted into an order for the Counterclaimant to pay a sum of Uganda shillings 876,540,208/= together with general damages of 10,000,000/= interest on the special damages at the rate of 20% per annum from November 2002 till payment in full. The suit was filed on 30th October, 2002 and the order reads that interest runs from the date of filing the suit till payment in full. Judgment was delivered on 1st November, 2005.</p> <p>On the other hand the Counterclaimant was acquitted on 14th October, 2011. The issue for consideration is whether the Respondent to the counterclaim was within its rights to terminate the services of the Counterclaimant as it did after judgment was issued on 1st November, 2005. This situation is clearly catered for by regulation 30 (d) which provides that notwithstanding the provisions of regulation 30 (c) the management may dismiss the employee if it thinks that his continued employment will prejudice the interests of the bank. In other words the management does not have to wait for the acquittal or discharge of the employee and the sole basis upon which the management may dismiss the employee who is facing criminal prosecution is if his continued employment will prejudice the interests of the bank. What is prejudicial to the interests of the bank can be determined by the management.</p> <p>What remains for consideration is whether the proper procedure was applied when services were terminated.</p> <p>The Respondent to the Counterclaimant through Counsel relied on Regulation 23 which deals with the disciplinary proceedings. It provides that without prejudice to any criminal or civil liability, a member of staff may be deemed to have committed an offence and may be liable to disciplinary action under the regulations if found guilty in any of the listed cases; in cases where he or she is convicted of a criminal offence; secondly, if he refuses or neglects to obey any lawful orders and instructions or if he misbehaves towards another member of staff or the public; thirdly, for refusal or neglect or omission to perform any of the duties; for incompetence; absenteeism from duty without prior permission or reasonable cause for five continuous days for 10 days in a calendar year; accepting presents for purposes of winning his favour; failing to pay debts when the fall due, declared bankrupt, insolvent or enters into an arrangement with its creditors; if by act or omission he conducts himself in a manner prejudicial to the proper performance of any of his duties or unfitting of an employee of the bank; if he is guilty of gross misconduct or negligence; if he is guilty of negligence loss, or damage of the property of the bank; if he fails to safeguard the business secrets of the bank/or divulges the same unauthorised persons and no employee is allowed to give any information about the bank to newspapers without the permission of the managing director/general manager.</p> <p>The Counsel for the Respondent to the counterclaim specifically relied on the provision for gross misconduct or negligence.</p> <p>Before concluding the issue, it is pertinent to consider the letter terminating the services for establishing the ground upon which the termination proceeded. This letter was admitted in evidence as exhibit P3 and is dated 8th November, 2005. It is addressed to the Defendant on the subject of: "Termination of Services".</p> <p>The letter makes reference to the judgment of the court dated first of November 2005 which I have referred to. From the second last paragraph it writes as follows:</p> <p>"The court found that you were guilty of breach of duty and fraudulent, thus causing financial loss.</p> <p>You are therefore hereby dismissed forthwith from the service of the bank under regulation 23 (i) of the Bank Regulation, Terms and Conditions of Service."</p> <p>The regulations relied upon by the Respondent to the counterclaim is clearly stipulated in the letter which speaks for itself. It provides that:</p> <p>"23 (i) Without prejudice to any criminal or civil liability, a member of staff may be deemed to have committed an offence and may be liable to disciplinary action under this regulation if found guilty of any or all of the following cases, namely:"</p> <p>It is true that among the instances for disciplinary proceedings is where a member of staff is found guilty of gross misconduct or negligence. Whereas in the letter of termination exhibit P5, the specific ground relied on is that of breach of duty and fraud thereby causing financial loss. The ground in the termination letter purports to rely on the judgment of the High Court.</p> <p>The first question for consideration is what disciplinary action is. Disciplinary action is provided for under the said regulation 23 where it is provided that the bank may take appropriate disciplinary action against a staff for persistent failure to do his duties and responsibilities provided he has been formally informed of the same and before a final decision is taken, he has been given a chance to defend himself. The specific provision provides as follows:</p> <p>"The management may take an appropriate disciplinary action against an employee who persistently fails in his duties and responsibilities; provided he has formally been informed of the same and before a final decision is taken, he has been given a chance to defend himself."</p> <p>The Counterclaimant Counsel submitted that the Counterclaimant was not given a hearing when the letter of termination was given. Secondly, he was not notified of the termination.</p> <p>In reply, the Plaintiff/Respondent to the Counterclaimant's Counsel submitted that termination can be summary.</p> <p>I do not have to consider whether termination can be summary because the regulations specifically provided for disciplinary action after a defence by the person sought to be subjected to disciplinary action. The Plaintiff was never called by way of a notice of the offences against him, so as to give his defence before any disciplinary action could be taken against him. Under regulation 23 (ii) disciplinary action include a warning; deduction on monthly salary in the amount of money as fine for the offence committed; forfeiture of one's pay if absent from duty without leave reasonable excuse; deduction of salary of any amount of money to restore property negligently lost or damaged; reprimand; deferment of the increment; demotion; suspension with half pay or without pay; termination of services and instant dismissal.</p> <p>The Counterclaimant was not given notice of any disciplinary proceedings/action, was not given a hearing and was not even notified of the disciplinary action of instant dismissal. Criminal proceedings terminated in his acquittal.</p> <p>The Respondent to the counterclaim is barred by the doctrine of estoppels from asserting that the Counterclaimant was summarily dismissed or dismissed after review pursuant to suspension.</p> <p>In the premises, the Respondent to the counterclaim was entitled to suspend the Counterclaimant with half pay under regulation 30 (b) pursuant to the criminal proceedings commenced against the Counterclaimant for causing financial loss. However the Counterclaimant was suspended without pay contrary to regulation 30 of the terms and conditions of service of the Respondent to the counterclaim.</p> <p>Secondly, the termination was without notice of disciplinary action and also without a right of defence as provided for by regulation 23 of the regulations. It follows that the termination of the Counterclaimant services was unlawful.</p> <p><strong>Remedies</strong></p> <p>Following the resolution of the issue of whether the Defendant caused financial loss to the Plaintiff, I have carefully considered the last issue dealing with the remedies available to the parties with regard to the Plaintiff’s suit as well as the counterclaim of the Defendant.</p> <p>As far as the plaint is concerned, the Plaintiff prayed for judgment for Uganda shillings 912,620,298/= together with interest at the rate of 26% per annum from the date of filing the suit till the date of judgment and costs of the suit. On the other hand the Defendants Counsel sought to have the suit dismissed with costs.</p> <p>From the resolution of the first issue the question was whether the Defendant had caused financial loss in the amount claimed in the plaint.</p> <p>Following the resolution of the issues, the Plaintiff’s claim based on the evidence is for Uganda shillings 912,620,298/=. The court has already resolved the question of the outstanding amount claimed as follows:</p> <ol> <li>Out of the total claim of the Plaintiff a sum of Uganda shillings 171,194,949/= had been paid before the suit was filed in October 2002. The sum must first be deducted from the total claim of the Plaintiff.</li> <li>Secondly, a sum of Uganda shilling 10,000,000/= was paid on the 13th of May 2002 on account number 446230 according to exhibit P5. Secondly an amount of Uganda shillings 156,396,209/= was paid on 21st July, 2002 leaving debit balance of Uganda shillings 8,027,050/=. By the time the suit was filed given the charging of interest, the account was in debit by an amount of Uganda shillings 13,685,426/=.</li> <li>In exhibit P9 Hussein Ali Abdi acknowledged being indebted to the bank in the sum of Uganda shillings 384,438,140/= before the suit was filed.</li> </ol> <p>It follows that the following amounts will be deducted from the total claim of the Plaintiff of Uganda shillings 912,620,298/=. Namely Uganda shillings 171,194,949/= and Uganda shillings 156,396,209/=. Secondly, Uganda shillings 384,438,140/=. This leaves the balance of Uganda shillings 200,591,000/= which can be considered on its merits.</p> <p>The evidence in support was exhibit P13 which is the audit report that does not prove who in actual fact was responsible for the loss. Secondly there is no evidence of exhibit P4 which are the cheques that had been kept by PW1 and subsequently handed over to the Defendant according to the testimony of PW1 and PW2. The testimony of PW1 is unreliable. None of the receipt in the book he tendered in evidence exhibit P6 relates to any alleged financial loss in terms of exhibit P13 and exhibit P4. These documents deal with the position by May 2002. The evidence clearly demonstrates that subsequently the relevant accounts were credited with deposits thereby reducing the total claim after the audit report had been filed and the suit was subsequently filed including amounts which had been paid.</p> <p>In terms of rule for special damages, the cheques which were admitted in exhibit P4 could have made an excellent piece of evidence to claim special damages. However, the basis of the losses is the debits on Account No. 1725 because cheques were not returned within the prescribed period of three days. The cheques were withheld after being suspended by PW1. It is only after the loss that the cheques were according to the testimony of PW1 and PW2 handed over to the Defendant and subsequently the Defendant is alleged to have kept these cheques in his desk.</p> <p>Another important point to note is that these cheques were never debited on the various accounts from which they were issued. There was no direct credit to the account holders who issued the cheques. What happened is that because of the delay in not returning the cheques, the Plaintiffs account was debited in the clearing house. Therefore the culpable action is the delay in returning the cheques to the various persons who issued them as dishonoured cheques. As I noted earlier, this was the action jointly with the knowledge of the branch manager between PW1 and the Defendant. The Defendant testified that he was not responsible for overdrawing the accounts of the various account holders. This case does not involve overdrawing of accounts but neglect in returning cheques as dishonoured because of having no cash to back it up. It follows that it is a case of negligence of duties or a deliberate scheme.</p> <p>In the lower court, it was held that Mr Kigongo had an interest in the cheques according to the judgment of the Magistrate's Court exhibit D9. The Defendant had been charged for omission to take proper actions on cheques drawn on account number 44230, 447 7146 and 224 3602 which had insufficient funds to pay the amounts specified knowing or having reason to believe that such omission would cause financial loss to the bank. In the magistrates court the Defendant testified that the decision to keep the cheques beyond the three days grace period was not made by him and he denied having been consulted on the issue. PW1 testified that he had consulted him and that the suspension of the cheques into the suspense account was with the consent of the branch manager. Finally PW2 testified that the cheques were found with the Defendant. The entire case of the Plaintiff hangs on the testimony of the two witnesses. As I have noted earlier, the evidence of PW1 is suspect having produced exhibit P6 which has nothing to do with any financial loss and which has colossal amounts of money. If this is true, it simply means that the beneficiaries were paying back colossal sums of money to the Plaintiff bank. Nonetheless, the issue remained between PW1 and the Defendant and the evidence of the cheques cannot be brushed aside.</p> <p>While there is no evidence that Hussein Ali Abdi and Bosi Ali paid back the sums owing to the Plaintiff, they were sued in this suit and the suit against them was dismissed. Subsequently, judgment was only set aside against the Defendant because he was out of the country for treatment when the suit proceeded against him. However, because Hussein Ali Abdi undertook to pay what he had issued by way of cheques to various beneficiaries that led to the financial loss, I have deducted his amount from the total claim. This is coupled with the Defendant's evidence that he persuaded him to start paying back and there is evidence that he had started paying back by the time the suit was filed up to over Uganda shillings 156,000,000/=. No further evidence was given thereafter by the Plaintiff.</p> <p>The burden is on the Plaintiff to prove that the Defendant caused financial loss. On the balance of probabilities, there was omission to deal with the issue because the cheques were found in possession of the Defendant according to the testimony of PW2, the acting manager. I therefore find for the Plaintiff to the limited extent that the Defendant acted in breach of his duties because all the cheques in issue were the cheques of his sons. It could not be coincidentally found in his possession and the Plaintiff proved that he had knowledge about these cheques together with the PW1. He shares joint responsibility for these cheques even though it is PW1’s action of delaying the cheque beyond the three days that led to any loss by May 2002. PW1 subsequently gave the cheques to the Defendant.</p> <p>In light of what has transpired before, I award the Plaintiff general damages representing half of the remaining amount because the Plaintiff opted to proceed only against the Defendant. The rest of the suit claim against the Defendants was dismissed and the Plaintiff used PW1 as a witness against the Defendant when the evidence clearly indicates that PW1 was involved in the transaction. This was also the finding of the lower court which held that he had an interest in the cheques and the beneficiaries of the cheques had started paying back because he was following it up. Some of the amounts claimed had already been paid back.</p> <p>As against the Defendant I award the sum of Uganda shillings Uganda shillings 100,000,000/= as general damages for breach of duty.</p> <p>The above amount shall carry interest at the rate of 17% per annum from the date of the judgment till payment in full.</p> <p>The Plaintiff’s suit succeeds with costs commensurate with the amount awarded as general damages.</p> <p>As far as the counterclaim is concerned, the Defendant was unlawfully dismissed. I have duly considered the submission that the Counterclaimant did not prove his salary. I do not agree with the submissions because the specific issue is not the quantum of salary in a case of this nature. The quantum of salary is within the knowledge of the Plaintiff and cannot be an issue. It is the Plaintiff who pays all salaries of staff and the court can only deal with the period for which salary should be paid. The letter of suspension is exhibit D7 and it shows that the Defendant was suspended with effect from the 17th May, 2002 under Regulation 30 of The Staff Regulations, Terms and Conditions of Service.</p> <p> The Counterclaimant is awarded his full pay from the date of suspension until the date of his termination of employment. For the reason that the termination cannot be set aside in the circumstances the Counterclaimant is not entitled to full retirement benefits.</p> <p>I further award the Counterclaimant 3 month’s salary in lieu of notice. The termination however stands because it is evident that there was omission of duties he owed to the Plaintiff as a manager.</p> <p>I further award the Counterclaimant general damages for the pain, suffering and trauma he has been subjected inclusive of being prosecuted and failure to give him a hearing before his dismissal in the amount of Uganda shillings 50,000,000/=.</p> <p>The amounts in the counterclaim in relation to salary and the award of salary in lieu of notice carry interest at 17% from the time of termination of employment till date of judgment.</p> <p>The decreed amount at the date of judgment will carry interest at 17% from the date of judgment till payment in full.</p> <p>The counterclaim also succeeds with costs.</p> <p>Judgment delivered in open court on the 13th of April 2017</p> <p> </p> <p><strong>Christopher Madrama Izama</strong></p> <p><strong>Judge</strong></p> <p>Judgment delivered in the presence of:</p> <p>John Mike Musisi for the Plaintiff</p> <p>Kivumbi Ibrahim holding brief for Kiryowa Joseph for the Defendant</p> <p>Defendant is in court</p> <p>Charles Okuni: Court Clerk</p> <p>Julian T. Nabaasa: Research Officer Legal</p> <p> </p> <p><strong>Christopher Madrama Izama</strong></p> <p><strong>Judge</strong></p> <p><strong>13th April, 2017</strong></p> <p> </p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-4fd32b76e66122caeb7c66c1376ccae0"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/commercial-court/2017/29/commercial-court-2017-29.docx" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Wed, 10 May 2017 13:19:42 +0000 Eunice Logose 27310 at https://old.ulii.org David May v Busitema Mining CIE Ltd ((HCT-00-CV-CS-0086-2008)) [2009] UGHC 135 (26 June 2009); https://old.ulii.org/ug/judgment/high-court/2009/135 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/contract-employment-0" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Contract of Employment</a></li><li class="field-item odd"><a href="/tags/termination-and-dismissal" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Termination and dismissal</a></li><li class="field-item even"><a href="/tags/unlawful-or-unfair-dismissal" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Unlawful Or Unfair Dismissal</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p><strong>THE REPUBLIC OF UGANDA</strong><br /> <strong>IN THE HIGH COURT OF UGANDA AT KAMPALA<br /> (CIVIL DIVISION)</strong><br /> <strong>HCT-00-CV-CS-0086-2008</strong></p> <p><br /> <strong>DAVID MAY :::::::::::::::::::::::::::::::::::::::::::::::::::::::PLAINTIFF</strong></p> <p>&nbsp;</p> <p><strong>VERSUS</strong></p> <p><strong>BUSITEMA MINING CIE LTD</strong><strong>:::::::::::::::::::::::::::::::DEFENDANT</strong><br /> <br /> <strong>BEFORE: </strong><strong><u>THE HONOURABLE MR. JUSTICE YOROKAMU BAMWINE</u></strong><br /> <br /> <strong><u>JUDGMENT</u></strong></p> <p>&nbsp;</p> <div>The plaintiff’s claim is for U.S $120,902.89 (US dollars one hundred and twenty thousand, nine hundred and two, point eight nine cents) as outstanding remuneration due under the employment contract, interest thereon, general damages and costs of the suit. It is the plaintiff’s case that he was employed by the defendant; that under the contract with the defendant company he was entitled to remuneration of US $7000 per month of which only US$4000 was paid to him per month for the duration of the contract, and, that a sum of US$120,902.89 is due and owing under that contract. It is the plaintiff’s contention that the defendant was legally and contractually liable to pay the remuneration and is also liable for payment of the damages and costs of the suit.<br /> <br /> The defendant denies liability. It contends that the contract of employment which is the basis of the current suit is illegal and unenforceable. It has raised a point of law for the dismissal of the suit.<br /> <br /> At the conferencing the parties agreed that:<br /> 1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</div> <p>&nbsp;</p> <div>The plaintiff was employed by the defendant Company as General Manager of its mine at Busia upon a contract commencing on 01/01/2002.</div> <div><br /> 2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</div> <div>Under the contract, the plaintiff was entitled to a monthly salary of US$7000 net of all taxes and social security deductions.</div> <div><br /> 3.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</div> <div>Under the terms of the said agreement US$4000 was payable immediately at the end of every month and balance of US$3000 was to be deposited on a company savings account to be paid to him after commencement of production.</div> <div><br /> 4.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</div> <div>The plaintiff resigned from the defendant company.</div> <div><br /> <strong>Issues:</strong><br /> 1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</div> <div>Whether there was legally a valid and enforceable contract of employment between plaintiff and defendant.</div> <div><br /> 2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</div> <div>Whether US$120,902.92 (sic) or any sum is due and owing to the plaintiff from the defendant</div> <div><br /> 3.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</div> <div>Remedies, if any.</div> <div><br /> Counsel: &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Mr. Noah Mwesigwa for the plaintiff<br /> &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Mr. Paul Kuteesa for the defendant<br /> <br /> <br /> <strong>Issue No. 1:</strong><br /> <strong><em>Whether there was legally a valid and enforceable contract of employment between plaintiff and defendant.</em></strong></div> <div>&nbsp;</div> <div>It is contended for the plaintiff that there was no legally valid and hence enforceable contract of employment; that the contract of employment between the plaintiff and the defendant dated 01/01/2002, Exh. P1, is a nullity and the plaintiff cannot rely on it to found a cause of action neither can the court enforce such an illegal contract.<br /> <br /> The alleged illegality stems from the fact of the impugned contract not being approved or attested in accordance with S. 14 (1) of the Employment Act, Cap. 219. Under that law, subject to Section 13, a foreign contract is not enforceable unless it has been approved or attested in accordance with that Act.<br /> <br /> I should point out at this stage that the Employment Act, Cap. 219, is no longer on our Statute Books. It was repealed and re-enacted as the Employment Act (Act 6 of 2006) which came into force on 7<sup>th</sup> August, 2006 by virtue of S.I 33/2006 (Employment Act (Commencement) Instrument, 2006). However, the contract of employment between the plaintiff and the defendant is dated 01/01/2002, implying that it was governed by the repealed law. It is contended for the plaintiff that the proper law governing the matter is the Employment Act, 2006 and not the repealed Statute. Counsel’s argument on this point runs as follows:<br /> <br /> “First we contend that the Employment Act, Cap. 219 is not applicable and the proper law governing the matter in (sic) the Employment Act, 2006. Your Lordship, the entire Employment Act Cap. 219, was repealed by Section 98 of the Employment Act, 2006 (herein the 2006 Act) and ceased to the law applicable from the 7<sup>th</sup> day of August, 2006, when the latter Act came into force. Further but without prejudice to the foregoing, Section 99 (2) of the 2006 Act provides that all matters arising under the repealed Act have to be dealt with under current applicable law. Under the current law, attestation is not required and therefore Section 14 of the repealed Cap. 219 is inapplicable. Further, Section 100 (1) of the 2006 Act, directed the defendant to issue the plaintiff with a new contract of service immediately upon coming into force of the Act.”<br /> <br /> Section 99 of the Employment Act, 2006 is a savings section. It provides:</div> <div>“(1)<strong><em>. Without prejudice to the Interpretation Act, any Statutory Instrument, made under the Employment Act repealed by Section 98, and in force at the commencement of this Act, shall, with the necessary modifications, continue in force so far as it is not inconsistent with this Act, until revoked or replaced by Statutory Instrument made under this Act.</em></strong></div> <div>&nbsp;</div> <div>(2).&nbsp;&nbsp;&nbsp;&nbsp; <strong><em>Any proceedings pending under the repealed Act before the commencement of this Act may be continued and completed under this Act.”</em></strong><br /> &nbsp;</div> <div>It is evident from the above provisions that save for the second leg of Mr. Kuteesa’s argument relating to alleged non-compliance with Regulation 50 (1) and (2) of the Mining Regulations 2004, which Regulations are still valid by virtue of S. 99 (1) of the 2006 Act, the substance of that section does not relate to the validity of the instant claim. I will comment on the Regulations later. Sub section (2) is not helpful to learned counsel for the plaintiff either since these proceedings were not pending under the repealed Act. The suit was filed on 28/04/08 when the 2006 Act was already in force. The issue as I see it is the effect of the repeal on acts or omissions committed under the repealed Act.<br /> <br /> The answer is not contained in the Employment Act of 2006 or the repealed Act. It lies in Section 13 of the Interpretation Act, Cap. 3, which provides for ‘Effect of repeal.’ It reads:<br /> &nbsp;</div> <div><strong><em>“(1) Where this Act or any other Act repeals and re enacts, with or without modification, any provision of a former Act, references in any other enactment to the provisions so repealed, shall, unless the contrary intention</em></strong><strong><em> appears, be construed as references to the provisions so re enacted.</em></strong></div> <div><br /> <strong><em>(2)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </em></strong></div> <div><strong><em>Where any Act repeals any other enactment, then unless the contrary intention appears, the repeal shall not-</em></strong><br /> <strong><em>a.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </em></strong></div> <div><strong><em>revive anything not in force or existing at the time at which the repeal takes effect;</em></strong><br /> <strong><em>b.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </em></strong><strong><em>affect the previous operation of any enactment so repealed or anything duly done or suffered under any enactment so repealed;</em></strong><br /> <strong><em>c.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </em></strong><strong><em>affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed;</em></strong><br /> <strong><em>d.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </em></strong><strong><em>………………………….</em></strong><br /> <strong><em>e.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </em></strong><strong><em>………………………….</em></strong></div> <div><br /> From the foregoing provisions of the Interpretation Act, a repeal does not in itself validate an act previously invalid. Accordingly, the validity or otherwise of the Employment contract, Exh. P1, can only be determined pursuant to the Employment Law at the time, Cap. 219. Turning again to the provisions of section 14 (1) of the Employment Act, Cap 219 (now repealed), a foreign contract was not enforceable unless it had been approved of attested in accordance with that Act. In the case <strong><em>of Prof. Syed Huq vs Islamic University in Uganda SCCA No. 47 of 1995 (reproduced in [1997] IV KALR 26)</em></strong> Wambuzi C. J did conclude thus on this point:<br /> &nbsp;</div> <div><strong><em>“………I must therefore hold, in agreement with the learned trial Judge, that Section 13 of the Employment Decree applies to the respondent and that accordingly the contract</em></strong><strong><em> between the appellant and respondent which is not in compliance with the Employment Decree is not enforceable.”</em></strong></div> <div>&nbsp;</div> <div>What was S. 13 in the Employment Decree became S. 14 in the Employment Act, Cap. 219 (the repealed Act).<br /> <br /> Section 14 (2) thereof provided guidance on how attestation could be done. It provided:<br /> &nbsp;</div> <div><strong><em>“The approval or attestation shall be by a Magistrate or an authorized officer in triplicate and shall be in such form and subject to such conditions as the Minister, may</em></strong><strong><em> from time to time prescribe……”</em></strong></div> <div><br /> Therefore, for a foreign contract of employment to be valid and enforceable, it had to comply with the provision of S. 14 of the Employment Act (Cap. 219). In other words, it had to be attested in order for it to be valid and enforceable. For the avoidance of the doubt, a foreign contract of service was deemed to exist where one of the contracting parties was a foreign element. The plaintiff herein is a British Citizen, a foreigner for that matter. And from the evidence of DW1, Sherwen, the defendant is a foreign company incorporated in the British virgin Islands and only registered in Uganda for a place of business. This evidence has not been challenged by the plaintiff. In these circumstances, the employment contract, Exh. P1, which was not attested was un enforceable under the Employment Act (now repealed).<br /> <br /> It has been argued for the plaintiff that with the coming into force of the Employment Act, 2006, the approval or attestation requirement under the repealed Act is now unnecessary. Counsel has cited to me Section 100 (1) of the said Act as rendering the hitherto invalid contract valid.<br /> <br /> Section 100 (1) of the Act is a Transitional Section. It reads:<br /> &nbsp;</div> <div><strong><em>“</em></strong><strong><em>(1)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Subject to section 3 (2), every person who is employed by an employer under a contract of service, must be offered employment by the same employer as from the day this Act comes into force on terms and conditions of employment no less favourable than those that applied to that employee’s</em></strong><strong><em> employment under the Employment Act repealed by Section 98.”</em></strong></div> <div>&nbsp;</div> <div>Learned Counsel for the plaintiff has therefore submitted that the import of this Section is that upon coming into force of this Act, the employer was obliged to provide a contract of service that complied with the provision of the now Act; that the defendant did not comply with these legal directives and is now inviting this Honourable court to give judgment in his favour.<br /> <br /> With the greatest respect to learned Counsel, I do not see any such burden being placed on the defendant by Section 100 (1) of the 2006 Act. All that the law states in that section is that existing contractual obligations under the repealed law would not be affected by the new law. The law maker pre-supposed existence of a valid contract of service, which was lacking in the instant case. While it is true, therefore, that under the current law attestation is not a legal requirement, it cannot be true that the impugned contract of service did not require attestation. It did.<br /> <br /> Learned Counsel has also submitted that the duty to have the contract attested rested on the defendant; that the defendant committed an offence by not having the contract attested and it now seeks to benefit from its criminal conduct.<br /> <br /> Section 15 (3) of the Act (Cap. 219) provided that if the omission to present the contract was due to the willful act or negligence of the employer commits an offence.<br /> <br /> I have perused the impugned contract, Exh. P1, again and again. I have not seen in it the obligation in the absence of any law to that effect, that it was the defendant’s duty under the impugned contract of employment to have it attested. That duty in my view rested on both the employer and the employee. I am therefore unable to accept the argument that both parties were not in pari delicto, that the plaintiff was innocent and cannot be denied justice on account of the defendant’s criminal acts.<br /> <br /> Learned Counsel (for the plaintiff) cited to me <strong><em>Ahmed Ibrahim Bholm vs Car and General Limited SCCA No. 12 of 2002</em></strong> in which His Lordship Justice Tsekooko while considering the question of illegal employment due to non-compliance with the law, (Immigration Act) observed that the parties were not in pari delicto since only the employer commits an offence for non-compliance with the law.<br /> <br /> It would appear to me that this argument is unsustainable on the facts of this case. In the <strong><em>Ahmed Ibrahim Bholm</em></strong> case, the contract of service itself provided that the contract was conditional upon the company obtaining a work permit on the employee’s behalf. There was also evidence confirming that it was the responsibility of the respondent to obtain the work permit for the appellant, which it had not done. It was in the context of that omission on the part of the employer that court observed:<br /> &nbsp;</div> <div><strong><em>“The respondent cannot, therefore, avoid fulfilling its obligation, under the contract, of getting the </em></strong><strong><em>work permit for the appellant by turning round claiming t</em></strong><strong><em>hat the appellant worked illegall</em></strong><strong><em>y because he had no permit.” </em></strong><br /> &nbsp;</div> <div>My understanding of that case is that there was evidence before the court that when immigration officials visited the respondent’s offices, its officials chose to conceal the appellant by ordering him to stay in, and from work, his residence rather than allow him to be seen by, or take him to, the immigration officials for him to explain his plight to them. Court found this to be evidence of guilty conduct on the part of the company. No such evidence exists herein, to raise inference that the defendant was aware as to the non-attestation of the contract document and chose to take no action. It was the duty of both parties to ensure due compliance with the law. In these circumstances, the inference is that both parties were at fault (in pari delicto). This piece of lawyer’s Latin (<strong><em>in pari delicto, potior est canditio defend</em></strong><strong><em>enti</em></strong><strong><em>s</em></strong>) simply means that where the parties are equally at fault, the defendant is in the better position. It expresses the general rule applying to otherwise void contracts. Lord Denning M. R made this clear in <strong><em>Ashmore Ltd vs Dawson Ltd [1973] 2 All E.R. 856</em></strong>:<br /> &nbsp;</div> <div><strong><em>“I know that Dawsons were parties to the illegality. They knew, as well as Mr. Bulmer, that the load was overweight in breach of the regulations. But in such a situation as this, the defendants are in a better position. In pari delicto, potior est condition defend</em></strong><strong><em>e</em></strong><strong><em>nt</em></strong><strong><em>i</em></strong><strong><em>s.”</em></strong></div> <div>&nbsp;</div> <div>It follows from this that a plaintiff might be able to recover where he could show that he is at fault to a lesser degree than the defendant. And that is what happened in the <strong><em>Ahmed Ibrahim Bholm</em></strong> case, supra. The plaintiff in the instant case has not shown that he was at fault to a lesser degree than the defendant. The Supreme Court decision in <strong><em>Ahmed Ibrahim Bholm</em></strong> is therefore distinguishable from the instant one on facts.<br /> <br /> Learned Counsel for the defendant has also submitted that the contract of employment is further rendered invalid by virtue of the provisions of the Ministry Regulations, S. I 2004 No. 71. Under this law (Regulation 50), <strong><em>every holder of a mineral right, who is not personally continuously in charge of the operations under mineral right, shall at all times have an agen</em></strong><strong><em>t at the site of the operations to be in charge of the operations and shall notify the Commissioner of every appointment or charge of such agent</em></strong>. (emphasis mine).<br /> <br /> The defence argument on this point is that for all intents and purposes the plaintiff was the agent of the defendant for its mine in Busia for purposes of Regulation 50 above.<br /> <br /> The Plaintiff’s evidence shows that he was appointed the General Manager of the defendant’s mine in Busia; that he was in charge of all operations of the mine and the day to day management of the defendant’s operations at the Mine. From the evidence the plaintiff is a mining engineer whilst DW1 Sherwen has no mining background. From the evidence of the plaintiff, therefore, that of DW1 Sherwen, and from the contract document itself, Exh. P1, the day to day management and operations of the Mine were the responsibility of the plaintiff as DW1 Sherwen solicited investors for the defendant. The plaintiff’s appointment was, in my view, subject to confirmation by the Commissioner, a requirement under Regulation 50.<br /> <br /> Learned Counsel for the defendant has submitted, very correctly in my view, that non-compliance with Regulation 50 also rendered the contract invalid and unenforceable regardless of whose duty it was to ensure compliance with it. It sounds rather absurd and weird that an argument such as this should be advanced by the party who should have ensured strict compliance with the law. Even then that is beside the point. The court cannot be made an instrument of enforcing an otherwise un enforceable and illegal contract. The rule has long been established that a court of law cannot sanction what is illegal and an illegality once brought to the attention of the court overrides all questions of pleading, including any admissions made thereon: <strong><em>Makula International Ltd vs His Eminence Cardinal Nsubuga &amp; Anor [1982] HCB 11</em></strong> at p. 15.<br /> What then is the effect of all this non-compliance with the law on the plaintiff’s claim?<br /> <br /> It is trite that a contract is a legally binding agreement. An agreement arises as a result of offer and acceptance but a number of other requirements must be satisfied for an agreement to be legally binding. For instance it must be legal and the agreement must not be rendered void either by some common law or statutory rule or by some inherent defect, such as operative mistake. In the instant case, the non-compliance with mandatory provisions of the law (section 14 of the Employment Act, Cap. 219) rendered the contract void. If an act is void, then it is in law a nullity. It cannot be enforced. The reason for the law’s refusal to uphold such agreements is commonly encapsulated in the Latin maxim ex turpi causa non oritor actio (no claim arises from a base cause).<br /> <br /> The policy was well summarized by Lord Mansfield C. J. in the 18<sup>th</sup> century case of <strong><em>Holman vs Johnson Cowp. 343</em></strong> when he declared that no court will lend its aid to a man who founds his cause of action upon an immoral or illegal act. That if the cause of action appears to arise ex turpi causa……. The court says he has no right to be assisted: SUCCESS IN LAW by Richard H. Bruce, 4<sup>th</sup> Edition, at p. 260. It (the policy) was also approved in <strong><em>Scott vs Brown, Doering, Mcnab &amp; Co. [1892] 2 QR 724 at 728 when Lindley, L. J.</em></strong> declared:<br /> <br /> “<strong><em>Ex turpi causa non oritor action. This old and well known legal maxim is founded in good sense, and expresses a clear and well recognized legal principle, which is not confined to indictable offences. No court ought to enforce an illegal contract or allow itself to be made the instrument of enforcing </em></strong><strong><em>obligations alleged to arise out of a contract or transaction which is illegal, if the illegality is duly brought to the notice of the court, and if the person invoking the aid of the court is himself implicated in the illegality. It matters not whether the defendant has pleaded the illegality or whether he has not. If the evidence adduced by the plaintiff proves the illegality the court ought not to assist him</em></strong>.”<br /> <br /> For the reasons I have given above, court is in agreement with the submission of learned Counsel for the defendant that Section 14 of the Employment Act, Cap. 219 (since repealed) applied to the plaintiff. It is immaterial that it has since been repealed as long as there is evidence that there was non-compliance with it as it lasted. Accordingly the impugned contract is un enforceable on account of non-compliance with that law.<br /> <br /> I would answer the first issue in the negative and I do so.<br /> <br /> <strong><em>Issue No. 2: Whether US $ 120,902.92 or any sum is due and owing to the plaintiff from the defendant company</em></strong><strong><em>.</em></strong><br /> <br /> Having found under issue No. 1 that there is no valid and enforceable contract of employment, it follows that the sum claimed herein is not due and owing from the defendant. Subject to court’s decision on the prayer for costs, I would dismiss the suit.<br /> <br /> <br /> However, in the event of a successful appeal, since the plaintiff has prayed for special and general damages, I shall try to address the issue of damages as well, for academic purposes only.<br /> <br /> I will start with special damages.<br /> The rule has long been established that special damages must be pleaded and strictly proved by the party claiming them, if they are to be awarded.<br /> <br /> In paragraph 4 (d) of the plaint the plaintiff has averred that a sum of US$120,902.89 being salary arrears has accrued to him under the contract agreement and that it remains outstanding to date. He has attached a summary sheet, Exh. P4, indicating how he arrived at that figure.<br /> <br /> It is an admitted fact that under the terms of the employment agreement, US$4000 was payable immediately at the end of every month and balance of US$3000 was to be deposited on a company savings account to be paid to him after commencement of production. In view of this admission, I have failed to appreciate learned counsel for the defendant’s argument that the company could only pay when it was in a financial position to pay. It is of course correct that the court cannot renegotiate the contract for the parties. However, as counsel for the plaintiff has correctly submitted, it is the duty of this court to interpret such contracts and render justice to the parties. From the construction of the agreement, the plaintiff was promised that US$3000 would be deposited in the savings account monthly to be paid to him immediately the company was in position to pay. In interpreting the clause, I cannot lose sight of the fact that the employment contract was negotiated at a time when there was no activity at the Mine. The plaintiff was recruited to establish that Mine. It is the evidence of the parties that the Mine is now operational, thanks to the effort of the plaintiff. DW1 Sherwen did concede that the plaintiff was appointed as director but locked out of Board meetings, implying that he was not in position to ascertain the complete financial status of the company as a General Manager. He (DW1 Sherwen) also conceded that the company is not in liquidation or under receivership. By necessary implication, it is a going concern, struggling to survive like any other business organization.<br /> <br /> In considering this issue, I have considered the intention of the parties, the surrounding circumstances, the commercial purpose of the agreement and what makes commercial sense in transactions of this nature. Upon doing so, I have come to the conclusion that as the parties negotiated the terms of employment, it could not have been the intention of any of them that the plaintiff would accept contract price of US$7000, be paid US$4000 monthly and do without the balance until the defendant felt that it was in position to pay. This to me sounds rather illogical and extortionist. In my view, the words “<em>immediately the company is in position to pay</em>” must be construed in the context of the plaintiff’s recruitment by the defendant being at a time when business had not commenced. This was in 2001. It is not disputed that the plaintiff served the company for more than five years thereafter. He would, in these circumstances, be entitled to the difference between the contract price (US$7000) and what he had been paid along the way, in the event that court found the contract enforceable.<br /> <br /> As regards the amount, it is the law that a fact is said to be proved when the court is satisfied as to its truth, and the evidence by which that result is produced is called the proof. The general rule is that the burden of proof lies on the party who asserts the affirmative of the issue or question in dispute. When that party adduces evidence sufficient to raise a presumption that what he asserts is true, he is said to shift the burden of proof; that is, his allegation is presumed to be true, unless his opponent adduces evidence to rebut the presumption. In the instant case, the plaintiff pleaded in his plaint and adduced evidence at the trial to show that the defendant owed him salary arrears and other benefits under the contract to the tune of US$120,902.89. He came up with a summary sheet, Exh. P4, which shows very meticulously how he arrived at that figure. That position was given to the defendant at the time of filing. There is evidence that before the suit was filed, the defendant did pay to the plaintiff a hefty sum of about US$75.000 towards his claims. The computation takes all that into account.<br /> <br /> On being shown Exh. P4, the sole witness for the defendant, DW1 Sherwen, stated:<br /> &nbsp;</div> <div><strong><em>“I have seen the document before. He provided it to me on adhoc basis. I never verified the content. He was my General Manager and I trusted him implicitly. I still do. So I don’t feel any need to verify these figures. I probably couldn’t at this stage. I presume the computation is correct.”</em></strong><br /> &nbsp;</div> <div>Surely if the computation had been unacceptable to them on account of being a fabrication, they (the defendants) have had ample time, space and opportunity to verify the claim. They have not done so. The plaintiff has in these circumstances adduced evidence sufficient to raise a presumption that the amount stated in his plaint is correct. He has thereby shifted the burden of proof to the defendant. I have already made a finding that the defendant didn’t adduce any evidence to challenge the plaintiff’s claim, beyond denial of liability to settle it. Accordingly if I had found that the contract of employment was enforceable, the US$120,902.89 (not point 92 as it appears in Issue No. 2) would have been decreed to him.<br /> <br /> As regards general damages, these are at large. The quantum would be within the discretion of court. Evidence has been adduced that the plaintiff suffered inconvenience and has been deprived of his accrued rights under the impugned contract. Working on the presumption that he would be entitled to general damages, I would have awarded him damages assessed at Shs.5,000,000/= (as its equivalent in dollars at the current exchange rate) with interest and costs of the suit.<br /> <br /> For reasons I have endeavoured to give, the suit stands dismissed. Given the court’s finding that the impugned contract is unenforceable on account of non-compliance with mandatory statutory provisions, and that both parties were at fault, I would order that each party bears its own costs.<br /> <br /> <br /> <br /> <br /> Orders accordingly.<br /> <br /> <br /> <br /> <strong>Yorokamu Bamwine<br /> JUDGE<br /> 26/06/2009</strong><br /> <br /> <br /> <strong>26/06/2009:</strong><br /> Kenneth Sebagayi for defendant<br /> Parties absent.<br /> <br /> <strong>Mr. Sebuga</strong><strong>yi:</strong><strong> </strong>Holding brief for Mr. Paul Kuteesa.<br /> <br /> <strong>Court:</strong><br /> Judgment delivered.<br /> <br /> <br /> <strong>Yorokamu Bamwine<br /> JUDGE<br /> 26/06/09</strong><br /> <br /> <br /> &nbsp;</div> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-ca6942386ba14e6ea27e46b40da7b26e"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/high-court/2009/135/high-court-2009-135.rtf" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Mon, 27 Jul 2015 13:59:00 +0000 Anonymous 17650 at https://old.ulii.org Reuben Kajwarire v Attorney General (Civil Suit No. 214 Of 2005) ((Civil Suit No. 214 Of 2005)) [2009] UGHC 127 (27 June 2009); https://old.ulii.org/ug/judgment/high-court/2009/127 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/labour-and-employment-law" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Labour and Employment Law</a></li><li class="field-item odd"><a href="/tags/termination-and-dismissal" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Termination and dismissal</a></li><li class="field-item even"><a href="/tags/unlawful-or-unfair-dismissal" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Unlawful Or Unfair Dismissal</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p><strong>THE REPUBLIC OF UGANDA</strong><br /> <strong>IN THE HIGH COURT OF UGANDA AT KAMPALA</strong><br /> <strong>Civil Suit No. </strong><strong>214 OF 2005</strong><br /> &nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p><strong>REUBEN KAJWARIRE ::::::::::::::::::::::::::::::::::::::::::::PLAINTIFF</strong></p> <p>&nbsp;</p> <p>&nbsp;</p> <p><strong>VERSUS</strong></p> <p><br /> <strong>ATTORNEY GENERAL ::::::::::::::::::::::::::::::::::::::::: DEFENDANT</strong><br /> <br /> <br /> <strong>BEFORE: </strong><strong><u>THE HONOURABLE MR. JUSTICE YOROKAMU BAMWINE<br /> <br /> <br /> JUDGMENT</u></strong></p> <p>&nbsp;</p> <div>The plaintiff’s claim against the defendant is for a declaration that he is entitled to pension, an order that he be paid his pension dues and arrears since March 1993; interest on the pension arrears from the date of termination till payment in full and interest on the aggregate sum from the date of filing the suit till judgment. He also prays for the costs of the suit.<br /> <br /> At the scheduling conference there were no agreed facts.<br /> <br /> <strong>Issues:</strong><br /> 1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</div> <p>&nbsp;</p> <div>Whether the plaintiff was an employee of the defendant.<br /> 2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Whether the plaintiff was a pensionable officer.<br /> 3.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Whether he is entitled to the reliefs sought.</div> <div><br /> I will handle them in the same order.<br /> &nbsp;</div> <div><strong>Issue No. 1: </strong><strong><u>Whether the plaintiff was an employee of the defendant</u></strong><strong>.</strong></div> <div><br /> It is not disputed by the defendant that the plaintiff was appointed to the post of clerical officer vide his appointment letter dated 15<sup>th</sup> September, 1978, Exh. P1, by Soroti Flying School just after the college of the East African Community in 1977. Soroti Flying School then fell under Ministry of Aviation and Communication.<br /> <br /> It is, however, argued on behalf of the defendant that the school, after the collapse of the East African Community was a self-accounting institution, implying that it would receive lump sums of funds from Government to fund its programs and also meet the wage demands of its employees. The import of this argument is that it was a separate entity from Government and their employees were not Civil servants.<br /> <br /> I do not think that the alleged self-accounting status of the School in any way defeats the plaintiff’s claim against the defendant. The fact of the School being self-accounting is contained in the evidence of the plaintiff. He testified:<br /> &nbsp;</div> <div><strong><em>“The School was self-accounting, getting funds from Ministry of Finance and paying workers directly.</em></strong></div> <div>&nbsp;</div> <div><strong><em>In 1982 the School was taken over by Public Service. So Public Service started paying us.”</em></strong></div> <div><br /> This is evidence provided by the plaintiff himself. That Public Service was paying him salary at the time of retrenchment appears to me to be undisputed. The sole witness for the defence, DW1 Joseph Nanseera, stated that he did not have any proof that the plaintiff was not being paid by Public Service. If he was being paid by Public Service, in the absence of evidence that he accessed the pay roll illegally, the presumption is that he was an employee of the defendant. In any case, the plaintiff’s letter of retrenchment, Exh. P2, is in my view further proof that he was an employee of the defendant at the time of retrenchment. It was written by the Head of the Civil Service, one Martin Orech, and it was not even copied to the Director of Soroti Flying School where he worked. No evidence has been presented to court that the appointment letter, Exh. P1, was invalid or that the letter of retrenchment, Exh. P2, was issued in error. If anything, DW1 Nanseera, confirmed that the plaintiff was retrenched by Government. I would find it surprising that Government could retrench anyone not in its employment.<br /> <br /> From the evidence, it would appear to me that the plaintiff was indeed appointed by East African Civil Flying School in 1978 as a Clerical Officer on probation of two years but under permanent and pensionable terms. The probationary appointment was subject to confirmation. The two years expired and therefore the probationary period lapsed. Even then the defendant continued employing and recognizing him as an employee and paid him salary.<br /> <br /> There is no evidence that the retrenchment came at a time when the plaintiff’s probationary appointment was under review, to raise inference that the probation period had been extended for any valid reason. I’m cutely aware that confirmation in Civil Service is dependent upon the employee’s performance and that this is assessed through confidential appraisals. A probationary employee is one whose employment may or may not be confirmed after a specified period. If the employee does not show suitability for the job, he/she may not be confirmed in service. This implies in my view that to be denied confirmation, the employee must of necessity show non-suitability for the job.<br /> <br /> In the instant case, the plaintiff joined service on September 15<sup>th</sup>, 1978. He was shown the exit on March 23<sup>rd</sup>, 1993, after a period of 15 years in service. No evidence has been presented to court of any wilful default on his part to warrant non-confirmation in the service of the defendant. I am of the considered opinion that the plaintiff became a permanent employee of the defendant upon the lapse of the two year period. I so find.<br /> <br /> I would accordingly answer the first issue in the affirmative and I do so.<br /> <br /> <strong><em>Issue No. 2: Whether the plaintiff was a pensionable officer.</em></strong><br /> <br /> I have already indicated that the appointment was on permanent and pensionable terms. According to DW1 Mr. Nanseera, the plaintiff was not paid pension not because the appointment was not pensionable but because certain formalities of appointment had not been completed by the Public Service Commission.<br /> <br /> Learned Counsel for the defendant has cited to me <strong><em><u>Arakit Mary Margaret vs Attorney General HCCS No. 699 of 2003</u></em></strong> (Unreported) in which this court agreed with the defence contention that pension, gratuity and/or terminal benefits only apply to persons who are properly appointed, confirmed and have worked for a number of years. I consider that to be the correct legal position. However, it does not apply to the instant case in the sense that unlike Ms. Arakit Mary Margaret whom court found that she had accessed the Civil Service illegally, the plaintiff herein entered the service legally. His non-confirmation could not be blamed on him. I have already indicated that in his evidence, DW1 Mr. Nanseera, did not dispute the fact of the plaintiff’s employment relationship with the defendant. His evidence is that he was not paid pension because of certain formalities which Public Service Commission was still working on retrospectively, implying that once those formalities are completed, he will be paid his pension. The fact in my view remains that he was a pensionable officer.<br /> <br /> I would accordingly also answer the second issue in the affirmative and I do so.<br /> &nbsp;</div> <div><strong><em>Issue No. 3: </em></strong><strong><em><u>Whether the plaintiff is entitled to the reliefs sought</u></em></strong>.</div> <div><br /> His first prayer is for a declaration that he is entitled to pension.<br /> <br /> Learned Counsel for the plaintiff, Mr. John Matovu, has submitted that under the Pensions Act, once an officer has served for a period of 10 years in Public Service and is pensionable, upon retrenchment any one taken out of service on that account is pensionable. He has referred me to <strong><em><u>Abola &amp; Others vs Attorney General</u></em></strong><strong><em><u> HCCS No. 1029 of 1998</u></em></strong> (Unreported) in which over 6339 retrenchees were awarded pension upon retrenchment. My understanding of the court’s decision in that case is that persons who were retrenched in the manner similar to the plaintiff’s herein, when they already qualified for pension were entitled to their pension rights. The plaintiff herein had clocked 15 years in service. From the evidence, his retrenchment letter provided as follows:<br /> &nbsp;</div> <div><strong><em>“In addition, Government has decided that you should receive a severance payment calculated at the rate of three months salary for each completed year of pensionable service upto the maximum of 20 years qualifying service.”</em></strong></div> <div><br /> Learned Counsel for the defendant has submitted that this was an entitlement and not pension, as the plaintiff alleges, and he ought to have claimed for his severance payment, if he did not receive it then. This of course has been the problem from the time the plaintiff was retrenched, him arguing that he was entitled to pension on retrenchment which the defendant disputes.<br /> <br /> As in the instant case, the defendant had in the Abola case, supra, denied liability to pay pension to retrenched staff. At the hearing, documents were presented to court in which the defendant admitted liability. On the basis of that evidence, judgment on admission was entered against the defendant. The case was therefore not determined on merits. Be that as it is, the plaintiffs were in that case cleared by court for payment to them of commuted Pension Gratuity and monthly pension including arrears. It has not been indicated to me that the decision in the Abola case was wrong or made in error. No attempts have been made to distinguish the facts herein from those in the Abola case. Section 10 of the Pensions Act, Cap. 286, gives instances in which pension may be granted. Those instances include:<br /> &nbsp;</div> <div><strong><em>“(d) on compulsory retirement for the purpose of facilitating improvement in the organization of the department </em></strong><strong><em>to which he/she belongs, by which greater efficiency or economy may be effected.”</em></strong></div> <div>&nbsp;</div> <div>I consider this to have been the context in which the retrenchment was carried out in the instant case. In all these circumstances, I have seen no good reason or at all to deny the plaintiff the order sought or to depart from the principle in the Abola case. I would therefore declare that the plaintiff is entitled to pension dues and arrears since March 26<sup>th</sup>, 1993.<br /> <br /> The plaintiff also sought general damages.<br /> <br /> The original prayer was for breach of contract. He appears to have abandoned that in view of his failure to indicate to court that the retrenchment amounted to wrongful dismissal. It would appear to me that the delay to process his pension dues has been circumstantial in the sense that upon embarking on the exercise by the employer it was discovered that the employee had not been confirmed in service.<br /> <br /> It is not disputed that by the time he was retrenched, he had not been confirmed in service. Evidence provided by the defendant indicates that the process of confirmation is underway although in all fairness the delay cannot be defended, justified or excused. In these circumstances, while it is evident that the process of confirming him retrospectively is taking rather too long, I have not found this a proper case for a substantive award of general damages. I would therefore find the figure of Shs.7,000,000/= proposed to court to be on the higher side. I consider an award of Shs.2,000,000/= (two million only) appropriate as general damages and I do so.<br /> <br /> He has prayed for interest on the pension arrears from the date of retrenchment till payment in full at the rate of 24% per annum and 20% interest on the aggregate of sum from the date of filing the suit till judgment.<br /> <br /> I am in full agreement with the plaintiff that interest be awarded to him on the terms proposed in the plaint. It shall be so.<br /> <br /> The plaintiff shall also have the costs of the suit.<br /> <br /> In the result, judgment is entered for the plaintiff against the defendant on the following terms:<br /> <br /> (a)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</div> <div>Declaration that he is entitled to pension.</div> <div><br /> (b)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</div> <div>An order that he be paid his pension dues and arrears since March 26<sup>th</sup>, 1993.</div> <div><br /> (c)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</div> <div>Shs.2,000,000/= as general damages.</div> <div><br /> (d)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</div> <div>Interest on the pension arrears from the date of retrenchment till payment in full at the rate of 24% per annum and 20% on the aggregate sum from the date of filing the suit till judgment.</div> <div><br /> (e)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</div> <div>Costs of the suit.</div> <div><br /> <br /> <strong>Yorokamu Bamwine<br /> JUDGE<br /> 22/06/09</strong><br /> <br /> <strong>22/06/09:</strong><br /> Adrole Richard for defendant<br /> Angwella Emmanuel holding brief for John Matovu, Counsel for plaintiff.<br /> <br /> <strong>Court:</strong><br /> Judgment delivered.<br /> <br /> <br /> <strong>Yorokamu Bamwine<br /> JUDGE<br /> 22/06/2009</strong></div> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-55d80ccbf6e95877ef4b82d279485e83"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/high-court/2009/127/high-court-2009-127.rtf" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Mon, 27 Jul 2015 13:58:12 +0000 Anonymous 17480 at https://old.ulii.org Mugisha Richard Bob Kagoro v Uganda Wildlife Authority ((Civil Suit No.263 Of 2007)) [2009] UGHC 139 (27 July 2009); https://old.ulii.org/ug/judgment/high-court-uganda/2009/139 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/labour-and-employment-law" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Labour and Employment Law</a></li><li class="field-item odd"><a href="/tags/termination-and-dismissal" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Termination and dismissal</a></li><li class="field-item even"><a href="/tags/unlawful-or-unfair-dismissal" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Unlawful Or Unfair Dismissal</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p><strong>THE REPUBLIC OF UGANDA<br /> IN THE HIGH COURT OF UGANDA AT KAMPALA<br /> (CIVIL DIVISION)<br /> <br /> CIVIL SUIT NO. 263 OF 2007</strong><br /> &nbsp;</p> <p><strong>MUGISHA RICHARD BOB KAGORO::::::::::::::::::::</strong><strong>::::::::</strong><strong>PLAINTIFF</strong></p> <p>&nbsp;</p> <p><strong>VERSUS</strong><br /> &nbsp;</p> <p><strong>UGANDA WILDLIFE AUTHORITY::::::::::::::::::::</strong><strong>:::::::</strong><strong>DEFENDANT</strong></p> <p>&nbsp;</p> <p>&nbsp;</p> <p><strong>BEFORE:&nbsp; </strong><strong><u>HON. LADY JUSTICE ELIZABETH MUSOKE</u></strong><br /> <br /> <strong><u>JUDGMENT</u></strong></p> <p>&nbsp;</p> <p>&nbsp;</p> <div>This is an action brought by the plaintiff against the defendant seeking special, general and exemplary damages for wrongful and/or unlawful dismissal from employment under contract and for compensation under the Workers’ Compensation Act, Cap 225, interest and costs of the suit.<br /> <br /> According to the plaintiff, he was employed by the defendant as a driver for four years under a 4 year contract effective 1<sup>st</sup> August 2004. While on official duty as a driver at his duty station, Queen Elizabeth National Park, Rwenzori, Kasese on the 31<sup>st</sup> December 2005, and driving the defendant’s motor vehicle, Registration number UG 0231T, Land Cruiser, the plaintiff was involved in an accident when an owl bird entered the vehicle causing disturbance to the driver and other occupants. The driver lost control and collided with the bridge at a place called Bugoye and the vehicle fell into the river.<br /> <br /> The plaintiff sustained injuries and was hospitalized at Kasese Hospital and subsequently various other places and while on official sick leave in April, 2006, he was verbally dismissed by the defendant allegedly for absenteeism from duty and told to stay away from the defendant’s duty stations.<br /> <br /> He did not get his letter of dismissal until in December, 2006 when he got a dismissal letter dated 28<sup>th</sup> August 2006 with the said dismissal having retrospective effect from 27<sup>th</sup> April 2006.<br /> <br /> The plaintiff appealed against the dismissal, and the defendant, by a letter dated 5<sup>th</sup> January 2007, revised the effective date of dismissal to 23<sup>rd</sup> May 2006. The plaintiff being dissatisfied with the defendant’s action instituted this suit.<br /> <br /> The plaintiff made the following prayers:</div> <p><br /> a)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; General damages for wrongful and/or unlawful dismissal.<br /> <br /> b)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Special damages of UShs. 15,689,170= (Fifteen million, six hundred eighty nine thousand, one hundred seventy shillings only).<br /> <br /> c)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; UShs. 6,073,830= (Six million, seventy three thousand, eight hundred thirty shillings only) as compensation under the Workers Compensation Act, Cap. 225.<br /> <br /> d)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Interest on (a), (b) and (c) above at 25% per annum from the date of filing till payment in full.<br /> <br /> e)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Costs of the suit.<br /> <br /> f)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Any other with leave of court.</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <div>Upon service of the summons to file a defence on the defendant, which was duly acknowledged, as per return of service by affidavit sworn on 1<sup>st</sup> June 2007 by Loum Jackson, and filed in court on the same day, and the defendant writing another letter referring to this suit on 5<sup>th</sup> June 2007 (Exhibit P.10), the defendant did not file a Written Statement of Defence.<br /> <br /> The plaintiff applied for interlocutory judgement under Order 9 rule 8, Civil Procedure Rules, SI 71-1 and this court consequently entered judgement against the defendant on the 1<sup>st</sup> June 2007, and the suit was set down for formal proof.<br /> <br /> At the hearing, the following were the issues for the determination by court:<br /> &nbsp;</div> <p>&nbsp;</p> <p>&nbsp;</p> <div>1)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Whether the dismissal of the plaintiff from employment by the defendant was lawful.</div> <div><br /> 2)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Whether the plaintiff is entitled to the remedies sought.<br /> <br /> The plaintiff adduced evidence of one witness, himself. The first issue is whether or not the dismissal of the plaintiff from employment was lawful. The plaintiff testified that he was dismissed verbally from his duties around April or May 2006. This was when he went to report at the Defendant’s Kampala office as had been agreed with the Defendant. The information was passed on to him by the Human Resource Manager who told him he was no longer welcome. He, however, did not get his dismissal letter until December 2006, after several trips to the Human Resource office in Kampala.<br /> <br /> Counsel for the plaintiff, Mr. Mulema Richard, submitted that the plaintiff had a 4 year contract and had gone beyond the probationary period of 6 months. He was confirmed by time of dismissal. Although the appointment letter talked of a contract to be signed later, it was never availed to the plaintiff, so Counsel invited court to rely on the terms in the appointment letter produced in court by the plaintiff, as Annexture “K” to the plaint.<br /> <br /> Counsel argued that although the dismissal letter stated that the plaintiff had absented himself from duty, the dismissal was effected without an investigation of the circumstances surrounding the non-availability of the plaintiff at work. Even when they knew the defendant had been unwell and had gone on sick leave, his supervisors and the approved defendant’s medical providers where he continuously attended were never contacted. Further, no form of hearing was afforded to the plaintiff before the decision to discuss him was taken.<br /> <br /> Counsel further referred court to the plaintiff’s testimony regarding the sick leave granted by the Defendant’s Park Supervisor up to March 19<sup>th</sup> 2006, and to the exhibited medical reports giving the plaintiff successive extensions of sick leave. In April, 2006, according to Exhibit P.19(b) and (c), the plaintiff was granted further 4 months bed rest by a doctor at the Mbarara Referral Hospital. Had the defendant carried out any investigations or given the plaintiff a hearing, they would have known all this.<br /> <br /> When the plaintiff appealed against his dismissal, the defendant, by a letter dated 12/1/2007 revised the dismissal whose effective date had been stated to be 27/4/2006 to 23/5/2006. Counsel concluded that the plaintiff was dismissed when he was on sick leave, and had the defendant’s investigated the circumstances of his absence; they would have avoided the embarrassing dismissal.<br /> <br /> Counsel submitted that the law on dismissal was well settled that the master or employer had the right to dismiss his employee without assigning any reason therefore. Alternatively, he could assign a reason that shows that the appellant contravened the terms of his employment, but the moment he assigned the reason which does not appear to be part of the employee’s terms of employment, the dismissal was wrongfully.<br /> <br /> Counsel further relied on <strong><em>AM Jab</em></strong><strong><em>i Vs Mbale Municipal Council (1975) HCB 191 and C. Ushillani Vs Kampala Pharmaceuticals Ltd. SCCA No. 6/1998</em></strong> for the view that the reason given for the dismissal has to be justifiable under the law. The plaintiff could only in the instant case have been terminated according to contractual terms and conditions, by being given stipulated notice or by summary dismissal. The plaintiff was summarily dismissed verbally around April 2006, later formalized in December 2006. Summary dismissal, which is termination without notice or with less notice than the employee is entitled to by a statutory or contractual provision, should only be done where the employee’s conduct was so gross that it affects his line of employment. (See A.M Jabi’s case (Supra).<br /> <br /> Since the plaintiff explained his absence with evidence, on account of sickness resulting from an accident while on official duty, and this was not controverted by the defendant who never entered appearance in the suit, and since the effective date of termination fell within the period when he was on sick leave, the dismissal was unlawful. The defendant’s actions were in utter repudiation of the contract amounting to a breach thereof. The plaintiff was turned away from work and not given any remuneration or assigned any duties. Counsel relied on <strong><em>Hon. Francis Mukama Vs Uganda Wildlife Authority Civil Suit Bi. 290 if 2002 </em></strong>where court held that;<br /> &nbsp;</div> <div>“<strong><em>I accept the plaintiff’s evidence that before the termination he had not been investigated for any wrong doing. This was a contract for a fixed duration i.e. 4 years. It did not provide for termination by notice. He could therefore only be dismissed for a fundamental breach on his part. There was no such breach. The reason assigned for the termination by the defendant was not part of the plaintiff’s terms of employment. The dismissal was wrongful”.</em></strong></div> <div><br /> I have carefully considered the submissions of learned Counsel for the plaintiff, the evidence and law and authorities referred to. According to the appointment letter, the plaintiff was supposed to sign a contract of service. This never happened, as none was availed to him by the defendant.<br /> <br /> When complaints of unfair dismissal are raised, as is the case here, court’s resort to such conditions as the embodiment of the conditions and terms of such employment. The court shall, therefore, rely on the terms and conditions in the only document availed to the plaintiff, the appointment letter. Wrongful dismissal would in the context of such agreement relate to removing the employee from the employment for a reason which did not justify dismissal under the employment contract.<br /> <br /> In the instant case, the plaintiff has led evidence to prove that his dismissal was unfair. The dismissal letter (Exhibit P.III) written to him on 28/08/2006 but effective on 27/04/2006 indicated the reason for dismissal as being prolonged absenteeism as per the Human Resource Manual. It was stated that after involvement in an accident, his sick leave was to expire on 24/3/06 but he did not seek extension of absence nor did he communicate what happened to him.<br /> <br /> The plaintiff’s testimony is that the sick leave was extended further by his doctors as per Exhibit P.18, and P.19(b) and (c), and that the date his dismissal became effective he was on sick leave. The plaintiff’s un controverted evidence was that he was always in touch with his Human Resource Officer in Kampala as per agreement with his supervisors in Queen Elizabeth National Park. On 8/4/2006, prior to the date his dismissal was to take effect, the plaintiff wrote to the Human Resource Manager of the defendant, Kampala office, copied to the Chief Park Warden, Queen Elizabeth, giving a statement of his health, attaching copies of doctor’s letters from various hospitals. Further, the defendant was regularly informed of the employee’s state of health by the defendant’s medical providers. The defendant neither carried out any investigations before the dismissal, nor gave the plaintiff any hearing. If they had they would have discovered the truth of the matter. In fact when the plaintiff appealed, the defendant realized that they had made some mistakes and sought to correct it by extending the effective date of the termination. This did not help matters, or make the unlawful dismissal lawful.<br /> <br /> It is trite that the employer may terminate the contract with his servant any time and for any reason, even for none. See <strong><em>Okori Vs UEB [1981] HCB 52. </em></strong>However the moment the employer assigned a reason and the reason does not abide by the plaintiff’s terms of employment, the dismissal is wrongful. See <strong><em>Ahmed Ibrahim Bholm Vs Car and General Ltd. SCCA No. 12/2002. </em></strong><br /> <br /> The defendant sought to justify the plaintiff’s dismissal by seeking to fit it within the Human Resource Manual. However, according to the evidence on record which was never controverted, no investigation took place prior to dismissal. Neither was the plaintiff given a hearing. This went against the principles of natural justice, and violated the plaintiff’s constitutional right to a fair hearing and the right to a just and fair treatment in administrative decisions guaranteed by Article 28 and 42 of the Constitution of the Republic of Uganda. According to Article 44(c) the right to a fair hearing cannot be derogated from. The dismissal which flouted the above provisions is retiring a nullity.<br /> <br /> Further, the contract was for a fixed term of 4 years duration. It did not provide for termination by notice. The plaintiff could, therefore, only be dismissed for a fundamental breach on his part (See Bholm’s case (Supra). The reason assigned by the defendant for the dismissal was not justified given the circumstances surrounding the plaintiff’s absence. The dismissal was therefore wrongful. The first issue is, therefore, answered in the negative.<br /> <br /> The second issue is what remedies are available to the plaintiff.<br /> Since the dismissal was unlawful, the plaintiff is entitled to certain reliefs.<br /> <br /> His first claim for relief is in respect of special damages for the unexpired term of the contract of employment. In <strong><em>Gulaballi Ushillani Vs Kampa</em></strong><strong><em>l</em></strong><strong><em>a Pharmaceuticals (Supra), </em></strong>the appellant’s employment was for a fixed term.<br /> <br /> In this respect, the statement of the law on damages in this respect was declared by the Supreme Court in the lead judgement of Mulenga JSC as follows:<br /> &nbsp;</div> <div><strong><em>“In deciding that issue (of damages), the Court of Appeal appreciated that the employment</em></strong> <strong><em>in the instant case, was for a fixed period. The court made a distinction between a contract which makes no provision for termination prior to expiry of the fixed period, and one in which there is a provision enabling either party to terminate the employment. The learned Justices stated the law to be that in the event of wrongful termination by the employer, the employee in the former contract would be entitled to recover as damages, the equivalent of remuneration for the balance of the contract period, whereas in the latter case the wronged employee would be entitled to recover as damages, the equivalent of remuneration for the period stipulated in the contract for notice. I respectfully agree that this is the correct statement of the law. I would add that it is premised on the principle of restitution in integrum. Damages are intended to restore the wronged party into the position he would have been in if there had been no breach of contract. Thus, in the case of employment for a fixed period which is not terminable, if there is no wrongful termination, the employee would serve the full period and receive the full remuneration for it. And in the case of the contract terminable on notice, if the termination provision is complied with, the employee would serve the stipulated notice period and receive remuneration for that period, or would be paid in lieu of the notice”.</em></strong></div> <div><br /> Basing on the above authority, the plaintiff’s claim for the unexpired term of the contract should succeed.<br /> <br /> According to the plaintiff, he was earning Ug. Shs. 260,500= per month and was last paid in April 2006. The contract of employment according to Exhibit P.II was for 4 years effective 01/08/2004, and the starting salary was Ug. Shs. 252,600= per month. Special damages must be specifically proved. The last pay slip of the plaintiff was not produced to indicate his last pay. Court can only therefore rely on the sum in the appointment letter. The payment for the unexpired period would therefore be allowed at Ug. Shs. 252,600 x 28 months = Shs. 7,072,800=.<br /> <br /> The next head of claim is gratuity which is claimed at Ug. Shs. 1,763,370= and Housing and other allowances of Ug. Shs. 1,849,650= for the 28 months constituting his unexpired contract. No evidence was produced to prove that the plaintiff was entitled to these allowances, or how much he was entitled to per month. These claims have therefore not been proved, and are disallowed.<br /> <br /> A claim for unpaid leave pay was made for the last year the plaintiff worked, and for the balance of the unexpired 2 years on the contract. He testified that he earned Shs. 30,000= over and about his salary as leave pay. The Shs. 30,000= has not been specifically proved. I shall therefore accept a claim for payment of the monthly salary of Shs. 252,600= x 3 years = Shs. 757,800= as the payment for the unpaid leave benefits.<br /> <br /> Claims for special damages relating for medical treatment and dieting expenses were also made. However, no receipts were presented and hence the claims were not proved. Even for the dieting expenses, no details of these were availed to court, albeit without receipts.<br /> <br /> The plaintiff further made a claim under the Workman’s Compensation Act Cap. 255, which claim arose out of the same transaction, and a joinder of causes with that of unlawful/wrongful dismissal was made under Order 1 of the Civil Procedure Rules.<br /> <br /> Exhibit P7 which is the Assessment of Compensation under the Workman’s Compensation Act, by the District Labour Officer, shows that the plaintiff suffered temporary incapacity as a result of the accident which was put at 80%. Permanent incapacity was put at 31%. The compensation was assessed at Ug. Shs. 6,073,830=. The plaintiff admitted to having received Shs. 468,900= from Citibank, under this claim. This is under Exhibit P16. The outstanding balance claimed is Ug. Shs. 5,604,930= which is the difference between the above two figures. Exhibit P7 bears signatures and stamps of the employer, the Executive Director, Mbarara Referral Hospital, and the District Labour Officer.<br /> <br /> Further under Exhibit P11, which is the letter from the defendant to the plaintiff’s advocate dated 5/6/2007, the defendant admitted that the plaintiff was entitled to the claim under the Workman’s Compensation. Ug. Shs. 5,604,930= is, therefore, allowed under this claim.<br /> <br /> The plaintiff further claimed for general damages and exemplary/punitive damages. Under this item a claim of Ug. Shs. 15,000,000= was made for general damages. And because of the embarrassing way in which the plaintiff was dismissed a claim of Shs. 20,000,000= was made in respect of exemplary/punitive damages.<br /> <br /> In respect of the general damages claim, in <strong><em>Bholm’s case (Supra)</em></strong> the Supreme Court opined that where special damages representing loss of salary for the balance of the contract of employment were awarded, an award of general damages for wrongful dismissal would not be appropriate. Basing on the above, I will disallow the claim for general damages.<br /> <br /> In claiming for the exemplary/punitive damages, the plaintiff’s case was that the defendant being a public body was supposed to be an exemplar as pertaining enforcing and respecting employment rights, but instead they failed to observe the plaintiff’s right to a fair hearing under Article 28 of the Constitution of the Republic of Uganda. The plaintiff was dismissed in the most disparaging and inhumane way when he was on sick leave, and the manner of dismissal was embarrassing to both parties and to the public, the defendant being a public body.<br /> <br /> The dismissal letter (Exhibit P.3) stated that the plaintiff is “dismissed with disgrace on charges of prolonged absenteeism”. Hence the claim of Ug. Shs. 20 million for punitive/exemplary damages. I agree that circumstances under which the plaintiff was dismissed as clearly brought out in the evidence were inhumane having decided on his dismissal at a tune when he was still nursing injuries sustained while on official duty. This would justify an award for damages that are punitive in nature. Considering the high handed manner in which the defendant handled the dismissal of the plaintiff, exemplary/punitive damages of Shs. 5,000,000= considered appropriate and are awarded under this item.<br /> <br /> Lastly, the plaintiff prayed for a Certificate of good service to be issued for proper discharge from the defendant’s employment in light of the manner in which he was dismissed. The court’s view is that having declared that the dismissal of the plaintiff by the defendant was wrongful the court has thereby cleared the plaintiff of wrongdoing. There was no evidence to show under what circumstances a Certificate of good service is awardable under the Human Resource Manual or other regulations of the defendant. The court is therefore not able to determine whether or not one should be awarded to the plaintiff by the respondent.<br /> <br /> On the awards I have made above, I would add interest of 20% per annum on the special damages from the date of breach, and 15% on the punitive damages from the date of judgment, till payment in full.<br /> <br /> In conclusion, judgment is entered for the plaintiff against the defendant and the following awards are made:<br /> &nbsp;</div> <div>a)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Special damages for the unexpired period of the contract UShs. 7,072,800=</div> <div>b)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Unpaid leave allowance Ug. Shs. 757,800=</div> <div>c)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Workman’s compensation Ug. Shs. 5,604,930=<br /> d)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Exemplary/Punitive damages Ug. Shs. 5,000,000=<br /> e)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Interest of 20% per annum on (a), (b), and (c) above from the date of breach, and 15% per annum from the date of filing, till payment in full.<br /> f)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Costs of the suit.<br /> &nbsp;</div> <div><br /> <br /> <strong>Elizabeth Musoke</strong></div> <div><strong>JUDGE</strong><br /> <strong>27</strong><strong>/07/2009</strong></div> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-c2e471c32285c52562b44a3803d530dd"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/high-court/2009/139/high-court-2009-139.rtf" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Mon, 27 Jul 2015 13:58:12 +0000 Anonymous 17495 at https://old.ulii.org Omunyokol v Attorney General (CIVIL APPEAL NO. 06 OF 2012 ) (2012) UGSC 4 (8 April 2015); https://old.ulii.org/ug/judgment/supreme-court/2015/4 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/labour-and-employment-law" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Labour and Employment Law</a></li><li class="field-item odd"><a href="/tags/termination-and-dismissal" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Termination and dismissal</a></li><li class="field-item even"><a href="/tags/unlawful-or-unfair-dismissal" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Unlawful Or Unfair Dismissal</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><div> <p>THE REPUBLIC OF UGANDA</p> <p><a name="bookmark0">IN THE SUPREME COURT OF UGANDA</a></p> <p>&nbsp;AT KAMPALA</p> <p>&nbsp;(CORAM: KISAAKYE, ARACH-AMOKO, JJSC, ODOKI, OKELLO AND KITUMBA AG. JJ.SC)</p> <p>&nbsp;CIVIL APPEAL NO 06 OF 2012</p> <p>BETWEEN</p> <p>&nbsp;OMUNYOKOL AKOL JOHNSON :::::::::::::::::::::::::::::: APPELLANT</p> <p>&nbsp;AND</p> <p>&nbsp;ATTORNEY GENERAL :::::::::::::::::::::::::::::::::::::::::: RESPONDENT</p> <p>[ Appeal from the decision of the Court of Appeal at Kampala (Byamugisha, Kavuma and Nshimye JJA) dated 29<sup>th</sup> May 2012 in Civil Appeal No 71 of 2010)</p> <p>JUDGMENT OF DR ODOKI AG. JSC Introduction:</p> <p>The appellant, Omunyoko Akol Johnson, filed an action in the High Court against the Respondent, the Attorney General, seeking a declaration that his dismissal from his job in the Public Service was illegal, ultra vires, void and of no effect. He also sought an order nullifying and setting aside the dismissal, and directing his reinstatement in his office as a Foreign Service Officer, with all his entitlements, benefits and privileges. Furthermore, he sought special, general, aggravated and exemplary damages, interest and costs of the suit.</p> <p>The respondent denied the appellant’s claims.</p> <p>The trial judge entered judgment in favour of the appellant, holding that the dismissal of the appellant was unlawful. However the trial judge, declined to order the appellant’s reinstatement and awarded him general and aggravated damages of Shs180,000,000/=, among other remedies.</p> <p>The appellant appealed to the Court of Appeal which dismissed his appeal with costs. The appellant has now appealed to this Court against the decision of the Court of Appeal.</p> <p><a name="bookmark1">Background to the Appeal:</a></p> <p>The appellant was recruited into the Public Service of Uganda as a Foreign Service Officer Grade 6 on 20<sup>th</sup> September 1988 and posted to the Ministry of Foreign Affairs. He was on 9<sup>th</sup> July 1993 posted to Beijing in the Uganda Embassy in the People’s Republic of China.</p> <p>In March 1997 the appellant was given notice to return to Uganda. He did not do so immediately because the Ministry of Foreign Affairs did not have funds to cover the cost of shipping his personal effects to Uganda. He remained in Beijing until 21<sup>st</sup> October 1997 when he was arrested and detained for four days by the security agencies of the People’s Republic of China. On 24<sup>th</sup> October 1997 he was repatriated to Uganda and sent on leave. On 4<sup>th</sup> March 1998, he was interdicted by the Permanent Secretary of the Ministry of Foreign Affairs and on 6<sup>th</sup> June 1998, the appellant was dismissed from the Public Service by the Public Service Commission without following the proper procedure.</p> <p>As already indicated above, the appellant partially succeeded in the High Court and the Court of Appeal dismissed the appeal.</p> <p>The Grounds of Appeal:</p> <p>The appellant has filed fourteen grounds of appeal, some of which are repetitive. In my view, it is convenient to combine some of the grounds for purposes of considering them in this judgment. The first batch of the ground is ground 1 which complains that the Court of Appeal erred in not declaring that the dismissal of the appellant was ultra vires, null and void. The second batch of grounds criticises the Court of Appeal for upholding the trial judge’s decision not to reinstate the appellant. This complaint is addressed in Grounds 2, 3, 4 and 5. The third batch of grounds complain about the award of special and general damages by the trial judge. These are covered under grounds 6, 7, 8, 9, 10, 11 and 12. The fourth batch of ground relate to the failure to award punitive or exemplary damages which is covered in ground 13. The fifth batch of ground is ground 14 which complains about the award of interest on general damages.</p> <p>I shall now address the various batches of grounds of appeal.</p> <p>Representation and Submissions:</p> <p>The appellant was represented by Ms Patrick Furah while Ms Robinah Rwakojjo, Commissioner for Civil Litigation in the Ministry of Justice and Mr Kosiya Kasibayo, represented the respondent.</p> <p>Both parties filed written submissions. However, the appellant in particular did not follow the requirements of this Court’s Practice Direction on submission of Written Arguments (No 2 of 2005) as he exceeded the permitted number of pages by four times. He also filed too many authorities on each point totalling about 100 decisions and books covering 2000 pages. The appellant used derogatory and insulting language</p> </div> <p>&nbsp;</p> <div> <p>against both the two lower courts and counsel for the respondent, for which his counsel apologized.</p> <p>This Court must warn parties and other advocates against making unfounded allegations against Judges and other Counsel which are likely to undermine the due administration of justice. This practice is unacceptable and must be stopped forthwith.</p> <p><a name="bookmark2">Ground 1: Unlawful Dismissal of the Appellant</a></p> <p>In the first ground of appeal, the appellant complains that the learned Justices of the Court of Appeal erred in law and in fact when they failed to hold that the dismissal of the appellant was ultra vires, null and void and to declare it as such.</p> <p>In a lengthy submission, the appellant repeats most of the arguments he presented before the trial Court and the Court of Appeal with regard to the manner in which he was dismissed, which infringed the principle of natural justice, and rendered his dismissal null, void and invalid. He submitted that the Court of Appeal should have held that his employment was still subsisting, warranting reinstatement in his office. It was his contention that since the Court of Appeal failed to address itself to this issue, this Court should do so.</p> <p>The appellant cited many authorities to support his submissions which include Joy Tumushabe &amp; Another vs M/S Anglo - African Limited &amp; Anor SCCA No 7 of 1991, Julius Rwabinumi vs Hope Bahimbisomwe SCCA NO 10 of 2009, F J K Zaabwe vs Orient Bank &amp; Others SCCA No 04 of 2006, Administrative Law by HWR Wade 5<sup>th</sup> Edn. Pages 31, 41 etc., Ridge vs Baldwin (1964) AC 63, Kamurasi Charles vs Accord</p> <p>Properties &amp; Anor. SCCA No 3 of 1996, R.V University of Cambridge (1923) 1 Str 557, Muhwezi Jones vs Mbarara District Administration. HC Misc. Application No 13 of 1995 Federal Civil Service Commission &amp; Others vs Laove (1990) LRC 482, General Medical Council vs Sparkman (1943) AC 644, Matovu &amp; Others vs SSeviri &amp; Anor CACA No 7 of 1979, Dr Julius Enon vs Makerere University HCC A No 381 of 2005, Cooper vs Watson &amp; Others (1937) 2 KB 309, Law!or vs Union of Post Office Workers (1965) Ch. 712 Judicial Review of Administrative Action by S A De Smith 2<sup>nd</sup> Edn.534, among others.</p> <p>In reply, the respondent submitted that this ground of appeal had no merit because the trial judge diligently addressed this issue and came to the conclusion that the dismissal of the appellant was contrary to statutory law and the rules of natural justice; and was therefore void ab initio. The respondent contended that what the appellant is dissatisfied with is the failure to order his reinstatement.</p> <p>In his judgment, the trial judge stated,</p> <p>“On the basis of the evidence adduced, court finds that Regulation 36 of the Public Service Regulations were not complied with, almost in its entity, before the decision to dismiss the plaintiff was taken. The plaintiff’s dismissal was contrary to statutory law and the rules of natural justice in that the plaintiff was not given a fair hearing. A decision taken in contravention of the rules of natural justice is void abi initio: Matovu &amp; 2 others vs Sseviri &amp; Anor. (1979) HCB 174. The finding on the first issue is that the dismissal of the plaintiff was unlawful.”</p> <p>In the Court of Appeal, the appellant complained in Ground 2 of appeal that “the learned trial judge erred in law and in fact in not declaring the appellants dismissal null, void ab initio, ultra vires and of no legal effect and in not granting an order nullifying and setting aside the said dismissal. ”</p> <p>The Court of Appeal upheld the holding of the trial judge that the appellant’s dismissal was unlawful and dismissed this ground of appeal. The complaint raised by the appellant that the Court did not make an order nullifying and setting aside the dismissal is academic, since once the Court held that the dismissal was unlawful, it became null and void, and automatically was set aside. That is why both courts considered the issue of reinstatement of the appellant and the award of damages. Therefore, I do not find any merit in this ground of appeal, which should fail.</p> <p>Grounds 2, 3, 4 and 5: Failure to Reinstate the Appellant:</p> <p>The grounds of appeal which complain about the failure of the Court of Appeal to order reinstatement of the appellant in his office are contained in grounds 2, 3, 4 and 5. They are stated as follows:</p> <p>“2. The learned Justices of the Court of Appeal erred in law when they failed to order the reinstatement of the appellant to his job plus accrued missed promotional opportunities.</p> <ol> <li>The learned Justices of the Court of Appeal erred in law in upholding that the appellant’s statutory public employment had terminated by wrongful dismissal.</li> <li>The learned Justices of the Court erred in law when they upheld that the appellant’s employment was governed by the Employment Act.</li> <li>The learned Justices of the Court of Appeal erred in law and in fact to uphold that the appellant was in a contract of employment ”</li> </ol> <p>In his submissions on ground two, the appellant contended that a declaration that the dismissal of an employee is void should be followed by an order to reinstate that employee. This he argued is because the status quo of the employee has been restored. His contention was that an order declaring the dismissal of an employee as void goes hand in hand with another order to reinstate the employee.</p> <p>The appellant relied on the case of Federal Civil Service Commission</p> <p>vs Laove (1990) L.R.C 451, where the Supreme Court of Nigeria made a declaration that the unlawful dismissal of the respondent was void and of no legal effect and that the respondent was still an employee of the appellant and should, therefore, be reinstated as such without prejudice to his entitlements, promotions which might have accrued to him during his period of dismissal. The appellant submitted that in the present case his statutory public employment was still subsisting though he was dismissed and should, therefore, be reinstated and paid arrears of salary and allowances.</p> <p>The appellant also referred to the book entitled Employment Law 3<sup>rd</sup> edn P.271, where it is stated that “reinstatement means and requires the employer to treat the employee in all respects as if he had not been dismissed, Thus his pay; pension; seniority rights etc, must be restored to him and he will benefit from any improvement in terms and conditions which came into operation whilst he was dismissed</p> <p>The appellant cited several other authorities to support his submission which included, Vines vs National Dock Labour Board (1956) 1 All. ER</p> <p>&nbsp;Dr Patrick Mwesictve Isinpoma vs Attorney General Misc App No 242 of 2006, Principles of Labour Law by Roger N Rideout 3<sup>rd</sup> Edn. 15,</p> <p>&nbsp;Opolot Michael Onone vs Attorney General HCT-CV-MA-0857/2008 (HC).</p> <p>With regard to the third ground of appeal, the appellant submitted that the Court of Appeal erred in not holding that since the appellant was a public servant whose employment was regulated by statute, he was subject to public law remedies as laid down in R vs East Berkshire Health Authority Ex parte Walsh (1984) 3 AII.ER 425.</p> <p>The appellant also relied on Chitty on Contracts 27<sup>th</sup> Ed, page 799-880 where it is stated that employees who are holders of a tenured office or whose employment takes place under the authority and regulation of a statute giving it a public nature and having this protection, remedies of a public law nature might be available to invalidate a dismissal not carried out in accordance with the principles of natural justice. The author goes on to state that a person employed under a contract of employment cannot invoke public law remedies even if his employment is of a public nature, though an officer or office holder who does not have a contract of employment may be able to do so.&nbsp;&nbsp;&nbsp;</p> <p>It was the submission of the appellant that in conformity with the facts of the present case, the appellant was under a statutory public employment governed by Article 173 of the Constitution which protects, public officers from being dismissed or reduced in rank without just cause or contrary to the procedure laid down in the Public Service Act and the Public Service Regulations.</p> <p>The appellant relied again on the Nigerian case of Federal Civil Service Commission vs Laove (supra) where the court stated that “officers on the pensionable cadre of our civil service whose terms and conditions of service are governed by the civil service rules made under the Constitution and therefore having a constitutional flavour, acquired a distinct status which places their employment over and above the common law relationship of master and servant and introduced on these relationships, the vires element of Administrative Law.”</p> <p>The appellant, therefore, maintained that he was entitled to administrative/public law remedies, and not damages for loss of employment as wrongly stated by the two lower courts. The appellant further argued that statutory public employment could only come to an end when terminated lawfully through the procedure provided by statute. Otherwise, the appellant contended, the statutory public employment continues to subsist and therefore his employment is still subsisting. He relied on the decision of the Court of Appeal in Kakumu Perez vs Attorney General CCCA No 113 of 2003 where it was held that the appellant who had been dismissed from the post of District Forest Officer was still in office and was, therefore, entitled to his salary and benefits until his employment was terminated lawfully.</p> <p>On ground four, the appellant complains that the learned Justices of the Court of Appeal erred when they held that the appellant’s employment was governed by the Employment Act. The appellant pointed out that he was appointed a Foreign Service Officer on 20<sup>th</sup> September 1988, and was dismissed on 8<sup>th</sup> June 1998. The Employment Act came into force on 24<sup>th</sup> May 2006, nine years after the appellant had been dismissed and the Act could not apply to him retrospectively. He relied on the case of Patel vs Benbros Motors Tanganyika Ltd. EACA No 5 of 1968, to support his argument</p> <p>The appellant also contended that the provisions of the Employment Act apply to contract employment not his statutory public employment which is governed by the Constitution, the Public Service Act and Public Service Regulations, among others.</p> <p>In reply to the submissions of the appellant, the respondent argued that reinstatement of the appellant in the Public Service was not automatic but at the discretion of the Court. The respondent contended that the trial judge exercised his discretion judiciously and rightly refused to grant the remedy since it was not practical for the reasons he gave. The respondent pointed out that the appellant had spent 13 years out of Public Service at the time of judgment and had now spent 17 years since he left Public Service. A lot had happened by way of promotions and placements in the Ministry of Foreign Affairs and this alone made reinstatement not the most appropriate remedy in the circumstances of the case.</p> <p>Regarding the argument by the appellant that the trial Court granted private law remedies rather than public law remedies, the respondent submitted that the common law principle that an employer should not be forced to retake an employee when the employer no longer wishes to continue engaging him which was stated by this Court in the cases of Bank of Uganda vs Betty Tinkamanyire Civil Appeal No 12 of 2007 and</p> <p>Barclays Bank of Uganda vs Godfrey Mubiru SCCA No 1 of 1998, applies to public servants.</p> <p>The respondent contended that this common law principle was incorporated in the laws of Uganda like the Employment Act, which the Court of Appeal relied on to confirm the decision of the trial judge. The respondent further submitted that where removal from office is not forbidden by statute, one could not competently claim reinstatement as of right as there is no law which expressly confers that right to him. It was reiterated that reinstatement is at the discretion of the Court which must be exercised judiciously and that this is exactly what the trial Court did and confirmed by the Court of Appeal. It was the contention of the respondent that reinstatement was not the appropriate remedy in this case, and that monetary compensation as awarded by the lower Courts was the most appropriate remedy in the circumstances of this case.</p> <p>The substantial issue raised in these grounds and submissions is whether the Court of Appeal erred in law in upholding the decision of the High Court Judge not to reinstate the appellant in his job as a Foreign Service Officer.</p> <p>In his judgment the trial judge gave two reasons why he found that reinstatement was not the most appropriate remedy in the circumstances of the case. For the first reason the judge stated,</p> <p>“The plaintiff prayed to be reinstated in employment. There is no evidence from the defendant that the plaintiff would be welcomed to resume his former job. Court has therefore come to the conclusion that the defendant as employer does not want to have back the plaintiff as employee. Thus, therefore, is one of the cases, where the Court has to apply the common law principle that an employer should not be forced to retake an employee, the employer no longer wishes to continue to engage: See Bank of Uganda vs Betty Tinkamanvire, Civil Appeal No 1 of 1998 (SC) and Barclays Bank of Uganda vs Godfrey Mubiru. Civil Appeal No 1 of 1998 (SC ) (unreported).”</p> <p>The second reason the learned High Court Judge gave was stated as follows:</p> <p>“Even as a matter of practicality, it is not appropriate, in this case, to order reinstatement It is almost 13 years ago since the plaintiff lost his employment. A lot of has happened by way of promotions and placements in the Ministry of Foreign affairs according to evidence availed by the plaintiff. This makes reinstatement of the plaintiff in his former employment to be not the best option. The Court declines to order reinstatement of the plaintiff. ”</p> <p>As indicated earlier in this judgment the Court of Appeal upheld the trial judges’ decision that the dismissal of the appellant was unlawful. The Court of Appeal held that the appellant’s employment was governed by the Constitution, the Public Service Act and Regulations made there under, the Pension Act and the Employment Act. It also held that the appellant was employed on permanent and pensionable terms and with good conduct, he could have left the Public Service on reaching the retirement age of 60 years. The Court was alive to the provisions of Article 173 of the Constitution which protects the tenure of the office of public servants by providing that no public servant shall be dismissed or reduced in rank without just cause.</p> <p>In her leading judgment with which the other members of Court agreed, Byamugisha (RIP) stated that the main question was whether the appellant should have been reinstated, she stated,</p> <p>“The main thrust of the appellant’s grievances against the findings of the trial judge, as I understand it, is that the trial judge ought to have ordered his reinstatement in his job. Reinstatement of an employee is governed by the provisions of Section 71 of the Employment Act Part of the section states,</p> <p>“(5) If the Court finds that the dismissal is unfair the Court may -</p> <ol> <li>order the employer to reinstate the employee or</li> <li>order the employer to pay compensation</li> </ol> <ol> <li>The Court shall require the employer to reinstate or re-employ the employee unless-</li> </ol> <ol> <li>the employee does not wish to be reinstated or re-employed,</li> <li>the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable,</li> <li>it is not reasonably practicable for the employer to reinstate or re­employ the employee or</li> <li>The dismissal is unfair because the Employer did not follow a proper procedure.”</li> </ol> <p>&nbsp;</p> <p>The learned Judge of Appeal then concluded,</p> <p>“The provisions of this Section give powers to a Court to order reinstatement of an employee in the circumstances set therein. The same section sets out circumstances under which an employee may not be reinstated in his job. One of such circumstance is where the employee has been wrongly dismissed. The appellant was wrongfully dismissed from his job. He could only be reinstated if there was evidence that the employer was ready and willing to take him back. The learned trial judge considered all the facts that were before him and arrived at the correct decision against the reinstatement. I have not been persuaded that he was wrong.”</p> <p>The Court of Appeal relied on the provisions of the Employment Act in upholding the decision of the trial court, not to order reinstatement of the appellant in his job. The appellant has submitted that the Court of Appeal erred in so doing because the said Act which came into force on 24<sup>th</sup> May 2006 was not in operation when the appellant was dismissed on 8<sup>th</sup> June 1998. It was his contention that the Act could not apply retrospectively to him.</p> <p>I entirely agree with the appellant’s submission that the Court of Appeal erred in applying the Employment act 2006 to this case, when the Act did not have a retrospective effect. The Employment Act Cap.219 was the equivalent law in existence at the time the appellant was dismissed but it was not referred to nor does it have similar provisions.</p> <p>Secondly, the appellant contends that the Employment Act applies only to contract employment and not statutory public employment which is governed by the Constitution, the Public Service Act and Public Service</p> <p>Regulations among others. The respondent submitted that the Employment Act 2006, embodies principles of common law regarding employment. That may be so, but it seems to me that the Employment Acts were intended to apply to employees on fixed contracts who earn wages. In my view the appellant is correct in maintaining that the Employment Act does not apply in this case.</p> <p>Ultimately the question which remains to be answered is whether the Court of Appeal erred in upholding the decision of the trial judge not to be reinstate the appellant in his employment. The appellant argues that the lower Courts erred in applying private law remedies to a statutory public employment governed by different regime of laws and rules.</p> <p>The appellant relies on Article 173 of the Constitution which provides;</p> <p>“A public officer shall not be -</p> <ol> <li>Victimised or discriminated against for having performed his or her duties faithfully in accordance with this Constitution or</li> <li>Dismissed or removed from office or reduced in rank or otherwise punished without just cause.”</li> </ol> <p>The appellant cited several authorities where public servants have been reinstated in their posts after finding that their dismissals were unfair or unlawful.</p> <p>I agree with the appellant that his employment was subject to the Constitution, statutes and regulations thereunder. He could not be dismissed without just cause. In this case he was dismissed unlawfully</p> </div> <p>&nbsp;</p> <div> <p>and both courts below held so. Under normal circumstances, the appellant would be entitled to reinstatement as the first option. I agree with the two Courts below that reinstatement is not automatic and depends on the particular circumstances of each case. The Court has discretion to order reinstatement after taking into account all the circumstances of the case.</p> <p>In the present case, the trial judge gave reasons why he found that reinstatement was not the most appropriate remedy. The Court of appeal agreed with those reasons.</p> <p>This Court is always too slow to depart from two concurrent findings of the Courts below without any sound reasons. A most compelling reason why reinstatement was not practicable was the long passage of time between the dismissal and the conclusion of the case in the High Court.</p> <p>The appellant was dismissed on 8<sup>th</sup> June 1998 and the High Court delivered its judgment on 9<sup>th</sup> March 2010, a lapse of 13 years. During this period many things had changed in terms of posting and promotions, and it would have been difficult to find an appropriate placing for the appellant. As the appellant himself testified, some of his colleagues were now occupying higher posts. What then would become of him? Further, the Court of Appeal delivered its decision on 29<sup>th</sup> March 2012 and this appeal was heard on 10<sup>th</sup> September 2014. The appellant who was born in 1961 is now 53 years of age and would have to retire in seven years’ time, on reaching the retirement age of 60 years.</p> <p>In conclusion, I am unable to fault the Court of Appeal for upholding the order of the trial Judge not to reinstate the appellant in his employment, I find that the two Courts below were justified in holding that the most appropriate remedy for the appellant was the award of damages to compensate him for the loss of his employment. Accordingly, I find no merit in these grounds of appeal which should fail.</p> <p><a name="bookmark3">Grounds 8 and 9: Failure to re-evaluate evidence relating to torture, arrest and trespass to property:</a></p> <p>In ground 8, the appellant complains that the learned Justices of Appeal erred in law and in fact when they failed to re-evaluate evidence as regards his arrest, torture and confinement. In ground 9, the appellant criticizes the Court of Appeal for failing to re-evaluate the evidence regarding trespass to his property.</p> <p>In his submissions, the appellant recounts how he was arrested at his residence by the Chinese Police, hand cuffed, beaten in the presence of the Ugandan Ambassador to China, Major General Okecho and officials from the Ugandan Embassy in China and thrown behind a police pick-up truck and transported to Guomen Hotel while being stepped on by the police in their boots like a chicken thief. The appellant stated that he informed the Permanent Secretary of the Ministry of Foreign Affairs of his arrest through a loose minute. He claimed that he was stripped off of his diplomatic immunity by the respondent following his arrest. He argued that the Chinese Police could not have arrested him had his diplomatic immunity not been lifted. According to the appellant, this shows that the respondent was part of the plan to arrest him and therefore, the respondent is vicariously liable for the actions of the Chinese Police. He further contends that if it was purely a Chinese affair, then it would have been the responsibility of the Chinese Government to convey the appellant from China to Entebbe using their own resources by buying an air ticket, and not the Ugandan Government. Furthermore, the appellant submitted that the Ugandan Ambassador acted under the orders of the Permanent Secretary of the Ministry of Foreign Affairs, thus making the Government of Uganda vicariously liable for the actions of the Chinese Police. Finally, he argued that the respondent had a duty to prove that the detention of the appellant was justifiable, which it failed to do.</p> <p>On the failure to re-evaluate evidence regarding trespass to his property, the appellant submitted that no person should be subjected to unlawful search of his property under Article 27(1)(a) of the Constitution. He contended that the Ugandan Ambassador to China unlawfully searched his suitcase and his money, degree certificate, passport, and air ticket taken away which amounted to trespass. He prayed for an award of Shs.150 million as general damages.</p> <p>The respondent submitted that the Court of Appeal was alive to the principles governing the re-evaluation of evidence by the first appellate Court, and contended that it is not the length of the analysis that matters but its adequacy.</p> <p>The respondent maintained that the Court of Appeal had carefully re­evaluated evidence of alleged arrest, assault, and torture and trespass to property and came to the conclusion that the respondent was not vicariously liable for whatever violations that were allegedly meted on the appellant while in China.</p> <p>The respondent referred to the finding by the trial judge where he stated,</p> <p>“There is no direct witness evidence to contradict the evidence of the plaintiff as to his arrest and assault. That notwithstanding, it is the duty of this Court to analyse all the evidence adduced on the issue and decide whether or not the said evidence is worthy of belief or not ”</p> <p>The respondent further submitted that before coming to the conclusion that the appellant had failed to establish on balance of probabilities that the defendant was vicariously liable for the alleged assault, and confinement, the trial judge considered the following matters:</p> <ul> <li>The appellant did not mention these serious allegations of his being arrested and tortured at the earliest opportunity and this made his evidence suspect.</li> <li>The appellant did not report to Police about the said allegations as soon as he arrived in Uganda.</li> <li>The appellant submitted to Court a medical chit from MAC Clinic, of Medical Associates Consultants of Bombo Road, Wandegeya, Kampala, to prove his injuries but the information he gave to the doctor was that he had been assaulted by “unknown men,” contrary to his evidence on record where he stated who had assaulted him.</li> <li>The appellant did not claim that from China to Uganda, he was under arrest or surveillance of any security personnel.</li> <li>The appellant’s witness, one Major David Stephen, who was his long standing fried did not claim in his evidence that he came to know from the appellant that the appellant had been arrested, confined and handcuffed on orders of the Uganda Embassy staff or any other person.</li> </ul> <p>The respondent submitted that the decision of the Court of Appeal should be upheld on these grounds.</p> <p>It is well settled that it is the duty of a first appellate Court to reappraise the evidence and come to its own conclusions as to whether the findings of the trial Court were supported by evidence adduced at the trial. This Court restated this principle in the case of Kifamunte vs Uganda (1999)</p> <ol> <li>E.A. 127, at page 131 as follows:</li> </ol> <p>“We agree that on first appeal from a conviction by a judge the appellant is entitled to have the appellate Court’s own consideration and views of the evidence as a whole and its own decision thereon. The first appellate Court has a duty to rehear the case and reconsider the materials before the trial judge. The appellate Court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it When the question arises which witness is to be believed rather than another and that question turns on manner of demeanour, appellate Court must be guided by the impressions made by the judge who saw the witness, but there may be other circumstances quite apart from the manner and demeanour which may show whether a statement is credible or not and which may warrant a Court to differ from the judge even on a question of fact turning on the credibility of a witness whom the appellate Court has not seen. See Pandva Vs. R (1957) E.A. 336 at 338, Okeno vs R (1972) E.A. 32, Bitwire vs Uganda, Supreme Court Crim. App. No.</p> <p>23 of 1985 at p. 5. ”</p> <p>Regarding the duty of this Court as the second appellate Court, the Court went on to observe as follows:</p> <p>“It does not seem to us, except in the clearest of cases, that we are required to re-evaluate the evidence like the first appellate Court save in Constitutional cases. On a second appeal, it is sufficient to decide whether the first appellate Court on approaching its task, applied or failed to apply such principles. See Pandva vs R (supra) Kairu vs Uganda (1978) HCB 123."</p> <p>In his memorandum of appeal to the Court of Appeal, grounds 7 and 8 formed the appellant’s complaints relating to the evaluation of evidence regarding his arrest, confinement and assault, and trespass to property. Both parties submitted on these two grounds.</p> <p>However, it appears that the Court of Appeal did not consider these grounds of appeal at all. In my view, this was misdirection in law. An appellate Court ought to consider all the grounds of appeal and pronounce on them in one way or another. If, in view of the holding on other grounds it is not necessary to consider certain grounds, the Court should say so giving reasons.</p> <p>In the present case, the Court of Appeal did not explain why it did not consider the two grounds of appeal. It may well be that it thought that by addressing the issue of damages, it was sufficient to say nothing about them. I think this was error because the Court of Appeal as a first appellate Court had a duty to re-evaluate the evidence concerning the two grounds and come to its own conclusions.</p> <p>The Court of Appeal having failed in its duty as a first appellate Court, it seems that this Court must review the evidence accepted by the trial judge to ascertain whether his findings and conclusions can be supported. This Court has to bear in mind that it cannot assume the duty of the first appellate Court and re-evaluate the case wholly, and must also bear in mind the fact that it has not had the opportunity to see or hear the witnesses like the trial judge and form its views on the demeanour and credibility of the witnesses.</p> <p>The trial judge gave a detailed analysis and consideration of the evidence adduced by the appellant and decided to disbelieve the appellant for reasons he gave. Some of the matters the trial judge took into account were outlined by the respondent in his submissions. The trial judge observed,</p> <p>“This Court also finds it rather difficult to believe that a Police Force of a sovereign State of the Republic of China could have been ordered by the Ambassador of Uganda to carryout unlawful acts of arrest, confinement and assault in public places such as the compound of the residence of diplomats in China, in the motor vehicle pick-up in which the plaintiff alleges he was transported while handcuffed and sat upon by the Chinese Police and then to Guo-men Hotel and finally to the airport where he boarded Thai Airways without any restraint of this police by some other authorities.”</p> <p>The learned trial judge then concluded that the appellant had failed to establish that the respondent was vicariously liable for the actions of the Chinese Police. The trial judge concluded:</p> <p>“For the reasons given above, without in any way derogating from the fact that the plaintiff was entitled to be heard in his defence, this Court holds, on the second issue that having analysed the evidence before it, that the plaintiff has not established on a balance of probabilities, that the defendant is vicariously liable for the alleged assault, arrest and confinement of the plaintiff in China. Court finds that the plaintiff has not established to the Court’s satisfaction on a balance of probabilities that such assault, arrest and confinement happened to the plaintiff in the manner the plaintiff alleges it happened. ”</p> <p>In my view, the trial judge was justified to come to the above conclusion on the evidence which was before him.</p> <p>Regarding the claim that the appellant’s right to property was interfered with, the trial judge stated that the appellant did not report this matter at the earliest opportunity when replying to the disciplinary charges said against him. Nor did he protest or inform any authority in China or Uganda. The trial judge then held,</p> <p>‘ Further there is no evidence from the plaintiff that there was any unlawful conversion of the money or any documents of the plaintiff by any one of the Embassy staff to the plaintiff. This issue is not therefore proved on a balance of probabilities.”</p> <p>I am unable to fault the trial judge in his findings and conclusions which in my view were sufficiently supported by the evidence on record. Accordingly, grounds 8 and 9 should fail.</p> <p>Grounds complaining about award of special, general and aggravated damages:</p> <p>The appellant has listed several grounds of appeal in which he criticises the Court of Appeal for upholding the awards of damages made by the trial judge.</p> <p>The four grounds are stated as follows:</p> <p>“6. The learned Justices of the Court of Appeal erred in law when they upheld an award of a private law remedies of compensatory damages of Shs.180,000,000/= for loss of employment.</p> <p>7. The learned Justices of the Court of Appeal erred in law in upholding the speculative award of Shs.180,000,000/= as earnings of the appellant up to retirement time in the absence of pleadings to that effect.</p> <ol> <li>The learned Justices of the Court of Appeal erred in law and fact in upholding wrong computation of special damages which excluded salary increments, leave salaries, Foreign Service earnings and other financial entitlements leading to an inordinate low award.</li> <li>The learned Justices of the Court of Appeal erred in law and in fact in not awarding general and aggravated damages. ”</li> </ol> <p>Some of the grounds of appeal are repetitive while others are misconceived. For instance, grounds 6, 7 and 11 are repetitive in that they complain about the failure to award special damages while ground 12 complains that no award of general and aggravated damages was made whereas the trial judge awarded a sum of Shs. 180,000,000/= to cover them. Be that as it may, since the grounds are related, I shall consider them together.</p> <p>On ground 6, the appellant submitted that the trial judge erred in awarding the appellant compensatory damages based on an erroneous view that his employment had come to an end whereas it was still subsisting. He contended that the appropriate remedy was to award him special damages consisting of his salary arrears from the date of dismissal till judgment. The appellant also made an interesting argument that the trial judge made an error when he turned the Court into an appellate Court and substituted the decision of the Public Service Commission with his own. It was the contention of the appellant that the trial judge should have restricted his role to nullifying the decision of the Public Service Commission since it was arrived at in disregard to the laid down procedures and remitted the matter back to the Public Service Commission to determine the matter according to law. However, I note that this was not one of the reliefs requested by the appellant in his plaint. A Court cannot grant relief not sought in the plaint.</p> <p>Regarding ground 7, the appellant submitted that the award of Shs. 180,000,000/= as earnings of the appellant for 20 years of 26 years of the remaining years of his service was erroneous because it was based on a private law remedy, and was also speculative. He strangely argued that the award was uncertain because the appellant could have died through natural causes before reaching retirement age or resigned or even dismissed lawfully.</p> <p>The appellant further argued that the trial judge used obsolete salary scale to compute his earnings until when he would have reached retirement age. The appellant refers to the Supplementary Record of Appeal which indicates that his salary has been increased from Shs.740,940/= to Shs.1,042,202/= per month.</p> <p>The appellant contends that allowances due to the appellant were overlooked like Foreign Service earnings, salary in lieu of leave, disturbance allowance and other financial entitlements like the cost of damaged clothes, and medical expenses.</p> <p>The appellant referred to the decision of this Court in Bank of Uganda vs Betty Tinkamanvire SCCA No. 12/2007 where it was held that an employee is entitled to full compensation only in those cases where the period of service is fixed. It was the appellant’s contention that the authority was inapplicable to his employment since it was not on a fixed contract. Appellant also relied on the decision of the Court of Appeal in Ivamulemve David vs Attorney General CACA No. 104/2010 where it was held that the appellant could be awarded salary increment for the time he was unlawfully dismissed till judgment.</p> <p>The appellant maintained that the trial judge should have computed his earnings for the entire period of 26 years of the remaining period of service, and not 20 years. He submitted that he should be paid his salary arrears and allowances according to the current rates.</p> <p>On ground 11, the appellant submitted correctly in my view that special damages must be specifically pleaded and proved in order for them to be granted. He pointed out that he specifically pleaded for special damages</p> </div> <p>&nbsp;</p> <div> <p>in form of unpaid salaries, unpaid salary in lieu of leave, loss of Foreign Service earnings and other unpaid allowances. He maintained that he produced documents showing the various salary structures of Public Service from 1997 - 2013. However, he submitted that the trial judge and the learned Justices of Appeal ignored them and awarded an inordinate low award of special damages of Shs. 180,000,000/= for loss of employment.</p> <p>The appellant argued that since the respondent did not dispute the figures presented by the appellant concerning special damages, the figures should be considered as accepted. He relied on the decision of this Court in Kabu Auctioneers &amp; Court Bailiffs, Mulgbhai &amp; Co. vs. F K Motors Ltd. SCCA No. 19/2009 and Attorney General vs. A. K. PM Lutava SCCA No. 16 of 2007 to support his submission.</p> <p>The appellant further submitted that he should have been paid accumulated salary in lieu of leave. He relied on the case of Uganda Commercial Bank vs Yerusa Nabudere &amp; Anor SSCA No. 5/2003 where this Court affirmed payment of accumulated salary in lieu of leave to the estate of the late Nabudere.</p> <p>The appellant criticised the trial Court for computing his earnings from the date of interdiction beyond the date of judgment because that was not pleaded.</p> <p>The appellant prayed that he be paid special damages totalling Shs.220,129,471/= and US$274,300.5 to cover salary arrears with increments, allowances with increments, salary in lieu of leave with increments, loss of Foreign Service earnings from March 1998 up to 30</p> <p>June 2014. He provided a table of salary arrears and allowances with increments from 2008/2009 to 2013/2014.</p> <p>In reply, the respondent submitted that the Court of Appeal properly identified the grievance of the appellant on the issue of damages which was that the trial judge ought to have awarded a separate sum for each claim of damages. The respondent supported the view of the Court of Appeal that an award of damages is an exercise of discretionary power of the trial Court and an appellate Court is reluctant to interfere with such an award because it is considered imprudent to substitute the trial Court’s opinion with its own. It was the submission of the respondent that the award of omnibus figure of Shs. 180,000,000/= did not cause any injustice to the appellant and therefore this Court should not interfere with it.</p> <p>In her lead judgment, with which the other Justices of Appeal agreed, Byamugisha JA (RIP) stated that the complaint raised by the appellant was that the trial judge ought to have awarded separate sums for each claim of damages. The learned Justice observed that damages are compensatory and the injured party must be awarded such sum of money as will put him in the same position as if he had not sustained the wrong complained of. She underscored the principle that an award of damages is in the discretion of the trial Court and an appellate Court will not interfere with such an award unless the Court acted on a wrong principle or the amount awarded is so manifestly excessive or manifestly low that a misapplication of law is inferred.</p> <p>With respect, I think the learned Justice correctly stated the principles governing the award of damages. The learned Justice then concluded,</p> <p>“In the instant, the learned Judge awarded an omnibus sum of Shs.180 million to cover general and exemplary (sic) damages and loss of employment. There is no cross-appeal by the respondent challenging the award as being manifestly excessive. The appellant is not complaining that the amount is manifestly low as to have occasioned a miscarriage of justice. Ideally, the trial judge ought to have indicated how much he awarded under each head of damages. Failure to do so, however, is insufficient for this Court to interfere with the award. There is no evidence of any injustice which the appellant suffered as a result of the omnibus award. Consequently, the ground would fail. ”</p> <p>The first point to consider is whether the trial judge was correct in awarding one omnibus sum for general and aggravated damages instead of awarding separate sums for each claim of damages. The appellant made separate claims for special damages, loss of future earnings, payment in lieu of leave, Foreign Service allowances, lunch, housing, and transport allowances among others, as well as general, aggravated and exemplary damages.</p> <p>In his judgment, the learned trial judge considered the various heads of special damages claimed and observed that the appellant had another 26 years before reaching retirement age of 60 years. He also accepted the evidence that the appellant had been earning a salary of Shs.247,542/= per month at the time of his dismissal. The appellant was also earning a transport allowance of Shs.99,107/=, Shs.75,000/= for tea and Shs. 115,000/= for lunch, making a monthly package of Shs.746,649/= at the time of his dismissal. The trial judge also considered that the appellant had lost prospects of promotion.</p> <p>The trial judge then concluded,</p> <p>“Taking all the above factors into consideration, Court awards the plaintiff a sum of Shs.180,000,000/= as compensation and general and aggravated damages for loss of employment. This sum represents approximately twenty (20) years of pay, at the monthly salary (less tax) and allowances the plaintiff was receiving at the time of his dismissal. The sum also represents general and aggravated damages for the inconvenience, loss of prospects of future employment and entitlements, and the suffering the plaintiff was subjected to in being suddenly dismissed without a fair hearing. ”</p> <p>In my view, the trial judge acted on a wrong principle in failing to award separate sums of damages for each claim. A claim for special damages is based on different grounds and principles than a claim for general damages. Special damages represent actual losses suffered by the claimant as a result of the wrong committed and must be specifically pleaded and proved. General damages are at large and are assessed by the Court on the basis of the injury, suffering and inconvenience caused to the plaintiff.</p> <p>In the present case, the Court of Appeal erred in not interfering with the omnibus award of special, general and aggravated damages. The Court of Appeal erroneously stated that the award included exemplary damages which had been rejected by the trial judge. The Court of Appeal was not justified in concluding that the award caused no prejudice to the appellant when some of his claims for special damages were not considered.</p> <p>The appellant pleaded particulars of the various items of special damages which included unpaid salaries, unpaid allowances for transport, housing lunch disturbance, medical treatment, cost of air ticket to China, and cost of two nights he spent in Speke Hotel, among others.</p> <p>According to his plaint, the total amount of special damages was Shs. 42,787,778 and US$136,425,07. The appellant detailed out how he arrived at these figures covering the period 1998 to 2005.</p> <p>In his evidence at the trial, the appellant stated that at the time of his dismissal in 1998 his salary was Shs.247,542 per month but over the years the salary had been increased in 2005 to Shs.720,575/= per month and that by November 2007 it was Shs.740,940 per month.</p> <p>The trial judge accepted the evidence of the appellant that his monthly salary at the time of his dismissal was Shs.247,542/=. He also accepted the appellant’s evidence that he was earning a transport allowance of Shs.210,000 per month, a monthly housing allowance of Shs.99,107/= and Shs.75,000/= and Shs. 115,000/= as tea and lunch allowance respectively.</p> <p>The trial judge found that the appellant was earning a total package of Shs.746,649/= per month at the time of his dismissal. He acknowledged that the appellant had 26 years of working before he reached retirement age. The trial judge concluded,</p> <p>“Taking all the above factors into consideration court awards the plaintiff a sum of Shs.180,000,000/= as compensation and general and aggravated damages for loss of employment. This sum represents approximately twenty (20) years of pay at the monthly salary (less tax) and allowances the plaintiff was receiving at the time of his dismissal. The sum also represents general and aggravated damages for inconvenience loss of prospects of future employment and entitlements, suffering the plaintiff was subjected to in being suddenly dismissed without a fair hearing. ”</p> <p>It is not clear why the trial judge considered only 20 years instead of 26 years the remaining working age of the appellant. I think the total period of 26 years should have been taken into account in calculating his unpaid salaries and allowances. In other words, the sum of unpaid salaries and allowances should have been arrived by this computation: 746,649 x 12x 26 = 232,954,488/=.</p> <p>However, if the periodic increases in salary and allowances of public servants is taken into account, in view of the evidence produced by the appellant, it is reasonable to conclude that the appellant’s salary would have been raised by at least 25% over the years. The sum of Shs.232,954,488 would be increased by 25% that is by 58,238,622/= to make a total of Shs.291,193,110/=. I would award the appellant a sum of Shs.300,000,000/= for loss of earnings of salary.</p> <p>The Court of Appeal, therefore, erred in not awarding this sum as special damages.</p> <p>The appellant also claimed US$274,300.15 for loss of Foreign Service allowances which he would have received on posting to Foreign Missions. The trial judge rejected this claim, holding that they were merely speculative as the appellant never actually earned them. I am unable to fault the decision of the trial judge on this head of damages.</p> <p>The trial judge awarded the appellant Shs. 1,500,000/= he claimed as transport allowances to transport his personal effects to his home area in Kumi. This award was not contested.</p> <p>The trial judge rejected claims for housing allowance while abroad and disturbance allowance as speculative. I think the trial judge was justified in reaching that decision.</p> <p>The trial judge held that the claims for salary in lieu of leave and settling down were covered by the overall award of general damages. With respect, I think that there should have been a specific award for salary in lieu of leave as claimed by the appellant. The sum claimed for eight years was Shs. 1,595,025/= while at the headquarters and US.$3,810.2 while at the Mission abroad.</p> <p>The trial judge accepted the evidence of the plaintiff that his last gross salary was Shs.746,649/= per month. He also held that the appellant would have had another 26 years in service. The appellant’s evidence was that he was entitled to 30 days leave per year while at the headquarters. Therefore, for 26 years, the appellant would have been entitled to an amount of Shs. 19,412,874/= salary in lieu of leave. The appellant should have been awarded this sum. Salary in lieu of leave while away on Mission was speculative and was not recoverable.</p> <p>The trial judge awarded a sum of US. $1,392, the appellant incurred to send Francis Aluvia to China to collect his property. This amount was not contested. The trial judge also awarded the appellant Shs.245,542/= as salary withheld during interdiction. Again this sum was not contested.</p> <p>The trial judge declined to award special damages for medical expenses because these were not proved. He also declined to award damages for the damaged suit as evidence of the plaintiff was not credible on the issue. The claims for housing allowance and for disturbance allowance were also rejected as speculative. I am unable to find that the trial judge erred in rejecting these claims for the reasons he gave.</p> <p>As regards the omnibus award of Shs. 180,000,000/= “as compensation and general and aggravated damages for loss of employment” as</p> <p>Stated by the trial judge, it is clear that the award included special damages for loss of employment on the one hand, and general and aggravated damages on the other. Efforts have been made in this judgment to make separate awards of special damages on specific heads claimed. The last issue that remains for this Court is to determine whether the omnibus sum awarded should be interfered with in awarding general and aggravated damages in this case.</p> <p>In my view taking into account the fact that the appellant has been awarded special damages for salary arrears but recognizing the fact that the appellant lost his employment while still young, as a result of which he has suffered embarrassment and inconvenience, and the loss of future earnings, I would award the appellant Shs. 150,000,000/= as general damages.</p> <p>Ground 13: Failure to award punitive or exemplary damages</p> <p>The appellant complains that the learned Justices of the Court of Appeal erred in law and in fact by upholding no award of punitive or exemplary damages. The appellant submitted that punitive damages apply to cases of oppressive, arbitrary, harsh or unconstitutional action by the servants of Government or while there was a desire to make a profit. He relied on the case of Rooks vs. Barnard (1964) AC 1131, to support his submission. He contended that punitive damages are usually penal in nature and are awarded to punish the offender and appease the victim. He cited the case of Uganda Revenue Authority vs. Wanume David Kitamirike CACA No. 43/2010 in support of his submission. The appellant submitted that his unlawful dismissal without a hearing, the unlawful arrest, confinement and torture, were oppressive and unconstitutional, deserving an award of substantial amount of punitive damages.</p> <p>Secondly, the appellant contended that there was unjust enrichment of the respondent at the expense of the appellant when the Court awarded him only Shs. 180,000,000/= which was too far less than the amount the appellant would have earned had he stayed working in the Foreign Affairs Ministry.</p> <p>The respondent supported the decision of the trial judge in not awarding punitive damages. The respondent agreed with the appellant that the principles governing the award of exemplary or punitive damages were enunciated in the case of Rooks vs Bernard (supra), but argued that the appellant had failed to prove that his dismissal was high handed, oppressive and unconstitutional and that the ordering of the Chinese Police to arrest, confine and torture him were also unconstitutional, oppressive, and arbitrary as he alleged in the plaint.</p> <p>In his judgment, the trial judge stated,</p> <p>To the extent that the plaintiff admits that while in China, the Uganda Ambassador had brought to his attention (Plaintiff’s) some aspects of alleged indiscipline which acts constituted some of the charges against the plaintiff, goes to show that there was a prima facie case against the plaintiff to answer before the Public Service Commission. What made the process of subjecting the plaintiff to disciplinary control illegal was the failure to hold a full hearing and giving the plaintiff a fair hearing. This Court is therefore, unable to find in this plaintiff’s case, that apart from the wrong and illegality stated above on the part of the defendant, there was callousness, lack of compassion and indifference towards the plaintiff on the basis of the above, and also on the basis of resolution of issues as to unlawful arrest, unlawful confinement, assault, and defamation, this Court declines to award any punitive damages to the plaintiff.”</p> <p>In the Court of Appeal, the appellant complained about the failure of the trial judge to award punitive or exemplary damages in the eighth ground of appeal. However, the learned Justices of the Court of Appeal appear not to have expressly considered the ground save to decline to interfere with the discretion of the trial judge when he awarded an omnibus sum of money to cover general and aggravated damages.</p> <p>With respect, I think that the learned Justices of the Court of Appeal erred in not considering the claims of exemplary damages separately because they were not part of general or aggravated damages awarded. As indicated above, the trial judge declined to award them and therefore, it was incumbent upon the Court of Appeal to address the issue and come to its own decision.</p> <p>The principles governing the award of exemplary or punitive damages were set out by Lord Delvin in the case of Rooks vs. Barnard (supra) and generally approved in the case of Cassel &amp; Co Ltd vs. Broome (1972) A.C. 1027. In Rooks vs. Barnard (supra), it was decided that the three cases where exemplary damages might be justified were:</p> <ol> <li>Where the government servants had been guilty of “oppressive, arbitrary or unconstitutional action”.</li> <li>Where the “defendant’s conduct had been calculated by him to make a profit for himself which may exceed the compensation payable to the plaintiff” and</li> <li>Where such an award was sanctioned by Statute.</li> </ol> <p>Furthermore, Lord Delvin stated that where exemplary damages are awarded, three considerations were to be borne in mind, namely,</p> <ol> <li>The plaintiff cannot recover exemplary damages unless he was a victim of punitive behaviour.</li> <li>Restraint is to be exercised, for an award of exemplary damages can be used as a weapon both for or against liberty.</li> <li>The means of the parties while irrelevant in the assessment of compensation are relevant to the award of exemplary damages.</li> </ol> <p>One of the fundamental principles emerging from both Rooks Vs. Barnard (supra) and Cassell &amp; Co Ltd. Vs. Broome (supra) is that in general, exemplary damages should not be awarded since the object of awarding damages is to compensate the plaintiff and not to punish the defendant.</p> <p>Applying the above principles to the present case, I agree with the trial judge that the conduct of the respondent in bringing disciplinary proceedings against the plaintiff was not oppressive, arbitrary, or unconstitutional as it was entitled to do so in order to allow the appellant opportunity to answer charges laid against him. The fact that the procedure followed by the respondent did not give the appellant a fair hearing does not mean that the respondent acted in an oppressive or arbitrary manner.</p> <p>Secondly, the trial judge rightly rejected the appellant’s claim that the respondent was vicariously liable for the actions of the Chinese Police in confining or torturing him as he alleged. Thirdly, the respondent did not stand to make a profit which exceeded the appellant’s compensation because the respondent was not responsible for the award made by the Court.</p> <p>For these reasons, I am of the view that the trial judge was justified in declining to award exemplary damages to the appellant, and the failure of the Court of Appeal to consider the matter did not occasion any prejudice to the appellant. Therefore, ground 9 should fail.</p> <p><a name="bookmark4">Ground 14: Award of higher interest on general damages</a></p> <p>In ground 14, the appellant complains that the learned Justices of Appeal erred in upholding an award of a higher interest of 20% not pleaded for on the general and aggravated damages. The appellant submitted that it is a cardinal principle of law that a Court should base its decision on pleaded matters. In support of this principle, he relied on the cases of Julius Rwabinunu vs Hope Bahimbisabwe SCCA No. 10/2009, Hotel International Ltd vs Administrator of the Estate of the late Robert Kavuma SCCA No.37/1995 and Standard Chartered Bank (U) Ltd vs Grand Imperial Hotel (U) Ltd. CACA No. 13/1999.</p> <p>The appellant pointed out that he had prayed for interest of 25% on special damages to be awarded from the date of interdiction or consequent dismissal until judgment, and interest on general, aggravated and punitive damages at the Court rate from date of judgment until payment in full. He contended that the trial judge erred in awarding an omnibus interest rate on both general and aggravated damages from the date of his dismissal until payment in full. The appellant submitted further that interest on general damages cannot be awarded from the date of his dismissal because at the time of dismissal the Court had not yet assessed those damages. The appellant referred to the cases of Prem Rata vs Mbiva (1965) EA 592, Sietco vs Noble Builders (U) Ltd and Mukisa Biscuits Manufacturers Co Ltd vs Nile Distributors Ltd No. 2 (1970) E.A 475.</p> <p>On the other hand, the appellant argued, in cases of wrongful dismissal, interest should be payable from the date of dismissal: see Bold vs Brough Nicholson and Hall Ltd (1963) 3 A LL ER 87.849. Finally, the appellant submitted that the current bank rate of 20% should be considered appropriate.</p> <p>The respondent submitted that since the appellant was seeking to be awarded a lower rate of interest than what the Court had awarded him, it had no objection. Although an award of interest is in the discretion of the Court, the respondent submitted that the rate of interest of 20% on general damages was too high and should be reduced to 8%, running from the date of judgment not dismissal.</p> <p>It is well settled that the award of interest is in the discretion of the Court. The determination of the rate of interest is also in the discretion of the Court. I think it is also trite law that for special damages the interest is awarded from the date of loss, and interest on general damages is to be awarded from the date of judgment.</p> <p>In the present case, the respondent has conceded that the trial judge erred in awarding interest on general damages from the date of dismissal. It does appear to me that the error was caused by the trial judge in lumping special damages together with general damages. The appellant never pleaded or prayed for such a high interest. Therefore, the trial judge should have awarded the appellant interest on general damages at the Court rate from date of judgment. The rate of interest of 20% should have been awarded on special damages from the date of interdiction or dismissal till payment in full. Accordingly, I find merit in this ground of appeal which should succeed.</p> <p><a name="bookmark5">Decision:</a></p> <p>In the result, this appeal partially succeeds. I would set aside part of the decision of the Court of Appeal and substitute it with the following orders:</p> <ol> <li>The appellant is awarded special damages of Shs.300,000,000/- for arrears of salary which he would have earned in 26 years of service.</li> <li>The appellant is awarded Shs. 19,414,874/= as salary in lieu of leave for 26 years.</li> <li>The appellant is awarded interest on special damages in paragraphs 1 and 2 above at 20% from the date of his dismissal till payment in full.</li> <li>The appellant is awarded Shs. 150,000,000/= as general damages, with interest at Court rate from the date of judgment till payment in full.</li> <li>The appellant is awarded 50% of the costs in this Court and of the Courts below.</li> <li>The following orders of the trial Court which were upheld by the Court of Appeal are confirmed:</li> </ol> <ol> <li>Shs. 495,084/= withheld salary during interdiction from 04.03.98 to 08.06.98</li> <li>Shs.1,500,000/= transport allowance for the appellant to transport his personal effects to his home area in Kawo Village, Kumi District.</li> <li>US$90 or equivalent in Uganda Shillings at the obtaining current rate of exchange as at the time of effecting payment being the cost of residence by the appellant for the two nights at Speke hotel, Kampala.</li> <li>US$1,372 or its equivalent in Uganda Shillings at the obtaining current rate of exchange as at the time of effecting payment, being the cost of an air ticket to one Francis Aturia, who had to go to China to retrieve the appellant’s money that was in the bank.</li> </ol> <p>&nbsp;</p> <p>&nbsp;</p> </div> <p>&nbsp;</p> <div> <p>&nbsp;</p> </div> <p>&nbsp;</p> <div> <table cellpadding="0" cellspacing="0" style="height:42px; width:358px"> <tbody> <tr> <td> <p>Dr B J.ODOKI</p> <p>AG JUSTICE OF THE SUPREME COURT</p> </td> </tr> </tbody> </table> <div>&nbsp;</div> &nbsp; <p><img src="file:///C:\Users\BMULIN~1\AppData\Local\Temp\msohtmlclip1\01\clip_image001.gif" style="float:left; height:21px; width:55px" /></p> <p>Dated at Kampala this 8th day <sup>of</sup> April 2015</p> </div> <p>&nbsp;</p> <div> <p>THE REPUBLIC OF UGANDA</p> <p>IN THE SUPREME COURT OF UGANDA AT KAMPALA</p> <p>(CORAM: KISAAKYE; AKA CH-AMOKO JJ.S. C; ODOKI; OKELLO &amp; KITUMBA Ag. JJSC)</p> <p>CIVIL APPEAL NO. 06 OF 2012</p> <p>&nbsp;BETWEEN</p> <p>OMUNYOKOL AKOL JOHNSON::::::::::::::::::::::::::::::::::::: APPELLANT</p> <p>AND</p> <p>ATTORNEY GENERAL:::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT</p> <p>[An Appeal arising from the Judgment of the Court of Appeal (Byamugisha, Kavuma, Nshimye, JJ.A) dated 29<sup>th</sup> May, 2012 in Civil Appeal No.71 of 2010.]</p> <p>JUDGMENT OF DR. KISAAKYE, ISC.</p> <p>I have had the benefit of reading in draft the Judgment of my brother, Odoki, Ag JSC. I agree with him that the learned Justices of Appeal erred when they held that the Employment Act, 2006 also applied to the appellant. Furthermore, I agree with his finding that it was wrong for the learned trial judge to order an omnibus award of Uganda Shs. 180,000,000/ = being</p> <p>compensation for general and aggravated damages for loss of the appellant’s employment. I therefore agree with him that this appeal should partly succeed.</p> <p>In his proposed order, Odoki, Ag JSC, together with the other members of the Coram have substituted the omnibus award of Shs. 180,000,000/ = with 3</p> <p>&nbsp;orders which I however take issue with. First, they have awarded the</p> <p>appellant Shs. 300,000,000/=, being arrears of salary he would have earned in the 26 years of service he would have served the government, if he had not been unlawfully dismissed by the respondent. This figure includes a 25% increase in the appellant’s arrears from 1998 to 2014.</p> <p>Secondly, they have ordered that this award of Shs. 300,000,000/= should attract interest at the rate of 20% per annum from the date of dismissal until payment in full.</p> <p>Thirdly, they have also awarded the appellant Shs. 150,000,000/ = being general damages for loss of his employment while he was still young and for</p> <p>embarrassment, inconvenience and loss of future earnings.</p> <p>In as much as I agree with the majority that this appeal should succeed in part, I take issue with the Court’s refusal to order the reinstatement of the appellant back to his employment. I also take issue with the award of Shs.</p> <p>300,000,000/ = which covers a total of 26 years, from the date of the</p> <p>appellant’s dismissal in 1998 to 2024, the date he would have retired from government service. I further take issue with the rate of interest awarded, as well as the period when it is supposed to commence and end, as well as the amount of general damages that have been awarded.</p> <p>With the exception of the orders that I have specifically referred to in this&nbsp; Judgment, I agree with the rest of the orders as proposed in the Judgment of my brother, Odoki, Ag JSC.</p> <p>The arguments of the parties were properly outlined in the Judgment of my brother, Odoki, Ag. JSC. Except where they are relevant to my discussion, I will not delve into them.</p> <p>I will now proceed to discuss why I would partially allow this appeal and the orders I would accordingly make.</p> </div> <p>&nbsp;</p> <div> <p>Reinstatement of the Appellant in His Employment</p> <p>In spite of the period that it has taken our Courts to finalize the appellant’s claims, I would not have a problem ordering reinstatement of the appellant</p> <p>&nbsp;into his employment.</p> <p>It should be remembered that all the Courts, including this Court have ruled that the appellant’s dismissal was void ab initio. This means in law, the appellant’s dismissal never took legal effect. Because the appellant’s dismissal was found to be void ab initio, the de jure position was that the appellant’s</p> <p>&nbsp;employment persisted, although the de facto position is that the appellant has been out of office since 1998 to date.</p> <p>It therefore follows that reinstatement should follow our finding that the appellant’s dismissal was void ab initio. The appellant’s employment has never been terminated in law, because the purported dismissal by the Public</p> <p>&nbsp;Service Commission without following the due process of law was of no effect.</p> <p>One of the factors relied on by the Courts in declining to order the appellant’s reinstatement into his employment is the long period the appellant has been out of office, which totals to 17 years. Both Courts below and this Court have</p> <p>argued that it is not practicable for the Government to take the appellant back because of this time lapse. It has further been argued, among other reasons, that it would be difficult to place the appellant back in office and to establish the appropriate rank since his colleagues had since been promoted. The majority have further argued that ordering the reinstatement of the</p> <p>appellant to his former employment would amount to imposing the appellant on his employer.</p> <p>With due respect to my brothers and sisters, I respectfully disagree with their position. First, I do not see why the delay by the Courts to conclusively deal with the appellant’s claim should prejudice the appellant’s prayer for reinstatement into his employment. The record shows that once the appellant&nbsp; was unlawfully dismissed from office in 1998, he filed this action in the High Court in 2001. The record further shows that the matter stalled at the High Court for a total of 9 years. During this period, the Attorney General sought and was granted numerous adjournments by the Court. Eventually, the matter was decided without the Attorney General adducing evidence in</p> <p>&nbsp;support of the government’s case.</p> <p>While I take serious note of the fact that 17 years have lapsed since this unlawful act was done by the respondent, I have also considered the fact that for the most part, the appellant has not been responsible for this delay. He should therefore not suffer the consequences of delay he has not caused.</p> <p>I am also not convinced with the reasoning by the trial Judge, the Court of Appeal and this Court that the appellant could only be taken back into government’s employment if there was evidence that the employer was willing to have him back. In the case of a public office such as the one that the appellant held, who, on behalf of the government would have to make</p> <p>&nbsp;this determination that the appellant was welcome back to his original ministry or not welcome?</p> <p>In my view, this reasoning is untenable in law, since it is extending the common law principle of not forcing private sectors employers to retain employees they are not willing to continue employing.</p> <p>In 2006, Uganda enacted the Employment Act, which provided for reinstatement, as a possible remedy to an employee who is unlawfully dismissed from a non-public sector job unless the employer proves that such</p> <p>a reinstatement would cause unnecessary hardship to the employer. But as I noted earlier, the Employment Act does not apply to the appellant because he was employed in the Public Service.</p> <p>The respondent in this case did not adduce any evidence to show what unnecessary hardship Government would suffer by reinstating the appellant into his employment. It is the lower Courts that came to this conclusion, which unfortunately was not supported by evidence on record. The fact that the law now allows reinstatement even in the private sector should support the fact that reinstatement in public sector jobs, which do not depend on</p> <p>&nbsp;individual preferences, should also be possible.</p> <p>Apart from the legal arguments in support of the appellant’s reinstatement onto his employment, there are also other constitutional and public policy considerations, in my view, to support reinstatement of unlawfully dismissed employees back to their employment.</p> <p>First of all we should also not lose sight of the fact that the appellant as a Foreign Service officer was holding a public office. Article 38(1) of the Constitution of Uganda gives Ugandan citizens a right to participate in the affairs of their government at individual level. Holding a job in the Public Service is, in my view, one way a qualified Ugandan citizen can exercise his</p> <p>&nbsp;or her right under this Article.</p> <p>Secondly, Courts should guard against a culture of impunity in employment where “errant” public officers deliberately ignore set procedures and use unconstitutional methods to kick out their juniors unlawfully, well knowing that their only remedy, after protracted legal battles such as the one the</p> <p>&nbsp;appellant has gone through, will be monetary compensation, that is if the unlawfully dismissed public employee survives through it.</p> <p>In my view, Courts should not shy away from reinstating public employees who are victims of unlawful and unconstitutional conduct into their positions, where the affected employee is ready and willing to resume his/her employment. For us to do so, we will be encouraging a culture of impunity</p> <p>among public officials entrusted with positions of authority. This is because such officials and others holding positions of power, will continue to engage in such unconstitutional conduct, well knowing that victims’ recourse in such cases is only in monetary compensation and not in reinstatement.</p> <p>Secondly, unlawful dismissals can have serious economic consequences on</p> <p>the affected employee. In a situation where the employee who is unlawfully dismissed had made financial arrangements based on his/her anticipated monthly salary and emoluments, the consequences of a sudden loss of a job can be devastating. This is likely to be the case where, for example, such an employee has taken out a salary loan or mortgaged his/her property with the</p> <p>&nbsp;hope of paying the loan installments out of his/her salary. Such mortgaged property may be repossessed as a result of his or her inability to service the loan. The affected employee may also be rendered unable to meet his parental obligations, among others.</p> <p>The value of employment goes beyond the monetary benefits one gets.</p> <p>Whereas monetary compensation can go a long way to atone for some economic losses of an employee who is unlawfully dismissed from his/her permanent and pensionable employment, loss of employment should not only be viewed from an economic angle. The sudden loss of a job on the employee can have devastating effects on the affected employee as a person, who may</p> <p>&nbsp;not only suffer a loss of sense of purpose but a range of other social- psychological effects as well. There is therefore need to also look at the professional and social fulfillment perspective and sense of stability that comes with holding the job.</p> </div> <p>&nbsp;</p> <div> <p>It is for all the reasons above that I would order the appellant to be reinstated in his employment.</p> <p>I will now turn to consider what additional remedies I would grant to the appellant.</p> <p>Award for lost earnings from the date of dismissal till the date of judgment of this Court</p> <p>Apart from the order reinstating the appellant into his employment, I would also award him his salary and allowances he would have earned from the date of his dismissal until the date of this judgment.</p> <p>I am aware that the majority has awarded the appellant Shs. 300,000,000 being lost earnings he would have earned from 1998 (when he was dismissed) to 2024 (when he would have retired). This Court has relied on the evidence that was tendered by the appellant as proof of what his salary and allowances were, at the time he was dismissed. Basing on these monthly</p> <p>earnings of the appellant in 1998, the Court has, after a 20% adjustment to cater for promotions and increments to cover of the period 1998-2024, arrived at an award of 300,000,000/ = to cover what the appellant would have earned if he had not been unlawfully dismissed.</p> <p>Even with the evidence that the appellant provided to the Court, I am not satisfied that this Court is in position to ascertain the arrears of salary and allowances that the appellant would have earned if he had not been unlawfully dismissed.</p> <p>In Lukyamuzi v Attorney General &amp; Electoral Commission, Supreme Court Const. AppealNo.2 of2007, the appellant successfully moved this Court to</p> <p>&nbsp;quash the decision of the Speaker of Parliament, acting on the directives of the Inspector General of Government, to remove him from Parliament for</p> <p>failure to declare his wealth. This Court did not make a specific award of how much the appellant was entitled to in terms of lost emoluments for the reminder of the Parliamentary term that he did not serve as a result of his unconstitutional removal from Parliament. Rather, this Court directed the</p> <p>Clerk to Parliament to compute the appellant’s dues, which were then filed in this Court and became part of the decree of this Court.</p> <p>Following our decision in the Lukyamuziappeal, I would similarly order the Ministry of Public Service, working, where necessary, with the Ministry of Foreign Affairs, to compute the dues owing to the appellant from 1998 to the</p> <p>date of our Judgment. This directive would have to be implemented within 60 days from the date of our Judgment and to be filed with the Registrar of the Supreme Court. I would also order that when the Ministry of Public Service has done its computation, it should afford an opportunity to the appellant to study the computation and to lodge with the Ministry of Public</p> <p>&nbsp;service within a period of 2 weeks, any concerns he may have regarding the computation, with a view to addressing any queries he may raise. Upon the Ministry’s completing the re-examination of its computation, and being satisfied that it is the final computation that has been done, the Attorney General would file the computation of the appellant’s dues in this Court. The</p> <p>&nbsp;amount so computed would then form the decree of the Court and would attract interest at the rate of 6% per annum from the date of our judgment until payment in full.</p> <p>Payments of Appellant’s Salary and Allowances from the date of our Judgment until the appellant’s date of retirement</p> <p>The period after our judgment i.e. 2015 - 2024 (9 years) should be treated differently from the period prior to rendering our final judgment. I would not make an order for payment of the appellant’s salary after the date of our judgment.</p> </div> <p>&nbsp;</p> <div> <p>As I observed earlier in this judgment, the employment of the appellant has never been terminated in law. Hence, after the judgment of this Court, the appellant would have been able to resume his duties with the respondent, since his employment would be continuing. The respondent would reinstate</p> <p>&nbsp;the appellant on its payroll at such level as the Ministry of Public Service would have reconstructed, and either retain him in Foreign Service or transfer him to any other Government department, (that is if this was part of his terms). The respondent would also have the option to deal with him as it deals with its other employees in continuing service including retiring him in</p> <p>&nbsp;public interest, if he qualifies for this option.</p> <p>If the appellant engages in any other conduct that warrants disciplinary action after his reinstatement, the employer will also be entitled to take such disciplinary action that will be appropriate including dismissal or termination, but only after complying with the law on disciplinary action.</p> <p>The appellant will only be able to hold onto his job, provided that he does the work properly. Payments to the appellant will also only become due after he has duly rendered the agreed upon services to the employer.</p> <p>It therefore follows that earning his salary until his retirement age would depend on whether he continues to render his services as is required of him</p> <p>&nbsp;under his terms of employment. It is therefore not right for us as a Court, in my view, to pre-suppose that the appellant would have served until his retirement and to impose him on the employer for the remaining 9 years.</p> <p>It is also my view, that the period spanning from the date of our judgment till the appellant’s retirement should not be the concern of this Court. I am not aware of any law that allows an employee to be paid salary in advance for the remainder of the years to his retirement. In this case, this amounts to 9 years advance payment. To make matters worse, this advance payment of salary will be carrying interest at the rate of 20% per annum from 1998; the date of</p> <p>the appellant’s unlawful dismissal! In my view, the appellant is only entitled to earn the post judgment salary so long as he remains in service. This Court cannot predict that the appellant would have earned that salary because salary is dependent on continued employment and is earned on a monthly</p> <p>&nbsp;basis for the services provided by an employee.</p> <p>I am also not aware of any law that gives Courts power to impose an employee on his employer and vice versa, by making the assumption that an employee hired on permanent and pensionable terms will serve until he or she reached retirement age. Article 40 of the Constitution of Uganda gives a</p> <p>&nbsp;right to employee to “withdraw his labour according to law.” Termination of an employment relationship, even where such employment is permanent and pensionable, is therefore possible by both the employer and the employee, provided it is done lawfully. Court’s business should be to ensure that if the termination of one’s employment was not done properly, the victim is</p> <p>&nbsp;accorded the appropriate remedies.</p> <p>It is not therefore not right, in my view, for this Court to order payment for the duration of the appellant’s remaining years of service. It goes without saying that an employment relationship can always be lawfully terminated by either party. For instance, an employee may opt to resign his job in search for</p> <p>greener pastures, or for better career progression opportunities. There is also the option of voluntary early retirement or retirement by the employer in public interest. On the other hand, the employee may also misbehave and hence cause the employer to terminate his employment. In the worst case scenario, an employee may die before he reaches his retirement date.</p> <p>It therefore follows that such award based on the assumption that an employee who is employed on permanent and pensionable terms will automatically serve his or her entire term until he or she attains retirement</p> </div> <p>&nbsp;</p> <div> <p>age is, in my view, very speculative. In this particular case, it presupposes that the appellant would have worked for the government until 2024.</p> <p>In Bank of Uganda v. Betty Tinkamanyire, Supreme Court Civil Appeal No. 12 of2007, Kanyeihamba, JSC (as he then was) rightly rejected this claim for the</p> <p>&nbsp;respondent employee who had been unlawfully dismissed when she had 4 years only remaining to reach her retirement age. In his judgment, he argued thus:</p> <p>“The contention that an employee whose contract of employment is terminated prematurely or illegally should be compensated for the</p> <p>remainder of the years or period when they would have retired is</p> <p>unattainable in law. Similarly, claims of holidays, leave, lunch allowances and the like which the unlawfully dismissed employee would have enjoyed had the dismissal not occurred are merely speculative and cannot be justified in law. ”</p> <p>I entirely agree with the reasoning above. In cases where an employee is unlawfully dismissed from permanent and pensionable service, the Court should, in my view, be only concerned with the period from the date of the unlawful dismissal up to the date of its judgment. Once the Court has ordered the employee to resume his employment, the laws and regulations</p> <p>&nbsp;that regulate his employment should kick in.</p> <p>It therefore follows that my order for reinstatement of the appellant into his employment would make it unnecessary for me to order for the payment of the appellant’s salary and allowances after our judgment.</p> <p>What rate of interest should be awarded on the Appellant’s emoluments and &nbsp;for what duration?</p> </div> <p>&nbsp;</p> <div> <p>The majority has ordered that the appellant be paid interest at 20% on</p> <ol> <li>000/=, from the date of his dismissal till payment in full.</li> </ol> <p>As I pointed out earlier in this judgment, I do not agree with this award but rather with an award properly computed by the Ministry of Public Service.</p> <p>However, since the majority have ruled in favour of awarding the appellant the 300,000,000/ = as special damages for lost earnings, I will briefly comment on the additional order that has been made to award a 20% interest rate on this sum. This rate of interest is very high and unjustified, in my view, when one takes into account the fact that this transaction was not a</p> <p>commercial transaction.</p> <p>I appreciate the fact that the appellant has been denied enjoyment of his salary for 17 years since 1998. However, I am also cognizant of the fact that the appellant is also going to get a lump sum payment instead of the monthly salary he would have received if he had not been unlawfully dismissed.</p> <p>I would instead award interest at the rate of 6% per annum on the salary and allowances he would have earned as computed by the Ministry of Public Service, from 1998 when he was dismissed till the date of our judgment.</p> <p>But apart from the rate of interest, I am also unable to agree that the appellant’s lost earnings after our judgment, comprising of up to 9 years of</p> <p>&nbsp;what would have been his monthly salary and earnings, from the date of this judgment until the appellant’s year of retirement in 2024, will be attracting interest from the date of his dismissal in 1998!The appellant was due to retire in 2024 if he had not been unlawfully dismissed from service. Until then, he would have continued, like all other government employees, to earn</p> <p>&nbsp;his salary and allowances on a monthly basis. So, if he was terminated</p> <p>prematurely and unlawfully, the salary he would not have earned i.e. from</p> <p>&nbsp;2015 (after our judgment) till 2024 (when he would have retired) cannot</p> <p>and should not earn interest from 1998 when he was dismissed. I would therefore not award interest on this salary. As I argued earlier in this judgment, reinstating the appellant into his employment would avoid this scenario.</p> <p>General Damages</p> <p>The majority have awarded the appellant Shs. 150,000,000/ = as general damages for the inconvenience and embarrassment he has suffered as well as loss of future earnings. I find this award unjustifiably high, given that the award of 300,000,000/= already covers the entire period up to the year the</p> <p>appellant would have retired from public service. It therefore follows that under the formula used by the majority, he has not lost any future earnings, since he will have been paid for the entire period from the date of dismissal to the date of retirement.</p> <p>Given that I would order his resumption of his duties as opposed to the lump sum payment of 300,000,000/=, in addition to payment of his dues from the date of his dismissal to the date of our Judgment, I would accordingly award him 50,000,000/= shillings as general damages. This order takes into account the fact that under my judgment, the appellant would also be able to earn his pension. My award of general damages also takes into account the</p> <p>fact that much as the appellant had been unlawfully dismissed from his employment, he had a duty to mitigate his loss by seeking alternative employment during the entire time he was pursuing his claims in Court. This amount would attract interest at 6% per annum from the date of our Judgment.</p> <p>Conclusion</p> <p>I would therefore allow this appeal to succeed in part and make the following Orders:</p> <ol> <li>That the Ministry of Public Service computes the appellant’s dues from 1998 (the date of his dismissal) to the date of our judgment, not later than 45 days from the date of this Judgment.</li> <li>That the computed dues should be filed by the respondent with the</li> </ol> <p>&nbsp;&nbsp;&nbsp; Registrar, Supreme Court, not later than 60 days from the date of our</p> <p>Judgment.</p> <ol> <li>That immediately after the computation of his dues, the Public Service Commission should reinstate the appellant to his employment either in the Ministry of Foreign Affairs or in any other Ministry to the level</li> </ol> <p>&nbsp;&nbsp;&nbsp; commensurate with the last computed salary he would have been</p> <p>earning at the time of the Judgment of this Court.</p> <ol> <li>That, in the event that the appellant cannot be reinstated in his employment, the respondent should arrange to retire him in public interest but with full benefits calculated on the basis of the last computed</li> </ol> <p>&nbsp;&nbsp;&nbsp; salary he would have been earning at the time of the Judgment of this</p> <p>Court.</p> <ol> <li>That the appellant be paid Shs. 50,000,000/= as general damages for the inconvenience he has suffered as a result of the unlawful decision of the Public Service Commission.</li> </ol> <p>f) That the appellant be paid his salary in lieu of leave from the date of his dismissal till the date of our Judgment.</p> <p>g) That the appellant be paid all the other awards that were made by the trial Judge, which are listed in the Judgment of Odoki, Ag. JSC,</p> <p><u>Order of the Court</u></p> <p>As the rest of the members agree with the Judgment of Odoki, Ag. JSC, this appeal is allowed in part on the terms proposed by him in his lead Judgment.</p> <p><img src="file:///C:\Users\BMULIN~1\AppData\Local\Temp\msohtmlclip1\01\clip_image002.gif" style="float:left; height:19px; margin-bottom:0px; margin-top:49px; width:77px" /><img src="file:///C:\Users\BMULIN~1\AppData\Local\Temp\msohtmlclip1\01\clip_image003.gif" style="height:26px; width:479px" /><br /> Dated at Kampala this &nbsp;8<sup>th</sup> day of&nbsp;&nbsp;&nbsp;&nbsp; April&nbsp;&nbsp;&nbsp; 2015</p> <p>&nbsp;</p> <p>&nbsp;HON.DR.ESTHER KISAAKYE</p> <p>&nbsp;</p> <p>JUSTICE OF THE SUPREME COURT</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> </div> <p>&nbsp;</p> <div> <p>THE REPUBLIC OF UGANDA</p> <p>IN THE SUPREME COURT OF UGANDA</p> <p>AT KAMPALA</p> <p>(CORAM: Dr.Kisaakye, Arach-Amoko JJ.S.C; Dr.Odoki, Okello, Kitumba, Ag. JJ.S.C).</p> <p>CIVIL APPEAL NO.06 OF 2012</p> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; BETWEEN</p> <p><img alt="Text Box: APPELLANT" src="file:///C:\Users\BMULIN~1\AppData\Local\Temp\msohtmlclip1\01\clip_image004.gif" style="float:left; height:23px; width:121px" />OMUNYOKOL AKOL JOHNSON…………………….</p> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; AND</p> <p><img alt="Text Box: RESPONDENT" src="file:///C:\Users\BMULIN~1\AppData\Local\Temp\msohtmlclip1\01\clip_image005.gif" style="float:left; height:23px; margin-bottom:23px; margin-top:0px; width:140px" />ATTORNEY GENERAL…………………………………</p> <p>(Appeal from the decision of the Court of Appeal at Kampala (Byamugisha, Kavuma, Nshimye JJ.A.) dated 29<sup>th</sup> May, 2012 in Civil Appeal No. 71 of 2010).</p> <p>JUDGMENT OF ARACH-AMOKO. JSC</p> <p>I have had the benefit of reading in draft the judgment prepared by my learned brother the Hon. Odoki Ag. JSC and I agree that the appeal succeeds partially. I also agree with the orders proposed by him.</p> <table cellpadding="0" cellspacing="0" style="height:39px"> <tbody> <tr> <td> <p>&nbsp;</p> </td> </tr> </tbody> </table> <div>&nbsp;</div> &nbsp; <p>&nbsp;</p> <p><img src="file:///C:\Users\BMULIN~1\AppData\Local\Temp\msohtmlclip1\01\clip_image006.gif" style="float:left; height:21px; margin-bottom:0px; margin-top:26px; width:65px" />Delivered at Kampala this. 8<sup>TH</sup> Day of&nbsp;&nbsp;&nbsp; APRIL 2015</p> <table cellpadding="0" cellspacing="0" style="height:52px"> <tbody> <tr> <td> <p>&nbsp;</p> </td> </tr> </tbody> </table> <div>&nbsp;</div> &nbsp; <p>&nbsp;</p> <p>M.S ARACH-AMOKO</p> <p>JUSTICE OF THE SUPREME COURT</p> <p>THE REPUBLIC OF UGANDA</p> <p>&nbsp;IN THE SUPREME COURT OF UGANDA AT Kampala</p> <p>&nbsp;</p> <p>(CORAM: KISAAKYE, ARACH-AMOKO, JJSC , ODOKI, OKELLO</p> <p>&nbsp;</p> <p>AND KITUMBA, AG. JJSC)</p> <p>CIVIL APPEAL NO. 06 OF 2012</p> <p>BETWEEN</p> <p>OMUNYOKOL AKOL JOHNSON.............................................. APPELLANT</p> <p>AND</p> <p>ATTORNEY GENERAL...................................................... RESPONDENT</p> <p>Appeal from the decision of the Court of Appeal at Kampala Byamugisha (RIP), Kavuma and Nshimye JJA) dated 29<sup>th</sup> May 2012 in Civil Appeal No. 71 of 2010</p> <p>JUDGEMENT OF OKELLO, AG. JSC</p> <p>I have had the benefit to read in draft the Judgment of my learned brother Justice Dr. Odoki, Ag. Justice of the Supreme Court and I agree with him that this Appeal should succeed partially. I also agree with the Orders he has proposed.</p> <p>Dated at Kampala 08 TH.......... day of APRIL 2015,</p> <p>G.M. OKELLO</p> <p>AG. JUSTICE OF THE SUPREME COURT</p> <p>THE REPUBLIC OF UGANDA</p> <p>IN THE SUPREME COURT OF UGANDA</p> <p>AT KAMPALA</p> <p>(CORAM: KISAAKYE, ARACH-AMOKO, JJSC, ODOKI, OKELLO, KITUMBA,</p> <p>AG.JJSC)</p> <p>CIVIL APPEAL NO. 06 OF 2012</p> <p>&nbsp;BETWEEN</p> <p>&nbsp;</p> <p>OMUNYOKOL AKOL JOHNSON:::::::::::::::::::::::::::::::::::: APPELLANT</p> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; AND</p> <p><img alt="Text Box: RESPONDENT" src="file:///C:\Users\BMULIN~1\AppData\Local\Temp\msohtmlclip1\01\clip_image007.gif" style="float:left; height:21px; margin-bottom:42px; margin-top:0px; width:153px" />ATTORNEY GENERAL;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;</p> <p>[Appeal from the decision of the Court of Appeal at Kampala (Byamngisha, Karuma and Nshimye JJA) dated 2St<sup>h</sup> May 3012 in Civil Appeal No. 71 of 20101</p> <p>JUDGMENT OF KITUMBA, AG.JSC.</p> <p>I have read in draft the judgment of my learned brother Justice Dr Odoki, I concur with it and the orders proposed therein.</p> </div> <p>&nbsp;</p> <div> <table cellpadding="0" cellspacing="0" style="height:34px"> <tbody> <tr> <td> <p>&nbsp;</p> </td> </tr> </tbody> </table> <div>&nbsp;</div> &nbsp; <p><img src="file:///C:\Users\BMULIN~1\AppData\Local\Temp\msohtmlclip1\01\clip_image008.gif" style="height:26px; width:820px" />&nbsp;</p> </div> <p>&nbsp;</p> <p>&nbsp;</p> <p><img src="file:///C:\Users\BMULIN~1\AppData\Local\Temp\msohtmlclip1\01\clip_image009.gif" style="float:left; height:19px; width:70px" /><img alt="Text Box: ?" src="file:///C:\Users\BMULIN~1\AppData\Local\Temp\msohtmlclip1\01\clip_image010.gif" style="float:left; height:21px; width:50px" />Dated at Kampala, this 8<sup>TH</sup> DAY OF APRIL 2015</p> <p>JUSTICE OF THE SUPREME COURT</p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-6b69353ccdf9f66525487335b6f26397"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/supreme-court/2015/4/supreme-court-2015-4.docx" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Mon, 27 Jul 2015 13:35:23 +0000 Anonymous 15657 at https://old.ulii.org Kengrow Industries Ltd. v Chandran (Civil Appeal No. 7 of 2001) [2002] UGSC 19 (22 April 2002); https://old.ulii.org/ug/judgment/supreme-court/2002/19 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/labour-and-employment-law" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Labour and Employment Law</a></li><li class="field-item odd"><a href="/tags/contract-employment-0" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Contract of Employment</a></li><li class="field-item even"><a href="/tags/termination-and-dismissal" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Termination and dismissal</a></li><li class="field-item odd"><a href="/tags/unlawful-or-unfair-dismissal" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Unlawful Or Unfair Dismissal</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p><strong>IN THE SUPREME COURT OF UGANDA </strong></p> <p><strong>AT MENGO</strong></p> <blockquote> <blockquote><br /> <br /> <em>(CORAM: ODOKI, CJ, TSEKOOKO, KAROKORA, MULENGA AND KENYEIHAMBA, JJSC.)</em></blockquote> </blockquote> <p>&nbsp;</p> <p><strong>CIVIL APPEAL NO. 7 OF 2001</strong></p> <p>&nbsp;</p> <p>&nbsp;</p> <p><strong>BETWEEN</strong></p> <p>KENGROW INDUSTRIES Ltd. ::::::::::::::::::::::::: :::::::::::::::::::::: APPELLANT</p> <p><br /> <strong>AND</strong></p> <p>C.C. CHANDRAN :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT</p> <p>&nbsp;</p> <p>[Appeal from the decision of the Court of Appeal (Okello, Engwau and Twinomujuni, JJ.A) at Kampala, dated 5<sup>th</sup> January, 2001 in Court of Appeal Civil Appeal No. 12 of 2000].</p> <p>&nbsp;</p> <p><strong><u>JUDGMENT OF TSEKOOKO. JSC:</u></strong></p> <p>This appeal arises from the judgment of the Court of Appeal which upheld the decision of the High Court (Onega, J.), awarding damages to C.C. Chandran, the present respondent, because the appellant company, Kengrow Industries Ltd., wrongfully dismissed him from employment. The respondent was the plaintiff while the company was the defendant in the High Court. Herein after I shall refer to the appellant company as "the company".</p> <p>The evidence adduced during the trial shows that by November 1996, the company had employed the respondent in India for 3 years. During that month, some of its directors, namely, M. M. Patel, A. A. Andani and S. R. Shah, asked the respondent to visit Uganda and explore the possibility of his working for the company in their soap and oil factory in Uganda. The company and the respondent appear to have agreed that during the exploratory period, in Uganda, the company would pay to the respondent a monthly salary of</p> <p>US$800 and also give him other benefits. The salary would be increased to $1050 (and not US 1150 as pleaded) if he accepted to continue working in Uganda and his family joined him. Pursuant to that agreement the respondent came to Uganda on 17/1/1997. His travel expenses were met by the company.</p> <p>The respondent worked for the company under those agreed terms from 17/1/97 up to March, 1997. The management of the company consisting of M. M. Patel, A. A. Andani, S. R. Shah, Ashok Shah, Vyas, Ashok Agrawal and Joshi and the respondent held a meeting in the Sailing Club, in Jinja, and further discussed and finalised his terms of employment. The first three members of management, as already mentioned, had also been involved in the discussion in India in November before the respondent came to Uganda. It appears that following the final discussion in Jinja, the management of the company appointed the respondent as the General Manager of the company in Uganda. The company secured for him a work permit for a period of two years ending on 25<sup>th</sup> June, 1999.</p> <p>According to the respondent, the terms and conditions of his employment, as agreed upon between him and management of the company, included employment for five years at a monthly salary of US$1050. The company was to pay for the air passage for the wife and two children of the respondent to come to Uganda to join him. He and his wife and children were also entitled to go on vacation every two years at the expense of the company. In Uganda, he was to be provided with a fully furnished house, the company paying rent, electricity and water charges. The company also agreed to pay the education expenses of his two children. In his evidence the respondent stated that because he had worked for the company in India before, and because of close relationship with the company, these terms were not reduced into writing. This assertion was neither challenged nor contradicted by any other evidence.</p> <p>&nbsp;</p> <p>All the conditions were fulfilled from the time the agreement was hammered out in March 1997 till the beginning of March 1998. On 27/2/1998 the respondent went to Nairobi on company's business trip. Upon his return on 3/3/1998, he found some body else seated in his office. According to evidence proffered by the company through Midesh Shah, DW1, the new man called Radhamohen was appointed Chief Executive Officer and was so appointed at the behest of a Mr. Kamal, a majority shareholder in the company. The respondent had not been notified about this appointment. The respondent was unilaterally located to another office nearby where he performed some few petty jobs such as authorizing payment of medical treatment bills in respect of company workers. He also registered resolutions of the company. During that month of March, 1998, the respondent continued reporting to the company offices. House rent had been paid up to the end of May, 1998. The respondent continued to use the telephone which had been installed by the company in his residence till October 1998. The company asked the post office to disconnect the telephone in December, 1998. The company had stopped paying rent, electricity and telephone charges and expenses for the education of children. The company paid the respondent's salary up to April, 1998.</p> <p>In the meantime, on 30/3/1998, the company held a party at Timtom Hotel, Jinja, where the respondent and his wife participated. During the party, Mr. Radhamohen, the new man, gave a speech. The respondent did not. The company did not give a dismissal order to the respondent but instead kept promising that the company would sort out his problems. According to the evidence of the respondent, the management of the company permitted the respondent to promote another company called Sankari Industries Ltd. which was incorporated on 22/4/1998. According the unchallenged evidence of the respondent, he was encouraged by M. M. Patel and A. A. Andani, two of the directors of the company, to promote that new company and run it on behalf of the company. Sankari Industires dealt in cotton seed cake, cotton seed, crude oil, maize, etc. Before that at some point in time the company stopped the respondent from continuing to report to office because he "was told not disturb the man on the chair". The respondent treated this as dismissal from the job. On the other hand Midesh Shah (DW1), contended that the respondent left on his own accord.</p> <p>The respondent instituted a suit in the High Court against the company for breach of contract of employment and claimed, among other things, for salary at the rate of US$1150 per month, house rent, food allowance, children's school fees from May, 1998. In its written statement of defence, the company denied that it breached the contract and averred that the respondent left his employment voluntarily at the end of March, 1998 and that he was paid whatever was due to him. The company also counter-claimed for certain reliefs from the respondent.</p> <p>At the beginning of the trial, five issues were framed, the first of which was whether the respondent was employed for five years and the second was, if so, what were the terms of the contract. The decisions of the Courts below on these two issues form the core of this appeal.</p> <p>On the basis of the undisputed fact that the company got a work permit for the respondent for two years, the learned trial judge held that the parties intended that the contract of employment would last for at least two years. He therefore fixed the contract to be of two years duration and held further that that contract was breached by the company. He awarded the respondent salary "arrears" from 1<sup>st</sup> May, 1998 up to October 1999. This period included four months which apparently took care of the period when the respondent was waiting for judgment. The judge ordered payment to the respondent in respect of the other unpaid allowances namely food allowance, housing allowance and school fees and air tickets for himself, wife and two children. The judge also awarded shs. 5m/= as general damages for breach of contract of employment. He dismissed the company's counterclaim. The company appealed to the Court of Appeal which upheld the substantive conclusions of the trial judge but the Court of Appeal reduced the amount of salary, set aside the award for housing allowance, increased the award of school fees and also increased general damages from shs.5,000,000/= to shs. 14m/=. The increase of general damages was based on erroneous calculations in my view, but that is not an issue in this appeal. The Court of Appeal also increased the rate of interest payable on the decretal amount from 6% awarded by the trial judge to 20%. From that decision the appellant has come to this Court. The Memorandum of Appeal to this Court contains five grounds. Dr. Joseph Byamugisha for the Appellant argued ground one separately, and in two batches but argued the rest of the grounds (2 to 4) together.</p> <p><strong>The first ground, as formulated, states that the Court of Appeal erred in law in failing to evaluate the evidence on record and subjecting it to fresh and exhaustive scrutiny hence coming to the erroneous conclusion that:</strong></p> <blockquote><strong>(a) The respondent was entitled to a salary of USD 1150 not USD 1050 per month.</strong><br /> <strong>(b) The respondent did not voluntarily leave the appellant's employment.</strong><br /> <strong>(c) The "full and final settlement" that the Respondent acknowledges receiving was only payment up to that period ending April, 1998.</strong><br /> <strong>(d) The party organized was not the respondent's farewell party because he did not make a speech and there were no invitation cards.</strong></blockquote> <blockquote> <table> <tbody> <tr> <td><strong>(e)</strong></td> <td><strong>There was breach of contract on the part of the appellant.</strong></td> </tr> </tbody> </table> </blockquote> <p>&nbsp;</p> <p>Submitting in respect of paragraph (a) of Ground 1, Dr. Byamugisha contended that the Court of Appeal erred when it held that the amount of salary was not an issue because at the trial, issue number 2 was about the terms of the contract of employment and salary is one of such terms of that contract. Mr. Muziransa, Counsel for the Respondent, contended generally that ground 1 contravened Rule 29(1) of the Rules of the Court which does not allow appeals to this Court on facts and that we should not evaluate evidence in this case. He cited <strong><u>Milly Masembe vs. Surgar Corpn. Ltd.</u> </strong>Sup. Court Civ. Appeal 1 of 2000 (unreported). Counsel, who had initially maintained that salary for the respondent had been fixed at US$ 1150, relented when his attention was drawn to the contents of the ledger sheet which showed that in fact the respondent had been receiving US$ 1050 as salary and for which he had signed. Mr. Muziransa therefore accepted US$ 1050 as the salary agreed upon.</p> <p>Let me dispose of Mr. Muziransa contention that we are barred from re-evaluation of evidence because of the provisions of Rule 29(1) of the Rules of the Court. Sub-rule (1) of Rule 29 really bars this Court from receiving additional evidence in cases of second appeals but does not bar this Court from re-evaluation of evidence.</p> <p>It is my view, in any case, that in an appeal where a complaint is based on mixed law and fact, even if we are not bound to re-evaluate the evidence, in order to decide the complaint concerned, in the process of considering the complaint we evaluate evidence. This is especially so in view of the unrestricted right of appeal conferred on appellants in civil appeals by S.7 of the Judicature Statute, 1996.</p> <p>Now, issues are normally framed on the basis of pleadings and those issues are eventually determined on the basis of evidence. In paragraph 5(ii) of the plaint, the respondent had pleaded that the agreed monthly salary was US$ 1150. In reply in its written statement of defence, the company denied this. Therefore at the trial the terms of the contract became an issue and that issue was framed as issue No. 2. In relation to that issue, the respondent testified about his salary and during cross-examination he was shown the ledger card (exh.D1) which indicated that the company was paying him salary at the rate of US$ 1050 monthly and that the respondent signed at the end of the ledger sheet where it was stated that:</p> <p><em>"That account of salary and other expenses stated above are correct for full and final settlement."</em></p> <p>In his evidence the respondent testified that the amount recorded on the statement was:</p> <p>&nbsp;</p> <p><em>"For salary and other benefits they gave me from October, 1997 to March</em></p> <p><em>1998".</em></p> <p>In these circumstances, therefore, Mr. Muziransa quite properly conceded that the agreed salary was in fact US$ 1050. I think therefore that the trial judge and the Court of Appeal misdirected themselves on the pleadings and on the evidence when they held that the salary was not in issue. I think that ground 1(a) of the memorandum of appeal should succeed.</p> <p>Dr. Byamugisha argued paragraphs (b) to (e) of ground (1) together and first posed three questions as follows:</p> <blockquote><strong>(i)</strong> Did the Respondent leave the service of the company voluntarily?<br /> <strong>(ii)</strong> Was the contract of service terminated? and<br /> <strong>(iii)</strong> Did the contract continue up to the date of judgment?</blockquote> <p>&nbsp;</p> <p>These questions are different aspects of the same issue. The contention of Dr. Byamugisha is that the respondent left the company voluntarily and thereafter promoted and set up another company called Sankari Industries Ltd. He contended that the Courts below erred when they held that the respondent remained in the employment of the company after the end of March, 1998 whereas in his evidence in Court the respondent claimed that he was dismissed. Counsel argued that the party held on 30/3/1998 and salary payment marked the end of the respondent's employment. In Counsel's view, the trial Court should have held that the contract was terminated at the end of April 1998. Counsel also argued that since the respondent had stopped to be an employee of the company, the Courts below should have awarded damages, and not salary arrears, to the respondent. In reply, on ground 1(b) to (e), Mr. Muziransa submitted that the company did not adduce evidence proving that the respondent voluntarily left the company service. In his view the evidence of Medish Shah (DW1) supports the view that the Respondent remained an employee of the company. On the contents of the ledger card account (exh D2), Mr. Muziransa supported the finding of the trial judge that the card reflects payment for the period worked as at the end of March, 1998. He further contended that payment of salary for April 1998 was normal salary payment and not payment in lieu of notice. I think that on the last point Mr. Muziransa failed to appreciate the evidence of Mr. Midesh on the purpose for the April payment. Mr. Midesh said in evidence that the pay was in lieu of one month's leave. In reference to the document (exh.D2), and the duration of the contract, learned counsel supported the finding by the High Court, which finding was upheld by the Court of Appeal, that the contract was to last at least two years because under the provisions of the Immigration Act and Regulations made thereunder, permits for expatriates are given to cover the employment period, and as in this case, the respondent was such expatriate employee of the company, the work permit for two years meant that the contract would last two years.</p> <p>The learned trial judge dealt with these matters this way:-</p> <blockquote><br /> <em>The question then is was there any breach of contract and if so by whom? There is evidence on record to show that on 3/3/98 when the plaintiff returned from Nairobi where he had been on a business trip on behalf of the defendant he found someone else seated in his office. When he inquired he was told to be patient and that matters would be sorted out. According to the defendant a new employee had been brought to occupy a new post of Chief Executive. The defendant says the plaintiff was relocated to another office from where he continued to work. But the plaintiff clearly tells court that from 3/3/98 when someone was put in his office he kept reporting for work but to no avail till he was eventually told to stop disturbing. The company then processed and paid him all that was due to him up to the end of March 1998 and even paid him for the ... month of April 1998. According to the defendant the plaintiff voluntarily left the defendant's employment at the end of March 1998. Yet they allowed him to continue occupying the company house up to May 1998 and did not ask post office to disconnect the telephone till December 1998. Here I must say that considering all that happened the plaintiff did not voluntarily leave the defendant. If he was to voluntarily leave the defendant and therefore breach the contract of employment the defendant would not have felt obliged to give him one extra month's salary in the April 1998. Secondly the defendant would not have left him to continue staying in their house with all the facilities for electricity, water and telephone. The plaintiff has not exaggerated any of the terms of the contract and if indeed he was not stopped from working when he returned from Nairobi there would have been no reason for him to leave the job he had come for Counsel have talked about the pay the plaintiff received "in full and final settlement". On this I tend to agree with the plaintiff's explanation that that was payment in full and final settlement for the period he was paid for. There is nothing on record to show that the plaintiff told the defendant he wanted to leave their job and there is also nothing on record to show that the defendant formally terminated the plaintiffs services and gave him due notice. In my view the plaintiff was left in the dark and he was entitled to and was right to receive that payment which was due to him. That should not be used as estoppel to bar him from any further claims particularly as he was left in the dark hoping hat the matter would be sorted out and he would get back to his employment. Further more the extra pay for the month of April cannot be said to have been made in lieu of notice when that was not brought to the attention of the plaintiff. The plaintiff was entitled to be informed if that was to be payment in lieu of notice and that would have been indicated in the final account just like payment for the other items have been indicated. To me it looks like the plaintiff was paid for the extra month and left in the company's house with all the facilities because the defendant knew they had rendered the plaintiff redundant and wanted to comfort him as he waited for his fate. In this way I find that the defendant was all in all in breach of the contract between themselves and the plaintiff who up to now is waiting to hear from the defendants about his fate".</em></blockquote> <p>&nbsp;</p> <p>The judge accepted the respondent's evidence that some of the directors of the company are the ones who encouraged him to set up Sankari Industries Ltd. which he managed on their behalf. The learned judge did not believe the company's evidence that the company organized a farewell party for the respondent.</p> <p>In his lead judgment Twinomujuni, JA, dealt with the issue of duration of contract in these words:</p> <p>&nbsp;</p> <p><em>"Whether the contract of employment terminated in March, 1998 depends on whether the version of the appellant that the respondent voluntary accepted the termination of his contract. On the evidence on record, the learned trial judge rejected that version and I do not see how that finding can be faulted. There is overwhelming evidence that the respondent <u>was thrown out of office without any notice at all and was never told of his fate up to the time of judgment</u> in court which was delivered in his favour. I agree with this finding and hold that the respondent contract of employment was not terminated in March, 1998.</em></p> <p><em>Since the contract was never terminated during its life time, it must be deemed to have come to the end when its duration expired There is no serious dispute on either side against the finding of the trial court that the contract was to last <strong>for "at least" </strong>two years ending on 26/6/1999-------- I</em> <em>would hold that the respondent's contract of employment came to an end on 25/6/1999".</em></p> <p>Dr. Byamugisha criticised the conclusions contained in the above passage.</p> <p>The two passages, the first from the judgment of the trial judge and the second from the lead judgment of Twinomujuni, JA, answer the three questions posed by Dr. Byamugisha. The passage which I have underlined does answer the first question that the respondent did not leave employment voluntarily. The evidence of Midesh Shah (DW1) shows that during the temporary absence of the respondent, another person took over his office. Upon his return, the respondent was made to do petty jobs for the company until he was told not to disturb the new man. This was not challenged by any other evidence. Further, according to the respondent, he was told that the company would look into his problem which means the company just left the respondent in suspense but was still responsible for him. If the respondent had left voluntarily why did the company not have company telephone disconnected immediately he stopped working for the company? Apparently, the respondent used the company telephone in his residence till October, 1998. Indeed, according to Midesh Shah (DW1) the company only caused the telephone to be disconnected in December, 1998, a period of nine months after the respondent is alleged to have abandoned work.</p> <p>On the duration of the contract, the trial judge had before him only the unchallenged and uncontradicted version of the respondent that the contract was to last five years. Midesh Shah (DW1), the key witness for the company, did not know the life of the contract. Curiously and for no known reason or explanation, none of the members of the management of the company who negotiated the terms of employment for the respondent testified in court. In that regard except for the work permit, there was therefore only the respondent's unchallenged evidence. On the authority of <u>E.A. Airways vs Knight</u> (1975) EA 165; <u>Kyobe vs. E.A. Airway (1972) EA 403</u> and <u>G. Ushillan: vs. Kampala Phamarceutical Ltd.</u> SC Civil Appeal No.6 of 1998 reported in (1999) SCD, Page 84, there would have been nothing to prevent the judge from holding that the contract was for 5 years. The learned trial judge should have accepted the evidence of the respondent in the absence of any other to the contrary.</p> <p>Be that as it may, I think that the judge acted judicially when he read into the duration of the work permit as an indication on the part of the company and the respondent that the respondent would be employed for at least two years. In my view the Court of Appeal was justified in upholding the decision of the trial court on the duration of the contract. Indeed, I also accept the unchallenged evidence of the respondent that he was permitted by some of the members of the management of the company to run Sankari Industries Ltd. on behalf of the company. The contrary view by Mr. Midesh is unconvincing. Mr. Midesh was just a Chief Accountant, an employee of the company. He was not one of the members of the management. He did not give facts why he thinks that Sankari Industries Ltd. belongs to the respondent.</p> <p>I am not persuaded that the party held in Timton Hotel was a farewell party for the respondent. It is more reasonable to say that the party was a welcome party for the new Chief Executive Officer since he is the only one who made a speech. I am not satisfied that the respondent participated in the party as the guest of honour leaving the company rather than as any other member of staff. Therefore I don't regard the holding of the party as marking the end of the contract of the respondent.</p> <p>As regards salary payment, if payment in April, 1998, be regarded as payment in lieu of notice, the vouchers Exh.D2 and Exh.D3 do not describe it as the end of contract payment. In fact Midesh said at the start of cross-examination that when he</p> <p>&nbsp;</p> <p><strong>"Paid the respondent the contract had not ended. The money paid was to cover the period up to 31/3/1998".</strong></p> <p>Half way through his evidence, the same Midesh who did not know how long the employment contract of the respondent was to last, claimed that the payment effected on the 11<sup>th</sup> April and 18<sup>th</sup> April were payments in lieu of leave. He said:</p> <p><br /> <strong>"We paid him 1 month in lieu of leave".</strong></p> <p>&nbsp;</p> <p>It appears that for each payment there is endorsed the words "in full and final settlement". These words appear on the ledger card exh.D1. They also appear on other documents (exh.D2 and D3) for payment for the month of April, 1998. This gives me the impression that the words "full and final settlement" are used indiscriminately. In any case Midesh, as a witness, does not appear to me to have been consistent in his testimony. This is because earlier in his testimony, the witness had claimed that the respondent:</p> <p>&nbsp;</p> <p><strong>"Was not given air ticket because he did not want to go to India. Besides we would have given him if he had completed his contract. In this case he did not complete hiscontract."</strong></p> <p>This is evidence of a witness who did not know the terms and duration of the contract and yet he turned round and claimed that the respondent was denied air ticket because he did not complete his contract. This witness could not say all this because he did not know the terms of the contract which was not in writing. Members of the management of the company should have testified about this.</p> <p>To prove the inconsistency of Midesh, during cross-examination Midesh turned round and stated: -</p> <p><strong>"We paid only whatever was due to him. We are willing to give him Air tickets with his family if he wants. We offered him so many times. He is not entitled to his full benefits to date. Since the payment we made Mr Chandran has never come to me to ask for further payments."</strong></p> <p>Clearly, this witness was either confused or did not know what he was talking about and therefore in my view his opinions or evidence cannot form a basis for the view that the contract of the respondent ended on 31/3/1998; nor that the respondent left the company employment voluntarily. Nor, indeed, can I rely on this witness for the view that the party which was held on 30/3/1998 was a farewell party for the respondent.<br /> &nbsp;</p> <p>In the result paragraphs (b) to (e) of ground 1 ought to fail.</p> <p>Dr. Byamugisha made an alternative submission that we should hold that if the respondent did not leave the job voluntarily, he was sacked at the end of March, 1998. Of course the company as employers, like any other employer, had an inherent right to terminate the services of the respondent but only in a lawful way. The evidence available does not suggest that the respondent was sacked at the end of March, 1998. The company simply allowed the situation to drift on unresolved. The company first denied him office and eventually he considered himself to have been dismissed because he did not have anything to do.</p> <p>Next, Dr. Byamugisha argued grounds 2, 3 and 4 together. These grounds are framed as follows: -</p> <blockquote> <blockquote><strong>2. The Court of Appeal erred in law in awarding damages for breach of contract when interest was awarded.</strong><br /> <strong>3. The Court of appeal erred in law in increasing damages to shs.14,000,000/= from shs.5,000,000/= when there was no cross appeal.</strong><br /> <strong>4. The Court of Appeal erred in law in reviewing the interest from 6% to 20% without any cross appeal having been preferred by the Respondent nor any prayer having been made to the Court of Appeal by counsel for the Respondent to that effect and in ignoring that the amount was evaluated in US Dollars.</strong></blockquote> </blockquote> <p>&nbsp;</p> <p>Dr. Byamugisha for the company while arguing ground 2 cited our decision in <strong>G. Ushillani vs. Kampala Pharmaceuticals </strong>- Sup. Ct. Civil Appeal 6 of 1998 reported at page 84 of vol (1999), SC.D, Civil, for the view that the contract between the company and the respondent is of its own kind in that the contract did not contain fixed terms of employment nor was it the type where the respondent was employed for a fixed period without terms of employment being spelt out. He therefore contended that the trial court erred when it held that the contract between the company and the respondent was expected to last at least two years. Learned counsel argued that because of the provisions of subsections (1) and (3) of S 24 of the Employment Decree, 1975, the respondent should have been given 15 days notice of termination of service but the company paid him salary for one month instead of giving him such notice.</p> <p>Although Mr. Muziransi suggested that ground 2 had been abandoned, he in fact replied to Dr. Byamugisha's argument because learned counsel supported the decision of the two courts below to the effect that the contract was to last at least two years. He contended that there was an oral contract and that under the provisions of the Immigration Act and the Immigration Rules, work permits are given to cover a period of employment. That the respondent was employed as an expatriate from India and the company secured him a work permit for 2 years. Counsel also supported the awards of damages.</p> <p>I have already considered some aspects of this ground. Although ground two complains about award of damages by the Court of Appeal, counsel's criticisms were concentrated on the trial court findings. I find ground 2 confusing. The confusion was increased because of the approach adopted by arguing that ground. I will consider the ground on the basis that the complaint is against the award of damages by the trial judge which damages were principally upheld by the Court of Appeal.</p> <p>The various people who the respondent named as members of the management of the company are knowledgeable, or ought to have been knowledgeable, about the terms upon which the respondent was employed. As I have already stated, none of them gave evidence at the trial. No explanation was given why. It is obvious that Mr. Midesh who testified as a key witness for the company did not know the terms of employment upon which the respondent was employed. Mr. Tuyiringire who represented the company at the trial merely submitted, from the bar, that the respondent did not have a contract of five years duration. That clearly was not evidence.</p> <p>It is only the respondent who testified about the contract and its terms of his employment. In these circumstances both the trial judge and Court of Appeal had no alternative but to accept the version of the contract terms as given by the respondent. Going by that version, the trial judge considered the submissions of both sides before he decided that the contract was to last two years. The Court of Appeal considered the evidence, the judgment of the trial judge and the address by both counsel before it (Court of Appeal) accepted the conclusions of the trial judge. It was up to the company to have specifically spelt out the terms of the respondent in writing. They failed to do so. So they are bound.</p> <p>Dr. Byamugisha contended that the present case has no similarities to the <strong>Ushillani case </strong>(supra) and therefore he submitted that the respondent in this case was entitled to only a notice for 15 days under the provisions of S.24 of the Employment Decree and not to damages. The lead judgment in <strong>Ushillani case </strong>was that of my brother Mulenga, JSC. After discussing the implication of S.16 of the Employment Decree, in so far as the section relates to the period for which the contract was binding, the learned Justice of the Supreme Court stated this:-</p> <blockquote><br /> <em>"Where a contract of employment is repudiated by the employer through dismissal of an employee, even in a case of employment for a fixed period, the employee cannot insist on continuing to be provided with work and payment. If the dismissal, be it express, implied or even constructive, is unequivocal, then the only remedy available to the wronged employee is damages. The issue that remains to be decided therefore is the measure of damages, to which I now turn.</em><br /> <br /> <em>In deciding that issue, the Court of Appeal appreciated that the employment in the instant case, was for a fixed period. The court made distinction between a contract which makes no provision for termination prior to expiry of the fixed period, and one in which there is a provision enabling either party to terminate the employment. The learned Justices stated the law to be that in the event of wrongful termination by the employer, the employee <u>in the former contract would be entitled to recover as damages, the equivalent of remuneration for the balance of the contract period, whereas in the latter case the wronged employee would be entitled to recover as damages, the equivalent of remuneration for th</u>e <u>period stipulated in the contact for notice</u> I respectfully agree that this is the correct statement of the law. I would add that it is premised on the principle of restitutio in integrum. Damages are intended to restore the wronged party into the position he would have been in if there had been no breach of contract. Thus, in the case of employment for a fixed period which is not terminable, if there is no wrongful termination, the employee would serve the full period and receive the full remuneration for it. And in the case of the contract terminable on notice, if the termination provision is complied with, the employee would serve the stipulated notice period and receive remuneration for that period, or would be paid in lieu of the notice". (underlining supplied).</em></blockquote> <p>&nbsp;</p> <p>I think that above underlined passage covers this appeal. In my view both the trial judge and the Court of Appeal applied this principle when they awarded damages to the respondent and I have not been persuaded that, apart from error in calculation, the two courts erred in their respective conclusions.</p> <p>Moreover, I do not accept the contention by Dr. Byamugisha that the respondent was given pay for one month in lieu of notice. The evidence of Midesh (DW1) is that the one-month pay was in lieu of leave and this appears to be the finding of the trial judge. Therefore the respondent was not paid anything instead of notice. In any case there is no evidence to show the notice which could have been given before termination.</p> <p>The complaints under this head were summarised at page 59 by Twinomujuni, JA, as follows:-</p> <blockquote> <table> <tbody> <tr> <td>(a)</td> <td>Arrears of salary for 14 months @ $ 1150 = $ 16,100/=.</td> </tr> <tr> <td>(b)</td> <td>No rent award.</td> </tr> <tr> <td>(c)</td> <td>Food Allowance shs. 167,000/= for 15 months = 2,505,000/=.</td> </tr> <tr> <td>(d)</td> <td>Fees of 120,000/= for three terms for two children = 720,000/=.</td> </tr> </tbody> </table> </blockquote> <blockquote>(e) Air ticket for respondent because that of wife and children had been provided.</blockquote> <p>As Dr. Byamugisha himself admitted that the contract under which the respondent served was peculiar in its own way. The respondent was specifically brought from India to work for the company under the conditions and terms found by the trial judge and upheld by the Court of Appeal. Even if it is accepted that the company dismissed the respondent at the end of March, 1998 pay of one month in the circumstances of this case would be hopelessly unjust to a man who had been uprooted with his entire family from India onto Uganda soil. He was kept guessing as he was told that his problem would be solved. In such circumstances he would be entitled to a very reasonable notice which in my view could have been not less than 6 months in addition to the rest of the benefits. This would enable him to settle down and look for suitable alternative employment. In case of claim for damages for breach of contract of employment the measure of damages must have regard to the time which might reasonably be expected to lapse before he would, in the ordinary course of things, be likely to obtain similar employment to that which he lost by his wrongful dismissal. Having fixed that period he should be given a sufficient sum to reimburse him for the loss he sustained, calculated on the basis of the emoluments he was enjoying at the time of such loss: <u>Witu vs Peake</u> (1913/14) 5 EALR 17.</p> <p>Moreover, it is trite that in an action for wrongful dismissal, once a plaintiff has proved that he was dismissed from his employment with notice, or indeed without the notice provided for in his contract of employment, the onus is on the defendant to establish misconduct which justified the dismissal: <u>Bosa vs High Commission</u> (1950) 17 EACA 42. So drastic a step of dismissal by an employer is normally not justified unless the conduct of the employee has shown a deliberate intention to disregard the essential requirements of a contract of service: <u>Laws vs London Chronicle (1959) 2 ALLER 285 and (Pepper vs. Webb)</u> 2 ALLER 216.</p> <p>It is also trite law that a person who is wrongfully dismissed should mitigate his damages by obtaining alternative employment. By agreeing to promote Kantari <u>Industries Ltd</u>., on behalf of company, the Respondent attempted, to mitigate his damages and this is in effect what he said and the trial judge accepted this when he said that the respondent had to do something to survive.</p> <p>In the circumstances of this case my view is that the respondent is entitled to payment for the residue of the contract which is 12 months from 1/5/1998 to 30/4/1999 = $12600. The extra four months added by the Courts below is not justified.</p> <p>This ground ought to fail in part in that I would award the respondent salary for the residue of the contract which is 12 months at the rate of $1050 = $12600. The rest of the items except for education expenses are to be reduced proportionately.</p> <p>On ground three of the Memorandum of Appeal, I agree that the respondent did not cross appeal against the award to him of shs 5m/- as general damages. And when Mr. Muziransa asked the Court of Appeal to increase these damages, Mr. Mukasa - Sebugenyi Counsel for the company justifiably resisted this on grounds, inter alia, that there was no cross appeal to justify this. Mr. Muziransa suggests that this was a question of discretion. In my view no such discretion exists. Moreover by virtue of Rules 90 (1) of the Court of Appeal Rules, 1996,</p> <blockquote><br /> <strong>"A respondent who desires to contend at the hearing of the appeal in the Court, that the decision of the High Court or any part of it should be varied or reversed, either in any event or on the appeal being allowed in whole or in part, shall give notice to that effect, specifying the grounds of his or her contention and the nature of the order which he or she proposes to ask the Court to make, or to make in that event as the case may be".</strong></blockquote> <p>Clearly, and with great respect, the Court of Appeal should not have entertained arguments about increase of general damages as this Rule had not been complied with. It is not correct to say, as did the Court below, say, that the evaluation of the evidence by itself entitled that court to increase damages. It follows that the increase ought to be set aside which increase in any case should not, in view of the award of salary, have been increased. With respect I think that the basis upon which the increase was made is not supported by authority. So ground three should succeed.</p> <p>The fourth ground argued is about increased rate of interest from 6% to 20%. Dr. Byamugisha made arguments similar to those advanced when he argued ground 3 on damages and contended that there was no cross-appeal in the Court of Appeal to the effect that interest was low. Nor did the respondent produce evidence regarding what interest should be awarded so as to justify interference with the award made by the trial judge. Mr. Muziransa supported the decision of the Court of Appeal contending that interest was a form of compensation.</p> <p>Clearly, the order of the Court of Appeal failed to take Rule 90 (supra) into account. I agree that where a trial judge exercises discretion to award interest on damages, the appellate court ought not to interfere with that award unless it is satisfied on evidence which not only proves justification for interference but also evidence which proves a relevant rate which ought to have been given. In this case the Court of Appeal referred to <strong>"ruling Commercial rate". </strong>Unfortunately no evidence was produced to show the "ruling commercial rate" which would justify the conclusion of the Court of Appeal. I would therefore allow this ground and restore the rate given by the trial judge.</p> <p>Ground five was not argued. So it should fail.</p> <p>In the result and for the foregoing reasons this appeal should succeed substantially.</p> <p>&nbsp;</p> <blockquote>1. I would order that the respondent be paid US $ 12600 being salary for the balance of the contract of employment, namely twelve months.<br /> 2. I would award food allowance for 12 months x shs. 167,000/= per month equals shs.2,004,000/=.</blockquote> <blockquote> <table> <tbody> <tr> <td>3.</td> <td>I would uphold the award for education expenses at shs.720,000/=.</td> </tr> </tbody> </table> </blockquote> <blockquote>4. I would set aside the order of Court of Appeal increasing damages from shs. 5m/= to 14 m/=. Instead I would restore the order of the High Court awarding shs. 5m/= as damages.<br /> 5. Also I would set aside the order of the Court of Appeal increasing the rate of interest from 6% to 20% and I would restore the order of the trial judge, namely the interest be at the rate of 6%. Per annum.<br /> 6. I would order that the respondent get half of his costs in the Court of Appeal.</blockquote> <p>&nbsp;</p> <p>In view of the orders I have proposed above which show that the company has got substantial success, I would order that the respondent be paid half his costs here and in the Court of Appeal. I would order that he be paid his full cost in the High Court.<br /> &nbsp;</p> <p><strong><u>JUDGMENT OF ODOKI, CJ</u>.</strong></p> <p>&nbsp;</p> <p>I have had the benefit of reading in draft the judgment of Tsekooko JSC and I agree with it.<br /> &nbsp;</p> <p>The two lower courts were justified in coming to the conclusion that the contract period for the respondent's employment was at least two years. The Courts were also entitled to hold that the respondent was dismissed before his contract period expired, and that the dismissal was unlawful since there were no grounds advanced to justify the dismissal. The contention by the appellant that the respondent voluntarily abandoned his duties was not supported by evidence, but on the contrary the conduct of the appellant showed that the respondent's services were not required as he was in effect replaced by a new Chief Executive Officer.</p> <p>&nbsp;</p> <p>Since the respondent was unlawfully dismissed, there was a breach of his contract of employment giving rise to a claim for damages. I agree with Tsekooko JSC that the respondent should have been paid for the remaining term of his contract all the remuneration due to him, including salary and benefits. The respondent is also entitled to general damages for breach of contract. I agree with the awards of damages and the amounts proposed by Tsekooko JSC.<br /> &nbsp;</p> <p>I agree that Court of Appeal erred in increasing the award of damages and the rate of interest when there was no cross-appeal. The Court was not justified in so acting on the grounds that no reasons had been given by the trial Court to award the amount of damages he awarded or that the plaint had prayed for a higher rate of interest.<br /> <br /> &nbsp;</p> <p>I concur in the orders as to costs, as proposed by Tsekooko JSC.<br /> &nbsp;</p> <p>As other members of the Court agree with the judgment and orders proposed by Tsekooko JSC, there will be an order in the terms proposed by Tsekooko</p> <p>JSC.<br /> &nbsp;</p> <p><strong><u>JUDGMENT OF KAROKORA, JSC.</u></strong></p> <p>I have had the benefit of reading in draft the judgment prepared by Tsekooko, JSC and I agree with him that the appeal should substantially succeed. I would adopt the orders he has proposed.<br /> &nbsp;</p> <p>In the result, I find that I cannot usefully add anything.<br /> <br /> &nbsp;</p> <p><strong><u>JUDGMENT OF MULENGA JSC</u></strong></p> <p>I had advantage of reading in draft, the judgment of Tsekooko JSC. I agree that the appeal ought to succeed in part, and I concur with the orders he has proposed.</p> <p><br /> <br /> &nbsp;</p> <p><strong><u>JUDGMENT OF KANYEIHAMBA, J.S.C.</u></strong></p> <p>I have read in draft, the judgment of my learned brother. Tsekooko, J.S.C, and I agree with him that this Appeal should partly succeed and I agree with the orders he has proposed.<br /> &nbsp;</p> <p><strong><em>Delivered at Mengo this 22<sup>nd</sup> Day of April 2002</em></strong></p> <p>&nbsp;</p> <p>&nbsp;</p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-702ccd8e895e5b3c6001c6271bc8fdcf"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/supreme-court/2002/19/supreme-court-2002-19.rtf" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a>, <a href="https://old.ulii.org/system/files/judgment/supreme-court-uganda/2002/19/supreme-court-uganda-2002-19.pdf" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"><iframe class="pdf" webkitallowfullscreen="" mozallowfullscreen="" allowfullscreen="" frameborder="no" width="100%" height="600px" src="/sites/all/libraries/pdf.js/web/viewer.html?file=https%3A%2F%2Fold.ulii.org%2Fsystem%2Ffiles%2Fjudgment%2Fsupreme-court-uganda%2F2002%2F19%2Fsupreme-court-uganda-2002-19.pdf" data-src="https://old.ulii.org/system/files/judgment/supreme-court-uganda/2002/19/supreme-court-uganda-2002-19.pdf">https://old.ulii.org/system/files/judgment/supreme-court-uganda/2002/19/supreme-court-uganda-2002-19.pdf</iframe> </div> </div> </div> </div> </div> Mon, 27 Jul 2015 13:34:34 +0000 Anonymous 15534 at https://old.ulii.org David Muhenda & 3 oers v Margret Kamuje ((Civil Appeal No.9 Of 1999)) [2000] UGSC 7 (17 October 2000); https://old.ulii.org/ug/judgment/supreme-court-uganda/2000/7-1 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/cl" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">CL</a></li><li class="field-item odd"><a href="/tags/unlawful-or-unfair-dismissal" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Unlawful Or Unfair Dismissal</a></li><li class="field-item even"><a href="/tags/quantum-damages" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Quantum of Damages</a></li><li class="field-item odd"><a href="/tags/aggravated-damages" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Aggravated Damages</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"> <font size=3><center></font><font size=3><b>THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA </b></font><font size=3></font><font size=3><b>AT MENGO <br> (CORAM: ODER-JSC, MULENGA - J</b></font><font size=3></font><font size=3><b>SC, MUKASA-KIKONYOGO; JSC)</b></font><font size=3></font><font size=3><b> </b></font><font size=3></font><font size=3><b>CIVIL</b></font><font size=3></font><font size=3><b> APPEAL NO.9 OF 1999 </b></font><font size=3></font><font size=3><b> </b></font><font size=3></font><font size=3><b>BETWEEN <br> </b></font><font size=3></font><font size=3><b><br> </b></font><font size=3></font></center> <b>1. DAVID MUH</b><b>ENDA <br> 2. ADMINISTRATOR OF ESTATE</b><b> OF <br> PERSIS OKAO </b><b>DAVID MUHENDA::::::::::::::::::::::::::::::::::</b><b>::::::::::::::::::::::::</b><b>::::::::::</b><b>APPELLANTS <br> 3. DAVID NSUBUGA <br> </b><b>4.</b><b><i> </i></b><b>JAMES MUGENYI </b><b><br> </b><b><br> </b><b> </b><b>AND <br> MARGARET KAMUJE </b><b>:::::::::::::::::::::::::::::::::::::::::</b><b>::::::::::</b><b>RESPONDENT <br> </b><b><i>(Appeal from the decision of the </i></b><b><i>High Court at Fort </i></b><b><i>Portal (Raja</i></b><b><i>singh</i></b><b><i>am QC) dated 12-7-95, in H. C. </i></b><b><i>Civil Appeal No</i></b><i>. </i><b><i>DR. MPF 1 of 1994) </i></b><b><i><br> </i></b><b><i><br> </i></b><b><u>JUDGMENT OF ODER JSC </u></b><b><br> </b>This is a second appeal. It is brought by the four appellants against the appellate decision of the High Court at Fort Portal (Rajasingham, J)<i> </i>on 12-7- 95 given in favour of the respondent. <br> The case has a chequered history, made worse by confusions arising from the Courts below due either to inaccurate or missing parts of the record of proceedings. After spending a lot of time in my efforts to unravel it, the picture which emerges is still a hazy one.<br> Be that as it may, a brief background to the appeal is this. Due to a land dispute between them, the respondent sued her father, Israel Karasuma, in a Grade II <br> Magistrate&rsquo;s Court at Nyaburara in Civil Suit No. 48 of 1976.<br> The trial Magistrate Grade II accepted the respondent&rsquo;s evidence, and rejected the evidence for the defendant. <br> On the basis of the three issues framed at the trial of the suit the trial Magistrate found for the respondent, inter alia, as follows in his judgment dated 2-7-76: <br> <b>(i) The disputed kibanja was given to the respondent by Absolomu Nyabugabwa. She was therefore, the owner thereof. </b><b><br> </b><b>(ii) The disputed kibanja did not revert to Absolomu Nyabugabwa&rsquo;s heir, Albert Jawa (DW2) on Absolomu&rsquo;s death, contrary to Albert Jawa&rsquo;s allegation in his testimony. </b><b><br> </b><b>(iii)</b> <b>The defendant did not have a better title to the kibanja as he had his own</b> <b>kibanja adjacent to the one in dispute. </b><b><br> </b>The trial Magistrate did not visit the locus in quo. He<b> </b>apparently relied on the description of the boundary of<b> </b>the suit land as given by the respondent in her testimony.<br> The defendant in the suit appealed to the Chief Magistrate Fort Portal, against the judgment of the trial Magistrate, but then later withdrew the appeal. <br> <div align=left> Thereafter the respondent failed to obtain vacant possession of the kibanja judged in her favour, because certain persons unknown to her were in occupation of the land. Eventually an application made by her for execution of the decree in the suit was heard on 14-7-93, by Magistrate Grade I, Moses Mutazindwa Katorogo, who reserved his ruling on the application to 27- 7-93. Before the ruling was delivered on that day, however, the respondent&rsquo;s Counsel in those proceedings, Mr. Nyamutale, was served with an application by which some of the persons occupying the suit property were objecting to execution of the decree, under Order 19 rules 19 and 20 of the Civil Procedure Rules. <br> According to the Notice of Motion by which the objection application was made there were six objectors/applicants namely - (1) Persis Okao, (2) David Nsubuga, (3) James Sabiti Kachope, (4) David Muhenda, (5) Mr. Nyamutale and (6) Mr. Mugenyi. The application was supported by only one affidavit, deponed by David Muhenda, the 4<sup>th</sup> objector. In the end the application was decided on the basis of this affidavit alone. There was no affidavit in reply from the respondent&rsquo;s side.<br> </div> Apart from records of a series of adjournments for purposes of visiting the locus in quo, the record of the objection proceedings does not show that submissions were made either in support of, or in opposition to, the objection application. <br> The learned Grade I Magistrate visited the locus in quo, but the record of proceedings does not indicate what transpired there. He also drew up a sketch plan of the locus, but it was subsequently lost and all efforts to trace it were fruitless. <br> In his ruling on the objection application, the learned Grade I Magistrate:<br> <b>1) Allowed the objection application of the 1st, 2nd, 3rd and 4th objectors. <br> 2) Dismissed the objection application of the 5th and 6th objectors. <br> 3) Granted the respondent&rsquo;s application for execution of the decree in the original suit against the 5th and 6th objectors, and issued a warrant of vacant possession against them. </b><b><br> </b>In his ruling, the learned Grade I Magistrate said that the suit land was well defined and yet he proceeded to uphold the objections of four of the objectors and refused the objections of two of the objectors.<br> Thereafter, it appears that all the six objectors in question appealed to the High Court at Fort Portal in Civil Appeal No. DR MFP 1/94. The same appeal file also bears the number 52 of 1994. This is only one of the many confusions in this record of appeal. The only Memorandum of Appeal available on record cites <i>&#8220;James Mugenyi&#8221; </i>only as the <i>&#8220;Appellant&#8221; </i>and <i>&#8220;Margaret Kamuje&#8221; </i>(the present respondent) as the <i>&#8220;Respondent.&#8221; </i>The Memorandum of Appeal in the High Court stated as follows: <br> <b><i>&#8220;MEMORANDUM OF APPEAL <br> </i></b><i>The above named Appellant being aggrieved and dissatisfied with the Ruling and Order made by the Magistrate Grade 1 dated 10th December 1993, in which the Appellant&rsquo;s land was ordered for Execution to the Respondent appeals to this Court on the grounds that: </i><i><br> </i><i>1. The learned Magistrate erred in law and in fact in holding that Appellant and one Nyamutale fell within the suit land </i>- <i>under Civil Suit No. 48/76. <br> 2. The learned Magistrate failed to scrutinise the judgment and orders of Civil Suit No. 48/76 otherwise he would have found as a</i><i> </i><i>fact that the late Karasuma had</i><i> </i><i>a separate piece of land apart from the one in dispute. <br> 3. The learned trial Magistrate arbitrarily held against the Appellant when at the locus-in-quo the Respondent purported to claim land in the occupancy of several people thus showing that her claim was all along a fraud. <br> 4. The learned Magistrate erred in law in not listening to all the objectors and their witnesses thus arriving at a wrong decision against the appellant. <br> 5. The learned Magistrate erred in law in failing to appreciate</i><i> that the Appellants were bonafi</i><i>de purchasers for value who had been on the land for more than 23 years. <br> 6. The learned Magistrate erred in law in failing to appreciate that execution was time-barred. <br> 7. The Appellant will pray that further evidence be adduced in this Court. <br> WHEREFORE the Appellant prays that this appeal be allowed with costs.&#8221; <br> </i><br> The respondent appeared in person and the other appellants/objectors were represented by Mr.Musana as their Counsel.<br> The learned High Court Judge dismissed the appeal by the six appellants! objectors, concluding his judgment thus: <br> <i>&#8220;1 therefore, give judgment for the plaint ff/respondent to this appeal, Margaret Kamuje, and decree that the land lying between the boundaries herein before described by me is the land in respect of</i><i> </i><i>which she sought execution. I dismiss the </i><i>objection of the six objectors </i><i>appellants. </i><i><br> </i><i>1 grant Margaret Kamuje c application for execution and order that it be carried o</i><i>ut forthwith. 1 also</i><i> grant her costs of these hearings into the objections against all the objectors.&#8221;</i><i><br> </i><i> </i>The present appeal is against that decision. Only four of those who apparently appealed to the High Court have now appealed to this Court. <br> Four grounds of appeal are set out in the Memorandum of Appeal as follows: <br> <i>&#8220;1. The learned Judge erred in law in making orders interfering with the decision of His Worship Moses Katorogo made in an objector application whereby the learned Magistrate preferred objections of the first, second and third appellants because of the following matters. <br> (a) The said appe</i><i>llants were not party to Civil </i><i>Appeal No. 52 of 1994. <br> (b) The respondent Margaret Kamuje had </i><i>notified</i><i> </i><i>an appeal or cro</i><i>ss-appeal against the findings </i><i>of His Wor</i><i>ship Katorogo to contest their </i><i>successful objections <br> 2. The learned Judge on</i><i> </i><i>Appeal did not take into account the principles governing the resolution of objector applications and thereby arrived at a wrong decision in respect of the claims of all the appellants. <br> 3. The learned Judge on Appeal erred in law in exercising his appellate jurisdiction in the following matters: <br> (a) The learned Judge took fresh evidence by visiting the locus as f he were a Court of</i><i> fir</i><i>st instance. <br> (b) The learned Judge wrongly disregarded the evidence recorded by the learned Magistrate in the course of the inquiry required by principles governing objector applications and instead relied on the evidence given in separate trial proceedings between the respondent and one Israel Karasuna, a case to which the objectors were not party <br> (c) In the absence of an appeal by the respondent contesting the Magistrate findings in relation to the position of the boundaries it was not open to the learned Judge on Appeal to revisit the findings of fact made by the Magistrate. <br> 4. The record of the objector proceedings in the Magistrate&rsquo;s Court shows that the Magistrate had made a sketch as a result of his visit to the locus in quo, which is lost and cannot be found. Part of the evidence on record is therefore, missing to the prejudice of the appellants in the conduct of their appeal. <br> It is proposed to ask the Honourable Court to allow the appeal and grant the following orders: <br> a) An order setting aside the judgment and decree of the High Court. <br> b) An order restoring the findings of the Court of first instance in respect of the objections of the first, second and third appellants. <br> c) An order reversing the findings of the Court of first instance in respect of the objection of the fourth appellant. <br> d) In the alternative, an order for rehearing of the appeal and/or objector applications. <br> e) Costs of this appeal.&#8221; </i><i><br> </i>Mr. Ebert Byenkya, learned Counsel for the appellants abandoned ground four of the appeal.<br> <div align=left> Under the first ground of appeal, Mr. Ebert Byenkya, submitted that there having been only one appellant before him, the learned appellate judge erred to have interfered with the ruling of the learned Grade I Magistrate which was in favour of the present first, second and third appellants in the objection proceedings. The learned Grade I Magistrate upheld their objections. They were not parties to the appeal in the High Court, as there was only one appellant in that appeal, namely James Mugenyi. This was evident from the Memorandum of Appeal dated 4-l-94, and filed in the High Court at Fort Portal on 10.1.194. According to the provisions of 0.39 r.l of Civil Procedure Rules an appeal to the High Court is instituted by filing a memorandum signed by the appellant or his advocate.<br> </div> Secondly, the learned Counsel contended that certain passages in the proceedings before the High Court at the hearing of the appeal tend to support the view that there was only one appellant.<br> <div align=left> Thirdly, it is contended that as the present first three appellants were not parties to the appeal before him but were parties to the proceedings in the court from which the appeal arose, the learned appellate judge ought to have followed the procedures stipulated in 0.39., rr.2.ll, 12, 13, 14 and 17 of the C.P.R.<br> </div> As I understand them, only the provisions of rules 1,2, 3, and 17 appear to be relevant to the learned Counsel&rsquo;s submission in this regard. They provide: <br> <i>&#8220;0.39 r. I (1) Every appeal to the High Court shall be preferred in the form of a memorandum signed by the appellant or his advocate and presented to the Court or to such officer as court shall appoint in that behalf <br> (2). The memorandum shall set forth, concisely and under distinct heads the grounds of objection to the decree appealed from without any argument or narrative; and such grounds shall be numbered consecutively.</i><i><br> </i><i> 2. The appellant shall not, except by leave of the court, </i><i>argue</i><i> or be heard in support of any ground of objection not set forth in the memorandum of appeal; but the High Court in deciding the appeal shall not be confined to grounds of objection set forth in the Memorandum of Appeal or taken by leave of the Court under this rule: <br> Provided that the High Court shall not rest its decision on any other ground unless the party who may be affected thereby has had sufficient o</i><i>pportunity of contesting the case on that </i><i>ground.</i><i><br> </i><i>3. Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the </i><i>plaintiffs</i><i> and all the defendants any one of the plaintiffs or of the defendants may appeal</i><i> </i><i>from the whole decree, and thereupon </i><i>the High Court may reverse or var</i><i>y, the decr</i><i>ee in favour of all the plainti</i><i>ffs or defendants, as the case may be.&#8221;</i><i><br> </i><i>&#8220;0.39. r. 17. Where it appears to the Court at the hearing that any person who was a party to the suit in the court from whose decree the appeal is preferred, but who has not been made a party to the appeal, is interested in the result of the appeal, the court may adjourn the hearing to a future day to be fixed by the court and direct that such person be made a respondent.&#8221; </i><i><br> </i><div align=left> Mr. Byenkya&rsquo;s further submission under the first ground of appeal is to the effect that in view of the provisions of the rules of Civil Procedure to which I have just referred the appellate Judge in the instant ease should not have decided the appeal before him without hearing the persons who were parties to the objection proceedings but not parties to the appeal because, as it is, their interest were prejudiced by the decision in the appeal.<br> Ms. Khalayi, the learned Counsel for the respondent supported the learned appellate judge&rsquo;s decision. Under the first ground of appeal, she submitted that according to the record of proceedings in the High Court Mr. Musana represented more than one appellant in that court. He was recorded as appearing for <i>&#8220;appellants including objectors 1-4 and appellants 5 and 6.&#8221; </i>Further, in the course of his submission, Mr. Musana was recorded as having referred to <i>&#8220;appellants&#8221; </i>in several incidences. Consequently the learned appellate Judge in his judgment also referred to the persons who appealed as <i>&#8220;appellants, </i>&#8220;meaning that there were more than one appellant.<br> Secondly the respondent&rsquo;s learned Counsel contended that the file in this case is incomplete. The learned appellate Judge said so on page 9 of his judgment. If this were so, it is contended, it cannot be said for certain that there were no other Memoranda of Appeal in the High Court. In the circumstances, therefore, the learned Counsel contended, all the six original objectors/applicants before the learned Magistrate Grade I had appealed to the High Court, and the learned appellate Judge, Rajasingham 3, dismissed their appeal. <br> Ms. Khalayi further submitted that even if three of the present appellants did not appeal to the High Court, rule 27 of Order 39 of the Civil Procedure Rules empowers the High Court to exercise its powers in favour of the party or parties who has not filed a Memorandum of Appeal or a cross-appeal. The learned Counsel also referred to an equivalent rule of the <i>Indian Civil Procedure Rules </i>as discussed on page 591 of <i>A.I.</i><i>R. </i>where it is said that in exceptional cases the rule enables an Appellate Court to pass such decree as ought to have been passed, or as the nature of the case may require, even if such decree would be in favour of the parties who have notified any appeal or cross-objection against the lower Court&rsquo;s decree. <br> In the circumstances, Ms. Khalayi contended, the appellate Judge properly made the order interfering with Grade I Magistrate is order upholding the objections of the present first, second and third appellants in the manner he did.<br> </div> The method of preferring an appeal in the High Court is clearly provided for in 0.39, r.1 of the C.P.R. The provisions of which appear to be mandatory.<br> In the instant case, the appeal to the High Court, on the face of it, appears to have been instituted by only one Memorandum of Appeal in which <i>&#8220;James Mugenyi&#8221;</i><i> </i><i>was </i>cited as the appellant, and <i>&lsquo;Margaret Kamuje </i>&#8220;as the respondent. <br> <br> However, there are credible indications that all the six objectors whose objection application had been tried by Magistrate Grade I, Moses Mulindwa Katorogo, were appellants in the High Court, or at least the Memorandum of Appeal dated 4-7-94 and filed in the High Court on 10-1-94 was intended to be on behalf of all the original objectors. The following reasons appear to support that view. <br> First, in paragraph <i>5 </i>of the Memorandum of Appeal it was stated: <br> <i>&#8220;5 The learned Magistrate erred in law in failing to appreciate that the </i><i><u>appellants </u></i><i>were bona fide </i><i><u>purchasers </u></i><i>for value who had been on the land for 23 years.&#8221; (Underlining is mine) </i><i><br> </i>Secondly, in the titles of the appellate High Court proceedings, and the judgment of the appellate Judge, all the six original objectors/applicants were listed as <i>&#8220;Applicants/Appellants.&#8221;</i><i><br> </i><i> </i>It is doubtful in my view, if the learned appellate Judge would have signed the proceedings before him and his judgment so titled if there was only one appellant.<br> Thirdly, at the commencement of the hearing of the appeal, the appellate Judge&rsquo;s notes of proceedings read: <br> <i>&#8220;13-6-95 Mr. Musana for the appellants. Plaintiff in person/respondent. Mr. Musana appears for appellants including objectors 1 </i>- <i>4 and appellants 5 and 6. <br> The plaintiff respondent appeared to suggest that her land had a structure as it is now. Since </i><i><u>appellants </u></i><i>maintain that they have permanent structures on the land, it seemed possible that what she was claiming was a land other than the portions occupied by that appellant&#8221; (The underlining is mine).</i><i>&#8221;<br> </i><i> </i>Fourthly, in his submission as Counsel for the appellants in the High Court Mr. Musana said, inter alia: <br> <i>&#8220;Plainti</i><i>ff so</i><i>ld her portion of the land to Ti</i><i>gwezire. </i><i><u>Appellants </u></i><i>do not dispute that plaint</i><i>if</i><i>f is entitled to a portion of</i><i> </i><i>Nyabugaba&rsquo;s land, but it is not this portion. It was land in Karasuma &lsquo;s portion.&#8221; </i><i><br> </i>Further on in the record proceedings in the High Court Mr. Musana is recorded to have said this in his submission: <br> <i>&#8220;Ground of appeal is failure to hear </i><i><u>appellants. </u></i><i>He acted solely on affidavit. Ground No. 5 </i><i>appellant&rsquo;s</i><i> bona fide purchasers of 23 years standing in 1993.&#8221; </i><i><br> </i>Fifthly, certain passages in the learned appellate Judge&rsquo;s judgment also indicate that there were more than one appellant before him. For instance, at the commencement of the judgment he said: <br> <i>&#8220;This is an appeal from a ruling by the then Grade one Magistrate, Mr. Katorogo on an application for execution by the respondent Margaret Kamuje and objection to the grant of execution by </i><i><u>these six objectors.&#8221; </u></i><i><u><br> </u></i>Another passage of the judgment reads: <br> <i>&#8220;The present </i><i><u>surviving objectors </u></i><i>Nyamutale and Mugenyi appealed the ruling of Magistrate Katorogo...&#8221;</i><i><br> </i><div align=left> <i> </i>Sixthly, the manner in which the appeal in the High Court was instituted appears to be comparable with the manner in which the objection application was brought before the learned Magistrate Grade 1, Katorogo. Only one of the objectors, David Muhenda, swore the affidavit in support of the Notice of Motion for all the other five objectors/applicants. Did James Mugenyi in instituting the appeal in the High Court in his names alone merely follow a practice which had begun by the manner in which the objection application was instituted? There is no answer to that question but the comparison interesting.<br> </div> The four were: <br> 1. Parsis Okao <br> 2. David Nsubuga <br> 3. James Sabiiti Kachope, and <br> 4. David Muhenda. <br> In the peculiar circumstances of this case, I think that the powers of the High <br> Court provided for in rules 3, 17 and 27 of Order 39 of the C.P.R. would support the decision of the learned appellate Judge.<br> I have already set out the provisions of rules 3 and 17. This rule applies to the situation in the instant case if only one of the original objectors appealed to the High Court as contended by the present appellant&rsquo;s learned Counsel. <br> Rule 27 provides: <br> <i>&#8220;The High Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or Order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the </i><i><u>respondents although such respondents </u></i><i>may not have </i><i>filed any appeal or cross appeal</i><i>&#8221;</i><i><br> </i><i> </i>Although due to the underlined expression, the rule appears to apply only to respondents, my view is that it also applies to appellants by analogy.<br> <div align=left> In an exceptional case such as the present rule, 27 in my view, empowers the High Court in its appellate jurisdiction to pass such a decree as ought to have been passed, or, as the nature of the case requires even if such a decree would be in favour of parties who have not filed any appeal or cross-appeal against the lower Court&rsquo;s decision. Even if the respondent did not cross-appeal, the power may be exercised in her favour. <br> The present case is exceptional because of the very long delay which occurred from the time the respondent obtained judgment in her favour in the suit she filed in 1976 to the time the appeal to the High Court was filed and heard on <i>13-06-95. </i>She obtained the decree on 2-7-76. Thereafter her efforts to enforce the decree by attachment procedures were frustrated by persons who, apparently, settled on the disputed land after she obtained judgment. Her efforts to evict the persons were apparently resisted by force.<br> </div> Another reason, in my view, for the case being exceptional is that the learned Grade I Magistrate who upheld four of the six objector&rsquo;s applications against the respondent&rsquo;s application to execute her decree did not indicate <br> <br> <div align=left> when the various objectors/applicants acquired interest in or possession of the respective areas of land which they claimed as the basis for objecting to execution of the decree obtained by the respondent. <br> In the circumstances, my view is that, the orders made by the appellate Judge in the instant case were within his powers to make. He, therefore, properly interfered with the Orders of the Grade I Magistrate which upheld four of the original objectors&rsquo; applications.<br> </div> For the reasons given, the first ground of appeal should fail.<br> <div align=left> In his submission under the second ground of appeal, Mr. Byenkya referred to rules 55 to 60 of Order 19 of the Civil Procedure Rules. He contended that in objection proceedings, the decisive factor is <i>&#8220;</i><i>possession</i><i>&#8221; </i>of the subject matter of the objection when an objection to an attachment is made. The Court should carry out an investigation to determine whether the property the attachment of which is being objected to is in the possession of the judgment debtor on his own account or on account of some other person. For this proposition, Mr. Byenkya relied on certain decided cases, namely; <i><u>Sokempex Interstate Co. Ltd. v. Eurafro General Import and Export Co. Ltd. (1981) HCB 75 Chotabhai M Patel v. Chatrabhai Patel </u></i><u>&amp; </u><i><u>Anor. (1958) E.A. 743 </u></i>and <i><u>Harilal </u></i><u>&amp; </u><i><u>Co. v. Buganda</u></i><i><u> Industries Lt</u></i><i><u>d. (1960) E.A. 318. </u></i>Learned Counsel contended that in the instant case, the learned appellate Judge erroneously considered the appellants&rsquo; legal title to the disputed kibanja. Such investigation would be appropriate only under rule 60 of Order 19 of the C.P.R. Under the provisions of rule 60, where an objection is upheld, the party against whom an order is made may institute a suit to establish the right which he claims in the property in dispute but, subject to the result of such a suit, if any, the order shall be conclusive. In the instant case, Counsel contended, the order upholding the objections of the first four objection applicants ought not to have been disturbed by the learned appellate Judge, because the objectors (who are the appellants in the instant appeal) were in possession of the disputed suit property.<br> In reply, Ms. Khalayi submitted that the decided cases on which the appellants&rsquo; learned Counsel relies and others he did not refer to also support the view that in objection proceedings the party objecting has to establish whether he is the owner of the property in dispute or whether he holds it on trust for the judgment debtor or for some other person or has some interest in the property. The Court must consider this before making an order against the objector. <br> </div> <br> Ms. Khalayi also relied on the case of <i><u>Uganda Mineral Waters Ltd. v. Amin Piran and Kampala Minerals Ltd. (1994 </u></i><u>- </u><i><u>95) HCB. 87. </u></i>So, the learned Counsel contended, the factor of ownership of the disputed property is also important and must be taken into account by the Court investigating an objection to execution of a decree.<br> The rules of Civil Procedure which are relevant to this matter are, in my view, rules 55(1), <i>56, 57, </i>58 and 60 of Order 19. The rules provide: <br> <i>&#8220;55(1) Where any claim is preferred to, or any objection is made to the attachment of any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to investigate the claim or objection with the like power as regards the examination of the claimant or objector,</i><i> and in all other respects, as if </i><i>he was a party to the suit. </i><i><br> </i><i>Provided that no such investigations shall be made where the Court considers that the claim or objection was designedly delayed. <br> (2)</i><i>&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;..</i><i> </i><i><br> </i><i>56. The claimant or objector shall adduce evidence to show that at the attachment he had some interest in the property attached.</i><i><br> </i><i>57. Where upon the said investigation, the Court is satisfied that for the reason stated in the claim or objection such property was not, when attached, in the possession of the judgment debtor or of</i><i> </i><i>some person in trust</i><i> </i><i>for him, in the occupation of a tenant or other person paying rent to him, or that being in possession of</i><i> </i><i>the judgment debtor at such time, it was so in his possession not on his own account or as of or in trust for some other, or partly on his own account and partly on account of some other person, the Court shall make an order releasing the property, wholly or to such extent as it thinks fit, from attachment. <br> </i><br> <i>58. Where the Court is satisfied that the property was, at the time it was attached, in the possession of</i><i> </i><i>the judgment debtor as his own property and not on account of any other person, or was in the possession of some person in trust for him, or in occupancy of a tenant or other person paying rent to him, the Court shall disallow the claim. </i><i><br> 59&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;..</i><i> <br> 60. Where a claim or an objection is preferred, the party against whom an order is made may institute a suit to establish the right which he claims to the property in dispute, but, subject to the result of such suit, f any, the order shall be conclusive.&#8221; </i><i><br> </i>Application of the principles and procedures contained in these rules were considered in the case of <i><u>Chotabhai M Patel </u></i>(supra), <i><u>Sokempex Inter-State Co. Ltd. </u></i>(supra) and <i><u>Uganda Mineral Waters Ltd. </u></i>(supra); They may be summarised as follows: <br> <b><font face="Times New Roman">(i)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </font></b><b>Where an objection is made to the attachment of any property attached in execution of a decree on the ground that such a property is not liable to attachment the Court shall proceed to investigate the objection with the like power as regards examination of the objector, and in all other respects as </b>if <b>he was a party to the suit. <br> (ii) The objector shall adduce evidence to show that at the date of the attachment he had some interest in the property attached. <br> (iii) The question to be decided is, whether on the date of the attachment, the judgment debtor or the objector was in possession, or where the Court is satisfied that the property was in the possession of the objector, it must be found whether he held it on his </b>own <b>account or in trust for the judgment debtor. The sole question to be investigated is, thus, one of possession of, and some interest in the property. <br> (iv)</b><b> </b><b>Questions of legal right and title are not relevant except so far as they may affect the decision as to whether the possession is on account of or in trust for <br> the judgment debtor or some other person. To that extent the title may be part of the inquiry. </b><b><br> </b><div align=left> In the instant case, the present appellants were amongst six objectors who objected to execution by eviction from the suit property which had been decreed to the respondent in the original suit. The grounds of the objection application as stated in the notice of motion and the supporting affidavit were to the effect that the suit property was not a subject matter of the Civil Suit MFP.48 of 1976 and hence should not be subjected to execution; that the decree holder (the respondent) was not the proprietor of the suit property, and that the decree holder had no cause of action against the objectors; and that the objectors were in possession because they were also the owners of, or part owners, thereof.<br> </div> The objection was based, therefore, on a claim of legal title as well as possession and the learned Grade I Magistrate decided it on that basis. He found that the land owned by and possessed by the first to the fourth objectors was outside the land claimed for execution; whereas the land claimed by the fifth and sixth objectors belonged to the respondent.<br> In the High Court, the learned appellate Judge also based his decision on possession and title of the objectors and on the respondent&rsquo;s title. <br> In the circumstances, I do not think that the learned appellate Judge based his decision on wrong principles.<br> For those reasons, the second ground of appeal should also fail.<br> <div align=left> Under the third ground of appeal, Mr. Byenkya submitted that the learned appellate Judge took fresh evidence by visiting the locus in quo. He said that the visit was futile, yet he relied on what he had seen and heard from the parties at the locus. In taking additional evidence, as he did, the learned appellate Judge did not comply with the provisions of rules 22, 23 and 24 of Order 39, which govern the principles and procedures which the High Court should follow in admitting additional evidence on appeals. Mr. Byenkya also relied on <i><u>Alice Janet Namisango v. Chrisestom Galiwango (1986) HCB. 37: </u></i>and <i><u>James </u></i><i><u>Nsibambi v. Lovinsa Nankya (1986</u></i><i><u>) HCB</u></i><i><u>. 87.</u></i><i><u><br> </u></i></div> <i><u> </u></i><i><br> </i>In her reply under the third ground of appeal, Ms. Khalayi submitted that the appellate Judge&rsquo;s visit of the locus-in-quo was proper, because there was no record of the Magistrate&rsquo;s visit of the locus.<br> <div align=left> The appellate Judge went there only to match the definition of boundaries of the suit land as set out in the Magistrate&rsquo;s judgment. Regarding ground 3(b) of the appeal Ms. Khalayi submitted that the learned appellate Judge had powers to review the evidence for himself in order to determine the matter. Learned Counsel relied on <i><u>Selle v. Associated Motor Boats Co. Ltd. (1968) E.A. 223 </u></i>and <i><u>Sany</u></i><i><u>u Lwanga Muso</u></i><i><u>ke v. Sam Galiwango, Civil Appea</u></i><i><u>l No. 48 of]995 </u></i>(SCU) (unreported). In the instant case, she contended, David Muhenda&rsquo;s affidavit dated 19-2-93, filed in support of the objection application, stated that part of the land sought to be handed over to the respondent in execution of the decree formed part of the Estate of Kezia Rujumba. The claim could not have been true because Kezia Rujumba had been struck out as a co-defendant in the original suit because she did not own the suit property. In order for the appellate Judge to conclusively determine the case, he had to look at the record of proceedings before the trial Grade II Magistrate, together with the affidavit which alleged that the disputed land did not include the land originally owned by Kezia Bokara. The learned appellate Judge also had to compare the boundaries of the suit property as described in the evidence before the trial Court. <br> </div> The learned Counsel concluded that in order for the learned appellate Judge to reach a conclusive decision, he had to scrutinise all the evidence on record. <br> Rules 22, 23 and 24 of Order 39 of the C.P.R. provide as follows: <br> <i>&#8220;22(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the High Court, but if: (a <br> the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or <br> (b) the High Court requires any document to be produced of any witness to be examined to enable it to pronounce</i><i> judgment or for any other subs</i><i>tantial cause. </i><i><br> </i><i>The High Court may allow such evidence or document to be produced or witness to be examined. <br> (2) Where any additional evidence is allowed to be produced by the High Court the Court shall record the reason for its admission.</i><i><br> </i><i>23. Whenever additional evidence is allowed to be produced, the High Court may either take such evidence or direct the Court from whose decree the appeal is preferred or any other Magistrate c or subordinate Court to take such evidence and to send it when taken to the High Court</i><i>.<br> </i><i>24. Where additional evidence is directed or allowed to be ta</i><i>ken the High Court shall specify</i><i> the points to which the evidence is to be confined and record on it</i><i>s proceedings the parts so specifi</i><i>ed.&#8221;</i><i><br> </i>In the instant case, the learned appellate Judge, indeed, visited the locus-in- quo. In his notes of the proceedings he said: <br> <i>&#8220;At the invitation of the parties and since it was within the City limits, I visited the land and asked the respondent to show me the boundaries of the land she claimed. When she did so, she included the house of the appellants. She said she had meant that she had no house on the land. When I read out the description of the land as claimed by her and recorded in her evidence in 1976, She said the Magistrate had recorded something other than she had meant: The visit having proved futile, I returned to Court.&#8221;</i><i><br> </i><i> </i>In his judgment, the learned appellate Judge stated the reason for his visit to the locus-in-quo, to be to match the definitions of the land as set out in the record of the case and to which the trial Court&rsquo;s judgment related. I understand this to mean to compare the boundaries on the ground with the evidence at the trial. Hence he said this: <br> <i>&#8220;I have visited the scene and found no difficulty in matching the definition of the boundaries of the land set out in the record in this case and to which the judgment related. <br> </i> <br> <div align=left> The learned appellate Judge then went on to describe the boundaries of the suit property as he matched them with the descriptions given by the parties in evidence at the trial; and concluded his the judgment as I have already set out in this judgment.: <br> In the circumstances, my view is that the learned appellate Judge did not visit the locus-in-quo to take additional evidence and that no additional evidence was taken. If what the respondent apparently said at the locus-in-quo, amounted to additional evidence it did not assist her case. The learned appellate Judge found the visit futile. Further, in view of the purpose of the visit as stated by the learned appellate Judge, the .visit was not intended for taking additional evidence.<br> </div> In the case of <i><u>Alice Janet Namisango </u></i>(supra). Odoki J. (as he then was) is reported to have said: <br> <i>&#8220;By visiting the locus-in-quo an appellate Court would be descending into arena of the trial Court and taking additional evidence which can be allowed only in exceptional circumstances as indicated above. It is a procedure which should not be indulged in by appellate Courts save in exceptional circumstances.&#8221;</i><i><br> </i><i> </i>I agree with that statement although it appears to have been made obita. In any case, I think that the present case was an exceptional one. In this connection this case is an exceptional one because the Court from whose decision the appeal to the High Court arose, did not make notes of what happened at the locus when that Court visited it or, if it did, such notes are not available on record. Secondly the sketch drawing of the locus in quo which that Court made got lost and was not available to the appellate High Court Judge. Lastly the findings of that Court regarding the boundaries of the disputed kibanja were inconsistent with the boundaries as found by the trial Court according to the evidence adduced by both sides to the suit.<br> The learned appellate Judge should have, of course, made notes of what transpired at the locus in quo during his visit there. He apparently did not. To my mind, his failure to do so did not occasion a miscarriage of justice.<br> Next, the duty of the learned appellate Judge as the first appellate Court in this case. In that capacity, he had a duty to submit the evidence as a whole to a fresh <br> <b><i> </i></b><br> <div align=left> and exhaustive examination and was entitled to reach his own decision on the evidence. A first appellate Court must weigh conflicting evidence and draw its own conclusions. It is not merely to scrutinise the evidence to see if there was some evidence to support the lower Court&rsquo;s findings and conclusions, and only then can the Court decide whether the trial Court&rsquo;s findings should be supported. In doing this the Court should make due allowance for the fact that the trial Court had the advantage of hearing and seeing the witnesses. In short, an appeal from a trial Court is by way of a retrial and appellate Court is not bound to follow the trial Court&rsquo;s finding of facts if it appears either that it failed to take account of particular circumstances or probabilities or if the impression of the demeanor of a witness is inconsistent with evidence generally. See <i><u>Selle and Another v. Associated motor Boat Company Ltd. and Others 1968) EA. 123; Pandya v. R. (1957) E.A. 336 </u></i>and <i><u>Sam Galiwango, Civil Appeal No. <br> 48 of 7995 </u></i>(SCU) (unreported). <br> In the instant case the learned appellate Judge was hearing an appeal against orders upholding objection applications. This was unlike a second appeal. The learned appellate Judge had before him evidence from the Court which tried and decided the original suit and the evidence on the basis of which the objection proceedings were based and decided. In the circumstances, the duty of the learned appellate Judge on the matter was equivalent to that of a first appellate Court. Such duty is restated in the cases to which I have already referred in this judgment.<br> The crucial issue in this case, in my view, is the identity of the suit property (the kibanja) which the trial Grade II Magistrate decreed to the respondent. Why did the learned Grade I Magistrate uphold the claim of four objectors regarding the suit property, and in respect of which the respondent was enforcing the decree passed in her favour? Were the objectors claiming the same or parts of the same suit property? <br> In her evidence, describing the Kibanja, which the trial Grade II Magistrate accepted, the respondent said this: <br> </div> <i>&#8220;In 1956, April 12, my uncle Absolomu Nyabugabwa gave me a kibanja at Harukoto village. When he gave me the kibanja, t</i><i>here was Kasi Byabafumu and Sabi</i><i>iti Kagoro. He showed me that the boundaries of the kibanja. In the East the boundary is Fort Portal Kasese Road, in the West there is a Jack and in the South there is Kezia <br> </i><b> </b><br> <i>the mother of D.I who was struck out the boundary is fence and path. <br> The defendant wants to take the whole kibanja </i>.. ... <i>I left the defendant who was my real father in the Kibanja I returned and found the defendant still in the house.... I did not wish to have a dispute with my father. I sold the h</i><i>ouse to Francis Tuwezire for </i><i>. 2500</i><i>/</i><i>=. Francis entrusted the house to Mary Silver, who was struck out. After sometime, Francis instructed Mary Silver to demolish the house and it was demolished. I then wrote to Francis copy to Kezia to the </i><i>effect that the argument was atte</i><i>nded</i><i> </i><i>since the house was demolished. In August 1975, I took porters to clear where I wanted to build another house, Mary </i><i>Silver came with other people ar</i><i>med with pangas and sticks. They chased me away</i><i>.<br> </i><i> </i>In cross-examination, the respondent said: <br> <i>&#8220;I never sold the house when </i><i>it</i><b><i> </i></b><i>was .till new. It is Vanisi Rujumba my aunt who accused me for having pledged the house. She gave me 7 iron sheets and 4 windows. She had prevented me to pledge it. I lost the suit and the house was declared to belong to 2 of us with that aunt. I never exchanged that house. &lsquo;The kibanja is mine.&#8221;</i><i><br> </i><i> </i>In answers to questions from the trial Court, she said: <br> <i>&#8220;The defendant was staying in the house of my uncle which was in the same kibanja. I requested him to keep my house and</i><i> </i><i>a child who is in the house. Absolomu had partitioned the same kibanja in 3 pa</i><i>rts. He gave one part to the def<!-- char 0xe8 --> nda</i><i>nt and another one to Kezia, my aunt. He had a mailo land.&#8221; </i><i><br> </i>I have already referred to the answers which the trial Magistrate gave to the issues framed at the trial. However, in terms of specific findings, these are what appear to emerge from his judgment: <br> 1) The disputed kibanja belonged to the respondent, not to Israel Karasuma the defendant. <br> 2) The boundaries of the disputed kibanja were well described by the respondent in her testimony. <br> 3) The trial Grade II Magistrate rejected defence evidence that: <br> (a) the disputed kibanja was given to Vanisi Rujumba by Israel Karasuma; <br> (b) Absolomu Nyamugabwa, the respondent&rsquo;s father reclaimed the disputed kibanja from Vamisi, because she was mentally disturbed. <br> 4) Mary Silver Bakara was struck out as a co-defendant in the suit between the respondent and Israel Karasuma, because she informed the trial Court that the disputed kibanja belonged to Israel Karasuma and not to her. This is the person who chased away the respondent with a panga and sticks when the respondent wanted to build a new house on the disputed kibanja. She is the same person on whose account objections were made and heard by the learned Grade I Magistrate. <br> 5) Kezia the mother of Mary Silver Bakara, the respondent&rsquo;s aunt, was given her own kibanja by Absolomu Nyabugabwa the respondent&rsquo;s uncle and mailo owner. This appears to be the same Kezia whose land bordered with the disputed kibanja (the suit property) on the East. <br> Against the judgment and findings of the trial Grade II Magistrate, six objectors filed an objection application to prevent execution of the decree granted in favour of the respondent.<br> <div align=left> It is necessary to reproduce the essential elements of that application and the supporting evidence in order to see clearly whether, as it was alleged, the suit property was not the subject matter of the suit between the respondent and Israel Karasuma, the implication being that the respondent was seeking to execute her decree by claiming the objectors&rsquo; property, which was different from the suit property. <br> Paragraphs 2, 3 and 4 of the six objectors&rsquo; notice of motion dated 22-2-93, stated:<br> </div> <i>&#8220;2. The land in possession of the Objectors/Applicants was not a subject matter of Civil Suit No. MFP48 of 1976 and hence is not to be subjected to execution by the Respondent/Plaintiff</i><i>.<br> </i><i>3</i><b><i>.</i></b><i> The defendant was not a proprietor of the Objectors/ Applicants&rsquo; land before and at the time Civil Suit No. MFP48 of 1976, was litigated and dispo</i><i>sed of. <br> 4. The respondent/Plainti</i><i>ff has no cause of action against the Objectors/Applicants SAVE against the Fort Portal</i><i> Municip</i><i>al Council, f at all which is the Land Lord.&#8221; </i><i><br> </i>David Muhenda&rsquo;s affidavit was the only evidence put on record in support of the objection application. The relevant parts of the affidavit stated: <br> <i>&#8220;4. That part of the land in respect o</i><i>f which the Respondent/ Plaintif</i><i>f seeks execution forms parts of the Estate of the late MARY BAK4RA as evidenced by</i><i><br> </i><i></i><i><font face="Times New Roman">(a)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </font></i><i></i><i>The building p</i><i>lans presented to and approved </i><i>by the Local</i><i> </i><i>Authorities in 1970 (see Annexture</i><i> &#8220;A&#8221;</i><i> <br> (b) The yearly Tena</i><i>ncy Agreement with Fort Portal </i><i>Municipal Coun</i><i>cil and the description of the </i><i>land in Harukooto Plot No. 05.A 144 (see </i><i>Annexture &#8220;B&rsquo;)</i><i>. <br> (c) The Rates d</i><i>emand notes (such as Annexture </i><i>&#8220;C&#8221; hereto) addressed to Bakara from Fort</i><i> </i><i>Portal Municipal Council. <br> (d) General Receip</i><i>ts of payment of rent (such as </i><i>Annextures &#8220;D&#8221; and &#8220;E&#8221; hereto) paid by Bakara <br> to Fort Portal Municipal Council. <br> 5. That in view of the contents of</i><i> </i><i>paragraph 4 hereof and as an Administrator of the Estate of the late Mary Bakara (see Annexture &#8220;P9 the Respondent/Plaintiff has no claim on the land kn</i><i>own as HARUKOOTO PLOT NO. 05.A. </i><i>144. Fort Portal Municipal Council is the land lord and Mary Bakara (deceased), the tenant with a house. <br> 6. That part of the land in respect of which the Respondent/ </i><i>Plaintiff</i><i> </i><i>seek executions for vacant possess ion forms part of the Estate of Kezia Rujumba (deceased) as evidenced by: <br> a) The Building P</i><i>lans presented to and approved </i><i>by the Local Auth</i><i>orities in 1965 (see Annexture &#8220;C&#8221;</i><i>). <br> b) The yearly Tenancy with Fort Portal Municipal Council and the description of land is Harukooto Plot No. 05.A. 102 (see Annexture &lsquo;R </i>&lsquo;9 <br> <i>c) The Rates demand note (see Annexture &#8220;I&#8221; hereto (and receipts of</i><i> payment to Fort Portal Municip</i><i>al Council (see Annexture &#8220;J&#8221; and &#8220;K&#8221;). <br> d) Receipts of</i><i> </i><i>payment of rent (such as Annexture &#8220;L&#8221; and &#8220;M&#8221; hereto) paid to Fort Portal Municipal Council. 7. That on the demise of the said Kezia Rugumba Mrs. PERSIS OKAO assumed the administration of th</i><i>e deceased&rsquo;s Estate (see Annext</i><i>u</i><i>r</i><i>e</i><i> &#8220;N&#8221;</i><i> </i>). <br> <i>8. That in view of the contents of</i><i> </i><i>paragraphs 6 and 7 hereof the Respondent has no claim on the land known as HAR UKOOTO Plot No. 05.A. 102. Fort Portal Municipal Council is land lord and Kezia Rugumba (deceased) the tenant with a house therein. <br> 9. That part of the land in r</i><i>espect of which the Respondent </i><i>Plaint</i><i>i</i><i>ff seeks execution for vacant possession belongs to my relative. (The late E VA</i><i>N</i><i>SI</i><i> KACHOPE R</i><i>UJUMBA) She gave the portion of land to her surviving children, David Nsubuga and James Sabiiti Kachope Kayoyo who after her death obtained letters of Administration to the deceased&rsquo;s Estate (see Annexture &#8220;P&#8221; and one in CONSIMILI CASU with MARIA BAKARA (see photogra</i><i>ph 4 and 5 hereof) and KEZIYA R</i><i>UJUMBA (see paragraphs 6, 7 and 8 hereof) <br> 10. That part of the land in </i><i>respect of which the Respondent</i><i> Plaint</i><i>i</i><i>ff seeks execution for vacant possession belonged to my late relative ISRAEL KARASUM4 (decease</i><i>d) and father of the Respondent/</i><i>Plaint</i><i>i</i><i>ff <br> 11. That the l</i><i>ate Karasuma and the Respondent/</i><i>Plaint</i><i>if</i><i>f disputed the ownership of the la</i><i>nd mentioned in paragraph 10 he</i><i>reof between themselves (see Annexture <br> </i>&#8220;Q&#8221; <i>and &#8220;R </i>&lsquo;9.) <br> <i>12. That in view of</i><i> </i><i>paragraph 1</i><i>1 hereof the Respondent /Plaint</i><i>iff sued the lat</i><i>e Karasuna as she had vowed in </i><i>Annexture &lsquo;R&#8221; hereof hence Civil Suit No. 48 of 1976. <br> MARGARET KAMUJE VERSUS KARASUMA and the subsequent appeal. <br> 13. That in view of the contents of paragraphs 10, 11, </i><i>and </i><i>12 hereof the land menti</i><i>oned in paragraphs 4, 5, 6, 7, </i><i>8 and 9 were never a subje</i><i>ct of Civil Suit No. MFP 48 of </i><i>1976 and hence cannot be a subject matter of execution <br> arising </i><i>there from</i><i> and again the ownership is different. <br> 14. That the foregoing notwithstanding the late Karasuma sold the land the subject matter of Civil Suit No. MFP 48 of1976, before the suit was no </i>- <i>case (sic) and execution is not possible.&#8221; </i><i><br> </i><i><br> </i>All the Annextures and photographs mentioned in the affidavit are not available on the record of this appeal.<br> <div align=left> It must be observed that the &#8220;Respondent/Plaintiff&#8221; (as the present respondent was referred to in the Notice of Motion and the supporting affidavit) did not file any affidavit in reply, which would have answered or explained the allegations against her, made in the Notice of Motion and the Affidavit. This is surprising, because, her Counsel, Mr. Nyamutale, said at the objection proceedings that he had been served with the relevant papers. He perused the affidavits and the Annextures. This is what he said on 27-7-93, before the Grade I Magistrate who heard the objection application: <br> </div> <i>&#8220;This morning, I have been served with some</i><i> </i><i>fresh papers, which papers a</i><i>re objecting to the execution. </i><i>I have quickly perused the affidavit which is following the application and have read the Annextures attached thereto.</i><i><br> </i><i>These Annextures refer to Tenancy Agreements with Municipal Council (Fort Portal) to understand (sic) unless Court visits the site and looks at the actual site complained of <br> And since they have put in the</i><i> </i><i>Affidavit</i><i> </i><i>he (sic) requires to put in some fresh submissions. We just go to the site and then I can make my submissions. That is my prayer. I propose an early date as the case has been for too long.&#8221;</i><i><br> </i><i> </i>The learned Grade I Magistrate subsequently visited the locus-in-quo and drew a sketch plan thereof but the sketch subsequently got lost. Nor are there notes of what transpired at the locus-in-quo, if indeed the learned Magistrate recorded any.<br> <b> </b>The essence of the findings made by the learned Grade I Magistrate in his ruling on the objection application may be summarised as follows: <br> <div align=left> 1. According to the record of proceedings at the trial of the suit by the Grade II Magistrate, the suit property was well defined; the boundaries being defined as Fort Portal -Kasese Road on the East, one Jack on the West; Kezia on the South with a path and fence between them. <br> <br> 2. At the locus-in-quo, the respondent, on oath, described, and the Grade II Magistrate observed, the boundaries of the suit property to be: Fort Portal - Kasese Road on the East; one Jack, Idreda and Ton; and one Kakyomya, who acquired land from Mugasa and a trench in the West, where the area is swampy. David Muhenda&rsquo;s description of the suit property, also made on oath at the locus, is similar to that by the respondent, except he said that Kezia is on the South. He did not mention one Kakyomya. <br> </div> <br> 3. During his visit to the locus-in-quo the learned Grade I Magistrate drew a sketch plan of this observation made according to the description, made on oath, by the respondent and David Muhenda.<br> 4. When Civil Suit No. 32/76 (He must have meant No. 48/76) was filed in Court, Kezia Rujumba, Mary Bakara and Vanisi Rujumba were still alive. They were never made parties to the suit. They would have been sued with Karasuna if they were occupying the suit property. <br> 5. The suit property was well defined in evidence and in the trial Magistrate&rsquo;s judgment. It does not include the areas of land for which execution was sought by the respondent.<br> 6. The objection application by the 1st, 2nd, 3rd and 4th objectors was validly made, because the areas of land claimed in the objection were outside the suit property.<br> 7. The objection by the 5th and 6th objectors was unsuccessful because they claimed their interest under the defendant Karasuma who had lost his claim for the suit property in the suit. <br> 8. The respondents&rsquo; application for leave to execute the decree had been granted by the Chief Magistrate. Consequently the plea that it was time barred had no merit. <b> </b><i><br> </i>9. As the 1st, 2nd, 3rd and 4th objectors were not occupying the suit property; the application for execution against them was unsuccessful and no warrant of eviction was issued against them, but warrant of execution of the decree and of eviction was ordered to be issued against the 5th and 6th objectors. <br> In his judgment, the learned appellate Judge re-evaluated the evidence in the case as a whole, as he was duty bound to do, and reached his own conclusions The essence of his findings may be summarised as follows: <br> (1) Mary Silver (Bakara) was the co-defendant in the suit by the respondent against Israel Karasuma. She was struck out when she said that the suit property was not hers, but belonged to Karasuma. <br> (2) At the trial of the suit, there was no doubt as to the boundaries of the suit property, and that the respondent is the owner thereof.<br> (3) Nyamutale, objector No. 5 purported to claim land and buildings belonging to Kezia through her to Mary Silver Bakara, the person who at the original suit disowned the suit property. If there had been no delay in execution of the decree in favour of the respondent, Mary Silver Bakara would have been evicted from the suit land.<br> (4) Mugenyi, objector No. 6 claimed to have purchased the suit property from the defendant Karasuma in 1971. As they lived in a small community he could not have been unaware of the plaintiffs&rsquo; attempts to build on it when she was chased away by Mary Silver Bakara using pangas and other weapons, and thus the plaintiffs claim to the land whose width is less than 100 meters. Yet he made no attempts to intervene in the suit. He could not claim to be a bona fide purchaser for value of the suit property without notice of the respondent&rsquo;s claim to it. If indeed, he bought it, he must have done with knowledge that Karasuma had no title to it. <br> (5) Contrary to the finding of the learned Grade I Magistrate, the first four objectors namely; Persis Okao, David Nsubuga, James Sabiiti Kachope and David Muhenda, and like the 6th objector, Mugenyi, all claim title from Kezia or her daughter Mary Silver Bakara. Silver Mary Bakara, by her own statement at the trial of the suit, owned no part of the suit property. Kezia was not said by anyone at the trial of the suit that she owned or as owning part of the suit property. <br> <b> </b>(6) The learned Grade I Magistrate, in his attempts to ascertain the boundaries of the suit property appears to have recorded evidence contradicting the evidence at the trial, when all that was required was execution.<br> (7) The learned appellate Judge visited the locus in quo to compare the boundaries described in evidence at the trial with what was on the ground. This is how he then described the boundaries of the suit: <br> <i>&#8220;There is a roadway between the suit land and that of Jack, the person whose land abutted that of the plaintiff Kamuje as set out in the evidence of Kamuje at the trial. That roadway, which may be of more recent creation, therefore, constitutes an easily ascertainable bound</i><i>ary. There is Kasese-Fort Portal ro</i><i>ad bordering the full length of one side of this land. That again was a boundary mentioned in the evide</i><i>nce at the trial and poses no di</i><i>fficulty at all. </i><i><br> </i><i>The third boundary is the swamp at the bottom of the land which parties appear to accept as the boundary and which in any event is not any part of the land in issue in the claims. The fourth boundary according to the evidence at the trial is stated as being the property of Kezia, mother of Mary Silver the original co-defendant who disclaimed the land and a boundary and a path. The Magistrate in the trial referred to a fence in place of the term &#8220;</i><i>boundary&#8221; used</i><i> by the plaint (if in her evidence. If indeed there was a fence there none exists anywhere on this land now. Magistrate Mr. Katorogo assumed that the reference to Kezia meant the house which she may have occupied which is on this land and made no attempt to find any fence or path between that house and the rest of the land. The evidence at the trial is that plaintiff wrote to one Francis who had purchased the house she had built on the land with a copy to Kezia and, as his evidence later showed, to Defence witness Jaawa, that the house having been demolished, she was reclaiming the land. Jaawa says he considered the letter childish and did nothing to challenge her claim. Mary Silver, the daughter of Kezia, however, physically resisted</i><i> plainti</i><i>ffs attempt to rebuild and that resistance led to this case against Mary Silver and later Karasuma and to Mary Silver disclaiming the land. Hence the reference to &#8220;in the South Kezia&#8221; is to a land or property such as a house belonging to Kezia which was beyond the suit property and not to any house which may or may not have been occupied by her and/or Mary Silver. The path as pointed out by plaintiff as being the one referred to by her borders on a property on which there are twin buildings of</i><i> recent const</i><i>ruction with a distinct</i><i> </i><i>footpath between them and the path referred to in the plaint</i><i>if</i><i>fs evidence which is now overgrown with grass and shrubs and even has a mound of soil overgrown with weeds. This is hardly surprising after nearly twenty years.&#8221; </i><i><br> </i><div align=left> The learned appellate Judge then dismissed the appeal before him and gave judgment for the plaintifl7respondent Margaret Kamuje and decreed that the land lying between the boundaries described in the passage of the judgment, I have just referred to is the land in respect of which she sought execution. He dismissed the objections of the six objectors/appellants. By implication, he set aside the orders of the learned Grade I Magistrate upholding the objections of the first four objectors. He also granted Margaret Kamuje&rsquo;s application for execution and ordered that it be carried out forthwith. Margaret Kamuje was also granted the cost of the hearings of the objections against all the objectors.<br> </div> I agree with the reasons, conclusions, and orders of the learned appellate Judge. I am unable to fault him.<br> In the circumstances, I would dismiss this appeal with costs to the respondent here and in the Court below. I would also order that: <br> <b>1) The objection by the first four objectors be and </b><b>is </b><b>hereby dismissed with costs to the respondent. The orders of the appellate High Court and of the Grade I Magistrate in respect of the 5th and 6th objectors should remain undisturbed.</b><b><br> </b><b>2) Execution be and is hereby </b><b>issued </b><b>in favour of the respondent to secure for her vacant possession of, and for eviction of persons now occupying, the suit property which was decreed to her in Civil Suit No. MFP 48 of 1976 and the boundaries of which are as per description of the learned appellate Judge herein before referred to. </b><b><br> </b><b>3) The said execution be carried out with due diligence and speed. </b><b><br> </b>As Mulenga and Mukasa-Kikonyogo, JJ.S.C. agree, it is so ordered. <br> Dated at Mengo this&#8230;.17th day of... October 2000. <br> <b>A. H.</b> <b>O</b><b>. ODER <br> </b><b>JUSTICE OF THE SUPREME</b> <b>COURT <br> </b><b>I CERTIFY THAT THIS IS A TRUE COPY OF THE ORIGI</b><b>NAL <br> W. MASALU </b><b>MUSENE <br> REGISTRAR, TH</b><b>E SUPREME COURT</b> <br> <br> <b><u><br> </u></b><b><i><br> </i></b><b><i> </i></b><b><i><br> <br> <br> <br> <br> <br> <br> <br> <br> </i></b><b><u>JUDGMENT OF MULENGA JSC</u></b><u> </u><br> <br> <div align=left> I had advantage of reading in draft the judgment of my learned brother Oder JSC. On the whole, I concur with his conclusions, and agree that the appeal should be dismissed. I only wish to add my view on one issue. In the first ground of appeal the learned appellate Judge is criticised by the first three appellants herein, for reversing the order made in their favour by the Magistrate Grade I. The criticism is based on two reasons, namely; <br> (a) That those three appellants were not party to the appeal in the High Court; and <br> (b) That the respondent did not appeal or cross-appeal against the said order of the Magistrate Grade I.<br> <br> It is unfortunate that the record raises<i> </i>some degree of doubt as to who were the real parties in the High Court appeal from which this appeal arises. On the one hand, in the Memorandum of Appeal drawn by Messrs. J. Musana &amp; Co., Advocates, which is said by the concerned Deputy Registrar to be the only one filed to institute that appeal, only one appellant, James Mugenyi, is cited. On the other hand, in the title of the proceedings and of the judgment of the High Court, all the original six objectors are cited as appellants. The uncertainty is not helped by the fact that the appeal appears to bear two numbers i.e. Civil Appeal No. DR. MFP I of 1994 and Civil Appeal <i>No.52 </i>of 1994, a fact which has not been satisfactorily explained by the said Deputy Registrar Be that as it may, there are two other pointers that seem to suggest a third scenario. First, in the Judge&rsquo;s notes of appearances on <i>13.6.1995 </i>at the commencement of the hearing, it was recorded: <br> </div> <div align=left> &#8220;<i>Mr. Musana for appellants&#8221; </i><i><br> </i></div> <div align=left> Then, after noting the presence of the respondent in person, the following was added, as if by way of elaborating: <br> </div> <div align=left> <i>&lsquo;Mr. Musana appears for appellants including objectors 1st and appellants 5 and 6.&#8221;</i><i><br> </i></div> <i> </i>Secondly, when reviewing the background of the case in his judgment, the learned appellate judge said: <br> <i>&lsquo;The present surviving objectors, Nyamutale and Mugenyi appealed the ruling of Magistrate Katorogo.&#8221; </i><i><br> </i><div align=left> These two quotations suggest to me, that notwithstanding that the Memorandum of Appeal of only one person has been traced, both unsuccessful objectors appealed, and at the hearing of the appeal, the successful objectors also instructed counsel for the appellants to represent them or protect their interests. In the present appeal, Mr. Byenkya, counsel for the appellants argued that in an appeal, an advocate cannot represent an appellant who has not filed a Memorandum of Appeal, and that therefore, the intimation that Mr. Musana represented anyone who had not filed a Memorandum of Appeal, had no legal consequence. Counsel, however, acknowledged the power vested in the High Court under r. 17 of 0.39 of the Civil Procedure Rules, but insisted that in order to invoke that power, the High Court had to follow the procedure set out in that rule, which it did not do in the instant case. The rule reads: <br> </div> <i>&#8220;17. Where it appears to the court at the hearing that any person who was a party to the suit in the court from whose decree the appeal is preferred, but who has not been made a party to the appeal, is interested in the result of the appeal, the court may adjourn the hearing to a future day to be fixed by the court and direct that such person be made a respondent,,</i><i><br> </i><div align=left> <i> </i>Although the learned appellate Judge did not expressly invoke provisions of that rule, there is indication that he was of the view that the successful objectors should also be parties to the appeal. This is even apparent from the beginning of his judgment. The learned Judge treated the appeal as if it were against the whole, rather than a portion, of the ruling by the Magistrate Grade I. <br> In those circumstances, I agree with Mr. Byenkya, the appellate Judge ought to have directed, in accordance with the said r. 17, that those objectors be made respondents. In my view, however, failure to so direct, as well as failure to adjourn the hearing as a consequence, did not occasion injustice. The purpose of the procedure provided for in that rule is to give opportunity to such an interested person to be heard. In the instant case the successful objectors were represented. I would therefore not accept the contention by Mr. Byenkya that they were not heard. Their advocate, Mr. Musana, did not confine his address to the appellate Judge, to Mugenyi&rsquo;s case alone, though he highlighted it. He supported the holding of the Magistrate Grade I that the land they had claimed was separate from the land decreed to the respondent by the Magistrate Grade 11.1 am satisfied, particularly having regard to the extraordinary delay in resolving this dispute, that substantive justice will be better served by terminating it at this stage, rather than to order a rehearing in the court below as proposed by Mr. Byenkya, on the ground of non-compliance with that technical procedure.<br> By parity of reasoning, I would hold that in the circumstances of this case, the fact that the respondent did not appeal or cross-appeal did not, preclude the learned judge from considering the decision of the Magistrate Grade I as a whole. The rationale for his approach, with which I agree, can be discerned from his view of the objectors&rsquo; claims. He observed:<br> </div> <i>&#8220;The appellant Nyamutale purports to claim land and buildings which belonged to Kezia and through her to Mary Silver Bakara, the person who at the original trial disclaimed ownership. If the Magistrates and the court staff had, at that time taken the necessary ac</i><i>tion applied for by the plaintif</i><i>f to that action, these claimants would have had nothing to claim because Mary Silver Bakara would have been evicted. The delay in executing the decree has produced these claimants and further frustrated the efforts of</i><i> </i><i>the</i><i> plainti</i><i>ff to</i><i> obtain her property.</i><i><br> </i><i>This observation applies to all the objectors except objector No.6, Mr. Mugenyi&#8221; </i><i><br> </i><div align=left> In seeking execution of the decree, the respondent, as decree-holder, sought to obtain the whole land as defined in the decree. The learned appellate Judge considered the land which was subject of the decree as one whole, with clearly defined boundaries. In order to do that it was inevitable to review that part of the Magistrate Grade I&rsquo;s order, which had the effect of fragmenting the land, even if the respondent had not cross-appealed against that part. In my view that was not erroneous. Clearly the learned appellate Judge had the power to do so by virtue of provisions ofr.27 of 0.39 of the Civil Procedure Rules. Mr. Byenkya acknowledged that power, but argued that the power could not be exercised against a person who is not a party. I have already indicated in this judgment, my view that the first three appellants herein, through representation by Mr. Musana, Advocate, participated in the appeal in the High Court. <br> Dated at Mengo this .... 17th day of .. .October 2000.<br> </div> <b>J.N.MULENGA</b> <br> <b>JUSTICE OF THE SUPREME COUR</b><b>T</b><br> <b> </b><br> <b><u><br> <br> <br> <br> <br> <br> <br> <br> <br> <br> <br> <br> <br> <br> <br> </u></b><b><u>JUDGMENT OF L.E.M. MUKASA-KIKONYOGO,</u></b><u> </u><b><u>JSC </u></b><b><u><br> </u></b>I have had the benefit of reading the judgment in draft prepared by my learned brother A.H.O.Oder. I concur with him that this appeal should be dismissed in this Court and the Court below. I also agree with the orders proposed by him. I have nothing useful to add. <br> Dated at Mengo this ....17th day of ...October 2000.<br> <b>L.E.M. MUKASA-KIKONYOGO <br> JUSTICE OF THE SUPREME COURT <br> </b><br> <font size=3></font><font size=3><br> </font><font size=3></font> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-032c674d62ec13019d6e8e1fb1249067"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/supreme-court/2000/7/supreme-court-2000-7.rtf" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Mon, 27 Jul 2015 13:33:11 +0000 Anonymous 15388 at https://old.ulii.org