Bholim v Car & General (U) Limited (Civil Suit 500 of 1994) [1999] UGHC 38 (17 March 1999)

Full Case Text

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

## **CIVIL SUIT NO.500 OF 1994**

**AHMED IBRAHIM BHOLIM Plaintiff**

**VERSUS**

**CAR & GENERAL (U) LTD Defendant**

# **DECREE IN ORIGINAL SUIT**

(O. XVIII rr 6, 7 CPR SI65-3)

Claim for:

- a) Special damages with an interest of 45% p.a. - b) General and Exemplary damages - Costs of the suit C) - 45% p.a interest on decretal sum til payment in full. $d$ )

This suit coming on this 17th day of March, 1999 for final disposal before Honorable Justice I. Mukanza in the presence of the plaintiff and his counsel; and in the presence of Counsel for the defendant.

IT IS HEREBY ORDERED and DECREED that the Defendant do pay to the Plaintiff:

- $a)$ United States Dollars 18,700/ $=$ (Eighteen Thousand, Seven hundred) being special damages, AND - Shillings $30,000,000/$ = (Thirty millions) being general damages. $\overline{b}$ ) - $c)$ Interest on the Decretal sum, (a) and (b), at $45\%$ per annum from 17th March 1999 till payment in full. - Costs of this suit. d)

GIVEN UNDER my hand and the seal of this Court this 19 H day of.

JUDGE / REGISTRAI

We approve:

for: M/S SHONUBI. OKE & CO M FOR JUDGEMENT CREDITOR

Drawn by: Ladwar, Oneka & Co. Advocates Raja Chambers, Parliament Avenue P. O. BOX 10408 **KAMPALA**

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#### THE REPUBLIC OF UGANDA

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IN THE HIGH COURT OF UGANDA AT KAMPALA

### JUDGMENT:

The plaintiff filed this action against the defendant a branch company of the multinational company car and General incorporated and doing business in Uganda, seeking for special exemplary and general damages for breach of contract.

The plaint shows that on the 17th day of May 1993 the plaintiff was offered employment on contract which the plaintiff accepted and signed on the 18th May 1993 (i.e. on the same day). the plaintiff a Kenyan reported on duty in Kampala.

Under the said contract the duration of the contract the duration of the contract was 2 years 11.00 at a fixed period conversion factor every three months. The plaintiff was entitled to several benefits under the contract, housing 30 days annual leave, security, medical treatment, car, telephone, water, electricity, clubs subscriptions, education for one child, air travel between Uganda and Kenya, baggage costs and work permit all these were at the defendant's costs.

And upon assuming work the plaintiff was given a clear schedule of duties and powers which were in line with his The plaintiff did all these with professional capabilities. diligence and utmost commitment. From the time the plaintiff reported one duty, he faced several difficulties created by the defendants agents and the said agents deliberately denied the plaintiff several of his benefits he is entitled to under the above contract i.e. company car, telephone, water, electricity,

club subscription eduction for the plaintiff's child, air tickets, baggage and even the work permit.

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The plaint went to show that the plaintiff further faced unnecessary and oppressive harassments from the defendant purporting to extend the probation period which eventually culminated into the blatant breach of the contract of employments

The plaintiff averred that this termination was unlawfula improper and were based on grounds not provided in the contract hence is a blatant high handed act of breach for which the plaintiff has suffered damages and loss.

The plaint showed particulars and special damages. In its written statement of defence the defendant denied that the plaintiff was entitled under the contract to all the benefite enlisted in paragraph 6 of the plaint and will put the plaintiff to strict proof thereof.

The defendant further averred and denied the plaintiff performed his duties with diligence and utmost commitment `and will put the defendant to strict proof thereof.

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The defendant denies that upon assuming work the plaintiff was given a clear schedule of duties and powers which are in line with his professional capabilities.

It was also denied by the defendant that from the time the plaintiff reported on duty he faced several difficulties created by the defendants and the said agents deliberately denied the plaintiff several of his benefits he was entitled to under the said contract like company car, telephone, water, electricity, club subscription education for the plaintiffs, child, air tickets, baggage and even the work permit. The defendant denies

hat the contract was executed in Uganda and will put the laintiff to strict proof thereof.

The Defendant counter claimed against the plaintiff the sum $\overline{f}$ shillings 1.754.200/= (One million seven hundred and fifty $\n *bur*\n$ thousand and two hundred. That pursuant to the letermination of the plaintiff's contract the plaintiff abandoned The company's rented house and failed to account for household tems and as a result the defendant has suffered loss and damage. Articulars and loss were given by the defendant.

In answer to the counterclaim the plaintiff averred and contended that he had never occasioned any loss for damage as leged in paragraph 13 or at all and that it has never been his contractual or any obligation to maintain company vehicles mpany, house or repair them personally but these were his mititlements as an employee of the defendant.

Before the commencement of the hearing of this suit the llowing issues were framed namely.

$(1)$ Whether there was a contract of employment between the parties.

- If there was which were the terms of the contract of $(2)$ employment. - Which of the parties was in breach of the contract. $(3)$

Whether the plaintiff owes the defendant any money and $(4)$ vice verse.

What general special damages are due to either party. $(5)$ The plaintiff examined himself as PW1 and called one Thomas Trujja PW2 in support of his version where as Cecil Joseph gave vidence in support of the defence.

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As regards issue No. 1. Evidence from PW1 show that he was He was work in the Branch here in Uganda. In his testimony DW1 the **3** Managing director in Uganda. That is of car and (U) testified to the effect that he was appointed in a similar way.- **3** recruited by the head office of the company Nairobi. interviewed there and appointed there after which he was sent to

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**3** General Kenya Ltd. The employment contract was supposed to have\* **3** four pages so far only three pages were tendered in evidence .the . **id** fourth page was not produced. The plaintiff PW1 was urged tq **3** produce the last part of the contract but failed to do so. This; W EXP1 was tendered in court as a contract of employment. bore the head office and this meant the Parent Company Car and-

**3** in effect meant signatures of'either the employer and or that of the employee the It becomes difficult to \_rely on EXP1. The court EXP1. However will throughout, the defence .and A contract with a foreign national foreigner and therefore the contract of employment into (PW1) and the This contract could not there is no evidence of its jp must be in writing. Nl> **3** • plaintiff **3** PW1 is Kenyan in a between him no evidence to\_denyLJ:he\_di.sXance^p£^ could only assume that there was no contract or if there was one j it was an oral but there is the contract of employment 'did not have the 4 defendant should have been in writing, be said to be in writing because I being signed by both parties. That is to say there was no evidence that it was executed by both parties but there is no contract if oral it was illegal and thus unenforceable as persection 13(1) of the Employment Decree i.e. Decree 4 of 1975 which section provides that a

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evidence from the defence to deny the existence of EXP1 disputed page which was missing.

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Also section 14(2) of the decree provides that a contract not presented for attestation shall not be enforceable except during the period one month from the making thereof. Whereas section 10 of the decree provides that an employment contract for six months or more must be in writing. Since the plaintiff was allegedly appointed on contract for a duration of 2 years the same should have been reduced in writing. It must also be noted that the contract was conditional upon the obtaining of work permit. This is so stated in EXP1 but throughout his stay with the defendant company PW1 never had a work permit. The plaintiff $\Uparrow$ worked from June 1993 and he only signed an application form for a work permit filed by himself in October 1993 so he worked illegally for the period June, July, August, September and October for the period before he applied for work permit which could not be done before he filled the form. I do agree with Mr. Shonubi that because of the two illegalities i.e no work permit and no written contract the contract could not possibly be enforced by either. However from the defence EXP1 was recognised by the company. It is trite law that the courts of law cannot sanction that which is illegal see Makula International vs. Nsubuga and Another 1982 HCB page 11. I am however of the view that PW1 proceeded to work on the existence EXP1 which was not noticed by DW1. From what has transpired above the first is in the affirmative in that there was contract of employment between the parties.

The second issue is what were the terms of the contract.

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The learned counsel appearing for the plaintiff submitted that since there was a contract there must have been term and these were reduced in writing. I found as a fact that the fourth page of exhibit P1 the contract but the defence acknowledged its existence though EXP1 bore no signature of the employer and that of the employer and that is the document where the terms of the contract are expressly laid down. Strictly speaking EXP1 cannog be called a contract of employment containing all the terms where the contracting all the terms where the contracting parties are not signatories to the same but the same was accepted PW1 however the defence complained alot about non compliance by the defendant about non compliance by the defendant about his entitlement conditions of service. Some of his entitlements 11.000 dollars per month, housing, full furnished including furniture, crockery, curtains, beds, dressing table, leave of 30 days excluding He was entitled to security Sundayo and Public holidays. watchman, family, free medical service, company car and was also entitled to telephone and electricity transport fees for his Then Air service for the plaintiff his wife and children. children. He was given a house at Myanga. It lacked things like gas cooker. The family suffered. He requested for necessities. He was using a candle. He suffered much. He did not benefit He took his son to Nsambya and his from the medical scheme. expenses were never reimbursed. He was given an old car and yet the company had cars which were not given to him. No telephone were provided. And could not join golf club, UEB club, Sheraton Hotel, Entebbe because of the interference by the General Manager car and general (U).

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$\iota \circ$ **4** As could be deduced from the evidence of PW1 some of his complainants about his entitlement. The demands were too much. **3** They were uncalled for because some of them were not proven. He was however given a car from the evidence six years old and yet his boss DW1 was The plaintiff claimed it was an ol<J driving. on record except he attempted to ask for replacement of wheel.. car reconditioned car. caps as part of maintenance.

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About fee no evidence was adduced to show that the company **3 io** Allegation of his child losing a year are did not provide him with the same document like feeslips should ^Jhave been produced. hard to believe and were not proved.

About transport the parent company transport his property **1**

back to Kenya because he had never gone back up to now. **3** As regards the work permit. This was paid for by the **1** efendant though^had been terminated the plaintiff's services.

This had never been rebutted. The plaintiff claimed that his efforts to join a club were **frustrated** by this.

With regards to Issue No. 1 from the evidence on record, it been established that EXP1 could be called a contract of .. • It was No **1** ms jjployment because most at all the terms of the said EXP1 were entioned although page 4 of this Exhibit Pl was missing. Jj aned by the employer and the employees should have been the it the fact is that both parties recognised its existence **Cidence** was adduced by the defence to challenge the employment / reement which was allegedly signed in Nairobi and the plaintiff ok up the employment in Kampala.

The third issue is which of the parties was in breach of the

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contract. PW1 was a Kenyan national. He was appointed by Car & General Kenya Ltd and was sent in Kampala to work at its branches. The terms of services his entitlements some officer on EXP1 the employment contract. His services were terminated He was not given some of the before the 2 year period. entitlement as per EXP1. And some of the treatment accorded to Manager was to ......the least very him by General embarrassing to the plaintiff. I am of the view that the dismissal of the plaintiff was in justifiable in the case of $A_{\vec{A}}M$ . Suubi vs. Mbale Municipal Council 1975 HCB 191. Sekandi J held Interalia that a dismissal is generally wrongful, if it is made without justifiable cause or reasonable notice. And in John Eletu vs. Uganda Airlines Corporation 1984 HCB 39. The court held that at common law to justify dismissal the breach of duty must be a serious one. The plaintiff's duties were terminated. He was dismissed because irreconcilable differences The plaintiff's service were terminated. with the management. when he was still on probation and they were looking for more. It would appear the plaintiff's services. competent personal. were terminated not because of the irreconcile the difference with the general manager of the defendant company but simply because they wanted to have a more qualified and comentent personal. They wanted to have him replaced. By so acting they were in breach of the employment contract. I am of the view that it was the defendant who was in breach of the contract.

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The fourth issue was whether the plaintiff owes the Defendant any money and vice versa. While on this issue it must be noted that the defendant filed in a counterclaim against the

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plaintiff. He claimed loss of company property worth shillings 500,000/ $=$ , loss of 4 wheel cups for MV Reg. No. 622 UAA shillings $400,000/=$ . Then breaking into company house and purchase of locks Uganda shillings 165,000/=. Then cleaning and painting of the house shillings $689,200/-$ .

Invoice number 1024 was undated and for loss of wheelcaps DW1 in his evidence testified the wheelcups unless lost by the employee it is the company to replace the same. PW1 is not therefore responsible for the loss and for breakage of wheelcups and could not have been condemned to replace the same. $As$ regards receipt No. 123 for breaking locks, on termination of his employment the plaintiff had to go away and even the immigration. authorities were after him. Because he was away the Defendant went and broke the locks. Definitely the plaintiff could not be Then invoice No. 122 there were ordered to replace them. expenses incurred by the land lady in cleaning the premises and <pre>was claiming shillings 689,200/= as indicated about.</pre> This claim was not supported on the evidence adduced.

All those claims were special damages and the law here is that special damages apart from being specifically pleaded they must be strictly proved See Kyambadde vs. Mpigi District Administration 1982 HCB p44, See also Professor C. K. Ssali vs. Isaya Besigye 1978 HCB p 188. Husse Hassan vs. Hunt 1964 EA 201, Kampala City Council vs. Nakaye 1972 EA 446. The position the defendant pleaded special damages in his counterclaim but did not specifically prove the same.

On the part of the plaintiff there was a contractual breach. His services were terminated before the expiry period of 2 years

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until 2nd June 1995. He is entitled to be put in the same position as if the contract had been performed. According to him PW1 he was to receive a monthly salary of USA doilars 1100. He commenced work on 3rd June 1993 and work was terminated on 13.1.94. If he had not been dismissed he would have continued with his employment up to June 1995. He will therefore be paid. salary for the period from 13.1.94 to June 1995 at the rate $\partial$ 1100 USA dollars per month. That is 17 months period remaining to complete. The plaintiff.................................. $x$ 1100 = 18,700 USA dollars.

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plaintiff did indeed suffer damages for those The entitlement he was not awarded by the defendants. He suffered loss embarrassment when humiliated by the defendant's resident Manager Mr. Kassim. The court wondered why the Resident Manager then Karim was not called as a witness. Also another witness whom I feel should have been availed to the court was the Chief Accountant of the defendant company. By so doing I am not shifting the burden of proof to the defendant but it appears they were deliberately left on moreover to hid something. All the same I am of the view that the plaintiff was able to prove his claim on a balance of probability and I am of the view that 'taking into account the inflation in the country has some subsided and doing the best in the circumstances. I am of the view that general damages of shillings 30 million will properly wrongful dismissal $\quad\text{for}\quad$ plaintiff compensate the harassment/embarrassment and for other benefits denied to the plaintiff as per employment contract.

The plaintiff would be awarded interest of 45 percent of the

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Interest 45 percent at the decretal sum for, the decretal sum. date of judgment till payment in full.

The plaintiff prayed for exemplary damages but no evidence was led to prove this. These are awarded in cases where the Acts of the defendant are oppressive arbitrary $\cdot_{\rm of}$ the $\quad\text{and}\quad$ inconstitutional to be plaintiff See Kasule vs. Makerere $\mathcal{L}^{\mathcal{L}}$ University 1985 HCB page 376.

The plaintiff would also be awarded costs of the suit.

I. Mukanza

#### Judge

17.3.99

Mr. Ahamisibwe Harrison from Landwar Oneka and Co. Advocates for $\ldots \rightarrow \gamma$ the plaintiff

Mr. Hudson Musoke hold brief for Mr. Shonubi

Mr. Masongole court clerk

Court:

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Judgment is read and signed.

I. Mukanza Judge 17.3.99

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# **THE REPUBLIC OF UGANDA**

### IN THE HIGH COURT OF UGANDA AT KAMPALA

## CIVIL SUIT N0.500 OF 1994

AHMED IBRAHIM BHOLIM Plaintiff

VERSUS

Defendant **1 I** CAR & GENERAL (U) LTD

# DECREE IN ORIGINAL SUIT

(O. XVIII rr6, 7 CPR SI65-3)

Claim for: **H**

**4**

**1**

**3**

**1**

**3**

**1**

**J**

**I**

- Special damages with an interest of 45% p.a a) - General and Exemplary damages b) - Costs of the suit c) - 45% p.a interest on decretal sum til payment in full. d)

IT IS HEREBY ORDERED and DECREED that the Defendant do pay to tl Plaintiff:

- **1** a) United States Dollars 18,700/= (Eighteen Thousand, Severrhundred) being special damages, AND - Shillings 30,000,000/= (Thirty millions) being general damages. b) - Interest on the Decretal sum, (a) and (b), at 45% per annum from 17th March 1999 till payment in full. c) - d) Costs of this suit.

GIVEN UNDER my hand and the seal of this Court this 199S !.?.^~day of

JUDGE/REC

We approve:

for: M/S SHONUBI, M FOR JUDGEMENTCF OKE & CO. ADVOCATES DITOR

Drawn by; Ladwar, Oneka & Co. Advocates Raja Chambers, Parliament Avenue P. O. BOX 10408 KAMPALA

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