Biryomumaisho & 2 Others v Ibanda District Local Government (Civil Suit 91 of 2018) [2023] UGHC 277 (20 April 2023)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBARARA HCT-05-CV-CS-0091-2018 1. BIRYOMUMAISHO JEROME

- 2. KAMUGISHA GRACE - 3. NYAMICU PHILOMENA :::::::::::::::::::::::::::::::::::: **VERSUS**

# **IBANDA DISTRICT** LOCAL GOVERNMENT :::::::::::::::::::::::::::::::::::: **BEFORE:** HON LADY JUSTICE JOYCE KAVUMA

# JUDGMENT

#### Introduction.

The Plaintiffs brought this suit against the Defendant for $\mathfrak{m}$ enforcement of payment of pension and gratuity arrears following underpayment.

**[2]** The Plaintiffs averred in their plaint that they were employed by the Defendant as law enforcement assistants in 1996 on salary scale U8. That in the year 2003, there was a change in the salary scale by the single spine salary structure 2003/2004 financial year which resulted in an automatic change of their salary scale from U8 to U7 upper. That they were paid these new salaries up to when they were forcefully retired in 2005.

Upon retirement, it is alleged that the Defendant processed and assessed their gratuity and pension based on salary scale U8 instead of U7 upper. That the Plaintiffs made several complaints to the Defendant but these were ignored.

The Plaintiffs therefore brought this suit to demand for payment of their gratuity and pension arrears as a result of under payment totalling to UGX 67,903,350/=, general damages and costs for this suit.

On their part, the Defendant denied every allegation of fact in the plaint. the Defendant contended that whereas the Plaintiffs were appointed as enforcement assistants in Ibanda Town Council under U8 salary scale, in financial year 2003/2004 there was a change in the public service salary structure from a multi spine to a single spine salary scale structure. That as a result, the Flaintiff's position was restructured and or renamed as "law enforcement Assistant" under the new scale U8 lower. That following this restructuring and implementation of the new changes, in 2005 the Plaintiffs were retired from service. The Defendant contended that whereas the Plaintiff continued receiving salary at scale U7, this was done erroneously given that the Plaintiffs had not been absorbed and their new salary would still be U8 lower under the new created structure. That the Plaintiffs were thus entitled to pension under salary scale U8 lower and not U7 upper and rightly assessed by Ministry of Public Service for implementation by the Defendant.

The defendant prayed for this suit to be dismissed because the Plaintiff were not entitled to the reliefs they sought.

In their rejoinder, the Plaintiffs maintained that the change in salary scale uplifted them from U7 to U8 and they denied ever receiving any notification about their positions as law enforcement assistants a position they held from when they were appointed in 1996 up to when they were retired in 2005. That salary scale U8 was meant for support staff yet they were not support staff.

#### Representation

The Plaintiffs were jointly represented by M/s Kahungu-Tibayeta **[31** & Co. Advocates while the Defendant was represented by the Attorney General's chambers.

Both counsel filed written submissions which I have considered in the making of this decision.

#### The Plaintiffs' evidence.

At trial, the three Plaintiffs led their evidence through written $[4]$ statements.

According to PWI, Biryomumaisho Jerome he started working as enforcement assistant in Ibanda Town Council in 1996 at salary scale U8. That in 2003, per a circular issued by the Ministry of Public Service his salary scale was changed moving him from U8 to U7. That the District Service Commission issued a minute pointing out changes in salary scale though he was not served with the letter or minute. That he continued working up to November 11th 2005 when he retired whilst earning the new salary at U7. That upon retirement, he was issued with a minute of person to holder showing the salary scale as U7 upper. That however, he was given pension of UGX 22,058/= calculated on the scale U8 a sum meant for support staff instead of UGX 64,200/= which was based on his new salary scale of U7 upper. That in the years 2010, 2013 and 2015, this pension was raised on both salary scales but his

remained raised as calculate on scale U8. That up to the time of filing the suit, he still earned pension calculated at U8.

During cross-examination PWI told court that he got a document showing the change in salary scale from the town clerk. That he took the document as an appointment letter. That during the three years of restructuring, it wasn't necessary to get the appointment letter. That after the restructuring process he did not continue working. That during the time of restructuring, he wasn't receiving any salary. That by November 2005, he had retired but was receiving salary not due to him because he was not in service. That he had retired by then. That he was retired after the new structure. That he did not know the current position of the then law enforcement assistants and how much they earned.

According to PW2, Nyamicu Philomena in her evidence in chief told court that she started working with the Defendant in 1996 as an enforcement assistant. That she worked up to 2003 when a circular was issued by the Ministry of Public Service which changed the salary scale that affected her moving her from U8 to U7 upper. That it was at this point that she started getting a new salary of UGX 157,980/=. That she kept working up to November 2005 when she retired. That after retirement she was issued with a minute of person to holder on her personal data form showing salary scale U7. That she was however given pension that did not respond to her salary scale at the time of retirement but it was based on the old salary scale yet her salary scale had been raised. That other people's pension was revised in various

years but hers remained revised and based on the old salary scale. That her last pay slip at the time of retirement indicated the new salary scale of U7.

During cross-examination PW2 told court that she didn't receive any notification of salary scale U8 change. That she was a law enforcement assistant at the time of retirement. That in the financial year 2003-04, there was no restructuring. That at the time she retired there was no new salary structure. That the salary scale at the time she retired was U7 upper but she however did not receive any notification to show the new salary because her position was not changing.

PW3 was the second Defendant, Kamugisha Grace. He told court in his evidence in chief that he worked as an enforcement assistant for the Defendant up to 2003 when a circular was issued by the Ministry of Public Service changing salary scales which affected him, moving him from U8 to U7 upper. That he started receiving his new salary. That the District Service Commission issued out a minute pointing out the changes in salary scale but he was never served with the said minute. That he retired on 15th November 2005 while still earning at the salary scale U7 upper. That after retirement he was issued with a minute of person to holder on her personal data form showing salary scale U7. That he was however given pension that did not respond to his salary scale at the time of retirement but it was based on the old salary scale yet his salary scale had been raised. That other people's pension was revised in various years but his remained revised and based on the old

salary scale. That his last pay slip at the time of retirement indicated the new salary scale of U7.

During cross-examination PW3 told court that the public service communicated changes in salary through a circular. That this circular changed his salary scale from U8 to U7. When he was handed this circular, he pointed out his posting as police constable in the new structure. He stated that he fell under police constable. That he retired in 2005 as an enforcement assistant.

# The Defendant's evidence.

On their part, the Defendant led their evidence through one $[5]$ witness, Kasingye Aloysius, the Principal Human Resource Officer. He told court in his evidence in chief that the Plaintiffs were appointed as enforcement assistants in Ibanda Town Council and were receiving a salary under salary scale U8. That in financial year 2003/04, there was a change in the public service structure and the same changed from multi spine to single spine structure. That following this change, the ministry of public service issued guidance and guidelines on how to implement the new single spine structure. That in this guidance, the posts of the Plaintiffs were restructured and their post was renamed from enforcement assistants to law enforcement assistants and they were accorded a new salary scale of U8 lower. That following the restructuring, the Plaintiffs were retired in 2005. That the payment received by the Plaintiffs prior to their retirement was paid in error. That their pension was therefore under salary scale U8 and not U7

upper. That the Defendant sought clarity from the Ministry of Public service on the amount of pension payable to the Plaintiffs and the ministry affirmed that they were entitled to pension at the scale of U8 lower. That therefore the payment of the Plaintiff's pension was justified and rightly assessed at U8 lower.

During **cross-examination DW1**, told court that his duty was to update staff records. That the Plaintiffs were appointed under U8 as law enforcement assistants and in the course of their duty, they did not receive any promotion. That by the time the circular was released, the Plaintiffs were still working and their position was not affected. That the salary they were getting was not at the same level. That the structure did not change but the scale changed from UP-8 to U8. That the Plaintiff's salary did not change since the continued earning the same salary. That the new salary they were earning was being earned in error. That this error was brought to the attention of the Plaintiffs after their retirement after it was realised that they were earning under salary scale U7. That the error was brought about by Ibanda town council. That his salary was on scale U7 instead of U8 the right scale. That pension gratuity is circulated on basis of appointment letter and length of service. That the salary an employee is earning at the time of retirement is also considered.

# Analysis and decision.

During scheduling, the following issues were formulated by $[6]$ counsel for resolution by this court; - 1. Whether the Plaintiffs are entitled to payment of gratuity and pension arrears based on their latest pay on scale U7 upper. - 2. Whether they are entitled to general damages and costs in the suit.

From the facts before me, there are agreed facts I believe I ought to set out from the onset.

According to the facts, it is not in dispute that the Plaintiffs, at the time of retirement in 2005, they were employed by the Defendant as enforcement assistants. It is also not in dispute that on 7th July 2003, the Ministry of Public Service communicated the implementation of the single spine salary structure for the financial year 2003/2004. It is further not in dispute that the Plaintiffs, at the time of their retirement, were earning salary at salary scale U7.

## Issue 1: Whether the Plaintiffs are entitled to payment of gratuity and pension arrears based on their latest pay on scale U7 upper.

The primary law that regulates payment of pension and gratuity **[7]** of public servants in Uganda is the **Pensions Act, Cap 286 (as amended** by *Amended by* Pensions Act (Amendment of First Schedule) Instrument, 2018 (Statutory Instrument 33 of 2018). There are however other regulations like the Uganda Public Service Standing Orders that provide for this subject matter.

It therefore follows that pension or gratuity computation must be computed in accordance with the Pensions Act (supra) as the primary law. I am buttressed in this finding by the provisions in Section 3(2) of the Pensions Act (supra), which is to the effect that "any pension or gratuity granted under this Act shall be computed in accordance with the provisions in force at the actual date of an officer's retirement or of his or her death in the public service, as the case may be."

To resolve this issue therefore, this court must ascertain first what were the provisions in force at the actual date of the Plaintiffs' retirement and secondly, whether in paying their pension and gratuity, the Defendant gave due regard to the said provisions.

The Plaintiffs all told this court they retired on or about 15th November **2005.** As earlier pointed out, this was an agreed fact by all parties. The provisions of the Pensions Act (supra) which was in force at the time the Plaintiffs retired are therefore key to the computation of the Plaintiffs' pension in the instant case.

The rate at which pension is calculated is provided for by the [8] Pensions Regulations in the Pensions Act (supra). Regulation 4 of Part V of the Regulations provides that;

"4. Pensions to whom and at what rates to be granted."

Subject to the Act and these Regulations, every officer holding a of office service the pensionable in the Government, who has been in such service in a civil capacity for be granted on more. may ten vears or retirement a pension at the annual rate of one five-hundredth of

*emoluments* for pensionable her his or each complete month of his or her pensionable service. "[Emphasis mine]

Section (L-b) of the Uganda Public Service Standing Orders 2021 provide for retirement benefits. Of importance to the instant suit is Section (L-b) (5). Section (L-b) (5), provides that;

"5. A public officer shall, on retirement, receive such pension as is commensurate with his or her rank, salary and length of service; and in accordance with written law."[Emphasis mine]

From the above provisions, it is clear that pension may be granted on retirement at the annual rate of one five-hundredth of an employee's pensionable emoluments for each complete month of their pensionable service. Further, the pension is commensurate with the employee's rank, salary and length of service and in accordance with the law.

Both parties to this suit agree that the Plaintiffs' salary at the time of their retirement was paid at salary scale U7 upper. I have equally looked at the last payslips of the Plaintiffs and indeed it is U7 upper.

The contention of the Defendant is that whereas this was true, this payment was in error. I have looked at annexures **DExh 3** and **Dexh 4**. The former was a letter from the Defendant to the Permanent Secretary, ministry of Public Service informing them of the under payment in respect of the Plaintiff. The latter is the response from the Permanent Secretary wherein it was communicated that the payment of the

Plaintiffs at salary scale U7 was erroneous since the position that the Plaintiffs held was at salary scale U8.

The general rule under contract is that excess payment made due **[9]** to mistake or irregular or wrong fixation of pay shall always be recoverable. (See for example Section 60 of the Contracts Act, no. 7 of $2010).$

It would therefore follow that if at all the Plaintiffs were paid outside their salary scale as per the uncontroverted evidence of the Defendant, this money is generally recoverable. The standard is even higher where public money is involved.

From the evidence brought by the Plaintiffs, no evidence was led to the satisfaction of this court as to how they came to start receiving salary scale U7 upper. All they told court was that their salary change was due to the circular **PEXh4**. This court has critically examined the said circular from the Ministry of Public Service, no where in the said circular have I observed any change in the Plaintiffs' salary scale to U7 which they claimed they were earning at the time of their retirement.

Indeed, PWI during his cross examination told this court that he was receiving salary not due to him because he was not in service anymore. Throughout the cross examination, he was not sure of the position he held after the restructuring in the circular. He was also not sure of the pay too. He also did not know the content of the said circular. Even when he was shown the circular, he still insisted that he fell under salary scale U7 but I have failed to find that position in the circular.

$\mathbb{F}$

[10] Similarly, PW2, in her cross examination told this court that she was appointed at salary scale U8 and never received any notification of a change of salary scale because her position was not changed. She further told court that she did not know the current salary scale for persons on her position.

On his part, PW3 confirmed he was appointed at salary scale U8 and had not received any other appointment consequent to that. He insisted that the circular changed his salary scale to U7 but like I already pointed out, no such provision exists. When he was shown the said circular, he pointed court to the position of police constable as the one he occupied at the time of retirement instead of the position of enforcement assistant.

It is now a settled principle of evidence that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove those facts exist. (See Section 101 of the Evidence Act). It is said that this person has the burden of proof. This is the person whose suit or proceeding would fail if no evidence at all were given on either side. (See Section 102 of the Evidence Act).

[11] The standard of proof in cases like the instant one is on a balance of probabilities. (See Miller vs Minister of Pensions [1972] 2 All ER 372. I have found, on the evidence before me, that the Plaintiffs have failed to prove on a balance of probabilities, that they are entitled to a computation of their pension and gratuity based on salary scale U7. I find the Defendant's case more probable and believable that the payment under salary scale U7 to the Plaintiffs was done in error prior to their retirement which error was rectified during the computation of their pension and gratuity entitlements.

Issue one is therefore resolved in the negative. This resolves the last issue in this suit. The Plaintiffs are not entitled to the remedies sought in this suit.

This suit is therefore dismissed. Having found that the error in pay was not orchestrated by the Plaintiffs, I make no order as to costs of this suit. Both parties shall bear their own costs of this suit.

I so order.

Dated, delivered and signed at Mbarara this 20th day of April 2023.

Joyce Kavuma Judge