Kabagambe v Uganda Electricity Board (Miscellaneous Application 928 of 1999) [2002] UGHC 132 (19 December 2002)

Full Case Text

### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

## MISCELLANEOUS APPLICATION NO. 928 OF 1999

## **CHARLES KABAGAMBE :::::::: ::::::APPLICANT VERSUS**

UGANDA ELECTRICITY BOARD ::::::::::::::::::::::::::::::::::::

#### **BEFORE:** THE HON. LADY JUSTICE ANNA MAGEZI

### **JUDGEMENT:**

In Constitutional Petition No. 2 of 1999 Mr. Charles Kabagambe invoked the Constitutional Court to make declaratory orders for the violation of his fundamental rights and freedoms and to redress such violations. The Constitutional Court declined to oblige and stated that it had no jurisdiction to enforce the rights sought as its role was limited to interpreting the constitution and not to enforce it. The then petitioner Charles Kabagambe had complained that the administrative actions taken by the respondent culminating in his dismissal were inconsistent with the constitution. In particular because he had not been afforded a fair hearing as he had been denied access to documents containing evidence against him. That when this evidence was supplied it was inexcusably late. That the charges against the petitioner were inconsistent making it difficult for him to prepare his

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defence. That he was denied counsel while the respondent retained and allowed the presence and participation of their own counsel administrative proceedings. during the Therefore that the administrative proceedings violated the rules of natural justice and contravened Article 42 of the Constitution of the Republic of Uganda 1995.

Subsequently when the Constitutional Court ousted itself of jurisdiction Mr. Kabagambe originated Miscellaneous Application No. 928 of 1999 before the High Court. Prior to proceeding to hear the said Miscellaneous Application, the respondent through Misc. Appl. No. 1074 of 1999 challenged the manner of making the application instead of originating the matter as a regular cause under the Civil Procedure. This court, decided that the applicant was justified to proceed in the manner he did because he was seeking the enforcement of his constitutional human rights. Subsequent to my ruling the present application Miscellaneous Application No. 928 of 1999 was allowed to proceed in the manner it was originated as explained in my ruling already on record.

After the said ruling both parties filed voluminous affidavits which were accompanied by several annextures. The process ensued in vigorous cross examination of the respondent's witness, Mr. Kagule Magambo, by the applicant's learned counsel. The respondent's learned counsel on the other hand did not cross examine the

applicant on his alfrdavit although he had initially tried to challenge the validity of his affrdavit in a preliminary objectron vide Misc. Application No. 1074 of 1999 which was rejected by this court whjle generally dealing with the objection on the procedure used to originate this application.

This present judgement is a result of the application under Misc- Appl' No. 928 of 1999 whereby Mr- Kabagambe sought to challenge the a,lministrative steps that resr:lted in his dismissal as r:nconstitutjona-i since tlrey offended Articie 42 of fi:le constitution of tJre Republic of Uganda 1995.

karned counsels for the app[cant Mr. Nester B1'amugisha and Mr' Yusuf Kagumire for ttre respondent sr:mmarised ttre facts ald er,idence of the application. They both were in agreement that no issues were framed. lramed counsel Mr. Yususf i<agrrmi-re conceded that issues for- consideration in any application a.re deterErined from the orders sought and the grounds containd in the appiication. The learned counsel proceeded to identify the issues before us as;

g,hetirer the decisions of the respondent rr'ith elfect from the fi1st appearance before the Board, up to the dismissal of the Apptcant on 6s May 1999 were .fair and just, r)

if not whether the aforesaid decisions or actions were null and ii) void for contravention of Article 42 of the Constitution and,

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whether the applicant is entitled to the reliefs sought. $iii)$

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The learned counsel representing the applicant on the other hand framed issues seeking relief for, infringement of his client's constitutional right to just and fair treatment in an administrative trial by the respondent and claimed that a series of the administrative decisions taken by the respondent to suspend and ultimately dismiss him were null and void. Further the applicant sought to be compensated for the constitutional infringement visited upon him by the respondent's acts. He sought for punitive damages including costs.

The applicant's learned counsel went on to submit that although the applicant did not seek compensation by way of general damages in the Notice of Motion, specifically, it is apparent from the affidavits of both parties that the matter was canvassed. Counsel pointed out such claims as contained in the affidavits and annextures thereto. These instances included complaints about libellous press and media releases which damaged the applicant's reputation. That the annextures also contained correspondences by applicant notifying the respondent of his option to take legal action whereby the respondents reacted by anticipating unfavourable consequences to U. E. B. The

learned applicant's counsel prayed that the court had a duty to frame issues since these were not framed during the trial. He was of the view that the applicant could amend the Notice of Motion to add another form of compensation by way of general damages. Learned counsel drew the court's attention to Order 6 Rule 18 Civil Procedure Rules and to several precedents or case law.

From the submissions of both learned counsels, representing the parties, it is apparent that they do not differ in their proposals of the issues to be framed although they concede that issues where not initially framed during the trial.

It is also important to note from the outset that both parties appear to have acknowledged that this court was empowered to frame issues at any stage including at the time of writing judgement. What is in contention, however at this stage, is whether the court could allow the applicant to amend the Notice of Motion to add his prayer for compensation by way of general damages at the time of making submissions as in this case.

There is no doubt that the law empowers this court to frame issues even at the time of writing judgement. What is in contention however is whether the applicant can be allowed to amend his pleadings at this stage, by way of submissions, as he purported to do. The application to amend relied on Order 6 Rule 18 CPR which gives discretion to

to allow amendments of pleadings at any stage of the court proceedings in such a manner and on such terms as may be just and necessary to enable it determine the real questions in controversy. The applicant wanted to amend the Notice of Motion by including compensation by way of general damages as one of the reliefs sought. It is my considered view that there is no need for the applicant to make the application. If the applicant is seeking general damages, as he purports, these damages are normally presumed by law to be a necessary result of the harm alleged. The plaintiff need not prove that he has suffered general damages. He only has to show that the defendant did the act forbidden by the law to succeed in his action and the court will automatically award him damages. Further more that these damages are meant to redress the inconvenience and discomfort suffered. This assertion is supported by a number of case law. The rationale for grant of damages generally is to compensate and not to punish. General damages arise by inference of the law and need not be proved and may be availed generally. The case of Robert Coussens versus Attorney General Civil Appeal; No. 8 of 1999 amplified the position of general damages as a matter for the discretion of the trial Judge. That the plaintiff or applicant cannot quantify those damages. I shall therefore treat general damages as a natural out come of an injury and therefore claimable by the applicant at any rate without adducing evidence to prove them.

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いいいい

In this particular application the applicant speCifically pleaded, in the Notice of Motidi, a claim for compensation for the infringement of his inherent fundamental Constitdtional rights in the form of punitive damages. He did not ciaim for general damages. i have, however expounded above that general damages need not be specificatly pleaded. q In any case Article 50 of the Constitution, which provides for enforcement of fundamental rights, states that any person who claims thar a fundamental or other right or freedom guaranteed under the Constitution has been infringed or threatened is entitied to apply to a competent court for redress which redress may include compensation. M:r' interpretation of the a-foresaid Constitutional provision is that a Consritutional infringement car} be redressed by compensation at the discretion of court. If the infringement has been proved it can automatica-ll5, be compensated in any way including general damages. It is therefore not necessary in my considered opinion to make any specific claim except for guiding couft in quantiiying damages because the court is empowered b5r ths Constitution to compensate for any infringement such as the one claimed in this application. I shaLl therefore ignore the application by the applicant's learned counsel's submission to amend the pleadings, at this belated stage in or\*der to include the prayer for conDensation b]r q'a., of genera-l damages, since this claim automaticall5' arises and is in consequence of the genera-l claim or appiication before court. If these general damages are not awarded the application under

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Articles 42 and 50 of the Constitution \*o.iiA USrr vern. The application for redress of a constitutional infringement includes compensation. Article 126 ol the Constitution also, enjoins courts to a warfl adequate compensation to victims of wrongs.

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i shall therefore proceed to examine the proposed issues framed by the parties, in their submissions, and adopt them or va.ry them accordingly because Order 13 of the Civil Procedure Act generally empowers this S, court to frame issues. Each materia-l allegation of a right to sue or <iefend becomes an issue. The allegations must be alfirmed by one party and denied by the other. Court is not required to frame an issue if the -defendant does not defend an allegation during trial. The court therefore fraraes issues from allegations made on oath by the parties or alry persons present on their behalf or made by their Advocates and from the contents of documents produced by either party among other things.

In this particular application, while taking into account the proposa.ls of the learned counsels in their submissions, I frarne the following issues to enable me determine and ascertain upon what material propositions of law or fact the pa-rties are at varialce and thereupon try to reach a right decision.

# Issues framed bv court:.

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- i) Whether the decisions of the respohdent with elfect from 18d September 1998 to 6ft May 1999 were ft.ir and just. - ii) If those decisions weF,g found irregular did they offend Article 42 of tle Constittttion of the Republic of Uganda 1995 and; S

ili) Whether the applicant is entitled to any relief sought.

I sha-ll adciress the above issues as categorica-ll-\, framed.

## Issae No.f

Whether the respondent's decisions u,ith effect from 18ft September 1988 to 6u I{a), 1999 were fair and just. To determine this issue i have considered the evidence on record as presented in the affidavits of the appiicant and the respondent, including the replies to cross examination b:- Mr. Kagule Magambo. I have a-lso scrutinised and examined the Annextures thereto.

The parties are at variance as to what acts constitute this issue. Whereas the respondent insists that court should only consider the aJlegation of wrongful dismissal on 6e May 1999 the applicant requires

cou!-t to^\*consider a series of events which were forced by adrninistrative "+t. irregu.laiities culminating in this dismissal. It is apparent that even at this srage of tria.l the respondent failed to appreciate that this court has already made a ruiing that the matter before it was an allegation of a Con stitu tiona] infrinsement visited upon the applicant through administrative irregularities by the respqJldent. Since it is not necessar]r to restate that ruling I shall ignore the respondent's state of denia-l and proceed to consider the series of acts that cuiminated into.the applicant's dismissal. This is because the applicant complained of infringement of a Constitutional right to a fair hearing. The wrongful dismissa-l should be envisaged to be an out come of such Constitutional infringement but not the cause of action. The applicarlt complained specifically whether the \_DIqE9SS taken to reach the ciecision of dismissa-l was fair ard just. Thht Anicle 42 of the Constitution entities a person to be treated justly and fair11- u'hile appea-ring before any administrdtive body.

For that reason this court will trace the traii of such events as thel' appea,r on record to enable it reach a just decision.

The applicant protested the forced leave on 18fr August 1998. On 24th August 1998 he received a written note requiring him to appea-r before the Board to answer charges of serious misconduct. He was required to appear on 25u August 1998. The applicant complained of the short

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notii'e ana doubted the authenticiry of the charge sheet which was un signedO-

He said he was not a-fforded a fair hearing. That he had not been given suffieient time to prepa-re for the hearing. He said that he did not know the basis of ttre charges and what evidence supported such charges and required an opportunity to cross examine the \ /itnesses. The applicant aJso objected to two Board members sal.ing they were biased. Finally he requested for representation by counsel. The respondent answered, in the letter dated 7Ol9/98, indicating that the Board was to proceed uncier Stalding Instruction No. 20 of the respondent's Standing I::st;:uction u,hich forebade legal representation. The same letter denied that charges would be based on Emest and Young Report. When eventually the meeting of 18e September 1998 commenced charges were reai. Before ansu'ering those charges the applicant requested that a v,'ritten record of the pi-oceedings be kept, he prayed for equitable treatment during the proceedings and for a copy of Ernest and Young Report which was aired on radib, TV and intemet.

He reiterated his objection to two Board members sitting during the headng or inquiry. He gave reasons wh5, 6. thought they would be biased. It is evident that the appiicart's prayers and objections were ignored.

Thereafter the proceedings began during which the applicant denied the charges r of causing hnancial loss, failing to adhere to payment prdcedures, faiting to keep proper summaries of banking and failing to adhere to procurement rules. The 18s September 1998 meeting was adjoirrned without .being given a definite date to resume. On 66 May 1999 another meeting, purported to be a continuation of the 18s Septeinber 1998 meeting, was held. The 56 May 1999 letter convening that meeting and summoning the applicant indicated that the purported charges were attached. The applicant was surprised because of the contradictions. He was awaiting the Board decision of the charges read tc him on 18u September 1998. The applicant's submissions indicate that he had appeared on 6e May 1999 "under protest". He protested the ir.-egular and unclear proceedings because it was not clear to him whether nerv proceedings or charges were to be preferred because earlier co:nmunication had indicated that the charges of 'serious misconduct did not arise out of the Emest and Young Report.

to hirn rendered his presence numb and immaterial. The respondent ?he respo\_ndent's-defence on the other hald was that the applica:rt was disr.rissed for insubordination when he refused to answer questions, teliing lies and failing his Cuties as the legal advisor. Further that the appijcant was asked to ieave because his refusai to arswer questions put

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justified his action to dismiss as not contravening Article 42 of the 1995 Constitution of the Repubiic of Ugarda. Defence counsel cited HWR Wade on Administrative Law where the author stated that acting fairly has u'ide implications and extends beyond the sphere of procedure. That it includes acting with substantia-l faimess and consistency and may not comprise with the whole domain of materia-l justice. But #et there should be honesty and that there should not be an)' bias and that there should be no need to disclose charges or give a hearing. Whereas I agree with the learned author on issues such as relaxing procedures in administrative hearings, to prevent them being bogged down u,ith procedural orders and rules I believe that such trial should be subs:antially fair, consistent and without bias. lf the charges are not bSS.., or d.isclosed or a hearing given I find it hard to believe that the aciministrative hearing u'ould be considered fair.

A review of the evidence and submissions of both learned counsels recresenting the parties indicates, in my considered opinion, that the applicant was no fairly treated. A careful analysis of the above outlined events show gross ihsensitivitl, 19 the rules of natura-i justice. For example the charges were ambiguous and inconsistent. Letters summoning the applicant for hearing were most times abrupt. The applicant was not allowed counsel despite the fact that the respondent retained an advocate u'ho allegedly gave iive and instant advise during

the meeting. Alt appears that the Statutory quorum was not realised during a meeting where one member did not attend and another walked out in protest because he felt the applicant was being unfairly treated. While the 6th May 1999 meeting was said to be a continuation of the 18th September 1998 meeting, the $18/9/98$ meeting dealt with serious misconduct under Standing Instruction No.20 while the one of 6th May 1999 introduced other charges including a Report by Ernest and Young yet the applicant had not been afforded an opportunity to be heard while the report was compiled. It is evident that the applicant was dismissed for giving false evidence to category A charges on 18th September 1998 and walking out of the Board meeting on 6th May 1999. Did the applicant utter false evidence or did he give a defence? According to the letter of dismissal he was accused for uttering false evidence. But what is interesting to note is that the letter indicated that the "Board had found the charges proved" and "had no alternative but to dismiss when the applicant walked away". This is an indication that the Board had already found the applicant guilty without being heard and without giving him sufficient time to prepare and appear with his lawyer as he had requested.

If indeed these proceedings were under Standing Instruction No. 20 of the terms and conditions of service the Board should have complied with the regulations thereunder.

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Clause 22 of those Standing instructions No. 20 refers to suspension fror: duty without pay:until investigations are over in cases of serious misconduct. The Standing instructions emphasise compliarce with natural justice during investigations including a right to be heard and an investigating oflicer not to be biased. ffrat dismissa.l could only occur if the employee is guilty of serious misconduct. This could resuit in surnmar]' dismissa-l. In the absence of suflicient evidence after investigations by the Board the employee will be reinstated and be paid full wages. Did the respondent oblige with the contractua.l terms and conditions of service? ln their letter of dismissa-l the Managing Director sta.ted that the applicant had uttered a fa.lse defence. That subsequentll, the applicant had refused to aaswer in the absence of his lawyer and wa}l:ed out of the meeting. That since the Board had found the charges pro'r'ed the walking awav of the appljcant left them with no a-itei'native but to dismiss him. These sentiments had a.lso been expressed soon a-fter the meeting by the Board members. lt is important to ana-iyse the situation as it unfolded and in particular whether the purported Crsmissai complied with standing instruction No. 2O which governed disciplinary procedures. Was the evidence against the applicant sufficient as required by the regulations of the Standing Instruction No. 20? Appa.rently not. The evidence allegedly contained in Ernest and Young did not pin down the appeliant expressly. Even if it had done so

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the method of gathering the information apDea-rs not to have hea-rd the applicant's story and \*need for clarification or cross examination where need be. Standing Instructions No. 20 states that a dismissa-l would only ensue a-fter a conrriction arrived at is in compliance with a natural justice including a right to be heard by an unbiased investigating oflicer. This does not appear to have happened. The applicant was only availed the report a-fter 186 September 1998. Charges were read on 18ft September and he denied these charges without having been provided rvith the report implicating him and being given an opportunity to cross exarnine the witnesses ard scrutinise the source of information. These anoma-lies contravened natural justice. It was unfair to say that the appiica.:rt\*told iies whereas he denied the charges simpiy because thel' u,eie unsubstantiated. The Ernest and Young Report was speculative and dii not specifically pin the applicant as the sole culprit. The resoondent's submissions state that the applicant as a iegal officer abused his position by failing to detect the flouting of the regulations. T-nar Ernest and Young Report had indicated that procurement regulations particularly prepa-ration of bank summaries were flouted by ofircials inciuding the appiicant without axy action from the appiicant t'ho vgas a legal officer. It is not proved whether the appiicant acted in a crirrinal manner or rlr'as simply negligent. He was not afforded an opportunity to clear this allegation. As to r,r'hether the appiicant repudiated his employment contract when he refused to arswer the

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chdlges, the answer to that question depends on whether natura.l jy,stice . was b-fiorded him. The applicant clearly stated that on 6s May 1999 he appeared in protest as he was not afforded the opportunity to appear with counsel and yet the respondent did. The respondent intimated that since the charges had been proved the walking a way of the applicant left them with no alternative but to dismiss him. It is not clear how the respondent had found the appiicant guilty in view of the fact that he had not been heard by them.pr Ernest and Young while investigating. The \*.' repoi-t said that the application had failed to detect not that he intentionaliy flouted the regulations. But even this finding was not made after the applicant was heard as required by natural justice. The letter of dismissal further stated that since the charges had been proved against the applicant the respondent had no\*?lternative but to dismiss him. It is clear that the applicant walked out when he realised that no justice would be extended to him. This view is supported bl' the expression of the respondent that the charges were already proved. This begs the question why hE ivas summdneA on 6s May 1999'when chages \$,ere a1read1, a.llegedly proved. What role would he have justifiably played in such situation where. the Board appea-rs to have been already biased? Can we fault the appiicart for acting dumb and mute and eventuallv v"'aiking away? It is obvious from the circumstances gathered from the record that the principles of natural justice wele grossly flouted b5, the

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respondent despite the fact that those similar principles have been concretised in Standing Instruction No. 20.

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It is rny considered opinion that a fair hearing would have afforded the appiicant an opportunitl' to clearly know the charges and respond to rhen. What happened on 18th September 1998 did rot amount to giving fa-ise evidence. The applicant in fact asked to be given the Ernest and Young Report to Iind out their source of evidence and to be able to cross examine any witnesses. A scrutiny of the applicart's alswers indicated that he denied the charges and requested for proof. It is not correct to say Lqat he therefore told lies. Secondiy since Staading Instruction No. 20 provided for a detailed procedure to be foliowed, this should have bben strictly follou,ed. Deviating from it amounted to breaching a con:iactual term of emplo5"rnent since these Starding Instructions were established procedure agreeci upon. They governed the relationship betr,r'een the parties and became part of the main contract oafter having beer formuiated and agreed upon.

applicant on the first issue. I; the above circumstances i have no alternative but to find for the

+ I therefore hold that the,decisions of the respondent from 18u September 1998 to 6s May 1999 were not fair and just.

tp o The ultimate dismissal of the applicant was grounded on u'rong procedures.

## Issue No. 2

Wnether the resoondent's decisions offended Article 42 of the of the Republic of Usanda 1995. Having found the i-espondent's decisions irregular it is obvious that they offended Article 42. The articie demands that people appearing before an administrative heaing be treated lairly. I have exhaustedly exposed in issue No. I that the process adopted by the respondent was grossly flawed and ultra vires. in nature. It did not accord the applicant a fair hearing. In Ir{iscellaneous Appiication No 1074 of 1999 I did hold that the applicant's griera-nce or application belore this court uras for the violation oi a constitutional right. i dismissed the respondents' claim that the Constitutional Court pa.ties) had held that the matter was about u'rongful dismissa-l. The Iionourable justices said, "on the facts available one cannot rule out u'rorgful dismissal. Tt\$\*is a matter dealt with by specific laws." It is cleai that there was no conclusiveness in that statement. They only siared that, "on the avaiiable facts one cannot rule out wrongful disrrissal". The available'lfacts may have been scanty for their Lordships Cor stitution in Petitlon No.2 of 1999 (between these same

to make a conclusive decision or determination without fiiftj,.r evidence. It would be premature to reiy on that judgement to conciude that the matter was precisell, about wrongfui dismissal. in any case the same Constitutiona-l Court had aJso stated that, "the a-lleeations that are said to have constrtLrted the u nlair arld uniust treatmeEt ate contained in the Petition. These had been exemplifred and elaborated in the Petitioner's a-ffidavit in support'. The Honourable justices continued to say that, "issues are therefore joined between the petitioner and respondent. The resolution of these issues do not require interpretation of Article 42 and for that matter any other provisions of the Constitution'. The Constitutional Court appears to have framed the issues between the pa-.-ties when the5, referred to "the exempiified and elaborated allegations in the Petitioner's pleadings which had been denied by the respondent'. Tnat these issues needed resolution and not interpretation. Thus this rxatter carne to be iraadied by this court.

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ir is not in dispute that the applicant in this application was dismissed bi' the respondent. What is in issue is that the applicart's cause of action was originated under a Constitutional complaint under Article 42 of the Constitution of the Republic of Uganda because Article 42 gua-rantees the right .tp, a just and fair reatment in administrative decisions. This right cannot be derogated according to Article 44. in which case if inlringed it cannot be rectified by applying inferior laws.

Thus Article 50 of the Constitution empowers any aggrieved person to apply to a competent court to claim for his rights under Article 42 and to be compensated. It is importaat to clarify that this appiication was not referred to this Court by way of reference under Article 137 of the Constitution. That Article empowered the Constitutional Court to interpret aJter which it makes a declaration as well give redress where appropriate. In other cases where a declaration is made by the Constitutional Court then it may refer the matter to the High Court to investigate and determine appropriate redress. Therefore I am of the opinion that the application before court is a fresh appiication principaJil, claiming redress for an infringement of constitutiona,l rights. Naturally that the appiicant was not afforded a fair ald just treatment whiie appea:-ing before an administrative tribunal. Apart from presumably attempting to frame the possible issues between the parties in Petidon No.2 of 1999, with due respect, that judgement did not inhibit this court to proceed to hear this present application 928 ot 1999 as brought under Arricle 42 of the Constitution of the Republic of Uganda. I have alread5, aiiuded to the fact that the Constitutional Court ousted itself of junsdiction and did not make a conclusive deternrination of the issues. ]t is rny considered opinion that the statements in that judgement, u'ith ciue respect, are of persuasive but not of precedential va-lue since they l'ere not based on substantial evidence. In those circumstances I find

for the applicant and hold that the dismissal infringed the constitutional rights of the applicant.

I therefore will proceed to address the appropriate remedies under *issue* **No.3** whether the applicant is entitled to any relief sought.

The applicant in his pleadings specifically sought the following reliefs;

- A declaration that the series of the administrative decisions taken $i$ against him were null and void, - $ii$ Compensation in form of punitive, - Damages and, $iii)$ - $iv$ Costs.

I have already found that the administrative decisions taken by the respondent against the applicant contravened Article 42 of the Constitution. It follows therefore that those actions were null and void. Article 44 of the Constitution makes the right to a fair hearing non derogable. This is to say that it cannot be subjected or subordinated to any other law. As rightly submitted by the applicant's submissions "the court would have no discretion to quash or not to quash. It can only declare the decision to be a nullity that which in law has never been done at all". Therefore the appellant is by law taken to have never been

disturbed from the position he held as Board Secretary. Therefore the actions of the respondent with effect from 18e September 1998, 6th May -1.999 to date were of no effect as they have been held as null and void. 'Standing Instructions No. 20 states that, in the absence of sufficient er.'idence after investigations by the Board the employee will be reinstated a.rrd be paid full wages'. The applicant does not seem to seek reinstatement and the court considers that such action is not in the interest of both parties due to the apparent incompatibility arising out of the trauma of having had to go through the proceedings of this case. In such circumstances the applicant will be entitled !9\_f\_q]]\_qe!9!5 artd \_ entitiement as if nothing ever happened. He is therefore entitled to terminal benefits without any financial consequences arising from the void suspension and dismissal he suffered from 18b August 1998 to date. This is because the appellant was exciuded from performing his duries through a nullity that deprived him of his livelihood and caused fti:l grcat damage.

Apart from the above declaratory order and restitutional damages or cocrpensation in the form of full terminal benefits the applicant sought Ic: cunitive damases. The applicalt's punitive damages are grounded on tre fact that the respondent was insensitive to the unfavourable consequences that could occur if the applicant took legal action aga.inst them. The respondent anticipated that the damages payable would be

"v iess than the financial loss of U. Shs 2.0 billion allegedly caused by the applicant's former malpractice. The respdndent does not appear to have mitigated in his pleadings or submissions the damages which apparentll, he iqas prepared to pay despite any legal consequences. Punitive through high handedness. They are also meant to cure or compensate for tortuous injuries arising out of a breach of contract. In this case when the respondent wrongfully dismissed the applicant he pubiished libellous innuendoes which he has not denied. I ward punitive damages oi U. Shs. 15 million (fifteen million). The evidence on record indicates elernents ol high handedness by some Board members and total disregard for the applica-nt's rights and feelings. damages are said to be more than compensatory in nature. They are rneant to cure deiiberate and repeated disregard of the applicant's rights

> As icr the Genera,i damaqes I ta-lie into account the fact that the appiicant u'ill be fuliy compensated for the injur5, caused through terrninal benefits ordered by this court. lnstead of the substantia-i rEi general damages of Shs. 100 milliorf sought I award 1O million as general danages. Plus costs of the suit and interest at court rates.

> Having made the above decisions I wish to conclude by stating that I have considered the cases whereby it was contended that wrongful dismissal had to be contested through regular labour laws. In the

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present application before court the applicant sued for the contravention of his Constitutional Rights. The right under which he proceeded is non derogable. This right cannot be subservient to ordinary labour laws in particular because those laws were made before the coming into force of the 1995 Constitution which was specific about the non derogatory nature of the right to a fair hearing. Secondly if the applicant proceeded under wrongful dismissal he would suffer financial consequences involved in dismissal rather than termination with full benefits. The applicant would not be adequately compensated in an ordinary dismissal whereas in a termination which is void he would be entitled to full terminal benefits since the dismissal was not only wrongful but arrived at unconstitutionally. This constitutional contravention could only be adequately compensated through an application such as this one. I therefore distinguish this application from the precedents cited.

ANNA MAGEZI JUDGE.

Im. April 21 par Jer Pap. Diesem. Im. ferdam fare Jer African breven.

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## REFERENCES

The Constitution of the Republic of Uganda 1995. 1.

- The Judicature Statute 1996. $2.$ - 3. The Civil Procedure Act 1929.

## **CASES**

- Constitutional Petition No. 2 of 1999. $1.$ - D. D. Bawa Ltd versus G. S. Didah Sing (1961) E. A. 282. $2.$ - Moses Kisige versus Muzakamu Botalewo (1981) HCB 67. 3. - Southern Highland Tobacco Union Ltd. Versus M. C. Queen (1960) $4.$ E. A 490.

$\mathscr{R}_{\mathbb{S}}$

- Addis versus Gramaphone Co. Ltd. (1909) AC 488 5. - Uganda Air Lines Corporation (1984) HCB 39. 6. - $7.$ Vidyodaya University of Ceylon and Others versus Silva 1964 3 All $E. R.$ - Esso Standard (U) Ltd. And Semu. 8. - Amanu Opio (Civil Appeal No. 3 of 1993) Supreme Court. 9. - 10. *NIC versus NUCCPTE* (*Misc. Application No. 112 of 1992*)

including a host of other cases cited in the pleadings.