Kasekende v Umeme Limited (Civil Suit No. 0947 of 2005) [2013] UGHC 268 (31 October 2013)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA CIVIL SUIT NO. 0947 OF 2005**

# **KASEKENDE ARISTARCO PLANTIFF VERSUS**

**UMEME LTD DEFENDANT**

### **BEFORE: HON. LADY JUSTICE ELIZABETH MUSOKE**

#### **JUDGMENT**

The plaintiff's claim against the defendant is for breach of an employment contract; a declaration that the plaintiff's employment was wrongfully and unfairly terminated; general damages for wrongful dismissal; interest and costs of the suit.

The background of the plaintiff's claim is that on 9/08/2005, while working as the Principal Accountant in the Revenue and Treasury Management section at the defendant company, he received a memo from the Finance Manager alleging grave misuse of motor vehicle No. UAA 365E. He was eventually unlawfully dismissed from his employment on 28/09/2005.

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The defendant denied liability, stating that the plaintiff's services were legally and lawfully terminated as a result of having misused the company vehicle outside office hours and claiming false mileage for his personal purposes.

At the scheduling conference the parties agreed that:

1. The plaintiff was an employee of the defendant from 10/2/2005, as a Principal Accountant.

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2. His services were terminated on 28/09/2005.

#### **Issues:**

- 1. Whether the plaintiff's termination was lawful. - - 2. Remedies available to the parties, if any.

It was the plaintiff's testimony that he received <sup>a</sup> memo stating that he was accused of grave misconduct with regard to the use of motor vehicle No. UAA 365E. The memo stated that the plaintiff had travelled to Gulu using the said vehicle yet he had been given mileage allowance and had used the vehicle for personal use outside working hours. In his response, the plaintiff had stated that he did not travel to Gulu during the period so mentioned with the alleged vehicle, as the same was actually at Victoria Motors garage at the material time.

He went on to testify that on 26/08/2005, the Human Resource Manager wrote to him informing him that he was required to appear before the Disciplinary Committee on 1/09/2005 at 2.30pm, to give his oral defense in respect of charges which were raised by the Finance Manager in a memo dated 9/08/2005. He was also expected to clarify on the issues surrounding the case. He indeed appeared for the hearing and denied the allegations labelled against him.

The Disciplinary committee carried out further investigations and on 5/09/2005, the Human Resource Manager wrote to him inviting him to appear before the Disciplinary Committee again. He then appeared before the same Committee on 19/09/2005 to which a report was presented by the Manager, Department of Confidential Investigations, (DCI) to the Committee.

It was also the plaintiff's testimony that on 22/09/2005, he received <sup>a</sup> telephone call from the Chairman, Disciplinary Committee and the Chief Finance Officer that Management had decided to dismiss him from employment although he had an option to resign. He however intimated to them that he could not resign since he was innocent, and that he ought to be reinstated to his position.

**2.^** The plaintiff further testified that on 28/09/2005, the Human Resource Manager called the plaintiff and informed him that Management had decided to terminate his services. On 11/07/2006, he was presented with cheque No. 701800 worth Shs. 350,000= as repatriation allowance which he refused to receive. He made a host of claims including loss of revenue,

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disconnection of electricity at his home among others. He conclusively invited court to award him the prayers as laid out in his plaint.

In cross examination, he stated that he never used the vehicle on the date he was alleged to have used it. It was also his testimony that much as he was dismissed from employment in 2005, he started working with NEMA in 2008 although between then he did some consultancy with the Government.

For the defendant, Mr. Hassan Mugerwa, the Manager, Umeme Ltd concurred with the plaintiff's testimony in as far as the Disciplinary Committee meeting sittings were concerned and the eventual report. He further testified that much as the plaintiff was required to travel to Lira between 25th-27th July 2005, he did not but instead travelled on 3/09/2005 long after the investigation into the matter had commenced, and without any authority from his immediate supervisor. He also testified that the cash verification document adduced by the plaintiff before the Disciplinary Committee as proof of work done in Lira on 26/07/2005 was a false one. The plaintiff also abused company vehicle Reg. No UAA 365E placed under his custody when he failed to account for the weekend mileage travelled between 22-25/07/2005 which conduct amounted to unauthorized use of Umeme assets under the Discipline and Performance at Work Policy and Procedure Manual; which was punishable by dismissal without notice or payable in lieu of notice.

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In cross examination, the defendant witness stated that between 22/07/2005 and 25/07/2005, the vehicle No. UAA 365E was in Victoria Motors as per the records supplied and that much as the plaintiff did not go to Lira and Gulu during the scheduled time, he went there at a later date and did not request for more money from the trip. He also stated that on 22/7/2005, the vehicle was used by a one Mathias Tumushabe who went to Jinja with it.

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I now turn to the issues raised by the parties.

## **Issue 1:** Whether the **plaintiff's termination was lawful.**

*2?* Mr. Twarabireho, Counsel for the plaintiff contended that whereas notice and the nature of the charge against the plaintiff was communicated to him in an internal memo from the Finance Manager requiring the plaintiff to answer charges, in as far as it was alleged that he had misused company vehicle by travelling to Gulu with the said vehicle yet he had claimed mileage allowance; the defendant at the hearing diverted from the same and instead tasked the plaintiff to explain whether he had travelled to Gulu and Lira as it had earlier on been scheduled. Counsel therefore submitted that the Disciplinary Committee breached the provisions of Article 28 (3) (c) of the Constitution in as far as the plaintiff was not given sufficient time and facilities for the preparation of his case i.e. the charge that was introduced at the hearing. He thus maintained that it was wrong for the Disciplinary Committee to convict the plaintiff of charges that had not been labelled against him. -

Furthermore, the plaintiff stated the reason as to why he did not go to Gulu and Lira on the scheduled, days. This was to the effect that the surprise visits had been known by the staff at those stations such that hisgoing there on the scheduled days would have defeated the purpose of the visit. He merely rescheduled the visit to the said stations so as to carry out the surprise cash count exercise, a purpose he actually achieved..

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Turning to the failure to account for the weekend mileage (22/07/2005 to 25/07/2005, during the Disciplinary Committee proceedings; the plaintiff requested that the Finance Manager and Tumushabe be called for cross examination so as to ascertain .the truthfulness of the allegation. The vehicle was indeed under his control, but the right to cross examine was denied. It is also contended that the mileage referred to on the job card was for a different vehicle maintenance order No.00885 of 22/07/2005 which was already travelled and could not be attributed to the plaintiff as it was based on wrong documentation; the mileage of 184455km was covered by the weekend of 23rd - <sup>24</sup> July, 2005. The plaintiff during cross examination stated that the vehicle was used by a number of people and that the fuel card was kept in the car and since it was not under his direct control, he could not know who had used it and at what point. The Disciplinary Committee should have been more cautious when receiving evidence.

In the instance, counsel maintained that the plaintiff was unlawfully terminated from employment.

In reply, counsel for the defendant submitted that the alleged new charges were introduced at the 1st Disciplinary Committee meeting where the plaintiff had been present. Having required further investigations, these charges were then discussed in the 2nd meeting of 19/09/2005 in the presence of the plaintiff. It is on this basis that counsel contended that since the plaintiff attended the first meeting during which the charges were revised, he could not therefore claim that he was condemned unheard and without giving him adequate time and facilities for preparation of his case; after all most of the issues arose from his defence.

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The plaintiff did not visit Gulu on the scheduled time but clandestinely visited the station after the 1st Disciplinary Committee meeting had been held, merely as a cover up having realized that things were getting out of control.

Turning to the charge of misuse of the company vehicle, counsel . contended that whereas written permission was required from the Finance . Manager as per Umeme Motor Vehicles, Computers, Tools and Equipment Management Policy; it *seemed* the Finance Manager had delegated his supervisory role regarding the vehicle in question to the plaintiff. The plaintiff was on that basis answerable to Management about the deployment of the said vehicle and fuel consumption from July 19-29, 2005. the plaintiff omitted to maintain a log book/ movement book that would be used in monitoring the movement of the vehicle in accordance with the company Regulations. In the instance, counsel maintained that the plaintiff's dismissal from employment was lawful and justified.

In rejoinder, Mr. Twarabireho contended that there was no evidence to prove delegation of the supervisory role/ power in regard to the vehicle from the Finance Manager to the plaintiff. The language used in the memo addressed to the plaintiff by the Finance Manager alleging delegation could not be relied on as amounting to delegation. Additionally, the mileage coverage relied on by the defendant was based on <sup>a</sup> wrong document. It could therefore not be attributable to the plaintiff in absence of any evidence.

I have looked at the internal memo dated 9/08/2005 entitled *'Grave Misuse ofMotor Vehicle uaa 365?.* There is no doubt that it was this memo that the set the plaintiff's grievances into motion. It clearly stated the charges labelled against the plaintiff before any disciplinary action could be taken, that is to say;

- a) Using the company vehicle for personal purposes outside office hours. - b) Travelling to Gulu using company vehicle yet he had claimed mileage allowance.

The plaintiff was required to provide written explanation as to why disciplinary proceedings should not be instituted against him. In another, memo dated 11/08/2005; the plaintiff gave his written response stating, circumstances under which he was to use the vehicle in issue; reason why he had not travelled as scheduled and the circumstances under which he had claimed mileage allowances.

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*/S* 1^ The defendant wrote another memo to the plaintiff dated, 26/08/2005 entitled *'disciplinary hearing'* wherein reference was made to the earlier memo; requiring the plaintiff to appear before the Disciplinary Committee on 1/09/2005 to present his oral defence and also clarify on any other issues relating to the case that might enable Management to take a conclusive decision. This memo was however only received by the plaintiff on 31/08/2005 at 8.00am. The defendant in his earlier memo had no doubt, complied with the pre-requisites to a fair hearing; he however lost it when he required the plaintiff to respond to any'*otherissues relating to the case that might enable Management to take a conclusive decision.'* There was no way the plaintiff could have envisaged the charges within the ambit of 'any other issue'. Much as Department of Confidential Investigations (DCI) had not found the plaintiff guilty of the charges; the Disciplinary Committee framed 3 charges from the DCI findings, that is to say;

- a) Misuse of company vehicle; - b) Failure to carry out instructions to report to Gulu and; - c) Failure to return unutilized mileage allowance; and the plaintiff

was required to answer those charges right there.

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These were the charges that led to the plaintiff's dismissal from employment.

It is inconceivable that the plaintiff would have had sufficient information necessary to appreciate the nature of the accusations or charges that were unknown to him before the proceedings (dated 01/09/2005) commenced;, he did not have an opportunity to prepare his defence and effectively answer the new charges.

The right to <sup>a</sup> fair hearing is a fundamental right enshrined in Article 42 of the Constitution of the Republic of Uganda. Any administrative body or. tribunal is expected to observe and uphold this right which flows from the rules of natural justice that require that a person cannot be condemned unheard, that is to say, *AudiAlteram Partem.* This rule embraces the whole notion of fair procedure and due process; thus a decision reached in contravention is a nullity. The right to fair hearing is exercisable where a person affected has been availed with all or sufficient information necessary to appreciate thenature of the accusation or charge, the statement of facts in support of any such accusation or charge; an opportunity to prepare and answer the charge effectively. The affected person should have reasonable notice as to time and place where he is required to attend in regard to the charges. See *Juma & others Vs AG (2003) EA 461.*

In the instant case, the plaintiff was *acquitted*of the charges that had been officially labelled against him as per the DCI report. He was however convicted and eventually dismissed from employment on a charge, alien to the charges he was notified of.

In the instance, I concur with the plaintiff's counsel that it was wrong for the Disciplinary Committee to convict the plaintiff of a charge that had not been put to him before the hearing.

Without prejudice to the foregoing, whereas the plaintiff made a request to the Disciplinary Committee to allow him cross examine the Finance Manager and one Tumushabe, he was denied the opportunity to do so. The legal position in regard to cross examination is that no evidence affecting a party is admissible against that party unless the latter has had an opportunity of testing its truthfulness by cross examination. The denial of the plaintiff the right to cross examine his accusers was, therefore, prejudicial to his case. It denied him the right to <sup>a</sup> fair hearing.

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In the circumstance, I find that failure to observe the principle of natural justice and the *Audi Alteram Partem* rule rendered the resultant termination wrongful.

I so hold.

## **Issue 2: Remedies available to the parties,, if any** *&*

Counsel submitted that the plaintiff is entitled to the remedies as sought in the plaint for having been wrongfully terminated. He stated that the object

of an award of damages is to give the plaintiff compensation for the damage, loss or injury suffered; *{Robert Coussens Vs AG SCCA No 8 of 1999).* He claimed Shs. 85milllion shillings as special damages arising from loss of salary from the time of dismissal from employment till the time he got alternative employment, that is to say, from 28/09/2005 till 5/02/2008. He claimed Shs. 50 million as general damages to compensate for the anguish, embarrassment and 'injured feelings to the plaintiff. In the circumstance counsel invited court to grant interest on the pecuniary claims and costs for the suit.

In reply, the defendant submitted that the plaintiff's employment was properly terminated following a fair disciplinary process. A month's salary was offered to the plaintiff in lieu of notice as well as a repatriation allowance but he declined the offer.

Counsel further submitted that the plaintiff ought to have mitigated his loss after termination of his employment by seeking alternative employment elsewhere as soon as possible and not after 3 years as he did.

Although the plaintiff made a host of claims, he neither substantiated them nor led any evidence as to their truthfulness; these claims were thus merely speculative and ought to be rejected by court. Counsel, therefore, invited court to dismiss the suit with costs to the defendant.

In his submissions in rejoinder, Mr. Twarabireho reiterated the prayers in the plaint and contended further that much as the plaintiff tried to mitigate his loss by seeking alternative employment, he was not successful until 3

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years later. He also stated that all the hardships that resulted from the unlawful termination were disclosed. The plaintiff denied ever being offered salary in lieu of notice by the defendant. He thus invited court to grant the awards as prayed for in the plaint.

It is <sup>a</sup> long standing principle that special damages must be strictly proved but they need not be supported by documentary evidence in all cases. I should, however, say that it is the exception rather than the rule. It is <sup>a</sup> more lenient approach adopted by the courts to allow special damages to be proved provided the existence of such claim is clear from the pleadings. But, as said by Saied, Ag. CJ (as he then was) in *Semukima Vs John Kaddu [1976] hcb 13,* such leniency should not call for laxity in pleading and proving special damages. In my view the safer approach is that special damages must be pleaded and strictly proved: *John ELetu Vs Uganda Airlines (1984) h.c.b. 39.* Where documentary evidence is not forthcoming, the plaintiff should be able to lead oral evidence in support of his pleadings or else be contented with an award of general damages.

In the instant case, it was stated in paragraph 4 a) of the plaint thus;

## *PARTICULARS OFSPECIAL DAMAGES*

*a) Loss of monthly salary and other amenities of the job since 28/09/2005 Ushs. 3,000,000 (Three million shillings)*

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On the other hand, it was submitted that;

*"The plaintiff was terminated on 28/09/2005 and he never got any employment until 5/02 2008. He is entitled to receive his salary ofshs 3,000,000 for thatperiod which is aroundshs 85,000,000."*

In his contract of employment, the plaintiff's consolidated salary was stated in paragraph 2 thereof as being **Shs. 2,994,210=** per month. No evidence has been led to prove how the alleged **Shs. 3,000,000=** as salary arose. The figure of *around shs. 85,000,000* =is merely speculative contrary to the principles with regard to damages of this nature. In the instance, the claim for special damages was never proved strictly as the law requires.

Suffice it to add that the right of the employer to terminate the contract of service, whether by giving'notice or incurring <sup>a</sup> penalty of paying, compensation in lieu of notice cannot be fettered by the courts. Given that compensation for the unlawful termination of an employee is confined to the monetary value of the period that was necessary to give proper notice of termination, which was done in the instant case as per annexture 'K', the repatriation 'allowance and payment during the time he was on suspension; the plaintiff has not proved any entitlement for award of special damages beyond what the defendant offered to pay him.

The claim for special damages'must therefore fail.

Without prejudice to the foregoing, It is trite that <sup>a</sup> dismissed employee is entitled to recover the arrears of salaries due to him and the benefits that have accrued to him for the completed period of service. See *Tommy Otto* Ks *Uganda WildlifeAuthority HCCS No.208 of2002.*

The plaintiff is thus entitled to a repatriation allowance, salary for the time he was on leave and the one month in lieu of notice.

As regards general damages, learned counsel for the plaintiff has submitted that the plaintiff has been greatly subjected to pain, mental anguish, immeasurable inconvenience and embarrassment.

In the instant case, the plaintiff was a senior member of staff at the level of Principal Accountant in the Revenue and Treasury Management section. His services were wrongly terminated. He was denied a fair hearing in regard to the charge that led to his dismissal, it is in my view just and fair that he is awarded general damages for that error of judgment on the part of the defendant. <sup>I</sup> consider'an"award of Shs. 10,000,000/= (Ten million only) as general damages.

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Interest shall accrue on the plaintiff's award of general damages at the rate of 25% per annum from the date of judgment till payment in full.

In the result, judgment is entered for the plaintiff in the above terms against the defendant as follows:

- i) A declaration that the plaintiff was wrongly terminated from employment. - H) Shs.10, 000,000/= (Ten million only) as general damages. - iii) A declaration that the plaintiff is entitled to payment of cash in lieu of one month notice; repatriation allowance and salary including the benefits that accrued at the time the plaintiff was on suspension. - iv) Interest on general damages at the rate of 25% per annum from the date of judgment till payment in full. - v) Costs of the suit.

It is so ordered.

**Elizabeth Musoke**

**JUDGE**

31/10/2013