MTN (U) v Ndemirweki (Civil Appeal No. 291 of 2016) [2023] UGCA 99 (17 March 2023)

Full Case Text

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

# [CORAM: ELIZABE1H MUSOI(E, MVZAMIRU KIBEEDI, CHRISTOPHER GASHIRABAKE, JJAI

## CIVIL APPEAL NO.291 OF 2OL6

(An Appeal arising from the Judgment of the Industrial Court of Uganda in Labour Dispute Claim No.lO1 of 2014 dated l/ttr psssmber 2015 deliuered by the Hon. Chief Judge Asaph Ruhinda and Hon. Judge Linda Lillian Tumusiime)

# 10 MTN (U) LIMITED: : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : APPELLANT

#### VERSUS

## RICHARD NDEMIRWEKI: : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : RESPONDENT

# JUDGMENT OF CHRISTOPHER GASHIRABAKE, JA

# Introduction

15 This is an Appeal from the Award of the Industrial Court at Kampala before Chief Judge Asaph Ruhinda Ntengze, Hon. Judge Linda Lillian T\rmusiime and Panelists Mr. Frankie Xavier Mubuuke, Mr. Anthony Wanyama and Mr. trbyau Fidel rn LD lC 1O 1 of 2014.

#### BACKGROUND

20 The facts as accepted by the Industrial Court are set out below

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The Respondent was employed by MTN Publicom as a Technical Assistant on a gross salary of 879,OOO f :. After an appraisal, his salary was increased to Ug Shs 993 ,2231:. His major responsibilities included collection of pay phones from stores, installing them in various places and collection of the phones boxes that were full and delivery of the full boxes to the coin room for verification.

On 27Lh May 2005 he received a suspension letter inviting him to attend a disciplinary meeting to answer charges of;

- a) Attempted theft of coins. - b) Attempted fraud relating to unamthorized removal of coins from company payphones. - c) Causing financial loss to the company relating to unauthorized removal of coins from payphones.

On 30th of May 2005 he filed a written statement of defence to the allegations denying the charges and on the same day appeared before a Disciplinary Committee where he denied the charges. He was found guilty of causing financial loss and was dismissed and later arrested and detained on charges of ernbezzlement. He contended that the dismissal was illegal, wrongful and prayed for both special and general damages. 15 20

MTN Publicom ceased operations on the 28th of November 2007 and on 3l"t May 2008 its assets and liabilities were taken over by MTN (U) Ltd the Appellants. MTN (U) Ltd denied liability and asserted that the Respondent was lawfully dismissed on reasonable suspicion. They raised a preliminary Objection on the grounds that the matter

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was time barred and the Respondent had not raised a cause of Action against MTN (U) Ltd. The court made a decision on the preliminary objection. It found that the case was not time barred and that MTN (U) Ltd was the right Respondent having taken over MTN Publicom. After hearing evidence and submissions from the parties the Industrial court held that;

- i. The Respondent 's dismissal was unfair and unlawful; - ii. The Respondent was entitled to one month's pay in lieu of notice of Ug Shs 933,3381= at an interest rate of 25o/o per annum from the date of dismissal till the date of Judgment. - iii. That the Respondent was entitled to General Damages of Ug Shs 60,o00,000/:. - iv. The Respondent was entitled to exemplary damages of Ug shs 80,000,000/: - v. That the Respondent was entitled to costs of the suit. The Appellant, being dissatisfied with the decision of the Industrial Court lodged this Appeal. 15

### GROUNDS OF APPEAL

The following are the grounds of Appeal in this matter;

1) 'The Industrial court erred in law when it failed to determine an issue that had been agreed upon at scheduling but no Ruling or Judgment was passed or made by the court. 20

- 2) The Industrial court erred in law and in fact when it held that the Respondent's dismissal was in breach of the contract of employment and was therefore unlawful. - 3) The Industrial Court erred in law and fact when it held that there is no difference between wrongful dismissal and unlawful dismissal. - 4) The Industrial court erred in law and fact when it held that the Employment Act,2OO6 was applicable to the dispute and not the repealed Employment Act, Cap 2L9 - 5) The Industrial court erred in law and fact when it awarded the Respondent one (1) months .notice of Ug shs 933,338/= at an interest rate of 25o/" Per annum from the date of dismissal until the date of Judgement. - 6) The Industrial court erred in law and in fact when it awarded the Respondent General damages of Ug Shs 6OTOOOTOOOT = at an interest of 25/" Per annum and exemplary damages of Ug Shs SO,OOOTOOOT= when there were no grounds necessitating the sums under each respective head. - 7) The Industrial court erred in law and fact when it failed to evaluate the evidence before it and therefore came to a wrong conclusion'. 20

## Representations

The Appellant was represented by Mr. Joakim Kunta Kinte while the Respondent was represented by Mr. Kenneth Kipaalu and Mr. Bob Muhanguzi. 25

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## DUTY OF THE COURT

It is important before I address the grounds as set out in the Memorandum of Appeal to re-state the duty of this court when handling appeals from decisions of the Industrial Court. Section 22 of the Labour Disputes (Arbitration and Settlement) Act, 2006 (LADASA) provides that;

"An Appeal shall lie from a decision of the Industrial Court to the Court of Appeal only on a" point of law, or to determine whether the Industrial court has jurisdiction ouer the matter."

10 Ground 1

The Industrial court erred in law when it failed to determine an issue that had been agreed upon at scheduling but no ruling or judgment was passed or made by the court.

# Appellant's Submissions

- 15 20 Counsel for the Appellant submitted that the issue of " Wh"etLter tLrc claimant hc.s a Cause of action against the Respondent," was not dealt with and no finding was made. He submitted that the Industrial Court made a serious breach of procedure. He argued that in cases where issues have been framed and agreed upon by the parties, the court is required to consider a1l the issues and indicate its findings - on each issue agreed upon.

He further argued that the Respondent was employed and dismissed by MTN Publicom Uganda Limited and not the Appellant which is a different corporate entity. He argued that the Appellant could not be held liable for the dismissal when it was not the employer and neither was it involved in the disciplinary process.

It was submitted by the Appellant that by the time the Judgment of the Industrial court was given in December, 2015, MTN Publicom Limited had not yet been wound up or dissolved. He argued that MTN Publicom was liable for breach of the Respondent's right to continued employment.

Counsel for the Appellant argued that the Respondent did not plead or prove that MTN Publicom Uganda Limited had been wound up or dissolved. MTN Publicom Uganda Limited would therefore have been the right party to be sued by the Respondent.

He argued that the Industrial court ought to have determined if there was a cause of action against the Appellant, and whether the resolution transferring all the property and liabilities of MTN Publicom Limited, via resolution to the Appellant meant also transfer of the contracts of service previously existing between the Respondent and MTN Publicom automatically became contracts between the Respondent and the Appellant. 15 20

He also argued that a contractual right to personal service was a personal right of the employer and was incapable of being transferred by him to anyone else, and that a duty to serve a specific master

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could not be part of the property or rights of the master capable of becoming by transfer, a duty of to serve someone else. He relied on the case of Nokes v Doncaster Amalgamated Collieries Ltd [1940] 3 ALLERI. OI4.

#### 5 Respondent's submissions

Counsel for the Respondent submitted that the Industrial Court heard the issue and properly determined and found that the Respondent had a cause of action against the Appellant. He argued that there was no need to revisit an issue that the court had already pronounced itself upon.

He further submitted that once the court had given its decision on the issue on 19th March 2O15, the court became functus officio so it could not give another decision over the same issue. He relied on the case of Mapalala v British Broadcasting Corporation l2OO2l lEA t32.

Counsel for the Respondent submitted that the Appellant MTN (U) LTD was merely a continuation of MTN Publicom Limited because the Appellant held a majority 600 shares in MTN Publicom Limited. Furthermore that ali the assets, goodwill liabilities and undertakings of MTN Publicom Limited were transferred to the Appellant. He argued that the Respondent had a cause of action against the Appellant since the Appellant was a continuation of MTN Publicom.

# COURT'S FINDINGS

In regard to the preliminary objection the Industrial court found as follows;

5 "This court is a specialized court to hear and determine lssues relating to labour relations. It utas established for the purposes of quickly disposing of labour disputes. This matter was filed in the court system in 20O5 and has delayed to be disposed of. As such the prouision of the lau cited bg counsel for the respondent i.e rule 23 (2) of the rules of this Court only applies in our uieta, when the point of lau arises from the final decision of court and not from a preliminary point of laut. The appeal process prouided for in the rules of this court is only as far as the ftnal decision of this court is concerned. We are of the strong position that if this court u)ere to allout leaue to appeal against preliminary points, the purpose for uthich this court was established would be in uain. We do not see any prejudice occasioned to the respondent if the court proceeded to hear the matter and the appeal 10

lied on the final decision of the court. We therefore ouerntle the application to stay proceedings pending the appeal process on a preliminarg point. I'he court utill therefore proceed. 15

I therefore agree with counsel for the Respondent that the matter was dealt with by the Industrial court and therefore dismiss this ground of Appeal. 20

# Ground 2

The Industrial Court erred in law and in fact when it held that the Respondents dismissal was in breach of the contract of employment and was therefore unlawful.

# Appellant's submissions

5 Counsel for the Appellant submitted that the contract between the Appellant and the Respondent was govcrned by the trmployment Act cap 219 and not the current Employment act 2006 which was not in force.

He submitted that the Industrial court erred when they relied on section 58 of the trmployment Act. He further argued that the employment act cap 219 has no similar provision and therefore payment in lieu of notice was not mandatory under the Employment law. 10

Secondly, counsel for the Appellant submitted that notice or pa5rment in lieu is only given to an employer whose employment is terminated on grounds that warrant notice and not where the employee is dismissed for wrongful or improper conduct. He submitted that the Respondent's dismissal was for causing financial loss. He relied on the case of Barclays Bank v Godfrey Mubiru SCCA 1 of 2OO8 for this proposition. 15 20

Thirdly, counsel for the Appellant submitted that the interest rate of 25o/o that was awarded by the Industrial court was excessive and not based on any reason at all. He submitted that the proper rate that ought to have used the court rate of 60/o.

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# Respondent's submissions

Counsel for the Respondent submitted that the Respondent's dismissal was in breach of the contract of employment and the Rules of natural justice. He argued that the procedure followed was flawed and there was no loss proved.

He submitted that there was no evidence that the board had sat and considered the Respondent's case in order to dismiss him yet this was a prerequisite stipulated in his letter of appointment. He submitted that the letter of dismissal was signed by Mr. Benon Ntambi the head of Finance and Administration instead of the board.

Counsel for the Respondent also submitted that failure to avail the Respondent an opportunity to Appeal rendered the disciplinary process incomplete, incompetent and unjust.

Counsel for the Respondent submitted that the only witness of the Appellant did not adduce evidence to show any loss but simply said that the Appellant entertained a reasonable suspicion amounting to a belief in the guilt of the Respondent. 15

# Court's findings

I will start with the premises that the Respondent's services were wrongfully terminated. According to Halsbury's laws of trngland 4tt, edition Vol 16 Para 3O2 20

"Wrongful dismissal is defined as;

10 I "Meaning of Wrongful dismissal "A wrongful dismissal is a dismissal in breach of the relevant provisions in the contract of employment relating to the expiration of the term for which the employee is engaged.

5 The contract of employment of the Respondent provided that;

"The compa"ng shall haue a right to summarily terminate tlte agreement if the board ura-s satisfied that the employee had been guilty of misconduct, criminal actiuity and or been grossly negligent in the exercise of his duties resulting in financial loss to the company."

10 The Industrial court found that the Board had to be satisfied that the employee was guilty. However the Appellant's witness testified that he had been dismissed bascd on " reasonable suspicion" .

The court later concluded that there was no evidence on the record showing that the appellant had adduced evidence to prove that the respondent had actually committed this offence neither is any mention of the amount of loss caused. I agree with this finding.

The court also found that the procedure of dismissing the Respondent was also improper. This was bccause there was no evidence to indicate that the board heard and considered any representations which the claimant on the charges levied against him had made. There is no record of either oral or written testimonies in support of the allegation levied against him during the disciplinary hearing. There is no evidence to support a waiver of his right to

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appeal. I agree with this finding as well. This ground is therefore disallowed.

# Ground 3

#### 5 The industrial court erred in law when it held that there is no difference between wrongful dismissal and unlawful dismissal.

Counsel for the appellant abandoned ground 3 of the appeal and I therefore need not consider it.

# Ground 4

# The Industrial Court erred in law and in fact when it held that the Employment Act, 2o,o,6 was applicable to the dispute and not the repealed Employment Act, Cap. 2L9. 10

Counsel for the appellant submitted that the Industrial Court erred in applying Section 66 of the Employment Act, 2o,o6 to the present case when the dismissal which gave rise to the respondent's suit was

- done on 31st May, 2OO5 bcfore the coming into force of the relevant Act on 7th August, 2OO6. Counsel cited the case of Omunyokol vs. Attorney General, Supreme Court Civil Appeal No. 6 of 2OL2 where it was held that the trmployment Act, 2006 did not have retrospective effect and could not be applied to acts that arose before it came into force. Counsel urged this Court to find that the Industrial Court erred in finding that the Employment Act, 2OO6 was applicablc 1.5 20 - to the facts of this cfi.se.

In reply, counsel for the respondent submitted that the Industrial Court rightly applied Section 66 of the Employment Act, 20O6 in the present case, and corrcctly relied on it to assess the fairness of the appellant's dismissal by the respondent.

5 In the alternative, counsel for the respondent submitted that if the trmployment Act, 2006 was inapplicable, the Industrial Court's finding that the respondent was unfairly/wrongfully dismissed was correct because the 1995 Constitution and common law principles that were applicable before the enactment of the trmployment Act, 2006 required an employer to act fairly while taking the decision to dismiss an employee. For this submission, counsel cited Article 42 of the 1995 Constitution which provides: 10

"42. Right to just and fair treatment in administratiue decisions.

AnA person appearing before ang administratiue official or body has a right to be treated justly and fairly and shall haue a right to apply to a court of law in respect of any administratiue decision taken against him or her."

Counsel for the respondent further submitted that several cases that were decided while the Employment Act, Cap. 2I9 was in force emphasize the significance of an employer holding a fair hearing before dismissing an employce and stated the consequences of failurc to do so which was rendering an employer liable in damages for unfair dismissal. In support of this submission, counsel for the respondent cited the cases of Stanbic Bank vs. Kiyimba Mutale,

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# Supreme Court Civil Appeal No. 02 of 2O1O; Jabi vs. Mbale Municipal Council [1975] HCB 191; and Ridge vs. Baldwin [196a1 AC 40.

5 In view of the above submissions, counsel for the respondent submitted that there was no difference in the position of the law, before and after the enactment of the trmployment Act, 2006, and accordingly, should this Court find that the Industrial Court erred in applying the said Act, it ought to find that the application caused no prejudice to the appellant.

# 10 Court's findings

I have considered the submissions of counsel for both sides on ground 4. In the case of Omunyokol vs. Attorney General, Civil Appeal No. O6 of 2OL2,tl;re Supreme Court (per Odoki, Ag. JSC) held that the Employment Act, 2006 does not have retrospective effect and does not apply to causes of action that arose before its enactment. Counsel for the appellant was therefore right when he submitted that the Industrial Court erred in finding that the Employment Act, 2006 was applicable to the present case.

However, as rightly submitted by counsel for the respondent, the law before the Employment Act recognized the concept of unfair/wrongful dismissal as arising where an employer dismissed an employee without giving lnirnlher a fair hearing. In such cases, the employer would be liable to pay compensation to the employee comprising payment in lieu of notice of termination and damages 20

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deemed fair by the Court. See: Bank of Uganda vs. Betty Tinkamanyire, Supreme Court Civil Appeal No. L2 of 2OO7. Accordingly, the appellant would be liable to pay compensation to the respondent for unfair dismissal even without applying the Employment Act, 2006. It therefore follows that counsel for the respondent's submission that no prejudice was occasioned to the appellant by the Industrial Court's application of the trmployment Act, 2006 is correct.

### Ground 5

The Industrial court erred in law and fact when it awarded the Respondent one (lf months' notice of Ug shs 933,338 l= at an interest rate of 25o/o per annum from the date of dismissal until the date of Judgement. 10

# Appellant's submissions

Counsel for the Appellant submitted that the Industrial court erred in law when they awarded the Respondent general damages of Ug Shs 60,000,000/:. He submitted that the Industrial Court was supposed to confine the compensation for unlawful dismissal of the Appellant to the monetary value of the period that was necessary to give proper notice of termination which is commonly known in law as compensation in lieu of notice. 15 20

With regard to exemplary damages counsel for the Appellant submitted that the criteria for awarding exemplary damages was not met in this case.

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He submitted that exemplary damages are an exception to the rule that damages generally are to compensate the injured person. He submitted that these are awarded to punish, deter, express outrage of court at the defendant's egregious, highhanded, malicious, vindictive, oppressive and malicious act. He relied on the case of URA

# v Wanume David Kitamirike, CACA No.43 of 2010.

### Respondent's submissions

10 In regard to general damages counsel for the Respondent submitted that the interest rate that was awarded by the Industrial court was 8o/o and not 25o/o. He submitted that this was fair in the circumstances of the case. He also argued that general damages are awarded within the discretion of the court.

He submitted that the Respondent had suffered loss of income as a result of his unlawful dismissal and resorted to driving a taxi and depending on his wife. He argued that in the circumstances the award of Ug shs 60,000,0007 = at an interest rate of 8o/o was justifiable.

20 He further submitted that the court was not confined to awarding only payment in lieu of notice it could also award general damages. He submitted that in the case of Bank of Uganda v Betty Tinkamanyire, SCCA No.12 of 2OO8, Kanyeihamba JSC after making an order for payment in lieu o[ notice also awarded the Respondent aggravated damages.

In regard to exemplary damages counsel for the Respondent submitted that the industria-l court was correct to award them since the Respondent had been dismissed arbitrarily in contravention of the law and his employment contract in spite of the fact that there was no evidence before the disciplinary hearing against him.

# Court Findings

I have carefully considered the argument of counsel and I agree that reasonable interest has to be paid under the provisions of section 26 of the Civil Procedure Act. What is reasonable interest being a question of fact with the underlying principle of restitution in integntm.

The Industrial court awarded the Respondent payment in lieu of notice of one month's salary of UGX 993,338 l: at an interest of 25% per annum from the date of dismissal till date of Judgment.

15 20 In African Epidemiology Network (EFENET) v Peter Wasswa Kityoba Civil Appeal No. L24 of 2OL7 at page 42, the Appellant challenged the award of interest of 24o/o on all awards as being excessive. This court held that the award of interest is compensatory and is assessed on the sarne footing of restitution integrum. According to Stroud's Judicial Dictionary of Words and Phrases Sweet and Maxwell 2000 Edition, Interest is compensation paid by the borrower to the lender for deprivation of the use of his money.

In Riches v Westminister Bank Ltd, ll947l 1ALLER 469 HL at 472 Lord Wright held that;

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".....the essence of interest is that it is a paAment uthich becomes due because the creditor has not had his money at the due date. It may be regarded either a.s representing the profit he might haue made if he had had the use of the moneA, or conuersely, the loss he suffered because he had not had that use. I'he general idea is that he is entitled

to compensation for the depriuation."

In the circumstances, the interest should have been awarded at a bank rate for fixed deposit rate of l4oh. A distinction should be drawn between interest in commercial disputes which normally attract the higher interest rate of between 1 8o/o -25oh,and interest in commercial

disputes like the current one which is usually lower. I find that the award of 25oh was excessive. This ground is allowed. 10

# Ground 6

The Industrial court erred in law and in fact when it awarded the Respondent General damages of Ug Shs 60,000,OO07= at an interest of 25o/o per annum and exemplary damages of Ug Shs SOTOOOTOOOT= when there were no grounds necessitating the sums under each respective head. 15

# Appellant's submissions

Counsel for the appellant submitted there was uncontroverted evidence that the Respondent was arrested by police officers. He argued that the MTN Publicom had no control or authority over the police since they were neither employees nor agents of MTN Publicom. 20

He argued that had the Industrial Court evaluated the evidence it would have come to the conclusion that the dismissal of the Respondent by MTN Publicom Uganda Limited was lawful and in accordance with the Employment Act, Cap 219.

#### 5 Respondent's Submissions

Counsel for the Respondent submitted that the Honourable Judges of the Industrial Court properly evaluated the evidence and came to the rightly conclusion because the way the Respondent's case was handled was callous, inhumane and devoid of compassion.

10 He argued that the Respondent testified that during the disciplinary hearing, ro evidence was led to show how he caused the loss and how much loss he caused.

Furthermore, he argued that upon the Respondent being pronounced guilty, the Respondent raised his hand in protest and rcquested for a copy of the proceedings in order to Appeal. He was advised to go downstairs. When he went downstairs he was immediately handed over to the police. He was taken to Kiira Police Station where he stayed for three days on charges of ernbezzlement.

#### 20 Court's finding

I will begin by stating that the interest rate that was awarded was a court rate of 8oh per annum and not 25o/o as stated by the Appellant.

The Industrial court also awarded the Respondent general damages of Ug. Shs 60,O00,000/: at an interest of 8oh. The reason it gave for this award was that the Respondent had suffered loss of income due to his unlawful dismissal and was forced to drive a taxi and also had to depend on his wife which was humiliating.

General damages, according to Lord Macnaghten in the oft-cited case of Stroms V Hutchinson, [19OSI AC515, are such as the law will presume to be the direct natural or probable consequence of the act complained of.

The basis for the award of general damages is the doctrine of restitution in integrum which is supported by Article 126(2) (c) of the Constitution which provides that in adjudicating cases, an adequate compensation shall be awarded to the victims of wrong. Damages are awarded to compensate the aggrieved, fairly for the inconveniences accrued as a result of the actions of the defendant. 10 15

In Halsbury's Laws of trngland Fourth Edition Reissue Volume 12 (Ll paragraph 812 general damages are defined as those losses, usually but not exclusively non-pecuniary, which are not capable of precise quantification in monetary terms. The losses are presumed to be the natural or probable consequence of the wrong complained of with the result that the plaintiff is required only to assert that such damage has been suffered.

It was held by Lord Wilberforce in Johnson and another v Agnew ,l7-979l 1 ALLER 883 at page 896 that the award of general damages is compensatory;

i.e. that the innocent partA ls fo be placed, so far as moneA can do so, in the same position as if the contract had been performed.

I find that the award of general damages was excessive. I would substitute it with an award of Ugx 2O million instead.

I will now consider whether the award for exemplary damages was justifiable.

The humiliation suffered by the respondent was one of the grounds used by the industrial court for awarding him general damages. To use the s€une ground to award the respondent exemplary damages has no legal or factual basis. 10

Award of exemplary damages is punitive andlor meant to act as an example. Hence exemplary damages are "damages for examples sake " see: Butterworths Vs Buttenrrorth lL929l p L26. 15

An award of exemplary damages should not be excessive. The punishment imposed must not exceed what would be likely to have been imposed in criminal proceedings, if the conduct were criminal. Per Spry V. P. rn Obongo Vs Municipal Council of Kisurnu, [7977]

EA 97. All circumstances of the case must be taken into account, including the behaviour of the plaintiff and whether the defendant had been provoked. See O'Cottnor V Heusistott, [1979] Crim. LR 46, CA; Archer Broutn [19851 QB 4O1. 20

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Justice Katureebe (CJ as he then was ) summ arrzed the three instances set out in Rookes v Barnard, [1964] AC LL29, under which exemplary damages should be awarded as being:

- 1. Where government servants or agencies act in an oppressive or arbitrary or unconstitutional manner; - 2. Where the defendant's conduct has been calculated by him to make a prolit which may well exceed the compensation payable to the plaintiff; and - 3. Where some law for the time being in force authorizes the ward of exemplary damages. None of those conditions existed in the instant matter to warrant the award of exemplary damages to the respondent by the industrial court.

The industrial court in making the award found as follows

"The claimant had no record of misconduct or anA form of reprimand

- against him on the record. We find that the manner in uhich the claimant was handled u)as callous, inhumane and deuoid of compassion. He u)as arrested and detained and publicized os a" dishonest person and lqter the charges against him dropped but his name had alreadg been tarnished. In light of the humiliation he suffered u)e see no reason uthy he should not be granted exemplarg 15 20 - damages and here by award him Ugx BO,OOO0,OOO/: as exemplary damages."

I note that the award of damages is made in the discretion of the trial Court; an appellate Court may only interfere with it, if there exist reasons justifying such interference.

In the case of Joy Trail v Henry Mitford Bowker ,1O EACA L947 the court found that an appellate Court will not interfere with the award of damages by the trial Judge unlcss it is satisfied that in awarding the damages, the trial Judge acted on a wrong principle or

5 that the amount awarded as damages was so high or so low as to make it an erroneous estimate of the damage.

Bearing those principles in mind I find that an award of Ugx 80,00O,0OO l= as exemplary damages was excessive. I find that the award was not justifiable. Therefore this ground is not allowed.

## 10 Ground 7

The Industrial court erred in law and fact when it failed to evaluate the evidence before it and therefore came to a wrong decision.

#### Appellant's submissions

15 Counsel for the Appellant submitted that the Respondent was informed of the allegations of misconduct, suspended on full pay and invited for a disciplinary enquiry which he replied to by writing a written statement of defence.

20 Secondly, counsel for the Appellant submitted that the Respondent was arrested by police officers. He argued that the MTN Publicom had no control over the police.

Thirdly, counsel for the Appellant submitted that even though there was a resolution registered on 28th November, 2OO7 where the assets

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and liabilities and undertakings of MTN Publicom Uganda were transferred to the Appellant . The said resolution did not make provision for continuation of any legal proceedings against MTN Publicom.

5 He concluded by submitting that the dismissal of the Respondent by MTN Publicom was lawful and in accordance with the trmployment Act, Cap 219. He further submitted that if MTN Publicom was deemed to be liable for unlawful dismissal the Respondent was not entitled to the remedies granted by the industrial court.

#### 10 Respondent's submissions

Counsel for the Respondent submitted that the industrial court properly evaluated the evidence and came to the right conclusion that the Respondent's dismissal was unlawful and the Appellant was liable.

15 Counsel for the Respondent submitted that the Respondent had had denied all the charges levied against him. Furthermore that no evidence was led to how he had caused the loss. At the conclusion of the hearing, he was informed that he was found guilty of causing financial loss relating to the unauthorrzed removal of coins from 20 company payphones.

He argued that the manner in which the Respondent's case was handled was callous, inhumane and devoid of compassion. He argued that the Respondent was arrested and detained and publicized as a dishonest which tarnished his image.

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He submitted that the Honourable Judges of the Industrial Court properly evaluated the evidence and came to the rightful conclusion. He prayed that we uphold the decision of the industrial court dismiss the Appeal and award costs of this court and the lower court to the Respondent.

#### Court's findings

The submissions under this ground are very similar to those underground 2 of this Appeal. We havc already found that the Appellant did not lawfully dismiss the Respondent under that ground. This ground is therefore also not allowed.

#### Final Result

This Appeal is allowed in part.

I substitute the orders of the trial court as follows:

- 1. Judgment is entered partially against the Appellant. - 2. Tllre Respondent is awarded one month's notice in lieu of payment of Ug Shs 933,338 I : at an interest of l4o/o from the date of dismissal until the date of Judgment. - 3. The Appellant shall pay the respondent general damages of Ug shs 20,000,000/: from the date of the Judgment at the trial Court with interest at l4o/op.a. until payment in full. - 4. The Respondent is awarded 5Oo/, of the taxed costs before this court and court below , the Industrial Court.

Dated at Kampala this $17^k$ day of Manh 2023.

estmio2. . . . . . . . . . . . . . . . . . . .

**Christopher Gashirabake**

Justice of Appeal

$\mathsf{S}$

# THE REPUBLIC OF UGANDA !N THE COURT OF APPEAL OF UGANDA AT KAMPALA

[Coram: Elizabeth Musoke, Muzamiru M. Kbeedi & Christopher Gashirabake, JJA]

#### CML APPEAL NO.291 OF 2016

MTN (U) LIMTTED APPELLANT

#### VERSUS

RICHARD NDEMIRWEKI RESPONDENT

(An Appeal arising from the Judgment of the lndustrial Courl of Uganda in Labour Dispute Claim No.101 of 2014 dated 17tn December 2015 delivered by the Hon. Chief Judge Asaph Ruhinda and Hon. Judge Linda Lillian Tumusiime)

#### JUDGEMENT OF MUZAMI MUTANGULA KIBEEDI. JA

I have had the advantage of reading in draft the Judgment prepared by my brother, Hon, Justice Christopher Gashirabake, JA. I agree that the appeal should partially succeed in the terms proposed.

Dated at Kampala this D(f;^v ot 2023 ,a-^a-^-d

Muzamiru Mutangula Kibeedi JUSTICE OF APPEAL

### THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CryIL APPEAL NO. 0291 OF 2OL6

MTN (U) LIMITED:: ::: ::::: ::::: :::::: ::::APPELLANT

#### VERSUS

#### RICHARD NDEMIRWEKI: : : : : : : : : : : : : : : : : : : : RESPONDENT

(Appeal from the decision of the Industrial Court of lJganda dated lVh December, 2015 before Hon. Chief Judge Asaph Ruhinda and Hon. Judge Linda Lillian Tumusiime in Labour Dispute Claim No. 101 of 2014)

## CORAM: HON. LADY JUSTICE ELIZABETH MUSOKE, JA HON. MR. JUSTICE MUZAMIRU MUTANGULA KIBEEDI, JA HON. MR. JUSTTCE CHRISTOPHER GASHTRABAKE, JA

### JUDGMENT OF ELIZABETH MUSOKE, JA

I have had the advantage of reading in draft the judgment prepared by my learned brother Gashirabake, JA, and I agree with it. For the reasons which he gives, therein, I would allow the appeal in part and make the orders he proposes.

As Kibeedi, JA also agrees, the unanimous decision of the Court is that the appeal is allowed in part, and judgment is entered on the terms set out in Gashirabake, JA's judgment.

## It is so ordered.

| Dated at Kampala this | {aay I ) or | 2023. | |-----------------------|-------------------|-------| | | | |

Elizabeth Musoke Justice of Appeal