Nabudere v Uganda Commercial Bank Ltd (Civil Suit No 17 of 1996) [1999] UGHC 51 (7 April 1999)

Full Case Text

#### RETUBLIC OF UGARDA $\mathrm{THE}^+$

# IN THE HIGH COURT OF UGATDA AT LEAST

### HOLDEN AT LELLE

## H. C. OS NO 17 of 1996

VILSON N. NABUDERE $\begin{array}{cccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc$ PL. IN. IFF versus

UGANDA COLLERCIAL BANK DEFINDATT 1111111111111

INREARE: III HONOUTABLE LIN, JUCTICE INCUSTUS KANIA

## JUDGITILI

The Maintiff Milson N. Nabudere med the defendant for the recovery of shs 14,372.667=, general damagee interest on the above two claims and costs of the suit.

The Flaintiff had been an employee of the defendant Bank from 19.12.1961-30.9.1993. $\blacksquare$ During this period he attained various ranks. he was Chief Fersonael Lanager at the time of his retirement. He retired under the voluntary retirement scheme introduced by the defendant $B_2nk$ in 1993. Under this scheme an employee who had jut in ten years of service or above was to be paid the following benefits.

12 months salary plus allowance for 12 months. $(a)$

3 months salary plus allowance in lieu of notice. $(b)$

Accumulated leave in cash. $(c)$

$\cdots$

$10$

$\mathsf{S}$

And in the case of employees who had had a service period of 15 years and over they were entitled to be paid a portion of their long service award on a prorata basis.

The Plaintiff was paid all these benefits but the Maintiff claims that in respect of accumulated lacve in east the defendant employed the wrong formula. He contended that under that heading besides the 20% of his annual, salary paid to him he maket besties to have been paid the other allovances he used to enjoy when he was still employed by the defendant which included the following:-

. Nowwing allowance she 495,000= x 12 shs = $5,940,000=$ $\langle$ )i $\rangle$ (ii) Basic salary she 340,000= $\times$ 10= 3,400.000= Jos'm of living allowance she TT9.000 x 10 =1,190,000= $(111)$ $(iv)$ Medical allowances she 90,000= $\times$ 10= 900,000= Representation allowance of slub $55000 \times 10-550.000 (v)$ Servants allowance she 70,000= $\times$ 10= 700,000= $(tv)$ Travelling allowance 273,000 x $10=2,730,000=$ (vii) Lunch allowance 132,000= $\pi$ 10, = shs 1,320,000= (viii) I cave allowance = $shs$ 5,657 600= $\mathbf{20}$ $(ix)$

The defendant contended that all the terminal benefits of the plaintiff were duly paid and that in respect to his 10 months accumulated leave the plaintiff was only entitled to his leave allowance and not to any of the above allowances. Hence this suit. 25

At the commencement of the hearing of the suit two issues were framed for determination namely:-

$\ldots \ldots \ldots /3$

- **(D** '.'he ther the plaintiff was entitled to payment of salary and allowances in lieu of accumulated leave. - **(2)** hat is the quantum of the salary and allowances if my. 5

**]** In support of his case T 'I ilson 1:. rl/oudere testified that he had worked with the defendant from 1561 to 1953 **1** rising from the ranks to the rank of Chief Personnel onager. In 1993 following the defendants nostrue turing Irogrsuune as contained circular J."C 3 dated 26th April, 1993 **10** he applied for voluntary retirement. Circular ?0 3 wan tendered in evidence as D4. ke testified h-at contained in. the **J** circular were the terms of such retire, tent which in his case wao had been in service fax' more than 15 years were that he **J** would be paid the following benefits 15

- **J** (a) 12 months salary plus allowances for twelve months. - **I** (b) 3 months salary plus allowances in lieu of notice. - **1** (c) ■. ccuiamul a ted 1 eave in c ash.

**T**

**1**

' Ml

**J**

**(a)** A portion of his long service award on a pro rata 20 basis.

**1** lie did not dispute the payments made to him. under as leave allowance under (c) used the wrong formula jnd therefore 25 owed him s'.is 14,372,667- in various allowances already d e tail cd above. The Plaintiff iurther testified that his leave acciwmulatcd io 208 days or 10 months bvccj.se he was **i** al'.-'iys being prevented by Lie defendant from ia' in.. his leave (a)>(b) and (d) above but contended that the nefeudunt 1 in paying him only 2O'-\* of hie. annual salary

. .4

-3-

whenever it fell due because of pressure of work.

W1 Victoria Byoma, Benior Munager Human Resources of the defendant Bank testified that the entillements of the employees of the defendant, both unionised workers and management, and gaverned by the personnel policies manual 5 which was exhibited as $\mathbb{R}$ . She referred to Article 7.02(c) of this Manual which provides for leave, allowance at 20% of the employees annual colours have evidence was that while on leave an employee remains on the pay roll and is paid his salary and organizate, Accounting to the witness the Flaintiff $10$ was entitled to leave allowance of 20% of his basic annual salary and the line of loave at the rate of one months salary per ere month of leave. The witness testified further that had the plaintiff talen his lows in 4985 he would have been paid his leave allowance of 20' of his basic salary, 15 hig besic calary and gilewances for the time he would be on Leave. She however testified that the 208 days of accumumlated leave could not estitle the plaintiff to draw allowances on top of 20% leave allowance and basic malaxy few that period. which is ten months, because it covers a period the 20 plaintiff was on the pay roll.

Mr. Natsomi learned counsel for the defendant submitted that in civil cases the burden of proof is on the plaintiff to prove his case on a balance of probabilities. In this case he contender it has a burden on the plaintiff to show on a balance of probabilities that he was entitled to the allowances he was obtains in secrect of the 200 days accumulated leave. Fr. Matsomi submitted that from the evidence that who adduced the plaintiff was only cavilled to the payments made to in an indicated in the defendant's

**............** 5

letter dated 31.1.1994 which was exhibited as UI, namely leave allowance and a month's salary for me. Of the months of accumulated leave and nothing clas. We argued that the plaintiff was entitled to and what was in the Personnel policy Rannai wideh governed what allowsness to pay 5. which in the case of leave that 20% of the annual salary while the employee would continue receiving his basic salwy while on leave, together with all his other exclusions. Mr. Natsomi submitted what if however like in the case of the plaintiff as apployee on termination of service has not $10$ exhausted his leave he shall be preated a sum proportionable to the number of days of the annual leave accumulated. this in counsel's submission did not include the allowances that are being chained by the plaintiff. Councel argued that the plaintiff having given evidence that he was not 75 entitled to cost of living allowance, that medical allowance was payable on presentation of receipts and that he occupied an official residence of the defondant the had no basis whatsoever claiming those allowances. We further submitted that the phrintiff and foiled to prove his case on 20 a balance of probabilities that he was entitled to the allowances claimed. The also failed to establish that there was a breach of contract since the Maintiff retired voluntarilly. Mr. Patsoni prayed that the suit be dismissed with costs.

Mr. -agirisi learned counsel for the plaintiff, submitted that the plaintiff used to receive all the allowances listed above, except housing allowance because he was housed by the defendant.

by phythip 1.4 have and philate companies by management of the the physical physical and the physical physical physical physical physical physical physical physical physical physical physical physical physical physical ph

$-5 -$

No contended that the main issue to decide in this claim is whether the plaintiff would have received all these allowances if he had proceeded on leave instead of join on metirement. He argued that the answer must be in the affirmative because $\overline{5}$ DT1 Tictoria Byoma testified so and that sie even won't further by destifying that an employee the occupies a Bank house but recutes it when proceeding on leave is entitled to hough, allo-once for the period he is on leave. $\Delta x$ . Magiriji – pubmitted that D4 circular TO 3 put the plaintiff outs. do of the boar house by offering this housing allowance tinstead. • • e regued that the pholonial istuardy esting for those allowances he would have received that he jone on leave. the distance in a sugmant that the plaintick could not be paid the allowances because during the tendenths he accumulated his leave he was being goid the same Allouances. Bounsel finally solwithed that the claim in broad, of combract for General dumaged is proper because the definitive readed on the ich s'under which he and the difficulent agreed he was to voluntarily retire. We proved for interest the costs.

- 6.

the plaintiff the first issue the lew the plaintiff was entitled to the poyment of salary and allowances in lieu of accumulated have refurence must be used to askibit D3 the Termonal following radial which governs the forest and conditions of the orphoyoes of the define at Bank including leave benefits. Ther Article 7.02(c) of the asid Tenual a womber of Waf, proceeding on leave shall receive 20% of his annual solary. Under article 7.03 (c) (1) of the same, a newber of staff who leaves the services of the bank and has not exhausted the annual leave to which he is entitled shall be unated proposition to to the number of days of manual lacve he has accumual ted.

$\ldots \quad \ldots 7$

$20$ The Plaintiff in my view falls within this latter category in that at the time he was leaving the pervices of the bank by voluntary retirement the had uncalculated accumulated leave of 200 days or 10 months. From the evidence of D71 Victoria Eyoma these were not the only leave benefits. Her evidence was that after the public tion of the Fernomiel Policies Manual the Rank in its attempt to improve the cultions and terms of its employees introduced over the years other allowances as now being claimed by the plaintiff. She also testified that mean these allowances were all in place a member of staff proceeding on summal. heave would be paid leave allowance of $20$ of his annual salary, his monthly salary and all these allowances for the period he would be on leave. It would appear from the evidence of $DM1$ conditions had by the time the $1\! \stackrel{\scriptscriptstyle <}{\phantom{}_{\smash{1}}}$ plaintiff retiled been incomposited, at least in practice, into the Ramonmel Tolicies Manuel. From the above, and particularly from the evidence of $U/1$ , $T$ find that if the plaintiff had not retined but had taken his 10 months leave he would have been catitled to 20 of his manual splary. $2C$ his salary for 10 months and to allowances which he now claims. I am reinforced in this finding by the contents of multibit D4 and I quote the relevant passage:-.

> "In order to faciliate the reactilement of such staff who have served the bank honestly and have elected to leave at this time, the Board has decided to pay the following compensation package according to the personnel policy currently in force. "

> > . . . . . 8

My understanding of the phrase Jaccording to the Tersonnel policy currently in force" with reference to leave benefits as testified to by DII means 20% of the annual salary, basic salary for the period of leave and all the allowances. It was forcefully argued for the deformant that the plaintiff is not entitled to the allowances because he was drawing the same allowances during the period he was accummulating his 10 months leave. $\mathcal{L}(\mathcal{L}) = \mathcal{L}(\mathcal{L})$ Though this argument may seem convincing.

I find it hard to embrace it because the allowances $\n *Line*\n$ plaintiff Grew them were because he continued to work when he was supposed to be on leave and this at the behaut of the defendant. The leave was morely being deformed from year to year according to Article 203 (c) (iii) which provides in part:-.

'(iii)

The Bank may, for exigencias of scrving result or cancel sutherisation to proceed on minuals leave. In such event whatever amount leave remains Que to the staff nember will be carried forward into the next year........"

This is according to the ovicence of the plaintiff exactly that happened. Wit did not say it happened differently. He could not have been paid allowances in respect of his 10 months accumulated leave when his leave was being cancelled each year and carried forward.

In considering this issue. I have beene in mind that in civil cases like the instant one a pleintiff has the burden to prove whatever he alloges in his plaint. Sobuliba vs Cooperative Sauk Ita /1982/13 129.

۰g.

$\mathfrak{I}$

Sec also "action 100 of the evidence Act. In Cinclaration this duty the pleintiff must carry a "reasonable de pec of probability – but not as Migh as in a climinal case" See Miller vs Ministry of Tousions /1947/ 2 AT D.1. 372 From the avidence on locord perticularly that addeed by D.1, 5 the provisions of the lemonmal policies lancel and the terms in the restructuring programme Linh. D4 the plaintiff has proved with a " reasonable robability # that he is chilled to the allowances he now claims. In the result the first issue is answered in the affirmative $10$

Laving found the plaintiff is entitled to the claims he has made what is the quartum of those benefits. BM Victoria Lyoma Senior Musan Annonycon Langer of the defendant Bank testified that a member of staff, which in this context includes the plaintiff, proceeding on leave 15 vould be paid 20' of his canual salety. Thile he was on leave he would continue to receive his explanants as if on the pay roll and he would acceive all other allowances. As I have observed earlier in this judgment DT did not to . satisfaction juntify why a member of stair like the 20 plaintiff who has occusaulated his leave at the time he leaves the service of the defendant should not enjoy the same conditions he would have enjoyed if he had taken his leave when in service. I as therefore hadling to hold that the plaintiff is withiled to 20° of his modul solary, 25 his basic calaxy for 10 months, housing allo made conts of livit allowances, impresentation allowance, maxmata allo aneo, travelling allowance, lunch allowance, leave allowance. I disallow medical allowance has the plaintiff bimedf testified that this was poyable upon production of medical billo which was not produced caring it

$......$

$-9-$

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these proceedings. As the rates of these allowates payable to the plaintiff when he was in new ce were not challenged I find that the plaintiff was emtitled to those allowances at the rates shown in para raph || 4 of the plain; all ex-ounting in the agreemate sum of sto 22,307.600= $\pm$ As the plaintiff admitted baving acceived are 0.014.933 what he considered part payment and having disallowed the medical allowance, I find that the plaintiff is entitled to cls 13,472.667= by way of leave allowances for the 10 conths of accessed to leave.

In the result judgment is entered for the plaintiff in the sum of the $13.476.265$ with costs and with interest at $0^{\prime}$ from the Cate of the filing of this suit till rayment in full. As the cuit was by lag of domaing what the defendant oved the plaintiff as a debt $\mathbb{R}$ decline to award datages by they of breach of contract which has not been proved to my patisfaction.

$3/6$ . $3/3555$ LIIA JU . 7.4.1999

$5$

$10$

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT MBALE CIVIL SUIT NO 17 of 1996

WILSON N. NABUDERE :::::::: **PLAINTIFF** VS. UGANDA CONDERCIAL BANK LTD ::::::::: DEFELDANT

$\cdot \cdot \cdot$

## DECREE

THIS SUIT coming this 7th day of April, 1999 for final disposal before HIS LORDSHIP AUGUSTUS KANIA in the presence of Mr. Magirigi for the Plaintiff and Mr. NATSONI for the Defendant it is CRDERED AND DECREED that the Defendant pays to the Plaintiff:-

- Ug. sns 13,476,266= as accumulated Leave allowances for $(a)$ 10 months. - Interest on (a) above at $\aleph$ from date of filing the $(b)$ suit until payment in full.

IT IS FURTHER ORDERED AND DECREED that the defendant pays to the Flaintiff the costs of the suit.

Given under my hand and the seal of the Court this...?................................. of... $0010(62, 1999)$

DEFUT

EXTRACTED BY:

$\lceil \cdot \rceil$

$\mathbf{I}$

$\mathbb{I}$

M/S LUGERWA & MATOVU ADVCCATES, THIRD FLOOR, DIAMOND TRUST BUILDING, P. O BOX $7166$ , KAMPALA

We consent to the decree as extracted

COUNSEL FOR TH FLAINTIFF