Ndyabawe v Shell Uganda Limited (Civil Appeal 97 of 2003) [2004] UGCA 22 (20 December 2004)

Full Case Text

## THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA

### AT KAMPALA

$10$ CORAM: HON. MR. JUSTICE G. M. OKELLO, JA HON. MR. JUSTICE A. TWINOMUJUNI, JA HON. LADY JUSTICE C. N. B. KITUMBA, JA

### CIVIL APPEAL NO. 97 OF 2003

#### **BETWEEN**

GEORGE NDYABAWE :::::::::::::::::::::::::::::::::::: **AND**

SHELL (U) LTD :::::::::::::::::::::::::::::::::::

Appeal arising from the judgement of The High Court (Maitum, J) dated 10-10-2002 in HCCS No. 56 of 2001}

## JUDGMENT OF G. M. OKELLO, JA

I have had an opportunity to read in draft the judgment of Kitumba, JA and I entirely agree with her reasoning and conclusion that the appeal must succeed. As Twinomujuni, JA also agrees, the appeal shall stand allowed on the terms proposed by Kitumba, JA.

Dated at Kampala this day of December 2004.

G. M. Okello HON. JUSTICE OF APPEAL

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA **AT KAMPALA**

### HON. JUSTICE G. M. OKELLO, JA. $5$ **CORAM:** HON. JUSTICE A. TWINOMUJUNI, JA. HON. JUSTICE C. N. B. KITUMBA, JA.

## CIVIL APPEAL NO. 97 OF 2003.

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# GEORGE NDYABAWE :::::::::::::::::::::::::::::::::::: VERSUS

# SHELL UGANDA LIMITED ::::::::::::::::::::::::::::::::::::

[An appeal from the judgement of the High Court at Kampala (Maitum, J.) dated 10/10/2002 in HCCS No. 56 of 2001]

## **JUDGEMENT OF C. N. B. KITUMBA, JA.**

The appellant sued the respondent in High Court Civil Suit No. 56 of 2001 for wrongful dismissal from employment. The appellant's suit was 20 dismissed with costs to the respondent.

The following are the facts, which led to the appeal. The appellant was an employee of the defendant for ten years. During the course of the employment his performance was very good. He received several awards and bonuses because of his excellent performance. There were serious incidents of the frespondent's fuel from 1996 up to 2000. The appellant was involved in investigating the thefts which led to the arrest and the prosecution of some people in the respondent's company and in The theft of fuel escalated and the the neighbouring area of Wabigalo. 30 respondent was loosing about 12,000 litres of fuel weekly. During June and July 2000 two serious incidents of burglary occurred. In June the

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Alarm Protection Services Guards were drugged and the respondent's headquarter were burgled. In the night of2l"and 22"d July there was an attempt to steal fuel from the respondent's Tank Farm. All these were reported to the police but apparently the police was slow in its investigations. The respondent emplolied a private investigator to investigate the thefts. The appellant was implicated in the thefts by the private investigator's reports.

The management did not believe the private investigator's reports because the appellant was rated as an excellent performer. The management constituted its own investigation team to verifu the allegations that had been made. The management investigation team consisted of the following people:- Ian Jaffrey Bromilow, the Managing Director/County Chainnan, DW5, Georgd Bamugemereire, the Company Secretary/Human Resources Manager and Ivan Kyayonka, the Supply and Operations Manager Shell (U), DW4. According to the findings of the management team the appellant was implicated in the theft of the respondent's fuel. The appellant was suspended fiom employment on 16- I l-2000 by letter exhibit P.l I which was written by DW5. The appellant was requested to explain the allegation against him. He gave his explanation by his letter dated 16-1212000, exhibit P.12. On 20/1112000 the respondent's management held a meeting with the appellant. DW4, DW5 and the Human Resources Mana\$er attended the meeting. The appellant was given the option either to resign with full benefits or be dismissed. The appellant requested for 7 days to consult. On2Tlll/2000 there was a follow up meeting between the appellant and the management team. The appellant decided not to resign. DW5 there and then gave him the letter of dismissal, exhibit P. I 6. lr) ll l0 2\_s

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'fhe appellant trled a suit against the respondent. He averred in the plaint that his suspension and disrnissal were wrongf'ul because the rules of rratur'ul .ir-rstice, iabottr Iair artd stall' standirl-u illstructiotls \\ere not lbllc,rred. tle lultlicr arctrcd that the respondent based his dismissal on talse allegations that had been tnade by persons whom the appellant had stood in their way from,benefiting from theft of respondent's fuel' He tufther pleaded that the iespondent's false infbrrners were persons who were actuated by jealousy because of his good pertbrmance. He prayed court to declare that his suspension and disnrissal were wrongtul. He prlled for special, general, and punitive damages and costs ofthe suit.

In its written statement of defence the respondent pleaded that the suspension and disrnissal were Iawful. The lespondent averred that belbre his disrnissal the appellant had been involved in acts oldishonesty, tiaud and breach of truqt, which had caused the respondent substantial loss. Those acts were particularised in the written statement of defence.

The fbllowing issues were trarred at the trial.

- l0 Whether the plaintiff was lawfully suspended. I - Whether the plaintiff was lawfullv dismissed. 2 - \\'hether the plaintiff !tas entitle(l to an\ redress or rclief. -t - 15 The learned trial judge', answered the first and second issues in the afflrmative. In consequence thereof, on the third issue she fbLrnd that the appellant was trot entitled to anv relieft.

'Dissatisfied with the decision of the learned trial judge the appellant appealed to this court on three grounds namely:

- I 'l he trial judgc crred in law and in fact in making wrong conclusions that the Appellant was suspended and dismissed in accordance to the defentlant's stalT standing instructions ancl the lau in support thereol, u herels, not - The learnetf trial judge erred in law and in fact when she failed to properlv evaluate both parties' evidence on court record, which resulted into wrong conclusion :rnd decisions against the Appellant. 2 - The learned trial judge erred in lau'and in fact when she made decisions and orders ag:rinst the Appellant based on h ea rsaY and spcculations.

IIt' nrn'rd tbr thc tbllon in u:-

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- (a) To allow the appeal and to set asitle the judgement of the Iower co u rt. - (b) To allow the appellant's reliefs he had prayed for in the lower cou rt and - (c) Costs of the appeal and of the suit in the High Court.

During the hearing of the appeal the appellant was represented by', learned counsel. Mr. Eric Muhwezi and learned counsel. Mr. James Mutoigo appeared for .the respondent. Counsel for the appellant abandoned grounds 2 and 3 and argued only ground L

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't)n ground I counsel's complaint was in two batches, The flrst one concerned the suspension and the second was on dismissal.

Su[',rrritting on the susl-rcnsion. Mr. Muhu czi contendccl that the suspension of the appellant was wrong tbr three reasons. Firstly, the statf standing instructions provided that the suspension had to be etfected by the functional manager. In the instant appeal the appellant was suspended by the General Manager. According to counsel this deprived the appellant ol his right to appeal to the General Manager. Secondly. according to the Staff Standing Instructions an employee could only be suspended fbr serious breach of company regulations. Counsel argued that in the instant case no such breach was proved. Thirdly, the appellant rvr. strsnended according to Staff Standinrr Reeulations. cxhibit P3i u'hich had not vct come into f'orce. The Staff Standing Instructions ivhich were applicable to the appellant were exhibit P L t5 l()

In reply Mr. Mutoigo disagreed. He supported the leamed trial judge's linding that the appellant was rightlv suspended t'rom ernplovrrent.

In her judgement the learned judge held that the suspension of the appellant was properly done. She found that after serious allegations of dishonesty had been made against the appellant, the rnanagernent team that consistetl ol the .\drninistration ManageriCount,v-, Chairnran, DW5, the Legal Olficer and DW:l who was the Operations Manager of the respondent decided to suspend the appellant. She held that the decision to suspend the appellant was arrived at collectively. She reasoned that Administration Manager was also the Courlty Chairman and as the Stuntling lrrstluctiorrs iust rc,.lLrircd the ,{drninistration Managel to be l(l

'infbnned of suspension of staff, the suspension of the appellant, was theretbre lawtul.

In rr1' r,ieu' counsel's argument that the appellant was deprived of the light to appeal to the Cpunty Chairrnan is not tenable. Obviously that appeal would have been ineaningless since the firnctional rnanager. DW4. and the County Chairrnan Managing Director, DW5 were of the vierv that the appellant should be suspended. The power of the functional manager to suspend the appellarrt was delegated to him by the Managing Director/County Chairman. The one who delegates powers has in law po\\'ers to exercise the same po\\'ers. The appellant was suspended on full pay pending investigations. It is obvious that he was not pre.iudiced in nn\' \\'Av h1 the suspension. Suspension of an enrployee pending investigations was allowgd by the statf standing instructions Exh. Pl. I arn in agreernent with 'the learned trial judge that the respondent's suspension was Iarvf ul. -i l0 ri

Norr l tr.rm to the issue of dismissal

Counsel fbr the appellant contended that the appellant did not comrnit any of the breaches specified in the Stafl Standing Instructions to justify summary dismissal. He argued that the evidence which the learned trial .iudge relied upon to conclude that the respondent lawfully summarily disnrissed the appellant was hearsay, lalse and speculative. He subrnitted that DW4 and DW5 did not reveal the names of people fiom wholr they got infbrmation that the appellant was involved in the theft ol the respondent's fuel. According to him, that evidence should not have been relied upon as it is hearsay. He submitted that there was no witness to prove that the appellant breached the respondent company's regulations. l0

'Cor.rnsel criticised the learned trial judge fbr relying on evidence of Matiya Turyakayo, DW3. He contended that DW3's name did not appear on thc list of witnesses and no leave was obtained tiorn coutl belbre his testinrony was recorded. He submitted that DW3 was a stranger to the cirse rrrrl inrlcccl to the irrr e sti-sation bv tlanagetlent. hencc his narne is not rnentioned by DW4 and DW5.

Counsel tbr the appellairt disagreed. He contended that learned trial judge was right in holding that the appellant had been lawt'ully disrnissed. CoLrnscl algued that the appcllant was in charge' ol security. 'l here was arnple evidence that he was involved in theft of the respondent's fuel and other products. DW3 saw the appellant at least on three occasions stealing tuel tiom the respondent's Tank Farm. Counsel submitted that DW3 was not cross examined by the appellant. -[he appellant collaborated with thieves and caused the release ol Alann Protection Services Guards fiom police custody. lU

In her.iudgernent the learned trial .iudge revieu'ed the respondent's StatI' Starrdinc Instructions and the Iarv on sutntrarv disrnissal. She rc'lied on

t5 tl) Larvs v London Chronicle Ltd. (1959) I WLR 698 tbr the principle that an employer may dismiss the employee summarily if by his or her conduct repudiates the terms ol the contract of employment or is in lundanrcntal brcach of'the corttract. Accordin-g to the resporrdcnt's StalT Starrtling Ir.tstluctiotrs surtl)tar\ clismissal is thr-' sevct'est lbrln of disciplinary action. It Inay be used where a very serious breach of company regulation has bccurred, e.g. cases of dishonest, ernbezzlement or fiaLrd, gross negligence rc'sulting in frnancial loss to the cortlpan).

'She fbund that the reppondent had proved that the appellant had committed the fbtlowing'breaches which were particularised in the plaint j Lrst i l-r'ing [ris surnntarl'disnrissal

- C'ctttspiring untl c'onniving with Aldrm Protection Service Security to steal fuel and related products from the respondent's depot. The learned trial iudge based this finding on the evidence of DlV3 and DW5. - Tha appellant ./ailed to inform Alurm Protection Services and the polive of the intended plot to steal fuel on the 22-7- 2000; He only contacted Alarm Protection Services v,hen tlte theft was in progress. l0 - Tltc ultpcllont htrd thc ,4ltrrm Prtttct'tion Sen'ice.s Guqrds released.from custody. The judge based this finding on the evidence of Dll/4. - The appellant violated the integritu v,ith whiclt 7'stpondcnl't cntplo.t,ee.s tork ond firrther violate cl respondent's trust. The iudge based his .finding on evidence of DIl3, DW4 and DW5. the the the 4.

l5 The judge also fbund that the appellant had told lies. ln cross examination when he insisted that he was not in charge of security whereas DWl, DW2, DW4 and DW5 testitled that he was in charge of security. The judge further noted that the appellant lied when he insisted that he was not in charge of security whereas in exhibit lf a letter he \ /rote to Countv Chairrnan he said he was in charge of secttritv.

I agree with the statement of law regarding summary dismissal as stated by the learned trial judge. The issue, which I have to determine, is whether the evidence adduced by the respondent proves that the appellant committed offences that warranted his summary dismissal.

The duty of this court as first appellate court in civil appeals was stated in **Bank Arabe Espanol vs Bank of Uganda Supreme Court Civil Appeal No. 8 of 1998** (unreported) by Oder JSC as follows:

"The duty of the Court of Appeal to re-appraise evidence on an appeal from the High Court in its jurisdiction is set out in rule 29 of the Rules of the Court of Appeal as follows:

> "29 (1) on any appeal from a decision of the High Court acting in the exercise of its original jurisdiction, the court may,

- *re-appraise the evidence and draw inference of fact;* $(a)$ - in its discretion, for sufficient reason take additional $(b)$ evidence or direct that additional evidence be taken by the trial court or by commissioner; - $(2)$ **.....................................** - **.....................................** $(3)$ - This court recently restated the application of this rule in the case $25$ of Kifamunte Henry vs Uganda Crim. Appl. No.10/97 (SCU) Although the principles stated therein were in (unreported). respect of a criminal appeal, there can be no doubt that they equally apply to civil appeals. On a first appeal, an appellant is entitled to have the appellate court's own consideration of the 30

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evidence as o h,hole ond ils oh)n decision thereon in Kifamunte o Henrv (supra) this courl suid

"Vl/e tgree that on first appeal lhe oppellonl is entitled to hsve lhe appellont's own consideration ond views of lhe evidence as o whole and its own decision thereon. The first oppellote court has o tluty to rehear the case snd to reconsicler the muterials before lhe triol iudge' The appellate court must then moke up its own mind not disregortling the iudgement oppeiled from but carefully weighing and consitlering it. llthen the question arises which witness is to be believed ralher than another and thot question turns on monner and demeanour, lhe appellote courl must be guided by the impression msde on the iudge who saw the witness but there moy be other circumstances quite oparl from the monner and rlemeonour which may show whether a stotement is credible or not which moy wonanl o courl in differing from the iutlge even on o question of facl turning on cretlibitity of witness which the oppellate courl has not l0 see lr.

## See Pantlva vs R (19571 EA 336: Okeno vs Republic (1972) EA 32: ond Chorles BL Bitware vs Ileanda Criminsl Appeal No. 23/859 SCUI (unreoortedl."

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In my opinion the tluty of afirst appellote court as restated in the case of Kifamunte (supru) tpplied lo re-approisal or reevaluotion of evidence hv of/idavit os well as to evidence by ortl

testimony, except of course that impression of demeanour of witness does not arise in the case of affidavit evidence."

- The appellant in his testimony denied any wrongdoing. He testified that he performed all his duties very well and to the satisfaction of the $\varsigma$ respondent. He denied all acts of dishonesty, fraud and breach of trust that caused the respondent substantial loss as was particularised in the respondent's written statement of defence. - In her evaluation of the evidence the learned trial judge did not attach any $10$ weight to the private investigator's report exhibit D.12 and exhibits D13 and D14 the Alarm Protection Services report, and rightly so in my view. These reports were admitted in evidence at the scheduling conference but counsel for the appellant indicated that the reports were to be challenged

at the trial. The appellant challenged these reports on oath at the trial. $15$

The learned trial judge relied on the evidence of DW3 and DW5 to hold that the appellant connived with the Alarm Protection Service Guards to steal the respondent's fuel. I note that learned counsel for the appellant has vehemently submitted that DW3's evidence should be disregarded because his name was not on list of witnesses to testify at the trial and no permission of the court was sought before his testimony was received. With due respect to counsel, he did not object to the reception of this evidence. It is unfair on his part to do so now.

I have considered the evidence of DW3 who stated that he was a defence secretary of the Wabigalo Project Zone. He saw the appellant three times at night stealing the respondent's fuel. On one of those occasions he went on a motor cycle with his brother following the vehicle that was taking

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Lo t5 'stolen luel up to Kabaka's lake Mengo near Pope Paul Mernorial Centre. 1'he appellant gave someltloney "chai" to his colleague Ali. When DW3 asked Ali fbr sorne chai AIi beat him up. He reported to the police and to tl.re Local Council authoritics. He did not tnention the natrre of the appellant and the police did not record a statement fiorn hirn. It is unbelievable that a person who is secretary of defence in the area and theretbre in charge of security would not uention the narne of the appellant to the authorities to whom he had reported. It is not irnaginable that the police would not record statement frorr hirn. One rvtlnders why DS'3 took the trouble at night to follow the tirel thieves up to Mengo if he was not going to takb any action. In cross examination DW3 gave contradictory answers. He stated that he had never seen some Alartn Protection Service stealing tuel and has never talked to any' ASP ofticer about this case. Later he stated that he reported the theft of fuel to one of the ASP ofllcers who advised him to leave the matter because of his satety.

t{cgalding D\\'5's eridetrcc i! r. Muhw'ezi cotrteuded that nrost ol'his evidence was hearsay. He further submitted that the witness dismissed the appellant on mere allSgations. According to the testirnony of DW5 he did not believc the reporl ol' Ochieng Exhibit D. ll. He r'r as concerned that someone else should tell them about the security lapses in their organisation. He constituted their management investigation team consisting of 3 people who were the appellant's manager DW4 and the legal ot'licer. He testifled that during the investigation he interviewed Mr. Asiimwe, one ol the guards, who had been arrested previously. Asiirnwe told hirn that he was worried about his saf-ety. He told hirn that a number o1'urembers 01'statT including the appellant were involved in the stealing of fuel. DW5 furtherltestifled that investigations revealed that the r) l l5

'appellant had compromised a nurnber of security quards. The witness said that his team talked to about l2-15 people who clescribed the appellant as a very dangerous person and that these people were worried about their security. The, witness suspended the appellant on l6i I l/2000 on the basis of these allegations. He required the appellant to comment on ilrcsc allcgations \*hich ucle ntade agaiust hini. The'appellant made an explanation, which did not convince the manageurent team, and he was suspended. ln cross examination DW5 categorically stated: S dismissed on allegations which were not satisfactorilv refuted. l0 (['ndcrlining rnine)

With due respect to the learned trial judge, I flnd that DW5's evidence concerning what he fbund out about the appellant during the management investigation is all hearsay. What Asiimwe and the l2- I 5 people told hinr is all hearsay. I respecttully disagree uith the learned trial judge's conclusion that DW5's evidence proved that the appellant either conspired or connived with the Alarm Protection Service Guards to steal tuel and related products fiorn the respondent's deport.

0 The learned trial .iudge basing herself on the evidence of DW4 fbund that the appellant had the Alarrr Plotection Service Gr.rards released fiorn custody. I have re-examined the evidence of DW4 who was the immediate supervisor ofthe appellant. He knew the appellant as person of high integrity. He did not believe the private investigator's reports (Exhibits Dll. Dl3 and ll). DW4 uas thelelbre a rretttber ol' the managelnent investigating tearn. His evidence is to the effbct that people at Wabigalo narned the appellant as the person who was involved in stealing the respondent's fuel. He could not tnention the names of these people. Then on a day he could not retnetnber a villager went to

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respondent,s offices, looked around and pointed to the appellant as one who was involved in the theft of the respondent's fuel. Again the witness could not disclose the name of the villager because of fear of that person ,s lit-e. It is rather disquieting for an officer of DW4 calibre to say that he does not retnember the date when the appellant was pointed out by a villager as one of the people involved in theft of the respondent's property. One is left wondering how seriously DW4 took the management investigation work to verifu the private investigator's reports. DW4 testified that he was told that the appellant had arranged for the release of Alarm Protection Service Guards from custody. I find that most of the evidence is hearsay. None of the villagers from whom DW4 got information about the participation of the appellant in theft gave evidence. Furthermore, Mr. onyigi, the police officer, did not testiff that it is the appellant who told him to release the guards'

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I agree with the learned trial judge that the appellant did not first tell the police and the Alarm Protection Services Guards of the plot to steal fuel in the night of 221712000. It is apparent from the evidence of DW4 that the appeltant was on leave. He was called back to try and foil the theft of 22l7l2OOO. Stuafl Luwemba DWI was informed by one Wandera who was apparently the manager Kampala depot that they expected some trouble and that he should leave his mobiJe on at night. According to the evidence of Mugabi Kazoba Frank, DW2, who was the Security Personnel Controller of Alarm Protection Services, he disagreed with the appellant about the patrol car to be sent to the scene i.e. the Tank Farm and which gate had to be used. I do not consider that this evidence proved that the appellant was in breach of trust to the respondent' He reported on duty from leave as he was called. Disagreement about the patrol car and the gate to be used was merely an operational

disagreement. After all Alarm Protebtion Services Guards were suspected. In fact, according to the evidence of DW4 who called the appellant from leave, the respondent was dissatisfied with the services of Alarm Protection Services Guards. I would imagine that if the appellant were involved in the theft of that day he would have wamed his collaborators not to steal on that particular day.

The learned trial judge basing herself on the evidence of DWl, DW2 DW3, DW4 and DW5 held that the appellant violated the integrity with which the respondent's staff work. With great respect, I do not agree with the leamed trial judge's finding. I have said earlier that DW3's evidence is not worthy of any belief. DW4 and DW5 knew the appellant as an excellent worker until they received the reports of the private investigator, which they did not believe. I too find it difficult to believe the private investigator's reports, which were based on hearsay evidence. The investigations by the management team were all hearsay.

I have to note that the appellant was an excellent performer in the respondent's company, which is an international company. In the past he helped the respondent to arrest people who stole the respondent's products. Some of them were employees of the respondent and lost their jobs. Others were residents of Wabigalo village including the LCs.ln the circumstances one can not rule out the element of jealousy from the respondent's informers.

It is apparent that in the respondent's company thieving of company property was the order of the day. In his evidence DWl stated

t5 "ASP was guarding the entire oil industry in Uganda. Shell was the most problematic contract that we had. ................. Shell was the most difficult because there were some vested interest in Shell management. Some employees of Shell wanted to make kill out of it that is they wanted to steal fuel from Shell/"

In fact DW1 attributes the termination of his company's security contract with the respondent to the appellant. The testimony of DW1 regarding the conduct of the appellant is on impressions, which must have been very biased because of his firm's interest.

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In their submissions before this court and the court below, counsel for the appellant contended that his client was in charge of health, safety and environment. Counsel for the respondent submitted that the appellant $15$ was in charge of security. The learned trial judge found that the appellant lacked integrity because he denied that he was in charge of security. She premised her finding on the following answers in cross-examination.

- He was sure that he did not corroborate with the thieves who broke 1. 20 into the office and the Tank Farm as he was sure was not in charge of security. - He was sure that he did not cause the release of APC guards from $2.$ police custody as sure he was not in charge of security. - He was sure he did not promise incentives to APC guards to $3.$ 25 corroborate with thieves as sure he was not in charge of security."

I have carefully perused the evidence of the issue of security. It is apparent that the appellant might have been the over all in charge of

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'security for the whole of Shell offices in Uganda. According to evidence of DW4 there were attempts to make the appellant responsible for seculity lbl Uganda and Rriarlda but that was llot concretised.'fhere rvere other otTicers in charge of security at dit-terent points. Those were the respondent's employees immediately at the place of wolk, tbr exarnple, the depot manager at Kampala depot was in charge of security fbr this depot. Alarm Proteition Services was the firrn ernployed by the respondent to guard their premises. Alarm Protection Services would deploy the guards and discipline them. According to the evidence of DW l, he used to contact the appellant as well as DW4 on matters of security. Be that as it may I am of the considered view that even if the appellant's job description stiptrlated that he was in charge of security and in his el'idence denied this responsibilitl' that was llot prool ol cornmission of acts.yustifl'ing summary disrnissal. The stafl standing instruction provides summary dismissal as follows: t0 t5

# "Summary Dismissal

This is the severest form of disciplinary action. lt ma1' be used ryhere a verl' serious breach of company regulations has occurred, e.g.

- l0 - cases of dishonesty, embezzlement or fraud; - gross negligence resulting in financial loss to the com pa ny; - causing or attempting to cause malicious damage to company property; - wilful refusal to carry out lalvful and reasonable instructions; - drunkenness or the consumption of drugs or alcohol while on duty;

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smoking or lighting fires in an area where this is lbrbidden or any other action which is against company's sa l'ety regulations."

The appellant's conduct does not prove any ofthose actions specified in the standing instructions. I appreciate that there was serious suspicion that the appellant was intolved in the theft ofthe respondent's fuel. The allegations amounted to accusations of the appellant that he had committed crimes. The appellant denied all allegations against him. The respondent had to prove those crimes against him before summarily disrnissing hirr. Apart from that the respondent had to determine the appellant's service with notice. lo

The law of employment of master and servant is well settled. An employer has a right to terminate the employrnent of his employee at any time lbr any reason orl fbr no reason at all. See Ridge v Balwin (1965)AC 40. The employer rnust do so in the rnanner warranted by the contract, otherwise he will be liable fbr damages fbr unlawful dismissal. r5

I agree with the submission of counsel for the appellant that the learned trial judge based his judgement on hearsay evidence. Since the respondent had no concrete evidence against the appellant, who insisted that he was innocent, it was wrong to dismiss hirn summarily. Ground I therefore succeeds. l0

'lhe larv is that "vhere a contrilct ol emplol.'nrent stipulates that giving notice tbr a specified period can terminate such a contract, then giving such notice can terminate it. [n case the employer does not give the notice, the employee is entitled to be paid money in lieu of that period of

notice. The dismissed employee is also entitled to recover from the employer other allowances, which he/she would be entitled to get during the period of notice. The dismissed employee is also entitled to deferred pension rights, which can be realised as money due. See Barclavs Bank

# s of Uganda vs Goddfrey Mubiru Civil Appeal No. I of 1998 Supreme Cou rt. (unreported)

The respondents Staff Standing Instructions provided for termination with notice as follows:-

"Termination with Notice.

The compony con ol any lime exercise ils right to terminate an employee by giving one month's notice in writing, or by paying one month's silary in lieu of nolice.

Employees, whose services are terminated with notice will be poitt up to the last doy of notice ond will receive all rheir enliilements in accordance with the regulations of pension fund ond will be enlitled lo be tronsporled back to the point of engagement as per Clause 4.3 below."

In the instant appeal the respondent was at liberty to terminate the appellant's employment by giving one month's notice to the appellant in lieu of notice. The appellant pleaded and testified that he had accrued leave of l6 days, which was worth 1,068,2441:. He pleaded that he was entitled to the provident fund balance o16,860,090.00. On that item he testified that the respondent had a provident fund scheme to which he as an employee, contributed lloh of the basic salary. The employer contributed 5o/o and the employees who leave the respondent's service are

paid their contribution, company contribution and interest. The appellant did not prove his claim for redundancy package and early pension.

In the result I would allow the appeal and make the following orders. The respondent should pay to the appellant the following:-

- One month's basic salary in lieu of notice that is 1. Shs.3, $493,635/=$ . - Transport assistance Shs.361, $200/=$ . $2.$ - Mileage allowance Shs.500, 000/=. $3.$ - Provident fund balance Shs.6, $860,090/=$ . $4.$ - Leave for 16 days Shs.1, $068,244/=$ . 5. - Costs of the appeal and of the suit in the High Court. 6. - Interest at 6% p.m. from the date of judgement till payment 7. in full. Interest must run from the date of judgment because the appellant was given the option to retire with full benefits but he unreasonably declined to do so.

Dated at Kampala this 20 day of the ember 2004.

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C. N. B. KITUMBA **JUSTICE OF APPEAL**

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### HON. JUSTICE G. M. OKELLO, JA CORAM: HON. JUSTICE A. TWINOMUJUNI, JA HON. JUSTICE C. N. B. KITUMBA, JA

## CIVIL APPEAL NO.97 OF 2003

GEORGE NDYABAWE...................................

### **VERSUS**

SHELL UGANDA LIMITED....................................

[An appeal from the judgment of the High Court at Kampala (Maitum, J) dated 10/10/2002 in HCCS No.56 of 2002]

## **JUDGMENT OF TWINOMUJUNI, JA:**

I have read, in draft, the judgment of Her Lordship Justice C. N. B. Kitumba, JA.

I agree with it and I have nothing useful to add.

Dated this....................................

Hon. Justice Amos Twinomujuni JUSTICE OF APPEAL

$15$

$\overline{25}$

$10$

$\mathsf{S}$