Othieno Andrew v National Water & Sewerage Corporation (Civil Appeal No 67 of 2002) [2005] UGCA 92 (1 January 2005)

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

# **CORAM: HON JUSTICE G. M. OKELLO, JA** HON JUSTICE A. E. N MPAGI-BAHIGEINE, JA HON JUSTICE S. G. ENGWAU, JA

### CIVIL APPEAL NO 67 OF 2002

### **BETWEEN**

OTHIENO ANDREW <pre>::::::::::::::::::::::::::::::::::::

#### AND

### **NATIONALWATER**

& SEWERAGE CORPORATION:::::::::::::::::::::::::::RESPONDENT

{Appeal from the decision of the High Court of Uganda (Mugamba, J), dated 3<sup>rd</sup> May 2002 at Kampala in HCCS No 762 of 2002.}

#### **JUDGMENT OF G. M. OKELLO, JA**

This is an appeal from the dismissal by the High Court (Mugamba, J) of the appellant's claim in High Court Civil Suit No 762 of 2002.

The facts which gave rise to this appeal are briefly that in 1991, the appellant had been employed by the respondent as a senior storekeeper.

$\mathbf{1}$

In June 1994, he was laid off. Through his challenged his lay off before the Industrial Court. the termination of his employment was unlawful. union, the appellant That court found that

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In June 1999, the respondent re-engaged the appellant, but later asked him to retire. The appellant accepted and retired in November that year. The respondent paid his terminal benefits. The paid benefits excluded the appellant's salaries and other allowances for the period between <sup>110611994</sup>and 110611999 when he had been laid off. The respondent however, in error took that period into account for purposes of computing the appellant's benefits.

The appellant was aggrieved by that and sued the respondent in the High Court, claiming the arrears of his salaries for the period when he had been laid off.

The respondent resisted that claim and counter-claimed for the salaries inadvertently paid to the appellant for that period when computing his terminal benefits.

The High Court heard the suit and dismissed the appellant's claim but allowed the respondent's counter-claim. Aggrieved by that decision, the appellant has appealed to this court on the following grounds:-

The learned judge erred in larv and fact when he totally failed to consider the evidence adduced by the appellant vis-avis that of the respondent and thereby came to <sup>a</sup> wrong decision. t.

- 2 The learned judge erred in law and fact when he considered extraneous matters not the subject of the appellant's claim and thereby came to a wrong decision. - The learned judge erred in law and fact when he allowed the counter-claim when the same had not been strictly proved. -t

At the hearing of this appeal, Mr. Stephen Mubiru represented the appellant, while Mr. Apollo Makubuya appeared for the respondent.

Arguing the appeal, Mr. Mubiru summarised the above grounds into one issue - whether the period between l/06/1994 and 1/06/1999 when the appellant was laid off, was reckonable for purposes of:-

- a Computation of retirement benefits - b. Payment ofsalary arrears?

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He contended that that period is in law considered to be part of the appellant's continuous service for purposes of determining his terminal benefits. The law he relied on is that where an employee is dismissed unlawfully and is either reinstated or re-engaged following that dismissal, then the interval between the dismissal and reinstatement or reengagement, counts as part of the continuous period of service. He cited as authorities for that proposition:-

Harvey on Industrial Relations and Employment Law Issue 127 paragraphs 330 and 332. I

## <sup>2</sup> Chitty on Contracts, 25th edition paragraph 3545.

o Leamed counsel pointed out that the High Court had found that the appellant had been unlawfully dismissed. Therefore, he argued, the period between 110611994 and l106l1999 was reckonable for purposes of paying the appellant's salary. He criticised the trial judge for finding to the contrary and for having allowed the respondent's counter-claim.

> Mr. Makubuya did not agree. He contended that the trial judge was right. He pointed out that the trial judge considered this question carefully and found rightly, that the appellant was not reinstated in his service after his services had been terminated. He was instead re-engaged, meaning that he was re-contracted afresh. It would, therefore, he argued, be wrong to pay the appellant's salaries for the entire period when his services had been terminated.

> Learned counsel stated that the authorities cited by Mr. Mubiru were not applicable to this case because they were not statutes of general application, nor were they principles of common law.

> On the counter-claim, Mr. Makubuya submitted that the evidence showed that the respondent inadvertently included the appellant's salaries for the period between l10611994 and 110611999 when computing his terminal benefits. As a result, there had been an over-payment of 5,393,1l5/:. The trial judge rightly found this to be so and ordered the appellant to refund it. He urged us to dismiss the appeal and uphold the trial judge's findings.

Exercising his right of reply, Mr. Mubiru conceded that the autorities he cited were not statutes of general application, nor were they principles of common law, but that they are persuasive.

The trial judge dealt with this issue in his judgment as follows:-

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" Regarding the second issue, the period June 1994 to June 1999 was when the plaintiffs employment had been terminated before he was re-engaged. In the issue above, I have found that the plaintiff was not re-instated. Exhibit P5 a letter dated 23'd June, 1999 from the defendant to the plaintiff. It clearly stated that the plaintiff was being re-engaged effective l't June 1999 as senior store keeper. In his testimony, the plaintiff stated that he had sought to be reinstated, but instead the defendant had elected to re-engage him. He was reengaged, his original preference not withstanding. That he was re-engaged is, therefore, not in doubt and it is on that basis the second issue is to be considered. Was he or was he not eligible to payment as claimed or at all. It would be wrong to have the plaintiff paid for a period his services had been terminated. His claim, if any, would be in damages relating to the manner in which his employment contract came to an end. See Denmark Production Ltd vs Boscobel Productions Ltd (1968) 3 ALL ER 513. I find the second issue is to be answered in the negative. "

The second issue was worded thus:-

o

"ll/hether the plaintiff is entitled to be paid his salary by the defendant for the periodfrom June, 1994 to June, 1999?"

I cannot fault the leamed trial judge in the manner he handled that issue. I think the law goveming termination of contract of service of a servant by his master in this country is well settled. A master may terminate the contract ofservice with his servant at any time and for any reason or even for none at all. Contract of service is generally not specifically enforceable.

In Francis Vs The Municipal Council of Kuala Lumpur (1962) 3 ALL ER 633, the appellant was employed by the Municipal Council of Kuala Lumpur. By a letter-dated lll0l1957, he was dismissed from his job by the council. Under the terms of his employrnent, the President should have dismissed him. The President subsequently, dismissed him on 2811011957.

The question was whether the period between l/1011957 and 2811011957 when the appellant was on a defacto dismissal, his services with the council should be considered as having continued.

The Privy Council held that it would be unreal to concede to the contention that since lll0ll957 the appellant continued to be in the service of the council. He must be treated as having been wrongfully dismissed on lll0l1957 and that his remedy lay in damages.

When there has been a purported termination of a contract of service, declaration to the effect that the contract of service still subsists will

rarely be made. This is a consequence of the general principle of law that courts will not grant specific performance of a contract of service.

# That decision was followed in **Vidyodayo University of Ceylon Vs Silva** (1964) 3 ALL ER 865 and in Okori Otto Vs UEB (1981) HCB 53.

On the above principle, therefore, it would be wrong to concede to Mr. Mubiru's argument that the appellant's services with the respondent continued through from June 1994 to June 1999 when his services were defacto terminated. For the wrongful termination the appellant's remedy lay in action for damages as the learned judge said.

As for the counter-claim and the resultant order for refund, I agree with the trial judge. The appellant was not entitled to salary during the period when his services were terminated. His subsequent re-engagement was a fresh contract. It is not an extension of the old one. He can not enrich himself from the respondent's error. He has to refund that money which had been inadvertently paid over by the respondent to him.

In the result, I would dismiss the appeal and uphold the trial judge's decision.

Dated at Kampala this. .. day of .. Mev. ...............................

M. OKELLO **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. E. N. MPAGIE BAHIGEINE, JA HON. JUSTICE S. G. ENGWAU, JA

# **CIVIL APPEAL NO.67 OF 2002 BETWEEN**

OTHEIENO ANDREW::::::::::::::::::::::::::::::::::::

### **AND**

### **NATIONAL WATER**

& SEWERAGE CORPORATION:::::::::::::::::::::::::::RESPONDENT.

[Appeal from the decision of the High Court of Uganda (Mugamba, J), dated $3^{rd}$ May 2002 at Kampala in HCCS No. 762 of 2002.

## JUDGEMENT OF A. E. N. MPAGI BAHIGEINE, JA

I have read the judgement of my lord G. M Okello, JA.

I entirely agree with his findings and have no comment to make.

Dated at Kampala this ... 7 th day of November ....................................

**A. E. N. MPAGI BAHIGEINE JUSTICE OF APPEAL.**

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

CORAM: HON. JUSTICE G. M. OKELLO, JA HON. JUSTICE A. E. N. MPAGI-BAHIGEINE, JA HON. JUSTICE S. G. ENGWAU, JA

CIVIL APPEAL NO. 67 OF 2002

### **BETWEEN**

### OTHIENO ANDREW ::::::::::::::::::::::::::::::::::::

### AND

### **NATIONAL WATER &** SEWERAGE CORPORATION ::::::::::::::::::::::::::::::::::::

[An appeal arising from the decision of High Court of Uganda at Kampala (Mugamba, J.) dated 3<sup>rd</sup> May, 2002 in HCCS No. 762 of 2002]

### JUDGMENT OF ENGWAU, JA

I had the benefit of reading, in draft form, the judgment of my brother, Okello, JA and I entirely agree with his findings and orders made therein. I have nothing useful to add.

7 th day of November 2005. Dated at Kampala this ....

S. G. Engwau JUSTICE OF APPEAL