Otoi v National Water and Sewerage Corporation (Civil Appeal No. 4 of 2008) [2009] UGCA 66 (20 May 2009)

Full Case Text

#### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

## CORAM: HON. JUSTICE S. G ENGWAU, JA HON. JUSTICE A. TWINOMUJUNI, JA HON. JUSTICE C. N. B KITUMBA, JA

## CIVIL APPEAL NO.4 OF 2OO8

#### BETWEEN

### SIMON PETER OTOI APPELLANT

AND

### NATIONAL WATER AND SEWERAGE CORPORATION......... RESPON DENT

(Appeal from the judgement of the High Court at Mbale (Katutsi J) dated l2th January 2006 in H. C. C. S No.86 of 2000)

# JUDGEMENT OF ENGWAU. JA:

This is an appeal against the judgement and orders of the High Court at Mbale presided over by Hon. Justice J. B. A Katutsi delivered on the l2'h day ofJanuary 2006.

The brief facts are that the appellant was an employee of the respondent. He was employed as an Assistant Engineer subject to the respondent's conditions of service and staff regulations. On the 2nd October 1998, the appellant was transferred from Kampala office to Tororo offlrce as the area

manager which transfer he declined by letter of 3'd October 1998. As a result the appellant was suspended on the Stn October 1998. The appellant's suspension was lifted on the 27'h November 1998 but the appellant was demoted to a lower salary scale 4. By a letter dated 10'h October 1998, the respondent gave the appellant a last opportunity to report for duty within two weeks but the appellant instead applied for voluntary retirement on 23'd December 1998, one day before the deadline. Consequently the respondent terminated the appellant's service without benefits on 29th April 1999. The appellant filed Civil Suit N0.08 of 2000 in Mbale High Court which suit was dismissed hence this appeal.

The following were the grounds of appeal:

- I) That the learned tialjudge erred in law andfact in holding that the demotion of the appellant and the terminqtion of the appellant's employment with the respondent were lawful. - 2) That the learned trial iudge erred in law and in fact in holding that the respondent was iustiJied in summaily dismissing the appellant without beneiits. - 3) That the learned trial iudge erred in law and fact in failing to consider the appellant's evidence that he was being victimised by the top management of the appellant Had he done so he would have come to a different conclusion. - 4) Thqt the leaned trialjudge erred in placing undue credibility on the evidence of D. WI when he had no opportunity to observe the demeanour of the witness while testifying - 5) That the above errors and omissions have occasioned a substantial miscarriage ofjustice to the appellant.

)

The appellant prayed for orders:

- a) That the said judgement and orders be set aside - b) That the respondent pays the appellant his retirement package in accordance with the Collective Bargaining agreement between the respondent and the Uganda Employees Union oflune 1998 and the terms and conditions of the appellant's employment. - c) That the respondent pays to the appellant his terminal beneJits and general damages as claimed in the lower court - d) That the respondent pays the appellant costs in this court.

Three issues were framed and agreed upon by the parties from the above grourds ofappeal and they are:

- 1) ll/hether the demotion and termination of the appellant's employment with the respondent without beneftts was justiJied or not. - 2) llthether the learned trial judge properly evaluated the evidence on record or not. - 3) llhether the appellant is entitled to the relief sought in the plaint

The parties were represented by Kenneth Omoding, learned counsel for the appellant and A. Sembatya Kaggwa for the respondent. Counsel for the appellant argued all the issues together and counsel for the respondent also chose to follow the same order. For ease of reference I will follow the order adopted by leamed counsel for the appellant.

After stating the brief facts, counsel for the appellant contended that the appellant was not given a hearing before the board ofthe respondent. He argued that the rules of natural justice are that he should not have been

dismissed without being heard. He added that the hearing referred to by the trial judge is in regard to the report to minister but not in respect of his allegations. He submitted that the appellant's evidence about his decrease in salary scale was not considered. Counsel argued that the only evidence that was considered was that of Dr. Wana Etyem Charles, (DWl ). It was counsel's contention that the termination of the appellant's employment was unlawful and that if his evidence had been considered, the trial judge would have found that the appellant was entitled to the relief prayed for. His prayer is that the court allow the appeal with costs.

Mr. Sembatya, for the respondant corporation, opposed the appeal and submitted that the issues framed could not succeed. He stated that after a letter of transfer was given to the appellant, he stated, ,,1 cannot and will not take my appointmezl.,, Counsel argued that by his conduct the appellant had repudiated the contract of employment. counsel submitted that by a letter dated l8'h December 1998, the appellant was recalled but he refused to take up his appointment. Counsel added that DWI in his evidence had named the engineers who had registered and the appellant was not one of them. Counsel contended that the trial judge considered the issue of the appellant's demotion and salary scale. He submitted that the appellant was not a registered engineer and did not meet requirements to salary scale 2. He was, therefore, entitled to salary scale 4. The transfer was indeed not a punishment because he was subject to a transfer anywhere according to terms and conditions of service.

counsel submitted that on 23'd December 199g, the appellant received a reappointment letter dated lOm December 199g. The deadline in the

letter was 24th December 1998. He tendered a letter of voluntary retirement on23'd December 1998 instead of reporting for duty. Counsel submitted that an application for voluntary retirement and walking away amounted to abscondment, therefore, that demotion and termination of the appellant's service were lawful. He prayed for appeal to be dismissed with costs.

Counsel for the appellant in reply stated that the appellant's evidence conceming registration of engineers was not considered by the trial judge yet he believed evidence of DWl.

The first issue is whether demotion and termination of the appellant,s employment with the respondent without benefits was justified. Regarding the use of the word demotion, I would agree with the trial judge that the appellant was not demoted but simply retumed to his substantive salary scale 4.4, given that he was not a registered engineer. Therefore the word demotion in this case should not have been used.

Counsel for the appellant in his arguments raised various issues. One of the arguments was that the appellant was not given a hearing before the board and that he should not have been dismissed without being heard. The trial judge in considering this issue quoted article 4.04 of the Conditions of Service and Staff Regulations 1995, Exhibit p.l on Disciplinary Procedures which states thus;

#### 4.04 RIGHT TO DEFENCE

Inaltcasesofdisciplinaryaction,anemployeeshallbeentitledto know the whole case against him/ her and shall be accorded ample opportunity to make his/her defence.

He then stated,

"Learned counsel for the plaintiff argues that assuming the plaintiff actually breached the alleged quoted article 3'02 (b) and (c) of the terms and conditions of sewice the issue (of faa) then is whether the above quoted disciplinary procedures to terminate him were followed' To this I now turn. Suffrce it to say that in his evidence plaintiff said: "I was requested in writing to go and testify before the Board. I testiJied on /h January 1999."

with due respect, I find that the judge erred when he omitted to consider the appellant's evidence properly. In his evidence the appellant stated thus;

,,onmyvoluntaryretirementhe(thenewManagingDirector)toldme itwouldbeprocessed. HetoldmethattheBoardofDirectorshad instituted a committee to investigate allegations against top officials. I told him I was not living in Kampala but that I would go to testify in that committee if requested, . .

I was requested in writing to go and testify before the Board I received aletter through my wW in January, 1999. I reported there' I testiJied on /h January 1999."

Fromtheevidenceabove,lconcurwithleamedcounselforthe appellant that the appellant was called to testifo in regard to allegations against top officials to the minister and not about termination of his employment. Therefore if it is true that the appellant's employment services were terminated without him being given a hearing, this would be unfair and is against the rules of natural justice. However, in this instant case no injustice was occasioned on the appellant given his conduct. To explain this, I will look at the issue of the appellant's termination and why he was terminated. The question or issue then is whether the appellant's conduct would justiff his dismissal without hearing. The answer to this can be found in the explanations given by the trial judge. In dealing with this issue the judge considered the reasons that led to the appellant's termination. He arrived at the conclusion that it was due to the appellant's abscondment from duty in Exhibit p. 10. He quoted the relevant part of the exhibit which I reproduce here for purposes of clarity.

### RE: ABSCONDMENT FROM DUTY

At its meeting held on 25'h March 1999, Board of Directors observed that you were required to report to the Director Technical Services within two (2) weeks subsequent to your earlier suspension from duties. The board noted with a lot of concern that you did not report to the Director Technical Services as instructed and this has been interpreted as abscondment from work You therefore automatically ceased to be an employee of the corporation when you failed to report in accordance with your terms and conditions, particularly Article 3.02(b) and Article 3.03

# l) you will not be paid any terminal beneJits.

He also quoted Article 3.02 O) of the Terms and Conditions of Service agreed to by the appellant.

Article 3.02 (b) reads as follows:

)

"Employees shall have strict regard to the hours of work laid down by the corporotion. An employee shall not be absent from duty without permission of the appropriote, Head of Directorate, Department of Area Manager.

c) an employee shallfaithful\$ and diligently discharge any duties upon which the person placed in authority over him shall think it desirable to employ him. An employee shall devote his whole time to the senice of the corporation and shall not engage in any other remunerative or nonremunerative service which interferes with the performance of fficial duties.

It is a fact, therefore, that the appellant was terminated from employment because he failed to show up for employment for two weeks in disregard to Article 3.020). It is also a fact that by this time he was employed by SNV in Arua as he stated in his evidence.

The appellant was instructed to move to Tororo as Acting Area Manager as stated in Exhibit D3. He however stated his position in another letter dated 3'd October 1998 thus, ,,1 cannot ond will not take up the appointment...

I am of the opinion that there are younger people who can suffer these "ping pong" movements without suffering serious social costs, Being a parent I cannot simply be moved from town to town like a hatchet man, and I am ready to pay the ultimate sacriJice in these circumstances,,,

The learned trial judge also considered Article 2.06 of the Terms and conditions of Service agreed to by the appellant which states as follows;

#### TRANSFERS "Employees may be transferred from one Area to another from time to time or from one department or section to another in the same Area."

After considering the above provisions, he stated;

The letter written by the plaintiff on 3'd October 1998 was written in clear breuch of this term and condition of employment. His acts and conduct can well jit in what LORD COLERIDGE, C. J laid down as a test in FREETH V BURR (1874), L. R9. C.p 208. He said ;

".,. the true question is whether the acts and conduct of the party evince an intention no longer to be bound by the cofitract; He continued,

In the case of RE RUBEL BRONZE AND METAL C. ANDVUS (tgt8) I K. B. MC CARDIE J said;

"...in every case the question of repudiation must depend on the character of the contract, the number and weight of the contract, the number and weight of the wrongful acts or assertions, the intentions indicated by such acts and words, the deliberation or otherwise by such acts and words, the deliberation or otherwise with such acts and words, the deliberation or otheruise with which they are committed or uttered on the generol circumstances of the case.,,

Having considered the above case, thejudge went ahead to state his position; "Here the plaintiff in language lacking any ambiguity stated, u...1 cannot snd iltill not take up the appointment...', evinced an intention not to be bound by the terms and conditions of his employment any longer. There was emphasis placed on these words making it clear that the intention not to be bound by the terms and conditions of his employment any longer.

# There was emphasis placed on these words making it clear that the intention was irreversible."

In my opinion, the judge arrived at the correct conclusion after considering the appellant's conduct. I find no reason to fault him. The trial judge considered the evidence of the appellant further in paragraph 6 of the same letter where the appellant stated,

"I am of the opinion that there are younger people who can suffer these "ping pong movements" without suffering serious social costs. Being a parent, I cannot simply be moved from town to town like a hatchet man, and I am ready to pay the ultimate sacrifice in these circumstances."

After considering all the above, the trial judge stated;

"He was already referring to the transfer as 'ping pong movements' a strong indication that he would not be bound by that term in the contract. That he would not report on duty as instructed was a long gone conclusion."

#### He continued,

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" Despite the fact that he should have been summarily dismissed he was given the last opportunity to regain his senses as in Exhibit P.6 where he was given an opportunity to report for duty within two weeks."

Having considered the findings of the judge above, I entirely agree with him on the above mentioned issues and I cannot find any reason to fault him.

The appellant was not given a hearing before termination having absconded from duty, having refused to take up his appointment, having got employment elsewhere. The respondent was justified in summarily dismissing the appellant. The appellant was chosen for the water project in Malaba because he had the following qualities, he had experience in the

National Water and Sewerage Corporation, secondly he had knowledge of project management and lastly he was somebody with a strong character but he refused to take up the opportunity. There was nothing more that the respondent corporation could do for him. They were justified in handling him in that way having been lenient with him.

On the question of terminal benefits, I agree with the trial judge that since the respondent corporation was justified in dismissing the appellant, they were not under contractual duty to pay terminal benefits since he disobeyed lawful orders thus breaching the essential component of his employment with the respondent.

Another issue raised by the appellant's counsel regards the appellant,s reduction in salary scale from 2.0 to 4.0. Counsel stated that his evidence on this issue was not considered by the trialjudge. In his evidence, the appellant stated;

"It was not in the terms and conditions of service that the engineers be registered There was a circular written by Dn ll/ana who was the acting Managing Director informing Engineers that we should be registered within two years. I did not get regktered because it was not possible under the circumstonces in the corporation because a person aspiring to be registered had to undergo a pupilage of two years supervised by a Registered Engineer, It is a legal requirement under the Engineer Registrotion Act "

The appellant then went on to state that a one Alex Gisagara, who was the Area Manager and his (the appellant's) supervisor was not a registered engineer. He also mentioned that Charles Odonga who was the Chief Engineer Operations and who was senior to Gisagara was also not a registered engineer. Considering the appellant's evidence above' I come to theconclusionthattheappellantwasineffectsayingthathisreductionin salary scale was not a requirement but was a malicious act by top officials in the respondent corporation.

DW1 in his evidence stated;

"There was a requirement for engineers to be registered' Not all engineers in the corporation were registered' They were very few' They knew of the requirement lo be registered because many of the engineers were not making any elfott to be registered, the case was brought to the attention inl994 or 1995 of the requirement under the Engineers Act' 1969. And the Board resolved that any engineers who did not rcgister coulil only assume substantive appointment uP to scale 4' Any appointment above would be held on an acting basis and temporary' If the situation changed he was to revert to the highest position possible, which was scale 4. I signed that And afier that circular any graduate was duly madeawareofthis. IhadoneCharlesodongointhecorporation. Hewas not a registered engineer. The effect was that he never held any substantive post beyond scale 4 except only on acti"g basis' It was the same for Alex Gisagara. He was not registered and was in the same situation. The plaintiff was in the same category"'

It was not necessary to have a registered engineer as your immediate supemisor in order to be registered as an engineer' It only needed general supemision by a registered engineer."

ItwasclearlystatedbyDWlthatsincetheappellantwasnotaregistered engineer,hewasnotentitledtosalaryscale2.0. Theappellanthimselfstated that a circular was distributed informing engineers to be registered within two years which he failed to do. In my opinion the appellant was given this acting position because he possessed the required qualities. However, due to his misbehaviour, he was returned to his substantive salary scale which he was entitled to. I entirely agree with the trial judge and disregard the appellant's allegations that he was demoted due to malicious acts of top officials since it was a requirement for one to be registered in order to be fully entitled to salary scale 2.

On the prayer by the appellant for a voluntary retirement package in accordance with the Collective Bargaining Agreement between the respondent corporation and Uganda Public Employees Union dated June 1998, I reiterate what the trial judge held that since the plaintiff did not leave the defendant corporation under this scheme, it could not be stretched further for him to be entitled to any benefit coming under that scheme.

Having considered all the evidence available on the record and having listened to arguments from both parties, I find that the trial judge properly dealt with the issues raised and I find no reason to fault him. In the result, I would dismiss this appeal with costs here and in the lower court for lack of merit.

Dated at Kampala this.................................... Jugoran S. G Engwau Justice of Appeal.

#### THE REPUBLIC OF UGANDA

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

### CORAM: HON. JUSTICE S. G. ENGWAU, JA HON. JUSTICE A. TWINOMUJUNI, JA HON. JUSTICE C. N. B. KITUMBA, JA

### CIVIL APPEAL NO,4 OF 2OO8

SIMON PETER OTOI APPELLANT

### VERSUS

### NATIONAL WATER AND SEWARAGE CoRPoRATION............. ............. RESPONDENT

#### [Appeal from the judgment of the High Court at Mbale in HCCS No.86 of 2000, (Katutsi, J) dated 12'h January, 20061

#### JUDGMENT OF TWINOMUJUNI. JA.

I have had the benefit of reading the judgment, in draft, of His Lordship Hon. Justice Engwau, J. A. I agree with it and I have nothing useful to add. 30

Dated at Kampala this 2oh aar of ..t...!. 2009.

35 2

on. OS lnomu.lunr 40 JUSTI tl OF AP AL

# THE REPUBLIC OF UGANDA

IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

CORAM: HON. JUSTICE S. G. ENGWAU, JA. HON. JUSTICE A. TWINOMUJUNI, JA. HON. JUSTICE C. N. B. KITUMBA, JA.

# GML APPEAL No.4 OF 2OO8.

SIMON PETER OTOI :::::::::::r:::::::::::::::::::::::::::::::::: APPELLANT

### VERSUS

NATIONAL WATER AND SEWERAGE I CORPORATION l::::::::::::::::::: RESPONDENT

[Appeal from the Judgement of the High Court at Mbale in HCCS No.86 of 2OOO, (Katutsi, J) dated l\* January, 2006l

## JUDGEMENT OF KITUMBA. JA.

Ihave had the benefit of reading in draft the judgement of Engwau, JA

Ientirely agree with it and have nothing more useful to add

t1 Dated at Kampala this '-) -, day of 2009.

C-H^(

G. N. B. Kitumba JUSTICE COURT OF APPEAL