Shell (U) Limited v Ndyabawe (Civil Appeal 6 of 2005) [2006] UGSC 25 (23 November 2006)

## rHr Rrpualrc oF UGANDA

### i IN THE SUPRFME COURT OF UGANDA AT MENGO

R A (CORAM: ODE KANYEIH (RIP), TSEKOOKO, KAROKORA, MBA AND KATUREEBE, JJ. S. C.)

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# CryIL APPEAL No.6 OF 2005

## BETWEEN

) SHELL (UGANDA) LTp APPELLANT

AND

GEORGE NDYABAWE ,,..... RESPONDENT

[Appeal from a decision ol he. Court of Appeal at Kampata (Okellq Twinomujuni and Kitumbat JJ. A) datedtzfr DecembeL 2OO4 in Civit Appeat No.g7 of 2OO3J ' JUDGt4ENT OF TSEKOOKO, JSC.

The respondent, Georgq Ndyabawe, brought an action in the High Court against the appellant for wrongful dismissal. Maitum, J, dismissed the suit but her judgment was reversed by the Court of Appeal. Hence this appeal. The main appeal was actually struck out and what we are dealing with now is a cross-appeal by the respondent in the main appeal whom I shall hereinafte refer to as the cross-appellant.

The appellant is a conlpany dealing in various petroleum products. shall hereinafter refer it as the company, I

The death of late Ju disposal of this appea ice A. H. Oder, JSC, (RIP) led to the delay in He presided over the hearing of the appeal. We all agreed on the final decision before he passed away.

Although the main appeal was struck out because it was filed out of time without leave of this Court, it is necessary to give the back ground to the dispute that ended up in court for a proper appreciation of the consideration of the cross-appeal.

The cross-appellant was an employee of the company. He had been employed for ten years before he was dismissed. While in employment his performance was rated very good. He received several awards and bonuses because of his excellent performance. There were serious incidents of thefts of the company fuel from 1996 up to 2000. The cross-appellant was involved in investigating the thefts which led to the arrest and the prosecution of some people in the company and in the neighbouring area of Wabigalo. The theft of fuel escalated. The company was losing about 12,000 litres of fuel weekly. During June and July, 2000, two serious incidents of burglary occurred. In June the Alarm Protection Services Guards who guarded the company's depots were drugged and the company's headquarters were burgled into. In the night of $21^{st}$ and $22^{nd}$ July, there was an attempt to steal fuel from the company's Tanks Farm. All these incidents were reported to the police but apparently the police was slow in its investigations. The company employed a private investigator who investigated the thefts and implicated the cross-appellant in the thefts.

Because the cross-appellant was rated as an excellent performer, the management did not believe the private investigator's reports. So management constituted its own investigation team to verify the allegations that had been made. The team consisted of: Ian Jaffrey Bromilow, the Managing Director/Country Chairman, DW5, one George Bamugemereire, the company Secretary/Human Resources Manager and

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Ivan Kyayonka, the Company Supply and Operations Manager, DW4. This team established that the cross-appellant was involved in the theft of fuel and so by letter exhibit P.11, he was suspended from employment on 16/11/f000. The cross-appellant was requested to explain the allegations afainst him. He gave his detailed explanations by given the option either ti resign with full benefits or to be dismissed. He trequested for 7 days tolconsult. On 2717U2000, there was a follow up meeting between him and the management team. He decided not to resign. DW5 there and then gave him the letter of dismissal, exhibit P.16. his letter daled l6lt2lZ management held a mj Resources Manager attl 000, exhibit P.12. On 201tU2000 the company peting with him. DW4, DW5 and the Human rnded that meeting. The cross-appellant was

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Consequently, the crols-appellant sued the company for wrongful suspension and wronOfr.il dismissal because, according to him, the rules of natural justice, labour law and Staff Standing Instructions (SSI) were not followed. ne furtherlaverred in the plaint that the company based his dismissal on false alleOitions that had been made by persons whom he had prevented from befefitinO from theft of fuel. He further pleaded that the company's falsd informers were persons who were actuated by jealousy because of his good performance. In the suit he claimed for special, general, and punitive damages and costs of the suit.

had been involved in actt In its written statement of defence, the company pleaded that the suspension and dismissiFl were lawful, because before his dismissal, he s of dishonesty, fraud and breach of trust, which had caused th substantial loss. Those acts were particularised in the wfItten f defence.

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Three issues framed for the trial court to decide were as follows:-

1. Whether plaintiff was lawfully suspended.

Whether the plaintiff was lawfully dismissed.

3. Whether the plaintiff was entitled to any redress or relief.

The learned trial judge, Maitum, J., answered the first and second issues in the affirmative and consequently, on the third issue she found that the cross-appellant was not entitled to any reliefs. He successfully appealed to the Court of Appeal which awarded him damages for wrongful dismissal. The company filed an appeal to this Court, based on some seven grounds of appeal. Subsequently the cross-appellant lodged a cross-appeal containing three grounds of appeal as well as a Notice of grounds for affirming the decision of the Court of Appeal. Mr. Muhwezi, counsel for the appellants, quite properly, abandoned the notice to As already stated, the main appeal was struck out for being affirm. incompetent having been filed out of time without leave of this Court.

I have now to consider the cross-appeal. The cross-appeal is based on three grounds and it is against part of the decision of the Court of Appeal. Mr. E. Muhwezi, presented written arguments in support of the cross-appellant, while Mr. Luswata, counsel for the company made oral submissions in opposition to the cross-appeal.

In the first ground, the cross-appellant complains that the learned Justices of Appeal erred in law and in fact in holding that suspension was lawful.

This ground was actually ground one of the memo of Appeal which the cross-appellant, as appellant filed in the Court of Appeal. Indeed that was the only ground which was argued by Mr. Muhwezi in that court.

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r the cross-appellant criticised the decision of the Court of Appeal beca e of part of a passage appearing in the lead judgment of Kitumba, :]A in which she upheld the conclusions of the trial judge, Maitum, -:., tnat suspension of the cross-appellant was lawful. Counsel selected just a portion of the relevant passage for criticism. In this Court, counsel

At page 6 of her judgment, Kitumba stated:

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"In my view, counselS argument that the appellant was deprived of the right to appqal to the county (sic) chairman is not tenable. Obviously that appeal would have been meaningless since the F4tnctional Mana l) W4, and the County (Sic) Chairman/Managing Director, DWd of the view that the respondent should be suspended. The wer of the Functional Manager to suspend the appellant was de(eOated to him by the Managing Director/Country Chairman. The one who delegates power has in law powers to exercise the same powers. The appellant was suspended on full pay pending investigations. It is obvious that he was not prejudiced in any way by the suspension.

Suspension of an employee pending investigations was allowed by theistaff standing instructions, Exh. P,L I am in the learned trial judge that the respondents su.,pensnn was lawful." \*rn agreement

I have emRhasized th!I passage which counsel for the cross-appellant chose for criticism. unsel's arguments are not quite clear. Counsel contended that the above finding of the Court of Appeal is misconceived. He premised this contention on the fact that Staff Standing Instructions (SSI) gave power of suspending an employee to the Functional Manager,

He has to suspend I an employee with the knowledge of the Administration Managqr (Managing Director). Thereafter, an appeal against such suspensiQn went to the same Managing Director whose i decision is flnal. In co{rnsel's opinion, these provisions in SSI amounted to a binding contract of service between an employee and the employer. Counsel contended tha{ although this was argued in the trial court and in the Court of Appeal, the latter court did not properly direct itself to it and so it made a wrong decision. Learned counsel appears to suggest that because the court did not specifically mention every one of his contentions, therefore, the contentions were not considered. I think that the courts did take his views into account. The passage quoted above from the judgment of Kitumba, JA,, shows this.

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Counsql further claime[ that the holding by the Court of Appeal that SSI I allowed suspension of 5n employee pending investigations is misconceived because the cross-appiettant never challenged that fact. Counsel argues that his client only cheillenged violations of SSI by the Managing Director. (I do not quite appreciate the value of this submission and how it advances the cross-appellant's case). Learned counsel appears to argue that the Managing Director should have followed the SSI rather than the li{emorandum of Articles and Association of the company when he suspended the cross- 4ppellant. According to counsei, the SSI authorised 'i suspension onlv wherb an employee had committed a very serious breach of company regutations but did not justify outright sumniary dismissal.i He concluded that the Court of Appeal failed to consider the merits of buspension and so made a wrong decision. Counsel relied on PETER VS SUNDAY POST [1958] EA 424 especially at page' 435 para B,

Mr. Luswata supported the decisions of the two Courts below that suspension was lawful. Learned counsel argued that although the Managing Director/Country Chairman had delegated the power to suspend an employee to the Functional Manager, the Managing Director himself lawfully suspended the cross-appellant. Counsel relied on exhibits P1, PII and P.33 and to the evidence of Ivan Wambuzi Kyayonka, the Operations Manager of the company.

Exhibit PI is the staff standing instructions, Exh. P11 is the notice of suspension while exh. P.33 is an extract from SSI. Counsel relied on the authority of Huth Vs Clarke (1890) 25 QBD591 as to the exercise of delegation of powers.

It is common ground that the company had staff standing instructions (SSI). It is apparent that the overall administrator of the Company is the Managing Director/Country Chairman. Below him are managers, supervisors and other staff. Apparently, individual managers are assigned specific functions. Hence the title Functional Manager. Exhibits PI and P33 contain the Staff Standing Instructions which regulate the various aspects of management of the company including the discipline of employees. The fact that the Managing Director is overall Administrator is clear from that part of SSI governing conflict of interest. The second bullet states in part-

"An employee cannot accept employment with, nor become an officer of, any commercial,................ Without the prior written approval of the Managing Director........"

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SSI No. D I regulates discipline. According to it, the responsibility to uphold discipline rests both individually and collectively with all employees of the company with Functional Managers ensuring observance of the various rules and regulations within their province. This did not exclude the Chairman/Managing Director from discharging the same functions.

Dishonesty and lack of integrity are grouped by the SSI under discipline. Under clause 6.1 a Functional Manager can, with the knowledge of the Administration Manager, suspend an employee. This implies that the Functional Manager can only suspend an employee with the concurrence of the Administration Manager. However under the same clause 6.1, the Managing Director can terminate, with notice, the services of any employee. Similarly he can alone effect summary dismissal of any employee. Summary dismissal can be effected where a very serious breach of company regulations has occurred. Such serious breach include(cases of dishonesty, embezzlement or fraud.

No SSI which prohibits the Managing Director from giving the notice complained of by counsel for the cross-appellant was shown to court. Exhibit. P11 is the notice of suspension. It is short and reads this way:-

Mr. George Ndyabawq Shell Uganda Ltd., Kampala. ldh November, 2000. our nrr, HR/PF.

## Dear George,

## Notice of e

Please refer to the held in my As stated at the meeting we have received office on lfl November, 2000. information that you have been involved in acts of impropriety and dishonesty in execution of your duties.

Please give us a written explanation by 17 November, 2000 at 11.00 a.m.

In the meantime you are suspended from company seruice.

Yours faithfu//y,

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Ian G. Bromilow. Countty Chairman

In his lengthy written r(ply on the same day the cross-appellant referred to the discussion in the meeting bet'areen him and Mr. Bromilow where questions of impropriety on his part were raised. In that same letter the cross-appellant suggests reports or complaints against him by various individuals or the investigator or the Jinja Police station must be due to <sup>a</sup> variety of reasons which he mentioned in the letter. Apparenily he was implicated in improprietr).

On lTth,November, 20C1j, t4r. Bromilour wrote another brief letter to the I cross-appellant acknowl,edEinE receipt of the latter's letter and invited the cross-appellant to cor..rDany Headquarters ',for a brief fottow up discussion,- On 20th glovernber, 2000, he dicl attend the meeting ancl

printed memo in his response. He was apparently advised to resign with full benefits. He wanfed time to consider the matter. He attended another meeting on ZtrlttlZO00 when he opted not to resign. There and then the ManagiAg Director handed him a letter of summary dismissal. <sup>i</sup>

I refer to all these toi illustrate the fact that the Country Chairman/ Managing Director, ur ]tn\* overall administrator, appeared to be the person with powers to do what he did including suspension of the cross appellant. Mr. Muhwezi relied on the case of Peters (supra). As I understand that decision, it emphasised the well known view that whilst an appellate court has jurisdiction to review the evidence on record to determine whether the conclusions of the trial judge should stand, the jurisdiction is exercised lwith caution; if there is no evidence to support <sup>a</sup> particular conclusion, of if it is shown that the trial judge had failed to appreciate the weight or the bearing of circumstances admitted or proved, or has plainl hesitate to decide the y gone wrong, the appellate Court will not itself case.

In the Peters case/ thlere was documentary and other evidence rarhich either tended strongly to confirm the appellant's (Peter's) evidence, or alternatively to show that the respondent's principal witness was unworthy of credit, the full significance of which the trial judge had apparently not appreciafed. So the Court of Appeal for East Africa found Peter case to be a base where the court ought not to allow the conclusions reached bylthe trial judge to stand. Therefore the Court of Appeal allowed the app :al and in fact itself decided the issue in the case

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on the basis of the evidence adduced at the trial. That is a power which is appropriately norma ly exercised by a first appellate coutt.

Here we are dealing with a second appeal. The trial judge and the Court of Appeal have made concurrent findings to the effect that on the facts available the suspension of the cross-appellant was lawful.

I have not been persuaded that the concurrent conclusions of the Wvo courts are fundamentally wrong on the evidence available. It is trite that in ordgr for a second appellate court to intefere with conclusions of the I first appetlate court, lt must be satisfied that the first appellate court failed in its duty to properly re-evaluate evidence and reach lLs own inferences: See Bogere Moses & Kamba Robert Vs Uganda S.ct. CriminalAppeal No.l. of 1997 reported at page 185 of (1996/200C) S,Ct. certified judgments. I think that the Court of A.ppeal did properly reevaluate the evidence before it reversed part of the decision of the trial judge. Therefore ground one must fail.

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The complaint in the second ground is that the learned lustices of Appeal erred in law dnd in fact in holding that the respondent did not prove his claim for re{undancy package and or.early pension. 'I

Counsel's argunlents pn this complaint are, like on the first grodnd, not quite ciear. t-earnedicounsel seems to contend, however, that in the 'l light of the law gov{rnihg termination of employee's services coupled with the SSI and the evidence of the cross-appellant, the company should have terrninated the servlces of his client with nctice so as to enable his client to receive redundanry and early retirement benefits. He relied cn Peter's case (supra) and Barclays Bank (U) Vs Godfrey

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Mubirq, S. Ct Civil Apppal No.17 of 1998 especially page 16 of the lead i judgment of Kanyeihanlba, lSC.

Mr. Luswata for the cor,lnpany submitted that the cross-appellant did not prove by evidence that' he was entitled to redundancy under clause 6.0 of SSI. Further that there was no reduction of employees in this case causing him to lose his job so as to entitle him to redundanry benefits.

As regards early pension, Mr. Luswata submitted that an employee who is dismissed is not erltitled to anything beyond damages, if proved. According to counsel, in the Barclay's case (supra) both Kanyeihamba, JSC and I explained in our respective judgments, the nature of damages in{ tne case of wrongful termination of services. Counsel also distinguistfed Barclay's Bank case from the present case on the basis that \*nerfas in the former case pension was contributory, this was not so in the ldtter. Counsel relied on the judgment of Mulenga, ISC in the case of Gulaballi Ushilani Vs Kampala Pharmaceuticats Ltd. S.ct Civil Appeal 6 of 1998 (pages 16177) for the proposition that an employee cannot insist on being employed even if he is wrongfully dismissed. Learned counsel contended that in this case the crossappellant is indirectly qsking for specific performance of the contract of employment.

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As poirited out earlier appellant in that Court, the other two grounds this wayin the Court of Appeal the cross appellant as argued the first ground of appeal and abandoned Ground one which was argued was formulated

"The learned trial judge erred in law and in fact in making wrong conclusions that the appellant was

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suspended and dismissed in accordance with the defendant's staff standing instructions and the law in supp ort thereof whereas not,"

In her lead judgment w th which the other Justices of Appeal concurred, Kitumba, JA properly and the cross appe uated the evidence adduced by the company especially the evidence relating to cross appellant's job responsibility and the alleged impropriety. At page 17 of her typed judgment the learned lustice of Appeal held -

"f am of considered view that even if the appellantb job description stipulated that he was in charge of security and inllis evidence denied this responsibitity that was not iroof of commission of acts justifying sqmmary dismiqsal.'

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The learned Justice of1 Appeal quoted the relevant clause in the SSI setting out circumstanqes which justify summary dismissal before she concluded that the- <sup>I</sup>

\*appettant's conduct did not prove any of the actions specified in the standing instructions," She found that there was serious susprcron t t the appellant was involved in the theft of the respondent's had to prove the crimes alleged against the ssing him summarily as it was done. She the facts and the law governing relationship of fuel but the company appellant before dism therefore held that on master nd servant th I company should have terminated the services of the appellant with notlc

The learned Justice of Appeal held fufther, relying on our decision in the Barclays case (supra) and a clause in SSI relevant to termination with notice that-

"fn case the employer does not give the notice, the qmptoyee is ei1titled to be paid money in tieu of that period of noiice, The dismissed emptoyee is also entitled to tlecover from the employer other allowances whicn 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,"

In the result she foun following: that the cross-appellant was entitled to the

- 1. One 3,493, monfh's basic salary in 6351,=. lieu of notice, i.e. - 2. Transport ssistance shs.361,200/=. - 3. Mileage all wance shs 500,000/=

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- Provident 4. und balance 6,860,090/ - Leave for 5. 6 days t,068,2441

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i She awarded the cross-appellant costs of the appeal and the suit. With respect I think that Mr. Muhwezi misunderstood the following passage from the judgement of Kitumba, JA;

"The employer must (terminate seruice) in the manner warranted by the contract/ otherwise he will be liable for dfimages for unlawful dismissal."

This vyas a general statement of the law and cannot be construed as a i finding in favour of ttl of the Court of Appeal e cross-appellant. I find nothing in the judgment indicating that the company could not dismiss the cross-appellant, as learned counsel appears to suggest. In her judgment, Kitumba, JA first discussed generally the law governing the relationship between master and employee before she considered the question of the right of the company to terminate the services of the cross-appellant. That is why she first referred to the case of **Ridge Vs Balwin** (1965) AC 40 and then quoted clause 6 of SSI under the Heading: **Leaving Company Service:** No. L/6 of the SSI. That clause reads as follows -

SS Instruction No. $L/6$ is its heading.

## SUBJECT: LEAVING COMPANY SERVICE.

The instruction opens with these general statements: -

"A confirmed employee holds an evergreen 30days contract of service with the company which can be terminated by either party by giving the other party 30 days notice or payment in lieu of notice with no obligation to give a reason. Thus an employee is free to resign from the company service any time, and the company is equally free to terminate an employee's service at any time."

The SSI then sets out four other circumstances in which an employee can leave company service. The SSI set out in para 2.0, circumstances of Termination with Notice. It states: -

"2.1. The company can at any time exercise its right to terminate an employee by giving one months notice in writing, or by paying one month's basic salary in lieu of notice.

2.2. Employees whose seruices are terminated with notice will be paid up to the last day of the notice and will receive all their entit/ements in accordance with the regulations of pension fund, and will be entitled to be transported back to the point of en t as per clause 4.3 be/ow."

The learned lustice of Appeal found that on the evidence available, the company should hav given the cross-appellant one month's notice under these provisions nstead of summary dismissal.

She accordingly ordergd the company to pay the cross-appellant one i month's salary in lieu lof notice and made other consequential orders 'which I quoted earlier. The other members of the court agreed with her. I concur with these conclusions.

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The learned Justice of Appeal similarly considered the questions of redundanry and pensiqn and held that the cross-appellant did not adduce evidence proving that l'fe was entitled to any of these benefits. She held .'tnat he was entitled to]what he alleged in his pleadings which he proved by evidlnce namely "pfovident fund contribution batance" and leave pay which I have set oilt above.

.. Barclay's Bank case is not helpful in that regard. Therefore ground <sup>2</sup> of the Notice must fail. -.- I agree with Mr. Luswfta that there was no evidence to prove that the cross-appellant was entitled to redundancy pay or to early pension.

The complaint in the last ground in the Notice of Cross- Appeal is that the Justices of Appeal urrta in law and fact when they omitted to consider and grant general dampges to the cross-appellant after they held that his ;rrrrln dismissal wa unlawful. Mr. Muhwezi contended that Kitumba, JA., may have omitted to consider and award general damages through oversight. He based this contention on the passage from the judgment of the learned Justice of Appeal, at page 18 of her judgment, where she said:

"An employer has a right to terminate the employment of his employee at anytime for any reason or for no reason at all. See Ridge Vs Balwin [1965] AC 40. The employer must do so in the manner warranted by the contract, otherwise he will be liable for damages for unlawful dismissal."

Mr. Muhwezi relied on the **Barclays Bank** (supra) case and that of **Gulaballi Ushullani** (supra) for his contention that his client was entitled to general damages.

Mr. Luswata submitted that the cross-appellant did not prove any damages he suffered. He only referred to loss of reputation. He relied on Waibi Vs Railways & Harbours [1971] EA 235 at 297 as to termination with notice. He contended that awarding general damages would amount to grant of specific performance to the cross-appellant.

He argued that **Gulaballi Ushillani** case was distinguishable and further that there were suspicions about the cross-appellant's conduct which lead to his dismissal.

. With due respect to Mr. Muhwezi, I can not accept that Kitumba, JA, inadvertently omitted to award general damages. Neither the **Barclays Bank case** nor that of **Ushillani** help the cross-appellant The learned Justice of Appeal reviewed the evidence in the case and related that evidence to the relevant law on master/employee relationship. Although she held that the company should not have dismissed the cross-

appellant summarily, she was of the view that the company had a right to dismiss him with notice which view Waibi case supports. The question of award of general damages did not, therefore, arise. In the meetings and correspondence that I referred to earlier, the company gave the cross-appellant opportunities to defend himself. He did not satisfy the company in his various explanations both oral and written. He was given the option to resign with full consequential benefits. He declined. In the circumstances the company took the course open to it. In my view I find no merit in this ground which ought to fail.

In conclusion the cross-appeal fails and it is dismissed with costs. I would uphold the decision of the Court of Appeal. I would award the cross-respondents only costs of this notice of cross-appeal. As other members of the court agree, it is ordered accordingly.

Delivered at Mengo this....................................

J. W. N. Tsekooko JUSTICE OF THE SUPREME COURT in have is to cross richard

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it delivere


## THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT MENGO

# (CORAM: ODER, RIP, TSEKOOKO, KAROKORA, KANYEIHAMBA, AND KATUREEBE, JJ. S. C).

# CIVIL APPEAL NO.6 OF 2005

#### **BETWEEN**

SHELL (UGANDA) LTD. ..................................

#### AND

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

(Appeal from the decision of the Court of Appeal Kampala (Okello, Twinomujuni and Kitumba, JJ. A.) dated 20<sup>th</sup> December 2004 in Civil Appeal No. 97 of 2003)

## JUDGMENT OF KAROKORA, JSC.

I have had the advantage of reading in draft the Judgment of my learned brother, Hon. Justice Tsekooko, JSC. I entirely agree with him that the cross-appeal should be dismissed with costs. For the reasons he has given, I further agree with him that crossrespondent should be awarded the costs of the Notice of cross-appeal

Delivered at Mengo this $23$ day of $100$ 2006

Turkon

A. N. KAROKORA JUSTICE OF SUPREME COURT

#### THE REPUBLIC OF UGANDA

#### IN THE SUPREME COURT OF UGANDA AT MENGO

# (CORAM: ;ODER (RlP), TSEKOOKO, KAROKORA' ' KANYEIHAMBA, AND KATTJREEBE, JJ. S. C')

#### CIVIL APPEAL NO.6 OF 2OO5

#### BETWEEN

#### SHELL (UGANDA) LTD : : : :: : : : : : :: : :: : ::: :: : ::: : : : : ::: : : : : APPELLANT

#### AND

#### WE ::: : : : : : : : : ::: : : : : : : : : : : : : : : : : : : :: : : : : RESPONDENT A GEORGE NDYAB

[Appeal from a decision of the Court of Appeal at Kampala 'neiore (Oketlo, Twinomuiuni & Kitumba, JJ. A) in Civil Appeal No.97 of 20031.

### JUDGMENT OF NYEIHAMBA, JSC.

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draft, and I agree with him for the reasons he has at this cross-appeal should fail and be dismissed' Tsfkooko, J. S. C, <sup>i</sup> so ably advanced I have had the ben fit of reading the judgment of my learned brother, t <sup>I</sup>would also award he costs ofthis notice to the cross-respondent

Dated at tVlengo, th 73rd aay or -N-D!&-:-^-- 2006.

. W. Kan eihamba JUSTICE OF SUPREME COURT

### THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA AT MENGO

(CORAM: ODER (RIP), TSEKOOKO, KAROKORA, KANYEIHAMB, AND KATUREEBE, JJ. S. C).

# **CIVIL APPEAL NO. 6 OF 2005**

#### **BETWEEN**

SHELL (UGANDA) LTD::::::::::::::::::::::::::::::::::::

#### AND

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

[Appeal from a decision of the Court of Appeal at Kampala (Okello, Twinomujuni and Kitumba, JJ. A) dated 20<sup>th</sup> December, 2004, in Civil Appeal No. 97 of 2003]

# **JUDGMENT OF BART M. KATUREEBE, JSC.**

I have had the behefit of reading in draft the Judgment of my learned brothers, Tsekooko, JSC. I agree with him that this appeal be dismissed with costs for the reasons he has so comprehensively discussed in his judgment.

Delivered at Mengo this $23$ day of Nov 1 2006.

penkal be

Bart M. Katureebe **Justice of The Supreme Court**