The Public Procurement and Disposal of Public Assets Authority v Pamela Sozi (Civil Appeal No. 14 of 2016) [2022] UGCA 191 (18 July 2022)

Full Case Text

# THE REPUBLIC OF UGANDA,

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

# CIVIL APPEAL NO. 14 OF 2016 (ARTSTNG FRoM HCCS N0. 063 OF 20121 (CORAM: MADRAMA, MULYAGONJA, MUGENYI, JJA)

#### 10 THE PUBLIC PROCUREMENT AND DtsPosAL 0F PUBLIC ASSETS AUTHoRITY) VERSUS APPELLANT

MRS. MARY PAMELA S0Zr) RESPONDENT lAppeal against the of Judgment of Hon. Lady Justice Elizabeth Musoke, Judge of the High Court of Uganda sitting at Kampala in HCCS No 63 of 2012 dated 2Vh August 2015)

### JUDGMENT OF CHRISTOPHER MADRAMA, JA

The appetlant todged this appeat against the Judgment and orders of Hon Justice Etizabeth Musoke, in HCCS No. 063 of 2012 delivered on 2TthAugust 2015.

The brief background is that the Respondent sued the Appettant, her former employer, in HCCS No. 063 ol 2012 for unfair dismissal and prayed for compensation in lieu of notice, gratuity, unpaid leave, a certificate of service, four weeks' net pay, repatriation, generaI and aggravated damages for 2s unfair termination, and costs of the suit.

The tearned triat Judge found for the Respondent and hetd that her dismissat by the Appetlant was unlawful since she was not accorded a fair hearing in terms of Article 42 & 44of the Constitution and section 65 of the Emptoyment Act, 2006. Secondty, the Respondent was not given sufficient 30 notice according to the terms of her employment. Further, the Respondent was entitled payment for three months' notice in lieu and not the two months she was given. The learned tria[ Judge awarded the Respondent one month's payment in lieu of notice amounting to UGX 7,800,000/= which was not paid to her, UGX 5,850,000/= as gratuity, UGX 6,578,313/= as

5 payment for unpaid leave, four weeks' net pay amounting to UGX 7,800,000/=, UGX 60,000,000/= as generat damages, a refund of UGX 1,156,37 4/= deducted f rom the Respondent's terminaI benef its. The Appeltant was further ordered to avaiI the Respondent a certificate of service. lnterest was awarded at 15% per annum on the stated sums with costs of the suit. The learned triat Judge dectined to award aggravated damages and repatriation payment to the Respondent.

The Appettant was dissatisfied with the Judgment and orders of the learned trial Judge and appeated to this court on eight grounds of appeaI that:

l. The learned Hon Justice of the High Court erred in law and in fact when she hetd that the Appettant's termination of the Respondent's employment was unlawfut/ unjustified without sufficient notice to the Respondent. 15

2. The learned Hon Justice of the High Court erred in law and in fact when she hetd that the Respondent is entitled to one month's payment in [ieu of notice amounting to Ug. Shs. 7,800,000/=

3. The learned Hon Justice of the High Court erred in [aw and in fact when she hetd that the claims made by the Respondent for gratuity and unpaid leave were not speculative and awarded her the sum of Ug. Shs. 6,578,313/= as payment for the untaken paid teave and Ug. Shs. 5,850,000/= as gratuity.

4. The learned Hon Justice of the High Court erred in law and in fact when she hetd that the Respondent is entitted to an award of general damages amounting to Ug. Shs. 60,000,000/=

5. The [earned Hon Justice of the High Court erred in when she hetd that the Respondent is entitled Certificate of Service by the Appettant. law and in f act to be issued a

- 5 6. The learned Hon Justice of the High Court erred in law and in fact when she hetd that the Respondent is entitled to a further four weeks' net pay from the Appettant in accordance with Section 65(4) of the Employment Act, 2006. - 7. The learned Hon Justice of the High Court erred in law and in fact when she hetd that the Respondent is entitled to interest on items (a)(b)(c)(d)(f) at l5% per annum from the date of fiting titt payment in futt and interest of 6% per annum at court rate from the date of judgment titl payment in futt. - 8. The learned Hon Justice of the High Court erred in law and in fact when she hetd that the Respondent is entitled to costs of the suit.

The Appettant prayed that the appeal be allowed with costs of the appeal and the declarations and orders of the High Court be set aside.

- At the hearing of the appea[, the Appettant was represented by [earned counsel Mr. George Kalemera, a Commissioner in the Attorney General's Chambers, and learned counseI Mr. Brian Musota, State Attorney, white the Respondent was represented by learned counsel Mr. Simon Kiiza. 20 - ln attendance was also Mr. Ben Turamye, the Executive Director of the Public Procurement and Disposat of Pubtic Assets Authority together with Mr. Uthuman Ssegawa, the Director of tegat and investigations of the Pubtic Procurement and DisposaI of Pubtic Assets Authority. The Respondent also attended Court. 25

Both counset of the parties adopted their written submissions as their address to this court for and against the appeat. 30

### Submissions of the Appettant's counset

0n ground one, the Appeltant's counsel submitted that the learned trial Judge erred in law and fact when she failed to take into account the terms and conditions of the emptoyment contract thereby drawing a wrong

5 conclusion that the Respondent was unlawf u[[y dismissed. Counsel submitted that the tearned triat Judge relied on oraI evidence to the exclusion of documentary evidence contrary to section 9l and 92 of the Evidence Act. He submitted that if the trial Judge had considered the emptoyment contract instead of oral evidence, she would have come to the correct conclusion that the Respondent was terminated and not dismissed. 10

Secondly, the Appeltants counsel submitted that the termination of the Respondent was a summary terminalion under section 59 of the Employment Act. He referred to section 65 and 690) & (2) of the Employment Act for the submission that the Appetlant was entitled to terminate the Respondent's employment summarily, without notice, for a reason or no reason at a[[. Counse[ relied on Stanbic Bank Ltd v Kiyemba Mutate, SCCA No. 2 of 2010, Stanbic Bank Uganda Limited v Deogratius Asiimwe SCCA No. l8 of 2018, and Bank of Uganda v Kibuuka & 4 others, CACA No.28l of 2016 where it was hetd that section 65 of the Employment Act does not impose a duty on the employer to give reasons for termination. 15 20

Thirdty, counsel submitted that the triat Judge did not evaluate the evidence on record showing the Respondent's gross incompetence as an employee of the Appetlant. He referred to the testimonies of DWl, DW2 and audit reports tendered in at the trial.

- Lastty, the Appetlant's counsel submitted that in summary termination, there is no requirement to be heard as provided for under section 69 of the Emptoyment Act, as long as the emptoyer complies with the terms of the contract. Counsel submitted that where the employee is dissatisfied with the termination, he or she may pursue the remedy undersection 7l(l) of the 25 - Employment Act. 30

The Appetlant's counsel abandoned ground two of the appeat.

With regard to ground three of the appeat, the Appellant's counseI submitted that the triat Judge erred in law and in fact when she awarded the Respondent UGX. 6,578,313/= as payment for untaken paid leave and UGX

5,850,000/= as gratuity. He submitted that payments for untaken paid leave 35

5 and gratuity are speculative. Counsel retied on Bank of Uganda v Betty Tinkamanyire, SCCA No. 12 ot 2007, and Atuzarirwe v The Registration Services Bureau & 3 others, Miscellaneous Cause No. 249 of 2013 for his submission.

0n ground four, the Appettant's counsel faulted the triaI Judge for awarding the Respondent UGX 60,000,000/= as generaI damages for unlawful termination. He submitted that the award was erroneous and manifestly excessive. Counsel retied on Crown Beverages Ltd v Sendu Edward, SCCA No. I of 2005 where it was held that an appettate court wi[[ not interfere with the award of damages by a triat court unless the triaI court acted upon 10

- a wrong principte of [aw or the amount is so high or so low as to make it an entirely erroneous estimate of the damages to which the ptaintiff is entitled. Counsel submitted that the triat Judge erred in taw by hotding that the respondent was not accorded an opportunity to be heard yet she was on several occasions heard by the Board. He further submitted that the trial 15 - Judge erred in finding that the Respondent had worked for the Appellant for a long time, and that the Respondent's termination caused embarrassment to her. Counsel contended that there was no evidence of embarrassment arising from the termination. ln the premises, counseI submitted that the award of UGX 60,000,000/= as generaI damages was speculative. He invited this court to intervene and set aside the award. 20 25

0n ground five, the Appettant's counsel submitted that the trial Judged erred in law and fact when she held that the Respondent was entitled to be issued a Certificate of Service by the Appetlant. CounseI contended that there was no evidence that the respondent had asked for a Certificate of Service. ln the premises, counsel submitted that the order was issued prematurely and upon a speculative assumption that the Appetlant would not give the Respondent a Certificate of Service.

0n ground six, the Appellant's counsel submitted that the Respondent was not entitted to four weeks' net pay provided under section 66(4) of the Employment Act, 2006. Counsel submitted that the Appettant did not fait to compty with the provisions under Part Vll of the Emptoyment Act as to

- 5 warrant payment of four weeks' net pay. He contended that the Appettant's Board had on several occasions given the respondent opportunities to be heard as evident in the evidence tendered before the triat court. ln the premises, counsel submitted that the Respondent's summary dismissat was justified and she was not entitled to four weeks' net pay. - With regard to ground seven, the Appetlant's counse[ submitted that the triat Judge erred when she awarded the Respondent interest at l5% per annum on the compensatory orders. Counsel submitted that the triat Judge did not give any explanation to justify the interest awarded contrary to Order 2l rule 4 & 5 of the Civil Procedure Rules. Secondly, counsel contended that 10 - interest cannot be issued on an expired or terminated contract. He relied on Roko Construction Limited v Attorney General HCCS No. 517 of 2005 for his submission. Thirdty, counse[ contended that the Respondent did not submit on the prayer for interest and did not furnish any authorities to support it. Counsel fautted the trial Judge for awarding the Respondent 15 - interest at l5% per annum and yet the Respondent had prayed for interest at court rate in her ptaint. He submitted that it is trite law that parties are onty entitted to orders prayed for. For this submission, counsel relied on Ms Fang Min v Betex Tours & Travel Ltd, Civit Appeat No. 5 of 2013 and Civit Appeat No. I of 2014, where it was hetd that a party cannot be granted relief which he or she has not claimed in their pleadings. ln the premises, he invited this court to set aside the award of l5% interest per annum. 20 25

ln the alternative, counseI submitted that if this court is inctined to award any interest, it shoutd be at court rate for a[[ compensatory orders as this is justifiabte under section 26(3) of the Civit Procedure Act which provides

for court rate of 6% per annum. 30

> 0n ground 8, the Appeltant's counset fautted the triat Judge for awarding costs to the Respondent. He submitted that the Respondent was not entitted to any costs having faited to prove the case pleaded against the Appeltant. He retied on Section 27 of the CiviI Procedure Act which provides that costs

fotlow the event. 35

5 ln conclusion, counseI prayed that the appeal be allowed with costs.

## Submissions of the Respondent's counsel in reply

ln repty to ground one, the Respondent's counsel submitted that ground one and two are interrelated and the abandonment of ground two by the Appettant is an admission of ground one.

Secondty, counsel reiterated the trial Judge's finding that the Respondent should have been accorded a fair hearing on the allegations of incompetence made against her by the Appettant. He submitted that the Appellant shoutd have produced evidence of any hearing given to the Respondent in compliance with section 66 of the Emptoyment Act, but it did not. 10 15

Further, in the Respondent's supplementary written submissions, the Respondent's counsel contended that the precedent of Stanbic Bank Uganda Limited v Deogratius Asiimwe, SCCA No. l8 of 2018, cited by the Appettant is on a[[ fours with the instant appeaI and supports the Respondent's case. Counset submitted that in that case, it was hetd that if the emptoyer goes on to state reasons for termination of an emptoyee's contract of service, he or she is required, in [ine with the principles of naturaI justice, to avai[ the employee a hearing to allow him or her to defend himsetf or herself prior to his or her dismissa[. He further relied on Ridge v

- Batdwin (1964) AC 40 where it was held that a decision reached in violation of the principtes of naturaI justice is void. Counsel submitted that the principtes in the mentioned cases appty to the facts of the instant case where the Appeltant cited incompetence as the reason for termination of the Appettant's contract of service. ln the premises, counseI submitted that 25 - 30

the Appettant was required to accord the Respondent a fair hearing, having cited incompetence as the reason for her dismissal.

Thirdly, the Respondent's counset submitted that it was doubte standards on the part of the Appettant to claim that the Respondent was given an opportunity to be heard but further claim that under the employment 5 contract, a hearing was not necessary as the Appetlant was exercising its contractual right to terminate a contract of service.

ln repty to the Appetlant's submission that the triat Judge retied on oral evidence to the exclusion of documentary evidence, the Respondent's counsel submitted that the Appettant did not single out the terms of the document which were excluded in preference for oral evidence. Secondly, counseI submitted that white the Appettant fautted the trial Judge for not apptying any principte for interpretation of contracts, it did not mention any principle for interpretation of contracts which should have been apptied in the circumstances. Thirdty, counset contends that white the Appettant submitted that the termination of the Respondent was a summary termination under section 69 of the Employment Act, the Appettant did not specify which particular subsection of section 59, since the section provides for three scenarios of summary termination. Further, counsel submitted that the Appettant, who claims to have given sufficient notice or payment in lieu of notice, cited the provisions of section 69 of the Emptoyment Act out 10 15 20

- of context since the section onty applies where an employer terminates a contract of service without giving notice orwith less notice than is required. ln the premises, counset submitted that the triat Judge was justified in coming to the conclusion that the Respondent was unlawfully terminated. - With regard to ground two, the Respondent's counseI submitted that even if the Appettant abandoned ground two, it had a serious bearing on other grounds in so far as it confirmed the triat Judge's findings that the Respondent's contract was unlawfully terminated. Counsel invited this Court to take into account the Appettant's admission that the Respondent was given [ess notice than she was entitled to under the Emptoyment Act and the employment contract. 25 30

ln reply to ground three, learned counsel for the Respondent submitted that the contract of service concluded by the parties provided for gratuity and paid teave. He referred to the Respondent's appointment letter at page 17 of

the Record of Appeat. Counsel submitted that the precedent of Bank of Uganda v Betty Tinkamanyire SCCA No. 12 of 2007 was cited out of context 35

as it relates to future leave, lunch and allowances, while the award in the $\mathsf{S}$ instant case was in respect of paid leave which the Respondent was entitled to at the time of termination of her contract but which had not been taken. Further, counsel submitted that the awards were not speculative since the parties expressly agreed to them in the contract for service.

$\mathbf{E}^{\mathrm{c}}$

- In reply to the Appellant's submission on ground four that the trial Judge $10$ awarded excessive general damages, the Respondent's counsel submitted that the trial Judge was right to award damages for inhuman and degrading treatment since the Respondent had diligently served the Appellant for 11 years at a senior management position. Counsel contended that as a senior - member of staff, the respondent ought to have been treated fairly by 15 according her an opportunity to be heard on the allegations of incompetence. Further, in the Respondent's Supplementary submissions, the Respondent's counsel sought to distinguish the case of Crown Beverages Ltd v Sendu Edward SCCA No. 1 of 2005, relied on by the - Appellant's counsel for the submission that the award of damages was $20$ excessive. He argued that while that case dealt with damages for a defective beverage, the instant case presented dire circumstances in so far as it dealt with the unlawful termination of a civil servant who had served Government for 28 years in several capacities. According to counsel, these dire - circumstances justified the quantum of award of general damages. Further, 25 counsel contended that the Appellant should have waited for the Respondent to return to office from her leave. He dismissed the Appellant's allegations of incompetence on the ground that the Appellant could not have retained the Respondent in office for 11 years if she was incompetent. Counsel submitted that the award of general damages would help the 30 Respondent who is of advanced age to plan for her retirement and settle as a long serving Public Servant. In the premises, counsel invited this court to

uphold the award of UGX $60,000,000/$ = as general damages.

In reply to the Appellant's contention that the order for issuance of a Certificate of Service was given prematurely without proof that the 35 Respondent requested for it, the Respondent's counsel submitted that

5 according to section 6l of the Employment Act, an employer is supposed to issue a Certificate of Service to the employee upon termination of his or her contract of service. CounseI submitted that it was not in dispute that the Appettant had terminated the Respondent's contract of service, therefore, it was obliged to issue a Certificate of Service to the Respondent. Further, counsel submitted that if the Appettant was wilting to issue a Certificate of Service to the Respondent, it shoutd have conceded to the claim during trial and not waited for court to make a pronouncement. 10

ln repty to ground six, the Respondent's counsel submitted that the award of four weeks' net pay was based on the Appettant's faiture to accord the Respondent a fair hearing. Counsel submitted that in the absence of proof of a fair hearing, the Respondent was entitled to four weeks' net pay provided for under section 66(ti ot the Employment Act. 15

ln repty to the Appettant's contention that the award of interest at l5% per annum was excessive and unexplained, counsel submitted that the award of interest is discretionat as provided under section 25(2) of the Civit Procedure Act. He submitted that the learned triat Judge upon finding that the Respondent was untawfully terminated reserved the discretion to award interest as he did. To support his submission, counseI f iled supplementary submissions where he retied on National Enterprises 20

- Corporation v Mukisa Foods Ltd, Civit Appeat No. 42 of 1997, which cited with approvaI the dictum of Kay L. J in Jenkins v Bushby (1189) I Ch. 484, where the learned Lord Justice remarked that the court clearly has discretion whether to grant the prayer or not as the court cannot be bound by a previous decision to exercise its discretion in a particular way because that would be in effect putting an end to the discretion. Further, counsel submitted that the precedent of Ms. Fang Min v Belex Tours and Travel Limited Civit Appeat No. 06 of 2013, which the Appettant sought to rely on, did not appty to the exercise of discretion. He reiterated the principles in 25 30 - National Enterprises Corporation v Mukisa Foods Ltd, Civit Appeat No. 42 of - 1997 as the right position of the taw on exercise of discretion. 35 5 Lastly on ground eight of the appeal, the Respondent's counsel submitted that costs fottow the event as provided under section 27 of the Civil Procedure Act. He submitted that the learned triat Judge had discretion to award costs as he did judiciousty.

The Respondent's counsel prayed that the appeaI be dismissed with costs to the Respondent. 10

## Appellant's submissions in rejoinder

ln rejoinder to the Respondent's submissions on ground one, the Appettant's counseI ctarif ied that the Appeltant's argument is not conf using or contradictory as the Respondent's counsel avers. He reiterated that the Appettant's case is that it terminated the Respondent's contract of service because the contract allowed termination with payment in tieu of notice.

Secondty, the Appetlant's counseI submitted that the authority of Stanbic Bank Uganda Limited v Deogratius Asiimwe SCCA No. 18 of 2018 is distinguishable from this appeal as the [aw applicabte to that case was the

- repealed Employment Act, Cap. 219 white the law appticabte to the instant appeal is the Employment Act, No. 6 of 2005. Further, counsel pointed out that in Stanbic Bank v Deogratius Asiimwe (supra), the termination notice stated a reason for termination which is not the case in the facts of the instant appeat. 20 - ln rejoinder to the Respondent's submission that abandonment of ground two by the Appettant amounted to an admission that the termination was unlawful, counse[ refuted the averment but conceded to the award of the additionat one-month payment in [ieu of notice amounting to UGX 7,800,000/=. 25 - Thirdty, the Appettant submitted that section 66(a) of the Emptoyment Act, which provides for four weeks' net pay, did not appty to the instant case, since the Appetlant terminated the Respondent's emptoyment in exercise of its rights under the contract of service. 30

5 Lastty, the Appettant's counseI reiterated the Appettant's main submissions on grounds 3, 4, 5, 7 & 8 and the Appettant's prayer that the appeal is allowed with costs.

## Resolution of the Appeat

I have carefully considered the written submissions of counseI for the Appettants and Respondents respectivety, the record of appeat and the law and precedents cited by counseI of both parties. 10

The duty of this court as a first appeltate court is to reappraise the evidence on record and draw its own inferences of fact. This duty is set out in Rule 30 (l) (a) of the Judicature (Court of Appeal Rutes) Directions, S.l No.l3-10 where it is provided that on any appeal from a decision of the High Court in the exercise of its original jurisdiction, the court may reappraise the evidence and draw inferences of fact.

ln Peters v Sunday Post Limited [19581 1 EA 424 the East African Court of Appeat hetd that the duty of a first appetlate court is to review the evidence in order to determine whether the conclusions drawn by the trial court should stand. ln reappraisaI of evidence, the first appeltate court should caution itsetf regarding the shortcoming of not having had the advantage of seeing and hearing the witnesses testify. The court extensively quoted from Watt vs Thomas [1947] AC 484 and I reproduce the relevant excerpts. Viscount Simon LC said at page 485 that: 20 25

> ... an appetlate court has, of course, jurisdiction to review the record of the evidence in order to determine whether the conctusion originatty reached upon the evidence shoutd stand, but this jurisdiction has to be exercised with caution. lf there is no evidence to support a particutar conctusion (and this is reatty a question of taw) the appellate court witt not hesitate so to decide. if the evidence as a whote can reasonabty be regarded as lustifying lhe conclusion arrived at the trial and especialty if that conc[usion has been arrived at on confticting testimony by a tribunat which saw and heard the witnesses, the appettate court wit[ bear in mind that it has not enjoyed this opporlunity and that the view of the triat judge as to where credibitity lies is enlitled to great weight. This is not to say that the judge of first instance can be treated as infattibte determining which side is

5 tetting the truth or is refraining from exaggeration. Like other tribunats, he may go wrong on questions of fact, but it is a cogent circumstance that a judge of first instance when estimating the vatue off verbaI testimony, has the advantage (which is denied to courts of Appeat) of having the witnesses before him and observing the manner in which their evid ence is given.

Further Lord Thankerton summarized the principtes a should appty at page 487 and they are that: first appellate court 10

l. Where a question of fact has been tried by a judge without the jury, and there is no question of misdirection of himself by the judge, an appe[[ate court which is disposed to come to a different conctusion on the printed evidence, should not do so untess it is satisfied that any advantage enioyed by the trial judge by reason ot having seen and heard the witnesses, cou[d not be sufficient to explain or justify the judge's conclusion. ll. The appettate court may take the view that, without having seen or heard the witnesses it is not in a position to come to any satisfactory conctusion on the printed evidence; lll. The appettate court, either because the reasons given by the triat judge are not satisfactory, or because it unmistakab[y so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter wi[[ then become at [arge from the appeltate court. lt is obvious that the value and importance of having seen and heard the witnesses wi[[ vary according to the class of case, and, it may be, the individuat case in question.

For his part, Lord MacMittan said at page 491 that:

The judgment of the trial court on the facts may be demonstrated on the printed evidence to be affected by a materiaI inconsistencies and inaccuracies, or he made be shown to have failed to appreciate the weight or bearing of circumstances admitted or proved or otherwise to have gone plainly wrong.

ln Fr. Narsensio Begumisa & 3 others v Eric Tibebaga SCCA No. l7 of 2002, Mulenga JSC, hetd that on a first appeat, the parties are entitled to obtain from the appetlate court its own decision on issues of fact as we[[ as of [aw. The facts of this appeal are not in controversy and what is in issue is

whether the interpretation of the law in view of the facts was erroneous. 35

To get to the actual matters in controversy, I have carefutly considered the written submissions of the Appettant and Respondent which I have set out

5 above, the record of appeat, the law and judiciat precedents relied upon by counsels. I have further considered the grounds of appeat.

Ground one of the memoranda of appeat forms the crux of the appetlant's appeat in that it is the foundation of a[[ the other grounds of appea[. ln it the appeltant contends that the learned triat judge erred in law and in fact when

she hetd that the appe[[ant's termination of the respondent's employment was untawfut, unjustified, and without sufficient notice. The appettant abandoned ground 2 of the appeat. The rest of the grounds are to be considered in the atternative because if the [earned triat judge was justified to find as she did, then grounds 3, 4, 5, 5, 7 and 8 of the appeal are on the question of the appropriate remedies in that the appettant chal[enges the remedies awarded by the triat court in the said grounds. 10 15

Ground I

The learned Hon Justice of the High Court erred in law and in fact when she held that the Appetlant's termination of the Respondent's emptoyment was unlawfu/ unjustified without sufficient notice to the Respondent.

Ground one of the appeat was considered when the learned triat judge deatt with the issue one which was agreed in the trial court. lssue one was whether the dismissat of the ptaintiff from employment was tawful.

The facts set out by the learned triat judge which were agreed in the joint scheduting conference of the parties were that the ptaintiff was employed by the CentraI Tender Board on l't September 2001 as Head of Finance' secondty in 2003, the ptaintiff was appointed by the defendant as Director of Finance and Administration, and she served in the same position until her services were terminated on 28rh February,2012. Thirdty upon her termination, the defendant paid the ptaintiff two months'satary in tieu of notice and gratuity catculated from 2003 lo 2012. 25 30

I have careful,ty considered the pteadings of the parties and the facts materiat to ground one of the appeal. ln paragraph 3 (c) - (j), the ptaintiff

5 averred that she had been emptoyed for l0 years when around December 20ll she got permission to go for her annual leave and was granted permission according to a [etter which was later admitted in evidence dated 7 December 2011. This annexure "C" reads as fo[[ows:

Reference is made to your memo dated 6rh December 20ll on the above subject.

- The Board Chairman has informed me thal you approached him on the issue of your leave and he advised you to submit to me a formal request for reconsideration of approvaI of your leave apptication. 10 - As you are aware, under the Human Resource Manua[, approvaI of an apptication for annual leave by the competent authority is not automatic and depends on the exigencies of the business of the Authority. At the time of submission of your request for annuaI leave two months ago, you had not met your performance benchmarks on a number of agreed targets under the key resu[t areas of your department some of which are sti[[ outstanding to date. - Further, the RoyaI Netherlands Government, in a [etter to the Authority dated 25rh November 2011, formerty raised concerns on the quality and accuracy of the financiat report for the period April to June 20'l'1. This matter is still unresolved and the authority was given a deadline of 28tn December 20'11 to respond to the queries raised by the Royat Netherlands Government. 20 - In tight of the above performance concerns and your appeaI for leave to fo[[ow up on your private medicaI issues, lhave discussed your request with the Board Chairman and the fo[[owing position was agreed upon t5 - 1. That instead of the 30 working days of [eave you had apptied for; you are required to take a[[ your outstanding annua[ leave days to date (58 working days) with effect from 7'h of December 201'l expiring on 28 February 2012. - 30

2. That you forma[[y hand over your office to the Manager Finance and Adminislration.

This is to bring to your attention the decision of the Authority with regard to your request for reconsideration of annual leave for your action.

The letter was directed to the Director Finance and Administration (the Respondent) from the Executive Director and copied to the Board Chairman. 35

Subsequently the plaintiff proceeded for leave and returned on 28th $\overline{5}$ February 2012. Upon her return, she found a letter of dismissal had been served on her house help at home and the letter was also admitted in evidence and is dated 22nd February 2012. It reads in part as follows:

RE: TERMINATION OF CONTRACT OF EMPLOYMENT.

Reference is made to the above subject. 10

I have been directed by the PPDA Board of Directors to inform you that your contract of employment with PPDA as Director Finance and Administration is terminated with effect from 28th February 2012.

You will be paid your salary for two months in lieu of notice in accordance with the Human Resource Manual and Employment Act. You will receive your accrued 15 gratuity on confirmation of handover of any PPDA property in your possession/custody.

> Only half of the PPDA Board and Management, I thank you for the services that you have rendered to the Authority and wish you well in your future endeavours.

The letter was addressed to the respondent/plaintiff by the Executive 20 Director and copied to the Chairman PPDA Board of Directors.

As claimed in the plaint, the plaintiff averred that there was no board meeting to discuss the summary dismissal. Secondly, it was averred that the defendant's executive director had known that the plaintiff was on annual leave and had accompanied her husband to the United States for medical treatment and was set to return on 28th February 2012. The plaintiff averred that the employment was governed by the contract of employment, the Human Resource Manual and the Employment Act 2006. Particularly she relied on section 66 of the Employment Act and alleged that it had been

breached by the defendant/appellant. In that she contended that principles 30 of justice and equity were breached by the Employer. Further she contended that the termination was in bad faith.

On the other hand, the defendant's defence was that the contract was terminated by the board of the defendant in the exercise of the defendant's

contractual right to terminate the contract and according to clause 10.4 (c) 35

- 5 of the Human Resource Manual and that the ptaintiff was fully paid in tieu of notice. They atteged that there was no breach of the Employment Act 2006 or the contract. ln the atternative, the defendants defence was that the termination of employment was neither unfair, nor was it in bad faith. The defendant further cited acts of the ptaintiff which were alleged to be acts of - incompetence. This inctuded failure to submit a financiaI report by 3l't of March 20ll to facilitate handover report of the former Executive Director for the meeting of the board by 26rh of May 20'll. Because there was no financial report, the matter was postponed and the report was sti[[ not ready by 7th June 20ll of 2l't of Juty 2011. The respondent was summoned by the board 10 - and granted three weeks to complete the report by l2th August 2011. 0n 8 September 2011 the ptaintiff had not compteted her assignment. Further the ptaintiff was issued a warning letter on llrh September 2011 and she wrote back with some explanations. By l2'h November, the board found that there was gross poor management and decided to terminate the ptaintiff's services upon paying her two months'salary in Iieu of notice and gratuity in 15 20 - accordance with the contract.

lssues arise from pleadings under 0rder 15 for I of the Civit Procedure Rules. Clearly the issue that arises from the p[eadings was whether the ptaintiff was summarity dismissed or terminated with notice. This woutd determine the consequences of the termination in terms of entitlement of the plaintiff/respondent in this appeal and thereby give direction as to whether the learned triat judge erred to award what she did and that is being chatlenged in the other grounds of appeat.

As far as the first ground of appeat is concerned, the learned triat judge considered the evidence and held as foltows:

> Ifind that the ptaintiff was not afforded a right to a hearing in order to iustify the termination. Even if the defendant had the right to exercise its right to terminate the ptaintiff's employment by paying her in [ieu of notice, in the circumstances of this case the invocation of the ctause was unjustified and marred with bad faith. The ptaintiff should have been accorded a right to a fair hearing before basing her termination of emptoyment on grounds of poor performance and incompetence.

5 It is therefore my finding that the defendant's termination of the plaintiff's emptoyment was untawf u[/unjustif ied.

I have carefully considered the relevant provision of the Human Resource Manual 2012 and particularty paragraph l0.a (c) which provides as fo[[ows:

10.4 Notice period for termination of contract: - ln al[ cases, a contract of service shalt not be terminated untess notice is given to an employee except where the contract is terminated summarily or where the reason for termination is attainment of retirement age. Notice shat[ be in writing and shatl be:

(a) Not tess lhan two weeks where the employee has been employed for more than six months but less than one year.

(b) Not tess than one month where the employee has been employed for more than 12 months but less than five years. 15

> (c) Not tess than two months where the employee has been emptoyed for more than five years but [ess than 10 years.

(d) Not tess than three months where the service is l0 years or more.

There are two important elements to hightight in paragraph 10.4 of the Human Resource Manuat. This is that it must be shown whether the contract was terminated summarity or with notice. The second element is to estabtish whether the employment of the appeltant had lasted for more than five years but less than l0 years as a question of fact. 20

I witt start with the second element of the duration of the respondent's employment. lt is not in dispute that the respondent was initiatty employed after receiving a letter dated 2 August 2001 giving the commencement of her employment as l't September 2001 by the Central Tender Board of the Ministry of Finance, Ptanning & Economic Development. Secondty, the PPDA 25

- is a successor of the Centrat Tender Board. The respondent exhibited a contract dated I't Juty 2006 with the PPDA. The PPDA was estabtished by the Public Procurement and Disposat of Public Assets Act No I of 2003 as a successor of the Centrat Tender Board. Further it is not disputed that the services of the appettant were terminated with effect from 28rh February 30 - 2012. The defendant on the other hand contended in a written statement of 35

- 5 defence that the respondent was recruited on l" Juty 2009 as the Director, Finance and Administration. From these premises, it is the defendant's contention that the respondent to this appealwas employed with effect from l't of July 2009 and had served for about two years at the time of her termination. - The first matter of law is whether the services of the respondent were continued by the PPDA successor corporation and therefore whether the time of service shoutd be reckoned from l'r September 2001. The second question of fact which is materiaI is that in the joint scheduting memorandum the parties agreed that in the year 2003, the plaintiff was appointed by the defendant as Director of Finance and Administration and she served in the same position untit her services were terminated on 28th February 2012. The period in 2003 when the respondent/the ptaintiff in the High Court was employed is not indicated. What is clear is that the PPDA Act came into force on 2l't February 2003. 10 15 - Section 98 of the PPDA Act 2003 gives the transitional provisions between the Central Tender Board and the Pubtic Procurement and Disposal of Public Assets Authority and provides that: 20

98. TransitionaI provisio ns.

('l) Alt property, except that property the Minister may determine, which immediately before the commencement of this Act was vested in the Government for the use of the Central Tender Board, on the date of the commencement of this Act shalt immediately vest in the Authority subject to atI interests, tiabitities, charges, obligations and trusts affecting that property.

(2) Att tegat obligations, proceedings and claims pending in respect of the CentraI Tender Board shatt be continued or enforced by or against the Authority in the same manner as they wou[d have been continued or enforced if this Act had been in force at the time when the cause of action arose. 30

> (3) Except as provided for under this Act, this Act sha take precedence over atl other enactments establishing Tender Boards or [ike mechanisms, and the responsib[e procuring and disposing entities shatt within lwelve months after this Act comes into force, bring their practices in conformity with this Act.

(4) Section 11 shall not apply to the Board in existence immediately before 3rd March, 2014.

$\cdot$ .

(5) Section 91(5) shall not apply to a decision made by the Authority before 3rd March. 2014.

(6) A procurement process that had commenced before 3rd March, 2014 shall be continued to completion under this Act.

From the agreed facts, it can be concluded that the plaintiff, who is now the respondent, continued in her employment from the Central Tender Board and was taken up by the PPDA Authority. The fact of being employed from 1st September 2001 need not be proved under section 57 of the Evidence Act cap 6 as it is admitted by the defendant. In any case the conclusion is justifiable under section 98 (2) of the PPDA Act which continues the

- obligations of the Central Tender Board as obligations of the PPDA Authority. It means that all contracts which had obligations of the Central Tender Board continued in force unless brought to an end through - termination with contractual consequences. It follows that unless the 20 employment of the respondent was terminated under the old employment terms with the Central Tender Board, it continued under new terms with the PPDA Authority. That means that regulation 10.4 (c) of the Human Resource Manual required that the respondent be given a minimum of three months' notice and not two months' notice. From those premises, the notice was not 25 - the contractual notice and therefore not valid. It did not qualify as termination with notice. This is supported by section 69 of the Employment Act 2006 which provides that:

69. Summary termination.

(1) Summary termination shall take place where an employer terminates the 30 service of an employee without notice or with less notice than that to which the employee is entitled by any statutory provision or contractual term.

> (2) Subject to this section, no employer has the right to terminate the contract of service without notice or with less notice than that to which the employee is entitled by any statutory provision or contractual term.

$\mathsf{S}$

5 (3) An emptoyer is entitled to dismiss summarily, and the dismissaI shat[ be termed justified, where the employee has, by his or her conduct indicated that he or she has fundamenta[[y broken his or her obligations arising under the contract of service.

10 Where termination takes place without notice or with [ess notice than that to which the employee is entitled by any statutory provision or contractual term, such termination is a summary termination. lt is expressty stiputated that no employer has the right to terminate a contract of service with less notice than that to which the employee is entitled by any statutory provision or contractual term. ln other words, the termination with less notice would

15 be unlawfu[ under section 69 (2) of the Employment Act, 2006. Further, the provisions of section 69 (3) make it clear that an employer may dismiss summarily and the dismissa[ wou[d be justified where the employee has by his or her conduct indicated that he or she has f undamentally broken his or her obligations arising under the contract of service. ln the circumstances,

20 where the purported notice was given indicating that it was termination with notice, it foltows that because the notice was not adequate, it amounted to a summary dismissaI without justification as the grounds could not be infused into the notice because there were no grounds. lt purported to proceed and the appettant has submitted that, it proceeded under clause

25 l0.a (c) of the Human Resource Manual. Particularly, the binding terms of paragraph 5 of the amended written statement of defence of the defendant who is now the appettant avers as fo[[ows:

The defendant further avers that the said termination was carried out by the Board in the exercise of its contractuaI option to terminate the contract pursuant to clause 10.4 (c) of the Defendants Human Resource ManuaI and the ptaintiff was futty paid in [ieu of notice as required by them. (See Annexure D]).

It is onty in the alternative in paragraph 7 of the written statement of defence that the defendant averred that the termination was not unfair dismissaI because the board in any event had good reasons for termination of the contract. However, there is no stipulation anywhere that the termination was a summary dismissat. lt is a fundamental rule of pteading that a party cannot depart f rom their pteading except by way of amendment.

- Order 6 rule 19 of the Civil Procedure Rules allows the court at any stage of $\mathsf{S}$ the proceedings to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. Pleadings are the material from which issues arise and this is stipulated in Order 15 rule 1 of the Civil Procedure Rules which provides that issues arise where a material proposition of law or fact is affirmed by one party and denied by the other. 10 Particularly Order 15 rule 1 (3) of the CPR provides that each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue. The parties framed a general issue in the High Court as to whether the dismissal of the plaintiff from employment by the defendant was lawful. In the Court of Appeal, the appellant's counsel 15 submitted in the alternative that this dismissal was a summary dismissal in - terms of section 69 of the Employment Act. The appellant further relied on sections 65 and the 69 (1) & (2) of the Employment Act for the submission that the appellant was entitled to terminate the respondent's employment - summarily without notice or for no reason at all. That kind of submission is 20 unacceptable and offends the rules of pleading in that the defence of the defendant was clearly that the termination was with notice. Secondly and in the alternative that it was not an unfair dismissal. In considering whether a dismissal was unfair, there must have been a procedure which was - followed. The facts of this case were that the respondent upon returning 25 from leave found that she had been served with a letter which had been served on her house help terminating her services and offering her two months' pay in lieu of notice. The letter dated 22nd February 2012 is selfexplanatory and is termination of contract of employment with notice. - Paragraph 2 of the letter clearly indicated that the respondent would be paid 30 two months in lieu of notice in accordance with the Human Resource Manual and Employment Act. The appellant is barred by the doctrine of estoppels from asserting a different ground for termination of the employment of the respondent. The doctrine of estoppels is imported under - section 114 of the Evidence Act Cap 6 laws of Uganda which provides that: 35

114. Estoppel.

5 When one person has, by his or her dec[aration, act or omission, intentiona[[y caused or permitted another person to believe a thing to be true and to act upon that be[ief, neither he or she nor his or her representative shatl be a[[owed, in any suit or proceeding between himself or herself and that person or his or her representative, to deny the truth of that thing.

- Further, from the premises, I would find, untike the trial Judge, that the respondent was appointed with effect from l't September 2001, the period of service is reckoned from'l't September 2001 as Head Finance, which position she continued hotding in the PPDA Authority under new contractual terms. To hotd otherwise would mean that her services had been terminated under her contract terms with the CentraI Tender Board 10 15 - whereupon she was employed afresh under the PPDA Act in 2003. I do not accept that proposition and would go with the first proposition that her employment continued under the new Authority. There was no break in the emptoyment of the respondent from the l't of September 2001 until her - employment was re-designated under a new administrative title and under fresh terms in the same rote as the head of Finance and Administration. ln any case, the PPDA was a successor of the CentraI Tender Board and as stated above, took over att the obtigations of her predecessor in titte inctuding the respondent's contract of employment. 20 - The above conclusion woutd be suff icient to find that the learned triat judge reached the right conclusion that the termination was unlawfuI because it was a termination not in accordance with the terms of the contract. lfind that the respondent was entitled to 3 months' notice having been emptoyed for more than l0 years. 25 - Secondty, the controversy is whether the ptaintiff services were summarily terminated. To resolve the controversy, it is unnecessary to consider whether there was any justif ication or grounds for the summary dismissa[. The termination was termination with notice and the appeltant is barred by the doctrine of estoppels from asserting another defence to justify the te rm in at io n. 30 35

In the premises, I would disallow ground one of the appeal as being without $\mathsf{S}$ merit.

Ground two of the appeal was abandoned. Ground 2 was that: The learned Hon Justice of the High Court erred in law and in fact when she held that the Respondent is entitled to one month's payment in lieu of notice amounting to Ug. Shs. 7,800,000/=

Ground 3:

The learned Hon Justice of the High Court erred in law and in fact when she held that the claims made by the Respondent for gratuity and unpaid leave were not speculative and awarded her the sum of Ug. Shs. 6,578,313/= as payment for the untaken paid leave and Ug. Shs. 5,850,000/= as gratuity.

In ground three, the appellant's counsel submitted that the trial judge erred in law and fact when she awarded the respondent Uganda shillings 6,578,313/say as payment for leave which was not taken and Uganda shillings 5,850,000/= as gratuity. On the other hand, the respondents counsel relied on the appointment letter of the respondent which provided for gratuity and paid leave.

The learned trial judge noted that the claim of the plaintiff was for the periods of the months of March, April and May 2012 which constituted her period of notice. Secondly, the plaintiff claimed 17 days of leave that was not paid by the defendant for the months of January to May 2012. She found that 25 the claims were not speculative because the period that the plaintiff claimed was at the time when she was entitled to notice, or payment in lieu of notice during the period the plaintiff was entitled to receive all the benefits as if she was still in the employment of the defendant.

I accept the respondent's submission that the payment was contractual and 30 the trial judge applied the contract. In the premises, ground three of the appeal has no merit and is hereby disallowed.

Ground 4:

## 5 The learned Hon Justice of the High Court erred in law and in fact when she hetd that the Respondent is entitled to an award of general damages amounting to Ug. Shs.60,000,000/=

ln ground four, the appe[[ant's counseI submitted that the award of Uganda shiltings 60,000,000/= as general damages for unlawfu[ termination was erroneous and manifestly excessive. 0n the other hand, the respondent supported the award of general damages on the ground of the inhuman and degrading treatment of the respondent who had served for ll years. He submitted that the emptoyer shoutd have waited for the respondent to return from leave before serving her with a letter terminating her services.

As noted in ground one of the appeal, the respondent's services were terminated with less notice than the contractuaI notice that she was entitled to. Secondty, in terms of section 69 (2) Emptoyment Act, 2006, an employer has no right to terminate the service without notice or with [ess notice than that the employee is entitled by any statutory provision or contractual term. 15

- The termination of the services amounted to summary termination as is defined in section 69 (l) of the Emptoyment Act. Secondly, it coutd not be justified under section 59 (3) the Emptoyment Act, 2005 because it was purportedly a dismissaI with notice and do not pretend to be a summary dismissa[. Thirdty, if the respondent was to be summarily dismissed for 20 - incompetence or any other ground, she was entitled to be given a hearing which she was not. The proceedings of the court referred to by the appellant's counsel were proceedings in the normal course in which the respondent was required to submit a financia[ report. There were no disciptinary proceedings. Under section 68 ('l) of the Employment Act, it is provided that in any claim arising out of termination the employer sha[[ 25 30 - prove the reason or reasons for the dismissaI and where the employer fails to do so, the dismissat shatt be deemed to have been unfair within the meaning of section 7l of the Employment Act 2006. Further under section 7l of the Emptoyment Act, if the court f inds that a dismissal is unfair, the court may order inter atia the employer to reinstate the employee or order the 35 - emptoyer to pay compensation to the employee.

5 ln the circumstances where the respondent's services were terminated with tess notice than that to which the employee is entitted and where she was not called or given a hearing, the court had jurisdiction to order the appellant to pay compensation for unfair termination. The issue is therefore whether the damages of 60,000,000/= awarded by the trial judge was 10 excesstve.

The question of whether the damages awarded was excessive should also be considered in tight of other awards. The learned triat judge found that where services were only terminated, the court awarded general damages for embarrassment and inconvenience and every case has to be considered on the basis of its own facts. The contract was wrongly and untawfully terminated and the ptaintiff was entitled to an award of general damages. She considered the decision in the Bank of Uganda v Betty Tinkamanyire SCCA number 12 of 2007 where the Supreme Court hetd that damages should reflect the court's disapproval of the wrongfuI dismissal and the sum was not confined to an amount equivalent to the worker's wages.

The tearned triat judge awarded generaI damages for embarrassment and great inconvenience caused to the ptaintiff due to the unlawful termination caused to the plaintiff. The learned triat judge dectined to award aggravated damages. ln addition, she awarded four months'pay in accordance with section 66 (4) of the Emptoyment Act, 2006 in the sum of Uganda shillings ?,800,000/=. This was equivatent to one month's pay. She also awarded refund of monies deducted from the ptaintiff's terminaI benefits amounting to Uganda shittings 1,156,37A1=. Lastty, she awarded interest at l5% per annum from the date of fiting titt payment in fult.

The generat damages awarded was therefore equivalent to compensation for unfair termination of services. Secondty, it amounted to about eight months' pay and was just tess by 2,400,000 Uganda shittings. Hatsbu4y/s laws of Engtand 4th Edition Vot 15 define "wrongf u[ dismissat" in paragraph 302 as follows: 30

5 302: "Meaning of 'wrongful dismissa[". A wrongfuI dismissaI is a dismissal in breach of the relevant provisions in the contract of employment relating to the expiration of the term for which the emptoyee is engaged. To entitle the employee to sue for damages, two conditions must norma[[y be futfilted, namety:

- (l) the emptoyee must have been engaged for a fixed period or for a period terminab[e by notice and dismissed either before the expiration of that fixed period or without the requisite notice, as the case may be; and - His dismissal must have been wrongfut, that is to say without sufficient cause to permit his employer to dismiss him summari[y. (2)

ln addition, there may be cases where the contract of employment [imits the grounds on which the employee may be dismissed or makes dismissaI subject to a contractua[ condition of observing a particutar procedure, in which case it may be argued that, on a proper construction of the contract, a dismissal for an extraneous reason or without observance of the procedure is a wrongful dismissal on that ground.

- The common law action for wrongfuI dismissaI must be considered entirely separatety from the statutory action for unfair dismissat- The existence of the latter does not, however, abrogate the common law action which may stitt be particu[arly appropriate in two cases: 20 - where the emp[oyee is not entit[ed to bring an action for unfair dismissa[, (a) - Where the damages for wrongfu[ dismissal are likety to exceed the statutory maxima placed on compensation for unfair dismissa[, as, for examp[e, in the case of a wet[ remunerated employee on [ong notice or a fixed term co nt ra ct. (b)

Where an employee is wrongfutty dismissed, he is released, by the employer's repudiation of the contracl's provisions, in particutar from a restraint of trade cla use.

As noted above the termination of services was in breach of statutory provisions as wetl as contractuaI terms. ln those circumstances, the respondent was entitled to compensation under the principte of restitutio in integrum where [oss is assessed on the basis that the claimant shoutd be restored to a position she would have been in, had the breach of the contractual and statutory provisions not occurred. The East African Court

5 of Appeat in Dharamshiv Karsan [1974] I EA 4l hetd that generat damages are awarded to futfil the common law remedy ol restitutio in integrumwhich is that; Ptaintiff has to be restored as nearly as possibte to a position he or she would have been in, had the injury complained of not occurred.

According to Halsbury's Laws of Engtand Fourth Edition Reissue Volume 12 (l) paragraph 812 genera[ damages are those losses, usualty but not exctusively non-pecuniary, which are not capabte of precise quantification in monetary terms. The losses are presumed to be the natural or probable consequence of the wrong comptained of with the result that the Ptaintiff is required only to assert that such damage has been suffered. 10

Further in Johnson and another v Agnew [1979] I Atl ER 883 at page 896 Lord Witberforce hetd that the award of general damages is compensatory: 15

> i.e. that the innocent party is to be ptaced, so far as money can do so, in the same position as if the contract had been performed.

Finatty, where the court finds that the was wrongfuI dismissal, it appties the doctrine of restitutio in integrum to assess the natural or probable consequences of the wrongfuI act. Loss of income was in the circumstances the naturat or probable consequence of dismissat. Secondty loss of the usual amenities of emptoyment was a natural and probable cause of the wrongfuI act of dismissaI contrary to the contract or statutory provisions. Lastty, damages for pain, suffering, embarrassment cannot be 20 25

quantified. ln the circumstances, an award of about eight months monthty pay as genera[ damages woutd suffice under the principte of restitutio in integrum. The respondent was entitled to a monthly pay of Uganda shittings 7,800,000/=. ln the circumstances lwoutd find that the award of Uganda

shittings 60,000,000/= as generaI damages was an award of compensation and was not excessive in tight of the fact that the respondent tost her job. lt was equivalent to about eight months'pay. 30

ln the premises, I would disattow ground 4 of the appeal as being without merit.

## s Ground 5:

The learned Hon Justice of the High Court erred in law and in fact when she hetd that the Respondent is entitled to be issued a Certificate of Service by the Appettant.

I have carefully considered the submissions of the appettant in ground five of the appeat. The appettant's submission is that there was no evidence that the respondent apptied for a certificate of service which the appetlant refused and therefore it was premature or erroneous to make an order for the appetlant to issue the respondent with a certificate of service. 10

20 Without much ado it is clear that the appettant concedes that the respondent is entitted to a certificate of service. What the appettant could have objected to is on the question of costs for c[aiming entitlement through the court to the certificate of service. However, the respondent was entitted to lay before the court a[[ her claims to entitlements and remedies pursuant to a summary and unlawful dismissat. The appettant suffered no prejudice by the order issued by the learned triat judge who had the jurisdiction to issue the order in respect of a matter which was properly before her. ln the premises, ground 5 of the appeal [acks merit and is hereby disattowed. 15

## Ground 6:

25 The learned Hon Justice of the High Court erred in law and in fact when she hetd that the Respondent is entitled to a further four weeks' net pay from the Appettant in accordance with Section 66(a) of the Emptoyment Act,2006.

I have carefulty considered the submissions based on section 66 (4) of the Emptoyment Act,2006 in that it is contended for the appe[[ant that it did not faiI to comply with the provisions of Part Vll of the Emptoyment Act.

30 Section 66 (4) has to be placed in context. Generally, section 66 of the Emptoyment Act deals with notification and hearing before termination and needs to be set out in futt. Section 65 of the Emptoyment Act provides that:

66. Notification and hearing before termination.

5 (l) Notwithstanding any other provision of this Part, an employer shatl, before reaching a decision to dismiss an employee, on the grounds of misconduct or poor performance, explain to the emptoyee, in a language the emptoyee may be reasonably expected to understand, the reason for which the employer is considering dismissat and the employee is entitled to have another person of his or her choice present during this exp[anation.

> (2) Notwithstanding any provision of this Part, an employer sha[[, before reaching any decision to dismiss an employee, hear and consider any representations which the employee on the grounds of misconduct or poor performance, and the person, if any chosen by the emptoyee under subsection (1) may make.

(3) The emptoyer shat[ give the emptoyee and the person, if any, chosen under subsection (l) a reasonable time within which to prepare the representations referred to in subsection (2). 15

> (4) lrrespective of whether any dismissat which is a summary dismissaI is justified, or whether the dismissaI of the employee is fair, an emptoyer who fails to compty with this section is liable to pay the employee a sum equivalent to 4 weeks' net pay.

Part Vll of the Emptoyment Act, 2006 deals with "Disciptine and Termination". Notwithstanding that Part Vll was not apptied, section 66 (l) and the section 66 (2) of the Emptoyment Act, appties without prejudice to Part Vll of the Emptoyment Act. Section 66 (4) of the Emptoyment Act, is therefore appticabte to a case of dismissal without notice or to a summary dismissal and the award of the four weeks' pay is a statutory award that was justified and consistent with the Emptoyment Act, 2006 as set out above. ln the premises, ground six of the appeal has no merit and is hereby

disattowed. 30

## Ground 7:

The tearned Hon Justice of the High Court erred in law and in fact when she hetd that the Respondent is entitted to interest on items (aXbXcXdX0 at l5% per annum from the date of fiting titt payment in futl and interest of 6,6 per annum at court rate from the date of judgment titt payment in futt.

0n ground seven, the appe[[ant's counseI submitted that the triat judge erred when she awarded interest at 15% per annum on the compensatory orders. He contended that the [earned triatjudge did not give any reason to justify the award contrary to 0rder 2l rules 4 & 5 of the Civil Procedure R u 1es. 5

10 Order 2l rules are 4 & 5 of the Civit Procedure Rules provides as follows:

4. Contents of judgment.

Judgments in defendant suits sha[[ contain a concise statement of the case, the points for determination, the decision on the case and the reasons for the decision.

15 5. Court to state its decision in each issue

ln suits in which issues have been framed, the court sha[[ state its finding or decision, with the reasons for the finding or decision, upon each separate issue, unless the finding upon any one or more of the issues is sufficient for the decision of the suit.

- 20 It is true that the learned triat judge in her award of interest at 15% per annum, did not give any reasons. The award of interest is only contained in the summary of orders. The real question is whether the appetlant was prejudiced. ln order to consider whether the appettant was prejudiced, the first ground submitted on was that there was no reason or explanation to justify the interest awarded. Secondty, interest cannot be awarded on an - 25 expired or terminated contract. Thirdty, there was no prayer for interest in the submissions. Lastly the ptaintiff in the ptaint prayed for interest at court rate which is 6% but the trial judge awarded l5% per annum.

30 I have carefully considered the taw, for the court to determine the question of interest as suggested by the appetlant's counset, it had to be an issue arising from the pteadings or agreed upon. The parties agreed to the issue of what remedies were avaitable in the circumstances generally and did not formulate a specific issue as to the question of interest. ln the written submissions, the ptaintiff prayed for interest al 25% per annum from 28 35 February 2012 untit payment in futt.0n the other hand, in the written

5 submissions of the defendant, the appettant's counsel addressed the court on the question of tiabitity to interest. lt is therefore not true that the ptaintiff's counseI did not address the court on what interest was payable.

ln awarding interest, the learned triat judge did not give any reasons and the onty question for consideration is whether this was prejudiciaI to the defendant/the appetlant to this appea[. lnterest is awarded at the discretion of court under section 26 (2) ol the Civit Procedure Act cap 7l which provides that:

(2) Where and insofar as the decree is for the payment of money, the court may, in the decree, order interest at such a rale as the court deems reasonable to be paid on the principat sum adiudged from the date of the suit to the date of the decree, in addition to any interest adjudged on such principat sum for any period prior to the institution of the suit, with further interest at such rate as the court deems reasonable on the aggregate sum so adjudged from the date of the decree to the date of payment or to such eartier date as the court thinks fit.

The court therefore has jurisdiction to award the interest from the date of fiting the suit to the date of the decree in addition to any interest on the principat sum f rom the date of judgement. Secondty, the interest awarded is supposed to be reasonable interest. 20

The ptaintiff fited an action in the High Court on l3th March 2012' Judgment was delivered on 27th of August 2015 about three years and five months tater. ln the intervening period, the claim of the ptaintiff is deemed to have accrued at the time the claim was made save for the award of general damages. 25

ln African Field Epidemiotogy Network (EFENET) v Peter Wasswa Kityaba; Civit Appeal No. 124 of 2017 at page 42, lhe Appettant contested an award of 24% inleresl on att the awards of the court on the ground that it was excessive. The court retied on stroud's Judiciat Dictionary of words and Phrases, Sweet & Maxwett 2000 Edition for the proposition that interest is compensation paid by the borrower to the [ender for deprivation of the use of his money. Further in Riches v westminster Bank Ltd [1947] I ALLER 469 30 35

HL al 472 Lord Wright hetd that

5 '... the essence of interest is that it is a payment which becomes due because the creditor has not had his money at the due date. lt may be regarded either as representing the profit he might have made if he had had the use of the money, or, conversely, the loss he suffered because he had not that use. The generaI idea is that he is entitled to compensation for the deprivation...'

ln other words, interest is awarded for the period when the ptaintiff or claimant did not have the use of the money which is due. Fottowing that principte, the award of interest on the 60,000,000/= from the date of fiting the suit was erroneous because it had not accrued. However, the award of interest on the amount of the other awards from the date of fiting the suit was not erroneous. 15 10

Coming to the award of interest at l5% per annum, this was not pleaded for as the respondent had prayed for an award of interest at court rate. The learned triat judge however awarded interest at a reasonable rate she deemed fit. The court was extensively addressed by both parties on the award of interest. No prejudice was occasioned to the appellant by the award of interest at 15% per annum which was not excessive in the circumstances.

ln the premises, I would partiatty a[[ow ground 7 of the appea[ only on the issue of whether interest coutd be awarded on the 60,000,000/= from the date of f iting the suit to the date of judgement. That was an erroneous award. I would dismiss the rest of ground 7 of the appea[. I would uphotd the rest of the awards of interest on the other heads of claim as stipulated in the decree. The award of interest of l5% per annum on the 60,000,000/= from the date of the suit was erroneous. The interest would be awarded at 6% per annum on the 60,000,000/= award from the date of judgment titt payment in fu tt. 25 30

## Ground 8:

The learned Hon Justice of the High Court erred in law and in fact when she hetd that the Respondent is entitled to costs of the suit.

- 5 with regard to ground 8, costs foltow the event under section 27 of the civit Procedure Act. The suit of the ptaintif f substantiatly succeeded and therefore it was proper for the learned triat judge to award costs of the suit to the respondent. Ground 8 of the appeat has no merit and is hereby disatlowed. - 10 ln the premises, lwoutd make an order that the appetlant's appeal substantialty faits and is hereby dismissed with costs save for ground 7 which was partiatty attowed to the extent that interest of 15% on the award of 60,000,000 /= lrom the date of fiting the suit to the date of judgment is disaltowed and instead the interests would run on the award of 60,000,000/= from the date of the Judgment titt payment in futt at 6% per annum. 15

.,. \* Dated at Kampata the i day ol July 2022

Christopher Madrama

20 Justice of Appeat

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TItE RFJPUIII,Ic OF UOAIIDA

# THE COURT OF APPEAL OF UGANDA AT KAMPALA

## CORAM: MADRAMA, MULYAGONJA AND MUGENYI, JJA

# CIVIL APPEAL NO. 14 OF 2016

# THE PUBLIC PROCUREMENT AND DISPOSAL OF ASSETS AUTHORITY APPELLANT

# VERSUS

MARY PAMELA SSOZI RESPONDENT

(Appeal from the Judgment of the High Court of Uganda (Musoke, J) in Civil Appeal No. 63 of 2012)

Civil Appeal No. l4 ol'201o

### JUDGMENT OF MONICA K. MUGENYI JA

1. I have had the beneflt of reading in draft the lead judgment of my brother, Hon. Justice Christopher Madrama in this Appeal. I agree with the conclusion that the Appeal fails for the reasons advanced therein. lwould, nonetheless, highlight the following additional observations with regard lo Ground 7 of the Appeal. For ease of reference, that ground of appeal is reproduced below.

> The learned Hon Justice erred in law when she held that lhe Respondent is entitled to interest on items (a), (b), (c), (d) and (0 at 1syo pcr annum from the date of liling till payment in lu and interest ol 6%0 per annum al coud rate hom the date ot iudgment ti payment in full.

2. Section 26(2) oi the Civil Procedure Act (CPA) does, in the following terms, grant trial courts the discretionary mandate to award tnterest on decretal amounts. lt provides as follows:

> Where and in so far as a decree is for the payment of money, the court may, in the decree, order interest at such rate as the court deems reasonable to be paid on the principal sum adjudged from the date of the suit to the date of the decrcs, in addition to any interest adjudged on such principal sum for any period prior to the institution of tho suit, with further interest at such rate as the court deems reasonable on ths aggrsgato sum so adjudged from the date of the decree to the date of payment or to such earlier date as the court thinks tit.

- 3. lt is well settled law that an appellate court should not interfere with the exercise of a trial court's unfettered discretion unless it is satrsfied that the trial court misdirected itself in some matter and as a result arrived at a wrong decision, orwhere it is manifestly apparent from the case as a whole that the trial court was clearly wrong in exercise of its discretton and as a result there was a miscarriage of .lusttce. See Banco Arab Esoanol v Bank of Uoanda, Civil Appeal No. I of 1998 (Supreme Couft) and Mbooo & Another v Shah (196il EA 93 ln Devii v Jinabhai 1934) "l EACA 89 it was held that where there was no improper exercise of discretion a judge's decision would not normally be upset - 4. As was observed by this Court in Ali Muteza v Jessica Nakku Aqanva & nother. Civil ADpeal No. 271 ol 2019, 'courts unfettered discretion may only be qualified by the duty upon them to exercise it judiciously ' Thus, in American Express lnternational Bankinq Ltd v AtuI (1990 - 94',t EA 't0 (Supreme Court, Uganda) it was held that an

appellate court may only interfere with the discretion exercised by a trial court in the following instances:

- i. Vvhere the judge misdirects himself with regard to the principles governing the exercise of discretion: - ii. Where the judge takes into account matters that he ought not to consider; or fails to take into account matters that he ought to consider, - iii. Vvhere the exercise of discretion rs plainly wrong - 5. Turning to the present Appeal, I am in complete agreement with the conclusion in the lead judgment that it was erroneous of the Trlal court to award lnterest on general damages (in the sum of Ushs. 60,000,000/-) from the date of the filing of the the suit because the said damages had not yet accrued at that time. lwould abide the decision to award interest on these general damages from the date of the judgment until payment in full. - 6. The trial court did award an additional 6% interest on the total decretal amount from the date of the judgment until payment in full, which matter is also contested in Ground 7 o1 this Appeal. section 26(2) of the cPA duly provides for 'further interest at such rate as the court deems reasonable on the aggregate sum so adjudged from the date ofthe decree to the date of payment.' To that extent, and neither finding the court rate of6% interest to be unreasonable nor otherwise deducing any improper exercise of the court's discretion, lwould respectfully disallow in the Appellant's contestations to the contrary. - 7. On the foregoing basis, I do abide the conclusion in the lead Judgment that this Appeal be dismissed with costs to the Respondent.

It is so ordered.

Y Dated and delivered at Kampala this lf . day of .........9\*1 .,2022. )

WL^/U-., "ti ",,It

Monica K. Mugenyi Justice of Appeal

Civil Appeal No. I 4 trf 21) I 6

# THE REPUBLIC OF UGANDA, IN THE COURT OF APPEAL OF UGANDA AT KAMPALA (Coram: Madrama, Mulyagonja, Mugenyi, JJA) CIVIL APPEAL NO. 14 OF 2016

#### **BETWEEN**

# THE PUBLIC PROCUREMENT & DISPOSAL OF PUBLIC ASSETS AUTHORITY::::::::::::::::::::::::::::::::::::

### AND

## MRS. MARY PAMELA SOZI ::::::::::::::::::::::::::::::::::::

# (Appeal against the of Judgment of Hon. Lady Justice Elizabeth Musoke, Judge of the High Court of Uganda, dated 27th August 2015, in Kampala HCCS No. 63 of 2012)

I have had the benefit of reading in draft the judgment of my learned brother, the Hon Justice Christopher Madrama Izama.

I agree with the decision that the appeal only partially succeeds on one aspect of the interest that was awarded, for the reasons that he has given. I also agree with the final order that the rest of the appeal be dismissed, with the orders that he has proposed.

Dated at Kampala this $\frac{1}{8}$ day of $\frac{1}{8}$ $2022.$

Irene Mulyago

**JUSTICE OF APPEAL**