Wilson Wanyama v Development and Management Consultants International - (HCT-00-CC-CS 332 of 2004) [2006] UGCommC 17 (8 May 2006)

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{\nofcharsws20314}{\vern24579}}\margl1728\margr1152 \widowctrl\ftnbj\aenddoc\noxlattoyen\expshrtn\noultrlspc\dntblnsbdb\nospaceforul\formshade\horzdoc\dgmargin\dghspace180\dgvspace180\dghorigin1728\dgvorigin1440\dghshow1\dgvshow1 \jexpand\viewkind1\viewscale100\pgbrdrhead\pgbrdrfoot\splytwnine\ftnlytwnine\htmautsp\nolnhtadjtbl\useltbaln\alntblind\lytcalctblwd\lyttblrtgr\lnbrkrule\nobrkwrptbl\snaptogridincell\allowfieldendsel\wrppunct\asianbrkrule\nojkernpunct\rsidroot7613899 \fet0 {\*\ftnsep \pard\plain \ql \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0 \fs24\lang1033\langfe1033\cgrid\langnp1033\langfenp1033 {\insrsid14432530 \chftnsep \par }}{\*\ftnsepc \pard\plain \ql \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0 \fs24\lang1033\langfe1033\cgrid\langnp1033\langfenp1033 {\insrsid14432530 \chftnsepc \par }}{\*\aftnsep \pard\plain \ql \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0 \fs24\lang1033\langfe1033\cgrid\langnp1033\langfenp1033 {\insrsid14432530 \chftnsep \par }}{\*\aftnsepc \pard\plain \ql \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0 \fs24\lang1033\langfe1033\cgrid\langnp1033\langfenp1033 {\insrsid14432530 \chftnsepc \par }}\sectd \linex0\endnhere\sectlinegrid360\sectdefaultcl\sectrsid7613899\sftnbj {\footer \pard\plain \s15\ql \li0\ri0\widctlpar\tqc\tx4320\tqr\tx8640\pvpara\phmrg\posxc\posy0\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid12729474 \fs24\lang1033\langfe1033\cgrid\langnp1033\langfenp1033 {\field{\*\fldinst {\cs16\insrsid1198173 PAGE }}{\fldrslt {\cs16\lang1024\langfe1024\noproof\insrsid8143580 1}}}{\cs16\insrsid1198173 \par }\pard \s15\ql \li0\ri0\widctlpar\tqc\tx4320\tqr\tx8640\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0 {\insrsid1198173 \par }}{\*\pnseclvl1\pnucrm\pnstart1\pnindent720\pnhang {\pntxta .}}{\*\pnseclvl2\pnucltr\pnstart1\pnindent720\pnhang {\pntxta .}}{\*\pnseclvl3\pndec\pnstart1\pnindent720\pnhang {\pntxta .}}{\*\pnseclvl4\pnlcltr\pnstart1\pnindent720\pnhang {\pntxta )}} {\*\pnseclvl5\pndec\pnstart1\pnindent720\pnhang {\pntxtb (}{\pntxta )}}{\*\pnseclvl6\pnlcltr\pnstart1\pnindent720\pnhang {\pntxtb (}{\pntxta )}}{\*\pnseclvl7\pnlcrm\pnstart1\pnindent720\pnhang {\pntxtb (}{\pntxta )}}{\*\pnseclvl8 \pnlcltr\pnstart1\pnindent720\pnhang {\pntxtb (}{\pntxta )}}{\*\pnseclvl9\pnlcrm\pnstart1\pnindent720\pnhang {\pntxtb (}{\pntxta )}}\pard\plain \ql \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0 \fs24\lang1033\langfe1033\cgrid\langnp1033\langfenp1033 {\fs28\insrsid1136281\charrsid12007306 \par }\pard \qc \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid7613899 {\b\f36\fs28\insrsid7613899 THE REPUBLIC OF UGANDA \par \par IN THE HIGH COURT OF UGANDA AT KAMPALA \par (COMMERCIAL }{\b\f36\fs28\insrsid1197144 COURT }{\b\f36\fs28\insrsid7613899 DIVISION) \par \par }{\b\f36\fs28\insrsid1197144 HCT-00-CC-CS-0}{\b\f36\fs28\insrsid7613899 332 OF 2004 \par }\pard \ql \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid7613899 {\b\f36\fs28\insrsid7613899 \par }\pard \qj \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid7613899 {\b\f36\fs28\insrsid7613899 \par WILSON WANYAMA :::::::::::::::::::::::::::::::: PLAINTIFF \par \par }\pard \qc \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid5132850 {\b\f36\fs28\insrsid7613899 VERSUS \par }\pard \qj \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid7613899 {\b\f36\fs28\insrsid7613899 \par DEVELOPMENT & MANAGEMENT ] \par CONSULTANTS INTERNATIONAL ] ::::::::::::::::: DEFENDANT \par \par \par BEFORE: }{\b\f36\fs28\ul\insrsid7613899\charrsid1210767 THE HONOURABLE MR. JUSTICE YOROKAMU BAMWINE}{\b\f36\fs28\insrsid7613899 \par \par }{\b\f36\fs28\ul\insrsid7613899\charrsid10682859 J U D G M E N T}{\b\f36\fs28\insrsid7613899 : \par \par }\pard \qj \li0\ri0\sl480\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid1713212 {\f36\insrsid1713212 The }{\f36\insrsid665383 p}{\f36\insrsid1713212 laintiff\rquote s claim against the }{\f36\insrsid665383 d}{ \f36\insrsid1713212 efendant is for special, general and punitive damages for unlawful termination of employment, interest and costs of the suit. He alleges that in February 2001 he entered into an oral contract of employment with the }{ \f36\insrsid665383 d}{\f36\insrsid1713212 efendant and that this contract was for a duration of six years.}{\f36\insrsid10682859 The }{\f36\insrsid665383 d}{\f36\insrsid10682859 efendant denies existence of any such contract. The }{\f36\insrsid665383 d }{\f36\insrsid10682859 efendant contends, however, that he was engaged as a casual worker, subject to availability of work from time to time.}{\f36\insrsid7613899 \par }{\f36\insrsid1210767 \par At the scheduling stage the parties agreed: \par 1.\tab That the }{\f36\insrsid665383 p}{\f36\insrsid1210767 laintiff was employed by the }{\f36\insrsid665383 d}{\f36\insrsid1210767 efendant. \par 2.\tab That the }{\f36\insrsid665383 p}{\f36\insrsid1210767 laintiff\rquote s employment with the }{\f36\insrsid665383 d}{\f36\insrsid1210767 efendant was summarily terminated. \par There are four issues for determination: \par 1.\tab }{\f36\insrsid8017524 What was the nature of the }{\f36\insrsid11101090 p}{\f36\insrsid8017524 laintiff\rquote s employment with the }{\f36\insrsid11101090 d}{\f36\insrsid8017524 efendant?}{\f36\insrsid1210767 \par }{\f36\insrsid8017524 2.\tab Whether the termination of the }{\f36\insrsid11101090 p}{\f36\insrsid8017524 laintiff\rquote s employment with the }{\f36\insrsid11101090 d}{\f36\insrsid8017524 efendant was \tab lawful. \par 3.\tab Whether the }{\f36\insrsid11101090 p}{\f36\insrsid8017524 laintiff is entitled to the reliefs sought. \par 4.\tab Whether the }{\f36\insrsid11101090 d}{\f36\insrsid8017524 efendant is entitled to the remedies set out in the counterclaim. \par \par As a general principle, offers of appointment in this country are required to be in writing. Thus under S.11 (1) of the Employment Act, Cap. 219, a contract of service for six months or more, or for a number of working days totaling six months or more, shall be made in writing. \par \par There may of course be instances like the instant one where parties co-exist in an undefined relationship. At the end of the day, the Court must define for them the nature of that relationship. \par }{\f36\insrsid2372610 \par In the instant case, the parties agree that there existed some form of an employment relationship between them. The }{\f36\insrsid11101090 p}{\f36\insrsid2372610 laintiff contends that it was for a fixed period of 6 years while the }{ \f36\insrsid11101090 d}{\f36\insrsid2372610 efendant says that it was a casual employment. From available literature, there are two main factors which identify a casual employee. First, he is not employed for more than twenty four hours at a time, and secondly, his contract provides f or payment at the end of each day. See: THE RIGHTS OF AN EMPLOYEE IN KENYA by Okech Owiti, at page 15. \par }{\f36\insrsid2893133 \par I have considered the }{\f36\insrsid11101090 p}{\f36\insrsid2893133 laintiff\rquote s evidence on this point vis-\'e0-vis that of the }{\f36\insrsid11101090 d}{\f36\insrsid2893133 efendant. The }{\f36\insrsid11101090 p}{\f36\insrsid2893133 laintiff \rquote s story is that he was employed by the }{\f36\insrsid11101090 d}{\f36\insrsid2893133 efend ant in August 2001 as a Business Development Manager and that the contract was to run for six years. He claims that at the time of termination, the employer was organizing a formal agreement but so far he had only issued an identity card, P. Exh. 1. Acc o rding to him, his duties involved marketing, planning and liaison. That he was getting a gross pay of Shs.750,000-. He has tendered in evidence two pay slips, P. Exh. 11. The defence version is that the Plaintiff was offered a temporary appointment to do with town running, messenger tasks of sorts. That the organization used to pay him whenever it had money. The }{\f36\insrsid11101090 d}{\f36\insrsid2893133 efendant\rquote s Managing Director had this to say: \par }\pard \qj \li720\ri720\sl480\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin720\lin720\itap0\pararsid949446 {\i\f36\insrsid2893133\charrsid949446 \'93As consultants, we work on contracts. Whenever we got money from an assignment, we shared the little from it. He was not a permanent employee of the organization.\'94 \par }\pard \qj \li0\ri0\sl480\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid1713212 {\f36\insrsid15482922 \par He disputes both the identity card and the two pay slips presented by the }{\f36\insrsid11101090 p}{\f36\insrsid15482922 laintiff as evidence of their relationship. \par \par From the above, the evidence on record supports existence of an oral contract of employment. }{\f36\insrsid6761445 In any case, both counsel for the }{\f36\insrsid11101090 p}{\f36\insrsid6761445 laintiff and for the }{\f36\insrsid11101090 d}{ \f36\insrsid6761445 efendant do agree that the }{\f36\insrsid11101090 p}{\f36\insrsid6761445 laintiff was employed}{\f36\insrsid14117777 by the }{\f36\insrsid11101090 d}{\f36\insrsid14117777 efendant. It is the terms of the contract which are of course in dispute. The law is that where a term of contract has not been expressed, a Court will undertake to imply it where it is necessary to give effect to the intentions of the parties.}{ \f36\insrsid15482922 \par }{\f36\insrsid14117777 \par I have considered the issue of the impugned identity card, P. Exh. 1. The date of issue is given as 13/8/2001 and the expiry date as 12/8/2006. It bears a signature said to be the Managing Director\rquote s, one Dr. Sam Katabaazi. \par \par For his part, Dr. Katabaazi denied knowledge of any such identity card. He said}{\f36\insrsid6503701 that}{\f36\insrsid15363663 they could not have issued him an identity card when he was n ot on appointment. But he admitted that the company issued identity cards to employees, especially consultants, and that he was the one signing those cards on behalf of the organization. He did not say how he expected the }{\f36\insrsid11101090 p}{ \f36\insrsid15363663 laintiff to carry out the organization\rquote s messenger like errands without any form of identification. On being shown P. Exh. 1, he said:}{\f36\insrsid14117777 \par }\pard \qj \li720\ri720\sl480\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin720\lin720\itap0\pararsid949446 {\i\f36\insrsid15363663\charrsid949446 \'93I never signed this card. I\rquote m seeing it first time. It bears a signature which is not mine. I never authorized its issuance.\'94 \par }\pard \qj \li0\ri0\sl480\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid1713212 {\f36\insrsid7039845 \par Clearly, this is where the problem lies. The }{\f36\insrsid9331216 p}{\f36\insrsid7039845 laintiff says the signature thereon is Dr. Katabaazi\rquote s. Dr. Katabaazi denies it. Neither party made an attempt to offer expert evidence to confirm or destroy the assertion. \par }{\f36\insrsid12257303 \par I have also addressed my mind to the evidence of both parties, especially an agreement between them, D. Exh. 1, concerning a motor vehicle, No. UAD 850A. In the agreement, the }{\f36\insrsid11101090 p}{\f36\insrsid12257303 laintiff is therein described throughout as an employee of the }{\f36\insrsid11101090 d}{\f36\insrsid12257303 efendant. Dr. Katabaazi does not deny execution of that agreement. If anything, the defence claim for Shs.2,000,000- is based on this agreement. In the agreement, the parties agreed that the payment would be recovered from the employee\rquote s monthly salary and that the payment would be in 24 monthly instalments of Shs.150,000- each. By implication, the }{\f36\insrsid9977771 d}{\f36\insrsid12257303 efendant expected to recover the cost of the car from the }{\f36\insrsid11101090 p}{ \f36\insrsid12257303 laintiff\rquote s}{\f36\insrsid9701387 monthly earnings.}{\f36\insrsid12257303 \par }{\f36\insrsid9701387 \par I have considered all this evidence and come to the conclusion that it cannot be true, as Dr. Katabaazi claims, that the first time he saw the identity card was when it was shown to him in Court. In the }{\f36\insrsid15421320 W}{\f36\insrsid9701387 ritten }{\f36\insrsid15421320 S}{\f36\insrsid9701387 tatement of Defence, WSD in response to the }{\f36\insrsid11101090 p}{\f36\insrsid9701387 laintiff\rquote s}{\f36\insrsid15421320 averment in the plaint that the }{\f36\insrsid11101090 d}{ \f36\insrsid15421320 efendant had issued an identity card to him, it states:}{\f36\insrsid9701387 \par }\pard \qj \li720\ri720\sl480\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin720\lin720\itap0\pararsid949446 {\i\f36\insrsid15421320\charrsid949446 \'93(a). }{\i\f36\insrsid1198173 }{\i\f36\insrsid15421320\charrsid949446 \'85\'85\'85\'85\'85 \'85\'85\'85\'85\'85 \par (b)}{\i\f36\insrsid14892376 .}{\i\f36\insrsid15421320\charrsid949446 That the }{\i\f36\insrsid11101090 p}{\i\f36\insrsid15421320\charrsid949446 laintiff was only issued with an identity card for identification purposes and not as a contract of employment for a fixed term. The expiration date on the identity card therefore}{\i\f36\insrsid7487943\charrsid949446 does not in}{ \i\f36\insrsid8138732\charrsid949446 any way relate to a contractual period or expiration thereof.\'94}{\i\f36\insrsid15421320\charrsid949446 \par }\pard \qj \li0\ri0\sl480\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid1713212 {\f36\insrsid8138732 \par In view of this averment in the }{\f36\insrsid11084963 d}{\f36\insrsid8138732 efendant\rquote s own WSD, I have not found DW1 Katabaazi to have been a truthful witness on this point. The system of pleadings, held the Supreme Court in INTERFREIGHT FORWARDERS (U) LTD \endash VS- EADB [1994-95] HCB 54,}{\f36\insrsid16088544 is nec essary in litigation. It operates to define and deliver with clarity and precision the real}{\f36\insrsid3953505 matters in controversy between the parties upon which they can prepare and present their respective cases and upon which the Court will be called to adjucate between them. A party is expected and is bound to prove}{\f36\insrsid1204033 the case as alleged by him and as covered in the issues framed. He will not be allowed at the trial to change his case o}{\f36\insrsid12135722 r }{\f36\insrsid1204033 set up a case}{\f36\insrsid12519674 inconsistent with what he alleged in his pleadings except by way of amendment of pleadings. The }{\f36\insrsid12135722 d}{\f36\insrsid12519674 efendant did not apply to amend its WSD at any stage of the proceedings to retract the hitherto admitted issuance of the identity card.}{\f36\insrsid8138732 \par }{\f36\insrsid12519674 \par From what I have already stated above, Dr. Katabaazi\rquote s evidence regarding the identity card is inconsistent with the }{\f36\insrsid3560117 d}{\f36\insrsid12519674 efendant\rquote s defence on it as per its WSD.}{\f36\insrsid11026410 In the absence of an expert\rquote s evidence to tilt the balance in the }{\f36\insrsid3560117 d}{\f36\insrsid11026410 efendant\rquote s favour, Court is inclined to accept the }{\f36\insrsid3560117 p}{\f36\insrsid11026410 laintiff\rquote s evidence that the card was issued by the }{\f36\insrsid3560117 d}{\f36\insrsid11026410 efendant.}{\f36\insrsid12519674 \par }{\f36\insrsid11026410 \par At the hearing, in an attempt to show that the pay slips (P. Exh. 11) are a forgery, Dr. Katabaazi undertook to produce a typical pay slip issued by the }{\f36\insrsid3560117 d}{\f36\insrsid11026410 efendant. He did not do so. The re-payment schedule produce}{\f36\insrsid9784625 d by the }{\f36\insrsid3560117 d}{\f36\insrsid9784625 efendant as evidence that Shs.15 0,000- was being recovered from him monthly shows that Shs.150,000- was recovered from the }{\f36\insrsid3560117 p}{\f36\insrsid9784625 laintiff on 23/7/2002. The impugned pay slip indicates so as well.}{\f36\insrsid11026410 \par }{\f36\insrsid5842298 Accordingly, Court accepts the }{\f36\insrsid16007524 p}{\f36\insrsid5842298 laintiff evidence that he was earning Shs.750,000- per month. I n all these circumstances, Court is satisfied that there was an oral contract of employment between the parties. Under this oral contract, the }{\f36\insrsid13701186 p}{\f36\insrsid5842298 laintiff\rquote s salary per month was Shs.750,000-. \par \par I so find. \par }{\f36\insrsid3221582 \par As to whether the termination of this oral contract of employment was lawful, I have already held that the terms of the contract were never reduced in writing. In law, once an employee alleges unfair dismissal, it becomes incumbent upon the employer to show that the dismissal was fair. \par \par In the instant case, the parties had been together between August 2001 and May 2003, a period of about one year and nine months. It }{\f36\insrsid13701186 was}{\f36\insrsid3221582 in my view fair for the }{\f36\insrsid13701186 p}{\f36\insrsid3221582 laintiff to expect the }{\f36\insrsid13701186 d}{\f36\insrsid3221582 efendant to give him a sound reason for the termination of the relationship. \par \par In matters of this nature, Courts invariably come into the picture after the event, that is, after the dismissal, when an employee is complaining that he was removed from the job for a reason which did not justify such action. \par }{\f36\insrsid4876752 \par The general position is that a master may terminate the contract with his servant any time for any reason or even for no reason at all. See: }{\f36\ul\insrsid4876752 OKORI \endash VS- UEB [1981] HCB 52.}{\f36\insrsid13523509 Where the contract has been reduced }{\f36\insrsid1779981 in}{\f36\insrsid13523509 writing, the parties are bound by its terms. In otherwords, the employee will exp ect to be dismissed in accordance with the procedure agreed upon by the parties. No such terms exist in this case.}{\f36\insrsid4876752 \par }{\f36\insrsid72104 \par According to the }{\f36\insrsid1779981 p}{\f36\insrsid72104 laintiff, he was attending a meeting with KCC as part of his normal duties when his boss Sam Katabaazi called him. He asked him whether he had received some funds from a sister }{ \f36\insrsid14643011 organization to the }{\f36\insrsid1779981 d}{\f36\insrsid14643011 efendant based in Arua. The witness (the }{\f36\insrsid1779981 p}{\f36\insrsid14643011 laintiff) said no. He went to see him (the boss) and upon reaching there he was interrogated by the police and later arrested. It is the }{\f36\insrsid1198173 p}{\f36\insrsid14643011 laintiff\rquote s evidence that although he was not an employee of the Arua based organization, he had had some dealings with one Moses Jurua whom he had requested at personal level to lend him some money. He had lent him some Shs.2,380,000- in two instalme nts of Shs.1,080,000 and Shs.1,300,000- respectively. The Shs.1,080,000- was transferred to his (}{\f36\insrsid11084963 p}{\f36\insrsid14643011 laintiff\rquote s account) at Nile Bank. It is his evidence that he was supposed to pay it back and that he did pay it back through Western Union}{\f36\insrsid14683778 at Nile Bank.}{\f36\insrsid72104 \par }{\f36\insrsid14683778 \par From the evidence, it is these an authorized borrowings on the part of the }{\f36\insrsid1779981 p}{\f36\insrsid14683778 laintiff}{\f36\insrsid13051666 and one Jurua which sparked off the controversy between the parties}{\f36\insrsid11170836 . According to DW1 Katabaazi, the }{\f36\insrsid1779981 d}{\f36\insrsid11170836 efendant\rquote s concern was that the }{\f36\insrsid1779981 p}{\f36\insrsid11170836 laintiff had been given money by Mr. Jurua for delivery to the }{\f36\insrsid1779981 d}{ \f36\insrsid11170836 efendant and he never did so. He, Jurua, was the Project Manager in Arua in a sister organization to the }{\f36\insrsid1779981 d}{\f36\insrsid11170836 efendant in which the witness, Dr. Katabaazi, also had a hand. Police detained the }{\f36\insrsid1779981 p}{\f36\insrsid11170836 laintiff for a day or so and he was t hen bailed out. The matter never went to Court. The next thing he saw was a letter from the }{\f36\insrsid1779981 p}{\f36\insrsid11170836 laintiff\rquote s lawyers warning that }{\f36\insrsid1779981 p}{\f36\insrsid11170836 laintiff was in the process of filing a suit for unlawful dismissal.}{\f36\insrsid14683778 \par }{\f36\insrsid11170836 \par For his part, PW2 Jurua denied the alleged borrowing of funds from him by the }{\f36\insrsid1779981 p}{\f36\insrsid11170836 laintiff. According to him, the Arua office experienced some shortage of operational funds one time. They borrowed from the }{ \f36\insrsid1779981 d}{\f36\insrsid11170836 efendant company in Kampala. Since the }{\f36\insrsid1779981 p}{\f36\insrsid11170836 laintiff had been introduced to him as an employee of sorts in the organization, he (Jurua) started channeling the refunds through the }{\f36\insrsid1779981 p}{\f36\insrsid11170836 laintiff for on ward transmission to the }{\f36\insrsid1779981 d}{\f36\insrsid11170836 efendant. In the end, he learnt that the funds were instead going to the }{\f36\insrsid1779981 p}{\f36\insrsid11170836 laintiff\rquote s personal account in Nile Bank. \par }{\f36\insrsid8978720 \par From the evidence, whether the deal between the }{\f36\insrsid1779981 p}{\f36\insrsid8978720 laintiff and Jurua was genuine or not, the }{\f36\insrsid1779981 d}{\f36\insrsid8978720 efendant thought that it was a fishy one. Indeed, Jurua has denied ever lending money to the }{\f36\insrsid1779981 p}{\f36\insrsid8978720 laintiff as alleged by him.}{\f36\insrsid10511819 A contract of employment is based on confidential relationship between the employer and the employee. Where the personal confidence has ceased, the Court will not enforce the contract. True the }{\f36\insrsid1779981 p}{\f36\insrsid10511819 laintiff has not been subjected to the criminal law of the land. There is therefore no conclusive evidence of embezzlement. The position in civil proceedings for}{\f36\insrsid13768418 wrongful dismissal is, however, that where a servant is guilty of a gross breach of good faith, his employer is entitled to dismiss him for dishonesty. Thus it was held in }{\f36\ul\insrsid13768418 SINCLAIR \endash VS- NEIGHBOUR [1967] 2 QB 279}{ \f36\insrsid13768418 that even though the }{\f36\insrsid1779981 p}{\f36\insrsid13768418 laintiff\rquote s conduct might not have been dishonest, it was nevertheless conduct of such a grave and weighty character as to undermine the relationship of confidence which should exist between master and servant. Accordingly, Court upheld the }{\f36\insrsid1779981 d }{\f36\insrsid13768418 efendant\rquote s dismissal of the }{\f36\insrsid1779981 p}{\f36\insrsid13768418 laintiff as justified.}{\f36\insrsid15935809 The }{\f36\insrsid1779981 p}{\f36\insrsid15935809 laintiff had in that case borrowed money from his employer, with knowledge that the employer would not approve of the borrowing and had repaid it into the till the following day.}{\f36\insrsid8978720 \par }{\f36\insrsid15935809 \par Applying the same principle to the instant case, Court is satisfied that even if the borrowing from Jurua may have been honest, for as long as it involved the company funds and Dr. Katabaazi\rquote s approval had not been sought, he was entitled to treat it as a case of embezzlement of the company funds. Court is also satisfied that as a result of transactions between the }{\f36\insrsid1779981 p}{\f36\insrsid15935809 laintiff and Jurua, the matter was reported to police and the }{\f36\insrsid1779981 p}{\f36\insrsid15935809 laintiff was arrested.}{\f36\insrsid15760522 He was later sent packing. Court is satisfied that the borrowing und ermined, and/or was capable of undermining the trust relationship between the }{\f36\insrsid1779981 p}{\f36\insrsid15760522 laintiff and the }{\f36\insrsid1779981 d}{\f36\insrsid15760522 efendant. It is that conduct of the }{\f36\insrsid1779981 p}{ \f36\insrsid15760522 laintiff that resulted in the termination of the oral contract of employment. The }{\f36\insrsid1779981 d}{\f36\insrsid15760522 efendant was in these circumstances j ustified to terminate the relationship. There was therefore nothing unlawful about it. I so hold.}{\f36\insrsid15935809 \par }{\f36\insrsid7809212 \par As to whether the }{\f36\insrsid1779981 p}{\f36\insrsid7809212 laintiff is entitled to the remedies sought, his first prayer is for special damages of Shs.29,250,000- being salary for the unexpired p eriod of the contract, that is, from 12/05/2003 to 12/08/2006. I have already made a finding that the contract was presumably for a fixed period, judging by the identity card issued to the }{\f36\insrsid1779981 p}{\f36\insrsid7809212 laintiff by the }{ \f36\insrsid1779981 d}{\f36\insrsid7809212 efendant.}{\f36\insrsid2380471 However, the terms were never reduced in writing. It is not known whether if they had been reduced to writing the parties intended to make provision for termination prior to expiry of the fixed period or whether they intended that either party be at liberty to terminate the contract upon a just cause.}{\f36\insrsid9321976 The law is that in the event of a wrongful termination by the employer, if the former course had been adopted, the }{\f36\insrsid1779981 p}{\f36\insrsid9321976 laintiff would have been entitled to recover as damages, the equivalent of remuneration for the balance of the contract period. If they had adopted the latter course, he would be entitled to recover as damages, the equivalent of remuneration for the period stipulated in the contract for notice. In view of the Court\rquote s finding that the }{\f36\insrsid1779981 d}{ \f36\insrsid9321976 efendant was justified to terminate the }{\f36\insrsid1779981 p}{\f36\insrsid9321976 laintiff\rquote s services, implying that it was justified to terminate his services in a summary manner whereby he could be dismissed without notice and/or a right to be heard first, Court is satisfied that he is not entitled to anything beyond what had accrued to h im during}{\f36\insrsid4945061 the period of employment with the }{\f36\insrsid1779981 d}{\f36\insrsid4945061 efendant. His claim for Shs.29,250,000- is therefore baseless. It is dismissed. }{\f36\insrsid7809212 \par }{\f36\insrsid4945061 \par As regards the claim for Shs.1,850,000-, there is evidence that he paid it through the police. There is also evidence that he paid it in an attempt to settle the matter with the }{\f36\insrsid1779981 d}{\f36\insrsid4945061 efendant out of Court. In consideration of that payment, the }{\f36\insrsid1779981 d}{\f36\insrsid4945061 efendant opted not to pursue the criminal case against him. By his own admission, the }{\f36\insrsid1779981 p}{\f36\insrsid4945061 laintiff had borrowed funds from Jurua. Jurua has denied the fact of borrowing. He says this was company money. The amount admitted by the }{\f36\insrsid1779981 p}{\f36\insrsid4945061 laintiff is Shs.2,380,000-. The amount paid by him through police assistance was Shs.1,850,000-, less than the amount which the }{\f36\insrsid1779981 d}{\f36\insrsid4945061 efendant was demanding from him. Taking it, as I must, that this was payment in response to the }{\f36\insrsid1779981 d}{\f36\insrsid4945061 efendant\rquote s claim against him, Court is unable to make an order that it be refunded to him. It was payment in acknowledgment of a debt.

\par \par All in all, Court is of the opinion that the }{\f36\insrsid91000 p}{\f36\insrsid4945061 laintif f was entitled, under the oral contract of employment, to payments that he had worked for. He has not made any claim for any unsettled payments. Therefore, he has no sustainable claim against the }{\f36\insrsid91000 d}{\f36\insrsid4945061 efendant.

\par }{\f36\insrsid2426583 \par I so hold. \par \par As to whether the }{\f36\insrsid91000 d}{\f36\insrsid2426583 efendants are entitled to the reliefs claimed in the counterclaim, it has prayed for Shs.2,950,000- being the alleged outstanding balance on the embezzled funds and Shs.2,000,000- which is still }{\f36\insrsid6030322 outstanding against the }{\f36\insrsid91000 p}{\f36\insrsid6030322 laintiff on the car loan scheme.}{\f36\insrsid2426583 \par }{\f36\insrsid6030322 \par From the evidence, the }{\f36\insrsid91000 d}{\f36\insrsid6030322 efendant maintained that the }{\f36\insrsid91000 p}{\f36\insrsid6030322 laintiff had embezzled Shs.4,800,000-. However, the }{\f36\insrsid91000 d}{\f36\insrsid6030322 efendant\rquote s evidence regarding}{\f36\insrsid14433868 that amount is, to say the least, wanting. Evidence in support of the claim for Shs.4.8m is sketchy. However, from the }{\f36\insrsid91000 p}{\f36\insrsid14433868 laintiff\rquote s ow n evidence, the total amount he had so far received from Jurua was Shs.2,380,000-. Jurua has denied ever extending a personal loan to him, implying that all the money allegedly borrowed from Jurua was the }{\f36\insrsid91000 d}{\f36\insrsid14433868 efendant\rquote s money. I believe it was.}{\f36\insrsid6030322 \par }{\f36\insrsid14433868 \par Plaintiff has adduced photocopies of alleged remittances of funds to Jurua, P. Exh. V. The first is dated 28/2/2003 for Shs.300,000-. The second is a clear replica of the first. In otherwords, the }{\f36\insrsid91000 p}{\f36\insrsid14433868 laintiff has attempted to account for Shs.600,000- using the very copies of the same document. The 3}{\f36\super\insrsid14433868\charrsid14433868 rd}{\f36\insrsid14433868 is a remittance purportedly made in June, to be exact 18/6/2003. By then he had already, been sacked. The 4}{\f36\super\insrsid14433868\charrsid14433868 th}{\f36\insrsid14433868 is dated 3/3/2003 for Shs.300,000-. Court is not convinced that the payments related to funds now claimed by the }{\f36\insrsid91000 d}{\f36\insrsid14433868 efendant from the }{\f36\insrsid91000 p}{\f36\insrsid14433868 laintiff. If the }{ \f36\insrsid1198173 p}{\f36\insrsid14433868 laintiff so wishes, he can recover it from Jurua as money had and received.}{\f36\insrsid14169852 As for the }{\f36\insrsid91000 d}{\f36\insrsid14169852 efendant, however, it s clear to me that after the payment of Shs.1,850,000- through the police, a balance of Shs.530,000- is still due and owing from the }{\f36\insrsid91000 p}{\f36\insrsid14169852 laintiff to make it a total of Shs.2,380,000- which the }{\f36\insrsid91000 p}{\f36\insrsid14169852 laintiff admits to have borrowed from Jurua. }{\f36\insrsid354603 This amount, that is, Shs.2,380,000- is decreed to the }{\f36\insrsid91000 d}{\f36\insrsid354603 efendant in the place of the Shs.4,800,000- claimed by them. Given that out of this amount Shs.1,850,000- has already been paid to the }{\f36\insrsid91000 d}{\f36\insrsid354603 efendant, there shall be an order for the payment of the balance in the sum of Shs.530,000- to the counter \endash claimant. I order so.}{\f36\insrsid14433868 \par }{\f36\insrsid11608615 \par As to the balance of Shs.2,000,000- on the car loan, the }{\f36\insrsid91000 p}{\f36\insrsid11608615 laintiff has not denied this indebtedness to the }{\f36\insrsid91000 d}{\f36\insrsid11608615 efendant. He took the vehicle, it had not been fully paid for and Shs.2,000,000- is still owing on it. I would decree this amount to the counter-claimant and I do so. The two amounts put together shal}{\f36\insrsid8729417 l attract interest of 20}{ \f36\insrsid11608615 % per annum from the date of filing the counter claim (21/6/2004) till payment in full. \par \par As regards general damages and costs, }{\f36\insrsid8729417 I }{\f36\insrsid11608615 note that the }{\f36\insrsid8729417 d}{\f36\insrsid11608615 efendant was responsible for the uncertain state of affairs regarding the nature of the }{\f36\insrsid8729417 p}{\f36\insrsid11608615 laintiff\rquote s employment with it. It was within its means to appoint the }{\f36\insrsid8729417 p}{\f36\insrsid11608615 laintiff on probationary terms or any other terms or else tell him when the going was still good that he had no place in the }{\f36\insrsid10494936 organization.}{\f36\insrsid11608615 \par }{\f36\insrsid10494936 \par It earns no credit for keeping him in suspense for close to two years. While the usual result is that the loser pays the winner\rquote s costs, in the circumstances of this case I have seen no justification for an award of general damages or costs to the counter \endash claimant on the counter-claim o r in the main suit. I therefore make no order as to damages. I order that each party bears its own costs. \par \par In the result, the }{\f36\insrsid8729417 p}{\f36\insrsid10494936 laintiff\rquote s suit against the }{\f36\insrsid8729417 d}{\f36\insrsid10494936 efendant is dismissed with an order that each party bears its own costs. \par \par The }{\f36\insrsid8729417 d}{\f36\insrsid10494936 efendant\rquote s claim in the counter-claim is allowed in part. A sum of Shs.2,530,000- is decreed to the counter-claimant as special damages as the balance on the car-loan scheme and the }{ \f36\insrsid8729417 p}{\f36\insrsid10494936 laintiff\rquote s un authorized borrowing. The decretal amount shall earn interest at the rate of 2}{\f36\insrsid8729417 0}{\f36\insrsid10494936 % per annum from the date of filing the counter-claim till payment in full. \par \par I so order. \par \par }{\b\f36\insrsid10494936\charrsid10494936 Yorokamu Bamwine \par J U D G E \par 9/5/2006}{\b\f36\insrsid10494936 \par }{\b\f36\insrsid14559439\charrsid14559439 \par }}