Zimbe & Another v Uganda (Criminal Appeal 26 of 1993) [1993] UGHC 85 (22 October 1993)

Full Case Text

#### THE REPUBLIC GF UGANDA

## IN THE HI^H COURT OF UGANDA AT KAMPALA

#### CRIMINAL APPEAL NO. -26 OF 1993

1. L.^Zimbe

2. Foods & Beverages Ltd. :::::::::::: Appellants

### Versus

Uganda Respondent

# BEFORE: THE HON. MR. JUSTICE G. M. OKELLQ JUDGMENT:

This is an appeal against t^e^convictions, sentence and orders made by a Magistrate Grade 1 of Mengo on 14/4/93 against the appeellant in Criminal c^se No. MK 15/92.

The complainant, Jonnes Guma was by a letter Ref: 113/SC/SA/8O of 1Q/7/80 (Exh. P iv) appointed a clerk with^the appellant company M/S Foods and Beaverages Ltd. The^ter^s and conditions of his employment was governed by the st^ff Regulations of the Appellant company as determined fey the Beard from time to time. The

complainant served with the appellant company for^eleven years. Jfis^duties included clearance and taking delivery on behalf of the company of goods imported by the appellant company.

By a letJer^Ref: ADM/2/15wof 31/10/90 (E^chpll) the complainant was intgrdicted following £ huge loss of sugar from thg appellant's General Dgpot. ^e was ^skgd to surrender the company's properties that^came to his possession on account of his employment and to keep out of the company's premises during the interdiction to facilitate investigation into the loss. He complied. By a subsequent letter of eyen reference d^ted 2/1/91 (Exh^P.lll), the complainant was^dismissed from the service of the appellant company. He was informed^through the dismissal letter that under regulation 39 of the staff Regulations, he was not entitled to any terminal benefits since his services were, terminated by a dismissal.

The complainant was accordingly not paid any wages for the period he was on interdiction nor any allowances whatsoever.

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Not amused by the manner in which he was dismissed from service, crupled with the failure to pay him his terminal benefits and other • dues, the complainant took up the matter with the Ministry of labour. Consequently , the appellant and its General Manager one Mr. L. Zimbe were jointly charred on five counts under the employment Decree 4/75:-

(a) On counts 1, 2 and 3, they were charged with failure to pay wages and allowances for the months of November and December 1990 to the complainant contrary to section *yj* (a) of the Employment Decree 4/75. This offence is punishable under section 62 (1) of the Decree.

(b) On count 4, they were charged with failure to give notice, or payment of shs. 165,750/= in lieu of the Notice before termination contrary to sections 24 (2) (e) and (5) of the Decree. This offence is punishable under section 62 (4) of the same Decree 4/75•

(c) On count 5, they were charged with failure.to give leave for the year 1 or payment of shs. 55,250/='^ in"1-lieu thereof to the complainant contrary to section 42 of the Decree.

The General Manager was acquitted on all the counts. The appellant was acquitted on counts 3 and 5- Count 4 was struck out on a preliminary objection by the defence. The appellant was therefore convicted only on counts 1 and 2. Subsequently, it was sentenced to pay a fine shs. 1000/=. It was also ordered to pay to the complainant wares J and allowances as under

- (1) Two months wages in lieu of Notice. - (2) Half salary of shs. 12,375/= per month for the months of November and ?ecember 1990- - (3) Housing Allowance at 100% of the complainant's monthly salary for the two months of November and December 1990.

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(4) Terminal benefits'amounting to Uganda shs 1,17,000/= Under Regulation 3^ of the App: ..lant's staff Regulations.

The total amount which the Appellant was ordered to pay to the was. Uganda shs, 1,341,450/=.

- The -1-nt n ow appealed to this court against - (1) the convictions on counts 1 and 2. - (2) . sentence of a fine of shs. 1000/= - (3) the orders to pay wares and allowances ^ersiaa1 benefits all amounting to Ug. shs. \*1,p4l,450/=.

Three grounds were given for the Appeal:- .

- (1). that the learned Magistrate Grade 1 erred in law in so far as he convicted the appellant of the offence of failure to pay wages namely Half salary for the months of November and December 1990; two months wares in lieu of notice before termination and housing allowance for the two months.of. November and December 1'990 (being 100\$ of the complainant1s monthly salary) when the wages due were not proved beyond reasonable doubto - (2) that the learned trial Magistrate Grade 1 erred in law in so far as he ordered the appellant to pay terminal benefits when the same were not proved nor could be supported by law. - (3) That the learned Magistrate Grade 1 erred in la"' in -'chat in convicting the -l T and ordering the la.'"' :r to pay terminal benefits and a fine of Ug. shs. 1000/= as he did not apply the correct- standard of proof in criminal cases, namely proof of ingredients of the-charges beyond reasonable doubt.

The reneral complaint in the above grounds as I understand them is that there was no sufficient evidence before the lower court to prove beyond reasonable doubt the essential elements of the offences to .-Justify the convictions and the orders that followed. A glance at the record of the proceedings of the trial court shows that the prosecution called and relied on the evidence of the witness - (PW1). The appellant contend that the evidence of this witness does not prove beyond reasonable doubt the'essential elements of the offonoco of which the appellant was covicted.. As a first appellant court, this court is under a duty of subject' the evidence on record to a fresh and exhaustive scrutiny and to make its own finding of facts on the issues while of course making allowance for the fact that it had not seen the witnesses as they testified. (see Pandya v. V. (1957) EA 330)

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With the above in mind, I shall now proceed to consider the merits of the appeal ground by ground following the order in which they were framed and agrued before me. I start with ground No. 1. It is that the learned Magistrate Grade 1 erred in law in so far as he convicted the Appellant of the offence of failure to pay wages namely, half salaries for November and December 1990, two months wages in lieu of Notice and bousing allowance for two months (being 100\$ of the complainant monthly salary) when the wages due were not proved beyond reasonable doubt.. Regulations, this entitlement was not proved beyond reason doubt.

The gist of the argument of counsel for the appe lant in fehis ground 1 is that while the appellant admits that the complainant was employed by the appellant, the latter denied that the appellant owes the complainant wages and allowances as ruled'by the trial Magistrate. That if wages and allowances were due from the appeellant to the complainant, they were aot proved beyond reasonable doubt. That even if the complainant were entitled to half salary and allowances under the Appellant's staff Regulations, this entitlement *was* not proved beyond reasonable doubt. The staff Regulations were not tendered in evidence and therefore do not form part of the court record. He submitted that the Wages and Allowances claimed by the complainant were merely speculative.

He attacked the evidence of the complaint (PW1) as contradictory and unsatisfactory. He referred to pages 10.11o of the proceedings where the complainant testified that during the time of his interdiction, he was entitled to his fall salary and named allowances. Counsel further referred to page 12 of the proceedings where while under-cross-examination the complainant expressed doubt about the allowances he was entiled to.

To the above argument, counsel for the state replied that the trial Magistrate was -justified in making the findings which he did because there was the unchallenged evidence of PW1 on pages 10-11 of the proceedings that he was entitled to his full salary and allowances during his interdiction. He emphasised that the staff Regulation which Regulated the terms.and conditions of employment of the complainant was tendered in evidence. That under those Regulations the complainant was entitled to half his salary and allowances during his interdiction and to his terminal benefits on termination of his services.

The Complainant' evidence on pages 10-11 of the proceedings referred to by both counsels road as follows:-

"-During the time of interdiction, I was not paid anythin\*? neither allowance or salary. I was entitled to salary '18,750/- transport 36,000/- lunch allowance 15,000/- housing allowance was 100% of the salary.

On page 12 of the proceeding the complainant while Under cross-examination said:-

''The allowance I was netting are on record at head office. Some I am not sure about". &gt; I

On the above evidence, the trial Magistrate had this to say on pares

2-3 of his judgment.

"Aa\*to whether the complainant was paid his due wages-, DW1 testified that the accused persons never paid him anything since he received the interdiction letter, yet .according to the 2nd Accused's staff Regulations R. 36 (iii) an interdicted employee shall receive half of his salary. Section 25 (4) of the Decree (Employment Decree 4.('75) provides that termination under 552 (and 22 shall be without prejudice to any acrued rights or liabilities of either party under the contract. I find that both accvseds failed to pay not only the half salary monthly entitlement during the period of interdiction but also failed to pay the terminal benefits which had accrued to the complainant."

Counsel for the appellant attacked the above findings of the trial magistrate as not supported by evidence,

With respect, there is substance in that attack. One of the established principle rules of our criminal law is that to secure a conviction, the prosecution must prove the guilt of an accused person beyond reasonable doubt. All the essential element of the offence charged must be so proved. In this case, it must be proved

(1) That wacres and or allowances were due from the appellant emple-yer to the complainant employee for the month of November arid December 199®\*>

(2) That there was a demand by the complainant for payment of these wages and of allowances.

(3) That there was a refusal by appellant employer to pay the due wages and or allowances. (4) that there was no reasonable cause for the refusal.

../2.

In this case, the above evidence of P',71 regarding. his entitlement to the wages and allowances during his interdiction is not satisfactory. It is contradictory. In his examination in-chief, he asserted that he was entitled to his full salary, transport allowance, lunch allowance and 'housing allowance. But, when he was cross-examined on these, he expressed doubt about the allowances he was entitled to.

Secondly, he did not state in his evidence the basis of his entlement. He did not disclose how he became entitled to his full salary and the named allowances when he was on interdiction. He did not state whether the terms and conditions of his employment entitled on interdicted employee to his full salary, transport allowance, lunch allowance and housing allowance. To that extent the evidence was wanting in material particulars. It was unsafe to find from s"ch evidence that the complainant was entitled to a particular wage or allowance.

I am not surprised that the trial Magistrate did not believe that evidence. He did not find that the complainant was entitled to his full salary, transport allowance, lunch allowance and housing allowance while he was on interdiction, Instead the trial Magistrate found that the complainant was entitled to half his salary and housing allowance while he was on interdiction. He based his finding on r. *36* (iii) of the. Appellant ' s staff Regulations which regulated the terms and conditions of the complainant's employment with the appellant. But this finding too was not supported by the evidence on record. The staff Regulation on which the trial Magistrate placed reliance did not form part of the evidence before the court. 14 was not tendered in evidence.

Counsel for the Respondent claimed that he had tendered the staff Regulation in Court at the trial. Unfortunately this claim is not borne out by the record of the proceedings. The record of the proceedings does not reflect receipt of that document in evidence. I am entitled to presume that the record of the court proceedings was accurately recorded, {■sae S.78' §A Paulo Osinya vs, R. (1959) EACA 353)» For that reason, I find that the

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staff Regulations were not tendered in evidence. It therefore did not form part of the evidence before the court.

As we are all aware, a Judge or a Magistrate must decide his case only on the evidence before him and the relevant law. To that extent it is my view that the trial Magistrate erred in considering the.st-iff Regulations when it did not form part of the evidence before .him. He considered »ejetraneoUS matter. Thi.s occasioned a miscarriage of justice . because without that extraneous. evidence, there was no evidence from which the trial Magistrate could have found that the complainant was entitled to bis half salary and housing allowance while on interdiction.

There was therefore no sufficient evidence to prove that some wages and allowances v\*ore due from the appellant to the complainant during his interdiction. Ground 1 of this Appeal must therefore s^ceed.

Ground 2:- This o-found is that the learned Magistrate Grade 1 erred in law in so far as he ordered the appellant to pay terminal benefits when the same were not proved nor could be. supported by law. The trial Magistrate had further found that the appellant also failed to pay the complainant's terminal benefits. Consequently he ordered as follows:-.

n It is further ordered that the complainant Guma Jonnes -be paid his terminal.benefits as stipulated under r. 31 of the staff Regulations M/S. F & B LTD? staff Regulations.are part of the contract. The complainant is therefore entitled to shs. 1,217,700/= for his terminal benefits".

Counsel for the appellant attacked the above order on the ground that the •terminal benefits were not proved. I share that view. Section 25 (5) of the Employment Decree 4/75 does protect the employee's right to.accrued benefits on termination. But the accrued benefits must be proved beyond reasonable doubt.

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In the instant case the prosecution never led any evidence to prove type of terminal benefits which the complainant was entitled to. The trial Magistrate went ojit on his v/ay to consider the staff Regulations to determine the type of terminal benefits the Complainant was entitled to. He relied on r. 3^ of the staff Regulations because ''Staff Regulations are part of the contract"..

With respect, this is wrong. As I had said earlier, a Judge or Magistrate has to decide the case before him purely on the evidence before him and the relevant law. He should not take into consideration extrerieous matter. In this case, the staff Regulations, as had already been pointed out' " earlier, in this -Judgment, did not form part of the evidence before the court. It was not tendered in evidence. It was therefore not prop.'er for the trial Magistrate to have relied on it. This occasioned a miscarriage of justice because without it the trial Magistrate had no way of determining the terminal benefits to which the complainant was entitled. The order was therefore wrongly made. . Ground 2 of this appeal must also succeed.

The next is a Ground No. 3\*♦ I\* is that the -learned magistrate Gradel erred in law in that in convicting the appellant and ordering the latter to pay terminal benefits and a fine of Ug. shs. 1000/=; as he did not apply the correct standard of proof in criminal cases, namely proof of ingredients of the charges beyond reasonable doubt. The appellant then prayed that convictions be quashed, sentence and orders set aside and the appellant be acquitted.

There is no useful purpose for me to deal with this ground because I will only be repeating myself. All the issues raised in this ground have already been considered in grounds 1 and 2 above. The appeal must be allowed for reasons given above. In.the end it is ordered that the convictions of the appellant in counts 1 ond 2 be quashed, Consequently

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the resultant sentence and orders are set aside. The Appellant is acquitted on both counts for lack of proof.

^. M. OKELLO

JUDGE

22/10/95 Mr. Naster Byamu^isha for the Appellant. 5\*00 p.m. The Complainant present No body for the state G. Madundu Court Clerk.

Court; Judgment delivered.

G. M. OKELLO

**JUDGE.**

22/10/93-