[2007] UGCA 73

### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### CORAM: HON JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ HON. JUSTICE A. TWINOMUJUNI, JA. HON. JUSTICE C. N. B. KITUMBA, JA.

# CIVIL APPEAL NO. 49 OF 2005

#### BANK OF UGANDA ::::::::::::::::::::::::::::::::::: $10$

# **VERSUS**

### BETTY TINKAMANYIRE ::::::::::::::::::::::::::::::::::::

[Appeal from the judgement of the High Court of Uganda at Kampala dated 7/3/2005 (Okumu-Wengi, J.) in Civil Suit No. 398 of 20031

# JUDGEMENT OF KITUMBA, JA.

Betty Tinkamanyire, successfully sued the Bank of Uganda in Civil Suit No. 398 of 2003 for wrongful termination of her employment. The facts of the case may be stated briefly as follows:

Betty Tinkamanyire to be referred to hereinafter as, the respondent, was employed by the Bank of Uganda hereinafter to be referred to as the appellant. On 21^st August 2002, a bulletin Exhibit P5 was posted on the local area network. The bulletin stated inter alia:

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"Staff who are incompetent, poor time managers, (particularly late coming), alcoholics, thieves, fraudsters, and those who are insubordinate, will no longer be tolerated in the Bank."

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$15$

It was signed by the Governor of the appellant. The letter of the same date which was produced in evidence as Exhibit P3 signed by the Deputy Governor of the appellant terminated the respondent's employment with the appellant. The letter stated that at its 264^th meeting, which was held on 16/8/2002, the Board of Directors had resolved to retire the respondent from service with immediate effect. No reasons were given for her termination of service. She was offered three months salary in lieu of notice, commutation of annual leave and pension cash commutation. She was advised to sort out her outstanding financial obligations with the legal counsel.

The respondent sued the appellant contending that her purported involuntary retirement was wrongful, null and void and that she should be reinstated in her employment. In the alternative, she sued for general, special, exemplary and punitive damages, interest and costs of the suit. It $15$ was her case that she had been a good employee and deligently performed her duties to the satisfaction of the appellant as evidenced by her appraisal reports. She further contended that her involuntary retirement was in violation of the terms and conditions of service and in breach of the rules of natural justice. It was, further, her case that by the purported 20 involuntary retirement she lost reputation as she was put in the category of members of staff who are incompetent, poor time managers, thieves, fraudsters and insubordinate who were mentioned in the Governor's bulletin (Exhibit P5). The respondent was the only witness who testified in court in support of her case.

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The appellant denied liability. It was the appellant's case that the respondent's employment was lawfully terminated in accordance with the terms and conditions of service. The appellant called only one witness

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Eva Mwenabirinde, Dw1, who was the Head of the Human Resources Department in the appellant bank.

During the hearing of the case the following documents were admitted in evidence:

- $1.$ Appointment letter dated 24/9/1992 Exhibit P1 - 2. Bank of Uganda Administration Manual Exhibit P2. - $3.$ Letter of retirement dated $21/8/2002$ Exhibit P3. - 4. Bank of Uganda Terms and Conditions of Service and staff Regulations Exhibit D1.

Two issues were framed:

1.

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$10$

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#### Whether the plaintiff's employment was lawfully terminated.

#### $2.$ If not what are the reliefs.

The learned trial judge answered the first issue in the negative. On the second issue the learned judge ordered the appellant to pay the following:

- Special damages for loss of earnings Ug. Shs. 240,425,000/-1. - $2.$ General damages Ug. Shs. 30,000,000/- - $3.$ Punitive damages Ug. Shs. 20,000,000/- - Interest at 26% on 1, 2 and 3 with effect from August 2002 4. till payment in full. - Costs of the suit. $5.$

The appellant was dissatisfied with the learned trial judge's judgement and orders and has filed its appeal to this Court on the following grounds:

The learned trial judge erred in law and in fact in holding 1. that the termination of the plaintiff's employment was without notice or payment in lieu thereof and was unlawful.

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$10$

$15$

- $2.$ The learned trial judge erred in law and in fact in holding that the rules of natural justice were applicable to termination of employment by notice. - The learned judge erred in law and in fact in holding that $3.$ in termination of employment reasons for termination are $\hat{\mathcal{L}}_{\text{max}}$ required to be given and the relevant provision providing for termination terms should be cited.

In the alternative to Grounds 1 to 3 above if the termination of the plaintiff's employment was unlawful which is not admitted then:

- $4.$ The learned judge erred in law and in fact in awarding the plaintiff's lump sum of Ug. Shs. 240, 425, 000/- as damages without evaluating the evidence adduced to prove these damages and/or breaking them down into the proven constituent parts. - $5.$ The learned judge erred in law and in fact in awarding the plaintiff her salary for the forty four (44) months period between the date of her termination being the $21^{st}$ August 2002 till the date she would attain retirement age being April 2006 the sum awarded being Ug. Shs. 179,740,000/-. - The learned judge erred in law and in fact in awarding the 6. plaintiff sums for her annual bonus, health club entitlement and the annual leave for the (44) months period from the date of her termination being the $21^{st}$ August 2002 till the date she would attain retirement age April 2006, the sum awarded being being $U_{\varrho}$ . Shs. $60,685,300/-$ . - The learned judge erred in law and fact in awarding the 40 7. plaintiff general damages of Ug. Shs.30,000,000/- and punitive damages of Ug. Shs. 20,000,000/-.

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#### 8. The learned judge erred in law and in fact in awarding interest on items 5, 6 and 7 above from August 2002 till payment in full.

At the scheduling conference the following facts were agreed upon; -

- *a) The respondent was appointed to the Appellant's* employment on the 24^th September 1992 and remained so employed until the $21^{st}$ August 2002. - b) The Respondent employment was governed by the Bank of Uganda Terms and Conditions of Service and Staff Regulations. - *c) The Respondent's employment was brought to an end* by a letter dated $21^{st}$ August 2002. - d) As at the $20^{th}$ September 2002, the Respondent's entitlement on termination amounted to Ug. Shs. $36,502, 403$ whilst her total indebtedness to the appellant amounted to Ug. Shs. $37,011,239$ which *left her net indebtedness to the Appellant at Ug. Shs.* $508.831/=$ - *e) The Respondent was entitled to a monthly pension after the 25% commutation of Ug. Shs.259,388/=.* - f) *Accordingly the Respondent's indebtedness would be* set off from 2 months pension and she is entitled to a pension as from the $20^{th}$ November 2002 to date.

During the hearing of the appeal counsel for both parties argued the grounds of appeal in the following two batches. They argued grounds 1, 2 and 3 jointly as the issue in the three grounds was whether the respondent's employment was lawfully terminated and grounds $4, 5, 6, 7$ and 8 together which four grounds concerned with remedies available to the respondent. I shall handle the appeal in the same order.

On the first batch, Mr. Masembe Kanyerezi, learned counsel for the appellant, contended that the appellant lawfully terminated the 35

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$10$

respondent's employment. He submitted that the letter of retirement Exhibit P3, indicated that the respondent was entitled to three months salary in lieu of notice. It was his argument that Exhibit P3 had to be read together with Exhibit D1, which are the appellant's Terms and Conditions of Service, para 4 which provides for three months notice for termination of service of an employee in the respondent's category. When her benefits were calculated, her indebtedness to the appellant exceeded her entitlements. The learned judge was, therefore, wrong to say that the respondent received no payment in lieu of notice.

$5$

$10$

Counsel contended that the respondent services were terminated with notice according to the terms and conditions of service. He submitted that though Exhibit P3 contained the word retirement she was not forcibly retired early. Counsel argued that the respondent had not reached the retirement age and none of the heads of forced retirement applied to her $15$ as specified in the Administration Manual Exhibit P.2. These are medical or sick leave for a continuous period of six months, public interest and non-performance. In case of non-performance the employee must have been not promoted for five years. Before such retirement that employee must be subjected to a detailed proficiency test and in case she or he fails, 20 the employment automatically ends. In that case no notice applies and one does not get a pension until one is 55 years old. On the contrary according to evidence of the respondent herself and that of DW1 the respondent performance was good. Counsel implored court to examine the content of Exhibit P3 and not only the form. Exhibit P3 provided the $25$ following:-

- $1.$ Three months payment of salary in lieu of notice. - Immediate pension and $2.$ - Leave commutation and immediate payment thereof. 3.

Counsel contended that the rules of natural justice do not apply to termination of employment with notice. In his view, the learned judge was wrong to hold so. He argued that the legal position is that the employer is free to terminate the services of the employee as long as the required notice is given. In such a case the employer is not bound to cite any relevant term pursuant to which an employee's services have been terminated. In support of his submission he relied on the statement by Lord Reid in Ridge Vs Baldwin (1963) 2 A. U. E. R. 66) at page 71. G

$10$

$15$

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"------------------------------------any time and for any reason or for none $at$ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . **...........................** So the question in a pure case of master and servant does not at all depend on whether the master has heard the

- Counsel contended that the person having the power of dismissal need 20 not have anything against the officer, he need not give any reason. He submitted that the principles of natural justice apply to situations where the employment is of a public nature. In support of that submission he relied on Barclays Bank of Uganda Vs Godfrey Mubiru Civil Appeal - No. 1 of 1998 S. C. He prayed court to allow the appeal. 25

servant in his own defence".

Mr. Okallany, learned counsel for the respondent, supported the learned trial judge's finding. He contended that the observation and reasoning in his judgement were correct according to the law.

Counsel submitted that the respondent's removal from the office was unlawful. In his view, it was forced retirement. Exhibit P3, which was addressed to her talked of her "retirement" and not 'termination'. Exhibit P9 which was a memorandum from the Human Resources Department showing her benefits and indebtedness to the appellant bank was headed retirement. Counsel argued that the appellant was estopped by section 114 of the Evidence Act (Cap 6) to change the written documents and say that the respondent's services were terminated.

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- Counsel submitted that the appellant's retirement of the respondent was $10$ malicious and did not follow the proper procedure as laid down in Exhibit D1. According to counsel failure to follow the laid down procedure rendered the appellant's action a nullity. - Mr. Okallany argued that though the appellant did not plead in its written $15$ statement that the respondent was retired from office DW1 tried to adduce evidence that it was so.

On principles of natural justice counsel submitted that the respondent was entitled to hearing before retirement which she was not given. He argued $\overline{20}$ that the appellant is a public institution according to sections 4 $(2)$ , 29,32 and 49 of the Bank of Uganda Act.

The learned judge held that the appellant tried to force the respondent in early retirement from employment without following the proper $25$ procedure. He held that the respondent was summarily dismissed. She was offered three months salary in lieu of notice. In actual fact she never received that money. She was not heard in her defence before dismissal was affected.

The law is well settled that an employer has the right to terminate the services of an employee so long as that is done in accordance with the terms of the of the contract. In **Godfrey Mubiru Vs Barclays Bank of Uganda Ltd.** supra Kanyeihamba, JSC at p. 15 of his judgement states thus on that point:-

> "In my opinion, where any contract of employment, like the present, stipulates that a party may terminate it by giving notice of a specified period, such contract can be terminated by giving the stipulated notice for the period. In default of such notice by the employer, the employee is entitled to receive payment in lieu of notice and where no period for notice is stipulated, compensation will be awarded for reasonable notice which should have been given, depending on the nature and duration of employment. Thus in the case of Lees v Arthur Greaves Ltd. (1974) I. C. R. 50. It was held that payment in lieu of notice can be viewed as ordinary giving of notice accompanied by a waiver of services by the employer to terminate by notice. Indeed, in the English case of Rex Stewart Jaffries Parker Ginsberc Ltd v Parker (1988) I. R. L. R.,483 at p. 486, it was held that notwithstanding statutory or employment contract provisions, if the parties agree upon a payment in lieu of notice for a period shorter than stipulated, employer is entitled to terminate the contract of employment by offering the payment in lieu of notice. The right of the employer to terminate the contract of service whether by giving notice

$10$

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$15$

or incurring the penalty of paying compensation in lieu of *notice for the duration stipulated or implied by the contract* cannot be fettered by the courts. The employee is only entitled to compensation only in those cases where the period of service is fixed without permission for giving notice."

It has been rightly pointed out by counsel for the appellant that in case of termination with notice of her service the respondent had to be given inter alia, three months notice or salary in lieu thereof. Further that the $10$ respondent did not qualify for retirement provided for by section 3.4 of exhibit P2. Counsel has vehemently argued that the respondent's services were terminated in accordance with Clause 4 of the Terms and Conditions of Service (Exh. D1).

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We agree that the appellant was at liberty either to give the respondent a three months notice in writing terminating her services or money in lieu. According to the terms of the contract between the appellant and respondent *"termination of services"* and *"retirement from services"* have different meanings. The conditions to be fulfilled before either of them is accomplished are different. Needless to labour the point that the appellant's top managers were aware of that. There is, therefore, no plausible reason why the letter that terminated the respondent's services was headed as retirement. It is important at this juncture to quote the letter that appellant's counsel argues lawfully terminated the respondent's services.

# "Ref: Pf/02784/92 RETIREMENT

At the 264^th Meeting on Friday 16^th August 2002, the Board of Directors resolved to retire you from the services of the Bank with immediate effect.

On retirement you will be entitled to; -

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$15$

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- 1. Three (3) months salary payment in lieu of notice. - 1. Commutation of all your annual leave accrued but not taken to date. - $2.$ A pension cash commutation of 24\$ plus a monthly pension all calculated based on the Bank of Uganda Retirement Benefits Scheme rules, of which you are a member. - You will also arrange to settle all your outstanding 20 obligations with the Bank as shall be agreed with the Legal Counsel. By a copy of this memo, Director Human Resource is being asked to finalize all necessary arrangements for your smooth disengagement.

On behalf of the Board management and all staff, I wish you a happy and active retirement.

Louis Kasekende (PhD) DEPUTY GOVERNOR (underlining mine)

Exhibit P3 was written by no other than the Deputy Governor of the appellant but was headed as retirement. In reference to Exhibit P3 the Director of Human Resources of the appellant wrote to the respondent a 35 memorandum dated $20^{\text{th}}$ September 2002 (Exhibit P9) in which her entitlements and indebtness were set out. This memorandum was headed "Retirement"

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It has been argued by appellant's counsel that the substance rather than the form of exhibit P3 should be considered. With due respect, I disagree. It has been correctly submitted by counsel for the respondent that the law does not allow a document to be explained by oral evidence. See sections 93 and 94 of the Evidence Act, which provide; -

"93 - When the language used in a document is, on its face, ambiguous or defective, evidence may not be given on facts which would show its meaning or supply its defects.

94 - When language used in a document is plain in itself, and when it applies accurately to existing facts, evidence may not be given to show that it was used in a particular sense".

Additionally, there is evidence on record showing that the respondent was a good employee and performed her duties to the satisfaction of the appellant. The respondent's testimony and that of the appellant's only witness DW1, confirm that. All those show that the appellant had no reason to dismiss the respondent summarily from service. The appellant had the liberty to retire the respondent but this had to be done according to the terms of employment. The appellant made a futile attempt to retire the respondent which as the learned Judge put it amounted to summary dismissal.

The submission by appellant's counsel that the relationship between the two parties to this appeal was that of master and servant, therefore, the appellant was at liberty to terminate the respondent's services without any hearing is not entirely correct. The appellant had to follow the laid down procedure. According to paragraph 10 of the Terms and Conditions of Service a member of staff who is aggrieved has the right to seek audience with the Governor of the appellant. This to me implies a right to be heard

$10$

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when a member of staff seeks for it. See **Malloch v A Bardeen** Corporation [1971] 2 ALL ER 1278. In that case the House of Lords held that the right of a person to be heard in his/her defence was the most elementary protection of all. Where a statutory form of protection was less effective all did not include it the court should imply such a right. In the instant appeal, the respondent request for hearing/review by the letter to the Governor Exhibit P6.

笋 It should be noted that Bank of Uganda is a public institution provided for under articles 161 and 162 of the Constitution and established by the $10$ Bank of Uganda Act (Cap 51). There are laid down procedures which the appellant had to follow. When she received Exhibit P3, she made an appeal to the Governor of the respondent as she was entitled to do according to para 10 of the Terms and Conditions of Service However, the Governor did not make an attempt to review her case or even to $15$ explain to her that her services were terminated and that she was not retired.

She testified that she had seen exhibit P5 but did not see that she fell in the mentioned category. In the same week she travelled to West $\overline{20}$ Germany to under study the Human Resource Department of the German Bank. She travelled on 25^th February and on her return she was surprised to find someone sitting in her office. The continuation of her testimony is as follows:-

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"When I inquired from my secretary she told me she had been instructed to receive a new Boss. I was advised to see Ag. Director Human Resources. When I talked to Mrs. Eva Mwinebirinde she told me she also did not know what was happening as she had been instructed to

receive my replacement by the executive Director Administration. That was Mr. Kahenano,. Mr. Nyeko was the one in my office. Eva told me to see the EDA (Kahenano) who handed to me a letter to open and read in his presence. The letter was retiring me. Signed by Dep. Governor dated 21/8/2002 the same date of the other memo. The letter did not say why but just stated that I was being offered early retirement with immediate effect. EDA told me he was also ignorant how such a thing could have come about."

The audit report, which was, carried out at the request of the Governor of the appellant also show that the respondent's termination of service was malicious. The report reads in part; -

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### "(a) Betty Tinkamanyire

This case seems to have generated most of the heat with certain sections of the Bank blaming the leadership in HR department for instigating it out of malice to get her out of the bank. The leadership in the HR department concurs that this case generated the heat but denies responsibility for the allegations that may have lead to the dismissal. A check on her file indicates that she had had a commendable work record as an outstanding performer and there was no indication she had been warned of any shortcomings."

The proper procedure for retiring her should have been followed even if it was the Board of Directors, which had decided on her retirement. The appellant is a public institution. It is expected to follow its laid down 30 procedures and not to use intrigues to terminate services of its members of staff as was obviously the case in the present appeal. The miserable attempt by DW1 to explain that she was retired because of stagnation was most importantly not pleaded and not supported by any evidence. On the contrary, the respondent was an excellent performer. From the evidence 35 on record, it is obvious that the appellant attempted to retire the

respondent from service out of malice. I am in agreement with the trial judge that the respondent was a public officer who is protected by article 173 of the Constitution from victimisation, discrimination or removal from office without just cause. The respondent's removal from service was unlawful and oppressive.

Grounds 1, 2 and 3, therefore, fail for lack of merit.

I now turn to grounds 4, 5, 6, 7 and 8, which are the remedies. Mr. Masembe Kanyerezi for the appellant contended that the learned trial judge erred in law to award to the respondent special damages for loss of $10$ earnings and other losses to the tune of shs. 240,425,000/-. He argued that there was no evidence to justify such an award. According to counsel in case of a wrongful dismissal where the employee's employment could have been terminated by notice, the award of damages should be limited to what the employee should have been paid in lieu of 15 notice. The award of damages to the respondent for 44 months could only have been made if she was employed for a fixed term, which was not the case. He argued that the awards of Shs. 30,000,000/- general damages and shs.20,000,000/ $=$ punitive damages had no basis. Regarding interest counsel rightly submitted that the respondent was not 20 entitled to interest on general damages before judgement.

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Counsel for the respondent disagreed. He supported the learned trial judge on all the awards. He submitted that was entitled to the money she would have earned until her retirement. He argued that the learned judge correctly assessed general damages at shillings 30,000,000/=. He submitted that the judge was right to award the respondent punitive damages of $20,000,000/$ = because the appellant terminated her services harshly and out of malice. He argued further that appellant withheld her

Counsel also supported the judge's award of interest on pension. damages.

I have carefully perused the record and listened to the submissions of both counsels. In paragraphs 3 and 10 of her plaint the respondent claimed for special damages/compensation in the sum of Ug. shs. $240,425,200/$ = (Two hundred forty million four hundred twenty five thousand two hundred shillings). The particulars of special damages/compensation were set out in paragraph10 of her plaint.

$5$

- In her evidence she testified her benefits were what in terms of salary, $10$ annual leave, annual bonus and health club entitlement. Most of these were contained in Bank of Uganda Administration Manual Exhibit P2 which was admitted in evidence at the beginning of hearing of the case. The respondent testified that she was 52 yeas old. She had tried to find another job without success. None of the items of special $15$ damages/compensation were disputed by the appellant. I am of the considered opinion that the respondent pleaded and proved special Regarding general damages the respondent was rightly damages. awarded these damages. She was a senior member of the appellant's staff 20 and her services were terminated wrongfully. She was greatly embarrassed and inconvenienced. She was classified among the people who were alcoholics, late comers and fraudsters who were mentioned in Exhibit P.5. - In Kiyingi v National Insurance Corporation [1985] HCB 4 where a 25 senior member of staff services were wrongfully terminated the court awarded him general damages for embarrassment and inconvenience. The above case is similar to the appeal before this court and though it is

not binding on this court, I respectfully follow it as I find it to be good law.

The appellant wrongfully terminated the respondent's service in a high handed, harsh and arbitary manner. I am in complete agreement with the learned judge that the conduct of the appellant deserved the award of punitive damages against the Bank of Uganda. However, I am of the considered view that the award of shillings twenty million was on the low side. Unfortunately, the respondent did not cross-appeal to this Court to have the amount of punitive damages increased.

I would uphold all the awards given by the learned trial judge

- Special damages for loss of earnings Shs. $240,425,000/=$ 1. - $2.$ Special damages Shs.30,000,000/ $=$ - $3.$ Punitive damages Shs.20,000,000/ $=$ - Money in lieu of notice Shs. 12,440,000/ $=$ $4.$ - The respondent would be entitled to receive her pension in $5.$ full. - Costs of the suit. 6. - 20

$15$

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$10$

7. Interest on all awards at 26% from the date of judgement till payment in full.

In the result I would dismiss the appeal with costs to the respondent in this Court and in the court below.

Dated at Kampala this .................................... 25

> CHIG Crembs C. N. B. Kitumba JUSTICE OF APPEAL

## THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### CORAM: HON. JUSTIE L. E. M. MUKASA-KIKONYOGO, DCJ. $\mathsf{S}$ HON. JUSTICE A. TWINOMUJUNI, JA. HON. JUSTICE C. N. B. KITUMBA, JA.

## CIVIL APPEAL NO. 49 OF 2005

BANK OF UGANDA...................................

#### **VERSUS**

#### BETTY TINKAMANYIRE.................................... $15$

### [Appeal from the judgment of the High Court of Uganda at Kampala dated 7/3/2005 (Okumu-Wengi, J.) in Civil Suit No. 398 of 2003]

## JUDGMENT OF HON. JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ.

I have had the benefit of reading in draft the lead judgment of my learned sister Kitumba, JA and I agree with it in entirety. This appeal is without merit. $It$ 25 must fail. I have nothing useful to add except perhaps to briefly comment on two matters, namely; the finding the mode of termination of the respondent's $on$ contract of service and the awards of damages given to

her by the trial Court. 30

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$\mathbf{1}$ On termination, the law and principles governing the relationship or contracts of service between master and servant or employer and employee are well settlecl. They have also treen enunciated by the courts in a number of cases including: -

Godfrey Mubiru Vs Barclays Bank of Uganda Ltd. C. A. No. 1 of 1998 SC U.

o

o

Ridge Vs Baldwin (1963) UER 66 at p. 71. G Lees Vs Arthur Greaves lLtdl 1974 I CR 5O and Steward

Jeffries Parker Ginsbeth Ltd Vs Parker (1988) I RLR 483. t0

The gist of the holdings in the aforesaid cases is to the effect that the right of the master/employer to terminate the contract of service is not disputed, provided the laid down procedure and the terms and conditions of the contract are complied with. 5

Similarly, in the instant case the appellant was at liberty to terminate the respondent's contract but in compliance with the terms. As the evidence stands on record I agree with Kitumba JA that the appellant was in breach of the terms of the contract. It acted 20

contrary to the terms relating to "termination" when it purported to terminate the respondent's contract by way of summary dismissal. This point has been ably dealt with by Kitumba JA in her lead judgment.

We cannot accept the argument that the respondent's contract of service was properly terminated by notice. She could not be adequately compensated by only payment of what she would have earned for that period. As indicated by the letter of termination the respondent's contract was terminated by way of retirement under Clause 4 of The Terms and Conclusions of Service Exh D.1.

lt reads as follows: - 15

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"Reft Pflo27a4l92 RETIREMENT

At the 264th Meeting on Friday L6th August 2OO2, the Board of Directors resolved to retire you from the services of the Bank with immediate effect. l0

On retirement you will be entitled to; -

- 1 Three (3) months salary payment in lieu of notice. - 1 Commutation of all your annual leave accrued but not taken to date. - 2. A pension cash commutation of 24\$ plus ^a monthly pension all calculated based on the Bank of Uganda Retirement Benefits Scheme rules, of which you are a member.

You will also arrange to settle all your outstanding obligations with the Bank as shall be agreed with the Legal Counsel. By a copy of this memo, Director Human Resource is being asked to finalize all necessary arrangements for your smooth disengagement.

On behalf of the Board management and all staff, I wish you a happy and active retirement. l0

-l

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# Louis Kasekende (PhD) DEPUTY GOVERNOR

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) Clearly, from the aforesaid letter of termination, the respondent's contract of service was neither terminated under "Forced Retirement" which can occur in three circumstances. An employee could be forced to retire on medical grounds, or for non performance or in public interest, which did not apply to the respondent's case. There was no evidence to establish any of those three circumstances. Neither was the respondent guilty of any misconduct to justify summary dismissal. l0

On the contrar5z and as indicated by the audit report she had never been warned of any short comings. She had a commendable work record as an outstanding performer. I am persuaded to believe her that the termination was due to malice given her excellent performance, evidence and the terms of the contract. The appellant wrongly terminated the respondent's contract without giving her opportunity to defend t5 l0

)

herself against the malicious allegations leveled against her.

Further, as the record stands it would not be correct to describe the mode of termination as "termination on notice" when the termination letter is entitled "Retirement". The only logical conclusion is that the appellant had decided to terminate the respondent's contract under "normal retirement" with all the full benefits. I am unable to fault the decision of the learned trial judge on this issue.

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This leads me to my second comment which relates to the award of damages which to the appellant were not all deserved. If as noted above the termination was under normal retirement, the respondent was, therefore, entitled to those damages under the terms of the contract.

I also agree that the learned trial judge was justified to award punitive damages. The humiliation suffered by the respondent on l-rer return from abroad, on official duty, only to find her successor seated in her chair, was unacceptable and, hence, justified the award. ^I also concur with Kitumba JA that the quantum was on 20

(,

the lower side. I would have been persuaded to enhance it if the respondent had filed a cross appeal. Clearly, the decision to terminate the respondent's service and the conduct of the respondent were hash and oppressive. I would, therefore, dismiss the appeal with the orders proposed by Kitumba, JA.

Since Twinomujuni, JA also agrees, the appellant's with dismissed is hereby appeal costs to the respondent in this Court and in the High Court.

Dated at Kampala, this $2.5$ th day of April, 2007.

L. E. M. Mukasa Kikonyogo $15$ DEPUTY CHIEF JUSTICE.

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$10$

# THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

# CORAM: HON. JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ HON. JUSTICE A. TWINOMUJUNI, JA HON. JUSTICE C. N. B. KITUMBA, JA

#### CIVIL APPEAL NO.49 OF 2005

# BANK OF UGANDA...................................

#### **VS**

#### BETTY TINKAMANYIRE....................................

## [Appeal from the judgment of the High Court of Uganda at Kampala dated 7/3/2005 (Okumu Wengi) on Civil Suit No.398 of 2003]

### **JUDGEMENT OF TWINOMUJUNI, JA:**

I have had the benefit of reading in draft, the judgment of her Lordship, Hon. Justice C. N. B. Kitumba, J. A. I agree with the reasoning and the conclusion proposed in the draft. I have nothing useful to add.

Dated at Kampala this.... $\frac{2.5}{\sqrt{5}}$ day of $\frac{1}{\sqrt{5}}$ ....................................

$ce$ Hon. Justice Andos Excitomujuni JUSTICE OF APPEAL.