[2005] UGHCCD 30

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA CIVIL SUIT NO. 388 OF 2003**

## **BETTY TINKAMANYIRE PLAINTIFF**

## **VERSUS**

## **BANK OF UGANDA DEFENDANT**

## **BEFORE: THE HON. MR. JUSTICE R. O. OKUMU WENGI**

## **JUDGMENT:**

The Plaintiff, brought this suit for wrongful removal from her office of the Assistant Director Human Resources in Bank of Uganda. The lady's case is that on 21st August 2002 a bulletin was posted on the local Area Network. It stated among other things "...

"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.

**(Signed)** E. Tumusime Mutebile **Governor."**

On the same day the Plaintiff received a letter signed by Louis Kasekende PhD, Deputy Governor to the effect that at its 264th

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meeting on 16/8/2002 the Board of Directors had resolved to retire her from the services of the Bank with immediate effect. No reasons were given to the plaintiff for this rather shocking event and she was offered

- Three months salary in lieu of Notice **(>)** - Commutation of annual leave (ii) - Pension cash commutation. (iii)

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She was also advised to sort out her outstanding obligations with the legal counsel. In the heat of the moment, her terminal benefits were allegedly wiped out by her advances or outstanding obligations. But as it turned out, as can be seen in the agreed facts, the Plaintiff's debts had been exaggerated, a fact that aggravated her circumstances. The Plaintiff contends that her involuntary or forced retirement amounted to an unfair, unjust, arbitrary, harsh, wrongful and illegal termination and she lost reputation, employment and suffered mental anguish hence this suit.

The defendant denied liability and asserted that it was well within its right to terminate the plaintiff's employment which it lawfully did.

In the course of hearing this case, six points were recorded as agreed facts namely that:-

**1.** The plaintiff was an employee of the defendant WEF 24/9/1992 to 21/8/2002.

- **2.** The defendant operates Bank of Uganda Terms and conditions of service and Regulations. - **3.** The plaintiff's employment was brought to an end by a letter dated 21/8/2002. - **4.** As at 20/9/2002 the plaintiff's entitlements on termination amounted to Shs 36,502,403. Whilst her total in debtedness amounted to shs 37,011,239 giving a net indebtedness of Shs 508,831. - **5.** The Plaintiff is entitled to a monthly pension after commutation of Shs 259,388. - **6.** Accordingly the plaintiff's indebtedness would be set off from two months pension and she is thus entitled to a pension as from 20/11/2002 to date.

During the trial, the plaintiff produced a total of nine (9) Exhibits, whilst the defendant provided two (2). Each side called one witness and two issues framed for the trial were:-

- **1.** Whether the Plaintiff's employment was lawfully terminated. - **2.** If not what are the reliefs.

From the evidence it is clear that the plaintiff was summarily disposed of and offered a nominal 3 months salary in lieu of notice but in effect she never got the money. She was forced into a state of abrupt retirement. She had never been given any warning or reprimand and her latest performance appraisal report (Exhibit P.2) had rated her as outstanding, recommending a promotion. She was given the unexpected Notice of termination which did not provide any reasons whatsoever. In the trial, the defendant attempted but without success, to lead evidence that indeed he plaintiff's service had been terminated, for non performance. This belated approach departed from the pleadings and it became patently incorrect to endeavour to provide a reason for dismissal, not in the notice effecting such dismissal, but at a later stage, in this case at the trial.

It is trite Law that once ^a rule of fairness and right to put forward ones side of the story has been denied, any subsequent effort is not only superfluous, but wasted. An opportunity offered after the event, comes when the rule of natural justice has been flouted and affords no opportunity: **Ridge vs Baldwin** (1964) AC 40. In the plaintiff's case, no evidence was led to show whether the plaintiff was ever heard by the Board of Directors on any disciplinary matter. There is no evidence whatsoever that she was accused of a fault and allowed to defend herself either in the Board or its staff committees. When asked, the plaintiff told court that she did not attend the Board. The notice itself informed her of a decision having been taken against the

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plaintiff in the past and offered no or further justification or reason for the action it specified. Indeed when the plaintiff appealed to the Governor, (Exhibit P.7) which appeal was also after the act, it fell on deaf ears, as it was rejected.

For the defendant, it was argued that the plaintiff's service was lawfully terminated in accordance with the staff Terms and Conditions of Service. But this court was not able to see any evidence that the termination was normal or that the Board observed due process, proceeding as it did, without the slightest notice to the plaintiff what was happening. The general bulletin of 21/8/2002 which set out several categories of employees who would not be tolerated was inexplicable. It seems to have suspended or overtaken the staff Terms and Conditions of Service which were not at all cited in the letter of "Retirement" to the plaintiff. No regulation was cited in the letter terminating the plaintiff's services. This other notice which coincided with the termination, categorized and targeted certain staff for discrimination and reprisal on the basis of character or reputation. It subjected them to extra ordinary criteria, that were not set out in any regulation of the bank in the same form and were clearly subjective. I must say that the hate list of undesirable individuals set out in the bulletin had the effect of categorizing by subjective labels individuals who for reasons of their types were to be eliminated. It sounded arbitrary, harsh and vulgar. I have only seen that kind of characterization in the film "Blazing Saddles" where Eddie

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Lammar recited a disgusting litany of villainous scoundrels that would qualify for recruitment into ^a band of rogues. I would not have expected this outburst from the Central Bank, particularly so in the context of the unexplained summary dismissal of the plaintiff who ironically worked in Human Resources. The danger in such ad hoc rules is that they do not set out any due process for their application and leave the decision as to who is the villain to a person or persons whose own judgment of others may be whimsical. In many cases the loathsome Judgment of others by such a person may apply to himself or herself with greater force, yet this mutuality is suppressed selectively.

But it is not the disinterested observers who would have been frightened by the Banks Bulletin of August 21. The Bank itself experienced a shock when the plaintiff's sacking occurred. In an audit report dated 4th October 2002 (Exhibit P.7), the result of an investigation specifically following upon the plaintiff's unprecedented dismissal, it was found that:-

"The dismissal of Ms Betty Tinkamanyire does not seem to have gone down well with staff feeling it was unfair."

The report made more detailed comments:-

#### **"(a) Betty Tinkamanyire** This case seems to have generated most of the heat with certain sections of the Bank blaming "the leadership" in Human Resources department for instigating it out of malice to get her out of the Bank, The leadership in Human Resources concurs that this case generated the heat but denies responsibility for the allegations that may have lead (sic) 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. In view of these findings and the possible adverse effects on the staff morale it would be in the interest of the Bank to review this case and accord this lady an opportunity to defend herself against whatever allegations that may have led to the termination of her services." (Underlining added)

From the above it is clear that the auditor was not able to put his finger on the untold reasons for the plaintiff's dismissal. He was also aware that she was never afforded opportunity to know her fault or to defend herself and he recommended a review of her case. The Human Resources "leadership" cautiously referred to in the report may have been Ms Eva Mwenebirinde who testified as DW1. She endeavoured to say that possible or probable reasons actually existed to remove the plaintiff from the Bank. I was unable to positively evaluate her rendition of these possibilities or probabilities given that they were not cited for the benefit of the plaintiff at the time of her

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dismissal. Moreover she was the Head of Department of Human Resources which is "the leadership" referred to in Exhibit P.7. She however even told court nice things about the plaintiff:-

"I worked with her for almost ¹⁰ years. She was ^a nice friendly person. No problem with staff. My colleague and friend. She got on well with everybody. This is all I know about her. She is a very good Christian. We have not had any problem with her."

When asked by court she stated

"I did not hear any complaint about her work or performance."

In **Barclays Bank of Uganda vs Godfrey Mubiru** C. A. ¹ of 1998 (S. C) the Supreme Court had this to say:-

"When an employee is in breach of a fundamental term of his employment or guilty of sufficient misconduct, he or she may be dismissed summarily without Notice, and, before the expiration of a fixed period of employment... An employee may be summarily dismissed if he or she willfully disobeys any lawful and reasonable order of the employer... It follows of course that summary dismissal is without notice and dismissal without notice also implies dismissal without a right to be heard first." (Per Kanyeihamba J. S. C).

In the present case there is no case of guilt or misconduct and if the plaintiff disobeyed a reasonable or unreasonable order it is not a matter before the court as that issue never left the vaults of the Bank or indeed the hearts of its leadership. This court would not fetter the employer's right to terminate an employees services summarily. This court however can intervene pursuant to the rules of natural justice and also the provisions of article 42 of the Constitution and render administrative justice where no legitimate cause is apparent to justify summary dismissal as in the present case. Further, the protection of public officers by Article 173 of the Constitution from victimization, discrimination, dismissal or removal from office without Just cause, is well founded and the principle applies to any employee. In this case the plaintiff is a Woman in a Public office entitled to equal treatment with men and equal opportunities in political economic and social activities under article 33 (4) of the Constitution. She is entitled to question her treatment and to the remedies available in our law.

From the above I have not had any hesitation to find and hold that the removal of the plaintiff from her position in the Central Bank was unlawful. It was an oppressive and violent act upon ^a meek and humble lady. Her dismissal was effected without proper effective notice, given that no salary in lieu of notice, was paid to her. Above all, the dismissal was in violation of the rules of Natural justice and fair play. In total, the plaintiff was victimized on yet unknown

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No reasons and no rule or regulation was followed or cited for it. minutes of the Banks Board meeting of 16/8/2002, if such meeting did take place, was produced in court to explain or justify or provide the authority for the action taken against the plaintiff. This is because from the agreed facts it is clear that it was the termination letter and not the Board meeting cited in the letter that had occasioned the Plaintiff's dismissal. This left the letter unsupported and therefore vulnerable as it never cited the law or rule under which the action arose. With the August 21 Bulletin circulating it was arguable that it was linked to the action. She was thus arguably arbitrarily and violently plucked from her lawful employment for no apparent reason. In the result I find and hold that the termination of her employment by the defendant was null and void and declare it so.

I do agree with the plaintiff's counsel that no effective Notice was given to the plaintiff who was admittedly a good employee with a clean ten (10) year track record of service and the grant of damages alone would not wholly atone for the stigma, torment and alienation that she has had to go through. I would have on the authority of **Hill vs CA Parsons** & **Co. Ltd** (1971) 3 AUER 1345 advised that special circumstances warranting an order, given the objective confidence in her, for her reinstatement with all the full benefits exist. But even if court did so, such reinstatement would not ensure that the lady plaintiff is not subjected to harassment in the work

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place. In any case the good side in the leadership in the Bank may emerge and enable it one day to take back the plaintiff and pay her her arrears which now total only Shs 146,209,024. I will not make that order of reinstatement given the dark side that this court was unable to fathom in this dispute.

The plaintiff prayed court to award her damages and compensation. She adduced evidence to support the award of compensation by way of special damages for lost earnings and other losses to the tune of shs 240,425,000. I have agreed to award her that sum and assessed general damages at shs 30 million and punitive damages at shs 20 million making a total of shs 50,000,000. The plaintiff will also be entitled to receive all her pensions in full and the sum of shs 12,255,000 being money in lieu of Notice. In effect I have awarded shs 302,680,000 to the plaintiff with interest at 26% WEF August 2002 till payment in full together with the costs of this suit. She will also receive her pension, in full and with arrears. In the result Judgment is entered for the Plaintiff against the defendant in the terms set out above.


R. O. Okumu Wengi JUDGE 17/3/2005.

## THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT KAMPALA

# CIVIL SUIT NO. 3\$8 OF 2003

BETTY TINKAMANYIRE PLAINTIFF

## VERSUS

BANK OF UGANDA DEFENDANT

#### DECREE

This suit coming up for final disposal before his LORDSHIP The Honourable JUSTICE R. O. **OKUMU WENGI** in the absence of MR. RICHARD OKALLANY, counsel for the plaintiff but in the presence of the plaintiff and in the presence of MR. MASEMBE **KANYEREZI,** counsel for the defendant.

#### IT IS HEREBY ORDERED AND DECREED THAT:-

- (a) The defendant be and is hereby ordered to pays Ug. Shs.240,425.000/= (Ug. Shs. Two hundred forty million, four hundred twenty five thousand only) being special damages for lost earnings; - (b) The defendant be and is hereby ordered to pay Shs. 30,000,000/= (Ug. Shs. Thirty million only) being general damages; - (c) The defendant be and is hereby ordered to pay Ug. Shs. 20,000,000/= (Ug. Shs. Twenty million only) being punitive damages; - (d). The defendant pays to the plaintiff interest of 26% on (a), (b), and (c) with effect from August 2002 till payment in full; and - The defendant pays to the plaintiff the costs ofthe suit. (e)

We a rove COUNSEL FOR THE PLAINTIFF. C NSEL FORTE DEFENDANT. GIVEN under my hand and the seal ofthe court this ..^<day of 2005. REGISTRAR. *DECREE EXTRACTED BY:-*

*M/S OMODING, OJAKOL & OKALLANY ADVOCATES P. O. BOX4109 KAMPALA*