[1999] UGHC 41


# THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA HIGH COURT CIVIL SUIT NO. 161 OF 1994

# SAM BYAKUTAGA :::::::::::::::::::::::::::::::::::

#### **VERSUS**

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1974年1月1日の日本の日本の日本の日本の日本の1975年1月1日

# UGANDA ELECTRICITY BOARD ::::::::::::::::::::::::: DEFENDANT

## BEFORE THE HON. JUSTICE RICHARD O. OKUMU WENGI.

## $JUDGMENT:$

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This case was brought by the plaintiff for recovery of arrears of salary for 24 months pay package, retirement/terminal benefits or gratuity due to him from the defendants and general damages. The plaintiff worked for the defendant Board as a purchasing officer until 1990 when he was suspended without pay on grounds that he was responsible for certain Land Rover spare parts that went missing while being imported into the country. The Board stated in its letter to the plaintiff that it had handed over the plaintiff's matters to the CID squad for proper investigations. He was placed on $\sqrt{5}$ suspension without pay pending the outcome of the investigations. The plaintiff was subsequently arraigned on criminal charges and acquitted after trial by the Mpigi Chief Magistrate's Court. The defendant in spite of notification of the conclusion of the case did not reinstate the plaintiff or clarify his position. The plaintiff then tendered his resignation effective from $\mathcal{L}_0$ 30^th September 1993.

The defendant on his part filed though rather belatedly a written statement of defence charging that the plaintiff had been guilty of misconduct having stolen Landrover spares belonging to his employer worth \$ 8,174.90. He was deemed to have had his services terminated as the Board $35$ at one point apparently decided not to reinstate him. The defendant also counterclaimed for the value of the elusive Landrover Spare Parts. Each side called only one witness. The first trial Judge, after some argumentation ruled that the facts, proceedings and the outcome of the proceedings in the criminal court were irrelevant for purposes of the trial and therefore 30 inadmissible. He promised to provide reasons for this ruling while delivering the final judgment which unfortunately he was not able to do. Since a different Judge has concluded the trial it is difficult for him to provide those

reasons. There are however two different issues related to this matter. The first is whether it was proper to adduce evidence that the plaintiff, subsequent to being sent on suspension, was investigated by a squad of CID on the same missing spare parts and tried and acquitted of the charges and that this flowed directly from the terms of his suspension by the defendant.

I am of the view that there is nothing wrong in telling the court what happened to the CID squad investigation where matters had been referred by the defendant during the suspension of the plaintiff. This to me, including the fact that the plaintiff was charged in court and acquitted were related to the missing spare parts pleaded in the defendants Written Statement of 10 Defence and Counterclaim. I would have also had no difficulty admitting this part of the evidence. Then there is the question whether evidence of an acquittal in criminal charge on the same subject (missing Land Rover spares) affords proof in a civil suit that the accused person was entitled to claim not damages in malicious prosecution, not an order of reinstatement but dues 15 owing to him for the duration of his suspension without pay which the defendant decided (in his Written Statement of Defence) to deem an outright termination. This clearly is a question that could have been addressed specifically. Fortunately I do not have to supply the undisclosed reasons why the evidence of investigations trial and results thereof were not admitted as $2\mathcal{V}$ such and in respect of what aspect evidential or on the question of liability of the defendant. The reason is that this decision will proceed without necessarily relying on the suppressed evidence.

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In his evidence the plaintiff testified that he was suspended without pay and as a result he lost Shs. 6,190,337/=. He had detailed this and other $25$ losses in annexture A to his plaint. This annexture was not specifically traversed in the Written Statement of Defence or in the evidence but in submissions from the bar. The Written Statement of Defence itself contained a general denial. The defendant instead charged the plaintiff of theft of the spares for which his services had been terminated when the defendant 30 decided (at an unknown date) without notifying the plaintiff, to terminate his services. These claims by the defendant arose out of a contract and contractual terms and conditions of service and ought to have been specifically denied, traversed and disclaimed in the pleadings and in the evidence. The seriatim traversal of allegations was weak in light of an $35$ annexture to the plaint which was a document in the pleadings and was relied on by the plaintiff. All the items were therefore proved by the plaintiff in his testimony. He was not shaken in the cross-examination on this issue. On the theft issue the plaintiff was not pinned to it even under the usually intense cross-examination by the late Katera, Advocate. 40

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\o stated in cross examination that the plaintiff investigations by CID. This was exhibit (the suspension letter). ie efendant called Fred Zesodi its principal personnel officer. This ^Wf *ti* CS^i ^lat an investigation was mounted by the legal department o ie efendant but that he did not know the results thereof. He stated that the defendant breached instruction No. 2 (1) (b) of the defendant. He also testified on the CID investigation and possible prosecution. He asserted that while on suspension the plaintiff could not resign and his resignation was irregular. The witness also stated that the defendant had not taken any decision about the plaintiff either dismiss the plaintiff or reinstate him. He therefore contradicted the Written Statement of Defence on this issue. But this leaves that pleading intact though unsupported by evidence. He also was suspended pending supportive of the plaintiffs claim and

**<)-0** ¹ must state right away that the plaintiff, from the evidence, was subjected to some sort of investigation both by the Police and the Legal Department ofthe defendant. The Police investigations and their termination in court by an acquittal were suppressed in part from the evidence. Yet both the plaintiff and the defendant needed their outcome to effectually determine the fate of the plaintiff. This leaves us with the legal department's investigation. This one is probably the reason for this decision. There is no evidence that the plaintiff was called to be present and or was given a chance to defend himself. This fact and the mysterious investigation itself and its processes and result was a flagrant breach of the fundamental rules of natural Justice. Audi Alteram Partem. On this alone the defendant's action regarding the plaintiff must be struck down: see the famous case of Ridge X vrs Baldwin (1964) AC 40.

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In his submissions learned counsel for the defendant Mr. Kanyeinbwa told court that the plaintiff's matter was referred to CID for investigations. Wltile he contended that the plaintiff had been grossly negligent in regard to 3° the fateful Land Rover spares he conceded that the allegation of theft was not tenable. He submitted that on the authority of Bird vrs British Calanese 1945 (1) EAR 448 plaintiff could not collect benefits during his suspension the measure had the effect ofsuspending the entire contract. He also cited Ddainulira vrs NIC (1972) HCB 54 and argued that by the time he resigned, CTT^^mTwarsubsisting. This in my mind is not tenable as a party be bound by his pleadings. In this case it was pleaded clearly that a 'PUS . though not communicated and dated was reached not to reinstate decisio means he had his services terminated as some point in tIie ^P was not told of it except in the pleadings. The evidence of DWI time | effect that the Board had never decided the fate of the plaintiff ZeS° diets the pleading which must be taken as binding on the defendant. At

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best it was his own interpretation of facts or even he was not aware of the ecision of the Board which was pleaded. This court therefore finds that the plaintiff was wrongly dismissed following an equally unfortunate decision to suspend him. The investigation by Police led to an acquittal while the internal investigation in the Legal Department ofthe defendant proceeded in 5" violation of the rules of Natural Justice. Therefore the termination of the plaintiffs services by the defendant was unwarranted and he was entitled to be reinstated. But since perhaps this was not possible or desired and or overtaken by the plaintiffs resignation, the plaintiff in my view was entitled to receive all his dues for the entire period of his suspension. In his submissions the counsel for the plaintiff pressed this court to dismiss the defendant's counterclaim with costs. He also prayed court to uphold the view that reinstatement and payment of arrears being written in the plaintiffs terms of service meant that if he qualified for reinstatement which he did, he was entitled to his entire pay package. This court agrees with this view and finds that the plaintiff was entitled to his entire pay package held unjustifiably without mounting a transparent investigation the result of which the defendant became aware of in-the defendant's pleadings. It is therefore the decision of this court to allow the plaintiffs claim for Shs. 10,153,155/= with interest at 25% W. E. F. 7th March 1994 (date of filing) till D-0 "payment in full. The counterclaim by the defendant is also dismissed with costs and the plaintiff is awarded costs of this suit. This court is of the view that this will be adequate compensation and (here is no need to award the plaintiff general damages or any or further relief even if his resignation helped the defendant to resolve an impasse.

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RICHARD 0. OKUMU WENGI Ag. JUDGE 29/09/1999.

'7/10/1999 " Kanyemibwa for defendant --------Plaintiff absent (but his wife present) Court:- Judgment read in the presence of the above persons.

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GODFREY NAMUND1 d/registrar, civil.

#### ! SAM BYAKUTAGA **i** C-CD" ^I mj:UULLCdHLQJJ. RT OF UGANDA AT KAMPALA gy'figg^ CJVJ L\_S\_UJLLN. O. JJ11\_O. EJ92.4 VERSUS *!. .. • •* ⁱ Mi'A PLAINTIFF -•••■ —

UGANDA ELECTRICITY BOARD

DEFENDANT

### DECREE

**THIS\_SUIT** having been heard and finally determined by the Hon. Justice Okumu Wengi coming on this 7th day of October, 1998 for final ^j udgement read by the Deputy Registrar (Civil) GODFREY NAMUNDI in presence Mr. John F. Kanyemibwa counsel for the defendant and in absence of counsel for the plaintiff.

IT ^I S ORDERED AND\_\_DE\_GREKD. that:-

Judgement is entered in favour of the plaintiff for:-

(a) The suit of Shs.10,154,153/=;

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Interest of 25% ¹⁹⁹⁴ until payment (b) in full. from 7th March,

does pay taxed costs ANI,\\_LT\_J-S—EUKTtLFK\_O. RD. ELB. RQ and QKGREKD. of the suit to the plaintiff. that the defendant

hand and the Seal of the Court this **GI. VEN** under my 1999. 7th day of October,

REGISTRAR

## EARTITULARS.

- **I..** Principal Shs.10,155,153/ - *2* 14,242,111/ Interest at 25% from 7/3/94 todate 7/10/99

Total Shs.24,397,264/=

£TNTIFF **—J**\_\_\_ WE\A)'PROVE THE TERMS OF THIS DECREE COUNSEL FOR THE P

\$E ATPROVE THE TE OF THIS DECREE COUNSEL FOR THE DEFENDANT

Messrs. Nyanzi, Kiboneka & Mbabazi, Advocates, Plot No.38 William Street, KAMPALA,.