[1985] UGCA 1

## IN THE COURT OF APPEAL

## AT KAMPALA

(CORAM: MUSOKE, P., LUBOGO, V-P., NYAMUCHONCHO, J. A.)

CIVIL APPEAL NO. 4 OF 1983

BETWEEN

GRINDLAYS BANK (U) LTD. .......................... APPELLANT A N D

$\cdots$ RESPONDENT SAMUEL LYAZI ................

> (Appeal from a judgment and decree of the High Court of Uganda at Kampala before (Allen, J.) dated<br>28th September, 1983

> > IN

## High Court Civil Suit No. 835/81)

## JUDGMENT OF THE COURT:

This is an appeal against that part of the judgment of the trial judge which ordered the appellant bank to pay the respondent a monthly pension of Shs. 1,057/10.

The facts which are agreed are that the respondent was an employee of the Dutch Bank from May 1955 to 31st January, 1970. On that day the Dutch Bank sold its entire business to the appellant bank. By agreement between the two banks, all employees of the Dutch Bank were transferred to the appellant bank on the same terms and conditions which they enjoyed with the Dutch Bank. The respondent worked for the appellant bank from 1st February, 1970, until 3rd December, 1976, when he elected for early retirement at the age of 43. After his retirement, the appellant bank paid him terminal benefits as follows: Shs. 25,670/= (see Exhibit D2) representing his provident fund and interest due from his services with the Dutch Bank; Shs. 3,997/90 (see Exhibit D3) as payment of his shares in the National and Grindlays Asian and African Provident Fund; and Shs. $66,039/$ = as gratuity. After receiving those sums,

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the respondent complained to the appellant bank about his pension, see exhibit P4, the bank replied that he, having opted for early retirement, he cannot be granted a pension, see Exhibit P5. The respondent then filed this suit against the appellant bank praying for an order that the appellant bank be ordered to pay him his pension. He also claimed a balance of Shs. $34,596/$ = with interest as a sum due, as balance of his gratuity; but this claim failed and he has not appealed. The defendant denied liability.

At the trial, no issues were framed. The respondent gave evidence and maintained that under the terms and conditions with the Dutch Bank, he is entitled to a pension. He was not able to produce those terms because he said he lost them. However, he gave evidence that his colleague, Kisitu, with whom he was transferred from the Dutch Bank, got a pension under those terms. The appellant bank also gave evidence through its Personnel and Country Operations Manager, Mr. Ntwantwa (D. W.1) who testified that the respondent was not elegible for a pension under any of the two pension schemes operated by the appellant bank or under the terms and conditions of the Dutch Bank as they contain no provision for pension. He did not, however, produce the terms of the Dutch Bank, nor did he seem to know them. The learned judge, after considering the evidence on both sides, found for the respondent and ordered the appellant bank to pay a monthly pension to the respondent; hence, this appeal. The only issue is whether the respondent is entitled to a pension under the terms and conditions of service of the Dutch Bank.

There is only one ground of appeal. It reads: "The learned trial judge erred in law in deciding that the respondent was entitled to receive pension when there was no evidence or sufficient evidence for that finding."

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Mr. Kateera, Counsel for the appellant, argued that the trial judge, in effect, found that the respondent had not proved his case when he said at page 12 of the record \*witness does not seem able to understand that he must prove the terms claimed'. He submitted that in view of that remark, the trial judge was not justified to find for the respondent. By his verdict, he said, the trial judge, made a new contract for the parties contrary to the Principles of the Common Law.

It is not in dispute that the respondent and Kisitu transferred their services to the appellant bank on the same terms and conditions which they enjoyed with the Dutch Bank. It is those terms which are in dispute. The respondent says that those terms contain a provision for pension while the appellant bank says no such provision for pension exists. If the provision exists then an agreement to pay the pension exists. The trial judge would not have invented it. The learned trial judge had two versions on the matter. The respondent's version was that his terms under the Dutch Bank entitle him to a pension, that his colleagues, Semakula and Kisitu, who transferred on the same terms as himself to the appellant bank, got their pensions. The appellant bank's version was that Kisitu got a pension because he joined their pension scheme in 1977 known as the Pension and Life Assurance Scheme. The trial judge found that the appellant bank's contention that Kisitu joined their Pension and Life Assurance Scheme is unsustainable for under the memorandum, exhibit P3, the formula to calculate Kisitu's terminal benefits clearly states that Mr. Kisitu is not a member of the Grindlays Bank (U) Ltd. Pension and Life Assurance Scheme; and yet he got his pension. With this evidence the trial judge found there was an agreement to pay. He held that the respondent is entitled to a pension under the terms of the Dutch Bank.

In our opinion, the trial judge did not err in law. This was a case concerning the credibility of witnesses. The

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document containing the terms and conditions of the Dutch Bank was not produced, so he had to rely on the evidence before him to deduce that agreement. He had either to accept the testimony of the respondent or that of Mr. Ntwatwa (D. W.1). Mr. Ntwatwa was certainly not a good witness; he failed to acquaint himself with the terms and conditions of the Dutch Bank. He did not know them. Instead he relied on the terms and conditions of the appellant bank on which the respondent was not basing his case. He also failed to give a credible explanation as to why Kisitu was given a pension. Looking at the evidence as a whole, we find that there is an irresistable inference that the respondent's version is worth of belief; in this we agree with the trial judge. Accordingly, the appeal is dismissed with costs.

Dated at Kampala this $13$ ^th Movel Movel 1985.

insoko S. MUSOKE **PRESIDENT**

Down of plubok (D. L. LUBOGO **VICE-PRESIDENT**

(P. NYAMUCHONCHO)<br>JUSTICE OF APPEAL

I elivered in Povesence 7 Novembre for<br>respondents and Kaleera for appellant<br>Doordhichubop VP

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