[2000] UGHC 51

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THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA HIGH COURT CIVIL SUIT NO. 811 OF 2000

AUGUSTINE KAKOOZA PLAINTIFF

## VERSUS

SPEAR MOTORS LTD DEFENDANT BEFORE: THE HONOURABLE MR. AG. JUSTICE PAUL K. MUGAMBA

## JUDGMENT:

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his erstwhile employers, M/S Spear Motors Ltd. The facts of this case are not complicated. In December 1984 the plaintiff was taken By a letter dated 13th January 1986 the plaintiff was confirmed in his employment with the defendant as mechanic on permanent terms. There followed ^a *series of* promotions and training culminating in the plaintiffs ^K *5* eventual promotion as Assistant Workshop Manager-Truck Section in August ¹⁹ ⁹⁴ . The plaintiff was indefinitely suspended from duty effective 30th June 1997 following allegations of his involvement in theft of property belonging to the defendant and subsequent On 4th September 1998 after several mentions dismissed. On 26th July 1999 the plaintiff wrote to the defendant seeking ^a clarification regarding his that he was no longer being prosecuted. There was no This suit was instituted by Kakooza Augustine the plaintiff against prosecution in court. in court the case was employment now reply to the inquiry and this suit came to be filed. on by the defendant on probation as a mechanic.

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The plaintiff prays for the following reliefs:

- (a) a declaration that he is still an employee of the defendant - (b) payment of appropriate dues of salary and fringe benefits in accordance with terms of his 5 employment ie arrears - (c) order determining the status of the plaintiff with the defendant and payment of relevant dues alternatively an - (d) interest at 40% p.a from the date when payment was due and payable till payment in full. \ O - (e) costs of the suit.

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This case was heard exparte on 7th December 2000. On 27th November hearing notice M/S Musika, Advocates, counsel for the defendant. The following remarks IS attended their stamp: Mugisha *& Co.* 2000 a was served on

'Received but the date protested because Mr Musika handling the matter will be before Justice Arach attending HCCS 782/1999 Waseka vs Patel & Anor which was earlier fixed' .

before court neither the defendant nor counsel for the defendant were in court. Court sought to establish whether Hon. Justice Arach Amoko was holding court as it was common knowledge Her Lordship was on leave. Neither was court being held as intimated by counsel for the defendants nor was counsel for the S defendants anywhere near chambers of Lady Justice Arach Amoko. It When the case was

also transpired that the defendant's pleadings were defective. The amended written statement of defence offended provisions of Order ⁶ rule 1 in that it of evidence to be adduced, ^a list of witnesses, ^a list of documents and ^a list The accompaniments **s** apart from the list of authorities, are mandatory. Consequently there was no competent defence on record. was not filed in the company of a brief summary of authorities to be relied on.

To my mind the following are the issues in this case:

1. whether the plaintiff was ever an employee of the \O defendant?

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- 2. whether che services of the plaintiff to the defendant **^I** were terminated? - 3 . what are the available reliefs?

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The first issue should pose no difficulty as there is no evidence to controvert the fact that at least from 1984 to sometime in 1997 in the employ of the defendant. the plaintiff was

The second issue again hinges on evidence. There is no evidence of ^2^3 communication by the defendant to the plaintiff that the latter's employment had been terminated. ^I therefore find that the plaintiff is still an employee of the defendant.

Finally, the last issue should be in regard to reliefs available to the plaintiff. As earlier indicated his first prayer is for a

declaration that he is still an employee of the defendant. Having pronounced myself as ^I have above, ^I so declare.

The for payment of appropriate dues such as arrears of salary and fringe benefits in accordance with terms of his employment. In his evidence P. W.l (the plaintiff) had this to say, second prayer is

'If the defendant does not wish to take me back ^I pray for arrears of salary. At the time ^I was suspended ^I got a gross salary of shs. 600.000/= a month. In addition ^I got 20 litres of fuel for transport per week.

There were annual increments but I cannot recall what percentage was used.

^I want arrears of salary and benefits from the date of suspension until payment is effected' .

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must note also that the plaint does contain a head 'Particulars ^I of Special Damages' but those particulars are not particularised! In The Estate of Others [1965] EA 789, this to say: Special damages must be proved specifically. Shamji Visram and Kurji Karsan vs Shankerprasad Maganlal Bhatt and 796 the Court of Appeal for East Africa had

'While damages in tort with the result that compensatory damages are not restricted to actual are very often at large,

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pecuniary loss, this, of course, is not the position where the damages are claimed as special damages'.

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Again in Professor - C. L. K. Ssali vs Isaya Bwesigye [19 7 8]HCB 188 this the cardinal rule in respect to special damages is that they must be strictly proved. court held that

ⁱ I find therefore that the most this court can grant the plaintiff as special damages is the nominal sum of shs. 1,000/=.

> The third prayer is in the alternative to the second one. It seeks \ O an order determining the status of the plaintiff with the defendant and payment of relevant dues. This prayer is akin to paragraph ³ (a) of the plaint seeking an order that:

' (a) the plaintiff resumes his employment with the defendant or the status of the plaintiff with the defendant be determined'.

long held that can hire and fire an reason or for no reason provided that he does it in accordance with the law. See Nuwa Mugizi vs National Water and Civil Appeal 26/93 Court decision. See also John Okori Otto vs Uganda Electricity Board [1981] HCB 52, that ^a contract of service is not specifically enforceable. employee for a ^a decision by this court where it was held an unreported Supreme Sewerage Corporation, Courts have an employer

Court will however award damages employment ought to be properly terminated. Taking into account on the ground that the plaintiff's

^I find an award of shs . 18,000,000/= a reasonable sum as general damages. the circumstances of this case

The plaintiff shall also be entitled to costs of this suit and to on the decretal judgment till payment in full. an interest of 20% sums from the date of this

Paul K. Mu< •a

Ag. Judge.

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