[2024] UGHC 774

#### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT ARUA

### **CIVIL SUIT NO. 004 2009**

# KASAMBA SILVOUS....................................

#### **VERSUS**

#### PAIDHA TOWN COUNCIL:::::::::::::::::::::::::::::::::::: 10

## BEFORE: HON. JUSTICE ACELLAM COLLINS

#### **JUDGEMENT**

## Introduction and Background facts.

The plaintiff brought this suit against the Defendant for general damages for victimization, 15 punishment and discrimination and being driven out of office and/ or for special damages, exemplary damages and aggravated damages for wrongful dismissal.

The Background facts of this suit as can be discerned from the court record are to the effect that;

The Plaintiff was appointed a Clerical Officer Accounts on 22nd April 1994 by the Urban Service Committee (EXB. P.1) and subsequently his post was re-designated to Accounts Assistant 20 in 1995. That he was then confirmed in service as an Accounts Assistant PEX2 and promoted to Senior Accounts Assistant on 29th November 2005.

That in September 2005, the Plaintiff was appointed by the Defendant's Town Clerk to act as an Internal Auditor. And that in his audit report for the 2nd Quarter 2005/2006 for Financial Year ending 31/12/2005 the Plaintiff queried the failure to sign the inspection note and failure to transfer ownership of the car that had been bought by the Defendant.

That after that the Plaintiff's relationship with the Town Clerk deteriorated because the Town Clerk requested the Plaintiff to drop the query but the Plaintiff declined. As a result, the Town clerk accused the Plaintiff of being drunk during working hours and abandonment of duties in

- a series of letters. That the Town Clerk submitted the letters to the District Service Commission 30 of Nebbi for disciplinary action with a view of having the Plaintiff dismissed from service without according the Plaintiff a chance to defend himself in the first place. And that from then the Plaintiff was forced out of office until the CAO of Zombo District in his capacity as head of the Civil Service in the district transferred him to a new work station on 17th/04/2023. - To the contrary, the Defendant in its Amended Written Statement of Defence and Counterclaim 35 contended that the Plaintiff was most of the time absent from duty without a reasonable excuse and without permission. That the Defendant served the Plaintiff with several warning letters regarding the Plaintiff's actions of neglect of duty, drunkenness during working hours, and the Plaintiff acknowledged these letters but did not behave better. And that the allegation that in - January 2007, the Plaintiff started encountering difficulties at work due to the audit reports he 40 made is false and a cover up for his gross misconduct. The Defendant also averred that the

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Plaintiff absconded work without valid reasons even before January 2007. And therefore, prayed 5 that the suit be dismissed with costs to the Defendant.

#### **Representation and hearing**

At the hearing the Plaintiff was represented by M/s Jogo Tabu & Co. Advocates while the Defendant was represented by *M/s Manzi & Co. Advocates*.

Both parties filed their written submissions as requested by court. 10

#### Counter Claim

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Counter Plaintiff.

Counsel for the Defendant/ Counter Plaintiff raised a Counter Claim wherein he stated that despite the letter written to the Plaintiff by the then Town Clerk of the Defendant in PEX15 asking the Plaintiff to resume work, he refused to do so and yet he continued to receive salary since his name is on the government payroll as evidence in DEX4 - DEX15 plus the current pay slips for the period of October 2018 to March 2019 as evidenced in D18 to D23. The Defendant counterclaims a sum of 58,365,360/= being the salary received by the Plaintiff without working.

Counsel then prayed that the Plaintiff's claim of withheld salary for the month of March 2006 and the months of April 2007 to October 2008, a total of 19 months amounting to UGX 6,461,442/= should be set off from the Defendant's counter- claim and accordingly the suit be dismissed with costs and interest thereon at 6% per annum from the date of judgement until payment in full.

The Plaintiff/ counter defendant in response to the Counter claim stated that the Plaintiff denies absconding from work as alleged and contends that he was unlawfully forced out of office by the Town clerk, a servant of the Defendant. And that the claim for special damages by the counter plaintiff is in bad faith and or ill conceived. And prayed that the Defendant's counter - claim be dismissed with costs to the Plaintiff.

#### Determination of the Counter - Claim

I have analysed submissions of both counsel in respect to the counter claim and the evidence led by both parties in that respect.

And I find that it is indeed true that at some point after the Defendant had been called back to work and he got information on the same he missed work and yet was still receiving pay.

Even though the Plaintiff avers that he was not served with PEX15 until he filed this suit, DW1 in his testimony stated that he assumed the position of acting town clerk, he called the counter defendant to his office and informed him of PEX15 and requested him to come and resume work. That the Counter Defendant refused even though he was still receiving salary from the

The Counter Defendant's Counsel did not rebut that assertion even in their rejoinder submissions which affirms the Counter Plaintiff's assertion.

40 In respect to the Counter claim therefore, I find that for the months that the Counter Defendant missed work without a valid reason and received salary from the Counter Plaintiff, that was unjust enrichment on the part of the Counter Defendant.

I therefore allow the counter claim only to the extent where the Counter Plaintiff missed work $\mathsf{S}$ without a valid reason and permission and received payment.

I will now go ahead and determine the matter on its merits.

<u>Issues</u>

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- 1. Whether or not the Plaintiff was wrongfully dismissed from service? - 2. Whether or not the Plaintiff was victimized or discriminated against for preforming his duties according to law by the Defendant? - 3. What remedies are available to the parties?

Determination of the issues by Court

Issue 1:Whether or not the Plaintiff was wrongly dismissed from service?

Counsel for the Plaintiff submitted that from the outset, the Plaintiff successfully demonstrated 15 that he was not dismissed from service.

Counsel for the Defendant agreed conceded to the Counsel for the Plaintiff submissions on this issue and prayed that the Plaintiff's claim for general damages for wrongful dismissal fails.

According to the various evidence on court record like PEX 14 where the Defendant was advised by the RSA Nebbi District to abandon the submission to the Nebbi District Service Commission 20 and call back the Plaintiff to work and pay him all withheld salaries, plus PEX 18 a letter from the CAO Zombo District transferring the Plaintiff to another work station all show that the Plaintiff was never dismissed from service. Therefore, he can not claim wrongful dismissal.

From the analysis above, this issue is answered in the negative.

#### Whether or not the Plaintiff was victimized or discriminated against for performing 25 $$ his duties according to the law by the defendant?

Counsel for the Plaintiff submitted that all the chain of events from the time the Plaintiff made the internal audit on a motor vehicle purchased by the defendant, including his documents getting lost, not serving him the letters in respect to the actions complained about him and so on as explained in the Plaintiff's submissions all show that he was discriminated against and victimised.

Counsel for the Defendant on the other hand submitted that the Plaintiff was not victimized nor discriminated against during the course of his work with the defendant and that it is the Plaintiff that absconded work.

DW1 testified that the Plaintiff had been warned severally about his irregular attendance, 35 drinking alcohol during working hours and his uncooperative behaviour and so many more unbecoming behaviours.

And he also referred to DEX2 wherein the Plaintiff was apologizing to the Town clerk of the defendant.

I have analysed all the evidence led by both parties, and on the outset, I do not see any chain in 40 the events that happened to the Plaintiff to the actions of the Defendant. In respect to the lost

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documents the Plaintiff reported a case to the Police but the same was never prosecuted so there 5 is no proof that indeed the Town Clerk of the Defendant caused it. And there is no proof that all the events that happened to the Plaintiff were as a result of the Town clerk's actions.

I therefore answer this issue in the negative.

#### What remedies are available to the parties? $Issue 3:$ </u>

The plaintiff in his pleadings prayed for special damages to a tune of 81,116,682, general $10$ damages for victimization, punishment, discrimination and wrongful dismissal, exemplary damages for the defendant's wanton and wilful disregard of the law.

#### **Special** damages

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It is trite law that special damages must not be specifically pleaded but they must also be strictly proved by direct evidence. See Bonham Carter Vs Hyde Park Hotel ltd (1984). 15

The plaintiff's Counsel led evidence in respect to the special damages for the withheld salary for the months of March 2006 till the month of October 2008 and the same is evidenced by PEX 15 wherein the Defendant admitted to owing this money to the plaintiff and accepting to pay him in a lumpsum.

The Defendant's Counsel also agreed on this in their counter claim 20

I have perused the record of adduced by the Plaintiff and I am satisfied that the Plaintiff has only proved special damages to a tune of 6,461,442/= and has not proved the other amounts pleaded for in the amended plaint under special damages.

### General damages

A plaintiff who suffers damage due to the wrongful act of the defendant must be put in a position 25 he or she should have been in had she or he not suffered wrong. See; Kibimba Rice ltd Vs Umar Salim SCCA of No.17 of 1992.

General damages are awarded at the discretion of court. They are awarded to compensate the aggrieved fairly for the inconveniences accrued as a result of the actions of the defendant. See: Muhammad Tumusiime v URA Civil Suit NO. 825 The whole process of awarding damages where they are at large is essentially a matter of impression.

Counsel for the Plaintiff submitted that the actions of the Town Clerk of the Defendant caused the Plaintiff to suffer loss of income for 16 years, inconvenience and embarrassment, his children dropped out of school, loss of practicing his profession for 16 years, loss of opportunity of promotion for 16 years, loss of opportunity to join Mukono University, pain and suffering for being victimized and discriminated against for performing his duties faithfully in accordance with the constitution of Uganda.

$30$

I have looked at the submissions of both counsel and evidence adduced by both, the Plaintiff however does not show how the above occurrences are as a result of the Defendant's actions.


The law on general damages is awarded at the discretion of the court and the purpose is to restore $\mathsf{S}$ the aggrieved person to the position they would have been in had the breach or wrong not happened.

In my discretion I find that the Plaintiff is only entitled to the general damages of the inconvenience he faced when he was out of office because of the actions of the Defendant's town clerk up until the time he was called to come back to office and he refused and the time he was not receiving salary from the Defendant while he was working.

I therefore find an award of $5,000,000/$ as general damages appropriate.

#### **Exemplary Damages**

- 15 Exemplary damages are an exception to the rule that damages generally are to compensate the injured person. These are awarded to punish, deter, express outrage of court at the defendant's egregious, high handed, malicious conduct. They are also awardable for the improper interference by public officials with the rights of ordinary subjects. Unlike general damages and aggravated damages, exemplary damages focus on the defendant's misconduct and not the injury - or loss suffered by the plaintiff. They are in the nature of a fine to appease the victim and 20 discourage revenge. See Uganda Revenue Authority vs Wanume David Katamirike SCCA No. 3 of 1993

The principles of governing the award of exemplary damages were set out by Lord Delvin in the case of Rooks Barnard and approved in the case Cassel & Co. Ltd vs Broome (1972) AC 1027 that there are three instances where exemplary damages might be justified;

- 1. Where the government servants had been guilty of oppressive, arbitrary or unconstitutional action. - 2. Where the defendant's conduct had been calculated by him to make a profit for himself which may exceed the compensation payable to the Plaintiff and - 3. Where such an award was sanctioned by statute.

Applying the above principles to the present case, the conduct of the Defendant's town clerk does not fall under any of the principles mentioned above. That even when the town clerk had not followed the guidelines in the law in respect to the disciplinary actions towards the Plaintiff, he was advised to call back the Plaintiff and also give back their withheld salaries and to follow the right procedures. Therefore, I find that the award of exemplary damages is not necessary and

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as such there are no actions to punish the defendant for.

This prayer therefore fails.

#### **Aggravated Damages**

40 In the case of Fredrick J. K Zaabwe vs Orient Bank Ltd & 5 others (2007) 1 HCB 24 (SCU), Court held that aggravated/ compensatory damages are awarded where the Plaintiff suffered malice or arrogance and injury for instance humiliation or distress.

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Counsel for the Plaintiff submitted that in the instant case even when the Resident State 5 Attorney in PEX14 advised the Town Clerk to drop the charges and pay the Plaintiff the withheld salaries in lumpsum, the Town clerk chose to write a letter PEX15 but did not serve the same on the Plaintiff.

Counsel for the Defendant on the other hand submitted that the letter was served on the Plaintiff but he chose to ignore it.

I have perused the file and evidence adduced by both parties in respect to this aspect and I find that, the Defendant did not adduce any evidence to show that indeed the letter in PEX 15 was served on the Plaintiff. DW1 however testified that when he became acting Town clerk of the Defendant 2017, he personally invited the Plaintiff to his office. He stated in his testimony that when the Plaintiff came and DW1 advised him to resume work, the Plaintiff refused to resume his work with the Defendant and yet he continued to receive salary.

I have read through the attendance files of the Defendant and DEX5 - DEX 15 AND DEX 19 - DEX 23, the Plaintiff continued receiving salary from the Defendant even when in the attendance file the Plaintiff was absent without reason save for the few times, he was sick.

Therefore, if I award the Plaintiff compensatory damages for what he didn't lose since for the 20 most part he also contributed to the acts that happened to him by him not resuming work even after telling him to do so, I will be condoning unjust enrichment which this court does not condone.

This prayer therefore also fails.

#### Interest on the special and general damages 25

Section 26(2) of the Civil Procedure Act Cap71 provides that where insofar the decree is for the payment of money, the court may in the decree, order interest at such rate as the court deems reasonable to be paid on the principal sum adjudged from the date of the suit to the date of the decree......

Taking into account that provision, the award of damages shall attract an annual interest of 10% 30 from the date of judgement until payment in full.

### $Costs$

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$10$

As regards to costs, section 27(1) & (2) of the Civil Procedure Act Cap 71 provides that the costs are awarded at the discretion of court and they must follow the event. Further, a successful

- party is entitled to costs unless there are good reasons to deny such Party costs and while 35 exercising such discretion, the court must do so judiciously. See Jennifer Behingye, Rwanyindo Aurelia, Paulo Bagenzi Vs School Out fitters (u)ltd CACA No.53 of 1999 I totally agree with this position and therefore find no obstacle that would make me deny the Plaintiff who is the successful party in this suit costs. - Given the fact that the Defendant's counter claim succeeds to some extent and the Plaintiff's 40 case succeeds to some extent too, both parties shall bear their costs in respect to both the counter claim and the main suit.


- For avoidance of any doubt, judgement is entered for the Plaintiff against the Defendant on the $\mathsf{S}$ following term; - a) Special damages of $UGX$ 6,461,442/= - b) General damages of $UGX$ 5,000,000/= - c) Interest on a) and (b) above at a 10% per annum from the date of filing suit till full payment - d) In respect to the Counter claim, the Counter Defendant/ Plaintiff make good of the money that he received without working to the Counter Plaintiff/ Defendant. - e) Both parties bear their own costs.

$10$

Dated, signed and delivered at Arua this .................................... $\frac{1}{2024}$

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**Collins Acellam**

20 **JUDGE**