[1998] UGHC 19

## **THE REPUBLIC OF UGANDA**

#### - **IM THE HIGH COURT OF UGANDA AT KAMPALA.**

#### **CIVIL SUIT 887/96**

**CHARLES LWANGA .... PLAINTIFF**

**v;***r-*

#### **- VERSUS** - ^y

### CENTERNARY RURAL DEVELOPMENT TRUST DEFENDANT

**BEFORE THE HONOURABLE LADY JUSTICE C. K. BYAM UGISHA**

**JUDGEMENT**

**The plaintiff Charles Lwanga brought these** proceedings against his former employer **claiming general^ special and exemplary** damages **with** *^I* interest at the rate of 40% **per annqm and costs ofthesuit.**

**•i \*<.•**

The **facts constituting the-plaintiff's** cause **of** action seem to have arisen as follows:-

**On the 23rd,April 1986 the; plaintiff was appointed** Assistant Accountant by the defendant **Bank and on the 30th November 1987 he** was **promoted** to the rank of Accountant,

January, **1992,. Prior, to that dismissal, the plaintiff and three other** officers of the bank were **arrested, charged and later acquitted on 17th May** 1995 on offenses of this forgery, **uttering a false document and obtain ing** money **by** false pretences. After On 30th **October 1991 he was suspended from duty and on the 14th** January 1992 he was **dismissed from the employment of the defendant with** effect from 15th **acquittal the plaintiff instituted** this^ction claiming the reliefs already

mentioned.

liability in respect of wrongful ^I h i s sum plaintiff's entitlements for wrongful dismissal. When the matter came before me for final disposal, the defendant admitted dismissal, false arrest and malicious prosecution. It was also admitted that the plaintiff was entitled to the sum of Shs. 15,55,265 (five million five hundred, thirty five thousand two hundred sixty five). represents what the defendant claimed was the

The trial proceeded to prove the balance on special damages exemplary and general damagesfor wrongful arrest and malicious prosecution. ^I ⁿ an ^a Item pc to prove special damages the plaintiff relied on oral evidence and produced exhibit *j(* P.4. He also adduced the testimony of Masaba (P. W.2) a former employee of the bank who stated that he used to work in the salary section. He further testified employee. He further testified that the plaintiff was in salary scale ⁵ the highest notch. By consent of both counsel, two certified copies of salary scales (exhibit/J D. II) and staff regulations (exh. D.1) were tendered. that he used to get:*,*verbal Instructions to determine the salaries due to eacn

in their submissions; both counsel persuaded court to rely respective documents. ^I have had opportunity to look at both documents i.e <exhibitD.il> and exhibit P.4. At the time both documents were issued, the plaintiff referred Court to thse case of Kasekende Muqizi v. Centenary Rural Development Bank - H. C. C. S No. 8-12/95 where the court used exhibit P.4 and disregarded the schedule of the bank\*. He therefore claimed that there is good reason for the was no longer an employee of the bank. In his testimony he stated that he got the^ defendant to prepare® forged document and he invited courtto treat exhibit D.2 as on their scales from his friends in the bank. Counsel for the plaintiff in his submission

useless. **would give verbal instructions to P. W.2** to effect payment of salaries **without putting those instructions in writing. Counsel for the defendant bank however urged court to treat** exhibit D.2 as authentic. **He submitted that It is highly unlikely that an** organisation like the defendant **bank**

They were When both scales are **look at, it becomes apparent that exhibit D.2** was accompanied with for the **staff of the bank. Therefore, ^I do not** accept **the** testimony of P. W.2 that he used **to** get **verbal instructions. Ail the** correspondence **in** exhibit D.2 appear *to* General **Manager all principal officers of the** bank. **^I** am **not** persuaded that they forged **the salary scales in prder to defeat the plaintiff's claim.** Admittedly the plaintiff was **at ^a disadvantage in that when salaries were being revised, he** was **no longer an employee of the defendant and therefore** had no access to official information **of the bank butthat alone does not entitle him** to use documents and to get damages **that he would not otherwise get. Exhibit P.4 shows** that **the** figures **contained therein were proposed** emoluments **for** management staff. **It** therefore **reasonable to conclude that the proposals were later made** official in exhibit D.2. **The plaintiff in his testimony admitted that** some figures are similar **ao** arid others emoluments were **adjusted before being officially published by** the defendant. Furthermore, **the plaintiff's original plaint filed on 28/9/96 contained** a claim of over **as"** that the **plaintiff did not have reliable information on which** to base his shows **All In all, ^I think the plaintiff has not proved the** special damages calculations. Exhibits **D.1 and D.2 are both certified copies of the original,** tendered **by consent for^f purposes of comparison with exhibit P.4.** to have **emanated from the Personnel Manager, Principal Accountant and the 19 million shillings as special damages. This figure** was **amended** to over 30 million on 07/**March 1997 and further amended to over ²¹ million. In my view this are different. This might be an indication that the** proposed instructions **to all branch managers to effect payment of the** revised emoluments

strictly as the law requires and the figure admitted by his former employer should in all -fairness\*be the correctfigure/*' ' '* \*

As regards exemplary damages these are awarded when aggravating circumstances exist in the act or intention of the defendant or the servants of the defendant. Normally they are intended to deter the defendant from repeating the^ acts complaining of. ^'Theriaw In'^Uganda has followed the dictum in the case of ^Hookes ^v BarnardJ1964]A;C?1129 which stated that the damages should be awarded only in the following Instances:-¹ '

(1) *io* where the -'plairitiffPis-the victim of oppressive and unconstitutional behaviour atthe hand§of a government official. • ⁴ '

(2) where the profit hade by the defendant is based on ^a calculation that the monies accruing, from 'his wrongful act will exceed the plaintiff's loss;

(3) damages.¹ That some law for thetime being In force authorises the award of exemplary

*,* »\*» \* '

Has the plaintiff .brou ght himself within the ambit of the above legal rule? /^S It was submitted beforejne' lby counsel for the defendant that exemplary damages are not awardable In th.lscas©/ He relied on decisions of this court namely Joseph Lukwaqo y.;Attorney-GeneratLH9893 K. L. R. 204; Kasule v. Makerere University [1975] H. C. B. 276 and' Obora y, Barclays Bank [1992-93] H. C. B. 17 in which the principle in Rooke's -case was restated¹ In that exemplary damages are awarded SO where the defendant's conduct was -calculated to procure him some benefit at the expense of the plaintiff, aind where the damages awarded are insufficient to punish the defendant. *^k* - ' X

He maintained that the defendant In' this case is not likely to repeat the acts complained of in the plaint and'thus nb exemplary damages should be awarded.

•\* *t* 'ⁱ .... i-'i cijri './♦ *'1'h* ¹ '

Counsel forthe plaintiff In his submissions on exemplary damages conceded that they are awardable ln! unique situations. He stated that the act of the defendant of not paying the plaintiff his terminal benefits for five years was high handed and the defendant was behefittfng from the money it could have paid. He prayed for an award of 2 'million shillings. ^I think there is some merit in submission. The plaintiff was dismissed from the employment of the defendant without being paid his terminal benefits. This must have caused him anguish and therefore he Is entitled to be paid some exemplary damages to console him for the humiliation he has gone through all these years. ^I accept the figure of ² million shillings and award it. See:' 'A. B. Sindano v. Ankole District Administration - C. S No. 463/69 where consoiated damages were awarded.

*JLO* The last claim is for general damages. These are normally at large and the quantum depends on the cHscretioh of the court/ However the legal principles which have been laid ' down'Over the years upon which general damages are assessed are no longer ^a matter of doubt. The plaintiff who has succeeded in proving his claim is entitled to be awarded such sum of money as will as far as possible make, good to him the financial loss which he has suffered and will probably continue to suffer as ^a result of'the wrong done to him for which the defendant is liable:' See: British Transport Cora mission v. Gourley [195513. All ER 766; and Ki mani v. Attorney General I1969JEA 522.

In the matter now under boris/deratlon, the plaintiff testified that when he was arrested,'he was detained for ⁸ days by the puolice. He was kept in unhygienic X conditions. Slncehis'acquittaHn' 1995, he has bteen trying to get jobs without *I 0*

*S'*

much success. One of ttye jobs he got with a company called New Era Printers and Stationers Ltd on ^ndpecemben 1992 was lost barely two months later. The reason given in the letter (exhibit P.3) was that he has to get a recommendation from previous employer. The fetter .was apparently copied to the Managing Director of the defendant, The plaintiff also testified that he is regarded as ^a thief in the . S' local area where he Hyes, . His counsel suggested a figure of 8 million shilling being reasonable. There Is no mathematical formula to use In measuring the loss the plaintiff has suffered and might continue to suffer as a result of the wrongs complained of. ^I will award him 5 (five) million shillings. ^I hope this f'g meet the ends of justice. *. 10* ^I • »¹ \*• • ' ¹ • \*

The question of,.40% Interest rate claimed in the plaint was raised by the defence. The contention, here is that the interest is too high or that it is not awardable in cases of breach of contract. Section 26(2) the Civil Procedure Act provides that:

*t5*

"where and in so far as ^a decree is for the payment of money, the Court may,.,fp the,decree order interest at such rate as the court ^deems reasonable toJ>e paid on the principal sum adjudged from th^e date of the suit tojy^^iateofthe^&lt; decree, in.addition to . . any interest adjudged on such principal sum for any period prior to the institution of the suit, with further interest at such rate as the court deems reasonable on the aggregate sum so adjudged from the date of the decree to the date of payment or to such earlier date as the court thinks fitt.° ... ." ,

The above provisions, I'thjmk give court discretionary powers to award any rate of Interest which It.co nslders reasonable. ¹ consider the interest of 40% claimed • • ^&gt; -• •\* • • • •⁵ \* \*' ' J ;• "■\*/ '\* ' in the plaint as unreasoonable in the circumstances of this. ^I have not come across

court rate of 6% per annum a reasonable rate. ^a case like the present one where such interest has been awarded. ^I consider th

defendant Judgment will be entered in favour of the plaintiff against the general till payment In full. for the sum of 2 (two ) million exemplary damages and 5 (five) million as damages. The sum will carry interest at 6% per annum from the date of judgment

interest the taxed costs of the suit. The sum of shs. 15,535,265 which was admitted by the defendant will carry from the date of filing the suit till payment In full. ^T he plaintiff is also awarded

■\* C. K. Byamugrsha

Judge 12/5/98. *10*

*S'*

**PLAINTIFF DEFENDANT THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA CIVIL SUIT NO.887 OF 1996 CHARLES LUANDA ] versus CENTINARY RURAL DEVELONENT ] BANK LTD . 1 ...**

# **ORDER**

This suit Lady Justice Mrs. Constance Byamugish *»* and in the presence of Counsel f ^o ^r the plaintiff **^M r.** John Matovu and Counsel for the defendant ^M ^r . Gerald ^K ^a ^k ^u ^b a*,* IT IS HEREBY ORDERED and DECREED coming on for final disposal before as follows:

- ¹ . That the defendant admits liability for the plaintiff's claim and judgment is entered in the sum o ^f Shs.15,535,265\«(shillings fifteen million five hundred th ⁱ ^r ty-five thousand two hundred six ty-five) ^a ^s special damages admitted by the defendant. - ² That the .suit shall be set down for ^a ssessmen ^t of ^f ^u ^r ^t ^h ^e ^r damages that the plaintiff claims against the defendant.

**f** , Boa IW ^H

# **KTROTJANA, KAKUBA £ CO.** advocate/

We approve:

Given under $\text{m}\textbf{y}$ hand and the Seal of this Honourable Court this $\frac{1}{2}$ day of $\frac{1}{2}$ day of $\frac{1}{2}$ .

**REGISTRAR\JU**

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