[1993] UGSC 17

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{\insrsid4865946 \chftnsepc \par }}\sectd \linex0\headery708\footery708\colsx708\endnhere\sectlinegrid360\sectdefaultcl\sectrsid1915048\sftnbj {\footer \pard\plain \s16\ql \li0\ri0\widctlpar \tqc\tx4153\tqr\tx8306\pvpara\phmrg\posxr\posy0\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid5329327 \fs24\lang2057\langfe2057\cgrid\langnp2057\langfenp2057 {\field{\*\fldinst {\cs17\insrsid4865946 PAGE }}{\fldrslt { \cs17\lang1024\langfe1024\noproof\insrsid3039950 1}}}{\cs17\insrsid4865946 \par }\pard \s16\ql \li0\ri360\widctlpar\tqc\tx4153\tqr\tx8306\aspalpha\aspnum\faauto\adjustright\rin360\lin0\itap0\pararsid4865946 {\insrsid4865946 \par }}{\*\pnseclvl1\pnucrm\pnstart1\pnindent720\pnhang {\pntxta .}}{\*\pnseclvl2\pnucltr\pnstart1\pnindent720\pnhang {\pntxta .}}{\*\pnseclvl3\pndec\pnstart1\pnindent720\pnhang {\pntxta .}}{\*\pnseclvl4\pnlcltr\pnstart1\pnindent720\pnhang {\pntxta )}} {\*\pnseclvl5\pndec\pnstart1\pnindent720\pnhang {\pntxtb (}{\pntxta )}}{\*\pnseclvl6\pnlcltr\pnstart1\pnindent720\pnhang {\pntxtb (}{\pntxta )}}{\*\pnseclvl7\pnlcrm\pnstart1\pnindent720\pnhang {\pntxtb (}{\pntxta )}}{\*\pnseclvl8 \pnlcltr\pnstart1\pnindent720\pnhang {\pntxtb (}{\pntxta )}}{\*\pnseclvl9\pnlcrm\pnstart1\pnindent720\pnhang {\pntxtb (}{\pntxta )}}\pard\plain \s15\qc \li0\ri0\sb100\sa240\sbauto1\sl360\slmult1 \widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\ipgp1\pararsid3690182 \fs24\lang2057\langfe2057\cgrid\langnp2057\langfenp2057 {\b\lang1033\langfe2057\langnp1033\insrsid16009058\charrsid3690182 IN THE }{ \b\lang1033\langfe2057\langnp1033\insrsid3690182\charrsid3690182 SUPREME COURT OF UGANDA \line AT }{\b\lang1033\langfe2057\langnp1033\insrsid16009058\charrsid3690182 MENGO \line (CORAM: MANYINDO, D. C. J., ODOKI, J. S. C., &ODER, J. S. C.) \line CIVIL APPEAL NO. 13 OF}{\b\lang1033\langfe2057\langnp1033\insrsid3690182\charrsid3690182 1993 \line BETWEEN \par }{\b\lang1033\langfe2057\langnp1033\insrsid16009058\charrsid3690182 MARY B. MUGENYI NALONGO :: :: ::}{\b\lang1033\langfe2057\langnp1033\insrsid3690182 :::::::::::::::::}{\b\lang1033\langfe2057\langnp1033\insrsid16009058\charrsid3690182 :: :: :: :: APPELLANT \line AND \line COFFEE MARKETING BOARD LIMITED}{\b\lang1033\langfe2057\langnp1033\insrsid3690182 ::::::::::::::::::::;}{\b\lang1033\langfe2057\langnp1033\insrsid16009058\charrsid3690182 RESPONDENT \line (Appeal from a }{ \b\lang1033\langfe2057\langnp1033\insrsid3690182\charrsid3690182 judgment}{\b\lang1033\langfe2057\langnp1033\insrsid16009058\charrsid3690182 of the \line High Court of Uganda at Kampala \line (Mrs. Byamugisha J.) dated \line 22.7.1993 in }{ \b\lang1033\langfe2057\langnp1033\insrsid3690182\charrsid3690182 H. C. C. suit No. 346 \line of 1991). \par }\pard \s15\ql \li0\ri0\sb100\sa240\sbauto1\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\ipgp1\pararsid3690182 {\b\ul\lang1033\langfe2057\langnp1033\insrsid3690182\charrsid3690182 JUDG}{ \b\ul\lang1033\langfe2057\langnp1033\insrsid16009058\charrsid3690182 MENT OF ODER, J. S. C. }{\lang1033\langfe2057\langnp1033\insrsid16009058\charrsid3690182 \line }{\lang1033\langfe2057\langnp1033\insrsid16009058\charrsid4865946 This is an appeal against a dismissal by the High Court of the appellant\rquote s suit against the respondent for general damages for alleged wrongful dismissal from employment. \line }{\lang1033\langfe2057\langnp1033\insrsid3690182 \par }{\lang1033\langfe2057\langnp1033\insrsid16009058\charrsid4865946 The Appellant was employed by the respondent on 4 August, 1982 as an Accounts Clerk/Sub Cashier at their Coffee Processing Plant at Bugolobi in Kampala. After a period of probation, she was confirmed in her employment on 25th February, 1983. At first her work consisted of entering vouchers on which the respondent\rquote s customers paid money in the vote book. Subsequently, she worked as a receiving cashier. She entered money received in the relevant book and passed it and the book to her immediate superior called \'93Cashier Production\'94 , who signed for it. The receipt books from which she issued receipts for money received were also kept by her. \line }{\lang1033\langfe2057\langnp1033\insrsid3690182 \par }{\lang1033\langfe2057\langnp1033\insrsid16009058\charrsid4865946 The appellant\rquote s terms of employment were governed by an Agreement made between the respondents and the Union of which the appellant was a member. The agreement was tendered in evidence by the respondent as exhibit D.5.\line By a letter dated 21.5.1990 exhibit P.3, the respondent suspended the appellant from duty. The letter stated:\emdash }{ \lang1033\langfe2057\langnp1033\insrsid3690182 \par }{\lang1033\langfe2057\langnp1033\insrsid16009058\charrsid4865946 \'93This is to acknowledge and thank you for your letter dated 17th may, 1990 in reply to yours reference AD/J/3200 of 29th January, 1990. \line I am rather surprised that it took you so long to reply to our above reference letter. However, investigations are still being carried on the allegations that caused your suspension. \line You will soon be informed on the final decision on your future employment with the Board\'94. \line By another letter dated 30th May, 1990, the respondent dismissed the appellant from their employment, The letter said: \line \'93Management has directed that you should be dismissed with loss of all the privileges and rights to which you were entitled under your appointment as per }{\lang1033\langfe2057\langnp1033\insrsid3690182 un}{\lang1033\langfe2057\langnp1033\insrsid16009058\charrsid4865946 ion/Management Agreement. \line You are required to hand over to the Administration Manager the C. M. B. Identity \line Card and any other property of the Board in your possession\'94. \line }{\lang1033\langfe2057\langnp1033\insrsid3690182 \par }{\lang1033\langfe2057\langnp1033\insrsid16009058\charrsid4865946 Although the letters of suspension did not state the reasons for the respondent\rquote s action it was not disputed that the dismissal was founded on alleged misappropriation by the appellant of the respondent\rquote s mo}{\lang1033\langfe2057\langnp1033\insrsid3690182 ney amounting to Shs. 3,887,280/}{ \lang1033\langfe2057\langnp1033\insrsid16009058\charrsid4865946 =. In her plaint and testimony, the appellant\rquote s position was that she had not misappropriated any money, and that she had properly remitted it to the Cashier production, who signed for it. Her dismissal was therefore, wrongful. \line In their written statement of defence and evidence at the trial, the respondent maintained that the app}{\lang1033\langfe2057\langnp1033\insrsid3690182 ellant had incurred that amount of cash shortage}{ \lang1033\langfe2057\langnp1033\insrsid16009058\charrsid4865946 according to the receipt books indicating that she ha received the money. After an audit report showing what had happened }{\lang1033\langfe2057\langnp1033\insrsid3690182 the appellant was dismissed.}{\lang1033\langfe2057\langnp1033\insrsid16009058\charrsid4865946 \par }\pard \s15\qj \li0\ri0\sb100\sa240\sbauto1\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\ipgp1\pararsid3690182 {\lang1033\langfe2057\langnp1033\insrsid16009058\charrsid4865946 At the trial, three issues were framed:\emdash First, whether the appellant\rquote s dismissal was wrongful or not; second, whether the appellant was entitled to the relief\rquote s sought in the claim, and third, the quantum of damages, if any. The learned trial Judge found for the respondent answering the first and second issues in the negative, She concluded that the appellant\rquote s dismissal was justified, and dismissed the suit with costs. \line }{ \lang1033\langfe2057\langnp1033\insrsid3690182 \par }\pard \s15\ql \li0\ri0\sb100\sa240\sbauto1\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\ipgp1\pararsid3690182 {\lang1033\langfe2057\langnp1033\insrsid16009058\charrsid4865946 Regarding damages, she awarded the appellant Shs. 2 million general damages in the event of a successful appeal. \line Two grounds of appeal are set out in the memorandum. First that the learned trial Judge failed to appreciate the evidence adduced and therefore, erred in holding that the appel lant had been justifiably dismissed; and second, that the learned Judge erred in law in holding that the relief prayed by the appellant were special damages, whereas they were not, and therefore awarded insufficient damages in case of a successful appeal. \line With respect, I do not see any merit in the first ground of appeal and }{\lang1033\langfe2057\langnp1033\insrsid3690182\charrsid4865946 therefore,}{\lang1033\langfe2057\langnp1033\insrsid16009058\charrsid4865946 I think it should fail. In his submission concerning this ground, Mr Nangwala, the learned Counsel for the appellant said that the letter dismissing the appellant did not give reasons for doing so, and yet the respondent\rquote s case was that they were entitled to dismiss her summarily under Article 32 of this Union Agreement because she had been found to have misappropriated the respondent\rquote s funds. The correct Article was actually Article 2}{ \lang1033\langfe2057\langnp1033\insrsid3690182 8}{\lang1033\langfe2057\langnp1033\insrsid16009058\charrsid4865946 of the Agreement which provides as follows:\emdash }{\lang1033\langfe2057\langnp1033\insrsid3690182 \par }{\lang1033\langfe2057\langnp1033\insrsid16009058\charrsid4865946 }{\ul\lang1033\langfe2057\langnp1033\insrsid16009058\charrsid3690182 \'9328 GROSS MISCONDUCT}{\ul\lang1033\langfe2057\langnp1033\insrsid16009058\charrsid4865946 }{ \lang1033\langfe2057\langnp1033\insrsid3690182 \line Any of the foll}{\lang1033\langfe2057\langnp1033\insrsid16009058\charrsid4865946 owing}{\lang1033\langfe2057\langnp1033\insrsid3690182 acts on the }{ \lang1033\langfe2057\langnp1033\insrsid16009058\charrsid4865946 par t of an employee shall constitute gross misconduct and/or serious neglect and shall justify instant dismissal. \line (a) If he is guilty of misa ppropriating any funds o property belonging to the employer; \line (b) If he is convicted on a criminal charge of offence involving, on his part, the Penal Code. \line The learned Counsel contended that the use of the word \'93guilty\'94 meant that to justify dismissal under Article 28(a), an employee must have been prosecuted and convicted by a court of law, or confessed of misappropriation of his employer\rquote s funds. In the instant case, the appellant having denied the allegations against her, the respondent should have instituted criminal proceedings so as to bring the appellant within ambit of that article of the agreement. In the learned Counsel\rquote s view as evidence showed that the respondent had involved the Police C. I. D. in the alleged loss of cash by the appellant and an other cashier, L. Kamugisha, the appellant should have been dismissed only after her conviction arising from C. I. D. investigations. \line }{\lang1033\langfe2057\langnp1033\insrsid5121697 \par }{\lang1033\langfe2057\langnp1033\insrsid16009058\charrsid4865946 The learned Counsel then referred to the evidence that was adduced at the trial, and said that contrary to the evidence of the respondent\rquote s Senior Internal Auditor, Peter Rwimu, (DW1), to the effect that the appellant was supposed to remit the cash received by her to the respondent\rquote s Chief Cashier at the Head Office, in Amber House, the appellant\rquote evidence was that it was not her duty to do so. On the contrary, she had properly accounted for the money to the Cashier Production, which was all that she }{\lang1033\langfe2057\langnp1033\insrsid5121697 was supposed to do. Her duty en}{ \lang1033\langfe2057\langnp1033\insrsid16009058\charrsid4865946 ded there. It was the Cashier Production\rquote s duty to follow up what happened to the money. \line }{\lang1033\langfe2057\langnp1033\insrsid5121697 \par }\pard \s15\ql \li0\ri0\sb100\sa240\sbauto1\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\ipgp1\pararsid5121697 {\lang1033\langfe2057\langnp1033\insrsid16009058\charrsid4865946 Secondly, she had never had problems with her employers before the incident in question. In cross\emdash examination, she said that on 23rd January, 1990, the respondent\rquote s auditors checked cash and receipts in her office and informed her that she had had a cash shortage of Shs. 3.8 million and that some receipt books were missing. She explained that she entered the money in the form cheques \emdash in the register and that Cashier Production had received it. Subsequently, she was suspended on 29th January, 1990. Then on 17th may, 1990 she sent a written explanation to the respondent in her letter of th}{\lang1033\langfe2057\langnp1033\insrsid5121697 e same date (exhibit P.5). Her }{\lang1033\langfe2057\langnp1033\insrsid16009058\charrsid4865946 testimony was a summary of the explanation in the letter. \line As against the appellant\rquote s account of what happened, Rwima (Owl), the respondent \rquote s Internal Auditor, said that as a result of allegations against the appellant about loss of the money, he carried out an investigation and found a total }{\lang1033\langfe2057\langnp1033\insrsid5121697 cash shortage of Shs. 3,887,320/}{ \lang1033\langfe2057\langnp1033\insrsid16009058\charrsid4865946 =. The shortage was reflected in a receipt book of 50 receipts all of which the appellant had signed as having collected Shs. 387, 280/=. The whole of the money was not handed over because there was no acknowled gement receipt for the money. Then from another receipt book, the appellant had issued one receipt for Shs. 3.5 million as having been received. That money, too, had not been handed over. Another receipt book was also found to have been missing at the tim e of the investigation and was recovered later. The receipt books were exhibits D.1, D.2, and D.3 respectively. Rwima (OWl) compiled a report of his investigation which was admitted in evidence as exhibit 0.4. \line In cross\emdash examination, the witness said that th e appellant was answerable to th Chief Accountant. The procedure was that after the cashier kept the money until its accuracy was checked by an Internal Auditor. Thereafter, the Cashier would issue a receipt. There were two cashiers and each cashier had h is/her own receipt book and a safe and accounted for the money separately. \line The evidence of the respondent\rquote s only other witness came from Hellen Edyam Orikol (DW2), their Senior Personnel Manager concerned with the Union Agreement (exhibit D.5) which she said was in force at the material time. Her evidence was to the effect that the appellant\rquote s employment with the respondent\rquote s was governed by the agreement. \line The learned trial Judge chose to prefer the respondent\rquote s version of events to that of the appellant. On the evidence before her, I think that she was entitled to do so. Apart from the contention that she did not properly evaluate the evidence, it has not been shown how she was wrong in accepting the respondent\rquote s evidence. her findings in this regard was as follows: \emdash \line }{\lang1033\langfe2057\langnp1033\insrsid5121697 \par }{\lang1033\langfe2057\langnp1033\insrsid16009058\charrsid4865946 \'93After the summary of the submission made by the Counsel, I think there is no dispute \line that the plaintiff as an employee of the defendant and in the course of her duties received c} {\lang1033\langfe2057\langnp1033\insrsid5121697 ash amounting to Shs. 3,870,280/}{\lang1033\langfe2057\langnp1033\insrsid16009058\charrsid4865946 =. It is also not disputed th at the said amount of money was not received by the defendant hence, the plaintiff\rquote s dismissal. The question is whether this money was }{\lang1033\langfe2057\langnp1033\insrsid5121697\charrsid4865946 misappropriated}{ \lang1033\langfe2057\langnp1033\insrsid16009058\charrsid4865946 by the}{\lang1033\langfe2057\langnp1033\insrsid5121697 plaintiff and theref}{\lang1033\langfe2057\langnp1033\insrsid16009058\charrsid4865946 or defendant was entitled to }{ \lang1033\langfe2057\langnp1033\insrsid5121697 instantly dismiss her in }{\lang1033\langfe2057\langnp1033\insrsid16009058\charrsid4865946 accordance with article 32 (supra) (sic). The evidence of the plaintiff is that her duties ended when she handed the funds collected to the cashier Production. This Cashier Production would sign for the money and she claimed that this was done. There was no evidence to prove thi s. On the othe}{\lang1033\langfe2057\langnp1033\insrsid5121697 r hand, the evidence of Rwima (D}{\lang1033\langfe2057\langnp1033\insrsid16009058\charrsid4865946 Wl) who carried out the audit exercise clearly stated that each cashier was responsible for accounting for the money col}{\lang1033\langfe2057\langnp1033\insrsid5121697 lected. In his report (exhibit D}{ \lang1033\langfe2057\langnp1033\insrsid16009058\charrsid4865946 .4) he checked on the two cashiers - the plaintiff and Kamugisha. Each had hi}{\lang1033\langfe2057\langnp1033\insrsid5121697 s/her receipt books \emdash (exhibit D.1 and D}{ \lang1033\langfe2057\langnp1033\insrsid16009058\charrsid4865946 .2), the Audit Department after checking the accuracy of the money collected directs the Chief cashier (in Amber House) to receive the cash. In those two receipts no money was received because the p laintiff did not hand it over. The plaintiff both in her evidence in court and her written explanation, put all the blame on Kamugisha (Cashier Production) yet according to Rwima\rquote s report, both were receiving cashiers from sales and receipts. I accept Rwima\rquote s evidence that each cashier was responsible to account for the money collected and the plaintiff failed to account for the money which led to her suspicion and subsequent dismissal. The arrangement which the plaintiff relied upon and which her Counsel s tressed during the course of the summing up the case must have been an internal arrangement between Kamugisha arid the plaintiff and it did not absolve her from her duties in my opinion. Taking into account the facts, the evidence and the circumstances of this case, it is my finding that the dismissal was justified\'94. \line }{\lang1033\langfe2057\langnp1033\insrsid5121697 \par }\pard \s15\ql \li0\ri0\sb100\sa240\sbauto1\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid5121697 {\lang1033\langfe2057\langnp1033\insrsid16009058\charrsid4865946 Regarding Article 28(a), I do not, with respect, agree wit}{\lang1033\langfe2057\langnp1033\insrsid5121697 h}{\lang1033\langfe2057\langnp1033\insrsid16009058\charrsid4865946 the construction given to it by the learned Counsel. I do think }{ \lang1033\langfe2057\langnp1033\insrsid5121697 that an employee must have first been convicted in a court of law before that article can apply to him or her. The parties to the agreement must have intended that an employee\rquote s guilt in that respect was ascertained by the respondents in accordance with their established procedure. If it were not so, Article, 28 (b), which refers to an employee\rquote s being convicted on a criminal charge before court, would have been superfluous. It would have been a duplication of Article 28(a) as interpreted by the learned counsel.}{\lang1033\langfe2057\langnp1033\insrsid14830933 \par }{\lang1033\langfe2057\langnp1033\insrsid5121697 In the instant case an investigation by the respondent\rquote s inte rnal auditors established that the appellant did not account for their funds which she had received in the course of her duties. Accordingly, her conduct amounted to misappropriation of funds, of which she was therefore, guilty. Accordingly, Article 28 (a ) was applicable to her. \par For reasons given, I think that the first ground of the appeal must fail. That also disposes of the second ground consideration of which does not arise in the circumstances. \par In the result, I would dismiss this appeal with costs and uphold the judgment of the lower court. \par Dated at Mengo this }{\lang1033\langfe2057\langnp1033\insrsid8523718 31}{\lang1033\langfe2057\super\langnp1033\insrsid8523718\charrsid8523718 st}{\lang1033\langfe2057\langnp1033\insrsid8523718 }{\lang1033\langfe2057\langnp1033\insrsid5121697 date of }{ \lang1033\langfe2057\langnp1033\insrsid8523718 December }{\lang1033\langfe2057\langnp1033\insrsid5121697 1993 \par }{\lang1033\langfe2057\langnp1033\insrsid8523718 A. H. O ODER \par JUSTICE IF THE SUPREME COURT \par \par }\pard \s15\qc \li0\ri0\sb100\sa240\sbauto1\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid8523718 {\b\ul\lang1033\langfe2057\langnp1033\insrsid8523718\charrsid8523718 JUDGMENT OF ODOKI J. S. C}{ \b\ul\lang1033\langfe2057\langnp1033\insrsid8523718 \par }\pard \s15\ql \li0\ri0\sb100\sa240\sbauto1\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid8523718 {\lang1033\langfe2057\langnp1033\insrsid8523718\charrsid8523718 I have had the be}{ \lang1033\langfe2057\langnp1033\insrsid8523718 nefit of reading in draft the judgment prepared by Oder JSC and I agree with it. \par \par Dated at Mengo this 31}{\lang1033\langfe2057\super\langnp1033\insrsid8523718\charrsid8523718 st}{\lang1033\langfe2057\langnp1033\insrsid8523718 of December 1993 \par B. J ODOKI \par JUSTICE OF THE SUPREME COURT \par \par }\pard \s15\qc \li0\ri0\sb100\sa240\sbauto1\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid8523718 {\b\ul\lang1033\langfe2057\langnp1033\insrsid8523718 JUDGMENT O}{ \b\ul\lang1033\langfe2057\langnp1033\insrsid8523718\charrsid8523718 F MANYINDO DCJ}{\b\ul\lang1033\langfe2057\langnp1033\insrsid8523718 \par }\pard \s15\qj \li0\ri0\sb100\sa240\sbauto1\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid8523718 {\lang1033\langfe2057\langnp1033\insrsid8523718 I read the judgment of Oder, JSC in draft. I agree with it and as Odoki, JCS also agrees, the appeal is dismissed with costs here and in the High Court. \par \par Dated at Mengo this 31}{\lang1033\langfe2057\super\langnp1033\insrsid8523718\charrsid8523718 st}{\lang1033\langfe2057\langnp1033\insrsid8523718 day December 1993 \par S. T MANYINDO \par DEPUTY CHIEF JUSTICE \par }{\lang1033\langfe2057\langnp1033\insrsid8523718\charrsid8523718 \par }}