[2000] UGHC 59


#### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

## CIVIL SUIT NO.450 OF 1997

PETRA NAKIRANDA PLAINTIFF

#### VERSUS

B. A. T. UGANDA 1984 LTD. DEFENDANT ⁵ BEFORE: THE HONOURABLE MR. JUSTICE J. P. M. TABARO.

# JUDGMENT:

Patra Nakiranda the plaintiff brought this suit against B. A. T. 10 (Uganda) 1984 Ltd the defendant. following the termination of her employment with the \* defendant. She was employed as the company's finance superintendent. She was designated accounts superintendent. By letter dated the 23rd December 1996 the plaintiff was relieved of her employment with the defendant 15 company. The letter (Exhibit P.4) contains the reasons advanced by the defendant for termination of the plaintiff's services with the defendant. It is convenient may, imperative to reproduce the directly relevant contents of the letter The relevant parts of the letter, is so far as they affect the suit, are in these 20 issues:-

> Our internal investigations have confirmed that you lied to ⁿ management throughout the investigations of the fraud case you were suspended for. Further more it has been established

that you negligently passed on important documents to your juniors which culminated in the fraud of the Shs.6 million. You are also reputed to have contravened a Company Standing Instruction on three occasions during the fraud ⁵ investigations by entering the Plant outside working hours with unauthorized visitors without registering your presence in the Security Books which is rather suspicious".

The letter of termination is signed by the defendant's Personnel 10 Manager C. B Mukadisi (DW2). The plaintiff (PW1) was offered. on termination, three months salary in Lieu of Notice, totalling Shs.1.977,168/ (the monthly rate was Shs. 659,056/ = ) , cash in lieu leave and pension Both parties agree that the pension scheme benefits were not yet ascertained the 15 time of termination. supposed to be communicated subsequent to the termination. In this suit the plaintiff challenges the legality of the termination and contends that she was unlawfully dismissed by the defendant. In her pleadings, from the plaint, she avers that her services 20 were wrongfully terminated as she had committed no offence and the allegations against her of collusion in fraud were unsubstantiated; hence the C. ^I . ^D . found no merit in them and cleared her. She therefore contends that she is entitled to general damages for wrongful termination of services. Her appeal to the defendant'^s 25 Managing Director was rejected by management. The benefits, from the pension scheme were of one annual scheme benefits.

From the evidence for both parties it is fairly clear that the case must stand or fall by what cheque for payment of pension benefits for one Margaret Equal in respect of her deceased husband, who presumably was an employee of ⁵ BAT, the defendant, at one time. It would appear a cheque for the payment of her benefits had been made payable in Kampala but because she had no account herein she preferred a cheque payable at Gulu The cheque payable at Gulu was supposed to be canceled. The plaintiff's account as to whether the cheque was 10 canceled, and if so where it was kept, differs fundamentally from the version given by the defendant's witness. took place in connection with a or not

*I 0*

According to the plaintiff (PW1) the cheque was stolen and cashed. She (PW1) testified" that when she was reconciling bank statements 15 figure that was not in the books of the company. Since the figure was not in the books of the company, the computer rejected it. She alleges enacting the payments register book she established that the amount of money represented on the cheque had been canceled from the register of payments and 20 the payment voucher was missing. Accordingly she (PW1) alleges that the anomaly was reported to Joseph Ddibya (DW1) her immediate superior. Joseph Dibya is the financial accountant. The plaintiff further alleges that it is the cashier who is in-charge of payment vouchers and payments register. Thereafter, after 25 discovery of the discrepancies in the company accounts, it is not in dispute that*,* the matter was reported to the C. I. D. and she came across a that after

investigations ensued. During the course of investigations, according to the letter of termination, the plaintiff (PW1) was accused of lying and visiting the company premises outside authorized hours. also accused of lying and passing on 5 cover She was up the cheque fraud, it will be recalled. documents to junior staff so as to facilitate or

*a*

The defendant's version was given by two witnesses. Mary Kigundu (DW1) (D. W. II)*,* the letter as already 10 printed out ^z being the human resources manager for the defendant Mary Kigundu (DW1) is the financial accountant for the defendant. She gave testimony that around 4th October, 1996 it was time for reporting the financial statement of the company to London headquarters when the plaintiff reported to her that there was an 15 item which was not matching. According to the witness (DWI) the plaintiff did not name the item that was not tallying. She (DWI) alleged that cancelled cheques are kept in a file for such cheques and that the file was supposed to be kept by the plaintiff herself but not the cashier. From the bank statement Mary Kigundu (DWI) ²⁰ was able to tell that the cheque in question had been cashed, although in the cheques book , having been cancelled. Mary Kigundu asserted that the plaintiff suggested to her that ^a replacement voucher should be made, a proposition she rejected because according to hei version of events this would be >5 tantamount to ^a cover up of the fraud. Consolata Mukedisi gave an account of the investigations that were carried out before ^a it was labelled as and Consolata Mukedisi

decision was taken to suspend the plaintiff, and eventually to terminate her. According to Consolata Mukadisi the investigations by the company were conducted by herself, the company secretary and the security manager. According to her (D. W. II.) the canceled cheques file should not have been passed to anyone junior to her the file which was used because it is to facilitate the perpetuation if the fraud company in which the lost Shs.6.000,000/= (Shillings six million). By deposing that she (plaintiff) discovered the fraud whereas in fact the discovery was made by the computer operator and Marv Kigundu. she was misleading management.

$\mathsf{S}$

$10$

It is now a well established principle that master is entitled to summarily dismiss a servant who is guilty of a serious breach of 15 duty amounting, in effect, to a repudiation by the servant or employee, of his contract of employment, such as disobedience of misconduct, drunkenness, lawful orders, incompetence and negligence - ELETU V UGANDA AIRLINES CORPORATION [1984] HCB 39, MANYINDO J (as he then was, a decision of the High Court of $20$ Uganda, a principle approved in BARCLAYS BANK OF DUGANDA v GODFREY MUBIRU, Civil Appeal No.1 of 1998, decision of the Supreme Court of Uganda. In the present case we are concerned with The evidence shall be analysed diligently so as to misconduct. establish whether or not the plaintiff was guilty of any misconduct in connection with the cheque in question to justify termination of 25 her employment with the defendant.

$\mathsf{S}$

It is unfortunate that the defendant company's cashier was not called by either side to testify as to whether or not he was supposed to keep the file in which the canceled cheque was expected or supposed to be kept after canceled. From the testimony from both sides it would appear, in fact, that the cheque which was meant to be canceled was in fact cashed in a word it was used to defraud the defendant of Shs.6,000,000/=.

$\mathsf{S}$

The computer operator for the company was not produced as a $10$ witness either/whether by the plaintiff or the defendant. The computer operator who saw the item being rejected would have been to tell who first noticed and to whom such an anomaly should have been reported It will be recalled that Mary Kigundu (DW1) alleges that the plaintiff (PW1) reported the rejected item without naming 15 or specifying this rejected item that was not tallying.

The plaintiff (PW1) was the sole witness for her side. I am alive to the provisions of S.132 of the Evidence Act (Cap 43 Laws of Uganda) to the effect that no particular number of witnesses $\overline{as}$ $20$ required to establish a proportion unless corroboration is legally prescribed. However, in this connection I find it imperative to point out the assertion by Mary Kingundu that the plaintiff suggested to her that a replacement voucher for the cancelled Mary Kigundu (DW1) alleges that she (DW1) cheque be made. rejected the proposition because it would be tantamount to a cover $25$ up of a fraud. This aspect of the defendant's version has not been

$\mathsf{G}$

rebutted by the plaintiff's evidence.

It is trite, almost axiomatic that in a civil decision such as the one before the onus to establish ⁵ a balance of probabilities. The plaintiff is legally required to establish by credible evidence that it is more probable than not that she played a role the fraud in question. ^I have already remarked that significant and highly damaging assertions against the plaintiff's case have been made by 10 the defendant's side, especially by Mary Kigundu who averment that the plaintiff wanted her to fabricate a voucher so as to cover up the fraud in issue. the case is on the plaintiff, on in the perpetuation of

Under 0.16 r. 12 of the Civil Procedure Rules (CPR) it is provided 15 that the court may at any stage of the suit recalls any witness who has been examined, and may, subject to the law of evidence for the time being in force put such questions to him as the court thinks fit. In my humble view the plaintiff through her counsel, could have invoked this provision of the Civil Procedure Rules to apply 20 for recalling the witness (PW1) and examine her on new matters raised in the testimony of the defendant's witness.

the defendant'^s witnesses ^I find it impossible to the plaintiff has 25 established that she was wrongfully terminated On the evidence available ^I find fit more probable than not that the plaintiff had In view of unrebutted evidence given by the say that

By virtue of this finding no question of assessment of general damages arises. The claim for general damages for wrongful dismissal is therefore dismissed with costs. ^a hand in the fraud in which the defendant lost Shs.*6*,000,000/=.

During the contract of employment with the defendant company the plaintiff obtained a housing loan from her employer and deposited with the defendant as security in the loan of Shs.9,000*,* 000/=. The title deed would 10 appear to be KIBUGA BLOCK 185 Plot 759 Kyadondo according to the testimony given by the plaintiff. From the plaintiff's evidence and that of Mary Kigundu (DW1) it is sufficiently proved that by the time of termination after set off. that is deduction of the outstanding installments under the Housing Loan Scheme, from her 15 terminal benefits plaintiff - owed Shs.814,000/= to the defendant. She is ordered to pay the sum of money (Shs.814000/=) to the defendant. It is not in dispute, according to the Company Regulations governing the loan question and terms of employment, that on leaving employment with the company benefits are used in 20 setting off outstanding installments. On payment (Shs.814,000/=) the defendant shall surrender the land title in a land title was subsistence of her of the money

issue to the plaintiff. To this extent the counter claim succeeds.

⁵ J. P. M. TABARO JUDGE. 26/5/2000

26/5/2000:

10 Plaintiff in court Mr. Ntuyo Kafuko for the plaintiff.

Ms. Dorah Adroma for the defendant.

Holding brief for Dr. Byamugisha.

15 Judgment delivered.

J. P. M. TABARO

JUDGE.

²⁰ 26/5/2000.