[1993] UGHC 34

## THE REPUBLIC OF UGANDA

IN THE EIGH OUGH OF USANDA AT KAMPALA

CT/II SUTT Nº 105/93.

WILSON NUMBERGIZE CONTINUES OF THE CONTINUES ON NUMBERGIZE CONTINUES ON NUMBERGIZE

## **VERSUS**

NATIONAL WATER & SLWEIGHED COLP. :::::::::::::::::::::::::::::::::::: THE HONOURAELE MR. JUSTICE F. M. S. EGONDA-NTENDE, BEFORE:

## JUDGEMENT:

The Plaintiff brings this action to recover special and gene. damages for wrongful and premature retirement of the Plaintiff the Defendant on or about the 4th March 1992. Most of the facts in this case are not in dispute. The Plaintiff was the only witness in the case as the Defendant offered not to call any witnesses. The Plaintiff testified that he saw an advertisement in the People Newspaper of 14/2/72 for the post of Senior Accountancy Assistant in the service of Kampala and District Water Board. He applied for the post, was interviewed and subsquently awarded the job. He continued to hold the same job when Kampala District Water Board ceased to exist and in its place the present Defendant was born.

On or about 4th March 1991 the Plaintiff was suspended from his post after being charged with attempted fraud in Criminal Case No. U.841/90 at Buganda Road Court. These charges were subsquently withdrawn by the Director of Public Prosecutions for lack of sufficient evidence.

After the withdrawal of the criminal charges against the Plaintiff, he notified the Defendant immediately and he peopleved a : response, dated 7th March 1992, which states:-

> "Mr. Wilson Nuwemugizi N. W. S. C.

Reistantment and Retirement. At its meeting held on 27th February 1992 the Board of Directors decided that you be reistated on duty with effect from 4th March 1992.

lhe Board however^ also advised that since you have already attained voluntary retirement age you be asked to retire with effect from 4th March ¹⁹⁹² and be ^p ^a \* ^d f' ¹¹ t ? ref\ +\* :

r ? j *^z 'O"* r^j a'.r.t. YE.'-'at of ³ months in lieu of novice will be made to you. You will also be paid your full emoluments from 8th March ¹⁹⁹¹ when you weresuspended\*

## H. O. ONEK managing dipectoh."

t'n z-eciept of this letter the Plaintiff states that he wont to talk co jhe Managing Director who told him that what was contained in his j.ettoi of ⁴ th March ¹⁹⁹² was a board decision. The Plaintiff did nov object either verbally or in writing. ^H^e accepted all his dues, arrears of salary while on suspension, gratuity, other retirement benefits including transport in addition to 3 months salary in lieu • ^> . of J months notice.

Subsquently.y the Plaintiff brought this action alleging that he had been compulsorily retired before he attained the compulsory X'etitrement age of 55 ^j as at the time, he was only 52 years and ⁴ months old® He therefore claimed special damages in the sum of shst8,549T395/= being basic salary, consolidated allowance, lunch allowance, **transport** allcftsxce\* reaponaibility allowance, housing allowance, unexpired premium and additional pension for period between June 1.992 and October 1994. In addition he claimed general damages for wrongful dismissal and suffering due to unemployment as well as interest on the above sums.

⁵ issues were framed at the commencement of the trial^t These are;- ¹ • Whether the Plaintiff voluntarily retired.

2. Whethex the contract of service was lawfully.terminated.

3. Whether there are any damages available to the Plaintiff.

$H$ is the convention of the Plaintiff that he was compulsorily retired chile the Defendant or tends that the Plaintiff was asked to reductarily retire and he accepted to do so without protest and took all his dues from the Defendant on that account. Us or the condition; of service of the Defendant "Retirement" is Patiened aus-

> "Leans permanently living the service of the Corporation -i the age of 55 years, or at such eurlier age as may be approved by the Corporation. or at an age prescribed by the rules of a retirement henelits scheme approved by the Corporation and under which the employee is a contribucor.

Regulation 123 of the conditions of service in part provides:-

"The voluntary retiring age of permanent and pensionable officers shall be 50 years, and the compulsory retirement age shall be 55 years."

Counsel for the Plaintiff argued that there was an omission in the $\sim$ defendants conditions of service as regards application for retirement and that under Regulation A.8 the Government Standing Orders

should be applied.

$\alpha^*$ $\bullet$

$-$

$\therefore$ Regulation A.8 provides:-

"If any matter arises which is not covered by these regulations the relevant Government Standing Order shall be applied....."

This was opposed by counsel for the Defendant who argued that there

was no omission at all.

In my view, once the conditions of service of the defendant abstantively provide for a matter there should be no recourse to Government Standing Orders even on alleged matters of procedure as the matter would be "covered" by the conditions of service. In the present case, there is substantive provision for retirement in the conditions of service and there is no need for any recourse to the Government Standing Orders. It is not in dispute that the Plaintiff permanently left the service of the defendant at the age $\frac{1}{2}$

05 SS years and 4 months. He alid so locause the Board of Directors of the lefendant advised him to retire and he verbally accepted is ore the Managing Director. We accepted payment of all his dues without any verbal or vertice protest. In the circumstances, I am and to agree with the defence that the Plaintiff voluntarily accepted to retire and permanently left the services of the defendant. in the result the answer to issue No.1 is in the affirmative and this disposes or the Plaintiffs claim.

Nevertheless, I will proceed and consider the second issue, which is, whether the contract of service was lawfully terminated. In one aspect, this issue is more or less a repeat of issue No.1. the conclusion to issue No.1 is that the Plaintiff voluntarily retired, then the contract of service was lawfully terminated. It was lawfully brought to an end.

It was not the case for the Plaintiff that this was a contract of service for a fixed period during which it could not be terminated. The case for the Plaintiff was that termination of the Plaintiffs contract of service could only be by 3 months notice which was not given in the instant case. He submitted that payment of 3 months salary in lieu was not sufficient. At the same time or usel for the Plaintiff submitted that there was an omission in the conditions of service with regard to Regulation % (b) thereof as it did not provide for assignment by the employer of any reasons for termination. He argued that we had to have recourse to the Povernment Standing Orders which provide for assignment of reason in case of termination of employment.

Regulation 90 (b) of the conditions of service provides:

"An officer confirmed in his appointment may resign only after he has given three months notice to the Corporation, or such ether lesser period of notice as may be agreed by the Corporation in exceptional circumstances. The Corporation may terminate such appointment by a minimum of three months written notice."

$...5$

In my view, this provision Covers the termination of service by no lice and there is no new, for recourse to Government Sarling Orders. By virtue of Regulation 90 (b) no reason seed be essigned by any lacty to the command.

Counsel for the Defendant argued that on termination of carvice no reason whatsoever need be assigned. 3 months motioe or payment of salary in lieu thereof is sufficient. He referred this Court to the cases of

1. John Okob Otto - $v_5$ - J. J. B. 1931 / H. C. B / 52 2. Dan Lutalo Kiying: $-vs-$ N. I. C. 1935 / H. C. B 7 41.

In the case of John Olot Otto -vs- U. E. B. it was, inter alia, Aeld that it is trite law that a master may terminate the contract with his servant anytime and for any reason or for none.

In Dan Lutalo Kiyingi -vs- National Insurance Corporation the Plaintiff was abruptly dismissed without a hearing. It was held that any employer has an inalienable right to dismiss his employee subject to the provisions of any contract of service between them. In that case NIC was far from satisfied with the way in which the Dointiff was performing his duties in the legal division. Under their staff regulations the NIC was empowered and entitled to t mainate his employment in such circumstances and so to that extent the Plaintiffs dismissal could not be said to be wrong the It was the Plaintiffs method of dismissal which was wrong but net actual termination of services. He should have been given notics and benefits.

In the instant case were we to hold that the Plaintiffs retirement was not voluntary, would the termination of his aervices that occured be said to be wrongful? The Plaintiff was paid all his benefits by his own testimony. He was paid 3 months salagy in lieu of notice which in my view is the generally accepted method of avoiding notice. In any case, section 24 (3) of the Employment Decree sanctions such a course of action. It provides:

$16$

"Notwithstanding the provisions of subsection (2) or this section, an employer or an employee may in lieu of the notice, pay to the other party a sum of money equivalent to wages of the days of the relevant notice."

I therefore find that the Plaintiffs services were terminated Mawfully. He is not entitled to any claim against the defendant. The said is recordedly disabased with costs.

Junio Francisco

$\mathbb{L}$ . M. S. EUDNDA-NTENDE JUDGE $\epsilon/ \epsilon / 1993$ .

$8/6/1993$ $9:00$ a.m.

Present

$\mathbb{R}^{\mathbb{Z}_{\geq 0}}$ - 端 -

$\mathcal{L} = \mathcal{L} \mathcal{L} \mathcal{L}$

$\cdots:$

Mr. Nuwemugizi - Plaintiff. Ssesonga - Court Clerk. Judgment delivered.

manifunnis (f.

F. M. S. EGONDA-NTENDE J U D G E $8/6/1993.$