[1993] UGHC 58

Hon. Mr. Justice Egonda Ntende THE REPUBLIC OF: UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPaLA

## CIVIL SUIT KO. 28'^t OF 1992

BESIGIROMUGISHA TELES B. I::::::::::::::::: PLAINTIFF VERSUS-

UuANDA AIRLINES CORP. :::::::::::::::::::::: DEFENDANT BEFORE: The Honourable Mrs. Justice in. Kireju

## JUDGEMENT

The plaintiff Teles Besigiromugisha brings this action against Uganda Airlines Corporation claiming his redundancy benefits, earned salary, loss of income and return of his property from Cologne Germany.

Mr. Kiwuwa appeared for. the plaintiff, Mr. Ssekandi . ^w appeared for the defendant.

<span id="page-0-0"></span>The brief facts of this case are that the plaintiff who was an employee of the defendant company was on 7/9/88 posted to Cologne as Ag. Area Manager/Station Manager and • was to receive a salary and benefits attendant to that job as per appointment letter, Annexture 'A^T to the plaint. His employment contract was to be in accordance with the terms and conditions of service of the Airlines:- Annexture ' B' & 'C' to the plaint. He took up his duties in Cologne until ¹⁹⁹¹ when he was recalled to Kampala. Plaintiff stated that under t.he terms conditions of service the defendant was responsible for i.vansporti.ng bis properties back home. Before t.he plaintiff could gel. his properties back, he was declared redundant with effect from 1/8/91, and he was pr^.nic 'd to be paid redundancy benefits of which Shs. 2\*[3](#page-0-0)7^)79.5 is suill outstanding.

The plaintiff claim against the defendant is Shs. 2,374,793 redundancy benefits '.nth interest at 38% effective from 1991, earned salary and allowances amounting to DM 14,831.17 with interest effective June ¹⁹⁹¹ and return to him from Cologne of his motor vehicle peugeot 305 valued at £ 12,000 GIF Kampala and motor cycle plus household equipment totalling \$ 13,000= ar.d damages for loss of income as a result of non use of his monies and properties \* In its written statement of defence the defendant

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admitted that the plaintiff was declared redundant but his compesation could not be paid until he had produced income tax clearance. The defendant disputed the claim for unpaid salary and allowances of DM 14,831 • 17 with regard to property left in Cologne the defendant pleaded that the plaintiff is only entitled to freight charges co bring them back but not to the value of the properties.

At the commencement of the-hearing consent judgement was entered in respect of some of the claims as follows:- (l) The plaintiff to be paid redundancy benefit amounting to Shs. 2,374,793/= subject to income tax deductions.

Interest at court rate from August, 1991.

(2) The plaintiff to be paid earned salary equivalent to DM 14,831.17 subject to taxation if any, Interest at court rate from June, 1991.

The following issues wet \*.- framed in respect of the other. remaining claims

(1) Whether the plaintiff is entitled to the property or its value he alleges to have left in Cologne or freight cha-gcs.

(2) whether the plaintiff is entitled to general damages from the defendant if so how much.

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The plaintiff gave evidence in support of the above issues, the defendant did not call any evidence but made submission at the close of the plaintiff's case.

The plaintiff testified that in June 1991 he was transferred from Cologne to Kampals and he handed over all. the things including accountable documents to Uganda's Ambassador in Bonn. He complained that his stay in Cologne was hard as his salary was not being paid on time. He testified that when his property came in October, 1992 some of the properties were missing namely:-

| 1 tea set purchase pri e DA 379.29 | | |-----------------------------------------------------|-----------| | 1 Iron board purchase price $\ldots$ DM 49.9 | | | 1 heavy duty trolley purchase price DN 69. | | | 1 leather brass rim ice backet purchase price 59. | | | 1 set of glasses purchase price | DM $38.$ | | 1 executive hard plastic suitcases price DM $348$ . | | | 1 pair of double bed sheets purchase priceDM 60. | | | 1 Puma track suit purchase price | $D_i$ 49. |

He testified that he did not know where the missing properties were because he had left them in the house. However, he got a message saying that the handling agent was to sell his property in order to recover his money which was not paid when he handled the plaintiff's property. The fax massage was addressed to Interfreight (Forwarders) Ltd. dated 26/3/92 it was from Interfreight Panalpina. It was requesting the addressee to pass on a message to the plaintiff that the packing company would auction part of removals to methle at least the expenses incurred in November, 197 and the storage charges up to the date of the fax. The fax was tendered in court as Exh. P.1. $.../4...$

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«.fter getting the fax the bill was settled by Uganda Airlines and therefore the property could not have been sold to settle the freight charges. He testified that he left the vehicle parked in the embassay compound., It is a ⁵⁰³ pougcot estate he paid ft ⁶⁰⁰⁰ for it, he said that if you add money for shipment the car may now be valued at ft 12.000. He further testified that in August, ¹⁹⁹² the controller of Finance Uganda Airlines had authorised the Embassay in Bonn to pay DM 38OO to freight the vehicle,Interfreight asked for DM ²⁰⁰ or ft 13^ to ferry the vehicle but later the defendant instructed the embassay to use the money to ferry its own property.

'He said that if the vehicle is' till there he would like- to have it. He therefore requested court to order the defendant to bring his vehicle within ² months and also for general damages because of the embrassing life he has been living and cost of the suit.

In cross examination, he further testified that he had bought the properties he was claiming between 1983 and 1990, and they were therefore second hand. He said that although he did not have receipts, the value quotedis what he- paid for them. He testified that when he was recalled in June, 1991 his landlord court not allow him to remove his things from the house since he had not paid rant since April, 1991 \* He therefore left his things unattended although he was supposed tr r.nud them over to s»mvr'nc= Crv -safe custody. »ij\_.'.h regard to tna vehicle r;-? said he bought it second hand ir. 1989, it was 19^6 model. ne said that ho did not

value the vehicle before he left. He said that its value the in 1991 could be less or more than cost price depending on how it was handled. He said that he has suffered because his redundancy money was not paid to him when it was due, he has had problems paying his rent and he can not borrow money from the banks as he is not credit worthy.

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Mr Ssekandi submitted on the first issue that the plaintiff has failed. to cotablish the basis on which he claims that the defendant should have brought his property from Cologne. He submitted that although the plaintiff attached a copy of their terms and conditions of service of the defendant to the plaint, that this was not enough that the plaintiff has to adduce evidence to establish $\boldsymbol{\alpha}$ legal-oldigation contractual or otherwise. With regard to rent, he submitted that the plaintiff has not told court who was supposed to pay rent, that even if his employer was supposed to pay rent the claim for his non payment of rent is a different cause of action from the present one. The present claim was that the defendant failed to airlift his goods and as a result they got lost. Counsel further submitted that since the plaintiff was not a privy to the contract between the defendant and the landlord he should not have allowed his personal property to be impounded.

Counsel submitted that the loss of property was caused by the landlord and therefore the defendant cannot be held liable. Councel submitted that there was no evidence to assess the value of the property as the value of the property given by the plaintiff were those of new property whoreas these properties wer weed A hand. Counsel also submitted that the plaintiff has given any evidence as to the current value of the vehicle

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and has not even stated how much is involved in bringing vehicle from Germany to Uganda.

It is true that in his evidence the plaintiff did not lay a legal basis for his claims. However, I agree with the submission by counsel for the plaintiff that the defendant having agreed to pay the redudancy benefits and the arroars of salary to the plaintiff it was not really necessary to adduce evidence to show that the plaintiff was an employee of the defondant and subject to the terms and conditions of employment of the corporation. Although the letter of appointment and the terms and conditions of services were not produced in evidence but they were attached to the plaint and defendant did not appear to dispute them. I have therefore found that although the plaintiff did not produce evidence to show the basis for his claims against the defendant, these are facts which were within the knowledge of the defendant as an employer of the plaintiff, and as such the defendant has not been prejudiced. This arguement by counsel for the defendant appears to be purely academic. It is clear from Annexture 'C' to the plaint - Terms and conditions of service for Uganda Airlines Corporation Employees (Uganda Nationals Posted Outside Uganda) that the defendant correction was under duty to freight his household goods back to $\upsilon_{\mathbb{G}^2}$ and within the kilograms allowed. The defendant was also responsible for paying rent for the plaintiff according to the terms and conditions of service.

The plaintiff's case with regards to the first issue is that because the defendant did not pay went the landlord, refused to release his property and this resulted to loss of some of them. From the torus of service it is clear that the decendant corporation was only responsible for freight $...$ $17...$

charges of the property. These freight charges were paid and some of the plaintiff's property arrived in Getober, 1992 although some were missing. From the evidence of the plaintiff himself the handling agent appointed by the landlord did not sell some of the properties as the was threatening to do because he was paid his money by the defendant. However, I must say that this new claim by the plaintiff that his property got lost because the defendant had failed to pay rent to the landlord is a new pleading. The plaintiff after finding his properties missing in October, 1992, did not find it necessary to amend his plaint which he had filed in April, 1992. I agree with counsel for the defendant that the issue of non payment of rent is new and the defendant is being taken by surprise. It is possible that the defendant paid rent to the landlord and therefore it was not necessary to impound the plaintiff's properties. The plaintiff himself did not adduce evidence to prove that the landlord had actually taken his property to reimburse himself for rent. I have therefore found that the plaintiff has failed to prove on balance of probability that the defendant is responsible for the loss of the missing properties and therefore liable to compesate the plaintiff. The defendant was only liable to forry the plaintiff's goods'back to Kampala. However, if the plaintiff had proved his case I would have awarded special damages equivalent to the price quoted by him minus 10% these properties were all second hand.

with regard to the motor venicle the plaintiff told court that he paid \$ $6000$ for it in 1989 and he estimated the value of the vehicle C. I. F. Kampala to be $\frac{1}{2}$ ,000/=. $... / 8...$

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However, no evidence was adduced to support those zigures. The plaintiff said he would like tc have- his vehicle although he did not quote how much it would cost to ferry It to Kampala. I am of the considered view that what the plaintiff is entitled to is to get his vehicle back. I shall therefore oraor the defendant to ferry the plaintiff's vehicle to Kampala within ² months from rhe date of judgement.

With regard to general damages the plaintiff has testified that because of the delay to bo paid his salary, v.nd redudancy money he has suffered a lot financially as ho can not meet his financial pbligations like rent and electricity bills. Counsel for the defendant argued that the plaintiff is not entitled to general damages because the salary and redudancy money carries an interest. I agree with counsel for the plaintiff that although, the plaintiff is being paid interest on the redudancy money and salary, he should still be paid general damages because of the hard and embarrassing life he has had to endure because of delayed payment of these funds. The plaintiff once an Area Manager, with family and children to look ai'u-r has been humiliated and has had to live in this financial embarrassing situation. I would therefore award the pl.-inci? general damages of Shs. » ne and half million Js. 1, >00,000/=

I have therefore found that the plaintiff has proved his case against the defendant on balance of probability -.nd '• ^u is entitled to the fol] owin'- r^medi^s in addition to those a5 ready consented 10 *n,*

- *9* - (l) The defendant shall pay for freight charges to bring the plaintiff's car from Germany to Kampala within *2.* months from the date hereof. - (2) The plaintiff to be paid general damages of shs 1/2 million. - (3) Interest on (2) above ar court rate from the date of judgement until payment in full. Costs of the suit to the plaintiff.

M. KIREJU

JUDGE 3/5/199.3