[2002] UGHC 140

### THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA

### HCCS NO 301 OF 2001

### DOREEN RUGUNDU.................................. **VERSUS**

# INTERNATIONAL LAW INSTITUTE..................................

# BEFORE: THE HON. AG. LADY JUSTICE F. MWONDHA

#### JUDGMENT

The plaint ff in this suit brought an action against the defendant a Registered Non Governmental Organisation for breach of contract The brief facts giving rise to the cause of action were that the plaintiff was offered a job in the position of to the Executive Director/Asst Marketing Manager upon Special Asst Successful interview By a letter written on 28.7 2000 the defendant confirmed Lange D. The $\frac{1}{2}$ the appointment with the terms of the contract $\frac{1}{2}$ the appointment with the terms of the contract $\frac{1}{2}$ the appointment with the terms of the contract $\frac{1}{2}$ the appointment with the terms of the co 2001 subject to the plaintiffs acceptance The copy of the December confirmation letter was tendered as Exhibit and marked Ex P1. The plaintiff sent the acceptance. The plaint further claims that the contract was executed by the acceptance of the plaintiff the period of employment beginning from $3^{\prime\prime}$ January to 31^st December 2001 That the defendant in breach of that contract repudiated the same on the 29.8.2000 which resulted into wrongful dismissal of the plaintiff That the plaintiff tried to find out any explanation for this repudiation but all in vain. The plaintiff stated in the plaint that she suffered loss and damage as a result of the defendants breach. She prayed for both special and general damages and particularized the special damages

$10$

At the hearing there were undisputed facts as shown on the record of proceedings. Some outstanding agreed facts were that the plaintiff was offered appointed. To the job of Asst Marketing Manager with effect from 3^rd and January 2001 and the same was executed after the plaintiff had accepted the That on 29.8.2000 the defendant informed the plaintiff that her services offer were no longer required. That when the lawyers wrote a letter to the defendant threatening court action for damages for breach of contract, the lawyers of the defendant wrote to her saying that she can commence work as per the contract which the plaintiff turned down. That the defendants lawyer wrote to the plaintiffs lawyer informing her that she had failed the defendant by the refusal to commence work

The issues were agreed as follows

So who breached the contract<br> whether the defendant mitigated the breach if at all<br> (3) What are the remedies and or what quantum of damages is the plaintiff<br> entitled to<br> (3) What are the remedies and or what quantum of d defendant as per the agreed facts. Also the fact that the defendants advocates and indeed DW1 also testified that, he later requested her to commence work which declined and that he did it because of the implications it would have in respect of damages and that the defendant wanted to give the plaintiff $2^{\rm nc}$ chance

All this go to show that there was a valid contract which was actually repudiated by the defendant prematurely The appointment which had been offered to the plaintiff was to commence on 3^rd January 2001 with six months probationary period. Its evident from both the plaintiff and defendants testimony that the contract was repudiated on 29.8.2000 when the plaintiff was on her familiarization venture. It was not anywhere in the contract that the four days which the plaintiff was allowed to go to the defendants place was part of the six months probationary period The contract which was exhibited and marked Ex PI clearly stated that the six months probationary period was to commence from the 3^th January 2001 not any earlier There was no evidence adduced by the defendant that this familiarization period was going to be paid, though DW1 in his testimony tried to impress court that this was the time to prove that she could manage the job Of course no reasonable tribunal properly directing itself on the law and evidence could get convinced by the defendants testimony in that material particular By the letter to the plaintiff terminating her service ironically cl didn't even preceed a notice which right an employee is entitled to Counsel for The plaintiff submitted that one of the instances where the implied term to<br> $\frac{1}{2}$ (*i*) terminate a contract is displaced is where there exists a contract for a definite<br> and fixed duration. He cited S 25 (3) of the

He also cited the case of MC Govern vs Maize Marketing Board [1966] E. A. 40 where it was held that the contract of Employment couldn't be terminated by Notice during the first three months since it was a fixed contract and therefore the notice was invalid and the termination wrongful. I find this case not relevant to the facts of the case because the contract in the instant case has not commenced effectively

$10$

In the instant case he argued that, if the defendant intended to reserve his right to terminate with out notice he would have expressly provided for which was not done That alternatively he ought have drafted the appointment letter reserving the right to terminate the contract to the plaintiff on reasonable notice

Counsel for the plaintiff correctly submitted that there was no provision in the appointment letter for termination on notice or otherwise. I entirely agree with him that the defendant did not only repudiate the contract, but the repudiation was arbitrary when for failure to give notice to the plaintiff

On the $2^{nc}$ issue whether the defendant mitigated the breach if at all. There was evidence which was not contraverted that the plaintiff on receiving the letter repudiation she tried to find out the explanation for the repudiation both by telephone calls and by writing as per Ex P4. But there was no response from the defendant It was not until the plaintiff gave instructions to her lawyer threatening legal action that the defendant decided to revisit the decision of termination because of the damages that might result in the legal action. This reaction of the defendant can't be said to be mitigation where there were no after execution but before commencement of work. Strictly speaking this re-<br>offering without reasons/explanation as to why the initial contract was terminated<br>can't be said to be mitigation on part of the defendant. This j reason given for the premature repudiation. The repudiation letter was insufficient as to clear explanation This would have helped the plaintiff to decide whether to take on the re-offer or not. The plaintiff said that she couldn't accept the re-offering because the defendant had breached the trust she had in the defendant Institute I am in agreement with her explanation because this is a normal reaction of a reasonable and diligent person

$10$

The defendants counsel in his submission conceded to issue. No one and the But to the $2^{n\alpha}$ part as to who repudiated the contract he law applicable contended that the defendant never did because the appointment letter indicated that the defendant reserved for itself the right to terminate the Contract He referred to S $23(1)$ of the decree which provides for giving $\overline{\phantom{a}}$ days notice if the contract on probationary period of service is to be terminated. He submitted that the letter of repudiation $\perp$ e Ex P3 was the notice given because the defendant decided to take the three days the plaintiff took to familiarize herself to be a probationary period That her performance was found unsatisfactory hence the termination and that it was entirely in the right of the defendant to do so

$\mathcal{F}^{\mathcal{A}}$

I find it difficult to agree with the reasoning of counsel in his submissions which is an arbitrary departure from the terms of the contract. There is no way the defendant had the right to decide to act contrary to the terms. Much as I would agree that the contract said that the term the plaintiff had to work included the probationary period of six months of which she would be terminated and that. that carried in it an implied notice to terminate, the defendant had no right whatsoever to just decide to use the few three days of familiarization before $\sqrt{3}$ 1 2001 to terminate the contract $\perp$ believed the plaintiff when she said that she wasked the defendant on her own accord to come and familiarize herself with defendant institution. It was not part of the contract to come and familiarize herself

atifal lange And besides the provision referred to $e(S-23)/3$ of the decree is not mandatory is discretionary and much as it gives discretion to either party as a court of law which is interested to see that justice is done, the appointment letter ought to have expressly stated it is whether to terminate with or without reasonable notice of the seven days provided in the provision. But sadly even the days notice was not complied with for the defendant to make a sound argument

$10$

Above all I find counsel for the defendants submission rather redudious because the evidence on record of his client DWI is to the effect that the Executive Director had $2^{n\alpha}$ thought to re-offer the plaintiff the job on the same terms because he feared the damages the institution would pay for breach of contract. This just prove that the defendant realized that something wrong had been done which would cost the institution a lot | agree with learned counsel for the plaintiff that, the defendant was only refusing to agree that the termination was made very hastily without any justification

I have to say that I find no substance in Learned counsel for the defendantssubmissions on this issue. His client knew that he had repudiated the contract so the arguments of counsel for the plaintiff stand unshaken

On the issue of the defendant mitigating the breach he submitted that the defendant did because of the re-offer of the job on the same terms. He cited the case of Brace v Calder [1895] 2 QB 253 to support this submission | had talked about this earlier on in this judgment, but I would add that the re-offer was not done in good faith because the defendant failed to give reasons and or explanations as to the repudiation of the same. And even if I wanted to accept $\sqrt{ }$ The evidence the best course of action was just to institute these proceedings the evidence the best course of action was just to institute these proceedings The defendant was very selfish in the after thought. For he was just thinking of his own loss in damages if there was court action without looking and or considering the young lady plaintiff's fate

For she was suffering as an individual and yet the defendant was a whole institution

As to what remedies were available for the plaintiff in her plaint, she prayed for special damages which she pleaded in her plaint amounting to $18,000,000$ = the remuneration she ought have received if the contract had not been breached She prayed for general damages for the disappointment, embarrassment and inconvenience. General damages for breach of contract interest on the special damages as above at a rate of 24% per annum from the date of judgment to full realization of payment and costs of the suit

Generally damages are the pecuniary compensation obtainable by success in an action for a wrong which is either a tort or breach of contract and the object is to give the plaintiff compensation for damage loss or injury he/she suffered The measure of damages is that sum of money which will put the party injured or suffered in the same position as he would have been in if he/she had not sustained the wrong for which she is now getting his compensation or reparation

In this case the measure of damages it refers to putting the plaintiff in the position she would have been in if the contract had not been broken. See Czarnikow v Kuofos [1969] 1 AC 350.

Learned counsel submitted that the plaintiff would be entitled to recover damages equivalent of the remuneration for the balance of the contract period as was ruled in the case of Gullabali Oshillani vrs Kampala Pharmacuticals Lds CA No. 6/98. unreported.

found the facts of the cited case highly distinguishable from the instant case that rendered it not applicable to the instant case. In the cited case the initial plaintiff had got into real service unlike in this one where the contract was executed but the effective date of work had not come to pass. In other words the way the plaintiff in this case would be put back in the position she was in halld the contract not been repudiated is not the way the plaintiff would be compensated in the cited case. In the instant case the contract was terminated

ЭO

months before the effective commencement of work she had not earned any money as stipulated in the contract or any of the remunerations in any of the terms. If I found that she was entitled to the remuneration she was entitled to earn will be grave misdirection on my part which would cause injustice to the defendant. The plaintiff in the instant case had time to look for another job though it was inconveniencing and caused her mental anguish On those premises I am unable to grant the special damages because in the facts of the case as in the evidence there was no proof thereof and the case cited couldn't apply I find learned counsel for the plaintiff submission inconsistent with what he argued and or submitted earlier on the earlier issues. He said the period of familiarization was not part of the contract but on this last issue he seems to say that it was part of the contract and vet he contended there were no wages attached to it

Having said that the damages which have to be considered are the general damages for the breach of contract - e disappointment, mental anguish and or psychological suffering

Counsel for the plaintiff cited the case of Bank of Uganda v Fred William Masaba $\frac{5}{1}$ , & 5 others SCCA 3/98 where justice Oder held as he quoted that damages may $\frac{3}{6}$ $\frac{3}{6}$ $\frac{6}{5}$ others SCCA 3/98 where justice Oder held as he quoted that damages may<br>d be awarded for disappointment arising out of breach of contract and<br>in psychological suffering I am alive on the fact They must have been reasonably foreseeable as naturally arising from breach of<br>contract. It was obvious from the evidence adduced in this case that the<br>damage was reasonably foreseeable when the defendant witness DW1 testi that he had a 2^nd thought and through his lawyers re-offered the job to her on the This defendant witness was aware that the plaintiff was same terms disappointed having insisted earlier that she resigns her job as editor many months before the actual starting of serving the contract

$10$

Following the findings in that case cited coupled with the evidence on record was satisfied that this is a case worthy awarding reasonable general damages in order to restore the plaintiff to the position she would be in if the contract had not been breached. She unfortunately didn't plead in the plaint about loss of her property. I wish she had pleaded otherwise I am constrained by the law not to grant any damages for something which had not been pleaded without having amended the plaint first

Accordingly I am awarding the plaintiff shs 10.000.000= in general damages for breach of contract, disappointment and mental anguish she suffered The interest on that is 10% p.a from the date of judgment to full realization of payment and costs of the suit

Judgment is entered in favour of the plaintiff as above stated

## F. Mwondha Ag. Judge 31.12.2001.

14/01/02

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