Home About Us Databases Search Contact Us Terms of Use Help Uganda: High Court You are here: ULII >> Databases >> Uganda: High Court >> 2007 >> [2007] UGHC 30 | Noteup | LawCite Farouk S. Mukasa v Posta Uganda (Civil Suit No. 439 of 2004) [2007] UGHC 30 (16 March 2007) RTF format THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA CIVIL SUIT NO. 439 OF 2004 FAROUK S. MUKASA :::::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF VERSUS POSTA UGANDA :::::::::::::::::::::::::::::::::::::::::::::::::::::: DEFENDANT BEFORE: HON. AG. JUDGE REMMY K. KASULE JUDGMENT The Plaintiff sued the Defendant for payment of his terminal benefits, refund of graduated tax amount wrongly deducted and general damages. The particulars of the claim are pleaded in paragraph 10 of the Plaint as being:- JSC. All Port Services (U) Limited: Supreme Court of Uganda Civil Appeal No. In Gandy Vs.750. 2. For Defendant only Mr. of course.250. The Remedies available to the Parties.if the Plaintiff has any claim or at all. General Manager. Caspair Air Charter Ltd [1956]. This amounts to Shs. 23 EACA. testified. 3. As to the first issue: whether the Defendant owes the Plaintiff terminal benefits.437. as he then was. As a rule relief not founded on the pleadings will not be given. 2.000 x 3 = Ugs 9. gratuity at the rate of 25% for the three (3) months that he served in the year 2004 prior to his retirement.000/=. in that Judgment was given against him on an unpleaded cause of action which he had no reason to anticipate and no opportunity to prepare to meet.000/=” In his written statement of defence. Defendant has contended that this part of the claim cannot be considered by Court as it is not pleaded in the Plaint. Vice – President. so that each may have full information of the case he has to meet and prepare his evidence to support his own case or to meet that of his opponent. thus: “The answer to this question depends. The law is that a court grants relief founded on pleadings. in his evidence and written submissions.” . Finance.000/= (iii) Graduated Tax deduction: Ugs.” No issues were framed before commencement of hearing. the pleaded particulars of terminal benefits constituting the claim have been stated. (ii) Repatriation costs: Ugs.6 of 1999 pages 184 -186: Supreme Court Civil Judgments/Orders: Delivered 2000: Tsekooko. 50. Both Counsel however have agreed in their respective written submissions that only two issues arise for Court determination: 1. held:“The object of pleadings is.” In Francis Sembuya Vs. Plaintiff made no attempt to amend the Plaint so as to include it. I think. He called no witnesses. the Plaintiff claimed as part of the terminal benefits.“(i) Three months salary Ugs. Mbabazi Herbert Kawawa. the Defendant denied the Plaintiff’s claim contending in paragraph 6 of the defence that:“-----.500/=. Plaintiff testified in support of his case. Whether the Defendant owes the Plaintiff terminal benefits. to secure that both parties shall know what are the points in issue between them. 200. then he was fully paid and received the payment in full and final settlement and has therefore no legitimate claims against the Defendant. on whether any prejudice was caused to the appellant. 139 the Court of Appeal for East Africa. However. explained that whether or not relief should be given by the Court on a matter that is not pleaded. Sir Ronald Sinclair. 03 he was confirmed in this appointment. The rest of the retirees were being paid. On 28. Further.437. and equivalent of one (1) month’s salary was payable to those in service for less than a year. waited in vain for the payment of his terminal benefits. there should have been a separate sub-heading particularizing the special damages in the Plaint. The same was dishonoured with “Refer to Drawer” remarks by Defendant’s bankers on presentation. The payment of terminal benefits was to be effected as soon as the Auditor General completed their verification.02. demanded for payment: Exhibit P16. On same date of filing suit.06.3. of the Defendant.’ This holding applies with equal force to this case. on a three years contract. after retirement.02.90 he was appointed bursar of the then Uganda Posts and Telecommunications Corporation’s Training Institute on permanent and Pensionable terms. It was thus incumbent upon the Plaintiff to plead the same.500/=. On 16.06. As to the retirement benefits whose particulars are pleaded.03. prior to retirement. which he took. the claim as to gratuity of shs. being the rate of 25% for three months he served in 2004. On . The terms of the retirement package were contained in a circular of 17. Exhibit P17.01. He received no response. and therefore having deprived of the Defendant the opportunity to know and to prepare to defend. with a three months Probationary period. They must thus be specifically pleaded as special damages: See ELETU VS UGANDA AIRLINES CORPORATION (1984) HCB 39: where Manyindo J. Accounts and Stores. there is nothing to show that the Defendant had reason to anticipate and opportunity to prepare to meet the objected to claim. The same stands rejected. Finance. He did so following an offer by the Defendant of a voluntary retirement scheme to all staff.06. On 01. he voluntarily retired from Defendant’s service. were entitled to payment of three (3) months salary payment in lieu of notice. then expected to be completed within three weeks. that the Plaintiff having not pleaded. through his lawyers. According to the circular.2. On 01.03 he was appointed. Therefore. resulting into creation of the Defendant.942. held that:“It is trite law that salary and other terminal benefits should be claimed by way of Special damages which must be pleaded and strictly proved.98 he was appointed Acting Chief Manager Finance. Court therefore holds on the basis of the above authorities. while two (2) months salary was payable to staff having served for at least one (1) year.04. issued and signed by the Defendant’s Chairman of the Board of Directors. Plaintiff’s testimony is that on 12. such claim is not recoverable in this suit. terminal benefits are claimable as special damages. Plaintiff. as he then was.500/=. after Uganda Posts and Telecommunications Corporation had been privatized. staff who had been in service with the Defendant for five (5) or more years. General Manager. He then filed this suit on 16.04 Exhibit P8..04. He.In this case. but less than five (5) years. the Defendant sent to Plaintiff a cheque for Shs. 000/= without any particulars as to the items of terminal benefits being paid for. had joined the Defendant’s employment after the event. Defendant forwarded to Plaintiff’s lawyers a cheque for shs.” DW1.07. DW1. Plaintiff is therefore only entitled to two (2) months salary in lieu of notice. Finance. to the Defendant’s Acting Managing Director: (page 2 paragraph 6 of the Memo):“The Chairperson’s circular does not refer to appointment but service.12. Stephen Peter Babiiha.900. It is necessary for Court to decide as to the exact meaning of the language of the 17. taking place or continuing while one is a full time employee. The material phrase of the circular is: “those employees who have been in the services of Posta for” followed by the categories of the notice period. as General Manager.04. amongst other meanings as “of. as to their natural and ordinary meaning and how they applied to the Plaintiff’s case.11. page 468. the Plaintiff’s period of service is to be calculated. relating to. by Houghton Mifflin Company. on permanent and pensionable terms that started in 1998. having served for at least one (1) year but less than five (5) years. In the considered view of Court. According to Plaintiff.09. Any other interpretation would be severe distortion of the laid down usage of diction in employment or labour law and may not be defendable in Courts of law.04 when he retired. Exhibit P2 by the Defendant’s Acting Company Secretary. The Defendant’s Acting Secretary interpreted the terms of circular. and is therefore entitled to be paid three (3) months salary in lieu of notice in accordance with the agreed upon terms of the retirement package Exhibit P8. exhibit P8.03: Exhibit P3.04 circular.02. Whether or not. Exhibit P8. 5. The Defendant contends otherwise on this point. Hence Plaintiff’s period of service is less than five (5) years. Finance. The Defendant’s Board of Directors intended to have the period of service a staff has worked for the Defendant.04.” The above meanings of “in-service” support the interpretation and advice given on 09. “In service” means “carried out while actually working at a job” The American Heritage Dictionary of the English language.98 to 28. With respect. Chief Manager. was determined on 27. Mbabazi Herbert Kawawa’s evidence is that the Plaintiff worked for the Defendant for less than five (5) years. defines the same phrase.01. or being a full time employee”. was intentional and purposeful. Accounts and Stores. In that regard service implied employment in Posta on sequential appointments for such period. Exhibit P8. According to the “Oxford Advanced Learner’s Encyclopedic Dictionary. 1994. This is because Plaintiff’s employment as Ag. through an internal Memo. he. from the date of Plaintiff’s contract appointment as General Manager Finance effective 01. Exhibit P8. the language used in the Circular. he served the Defendant for almost six (6) years. Exhibit P8. from 16.02 when Plaintiff was appointed by Defendant on a three (3) years contract. 4th Edition. regardless of the appointments such a staff may have had in the . Acting Secretary.03. in his testimony dismissed the above advice.02. on the basis that the Acting Secretary had joined the Defendant after the event. Oxford University Press. according to DW1. does not in any way affect the meaning of the language of the circular. Court finds such reasoning of DW1 to be faulty. For purposes of the retirement package terms. Therefore payment of his terminal benefits was withheld because the matters were still with the office of Inspector General of Government Business for due resolution. The assertion that Plaintiff falsified management accounts by the time of his voluntary retirement is not supported by any credible evidence.500. No independent evidence was adduced that the issue was with the office of Inspector General of Government. on retirement caused financial loss to the defendant of Shs. as General Manger. was produced to Court. if the issue of causing financial loss was still on his head.04. Finally. and he undertook to see to it that what had happened does not re-occur. then the Board would have expressly stated so in Exhibit P8. There was no evidence that the loss was ever reported to police. On the evidence availed. being the ultimate head answerable. He was never told. was in Defendant’s service for more than five (5) years. Court finds the allegation not at all proved. Had the intention of the Board of Directors been to have the date of appointment as the determinant of the notice period.02.000/= and also he had committed falsification of the Defendant’s Management accounts. he took responsibility for this shortcoming. The same is therefore held not to be valid ground for withholding payment of terminal benefits to the Plaintiff.17.17. The said issue was dealt with and closed on 02. Court therefore holds that the Plaintiff. He admitted however that a company whose owners could not be identified. Finance. it was the case for the Defendant that what was paid to Plaintiff was all that was due to . had bought stock cards and then issued to Defendant cheques totaling Shs. as the means to determine the notice period in respect of which salary would be paid in lieu. The money was not recovered as the company owners could not be traced.04. at that time.500. Defendant adduced evidence and contended that Plaintiff was not paid all his terminal benefits because he had. Otherwise the Plaintiff would never have been confirmed in appointment as evidenced by Exhibit P15.03. No explanation was given as to how the Plaintiff came to be confirmed in the Post of General Manager – Finance. before he retired. apologized and was reprimanded by the Defendant’s Board of Directors.course of service.500.000/= which cheques bounced on presentation for payment to the bankers. The apology was tendered in evidence as Exhibit P14.03.17.000/= to the Defendant. No police report or any writing by Defendant to the Plaintiff. Thereafter Plaintiff performed his duties to the satisfaction of Defendant and on 28. that his terminal benefits would not be paid to him by reason of this financial loss.05. and as such is entitled to be paid three months salary in lieu of notice.03. Court finds that Plaintiff’s retirement was allowed by Defendant on 28. On 02. apart from the bare statement of DW1. The Plaintiff on his part. denied causing financial loss of Shs. Court holds that the alleged causing of financial loss was and is not a valid reason for the Defendant not to pay the Plaintiff his terminal benefits in full. he was confirmed in appointment as General Manager – Finance.04. Court holds that the amount was partial settlement of what the Defendant owed to the Plaintiff. Court holds that Plaintiff is entitled to the same.000/=.000 x 3) = Shs.5. The Defendant never filed any counter-claim against the Plaintiff. The evidence of the Plaintiff that he is entitled to Ug. There is thus.200.000/=) = Shs. Court will therefore.250.000/= terminal benefits to which Plaintiff is entitled so as to arrive at the sum.000/= (c) Graduated Tax Reduction = Shs.100. contained were proposals for approval by the Defendant’s Board of Directors. which approval was never given. nothing that Defendant claims against the Plaintiff.000/= as the outstanding sum due to the Plaintiff from the Defendant.07. He gave no detailed breakdown.000/= Total : Shs. Court therefore finds on the first issue that the Defendant owes the Plaintiff terminal benefits being:(a) three (3) months salary in lieu of notice i.000 – 5. Exhibit P20. The same will thus be deducted from the total sum of Shs. and Shs.4.000.him according to the recommendations of the Deloitte and Touche report.e (3.10.50.000/= The second issue is what remedies are available to the parties. Plaintiff claimed general damages against the Defendant. In absence of particulars of items of terminal benefits paid for. (10. Court rejects the Defendant’s contention and holds that the retirement package to which the Plaintiff is entitled is that set out in Exhibit P8. through his lawyers. 50. on the basis of pleadings. in the circumstances. In Court DW1 explained that the amount covered good will and costs of the Plaintiff’s lawyers. had no explanation to give to Court when it was put to him that what the Report. Court finds Shs.900. The Defendant did not indicate the particulars of terminal benefits that the amount covered.900.4. was not all that far afetched given the fact that it happened and Plaintiff took some of the blame by even tendering an apology.000/= graduated tax reduction was not in any way contested by the Defendant.200. It is however agreed by Plaintiff that on 09. Exhibit P20. at the material time.750.000.000. the Board choosing to proceed on the retirement package terms contained in Exhibit P8.000/= was paid by Defendant to Plaintiff. however.9.000/= repatriation costs.04 Shs. still outstanding: = Shs. He contended that the non-payment of his terminal benefits purportedly due to his having caused financial loss had caused him embarrassment amongst the members of the Rotary Club of Kololo where he was president.100. Court however takes cognizance of the fact that the Plaintiff has been deprived of his money for . DW1. No member of that Club testified in support of the Plaintiff.000/= (b) Repatriation costs = Shs. At any rate the issue of causing financial loss. Shs. award no general damages to Plaintiff on the basis of this particular ground.10. The Plaintiff is also awarded the costs of this suit.000/= being balance of terminal benefits due from the Defendant to the Plaintiff. The same is awarded.100.4. The said sum of Shs. Plaintiff is thus entitled to be awarded adequate interest on the sum of Shs.000/= for the period of deprivation.the period of almost three (3) years since he retired in February 2004 to date.000/= shall carry interest at the rate of 22% per annum from the retirement date of 09. Remmy K. Accordingly judgment is entered for the Plaintiff against the Defendant in the sum of Shs.04 till payment in full.100.4.100.02. Court finds an annual interest of 22% on the said amount appropriate. Judge 16th March 2007 .4. 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