THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
HCT-00-CC-CS-208 OF 2002
TOMMY OTTO ====================PLAINTIFF
UGANDA WILDLIFE AUTHORITY ========DEFENDANT
BEFORE: HON. JUSTICE LAMECK N. MUKASA
The Plaintiff Tommy Joe Otto brought this suit against Uganda Wildlife Authority seeking general and special damages for wrongful dismissal, payment in lien of notice, re-statement and costs. The brief facts are that sometime in November 2001 an anonymous letter was written threatening the park management of Mt. Elgon National Park of the Defendant. On 12th November 2001 the Plaintiff was suspended pending investigations as to the author of the letter. On 3rd December 2001 the Plaintiff was dismissed for authorship of the anonymous letter. The Plaintiff contends that the dismissal was wrongful thus this suit. The Defendant’s case is that the dismissal was based upon a laboratory report ref. No. 5246 dated 26th November 2001, which showed that it was the Plaintiff who authored the anonymous letter and that in doing so, the Plaintiff had done breach of duty which led to his dismissal.
The following facts were agreed upon by the parties: -
2. On 12th November 2001 the Plaintiff was suspended from duty by the Defendant.
3. On 3rd December 2001 the Plaintiff was dismissed from the Defendants employed.
The following issued were agreed for the court’s determination:-
2. If so, whether the Plaintiff is entitled to re-instatement?
3. Whether the Plaintiff is entitled to the other remedies claimed?
The Plaintiff contended that he was neither given a complaint of his alleged misconduct, he was not given any report on the investigations carried out prior to his dismissal and was not called by the Defendant’s Board of Trustees or the Executive to answer any charges.
The Plaintiff testified that he was on5th December 2001 informed by Rev. Engola Etwal, the chairman of the Board of Trustees, that the Board’s term of office had expired. He was advised to report to the I.G.G. Following investigations initiated by the I.G.G another report, dated 17th April 2002 signed by Ezali Samuel (PW2), a Forensic Examiner of Questioned Documents was made – exhibit P5. The Plaintiff contended that the Report – exhibit P5 – cleared him from the authorship of the anonymous letter.
Mr. Mulooba, counsel for the Defendant had at the hearing objected to the Report by Ezali Samuel (PW2) being received in evidence. His objection was over ruled and the Report was received as Exhibit P5. I promised to give detailed reasons in the judgment, which I now proved to give. The report was tendered in evidence by its author Ezali Samuel. Among the documents listed by the Plaintiff to be relied upon were contradictory reports from the government analyst. The list was filed together with the plaint as required by order 6 rule 1 (b) of the Civil Procedure Rules. At the scheduling conference counsel for the Plaintiff indicated that he was to rely on the documents as listed in the Plaintiffs list of documents. Therefore there was no question of the Defendant being ambushed by tendering the report in evidence.
PW2 clarified that the Report Exhibit P5 was marked“Lab No. 5246 - re examination” because it was a re-examination of the same documents, which had been earlier examined under the same Lab. Number by his colleague Apollo Ntarirwa. The witness further stated that they were three Analysis’s in the office, namely himself, Apollo Ntarirwa and Olanya Joseph. That the witness as in charge questioned documents, caused Olanya Joseph also to make an independent examination of the same documents. After studying Olanya Joseph’s report the witness wrote a letter exhibit P4 (ii) to the Inspector General of Police. In that letter the witness stated that the position of the lab was that the person whose specimen writings was submitted did not write the questioned anonymous letter.
Olanya Joseph Okwanya testified that he had examined the same documents and made a Report Lab. No. 5246 – Re- submission dated18th April 2002 and received in evidence as exhibit P7. The witnesses’ opinion was also that the author of the sample handwritings did not write the questioned anonymous letter.
The defence witness Byakika Eseza Catherine, who was the Defendant’s Training Manager at the material time, testified that the Plaintiff had been dismissed by the Management Committee on the basis of the Report of the Handwriting Expert. The witness identified Exhibit P3 as the report. The witness stated that the threat in the anonymous letter amounted to gross misconduct, which would result into instant dismissal of the author without notice and without any entitlement to a hearing or benefits. The witness stated that in the letter the author was threatening to kill his bosses. That such threats being made by a person who is by the nature of his employment armed with a gun were taken seriously and the continued employment in the UWA of such a person was considered dangerous. The witness further testified that as an Assistant Warden the Plaintiff was at junior level and the junior staff are disciplined by the Management unlike the Senior Staff who are disciplined by the Board of Trustees. However on being shown the Plaintiffs Identity Card – exhibit P8 – in cross – examination, the witness admitted that the Plaintiff was a Warden Community Conservation and that as a Warden was a Senior Officer. The witness also tendered in evidence the Terms and Conditions of Service of Senior Officer of Uganda Wildlife Authority received as exhibit P9.
In his submission Mr. Alenyo, counsel for the Plaintiff contended that the Plaintiff was denied his Constitutional right to be heard. He referred to Articles 20 (2) and 44 (c) of the Constitution. He therefore submitted that such dismissal without the Plaintiff being heard was unlawful. On the other hand Mr. Mulooba, for the Defendant, submitted that it is settled law that where the employee is guilty of sufficient misconduct in his capacity as an employee, he may be dismissed summarily without notice. That it has been established that misconduct means “bad, improper or unprofessional behaviour”. That it has also been decided that unsatisfactory conduct is the same as misconduct. He cited the case of Barclays Bank (U) Ltd vs. Godfrey Mubiru SCC.A No. 1 of 1998. He agued that the Plaintiff was guilty of misconduct and was justifiably summarily dismissed.
Article 44 of the constitution provides: -
However in Eletu .vs. Uganda Airlines Corporation  HCB 39 Manyindo J, as he then was, held that summary dismissal is dismissal without notice. At common law, to justify such dismissal the breach of duty must be a serious one, a breach amounting in effect to a repudiation by the servant of his obligation under the contract of employment such as disobedience of lawful orders, misconduct, drunkenness, immorality, assaulting fellow workers, incompetence and neglect. In summary dismissal the employer gives no notice but in termination he must give notice or pay in lien of notice.
The holding in the above case was cited with approval by Tsekooko, JSC inBarclays Bank of Uganda Ltd. vs. Godfrey Mubiru (supra) where the learned judge stated: -
It is the Defendants contention that the Plaintiff was summarily dismissed for gross misconduct and not entitled to notice or to a right to be heard. The above notwithstanding, in summary dismissal court is required to investigate whether the circumstances of the alleged misconduct justified a Summary Dismissal.
InBarclays Bank of Uganda Ltd. vs. Godfrey Mubiru (supra) Tsekoko JSC referred to Chitty on Contracts 26th Ed Vol 2 at page 824 para 3973 where under the heading MISCONDUCT the book sates: -
In the instant case Byakika Eseza Catherine (DW1) testified that the Plaintiff was dismissed on the basis of the Handwriting Experts Report wherein the Plaintiff was stated to be the author of an anonymous letter – exhibit D4. That as the author of the letter the Plaintiff was found guilty of gross misconduct in that he had threatened to kill his bosses. The letter was addressed to Mr. Katamagwa Wilson, Mr. Katto and Mr. Okonya James. While being cross-examined Byakika stated that the offending part of the letter was the part, which stated: -
DW2, Kato Stonewall, one of the addressees in the anonymous letter, while being cross – examined was asked about his opinion on the intentions of the author of the letter as could be derived for the last paragraph and the witness stated that the author was cautioning the addressees of the letter. The paragraph stated: -
You therefore need to monitor the information and put everybody on immediate alertness and observation.”
The terms and conditions of service of Senior Officers, exhibit P9, in the preamble stated: -
In his testimony the Plaintiff stated that he was employed as Junior Warden, Community Conservation. DW2, Kato Stonewall, a Senior Warden Community Conservation corroborated the Plaintiff’s testimony that at the time of his dismissal the Plaintiff was a Junior Warden Community conservation. While being cross-examined the witness confirmed that Terms and Conditions of Service similar to Exhibit P9 were in force in 2001 when the Plaintiff was dismissed. He stated that in November 2002 the Defendant published a new Human Resource Manual in which “Senior Staff” begins from “Senior Warden”.
DW1, Byakika Esaga Catherine testified that Junior Staff are disciplined by Management while Senior Staff are disciplined by the Board of Trustee. She however contracted herself on the rank of the Plaintiff and on the existence of the Terms and Conditions of Service. Her contractions were major and could not be disregarded since they concerned the core of the subject at issue. The issues were whether the Plaintiff was a Senior or Junior Staff of the Defendant and whether the Management Committee had the mandate to discipline him.
On termination section H of the Terms and Condition of Service states: -
(ii) If a member of staff is deemed to be guilty of misconduct specified in section D (i) above or any other form of misconduct, he shall be given a warning.”
On penalties condition 23(ii) provides: -
The Plaintiff’s dismissal was based on the Report by DW3, Apollo Mutashwera Ntarirwa. This witness in his testimony accepted to have written and signed two reports, that is Exhibits P3 and Exhibit P10 both dated 26th November 2001 and marked Lab No: 5246. In Exhibit P3 the witness wrote: -
Considering all the above my finding or the first issue is that the Plaintiff was unlawfully summarily dismissed. That brings mw to the second issuewhether in the circumstances the Plaintiff is entitled to re-instatement. Mr. Alenyo, for the Plaintiff submitted that the decision to dismiss the Plaintiff was null and void, it was never, therefore the Plaintiff has a right to his employment. In most cases a dismissal of an employee is the end result of a strained relationship between the employer and his employee or boss. It is therefore fundamental that, before court can exercise its discretion to make an order of re-instatement on a finding of unlawful dismissal, it considers whether it is practicable for the employer to comply with the order. The industrial Court has a prime duty of protecting the rights of workers. Its view on re-statement was clearly stated in ATGWU .VS. UTC LTD (I.C.C NO. 19 OF 1971 where the Respondent, UTC was found to have wrongfully dismissed two employees.
The Court observed: -
Considering all the above and the circumstances of the Plaintiff’s dismissal I decline to make an order for re-instatement of the Plaintiff in his employment.
Lastly is the issuewhether the Plaintiff is entitled to the other remedies claimed. In paragraph 3 of the Plaint it is pleaded that the Plaintiffs claim against the Defendant is for special and general damages for wrongful dismissal on the Defendant organisation. In paragraph 12 of the Plaint particulars of special damages are set down as follows: -
Accommodation since Oct. 2001 Feb. to 2002 - 7,500,000/=2. Transport for 5 months since Oct. 01 to Feb. 02 - 1,500,000/=
3. Maintenance for 5 months since Oct. 01 to Feb. 02-11,000,000/=
There was no evidence adduced by the Plaintiff with regard to special damages. The law is that special damages must not only be specifically pleaded but must also be strictly proved. See Kyambadde .vs. Mpigi District Administration  HCB 44, Asuman Mutekanga .vs. Equator Growers (U) Ltd S.C.C.A No. 7 of 1995.
The Plaintiff also prayed for general damages. In principle general damages are imposed or presumed to have accrued from a wrong complained of on account of the fact that they are its immediate, direct and proximate result. See Davis Byamuhenga Vs Shiran KMD Ltd  HCB 71. In his submission counsel for the Plaintiff submitted that the negation of the Plaintiff’s right to be heard is a grave constitutional breach and prayed for an award of Shs. 20,000,000/= as general damages. In Eletu .Vs. Uganda the Airline Corporation  HCB 41 it was held that damages for wrongful dismissal should normally be based on the wages which the employee would have received if a valid notice had been given to him or the date of dismissal, since he was entitled to be put in the same position as if the contract had been performed. In Gulaballi Ushillan .Vs. Kampala Pharmaceuticals Ltd. SCCA No. 6 of 1998 Court made a distinction between a contract which makes no provision for termination prior to expiry of the fixed period and one in which there is a provision enabling either party to terminate the employment. It was held that in the event of wrongful termination by the employee, the employee in the former contract would be entitled to recover as damages the equivalent of remuneration for the balance of the contract period whereas in the latter case, the wronged employee would be entitled to recover as damages the equivalent of recommendation for the period stipulated in the contract for notice. In the instant case the Terms and conditions of Service, Exhibit P9, provided that the Board or Executive Director may dismiss a Senior Staff by prior three month’s written notice. Therefore the Plaintiff was entitled to three month’s notice or payment in lien of notice.
Lameck N. Mukasa