IN THE HIGH COURT OF UGANDA HOLDEN AT GULU
b) Special damages
c) General damages
d) Exemplary damages
e) (Interest on (a) (b) and (c) at 45 % per annum from the date of Judgment till settlement in full.
4. The plaintiff resigned.
7. Letter from D.S.C withdrawing interdiction marked P.8.
4. What remedies are available to the plaintiff
With regard to the first issue whether the plaintiff was unlawfully interdicted the plaintiff PWI
Christopher Yiki Agatre testified that some time in 2003 the IGG forwarded to the
PWI Christopher Yiki Agatre further testified that he wrote to the Clerk to council complaining that the decision to forward the IGG's report to the District Service Commission without giving him an opportunity to defend him selfwas erroneous. The IGG on realizing his report was wrongly addressed to the Chairman District Service Commission wrote to the Chairman LCV on 22/09/2003 forwarding the same report to him. Another council meeting was convened for 6 - 7 November 2003 and the plaintiff was invited to it to defend himself against the report. The council debated the report and the plaintiffs defence and decided to absolve and reinstate the plaintiff. However, the plaintiff failed to return to his office because
PW2 Amia Butele Kazimiro gave evidence that following the IGG's report and recommendation that the plaintiff should be dismissed, a council meeting was called to discuss the report. One councilor moved that the IGG's report should be debated but this was rejected. The majority of the councilors expressed their dissatisfaction with these proceedings by writing and complaining to the Ministry of Local Government.
For the defence DWI Jerome Dralega, the chairman District Service Commission for Yumbe District testified that he received a report from the IGG recommending the dismissal of the plaintiff for embezzlement of funds. He convened a meeting of the Commission on 4/9/2003 and interdicted the plaintiff. On 5/9/2003, the plaintiff
DW2 RASHID GULE testified that he received a copy ofa report from the IGG recommending the dismissal of the plaintiff on 15/08/2003 which was addressed to the District Service Commission. When the latter commission sought his advice, he advised the Chairman to take an appropriate action. It was his evidence that the District Service Commission then interdicted the plaintiff who rejected the said interdiction on the ground that it was wrongful. As a result of the objection of the plaintiff, the Chairman of the District Service Commission withdrew the interdiction.
Mr. Odongo, learned counsel for the plaintiff after reciting the evidence on record submitted that because the interdiction of the plaintiff was done contrary to the provision of the law it was unlawful and he urged me to so hold.
Ms Susan Odongo, learned counsel for the defendant, on her part submitted that though the District Service Commission had erred in interdicting the plaintiff on 4/9/2003, that interdiction was retracted and the matter was referred to council which on 15/09/2003 resolved to implement the IGG's report and recommendations and on the basis of that resolution the chairman District Service Commission rightly interdicted the plaintiff on 25/09.2003.
She submitted that under Section 56(1) of the Local Governments Act, the District Service Commission has powers to appoint persons to office, to exercise disciplinary control over and remove them from office. Counsel contended that the District Service Commission in interdicting the plaintiff was exercising its powers under section 56(1) of the Local Governments Act and therefore acted lawfully.
The two interdictions of the plaintiff by the District Service Commission on the 4th and on the 25th September 2003 were both Steps in the process of removing the plaintiff from office. The law governing the removal of a Chief Administrative Officer from office is to be found in Section 69 of the Local Governments Act as amended by the Local Governments (Amendment) Act 2001 which states as follows;-
(3) Except for subsections (3)(4)(5), 6 and 18 section 15 shall apply to the removal of the Chief Administrative Officer or Town Clerk with such Modification as may be necessary and in particular.
In the instant case the interdiction of the plaintiff by the commission on the 4th September 2003 was contrary to the provision of the Local Governments Act in section 69 and section 15(3)(4)(5)(6) and (18) of the Local Governments Act in that the District Council neither put its allegations against the plaintiff with a view of giving him an opportunity to defend himself nor passed a resolution to remove the plaintiff supported by a two thirds of the council members nor requested the District Service Commission to take appropriate action against the plaintiff. The chairman District Service Commission in this case acted contrary to the provisions of the Local Governments Act in interdicting the plaintiff by relying solely on the report and recommendations of the IGG. The chairman District Service Commission appears to have realized his folly because he withdrew the interdiction, which was contrary to the Law and therefore unlawful.
From the evidence there is nothing on record that in considering dismissing the plaintiff in this meeting the council had furnished him with the allegation against him with a view to defend himself nor was the decision by the District to recommend the plaintiff's removal supported by a two thirds resolution of the members of the council. According to the evidence of PW2 Amia Butele Kazimiro which was not at all contradicted, the majority of the members of the council 13 by 2 rejected the removal of the plaintiff and wrote to the Ministry of Local Government, Protesting any move to remove the plaintiff. In the circumstances in the instant case a charge alleging misconduct by the plaintiff was not only not framed but the District Council never passed a resolution to the District Service Commission recommending the removal of the plaintiff supported by two thirds of the members of the council. In this the District Council was acting unlawfully contrary to section 69(1) and (2) of the Local Government Act. The Chairman District Service Commission also acted contrary to S 56(4) of the Act in interdicting the plaintiff when no resolution of the council supported by two thirds of the members of the council requesting him to take appropriate action against the plaintiff existed. For the above reasons the two interdictions of the plaintiff by the District Service Commission were both unlawful. The first issue is accordingly answered in the affirmative. The second issue to determine is whether the plaintiff after having been absolved and reinstated was blocked from assuming office by the defendant. The plaintiff PWI ChristopherYiki Agatre testified that after the interdiction clamped on him he wrote protesting to the clerk to council and the chairman LCV that he had not been given an opportunity to defend himself and another council meeting to which he was invited was called for the 6th and 7th November 2003. At this meeting he gave his defence and the council debated both his defence and the IGG's report after which he was absolved and a decision was made to reinstate him. He was due to resume his duties on 10/11/2003 but he started receiving death threats. The plaintiff testified that he reported these threats to the District Internal Security Officer Yumbe who after investigations informed him that the threats were from people being instigated by the Yumbe LCV Chairman. He further gave evidence that the said LCV Chairman called a public rally which he did not attend but he learned that the purpose was to incite the public against the plaintiffs resumption of duty. He was informed of this plan by one Ayub Adiga and PW3 Keniga Abdu. The minutes taken at this rally were tendered as PlO.
PW3 Keniga Abdu confirmed the public rally organized by the LCV chairman DW2 Rashid Yiga Guvule on 20th November2003. At the meeting the LCV Chairman told the Public that the plaintiff had embezzled money. A resolution was passed at the rally that the plaintiff should not occupy the CAO'S office ifhe had embezzled funds. This witness gave evidence that the public resolved that if the plaintiff occupied his office they would take it over and lie on the tables. PW3 Keniga Abdu also testified that in contributing to the meeting he suggested that if the plaintiff had embezzled money the law should be allowed to take its course and that this was not a problem that could be solved by the public.
DW2 Rashid Govule Iyiga did not dispute calling the rally on 20/1112003 at which the invited the L.C.III Chairman, LCV councilors members of commission, elders, religious leaders, youth and women leaders, the public, the DISO, DPC, heads of departments and major General Ali Bamuze. The aim of the meeting was to ensure insecurity did not engulf Yumbe District. He testified that he explained that because the council was supreme its decision would stand and prevail.
I believe that the plaintiff was subjected to all types of threats including death threats. This is supported by the evidence of PW3 Keniga Abdu and the contents of the minutes of what transpired at the rally called by DW2 Rashid Govule lyiga, the L.C.V Chairman, which is exhibit P.lO on the Court record. I also believe that it is these threats which led to the plaintiff's failure to resume his duties as the CAO of Yumbe and to his writing a resignation letter.
What remains to be determined is who was behind these threats and responsible for blocking the plaintiff from resuming his office. The plaintiff testified that upon being absolved of the allegations in the IGG's report he started received threatening messages on his phone. These were to the effect that he risked losing his life if he went back to his former office. He reported the receipt of these threats to the DISO, who after conducting his own investigations informed him that it was the LCV Chairman instigating the people of Yumbe District against the plaintiff. Though the Chairman LCV denied any complicity in the efforts to block the plaintiff from resuming his duties, his conduct proves the contrary. Though the District Council which is the highest decision making body of the District had absolved the plaintiff of the allegations in the IGGs report and reinstated him, the L.C.V Chairman called a public rally to discuss a matter which had otherwise been closed. According to PW3 Keniga Abdu who attended the said rally, the Chairman accused the plaintiff of having embezzled public funds though he had earlier been a absolved by the District Council of this allegation. The LCV Chairman claimed that the rally was an innocent meeting to sensitize the public and a way of being accountable and it had nothing to do with blocking the plaintiff from resuming his duties. This is not at all borne out by the minutes of the said meeting and by what PW3 Keniga Abdu testified to having heard at the rally. From the minutes of what took place at the rally, the Chairman reopened the matter of the IGG's report and informed the rally that according to the IGG's officials, if the plaintiff was retained as the CAO of Yumbe, funding for the District would be cut. In my view a public rally was not the proper forum to decide whether to remove or retain the plaintiff as CAO. The right forum was the District Council which had finally made a decision on the matter. The chairman LCV deliberately set himself to slant the facts of the case to poison the minds of the public against the plaintiff on the pretext that he was sensitizing the public and being accountable to the Electorate. He was being malicious pure and simple.
Because of the picture painted by the LCV Chairman, the Public which legally has no jurisdiction over the office of the CAO purported to pass resolutions-
(a) Rejecting the plaintiff as the CAO ofYumbe.
(e) To demonstrate against the plaintiff if he dared come back to his office.
The conduct of the LCV Chairman and the resolutions made by the Public at the rally made it impossible for the plaintiff to resume his office and virtually locking him out from carrying out these duties as the CAO of Yumbe District.
In the instant case the LCV Chairman is the Chief Executive officer of Yumbe District with a political mandate to lead them. In playing his leadership role he educates and sensitizes the public on Government policy and developmental issues. This main education is done by calling meeting. In the instant case he called such a meeting on 20/11/2003. This meeting was one of the activities he is employed to execute. Though it was from the minutes, ostensibly called to discuss security in the District, its main emphasis was to instigate the public against the plaintiff as indeed the LCV succeeded in doing. Though the LCV Chairman was by intrigue trying to instigate the public against the plaintiff contrary to the provisions of removing the plaintiff, I find that he did this in the course and within the scope of his employment
The next issue is whether the plaintiff resigned because he was blocked from assuming office. The evidence of PW1 Christopher Yiki Agatre on this issue is that around 10/11/2003 after the council had made a decision to reinstate him, he started receiving threats including death threats. These were followed by a rally called by the LCV Chairman at which plans were hatched to block him ifhe had gone back to his office. He testified that though he did not attend the rally, he was informed of the plan by Ayub Adiga and PW3 Keniga Abdu who testified that he attended the said rally. Though Ms Susan Odongo submitted that the plaintiff wrote his resignation freely, willingly and on his own accord and that he was not at all prompted by the alleged threats, I find that the said threats were indeed issued as can be gathered from the evidence of PW 3 Keniga Abdu and from the resolutions by the Public in the rally as contained in minutes of the same. I also considered these threats to be very serious and that indeed this forced the plaintiff to write the letter of resignation to the LCV Chairman. This issue is answered in the affirmative.
Though not directly connected with the above issue, Ms. Susan Odongo submitted that the plaintiff s so called resignation did not take effect because it was directed to the LVC Chairman instead of being addressed to Chairman District Service Commission. She argued that this makes the plaintiff still effectively in service as he was merely interdicted and not removed. Counsel also argued that the fact that his salary was still being sent was evidence that he is regarded to still be in the employment of the defendant. Mr. Odongo submitted that the position of the plaintiff is as stated by Ms. Odongo Susan that he is serving a period of interdiction.
Under section 56(4) of the Local Governments Act it is the District Service Commission which has the power to appoint persons in office in the service of the District, to exercise disciplinary control over such persons and to remove them from office. As an appointing authority for an employee to resign effectively from his post he should resign to the District Service Commission. In the instant case the plaintiff wrote his resignation letter to the LCV Chairman who is not the appointing authority with power to remove him from office. I agree that for this reason the purported resignation of the plaintiff did not take effect and that he is still on interdiction though
b) Special damages as per paragraph 8 of the plaint.
c) General damages.
d) Exemplary damages.
General damages which are at the discretion of the Court are compensatory and intended to put the plaintiff in as good a position as he would have been in monetary terms if the wrong complained of had not occurred See Phillips Vs Ward [19561 lAU ER 874. Mr. Odongo submitted that the plaintiff was greatly inconvenienced by the acts of the defendant and proposed the sum of 80,000,000/= in general damages. Ms Susan Odongo did not address me on the issue of general damages.
The plaintiff was first unlawfully interdicted on 4/9/2003 and again on 25/9/2003. Though in his letter of interdiction dated 25/9/2003 the Chairman District Service Commission under took to invite the plaintiff to defend himself it is now getting to three years since the plaintiff vacated his office in the wake of death threats. He has not been receiving his salary for all the above period though the defendant admitted his salary is being paid. This must have put a lot of strain on his life and subjected him to distress and anxiety. Being denied his salary for nearly two years and half must no doubt have greatly embarrassed him and injured him financially.
Though Mr. Odongo proposed a figure of shs 80,000,000/= under this head, he did not back it with any recent similar award. However the closest case I could lay my hands on was that of Isodo Abdul vs. Arua District Local Government Misc Application No. -2-.CV-MA-0058 - 2004. In that case the applicant who was the CAD of the respondent was wrongly interdicted on the report of a Select Committee without the District Council following the laid down procedure in the Local Government Act. By the time of the ruling the applicant had been on interdiction for roughly two years. This Court found that the interdiction was unlawful and awarded the plaintiff shs 50, 000,000/= (fifty million only) in general damages. In the instant case the interdiction was equally unlawful and by the date of this Judgment the plaintiff had been on interdiction for two and half years. Having taken all the circumstances of this case I consider an award of shs 55,000,000/= will meet the justice of this case.
When the IGG sent his report to the District Service Commission it at once interdicted the applicant in complete disregard of the provisions of the Local Government Act which I find arbitrary. After having received the letter of the plaintiff pointing out that it had acted irregularly and withdrew the first interdiction, the District Service Commission again interdicted the plaintiff upon receiving instructions from the council though such an instruction was not accompanied by a charge of the offence against the plaintiff nor with evidence that the council had resolved to remove the plaintiff with a % votes of the council members, This again was contrary to the Local Government Act and therefore an arbitrary act on the part of both the council and the District Service Commission.
After another council meeting at which the plaintiff was absolved of the allegations against him the LCV Chairman instigated members of the public to threaten the life of the plaintiff and to harass him through telephone messages. He carried out this to another level when he called a meeting or rally and poisoned the minds of the public to reject and actively oppose the plaintiff if he resumed his office. The conduct of the Chairman LCV in this respect was inexcusable and in total breach of the plaintiffs constitutional rights. This conduct was un- constitutional. All in all I make an award of shs 5,000,000/= to the plaintiff by way of exemplary damages.
The plaintiff prayed for interest on (a) (b) and (c) at 45% per annum. Mr., Odongo and Ms. Susan Odongo did not address me on the matter of interest and therefore I was not given the basis for this rather excessive rate of interest. A general rule on the award of interest is that a commercial rate will be awarded if the subject matter of the suit was commercial but in all other cases interest is at court rate. As there is no evidence that the claim involved a commercial transaction, I disallow the rate of interest claimed which is even above the bank commercial rates and award interest on the general and exemplary damages at Court rate from the date of Judgment until payment in full.
HON, AUGUSTUS KANIA