THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT JINJA
CIVIL APPEAL NO. 034 OF 2001
CENTURY BOTTLING CO. LTD.:::::::::::::::::::::::::::::: APPELLANT
MALEKA LILLIAN :::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT
[Appeal from the Judgment of Her Worship Agnes Nkonge (GI) dated 21st November 2001 in Jinja C.M. Court Civil Suit No. 52 of 2000]
The trial court framed two issues for determination as follows:
2. Whether the plaintiff was entitled to the remedies sought.
In their written submissions before the trial court, the advocates for both the plaintiff and the defendant argued both issues together. The plaintiff/respondent’s counsel argued that the defendant did not deny that shs. 1,379,231/= was due to the plaintiff as her terminal benefits. He further argued that the defendant failed to prove that the plaintiff was responsible for the loss of shs 4.4m and this was contrary to the provisions of sections 100 and 102 of the Evidence Act. That as a result the plaintiff was entitled to the amount claimed and the costs of the suit. Counsel for the defendant/appellant argued that the defendant had produced two credible witnesses and proved that the plaintiff was responsible for the loss of shs 4.4m. That it was the company’s policy to withhold any monies due to an employee where he/she owed the company money. That as a result, the company was entitled to deduct shs 1.2m from the plaintiff’s terminal benefits to recoup its loss and the plaintiff was thus not entitled to the amount claimed.
The trial magistrate found that the plaintiff had proved that the defendant owed her shs 1,379,231/= as terminal benefits. That the defendant had failed to prove that the plaintiff was responsible for the loss of shs 4.4m and as a result, the plaintiff was entitled to the amount claimed and the costs of the suit. The defendant appealed this decision on the following grounds:
The appellant proposed that this court set aside the judgment and decree of the lower court, dismiss the respondent’s suit and allow this appeal with costs.
The parties’ advocates each filed written submissions in the appeal. The appellant’s counsel filed his submissions on 11/02/2009 while the respondent’s counsel filed his on 26/02/2009; he also relied on the submissions he filed in the court below. The appellant’s advocates did not file a rejoinder. Both counsel argued the two grounds stated in the memorandum of appeal separately and in the order framed therein. The two grounds will be addressed in like manner by this court.
With regard to first ground counsel for the appellant asserted that the trial magistrate erred in law and fact when she found that the appellant failed to discharge the burden of proving that the respondent was not entitled to the sum claimed due to several reasons. The first was that by the evidence of Nkoko Robert (DW1) the appellant proved that the respondent contributed to the appellant’s loss in the sum of shs 1,200,000/=. That DW1’s testimony also showed that disciplinary proceedings were held in which it was established that the respondent caused the loss complained of, and that the respondent attended the said hearing. Further that DW1’s testimony established that it was the policy of the appellant company that before terminal benefits could be paid to an employee he/she had to clear all monies owed by him/her to the appellant. That the appellant company had duly reconciled the books left by the respondent and found shs 4,400,000/= missing and the disciplinary hearing arrived at the decision that the loss should be apportioned between the respondent and two others with the respondent paying shs 1,200,000/=. That this had to be deducted from her terminal benefits which was done. Further that DW1’s testimony was corroborated by that of DW2, the Financial Controller of the appellant company.
Counsel for the appellant contended that s.101 of the Evidence Act placed the duty on the respondent to prove that the facts that she alleged existed. That the appellant company had established that there was ground for appellant’s withholding of the amount claimed by the respondent from her. That the trial magistrate therefore erred in law and fact when she placed the burden of proof on the appellant company who had defended the suit and proved that the appellant company was entitled to withhold shs 1,200,000/= from the respondent because she caused the appellant financial loss. As a result, on the balance of probabilities the appellant had proved its case against the respondent. Counsel for the appellant further submitted that after the appellant adduced evidence the burden rested on the respondent to prove that she was not liable for the loss occasioned to the appellant. That as a result the trial magistrate erred when she found for the respondent on the belief that the appellant failed to discharge a burden that did not rest on her. The appellant’s counsel relied on Cross on Evidence, 3rd Edition, at page 78.
It was also Mr. Okalang’s contention that the appellant failed to prove that there were disciplinary proceedings against the respondent because no documentary evidence about the alleged proceedings was produced in court. That “DE1,” a memorandum from DW2 to the salaries clerk of the appellant company did not prove that there were disciplinary proceedings against the respondent. Further that there was no proof whatsoever that the respondent was summoned to attend the alleged proceedings. Mr. Okalang further contended that DE1 only proved that the respondent was not a party to the alleged disciplinary proceedings because they took place after she had left her employment with the appellant. That as a result, ground 1 of the appeal should fail.
In the lower court Mr. Okalang had raised the same arguments. He also adverted to a further sum of shs. 267,078/= being payment for overtime assignments carried out by the respondent that were not claimed in the respondent’s pleadings.
While addressing the respondent’s entitlement to the amount claimed, after extensively reviewing the evidence on both sides and the submissions of both counsel the trial magistrate held thus:
It is my view that the defendant have (sic) failed to discharge the legal burden of establishing that the plaintiff caused loss to the company and that the defendant was entitled to deduct from her terminal benefits. No evidence was adduced to prove that there was loss of 4,400,000/= to the company. The case of SEBULIBA VRS. COOPERATIVE BANK  HCB 129 refers.
In my view upon taking evidence as a whole I find the plaintiff has proved her case on a balance of probabilities and found (sic) that she is entitled to the suit sum. And judgment is hereby entered in her favour.
In view of the aforesaid holding I find that the plaintiff is entitled to the suit sum of shs 1,379,231/= and costs of the suit. The additional sum claimed by the plaintiff and her counsel are hereby dismissed. Judgment is entered in the decretal sum of shs 1,379,231/= and costs.”
The evidence on the respondent’s side was very clear. She testified that she was employed by the appellant and retrenched on the 12/6/2000. That by the retrenchment letter she was informed that her terminal benefits would be shs 1,379,231/=. The letter which was attached to the plaint as Annexure A was not admitted in evidence. However, the appellant’s witnesses did not deny that it existed and they named the same amount claimed as due to the respondent as well as shs. 267,078/= being payment for overtime.
Regarding the loss of shs 4.4 million the respondent narrated the daily procedures in her duties as well as the role of DW1 as follows:
The amount of money would not be reflected in the un receipted book and reconciliation. Un receipted money would not appear in the books and reconciliation, it would also not appear on the bank statement. The system would not fail because of the above. I would be surprised if this money appears in reconciliation.”
On the other hand Nkoko Robert (DW1) confirmed that the respondent was supposed to report to him as Depot Controller and he was supposed to reconcile the books. What was striking about his testimony was the process in which he found the money that was alleged to have been lost as follows:
One also wonders whether the customers where the best persons to establish that they had paid for the goods, especially when they had no receipts to show that they had paid. It appears to me that there was a racket between the customers and the stock controller to get goods without official payments to the cashier, and the loss was at the point of delivery of the goods. It was not established that the respondent was involved in the scam because the money alleged to have been un-receipted was not proved to have been found with her; Sajja and Mwogeza who were alleged to have seen the money were not called as witnesses to prove this fact. By this testimony alone, I find that the appellant failed to link the loss of shs 4.4 million to the respondent.
In the circumstances, I find that the trial magistrate was correct when she arrived at the finding and ruled that the appellant had failed to prove that the respondent was not entitled to the amount claimed because appellant failed to prove that she contributed to the loss. Ground 1 of the appeal therefore fails.
The two grounds of this appeal were intertwined and it was difficult to draw a line where ground one ended and ground two began. All the same, I will deal with the second ground because the parties desired a specific answer to the question whether the trial magistrate came to a correct finding about the remedies that the respondent was entitled to.
With respect to this ground, counsel for the appellant submitted that a hearing was held in which it was established that the respondent was a party to the loss of shs 4.4m. That as a result, according to the company’s standing policy, the company was entitled to withhold shs 1.2m/= from her terminal benefits. It was submitted for the appellant that the testimonies of DW1 and DW2 showed that there were disciplinary proceedings in which it was found that the respondent was guilty of causing the loss. It was further submitted that the burden placed on the appellant to prove the loss had been discharged by these testimonies.
Counsel for the appellant also submitted that it was fair for the appellant to withhold shs 1.2m from the respondent’s terminal benefits because it was the appellant company’s policy to do so. It was also contended that the respondent had failed to explain how the monies in issue got lost yet she admitted in cross-examination that the monies could have been received and no receipts issued. Counsel for the appellant further contended that the finding of the tribunal that investigated the loss were proper and the appellant was right when she withheld shs 1.2m from the respondent and offered the respondent a cheque for the balance of shs 29,000/=, though she rejected it.
Turing to the claim for overtime which came up in the testimony of DW1, the appellant’s counsel submitted that by the time the calculation of the respondent’s dues was done, she had not submitted her overtime cards. That to award the respondent the amounts claimed in the plaint without considering and deducting the monies she had lost would be to unjustly enrich her. Further that the respondent’s refusal to collect the balance due to her after deducting the monies lost showed that she had accepted the findings of the investigation that she contributed to loss of company money. That the appellant was always ready and willing to pay the respondent the balance of shs 29,900/= after recouping the loss she had caused to the company. In conclusion it was submitted that the respondent was not entitled to the amount claimed and that her suit should be dismissed with costs to the appellant.
For the respondent, Mr. Okalang reiterated that the appellant had failed to prove that the respondent caused loss to the appellant company. Further that the appellant had failed to prove that disciplinary proceedings were held in which the respondent was found guilty of causing loss. He thus submitted that the trial magistrate was right when she found that the appellant had failed to prove the loss and that the respondent was entitled to the sum claimed and costs of the suit. In addition, Mr. Okalang prayed that this court invoke its inherent powers provided for in s. 98 and s. 80 (1) (a) and (2) of the CPA (i.e. determine the case finally and exercise the same powers as a court of first instance would) because of the following reasons.
The respondent sued the appellant way back in 2000 for shs 1,379,231/=. Judgment was entered on 13/11/2001 for the same. The appellant obtained stay of execution and filed this appeal and as a result the respondent has still not received payment of the amount claimed. Further that the appellant filed her appeal on 28/12/2001 but she never bothered to fix the same for hearing. The respondent was always interested in having the matter disposed of and thus constantly fixed the appeal for hearing. That as a result, it was now 8 years since the suit was instituted and the respondent has been denied use of her terminal benefits for that long. That this was unjust and court should redress the injustice by granting interest on the amount claimed at any rate that court deems fit, from the date of filing suit till payment in full. Mr. Okalang cited s. 26 (2) of the CPA which provides for payment of interest on decrees for money, and Halsbury’s Laws of England 4th Edition, Vol. 32 at para. 53, where interest was defined as compensation. Since the appellant filed no rejoinder, I did not have the benefit of her advocates’ submissions on this point.
I have already agreed with the findings of the trial magistrate that on the basis of the testimony of DW1 and DW2 the appellant failed to link the loss of shs 4.4m to the respondent. What remains to be established is whether the appellant proved that there were disciplinary proceedings against the respondent wherein it was found that she participated in causing loss to the appellant. It also has to be established whether the appellant proved that there was company policy which required that monies owed to the company by retrenched staff be deducted from their terminal benefits before they are paid, and if so whether such policy was lawful. If these three questions are answered in the positive, the appellant would have proved that the respondent was not entitled to the sum claimed.
With regard to the proceedings to investigate the loss of shs 4.4 m, the respondent testified in-chief as follows:
For the appellant DW1 testified in the following manner:
Although DW1 testified that there was documentary evidence to show that proceedings against the respondent were held, none was produced in court yet documentary evidence would have been the best evidence to prove serious proceeding such as those alleged by the appellant’s witnesses. In spite of DW1’s evidence earlier on that the respondent had been difficult to find when he was making his inquiry about the loss at Jinja, there was no documentary evidence to prove that the respondent was indeed summoned to proceedings to investigate her involvement in the alleged loss of shs 4.4m. This is in spite of the fact that DW2 testified that in such proceedings,
Regarding the findings of the proceedings Jeffy Sebunya Mukasa (DW2) testified thus: