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BA-r(CLAYS BAi'ii( OF UGAiiDA APPFJI,I,AT{1'

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coD!-'REY MiiB I Rii -t{frSPOiiDFiiiT

(Appeai from the Judgment anci l.recree of Lhe iiigh t,ourt OI [,ganoa
at i(ampaia (okaiebo, J. anci revieweti by Tinyinonrii , .l )
date<i 5th May , i99Z in iiigh Court (:iv j i Suit i'io. i. i.t it 4 of i 99it )

o JllIlGi,iEji_T oF t(AifYEli! !t_B4 . J-s-q-

This is an appeai from the jurigment ano oecree or rnP hlgn l;ollrr
of Uganda deiivered by tlkaiebo ,-i. on 5th May, I YYI ano revt 6w60
by Tinyinon<ii J, on 25th iiay, i99ii .

The backgrounri to this appeai is as foliows:

The Respondent entered into the empioyment of Barclays Bani{,
r-nternational Ltd. on i2ioio9. Barciays Bank Internatjonai Ltd.
was iater restructured an<i named Barclays Bank of irganda Lto.

Between his appointment i n ,rlliy i gh9 and r,nc oay nls servl ces
were termrnateo summarlry on the 3 ist iiay, I vY(r, tne xesponoenf
 served the appei iant in variolls capaciiies inclllding those of
branch manager and depltt y staff managar. The -xesponrient
jnstjtuteri iii gh a:otlri sl)ir iio: iirCr4li 99ir against thc appeiiant
ciaiming damages for wrongfu i <iismissal. Judgment was given in
his favour with elght heads of unqtlant if i e<i riamages awarrieri to
him. ?he heari.ng and Judqment- in the iiigh Cour:t were presideri
over by Okaie'Do J. The app€i iant f i ieri a i{otice of Appeai
against the judgmFnt. anri orciers of the iiigh (;ourt.. In t-he
meantime, pl-aintif f who is now the -xaspondent found it <ii.f f icult
to have a decree extracted becattse of the ttnqttantif jed damages
awarded by Okalebo J. The mattor was referred to Tinyinondi, .I .

o who settied the torms of the ciecree under which the appeiianr was
to pay various amount-s represent-ing saiary for ihe rtnexpl red
period of his conLract, rent srrbsitii.es, me<i.i cai suilsi<iies, leave
aiiowance, entertainment al iowance an<i ret irement banef its
totaiiing the sum of iig, shs. 5:i,884,4i6, with interest ai- 45*
from the date of jurigmeni. Tire triai jrrdge ftlrther ordered that
th6 transport and iuncheon sttbs jd j.cs were to be pairi from the
t ime the -nespondent was ri i smi sse<r- ttp to t-he <iate where he woll I d
have retire<i from the empioyment of the appciiant. On 6ij i97,
the terms of the ciecree were finally sattled. This appeai is
against the tiecisions of the iiigh Court inciuding the riecree.

Four grounds of appeai are ii ste<i in the Memoranrittm of Appeai

O and they are :
i- The iearne<i trial jucige erreri in iaw and on t-he f act's
in holding that dismissai hry tho Appe] i ant- of the -xesponrient was
wrongfu i .

2- The iearneti triai ju<ige erred in iaw anri on the facts

in hoiding that the Appeilant's empioyment contraci with f.hB
Respondent couid not- he terminated rtntil. t-he Respondent at-tained
the age oi 55 years "ialI tiltll t.he expiration of .iCr years of
servic€ with the Fespond6nt, whi chever was the eariier.
3- Further or Aitcrnatjveiy, i f the respondent's riismissa'l
by the appeiiant- was wrongful which js rienieri, ihe I earneri rrjal
jurige err6d i.n iaw anri on the facts in noi awarriing ihe
respondent what he wouid have receiveri in lieu of noiice but
 3

instead awarding the Respondent as special damages his salary and

oEher allowances up Eo t.he t j.me when he would attain the age of
55 being a peri,od of nine years and furE.her, in awarding interest
thereof at 45t per annum from judgment tiII paymenE.
4- The learned trial judge erred in awarding the
Respondent his pens j-on dues when in fact they had not yet
accrued.

Counsel- for
Ehe appellant, Mr. Masembe Kanyerezi, submit.ted that
while the RespondenE was employed as branch manager, his acts and
conduct. in relat.ion t.o his duties became the subject of criticism
and warnings by t.he appeffant.. The criE.icism was wefl-founded
o and based on the persistent breaches of duty committed by the
Respondent as a manager of a lending bank branch. Counsel
referred to at least. three let.ters wri!ten at different times to
the Respondent by the appellant pointing ouE the breaches by the
Respondent. and warning him not to repeat the same. These
breaches consisted of the Respondent.'s habit of lending more
money to creditors in excess of his discreEionary powers Lo the
detriment of the appeflant's int.erests. These excesses were
indulged in by the RespondenE. contrary to the standing orders
which bound him and inspit.e of the warnings he had received from
E.ime to time from his employer. The last. straw u,/as when the
appellant received the Inspection Report, l-989, (exhibit D 9),
which gave details of t.he Respondent's shortcomings. Counsel for
o Ehe appellant. submitted that it is then Ehat the appellanE
decided t.o exercise its powers of summary dismissal. On 31st
May, 1990, t.he Managing Director, Mr. E.N. Bowman, on behalf of
Ehe appellant, wrote a letter, (exhibiU Dl0) to the Respondent
as follows:
"The Board have carefully considered the lending portfolio
at Embassy House Branch whilst you were manager tlEre lase
year. The position of over 40 accounts total]ing some Ug.
shs. 22 million is of considerable concern and it is the
view of the Board, Ehat there is a strong doubt. as to
recovery. The Board considers these Lendings to be negligent.
and shows gross incompetence on your part. The Board
therefore approves your dismissal, from the Bank with
immediat.e e f fect. "
 ,1

Mr. Masembe Kanyerezi referred this court to documentary ard-

evidence which was presented in the court below showing all Lhe
act.s of breaches of duty and negligence. He further showed
evidence given in the same Court. by the RespondenL himself
admitting to some of these breaches and acts of negligence.
Counsel concluded therefore that the appellant was amply
jusEified in effecE.ing summary dismissal of Lhe Respondent. Mr.
Masembe Kanyerezi referred Eo the terms of the employment
conEracE and in particular to clause 13, (exhibit or) r,tf,r,i- ct^. r'C"r -il,
"provided that should you at any time either during your
probationary period or afterwards, commit any breach of the
condit.ions herein contained or be guilEy of unsatisfacLory
conduct inside or out.side the Bank, the Bank reserves Ehe
rj,ght to dismiss you wit.hout notice. "
o Counsel Eherefore argued that the trial judge made an error in
failing to take into account this sEaLe of affairs in the
performance of tshe RespondenE or in regarding t.hese serious
breaches of duty as unimportanE or trivial . Counsel referred t.o
portions of the judgment of Okalebo ,J. Thus, at page 8 the
learned judge observes,
"IE is evidenE E.hat the plalntiff's conduct was not perfect
throughout his employment. However, he offered explanations
where t.here were problems. I consider the shortcomings as
the normal short.comings ... which would not call for
dismissal . I Eherefore hold that Lhe plaintiff's dismissal
was wrongful for which he oughL Eo be compensated.
Later on in his judgment, Okalebo ,f. states,
o "In Ehe hearing of the case, Ehe plaintiff maint.ained t.hac
he discharged his duties diligently. That where he lent in
excess he was authorised and Lhe where t.here were queries,
he offered saEisfactory explanations. The defence offered
no evidence in rebuttal ..... I therefore hold (that) there
$ras no evidence enough on which one could hold (t.hat) the
plaintiff was negligent. in his duties"
CounseL for the appellant. furt.her submitted t.hat in his view the
trial judge misconceived what is meant by summary dismissal.
Counsel referred to page 7 of the judgment. where t.he learned
trial judge said,
"He further Eestified that the plaintiff case was not
referred to Ehe disciplinary commiEEee. This I hold was
against the principle of natural justice, when t.he defendant
could summarily dismiss any of its employees. For such
 5

dismissaf should be where t.here is a breach of duty which

is so serious as to amount to the servant's repudiation of
his obligaEion under t.he contracL of employment. Suits
(sic.) would include disobedience of lawful orders, wilful
darnage Eo empLoyer's busj-ness, etc. Such grounds cannot be
,U{) nscr-4 dedtlcEed, from facts and/ by our facts Lhe defence has nol
adduced evidence enough to justify summary dismissal."

Mr. Masembe Kanyerezi maintained that the breaches committed by

the Respondent justified the act.ion of the appeIlanL in
dismissing him summarily. Counsel cited Chitty On Contracts.
25th ed, Vol .II pp. 823-827, where Ehe learned editors define and
explain summary dismissal-s and give illustrations of misconduct
and breaches which justify the same.
o On this ground, Counsel concluded that an employee must show a
reasonable degree of compet.ence and due regard must be shown for
the !erms and conditions of employment., especially if Lheir
disregard is likeJ.y Eo cause l-oss as in the case of banking. The
appellant had given adequate evidence to show that it.s summary
dismissal of t.he RespondenE was justified. On the other hand,
Iearned counsel criticized the casual manner in which the trial
judge dealt wit.h the evidence against E.he Respondent. F'urt.her
counsel submit.t.ed that the judge was wrong and on this ground,
the Hj-gh Court judgment. should be reversed.

For Ehe RespondenE, Mr. Bitangaro opposed E.he appeal in its

enE.ireEy. He made submissions on t.he first ground of appeal
o separaLel-y, grounds 2 and 3 together, and concl-uded with ground
4 of appeal . He support.ed the findings and judgment of the t.ria}
j udge .

On ground one of appeal, Mr. Bitangaro contended that the facts

of the case show quite clearLy Ehat t.he RespondenE. was wrongfully
dismissed by t.he appellanE. It was counsel's contention t.hat
between SepEember. 1972 and July 1989, the Respondent was
repeatedly and progressively promoted Eo higher IeveIs of
management by the appellanE on the basis of meriE. He climbed
the ladder of promotj.on up to the post of Deputy St.af f Manager.
He cont.inued t.o manage the affairs of t.he appellant until he was
 6

wrongfully and arbitrarily dismissed. As to whether or not he

committ.ed breaches of the terms and condj-tions of employmen!
deserving summary dismissal is a matEer of fact. Counsel
referred court to the terms of the cont.ract. of service (exhibit.
fi1) bet.ween the appellant and the Respondent. He cit.ed the
contents of clauses 2-13 and submitted that between them the
provisions of these clauses governed t.he agreed duties and leveI
of performance by the Respondent. Counsel argued that the
findings of the trial court were that the Respondent had not
breached any of the major terms contained in the service cont.ract
or committed negligence and therefore his summary dismissal was
wrongful . He asked courE to uphold E.he findings and judgment of
o the High CourE.

I int.end to deal with and dispose of the issues raised as they

appear in the Memorandum of Appeal and as argued by learned
counsel for bot.h parties.
On the first ground, appellant contends that the learned judge
erred in law and on t.he facEs in holding that the summary
dismissal of Ehe RespondenE by the appellant was wrongful To
resolve Ehis matter it j-s necessary, in my opinion, to first
d.iscover what is meant by summary dismissal and then relaEe thaE
meaning to the facls and circumstances of this appeal.
Where a service contract s governed by written agreement betr,reen
.l-

the employer and employee as in Ehis case, termination of

a employment or services to be rendered will depend both on the
terms of the agreement and on the law applicable.

Under the t.erms of employment. contained in t.he service contract

(exhibit Dl,) dated 5t.h ,lune, 1969, clause 13, it was agreed
bet.ween the parties that. after the Respondent has served his
probaEionary period, and his appointment. is confirmed, he would
be a monthly servant of t.he appellanE with a proviso that :
"shoufd you at any time either during your probationary
period or afterwards. commit any breach of the conditions
herein contained or be guilty of unsatisfactory conduct
inside or outside the Bank, the Bank reserves the right t.o
dismiss you without notice. ,'
 '7

Clause 15 of t.he agreement. entitled the appellant to vary the

condit.ions of service aE any t.ime if it desired t.o do so and, in
a series of 1eE.E.er6 buEtressed by the appellant's rul"es and
conditions of employment of branch managers. the Respondent l,ras
informed about and cautioned against lending to cusEomers beyond
the permitted limits. One of the documents containing t.he
information about Iending limits imposed on the Respondent was
the Letter writ.E.en to him by Mr. Bowman, the managing Director
(exhibit D2), in which the Managing Direct.or sEated.

"I writ.e to advise you that t.he Branch Discretionary limits

have again been reviewed and the following increases are to
be ef fect.ive from receipt of this l-etter. Any advances
o previously under report to Ehis office need no longer be
report.ed unless they are operat. j-ng as unsatisfactory Lhat
you consj-der clarification as necessary in which case an AD
16 should be submitEed in the normalft way.
These limits are personal to you as Manager of the Branch,
and do noE apply to any subordj-nate fender who may
temporarily deputise for you
1.r..1,.. ,:.
The let.t.er went. on Eo describe in kind and figures the .lair* of
lending limits which were imposed upon the Respondent and
cont.ained the following detaiL:
I'Wit.h regard to excesses, a short-t.erm margj-n of 15? will
be allowed but if Lhe excess remains for a period of seven
days iE shouLd be reported Eo this office".
O Lastly, the let.ter emphasized the i-mportance of t.he Iimits by
ending wit.h the following ominous words,
"but it must. be stressed that in no way should advances
judgment. and conLrol be compromised or reduced "

The Managing DirecEor of the appellant was furEher constrained

to writ.e on this matter again on 19th January, L9A9 (exhibit D5)
referring Eo new revised Iimits of lending which were t.o be read
together wiEh the then current. handbook instructions and earlier
letters on the subject, dat.ed 30/1,2/8i and 14/1/gg (Exhibirs D2
and D3) .
 B

The above documentary information and inst.rucEions show clearly

Ehe great. importance the appellant. att.ached to Ehe powers and
Iending limits of the Respondent as a Bank branch manager. In
my opinion, ignoring them or repeatedfy exceeding Lhem coupled
with failure Eo report the same to the appellant within the
stipulated periods, would amount to a fundament.aL breach of his
cont.ract by the Respondent.
Managers in the banking business have to be particularly careful
and exercise a duty of care more diligently than managers of most
businesses. This is because banks manage and cont.rol money
belonging to oEher people and institutions, perhaps in their
thousands and therefore are in a special fiduciary relat.ionship
o with their cusLomers \"/het.her actuaf or potential . Thus, in
Harmer v Cornelius C 18s8) 5C B (N.S) 236, it. was held Lhat
where an employee holds himself out as being skj-Iled to do a
certain tsype of work and is employed on that. basis impliedly
undert.akes that he possesses and will exercise reasonabfe skiII
or compeEence in that work. Moreover, if is my opinion that in
the banking business any careless act or omission, if not quickly
remedied, is likely to cause great losses to the bank and its
cust.omers. Loose Ealk, irregular or unconditional banking acts
or behaviour coul-d Iead to specuLation abouE. and the undermining
of the reputation of the appellant and therefore foss of
customers and investors upon which the existence and business of
a bank depend. The duties and liabilities of banking are welf
a spelE out in the case of Row] e ds on v National West.mi ster Bank
Lrd (19 7B IWLR, 798 and in Nat.ional Bank Plc v Morqan (1985)
A. C. 656
When an employee is in breach of a fundamental term of his
employmenE. or guilty of sufficient misconduct, he or she may be
dismissed summarily wit.hout. notice, and, before the expiracion
of a f j-xed period of employment as was held in the cases of AEkin
Act.on, (1830 I 4 C & p. 208, Bason Dee p Sea Fishinq Co. v. Ansell,
( 1888 ) 39 C.H.D 339 and Clouston & Co. V. Corrv, (f906 ) A.c
122 .
 9

An employee may be summarily dismissed if he or she wilfully

disobeys any 1awfu1 and reasonable order of the employer. ChiLtv
on contract.s 26th ediEion, vol . 1I p. B2'l ,gives a number of
instances and precedents where employers are entitled to
summarily dismiss employees who f l-out or repudi-at.e essential
conditions of t.he contract of employmenE. In er v. Webb
(1959). I WLR 514, and corse v. Durham C.C. (1971), 1 wIR, 775,
courEs gave examples of where even one act of disobedience wiII
justify summary dismissal .

It fol-Iows of course, t.hat. summary dismissal is wj-thout. noE j-ce

and dismissal wit.houE. notice also implies dismissal wiEhouE a
a right to be heard first.

In my opinion, Ehe tri,al judge did not consider the seriousness

of t.he acts of the RespondenE who, on occasions, ignored or
flouted his terms of employment as far as Ehe tending limits were
concerned. Thus, at. page 3 of his judgment, t.he learned trial
judge, Okal-ebo . reviewed the evidence as presented in court.
,.1

showing that the appellant. had for sometime been dissatisfied

with the services of the Respondent because t.he Respondent had
failed to comply wiEh t.he warnings of the appel-Iant. regarding his
lending - excesse s . One of those $rarnings is referred to by Lhe
trial judge aE page 3 in his judgmenr as follows :

rrAs you are ful1y aware, there have been numerous occasions
o of your breach of discretionary limits and failure Lo report
excesses to Ehe head office, the actions by you have caused
considerable ext.ra work and possibility of f oss,'

Further on in his j udgment. , the learned judge refers to other

instances of breaches. When tesEifying, the Respondent admitted
these breaches of excess lending but trled to explain t.hem away
by showing t.hat. he had made improvement.s and profits in other
areas of his duties.
Thus, on page 24 of Ehe record of proceedings, the Respondent.
admits:
"There were some lending (sic.) in excess which I did not
report and the head office used to write to me asking why
I had not. reported. I used Eo explain and the head office
 10

used to get. satisfied. r'

However, no evidence was produced t.o show that the head of fj-ce
was always saEisfied with Respondent,s explana!ions. en the
contrary, whaE. evidence E.here is only shows appellant,s
dissaEisf act. j.on wiE.h Respondent' s acts . This is t.he subst.ance
of the letEers dated rlEh January, 1989, 17th Apri1, r989
(exhibiE. D5) 28th Apri1, 1989 (exhibit. D9), the Bank,s Inspection
Report of 1989 (exhiblE D8) and Respondent,s response to Ehe
leE.t.er dated 1Ith .fanuary, 1989, and Respondent,s letter dated
16E.h May, 1989 in which Respondent explained by st.ating thaE :

o "As regards advance control, I feel that r. he manaqement

concentrat.ed more efforts on operations and safeguards
against. frauds and forgeries as evj-dence.

Yet, t.he appellant produced ample evidence of unsatisfactory

conduct and of negligence on the part of the Respondent to which
Ehe l-atter had no reasonable answers.

Wit.h all due respect to E.he learned t.rial judge, I agree with
counsel for t.he appellant that t.he judge di,d not E.ake a1l this
evidence seriously and misconceived the principle of summary
dismissaf al-ready described in this judgment..

o Thus, on page 7 of his judgment. the learned trial judge observed,

I agree r,rith plaintiff,s counse1 in hi-s submission Ehat
being found guilty of unsatisfactory conduct presupposes
t.hat t.here is a t.rial where the concerned part.y is afforded
an opportunity t.o defend himself. And this is a cardinal
principle of natural jusEice....where the defendant could
summarily dismiss any of it.s employees. . . . should be where
there is a breach of duty which is so serious (as) to amount.
to the servant's repudiation of his obligation under the
contract of employment. (Such) suits woufd incfude
disobedience of lawful orders, wilful damage to the
employer's business, etc. Such grounds cannot. be deduct.ed
for facE.s and by our facts, the defence has not adduced
evidence enough to justify summary dismissal. Thus, here
t.he plaintiff's dismissal offended the spirit of natural
justice and here I will quote my brot.her Karokora ,I . (as he
then was) , in Mumira v NaEional Insurance Corporati on (1985)
 11

HCB 110

'The principle of naturaf justice atrt€ram partem must be

observed by bot.h financial and administrative tribunals
where a decision of Lhis fundamental principle of natural
justice, that decision is juseicj-able by the courts.'
He further considered a fair hearing as follows
'By fair hearing it is meant and evidenced the pe rson
charged must be given notice of charge and must. be present
and defend himself or may be Iegally represented, .
With respect, j-t is my opinion, that the learned trial judge
misdirected himself on the principle of summary dismissal whose
purpose is t.o effect an immediate terminaEion of employment
withouE not.ice or hearing. Furt.her, the trial judge complet.ely
o misconceived and mj-sinterpreted the words of Karokora J.as he
then was, in Mumira's case (supra) who was Ehen applying t.he law
of fair hearing to different facts and circumstances in an
entirely different legal criterion. In regard to MUM]RA'S
case. (supra) I agree with counsel for the appellant that. t.hat
case belongs to a category and species of cases where employment
is in some way, public employmenE. or j-nvof ves Ehe t.enure of an
office the holder of which is ent.itl,ed to the benefit of the
appJ-ication of the prj-nciples of naEural justice before they can
be dismissed as specified in t.he English cases of Steven
u. R. T. U. (19 7 7) I.C.R. 893 at p. 962 c-H , per Buckley. L.J, and
MaIloch v. Aberden CorDoration (1 9'17 1WLR 1578 at.p. 1. 596,
e per Lord Wi lberforce .

In Kavondo v.The Cooperative Bank Lt.d. Civ. Appl,. No. 19 of

1993. and Kiffundu v The Attornev General Ci vi-1 . App. No . 27
of 1993, this court dealt with cases where employees had been
similarly affected in one way or anoE.her and considered rules of
int.erdiction and t.erminal benefiLs, but in both cases, the courLs
were specifically deal j-ng wit.h interpretation and application of
sEaEutory or consti.tutional provisions governing the matters in
issue.

In my judgment, the triaf judge in this case erred bot.h in ]aw

and in facE by holding that Ehe summa ry dismissal of the
 72

Respondent by the appeLlant was wrongful and therefore Respondent.

r^ras entitled to damages. For the reasons I have given, the first
ground of appeal succeeds.

Ordinarily, my decision on the first ground of appeal should

dispose of Ehe second and t.hird grounds as set out in the
Memorandum of Appeal save for the RespondenEs, entitlements which
I consider as having been due and payable by Ehe time he became
t.he subject of summary dismissal . I wifl deal wiEh those
entitlement.s in ground four of appeal . However, before thaE I
will also briefly dispose of each of the other grounds of appeal.
o With regard to ground two of appeal counsel for the appellant
referred court. t.o several documentary exhibits which governed t.he
contract of employment beE.ween'dhe partj-es and to leading
authorities on the subjecE. which are reviewed Iater in t.his
judgment. One of the documents referred to was the contract of
employment (exhibit D1) dated 5t.h ,lune, 1969, in which t.he
Respondent is referred Eo as a monthly servanE. and under whose
terms the appellant. had the right to terminate the employment of
t.he Respondent. Legally by giving a mont.h,s notice. Counsel
submitted that where the employer fails to gj-ve notice in
accordance wit.h the terms and conditions of service, the
plaintiff is only enE.iE.Ied to pa).menE in tieu of notice.
a Counsel further contended that where t.he contract of employment.
does not. contain a specific provj-sion for giving notice, the Law
requires EhaE any part.y to that. contract need only give
reasonable notice.
Turning to ground three of appeal, Counsel for the appellant
conceded that in t.he present. case, had t.he Respondent continued
uninterrupted j.n the employment of the appellanc, he wouLd have
been enEitled to work until he was 55 years of age or until he
had served a period of noE less that. thirty years in employment.
These periods are deducibLe from readj.ng Ehe contract of
employment togeE.her with the appellant,s Staff pension Fund RuIes
(ExhibiE D. L2l . However, it was Counse],s submission that where
t.he parties are each enEiEled to give one month,s notice of
 13

termination as in the present. case and, the employee claims that.

no such noEice was given or whatever not.ice which was given was
unlawful, the only remedy is payment in lieu of such notice.
Counsef cit.ed Chitt n ( supra ) , and Br Guiana
Credit Cor oration v. Clement H iqh Da Silva. (1955) 1 WLR 248
aE paqes 259-2 50 , in support of t.his proposit.ion. Counsel
submitted Ehat the trial judge erred in Law when he held t.hat
since the RespondenE had been wrongly dismissed, he was entitled
to ful-l- payment for the remainder of hj-s term of employment,
which in Ehis case tras stated by the Respondent and accepted by
the learned judge as 9 years from t.he age of 55 years or 30 years
of employment.
O CounseL for the appellant criticised the judge. s awards as
unprincipled, unjustified and incomprehensible. He contended
that. in the firsE. p1ace, they were all unquant.ified and yet the
Respondent had prayed for specific damages in his plaint. tL was
Counsel's view that specific damages must be specially pleaded.
He further argued Ehat some of the damages awarded are
irrat.ional . He gave as examples, transport, Iuncheon and l-eave
aLlowances. It was counsel-6 contention with which I agree, that.
once an employee's services are terminated. whether right.J-y or
wrongLy, transport., luncheon or Ieave allowances, no Ionger apply
nor are they payable to such an employee.

o On ground 2 and 3 Counsel for the RespondenE dealt wit.h t.he

cont.ention by the appeLlant that the Respondent. had persist.ently
exceeded his lending Limits and argued Lhat the excess as
revealed did not amount to unsatisfactory conduct on t.he part. of
the Respondent. Counsel further submitted EhaE the matters
complained of in E.he Ietters of warning by t.he appellant. as shown
in Annexes (exhibit D3) and (Exhibit. D6) were satisfactorily
explained by him. Counsel further submitted Ehat with regard to
the excesses at. the Embassy House branch, it was cl-ear from the
evidence thaE at the t.ime t.hey were incurred, Respondent had
already left t.hat branch to take up his new appointment as Deputy
Staff Manager.
 t4
Counsel argued Ehat the Ewo excesses incurred at the same branch
while he was sE.il1 there can hardly amount to gross negligence
as claimed by the appellant. Counsel argued that the allegaLions
of excesses were not proved before the triat judge. In fact no
officials or audiE.ors were calfed to testify and verify the same.
Counsel therefore prayed courL to uphold the finding of the trial
judge that the appellant. had failed to prove unsat is factori {t
conduct on Ehe part of the Respondent as stipuLat.ed in Cl"ause 13
of Ehe service contract. and in the resulL that the dismissal by
the appellant. was wrongful . Counsel for the respondent also
supported the finding of the trial judge t.haE. by failing to give
noEice and an opportunit.y Eo the respondent t.o be heard, the
o appellant denied him the right to natural justice.

As to what. respondent was entitled to as compensat.ion for

wrongful dismissal, Mr. Bitangaro supported the awards granted
by the trial court. Counsel referred t.he court to the content.s
of the service contract and t.he Pension Rules whj-ch together
provided that., once confirmed as a mont.hf y servant, the
Respondent would work for E.he appellant. on a permanent. basis
until he attained the age of 55 years old or completed 30 years
of employment wit.h the appellant. From this, counsel argued that
these terms can only mean that in the event of t.he Respondent.
being wrongly dismissed, the appellant would be 1egaIIy bound to
a honour al-f E.he terms for the remainder of the period and the
pension entj-tlement for the same period as if he had remained in
the employment. the whole of the service cont.ract Eerm. Counsel
c i t.ed Southern Hi- chlands
Tobacco Union Ltd. v. David Mc Oueen,
1960 90 .in supporE of his arguments. On this ground,
Counsel for t.he Respondent concluded by saying that in this case
t.here was wrongful dismissal and cfause 13 of the service
contract did noE. make any provision for notj-ce to empJ-oyees who
had already served their probation period. In consequence, an
employee who is wrongfully dismissed is ent.itled to all the
benefits of Lhe conE.ract for t.he remaini-ng years of service
which, amounted to nine years. Mr. Bj-Eangaro prayed court. t.o
confirm t.he findings and judgment of the triaf court on these
 15

grounds

On ground two of appeal, I agree with the submission of counsel

for the appellant t.hat. the learned judge erred in 1aw in holding
EhaE Ehe contract between the parties could not. be terminated
until E.he Respondent. attained Ehe age of 55 years old or until
the expirat.ion of 30 years of service by him whichever was
achieved earl ier .

In my opinion, where any contracE of employment, like the

present. st.ipulates that a party may terminate it by giving
noL.ice of a specified period, such cont.ract can be terminated
a by giving Ehe stipulated notice for the period. In default of
such noEice by the employer, the employee is entit.Led to receive
payment. in lieu of not.ice and where no period for not.ice is
st.ipulated, compensation will be awarded for reasonable notice
which should have been given, depending on the nature and
duration of employment.. Thus, in the case of Lees v. Arthur
Gre a ves I-,td . (197 4\ I c.R. 501, ir w as held t.hat. payment in Iieu
.

of notice can be viewed as ordLnary giving of not.ice accompanied

by a waiver of service{ by the employer t.o Lerminate by not.ice.
Indeed, in the EngI i sh case of Rex SE.ewart Jeffrie s Parker
Ginsberq Lt.d v. Pa rke r ( 1988 ) r.R.L.R. 483 at p. 485, it was
held that. notwi ths t.anding statutory or employment. contract
o provisions, if the parties agree upon a payment in Iieu of notice
for a period shorter that st.ipulat.ed, the employer is entitled
to terminat.e t.he contract of empl-oyment by offering Ehe payment
in lieu of notice. The right. of the employer t.o t.erminat.e the
conEract of service whether by giving noEice or incurring the
penalty of paying compensation in lieu of notice for the duration
stipulaE.ed or implied by the contract cannot be fettered by Ehe
courts. The employee is only entitl-ed t.o compensatio., SrdH in
those cases where the period of service is f ixed.trlrtF"*t-
|ru r-is[ o"t t-r P #j '*{tl <t- t,

Counsel for the Respondent cited t.he English case of R

Baldwin d Ot.hers. (1964 ) . 40 (H. C. ) , in support of his
contention that. where E.he employer Lerminated employee, s contract
 15

unjust.ly. the latter was entit.led to compensation. That case 1S

of course di st. ingui shable from the present one where the
Eermination was, as already observed, Iawful . Nevertheless,
even in the R j.dqe' s case, t.he j-r l-,ordships observed,
"As to relief, if the respondent acted without jurisdiction
or in defiance of the rufes of natural- justice, t.hen Cheir
decision j-s a nullit.y and the appellant is entit.Ied as of
right to t.he declaration he seeks. In such circumstances
the court can neither impose terms upon the appellant. nor
require undertakings from him as a condition of granting
relief. In fact, he will not seek reinstatemenE as Chief
Constable and his main concern is the financial consequences
of his having been dj-smissed instead of being allowed to
resign. .....Such resignat.ion shouLd be treated as
effect.ive as from March 7. 1958 (the date of his unlawfuf
o dismissal) and to Iimit his claim against Ehe respondent
merely to hj-s being heard as to his entitlement. for a
pension. "

This case should afso be disting uished from B. Surinder Sinqh

. Government of the F ada7. i- i
^h ^f lvla 1a a t9 62 A 22
where the respondent was engaged for a fixed contractual t.erm and
not on permanent and pensionable t.erms. In my oplnion, the
measure of damages in a case where not.ice shouLd have been given
and was not. is limited E.o E.he amount of money the employee would
have earned under the cont.ract for the period until the employer
could lawfulIy have terminated it.',

If it had been necessary Lo decide, I would not agree with t.he

o argument advanced by counseL for the appelfant. that the
Respondent should have taken reasonable steps to minimise his
1oss. At his age and by t.he nature of his employment. in banking,
iE would not have been possible t.o be so easily reemployed,
especially wit.h summary dismissal hanging on his head.

However, in the present case, t.he contract of employment referred

Eo the Respondent. as a monthly servant and under those terms, t.he
Respondent would have been ent.it.Ied to a one monLhs, notice or
payment in lieu of notice, if I had held that t.he respondent was
entitled to noEi.ce before dismissal .
 ll
Thus, in BritiSh=riUtena (, r €io I L t.o I On V. (- lernen lJa
s1'tva. ( tvo) v, Lr_'l, 1f was oDserveo [nat

piaintiff was from the beginning of ihe coniract aiways

'rThe
at the risk that tite corporation coui ri have given him
reasonabie notice t-o terminat.e or pay him salary jn I jerr.
iiad the t--orporaiion taken ihis corrrse, the piarnijff corrl ri
have recoverBd no more than the sa'i ary pirrs other benefits
under t-he conLract for the perioo of the noiice, or a
payment <iown in i ieu, "

On ground Lhree of appeai, it js my opinion that thp triri jurige

in this casa erre<i when ire heid t.hai -r(espondent was ent ir'i cri to
o be comp€nsated for the remainrier of ihe term whet_h6r as ai
retirement age of 55 years or .'10 years of empioyment whichever
came eariier. r- am of the view that th€ triai jurige further
erre<i in hoi<iing thaL the Respon<ient was entit-ieci to ail thc
items iisted as rent, transport, me<iicai, iuncheon, ieave an<i
entertainment aiiowances beyond what couid have been ihe periori
OI notice or payment- in iieu of such notica. \The t-riai jurige
dacis-ion thaL these aiiowances were payabie from ihe periori the
piaintif f was <ii.smissed up to the dai.e when he woul ri have ret i rorl
from the empioyment of the appeiiant has no foundaiion in lah,.
If the empioyee is ihe one who js jn breach of thc ernpioyment
terms. as jn this casc, and the empioyer terminaies rhe (.oniraci
o of employnleni, the ernpioyer js not rrnrieir a duty to pay anything
for the remaining perioci of ihe coniract even in those cases
where the peri or; is f i:ieri. Therefore grorrnri three of appeai
wotr i <i have succe€deo.

Lastiy, Mr. i(anyereezi dealt with ground Four of appeai.

Masembe
He submitt.ed that enti.t-iem€nt to retirement_ and pension payments
can oniy become 5ys "d *nen an cmpioyee reaches the age of
retirement or the perio<i stipujateo in the conLract of empioyment_
as being the perio<i after which the pension becomes <iue. In thi.s
particuiar case, the retirement a9e is 55 years oid and the
period of servi.ce js J0 years, witichcvcr comes f jrsi-. Thn
evidence irefore triai court was thaf ihe -K6spondeni had neither
reached the age of 55 y6lars nor workeri for a ppriori of .i ir years.
 Counsei submjited ihai the learncd iriai jrrrigre erreri iroth in law
anri fact vrhen he heid that the retirement anri pension rights bad
now matured as a resuit of the courts' jutigment and $rere
theref ore due f or payment . i"ir. i,iasem'De i(anyerezi ci teri Chi tty -en
Contract s, volume l, 25th e<iition, at page 807, where ihe iearneri
eoltors statB:
"The mere fact that the empioyee 'necomes a member or tne
endowment- anti pension scheme for ihe pernlanent- staff of the
empioyer raises no irnpiieri term that. ihe empioyment cannot
be rietermined on reasonabie not.ica."

Counsei aiso c j ted Eirc i_Ajf s f pg.1..15-t.on

1rij&anq_a f!"!d!e_S_;ifA i
o -_Ennj<
Fund Ruies as contained in E;lfhi b'i i..U. i7.. iie suhmitt€d thai -Hrr'i e
(3 ) of the -xui es appi I es to the prpsent case . Tha r xrri c prov i ries
that:
'' tYo penslon ( otner rnan a rieferreri pens I on , sna I DEI

granrBo r.o any oi t rc I a j or messFng€r riismisseri r rom t he

service of the Bank "
In response, i'ir. Bitangaro contenderi that. jf ihis court f incis
that the triai ju<ige was correct- in hoiding t,hat the ri ism'i ssal
of the respon<ient was wrongfui and cnnfirms the jrr<igmeni in the
court beiow, it wil.i foiiow that -xaspondent was enti t.ieri to his
pension dues in fuii. Counsel furLher srrirmitteri that in that
event. the court wouiri find that ihese riues accrrreri immeriiat_eiy
o ju<igment was given. In i"ir. B j.tangaro's srr'nmi ss j on, Rui e (.i ) of
the Pension xul es <ii<i not appi y to the -K6spondent . arnl y ih€
Ruies which were containeri in Part i3 of ihe same -xrrl es appiied.

I do not agree with the srrbmission i.ly counsei for ihe Respondcnt
that if thjs couri- ha<i fotrrd that the t-riai jrrrige was correct in
hoiding that the <iismissar of the -xespon<ient was wrongfui anri
confirmed the judgment of the l earneri triai jrrrige that it wolrld
foiiow that the Respondent was entitleri to his pension dues jn
fuii an<i that such dues would accrue jmmeri jately after judgmont,
was given. The Barciays Bank of ir-ganria i,'i mi teci St.af f Pension
Fund Ruies provi<ie in -xuie (:l ) i hat
 t't

" iio pension (other ihan deferreri pens i on ) shaii 'ne grant ed
to any officiai or messenger ri i smisseri f rom ihe servi ce of
the tsanK'.

The triai judge erreri in iaw anri f act- in faiiing IO app,:e c l are

these provisions.

In my view, oni.y deferred pension rights can be realised and

(^
moneysdueunderthem.necomepayabie'i.romtheevjdenceofthe ni't! rne
l| Respondent which was contradicteri neither by the evidenceAer ''

submissions on behaif of the appeilant, both empioyer and ihe

o Respondent contri-bute<i t"o the pension scheme In my opinion,
such contributions together constittlted tile deferre<i pension of
the -xespondenl at the time of his sunlmary <iismissai and, i n my
judgment, such rief erreci pension which had aiready an<i f tti iy
v€sted in the Respondent- at the t i.me of hi.s tiismissal shoul ri be
paid to him as of right.

Ground f our sttceeds in part. For the reasons f have givcn, [ar61l
subject to my views on grottnti f otlr, T worri ri ailow th js appea'i in
part. I woul.ti set aside Lhe jurigmeni and decree by the High
Court save as regarris ricferreci pension. As lhe appeiiant has
succeeded on three grottnris and pari of grorlnri f ottr, f wot) i d award
o theappeiian:-3i4ofthecosis'ooihhereandintheiiighC;orlri'

tlr ftL,,t, w-/lr|. I YY

UA'I'trU AT M IiII UU %q .I]AY trF
J {

e:l,k^b
tlu J 1U G.W iiAiiYE r iiAMBA
.J U5'1'I U 1,, ari 't'HE 5 UPREi{E C r ) r,l('l'
 THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA AT MENGq

(CORAM: TSEKOOKo, ,r.S.C., KANYE rrrAMBA, ,J.S.C. AND MUKASA_

KTKONYOGO, ,J. S . C. )

CIVIL APPEAL NO. l- OF 1998

BETWEEN
BARCLAYS BANK OF UGANDA LTD. AP PELLANT
o AND
GODFREY MUBIRU RES PONDENT

(An appeat f rom t.he j udgrnent and Decree

of the High Court (Oka1ebo, Ag. J.)
daLed 5th May 1992 in lligh Court. Civil
Case No. 1004 of 1990)
.JUDGM ENT OF TESEKOOKO. !T s.c
I have had the benefit of reading in draft the judgment
prepared by Kanyeihamba, J.S.C. and I agree with his judgmenE.
This is an appeal from Lhe High Court. judgment. and decree
by Okalebo, Ag. ,f ., dat.ed 5th May 1992 ii which t.he learned judge
granted cert.ain reliefs againsE the appellant as defendant. The
o effect of the judgment is t.hat. t.he appellant was decreed to pay
shillings 53 ,895 ,064/ = t.o t.he respondent because of wron,qf u1
dismissal .

On 12t.h .fune 1959 bya leEter (exh. Dl) t.he appellanL,s

predecessor, Barclays Bank Internat.ionaf, appointed Elte
respondent a clerk. The appoint.ment was subject to condit.ions
stipuLated in exh. D1 . The appe1l-ant,s predecessor was
subsequently transformed in E.he name now borne by the appellant.
The respondent remained in t.he employment of Lhe appellant. and
in the course of time was promoted to various post.s including
thaE. of being a Branch Manager based at Embassy House, Kampala
Branch. It was the case of the the appellant. that in the course
 of 1988 and of 1989 as branch Manager, the respondent performed
his services unsat i s factori Iy and negligently in Lhat he granted
loans t.o customers either in excess of the limit arrowed to him
by the head office or he granted unsecured loans. Because of
this conduet E.he head office warned the respondent in writing by
letters now exh. D3, D4, D5 and D7 within a space of 5 monLhs.
He was compelled t.o explain his excess tending or Iendj.ng withouE
secuEity by his leE.ter dated 16th May 1989 (exh. D9) LaEer he
was removed from the post of Branch Manager and made Deputy SEaff
Manager for St.affing, personnel and Training, a port folio which
did not all-ow him to give out Loans. On 31st May 1990, by ics
letter exh. Dl-O the appellant summarily dismissed
t.he respondent. because -
o ,,The position of over 40 accounts tot.allinq
some U. Shs. 22m/= is of considerable .o.,.E..,
and it is the view of the Board that. t.here is
strong doubt. as to recovery. ,I,he Board considers
these lendings to be negligent and shows g.o". --
j-ncompetence on your parE
',
.

The respondenE filed an action in the High Court against Lhe

appellant claiming special and general damages on the ground of
wrongful dismissal . Okalebo, Ag.,J. heard the suit and decided
it,in favour of the plainEiff and granLed certain reliefs in
general terms. The fearned Judge did not. quant.ify in moneLory
terms Ehe reliefs grant.ed. The judgment was subsequently
reviewed by Tinyj.nondi,,J, as a consequence of which iL was
decreed that. the appellant. was to pay E.he sum of mo€elz- Shs.
o 53, 895,O54/= representing basj-c salary, rent. subsidies, transport.
subsidies, medical subsidies, Iunch, feave and entertainment
allowances which the respondent. would have earned if he had
remained in Lhe employment of the appellant til1 he had reached
retirement. age of 55 years. That was 9 years from date of
judgment. The appellant has appealed against E.hat judgment.. The
memorandum of appeal contains four grounds.
These grounds are formulated in the following manner.
L. The learned trial ,Judge erred in law and on the facts
in holding that dismissal by lhe appellant of - -
respondent was wrongful the-
.

2. The learned trial judge erred in faw and on the fact

2
 in holding that the appetlant,s employment contract
with t.he respondent coul-d not be terminated until tlte
respondent. att.ained Lhe age of 55 years or unt.il the
expiration of 3O years of service by the respondent
whichever was the earlier.

3 FURTHER OR AIJTERNATMLY if the respondent,s dismissal

by the appellanEs was wrongful which is denied, the
learned judge erred in law and on the facts in not
awarding the respondent. whaE he would have received in
lieu of notice but instead awarding Ehe respondent as
special damages his salary and other alf ot/rances up Lo
the t ime when he vrould attain the age of 55 being a
period of nine years and furLher in award.ing incErest:
thereon at 452 per annum f rorn judgrnenL t.ill payment in
full.
4. The fearned trial judge erred in awarding the respondent
o his pension dues when in fact Lhey had noC yet actrued.
Mr. Masembe-Kanyerezi, Counsel for the appeflanL, in arguing tlre
f i-rst ground submitted in summary t.hat the respondent as a bra.clr
Manager of the appellant. Bank performed his duties so negl-igently
that he caused loss to the apperlant. Learned counsel cont.ended
t.hat the E.ria1 Judge did not consid.er Ehe matter adequat.ely and
consequenLly the ]earned ,Judge erred in upholding the
respondent.'s claim for wrongful dismissal . Counsef cited Chitt.v
n Con 26Ch Vol . 2 page 828 para. 3978.
Mr. BiE.angaro for the respondent. in response referred us to
clause 13 of Ehe cont.racE of employment (exh D1) dated 5t.h .lune
).959 by which the apapellant appoint.ed the respondent.. Leat:ned
counsel cont.ended in effect. t.haE the trial ,Judge was justified
o in holding that. there was wrongful dismissaf because there was
no evidence Eo show Lhat. the respondent. was guilty of
unsat.isfactory conduct. Learned Counsel, support.ed the t.rra1
,Judge, s view thaE. unsat.isfactory conduct could only be deL.ermined
aft.er fair hearj-ng. In Counsef, s view, t.he respondent. should
have been heard before he was dismissed. Mr. Bitangaro appears
t.o argue t.haE. Clause 13 was not enough authoriLy for appellant
Eo dismiss the respondent. j-n a summary manner.
The first. ground of appeal arises from the resolut.ion by the
rearned triar Judge of the first and second issues framed for his
decision. I think that the order in which the two issues were
arranged and answered was bad. 'I'he issues as framed in the trial
3
 CourE staLed -
1. Whether or not the dismissal of the plaintiff was
wrongful.
2. "Whether the plaintiff was negligent in t.he executiorl
of his duties', .

The learned t.ria1 judge held that. t.he dismissal was wrongful
because E.he respondent was not given a hearing. The judge
further held that. there was not. enough evidence to prove t.hat the
respondent. was neglj-gent. In my opinion. issue two should have
been answered firsE as a mat.ter of logic.
There are two poinE.s of contention to be determined under
the first ground of appeal. Since Mr. Bitangaro quite correctly
admit.s that. Clause 13 of tile contract of emptoyment (exh. D1)
a was E.he governing clause at the time when the respondent. was
dismissed, the first issue is t.herefore whet.her Ehe provisions
of CIause 13 conferred authority upon the appellant t.o suntmari)y
dismiss the respondenL. The second issue is whether the di.srnissar
was jusLified or not., i.e-, was t.he respondent incompeLent or
negl igent .
As argued by Mr. Masembe Kanyerezi and with alI due respecL
to the trial Judge, the learned .Iudge did not evaluate all the
evidence relating t.o thj.s issue properfy or adequat.ely. However,
as a first appellate CourE, we are entitled to re-evaluate the
evidence appearing on the record, giving allowance to the facL
that., unlike t.he trial lludge, we have not- had Lhe betlef ir- of
seeing and hearing the wj,tnesses.
o AE. the t.rial each side called one wiEness. The respondent
test.if ied as P.W.1 and L. Muganda (D.W. 1) test j.f ied for
appellant.. Each side Eendered many documentary exhibit.s as
evidence. On the basis of oral evidence and Ehe exhibits, tre car)
make our own inference and draw our own conclusions.
Cfause 13 of exh. D1 reads -
"rf, a f t.er you have served your probationary
period , your appointment is conf .irmed ib will
be tha t of a monthly servant., provided that.
shoufd v ou at an\/ time either dur fnq our p roba t I orlarv
period or afterwar ds, commit any breach of
the co ndiLions h erern conta ianed or be gui l ty
of uns atisfactory conducL i ns ide or outside the

4
 Bank, the B ank reserve Ehe riqht t.o t-stntss
vou withou t. noLi-ce " (Underlining added )
.

IE is common ground thaL at Llle time of distnissal Lhe

respondent was no longer on probation- He was on pensionable
employment when he was dismissed on 31st May 1990.
The above clause does not use the expression "surnmary
dismissal". It cont.ains the words ', to dismiss without not.ice,,.
In my opinion t.he vrords ',the Bank reserves Lhe right t.o disrniss
you without not.ice,, mean that the Appellant. Bank had reserved the
authoriEy t.o dismiss t.he respondent sumrnarily if he cornmitted any
breach of the conditions contained in t.he service co.Lract (exh.
D1) or if the respondent was guilt.y .of ',unsat.isf act.ory conducL
inside or outside the Bank,,. UnIike the triat judge, I
o understand dismissal wiLhout noEice or summary dismissal to rnean
t.hat the respondent could be dismissed wj-thout being heard if
he breached the contracE condiEions or if he was found guilt.y of
unsatisfactory conduct,. See El ute vs. Uqanda Air I i- nes
CorDorat i on (1984 H.C.B. 39. I therefore do not., wiLh respecL,
)

accept the conclusions of Ehe learned triaJ- Judge, nor do I

accepL t.he contentions of Mr. Bj-tangaro,
learned Counsel for the respondent, or indeed t.he respoitdent
himself, Ehat the apapellant could not dismiss t.he respondent
before hearing the respondent. Apart from Clause 13 of exh.D1 ,
furt.her authorit.y for this, if required, is Chit.t yon Contracts
(supra page 828 para 3978. Under the heading SUMMARY DISM ] SSAL
)

FOR INCOMPETENCE, t.he Editors of the book st.ate Ehe law to be

o as follows -
"If an e mployee was employed on the basi s t.hat
he posse ssed a part.icular ski11, it has been
held tha t he may be dismissed surnmarily
withouL notice if he fails to display a reasonable
degree o f compent.ence in that skill [Har mel:...v
Corne I i-a NS ( 18s8 ) C.B . (N.s.) 2361 . rr has also
been heI d that any employee (whether he posseses a
part i cul ar skill or not) is liable to be dismissed
summari f y if he performs his work so ne igent Iy
that his emp I oyer's businees is 1ikely t so I be serious 1y
in j ured Ca11
: Brouncker (1 831) 4C & p. 518n.
Furt.her at page 824 (pa ra 3973) , t-he same bool< staEes, under
Lhe heading MI SCOND UCT , that

5
 "Where t.he employee is guilty of sufficient
misconduct in his capacit.y as an employee,
he may be dismissed summarily withouL notice
and before the expiration of a fixed period
of employment', .

The Oxford DicEionary, 1994 Ed. defines misconduct at page

515 to mean "bad, improper or unprofessional behaviour',.
I am saE.isf j-ed that because of t.he provisions of Clause 13
the respondenE was liab1e t.o summary dismissal if the appellant
established unsatisfactory conduct. which, to me, is the sarne
t.hing as mj"sconduct. I Ehink, with respect., Lhat the learned
trial .ludge erred when he held that the appelIanL had noL aclduced
evidence to prove unsatisfact.ory conduct. I wiII refer to Koniq
VS. l( Naran C B E.A ??? {L958}.-E-*;--233-
o (infra) to illustrate unsatisfacEory conducL or misconduct laLer
in t.his judgment. Exh. D3, DG, D7 and D1O to be considered
hereinafter was such evidence whose effect the triar .Iudge failed
t.o appreciat.e.
The second issue, as posed earlier, is whet.her tlte
respondent u/as incompeEent and or neglligent or guitty of
unsat.ifactory conduct.? In my opinion the answer is yes. The
contenEs of exh. D3, DG, D9 and D1O speak for t.hemselves. Exh.
D3 daEed 16t.h January 1989 was written to the respondent by the
Managing Dj-recEor of the appellant. It complained of breach by
Ehe respondent of discretionary limits and non-reporting of
excesses on numerous occasions.
It reads as fol lows : -
o
16th January 1989.
.,
PR I VA'IE & CON F l DEN'I'1AL
Mr. c. Mubiru,
Manage r,
Embassy House Branch,
c,/o Ourselv es.

Dear Mr. Mubiru,

I have reviewed t.he papers which were waiting for
me, and which contained the information neceJsitating
your proceeding on leave with effect. from Zt/t2/AS-.
A decision taken in my absence, but supported.
6
 As you are fu11y aware, Lhere have been numer ous
occas ions of your breach oI discreL ionar y IirniLs,
and failure t o reporE excesses Eo Head Of f ice. 'flre
actions by you were in breach of your autltority as
Manager and whifsb there may be only cerLairl
mit.igating circumstances, you have caused considerable
extra work and the possibiJ-it.y of foss.
This letter is bherefore a warning and wifl be placed
on your file.
On your reLurn f rorn leave, you should t.ake every
opportunity Lo put the account.s which have been
critcised in order, and ot.her aspects of branch

routine. May I suggest you re-read previ.ous

inspection reports.
o Yours s i nce re 1y,

tr. M. BOWMAN
MANAGING DIREC'IOR'.

Exh D5 dated 17th ApriI, 1989, was again writEen by the same
Managing Director in respect of exceeding discret.ionary limit.s
on the part. of the respondent..
The respondent had exceeded his discretionary Iimits of Shs. 1nr/=
apparaently by Shs. 5.2n/=. Exh. D6 reads as follows -
o 17Lh April, 198 9

"Mr. c. Mubiru,
Manage r ,
Embassy House Branch
Dear Mr - Mubiru,
BUSI'IENY I COMMER CIAL AGEN C l ES

Your AADV15 daaed 17/4/89 l)as been brought LO rny

aLtenLion and it shows Lhat you h ave a t) ecietl
vou r discre l- ionarv I imlts
I find it difficult. to comprehend that. no request
 by personal visil- or telephone was nrade by you, tcr
t.his office, before you advanced the surn of G-zn/=
The limit, which expired on 2G/2/99 was issued to
I(AL,S and has no bearing of your decision, unilateraJ Ly,
to restaLe it.
May I again remind you of your limits namefy 1m/-
secured and 4OO, OOO/= unsecured, and requests itr
excess of these figures must be referred to this
ottace.
Please acknowledge receipt of this let.Ler of the
enclosed copy .

Yours sincerely,
o
E.N BOWMAN
MAN NG D1RE

On 28th April 1989, the same Managing Director wrote to the

respondent. exh. D7 wherein the Managing Director expressed
concern abouE. advancg; He required t.he respondent to writ.e an
explanaE.ion wit.hin t.wo weeks. Exh. D7 reads as folfows _

2BLh Apri.l. 1989.

,'PERSONAL

o Mr. c. Mubi ru ,
Manager,
Embassy llouse Branclt,
KAMPAI.,A.

Dear Mr. Mubiru,

I have now received LIte Inspector, s Repor t on yorl r
branch and there are elements in it: whicl.r give cause
for concern.
Whislt. t.he branch is to be congratu1ated on some
improvement in its oper:ations, the control of advances
is severely criticised. This latter, I find, rnost.
disappoint.ing particularly as the events of June/
September last year. (rel.a[ing to Ehe UDC Group) ,

{l
 subsequent action t.aken by this office includitrg nry
letLer to you of 16/l/89 and nrore recently rny leLter
of 17/4/89 re Bushenyi Commercial Aqencies.

would you please as a rnat ter of urqency follow up all

t. he point s raised by the ecEor under t. he Advances/
SecuriEies SecEion and have a written report on the
action taken by you, submitted to me, by Friday 12th
May 1989.
Yours s incere 1y,

E. N. BOWMAN
MANAG ING DIRECTOR".

In response Eo this lett.er, t.he respondent. wrote his report

o belatedly dat.ed 15t.h May 1989 (exh. D9) . The 1ast. paragrapl.r of
exh. D9 shows that the respondent. was sent. on forced leave as a
punj.shment.. The same reporL at. page 2 suggests that. Lhe advances
Port Folio was in chaos. The respondent needed t.ime to organize
the same. In my opinion, Exhs. D3, DG, D7 and D9 are evidence of
incompetence and unsatisfacE.ory conduct on the parL of the
respondent. The ,Judge ignored or trivialised these vital piece
of evidence. Because of gross incompet.ence and negligence, Lhe
Board of Directors dismissed the respondent, and tlte a Ietter of
o the Managing Direct.or dated 3tst May 1990 (exh.D1O) ,

communicaLing the DirectorJ, decision to the respondent. reads as

follows -

" Personal 31s t May 199O

Mr. G. Mubiru,
c/o o ursefves
Dear Mr. Mubiru,
The Board have carefully considered the lending
porEfolio at Embassy House Branch whilst. you were
Manager t.here lasL year.
 The position of over 40 accounts totalling some
U. sh. 22m/= is of considerable concern and it i.s Lhe
view of t.he Board that. t-here is strong doubt as to
recover. The Board considers these lendings Lo be
negligent and shows gross incompeEence on you part.
The Board Eherefore approves yor-tr dismissal from the
Bank, with immediate effect..
Yours sisncerely,

E. N. BOWMAN
MANN GING DIRECTOR'

It is abundantly clear t.hat a number of warning fetters were

O sent. to the respondenE. bet.ween ,January 1989 and May 19g9. T'lte
respondenL was aware or should have been aware of tlte cor)l_enLs
of exh. P4 cal1ed Barclays Overseas Territ ories Manual , l9}.t,
Edit.ion. A Chapter Lherein sets out ConLrol procedures. Sect.iorr
5 regulates excess over limits and requires Managers t.o observe
limit.s. Because of excesses the appellant advised the respondent
Eo mend his ways and to desis! from excess lending. He was
inst.ruct.ed, or ordered, to fo11ow t.he laid down practice. The
regulat.ions and t.heir observance was in effect ernphasised by the
Managing Director in his leLter to respondent dated 14th ,Ianuary
1988 (exh. D2). He was advised Lo make reports to head office
where the respondenE had granted loans in excess of his
o discret.ionary limiE.s. He did not heed or does not. appear to have
heeded any of these warnings. He disobayed his superiors. Itis
report of 15th May 1989 (exh. D9) which was demanded by Lhe
Managing DirecEor (exh. D7) (supra) clearly shows that Iending
in respect. of not less than 28 accounts had caused problenrs in
recovering Ehe money lenL ouL. These Iendings (in effect accepted
by Ehe respondent.) prove persist.ent contravention of
headquarLer's inst.ructions and Barclays rules limit.ing the
respondenE.'s excercise of tending discretion. That is why by
exh. D1O t.he respondent was described as being grossly
incompetent. and negligent. Being grossly incompetent and
negligent is borne out by evidence and even amounts to
10
 unsatisfactory conduct. Those, in rny understanding, are the
reasons for E.he dismissal of the appelIanL.
fn etu. . . . v U anda Ai r' s Cor ora 19U4
H.C.B. 39. Manyindo, J., as he then was, held correctly in rny
viewlthat summary dismissal,would be justified where an employee
commits a serious breach of duty amount.ing, in effect, to a
repudiation by the employee of his obligaEions under the contract
of employment such as disobedience of lawful orders, misconduct,
drunkeness incompeE.ence and neql-iqence. In summary
dismissaf the employer gives no notice.
I am a little puzzled by the conclusions of the learned
trial Judge when he held that -
',Being found guilty and urrsaLisfactory conduct
o presupposes that there is a t.riaI where t.he concerned
party is offered an opport.unit.y to defend himself ,,.
It is clear t.o me that Ehe respondent. was either incompet.ent or
negligenc as stat.ed by t.he Managing Director or deliberately
frouted and disobeyed conEror procedures and the inst.ructions
from the headquarters. That could noE be E.ofarated by the head
office. The conduct of the respondenE. here is in effect the same
as t.hat of the appellant in the E.A. Court. of Appeal decision in
K onl . . VS . . . Kani ee Narani ee Ltd. (1968 )E .A 233 and of Lhe
Plai.ntiffs in Oluocir c Kan i a vs Nyar) darwa (1956)E.A
457
The facLs in -t CAS were as follow -
The appellalnt was employed by Ehe respondent. as engineer
o and manager of a sisal fibre spinning factory by a wriL.Len
contract. for three years from March, 1965, at. a monthly salary
of shs. 5,OOO/= payable on the last day of each month. IIe was
entitled under the contract t.o cert.ain locar reave to 'rbe tar(e.
at such time or times as may be convenient. to,' the respondent..
On .Iune 28, 1966, as a result of an incidenL the previous day,
there was a sEormy interview between t.he appellant and the
managing direct.or of t.he respondent during which the managirrg
director invited the appellant to resign and, when t.he appeIJ-ant
refused, Iost. his lemper and abused Ehe appell-ant. The appellant
then wrote to t.he respondent, pointing out t.hat his 1oca1 leave

11
 a

was overdue and sEating that he would take iL from June 29 ancl
would resume work on July 13. On JuIy 4, the responder)t replied
saying t.hat it was not convenient Lo it for t.he appellant to take
his local leave at that time and ordered him t.o return to work
fort.hwith. There then followed correspondence between advocates
for the parEies and on ,JuIy 20 t.he respondent.,s advocates wrote
saying t.hat t.he appellanE.'s conLract was ',hereby terminated
summarily'r. The appellant. sued for damages for wrongful
dismissal . The respondent all-eged t.hat he had been summarily
dismissed on .IuIy 20 for disobedience t.o orders. The High Court
dismissed the claim, holding t.hat. the appellant. was in breach of
his cont.ract as from ,lune 28, On appeal Lhe appellant argued
that the dismissal was wrongful . The East African Court of
o Appeal held Lhat -
(i) a masLer is enLit.Ied to dismiss his servant summarily
for wiIful disobedience of his master,s fawful and
reasonable orders, which it is his dut.y to obey;
(ii) the order to reEurn to work of ..Tuly 4 was clearly a
lawful and reasonable order;
Larr, ,J.A delivered t.he Ieading judgment. in the CourL of
Appeal He alluded to summary dismissal and conduct justifying
summary dismissal at page 235 in these words -
,'The main grounds of appeal argued by counseJ, for
Ehe
appellant were thaE t}:e learned trial judge erred irr
holding that the appellant,s conduct justified his
summary dismissal. As regard Lo tlte first point, the
a law seems clear- A master is entitled Lo disrniss his
servanE summarily for wilful disobedience of his
master,s Iawful and reasonable orders, which it is his
duty to obey. In this case,
the appellant was onfy ent.itfed to take focaf leave
,,at. such time or Eimes as may be convenient
to
companyi,. He took loca1 leave on June 28t.h withouL
ascertaining if it was convenient t.o the company. On
,JuIy 4 Mr. Dwarkadas wrote to the appellanL poinLing
out t.hat it. was not convenient to the Company for the
appellant to take his leave at that. time and ordering

1?.
 him t.o return E.o work forE.hwith. That. was clearly a
lawful and reaonable order, and by disobeying iL, the
appellant. rendered himself liable t.o summary
dismissal',.
In the same Appeal, Daffus, .I .A. in his concurring judgment.
at page 237 stated -
'rThere can be no doubt. t.hat t.he appellant refused to
obey his insLrucE.ions to ret.urn to work and indeed
refused in any evenL to return to work unl-ess and until
his ,fune salary was paid. This would amount t.o sucll
a complete denial of his contract of service as would
clearly justify his instant dismissal',.
Clearly in Ehis case (Koniq,s) t.he appe11ant.,s misconduct
o was one occasion of disobeying instruct.ions.
In the case of Olocho And Kani a . . .vs Nyanda rua (supra ) ,

the facts were these -

The two plaint.if f s were employees of the defendant alrcl
in addit.ion they represented t.he local branch of the
Kenya L,ocal Government Workers Union on Che joint staff
commiEtee of t.he defendant. At a meet.ing between the
plaint.iffs and t.he officers of the defendant, pay
increases for the subordinat.e staff were agreed ancl it.
was decided t.hat Lhe st.aff should be informed of Lhis
by a circular t.o be enclosed in the pay packet for
December of every member of the staff. The circulars
were sent to the revenue office for incfusion it.r the
a pay packets. The two plaintiffs were in charge of that.
office, as a revenue officer and a chief clerk
respectively. They disliked the t.hird paragraph which
st.ated t.hat t.he position had been put t-o the union al.ld
accepted by it.. Both the palintiffs then wiLhheld the
circulars from the pay packet.s. When the treasuer of
the council became aware of the situation he told the
plaintiffs Ehat t.he circulars must. be put in Ehe pay
packets and later the pfaintiffs were warned tltat if
Ehey persisted in their refusal it might have very
serious consequences. The plaint.iffs were summarily

13
 dismissed for disobedience whereupon they sued t lre
defendant for wrongful dismissal . lhe trial judge he 1d

(i) the refusal to have t.he circulars included in the

pay packets, notwithstanding that t.he plaintiffs wer-e
warned Ehat. this refusal if persisted it might have
very serious consequences, const.j-tuted wiIful refusal
to obey a lawful order on the part of tl-re second
plaintiff and at least wilfuI disobedience and wi1fu1
j-nt.erference on t.he part. of E.he first plaintiff Lo
prevent. the despat.ch of t.he circulars;
(ii) the dismissaL were not wrongf ul,,.
The t.rial judge dismissed the suits.
o I think t.hat exh. D3, D4 and D6 were serious official
warnings to the respondent to t.he effect that he was negligent
and t.hat his performance was unsat-isfactory and also that he hacl
disobeyed instruct.ions. The respondent was sent on forced leave
at t.he end of L988 because of his refusal to follow inst.rucLions
from headquarters and because of unsatisfactory management. of the
lending portfolio. Upon his ret.urn he had to defend hirnself by
writing exh.D7 wherein he admitt.ed some unsat. i s f act.ory management
as can be gathered from E.he boEt.om of page 1 E.o the top of page
2 of exh. D7. I am surprised t.hat although E.he learned trial
judge found t.haE the respondent had probrems in the perforrnance
of his job, the same judge held that rhe appellant did noL
produce enough evidence to prove unsatisfactory conduct. on the
O part of the respondent.
I have already shown and held thaL the appellant. by 1aw was
empowered Eo summarily dismiss t.he respondenE for incompeEence
and or negligence. I Ehink that in this case incompet.ence or
negligence j-s t.he same as unsatisfactory conduct. The learned
EriaI Judge appears to have unduly placed considerabLe refiance
on the case of ,.Iabi vs.... Mbale Mu nicipal Couns i f (197s)
H.C.B. 191. I t.hink LhaL the facts in Jabi,s case are
dis t inguj- shabLe from t.he case before us. In t.hat case, Jabi had
been employed by Mbale Municipal Council (a Local Authority) as
an Accountancy Assistant crade I. He was on permanent and

l4
 pensionable Eerms. On 28th Oct. 1971 there was a beauLy contest
at Mt. Elgon Hot.el, in MbaLe Town. ,Iabi, the plaintiff, was an
invited guesE. During the contest t.he plaintiff was arresLed
because he quarrelled with a Government official . He was
deEained unt.il 14th December 1971 when he was released. Upon
release he resumed duty and was given leave. When he resumed
duty he was prosecuEed on some hat.ched up offences. He was
acquitced in April L9?3. Thereafter he soughf to regain his job.
On 3Oth May 1973 The Town Cl-erk of Mbale Munic j-pat Council
dismissed t.he plainLiff (Mr. Jabi) from his empfoymenr in the
Council on grounds that the plaint.if f on many occasions insulEed
his superiors inc.Luding Senior covernment. Officers in public
which was a discredi! t.o the Council and that. he often came to
o office when drunk and Ehis caused disturbance in the office and
therefore, his services were t.erminated wit.h effect from 1st July
1973. The regulations of the Council (R.74) required t.hat Lhe
plaint.if f would not. be subjecEed to disciplinary act.ion on
account of Ehe matt.ers for which he was acquitted by CourE.,
Furt.her the Town Cferk dismissed the plaint.iff without following
the procedures laid down by Mbale Municipal Council. The Town
Clerk in his testj-mony in Court stated that the main reason for
E.he t.ermination of the plaintiff,s services was connected with
his arrest in October )-giL. This was cJ-ear1y outside the
official duLies of the plaintiff.
Ssekandi, Ag.J. as he t.hen was, held in effect. that
dismissal of the plaintiffI was in violat.ion of Ehe Council
o Regulat.ions (74) and procedures for dismissal . The learned Judge
he1d, inter aIia, that evidence in the instant case sufficient.ly
bore ouL a case of wrongful dismissal. Although the Council
mighE. have been embarrassed by the incident whj-ch led to the
arrest. and detent.ion of Lhe plaintiff and it might have been that
thaE incident amount.ed t.o a breach of an implied term of the
Cont.ract of Service bet.ween the plaintiff and the defendanr,
i.e., that. the plaintiff should be of good conduct out.side office
hours so as to preserve t.he good name of t.he Council, it could
not be said that breach of thaL implied term amount.ed to a
fundamental breach of the contract of service wiE.h the council.

15
 'l

The incidenE had nothing to do with Lhe plaintiff's work and

moreover, his work was appreciated by Ehe CounciI" which had
promoted him in the same year (1971).
Clearly the case of Jabi (supra and Ehat of Lhe present
)

respondenE are disEinguishable. The respondent occupied a special

position of a Manager wiEh great respons ibi I i t.es about management
of funds in a bank. On many occasions he viofated Bank
regulaEions, practices and instructions from his superiors in the
grant of loans t.o t.he extent that. t.he head office judged him
imcompetent and negligent. The appellant had no opt.ion buL to
dismiss t.he respondenL in the manner t.hey did. The law is ir.r
favour of Lhe action t.aken
by the appellant. Bank. In concfusion l think t.hat ground one of
o this appeal must succeed.
The conclusions which I have now reached disposes of this
appeal . I find no need to consider Lhe resL of Lhe grounds of
appeal . However, according to Lameck Maganda, (D.W.1) called by
appellant, the respondent. was enEit.led to deferred pension even
if he had been dismissed. Even if the appellant has succeeded
in this appeal, the respondent. is entitled to aL Ieast his
pension cont.ributions. This is the subject. of the fourth ground
of appeal which my learned brother has dealt wiLh.
I must. say I was asEonished by the approach adopted by the
learned Lrial ,fudge when he considered remedies. I{e should have
quantified the awards. His omission to quant.ify the relief5
delayed unreasonably t.he disposal- of the case in t.he court below.
o Subject. to payment of Ehe deferred pension cont.ributions I
would al1ow Lhis appeal, set aside Lhe judgment of the trial
courE and I would grant. three quarters cosL.s to the appellant
bot.h here and below.
J. As Kanveihamba, .I Mukasa-Kikonyogo, J. S. C. afso
asree, k iq.fu
Delivered at Mengo t Qft, o^" ", frA"J 1ee1 .

15
 w.N 6 ekoo k
,Justi e of he Supreme Court.

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 -l

.I'IIE
RIiPT]RI,IC OF IIGANDA

IN TIIE STIPRE]I,tE COT]R'I'oII IIGANDA

A'I'I}IENGO

ICORAM TSEKOOKO J .S. C., KANYEIIIAMBA J. S. C., AND KIKONYOCO.'. S. C.I

ClVll, APPEAI- NO; I OF 1998

RE'I'WEEN

I}AR(]I,AYS BANK ()I.' tI(;ANI)A. API'I]I,I,A N'I'

O ANI)

GODFRI]Y MT'BIRTI RESPONT)itN',t'

(Appeal from the Judgernent and Decree ofthe High Court ofUganda at Karnpala
(Okalebo, J. and reviewed by Tinyinondi, J. dated 5''' May.1992 in lJigh Courr Civil Suit
No. 1004 ol 1990)

.ludsment of l\Iukasa-Kik onvoso,l.S.C.

I have had the advantage ofreading the draft judgnrents ofboth Kanyeiharnba,.t.S.C.,
a and Tsekooko, J.S.C., rvith which I agree. I do not have much lo add bul I have only a
ferv comments and obscrvations lo make.

'l'he lacts relating to this appcal arc fully set out

by rny learncd brothcrs in thcir
judgemcnts referred lo abovc. I have no intention olrepcattng lhcrn.

'fhc grounds of thc appcal arc as litllows: -

'fhat thc learned trialjudge crred in larv and facts in holding that thc disrnissal ol-
lhe Rcspondent by the Appellant was rvrongful.

2 T'hat the lcarned trial judge erred in law and lhct in holding that the appellant's
employment conlracl with the Respondent could not be terrrinatcd until the

I
 Respondcnt had attained the age of55years or until the cxpiration of30years
service by the Respondent rvhichever oame earlier

3 Further or altematively ifthe Respondent's disrnissal by lhe appcllant was

wronglul, which is denied, the learned trialjudge erred in law and on facts in not
awarding the Respondent what he rvould havc receivcd in licu ofnotice but
instead ofawarding the respondent special damages, his salary and othcr
allorvanccs up to thc time he would have attained the age ol55years being a
period ol9 years and lurther in awarding hirn interest thereon at the rate ol'45o,/o
p.a. from the date ofjudgement till payrnent in full.

4 That the learned trial judge erred in awarding the Respondent his pension dues
when in facl they had not accrued.

Mr. Masembe Kanyereezi, learned counsel, who rcpresented the Appellant rnadc
submissions on the four grounds and asked the court to allow the appeal, set aside the

o award and give thc Appellant costs ofthe appeal in this court and bclorv.

Mr. Bitangaro, Iearned counsel lbr the Respondent, opposcd the appeal in its entirety. lle
asked this court to reject all the lbur grounds on which the appellant based the appeal. Ile
inviled the cou( to uphold thcjudgement ofthc learned trialjudgc and praycd for the
dismissal of the appeal with costs in this court and the High Court.

With regard to the first ground ofappeal whethcr the lcarncd trialjudge rvrongly hcld that
the dismissal ofthe Respondent was wrongful it appears the learned trialjudge took the
misconduct ofthe Respondent lightly. IIe did not think it was so scrious as tojustify a
dismissal for he described it as normal shortcoming rvhtch did nol warrant a summary
dismissal. I{e apparenlly found the Respondent's explanation lbr the breaches ofexcess
lending reasonable and satislactory.

It is conceded as argued by Mr Bitangaro and acccpted by the learned trialjudge that

betrveen November 1972 and July 1989 the llespondent rvas rcpeatedly and progressivcly
promoted to high levels ofmanagemcnt by the Appellant. It is also true that he rvas
o congratulated in the managing director's letter dated 28th April, 1989, Exhibit 7 for sorne
improvement in thc operations of his branch. On the evidencc on rccord lhere rvas
sufllcient misconduct on the part of the Respondent to justify his summary dismissal. In
the first place he willlully disobeyed the Appellant's lawful and rcasorable orders or
instructions. ln the second place his conduct as described in the managing director's
letters produced as Exhibits D3, D6, D7, D9 and Dl0 and other documentary evidence
amounted to breach of the conditions ol his cmployrnent contract with the appellant and a
repudiation ol his duties.

A master is lree to dismiss his servant summarily lbr rvillful disobcdicnce of tarvful and
reasonable orders or instructions. See KONIC VS. KANJEE NAVANJIjE LTD 1968
8,A.233 AND BTJGONDO VS. IIGANDA COMMERCIAI- BANK I983 IICB 46.

2
 At common law to justify su,nmary dismissal that is dismissal rvithout notice and
immediately it had to be shown that there was serious brcach of duty. ln effect it ha<l to
be shown that such a breach amounted to repudiation by a servant of his obligations
under the contract olemployment such as incompetence, neglect, or disobedicnce SEli
ELETU VS UGANDA AIRLINES CORPORATION (t9S4) IICB 40.

In hisjudgment the leamcd trialjudge stated the correct position ofthc larv relating to
summary dismissal and even crted circumstances lhat rvarranted such action bul lor
reasons hard to find he chosc not to apply it to the facts olthis case. He apparently
disregarded the respondent's willlul disobedience ofthe Appellant's larvlul ordcri not to
exceed the lending discretionary limits despite very strong evidcnce adduced before hirn
by the appellant.

With respect, hc surprisingly, camc to lhe conclusion that the Appellant had failed to
prove that the Respondent rvas guilly of unsalislactory conduct or thal he was in breach
of any condilion of the conlracl olemployrncnt. Relying on the case of MUIltIRA VS.

o NATIONAL INSTIRANCE CORPORATT()N t985 IICB I t0 thc lcamed lrial judgc

further held that the summary dismissal of lhc Respondent by thc Appcllant contriveircd
the rules ol nalural j ustice narnely audi alteram partem, As far as he rvas conccrnctl the
Respondent should have been givcn opportunity to be heard antl thsn scrvcd rvith noticc.
'l'o the learned trial judge the disrnissal rvas, therehrre, in
bad laith.

With respect, on proper evaluation ofthe cvidence olrnisconduct ofthe Respondent

adduced before him by the Appellant parricularly Exhibits D.3, D.6, D7, D.9. D. l0 and
correct interpretation of clauss I3 ofthe contraot the aforesaid holdings ofthe learned
trial j udge were enoneous. clause I 3 of the conditions of the contract ol service reads as
lollorvs;

"lfafler you have served your probalionary period, your appointment is

confirmed it tvill be that ofa monthly servant, providcd that should you at any
time either during your probationary period or afterwarits, conrmit any breach of
the condilions herein contained or be gurlty of unsatisfactory con<juct inside or

o outside the Bank, the Bank rescrves the right kr disrniss you rvithout nolice".

Had he propcrly evaluated the evidcnce before hirn he would have come to the
conclusion that the summary dismissal was righttul. Hence, there was no conlraventron of'
the rulcs of natural justice[aurli alterm Oarter)\ did nof arisc.

In the correspondence lrom Mr. Borvman, thc managing director ofthe Appellant to the
respondent already refened to above, Exhibits, D3, D6, D7, D9, and Dl0, the Appellanr
is complaining ofthe Respondent's repeated breach of his discretion limits and ihe failure
10 report the excesses on many occasions. As the letters written by Mr. Bowman have
been reproduced in my learncd brothers' j udgments there is no ncid to citc them again
here. with such evidence I am unable to understan<l why the learnecl trialju<1ge <JiJ not
find unsalislactory conduct, negligencc and incompclence on the part ofthe l{espondent.
( see Exhibit l0).

J
 To the Appellant a banking institution lhe lending by the Respondent contrary to its strict
instructions amounled to gross negligence on lhc part on the Respondent and to a
repudiation of his obligations undcr thc contract of employment. 'Ihe Rcspondent
contravened Clause l3 ol'the conditions of the conlract. 'l'he present case must be
distinguished frorn JOIIN ELETU VS. I.,GANDA AIRLINES (supra) rvhcrc therc rvas
no evidence of financial loss on the part ol the crnployee unlike in the instant case. Thc
summary dismissal of the Respondent by the Appellant in thc present case was, in the
circumstances justified. The first ground of thc appeal must, hence, succeed.

As for the second ground ofappeal whether the learned trial judge rwongly held that thc
Respondent's contract ol service could not be terminated without notice until the
Respondent had attained 55years or unlil thc expiration of 30 ycars of servicc hy lhc
Respondent whichever was earlier, the answer to this question rvould depcnd on the tenns
of the contract of employment betrveen the partics and the circumstances thal lcd to the
termination.Under Clause l3 olthe conditions of service the Appellant reserved the right
to terminate the respondent's scrvices at any lime either during probation or aftcnvards,
a if he committcd any brcach of the conditions or was lbund guilty of unsatislactory
conduct inside or outside thc bank.

In the inslant case the respondent was found guilty ofunsatisfactory conduct inside the
bank as already secn above. ln my vierv and with respcct to the learned trialjudge, thore
was nothing to stop the Appcllant lrom terminating thc scrvices of the llespondcnt beft)rc
reaching the age of55years or the cxpiration of30 years ofscrvice.

Furlher under the same Clause l3 after his confirmation that is after the probationary
period his appointlnent became one ofa monthly servant. If his dismissal had not been
summary he would have been entitlcd to one month's notice or one month's payment in
lieu ofnotice. That issue as already seen did not arise

As it rvas held by the leamed trial judge in the casc olJABM. MBAI,E Ml)NlCIPAl,
COI.INCIL 1978 IICB l9J an employee on pennancnt terms rright be disrnissetl
summarily in accordance with the terms and conditions of his servicc if sufllcicnt causc is
shown. Such cause would include proofofserious brcach ofdiscipline or grave breach ol'
o a fundamental term of contract. The employer is not bound to continue to employ a
servant at any cost simply because he was on permanent terms and conditions ofservice.
In the present case the summary dismissal rvas rvithin the conditions ofthe Respondent's
contract with Appellanl. l, therefore, do not agree wtth Mr. Bitangaalo's submisston and
the learned trial judge's holding that the Appellant could not terminate the Respondent's
service before attaining the age of 55 years. 1'his ground must also sucoeed.

Regarding the third ground olthe appeal having ruled that thc summary dismissat rvas
rightful the issue ofgiving notice was out ofqucstton. I'he circumstances under rvhich
lhe Respondenl would have been entitled to notice have already been mentioned in this
judgement and clearly stated in lhe submissions of Mr. Masembe Kanyereezi. 'l his
ground, too, has to succeed.

1
a
t
t
a Lastly regarding the fourth ground rclating to lhe award ofpcnsion dues il was Mr.
Masembe Kanyereezi's submission that payment of such dues would be premature. He
argued that whatever category under the pension's rules the Respondent fell in, he could
not claim pension until he became 60 years. ln the present case the Respondent rvill have
to rvait for some 9 to l0years before he could be paid his pcnsion.

In my vierv an employee on termination of his services would be entitled to bc paid dues

eamed for complete periods or delerred under contracl. In the present case the learned
trialjudge rightly noted that DW.l, Maganda's testimony supports payment of deferrcd
pension dues or the Respondenl's contribution to the pension scheme, the summary
dismissal notwithstanding. lt follows, therefore, that the Rcspondent is entitled to
payment olsuch dues. lJe will not have lo wait lor the period of9 years rvhen the
Respondent will altain 60 years, as suggested by the lcarncd counsel for the Appellant.

Before I conclude this judgrnent I wish to associate mysell'rvith the comments rradc by
I'sekooko J.S.C in respect ofthe manner in which the arvards to the Respondent rvere
o made. I agree the learned trial judge should have quantified them to avoid ambiguity in
hisjudgment rvhich necessitated a rcview by'linyinondi J.

In complete agreement with both Kanyeihamba, J .S.C, and Tsckooko, .1.S.C., sub.iect to
payment ofthe Respondent's deferred pension contribution, I would also allorv the
appeal and I would grant the appellant three quartcrs of thc costs herc and in thc courl
below.

Dated at Mengo this. . . . . Day... ... .of the year 1999

l,.E.M. Mukasa-Kikonyogo
Justice ofthe Supreme Court of Uganda.

o
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