Wakilii

Omunyokol Akol Johnson v Attorney General (Civil Appeal 6 of 2012)

Supreme Court · [2015] UGSC 4 · 2015 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second appeal to the Supreme Court from a Court of Appeal decision, originating in a High Court civil suit for unlawful dismissal from public service
Decision
Appeal partly allowed; the omnibus damages award set aside and replaced with separate awards (special damages of Shs 300,000,000, salary in lieu of leave of Shs 19,414,874, and general damages of Shs 150,000,000) with corrected interest; reinstatement refused by the majority.

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Cited — treatment unverified cited in 4 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Supreme Court partly allowed the appeal. It affirmed that the appellant's dismissal from public service was unlawful and void ab initio, but held that reinstatement is discretionary, not automatic, and was properly refused given the long lapse of time. The Employment Act 2006 did not apply, being non-retrospective and confined to contract employment rather than statutory public employment. The trial judge erred in making an omnibus award; special damages must be pleaded, proved and assessed separately from general damages. The Court substituted separate awards of special and general damages and corrected the interest. Exemplary damages were refused as the conduct was not oppressive, arbitrary or unconstitutional. Kisaakye JSC dissented, favouring reinstatement.

Facts

The appellant was recruited into the Public Service as a Foreign Service Officer in 1988 and posted to the Uganda Embassy in Beijing in 1993. In March 1997 he was recalled to Uganda but delayed his return, partly because the Ministry lacked funds to ship his effects. In October 1997 he was arrested and detained for four days by Chinese security agencies, then repatriated and sent on leave. He was interdicted in March 1998 and dismissed by the Public Service Commission in June 1998 without compliance with the disciplinary procedure under the Public Service Regulations and the rules of natural justice. He sued the Attorney General seeking a declaration that the dismissal was unlawful, reinstatement, and damages including for alleged torture and trespass to property in China. The High Court held the dismissal unlawful, refused reinstatement, and awarded an omnibus sum of Shs 180,000,000. The Court of Appeal dismissed his appeal, prompting this further appeal.

Issues

  1. Whether the Court of Appeal erred in failing to declare the appellant's dismissal ultra vires, null and void.
  2. Whether the appellant ought to have been reinstated following his unlawful dismissal from public service, or whether monetary compensation was the appropriate remedy.
  3. Whether the Employment Act 2006 applied to the appellant's statutory public employment.
  4. Whether the Court of Appeal failed in its duty as a first appellate court to re-evaluate the evidence on the appellant's arrest, torture and trespass to property, and whether the respondent was vicariously liable.
  5. Whether the trial court erred in awarding an omnibus sum for special, general and aggravated damages instead of assessing each head separately.
  6. Whether the appellant was entitled to an award of exemplary or punitive damages.
  7. Whether interest on general damages could be awarded from the date of dismissal.

Orders

  • Appeal partially succeeds; part of the Court of Appeal decision set aside.
  • Appellant awarded special damages of Shs 300,000,000 for arrears of salary over 26 years of service.
  • Appellant awarded Shs 19,414,874 as salary in lieu of leave for 26 years.
  • Interest on the special damages awarded at 20% from the date of dismissal until payment in full.
  • Appellant awarded Shs 150,000,000 as general damages, with interest at the court rate from the date of judgment until payment in full.
  • Appellant awarded 50% of the costs in the Supreme Court and the courts below.
  • Trial court orders confirmed: Shs 495,084 withheld salary during interdiction; Shs 1,500,000 transport allowance; US$90 for two nights at Speke Hotel; US$1,372 for an air ticket for Francis Aturia.

Key headnotes

Administrative Law — Natural Justice — Dismissal of Public Officer Void Ab Initio
A dismissal of a public officer effected in contravention of the prescribed statutory disciplinary procedure and the rules of natural justice is void ab initio and of no legal effect.
Employment & Labour — Statutory Public Employment — Reinstatement as a Discretionary Remedy
Reinstatement of an unlawfully dismissed public servant is not automatic but lies in the discretion of the court, to be exercised judiciously having regard to all the circumstances, including the practicability of reinstatement after a long lapse of time.
Employment & Labour — Application of the Employment Act 2006 — Retrospectivity and Statutory Public Employment
The Employment Act 2006 does not operate retrospectively and applies to employees on fixed contracts earning wages, not to statutory public employment governed by the Constitution, the Public Service Act and Public Service Regulations.
Damages & Quantum — Special and General Damages — Separate Assessment and the Omnibus Award Error
Special damages must be specifically pleaded and strictly proved and must be assessed separately from general damages; awarding a single omnibus sum conflating special, general and aggravated damages is to act on a wrong principle.
Damages & Quantum — Exemplary/Punitive Damages — Rookes v Barnard Categories
Exemplary damages are confined to the categories in Rookes v Barnard and are not awarded merely because a dismissal breached natural justice, in the absence of oppressive, arbitrary or unconstitutional conduct or a calculated pursuit of profit.
Civil Procedure — First Appellate Court — Duty to Consider All Grounds and Re-evaluate Evidence
A first appellate court has a duty to consider all grounds of appeal and to re-evaluate the evidence and reach its own conclusions; a failure to address grounds or to explain why they are not considered is a misdirection in law.
Damages & Quantum — Interest — Date from Which Interest Runs
Interest on special damages runs from the date of loss, while interest on general damages runs from the date of judgment, since general damages are not assessed until judgment.

Legislation cited (9)

  • Constitution of Uganda Article 173
  • Constitution of Uganda Article 27(1)(a)
  • Constitution of Uganda Article 38(1)
  • Constitution of Uganda Article 40
  • Employment Act 2006 s.71
  • Employment Act Cap.219
  • Public Service Act
  • Public Service Regulations reg.36
  • Pension Act

Cases cited (24)

  • Federal Civil Service Commission vs Laove (1990) L.R.C 451
  • Ridge v Baldwin (1964) AC 63
  • Matovu & 2 others vs Sseviri & Anor. (1979) HCB 174
  • Bank of Uganda v Betty Tinkamanyire (Civil Appeal No. 12 of 2007)
  • Barclays Bank of Uganda v Godfrey Mubiru (Civil Appeal No. 1 of 1998)
  • R v East Berkshire Health Authority, Ex parte Walsh (1984) 3 All ER 425
  • Kakumu Perez vs Attorney General CCCA No 113 of 2003
  • Patel vs Benbros Motors Tanganyika Ltd. EACA No 5 of 1968
  • Kifamunte Henry v Uganda (1999) 2 EA 127
  • Rookes v Barnard (1964) AC 1131
  • Cassell & Co Ltd v Broome (1972) AC 1027
  • Uganda Revenue Authority v Wanume David Kitamirike (Civil Appeal No. 43 of 2010)
  • Iyamulemye David v Attorney General (Civil Appeal No. 104 of 2010)
  • Kabu Auctioneers & Court Bailiffs v F K Motors Ltd (Civil Appeal No. 19 of 2009)
  • Attorney General v A. K. P. M. Lutaya (Civil Appeal No. 16 of 2007)
  • Uganda Commercial Bank v Yerusa Nabudere (Civil Appeal No. 5 of 2003)
  • Lukyamuzi v Attorney General & Electoral Commission (Constitutional Appeal No. 2 of 2007)
  • Bold v Brough Nicholson and Hall Ltd (1963) 3 All ER 849
  • Mukisa Biscuits Manufacturers Co Ltd v West End Distributors Ltd (No. 2) (1970) EA 475
  • Hotel International Ltd v Administrator of the Estate of the late Robert Kavuma (Civil Appeal No. 37 of 1995)
  • Standard Chartered Bank (U) Ltd v Grand Imperial Hotel (U) Ltd (Civil Appeal No. 13 of 1999)
  • Julius Rwabinumi v Hope Bahimbisomwe (Civil Appeal No. 10 of 2009)
  • F J K Zaabwe v Orient Bank & Others (Civil Appeal No. 4 of 2006)
  • Vines vs National Dock Labour Board (1956) 1 All. ER
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