Justice for these elderly folk – 21 years later

Well over 20 years ago the Kampala municipal authorities retrenched a group of long-serving workers. But they were not paid their full termination benefits. For more than two decades the group has been fighting to get the money to which they are entitled. They were ultimately awarded a certain sum plus damages by the high court in 2015 but they appealed, saying it was far too little. Now Uganda's Court of Appeal has given its decision on the matter. Would the judges find the pensioners ought to have been better compensated after 21 years of poverty? 

Read the judgment on ULII

Sometimes the courts have a chance to make a really significant difference in the lives of ordinary people. For three judges of Uganda’s Court of Appeal one of those moments came in a recent case concerning 22 elderly people.

 They had worked for the Kampala Capital City Authority over many years but in April 1997 they were retrenched. At the time they were not paid all the benefits to which they were entitled, and they have spent more than 20 years trying to get justice for themselves, their efforts involving several court cases including at least one trip to the Supreme Court.

In 2015, the high court awarded the group a certain sum and damages each. But John Baptist Kabandize and his colleagues were unhappy with the outcome, saying they should have been given more, and they took the matter to the Court of Appeal.

In their recent decision on the matter, the three appeal judges noted that each of the former municipal workers had been awarded USh 143 253 029 as representing the shortfall in their terminal benefits. However, both sides agreed that there had been an error of arithmetic by the high court: the total should have been USh 6 000 000 more per person, and the judges duly increased the award to reflect this correction, resulting in individual awards of USh 149 420 546 each.

But that was not the only dispute. The workers also challenged the rate of interest ordered by the high court, and they claimed that the general damages they were paid were “inordinately low”.

The appeal judges said the general rule was that general damages were to be of such a sum that it would put the person “in the same position as he or she would have been had he or she not sustained the wrong” for which the damages are being awarded.

The terminal benefits of Kabandize and his colleagues were denied them “from 1998 to 2015” when the high court made its decision. “With all due respect, the learned trial judge ought to have attempted to quantify this loss.”

The group were pensioners and all except one were now more than 70 years old. They must have faced great financial difficulties over the years because of their unemployment. They were unable to get the benefits of their long years of service with their former employer. “They were denied money at the time they needed it most.” Had they received this money 20 years ago, they would likely have used it in a way that would have bettered their lives, and it was no fault of their own that things turned out as they did.

“In the meantime, their former employer … withheld the money and used it or somehow benefited from it”, probably by earning interest. The judges quoted Bank of Uganda records to indicate the greatly decreased exchange rate against the US Dollar, and the fact that the Uganda Shilling was worth just a third of what it had been worth in 1998. The group was therefore “today entitled to three times the amount of the money they ought to have been paid in 1998,” the court concluded.

As a result of this analysis, the court found the award of 1,100,000 for each appellant was so low that it amounted to an injustice and the judges increased the award to USh 7 000 000 per person.

The same principle applied to the rate of interest. The group had been awarded 8% interest on their special damages. But if they had been paid their benefits in 1998 and deposited it in a fixed account they could have earned interest at between 10 and 14%. Even government bonds or shares on the stock exchange would have brought them interest at more than 8%.

The court concluded that 8% was so low as to “amount to an injustice” and that it should be increased to 15% from the date they initially filed their case until they are finally paid in full.

There was little footnote to the decision. When the case was initially called for hearing, the court set the dates for written submissions along with other instructions. These included that the file was to be given to another appeal court judge “for mediation”.

That is indeed what happened, but the resulting “consent judgment” and mediation report was never brought to the attention of the court that considered the appeal. As a result, the three judges prepared their judgment completely unaware of the consent reached by the parties. What, therefore, was the status of the “consent judgment”?

The judges pointed out that the rules of the Court of Appeal did not provide for consent judgments on appeal, and that what was termed a “consent judgment” was actually a withdrawal of the appeal by consent. However, an appellant could only withdraw an appeal if this were done before the matter was called for hearing. Otherwise, where the case had already been called, as in this matter, the appellant had first to seek leave of the court to withdraw it.

As this had not been done, the appeal judgment (and not the “consent judgment”) would stand.

Finally, one of the three appeal judges added a separate but concurring decision, taking the question of interest and damages a little further, by reference to additional authorities and stressing that interest was meant to “compensate (a plaintiff) for the period the money he or she is entitled to was withheld.”

Given these authorities, “for there to be genuine restitution, … inflation and devaluation of the value of the money withheld has to be taken into account as well as the fact that (they) would have had the benefit of it and might have earned from it. It follows that an award of 8% per annum would be manifestly low in view of the rates of interest on fixed deposit accounts or treasury bills.”

This judgment was preceded by other decisions, including one by the Supreme Court in which the judges of the country’s highest court spoke strongly against the role played by the Attorney General in the matter: although requested by the Court of Appeal to come to court to explain certain questions, he had failed to do so. He “showed no interest”. As an officer of the court, the Attorney General should not “ignore” a court summons to explain an issue, said the Supreme Court. “I take exception to the failure of the Attorney General to attend court without giving any reason and hope the practice will stop.”

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