Uganda Legal Information Institute - Performance of contract https://old.ulii.org/tags/performance-contract en Peatfield Bodgener Architects v The International School of Uganda (CIVIL SUIT NO.153 OF 2013) [2016] UGCOMMC 52 (30 May 2016); https://old.ulii.org/ug/judgment/commercial-court/2016/52 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/contract-law" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Contract Law</a></li><li class="field-item odd"><a href="/tags/breach-contract-0" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Breach of Contract</a></li><li class="field-item even"><a href="/tags/performance-contract" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Performance of contract</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p>THE REPUBLIC OF UGANDA</p> <p><strong>IN THE HIGH COURT OF UGANDA AT KAMPALA</strong></p> <p><strong>(COMMERCIAL DIVISION)</strong></p> <p><strong>CIVIL SUIT NO.153 OF 2013</strong></p> <p><strong>PEATFIELD BODGENER ARCHITECTS ------------------ PLAINTIFF</strong></p> <p><strong>VS</strong></p> <p><strong>THE INTERNATIONAL SCHOOL OF UGANDA ------- DEFENDANT</strong></p> <p> </p> <p><strong>BEFORE LADY JUSTICE FLAVIA SENOGA ANGLIN</strong></p> <p><strong>JUDGMENT</strong></p> <p>The Plaintiff Company filed this suit against the Defendant for breach of contract or unlawful termination of contract of the sum of USD 14,160; general damages, interest and costs of the suit.</p> <p>The brief facts of the case are that on 07th August, 2009, the Plaintiff and the Defendant signed an architectural contract whereby it was agreed that the Plaintiff develops a new centre for science and technology at the Defendant’s campus at Lubowa. The contract commenced on 25th June, 2009, and work was to be completed by the end of 2010.The project cost was US$800,000 and fees for work was payable in stages.</p> <p>The Plaintiff performed the first stage of the contract (outline design stage) and it was approved by the Defendant and duly paid for.Thereafter, Management of the Defendant sought to make some changes in the design work to be incorporated in the next design stage. The Plaintiff contends that several presentations were made before the Board Members of the Defendant and a number of emails and verbal communication were exchanged by the parties and the Plaintiff proceeded to the next stage of the detail design.</p> <p>When the Defendant changed its Board Members, the new members were given a project brief and they submitted feedback on the scheme after consulting internal stakeholders. However, due to budgetary constraints on the part of the Defendant, the project was suspended to enable the Defendant sell its adjacent land to secure funds for the project.</p> <p>Upon this agreement, the Plaintiff proceeded with the detailed design stage and this was communicated to the Defendant by email.</p> <p>In the meantime, the Management of the Defendant School changed and the new head of the school revitalized the project and held a meeting at the Plaintiff’s offices. New changes were made on the Master Plan. The Plaintiff agreed on a discount from the initial fee in the contract; and also sent an email to the Defendant clarifying on the action points of the meeting.</p> <p>After agreeing on a new fees structure and to changes in the project, the Defendant remained silent; and instead engaged a USA based Firm (Fransburg) to advise on the Master Plan outside the Plaintiff’s scope of work. This resulted into a decision to abandon the Plaintiff’s scheme and start a new design with a different scope of work.</p> <p>On 28. 01. 13, the Plaintiff submitted a fee note for work done on the detailed design stage, which the Defendant refused to pay on the ground that the Plaintiff had not obtained the requisite authority before proceeding with the detail design stage. Also that the Plaintiff had in March, 2013, been asked to limit its involvement to the outline stage for budget reasons, but despite the stop order and in total breach of the terms of the contract, the Defendant proceeded to the detail design stage <strong>“at its own risk”,</strong> without communicating to the Defendant in any way. The Defendant then terminated the contract, hence this suit.</p> <p> The Defendant asserts that the Plaintiff is not entitled to any of the reliefs sought, and that the suit ought to be dismissed with costs.</p> <p>At the hearing of the case, each party called its witnesses.</p> <p>As already indicate in this judgment, the evidence shows that the parties entered into a contract whereby the Plaintiff was to provide architectural services—Exhibit P1. The parties agree that the Plaintiff did the first stage that is the outline proposal and was paid. However, it is contended by the Plaintiff’s witnesses that after completion of the outline design stage, the Defendant changed the budget whereupon the parties had verbal and email discussions about the budget issues. The email from Sarah Prinsloo dated 4th March, 2010, expressed fears of working beyond the envisaged budget of US$ 800,000, but the Managing Director and Board Member of the Defendant Scott Groves was informed that the Plaintiff had decided to carryon work to detailed design stage while incorporating suggestions.</p> <p> PW1 emphasized that the detailed design stage was not done for free. That at the meeting held with the Defendant’s officials the Plaintiff made it clear that the presentations entailed the detailed design stage, and the emails of 09th March<strong>, </strong>2010, of Tonny Cockyane made it clear that the project had not been halted. Discussions were made on the way forward and it was agreed to draft a master plan as per the new scope of construction and it was agreed to sign an addendum incorporating the changes. The Board of the Defendant confirmed that they would proceed with the Plaintiff and indicated that they were working with Fransburg Architects of USA to integrate the Plaintiff’s plans with their standards.</p> <p>It was further stated by PW1 that the Plaintiff obtained consent to proceed with the detailed design stage after presentation of the scheme, receiving clients comments and incorporating them. There was no email stopping the Plaintiff from proceeding with the work and the email of 09th March, 2010, was sent 6 months after the Plaintiff had proceeded with the work. In the email Annexture FF, the Plaintiff was requested to limit itself to the first stage outline design.</p> <p>PW2 Enoch Kibamu the expert witness explained what is meant by a detail design stage and what it involves. He explained that in practice there are informalities on both sides where work can be done and delivered without written contracts. And that if a scheme design is submitted to the client and feedback is awaited, detail design stage can commence.  Even where there is formal communication, sometimes there is informal communication, but either way, the Architect is entitled to be paid.  He explained that when an architectural plan is sent to a client and comments are made and sent back to the architect, it is an acknowledgment that certain works have been done. Changes will be incorporated and sent back to the client and the architect will then proceed with the work. But he emphasized that, if the contract expressly provides for approval in writing then it has to be expressly in writing.</p> <p>PW3 confirmed that presentations were made to the Defendant’s officials about 3 times after which the Plaintiff went up to the detail design stage.</p> <p>For the defence it was testified by DW1 that, one Phillip Curtin from the Plaintiff Company made two presentations of the design work and he was given a feed back and requested to incorporate the feed back in the outline design stage. The witness further stated that the presentation was objected to by some faculties and was not approved by the Defendant for the next stage. Also that there was no presentation of the incorporated comments or the detailed design stage and when the Plaintiff presented the estimated cost for the outline design stage it was beyond what the Defendant had considered.  Later the witness stated that a presentation of the conceptual design was made in 2009 and the Defendant gave feedback to be incorporated in the design stage.</p> <p>However, this witness admitted that he did not know the contents of the agreement and was not aware if the Defendant approved it.</p> <p>DW2 Christopher Maggio insisted that the Plaintiff was supposed to obtain authority before proceeding to the detail design stage and was requested by the Defendant to limit its involvement to the first design stage due to budget reasons. In 2013 when the Defendant wanted to start a new project, a meeting was held with the Plaintiff to discuss the new project and that is when the Plaintiff informed them that he had never been paid for the detailed design stage; but that the Plaintiff failed to prove that it had been approved.</p> <p>The witness added that available documents indicate that the Plaintiff was told not to proceed with the second stage having been fully paid for the outline design stage. The witness denied that any presentation of the detailed design stage was ever made adding that the Defendant is unaware of it. Further that the project was not moving due to dissatisfaction with the outline design stage, disagreement on the overall look of the architectural design and the cost, yet the intention was to be within the budget limit. At the same time, the witness expressed ignorance of the cost of the project in the contract.</p> <p>Denying knowledge of the Plaintiff giving the Defendant copies of the detailed design stage, he asserted that when the plaintiff demanded for payment, the Defendant refused and terminated the contract.</p> <p>The Plaintiff insists that the second stage of the contract was performed which is disputed by the Defendant; following which a fee note was submitted requiring the Defendant to pay, which the Defendant refused to do and instead terminated the contract.</p> <p>The following issues were framed for determination:</p> <ol> <li><strong>Whether there was breach of the terms of the agreement executed between the parties, and if so, who breached the agreement?</strong></li> <li><strong>Whether the Defendant wrongfully terminated the contract between it and the Plaintiff.</strong></li> <li><strong>Whether there was a variation in the contract between the parties.</strong></li> <li><strong>What remedies are available to the parties?</strong></li> </ol> <p>After hearing evidence from the parties, both Counsel were required to file written submissions and time lines were set. Counsel for the Plaintiff filed submissions on 04.05.15, but none were forth coming from Counsel for the Defendant. When the notice for judgment was issued for 21.03.16, Counsel for the Defendant informed court in writing that he had inadvertently forgotten to file submissions. – Letter is dated 18.03.16.  He prayed court to be allowed to file submissions in the interests of justice.</p> <p>Counsel for the Plaintiff endorsed the letter of Counsel for the Defendant, indicating that he was not objecting to the late filing of submissions in the interest of having all issues arising out of the case concluded.</p> <p>Both Counsel appeared before Court on 2103.16 and reaffirmed their agreed position. Counsel for the Defendant undertook to file submissions by 23.03.16, and Counsel for the Plaintiff to file a rejoinder by 24. 03. 16. They were then informed that judgment would be delivered on notice.</p> <p>In his submissions, Counsel for the Defendant raised what he termed as a preliminary observation and prayed Court to give directions on the matter.</p> <p>He stated that the parties had entered into an arbitration agreement under clause 9.2 of the contract between the parties _ Exhibit PW1. The clause requires any dispute between the parties to be sent for arbitration.</p> <p>Counsel argued that while the Defendant submits to the unlimited jurisdiction of the High Court under the Constitution, nonetheless the practice of the courts is to refer such matters to arbitration. The case of <strong>Uganda Telecom Ltd vs. Dmark Ltd Misc. Application 120/14</strong> was cited in support.</p> <p>In that case, Justice Kainamura referred the dispute to arbitration in accordance with the agreement between the parties; and observed that there was no need to have the matter stayed in the High Court as the dispute would be wholly resolved.</p> <p>It was then prayed that despite the stage the present case had reached, it ought to be referred to arbitration.</p> <p>In his response, Counsel for the Plaintiff contended that the preliminary observation was intended to deny the Plaintiff the reliefs sought in the suit and to continue to frustrate the company.</p> <p>Court was urged to look at Article 139 (1) of the Constitution. The article gives the High Court unlimited original jurisdiction in all matters before it.</p> <p>It was further pointed out that the case was referred to mediation which eventually failed due to the uncompromising stance of the Defendant. Counsel also observed that, it was cause for suspicion that the Defendant was raising the issue at this stage after the case had been heard and all the witnesses have testified. He emphasized that by raising the matter at this stage, the Defendant intended to cause more harm and misery to the Plaintiff by delaying justice contrary to Article 126 (2) (e) of the Constitution.</p> <p>Court was urged to take cognizance of the fact that notice for judgment had been issued for 21.03.16, and the Plaintiff’s Counsel accommodated Counsel for the Defendant to file late submissions. However, that for the Defendant to seek to refer the matter to arbitration after 3 years was unfair.</p> <p>It was then prayed that Court exercises its unlimited original jurisdiction under the Constitution and delivers judgment in the matter.</p> <p>The submissions of both Counsel have been given due consideration.</p> <p>An arbitration clause is <strong>“a clause that requires parties to resolve their disputes through an arbitration process. Although such a clause  may or may not  specify that arbitration occur within a specific jurisdiction, <em>it always binds the parties to a type of resolution outside the courts, and is therefore considered  a kind of forum selection clause”</em></strong> – <strong>Wikipedia, the Free Encyclopedia</strong></p> <p>In the present case, the agreement entered into by the parties provided under clause 9.2 that “<strong>any dispute between the parties be sent for arbitration”.</strong></p> <p>Under S. 5 of the Arbitration and Conciliation Act, “<strong>a Judge or Magistrate before whom proceedings are being brought in a matter which is subject of an arbitration agreement <em>shall if a party so applies after the filing of a statement  of defence and both parties have been given a hearing, r</em>efer the matter back to arbitration”.</strong></p> <p>However, neither of the parties in the present case made any application to refer the matter back to arbitration, after the proceedings had been filed. Indeed, the issue of arbitration was never brought to the attention of Court until after the case was heard and parties filed their submissions. That is when Counsel for the Defendant raised the issue as a preliminary observation.</p> <p>And as already pointed out in this judgment, Counsel for the Defendant did not remember to file his submissions until after notice for judgment had been issued.</p> <p>This Court therefore finds that, at this stage when the case has been fully heard, it would be an abuse of Court process to refer the matter to arbitration. By remaining silent until the stage of filing submissions, the parties are deemed to have waived their right to have the matter arbitrated.</p> <p>Both Counsel agree that the High Court has unlimited original jurisdiction in all matters before it. - Article 139 of the Constitution. And the fact that parties agreed to refer disputes to arbitration does not oust the jurisdiction of Court.  This Court has the jurisdiction to completely and finally determine all the matters in controversy between the parties and to grant all the remedies any of the parties is entitled to. - S. 33 Judicature Act.</p> <p>The case of <strong>Uganda Telecom Ltd vs. Dmark Lt (Supra)</strong> relied upon by Counsel for the Defendant is distinguishable from the circumstances of the present case. In that case, the issue of arbitration was raised immediately after the pleadings had been filed and before full hearing of the case had taken off.</p> <p>The preliminary observation is accordingly rejected for all those reasons and court goes ahead to determine the issues raised by the parties in the order that they were presented.</p> <p><strong>Whether there was a breach of the terms of the Agreement between the parties, and if so, <em>who breached the Agreement?</em></strong></p> <p><em>Breach of contract is defined as <strong>“a violation by failing to perform ones promise, by repudiating it, or by interfering with another party’s performance”. </strong></em>– <strong>Black’s Law Dictionary, 8th Edition, page 202.</strong></p> <p>In the present case both parties agree that they entered into a contract whereby the Plaintiff was to provide architectural services to the Defendant.  The contract was in writing – <strong>Exhibit P1.</strong></p> <p>The contract provided for the works to be executed in different stages that included the following: - appraisal stage, strategic briefing stage, outline proposal stage, detail design stage and final proposal stage among others.</p> <p>The parties agree that the outline proposal stage was completed presented to the Defendant’s Board, was adopted and paid for.</p> <p>The disagreement between the parties arose when the Plaintiff claimed payment for the detail design stage and sent a fee note to the Defendants requiring payment.</p> <p>The Defendant terminated the contract between the parties, contending that the Plaintiff was not entitled to payment as it had been required to limit its work to the outline proposal stage due to budgetary constraints of the Defendant: However, the Plaintiff contends that by then, the detail design stage had been completed with the knowledge of the Defendant – <strong>Exhibit P4</strong> dated 28.01.13 is the fee note. While <strong>Exhibit P3</strong> – the detail design stage indicates that it was completed by 17.02.10.</p> <p>However, the Defendant insists that, for the Plaintiff to advance to the detail design stage required the Defendant’s written consent as per clause 2.3 of the contract – <strong>Exhibit P1.</strong></p> <p>The clause provides that <strong><em>“in relation to the services, the Architect should first obtain the consent of the client before proceedings with the services or initiating any work stage.  The Architect shall first confirm such authority in writing.”</em></strong></p> <p>The Defendant insists that Plaintiff obtained no such written consent and indeed provided no such written confirmation.</p> <p>From the evidence available, it is apparent that there were a number of communications between the parties both verbal and by email. – See <strong>Annexture FF to the plaint and ID2-25.</strong></p> <p>In the email dated 09.03.10 – by one Philip Curtin of the Plaintiff Company to Doral Scott Grooves – the Plaintiff indicates that <strong><em>“officially as Peter has asked us to limit our involvement for budget reasons to the first stage outline design. We have only committed to working within what was agreed as the budget of US Dollars 800,000.  However, as you will be aware, we have actually at</em></strong> <strong>“our own risk”</strong> <strong><em>carried the process to detail design stage, we have incorporated all the comments and suggestions mainly the increase in the area of preparation and staff use and remodeling of the DT laboratory and the plan shown in the presentation are now detail design layout.  We have also had our quality surveyor do a full measure of the building….”</em></strong></p> <p>While the above evidence supports the Defendant’s contention that the Plaintiff was required to limit involvement to the project outline design stage, due to budgetary constraints, it is contradicted by the Defendants proposal to sell adjacent land to obtain funding in order to proceed with the project; and also by making comments and suggestions that were then incorporated by the Plaintiff in the detail design stage.</p> <p>Indeed, having received the email of the Plaintiff in those terms, and the Defendant taking no other step to stop the Plaintiff from continuing with the work on the detail design stage, the Defendant is deemed to have given its consent to the Plaintiff to go ahead with the work.</p> <p>The Plaintiff was given the impression that the project would continue as soon as funding was available and the Defendant is estopped from denying that it’s conduct implied consent to the Plaintiff to go ahead with the detail design stage.  The lack of funds to continue with the project cannot now be said to amount to a stop order not to proceed with the detail design stage; when the plaintiff was given the impression that once adjacent land was sold and funding obtained the project would continue. – Refer to S.114 of the Evidence Act which provides that <strong><em>“when a person has by his or her declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon that belief, neither he/she nor his/her representative shall be allowed in any suit or proceedings between the parties to deny the truth of that thing.”</em></strong></p> <p>The Defendant by indicating that the contract would continue after more funding was obtained which intimation was relied upon by the Plaintiff to continue with the detail design stage, is estopped from arguing that the Plaintiff had no permission to continue with the work. – See the case of <strong>Central London Property Trust Ltd vs. High Trees House Ltd [1947] KB 130 </strong>which held that <strong><em>“for one to succeed in the principle of estoppel, he must show that there was a representation or fact made by the opposite party, relied on and acted upon by the other party to his or her detriment.”</em></strong></p> <p>See also the case of <strong>Riddoch Motors Ltd vs. Cast Regian Corporation [1971] EA 33 - </strong>where a party who had received a tractor repair service and never protested nor returned the spares for five weeks and yet had opportunity to reject or accept the supply was held  liable.</p> <p>The Defendant in this present case had the opportunity to tell the Plaintiff not to continue with the detail design stage after being informed by the Plaintiff by email that work was being done, but did not do so. The defendant is accordingly estopped from denying that it permission was granted to the Plaintiff to do the work.   The same principle is restated in the case of <strong>Edward Makubuya t/a M Edward Engineering Works vs. Kampala City Council, Kawempe Division HCCS 59/2003</strong>.</p> <p>In the circumstances of the present case, the Plaintiff only waived the right to insist on the time limits within which the contract was to be performed by accepting to hold on until further funding was obtained by the Defendant; but did not waive the right to be paid for work done.  This court therefore finds that, the Defendant breached the contract when it refused to pay the Plaintiff for the detail design stage work and instead terminated the contract.</p> <p> </p> <p>The next issue is <strong>whether the Defendant wrongfully terminated the contract between the parties.</strong></p> <p>Under clause 8.5 of the contract between the parties- <strong>Exhibit P1</strong> <strong><em>“either party had discretion to give written notice to the other so as to determine any or all the architects services/ obligations under part 2 while stating the ground.”</em></strong></p> <p>The Defendant terminated the contract in this case on the ground that the Plaintiff never obtained the necessary written consent to advance to the detail design stage of the works. - See the letter of the Defendant’s lawyer to the Plaintiff dated 19th February, 2013.  The Plaintiff claimed that this was a fundamental breach of the contract.</p> <p>Having found that it was the Defendant who breached the contract, for reasons already stated herein, it follows that the termination of the contract was wrongful. There was no fundamental breach on the part of the Plaintiff entitling the Defendant to terminate the contract and when the obligations of the Plaintiff had been performed at the time of termination.  Under Clause 8.8 of the contract, <strong><em>“the termination of the services or architects obligation was to be without prejudice to the accrued rights of either party”.</em></strong></p> <p>To therefore terminate the contract and refuse to pay the Plaintiff for work already performed was wrongful.</p> <p>The next issue for determination is <strong>whether there was a variation of the contract between the parties.</strong></p> <p>Both parties agree that there was never a variation of the terms of the contract between the parties.  The parties had agreed that any variation of the contract had to be in writing.</p> <p>What the evidence indicates was an attempt by the parties to vary the contract.  There were discussions between the parties about a new master plan for the project, but both parties agree that this was never concluded as the terms of the new engagement were never agreed upon.</p> <p>The Plaintiff sent draft proposal of the amended terms, upon becoming aware that there was a change from the original scheme given to the Defendant; including the construction cost, approved design and instructions from the Defendant to incorporate a new master plan of Fransburg.  But as submitted by the Plaintiff, <strong>“the same never saw the light of day”.</strong></p> <p>Court therefore finds that there was no variation of the contract.</p> <p> </p> <p><strong>What remains for court to determine are the remedies the parties are entitled to if any.</strong></p> <p>The Plaintiff sought to recover US Dollars 14,160 as the fee for work done on the detail design stage, general damages, and costs of the suit.</p> <p>The Defendant contends that the Plaintiff is not entitled to any of those remedies.</p> <p><strong>Fee for work done: US Dollars 14,160</strong> – The Plaintiff claims that it is entitled to payment of US $ 14,160, as the fee for work done on the detail design stage.</p> <p>Counsel for the Plaintiff submitted that under the principle of Quantum Meruit, the Plaintiff is entitled to his payment.  The case of <strong>Fire Masters Ltd vs. BAT (U) Ltd HCCS 431/2012 was</strong> cited in support.</p> <p>Counsel for the Defendant argued on the other hand that the Plaintiffs prayer for the sum amounts to a prayer for special damages.  And that 0.6 r.3 C.P.R requires that the particulars of the said special damages to be stated in the pleadings and that the law requires them to be proved.</p> <p>He argued that, apart from stating the sum in the pleadings, the Plaintiff did not specifically plead the sum nor was it proved. He prayed court to strike out the claim.</p> <p>Commenting about the alternative prayer for Quantum Meriut, Counsel stated that the work for which the sum is claimed has never been completed as they were never submitted to the Local authorities and to the Defendant and have never been approved by the Board of the Defendant, and therefore the sum cannot be claimed.</p> <p>The plaint in the present case does not specifically plead the particulars of US $ 14,160.  However, under the principle of Quantum Meruit, the Plaintiff is entitled to reasonable remuneration for works done upon the breach of contract by the Defendant. – See <strong>Halbuys Laws of - 4th Edition – Re -issue Volume 9 (1) paragraph 1155.</strong></p> <p>The Plaintiff, this court has already found was unjustly prevented by the other party from completing the contract.  The Plaintiff was requested to hold on while the Defendant found more funds; in the meantime work was carried on to the detail design stage without any complaint from the Defendant.  Then Defendant tried to vary the contract by introducing a third party to sign the amended design of work done by the Plaintiff.  When Plaintiff asked for payment, the contract was wrongfully terminated. The submission of Counsel for the Defendant that the plaintiff never submitted the work to the Local Authorities and to the Defendant for approval by its Board cannot therefore be sustained.</p> <p>In any case, as already pointed out in this judgment, while the contract between the parties could be terminated, it was <strong><em>without prejudice to the accrued rights of either party</em></strong>.  The Plaintiff who had already done the work at the time the contract was terminated is accordingly entitled to payment of US$14,160.</p> <p> </p> <p><strong>General Damages:</strong> As rightly submitted by Counsel for the Defendant general damages are <strong><em>“damages the law presumes to be a natural or probable consequence of the act complained of as they are its immediate, direct or proximate result.”</em></strong></p> <p>They are meant to put the injured party in almost the same position it would have been had the wrong complained of not occurred.</p> <p>Counsel for the Plaintiff proposed the sum of US $ 50,000 as general damages, while the Defendant maintains that they have not wronged the Plaintiff in any way and general damages are therefore not justified.</p> <p>Under <strong>S.61 (1) Contracts Act,</strong> Court is obliged to award compensation for any loss or damage caused to one party due to the breach of contract.</p> <p>Court has found in this case that the Defendant breached the contract and they are therefore liable to pay damages to the Plaintiff.</p> <p><strong><em>“General damages are assessed according to the opinion and judgment of a reasonable man”</em></strong>- See case of <strong>Haji Asuman Mutekanga vs. Equator Growers (U) Ltd SCCA 07/1995.</strong></p> <p>Looking at the circumstances surrounding this case, court finds that the figure of US Dollars 50,000 proposed by Counsel for the Plaintiff is excessive. <strong><em>“General damages should not be too high as to discourage litigants from bringing their disputes before court.”</em></strong></p> <p>Secondly under <strong>S.17 (1) of the Bank of Uganda Act</strong> – the unit of currency of the shilling and under sub-section <strong>(2)</strong> thereof <strong><em>“all monetary obligations or transactions shall be expressed, recorded and settled in the shilling unless otherwise provided for under any enactment, or is lawfully agreed between the parties to an agreement under any lawful obligation.”</em></strong></p> <p>While the payment for the contractual work was agreed to by the parties to be in dollars, the general damages will be awarded in Uganda Shillings, more so considering that they were not a foreseen item between the parties and also because that interest will be awarded on the sum already allowed to the Plaintiff for work done.</p> <p>Court finds in this case that the sum of Shs. 20,000,000/- will suffice as general damages, considering that the plaintiff has been deprived of payment since 2010, when the fee note was presented.</p> <p><strong>Interest:</strong> - Counsel for the Plaintiff prayed for interest to be granted in all pecuniary awards at the rate of 25% from the date of signing the contract until payment in full.</p> <p>Under S.26 (2) C.P.A. - Court has discretionary powers to award interest even where it was not agreed upon, as in the present case.</p> <p>Refer also to the case of <strong>Crescent Transportation Co. Ltd vs. B.M Technical Services Ltd CACA 25/2000</strong> – where it was held that <strong><em>“where no interest rate is proved, the rate is fixed at the discretion of court.”</em></strong></p> <p>The rate of 25% proposed by Counsel for the Plaintiff would be excessive in the circumstances. – Refer to case of <strong>Nipunnorathan Bhatia vs. Crane Bank Ltd CACA 75/2006</strong> – where it was held that <strong><em>“interest allowed on amount to be paid where there was no agreement should be simple interest.</em></strong><em>”</em></p> <p>In that case, the Court of Appeal reduced the payment of interest at the rate of 36% on the amount of $57,500 that was to be refunded, to 6% per annum from the date of judgment until payment in full.</p> <p>The Court pointed out that, <strong><em>“The interest rate charged on the US Dollar is far less than interest charged on Uganda Shillings.  That this seems to be as a result of the exchange rate; and the law prohibits award of interest that would amount to unjust enrichment or benefit to one of the parties”.</em></strong></p> <p>Applying the holding in the above case to the circumstances of the present case, Court will allow interest at 6% on the US $14,160, from the date of filing the suit, until payment in full.</p> <p>As regards interest on general damages, court takes into account the established principle that <strong><em>“interest on general damages is compensatory in nature against the person in breach of the contract.”</em></strong>  Under <strong>S.26 (3) C.P.A</strong> what amounts to simple interest is a matter for discretion of the court.</p> <p>The Plaintiff is therefore awarded interest on general damages at the rate of 10% from the date of judgment till payment in full.</p> <p> </p> <p><strong>Costs: </strong>- Applying for the costs of the suit, Counsel for the Plaintiff submitted that costs follow the event and is a matter of discretion of the court to be exercised judiciously.  He relied on the case of <strong>Superior Construction and Engineering Ltd vs. Nopay Engineering Industries Ltd HCCS 702/1989.</strong></p> <p>Counsel also referred to clause 9.9 of the contract, where the parties agreed that the Defendant would indemnify the Plaintiff in respect of his legal and other costs in any action or proceedings together with a reasonable sum in respect of time spent.</p> <p>Counsel for the Defendant on the other hand prayed court to dismiss the suit with costs to the Defendant.</p> <p>Decided cases have confirmed the principle that <strong><em>“costs of any cause or action or matter shall follow the event unless court for good cause orders otherwise.”</em></strong> – See <strong>S.27 (2) C.P.A.</strong></p> <p>In the present case, the Plaintiff being the successful party is entitled to costs of the suit and they are hereby allowed.</p> <p>For all the reasons set out herein, judgment is entered for the Plaintiff against the Defendant in the following terms:-</p> <ol> <li>The Plaintiff is awarded the sum of US Dollars 14,160 against the Defendant as remuneration for work done on the principle of quantum meriut.</li> <li>General damages of the sum of Uganda Shillings 20,000,000/-.</li> <li>Interest is awarded of the sum of US Dollars 14,160 at the rate of 6% per annum from the date of filing the suit until payment in full and on the general damages at the rate of 10% per annum from the date of judgment until payment in full.</li> <li>Costs of the suit are also awarded to the Plaintiff.</li> </ol> <p> </p> <p><strong>Flavia Senoga Anglin</strong></p> <p><strong>JUDGE</strong></p> <p><strong>30.05.16</strong></p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-b9264c1dae5f9e771c1b31611ad32f00"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/commercial-court/2016/52/commercial-court-2016-52.doc" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Wed, 15 Jun 2016 11:57:44 +0000 jane mugala 26220 at https://old.ulii.org Twinomugisha v Uganda Alluminium Ltd (Civil Appeal No. 19 of 2001) [2002] UGSC 23 (24 April 2002); https://old.ulii.org/ug/judgment/supreme-court/2002/23 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/contract-law" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Contract Law</a></li><li class="field-item odd"><a href="/tags/enforcement-contract" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Enforcement of contract</a></li><li class="field-item even"><a href="/tags/performance-contract" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Performance of contract</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p>THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA</p> <p>AT MENGO<br /> &nbsp;</p> <p>CORAM: ODOKI, CJ., TSEKOOKO, KAROKORA, MULENGA</p> <p>KANYEIHAMBA, JJSC</p> <p>&nbsp;</p> <p>CIVIL APPEAL NO. 19 OF 2001</p> <p>BETWEEN<br /> <br /> RESTETUTA TWINOMUGISHA APPELLANT<br /> AND<br /> UGANDA ALLUMINIUM LTD RESPONDENT</p> <p><em>(Appeal from the Judgment of the Court of Appeal of Uganda at Kampala before their Lordships Kikonyogo, DCJ, Twinomujuni and Kitumba, JJA dated 3<sup>rd</sup> August 2001 in Civil Appeal No. 22 of 2000)</em></p> <p><u>JUDGMENT OF KAROKORA, JSC</u></p> <p>This is an appeal against the decision of the Court of Appeal dated 3<sup>rd </sup>August 2001 which allowed the appeal reversed the decision of the High Court and ordered each party to bear its own costs in the Court of Appeal and the High Court.</p> <p>The background to this appeal is briefly as follows:- The appellant's late husband, Tony Twinomugisha hereinafter referred as "deceased" was employed by the respondent as Chief Accountant prior to his death. The deceased had opened up a joint bank account with his wife, the appellant, in Uganda Commercial Bank, Industrial Area Branch. He was obtaining goods from the respondent company and apparently, without the knowledge of the appellant, he was paying for those goods by issuing cheques drawn and signed by the appellant on their bank joint account. The appellant signed several blank cheques in the cheque book which the deceased kept in his drawer in the office. Whenever he wanted to pay for the goods he would ask the cashier of the respondent company, Ms. Frolence Tiko DW3 to fill the blank cheques. Tiko testified that her duties as cashier included receiving and banking of cash and cheques. The deceased was her boss and used to give her cheques signed by the appellant and instructed her to fill in the details that he would give her including the amount of money and the date. She stated that she filled two cheques of Shs. 4,000,000/= each namely No. 075339 (exh D4) and No. 175338 (exh D5) and a third cheque of Shs. 6,000,000/= vide cheque No. 075344. She stated that these cheques were issued in respect of goods supplied to the plaintiff in a shop called Tyresland on Ben Kiwanuka street, which her agents acknowledged. She pointed out that the cheque (exh D5) for Shs. 4,000,000/= was dated 3/9/93 after the deceased had died on 2/9/93.</p> <p><br /> After the deceased's demise, Ms Tiko opened the drawer of deceased's desk in his office in the presence of other staff members and found several documents which included several cheques bearing the appellant's signatures. Most of the cheques were dated by her after the deceased's death and presented to the bank for payment. Those cheques which were credited on the ledger of the account of Tyresland were dishonoured and the debit on that account grew to Shs. 40,831,849/=. But, because some of the old cheques could not be recovered, the debit balance on the account showed a sum of Shs. 30,631,849/=.</p> <p>Mr. A.M. Jha, DW4 the Executive Director of the respondent company, returned from India and learnt that the deceased had misappropriated a sum of Shs. 47,731,000/= from the company. He demanded from the appellant payment of the amount. He reported the matter to police and the appellant was in September 1997 charged with the offence of issuing false cheques contrary to section 364(1)(5) of the Penal Code Act. She was released on police bond but kept on reporting to the police subsequent to her release.</p> <p>In October 1997, the appellant received a letter from the respondents' lawyers, M/S Mulenga &amp; Karemera Advocates, informing her that goods purchased by her company from the respondent had not been paid for as a result of fraudulent concealment of her company's indebtedness. The advocates' letter warned the plaintiff that unless within 7 days she paid the debt together with their legal fees, she would be reported to police for having issued a bouncing cheque and for conspiracy to defraud and or theft/obtaining goods by false pretence. The letter stated as follows:-</p> <p>&nbsp;</p> <p>Mrs. Restae Twinomugisha</p> <p>Tyresland (U) Ltd</p> <p>C/o Mr. Z Bishangenda</p> <p>NW&amp;SC</p> <p>&nbsp;</p> <p>Dear Madam,</p> <p>Re: <u>Bounced Cheque</u></p> <p>We act for M/s Uganda Aluminum Ltd of P.O. BOX 12133 K'la which has instructed us to write to you as follows:</p> <p>In or about July 1997 our client discovered that goods purchased by your company from our client had not been paid for as a result of the fraudulent concealment of your company's indebtedness by your late husband Mr. Tony Twinomugisha who was also our clients Chief Accountant. Our client further discovered a series of cheques issued by your company in purported settlement of your dues, which had been receipted but were never banked and instead were kept aside by your late husband. When our client discovered and presented them for payment they were all dishonoured. According to our instructions you were the signatory to all the cheques.</p> <p>&nbsp;</p> <p>Upon full investigation our client found that your company was indebted in the sum of U.Shs. 40,631,849/= and demanded repayment of the same. On 18/8/97 the administrator of the Estate of your late husband paid to our client U. Shs. 10,000,000/=. To date, however, the outstanding balance of Shs. 30,631,849/= remains unpaid despite several reminders and demands by our client.</p> <p>&nbsp;</p> <p>The purpose of this letter therefore is, as instructed to warn that if you do not pay to us the sum of 30,631,849 together with legal fees so far incurred of Shs. 1,500,000/= within 7 days from the date hereof our client will be left with no alternative but to lodge a formal complaint with the Criminal Investigation Department (CID) for your issuing of bounced cheques and conspiracy to defraud and or theft/obtaining goods by false pretences.</p> <p>&nbsp;</p> <p>Yours faithfully</p> <p>Mulenga &amp; Karemera Advocates</p> <p>c.c.Bishegenda</p> <p>c.c. The Executive Director.</p> <p>Upon receipt of the above letter she filed an action in the High Court complaining of harassment and intimidation which were calculated to extort from her the amount of indebtedness. She further complained that she had been defamed as a result of a false and malicious report made against her to police. She stated that her constitutional rights were violated.</p> <p>In his defence the respondent denied liability and at the same time counter claimed rom the appellant for Shs. 30,631,846/= as the balance outstanding on the goods supplied.</p> <p>The learned Principal Judge found that the appellant had suffered harassment, defamation and mental and physical anguish at the hands of respondent and awarded her combined general and exemplary damages of shs. 15,000,000/= as fair compensation for her harassment defamation and mental as well as physical anguish with interest and costs of the suit. The learned Principal Judge dismissed the counterclaim The respondent appealed to the Court of Appeal which allowed the appeal in part and dismissed the suit and the counterclaim and order that each party must bear its costs in the Court of Appeal and in the High Court, hence this appeal.</p> <p>There are six grounds in the memorandum of appeal framed as follows: 1. The learned Justices of the Court of Appeal erred in law and fact in the view they took of the pleadings and the issues as framed and in coming to the conclusion that: "It is therefore, necessary for this court to reappraise all the evidence, including the pleadings and submissions, and to come to its own conclusion as to whether the decision of the trial court can be supported"</p> <blockquote>2. The learned Justices of Appeal erred in law in not dealing individually with each ground of appeal in the mistaken assumption that such procedure would lead them.</blockquote> <blockquote> <blockquote>"to deal with a lot of irrelevant materials that were not Necessary for the determination of the (appeal)".</blockquote> </blockquote> <blockquote><br /> 3. The learned Justices of Appeal erred in law and caused grave injustice to the appellant in this appeal when they proceeded to decide the appeal after submissions had been concluded and without reference to counsel by focussing as. Twinomujuni JA put it,</blockquote> <blockquote> <blockquote>"On two broad issues, namely</blockquote> </blockquote> <blockquote> <blockquote> <blockquote>(a) Whether the evidence adduced by the plaintiff/respondent disclosed and proved a cause of action against the deponent/appellant.<br /> (b) Whether the counterclaim was proved to the required standard."</blockquote> </blockquote> </blockquote> <p>&nbsp;</p> <blockquote>4. The learned Justices of Appeal erred in law and in fact in their evaluation of the evidence on record without the advantage of having seen the demeanour of the witnesses to answer to the above issues they had set for themselves.<br /> 5. The learned Justices of Appeal erred in law in allowing the appeal in part and dismissing the counterclaim with the further order that each party bears its own costs here and in the High Court.<br /> 6. The learned Justices of Appeal erred in law and in fact in not upholding the judgment and decree of the Principal Judge.</blockquote> <p>&nbsp;</p> <p>I shall discuss grounds 1 and 2 separately, ground 3, 4 and 6 together, then ground 5 separately.</p> <p>Ground 1 complained of the view the Court of Appeal took of the pleadings and the issues as framed and in coming to the conclusion that:-</p> <p><em>"It is therefore necessary for this court to re-appraise all the evidence including the pleadings and submissions and to come to its own conclusion."</em></p> <p>This statement is a reflection of the provisions of Rule 29(1) of the Rules of the Court of Appeal. Therefore, I cannot fault the Court of Appeal as a first appellate court in its above statement. If further authority is required, this can be found in the decision of <em><u>Pandya VR (1957) EA 336, Sella 7 Anor v Associated Motor Boat 1968 EA 123</u> </em>and <em><u>Peters v Sunday Posts (1958) EA 478</u>. </em>I therefore do not find any justification for the criticism of the Court of Appeal by Dr. Byamugisha Counsel for the appellant. Therefore ground one has no merit and must fail.</p> <p>Ground 2 complained that the Court of Appeal was in error when it failed to deal with each ground of appeal on the ground that such procedure would lead the court into dealing with irrelevant material. In the lead judgment, Twinomujuni, JA, gave two reasons why there was considerable difficulty in dealing with the grounds of appeal. The first was that the plaint contained mostly generalities without specifics. For instance, it stated that the appellant had been harassed and defamed as a result of the false and malicious report made against her to police, and that her constitutional rights were violated but the pleadings never stated which of those rights were and whether she was seeking constitutional remedy under Article 50 of the Constitution. Further, looking at the plaint, it never disclosed facts constituting the cause of action and particulars of those facts. Even the written statement of defence never challenged the averments in the plaint as a result of it never became an issue at the trial whether the plaint disclosed a cause of action. The second reason for the difficulty was that the issues which were framed were either wrongly framed or none issues. As a result, he stated that the trial Judge dealt with all of them in his judgment, resulting in the counsel for appellant mounting a lot of irrelevant attacks in the judgment. For those reasons he said he would not to<strong><em> </em></strong>follow the traditional method of dealing individually with each ground since this was likely to lead him to deal with a lot of irrelevant material that he did not consider necessary for determining the appeal.</p> <p>Although normally each ground of appeal should be examined and determined on its merits, in some appeals where grounds of appeal are confusing and at times overlapping or repetitive or offend the rules of this court, they need not be considered individually. In the instant case the learned Justices of Appeal gave reasons for deviating from the traditional methods of dealing individually with each ground of appeal and properly dealt with those which were necessary and relevant to the appeal. As in my view no injustice was caused, would not fault the Court of Appeal. In the result ground 2 must fail.</p> <p>I now turn to grounds 3, 4 and 6. Ground 3, like ground 2 is complaining against the Court of Appeal for having decided the appeal without reference to counsel's submission but on merely basing its decision on the two broad issues, framed by Twinomujuni, JA. The learned Justice framed those issues in which the other two justices concurred, as follows:-</p> <blockquote>(a) whether the evidence adduced by the plaintiff disclosed and proved a cause of action against the defendant.</blockquote> <blockquote> <table> <tbody> <tr> <td>(b)</td> <td>Whether the counterclaim was proved to the required standard.</td> </tr> </tbody> </table> </blockquote> <p>&nbsp;</p> <p>In my considered view, the reasons which the Court of Appeal gave and which I have already discussed while discussing ground 2 of this appeal equally apply here. I would in the circumstances not repeat them here. Suffice it to say that what was paramount before the Court of Appeal was whether the claim by the plaintiff and the counterclaim by the defendant had been proved before the High Court.</p> <p>In determining whether the evidence adduced by the plaintiff disclosed a cause of action against the respondent it is necessary to discuss the four grounds of appeal and determine the issue of credibility of witnesses. It must be noted that the issue of credibility and reliability of witnesses as they testified, the court did not come in issue. The learned Principal Judge never doubted their credibility and reliability. He merely formed his opinion by inference from the evidence as a whole and held that the plaintiff had been defamed. The Court of Appeal, on the other hand, formed the opposite view by the same method.</p> <p>Dr. Byamugisha, Counsel for appellant supported the decision of the learned Principal Judge in which he held that the facts complained of in the plaint had proved that the appellant had suffered harassment, defamation, mental and physical anguish. On the other hand Mr. Musisi, Counsel for the respondent, submitted that the Court of Appeal re-evaluated the relevant material and determined whether the claim and the counterclaim had been proved.</p> <p>Twinomujuni, JA who wrote the lead judgment stated:-</p> <p><em>"It should be noted that she (appellant) did not make any effort to give particulars of the alleged arrest, defamation or any other loss or damage nor does she indicate which of her constitutional rights were curtailed or interfered with.'</em></p> <p><em>Kikonyogo, DCJ concurred with Twinomujuni, JA when she held: "As far as I am concerned the words used in the advocate's letter were not in their natural meaning</em></p> <p><em>defamatory. She had to prove her allegations </em><strong> </strong>I<strong> </strong><em>am unable to find evidence to support the trial Judge's finding that the advocates' letter did harass and intimidate the plaintiff "</em></p> <p>Kitumba, JA also concurred when she stated:</p> <p><em>the respondent failed to plead those violations</em></p> <p><em>and to adduce evidence to prove the same".</em></p> <p>Considering all the evidence on the record not persuaded by Dr. Byamugisha's arguments.</p> <p>Firstly, there was no evidence led by the appellant to show how either reporting the appellant to police for fraud or theft or the writing of a letter to her by M/S Mulenga &amp; Karemera Advocates, demanding that if she did not pay the debt within 7 days she would be reported to police for possible prosecution, defamed and caused her mental and physical anguish.</p> <p>Secondly, there is no evidence that the police ever learnt of the contents of the letter or acted on those contents to the detriment of the appellant or at all.</p> <p>Thirdly, there was no evidence that the appellant never signed those cheques and that goods were not supplied by the respondents against those cheques.</p> <p>Lastly, we were not shown how in view of the above facts, reporting the appellant to police for investigation for either fraud or theft or obtaining goods by false pretences infringed her constitutional rights. Equally I fail to see how the letter from the advocates threatening to report her to police for possible prosecution if she did not pay the debt within 7 days infringed on her constitutional rights.</p> <p>Mr. Musisi, for respondent, while rightly supported the decision of the Court of Appeal. He cited the case of <u>Benmax v Austin motor Co. Ltd (1955) AC 370 at page 375 in which Lord Reid cited Thomas v Thomas (1947) 1 ALLER 582</u> to support the decision of the court. In that case Lord Thankerton had held:-</p> <p><em>"(1) Where a question of fact has been tried by a Judge without a jury, and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge's conclusion;</em></p> <blockquote> <blockquote><br /> <em>(2) The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence. (3) The appellate court, either because the reasons given by the trial Judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court. It is obvious that the issue and importance of having seen and heard the witnesses will vary according to the class of cases and it may be the individual cases in question." </em><br /> Lord Reid continued :<br /> <em>"Where there is no question of credibility or reliability of any witness, and in cases where the point in dispute is the proper inference to be drawn from the proved facts, an appeal court is generally in as good a position to evaluate the evidence as the trial Judge, and ought not to shrink from that task, though it ought, of course, to give weight to his opinion."</em></blockquote> </blockquote> <p>&nbsp;</p> <p>I respectfully agree with the above dictum the instant case there was no dispute about any credibility or reliability of the witnesses. The only issue was on the proper inference to be drawn from the proved fact. The Court of Appeal was in as good a position to evaluate the evidence as the trial Judge and form an independent opinion though it had to attach importance to the judgment of the learned Principal Judge.</p> <p>Clearly, there was no evidence to prove that either the report the Executive Director of the respondent company made to the police regarding the loss of their money through forged cheques was false or the letter M/s Mulenga &amp; Kalemera Advocates wrote to the appellant about the bounced cheques was false. A letter from Mr. Z. Bishagenda, the Administrator of the Estate of late Twinomugisha acknowledged the indebtedness of the deceased husband of the appellant. In the letter, there was payment of Shs. 10,231,849/= outstanding on account of Tyresland. There was an undertaking that they would continue paying the amount owed till the whole debt was cleared. In that same letter, the administrator of deceased's estate appealed to the respondent to let the appellant either remain in the house where her late husband used to live with the appellant or be allowed to take goods on credit from the respondent company, so that she could sell, realise profit and repay the debt.</p> <p>In my view, as the respondent supplied goods in reliance on the cheques which bore the appellant's signatures, the respondent was perfectly right to report her to police for investigation and for appropriate action. In my view, any course taken by the respondent could not be a foundation for the appellant to file an action against the respondent in tort for defamation.<br /> &nbsp;</p> <p>In the result ground 3 fail.</p> <p>Ground 4 complained that the Justices of Appeal erred in law and fact in their evaluation of the evidence on record without the advantage of having seen the demeanour of the witnesses to answer to the above issues they had set for themselves. In my view, my discussion of ground 3 has substantially disposed of ground 4. I would therefore be repeating myself to discuss this ground. In the result ground 4 must fail.</p> <p>Ground 6 complained that the court of Appeal erred in law and fact in not upholding the judgment or decree of the learned Principal Judge.</p> <p>With due respect to the Counsel for appellant, when he addressed us, he never pointed out to us where the Court of Appeal erred in law and fact and I do not see where the learned Justices erred. In the result, this ground has no merit and must fail.</p> <p>Ground 5 deals with counterclaim. That issue had been dismissed by the learned Principal Judge. In the Court of Appeal there was no specific objection against the decision of the Principal Judge on the counterclaim. However, its objection was implicit in ground 2 where there was objection that the Principal Judge had erred in law and fact in finding that the appellant was not legally responsible to make good the dishonoured cheque No. 075339, which she had signed. The appellant admitted having signed it in blank and having handed it to her husband.</p> <p>After her husband's death some blank cheques signed by the appellant were found in deceased's office. Tiko DW3 filled the amount of money, the payee and the date on instructions of DW4. When the cheque in question was presented for payment, it was dishonoured.</p> <p>The learned Principal Judge dismissed the counterclaim without considering and determining whether the goods had been supplied to Tyresland shop in respect of the cheque. He dismissed it merely because the plaintiff had not written the names of the defendant or to the order of the defendant and also because she had not written the amount of money which the defendant would withdraw.</p> <p>On appeal to the Court of Appeal, the counterclaim was dismissed, because Tyresland or Tyresland Ltd. never existed and therefore the appellant could not conceivably own such a company and that there was no way a non-existent company could order or receive goods from the respondent. Although the appellant signed blank cheques on a bank account jointly owned by her and her late husband, she did not know what the husband used it for. Moreover the cheques were not signed in contemplation of payment for any goods supplied by the respondent or anyone else.</p> <p>In conclusion, Twinomujuni, JA who wrote the leading judgment with which the other 2 justices concurred held that:-</p> <p>&nbsp;</p> <p><em>" It is not possible for me to hold that a person</em></p> <p><em>who signs an otherwise completely blank cheque can be said to have issued it to anyone within the meaning of the definition of that word in section "2" of the Bills of Exchange Act. The word issue:</em></p> <blockquote> <blockquote><br /> <em>'means the <u>first delivery</u> of a bill or note, <u>complete in form</u> to a person who takes it as a holder", "delivery" means transfer of possession, actual or constructive from one person to another and "holder" means:-</em><br /> <em>"the payee or endorsee of a bill or note, who is in</em><br /> <em>possession of it,</em><br /> <em>or the bearer thereof".</em></blockquote> </blockquote> <p>&nbsp;</p> <p><em>The appellant could not be said to be a "holder" since was not a payee or endorse known to the respondent. It is common knowledge that many of the cheques were filled by employees or agents of the appellants without reference to or knowledge of the respondent and many of them were filled after the death of her husband. By signing blank cheques, some of them many months before they were "issued" to the appellant by its own agents, the respondent did not bind herself to the liable to any person to whom such a cheque could be fraudulently issued. I find no merit in the counterclaim."</em></p> <p>The complaint before the Supreme Court was that the Court of Appeal erred in law in allowing the appeal in part and dismissing the counterclaim with further order that each party bears its own costs here and in the High Court.</p> <p>The counterclaim had been based on the dishonoured cheque No. 075339 for Shs. 4,000,000/=. The appellant had admitted before the High Court that she signed the blank cheque and handed it to her late husband. It was argued on her behalf that she could not be liable for what her husband did with the cheque.</p> <p>The Court of Appeal never considered the cheque in question on which the counterclaim was based. It merely decided the issue of counterclaim on existence or non-existence of Tyresland Ltd or Tyresland and held that there was no way a non-existent company could order or receive goods from the appellant or any one else.</p> <p>With due respect to the Justice of Appeal, goods were delivered by the respondent to Tyresland shop along Ben Kiwanuka Street and the cheque in question was not a company's cheque but an individual's cheque. The respondent who was in possession of it, filled up the amount due to it, the payee and the date and, it thus became a complete bill.</p> <p>It must be noted that the issue of a person in possession of a signed blank cheque is well settled in law. The Hulsbury's Laws of England volume 4, 4<sup>th</sup> Edition paragraph 350 states as follows:-</p> <p><em>'Where a person is in possession of an instrument wanting in any material particular he has prima facie authority to fill the bill in any way he think fit"</em></p> <p>The above principle was applied in the case of <em><u>Gerald Mcdonald &amp; Co. V Nash &amp; Co. 1924 AC</u> </em>625</p> <p>&nbsp;</p> <p><em>"The applicant had implied authority to fill in their names as payee as they did over the name of the respondents and that when so filled up the bill became retrospectively due."</em></p> <p>Further, our Bills of Exchange Act (Cap 76) provides in section 20(1) that</p> <p><em>" and in like manner when a bill is wanting in</em></p> <p><em>any material particular the person in possession of it has a prima facie authority to fill up the omission in any way he thinks."</em></p> <p>In my opinion, the respondent having supplied goods which were delivered by the appellant's driver, Musika Brown, in vehicle Reg. No. UXK 848 belonging to the appellant, the respondent who was in possession of the blank cheque signed by the appellant had prima facie authority to fill up the name of the payee, the amount of money for the goods they had supplied and the date. In the instant case, the appellant was not disputing that the goods indicated on the delivery note were not supplied or if supplied, the amount for the goods received was worth less than the amount on the cheque. In the result, the counterclaim for Shs. 4,000,000/= should have been allowed by the Court of Appeal. However, because there was no cross-appeal to this court, I shall make no order in respect of the claim by the respondent grounded on cheque No. 0753339 for Shs. 4,000,000/=. In the result, ground 5 must fail.</p> <p>Consequently, as grounds 1, 2, 3, 4, 5, and 6 have failed this appeal must fail. Accordingly the appeal is dismissed with costs here and in the lower courts.<br /> <br /> &nbsp;</p> <p><strong><u>JUDGMENT OF ODOKI, CJ</u></strong></p> <p><br /> I have had the advantage of reading in draft the judgment prepared by Karokora JSC. I agree with his judgment and the orders he has proposed.<br /> <br /> As the other members of the court also agree with the judgment and orders proposed by Karokora JSC, there will be an order in the terms proposed by Karokora JSC.<br /> &nbsp;</p> <p><strong><u>JUDGMENT OF TSEKOOKO. JSC.</u></strong></p> <p>This is a second appeal from the decision of the Court of Appeal. The Court reversed the judgment of the High Court. In the latter Court The Principal Judge awarded shs.15m/= to the present appellant as damages for defamation.<br /> <br /> I have had the advantage of reading in draft the judgmnet prepared by my learned brother, Karokora, JSC, and I agree that the appeal should be dismissed. I think that the respondent ought to have its costs in this court.<br /> <br /> The facts giving rise to these proceedings have been outlined by my learned brother. I need not repeat them here.<br /> <br /> The memorandum of appeal contained six grounds of appeal. Dr. Joseph Byamugisha, Counsel for the appellant, argued the grounds of Appeal en bloc. I will make brief observations on ground 1, 2 and 3. I will produce them as they are formulated.</p> <blockquote>1. The learned Justices of the Court of Appeal erred in law and in fact in the view they took of the pleadings and the issues as framed and in coming to the conclusion that:-</blockquote> <p><em>"It is therefore, necessary for this court to re-appraise all the evidence, including the pleadings and submissions, and to come to its own conclusion as to whether the decision of the trial court can be supported".</em></p> <blockquote>2. The learned Justices of the Court of Appeal in not dealing individually with each ground of appeal in the mistaken assumption that such procedure would lead them:-</blockquote> <p><em>"to deal with a lot of irrelevant materials that (were) not necessary for determination of (the appeal)".</em></p> <blockquote>3. The learned Justices of the Court of Appeal erred in law and caused grave injustice to the appellant in this appeal when they proceeded to decide the appeal, after submissions had been concluded and without reference to counsel by focussing as Twinomujuni J.A. put it,</blockquote> <p>"On two broad issues, namely:-</p> <blockquote><em>(a) Whether the evidence adduced by the plaintiff/respondent disclosed and proved a cause of action against the defendant/ appellant.</em><br /> <em>(b) Whether the counterclaim was proved to the required standard".</em></blockquote> <p><br /> <br /> I should think that the words in quotation in ground one indicate that the Court of Appeal was aware of its duty as the Court of Appeal as a first appellate court. Be that as it may, in his submissions on these grounds, Dr. Byamushisha pointed out that a plaint had been filed setting out the facts giving rise to the suit, and that issues were framed by the trial Principal Judge who awarded the appellant shs.15m/= as general damages for defamation. Learned counsel alluded to certain passages from the lead judgment of the Hon. Justice Twinomujuni, JA. in the Court of Appeal and contended that the observations of the Court of Appeal were unfair. Learned counsel further contended that the members of the Court of Appeal might not have read through the evidence and the arguments in the trial court record. He criticised the court for abandoning the issues framed by the trial court and for framing its own issues. He again criticised the Court of Appeal for framing its own grounds of Appeal on the basis of which the court erroneously decided the appeal. Counsel contended that the plaint disclosed a cause of action. He urged this court to restore the judgment of the learned Principal Judge.<br /> <br /> Mr. Musisi, counsel for the respondent, argued grounds 1, 5 and 6 first and grounds 2 and 3 last. He supported the decision of the Court of Appeal. It was his submission that the Court of Appeal reevaluated the evidence properly and came to proper conclusions. He alluded to the same passages in the judgment of Twinomujuni, JA, which were criticised by Dr. Byamugisha and submitted that those passages show that the Court of Appeal re-evaluated the evidence. He supported the action taken by the respondent. Mr. Musisi contended, and here I agree with him, that departure by Twinomujuni, JA, from the common method of considering grounds of appeal according to the order and or the words in which those grounds were formulated did not cause injustice. He argued that Justice Twinomujuni justified the approach he took, namely that issues in the grounds of Appeal were not clear.<br /> <br /> In my experience, it is not uncommon for an appellate judge or any appellate court to rephrase any grounds of appeal so as to make the subject of appeal clearer and bring into focus the issues canvassed before that appellate court. And this situation normally arises where the memorandum of appeal and arguments thereon are not coherent and concise.<br /> <br /> Ground one is concerned with issues and pleadings. Issues in the High Court, as a trial court, are framed by virtue of Order 13 of C.P. Rules. The provisions of Rule 1 of that Order set out guidelines in regard to framing issues. The Rule reads as follows:-</p> <blockquote><em>"1. (1) Issues arise when a material proposition of law or fact is affirmed by the one party and denied by the other.</em><br /> <br /> <em>(2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute a defence.</em><br /> <br /> <em>(3) Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue.</em><br /> <br /> <em>(4) ....................................................................................</em><br /> (5) <strong><em>At the hearing of the suit the court shall, after reading the pleadings, if any, and after such examination of the parties or their advocates as may appear necessary, ascertain upon what material propositions of law or fact the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend".</em></strong></blockquote> <p><br /> Clearly a trial court should frame issues from the pleadings of the parties. A trial court is required to frame and record issues on which the right decision of the case appears to depend. And in terms of Rule 5 of Order 18 of C.P. Rules,</p> <blockquote><em>"In suits in which issues have been framed, the Court shall state its finding or decision, with the reason therefor, upon each separate issue"</em></blockquote> <p><br /> As pointed out by Twinomujuni JA, the plaint was vague in alleging the facts which constituted the appellant's rights perceived to have been violated by the respondent. The relevant paragraphs of the plaint are paragraphs 7 to 12. At the risk of being lengthy, I am obliged to reproduce these paragraphs which were formulated as follows:</p> <blockquote><em>7. There are other cheques of the said joint account whose particulars the plaintiff does not have and which were not filled in by either the deceased husband or the plaintiff which, together with originals of annextures 'A' and 'B' the defendant falsely and maliciously on or before 4.9.1998 used to report to the police CID Jinja Road that the plaintiff had issued to the defendant false cheques and as a result of the said false and malicious report by the defendant, plaintiff was arrested by the police and charged with the offence of issuing a false cheque contrary to section 364 (1) (b) of the Penal Code Act. A photocopy of plaintiffs release on bond issued to her on 4.9.1997 and indicating the many times she has been put to inconvenience and expense reporting to police CID Headquarters in Kampala for bond extension is annexed hereto and marked 'E'.</em><br /> <em>8. By </em>a <em>letter dated 24.10.97 addressed to her by Mulenga &amp; Karemera, Advocates for the defendant, plaintiff learnt that the actual complaint to the police which led to plaintiffs arrest was this:</em></blockquote> <blockquote> <blockquote><em>"In or about July 1997 our client discovered that goods purchased by your company from our client had not been paid for as a result of the fraudulent concealment of your company's (sic) indebtedness by your late husband Mr. Tony Twinomugisha who was also our clients sic Chief Accountant. Our client further discovered a series of cheques issued by your company in purported settlement of your dues which had been receipted but were never banked and instead were kept aside by your late husband. When our client discovered and presented them for payment they were all dishonoured. According to our instructions you were signatory to all the cheques. </em><br /> <em>Upon full investigations our client found that your company was indebted in the sum of U.Shs. 40,631,849/= and demanded repayment of the same. On 18<sup>th</sup> August, 1997 the Administrator of the estate of your late husband paid to our client U. Shs. 10,000,000/ =. To date however the outstanding balance of Shs.30,631,849/= remains unpaid despite several reminders and demands by our client".</em></blockquote> </blockquote> <blockquote><em>The said <strong>words were falsely and maliciously reported </strong>and stated of the plaintiff by the defendant and are in their natural meaning defamatory of the plaintiff A photocopy of the said letter is annexed hereto and marked 'F'.</em></blockquote> <p>&nbsp;</p> <blockquote><em>9. The plaintiff does not and has never owned or been a member of a company called Tyresland (U) Ltd, the said company has never issued cheques to the defendant nor indeed has the plaintiff ever issued the cheques to the defendant for the consideration of any goods or her late husband's indebtedness or at all and the defendant's campaign and crusade against the plaintiff is for the purposes of extorting money against her and/or by use of the police and/or the police report and/or the threat of criminal arrest and prosecution and other similar unlawful means obtaining the sum of Shs.30,631,848/=from her.</em><br /> <em>10. After total despair, the plaintiff instructed advocates who addressed a letter dated 3.9.1998 to the defendant protesting its ctions as well plaintiff's innocence but defendant, by its advocates letter dated 11.9.1998, not only claimed that defendant had supplied goods to the plaintiff but also claimed that the plaintiff had admitted liability for the debt by making a part payment of Shs. 10,000,000/= </em><br /> <em>11. The plaintiff has had her constitutional rights curtailed and/or interfered with and has been exposed to public humiliation, odium and contempt by defendant's false and malicious report and she has suffered loss and damage and much anguish and distress.</em><br /> <em>12. Further, the plaintiff has so far reported to the police by reason of defendant's false and malicious report against her so far 28 times and every time she reports to police she uses her pick-up which she employs in her business and her other business is left unattended to and she has suffered loss and damage and will claim general and special damages as well as damages for abuse of the police in order to harm her, and for extortion and/or oppression".</em></blockquote> <p><br /> In response, the respondent filed its written statement of defence. By paragraph 1 thereof, the respondent denied every allegation contained in the plaint and which was not admitted. In so far as relevant, paragraphs 6 to 11 of the defence averred as follows:</p> <blockquote><em>6. Paragraphs 7 and 8 of the plaint are partly admitted as relates to the report to police and the letter written by M/s Mulenga &amp; Karemera Advocates. The defendant denies any malice or defamation in reporting to police and shall aver that the said actions were taken for the sole purpose of recovering the debts from the plaintiff through the supply of goods dating as far back as July, 1995.</em><br /> <em>7. Paragraph 9 is denied and the defendant shall aver in response that goods were supplied to the plaintiff in a shop in Kampala called Tyresland on Ben Kiwanuka Street which she and her agents acknowledged. Payment for some of the goods was always effected through cheques signed by the plaintiff and her late husband.</em><br /> <em>8. The plaintiffs late husband would from time to time give cheques to Florence Tiko with instructions to fill in a specified amount payable to the defendant.</em><br /> <em>9. Several cheques issued by the plaintiff were dishonoured and concealed by the plaintiffs husband who instructed his subordinate F. Tiko not to report the cheques to management.</em><br /> <em>10. Paragraph 10 of the plaint is admitted".</em></blockquote> <p><br /> It was on the basis of these pleadings that the learned Principal Judge framed the following issues:</p> <blockquote><strong>1. Whether the facts quoted in paragraphs 8</strong> <strong>of the plaint are correct.</strong><br /> <strong>2. If they are correct, whether they justified the defendants conduct of reporting plaintiff to police.</strong><br /> <strong>3. Whether the defendant conducted a campaign and crusade against plaintiff for purposes stated in paragraph 9 of the plaint.</strong><br /> <strong>4. Whether defendant's actions or conduct have caused loss or damage to plaintiff.</strong><br /> <strong>5. Whether plaintiff purchased goods from the defendant.</strong><br /> <strong>6. Whether plaintiff issued the cheques to the defendant in payment of the goods.</strong><br /> <strong>7. Whether plaintiff owes the sum claimed in the counterclaim to defendant</strong></blockquote> <p><br /> According to Order 13, issues are (in theory) framed by Court. However in practice issues are framed or agreed upon by counsel for parties where parties are represented as was the case in this case.<br /> <br /> In view of the contents of paragraph 6 of the written statement of Defence, I am a little puzzled that issue No.1 was framed as it is or at all. Indeed in view of paragraphs 6 and 7 of the defence, issues 1, 2 and 3 appear to have not been framed properly. Wasn't the issue here whether the words and conduct complained of amounted to defamation?<br /> <br /> Because of the provisions of Orders 13 and 18 alluded to earlier, I think that Mr. Justice Twinomujuni was perfectly entitled in his criticism of the framing of the issues. Furthermore, since evidence had been adduced and was available and as the Court of Appeal, as a first appellate Court, was required by Rule 29(1)(a) of the Rules of that Court, to re-appraise the evidence and draw its own inferences of fact, the leaned Justice of Appeal properly exercised his discretion when he decided to focus on two broad-issues namely:<br /> (a) whether the evidence disclosed a cause of action against the respondent and;<br /> (b) whether the counterclaim was established.<br /> <br /> <br /> Those were really the matters in dispute.<br /> <br /> With due respect, I am not persuaded by the arguments of learned counsel for the appellant that on the basis of the facts in this appeal, the approach adopted by Twinomujuni JA in considering and deciding the appeal was wrong, or caused grave, or, indeed, any injustice to the appellant. Nor do I accept the implication of the contention that the Court of Appeal did not study the record. At least in his judgment Twinomujuni JA. indicates he read the record and indeed the framing of ground one in this appeal implies this.<br /> <br /> In view of the evidence available, and with all due respect to both the learned Deputy Chief Justice and Kitumba, JA, I do not think the evidence was closer to establishing the tort of defamation. The traditional view of defamation is that defamation is the publication of a statement which tends to lower a person in the estimation of right-thinking members of society generally, or which tends to make those members of society shun or avoid that person: See <strong><em>Winfield on Tort. </em></strong>The tort of defamation consists in the publication of a false and derogatory statement respecting another person without lawful justification. On the basis of the pleadings and the evidence on the record, I do not agree that the respondent's Lawyers harassed or intimidated the appellant.<br /> <br /> <br /> There was a basis for the action taken by both the respondent and their lawyers. In his evidence Bishagenda Zachary, the coadministrator of the estate of the deceased, showed the appellant some of the dishonoured cheques which had been given to the respondents in payment for goods obtained from the respondents. The appellant said "signatures resembled hers". In her own evidence during cross-examination, she admitted that "all the cheques appear to bear my signature". Now if that is the position would it be unlawful for the respondent to demand of the appellant for her to honour those cheques. On compassionate and moral grounds, one may say that the respondents acted in haste. But this was a question involving a lot of business money, about shs.40m/= due to a business concern. The respondents needed the money for its business. Apparently they had to show that they were pursing the recovery of the debts before the respondent could be compensated by insurance. In these circumstances the respondent was entitled to do what it did. That was lawful. It was not anywhere near defamation since it was factual. For the foregoing reasons, I think that grounds 1, 2 and 3 should fail.<br /> <br /> I would dismiss this appeal with costs to the respondent here and below.</p> <p><strong><u>JUDGMENT OF MULENGA, JSC</u></strong></p> <p>I have read in draft the judgment prepared by my learned brother Karokora JSC and I agree that the appeal ought to fail. 1 concur with the orders he proposes.</p> <p><strong><em>Dated at Mengo this 24<sup>th</sup> day of April 2002.</em></strong></p> <p>&nbsp;</p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-2840f4e28ad583f393f63e48b4dc0365"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/supreme-court/2002/23/supreme-court-2002-23.rtf" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a>, <a href="https://old.ulii.org/system/files/judgment/supreme-court-uganda/2002/23/supreme-court-uganda-2002-23.pdf" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"><iframe class="pdf" webkitallowfullscreen="" mozallowfullscreen="" allowfullscreen="" frameborder="no" width="100%" height="600px" src="/sites/all/libraries/pdf.js/web/viewer.html?file=https%3A%2F%2Fold.ulii.org%2Fsystem%2Ffiles%2Fjudgment%2Fsupreme-court-uganda%2F2002%2F23%2Fsupreme-court-uganda-2002-23.pdf" data-src="https://old.ulii.org/system/files/judgment/supreme-court-uganda/2002/23/supreme-court-uganda-2002-23.pdf">https://old.ulii.org/system/files/judgment/supreme-court-uganda/2002/23/supreme-court-uganda-2002-23.pdf</iframe> </div> </div> </div> </div> </div> Mon, 27 Jul 2015 13:36:16 +0000 Anonymous 15740 at https://old.ulii.org Luwero Green Acres Ltd v Marubeni Corporation ((Supreme Court Civil Appeal No. 19 of 1995)) [1997] UGSC 2 (4 February 1997); https://old.ulii.org/ug/judgment/supreme-court/1997/2 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/contract-law" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Contract Law</a></li><li class="field-item odd"><a href="/tags/performance-contract" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Performance of contract</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p>IN THE SUPREME COURT OF UGANDA<br /> AT MENGO<br /> (CORAM: MANYINDO DCJ, ODER JSC AND KAROKORA JSC)<br /> <u>CIVIL APPEAL NO. 19 OF 1995 </u><br /> BETWEEN<br /> LUWERO GREEN ACRES LTD………………………………………… APPELLANT<br /> AND<br /> MARUBENI CORPORATION ………………………………………RESPONDENT<br /> (Appeal from the Judgment of High Court of Uganda at Kampala (Mr. Justice W.K.M. Kityo) dated<br /> 9/8/94<br /> in<br /> Civil Appeal No. 14/95)<br /> <u>JUDGMENT OF KAROKORA JSC </u><br /> &nbsp;</p> <p>This is an Appeal against an Exparte Judgment and Decree on appeal of the High Court of Uganda at Kampala dated 9th August, 1994 in which he allowed the appeal and set aside the Judgment and Decree of the Chief Magistrate.<br /> <br /> The brief facts as can be gathered from the record were that by an oral agreement between the parties, the appellant supplied poles to the respondent on various dates at a cost of Uganda shs. 20,000/= per pole and upon each delivery, the respondent paid 85% of the value of the pole retaining 15%.<br /> <br /> By the end of the contract, the appellant had supplied a total of 2525 poles valued at shs. 50,500,000/= of which 85%; that is shs. 42,925,000/= had been paid and 15%; that is shs. 7,575,000/—<em> </em>had been retained as agreed between the parties to be paid at the end of the contract.<br /> <br /> At the end of the contract, out of the shs. 7,575,000/—<em> </em>retention, the respondent paid shs. 3,075,000/= leaving unpaid balance of shs. 4,500,000/=.<br /> <br /> The appellant demanded for the unpaid balance of shs. 4,500,000/= but the respondent refused to pay it as a result of which the appellant filed a suit for the recovery of that amount under Summary Procedure Order 33 of the Civil Procedure Rules.<br /> <br /> The respondent successfully applied for leave to appear and defend. In the written Statement of Defence, the respondent denied interalia paragraphs 3 — 7 of the Plaint and in the alternative the respondent claimed that the 15% retention was to be paid to the appellant after the said poles had passed the final test and that 225 green poles were found short of the specifications and were therefore rejected, hence shs. 4,500,000/— being 15% retention thereof could not be paid.<br /> <br /> After full hearing, the Learned Chief Magistrate found for appellant and the respondent appealed to the High Court. When the appeal came up for hearing, the appellant and his Counsel were absent and the respondent was permitted to proceed ex—parte. The Learned Judge allowed the appeal with costs in the High Court and in the Chief Magistrate’s Court, hence this appeal. Six grounds of Appeal were framed, to wit:<br /> <br /> (1) &nbsp;&nbsp;&nbsp;&nbsp; That the Learned Trial Judge erred in law and failed in his bounden duty as the first appellate Court when he merely read the lower Court record without re—appraising it and reaching his own conclusions;<br /> <br /> (2) &nbsp;&nbsp;&nbsp;&nbsp; That the Learned Judge erred in law when he imported into his judgment the contents of an affidavit accompanying an application for leave to appear and defend and relied on the same;<br /> <br /> (3) &nbsp;&nbsp;&nbsp;&nbsp; That the Learned Trial Judge erred in law and fact when he held that there was a written agreement between the parties;<br /> <br /> (4) &nbsp;&nbsp;&nbsp;&nbsp; The Learned Judge erred in law when he accepted submissions on the fourth ground of appeal and considered the same submissions in his judgment when the ground of appeal offended Order 39 r (1) (2) of Civil Procedure Rules;<br /> <br /> (5) &nbsp;&nbsp;&nbsp;&nbsp; That the Learned Judge erred in Law when he held that Section 90 of the Evidence Act applied to the contract between parties;<br /> <br /> (6) &nbsp;&nbsp;&nbsp;&nbsp; The Learned Judge misdirected himself on the burden of proof in Civil cases.<br /> I wish to point out from the start that both parties or their Counsel relied solely on written submission and therefore in deciding this appeal I shall rely on the record of appeal and written submission of both Counsel.<br /> <br /> Dealing with the 1st ground of Appeal, I must state that it is now settled that the duty of the first appellate Court is to reconsider and evaluate the evidence and come to its own conclusions bearing in mind, however, the fact that it never saw the witnesses as they testified. See <u>R v Pandya (1957) EA 336, Selle V Associated Motor Boat Co (1968)<br /> EA 123, James Nsibambi v Lovinsa Nank</u><u>ya (1980) HCB 81, Ephraim Ongom </u><u>Od</u><u>ong and Anor v Francis Binega D</u><u>onge C.A. No. 10/1987 (U/SC) unreported. </u><br /> <br /> In the instant case it is noted throughout the judgment on pages 148, 149 &amp; 150 that the Learned Judge based his judgment and conclusion on the affidavit sworn by Inagaki on behalf of Respondent in support of an application seeking leave of the Court to appear and defend the suit brought under Summary Procedure Order 33 of Civil Procedure Rules (CPR), where there was an affidavit and the Annexture to that Affidavit. Throughout his judgment he is referring to the affidavit and the annexture to that affidavit, but then the law is that if the court grants leave to the defendant to defend the suit, the affidavit forms part of the record but it is never evidence in support of the defence which has to be adduced before the Court in the ordinary manner.<br /> <br /> The Court of Appeal for Eastern Africa in <u>Hassanah Issa &amp; Co v </u>Jeraj Produce Stores (1967) EA 555 while dealing with an Affidavit filed in support of an application seeking leave by the defendant to appear and defend a suit brought under Summary Procedure (similar to the instant case) which the Magistrate and the Judge on Appeal had taken into account, had this to say at page 559 (per Sir Charles Newbold, P):<br /> <br /> “Having dealt with this preliminary point of jurisdiction, I turn now to consider the question raised on the appeal. With respect to the Judge of the High Court and the Resident Magistrate, in my view they have both completely misunderstood the legal position in a case where a Plaint is brought upon a bill of exchange They have further misunderstood the law relating to whether the Court hearing a case can refer to any affidavit filed in interlocutory proceedings in that same case. As I have said, the suit was filed under 0.37, it being a suit upon a cheque which was dishonored. Under that Order the Plaintiff is entitled to enter judgment unless the defendant obtains leave to defend; and he must apply to a judge for that leave. In that application the defendant files an affidavit setting out the various matters and if the resident Magistrate or the Judge is of the view that the affidavit raises triable issues, then the resident Magistrate or Judge grants leave to defend, which leave may be granted either unconditionally or conditionally. Having obtained leave to defend, then the affidavit upon which that leave was granted remains, of course, upon the record but is in no circumstances evidence in the case itself. The defendant having obtained leave files his defence and the proceedings then continue in precisely the same way as if the suit had not been filed under that particular Order.”<br /> <br /> Order 35 of the Tanzania Civil Procedure Rules is similar to our Order 33 of CPR.<br /> <br /> In the instant case, there is no doubt that the Learned Judge on appeal heavily relied on the affidavit sworn in support of the application, seeking leave to appear and defend the suit brought under the Summary Procedure and the Annexture “A”, when these were not introduced as evidence in the suit itself. In my view, if the defendant wanted to rely on these (affidavit and Annexture A) as his evidence, it ought to have introduced them in evidence when it was testifying before Court to prove its case. It was therefore erroneous on the part of the Learned Judge when he imported and heavily relied on the Affidavit and the Annexture “A” thereto at page 150 of the record/judgment line 9 to 19 when he held:<br /> <br /> “Furthermore, it is noted that in support of appellant’s application for leave to appear and defend this suit, that is, i.e. a suit filed under the provisions of<br /> Order XXXIII of the CPR, as a Summary Proceedings, the appellant continued to supply and receive or acknowledge payment, made in accordance with the stated terms — see the supplied in Annexture ‘A — J!• Therefore, the claim for payment of the whole price on the delivery had never been agreed upon among the terms and the Magistrate ought to have held so.”<br /> <br /> With respect, I think in the above passage the Learned Judge was relying on the affidavit sworn in support of the application for leave to appear and defend the suit, which affidavit and annexture A — J were not part of the defence evidence in the main Suit. In fact, in cross—examination, DWI conceded at page 45 line 30 — 35 that:<br /> <br /> “It is true that the contract between Plaintiff and the defendant was oral. It is true that the contract was oral to our benefit to guard against the time— wastage”.<br /> <br /> Then on page 46 line 27 he stated:<br /> <br /> “The poles would not be trimmed unless they complied with our specifications. The cutting is done under the supervision of our staff. It is also true that the plates were fixed after trimming.”<br /> <br /> Therefore, following the above evidence, if the Learned Judge had reconsidered and evaluated the evidence as the first appellate Court and subjected it to a fresh and exhaustive scrutiny as required of him, see <u>Pandya v R </u>(supra) <u>Selle v Associated Motor Boat Co. </u>(supra) he would not have come to the conclusion he came to that there was written agreement setting out terms of contract. Therefore in view of the above and in view of the admissions by DWI at page <em>45 </em>lines 30 — 35 of the record of the proceedings of the appeal, that the contract between the appellant and respondent was oral, I think that the Learned Judge was not correct to hold that there was a written contract between the parties. Therefore, in my view, Section 90 of the Evidence Act which excludes Oral evidence from being admitted, if it seeks to vary the contents of the agreement, would not be relevant here, when there was no written agreement governing their transaction.<br /> <br /> The provision of Section 90 of the Evidence Act reads in part as follows:<br /> <br /> “When the terms of contract or of grant or other disposition of property, have been reduced to the form of a document, and no evidence save as mentioned in Section 78 of this Act, shall be given in proof of the terms of such contract<br /> except the document itself or Secondary evidence is admissible…”<br /> <br /> Clearly, therefore, from the entire evidence on record, the contract between the parties was not written. It was an Oral Contract and as such, Section 90 of the Evidence Act was wrongly invoked by the Learned Judge. This, therefore, disposes of grounds 1, 3 and 5 which must succeed.<br /> <br /> I must, however, deal with whether or not there was evidence to prove that the appellant supplied 2525 poles to the respondent. It was not disputed by DWI that 2525 poles were supplied by the appellant. Respondent conceded through DWI that 2525 poles were supplied to them, but argued that only 2300 poles complied with their specification. It was further argued for respondent that shs. 42,925,000/= paid was 85% down—payment on delivery of the poles.<br /> <br /> However, it is noted from Annexture I to the plaint that by 13/3/93 the appellant had delivered a total number of poles amounting to 2525 and the respondent had paid a total amount of shs. 42,925,000/= which was 85% of the total number of poles delivered at shs. 20,000/= per pole, less 15% retention. The 15% retention on 2525 poles at shs. 20,000/= each would leave a balance of shs. 7,575,000/=, unpaid. There was evidence that the poles had been supplied when they were green. They were dried, trimmed and marked with number plates by the respondent, which according to DW1’s admission, on page 46 line 27 of the record of the proceedings, meant they had complied with respondent’s specifications and therefore had been accepted by the Respondent.<br /> <br /> I think that it would not be just and fair to permit the Respondent to say that 225 poles had not met their specification in Annexture A to the affidavit in support of an application for leave to appear and defend the Suit brought under Order 33 of C.P.R., after the poles had been accepted and altered by trimming them to suit their requirement. Once the poles were trimmed, thus accepted, the contract was complete and poles became the property of Respondent. The sum of shs. 42,925,000/= was very well above 85% of 2300 poles each at shs. 20,000/=. In other words 85% of 2300 poles each at shs. 20,000/=, would come to shs. 39, l00, 000/= and 15% retention on those poles would be shs. 6,900,000/=.<br /> <br /> There is no where it was indicated that in the number of deliveries that 2300 poles were delivered. Annexture A — I disclosed that 2525 poles were delivered and accepted and that 85% thereof paid, amounting to shs. 42,925,000/=. The balance of 15% on the total number of poles delivered of 2525 would leave a balance of shs. 7,575,000/=. Instead of the balance of shs. 7,575,000/= to the appellant, the Respondent paid shs. 3,075,000/= on 15/4/93 as reflected on the Summary of Wooden Poles supplied, where it is stated that 2300 poles had been supplied, whilst the total number of poles supplied as on 13/3/93 (see Annexture I) was 2525 poles.<br /> <br /> There was evidence that all the 2525 poles had been supplied and received, dried, trimmed and marked with respondent’s numbers, which meant that the pies had been accepted. It appears from the evidence that the respondent unilaterally decided to retract/revoke the contract by paying shs. 3,075,000/= on allegation that only 2300 poles had been supplied. Appellant demanded the balance of shs. 4,500,000/= from the respondent on the ground that he had supplied 2525 poles but not 2300 poles.<br /> <br /> No doubt, the appellant had supplied 2525 poles to respondent and the respondent had received them and accepted them. When he dried, trimmed and marked them with their numbers, the contract was complete and therefore, the respondent could not retract the<br /> Contract on the ground that they had had excess poles. In my considered view since the appellant had supplied the poles and respondent had received them and altered their state, when they trimmed them according to their needs/requirement, they would not be permitted to withdraw or refuse to pay for all the poles supplied.<br /> <br /> That disposes of all the remaining grounds of appeal, which also succeed.<br /> <br /> In the circumstances, therefore, I would allow this appeal with costs here and in the Courts below. I would set aside the Judgment and Order of the Learned Judge on Appeal and substitute them with an Order dismissing the Appeal and confirming the Judgment and Orders of the Learned Chief Magistrate.<br /> <br /> Dated at Mengo this 5<sup>th</sup> day of Feb l997.<br /> &nbsp;</p> <div>A. N. Karokora<br /> <u>JUSTICE OF SUPREME COURT. </u><br /> &nbsp;</div> <p>5/2/97. Mr. B. Babigumira for the Appellant<br /> &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Mr. Ocheng Charles for the Respondent<br /> &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Mr. Emma Manana Court clerk<br /> &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;<br /> Judgment delivered as directed by the Hon. JJSC.<br /> &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</p> <p><br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> &nbsp;</p> <p><u>JUDGEMENT OF ODER, J.S.C.</u><br /> &nbsp;</p> <p>I have had the benefit of reading in draft, the judgment of Karokora, J.S.C. I agree with him that the appeal should succeed.<br /> <br /> I have nothing useful to add.<br /> <br /> Dated at Mengo this 5<sup>th</sup> day of Feb 1997.</p> <p>&nbsp;</p> <p>A.H.O. ODER<br /> <u>JUSTICE OF THE SUPREME COURT.</u><br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <u>JUDGMENT OF MANYINDO, D.C.J.</u><br /> &nbsp;</p> <p>I read the judgment of Karokora, J.S.C. in draft. I agree with it and as Oder, J.S.C also agreed the appeal is allowed the judgment of Kityo, J allowing the appeal set aside and an order dismissing the appeal substituted therefore. The appellant shall have their costs of this appeal and in the courts below.<br /> <br /> DATED at Mengo this 5<sup>th</sup> day of Feb 1997.</p> <p>&nbsp;</p> <p>S. T. MANYINDO<br /> <u>DEPUTY CHIEF JUSTICE</u></p> <p>&nbsp;</p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-aa3e9af18942bad68e31e834ab2d2b07"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/supreme-court/1997/2/supreme-court-1997-2.rtf" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Mon, 27 Jul 2015 13:34:34 +0000 Anonymous 15562 at https://old.ulii.org Arconsuit Architects v A. Baumann (U) Ltd ((93 of 1993) ) [1994] UGSC 5 (8 November 1994); https://old.ulii.org/ug/judgment/supreme-court/1994/5 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/civil-procedure" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Civil Procedure</a></li><li class="field-item odd"><a href="/tags/appeals-and-reviews" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Appeals and reviews</a></li><li class="field-item even"><a href="/tags/contract-law" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Contract Law</a></li><li class="field-item odd"><a href="/tags/performance-contract" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Performance of contract</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p><u>IN THE SUPREME COURT OF UGANDA<br /> AT MENGO </u><br /> (CORUM: MANYINDO, D.C.J., ODOKI, J.S.C., TSEKOOKO, J.S.C.,) <u>CIVIL APPEAL NO. 23 OF 1993 </u><br /> BETWEEN<br /> ARCONSUIT ARCHITECTS::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT<br /> AND<br /> A. BAUMANN (U) LTD :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT..<br /> (Appeal from Judgment and Order of sigh Court at Kampala (Kireju J) dated 25<sup>th</sup> June, 1993.)<br /> IN<br /> <u>CIVIL SUIT NO. 404 OF l992.) </u><br /> <br /> &nbsp;</p> <p><u>JUDGMENT OF TSEKOOKQI J.S.C. </u><br /> The appellant is a firm of architects. The Respondent is a limited liability company and proprietor of building situated on Plot No, 7 Parliament Avenue, Kampala.<br /> <br /> &nbsp;</p> <p>The appellant sued the respondent in the High Court claiming for US $14156 or its equivalent in Uganda Shillings alleged to be due for Professional Service rendered pursuant to a contract made between the appellant and the respondent, on 6<sup>th</sup> March, 1989.<br /> <br /> &nbsp;</p> <p>The facts as found by the learned trial Judge and as gathered from the proceedings are these. The respondent desired to make vertical extension on the main Office block of the said building by addition of an extra floor. The respondent also desired to convert two rear car parking blocks into Offices. I will hereinafter refer to the two sets of buildings as main office block and the car shed respectively.<br /> <br /> &nbsp;</p> <p>The respondent o 6/3/1989 appointed the appellant to execute the architectural work on the jobs (see Exh P.1). The two jobs were treated as two contracts. The jobs involved securing from the Kampala City Couni1 (KCC) the planning permission, the building construction permission, the drawing of requisite documents (drawings) and supervision of the buildings. The two parties held discussions on 24<sup>th</sup>, 27<sup>th</sup> and 28<sup>th</sup> February, 1989, prior to appointment of the appellant as architects. The agreed position was reduced into writing on l/3/1989 (see Exh Dl). During those discussions, it was agreed that the respondent would pay the appellant by way of fees a certain percentage of the (estimated) project cost.<br /> <br /> &nbsp;</p> <p>The appellant secured from KCC the planning permission drew the requisite drawings for construction and secured KCC approval for building construction in respect of vertical extension on the main office building and paid the appellant for its architectural work in respect thereof.<br /> <br /> &nbsp;</p> <p>The respondent was unable to proceed with construction work on the car shed. According to the evidence of DW2 (Ronnie Anglezarks Richardson) construction work on car shed did not proceed because</p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-b7f353eed821eeb7d4f29461718e96ab"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/supreme-court/1994/5/supreme-court-1994-5.rtf" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Mon, 27 Jul 2015 13:32:22 +0000 Anonymous 15297 at https://old.ulii.org Aziz Kalungi Kasujja v Naune Tebekanya Nakakande ((Civil Appeal No.63 Of 1998)) [1998] UGSC 6 (25 March 1998); https://old.ulii.org/ug/judgment/supreme-court/1998/6 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/contract-law" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Contract Law</a></li><li class="field-item odd"><a href="/tags/formation-and-validity-contract" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Formation and validity of Contract</a></li><li class="field-item even"><a href="/tags/contract-formation" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Contract Formation</a></li><li class="field-item odd"><a href="/tags/performance-contract" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Performance of contract</a></li><li class="field-item even"><a href="/tags/specific-performance" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Specific Performance</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p>. <strong><u>THE </u></strong><strong><u>REPUBLI</u></strong><strong><u>C OF</u></strong><strong><u> UGANDA</u></strong><strong><u> </u></strong><br /> <strong><u>IN THE</u></strong><strong><u> SUPREME COURT OF UGANDA </u></strong><br /> <strong><u>AT MENGO </u></strong><br /> <strong><u>CIVIL APPEAL 63/95 </u></strong><br /> <strong>(CORAM KAROKORA. </strong><strong>J.S.C.</strong><strong> </strong><strong>MULENGA</strong>. <strong>J.S.C. </strong><strong>AND KANYEIHAMBA. J.S.C</strong><strong> </strong><br /> <strong>BETWEEN</strong><br /> <strong>AZIZ KALUNGI KASUJJA…………………………………..APPELLANT<br /> AND<br /> NAUNE TEBEKANYA </strong><strong>NAKAKANDE </strong>………………………<strong>RESPONDENT<br /> (</strong>Appeal from Judgment<strong> </strong>of the High Court of Uganda<br /> <strong>(Hon. Justice G.M. Okello</strong><strong> in</strong> <strong>Civil Suit No. 625 of</strong><strong> 1984.) </strong><br /> <strong><u>JUDGMENT OF KANYEIHAMBA </u></strong><strong><u>.J.</u></strong><strong><u>S.</u></strong><strong><u>C.</u></strong><strong><em><u> </u></em></strong><br /> This is an appeal from a<strong> </strong>Judgment of the High Court<strong> </strong>in Civil Suit No. 625 of I 984 against the findings, ruling and orders of Mr.<strong> </strong>Justice Okello. By consent of the parties,<strong> </strong>the appeal was to be determined by way of written submissions under r.97 of the Rules of SC.<strong> </strong>Counsel for<strong> </strong>the respondent was served<strong> </strong>with a<strong> </strong>Record of<strong> </strong>Appeal on<br /> 29/12/95.<br /> On the 10<sup>th</sup> January 1996.<strong> </strong>Counsel for the appellant filed a written<strong> </strong>statement of argument in support of the Appeal in accordance with rule 97.On 22<sup>nd</sup> May 1997, the Registrar of the Supreme Court received a letter<strong> </strong>from the same Counsel, informing Court that his clerk had failed to serve a<strong> </strong>copy of the written submission to Counsel or respondent. Consequently, he requested (that<strong> </strong>under the circumstances he had no alternative but to<strong> </strong>abandon and withdraw the written submission, and intimated that instead he<strong> </strong>would argue the appeal orally.<br /> The appeal was fixed<strong> </strong>to he heard on 2/1O/97<em>.</em><em> </em>When court convened on that day both, parties where represented by counsel. Mr. Zaabwe.and Mr.kawenja respectively.<br /> Mr. Zaabwe addressed and informed<strong> </strong>us that following his last communication<br /> <strong>1 </strong><br /> to court, the appellant,Mr.Juma Kasule had since died and Counsel wished to make the application by way of notice of motion to court to substitute the names of the<br /> deceased with that<strong> </strong>of Aziz Kasujja who is<strong> </strong>one of the personal representatives permitting Mr. Aziz Kasujja to be substituted for the plaintiff was produced to the satisfaction of the court. Counsel for the respondent addressed court and indicated that he had no objection to the application for substitution of the appellant being granted. The court granted the order as applied for.<br /> After an adjournment of thirty minutes to enable counsel prepare themselves, the hearing<br /> After an adjournment of<strong> </strong>thirty minutes to enable Counsel prepare themselves, the hearing of the appeal resumed. Counsel for the appellant addressed Court and said that he had decided in withdraw his letter of 22<sup>nd</sup> May 1997<strong><em>,</em></strong><em> </em>in which he had withdrawn written submission with the intention of arguing orally in Court. He now sought leave of Court to reinstate his written statement of argument for the appeal and to ask Court to allow Counsel for the respondent enough tine in which to prepare and file a written statement of defence for the respondent. The application for leave was made under rule 1 (3<em>). </em>Counsel for the respondent informed Court that he had no objection to the application. Counsel having assured Court that he could serve his written statement of arguments to respondent on 2/10/97, the Court granted the application and ordered counsel for the appellant to serve the written statement of argument on that day. Counsel for the respondent was ordered to submit the written statement of defence by the 16/10/97. This written statement was received by the Registrar of the Court on 14<sup>th</sup> <strong> </strong>October 1997 and, this Judgement is based on the<strong><em> </em></strong>written statements of both Counsel; the record of the proceedings and judgment in the Court be low.<br /> The background to this appeal is<strong><em> </em></strong>briefly as follows For all intents and purposes the appellant and respondent grew up together as brother arid sister with the latter, a much younger person than the former. Until differences of opinion occurred between them is apparent from the evidence and pleadings that both had lived together amicably and shared most things including some of the parcels of land they acquired together from time to time. The facts show that over a period of years parcels of land were<strong><em> </em></strong>acquired by the two persons and registered or recognised as owned either jointly or individually. Tue cordial relationship between the appellant and defendant stretched back to the late 1930’s, and it is only in tire 1970’s and later that differences of opinion developed.<br /> In 1984 the respondent as plaintiff, through her<strong> </strong>Counsel, filed Suit No. 625 of 1984 in the High Court seeking a declaration that certain lands registered or acquired while she lived with appellant, then as defendant, either belonged to her as a beneficiary and should vest in her as sole owner or were jointly owned and she sought an order of Court to sever her interest in each of those parcels of land so that it may invest in her solely as owner, She also asked for mesne profits from appellant for some of the properties he had been<strong> </strong>renting for cash at Shs: 5,000 p. a. as from the year 1978. The appellant resisted these claims with counter claiming ire that as a result of a purported letter by the respondent, he was entitled to the whole of the land registered in their joint names by virtue of that letter which offered an exchange of that the land if he permitted the respondent to own, wholly and beneficially one valuable parcel of land situated at Makindye. After hearing the parties and witnesses and having examined all the relevant titles arid documents and lead Counsel’s submissions, the learned Judge delivered judgment which resolved the issues between the parties as follows: -<br /> <br /> a) That the land mentioned in<strong> </strong>paragraph 4 of the plaint shall be partitioned in equal shares between the plaintiff and the defendant.<br /> b) That the defendant would be entitled as sole owner and beneficiary to all the parcels of land mentioned in paragraph 6 of the plaint.<br /> c) That the plaintiff would be entitled to retain the valuable Makindye holdings as sole owner arid beneficiary, and<br /> d) The parties were to bear their own respective costs.<br /> <br /> It is against this ruling and orders that the appellant who was the defendant in the high court suit appeals to this court. The grounds of the appeal are set out in the memorandum of appeal and appear on page 3 of the record of proceedings. There are six grounds of appeal. However an analysis of the six grounds reduces to two.<br /> the issues to be considered by<strong> </strong>this Honourable Court. These are whether the learned Judge erred in law and fact in holding that the plaintiff was entitled to a half share in the lands comprised in paragraph 4 of the plaint and, whether her the learned Judge erred in law in refusing, to hold that the defendant was entitled to an order of specific<strong> </strong><br /> performance on the evidence alone of the letter of plaintiff represented as exhibit D.<strong> </strong>15<strong> </strong>which issue must be joined<strong> </strong>with ground 4 of the appeal. Once ground one of the<strong> </strong>appeal is resolved then grounds<strong>. </strong>2, 3 and <em>5 </em>follow the decisions reached<strong> </strong>on that ground.<br /> <br /> In attempt to prove ground one of the appeal, Counsel for the appellant argued at great length and cited several authorities to show that since the plaintiff was a liar in her testimony to the Court, she should be held to have written the letter which purports to offer an exchange of land between the parties, Counsel’s arguments and citation of what he deems to be relevant authorities covers some sixteen pages of typed wordage. I can find no relevancy whatsoever for the proposition that the letter written by the plaintiff created a binding contract between her and the defendant as argued in the High Court. It may be true that the plaintiff did write the letter in question. Counsel for appellant cities<strong> </strong>a<strong> </strong>number of cases<strong> </strong>including<strong>, </strong><strong><u>R.G</u></strong><strong><u>. Patel V.</u></strong><strong><u>Lalji Makanji (1957)</u></strong><u> </u><br /> <strong><u>E A. </u></strong><strong><u>317</u></strong><strong><u> Khatijabhai Jiwa Hasham V Zenab (1957) E.A 38 and Pope vs R (1960) E.A 132</u></strong><strong>_</strong><strong><u> </u></strong>All along Counsel argued that these cases<strong> </strong>support the appellant’s case.<strong> </strong>Unfortunately, I can find<strong> </strong>none, either on the facts or on the principles they established as propositions for allowing this appeal. They were all<strong> </strong>decided on different facts<strong> </strong>and criteria and, while some of<strong> </strong>them do indicate that a<strong> </strong>Judge should take into<strong> </strong>account contradictory statements or be cautious of witnesses<strong> </strong>lying in Court, they do not<strong> </strong>support the appellant.<strong> </strong>In the words of Connell, J.<strong> </strong>in Khatijiabhai_Jiwa <u>Hasham</u><u> V.</u><strong><u> </u></strong><u>Zenab </u><strong>_</strong><u>2 E A.</u><strong><u> </u></strong><u>38 </u><u>at P.54</u> “The falsehood shall he considered in weighing the evidence, it<strong> </strong>may be so glaring as utterly to<strong> </strong>destroy confidence in their witness altogether.<strong> </strong>But when there is reason to believe that the main part of the deposition is true, it should not be arbitrary rejected because of want of veracity on perhaps some minor point.Infact in this particular case, no minor point arises for which it could be said there is support for appellant.<br /> <br /> Even<em> </em>if we were to believe Counsel that the plaintiff wrote the letter, this does not prove in any way that there was a contract between the parties to exchange the land in question. The appellant did not show in the High court nor does he do so now that he accepted the offer allegedly made by lire respondent. The letter was dated 5<sup>th</sup> August 1972. The only reference available to suggest hint the appellant accepted the offer is the written statement of defence filed in the High court on 30/08/84 .It cannot be seriously contemplated that an offer made in 1972 for the transfer of land was eventually accepted more than ten years later and Court<em> </em>should sanction such a fiction The submission of Counsel for the respondent that the burden of proof lies upon the person who wants Court to believe the existence<strong> </strong>of certain facts is correct. They cannot be inferred from any alleged falsehood by a witness who is testifying on an entirely different matter.<br /> In any event<strong>, </strong>once it is shown that there was no agreement or contract to exchange the parcels of land in dispute, the question of whether or not the respondent wrote the letter becomes irrelevant. Therefore, the appeal fails on the first ground.<br /> As already indicated, once the first ground fails, grounds 2, 3 and 5 of the Memorandum of Appeal also fail. The arguments and authorities contained in pages 17-34 of the written submissions for the appellant are superfluous. The cases cited in these pages suggest that the parties therein attempted to avoid valid and legally competent transactions whereas there was none between the appellant and the respondent in this case. Counsel for the appellant on pages 26 of his written statement in support of the appeal draws an analogy from the principle that circumstances in the conduct of the parties may establish a binding contract between the parties. He cites such authorities as <u>National and Grindlays Bank v Kentiles (1966) E.A 17, Credit Finance corp. Ltd v Ali Mwakasanga (1957) E.A 79 Brogden v Metropolitan Railway Co.(1972) 2 Ac,66 and Figueriredo v Moorings Hotel (1960) E.A 926</u> in support I am grateful to Mr.Zaabwe for having cited all these cases almost in full fact by fact with long extracts from their Lordships Judgements.However it will be noted that each of these cases is clearly distinguishable from the facts and circumstances of this appeal. Page 17 of the written statement in support of the counsel.<br /> <br /> <br /> Counsel is at<strong> </strong>pains to show that the series of letters v. written by the respondent. requesting for money to<strong> </strong>be paid for land or acknowledging receipt<strong> </strong>of such <strong>;, </strong>constitutes a<strong> </strong>pattern of behaviour that proves that a contractual relationship<strong> </strong>in<strong> </strong>the parties exists.<strong> </strong>However,<strong> </strong>it<strong> </strong>will be recalled<strong> </strong>that for all the land owned or otherwise by the parties, it was<strong> </strong>always the appellant who<strong> </strong>handled or used the money<strong> </strong>to purchase<strong> </strong>the same<strong> </strong>and the evidence alluded to from page 17 reply confirms<strong> </strong>this admitted relationship. Consequently, the authorities cited do 1<sup>st</sup> the appellant in any way. I therefore agree with Counsel for the respondent c written statement of arguments in support of’ the appeal does not disclose any to be admitted for the purposes of allowing the appeal. Indeed. Mr.<em> </em>Kawenja for respondent is right when he states on page 5 of his written statement arguments respondent that the appellant fails to show why he believes the learned Judge in ordering the demarcation and division of land which was registered in the names of tire appellant and respondent.<br /> <br /> The sixth ground of appeal, the argument that the Judge erred in law it refusing to specific performance of the contract is not convincing. It is borne out neither by facts of this case nor the arguments of the counsel nor is it supported by any law concluded that there was no contract between the parties for the transfer of it follows that the learned was correct in refusing to order an act of specific performance. To do so would be enforcing a non-existent contract for the transfer of land.<br /> <br /> Passing. it may be said that tire whole thrust of this appeal is nothing more than an expedition. Counsel for the appellant ought to have advised appellant that there<strong> </strong>was need than to<strong> </strong>impute a contract through the alleged or actual falsehoods of respondent Counsel might<strong> </strong>have assisted the court better by<strong> </strong>being selective of authorities and only extracting the relevant and applicable dicta. By throwing in every thing<strong> </strong>that seemed plausible without carefully asssessing its relevancy arid applicability, and by leaving it court more or less to choose and select<strong> </strong>whatever might be authoritative. Counsel for the appellant was inviting court to accompany him on this expedition. Court will not and cannot do so. I have carefully read the<strong> </strong>judgment of the learned Judge in the High Court and I find no fault with it. This appeal cannot succeed. It is dismissed with costs to the respondent.<br /> <br /> Dated at Mengo this 26<sup>th</sup><strong> </strong><strong> </strong>day of March 1997.<br /> <strong>G. W. KANYEIHA</strong><strong>MB</strong><strong>A</strong><br /> <strong><u>JUSTTCE OF </u></strong><strong><u>THE SUPREME COURT</u></strong><u>. </u><br /> <strong>I CERTIFY THAT THIS IS A<br /> TRUE COPY OF THE ORIGU’AL.<br /> W. </strong><strong>MASALU - MUSENE</strong><br /> <strong><u>REGISTRAR. THE SUPREME COURT. </u></strong>–<br /> <br /> <strong><u>JUDGMENT OF KAROKORA, J.S.C. </u></strong><br /> I have had the benefit of reading in draft the judgment of Kanyeihamba J S. <strong>C </strong>, and do agree that the appeal must be dismissed with costs to respondent.<br /> The facts are clearly set out at page 3 of the draft judgment of Kanyeihamha J. S. C. I therefore, do not have to repeat them here. Suffice, however, to say that Plots referred to<strong> </strong>paragraph 4 of the plaint were alleged to have been jointly purchased and registered in the names of both the appellant and respondent as joint tenants. The respondent claimed that these Plots add up to 43 acres. The Plots which appear in paragraph 6 of the plaint are registered in the names of the appellant. However, the respondent claimed that she had jointly purchased those Plots with the appellant but claimed that the appellant had fraudulently registered them in his own names as the owner. She prayed for an order that the plaintiff gets half share of Plots in paragraphs 4 &amp; 6.<br /> <br /> The appellant denied having purchased Plots of land comprised in paragraph 6 of the plaint jointly with the respondent.<br /> At the trial, the learned trial Judge ordered that the Plots enumerated in paragraph 4 of the plaint be partitioned in equal shares between the respondent and appellant whilst the Plots enumerated in paragraph 6 of the plaint belonged solely to appellant.<br /> The appellant was not satisfied with the order of the Court and hence this appeal.<br /> There were six grounds of appeal which shall be considered in the manner I am going to handle them.<br /> The first ground complained that the trial Judge had erred in law and fact in that he accepted that the plaintiff’s evidence that she did not write and sign Exh.D15 and that by doing so, he failed to appreciate the fact that the weight and bearing of the plaintiff’s falsehood and other evidence indicated that she wrote and signed it.<br /> The learned Counsel for appellant dwelt o-n this ground in his written statement of arguments, citing several authorities which I (lid not find useful or relevant. It must be noted that Exh.D15 was put in by appellant. The respondent had denied having written and signed it. The onus in such case was on the appellant to adduce evidence to prove that it had been written and signed by respondent. It is the principle of law in our law of evidence Act, Section 100, that: -<br /> <em>“Whoever desires any Court to</em><strong><em> </em></strong><em>give</em> <em>judgment as to any legal right or liability dependent on</em><em> the existence of facts which he asserts must </em><em>prove</em><em> that those facts exist.</em><br /> In this case there was no evidence adduced to pin down the respondent that she had written and signed the Exh. D15. The onus was the appellant to adduce expert evidence (handwriting expert) to state that the handwriting and signature, appearing on Exh. D15 was of respondent. The submission by Mr. Zaabwe, Counsel for the appellant was that had the Judge carefully compared the plaintiff’s signature, he would have come to a different conclusion.<br /> With due respect, the trial Judge, not being a witness and moreover an expert witness on handwriting, his comparison of the handwriting and signature on Exh.D 15 with respondent’s samples would not help appellant’s case. In any case, the onus was on the appellant to request for handwriting. samples of respondent to be compared with the signature on Exh.D15, which, with respect, he never did.<br /> Further, Mr. Zaabwe, Counsel for appellant dwelt on the issue of falsehood in the paternity of the parties, which respondent had never denied, and as such, the Court ought not to have believed the respondent. n my considered view, considering the evidence which emerged during the course of the trial, respondent had grown up together with the appellant in the same home more or less as sister and brother. In our African cultural setting, it would not be out of the ordinary for appellant to call respondent loosely as brother.<br /> <br /> In any ease, even if that was false on the part of respondent and had never been denied by respondent, that was falsehood which did not touch on the land transaction which is-subject matter of this appeal as the dispute of land has-no relevance to the paternity of respondent and the appellant.<br /> It must be observed that the land covered by paragraph 4 of the plaint is registered in the names of the appellant and respondent as joint tenants. The title deed of the Plots specifically state that both the appellant and respondent are joint tenants. I do think that there is any- amount of oral evidence that would change the status quo, unless there was evidence, which was not adduced, that the appellant was holding the other half on behalf and for the benefit of the respondent in which case the respondent would be entitled to trace the other halves of each of the Plots from the trustee. In my view, the theory of appellant having been a trustee, holding the land for respondent would not be correct, because if the respondent was then a minor, how come that she was registered for the other halves. Why were these Plots in paragraph 4 of the plaint not registered in the names of the appellant as a trustee for the benefit of the minor?<br /> In my view, in the absence of evidence that the appellant was a trustee for the benefit of the respondent, I think Section <em>56 </em>of the Registration of Titles Act would leave the land in the names of the persons appearing on the title deed. No amount of oral evidence or other evidence according to Section 90 of the Evidence Act would change proprietorship of the Plots referred to in paragraph 4 of the plaint.<br /> Section 56 of Registration of Titles Act (RTA) provides as follows: -<br /> <em>“No Certificate of</em><em> </em><em>title</em><strong><em> </em></strong><em>issued upon an applicati</em><em>on </em><em>to bring </em><em>land under this Act</em><strong><em> </em></strong><em>shall </em><em>be</em><strong><em> </em></strong><em>im</em><em>peached</em><em> or</em><em> </em><em>defea</em><em>sible</em><strong><em> </em></strong><em>by reason </em><em>or </em><strong><em> </em></strong><em>account</em><em> </em><em>of any </em><em>informality</em><em> or irregularity</em><em> in </em><em>the </em><em>application</em><strong><em> </em></strong><em>or </em><em>in th</em><em>e </em><em>proceed</em><em>i</em><em>ngs</em><em> pre</em><em>vious</em><strong><em> </em></strong><em>registration of the</em><em> certificate and certificate of title issued under any of the previous</em><em> here in contained shall be received in all courts as evidence…………….and shall be conclusive evidence that the person named in such certificate as the proprietor of or…………………………….is seized or possessed of </em><em>such </em><em> estate</em><strong> </strong><em>or interes</em><em>t.”</em><br /> However, notwithstanding the above provision, any Certificate of title will be null and void if there is evidence that it was obtained by fraud. Section 76 of RTA is an authority for the above proposition. It provides as follows: -<br /> <em>“Any Certificate of title</em><em> </em><em>…………………………processed or</em><em> </em><em>made by fraud shall be made by fraud shall be void as against all parties or privies to such fraud.” </em><br /> Furthermore, Section 90 of the Evidence Act provides as follows: -<br /> <em>“When the term</em><em>s of a contract or of grant or of any other </em><em>disposition or property, have been</em><em> reduced to the form of a document and in all cases in which any </em><em>matter</em><em>, is required by law to be reduced to </em><em>the form of a</em><em> </em><em>document</em><em> no evidence save as </em><em>mention</em><em>ed in </em><em>Section</em><em> 78 (of </em><em>the Evidence Act</em><em>,) shall be </em><em>given</em><em> </em><em>in proof of the terms of such a contract</em><em>, grant or </em><em>other </em><em> </em><em>disposition of </em><em>property</em><em>……….. except th</em><em>e document itself</em><em>.”</em><br /> It<em> </em>must state that since there was no evidence of fraud on the part of respondent regarding the acquisition of Plots referred to in paragraph 4 of the plaint, each of the ties must get half of each of the Plots enumerated in that paragraph. Therefore, und one of appeal must fail.<br /> On the 2 ground of appeal where <em>it </em>is alleged that the trial Judge erred in law when he held that there was no evidence to prove that the evidence on record established clearly that the respondent wrote and signed Exh.D 15<em>, </em>1 must state that I have already covered this ground during the process of discussing the first ground.<br /> It is, however, necessary that I comment on the counter-claim and failure by the respondent to reply to it and the effect of that failure to do so.<br /> 1 do agree that under Order 8 r 18(5) of the Civil Procedure Rules (CPR) where facts raised in the counterclaim are not denied by the plaintiff they would be presumed “to have been admitted.”<br /> <br /> However, in the instant case, there were no facts pleaded in the counterclaim as was required of him under Order 8r.8, which would require the appellant to reply to the counterclaim. In any case, it is clear from the record of Appeal on page 13, that the reply to the counterclaim was filed in Court on 5/9/84, but this does not appear in the record of appeal. The record of appeal was prepared by the appellant who ought to have ensured that all relevant documents were included in the record of appeal. It cannot therefore be said that the counterclaim was not denied.<br /> I would in view of the above say that there is no merit in the second ground of appeal.<br /> <br /> On 3<sup>rd</sup><strong> </strong><strong> </strong>ground of appeal, where the learned trial Judge was criticized as having erred in law in rejecting Exh.D15 as forming a basis of contract of exchange between the respondent and appellant when the evidence on record indicated that there was such a contract, I must state that there was no evidence on record to support any finding o there having been a contract of exchange of land between appellant and respondent. I have already adequately dealt with Exh.D15. The onus was on the appellant to prove that Exh.D15 had been written and signed by plaintiff/ respondent. This is especially so when the respondent denied ever writing and signing it. In my view the learned trial Judge was correct in his finding when he rejected Exh, D I 5 as forming a contract of exchange of 37 1/2<strong> </strong>acres of land.<br /> It was not clear whether not the 37 1/2 acres of land were the land forming land in paragraph 4 of the plaint or those which were falling in paragraph 6 of the plaint.<br /> In my view, Exh.D15 was so vague that it could not form a basis of a legal binding contract so as to vary the proprietary rights in the Land either referred to in paragraph 4 of the plaint or paragraph 6 of the plaint.<br /> In the circumstances, I think this is a case where status quo in the suit land must be maintained. Accordingly, this ground would fail.<br /> Turning to 5<sup>th</sup> and 6<sup>th</sup> ground, which I shall discuss together, I must point out that I have already discussed these two issues while dealing with the 1 ground. I do not find it necessary to repeat what I have stated therein. The Certificate of title is conclusive evidence of ownership of the Plots referred to in paragraph 4 of the plaint, unless fraud was proved on the part of the registered proprietor, which was iot proved. On the issue of specific performance, the issue would not arise, when there was no evidence on the balance of probabilities that the respondent had written and - signed the agreement of exchange of land between the appellant and respondent. Exh.D15. Accordingly therefore these two grounds would fail.<br /> In the circumstances, this appeal has no merit and must be dismissed. As Kanyeihamba, J. S. C., and Mulenga, J. S. C., also agree the appeal is dismissed with costs to respondent here and in the Court below. The orders of the High Court are confirmed.<br /> Dated at Mengo this 26<sup>th</sup> day of March 1998.<br /> <strong>A. N. KAROKORA</strong>,<br /> <strong><u>JUSTICE OF THE SUPREME COURT </u></strong><br /> <br /> <strong><u>JUDGMENT OF MULENGA. J. .S.C.</u></strong><br /> This appeal was brought to this Court by .JUMA MUNYWANI KASULE, who subsequently died. By order of this Court made in Civil Application No. 27/97, on 2/10/97, AZIZ KALUNGI KASUJJA, one of the personal representatives of the late Juma Munywani K<!-- char 0xe4 --> sule with written consent of the other personal representatives, was made a party, in place of the deceased, as the Appellant. In this judgment I shall refer to the late Juma Munywani Kasule as “Kasule” and the Respondent Nauni Tebekanya Nakakande as “Nakakande”.<br /> By a plaint dated 17<sup>th</sup><strong> </strong>July 1984, Nakakande sued Kasule in respect of 15 Plots of land, situate at diverse places in Kyaggwe County. Nakakande and Kasule were registered proprietors as joint tenants of nine of the plots totaling 43 acres. Kasule was registered sole proprietor of the other six Plots totaling to 39 acres. I shall refer to the former as the “9 Plots” and the latter as the “6 Plot”. All the land was held in Mailo tenure. In the plaint it was claimed that Nakakande and Kasule being sister and brother had in their young days acquired all the land together, but while the 6 Plots were registered in their joint names, Kasule who had handled the transactions had fraudulently caused himself to be registered as sole proprietor of the 6 Plots. Nakakande claimed that the 6 plots, having been purchased with money from a common fund, were held by Kasule as trustee and that she was joint beneficial owner thereof. It was also claimed that Kasule had been collecting rent and rates from tenants without accounting. Nakakande therefore prayed for:<br /> (a) An order that she was entitled to half share in all the land<br /> (b) Alternatively a declaration that the 9 plots be her own property and Kasule takes the 6 plots as his share<br /> (c) The Court to divide the land between the parties equitably.<br /> (d) Mesne profits at the rate of Shs. 5,000 per year from 1978 till judgment.<br /> In his Written Statement of Defence and.Counter Claim, dated 28/8/84 and filed in Court on 30/8/84, Kasule generally denied Nakakande’s claims and in particular contended (a) that the 6 Plots belonged to him alone and (b) that there had been a settlement between the two whereby it was mutually agreed that Nakakande would “take the valuable holding at Makindye”, and Kasule would take 37’/2 acres of tie land under joint ownership. He counter-claimed for an Order that Nakakande transfers to him the land under joint ownership.<br /> The learned trial Judge did not grant any of the prayers by either part’. He virtually maintained the status quo ante save that he made an Order (more or less applied for as an afterthought) “severing the joint tenancy” by partitioning the 9 Plots between Nakakande and Kasule in equal shares. He held that the 6 Plots were owned by Kasule alone and that there had been no agreement between the two for Nakakande to exchange her share in the 9 Plots for the customary holding at Makindye. The learned Judge ordered each party to bear his/her costs. Kasule appealed on the following six ground.<br /> <em>“1. That the learned Judge erred in law and fact i</em><em>n that he accepted the plaintiff’s evi</em><em>dence that sh</em><em>e did not write and sign Exh. D15 and that</em><em> by doing so he failed to app</em><em>reciate the fact that the weight</em><em> and bearing of the plainlff’s falsehoods and o</em><em>ther evidence indicated that she</em><em> wrote and signed it.<br /> 2. That the learne</em><em>d .Judge erred in law in that he held </em><em>there was no evi</em><em>dence to prove that the plaintiff wrote and</em><em> signed Exh. D15 when </em><em>the evidence </em><em>on record established clearly that the </em><em>plaintiff</em><em> </em><em>w</em><em>rote and signed it.<br /> 3. That the learned Judge erred in law in that he rejected Eh. D15 as a contract of exchange between the plaintiff and defendant when the evidence on record indicated that there was such a contract.<br /> 4. That the learned Judge erred in law in that he held that a contract of exchange did not exist becaus</em><em>e of failure to execute a trans</em><em>fer </em><em>in</em><em> </em><em>favour of the defendant and yet this was not accord with the law of Uganda.<br /> 5. </em>‘ <em>That the learned .Judge erred in law and fact in that he held that the<br /> plain</em><em>ti</em><em>ff was entitled to a half share in the land comprised in paragraph 4 of the plaint and that by so doing he failed to correctly evaluate the evidence on record which indicated the </em><em>contrary.</em><strong><em> </em></strong><br /> <em>6. That the learned Judge erred in law in that he held that the defendant was not </em><em>entitled to specifi</em><em>c</em><em> performance of Exh. D15 when evidence on record clearly established that he was so entitled</em><em>.”</em><br /> “Land comprised in paragraph 4 of the plaint” mentioned in fifth<em> </em>ground is the 9 Plots. The first ground of appeal attacks credibility of Nakakande and together with the following three grounds is concerned with the alleged contract of exchange and the evidence (Exh. D15) adduced to prove it. Although the fifth ground on surface appears to be an attack on the trial Court finding that Nakakande was entitled to half share in the 9 Plots, its main thrust, is also the complaint that the Court ought to have found that her half share in the 9 Plots had been exchanged for the land at Makindye. The sixth ground is on the remedy but also in respect of the counter-claim. There is no cross-appeal by Nakakande on any holding.<br /> Mr. Zaabwe, Counsel for the Appellant submitted to this Court written submissions in which he argued the six grounds of appeal seriatim. Mr. Kawenja, Counsel for the Respondent, did likewise in his reply. I shall not follow their order of dealing with the grounds because in my view it entails a lot of unnecessary repetition. 1 shall consider the appeal on the issue of credibility first. Next I will consider the appeal in regard to the alleged contract of exchange.<br /> <br /> Mr. Zaabwe opened his lengthy argument on the first ground of appeal ith the following assertions:<br /> <em>“The plaint</em><em>iff</em><em> (Nakakande,) told court </em><em>a lot of lies. Had </em><em>the learn</em><em>ed</em><em> Judge appreciated the </em><em>weight</em><em> and bearing </em><em>of those li</em><em>es on falsehood</em><em>s and other evidence on the record, he would </em><em>certainly</em><em> </em><em>have</em><strong> </strong><em>come</em><em> to the conclusion that </em><em>the plaintiff wrote and signed Exh. D15”.</em><br /> He went on to list several falsehoods Nakakande allegedly told the Court and in conclusion invited this Court to re-evaluate her evidence on the ground that though the learned trial Judge appreciated that she told lies to Court, he did not appreciate that that fact showed that she also lied when she said she did not sign Exh. Dl 5. It appears to me that the underlying complaint in this ground of appeal is that the learned trial Judge accepted part of Nakakande’s evidence when he should have discarded all of her evidence because of the falsehoods in it.<br /> <br /> In his judgment the learned trial Judge expressly disbelieved Nakakande on three assertions she made in her evidence in Court. On her assertion that Kasule was not her brother the learned Judge held: “ I am inclined to believe that the plaintiff and the defendant are brother and sister. They were the children of Asuman Lukwalira”. On her denial in evidence that she had not instructed her lawyers that her father was Asuman Lukwalira the learned Judge held:<br /> <em>“there is no way these lawyers could have got that fact other than from her </em>“.<br /> The more material assertion expressly disbelieved is in regard to the source of funds for the acquisition of the land in issue. Nakakande claimed in evidence that she provided the funds, having got some from a Muzungu and the rest from trade. The learned Judge’s finding is in the following passage from the judgment.<br /> <br /> <em>“That is a matter o</em><em>f credibility. But the plaintiff</em><em>’s (Nakakande ‘s) own evidence regarding her source of income t</em><em>hen is not convincing. She testifi</em><em>ed that a Muzungu had left Shs. 1</em><em>5,000 in her name in a Post Offi</em><em>ce</em><em> Savings Account. </em><em>Apa</em><em>rt from that assertion, there wa</em><em>s no evidence to </em><em>verify</em><em> that</em><em> claim.</em><br /> <br /> <em>The </em><em>plain</em><em>tiff further testif</em><em>ied</em><em> that her second source of income then was her export business. She used to export </em><em>Mangoes</em><em> to Kenya. 7his was between 1939 and 1940 when</em><em> she was about </em><em>6 years old. This stat</em><em>ement sounds more of a joke than real. It</em><em> is</em> <em>incredible that a child of 6 years can engage </em><em>in</em><strong><em> </em></strong><em>an international trade. It</em><em>’s</em><em> the money from these sources that plaintiff </em><em>claimed she gave to the defendant,</em><strong><em> </em></strong><em>as her agent to</em><strong><em> </em></strong><em>buy </em><em>for her</em><strong><em> </em></strong><em>land. I find </em><em>the plaint</em><em>i</em><em>ff</em><em>’s</em><strong><em> </em></strong><em>story incredible……………there is no credible evidence that the plaintiff (Nakakande) gave money to the defendant (Kasule) to buy lands for her.</em><em> </em><br /> <br /> There is other material evidence of Nakakande which the learned Judge, without saying so expressly, disbelieved or at the very least ignored. I will only mention two examples. Although in her plaint Nakakande averred that -Kasule had acquired and was joint tenant<strong> </strong>with her of the 9 Plots, in her evidence she categorically asserted that she was sole owner of those Plots having bought the land with only her own money and that Kasule had caused himself to be registered as joint tenant with her through fraud. The learned trial Judge made no specific finding on this assertion. However, he must have disbelieved it because he held that her entitlement of the 9 Plots was in accordance with the certificates of title, namely as joint tenant with Kasule. Secondly Nakakande averred in her plaint that the 6 Plots registered in the names of Kasule alone were bought with money from the common fund and that she was entitled to half share thereof In her evidence however she also categorically asserted that the Plots Were also bought with her own money and that Kasule had made no contribution: She had given him money to purchase the land for her but he had fraudulently caused himself to be registered as sole proprietor of that land. The learned Judge held, as already noted above that there was no credible evidence that Nakakande had given money to Kasule to buy land for her and then continued:<br /> <em>“H</em><em>ence the </em><em>land mentioned</em><em> in</em><strong><em> </em></strong><em>paragraph 6 of the plaint</em><em> is</em><em> not held by th</em><em>e defendant in trust for plaintiff as the beneficiary</em><em> The lands in question are </em><em>registered</em><em> in (‘his,,) sole name. Without evidence of the existence of trust, the certificate</em><em>s of title are conclusive eviden</em><em>ce</em><em> of (his</em><em>) sole ownersh</em><em>ip of’ those lands. The plaintiff is </em><em>therefore</em><em> not entitled to those lands……..”</em><br /> <br /> “Land mentioned in paragraph 6 of the plaint” are the Plots. In her evidence in Court Nakakande also made substantial departures from the prayers she had made in the plaint produced above. In respect of the 9 Plots she had this to say: -<br /> <em>“I pray that the court orders the removal of the defendant’s name wrongly p</em><em>ut </em><em>on the title of my land</em><em>.</em><em> I </em><em>will </em><em>not be satisfied</em><em> </em><em>i</em><em>f the land was divided equally between me and the defendant• because the defendant never contributed to the purchase money of these lands.” </em><br /> And in respect of the 6 Plots, she said: -<br /> <em>“As for the lands which are wrongly registered in the </em><em>defendant‘s</em><em> name, I pray that the titles be cancelled and the lands be registered in my name. I would not be satisfied </em><em>with</em><strong><em> </em></strong><em>the Court ordering equal division thereof because these are </em><em>my</em><strong><em> </em></strong><em>land alone”.</em><br /> In the judgment the learned trial Judge did not have much to say on the falsehoods and/or departure from pleadings. In regard to the parentage of Nakakande he said: -<br /> <em>“The plaintiff might have lied on the issue of</em><em> </em><em>paternity. But</em><em> that</em><strong><em> </em></strong><em>did not mean that </em><em>she had parted with her interest</em><em> in the </em><em>lands </em>mentioned<em> in paragraph 4 (Exh. P1).” </em><br /> As noted earlier the learned Judge also commented on the evidence regarding Nakakande’s source of finds. He described that evidence as incredible, being more like a joke than real. On basis of that he held as a fact that Nakakande, contrary to what she said in her testimony, did not give money to Kasule for purchase of land for her. That holding notwithstanding the Court upheld her interest in the 9 Plots without question as to how she funded the purchase thereof. I would not pursue that point further however since it has no-t been appealed. Suffice to say that this tends to support the criticism that the evidence was not subjected to such evaluation as it was supposed to be. Indeed, on analysis of the judgment, it becomes apparent that what was considered and determined upon was almost solely the evidence on the counterclaim as if the main suit itself was not before Court for determination. It may well be that the learned Judge was swayed by the way Counsel presented their respective clients’ cases, and in particular by the way Nakakande’s Counsel, in his final address to Court, appeared rightly or wrongly to steer away from her case as presented in her evidence. Presumably upon recognition that he had no other “cogent” evidence to support Nakakande’s evidence that all the land had been bought with her money alone and therefore belonged to her and that Kasule had fraudulently got himself registered is<strong><em> </em></strong>joint tenant in respect of the <em>9 </em>Plots and sole proprietor in respect of the 6 Plots,<br /> Counsel left the plaint un-amended and in the final address said he would “leave this to Court.” In my view where Counsel throws in the towel, as in the instant case, it still remains incumbent on the Court to pronounce itself on the evidence adduced (or absence of it) on material issues in controversy. In this case no specific holding was made on Nakakande’s claim as pleaded on the 6 Plots or as presented in her evidence on both the 9 Plots and 6 Plots. In that regard I have considered whether the omission constituted a mistrial warranting an order for retrial, notwithstanding the fact that Nakakande did not appeal. However, after taking into account the contradictions in, and general weakness of Nakakande’s evidence as well as her fundamental departures from pleadings, I am satisfied that her contention that Kasule was registered on any of the titles fraudulently and her claim of sole beneficial ownership of all the land in issue would have to fail. An order for retrial is therefore unnecessary.<br /> On the first ground of appeal, I would agree with Mr. Zaabwe only to the extent of the criticism that the learned trial Judge did not sufficiently evaluate the evidence of Nakakande to give due weight to its falsehoods. The main thrust of the ground however relates to the alleged contract of exchange to which I shall turn presently. In conclusion on the question of creditability, I am inclined to the view that Nakakande as a witness, in view of the foregoing observations was not one a reasonable Court would place reliance on. I am satisfied however that the learned trial Judge did not base any finding on her testimony. He relied on the certificates of title. I do not find it necessary to review the very many precedents elaborately cited and summarized by Mr. Zaabwe in his written submission. This is, in my view, a clear case where, without saying that everything Nakakande testified was false, her testimony was not relied upon, and therefore the question of whether her testimony was severable (which is what the precedents are about) does not arise. I now turn to the question of the alleged contract of exchange.<br /> <br /> The principal contention in this appeal is that the learned trial Judge ought to have upheld Kasule’s counter-claim that it was he, who was beneficial owner of the whole land in question by virtue of an exchange contract evidenced by Exh. D15.<br /> <br /> According to Counsel for the appellant the learned trial Judge made the following errors in that regard:<br /> (a) He wrongly held that there was no evidence to prove that Nakakande wrote and signed Exh. D15.<br /> (b) He held on wrong grounds that there was no exchange contract between Nakakande and Kasule.<br /> The submissions of’ learned Counsel for the appellant raise two principal questions to be answered in this appeal: - -<br /> (a) Was there adequate evidence on which the trial Court could have held that Exh. D15 was made and signed by Nakakande?<br /> (b) Was there sufficient evidence on which the trial Court could have held that there was a valid contract of exchange binding the parties?<br /> <br /> In his submissions Mr. Zaabwe strongly attacked the learned trial Judge [‘or relying n<br /> Nakakande’s<em> </em>denial of writing and/or signing Lx h. D 15 holding that it was not proved to be her document.<br /> First, with due respect to Counsel, I think he took the matter out of context. Although in discussing the issues, the learned trial Judge entered to Nakakande s denial a<strong> </strong>couple of times, he did<strong> </strong>not use the denial per se, a evidence or basis for holding that<strong> </strong>Exh. DI<strong> </strong>5 was not made or signed by Nakakande.<strong> </strong>The context in which the denial was viewed was in regard, to the burden of proof. Time burden was on Kasule to prove that Exh. D15 was made and signed by Nakakande. Since she denied the document, other evidence had to be adduced by Kasule to provide the proof’ his context is evident in the judgment. The learned Judge, while discussing issue No. I said: -<br /> <br /> Later when discussing issue No 4 he reiterated:<br /> “<em>I</em><strong><em> </em></strong><em>hav</em><em>e already discussed that letter Exh. D15 earlier in his </em><em>Judgement</em><em> rejected it as it as it did not constitute</em><em> a contract which binds the plaintiff because there was no satisfactory evidence to pin the plaintiff as the author thereof.”</em><br /> I am satisfied that the learned trial Judge refused to uphold Exh. D I 5 as document binding on Nakakande not so much because she denied it but essentially because there was no evidence proving that she wrote and/or signed it.<br /> <br /> Secondly, in my view, Mr. Zaabwe virtually conceded, in his written submissions, that there was no direct proof that Exh. Dl <em>5 </em>was Nakakande’s document. This was in the course of his argument that Exh. Dl 5 was admitted by default. The following passage from his written submissions is self explanatory.<br /> <em>In</em><em> the first place, t</em><em>h</em><em>e defendant</em><strong><em> </em></strong><em>pleaded Ex</em><em>h.D</em><em>15 in </em><em>hi</em><em>s written statement of defence </em><em>and counter</em><em>-</em><em>c/a</em><em>im.</em><em> </em><em>T</em><em>he plaint</em><em>if</em><em>f did not deny </em><em>his </em><em>letter or s</em><em>t</em><em>ate </em><em>that</em><em> s</em><em>he did not write or sign</em><em> i</em><em>t</em><em>, </em><em>because she did</em><strong><em> </em></strong><em>no</em><em>t </em><em>repl</em><em>y </em><em>to</em><strong><em> </em></strong><em>the counter</em><em>-</em><em>c</em><em>l</em><em>a</em><em>im</em><strong><em>. </em></strong><em>I invite</em><strong><em> </em></strong><em>thi</em><em>s Court </em><em>to find as</em><strong><em> </em></strong><em>a </em><em>fact that the </em><em>plaintiff’s failure to file a reply</em><em> </em><em>to the</em><strong><em> </em></strong><em>counter-claim</em><strong><em> </em></strong><em>an</em><em>d</em><em> </em><em>specifically denied writing and signing Exh.D15 the defendant would have sought expert opinion on the handwriting and signature of the plaintiff on Exh. D15. (emphasis added).</em><strong><em> </em></strong><br /> I shall return to that argument presently. I have first to emphasize here that learned<br /> Counsel resorted to the argument because lie recognized that there was no or<br /> any evidence adduced to prove that Nakakande authored the letter Exh. D5 Neither<br /> Kasule nor any of his witness saw her write it.<br /> Learned Counsel contended, in his written submissions that Kasule as a brother to Nakakande “knew very well (her) handwriting and signature.’’ This however, was not founded on any evidence at all. Kasule did not testify that he knew or was familiar with, the handwriting and signature of Nakakande and nobody else did iii evidence. Counsel’s said contention therefore was sheer conjecture.<br /> I now turn to the argument as produced above. In my view it is not sustainable on two accounts. First, I am not persuaded that there was no reply to the counter-claim. Counsel himself acknowledged in his submission that there is an official endorsement on the Court file duly signed by the Deputy Registrar to the effect that a reply to<br /> <br /> Counter-claim was filed on 5/9/94. He however contended that he was never served with a copy of the reply. IC indeed no copy was served on Counsel for the defendant, I am inclined to assume that this was through error. And if, as Counsel Further contended in the submission, the original was not found on the Court file when he was compiling the record of appeal I would be more prepared to assume that it was misplaced or otherwise lost rather than assume the official endorsement on the Court file is false. Secondly the argument was not canvassed at the trial; aor did Counsel seek leave to this Court to raise the point on appeal. The Court have consistently held that ordinarily, a party will not be allowed to raise a point on appeal which could have been raised but was not raised in the Court below. (see: T<u>an</u><u>gan</u><u>yika Farmers Vs. Unyamwezi </u>(1960) EA 620; <u>United Marketing Co. Vs. Hashan Kara </u>(1963) BA 276 <u>Warehousing Forwarding Co. Vs. Jaferali &amp; Sons Ltd. </u>(1963) <u>BA 385 and Visran &amp; Karsan Vs. Bhatt, </u>(1965) BA 789). Needless to say that if the argument had been canvassed at the trial, the trial Court would have been in a better position than this court, to determine whether or not there was a Reply to the Counter-Claim and whether or not Exh. Dl <em>5 </em>was expressly denied or implicitly admitted. In the circumstances I would not entertain the argument that Exh. D I 5 should be deemed o maybe been admitted. Accordingly I would hold that the learned trial Judge did not err n holding that there was no proof that Nakakande wrote or signed Exh. Dl 5. In my view therefore the first and second grounds of the appeal ought to fail.<br /> Although in his submissions on the third, fourth, fifth and sixth grounds of appeal Mr. Zaabwe attempted to argue that there was sufficient evidence, independent of Exh. D 15, proving that a contract of exchange binding on both parties was constituted, the arguments kept revolving around the contents of Exh. DI 5. In a nutshell Exh. D I5 is letter, in which allegedly Nakakande undertook to leave her interest in the 0 Plots to Kasule in exchange to the Kibanja at Makindye which Kasule was asked to pay for. the English translation of the letter reads as follows: -<br /> <em>108/72<br /> Dear brother Juma .M.Kasule<br /> I have written in a hurry. I do not want you to worry about the matter of our land and the property thereon. As you decided to which I have been complaining, I have decided to leave you with 371/2 acres with all that is there. Come and pay the bal</em><em>a</em><em>nce of shs.950/= </em><br /> <em>Signed Nakakande Tebekenya Nauni</em><br /> <br /> Mr. Zaabwe contended in the submission that the letter amounted to an offer by Nakakande to exchange her interest in the Plots owned jointly for the Kibanja at Makindye, which offer Kasule accepted by payment of the amount requested for. 1-le concluded that constituted the contract of exchange and that payment by Kasule amounted to part-performance of the contract. He criticized the trial Court for holding that the contract of exchange was not proved because no transfer of Nakakande’s interest had been executed.<br /> With due respect to Counsel, I think that once again he took the learned Judge’s remarks on absence of transfer out of context. The point was discussed twice in the judgment. First when the learned Judge was considering issue No I he observed that the alleged contract of exchange was made in 1972 without any transfer being executed and added:<br /> <em>‘</em>if<em> </em>there <em>was such agreement, </em><em>either of the parties would have taken steps to ensure that the transfer was executed. This was not done. As the certificates are still in the joint names………………………..it is conclusive proof of their joint ownership of those lands</em><em>(s.56 RTA)</em><br /> Later when considering issue No. 3 the learned Judge had this to say:<br /> <em>“</em><em>1 h</em><em>ave already discussed the above issue earlier in this judgment. I had rejected that issue of the contract. I still do not agree with the argument. The plaintiff denied the letter Exh. D15 which is the basis of the alleged contract to exchange.</em><br /> <em>She denied that she signed the letter. There was no evidence to satisfactorily pin that the handwriting on the letter Exh. D15 was by the plaintiff. Further no transfer was executed by the plaintiff in favour of the defendant. </em><em><u>This casts doubt on the alleged agreement to why no step was taken during all this time to have the transfer executed in favour of the defendant”</u></em><em><u>(emphasis added</u></em><br /> The learned trial<em> </em>Judge gave two reasons for not accepting that a contract of’ exchange had been made. The first in that Exh.D I5 was not proved to have been authored by Nakakande. The second was that Failure to execute a transfer by Nakakande in Favour of Kasule “cast doubt’’ on existence of such contract of exchange. It was therefore, incorrect to say, as alleged by Zaabwe that the reason why the learned Judge held there was no contract of exchange was “<u>because of the f</u><u>act </u><u>that</u> <u>no </u><u>transfer was</u><u> executed’’</u>. That fact only cast a doubt in the learned Judge mind (as it does in mine) on the existence of the alleged contract no doubt the learned Judge had in mind the evidence on record that Kasule had long experience of registration of transfer of land title and must have known that in order for him to become the sole proprietor of the Plots which were jointly owned, he would have to obtain from Nakakande a executed in his favour. It was therefore legitimate for the learned Judge to wonder as he must have, why, if there had been such contract of exchange, Kasule had not insisted on getting the transfer from Nakakande for over 1 2 years and had got<strong> </strong>round to make the claim<strong> </strong>Court only after he was sued. This consideration however was not the basis of the court conclusion. It was<strong> </strong>in addition to the<strong> </strong>finding that the alleged was not proved through<strong> </strong>Exh. D 15 or otherwise<strong>. </strong>The burden of proof was on Kasule to prove the contract of exchange. Nakakande added to the burden in her testimony in cross-examination<strong> </strong>when she explained why Kasule was to pay for the Kibanja at Makindye. She said<br /> “<em>I did not jointly with the defendant buy a Kibanja at Makindye. I bought it alone. I told the defendant to pay for the kibanja on my behalf. The money was from the rents from my houses which the defendant was collecting. Those houses were at Kitigoma, Jinja Road.”</em><br /> In view of this, it cannot be said without more that payment for the Kibanja at Makindye was in part performance of the alleged contract of exchange. I agree with the learned trial judge that there was no adequate proof that the parties entered into the alleged contract of exchange. I am therefore unable to hold that the learned trial judge erred in law or fact in this regard. In my view the third, fourth, fifth and sixth also ought to fail. Before concluding I am constrained to refer to a legal that was overlooked at the trial and in toe submissions or appeal, namely determination of action. In his submission Mr. Zaabwe obliquely referred to it, but not surprisingly he did not pursue it, as it obviously destroys his clients case. In the admission on he fourth ground he wrote:<br /> <em>“1 </em><em>submit </em><em>that execution of a transfer is not an element in the formation of the contract</em><em>. An agreement for the</em><em> exchange</em><strong><em> </em></strong><em>of land is</em><em> valid </em><em>despite the </em><em>fact that</em><strong><em> </em></strong><em>no transfer is executed. I </em><em><u>further</u></em><em><u> </u></em><em><u>submit</u></em><strong><em><u> </u></em></strong><em><u>apart</u></em><em><u> fro</u></em><em><u>m </u></em><em><u>limitation</u></em><strong><em><u> </u></em></strong><em><u>of action</u></em><em><u> failure to </u></em><em><u>take further </u></em><strong><em><u> </u></em></strong><em><u>steps to</u></em><strong><em><u> </u></em></strong><em><u>have </u></em><em><u>the transfer</u></em><strong><em><u> </u></em></strong><em><u>executed does not make th</u></em><em><u>e</u></em><em><u> transfer </u></em><em><u>v</u></em><em><u>oid. </u></em><br /> I counter claim Kasule sought to enforce a contract The alleged contract is said to have been entered into on or about l0/8/72. The counter-claim was filed in court on 30/8/84. That was more than 12 years after the agreement is supposed to be reached. There is scanty evidence as to what transpired after the alleged agreement. In examination-in-chief, Kasule did not indicate why there was no implementation of the alleged contract alter he made the payment. In cross examination he said that Nakakande refused without indicating when. This is what he said<br /> “We have agreed as brother and sister that the plaintiff takes the kibanja at Makindye when I remained with the lands. We agreed on this in 1970’s. She refused to come to me to have the lands transferred to my sole ownership and instituted this suit.”<br /> <br /> This to me that Kasule’s cause of action, if<strong> </strong>any, arose in the 1970’s when Nakakande refused to transfer her interest in the 9<strong> </strong>Plots which she had allegedly to exchange for the “holding” at Makindye. It follows therefore that when the claim was bought to Court on 30/8/84, the action was time-barred under a) of the Limitation Act. On that ground I would also have held as a matter of law that Kasule had no subsisting cause of action and his appeal on the counterclaim could not be sustained.<br /> In the result I find no merit in this appeal and would dismiss it with costs of the appeal to the Respondent. In my view the costs payable should include the expenses of partitioning the 9 Plots as ordered by the High Court.<br /> Date at Mengo this 26th day of March 1998.<br /> <strong>J. N.MU</strong><strong>LENGA </strong><br /> <strong><u>JUSTICE OF TH</u></strong><strong><u>E </u></strong><strong><u>SUPRE</u></strong><strong><u>ME COURT.</u></strong><strong> </strong><br /> <br /> &nbsp;</p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-b8abaace31973913511ea2baceeae0ef"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/supreme-court/1998/6/supreme-court-1998-6.rtf" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Mon, 27 Jul 2015 13:32:22 +0000 Anonymous 15319 at https://old.ulii.org