THE REPUBLIC OF UGANDA

IN THE  HIGH COURT OF UGANDA  HOLDEN AT MPIGI

CIVIL APPEAL NO. 24 OF 2017

(Arising from civil suit No. 008 of 2013)

CHRISTOPHER  BAMWEYANA ::::::::::::::::::::::::::::: APPELLANT

VERSUS

HERMAN BYANGUYE::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT

BEFORE:  HON. JUSTICE WILSON MASALU MUSENE

JUDGMENT

The appellant, Christopher Bamweyana, appealed to this Court  against the judgment and orders of the Chief Magistrate’s court dated 23/09/2016 in a claim of UGX 9,411,500/=.  The Respondent is Herman Byanguye, represented by M/s  Maiteki & Co. Advocates, while the appellant was represented by M/S Mujuzi, Alinaitwe and Byamukama Advocates.

The brief  background facts are

The appellant and Respondent entered into a business relationship where the Respondent supplied the Appellant with coffee beans at the cost of UG shs 10,885,200/= and he paid the Respondent Ug shs 1,473,700/=  on an understanding  to pay the balance at a later date.  The appellant contends that  he paid to the Respondent the balance of Ug shs 9,411,500/= while the Respondent denied having been paid the same by the Appellant.

The Respondent therefore instituted civil suit No.008 of 2013  against the Appellant for breach of contract and the Chief Magistrate, Mpigi Chief  Magistrates Court  found that the appellant breached  the contract and did not pay to the Respondent the balance of the money he ought to have paid and made judgment infavour of the Respondent and made  orders that the Appellant pays  UGshs 9,411,500/= in special damages, Ugshs 5,000,000/= in general damages, and awarded costs to the Respondent and hence this appeal.

The grounds of appeal were:-

1. The trial  Chief Magistrate erred in law and in fact when she failed to properly evaluate the evidence as a whole hereby coming to a wrong conclusion that the appellant did not pay the Respondent’s balance of Ugshs 9,411,500/=.

1. The learned  Trial  Chief Magistrate erred in law  and in fact when she declined to rely on the handwriting  experts report  basing on wrong reasons hence coming to a wrong conclusion.
2. The learned trial Chief  Magistrate erred in law and  in fact when she awarded excessive general damages to the Respondent.

As far as the first ground of appeal is concerned , counsel for the Appellant submitted that

The appellant called three witnesses who testified   having paid the respondent the balance of UG shs 9,411,500/=.  DW3  stated in his evidence that he found the plaintiff at the office of the cashier  while delivering the payment list and physically witnesses him receiving  UG shs 9,411,500/= which was in the denominations of ten thousand shillings and five  thousand shillings.  DW3  confirmed this in his cross examination that he delivered  payment lists,  that he also witnessed payment and he confirmed  that the money was in notes of Ug shs 10,000/= and 5000 and coins during re-examination and further that he  saw  the Respondent signing the payment vouchers.  The cashier handed over the money and the Respondent put the money in his shorts.  This was confirmed by the evidence  given by DW1 and DW2  however, the trial Magistrate  in her judgment held that the  DW2  and DW3  did not pay  the plaintiff. 

Counsel also invited  this court to consider the evidence of DW2, and DW1, the  Appellant.

Counsel for the appellant further  submitted that although the Respondent/Plaintiff denied  ever signing  the voucher, that a handwriting expert  report was produced which indicated that the respondent had signed the voucher. 

Counsel referred to the evidence of DW4,  Sebuwufu Eria,  who on page 16  of the proceedings gave an opinion that both sample signatures and documents  2 and 3  and the  queried signatures on document No. 1 is of the same person, the Respondent/Plaintiff. 

Counsel for the Appellant also criticized the decision of the  Lower court  that the Defendant(Appellant’s)  witnesses did not have employment letters from Appellant, without bearing in mind that the business of the Appellant was a rural business which did not require appointment letters.

Counsel for the Appellant concluded that the Plaintiff who was the sole  witness claimed that he was not paid  his balance and he never called any witness  to collaborate his claims or even prove that he ever demanded for his money and was not paid.  He added the learned Trial magistrate did not evaluate this evidence against that of the Defendant/appellant but only believe the Respondent.  Had the learned trial magistrate properly evaluated the evidence of the respondent and  against  that of DW1, DW2, DW3 and DW4, she would have come to a  different conclusion that the Respondent was paid his balance.

Counsel for the Respondent on the other hand submitted that the trial magistrate properly evaluated the evidence and found that there were entries which  showed that the  Respondent  was to be paid  UGX 9.4 million as balance.  He added that the trial  magistrate properly evaluated document  3708 dated  11.7.2012  and the entries therein and found that a balance of  UGX 9.4  million was  still owing to  the plaintiff for  24 bag of coffee.

Counsel for the Respondent added that the trial  magistrate studied voucher which was  tendered in Court  as exhibit D3.  It was a voucher number 489 and a duplicate copy dated 15/7/2012.  He added the Magistrate properly  found out that the Plaintiff’s name  entered against the item coffee  and figure  Ug shs  9.4 million under the column  for amount paid  of Ug shs 9.4 million  with name of payee as Byanguye Herman  and signature but the same did not show that the  Respondent  (Plaintiff) received the money  owing  after all another  voucher  490 for a one mama on the same  date also  indicated the Respondent’s  (plaintiff) signature  to have signed  for one mama who was receiving  Ug shs 174,000/=.  Counsel added with  the above  unclear  entries  in two different vouchers to have been signed by the respondent (Plaintiff)  on the same date, were  appellant’s (Defendant’s)  creatures not the Respondent and the Trial Magistrate cannot be faulted for her decision. 

It was further submitted that whereas the appellant claimed that DW2  and DW3  witnessed he  payment  but in his examination in chief, the Respondent had  said that the appellant didn’t have DW2 and DW3  as their employees, that to the best of his knowledge DW2  and DW3  were DW1’s  sons, that although  there is no law stopping sons from working for their  father but in our case DW2 and DW3  on cross examination had no proof of being DW1  company workers, there was no identification, no  appointment letters,  this leads to the conclusions that DW2 and DW3 did not  participate in  paying  the Plaintiff, no wonder DW1  himself  didn’t  tell court as the fact that he saw the Respondent being paid. 

I have considered the submissions on both sides as far as the evaluation of evidence by the   lower court is concerned.  I have also read the judgment of the lower Court and evidence of witnesses on record.  First of all, it is settled law that it is the duty of the first Appellate Court to re evaluate the evidence on record and come up  with its own findings and conclusions, but without totally  disregarding the   Judgment  appealed against.  See Kifamuntu Henry vs Uganda SCCA NO. 10 of 1998.

Secondly, under Section 101 (1) of the Evidence Act, whoever desires any Court to give judgment as to any legal right  or liability dependent on the existence of facts which he or she asserts must prove that those facts exist.

Then under Section 101 (2) of the same Act, when a person is  bound to prove the existence  of any  fact, it is said that the burden of proof lies on that person.  In the present case, since it was the Respondent who was Plaintiff, the burden to prove that he was not paid the balance of UGX 9.4  million by the appellant lay on him.

At the scheduling conference in the lower court, there were two issues:-

1. Whether the Defendant  (now  Appellant) was liable for the sum of UGX 9,414,500/=.
2. The remedies  available to the parties.

In the lower court, the Plaintiff (now Respondent) was the sole witness and the appellant now produced four witnesses.  The plaintiff (now Respondent’s) testimony was that he knows the Defendant as a business person dealing in  coffee in Gomba district.  That on 11/07/2012  he supplied Defendant with dried coffee beans at a cost of 10.885.200/=  (Ten million eight  hundred eighty  five thousand  and two hundred shillings).  That  he was issued with a receipt.  The same receipt  Bulando Tamuzade and sons Serial Number 3708 called cash sale date 1/07/2012  for money issued by Defendant to Plaintiff to acknowledge  payment of 1.473.700/= out of  10.885.200/= for 24 bags  of coffee  was admitted in court as PI having  been agreed by both parties.  That the receipt cash  sale was an acknowledgement  that plaintiff had received 1.473.500/=  and that 9.411.500 was still owing facts  both parties  accepted as an agreed one.  That the Defendant had never paid the same balance despite  the numerous demands, hence this suit. 

During cross examination by Counsel for Defendant Plaintiff told  court that Defendant only paid  1,473,700/=.  That  the figure  of 10.88.200/= was reached at by both  of them  (Plaintiff and Defendant), having  agreed to deduct off transport  and milling costs.  PWI added that he had been dealing  with Defendant in the same business for quiet some time.  That Kaijja Alex  (DW3  ) was to Defendant’s son so was Mukoko Geoffrey (DW2)  and that he (Plaintiff)  would find  them at their father’s home . He added that he had never seen  the two Defendant’s sons (DW2 and DW3)  at the coffee  factory as workers.  That he used to deal with the Defendant personally.  That on 15/7/2012, the Plaintiff was at his home he never went to defendant factory.  He  (Plaintiff)  denied the document that was shown to him saying that he signed  having  received the money owing  balance.

The Defendant (Appellant) on the other hand’s case in the Lower Court  was that on 10/2/2012, he personally  paid plaintiff  (Respondent) an advance payment of UGX 1,473,700/=  to facilitate him deliver the coffee at  appellant’s  factory.  He added when the coffee valued at UGX 11,142,700/= was delivered, the advance  payment  of 1,473,700/= was  entered in his creditors advance book (DI).

The appellant’s further testimony was that on 15.7.2012, he gave the list of  creditors to Kajja (DW3)  who delivered it to the cashier, DW2, Mukoko Geoffrey and the cashier  paid the Respondent now his balance of UC 9,411,500/= using a payment voucher.  The Appellant’s case was supported by DW2, Mukoko Godfrey  who  confirmed  that when DW3, Kajja Alex took to him the list of creditor’s of the appellant (Defendant’s) company, he paid the Respondent (Plaintiff)  UGX 9,411,500/=  through a payment voucher   No. 489.  DW2  added that the Plaintiff (Respondent) acknowledged  receipt of the money and signed, and thereafter took the original voucher.  During  cross-examination in the lower Court,  DW2  confirmed that he was the cashier of the Defendant/Appellant’s  company and that he always  paid customers as per the list written by the Director  (DW1).

DW3, Kajja Alex confirmed  that he had worked for  three  years in  the Appellant’s company  of Bulondo Tamwazadde and sons as office messenger.  DW3 added that he delivered the payment list to the cashier and witnessed the cashier, DW2  pay the  money to the Plaintiff now respondent. 

Before I consider the testimony  of DW4,  up  to this stage, I wish  to note that whereas it was the duty of the Plaintiff/Respondent to prove in the lower court that he was  not paid the balance of UGX 9,411, 500/=, the appellant  who testified  as DW1  confirmed payment.  He was supported by DW2, the cashier and DW3, the office messenger of Appellant’s  company.  DW2  also testified that the Plaintiff/Respondent signed the payment  voucher No. 489, and he took the original copy  of the voucher  No. 489.

So whereas the law does not state or provide for a particular number of witnesses to prove a fact, the finding and holding of this court is that the appellant, whose case of payment was supported by two witnesses, DW2  and DW3  was    more  believable than that of the  Respondent  which was not supported by anybody. Secondly, the payment voucher No. 489 signed by the Respondent  after being  prepared  by the cashier  (DW2)  was exhibited in court  in duplicate, the Respondent having  taken the original .  Although the Respondent turned round to deny having signed the voucher, DW4, S.P.  Sebunya, a handwriting expert  and a document examiner at Police Forensic  laboratory  Naguru,  testified that he received a reference by a record officer under Lab No.  FS/D124/2016, the request to ascertain whether the signature  of  Herman Byanguye  on document  is as of the same person who executed the signature of Herman Byanguye on Document No. 2 and document no. 3 .  DW4  made a report using scientific  methods such as sketching Characters, visual observations and video spectral operator  (comparison machine).

DW4 came up with the findings that there was a close relationship  between the sample signatures and the questioned one, and  that they were similar in shape,  in relative sizes and proportions of letters.  The conclusion of DW4  was as follows  on page 16  of the proceedings,  “based on the above’ observations, in my opinion, there is  strong  evidence to show that both sample signatures and documents  2 and 3 and queried  signatures on document 1 is one and same of  person……….”

A  copy  of the original  report together with the documents  examined were tendered in court as defence exhibits  (Ex D.3)  and Counsel  Maiteki  for the Plaintiff (now  Respondent)  had no objection at all.  That is on page 16 of the record of proceedings.

In my view,  DW4, Sebuwufu Eria, the  document examiner  , holding a master of Science  in document analysis  from university of Central Lamcher, among other  qualifications, properly supported the appellant’s case that the respondent signed voucher No. 489, which was acknowledgement of receipt of the balance of UGX 9,411,500/=.  Although  the trial Magistrate on page 7 of her Judgment stated that voucher No. 489 was a duplicate copy, DW2  confirmed that the original  was taken by the Plaintiff/Respondent. The other  finding of the trial chief magistrate that the cashier, DW2  and office messenger DW3 did not have employment letters from the appellant did not affect their evidence on record that they paid the Respondent the balance of  UGX 9,411,500/=  on voucher No. 489  which position was confirmed by the expert, DW4.  DW2 , Mukoko Geoffrey confirmed  during  cross examination that he was employed  as  a cashier since 2010 by his father (DW1)  in a family  business.  DW2  concluded that when business is good, he could handle UGX 50,000,000/=  and about  30 people at a time.  This  Court cannot doubt his credibility  simply  because he was a son of the Director of the company.

In the  circumstances, I reject the submissions of counsel for the Respondent that there were contradictions and inconsistencies in the testimonies of the Defendant/Appellant and  his witnesses.

Instead, I find and hold that the trial Magistrate erred in believing the testimony of the Respondent  without evaluating it against that of the appellant and his witnesses.

The conclusion of this Court is that the trial Chief Magistrate failed to properly evaluate the evidence of DW1, DW2 and DW3  and came to the wrong  conclusion that the appellant did not pay the Respondent the balance of UGX 9,411,500/=.

I therefore find ground No. 1  of appeal in the positive.

Ground No. 2

The learned  Trial  Chief Magistrate erred in law  and in fact when she declined to rely on the handwriting  experts report  basing on wrong reasons hence coming to a wrong conclusion.

Counsel for the Appellant submitted that DW4 stated   in examination in chief  that according to his observations, there is a close relationship  between the sample  signatures and  questioned one.  And  stated further that several letters like “B”  and “H” , j,n,g are similar in character combination.  And he  concluded that in his opinion, there is strong evidence to show that both sample  signature and documents  2 and 3  and  queried signatures on document 1 is one and same person. 

He quoted the  text book of Cross   & Tapper on evidence, Butter worth  1995  8^th Edition, page 557  where  it is  stated that generally, an expert  evidence carries more weight than an ordinary  witness and that the real value of his evidence lies in the logical  inference which he draws from what he  himself observed  and not merely what he summarizes or  has been told by others.

In reply, counsel for the Respondent  submitted that the witness DW4  was at the instance of the appellant whose service was paid for the appellant, he told court that he received  the request from Lukwago & Co. Advocates, who were the lawyers for the appellant at the trial Court.  In his testimony, DW4  in his findings  opined that there was a closeness to show that the author of sample signatures on  documents 2 and 3  and the questionable signature on document 1 is one and the same. 

Counsel  also added that since DW4  in cross examinations stated that a person  can write like another   with a pictorial  view showing  similarity, then it was possible  that the Respondent’s signature was forged or copied on the payment voucher. 

Further submissions were that the DWEXI (Laboratory report)  and the testimony of DW4  did not help in resolving the issue as to whether the appellant paid the balance claimed by the Respondent.

That document  1,  stated to be the payment voucher was a copy and not the original.

With due respect to learned counsel for the Respondent, and even the trial Magistrate about the copy of the voucher other than the original, the evidence of DW1 and DW2 was clear  that the Respondent took the original voucher  after signing for  the balance claimed.  So  what  remained was the coy which was submitted to the expert.  Secondly, the opinion of the expert as seen from page 2  of the report   findings was based on the forward angle of slant shape, relative sizes and proportions of letters B,H…. character  combinations, handwriting  skill, letter positions, and relative spacing between characters.

The principles of dealing with a handwriting  expert  were laid down in the case of Kimani vs Republic  (2000) E.A  417, where it was stated  as follows: “ …….it  is now trite law that while the courts must  give  proper  respect  to the opinion of expert, such  opinions are  not as it were, binding on the  courts…..such evidence must be considered along with all other available evidence and if a proper  and cogent basis for rejecting the expert  opinion would be  perfectly entitled to do so……….”

In the present case, and as already noted, there was no cogent reason given by the trial Magistrate in rejecting the expert evidence of DW4, who was a highly trained officer.  Section 43  of the evidence Act provides that when Court has to form   an opinion as to  the identity of handwriting or finger impressions, the opinions upon that point of persons specially  skilled in questions as to the identity of handwriting or finger impressions are relevant  facts.

I therefore find and hold that in the circumstances of this case, the opinion of the expert, DW4  was of much relevance and his report corroborated the evidence of  DW1, DW2 and DW3.

I therefore allow ground 2 of the appeal.

Ground 3

The learned trial Chief  Magistrate erred in law and  in fact when she awarded excessive general damages to the Respondent.

Counsel for the Appellant  submitted that general damages  are awarded  at the discretion of court however in this case, it is our humble  submission that the general damages awarded at the Court rate from the date of judgment  was excessive.  In William Alfred Kisembo & anor vs Kiiza  Rwakakaikara ivan HCT-00-CC-CA-7-2013) Hon Justice Hellen Obura as she then was at page 5-7  of the judgment  observed that there are certain circumstances under which the Appellate Court can  interfere  with the exercise of discretion on award of general damages.  She referred to the case of Mbogo  & anor vs shah (1968) E.A 93 where sir Charles Newbold P. held  that the Court of appeal  should not interfere with the exercise of discretion of a judge  unless it is satisfied that:

1. The Judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong  decision, or that this amounted to a miscarriage of justice.

1. That the trial Judge acted  upon  a wrong principle  of law.

1. The amount  awarded is so high  or so low as to make in an entirely erroneous  estimate of damages  to which the plaintiff was entitled.

Counsel concluded that considering the amount claimed for breach of contract was UGX 9,411,500/=,  then the award of UGX 5,000,000/= was excessive.

Counsel for the Respondent on the other hand submitted  that in considering claims for general damages, Courts should  usually  take into  account the fact that they are deemed  as compensatory and not punitive, for damages are pecuniary  recompense given by the process of law to a person for the actionable wrong that another has done to him as it was defined in Halsbury Laws of England volume 12  4^th Edition at paragraph 1202.  This  definition was further expounded by Lord Greene Mr. in the case of hall  Brothers Ss Co Ltd  vs Young (1939) 1 KB 754  at 756 (CA)  for  he had this to say:

“damages, to an English lawyer, imports this idea that sums payable by way of damages are sums which fall to be paid  by reason of some breach of duty or obligation whether that duty or obligation is imposed by contract , by the general law, or legislation.”

Having found grounds No. 1 and 2 in the positive, then it is not necessary to go into the detailed submissions of both sides on ground No. 3.  Having held that the respondent had been paid the balance of UGX 9,411,500/=, then there was no breach of contract on the part of the  Appellant.  General  damages were therefore un called for and so ground no. 3 of  appeal also succeeds. 

In conclusion therefore I find and hold that if the trial chief Magistrate had thoroughly examined the record, the evidence and evaluated the appellant’s evidence against that of the respondent, and the report of the handwriting expert, she would have come to a different conclusion that the Respondent  had been fully paid his balance.  On page  6 of her judgment, the trial chief magistrate stated that she only took the evidence of DW4  and the other witnesses were handled  by her predecessors who had different handwriting and so she had a challenge of understanding  the evidence of those previous witnesses.

Be that as it may, this Court has found and held under ground 1 of appeal that the evidence of DW1, DW2 and DW3  was coherent and collaborated the fact that the Respondent had been paid and had acknowledged receipt of the money on a voucher.

The appeal is accordingly hereby allowed and the orders of the trial Magistrate are set aside.

I also award costs to the Appellant.

……………………….

W. Masalu Musene

Judge

12/09/2017.