THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
CIVIL APPEAL NO. 35 OF 2003
(FROM ORIGINAL MENGO C. S. NO. 762 of 1999)
SALONGO KIBUDDE :::::::::::::::::::::::::::::::::::::::::::APPELLANT
VERSUS
MRS. JOSEPHINE MUBIRU :::::::::::::::::::::::::::::RESPONDENT
BEFORE: THE HONOURABLE MR. JUSTICE YOROKAMU BAMWINE
JUDGMENT
The above named appellant being aggrieved by and dissatisfied with the judgment, decree and orders of Her Worship Atukwase Justine, Magistrate Grade I, delivered on 20/05/2003 at Mengo Chief Magistrate’s court appealed to the High Court against the whole of that judgment and decree on the following grounds:
1. The learned trial Magistrate erred in law and fact when she found that the appellant owned (sic) Shs.1, 509,100/= to the respondent without evidence to prove existence of a contract between the appellant and the respondent.
2. The learned trial Magistrate erred in law and fact when she found as a fact that the appellant used the respondent’s vehicle as a special hire when it was unlicensed and could not lawfully be driven on the road.
3. The learned trial Magistrate erred in law and fact when she rejected the defence evidence of non-use of the vehicle, which was contradicted.
4. The learned trial Magistrate failed to properly evaluate the evidence on record on both sides thus coming to a wrong decision.
The grounds of appeal were formulated by the appellant personally. On getting a lawyer, they were not reviewed. The four grounds can, in my view, be conveniently summarized as follows: -
1. Whether the learned trial Magistrate subjected the evidence before her to adequate scrutiny.
2. Whether the learned trial Magistrate erred in law when she made the impugned orders.
The above broad grounds, in my view, do encompass all the grievances the appellant has against the decision of the lower court.
From the evidence, the plaintiff/respondent is the owner of the motor vehicle Registration No. UBD 996 a Toyota Corona, having bought it from one Nyanzi Umaru. After acquiring the same, she lent it out to the defendant/appellant for operation of special hire services at the rate of Shs.20, 000/= per day. The defendant/appellant stayed with it for a period of one and half months without any payments being made to the plaintiff/respondent. Hence the suit.
The learned trial Magistrate was invited to determine:
1. Whether there was a valid contract between the plaintiff and the defendant.
2. What were the terms of the contract.
3. Whether any of the parties breached the contract.
4. Remedies.
She determined the first issue in the affirmative. As regards the second one, she found that the defendant was to use the vehicle for hire services at the rate of Shs.20, 000/= per day. Since throughout the contract period the defendant never made any remittance of funds to the plaintiff, the learned trial Magistrate determined the suit in the plaintiff’s favour. Hence the appeal.
This is a first appeal. It is the duty of the first appellate court to review the record of the evidence for itself in order to determine whether the conclusion reached upon the evidence by the trial court should stand. It is trite that if the conclusion of the trial court has been arrived at on conflicting testimony after seeing and hearing the witnesses, the appellate court in arriving at a decision would bear in mind that it has not enjoyed this opportunity and the view of the trial court as to where credibility lies is entitled to great weight.
In law a fact is said to be proved when court is satisfied as to its truth. The evidence by which that result is achieved is called the proof. The general rule is that the burden of proof lies on the party who asserts the affirmative of the issue or question in dispute. When that party adduces evidence sufficient to raise a presumption that what he asserts is true, he is said to shift the burden of proof: that is, his allegation is presumed to be true, unless his opponent adduces evidence to rebut the presumption. The standard of proof balance of probabilities.
Applying the above principle to the instant case,the plantiff/respondent led evidence to show that she was the owner of the vehicle in question. She also led evidence to show that after acquiring the vehicle, she lent it out to the defendant /appellant for operation of special hire services. The transaction was not reduced to writing. It is trite that a contract is a legally binding agreement.
In general, no particular formality is required for the creation of a valid contract. I t may be oral, written, partly oral and partly written, or even implied from conduct.
In the instant case, the defendant /appellant did not deny the fact of taking the vehicle from the plantiff/respondent on hire terms.
Looking at the defendant/appellant’s written submissions of 11th December,2002, the existence of the contract and the terms as testified to by the plantiff/respondent were not denied.The very first paragraph of counsel’s submissions runs thus:
“The defendant admits the existence of a contract between himself and the plantiff whereby the defendant…..agreed to drive the plaintiff’s motor-vehicle registration No.UBD 996 for her as a special Taxi which had recently been purchased by the plantiff on 9/07/1999.The plantiff having actually taken possession of the vehicle decided to use same as a private special taxi and invited the defendant to drive the same for the purpose of raising some extra income. It was agreed term by both parties that shs.20, 000/= would be given to the plantiff at the end each working day.The contractual relationship was to continue as long as the defendant continued using the plaintiff’s vehicle as a private hire taxi commonly known in this country as SPECIAL HIRE. If that was not possible (payment) o daily basis, then to defendant was supposed
3vehicle for all the period of his disappearance from the respondent. The appellant’s assertion does not make any business sense and it simply lacked logic. The learned trial Magistrate was entitled to reject
it. Accepting, as I must, learned Counsel’s submission that the appellant is bound by the doctrine of estoppel, I am unable to fault the learned trial Magistrate’s conclusion on this point. She subjected the evidence before her to adequate scrutiny.
I now turn to the issue of damages.
The respondent in her plaint prayed for special damages of Shs.1,509,000/= for the period the vehicle was under the use and custody of the appellant. She also prayed for general damages for loss of earnings and inconvenience, interest and costs of the suit. By simple calculation, Shs.20,000/= per day for 45 days gives a figure of Shs.900,000/=. Learned counsel for the respondent has conceded that between gth July, 1999 and when the vehicle was finally impounded, the respondent’s entitlement was Shs.900,000/= and not Shs.1,500,000/=. In view of this concession the award made by the learned trial Magistrate cannot be allowed to stand.
I find cause to interfere with it. Given that the respondent’s claim of Shs.9,000/= (Shillings nine thousand only) being the cost of radio announcements was not challenged, I would substitute the order for payment of Shs.1,509,000/= as special damages with an order for payment of Shs.909,000/= by the appellant to the respondent. I do so.
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save on the question of special damages. On the whole, this appeal lacks merit. I dismiss it subject to the above variation. In view of the appellant’s partial success on the issue of special damages, the respondent shall be paid two-thirds of the costs of the appeal.
Orders accordingly.
Yorokaa mwi ne
JUDGE
03/04/2009
03/04/209:
Mr. Charles Mbogo for respondent
Respondent absent
Appellant present in person.
Counsel:
Counsel for appellant is absent. We are ready to receive the
Judgment.
Court:
Judgment delivered.
Yorokam) mwine
JUDGE /
03/04/2009
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THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
CIVIL APPEAL NO. 109 OF 2009
ARISING OUT OF MISC. APPLICATION NO. 08 OF 2009
MISC. APPLICAION NO. 566 OF 2008
AND
CIVIL SUIT NO. 320 OF 2007
1. BANKOFUGANDA
2. STANDARD CHARTERED BANK APPELLANTS
UGANDA LIMITED
3. CHRISTOPHER KIBANZANGA
VERSUS
1. SAIDI KYADONDO
2. DAN KATARIBWE KWATAMPORA
3. STEPHEN KAGORO
4. TUMWINE SILAGI RESPONDENTS
5. IMAM KANKURIHEMU
6. JAMES MAGEZI
BEFORE: THE HONOURABLE MR. JUSTICE YOROKAMU BAMWINE
RULING:
The appleal was brought under 0.50 r.8 of the Civil Procedure Rules and S. 98 of the Civil Procedure Act. It is for orders that:
(i). The order of Her Worship Elizabeth Kabanda dated 3 February, 2009 in Miscellaneous Annlication No. 08 of 2009 refusing
the substituted service order in relation to Miscellaneous Anylication No. 566 of 2008 be set aside.
(ii). The 1st, 3rd, 4th, 5th and 6’’ respondents in Miscellaneous Application No. 566 of 2008 (“the respondents’) be served by advertising of the Notice of Motion in the Monitor Newspaper and by posting a copy thereof to the said respondents postal addresses, as indicated on the respective certificate of Titles registered in their names.
(iii). The costs of this appeal be in the cause.
From the records, the appellants filed Miscellaneous AnDlication No. 08 of 2009 seeking to serve Miscellaneous Application No. 566 of 2008 on the respondents by substituted service, having failed to effect service on them in the ordinary way. The application for substituted service was refused by the Registrar principally on the ground that the respondents were not parties to the underlying suit, HCCS No. 320 of 2007, from which the impugned decree arises. The Registrar also held, as a further ground of refusal, that there was no disclosure of the source of information of the process server in relation to paragraph 4 of the process server’s affidavit.
It is contended for the applicants that the Registrar erred in law in refusing the application on the basis that the said respondents were not parties to the main suit, HCCS No. 320/2007 as that was not relevant. That the relevant question was whether the respondents were party to Miscellaneous Application No. 566 of 2008 which application it was sought that they be served.
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When the application came up for hearing on 30/03/09, Mr. Kiggundu Mugerwa appearing on Mr. Masembe
