[2005] UGCommC 69

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\li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0 \fs24\lang1033\langfe1033\cgrid\langnp1033\langfenp1033 {\fs28\insrsid1136281\charrsid11563254 \par }\pard \qc \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid2430259 {\b\f36\fs28\insrsid2430259 THE REPUBLIC OF UGANDA \par \par IN THE HIGH COURT OF UGANDA AT KAMPALA \par (COMMERCIAL }{\b\f36\fs28\insrsid7358566 COURT }{\b\f36\fs28\insrsid2430259 DIVISION) \par \par }{\b\f36\fs28\insrsid7358566 HCT-00-CC-CS-}{\b\f36\fs28\insrsid2430259 }{\b\f36\fs28\insrsid5268079 0}{\b\f36\fs28\insrsid2430259 207 OF 2004 \par }\pard \ql \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid2430259 {\b\f36\fs28\insrsid2430259 \par \par HWAN SUNG LTD ::::::::::::::::::::::::::::::::::::::: PLAINTIFF \par \par }\pard \qc \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid11563254 {\b\f36\fs28\insrsid2430259 VERSUS \par }\pard \ql \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid2430259 {\b\f36\fs28\insrsid2430259 \par KAJ}{\b\f36\fs28\insrsid5268079 J}{\b\f36\fs28\insrsid2430259 OBA BOSCO S}{\b\f36\fs28\insrsid5268079 S}{\b\f36\fs28\insrsid2430259 EMWEZI ::::::::::::::::::::::: DEFENDANT \par \par \par BEFORE: }{\b\f36\fs28\ul\insrsid2430259\charrsid3691091 THE HONOURABLE MR. JUSTICE YOROKAMU BAMWINE \par \par }{\b\f36\fs28\insrsid2430259 \par }{\b\f36\fs28\ul\insrsid2430259\charrsid3691091 J U D G M E N T: \par }{\b\f36\fs28\insrsid2430259 \par }\pard \qj \li0\ri0\sl480\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid8802963 {\f36\insrsid2641219 The Plaintiff\rquote s action is for recovery of Shs.5,200,000- from the Defendant being money allegedly advanced to the Defendant as pre \endash finance to buy fish. The Defendant\rquote s }{\f36\insrsid5268079 response }{\f36\insrsid2641219 right from the time t}{ \f36\insrsid5268079 he claim}{\f36\insrsid2641219 was drawn to his attention is that he has never borrowed any money from the Plaintiff and is, therefore, not indebted to it in any way.}{\f36\insrsid3691091 He admits to have applied}{ \f36\insrsid2824555 for a loan from the Plaintiff }{\f36\insrsid5268079 under }{\f36\insrsid2824555 his signature}{\f36\insrsid7415243 . He also admits that the application was supported by a letter from the LC1 Chairman of Bunga Trading Centre which was attached to it. His case is that he never received any response to that application.}{\f36\insrsid2430259 \par }{\f36\insrsid7415243 \par Two issues were framed for determination: \par 1.\tab Whether the Plaintiff loaned money to the Defendant as alleged. \par 2.\tab If so, whether the Plaintiff is entitled to the reliefs sought and quantum. \par \par Representation: \par Mr. Fisher Sengooba for Plaintiff. \par Mr. Charles Dalton Opwonya for Defendant. \par }{\f36\insrsid5458015 \par As to whether the Plaintiff loaned money to the Defendant, there is on record the evidence of Okiror Anthony, PW1. It is to the effect that the Defendant got a loan from the Plaintiff in the sum of Shs.10m.}{\f36\insrsid5837558 That the loan was not in cash but by way of fish nets. It is PW1\rquote s evidence that the Defendant embarked on the payment until Shs.5,200,000- remained unpaid. That the Defendant would bring in fish and the loan payments were by way of deductions from the fish proceeds.}{\f36\insrsid5458015 \par }{\f36\insrsid5837558 \par From the evidence of this witness, the fish suppliers, including one Bosco who is indicated in the Plaintiff\rquote s records as having been regularly paying back money to the company, did not actually bring the fish to the company factory at Ntinda. Company officials used to go to the Landing Sites where the transactions used to take place. Okiror\rquote s evidence on this point was rather confusing. He states at one point: \par }\pard \qj \li720\ri720\sl480\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin720\lin720\itap0\pararsid8353240 {\i\f36\insrsid5837558\charrsid8353240 \'93 I was involved in the collection process of that money. He used to bring fish and when ever he did so, he would pay Shs.200,000-. In other words, out of the }{\i\f36\insrsid10895030\charrsid8353240 fish proceeds,}{\f36\insrsid10895030 }{ \i\f36\insrsid10895030\charrsid8353240 we would deduct Shs.200,000-. He}{\f36\insrsid10895030 }{\i\f36\insrsid10895030\charrsid8353240 would bring fish depending on the catches at Muwama but I have never been there\'94.}{ \i\f36\insrsid5837558\charrsid8353240 \par }\pard \qj \li0\ri0\sl480\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid8802963 {\f36\insrsid10895030 \par He continues: \par }\pard \qj \li720\ri720\sl480\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin720\lin720\itap0\pararsid8353240 {\i\f36\insrsid10895030\charrsid8353240 \'93He has been bringing fish, I make the receipt for him. I have personally been doing so.\'94

\par }\pard \qj \li0\ri0\sl480\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid8802963 {\f36\insrsid10895030 \par Under cross-examination, this is part of what PW1 said: \par }\pard \qj \li720\ri720\sl480\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin720\lin720\itap0\pararsid8353240 {\i\f36\insrsid10895030\charrsid8353240 \'93\'85\'85\'85.. Bosco would not bring fish to the factor}{\i\f36\insrsid8943884 y}{ \i\f36\insrsid10895030\charrsid8353240 . He would bring fish to the landing site. I have never met him at the landing site.\'94 \par }\pard \qj \li0\ri0\sl480\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid8802963 {\f36\insrsid10895030 \par From the evidence of this witness, he never personally met the Defendant or even the Bosco in }{\f36\insrsid2688823 the records}{\f36\insrsid10895030 at any stage of this case at the landing site. However, he claims to have been issuing receipts to him at the landing site and even collecting fish from him. I do not know whether this witness was aware of the contradictions in his testimony. Be that as it may, I did not find the contradictions in his evidence minor. They are fundamental. They go to the root of this case, the identification of the Defendant as the Bosco who was allegedly given money by t he Plaintiff company but did not supply fish to it as promised. His evidence gave me the impression that he is either a deliberate liar; he didn\rquote t know what he was talking about; he was a confused witness; or he was covering up something. Either way, I was not impressed by the evidence of this witness. I considered it too unreliable to be relied upon. \par }{\f36\insrsid11341910 The other witness, PW2 Jo, former Managing Director of the Plaintiff company said that the Defendant obtained}{\f36\insrsid2760687 credit from his company twice. That this was in January 2003 and June 2003. About the January transaction, it is the evidence of PW2 that the Defendant bought 500 fish nets worth Shs.10m. That he made refunds and by June 2003, the balance was Shs.3,600,000-. That }{\f36\insrsid2719405 the Defendant went to him again fo r a loan of Shs.2m and the balance became Shs.5,600,000-. That by the time he disappeared, the balance was Shs.5,200,000-. His evidence is that the Defendant signed for the money in his presence. The Defendant denies all this. He says that he made his application for a loan in June 2003, the Plaintiff did not respond to it, and in March 2004, he received}{\f36\insrsid5923870 a letter from M/S Kadeti Business Consult Ltd claiming to be acting on instructions of the Plaintiff to recover the amount in question herein. That he instructed his lawyers to protest on his behalf and later received summons relating to this case.}{ \f36\insrsid11341910 \par }{\f36\insrsid5923870 \par PW3, the Handwriting expert, looked at the signatures said to be those of the Defendant and concluded that they were his. As fate}{\f36\insrsid13859942 would have it, all the si gnatures looked at by this witness are disputed by the Defendant. The handwriting expert\rquote s report is not based on any }{\f36\insrsid10296458 undisputed}{\f36\insrsid13859942 signature of the Defendant to raise the inference that he compared the impugned signatures with the Defendant\rquote s spacemen signature and came up with the conclusion he did. The report is to that extent unhelpful to Court.}{\f36\insrsid5923870

\par }{\f36\insrsid13859942 \par I have very carefully considered the Plaintiff\rquote s evidence in this case. PW2 insisted that the Defendant signed P. Exh. 1 in his presence.}{\f36\insrsid11543946 The borrower is indi cated thereon as Kajjoba Bosco Ssemwezi, a fish monger. As fate would have it, although}{\f36\insrsid14295994 the Defendant said that he}{\f36\insrsid6520163 applied for the loan in writing, the Plaintiff did not produce any such agreement. The Plaintiff\rquote s case would have made more sense if such an application had been retained and the signature on it was to be compared with the impugned one on the Agreement. As matters stand now; the signature on the agreement is consistent with the one on the Receipts, P. Exh. 11. However, there is no consist e nt evidence showing that the Defendant was the author of the signatures on the Receipts since PW1 Okiror never met the Defendant at any one given time at the landing site and yet whoever signed as such did so, according to PW1, at the landing site. Along side this unsatisfactory state of affairs}{\f36\insrsid16084367 is the evidence that the Defendant has been seen several times affixing his signature on Court papers. He is alleged}{\f36\insrsid7108137 to have signed on the summons to enter appearance. The signature thereon resembles the ones he has consistently denied. As fate would have it, upon receipt of a threat from the }{\f36\insrsid2688823 Plaintiff}{\f36\insrsid7108137 to take drastic action against him, the Defendant is on record to have acted through his lawyers, M/S Opwonya & Co. Advocates, who advised the Plaintiff to channel all correspondence on the mater to the Defendant through themselves. PW4 claims to have served the Defendant personally, despite that advice to the Plaintiff. The Defendant denies the signature thereon. It resembles all other signatures disputed by hi m.}{\f36\insrsid13859942 \par }{\f36\insrsid5004650 \par On the other hand, the Defendant is on record to have sworn a number of affidavits during the pendancy of this case. One is dated 26/4/2004 and another 1/11/2004. The Defendant does not deny the 2 signatures thereon. The two are consistent with a sig nature}{\f36\insrsid1263834 appearing on a Residential Identity Card D. Exh. 4, dated 25/5/2004 and the spacemen signatures he gave Court when he was testifying. The inherent consistency of his undisputed signatures}{\f36\insrsid13120478 , ironically also relied upon by the Plaintiff, and the incon sistency between those signatures and the ones on the purported agreement and the various Receipts are matters which have caused considerable difficulty to the Court. I have not seen any good excuse or at all why, if as claimed the Defendant had ever pre viously borrowed Shs.10m from the Plaintiff on a similar application, no documentary evidence could be tendered in that regard. And if, any such loan had been}{\f36\insrsid8218367 previously advanced to him, why did it become necessary, in June 2003, for the LC1 Chairman to introduce him to the company?}{\f36\insrsid5004650 \par }{\f36\insrsid3816239 \par Does this mean that the previous loan of Shs.10m was made to him without any such letter of introduction and a photo}{\f36\insrsid10296458 graph}{\f36\insrsid3816239 or any documentation at all? \par \par These and many other weakness}{\f36\insrsid7693350 es}{\f36\insrsid3816239 in the Plaintiff\rquote s evidence have caused considerable discomfort to Court regarding the Defendant\rquote s liability. }{\f36\insrsid10768250 Since the Plaintiff was advised by the Defendant\rquote s lawyers that all correspondence would hence forth be channeled to the Defendant through themselves, which they did not do, it is possible that the person whom PW1 Okiror used consistently to sign on the Receipts was the same person who signed on the summons to file the defence as the Defendant herein.}{\f36\insrsid3816239 \par }{\f36\insrsid10768250 \par In law, a fact is said to be proved when Court is satisfied as to its truth. 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 the}{\f36\insrsid5666852 party adduces evidence sufficient to raise a presumption}{\f36\insrsid16662558 that what he asserts is true, he is said to shift the burden of proof: t hat is, his allegation is presumed to be true, unless his opponent adduces evidence to rebut the presumption. The standard of proof is on}{\f36\insrsid3285691 the balance of probabilities. In the instant case, Plaintiff has alleged that the Defendant owes it money. The Defendant denies it. The burden is on the Plaintiff to prove the alleged indebtedness. F}{\f36\insrsid14307041 rom my analysis of the evidence above, it is possible that the Bosco who}{\f36\insrsid14485266 before 23/6/2003 borrowed Shs.10m for fish nets from the Plaintiff, and another Shs.2m on 23/6/20 03 under the impugned agreement, P. Exh. 1, and also signed as the recipient of the Summons to file a defence on 15/4/2004, is different from Kajjoba Bosco Ssemwezi, the Defendant herein. In view of that possibility and doubt, the Plaintiff has not satis factorily}{\f36\insrsid6774806 or at all discharged its burden of proof. Accordingly, Court is not satisfied on a balance of probabilities that the Plaintiff loaned money to the Defendant or the Defendant is indebted to the Plaintiff in the sum of Shs.5,200,000-}{ \f36\insrsid14166158 as alleged or at all. In view of that conclusion, Court holds that the Plaintiff is not entitled to the reliefs sought against the Defendant. It is immaterial that the Plaintiff is a financial giant who ordinarily wouldn\rquote t be chasing a financial dwarf for nothing. Some people could be playing games on the Plaintiff for reasons best known to them.}{\f36\insrsid7018731 In all these circumstances, }{\f36\insrsid14166158 I would dismiss this suit with costs to the Defendant and I do so. \par \par \par Yorokamu Bamwine \par }{\b\f36\insrsid14166158 J U D G E \par }{\f36\insrsid14166158 29/11/2005 \par }{\f36\insrsid14567843\charrsid14567843 \par }}