[2006] UGCA 36

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;}\listid2134905439}}{\*\listoverridetable{\listoverride\listid2134905439 \listoverridecount0\ls1}{\listoverride\listid1319265048\listoverridecount0\ls2}}{\*\pgptbl {\pgp\ipgp0\itap0\li0\ri0\sb0\sa0}}{\*\rsidtbl \rsid2694447\rsid3369017\rsid6554269\rsid7950008\rsid11345972\rsid12129301\rsid12480797\rsid14564831\rsid15097605 \rsid15300413\rsid16127975\rsid16602981}{\*\generator Microsoft Word 11.0.5604;}{\info{\title THE REPUBLIC OF UGANDA }{\author Administrator}{\operator Sheila}{\creatim\yr2010\mo5\dy28\hr11}{\revtim\yr2010\mo5\dy28\hr11}{\version2}{\edmins12}{\nofpages19} {\nofwords5767}{\nofchars32874}{\*\company Kivumbi}{\nofcharsws38564}{\vern24689}}\margl1440\margr1440 \widowctrl\ftnbj\aenddoc\noxlattoyen\expshrtn\noultrlspc\dntblnsbdb\nospaceforul\hyphcaps0\formshade\horzdoc\dgmargin\dghspace180\dgvspace180 \dghorigin1440\dgvorigin1440\dghshow1\dgvshow1\jexpand\viewkind1\viewscale100\pgbrdrhead\pgbrdrfoot\splytwnine\ftnlytwnine\htmautsp\nolnhtadjtbl\useltbaln\alntblind\lytcalctblwd\lyttblrtgr\lnbrkrule\nobrkwrptbl\snaptogridincell\allowfieldendsel\wrppunct \asianbrkrule\rsidroot2694447\newtblstyruls\nogrowautofit \fet0\sectd \linex0\endnhere\sectlinegrid360\sectdefaultcl\sectrsid12129301\sftnbj {\*\pnseclvl1\pnucrm\pnstart1\pnindent720\pnhang {\pntxta .}}{\*\pnseclvl2\pnucltr\pnstart1\pnindent720\pnhang {\pntxta .}}{\*\pnseclvl3\pndec\pnstart1\pnindent720\pnhang {\pntxta .}}{\*\pnseclvl4\pnlcltr\pnstart1\pnindent720\pnhang {\pntxta )}}{\*\pnseclvl5\pndec\pnstart1\pnindent720\pnhang {\pntxtb (}{\pntxta )}}{\*\pnseclvl6\pnlcltr\pnstart1\pnindent720\pnhang {\pntxtb (}{\pntxta )}}{\*\pnseclvl7\pnlcrm\pnstart1\pnindent720\pnhang {\pntxtb (}{\pntxta )}}{\*\pnseclvl8\pnlcltr\pnstart1\pnindent720\pnhang {\pntxtb (}{\pntxta )}}{\*\pnseclvl9\pnlcrm\pnstart1\pnindent720\pnhang {\pntxtb (}{\pntxta )}}\pard\plain \s15\qc \li0\ri0\sb100\sa240\sbauto1\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\ipgp1\pararsid7950008 \fs24\lang1033\langfe1033\cgrid\langnp1033\langfenp1033 {\b\insrsid2694447\charrsid7950008 THE REPU}{\b\insrsid7950008 BLIC OF UGANDA \line IN THE COURT OF}{\b\insrsid2694447\charrsid7950008 APPEAL OF UGANDA AT KAMPALA }{\b\insrsid7950008 \par }\pard \s15\ql \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\ipgp1\pararsid7950008 {\b\insrsid2694447\charrsid7950008 CORAM: }{\b\insrsid7950008 \tab }{\b\insrsid2694447\charrsid7950008 HON. DEPUTY CHIEF JUSTICE L. E. M. MUKASA-KIKONYOGO, }{\b\insrsid7950008 \par \tab \tab }{\b\insrsid2694447\charrsid7950008 HON. LADY JUSTICE C. N. B. KITUMBA, JA \line }{\b\insrsid7950008 \tab \tab }{\b\insrsid2694447\charrsid7950008 HON. MR. JUSTICE S. B. K. KAVUMA, JA }{\b\insrsid7950008 \par }\pard \s15\qc \li0\ri0\sb100\sa240\sbauto1\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\ipgp1\pararsid7950008 {\b\ul\insrsid2694447\charrsid7950008 CIVIL }{\b\ul\insrsid2694447\charrsid7950008 APPEAL NO.9 OF 2001 }{ \b\insrsid7950008 \par KYAGALANY}{\b\insrsid2694447\charrsid7950008 I COFFEE }{\b\insrsid7950008 LTD :.:::::::::::::::::::::::::::::::::::::::::::::::::::::::APP}{\b\insrsid2694447\charrsid7950008 ELLANT \line VERSUS \line STEVEN TOMUSANGE :::}{\b\insrsid7950008 ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESP}{\b\insrsid2694447\charrsid7950008 ONDENT \line (Appeal from the Judgment and Decree of the High Court of Uganda given \line Kampala on the 1st September 2000 (Justice Herbert}{ \b\insrsid11345972 Ntabgoba presiding) in \line H. C. C.}{\b\insrsid2694447\charrsid7950008 S 981 of 1997)}{\b\insrsid7950008 \par }\pard \s15\qj \li0\ri0\sb100\sa240\sbauto1\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\ipgp1\pararsid7950008 {\b\ul\insrsid2694447\charrsid7950008 JUDGMENT OF THE HON. JUSTICE L. E. M. MUKASA-KIKONY000, DCJ }{ \b\insrsid7950008 \par }{\insrsid2694447\charrsid7950008 This appeal is lodged to this Court by Kyagalanyi Coffee Ltd, 30 hereafter to be referred to as the appellant. I}{\insrsid7950008 t is brought against }{\insrsid2694447\charrsid7950008 the judgment and decree of the High Court delivered at Kampala on 1st }{\insrsid7950008 September 2000. \par }{\insrsid2694447\charrsid7950008 The brief facts are that in December 1989, Steven Tomusange, the res pondent, started dealing with the appellant by selling to it processed coffee. At that time the respondent was using his own capital which was in the sum of 20-30 million shillings. As his business grew and due to his hard work}{\insrsid7950008 ,}{ \insrsid2694447\charrsid7950008 an arrangement was made between them where the appe}{\insrsid7950008 llant agreed to pre-finance \line }{\insrsid2694447\charrsid7950008 the respondent. The agreement was that the respondent would be advanced with various amounts of money depending entirely on the discretion of the appellant\rquote s administrative manager, one Ms. Miranda M. C. Laughlan until the coffee buying session was over.}{\insrsid7950008 \par }{\insrsid2694447\charrsid7950008 In short the pre-financing agreement would be for a specific coffee period. On its expiry another one would be made or the existing one extended. It was also agreed by the parties that repayment would be i n-kind, namely by delivering coffee to the appellant equivalent to the amount advanced to him in cash. }{\insrsid7950008 \par }{\insrsid2694447\charrsid7950008 As a pre-financing condition precedent the respondent was required to do the following: }{\insrsid7950008 \par a) }{\b\insrsid2694447\charrsid7950008 To deposit his land title on which there is a nightclub and other buildings valued at shs. 180.000.000/= compris}{\b\insrsid7950008 ed in Singo Block 160 Plot 54. \par }{\b\insrsid2694447\charrsid7950008 b) To sign a transfer of the above land in favour of the appellant to be used in the event of default. }{\b\insrsid7950008 \par }{\b\insrsid2694447\charrsid7950008 c) To provide a post dated cheque as further security. }{\b\insrsid7950008 \par }{\insrsid2694447\charrsid7950008 The respondent fulfilled}{\insrsid7950008 the above three requirements. \par }{\insrsid2694447\charrsid7950008 In December 1996 it appears a misunderstanding occurred between the respondent and appellant and they fell }{\insrsid7950008\charrsid7950008 apart}{\insrsid2694447\charrsid7950008 . The new and last pre-financing agreement between them was on 9/11/96 Exh. 22 for a maximum of Ug. Shs. 80 million. According to the responden}{\insrsid7950008 t from 9/11/96 he was advanced with }{\insrsid2694447\charrsid7950008 various sums of money below the value of the security cheque shs. 80.000.000/}{\insrsid7950008 =}{\insrsid2694447\charrsid7950008 and he correspondingly delivered all}{\insrsid7950008 the coffee that was due. For al}{\insrsid2694447\charrsid7950008 l the period the respondent was advanced with money, he made post-dated cheques as security. He never paid back in cash but in kind, that is by delivering coffee. }{\insrsid7950008 \par }{\insrsid2694447\charrsid7950008 Further, the respondent claimed that he was forced to sign two acknowledgments of indebtedness dated 20th and 21st December 1996. He was subsequently handed to the police for prosecution, on the dishonoured }{ \insrsid7950008\charrsid7950008 cheque;}{\insrsid2694447\charrsid7950008 he allegedly fraudulently bounced on the appellant. He was later charged and prosecuted under }{\b\insrsid2694447\charrsid7950008 S. 385 (1}{\b\insrsid7950008\charrsid7950008 ) (}{ \b\insrsid2694447\charrsid7950008 b) of The Penal Code Act. }{\insrsid2694447\charrsid7950008 He was convicted and sentenced to 2 years imprisonment by Magistrate\rquote s Grade 1 Buganda Road Court. He was, however, acquitted on appeal after he had}{ \insrsid7950008 served 8 months imprisonment. \par }{\insrsid2694447\charrsid7950008 On the other hand it was the appellant\rquote s case that they had agreed to finance the respondent on a revolving basis. }{\insrsid7950008\charrsid7950008 Sometime}{\insrsid2694447\charrsid7950008 in 1996 the respondent failed to deliver coffee or pay back sums of money advanced to him by the appellant. The appellant, hence, decided to enforce the secur}{\insrsid7950008 ities given to it. It first }{\insrsid2694447\charrsid7950008 banked the cheque worthy shs. 80 million which was dishonoured. When the said cheque bounced, the appellant decided to take ov}{\insrsid7950008 er the respondent\rquote s nightclub. \par }{\insrsid2694447\charrsid7950008 Further the respondent signed an agreement Exh. D24 to acknowledge he owed money to the appellant and had presented a cheque which was unpaid. He also signed another agreement Exh. D 25 to acknowledge his total indebtness to the appellant. When the respondent failed to either supply coffee or refund the cash which had been advanced to hi}{\insrsid7950008 m, the appellant handed him \line }{ \insrsid2694447\charrsid7950008 over to the police and had him prosecuted. On his release the respondent filed this suit against the appellant in the High Court. The complaints in his plaint included wrongful arrest, malicious}{\insrsid7950008 }{ \insrsid2694447\charrsid7950008 prosecution and defamation. He also ma}{\insrsid7950008 de a claim for financial loss. \par }{\insrsid2694447\charrsid7950008 The appellant, too, filed a counter claim for shs. 87.215.051/= together with general damages for br}{\insrsid7950008 each of contract and costs. }{\insrsid2694447\charrsid7950008 The counterclaim w}{\insrsid7950008 as disputed by the respondent. \par }{\insrsid2694447\charrsid7950008 At the close of both the appellant and respondent\rquote s cases the learned trial judge entered judgment for the respondent and awar}{\insrsid7950008 ded him the following reliefs. \par }{\b\insrsid2694447\charrsid7950008 (i) shs- 11.550.000/= for legal fees in the High}{\b\insrsid7950008 Court and Magistrate\rquote s Court. \par }{\b\insrsid2694447\charrsid7950008 (ii) shs- 75.000.000/= for loss of income from the night club. }{\b\insrsid7950008 \par }{\b\insrsid2694447\charrsid7950008 (iii) Shs- 20.000.}{\b\insrsid7950008 000/ for malicious prosecution \par }{\b\insrsid2694447\charrsid7950008 (iv) Shs- 1.000.000/= for}{\b\insrsid7950008 injury to the reputation and \par }{\b\insrsid2694447\charrsid7950008 (v) Shs- 10.000.000/= for the tre}{\b\insrsid7950008 spass damage to the night club \par }{\b\insrsid2694447\charrsid7950008 (vi) Order to return Kasisir}{\b\insrsid7950008 a Night Club to the respondent \par }{\b\insrsid2694447\charrsid7950008 (vii) Permanent injunction against further trespass against Kasisira club. }{\b\insrsid7950008 \par }{\insrsid2694447\charrsid7950008 The learned trial judge, however, pointed out to the appellant that as for the securities given }{\insrsid7950008 to it by the respondent for }{\insrsid2694447\charrsid7950008 securing pre\emdash financing agreement, it was free to enforce them in accordance with the law. The appellant was ordered to pay the costs of the suit and counterclaim. The rate of interest was fixed at 20% p.a from the date of judgment till payment in full.}{ \insrsid7950008 \par }{\insrsid2694447\charrsid7950008 Aggrieved by the judgement and orders of the High Court the appellant instructed its counsel, Mr. Shonubi, to file this appeal. The memorandum of appeal contains the following seven grounds: }{\insrsid7950008 - \par }{\b\insrsid2694447\charrsid7950008 1. The learned, trial judge erred in law and fact when he relied on wrongly recorded evidence of one of the appellant\rquote s witness one Miranda Jane Bowser (Ms) DW2 the consequenc}{\b\insrsid7950008\charrsid7950008 e of which caused or mistrial. \par }{\b\insrsid2694447\charrsid7950008 2. The learned trial judge misdirected himself as t}{\b\insrsid7950008\charrsid7950008 o the law governing mortgages. \par }{\b\insrsid2694447\charrsid7950008 3. The learned trial judge misdirected himself on the facts and the law regarding bo}{\b\insrsid7950008\charrsid7950008 unced cheques and postdated }{\b\insrsid2694447\charrsid7950008 cheques and cheques}{ \b\insrsid7950008\charrsid7950008 which are issued as security. \par }{\b\insrsid2694447\charrsid7950008 4. The learned trial judge misdirected himself as to the facts and the law governin}{\b\insrsid7950008\charrsid7950008 g signed documents and duress. \par }{\b\insrsid2694447\charrsid7950008 5. The learned trial judge misdirected himself on the facts}{\b\insrsid7950008\charrsid7950008 and law regarding defamation. \par }{\b\insrsid2694447\charrsid7950008 6. The learned trial judge erred in law and facts, when }{\b\insrsid7950008\charrsid7950008 he }{\b\insrsid2694447\charrsid7950008 failed to appraise properly all the evidence adduced in the suit which caused him to arrive at a wrong conclusion, had he to have appraised properly all the}{\b\insrsid7950008\charrsid7950008 }{\b\insrsid2694447\charrsid7950008 evidence on re cord he would have fou}{\b\insrsid16602981 nd in favour of the appellant. \par }{\b\insrsid2694447\charrsid7950008 7(i). The learned trial judge erred in law and fact when he allowed a sum of shs- 1}{\b\insrsid7950008\charrsid7950008 1.550.000/= as legal fees when }{\b\insrsid2694447\charrsid7950008 there was no evidence to show that that money had been paid out by the respondent who confirmed in evidence that he had paid shs. 2 million only against the }{\b\insrsid16602981\charrsid7950008 l}{\b\insrsid16602981 awyer\rquote s fee note. \par }{\b\insrsid2694447\charrsid7950008 (ii) The learned trial judge erred in law and fact when he awarded a sum of shs. 75.000.000/= for loss of earnings from property which had been voluntarily surrendered by the respondent to the }{\b\insrsid16602981 appellant and where no loss as }{\b\insrsid2694447\charrsid7950008 such had been}{\b\insrsid16602981 proved. \par }{\b\insrsid2694447\charrsid7950008 (iii) The learned trial judge}{\b\insrsid16602981 erred in law and fact when he }{\b\insrsid2694447\charrsid7950008 awarded shs. 20.000.000/= to the respondent for malicious prosecution when there were valid reasons to justify the arrest prosecution and detention and where no loss as such was pro}{\b\insrsid16602981 ved. \par }{\b\insrsid2694447\charrsid7950008 (iv) The learned trial judge erred in law and fact when he awarded shs. 1.000.000/= to the respondent for injury to his reputation wh}{\b\insrsid16602981 en his arrest, prosecution and }{ \b\insrsid2694447\charrsid7950008 detention were justified and n}{\b\insrsid16602981 o such injury had been proved. \par }{\b\insrsid2694447\charrsid7950008 (v) The learned trial judge erred in law and fact when he awarded shs. 10.000.000/= for trespass yet the appellant occupied the respondent\rquote s property by }{\b\insrsid2694447\charrsid7950008 consent. Counsel prayed court to allow the appeal set aside the judgment and orders of the trial court a\'e1d grant the fo}{\b\insrsid16602981 llowing reliefs. \par }\pard \s15\qj \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\ipgp1\pararsid16602981 {\b\insrsid2694447\charrsid7950008 (a) Order to set asid}{\b\insrsid16602981 e the decree of the High Court \par (b) An order for a retrial or \par }{\b\insrsid2694447\charrsid7950008 (c) In the alternative to enter judgement for the }{\b\insrsid16602981 appellant for shs. 87.2 15.051 \par }{\b\insrsid2694447\charrsid7950008 (d) An or}{\b\insrsid16602981 der for fore closure be issued \par }{\b\insrsid2694447\charrsid7950008 (e) Costs to the appellant in}{\b\insrsid16602981 this Court and the High Court \par }{\b\insrsid2694447\charrsid7950008 (f) Any further relief }{\b\insrsid16602981 \par \par }{\insrsid2694447\charrsid7950008 Counsel for the appellant pro}{\insrsid16602981 posed to argue grounds 1 and 6 }{\insrsid2694447\charrsid7950008 together, 2 and 3 separately, 4 a}{\insrsid16602981 nd 5 together and eventually 7 }{ \insrsid2694447\charrsid7950008 last and separately. I also propose to adopt the same approach 20 when considering the submis}{\insrsid16602981 sions of both learned counsel. \par \par }{\b\ul\insrsid2694447\charrsid7950008 Grounds 1 and 6 }{\b\insrsid16602981 \par \par }{\insrsid2694447\charrsid7950008 As far as the appellant is concerned, its counterclaim against the respondent amounted to shs. 87.215.015/=. The said counterclaim was dismissed by the learned trial judge on the ground that it had not been proved. The gist of the appellant\rquote s complaint in }{\insrsid16602981\charrsid7950008 grounds}{\insrsid2694447\charrsid7950008 , 1 and 6 is that the learned trial judge did not properly evaluate the evidence which caused him to make wrong conclusions. He also misrec}{\insrsid16602981 orded some of the evidence. }{\insrsid2694447\charrsid7950008 The appellant is not challenging the record of proceedings but was only pointing out that there was misrecording by the judge. There was no need, therefore, to invoke }{ \b\insrsid2694447\charrsid7950008 Rule 86(8) of The Rules of the Court }{\insrsid2694447\charrsid7950008 as suggested by}{\insrsid16602981 counsel for the respondent. \par \par }{\insrsid2694447\charrsid7950008 Further, counsel pointed out that Kabula Auditor\rquote s Report was misunderstood by counsel f or the respondent. He explained that the indebtness complained of by the appellant relates to the year 1996. Accumulations leading up to shs. 87.215.015 million were incurred after the year 1995 and }{\insrsid16602981 the Kabula Auditors Report. }{ \insrsid2694447\charrsid7950008 Counsel also referred this Court to Exhibit D12 at page 237 of the record entitled \'93Advance }{\ul\insrsid2694447\charrsid7950008 Account\'94. }{\insrsid16602981 \par \par }{\insrsid2694447\charrsid7950008 Paragraph 4 which reads as follows:}{\insrsid16602981 \par }{\b\insrsid16602981\charrsid16602981 \'93The}{\b\insrsid2694447\charrsid16602981 seller also agrees}{\b\insrsid16602981\charrsid16602981 that his account as of to-day }{\b\insrsid2694447\charrsid16602981 before the advanced sum is given stands at }{ \b\insrsid2694447\charrsid16602981 zero. }{\b\insrsid2694447\charrsid16602981 Any discrepancies raised over the outstanding balance have now been resolved to the seller\rquote s}{\b\insrsid2694447\charrsid7950008 full satisfaction by his own accountants Kabula & Co of Mityana\'94. }{\b\insrsid16602981 \par \par }{\insrsid2694447\charrsid7950008 To counsel, this was a clear manifestation that no money was owed to the respondent. He submitted, that it was also a confirmation that t he accounts were correct as presented but not as found by the learned trial judge. In a nutshell, the contention of the appellant is that it was entitled to payment of the counterclaim by the respondent and}{\insrsid16602981 did not owe any money to him. \par \par }\pard \s15\qj \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\ipgp1\pararsid16127975 {\insrsid2694447\charrsid7950008 For the responden t, it was submitted by his counsel that on the 30 evidence before the trial judge th}{\insrsid16602981 e counterclaim was not proved. }{\insrsid2694447\charrsid7950008 He rightly dismissed it with costs. Counsel argued that the evidence of DW1, Paulo Mugambwa and DW2, Mrs. Miranda Jane Browser, stating the respondent\rquote s }{\insrsid16127975 indebtness was contradictory }{\insrsid2694447\charrsid7950008 and therefore, unreliable. DW2, clearly, stated that the respondent did not owe any money to the appellant. Counsel for the respondent submitted that it was too late to challenge the recording of the evidence particularly in view of the provisions of }{ \b\insrsid2694447\charrsid7950008 Rule 86(8) of the Rules of this }{\insrsid2694447\charrsid7950008 Court which read as follows: }{\insrsid16127975 - \par \par }\pard \s15\qj \li576\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin576\itap0\ipgp1\pararsid16127975 {\b\insrsid2694447\charrsid7950008 \'93 Each copy of the record of appeal shall be certified to be correct by the appellant or any person entitled under rule 22 to appear on his or her behalf\'94. }{\b\insrsid16127975 \par }\pard \s15\qj \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\ipgp1\pararsid16127975 {\b\insrsid16127975 \par }{\insrsid2694447\charrsid7950008 As counsel at page 1 of the record of appeal certified that the record of appeal was correct, it must be taken as it is. The proper inference for Mr. Nkuriziza is either that the witness was unreliable or was not telling the truth. Further, when the post dated cheque, the respondent}{\insrsid16127975 had given to the appellant }{\insrsid16127975\charrsid7950008 bounced;}{\insrsid2694447\charrsid7950008 he was under duress made to sign two agreements of indebtness on 20th and 21st December 1996 in the presence of the police. The respondent, although believed may have owed the appellant some money, had expected to have reconciliation of accounts done as indic}{\insrsid16127975 ated by his own admission that \par \par }\pard \s15\qj \li576\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin576\itap0\ipgp1\pararsid16127975 {\b\insrsid2694447\charrsid7950008 \'93I believe I might owe them some money since we have not sat with them to discuss\'94. }{ \b\insrsid16127975 \par }\pard \s15\qj \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\ipgp1\pararsid16127975 {\b\insrsid16127975 \par }{\insrsid2694447\charrsid7950008 To counsel for the respondent, the}{\insrsid16127975 above statement tallied with}{\insrsid2694447\charrsid7950008 the finding of the learned trial j}{\insrsid16127975 udge that the counterclaim was }{ \insrsid2694447\charrsid7950008 not proved. In his opinion, instead of reporting the matter to the police and prosecuting the respondent under }{\b\insrsid2694447\charrsid7950008 S.385 (1)(b) of the Penal Code Act }{\insrsid2694447\charrsid7950008 for the bounced cheque, the appellant should have proceeded under the proper p}{\insrsid16127975 rocedure laid down under The }{\insrsid2694447\charrsid7950008 Mortgage Decree. The appellant did not enforce the securities in accordance with the law which the learned trial judge considered detrimental to}{\insrsid16127975 the appellant\rquote s counterclaim. \par \par }{\insrsid2694447\charrsid7950008 I have had a careful perusal and con}{\insrsid16127975 clusion of all the arguments }{\insrsid2694447\charrsid7950008 advanced by both counsel as w}{\insrsid16127975 ell as the record and relevant }{ \insrsid2694447\charrsid7950008 provisions of the law. As the first appellate court we have a duty under }{\b\insrsid2694447\charrsid7950008 Rule 29 of The Rules of }{\insrsid2694447\charrsid7950008 this Court to appraise the evidence on record and come out with our own conclusions on the issue or issues before court. There is documentary evidence to show that shs. 80 million was advanced to the respondent in accordance with the pre-financing agreeme nt. There is also evidence that confirms some other small amounts paid to the respondent which made up the}{\insrsid16127975 final figure of shs. 87.215.0}{\insrsid2694447\charrsid7950008 15/= claimed in the counterclaim. In any case the respondent does n}{\insrsid16127975 ot }{\insrsid2694447\charrsid7950008 dispute the advance of shs. 80 million and the post dated cheque in that sum which bounced on presentation to the bank. There is no doubt the respondent must have been indebted to the appellant at that time for that amount. I, however, agree with counsel for the respondent that the cheque had been deposit ed with the appellant as security, for a loan in cash to ena}{\insrsid16127975 ble the respondent buy coffee. \par \par }{\insrsid2694447\charrsid7950008 It is true there were some discrepancies which were admitted by counsel for the appellant but they were min}{\insrsid16127975 or in my view. In any }{\insrsid2694447\charrsid7950008 case they were satisfactorily expla ined away. Further, as rightly pointed at by Mr. Shonubi, there were also similar contradictions in the respondent\rquote s case which the appellant treated i}{\insrsid16127975 n the same way and ignored. \par \par }{\insrsid2694447\charrsid7950008 With regard to the observation by the learned trial judge that due to non compliance with the laid down law namely }{\b\insrsid2694447\charrsid7950008 sections 7 and 8 of the Mortgage Decree }{ \insrsid2694447\charrsid7950008 the appellant failed to determine the correct amount, this was satisfactorily answered by counsel. Moreover, counsel for the appellant a}{\insrsid16127975 rgued that all the evidence }{\insrsid2694447\charrsid7950008 including the respondent\rquote s signature showed that the respondent owed shs 87.205.015/= to the appellant. He again pointed out that as much as a secured loan was shs. 80 million the cumulative amount owed by the respondent vary on daily basis. It }{ \insrsid16127975\charrsid7950008 cannot}{\insrsid2694447\charrsid7950008 be disputed, the refore, that at least the respondent owed shs. 80 million to the appellant for which he had issued the bounced cheque. I cannot be persuaded to believe that the respondent would have written out that cheque and deposited it as security if he had delivered all the coffee due. On a close examination of the learned trial judge}{\insrsid16127975 \rquote s evaluation, it comes out }{\insrsid2694447\charrsid7950008 clearly that the respondent apparently does not dispute the indebtedness as such. All that he says is that the figure was }{\insrsid16127975 not determined and not proved. \par \par }{\insrsid2694447\charrsid7950008 I am inclined to accept Mr. Shonubi\rquote s submission that had the learned trial judge properly appraised the evidence he would have reached a different decision. He would have found that the respondent was indebted to the appellant. Here I am fortified by the learned trial judge\rquote s concluding rema}{\insrsid16127975 rks on the counterclaim that: \par }\pard \s15\qj \li576\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin576\itap0\ipgp1\pararsid16127975 {\insrsid2694447\charrsid7950008 \line }{\b\insrsid2694447\charrsid7950008 \'93 I must, however, point out that so far as the securities deposited with the defendant to secure the pre}{\b\insrsid16127975 -}{\b\insrsid2694447\charrsid7950008 financing agreement, the defendant is free to enforce them in accordance with the law.\'94 }{ \b\insrsid16127975 \par }\pard \s15\qj \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\ipgp1\pararsid16127975 {\b\insrsid16127975 \par }{\insrsid2694447\charrsid7950008 This statement confirms liability. If as he had found, the respondent was not indebted to the appellant, why did he not order for the return of the securities to the }{\insrsid16127975 respondent but }{ \insrsid2694447\charrsid7950008 advised the appellant to keep th}{\insrsid16127975 em and use them to recover its }{\insrsid2694447\charrsid7950008 claims. The appellant is at least entitled to recover shs. 80 million from the respondent. I}{ \insrsid16127975 n the premises grounds 1 and 6 must succeed. \par \par }{\b\ul\insrsid2694447\charrsid16127975 Ground }{\b\ul\insrsid2694447\charrsid16127975 2 }{\b\insrsid16127975\charrsid16127975 \par }{\insrsid2694447\charrsid7950008 With regard to ground 2, it was contended on behalf of the appellant that the learned judge was mistaken that there was foreclosure in this case when there was not. The prayer in the counterclaim asks for forecl}{ \insrsid16127975 osure as an alternative. The}{\insrsid2694447\charrsid7950008 procedure adopted in this case was different from the foreclosure of mortgages defined by the learned trial judge, instituted by way of a plaint or originating summons. Counsel agreed that the procedure expounded by the learned trial judge was not wrong. However, in the instant case the appellant took possession of the security by virtue of agreement under Exh. D 24 and Ex D25 but not by the way of foreclosure of the mortgage in accord}{\insrsid16127975 ance with The Mortgage Decree. \par \par }{\insrsid2694447\charrsid7950008 In accordance with the respondent\rquote s consent in the agreement 30 Exh. D24, counsel for the appe}{\insrsid16127975 llant argued that there was no }{\insrsid2694447\charrsid7950008 trespass committed by the appellant. It was invited to the land. The question of Section 2 of The Mortgage Decree did not arise. This Court was referred to the case of }{\b\insrsid2694447\charrsid7950008 Barclays Bank }{\b\insrsid16127975\charrsid7950008 vs.}{\b\insrsid2694447\charrsid7950008 Gulu Millers Ltd 1959 EA 540 }{\insrsid2694447\charrsid7950008 where the Court of Appeal of Uganda held that }{\b\insrsid2694447\charrsid7950008 \'93the issue of a plaint to enforce an equit able mortgage would be sufficient notice to satisfy the requirements\'94. }{\insrsid2694447\charrsid7950008 As conceded by counsel for appellant, the learned trial judge stated the correct pos}{\insrsid16127975 ition of the law relating }{ \insrsid2694447\charrsid7950008 to foreclosure of mortgages. He also conceded that the learned judge rightly found }{\insrsid16127975 that there was no foreclosure. \par \par }{\insrsid2694447\charrsid7950008 For the respondent it was argued that even if there was no foreclosure in accordance with the provisions of The Mortgage Decree, still taking possession in the manner it was done was unl}{\insrsid16127975 awful and mounted to trespass. \par \par }{\insrsid2694447\charrsid7950008 I accept the submission of counsel that the learned trial judge cannot be faulted on his finding on the d}{\insrsid16127975 efinition of foreclosure of }{\insrsid2694447\charrsid7950008 mortgage. The appellant should have complied with the provisions of the relevant provisions of the law whatever method it chose. However, according to its counsel, it had not intended to apply for the foreclosure of the mortgage at that stage. It decided to take mere possession in accordance with the respondent\rquote s consent under Exh. D24. Be that as it may, even if the act of taking possession was not done in accordance with the laid down procedure the respondent was still indebted to the appellant. }{\insrsid16127975 \par }{\insrsid2694447\charrsid7950008 My concluding observation is}{\insrsid16127975 that although there was non-}{\insrsid2694447\charrsid7950008 compliance with the laid down pro}{\insrsid16127975 cedure to foreclose a mortgage }{ \insrsid2694447\charrsid7950008 or to take possession of the land in accordance with the law, that act was not of much consequence except with regard to the damage caused to the property and the }{\insrsid16127975 failure by the appellant to }{ \insrsid2694447\charrsid7950008 mitigate costs. It is, for example, hard to find the reason for l ocking up the nightclub, Kasisira, instead of operating it and make accountability. Clearly, the omission led to financial loss. A pending suit could not stop operation of the nightclub as it was suggested by }{\insrsid16127975 counsel for the appellant.

\par \par }{\insrsid2694447\charrsid7950008 However, I do not agree that the appellant committed trespass because there was an agreement between the parties on the matter. I have not been able to find evidence to support the learned trial judge\rquote s finding that the respondent was through undue influence, and duress for ced to sign it and that in fact was done in a high handed manner. I, however, agree that the respondent was in a bad financial state but did not dispute the indebtness. This of course did not give the appellant liberty to violate the respondent\rquote s other righ}{\insrsid16127975 ts. This ground must fail. \par \par }{\b\ul\insrsid16127975 Grounds 3 and 7(iii}{\b\ul\insrsid2694447\charrsid7950008 ) }{\b\insrsid16127975 \par }{\insrsid2694447\charrsid7950008 With regard to }{\insrsid2694447\charrsid16127975 ground 3, }{\insrsid2694447\charrsid16127975 I }{\insrsid2694447\charrsid16127975 do not}{\insrsid2694447\charrsid7950008 accept the submission of counsel for the appellant criticizing the trial judge for misdirecting himself on the law regarding bounced cheques and post dated cheques and cheques}{\insrsid12480797 which are issued as security. }{ \insrsid2694447\charrsid7950008 In view of the pre-financial agreement between the appellant and the respondent the bounced cheque did not fall under the ambit of S. }{\b\insrsid2694447\charrsid7950008 385(1) of The Penal Code Act }{\insrsid12480797 which reads as follows: \par \par }\pard \s15\qj \li576\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin576\itap0\ipgp1\pararsid12480797 {\b\insrsid2694447\charrsid7950008 \'93Any person }{\b\insrsid12480797\charrsid7950008 including}{ \b\insrsid2694447\charrsid7950008 a}{\b\insrsid12480797 public officer in relation to }{\b\insrsid2694447\charrsid7950008 public offic}{\b\insrsid12480797 er in relation to public funds \par }{\b\insrsid2694447\charrsid7950008 (b) issues any cheque in respect of any account with any bank when he or s he has no reasonable ground, proof of which shall be on him or her to believe that there are funds in the account to pay the amount specified on the cheque within the normal course of banking business\'94. }{\b\insrsid12480797 \par }\pard \s15\qj \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\ipgp1\pararsid12480797 {\insrsid12480797 \par }{\insrsid2694447\charrsid7950008 In the context of the pre-financing agreement, the bounced 10 cheque was offered and deposited with the appellant as security. This was acknowledgment of a loan advanced to him on the agreement between the parties. It was post dated because he did not have the funds. In the present case the respondent \rquote s po st dated cheque was not a representation that on that date there would be sufficient funds to repay the loan of shs. 80 million. I am mindful of the two documents signed by him admitting issuing the cheque fraudulently, those were written after he had fai led to deliver coffee and had no cash either. He, apparently, was under a precarious financial posi}{\insrsid12480797 tion. The respondent\rquote s case }{\insrsid2694447\charrsid7950008 did not come under }{\b\insrsid2694447\charrsid7950008 S. 385 (1}{ \b\insrsid12480797\charrsid7950008 ) (}{\b\insrsid2694447\charrsid7950008 b) (supra) }{\insrsid2694447\charrsid7950008 because the repayment was not in cash but in kind. He repaid by delivering coffee equiva lent to the amount of cash advanced to him. There had never been any def}{\insrsid12480797 ault until the bounced cheque. \par \par }{\insrsid2694447\charrsid7950008 It cannot, therefore, be correct to say that the respondent fraudulently bounced the cheque for 80 million shillings on the appellant. I, therefore, re ject the submission of the counsel for the appellant that the appellant had reasonable and probable cause to report the matter to the po}{\insrsid12480797 lice. The respondent had not}{\insrsid2694447\charrsid7950008 issued the said cheque to bounce but as security to acknowledge the loan advanced to him. When issuing the cheque the respondent did not make representation to the appellant that there were funds on the account.}{\insrsid12480797 The agreement between them }{\insrsid2694447\charrsid7950008 was to deliver coffee. Even if the cheque was not dated that per se would not be evidence of fraud. When iss uing the cheque both parties knew that there were no funds on his bank account. This position is in my view similar to that of a post dated cheque where in the case of }{\b\insrsid2694447\charrsid7950008 Abdallah }{\b\insrsid12480797\charrsid7950008 vs.}{ \b\insrsid2694447\charrsid7950008 Republic 1970 E. A 657 }{\insrsid12480797 it was}{\insrsid2694447\charrsid7950008 held inter alia that }{\b\insrsid2694447\charrsid7950008 \'93the giving of a post dat ed cheque is not representation that there are sufficient funds to meet the cheque\'94. }{\b\insrsid12480797 \par \par }{\insrsid2694447\charrsid7950008 The learned trial judge stated the correct position of the law relating to bounced, post dated cheques and those deposited for security. He, therefore, came to a correct decision that, the appellant should not have treated the case of the bounced cheque as a criminal case under S. }{\b\insrsid2694447\charrsid7950008 385 (1}{\b\insrsid12480797\charrsid7950008 ) (}{\b\insrsid2694447\charrsid7950008 b). }{ \insrsid2694447\charrsid7950008 Malicious prosecution was proved. There was no justification for handing the }{\insrsid12480797 matter over to the police. \par \par }{\insrsid2694447\charrsid7950008 With regard to the quant um, the appellant is contesting the award of shs. 20.000.000/. From my observation above I do not accept the submissions of counsel for the appellant that there were valid reasons for the arrest, prosecution and detention of the respondent. On the argumen ts relied on by counsel and as admitted by him, it is clear the appellant feared financial loss, realizing the precarious financial position the respondent was in and handed him over to the polic}{\insrsid12480797 e. As the record stands the }{ \insrsid2694447\charrsid7950008 three ingredients of malicious}{\insrsid12480797 prosecution were established. \par \par }{\insrsid2694447\charrsid7950008 They are as follows: }{\insrsid12480797 \par a) }{\b\insrsid2694447\charrsid7950008 the appellant instituted the proceedings }{\b\insrsid12480797 \par }{\b\insrsid2694447\charrsid7950008 b) withou}{\b\insrsid12480797 t reasonable or probable cause \par }{\b\insrsid2694447\charrsid7950008 c) the respondent suffered damages and the proceedings were terminated in his favour. }{\b\insrsid12480797 \par \par }{\insrsid2694447\charrsid7950008 The appellant, despite the unders}{\insrsid12480797 tanding between the parties, }{\insrsid2694447\charrsid7950008 handed the respondent to t}{\insrsid12480797 he police, had him charged and }{ \insrsid2694447\charrsid7950008 prosecuted. In view of the previous dealings and relationship between the parties the appellant had no probable and reasonable cause to take that action. There is no doubt the respondent suffered damages as will be seen including serving a sentence of imprisonment. The proceedings were terminated in his favour when he was acquitted by the High Court. I reject counsel\rquote s submission that the respondent guaranteed the appellant that the money would be there. The respondent in my view did not commit any offence, he w}{\insrsid12480797 as just desperate due to the}{\insrsid2694447\charrsid7950008 bad financial situation the appellant admitted, he was in. This was clearly proved by the criminal pro ceedings which were determined in his favour. I agree it was actuated by malice which is the basis of this suit. Relevant authorities to this point include }{\b\insrsid2694447\charrsid7950008 Egbema }{\b\insrsid12480797\charrsid7950008 vs.}{ \b\insrsid2694447\charrsid7950008 West Nile District Administration 1972 EA 60 }{\insrsid2694447\charrsid7950008 and }{\b\insrsid2694447\charrsid7950008 Mbowa }{\b\insrsid12480797\charrsid7950008 vs.}{\b\insrsid12480797 East Men}{ \b\insrsid2694447\charrsid7950008 go Administration 1972 EA 352, Kateregga }{\b\insrsid12480797\charrsid7950008 vs.}{\b\insrsid2694447\charrsid7950008 Attorney General 1973 EA 287. }{\b\insrsid12480797 \par \par }{\insrsid2694447\charrsid7950008 In view of the aforesaid observations, the award of shs. 20.000.000/= was not excessive. Eve}{\insrsid12480797 n if there was no duress as }{\insrsid2694447\charrsid7950008 described by the learned trial judge, the respondent suffered considerably. At the time of signing the two agreements Ex. D24 and 25, he saw the threat of arrest. He was subsequently arrested, charged with issuing a fr}{\insrsid12480797 audulent cheque, prosecuted }{\insrsid2694447\charrsid7950008 convicted, and sentenced to 2 years\rquote imprisonment. He served 8 months\rquote imprisonment. On lea ving prison he found his nightclub locked up and in a sorry state. I would uphold the award of shs.}{\insrsid12480797 20 million as appropriate. \par \par }{\insrsid2694447\charrsid7950008 The criticism on ground 4, that the trial judge misdirected himself as to the facts and the law governing signed doc uments under duress, I agree with some of the findings of the trial judge but not entirely. I differ from him and I would refrain from holding that duress was used to force the respondent to sign Exh. D.24 & 25. It is true, however, that, considering his dealings with the appellant the matter should not have been handled in such a harsh manner. Knowing that the respondent was indebted to the appellant he had no option but to admit the indebtness. It is true he was in a pr}{\insrsid12480797 ecarious financial position }{\insrsid2694447\charrsid7950008 and as s uch had no financial bargaining power but that cannot in my view be described as duress. He owed the appellant money. Besides, as it was rightly submitted by counsel for the appellant, there was no proof of the presence of a policeman. The agreements talk

of handing him over to the police in default which was subsequently done. I concede that the appellant was attempting to protect its genuine and legitimate business and commercial interests. However, considering the dealings between them for all those yea rs, the appellant should not have reported the matter to police and treated the }{\insrsid12480797 respondent the way he was. \par \par }{\b\insrsid2694447\charrsid7950008 On grounds 5 and 7(iv), }{\insrsid2694447\charrsid7950008 the gist of the complaint by the appellant is that the learned trial judge misdirected himself on the facts and law relating to defamatio}{\insrsid12480797 n and reputation. The trial }{\insrsid2694447\charrsid7950008 judge was faulted for considering reputation in connection to foreclosure, when in fact there has never been any. The respondent\rquote s nightclub was lawfully possessed with the consent of the respondent. Counsel argued that defamation of himself or business could not arise. The alle}{\insrsid12480797 gation that some defamatory }{\insrsid2694447\charrsid7950008 words were uttered during the taking over of the nightclub cannot be true. This is because PW3, Kefa Nyanzi, testified that there was no one present when they took over. There was nobody to utter those words to. Further, counsel argued that the statement contained in the plaint, paragraph 14, cannot be described as defamatory since it is true. The respondent issued a bounced cheque. Court was referred to }{ \b\insrsid2694447\charrsid7950008 \'93Arnold }{\b\insrsid12480797\charrsid7950008 vs.}{\b\insrsid2694447\charrsid7950008 Hattonley (1908) 2K. B. 151 }{\insrsid12480797 reported in I}{\insrsid2694447\charrsid7950008 ntroduction to the law of Tort by }{ \b\insrsid2694447\charrsid7950008 Syed Shah Zeyaur Rahman }{\insrsid2694447\charrsid7950008 at pag}{\insrsid12480797 e 51 where it was held that \par \par }\pard \s15\qj \li576\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin576\itap0\ipgp1\pararsid12480797 {\b\insrsid2694447\charrsid7950008 \'93 If the defendant can prove that defamatory statement is true he has an absolute defence, however malicious or spiteful he may have seen. It is not necessary that the defendant should justify the truth of every word used so long as the whole statement is substantially true.\'94 }{\b\insrsid12480797 \par }\pard \s15\qj \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\ipgp1\pararsid12480797 {\b\insrsid12480797 \par }{\insrsid2694447\charrsid7950008 In the instant case counsel argued that the respondent\rquote s reputation was not proved or shown to be aff ected. The evidence showed that the alleged reputation of the respondent was connected with money. It reduced when his}{\insrsid12480797 financial position waned. \par \par }{\insrsid2694447\charrsid7950008 For the respondent, his counsel replied that the fundamental question the trial judge was }{\insrsid12480797 considering was whether the }{\insrsid2694447\charrsid7950008 reputation of the respondent and that of his business was injured by the acts of the appellant. To illustrate this point, when the respondent was released from prison people kind of shunned him. He was called a crooked person who had stolen shs. 8 0 million from the appellant. His c}{\insrsid12480797 ustomers abandoned him. The }{\insrsid12480797\charrsid7950008 respondent}{\insrsid2694447\charrsid7950008 was a famous man in the area so his good name was tarnished. He had to leave Mityana because after the imprisonment he was no longer trusted by any customer. He was forced to move to Mubende. A part from business the respondent was a very good Christian and used to give donations to Church. As far as the respondent is concerned, the learned trial judge rightly fou}{\insrsid12480797 nd that defamation was proved. \par \par }{\insrsid2694447\charrsid7950008 On the evidence on record the respondent\rquote s reputation was tarnished. The circumstances }{\insrsid12480797 in which the respondent was }{\insrsid2694447\charrsid7950008 imprisoned speak for themselves. They had to affect his reputation. }{\insrsid12480797\charrsid7950008 Nobody}{\insrsid2694447\charrsid7950008 would respect a businessman or anybody who was arrested, charged with fraudulently issue of a cheque, or theft, convicted and imprisoned. There is undisputed evidence that his customers deserted his nightclub. He was forced to remove himself from Mityana to Mubende. As the evidence stands on record defamatory statements about}{\insrsid12480797 the respondent were uttered. \par \par }{\insrsid2694447\charrsid7950008 Although it is true the respondent }{\insrsid12480797 issued a bounced cheque, the }{\insrsid2694447\charrsid7950008 appellant did not have to handle }{\insrsid12480797 his case the way it did. There }{ \insrsid2694447\charrsid7950008 was no evidence of fraud or intention to convert 80 million to his own use. There was no justification for prosecuting him. Their money could have been recovere}{\insrsid12480797 d through other respectable }{ \insrsid2694447\charrsid7950008 ways. I am unable to fault the learned trial judge for the finding on the reputation of the respondent and business. The award of 1 million was also appropriate. Gro}{\insrsid12480797 und 7(iii) and (iv) must fail. \par \par }{\insrsid2694447\charrsid7950008 Lastly under ground 7, which h}{\insrsid12480797 as been partly dealt with the}{\insrsid2694447\charrsid7950008 appellant expressed dissatisfact}{\insrsid12480797 ion with the awards of damages }{ \insrsid2694447\charrsid7950008 given to the respondent, on the rest of the subheads and asked court to set them aside. }{\insrsid12480797 \par }{\insrsid2694447\charrsid7950008 The principles governing interference or rev iew of awards of damages by a trial court are well settled. It has to be shown that it was based on a wrong principle or it was inordinately high or low and in fact resulted in miscarriage of justice. These principles have been reiterated in a number of c ases including: }{\b\insrsid2694447\charrsid7950008 Mbogo and Another }{\b\insrsid12480797\charrsid7950008 vs.}{\b\insrsid2694447\charrsid7950008 Shah 1968 EA. 93 and Robert Chossens }{\b\insrsid12480797\charrsid7950008 vs.}{ \b\insrsid2694447\charrsid7950008 Attorney General C. A. No. 8 of 1999 (SCU). }{\b\insrsid12480797 \par \par }{\insrsid2694447\charrsid7950008 With regard to ground 7(i) the complaint by the appellant is that the learned trial judge }{\insrsid12480797 should not have awarded shs. 11}{\insrsid2694447\charrsid7950008 .550.000/= w ithout evidence that it had been paid. No documentary evidence was produced to prove payment of legal fees. In any case there was no malicious prosecution of the respondent. The respondent produced no receipts at all but only fee notes Exh. 5}{ \insrsid12480797 and 6 on page 213 and 214. \par \par }{\insrsid2694447\charrsid7950008 For the respondent, it was rightly conceded that special damages must be pleaded and proved. However, as it was rightly pointed out by counsel for the respondent production of receipts or documentary evidence is not the o }{\insrsid12480797 nly method of proof. In the }{\insrsid2694447\charrsid7950008 instant case the respondent in his testimony stated the amount required to meet he expenses incurred in connection with his defence both in the High}{\insrsid12480797 Court and magistrate\rquote s court. \par \par }{\insrsid2694447\charrsid7950008 I agree with counsel for the appella}{\insrsid12480797 nt that documentary evidence }{\insrsid2694447\charrsid7950008 especially receipts is very reliable}{\insrsid12480797 evidence of payment. However, }{ \insrsid2694447\charrsid7950008 it is not exclusive. In the instant case, the respondent\rquote s oral evidence of the money required. The trial judge who saw and heard him, believed his evidence. He saw his de meanour but we did not. In the circumstances I have no reason to interfere with his award. In }{\b\insrsid2694447\charrsid7950008 CA No. 10 of 2002(unreported) SCU Lutaya }{\b\insrsid12480797\charrsid7950008 vs.}{\b\insrsid2694447\charrsid7950008 Attorney General, }{\insrsid2694447\charrsid7950008 following with approval the decision in }{\b\insrsid2694447\charrsid7950008 Kampala City Council }{\b\insrsid12480797\charrsid7950008 vs.}{\b\insrsid2694447\charrsid7950008 Nakaye 1972 EA 446, the Supreme Court }{\insrsid2694447\charrsid7950008 gave some guidelines on the award of special damages. There is nothing to stop a court from}{\insrsid12480797 basing an award of special }{\insrsid2694447\charrsid7950008 damages on oral evidence if believed and found reliable}{\insrsid12480797\charrsid7950008 .}{\insrsid2694447\charrsid7950008 Such award was upheld by the }{\b\insrsid2694447\charrsid7950008 E. A Court of Appeal }{\insrsid2694447\charrsid7950008 in the case of }{\b\insrsid2694447\charrsid7950008 Kampala City Council }{\b\insrsid12480797\charrsid7950008 vs.}{\b\insrsid2694447\charrsid7950008 N}{\b\insrsid12480797 a}{\b\insrsid2694447\charrsid7950008 kaye 1972 EA 446. }{ \insrsid2694447\charrsid7950008 The court accepted oral evidence as to the plaintiff\rquote s loss and claim when she proved to cour}{\insrsid12480797 t that the receipts were lost. \par \par }{\insrsid2694447\charrsid7950008 Coming back to the present case, I find it similar to the two cases and for the same }{\insrsid15097605\charrsid7950008 reasons;}{\insrsid2694447\charrsid7950008 I would not interfere with the award given to the respondent for legal fees. It appears he convinced the court that shs. 11.550.000/= was the total fees he had to}{\insrsid15097605 pay to his advocate. \par \par }\pard \s15\qj \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\ipgp1\pararsid15097605 {\insrsid2694447\charrsid7950008 Another award of damages contested is shs.75 million for loss of earnings. Counsel complained t}{ \insrsid15097605 hat it was not based on any }{\insrsid2694447\charrsid7950008 documentary evidence but on Nansubuga\rquote s guessing. As far as counsel was concerned the trial judge did not properly exercise his discretion. The award of shs. 75 million was, hence, not justified. Further, counsel pointed out that damages for loss of earnings had to be specifically prov}{ \insrsid15097605 ed which was not done here. }{\insrsid2694447\charrsid7950008 It was wrong for the trial judge to award such a high sum of money in light of the evidence that when the appellant took over the club it was not funct}{\insrsid15097605 ioning and had been abandoned. \par \par }{\insrsid2694447\charrsid7950008 In reply, counsel for the respondent argued that shs. 75 million was awarded as general damages and not special damages. In any case he argued that it is permissible to award general damages for loss of earnings wher e special damages have no}{\insrsid15097605 t been specifically proved. \par \par }{\insrsid2694447\charrsid7950008 In this case there is evidence to show that the respondent was earning income from the nightclub. The respondent based his claim at the rate of shs. 3,620.0001= per month and interest at 20% p.a. There was also the oral evidence of Annet Nansubuga, PW2, to the effect that she used to sell drinks like, sodas or beer earnings from the nightclub. The learned trial judge examined in detail the sources of income in the respondent\rquote s nightclub. Clearly, there was evidence of financial loss but the witnesses and in particular Nansubuga were not sure of the figures. The learned trial judge decided, therefore,}{\insrsid15097605 to award the respondent }{ \insrsid2694447\charrsid7950008 general damages instead of special damages as PW2 had no access to the records which had been locked in the }{\insrsid15097605\charrsid7950008 appell}{\insrsid15097605 ant\rquote s access to the records. \par \par }{\insrsid2694447\charrsid7950008 With regard to the quantum in my view it was appropriate in the circumstances including the imponderables. The respondent was in prison, there is no way he would have properly managed his night club during that time. This Court was referred to the case of }{\b\insrsid2694447\charrsid7950008 Benedicto Musisi }{\b\insrsid15097605\charrsid7950008 vs.}{\b\insrsid2694447\charrsid7950008 Attorney General }{\b\insrsid2694447\charrsid15097605 1996 }{ \b\insrsid2694447\charrsid15097605 KAR }{\b\insrsid2694447\charrsid15097605 91}{\b\insrsid2694447\charrsid7950008 }{\insrsid15097605 where }{\insrsid2694447\charrsid7950008 Nyamuchoncho JA held t}{\insrsid15097605 hat \par \par }\pard \s15\qj \li576\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin576\itap0\ipgp1\pararsid15097605 {\b\insrsid2694447\charrsid7950008 \'93 The respondent is entitled to general damages as a consequence of the detention of his bus since he cannot prove his actual earnings.\'94 }{\b\insrsid15097605 \par }\pard \s15\qj \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\ipgp1\pararsid15097605 {\b\insrsid15097605 \par }{\insrsid2694447\charrsid7950008 This case is almost on all fours with the present one. The respondent had been imprisoned on the report of the appellant. Subsequently, his nightclub was taken over and locked up. No attempt was made to operate it with }{ \insrsid15097605 view of mitigating damages. }{\insrsid2694447\charrsid7950008 The award of shs. 75 millio}{\insrsid15097605 n was justified. It is upheld. \par \par }{\insrsid2694447\charrsid7950008 Another subhead of damages challenged is shs. 10.000.000/= for trespass to the respondent\rquote s nightclub. It was contended for the appellant that there was no trespass committed. T he occupation was by invitation under the agreement Exh. D 24. The nightclub had been offered as one of the securities. It was submitted that no damages to the propert}{\insrsid15097605 y was caused by the appellant. \par \par }{\insrsid2694447\charrsid7950008 In reply, counsel for the responde}{\insrsid15097605 nt argued that liability for }{\insrsid2694447\charrsid7950008 trespass is strict so that any }{\insrsid15097605 person entering on the land of }{ \insrsid2694447\charrsid7950008 another is sufficient ground for an action in trespass and neither mistake nor inadvert}{\insrsid15097605 ence will afford a defence. \par \par }{\insrsid2694447\charrsid7950008 Upon listening to the submissions of both }{\insrsid15097605\charrsid7950008 counsels}{\insrsid2694447\charrsid7950008 on this issue I am inclined to accept the submissions of the learned counsel for the appellant. The respondent having made an agreement in which he consented to giving possession to the appellant, he would be estopped to complain of t}{\insrsid15097605 respass. With respect, I do }{\insrsid2694447\charrsid7950008 not agree with the learned trial judge that the circumstances in which the appellant took possession of the nightclub amounted to trespass. This subhead must succeed. \line In the result I would allow the appeal in part and as Kitumba JA and Kavuma JA also agree, this appeal is allowed in part and judgment is hereby, entered in the terms and orders set out below: }{\insrsid15097605 - \par \par }{\insrsid2694447\charrsid7950008 A }{\b\insrsid2694447\charrsid7950008 (1) Awards and orders to the appellant }{\b\insrsid15097605 \par {\listtext\pard\plain\s15 \b\insrsid2694447\charrsid7950008 \hich\af0\dbch\af0\loch\f0 (i)\tab}}\pard \s15\qj \fi-720\li1080\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\ls1\adjustright\rin0\lin1080\itap0\ipgp1\pararsid15097605 { \b\insrsid2694447\charrsid7950008 The order of the High Court dismissing the count}{\b\insrsid15097605 erclaim is hereby set aside and }{\b\insrsid2694447\charrsid7950008 substit uted with judgment for the appellant against the respondent for special damages in the sum of shs}{\b\insrsid15097605 . 80 million (bounced cheque). \par {\listtext\pard\plain\s15 \b\insrsid2694447\charrsid7950008 \hich\af0\dbch\af0\loch\f0 (ii)\tab}}{\b\insrsid2694447\charrsid7950008 The award of shs. 10 million given to the respondent against the appellant for trespass and damage to the respondent \rquote s property is hereby }{\b\insrsid15097605\charrsid7950008 set }{\insrsid15097605\charrsid7950008 aside}{\b\insrsid15097605 . \par {\listtext\pard\plain\s15 \b\insrsid2694447\charrsid15097605 \hich\af0\dbch\af0\loch\f0 (iii)\tab}}{\b\insrsid2694447\charrsid15097605 The securities deposited with the appellant under Exh. D 24 & D 25 be retained by the appellant till payment of the outstanding debt.}{\b\insrsid15097605\charrsid15097605 \par {\listtext\pard\plain\s15 \b\insrsid2694447\charrsid15097605 \hich\af0\dbch\af0\loch\f0 (iv)\tab}}{\b\insrsid2694447\charrsid15097605 The appellant is at liberty to enforce the securities by way of foreclosure or any other m}{ \b\insrsid15097605\charrsid15097605 ode in accordance with the law \par }\pard \s15\qj \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\ipgp1\pararsid15097605 {\b\insrsid15097605\charrsid15097605 \par B (}{\b\insrsid2694447\charrsid15097605 2) The following awards of damages made by the trial court 10 in favour of the respondent against the ap}{\b\insrsid15097605\charrsid15097605 pellant are upheld. \par {\listtext\pard\plain\s15 \b\insrsid2694447\charrsid15097605 \hich\af0\dbch\af0\loch\f0 (i)\tab}}\pard \s15\qj \fi-720\li1080\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\ls2\adjustright\rin0\lin1080\itap0\ipgp1\pararsid15097605 { \b\insrsid2694447\charrsid15097605 Shs- 11.550.000/= being legal fees in the criminal proceedings in the High Court of }{\b\insrsid15097605\charrsid15097605 Uganda and Magistrate\rquote s Court. \par {\listtext\pard\plain\s15 \b\insrsid2694447\charrsid15097605 \hich\af0\dbch\af0\loch\f0 (ii)\tab}}{\b\insrsid2694447\charrsid15097605 Shs- 75.000.000/= being loss of income from the resp}{\b\insrsid15097605\charrsid15097605 ondent\rquote s Kasisira nightclub. \par {\listtext\pard\plain\s15 \b\insrsid2694447\charrsid15097605 \hich\af0\dbch\af0\loch\f0 (iii)\tab}}{\b\insrsid2694447\charrsid15097605 Shs- 20.000.000/ fo}{\b\insrsid15097605\charrsid15097605 r malicious prosecution \par {\listtext\pard\plain\s15 \b\insrsid2694447\charrsid15097605 \hich\af0\dbch\af0\loch\f0 (iv)\tab}}{\b\insrsid2694447\charrsid15097605 Shs- 1.000.000/}{\b\insrsid15097605\charrsid15097605 = for injury to the reputation \par }\pard \s15\qj \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\ipgp1\pararsid15097605 {\insrsid15097605 \par }{\insrsid2694447\charrsid7950008 The appellant is awarded \'bc of the costs and the respondent is given 3/4 of the costs on each award both in this Court and the court below with interest fixed at 20% p.a. from the date of }{\insrsid15097605 judgment till payment in full. \par \par }\pard \s15\qj \li0\ri0\sb100\sa240\sbauto1\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\ipgp1\pararsid15097605 {\insrsid2694447\charrsid7950008 \line }{\b\ul\insrsid2694447\charrsid7950008 JUDGEMENT OF C. N. B. KITUMBA, JA. }{ \b\insrsid15097605 \par }{\insrsid2694447\charrsid7950008 I have had the benefit of reading in draft the judgement of Hon. Mukasa}{\insrsid15097605 }{\insrsid2694447\charrsid7950008 Kikonyogo, }{\insrsid15097605 DCJ. I entirely agree with it. \par }{\insrsid2694447\charrsid7950008 However, I would like to make the following observations. The appellant\rquote s action of reporting the respondent to the police and initiating criminal proceedings against him for the bounced }{ \insrsid15097605\charrsid7950008 cheque}{\insrsid2694447\charrsid7950008 was to say the least, an abuse of legal process. The appellant was well aware that the respondent did not have money in the b}{\insrsid15097605 ank when he issued the cheque. }{ \insrsid2694447\charrsid7950008 The cheque was issued in good faith as a security for the debt. It was wrong for the appellant to waste police and the criminal court\rquote s time on matter that was purely a business transaction and civil. The learned trial judge was right to find the appellant liable for malicious prosecution and defamation and to }{\insrsid15097605\charrsid7950008 condemn}{\insrsid15097605 it in damages.

\par \par }{\b\ul\insrsid2694447\charrsid7950008 JUDGMENT OF S. B. K. KAVUMA, JA. }{\b\insrsid15097605 \par }{\insrsid2694447\charrsid7950008 I have had the benefit of reading in draft the judgment of Lady Justice 25 L. E. M. Mukasa-Kikonyogo, DCJ. I }{\insrsid15097605 concur and have nothing useful }{\insrsid2694447\charrsid7950008 to add.}{\insrsid15097605

\par }{\insrsid2694447\charrsid7950008 \line }{\insrsid15097605\charrsid7950008 Dated at Kampala this }{\insrsid15097605 8}{\super\insrsid15097605\charrsid15097605 th}{\insrsid15097605 day of February 2006. \par }\pard \s15\qj \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid15097605 {\insrsid15097605 \par }{\b\insrsid15097605\charrsid15097605 L. E. M. Mukasa \par HON. DEPUTY CHIEF JUSTICE \par }\pard \s15\ql \li0\ri0\sb100\sa240\sbauto1\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid15097605 {\b\insrsid15097605\charrsid15097605 C. N. B. Kitumba \line JUSTICE OF APPEAL \par }\pard \s15\ql \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid15097605 {\b\insrsid15097605\charrsid15097605 S. B. K. Kavuma \par JUSTICE OF APPEAL}{\b\insrsid15097605\charrsid15097605 \par }\pard\plain \qj \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid7950008 \fs24\lang1033\langfe1033\cgrid\langnp1033\langfenp1033 {\insrsid2694447\charrsid7950008 \par }}