[2024] UGHC 844

#### **THE REPUBLIC OF UGANDA,**

#### **IN THE HIGH COURT OF UGANDA AT FORT PORTAL**

### **CIVIL APPEAL NO. 037 OF 2023**

# **(ARISING FROM CIVIL SUIT NO. 44 OF 2021 BEFORE THE CHIEF MAGISTRATE'S COURT OF KYENJOJO AT KYENJOJO)**

# **MABALE GROWERS TEA FACTORY LTD :::::::::::::::::::: APPELLANT**

#### **VERSUS**

**BAMYAMOOTI SAM ::::::::::::::::::::: RESPONDENT**

#### **BEFORE HON. MR. JUSTICE VINCENT EMMY MUGABO**

#### **JUDGMENT**

This is an appeal against the judgement and decree of H/W Babu Waswa, the Magistrate Grade 1 of the Chief Magistrate's Court of Kyenjojo at Kyenjojo delivered on the 25th of May 2023 wherein he declared that the appellant company is indebted to the respondent to the tune of UGX. 1,417,000/= and awarded general damages of UGX. 3,000,000/=, interest, and costs of the suit to the respondent.

#### **Background**

The respondent filed Civil Suit No. 044 of 2021 against the appellant company for recovery of UGX. 1,517,000/= arising from breach of contract, interest of 20% thereon, general damages and costs of the suit.

The respondent's claim against the appellant company is that, between the years 2017 and 2018, he supplied green tea leaves to the defendant company to the tune of UGX. 1,517,000/= but the defendant company only

paid UGX. 100,000/=. Despite several demand notices, the defendant company refused to pay.

In his written statement of defence, the appellant company denied the respondent's claims and stated that it paid all the money due to the respondent arising out of the supply of green tea leaves through the respondent's driver, one Chappu Lawrence.

In his judgment, the trial magistrate decreed that the appellant is indebted to the respondent to the tune of UGX. 1,417,00/- and awarded general damages of UGX. 3,000,000/=, interest of 8% per annum on the decreed sum, and costs of the suit to the respondent.

Being dissatisfied with the decision of the learned trial magistrate, the appellant appealed to this court on the following grounds, as set out in the amended memorandum of appeal:

- 1. The trial magistrate erred in law and fact when it failed to evaluate the evidence on record by not considering the evidence of PW2, the evidence of defence witnesses, and the submissions of the respondent but entirely relied on the evidence of the respondent thereby reaching a wrong conclusion which has caused a miscarriage of justice otherwise he would have decided in favour of the respondent. - 2. The trial magistrate erred in law and fact when he declared that the appellant is indebted to the respondent in the sum of UGX. 1,417,000/= being the price of green leaf supplied in November 2017 and March 2018 by the respondent thereby occasioning a miscarriage of justice. - 3. The trial magistrate erred in law and fact when he awarded UGX 3,000,000/= to the respondent as general damages thereby occasioning a miscarriage of justice.

# **Representation and Hearing**

Mr. Mugabi Geofrey Kireru represented the appellant company whereas Mr. Wahinda Enock represented the respondent. The hearing proceeded by way of written submissions. Both counsel filed written submissions which I have considered in this judgement.

#### **Duty of the First Appellate Court**

This being a first appeal, this court is under a duty to reappraise the evidence, subject it to exhaustive scrutiny and draw its own inferences of fact, to reach its independent conclusion as to whether the decision of the trial court can be sustained. This duty is well explained in the case of *Father Nanensio Begumisa and three others v. Eric Tiberaga SCCA 17of 2000* where the court held thus:

*"It is a well-settled principle that on a first appeal, the parties are entitled to obtain from the appeal court its own decision on issues of fact as well as of law. Although in a case of conflicting evidence, the appeal court has to make due allowance for the fact that it has neither seen nor heard the witnesses, it must weigh the conflicting evidence and draw its own inference and conclusions***."**

It is not the function of a first appellate court to merely scrutinize the evidence to see if there is some evidence to support the lower court's finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the trial court's findings should be supported. In doing so, court should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses *(see: Peters v. Sunday Post [1958] E. A 424).*

Against this background, I now re-evaluate the evidence presented at trial against the appellant's grounds of appeal.

# **Consideration by Court**

Before I delve into the merits of the grounds of appeal, I feel compelled to address the impreciseness of ground 1 of appeal. I notice that ground 1 of appeal is argumentative and narrative thus offending Order 43 Rule 1(2) of the Civil Procedure Rules.

Order 43 of the Civil Procedure Rules, which governs Appeals to the High Court, provides in Rule 1 sub-rule 2 as follows:

> *"The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative; and the grounds shall be numbered consecutively."*

Courts have time and again struck off grounds of appeal that are argumentative or imprecise for they neither render guidance to the court on the extent of evaluation of evidence nor call for specific adjudication.

In the case of *Kizito Mumpi Ssalongo v. Seruga Frank Civil Appeal No. 68 of 2010* Hon. Lady Justice Tuhaise struck off ground 7 of the appeal which read in part *"yet there was unanimous agreement by the said vendor's family who all endorsed and witnessed the transaction"* as being outrightly argumentative and narrative.

Decision of Hon. Justice Vincent Emmy Mugabo Page **4** of **11** In the case of *Migadde Richard Lubinga and others v. Nakibuule Sandra and others HC Civil Appeal No. 53 of 2019*, Lady Justice Immaculate Busingye Byaruhanga struck off the third ground of appeal for being argumentative. In that appeal, the third ground of appeal read thus*: "The Learned Trial Magistrate erred in law and fact when she entered judgment and made orders against all the appellants*

*inclusive of the second appellant yet she does not own any interest in the suit land in her personal capacity."* Court noted that words "*all the appellants inclusive of the second appellant yet she does not own any interest on the suit land in her personal capacity"* ought to have been used in the submissions and not in the grounds for appeal.

In the instant appeal words that *"when it failed to evaluate the evidence on record by not considering the evidence of PW2, the evidence of defence witnesses, and the submissions of the respondent but entirely relied on the evidence of the respondent thereby reaching a wrong conclusion which has caused a miscarriage of justice otherwise he would have decided in favour of the respondent",* as set out in ground 1, are outrightly argumentative and narrative. These are words that could best be used in submissions. Therefore, Ground 1 is struck off for offending Order 43 Rule 1(2) of the Civil Procedure Rules.

I will therefore proceed to determine grounds 2 and 3 of the appeal on their own merits.

**Ground 2: The trial magistrate erred in law and fact when he declared that the appellant is indebted to the respondent in the sum of UGX. 1,417,000/= being the price of green leaf supplied in November 2017 and March 2018 by the respondent thereby occasioning a miscarriage of justice.**

# **Submission of Counsel for the Appellant on Ground 2**

In arguing ground 2 of the appeal, counsel for the appellant company submitted that all the delivery receipts, which were admitted in evidence, were stamped as "paid", which indicates that the respondent received payment. Counsel argued that the respondent did not produce the original receipts and only relied on the photocopies which confirmed a practice that

when a supplier is paid, the appellant company retains the original receipts. Counsel argued that those original receipts were produced in court by the appellant as a proof of payment.

# **Submission of Counsel for the Respondent on Ground 2**

In arguing ground 2 of the appeal, counsel for the respondent submitted that the trial magistrate was right to hold that the appellant is indebted to the respondent to the tune of UGX. 1,417,000/=. Counsel argued that the appellant does not dispute the fact that the respondent supplied green tea leaves to it. What is in contention is that the appellant company paid the respondent the said money through the respondent's agent, Chappu Lawrence.

Counsel for the respondent argued that the claim that the appellant company paid the respondent through Chappu Lawrence had to be proven because the respondent did not appoint him to be his collecting agent.

Counsel argued that Chappu Lawrence had never been authorized to receive payment on behalf of the respondent and never held any powers of attorney to receive such payment, and that in any case, it was the appellant company's practice to pay the respondent through Centenary Bank Account No. 3201383223.

Counsel for the respondent submitted that although the appellant company had indicated that Chappu Lawrence would be its witness, he never testified in court. Counsel argued that Chappu Lawrence was the appellant company's employee and any payment made to him was in that capacity.

# **Court's Determination of Ground 2**

Decision of Hon. Justice Vincent Emmy Mugabo Page **6** of **11** I have examined the entire evidence on record and established that the appellant company does not deny the fact that the respondent supplied green tea leaves to it. What is in contention is that it made payment to the respondent through one Chappu Lawrence.

In holding that the appellant company is indebted to the respondent to the tune of UGX. 1,417,000/=, the learned trial magistrate observed that:

> *"During his testimony in his cross-examination, DW1 told the court that Chappu Lawrence had a contract with the defendant company and his duty was to collect green tea leaves from suppliers but added that he also received money for and on behalf of the plaintiff. This demonstrates that the said Chappu Lawrence was an agent of the company and the purported payment of money due to the plaintiff by the defendant company and receipt of the same by Chappu Lawrence without express authority from the plaintiff was fraudulent since the money was never delivered to the plaintiff. To say the least, I find that there was connivance between the company and Chappu Lawrence to defraud the plaintiff."*

I agree with the learned trial magistrate. There is no evidence on record to prove that Chappu Lawrence was an agent of the respondent whether by express consent, operation of law or the doctrine of apparent authority. Instead, what is on record, as per the testimony of DW1, is that Chappu Lawrence had a contract with the appellant company and his duty was to collect green tea leaves from the appellant company suppliers, including the respondent.

It was the testimony of the respondent that the appellant company used to pay him through his Centenary Bank Account. The respondent also told the court that he had original delivery receipts but upon his complaint, the field manager of the appellant company called Joseph collected the receipts from him to process his payments but never returned the receipts. This testimony was not in any way controverted.

The fact that the field manager of the appellant company took the original delivery receipts from the respondent, purportedly to process his payment but never returned them, only for these receipts to resurface at the commencement of legal proceedings, strongly suggests that the appellant company was not willing to pay the respondent.

In the premises, I have no reason to fault the learned trial magistrate's finding that the appellant company is indebted to the respondent to the tune of UGX. 1,417,000/=. Therefore, ground 2 of the appeal is answered in negative and must fail.

**Ground 3: The trial magistrate erred in law and fact when he awarded UGX 3,000,000/= to the respondent as general damages thereby occasioning a miscarriage of justice.**

## **Submissions by Counsel for the Appellant on Ground 1**

Counsel for the appellant company argued that where there is a breach of contract, a party who suffers a breach is entitled to receive from the party responsible for the breach compensation for any loss or damages caused to the injured party. Counsel referred this court to section 61 of the Contracts Act Cap. 284.

Counsel for the appellant also submitted that there was evidence on record to show that the respondent was paid and therefore there was no breach of contract to warrant an award of general damages to the tune of UGX. 3,000,000=.

Counsel for the appellant company argued that it is trite that in the assessment of general damages, the court is guided by the value of the subject matter, the economic inconvenience the party has been put through, and the nature and extent of the injury suffered. Counsel argued that the appellant was not responsible for any inconveniences suffered by the respondent and therefore it was wrong for the trial magistrate to award general damages against the appellant company.

Counsel for the respondent, on the other hand, argued that there was evidence that the appellant company refused to pay the respondent after the supply of green tea leaves. Counsel argued that the respondent was inconvenienced by the appellant's failure to pay. Counsel also argued that other than the value of the subject matter, the economic inconveniences suffered by the party injured are taken into consideration in the assessment of general damages, and in the instant case, the respondent, who is a farmer, had been greatly inconvenienced. Counsel for the respondent prayed for enhancement of general damages.

## **Court's Determination of Ground 3**

It is the finding of this court that the appellant is indebted to the respondent to the tune of UGX. 1,417,000/= being money arising from the supply of green tea leaves. The appellant company's failure to pay the respondent despite repeated demands is a clear act of breach of contract.

Section 61(1) of the Contracts Act 2012 provides that where there is a breach of contract, the party who suffers the breach is entitled to receive from the party who breaches the contract, compensation for any loss or damage caused to him or her.

General damages are awarded at the discretion of the Court, and the purpose of general damages is to restore the aggrieved person to the

position they would have been in had the breach or wrong not occurred *(See: Charles Acire Vs. M. Engola, H. C. Civil Suit No. 143 of 1993).*

It is trite law that general damages are the direct probable consequences of the act complained of. Such consequences may be loss of use, loss of profit, physical inconvenience, mental distress, pain and suffering *(Kampala District Land Board & George Mitala Vs. Venansio Babweyana, Civil Appeal No. 2 of 2007).*

In the assessment of general damages, the court is guided by the value of the subject matter, the economic inconvenience that the plaintiff may have been put through and the nature and extent of the injury suffered *(See: Uganda Commercial Bank Vs. Kigozi [2002] 1 EA 305).*

However, unlike special damages, general damages are typically assessed based on the nature and extent of the harm suffered rather than specific financial calculations. The goal is to provide a measure of justice and redress for the plaintiff's injuries or losses, even if their exact monetary value cannot be precisely determined *(see: Rudep Associates Company Ltd Vs Kamwenge District Local Government HCCS No. 29 of 2020)*

In awarding general damages to the respondent, the learned trial magistrate noted that:

> *"Given that the plaintiff has been tossed up and down by the defendant since 2018 as he tried to recover his money from the defendant but in vain, the said plaintiff is awarded UGX. 3,000,000/= as general damages."*

In the instant case, the respondent, a farmer, supplied green tea leaves to the appellant company which refused to pay despite repeated demands. The frustrations that farmers endure after supplying their produce, only to

face non-payment or delayed payment, are indeed troubling, and this is evident in the instant case.

The evidence on record clearly indicates that a supply was made between 2017 and 2018, but no payment was forthcoming which forced the respondent to seek legal redress, after nearly three years of persistent demands.

There is no doubt that the respondent suffered significant economic inconvenience as well as mental stress due to the appellant company's actions of non-payment. In light of these circumstances, I am, firmly, of the opinion that the learned trial magistrate exercised his discretion judiciously in awarding general damages of UGX. 3,000,000/= to the respondent.

Therefore ground 3 is answered in negative and must equally fail.

Resultantly, for the reasons given above, it is my finding that this appeal has no merit and is hereby dismissed with costs awarded to the respondent.

It is so ordered.

Dated at Fort Portal this 29th day of August 2024.

**Vincent Emmy Mugabo Judge**