[2017] UGSC 90

### THE REPUBLIC OF UGANDA

t

### IN THE SUPREME COURT OF UGANDA AT I(AMPALA

(Cotam: Kisaakyc, Mwangusya, Opio Aweri, Mwondha, Ekirikubinza JJSC)

## CIVIL APPPEAL NO. 04 OF 2016

#### BETWEEN

(JODFRDY SSEBANAKITA...., APPELLANT

#### AND

FUELEX (U) LTD RESPONDENT

lAppeal against the decision of the Court of Appeal at Kampala before Nshimye, Kasule, Buteera JJA deliuered on the 6th day of Nouember 2O 15 in Ciuil Appeal No.38 of 2O1Ol

### JUDGMENT OF MWONDHA JSC

Background:

t

\

The appellant between the months of September 2OO3 and August 2004 approached the respondent to supply him with petroleum products. The respondent supplied accordingly. The value of the supplies was Ug. Shs, 53,270,545 (Fifty Three Million Two Hundred and Scventy Thousand Five Hundred Forty Five shillings). The respondent claimed that the appellant had paid it only Shs. 18,991,7OO/= 1o. the products supplied and a balance of Shs. 34,27a,a45 /= was owed to it. The respondent instituted a suit in the High Court (Commercial Division) HCCS No. 640 of 2005 claiming the amount duc. The High Court found in its favour. The appellant was dissatisfied with the decision and he appealed to the Court of Appeal. He appealed on 5 grounds as contained in the Memorandum of Appeal but at the hearing the appellant opted to argue all the 5 grounds together which the respondent never objected to. All the five grounds were reduced into one single issue as follows:- & Whether on the evidence as presented during the trial the learned trial Judge was justified to find and hold that the appellant breached the contract and was indebted to the respondent to the tune of Ug. Shs. 34,278,845/=.

The Court ofAppeal dismissed the appeal with costs of the Court and the Court below.

The appellant was dissatislied with the decision hence this appeal.

I

In the memorandum of Appeal, the appellant raised eight grounds of appeal as follows:-

- l.) The learned Justices of Appeal as the first appellate Court erred in law and fact when they did not re-evaluate and analyze all the materials and evidence on record before reaching their decision - 2.) Alternatively, the learned Justices of Appeal erred in fact and law when they ignored the bulk of the appellant's evidence on record - 3.) The learned Justices of Appeal erred in law and fact when they failed to appreciate the weight and importance of admissions of Ms. Jane Rugambwa - 4.) By finding and holding that the refusal to call Ms. Jane Rugambwa as a witness did not amount to an admission by conduct, the learned Justices of the Court of Appeal erred - 5.) The learned Justices erred in law and fact by holding that the Court of Appeal could not draw an adverse inference on the part of the respondent on the failure to call Ms. Jane Rugambwa as a witness t - 6.) The learned Justices of Court of Appeal erred in law and fact in upholding the findings and conclusions of the High Court without scrutinizing them - 7.) The learned Justices of the Court of Appeal erred in law and fact by failing to appreciate that the burden of proof was static during the trial in the High Court - 8.) The learned Justices of the Court of Appeal erred in law and fact by misconstruing the provisions of the Evidence Act Cap 6.

The appellant prayed Court to:

- (a) Allow the appeal - (b) Set aside the judgment and decision of the Court of Appeal dated 6th November 2OL6 in Civil Appeal No.38 of 2010 and HCCS No. 64O of 2OO5 of the Commercial Division. - (c) Grant costs of the Appeal of this Court and Courts below.

I

## Representatlon

Mr. Godfrey Mutaawe represented the appellant while Mr. Innocent Taremwa and Mr. Hannington Mutebi represented the respondent.

### Submissions

At the hearing of the appeal, counsel for the appellant argued grounds 1,2 & 6 together, then grounds 3, 4& 5 together and lastly grounds 7 & 8 together

The main complaint in grounds 1,2,3,4,5,6,7 and 8 was for all purposes and intents that the 1"t appellate Court erred in law and fact when it failed to reevaluate all evidence and material before the trial Court by not subjecting it to fresh scrutiny.

Counsel for the appellant contended among other things that the evidence was the original sales book EXDl; the receipts formerly tendered in court as EXD2i\* (i) - D2 (xi); EX D4 (i) & (ii) showing the payments by the appellant; the case scheduling memorandum filed jointly in Court on ²⁴/Oa 12006 containing among others the admission by the respondent MD Ms. Rugambwa having received Shs. 28,954,6OO/=in cash from the appellant; and Receipt No. 477 dated 8/O6/04 in the sum of Shs. 8,3OO,000/=. Ue submitted that by Ms. Rugambwa the then MD of the respondent admitting receiving 28,954,600 /= meant that he was indebted to the respondent to the tune of 25,711,72O1= and, not Shs 34,27a,a45/=. Counsel concluded that since there was no rejoinder to the statement of defence, by the rules of Civil Procedure the said statement was deemed to have been admitted.

Counsel submitted further that the respondent did not discharge the burden to prove that the appellant breached the contract and therefore indebted to him.

Counsel contended that the respondent failed to produce Ms. Rugambwa as a witness who had made the admission. He concluded that S. 101 & lO2 of the Evidence Act casts the burden on the respondent which he failed to discharge.

Counsel for the respondent on the other hand supported the findings and decision of the Court of Appeal. He submitted that the learned Justices of the Court of Appeal thoroughly re-evaluated the evidence and materials before the trial Court as the law required of the l"t appellate court. He argued that the receipts the respondents relied upon had been disputed by the respondent during the scheduling conference as per the scheduling memorandum and so they could not be taken as agreed facts. He argued that it was as a result of the learned Justices of Appeal having re-evaluated the evidence and found that the receipts relied on were full of discrepancies as they had been made in the names of different entities which had separate accounts with the respondent. He argued further that it was after that re-evaluation that the Court of Appeal found that the Auditor's report (EX P 1) which the respondent brought as /.- evidence and had been extracted from exhibit EXDI (Sa.les Record Book) which\$ proved the case of the respondent.

He submitted that the Accountant DW2's evidence brought out the inconsistencies in the appellant's case when he stated that he didn't know why the receipts were issued in the names of different entities. He also stated that he didn't know the specific outstanding frgure. The receipts exhibited were No.711 issued on 24/O3/2004 in the names of Sebana & MMTC; Receipt No. 434 made on 6/04 lO4 and Receipt No.516 ot 2alo7 /2OO4 in the names of Mukisa Mpewo Transport Co.

He contended that the Court of Appeal had no legal duty to rely on contents of a withdrawn summary suit HCCS No. 1 17 of 2005 to draw any adverse inference that failure of Ms. Rugambwa to come and be witness of the respondent amounted to an admission.

He argued that Justices of Appeal addressed their mind on Section 16 of the Evidence Act and concluded that they could not draw any adverse inference. He relied on the case of Uganda Breweries Limited Vs Uganda Railways Corporation Civil Appeal No.6 of 2OO1.

He submitted that DW2 clearly stated that he carried out a reconciliation based on receipts and sales book and found two figures representing over payment by the appellant but the inconsistencies were not reconciled by the appellant. He contended that the burden of proof was on the appellant to show that he had not breached the contract. He concluded that by the respondent producing the auditor's report lrhich they considered and re-evaluated, the learned Justices had properly exercised their duty as a lirst appellate Court and found that the respondent had discharged its duty.

# Consideration of the appeal

This is a second appeal and the duty of the second appellate Court was long settled in a host of cases among which is Kifamunte Henry Vs Uganda Criminal Appeal No, 1O of 1997 as hereunder stated:-

".....the first appellate court has a duty to review the evldence of the case ,.,., and to re-consider the materials before the trlal Judge. The appelhtdfl Court must then make up its own mlnd not dlsregarding the Judgment appealed from but carefully weighing and conaiderlng it. .....on a second appeal, lt ls sufllclent to declde whether the flrst appellate court on approaching its task, applied or failed to apply such princlples...this court will no doubt conslder the facts of the appeal to the extent of considering the relevant point of law or mlxed law and fact ralsed ln any appeal, If we re-evaluate the facts of the case wholesele we wlll assume the duty of the flrst appellate court end create unnecessary uncertalnty. We can lnterfere with the conclusions of the Court of Appeal lf lt appears that ln lts conslderation of the appeal as the flrst appellate court, mlsapplled or failed to apply the principles set out ln such decislons. See also Pandya Vs R [19s4 EA 336',

The appellant raised eight grounds of appeal which were submitted in clusters of grounds l, 2,6 together, 3,4 and 5 together and then 7 & 8 together.

It was very clear to me that much as these grounds were submitted upon in clusters they came to one issue being:

Whether the Court of Appeal properly re-evaluated the evldence of the trlal court to conflrm the lindings of the trial court that the appellant breached the contract and so was lndebted to the respondent to the sum of Shs. 34,278.8451=

I have had the opportunity to carefully reading the proceedings of the trial court and the judgment of the Court of Appeal. It was clear that the Court of Appeal was alive to its duty as the first appellate court. While citing rule 30 of the Judicature (Court of Appeal) Rules, the Court of Appeal had this to say to the issue:

"Upon revlewing the evldence on record, ltts clear that the appellant and the reepondent entered lnto a contract whereby the respondent agreed to supply the appellant with petroleum products on both caeh and credit basis. The respondent supplied petroleum products wort\$ Ug. Shs. 33,270,5451= of which the appellant only paid 18,991.7OO15J> leavlng an outstanding balance of Ug. Shs 34,278,845 / =. The respondents brought evldence of an audlt report and also called the auditor who conducted the audit and testifled that the appellant owed the respondent money to the above mentioned tune..."

In my view, the above re-evaluation by the Court of Appeal was sufficient in subjecting the lower Court evidence and material to fresh scrutiny. For it depends on the circumstances of each case and style of the l"t appellate Court.

According to cases I have perused, there seems to be no parameters as to how far the l"t appellate Court can go in re-appraising & re-evaluating for

instance the case of Uganda Brewerles Llmlted Vs Uganda Rallwaye Corporatlon (supral. It was observed as follows:

"There ls no set format to whlch a re-evaluatlon of evldence by a flrst appellate court should conform. The extent and manner in whlch reevaluation may be done depends on the clrcumstances of each case and the style by the first appellate court," (Oder JSC) RIP.

The case of Francig Sembatya Vs Alport Servlces Ltd SCCA No.6 of 1999 it was held among othcrs ""...... A flrst appellate court is expected to scrutlnlze and make an asseasment of the evldence but thls does not mean that the Court of Appeal should write a Judgment similar to that of the trlal." (Tsekoko JSC)

And also in the case of Ephralm Orgoru and another Ve Francls Benega Bonge Clvil Appeal No. 1O of 1987 it was stated that srhile the length of the analysls may be lndicatlve of a comprehenslve evaluatlon of evldence, nevertheless the test of adequacy remalns a questlon of substance. (Odoki JSC)

It was not disputed that the respondent's case was premised o., tl.\$ Auditor's report EXPI which had been extracted from the Record Sales Book Ex Dl.

It was an agreed fact in the scheduling memorandum that EXDI was the book where the respondent's servants were entering delivery of the products.

The appellant adduced evidence from DW2 an Accountant who testified in Court that he carried out a reconciliation based on receipts and sales books from which he found two different figures being Shs. 869,880/= and Shs. 1,123.055/= being figures showing over payment by the appellant. He also stated that the inconsistencies were not reconciled by the appellant.

The appellant relied on the receipts whose contents were disputed by the respondent according to paragraph 7 of the scheduling memorandum.

The Court of Appeal brought out clearly the above evidence while reviewing the evidence before the trial court.

Thc Court of Appeal was aware of the burdcn of proof required as stated in section 1O2 of the Evidence Act Cap 6 Laws of Uganda which provides "The burden of proof ln a suit or proceeding lles on the person who would fail if no evidence at all were given on elther side,"

I agree with the learned Justices of Appeal when they held that the respondent considering the evidence from both parties, the burden of proof was upon the respondent and the respondent discharged its burden on a balance of probabilities. The burden of proof shifted to the appellant to prove that he had not breached the contract and was not indebted to the respondent. In addition, the appellant insisted on receipts which were in dispute and were full of discrepancies in that they were made in names of different entities other than the appellant.

^Iagree with the Court of Appeal finding that failure by the respondent to calle Ms. Rugambwa cannot cause this court either to make an adverse inference"2 that it was arl admission by conduct. I concur with the authority cited by learned counsel for the respondent, Ugande Brewerles Limlted Vs Uganda Rallways Corporatlon (supra). The issue" whether an adverse lnference should be drawn from the fact that a particular witness has not been called ls a matter which must depend upon the circumstances of each case..,,,.,...,1n view of the oplnlon on the facts whlch I have expreesed above thls questlon is now hardly relevant and I wlll content myself ln the obeenratlon that I doubt very much whether ln the clrcumstances an adverse lnference of any materlallty was Justlfled."

It is trite law that a litigant is not compelled to rely on a given number of witnesses. See sectlon 133 of the Evldence Act. But most importantly

section f7(1) ofthe Evidence Act providcs "statements made by a perty to the proceedlngs or by any agent of any such party , whom the Court regarde, in the circumstancee of the case, as expressly or lmplledly authorized by htm or her to make them are admissions."

Even without considering the provisions of S. 17(3)(a)(b) it is clear that the appellant's counsel misconceived all these provisions.

The suit in which Ms. Rugambwa swore an affidavit had been withdrawn before institution of the instant suit. This was HCCS No. I 17 of 2005 as opposed to the instant suit HCCS No. 640 of 2O05 from which this appeal arose. This was a later suit, with different amount of money due and owed to the respondent. Besides, Order trO(V Rufe (lf lll ofthe Clvll Procedure Rules gives a discretion to the plaintiff at any time before the delivery of the defendant's defense or after receipt of that defence before taking any other proceeding in the suit ( except an application in chambers) by notice in writing to wholly discontinue his or her suit against all or any of the defendants or withdraw any part or parts of his or her alleged cause of complaint and thereupon he or she shall pay the defendant's costs qQ occasioned by the matter so withdrawn. In the premises, the respondent"' cannot be faulted in the circumstances. Above all, the amount owed and due to the respondent was proved on a balance of probabilities. The respondent's evidence of the Audit report EX Pl, which showed that the amount was Shs. 34,278,8451= contrary to what the appellant claimed was due and owing.

As counsel for the appellant submitted, S.1O2 of the Evidence Act provides:

"The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side." The appellant was at liberty to call Ms. Rugambwa as his witness, as he was the one who wanted to rely on the proceedings of the withdrawn suit in light of section 102 of the Evidence Act

C. D Flelds Law of Evldence loth Edn Vol II at page 1354 was relicd on at length by counscl for thc appcllant among othcrs. He quoted "sults may come and go wlthdrawn with or without ltberty to sue afresh, dlsmlssed or decreed, no matter which but statements made therein, no matter where, ln pleadlngs, petltions, affidavlts or evldence remaln forever and for all purposes too, allowed by law such as to be proceeded with as admissions, where they are found to be such, so long as they are not rebutted...... It ls sell settled that admlsslons of a party adverge to lts own lnterests as to the fact in lssue or a relevent fact lrrespectlve of the occaslon it was made is one of the best or slmplest pleces of evldence against lt. "

I hasten to add that this is in reference to a party to the suit. Definitely, Ms. Jane Rugambwa was not a party to the suit which was withdrawn and she was neither a party in the instant case.

\*g But whether she was a party or not the learned author points to an exception, and that exception is in the rebuttal. Needless to say that it's not any'rvhere on the record of the case, that Ms, Rugambwa made an admission and therefore the submission by counsel that there was an admission was superfluous.

However, even if we were constrained to take it that there was an admission, it was rebutted by the submissions of counsel for the respondent before the trial court (High Court Proceedings) which were not responded to by counsel for the appellant. Counsel for the respondent stated as follows:

'lt is important to note that civil suit No. I 17 of 20O5 was filed before the Auditor's report was made. The affidavit of Jane Rugambwa counsel for the defendant makes reference to having stated the debt as at 28,954,60O /=

'was accordingly made in that belief. However, upon receipt of the Auditor's report with a new figure the said case was withdrawn....and this suit was accordingly filed."

Since that submission was not challenged and or responded to the inference is that the purported admission, was made before the truth about the money due was unearthed. And that means that the admission was rebutted and could not stand. It confirmed that the respondent had proved its case to the required standard so it discharged its burden.

In conclusion, I find that the Court of Appeal exercised its duty properly as the first appellate Court and came to the right decision that the appellant entered into contract with the respondent and he breached it. The appellant failed to pay the outstanding balance as already stated in this judgment.

There is no justification for interfering with the Court of Appeal decision.

The judgment, decision and orders of the Court of Appeal are upheld. The appeal is dismissed with costs of this court and the courts below.

Dated this....................................

Thue Dul

**MWONDHA** JUSTICE OF THE SUPREME COURT

# ⁵ THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT I(AMPALA CIVIL APPEAL NO. O4 OF 2()16.

#### ICORAM : NI SAAKYE, MWANGUSYA, OPIO-AWER], MWONDHA, TIBATEMWA EKIRIKUBINZA, JJSCJ

#### BETWEEN

# GODFREY SEBANAXITTA : : : : : : : : : : : : : : : : : : : : : : : : : : APPELLANT AND

## M/ S FUELEX (U) LTD : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : RESPONDENT

[Appeal from the decision of the Court of Appeal at Kampala before (Hon. Nshimge, Kasule and Buteera, JJA), Ciuil Appeal No. 38 of 201O dated 6th Nouember, 2015.1 20

#### Representation

25 Mutaawe Geoffrey Taremwa together respondent. appeared for the with Hannington appellant while Innocent Mutebi appeared for the

#### JUDGMENT OF TIBATEMWA-EKIRIKUBINZA.

I have had the benefit of reading in advance the draft judgment prepared by my learned sister, Mwondha, JSC. I agree with her that 30

//z

⁵ the appeal be dismissed. I also agree with the award of costs proposed in her judgment.

I however wish to lay a littte more emphasis on what constitutes an admission and also discuss the applicability of the law on burden of proof in this matter.

#### ¹⁰ Background

The brief background of this appeal is that in the months of September 2003 and August 2004 the respondent supplied fuel on credit to the appellant, who was employed as a transport officer in Mukisa Mpewo Transport Company (MMTC). It was an agreed fact that the total value of the supplies was Ug shs. 53, 27O ,S4S / = .

The appellant used to pay some money to offset the credit. On lOtn February 2005, the respondent filed a summary suit in the High Court vide HCCS No. 117 of 2005 claiming an unpaid sum of 24,315,9451=. To support the claim, the respondent adduced affidavit evidence of Ms. Rugambwa who was the Managing Director of the respondent at the time. In the said affidavit, Ms. Rugambwa averred that the appellant had paid off Ugshs 29,954,600/= of the total value of supplies and was left with a balance of 24,315,945/=. However, before the suit could be heard, the matter was withdrawn.

25 The withdrawal of the suit was as a result of the company having engaged an auditor in March 2005 who carne up with a report indicating that the appellant had only paid Ug shs. 18,99 1,TOO/= and not 28,954,600/= and that the balance owed was Ug shs.34,

r 4-c

#### 5 duties and obligations as interpreted in decided cases before arriving at its conclusions.

#### Appellant's Submissions

The appellant argued that although in its judgment, the Court of Appeal had correctly stated its duty as a first appellate court, it failed to adequately scrutinize, re-evaluate and weigh all the evidence before reaching its own conciusion on the dispute. That had the learned Justices of Appeal done so, they would not have upheld the findings and conclusions of the trial judge.

15 The appellant further argued that since there was no reply to his written statement of defence in the summary suit, the figure stated in the affidavit of Ms. Rugambwa was binding on the respondent because it was an admission. In support of this argument, the appellant relied on Section l7 (1) and 17 (3) of the Evidence Act. The Section provides in part as follows:

- 20 (1) Statemeats made by a party to the proceeding or by an agent of any such party, whom the court regards, in the circumstances of the case, as expressly or impliedly authorized by him or her to make them, are admissions. - 25 In addition, the appellant faulted the Court of Appeal's finding that the evidence of the receipts reiied upon by the appellant to support his case were not credible and that they were marred with discrepancies in that they bore different names. The said

\.

receipts were those claimed by the appellant to have been $\mathsf{S}$ issued by the respondent each time he settled his debt.

The appellant therefore argued that had the Court of Appeal reevaluated all the materials relating to the receipts, they would have found Ugshs. 34,278,845 an incorrect figure of the balance owed.

- The appellant also submitted that the Court of Appeal erred in failing 10 to analyze the contents of Exhibit D1 (this was the respondent's sales book indicating the paid and unpaid amounts in regard to the contract of fuel supply between the appellant and the respondent. It was marked as D1 by the High Court). That the Court of Appeal like the High Court based their findings on Exhibit P1 (which was the 15 respondent's auditor's report) indicating that the unpaid balance was $34,278,845/$ =. The appellant argued that there was no way Exhibit P1 which was extracted from Exhibit D1 could be more reliable and credible than the source from which it was extracted. - The appellant further faulted the Court of Appeal's failure to 20 appreciate the burden of proof of each party. That the learned Justices cited Section 102 of the Evidence Act and came to the conclusion that the respondent discharged its burden while the appellant had not. The appellant submitted that the respondent - had the onus and burden to disprove Rugamba's admission 25 regarding the payments.

$\mathsf{S}$

$\sim$ $\sim$

The appellant concluded the submissions by praying that this Court allows the appeal to succeed and set aside the judgments of the lower courts.

#### Respondent's submissions

The respondent argued that the Court of Appeal carried out its 10 duty as a first appellate court and came to the right conclusion. That the Justices properly re-evaluated the receipts adduced by the appellant and noted that while some of the receipts were in the names of the appellant, some were in the company name. That consequently the court came to the conclusion that the 1s receipts were marred with inconsistencies and could not be relied upon. Furthermore, the respondent pointed to the fact that the Court of Appeal noted that DW 2, appellant,s accountant, testified that he did not know why the receipts were issued in names of two different entities and further that he did 20 not know the specific outstanding figures. That on this basis the Court of Appeal was right to hold that the appellant,s evidence led by his accountant had many inconsistencies that were never reconciled.

25 In regard to the alleged admission by Ms. Rugambwa, the respondent argued that the statement was made before a proper audit could be made. That when the audit was made and the right sum was discovered, the suit with an incorrect sum was withdrawn under Order 25, Rule 1 of the Civil procedure Rules which inter alia allows a party to discontinue a suit. The

V\_ v

⁵ respondent thus argued that the burden lay on the appellant to bring Ms. Rugambwa to court to support his case. In addition, the respondent submitted that the failure to call Ms. Rugambwa on its part did not amount to an admission by conduct on its part. That Section l7 of the Evidence Act was misapplied by the aff,rdavit of Ms. Rugambwa 10 AS appellant to qualify the admissions in law.

#### Analysis

### What constitutes an admission?

The appellant submitted that the affidavit of Ms. Rugwambwa stating that the balance due as Ushs.2g, gS4,600/= amounted to an admission of the debt due. i5

Section 16 of the Evidence Act defines an admission as:

^Astatement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and in the circumstances. hereinafter mentioned. (My emphasis)

The circumstances referred to in Section elaborated in Section lT of the Evidence t6 Act above are to include statements made out of court by a party to the proceedings or 2s bva pe rson who is their reDresentative

, predecessor in title, associate, agent or referee of a party.

iie

- ⁵ I note that the affidavit of Ms. Rugambwa was made at the time when she held the position of Managing Director in the respondent company. Therefore, in line with Section l6 and ¹⁷ (supra), her statement would qualify as an admission by the respondent company. - I note that an admitted fact need not be proved (Section 22 of the Evidence Act). The essence of the appellant's argument was therefore that the respondent could not ask the appellant for more than the sum averred to by Ms. Rugambwa. 10

However, as earlier pointed out in this judgment, the suit in which Rugambwa's affidavit was adduccd as evidence was withdrawn. The question which follows is: uhether the respondent companA b still bound bg the said admi.ssion. 15

Section 28 of thc Evidence Act provides:

### Admissions not conclusive proof. but mav estop.

Admissions are not conclusive proof of the matters admitted, but they may operate as estoppels under the provisions hereafter contained. 20

Section 17 of the Indian Evidence Act is in pari materia.with Section 16 of Uganda's Evidence Act and Section 18 of the Indian Evidence Act is in pai mateia with Uganda's Section ¹⁷ supra. ,q

t\* ^C In the Indian persuasive authority of Nagubai Ammal and others vs. B. Shama Road and others AIR 1956 SC S93, the Supreme Court in addressing the effect of statements [admissions] made in a previous suit held : 5

An admission is not conclusive as to the truth of the matters stated therein. It is onlv a piece of evidenc e. the weieht to be attached to which must depend on the circumstances under which it is made. It can be shown to be erroneous or untrue, so long as the Derson to whom it was made has not acted uDon it to his ¹⁵ detriment. when it mieht become conclusive by wav of estoppel.

And in another persuasive authority of Panchedo Naraln Srivastar vs. Jyoti Sahay and another (198a) SCC S94, the Indian Supreme Court emphasized that admissions can be withdrawn or explained away.

25 From Section 28 (supra) and the above persuasive authorities, as, it is clear that an admission is not conclusive. In the present matter, it was the explanation of the respondent that the debt sum in Ms. Rugambwa's affidavit was not correct. That the sum was arrived at before the audit was made and it was for this reason that the suit in which Ms. Rugwamba's affidavit had been tendered was subsequently withdrawn. I therefore conclude that what would have been an admission can no longer be binding as it had been explained away. An averment

I

v1?

⁵ in a withdrawn suit cannot be said to be an admission more especially when both the High court and the Court of Appeal relied on the evidence of the Audit report which determined the exact debt.

## Burden of proof

10 I will first discuss the question of who has the burden to prove the debt sum and then who has the burden to prove the authenticity of the receipts.

It was the appellant's submission that the respondent had the burden to prove that he had breached the contract and also disprove the appellant's evidence. That the respondent did not produce evidence whatsoever to explain the disparity in the debt sum. Further that, the burden to disprove the receipts lay on the respondent.

on the other hand, the respondent submitted that since the appellant relied on the affidavit of a withdrawn suit, the burden was upon him to call the said Ms. Rugambwa to support his defence. 20

# Section lO2 of the Evidence Act provides:

w,e

# ⁵ On whom burden of proof lies.

The burden ofproofin a suit or proceeding lies on that person who would fail tf no evidence at all were given on either side.

Section 1O3 ofthe Evidence Act provides

#### Burden of roof as to particular fact. 10

The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

Section 1O6 of the Evidence Act provides: 15

> Burden of provins. in civil roceedinEs. fact especiallv within knowledge.

> In civil proceedings, when any fact is especially within the knowledge of any person, the burden of proving that fact is upon that person.

In the present case, the respondent company adduced evidence ofa sales record book and an audit report to prove the fact that the appellant was s4,278,84s /=. indebted to it in the sum of Ugshs.

On the other hand, the appellant adduced evidence of receipts which he alleged had been issued to him by the respondent 25

- ⁵ when he paid for the fuel supplies. In addition he also relied on the afhdavit evidence of Ms. Rugambwa which as I have found above is no longer binding and cannot be used to support the appellant's case. - In response to the receipts adduced by the appellant, the respondent company argued that the receipts were fabricated. It was further argued that the lower courts had found them to be marred with inconsistencies and issued in names different from that of the appellant; whereas some receipts bore ,sebana/ MMTC', others bore ,Mukisa Mpewo,and Nsubuga. In reply to the respondent company,s assertion above, the appellant stated that the receipts bearing the name Nsubuga was for comparison purposes with those written in his names, to show that they all originated from the respondent company. 10 15 - I note that the receipts relied on by the appellant indicated that the respondent issued receipts to Ssebana/ (MMTC) and sometimes Mukisa Mpewo as acknowledgment of payment of fuel debts. 20

On record is the fact that the sales and record book (exhibit Dl) adduced by the respondent bore the title: ,. SEBANA/

MMTC". Indeed the auditors also relied on this book to come up with a report. I note that in crediting the appeliant,s payments to the respondent, the auditors credited the receipts that exclusively bore the appellant,s name (SEBANA) as well as receipts bearing both the appellant's name and the business )q

t2

\-'

⁵ name of MMTC (SEBANA/MMTC). This shows that Sebana and MMTC were considered one and the same person a-lthough in iaw a company and an individual are considered as different persons. On this point, since the evidence of the sales and record book adduced by the respondent showed that Sebana and MMTC were considered one person, I fault the Court of Appeal and the trial court,s reasoning that the receipts of the appeliant could not be relied on because the names on the receipt were inconsistent. 10

Be that as it may, I must still discuss the question: on whom did the burden lay to prove that the receipts the appellant adduced in evidence were not fabricated?

Section 1O6 of the Evidence Act (supra) is to the effect that ^a person who has knowledge of a fact has the duty to prove that fact.

The appellant adduced receipts which he claimed were issued to him by the respondent whenever he paid off his debt. However, the respondent disputed the receipts. To support this argument, PW2 (Managing Director of the respondent company) stated that the colours on the receipts presented by the appellant were different from the colours of the company logo. PW 2 pointed out that whereas some receipts had blue and red colours, others had green and red colours. In addition, pW ² also pointed out the fact that whereas some receipts were worded FUELEX (U) LTD, others were worded FUELEX 20 25

(UGANDA) LIMITED. That these disparities showed the $\mathsf{S}$ appellant had forged the receipts.

appellant did not give any explanation for these The discrepancies. I therefore find that he failed to prove that the receipts in issue originated from the respondent company.

Consequently, I would uphold the decision of the Court of 10 Appeal, that the respondent proved that the appellant owed the respondent the sum of Ug shs. 34, $278,845/=$ .

## Conclusion

Arising from the above, I would dismiss the appeal.

Dated at Kampala this 06^th day of .... October 15 $\ldots \ldots \ldots 2017.$

Lusatemuro,

PROF. LILLIAN TIBATEMWA-EKIRIKUBINZA JUSTICE OF THE SUPREME COURT

## THE RI,PUIBLIC OF UGANDA

!" ^I

## IN THE SUPREME COI'RT OF UGANDA AT KAMPALA

[CORAM: KISAAI{YE; Mv\|ANGUSYA; OPIO-AIIIERI; MVUONDHA; & TIBATEMWA-EKI RII{L|BI NZAi "f,r. S. C./

## CIVIL APPEAL NO 05 OF 2016

#### BETWEEN

## GODFREY SSEBANAKITA : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : :I APPELLANT

#### AND

# ¹⁰ FUELEX (UILTD I RESPONDENT

[Appeal from the Judgment of the Court of Appeol (Nshlmge' Kasule, & Buteera, JIA) dated 6.h Nouember 2O75 tn Ctutl Appeol No. 04 oJ 2O7Ol

## JUDGMENT OF DR. KISAAKYE. JSC

ls I have had the benefit of reading in draft the Judgment of my learned sister Mwondha, JSC. I agree with her that this Appeal should be dismissed with costs. I also agree with the orders she has proposed.

As the rest of the members on the Coram agree, this Appeal is hereby dismissed on the terms and orders proposed by the learned Justice of zo the Supreme Court.

Dated at Kampala ttris ..0.6.1. day of .,.9.fr1a!\* .... 2017.

flL

JUSTICE DR. ESTHER KISAAKYE JUSTICE OF THE SUPREME COURT

## THE REPIIBLIC OF UGANDA

lJ .

## IN THE SUPREME COURT OF UGANDA AT KAMPALA

(Coram: Kisaalrye, Mwangusya, Opio Aweri, Mwondha ard Tibatemwa-Ekirikubinza JJSC)

## CIVIL APPPEAL NO. 04 OF 2016

### BETWEEN

GODFREY SSEBANAKITA APPELLANT

### AND

FUELEX (U) LTD RESPONDENT

(Appeal against the decision of the Court of Appeal behre A. S Nshimye, Remmg Kasule. Richard Buteera JJA deliuered on the 6x dog of November 2O15 in Ciuil Appeal No.38 of 2O1Ol

#### JUDGMENT OF MWANGUSYA JSC

I have had the opportunity of reading in draft the judgment of Mwondha, JSC.

I agree with her that there is no justilication for interfering with the Court of Appeal decision and that this appeal should be dismissed with costs in this Court and Courts below.

il.. Dated this.....0 day of .. Q.ckeh\*u 20t7

()

I

(.

I

M SYO, WSTICE OF THE SUPREME COURT

## THE REPUBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA AT KAMPALA

(Coram: Kisaakye; Mwangusya; Opio-Aweri; Mwondha; Tibatemwa-Ekirikubinza; JJ. S. C).

### CIVIL APPEAL NO. 04 OF 2016

#### **BETWEEN**

# GODFREY SSEBANAKITA::::::::::::::::::::::::::::::::::: AND

FUELEX (U) LTD :::::::::::::::::::::::::::::::::::

(Appeal against the decision of the Court of Appeal at Kampala before Hon. Justice: Nshimye, Kasule, Buteera JJA, Civil Appeal No. 38 of 2010, dated 06^TH day of November, 2015)

#### **JUDGMENT OF OPIO-AWERI, JSC**

I have had the benefit of reading in draft the judgment of my learned sister, Hon. Justice Faith Mwondha, JSC. I agree with her that this appeal should be dismissed. I also agree with the Orders she has proposed.

Dated at Kampala this.... $66$ ^th... ....day of... October........2017.

> OPIO-AWERI, JUSTICE OF THE SUPREME COURT.