[2024] UGHC 380

### THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBARARA HCT-05-CV-CA-NO.002/2022 (ARISING FROM CIVIL KHR-01-CV-CS-116 OF 2018) BAGAZA FRED TURYAMUREEBA LEO VERSUS APPELLANT RESPONDENT

BEFORE: THE HON. LADY JUSTICE JOYCE KAVUMA

### JUDGEMENT

## INTRODUCTION

[]. This is an appeal against the judgement and decree of the learned Magistrate Grade One delivered on the 11\* of January 2022 at Mbarara. in which she found that the suit in favour of the plaintiff/respondent and ordered the appellant/ 1 defendant to pay the respondent a sum of UGX. 8,000,000/= and costs of the suit

# BACKGROUND OF APPEAL

[21. The background of this appeal as gathered from the lower court record of proceedings is briefly as follows:

The respondent Bagaza Fred filed a Summary suit against the appellant Turyamureeba Leo in the Magistrate Grade One Court of Kiruhura at Sanga seeking Payment of UGX. 8,000,000/= and costs of the suit following an agreement between the appellant and respondent on 7h

December 2016 in which the appellant allegedly borrowed UGX. 8.000,000/= from the respondent and did not pay it back.

The suit was heard inter partes and judgement was entered in favour of the respondent. The appellant's defence was that the respondent is an llegal money lender, and that the agreement was instead for UGX. 2,000,O00/= which he paid back.

Learned Magistrate found the suit in favour of the respondent/plaintiff Bagaza Fred, and the appellant being dissatisfied with the decision of the Magistrate Grade One lodged this appeal. The

# REPRESENTATION

(3]. The appellant was represented by Counsel Matovu of M/S Matovu Suwaya & Co. Advocates, and the respondent was represented by Counsel Arinaitwe Ambrose of M/S Bwatota Bashonga & Co. Advocates.

### GROUNDS OF THE APPEAL

- 1. The Learned Trial Magistrate erred in law and fact when she failed to properly evaluate evidence adduced in court thus causing a miscarriage of justice. - 2. The Learned Trial Magistrate erred in law and fact when she held that the defendants/appellants are indebted to the plaintiff/respondent to the sum of Ugx. 8,000,000/=

3. The Learned Trial Magistrate erred in law and fact vwhen she held that the appellant executed the sale agreement dated 7th December 2016 (when he did not).

### DUTY OF COURT

[4]. This being a first appeal of a first appellate court to re-evaluate evidence. Following the cases of Pandya vs R [1957] EA 336; Kifamunte Henry vs Uganda Criminal Appeal No.10.1997, Bogere Moses and Another v Uganda Criminal Appeal No.1/1997, the Supreme Court stated the duty of a first appellate court in Father Nanensio Begumisa and 3 Others vs Eric Tiberaga SCCA 17/20 (22.6.04 at Mengo from CACA 47/2000 [2004] KALR 236 that the legal obligation on a 1st appellate court to re-appraise evidence is founded in Common Law, rather than the Rules of Procedure. The court further stated the legal position as follows:

"lt 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 must 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."

I will therefore bear that principle in mind as I resolve the grounds of appeal in this case before me.

#### MERITS OF APPEAL

Both counsel filed written submissions which have taken into consideration.

# Grounds 1 and 2

The Learned Trial Magistrate erred in law and fact when she failed to properly evaluate evidence adduced in court thus causing a miscarriage of justice.

The Learned Trial Magistrate erred in law and fact when she held that the defendants/appellants are indebted to the plaintiff/respondent to the sum of Ugx. 8,000,000/=

[5]. Counsel for the respondent firstly opposed the above two grounds of appeal as general grounds of appeal which are unacceptable in law and a mere fishing expedition. He also opposed them for containing argumentation and narration which is contrary to Order 43 rule 1(2) of the Civil Procedure Rules S. I 71.1 (CPR). It states that:

> "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"

The above Order 43 rule 1(2) of the CPR requires that the grounds be Concise. In Odyeki & Anor Vs Yokonani & 4 Ors (CIVIL APPEAL No. O009 OF 2017) [2018] UGHCCD 50 (11 October 2018) the first ground of appeal only stated that: The trial Magistrate failed to properly evaluate the evidence on record and arrived at an erroneous decision against the appellants thereby occasioning a miscarriage of justice. The court held that:

"Properiy framed grounds of appeal should specifically point out errors observed in the course of the trial, including the decision, which the appellant believes occasioneda miscarriage of justice. Appellate courts rown upon the practice of advocates setting out general grounds of appeal that allow them to go on a general fishing expedition at the hearing of the appeal hoping to get something they themselves do not know. Such grounds have been struck out numerous times (see for example Katumba Byaruhanga v. Edward Kyewalabye Musoke, CA. Civil Appeal No. 2 of 1998; (1999) KALR 621; Attormey General v. Florence Baliraine, CA. Civil Appeal No. 79 of 2003). Accordingly, the first ground of appeal presented in this appeal is struck out." (Emphasis mine)

In Ronchobhai Shivabhai Patel v Henry Wambuga & Another, SCCA No.06 of 2017 Mugamba JSC on such a ground of appeal like ground one in this case, held that:

"This ground is toO general and does not specify in what way and in which specific areas the learned Justices of Appeal failed to evaluate the evidence. It does not set out the particular wrong decision arrived at by the learned Justices ofAppeal.

In the instant case, the first ground of appeal states that "7The Learned Trial Magistrate erred in law and fact when she failed to properly evaluate evidence adduced in Court thus causing a miscarriage of Justice. It bears the same defect, failing to disclose the exact decision or aspect of evidence the trial Magistrate did not properly evaluate or what decision occasioned a miscarriage of justice. The first grOund is accordingly struck out.

Counsel for the respondent also opposed the 2nd ground of appeal because it includes the 2nd defendant in the lower court as being dissatisfied with the judgement of the Trial Magistrate. yet he is not a party to the appeal. He prayed that it be struck out as well. [6].

I agree with counsel for the respondent that the 2nd defendant in the lower court was erroneously included as being dissatisfied in ground 2, however, in the interest of justice according to Article 126(2) (e) of the Constitution of the Republic of Uganda which enjoins Courts to administer substantive justice without undue regard to technicalities. Ground 2 will stand as referring only to the appellant in this matter, after all the mistake is only in the phrasing on the ground.

Counsel for the appellant submitted that the respondent Bagaza Fred corroborated the appellant's testimony that they had transacted with each other several times and the appellant Turyamureeba Leo always paid him bak but that the respondent did not adduce any written documents reflecting such payments made by the appellant to him. Counsel stated that the appellant's late wife witnessed both [7].

transactions when the appellant borrowed money and when he paid the respondent back. He relied on the testimony of the appellant that whenever he transacted with the respondent, he never received a receipt, but the respondent would rather tick against his name in the book of debtors and then tear up the agreement.

The respondent adduced evidence in the lower court of an agreement PEx1 where he stated he lent the appellant UGX. 8,000,000/=. The appellant testified in the lower court that he did not sign on it and that he did not write his name on the document. He claimned that he instead signed on an agreement to borrow UGX. 2,000,000/= which was kept by the respondent

In response, counsel for the respondent stated that reference to the appellant's late wife allegedly witnessing the appellant pay back the Owed money is of no legal value because she passed on before she could give her evidence on oath and her witness statement was struck off the record. He also stated that the appellant has no documentation to support his claim of UGX. 2.000,000/= and not even a single witness was produced to prove the same. That the appellant's allegations that he paid back the said UGX. 2,000,000/= was not proved either.

#### Resolution

According to the agreement PEx1, the money was to be paid back before 7th January 2018. Counsel for the appellant argued that because the suit was filed on 29h October 2019, almost 2 years later, the suit is [81. an afterthought. This argument, however, does not hold water because the limitation period for recovery of money is not two years but rather SIX years as per Section 3 of the Limitation Act Cap 80. Therefore, the respondent was well within his rights to file the suit then.

In the lower Court, the agreement PExl dated 7th December 2006 which shows that the appellant Turyamureeba Leo and the respondent Bagaza Fred agreed that the appellant borrow UGX. 8.000.000/= was not disproved by the 1" defendant/appellant. The appellant Turyamureeba Leo claims that PEx1 is a forgery and that there was another agreement where he instead agreed to borrow UGX. 2,000,000/= from the respondent Bagaza Fred. This agreement was never tendered into court because the appelant claims he and the respondent agreed to tear it up after the transaction was complete. No witness to this claim was ever brought to testify to the same in court. This amounts to hearsay evidence that cannot be relied upon (See Maina wa Kinyattiv Republic (Cr. Appeal No. 60 of 1983) 1984] eKLR). Furthermore, no witness to the alleged agreement of UGX. 2,000,000/=

An independent forensic examiner DW3 Sylvia Chelengat testified in the lower court to examine the signature of the appellant on PExl to ascertain whether the appellant signed on it. DExl the report of the forensic examiner however did not rule out the possibility of the appellant signing on the document. She stated that it is a 50/50 likelihood that the appellant wrote his signature on the document, with some variations in the formation of letter U', the stroke of 'y' and the stroke ending the name Leo. The forensic Examiner however, also Concluded that the Sample signature Muganbirwe Mollen, the appellant's late wife had written the name Mugabirwe Mollen. This further authenticated the document PEx1.

The trial magistrate held that "Court finding that PEx1 was duly executed between the plaintiff and defendants makes the allegation of failed payments sustainable since the same invoved borrowing money 8.000. 000/=. "l agree with the Trial Magistrate that the authentication of the agreement PExl alone. proves that the appellant ought to pay the UGX. 8,000,000/= agreed upon.

Furthermore, the appellant had a guarantor Ssekitoleko Ssendi who was the 2nd defendant in the trial Court. He gave evidence in Court as DW4 that he was present when the respondent Bagaza Fred gave the said money to the 1 defendant/appellant Turyamureeba Leo and that he witnessed the agreement which was executed. He also stated that he was unaware whether the 1# defendant/appellant paid back the money. PW2 Tushime Yoram corroborated the 2nd defendant's evidence in his testimony that he witnessed the agreement take place. They both showed their signatures on the agreement PEx1.

[91. The appellant insisted that he paid the respondent UGX. 2.000,000/=. Counsel for the appellant submitted that even if PExl was a valid document, the oral evidence adduced shows that the appellant paid back the borrowed sum and they payment agreement was modified by the oral payment agreement. That the actions of the parties

in repayment of the borrowed sum without writing was valid and the oral evidence is admissible under Section 92(a), (b), (c) and (d) of the Evidence Act. The Trial Magistrate however relied on Sections 91 and 92 of the Evidence act and held that "when terms of the contract have been reduced into writing, no oral evidence can be adduced to vary or alter the terms of the contract." She relied on the case of Anthony Barugahare v Ntaratambi (1987) HCB 95 where it was held that oral evidence shouldn't be accepted to vary the terms of a written contract entered by contracting parties.

l agree with the trial Magistrate's finding and reasoning above. Section 92 of the Evidence Act is to the effect that introduction of oral evidence to contradict documentary evidence is prohibited where a contract has been proved in court under Section 91, but oral testimony may be given of matters described in **Sections 92(a)-(f)**. Counsel for the appellant relied on the exceptions in (a), (b), (c) and (d) which state that: -

a) any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto, such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration or mistake in fact or law:

b) The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this paragraph applies, the court shall have regard to the degree of formality of the document;

Page 10 of 13

) The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved;

d) The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property may be proved, except in cases in which that contract, grant or disposition ofproperty is by law required to be in writing or has been registered according to the law in force for the time being as to the registration of documents.

The above exceptions in Section 92 however do not apply to the case at hand and if anything, they instead disprove the appellant's allegations. The exceptions require that the oral evidence disproves or invalidates the written agreement. However, in the instant case, the oral evidence is insufficient to do as such. In the case of Hima Cement Ltdv Cairo International Bank Ltd (Civil Suit No. 13 of 2002) [2011] UGCommC 16 (23 March 2011) it was held that: -

"Sections 91 and 92 of the Evidence Act are clear and it would be a mockery of the Law of Contract to admit oral evidence that substantially destroys the documnentary evidence adduced to which the Respondent did not object.

In the instant case, the testimony that agreement PEx1 is indeed the agreement the appellant and respondent signed is overwhelming. PWW2 Tushime Yoram and the 2nd defendant Ssekitoleko Sendi who also happens to be the guarantor both testified that they signed on the agreement PEx1. The report of the forensic examiner DW3 also does not rule out the appellant Turyamureeba Le0 signing on it. furthermore, what the appellant raises cannot be covered by the exceptions in Section 92 of the Evidence Act.

By the appellant alleging the existence of the oral agreernent, he had the burden of proving that assertion to the satisfaction of the court. which he totally failed to do so.

[10]. Counsel for the appellant also relied on the appellant's testimony in the lower court that the respondent is an illegal money lender with many complaints against him at the RDC Kiruhura District. He also relied on DWI Bira Tabajwa's testimony that she got to know the respondent when he was before the RDC Kiruhura and that of PW2 who stated that the respondent was summoned by the RDC. Counsel for the appellant relied on annexture T to the appellant's witness statement, letter to the Magistrate which allegedly illustrates how the respondent carried out an illegal money lending business of extortion. He referred to this document as DE3, however, this document was never tendered into evidence as per the record of proceedings for it does not show the author.

The trial Magistrate stated in her judgement that the allegations of extortion of money and property by the plaintiff are inconsequential to the case at hand since the cause of action before the court was for recovery of money in an agreement that had been executed. I agree

with this finding by the trial Magistrate. No further evidence was adduced by the appellant to show that the allegations that the respondent is an illegal money lender had any bearing on the case at hand.

Counsel for the appellant's reliance on the appellant's late wife's evidence that she allegedly witnessed the appellant pay back the borrowed money is of no legal value because she passed on before she Could give her evidence on oath and her witness statement was accordingly struck off the record. I agree with counsel for the respondent that having struck off the witness statement of the deceased, referencing evidence that may have been on that witness statement would be contrary to the law.

I therefore find no fault in the findings of the Trial Magistrate Grade One.

This appeal accordingly fails, and the Judgement and Orders of the Trial Court are upheld. Costs to be provided for by the appellant.

I so order.

Dated this 29th day of May 2024

Joyce Kavuma

Judge

Page 13 of 13