[2002] UGSC 44

# THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT MENGO

## CORAM: ODOKI, CJ., TSEKOOKO, KAROKORA, MULENGA KANYEIHAMBA, JJSC

## CIVIL APPEAL NO. 19 OF 2001

#### **BETWEEN**

### RESTETUTA TWINOMUGISHA ....................................

#### AND

## <table> UGANDA ALLUMINIUM LTD RESPONDENT

(Appeal from the Judgment of the Court of Appeal of Uganda at Kampala before their Lordships Kikonyogo, DCJ, Twinomujuni and Kitumba, JJA dated 3^rd August 2001 in Civil Appeal No. 22 of 2000)

#### JUDGMENT OF KAROKORA, JSC

This is an appeal against the decision of the Court of Appeal dated 3^rd August 2001 which allowed the appeal reversed the decision of the High Court and ordered each party to bear its own costs in the Court of Appeal and the High Court.

The background to this appeal is briefly as follows:- The appellant's late husband, Tony Twinomugisha hereinafter referred as "deceased" was employed by the respondent as Chief Accountant prior to his death. The deceased had opened up a joint bank account with his wife, the appellant, in Uganda Commercial Bank, Industrial Area Branch. He was obtaining goods from the respondent company and apparently, without the knowledge of the appellant, he was paying for those goods by issuing cheques drawn and signed by the appellant on their bank joint account. The appellant signed several blank cheques in the cheque book which

$\mathbf{1}$

the deceased kept in his drawer in the office. Whenever he wanted to pay for the goods he would ask the cashier of the respondent company, Ms. Frolence Tiko DW3 to fill the blank cheques. Tiko testified that her duties as cashier included receiving and banking of cash and cheques. The deceased was her boss and used to give her cheques signed by the appellant and instructed her to fill in the details that he would give her including the amount of money and the date. She stated that she filled two cheques of Shs. 4,000,000/= each namely No. 075339 (exh D4) and No. 175338 (exh D5) and a third cheque of Shs. 6,000,000/= vide cheque No. 075344. She stated that these cheques were issued in respect of goods supplied to the plaintiff in a shop called Tyresland on Ben Kiwanuka street, which her agents acknowledged. She pointed out that the cheque (exh D5) for Shs. 4,000,000/= was dated 319/93 after the deceased had died on2/9/93.

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After the deceased's demise, Ms Tiko opened the drawer of deceased's desk in his oflice in the presence of other staff members and found several documents which included several cheques bearing the appellant's signatures. Most of the cheques were dated by her after the deceased's death and presented to the bank for payment. Those cheques which were credited on the ledger of the account of Tyresland were dishonoured and the debit on that account grew to Shs. 40,83 1,8a9l=. But, because some of the old cheques could not be recovered, the debit balance on the account showed a sum of Shs.30,63 1,849/=.

Mr. A. M. Jha, DW4 the Executive Director of the respondent company, returned from lndia and learnt that the deceased had misappropriated a sum of Shs. 47,73 1,000/= from the company. He demanded from the appellant payment of the amount. He reported the matter to police and the appellant was in September 1997 charged with the offence of issuing false cheques confary to section 364(l)(5) of the Penal Code Act. She

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was released on police bond but kept on reporting to the police subsequent to her release.

In October 1997, the appellant received a letter from the respondents' lawyers, M/S Mulenga & Karemera Advocates, informing her that goods purchased by her company from the respondent had not been paid for as a result of fraudulent concealment of her company's indebtedness. The advocates' letter warned the plaintiff that unless within 7 days she paid the debt together with their legal fees, she would be reported to police for having issued a bouncing cheque and for conspiracy to defraud and or theft/obtaining goods by false pretence. The letter stated as follows:-

> Mrs. Restae Twinomugisha Tyresland (U) Ltd C/o Mr. Z Bishangenda NW&SC

Dear Madam,

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Re: Bounced Cheoue

We act for M/s Uganda Aluminum Ltd of P. O. BOX 12133 K'la which has instructed us to write to you as follows:

In or about July 1997 our client discovered that goods purchased by your company from our client had not been paid for as a result of the fraudulent concealment of your company's indebtedness by your late husband Mr. Tony Twinomugisha who was also our clients Chief Accountant. Our client further discovered a series of cheques issued by your company in purported settlement of your dues, which had been receipted but were never banked and instead were kept aside by your

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late husband. When our client discovered and presented them for payment they were all dishonoured. According to our instructions you were the signatory to all the cheques.

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Upon full investigation our client found that your company was indebted in the sum of U. Shs. 40,631,849/= and demanded repayment of the same. On l8/8197 the administrator of the Estate of your late husband paid to our client U. Shs. 10,000,000/=. To date, however, the outstanding balance of Shs. 30,63 1,849/= remains unpaid despite several reminders and demands by our client.

The purpose of this letter therefore is, as instructed to warn that if you do not pay to us the sum of 30,63 I ,849 together with legal fees so far incurred of Shs. 1,500,000/= within 7 days from the date hereof our client will be left with no alternative but to lodge a formal complaint with the Criminal Investigation Department (CID) for your issuing of bounced cheques and conspiracy to defraud and or theft/obtaining goods by false pretences.

Yours faithfu lly Mulenga & Karemera Advocates c.c. Bishegenda c.c. The Executive Director.

Upon receipt of the above letter she filed an action in the High Court complaining of harassment and intimidation which were calculated to

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extort from her the amount of indebtedness. She further complained that she had been defamed as a result of a false and malicious report made against her to police. She stated that her constitutional rights were violated.

ln his defence the respondent denied liability and at the same time counter claimed from the appellant for Shs. 30,63 1,846/= as the balance outstanding on the goods supplied.

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The learned Principal Judge found that the appellant had suffered harassment, defamation and mental and physical anguish at the hands of respondent and awarded her combined general and exemplary damages of shs. 15,000,000/= as fair compensation for her harassment defamation and mental as well as physical anguish with interest and costs of the suit. The learned Principal Judge dismissed the counterclaim The respondent appealed to the Court of Appeal which aliowed the appeal in part and dismissed the suit and the counterclaim and order that each party must bear its costs in the Court of Appeal and in the High Court, hence this appeal.

There are six grounds in the memorandum of appeal framed as follows:

1. The learned Justices of the Court of Appeal erred in law and fact in the view they took of the pleadings and the issues as framed and in coming to the conclusion that:

> "lt is therefore, necessary for this court to reappraise all the evidence, including the pleadings and submissions, and to come to its own conclusion as to whether the decision of the trial court can be supported"

The learned Justices of Appeal erred in law in not dealing individua-lly with each ground of appeal in the mistaken assumption that such procedure would lead them. 2

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'to deal with a lot of irrelevant materials that were not . . .. . . . Necessary for the determination of the (appeal)".

3 The learned Justices of Appeal erred in law and caused grave injustice to the appellant in this appeal when they proceeded to decide the appeal after submissions had been concluded and without reference to counsel by focussing as. TVinomujuni JA put it,

'On two broad issues, namely

- (a) Whether the evidence adduced by the plaintiff/respondent disclosed and proved a cause of action against the deponent/appellant. - (b) Whether the counterclaim was proved to the required standard." - The learned Justices of Appeal erred in law and in fact in their evaluation of the evidence on record without the advantage of having seen the demeanour of the witnesses to answer to the above issues they had set for themselves. .+ - The learned Justices of Appeal erred in law in allowing the appeal in part and dismissing the counterclaim with the further order that each party bears its own costs here and in the High Court. 5

6 The learned Justices of Appeal erred in law and in fact in not upholding the judgment and decree of the Principal Judge.

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I shall discuss grounds I and 2 separately, ground 3, 4 and 6 together, then ground 5 separately.

Ground I complained of the view the Court of Appeal took of the pleadings and the issues as framed and in coming to the conclusion that:-

> 'lt is therefore necessary for this court b re-appraise all the euidence including the pleadings and. submissions and to mme to its own conclusion."

This statement is a reflection of the provisions of Rule 29(1) of the Rules of the Court of Appeal. Therefore, I cannot fault the Court of Appeal as a first appellate court in its above statement. If further authority is required, this can be found in the decision of Pandua W 11957 EA 336. Sella 7 Anor u Associated Motor Boat 1968 EA 123 and. Peters u SundaA Posts (1958) EA 478. I therefore do not find any justification for the criticism of the Court of Appeal by Dr. Byamugisha Counsel for the appellant. Therefore ground one has no merit and must fail.

Cround 2 complained that the Court of Appeal was in error when it failed to deal with each ground of appeal on the ground that such procedure would lead the court into dealing with irrelevant material. In the lead judgment, Twinomujuni, JA, gave two reasons why there was considerable difficulty in dealing with the grounds of appeal. The first was that the plaint contained mostly generalities without specifics. For instance, it stated that the appellant had been harassed and defamed as a result of the false and malicious report made against her to police, and

that her constitutional rights were violated but the pleadings never stated which of those rights were and whether she was seeking constitutional remedy under Article 50 of the Constitution. Further, looking at the plaint, it never disclosed facts constituting the cause of action and particulars of those facts. Even the written statement of defence never challenged the averments in the plaint as a result 2f it never became an issue at the trial whether the plaint disclosed a cause of action. The second reason for the difficulty was that the issues which were framed were either wrongly framed or none issues. As a result, he stated that the trial Judge dealt with all of them in his judgment, resulting in the counsel for appellant mounting a lot of irrelevant attacks in the judgment. For those reasons he said he would not 6- follow the traditional method of dealing individually with each ground since this was likely to lead him to deal with a lot of irrelevant material that he did not consider necessary for determining the appeal.

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Although normally each ground of appeal should be examined and determined on its merits, in some appeals where grounds of appeal are confusing and at times overlapping or repetitive or offend the rules of this court, they need not be considered individually. In the instant case the learned Justices of Appeal gave reasons for deviating from the traditional methods of dealing individually with each ground of appeal and properly dealt with those which were necessary and relevant to the appeal. As in my view no injustice was caused, would not fault the Court of Appeal. In the result ground 2 must fail.

I now turn to grounds 3,4 and 6. Cround 3, like ground 2 is complaining against the Court of Appeal for having decided the appeal without reference to counsel's submission but on merely basing its decision on the two broad issues, framed by Twinomujuni, JA. The

learned Justice framed those issues in which the other two justices concurred, as follows:-

- (a) whether the evidence adduced by the plaintiff disclosed and proved a cause ofaction against the defendant. - (b) Whether the counterclaim was proved to the required standard

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In my considered view, the reasons which the Court of Appeal gave and which I have already discussed while discussing ground 2 of this appeal equally apply here. I would in the circumstances not repeat them here. Suffice it to say that what was paramount before the Court of Appeal was whether the claim by the plaintiff and the counterclaim by the defendant had been proved before the High Court.

In determining whether the evidence adduced by the plaintiff disclosed a cause of action against the respondent it is necessary to discuss the four grounds of appeal and determine the issue of credibility of witnesses. It must be noted that the issue of credibility and reliability of witnesses as {e{&'\'-- they testified, the court did not come in issue. The learned Principal Judge never ^doubted their credibility and reliability. He merely formed his opinion by inference from the evidence as a whole and held that the plaintiff had been defamed. The Court of Appeal, on the other hand, formed the opposite view by the same method.

Dr. Byamugisha, Counsel for appellant supported the decision of the learned Principal Judge in which he held that the facts complained of in the plaint had proved that the appellant had suffered harassment, defamation, mental and physical anguish. On the other hand Mr. Musisi, Counsel for the respondent, submitted that the Court of Appeal re-evaluated the relevant material and determined whether the claim and the counterclaim had been proved.

|') Twinomujuni, JA who wrote the lead judgment stated:-

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"ft should be noted that she (appellant) did not make ang effort to giue partianlars of the alleged arrest, defamation or ang other loss or damage nor does she indicate tuhich of her anstitutional rights luere atrtailed. or interfered tuith.'

Kikongogo, DCJ concurred uith Twinomujuni, JA uhen sle held: "As far as I am concerned tte uords used in the aduocate's letter utere not in their natural meaning defamatory. ShE hnd to proue lwr allegatiors .......... I am unable to find euidence to support tlw tial Judge's finding thnt the aduocates' letter did tnrass and. intimidate the plaintiff . ...

Kitumba, JA also concurred when she stated:

the respondent failed to plead those uiolations and to addue euidence to proue tlw same".

A.. J\/a/' Considering all the evidence on the record not persuaded by Dr. Byamugisha's arguments. il

Pirstly, there was no evidence led by the appellant to show how either reporting the appellant to police for fraud or theft or the writing of a letter to her by M/S Mulenga & Karemera Advocates, demanding that if she did not pay the debt within 7 days she would be reported to police for possible prosecution, defamed and caused her mental and physical anguish.

l{)

Secondly, there is no evidence that the police ever learnt of the contents of the letter or acted on those contents to the detriment of the appellant or at all.

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Thirdly, there was no evidence that the appellant never signed those cheques and that goods were not supplied by the respondents aqainst those cheques.

Lastly, we were not shown how in view of the above facts, reporting the appellant to police for investigation for either fraud or theft or obtaining goods by false pretences infringed her constitutional rights. Equally I fail to see how the letter from the advocates threatening to report her to police for possible prosecution if she did not pay the debt within 7 days infringed on her constitutional rights.

Mr. Musisi, for respondent, while rightly supported the decision of the Court of Appeal. He cited the case of Benmax v Austin motor Co. Ltd (1955) AC 370 at Dase 375 in which Lord Reid cited Thomas v Thomas tl947l 1 ALLER 582 to support the decision of the court. In that case Lord Thankerton had held:-

> "(l)Where a question of fact hns been tied by a Judge without a jury, and there is rw question of misdirection of himself bg the judge, an appellate court which is disposed to come to a different conclusion on the printed euiderrce, shauld not do so unless if is satr'sfed that ang aduantoge enjoged by the fial judge bg reason of hauing seen and. heard the u;itnesses, could not be suffi,cient to explain or justifg the tial judge's conclusion;

> P) fhe appellate court maA take the uieut that, without hauing seen or heard the uitnesses, it is rtot in ^a

> > ll

position to come to ang satisfactory corrclusion on tLe pinted euidence.

@ me appellate court, eithcr because the reasons giuen bg tLrc tial Judge are not satisfactory, or because it unmistakablg so appears from the euidence, mag be satisfied that he has nat token proper aduantage of his hauing seen and lrcard the u.z'tnesses, and ttrc matter will then become at large for the appellate court. ft is obuious ttwt the issue and. importance of tnuing seen and heard tlrc ultnesses will uary acarding to the class of cases and. it mag be tle iruliuidual ccses in Etestion."

Lord Reid continued :

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"Were ttrcre is no question of credibilitg or reliabilitg of ang uitness, and. in cases utLrere the point in dispute is tle proper inference to be drawn from the proued fads, an appeal court is generally in as good. a position to eualuate tlrc euidence as the trial Judge, and ought not to shink from that task, though it oughl, of course, to giue ueight to his opinion."

fu'cluu\* ^Irespectfully agree with the above die+fgTn the instant case there was no dispute about any credibility or reliability of the witnesses. The only issue was on the proper inference to be drawn from the proved fact. The Court of Appeal was in as good a position to evaluate the evidence as the rial Judge and form an independent opinion though it had to attach importance to the judgment of the learned Principal Judge.

Clearly, there was no evidence to prove that either the report the Executive Director of the respondent company made to the police regarding the loss of their money through forged cheques was false or the

letter M/s Mulenga & Kalemera Advocates wrote to the appellant about the bounced cheques was false. A letter from Mr. Z. Bishagenda, the Administrator of the Estate of late Twinomugisha acknowledged the indebtedness of the deceased husband of the appellant. In the letter, there was payment of Shs. 10,231,849/= outstanding on account of Tyresland. There was an undertaking that they would continue paying the amount owed till the whole debt was cleared. In that same letter, the administrator of deceased's estate appealed to the respondent to let the appellant either remain in the house where her late husband used to live with the appellant or be allowed to take goods on credit from the respondent company, so that she could sell, realise profit and repay the debt.

In my view, as the respondent supplied goods in reliance on the cheques which bore the appellant's signatures, the respondent was perfectly right to report her to police for investigation and for appropriate action. In my view, any course taken by the respondent could not be a foundation for the appellant to file an action against the respondent in tort for defamation.

In the result ground\$ 3 fail.

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Ground 4 complained that the Justices of Appeal erred in law and fact in their evaluation of the evidence on record without the advantage of having seen the demeanour of the witnesses to answer to the above issues they had set for themselves. In my view, my discussion of ground 3 has substantially disposed of ground 4. I would therefore be repeating myself to discuss this ground. In the result ground 4 must fail.

Ground 6 complained that the court of Appeal erred in law and fact in not upholding the judgment or decree of the learned principal Judge.

t3

With due respect to the Counsel for appellant, when he addressed us, he never pointed out to us where the Court of Appeal erred in law and fact and I do not see where the learned Justices erred. In the result, this ground has no merit and must fail.

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Ground 5 deals with counterclaim. That issue had been dismissed by the learned Principal Judge. In the Court of Appeal there was no specific objection against the decision of the Principal Judge on the counterclaim. However, its objection was implicit in ground 2 where there was objection that the Principal Judge had erred in law and fact in finding that the appellant was not legally responsible to make good the dishonoured cheque No. 075339, which she had signed. The appellant admitted having signed it in blank and having handed it to her husband.

After her husband's death some blank cheques signed by the appellant were found in deceased's office. Tiko DW3 filled the amount of money, the payee and the date on instructions of DW4. When the cheque in question was presented for payment, it was dishonoured.

The learned Principal Judge dismissed the counterclaim without considering and determining whether the goods had been supplied to Tyresland shop in respect of the cheque. He dismissed it merely because the plaintiff had not written the names of the defendant or to the order of the defendant and also because she had not written the amount of money which the defendant would withdraw.

On appeal to the Court of Appeal, the counterclaim was dismissed, because Tyresland or Tyresland Ltd. never existed and therefore the appellant could not conceivably own such a company and that there was no wav a non-existent company could order or receive goods from the respondent. Although ttre rc\$H#HlFsigned blank cheques on a bank

account jointly owned by her and her late husband, she did not know what the husband used it for. Moreover the cheques were not signed in contemplation of payment for any goods supplied by the ffirrrt o. anyone else.

In conclusion, Twinomujuni, JA who wrote the leading judgment with which the other 2 justices concurred held that:-

> h is not possib/e for me to hold that a person tuho signs an otherwise completely blank cheqte can be said to haue issued it to angone within the meaning of the definition of thnt word in section .2' of the Bills of Exchange Act. The uord issue:

'means tLrc rst deliue of a bill or note, complete in form to a person uln takes it as a holder". "deliuery' means transfer o;lpossession, actual or constntctiue from one person to another and "holder" mea ns:-

'the pagee or endorsee of a bill or note, who is in possession o3[ it,

or the bearer thereof '.

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The appellant could not be said to be a . Lnlder" since. it laas not a pagee or end.orsetknou)n to tn" qf,{t.mfit ig common knouledge that mang of the cteqtes were filled bg emplogees or agents of the offl\*lt" uitlnut rekrence to or knowledge of the respondent and mang of them tuere filled afier the death of lrcr futsband. By signing blank cheques, some of them mang months before tlrcg were "issued" to the appellant by its outn

T agents, the respondent did not bind herself to tlbliable to anA person to utlnm such a cheqte could be fraudulentlg issued. I find no meit in the aunterclaim."

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The complaint before the Supreme Court was that the Court of Appeal erred in law in allowing the appeal in part and dismissing the counterclaim with further order that each party bears its own costs here and in the High Court.

The counterclaim had been based on the dishonoured cheque No. 075339 for Shs. 4,000,000/=. The appellant had admitted before the High Court that she signed the blank cheque and handed it to her late husband. It was argued on her behalf that she could not be liable for what her husband did with the cheque.

The Court of Appeal never considered the cheque in question on which the counterclaim was based. It merely decided the issue of counterclaim on existence or non-existence of Tlresland Ltd or Tyresland and held that there was no way a non-existent company could order or receive goods from the appellant or any one else.

With due respect to the Justice of Appeal, goods were delivered by the respondent to Tyresland shop along Ben Kiwanuka Street and the cheque in question was not a company's cheque but an individual's cheque. The respondent who was in possession of it, filled up the amount due to it, the payee and the date and, it thus became a complete bill.

It must be noted that the issue of a person in possession of a signed blank cheque is well settled in law. The Hulsbury's Laws of England volume 4, 4tr' Edition paragraph 350 states as follows:-

'Wtrcre a person is in posses sion of an instrument wanting in ang mateial particular le has pima facie authaitg to filI the bill in ang utag he think fit"

The above principle was applied in the case of Gerald Mcdonald & Co. ^V I{csh & Co. 1924 AC 625

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'Tte applicont had implied autlwritg to fill in their names as pagee as theg did ouer the name of tlrc respon\_d"ents and that ulhen so filled up the bill became retrospectiuelg due."

Further, our Bills of Exchange Act (Cap 76) provides in section 20(l)that

> and in like manner uhen a bill is uanting in ang mateial particular the person in possessron of it lns ^apima facie authoitg to fill up the omission in ang utag he thinks."

In my opinion, the respondent having supplied goods which were delivered by the appellant's driver, Musika Brown, in vehicle Reg. No. UXK 848 belonging to the appellant, the respondent who was in possession of the blank cheque signed by the appellant had prima facie authority to fill up the name of the payee, the amount of money for the goods they had supplied and the date. In the instant case, the appellant was not disputing that the goods indicated on the delivery note were not supplied or if supplied, the amount for the goods received was worth le ss than the amount on the cheque. In the result, the counterclajm for Shs. 4,000,000/= should have been allowed by the Court of Appeal. However, because there was no cross-appeal to this court, I shall make no order in


respect of the claim by the respondent grounded on cheque No. 0753339 for Shs. 4,000,000/=. In the result, ground 5 must fail.

Consequently, as grounds I, 2, 3, 4, S, and 6 have failed this appeal must fail. Accordingly the appeal is dismissed with costs here and in the lower courts.

t[ Dated at tvtengo this ...2.\*f. day of 2002

\*,--KAV

A. N. Karokora, Justice of the Supreme Court # THE REPUBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA

## AT MENGO

## GORAIII: [ODOKI CJ, TSEKOOKO, KAROKORA, MULENGA AND KANYEIHAMBA JJSC]

### CIVIL APPEAL NO 19 OF 2OOI

#### BETWEEN

REST TA TWINOMUGISHA...... ..... APPELLANT

#### AND

UGANDA ALLUMINIUM LTD RESPONDENT

[Appealfrom thejudgement ofthe Court ofAppeal (Kikonyogo DCJ, Twinomujuni and Kitumba JJCA,) dated 3 August in Civil Appeal No. 22 of 2002J

#### JUDGMENT OF ODOKI. CJ

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I have had the advantage of reading in draft the judgment prepared by Karokora JSC. I agree with his judgment and the orders he has proposed.

As the other members of the court also agree with the judgment and orders proposed by Karokora JSC, there will be an order in the terms proposed by Karokora JSC.

Dated at Mengo this day of ...2002.

BJ doki CHIEF JUSTICE

## REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT MENGO

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(CORAM: ODOKI, CJ; TSEKOOKO, KAROKORA, MWENGA AND KANYEIHAMBA, JJ. S. C.)

# CIVIL APPEAL NO. 19 OF 2OO1

BETWEEN

RESTITUTA TWINOMUGISHA APPELLANT AND

UGANDA ALUMINIUM Ltd. RESPONDENT

[An appeal from the decision of the Court of Appeat at I(AMPAI-A (KIKONYOCa, DCJ, TWINOMUJUNI and KITUMBA, JJ. A) dated 3'd August, 2001 in Civit Appeal 22 ol2001l

JUDGMENT OF TSEKOOKO. JSC. This is a second appeat from the decision of the Court of Appeal. The Court reversed the judgmenr of the High Court. ln the latter Court The Principal Judge awarded shs.15m/= to the present appellant as damages for defamation.

I have had the advantage of reading in draft the judgmnet prepared by my leamed brother, Karokora, JSC, and I agree that the appeal should be dismissed. I think that the respondent ought to have its costs in this court.

The facts giving rise to these proceedings have been outlined by my learned brother. lneed not repeatthem here.

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The memorandum of appeal contained six grounds of appeal. Dr. Joseph Byamugisha, Counsel for the appellant, argued the grounds of Appeal en bloc. I will make brief observations on ground i, Z and 3. lwill produce them as they are formulated.

1 The learned Justices of the Court of Appeal ened in law and in fact in the view they took of the pleadings and the issues as framed and in coming to the conclusion that:-

"lt is therefore, necessary for this court to re-appraise all the evidence, including tle pleadings and submjssitrns, and to come to its oun conclusion as to uh.ether tle deci.sion of tte tial aurt con be supported".

The learned Justices of the Court of Appeal in not dealing individually with each ground of appeal in the mistaken assumption that such procedure would lead them:- 2.

"to deal with a lot of irreleuant materials ttwt (were) not ......necessary for determination of (tte appeal)".

3. The learned Justices of the Court of Appeal erred in law and caused grave injustice to the appellant in this appeal when they

proceeded to decide the appeal, concluded and without reference Twinomujuni J. A. put it, after submissions had been to counsel by focussing as

"On two broad issues, namely:-

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- (a) Wllether tlle euidence adduced bg the plaintiff/re^spondent di.sclosed and proued a cause of action against tlte defendant/ appellant. - (b) Whetler tle counterclaim was proued to tle required standard".

^Ishould think that the words in quotation in ground one indicate lhat the Court of Appeal was aware of its duty as the Court ot eppeatHa first appellate court. Be that as it may, in his submissions on these grounds, Dr. Byamushisha pointed out that a plaint had been flled setting out the facts giving rise to the suit, and that issues were framed by the trial Principal Judge who awarded the appellant shs.15m/= as general damages for defamation. Learned counsel alluded to certain passages from the lead judgment of the Hon. Justice Twinomujuni, JA. in the Court of Appeal and contended that the observations of the Court of Appeal were unfair. Learned counsel further contended that the members of the Court of Appeal might not have read through the evidence and the arguments in the trial court record. He criticised the court for abandoning the issues framed by the trial court and for framing its own issues. He again criticised the

Court of Appeal for framing its own grounds of Appeal on the basis of which the court erroneously decided the appeal. Counsel contended that the plaint disclosed a cause of action. He urged this court to restore the judgment of the leamed Principal Judge.

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Mr. Musisi, counsel for the respondent, argued grounds 1, 5 and 6 first and grounds 2 and 3last. He supported the decision of the Court of Appeal. lt was his submission that the Court of Appeal reevaluated the evidence properly and came to proper conclusions. He alluded to the same passages in the judgment of Twinomujuni, JA, which were criticised by Dr. Byamugisha and submitted that those passages show that the Court of Appeal re-evaluated the evidence. He supported the action taken by the respondent. Mr. Musisi contended, and here I agree with him, that departure by Twinomujuni, JA, from the common method of considering grounds of appeal according to the order and or the words in which those grounds were formulated did not cause injustice. He argued that Justice Twinomujuni justified the approach he took, namely that issues in the grounds of Appeal were not clear.

ln my experience, it is not uncommon for an appellate judge or any appellate court to rephrase any grounds of appeal so as to make.the subject of appeal clearer and bring into focus the issues canvassed before that appellate court. And this situation normally arises where the memorandum of appeal and arguments thereon are not coherent and concise.

{

Ground one is concerned with issues and pleadings. Issues in the High Court, as a trial court, are framed by virtue of Order 13 of C. P. Rules. The provisions of Rule 1 of that Order set out guidelines in regard to framing issues. The Rule reads as follows:-

"1.(1)Issues arise when a material proposition of law or fact is affirmed by the one party and denied by the other.

Material propositions are those propositions of $(2)$ law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in *order to constitute a defence.*

Each material proposition affirmed by one party $(3)$ and denied by the other shall form the subject of a distinct issue.

$(4)$ **.....................................**

At the hearing of the suit the court shall, $(5)$ after reading the pleadings, if any, and after such examination of the parties or their advocates as may appear necessary, ascertain upon what material propositions of law or fact the parties are at variance, and shall thereupon proceed to frame and record the issues on

$\overline{5}$

# uthich the right d.ecision oJ th-e case appears to depend".

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Clearly a trial court should frame issues from the pleadings of the parties. A trial court is required to frame and record issues on which the right decision of the case appears to depend. And in terms of Rule 5 of Order 18 of C. P. Rules,

'7n suits in uhich rssues ltaue beenframed, th.e CourT shall state its finding or decision, with tle reason therefor, upon each separate issue..........

As pointed out by Twinomujuni JA, the plaint was vague in alleging the facts which constituted the appellant's rights perceived to have been vlolated by the respondent. The relevant paragraphs of the plaint are paragraphs 7 lo 12. At the risk of being lengthy, I am obliged to reproduce these paragraphs which were formulated as follows:

7. Tlere are otler cleqtes of th.e said joint account wlnse particulars the plaintiff does not haue and uhich u)ere not filled in by either tle decea.sed latsband or the plaintiff uthic\ together with oiginals of antnertures 'A' and ,8, tle defendont falselg and maliciouslg on or before 4.9.1998 used to report to tle police CID Jinja Road ttwt the plaintiff hod issted to the defendant false cleques and as a restlt of the said folse and malicious repoft by the defend.ant,

f

plaintiff u)as arrested by the police and chnrged" uith tle offence of issuing afalse cleqte contrary to section 364 (1) (b) of the Penal Code Act. A photocopg of plaintiffs relea.se on bond rssued to her on 4.9.1997 and indicating tlw many times she las been put to inconuenience and expense reporting to police CID Headqtarters in Kampala for bond extension i"s annexed Lereto and marked 'E .

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8. By a letter dated 24.10.97 addressed to her by Mutenga & Karemen, Advocates for the defendant, plaintiff leamt that the actual complaint to the police which led to plaintiffs arresf was fhrs:

"In or about Julg 1997 our client discouered. that goods purclw.sed by gour compang from our client Itnd not been paid for as a result of the fraudulent concealment of gour company's (sic) indebtedness bg gour late lusband Mr. Tong Twinomugklu wlw ruas also our clients sic Chief AccountanL Our client further discouered a senes of clwques fssued by your compqng in purported selllement of gour dues uhich had been receipted but were neuer banked and irl-stead utere kept a.side by gour late hsband. Wh.en our client discouered and presented th.em for pagment th.ey uere all dislwnoured. According to our instructions Vou were signatory to all the cleques.

't

Upon full investigations our client found that your company was indebted in the sum of U. Shs. $40,631,849/$ and demanded repayment of the same. On 18^th August, 1997 the Administrator of the estate of your late husband paid to our client U. Shs. 10,000,000/ $=$ . To date however the outstanding *balance* of Shs.30,631,849/ $=$ remains unpaid despite several reminders and demands by our client".

The said words were falsely and maliciously reported and stated of the plaintiff by the defendant and are in their natural meaning defamatory of the plaintiff. A photocopy of the scrid letter is annexed hereto and marked 'F'.

The plaintiff does not and has never owned or been a 9. member of a company called Tyresland (U) Ltd, the said company has never issued cheques to the defendant nor indeed has the plaintiff ever issued the cheques to the defendant for the consideration of any goods or her late husband's indebtedness or at all and the defendant's campaign and crusade against the plaintiff is for the purposes of extorting money against her and/or by use of the police and/or the police report and/or the threat of criminal arrest and

prosecution and other similar unlawful means obtaining tlw sum of 5hs.3o,631,848/: from her.

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10. Afier total despair, tle plaintiff irstructed aduocates rtlo addressed a letter dated 3.9.1998 to the defendant protesting its acfions a,s utell plaintiffs innocence but defendarrt, bg its aduocates letter dated 11.9.1998, not onlg claimed tlnt defendont lwd s-upplied good.s to tlrc plaintiff but also claimed th^t tlrc plaintiff twd "admitted liabilitg for the debt bg making a parl paAment of Slts. 1 O,O0O,0O0/ =........

11. The plaintiff lw.s had her constitutiono-l nghb curtailed and/ or interfered with and ll,rls been exposed to public latmiliation, odium and contempt by defendant's false and malicious repoi and sle lns suffered loss and damage and much anguish and drstress.

12. Fur7h.er, the plaintiff has so far reported to tle police by rea.son of defendant's false and malicious report against lw so far 28 times and euery time she reports to police she uses ler pick-up tohich she emplogs in h.er business and her other business s IeTt unattended to and she lns sttffered loss and damage and will claim general ancl special damages a.s utell as damages for

abuse of tlw police in order to harm her' and for extortion and/ or oPPression"-

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ln response, the respondent filed its written statement of defence' By paragraph 1 thereof, the respondent denied every allegation containedintheplaintandwhichwasnotadmitted'lnsofaras relevant, paragraphs 6 to 11 of the defence averred as follows:

6. Paragraphs 7 and I of the plaint are parTlg admirted as relates to the report to police and the Ielter tuitten bg M/ s Mulenga & Karemera Aduocates. Tle defendartt denies any malice or defamation in reporting to police and slnll auer thot the said actions taere taken for tlrc sole purpose of recoueing the debts from the plaintiff tlvough the ilpptA of goods dating o.s far back as Julg, 1 995'

7. Paragraph 9 is denied and tlw defendant slnll auer in response tlwt goods tttere supplied to the ptaintiff in a shop in Kampala called Tgresland on Ben Kitaanuka Street uthich sle and her agents ackttouledged. Pagment for some of the goods utas aluags effected tlvough cteques signed bg the plaintiff and her late larcband.

t0

The plaintiffs late husband would from time to 8. time give cheques to Florence Tiko with instructions to fill in a specified amount payable to the defendant.

Several cheques issued by the plaintiff were $9.$ dishonoured and concealed by the plaintiffs husband who instructed his subordinate $F$ . Tiko not to report the cheques to management.

10. Paragraph 10 of the plaint is admitted".

It was on the basis of these pleadings that the learned Principal Judge framed the following issues:

- Whether the facts quoted in paragraphs 8 of the plaint 1. are correct. - If they are correct, whether they justified the $2.$ defendants conduct of reporting plaintiff to police. - Whether the defendant conducted a campaign and 3. crusade against plaintiff for purposes stated in paragraph 9 of the plaint. - Whether defendant's actions or conduct have caused 4. loss or damage to plaintiff. - plaintiff purchased goods from the Whether 5. defendant. - Whether plaintiff issued the cheques to the defendant 6. in payment of the goods.

# Whether plaintiff owes the sum claimed in the counterclaim to defendant. 7

According to Order 13, issues are (in theory) framed by Court. However in practice issues are framed or agreed upon by counsel ior parties where parties are represented as was the case in this case.

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ln view of the contents of paragraph 6 of the written statement of Defence, I am a little puzzled that issue No.1 was framed as it is or at all. lndeed in view of paragraphs 6 and 7 of the defence, issues 1, ² and 3 appear to have not been framed properly. Wasn't the issue here whether the words and conduct complained of amounted to defamation?

Because of the provisions of Orders 13 and 18 alluded to earlier, ^I think that Mr. Justice Twinomujuni was perfecfly entitled in his criticism of the framing of the issues. Furthermore, since evidence had been adduced and was available and as the Court of Appeal, as a first appellate Court, was required by Rule 29(1)(a) of the Rules of that Court, to re-appraise the evidence and draw its own inferences of fact, the leaned Justice of Appeal properly exercised his discretion when he decided to focus on two broad-issues namely:

- (a) whether the evidence disclosed a cause of action against fie respondent and; - (b) whether the counterclaim was established.

Those were really the matters in dispute.

o \Mth due respect, I am not persuaded by the arguments of leamed counsel for the appellant that on the basis of the facts in this appeal, the approach adopted by Twinomujuni JA in considering and decidtng the appeal was wrong, or caused grave, or' indeed, any injustice to the appellant. Nor do I accept the implication of the contention that the court of Appeal did not study the record. At least in his judgment Twinomujuni JA. indicates he read the record and indeed the framing of ground one in this appeal implies this.

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ln view of the evidence available, and with all due respect to both the learned Deputy Chief Justice and Kitumba, JA, I do not think the evidence was closer to establishlng the tort of defamation. l-,te traditional view of defamation is that defamation is the publication of ^a statement which tends to lower a person in the estimation of rightthinking members of society generally, or which tends to make those members of society shun or avoid that person: See lVinlEeld on Tort Thetort of defamation consists in the publication of a false and derogatory statement respecting another person without lawful justification. on the basis of the pleadings and the evidence on the record, I do not agree that the respondent's Lawyers harassed or intimidated the apPellant.

There was a basis for the action taken by both the respondent and their lawyers. ln his evidence Bishagenda Zachary, the coadministrator of the estate of the deceased, showed the appellant some of the dishonoured cheques which had been given to the

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respondents in payment for goods obtained from the respondents. The appellant said "signatures resembled hers". In her own evidence during cross-examination, she admitted that "all the cheques appear to bear my signature". Now if that is the position would it be unlawful for the respondent to demand of the appellant for her to honour those cheques. On compassionate and moral grounds, one may say that the respondents acted in haste. But this was a question involving a lot of business money, about shs.40m/= due to a business concern. The respondents needed the money for its business. Apparently they had to show that they were pursing the recovery of the debts before the respondent could be compensated by insurance. In these circumstances the respondent was entitled to do what it did. That was lawful. It was not anywhere near defamation since it was factual. For the foregoing reasons, I think that grounds 1, 2 and 3 should fail.

$\cdot$

I would dismiss this apeal with costs to the respondent here and below.

Delivered at Mengo this 24th day of April 2002.

$\mathcal{M}$

W. N. TSEKOOKO. OF THE SUPREME COURT.

### THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA **AT MENGO**

#### (CORAM: ODOKI C. J., TSEKOOKO, KAROKORA, MULENGA AND **KANYEIMBA, JJ. S. C.)**

## **CIVIL APPEAL NO.19 OF 2001**

### **BETWEEN**

### RESTATUTA TWINOMUGISHA ::::::::::::::::::::::::::::::::::::

#### $A$ $N$ $D$

#### UGANDA ALLUMINIUM LTD :::::::::::::::::::::::::::::::::::

(Appeal from the judgment of the Court of Appeal (Kikonyogo DCJ, Twinomujuni and Kitumba JJ. A) at Kampala in Civil Appeal No.22 of 2000 dated 3^rd August, 2001).

## **JUDGMENT OF MULENGA, JSC**

I have read in draft the judgment prepared by my learned brother Karokora JSC and I agree that the appeal ought to fail. I concur with the orders he proposes.

Dated at Mengo this 24^th day of April 2002.

J. N. Mulenga **Justice of the Supreme Court**