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THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT
KAMPALA
(COMMERCIAL COURT DIVISION)
HCT-00-CC-CS-0662 OF
2004
TARSIS B. KABWEGYERE ::::::::::::::::::::::::::::::
PLAINTIFF
VERSUS
SHEIKH ADAM SEMUGABE :::::::::::::::::::::::::::::
DEFENDANT
BEFORE: THE HONOURABLE MR. JUSTICE YOROKAMU
BAMWINE
J U D G M E N T:
The
Plaintiff’s claim against the Defendant is for recovery of Ug.
Shs.20,400,000- received by the Defendant from the Plaintiff
and costs of the
suit. The case was filed under 0.33 of the Civil Procedure Rules. Under Misc.
Application No. 0664/2004 the Defendant
was granted leave to defend the suit.
He filed a defence through M/S Ngaruye Ruhindi, Spencer & Co. Advocates of
Mbarara. In
May 2005, there was an attempt to serve the Defendant through his
lawyers. They wrote back to say that they no longer had instructions
in the
matter. An attempt to serve him personally was fruitless. The Court made an
order for substituted service. Still he did
not appear. The Plaintiff was
accordingly allowed to state his claim and prove it in the absence of the
Defendant.
From the evidence as presented to Court, in July 2003, the
Plaintiff was desirous of facilitating some of the members of his constituency
to obtain motorcycles for them, on hire purchase basis. The Plaintiff was
introduced to the Defendant, a dealer in motorcycles,
by his colleague Hon.
Ellioda Tumwesigye of Sheema North. The Plaintiff approached the Defendant on
the same issue and upon the
Defendant’s confirmation that he would obtain
and supply the said motorcycles, the Plaintiff paid the Defendant a sum of
Shs.20,400,000-
in one installment. The Defendant signed for it. The
motorcycles were supposed to be delivered within 2 weeks after the said payment.
To date, the Defendant has not delivered a single motorcycle nor has he made any
effort to refund the said money. The evidence of
PW1 Prof. Kabwegyere, PW2
Enock Nkongi and PW3 Comfort Tumwesigye Kabwegyere is the same on this
point.
From their evidence, I’m satisfied that the Plaintiff paid
and the Defendant received money for the delivery of motorcycles
to the
Plaintiff’s Constituency. In his defence, the Defendant had averred that
he agreed with the Plaintiff that he would
supply a total of 200 motorcycles in
4 phases. That for each phase 50 motorcycles would be supplied on the
arrangement that for
each phase, Shs.60m would first be advanced to the
Defendant, and upon delivery of the 50 motor cycles, the balance would be paid
to him. He claims that he received only Shs.14,400,000- in cash and a post
dated cheque of Shs.6m from one Nkonge as an advance
payment. He claims that
the cheque for Shs.6m was dishonoured. He has not appeared to substantiate his
allegations against the
Plaintiff.
I have considered the evidence of the
three witnesses. It is to the effect that on 3/10/2003 the Defendant went to
the Plaintiff’s
office in Ishaka for money for the said motorcycles. That
he took it under his signature on a voucher. The voucher is on record
as P.
Exh. 11. It shows that Shs.20,400,000- was signed for. There is further
evidence that the Defendant attempted to refund the
same to the Plaintiff, as
per P. Exh.1 dated 13/12/2003 with a promise that he would pay the balance of
Shs.400,000- in cash, but
the said cheque bounced on presentation. To date,
this money has not been paid. I have seen no reason to doubt their evidence.
I’m satisfied that the Defendant received it.
As to whether the
Defendant delivered the motorcycles, there is no evidence that he did. The
evidence on record is that he did not
supply them. There is also evidence that
following constant checks and demands/threats to the Plaintiff and his employees
in Ishaka,
the Plaintiff later refunded what his constituents had deposited
under the scheme. I’m satisfied that no motorcycle has been
delivered to
date.
As to whether the Plaintiff is entitled to the remedies sought, I
think this is quite obvious. Money which is paid to one person
which rightfully
belongs to another, as where money is paid by A to B on a consideration which
has wholly failed, is said to be money
had and received by B to the use of A.
It is recoverable through an action by A. From the evidence of PW1, PW2 and
PW3, the consideration
for which the payment was made to the Defendant has
wholly failed. Therefore, the Defendant is under obligation to refund it. It
is the Plaintiff’s prayer that he be refunded a sum of Shs.20,400,000- and
that the Defendant pays interest on it at the rate
of 25% per annum from the
date of Judgment till payment in full. These prayers are granted to him. The
Defendant shall also pay
the costs of the suit.
In view of the above
orders, the Defendant’s counter claim which is unsupported by evidence
cannot stand. It is dismissed.
In the result, Judgment is entered for
the Plaintiff against the Defendant. He is ordered to:
i. Refund to the Plaintiff a sum of Shs.20,400,000- (Twenty million four hundred thousand).
ii. Pay interest on the decretal sum at the rate of 25% per annum from the date of Judgment till payment in full.
iii. Pay costs of the
suit.
It shall be so.
Yorokamu Bamwine
J U D G E
30/06/2005
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.RTF of original document