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THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF
UGANDA AT KAMPALA
(COMMERCIAL COURT
DIVISION)
HCT-00-CC-CS- 0207 OF 2004
HWAN SUNG LTD :::::::::::::::::::::::::::::::::::::::
PLAINTIFF
VERSUS
KAJJOBA BOSCO SSEMWEZI :::::::::::::::::::::::
DEFENDANT
BEFORE: THE HONOURABLE MR. JUSTICE YOROKAMU
BAMWINE
J U D G M E N T:
The
Plaintiff’s action is for recovery of Shs.5,200,000- from the Defendant
being money allegedly advanced to the Defendant
as pre – finance to buy
fish. The Defendant’s response right from the time the claim was drawn to
his attention is that
he has never borrowed any money from the Plaintiff and is,
therefore, not indebted to it in any way. He admits to have applied for
a loan
from the Plaintiff under his signature. He also admits that the application was
supported by a letter from the LC1 Chairman
of Bunga Trading Centre which was
attached to it. His case is that he never received any response to that
application.
Two issues were framed for determination:
1. Whether the
Plaintiff loaned money to the Defendant as alleged.
2. If so, whether the
Plaintiff is entitled to the reliefs sought and
quantum.
Representation:
Mr. Fisher Sengooba for Plaintiff.
Mr.
Charles Dalton Opwonya for Defendant.
As to whether the Plaintiff loaned
money to the Defendant, there is on record the evidence of Okiror Anthony, PW1.
It is to the effect
that the Defendant got a loan from the Plaintiff in the sum
of Shs.10m. That the loan was not in cash but by way of fish nets.
It is
PW1’s evidence that the Defendant embarked on the payment until
Shs.5,200,000- remained unpaid. That the Defendant would
bring in fish and the
loan payments were by way of deductions from the fish proceeds.
From the
evidence of this witness, the fish suppliers, including one Bosco who is
indicated in the Plaintiff’s records as having
been regularly paying back
money to the company, did not actually bring the fish to the company factory at
Ntinda. Company officials
used to go to the Landing Sites where the
transactions used to take place. Okiror’s evidence on this point was
rather confusing.
He states at one point:
“I was involved in the collection process of that money. He used to bring fish and when ever he did so, he would pay Shs.200,000-. In other words, out of the fish proceeds, we would deduct Shs.200,000-. He would bring fish depending on the catches at Muwama but I have never been there”.
He continues:
“He has been bringing fish, I make the receipt for him. I have personally been doing so.”
Under cross-examination,
this is part of what PW1 said:
“........... Bosco would not bring fish to the factory. He would bring fish to the landing site. I have never met him at the landing site.”
From the evidence of this witness, he never
personally met the Defendant or even the Bosco in the records at any stage of
this case
at the landing site. However, he claims to have been issuing receipts
to him at the landing site and even collecting fish from him.
I do not know
whether this witness was aware of the contradictions in his testimony. Be that
as it may, I did not find the contradictions
in his evidence minor. They are
fundamental. They go to the root of this case, the identification of the
Defendant as the Bosco
who was allegedly given money by the Plaintiff company
but did not supply fish to it as promised. His evidence gave me the impression
that he is either a deliberate liar; he didn’t know what he was talking
about; he was a confused witness; or he was covering
up something. Either way,
I was not impressed by the evidence of this witness. I considered it too
unreliable to be relied upon.
The other witness, PW2 Jo, former Managing
Director of the Plaintiff company said that the Defendant obtained credit from
his company
twice. That this was in January 2003 and June 2003. About the
January transaction, it is the evidence of PW2 that the Defendant
bought 500
fish nets worth Shs.10m. That he made refunds and by June 2003, the balance was
Shs.3,600,000-. That the Defendant went
to him again for a loan of Shs.2m and
the balance became Shs.5,600,000-. That by the time he disappeared, the balance
was Shs.5,200,000-.
His evidence is that the Defendant signed for the money in
his presence. The Defendant denies all this. He says that he made his
application for a loan in June 2003, the Plaintiff did not respond to it, and in
March 2004, he received a letter from M/S Kadeti
Business Consult Ltd claiming
to be acting on instructions of the Plaintiff to recover the amount in question
herein. That he instructed
his lawyers to protest on his behalf and later
received summons relating to this case.
PW3, the Handwriting expert,
looked at the signatures said to be those of the Defendant and concluded that
they were his. As fate
would have it, all the signatures looked at by this
witness are disputed by the Defendant. The handwriting expert’s report
is
not based on any undisputed signature of the Defendant to raise the inference
that he compared the impugned signatures with the
Defendant’s spacemen
signature and came up with the conclusion he did. The report is to that extent
unhelpful to Court.
I have very carefully considered the
Plaintiff’s evidence in this case. PW2 insisted that the Defendant signed
P. Exh. 1 in
his presence. The borrower is indicated thereon as Kajjoba Bosco
Ssemwezi, a fish monger. As fate would have it, although the Defendant
said
that he applied for the loan in writing, the Plaintiff did not produce any such
agreement. The Plaintiff’s case would
have made more sense if such an
application had been retained and the signature on it was to be compared with
the impugned one on
the Agreement. As matters stand now; the signature on the
agreement is consistent with the one on the Receipts, P. Exh. 11. However,
there is no consistent evidence showing that the Defendant was the author of the
signatures on the Receipts since PW1 Okiror never
met the Defendant at any one
given time at the landing site and yet whoever signed as such did so, according
to PW1, at the landing
site. Along side this unsatisfactory state of affairs is
the evidence that the Defendant has been seen several times affixing his
signature on Court papers. He is alleged to have signed on the summons to enter
appearance. The signature thereon resembles the
ones he has consistently
denied. As fate would have it, upon receipt of a threat from the Plaintiff to
take drastic action against
him, the Defendant is on record to have acted
through his lawyers, M/S Opwonya & Co. Advocates, who advised the Plaintiff
to
channel all correspondence on the mater to the Defendant through themselves.
PW4 claims to have served the Defendant personally,
despite that advice to the
Plaintiff. The Defendant denies the signature thereon. It resembles all other
signatures disputed by
him.
On the other hand, the Defendant is on record
to have sworn a number of affidavits during the pendancy of this case. One is
dated
26/4/2004 and another 1/11/2004. The Defendant does not deny the 2
signatures thereon. The two are consistent with a signature
appearing on a
Residential Identity Card D. Exh. 4, dated 25/5/2004 and the spacemen signatures
he gave Court when he was testifying.
The inherent consistency of his
undisputed signatures, ironically also relied upon by the Plaintiff, and the
inconsistency between
those signatures and the ones on the purported agreement
and the various Receipts are matters which have caused considerable difficulty
to the Court. I have not seen any good excuse or at all why, if as claimed the
Defendant had ever previously borrowed Shs.10m from
the Plaintiff on a similar
application, no documentary evidence could be tendered in that regard. And if,
any such loan had been
previously advanced to him, why did it become necessary,
in June 2003, for the LC1 Chairman to introduce him to the company?
Does
this mean that the previous loan of Shs.10m was made to him without any such
letter of introduction and a photograph or any documentation
at
all?
These and many other weaknesses in the Plaintiff’s evidence
have caused considerable discomfort to Court regarding the Defendant’s
liability. Since the Plaintiff was advised by the Defendant’s lawyers
that all correspondence would hence forth be channeled
to the Defendant through
themselves, which they did not do, it is possible that the person whom PW1
Okiror used consistently to sign
on the Receipts was the same person who signed
on the summons to file the defence as the Defendant herein.
In law, a
fact is said to be proved when Court is satisfied as to its truth. The general
rule is that the burden of proof lies on
the party who asserts the affirmative
of the issue or question in dispute. When the party adduces evidence sufficient
to raise a
presumption that what he asserts is true, he is said to shift the
burden of proof: that is, his allegation is presumed to be true,
unless his
opponent adduces evidence to rebut the presumption. The standard of proof is on
the balance of probabilities. In the
instant case, Plaintiff has alleged that
the Defendant owes it money. The Defendant denies it. The burden is on the
Plaintiff to
prove the alleged indebtedness. From my analysis of the evidence
above, it is possible that the Bosco who before 23/6/2003 borrowed
Shs.10m for
fish nets from the Plaintiff, and another Shs.2m on 23/6/2003 under the impugned
agreement, P. Exh. 1, and also signed
as the recipient of the Summons to file a
defence on 15/4/2004, is different from Kajjoba Bosco Ssemwezi, the Defendant
herein.
In view of that possibility and doubt, the Plaintiff has not
satisfactorily or at all discharged its burden of proof. Accordingly,
Court is
not satisfied on a balance of probabilities that the Plaintiff loaned money to
the Defendant or the Defendant is indebted
to the Plaintiff in the sum of
Shs.5,200,000- as alleged or at all. In view of that conclusion, Court holds
that the Plaintiff is
not entitled to the reliefs sought against the Defendant.
It is immaterial that the Plaintiff is a financial giant who ordinarily
wouldn’t be chasing a financial dwarf for nothing. Some people could be
playing games on the Plaintiff for reasons best known
to them. In all these
circumstances, I would dismiss this suit with costs to the Defendant and I do
so.
Yorokamu Bamwine
J U D G E
29/11/2005
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