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THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF
UGANDA AT KAMPALA
(COMMERCIAL COURT
DIVISION)
HCT-00-CC-CS-0188-2002
GLOBAL FORWARDERS &
CLEARING LTD
:::::::::::::::::::::::::::::::::: PLAINTIFF
VERSUS
HENRY MUGENYI
t/a KIFARU HIGH COURT BAILIFFS
& AUCTIONEERS :::::::::::::::::::::::
DEFENDANT
BEFORE: THE HONOURABLE MR. JUSTICE YOROKAMU
BAMWINE
J U D G M E N T:
The plaintiff won a
suit against Uganda Revenue Authority and Another. This was HCCS No. 583/1998.
It was granted reliefs as follows:
i. General damages:
Shs.30,000,000-.
ii. Special damages: Shs.236,300-.
iii. Interest on (i)
and (ii) at 22% per annum from the date of filing till payment in
full.
(iv). Costs of the suit for 2 counsel.
Following the conclusion
of that suit, a warrant of attachment was issued against the URA whereupon it
paid to the defendant herein,
a Court Bailiff, a sum of Shs.80,548,055-. Of
this, Shs.30,236,300- was the decretal total amount, Shs.21,004,622- was
interest
and the balance costs.
According to the plaintiff’s
Managing Director, Ernest Kamara, the plaintiff received Shs.15,000,000- on
12/7/2001 by a Nile
Bank cheque. The next day, 13/7/2001 the plaintiff was
issued with another cheque of Ug. Shs.26,000,000- which bounced on presentation.
On 20/7/2001 the defendant banked on to the plaintiff’s account a sum of
Shs.18,000,000-. The plaintiff has never been paid
any more money. The only
issue herein is whether the plaintiff is entitled to payment of Shs.18,300,922-
from the defendant as prayed.
On 22/3/2006 the file was put before me for
directions. I found that the suit had earlier on been dismissed. It was
however reinstated
vide an order made in HCMA No. 0781 of 2004. I directed that
the suit be fixed for hearing on a date in May, 2006.
On 17/5/2006 the
suit came up for hearing. Mr. Bogere Jeff appeared for the plaintiff. He
intimated to Court that the defendant
had been served through the press on
27/4/2006. This was after the defendant’s lawyers had declined service on
the ground
that they had lost touch with the defendant and therefore lacked
instructions from him to continue with the conduct of the case.
Satisfied that
adequate attempts had been made for the service on the defendant, I allowed the
plaintiff to proceed exparte. Hence
this judgment. From the plaintiff’s
sole witness, PW1 Kamara, the plaintiff was paid Shs.33,000,000- out of a total
award
of Shs.80,548,055-. Court has seen evidence of the two payments to the
plaintiff; one in the sum of Shs.15m and the other in the
sum of Shs.18m. Court
is satisfied with the evidence of this witness that the plaintiff has never
received any more money. In the
Written Statement of Defence, the defendant had
acknowledged indebtedness in the sum of Shs.6,000,000- only. He had stated that
he
had made an additional Shs.2,255,000- to the plaintiff, a payment hotly
contested by the plaintiff. In the same WSD, the defendant
had alleged that in
a meeting which sat in the chambers of Birungi and Co. Advocates, the plaintiff
through the Managing Director
had accepted payment less than Shs.51,300,922-,
the basis for its claim in this suit.
The law is that where a party
alleges that it paid the other and the other denies receipt of the payment, the
burden is on the party
who alleges payment to prove it. Accordingly, the
defendants claim that he paid Shs.2,255,000- to the plaintiff can only be proved
by evidence produced before Court. Such evidence has not been adduced. There
is no agreement adduced in Court or even attached
to the WSD to raise inference
that the plaintiff made a commitment to receive less than it was entitled to.
Accordingly, no proof
has been offered to Court of any amicable agreement
between the plaintiff and the defendant for the plaintiff to receive and/or take
a lesser sum of Shs.41,255,000- as opposed to Shs.51,300,922-. It is noteworthy
that by insisting on payment of Shs.51,300,922-,
the plaintiff would have
abandoned the claim for costs in favour of his counsel in HCCS No. 583/98 and
the defendant who handled
the execution aspect of it. By simple arithmetic,
this was a cool Shs.29,247,133-. Court would need the clearest of proof to
conclude
that this was not enough for counsel and the Bailiff in that matter.
Such proof has not been offered by the defendant, said to have
become evasive
ever since he was sued.
As a Bailiff, he was duty bound to make full
accountability of the amount he was paid by URA. He didn’t. Instead, he
sought
to implicate the plaintiff in a commitment to receive less than it was
entitled to. In law, 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 by an action by A. The basis of the action is rooted in a
quasi-contract on
the footing of an implied promise to pay. The other basis is
that of an unjust benefit or enrichment, that is, the action is applicable
whenever the defendant has received money which, in justice and equity, belongs
to the plaintiff under circumstances which render
the receipt of it by the
defendant a receipt to the use of the plaintiff. Whichever way it is looked at,
there must e evidence of
the payment sought to be recovered.
Applying the
above facts to the circumstances herein, Court is satisfied on the balance of
probabilities that the defendant did not
remit a sum of Shs.18,300,922- to the
plaintiff.
I would enter judgment for him in that sum and I do
so.
As regards the claim for general damages, the matter was commenced by
way of summary procedure, implying that there was no anticipated
award of
general damages. After the defendant had been granted leave to defend the suit,
the plaintiff could have amended or sought
leave to amend the plaint to include
a prayer for general damages. It did not. A party is expected and is bound to
prove the case
as alleged by him and as covered in the issues framed. He will
not be allowed at the trial to change his case or set up a case inconsistent
with what he alleged in his pleadings except by way of amendment of the
pleadings: Interfreight Fowarders (U) Ltd –Vs- EADB [1994-95] HCB
54.
I think this is an un acceptable case of counsel seeking to
take advantage of an absent defendant to obtain a benefit not prayed for
in the
plaint. I disallow the prayer for general damages.
As regards
interest, the plaintiff’s prayer is for interest on the award of special
damages from the date of judgment till payment
in full. It did not state any
preferred rate. I order that interest be paid on the decretal amount at the
rate of 23% per annum
from the date of judgment till payment in full.
In
the final result, judgment is entered for the plaintiff against the defendant in
the terms already stated herein above and with
costs to the plaintiff. I order
so.
Yorokamu Bamwine
J U D G E
15/06/2006
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.RTF of original document