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THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF
UGANDA AT KAMPALA
(COMMERCIAL COURT
DIVISION)
HCT-00-CC-CS-0192 OF 2005
JOHN MUSEVENI :::::::::::::::::::::::::::::::::
PLAINTIFF
VERSUS
KIKAMULO CO-OPERATIVE SAVINGS ]
& CREDIT SOCIETY
] :::::::::::::: DEFENDANT
BEFORE: THE HONOURABLE
MR. JUSTICE YOROKAMU BAMWINE
J U D G M E N
T:
The Defendant is a deposit taking Co-operative society. The
Plaintiff was its customer. In December 2004, he demanded for his money.
The
Defendant failed and/or refused to pay him. He claims that he has suffered loss
and damage as a result of the Defendant’s
failure and/or refusal to pay
him. Hence this suit.
In reply to that claim, the Defendant claims that
the Plaintiff is unknown to it, as he is not a registered member of the society.
The Defendant has also averred that it has never kept, held, dealt with or in
any other way what so ever been a recipient of the
Plaintiff’s monies.
Its defence is further that if any of its staff received any monies from the
Plaintiff, it was purely
a private arrangement for which the Defendant cannot be
held liable.
At the scheduling conference, many of the above
Defendant’s denials were retracted. For instance the parties agreed that
the
Plaintiff was a customer to the Defendant. It was further agreed that the
Defendant is a deposit taking Co-op Society, operating
as any other financial
credit institution. Court has consequently been called upon to
decide:
1. Whether the Plaintiff had a sum of Shs.8,391,000- to his credit on
22/12/2004.
2. Whether the Defendant breached its duty to the Plaintiff when
it failed to honour the Plaintiff’s demand.
3. Whether the Plaintiff
is entitled to the remedies sought.
Counsel:
Mr. Peter Katutsi for the
Plaintiff.
Mr. Samuel Ojiambo for the Defendant.
Before I delve into
the determination of the above issues one by one, let me say something about the
burden of proof in cases of this
nature.
In law, a fact is said to be
proved when the Court is satisfied as to its truth. The evidence by which that
result is achieved is
called proof. 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 that 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.
These principles form the cornerstone on which our
adversarial system of adjudication operates. In the instant case, the Plaintiff
has stated that he operated an account with the Defendant; that he had
Shs.8,391,000- on it; and that the Defendant refused to give
it to him on
demand. The burden lies on him to prove on a balance of probabilities that what
he is saying is true.
As to whether the Plaintiff had a sum of
Shs.8,391,000- to his credit by the 22/12/2004, he was the only witness for his
side. He
produced documentary proof of his account and account balances in form
of 2 passbooks, P. Exh. 1. He has also produced deposit slips,
P. Exh. 11.
These exhibits show that on 6/12/2004 his account balance was Shs.7,971,000-.
There is also evidence that on 14/12/2004
he deposited a sum of Shs.420,000- to
make a total of Shs.8,391,000- as of that date.
The Defendant’s
initial stand was that the Plaintiff was unknown to it, a total stranger so to
say. The written statement of
defence indicates that according to the
Defendant, the Plaintiff is not its registered member and he is not in any other
way known
to them. All this has been put to rest by the Plaintiff’s
documentary exhibits.
The Defendant’s own witness, DW3 Maureen
Kiggumba, was the one receiving cash and refunding money to depositors. The
books
which have been produced were being kept by her until she was sent away.
She identified the entries in them as having been made
by her. The
Defendant’s witnesses had earlier on claimed that during the indicated
time, the society was not operating. Her
evidence is to the contrary.
According to her, she never at any one given time received any notice stopping
her from receiving deposits
from customers.
I accept as truthful the
Plaintiff’s evidence that he was the Defendant’s customer. I also
accept his evidence that on
the indicated dates, he made cash deposits totaling
to Shs.8,391,000-. To-date, he has not been refunded that money. As for DW3
Maureen Kiggumba, I must say that I was favourably and greatly impressed by the
clear and straight forward manner in which she gave
account of all that she knew
about the matter. In my view, the defence denials cannot stand. I hold that by
22/12/2004, the Plaintiff’s
account balance stood at
Shs.8,391,000-.
As to whether the Defendant breached its duty to the
Plaintiff when it failed to pay his money upon demand, I think this goes without
saying. The banker’s duty to his customer is to repay the money or any
part of it upon demand being made by the customer.
The Plaintiff stated that he
made the demand for his money on 22/12/2004 but was never paid. It would appear
that in the course
of time, the bank was broken into and cash stolen. If any
such theft took place, this was of course unfortunate of the Defendant.
However, the loss was occasioned to the Defendant, not to the Plaintiff. For
the Defendant to succeed in its defence, it must show
that the Plaintiff’s
loss was attributable to his own negligence which negligence must be linked to
or immediately connected
with the theft itself. In otherwords, the Plaintiff
must be shown to have been the proximate cause of the loss.
In the
instant case, the Plaintiff deposited cash in the bank. The money so deposited
became at once the property of the Defendant.
The Defendant thereupon became
indebted to the Plaintiff for an equivalent sum. In the absence of any evidence
that the Plaintiff
was in any way connected with the thieves, it is very clear
to me that the Defendant has no escape route. Accordingly, it breached
its duty
to the Plaintiff when it failed to pay his money upon demand.
As to
whether he is entitled to the reliefs sought, I think he is. The law will not
suffer a wrong to be without a remedy. He is
entitled to the refund of his
money. He is accordingly decreed a sum of Shs.8,391,000- to be recovered from
the Defendant. The
Plaintiff has claimed interest on the decretal sum from
1/1/2005 till payment in full. The basis of an award of interest is that
the
Defendant has kept the Plaintiff out of his money; and the Defendant has had the
use of it himself. So he ought to compensate
the Plaintiff accordingly. Where
a person is entitled to a liquidated amount and has been deprived of it through
the wrongful act
of another person, he should be awarded interest from the date
of filing the suit. See: Sietco –Vs- Noble Builders (U) Ltd SCCA No.
31/95. In the circumstances of this case, I have decided that interest be
awarded on the decretal sum at the rate of 25% per annum from
the date of filing
the suit (07/03/2005) till payment in full. I so order.
As for damages for
breach of contract, this of course denotes the kind of damage which the law
presumes to follow from the wrong complained
of. Counsel did not propose to
Court any figure he would consider reasonable. I have considered the misfortune
that befell the
Defendant and the conduct of the Defendant’s officials
telling deliberate lies in a bid to defeat the Plaintiff’s claim.
I
consider a sum of Shs.500,000- (five hundred thousand only) adequate
compensation to him as general damages. It is awarded to
him. He is also
awarded the costs of the suit.
In the final result, Judgment is entered
for the Plaintiff against the Defendant. The following orders are
made:
i. Refund to him of Shs.8,391,000- (eight million three hundred ninety
one thousand only).
ii. Damages: Shs.500,000- (five hundred thousand
only).
iii. Interest on (i) at the rate of 25% per annum from the date of
filing the suit till payment in full. Interest on (ii) shall
be on the same
rate per annum from the date of Judgment till payment in full.
iv. Costs of
the suit.
...........................
Yorokamu
Bamwine
J U D G E
20/02/2006
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.RTF of original document