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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
APPELLANT
AND
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
3rd 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 3rd
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 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 3/9/93 after the deceased had died on 2/9/93.
After the deceased's demise, Ms Tiko opened the drawer of deceased's desk
in his office 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.
40,831,849/=. But, because some of the old cheques could
not be recovered, the
debit balance on the account showed a sum of Shs. 30,631,849/=.
Mr. A.M. Jha, DW4 the Executive Director of the respondent company, returned
from India and learnt that the deceased had misappropriated
a sum of Shs.
47,731,000/= 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 contrary to section 364(1)(5)
of the Penal
Code Act. She 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,
Re: Bounced Cheque
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 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.
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 18/8/97 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 purpose of this letter therefore is, as instructed to warn that if you do not pay to us the sum of 30,631,849 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 faithfully
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 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.
In his defence the respondent denied liability and at the same time counter
claimed rom the appellant for Shs. 30,631,846/= as the
balance outstanding on
the goods supplied.
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
allowed 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: "It 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"
2. The learned Justices of Appeal erred in law in not dealing individually with each ground of appeal in the mistaken assumption that such procedure would lead them.
"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. Twinomujuni 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."
4. 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.
5. 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.
6. The learned Justices of Appeal erred in law and in fact in not upholding the judgment and decree of the Principal Judge.
I shall discuss grounds 1 and 2 separately, ground 3, 4 and 6 together, then
ground 5 separately.
Ground 1 complained of the view the Court of Appeal took of the pleadings and the issues as framed and in coming to the conclusion that:-
"It is therefore necessary for this court to re-appraise all the evidence
including the pleadings and submissions and to come 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 Pandya VR (1957) EA 336, Sella 7 Anor v
Associated Motor Boat 1968 EA 123 and Peters v Sunday 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.
Ground 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 of 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 to 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.
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. Ground 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 of action against the defendant.
(b) Whether the counterclaim was proved to the required standard.
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 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:-
"It should be noted that she (appellant) did not make any effort to give particulars of the alleged arrest, defamation or any other loss or damage nor does she indicate which of her constitutional rights were curtailed or interfered with.'
Kikonyogo, DCJ concurred with Twinomujuni, JA when she held: "As far as I am concerned the words used in the advocate's letter were not in their natural meaning
defamatory. She had to prove her allegations I am
unable to find evidence to support the trial Judge's finding that the advocates'
letter did harass and intimidate the plaintiff
"
Kitumba, JA also concurred when she stated:
the respondent failed to plead those violations
and to adduce evidence to prove the same".
Considering all the evidence on the record not persuaded by Dr. Byamugisha's
arguments.
Firstly, 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.
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.
Thirdly, there was no evidence that the appellant never signed those cheques
and that goods were not supplied by the respondents against
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 page 375 in which Lord Reid cited Thomas v Thomas (1947) 1 ALLER 582 to support the decision of the court. In that case Lord Thankerton had held:-
"(1) Where a question of fact has been tried by a Judge without a jury, and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge's conclusion;
(2) The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence. (3) The appellate court, either because the reasons given by the trial Judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court. It is obvious that the issue and importance of having seen and heard the witnesses will vary according to the class of cases and it may be the individual cases in question."
Lord Reid continued :
"Where there is no question of credibility or reliability of any witness, and in cases where the point in dispute is the proper inference to be drawn from the proved facts, an appeal court is generally in as good a position to evaluate the evidence as the trial Judge, and ought not to shrink from that task, though it ought, of course, to give weight to his opinion."
I respectfully agree with the above dictum 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 trial 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.
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.
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.
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 way a non-existent company
could order or receive goods
from the respondent. Although the appellant signed
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 respondent or anyone
else.
In conclusion, Twinomujuni, JA who wrote the leading judgment with which the other 2 justices concurred held that:-
" It is not possible for me to hold that a person
who signs an otherwise completely blank cheque can be said to have issued it to anyone within the meaning of the definition of that word in section "2" of the Bills of Exchange Act. The word issue:
'means the first delivery of a bill or note, complete in form to a person who takes it as a holder", "delivery" means transfer of possession, actual or constructive from one person to another and "holder" means:-
"the payee or endorsee of a bill or note, who is in
possession of it,
or the bearer thereof".
The appellant could not be said to be a "holder" since was not a payee or
endorse known to the respondent. It is common knowledge
that many of the cheques
were filled by employees or agents of the appellants without reference to or
knowledge of the respondent
and many of them were filled after the death of her
husband. By signing blank cheques, some of them many months before they were
"issued" to the appellant by its own agents, the respondent did not bind herself
to the liable to any person to whom such a cheque
could be fraudulently issued.
I find no merit in the counterclaim."
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 Tyresland 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, 4th Edition paragraph 350 states as follows:-
'Where a person is in possession of an instrument wanting in any material
particular he has prima facie authority to fill the bill
in any way he think
fit"
The above principle was applied in the case of Gerald Mcdonald & Co. V Nash & Co. 1924 AC 625
"The applicant had implied authority to fill in their names as payee as
they did over the name of the respondents and that when so
filled up the bill
became retrospectively due."
Further, our Bills of Exchange Act (Cap 76) provides in section 20(1) that
" and in like manner when a bill is wanting in
any material particular the person in possession of it has a prima facie
authority to fill up the omission in any way 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 less than the amount on the cheque. In the result, the counterclaim 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 1, 2, 3, 4, 5, and 6 have failed this appeal must
fail. Accordingly the appeal is dismissed with costs here
and in the lower
courts.
JUDGMENT OF ODOKI, CJ
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.
JUDGMENT OF TSEKOOKO. JSC.
This is a second appeal from the decision of the Court of Appeal. The Court
reversed the judgment of the High Court. In 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 learned
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. I
need not repeat them here.
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 1, 2 and 3. I will
produce them as they are formulated.
1. The learned Justices of the Court of Appeal erred 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:-
"It is therefore, necessary for this court
to re-appraise 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".
2. 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:-
"to deal with a lot of irrelevant materials that (were)
not necessary for determination of (the 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, after submissions had been concluded and without reference to counsel by focussing as Twinomujuni J.A. 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 defendant/ appellant.
(b) Whether the counterclaim was proved to the required standard".
I should think that the words in quotation
in ground one indicate that the Court of Appeal was aware of its duty as the
Court of Appeal
as a first appellate court. Be that as it may, in his
submissions on these grounds, Dr. Byamushisha pointed out that a plaint had
been
filed 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 learned
Principal Judge.
Mr.
Musisi, counsel for the respondent, argued grounds 1, 5 and 6 first and grounds
2 and 3 last. He supported the decision of the
Court of Appeal. It 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.
In 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.
(2) Material propositions are those propositions of 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.
(3) Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue.
(4) ....................................................................................
(5) At the hearing of the suit the court shall, 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 which the right decision of the case appears to depend".
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,
"In suits in which issues have been framed, the Court shall state its finding or decision, with the 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 violated by the respondent. The relevant paragraphs of the plaint
are paragraphs 7 to 12. At the risk of being lengthy,
I am obliged to reproduce
these paragraphs which were formulated as follows:
7. There are other cheques of the said joint account whose particulars the plaintiff does not have and which were not filled in by either the deceased husband or the plaintiff which, together with originals of annextures 'A' and 'B' the defendant falsely and maliciously on or before 4.9.1998 used to report to the police CID Jinja Road that the plaintiff had issued to the defendant false cheques and as a result of the said false and malicious report by the defendant, plaintiff was arrested by the police and charged with the offence of issuing a false cheque contrary to section 364 (1) (b) of the Penal Code Act. A photocopy of plaintiffs release on bond issued to her on 4.9.1997 and indicating the many times she has been put to inconvenience and expense reporting to police CID Headquarters in Kampala for bond extension is annexed hereto and marked 'E'.
8. By a letter dated 24.10.97 addressed to her by Mulenga & Karemera, Advocates for the defendant, plaintiff learnt that the actual complaint to the police which led to plaintiffs arrest was this:
"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 (sic) indebtedness by your late husband Mr. Tony Twinomugisha who was also our clients sic 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 late husband. When our client discovered and presented them for payment they were all dishonoured. According to our instructions you were signatory to all the cheques.
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 18th 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 said letter is annexed hereto and marked 'F'.
9. The plaintiff does not and has never owned or been a 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 the sum of Shs.30,631,848/=from her.
10. After total despair, the plaintiff instructed advocates who addressed a letter dated 3.9.1998 to the defendant protesting its ctions as well plaintiff's innocence but defendant, by its advocates letter dated 11.9.1998, not only claimed that defendant had supplied goods to the plaintiff but also claimed that the plaintiff had admitted liability for the debt by making a part payment of Shs. 10,000,000/=
11. The plaintiff has had her constitutional rights curtailed and/or interfered with and has been exposed to public humiliation, odium and contempt by defendant's false and malicious report and she has suffered loss and damage and much anguish and distress.
12. Further, the plaintiff has so far reported to the police by reason of defendant's false and malicious report against her so far 28 times and every time she reports to police she uses her pick-up which she employs in her business and her other business is left unattended to and she has suffered loss and damage and will claim general and special damages as well as damages for abuse of the police in order to harm her, and for extortion and/or oppression".
In response, the respondent filed its
written statement of defence. By paragraph 1 thereof, the respondent denied
every allegation
contained in the plaint and which was not admitted. In so far
as relevant, paragraphs 6 to 11 of the defence averred as follows:
6. Paragraphs 7 and 8 of the plaint are partly admitted as relates to the report to police and the letter written by M/s Mulenga & Karemera Advocates. The defendant denies any malice or defamation in reporting to police and shall aver that the said actions were taken for the sole purpose of recovering the debts from the plaintiff through the supply of goods dating as far back as July, 1995.
7. Paragraph 9 is denied and the defendant shall aver in response that goods were supplied to the plaintiff in a shop in Kampala called Tyresland on Ben Kiwanuka Street which she and her agents acknowledged. Payment for some of the goods was always effected through cheques signed by the plaintiff and her late husband.
8. The plaintiffs late husband would from time to time give cheques to Florence Tiko with instructions to fill in a specified amount payable to the defendant.
9. Several cheques issued by the plaintiff were 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:
1. Whether the facts quoted in paragraphs 8 of the plaint are correct.
2. If they are correct, whether they justified the defendants conduct of reporting plaintiff to police.
3. Whether the defendant conducted a campaign and crusade against plaintiff for purposes stated in paragraph 9 of the plaint.
4. Whether defendant's actions or conduct have caused loss or damage to plaintiff.
5. Whether plaintiff purchased goods from the defendant.
6. Whether plaintiff issued the cheques to the defendant in payment of the goods.
7. Whether plaintiff owes the sum claimed in the counterclaim to defendant
According to Order 13, issues are (in theory)
framed by Court. However in practice issues are framed or agreed upon by counsel
for
parties where parties are represented as was the case in this
case.
In 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.
Indeed 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
perfectly 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 the respondent and;
(b) whether the counterclaim was
established.
Those were really the matters in dispute.
With
due respect, I am not persuaded by the arguments of learned counsel for the
appellant that on the basis of the facts in this
appeal, the approach adopted by
Twinomujuni JA in considering and deciding 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.
In 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 establishing
the tort of defamation. The traditional view of defamation is that defamation is
the publication
of a statement which tends to lower a person in the estimation
of right-thinking members of society generally, or which tends to
make those
members of society shun or avoid that person: See Winfield on Tort.
The tort 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. In
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 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.
I would dismiss this appeal with costs to the respondent
here and below.
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. 1 concur with the orders he proposes.
Dated at Mengo this 24th day of April
2002.
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