I am satisfied that PW3 (Oburu) was indeed an employee or agent of the defendant company….PW3 knew the exact period of the plaintiff’s
fish deliveries to the defendant company (namely, September – November 1998). He knew the exact places where those fish deliveries
took place (namely Kiyindi landing site and at the defendant’s fish factory at Luzira). He knew the names of the defendant’s
fish buyers at Kiyindi (one Abdalla Haruna and Picho), and the Defendant’s paymaster at Luzira (one Kasozi, effective from
3rd November, 1998. He knew which facets of the defendant’s fish business were transacted at Kiyindi (namely, weighing the fish
and recording their price, etc); and which ones were transacted at Luzira (namely, paying the fish sellers their dues for their deliveries).
He knew and described accurately the exact weights of fish that were delivered by the plaintiff at Kiyindi (namely, 39,401 kgs of
small fish and 5,200 kgs of the big fish). He knew and described all the operational procedures used by the defendant in the business
of buying, receiving, sorting, weighing, preparing, storing, transporting and exporting the fish. He effected all the payments that
were ever made to the plaintiff prior to 3rd November, 1998 (when Kasozi took over); and then prepared Exhibit P1 by way of documentary record and confirmation of the plaintiff’s
remaining balance of Shs 15 million to be paid to the plaintiff subsequently. Indeed, Shs 4 million out of that 15 million was subsequently
paid to the plaintiff by Kasozi himself no less ….. this court can harbour no doubts whatsoever but that PW3 was fully privy
to the transactions in issue, and that he could not have derived all this detailed knowledge and information about all these official
transactions except through having had an extremely intimate working relationship with the defendant’s business operations
…… he was indeed an employee or agent of the Defendant company at the material time.
Both PW2 (Wamala Mbowa) and PW3 (Oburu) did recount in the minutest detail every aspect of PW1’s evidence. They both confirmed
the material period as being September – November 1998; the primary place of the fish deliveries as being Kiyindi landing site,
the buyers as being Haruna and Picho (employees of the defendant company), and the place of the partial payments as being at the
defendant’s Luzira fish factory. All three confirmed that it was Oburu who prepared the crucial Exhibit P1 confirming the plaintiff’s outstanding claim of Shs
11,041,240/= and that he did so at the defendant’s company offices and in the presence of the plaintiff and Mbowa Wamala. These were basically simple fishermen telling a simple story. I found them to be consistent and their story to be wholly convincing.
None of them wavered at all with their evidence.”
I cannot fault the learned trial Judge’s finding in any aspect. He heard the testimonies and observed the witnesses’
demeanour with meticulous care as evidenced by his pertinent comments in respect thereof.
The circumstances surrounding Ex P1 raise no doubt in my mind whatsoever. I find PW3’s testimony crystal clear and straightforward.
I should add perhaps that the learned Judge did not only consider Ex P1 but took into account all the relevant evidence on record
concerning the purchases, deliveries and payments in respect thereof. I thus find Ms. Wasswa’s criticism of the learned Judge’s
finding quite unjustified and unsubstantiated.
I would dismiss grounds 1, 2 and 4.
Regarding ground No.3, learned counsel argued that the learned Judge’s reliance on the case of Dhanji Ramyi v Malde Timber Company (1970) EA 422, at 427 on the ground that it involved a personal matter whereas the instant case concerns a big company where it was not easy to know the
suppliers immediately. That is why the original defence was a mere general denial, as it had to be filed hurriedly in order to beat
time. The amended defence was later filed specifically denying the claim together with the counter claim. The defendant/appellant
is a big company and records took time to be dug up. Learned counsel submitted it was erroneous for the learned Judge to impute bad
Mr. Tuyiringire in reply pointed out that the amendment of the defence was effected almost one year after the filing of the plaint.
The original defence was a total denial, then by way amendment they acknowledged a long period of transaction with the respondent.
Most surprisingly, the appellant was on the connected computer. There was therefore no excuse for the delay. This was an unprecedented
U-turn of the defence where knowledge of the respondent had been totally denied. The learned Judge was correct to apply the ratio
in Dhanji’s case. He prayed court to dismiss the appeal.
The case of Dhanji Ramji v Malde Timber Company (1970) EA 422 is significant for the holding that:
“While the amended pleading is conclusive as to the issues for determination, the original pleading may be looked at if it contains
matter relevant to the issues (dictum of Newbold, JA in Eastern Radio Service v R.J Patel (trading as tots) (1962) EA818 applied).
Newbold, JA said this:
“Logic and common sense requires that an amendment should not automatically be treated as if it, and nothing else had ever existed.”
In this that the court pointed out significant inconsistencies between the original and the amended defence, which could not be satisfactorily
In the instant case the learned trial Judge while applying the ratio in Dhanji’s case to facts before him observed:
“…and especially so where the inconsistency is (as in the instant suit) a startling one. It is all the more startling
given that the Defendant alleges a counterclaim of Shs 4,000,000/= from an original transaction of Shs 50 million. It stretches the
imagination too far for the defendant to have not remembered so huge a transaction given especially that the same defendant now alleges
that he had a counterclaim of Shs 4 million against the plaintiff.”
The learned trial Judge accordingly rejected the Defendant’s total explanation.
It is further important to note that the appellant’s own accountant, Patrick Batte (DW3) admitted being connected to a computer:
“I enter data about the company’s purchases and sales. I enter them from Delivery vouchers (for purchases) and from invoices
(for sales). I enter them into the computer … for Wamala’s account, I am the one who made these entries …..”
However, the appellant’s legal officer, Dorothy Namubiru, in her affidavit dated 11th August 2000, gave a different story:
“At the time of filing the applicant/Defendant’s defence, the Applicant/Defendant could not trace any record dealing with the plaintiff
as alleged in the plaint or at all.
That after thorough and laborious searching in the Applicant/Defendant’s archives, the Applicant/Defendant found records of
transactions between the parties to the suit ….”
The foregoing coupled with the statement in the original defence that:
“At no single time did the defendant ever purchase fish, or receive supply of fish from the plaintiff, nor make part payment
to the plaintiff whatsoever as alleged in the plaint” makes the appellant’s case unsustainable.” All justify the learned Judge’s remark when he said:
“I am afraid, I find the defendant’s version of the suit transaction extremely difficult to believe.”
I similarly find the appellant’s case unsustainable and would dismiss it with costs.
Since my Lords Byamugisha and Kavuma, JJ.A both agree, it is so dismissed with costs here and below.
Dated at Kampala this ……11th …day of ……January……….2006.