THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT JINJA
CIVIL APPEAL NO. 022 OF 2016
(Arising out of Civil Suit No. 037 of 2013 Bugiri Court)
JUDGMENT ON APPEAL
BEFORE HON. LADY JUSTICE EVA K. LUSWATA
Introduction and background
This is an appeal from the decision of His Worship Komaketch Kenneth Magistrate GDI Iganga, delivered on 2/02/2016.
Baliraine Saul was the plaintiff in the lower court in which he sued Mohammud Sempa for the recovery of Shs. 2,500,000 the subject of an contract between them for the repair of Baliraine’s motor vehicle registration No. UAL 982V. In his judgment, the Learned Magistrate found that all legal formalities were present to indicate that the agreement entered into by these two parties was binding upon them and that Sempa signed it with his free will and consent. He ordered him to perform the contract by paying the sum agreed. Sempa being dissatisfied with that decision presented this appeal on an amended memorandum which is based on two grounds that:-
- That the learned trial Magistrate erred in law and fact when he failed to properly evaluate the evidence on court record thereby arriving at a wrong decision.
- That the learned trial Magistrate misdirected himself on principles of law governing contract when he relied on an agreement dated 30th May, 2012 that was procured through trickery, mistake and misrepresentation which occasioned a miscarriage of justice thereby arriving at a wrong decision.
Duty of the Court
My powers and limits as a first appellate Court are well documented. I must subject the evidence and all materials adduced at the trial to a fresh and exhaustive scrutiny and then draw my own conclusions. In doing so, I must still have due regard to the judgment the subject of appeal. Even so, I am not bound necessarily to follow the trial Court’s findings of fact if it appears that the court clearly failed in some way to take account of particular circumstances and probabilities and as a result came to a wrong judgment. I hasten to add that my conclusions may be limited by the fact that I did not see or hear the witnesses and due allowance shall be made in that regard. See for example, Coghlan Vrs Cumberland (1891)1 ch 704, Ephraim Ongom & Anor Vrs Francis Benega SCCA No. 10/1987  Kalr 86 (following R Vrs Pandya (1957) EA 336 and Selle & Anor Vrs Associated Motor Boat Company Ltd & Anor (1968) EA 123.
Following my order, counsel for the parties filed written submissions. Counsel Balidawa Ngobi presented the appeal which was opposed by counsel Musigire Martin. Ngobi submitted omnibus submissions on the two grounds and Musigire made submissions only on the second ground, under the incorrect assumption that the amended memorandum contained one ground only. That said, I do find that the first ground was too general and thus contravened the provisions of Order 43 rr 2 CPR and ought to be struck off the memorandum. However, counsel Ngobi chose to argue the two grounds together which could mitigate that anomaly. Musigire did not necessarily administer any prejudice against his client as a result. I would accordingly consider the submissions of both counsel as presented.
Resolution of the grounds of appeal:-
The main bone of contention in Mr. Ngobi’s submissions is that Sempa was forced to sign the agreement while in police custody. He argued that had the Learned Magistrate properly evaluated the evidence, he would have come to the conclusion that the agreement was executed under duress, misrepresentation, mistake and undue influence and thus, the same was invalid and unenforceable at law. He added that the motor vehicle involved in the accident was Reg. No. UAA 982V Golf and not UAL 982V and therefore the impugned agreement was unenforceable and a strange document to Sempa. He concluded that Sempa who did not voluntarily execute the agreement, had no intention to enter a legally enforceable agreement with Baliraine.
Mr. Musigire disagreed. He argued that the evidence by the Sempa himself and all other witnesses indicates that the agreement was signed in Sempa’s home without any presence of trickery, misrepresentation or mistake. He accordingly prayed for dismissal of the appeal with costs.
Mr. Ngobi’s first line of argument is that the impugned agreement is in respect of motor vehicle Registration no. UAA 982V of which Sempa had no knowledge. I see nothing in the memorandum of appeal to suggest that the description of the motor vehicle was a matter put forward on appeal. Likewise, although counsel Ngobi gave a detailed account of why he thought Sempa signed the agreement under coercion, duress and undue influence, those three were not mentioned in the memorandum of appeal. Mr. Ngobi’s submissions on those two points would thus be a departure from the pleadings which offends Order 43 rr 2 CPR which provides in short that:
The appellant shall not, except by the leave of the court, argue or be heard in support of any ground of objection not set forth in the memorandum of appeal…”
8] The Supreme Court in their decision of Interfreight Forwarders (U) Ltd and East African Development Bank CACA No. 33 of 1992, underscored the importance of correct drafting of the danger and consquences of departure. They were in that appeal discussing Order 6 rr 1-3 CPR which correspond to Order 43 rr 2 CPR. The Court held inter alia that:
Order 6 Rule 1 of the Civil Procedure Rules provides that every pleading shall contain only a statement in precise form of the material facts on which the party pleading relies for claim or defence as the case may be, but not evidence by which they are proved.
The system of pleadings is necessary in litigation. It operates to define and deliver with clarity and precision the real matters in controversy between the parties upon which the court will be called upon to adjudicate between them. It thus serves the double purpose of informing each party what is the case of the opposite party which will govern the interlocutory proceedings before the trial which the court will have to determine at the trial,
A party will not be allowed to succeed on a case not setup by him and 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”.
I will accordingly give no consideration to those submissions and turn to the merits of what was raised in the amended memorandum of appeal.
There appears to be no contest against the contents of the agreement signed between Sempa and Baliraine. It is contended however that it was signed under circumstances of trickery, mistake and misrepresentation. Indeed those are factors that would render a contract void and unenforceable at law. A re-evaluation of the evidence should assist the Court to determine whether Sempa was indeed tricked or misled into signing the contract.
The agreement in contention was admitted as PE.2. It is dated 30/5/2012 and indicates an address of Nkusi Parish, Bujiri Town Council, the same address given for Sempa. It indicates that Sempa undertook to pay Shs 2,500,000 to Baliraine for repairing motor vehicle Registration No. UAL 982V that he crushed or involved in an accident. There are eight witnesses to the agreement including Egessa Moses, its author.
In his written statement of defence, Sempa raised a defence that the agreement was procured through duress, coercion, threats and undue influence and as such not enforceable. In my view, that line of defence would have required Sempa to give particulars in his defence in line with Order 6 rr 3 CPR. He did not do so. The provisions of that rule are mandatory and can render a pleading inadmissible. See for example, Interfreight Forwarders (U) Ltd and East African Development Bank (supra) and Ms. Fang Min vs. Belex Tours & Travel Ltd. SCCA No. 6/2013 consolidated with SCCA No. 1/2014 Crane Bank Ltd. vs. Belex Tours & Travel Ltd. The Magistrate should have struck off the defence at its inception or at least should have not entertained any evidence pointing to duress, coercion and undue influence. It appears there was no objection from Balirane’s lawyers and the matter proceeded on this wrong footing. Even then, Sempa would have no basis to lodge an appeal on grounds of trickery, mistake and misrepresentation, when his defence was not grounded on any of those three facts. I am afraid, Mr. Ngobi seriously muddled up the pleadings both at the trial and at the appeal.
My finding has been that the defence of trickery, mistake or misrepresentation was never raised before the Learned Magistrate. It cannot thus be raised on appeal. Even it was so raised in the lower court, as is the case for duress and undue influence, it would have required Sempa’s pleadings to contain particulars facts. Although some of Mr. Ngobi’s submissions touched on facts of trickery, and misrepresentation, they could not be raised on appeal if not raised in the first instance at the trial. I repeat that Sempa’s pleadings at both the trial and on appeal, were his undoing. This court would have no basis to question the decision of the Learned Magistrate.
I would thus regrettably refrain from re- evaluating the evidence and take it as concluded by the Magistrate that Sempa was in custody at Bujiri Police on 30/9/2012 but signed the agreement at his home upon his release. His decision was the result of a careful and extensive evaluation of the evidence of both sides. He also recorded his observation that Balirane and his witnesses exhibited demeanor of truth that impressed him. As an appellate court, I am conscious to give weight to such observation and only interfere with it on sound justification. The pleadings filed for Sempa would afford me no room or justification to question the Learned Magistrate’s decision.
In conclusion I find no merit in both grounds raised on appeal. The appeal stands dismisses with costs to the respondent.
I so order.
EVA K. LUSWATA