THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT JINJA
CIVIL APPEAL NO.170 OF 2012
(Arising out of the Chief Magistrates Court of Jinja Civil Suit No. 013 of 2008)
- MUGWERI MOSES
- MUGWERI RUTH……………………….…………RESPONDENTS
JUDGMENT ON APPEAL
BEFORE HON. LADY JUSTICE EVA K. LUSWATA
This is an appeal from the decision of Her Worship AmakoPatricia, Magistrate Grade I, Jinjadelivered on 05/12/2012. The record of the lower Court indicates that the second defendant was Mugweri Ruth and not Mugweri Grace as indicated in the memorandum of appeal. I accordingly made an amendment to the memorandum of appeal, and this Judgment refers to Mugweri Ruth.
The facts admitted by the lower court are that between July and November 2016, the appellant Mugema, in three separate written agreements purchased a growing planation of sugar cane from the respondents on land measuring 8 ½ acres for a sum of Shs. 2,670,000. The sugar cane matured and was due for harvesting in July 2007. However, while the appellant was in the process of pursuing a permit from the Kakira Sugar Works, the respondents harvested the cane to their benefit. His demands for a refund of the contract price were ignored, thus the suit.
The trial Magistrate was not convinced that the appellant had proved any breach by the respondents. She in addition found that events happened that frustrated the contract and neither party could be blamed. Judgment was accordingly entered in favour of the respondents with costs.The appellant being dissatisfied with that decision presented this appeal on three grounds that:-
- The trial Magistrate erred in law and fact when she failed to evaluate the evidence thereby arrivingat the wrong decision
- The learned trial Magistrate erred in law and fact when she held that the appellant had not proved a cause of action against the respondents
- The learned trial Magistrate erred in law and fact when she relied only on the evidence of the respondents to give judgment against the appellant.
Duty of the Court
My powers and limitations as a first appellate Court are now well settled. I am under duty to subject the entire evidence on record to fresh and exhaustive scrutiny and make my own conclusions. In doing 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. I hasten to add that my conclusions may be limited by the fact that I did not see or hear the witnesses to test their veracity and due allowance shall be made in that regard. See for example R Vrs. Pandya (1957) EA 336and SanyuLwangaMusokeVrs Sam Galiwango SCCA No. 48/1995.
Musigire Martin represented the appellant while the respondents were represented by MuzilansaShaban. Both counsel filed written submissions as directed. I noted that when this appeal first came up for hearing on 8/2/2017, counsel Muzilansa indicated that he intended to raise a point of law, that by the by the time the appeal was filed, the appellant had not taken out the decree of the judgment of the lower Court. He did not indicate what effect that omission had on the appeal. My advise then had been for appellant’s counsel to address that objection in their submissions. Neither counsel addressed the point of law, and I accordingly construed that it had been abandoned. I will likewise make no decision on it.
Resolution of the grounds of appeal:-
I do agree with the submission that a court should before making a decision, equally evaluate evidence adduced by either party. The decision of the Supreme Court in Bogere&AnotherVrs Uganda SCSC No. 1/2997would be helpful. It is a decision in a criminal appeal but the point of interest is that evaluation of evidence was being discussed. The Court held:
“It is fundamentally wrong to evaluate the case for the prosecution in isolation and then consider whether or not the case for the defence rebuts or casts doubt on it. Indeed no single piece of evidence should be weighed except in relation to all the rest of the evidence….To hold that such proof has been achieved, the court must not base itself on the isolated evaluation of the prosecution evidence alone but must base itself upon the evaluation of theevidence as a whole…..it is incumbent on the court to evaluate both versions judicially and give reasons why one and not the other version is accepted. It is a misdirection to accept the one version and then hold that because of that acceptance per se the other version is unsustainable.”
In my view, the Magistrate fairly and exhaustively considered evidence of either party before making a decision. At page two of her judgment, she gave a brief narration of the evidence offered by either party. She followed this up with an evaluation of each witness and therein, why she believed one witness against the other. That evaluation was made with the backdrop of what the parties had agreed in the first place, and the events that happened before and after the alleged fire which allegedly destroyed part of the sugar cane. She did not accept the respondents’ version before considereing that of the appellant or vice versa. She evaluated either side concurrently. There was thus no merit in the argument that the Magistrate relied on the evidence of the respondents to give judgment against the appellant.
Accordingly, the third ground fails.
Ground one and two
The agreement for the sale of growing sugar cane between the parties was not in dispute. The intention of the parties in all three agreements (admitted as P1, P2 and p3 respectively) is that the respondents sold and the plaintiff purchased and then paid for the sugar cane in full. It would follow then that once the agreements were executed, the sugar cane, became the appellant’s property to dispose of at will. In paragraph 8 of the plaint, the appellant contended that when the sugar cane matured and was due for harvesting, the respondents hastily harvested and sold it without remitting any proceeds to him.
Upon those facts. I would consider the growing sugar cane a type of real chattel. The complaint was that the respondents without lawful justification, willfully interfered with it in a manner inconsistent with the appellant’s rights to it, which translates to the tort of conversion. See for example FouldesVrs. Willoughby (1841)8 M & W 540, 548 quoted inSalmond&Heuston on the Law of Torts 21st Ed. I agree then with the submission that the appellant is on that ground bound by his pleadings. He accordingly bore the burden of proving the claim of conversion on a balance of probabilities.
I see nothing in the evidence presented for the appellant in the lower court to indicate that it is the appellants and no other person who harvested and carried away the first batch of sugar cane on the 4.5 acres of land. According to the appellant, he made the purchase in mid July 2017 and thereafter did not return to the land for five months. That when he returned at a time he knew the sugar cane would have matured, he found the sugar cane on all 8.5 acres missing. No witness was presented to confirm who had actually cut the sugar cane.
The only evidence is that of PW2 and PW3 who claimed to have escorted the appellant to collect money from the respondents. Each did not profess exactly to know the actual agreement between the two parties and according to DW1,the appellant informed him he had sold cane to the respondents which was clearly not the case. That when asked, the 1strespondent stated he had no money and pointed them to some sugar cane that the appellant found not worth the value he wanted. According to PW3, when the 2nd respondent was asked to pay money to the appellant, she too stated she has no money and asked him to await the return of her husband, the 1st respondent.
That evidence would not necessarily point to the respondents as those who had cut the sugar cane. As noted by respondent’s counsel in their submissions, the evidence of PW2 and 3 was suspect. The final agreement of sale was executed on 5/11/2016 and according to the appellant, he stayed away from the land for five months. It was thus not possible that he was escorted by PW3 to the respondent’s home in December 2006 to demand compensation for the sugar cane that got destroyed during mid July 2017.
In my view, and the Magistrate found as much, the respondents adduced more cogent evidence to explain the missing sugar cane. The 2nd respondent who knew the appellant well, observed him harvest the first batch of sugar cane and turn it into molasses. She even permitted him to keep part of his molasses and machinery in her garage and observed him sell off some. She went on to state that she was present soon after the fire was reported and observed that her sugar cane together with that of the appellant and others, was severely burned. She then reported the matter to her supervisor at the SCOUL. She continued that the appellant harvested the rest of his sugar cane after the fire but left it in the shamba. I note that the Magistrate considered the 2nd respondent a credible witness and noted as much in her notes. She chose to believe her testimony as opposed to that of the appellant. As an appellant court I would be very reluctant to discredit that observation, since it is the Magistrate who had the opportunity to watch her testify.
In addition to her evidence, I consider that DW3 and 4 were also credible in their evidence that they visited the land and watched the appellant harvest his sugar cane and turn some of it into molasses. The only contest against those two witnesses was the fact that their respective offices did not exist in law at the material time, and that they did not furnish proof that they receipted the money obtained from the appellant. There was no contest that those two witnesses had ever been elected into the offices they claimed to hold. It may well be that those offices were dismantled by operation of law. However, the court takes judicial notice that in most, if not all parts of Uganda, committee members of respective local councils continued to carry out their duties until the fresh elections were held. That notwithstanding, the importance of these two witnesses was not the fact of their offices or what they obtained from the appellant, it was more the fact that they saw and spoke to him as his employees harvested sugar cane off the land.
There was yet still other cogent evidence to support the 2nd respondent. According to DW5, she reported the fire and her burnt sugar cane on 14/7/2007.He acted on it by evaluating its viability as a raw product for their factory. He was present and supervised that particular sugar cane being collected and taken to their factory. It is a serious omission for this witness not to have carried with him details of his findings and payments made to the 2nd respondent. However, it was the appellant’s claim that his sugar cane and not that of the respondents disappeared,it understandable that they did not consider that evidence as important. And as the trial Magistrate observed, this particular witness was credible and had no personal motive to lie to Court. Again, DW3 and DW4 also responded to the alarm when the fire started and saw the burnt cane. DW4 stated that he was one of those who were contracted by both parties to harvest the burned cane. There was no serious contradiction in his testimony as contended by appellant’s counsel because he cleared the confusion when he stated that he participated in the second harvest alone.
I do not agree with the submission made for the appellant that the Magistrate shifted the burden of proof to the appellant to prove that he did not crush part of the cane into molasses. The appellant’s claim is that the respondents in breach of their agreement, harvested the sugar cane, sold it and declined to pay him the proceeds of sale. In rebuttal, the respondents claimed and showed that it is the appellant who harvested the cane on two occasions, firstly to make molasses and secondly, when it was burned down. This was only a testimony made in defence and did not shift the original burden for the appellant to prove his case.
On the other hand, I do agree with respondent’s counsel that the Magistrate’s finding that the contract was frustrated was misconceived. As I pointed out earlier, the contract was closed on the day the final agreement and payment were made. There was no agreed term that the respondents retained a duty to safe guard the cane or hand it over to the appellant when it matured. In my view, the respondents discharged their duty to hand over the sugar cane to the appellant and to allow him to harvest on 5/11/2006. Beyond that, they had no further burden to discharge.Therefore, although the fire destroyed the subject of the contract, that incident happened several months after the contract was closed. It could not be stated that the agreement was frustrated. Even then, and as pointed out by respondents’ counsel, the introduction of frustration into the judgment, did not lead to a rejection of the appellant’s evidence, or affect the final decision of the Court.
Grounds 2 and 3 accordingly fail as well.
In conclusion, I have found no merit in all three grounds raised in this appeal. It is accordingly, dismissed with costs to the respondents.
I so order.
EVA K. LUSWATA