Ainebyona Tindikahwa v Tulinawe (CIVIL APPEAL NO.34 OF 2021) [2025] UGHC 235 (3 February 2025)

### **THE REPUBLIC OF UGANDA**

### **IN THE HIGH COURT OF UGANDA AT HOIMA**

## **CIVIL APPEAL NO.34 OF 2021 (Arising from C. S No.007 of 2021)**

### **SUNDAY AINEBYONA TINDIKAHWA :::::::::::::::::::::::::::::::::::::: APPELLANT**

#### **VERSUS**

**TULINAWE ERIAS :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT** *[Appeal from the Judgment and orders H/W Nsibambi Lwanga, Grade 1 Kagadi Court in C. S No.07 of 2020 delivered on 28/5/2021]*

### *Before: Hon. Justice Byaruhanga Jesse Rugyema*

## **JUDGMENT**

## **Background**

- [1] The Appellant/plaintiff sued the Respondent/Defendant in the lower court for conversion of his power saw, mesne profits, special and general damages and costs of the suit. - [2] It was the Appellant's case that on the 29/11/2018, he bought a Power saw **Product No.272 X P 965681644** from the power saw centre, Kampala at **Ugx 2,500,000/=.** That on 2/12/2018, he entered into an oral arrangement with the Respondent for lumbering of his timber whereupon the Respondent made a commitment letter regarding how he was going to execute the activity with the power saw in question. - [3] During the course of the lumbering of the Appellant's timber, the Respondent disappeared but later to re-appear on 20/3/2019 with a different Power saw P**roduct No.272 X P 9656816-00** with a different serial

number from that one the Appellant had given him to use in the lumbering of his timber.

- [4] The re-appearance of the Respondent with a different power saw prompted the Appellant to report conversion of his power saw by the Respondent to Rutete police post on 21/3/2019 and subsequently, the Respondent was arrested but later, the Appellant was told that there was no case against the Respondent and police returned the power saw the Respondent had brought to him for custody. It is from the above developments that the Appellant filed the present suit for conversion of his power saw. - [5] The Respondent was served with the summons to file a defence but did not file one. The trial Magistrate nevertheless, on the appearance of the Respondent in court, he allowed the Respondent to cross examine the Appellant and his witnesses and upon closure of the Appellant's case, allowed the Respondent to testify in his defence where he denied the Appellant's allegations contending that the power saw he handed over to the Appellant was the same power saw he had received from him to do his work of lumbering trees. - [6] The trial Magistrate on his part found that there was no evidence to prove that the Respondent converted any power saw but that this was a tramped up case by the Appellant to get the Respondent pay for the timber he had accounted for. The Appellant's suit was in the premises dismissed with costs to the Respondent. - [7] The Appellant was dissatisfied with the Judgment and decree of the learned Magistrate Grade 1 and lodged the present appeal on the following grounds: - *1. The learned trial Magistrate erred in law when he allowed the defendant who was not legally in court to cross examine the plaintiff when the matter was proceeding ex-parte in default of filing defence thus leading to a miscarriage of justice.* - *2. The learned trial Magistrate erred in law and fact when he failed to evaluate the evidence on record, disregarded and or overlooked the*

*entire plaintiff's evidence on conversion of the power saw thereby reaching an unjust decision thus:*

- *a) That the defendant has never taken any power saw from the plaintiff.* - *b) That the defendant has never converted any power saw.* - *c) That the plaintiff came to court to cause the defendant to pay for the unaccounted monies for timber.* - *d) That the commitment letter marked P. Exh.1 was not translated in the language of court*

## **Representation**

[8] At the hearing, whereas the Appellant was self-represented but nevertheless filed submissions, the Respondent was represented by Mr. **Sibuta Joseph,** but the submissions were also drawn and filed by the Respondent in person. I have taken consideration of the submissions for both the parties in the determination of this appeal.

## **Duty of the 1st Appellate court**

- [9] It is settled that the duty of the 1st Appellate court as the instant one is to review the record of evidence for itself in order to determine whether the decision of the trial court stands without necessarily interfering with the discretion of the trial court unless satisfied that the trial court has misdirected itself and thus arrived at a wrong decision, **Fredrick Zaabwe Vs Orient Bank, SCCA No.04 of 2006**. - [10] This court is in the premises required to re-appraise all evidence as was adduced at the trial and give it an exhaustive scrutiny before arriving at its own decision.

# **Preliminary objections**

[11] The Respondent raised a preliminary objection to the effect that the appeal was filed out of time and without a decree appealed against. He relied on provisions of **S.220 (1) (a) MCA** and the case of **Migadde Richard Lubinga** **& 2 Ors Vs Nakibuule Sandra & 2 Ors, HCCA No.53 of 2019** where it was held that an appeal that is filed out of time and without a decree appealed against is defective liable for dismissal for being filed out of time and without a decree.

- [12] The Respondent argued that in the instant case, the judgment was entered in the Respondent's favour against the Appellant on **28/5/2021** and the Appellant filed a memorandum of Appeal on the on **24/6/2022,** more than a year later without seeking leave of court and without showing any justifiable cause why the appeal was filed out of time.2ndly, that on perusal of the record of proceedings, no decree appealed against is on record. In the premises, the Respondent contended that the appeal is incompetent for being filed out of time and without a decree appealed from and prayed for the dismissal of the appeal with costs. - [13] Upon perusal of the record, I find that indeed, the judgment in the Respondent's favour against the Appeal was entered on 28/5/2021. **S.79(1) & (2) CPA** provides that every appeal to the High court must be entered within 30 days from the date of the decree or order of the court but in computing the period, the time taken by the court or the registrar in making a copy of the decree or order appealed against and of the proceedings upon which it is founded shall be excluded. - [14] In the instant case, I, in the first instance, find that a decree of the judgment was extracted on **10/6/2021** and it is on record. It is therefore not true that the appeal was filed without a decree contrary to **S.220 (1) (a) MCA.** 2ndly, the Appellant filed a memorandum of Appeal dated **8 th June 2021** in this court on **11/6/2021** and it was endorsed by the Registrar of this court on **18/6/2021**. In view of the fact that the decree was extracted on **10/6/2021,** it is apparent that the memorandum of Appeal filed in court on **11/6/2021** was filed in time. - [15] The above memorandum of Appeal nevertheless had 2 grounds of appeal with a clause thus:

*"3 other grounds of appeal shall be added with leave upon receipt of the typed record of proceedings from the trial court."* As per the record of the court below, both the proceedings and judgment were certified on **19/10/2021**. There is however no evidence on record as to when this certified record was availed to the Appellant. Nevertheless, the Appellant on **23/6/2022** filed an amended memorandum of Appeal similar to the first one but adding thereon as 3 rd ground of appeal as he had intimated thus:

*"That the commitment letter marked P. Exh.1 was not translated in the language of court."*

- [16] In the premises that on record there is no evidence as to when the certified record was availed to the Appellant, I am inclined to find that the amended memorandum of Appeal was not filed out of time. In any case, the Appellant's mere adding of the 3rd ground of appeal as he had intimated in the first memorandum of appeal cannot be taken to had prejudiced or caused a miscarriage of justice to the Appellant. - [17] As a result of the above, I find the Respondent's preliminary objections without merit and they are accordingly overruled. I proceed to handle the merits of the appeal. - **Ground 1: The learned trial Magistrate erred in law when he allowed the defendant who was not legally in court to cross examine the plaintiff's witnesses when the matter was proceeding exparte in default of filing defence thus leading to a miscarriage of justice.** - [18] The Appellant submitted that the summons to file a defence was served on the Respondent/Defendant on 6/2/2020 but the defendant did not file the defence and the matter was set down for hearing exparte in default of the defendant filing the requisite defence. - [19] The Respondent while appearing to concede to the Appellant's claims that the Respondent failed to file a defence in time, argued that under **S.98 CPA**, Court has inherent powers to make orders necessary for ends of justice and since the Appellant did not make this issue a subject of discussion during the trial, the Respondent's Written statement of defence (WSD) filed

on 4/3/2020 justified the trial Magistrate to proceed with the matter inter parties.

- [20] Upon perusal of the court record, I note that the trial Magistrate neither recorded any order for the matter to proceed exparte nor setting aside of any exparte hearing. It is however apparent as the Appellant appeared conceding, that the Respondent despite having been served with the summons to file a defence, did not file one and the trial Magistrate ordered the matter to proceed exparte. This is supported by the exparte hearing notice on record dated 9/11/2020 that was duly endorsed by the trial Magistrate and sealed by court. - [21] It is apparent therefore that even if one was to admit the WSD filed by the Respondent on **4/3/2020** when he was duly served on **6/2/2020,** a fact that he does not deny, the WSD would be found to have been filed out of time since the WSD ought to have been filed within 15 days as per the summons to file a defence following **O.9 rr.1,2 & 3 CPR.** - [22] In the premises, I find that the Respondent/Defendant was duly served with a plaint but did not file a defence in time. It is the position of the law that where a party fails to file a defence in time as prescribed by law when served with the plaint, he/she excludes himself or herself from the proceedings in court, **Twiga Chemical Industries Ltd Vs Viola Bamusedde, Civil Appeal No.9 of 2002 (C. A. U).** - [23] In conclusion therefore, I find that the learned trial Magistrate erred in law in allowing the defendant to participate in the proceedings where he never filed a defence to give a defence. The 1st ground of appeal accordingly succeeds. - **Ground 2: The learned trial Magistrate erred in law and fact when he failed to evaluate the evidence on record, disregarded and or overlooked the entire plaintiff's evidence on conversion of the Power saw thereby reaching an unjust decision thus:**

**a) That the defendant has never taken any Power saw from the plaintiff.**

**b) That the defendant has never converted any Power saw.**

- **c) That the plaintiff came to court to cause the defendant to pay for the unaccounted monies for timber.** - **d) That the Commitment letter marked P. Exh.1 was not translated in the language of court.** - [24] To begin with, on record there is an English translation of the Respondent's commitment letter **(P. Exh.1)** in compliance with **S.88 CPA** which provides for use of the English language in court proceedings as the language of court. As was held in **Kaheru Yasin & Anor Vs Zinorumuri, HCMA No.82 of 2017,**

*"S.88 of the Civil procedure Act provides for the use of English in drafting pleadings and recording of evidence since it is the language of court. It therefore follows that all attachments to pleadings must be translated to the language of court."*

- [25] In the instant case, there being a translated copy or version of **P. Exh.1** on record duly received by court on 29/1/2020, it follows that the learned trial Magistrate erred when he overlooked the Appellant's translated version of **P. Exh.1** that was on record and ruled against the Appellant that there was no evidence that the defendant had never taken any Power saw from the plaintiff. - [26] As per **P. Exh.1,** a Commitment letter made and signed by the Respondent/defendant, was to the effect that the Respondent/defendant was to work for the Appellant/plaintiff using his machine (power saw) **Serial No.21020183516998, Product No.965681644.** It is true the document (P. Exh.1) was not endorsed by the Appellant but this was not fatal to either the document or the Appellant's case since the document was a commitment by the Respondent and therefore needed not be signed by the Appellant. Otherwise, the evidence **PW1, PW2** as corroborated by **P. Exh.1** and the Respondent himself who did not deny taking the Power saw is evidence on the balance of probabilities that the Respondent took the Appellant's Power saw. The trial Magistrate is found to had failed to properly evaluate the evidence touching the taking of the Power saw by the defendant/Respondent from the plaintiff when he found that the Respondent had taken any Power saw from the Plaintiff.

[27] As regards whether the Respondent converted the Appellant's power saw, the **Black's Law Dictionary 6th Edition** defines conversion as:

> *"Un authorised assumption and exercise of the right of ownership over goods or personal chattels belonging to another, to the alteration of their condition or the exclusion of the owner's rights."*

Conversion has an element of any unauthorised act which deprives an owner of his property permanently or for an indefinite time.

- [28] In the instant case, it is apparently clear as the Appellant testified that he gave the Respondent a Power saw for use in the lumbering of his trees at a fee but the Respondent returned with a different power saw. Though there is overwhelming evidence that the Power saw the Appellant gave to the Respondent was different from the power saw he returned to the Appellant, they were similar save for the serial number and product number. As per the evidence of **Ashemeza Eva** (PW2), wife to the Appellant, her husband rejected the returned Power saw because it had no documentation/receipts and therefore it was unsafe to retain it. There is therefore no evidence that the Appellant rejected the Power saw because the Respondent failed to account for the timber cut. - [29] The Appellant did not adduce any evidence that the returned Power saw was inferior to the one he had given the Respondent because he did not bring proof as regards to either its cost or efficiency. By the Respondent's act of returning a different power saw is evidence that the one he had been given may have got a problem and it could not be returned in the form it had been given to him or it was damaged, lost or stolen from him and he decided to make good of it by securing its replacement by looking for another power saw which he provided. There is therefore no evidence that the Respondent permanently or intended to permanently deprive the Appellant of ownership of the Power saw. He merely made a replacement of the power saw he had been given to do the lumbering. - [30] In the absence of any evidence that the Respondent disappeared with the Appellant's Power saw for good but returned with another, a similar one, I

find that there is no evidence of the Respondent's conversion of the Appellant's power saw. The 2nd ground of the appeal accordingly succeeds.

- [31] The Appellant's Power saw having been in the circumstances of this case replaced by the Respondent, it follows that the dismissal of the Appellant's suit by the trial Magistrate though on other grounds other than as found by this court, was justified and he was therefore entitled to all the other reliefs sought. - [33] In the premises, I dismiss the appeal but with no order as to costs since the Respondent partly contributed to the litigation over the power saw.

Dated at Hoima this **3 rd day of February, 2025.**

> **………………………………………… Byaruhanga Jesse Rugyema JUDGE**