Kadukulu and Another v Gwaya (Civil Suit 38 of 1999) [2004] UGHC 95 (27 May 2004)

### THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA **HOLDEN AT MBALE**

#### CIVIL SUIT NO. 38 OF 1999

| 1. KADUKULU ANTHONY | | |---------------------|--| | 2. KAMBA MOSES | | | VERSUS | | | GWAYA ROBERT WILLY | |

#### **BEFORE THE HON. MR. JUSTICE D. N. MANIRAGUHA**

#### **JUDGMENT**

The two Plaintiffs jointly brought this suit against the defendant seeking for an order of this court that the Defendant refunds them shs. $6,845,000=$ he had received from them but he failing to obtain them travel documents to Japan where they wanted to go for casual labour.

The background to this suit is that the plaintiffs wanted to go to Japan to do casual labour popularly known as "Kyeyo". They contacted the defendant who seemed to know his way about the process and they gave him various sums of money to help them in the process. Subsequently the deal failed, the money was not fully refunded, hence this suit.

At the commencement of hearing of the suit the following issues were framed:-

1. Whether the defendant received shs.6,825,000= from the plaintiffs namely shs.4,350,000= and shs.2,495,000= respectively.

- 2. Whether the defendant agreed to refund shs.6,845,000= as per refund claim in the plaint, and - 3. Whether the plaintiffs are entitled to the remedies sought.

On the first issue, as contested by Mr. Natsomi, Learned Counsel for the defendant there were discrepancies in the testimony ofthe plaintiffs as to the amount given to the defendant by each plaintiff and on which day, and what the outstanding amount is.

The same learned Counsel brought out the law on inconsistencies as dealt with in *Sarapio Tinkamarirwa -vs- Uganda Sc. C. A. No.27/1989* that grave inconsistencies unless satisfactorily explained will result in evidence of a witness being rejected, minor inconsistencies will not have that effect unless Court thinks they point to deliberate untruthfulness.

It is his contention that these inconsistencies point to deliberate untruthfulness.

Considering the Plaintiffs' Counsel's submission, there is evidence that these plaintiffs seemed confused in their testimonies on these facts as pointed out by the Defendant's Counsel and explained by the Plaintiffs. It is difficult to tell whether they were taking the Court for a ride by giving it deliberate untruths or were forgetful due to passage of time. Also as to the intention of the money the <sup>1</sup>st plaintiff wanted to cover up the Kyeyo business by saying it was a friendly loan. However, these inconsistencies do not change the admitted facts that some money did change hands a fact

**2**

admitted by the defendant. In the end the breakdown comes to the following effect:-

- (a) The first plaintiff is claiming shs.4,350,000= while the 2nd is claiming shs.2,495,000= totaling to shs.6,845,000=. - (b) The defendant admits receiving various sums from the two for listed purposes totaling to shs.6,605,000=.

So the discrepancy does not go to the root of the matter when looking at both sides and narrowing the difference in the two totals to shs. 24,000= as between what is claimed and what is admitted as received by the defendant.

The next question is whether or not the defendant voluntarily agreed and undertook to pay the sum of shs.6,845,000= or he was forced to make that undertaking when the plaintiffs opted not to travel to Japan.

The defendant's contention is that he was coerced into writing the undertaking dated 15/8/98 agreeing to refund the money in installments.

Mr. Natsomi, learned Counsel for the defendant submitted that where there is duress then a contract so concluded is voidable at the option of the victim of duress.

*Kaufman -vs- Gerson (1904) I KB. <sup>591</sup> and Cumming -vs- Iriche (1941) 11 QB 112*

Alternatively that the undertaking was a mere promise which is not binding on the defendant.

**I**

On the other hand it was Mr. Dagira's contention that to exercise one's right however harsh it may appear would not amount to duress. He relied on *R. IV. Hodgin Law ofContract in East Africa at P.130,* thus seeking to distinguish the case of *Nnandozie -vs- Dizengoff Ltd (1967) 1 ALR 225* on what amounts to duress at common law.

I have carefully addressed my mind to the two arguments by both learned Counsel and whichever way one looks at it the fact remains that the defendant received the money from the plaintiffs for the purpose of arranging their travel to Japan a venture that eventually failed leaving the plaintiffs at the losing end hence this suit.

Whether the agreement was by duress, which it does not amount to since the plaintiffs were only asking the defendant to commit himself in writing and there is evidence of his voluntary part payment of shs. 1,200,000= all goes to show that he knew of the money and how it was to be used but eventually the mission failed. He was not being forced at all, so the second issue is answered in favour ofthe plaintiffs.

Lastly the Crux of the matter is whether or not the plaintiffs are entitled to a refund oftheir money.

It is defendant's Counsel's submission that the purpose for the money was agreed to by the plaintiffs, and money was duly spent for that purpose but the venture failed, so there should be no refund.

On the other hand the plaintiffs claim that they should have their money refunded as the venture failed.

Looking at the evidence and admission by the defendant various sums were given to him to arrange for the plaintiffs to travel. He failed to pull the venture through. But he attributes this failure to the plaintiffs who could not get visas to Japan in time till they asked him to refund their money on 15/8/98.

There is the defendant's testimony that he promised to refund the money. Secondly he was given ample time to show that he actually had spent the money for the purpose intended but he totally failed to do so leaving the balance in favour ofthe plaintiffs who had adduced sufficient evidence to tilt the balance in their favour. The defendant having affirmed that he performed his part of the bargain failed to discharge his burden of adducing evidence to substantiate it and having admitted receipt of the money left the case ofthe plaintiff proven on a lance of probabilities. *Col. (Rtd) Dr. Besigye Kizza -vs- Museveni Yoweri Kaguta & Anor.*

*Vol. II atpages 380 to 384* is relied upon.

In conclusion I do find and hold that the plaintiffs have proved their case to the satisfaction of the Court and are entitled to a refund of the money unpaid and due to them being shs.6,845,000= less shs. 1,200,000= already refunded leaving a balance ofshs.5,645,000=.

I thus pass judgment against the defendant in favour of the plaintiffs to the tune ofshs.5,645,000= with interest at commercial rate from the date offiling this suit till payment in full.

The plaintiffs are also awarded costs of the suit with interest at Court rate from the time ofjudgment till payment in full.

## **D. N. MANIRAGUHA JUDGE**

27/5/2004 Dagira for Plaintiffs absent Defendant absent Natsomi for Defendant.

Court: Judgment read and explained.

# **JOHN O. E ARUTU AG. DEPUTY REGISTRAR 27/5/2004**