Kisolo v Stanbic Bank (U) Ltd (Civil Appeal No. 99 of 2013) [2021] UGCA 224 (20 July 2021)

#### THE REPUBLIC OF UGANDA

#### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### CIVIL APPEAL NO.099 OF 2013

ROBERT KISOLO APPELLANT

#### VERSUS

STANBTC BANK (U) LTD RESPONDIN'I'

[Arising from the decision of Hon. Justice E. Mwongutsya in HCCA No. 11 of 2012 at Kampala delivered on 30th April, 2013 and Mengo Magistrates Court Civil Suit No 1592 of2009l

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# CORAM: HON. MR.f USTICE GEOFFREY KIRYABWIRE,IA HON. LADY JUSTICE MONICA MUGENYI,IA HON. MR. IUSTICE REMMYKASULE, Ag. fA

#### IUDGMENT OF THE HON. MR. IUSTICE GEOFFREY KIRYABWIRE. IA

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<sup>1</sup>| t' r ; ,

#### lntroduction.

This is a second Appeal from the decision of the High Court sitting in Kampala as a first Appellate Court in respect of a decision of the Mengo Chief Magistrates Court.

## s Brief Facts.

The facts as summarized by the first Appellate Court are as hereinafter restated. The Appellant maintained an account at the Respondent Bank's Branch at the IPS Building. On 27th February 2009 the Appellant wentto his bank to withdraw some money and asserts that he found the amount of Ug

- 10 Shs 2,300,000/= (two million three hundred thousand shillings only) had been wrongly debited from his account. The Appellant immediately notified managementwho then referred him to the Bank's Head Office foraction. The Head Office then conducted an investigation which revealed that a Bank employee was using the Appellant's bank account to conduct fraudulent - transfers to the account. It is the case of the Appellant that on the unearthing of this fraudulent activity by the investigation, the Bank promised the Appellant a gratuitous reward of Ug Shs 2,300,000 / = but declined to reimburse the Appellant the sum of Ug Shs 2,300,000/= wrongly debited from his account. 15 - <sup>20</sup> On the other hand, the Respondent Bank in their defence assert that the Appellant's account was fraudulently credited with the sum of Ug Shs 2,300,000/= which was reversed with a debit of the same amount.

Initially, the trial Magistrate's Courthad found forthe Appellantbutthe first Appellate Court reversed that decision in favour of the Respondent Bank and

hence this Appeal. 25

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#### Procedure Adopted and Grounds ofAppeal

This Appeal was heard during the COVID -19 pandemic restrictions and parties were required to file written submissions and only appear in Court to highlight them or other matters affecting the Appeal. During the brief hearing

5 Counsel forthe Respondent objected to the wording of the Memorandumof Appeal. With leave of this Court on the 25il, February 2021, the said Memorandum of Appeal was amended to read as follows: -

- 1.. The learned Appellate Judge erred in law when he failed to properly evaluate the evidence on record pertaining to a reward thereby - arriving at a wrong conclusion that what was deposited was a refund and thus causing a miscarriage of justice as well as injustice to the Appellant. - 2. The learned Appellate Judge erred in law in failing to re-evaluate the evidence on court record pertaining to a reward thereby coming to <sup>a</sup> wrong conclusion that what was deposited was a refund. - 3. The learned Appellate )udge erred in law in ignoring the Respondent's disobedience of court order and stating that the trial Magistrate should have first addressed the source of the funds that were credited to the Appellant's account and reversed. - 4. That the learned Appellate Judge erred in law stating that the money had been fraudulently credited to his (Appellant's) account without any evidence and particulars of fraud pleaded in the Respondent's pleadings.

5. The learned Appellate Trial Judge erred in law in totally disregarding the Appellant's counsel's (then Respondent's Counsel's) submissions in court thereby causing injustice to the Appellant herein.

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#### Representations.

Mr Godfrey Mafabi holding brief for Mr. Bogere appeared for the Appellanrs and Mr. Issac Bakayana appeared for the Respondents.

### Duty ofCourt in second appeals.

5 This is a second Appeal. The duty of a second appellate court was articulated in this Court in the matter of Kibalama Mugwanya V Butebi Investment Enterprises Ltd CA No. 190 of2012 as follows: -

"... As a second Appellate court, we are required to consider etors of law made by the lower court only. Rule 32(2) of the Judicature (Court ofAppeal Rules)

- 10 Directions Sl 73- 70 allows this court, in exercise of its jurisdiction as a second Appeal court, to approise the inferences offact drawn by the trial court. Rule 32 (2) of the Rules ofthis court provides that: "On any Second Appealfrom the decision ofthe High Court acting in the exercise ofits Appellote jurisdiction, the court sholl have the power to opproise the inferences offact drawnfrom the - 15 20 trial court, but shall not have discretion to heor additional evidence...." ln the case ofKifamunte Henry v Ugondo Criminal Appeal No. 10 of 1997 court held that a second Appellate Court, exceptinthe clearest ofcases is not required to re-evaluate the evidence like a first Appellate court. However, where the first Appellate court has failed to do so or has applied wrong principles the second Appellate court must correct any errors committed..."

Furthermore, in the matter of Baingana fohn Paul V Uganda CA No 0B of 20 10 this court further held: -

"...0n a second appeal, this court is required to determine whether or not the first appellote court corried out its duty of re-evalucrting the evidence. The duty of a court entertaining a second appeal wos set out in Kifumunte Henry Vs Uganda: Criminal Appeal No. 10 of 1997 when the Supreme Courtwhile discussing this very issue stated as follows:-

Once it has been established that there was some competent evidence to support

- 5 <sup>a</sup>finding offact, it is not open, on second appeal to go into the sufficiency ofthat evidence or the reasonobleness of the finding. Even if a Court offirst instance has wrongly directed itself on a point and the first appellate Court haswrongly held that the trial Court correctly directed itselfyet, ifthe Court offirst appeal has correctly directed itself on the point, the second oppellate Court connot take a - dffirentview; R Mohamed Ali Hashamvs. R (1941) B E. A. C.4.93. 10

On second appeal the Court ofAppeal is precludedfrom questioning the findings offact of the trial Court, provided that there was evidence to support those findings, though it may think it possible, or even probable, that it would not have itself come to the same conclusion; it can only inte rfere where it considers thot

there was no evidence to support the finding of fact, this being a question of law: R. vs. Hasson Bin Said (1942) 9 E. A. C. A.62." 15

I shall apply these principles in this matter.

### Grounds I and <sup>2</sup>

The learned Appellate ludge erred in law when he failed to nronerlv evaluate the evidence on record oertainins to a reward thereby arriving at a wrong conclusion that what was deposited was a refund and thus caused a miscarriage ofjustice as well as iniustice to the Appellant; And

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4,

The learned Appellate fudge erred in law in failingto re-evaluate the evidence on court recordpcIlalnlDgls Elcwaldthereby coming to a wrong conclusion that what was deposited was a refund.

#### 5 Submissions for the Appellant.

Counsel for the Appellants raised the issue of failure by the Appellate Court to properly evaluate the evidence on record.

Firs! Counsel disputes that there was no evidence that the Respondent Bank offered a reward to the AppellantofUg Shs 2,300,000/= for flaggingthe fraud

on his account. Counsel submitted that John Kiwanuka (DW1) the Bank's Operations Integrity Managertestified (at pages 159 to 161 ofthe Record of Appeat) that the Bank had agreed in a meeting to give a reward of Ug Shs 2,300,000/= though he could not remember the date. 10

Counsel further submitted that at the trial, Counsel for the Respondent Bank

Mr. Kihika (at pages 138 to 139 of the Record of Appeal) informed courtthat the Ug Shs 2,300,0O0/= credited on the Appellant's account was the contested award. 15

Counsel forthe Appellantsubmitted that Exhibit (P 5) (at page 115 of the Record ofAppeal)is a letter from Dorothy Ochola (Officer Legal) ofthe Respondent Bank which states: -

"...if a gratuitous payment was promised to your clientfor assisting in exposing the fraud, he needs to follow it up as such and not an entitlement. Kindly ask your client to get in touch with our operations deportment on the 7Lh Floor Crested Towersfor more information in that regard..."

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Counsel also refers to a letter in Exhibit P 7 from Elijah Omagor (Legal Advisor of the Bank) who wrote: -

"... it is therefore our finol position thatyour client was not entitled to the money and the Bank had no basis for making the refund unless of course he could

5 produce sufficient evidence to show that the money was regularly deposited into his account and he was not merely a beneficiary of a fraud against the bank That notwithstanding a payment of UGX 2.3M/= was made to Kisoro Robert..."

He argued that these letters were corroborative evidence that there was a decision to give the Appellanta reward of Ug Shs 2,300,000/= and thatthe

Respondent had no intention ofrefunding. 10

Furthermore, the Appeltant himself testified (at page 149 of the Record of AppealJ that he had been promised this reward by the bank and that this evidence was not controverted.

Counsel submitted that the Appellate Judge's findings (at page 22 of the Record of Appeal) was without any basis when he found that: -

"...from the tone of this letter thatthe appellont made o payment to the respondent notwithstanding that the money was froudulently credited to his accounL There is no suggestionfrom this letter that the money was a reward. I do not think it's by coincidence that the amount deposited on the respondent's occount was the exact amount that had been debited on the account..."

Counsel also contested the Appellate Judge's findingat Page L5 of the Record

ofAppeal that: -

"...1t should be observed thatfrom the judgment ofthe trial magistrate the source of the funds that were credited to the Respondent's (now the Appellant) account and then reversed was not addressed..."

Counsel submitted that the first Appellate Court (at pages 49 to 5 3 of the

Record of Appeal) made Orders that the Respondent Bank produces "...customer debit advise copiesfor the two debit transactions of 2.3M/= sn )/tn February 2009, customer credit advise copies for the transactions on the 27Lh May 2009 by others..."by the L 4th June, 2010 which was not complied with.

Counsel submitted that had the first Appellate Court putthis evidence under

scrutiny, it would have found that it was not a coincidence that the amount deposited on account of the Appeltant by the Respondent Bank was the right amount. The first Appellate Judge therefore reached this findingwithout evidence or fact to support it. 10

#### Submissions of the Respondent Bank.

- Counsel for the Respondent objected to the tlvo grounds ofAppeals. He argued that the grounds offend Rules 76 (3) and 86 ofthe Rules ofthis Court as the grounds do not "...specify the points which are alleged to hove been wrongfully decided..." (See Attorney General V Florence Baliraine CA No. 79 of 2 0 0 3); and therefore should be dismissed. 15 - Counsel also submitted that the first Appellate Judge addressed himself to all the evidence before him in the first Appeal. He referred to the Judgment (at page 1 5 of the Record of Appeal) where the Appellant wrote a letter of complaint to the Bank about the Ug Shs 2,3 00,000/= removed from his accoun! the forensic report from the bank about the money movements (at 20

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page 16 ofthe Record ofAppeal) and the letter from the legal departmentof the bank referred to by the Appellant (at page 37 of the Record ofAppeal).

Counsel submitted that the Appellant failed to sustain the allegations that the Respondent Bank was under an obligation to give him a reward of Ug Shs

5 2,300,000/=.ln particular, there was no particular official correspondence confirmingthe said reward of UgShs 2,300,000 /=.

#### Findings and decision ofthe court.

I have addressed myself to the submissions ofboth counsel and the authorities for which I am grateful.

- 10 The main substance of these grounds is that there was no basis for the first Appellate Court's finding that there was no evidence to supportthe decision to give the Appellant an award. I have reviewed the facs of this Appealandthe judgment of the first Appellate Court on this matter. Indeed, the first Appellate Judgedoes refer to Exhibit P 7 (supraat pages 2l ofthe Record ofAppeal) - 15 written by Mr. Omagor the Legal Advisor and finds: -

"...from the tone of this letter the Appellantmade a payment to the Respondent's account notwithstanding that the money had been fraudulently credited to his account. There is no suggestionfrom this letter thot the money was a reword. I do not think thot it is by coincidence that the amount of money deposited on the

20 Respondent's account was the exact amount thot had been debited on the occount..."

This to my mind is a clear evaluation of the evidence before the Appellate Trial Judge which was based on the contents of a particular letter. Having been part of the first Appeal, the first Appellate Judge was able to better

{-

 appreciate the testimonies of the witnesses. In any even! Counsel for the Appellants even wrote to the Respondent Bank (page 116 ofthe Record of Appeal) to commit in writing that the moneydeposited on 15th May 2009was an appreciation but no such confirmation in writingwas ever made. As <sup>a</sup>

- 5 second Appellate Court, the Cou rt of Appeal, based on the authorities discussed above, is precluded from questioningthe findings offact ofthe first appellate Court, provided that there was evidence to support those findings, though it may think it possible, or even probable, that it would not have itself come to the same conclusion. - I therefore find no error oflaw in this evaluation by the firstAppellate court since there is some evidence to support it. Grounds one and two are accordingly found to have no merit. They are disallowed. 10

Ground No 3: The learned Appellate tudge erredin law in ignoring the Resoondent's disobedience of court order and stating that the trial

Magistrate should have first addressed the source of funds that were credited to the Appellant's account and reversed. 15

#### Submissions for the Appellant.

Counsel for the Appellant noted that the Appellate Judge faulted the trial Court for not finding the source of funds that were addressed. He argued that the

source of funds was not an issue for trial. He submitted that nonetheles s the Appellant prayed for the customer debit advise copies for the two debit transactions of Ug Shs 2,300,000 / = on the 2 7th of February 2 0 09 and 2 Bth May 2009 which were to be produced by the lzltrr of f une 2010. However, these documents were not produced. He argued that the Appellate Court should 20

have found the Respondent Bank to be in contempt rather than faultthe trial 25

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<sup>10</sup>| ',., ' .'

Court. He submitted that without that extra evidence to support Exhibit PEX 1, it was not possible to know whether the funds in question belong to the Appellant or Respondent.

#### Submissions of the Respondent Bank.

5 Counsel for the Respondent opposed this ground. He argued that the Appellate Judge was right in coming to his conclusion considering the grounds of Appeal as set out in the Memorandum of Appeal.

He submitted that how the Appellate Judge dealt with the re-evaluation of the evidence was a question of style and it was important for him to be clear as to

the sources of funds. 10

### Findings and decisions ofthe court.

I have addressed myself to the submissions ofboth counsel and the authorities for which I am grateful.

It is difficult to see what the angle of complaint herein is, for a second Appellate Court to review under this ground. The Respondent was not satisfied with the bank statement in Exhibit PEX 1 and sought to obtain, on Appeal, customer debit advice copies to provide further clarity, However, the Respondent Bank, though ordered to provide the documents, did not do so. The Appellant as the applicant for these documents did not protest their non-15

production save in their closing submissions. lf the Appellant had done so and the Court rejected the said protest or application for contemp! then I believe they would have had a point. It should be remembered that even Exhibit PEX 1 was the Appellant's documentand even then as the Plaintiff at the trial Court the onus was on him to prove that the said funds were his and not the 20 <sup>11</sup><sup>I</sup> t

bank's. It would have been strange to push that burden ofproofon the Respondent Bank. The Bank provided a forensic Report to support their case for fraud but the Appellants provided nothing whether deposited cheque or anticipated transFer to their account of exactly the same amount of money of s the alleged fraud namely Ug Shs 2,300,000/=.

I otherwise see no point oflaw and accordingly disallow ground three ofthe Appeal.

Ground No 4: That the learned Appellate fudge erred in law stating that the money had been fraudulently credited to his (Appellant's) account

10 without any evidence and particulars offraud pleaded in the Respondent's pleadings,

#### Submissions for the Appellant.

Counsel for the Appellant submitted that the Appellate f udge was wrong to find that the money was fraudulently credited to the Appellant's account

1s without pledging or particularizing fraud.

Furthermore, it was unperceivable that the Respondent Bank would have offered a reward to a fraudulent customer.

## Submissions of the Respondent Bank.

Counsel for the Respondent Bank submitted that this ground was based on 20 facts yet as a second Appeal a point of law would have to have followed.

## Findings and decisions ofthe court.

I have addressed myself to the submissions ofboth counsel and the authorities for which I am grateful.

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I am again hard pressed to understand whata second Appellate Court such as this would do with such a ground. The reliance of fraudulent activity on the Appellant's account by the Respondent Bank was a reply as a defence and or answer to the claim by the Appellant that the money on his account was

5 wrongly debited.

I find therefore that this ground is misplaced and I hereby dismiss it.

# Ground No 5: The learned Appellate Trial ludge erred in law in totally disregardingthe Appellant's counsel's (then Respondent's Counsel's) submissions in court thereby causing iniustice to the Appellant herein.

I find that this ground is in substance tied to ground number one on evaluation and since I have already rejected ground number one, I find it proper that this ground number five should also fail. 10

I so find.

## Final Result.

This Appeal has failed on all grounds and so is accordingly dismissed. The decision and Orders of the first Appellate Court are upheld. 15

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## Costs

Costs of this Appeal are awarded to the Respondent.

# It is so Ordered.

t, <sup>13</sup>1i,,, ,,

Dated at Kampala this $14^{\prime}$ day of $0^{\prime}$ 2021

Andrej Starj

HON. MR. JUSTICE GEOFFREY KIRYABWIRE, JA

$\mathsf{S}$


THE REPUBLIC OF UGANDA

# THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### **CORAM: KIRYABWIRE AND MUGENYI, JJA & KASULE, AG. JA**

#### CIVIL APPEAL NO. 99 OF 2013

#### **BETWEEN**

ROBERT KISOLO ...................................

#### **AND**

STANBIC BANK UGANDA LIMITED ....................................

(Appeal from the Judgment of the High Court of Uganda (Mwangusya, J) in High Court Civil Appeal No. 11 of 2012, arising from Mengo Magistrates Court Civil Suit No. 1592 of 2009)

Civil Appeal No. 99 of 2013

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$\mathbf{1}$

#### **JUDGMENT OF MONICA K. MUGENYI, JA**

I have had the benefit of reading in draft the lead Judgment of my brother, Hon. Justice Geoffrey Kiryabwire, JA in this Appeal. I agree with the decision arrived at and the orders therein, and have nothing useful to add.

Dated and delivered at Kampala this $\frac{1}{2}$ day of ...................................

suchregeny!

Hon. Lady Justice Monica K. Mugenyi **Justice of Appeal**


THE REPUBLIC OF UGANDA

#### IN THE COURT OF APPEAL OF UGANDA

#### AT KAMPALA

# Civil Appeal No. 99 of 2013

(Arising from the decision of Hon. Justice E. Mwangutsya in High Court Civil Appeal No. 11 of 2012 at Kampala delivered on 30th April, 2013, and Chief Magistrate's Court, Mengo Grade 1 Court Civil Suit No. 1592 of 2009)

**Robert Kisolo :::::::::::::::::::::::::::::::::::**

#### Versus

Stanbic Bank (Uganda) Ltd :::::::::::::::::::::::::::::::::::

20 Coram: Hon. Mr Justice Geoffrey Kiryabwire, JA Hon. Lady Justice Monica Mugenyi, JA Hon. Mr. Remmy Kasule, Ag. JA

# Judgment of Remmy Kasule, Ag. JA

Having perused the lead Judgment prepared by my brother Hon. Mr. Justice 25 Geoffrey Kiryabwire, JA, I agree with his analysis of the issues of law raised in the Appeal and the conclusions he draws.

I support the final decision he arrives at that the Appeal be dismissed and the decision and orders of the first appellate High Court be upheld. I too agree

that the costs of this Appeal be awarded to the Respondent. 30

Dated at Kampala this ....... ............... day of **July**, **2021**.

ille unumo

**Remmy Kasule Ag. Justice of Appeal** $20/07/202$

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