Kumar & Another v Kumar (Civil Suit 1098 of 2022) [2024] UGCommC 139 (13 May 2024)

#### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

#### (COMMERCIAL DIVISION)

#### CIVIL SUIT NO. 1098 OF 2022

#### 1. RAJESH KUMAR T. K

2. DIJINA RAJESH :::::::::::::::::::::::::::::::::::: **VERSUS**

VINEESH KUMAR NEROTH::::::::::::::::::::::::::::::::::::

## Before: Hon. Lady Justice Patricia Kahigi Asiimwe

## Judgment

#### Introduction:

The Plaintiffs sued the Defendants for recovery of AED. $\mathbf{1} =$ 110,000 (United Arab Emirates Dirham One Hundred Ten Thousand), general damages, interest at a commercial rate, and costs of the suit.

#### The Plaintiffs' case:

2. The Plaintiffs allege that the Defendant approached them and informed them of a business opportunity in Uganda and requested them to lend him money for investing in the business in Uganda with a promise that he would pay them back. The Plaintiffs out of trust lent the Defendant AED. 110,000 between 2018 to December 2021. The Defendant did not repay the money.

#### Representation:

3. At the hearing the Plaintiffs were represented by Muyigo Allan James of $M/S$ Wagabaza & Co. Advocates. The matter proceeded ex parts the Defendant having been served and failed to make an appearance.

## Issues

- 4. The issues for resolution are as follows: - a) Whether the Defendant is indebted to the Plaintiffs - b) Whether the Plaintiffs are entitled to the remedies sought

## Evidence

- 5. At the hearing, the Plaintiffs called one witness, Soodo Brian an attorney of the Plaintiffs. He testified that out of trust, the Plaintiffs lent the Defendant AED. 465,000 between 2018 to December 2021. - 6. PW stated that the money was given to the Defendant through various payment modes i.e cheques, direct cash, cash deposits on his account, and direct account transfers to his personal account. The Defendant promised to pay back the money in the first months of 2022 and even issued postdated cheques to that effect and gave them copies of his passport and resident ID. He adduced copies of the postdated cheques marked PE 8 and a copy of the passport and Resident Identity Card marked PE 9. - That upon realizing the Defendant's unwillingness to pay, the $7.$ Plaintiffs conducted a search to establish if he indeed set up any business in Uganda as he had informed them at the time of borrowing and established that he is among the majority shareholders and a director in Azzurra Minerals Ltd a company duly incorporated in Uganda and carrying on business in Uganda. He adduced in evidence a printout of the WhatsApp chats marked PE10, a certificate of incorporation marked PE 11, and a copy of the Articles and Memorandum of Association marked PE 12. - 8. PW further stated that the cheques that the Defendant issued bounced and a criminal case was opened against the Defendant in United Arab Emirates for issuance of bounced

cheques, the court found in their favor. He adduced a copy of the return of dishonored cheques marked PE 13 and a copy of the criminal case judgment marked PE 14.

- 9. PW stated that the Defendant after service of the summons and Plaint, immediately started contacting them through WhatsApp messages and calls promising to pay some money and even suggesting ways to them of recovering the money. - 10. That as a result of the Defendant's failure to pay the above sums, the Plaintiffs suffered great loss and the 2<sup>nd</sup> Plaintiff went into depression for which they seek general damages. He adduced in evidence a copy of the medical Report marked PE 15.

## Resolution:

Issue I: Whether the Defendant is indebted to the Plaintiffs

- 11. The Plaintiffs allege that they lent the Defendant money and the Defendant refused to pay back the money. The Plaintiffs adduced in evidence 3 cheques issued in favour of the Defendant. The Plaintiffs also adduced in evidence bank statements that indicated that the cheques were drawn. (PE 6 and PE $7$ ). - 12. The Plaintiff also adduced in evidence direct transfers made to the Defendant's account in ICIC Bank (PE 5). In addition, the Plaintiffs adduced in evidence deposits slips as evidence of cash deposits made onto the Defendant's bank account (PE 4). Under PE 7 they also submitted evidence of direct bank transfers made to the Defendant's bank account. It should be noted that the account on which the bank deposits are made is the same account on the cheques issued by the Defendant. - 13. Additionally, the Plaintiffs submitted a WhatsApp conversation marked PE 10, wherein the Defendant acknowledged receipt of some of the money. The Plaintiffs also submitted in evidence

$\overline{a}$

postdated cheques whose total value is AED. 168,000 issued by the Defendant to the Plaintiffs (PE 13). The Plaintiffs submitted proof that the cheques were dishonoured (PE 13)

- 14. The Plaintiff also adduced in evidence WhatsApp messages where the Defendant makes business proposals to the Plaintiffs and also stated that after the Plaintiffs make the said investments he can start paying them. (PE 16 pg. 97) - 15. The Plaintiffs allege that the money given to the Defendant was for the purpose of starting a business in Uganda. To prove that the Defendant started the said business in Uganda, the Plaintiffs submitted in evidence a certificate of incorporation (PE11) of Azzurra Minerals Ltd which was incorporated in Uganda on 25<sup>th</sup> February 2020. This was the period within which the money in issue was sent to the Defendant. The Defendant is listed as one of the shareholders of the company. - 16. I also note that in the bank statement (PE $\overline{7}$ ) with respect to the money transfers made to the Defendant's bank, under the description of the transactions, it is indicated that the money transferred was a loan. - 17. Hon. Justice David K. Wangutusi in **Kyotera Victoria** Fishnets Ltd Versus The Commissioner General, URA& Uganda Revenue Authority Civil Suit No. 224 of 2014 stated "It is trite that the burden of proof lies on the person who asserts the truth of the issue in dispute. It is also in the same vein an accepted position that where a person adduces evidence sufficient to raise a presumption that what he asserts is true, the burden shifts and unless the other party, in this to rebut case, the Defendant adduces evidence the presumption, it will be presumed to be true." - 18. I find that the Plaintiffs have submitted sufficient evidence to prove that they lent money to the Defendant and the said evidence has not been rebutted.

- 19. In the case of Dr. James Kashugyera Tumwine & Anor. Versus Sr. Willie Magara & Anor. HCCS No. 576 of 2004. court held that in an action for money had and received liability is based on unjust benefit or enrichment and that the action is applicable whenever the Defendant has received money which, in justice and equity, belongs to the Plaintiff. - 20. Unjust enrichment is defined in the **Black's Law Dictionary** 9<sup>th</sup> Edition at Page 1678 to mean "A benefit obtained from another, not intended as a gift and not legally justifiable, for which the beneficiary may make restitution or recompense." - 21. The Defendant received money from the Plaintiffs as a loan which he did not pay back thus unjustly enriching himself. The Defendant is therefore indebted to the Plaintiffs. This issue is therefore answered in the affirmative.

Whether the Plaintiffs are entitled to the remedies Issue II: sought

- *a) Recovery of AED. 465,000* - 22. The Plaintiffs in their Plaint prayed for recovery of AED. 110,000. PW, however, prayed for the recovery of AED. 465,000. The Plaintiffs submitted in evidence as proof of payment the following: - Cheques (PE 2) totaling to AED $127,000$ $\mathbf{1})$ - Direct transfers from UAE Exchange Centre to the ii) Defendant's ICIC Bank (PE 5) totaling to AED. 21,988.466 - Bank Transfers from Plaintiff's account in Emirates iii) NBD to the Defendant's account (PE 7) totaling AED. 36,450 - Cash deposits (PE 4) worth AED. $110,000$ . $iv$

The total amount paid to the Defendant is AED. 295,438.466.

23. The Plaintiffs have proved in evidence adduced that they gave the Defendant a total amount of AED. 295,438.466. The Plaintiffs are therefore entitled to recover AED. 295,438.466 from the Defendant.

- b) Generaldamages - 24. The Plaintiff also prayed for general damages. The law on general damages was summarized in the case cited by Counsel for the Plaintiff of Adonia Tumusiime & 318 Ors v. Bushenyi District Local Government & Anor HCCS No.32 of 2OL2. The court held that:

The position of the law is that the award of general damages is at the discretion of the court, and alwags as the law will presume to be the natural consequence of the defendant's act or omission. See James Fredrick Nsubuga u. AttorneA General, H. C. C. S No. 13 of 1993. Secondlg, in the assessment of the quanfitm of damages, courts are mainlg guided, inter alia, bg the ualue of the subject matter, the economic inconuenience that a partA mag haue been put through, and the nature and extent of the breach. See Uganda Commercial Bank u. Kigozi [2OO2] 1 EA. 3O5. A plaintiff who suffers damage due to the urongful act of the defendant must be put in the position he or she would haue been in had she or he not sufferedthe wrong. See Charles Acire u. Mgaana Engola, H. C. C. S No. 143 of 1993; Kibimba Rice Ltd. u. Umar Salim, S. C. Ciu. Appeal No.17 of 1992."

25. In the case of Maruri Venkata Bhaskar Reddy Versus Bank of India (Uganda) Ltd [Civil Suit No. 8O4 of 20t4l Wamala J held that:

> In the assessment of general damages, the court should be guided bg the ualue of the subject matter, the economic inconuenience that the plaintiff mag haue been put through, and the nature and extent of the injury suffered.

- 26. In the present case, Counsel for the Plaintiffs in his submission stated that the Plaintiffs have been denied use of their money for a considerably long time which caused anguish to them. PW testified that the 2"d Defendant went into depression and adduced in evidence a medical report (PE 15) indicating that the 2nd Plaintiff got depressed because "she was a victim of fraudulent money lending." - 27. ln light of the inconvenience suffered I find that an award of general damages of AED 15,OOO is fair and reasonable compensation as general damages for the injury caused to the Plaintiffs. - 28. In conclusion, judgment is entered for the Plaintiffs and they are awarded: - a) The sum of ABD.295,438.466 being money owed to them; - b) General damages of AED 15,000 - c) Interest of 15% on a) above from the date of filing the suit until payment in full; - d) Interest of 2Ooh on b) above from the date of this judgment until payment in full; and - e) Costs of the suit.

# Dated this 13th day of l0tray 2ol24

QAa'

Patricia Kahigi Asiimwe

Judge

Delivered on ECCMIS

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