Lubuulwa Tonny v Standard Chartered Bank (Civil Appeal 108 of 2012) [2015] UGCA 2039 (20 February 2015)

Full Case Text

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# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA HOLDEN

# AT KAMPALA

# CIVIL APPEAL 1O8 OF 2012

### VERSUS

#### ANDARD CHARTERED BANK. RESPONDENT

u (Appeal From The Judgment And Decree Of His Lordship Hon. stice Geoffrey Kiryabwire in The High Court, Commercial Diuision Ciuil Suit No. 355 Of 2OO9)

# RAM: HON. MR. JUSTICE A. S. NSHIMYE, JA HON. MR. JUSTICE KENNETH KAKURU, JA HON. JUSTICE PROF. LILLIAN E. TIBATEMWA, JA

# JUDGMENT OF THE COURT

is is an appeal from the Judgment and decree of his Lordship n. Justice Geoffrey Kiryabwire J (as he then was) in High Court mmercial Division, Civil Suit No. 355 of 2OO9.

e brief facts giving raise to this appeal as far as we could certain from the record are as follows:-

e appellant was employed by the respondent between 2O06 and 09. Sometime in 2OO7 in a bid to boost its sales, the respondent mbers of staff who could get customers to procure loans from the k. The promotions included cash prizes and share offers among ers. a series of promotions for its staff including prizes for those

The respondent offered a grand prize to anyone of its employees who would 'book' loans of a certain minimum amount within a period of one year.

The appellant claimed to have won the grand prize which the responded denied him. The respondent contended that the appellant had in fact not won the prize. The appellant also claimed that under the terms of the promotion he was entitled to an award of shares for his good performance, which award he was also denied. The appellant then sued the respondent at the Commercial Division of the High Court claiming both the grand prize and shares. The High Court dismissed the suit hence this appeal.

The grounds of appeal set out by the appellant are as follows;-

- 1. The Learned Judge erred in law and in fact when he failed in his bounden duty to properly evaluate the evidence on the record in support of the Plaintiff's case thereby arriving at a wrong decision. - 2. The Learned Judge erred in law and in fact when he misdirected himself by imputing custom in the contract with respect to the term/lingua "booking" as purportedly used in the Respondent Bank which was never pleaded by the Respondent to wrongly decide the case. - 3. The Learned Judge erred in law and in fact when he found for Defendant basing on a document Annexed as "A" to the Written Statement of Defense which was neither exhibited nor agreed upon by the trial.

- 4. The Learned Judge erred in law and in fact when he misdirected himself on the law relating to burden of proof and admissibility of evidence. - 5. The Learned Judge erred in law and in fact when he found that the Plaintiff was not entitled to the GBP $£$ 2000 in restrictive share he had otherwise qualified for as awarded to him.

When this appeal came up for hearing on 24th February 2014 both counsel sought and were granted leave to file written submissions, and it is on that basis that this appeal is being determined.

The appellant was represented by **Mr. Eric Kiingi** while the respondent was represented by **Mr. Ebert Byenkya.**

Counsel for the appellant submitted on grounds 1, 3 and 4 of appeal together and grounds 2 and 5 separately.

It was submitted for the appellant that the learned trial Judge erred when he relied on the respondent's document marked *annexture* 'A' to the written statement of defence which document was never tendered in as an exhibit at the trial, to find that the appellant did not 'book' the sum of shs. $3,750,834,169$ which would have entitled him to the grand prize.

Counsel submitted that the trial Judge should have believed the evidence of the appellant and should have relied on *annexture* ' $E$ ' to the plaint, a computation, which showed that the appellant had 'booked' loans amounting to over 3.7 billion shillings.

He submitted that *annexture* $E'$ to the plaint referred to above was prepared in accordance with the guidelines provided by the respondent, in a power point presentation.

He submitted further that the learned trial Judge erred when he decided the case on assumptions and not on evidence adduced, and that the learned Judge had adopted a speculative explanation based on his own knowledge rather than the evidence that was before him.

He submitted that the document *annexture 'A'* to the written statement of defence should never have been relied upon by the trial Judge as it had not been tendered as an exhibit in court.

He cited as his authority the case of **Okwanga Anthony verses Uganda 2001-2005 HCB at P. 36.** He asked this court to uphold the appeal.

In reply to grounds 1, 3 and 4 learned counsel for the respondent submitted that the court record demonstrates that the disputed document *annexture '* $A$ *'* to the written statement of defence was an agreed document as it had been agreed upon by both parties at the scheduling conference.

That it was agreed by both parties that all annextures to the written statement of defence were "agreed documents," and that was evidenced by the joint scheduling memorandum filed by both parties at the High Court before the trial.

That the above facts were confirmed by Mr. Kiingi learned counsel for the appellant at the commencement of the trial at the High Court. Counsel submitted further that the appellant testified on that document and confirmed its accuracy.

Counsel submitted further that once annextures to pleading had been agreed upon by both parties and admitted by them they ecame exhibits. That there is no requirement that such documents e marked and numbered as exhibits.

e relied on Section 57 of the Evidence Act, that there was no need o prove facts which had been admitted by the parties.

e also relied on the authority of Kasifa .hlcmusisi and others rses Francis Ndtobaqzi Supreme Court Ciuil Appeal No. 4 of OO5. Counsel asked Court to dismiss the appeal.

rejoinder it was submitted for the appellant lhat annexhtre 'A'to tten statement of defence was not an exhibit and ought not to ve been relied upon by the learned trial Judge. He submitted rther that the Section 57 of the Evidence Act was not applicable this case because a document was not a 'fact' in the context of t Section.

respect of ground 2 counsel for the appellant submitted that the ed Judge misdirected himself when he relied on Section 15 of Evidence Act and when he imported custom into the contract ween the parties.

unsel contended that the defendant had not pleaded usage ofany tom and as such no evidence should have been adduced to ve a matter that had not been pleaded. In the alternative, that h evidence having been adduced the learned trial Judge ought to have relied upon it. Counsel also contended that the term king' as applied by the respondent was not a custom with the g of the law.

cited that Judgment of this Court in Kibalama vs Alfasan He **Cuba** [2004] **2EA 146** for the proposition that in order for a party to rely on trade, usage or custom, the party ought to show a consistent course of dealings agreed upon by it under a verbal agreement.

On ground 5 of appeal learned counsel for the appellant contended that the learned trial Judge having found that the respondent had failed to bring to the attention of the appellant the detailed terms and conditions regarding the award of shares amounting to (GBP) $£2000$ went ahead to fault him for lack of due diligence and accordingly held for the respondent on that issue.

Counsel contended that the learned trial judge erred when he relied on untruthful testimony of DW1 and when he held that the appellant had been informed that the shares were restrictive, which information was to be found on the respondent's website. Counsel contended that no such evidence had been adduced in court.

Counsel further contended that the learned judge had found for the respondent basing on his personal opinion rather than the evidence.

He asked this court to uphold the appeal.

In reply to grounds 2 and 5 learned counsel for the respondent argued that the agreement between the parties was not contained in the power point presentation as contended by the appellant's counsel but rather was an oral one.

That the appellant could not therefore have relied on a copy of a power point presentation. The printout of the power point presentation could not have been a valid contract as it was not signed by both parties or at all. That the power point presentation was never intended to constitute a written contractual document.

That the appellant failed to lead evidence in his favour as to what the exact terms of the contract were.

Counsel contended that on the other hand the respondent had adduced evidence by the author of the power point presentation as to the exact terms of the contract. He asked court to dismiss the appeal.

We have carefully perused the Court record and read the submissions of both counsel and we have also studied the authorities cited by both parties.

This being a first appellate court, it is required by Rule $30(1)$ of the Rules of this Court to re-evaluate the evidence and to make its own inferences of law and fact. See: **Fr. Narcensio Begumisa & others** vs Eric Tibebaga (Supreme Court Civil Appeal No. 17 of 2002. (Unreported) and a host of other authorities by this court and the Supreme Court. We shall proceed to do so.

On grounds 1, 3 and 4 it is contended that the learned trial Judge $\frac{1}{2}$ failed to evaluate the evidence and as result reached wrong conclusions on a number of issues both in law and in fact. It contended that the learned trial Judge had relied on respondent's document attached to the written statement of defence (WSD) which documents did not form part of the evidence as it had not been tendered in Court as an exhibit.

$\overline{7}$

It is not in issue that indeed the questioned document was annexed to the written statement of defence, which act gave the appellant opportunity to reply to it in his pleadings if he had so wished. There is no reply to the written statement of defence filed in court challenging the said document or putting forward the appellant's case in respect to it.

What is on record is that parties filed at the High Court a joint scheduling memorandum. In that memorandum the defendant stated that it would rely on all annextures to the written statement of defence. Annexture ' $A$ " to the written statement of defence was listed in that memorandum as one of the agreed documents. implying that it had been admitted in evidence by consent of both parties and it was no longer in issue. Indeed counsel for the respondent at the commencement of the trial at the High Court stated that "the defendant's documents shall be adopted as marked on the scheduling memorandum."

On 22nd June 2010 Mr. Kiingi stated as follows in court:-

"We filed a joint scheduling memorandum on 19th March 2010. The defence filed their comprehensive list on $7th$ May 2010. Those are the two documents we are going to lead court through. The facts of the plaintiff's claim are discerned as shown in paragraph 6 of the joint scheduling memorandum"

After the above statement the court record indicates that: "Court goes through the memorandum with both counsel"

The trial Judge then pronounces that:- "This file is ready for trial, *proceed with your first witness*"

The High Court record indicates that the respondent filed its comprehensive record of documents pursuant to the scheduling conference on 7th May 2010 and the first item on that list is:-

> "Detailed statement of loans booked by the plaintiff" marked annexture "A"

During cross examination of PW1 the appellant, the record indicates as follows:-

> "Buenkya: Okay. Let us move to something else now. Did you have a chance to look at the document compiled by Standard Chartered Bank as your full account? It was the first detailed statement. It is on the Defendant's *comprehensive list of documents pursuant to scheduling which we filed on 7th of May.*

It is annexture what? Court:

Byenkya: It is annexture "A". You had a good opportunity I am sure to look at that document since we filed it and forwarded.

$PW1:$ Yes

*Byenkya: Yeah. Is there any inaccuracy in that document?*

$PW1: No.$

The appellant's counsel did re-examine the appellant on this document as indicated on page 214 of the record of appeal.

We find the appellant's contention that annexture "A" to the written statement of defence should never have been relied upon by the learned trial Judge untenable. This document had been admitted in evidence by both parties at the scheduling conference. That admission was confirmed by both parties when they filed a joint scheduling memorandum. Its admission was further confirmed by Mr. Kiingi counsel for the appellant at the opening of the trial.

The appellant was cross examined and re-examined on that document by both counsel.

It is our finding that the learned trial judge correctly relied on that document to come to the conclusion that he did.

Although the contents of that document cannot be said to have been admitted within the ambit of Section 57 of the Evidence Act nonetheless the document itself had been properly admitted in evidence. What remained to be determined by court was its evidential value which was determined after the witnesses had testified on it.

Counsel for the appellant relied on the case of *Uganda Breweries* Ltd vs Uganda Railways Corporation SCCA No. 6 of 2009 for the proposition that the term "Exhibits" should be confined to only $th\phi$ se articles which have been formally proved and admitted in evidence. Justice Oder JSC who wrote the lead Judgment in the case stated as follows ;-

"The case of Situma -vs- Regina (supra) states the general principle of law that there is a distinction between exhibits and articles marked for identification. The term "exhibit" should be confined to articles which have been formally proved and admitted in evidence. That general principle, in my view, does not apply to the police accident report and sketch plan in the instant case because the manner in which the parties here relied on

the two documents in their pleadings; referred to them in their respective evidence and in the closing address of the appellant's learned Counsel at the trial were all on the apparent assumption that the documents in question were admitted in evidence. In my view, the parties 'are deemed to have accepted the police accident report and the sketch plan as evidence. The provisions of section 56 of the Evidence Act apply to the instant case. In the circumstances my view is that the learned trial judge rightly relied on the two documents in arriving at his decision to prefer the evidence of DW1 to that of PW I regarding how the accident occurred."

It appears clearly from the above decision that once parties have accepted a document adduced in evidence and relied on it they are deemed to have accepted it. In this case however, both parties did accept the said document before and during the trial.

The purpose of introducing a pre-trial scheduling conference under order XII of the Civil Procedure Rules was to quicken trials and to avoid unnecessary length procedures. It would defeat the purpose of that law if parties were required to put in issue what they had already agreed upon at a pre-trial conference.

Here we may add, that the practice of admission of facts and documents at a pre-trial conference, is now universally accepted in common law jurisdictions.

The cases cited by counsel for the respondent **Des Raj Sharma vs R** and Okwanga vs Uganda are inapplicable as they relate to criminal and not civil procedure. In civil matters the Evidence Act $(CAP 6)$ must be read together with Civil Procedure Act $(CAP 71)$ and the Rules made there under.

Following from the above, ground 3 therefore must fail as it is devoid of any merit.

Having held as we have on ground 3, we find no reason to delve into ground one which appears to be general and as such offends the provisions of Rule 86(1) of the Rules of this Court which requires that grounds of appeal be specific and set forth concisely the grounds of objection to the decision appealed from.

Be that as it may, it is evident that the appellant did not hit the target of shs. $3,500,000,000/$ as to be entitled to the grand prize. This evidence is clearly set out in annexture "A" to the written statement of defence. That document clearly contains all the information required to determine whether or not the appellant 'booked' loans amounting to 3.5 billion shillings in the year 2007.

It is common ground that the prizes were restricted to loans booked in the year 2007. This is clearly set out in paragraph 3 (a) of the $\frac{1}{2}$ plaint.

Annexture 'A' has eight columns as indicated below in an excerpt from the said annexture.

| | | $\mathbf{2}$ | 3 | $\overline{4}$ | 5 | 6 | 7 | 8 | |----|---------------|---------------------------------|------------------------------|--------------------------------------------|----------------------------------------|----------------------|-------------------------------|---------------------| | CS | DSA PFC Desc | C Cus Name | Previous Loan Date | Previous Loan Original Amount | Previous Loan outstanding | Current Loan Date | Current Loan Amount | Disbursed Amount | | 51 | Tonny Lubulwa | Wycliffe Kapyre Katugugu | | | | 15-Jan-07 | 24,500,000 | 24,500,000 | | 51 | Tonny Lubulwa | Josta Grace Bizibu | | | | 15 Jan-07 | 20,000,00 | 20,000,000 | | 51 | Tonny Lubulwa | Jackson Kamwehanga Tumwebaze | | | | 16-Jan-07 | 26,800,000 | 26,800,000 |

## (Excerpt for Annexture "A" referred to above)

| | | | | | 51 | 51 | $51$ | 5 1 | $51$ | 5 1 | 51 | 51 | $51$ | 5 1 | 51 | $51$ | 51 | 5 1 | 5 1 | $51$ | $51$ | |----|---------------|-----------|--------------------------------------------|-----------------------------|--------------|--------------------|--------------|------------------|----------------------------------|----------------------|---------------------|--------------------|---------------|-----------------------|---------------------------|------------------------------------|--------------------|----------------------------|----------------------|------------------------|-----------------------| | | | | | | | | | | | | | | | | | | | | | | | | | | $\cdot\,$ | $\cdot\,$ | | | | | | | | | | | | | | | Tonny | | | | | | | | | | onny Lubulwa | onny Lubulwa | onny Lubulwa | onny Lubulwa | Tonny Lubulwa | Tonny Lubulwa | Tonny Lubulwa | Tonny Lubulwa | Tonny Lubulwa | Tonny Lubulwa | Tonny Lubulwa | Tonny qubulwa | Tonny Lubulwa | Lubulwa | Tonny Lubulwa | Tonny Lubulwa | Tonny Lubulwa | | | GRAND TOTAL | | $\cdots$ | $\cdots \cdots$ | | | | | | | | | | | | | | | | | | | | | | $\vdots$ | $\vdots$ | Joy Kageye | Ntegeka KLato Eden | Agaba Isreal | Paul Senoga Lumu | Ndinyenka Robert Twinomugisha | Francis Onya Okolong | Agness Mary Onyango | Kayizzi Alex Pross | Ojak Ben | Nsamba Sseguya Joseph | Cynthia Butele | Tumwine Apollo | Luyimbazi Nickolas | William Kiganda | Juliana Muhawe Nzaba | Daid Wanume Kitamirike | Carol Tugume Ssekandi | | | | $\vdots$ | $\vdots\\$ $\vdots$ | | | 16-Aug-05 | 01-Dec-05 | | | 11-jan-05 | 22-N0v-05 | 05-Sp-05 | 13-Mar-08 | 07-Dec-05 | 28-Dec-05 | 23-Aug-05 | 12-Jan 05 | | | | | | 13 | 2,397,781,832 | | | $\cdots\cdots\cdots$ | | 12,000,000 | 5,480,000 | | 15,550,000 | 15,00,0000 | 13,500,000 | 13,500,000 | 10,000,000 | 5,160,000 | 17,000,000 | 17,700,000 | 13,380,000 | | | | | | | 1,661,665,086 | | $\colon\quad$ | $\cdots \cdots \cdots$ | | 8,147,332 | 4,609,568 | | 11,711,813 | 10,621,667 | 9,519,182 | 8,544,142 | 7,676,790 | 4,180,790 | 12,489,418 | 11,160,047 | 9,825,360 | | | | | | | 8,400,048 | | $\vdots$ $\colon\thinspace$ $\vdots$ | $\cdots\cdots\cdots$ | 23-Jan-07 | 22-Jan-07 | 18-Jan-07 | 18-Jan-07 | 17-Jan-07 | 17-Jan-07 | 17-Jan-07 | 17-Jan-07 | 17-Jan-07 | 17-Jan-07 | 16-Jan-07 | 16-Jan-07 | 16-Jan-07 | 16-Jan-07 | 16-Jan-07 | 16-Jan-07 | 16-Jan-07 | | | 3,750,834,169 | $\cdot\,$ | $\cdot\,$ $\cdots \cdots \cdots$ | $\colon$ $\cdots \cdots$ | 11,800,000 | 17,800,000 | 5,600.000 | 5,250,000 | 15,700,000 | 17,700,000 | 15,700,000 | 13,000,000 | 24,000,000 | 5,675,556 | $\mathbf{1}$ 7,000,000 | 17,000,000 | 13,500,000 | $\mathbf{4}$ 12,000,000 | 7,000,000 | 30,000,000 | 17,700,000 | | | 2,089,169,083 | | | $\cdots\cdots\cdots$ | 11,800,000 | 9,652,668 | 990,432 | 5,250,000 | 3,998,187 | 7,078,333 | 6,180,818 | 4,455,858 | 16,323,922 | 1,494,766 | 4,510,582 | S 839,953 | 3,674,640 | 42,000,000 | 7,000,000 | 30,000,000 | 17,700,000 |

From the above evidence, it is apparent, for example that Luyimbazi Nickolas first obtained $\overline{a}$ loan on $12^{\rm th}$ January 2005 of shs.13.380.000/ $=$ by 2007 he had not paid off the loan and there was an outstanding amount of shs. 9,825,360/ $=$ . On 16th January 2007, this outstanding loan was restructured by adding on top of it another loan of shs. $3,674,640$ = appearing in the last column as "disbursed amount" making it appear as if it were a new loan of $shs$ 13,500,000/=.

The actual amount that was added in 2007 during the contract period was shs. $3.674.640/$ =. The appellant's contention that in 2007 he 'booked' a loan shs.13,500,000/= in respect of that customer in 2007 is not tenable as the only amount disbursed in $2007$ was the 'top up' of shs. 3,674,640/= already referred to above.

Column 7 indicates '*current loan amount*' which in respect of most of the customers includes the old loans disbursed earlier than 2007 which had not been fully paid as set out in column 5 (marked "Previous loan outstanding") and the new loan issued in 2007 (also referred as 'top up').

The appellant contends that the amount of money set out in that column 7 amounts to what he had 'booked' in 2007. It totals to shs. $3,750,834,169/=$ .

The above argument is not tenable because that amount includes money in respect of loans disbursed before 2007. The only amounts which can be said to have been 'booked' by the appellant and disbursed in 2007, during the contract period are those amounts in respect of the new loans wholly granted in that year and the 'top $ups'$ as they appear in the last column (8) above under the heading

"Disbursed Amount". The grand total under that column (8) is 2,O89,169,083. That is what the appellant'booked' in 2OO7.

e find that the term 'book'in the context of this case could not ave referred to loans that had been granted and disbursed prior 007. That term could only have referred to new loans disbursed in OO7, during the contract period and 'top ups' being money isbursed in 2OO7 to customers who had existing loan balances.

conclusion, we find that the total amount of loans 'booked'by the ppellant in 2OO7 was shs. 2,089,169,000 and not hs.3,750,834,169 as he contends.

e find no merit in ground 2 of the appeal.

e find that arguments raised by counsel in respect of custom and age of the term 'booking' are largely irrelevant in the termination of this appeal.

respect of ground 5 of appeal we are in agreement with the ed trial Judge that the appellant was at all times aware that e shares issued to him were restrictive in nature and thus bject to a number of conditions.

at it was up to him to ascertain those conditions which he did t. The conditions were set out on the respondent's website. As an ployee of the respondent he must have been aware of the stence of that website. Indeed he testified that he had searched website but had been unable to access the said conditions. This not imply that the conditions did not exist or that they were not rtainable.

ne of the conditions of the contract the shares awarded to the ellant could only mature during the period he was employed the respondent bank. He left his employment with the Bank

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voluntarily before the maturity of the said shares. We agree with the trial Judge's findings that, as a result, he was not entitled to the GBP of $\pounds$ 2000 he had otherwise qualified for.

This appeal therefore fails and is hereby dismissed.

It is trite law that costs follow the event. However, after taking into account the circumstances that gave rise to this appeal in particular the fact that parties construed the contract differently because it was unwritten, we order that each party bears its own costs in respect of this appeal.

$\mathcal{M}$ day of Feb. 2015. Dated at Kampala this... HON. MR. JUSTICE A. S. NSHIMYE JUSTICE OF APPEAL HON. MR. JUSTICE KENNETH KAKURU **JUSTICE OF APPEAL** Lusatenux. HON. JUSTICE PROF. LILLIAN E. TIBATEMWA JUSTICE OF APPEAL 16

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