Mbaraga v Ssegawa (Civil Appeal 4 of 2022) [2023] UGHC 419 (17 August 2023)

### **THE REPUBLIC UGANDA**

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

### **CIVIL APPEAL NO. 04 OF 2022**

### **(ARISING FROM CIVIL SUIT NO. 179 OF 2022)**

# **MBARAGA EMMANUEL ::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT**

### **VERSUS**

**SSEGAWA BAKER ::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

### **JUDGMENT**

*(Appeal against the Judgment & Orders of His Worship Nzwebe Phillip, Magistrate Grade One dated 30th March 2022)*

# *Before the Hon. Lady Justice Victoria N. N. Katamba*

# **BACKGROUND**

The Respondent instituted Civil Suit No. 179 of 2019 against the Appellant in the Chief Magistrates Court of Masaka at Masaka – the trial court,seeking recovery of Three Million Uganda Shillings (UGX. 3,000,000/=) for a breach of contract and costs of this suit.

The facts in the respondent's case are that he is a business man dealing in buying and selling real estate property and also deals as a broker between sellers and possible buyers.

According to the Respondent, the Appellant agreed with him that he would pay him Uganda shillings Three (3) million as commission if he finds him a possible buyer for his house situated at Kijjabwemi. The Respondent got for the appellant a buyer, a one Nassolo who purchased the house at 30 million shillings.

That the Respondent and the appellant executed an agreement providing for payment of the commission but later the defendant/Appellant turned against his word and refused to pay the plaintiff, and disowned the signed undertaking.

The Appellant/Defendant denied the Respondent's claims and stated that the agreement was ambiguous and unenforceable at law. Despite the purchaser, a one Nasolo Aisha, having testified


that it is indeed the Respondent who linked him to the Appellant, and despite the Appellant's testimony that he approached the Respondent over the intended sale, he maintained that the Respondent did not have locus standi to sue him for having changed his names without following the expected procedures which have been largely established in election petitions.

The trial Magistrate who heard the matter found for the Respondent, agreeing with him that the Appellant had breached his contract by refusing to pay the commission agreed upon and ordered him to fulfil his contractual obligations.

The Defendant/ now Appellant was dissatisfied with the findings of the Learned Trial Magistrate and thus instituted the instant appeal.

#### **Representation**

The Appellant was represented by *M/s Kitimbo Associated Advocates*

The Respondent was represented by *M/s Jojoma Advocates.*

At institution of the Appeal, the Appellant raised four grounds of appeal to wit;

- *1. The learned trial magistrate erred in law and fact when he held that the respondent had locus standi to sue the appellant whereas there was no valid change of names by the respondent fron Segawa Frank Sunday to Ssegawa Baker.* - 2. *The leaned trial magistrate erred in law and fact when he failed to find that the purported brokerage agreement allegedly executed between the appellant and the respondent was premised/ founded on past consideration and therefore legally unenforceable.* - 3. *The learned trial magistrate erred in law and fact when he failed to find that the purported brokerage agreement allegedly executed between the appellant and the respondent was ambiguous, void and legally unenforceable for lack of certainty.* - *4. The learned trial magistrate erred in law and fact when he failed to weigh and evaluate all the evidence on record and thereby came to an erroneous conclusion that there was a brokerage contract between the appellant and the respondent, and breach thereof by appellant whereas not.*


The parties filed written submissions in this appeal and the same have been considered in the writing of this Judgment.

#### **APPELLANT'S SUBMISSIONS**

The Appellant opted to argue ground two first and one last.

**Ground two**; *The learned Trial Magistrate erred in law and fact when he failed to find that the purported brokerage agreement allegedly executed between the Appellant and the Respondent was premised/founded on past consideration.*

The Appellant submitted that for any agreement exceeding 25 currency points to count as a contract, it must be in writing. This is provided for under *Section 10 (5) of the Contracts Act 2010* and that according to **Order 7 Rule 14 of the Civil Procedure Rules S. I-17**, the Plaintiff is mandated to produce/attach a document to his plaint on which he relies.

The Appellant asserted that he never executed any agreement with the Respondent.

The Appellant further submitted that the Respondent admitted in page 8 paragraph 6 of the record of proceedings that by the time the purported agreement was written, the purchaser of the house (Nassolo) had already agreed to pay the Defendant **Ug Shs 30,000,000/= (Uganda Shillings Thirty Million).**

That Past consideration was defined in several decisions like in *Lanyero V Okene & Anor Civil Appeal No. 29 of 2018 [2018] in which Hon. Justice Mubiru* defined past consideration as; a promise or an act that was performed prior to the contract. His Lordship went on to hold that; Past consideration generally does not count as consideration in a contract. Where it operates, the rule has the effect of preventing an otherwise valid contract from being formed.

In conclusion on this ground, the Appellant invited this Honorable Court to find that the trial Magistrate erred in law and fact when he failed to find that the alleged brokerage agreement executed between the Appellant and the Respondent, if any, was founded on past consideration.

**GROUND 3:** *The learned trial Magistrate erred in law and fact when he failed to find that the purported agreement allegedly executed between the Appellant and the Respondent was ambiguous, void and legally unenforceable for lack of certainty.*


The Appellant submitted that *Section 23 of the Contracts Act, 2010,* provides that an agreement whose meaning is not certain shall be void. He relied on the case of *Green Boat Entertainment Ltd Vs City Council of Kampala H-C-C-S No. 0580 of 2003 in which it was* **held that;**

*"in law when we talk of a contract, we mean an agreement enforceable at law. For a contract to be valid and legally enforceable there must be capacity to contract, intention to contract, consensus ad idem, valuable consideration, legality of purpose and sufficient certainty of terms. If in any given transaction any of them is missing, it could as well be called something other than a contract".*

The Appellant argues that the contract was vague and not capable of forming a basis of a contract for the reasons he lists below;

- *(i) It did not specify any particular property to be sold and where it was located.* - *(ii) The Appellant did not give any written authorization, document of title to enable the sale of property.* - *(iii)Additionally, the purported agreement was not witnessed, was drafted by the Respondent himself and the Appellant denied ever signing the same* - *(iv)No handwriting expert was led to prove that it was the Appellant who signed on the agreement.* - *(v) The purported agreement was not definite*

Ground 4: *The learned trial Magistrate erred in law and fact when he failed to weigh and evaluate all evidence on record and thereby came to an erroneous conclusion that there was a brokerage contract between the Appellant and the Respondent, and breach thereof by the Appellant whereas not***.**

The Appellant submitted that he intended to pay Sulait Mukiibi two million shillings as the person who linked him to the buyer and that it is not a coincidence that its Mukiibi Sulait and his cohorts that witnessed the agreement.


Furthermore, the Appellant submitted that the trial Magistrate in deciding whether there was a brokerage contract between the Appellant and the Respondent, solely relied on the evidence of PW2, which was full of inconsistences and totally ignored the evidence of DW2 and DW3. That Pw2 (Nassolo Aisha's) evidence too had many inconsistencies which the learned trial Magistrate ignored to rely on in her evidence.

In conclusion, the Appellant prayed that this court finds that the learned trial Magistrate omitted to properly evaluate the evidence and thereby arrived at an erroneous decision.

*Ground one; the learned trial Magistrate erred in law and fact when he held that the Respondent had locus standi to sue the appellant, whereas there was no valid change of names by the Respondent, from Ssegawa Frank Sunday to Ssegawa Baker.*

The Appellant submits that the trial Magistrate erred in law and fact when he held that the Respondent had locus standi to sue the appellant as (*Segawa Baker*) whereas there was no valid change of names by the Respondent.

The Appellant submitted that the Respondent instituted this suit claiming to be Ssegawa Baker and during the hearing of the case in examination he stated that his name is Ssegawa Baker. However, when cross examined on his identity, the Respondent stated *"I am sometimes called Sunday. Sunday is also my name I don't have my documents that show am Ssegawa Sunday but am Ssegawa Badru……on my National Identity card the names there are Ssegawa Frank Sunday"*.

That the Respondent himself admitted that he has never declared a statutory declaration or taken any established procedures for the change of names but merely stated that he went to NIRA and was told to wait for the expiration of his current National Identity card before he could change his name.

The Appellant also criticized the learned trial Magistrate stating that he misapplied the decision of *Misc Application No. 1580 of 2020: Peter Kasule Mpagi Mukoloboza [Administrator to the estate of the late Samwiri Kasule] & Anor –V- Faridah Nantale & 7 Ors as in the said decision, the Hon Justice John Eudes Keitirima* proceeded to state that**;**


*"Names cannot be used or changed casually as and when it is convenient to the Applicant. S.12 of the Birth and Death Registration Act Cap. 309 provides that any person being over the age of twenty-one years or widower, Widow, divorced person or married person who wishes to change his or her name shall cause to be published in the Gazette, a notice in the prescribed form of his or her intention to do so".*

He further submitted that the **Hon Justice John Eudes Keitirina** proceeded to state at **page 19 paragraph 1** that there was no evidence that the applicant changed his names as required under Section 12(1) of the Birth and Death Registration Act Cap. 309 (as amended).

The Appellant submitted that *Section 36 (1) of the Registration of Persons Act 2015* provides for the procedure for the change of names. That the said section was cited in *Hon. Kasule Robert Sebunya –V- Wakayima Musoke Nsereko & Electoral Commision [election petition No. 004 of 2016]* in which it was stated that it is important to emphasize herein that any adult person who has applied for issuance or re-issuance of a national identification card……or a holder of such card, who may wish to change his or her name with effect from 26/03/2015 must do so in compliance with section 36 (1) of the registration of persons Act 2015.

The Appellant also cited the authority of *Wasswa Moulders (U) Ltd (Miscellaneous Application 685 of 2017) [2017]* in which a suit was instituted in the names of Moulders (U) Limited instead of Moulders Limited. In this case, now retired *Justice David Wangutusi* relying on the case of Fort Hall Bakery Supply Company Vs Fredrick Muigai Wangoe (1959) EA 474 held that "*A non-existent person cannot sue and once the Court is made aware that the Plaintiff is nonexistent, and therefore incapable of maintaining an action it cannot allow the action to proceed"*

In conclusion, the Appellant prayed that the appeal be allowed with costs.

### **RESPONDENT'S SUBMISSIONS**

The Respondent adopted the order followed by the appellant in arguing the grounds.

*1. The leaned trial magistrate erred in law and fact when he failed to find that the purported brokerage agreement allegedly executed between the appellant and the respondent was premised/ founded on past consideration.*

The Respondent submitted that *Section 10 of the contracts Act 2010 defines a contract as an agreement made with the free consent of the parties with capacity to contract for a lawful object with intention to be legally bound.*

*That Section33 contracts Act provides for the obligation of the parties to a contract to perform their respective promises*. The Respondent cited the case of *William Kasozi versus DFCU Bank Ltd HCCS 1326/2000 in which court held that "once a contract is valid, it creates reciprocal thoughts and obligations between the parties to it..... It is trite law that when a document containing contractual terms is signed in the absence of fraud, or misrepresentation, the party signing is bound by its terms.*

The Respondents further submitted that paragraph 4 of the plaint and during examination in chief and cross examination of the Respondent by counsel for the Appellant, he testified that the defendant approached and engaged him to act as a broker to sale his house in Kijjabwemi. That after getting the buyer, the Appellant refused to pay him. The agreement in question was presented for identification and court was to consider it during judgement in which appellant wrote his name in the agreement personally. The agreement was made without any fraud.

The Respondent further submitted that the evidence in chief by both the Appellant and Respondent shows that what was to be sold was a house in Kijjabwemi "A", Masaka city. The appellant's evidence did not state to the contrary but that the plot had a house thereon.

Furthermore, the Respondent referred court to the evidence on oath by PW2 Nasolo Aisha that it was the respondent who led her to the Appellant and not any other person and that it should be considered by this court. PW2 Nasolo Aisha's evidence on oath was that she was linked to the Appellant by the Respondent in this matter and nobody else. That this is the major and relevant fact in her evidence and in this suit. This piece of evidence is very pertinent and useful in this case to solve any other doubt. The Respondent argues that the contract was formed when the Appellant approached and requested him to act as a broker in selling his house at Kijjabwemi. The Respondent's acceptance and bringing / introducing the buyer who indeed bought the property sealed off a valid contract between the Respondent and Appellant.

In conclusion the Respondent prayed that there exists a valid brokerage commission agreement between the parties.

## *2. The learned trial magistrate erred in law and fact when he failed to find that the purported agreement allegedly executed between the appellant and the respondent was ambiguous, void and legally unenforceable for lack of certainty.*

The Respondent submitted that the agreement dated 8/9/2019 meets the requirements of the elements of a contract. That the agreement in whole has meaning which is certain that once the Respondent sells the house he would be paid Ushs 3,000,000/= for brokerage services.

# *3. The learned trial magistrate erred in law and fact when he failed to weigh and evaluate all the evidence on record thereby came to an erroneous conclusion that there was a brokerage contract between the appellant and the respondent, and breach thereof by appellant whereas not.*

The Respondent supported the Judgement of the trial court which relied on the evidence of PW2, a one Nasolo, who is the one that bought the house from the Appellant. That she testified that the house was shown to her by the Respondent. That the evidence of the appellant's witnesses was immaterial and concocted.

*4. The learned trial magistrate erred in law and fact when he held that the respondent had locus standi to sue the appellant whereas there was valid change of names by the respondent fron ssegawa frank Sunday to ssegawa baker*

The Respondents relied on *Misc Aplication number 1580 of 2020; Peter Kasule Mpagi Mukoloboza (Administrator of the estate of the late Samwiri Kasule) & Anor versus Farida Nantale & 7 Others)* in which court emphasized that the nexus of the names must be explained and that if there is variance, that variance must have been explained. In that case the applicant used


different names for different estates which the Judge held to have made the situation worse when he didn't reflect the same names.

That the Respondent during the cross examination by appellant's counsel, testified that he got the name Baker when he became a moslem about four years ago. On his national ID the names there are, Ssegawa Frank Sunday. That the said Ssegawa Frank Sunday is the same person as Ssegawa Baker."

That on further cross examination on in May, 2021, the Respondent still emphasized and testified that he became Ssegawa Frank Sunday when he was born and professed Catholicism.

The Respondent submitted further that in accordance to his testimony, he went to NIRA (National Identification and Registration Authority) to change his names and he was advised to wait for his National Id to first expire.

In conclusion, the Respondent submitted that the technical omissions as regards to this ground are cured by Art. 126 (2) (e) of the 1995 Uganda constitution. He submitted that this court should find that he had locus standi to sue.

#### **DETERMINATION OF COURT**

I am alive to, and I have discharged the duty of this first appellate court which is to re-appraise the evidence and subject it to an exhaustive scrutiny and come to its own conclusions as was stated in a plethora of authorities like *Uganda Revenue Authority versus Rwakasanje Azariu & 2 Ors; CACA No. 8/2007; Fr. Narsensio Begumisa and 3 Ors versus Eric Tibebaga; SCCA No. 17 of 2002 and Banco Arabe Espanol versus Bank of Uganda; SCCA No. 08 of 1998.*

I will now address the grounds of appeal as argued by the parties.

Ground 2: *The leaned trial magistrate erred in law and fact when he failed to find that the purported brokerage agreement allegedly executed between the appellant and the respondent was premised/ founded on past consideration.*

The Appellant contends that the brokerage agreement that was admitted on the record of the trial court was premised on past consideration because the Respondent stated in his testimony that it was executed after the parties had conducted the sale of Kijjabwemi property.


Past consideration refers to an undertaking to pay for a service already offered. Ordinarily, the promiser may not be liable to make good of his promises for past considerations except where the service in context was requested by the promiser in the first place. This court is persuaded by the additional reasoning for upholding the denial of the claim in the American case of *Mills vs. Wyman Supreme Court of Massacusetts [20 Mass] 207 (1825)* which supports the Respondent's case.

In this case, the Appellant testified that he approached the Respondent to sell his house but he instead insists that it was another broker that enabled him to identify a purchaser to his property. The purchaser of the property, *Ms. Nasolo Aisha*, testified that prior to purchasing the Appellant's property she did not know any other broker in Masaka but the Plaintiff/Respondent and that he is the one who linked her to the Appellant.

In the premises, since the purchaser stated that it is the Respondent who linked her to the Appellant, this court finds that the Appellant's claims of past consideration are not made out because he benefited from the brokerage agreement/or linkage that availed him of the Respondent's services.

Ground two fails.

## **GROUND 3:** *The learned trial Magistrate erred in law and fact when he failed to find that the purported agreement allegedly executed between the Appellant and the Respondent was ambiguous, void and legally unenforceable for lack of certainty.*

The Appellant argues that the brokerage agreement was ambiguous, void and legally unenforceable and he lists five reasons to wit;

*i)It did not specify any particular property to be sold and where it was located.*

*ii)The Appellant did not give any written authorization, document of title to enable the sale of property.*

*iii)Additionally, the purported agreement was not witnessed, was drafted by the Respondent himself and the Appellant denied ever signing the same.*

*iv)No handwriting expert was led to prove that it was the Appellant who signed on the agreement. v)The purported agreement was not definite*

I partly agree with the Appellant that the brokerage agreement should have specified the location of the house to be sold but the fact that the purchaser indicated that the Respondent took her to the


Kijjabwemi house and this is also the Appellant's address that was indicated in the agreement, the omission does not go to the root of the document as to render it totally ambiguous.

As for the contention as to non –existence of a written authorization and the fact that the impugned brokerage agreement was not witnessed, there is no law that requires for the same that is known to me and neither has counsel cited any law that was contravened by the alleged omissions. A broker, not being the vendor of the property, clearly did not need to be armed with an authorization to sell the property.

The Appellant also contends that no handwriting expert was called to confirm that the handwriting on the impugned brokerage agreement belongs to the Appellant.

#### *S. 43 of the Evidence Act Cap. 6 provides when court has to form an opinion as to identity of handwriting or finger impressions, the opinions of persons skilled in questions as to identity of handwriting or finger impressions are relevant.*

The Courts have had an opportunity to interpret S.43 of the Evidence Act in light of expert opinions put to them but at the end of the day, court has the last opinion as to whether to follow the opinions of experts because court is the expert of all experts. *See the Hon. Lady Justice Margaret Mutonyi in Uganda vs. AYW High Court Criminal Division HCT-00-CR-SC- 0422-2022.*

In the instant case, it appears that the learned trial Judicial officer, having considered the several signatures of the Appellant which appear on his affidavit in support of his Application for leave to appear and defend, written statement of defence among other documents, saw no need for another expert opinion on the matter.

The above state of affairs demonstrates that the learned trial Magistrate grade one as an expert of experts exercised his discretion and wisdom not to interfere with the parties' omission to move court over the same. I do not find it necessary to tamper with this exercise of discretion and findings of the learned trial Magistrate Grade one on the matter.

Lastly, whereas the Appellant as a defendant had no duty to prove the veracity of a handwriting that was attributed to him at the trial, the opportunity of filing the instant appeal presented to him another opportunity to apply for leave to adduce additional evidence. He had an opportunity to cause the impugned document to be subjected to an expert handwriting opinion and if negative, present it to this appellate court for its opinion. This opportunity was unexplored.


In conclusion, this ground of appeal is also rejected.

Ground 4: *The learned trial Magistrate erred in law and fact when he failed to weigh and evaluate all evidence on record and thereby came to an erroneous conclusion that there was a brokerage contract between the Appellant and the Respondent, and breach thereof by the Appellant whereas not***.**

I have answered this ground in the earlier grounds. I do not find it necessary to revisit it.

*Ground one: The learned trial magistrate erred in law and fact when he held that the respondent had locus standi to sue the appellant whereas there was valid change of names by the respondent fron ssegawa frank Sunday to ssegawa baker.*

I have noted the changes in the Respondent's names. The Respondent explained that when he was born, he was named Ssegawa Sunday. Later he converted to Islam and started to use the name Baker or Abubakari. He also stated that he approached NIRA to apply to change his names as required by law but was advised to wait for his National Id to expire and issue him with a new one with the changes in the names.

Whereas, the Respondent did not adduce evidence to confirm that NIRA turned him away and advised him to wait for his National Id to expire, it is undisputed that Uganda's current National Id's have an expiry date. It is also undisputed that NIRA has planned to phase out all earlier issued National Id's and issue out new ones with stronger security features in the near future. I also have no reason to doubt that NIRA advised him to wait for the current Id to expire.

In the premises I am disinclined to apply the strict standard of the law as enforced in Election Petitions against Candidates of Political offices on change of names against the Respondent as per the authority cited by the Appellant. In any case the identity of the Respondent was never disputed by the appellant and when he served him with court process, he responded premised on the fact that it was the Plaintiff/Respondent herein himself who had instituted the suit.

Election petitions on change of names follow the laid out strict procedure to ensure that candidates do not impersonate others with the view of bypassing the minimum academic requirements.


I have not been convinced that the Respondent had any desire to impersonate another person by his change of names because the Appellant admitted that he approached Respondent to sell his house. This means that the Appellant does not dispute the identity of the Respondent. He recognized him as the person he approached. His only contention is that it's Sulait Mukiibi that in fact linked him to the purchaser. The purchaser testified that it is the Respondent who appeared before court and whose case she supported that linked her to the Appellant to sell his house to her. In raising the issue of identity, the Appellant is really trying to find a clever way of avoiding his obligations.

In conclusion this ground also fails. The appeal is hereby dismissed with costs.

Orders:

- 1. An order issues upholding the Judgment and orders of the trial court. - 2. An order issues dismissing the Appeal - 3. The Respondent is awarded costs of this appeal.

Dated and delivered electronically this 17th day of August, 2023.

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#### **VICTORIA NAKINTU NKWANGA KATAMBA**

**JUDGE**