Nsubuga v Ssendege (Civil Appeal 14 of 1991) [1992] UGHC 36 (14 January 1992)

Full Case Text

## Time How. Mr. Justice A. R. Solvade

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

HIGH COURT CIVIL APPEAL NO. 14/91

VICENT NSUBUGA 111111111111111111111111111111

APPETIANT.

## VERSUS

He ban ennity. If while EXECUTE A SECTION OF A SECTION OF A SECTION OF A SECTION OF A SECTION OF A SECTION OF A SECTION OF A SECTION OF A SECTION OF A SECTION OF A SECTION OF A SECTION OF A SECTION OF A SECTION OF A SECTION OF A SECTION OF A SECT ROSE SSENDEGE wour of the us BEFORE: The Honograble Mrs. Ag. Justice M. Kiraju. $\overline{0000}, \overline{c12}, \overline{310}$

JUDGEMENT.

$\cdot \cdot \cdot \cdot \cdot \cdot \cdot$

$\cdots \cdot s$

$\cdots \cdots$

the a be of from . W $\mathcal{N}^{\prime}$ within This is an appeal against the judgement and decree of Magistrate Gnade L delivered at Masaka on 22/3/91 in Civil $:105$ Suit No. 43/89 The appellant Vicent Naubuga who was the $v_{2,1}$ is $v$ $r!$ defendant in the lower court was disatisfied with the Magistrate's and thing decision in favour of the respondent/plaintiff one Rose Ssendege hence this appeal to the High Coart.

The plaintiff sued the defendant under Order 33 of Civil $\mathcal{A} =$ Procedure Rules where she claimed Shs.315,000/= allegedly advanced to the defendant in a written agreement dated 18/5/89. The plaintiff alleged in her plaint that the defendant had failed to pay the said amount on due date as agreed in the $\mathbf{J}$ : agreement. The defendant successfully applied under Order 33 (slass) rule 4 of C. P. R. for Leave to defend the suit. In his defence the defendant alleged that the plaintiff gave him it Shs: 315,000/= for purchasing contraband goods, which he bought webut the same were later impounded by the customs officers

$...12$

and that the plaintiff must bear the loss. With reference to the agreement the defendant pleaded that the same was illegal 一个地方 as it was made in furtherance of an illegal transaction and that it was made on the representation of the plaintiff that $\scriptstyle{\{1,1,1,1,1,1,1,1,1\}}$ API NULANI. it would not be acted upon, that it was only to appease the 总质与需求中

$-2-$

creditors. Amphill Lead After hearing the evidence and submissions by counsels the Magistrate Tound in favour of the plaintiff, and the defendant was ordered to pay Shs.315,000/= plus interest at the rate of 50% from 18/7/89 until payment in full. The evidence of the plaintiff/respondent at the hearing of the suit was testified by Rose Ssendege P. W.1 who stated that she knew the appellant that he was a villagemate and worked in Kyotera as a busineseman. She stated that she had had dealings with the appellant in 1988. That the appellant went to her place and she lent him money, bat the principal sum and some profits. That the appellant came back

to use so that he brings back on 30/12/88 and brought back the capital Shs. 315,000/= and the profit of Shs. 80,000/=. The profit $-88$ was shared between them, the appellant took-Shs. 30,000/= and the respondent took Shs.50,000/2 P. W.1 did not know what business the gade t was engaged in. Then P. W.1 gave the appellent t $3^{\circ}$ T Shs.315,000/= to use again, but he did not show-up again\_ until May, 1989 when P. W.1 summoned him'to her place. The appellant of

reported to P. W.1 that the money she had givem him had sank (Zaafa)

$f$ $f$ and he went away. hardundate makes now at a so, we an smoomdad by the customs - fficers

The respondent P. W.1 approached Fred Ssonko P. W.2 a friend

of the appellant and neighbour of the respondent, who held $\mathbb{S}$ ....

...../3

a meeting at his home in the presence of the respondent, the appellant and one January Ssebugwawo. At the said meeting the appellant admitted having taken the said money but said that it had sank. The appellant accepted to pay the money on $18/7/89$ and an agreement to that effect was entered into between the two parties and was witnessed by Fred Ssonko and January Ssebugwawo. P. W.1 testified that the appellant was not forced to sign the agreement. The terms of the agreement were that if the appellant paid by the agreed date the respondent would not be interested in the interest but if payment exceeded the agreed date then the issue of interest would arise. The $\mathbb{J}^{\mathbb{N}}=\mathbb{L}[\widetilde{R}_{\mathbb{N}}]_{\mathbb{N}}$ said agreement was tendered in court as Exh. P.1 The respondent testified that she did not know what business the appellant used to engage in and did not know the source of the goods. P. W.2, Fred Ssonko testified that he knew the appellant, that he was his friend and they had traded together. That $\cdot \mathop{\rm tr}\nolimits_{\mathop{\rm tr}\nolimits}$ the respondent approached him and asked him to approach the appellant about the money. That there was a meeting at $\mathcal{A} \approx \mathcal{A}$ P. W.2's place where the appellant admitted that the money had sank and requested the respondent to be patient. That the appellant admitted that he owed the respondent Shs. 315,000/= and he was given 2 months in which to pay. An agreement was made between the parties and signed, it was drawn by the appellant and he was not forced to make the loan Agreement. P. W.2. admitted that the son of the respondent had once been causht with a gun and denied having told the appellant that if he

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$\mathcal{A}(\mathcal{A}) = \mathcal{B}_{\mathcal{A}}(\mathcal{A}) \otimes \mathcal{A}(\mathcal{A}) \otimes \mathcal{A}(\mathcal{A}) \otimes \mathcal{A}(\mathcal{A}) \otimes \mathcal{A}(\mathcal{A}) \otimes \mathcal{A}(\mathcal{A})$

TOT SANCHE MAY THE PERSON

$\mathbb{E} \left\{ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb$

$\overline{z}$

'did not undcr-take to pay the money he would be in danger. Vicent Nsubuga, D.\$,\_1 in his defence testified that ! " ; .. ' • ' ' ' J 'the\* respondent was knowntoUier and that she lived in Kyote^a. That before the dispute arose, he \* had^kQown the ' respondent for yegrs. That in 1989 the respondent sent W'alaTcJra., to call him;;\vith a letter. That the respondent told him that she wanted the appellant to work for her after she had given him money. That she gave him Shs,310,000/= with which he was to \ ■purchase goods for her and she would sell them, then depending k i \ on the profit she would pay the appellant a commission. Thathe accepted the terms and started working'! That during the 'r '■••■ •• • i-r . . - i first trij) he bought 11 tyres which he delivered to the respondent • .• w . I but was never paid because one tyre was not yet sold off and ' : . ! nd' was .asked .to wait until she got the money. ' That.later she gave clxim Shs.310,000/= and he bought 9 tyres which he delivered , to her.. That those 9 tyres had been impounded by C. I. O Kasaali, . but the respondent gave him money to go to Bukoba and collect"'-- . ' the receipt and later the tyre? were released. That he did - not get any commission on the second trip because she wanted ' him to- go back quickly. That the appellant went the 3rd time and brought 7 second hand tyres ,'fof- lorries, which were sold at Shs.395 j000/= in Kampala. That:'he-.1 brought Shs.290,000/= ■to the; respondent, and .was later given Shs.65,000/= which he gave to the respondent. That he .was later given Shsi20,000/= • ' ' • but-.that- ther balance of Shs• 15:, 000/=..was never paid. That . ■••-\*'•. ' .. i . ; the•respondent told him that the total amount of the profit \* • • • U . ... • , . . e

was Shs. 180,000/= and she paid him Shs. 30,000/= as commission. That the appellant went back on another trip with Shs.310.000/= and brought 11 tyres from Mwanza but the tyres were impounded by C. I. D and he ran away to avoid being arrested. That he came back to Uganda and reported the matter to the respondent who did not believe his explanation. Later the respondent sent P. W.2 to him who told him that he should go and make an agreement and that if he refused the respondent's son Jimmy who had a gun would shot him. That D. W.1 made the agreement after learning that Jimmy had a gun and that he first wanted to put them off because he knew he would not pay the money.

The second defence witness was Joseph Ssozi D. 2 who is the secretary for R. C.1) of Kalangala Zone. He testified that he knew both parties, that the respondent had taken the dispute to R. C. court on $28/7/89$ suing the appellant for converting her money. That the respondent was claiming Shs.315,000/= from the appellant. That it had appeared to the committee that there had been previous dealings between the parties. On cross-examination he stated that the appellant never reported That to R. C.'s that he was preseurised to sign the agreement. the case was referred to R. C II as the matter appeared complex. He further testified that if one agrees to repary money it, means it was lent to him and that according to the agreement the appellant agreed to repay the money.

Upon the above evidence and submissions by counsels the $\cdots \cdots$ learned trial magistrate found that the plaintiff/respondent which grandmine.

$000/6$

$\mathbf{i} \cdot \mathbf{w} = \mathbf{k}$

$-5$

had proved her case on balance of probabilities and accordingly entered judgement in her favour as already stated above. The appellant being disatisfied with the decision appeald this court. The grounds of appeal as set out in the memorandum of appeal were that we

$\bullet$ 6 $\bullet$ .

The learned trial magistrate erred in law and fact when he $\tau$ . failed to hold that the defendant/appellant received the money in issue from the plaintiff respondent in the capacity of agent for the latter and that at all times the property in the money and trade goods remained in the plaintiff / respondent who accordingly must hear the loss.

The learned trial magistrate erred in law and fact when $2.$ the failed to address himself to the fact that the agreement

(Ex. P.1) was made in the context of and in furtherance of . and/or was collateral to an illegal transaction or transactions and - thence that the agreement was void abinitio and unenforceable.

- The learned trial magistrate erred in law and fact when he $3.$ held that the said agreement (Ex. P.1) was voluntarily entered into by the defendant/appellant, - The learned trial magistrate erred in law and fact in $4.$ believing plaintiff/respondent's story in view of the following;-

$\mathcal{N}_{\bullet} \bullet \cdots$

(a) Plaintiff/respondent lied when she testified that it was the defendant/appellant who approached her and initiated the business dealings.

$1885$

$\epsilon \rightarrow \pi \pi$ (b) Plaintiff/Respondent lied when she testified that she lent the money in issue to Defendant/appellant whereas the agreement doesnot unequivocally stipulate

$\tilde{L}(\tilde{a}) \rightarrow \tilde{b}^{\dagger}$

$\mathcal{A}^{\mathcal{A}} = \mathcal{A}$

$\cdot$ $\tau_1$

$SO_0$

$\tau_{\rm{eff}}\sim 10^{-10}$

(b) Plaintiff/Respondent when she testified that she did not know what Defendant/Appellant was going to use the money for.

$\cdot$ 11. (d) Plaintiff/Respondent's story was half-told. (5) The learned trial magistrate failed to properly evaluate all the evidence so as to come to a correct and just decision The ppellamt's prayer is to set aside the judgement and

$\mathcal{A}(\mathcal{X},\mathcal{X})$

$\mathcal{M} = \mathcal{M}$

corders of the lower court and to substitute therefore an order dismissing the suit, to award costs of appeal and court below. which is the

i I shall now deal with the grounds of appeal one after another. I support of ground I of appeal Mr. Ssegirinya learned counsel for the appellant submitted that the subject matter of the suit was more complicated than was presented He contended that at all material time the appellant to court. was acting as an agent of the respondent. That from the evidence of $D-W.1$ it was the respondent who initiated the transaction, $\cdot, \tau_1!$ that it was her who called him to her home. Another fact in support of this ground he submitted was the fact that each time the appellant made a trip to Tanzania, the goods would

$...$

be sold and profit shared. And that the goods were sold by respondent or under her direction. He submitted that the $\mathcal{A}^{\mathcal{A}}_{\mathcal{A}}$ appellant was being paid a commission as anagent. He also challenged the agreement that it was made long after the receipt of the money and that in order to get the intention of the parties that all surrounding circumstances before the the agreement was made must be looked at. He contended that since the appellant was at all material time the agent of the respondent, that the property in the money claimed which was used as capital and the trade goods which were purchased by that money remained in the respondent who should therefore hear the loss which ensued from the commercial transaction which they undertook.

The issue of principal/agent relationship was introduced by the appellant in his testimony, first he stated that it was the respondent who initiated the transaction and sent one Walakira to call him. I agree with the finding of the trial magistrate that it is immaterial as to who initiated the transaction. What is important is the outcome of the negotiations after two people have sat and talked. From the evidence on record, the trial magistrate was right in finding that there

re was no agency relationship between the parties. The appellant did not adduce enough evidence to prove this allegation. The fact that the profits were shared and the money was returned to the appellant after each trip is not enough to establish a principal/agent relationship. With

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$-8-$ referance to the appellant's case, it is a pardinal principle

of law that he who alleges must prove. I have looked at

all the evidence on record, and I am convinced that the appellant

did not discharge this onus of adducing sufficient evidence T. Satisfans

to satisfy the required measure of proof on balance of probabilities $\tau_{\mathcal{M}} = \tau_{\mathcal{M}} \cdot \tau_{\mathcal{M}}$

that there was principal/agent relationship between $\mathcal{L}(\mathcal{L}, \mathcal{L}, \mathcal{L}, \mathcal{L}, \mathcal{L}, \mathcal{L}, \mathcal{L}, \mathcal{L}, \mathcal{L}, \mathcal{L}, \mathcal{L}, \mathcal{L}, \mathcal{L}, \mathcal{L}, \mathcal{L}, \mathcal{L}, \mathcal{L}, \mathcal{L}, \mathcal{L}, \mathcal{L}, \mathcal{L}, \mathcal{L}, \mathcal{L}, \mathcal{L}, \mathcal{L}, \mathcal{L}, \mathcal{L}, \mathcal{L}, \mathcal{L}, \mathcal{L}, \mathcal{L}, \mathcal{L}, \mathcal{L}, \mathcal{L}, \mathcal{L}, \mathcal{$

him and the respondent. The first ground of appeal must therefore 交換機能 (Paction) Bin さんこうさ fail.

$\mathcal{L}^{\mathcal{L}}$ $\mathbf{R} = \mathbf{R} \mathbf{S} \mathbf{S} \mathbf{S} \mathbf{S} \mathbf{S} \mathbf{S} \mathbf{S} \mathbf{S} \mathbf{S} \mathbf{S} \mathbf{S} \mathbf{S} \mathbf{S} \mathbf{S} \mathbf{S} \mathbf{S} \mathbf{S} \mathbf{S} \mathbf{S} \mathbf{S} \mathbf{S} \mathbf{S} \mathbf{S} \mathbf{S} \mathbf{S} \mathbf{S} \mathbf{S} \mathbf{S} \mathbf{S} \mathbf{S} \mathbf{S} \mathbf{S} \mathbf{S} \mathbf{S} \mathbf$

On the second ground of appeal counsel for the appellant rent has the $\sim 10^{-1}$ submitted that the agreement was illegal and therefore $\cdot \uparrow \quad \text{with} \quad \text{in } \mathcal{V}^{\text{int}} \quad .$ unenforceable as it was connected with the illegal purpose $\mathcal{A} = \mathcal{A} \mathcal{A} = \mathcal{A} \mathcal{A} \mathcal{A} \mathcal{A} \mathcal{A} \mathcal{A} \mathcal{A} \mathcal{A} \mathcal{A} \mathcal{A} \mathcal{A} \mathcal{A} \mathcal{A} \mathcal{A} \mathcal{A} \mathcal{A} \mathcal{A} \mathcal{A} \mathcal{A} \mathcal{A} \mathcal{A} \mathcal{A} \mathcal{A} \mathcal{A} \mathcal{A} \mathcal{A} \mathcal{A} \mathcal{A} \mathcal{A} \mathcal{A} \mathcal{A} \mathcal{A} \mathcal{A} \math$ which was to smuggle goods from Tanzania to Uganda in breach

of statute and against public policy. That the respondent can $\alpha_1\alpha_2=\beta_1^2$ $\mathfrak{c}(\mathfrak{D},\mathfrak{L}_{\mathfrak{D}^{\ast}},\mathfrak{L}_{\mathfrak{D}^{\ast}},\mathfrak{L}_{\mathfrak{D}^{\ast}},\mathfrak{L}_{\mathfrak{D}^{\ast}},\mathfrak{L}_{\mathfrak{D}^{\ast}},\mathfrak{L}_{\mathfrak{D}^{\ast}},\mathfrak{L}_{\mathfrak{D}^{\ast}},\mathfrak{L}_{\mathfrak{D}^{\ast}},\mathfrak{L}_{\mathfrak{D}^{\ast}},\mathfrak{L}_{\mathfrak{D}^{\ast}},\mathfrak{L}_{\mathfrak{D}^{\ast}},\mathfrak{L}_{\$ not deny that she had no knowledge of what business the appellant was engaged in That the respondent admitted that the appellant had no premises of his own and that he did not have an

import Maen That $D_{\bullet}$ 1 had testified that during one $\omega$ $\omega$ : of the tries the tyres were impounded by District Secutity Officer (DSO) Lakai and that with the knowledge of the respondent the appellant had to go to Tanzania and get a receipt before tyres $\sim$ 30 $\sim$ 175 $\sim$ 30 could be released, That the contract can not be severed from "好事"的第三个时候。 $\mathcal{L}_{\mathcal{A}}$ . the illegal transaction which conceived it, that the contract and whate a still that the faller $\mathbf{1} = \mathbf{1}$

was therefore illegal and unforceable and the loss must-lip 使用计选择化甲基二甲基苯胺 $\sim$

where it has fallen.

· 下 1件中, 中, Counsel for the Respondent, Mr. Kamuganda submitted that there was no illegality in the document referred to. That it could not be argued that the agreement was executed in furtherance of an illegal act or acts because according to the evidence the

$...$ Mo

the transaction of lending money and receiving it according to the respondent had been completed earlier and was not illegal. He further submitted that it was immaterial whether the appellant has business premises or not and the fact that tyres came from Tanzania it did not necessary mean that they were contrabands. Counsel also submitted that it was interesting to note that the appellant was arguing his case on alternative grounds. First that the agreement was illegal and should be rejected and secondly that the appellant was forced to sign it. From the judgement of the magistrate on pages 8 and 9 he made the following conclusion in respect of the second ground of appeal.

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" I agree with Mr. Kamugarda that the issue of illegality of the contract is a mis-conception. It is true that there was no transaction to further at the time of the agreement because all the transaction had been completed. The plaintiff was therefore not in furtherance of any illegal contract. $\mathbf{I}^{\cdot}$ construe the Agreement in its meaning and the defendant out to pay" $\mathbb{F} = \mathbb{F}_2^2 \mathbb{F}_2^2 \mathbb{F}_3^2 \mathbb{F}_3^2 \mathbb{F}_3^2 \mathbb{F}_3^2 \mathbb{F}_3^2 \mathbb{F}_3^2 \mathbb{F}_3^2 \mathbb{F}_3^2 \mathbb{F}_3^2 \mathbb{F}_3^2 \mathbb{F}_3^2 \mathbb{F}_3^2 \mathbb{F}_3^2 \mathbb{F}_3^2 \mathbb{F}_3^2 \mathbb{F}_3^2 \mathbb{F}_3^2 \mathbb{F}_3^2 \mathbb{F}_3^2 \mathbb{F}_3^2 \mathbb{F}_3^2 \mathbb{F}_$

After the magistrate had found that there was no first principal/agent relationship between the parties because the called any evidence to prove it, he was therefore not going to connect the illegal transactions carried out by the $\mathcal{A}^{(1)}$ appellant after receipt of the money with the respondent. $\mathbf{I}$

$\mathfrak{F}(\mathfrak{m}) = \mathfrak{S} \mathfrak{M}^{\mathfrak{g}} \oplus \mathfrak{F}^{\mathfrak{m}} \oplus \mathfrak{F}^{\mathfrak{m}} \oplus \mathfrak{F}^{\mathfrak{m}}$

$\cdots \cdots \cdots \cdots \cdots \cdots$

$\mathbb{Z}^{\mathbb{Z}} = \mathbb{Z}$

ta II-minia

$-122$ $-1$ $-1$ $-121$

$-$

I also agree with the trial magistrate that there was no furtherance of illegal transaction. The fact that the appellant did not have a licence or have premises of his own or the fact that there was a lot of illegal trade in the area did not prove that the respondent was involved in the illegal trade. The evidence adduced by the appellant was not enough to connect the respondent with the illegal trade. I therefore find that the agreement was not illegal.

The third ground of appeal was that the agreement was entered into under duress after the appollant was scared by being told that the respondent's son had a gun. The trial mediatrate decided that; - "No force was used because if this were to be so then the defendant should have taken trouble to report to the authorities immediately." The evidence concerning this issue is on page 15 of the proceedings, in the testimony of the appellant D. W. 1 and is as follows;-" After some 4 months the plaintiff sent for me through her son called Jimmy. I went there after 2'days but she was not there. Later she sent Fred $(P. W.2)$ who told me that I should go and make an agreement and if I did not, the plaintiffs. son Jimmy would shot me because the money did not belong to the plaintiff alone. Later I learned that Jimmy had a gun. Because I feared death I went and made the agreement. I went to Fred's home at night and found Fred and other people there including Januario Ssebugwawo. I found them ready. $\mathbb{E} \mathbb{E} \mathbb{E} \mathbb{E} \mathbb{E}$

$...112$

I not a pen and made an agreement accepting the money. The plaintiff said she would kill me if I did not pay her money. I wrote it myself I just wanted to put them off $\mathcal{A} = \mathcal{A}$ because I knew I would not pay the money. " $5x + 3x^2 = 4x^2 - 3$ From the cited evidence it is clear that the appellant never took the pureement to be serious, because as he says in his testimony, he just wanted to put them off. If the appellant had taken the alleged threats seriously he surely could have done something about it like reporting to authorities. The appellant never prised the matter of being pressurised to sign the agreement until the matter was taken to R. C. I court more than 2 months after the signing of the agreement.

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It is also important to note that in his written statement of delence the appellant never pleaded that he excuted the agreement under duress instead para. 7 of the written statement $m \in \mathbb{R}^{m \times n}$ of defence was as follows the

. Further or in the alternative defendant states. that the said agreement is unconsionable and or a **maily** as the same was procured by

represent tions on the part of the plaintiff that the same was required to appease plaintiff's creditors and hence that it was not to be acted upon." $\mathcal{A} \leftarrow \mathcal{A} \leftarrow \mathcal{A}$

However, this defence was completely abandoned without a ward by the appellant, no evidence was adduced at the trial to support it, instead the defence of duress was substituted. The trial magistrate's finding was that

$\delta$ ...

$\Delta$

$...113$

$\tau \sim$

" A close friend of the defendant $(F. W.2)$ would not have come and given evidence or forced him to enter into an Agreement "

The majistre to believed the evidence of the respondent and her witnesses and found that the appellant was not forced to sign the arcement. From the evidence I am inclined to agbee with the twind ampistrate that the appellant was not forced to sign the a reement. As he testified the appellant signed the appoint to put off the respondent, he did not take it seriously, Counsel for the appellant's submission that the magint be erred in saying th t since P.v.2 was a friend of the ampellant he could not have forced him to sign, he submitted that a friend can betray you. However, with due respect to counsel, in respect of this particular case there was no evidence th t the F. W.2 had betrayed the appellant. The appellant did not dispute the fact that P. W.1 was his friend and he kept referring to him in his testimony as Fred which indic and that they were close.

From the above evidence I am convinced that the appellant was not forced to sign the agreement but did it willingly without serious regard to its consquences. This ground of argeal must also fail.

The ground $4(a)$ has already been covered under ground I of the appeal. The truth is that it is not important who initiated the business dealings between the parties, even if the manistrate had found that it was initiated by the

$-114$

$-13 -$

respondent, he would still have had to find what did they agreed on and that is what is important. An the appellant filed to actuce evidence to prove this point. The magistr te did not err in law or fact regarding this matter.

$-14$

With regard to ground 4(b) of the appeal, the agreement referred to is is follows;-

> " Kyotera $18/5/89$ .

I VICENT NSUBUGE received from Mrs. Ssendege Shs.315,000/= to use and the money got ditched (lost) from me when she demanded it from me I do not have it so I gave her time within which to pay her by 18/7/89 and she had not charged me any interest.

Then the date of 18/7/89 expires without the money fully paid we shall discuss interest on that money.

Witnesses:-

1. Ssonko Ssenkungu Fred

2. Junuario Ssebuggwawo

I the owner of the money - Mrs. Rose Ssendage

I who received the money - Vicent Nsubuga.

From the above translated agreement the magistrate was right in his finding that the money was lent to the appellant. From the proceedings both parties understood what their obligations were under the said agreement. Simple agreements made by lay-men

without the assistance of lawyers cannot be expected to meet all the required standard of a proper legal document,

> $\mathfrak{t}^{\mathfrak{t}} \rightarrow \mathfrak{t} \bullet \bullet$ $\ldots$

> > $...15$

$\mathcal{A} = \mathcal{A} \mathcal{A} \mathcal{A} \mathcal{A}$

what is important is to get the intentions of the parties. I am of the opinion that the magistrate correctly interpreted ' " ' \* • - HI *i* the intention's of the parties and was correct in holding that money mis advanced to the appellant and he undertook to" repay it. On ground 4(c). and.(d). of the appeal that the respondent's story was half-told and that the magistrate should not have believed the respondent's story when she testified that h.o did not know what the appellant was going to use the money for. The magistrate believed the testimony of the res' undent, and based his decision on. the agreement. The magistrate -had the chance of seeing the witnesses give their testimonies and he choose to believe the story of- the respondent and. I am not going to interfere with^his findings.

On ground 5 of tlie appeal, counsel for the appellant submitted the judgement'was full of misdirections. Some *j* w of the issues raised by counsel under this ground are already dealt with under other grounds and I not going to repeat them.

V - T

Counsel submitted thnt-'-bn.' page 8 of the judgement the magistrate decided that ''More-over it is also interesting , to. note that when the'Defendant made an agreement of payment • he made one of Shs.515^0^0/= yet he said on the fourth trip bro-f ' ;'a-.-he y/as given 3'10,06b/=?//;ri;This:/is a terrible discrepancy in the defence and shows that the. defence story is untrue " Counsel contended thfV't the difference of Shs\*5000/= could not render the whole'story of the appellant untrue. Th»t

- 15

there was no reason why the appellant agreed to having made or agreement of Shs.315,000/= instead of that of Shs.310,000/-He submitted that this must have been lapse of memory. $I$ am in agreement with counsel for the appellant that the ruling on this matter was a bit too strong, it is likely that the appellant mixed up the figures and his counsel never assisted him to put it right. However, on the whole, the learned trial magistrate correctly and judicially evaluated the evidence before him and there was no miscarriage of justice the decision has occassioned. The magistrate properly directed himself and decided the case on balance of probabilities in favour of the respondent and I can find no good reasons to interfere with that decision.

However, I disagree with the interest of 50% awarded by the trial magistrate. In view of the fact that the interest was briginally waived by the parties when the agreement was Imade, I would allow interest at court rate from 19/7/89, the date of default of payment, until payment in full.

Except for the interest, the appeal is otherwise dismissed with costs here and in court below to the respondent. The decision of the trial magistrate will stand.

GWL Hem.

JUDGE. $Ag.$ $14/1/92$

$14/1/92$

$\ldots \vdash \ldots \vdash \ldots$

$\alpha \vdash \alpha$

Judgement Delivered Before Vicent Nsubuga - Appellant.

$\ldots \quad .$

haut Litia RICHARD LUTEERA

Ag. REGISTRAR, $14/1/92$

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