Nyero Owota v Ongom (Civil Suit No. 980 Of 1998) [1999] UGHC 54 (1 January 1999)

# **w** THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA ---------------- GI-V-II^SU-I-T--NQ.-98O-QF-1998----------------

Catherine Nyero Owota Plaintiff versus

Lt. Philip Ongom Defendant

Before: The Hon. the Principal Judge - Mr. Justice J. H. Ntabgoba

# JUDGEMENT

The plaintiff, Catherine Nyero Owota is a sister-in-law to the defendant, Lt. Phillip Ongom of the UPDF. The plaintiffsays that her sister, wife of the defendant passed away leaving him with orphans. The plaintiff brought tins suit against the defendant to recover from the latter a sum of Pounds sterling 13,000 or its Uganda currency equivalent. She claims she advanced this money to the defendant to enable him do the business of buying and selling foodstuffs e.g. posho to the Uganda Army and/or to the World Food Programme (WFP). The deal was that after one year the defendant would pay back to the plaintiff the principal loan of Pounds sterling 13,000= together with profits of Shs. 10,000,000/=.

The negotiations leading to the deal were commenced in or around October/November 1996. On or about 13th November, 1.996. the plaintiff

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who lived and still lives in London, sent to the defendant tire sum of Pounds sterling 13,000= cash. She <sent.it> through one Damani, an Asian businessman who carries ori the business'of, inter alia, a forexTbureau along Kampala Road, Kampala.

On 18/11/96 the defendant received and signed for the cash of pounds sterling 13,000 froti) Mrs Damani who testified on behalf of the plaintiff as PW2. Tendered as exhibit PV is the payment voucher signed by the defendant in acknowledgement of receipt of the sum of pound 13,000 from Mrs. Damani at her husbands Forex Bureau called Express Forex Bureau. The payment voucher bears the identity card number as NRA Card ID No. 01469 Armv No. RO 1469.

It appears to me that the defendant does not deny liability' because when he was served with summons to enter appearance in this suit, he transmitted the summons to his lawyers M/s Ladwar Onek & Co. Advocates, who entered appearance on behalf of the defendant but did not put in a defence. Consequently, a default judgement was entered by the Deputy Registrar in favour of the plaintiff and against the defendant. The hearing of the case has therefore been for formal proof pursuant to order 8 rule 4 ofthe Civil Procedure rules as amended by the 1998 Amendment Rules.

On February 22, 1999 when this suit had already been fixed for hearing and a notice to that effect had been served on the defendants' advocates and they had acknowledged the service on 9/2/99, they, the advocates wrote a letter to

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the Registrar ofthe High t uy which they forwarded a sum of UG Shs. 19,150,000/= under the following words:-.

"In the above matter wp represent the defendant. Without prejudice to our client's defence in the suit,,our client herein forwards the only amount in his possession on account ofthe plaintiff, i.e. shs. 19,150,000/= (Nineteen Million One hundred and fifty thousand only). We request court to receive this money and hold it in this suit." There having been no WSD filed and despite the entering into appearance of

the defendant, <sup>1</sup> agree with Mr. Kinyera P'Lodi, learned Counsel for the plaintiff, that the defendant should be taken to have admitted liability in which case I would make the following orders in satisfaction of what was prayed in the plaint:

- (a) the defendant. that the sum of Shs. 19,150,000/= deposited in Court by Counsel for the defendant on his behalf be paid to the plaintiff. According to Mr. P'Lodi, at the time of its deposit, this amount was equivalent to pounds sterling 8,399.00. This leaves a balance of pound/4601 as the indebtedness on the sum of poundal 3,000 advanced by the plaintiff to - (b) the defendant is therefore ordered to pay to the plaintiff that balance of pounds sterling 4601 or its Uganda equivalent as on the date of default in paying it which was on or about 18/11/97.

(c) the defendant is ordered to pay to the plaintiff the sum of Shs. 10,000,000/= which the defendant agreed to pay as a profit together with the sum of pounds sterling 13,000 a year after he had received it.

- **<sup>A</sup> <sup>3</sup> zx** - (d) adduced dial on In her statement of c.aim, the plaintiff included under the "particular *-j* ofspecial damages" an item called "Halifax Bank Charges" for arrea 's of pounds sterling 300.00. At the trial she adduced evidence in exhibit P4 showing a demand note from her Halifax Bank in the sum of pounds sterling 3,759.30. She states that this was dated 2/7/98 but that since that date, the indebtedness to the bank has increased with time to over pounds sterling 4,000. That may as well be. However, special damages must not only be specially pleaded. They must also be specifically proved. Although she pleaded pound sterling 300.00 at the time offiling the suit which was on 16/9/98,<sup>1</sup> take judicial notice of the fact that bank charges of this kind increase with time and since she has 2/7'98 she was being debited with pound sterling 3,759.00. I award it to her and tire defendant shall pay it to her also.

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- (e) London to give evidence in this case. The plaintiff also pleaded under special damages "Airticket charges". <sup>I</sup> allow her the return air ticket which she used to travel to and from - **X)** [ will now cum to genera! damages. The plaintiff claims that when the defendant started to shun her whenever she telephoned him, and even to make deceitful excuses, such as that he had supplied foodstuffs to the UPDF but Government could not pay him because he was a northerner, or that he purchased the produce and it was taken by the rebels, the plaintiff decided to travel to Kampala to make her own assessment ofthe situation. She naturally must have incurred travel expenses which she cannot prove as special damages. She must have incurred other expenses, such as on food and lodging. She stated that

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even her employment was in jeopardy and her creditworthiness at herbank has been dented for her failure to repay the bank loan of pc unds sterling-6,000 which-she-says-she-borrowed-and-topped-with-herpersonal savings so as to advance to the defendant the sum of pounds sterling 13,000. I find that the plaintiff is entitled to some general damages and I award her Shs. $4,000,000/$ = (four million shillings) as general damages.

She will recover from the defendant interest on $(a)(b)$ and $(c)$ at the Court rate from $18/11/97$ till payment in full. For the rest of the awards, including the general damages, the defendant will pay interest at the bank rate prevailing at the time of this judgement till payment in full.

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The defendant is also ordered to pay the costs of this suit.

J. H. Ntabgoba

Principal Judge

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### **THE REPUBLIC OF** UGANDA

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

## CIVIL APPLICATION NO.1Q OF 2000

#### IN THE MATTER OF AN INTENDED APPEAL

#### BETWEEN

## CAPTAIN PHILIP ONGOM APPLICANT

**•i V?**

AND

#### CATHERINE NYERO OWOTA RESPONDENT

(Appeal Arising from the Ruling of the Hon. Mr. Justice Ntabgoba P. J delivered on the 18th day of August, 2000 at the High Court of Uganda at Kampala in Miscellaneous Application No. 801 of 1999 arising from HCCS No. 980 of 1998).

#### ORDER

OKELLO, J. A., J. P BERKO, <sup>J</sup> A., Before their Lordships G. M TWINOMUJUNI, J A.

Upon hearing Mr. GEORGE OMUNYOKOL counsel for the Applicant and Mr. PETER MUKIDI WALUBIRI counsel for the Respondent, and upon reading the affidavit of CAPTAIN PHILIP ONGOM filed in this court on the 28th day of March, 2000 and the affidavit in reply of EDWARD K. WESONGA filed in this court on the 11th day of May, 2000,

IT IS HEREBY ORDERED that:-

- **1.** Leave be and is hereby given to the Applicant to appeal against the decision of the High Court dated 18th August, 1999. - 2. The Notice of Appeal be filed within 07 (Seven) days from the date of this order. - 3. Costs of the Application to abide by the result of **the** appeal.

Dated this 5th day of October, 2000.

EXTRACTED on this day of 2000.

day of Given under my hand and the seal of this Honourable Court this .

[ REGISTRAR

EXTRACTED AND FILED BY:- M/S OMUNYOKOL & CO ADVOCATES COLLINE HOUSE, FIRST FLOOR, PLOT 4 PILKINGTON ROAD, P. O BOX 6737, KAMPALA. TEL: 259083 FAX: 342969.

CompjQ/OoQom Appeal