Shell Uganda Limited v Michael Kibirango (Miscellaneous Application 303 of 2000) [2001] UGHC 131 (13 February 2001)


## JUDGMENT

Shell Uganda Limited hereinafter to be referred to as the plaintiff brought this action against Mr. Michael Kibirango (herein to be referred to as the defendant). The action is for recovery of a sum of Shs. 10,604,529/ $\pm$ (Ten Million Six hundred and four thousand five hundred and twenty nine shillings). The plaintiff claims that this money is an indebtedness to it by the defendant. It is alleged in the plaint that until the 1st day of April 1995, the defendant was an employee of the plaintiff in the capacity of the plaintiff's Head of Foreign Exchange operations. It is said that during the period of his employment he was entitled to a number of loan privileges which included:-

(a) Car loan shs. $420,000/-$

(b) Stanbic Loan (generated by the plaintiff shs.1,707,520-

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(c) Car loan (VV 2r8 UAN) purchase repayment balance sda.8,999 t52O/-

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(d) Initial bui.1din6 Ioan repayrnent balr'^nce shs.1,)75,2)B- (e) Undeducted G. P. T ba.].ance .shs. 'r'i,OO0,/=

The total indebtedness Hes thus !':t 8t 311e. 12,742,756- The plaintiff claims that tbe defendant's terniaal beneflts amounted to shs. 2r1)81227/-. After deductiog such benefit, the plainti.ff thus cLaius a sun of "hs. l!rggr2?91-

The defendant put in a defence of gr:neraL deniel L,ut bwo pleas are worth mentionin6: -

(a) In para6raph I of the written he raised an alternative plea, namely, beneflts should be able to E.t.is{y the against hin. staLetrent of defence thaL his terminaldefendant r s c Iaims

(b) In para6raph 9 of the written Statement of Defence the defendant argues that the outsNandi.ng loan between hi.m and Stanbic Bank is a custo&er to BaDk relationship i;o which tbe plaintiff coopany is nob a party "and thus the said noDies are not due to the plaintiff".

The aboye two defences nerit considerabion and I will return to then shortly.

After putting the defence, the defendant apparently disappeared fron the Bcene, to the extent that Court had to giant an order for subetituted wbich wae effected by publication in the print nedia.

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The defendant never responded to the published hearing notice. It was for that reason that the hearing of this case proceeded ex-parte.

The plaintiff called two witnesses who were employed together with the defendant. These adduced a number of exhibits to prove the defendant's indebtedness. I have examined the exhibits and I must say that they do not at all prove all the alleged indebtedness.

In the first place these claims should be for special damages and as acknowledge(by Mr. Serwanga Sengendo, learned Counsel for the plaintiff, in his final submissions, special damages must not only be specially pleaded but they must also be specifically proved. Acknowledging this principle of law, Counsel said:-

> "I am aware that the sum of 3hs. $10,604,529/$ = claimed is by way of special damages. The law on the matter is that special damages must not only be pleaded but must be strictly proved. In this case, however, the defendant merely put up a general denial. It has been held in the case of TALITUKA $-vs-$ NAKENDO (1979)H. C. B. 275 that a bare denial is not a sufficient defence to the claim. Secondly, the evidence of PW.1 and PW.2 was incontroverted and unchallenged. That being the case, their evidence must be believed".

With due respect to Counsel, the law is that special damages must be specially pleaded, not merely pleaded and that they must be specifically proved. It does not assist the plaintiff to specifically prove damages which were not specially pleaded.

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It is necessary therefore to examine what was pleaded in the plaint with regard to the sum of Shs. 10,604,529 being claimed as special damages. They were pleaded under five sub-heads as follows:-

(a) Balance of the general loan;

(b) Stanbic Bank loan (guaranteed by the plaintiff);

(c) Car Purchase Loan;

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(d) Building Loan; and

(e) Undeducted Graduated Tax Balance.

I will examine evidence regarding them individually.

Pleaded in the plaint are 4 annextures "A", "B", "G" and $"C_{2"}.$

Annextures A is a deed of Covenant concluded by the defendant with the plaintiff regarding a loan of shs.2,968,200= for the purpose of buying land.

It is referred to in the evidence of PW.1, Bwabye Margaret as a Building loan. According to her the defendant had paid part of the loan and by the time he left the plaintiff's employment there was remaining a balance of Shs. $1,575,238/-$ . I am prepared to allow the plaintiff's claim to it.

Annexture 'B' to the plaint is a Purchase Loan Application in respect of shs. 10,000,000/ $=$ . The terms of the loan were that it was repayable in 60 months at a monthly instalment of shs. $166, 667/=$ .

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According to the evidence there was a balance of shs.8,999,998to be cleared when in April 1995 the defendant left the employ of the plaintiff. I am also prepared and I allow the claim to it. Annexture "C" is a statement in handwritten form and showing shs. 8,955,427 against the defendant's name. It is called "Stanbic Bank Uganda Limited". No evidence was led about it and in any case no claim was laid on it. Then there is Annexture $°C^2$ which portrays against the defendant two figures as follows:-

- " 50 Stanbic Bank Uganda Ltd Shs. 2,350,050/= - " 51 Stanbic Bank Uganda Ltd Shs. $4,980,000/=$

There was no claim to these and no evidence was led about them. The only claim was to a sum of shs. $1,707,520/$ . as "Stanbic Bank Loan (guaranteed by the plaintiff). Testifying about it PW.1 had this to say:-

"There was a standing Bank Loan of shs. 1,707,520/=. This was the balance left after paying some of it. This is the Bank Statement. The statement does not show any relatioship between this money and the defendant. But to be fair to the plaintiff, Exhibit P.3 which was a letter of the defendant's acknowledgement of his indebtedness addressed states:-

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"outstandings:-

- Stanbic Bank Loan Shs. 1,707,459".

He stated that this amount would be settled with his savings which included Provident Fund and Home ownership totalling to Shs. 2.686.000/=. I would allow the claim to the sum of Shs. 1,707,454/= and not Shs. 1,707,520/= as claimed since exhibit $P.3$ was adduced by the plaintiff.

What remains is the two items of Car loan Balance of shs. $420,000/$ and Undeducted Graduated Tax shs. $40,000/$ . Having allowed a sum of shs. $8,999,998/=$ as a balance on the Car loan as evidence by Annexture 'B' to the plaint, I do not think that it would be proper to accept that there was another Car loan whereof the plaintiff claims a balance of Shs. $420,000/$ =. That would amount to holding that the defendant had obtained two Car loans, in which case the plaintiff should be put to strict proof. She has neither adduced the second agreement nor separate instalment payings. Even the defendant in his acknowledgment letter mentions only one Car loan balance of Shs. $8,500,000/=$ . I am afraid I decline to pass the claim to Shs. $420,000/$ for payment. This leaves me with the claim to Shs. $40,000/$ = being undeducted graduated tax.

Like with the claim to Shs. $420,000/$ as Car loan, I am unable to say that there was undeducted graduated tax without and record: about payment by the plaintiff of Graduated tax on behalf of the defendant. The claim to Shs. 40,000/- is therefore disallowed.

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the state of the party and

In the result I summarise below the awards I have made to the plaintiff against the defendant:-

(a) Shs. 1,707,520/= balance on the Stanbic Bank Loan. (b) Shs. 8,999,998/= on the Car purchase loan. (c) Shs. 1,575,238/= Building loan.

The total sum will be paid with interest at Court rate from the date of judgment till payment in full. The defendant will also meet the costs of the suit as will be taxed.

J. H. NTABGORA PRINCIPAL JUDGE Mr. Servanga Singendo for<br>the planning is present. Indonesia $rad<sub>1</sub>$ in BOL n Court 13/2/2001 1

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