The Board of Trustees of Nyaruziba SDA Nursery and Primary School v Subagora (Civil Appeal 3 of 2023) [2024] UGHC 1168 (8 November 2024)

#### THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT HOIMA

CIVIL APPEAL NO. 003 OF 2023 (Formerly Masindi Civil Appeal No. 0046 od 2019)

#### THE BOARD OF TRUSTEES OF NYARUZIBA SDA NURSERY & PRIMARY SCHOOL::::::::::::::::::::::::::::::::::: **VERSUS**

SABAGORA DEO:::::::::::::::::::::::::::::::: **EXAMPLE 11: EXAMPLE 11: :::::::::::::::::::::::::::::::::** [Appeal from the judgment and orders of H/W Nivokwizera Emmanuel. Magistrate Grade I, Kibaale Chief Magistrate's Court at Kagadi in Civil Suit No. 29 of 2018, delivered on 26/8/2019]

## BEFORE: HON. JUSTICE BYARUHANGA IESSE RUGYEMA JUDGMENT

#### **Background**

- The Respondent sued the Appellant for recovery of Ugx. $[1]$ $1,836,000/$ = as special damages following breach of contract for supply of maize, general damages, interest and costs of the suit. - It was the Respondent's case that on the $14/2/2018$ , he sold to the $[2]$ Appellant 2 tons and 40kgs of maize on credit at a cost of $900/$ = per kg all worth Ugx. 1,836,000/ $=$ payable within a period of one month ending on $15/3/2018$ . The Respondent on several occasions approached the Appellant offices for the money when the payments became due but was directed to the $2^{nd}$ Defendant. **Byaruhanga Victor** who signed the Contract document committing himself on behalf of the school that he was the one to clear the debt. - The Respondent contended that the transaction for the sale of $[3]$ maize to the Appellant was made by the $2^{nd}$ Defendant. **Byaruhanga Victor** on behalf of the Appellant as per the commitment and at no material time was the contract concluded for the benefit of the said **Byaruhanga Victor**. That the Appellant

$\mathbf{1}$

never disclosed to him the internal management of the Appellant school, i.e. the procurement process.

- The Appellant denied the Respondent's claims and averred that the $[4]$ contract relied on by the Respondent was entered into by the $2^{nd}$ Defendant Byaruhanga Victor, the then Head Teacher of the Appellant school who was not supposed to do so. That it was only the procurement officer who had powers to enter into such a contract. - The Appellant contended that at the time of the contract, the $[5]$ Respondent had prior knowledge that the said Byaruhanga Victor did not have powers to contract on behalf of the school. - The trial Magistrate upon evaluation of the evidence as presented $[6]$ by the parties before him found that there was a binding contract of sale of maize between the Respondent on one hand and the Appellant and the $2^{nd}$ Defendant Byaruhanga Victor, the then Headmaster of the Appellant school. He entered judgment in favour of the Respondent against the Appellant and the said **Byaruhanga Victor,** holding the Appellant vicariously liable of the actions of the said Byaruhanga Victor. He ordered the Appellant and Byaruhanga Victor who was also liable in his individual capacity, to pay **Ugx. 1,836,000/=** the purchase price and $1m/=$ as general damages. - The Appellant was dissatisfied with the judgment and orders of $[7]$ the trial Magistrate and lodged the present appeal on the following grounds: - That the learned trial Magistrate erred in law and fact when he $1.$ relied on Exh. P.1, an agreement dated 14/2/2018 which was not in the language of court. - That the learned trial Magistrate erred in law and fact when he $2.$ failed to find that the agreement between the Plaintiff [Respondent] and 1<sup>st</sup> Defendant [Appellant] was void for lack of consideration.

- That the learned trial Magistrate erred in law and fact when he $3.$ failed to properly evaluate the evidence on record and thereby arrived at a wrong conclusion that the appellant owed the Respondent Ugx. 1,836,000/ $=$ . - That the learned trial Magistrate erred in law and fact when he $4.$ condemned the Appellant to costs.

# **Counsel legal representation**

The Appellant was represented by Mr. Simon Kasangaki of $M/s$ $[8]$ Kasangaki & Co. Advocates, Masindi, while the Respondent was represented by Mr. Isaac Mwebaze of M/s Aequitas Advocates, Both Counsel filed their respective submissions for Kampala. consideration in the determination of this appeal.

## Duty of the 1<sup>st</sup> Appellant Court

- [9] As a first appellate court, this court is duty bound to review the record of evidence for itself in order to determine whether the decision of the trial court should stand without necessarily interfering with the discretion of the trial court unless satisfied that the trial court has misdirected itself and thus arrived at a wrong decision, Stewards of Gospel Talents Ltd vs Nelson Onyango H. C. C. A. No. 14/2008 and NIC vs Mugenyi [1987] HCB 28. - [10] This court shall rehear the case on appeal by considering all evidence before the trial court and come up with its own decision. - Ground 1: The learned trial Magistrate erred in law and fact when he relied on Exh. P.1, an agreement dated the $14/2/2018$ which was not in the language of court. - [11] Relying on S.88 CPA, Counsel for the Appellant submitted that Exh. P.1 dated the $14/2/2018$ executed by the 2<sup>nd</sup> Defendant

Byaruhanga Victor, the Headmaster of the Appellant school wherein he committed to pay the Respondent was not in the language of court and the same was never translated into English, the language of court. That it could not be relied upon by court and could not establish liability for any party to these proceedings.

- [12] Counsel contended that despite this irregularity, the trial Magistrate erred in law and fact when he strongly based on the said document as an exhibit to fault the Appellant as being vicariously liable to pay the debt incurred to the Respondents by **Byaruhanga** Victor. - [13] Counsel for the Respondent on the other hand submitted that the Appellant's Counsel was submitting from his personal facts and not from the certified record of proceedings of the trial court because the Appellant did not request and cause for the record of proceedings of the trial court to be availed to the appellate court. - [14] This court is however not able to understand the complaint of Counsel for the Respondent because the record of the lower court is available. He has not complained that he was never served with the record of the proceedings and judgment of the lower court. Both Counsel have filed their respective submissions based on the record of the lower court. In the premises, I find that none of the parties is to be allowed to claim that he/she has been prejudiced or that there has occurred any miscarriage of justice. - [15] As regards the omission and failure by the Respondent to have the Contract document (P. exh.1) translated into the language of court, English, Counsel for the Respondent submitted that part of the document was in English and another part in Runyakitara and that in court, the said agreement was translated by the court translator, Mulindwa Joseph thus, no injustice was occasioned to the Appellant by virtue of the said translation. - [16] On perusal of the Contract document (P. Exh.1), I find that though its heading/title is in English, "Ref: COMMITMENT TO PAY SHS.

$1,836,000/$ =" the entire body of the document is not in the language of court. This court which is mandated to rehear the case on appeal by reconsidering all the evidence before the trial court and come up with its own decision is not able to do so for the parties who are entitled to obtain from the appellate court its own decision on issues of fact as well as of law because it cannot comprehend the language used in the document, see Fr. Narsensio Begumisa & ors vs Erias Tibebaga S. C. C. A. No. 17 of 2002.

[17] Under $S.88(1)$ & (2) CPA, the language of all court shall be in English and evidence in all courts shall be recorded in English. In Assumpta Sebunya vs Kyomukama James, H. C. Misc. Cause No. 55 of 2012, it was held that:

> "Section 88 of the CPA is very clear. That the document which is not translated into the language of the court which is English cannot be admitted in evidence".

See also Katunda vs Atuhaire H. C. M. A. No. 185 of 2004.

- [18] In the instant case, I find that the contract document (P. Exh.1) is not in the language of court, English. Though its head/title is in English, this court is not able, because of its language which is not English to know, the subject matter of the contract. - [19] The trial Magistrate at **P.5 of the judgment** status thus:

"I have observed that PEX 1 which has a heading "commitment to pay shs. 1,836,000/= was written in No translation copy was made available to vernacular. court. With the help of the court translator Mulindwa Joseph I have established that it means; we of the school mentioned above promise to pay money mention Mr. Sebagira Deo gave us two tones and $40$ kgs each at (sic) and we shall pay him in one month on $15/03/2018$ ".

[20] The above observation of the trial Magistrate is not borne by the proceedings. It is not clear and there is no evidence that the translation of the Contract document was done within court by the court translator, **Mulindwa Joseph** for the benefit of the parties and their respective Counsel as Counsel for the Respondent argued. Secondly, it is clear from the purported translation as obtained by the trial Magistrate that the subject matter for which the money was to be paid for was never disclosed thus it is more as **Asiimwe Nicolas** (PW2) conceded during crosslikely examination at **P.9 of the typed proceedings**, the agreement was for lending money. He stated that the $2^{nd}$ Defendant Byaruhanga Victor told him that the content of the agreement could have been for lending money. In the premises, I find that there is no evidence that the Respondent supplied the Appellant school maize.

[21] In conclusion, I find that the Contract document, **P. Exh.1** was neither in the language of court nor translated in English, the language of court and therefore, it was inadmissible in evidence. The document (P. Exh.1) was irregularly received in evidence as an exhibit and relied upon. The trial Magistrate erred in law and fact when he strongly relied on **P. Exh.1**, an agreement dated the $14/2/2018$ which was not in the language of court. This ground of appeal accordingly succeeds.

### Ground 2: The learned trial Magistrate erred in law and fact when he failed to find that the agreement between the Plaintiff [Respondent] and the 1<sup>st</sup> Defendant [Appellant] was void for lack of consideration.

[22] As already found by this court, the Contract document (P. Exh.1) having been found not to be in the court language, this court is not able to tell, though consideration of the Contract is indicated as shs. 1,836,000/=, the subject matter for which this money was to be paid for, was not disclosed. Kaahwa Bright Amos (DW1), a pastor at the Appellant school, testified that he never knew anything about the transaction. The alleged subject matter of the contract i.e. maize never ended up in the Appellant's school and the headmaster who committed himself to pay, had no power to buy anything for the school save through the procurement process by the procurement officer of the Appellant school. The burden was on the Respondent to prove documentary or otherwise that he supplied the Appellant with maize worth ugx. $1,836,000/=$ on credit which onus he failed to discharge.

- [23] In the absence of evidence of the subject matter of the contract it follows that even consideration is accordingly not proved, since consideration is for the subject matter of the contract. This ground of appeal accordingly succeeds. - **Grounds 3 & 4:** - The learned trial Magistrate erred in law and fact when he failed to properly evaluate the evidence on record and thereby arrived at a wrong conclusion that the Appellant owed the Respondent ugx. 1,836,000/=. - The learned trial Magistrate erred in law and fact when he condemned the Appellant to costs. - [24] In the instant case, in the absence of evidence that the Respondent supplied maize to the Appellant school as already found by this court, it follows that the Appellant cannot be held liable to pay the alleged Ugx. 1,836,000/ $=$ to the Respondent. These 2 grounds of appeal accordingly succeed. - $[25]$ As a result of the above, the appeal is found to bear merit. It accordingly succeeds. The trial Magistrate's judgment is quashed and the orders set aside with costs to the Appellant both in the lower court and on appeal.

Dated at Hoima this $8^{th}$ day of November, 2024.

**Byaruhanga Jesse Rugyema IUDGE**