Twikiriza v Kyosiimire (Civil Appeal 60 of 2020) [2023] UGHCCD 408 (9 August 2023)

#### THE REPUBLIC OF UGANDA

#### IN THE HIGH COURT OF UGANDA AT KAMPALA

## (CIVIL DIVISION)

## **CIVIL APPEAL NO. 60 OF 2020**

(Arising From Mengo Civil Suit No. 445 Of 2018)

TWIKIRIZA SANDRA ============================ APPELLANT

VERSUS

MRS KYOSIIMIRE JACQUELINE ================== RESPONDENT

# **BEFORE HON. JUSTICE EMMANUEL BAGUMA**

## **JUDGMENT.**

#### **Background.**

The Appellant/Defendant at hearing raised two preliminary points of law in civil suit No. 445 of 2018 to the effect that the plaint did not disclose a cause of action and that the contract/agreement was not reduced into writing which offends section 10(5) of the Contracts Act. The trial Magistrate HW Mushabe Alex Karocho dismissed the objections. The appellant/defendant being dissatisfied with the ruling and orders of the trial court appealed to this court.

## **Grounds of appeal.**

- *1. The learned trial Magistrate erred in law and fact in holding that the plaint disclosed a cause of action whereas not.* - *2. The learned trial Magistrate erred in law by overruling the defendant/appellant's preliminary objection that the contract exceeding 25 currency points offended section 10(5) of the Contract Act.* - *3. The learned trial Magistrate erred in law in holding that the fact that there is no sanction provided for in the law, it implies that the same cannot be enforced as written down in the law.*

#### **Representation.**

Mr. Thomas Oesan of Mubiru-Musoke & Co Advocates represented the appellant while Mr. Opio Moses of M/s Sekabanja & Co. Advocates represented the Respondent.

# **Duty of first Appellant Court**.

The duty of the first appellate court was stated in the case of **Kifamunte Henry Vs Uganda SC, (Cr) Appeal No. 10 of 2007,** where it was held that;

*''…the first appellate court has a duty to review the evidence of the case, to reconsider the materials before the trial judge and makeup its own mind not disregarding the judgment appealed from but carefully weighing and considering it…''*

This Court therefore has a duty to re-evaluate the evidence to avoid a miscarriage of justice as it mindfully arrives at its own conclusion. I will therefore bear these principles in mind as I resolve the grounds of appeal in this case.

I have very carefully considered the submissions of both parties and taken into account the same while writing this judgment. I will now make the following remarks and findings based on ground of appeal.

## **Ground one.**

*The learned trial Magistrate erred in law and fact in holding that the plaint disclosed a cause of action whereas not.*

**Order 7 rule 1 (e) of the CPR** states that a plaint must state facts that disclose a cause of action and when it arose.

Under **Order 7 rule 11 (a) of the Civil Procedure Rules** provides that a plaint which does not disclose a cause of action must be rejected.

A cause of action was defined in the case of *Auto Garage versus Motokov CA No. 22 of 1971* that;-

- *1. The plaintiff enjoyed a right* - *2. The right was violated* - *3. The Defendant is responsible for that mischief* - *4. The defendant is liable*

In my view, it is settled law that the question as to whether or not the plaint discloses a cause of action must be determined upon perusal of the plaint alone together with anything attached as to form part of it and upon the assumption that any express or implied allegations of fact in it is true. See: *Attorney General Vs oluoch [1972] EA 392* and *Jeraj Shariff & Co. Vs Chotal Fancy Stores [1960] EA 374, 375.*

In the instant case, paragraph 4(a) of the plaint shows that the plaintiff seeks to recover 26,000,000/= (Twenty Six millions Shillings) from the defendant which she allegedly advanced to her as a friendly loan but the Appellant/Defendant refused to pay back the same. In my view the plaintiff enjoyed a right over the claim of 26,000,000/= and the same was violated when the defendant allegedly refused to pay back.

It is my finding that the trial Magistrate was accordingly right to dismiss that objection and I see no reason to fault the trial magistrate.

Ground one of the appeal fails.

# **Ground 2 and 3**

*The learned trial Magistrate erred in law by overruling the defendant/appellant's preliminary objection that the contract exceeding 25 currency points offended section 10(5) of the Contract Act.*

*The learned trial Magistrate erred in law in holding that the fact that there is no sanction provided for in the law, it implies that the same cannot be enforced as written down in the law.*

In the case of **Oryem David Versus Omony Phillip HCT Civil Appeal No. 100 of 2018** it was held that;

*"It is a doctrine of equity that a contract required to be evidenced in writing will still be enforceable even if it is not so evidenced provided that one of the parties does certain acts by which the contract is partly performed. Under that principle of equity, even if a contract that should be in writing under section 10 (5) of The Contracts Act, 7 of 2010 is not in writing, that does not eliminate the possibility of its enforceability. Performance can also satisfy section 10 (5) of The Contracts Act, 7 of 2010. The reason is that, while the provision is designed to avoid fraudulent enforcement of contracts that never took place, evidence that the contract was carried out can also be powerful confirmation of the agreement".*

In the instant case, it is not in dispute that 26,000,000/= (twenty-six million shillings) which is the subject of Civil Suit No. 445 of 2018 was advanced to the Defendant. This fact is admitted in the Appellant's written statement of defence paragraph 7(d).

In my view, the requirements of section 10(5) were complied with and the trial Magistrate was right when he dismissed this point of law.

Ground 2 and 3 of the appeal also fail.

# **Conclusion.**

In the final result, the appeal fails with the following orders.

- 1. The appeal is hereby dismissed. - 2. The ruling and orders of the trial Magistrate on preliminary objections is upheld. - 3. Costs of this appeal are awarded to the Respondent.

Dated, signed, sealed and delivered by email on email on **9 th day of August 2023**

Emmanuel Baguma

Judge.