FINAL SUBMISSIONS OF THE PLAINTIFF
The facts leading to the above civil suit briefly state that;
On the 26th day of June 2016, the plaintiff purchased a kibanja measuring 50 x 50 feet from a one X. On the 04th day of June 2017, the plaintiff on the strength of the defendant’s word that Mr. X (the defendant’s father) was unwell and unavailable but needed money and was selling the adjacent plot, entered into a second agreement for a 50 by 100 feet plot.
In the agreement of the 04th day of June 2017, the defendant took the agreement allegedly to Mr. X to sign it and then returned it and he was paid UGX. 15.000.000= which he acknowledged receipt of on the same agreement.
On the 06th day of October 2017 the plaintiff returned to buy another portion from the defendant’s father who assured him that he had never instructed his son the defendant to sell the kibanja and the defendant has never remitted any money to him.
The defendant was present on the 06th day of October 2017 and he confessed to have sold the plot to the plaintiff at UGX. 15.000.000= (Fifteen million shillings) and also confessed that he did not have the father’s consent nor did he remit the UGX. 15.000.000= to his father Mr. X.
Hearing/Pleadings
The plaintiff filed a suit against the defendant for general damages for fraud, recovery of UGX. 15.000.000= (Fifteen million shillings only), interest on the UGX. 15.000.000= at the rate of 10% per month, Costs and any other relief Court deems fit. However, the defendant did not file his written statement of defense and the suit was heard ex parte.
At trial the plaintiff produced 2 witnesses to support his suit whose evidence in chief was admitted by way of witness statements.
The legal issues involved include
Whether or not the defendant’s act of selling the suit kibanja to the plaintiff was fraudulent in nature.
Whether the plaintiff is entitled to remedies sought.
Resolution of issues
Issue 1: Whether or not the defendant’s act of selling the suit kibanja to the plaintiff was fraudulent.
In Fredrick Zaabwe V Orient Bank & 5 Ors SCCA No. 04 of 2006, fraud was defined to include anything calculated to deceive whether by a single act or combination of acts or suppression of truth or suggestion of what is false, whether it is by direct falsehood or innuendo by speech or silence, word of mouth or look or gesture.
Similarly, the Black's Law Dictionary (8th edition. 2004) at Page 1950 defines fraud as a knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment.
In J. W. Kazoora V Rukuba Civil Appeal No. 13 of 1992, Oder, JSC held that allegations of fraud must be specifically pleaded and proved. The degree of proof of fraud required is one of strict proof, but not amounting to one beyond reasonable doubt.
It is with no doubt that plaintiff has strictly proved fraud as per the degree required by this Honourable Court. First the plaintiff filed exhibit PE1 which is an agreement indicating that the defendant’s father had sold to him a plot measuring 50 by 50 feet. Similarly PE2 an agreement for the sale of a kibanja measuring 50 by 100 feet on which the defendant forged his father’s signature to misrepresent the plaintiff was admitted.
To further prove fraud, the plaintiff produced 2 witnesses PW1 and PW2 whose witness statements admitted by this Honourable Court as their examination in chief clearly show that the defendant fraudulently sold his father’s land to the plaintiff. In paragraphs 4 – 7 of her witness statement PW1 states that the defendant received money amounting to UGX. 15.000.000= which he claimed was receiving on behalf of his sick father for the sale of the said kibanja. However the father a one X later on denied having sold that kibanja or even worse did not receive any of the said money. He intimated that his signature had been forged by the defendant.
Furthermore PW2 in his witness statement to be particular reference should be made to paragraphs 4 – 7 where he corroborates the evidence of PW1 to prove that indeed the defendant received UGX. 15.000.000=. It is also with no doubt that on 06th day of October 2017 in the presence of a one X (father to the defendant), PW1, PW2 and the plaintiff, the defendant confessed to having fraudulently sold his father’s land receiving monies amounting to UGX. 15.000.000= from the plaintiff.
To me the defendant’s act of misrepresenting himself as having authorization from his father a one X to sale the kibanja measuring 50 by 100 feet and also receive money in the tunes of UGX. 15.000.000= (Fifteen million shillings) amounts to fraud as above submitted. In the premises it’s the submission of the plaintiff that this Honourable Court allows issue no. 1 against the defendant.
In resolving issue 2, whether the plaintiff is entitled to the remedies sought.
General damages for fraud;
Order VII rule 7, of the Civil Procedure Rules SI 71-1, states that general damages may be awarded by court where court finds it appropriate to do so even where a party has not specifically stated them as a relief sought.
Ugandan case law has also gone ahead to provide for general damages that may be awarded to litigants as was seen in the suit of Crown Beverages Ltd. vs. Ssendi Edward, SCCA No. 2005; where Ssendi consumed a Pepsi soda which had fallen products of a snail that affected his reproductive system. In the locus clasicus case it was stated that the amount to be awarded as general damages is a matter of discretion of the trial court which must be exercised judicially.
Similarly the Black's Law Dictionary (8th edition. 2004) at Page 1174 defines general damages as damages that the law presumes follow from the type of wrong complained of also known as compensatory damages for harm that so frequently results from the tort for which a party has sued that the harm is reasonably expected and need not be alleged or proved
It should not go without cognizance of this Honourable Court that the defendant without reasonable cause duped, misrepresented and worse still defrauded the plaintiff of UGX. 15.000.000= (Fifteen million shillings) causing him great financial loss and trauma for which he claims general damages.
Special damages;
It should be noted that Ugandan Courts have gone ahead to award special damages to litigants and these have to be specifically pleaded and proved. The Plaintiff in his Plaint prayed for the recovery of 15.000.000= (Fifteen million shillings) and also in the proceedings went ahead to adduce evidence to that effect. In the case of KIBIMBA RICE LTD VS UMAR SALIM, S.C.C.A NO. 17 OF 1992, it was held that; “a plaintiff who suffers damage due to the wrongful act of the defendant must be put in the position he or she would have been if she or he had not suffered the wrong”.
The Black's Law Dictionary (8th edition. 2004) at Page 1179 defines special damages as damages that are alleged to have been sustained in the circumstances of a particular wrong. It goes on to state that for these to be awardable, special damages must be specifically claimed and proved.
As per the above jurisprudence, it would only be just if the plaintiff is put back in the previous position he was in before executing the agreement admitted by this Honourable Court as exhibit PE2. We therefore pray that Court awards special damages of 15.000.000= (Fifteen million shillings) money the defendant fraudulently took from the plaintiff on the 04th day of June, 2017.
Interest;
In his pleadings the plaintiff prayed for interest of 10% per month on the principal sum of 15.000.000= (Fifteen million shillings) for the time the defendant has been fraudulently holding onto it. There is no dispute that the defendant indeed took this money. In my opinion this brings in the aspect of interest and the question is would the 15.000.000= (Fifteen million shillings) that the defendant fraudulently took have accumulated interest if invested by the plaintiff elsewhere and the answer is in affirmative.
The aspect of interest has not only been prayed for by litigants but also courts have gone ahead to award them on several occasions. In the Ugandan jurisprudence we have an authority that was recently decided, in Rev. Dr. Grace Patrick Karamura Vs. Matsiko Semu David & Anor HCCS No. 566 of 2014 (Commercial Division Archives); decided by Justice of the High Court Hon. Mr. B. Kainamura where the plaintiff sued the defendants for a principal sum of 370,763,200 and interest for the period the defendants were holding onto his money. In his judgment the Honourable Justice had this to say in paragraph 15 of his decision and I will quote him verbatim. “The purpose for an award of interest is restituo integrum which means that the plaintiff may be restored as nearly as possible to a position he would have been in had the injury not occurred.”
Justice B. Kainamura went ahead to refer to the authority of Riches V Westminster Bank Ltd [1947] 1 ALLER 469 HL at page 472; in this authority Lord Wright explained the essence of an interest award as:
“…payment which becomes due because the creditor has not had his money at the due date. It may be regarded either as representing the profit he might have made if he had had the use of the money, or, conversely, the loss he suffered because he had not that use. The general idea is that he is entitled to compensation for the deprivation…”
Similarly, in the instant suit payment/refund of the 15.000.000= (Fifteen million shillings) became due on the 04th day of June 2017 when the defendant fraudulently sold his father’s kibanja and took the plaintiff’s money. This is conduct that cannot go without Court awarding interest, the defendant has been fraudulently holding onto the plaintiff’s money for close to a year now causing him financial loss and inconvenience. As a matter of fact, if invested elsewhere this is money that should have yielded interest therefore the plaintiff prays for Court to award him interest as prayed for.
Our humble prayer to this Honorable Court is for Orders that:
(a) The defendant pays to the plaintiff general damages for fraud
(b) The defendant refunds UGX. 15.000.000= (Fifteen Million Shillings) as special damages that he fraudulently took from the plaintiff.
(c) The defendant pays interest on (b) above at the rate of 10% per month from the date he received the money.
(d) The defendant pays costs of the suit
(e) Any after relief that the Honourable Court deems fit.