Fraud

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.

Theft

FINAL SUBMISSIONS OF THE ACCUSED

The accused person X is charged with the offence of theft contrary to Sections 254(1) and 261 of the Penal Code Act Cap.120. It was alleged that the accused during the year of 2005 at Kitete village in the Mukono district stole two television sets, two big radios, 23 boxes of tiles, a fridge, a DVD player, two pairs of shoes, a suit case of clothes and academic papers in the names of Y all valued at approximately UGX. 6,730,000= (Six Million Seven Hundred Thirty Thousand Shillings only) being the property of Y.
The prosecution brought four (4) witnesses to prove their case while the defense brought two (2) witnesses.
PW1: Y who is the complainant in this matter told this Honourable Court that the accused person was his wife. He stated that he left for UK in 2003 living the accused in a rented house. He further stated that while in UK he sent to the accused a generator, a radio, and other things. He further stated that when he came back he found that the accused had sold two houses and went away with everything that was in the house. That among the properties were a generator that he had bought at 100 pounds, clothes, 7 suits, 2 televisions at 300,000 /= each, 2 radios at 100 pounds each, a fridge at 450,000/=. He said that he contacted the accused to bring the things but she refused and also the police called her to bring them and she refused. That he then asked her to take them to the heir (accused’s father) but she only took there an old bag, shoes, jeans and certificates. That those were brought to police but the rest of the properties were not brought. That he was affected because he has no job.
During cross-examination, the witness told Court that he returned from UK on the 11th day of April, 2015. He told Court that he bought the televisions here in Uganda and the radios and the generator from UK. He told the Honourable Court that he sent the radios through sky transporters but he had not come with the sending documents. He also stated that he had sent the generator with the same agent but would not remember the year he sent them. That he sent the suits in 2008 because he had bought them from UK. When asked as to whether Sky Transporters confirmed to him as to the delivery of the properties he said they never confirmed. When asked whether those were the only properties that the accused had taken he said that he had ignored the rest and had nothing to do with them.
PW2: Z who said that is a friend of PW1-the complainant told this Honourable Court that he knows the accused as the wife of the complainant. He further stated that the complainant while in the UK sent to the accused money to build a house and the complainant subsequently bought properties like chairs and a generator. He further stated that he heard from Y that the accused had sold everything. That he went to the house to confirm what Y was saying and found that new people were occupying the house. He further stated that the properties have never been found and that it is the complainant who reported the matter.
During cross-examination PW 2 stated that he has known the complainant since childhood. He further stated that he is sure the accused is the complainant’s wife though he does not remember the year of their marriage. When asked about the type of marriage of the complainant and the accused, PW 2 said that the two are customarily married. He further stated that he does not know whether they have a marriage certificate. When asked about the stolen property, PW 2 stated that amongst them was a generator, clothes but said he did know the exact number, money from the bank amounting to 12 million, land and a house. He further stated that the properties were bought by the complainant in 2009. The witness further stated that the generator was sent from UK by the complainant and it was received by the accused. He further stated that he first found the generator with the accused and he did not know how it was sent and received. PW 2 further stated that he only got to know about the stolen property from the complainant.
PW3: XX who said that he is a biological son of the complainant and a student staying at Kamwokya. He further stated that he knows the accused as his step mother. That in 2005 he was staying with the accused in Luganja. That they later shifted to Mukono. When asked about the stolen property, the witness stated that amongst them were 2 television sets, a fridge, Honda generator, Vacuum cleaner, 4 big radios, sofa chairs, beds, clothes for the complainant, 3 big bags and suit cases, 1 DVD player and a DHD. He further stated that the properties got lost in 2010 when he had just returned from school and that the accused disappeared with them. He stated that he was informed by his cousin like three months after while at school that the properties had been stolen. When asked when and why he left home he stated that he left in 2010 after having a disagreement with the accused. He further stated that the properties got lost while the father was not around.
During cross-examination PW 3 told this Honourable Court that he was born in 1996 and the complainant went to UK in 2003 when he was in primary three. He also stated that he started living with the accused in 2000 when he was 4 years and that he left her in 2010. He further stated that he went back to the house in 2012 around January and February and indeed found that the properties were missing. He said that a few of the properties were sent by PW1 from Uk, like the Generator, Vacuum cleaner, cloths and 3 radios and 2 DVD players. The witness said that they were sent through a shipping Company called SALABED and they were shipped at different intervals by different shipping companies. He also said the accused would receive them and also show him delivery notes by SALABED.
PW4- DAIP YY stated that she was allocated a file of theft where PW1 reported the accused saying that she stole household properties like; Academic papers, 2 TVS, 2 Radios, 2 pairs of shoes, DVD player belonging to PW1. That the theft happened when the complainant was in the UK. That PW1 used to send some properties and would send her money to buy other properties. That PW1 returned from UK and did not find the property nor the accused. That when PW4 summoned the accused, she came and said it was true she sold the radio and the TV to look after the family. For the properties she accepted, she called her brother, a one ZZ to bring them to police and they were brought. She denied having taken the fridge. In cross examination, PW4 stated that the complainant told her that he would send money to the accused and then the accused would buy the said items. She also stated that the complainant produced receipts showing that the accused was receiving money from him. She showed Court a receipt from Westlink dated 09th June 2006 of XY being the sender and the accused as the recipient. The receipt did not bear the signature of the accused and when asked if she ever got in touch with the company Westlink, the witness said she did not neither did she ever get in touch with XY, the alleged sender of the money.
In her defence, AA- the accused denied ever stealing from the complainant. She stated that the complainant is her former husband and the father to her son. She stated that the only properties the complainant ever sent from UK were sent through some lady in Makindye. They included; cloths for children, his cloths and two radios. That she picked them and started using them. The accused only accepted having sold the radios to get some money for family upkeep.
The accused also stated that the properties that were exhibited in court were left with her by the complainant.
DW2- BB stated that he is a brother to the accused and knew the complainant as a husband of the accused. He said that he does not know whether the accused stole any properties of the complainant but he had come to inform court about things the accused brought to him. They included a suitcase with documents, a bag of cloths and a pair of shoes. The complainant is the one that demanded that these things be brought to me and he would pick them. When they brought them, he came and checked them and left them again until they were taken to the police.

The Evidence Act Cap.6 under Section 101(1) and (2) places the burden of proving whether certain facts a party is alleging exist on the person stating them.
The same position is further stated in Woolmington V. DPP (1935) AC. 462, that the prosecution has the burden to prove its case beyond reasonable doubt. 

In the case of Uganda V Ndyabahika Collins Somani & AnorHCT-04-CR-SC-272-2013, where the accused were convicted for theft of a motor vehicle, it was stated that in a case of theft the prosecution has the burden to prove beyond reasonable doubt that the following ingredients existed.
That there was theft of property capable of being stolen.
That the property was fraudulently taken away by the culprit.
That the intention was to permanently deprive the owner of its use.
That it is the accused who carried out the theft.
These are the same ingredients that the prosecution has to prove beyond reasonable doubt against the accused if she is to be found guilty of the charge at hand.
I will now go to evaluation of the evidence on record and deal with the ingredients one at a time.
That there was theft of property capable of being stolen.
The charge sheet showed that the accused was charged with theft of two television sets,two big radios, 23 boxes of tiles, a fridge, a DVD player, two pairs of shoes, a suit case of clothes and academic papers in the names of Bizimana Benon all valued at approximately UGX. 6,730,000= (Six Million Seven Hundred Thirty Thousand Shillings only) being the property of Y.
In his testimony, the complainant only stated a generator that he had bought at 100 pounds, clothes- 7 suits, 2 televisions at 300,000 /= each, 2 radios at 100 pounds each and a fridge at 450,000/=.
Comparing the items in the charge sheet and those mentioned by the accused in court, a generator was not in the charge sheet but was only introduced in Court by the complainant. The complainant did not make a mention of the 23 boxes of tiles, a DVD player, two pairs of shoes and a suit case. Indeed during cross examination, this was brought to the complainant and he said he ignored the rest of the items and had nothing to do with them.

In our opinion, this leaves us with a defective Charge sheet which brings a charge of theft of items that the complainant knows not leaving out those that he complains about. It is our considered opinion that the prosecution should have amended this charge which they never did. But without prejudice to the above, another question arises as to the existence of these items. The prosecution did not prove at all that these items ever existed and that the complainant owned them and they were eventually stolen from him as alleged.

The prosecution never tendered any receipt or any document proving that these items ever existed in the ownership of the complainant- PW1 and indeed, PW1 was asked about these documents during cross examination and he said he had left the receipts with the accused yet in his testimony, he stated that these items were shipped meaning he bought them from abroad where he was. At least he would produce the shipping documents.

The accused on the other hand denied ever stealing those properties. She told this Court that she sold the 2 radios to get money for family upkeep and she further stated that she had no knowledge of the rest of the items apart from the ones that were taken to the police and eventually brought to court. She had not stolen them because it is the complainant who left them in her custody.

The testimony of PW2 and PW3 is evidence that cannot be relied on. It was only hearsay having clearly stated that they received the information from the complainant and a cousin respectively. The prosecution failed to prove this ingredient beyond reasonable doubt because there could not be theft of items that did not/ were not in existence.

That the property was fraudulently taken away by the culprit.
That the intention was to permanently deprive the owner of its use.
The 2nd and 3rd ingredients follow automatically the first ingredient. Failure of the prosecution to prove the 1st ingredient beyond reasonable doubt in our opinion fails the 2nd and 3rd. The culprit, in this case the accused could not fraudulently take away non-existent property and could not have an intention of permanently depriving the complainant of what he actually did not have.
So, the prosecution also failed to prove these two ingredients of the offence of theft beyond reasonable doubt.

That it is the accused who carried out the theft.
We have a lot of un cleared doubt as to whether these properties ever existed. The accused clearly told this Honourable court that the complainant had never bought a TV, had never bought tiles or even a fridge. For the properties he left her with, they were taken to DW2 as he requested and he is the one who refused to pick them until they were brought to police. The accused had not stolen them.

No eye witness was paraded before court to prove that he/ she saw the accused stealing any of the said items or saw her taking them away for sale or anything.
The accused could not have stolen/ carried out a theft of items that the complainant never had or owned.
This ingredient in our opinion was also not proved beyond reasonable doubt by the prosecution.

It seems to us that the complainant went to UK and wasted time and came back a frustrated man in a failed love affair with the accused and is now levelling baseless and wrong accusations against his former lover/ wife.
They may have some domestic issues to settle but not criminal matter to deal with.

In the premises, we pray that this Honourable Court finds that the prosecution did not prove this case beyond reasonable doubt and further pray the this Honourable Court finds that the accused is not guilty of the offence of theft and accordingly acquit her of the same charge.