Professional Documents
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Haruna Sentongo Vs Orient Bank LTD
Haruna Sentongo Vs Orient Bank LTD
Contract- Validity of a contract- elements for a contract to be valid and legally enforceable- capacity
to contract; intention to contract; consensus and idem; valuable consideration; legality of purpose;
and sufficient certainty of terms.
Bank of Uganda Financial Consumer Protection Guidelines 2011- do not have the force of law-
consequently their breach is not a basis of a cause of action.
Doctrine of approbation and reprobation - estoppes one from recognising that a transaction is valid
and thereby obtaining some advantage to which he could only be entitled on the footing that it is valid,
and then turn around and say it is void for the purpose of securing some other advantage.
Breach of contract- definition of breach of contract-happens when a party abdicates on its obligations
under a contract by refusing or refraining from performing its part of the contract. It may also be so,
when a party prevents the other party from performing its part of the contract.
Pleadings- Order 6 rule 3 of the Civil Procedure Rules S.1 71-1 in all cases in which the party pleading
relies on any misrepresentation, fraud, breach of trust, wilful default or undue influence, and in all
other cases in which particulars may be necessary, the particulars with dates shall be stated in the
pleadings.
Fraud- Fraud must be specifically pleaded in the pleadings and strictly proved, particulars of fraud
must be clearly itemized in the pleadings, and the standard of proof of fraud is beyond the ordinary
balance of probabilities in ordinary other civil actions.
Unjust enrichment -the requirements in claim for one- that the defendant has been enriched by the
receipt of a benefit, that this enrichment is at the expense of the Plaintiff and that the retention of the
enrichment is unjust.
CASE REFERENCE:
Whether the defendant in HCCS No. 464/2018 breached its statutory and fiduciary
duties to the plaintiff arising from a Banker - customer relationship?
Whether the defendant in HCCS No. 464/2018 was fraudulent in its dealings and
transactions with the plaintiff?
Whether the plaintiff in HCCS No. 464/2018 is entitled to the reliefs sought?
Whether the plaintiff in HCCS No. 464/2018 borrowed and was advanced a facility
worth USD. 3,000,000 by the defendant therein.
Whether the plaintiff in HCCS No. 036/2019 is entitled to the remedies sought in
HCCS No. 036/2019.
CASE REFERENCE:
Section 10 (1) of the Contracts Act, 2010 defines a contract as an agreement made
with the free consent of parties with capacity to contract, for a lawful consideration
and with a lawful object, with the intention to be legally bound.
Court further defines a contract as; "in law, when we talk of a contract, we mean an
agreement enforceable at law. For a contract to be valid and legally enforceable
there must be: capacity to contract; intention to contract; consensus and idem;
valuable consideration; legality of purpose; and sufficient certainty of terms. If in a
given transaction any of them is missing, it could as well be called something other
than a contract". Consequently, the validity of a contract may only be impeached
where there is fraud, misrepresentation, duress or undue influence or unfair and
unconscionable terms. In which case, the contract can then possibly be found to
be null and void.
Court discerned from the examination of all the offer letters executed by the
plaintiff and the defendant and the provisions of the law regulating contracts and
mortgages in Uganda that on diverse dates, the plaintiff applied for and was offered
loan facilities by the defendant. This is evidenced in various request
correspondences from the plaintiff to the defendants vide- D.Ex.,
2,5,7,9,11,12,13,15 and in facility offer letters D.Ex., 3, 6,8,10,14,16 and 21. The
agreements are therefore validly executed by the parties.
Court finds that the contracts between the plaintiff and the defendant are valid and
enforceable under the law. The first limb of Issue No. 1 is accordingly answered in
the affirmative.
Parties to a contract which they have entered voluntarily are bound by its terms
and conditions.
Having consumed the benefits arising from the contract by accepting and taking
the funds, ostensibly after the 30 days had elapsed, the plaintiff cannot now turn
around to say that the contract lapsed. The plaintiff is barred by the doctrine of
approbation and reprobation to now turn around and say that the contract lapsed.
A claim of breach of contract cannot therefore be sustained against the defendant.
The second limb of this issue accordingly is answered in the negative.
Issue No. 2: Whether the defendant in HCCS No.464/2018 breached its statutory and
fiduciary duties to the plaintiff arising from the Banker-customer relationship.
The Bank of Uganda Financial Consumer Protection Guidelines, 2011 do not have
the force of law and consequently their breach is not a basis of a cause of action.
CASE REFERENCE:
In determining whether there was a coercion of will such that there was no true
consent, it is material to enquire whether the person alleged to have been coerced
did or did not protest; whether at the time he was allegedly coerced into making
the contract, he did or did not have an alternative course open to him such as an
adequate legal remedy, whether he was independently advised; whether after
entering he took steps to avoid it.
From the definition, it can be deduced that the "duress" has to be unlawful. What is
unlawful needs further clarification and may depend on the facts of the case. Some
general remarks can however be made. The first conclusion is that lawful force
cannot be actionable as "duress". It is therefore necessary for the applicant relying
on the ground of duress to prove that unlawful pressure was applied on him or her
so as to lose his or her free will.
Threat of the process of court cannot be unlawful pressure and is always exerted
by litigants or potential litigants to threaten anybody they claim is in breach of the
law to comply with their demands or else face the due process of law.
Consequently, it is necessary to establish by evidence that the force or threat of
force or pressure which was applied was unlawful pressure and that as a
consequence thereof, the applicant lost her free will.
CASE REFERENCE:
That the Plaintiff sold his property to avert being embarrassed is remotely material
to the underlying principle reason for which the property was pledged as security
for money borrowed. That a defaulting lender will suffer embarrassment when their
property is lawfully advertised for sale by auction does not vitiate the lender's right
to recover by such auction.
Merely drawing the defaulting borrowers attention to the procedures which will be
taken to realize security through a public auction and identifying a potential buyer
does not in the context of the law nor in the ordinary usage and meaning of the
words amount to undue influence, duress or coercion. Threatening to do a lawful
act does not amount to duress.
Issue No. 3: Whether the defendant in HCCS No.464 of 2018 was fraudulent in its
dealings and transactions with the plaintiff
The allegations of fraud are raised outside the pleadings. This offends the law; O. 6
rr 3 & 7 of the CPRs require that fraud is specifically pleaded and that parties do
not depart from their pleadings. Given the grave nature of fraud as a cause of
action, the essence of providing particulars of the alleged fraud is to enable a
defendant to appropriately prepare their own defence to the allegations by being
accorded adequate notice.
CASE REFERENCE:
Failure to plead fraud would vitiate a plaint where the claim is founded on fraud.
This is not a mere technicality. It is a substantive requirement that a cause of
action be disclosed by the plaint and annextures thereto if any; and the failure to
do so renders the plaint a nullity.
Fraud must be strictly pleaded and proved against the perpetrator. The burden of
pleading and proving fraud lies on the person alleging it. They should prove their
allegations of fraud beyond a mere balance of probabilities required in ordinary
civil cases.
The plaintiff ought to have specifically pleaded the particulars of the alleged fraud
committed by the defendant and subsequently led evidence to particularly prove
this claim. The failure to do so rendered this claim untenable. Even when this
honourable court disregarded this failure and considered the allegation of fraud
based on his submissions and the evidence on record, the plaintiff did not adduce
evidence to the required standard to prove the fraud. Issue No.3 is answered in the
negative.
In a claim for unjust enrichment, the requirements are that the plaintiff is enjoined
to prove; first, that the defendant has been enriched by the receipt of a benefit,
secondly that this enrichment is at the expense of the plaintiff and thirdly that the
retention of the enrichment is unjust.
The interest charged was in accordance with the agreed terms of the facilities. The
defendant was entitled to the recoveries it made and the interest changed.
CASE REFERENCE:
Issue No. 5: Whether the plaintiff in HCCS No.464/2018 is entitled to the reliefs sought
Court has considered the submissions of both parties on this issue and having
determined Issues No. 1, 2, 3, 4, 6 and 7 as it did, it is the finding of this Court that
the Plaintiff is not entitled to any of the remedies sought.
Issue No 6: Whether the plaintiff in HCCS No.464/2018 borrowed and was advanced a
facility worth USD. 3,000,000 by the defendant
The plaintiff in HCCS No.464/2018 did not borrow neither was he advanced the
facility of USD. 3,000,000 by the defendant. There is common ground on this issue
and consequently the issue is answered in the negative.
Issue No. 7: Whether the plaintiff in HCCS No. 464 of 2018 breached the contract
Section 33 (1) of the Contracts Act, 2010 provides that the parties to a contract
shall perform or offer to perform their respective promises, unless the performance
is dispensed with or excused under the Act or any other law. Once a contact is
valid; it creates reciprocal rights and obligations between the parties to it. I think it
is the law that when a document containing contractual terms is signed, then in the
absence of fraud, or misrepresentation the party signing it is bound by its terms.
In the instant case the plaintiff entered several credit facilities contracts with the
defendant bank. The said facilities were entered into with an undertaking that they
shall be repaid by the plaintiff with interest. However, the plaintiff defaulted on this
obligation and is indebted to the bank in unpaid loans advanced. The plaintiff in
HCCS No. 464 of 2018 in breach of contract. Issue No. 7 is answered in the
affirmative.
CASE REFERENCE:
The Plaintiff in HCCS No. 1545 036/2019 (defendant bank) is entitled to the
remedies sought. General damages are presumed to be the natural and probable
consequence of the wrong complained of. The consequences could be loss of
profit, physical, inconvenience, mental distress, pain and suffering. In cases of a
breach of contract, general damages are what court (or jury) may award when the
court cannot point out any measure by which they are to be assessed, except the
opinion and judgement of a reasonable man.
General damages are awarded to fulfil the common law remedy of restitution in
integrum. This means that the plaintiff has to be restored as nearly as possible to
the position he/she would have been had the injury complained of not occurred.
General damages are awarded within the discretion of the Court which is mandated
to exercise its discretion judiciously taking into account factors such as, the value
of the subject matter, the economic inconvenience that a party may have been put
through and the nature and extent of the breach or injury suffered.
Noteworthy, general damages awarded in a claim should not better the position of
the plaintiff but rather return him to the position he would have been if he had not
suffered the wrong complained of. Court finds that a sum of Ugx. 150,000,000/=
(One hundred and fifty million only) sufficient in general damages to atone for the
foregoing circumstances that the plaintiffs led the defendants into.
Court also awards the defendant interest on the outstanding sum and on the
general damages.
S.27 (1) of the Civil Procedure Rules provides that costs follow the event.
Consequently, the plaintiff, Haruna Sentongo's case is dismissed and with costs to
the defendant bank.
The plaintiff, Mr. Haruna Sentongo, is indebted to the defendant, Orient Bank
Limited, in the sum of Ugx. 10,384,308,959/= (Ten billion three hundred eighty
four million three hundred eight thousand nine hundred and fifty nine only).
The plaintiff is directed to repay the defendant the entire sum in (a) above.
CASE REFERENCE:
Interest is awarded on (a) above at the rate of 22% per annum, from the date of
first default until payment in full.
Interest is awarded on (c) above, from the date of this judgment until payment in
full.
The costs of the consolidated suits HCCS 464 of 2018 and HCCS 036 of 2019 are
to be borne by the plaintiff, Mr. Haruna Sentongo.
Legislations considered
The Contracts Act, No. 7 of 2010
The Civil Procedure Rules, SI 71-1
Cases cited
Assist (U) Ltd versus Italian Asphalt and Haulage & Amt., HCCS No. 1291 of 1999
AZK Services Ltd v Crane Bank Ltd (Civil Suit 334 of 2016) [2018] Ug.commc 63
Bisset Vs Wilkinson [1927] AC 177
Burton Vs Armstrong [1976] AC 104 at 121
Dharamshi v Karsan [1974] 1 EA 41.
Fredrick J.K. Zaabwe vs. Orient Bank and Others S.C.C.A No. 04 of 2006
Green boat Entertainment Ltd vs City Council of Kampala H-C-C-S No. 0580 of
2003
Haji Asuman Mutekenga v Equator Growers (u) Limited S.C.C.A No. 7 of 1995.
Horsfall –vs- Thomas [1862] 1 H&C 90
Kamuntu Anthony -vs- Hajat Zam Sendagire & Attorney General (Civil Suit No. 188
of 2019)
Kensheka v Uganda Development Bank Civil Suit 469 of 2011
Long Vs Lloyd [1958] 1 WLR 753
Lubega vs. Barclays Bank [1990-1994] EA 294
Mahabir Kishore v Madhya Paradesh 1990 AIR 313.
Maskell Vs Home [1915] 3. KB 106
Miao Huaxian vs k & another HCCS No. 078 of 2016
Nakalima Vs Ann Nandawula Kabali, Misc. App. No.235 of 2013
Pao on vs Lau [197913 ALL ER 65 at 78
Ronald Kasibante vs. Shell Uganda Ltd HCCS No. 542 of 2006 120081 ULR 690
Stanbic Bank Uganda Limited -v- Haji Yahaya Sekalega (Civil Suit No. 185 of 2009)
Total Kenya Ltd vs Joseph Ojiem, Nairobi (Milimani) High Civil Case No. 1243 of 1999.
William Kasozi vs DFCU Bank Ltd HCCS No. 1326 of 2000
CASE REFERENCE:
DESIGNED BY
2023