A “travesty:” Business Man Ben Kavuya And His Global Capital Save to appeal Court of Appeal Judgement

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Business man Ben Kavuya and his financial services firm Global Capital Save are planning to appeal to the Supreme Court a Court of Appeal Judgement ordering them to return the properties of one Wakanyira David.

Describing it as a ” travesty”, his lawyers of Mwesigwa Rukutana and Co Advocates say they have already filed a Notice of Appeal and are waiting for the record of proceedings to guide them in drafting a memorandum of Appeal to the Supreme Court.

The dispute that centers on whether the transaction between the trio was a loan or a sale goes as far back as 2007 when Wakanyira David approached Global Capital Save and Ben Kavuya for money apparently to repay a loan he had obtained from Housing Finance bank.

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Despite admitting to signing a sale agreement, power of attorney and transfer forms, transferring his properties to Global Capital Save and thereby its managing director Ben Kavuya, Wanyira David claims the transaction was a loan and that a loan agreement was signed between the trio.

In spite of his failure to adduce the loan agreement as evidence in Court and in the face of a Sale agreement, payment slip indicating payment to Housing Finance bank, transfer forms and consent to transfer forms, the Court of Appeal agreed with Wakanyira and set aside a High Court ruling that had found the transaction was a sale and therefore Global Capital Save was entitled to the properties.

 

” In the absence of evidence that the parties intended to be bound contractually to the sale and transfer, Court should be reluctant in deciding that the executed documents formed the basis of a legal contractual relationship.

” The exigencies of every day life such as the need for money to pay medical bills, school fees which cause temporary indisposition make it most unlikely that either party contemplated that one was legally bound to the transfer of such security,” Justice Cheborion Barishaki, who read the Court’s majority judgement said, concluding that;

” While admitting that a sale agreement was signed albeit not having been witnessed by the person said to have done so and transfer forms executed, the appellant [ Wakanyira] never intended to enter into a legal contract of sale of his properties.”

Now, Ben Kavuya and Global Capital Save through their lawyers say the Court of Appeal set a bad precedent and overlooked the age old rule of parole evidence and hope the Supreme Court will over turn the Judgement.

” We are particularly concerned about the fact that the Court of Appeal in the face of a written agreement and transfer forms relied on extrinsic evidence to conclude that there was a loan agreement instead” said Derrick Kahima, one of the lawyers representing Ben Kavuya and Global Capital Save.

” Where contents of written agreements can be varied by extrinsic evidence” he added, they would be of ” little value and consequently the threshold for good faith would remain uncertain.”

Benjamin Ahikiiriza is a Legal Writer And Digital Communications & Marketing Specialist majoring in Lawyers, Law Firms And the larger Legal Sector.

Benjamin currently Works as the Director of Content and Business Development At LegalReports.


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