In 2020, Francis Xavier Ssempiira, a Ugandan living in Canada, was introduced to Aline Nabami, a gold dealer who was also operating a garage in Kampala.
Ssempiira was the founder of Yata Technologies Inc, a Canadian company. When the Covid-19 pandemic affected the company’s business in 2020, he decided to start a luxury jewellery line using gold as one of the raw materials.
So he obtained Shs 160.2m through Toronto Dominion Bank to support the venture and then contacted a one Prudence Kabugho, a Ugandan friend, who in turn introduced him to Nabami, the gold dealer.
Ssempiira said Nabami assured him that she had access to genuine gold dealers and could buy gold and export it to him in Canada.
The first money changed hands on 26 November 2020.
Ssempiira sent Shs 5m to Uganda through his brother, Joseph Kiwanuka, who handed the cash to Nabami.
Nabami signed a written acknowledgement confirming that she had received the money to travel to Tanzania for what she described as a “gold mission”.
She travelled to Dar es Salaam, met a one Levrance Nkombo, a gold dealer, and sent Ssempiira photographs and videos of gold.
An attempt was made to transport the gold to Canada through DHL, but the courier refused because it did not transport gold.
She returned to Uganda and said she left the gold with Nkombo, the Tanzanian dealer.
Between November 29, 2020 and early 2021, Ssempiira continued sending money to Nabami through electronic transfers and mobile money.
The court found that she received Shs 5m in cash and Shs 101 million electronically. The electronic payments were made for the purchase and shipment of gold.
Nabami had claimed that Ssempiira borrowed Shs 7 million from her and later Shs 33 million. She also said he gave her Shs13 million as a gift.
She said she had no experience in the gold business and had told Ssempiira so. She claimed that Ssempiira was the person who asked her to travel to Tanzania to meet Nkombo, whom he already knew and who allegedly had gold for sale.
Nabami also relied on WhatsApp messages which she said showed that she and Ssempiira had become partners in the gold business.
One message from a contact saved on her phone as “Prudence. Husband. Francis” stated: “We’re partners”.
Ssempiira denied that they were business partners.
When Justice Thomas Ocaya scrutinised the WhatsApp exchanges, he discovered that they did not establish a legal partnership capable of defeating Ssempiira’s claim.
He also noted that Nabami did not call several people who could have supported her account, including Nkombo, Bruno Oyambia Njeka and Agnes Zainab.
Justice Ocaya said perhaps the evidence of the three witnesses, had they been called, “would not have supported her claims.
Another major part of the case concerned Shs 191 million, which Ssempiira said he had borrowed from FX International Ltd and given to Nabami in cash.
Ssempiira said the money was delivered to Nabami by his agent, Eron Nabacwa.
Nabacwa told court that on 8 April 2021, she collected the Shs 191 million from a one Brenda Kirabo, put it in an envelope and took it to Nabami at Atiya Jewellers in Namaganda Plaza on Luwum Street, but she refused to acknowledge receipt of the money.
Nabami told the court that she did not receive the said money. Justice Ocaya agreed there was no receipt, photograph, message confirming the meeting, or other independent evidence proving that the money had reached Nabami.
Justice Ocaya said the absence of supporting evidence was particularly important because Shs 191 million was not a trivial sum to hand to a person in a shop without a receipt or acknowledgment.
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The central question then became whether Nabami had actually bought and delivered gold using the money she received.
The answer was no.
Nabami said the gold had remained with Nkombo after DHL refused to transport it. She argued that Nkombo was holding the gold on Ssempiira’s behalf.
But Justice Ocaya said there was no evidence that Nkombo was Ssempiira’s agent, questioning why a purchaser living in Toronto, who had never met Nkombo and had never visited Tanzania, would leave gold he had paid for with a person he did not know.
He said that there was no evidence showing what happened to the money Nabami received.
“She produced no receipt from any seller, no invoice, no assay certificate, no export documentation, no customs entry and no accounting of any kind,” Justice Ocaya said.
Ssempiira also told court that after the alleged shipment failed, a person claiming to be a customs agent contacted him and demanded Shs 5.34 million.
He said he checked with the Canada Border Services Agency and his clearing agent, but neither had any package for him or his company in Canada.
Justice Ocaya ultimately found that Nabami received Shs5 million and about Shs 101.9 million in electronic transfers for the gold transaction, but did not buy or deliver the gold.
He described the situation as a “total failure of consideration”, meaning Ssempiira had paid for something and received nothing in return.
He said Nabami’s claim that she was herself a victim of fraud by other people did not excuse her from accounting for Ssempiira’s money.
Justice Ocaya cited an earlier case in which the court held that a person who says they were themselves conned may seek recovery from the person who conned them, but that this does not prevent the original owner of the money from recovering it where the promised transaction completely failed.
In the end, he accepted the core of Ssempiira’s case, but only to the extent that he could prove the payments.
In the final orders, Justice Ocaya ordered Nabami to pay Ssempiira Shs 5 million, Shs 101.9 million and Shs 60m in general damages, meaning she will have to pay a total of Shs 166.9 million at an interest of 23% per year.
Nabami was also ordered to pay the costs of the case.
