Bishop Balagadde Ssekadde and Others v Wamala and Others (Civil Appeal No. 0027 of 2011) [2019] UGCA 2113 (2 December 2019)

### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

[Coram: Egonda-Ntende, Musoke & Obura, JJA]

## Civil Appeal No. 0027 of 2011

### (Arising from High Court Civil Suit N0. 246 of 2011)

#### **BETWEEN**

| 1. Bishop Balagadde Ssekadde | | |------------------------------|------------------------------------------------------------------------------------------------------------------------------| | 2. M. Nassanga -Serunjogi | Appellants | | 3. E. P Lubwama | | | 4. Ddungu Livingstone | | | 5. Hajji Dirisa Kafeero | TTT89116 | | 6. Y. Semakula | | | | | | | (Administrators of the estate of the late Edward Nelson Serunjogial D<br>RECEIPT NO. 221000<br>SIGN 9 TITLE 19 30 100<br>AND | | 1. Moses Wamala | | | 2. Mary Wamala Musoke | Respondents | | 3. Nampiima J Wamala | | | | |

(On appeal from the judgment of the High Court of Uganda at Nakawa (Mwondha, J.) delivered on 26<sup>th</sup> August 2010.)

## Judgment of Fredrick Egonda-Ntende, JA

## **Introduction**

$[1]$ The respondents as the beneficiaries of the estate of the late Zubaili Sebulo instituted High Court Civil Suit No. 246 of 2002 against the appellants seeking a declaration that the late E. N Serunjogi breached the trust conferred on him by the late Zubaili Sebulo when he fraudulently transferred the land comprised in Kyadondo Block 194 Plot 111 into his

names.

8/0/2020<br>Received Detter for,


Page 1 of 21

- l2l The background ofthe case is that the late Zubaili Sebulo purchased 8.5 acres of land from a one Yakobo Musisi for a consideration of UGX 200 on 7rr'February 1939. Part of the land constituting 4 acres was transferred into the names of Erukana Kigozi upon subdivision and the rernaining 4.5 acres which constirutes the suit proper ty was registeled in tlte namcs of the late ZLrhaili Sebulo. It was alleged by the respondents that the late Zubaili Sebulo deposited the duplicate certitlcate of title to the suit property with the late E. N Serunjogi for safe custody since they were close friends. From the time of acquisition of the suit property to date, the family of the late Zubaili Sebulo has been in possession ofthe said land. - t3l The respondents also alleged that before the late Zubaili Sebulo's death, he demanded for his duplicate certificate o[ title l'rom the late E. N Serunjogi who refused to return it. Unknown to the late Zubaili Sebulo, the late E,. N Serunjogi had transfened the suit property into his names. Upon discovery of this through Fredrick Nelson Serunjogi laying claims to the land, the chil{,ren of the late Zubaili Sebulo lodged a caveat on the suit land. The appellants denied the respondents' allegations and claimed that the late E. N Serunjogi bought the suit lar.rd fronr the late Zubaili Sebulo for valuable consideration of UGX 2000 and merely allowed the latter to stay on the land. - t4] The learned trial judge entered judgment in favour of the respondents holding that the late E. N Serunjogi procured the transfer ofthe suit land into his names through fraud and therelore the appellants wele not entitled to the suit property. She ordered the cancellation of the late E. N Serunjogi's names fiom the title and the restoration of thc late Zubaili Sebulo's names as the proprietor. 'fhe learncd trial judge also awarded the respondents general damages ol UGX 5,000,000 and the costs of the suit. - t5l Being dissatisfied with thc decision of the trial court, the appellants appealed on the fbllowing grounds:

\

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T

'1. l'he Lcarned 1'rial Judgc erred in larv and fact rvlren she held that thc Limitation Period was not challenged in total disregard of the Appellant's submissions on the matter.

2.'l'he Learncd 'frial judgc erred in law and fact rvhon she found that the late Zubairi Sebulo deposited his ccrtillcate o1'title to land comprised in Kyadondo Ilkrck 194 Pkrt I I (tho suit land) rvith thc late E. N Semnjogi who in breach of tnrst transferred the same into his names.

3. fhat the l-carned 'l'riai Judge crrcd in law and fact when she held that the late E. N Senrnjogi procured registration of the suit land into his names through fiaud.

4.'fhc Leamed Trial Judge ened in law and lirct when she ordered the Registrar of Titles to cancel thc late E. N Serunjogi's name from the certificate ol title to the suit land and restore it into the late Zubaili Sebulo namc.

5. The Leamed 'l'rial Judge erred in law uhen she granted the Respondents Ceneral Damages of UG shs 5,000,000 (Five Million Uganda Shillings Only) and costs of the suit

6. T'he Leamed 'frial Judge ened in law and tact rvhen she lailcd to assess and evaluate thc evidence ort record as a whole'

t6] The respondents oppose the appeal.

### Submissions of Counsel

- I7l At the hearing, the appellants were represented by Ms Dorothy Nandugga while Mr. Mbogo Charles represented the respondents. Counsel adopted their written subrnissions. - t8l With regard to ground 6, counsel for the appellants submitted that the leamed trial judge did not properly evaluate the evidence on record as a whole otherwise she would have arrived at a dilferent conclusion. Ms.


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Nandugga argrred that the order of the trial court to rely on affidavit evidence in a matter that had already been panially heard orally denied the appellants' witnesses a chance to be cross examined which led to an injustice. She was also ofthe view that failure by the trial court to take oral evidence denied the trial .iudge the opportunity to receive the evidence at first hand and assess the demeanor of the witnesses. Counsel fbr the appellants averrcd that thc trial judge ought to lrave invited the witnesses who in her opinion were not truthful for cross-exant ination instead of misdirecting herself. She particularly singled out the affidavit evidence of Mujumbtrla Stanley which the leamed trialjudge had rendered a falsehood. Counsel tbr the appe llants relied on Gachigi v Kamau 120031 I EA 69 tbr the above subrn ission.

- t9] Ms. Nandugga also submitted that the learned trial judge's tailure to evaluate the evidence was an abuse of the principles of natural justice. She relied on the case of t [on. Ki <sup>u</sup>oi -fonn Nsubu it v Ronnv Waluku Wakata & 2 others [2012] UCCA 6 for the proposition that failure to avail an appellant the opportunity to cross examinc a rvitncss amounts to an inflringernent oltheir right to a fair hearing. She prayed tlrat this court finds on the basis of the above that the leamed trial judge did not appreciate the case ofthe appellants. Counsel for the appellants also relied on Rule 30(l ) olthe Judicaturc (Court of Appeal Rules) Directions S [ 13-10 and Non-Performins Assets Recovery Trust v S. R Nkabula & Sons Ltd 1r007 <sup>|</sup> UGSC 2i with regard to the tluty of a first appcllate cour1. - !0] In relation to grounds 2 and 3, Counsel for the appellants argued that no documentary or direct evidence was adduced at the trial to show that the late Zubaili Sebulo deposited his certificate of title with the late Edward Nelson Serunjogi for safe custody. She submitted that the late Zubaili Sebulo did not deposit the ccrtificate of title with the late Edward Nelson Serunjogi but instead sold to him the land for valuable consideration. She also submitted that no documentary or direct evidence was adduced at the trial to show that the late Zubaili Sebulo ever dcmandcd fbr any title fiom the late Edward Nelson Serunjogi tiom the tirne o1'transt'er in 1973 to 2002. Counsel fbr the appellants submitted that the learned trial juclge erred in

law when she failed to weigh the coached and uncorroborated evidence of PW2 who stated that he was sent bv the late Sebulo to claim for the certificate of titte.

- I l] She further argued that due to the fact that the late Sebulo was a Muluka Chief who knew how to read and write, there is no justifiable reason for the deccased's lailure to put the dernand in writing. She submitted that this evidence is corroborated by the affidavit evidence ofFredrick Serunjogi, Lawrcucc Kya'zt-e and Stanley Mujurnbula which was to the eflect that at the time of the late Sebulo's illness, he had been abandoned by the family and neither of his children visited him while at home and during his admission at Mulago hospital. She also contended that PW2 testilled that the deceased used to stay alone therefore there is no way PW2 would have been continuously sent to demand for the certificate of title yet he was not available. She was of the view that the respondents ought to have called Maama Faridah as a w'itness since she used to stay with the late Sebulo. Ms. Nandugga submitted that the respondents ought to have made their claim tiom the administrators of the estate of the late Edward Nelson Serunjogi when they invited all persons with claims for settlement. She relied on the affidavit evidence of a one Margaret Nassanga for this averment. - [ 12] With regard to ground 3, counsel for the appellants submitted that in rcaching the decision that the late trdward Nelson Serunjogi procured registration of the suit land into his name through fraud, the leamed trial judge did not consider the evidence on record and ignored the evidence of the appellants on the matter. Ms. Nandugga submitted that an asscssmcnt o[ the documents of transfer by Olanya Joseph Okwonga from the Govemment Analytical Laboratory revealed that the late Zubaili Sebulo purchased 8. 5 acres of land comprised in Kyadondo Block 194 Plot 9 from Yakobo Musisi on I 8'r' March 1 952 and in <sup>1967</sup>. The land was subdivided into two plots. 4 acres olland was given to a one Erukana Kigozi who had a claim on the land and that the remaining 4.5 acres of land were ard Nelson Seru njogi transferred by the late Z


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in 1973 for valuable consideration of UGX 2000. She averred that this evidence was corroborated by the evidence of Kulumba Kingi, a former Assistant Registrar of I'itles.

- It 3] Ms. Nandu-ega also argued that there was no complaint of fraud tiom the late Zubaili Sebulo for l2 years since the transfer had been executed and sin.rilarly the children of the latc Zubaili Scbulo did not lodge a claim of fraudulent acquisition ot'land against the latc Edward Nelson Serunjogi for fourteen years until his death. She lirrther submitted that the evidence of Nassanga and Stanley Mujumbula was to the effect that the late Edward Nelson Serunjogi met with the late Zubaili Sebulo's children and asked them to purchase the suit property from him but they did not get back to him. She therefore submitted that the respondents have no claim in the suit land and instituted High Court Civil Suit No. 0246 of 2002 to derail the execution of the late Edward Nelson Serunjogi's will. Counsel for the appellants concluded by stating that the late Edward Nelson Serunlogi did not procure registration ofthe suit property through fraud and there was no breach of trust because the late Zubaili Sebulo did not deposit a certificate of title with him fbr safe custody. - [1] Ms. Nandugga also urged this court to consider Kam ala Bottlers Ltd <sup>v</sup> l)omanico (tJ) l.td t l99il UGSC I that lays down the standard ofproofof flraud. She also relerred to section 43 of the Evidence Act cap 6 that allows court to seek expert opinion on specified matters and citcd the case of Niuku v Republic 120041 I EA 188 fbr thc proposition that the couft is entitled to accept the opinion of an expert if it is a confldent one and not challenged in cross-examination. Counsel for the appellants while arguing that the evidencc ofthe handwriting expert ought to be uphcld by this court relied on the case of U.eachisk Pqultni Breeders Ltd v Tadiin Kara T/A S. T []nte rises L,td <sup>1998</sup> LICCA il wircre this cor.rrt hcld that court is not bound by the opinion of experts if it has found good reason for not doing so but rejecting the expert evidence without giving reason might be prejudicial.

- [15] With regard to ground 1, counsel for the appellants submitted that the appellants challenged the filing of High Court Civil Suit No. 0246 of 2002 on the ground that it was barred by limitation and or laches. She argued that on pages 131, 132, 133 and 134 of the record of appeal, the appellants submitted on this issue but the learned trial judge ignored the submissions. She also stated that the issue of limitation was raised by the appellants under paragraph 4 of their written statement of defense. Ms. Nandugga submitted that if any cause of action for fraud or breach of trust ever arose, it was in 1973 when the suit land was transferred into the names of the late Edward Nelson Serunjogi or in 1983 when the late Zubaili Sebulo started asking for his title or even after the death of the latter in 1985 since PW2 kept on demanding the title from the late Edward Nelson Serunjogi. In her submissions, counsel for the appellants relied on section 5 of the Limitations Act Cap 80. She concluded by stating that had the learned trial judge properly evaluated the evidence on record and addressed her mind on the relevant law, she would have found that the respondent's claim was barred by the law of limitation. - [16] In his submissions on ground 4, counsel for the appellants relied on section 64 of the Registration of Titles Act and reiterated her submissions on grounds 2 and 3 and maintained that fraud was not strictly proved as $\frac{1}{2}$ required by the law. She was of the view that had the trial judge properly addressed her mind to the law relating to cancellation of title and properly evaluated the evidence on record, she would not have ordered for the cancellation of the appellants' title. - [17] With regard to ground 5, counsel for the appellants relied on Mbogo v Shah [1968] EA 93, Uganda Development Bank v National Insurance Corporation, G. M Combined (U) Ltd [1996] UGSC 5 and Matiya Byabalema & 2 ors v Uganda Transport Company [1993] UGSC 18 which lay down the principles upon which an appellate court can interfere with the discretion of the trial court in awarding damages. Counsel for the appellants reiterated her submissions on grounds 2 and 3 and submitted that there was neither breach of trust nor fraud on the part of the appellants that warranted the grant of general-damages to the respondents. She


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refen'ed to the evidence of DWt and the atlidavit cvidence of Margarct Nassanga. She also relicd on Rule 22 of thc Judicature (Court of z\ppeal Rules) Directions to pray for an eviction order against the respondcnts. She reliecl on Odd Jobs v Mubia LL970l EA -176 and Sinba (K) Ltd & 4 Ors v Uqanda Bloadcastins Corporatio;i I20l5l UGSC 2l .

- [8] In conclusion, counscl tbr the appellants prayed that this court llnds that the late Edward Nelson Serunjogi was the lawful owner of thc suit land and issue eviction orders against the respondents. - <sup>I</sup>19] In reply to the appellants' submissions, counsel fbr the respondents submitted that the ground I should be struck out because the issue of limitation was pleaded by the respondents in the trial court but it was not effectively challenged. Mr. Mbogo averred that a scheduling conference was held but the appellants did not raise a preliminary objection nor frame it as one of the issues to be resolved. They therefore waived the issue. He relied on the case of Attomey General v Olient Construction Co. Ltd Supre rlrc Court Cltil ABpeaLNs-9 d <sup>1911</sup> (unreported) lor the proposition that issues not raised in the trial court should not normally be raised on appeal. He further argued that the trial judge was alive to the issue of limitation as she ret'erred to it in her judgment. He also submitted that appellants merely denied the respondents' pleadings in paragraphs l0 in their reply to the amended plaint but did not state how the suit is barred by the law contrary to Order 6 Rule 8 of the Civil Procedure Rules that provides that denials must be specific. - [20] Counsel for the respondents further submitted that none of the appcllants' witnesses in their affidavits challenged the suit on the ground that it was barred by lirnitation save in the affidavit of Margaret Nassanga who stated that the respondents' clairn was caught up by the doctrine of laches. He argued that being caught up in the doctrine ol laches is not the same as being barred by the statute of limitation. FIe cited James Semusambwa v Rebeccd Mulira It999] UCCA 4 where this courl held that latches is merely a delay not amounting to a bar by the statute of limitation. Counsel settle the matter out of court and the case was adjoumed to 30th March 2010 to resume the hearing. On that date, the parties appeared before Mwondha, J., (as she then was) because the previous judgc had been transferred. Counsel fbr the appellants was absent but the 7th defendant was in court. In the interest ofjustice, the learned trial judge directed the parties to file affidavit evidence. On 18'l'June 2010, the parties appeared in court and discussed the status of their written submissions. Judgment was reserved for 71h July 2010.

[32] Order l8 Rule 11(1) of the Civil Procedure Rules, deals with the situation as it obtained in this case. It states,

> 'Where a judge is prevented by death, transfer or other cause tiom concluding the trial o[a suit, his or her successor may deal with any evidencc taken down under rules I to l0 of this Order as if the evidence had been taken down by him or her or under his or her direction under those rules, and may proceed with the suit flrom the stage at rvhich his or her predecessor left it.'

[33] It was open to the new trial judge to proceed from the point at which the trial had stopped under Okello, J. That would have been to hear the remaining witness for the plaintiff and then hear the def'endant's witnesses in the manner provided for under Order 18 rules I to 10 of the Civil Procedure Rules.

I

- [34] The learned trial judge did not do so. On the contrary the learned trial judge adopted a procedurc that was unknown to tl.re law ot civil pmcedure. The judge decided to try the case de novo which in itself was not a problem. However, she ordered both parties to tile affldavits and she then proceeded to write a judgment and deliver the same. The question that arises is whether this case was heard and determined in accordance with the law? - [35] Order 18 provides the procedure to be used in the conduct and hearing of a civil case including the taking ofevidcnce. I shall set it out in part below.


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# . ORDER XVIII-TIEARING OF THE SUIT AND EXAMINATION OF WITNESSES.

l. Right to begin. The plaintifl'shall have the right lo begin unless the dct'cndant admits the thcts allcgcd by the plaintifl and coirlcnds that cithor in point of law or on some adclitional lacts allcged by the dcl'cndant the plaintitT is not entitled to any part of the rcliefwhich he or she seeks, in rvhich case the defendant shall have the right to begin.

### 2. Statcment and production ofevidence.

(l) On the day fixed for the hearing of the suit, or on any other day to which the hearing is adjoumed, the party having the right to begin shall state his or her casc and produce his or hcr cvidence in support of the issues which he or she is bound to provc.

(2) The other party shall then state his or her case and produce his or her evidence, if any, and may then address the court generally on the whole case. (3) The parly beginning may then reply generally on the whole case: except that in cases in which evidence is tendered by the party beginning only he or she shall have no right to rcply.

#### 3. Evidence rvhere sevcral issues.

Where there are several issues, the burden of proving some of which lies on the other party, the party beginning may, at his or her option, either produce his or her evidencc on thosc issucs or reserve it by way of answer to the evidence produced by the othcr party; and, in thc latter case, the pany beginning may produce eviclcnce on those issues ailer thc other party has produccd all his or her evidence, and thc other parly may then reply specially on lhe evidence so produced by thc party beginning; but the party beginning will thcn he cntitled to rcply generally on thc lvholc case.

4. Witncsses to tre examined in upcn court.

Thc evidence of the witnesscs in attendance shall be taken orally in open court in thc presence ofand under the pcrsonal direction and superintendence of the judge.

#### 5. How evidence to be recorded.

Thc evidence ofeach witncss shall be taken down in rwiting by or in the presence and undcr thc personal dircction and superintcntlonce ol thc judge, not ordinarily in the form of question and answer bul. in that of a narrative. and u'hen cornpletcd shall be signcd by the iudgc.

6. Records made in shorthand or by mechanical means. Notwithstanding nrle 5 of this Order, the cvidence given or any other proceeding at the hearing of any suit rnay be recorded in shorthand or by mechanical means, and. if the partics to the suit agree, the transcript of'anything so recorded shall, it'ce(itied by the judge to bc corrcct, be deemed to bc a record of the evidence or other proceeding for all the purposes of the suit.

#### 7. Summary of cvidence in certain cases.

Notwithstanding rule 5 of this Order, in all cases before any court in which the subject matter in dispute or amount claimecl can bc valued in money and lhal value does not cxceed three hundred shillings, it shall be sutlicient fbr thc judge to make in writing a briel summary ot the evidence given before him or her.

8. Any particular question and answer may be taken down. The court may, of its own motion or on the application of any parly or his or her advocate, take down any particular question and answer, or any objection to any question, if there appears to be any special reason tbr so doing.

9. Questions objccted to and allorvcd by court. Where any question put to a rvitncss is objected to by a party or his or her advocate. and the court allows the question to be put, the judgc shall take down the question, thc answer, thc objection and


Page 15 of <sup>21</sup> <sup>i</sup>

10. Rcrnarks on demeanour of witness. 'fhe court may record such remarks as it thinl<s material respecting the dcmeanour of any witness while under exumination.

ll. Powcr to deal rvith cvidencc takcn beforc another judge. ( I ) Whcre a judge is prevented by death, transfer or other cause lrom concluding the trial oi'a suit, his or her susecssor nray dcal wilh any evidence taken down under rules I to l0 of this Order as if thc evidence had been taken down by him or her or under his or her dircction under those rules, and may procecd with the suit from the stage at which his or her predecessor lcll it.

(2) The provisions of subrule ( I ) of this rulc shall, so lar as they are applicable, be dcemed to apply to cvidence taken in a suit transtbrred under section l8 ofthe Act.

#### 12. Power to examine witness immediately.

( I ) Where a witness is about to leave thc jurisdiction of the court, or other sufficicnt causc is shown to the satisfaction olthe court why his or hcr evidence should be taken immediatcly, the court may, upon the application ol any party or of tho rvitness, at any time aller the institution oithc suit, takc thc evidence ofthc witness in the manner hcreinbetbre provided.

(2) Where the evidence is not taken immediately and in thc presence ofthc parties, such notice as tho court thinks sufficient of thc day fixed tbr thc cxamination shall be given to the parties. (3) The evidencc so takcn shall bo rcad ovcr to thc witness antl, if he or she adrnits it to be coreot, shall bs signcd by him or her. and thc judgc shall, if' nccessary, correct the evidence, and shall sign it, and it may then be read at any hcaring o['the suit.

#### 13. Court may recall and examine witness,

'l hc court may at any stage of the suit recall any 'witncss rvho has been cxarnincd. and ma\_v, subject to the larv of evidence tirr thc tirnc bcing in fbrcc.

pul such queslions 10 him or her as 1hc court thinks fi r.

14. Porver ofcourt to inspect.

The court may a1 any slage of a suit inspect any property or thing concerning which any queslion may arise.'

- [36] The leamed trial judge did not follow thc above procedure in the taking of the evidence in the case. Order l9 allows the proof of ceftain lacts or the evidence of any witness to be by way of affidavit. - [37] ltprovides,

# . ORDER XIX-AFFIDAVITS.

## 1. Power to ordcr any point to be proved by affidavit.

Any court mey at ony timc for sulfiuient reason ordcr thal any purticrrlar fact nray be provcd by affidavit, or that the aflidavit of any witness ruay bc rcad at the hearing, on such conditions as the court thinks reasonable; except that whcre il appcars to the court that either party bona lide dcsiros the production o1- a u,ilness for crossexarnination and thal such witness can be prodtrcerl, an ordcr shall not bc madc authorising the cvidence of that wilness to he given by affidavit.

## 2, Power to ordcr attcndance of deponent for cross-ctarnin:ttion.

(l ) Upon any application evidence may be given by al'fidavit, but the court may, at the instancc of cither party, order the attcndance lor crossexamination of the dcponent.

(2) Thc attendance shall be in court, unless the dcponent is exenrptcd iionr pcrson:rl appearance in courl or thc court otherwise directs-'


- [38] The foregoing provisions allorv aflldavit evidence to provc a particular fact or of any witness. What it does not authorise is the conduct of a whole trial only on affidavit evidence. Secondll,where such witness would need to be cross exarnincd then no order should be made for alfidavit evidence to be received from such witness. - [39] Much as this issue was not raised by the parties during trial, it is of relevance in this matter. It is also evident that neither of the parties challenged the directive ofthe trial court to file affidavit evidence but that does not negate the duty ofthe trial court to conduct a full and proper trial which must be oral. The relevance of affidavit evidence is to enable the expeditious disposal ofthc cascs by taking up the fonn ofthe cxamination in chief. Horvever, the witnesses rnust adopt their statements in court during trial and be cross examined on them at the option of the panies. - l40l This court in Kashoneole Godfrey v Kafeero Francis l20r7l UGCA r30 dealt with a similar matter. In that case, at the scheduling conference, the trial cou( ordered the parlies to file srvorn statements of their rvitnesses upon which the'y were to be cross examined during the hearing scheduled for 25ti'June 2010. However, the court was not rcady to proceed with the hearing on that date. The mattcr was adjoumed to lOth September 2010 but there was no record ofwhat happencd on that date. Subsequently the case was called on 251r'January 201 I but the plaintiff and his counsel were not in courl. The trial court directed the defendants to file written submissions since there was nothing to cross examine on and the leamed trial judge delivered judgcrnent on lTth March 201l. The appellant appealed against the decision of the trial couft and this court in answering the question u4rether there was a trial stated:

'l l. All the lbur grounds ofappcal in this casc are all elements ofone qucstion on this appcal. 'l'he qucstion 1o be answercd on this appeal is whcther or not in thc court below thc case before i1 u,as hearci or not. Did a trial takc place or nol? Section 25 ofthe Civil Procedure Act provides.

'The court, after the case has been heard, shall pronounce judgment, and on that judgment a decree shall follow; except that—if the defendant does not enter such appearance as may be prescribed, the court may give judgment for the plaintiff in default; in cases for which rules have been made under section $41(2)(k)$ of the Judicature Act, it shall not be necessary for the court to hear the case before giving judgment.'

12. It is clear from the foregoing provision that judgment can only follow after the case had been heard. A trial ought to have taken place.

### [Order 18 Rules 1-11 of the Civil Procedures *Rules was set out. 7*

14. The foregoing provisions envision an oral hearing with witnesses being called in person and examined by the parties. Provision is made for proof of certain facts by way of sworn statements or affidavits. This is Order 19 Rule 1 which states.

'Any court may at any time for sufficient reason order that any particular fact may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the court thinks reasonable; except that where it appears to the court that either party bona fide desires the production of a witness for crossexamination and that such witness can be produced, an order shall not be made authorising the evidence of that witness to be given by affidavit.'

15. The court is authorised to order particular facts to be proved by affidavits but where it appears that cross examination will be necessary no order shall be made authorising evidence to be given by way of affidavits. It cannot be asserted that the procedure adopted in the court below was in compliance with order 19 rule 1.


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<sup>I</sup>6. Neithel can it be asserted that the proccdurc adoplcd in thc coufl bclor.l, lollorved what is prescribed in ordel l8 ofthc Civil Procedurc Rules. No r.vilncsscs ucrc callcd. No hcaring took place. Thc partics liled su,orn rvilness statcmcuts rvhiclr the learned judgc took as evidence in thc case plus anncxurcs to thc plcadings or documents that partics had filed and that formed the basis upon uticlr the judgmcnt was pronounced.

<sup>I</sup>7. Wc are au,are that a practicc has dcvelopcd in the somc divisions of the High Court ol Uganda in u,hich Tvitness statcmcnls are filed before the hearing ofthe case but such witness statements musl bc adoptcd at the hearing ofthe case by the witnesses in question in person and it is lakcn to form the examination in chiefofthat witness's evidcnce u ith cross examination following as the appropriale.

<sup>I</sup>8. We approve of ellbrts taken to develop procedures that expedite the hearing and cletermination of cascs but such procedures musl be consistent \l,ith existing law or at lcast not in conflict with existing law.'

- [ l] In light of the above, there was a clear violation of Order l8 and 0rder <sup>19</sup> rule 1 ofthe Civil Procedure Rulcs as this is the kind of matter where cross examination was necessary in the interests of justice. l'here was no justifiable reason fbr the trial court to adopt the procedure it did. All the witrlesses ought to have becn called to give their evidencc or thcir affidavits or written statements read in open court so as to allow cross examinatiorl to tal<c place. In rny opinion lhe trial u,as incomplete and irregular. The resultant judgment canrlot stand. - [a2] h the result it is unnecessary to consider the grounds of appeal set forth by the appellanl. [43] For the foregoing reasons, I would set aside the judgement of the trial courl and order a re-trial. I would direct each party to bear its own costs of the appeal as neither palty raised the question of larv upon which this appeal has been decided.

## Decision

[44] As Musoke and Obura JJA agrec this appeal is allowed and a re-trial is ordered. Costs below will abide the outcome of the re trial.

^ ,o Signed, dated and delivered at Kampala this I day of drick E. r-rda- tende Justice of Appeal 2019


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#### THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

(Coram: Egonda-Ntende, Musoke & Obura, JJA)

## CIVIL APPEAL N0. 0027 OF 2011

(Arising from the judgment of the High Court of Uganda (Mwondha, J.) in High Court Civil Suit No. 246 of 2011 delivered on 26<sup>th</sup> August 2011)

#### **BETWEEN**

| | BISHOP BALAGADDE SSEKADDE | | |----------|------------------------------------------|-------------------------------------------------| | | 2. M. NASSANGA-SERUNJOGI | | | | E. P. LUBWAMA | | | | 4. DDUNGU LIVINGSTONE | | | | 5. HAJJI DIRIZA KAFEERO | | | | Y. SEMAKULA | | | | (Administrators of the estate of the | | | | late Edward Nelson Serunjogi) | }::::::::::::::::::::::::::::::::::::: | | | | AND | | | <b>MOSES WAMALA</b> | | | 2.<br>3. | MARY WAMALA MUSOKE<br>NAMPIIMA J. WAMALA | <pre>::::::::::::::::::::::::::::::::::::</pre> |

#### **JUDGMENT OF HELLEN OBURA, JA**

I have had the benefit of reading in draft the judgment of my learned brother Egonda-Ntende, JA. I agree with his finding that the trial was incomplete and irregular and the conclusion that the resultant judgment cannot stand hence an order for a retrial.

Dated at Kampala this. $\lambda$ .....day of....... .........2019.


Hellen Obura

**JUSTICE OF APPEAL**

$\mathcal{S} = \mathcal{S}$ $\mathcal{P} = \mathcal{P}$

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA (Coram: Egondo-Ntende, Musoke and Obura, llA) CIVIL APPEAL NO. OO27 OF 2011 BETWEEN

- 1. BISHOP BALAGADDE SSEKADDE - 2. M. NASSANGA. SERUNJOGI APPELLANTS - 3. E. P LUBWAMA - 4. DDUNGU LIVINGSTONE - 5. Y. SEMAKULA

(As odministrators of the estdte oI the lote Edward Nelson Serunjogi)

AND

- 1. MOSES WAMALA - 2. MARY WAMALA MUSOKE - 3. NAMPIIMA J WAMALA :::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENTS

#### JUDGMENT OF ELIZABETH MUSOKE JA

I have had the benefit of reading in draft the lead judgment of my learned brother Fredrick Egonda-Ntende, JA, to which I concur with nothing usefulto add.

I agree that the trial in the lower Court was irregularly conducted, and the judgment which arose therefrom ought to be set aside, and a retrial ordered. As directed by Egonda-Ntende, JA, each party should bear its own costs of the appeal for the reason s given

C\rC d....day of [ -\_\\*- Dated at Kampala this. <sup>019</sup>

/,': j 'r"-

Elizabdth Musoke Justice Of Appea <sup>I</sup>

COURT OF APPEAL OF UGANDA CEIITIFIEO TRUI CO'Y REGISTR EP 2020 \

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