Crescent Transport Co. Limited v Kaaya (Civil Appeal No. 37 of 2000) [2001] UGCA 42 (22 August 2001)

### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### CORAM: HON. LADY JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ HON. JUSTICE G. M. OKELLO, J. A. HON. JUSTICE A. TWINOMUJUNI, J. A.

### CIVIL APPEAL NO.37 OF 2000

### CRESCENT TRANSPORTATION CO. LTD...................................

## VERSUS

NURU KAAYA..................................

(Appeal from the decision of the High Court (Okumu-Wengi, J)<br>dated 22<sup>nd</sup> June in HCCS No.1311 of 1999)

#### JUDGMENT OF TWINOMUJUNI, J. A.

This is an appeal against the order of the High Court of Uganda in which the appellant was ordered to pay to the respondent US\$58,396 for breach of a contract of carrying of goods. The background to the appeal is that the respondent filed in the High Court Civil Suit No.1311 against the appellant a claim for US\$58,396 being the value of goods allegedly lost by the appellant in transit from Mombasa to Kampala and special damages.

At the trial the following issues were framed and agreed upon: -

- "1. Whether the plaintiff lost her merchandise whilst it was in the custody of the defendant; Or whether the plaintiff's goods were lost by the defendant. - 2. Whether the loss of the plaintiff's goods was due to the dishonesty or negligence of the defendant of its servants, or employees.(sic) - 3. Whether the defendant is liable for the loss of the goods. - 4. Remedies and or quantum of damages if any."

The respondent called the evidence of three witnesses and closed her case. The case was then adjourned to another date to hear the defence witnesses. On the date to which the case was adjourned, what transpired is recorded as follows: -

"22/06/2000: - Court as before.

Representation same.

Tayebwa: I have a problem. Seek courts indulgence. Wrote to my client informing them of the They instead thought the hearing date. hearing is tomorrow.

I pray for adjournment for Court to $\sim$ accommodate us tomorrow.

$\begin{array}{ccccccccc}\n & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & &$

- Do you have a copy of the letter you wrote to Court: them or the reply? - Tayabwa: Unfortunately, I have not come with them. No reply either. - Byaruhanga: I do not know what to say. Had he consulted me prior I would have conceded. - Court: The defendant has failed on adjourned hearing to proceed with his case. It is inconceivable that a person can read 23<sup>rd</sup> when he is informed of $22^{nd}$ of June. I therefore invoke order 15 rule 4 of the Civil Procedure Rules and enter Judgment for the plaintiff as prayed with costs.

. . . . . . . . . . . . . . . . . . . R. O. OKUMU-WENGI 22/06/2000."

Against this order the appellant appeals on three grounds as follows: -

"1. The learned trial judge wrongly exercised his discretion when he refused to grant an adjournment to enable the appellant call its witnesses and proceeded to immediately enter judgment for the respondent for US\$58,396.

$\alpha$ $\alpha$ $\beta$ $\alpha$ $\beta$ $\alpha$

- 1. The learned trial judge erred in law and fact when he entered judgment for the respondent without stating the reasons for his findings on the issues framed. - 2. The learned trial judge did not analyse and evaluate the evidence on record and as a result he erred both in law and fact when he:- - (a) Entered judgment in favour of the respondent who failed to prove her case. - (b) Awarded a sum of US\$56,396 to the respondent for special damages, which was not specifically proved as required by the law."

In a written submission on behalf of the appellant Mr. Cranimer Tayebwa submitted on the first ground of appeal that the learned trial judge wrongly exercised his discretion when he refused to grant an adjournment to enable him produce his witnesses. He conceded that granting of an adjournment was a matter purely in the discretion of the court to whom such application is made. He was, however, of the view that in the circumstances of this case, the discretion was wrongly exercised because: -

- (a) The appellant had previously appeared in court with its witnesses ready to give evidence, but their evidence was not taken because the respondent's case was still in progress. - (b)On the 22/6/2000, the witnesses failed to attend because of a genuine mistake because they thought the date given by the court was 23/6/2000. - (c) The one-day adjournment sought would not have caused any unreasonable delays.

Mr. Tayebwa also submitted on this ground that having refused adjournment, the trial judge should have invited the parties to address the court since the suit was defended and the respondent had adduced evidence. In his view, since both parties had filed pleadings and there was substantial evidence on record, the court should have invited counsel to submit on the law and evidence on record before deciding the case. Learned counsel relied on the cases of UDB vs. N. I. C. & Anor. Supreme Court Civil Appeal No.28 of 1995 (unreported), Shah vs. Allu (1947) 14 EACA and Famous Cycle Agencies Ltd & 4 Others vs. Mansukhalal Ranji's Karia and 2 Others Civil Appeal No.16 of 1994 (S. C.) (unreported) to support his submissions.

In reply 34. Eyes the major learned counsel for the respondent supported the decision of the trial court to refuse an adjournment. He argued that the appellant was given more than sufficient opportunities to produce its witnesses in court but it failed to do so. He pointed out that the date of 22/6/2000 on which the adjournment was refused was announced in court by the trial judge on 26/5/2000 and wondered how the witnesses who are said to have been present could have misheard the date. He contended further that

counsel for the appellant failed to produce evidence that he had written to the witnesses informing them of the hearing date as he claimed in court and consequently, he had no reasonable explanation as to why they were not in court. There was no sufficient cause to justify any further adjournment. He relied on the case of Famous Cycle Agencies Ltd vs. Ranji Karia (supra).

I will now dispose of this ground of appeal. I think that it is now a well established principle of our law that adjournment are granted at the discretion of a trial Court. There is no dispute about this matter and both counsel cited similar authorities on the point. It is also generally agreed that an appellate court will not interfere with the exercise of discretion by a court unless it was not exercised judiciously. The law on the subject is neatly summarised in the judgment of ODER, J. S. C. in Famous Cycle Agencies Ltd vs. Ramji Karia (supra) as follows: -

"Under this rule (0.15 r.1 CPR) the granting of an adjournment to a party to a suit is thus left to the discretion of the Court. The discretion is not a subject of any definite rules, but should be exercised in a judicial and reasonable manner and upon proper material. It should be exercised after considering the party's conduct in the case, and the epportunity he had of getting ready and the truth, the sufficiency of the reason alleged by him for not being ready.

The discretion will be exercised in favour of the party applying for an adjournment only if sufficient cause is shown. Sufficient cause, in my opinion, refers to the acts or omissions of the applicant for adjournment. What is sufficient cause depends upon the circumstances of each case. Generally speaking where the necessity for the adjournment is not due to anything for which the party applying for it is responsible, or where there has been little or no negligence on his part, an adjournment would not normally be refused. But where the party has been wanting in due diligence or is guilty of negligence, an adjournment may be refused.

Under the corresponding rule of the Indian "Code of Civil Procedure" by MONAHAR & DITALEY 10<sup>th</sup> Edition, Page 543, circumstances which have been held to constitute sufficient cause for adjournment include where a party is not ready for the hearing by reason of his having been taken by surprise; where he could not reasonably have known of the date of hearing in sufficient time to get ready for the same; where his witnesses fail to appear due to the fault of the party; where the absence of the witnesses is due to a bonn fide mistake on the part of the party; where the party is not ready owing to his lawyer having withdrawn his appearance in the case under circumstances which do not give the party sufficient time to engage another lawyer and enable him get ready; and where the refusal of an adjournment will

# enable the opposite party to successfully evade previous interim order against him."

In the instant case, there is no suggestion that the appellant was guilty of any dilatory conduct. Its witnesses had been appearing in court but could not be heard because of one reason or other. The trial of the case started on 26/4/2000 and although the case was adjourned a few times, it was not at the instance of the appellant. It cannot be ruled out that, on 22/6/2000 when appellant's witnesses failed to show up, it was not due to a bonafide mistake on their part as counsel for the appellant claimed. Moreover, counsel never tried to delay the proceedings because he only asked for one day's adjournment. It is generally accepted that the essence of a trial is that both parties should be heard and except where a party is deliberately dragging the proceedings in a trial, such a party should not be denied opportunity to present its case. In these circumstances of this case, I am unable to hold that the learned trial judge exercised his discretion judiciously. The refusal to grant an adjournment to the appellant was totally unjustified and occasioned a serious miscarriage of justice. This court therefore, has a duty to interfere with the trial judge's exercise of discretion to correct the injustice.

I am equally at a loss as to why, laying chosen to refuse the adjournment. the trial judge did not invite the parties to address the court. This was a defended suit and all counsel were present before him. All the pleadings and a substantial amount of evidence were on record. Surely, counsel should have been given opportunity to address the court on the court record. As the court record shows, in his pronouncement refusing adjournment, he also with finality pronounced judgment in the same breath. Counsel had no

further opportunity to apply to be heard in final submissions. In my judgment, this was another serious error which caused injustice to the parties and was very prejudicial to the respondent. The result of these twin injudicious exercise of discretion was fatal to the whole trial and as I shall soon show, they led to disastrous consequences. In my opinion, this finding would be sufficient to dispose of the appeal in favour of the appellant but in order to determine the next course of action, the remaining two grounds of appeal must be determined.

$\ldots \rightarrow \ldots$

The second ground of appeal was that the learned trial judge erred in law and fact to have entered judgment against the appellant without giving any reasons at all. As the record of the court on 22/6/2000 shows, the learned trial judge did not give any reasons for his judgment, yet the law on this matter is very clear. Order 18 rules 4 and 5 of the Civil Procedure Rules states: -

- "Judgment in a defended suit shall contain a $RULE 4:$ concise statement of the case, the points for determination, the decision thereon and the reasons for such a decision". - $RULE 5:$ "In suits in which issues have been framed, the court shall state its finding or decision with reasons therefore, upon each separate issue, unless a finding upon any one or more of the issues is sufficient for the decision of the suit."

The above provisions are coached in mandatory terms. However, it is obvious that the learned trial judge totally ignored both of them. There is no doubt that this was a defended suit. The judgment should have contained a statement of the case, points for determination and reasons for decision on such points. At the beginning of the trial counsel agreed on four issues for determination. The learned trial judge did not make even a single reference to them or any one of them. In our legal system we are enjoined to conduct transparent trials and it is inconceivable that under such a system, a court should order a party to pay almost US\$60,000 without assigning a single reason! It is therefore imperative that every trial in a defended suit be concluded with a reasoned judgment as required by order 18 rule 4 and 5 of the Civil Procedure Rules. This ground of appeal should succeed.

$\frac{20}{1020}$ = 20

The third ground of appeal was that the learned trial judge did not evaluate the evidence on record and as a result: -

(a) Entered judgment for the respondent who had failed to prove her case. (b) Awarded damages of US\$58,398 which had not been specifically proved.

The respondent in her pleadings claimed that the appellant contracted to transport his goods worth US\$33,396 and that the transporter failed to deliver the goods at its final destination causing her the loss of goods and special damages of US\$25,000. When one looks at the record of the trial the following position is apparent: -

(1) The respondent consistently failed to prove the value of the goods which had been consigned to her from Jakarta. She was several times asked to

$10$ produce the documentation and she repeatedly promised to produce the documents but up to the end of the trial, she did not. As a result of this omission, it is impossible to tell whether the goods she claimed were removed from the container were actually there or not and what their value was.

$\mathcal{L} = \mathcal{L}$

- (2) Her clearing agent at the port of Mombasa (Patrick Mutume PW2) who was called to shed light on the value of goods he cleared on behalf of the respondent testified that the goods he cleared were worth US\$6300 only. When the respondent was called for cross-examination on the matter, she denounced her own witness and claimed that the document he had produced in evidence was a forgery on a blank document she got from Jakarta and gave it to the witness to fill! This was indeed very strange. - (3) In absence of evidence to establish the value of goods which were allegedly lost, it is difficult to tell on what basis she could claim loss of profits of US\$20,000.

In my judgment, the complaint that the learned trial judge did not evaluate the evidence at all is well founded. If he had done so, he would have found in answer to the issues which were framed that: -

(a) It was not proved that the respondents goods were lost; (b) The appellant was not liable for any loss of goods; (c) The respondent was not entitled to any damages at all.

This ground of appeal should succeed.

Finally, Mr. Byaruhanga learned counsel for the respondent requested that should the court be inclined to allow the appeal, a retrial should be ordered directing the trial court to take final submissions on the evidence on record and deliver judgment thereon.

With respect, I do not think that this option is available any longer. The respondent gave her evidence in the trial court and closed her case. This court is entitled under Rule 29 of the Rules of this Court to re-appraise that evidence, and come to its own conclusion as I have just done. I have come to the conclusion that the respondent failed to prove her case and was not entitled to any remedy. In reaching this conclusion, I have had the benefit of counsel submissions on the evidence on record and it would be a waste of time to go through the same exercise on a retrial.

In the result, I would allow this appeal, set aside the trial judges orders dated 22/6/2000 and dismiss the suit with costs here and in the High Court to the appellant.

$31<sup>d</sup>$ Dated at Kampala this...

JUSTICE OF APPEAL.

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

$\begin{array}{ccccccccc}\n& & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & &$

#### HON. LADY JUSTICE L. E. M. MUKASA KIKONYOGO, DCJ $^{\nu}$ CORAM: $\overline{ }$ HON. MR. JUSTICE G. M. OKELLO, JA. HON. MR. JUSTICE A. TWINOMUJUNI, JA.

## CIVIL APPEAL NO. 37 OF 2000

#### **BETWEEN**

### CRESCENT TRANSPORTATION CO. LTD.::::::::::::::::::::::::::::::::::::

$15$

$7()$

$\left| \cdot \right\rangle$

### AND

## NURU KAAYA :::::::::::::::::::::::::::::::::

(Appeal from the decision of the High Court (Okumu-Wengi, J) dated 22<sup>nd</sup> June in HCCS No. 1311 of 1999)

### JUDGMENT OF G. M. OKELLO, JA.

I had the chance to read in draft the judgment of my brother Justice Twinomujuni, フラ JA, and I agree that the appeal must succeed.

The circumstances of the case as revealed by the record of the proceedings warranted grant of adjournment sought. The failure of the witnesses for the appellant to appear in court on the adjourned date was likely to be due to their bona $\hat{s}(1)$ fide mistake in getting the adjourned hearing date wrong. This amounts to sufficient cause, more so, as the record shows that the witnesses had been appearing in court without default. The trial Judge's discretion to refuse the request for adjournment was therefore not, in the circumstances of this case, exercised on the established principle. $35$

$\mathbf{I}$

$\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$

The manner the trial Judge decided this case is also a matter of concern. The record shows that the respondent had completed examining her witnesses and had closed her case when the trial Judge entered judgment for her under 0 15 r4 of the Civil Procedure Rules He gave no reason for the judgment This was an error. Having $\overline{\cdot}$ decided to proceed therefrom under 0 15 r4, the learned trial Judge ought to have given his judgment on the evidence before him. That meant, that he should have permitted counsel for both parties, who were present in court, to address him on the evidence on record and the law before he gave his reasoned judgment. Reasoned judgment is not only accountability for the Judge's decision but is also a legal $10$ requirement. (See 0 18 r4 of the CPR) The position would have been different had it been the respondent (plaintiff) who failed to produce her witnesses after she had been given time so to do. Failure of a trial Judge to give reasons for his/her judgment casts clouds on to his/her transparency which is an essential in the path to justice. $15$

$g^{-1} \times \frac{1}{2} = \frac{1}{2} g^{-1} \times \frac{1}{2} = \frac{1}{2} g^{-1} \times \frac{1}{2} = \frac{1}{2} g^{-1} \times \frac{1}{2} = \frac{1}{2} g^{-1} \times \frac{1}{2} = \frac{1}{2} g^{-1} \times \frac{1}{2} = \frac{1}{2} g^{-1} \times \frac{1}{2} = \frac{1}{2} g^{-1} \times \frac{1}{2} = \frac{1}{2} g^{-1} \times \frac{1}{2} = \frac{1}{2} g^{-1} \times \frac{1}{2} = \frac{1}{2} g^{-1} \times \frac{1$

It was submitted by counsel for the appellant that in the event of the appeal being allowed, a retrial should be ordered. I do not agree. The circumstances of this case do not justify that option A remal is ordered only where the interest of justice requires it. One of the matters to be considered in that regard is whether on a retrial, the plaintiff would not be enabled to fill up gaps in her evidence at the trial.

$\mathbb{I}^{(1)}$

In the instant case, the interest of justice does not require a retrial to be ordered. The respondent who was the plaintiff at the trial, had closed her case. A retrial would offer her an opportunity to fill up gaps in her evidence at the trial. All that was required was evaluation of the evidence on record vis-à-vis the issues framed at the commencement of the trial and application of the law. Section 12 of the

$\overline{2}$

Judicature Statute No. 13 of 1996 and rule 29 (1) (a) of the Rules of this court empower this court to deal with that situation without having to order a retrial.

In the result, I would allow the appeal on the terms proposed by Twinomujuni, JA.

Dated at Kampala, this $3rd$ day of $A$ in $g$ $f$ 2001.

G. M. OKELLO

$\overline{10}$

$\overline{5}$

JUSTICE OF APPEAL

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CIVIL APPEAL NO. 37 OF 2000

### CORAM:

# HON. JUSTICE L. E. M. MUKASA -KIKONYOGO, DCJ HON. MR. JUSTICE G. M. OKELLO, JA HON. MR. JUSTICE A. TWINOMUJUNI, JA

# CRESENT TRANSPORTATION COMPANY LTD... APPELLANT

### ${\rm AND}$

NURU KAAYA..................................

(An Appeal from the decision of the High Court at Kampala by Hon. Justice Richard Oscar Okumu Wengi made on the 22<sup>nd</sup> June, 2000 in Civil Suit No.1311 of 1999)

#### $\frac{1}{2}$

$\vert$ ()

# JUDGEMENT OF MUKASA-KIKONYOGO, DCJ

This appeal is against the judgment of the High Court in Civil Suit No. 1311 of 1999 delivered on 22 June, 2000. The background of the case has been ably stated by Twinomujuni J. A. in his judgment. I need not reproduce it.

I had the opportunity of reading in draft the judgments prepared by Twinomujuni J. A. and Okello J. A. and I agree with them that the appeal should succeed.

The learned trial judge did not exercise his discretion judiciously when he rejected the appellant's application for an adjournment on 22 June, 2000. At the close of the respondent's case on 26 May 2000, Mr. Tayebwa, Counsel for the appellant, intimated to Court that one defence witness was out of the country but two witnesses were ready to give evidence. However, on the Court's own motion the hearing of the case was adjourned to 22 June, 2000 for all the three defence witnesses. Apparently due to a mistake of the date, the witnesses thought they were required to give evidence on 23 June 2000. They therefore, did not attend Court on 22 June 2000 the date to which the appeal had been adjourned

to.

$\mathcal{L}$

$\frac{1}{2} \times \frac{1}{2} \times \frac{1}{2} \times \frac{1}{2} \times \frac{1}{2} \times \frac{1}{2} \times \frac{1}{2} \times \frac{1}{2} \times \frac{1}{2} \times \frac{1}{2} \times \frac{1}{2} \times \frac{1}{2} \times \frac{1}{2} \times \frac{1}{2} \times \frac{1}{2} \times \frac{1}{2} \times \frac{1}{2} \times \frac{1}{2} \times \frac{1}{2} \times \frac{1}{2} \times \frac{1}{2} \times \frac{1}{2} \times \frac{1}{2} \times \frac{1}{2} \times \frac{1$

$\cdot \cdot$

$\left|\left\langle \cdot\right\rangle\right|$

In my view in the aforesaid circumstances, the learned trial judge should have allowed the adjournment and gave the appellant opportunity to produce its witnesses; especially as previously it had two witnesses in Court but the Court decided not to record their evidence.

In full agreement with my learned brothers on the coram it was also erroneous for the learned trial judge to enter for the respondent without first receiving judgment submissions from both counsel for the parties. The learned trial judge had a duty to evaluate the evidence adduced by the

$\overline{2}$

respondent who had closed her case to decide whether she had established her case on a balance of probabilities. Being a defended case, the learned trial judge was required by law to give a statement of the case and the reasons for the basis of his decision.

$\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$

$\overline{10}$

$1 \otimes \mathbb{R}$ $\mathbb{R}$

The appellant had challenged the evidence of respondent's witnesses in cross examination and its counsel had demanded for documentary evidence of the list of the lost property and its value to be produced. There were also the defence pleadings which the trial judge did not consider when he entered judgment for the respondent on the alleged failure by the appellant to produce its witnesses.

Order 18 rule 4 reads that:-

$\begin{array}{ccc} \cdot & \cdot & \cdot & \cdot \\ \cdot & \cdot & \cdot & \cdot \\ \cdot & \cdot & \cdot & \cdot \end{array} \qquad \qquad \begin{array}{ccc} \cdot & \cdot & \cdot & \cdot \\ \cdot & \cdot & \cdot & \cdot \\ \cdot & \cdot & \cdot & \cdot \end{array}$

$\overline{20}$

"Judgments in defended suits shall contain a concise statement of the case, the points for determination, the decision thereon, and the reason for such decision"

With regard to the submission of Mr. Tayebwa that should this Court allow the appeal a retrial should be ordered I would have been persuaded to order one if only the respondent had established her case. As the evidence stands on record the she did not on a balance of probabilities establish the loss she The documents she annexed to her plaint as suffered.

submitted by Mr. Tayebwa were not of any use as they did not assist her to prove her claims. In the premises it would be a wasted exercise to order a retrial. The circumstances of this appeal do not warrant this court's exercise of its powers under S. 12 of the Judicature Statute and Rule 29(1) (a) of the Rules of this Court.

$\frac{1}{10}$

As my brother Okello J. A. agrees with the judgment of Twinomujuni J. A. this appeal is allowed with all the orders in the terms proposed by the learned Justice of the Court of Appeal.

$\overline{4}$

Dated at Kampala this $3rd$ day of August, 2001

$\overline{20}$

L. E. M. MUKASA-KIKONYOGO DEFUTY CHIEF JUSTICE