Kadara Jackson v Alituha Vincent (Civil Appeal 27 of 2009) [2012] UGHC 448 (12 December 2012)

## **THE REPUBLIC OF UGANDA • \*** IN THE HIGH COURT OF UGANDA **HOLDEN AT MASINDI** CIVIL APPEAL NO-HCT-12-CV-CA-0027/2009 (FORMERLY HIGH COURT FORTPORTAL CIVIL APPEAL NO-0057 OF 2006)

KADARA JACKSON APPELLANT , . . . . . . . . . . . . . . . . . . .

**VERSUS**

ALITHUHA VINCENT ...................................... **RESPONDENT**

#### **JUDGMENT**

#### $I\mathcal{O}$ BEFORE HON: MR. JUSTICE RALPH W. OCHAN-RESIDENT JUDGE

The Appellant, **KADARA JACKSON** appeals against the judgment of Hoima District Land Tribunal delivered on 17<sup>th</sup> November 2006 in HDLT CASE NO 0048 OF 2005. Nine grounds of appeal are put forward that:

- The members of the Tribunal were biased against the Appellant. $(1).$ - The Tribunal erred in violating the principles of equality before the $(2)$ . Law and natural justice to the prejudice of the applicant Appellant. - The Tribunal erred in both fact and law when they allowed the $(3)$ . existence of a counterclaim in contravention of mandatory Rules of 20 procedure on service of Counter-claims in Civil Proceedings. - The Tribunal erred in law and fact when they upheld prayers in $(4)$ . Counter-Claim when the same was time barred and further that no evidence was adduced in support of the Counter- Claim. - The Tribunal erred in not accepting the objection of the Appellant $(5)$ . that the Written Statement off Defence was served late upon the

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Appellant but the Tribunal failed to Consider the objection, this occasioning grave prejudice to the Appellant.

- $(6)$ . The Tribunal erred both in law and fact in not duly scrutinizing the evidence of the Appellant/Claimant. - $(7).$ The Tribunal erred in law and fact in that their contracts had exposed and therefore had no jurisdiction or authority to entertain the claim. - $(8).$ The Tribunal did not have adequate time to consider all the evidence before them as they conducted the matter in half a day. - $(9).$ The Appellant prays that Court allows this appeal or in the alternative order a re-trial before the LCI Court of the area.

The Respondent filed Written Submissions, addressing all the grounds of appeal one by one. The Appellant in turn filed Written replies to the Respondent's Written Submissions as follows:-

#### Bias against the appellant by the Tribunal. GROUND 1:

On this ground the Appellant agreed that the Tribunal was biased against 15 him in that in an earlier appeal by the very same parties, the Tribunal basing itself on procedure ruled in favour of the present respondent, ordering a retrial. Yet in the appellant's original claim NO 048 OF 2006, The same Tribunal overruled every evidence on procedure to the prejudice 20 of the appellant.

The appellant prays that court allows this ground of appeal or in the alternative, order a retrial before the LC Court of the area.

The Respondent filed Written Submissions, addressing all 9 grounds of Appeal. The Appellant in return filed written replies to the Respondent's submissions in reply. Subsequently both Counsel presented oral $25$ submissions in rein forming their written Submissions.

CERTIFIED TRUE $21/6/012$ REGISTMAN

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# **GROUND 1: BIAS AGAINST THE APPELLANT BY THE TRIBUNAL:-**

**VS A. K. DETERLENTS & ORS S. C. CIVIL APPEAL N0-07 OF 1988** *)O* is particularly instructive on the question of bias. My brother **RUGADYA ATWOKI,** <sup>I</sup> similarly found the authority of the S. C. in G. M **COMINED** very instructive. Justice Atwoki however went further and looked at the decision of stake **J in TUMAINI** V **REP (1972) EA 441** in which Court stated thus: <sup>I</sup> have perused the Record of Proceedings as well as the Written Submissions in addition to the Memorandum of appeal and the Response thereto. <sup>I</sup> have also reviewed the question of BIAS. Bias is very serious charge for if proven, will shake the very foundation of trust and confidence that must be hall mark of judicial institutions. There would be invalculable harm to society should the citizens lose their faith in the impartiality and' integrity of courts. The decision of the Supreme Court in **GM COMBINED**

*IV* "By 'Bias' <sup>I</sup> understand a real likelihood of an operative prejudice, whether conscious or unconscious. There must in my opinion be reasonable evidence to satisfy as that there is a real likelihood of bias. <sup>I</sup> do not think that the mere vague, suspicions of whimsical, capricious and no reasonable people should be made a standard to regulate our action here. It might be a different matter if suspicion rested on reasonable grounds was reasonable generated but certainly mere flimsy, elusive, morbid suspicions should not be a permitted ground of decision.

In this case having paid close attention to the submission of counsel for the appellant and the evidence on record, <sup>I</sup> find no evidence of bias on the part of the Tribunal. This ground of appeal fails.

/ coy 2<sup>a</sup> <sup>j</sup> ) <sup>U</sup> <sup>i</sup> z

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# **GROUND 2: VIOLATION OF THE PRINCIPLE OF EQUALITY BEFORE THE LAW AND THE PRINCIPLES OF NATURAL JUSTICE.**

deem appropriate: - **AUDI AERM PARTES-** Both parties to be heard. As <sup>I</sup> understand, the underlying idea behind the principles of equality before the law and natural justice is that both parties to a dispute shall be given equal opportunity to be fully heard by the Tribunal before which they bring their dispute. Both shall be given adequate time and space to articulate their case and offer their defences and call their witnesses as they

it's ni On the record of proceedings as well indeed in this Court both parties have been fully heard. Counsel for the appellant, in oral argument, submitted that failure by the Tribunal to visit the locus occasioned a violation of the' claimant's Natural Right. <sup>I</sup> am afraid <sup>I</sup> can not accept this reasoning. A visit' to the locus was not requested by the parties. Presumable the Tribunal in\* did not find it necessary to visit the locus. This ground fails.

## **GROUND 3: TRIBUNAL IRREGULARLY ALLOWED THE EXISTENCE OF A COUNTER CLAIM:**

At page 3 of the judgment, the Tribune! observed that trial proceeded as if there was no Counter ciaim as the parties who were representing themselves were not capable of arguing their Counter claims meanmgfully The matter therefore proceeded as if there were no counter ciaims by the respondent. This is clear from the fact that the Question question "of counter claim was not one ofthe issues forward for resolution

Secondly no where in the judgment is the pronouncement with respect to the issue of counter- claim. This ground of appeal therefore fails

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## GROUND 4:

This ground also fails as I found hat the Submissions in respect of the Counter claims was not supported by evidence on record and the law governing bias.

## GROUND 5: This ground also fails on the same ground that ground 1, 2 and 3 failed.

#### GROUND 6:

I have carefully perused the record of proceedings as well as the judgment of the Tribunal. I find no reason whatsoever to alter, vary or change the Tribunal's decision. The judgment was comprehensive and detailed. This ground of Appeal fails.

### GROUND 7:

I have looked at the sequence of events. The judgment having complained about was, is dated 19<sup>th</sup> November 2006, well within the life of Land Tribunals in Uganda. The matter was heard on 30<sup>th</sup> October 2006, also well within the life of the Tribunal: I find that the matter was heard and concluded within the lifetime of the Tribunal. I also agree that hearing and concluding a case within one day is not an irregularity. This ground of appeal also fails. For the same reasons above **GROUND 8** also fails.

#### Was abandoned. GROUND 9:

All grounds of appeals that were argued having failed this Appeal is dismissed with costs to the Respondent both here and at the Court below CERTIFIED TRUE

Signed; Ralph W. Ochan

**Resident Judge** 12/12/2012

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## KADARA JACKSON APPELLANT VERSUS ALITUHA VINCENT RESPONDENT **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT MASINDI CIVIL APPEAL NO HCT-12-CV-CA-0027/2009 (FORMERLY HIGH COURT OF FORTPORTAL CIVIL APPEAL NO-0057 OF 2006) DECREE**

before **Hon Mr. Justice Ralph W. Ochan** - Resident Judge Masindi, in the absence of Henry Rukundo of Kanyunyuzi & Co. Advocates^counsel for the Appellant and in the absence of Musinguzi Ian of Musinguzi & Co Advocates;counsel for the respondent., but in the presence of both parties. This appeal coming up for judgment on the 1st day of February 2012

It is hereby decreed that:-

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- 1) The Appellant's Civil Appeal No 0027/2009 fails - 2) The Appeal is dismissed with costs to the Respondent, both here and at the court below.

2012 Given under my hand and seal of the court This....3vST... day of

Lillian C. N Mwandha ASSISTANT REGISTRAR