KASIRYE, BYARUHANGA & CO. ADVOCATES v MUGERWA PIUS MUGALAASI (Civil Appeal No. 87 of 2008) [2009] UGCA 74 (4 June 2009)

Full Case Text

## THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMAPALA

## CORAM: HON. JUSTICE A. TWINOMUJUNI, JA HON. JUSTICE C. K. BYAMUGISHA, JA HON. JUSTICE S. B. K. KAVUMA, JA

## CIVIL APPEAL NO.87 OF 2008

### **BETWEEN**

## KASIRYE, BYARUHANGA & CO. ADVOCATES... APPELLANT

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MÜGERWA PIUS MUGALAASI........ RESPONDENT

> [Appeal from the orders of the High Court of Uganda at Kampala (A. Singh Choudry, J) dated 15th September 2008 in Mise. Appl. HCCS No.244 of 2008]

#### $30$ JUDGMENT OF TWINOMUJUNI, JA

This is an appeal from the ruling of the High Court against an order for injunction to restrain the appellant and four others from dealing with the property known as Block 12 Plots 200, 208 and 2009 Nakivubo Kampala which are subject of HCCS No.224 of 2008 now pending in the High Court against the said appellant and the four others.

The background to this appeal is as follows:

**CERTIFIED TRUE** COPY OF THE ORIGINAL Registrar of the Court of appeal Uganda

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On 14 ' AuguSt 2008, the respondent entered into a sale agreement with our people who are not parties to this appeal. The agreement was in respect ofBIock 12 Plots 206, 207 and 209 Nakivubo, Kampala. On 19"' before payment could be finalised, the sellers rescinded the ent trough the appellant firm of advocates who had acted as lawycis loi the lour vendors in the sale transaction. The vendors refused ovet title and to transfer documents of the land to the respondent.

On 26 August 2008, the respondent filed in the High Court Civil Suit 0 No.224 of 2008 against the four vendors together with the appellant as the 5 defendant. 2 he suit requested court for declarations that;-

(i) The defendants release Certificates of Title and Transfer Deeds to the plaintiff.

15 (ii) Permanent injunction to restrain the defendants from engaging in any further dealings in the suit property.

(iii) Costs ofthe suit.

On the same day, the respondent filed in the same court Miso. Appl. 20 No.444 of 2008 against the defendants in the civil suit seeking an order of temporary injunction to restrain them from transferring the, suit property into the names of any other person whatsoever until the civil suit is disposed of. This application was fixed for hearing on 15"' September 2008. On 27th August the respondent obtained a similar interim order.of 25 injunction from the registrar of the H igh Court restraining the defendants from transferring the suit land to any other person until Misc. Appl. No.444 is disposed of.

On 15th September 2008, the application came up for hearing before Hon. Justice Anup Singh Choudry in the Givil Division of the High Court. All the parties were represented. The record of proceedings shows that the court opened at 9.00 am-and-went on the whole morning. The record shows that the there was, throughout the entire morning, a dialogue between the trial judge and the three counsel who represented the parties. The exchange covers 23 pages of typed proceedings and ends with the following order of the learned trial judge:-

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Upon hearing counsel for the plaintiff, and for the first to fourth defendants and the fifth defendant, it is ordered that:

- 1. That the defendants be restrained from dealing with the property known as block 12 Plots 206, 208 and 209 Nakivubo Kampala, directly or indirectly through their agents, servants, or otherwise until the main suit is heard. - 2. The copy of this order to be served on the $2^{nd}$ Purchaser Ephraim Ntanganda. - 3. Both parties to serve and file the documents which they intend to rely on by way of proper bundles by $30^{th}$ September 2008 by $4.00$ p.m. - 4. Both parties to serve and file witness statements by 7th October 2008.

5. The 5th defendant to produce receipts showing monies received, had and paid out in respect of the sale and purchase of the property to both the purchasers. Receipts include voucher, bank statement, instruction, cash receipts,

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Registral of the Court of appeal Uganda

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hcque studs, transfer form, bank acknowledgement and confirmation,

- rhe original receipt book containing receipt No.3496 to be in rhe Comt. Plaintiff may inspect the same in the Court. - he electronic file ielating to the sale to both the purchaser by 5 defendant be served and filed in the courti - 8. Both sides to file skeleton arguments by 301" October 2008. - 9. Both sides include all the defendants.

10. Hearing to be fixed on 7th November at 9.00am.?

The appellant, who was the respondent in the above application, being dissatisfied with the above order filed this appeal. The appeal has three grounds of appeal as follows:- &gt;

- 1. The learned trial judge erred in law and fact', in that he wrongly granted the respondent a temporary injunction without any hearing at all and after verifying that the suit property had already been resold to a third party, and wrongly made orders relating to the main suit that was not before him at the material time. &gt; - 2. The learned trial judge erred in law and fact, arid denied the appellant a fair trial, when he wrongly omitted tlie mandatory Mediation and Scheduling Conference, ordered Hhe filing of documents, "Witness Statements" and "Skeleton Arguments", and then fixed a date for delivery of his "Judgment". - 3. The learned trial judge erred in law and fact and wrongly denied appellant a fair trial when he prejudged the case against the appellant by making conclusive pronounceihents against

the appellant on lho m,ln sul, whe" lho s""le was "0( bcforo the leaned judge.

At the-.hearing of this- appeal, Mr. K. A. Tibaijnka represented the appellant and Mr. J. M. Musisi represented the respondent. Mr. Musisi, g y in my view, declared that he conceded this appeal to the extent the entire proceedings were irregular and the orders resulting thcicfiom wetc not valid. He only wished to be allowed-to argue that despite that, the order of injunction granted by the trial judge is valid and should be upheld. When his request was granted, he submitted that there was before the trial judge sufficient evidence to justify the grant of the injunction especially the aliidavits ol the respondent dated 26lh August 2008 and that of One William Blick dated the 12th September 2008. He agreed that a retrial of Misc. Appl, No.444 of 2008 should be ordered before another judge but that the Order of Injunelio'h should be maintained.

**• 5** In conceding to thc appeal Mr. Musisi was reacting to Mr. Tibaijuka's submission that the proceedings were entirely invalid and had totally denied the appellant the right to be heard contrary to the constitutional provisions in article 28 and 44 of the (Msliliilion. Mr. Tibaguka nkso submitted that since the respondent never received a fair hearing, the order of injunction made against him cannot, and should not be allowed to stand. . &lt;

1 have looked al lho proceedings of thc High Court in Misc. Appl: No.444/2008 dated 15'" September 2008. Thc record reveals a procedure completely unknown and totally unacceptable in ourjurisdiction. Though the proceedings were about an order of injunction, the learned trial judge

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t0° many exlrar,eous maUera including d,c merits ofllCCS ■4 of2008 and totally forgot t0 dcal with |um In the process, both parties were never allowed to address the court on the matter before-if then. It was, to sayz the least, an-extraordinary court session, the likes of which I have noi come across in the common law legal systems. Since Mr. Musisi, learned counsel for the respondent conceded that the pioceedings were irregular and could not have afforded the applicant a fair hearing, I would refrain from putting my learned brother to any further task and only observe that to the extent that the io procedure denied the appellant a fair trial, it was invalid and no order made following the procedure should be allowed to see the light of any day. It follows that all orders of the court made on 15th September 2008 in the said Miscellaneous Application arc invalid and ought to be set aside, including the order of injunction made by the learned trial judge, to 15 the extent that it applies to the appellant in this appeal.

On 27th August 2008, his Worship Henry Haduli, the Deputy Registrar of the High Court made the following interim order:-

20 " this court does issue an interim order of injunction to restrain the respondents, their agents or any one acting on their behalf from transferring property comprised in block 12 plots 206, 207, 208 and 209 into the names of any other person until the hearing of the main application No.44 oi 2008."

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Since the order of this court on this appeal is to nullity the procecdmgs ol the High court in Miso. Appl. No.444 of 2008, this order of the Registrar will continue in force against the other parties who were not party to this

nL11 d lUUdl O1 M1SC' APPL No.444 of 2008, which is being ordered, is completed in the High Court.

In the result, I find merits in this appeal which is hereby allowed with the following orders.

- (a) The proceedings of the High Court and the orders made thereon on 15th August 2008 in Misc. Appl. No.444/2008 are hereby declared invalid. - (b) It is hereby ordered that Misc. Appl. No.444 of 2008 be remitted buck to the High Court for re-trial before another competent judge of the High Court. - (c) The order of Interim Injunction made b;y the Deputy Registrar of the High Court on 27lh August 2008 shall remain in force against the four respondents who were not parties to this appeal until the re-trail just ordered in this appeal is completed - (d) The costs ofthis appeal shall be in the cause. ?

20 Since my sister and brother their Lordships Justice C. K. Byamugisha, J. A. and Justice S. B. K. Kavuma, JA agree, it is accordingly ordered.