Makubuya v UMEME Limited (Civil Application 18 of 2019) [2021] UGSC 31 (7 October 2021)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA **CIVIL APPLICATION NO. 18 OF 2019** (ARISING OUT OF CIVIL APPEAL NO. 01 OF 2019) (CORAM: OPIO-AWERI; MWONDHA; TIBATEMWA-EKIRIKUBINZA; MUGAMBA, TUHAISE, JJ. S. C)

### MAKUBUYA ENOCK WILLIAM

T/A POLLA PLAST:::::::::::::::::::::::::::::::::::: **VERSUS**

<table>

UMEME LIMITED:::::::::::::::::::::::::::::::::::: 15

#### **RULING OF THE COURT**

Makubuya Enock William T/A Polla Plast, hereinafter referred to as the applicant, brought this application under section 98 of the Civil Procedure Act, and Rules 2(2), 42 and 43 of the rules of this court, seeking orders that:

- The applicant be allowed to adduce fresh evidence in $i)$ form of: - a) Ruling and proceedings before the Electricity Disputes Tribunal vide App. No. EDT/07 of 2015 arising from HCCS No.534 of 2012. - b) A valuation report and invoices from M/s Mok Associates Certified Public Accountants on the value and worth of the machines which were the applicant's plant/factory and or be procured. - Costs of the application be provided for ii)

- The grounds for the application are stated in the notice of motion which is accompanied by an affidavit in support deponed by the applicant. The grounds also give the background to the application and are set out as follows: - a) The applicant filed HCCS No.534 of 2102 seeking for inter alia compensation for machines he lost as a result of economic loss caused by the respondent. - b) The High Court determined the matter in favour of the applicant hence referring it to the Electricity Disputes Tribunal (EDT) for evaluation of the Applicant's evidence on the machines lost and the amount or value for compensation. - c) The applicant obtained invoices detailing the value and or monetary worth of the applicant's machines including taxes and transport costs which altogether put the value of the machines at USD 6,422,984 as at the time of compiling the same. - d) During the proceedings before the Electricity Disputes Tribunal, the respondent appealed to the Court of Appeal and applied to stay the proceedings before the EDT which was granted therefore halting the valuation process. - e) The memorandum of appeal served on the applicant did not specify that the issue on the award for compensation had been appealed against, wherefore the applicant did not find any reason to adduce the said invoices. - f) The proceedings before the Electricity Disputes Tribunal were not deliberated upon by the learned Justices of Appeal yet the same were part and parcel of the High Court proceedings and judgment.

$\mathsf{S}$

- g) The issue concerning the compensatory order (special damages was nonetheless adjudicated upon by the Court of Appeal and the same is likely to be conclusively determined by this honourable court whereas the applicant still has a whole lot of evidence which had been adduced before the Electricity Disputes Tribunal, not present before court. - h) This honourable court has powers and discretion to entertain and grant the instant application for conclusive and comprehensive determination of this matter, and - i) It is just and equitable that this application is granted - Like indicated before, the above grounds were supported by an 15 affidavit deponed by the applicant. The details of the averments in the affidavit in support are on record and we do not intend to reproduce them. We will however highlight specific paragraphs of the same in the course of determining this application. - The application was opposed by way of an affidavit in reply 20 deponed by one Rogers Mugisha, a Legal Officer of the respondent. The sum total that can be gathered from that affidavit is that the instant application is incompetent, without basis and devoid of merit, and that the applicant is not entitled to the reliefs sought. - Mr. Mugisha further averred that the documents the applicant 25 intends to adduce as new evidence were all issued after the judgment of the High Court which was delivered on 15th February. 2015. He further contended that the evidence sought to be relied on was not even relevant at the time of making the decision by the - High Court. That as per the amended plaint filed in the High Court, 30 the applicant sought compensation for economic loss, loss of business and loss of company assets occasioned by the omissions

of the respondent but did not plead or pray for special damages. 5 That this is evidenced from the decision of the Court of Appeal when the matter went on appeal, which upon evaluation of evidence, awarded the applicant general damages as the applicant had not prayed for special damages. The respondent further contended that the applicant through the instant application is 10 trying to amend his plaint after judgment to introduce figures that postdate the date when the suit was filed and that this court should not allow the same.

M/s Lukwago & Co. Advocates represented the applicant while M/s Shonubi Musoke & Co. Advocates represented the 15 respondent.

#### **Submissions:**

For the applicant, it was argued that this court has jurisdiction under rule 2 of the rules of this court to entertain applications of such a nature, where court can admit additional evidence and that the instant application presents exceptional circumstances that warrant admission of additional evidence which is attached to the affidavit in support of the application. Counsel for the applicant went on to outline this evidence to include:

- a) Letter/report from MOK & Associates Certified Public Accountants addressed to the Registrar of the Electricity Disputes Tribunal marked as annexture H1. - b) Copies of invoices marked as annexture H2. - c) Certified copy of proceedings before the Electricity Disputes Tribunal marked as annexture 'I'.

- d) Correspondence between applicant's and respondent's lawyers during the hearing before the EDT marked as annexture 'J'. - e) Ruling by the Electricity Disputes Tribunal staying the valuation process marked as annexture 'K'. - To the applicant, Civil Appeal No. 01 of 2020 pending 10 determination before this court is hinged on the fact that the applicant pleaded and proved special damages and the trial court found so, save that the assessment and or valuation of the applicant's machinery was referred to the Electricity Disputes Tribunal. That consequently, the Court of Appeal erred in holding 15 that the applicant was not entitled to special damages when the issue was not canvassed during the hearing of the appeal before the Court of Appeal. - The applicant further submitted that the evidence sought to be adduced is of high relevance since he will be able to prove before 20 this court that he indeed pleaded special damages and more documents had been presented before the EDT for purposes of establishing the exact amount the applicant was seeking in compensation before the EDT. It was argued also that the MOK report and invoices are intended to show the cost for insurance 25 and freight, taxes and installation fees, and that the documents are not new to the respondent since she had already interfaced with them at the EDT. Citing the cases of AG and IGG vs. Afric Co-operative Society Ltd, Supreme Court Miscellaneous Application No.6 of 2012 and AG vs. The East African Law 30 Society Civil Appeal No.01 of 2013, the applicant submitted that

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this court has powers to allow a party to adduce additional $\mathsf{S}$ evidence.

Counsel for the applicant also submitted that this court being a second appellate court is not bound to re-evaluate evidence unless it is established that the first appellate court did not re-evaluate the evidence on first appeal. That the instant application presents the fact that the applicant's evidence for proof of his destroyed business was not evaluated by the trial court and the first appellate court, and therefore, the applicant intends to move this court under section 7 of the Judicature Act during the hearing of the appeal to evaluate his evidence adduced in proof of the machines destroyed and award him an appropriate remedy. To buttress this line of argument, the applicant cited **Fredrick J. K** Zaabwe vs. Orient Bank Ltd & 5 others SCCA. No.4 of 2006 and Mumbere vs. Uganda, Criminal Appeal No.15 of 2014.

For the respondent, it was argued that the applicant seeks to prove 20 special damages belatedly with invoices dated after the judgment of the High Court and that this attempt should be rejected. To the respondent, a party who alleges that they pleaded and proved special damages should not be allowed to prove the very special damages with additional evidence. It was also the contention of the 25 respondent that in the amended plaint, the applicant never prayed

for special damages and the same were therefore not proved.

Counsel submitted that the High Court directed that the applicant's property be valued for compensation by the Electricity

Dispute Tribunal to which the respondent was aggrieved, and as a 30 consequence, the respondent lodged an appeal to the Court of Appeal which appeal challenged the compensation award to the

applicant. That before the appeal could be heard, the respondent $\mathsf{S}$ sought and was granted a stay of execution of the decree of the High Court including the valuation of the machinery for purposes of compensation. The respondent also contended that at the hearing of the appeal at the Court of Appeal, the applicant did not submit on special damages and if he thought that it was necessary 10 to prove the special damages that he wants to prove before this court, he should have produced that evidence at the Court of Appeal but he did not, though he had the evidence. That rather, the Court of Appeal found that the facts before the trial court were sufficient to determine general damages. The respondent thus 15 contended that what the applicant seeks in the instant application is to amend the claim in the High Court and introduce a claim for special damages, adduce information that was not available at the time of hearing the suit in the High Court and adduce evidence that was already in his custody during the Court of Appeal hearing 20 but which he declined or ignored to adduce at that stage. To the respondent, this act by the applicant violates all known principles in proof of special damages, and adducing of evidence before this court. In support of this argument, the respondent cited **Attorney** General vs. Paul K. Ssemwogerere & 2 others, Supreme Court 25 Constitutional Application No. 02 of 2004 and Hon. Anifa Bangirana Kawooya vs. National Council for Higher Education

In Conclusion, counsel for the respondent submitted that the evidence sought to be adduced by the applicant before this court 30 is not new and fresh as the same was available in 2015 before the hearing of the appeal at the Court of Appeal and that there was no

SCCA No. 08 of 2013.

attempt by the applicant to introduce the same at that Court. The $\mathsf{S}$ respondent prayed for the dismissal of the application.

## Determination of the application:

At the commencement of hearing, the applicant requested Hon. Justice Opio Aweri to recuse himself on the ground that his son was working for the respondent. The request was declined and the court reserved its reasons for refusing to grant that request.

Recusal arises in circumstances where a judicial officer abstains from participating in legal proceedings due to conflict of interest of the presiding judicial officer. See Paragraph 4 of the

#### Constitution 15 (Recusal of Judicial $Officers)$ (Practice) Directions, 2019.

A Judicial Officer may recuse him or herself upon the following grounds;

- a) Where the judicial Officer is a party to the matter - b) Where he or she is closely related to any of the parties in the matter - c) Where he or she has pecuniary or other interest in the outcome of the case - d) Where the appellate judicial officer handled the matter in the lower court - e) Where he or she prepared a legal instrument that is in issue in the matter at hand - f) Where a judicial officer is a friend of any of the parties

However, a judicial officer is not bound to recuse himself or herself simply because allegations of bias have been raised. The 30

allegations must be substantial and not merely ploys by advocates $\mathsf{S}$ or parties to have the judicial officer recused.

In applying the test for recusal, courts have recognized a presumption that judicial officers are impartial in adjudicating disputes. This is based on the recognition that legal training and experience prepare judges for the often-difficult task of fairly 10 determining where the truth may lie. The test should be applied on the assumption that a reasonable litigant would take these considerations into account. A presumption in favour of a judge's impartiality must therefore be taken into account in deciding whether such a reasonable litigant would have a reasonable 15 apprehension that the judicial officer was or might be biased. See. Misceallaneous Application No. 03 of 2021, arising from Presidential Election Petition No.01 of 2021, Kyagulanyi Ssentamu **Robert** versus Yoweri **Kaguta** Museveni Tibuhaburwa & 2 others. 20

In Prof. Isaac Newton Ojok versus Uganda, Supreme Court Criminal Appeal No.33 of 1991, this court observed thus;

".............. in order to find whether a judicial officer was biased, it is necessary to consider whether there was a real likelihood of bias by considering whether the judicial officer labored under a pecuniary, proprietary or kindred interest. After the judicial officer has passed that test, then it may be necessary to verify whether the particular judicial officer's act or conduct satisfied reasonable persons that the court was impartial and unbiased".

The applicant's contention was that the son of Hon. Justice Opio-Aweri was working with the respondent, the reason she sought the recusal of the learned Justice. Relating that request with the $\mathsf{S}$ principles analyzed herein, the said judge indicated that that was baseless and unfounded as the son in question is neither a party nor an advocate appearing in the instant matter and declined to recuse. Judicial Officers take the judicial oath to adjudicate matters fairly, impartially and without fear or favour, affection or 10 ill will and always endeavor to do right to all manner of people in accordance with the Constitution. To say that because one of the members of the Coram is a father to an employee of the respondent without producing credible evidence of bias would in itself be unjust and be a betrayal of the judicial oath on the part of the 15 learned justice if he were to recuse himself. On the whole therefore, it was found that the application seeking the learned Justice's recusal was misconceived. It is accordingly dismissed.

## Consideration of the Merits of the Application:

In determining this application, we have fully considered the 20 pleadings, the submissions by respective counsel, the authorities cited and the law in their entirety.

The instant application was brought under Rules 2(2), 42 and 43 of the rules of this court. Rule 2(2) basically provides for the inherent powers of this court in as far as the court can make such 25 orders necessary for achieving the ends of justice while rules 42 and 43 provide for the form of application to be filed in this court. It would therefore appear that the pertinent law that the applicant relies on to commence this application is rule 2(2) of the rules of this court. The applicant also cites section 98 of the Civil Procedure 30 Act as the other enabling law whose import is similar to rule $2(2)$ of the rules of this court. Having laid that background as to the

Page 10 of 17

enabling law the applicant relied on, we will now proceed to $\mathsf{S}$ consider the merits of the application.

The principles that guide in determining applications of such a nature are well settled. This court has in similar applications restated those principles and they include;

- Discovery of new and important matters of evidence which, $\dot{1}$ . 10 after the exercise of due diligence, was not within the knowledge of, or could not have been produced at the time of the suit or petition by, the party seeking to adduce the additional evidence. - ii. It must be evidence relevant to the issues 15 - It must be evidence which is credible in the sense that it is iii. capable of belief. - The evidence must be such that, if given, it would probably iv. have influence on the result of the case, although it need not be decisive - The affidavit in support of an application to admit v. additional evidence should have attached to it, proof of the additional evidence to be given - The application to admit additional evidence must be vi. brought without undue delay.

## See; Attorney General vs. Paul K. Ssemwogerere & 2 others, (Supra) and Hon. Anifa Bangirana Kawooya vs. National Council for Higher Education (Supra).

To the instant application, the applicant has to, firstly satisfy this court that the evidence he seeks to rely on is new and important, 30 and that it is evidence which, after the exercise of due diligence

was not within the knowledge of, or could not have been produced $\mathsf{S}$ at the time of the suit or petition.

We have had the occasion to peruse the notice of motion and the accompanying affidavit with the annextures thereto. Under paragraph 3 of the affidavit in support, the applicant lists documents that he states, he relied on in proving his claim for compensation in the High Court. This is re-emphasized in paragraph 4 when the applicant states;

"That during the hearing, I relied on all the reports and the list of machines to claim for compensation from the High Court for *the loss of my machines".*

It is on the basis of those documents that the High Court decided in favour of the applicant as per paragraph 5 of the affidavit in support. According to the judgment of the High Court (Annexture 'F' to the affidavit in support), the compensation that was to be paid to the applicant was to be enforced by the Electricity Disputes Tribunal which tribunal was to appoint a valuation surveyor for that purpose.

Having referred the matter to the Electricity Disputes Tribunal, it was conclusive that the tribunal was to determine the compensation to be paid to the applicant on the basis of what had 25 been proved before the High Court. However, under paragraph 7 of the affidavit in support of this application, the applicant states that his former lawyers forwarded to the Tribunal invoices prepared by MOK & Associates, Certified Public Accountants, reflecting the market value of the machines inclusive of transport 30 costs and taxes for the said machines, appearing on the list which he presented before the High Court. The Invoices herein referred

$\mathcal{C}^{\mathcal{A}}$

to are attached to the affidavit in support of the application and $\mathsf{S}$ marked H2.

A critical look at the invoices in reference (H2) indicate that they are dated 12.03.2015. The High Court delivered its judgment on 9th February, 2015. This means that the invoices were prepared after the delivery of the decision of the High Court. Like we 10 indicated earlier when we made reference to paragraph 4 of the affidavit in support of this application, the applicant stated that he relied on all the reports and list of machines to claim for compensation. One would wonder if the list of machines submitted by the applicant before the High Court did not have a price value 15 for the said machines, how then would the court have determined the compensation? What the Electricity Disputes Tribunal was to do was to appoint a valuation surveyor who was to assess the compensation to be paid to the applicant on the basis of the evidence adduced before the High Court but not to prove the 20 compensation before the tribunal as the same had already been proved before the High Court. Relatedly, the applicant himself avers in his affidavit that he produced all the reports before the High Court. In effect therefore, this evidence cannot be said to be new as the list of the machines and their corresponding monetary values ought to have existed before or at the time of institution and or hearing of the suit in the High Court. Further, the applicant has not demonstrated through his affidavit that due diligence was exercised by him as to the existence of the said invoices prior to the institution of the suit, let alone that the same could not be produced at the time of hearing the suit.

Secondly, the instant application emanates from a second appeal, $5$ the first appeal having been heard and determined by the Court of Appeal. One wonders why the applicant never sought leave of the Court of Appeal to have the evidence he now seeks to be produced on second appeal produced, at the time of hearing the first appeal. The excuse that the applicant gives in this regard is that the 10 memorandum of appeal filed by the respondent at the Court of Appeal never had a ground concerning the award of compensation for the machines and that the appeal proceeded entirely on the grounds which had been raised for determination by the respondent. 15

We have had the benefit of looking at the memorandum of appeal attached to the affidavit in reply marked annexture 'D', and ground 3 in the memorandum states as follows;

"The learned trial judge erred in law and fact when he held that the appellant was responsible for the loss of the respondent's machines and was liable to compensate the respondent for the same yet, inter alia, the same had been sold *pursuant to a suit in which the appellant was not a party".*

From the above, it is evident that the applicant's excuse is not plausible but self-defeating when he states that no ground was 25 raised in regard to the compensation order. That notwithstanding, we do not think that all legal avenues for the applicant to seek production of additional evidence at the Court of Appeal had been closed to him. The leave he is seeking now to produce additional evidence ought to have been sought at the Court of Appeal but the 30 applicant chose not to do that. Overall, we find no merit in the applicant's arguments in regard to production of additional

evidence on second appeal. He fell short of the requirements $\mathsf{S}$ governing the grant of orders of this nature. Most importantly, the first principle which is to the effect that the evidence sought to be admitted must be new and important, which after exercise of due diligence, was not within the knowledge or could not have been produced at the time of hearing the suit. 10

The other issue that raised a lot of controversy relates to the argument as to whether the applicant in his claim in the High Court pleaded special damages. Counsel for the applicant submitted that the appeal from which this application emanates (Civil Appeal No.01 of 2020) is hinged on the fact that the applicant pleaded for and proved special damages.

It is trite law that special damages have to be specifically pleaded and strictly proved. See; Musoke David vs. Departed Asians Property Custodian Board, Supreme Court Civil Appeal No.01

of 1992, [1990-1994] E. A 219 and Borham-Carter vs. Hyde 20 **Park Hote** [1948] 64 TLR, 177. We have had occasion to peruse the amended plaint (annexture 'A') to the affidavit in support of the application filed by the applicant in the High Court. That plaint does not show that the applicant indeed pleaded special damages as required by our rules of procedure. This is evident from the 25 decision of the High Court where the trial court made declaratory orders, awarded general damages, interest and costs of the suit but made no order as to special damages. A similar award of general damages, interest and costs was made by the Court of Appeal. Neither the pleadings nor the decisions of the courts below 30 talk of special damages. What the applicant is attempting to do indirectly is to amend his plaint on second appeal to include

$\mathcal{L}^{\mathcal{L}}$

special damages. In our view, this is not legally tenable and the $\mathsf{S}$ same cannot be sustained. We decline to allow the applicant to indirectly amend his plaint on second appeal.

As to the issue whether the ruling and proceedings of the Electricity Disputes Tribunal can be described as evidence and therefore admissible, it is our view that these cannot be treated as 10 such but rather, the same can form part of the record of appeal if at all the applicant finds them relevant to his case. This is strengthened by the applicant himself when in ground 'F' of the application, he describes these as proceedings. Consequently, if the applicant desires the ruling and proceedings of the EDT to form 15 part of the record, he should move the court under the appropriate rule to have them filed as a supplementary record.

Consequently, we find that the evidence the applicant seeks to produce now (the valuation report and invoices from M/s MOK Associates Certified Public Accountants) ought to have been 20 produced at the time of hearing the suit before the High Court or in the Court of Appeal and cannot be produced on second appeal.

The other issue we considered is whether there was a delay in bringing the instant application. Counsel for the respondent argued that the application was brought six months after filing the 25 appeal and that this amounted to undue delay on the part of the applicant which fact was not disputed by the applicant. Six months after filing the appeal and then belatedly file the application cannot be taken to be commencing the application without undue delay. We find that there was dilatory conduct on 30 the part of the applicant to file this application.

In the final result, we find no merit in the instant application. In $\mathsf{S}$ the premises, we decline to grant the orders sought and accordingly dismiss the application. Costs to abide the outcome of the main appeal.

Dated at Kampala this.................................... 10

**RUBBY OPIO-AWERI** JUSTICE OF THE SUPREME COURT

FAITH MWONDHA JUSTICE OF THE SUPREME COURT

L'usatemme

PROF. TIBATEMWA-EKIRIKUBINZA JUSTICE OF THE SUPREME COURT

PAUL MUGAMBA JUSTICE OF THE SUPREME COURT

PERCY NIGHT TUHAISE JUSTICE OF THE SUPREME COURT

Delivered by the Registra 7/10/21 South