Nantongo and 28 Others v Gate Way Bus Services (Civil Appeal No. 66 of 2019) [2022] UGCA 199 (29 July 2022)

### THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

## CIVIL APPEAL NO.66 OF 2019

(Arising from High Court Miscellaneous Application No.79 of

2007 arising from Consolidated Civil Suit No.45 of 2007)

1. NANTONGO CANDY

2. KAYEMBA PETER

$\mathsf{S}$

3. NABWAMI LYDIA

4. NAKABUUBI SOFIA

#### 10 5. KATABALWA CHARLES

6. NALUKWAGO SAFINA

7. NAKUYA RITAH

8. MUYUNGA F

9. NABAYUNGA SSALONGO

#### 10. KAYEMBA PETER 15

11. NABWAMI LYDIA

12. KATABALWA CHARLES

13. NAMAWANDA JANE

14. NAMYALO CATHERINE:::::::::::::::::::::::::::::::::::

- 15. NAKUYE CLENTIA 20 - 16. NAKAFERO SCOVIA - 17. NAKYEWA MAURICE - 18. NALUKWAGO PROSSY - 19. KANAKULYA JOSEPH - 20. MUGALULA JOSEPH $25$

2L. SSEqIAIYKATIBO MIKE

22. NALUBIMBA LILIAN

23. NANSENKO MARY F

24. SSEI(YEWA G. U/

5 25. LUBBGA JOHN

> 26. MUGE. IERA CEASAR

27. NAXINTU FLAVIA

24. MUTAZIBWA

29. NSAMBA ANORL

## VERSUS

# GATEWAY BUS SERVICES: : : : : : : ; : : : : : : : : : : : : : : : : : : : : : : : : : : : : :RESPONDENT CORAM: HOI{. JUSTICE CATHERINE BAIIIUGEMEREIRT,JA HON. JITSTICE STTPHEN MUSOTA, JA HON. WSTICE MUZAMIRU M. KIBEEDI, JA

# JUDGMENT OF HON. JUSTICE STEPHEN MUSOTA,JA

This is an appeal from the ruling of the High Court at Masaka by Oguli Oumo J. dated 29 June 2015 in High Court Miscellaneous Application No.79 of 2OO7, arising from Consolidated Civil Suit No.45 of2OO7.

# Backeround of the Appeal

On or about the 30th July 2004 an accident occurred on the Kampala-Masaka Road involving the Respondent's Motor Vehicle. The appellants claimed that the said Motor Vehicle was being driven

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negligently and the accident was solely due to the negligence of the Respondent's driver. They accordingly claimed damages resulting from negligence.

As a result of the accident, some of the appellants Nantongo Candy, Kayemba Peter, Nabwami Lydia, Nakabuubi Soha, Katabalwa Charles, Nalukwago Safina and Nakuya Ritah filed Masaka High Court Civil Suit No.45 of 2OO7 against the Respondent as defendant.

Subsequently Muyunga F, NabaSrunga Milly, Kabogere Ssalongo, Kayemba Peter, Nabwami Lydia and Katabalwa Charles hled Masaka High Court Civil Suit No.46 of 2OO7 against the Respondent as defendant.

Thereafter, Namawanda Jane, Namyalo Christine, Namakuye Clementia, Nakafeero Scovia, Nakyewa Mauricia, Nalukwago Prossy, Kanakulya Joseph, Mugalula Joseph, Ssewankambo Mike, Nalubimba Lilian, Nanseko Mary Florence, Sse\rewa G. W, Lubega John, Mugejera Ceaser, Nakintu Flavia, Nanteza, Mutazibwa and Nsamba Arnorl filed Masaka High Court Civil Suit No.440 of 2OOZ against the Respondent as defendant.

On 23.d March 2011 the Respondent frled Miscellaneous Application No.33 of 2Ol1 for consolidation of the Civil Suits which was granted. On 14th July 2014 the Respondent filed Miscellaneous Application No.79 of 2Ol4 arising from the Consolidated Civil Suit No.45 of 2OO7 seeking orders that; 20

- al The claimants in the aboue suit are concocted, fictitious, illegallg before court with no locus standi. - bl The claims bg some of the plaintiffs in the aboue consolidated ciuil suit are time barred and should accordinglg be dismissed - cl The Aduocate acting on behalf of the Plaintiffs in the aboue consolidoted ciuil suit does not haue instructions and is thus not properlg before the court - df Costs of the application be prouided for.

The appellants filed three affidavits in reply to the application opposing and prayrng for its dismissal. On 25th May 201S Miscellaneous Application No.79 of 2Ol4 came up for hearing. The parties prayed to lile written submissions and court granted that prayer and parties indeed filed written submissions as directed by the Court. 10

- 15 On the 29th June 2OL5, Court gave its ruling allowing the application with the following orders; - 7. That the claimants in the aboue suit are concocted, fictitious and illegallg before court with no locus standi - 2. That the cloims bg some of the plaintiffs in Consolidated ciuil suit No.45 of 2OO7 are time barred and are accordinglg dismissed - 3. Counsel for the plaintiffs is herebg ordered to pag the Applicant's costs of the suit personallg as he ought to haue known that the suit was barred bg the statute of limitation and that the plaintiffs are fictitious and concocted.

PaBe 4 of 24

The appellants were dissatisfied with the ruling and orders of the High Court and lodged this appeal.

## **The Appeal**

The Memorandum of Appeal the appellant raises the following grounds of appeal; $\mathsf{S}$

- 1. The Learned trial Judge erred in law and fact when she dismissed consolidated Civil Suit No.45 of 2007 Nantongo Candy and Others vs Gateway Bus Services without giving the appellants a fair hearing. - 2. The trial Judge erred in law and fact when she ruled that 10 the claims by the Appellants/Plaintiffs in consolidated Civil Suit No.45 of 2007 Nantongo Candy and Others vs Gateway Bus Services are time barred - 3. The Learned trial Judge erred in law and fact when she ruled that the plaintiffs in consolidated Civil Suit No.45 of 2007 Nantongo Candy and Others are concocted, fictitious and illegally before court with no locus standi. - 4. The learned trial judge erred in law and fact when she ordered that counsel for the appellant pays the costs of the dismissed suit. - 5. The learned trial Judge erred in law and fact when she condemned counsel for the appellants to pay costs of the dismissed consolidated suit without giving him a fair hearing

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- 6. The learned trlal fudge etred ln law and fact uhen she Tgnored. tlulr submissions and. therebg arrlvlng at a wrong concluslon - 7. The trlal Jud,ge etted ln law when she falled, to sffike out the affid,avlt of Joan Keffi,ma ln Mlsceltaneous Appllcatlon No.79 oJ 2O74 for telllng obrious falsehoods - 8. The leorned trtal Judge ened ln law and fact uhen she falled to find that the respondent's fallure to file an aJftd,avlt ln reJolnder and submlsslons tn replg u)as an admlsslon of the appellant's annnnents.

The Appellant proposes that this Court grants orders that;

- 7. The orders of the leqrned trlal fudge dlsmlsslng consolldated Cfurll Suit No.45 of 2OO7 Nantongo Candg & Others vs Giatcwag Bus Senld,ces be set a.slde - 2. The file be sent to another Judge to contlnue the lrcarlng oJ consolld.ated, Chtll Sult - 3. The appellants pragfor costs ln the lower court and. court oJAppeal - 4. TIE orders dlrectlng the Appellants'qduocate to pag costs otthe sult be set asld,e - 5. The Appellants'o,dvocate pragsfor costs of the louer cour-t, and tlu court of Appeal.

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## [,epresentations / appearances

At the hearing of the appeal, Mr. Wakabala Herbert appeared for the Appellants and Okong Innocent of Kob Advocates appeared for the Respondent. All parties adopted their scheduling notes and submissions as their arguments in this appeal. Court will consider the parties' submissions in determination of the grounds of this appeal.

# Duty of thls court ae a flrst appellate court.

This is a first appeal arising from the decision of the High Court in exercise of its original Jurisdiction. It is therefore important for this court to remind itself of its duty as a lirst appellate court. The duty of a first appellate court is well settled. In the case of Klfamunte Henry v Ugandd (Supreme Court Crlmlnal Appeal No.7O of 7997) it was held that 10

sThe first appellate couri has a duty to reulew the evld.ence of the case and, to reconslder the materlals beJore tlw trtalJudge. The appellate Cour-t, rnust then rmake up tts ou;n mlnd not dlsregardlng tlufudgment appealed. from but carefullg utelghtng qnd conslderlng lt. When the questlon arlses as to whlch urltness should. be belleued rather than o;nother qnd that questlon tutzts on m,o;nner and, d,emcanour the appellate CourA must be gulded by the lmpresslons made on the Judge uho so,w the uitnesses. Howeuer, there mag be other ciratm.stsnces qulte apart, from

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manner and demeanour, which may show whether a statement is credible or not which may warrant a court in differing from the Judge even on a question of fact turning on credibility of witness which the appellate Court has not seen. See Pandya vs. R. (1957) E. A. 336 and" Okeno vs. Republic (1972) E. A. 32 Charles B. Bitwire ys Uganda - Supreme Court Criminal Appeal No. 23 of 1985 at page 5.

The duty of the Court of Appeal to re-appraise evidence on an appeal from the High Court in its original jurisdiction is set out in rule 29 10 **Rules of the Court of Appeal** as follows;

> "30(1) on any appeal from a decision of a High Court acting in the exercise of its original jurisdiction, the <pre>court may;</pre>

> (a) re-appraise the evidence and draw inference of fact,

> (b) in its discretion, for sufficient reason take additional evidence or direct that additional evidence be taken by the trial Court or by commissioner;

$\mathsf{S}$

(2) ………………………………………………………………………………………………

<pre>(3) ....................................

I shall abide by this duty as I resolve the issues in this appeal.

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# Conslderation of the Appeal

I shall deal with the grounds of Appeal in the order in which they were raised in the Memorandum of Appeal starting with ground 1 all through to ground 8.

5 Giround 7 Trw Learned fltal Judge erred ln law and fact when she dlsmlssed consolld,atEd, Chrll Sult No.45 of 2OO7 Nantongo Candg qnd. Others as ktcutag Bus Senices uithout gtutng the a;ppellants a falr heol{ng.

The Appellants'submission on this ground of Appeal is that the trial Judge did not give the plaintiffs a fair hearing yet the trial Judge ought to have found out whether parties were around or not. Further that they were condemned unheard yet the right to a fair hearing is unon-derogable" under Article 44 of the Constitution. 10

The Respondent's submission is that any hearing in respect of Civil Suit No.45 of 2OO7 is independent of the hearing of Miscellaneous Application No.79 of 2014. That the latter application was concerned with the propriet5r of Civil Suit No.45 of 2OO7 before the court. Therefore, the right to a fair hearing in the circumstances did not apply to the appellants because they were not properly before the Court in Civil Suit No.45 of 2OO7 . That there was no derogation from the right to a fair hearing because it did not apply to the Appellants ln rssue. 15 20

# Determinatlon of Ground 1:

Contemplated in a fair hearing is a fair opportunit5z to be heard. One cannot act fairly without giving the victim an opportunity to be heard. This entails; the right to present evidence, to cross examine, and to have findings supported by evidence. See Electlon Petitlon Appeal No. O4|2OO9; Bakaluba Peter Mukasa versua Nambooze Betty Baklreke. The right to a party to be given an opportunity to give his or her own evidence if he so chooses in his or her defence and that he should if he or she so wishes call witnesses to support their case is paramount. The principles of a fair hearing include but are not limited to prior notice, adjournments, cross-examination, legal representation and disclosure of information. There is a duty of giving the person against whom the complaint is made a fair opportunity to make, correct or to controvert any relevant statement brought forward to his prejudice.

In the instant appeal I am inclined to agree with the submissions of Counsel for the Respondents on ground 1 of appeal and find that Miscellaneous Applicatlon No.79 of 2OL4 was clear on the claim that the appellants were frctitious and had no cause of action or locus 20 standi to lodge the suit. The application was served on the appellants' counsel and indeed he responded to the application through the Affidavits of Wakabala Susan dated 6s August 2014, Namyalo Catherine dated 11s May 2015 and of Nakabuubi Sophia dated 3Oo April2015. Nothing stopped the appellants to file an affidavit in reply to the application for each of the Appellants to prove that they were not fictitious and describing the nature of their claim/cause of action. They had the opportunity to do so but chose not to take it on. The appellants in my view were given a fair opportunity to be heard. There was indeed a fair hearing given to the appellants by the trial Judge. They were given opportunity to file their written submissions, file their affidavits in reply and their advocate of choice was given an opportunity to appear in court and address the court as demonstrated by the record of proceedings in Miscellaneous Appllcatlon No.79 of 2o14,

For the reasons I have stated above, I find no merit in this ground of appeal.

# @ound 2. The trlal &tdge erred ln lqw and fact uthen she niled tha;t the clallms bg the Appellants/Plalnttffs ln consolldqted, Ciull Suit No.45 of 2OO7 Nantongo Candg and, Others us Giatcway 8us Senrlces are,tlmc baned 15

## The appellants' submissions.

The appellant submitted that section 3 of the Limitatlon Act Cap 80 allows a claimant who claims general damages for negligence and personal injuries to bring that claim within a period of 3 years. That the accident in question in this case occurred on 30tt July 2004. That the suits under personal injuries were filed on 19th July 2007 and 30fr July 2007 well within the limitation period of three years. That 20

the case of Muyrnga Florence vs Gateway Bus Services the was filed on the 19tt July 2007 within the limitation period of three yea-rs.

5 That whereas the sectlon 6(31 of the Law Reform Mlscellaneous Provlslons Act states that such suits shall be brought within a period of one year. The old law which is section 8(2xii) of the 1953 Law Reform Miscellaneous Provisions Ordinance is the replica of section 6(3) of the Law Reform Miscellaneous Provisions Act Cap 79. That the 1953 Ordinance amended the law and substituted the phrase "shall be commenced within 12 calendar months after the death of the deceased" with the words 'shall be commenced within three years after the death of the deceased". That the substituted words were omitted and not included in the new law. That the commissioner instead of producing the amendment to read three years the old provision was left to read one year. That as such the right law to be relied on is Section 36 of the Limitation Ordinance 1958. The accident in the instant case occurred on 30th July 2004 and the suit was filed on the 19th July 2OO7 well within the 3 years. 10 15

#### Respondent's submisslon.

The Respondent submitted that the suit in contention was filed in 2OO7. That under the provisions of the Law Reform (Miscellaneous Provisions) Act Cap 79, this made it subject to the provisions of the law therein, specifically section 6(3) of the Act which limits the commencement of suits brought therein to twelve calendar months from the death ofthe deceased person. The record ofCourt reflects a copy of the Police Form 37 which documents an abstract of 20 25

particulars of an accident involving a motor vehicle. That the date of the accident, which is also the date at which the late Serwanja Mohammed passed on is reflected as the 30tt'July 2004. This means that the claim was brought around three years from tl:e date of the death ofthe deceased.

The commencement date of the Law Reform (Mlscellaneous Provisionsl Act Cap 79 is indicated as the 3.d December 1953. Therefore, court ought to disregard the misapplication of the Limitation Ordinance of 1958 as the same is not the applicable law to the facts in issue. That the appellants'claim was therefore barred by limitation in regard to time and therefore this Court should uphold the findings of the lower Court and dismiss the same for being time barred.

# Determinatlon of Ground 2:

I observe that the plaints in all the civil suits which were filed were poorly drafted. Counsel for the Appellants appears to have been trying to circumvent the limitation law and, in the process, did a bad job of drafting the claims. Nevertheless, I find that in dl the plaints filed in court none of them was brought under the Law Reform (Mlscellaneous Provlslons) Act Cap 79. The claims were straightout claims of negligence which resulted in personal injuries for which all the plaintiffs claim damages. The advocates on both sides misdirected their submissions when they relied on Cap 79. 15 20

Therefore, I do not understand why the trial Judge applied the Law Reform (Miscellaneous Prouisions) Act Cap 79. Clearly the plaintiffs'

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case as per the several plaints in the different suits which were consolidated show that theirs was a claim in negligence. As such the trial Judge erred in law and fact in finding that the suit was a claim under the Law Reform (Miscellaneous Provisions) Act Cap 79 and as such time barred whereas not.

For the reasons I have state above I would find merit in this ground of appeal.

Ground. 3 The learned tri,al Judge erred ln lqw and Jact uthen slle niled, thrlt the platntlffs ln consolldqtad. Cirnl Sult No.45 of 2OO7 Nantongo Candg and Others are concoctad, ftctltlous and. lllegallg before court, utlth no locr.ts stqndl.

## The Appellants' submlsslons.

Learned counsel for the appellant on this ground of appeal that the English law Dictionary dehnes concoct to mean invent an excuse, explanation or story in order to deceive others. That Fictitious is also dehned to mean; not real or true, imagina4z or fabricated, nonexistent. l5

That on that basis there was no one fictitious as all the plaintiffs were manifested on the accident report dated 3Oth August 2004 and they even testified in court. That therefore this court should find that the plaintiffs are neither f,rctitious nor concocted.

## Respondent's submissions

Counsel's submission is that the learned trial Judges including Oguli Oumo J. several times asked the Appellants to produce proof that they were entitled to bring the suit. That the record shows that the appellant continually failed to provide that proof of their entitlement to bring the claim which eventually led to dismissal of the suit.

That the appellant's submission that the plaintiffs were manifested on the accident report is not enough to establish loqts standl. That this Court held in the case of Klthende Kalibogha & 2 Others vs Eleonora Wlsmer CACA No.34 of 2O1O that;

> "locrts standi is the right one has to be heard in a court of lqw or other appropriate proceeding...once one has a direct interest in a matter, then one is eligible to claim relief respecting that matter if that one's interest is being aduerselg affeded...such q one is sadd to haue loctts standi and his or her cause of action is disclosed...a cause of action is creqted in a person once that person has a igh[ the said ight is being uiolated and the alleged uiolator is liable."

In Gordon Sentlba & 2 Others vs Inspector General of Government SCCA No. O6 of 2OO8, the Supreme Court held that it is not the function of the Court to confer loctts standi on persons. Therefore, anyone to claim any relief from court ought to have the loctts standi to appear before the same and do so. That therefore the findings of the lower court ought to be upheld.

ReJolnder by the Appellants.

Page 15 of 24

In rejoinder, the Appellants'counsel submited that the appellants are existing persons and they even testified in court. That the appellants had locus standi because they had suffered personal injuries and others had lost their bread winners as a result of the accident caused by the respondent. That the respondent in its various written statements of defense did not at arry one time dispute the accident. As such at face value of the pleadings and testimonies in court, the appellants are existing persons who were properly before the court.

# Determination of Ground 3:

- On the onset I must state that I agree with the Appellants that the trial Judge erred in law and fact when she found that all the Appellants were concocted and fictitious. This is because in the Record of Appeal there is a Police Report showing that the following people were at the accident scene and were admitted at Masaka Hospital following the accident; 10 15 - I. Nalukwago Safina FlA26years of Kalagala - 2. Na-kabuubi Sofia Lumala F /A 29 years Kalisizo - 3. Kanakulya Michael M/J son of Late Nsubuga - 4. Step Mother -Namusoke - 5. Sekiwa George William M/J 12 years - 6. Buwanika of Kyango Kisungu Kalisizo - 7. Flavia Nakintu F/J l2yrs Daughter of Late Semuju

8. Kizito Mother-Babirye Nola

9. Namawanda Jane F/J

- 70. Nalryewa Mourine FIJ 14 Daughter of Mr. Kasangabroken Arm d/o Kisenyi Richard of Kyangwe - <sup>7</sup>7. Katusabe Tabias M/A 2lyrs of Kabira Bushenyi - 72. Musinguzi Hannington 31 yrs of Nsasi Ibanda - 73. Sekiika M/A24yrs of Nalukolo-fractured leg - 74. Serwada Kayemba M/A -Critical Condition - 15. Sewankambo Michael M/J 14yrs

- 76. Mutesasira Gonzaga F/J 12 yrs - 77. Nabwami Lydia 31 yrs (two broken legs/injuries) - 78. Mugarura Joseph M/A 17 years Pupil (P.7) of St. Mary's Kisunku P/S Kalisizo 10 - 79. Kasendwa Denis M/J 13yrs P.7 pupil - 20. Sembatya Edward M/J 13yrs P.6 pupil - 27. Sempera John Bosco M/J 10 yrs P.4 pupil - 22. Mwebe Paul M/J 14yrs P.4 pupil - 23. Mutasibwa Frank MIJ 12 yrs P.4 Pupil - 24. Katabalwa Charles 28yrs - 25. Nakakembo Scovia F/J lSyrs - 26. Nalubimba Lilimu F/J 15yrs - 27. Nanseko Florence F/J 15yrs - 28. Nantongo Kandida F/A 48yrs teacher - 29. Kayanja Yasin M/J 13yrs - 30. Namakoye Keremensia F/J 11yrs - 37. Kagatza Dan M/J 16yrs - 32. Mugesera Ceasar M/J l6yrs - 33. Nalukwago Meryan F/J l2yrs

# 34. Nakuya Rita F/A 26yrs

This clearly shows that the appellants, who also appear on the list, were not fictitious or concocted at all. For the reasons I have stated above, I would find merit in this ground of appeal.

## 5 bound 4 The learned trtal Judge er"ed ln law and fact uhen she ordered. that counselfor the appellant pags the costs ofthe dismissed sult

### Appellants' submlssions

Counsel for the Appellants submitted that there was absolutely no justification for the trial Judge to visit costs of the suit on the advocate as there was nothing wrong with the advocate. That the advocate did not engage himself in any unprofessional conduct by virtue of representing the clients. That in the circumstances this court should find that the learned trial Judge erred in law when she ordered that the advocate pays costs ofthe suit. 10 15

#### Respondentte submlssion

Learned counsel for the Respondent submitted that counsel for the Appellants showed a failure to advise his clients not to pursue the illfated litigation. The two or three litigants, in the presence of their counsel were asked several times to establish their locus stondi in Court and to actually produce all litigants in court and this led to several adjournments of the hearing of the matter in the lower court but they failed. That there was sufficient time for counsel to act

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professionally which he failed to do. That as such it was just and fair for the court to hold that counsel pays the costs of the suit.

## Appellants' ReJoinder

In rejoinder, counsel for the Appellants submited that counsel for the Appellants is not at fault in anyway. That it was held in the case of Abraham vs Jutsun (f965) 2 ALL. E. R that an advocate can only be condemned to costs of the suit if he is guilty of dishonesty that is if he knowingly takes a bad point and thereby deceives the court. That none ofthe above was proved against the appellants'advocate. 5

# 10 Determinatlon of Ground 4:

The trial Judge did not give any reasons as to why she was condemning counsel for the appellants to pay the costs of the suit and the application. This alone leaves the decision hanging in a balance. Further, a perusal ofthe court record still leaves the reasons unclear for ordering Appellants'counsel to pay the costs personally.

I find that for lack of reasons therefor indeed the trial Judge erred in law and fact when she condemned counsel for the appellant personally to costs.

# @ound. 5 The leatted trlal Jud.ge etred ln laut and tact when she condemned. counsel for the Appellants to pag costs of the dlsmlssed consolld.atcd sult nithout gtutng hlm afalr hearlng,

I have considered the submissions of both counsel for the appellant and the respondent.

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In the instant case the respondent in the Miscellaneous Application which the trial Judge was dealing with did not pray for the order for counsel for the Appellant to pay costs personally. Further on the record ofappeal there is no evidence to show that the trial Judge gave the Appellant any opportunity to be heard before the costs were given by the trial Judge.

I am therefore in agreement with the submissions of counsel for the Appellant that he was not given a hearing at all before he was condemned to personally pay costs. I would accordingly find merit in this ground of appeal.

# Ground 6 The learted. trlal Judge erred ln laut and fact when she lgnored the appeltants'subm{ssions qnd tlrcreby arrlulng at a wrong concluslon.

15 I have considered the submissions of both counsel for the appellants and the respondent. I have also considered the record ofappeal. I am inclined to find no merit in this ground of appeal.

The trial Judge referred to the appellants submissions at pages 5, 8, 12 of the Judgment. I therefore find that the trial Judge did consider the appellants submissions but did not agree with them. She chose to agree with tle submissions of the Respondent Company.

For the above stated reasons, I would find no merit in this ground of appeal.

Page 20 ol 24 # Ground 7 The Hal Judge erred ln laut uhen she falled to strlke out tle affidault otJoan KeH;mq ln Mlscellaneous Appllcatlon No.79 of 2074 tor telllng obalous Jo,lsehoods.

I observe that the trial Judge did not consider the issue raised in this ground of appeal yet the appellants raised it in their trial written submissions at page 2 where they stated that;

> oThe respondents haue three preliminary objections to raise to haue the applicant's affidauit sluorrl bg Kaitirima Joan in support or the notice of motion to be stntck out with costs.

Tlrc affidauit in support of the motion is full of obuious falsehoods and therefore should be struck out tuith costs. /n paragraph 5 of the alftdauit of KAITIRIMA JOAN she states that;

S. The respondent claiming under the Law Refonn (Miscellaneous Prouision) Act are time-baned. The respondents should haue commenced their actions within twelue calendar months afier the death of the deceased persons under uhomtheg are claiming.

Paragraph 7 of the said alfidauit further states;

7. That theg are thus time-barred and should accordinglg be dismissed

Your Lordship the aboue paragrapls calculated at hooduinking this court respondents' sttit." are falsehoods to dismiss the

This shows that what actually counsel for the Appellants had issue with was law applicable and how it should be applied. These were matters of law which the deponent was competent to testify about. An alleged error of law cannot be said to be a falsehood; it is an error. Therefore, I do not see any falsehood which the Appellants referred to in the submissions.

$\mathsf{S}$

It is also the duty of the party claiming falsehood in an affidavit to prove it through cross examination of the deponent before making any such submission to court. The trial court had the power and authority to summon the deponent for cross examination under O.19 r.1 and 2 of the Civil Procedure Rules S. I 71-1 but the appellants did not move the court to exercise that authority and power. In the instant case the appellants' counsel did not discharge this duty.

As such I am inclined to find no merit in this ground of appeal and I hereby do so. 15

Ground 8 The learned trial judge erred in law and fact when she failed to find that the respondent's failure to file an affidavit in rejoinder and submissions in reply was an admission of the appellant's averments.

Order 12 rule 1 subrule (2) S. I 71-1 Civil Procedure Rules does not 20 provide for affidavits in rejoinder in interlocutory applications. It states as follows;

> "(2) Service of an interlocutory application to the opposite party shall be made within fifteen days from

> > Page 22 of 24

the filtng of the appllcatlon, and a reply to the appllcatlon bg the opposlte party shalt be filed. utlthln fificendagsfromthe dote of seralce of the appllcatlon and. be serted on tlv applTcant uttthln fifteen d.ags tromthe d,ate otftllng of tlrc replg.,'

The general rule on applications is Order 52 of the Clvll procedure Rules which under ntles 3 and 7 states;

> 3. Euery notice of motion shall state in general terms the grounds of application, and, where ang motion is grounded on euidence bg aJfidauit, a copA of any affidauit intended to be used sholl be serued with the notice of motion.

> 7. All applications bg summons shall be in chombers and, if supported bg aJfidauit, a copA of ang alfidauit or aJfidauits relied upon shall be attached to each copy of the summons directed to be serued.

It can be deduced from the above provisions that the law does not envisage filing of aff-rdavit in rejoinder to an application. Therefore a party who intends to use additional affidavits must seek leave of court to file a supplementa4r affrdavit in support of their application. Therefore, the failure of a party to file an affrdavit in rejoinder cannot be interpreted as an admission of the facts in an affidavit in reply.

I therefore hnd no merit in this ground of appeal.

#### Conclusion

In the result, for the reasons I have given in this Judgment, I would, partially allow this appeal on grounds 2, 3, 4 and 5. The appeal accordingly fails on grounds 1,6,7 and 8.

5 The appeal having succeeded partially on four grounds and failed on four grounds I would order that each party bears its own costs of the appeal.

The orders of the trial Judge are hereby set aside and substituted with an order dismissing the Miscellaneous Application No. 79 of 2007.

The Ctvtl Suit No.45 of 2OO7 shall be set down for hearing before another Judge.

I so order.

| 1s Dated this | )--<br>-n4 | of<br>day | 2022 | |---------------|------------|-----------|------| | | | | |

@(

Stephen Musota JUSTICE OF APPEAL

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#### THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CIVIL APPEAL No.66 OF 2019 (Coram: Bamugemereire, Musota, Kibeedi JJA)

$\mathsf{S}$

### <table> NANTONGO CANDY&28Others:::::::::::::::::::::::::::::::::: APPELLANT VERSUS

#### GATEWAY BUS SERVICES ::::::::::::::::::::::::::::::::::::

(Arising from High Court Misc. App No. 79 of 2007 arising from Consolidated $10$ *Civil Suit No. 45 of 2007 at Masaka by Oguli Oumo J.)*

#### JUDGMENT OF CATHERINE BAMUGEMEREIRE JA

- The facts of this appeal are well-laid out in the lead Judgment of 15 my brother Musota JA and I will not regurgitate them here. I will however, high light the background to this appeal. The appellants were casualties of an accident involving the respondent's bus. They filed several suits that were consolidated into High Court Civil Suit - No. 45 of 2007. While the latter suit was subsisting in the High 20 Court at Masaka, the respondent filed Miscellaneous Application No. 79 of 2014. On 29<sup>th</sup> June 2015 Oguli Oumo J heard the application and issued the orders which I have paraphrased as follows: - 25

1. That the Claimants in Consolidated HCCS 45 of 2007 were concocted, fictitious and illegally before the court with no locus standi

- 2. That the claims by some of the plaintiffs in the Consolidated Suit No. 45 of 2007 were dismissed by reason of being timebarred. - 3. Counsel for the plaintiffs was ordered to pay the applicant's costs personally on the ground that he ought to have known that the suit was barred by statute of limitation and that the

plaintiffs were fictitious and concocted. The appellants being dissatisfied with the turn of events filed this appeal.

This matter comes before us for Judgment. I have read the opinion of my brother Musota JA, and I am in agreement with the same' <sup>I</sup> 5 note that my brother Kibeedi JA is also in agreement and therefore the opinion of this court is that the appeal succeeds in part on grounds no.2,3,4 and 5. We agree that:

1. The claims were rooted in negligence and therefore the Law Reform Miscellaneous Provisions Act Cap 79 was not applicable. The trial Judge erred in law when she ruled that the claims by the appellants/plaintiffs in Consolidated High Court Civil Suit No.45 of 2OO7 Candy Nantongo and others v Gateway Bus Services were time barred.

2. Having re-appraised the evidence we found as a fact that all the 29 claimants were accident victims for reason of being either by-standers, other travellers or passengers in the illfated bus whose particulars were captured at the scene of the accident and elaborately described in the Police Form and the subsequent Police Report following the accident which occurred on 3olh July 2004. These persons were found to be real humans in flesh and blood, corresponding to the names and age description. The learned trial Judge therefore, erred in fact when she ruled that the plaintiffs in Consolidated High Court Civil Suit No.45 of 2OO7 Candy Nantongo and 28 Others were concocted, fictitious and illegally before court with no locus standl. 15 20 ,R

- 3. The learned trial Judge erred in law and fact when she ordered that counsel for the appellant pays the costs of the dismissed suit. The justification is made in full in ground no. 4. - 4. An advocate may be ordered to pay costs where he has caused costs to be incurred without reasonable cause or has caused an escalation of costs by unduly delaying a matter, gross negligence, egregious misconduct or other default that appears to be rare and exceptional. We did not find any such gross negligence or egregious misconduct in this case. Neither did the learned trial Judge advance any reason as to why she was condemning counsel to costs. In our view, learned trial Judge erred in law and fact when she condemned counsel for the appellants to pay costs of the dismissed and consolidated suits without giving him a fair hearing.

20 z5 5. We carefully reviewed the record of proceedings and noted that when the learned trial Judge came to the conclusion that counsel was to pay costs she did not at any one time give him a fair hearing. The learned trial Judge erred when she failed to grant counsel an opportunity to be heard on the issue. We therefore find that the learned trial Judge erred when she condemned counsel to costs unheard.

wB <sup>3</sup>

Consequently it is ordered as follows:

- <sup>1</sup>. As a result of succeeding in the aforementioned Grounds No.2, No. 3, No. 4 and N.5, Miscellaneous Application No.79 of 2OO7 is hereby dismissed. - 2. The orders of the trial Judge in Miscellaneous Application No. 79 of 2OO7 are hereby set aside. - 3. High Court Civil Suit No.45 of 2OO7 is remitted to the High Court in Masaka and shall be set down for hearing before a different Judge. - 4. Since the appeal partially succeeded in equal part, each party shall bear its own costs arising from this court. - 5. The costs arising from the High Court shall abide the outcome of the hearing in full. - '15 We so order.

| | 19v<br>Dated this | day of | 2022. | |----|-------------------|--------|-------| | 20 | | | | | | | | |

CATHERINE BAMUGEMEREIRE JUSTICE OF APPEAL

'10

## THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CIVIL APPEAL NO.66 OF 2019

(Arising from High Court Miscellaneous Application No'79 of 2007 arising from Gonsolidated Civil Suit No.45 of 2007)

NANTONGO CANDY & 28 OTHERS APPELLANTS

#### VERSUS

# GATEWAYBUSSERVICES::::::::::::::::::::::::::::::::::::::::::RESPONDENT

CORAM: HON. JUSTICE CATHERINE BAMUGEMEREIRE'JA HON. JUSTICE STEPHEN MUSOTA, JA HON. JUSTICE MUZAMIRU M. KIBEEDI, JA

### JUDGMENT OF MUZAMIR UMUTANGULA KIBEEDt, JA

lhavehadthebenefitofreadingindrafttheludgmentbymybrother,Hon. JusticeStephen Musota, JA.

<sup>I</sup>agree with his analYsis, conclusions and the orders he has proposed'

| Dated this | of | 2022 | | |------------|----|------|--| | -day | | | |

Muzamiru Mutangula Kibeedi JUSTICE OF APPEAL