Okoth v Ogolla (Civil Appeal No. 9 of 2005) [2006] UGCA 59 (4 April 2006)

# THE REPUB LIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA

## AT KAMPALA

#### CORAM: HON. JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ HON. JUSTICE C. N. B. KITUMBA, JA. HON. JUSTICE S. B. K. KAVUMA, JA.

#### CIVIL APPEAL NO. 9 OF 2005

# OTHIENO OKOTH :::::::::::::::::::::::::::::::::::: **VERSUS**

#### PIUS OGOLLA :::::::::::::::::::::::::::::::::::

[Appeal from the decision of the High Court of Uganda at Kampala (Lugavizi, J.) dated 15/10/2004 in Civil Suit No. 253 of 2002]

### JUDGEMENT OF KITUMBA, JA.

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This is an appeal against the judgement of the High Court whereby the learned trial judge allowed the final dissolution and winding up of the 20 partnership known as Premier Secondary School.

The following is the background to the appeal. Othieno Okoth, the appellant and Pius Ogoola, the respondent, together with three others people were partners in a school known as Premier High School. The school was at Ntinda. The school had also land at Kira Namugongo which was partly developed with school buildings. On 2/2/1999 the five partners signed the Separation Agreement, Exhibit P1, by which they agreed to share the school assets. According to that agreement the other three people took Ntinda school. The appellant and the respondent took, 30 among others, land and developments at Kira. On 8/2/1999 the appellant

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EIand the respondent started Premier Secondary School at Kira. The school operated as a partnership and both parties to the appeal had equal shares. In the course of running the school, the partners had a lot of disagreements. They failed to resolve them, though there was some attempt to do so. The school was de-registered by the Ministry of Education and Sports beciuse of the partners' failure to resolve the disagreements. By originating summons under Order 34 rules 4 and 7 of the Civil Procedure Rules the respondent sued ttre appellant seeking for final dissolution and wilding up of the partnership. The following questions were to be determined and appropriate orders to be made.

> "1 lVhether the partnership should be dissolved.

') lVhether the assets and liabilities of the partnership should be determined and valued.

Whether the assets of the partnership should be applied in the payment of the debts and liabilities of the partnership. -'t

Whether the defendant should account for the funds he derived from the partnership between February 2001 and December 2001 when the defendant operated the school against the directive of the Ntinistry of tducation and Sports. o -t

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- Whether the surplus assets after payment of the partnership debts and liabilities should be divided between the plaintiff and on a pro rata basis. - lVhether a receiver of the partnership should be dppointed." 6

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Al1 the evidence in the suit was by affidavits. Before the commencement of the hearing of the suit both partners held a scheduling conferences and the following facts were agreed upon and admitted in evidence.

- 1. That the parties herein were in partnership in a school called Premier Secondary School. - 2. That the parties herein created the partnership in 1999. - 3. That prior to the date referred to paragraph 2 above the parties herein and some other three persons were partners in Premier High School which school had <sup>a</sup> campus at Ntinda and a site at Kira. - ,1. That the partners who constituted Premier High School dissolved that partnership as per Annexture "A" to the Organising Summons. - 5. That on acquiring the Kira site the parties herein applied to the Vlinistry of Education to run a school at that site (i.e. Premier Secondary School) which is the partnership in question, - 6. That Kira site was and is registered in the names of the parties herein. - 7. That the parties herein operated Premier Secondary School until December 2000 when the plaintiff withdrew from it on account of differences befween him and the defendant. - 8. That thereafter the defendant ran the school. - 9. That the plaintiff made complaints to the Nlinistry of Education leading to the closure and disregistration of the school,

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The following issues were agreed upon

- '01. lYhether the partnership has anv assets. - 2. \Yhether the said assets should be sold and how the proceeds of the sale should be distributed befween the parties. - 3. Whether a receiver should be appointed. - 4. Who should bear the costs of these proceedings." - The leamed trial judge ansr,vered all the four issues in the atflrmative and mede the follorving orders. l0 - The 100 units of school furniture. the appellant's and the respondent's office equipment and furniture, one f,vpewriter and the land on Block 185, Plot <sup>990</sup> Namugongo/Kira and building on it were partnership assets. I - The Registrar Commercial Court to appoint an official receiver within 7 days of the j udgement. The receiver within 21 da-v-'s from the date thereof. to take charge of the partnership assets and liabilities (if any). The receiver was to sell all partnership assets and settle the liabilities (if any) and thereafter pay the balance in equal shares to the parties after defraving therefrom his taxed assets. ') - 25

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Each perry to bear the costs of the suit. -t

The appellant was dissatisfied with the judge's decision and orders. He has fi1ed the Sppeal on the foilowing grounds:

- <sup>I</sup> The learned trial judge errerl in fact and law when he held that the land comprised in Kyadondo Block 185 Plot 990 land at Namugongo/Kira is partnership properlv. - The learned trial judge erred in law in holding that his finding as to the ownership of the land was in no way inconsistent with sections 59 and 176 of the Registration of Titles Act (Cap 230) 1 - The learned trial judge erred b"v not properlv evaluating the alfidavit evidence on record when he found that: - (i) there was nothing in writing to guide the court as to whether or not the assets were partnership propert)' - (iD on acquiring the assets, the parties used the same for the sole purpose of running the partnership - (iii) there were 100 units of school furniture and <sup>a</sup> ty pewriter that belonged to the partnership And thereby arrived ^t a wrong decision occasioning a miscarriage of j ustice. - The learned trial judge erred both in fact and in law when he held that the partnership in question was dissolved technically by operation of the law when the Nlinistry of Education de-registered Premier Secondary School in 2002. J - The learned trial judge erred in law when he found that due to irreconcilable differences, the assets of the partnership should be sold and equally distributed between the parties and that a receiver be appointed for this purpose."

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- -l The learned trial judge erred in fact and law when he held that the land comprised in Kyadondo Block 185 Plot 990 land at Namugongo/Kira is partnership properf,v-. - The learned trial judge erred in law in holding that his finding as to the ownership of the land was in no wry inconsistent with sections 59 and 176 of the Registration of Titles Act (Cap 230) -)

The le:rrned trial judge erred by not properly evaluating the affidavit evidence on record when he found that: -t

- (i) there was nothing in writing to guide the court as to whether or not the assets were partnership propertv - (iD on acquiring the assets, the parties used the same for the sole purpose of running the partnership - (iiD there were 100 units of school furniture and <sup>a</sup> fy-pewriter that belonged to the partnership And thereby arrived at a wrong decision occasioning a miscarriage of j ustice.

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- The learned trial judge erred both in fact and in law when he held that the partnership in question was dissolved technically by operation of the law when the Nlinistry of Education de-registered Premier Secondary School in 2002. - The learned trial judge erred in Iaw when he found that due to irreconcilable differences, the assets of the partnership should be sold and equally distributed between the parties and that a receiver be appointed for this purpose."

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- <sup>1</sup> The learned trial judge erred in fact and law when he held that the land comprised in Kyadondo Block 185 Plot 990 land at Namugongo/Kira is partnership propertv. - The learned trial judge erred in lew in holding that his finding as to the ownership of the land was in no way inconsistent with sections 59 and 176 of the Registration of Titles Act (Cap 230) -) - The learned trial judge erred by not properly evaluating the aflidavit evidence on record when he found that: - (i) there was nothing in writing to guide the court as to whether or not the assets were partnership propert-v - (ii) on acquiring the assets, the parties used the same for the sole purpose of running the partnership - (iiD there were 100 units of school furniture and <sup>a</sup> typewriter that belonged to the partnership And thereby arrived at a wrong decision occasioning a miscarriage of j ustice. - The learned trial judge erred both in fact and in law when he held that the partnership in question was dissolved technically by operation of the law when the Ministry of Education de-registered Premier Secondary School in 2002. l - The learned trial judge erred in law when he found that due to irreconcilable differences, - the assets of the partnership should be sold and equally distributed befween the parties and that a receiver be appointed for this purpose."

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He pra'"ed coun ro mck3 the tbllox-ing orders:

- "1. The appeal be rllowed. - l. That the j udgement of the lower court be set aside with an orde r dismissing the suit.

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3. The Appellant be peid costs of this appeal and the suit in the High Court.."

The appellant was represented by IvUs Kawenja, Othieno & Co. Advocates and the respondent was represented by IvVs Ayigihugu & Co.

Advocates. Counsel for both parties filed irt court written submissions. Counsel for the appellant submitled on all the \$ounds consecutively and counsel for the respondent followed the same order apart from grounds <sup>1</sup> and 2 which he handled jointiy. I find that some of the grounds overlap. I will handle them in the following order. I will deal with grounds 1 and 2 together, ground 3 separately and grounds 4 and 5 together. t Ll] l\_i

On grounds I and 2 appellant's counsel's complaint was that the judge ered in law and fact when he held that the land comprised in Block 185 Plot 990 at NamugongoAiira was parlnership propert-y. That finding and the orders rnade were inconsistent with sections 59 and 176 of the Registration of Titles Act. On the two grounds counsel contended that the certitlcate of title to land comprised in Kyadondo Block 185 Plot 990, Exhibit Di, showed that the registered proprietors of the land were Othieno Okoth, the appellant and Pius Ogolla, the respondent and not Premier Secondary School. The regi.stered proprietors had never transferred the land to the p artnershrp. The judge was vwong to find that the land belonged to it. Counsel argued that the finding was contrary to section 59 of the Registration of Titles Act (Cap. 230) which provides: t0 2\_r

"..,....... ..... every certillcate of title issued under this Act shall be received in all courts as evidence of the particulars set forth in the certilicate and of the entry of the certificate in the Register Book, and shall be conclusive evidence that the person named in the certificate as proprietor of or having any estate or interest in or power to appoint or dispose of the land described in the certificate is seized or possessed of that estate or interest or has that power."

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- It was counsel 's arqument that even if the land in question lvas partnership propertr', as the judge held, the pannership had only an equitable interest w'hich could not take precedence o!'er the legal interest ol registered comlnon tenants. o <sup>10</sup> - Counsel criticised the judge for relying on the prilciples stated Lindley and Banks on Partnership 18th Edition, to reach the conclusion that the land in issue was partnership property. According to counsel the judge's reliance on the work of the leamed authors lead h-im to apply the English Partnership Act of 1890, which act, is not applicable to Uganda as a stafute of general application. He argued that there are no longer statutes of general application in Uganda. ln support of h-is submission he quoted the case of Usanda Motors Ltd. vs \Yavah Iloldinss Ltd. Supreme Court Civil Appeal No. 19 of 1991. 1-< :0 - Counsel submitted further that according to section 23(1) of the Partnership Act where land is partnership propertythe partnership holds it in trust for those persons who are beneficially interested in it, they are the individual partners. Further, under section 25 ofthe Partnership Act even if land was actually partnersh-ip property it should be treated as

personal property between the partners a:ld not p;utnership property. He submitted funher, that accordine to section 3 of the Partnership Act, joint tenancy, tenanc-v in common. joint propertv, cornmon property or part ownership does not itself create a partnership as to anfhing so held or ovrrred. whether the tenarts or ollrers do or do not share any protits made by the use thereot. He argued that the parties rvere pa:-tners in Premier Secondary School but not partners in the iand. The judge was wrong to rely on the Separaiion Agreement, Exhibit P1, to conclude that the land belonged to the pannership. Counsel argued that by Exhibit Pl another pannership known as Premier High School was dissoived. The parties got the assets that were distributed to them as individual partners in their own right. The assets were not tbr the purpose of creating another pannership.

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He submitted that the judge's decision and orders had the effect of dispossessing and ejecting the appellant from his land. This in counsel's view, was inconsistent with section 176 of the Registration of Titles Act. A registered proprietor may be dispossessed of his land and the conditions are laid down i:r section 1 76. In the instant case such conditions are not satisfied. l5 20

In reply, counsel for the respondent disagreed. He supported the leamed trial judge's finding that the land comprised in Block 185 Plot 990 was partnership property. He argued that registration of land into the partnership narne was irrelevant because it was not necessary to make it partnership property. Counsel submitted that land iegistered in names of partners may be partnership property. In support of his submission he relied on the Austraiia case of Spence vs The Commissioner of Taxation of the Commonwealth of Australia, 121 CLR 273. ln rhat

case a tax payer and her husband carried a business as parhers and in the course of that business bought iand, which they registered iLr their joht narnes. The court held that the land was partnership properr-v. Counsel submined that the judge did not in his judgement apply statutes of general application and did not rel'er to any. The case of U anda Nlotors Ltd. vs \\ eveh ll oldin <sup>S</sup>Ltd (supra) \.vas not applicable

In his judgement rhe leamed trial judge observed that both panies had been carrying on business of the school known as Premier Secondary Schooi aI NamugongoiKira. The dispute was whether the partnership owned any' property. The judge reterred to the parameters which the court would make use ot-, in absence of a written agreement, to determine rvhether the property belong to a parlnership. These were:-

- (") the circumstances of acquisation of the assets, with particuiar reference to the source tiom which the assets rvere t-rnanced: - (b) the purpose ofacquisation, and - rc) the manner in w'hich the assets have subsequently been dealt with.

## Applying the above parameters he stated thus:- 20

"In trie instant case, the Separation Agreement (Exh. P1) clearlv shows that the plaintiff and the defendant acquired the assets in question on the dissolution ofan initial partnership of five persons that was known as Premier High School. It seems that the plaintiff and the defendant did not- pay any money for the said assets. They simply acquired them by agreement. Any way, the introduction part of Separation Agreement and

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Articles 1 and 7 of the said Agreement reveal more. Those areas of the Separation Agreement read as follows:-

"This AGREEMENT made this $2^{nd}$ day of February, 1999... between MUGASA CYPRIAN, KABESINDIRA HIRARY, OGOLLA PIUS, **TURYOMURUGYENDO** BENSON & OTHIENO OKOTH.

## WITNESSETH as follows

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Whereas the parties heretofore mentioned have been operating PREMIER HIGH SCHOOL as a Partnership, they have agreed to a separation under the terms and conditions stated hereunder.

1. THAT there area two partnership sites:-NTINDA and KIRA whereunto the parties herein do hereby irrevocably agree that MUGASA CYPRIAN, KABESINDIRA HIRARY & TURYOMURUGYENDO BENSON retain, take and hold all the shares pertaining the management, control and/or ownership of NTINDA COMPUS, AND that on the other hand, OGOLLA PIUS & OTHIEENO OKOTH shall take and hold all the proprietary interest/estate; manage/, control and/or own KIRA SITE.

$7.$ The parties hereto mutually agreed that each student or teacher shall be at liberty to choose which school to attend or work without undue influence, duress, intimidation."

From the foregoing, Court thinks that it is reasonable to say that the Separation Agreement that the parties to the initial partnership dissolved it and allowed the plaintiff and the defendant to take the assets in question with a view to running

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a school at the IGA. SITE. In addition, both the plaintiff and the defendant do not dispute the fact that the school they ran at the above site (i... Premier Secondary School) was <sup>a</sup> partnership. Further, the plaintiff and the defendant do not also dispute the fact that on acquiring the said assets they applied them solely in \_running the partnership in question (i.e. Premier Secondary School). For those reasons therefore, Court is persuaded to conclude that the circumstances surrounding the acquisition of the assets in question, the purpose of acquisition of the assets and the manner of applying them, strongly suggest that those assets are partnership assets."

L5 0 The judge was right to refer to the Separation Agreement, Exhibit Pi, because it threw light on how the partnership started, for what purpose and how the assets were acquired. It is clear that the old pa\*'tnership which was dissolved by Exhibit Pl ended on 21211999 and the new parlnership which is the subject of this appeal started on 81211999. ltis true that when the partnership known as Premier High School was dissolved the appellant and the respondent received their shares of the assets. It is important to note that the two parties immediately thereafter, used the assets solely for parbrership business i.e. Premier Secondary School. Indeed the assets which were received by the rwo parties to this appeal were suitable for school business. There were school buildings under construction on the land and schooi fumiture.

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The leamed trial judge's finding that the land comprised irt Block 185 Plot 990 lvas partnership property based on the law and evidence. As rightiy pointed out 6y both counsel partnership land is personal and not real estate. Hence sectiou 25 of the Partnership Act provides:-

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a school at the I([RA SITE. In addition, both the plaintiff and the defendant do not dispute the fact that the school they ran at the above site (i... Premier Secondary School) was <sup>a</sup> partnership. Further, the plaintilf and the defendant do not also dispute the fact thet on acquiring the said assets they applied them solel.v in running the partnership in question (i.e. Premier Secondary' School). For those reasons therefore, Court is persuaded to conclude that the circumstances surrounding the acquisition of the assets in question, the purpose of acquisition of the assets and the manner of applying them, strongl.v suggest that those assets are partnership assets."

The judge was right to refer to the Separation Agreement, Exhibit Pl, because it threw light on how the partnership started, for what purpose and how the assets were acquired. It is clear that the old partnership which was dissolved by Exhibit P1 ended on 21211999 and the new partnership which is the subject of this appeal started on 81211999. Itis true that when the parhership known as Premier High School was dissolved the appellant and the respondent received their shares of the assets. It is important to note that the two parties immediately thereafter, used the assets solely for partnership business i.e. Premier Secondary School. Indeed the assets which were received by the two parties to this appeal were suitable for school business. There were school buildings under construction on the land and school fumiture.

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The leamed trial judge's fuding that the land comprised ia Block <sup>185</sup> Plot 990 was partnershi.p property based on the law and evj.dence. As rightly pointed out b! both counsel partnership land is personal and not real estate. Hence section 25 of the Partnership Act provides:-

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"\l'here land of any interest in it has become partnership propertv-, it shall, unless the contrary intention appears, be treated as befween the partners, as personal and not real estate."

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I appreciate the argument of the respondent's counsel that it was not necessary for land cornprised iri Block 185 Plot 990 to be registered in the partnership before it becomes partnership property. It is true that the Registration of Titles Act govems registered land. However, the provisions of that Act must be read together with the Partnership Act where partnerships land is concemed. It would defeat the properry rights of partners in this case if one was to decide that the registered proprietors who are the partners have the 1ega1 ownership of the property and the partnership owns just an equitable interest. This would be contrary to section 25 of the Partnership Act. From the evidence on record the appellant and the respondent began Premier Secondary School and the land in question was partnership stock. As the partnership is not disputed by either parfy section 30 of the Partnership Act is irrelevant because the respondent is not basing the partnership on the joint ownership of land. I am in agreement with the holding of the leamed trial judge that his finding that the land comprised in Kyadondo Block 185 Plot 990 in partnership propefy is not inconsistent with secfions 59 and 176 of the Registration of Titles Act.

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Before I take leave of grounds 1 and 2, I must mention that during this appeal the arg\rment was raised by the appellarLt that he is a cornmon tenant with the re3pondent in respect of Kyadondo Block 185 PIot 990. . However, Premier Secondary School is on some other land comprised in

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a Block 185 Plot223. This point was not raised during triaI. There is no satisfactory evidence from the lar:d registry about the two plots. In his supplementary affidavit, the respondent deponed that he took over from the o1d partnership Kyadondo Block 185 Plot 223. The appellant in paragraph 5 of the affidavit in reply to the supplementary affidavit deponed that he owns jointiy with the respondent land comprised in Block 185 Plot 990 and denies taking over together with the respondent and comprised Block 185 Plot 223. However, Exhibit D3 which is <sup>a</sup> resolution to dissolve the partnership states that the land which should be soid on dissolution of the partnership was Block 185 Plot 990. According to Exhibit P I the appellant and the respondent took over Kira site. This is where the Premier Secondary School is situated. The appeliant does not say how he came to olvn Block 185 Plot 990 with the respondent. I am of the view that Block 185 Plot 990 is the land where Premier Secondary School is and is what the partnership owns.

Grounds 1 and 2 fail for lack of merit

I now consider ground <sup>3</sup>.

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On ground 3 the appellant's complaint is that the learned trial judge did not properly evaluate the evidence afld came to the wrong conclusion on the following tfuee sub-grounds: l0

## (i) There is nothing in writing to guide the court as to whether or not the assets were partnership property.

On this sub-ground counsel for the appellant criticised the leamed trial judge for finding that there was nofiing in writing to guide the court and therefore, used othei parameters to decide whether the property belonged

l3 to the parlnership. When submitting on this sub-ground counsel repeated his submissions il grounds 1 and 2.

With due resFect to counsel for the appellant, I think thar he misunderstood the judge's statement. The judge meant that there was no r,vriuen partnership agreement to show which property belonged to the partnership. When using the parameters the judge considered the evidence on record. For example: that the panies received the assets from the oid partnership rvith the vierv of rurming a school at Kira site.

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# (ii) On acquiring the assets the parties used the same lbr the sole purpose of running the partnership.

Counsel tbr the appellant contented that there was no evidence to support the above trnding. He submitted that altl.rough the respondent claimed that in paragraph 10 ol his supplementarv atfidavit. it was denied by the appellant in his alfidavit in repLl to the respondent's supplementary aflldavit. Counsel tbr the respondent disaereed and supported the leamed judge's finding. i5

I have carefully perused the record and f,rnd that the appellant does not deny that the assets in question were used solely for partnership purposes. ln paragraph 4 of his affidavit in reply to tJre respondent's supplementary affidavit the appellant states:-

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".1. That we decided to use the said properlv for the partnership, but never was it intended that the said properry-- would now become partnership property."

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The appellant did not say that the properry was used for any other purpose apart from fie partnership busi.ness. I am unable to fauit the leamed trial judge for believing the respondent's evidence

# (iii) There were 100 units of school furniture and the f-v"pewriter that belonged to the partnership.

The appellant's counsel's.complaint in this sub-ground is that the judge \,vas lvron-q to hold that the 100 pieces of fumlture mentioned in the separation agreement still existed. Counsel tbr the respondent conceded to this point.

I agree that ali the movable properties of the partnership which were acquired at the beginning might not exist because of wear and tear and other intervening circumstances. According to the evidence on record the respondent left the partnership in December 2000. Both the respondent and the appellant gave different evidence of the immovable property which the partnership still had. I am of the view that the judge did not have sufficient evidence to hold that the partnership had 100 pieces of schooi fumiture and a typewriter. The moveabie property which the partnership still has would be best ascerlained by the receiver. This subground succeeds. The whole of ground 3 therefore, succeeds.

I now tum to grounds 4 and 5.

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The complaint in both grounds 4 and 5 is that the leamed trial judge was wrong to find that there were irreconcilable diffefences belween the parties and that the partnership had been technically dissolved when the school rvas de-registered by the Vlirustry of Education. On the basis of that finding, he ordered the appointment oi a receiver. 25

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Counsei submitted rhat it w.as an agreed fact at the scheduling conlerence that the respondent had r,vithdrawn irom the partnership business in December 2000. According to section 35(1)(c) of the Partnership Act the giving of notice of retirement flom one panner to another is one of the metlods of dissolving a partnership. This method is absolute and not technical. Once the partnership had been dissolved there could not be irreconcilable ditTerences, betr,veen the parties. The interest of the respondent in the dissolved partnership w'as. according to section 46 of the Partnership Act, a debt which he could recover by action.

In repl-v-. respondent's learned counsel submitted that the judge's finding r.vhether the partnership was dissolved technicaliv b-u-' the de-registration by' the N{inistry of Education, was inconsequential. The respondent had trled a suit tbr the winding up of the partnership. The court granted that by ordering the sale of the partnership assets arrd distribution of the proceeds to the partners.

It is appreciated that a partnership may be determined at any moment by notice of one partner to the other. In the instant appeal, a close perusal of the record especially, Exhibit P <sup>I</sup>0, shows that there were dilTerences between the partners.. The partners together with other people held <sup>a</sup> meeting. The respondent expressed a wish to retire from the partnership. However, there was no money for pro lessional evaluation of the partnership assets. The appellant also was not able to buy the respondent's share in the partnership. From that evidence, it is obvious that the partnership was not tbrmerly dissolved and assets distributed to the paicners. 25

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The question whether the partrership had already been dissolved by the withdraw of the respondent from the partnership business was argued during the preliminary objection. The learned judged dismissed the objection and held that although &e partnership had been technically dissolved, in practice it existed for purposes of general windiag up of its assets and liability. I am unab.le to fault the judge for aliowing the general winding up of the partnership. Ground9 and 5 also fail.

In the result I would dismiss the appeal. I would grant ttre costs of the appeal to the respondent.

Dated at Kampala this +k day of ...4.p rJ 2006.

C^tA C\*I-{--\_\\_ C. N. B. Kitumba . IL STICT- OF -\PP[.\I-

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## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

## CORAM: HON. LADY JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ HON. LADY JUSTICE C. N. B. KITUMBA, JA HON. MR. JUSTICE S. B. K. KAVUMA, JA

## CIVIL APPEAL NO. 09 OF 2005

#### <table> OTHIOENO OKOTH ::::::::::::::::::::::::::::::::::::

#### VERSUS

### PIUS OGOLLA :::::::::::::::::::::::::::::::::::

#### [APPEAL from the decision of the High Court of Uganda at Kampala (Commercial Division) by Hon. Justice E. S. Lugayizi dated 15<sup>th</sup> October 2004 in Civil Suit No. 255 of 2002 (O. S)]

## JUDGEMENT OF THE HON. DEPUTY CHIEF JUSTICE

I agree that this appeal must fail. I had the benefit of reading in draft the judgment prepared by C. N. B. Kitumba JA and I concur that the learned trial judge reached a correct decision in his judgement. He cannot be faulted for ordering a general winding up of the partnership and the appointment of receivers. I have nothing more to add.

As S. B. K Kayuma JA also agrees the appellant's appeal by a unanimous decision of this Court is dismissed with costs to the respondent.

$4^{1/2}$ day of April 2006. Dated at Kampala this ........

L. E. M. Mukasa-Kikonyogo HON. DEPUTY CHIEF JUSTICE

# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA

# AT KAMPALA

# CORAM: HON. LADY JUSTICE L. E. M. MUKASA-KIKONYOGI, DCJ. HON. LADY JUSTICE C. N. B. KITUMBA, JA. HON. MR. JUSTICE S. B. K. KAVUMA, JA.

## CIVIL APPEAL NO. 9 OF 2005

OTHIENO OKOTH...................................

# **VERSUS**

PIUS OGO LA....................................

[Appeal from the decision of the High Court of Uganda at Kampala (Lugayizi, J.) dated 15/10/2004 in Civil Suit No. 253 of 2002]

## JUDGMENT OF S. B. K. KAVUMA, JA.

I have had the benefit of reading in draft the judgment prepared by Lady Justice C. N. B. Kitumba, JA. I agree with the reasoning and $25$ the orders proposed in that judgment and have nothing to add.

Dated at Kampala this 4th day of April $\ldots 2006$

Justice of

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