Sande v Don (U) Limited & Another (Civil Appeal 62 of 2020) [2023] UGHCCD 397 (29 September 2023)

### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT KAMPALA

### [CIVIL DIVISION]

### **CIVIL APPEAL NO. 062 OF 2020**

[*Arising from the Chief Magistrates Court of Nabweru at Nabweru CS No. 210 of 2018]*

SANDE RAMATHAN :::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT

### VERSUS

- 1. DON [U] LTD - 2. KIRUNDA MOSES :::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENTS

# **BEFORE: HON. JUSTICE EMMANUEL BAGUMA**

# **JUDGMENT.**

### **1. Background.**

The appellant formerly plaintiff filed a suit in the lower court against the Respondents formerly defendant for recovery of UGX 11,1000,000/= (Uganda Shillings Eleven Million One Hundred Thousand) in special damages, general damages for loss of lumbering machines, laptop, documents and household items, interest and costs of the suit. The trial court dismissed the suit with costs to the Respondent/Defendant.

- 2. The Appellant/Plaintiff being dissatisfied with the judgment and orders of the lower court appealed to this court on the following grounds; - - **3. Grounds of appeal.** - *1. The learned Magistrate erred in law and the fact when he found that the 1st Defendant is not vicariously liable for actions of her agent who was present during execution of her Decree.* - *2. The learned Magistrate erred in law and fact when he failed to evaluate evidence on record as a whole in regard to the execution of decree in HCCS No. 457 of 2012, hence making a wrong decision.*

# **3. Legal Representation.**

Counsel Sajja Ismail represented the Appellant, counsel Hellen Akankwatsa represented the 1st Respondent while counsel Kenneth Kajeke represented the 2 nd Respondent

4. At the hearing parties agreed to file written submissions whose details are on record and I have considered the same while writing this judgment.

# 5. **Duty of first Appellant Court**.

The duty of the first appellate court was stated in the case of **Kifamunte Henry Vs Uganda SC, (Cr) Appeal No. 10 of 2007,** where it was held that; *"…the first appellate court has a duty to review the evidence of the case, to reconsider the materials before the trial judge and makeup its own mind not disregarding the judgment appealed from but carefully weighing and considering it…''*

6. This Court therefore has a duty to re-evaluate the evidence to avoid a miscarriage of justice as it mindfully arrives at its own conclusion. I will therefore bear these principles in mind as I resolve the grounds of appeal in this case.

# **7. Submission by counsel for the Appellant.**

# **Ground one**

*The learned Magistrate erred in law and the fact when he found that the 1st Defendant is not vicariously liable for actions of her agent who was present during execution of her Decree.*

- 8. Counsel for the Appellant submitted that on 19th /10/2016 when the plaintiff was in Ntungamo doing his business the second defendant headed to the plaintiff's premises in Nansana Town Council and threw his properties including all stated under paragraph 4 of the plaint worth Ugx 11,100,000/=. - 9. Counsel submitted that from the evidence of PW2 Kabagambe Morris, Kirunda is the one who was directing and commanding the people who were

throwing out the appellant's properties under the direct supervision of Lumu Fred who was sent by Kasozi Muwanga the director of Don (U) Ltd. That from the evidence of DW2 Kirunda shows that Lumu Fred was an agent of the 1st Respondent.

10. Counsel submitted that the presence of Lumu Fred makes the 1st Respondent vicariously liable for his actions as their agent and hence it was wrong for the trial Magistrate to hold that the 1st Respondent was not vicariously liable.

# 11.**Ground two**

*The learned Magistrate erred in law and fact when he failed to evaluate evidence on record as a whole in regard to the execution of decree in HCCS No. 457 of 2012, hence making a wrong decision.*

- 12. Counsel submitted that according to the evidence of PW1 the appellant himself, the order which the 2nd defendant was executing was against Birungi Rose and Sande Kityo and not Ssendyowa Richard his landlord and his landlord through objector proceedings successfully challenged the attachment of the premises by the defendants which he was renting in Misc. Application No. 2317 of 2016 where Justice Flavia Anglin Senoga ruled that the property was wrongly attached since the objector was in possession at the time of attachment. - 13. Counsel referred to the case of **Maria Anyango Ochola & 2 others Vs Hannington Wasswa and Anor Civil Appeal No. 37 of 1985** where court held that; -

Section 46(2) of the Judicature act protected court brokers from being sued for execution but this protection only applied in respect of any lawful act done. There was no such protection where the court officer messed up things did unlawful act.

14. Counsel submitted that in this case the execution was unlawful since the court brokers attached a wrong property which did not belong to the judgment debtor.

#### **15. Submissions by counsel for the 1 st Respondent**

### **Ground one**

*The learned Magistrate erred in law and the fact when he found that the 1st Defendant is not vicariously liable for actions of her agent who was present during execution of her Decree.*

- 16. Counsel submitted that vicarious liability did not form part of the Appellant's pleadings in Civil Suit No. 210 of 2018 from which this appeal arises. The law requires that vicarious liability must be specifically pleaded and particularized and in this case no particulars of vicarious liability could be established upon which the trial magistrate could base to find the 1st Respondent liable. That even if the Appellant had pleaded vicarious liability, it would still be important that evidence be led to establish the alleged "agent" relationship but no such evidence was led. - 17. Counsel referred to **order 6 rule 7 of the Civil Procedure Rules** and **Interfreight Forwarders (U) Ltd Versus EADB CA No. 33/1993** where it was held that a party if bound to prove a case set out in his pleadings and cannot be allowed to succeed on a case not set up by him or be allowed to change to change his case at trial except by way of an amendment.

### 18.**Ground two**

*The learned Magistrate erred in law and fact when he failed to evaluate evidence on record as a whole in regard to the execution of decree in HCCS No. 457 of 2012, hence making a wrong decision.*

- 19. Counsel submitted that section 34(1) of the Civil Procedure Act states that; *"all questions arising between the parties to the suit in which the decree was passed or their representatives, and relating to the execution, discharge, or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit".* - 20. Counsel submitted that the matters of Misc. Application No. 2317 of 2016 were never part of the trial in Civil Suit No. 210 of 2018 hence bring them in this appeal would tantamount to introducing new evidence without leave of this court. The said judgment did not at all consider the manner in which

execution was done since the execution referred was of High Court under HCCS No. 457 of 2012 and thus the Chief Magistrate would be a wrong forum to establish the said matters.

# 21.**Submissions by counsel for the 2nd Respondent**

# 22.**Ground one**

*The learned Magistrate erred in law and the fact when he found that the 1st Defendant is not vicariously liable for actions of her agent who was present during execution of her Decree.*

23. Counsel for the 2nd respondent reiterated counsel for the 1st respondent's submissions on ground one and I will not reproduce the same.

# **24. Ground two**

*The learned Magistrate erred in law and fact when he failed to evaluate evidence on record as a whole in regard to the execution of decree in HCCS No. 457 of 2012, hence making a wrong decision.*

- 25. Counsel submitted that the Appellant never led evidence before the trial Magistrate that he owned the goods allegedly stolen for example by providing receipts and or photos of the same. - 26. Counsel referred to section 46 (2) of the judicature act which gives the 2nd respondent immunity while executing warrants for vacant possession issued by court. - 27. Counsel also referred to section 34 (1) of the Civil Procedure Act which requires all the issues concerning the execution of the warrant issued by the high court to be handled by that court and not separate trial.

# 28.**Analysis of court.**

## 29.**Ground one:**

*The learned Magistrate erred in law and in fact when he found that the 1st Defendant is not vicariously liable for actions of her agent who was present during execution of her Decree.*

# 30.**Section 34(1) of the Civil Procedure Act** provides that; -

*"all questions arising between the parties to the suit in which the decree was passed or their representatives, and relating to the execution, discharge, or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit".*

- 31. In the case of **Fr. Narsensio Begumisa and 3 ors Vs. Eric Kibenaga SCCA NO. 17 of** 2002 the Supreme Court while citing *Kifamunte Henry Vs Uganda SC, (Cr) Appeal No. 10 of 2007* emphasized the need to re-evaluate evidence by the first appellate court. - 32. In the instant case, Civil Suit No. 457 of 2012 and the subsequent executions complained of by the Appellant formerly the plaintiff against the Respondents formerly the Defendants in the lower court were proceedings in the High Court at Commercial Court Division. The learned trial magistrate rightly made the decision and no basis on which he could have held otherwise other than dismissing the suit. - 33. It is my considered view that filing a separate and fresh suit in the lower court was an abuse of court process. I do not see any reason to interfere with the finding of the lower court.

# 34. Ground one of the appeal fail.

### 35.**Ground two**

*The learned Magistrate erred in law and in fact when he failed to evaluate evidence on record as a whole in regard to the execution of decree in HCCS No. 457 of 2012, hence making a wrong decision.*

- 36. Having found ground one in the negative that civil suit no. 457 of 2012 and the execution of orders were in the High Court, and the appellant formerly the plaintiff decided to file a separate and fresh suit in the lower court, the trial court rightly evaluated the evidence and came up with the right decision of dismissing the suit and I have no reason to interfere with its findings. - 37. Ground two fail.

# 38.**Conclusion**

- 39. In the final result, the appeal fails with the following orders; - - **1. The appeal is hereby dismissed.** - **2. The decision and orders of the lower court are upheld.** - 3. **Costs of the Appeal are awarded to the Respondents.**

Dated, signed, sealed and delivered by email on this **29th** day of **September** 2023.

**Emmanuel Baguma Judge.**