Ssenabulya v Kasagga (Civil Appeal 2 of 2022) [2024] UGHC 493 (8 April 2024)

### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT MPIGI

## CIVIL APPEAL NO. 002 OF 2022

#### (Arising from Buwama Civil Suit No. 002 of 2022)

SSENABULYA SAMSON.................................... $\cdots$ APPELLANT

#### **VERSUS**

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KASAGGA AUGUSTINE RESPONDENT

# BEFORE: HIS LORDSHIP HON. JUSTICE OYUKO ANTHONY OJOK

#### Judgment

The appellant being dissatisfied with the decision of Her Worship Awidi Suzan, Magistrate Grade one at Buwama, delivered on the 29<sup>th</sup> June, 2022 lodged the instant appeal whose grounds are as follows;

- 1. That the learned Trial Magistrate erred in law and fact when she failed to evaluate the evidence on record and erroneously arrived at a wrong decision against the appellant thereby occasioning a miscarriage of justice. - 2. That the learned Trial Magistrate erred in law and fact when she failed to inform the appellant of his right to re-examine his witness. - 3. That the learned Trial Magistrate erred in law and fact in admitting a document and marked it as DExh7 tendered in court in form of a photocopy by a witness who was not the author of the said document. - 4. That the learned Trial Magistrate erred in law and fact in trying to resolve a wrongly constructed issue that whether the defendant collected taxes for the plaintiff yet the matter is about collecting taxes illegally thereby reaching a wrong conclusion. - 5. That the learned Trial Magistrate erred in law and fact when she held that the plaintiff failed to prove his case.

#### Brief background:

The appellant instituted a suit against the respondent with a claim against the respondent for a declaration that he is lawfully entitled to special damages incurred to a tune of UGX 12,500,000/=, general damages against the defendant arising out of illegal collection of the revenue proceeds from the fisher men and costs.

It was the appellant's case that the respondent in 2018 July grabbed his tender and misled the residents or tax payers to pay taxes of the fishing site at Ssenyondo Bunjako and all fishermen who fished and netted fish had to pay 10% of every harvest on a daily basis and after the respondent misled them, they started paying UGX 10,000/= monthly to the respondent for the months of July till August, 2018. Thus, the respondent owes him UGX 12,500,000/ $=$ which he sought to recover.

The respondent on the other hand averred that in January 2018, they sat as fishermen and due to the scarcity of fish supply agreed that each boat would pay to the appellant UGX $15,000/$ = if the fish was a lot and if it was less they would pay UGX 10,000/=. That they paid up to May 2018. But in June and July 2018 there was no fish in the lake so they explained to the appellant but he did not listen. That he wrote to them demanding payment for the months of June and July 2018. That the respondent owes the appellant UGX $60,000/$ = which he tried to pay but the appellant had no receipts so he did not. The respondent denied ever collecting any revenue from the fishermen.

#### Representation:

Ms. Rehema Babirye together with Mr. Sempijja David appeared for the respondent. Both parties file written submissions.

#### Resolution:

#### Duty of the first appellate court:

It is trite law that the duty of the first appellate court is to reconsider all material evidence that was before the trial court and while making allowance for the fact that it has neither seen nor heard the witnesses, to come to its own conclusion on that evidence.

The powers of an appellate court and the principles for consideration of an appeal are statutory and provided for under Section 80 of the Civil Procedure Act. The power inter alia includes the power to determine a case finally. This may require a thorough consideration of the evidence and the law. Each case has to be considered on the basis of its own peculiar facts and upon application of the relevant law. And, in so doing it must consider the evidence on any issue in its totality and not any piece in isolation. It is only through such re-evaluation that it can reach its own conclusion. (See: Pandya v. R. (1957) E. A).

Ground 1: That the learned Trial Magistrate erred in law and fact when she failed to evaluate the evidence on record and erroneously arrived at a wrong decision against the appellant thereby occasioning a miscarriage of justice.

This ground of appeal is too general and ambiguous as it neither singles out any specific points of error nor any wrong conclusion in the judgment of the learned trial Magistrate. Thus, offending Order 43 Rule 1 (2) of the Civil Procedure Rules. (See: Attorney General v. Florence Bakiraine, C. A. C. A NO. 79 of 2003 and Katumba Byaruhanga v. Edward Kyewalabye Musoke, C. A. C. A No. 2 of 1998).

Order 43 Rule 1 (2) of the Civil Procedure Rules, provides that; the Memorandum shall set forth concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative; and the grounds shall be numbered consecutively.

I accordingly strike out ground one of this appeal for offending Order 43 Rule 1 (2) of the Civil Procedure Rules.

Ground 2: That the learned Trial Magistrate erred in law and fact when she failed to inform the appellant of his right to re-examine his witness.

Counsel for the appellant submitted that a party who calls a witness has a right to re-examine the said witness according to Section 136(3) of the Evidence Act and Order 18 of the Civil Procedure Rules. That in the instant case the appellant was not represented in the lower court and not knowledgeable about the law and the same was not explained to him so that he could re-examine his witness. As such, the trial Magistrate did not appreciate the appellant's case hence leading to a miscarriage of justice.

Counsel for the respondent on the other hand submitted that there was no cross examination of PW2 so there was no need to re-examine as per Section 137 (3) of the Evidence Act.

It is my considered view that whereas a party is who wishes to re-examine their witness may do so according to Section 137(1) of the Evidence Act, it is not known what exactly transpired in the lower court, since there is no indication as to whether the appellant did indeed have intentions of reexamining his witness but was ignorant of the same or not. It is true that the appellant was unrepresented in the lower court, however, there is no law that makes it mandatory for a judicial officer to guide an unrepresented litigant on the procedure of court. The trial Magistrate in this case was therefore not duty bound to lay out the whole examination procedure to the appellant. It should also be noted that reexamination cannot be used to give a chance to a witness to undo statements made,

in cross examination or filling in gaps in the evidence as earlier adduced. Whereas, the appellant alleges not having been given an opportunity to re-examine his witness; I have carefully read the entire record of proceedings in the lower court and there is no evidence that was adduced by the appellant himself that supported his case including his documentary evidence. He merely made allegations that were not supported by any evidence not even reexamination of PW2 would save his case. As such, failure by the trial magistrate to inform the appellant to reexamine his witness did not occasion a miscarriage of justice.

This ground of appeal hereby fails.

Ground 3: That the learned Trial Magistrate erred in law and fact in admitting a document and marked it as DExh7 tendered in court in form of a photocopy by a witness who was not the author of the said document.

Counsel submitted that the trial Magistrate erred in admitting a document in copy form by a person who never authored the same. That there was no evidence on record to explain the circumstances under which the photocopy was made, when, where and who was in possession of the original document. Thus, there was no foundation laid by the respondent in terms of admission of the secondary evidence.

Counsel for the respondent on the other submitted that the document was genuine and rightly admitted under Section 64 of the Evidence Act since the appellant had the original document.

Whereas, I do agree that the trial Magistrate erred in admitting photocopies of a document in evidence and marking it as DExh7, this particular piece of evidence was never made reference to in the trial Magistrate's resolution of the issues that were framed for court to determine as such no prejudice was occasioned to the appellant through the decision reached by the trial Magistrate. To throw more light on the exhibit, it was a list of names of the persons who were said to owe the appellant money according to the demand note made by him. If anything, the said document was irrelevant to the respondent's evidence since the respondent told court how much the appellant was demanding from him.

This ground of appeal also fails.

Ground 4: That the learned Trial Magistrate erred in law and fact in trying to resolve a wrongly constructed issue that whether the defendant collected taxes for the plaintiff yet the matter is about collecting taxes illegally thereby reaching a wrong conclusion.

Counsel quoted Order 15 Rule 5(1) of the Civil Procedure Rules that empowers court at any time, before passing a decree, to amend the issues or frame additional

issues on such terms as it thinks fit and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties. (See: Kahwa Z. and Bikorwenda v. Uganda Transport Company Ltd, [1978] HCB 318).

Counsel went on to submit that since the primary duty of framing proper issues rests with the Magistrate, the parties and their counsel are only required to assist the court in the process of framing issues. That the trial Magistrate under looked the law and proceeded with an issue she knew if not reframed, the dispute between the parties would not be resolved hence occasioning a miscarriage of justice.

Counsel for the respondent on the other hand submitted that the issue was rightly framed in accordance with Order 15 of the Civil Procedure Rules. That the correct decision of the civil litigation arrived at by the trial Magistrate largely depended upon the correct framing of the issues which was done and court is not only competent but also under an obligation to frame issues as per its understanding of the controversy between the parties. (Mundua Richard v. Central Nile Transporters Association, Miscellaneous Civil Revision No. 0003 of 2017)

I have carefully looked at the judgment of the trial Magistrate and issue 1, that the she resolved and I quote, is:

"Whether the defendant collected the taxes or revenue from the fishermen at the Ssenyondo landing site between July to September, $20187"$

The issue as quoted above is very different from what the appellant has made reference to in his ground of appeal. The trial magistrate in the resolution of the issue above stated that:

> "There is also evidence by PW1 (the plaintiff himself) that he had employed Julius, Abudu and Yudah to collect revenue on his behalf from the fishermen and boat owners at Ssenyondo Landing site.

> There is evidence on record as well for the defendant that the defendant never collected revenue for the plaintiff illegally at *Ssenyondo Landing site.*"

The trial Magistrate concluded that there was no evidence adduced by the appellant indicating that the respondent ever collected any revenue at Ssenyondo Landing site on his behalf between July and September, 2018.

In my view the conclusion as made by the trial magistrate was an indication that she had found that the respondent never collected any revenue from the fishermen, even though the phraseology includes on behalf of the appellant. The decision was

而

reached in line with the evidence she made reference to. Her phraseology therefore did not change the fact that the respondent was found to have never collected any revenue, on behalf of the appellant or otherwise. Because it was clearly the evidence of the appellant that he had people who collected revenue on his behalf and this was confirmed by PW2 who also added that the respondent never collected any taxes but was rather merely a tax payer.

I therefore find no merit in this ground, it accordingly fails.

Ground 5: That the learned Trial Magistrate erred in law and fact when she held that the plaintiff failed to prove his case.

Counsel for the appellant submitted that the evidence of the appellant was purely oral and supported by documentary evidence to collaborate the oral statements whereas the respondent's evidence was purely oral with no supporting documents to prove his case. That the appellant therefore had the burden to prove the case on the balance of probabilities which he did.

Counsel for the respondent on the other submitted that he who alleges must prove their allegation to the satisfaction of court and the standard of proof is on a balance of probabilities. (Sections 101, 103 of the Evidence Act and the case of Miller V. Minister of Pension (1947) ALLER 372). That the appellant in his submissions does not refer to any evidence he adduced during trial which was not considered by the trial magistrate but rather his submissions are full of allegations and hearsay that he proved his case whereas not. Additionally, that the appellant failed to prove his case as per the record of proceedings during trial.

The trial magistrate in this case examined the evidence on record and it was her finding that the appellant did not prove his case on a balance of probabilities. I find no fault in her decision as she rightly came to her conclusion after assessing the evidence on record which I have equally perused and hold the same opinion.

It is not a must that for one's evidence to be found credible it must be accompanied by documentary evidence. In the instant case the respondent gave his evidence and told court the he was merely a tax payer and not a tax collector which was corroborated by his witnesses and the same was stated by PW2. I find that indeed the appellant failed to prove his case on a balance of probabilities.

This ground of appeal also fails.

In a nut shell all the grounds of appeal fail. This appeal is hereby dismissed with costs to the respondent.

I so order.

Right of appeal explained.

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OYUKO ANTHONY OJOK JUDGE 08/04/2024