UMEME Limited v Tirwomwe (Civil Appeal 208 of 2016) [2024] UGCA 221 (23 August 2024)

Full Case Text

# THE REPI. IBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CIVIL APPEAL NO.2O8 OF 20I6

TINIE]\IE LIMI'I-EI) APPELLANT

### VEItSI,JS

DII. J. F. TIRWOMWE, RE,SPONDEN-I'

# COII. AM: HON. . IUSTICE GEOFFIIEY KIRYABWIRE, JA HON. JUSTICE MUZAMIIIU KIBEEDI, JA HON.. IUSTICE, CHRISTOPHER CASHIRABAKE,. IA

## IIULING OT' TII II COTIITT

#### Ilackground

The facts of this Appeal as can be ascertained liom the Judgment at the trial Court are as follows; The Respondent filed l{igh Civil Suit No. 386 of 2012 on the l8rh December 2012, against the Appellant for special. general and aggravated damages for trespass on part of his land comprised in FRV 1207 Folio 5 PIot 407 Block I land situate at Kacence LCl, Kakiika Sub-county, Kashari. Mbarara District. The gist ol the Respondents claim at the High Court was that in 2004. the Appellant's agenls/servanls/employees unlawfully and without the Respondent's Consent entered upon part of his land and erected lour high voltagc ( I I kv) electricity poles lransmitting electricity. It is the case lbr thc Respondent that he protested the presence ofthe lines as erected but eventually agreed to have the said lines diverted towards the edge of the perimeter boundary ofhis land on or about the 31'1 May 2006. However. the said diversion was not elfected by the Appellant until on or abour rhe 20th July 201 I .

In its defence, the Appellant denied liability for erecting electricity installations on the Respondent's land and that lhe subsequent diversion was done with the consent ofthe Respondent.

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#### Decision of the Trial Court

'lhe trial Judge. the Hon. Justice Benjamin Kabiito in his judgment rendered on the 26tl' April 201 6 tbund in favour oflhe Respondent and held that thc Appellant had trespassed on the Respondent's land up to 20'h July 201 l. The learned Trial Judge further held that even af-ter the diversion the Respondent suffered a loss on account ol the use of part of his land measuring 0.289 hcctares. Furthermore, he found that the value of the area affected was Ug. Shs. 203.000,000/:. Consequently, the leamed Trial Judge awarded the Respondent Ug. Shs. 203,000,000/= in special damages, Ug Shs. 780,000/: incurred lbr the Valuation Repo(, Ug. Shs. 5,000,000/= in general damages, and interest at a rate of 870 per annum.

#### Grounds of Appeal

- l. The Leamed Trial Judge ened in law and fbct when he failed to judiciously evaluate the evidence on record, thereby arriving at a wrong decision. - 2. The Leamed Trial Judge erred in law and fact when he erroneously awarded special damages ofUg. Shs. 203,000,000/= to the Respondent. - 3. The leamed Trial Judge erred in law and I'act when he was awarded interest of 870 pa on the sum ofUg. Shs. 203,000,000/= tiom 4th August 2006 over the current market value of the land. - 4. The leamed Trial Judge erred in law and l'act when he, in the circumstances olthe case, failed to conduct a locus quo visit and or establish the particular land involved thereby arriving at a wrong conclusion.

#### Legal lleprcsentation

The Appellant was represented by Mr Kabayo Alex, while Mr. Byamugisha Nester appeared for the Respondent.

#### The Hearing

When the matter was called for hearing on 3l't July 2024, counsel for the Respondent applied to cou( 10 have the appeal dismissed on account ofthe appellant's failure to prosecute the appeal.

When counsel lor the Appellant was tasked 10 explain the inordinate delay in prosecution of the appeal, Counsel apologised and inlbrmed thc Courl that he had just filed the Appellant's written arguments the day befbre. A perusal of thc Court record showed that the Appellant had been directed by the Registrar of this Court on the 23'd November 2021 to file their conlbrencing notes on or belbre the 7rh December 2021, the respondent to reply by l4th December 2021 and if there

was a rejoinder by, 21st December, 2021 but they had not done so. The Court record shows that the Appellants filed their written arguments on the 31st July 2024 (the date of this hearing) at 8:14am.

The Court not convinced that there were any justifiable reasons for the delay in filing the conferencing notes (two and a half years!) decided *ex tempo* to dismiss the Appeal and give its reasons later. We now give those reasons.

### **Reasons for the Decision of the Court;**

This is an old appeal filed in 2016 against a decision of the High Court rendered in the same year (about eight years ago) and involves a dispute of 2004 (twenty years old). In appeals of this nature, the onus squarely falls on the Appellant to comply with the Court Rules and Directions in order to prosecute their Appeal. Such compliance includes the need for the parties to take part in the prehearing scheduling which helps the Court of Appeal determine whether the Appeals are ready for hearing.

The filing of conferencing notes at the Court of Appeal is now a requirement of good case management to file them before an appeal is fixed for hearing. The filing of conferencing notes is akin to the process of a Scheduling Conference under Order 12 of the Civil Procedure Rules (formerly Order XB) applicable to trial courts. In the Supreme Court matter of **Tororo Cement Co Ltd V Forkina International Ltd** Civil Appeal No 01 of 2001 Justice Tsekooko (JSC RIP) held as follows: -

"... The principal objective of the scheduling conference is to enable court to assist parties to dispose of cases expeditiously by sorting out points of agreement and disagreement or assessing the possibility of mediation, arbitration and other forms of settling the suit. After a scheduling Conference, and where it is necessary, interlocutory applications can then be made and be disposed of before the suit is fixed for hearing. In that way the progress of the suit is managed systematically. In this case, it is my view that the point raised by the present proceedings should have been properly raised and dealt with during a scheduling conference or soon thereafter. One hopes that the holding of scheduling conference will be a regular feature in the trial of civil cases by all trial courts..."

Suffice it now to say, that the use of scheduling conferences has not only become a regular feature of civil cases in trial courts but is now equally a regular feature in all Courts including the Court of Appeal and Constitutional Court. Pre-hearings/scheduling's in addition, now takes place in criminal matters as well as in court annexed mediations/Alternative Dispute Resolution (ADR). Scheduling has now clearly become a court practice that amounts to a procedural rule. It reflects on seriousness and interest in the matter for those whose onus it is, to progress a matter in court.

We are alive to the decision of this Court in the Matter of Security Group (U) Ltd V Marie Stopes (U) Ltd (CA 156 of 2013) 2020 UCA 72 (2nd July 2020) where it was held that failure to file conferencing notes does not amount to failing to take an "*essential step*" for purposes of Rule 82 of the Rules of this Court. However, the facts of this case present a more disquieting and exceptional situation.

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This matter has a long checkered history at the Court of Appeal leading to the reconstitution ofa panel to hear the Appeal. At a very minimum over the eighl years that this matter has been in this Court. the Appellants should have I'iled their scheduling notes which would have allowed the Respondents 10 rcply to them and ease the hearing of this Appeal. The Appellants did not do so. The Record further shows thal the Registrars ofthis Court directed the Appellants file conferencing notes on the 22"d May 2019 (to file by l8th June 2019);4th September.20l9 (to file fresh notes by l9'h September, 2019): l5th October 2019 (to fite liesh notes by 30th October,2019) and 9'h January. 2020 (to file ftesh notes 24rh February, 2020). The Appellant did not so. On the lgrr' February, 2020 the Acting Assistant Registrar of this Court, sounding frustrated, wrote on the record: -

"I'he .file is.foruarded to the Hon. Justices.fbr hcaring as lhe Appellant has.failcd to rcspond lo lhe confbrencing schedule. "

The Appeltant only then filed their written submissions on the 3l't July 2024.

The continuous lailure by the Appellant to file their conferencing notes when directed to by the court. clearly manifests dilatory conducl. This dilatory conduct we further find was aimed at denying the successiul party in the trial court liom enjoying the fiuits of their win and points to the lack ofgenuine interest on the part ofthe Appellant to prosecute their Appeal and it is for these reasons that the Appeal ought and should be dismissed under Rule 2 (2) ofthe Rules of this Court.

#### Final Result

This Appeal stands dismissed with costs here and the Court below to the Respondent.

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