[2014] UGCA 138

# THE REPUBLIC OF UGANDA

#### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

# CIVIL APPEAL NO.26 OF 2009

BRIAN KAGGWA APPELLANT

# **⁵** VERSUS

# PETER MURAMIRA RESPONDENT CORAM: HON. JUSTICE ELDAD MWANGUSYA, JA HON. JUSTICE RUBBY AWERI OPIO, JA HON. JUSTICE PROF. L. E. TIBATEMWA, JA **io JUDGMENT OF THE COURT**

# Introduction

2009 in High Court Civil Suit No.64 of 2008. This is an appeal from the decision of the High Court of Uganda, Commercial Division, *(Amip Singh Choudry, . J)* dated 14tn February

#### **¹⁵** Background

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The background to this appeal is that the respondent filed a suit against the appellant for breach of contract, damages and interest. The respondent alleged in his pleadings that he had purchased property from the appellant comprised in LRV 3773 F.21, land at Luzira. Fie deposited a sum of Ushs.70, 000,000/= towards the purchase leaving a balance of Ushs.l60,000,000/=. The sale was not concluded and the appellant sold

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4. 1'he learned trial Judge erred both in fact and law by completely ignoring the appellant's pleadings in the matter especially in relation to the counter claim.

# Agreed Issues

- At scheduling, the parties agreed upon the following issues: **⁵** - 1. Whether the Judgment delivered without hearing evidence from either ofthe parties was proper. - 2. Whether the procedure adopted by the trial Judge in delivering the Judgment was proper.

# **¹⁰** Representation

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was At the hearing ofthe appeal, the appellant was represented by Mr. Brian Othieno, (counsel for the appellant), while the respondent represented by Ms Sarah Naigaga, (counsel for the respondent).

# Case for the appellant

**5** Counsel for the appellant argued grounds 1, 2 and 3 together and ground 4 alone.

# Grounds 1, 2 and 3

Counsel submitted that before the learned Judge delivered the Judgment, there was a 'dialogue' between the parties and the Judge. He noted that the matter was clearly coming up for scheduling conference and counsel

informed the learned Judge that there were several issues to be resolved. He stated that there was no hearing at all, no evidence was adduced, no application for Judgment and no admissions were made. To him, the Judge erred to enter Judgment without due process.

It was counsel's view that this offended **Articles 28** and **44** of the Constitution, Section 25 of the Civil Procedure Act (CPA) and Order 18 ofthe CPR. He referred to the authority of **Kasirye Byaruhanga & Co. Advocates v Mugerwa Pius Mugalaasi CACA No. 87 of 2008,** which is similar to the matter before court. Counsel contended that the trial was a nullity.

#### **Ground 4**

Counsel argued that the learned Judge wrongly failed to consider the counter claim. He prayed that the appeal be allowed and Judgment by the lower court set aside with costs.

#### **Case for the respondent**

Counsel for the respondent submitted that there was an admission in the pleadings.' She stated that the appellant in his written statement of defence in the lower court admitted that he received Ushs.50, 000,000/=. She referred to Order 13 r.6 to support her argument that the court was entitled to enter Judgment on admission.

She also subm .ted that there was a hearing because according to her, a scheduling conference is a preliminary hearing. On the argument that there was no application for Judgment, counsel contended that the appellant was recorded an opportunity to be heard about the admitted sum.

Counsel also pointed out that a counterclaim is a suit within a suit and made reference to Order 8 CPR. She thus prayed that court dismisses the appeal and no order be made to costs.

# Reply

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**10** In reply, counsel for the appellant submitted that there was no admission by counsel during the dialogue. He stated that the Judgment under Order 12 r.6 CPR can only be based on an application. He argued that scheduling is not hearing and evidence cannot be as per pleadings. He reiterated his earlier submissions on the counter claim.

# **¹⁵ Court's consideration of the appeal**

# Issue ¹

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A look at the record of proceedings shows that when counsel for the parties appeared for scheduling, the learned Judge took over the trial and started asking questions giving no chance for counsel to amply respond. He went ahead to come up with what he believed was the subject of

contention and eventually resolved that without listening to counsel s submissions.

This court appreciates that each judicial officer has every right to deck e how the case before him or her shall be conducted. However, v.e strongly believe that this should be within the laid down principles ( f procedure and practice. For instance, the purpose of scheduling is given under Order 12 CPR. Order 12(1) provides:

> "(l)The court shall hold a scheduling conference to sort out points of agreement and disagreement, the possibility of mediation, arbitration and any other form of settlement

> (2) Where the parties reach an agreement, orders shall immediately be made in accordance with rules 6 and 7 of Order XV of these Rules."

Order 15 CPR is related to the settlement of issues and determination of suits on issues oflaw or on issues agreed upon. Order 15 r.6 in particular provides that questions of law or fact may by agreement be stated in the form of issues and this agreement must be in writing and it states that depending upon the decision of court, one party shall pay to another a sum of money specified in the agreement or one party shall deliver to another some specified property in the agreement or one of the parties shall do or abstain from doing any act specified in the agreement.

In this case, there was no such agreeme >.t envisaged under Order 15 r.6 CPR and the admission allegedly made by the appellant in his pleadings was only an acknowledgment of receipt of partial payment towards the purchase price. We do not see how this could have been a basis for the learned trial Judge to enter Judgment on that acknowledgment. The instances under which Judgment may be entered at scheduling have been shown above under Order 12 r.2 CPR ar c! this case does not fall among any of those. We thus find the arguments by counsel for the respondent that the learned Judge had a right to enter judgment at the stage of scheduling conference unsustainable.

**anor C. A Civil Appeal No. 95 of 2003** where this court observed: Counsel for the respondent argued that the learned trial Judge was entitled to enter Judgment on admission under Order 12 r.16 CPR. This rule was considered in the case of **Juliet Kalema v William Kalema &**

> **pleadings or verbally because of the use of the word "otherwise" in the rule. The rule is for the benefit of both parties. However, the court can act under the rule to enter judgment, the admissions of the claim must be clear and unambiguous. In a case involving complicated questions, which cannot be disposed of conveniently, the "The object of this rule as I understand it, is to enable a party to obtain Judgment speedily at least to the extent of the admissions. Such admissions can be made on the**

**court should decline to** exercise **its discretion against the party who is seeking judgment on admissions. The power given to court to enter judgment on admissions is discretionary one that must be exercised judiciously and circumspectly**.''(Emphasis added)

Judgment on admission is a rather elaborate procedure because the learned trial Judge must be satisfied that the admission is unequivocal. This did not happen **in** this case. The learned judge without hearing the parties chose to raise an issue and decide it instantly. We do not find that this was a case where Judgment could have been properly entered on admission.

The aside. **Article 28(1)** ofthe constitution on fair hearing provides:

**"In the determination of civil rights and obligations or any criminal charge, a person shall be entitled to a fair, speedy and public hearing before an independent and impartial court or tribunal establishfijjjrt by law"**

The constitution does **not** define fair hearing but principles have been laid down to define what amounts to fair hearing. **Black's Law Dictionary, 9th Edition** at page 676 emphasizes that fair trial is:

> "A **trial by an impartial and disinterested tribunal in accordance with regular procedures..."** (Emphasis added)

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In Uganda, courts reach their decisions after hearing the parties to the suit based on the pleadings and the evidence presented. The Supreme Court in Election Petition Appeal No.4 of 2009, Bakaluba Peter Mukasa and Nambooze Betty Bakireke, basing on Black's Law Dictionary, 6th Edition, defined the right to fair hearing thus:

> "A hearing by an impartial and disinterested tribunal; A proceed which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial consideration of evidence and facts as a whole."

the Sate (210) LPELR-In the Nigerian case of Osuona v CA/OW//150/2009, the court stated:

> governing the subject matter of litigation before it. It is its primary role thereof to oven-handedly evaluate the evidence placed before it by the parties not only through witnesses but including evidence by affidavits. A trial court, in other words, has the primary duty to fully and consciously consider the totality of the evidence preferred by all the parties before it in whatever way, ascribe probative value to it and put it on an imaginary scale of "A trial court, no doubt, is a court of law and facts. It has no other sources of generating its decision except from the solid facts established before it and from the law

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justice in order to determine the party in whose favour the balance tilts... It is trite law in civil and criminal proceedings that if there is failure by a trial court to properly appraise the evidence placed before it, the result is that whatever findings and conclusions arrived at by that trial court would be perverse."

The above portions show that the manner, in which the learned trial Judge conducted the case, was a clear violation ofthe appellant's right to fair hearing and this court cannot condone it. On that note, we would find grounds 1, 2 and 4 (Issue 1) in the affirmative.

# Issue 2

Our discussion of Issue ¹ substantially disposes of the 2nd Issue. We wish to observe that this case is indeed on all fours with the case of Kasirye Byaruhanga (supra) which incidentally was handled by the same learned Judge. In the appeal to this court, Twinomujuni, JA (RIP) (as he then was), referring to the way the trial Judge conducted the hearing in the High Court, rightly observed:

> "It was, to say, the least, an extraordinary court session, the likes of which I have not come across in the common law legal systems."

We agree with the above observation and answer the 2 ^| affirmative. nd Issue in the

On the whole, it is our finding that the way the learned Judge handled the suit in the lower court was improper and a contravention of the laid down principles of fair hearing and civil procedure. It was also a clear abuse of judicial pro-activism if that was what was intended. We therefore allow this appeal and order for a re-trial of the entire suit.

Given that none of the parties can be faulted for the manner in which the trial went, each party shall bear their own costs both here and in the court below.

We so find.

$\mathsf{S}$

yth day of March 2014 Dated at Kampala this. $10$

Eldad'Mwangusya

**Justice of Appeal**

Rubby Aweri Opio $\overline{15}$

**Justice of Appeal**

Prof. L. E. Tibatemwa

**Justice of Appeal**