[2021] UGSC 22

# THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA AT KAMPALA

Coram: Opio-Aweri, Mwondha, Mugamba, Muhanguzi & Tuhaise, ||SC

# CIVIL APPEAL NO. 05 OF 2019

# GENERAL INDUSTRIES (U) LIMITED APPELLANT

#### VERSUS

# 1. Z. J HASHAM FISH INDUSTRIES LIMITED 2. TASFAH LIMITED

3. DOTT SERVTCES (U) LTMTTED [An appeal aising out of the judgement and orders of tlu Court of Appeal of Ugandn in Ciail Appeal No.51 of 2007 before Kasule, Knkuru and RESPONDENTS

Kiryabutire, llA, deliaered on the 'L7th of lanuary, ²⁰¹⁹¹

# )udgment of Percy Night Tuhaise, JSC

This is a second appeal arising from the decision of the Court of Appeal which upheld the decision of the Non-Performing Assets Recovery Tribunal inTribunal Case No. 32 of 1999 and dismissed Ciail Appeal No.51 of2007.

# Background of the appeal 6

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General Parts (U) Ltd mortgaged its property to Uganda Commercial Bank (UCB) for a loan of Uganda Shillings 700,000,000/= (seven hundred million). The Non-Performing Assets Recovery Trust (NPART) took over the loan from UCB by operation of law. General Parts (U) Ltd defaulted and the responsibility of paying the loan was taken over by General Induskies (U) Ltd (the appellant). As a result of the default, NPART foreclosed on the appellant's properties. The same were sold to the second respondent (Tasfah (U) Ltd) who later sold and transferred them to the third respondent (Dott Services (U) Ltd).

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The appellant then filed Tribunal ClsitttNo.032 of 1.999 before the Non-Performing Assets Recovery Tribunal (NPART Tribunal) seeking to be discharged from liability to repay the loan debt of Uganda Shillings 700,000,000/=, among other remedies. The first respondent (2. ^J Hasham Fish Industries Ltd) and second respondent (Tasfah (U) Ltd) did not file their written statements in defence (WSD), and the matter proceeded against NPART and the third respondent (Dott Services (U) Ltd).

When the claim came up for hearing before the NPART Tribunal, Counsel for NPART raised a preliminary point of law to the effect that the claim wasres judicata. On22"a February 2007, the Tribunal delivered its ruling that the suit was res judicata and was barred by Section 7 of the Civil Procedure Act Cap 71. The plaint was accordingly struck out in accordance with Order 7, Rule 11 (d) of the Civil Procedure Rules, with costs to NPART and the third respondent. The appellant, being

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dissatisfied with the ruling and orders of the NPART Tribunal, appealed to the Court of Appeal of Uganda aide Ciail Appeal No. 05u007.

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The Court of Appeal delivered its judgment on 17m January 2019. It upheld the decision of the NPART Tribunal and dismissed the appeal with costs to the first, second and third respondents. No costs were awarded to NPART since it was no longer in existence. The appellant being dissatisfied with the decision and orders of the Court of Appeal filed this appeal, on the following grounds:-

"L. That the learned Hon. ]ustices of Court of Appeal erred in law and fact when they dismissed the ground of Res fudicata on issue rephrased as No. 5 but failed to order for the hearing of Tribunal Claim No.03{1999.

2. That the learned Hon. ]ustices of Court of Appeal erred in law and fact when they failed to find that the purchase/acquisition of Mailo land Block 208 Plot 23 Kawempe, Block 208 Plot ³⁴⁹ Kawempe, Block 208 Plot 380 Kawempe and Block 208 Plot 534 Kawempe, by the 2"d Respondent was unlawful and hence the 2"d respondent could not pass title in Block 208 Plot 349 Kawempe to the 3,d respondent as the Court of Appeal rightly held. '6

3. That the learned Hon. ]ustices of Court of Appeal erred in law and fact when they considered the Order in Miscellaneous Cause

No. 7 of 1997 without considering the application itself which was on the record and marked as Annexfure ttM" at Page 511 where they could have ascertained that the 2na respondent (who was the 1.'t applicant in that application) never filed an affidavit in support which could have indicated that they were foreigners.

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4. That the learned Hon. Justices of Court of Appeal erred in law and fact when they awarded costs to the 3'a respondent after having decided that the 3'd respondent had illegally purchased the suit property and went ahead to award costs to the l.'t and 2nd respondents who never filed any pleadings in court.

5. That the learned Hon. Justices of Court of Appeal erred in law and fact when they held that the sale of the Mailo land suit properties to the 4th respondent was illegal but that the illegality does not reverse foreclosure when there was none.

6. That the learned Hon. Justices of Court of Appeal erred in law and fact when they failed to remit the file back to the lower court and hence locked out the appellant's remedies in the breached contract. 6

7. That the learned Hon. )ustices of Court of Appeal erred in law and fact when they failed to remit the case to the lower court which would have enabled the appellant to pursue issuance of new titles of the mailo land suit properties that were submitted to the bank as securities by the appellant but were illegally purchased by the 2.d respondent who later left the country with them and the appellant re-entered the tfuee properties but has no titles for all the four properties and yet they were in the proprietor's names, which should have retained the residues.

8. That the learned Hon. justices of Court of Appeal erred in law and fact when they failed to find that the 3.d respondent did not pay to NPART the consideration of 9hs.24,025,000/= mentioned in the lease when allegedly purchasing the lease of 99 years on the suit property Plot 349 Block 208 Kyadondo Kawempe as per Lease Agreement Annexture "L" atpage 497 on the Record of Appeal on the same property Plot 349 illegally purchased from the 2"d respondent as per the NPART-Dott Services Ltd Agreement at page 355 on the Record of Appeal in the Court of Appeal for which the lease title obtained later was a mere cover up of the illegalities committed in the illegal acquisition of the mailo propert5r at a mere Shs. 51,000,000/= paid to the 2"d respondent. 6

9. That the learned Hon. ]ustices of Court of Appeal erred in law and fact when they failed to find that the 2"d respondent company which had been registered on the 25th day of May 1996 as per Annexture "O" on page 5A of the Record of Court of Appeal was rendered dormant on the 28tt' day of February 1998 according to the notification of change of directors hence a sham company to conclude the illegal acquisition of the suit properties having filed no returns and art relevant documents disappearing from the file as of today for which Counsel David Mukiibi had no instructions from the company to represent for a no-longer existent comPany.

10. That the learned Hon. ]ustices of Court of Appeal erred in law and fact not to hold as per Supreme Court Ruling in Misc. Application No. 8 of 2000, there was no valid original mortgage attached on the Memorandum and Record of Appeal in the Court of Appeal and the one marked as Annexture "G" at page 419 was ^a photocopy. There was no original validly executed mortgage to warrant disposal of General Industries' properties under the Mortgage powers. ,- e

11. That the learned Hon. ]ustices of Court of Appeal erred in law and fact not to find that the sale amount of Shs. 97,000,000/= referred to in the Guarantee of Orient Bank and Acceptance of Offer in Misc. Application No.11997 in the Memorandum of Appeal at page 51L of the Record of Court of Appeal was lower and not realized anlrwhere or adjusted in the account of the Appellant which would have reduced the liability of Shs. 700,00O000/= to Shs. 603,000,000/= but the liability constantly remained at Shs. 700,000,000/= as there was no default from the Appellant in meeting the monthly interest charges and 700 million demanded from General Parts (U) Ltd prematurely before it was due for payment by the Appellant.

12. That the learned Hon. ]ustices of Court of Appeal erred in law and fact in not granting sufficient remedies and if the Supreme Court holds the procedure of the Court of Appeal which included rephrasing the grounds into issues, it should then award the prayers of paying costs, damages, mesne profits and interest."

### Representation

At the hearing of this appeal, the appellant was represented by Mr. Abubekar Sebanja. The first and second respondents were jointly represented by Mr. Mukiibi Semakula, and the third respondent was represented by Mr. Peter Walubiri and Mr. Brian Musika.

## Management of the appeal

There is need to make a brief highlight on the management of this appeal, with details to be given at a later stage, so that any decisions and conclusions made in the course of resolving it are appreciated. .i6

The first highlight relates to the parties to this appeal. The record shows that at the Court of Appeal sitting of l4tt November 2017, the appellant withdrew the appeal as against the then first respondent (NPART), since it had ceased to be an existent entity. Accordingly, at the sitting of this Court on 23,d June 2020, NPART, then stated to be the first respondent in the pleadings and other court documents on record, was formally struck off as a party to the suit, with the consent of Counsel for all the parties. This was pursuant to the judgment of the Court of Appeal, and the records were to be amended accordingly. Consequently, the second respondent in this appeal becomes the first respondent, the third respondent becomes the second respondent, and the fourth respondent becomes the third respondent.

The second highlight is that, at the first hearing of this appeal on22"d June 2020, this Court considered concems raised by Counsel for the fourth respondent (now third respondent) regarding the correctness of the record of appeal filed by the appellant in this Court on 1\$ APril2019. This Court consequently, among other things, directed the Registrar of the Court of Appeal to review the record filed by the appellant, alongside other documents and the decree on record; and to file a new certificate of correctness of the record of appeal within given timeliner

After the directives of this Court were complied with, this Court sat on 11th May 2027 to re-hear this appeal under a re-constituted panel where another Justice and myself replaced two Justices who had initially been part of the coram. At this hearing, after the parties had, through their respective Counsel, indicated that they would adopt their original submissions, this Court gave Counsel timelines within which to file readjusted submissions to correspond with the page numbering in the reviewed record of appeal.

## Preliminary Objections

I have noted, on careful perusal of the written submissions, that the respondents' Counsel, through their respective submissions, raised preliminary objections, which objections were responded to by the appellant's Counsel, also through written submissions. I will consider the preliminary objections first. .,6

Counsel for the second (now first) and third (now second) respondents raised one preliminary objection, that the memorandum of appeal filed by the appellant on the instant appeal, which is a second appeal, raises questions of both law and fact. He pointed out that each ground of appeal mentions that the appeal is based on both law and fact. He submitted that it is trite that second appeals, just as the instant appeal, can only be premised on questions of law, and not both mixed law andf or fact. He relied on Section 72of the Civil Procedure Act, Cap71., and the authorities of Dina Okidi V George Odwong, Court of Appeal Civil Appeal No 233 of 2015; and Beatrice Kobusingye V Fiona Nyakana & Anothet, Supreme Court Civil Appeal No. 5 of 20M. Counsel prayed that the memorandum of appeal be struck out as it raises issues of fact.

In reply, the appellant's Counsel submitted that all the twelve grounds of Appeal raised points of law and facts. He argued that it is not enough for Counsel to deduce that the ground of appeal raised points of facts simply because the word "fact" is mentioned in the grounds of appeal. He prayed that the preliminary objection be overruled.

Counsel for the third respondent also raised various preliminary points of law in his submissions. I have categorized these points of law into four categories.

The first preliminary point of law raised by the third respondent's Counsel is that the appellant fraudulently extracted a Court of Appeal decree in Ciail Appeal No. 51 of 2007 which does not correspond with the orders in the judgment. Counsel submitted that the decree contains extraneous orders that were never made by the learned Justices of Appeal, but were fraudulently included in the decree that was unilaterally extracted by the appellant without the approval of any of the respondents. He submitted that, the Court of Appeal states that; .\$J

"We accordingly dismiss this Appeal with costs to the 2"a, 3rd and 4th respondents. No cosfs are auarded to the 1st Respondent since it is no longer in existence."

He submitted that the impugned Court of Appeal decree, on the other hand, erroneously states thaf " the sale of the suit properties to the 4th respondent rtas illegal since it is a foreigner or non-Ugandan tuho slnuld not acquire Mailo land."

Counsel submitted that the appellant's entire appeal is hinged on clause 1 of the impugned decree which was fraudulently inserted to enable the appellant manufacture non-existent grounds of appeal, and that such insertion is a misrepresentation of the orders of the Court of Appeal. He contended that it is not only illegal to seek to influence the decision of this Court by fraudulently altering orders by Court of Appeal, but it is also an attack on courts of law by the appellant.

The second preliminary point of law raised by Counsel for the third respondent, which in a way is related to the first preliminary point of law, is that the record contains evidence smuggled to this Court. Counsel submitted that the appellant smuggled several documents which were never before the Court of Appeal in Ciail Appeal in No, 5'L of 2007 and included them in the record of appeal for the instant appeal. He contended that this is a deliberate abuse of court process since the said documents were never before the NPART Tribunal. ,6f

Counsel submitted that he wrote a letter addressed to the Registrar of this Court referenced as CIV/044Q.019 dated 26/7/2079 where he specifically stated that volume 1 of the appellant's first record of appeal, pages2T-3l,59-74,720-752,787-203 and 354 (B) of the appellant's record of appeal, were unlawfully smuggled into the record of appeal to

introduce documents that were never before the Court of Appeal and the NPART Tribunal.

Counsel also submitted that this matter was previously the issue of concern to this Court in Supreme Court Ciail Appeal No. 5 of ¹⁹⁹⁸ which was between the appellant and the NPART. He invited this Court to consider the previous finding of other courts to the effect that the appellant's unlawful practices of smuggling evidence onto the court record is illegal and an attack on courts of law. He prayed to this Court to be cognisant of the appellant's conduct, which he contended is ^a blatant abuse of court process seeking to introduce new evidence relating to matters which were not before the Court of Appeal.

Counsel submitted that the appellant's acts in the first two points of law offend the mandatory rule 83 (1) of the Rules of this Court and seeks to fraudulently inlluence this Court by including extraneous documents in the Record of Appeal to this Court. '..6-

The third point of law raised by Counsel for the third respondent is that the instant appeal is a disguised appeal against the previous decisions of this Court relating to the legality of the mortgage sale of the suit properties. He contended that, therefore, grounds 1, 2, 3, 4, 5, 6, 7, 8 and 9 relating to the alleged illegal mortgage sale of the suit properties ought to be disallowed since they are not only res judicatn but are also premised on fresh facts and concoctions. He relied on the case of

Lakhashmi Brothers Ltd V R. Raja & Sons [L956] EA at 313,314 to support his contentions.

The fourth preliminary point of law raised by Counsel for the third respondent is that grounds 3,7, 8, 9, 70, 11. and 12 are argumentative, complex and a narrative thereby offending Rule 82 (1) of the Judicature (Supreme Court Rules) Directions SI 13-11 which are mandatory. He submitted that all the said grounds ought to be struck out.

In response to the preliminary points of law raised by Counsel for the fourth (now third) respondent, the appellant's counsel submitted that, regarding the allegations that the decree was fraudulently extracted, his opinion is that the decree was extracted, signed and sealed by the Registrar of the Court of Appeal. He argued that it was a finding of fact clearly spelt out in the judgment and based on the observation of that court that Tasfah (U) Ltd was not competent to buy the suit property under the Constitution. s

Counsel for the appellant also submitted that the preliminary objections by Counsel for the fourth (now third) respondent regarding clause 1 being part of the decree is merely academic and offends the provisions in the Constitution that courts of law must exerciser justice in matters before them without undue regard to technicalities. Counsel further argued that the same matter was raised before this Court which made an order that a fresh record of appeal be filed.

Regarding the preliminary objection that the appeal is based on issues of res judicata, the appellant's Counsel submitted that the fourth (now third) respondent's submissions on res judicata were erroneous. He reiterated his submissions that the suit properties were bought illegally and fraudulently by the fourth (now third) respondent.

## Resolution of the points of law

I have carefully addressed the preliminary points of law raised by all the respondents, together with the appellant's resPonse on the points of law, as well as the law applicable.

I will first address the preliminary objection raised by the first and second respondents regarding the memorandum of appeal filed by the appellant. ,6

The first and second respondents contend that the appellant's memorandum of appeal raises questions of both law and fact yet, this being a second appeal, it can only be premised on questions of law as required under Section 72 of the Civil Procedure Act, Cap 71. They argue that the appeal cannot be premised on both mixed law and/or fact as the instant appeal does.

The appellant contends that all the twelve grounds of appeal raised points of law and facts. He argues that it is not enough for the respondents to deduce that the ground of appeal raised points of facts simply because the word " fact" is mentioned on the grounds of appeal. Counsel for the first and second respondents relied on section 72 of the Civil Procedure Act, Cap77, and on the cases of Beatrice Kobusingye V Fiona Nyakana & Another, Supreme Court Civil Appeal No. 5 of 2004 and Dina Okidi & Another V George Willy Odwong, Court of Appeal Civil Appeal No. 233 of 2015 to support their preliminary objection.

Section 72 of the Civil Procedure Act, Cap 77, states as follows:-

"72. Second appeal o

- (1) Except where othertttise expressly proaided in this Act or by any otlrcr Iaru for the time being in force, an appeal slnll lie to the Court ^o A ealfrom eaery decree passed in appeal by the High Court, on any of the follotoing grounds, namely that - - (a) the decision is contrary to lau or to some usage hnoing the force of law; - (b) tht decision hns failed to determine some mateial issue of laru or usage hnaing the force of laut; - (.) ^asubstantial error or defect in the yocedure proaided by this Act or by any other lau for the

time being in force, has occuned which may possibly hatte produced error or defect in the decision of the case upon the merits." (bolded and underlined for emphasis).

The provisions in that section clearly apply to the Court of Appeal, and not to this Court as the first and second respondents would want this Court to believe. ,vK

In fact, this Court, in the case of Beatrice Kobusingye V Fiona Nyakana & Another (supra), cited by the respondents, stated that, from the headnote to the Civil Procedure Act, it is clear the Act was enacted to make provision for procedure in civil courts; that since the jurisdiction of this Court and the Court of Appeal includes civil jurisdiction, the applicability of the Civil Procedure Act in this Court or in the Court of Appeal would be appropriate, but it must be alongside the operation of the Constitution and the Judicature Act, Cap 13. This Court went on to clarify that it was an error for the Court of Appeal to hold that the old sections 74 and 75 (now sections 72 and 74) of the Civil Procedure Act were not applicable to that cour| that however the said sections do not ordinarily govern appeals to this Court, because the appellate jurisdiction of this Court in both criminal and civil matters is clearly spelt out in detail in sections 5 and 6 of the Judicature Act.

This would, in my considered opinion, based on the decision in Beatrice Kobusingye V Fiona Nyakana & Another (supra), infer that while the general applicability of the Civil Procedure Act to the Court of Appeal and to this Court is not in question, there are specific sections in that Act which clearly do not apply to this Court. These include Section 72 of the Civil Procedure Act, as already stated above.

This takes me to the laws and regulations that govern appeals in this Court, to determine whether the memorandum of appeal filed by the Appellant in the instant appeal properly meets the requirements of appeals to this Court.

Section 6 of the Judicature Ac! Cap 13, provides that an appeal shall lie as of right to the Supreme Court where the Court of Appeal confirms, varies or reverses a judgment or order, including an interlocutory order, given by the High Court in exercise of its original jurisdiction and either confirmed, varied or reversed by the Court of Appeal. This should be read with rule 30 (1) of the Rules of this Court which gives power to this Court to reappraise evidence, as follows:- '.\*5r

"Where the Court of Appeal hns reaersed, affrmed or ttaried a decision of the High Court acting in its original jurisdiction, the court mau decide nmtters of law or mixed law and fact. but slull not luue discretion to take additional ettidence." (bolded and underlined for emphasis).

In the instant appeal, I note that it was the NPART tribunal and not the High Court which made the decision which was affirmed by the Court of Appeal. I would however maintain that the circumstances of this appeal are still covered under the said rule 30 $(1)$ of the Rules of this Court since section 14 of the Non-Performing Assets Recovery Trust Act, Cap 95 (formerly Statute 11 of 1994) equates the said tribunal to the High Court by providing as follows:-

## "Jurisdiction of the tribunal

- The tribunal shall have exclusive jurisdiction to hear and $(1)$ determine all matters arising under this Act or relating to any *nonperforming asset transferred to the trust under this Act.* - $(2)$ **........** - *The tribunal shall in exercise of its jurisdiction under this Act* $(3)$ have all the powers of the High Court, and for that purpose, the civil procedure rules applicable to a civil action before the High Court shall, with necessary modifications, apply to proceedings before the tribunal." (bolded and underlined for emphasis.) $\sqrt{2}$

Further, section 15 (2) of the Non-Performing Assets Recovery Trust Act, Cap 95, provides that judgments and orders of the tribunal shall be executed and enforced in the same manner as judgments and orders of the High Court, while section 15 (3) provides that appeals from the decisions and orders of the tribunal lie to the Court of Appeal. Besides, section 2 of the Civil Procedure Act Cap 71, which is applicable to civil actions before the said tribunal, defines " coLtrt" to mean any court exercising civil jurisdiction.

It is not in doubt therefore that appeals to this Court where the kibunal was the "court" exercising original jurisdiction are clearly covered by rule 30 (1) of the Rules of this Court.

The past decisions of this Court have, in addition, also brought out very clearly the principles to be addressed in second appeals to this Court, in line with the foregoing laws and regulations. In the case of Kifamunte Henry V Uganda, Supreme Court Criminal Appeal No. 10 of 1997, this Court held that:-

" On a second appeal, a second appellate court is precluded fronr questioning the fndings of fact of the tial court, prouided tlut there ruas eaidence to support those fndings, though it may think it possible, or eaen probable, thnt it toould not haae itself come to the same conclusion, it can only interfere ruhere it considers thnt there tttas no euidence to support the fnding of fact, this being a question of lmu." .'trN

Thus, under the law, appeals to the Supreme Court lie on matters of law or mixed law and fact. Indeed, in the instant appeal, the memorandum of appeal filed by the appellant shows that each ground of appeal states that it is based on law and fact. I would take that to mean that the appellant's use of the words " ened in laut and fact" in the memorandum of appeal infers that all the grounds of the appeal are based on mixed law and fact. As to whether there is merit in the said grounds of appeal is a different matter to be determined when resolving the appeal.

Thus, in the first instance, it could be that the first and second respondents' Counsel, in raising the objection, misinterpreted the appellant's use of the words "erred in laru and fac{' to mean that the memorandum of appeal is challenging findings of fact only. Secondly, however, it is clear from the said respondents' submissions that they hold an erroneous contention that second appeals to this Court cannot be on questions of mixed law and fact. I have already pointed out that they cited section 72 of the Civil Procedure Act which does not apply to appeals to this Court. \*.6

As clearly illustrated by the principles laid out by the law and the decisions of this Court on second appeals, this Court is precluded from questioning the findings of fact of the trial court except where such findings are not supported by evidence, this being a question of law. See Kifamunte V Uganda (supra). It must however, at the same time, be appreciated that, under Section 7 of the Judicature Act, Cap 13, for purposes of hearing and determining an appeal, this Court has all the powers, authority, and jurisdiction vested under any written law in the court from the exercise of the original jurisdiction of which the appeal originally emanated.

This simply means that after this Court has reappraised the evidence and made its conclusions in a second appeal, it has the powers of the court of original jurisdiction, in that it can make orders the court of original jurisdiction ought to have made, guided by the laws that give jurisdiction to that particular court of original jurisdiction. Thus, in doing this, this Court would dispose of the appeal by making the orders a trial court ought to have made, instead of returning the matter back to the court with original jurisdiction to make the orders that conlorm with the outcome of the appeal. This principle was well laid out by this Court in the case of Beatrice Kobusingye V Fiona Nyakana & Another (supra), already discussed above. ,.,6

In conclusion, in resolution of the preliminary point of law raised by the first and second respondents, with due respect, it is misleading for the said respondents to raise their objection under Section 72 of the Civil Procedure Act, Cap 77 because that section relates to second appeals to the Court of Appeal. Regarding the case of Dina Okidi & Another V George Willy Odwong (supra) cited by the said respondents also to support their objection, I can only state that the decision in that case, being a decision of the lower court (Court of Appeal), cannot bind this Court. It can only be persuasive. I do not find

it so under the circumstances of this case where the decision is based on a provision of the law which does not apply to this Court.

Thus, based on the above, this preliminary point of law is overruled.

Regarding the points of law alleging a fraudulently and unilaterally exkacted decree and smuggled evidence on the record, the record shows that the same issues were previously raised by leamed Counsel for the third (formerly fourth) respondent before this Court when this matter first came up for hearing on22"d ]une 2020. It is on record that at that hearing, the initial record of appeal filed by the appellant in this Court on 1't April 2019 was objected to by learned Counsel for the fourth (now third) respondent.

The initial record of appeal consisted of 3 bound volumes with ¹²⁴³ pages. This Court made a ruling on the matter, that:- \*.u{

"We laoe considered the concerns raised by counsel for tlrc 4il' respondent regarding the conectness of the record of appeal ruhich uas fled in this court by tlrc appellant. We note that the record was satisfied (sic) by the Registrar of the Court of Appeal and bares (sic) a certifcate dated 28tt Mnrch 20L9 at page 1243 tLthich does not certify tlut it is ^a true and correct record.

We direct tlu Registrar of tlrc Court of Appeal

- a) To reaieut the record that uas filed in this appeal alongside the letter uitten by Counsel for the 4th respondent dnted 26tn July 2019 the correctness of the decree and any other parts of the record. - b) To fle a neur certifcate of correctness of tlu record of appeal not later thnn 14th July 2020 together ruith tlrc neru record of appeal - c) The {th vsspsnflsnt shall meet the costs of producing the neru record of appeal and utill serue the appellant and 2d and 3,d respondents utith a copy not later than tlu 16th of luly 2020...."

In that regard,I find that the above ruling of this Court addressed and resolved the issues of the alleged fraudulently exkacted order and smuggled evidence on the record. Indeed, the record shows that, following the directives of this Court to the Registrar of the Court of Appeal, a reviewed record of appeal was filed in this Court on 14tn July 2020 in 2 volumes, with 986 pages. The reviewed record of appeal contains a Registrar's certificate of correctness. It is also evident on page 982 of the reviewed record of appeal that a fresh decree which correspondswiththeCourtofAppealjudgmentwasextracted.''\*<

It is also on record that when the re-constituted panel first sat to re-hear this appeal on 11h May 2021., all the parties, through their respective Counsel, agreed to re-adjust their respective written submissions to be in line with the reviewed record of appeal.

Thus, the earlier ruling by the original coram on the issues of the alleged fraudulently extracted order and smuggled evidence on the record, having been signed and delivered by a properly constituted coram, not to mention that it was fully acknowledged or acquiesced to by all parties through their respective counsel at this Court's sitting on 11tt' May 2027, is properly part and parcel of the proceedings of this Court despite the re-constituting of the panel.

It also follows therefore that the reviewed record of appeal, once filed, replaced the initial record of appeal, which record, together with the decree and evidence objected to by the respondents' Counsel were automatically, or at least by implicatiory expunged from the record. In any case, it is implicit in the orders issued by this Court on 23rd June 2020 that the impugned record of appeal together with the decree and evidence emanating from it were to be expunged from the record. ,\(f\

The expunged record will therefore not be considered in resolving this appeal. Thus, it is my considered opinion that, by delving into the merits of whether or not the appellant indeed fraudulently extracted the impugned decree, or smuggled evidence onto the record of appeal, I would be re-opening issues already handled by this Court, which, in its wisdom, directed the substituting of the impugned decree and evidence by way of management of this appeal, instead of delving into the merits of the respondent's allegations. In any case, the third respondent had, through her Counsel, also initially raised the issues administratively to the Registrar of this Court by way of a letter as stated above. There is even an affidavit of service on record indicating that the reviewed record of appeal was served on all the parties to this appeal, and not a single party protested or objected to the same. If anything, the record of proceedings of 11m May 202L reflects that this Court and all parties to this appeal through their respective counsel endorsed the reviewed record filed pursuant to this Court's ruling of 2l"a lune 2020.

In the given circumstances, this Court will not re-open an issue it had previously addressed or handled albeit as a form of management of the appeal, for, to do so at this stage would tantamount to reviewing an earlier position taken by this Court, which was not prayed for by any party to this appeal. ,\6

This would, of necessity, also infer that the submissions by Counsel for the third respondent that grounds 1 to 9 of this appeal are based on a decree that was extracted fraudulently requiring their being struck out, is overtaken by events since the issue of the fraudulent extraction of such decree was addressed by this Court as stated above. In any case, no injustice will be occasioned to the parties since the record of appeal that is to be relied on is the reviewed record of appeal filed on 14tt' Jul1l 2020.

For those reasons, the points of law raised on the allegedly fraudulently extracted order and smuggled evidence on the court record are overruled.

The foregoing notwithstanding however, without prejudice, I will not hesitate to agree with the fourth (now third) respondent's counsel that smuggling evidence and involving oneself in fraudulent dealings on court record is illegal, unprofessional, and an attack on courts of law.

This takes me to the point of law raised that grounds 3, 7, 8,9, 70,77 and 12 of the appeal are argumentative, complex and a narrative, and that they offend rule 82 (1) of the Rules of this Court.

Rule 82 (1) of the Rules of this Court provides as follows:-

" A meruorsndunt of appeal slnll set fortlr cotrcisely and under distittct heads without argunent or nanatiae, the grounds of objechon to tlrc decision appealed against, specifuing the points uthich are alleged tohnue been urrongly decided, and tlu nature of the order which it is proposed to ask the court to ruake." (bolded and underlined for emphasis).

'rI^

I will scrutinize each of the impugned grounds of appeal in relation to the said rule 82 (1) to determine whether they offend it. They state as follows:-

L........ 2

3. That the learned Hon. Justices of Court of Appeal erred in law and fact when they considered the Order in Miscellaneous Cause No. 7 of 1997 without considering the application itself which was on the record and marked as Annexture " $M$ " at page 511 where they could have ascertained that the $2^{nd}$ respondent (who was the $1^st$ applicant in that application) never filed an affidavit in support which could have indicated that they were foreigners.

4. . . . . . .

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$5\ldots\ldots$

$6\ldots\ldots$

7. That the learned Hon. Justices of Court of Appeal erred in law and fact when they failed to remit the case to the lower court which would have enabled the appellant to pursue issuance of new titles of the mailo land suit properties that were submitted to the bank as securities by the appellant but were illegally purchased by the $2^{nd}$ respondent who later left the country with them and the appellant re-entered the three properties but has no titles for all the four properties and yet they were in the proprietor's names, which should have retained the residues. ARN

8. That the learned Hon. Justices of Court of Appeal erred in law and fact when they failed to find that the $3^rd$ respondent did not pay to NPART the consideration of Shs. 24,025,000/= mentioned in the lease when allegedly purchasing the lease of 99 years on the suit property Plot 349 Block 208 Kyadondo Kawempe as per Lease Agreement Annexture "L" at page 497 on the Record of Appeal on the same property Plot 349 illegally purchased from the $2^{nd}$ respondent as per the NPART-Dott Services Ltd Agreement at page 365 on the Record of Appeal in the Court of *Appeal for which the lease title obtained later was a mere cover* up of the illegalities committed in the illegal acquisition of the mailo property at a mere Shs. $51,000,000/=$ paid to the 2^nd respondent.

9. That the learned Hon. Justices of Court of Appeal erred in law and fact when they failed to find that the $2^{nd}$ respondent company which had been registered on the $25^th$ day of May 1996 as per *Annexture "O" on page 521 of the Record of Court of Appeal was* rendered dormant on the 28^th day of February 1998 according to the notification of change of directors hence a sham company to *conclude the illegal acquisition of the suit properties having filed* no returns and art relevant documents disappearing from the file as of today for which Counsel David Mukiibi had no instructions *from the company to represent for a no-longer existent company.* $\sqrt{A}$ 10. That the learned Hon. Justices of Court of Appeal erred in law and fact not to hold as per Supreme Court Ruling in Misc.

*Application No. 8 of 2000, there was no valid original mortgage*

attached on the Memorandum qnil Record of Appeal in the Court of Appeal and tlrc one marked as Arurexhtre "G" at page 419 was a photocopy. There was flo original aalidly executeil mortgage to warrant disposal of General htdustries' properties under the Mortgage powers.

11. That the leanred Hon. lustices of Court of Appeal erred in law and fact not to find that the sale amowtt of Shs. 97,000,000/= referred to in the Guarantee of Orient Bank and Acceptance of Offer in Misc. Application No. 7rt997 in the Memorandum of Appeal at page 511 of the Record of Court of Appeal was lower and not realized anyzuhere or adjusted in tlrc accotttrt of the Appellant which zoortlil haae reiluceil the liability of Shs. 700,000,000/= to Shs. 603,000,000/= but the liability constantly remsined at ihs.700,000,000/= qs tlrcre was no default from the Appellant in nreeting tlrc nronthly interest charges and ⁷⁰⁰ milliort demanded from General Parts (U) Ltd prenmturely before it was due for paynrcnt by the Appellant. ,\*ii

12. That the learned Hotr. lustices of Court of Appeal erred in laut and fact in not granting sufficient rentedies and if the Supreme Court holds the procedure of the Court of Appeal which included rephrasing the grounils into issues, it shonlil then award the prayers of paying costs, damages, ntesfle profits and interest."

Having carefully scrutinized each of the stated grounds of appeal in relation to rule 82 (1) of the Rules of this Court, I find each of them to be not concise, in addition to being argumentative and narrative, almost passing for submissions. They clearly offend rule 82 (1) as set out above.

Thus, based on the foregoing, the point of law that grounds 3,7, 8, 9, 10, 11 and 12 are argumentative, complex and a narrative, is sustained. Each of the said grounds of appeal is accordingly struck out.

I will now address the point of law that the instant appeal is a disguised appeal over issues that were resolved by previous courts, some of which are falsely alleged by the appellant before this Court, and the third respondent's consequent prayer that grounds 1 to 9 of the appeal be struck out for being res judicata and or for being based on fraudulently extracted decree.

Since grounds 3,7, 8,9,70,77, and 12 of the appeal have already been struck out for reasons given above, the grounds to be addressed under the points raised by the third respondent are grounds 1.,2,4,5 and 6 of the appeal. ,:(\

This point of law manifestly brings up issues of res judicata, but at the same time it alludes to what the third respondent castigates as the appellant's basing his appeal on non-existing court findings. This would require me to delve into the merits by analyzing each of the said grounds of appeal, to establish whether or not the appeal is indeed based on non-existent court findings. This therefore calls for a thorough scrutiny of the record of appeal rather than merely resolving the matter as a point of law. For those reasons, grounds 7,2, 4,5 and 6 of appeal will be looked at on merit in resolving this appeal, not only to determine whether they are res judicata, but also whether they are based on non-existent court findings.

## Resolution of the appeal

This Court being a second appellate Court, as was held by this Court in Kifamunte Henry V Uganda (supra), is not required to re-evaluate the evidence like the first appellate court. It cannot question findings of fact once there is evidence in support of such finding of fact by the trial court, though it may think it possible, or even probable, that it would not have itself come to the same conclusion. It can only interfere where it considers that there was no evidence to support the finding of fact, this being a question of law. 16

Before delving into the merits of this appeal, there is need to note that the parties in this appeal had filed their initial submissions based on the record of appeal that was expunged. At the re-hearing of this appeal before a re-constituted panel on 11m ill4ay 2021., the parties were given timelines to re-adjust their written submissions to be in line with the page numbering in the reviewed record of appeal.

The record shows that it is only the respondents' counsel who filed readjusted written submissions. Counsel for the second (now first) and third (now second) respondents only submitted on grounds 1. and 4, while Counsel for the fourth (now third) respondent addressed all grounds of the appeal. Counsel for the appellant did not file re-adjusted submissions (both the original submissions and the submissions in rejoinder). The record of proceedings of this Court of TltnMay 2021. clearly shows however that the appellant's Counsel acquiesced to the reviewed record of appeal when he indicated to this Court that he was going to readjust his submissions to the reviewed record and that all he needed was time of at least one week to readjust his submissions. In the interests of justice, I will consider the appellant's initial submissions (including the rejoinder) on record, well aware of the need to readjust them to the reviewed record of appeal where the need arises.

## Grounds '/..,2,4,5 and ⁶ (

These grounds of appeal, which are what remains of the appeal after the other grounds have been struck out, will be considered together because there is repetition and overlapping of issues in the said grounds. The appellant's submissions on the same do not make the situation any better, because they somehow cover the issues arising from the grounds of appeal interchangeably.

In grounds 7,2,4,5 and 6, the appellant faults the leamed Justices of Appeal for their finding that the suit was res judicata; and that the said learned Justices of Appeal, after holding that the sale of the suit properties to the fourth (now third) respondent was illegal, for their failure to reverse the foreclosure, and to remit Tribunal Claim No, 03U999 back to the tribunal for hearing. The appellant argues that this consequently locked out the appellant's remedies in the breached conhact. The appellant further faulted the learned ]ustices of Appeal for awarding costs to the fourth (now third) respondent after having decided that the third respondent had illegally purchased the suit property, and for awarding costs to the second (now first) and third (now second) respondents who never filed any pleadings in court. N,i

It was submitted for the appellant, regarding grounds 7,2 and 5 of the appeal, that the suit properties were purchased by the second respondent (Tasfah (U) Ltd) evidently a foreign owned company which could not acquire mailo land under the laws of Uganda. The appellant argues that the acquisition of the suit land by the second respondent was an irregularity and an illegality; that the second respondent did not acquire good title to the suit properties under the circumstances, and did not therefore pass good title to the third respondent (Dott Services (U) Ltd) when it purported to sell plot 349 to the third respondent.

The appellant contends that, having found that there was an illegality regarding the acquisition of the suit property by the second respondent, it was imperative for the Court of Appeal to order that the suit be heard on its merits not withstanding any defence llke res judicafa, in line with the authority of Makula International V His Eminence Cardinal Nsubuga Civil Appeal No. 4 of 1981.

The appellant submitted further on ground 5, that the leamed Justices of Appeal held that the sale of the suit properties to the third respondent was illegal, but that the illegality does not reverse the foreclosure when there was none. According to Counsel, if the sale was illegal as the court rightly found, then the third respondent did not acquire good title to the suit property, and consequently, even if there was a foreclosure order, such order was an illegality which did not pass good title to the buyer. He contended that, in any case, there was no foreclosure order against the appellant, which made the respondent's case worse. Counsel argued that the learned Justices of the Court of Appeal were not alive to this fact and the law, that it was an error on their part to find that the illegality does not affect the foreclosure order when evidently there was no such order. .,r(

The appellant's other argument, brought out in ground 6 of the appeal, is that because the first appellate court did not remit the file to the lower Court (the tribunal), the appellant was unable to pursue the remedies arising out of the breached contracU that he could not pursue the issuance of new titles of the suit properties which the appellant had submitted to the bank as securities.

In support of ground 6, the appellant repeated his earlier contentions on illegalities and res judicata, but also added that the consequence of the Court of Appeal's failure to order the remission of the file/case to the lower Court was that the appellant's remedies arising out of the breached contract could not be pursued; and, secondly, that the appellant was unable to pursue issuance of new titles of the suit properties which it had submitted to the bank as securities. The appellant further submitted that the suit properties were illegally purchased by the second respondent which later left the country with them; that the appellant, who re-entered the three suit properties, has no titles for all the four suit properties, yet they were in the proprietor's names which should retain the residue. ,,@

The respondents' position, however, is that the learned Justices of Appeal correctly found that the issues raised inTribunal Claim No, 32 of 1999 were res judicata, the questions in that claim having been ably dealt with in previous various suits at the NPART tribunal, the Court of Appeal and the Supreme Court. They contend that this is reflected in the decisions in General Indushies (U) Ltd versus NPART, Supreme Court Civil Appeal No. 5 of 1998 and Tasfah Ltd & NPART versus

## General Industries (U) Ltd, Tribunal Miscellaneous Application No. 07 of1997.

The respondents thus maintain that the Court of Appeal, having found thatTribunal Claim No. 32 of 1.999 was res judicata, there was nothing to remit to the tribunal for trial.

On the issue of illegalities, the third respondent's submissions are that the Court of Appeal never issued any order to the effect that the suit property was illegally sold to the third respondent; that the said issues were never pleaded by the appellant in Court of Appeal Ciztil Appeal No. 51 of 2007, and in the amended plaint in Tribunal Case No. 32 of 1999 from which the instant appeal originates. The third respondent further contended that the appellant is precluded from raising new issues on a second appeal. , \di

Regarding the appellant's claims that because the first appellate court did not remit the file to the lower court, the appellant was unable to pursue the remedies arising out of the breached contract, the third respondent's submissions in reply is that the matter was never pleaded by the appellant in Court of Appeal Cioil Appeal No. 5L of 2007 and in the amended plaint ttide Tribunal Case No.32 of L999 from which this appeal originates.

The third respondent also made extensive submissions regarding the impugned decree that was not part of the orders issued by the Court of Appeal. However, I have consciously not addressed the said submissions for purposes of resolving this appeal, for the reason that they are, on this point overtaken by events in that, as found earlier, this matter was addressed and handled by this Court at the commencement of the initial hearing of this appeal. With respect, the third respondent's Counsel should have edited out that aspect of the submissions since this Court availed parties and their respective Counsel an opportunity to re-adjust their submissions in line with the reviewed record of appeal as stated above. That aside, the appellant's not bothering to re-adjust his submissions as directed by this Court could also in a way explain why matters that have been overtaken by events due to the filing of the reviewed record of appeal still linger in the appellant's submissions, or the respondent's submissions in reply for that matter. .' s

The foregoing notwithstanding however, I will now address the appellant's argument that the Court of Appeal's finding of an illegality should have been the basis for ordering Tibunal Claim No. 32 of 1999 to be sent back to the tribunal for hearing on the merits instead of upholding the decision of the tribunal that it was res judicata. This argument is premised on ground 5 of the appeal at the Court of Appeal.

The said ground of appeal, which the Court of Appeal found to have no merit, and against which the appellant lodges this appeal, reads as follows:-

'5 (a) lNhether the acquisition of the suit land (s) by the 4th respondent was lawful or not, and;

ft) lMether the appellant's claim against the 4tt' respondent uas res judicata."

The record of appeal shows that the Court of Appeal handled ground 5(a) and (b) of the appeal collectively with grounds 6,7, and 8 of the same appeal. The said grounds of appeal, combined, gave rise to the question whether there was an illegal acquisition of the suit properties by the respondents. In summarizing what could be deduced from the combined grounds, the learned Justices of Appeal stated as follows:-

"Tlu main thrust of sll these grounds which rue hntte decided to determine together is that the sale of the suit properties to the fourth respondent was illegal since tlu fourth respondent is a foreigner or a non-Ugandnn uho should not acquire msilo land." ,v6

It is not correct for the appellant to state that the quoted statement was a holding of the Court of Appeal. It was clearly a mere summary, or statement of the gist of the combined grounds of appeal. It is similarly not correct for the appellant to state, as she did in grounds 2 and 5 of the appeal, that the Court of Appeal rightly held that the second respondent could not pass title in Block 208 PIot 349 Kawempe to the third respondent.

In their Judgment (page 980 of the Record of Appeal), the leamed Justices of Appeal stated:-

"We haae already made our fndings in ground four that an illegal sale does not reaerse the foreclosure on a debt that is due and ouing. In any eaent this aery issue was litigated upon under Misc. Application No. 7 of 1997, the parties to it being Tasfer Ltil €, Npart as General lnrlustries nnd resohted against the Appellant. Thnt matter is not on appeal to this Court."

The learned ]ustices of Appeal, based this finding on their earlier findings in ground 4 of the appeal (page 976 of the Record of Appeal), that:-

"It is our uiew thnt at the time of the sale of the suit properties to the fourth respondent, the equi\$ of redemption had already been lost. H. C. C. S No. 386 of L993 held that the Receiaer/ Manager ruas ightly appointed by UCB. By this time, the issue of indebtedness had been settled by foreclosure on the appellant' s property folloroing restructuing of the loan. '"<

ln Tibunal Case No. 32 of 1999, the appellant challenged the right of NPART to sell in aieut of the restructuring, ruhich ue hnoe found is ^a settled question. We agree zuith counsel for the respondent that no amount of argument as to tlu illegality or impropiety of the sale would reoerse the foreclosure. At uorst, the sale could be nullifed snd the

properties resold. Tlrc nppellant ruould otrly participate as any otlur buyer but not to redeem tJu suit properties."

It is clear from their judgment that the illegalities the learned Justices of Appeal referred to were those stated by Counsel for the appellant in his submissions to the court. The learned Justices of Appeal were in fact emphasizing that in spite of the alleged illegalities, the foreclosure could not be reversed; that the sale was a matter subsequent to the foreclosure. They were therefore not making a finding on illegalities as the appellant's Counsel would want this Court to believe.

On that that basis, I find that grounds 7,2, 5 and 6 of the appeal are based on non-existent facts, since the learned Justices of Appel never held that there was an illegality with the acquisition of property by the third (now second) respondent. In addition, since the issue of the illegality of the acquisition of the suit property by either the second or the third respondents was not addressed by the first appellate court, it cannot be addressed by this Court on second appeal. irl.-

Secondly, as shown in their statements above, the learned Justices of Appeal, in exercising their duty as the first appellate court, evaluated the evidence on record. In their judgment, specifically between pages 968 to 972 in volume 2 of the record of appeal, they found Miscellaneous Application No. 7 of 7997 Tasfah Ltd and NPART y General lndustries (U) Ltd, which was part of their record of appeal, had resolved the matter before them. The holding in the said application is to the effect that the first applicant, Tasfah Ltd, is entitled to possession of Plots 23, 349,380 and 634, Block 208, Kawempe, as a purchaser. The learned Justices of Appeal, relying on the said holding, hence correctly made a finding that the matter was res judicata.

The learned Justices of Appeal thus, in my considered opinion, correctly found no reason to make an order for the hearing of Tribunal Claim No 32 of 1999, because as stated in their judgment on page 980 of the Record of Appeal, Miscellaneous Applicatiott No. 7 of 1997 was not an appeal to the Court of Appeal. Had it been appealed against in the Court of Appeal, then the learned Justices of Appeal would have been obliged to entertain it, but no such appeal was ever filed.

Thus, since the Court of Appeal did not make a finding that the second respondent illegally acquired the suit property, and since the said court correctly found that the issue of illegal acquisition of the suit property had already been handled and resolved in Tribunal Miscellaneous Application No. 07 of L997 and was therefore res judicata, there was no reason to remit the case to the tribunal for hearing.

\_e( Regarding the appellant's claims that because the first appellate court did not remit the file to the lower court, the appellant was unable to pursue the remedies arising out of the breached contract, the record does not show anywhere that these matters were raised at the lower

court. This Court will therefore not entertain them at this last stage of appeal.

Secondly, it is evident on the record that the remedies desired by the appellant could not be granted simply because Tribwnl Clqim No. ³² of 1999 was dismissed for being res judicata and was not heard on merits. It is obvious that awarding remedies of a suit that is res judicata would be an error on the part of the court issuing the same. Such prayers would have been appropriately granted as consequential orders if the Court of Appeal had resolved the matter on its merits and found in favour of the appellant. Thirdly, the Court of Appeal did not find that there was a breach of contract and neither, as indicated in my earlier findings above, did it find that the appellant was entitled to the suit properties or that there was an illegality. /d

Finally, in ground 4, the appellant challenged the award of costs by the Court of Appeal to the respondents. The appellant submitted in support of this argument that the learned Justices of Appeal erred when they awarded costs to the third respondent after having decided that the said respondent had illegally purchased the suit property; that they also erred when they awarded costs to the first and second respondents who never filed any proceedings in Court. The appellant contends that to award costs to the third respondent was to allow it to benefit more from an illegality and/or irregularity which Court had found to exisU

and that, in view of the finding of the Court of Appeal, costs should not have been awarded to the third respondent.

The appellant further submitted that it is on record that the first and second respondents did not file any pleadings in court to warrant granting them costs of the suit. She argued that a party to the suit should benefit from the effort of his part in pursuing its case in court; that the first and second respondent, having filed no pleadings in court, did not deserve being awarded costs.

In reply, Counsel for the now first and second respondents submitted that the learned Justices of Appeal cannot be faulted on the award of costs since it is trite that costs follow the event and are discretionary. He argued that the first and second respondents were duly represented by Counsel; that there was no such objection as to their representation of the parties; and that it was only natural that, having entered appearance, and having instructed Counsel, the first and second respondents were entitled to the costs. ,6[

Section 27 of the Civil Procedure Act, Cap 77, provides that the awarding of costs is discretional, and, generally, costs should follow the event unless the court or judge shall for good reason, otherwise order. This Court, as a second appellate court, cannot interfere with the decision of the lower court unless there is reason to show that costs were not properly awarded.

In Departed Asians Property Custodian Board V Jaffer Brothers, Supreme Court Civil Appeal No. 9 of 1998, this Court adopted the principle in Kiska Ltd V Augelias [L969] EA 6, that where a trial court has exercised its discretion, an appellate court should not interfere unless the discretion has not been exercised judiciously, or on a wrong principle; that where it gives no reason for its discretion, the appellate court will interfere if it is satisfied that the order is wrong. It will also interfere where reasons are given if it considers that those reasons are not good reasons.

The record of appeal shows that when the matter was brought before the Court of Appeal, the first, second and third respondents were represented by their respective Counsel. In awarding costs to the appeal, the learned Justices of Appeal (page 981 of the Record of Appeal) stated:- /r^(

"We accordingly disniss this appeal utith costs to the second, third and fourth respondents (noza first, seconil and third responilents). No costs are aurarded to the frst respondent (NPART) since the frst respondents is no longer in existence."

Thus, since the record shows that the appeal at the Court of Appeal was dismissed in favour of the respondents, who were all represented by Counsel, inferring that they incurred expenses to defend the suit filed by the appellant against them, there was therefore no error on the part

of the learned Justices of Appeal to award costs to them. The Court of Appeal also clearly gave a reason why it could not award costs to the then first respondent (NPART), that is, that she was no longer in existence. Secondly, the argument of Counsel for the appellant against the award of costs to the third respondent cannot stand, since my finding above is that the Court of Appeal did not make a finding that the third respondent illegally acquired the suit property.

Ground 4 of the appeal on costs therefore lacks merit and it fails.

Thus, based on the findings and the reasons indicated in this appeal, grounds 1, 2, 4, 5 and 6 of this appeal lack merit and they accordingly fail.

Consequently, since all the grounds of this appeal lack merit, I would dismiss this appeal and confirm the orders of the Court of Appeal, and I would award costs to the respondents in this Court and in the court below.

Dated at Kampala this ....................................

PATulaise

**Percy Night Tuhaise Justice of the Supreme Court**

### THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA

(Coram: Opio-Aweri, Mwondha, Mugamba, Muhanguzi, & Tuhaise, $JJ. S. C$

### CIVIL APPEAL NO. 05 OF 2019

#### **BETWEEN**

# GENERAL INDUSTRIES (U) LIMITED:::::::::::::::::::::::APPELLANT AND

1. Z. J HASHAM FISH INDUSTRIES LIMITED 2. TASFAH LIITED **:**RESPONDENTS 3. DOTT SERVICES (U) LIMITED

(An Appeal from the Judgment of the Court of Appeal in Civil Apeal No. 51 of 2007 dated 17^th January, 2019 (Kasule, Kakuru and Kiryabwire, JJ. A)

# JUDGMENT OF HON. JUSTICE RUBBY OPIO-AWERI, JSC

I have had the benefit of reading in draft the Judgment of my learned sister Lady Justice Percy Night Tuhaise, JSC. I agree with her reasoning, conclusion and orders proposed.

As all the other members of the panel agree, this appeal is hereby dismissed with costs in this Court and in the Courts below.

Dated at Kampala this....................................

Hon. Justice Rubby Opio-Aweri JUSTICE OF THE SUPREME COURT

$\mathbf{1}$

### THE REPUBTIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA AT KAMPALA

CORAM: OPIO-AWERI, MWONDHA, MUGAMBA, MuHANcuZt, TatHAtSE, tJ. SC

### ctvtr APPEAT No. 05 0F 2019

## GENERAL INDUSTRTES (U) rTD APPELLANT

### VERSUS

- 1. Z. J HASHAM FISH INDUSTRIES tTD - 2. TASFAH tTD - 3. DOTT SERVTCES (U) rTD RESPONDENTS

(Appeol from the judgment of the Court of Appeol in Civil Appeol No. 51 of ²⁰⁰⁷ dated 1Vh lonuary, 2019 before Kosule, Kokuru & Kiryobwire, ll. A)

### JUDGMENT OF JUSTICE MU HANGUZI JSC

I have had the benefit of reading in draft the judgment of my learned sister Lady Justice Tuhaise, JSC. I agree with her analysis, findings and final decision.

4\^ Dated at Kampala this........i. 3 day of........ 2021.

Ezekiel Muhanguzi JUSTICE OF THE SUPREME COURT.

# THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA

#### Coram: Opio-Aweri, Mwondha, Mugamba Muhanguzi, Tuhaise, JJSC

#### CIVIL APPEAL NO 05 OF 2019

GENERAL INDUSTRIES (U) LTD ...................................

**VERSUS**

| (1) NON PERFORMING ASSETS RECOVERY TRUST | | |------------------------------------------|-------------| | (2) Z. J. HASHAM FISH INDUSTRIES LTD | RESPONDENTS | | (3) TASFAR LIMITED | | | (4) DOTT SERVICES (U) LTD | |

#### JUDGMENT OF MWONDHA JSC

I have had the opportunity to read the Judgment in draft of my learned sister Tuhaise JSC. I agree with the analysis reasoning, decision and confirm the orders of the Court of Appeal with costs to the respondents in this Court and the Court below.

Dated at Kampala this ....................................

lucidie

Mwondha JUSTICE OF THE SUPREME COURT

### THE REPUBLIC OF UGANDA

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

[CORAM: OPIO-AWERI, MWONDHA, MUGAMBA, MUHANGUZI & TUHAISE, JJ. S. C.]

#### CIVIL APPEAL NO. 05 OF 2019

#### **BETWEEN**

### GENERAL INDUSTRIES (U) LIMITED ::::::::::::::::::::::::: APPELLANT

#### **AND**

#### 1. Z. J HASHAM FISH INDUSTRIES LIMITED

2. TASFAH LIMITED

### 3. DOTT SERVICES (U) LIMITED::::::::::::::::::::::::::::::::::::

[An Appeal from the judgment of the Court of Appeal in Civil Appeal No. 51 of 2007 dated 17^th January, 2019 (Kasule, Kakuru and Kiryabwire, J. J. A)

#### JUDGMENT OF HON. JUSTICE MUGAMBA, JSC

I have had the benefit of reading in draft the judgment of my learned sister Lady Justice Tuhaise, JSC. I agree with her reasoning, conclusion and the orders proposed.

Dated at Kampala this....................................

. . . . . . . . . . . . . . . . . . .

PAUL KAHAIBALE MUGAMBA JUSTICE OF THE SUPREME COURT