[2023] UGCA 189

### ⁵ THE REPUBLIC OF UGANDA

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

### CIVIL APPEAL NO. Tsg OF 2oI4

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## ARISING FROM CIVL SUIT NO. 96I OF 2OIO

### HON. ruSTICE PROF. G. W. KANYEIHAMBA & se,o Others===APPELLANTS

#### l5 VERSUS

- l. AMOS NZEYI - o AMAMA MBABAZI - g. RUHAKANA RUGUNDA - 20 4. ATTORNEY GENERAL - D. NATIONAL BANK OF COMMERCE ==============RESPONDENTS

## CORAM: HON. MR. JUSTICE RICHARD BUTEERA, DCJ HON. LADY JUSTICE CATHERINE BAMUGEMEREIRE, JA HON. MR. JUSTICE CHRISTOPHER GASHIRABAKE, JA

lAppeal from the decision of the lligh Court Commercial Division in Civil Suit No. 361 of 9o1o presided over by IIon. Mr. Justice David. K. Wangutusi on loth September 9014

### JUDGMENT OF CHRISTOPHER GASHIRABAKE. JA

# l. Background.

This Appeal arises from the .ludgment of David K. Wangutusi, J in the High Court Commercial Division Civil suit no.36l of 20lo issued on loth September 2014.

The Appellants herein lodged the suit in the High Court (Commercial Division), as shareholders of the Kigezi Bank of Commerce Limited (KBC) against the lst-3rd Respondents jointly and severally for their alleged involvement and perpetuation of 40

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- ⁵ fraudulent transactions and dereliction of duty in respect of KBC as at I l,l'April t9o7 The Appellants' amended Plaint was based in the High Court on the following facts : - The Appellants and the lst-3rd Respondents were shareholders of Kigezi Bank of Commerce Limited, incorporated under the Companies Act Cap I lo on 23rd December 1991. Some of the Appellants were fairly and duly elected and were directors of Kigezi Bank of Commerce. A.

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- The Ist, 2nd and 3rd Respondents, purporting to exercise their duties to the exclusion of other directors, as directors of Kigezi Bank of Commerce (KBC) or pretending that they had been authorized by KBC to so do, conspired with one another and fraudulently constituted a fictitioLrs company with the name of National Bank of Commerce (NBC) to which, despite the fact that it had been duly incorporated, transferred the business of KBC together with its assets and goodwill to diverse persons, thus causing loss of business profit to and reputation to KBC and correspondingly, of KBC's other shareholders and remaining directors. B. - The I st, 2nd and grd Respondents purporting to exercise powers as Directors of KBC did, without a general notice to the members of KBC but with notice to only a few selected ones falsely and fraudulently represented to the Registrar of Companies and ipsofacto to the general public that KBC had duly changed from being its fbrmer self to being a new entity named National Bank of Commerce and consequently altered 20 c. - KBC's name and constitution, and also its several provisions including subscription, classes of shares and, illegally dismissed the rest of the elected directors. 25 - The actions of the lst-3rd Respondents, to which the Attorney General acquiesced were unlawful and pre.judicial to KBC's business and continued existence and were calculated to benefit the lst, 2nd and srd Respondents illegally and for which the lst-D. - 3rd Respondents are liable to the Plaintiffs and KBC for the loss sustained.

In addition, the particulars of fraud attributable to the Respondents, as pleaded were:

- 35 A. Dishonest and illegal assignments of KBC's goodwill, together with its physical and intellectual property rights to a non-incorporated body called National Bank of Commerce, acts which the Respondents knew or ought to have known to be false and illegal, and contrary to the aims and objectives of KBC's business and its shareholders who include the Appellants. - B. Dishonest and illegal alteration of KBC's Memorandum and Articles of Association - for the purpose of unjust enrichment of the 1st, 2nd and grd Respondents. - C. Dishonest and unlawful alienation of the Appellants from active control and management of KBC calculated to benefit the Respondents jointly and severally and the said respondents took advantage of insider trading.

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D. By alienating KBC's assets to diverse persons without valid authorization from KBC. $\mathsf{S}$

It was contended in the Amended Plaint that on account of the facts illustrated above, the Appellants suffered damage and loss for which the Respondents are liable. The loss is particularized as unlawful assignment/ give away to National Bank of Commerce, KBC's goodwill, physical and intellectual Property. In addition, breach of KBC's constitution by

- $10$ the Respondents' unlawful denial of the Appellants' right to first refusal in relation to floating and purchase of shares from KBC, thus occasioning loss of investment opportunity and shortage in dividends. - $15$ The Appellants sought the following declarations and orders: - $\mathbf{I}$ . That the acts of the Respondents jointly and severally in disregard of the Memorandum and Articles of Association of Kigezi Bank of Commerce since the 11th Day of April 1997 were unlawful, fraudulent and detrimental to KBC and to the economic interests of the bank and the Appellants. - II. That the purported transformation of Kigezi Bank of Commerce into National Bank of Commerce was fraudulent, unlawful, ineffectual and a nullity. - III. That the sale and distribution of shares consequent upon the purported metamorphosis of Kigezi Bank of Commerce into National Bank of Commerce as of - $25$ the 11th April 1997 which were done without regard to KBC's Memorandum and Articles of Association were fraudulent, illegal and void. - IV. That the registrar of companies be directed immediately to correct the registrar's possession in order to reflect the Appellant's prayer and revert to the true position KBC would have been if the Respondents had not unlawfully interfered with it and - 30 its capacity to function lawfully and properly. - V. That the Respondents jointly and severally render a true account of the profits of KBC and its assets since 12th April, 1997 - VI. That the Appellants be awarded damages for loss incurred as a result of the defendant's unlawful acts. - 35 VII. A declaration that NBC does not exist. - VIII. That KBC repossess all its property that had been unlawfully dispossessed of as a result of the purported creation of NBC and all profits made by NBC since then, be paid over to KBC with compound interest to the amount due. - IX. That the 1st-3rd Respondents be held personally liable to make good any loss - $40$ suffered by KBC and refund any and all profits made since the purported floatation of NBC.


$20$

$\mathbf{L}$

# 5 2. Decision of the High Court

l0 By way of summary, in the decision, the learned Justice David K. Wangutusi held that the Appellants herein failed to prove liability of the Respondents and dismissed the suit with costs. The decision was based on the finding that the Plaintifls did not comply with the provisions of Order I rule s(z) of the Civil Procedure Rules SI zt-t, which is mandatory. In addition, the change of name of the company from Kigezi Bank of Commerce Ltd to National Bank of Commerce Ltd was within the powers of the company which could easily be effected by way of special resolution, and there is no illegality in the process. The legal requirements for the change of name were fulfilled. Furthermore, his lordship found that the amendment of the Memorandum and Articles of Association to expand the business clause of the same was done in accordance with the law, and no business was transferred to National Bank of Commerce (U) Ltd.'fhe learned Judge also found that none of the actions of the Defendants were fraudulent. t5

# 20 3. Grounds of Appeal

The Appellants lodged a memorandum of Appeal in this Court on ISth November and raised the following grounds of appeal therein;

- ²⁵ I. The learned trial Judge erred in law and fact when he failed to evaluate or properly evaluate the evidence on record, thereby reaching wrong conclusions in the judgment. - II. The learned Judge disregarded witness testimonies, documentary evidence and submissions of the Plaintiffs as a result of which miscarriage of.iustice was occasioned. - IIL The learned Judge erred in law and fact by his failure to consider or rule on the - illegalities and deceptions perpetuated by the def-endants and their agents with their consent. 30 - IV. The learned trial Judge erred in law in shielding key witnesses such as the 2nd Respondent from being subjected to examination and cross examination even though he had voluntarily come to court to testify against the specific directive of his learned colleague, Justice Kiryabwire, J as he then was. - 35 - V. The learned trial Judge erred in fact and law in relying almost entirely on the evidence and submissions of the Respondents, i6;noring those of the PIaintiffs.


# 5 ,1.. Representation.

When this Appeal was called for hearing on L22nd November 2022, Prof. Dr. George Wilson Kanyeihamba appeared for the Appellants. The I st-3rd Respondents were represented by Mr. Andrew Oluka. Mr. Johnson Natuhwera from the Attorney General's l0 Chambers appeared for the 4th Respondent, whereas Mr. Earnest Sembatya appeared for the Sth Respondent.

At the hearing, leave was granted by the Court to the parties to proceed by way of written submissions. I have considered the submissions of the parties duly lodged in the Court and other relevant authorities in the preparation of this judgment.

#### 5. Submissions by the Appellants

#### 20

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The Appellants did not address court on the grounds of appeal specifically, but generally submitted on the Appeal as perceived by them. The Appellants sr.rbmitted, by way of background, that at the meeting of the Banyakigezi nearly 20 years ago, the audience heard from the late Dr. Abel Rwendeire (RIP) and Prof. Ezra Suruma urging the Banyakigezi to found a KBC to teach the local people of the then district the art of banking. A resolution to this effect was adopted at the meeting and Prof. Kanyeihamba, the late Dr. Joseph Byamugisha, the late Principal Judge Herbert Ntabgoba, the late Jonathan Kateera were mandated to draft the memorandum and Articles of Association which were duly done with the assistance of M/S Hunter and Greig Advocates.

The Appellants submitted that the ruling was delivered by Justice Kiryabwire in the High Court (Commercial Division) wherein he ordered that the 5th Respondent Bank hold a board meeting in Kabale and that the existing board of Directors should be removed and replaced with qualified and incorruptible new directors and managers.

- 35 However, at the meeting, Mr. Nzeyi and other respondents disregarded the purpose of the meeting and turned it into an Annual (]eneral meeting wherein the Respondents appointed their sons, daughters and in-laws as the new directors and continued making decisions for the bank as if they were still in office, therefbre contemptuously ignoring J. Kiryabwire's order. At the trial, Mr. Nzeyi gave evidence on behalf of the Respondents. - 40 However, during cross examination, he admitted that he had, contrary to the law in the Companies Act and in violation of the Articles and Memorandum of Association of the KBC, ignored the rules of the Bank because he was under pressure from Bank of Uganda (the Central Bank) to capitalize the bank.


The Appellants questioned the manner in which Justice Kiryabwire was suddenly promoted/elevated to the Court of Appeal during the hearing of the case at the High Court and not given an opportunity to finish the hearing of the case. The Appellants submitted that .lustice David Wangutusi, who concluded the hearing of the case merely

- r0 adopted the rulings and findings of Justice Kiryabwire. During the hearing, according to the Appellants, it appeared like he was going to find in their favour, and that the Appellants were shocked by his judgment. The Appellants fLrther stated that everyone, including lawyers and the Appellants who have read the jLrdgment of His Lordship David Wangutusi are astonished by his orders and ruling. The Appellants cited the case of Bank - l5 of Uganda v Crane Bank Limited (no citation), stating that the shareholders of KBC are absolutely entitled to benefit from the Supreme Court's judgment which directed the Central Bank to return the shares to the original shareholders of a local commercial bank for which KBC is one.

# 20 6. Submissions bv the Respondents

The lst,2nd and 3rd Respondents lodged written submissions on 25th November 2022 However, they raised preliminary points of law to wit;

25i The grounds of appeal as presented in tlu Memorandum of Appeal at Pg. +-5 ffind rule 86(t) of tlu Court of Appeal rules and should be stntck out.

30 Counsel submitted that it is a requirement under Rule 86(t) of theJudicature (Court of Appeal rules) Directions for grounds of appeal to specify the points of law/facts or mixed law and fact that have been wrongly decided in the decision appealed against. In the instant case, the grounds of appeal do not meet this criterion and should be strr-rck out. Counsel relied on this Court's decision in Attorney General v Florence Baliraine; Civil Appeal No. 79 of aOOS; wherein Justice Kenneth Kakuru held that;

³⁵ " I am at a loss as to z.uhat tfu APpellant's complaint is in ground one. It seems to me that it is nots a practice that every mzrnorandum of appeal must begin with such a general ground. I am unable to ascertainfrom this ground thz Judge's alleged error in latu andfact. I am unable to ascertain how thz judge rnisdirected himself and hotu hzfailed to properf eaahtate thz eaidence"

"Thz grounds of appeal must therefore concisely spectfy tfu points zahich are alleged to haae been wrongly decided. General grounds such as grounds t and e which do


### ⁵ not concisely specify the points of objection offind the proaisions of Rule 86(t) of the rules of this Court"

l0 The lst-3rd Respondents further referred to the cases of; Betuco (U) Ltd & Anor v Barclays Bank Uganda Ltd & I others; SCCA No. r of sotT and Katumba Karuhanga v Edward Kyewalabye Musoke; CACA No. 2 of tsss; to submit that the grounds of appeal are framed in such a way that does not specify the points that are alleged to have been wrongly decided and should therefore be strtrck out fbr contraveningrule Sa(t) of the Court of Appeal rules.

l5 ii. The submissions in support of tfu Appealfiled by the Appellants offind rule s8(t) of the Court of Appeal rules.

20 Counsel for the lst-Srd Respondents submitted that they are constrained as to what to submit in reply as the submissions lodged by the Appellants do not speak in favor of the grounds of appeal, which offends rule lo2 of the Court of Appeal rules on presentation of arguments at the hearing. The Appellants have based their prayer for a reversal of the High Court judgment on arguments unrelated to the grounds of appeal.

#### 25 The substance of tfu Appea[ being rights to shares in KBC or NBC has been oaertaken by eaents thereby rendering tlu Appeal moot.

The lst-3rd Respondents submitted that the substance of the suit in the lower Court which can be gleaned from the prayers in the Plaint is for a shareholding in the now defunct KBC/NBC and the said bank was taken over and sold by the Central Bank. The Appeal has therefore been overtaken by events and in entertaining it, court will be carrying out an academic exercise. The Respondents submitted that the Appeal has been rendered moot.

The ath Respondent submitted that this Court should consider the issue of a cause of 35 action as against the Attorney General in the High Court. It was contended that the Plaintiffs Plaint at the High Court and by extension the Memorandum of Appeal lacks a cause of action as against the Attorney General as the pleadings do not disclose that there is an act or omission by the 4th Respondent or the Government of Uganda which amount to a violation of the Appellants' rights for which the AG would be liable, and therefore

40 this Appeal, like the civil suit does not have merit as against the ath Respondent.

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- ⁵ Regarding the actions of the Registrar of Companies, the 4,th Respondent submitted that the trial Judge was correct in his finding that the Registrar of companies diligently handled the matters to do with change of name and the amendment of the Memorandum and Articles of Association and there is no evidence of any illegality. Furthermore, the orders prayed for regarding the Registrar of Companies were not pleaded in the Amended - plaint and are therefore contrary to Order 6 rule g of the civil Procedure Rules SI zt-t. The ath Respondent relied on the case of MS Fang Min v Belex Tours and Travel Ltd; CA no. 6 of 2ol3 & Civil Appeal No. I of o,ot+ for the averment. l0

# 1. Resolution of the Appeal

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#### The duty of this Court as a tst Appellate CottrL

The duty of a first appellate Court is to make its own findings and arrive at its own conclusions from the evidence on record. It is also the duty of this court to place/ attach the greatest weight to the opinion of the trial judge who saw the witnesses. A court of appeal will not substitute its own opinion for that of the trial court, and a judgment of fact will be upheld unless it is satisfactorily shown to be unsound or contrary to the weight and evidence on record. See Rule 9o of the Judicature (Court of Appeal rules) Directions SI t3-lo, the decisions ofWatt v Thomas; ll9a7) I ALL ER 58,1 & Okeno v Republic ;ltsza) EA se,. 20 25

This may be summarized as the Court's duty to re-evaluate the evidence and reconsider all the materials which were before the trial Judge. See: Kifamunte Henry v Uganda; Supreme Court Criminal Appeal No. lo of lgg7, Banco Arabe Espanol v Bank of Uganda; Ileee] UGSC t

Being mindful of the Court's duty stated above, I shall proceed to evaluate this Appeal, commencing with the preliminary objections raised by the Respondents in the order in which they were addressed in their written submissions.

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The grounds of appeal as presented in thz Memorandurn of Appeal at Pg. +-5 offend rule s6(t) of thz Court of Appeal ntles and should be struck out.

Counsel for the Respondents contended that the grounds of appeal are framed in such ^a way that does not specify the points that are alleged to have wrongly decided and should therefore be struck out for contravening Rule 86 (l)of the Court's rules. Flowever, the Appellant did not offer a rejoinder or reply to this objection as raised.

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Rule so(r) of the Judicature (Court of Appeal rules) Directions SI t9-lo provides that;

### "Contents of the Memorandum ofAppeal

(t) A rnemorandurn of appeal shall setforth concisely and under distinct heads, without argurnent or narratiae, thz grounds of objection to the dtcision appealed against, spectfying the points which are alleged to haae been wrongfitlly decided, and thz nature of the orfur uthich it is proposed to ask the court to make."

l5 It is trite that grounds of appeal must be concise, under distinct heads and should not be argumentative or narrative. The Memorandum of Appeal should be precise and concise and should state the ground of objection to the decision without going into the arguments or narrating what transpired in the lower Court.

The Supreme Court, in the decision of Ranchobhai Shivabhai Patel Ltd & Another v 20 Henry Wambuga & Another; Civil Appeal No. 6 of sot1 considered the import of Rule 82(l) of the Judicature (Supreme Court rules) Directions which is similarly worded as rule so(t)of this Court, and considered a ground of appeal worded as:

25 "The learnedjustices ofthe court ofAppeal erced in law and infoctwhzn thzyfailed to eaaluate thz eaidence on record thereby arriaing at the wrong conclusion"

Mugamba, JSC held, in relation to the ground that

30 "This ground is too general and does not specfy in zuhat way and in which spectfic areas thz learnedjustices of appealfailed to eaahnte the eaidence. It does not set out the particular wrong decision arriaed at by the learnedjustices of appeal"

The Supreme Court consequently struck or.rt the ground of appeal. This decision was further relied on by this Court in Celtel Uganda Limited T/AZain Uganda v Susan 35 Karungi, Civil Appeal No. 73 of 9ol3; to strike out a similarly worded ground of appeal.

In Attorney General v Florence Baliraine ;Civil Appeal No. 79 of aoos; Kenneth Kakuru, JA in reference to a similarly worded ground of appeal held (at Pg. 3-a) that:

"Am at a loss as zuhat tltz appellant's cornplaint is, in ground one. It seems to me that it is nozl d practice that eaery memorandum of appeal must begtn with ytch a general ground. I am unable to ascertainfrom this ground tfu judge's alleged error in laut orfact. I ant 40

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⁵ unable to ascertain how thz judge misdirected himself and how hefailed to properly eaaluate thz eaidznce. I am unable to ascertain hout thz error and misdirection fficted thz judgment and led to tfu wrong conclusion"

#### See also: Katumba Byaruhanga v Edward Kyewalabye Musoke; (CACA No. 2 of reea) reported in (tset) KALR P.ee,t. l0

In the present Appeal, the Appellant's grounds I , 2, 3 and 5 oflend the provisions of Rule ao(t) of this Court's rules as illustrated above. [n ground l, the Appellant did not illustrate which wrong conclusion was reached by the trial judge, or how the judge failed to evaluate any specific evidence. In ground z, the Appellant, in framing the ground, did

- not illustrate which specific witness testimony or evidence was disregarded by the trial Judge, or which specific point of law or fact the onrission related to. Grounds three and five suffer the same problem. It is difficult to ascertain, without engaging in speculation, which aspects of the judgment the Appellant challenges. This is further exacerbated by the fact that the Appellant's written submissions lodged in this Court did not assist the l5 20 - court in ascertaining the particular challenges to the High Court Judgment.

On this account, I would therefore strike out grounds 1,2,3 and 5 of the memorandum of Appeal.

However, even if I had permitted these grounds to stand, I would still have dismissed them on the account that they are not proved. I have not found sufficient arguments to suggest that the trial judge failed to properly evaluate the evidence before him, or that he omitted some material witness testimony, evidence or submissions by the Appellant.

It is trite that there is no particular method of evaluation of evidence. This duty of court may be carried out in different ways depending on the circumstances of each case since judgment writing is a matter of style of preference by different individual judicial officers, which the courts of law have acknowledged over a period of time.

In British American Tobacco (U) Ltd v Sedrach Muijabi & + others, Supreme Court Civil Appeal No. I of aotz; CJ Benjamin Odoki (as he then was) held that:

" While it is prudent for judge.s to prouide erplanations for how they reachzd a certain dccisiory I arn of the opinion that this is no indication that tlu eaidence was not properly re-eaaluated, and is simply, as counselfor the Respondent asserted a "matter of style".

¹⁰ 4y( Howeaer, I haae carefiilly perused the bading judgnent and found that hz actually reevaluated the eaidence of thz tzuo principal witnesses in detail to corne to his owtt conclusion"

## See Further: Bahemuka Patrick & Another v Uganda; SCCA No. I of tggg.

l0 The assessment of whether a trial judge evaluated evidence requires the examination of;

- i) A qualitative assessment of the truth/ inherent probabilities of the evidence of the witnesses, where the veracity of witnesses may be tested by reference to contemporaneous evidence that does not depend solely on the witness' recollection. - l5 ii) Ascertainment of which of the two versions in the case is the more probable. The court is expected to determine which side/ account of events is supported by more probative evidence in accordance with the standard of proof. See Miller v Minister of Pensions; f ts+77 q ALLE,R ssz. See also: Rhesa Shipping Co v Edmunds; [1985J I W-LR 9,1,8

Although an appellate court cannot assess the demeanour of the witnesses or parties and the overall impression of their character and motivations, it is in a good position to assess any inconsistencies or consistence of facts as established from the documentation or records, or any other circumstantial evidence.

I have perused the judgment of the court and the record of appeal in this matter. At the trial, the parties chose seven issues for the adjudication of the dispute. The first and second issues questioned the identity of the 32o Plaintiffs and whether the 1"t Plaintiffhad locus to represent them. The third issue was whether the allegations against the defendants concerning the change of name of Kigezi Bank of Commerce Ltd and the alterations of its memorandum and Articles of Association was done lawfully. The next issue questioned whether the decision to transfer business to National Bank of Commerce was lawfully done, the fifth issue was whether the company meetings of KBC were lawfully convened. The sixth issue was whether NBC legally exists. The seventh issue sought to address the

35 available remedies.

> Regarding the I't issue, the triai Judge duly considered the I't Appellant's submission that the issue of his capacity to represent the other 32o Plaintiffs was resolved by the court, which called the persons and asked them if he was their representative. [see Pg. 215 of

the record of appeal]. However, I am unable to fault the trial Judge on his assessment of the requirements of Order I rule s of the Civil Procedure Rules SI it-t on Pg.2l6 of the record. I have perused the Appellants' record ofappeal and do not observe any evidence 40


- ⁵ that the l"t Appellant complied with the requirements of Order I Rule 8 of the Civil Procedure Rules SI ;t-t. I have observed that the Appellants'public adverts onPg. 62"2 and azs of the record of appeal did not contain the names of the intended Plaintiffs. Therefore, the purposes of Order l, rule 8(2) cannot be said to have been met. - It is a fundamental requirement that a representative order be advertised as directed by court and it must contain the full list of all identified Plaintiffs and Defendants. This point was illustrated in the decision in Dr. James Rwanyarare & Others v The Attorney General; Constitutional Petition No. 7 of sooz, <luoted in Uganda Freight Forwarders Association of Uganda v The Attorney General & Great lakes Ltd; Constitutional Petition No. 22 of zoog where the Clourt observed that: l0 l5

" Under Order I rules a(t ) of the Ciail Procedure rules, a person may bring a representatiae action with leaue of the trial court. It would haae been at the stage of seeking leaae, that the firrt Peiltioner would haue disclosed tfu identitlt of those to be represented and uhether lu had their blessings to do so. ... we cannot accept. . .. that any spirited person can represent a goup of persons without tfuir knoztledge or consent. That would be undemocratic and could haae far reaching conseq?unces... "

The import of the decision is that it is imperative to notify persons on whose behalf the intended suit is going to be instituted so that they may be aware of the suit and its consequences. There is no list of the Plaintiffs attached to the Plaint on the record. The register of shareholders as a124th May 20l2 attached at Pg. \$5 of the record does not suflice, in my view for the purposes of Order I Rule s of the Civil Procedure Rules, as it was tendered in evidence during the hearing (See Pg. 98 of the record of appeal). There was no sufficient explanation in the record, as to why the list was not advertised, or the members notified prior to the institution of the suit. 25 30

I therefore find that the trial Judge properly evaluated the evidence on this issue and duly considered the law and evidence available. DWI testified during the hearing that he was never contacted before the suit was instituted. Further, the I't Appellant, during cross examination stated to court that he represented only 69 people (pg. g5 of the record of appeal). PWt and Mr Opolot counsel for the appellants undertook to verify that the list of the persons as represented was submitted to court. These contradictions point to the fact that the requirements for a representative action were not met. 35


- ⁵ On issue two, relating to alterations of the memorandum and articles of association of KBC, the trial Judge duly considered the Appellant's evidence, specifically Exhibit Pt, Pz, P+ (Annual General Meeting minutes of the company meeting dated 2nd November 1996), Exhibit Pz and P9. The documents clearly showed that the amendment of the Memorandum and Articles of Association was lawfully done. I have perused the exhibits - and I find no error with their interpretation by the trial Judge. The Appellant, besides offering a narrative of events, has not demonstrated how this finding was made in error. Regarding the decision to transfer business to National Bank of Commerce, the issue was determined on the basis of the provisions of the law in Section 2o(4) of the Companies Act in force at the material time regarding the eflect of change of name. I agree with the l0 - findings of the trial judge on Page 233 of the record of appeal that the business remained where it was, but the company changed its name. I see no reason to depart from this finding. l5 - I am unable to appreciate which evidence regarding the convening of the meetings of the bank could have been omitted or disregarded by the trial Judge. I observe that he duly considered the Appellant's testimony and submissions, but found that there is no evidence to support the allegation that the meetings were not properly convened (PS. 23i of the record). Upon perusal of the record of appeal, I note that there is no mention of the meetings' alleged illegality in the Appellant's written submissions in Page 244-255 of the record ofappeal. 20 25

I therefore consider that grounds 1,2,3 and 5 of theAppeal should fail

Ground Four of the Appeal faults the learned trial Judge for shielding key witnesses such as the 2"d Respondent from being examined and cross-examined even though he had come to court to testify. This is a serious allegation which goes to the root of a fair hearing, and thus this Court must assess it. 30

In my view, the adversarial trial system is based on opposing sides acting as adversaries 35 who compete to convince a judicial officer that their version of facts is the most convincing. The advocates are given the free choice to determine the issues presented to the court, what evidence to adduce in support of their submissions and what witnesses to call. Section l17 of the Evidence Act Cap 6, Laws of Uganda provides that every person is competent to be a witness unless the court considers that the person is prevented 40 from understanding the question put to him, or from giving rational answers to the questions on account of tenderyears, extreme old age, disease, whether of body or mind

or any other cause of some kind. The role of the trial judge in adversarial proceedings is to hold the balance between the contending parties without himself or herself taking part $\mathsf{S}$ in their factual disputations. A court barring a party from testifying has dire consequences and implications on the time-tested principles of a fair trial.

I observe, from the record of appeal, that on the day the case came up for defence hearing (14^th April 2014) on Pg. 130 of the record of appeal, counsel for the Defendants, Dr. $10$ Byamugisha (RIP) informed the trial court that he was ready to proceed with the witness named Twahira Anteli (DW1) and proceeded to examine him. He was further crossexamined by the Plaintiff's lawyer. In addition, he introduced DW2, Kazooba Enock (Pg. 138 of the record of proceedings) and DW3, Mr. Amos Nzeyi (Pg. 136 of the record). All these witnesses were cross-examined by the Plaintiff's counsel.

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I note that on Pg. 189 of the record of proceedings, the Defence Counsel Dr. Byamugisha $(RIP)$ stated that:

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"My lord I think Mr. Nzeyi has covered all the evidence for the defendants, so I think Hon. Amama Mbabazi will not be called to be subject of fishing expedition and we close our case"

I am unable to ascertain from the above information on the record how the trial Judge declined an opportunity to the defendants to adduce any witness, particularly the 2^nd

- $25$ Respondent, Hon. Amama Mbabazi, as the defence counsel clearly informed the court that the witnesses present were more than sufficient and closed their case. I find that the information relied upon by the Appellant in the preparation of this ground of appeal does not form part of the record of proceedings in this case. - The record of proceedings is evidence of what transpires in court. I know that the duty 30 of this court, in reference to an appeal requires the court to consider the record of appeal. Matters outside the record of appeal cannot be the basis of adjudication by the court. See R v Pandya $[1957]$ EA 336 - 35 Therefore, it is my finding that the ground 4 of the Appeal accordingly fails. - ii. The submissions in support of the Appeal filed by the Appellants offend rule 98(1) of the Court of Appeal rules.

I am in agreement with counsel for the Respondents on the written submissions lodged in this Court by the Appellant. The submissions did not address or speak to any of the


⁵ grounds of appeal as raised in the Memorandum of Appeal and only oflered a factual narrative of the events leading up to the Appeal. I find that they did, in fact offend rule 9s(l) of this Court's rules which provides that:

#### Presen ta tion of arguments in wri ting.

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(t) Any parg to an appeal who does not Intend to appear in person or by adaocate at thz fuaring of thz appeal may lodge in tfu regtstry a statement in utriting of his or ktr arguments in support of or in opposttion to thz appeal or the ross-appeal if an!, as the case may be, and shall, before or within seuen days aJter lodgtng it, serue a copy of it on the other party or on each party appearing in person or separately represented.

However, as noted by counsel for the Respondents, it is my view that an appeal cannot be dismissed on this ground alone, as the court is still seized with the duty to re-evaluate the evidence and arrive at its own conclusion regardless of the input by the parties pursuant to Rule 9o of the Judicature (Court of Appeal rules) Directions SI rg-ro, and the decisions of Watt v Thomas 119417 2 ALL ER 58,1 & Okeno v Republic [tszz] EA

ee. (supra)

I accordingly overrule this objection, as I have addressed the substance of the Appellants' grounds of appeal above. 25

### Th.e substance of tfu Appea[ being rights to shares in KBC or NBC has been oaertaken by eaents thzreby rendering tfu Appeal moot.

The Respondents assert that the substance of the suit in the lower Court which can be gleaned from the prayers in the Plaint is for a shareholding in the now defunct KBC/NBC as the said bank was taken over and sold by the Central Bank. The Appeal has therefore been overtaken by events and in entertaining it, court will be carrying out an academic exercise. As is the case with the other issues raised, the Appellant did not address this Court, by way of reply, on this point. 30 35

The doctrine of mootness applies to the eflect that even if the court went ahead to deliberate on the matter before it, the decision will not have the effect of resolving any real controversy between the parties, because it is no longer alive or existent. Courts of

law exist to address real disputes rather than academic ones to ensure that both parties have a full stake in the outcome, but also because it is not worthwhile for court to allocate its scarce judicial resources to adjudicate a moot issue. 40

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The East African Court of Justice in the case of **Legal Brains Trust Ltd v Attorney** General of Uganda EACJ Appeal No. 4 of 2012, in reliance on the doctrine of mootness, found that the matter was moot due to the fact that the Anti-Homosexuality Act challenged in the reference had ceased to exist at the time of hearing the suit. The Court noted that;

"In this regard, it is a cardinal doctrine of our jurisprudence that a court of law will not adjudicate hypothetical questions- namely, those concerning which no real dispute exists. A court will not hear a case in abstract, or one which is purely academic or speculative in nature- about which there exists no underlying facts in contention...... the resulting exercise would be an abuse of court process"

The Courts have further applied this principle in the case of **Justice Okumu Wengi v** Attorney General of Uganda; (2007) 600 KALR wherein it was held that;

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"Courts of law do not decide cases where no live dispute exists between the parties. Courts do not decide cases or issue orders for academic purposes only. Courts cannot issue orders where the issues in dispute have been removed or merely no longer exist-it is now a mere moot case"

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$30$

The doctrine was principally defined and illustrated in the persuasive case of **Borowski** v Attorney General of Canada; (1989) S. C. R 342 wherein the Court held that:

"The doctrine of mootness is an aspect of a general policy practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the Court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the Court will have no practical effect on such rights, the court declines to hear the case...."

The East African Court of Justice in; Alcon International Ltd v Standard Chartered Bank of Uganda, the Attorney General of Uganda and the Registrar, High Court of Uganda, EACJ Appeal No. 3 of 2013 relying on the Borowski v Attorney General of Canada (supra) stated at Pg. 34-35 that;

"The raison d^etre of Courts of justice is to give binding decisions on live disputes submitted to them by the parties, or, where applicable, to render an advisory opinion in limited cases

Cheon

⁵ where thz constitutiae constittttions, statutes or treaties so proaides. If there is no liae dispute for resolutiory a court of justice utould be wasting the public resources olf tinu, personnel and rnoney by engaging in a fittile and aain erposition of the law. Thz erposition of the law in thz abstract is in thc proaince of acodemics, and not rf th, Cotrts ofjustice"

I have perused the record of Appeal and have established that the Appellant's amended Plaint (Pg. 625-622 of the Record of Appeal) sought orders of a declaration that the Respondent's actions jointly and severally, which disregarded the Memorandum and Articles of Association were unlawful, fraudulent and detrimental to KBC, a declaration that the purported transformation of KBC into NBC was fraudulent, and the sale and l0

distribution of shares consequent was fraudulent, illegal and void. The Appellants' sought an order that the Registrar of Companies be directed to immediately correct the register and other records to revert to the position KBC would have been in if the Respondents had not unlawfully interfered with it. t5

I take judicial notice of the circumstances of the National Bank of Commerce as being defunct and liquidated by the Central Bank. I know that the Constitutional Court of Uganda traversed, from a constitutional perspective, the legaiity of the liquidation and the sale of the National Bank of Commerce by the Central Bank in the decision of Humphrey Nzeyi v Bank of Uganda and the Attorney General; Constitutional Petition No. 4,2 of zota; In this decision, the Constitutional Court fbund that the prudential measures upon which the Bank of Uganda based, in taking over and selling the National Bank of Commerce are permitted under the Constitution, which gives BOU powers, exercisable in the public interest, to maintain the stability of financial institutions. This decision affirms the facts that NBC's license was revoked and the bank was liquidated 20 25

by the Central Bank. 30

> Therefore, in the premises, it is unlikely that any finding by this Court in this case will have the eflect of overturning the liquidation of NBC or the sale of the shares of its shareholders in the liquidation proceedings so as to revert the company to Kigezi Bank

of Commerce. It is therefore impossible, in my opinion, to issue an order to the Registrar of Companies to revert the status of the company to the position it would have been in if the Respondents had not acted in any way. I find that traversing this aspect will be an academic endeavour and the appeal is therefore affected by the doctrine of mootness. 35

## 40 Decision

Accordingly, this appeal fails and is hereby dismissed.


As to costs, I award no costs to the Respondents. The parties hereto shall bear their own $\mathsf{S}$ $\hskip.03cm costs \hskip.03cm$

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Dated at Kampala this $27$ ^th day of $501$ July 2023

$CR$

**CHRISTOPHER GASHIRABAKE** JUSTICE OF APPEAL

## THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

CIVIL APPEAL NO. 189 OF 2014 (Arising from Civil Suit No. 320 of 2010)

HON. JUSTICE PROF. G. W. KANYEIHAMBA & 320 OTHERS

**APPELLANTS**

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#### **VERSUS**

- 1. AMOS NZEYI - 2. AMAMA MBABAZI - 3. RUHAKANA RUGUNDA - 4. ATTORNEY GENERAL - 5. NATIONAL BANK OF COMMERCE $==========$ **RESPONDENTS**

## HON. MR. JUSTICE RICHARD BUTEERA, DCJ CORAM: HON. LADY JUSTICE CATHERINE BAMUGEMEREIRE, JA HON. MR. JUSTICE CHRISTOPHER GASHIRABAKE, JA

## JUDGMENT OF RICHARD BUTEERA, DCJ

I have had the opportunity of reading in draft the Judgment of Justice Christopher Gashirabake, JA.

I agree with the Judgment, the reasons and proposed orders.

As Bamugemereire, JA also agrees, the Appeal is dismissed with no orders to costs.

Dated this $27^{th}$ day of ...................................

DEPUTY CHIEF JUSTICE

### THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CIVIL APPEAL NO.189 OF 2014 ARISING FROM CIVIL SUIT NO.361 OF 2010

### CORAM: HON. MR. JUSTICE RICHARD BUTEERA, DCJ HON. LADY JUSTICE CATHERINE BAMUGEMEREIRE, JA HON. MR. JUSTICE CHRISTOHER GASHIRABAKE, JA

#### HON. PROF. JUSTICE G. W. KANYEIHAMBA & 320 ORS :::::::::::::::::::::::::::::::::::

#### **VERSUS**

- 1. AMOS NZEYI - 2. AMAMA MBABAZI - 3. RUHAKANA RUGUNDA - 4. ATTORNEY GENERAL - 5. NATIONAL BANK OF COMMERCE :::::::::::::::::::::::::::::::::::

(Appeal from the decision of the High Court Commercial Division in Civil Suit No.361 of 2010 presided over by David. K. Wangutusi j on 10^th September 2014)

#### JUDGMENT OF CATHERINE BAMUGEMEREIRE JA

I have had the privilege to read, in draft, the Judgment of my learned brother, Christopher Gashirabake JA. I am in agreement with his reasoning and conclusions save for the question of costs. I would make no orders as to costs.

| Dated this<br>$25$ | day of. | 2023. | |--------------------|---------|-------| | <b>HELLARD</b> | | |

**Catherine Bamugemereire Justice Of Appeal**