[2010] UGCC 11

# THE REPUBLIC OF UGANDA

### IN THE CONSTITUTIONAL COURT OF UGANDA, AT KAMPALA

HON. JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ $CORAM:$ HON. JUSTICE A. E. N. MPAGI-BAHIGEINE, JA HON. JUSTICE S. B. K. KAVUMA, JA

# CIVIL APPEAL NO. 13 OF 2009

$10$

DR. AHMED MUHAMMED KISUULE...................................

### **VERSUS**

### GREENLAND BANK LTD (IN LIQUIDATION)............ RESPONDENT

(Appeal against the decision of Lady Justice M. S. Arach-Amoko dated 24^th October, 2008 in Misc. Application No. 616 of 2007 at High Court at Kampala – arising out of HCS No. 469 of 2001)

$20$

#### JUDGMENT OF HON. LADY JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ

I have had the advantage of reading the draft judgment by Alice E. N. Mpagi-Bahigeine, JA. I concur and I have nothing useful to add. Since Kavuma, JA agrees, the appeal is dismissed with the orders proposed by Alice E. N. Bahigeine, JA.

$\frac{1}{2}$ day of $\frac{1}{2}$ $2010$ Dated at Kampala this.....

L. E. M. Mukasa-Kikonyogo DEPUTY CHIEF JUSTICE

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CIVIL APPEAL NO. 13 OF 2009 DR. AHMED MUHAMMED KISSULE ::::::::::::::::::::::::::: APPELLANT $10$ **VERSUS**

## **GREENLAND BANK LTD (IN LIQUIDATION) ::::: RESPONDENTS**

(Appeal against the decision of Hon. Lady Justice M. S. Arach-Amoko dated 24^th October, 2008 in Misc. *Application No. 616 of 2007 at High Court at Kampala –arising out of HCS No. 469 of 2001)*

$15$

$\varsigma$

# Coram: Hon. Justice L. E. M. Mukasa Kikonyogo, DCJ Hon. Justice A. E. N. Mpagi- Bahigeine, JA Hon. Justice S. B. K. Kavuma, JA

#### Judgment of A. E. N. Mpagi Bahigeine, JA 20

This appeal arises from the ruling/decision of the High Court (Arach – Amoko. J) at Kampala, in Misc. Application No. 616 of 2007, dismissing the appellant's application for review of the court's judgment in HCCS No. 469 of 2001, dated 3-10-2005.

The background is as follows. The appellant together with one Kiriisa jointly obtained an over draft facility from the respondent Bank on the 17^th November 1995, in respect of which the appellant deposited two certificates of title in respect of his land, comprised in Block 27 Plots 246 and 238 at

5 Makerere Kikoni. Subsequently the borrowers incurred problerns with their O business and hence were unable to lneet their obligations, towards the respondent

Kiriisa droppeci out ol the business and the appellant solely took over the l0 loan. He also defaulted as a result of which the respondent sold ofT the two plots realising only Shs. 7 , 265,0001: which was credited to his account. As at 7-03-01. a total of Shs. 78, 197,9851: remained outstanding on the appellant's account for which the respondent sued and obtained the decree atblementioned. on 03- I 0-2005

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The appellant sought a review of the said judgment and decree vide Misc. Application No.6l612007, on the ground that he had discovered a letter dated 17'h July 1998, as a new and important matter of evidence which he was unable to produce at the trial. This letter purported to have been written by the respondent acceeding to the appellant's request to have the interest on the loan fiozen. This application tbr review was dismissed with costs to the respondent.

Hence this appeal.

- The agreed issues at the scheduling conference were: $\mathsf{S}$ - 1. Whether the learned trial Judge erred in law and fact when she dismissed the appellant's application for review on the basis that the letter dated 14^th July 1998 was no discovery of a new and important matter of evidence. - 2. If issue one is answered in the affirmative what is its effect on the $10$ judgment.

Mr. Semakula Muganura Charles appeared for the appellant while Mr. Basaza Wasswa represented the respondent.

- Learned counsel for the appellant outlined the law regarding judicial review 15 as provided under section 82 of the Civil Procedure Act and Order 46 rule 1 Civil Procedure Rules and also referred to the case of Nakivubo **Chemists (U) Ltd (1979) HCB 12.** - He argued that the letter of 14^th July 1998 was new and important matter of 20 evidence not available to the appellant during the hearing of the main suit. It formed the basis of the application for review of the court's decision on the ground that the said letter was new and important piece of evidence not available during the hearing.

In his atlldavit in support of the application (paragraph 9) the appellant O deponed that the interest on the principal sutn was waived. By the said letter, Ex P3, the respondent infbrrned the appellant that a new account No. I 049 I 9 had been opened in the appellant's name and tliat the old accoLlnt had been closed. In the same latter the respondent bank accepted to waive the interest t0 and to extend the repayrnent period to (20) twenty rnonths.

> l-earned counsel contended that the loan balance due to be paid to the respondent was, according to the old statement ofaccount Ex. Pl l only Shs l0 rnillion and yet the statelnent Ex. P5 which is the new account showed ^a

^I5 ditterent ligure of sns.4 4, 669.7 50.

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He submitted that the lower court never ret'erred to these docLllnents. Had the letter in question been available at the trial it would have signilicantly changed the outcome of the judgrnent, the issue being whether the plaintiff waived or tioze the interests or not. All the ibur issues before the learned .judge revolved around the question of the interest. Thus the letter was sign iticant

In reply, learned counsel for the respondent agreed with the leamed judge's refusal to review the judgment on the ground that the letter of t4'h July ¹⁹⁹⁸

was not new and irnportant piece of evidence that could not have been O plotlucetl lt the trill.

l-clrncd couns,rl stressecl that Ortler {6 rulc 3 (2) c'rtioins alt apprlicant lor ^I udicial review to strictl prove that they had discovered new and irnportant evidence which could not be produced at the trial before j udgment was entered. He maintained the letter of l4'l' July 1998 never existed at all. The respondent Bank never corresponded with the appellant regarding the

waiver of interest. The said letter in question only surfaced five years later in 2007. It is a rnade up story. [t was thus prayed that the appeal be disrnissed with costs.

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The learned trial judge observed:

"l have carefully examined the record:rnd considered the arguments from both sides. I must say, I am inclined to agree rvith the respondent's counsel that the letter is suspect. Several reasons were lo advanced but a ferv of important (sic) ones. First of all,' the source from thc Riladh Embass.v- is suspectetl. Mr. Sekintli who is statetl to havc discovered thc said letter should have s\*'orn an affidavit to confirnr the circunrstances un'tcr uhich hc nrade thc tliscotcrr. All rre hal'c is ^a mere photocopy of a letter purportedly signetl by Mr' Sekindi. There is

also no affidavit or even forwarding letters from Nabatanzi Twaha who is purported to have received them ancl forrvarded them to the applicant here in Kampala.

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Secondll , the applicant has never mentioned the existence of such an important letter before or during the proceedings. The plaint filed on lTtr' October 2001 is clear. The respondent tlemanded Shs. 78, 196,985 as the total debt due as a result of a loan advanced to the applicant. The respondent attachetl a letter tlatetl l6tr' ..lune 1998 as annexture "8" l0 (later on Exhibit P3 to the plaint no mention of the letter was made at the time. The applicant u'as only' talking of a promise by l5 the bank to stop u'hat he termed 'crippling in te rest' Again there wils no mention of a lettcr rvas made (sic) in time rvritten statcment of defence. lf thc letter existed as thc applicant alleges and he couldn't trace it, he rvoultl at lcast havc mentioned it, but he didn't even du ring his oral testimonv tn l0 court, the letter of l4tr' .f ulv 1998 relied on wAs not mentioned by the ^app lica n t"

Order 46 r 3 (2) specifically enioins the applicant to strictly prove that such intended evidence ol'matter was not within his knowledge or could not be

) adduced by hirn or her when the decree was passed' ULC v. James Mark O Kamoga or James Kamale SCCA No'8 of 2004.

> I entirely agree with the learned judge's observations that there are quite ^a lot curious and un explained lacunae in the appellant's evidence. I would also add that it seems very strange that he could not recall the natne of the

l0 manager of credit Department in Jinja Road branch, whom he dealt with over the issue of waiving the interest. He said.

They accepted. I tlon't rccall the name of thc olficer ^I talked to, but he was the manager of credit Department in Jinja Road ¹,5 Branch. . . .....'

During cross-examination, he mentioned the agreement he made with the said general manager to waive the interest. Surprisingly, he did not have any copy but only 'believed that the record of the said agreement was in possession of the resPondent.'

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He went on to state . They did not cotnmunicate to tne. but in my belie/, there shottld be a record of what took ploce.'

In this case this was an oppoftune time for the appellant to utilize order l0 rule 12 and applied to court for an order of discovery of documents. This methodisapowerfulproceduralinstrumenttoproducefairness,openness and equality in ihe machinery of civil justice'

lo It states:

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"Any party may without filing any affidavit, apply to the court for an orderdirectinganyotherpartytothesuittomakediscoveryonoathof documents, which are or have been in possession or powers relating to any matter in question in the suit"

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Having failed to utilize the said rule it becornes clear that the appellant has no evidence to support his claim that the respondent waived the interest on the loan and as he put it'l don't have any communication that my request was not accepted. This is a very strange way of trying to persuade the court.

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For this application to succeed the appellant had to prove that there had been discovery of new and irnportant evidence which after due diligence was not within his knowledge or could not be produced at the time. In addition the application had to be made without unreasonable delay. The letter in

IJ

⁵ question EX P3 surtaced flve years afier the decree. It carne frorr very O dubious and unsr.rbstantiated sor-rrces. Thele were no af fldavits to verity the soufce Clearly the test in order 46 r 3 (2) has not been met. See Muyodi v' lndustrial and Commercial Developmcnt Corporation and anothcr ('AK 67^)1.

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It is thus beyond argument when one reads the record that in any event the application fbr review could not possibly succeed.

I also can see no relson to allow what I am atiaid I must necessarily regard as a clumsily cooked up story.

l5 It is thus dismissed forthwith with costs.

Dated at Kampala this ll Day of 2009. ++-

l0 Hon. Justice A. E. N. Mpagi-Bahi ne L )

JUSTICE OF APPEAL

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## THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

### CIVIL APPEAL NO. 13 OF 2OO9

DR. AHMED MUHAMMED KISSULE APPELLANTS

#### VERSUS

GREENLAND BANK LTD (IN LIQUIDATION) RESPONDENT

lAppeol agoinst the decision ol Hon. Lddy !ustice M.5. Aruch-Amoko doted 24th october, 2oo8 in Misc. ApPlicotionNo.6T6o|2ooTotHighcourtotKamPala-olisingoutofHc,No.469ol200l]

CORAM: HON. LADY JUSTICEA t. E. M' MUKASA-KIKONYOGO, DCJ

HON. MR. JUSTICE A. E. N,MPAGI-BAHIGEINE, JA

HON. MR. JUSTICE S. B. K. KAVUMA, JA

### JUDGEMENT OF S. B. K. KAVUMA, JA

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I have read, in draft, the judgment of A. E. N. Mpagi-Bahigeine, JA. I entirely agree with the reasoning in it and the orders proposed. I have nothing usefulto add.

| 2010 | |--------------------------------------| | day of<br>la this.<br>Dated at Kampa | | | | | | S. B. K KAV | | | | | | JUSTICE OF APPEAL | | |