[2025] UGCA 88

# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

fCoram: Geoffrey Kryabwire, |tluzamiru lrtl, Kbeedi, and Christopher Gashirabake, JJA]

# CIVIL APPEAL NO. 323 OF 2021

1. MATSIKO SEMU DAVID 2. KUMUKUNDA MARGARET MATSIKO APPELLANTS VERSUS

REV. DR. GRACE PATRICK KARAMURA RESPONDENT

[A,ppealfrom the decision of the High Court of Uganda at the Commercial Division (Adonyo, J) delivered on the 17tn of August 2020 in ltliscellaneous Application No. 842 of 20181

## JUDGMENT OF THE COURT

## Introduction

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t1] This is an appeal from the Ruling and Orders of the Hon. Dr. Justice Henry Peter Adonyo of the Commercial Division of the High Court of Uganda at Kampala dated the 17tn of August 2020by which he dismissed High Court Miscellaneous Application No. 842of 2018 with costs to the Respondent.

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# Backqround facts

l2l The facts of this case are not contentious. The Respondent instituted a suit against the Appellant under the Summary Procedure Order 36 of the Civil Procedure Rules (CPR) for recovery of Ugx 370,763,200/= with interest at the rate of 4o/o pil month from the 1s of August 2014 till payment in full, vide: High Court Civil Suit IVo. 566 of 2014 Rev. Dr. Grace Patrick Karamura Vs Matsiko Semu David and Kamukunda Margaret Matsiko.

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- t3l The Respondent also sought costs of the suit. - t4l lt was the Respondent's case before the High Court that on different occasions between 2012 and 2014 the Appellant borrowed money from the Respondent to the tune of UGX 437,000,000 at an interest rate of 4o/o per month and failed to repay in full. By the time the Respondent filed the suit in the High Court, the Appellant had made some partial payments leaving a balance of UGX 370,763,200 as due and owing.

### Partial Consent Settlement

- tsl The Appellants filed High Court Miscellaneous Application No. 759 of 2014 in the Commercial Division seeking leave to appear and defend the main suit. When the application came up for disposal before Hon. Justice Billy Kainamura on the 11tn of December 2014, the Appellants admitted liability in the sum of Ugx 234,170,000/= and Judgment was entered in favour of the Respondent for that sum. The Appellants were also granted leave to appear and defend the suit. - t6l ln their Written Statement of Defence (WSD) dated the 17th December 2014 the Appellants reiterated their admission of only the sum of 234,170,000/= but denied the rest of the claim. The Respondent filed his Reply to the WSD in the Court on 06.01 .2015. Thereafter the matter went on trial inter pafties by way of Witness Statements

### Decision of the trial Court

17) ln his Judgment dated 01.06.2017 and delivered on 8th June 2017, Hon, Justice Billy Kainamura set out the three agreed issues that were for determination by the Court thus:

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- i. "Whether the [Appellants] are still indebted to the [Respondent] in the sum of UGX 183,829,600/= - ii. Whether fhe fRespondent] is entitled to interest of 4% on the balance claimed from December 2014, - iii. What remedies are available to the parties?" - t8l As far as relevant to the issue before Court, the trial Court found as follows:

"...1n my view the fRespondenf] is therefore entitled to interest, However, ^I agree with Counsel for the [Appellants] that 48% interest per annum is excessive. ln my view, the [Respondent] should have charged interest of 15% per annum.

Accordingly, this is fhe interest rate that should be factored in arriving at the sums due to fhe fRespondent]if any.

Taking the circumsfances of this case into consideration including the consent order of 11tn December 2014, the [Respondent] is awarded half of the taxed cosfs. "

tgl On 25tn July 2017, the Respondent's Counsel extracted a decree from the Judgment of the trial Court and sent the same to the Appellants' Counsel for approval/signature. The Appellants' Counsel disputed the contents of the decree and did not approve of it. The Respondent sought intervention of the Registrar. On 2nd November 2017, Counsel for the Appellants and the Respondent appeared before the Registrar for purposes of resolving the disputed contents of the decree, but this was not successful, and the file was referred by the Registrar to the trial Judge for resolution.

t10l On 4th December 2017 both parties appeared before Hon. Justice Billy Kainamura, and he gave directions on how the parties should extract the decree arising from the Judgment of the Court. The resultant decree which indicates that it was jointly extracted by the advocates of both parties and signed by the trial Judge on the 2nd of May 2018 in the presence of the advocates of the parties reads thus:

#### "Decree

This matter coming up for final disposa/ on the 08th day of June 2017 before Hon. Justice Billy Kainamura, in the presence of Atlr. Atlartin Atlbanza for the Plaintiff and Arlr. Patrick Alunga for the defendants, if is hereby decreed as follows:

- 1) The interesf rafe of 4% per month which converts to 48% per annum charged on the defendant was excessiye. - 2) The Plaintiff is awarded interest at the rate of 15% per annum. - 3) That the interest rate of 15% per annum be applied to the entire loan amount of Ugx 437,000,000/= using the reducing method balance in arriving at the surns due to the Plaintiff , if any. - 4) The Plaintiff is awarded half the taxed cosfs.

Given under my hand and the seal of this Honourable Court this 2no day of May 2018

Signature (Billy Kain amura)

JUDGE

Jointly extracted by:

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1. Baruga Associafed Advocates,

3,0 Floor Centenary Bank Building, Mukono

Plot 22 Jinja - Kampala High Way,

P. O. Box 686, Mukono

2. Birungyi, Barata & Associafes,

Legal and Tax Consultants,

Plot 14 Archer Road - Kololo

P. O. Box 21086, Kampala'

#### Application to set aside the decree

- [1 1] On the 23,d of October 2018, the Appellants filed High Court Miscellaneous Application No. 842 of 2018 against the Respondent seeking an order setting aside the above decree for being at variance with the Judgment of His Lordship Hon. Justice Billy Kainamura in Civil Suit 566 of 2018. The application was by way of Notice of Motion under Section 33 of the Judicature Act, Cap. 6, Section 98 of the Civil Procedure Act, Cap.71 (CPA), Order 21 Rule 6 and Order 52 Rules 1 and 2 of the CPR, S.l. No. 71 - 1. - l12l The Respondent opposed the application - [13] ln its Ruling dated the 17th August 2020, the High Court presided over by the Hon. Dr. Justice Henry Peter Adonyo dismissed the application with costs having found that '...[the] application is misguided, misplaced andis nof the proper oneto challenge a

clear interpretation rendered to a Judgment by the Court itself which resulted in the extraction of a decree which the Court itself approved in the presence of the parties."

## The Appea!

- l14l Dissatisfied with the Ruling of Hon. Justice Henry Peter Adonyo, the Appellants lodged an Appeal in this Court on the following grounds: - The learned trial Judge erred in fact and law when he upheld the extracted decree for not being at variance with the Judgment of the court in High Court, Commercial Division Civil SuittYo. 566 of 2014. 1 - 2. The learned trial Judge erred in fact and law when he held that the Appellants' Application l\Io. 842 of 2018 was improper.

## Representation

- [15] When this Appeal came up for hearing, Mr. Patrick Alunga Alvarez appeared for the Appellants while Mr. John Baruga Asiimwe and Mr. Patrick Kabagambe appeared for the Respondent, - [16] Leave was granted to both parties to have their written submissions adopted by this Court as their oral arguments in the determination of the Appeal.

### Duty of the Court

l17l As a first Appellate Court, it is the duty of this Court to re-appraise all evidence that was adduced before the trial Court and come to its own conclusions of fact and law while making allowance for the fact that the Court neither saw nor heard the witnesses testify. See: Rule 30 (1)(a) of the Judicature (Court of Appeal Rules) Directions, S.l 13-10, and Fredrick Zaabwe vs. Orient Bank Ltd Civil Appeal No. 4 of 2006.

Page 5 of 12 [18] Similarly, in Kfamunte Henry vs. Uganda SCU Cr. Appeal no. 10 of 1997, lhe Supreme Court of Uganda held that:

"The first appellate couft has a duty to review the evidence of the case, to reconsider the materials before the trial judge and make up its own mind not disregarding the Judgment Appealed from but carefully weighing and considering it."

[19] lt is with the above principles in mind that we now proceed to consider and resolve the appeal starting with ground two since its resolution impacts on the fate of ground one.

## Ground two

[20] Ground two of the appeal was couched as follows:

# The learned trial Judge erred in fact and law when he held that the Appellants' Application No.842 of 2018 was improper.

- 121) The gist of the Appellants' complaint in ground two is about the finding of the High Court presided over by Hon. Justice Dr. Adonyo about the procedural propriety of High Court Miscellaneous Application No. 842 of 2018 to challenge the alleged variation between the Judgment of Hon. Justice Billy Kainamura in Civil Suit No. 566 of 2014 dated 01 .06.2017 and the Decree signed by the same Judge on the 2nd of May 2018. - l22l ln their submissions, the Appellants argued that Miscellaneous Application No. 842 of 2018 was properly brought before the Court under Section 33 of the Judicature Act, Section 98 of the CPA, and Order 21 Rule 6 of the CPR and Order 52 Rules 1 and 2 for purposes of rectifying the anomaly in the extracted decree. That once such an "illegality" was brought to the attention of the Court, it was duty bound to resolve it regardless of the procedure adopted.

- t23l The Appellants further argued that existence of other modes of redressing the Appellants' grievance suggested by the High Court like the right of appeal and the right to apply for review under Order 46 rule 1 CPR could not bar the Appellants from exercising their right of choice of the procedure they found most appropriate to address their grievances. - l24l The Respondent disagreed with the Appellants and supported the High Court's finding that the Appellants were only circumventing the procedure laid out for persons aggrieved by a decree and that the Appellants ought to have appealed if they felt aggrieved by the decree of the Court, - [25] The Appellants in their Rejoinder reiterated the substance of their earlier submissions. - t26l When dealing with the procedural propriety of High Court Miscellaneous Application No. 842 of 2018 the trial Judge held thus:

'As a matter of fact, and in my considered opinion and view / suppose that an Appeal or actions towards subjecting the decree to a review would have been the more appropriate process for the remedies soughf here as it is clear from the arguments of the Applicants that they were not safisfied with the content of the Judgment of the court and even indeed the content of the decree which indicates as to how much is owed to the Respondent and determination of which would require the court to re-examine the lssues which were raised at the initial trial which subseguently resulted in the court's decision and the extracted decree arising from the said Judgment since the applicants claim the same altered thei rights.

ln the circumstances, / would find that this Applicafion is misguided, misplaced and is nof the proper one to challenge a clear interpretation rendered to a Judgment by the court itself which resulted in the ertraction of a decree which the court itself approved in the presence of the parties..."

l27l A perusal of the Record of Appeal shows that before making the above finding, the trial Judge went to great length to set out the background circumstances preceding the signing of the contested decree by his predecessor, Hon. Mr, Justice Billy Kainamura, on the 2rd of May 2018. We have already captured that background in paragraphs 9

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and 10 of this Judgment. But for purposes of emphasis, we can repeat and state that following the failure of the Appellants' Counsel to agree on the content of the decree which was extracted by the Respondent's Counsel, the matter was referred to the Registrar for resolution. The Parties' Advocates again failed to resolve the matter when they appeared before the Registrar. The Registrar in turn fonrvarded the matter to the trial Judge himself to resolve. The trial Judge guided the Parties' advocates and the outcome was the decree which was jointly extracted by the Parties' advocates and personally approved and signed by the trial Judge on the 02no of May 2018 in the presence of the advocates of all the litigants. This is the decree which the Appellants subsequently sought to set aside by way of the Notice of Motion filed in Miscellaneous Application No. 842 of 2018 under Order 21 Rule 6 of the CPR, Section 33 of the Judicature Act, and Section 98 of the CPA.

- [28] Hon. Justice Dr. Adonyo found that it was procedurally wrong for him to set aside ^a decree signed by his brother Judge, Hon. Justice Billy Kainamura. We find no reason to fault him for such a finding. The moment Hon. Justice Billy Kainamura resolved the Appellants' complaint the way he did, the High Court became functus officio. Another Judge of the same Court was not legally competent to resolve a dispute involving the same parties in respect of the same matter save in very exceptional circumstances permitted by the law like under the slip rule provided for by Section 99 of the CPA, and the review powers provided for under Section 82 of the CPA and Order 46 of the CPR. The Appellants have categorically stated in their submissions that Order 46 of the CPR was inapplicable to their matter. - [29] We have considered the laws under which the Appellants sought to set aside the impugned decree of the trial Court. Both Section 33 of the Judicature Act and Section 98 of the CPA which confer residual powers to the High Court were not applicable in

the circumstances of this case. As for the last leg on which the application was standing, namely, Order 21 rule 6 CPR, it states thus:

# "6. Contents of decree.

(1) The decree shall agree with the Judgment; it shall contain the number of the suit, the names and descriptions of the parties and particulars of the claim, and it shall specify clearly the relief granted or other determination of the suit.

(2) The decree sha// a/so state by whom or out of what property or in what proportion the cosfs incurred in the suit are to be paid.

(3) The court may direct that the cosfs paya ble to one party by the other shall be sef off against any sum which is admitted or found to be due from the former to the latter."

- [30] ln our view, the above provision ought NOT to be read in isolation of the subsequent Rule of the same Order so as to have its full meaning in the context of this case. This is in accordance with one of the well-established principles of interpretation of statutes and Deeds to the effect that they must be construed as a whole, so that internal inconsistencies are avoided. See: Oxford Dictionary of Law, 2009, 7tn Edition, p. 295 - [31] Rule 7 of Order 21 of the CPR provides as follows

#### 7, Preparation of decrees and orders.

(l) A decree shall bear the date of the day on which the Judgment was delivered.

(2) lt shall be the duty of the party who is successful in a suit in the High Court to prepare without delay a draft decree and submit it for the approval of the other parties to the suit, who shall approve it with or without amendment, or reject it, without undue delay. lf the draft is approved by the parties, it shall be submitted to the registrar who, if he or she is satlsfied that it is drawn up in accordance with the Judgment, shall sign and sealthe decree accordingly. lf allthe parlies and the registrar do not agree upon the terms of the decree within such time as fhe

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registrar shallfix, it shall be settled by the judge who pronounced the Judgment, and the parties shall be entitled to be heard on the terms of the decree if they so desire.

- [32] The import of Rules 6 and 7 of Order 21 of the CPR when read together is that the contents of the decree must be consistent with the Judgment from which the decree is extracted. And that if there is any complaint as to whether the decree as extracted by the successful party is not consistent with the Judgment, the ultimate adjudicator is the trial Judge. From the proceedings of the trial Court, this is exactly what transpired in the instant matter. - [33] The question that arises is that where a party is still aggrieved with the resolution rendered by the trial Judge, can he/she/it still apply to the same Court to review and set aside the impugned decree for being at variance with the Judgment pursuant to Order 21 Rule 6 of the CPR as happened in the instant case? - t34l As we have already stated, the trial Court held in the negative. We have no reason to fault that decision, The High Court was functus officio and had no jurisdiction to grant the remedies sought by the Appellants in Miscellaneous Application No. 842 of 2018. Ground two accordingly succeeds. - t35] ln our view, the resolution of ground two is sufficient to dispose of the whole appeal. - t36] We also noted that the orders of the High Court made under Order 21 of the CPR are not among those in respect of which an aggrieved party has an automatic right of appeal to this Court. However, as none of the parties was given an opportunity to address us on the propriety of the instant appeal, we did not evaluate this aspect of the appeal.

## Disposition

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[37] This Appeal is hereby dismissed with costs to the Respondent.

Dated at Kampala this ...|,?.day of . ..){\4n . J. ²⁰²⁵

s

,

KIRYABWIRE Justice of Appeal

MUZAMIRU MUTANGULA KIBEED! Justice of Appeal

t.

CHRISTOPHER RABAKE Justice of Appeal

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