[2001] UGCA 27

#### THE REPUBLIC OF UGANDA

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

#### CORAM: HON. MR. JUSTICE C. M. KATO, JA. HON. MR. JUSTICE S. G. ENGWAU, JA. HON. MR. JUSTICE A. TWINOMUJUNI, JA.

### CIVIL APPEAL NO.63 OF 1999

#### MPUNGU & SONS TRANSPORTERS LTD APPELLANT

#### VERSUS

ATTORNEY GENERAL 1

KAMBE COFFEE FACTORY..... .,... RESPONDENTS 2

# 20 JUDGMENT OF C. M. KATO, JA.

This is an appeal against the judgment of the High Court sitting at Kampala dated 31/5/99. The appellant and the 2nd respondent, at the time the suit was filed, were engaged in the business of transport as bus operators. The appellant obtained a licence to operate a route known as SCL, 2A: Kampala - Kafu-Masindi route. lt obtained the licence after another company called Super Coach had been licenced to operate on the same route. Later on the 2nd respondent was also granted a licence to carry passengers on the same route. The appellant was not happy with this third operator. He filed this suit against the l"trespondent in his representative capacity for the acts or omissions of the Transport Licencing Board and against the second respondent for its direct interference with the operation on the route. By this suit, the appellant sought from the trial court a declaration that the licence granted to the second respondent was invalid. lt also claimed special and general damages, plus an injunction prohibiting the second respondent from operating along the route under dispute. The learned trial judge dismissed the suit with costs, hence this appeal.

Four grounds of appeal were preferred, they are

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- The learned trial judge erred in relying upon a report which was not admitted in evidence but merely presented by the Secretary of the Transport Licensing Board (DWl/DW3) fot identification (lDl). 1 - The learned trial judge failed to evaluate the evidence adduced in court regarding the viability of the disputed route for the 3 (bus) operators. 2

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The learned trial judge failed to evaluate the evidence adduced in coutl as to the alleged malafide and/or fraud in the licensing and/or authorizalion ol the ld respondent to operate on the disputed route.

#### The learned trial judge erred in fact and in law in not granting the remedies sought. 4

At the hearing of the appeal the second ground was abandoned Mr. Muzamiru, who appeared for the appellant, argued the remaining three grounds separately in the order they are listed above. On the first ground, he 20 argued that the judge was wrong to have relied on a document (lDl) which had been only presented to court for identification purposes but was never tendered in evidence as an exhibit. ln his view the document was hearsay, as it was not presented by the author He also submrtted that the trial judge was wrong to have invoked the provisions of article 126(2)(e) of the Constitution to lustify his decision

Ms. Mayanja, for the first respondent, submitted that the judge correctly relied on lDl, which was properly tendered by DWI to whom it was addressed, and it was not hearsay ln her view, even if the judge had not relied on the document still his decision would have been the same as there was some other evidence to show that the route was viable to be operated by the three operators.

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On his part, Mr. Mwesigye learned counsel for the second respondent, contended that the judge did not rely on lDl in dismissing the case and that even without the document he would still have come to the same conclusion as the document was only for administrative purposes to ascertain the viability of the route. ln his view the document is irrelevant in this appeal as ground 2 of appeal dealing with viability of the route was abandoned and the document only concerned that point.

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With respect, I do agree with Mr. Mwesigye's contention that lD1, which was a report about the viability of the route, is irrelevant in view of the fact hat ground 2 of appeal which concerned the issue of viability of the route was abandoned. As for the reliance by the judge on Article 126(2)(e) of lhe Constitution, I would say that the judge was not justified to apply that article in order to give weight to an unsigned document (lDl) lt is an accepted principle of our law that an unsigned document has no evidentiary value in view of the decision of this court in: James Rwanvarare and Anothet v Attornev General [Constitutional Petition No. 11 of ¹⁹⁹⁷¹ (unreported). ll was improper for the judge to ignore the requirement of the law under the cover of article 126(2)(e) which was never intended to do away with the rules of procedure. Since lhave held that the document (lDl) was only concerned with the viability of the route for the three bus companies, and ground 2 dealing with that point was abandoned, I find that no miscarriage of justice has been occasioned by the judge's reference to article 126(2)(e) The first ground of appeal must fail t0 20

ln the third ground of appeal, the learned counsel for the appellant raised two points The first point is that the learned trial judge did not accord to the appellant a hearing when the second respondent was being considered for both temporary and permanent licences for the route. Both counsels for the first and second respondents submitted that there was no need to consult the appellant when a temporary licence was being granted. Counsel for the first respondent also submitted that the appellant was invited to attend meetings when the permanent licence was being granted but he refused to attend. On his part the counsel for the second respondent maintained that

under section 88 of the Traffic and Road Safety Act no consultation was necessary before a permanent licence was issued.

Section 95(1 ) of the Traffic and Road Safety Act under which the second respondent was issued a temporary operator's licence does not require other operators of the same route to be consulted by the Transport Licencing Board. The judge was correct in holding so. On the issue of what the parties erroneously refer to as permanent licence, which in fact is a licence for 5 years (See Section 91(5) of the Act), there is no express requirement about consultation with the operators before such a licence is issued. The relevant law on this point is contained in section 91(2)(e) of the Act which reads:

# "91(2) ln considering the grant for a private and contract omnibus operator's licence, the Board shall have due regard to

- (a) - (b) - (c)

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(e) the interests of any person holding omnihus operator's licences over any route or routes or pad thereot or combination of routes or part thereof, and of any persons who are providing transport facilities along or near the route or routes or combination of routes concerned"

ln the instant case it cannot be said with any justification that the interests of the appellant were not taken into account when the second respondent's licence was extended for five years. The interests of the applicant were considered as may be seen in the testimony of Elias Bushobenva (DW1)who was the secretary to the Transport Lrcencing Board who states as follows:

> "lt was resolved that Kambe continue operating the route. We considered therc have been three buses operating before. We thought any problem(s) the time scheduled was

that Mpungu was always No. 2 and Kambe was always No. 3. That according to the advice of the Minister we permitted Kambe to extend to Kampala. We did also consider the demand of the public. Mpungu's vehicle was slow and constantly broke down and passengers spert nights on their journeys and the vehicle was s/ow. So ffie passengers needed etficient service. We requested to put up a new bus but when he got one he sent it to Kabale (sic)".

This piece of evidence clearly shows that before the second respondent was granted extension of his licence the Board complied with the provisions of section 91 (2Xe) of the Act. According to the evidence of DW1 , before the second respondent started operating on the route there were 3 bus companies on the same route namely: Super Coach, M/s. Adire bus and the appellant's bus, in fact the appellant was granted the licence to replace Adure bus which had been burnt in the North. I do not agree with the evidence of the Managing Director of the appellant Company, Mr. George William Mpungu (PW1 ) that the route could not cater for 3 buses when in the past it had been doing so. l0

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Even if the law expressly required the appellant to be consulted, still that consultation was extended to it. According to the evidence of DW1 the appellant was invited to attend the meetings but its representative failed to turn up.

The second point of complaint by the appellant's counsel in respect of ground 3 is that the licence was granted to the second respondent through fraud perpetrated by the first respondent's servants and the second respondent and that there was an element of malefide in the whole exercise. He based his argument on the contents of exhibits P4, PB, p9A and p9B

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which he felt were contradictory.

The issue of fraud and bad faith was pleaded by the appellant in paragraph 6 of the plaint and the trial judge dealt with it in his judgmenl as follows.

> "The third issue was whether the purported licence of the second defendant to operate in the same route with the plaintiff was traudulently done. I included this issue while considering issue No. 2. I do nof see any fraud or bad failh on the part of the T. L. B. and leave alone violation of the principles of natural justice".

I agree with that finding of fact by the trial .judge As for the alleged contradictions in Exp9A and Exp9B, DWI explained, while under crossexamination, that there was an error in Exp9A which was corrected in ExpgB and that is why the former was not signed but the latter was signed. The learned trial judge must have accepted this explanation as genuine before he made his above quoted finding. Exp4 and Exp8, were letters from the secretary to the Board stopping the second respondent from plying the route in dispute and informing it of the Board's intention to allocate it a different 20 route. The trial judge dealt with the two exhibits in his judgment and ruled, quite rightly in my view, that the two documents did not entiile the appellant any remedy. There is no clear explanation as to why the second respondent decided to ignore the directives given in the two documents. What is clear is that the two letters originated from the office of the first respondent's agents. There is nothing in them (letters) suggesting that there was fraud on part of the Board. The mere fact that the second respondent was an undisciplined operator does not per se amount to fraud. Fraud must be stricfly pleaded and proved. Like the trial judge, lfind that the appellant did not prove the alleged fraud to the required standard. The third ground of appeal must also fail.

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The fourth ground of appeal concerns the trial judge's failure to assess the damages he would have granted had he entered judgment in favour of the appellant The two counsel for the respondents submitted that the judge was

correct, as there was no basis for assessing damages since the appellant gave conflicting flgures.

It is an established practice that the trial judge should be mindful to assess the damages even where the plaintiff has lost the case, as was stated in Mute v Elikana 119751 EA 201 at 204:

> "Another unfofiunate aspect of the iudgment is that the judge failed to make a finding as to the damages he would have awarded in the event the claim succeeded. This should always be done fo saye time and costs".

With respect, I do not agree with the counsel for the respondents that there was no basis upon which the assessment could have been made. There were figures given by PWI , albeit contradictory, upon which the assessment would have been based. The judge was wrong in not carrying out part of his duty of assessing damages although he had dismissed the suit. ln my view, this failure by the trial judge did not result in miscarriage of justice to justify interfering with his judgment.

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I would in the result dismiss this appeal with costs in this court and in the court below to the respondents.

Since Engwau J. A. and Twinomujuni J. A. also agree, the appeal is dismissed with costs to the respondents here and in the High Court

Dated at Kampala this -'r-17 o(.i.. .. day of ²⁰⁰¹ A1.il".( t

l0 ft-C. M. Krito

Justice of Appeal.

### THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL AT KAMPALA

#### CORAM: HON. MR. JUSTICE C. M. KATO, JA. HON. MR. JUSTICE S. G. ENGWAU, JA. HON. JUSTICE A. TWINOMUJUNI, JA.

### CIVIL APPEAL NO. 63 OF 1999

### MPUNGU & SONS TRANSPORTERS LTD::::::::::::::::: APPELLANT

#### **VERSUS**

- ATTORNEY GENERAL 1. - $2.$ KAMBE COFFEE FACTORY ::::::::::::::::::::::::::::::::::::

(Appeal from the judgement and decree of the High Court of Uganda at Kampala (Mukanza, J.) dated 31^st May 1999 in Civil Suit No. 192 of 1997)

#### JUDGMENT OF S. G. ENGWAU, JA.

I read the judgement of C. M Kato, JA. in draft form and I agree with the reasoning and conclusion. In the premises, I would dismiss this appeal with costs here and in the court below to the respondents.

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

S. G. ENGWAU JUSTICE OF APPEAL

### THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL AT KAMPALA

## CORAM: HON. MR. JUSTICE C. M. KATO, J. A. HON. MR. JUSTICE S. G. ENGWAU, J. A HON. MR. JUSTICE A. TWINOMUJUNI, J. A.

### **CIVIL APPEAL NO.63 OF 1999**

# MPUNGU & SONS TRANSPORTERS LTD....................................

#### VERSUS

## 1. ATTORNEY GENERAL 2. KAMBE COFFEE FACTORY....................................

(Appeal from the judgment and decree of the High Court of Uganda at Kampala (Mukanza, J.) dated 31^st May 1999 in Civil Suit No.192 of 1997)

### **JUDGMENT OF TWINOMUJUNI, J. A.**

I have had the benefit of reading, in draft, the judgment of my learned brother, Hon. Justice C. M. Kato, J. A. I agree with the reasoning and the conclusion arrived at by him and I have nothing useful to add. I would dismiss this appeal with costs here and in the court below to the respondents.

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