[2003] UGCA 28

# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### HON. JUSTICE G. M. OKELLO, JA. CORAM: HON. JUSTICE S. G. ENGWAU, JA. HON. JUSTICE C. K. BYAMUGISHA, JA.

## CIVIL APPEAL NO. 14 OF 2001

Between

**APPELLANT** ENUSU MUDUWUNI :::::: (Suing by Attorney Mr. Nakwekwe)

#### AND

### 1. MASABA CO-OPERATIVE UNION LTD. 1

2. LWAKHAKHA MEAT SUPPLIERS

<pre>1 :::::::::: ::: RESPONDENT</pre>

[Appeal from the decision of the High Court of Uganda (Kania, J.) dated 12-10-2000 at Mbale in HCCS No. 28 of 1996]

### **JUDGMENT OF G. M. OKELLO, JA.**

This appeal is against the decision of the High Court of Uganda (Kania, J.) dated 12-10-2000 at Mbale in High Court Civil Suit No. 28 of 1990.

The background facts to this appeal are fairly straight forward. The first respondent. Masaba Cooperative Union Ltd.. had a piece of land known as Lwakhakha Farm. It had been demarcated into plots which were let to developers. The appellant occupied plots 18 and 19. Sometimes in 1994. the first respondent had the land resurveyed and re-demarcated into commercial plots. The plot numbering consequently changed. Plots 18 and 19 which the appellant had occupied became plots 10 and 12 Save

for plots 29 31 and 33 whrch vyere reserved for Taxr Park the rest of the plots were advertrsed (by Exh Dl ) for sub-lease to rnterested developers Applications for the plots had to be addressed to the't"'respondents Secretary Manager to reach hrm on or before 19.4-95 The application had to rndicate the plot number apphed for and enclose a non refundable fee of shs.20.00o/= Srttrng tenants would be grven first pnonty consrderatron il they had no rent arrears

On recerpt of Exh D1, the appellant apphed for plot No 10 The first respondent allocated to hrm plot No 10 and allocated plot No 12to the 2m respondent who had apphed for rt Subsequently, the appellant applied by Exh P2 dared 30/5/95

for plot 12 He clarmed that he had been mrstaken wrhen he had applied for plot 10 thrnkrng that ( rncluded plot 12 lnterestrngly, the first respondent by Exh P3 dated 2-G95, also offered that plot to the appellant urhen he had earlier already offered rt to the 2d respondent on G!95 The appellant purportedly accepted the offer and pard the reqursrte premrum The first respondent rssued to the appellant Exh P4. a recerpt acknowledgrng the recerpt of the reqursile premrum pard by the appellant for plot 12

Then the appellant started developrng the plot However on 13-10-95 the Secretary Manager of the first respondent wrote to the appellant a letter Exh P10 askrng hrm to surrender plot '12 because rt had been allocated to the 2E respondent The letter also advrsed the appellant to collect the money he had pad as premrum rn respect of that plot 12 Appellant rgnored that advrce and contrnued wth hrs developmental work of the plot

on 1-7-96 the first respondent agatn wrote to the appellant a letter Exh P10 dtrecltng htm to stop hrs developmental work on plot 12 When the appellant showed no srgn of heeding the first respondent eventually wrthdrew the plot from both the appellant and the 2- respondent The appellant feft aggneved and sued the first and 2\* respondents rn the High court allegrng inter alia fraud agalnst the first respondent Kanra. J heard the cas€ and dismrssed rt hence thls appeal

There are three grounds of appeal framed as follows -

- ..(i) The learned trialiudge erred in lry and fact wtpn he failed to evaluate the evidence on record properly or at all - (ai) The learned trial iudge erred in lry and fact when he held that the respondents were not guilty of fraud when the first respondent allocated tlrc suit property to the second resPondent - (aia) The leamed trial judge occasioned substantial miscarriage of justice when he dismissed tre appellants claim."

ln hrs wntten submtsston Mr Dagrra, leamed counsel for the appeltant' argued grounds 1 and 2 together and then ground 3 separately counsel for the respondents responded tn the same order I also propose to consider those grounds tn a stmtlar order

### Grounds 1 and 2

On these grounds Mr Dagrra, complarned that the leamed tnal ludge failed to properly or at all evaluate the evrdence before hrm and as a result erred -

Frrstly, to find that the sub-lease obtarned by the appellant over plot 12 was rnvalid lf he had properly evaluated the evrdence before htm, Mr Dagtra argued, the leamed ludge would have found that the testimonres of PW1, DW1, DW2 and the documentary evtdence establtshed that the suFlease granted to the appellant over plot 12 was valtd He potnted out that the testrmony of PWl showed that the appellant had applted for plot 12 on 30 t95 The 'l " respondent offered hrm the plot on 2\$-95 and the appellant accepted the ofier on 12€-95 Accordrng to Mr Dagrra, the acceptance of the offer of the sub'lease over plot 12 by the 2- respondent was defecttve rn a number of aspeds namely -

- (a) lt had not been made wrthrn the prescnbed one month penod and - (b) lt had not been accompanred by the reqursfte payment of 70 0o0/= premtum

Leamed counsel pornted out that DW2, the 2\* respondent himself, admrtted that he accepted the offer rn July and pad only 50 000/= premrum By the trme the 2- respondent purportedly acceptd the offer, leamed counsel argued, rt had already elapsed by the operatton of ttme There was therefore, no more any offer to accept and the question of -first in trme, first rn nght- drd not anse

Secondly, to find that the appellant selectrvely and deliberately applied for plot 10 to the exclusron of Plot l2 Leamed couns€l submrtted that this was wrong as the appellant had only been mrsled by the 1"'respondents Foreman to believe that plot 10 rncluded plot 12 Thrs was corroborated by Exh D3, the [st of apphcatrons consrdered on 6-5-95 lt shows that the appellant as an unsuccessful apphcant rn respe.ct of plot 12 Consrdenng appellant as an unsuccessful applrcant for plot12 when he had not applied for rt, leamed counsel argued, meant that the appellant and the 1'' respondent understood that plot 10 rncluded plot 12 Appellant ^s applcatron namrng plot 10 was understood to rnclude plot 12 The 1" respondent did not even rndrcate the reason for the appellant s unsu@ess over plot 12

Thrrdly, to hold that the appellant could not benefit from the 't't respondent ^s po[cy of srttng tenants to be grven pnonty consrderatron because he had rent arrears Thrs was wrong because there was evrdence showing that the 1"'respondent had vaned the condrtrons rn Exh Dl whereby berng rn rent arrears was no longer taken senously According to leamed counsel, the relevant evrdence was Exh D3 Exh D.zl Exh D1 Exh P18 and admrssron of the 1'' respondent that rt drd not ask the appellant to declare drsrnterest rn plot 12 before allocatrng rt to the 2\* respondent. He rehed on

# Sebuliba vs Cooperative Bank Ltd. (1982) HCB 130.

Fourthly to find that the respondents were not gurlty of fraud when -

(a) the appellant had app[ed for plot 10 whrch rncluded plot 12 The 1'' respondents agent knew or ought to have

known that the appellant was a stttng tenant tn those plots but the 1"' respondent fraudulently allocated the plot to the 2- respondent The appellant could not declare hls drstnterest rn plot 12 when he had not s€en the notice requrnng hrm to do so

(b) The 1'' respondent fraudulently allocated plot 't2 to the 2- respondent contrary to fts own policy of gtvtng pnonty consrderatron to srttlng tenants The tnal ludge s reason that appellant had rent arrears was not tenable because there was evrdence showtng changed condrtton rendenng tmmatenal berng rn rent anears Exh P18 and Exh D3 dld not drscrrmrnate between those tn rent arrears and those not rn rent arrears when rt came to gtvtng notice to show drsrnterest

On the other hand Mr Natsomr leamed counsel for the respondents, contended that the trral ludge property evaluated the evrdence on record and came to a nght decrsron supported by the evtdence on record He submrtted that the tnal ludge found that the sutslease obtatned by the appellant over plot 12 was rnvahd firstly because he got rt after the 1'' respondent had granted the same to the 2- respondent Secondly, the appellant had selectrvely and deliberately appled for plot 10 to the exclusron of plot 12 Thrs resulted rnto the 1" respondent allocatlng plot ¹⁰ to the appellant and plot 12 to the 2\* respondent who had applied for rt The evrdence of PW1, DWl. DW2 and documentary exhibtts do not show that the suFlease to the appellant over plot 12 was valtd The evrdence of

DWl showed no dispute that plots at Lwakhakha Farm belong to the 1'' respondent They had to be allocated to rnterested developers tn accordance wrth the condrtions lard down rn Exh. D'1 The condittons w€re -

- (a) lnterested persons had to apply to the Secretary Manager of the 1"' respondent - (b) Apphcant had to rndrcate the plot number applied for and had to accompany the apphcatron by non refundable fee of shs 20 000/= - (c) Apphcatron had to reach the Secretary Manager on or before 194-95 - (d) Srthng tenants were requrred to rndrcate therr rnterest tn thetr plots tn therr app[catron

ln counsel.s vrew, rrhere an agreement was reduced in wnttng by erther consent or requrrement of law, no extnnsrc evtdence was admtssible to atter the terms of the agreement He rehed on S,emakula vs Esekiel Xulondo (1985) HCB 29 as authonty for that proposrtion Oral evrdence should not be accepted to vary the terms of the wntten contract entered rnto wrllingly by the contractrng partres He cfted Anthony Baruqahare vs llarita tttarantabi 1987 HCB 75. BU

Mr Natsomr submrtted that appellant, a stttng tenant of plots 10 and 12, havrng appled only for plot 10 rn response to the advertrsement in Exh Dl

wrthout rndicating hls rnterest for plot 12. could not blame the 1" respondent for not allocatrng plot 12 to hrm Appellants clarm that he had applied for plot 10 thrnkrng that rt rncluded plot 12 could not be befieved. A map. Exh D2 showrng clear layout of the plots at Lwakhakha was posted at Lwakhakha Trading Centre PW1 Mr Nakwekwe. admrtted to have s€en rt before the appellant lodged hrs app[catron for only plot 10

Leamed counsel submrtted that appellant s contentton that by the trme he accepted the ofier over plot 12 the 2\* respondent had not validly accepted the ofier made to hrm over the same plot was untenable The rssue for determrnatron was whether at the trme the offer over glol 12 was made to the appellant. the plot had already been offered to the 2- respondent The tnal ludge found rn the posrhve Thrs was supported by evrdence whrch showed that appellant presented hrs applicatron for plot 12 on 30595 when he knew that the same had already been allocated to the 2 respondent When the appellant was purportedly allocated plot 12 on Z6l% there was already exrstrng a suFlease dated 16/5/95 over the plot rn favour of the 2m respondent Leamed counsel submrtted that the tnal ludge nghtly app[ed the doctnne of -first rn trme first rn nght- Therefore the suFlease obtarned by the appellant was rn those crrcumstances rnvalid

On the va[drty of the 2rc respondent s acceptance of the offer for plot 12 Mr Natsomr submltted that the offer was made to the 2' respondent on 1G495 Then there arose a drspute over the plot between appellant and the 2E respondent lt was only when the'l't respondent made rts stand clear about the drspute that the 2- respondent accepted the offer on 4n195 Appellant not berng pnvy to the contract between the 1'' ard2n

respondents could not challenge the contract on fts terns lt was up to the 1"' respondent to decide whether or not the offer was still on and could be accepted by the 2\* resPondent

On the tnal ludge s findrng that the appellant selectively and deliberately applied for plot 10 to exclusron of plot 12. Mr Natsoms submttted that the tnal ludge lyas nght Hrs findtng was supported by the evtdence of PW1 Leamed counsel further supported the tnal ludge's finding that the appellant could not benefrt from the 1s'respondent's policy of gtvrng pnonty to s,ttrng tenants Appellant had rent arrears The evtdence of PW1 supports that fact Leamed counsel denred that there was any changed condltion regarding allocatton of the plots from those contained rn Exh Dl

Mr Natsomr further supported the findrng of the trral ludge that the respondents were not gurtty of fraud Frrstly, the appellant who was ^a srttrng tenant on plots 10 and 12 drd not rn hrs first applcation tndicate hts rnterest rn plot 12 He could not even be grven pnonty constderation as ^a srtrng tenant because he had been tn rent arrears The evtdence of PW1 supports thrs fact He pard hrs rents for Apnl to June on 15/6/95 The appellant therefore he argued. farled to prove fraud on the part of the first respondenl He explarned that Ex D1 whrch adverttsed all the plots at Lwakhakha must be read together wrth Exh P18 The latter exhtbft was merely a remrnder of the adverttsement (Exh D1) lt dtd not oust the condrtrons for allocatron set out rn Ex Dl He concluded that the tnal ;udge was therefore nght to find that there was no evtdence of fraud

I The rssues rarsed by the above arguments are centred on whether the leamed tnal ludge drd not properly evaluate the evrdence before htm and as a resutt wrongly found that no fraud was proved by the appellant Thts court as the first appellate court rs enlorned under ts rule 29 (1)(a) to re' apprarse the evtdence on record and to draw rts own inferences of fad grvrng allowance for the fact that rt had no chance to observe the wltnesses as they testrfy See also Selle and Anor vs Associated totor Boat Co. Ltd. (1968) EA 123.

I have reviewed the evtdence on record On the validrty of the suFlease obtarned by the appellant over glol 12 Exh D1 set out the condtttons upon whrch the plots at Lwakhakha had to be allocated lt reads -

> "lnEresbd pensons should apply to the Secretary lanager to reach him on or before 194-95. Each applicaril should enclce a non-refundable fee of shs.2O,fiXl/= and indicate the plot number applied for. The plots advertised are 1 to 100. Plots 29, 31 and 33 are reserved for a Taxi Part. Tenders are invited for them too as a Tari Park. Sitting tenants will have a priority unless if they are in rent atreans and they should indicate their interest when applying i.e. the plot number. A sketch map is attached for guidance."

The evrdence of PW1 and DW'l show that the appellant appled for plot ¹² on 30/5/95 when he knew that rt had already been allocated to the 2 respondent. The doctnne of -first tn ttme first rn rrght- rnvoked by the tnal ludge was thus supported by the facts as evrdenced above The argument that when the appellant obtarned the sub-lease the 2- respondent had not

validly accepted the offer made to hrm for the plot ls not tenable There was tnterventng ctrcumstances There had been a dispute between appellant and the 2- respondent over that plot. lt was only when the 1'' respondent clanfied rts posrtton aS to who the plot had been allocated to that the 2- respondent moved to accept the offer When he did so on 4nE5 the 1', respondent had kept the offer strll open The doctnne of -first rn time. first rn nght- was therefore conectly rnvoked by the tnal ludge When appellant was offered a suFlease over the plot. there had already been such an offer to the 2rc respondent for the plot

The appellant argued that the 1" respondents agent knew or ought to have known that plot 10 rncluded plot 12 snce they consrdered the appellant as an unsuccessful appltcant for plot 12 on 6/5/95 even though he had not expressly appled for that plot In my vtew thls argument does not hold because the condrttons contatned rn Exh D'l are very clear Each applicant. Srttlng tenants tnclustve had to rndrcate rn hrs/her applicatlon the plot number he apphed for The appellant admrtted that he mtstakenly apphed for plot 10 thtnktng that rt rncluded plot 12 Thrs was unfortunate The condrtrons requtred htm to name the number of the plot or plots he was rnterested rn He named only plot 10 He could not have been consrdered for plot 12 The only reasonable tnference that could have been drawn from hrs omtsston was that he had selected only plot 10 to the excluslon of plot 12

It was argued that the 1" respondent was fraudulent to allocate plot 12 to the 2- respondent contrary to ts own policy of grvrng silttng tenanE pnonty consrderatron I agree wrth the trral ludge that the appellant could not

1'l


the tnal ludge drd not apprecrate Exh P18 whrch rendered berng rn rent arrears no longer matenal has no ment

Exh P18 reads -

# "To all sitting tenants

rcuLtd.

# Allocation of Lwakhakha Plots

This is to bring to your notice that on 40' April 1995, the Union advertised all plots at Lwakhakha land including yours nrhere you arc a sitting tenant

Recendy, the Union Committee sat to consider the applications and made allocations accordingly. lt has been noted that you are a sitting tenant of plot but you have not bottered to apply for the same. The CommitEe has therefore given you one week up to 15/5/1995. So after this date if there is no response from you, the commit'tee will have no alternative but to allocate your plot to anotfier applicant and you will be evic-ted accordingly.

sgn

K. S. Namugoya For: Secretary lanager m c u Ltd."

The advertrsement refened to tn paragraph 1 above was that contalned ln Exh Dl Exh P18 must therefore be read together wrth Exh Dl Readtng the two together shows clearly that Exh P18 drd not atter any condrhons of allocatron set out rn Exh Dl lt merely remrnded srttrng tenants who wtshed to act to do so wrthtn one week The appellant argued that he had not recerved thrs remrnder The evrdence of PWl shovns that the appellant saw Exh Dl wrth the layout map of the plots attached to rt well before he lodged hrs appficatron for plot 10 l thrnk that havlng seen Exh Dl wtth the attached layout map of the plot the appellant had not been disadvantaged rn any way by not recervrng Exh P18

The appellant cntrcrsed the tnal ludge for findrng that the respondents were not gurlty of fraud I thrnk thrs cnttctsm lacked ment The appellant who was a srttrng tenant of plots 10 and 12 drd not rn hts first applicatton tndtcate hrs rnterest rn plot 12 He drd not comply wrth the condrttons set out ln Exh D1 PWl admrtted that the appellant mrstakenly applted only for plot 10 thrnkrng that rt rncluded plot 12 He could not blame anybody for that mrstake but hrmsetf There rs no evtdence to prove ftaud on the part of the respondents The tnal ludge was therefore nght to find no fraud under both heads

Mr Dagrra submrtted that Exh P18 had changed the condtttons set out rn Exh Dl for allocatron of plots at Lwakhakha I do not agree I have set out earher rn thrs ludgment both Exh Dl and Exh P18 for ease of reference Exh P18 merely remrnded srtttng tenants who had not but wshed to apply for the plots they occupred to do so wtthtn one week lt never attered any of the condrtrons set out rn Exh Dl

r2

I find no merit in these grounds and I would dismiss them.

This now leads me to ground 3. The complaint here is that the learned trial judge occasioned a substantial miscarriage of justice when he dismissed the appellant's claim.

I have shown when discussing grounds 1 and 2 above that the appellant There was no evidence that the sub-lease failed to prove his case. obtained by the appellant was valid nor that the respondents were guilty of The trial judge was thus justified to dismiss the claim. No fraud. miscarriage of justice was occasioned by the dismissal. The ground showed no merit and I would dismiss it.

In the result I would dismiss the appeal with costs in favour of the respondents.

Dated at Kampala this

27^th day of November 2003

M. Okello **JUSTICE OF APPEAL**

$14$

## THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA

# **AT KAMPALA**

## CORAM:

$\mathsf{S}$

HON. JUSTICE G. M. OKELLO,JA HON. JUSTICE S. G. ENGWAU,JA HON. LADY JUSTICE C. K. BYAMUGISHA,JA

### CIVIL APPEAL NO.14 OF 2001

#### **BETWEEN**

#### ENUSU MUDUWUNI::::::::::::::::::::::::::::::::::: $10$

(Suing by Attorney Mr Nakwekwe)

### **AND**

#### 1. MASABA CO-OPERATIVE UNION LTD $15$ 2. LWAKAKA MEAT SUPPLIERS::::::::::::::::::::::::::::::::::::

(Appeal from the decision of the High Court of Uganda sitting at Mbale(KANIA J)dated 12^th October 2000 in H. C. C. S No. 28/96)

#### 20

## **JUDGMENT OF BYAMUGISHA**

I had the benefit of reading in draft form the judgment of Okello JA. I agree with the conclusions he has reached that the appeal ought to be dismissed in the terms he proposed.

Dated at Kampala this 2.7. day of. N. O. N.1.2003.

$\mathbf{1}$


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

CORAM: HON. JUSTICE G. M. OKELLO. JA. HON. JUSTICE S. G. ENGWAU. JA. HON. JUSTICE C. K. BYAMUGISHA, JA.

# CIVIL APPEAL NO. 14 OF 2001.

### **BETWEEN**

**ENUSU MUDUWUNI** (suing by his Attorney $\equiv \equiv \equiv \equiv \equiv \equiv \equiv \equiv \equiv \equiv \equiv \equiv \equiv \equiv \equiv \equiv \equiv \equiv \equiv \$ Ali Nakwekwe)

## AND

- 1. MASABA CO-OPERATIVE UNION LTD - 2. LWAKHAKHA MEAT SUPPLIERS===========RESPONDENTS

(Appeal arising from the judgment and Orders of the High Court at Mbale (Kania, J) dated 12^th October 2000 in HCCS No 28 of 1996

# **JUDGMENT OF HON. JUSTICE S. G. ENGWAU, JA**

I had the benefit of reading in draft the judgment of Okello. JA and I entirely agree with his reasons and orders that there is no merit in this appeal which should be dismissed with costs to the respondents.

In the premises. I have nothing more useful to add.

7th day of Novemb Dated at Kampala this --

Jugian

Hon. Justice S. G Engwau Justice of Appeal.