[1994] UGSC 33

**HGANDA**

AT MANCO

(CCRAM: MANYIUDO, DOJ., CDCKI, JSC., TSEKCCKO, JSC.,)

# APPSAL NC. 5 OF 1994

# BETWEEN

**JCHN NAGENDA** <pre>11:11:1:1:1:1:::::::::::::::::::::::: **APPELLANT**

# $A$ $N$ $D$

1. THE EDIFOR OF THE MONITOR 1111111111 **RESPONDENTS** $\overline{2}$ . THE MONICOR PUBLICATION LTD.

> (Appeal from decree of the High Court of<br>Ug nda at Kampala (Mr. Justice J. P. Derin dated 25th Ceteber, 1993.

### I N

#### SUIT NC. 696 CF 1992 CIVIL

# JUDGMENT OF TSENCOMO, J. S. C.

This appeal arises from a libel action in which the appellant sued the respondents for alleged defamation because $cf_A$ article published by the respondents.

The background to this appeal is rather involved. **But** to understand it better, I think it is desirable to set out that background. It is besically the summary of the evidence given by Edward Kagumba who testified for the respondents as DW4 and as found by the trial judge. DW4 owned land measuring some 293 acres. During 1976 he leased the land to the appellant in the name of appellant's company called Namutamba Tea Estate And Dairy Farm Itd (herein fter referred to as N. T. E. & D. Farm Ltd.) The agreed rent was payable quarter yearly. The Appellant (or N. T. D. & D. Farm Ltd.) defaulted in payment of rent between 1977 and 1931. Censequently DW4 repossessed the land and managed it under his own company known as the Atlantic Industries Ltd (hereinefter to be referred to as A. I. Ltd). However, in 1982 the land was again leased to the appellant and/ or N. T. E. % D. Form Ltd under fresh conditions. After $3$ years

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(presumably by 1986) beere was again default in rent payment. During 1986/38 there were unsuccessful hegotiations for N. T. E. & D. Farm Lod to purchase the land. Because of rent payment default, A. I. Ibd through Lawyers threatened to evict N. T. S. & D. Jours Ltd. Meantime during September, 1986. or later, D#4 and him workers entered the land and probably picked some to. The appellant appears to have been incensed by that. So the appollant and his brother Stephen Nagenda in the Company of 15 con armed with pages and sticks proceeded to the land in compan of DU4. DU4 was not there. But the group met workers of DE4 whem they tertured. After the terture and apparently while retreating the appellent and his group met D64 where upon the appoilment informed D74 that:

# "20 they had found me (DW4) they weald have crushed my head."

Apparently 004 Lived under great fear of the appellant. The dispute was referred to NC1 of the area in Nevember, 1986. The RCs made some decisions. DW4 wasn't happy with decissions of the RCs. During 1988, DN4 transferred the land from A. I. Ltd tp J. K. Idvectment 25d (hereinafter to be referred to as J. K. I. Ltd.) with DNA as its Manager. on 19/8/1988, DW4 engaged one Kayengo and Lutale Bosso (DW3) to survey the land on behalf of J. M. T. Ibk. That is how DW3 because a ong in the wheel of this definition case. DE3 commented the survey on 8/10/1988. It appears the appollant learnt of it and became incensed by the ourvey work. On 16/10/86 the appellant, accompanied by his armed bedy guard, his brother, Stephen Nagenda, drove to the home of Lula (DW1) who was requested to lead and he did load the group to the home of DW3. They all walked to the home of 353 when they found absent though his wife (D#2) was present. The appellant asked D#2 to tell D#3 to check on DW1.

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Th© appellant on reaching Dhl's hrme instructed DW1 to

"tell Ilr\* Lutalo Bossa that if he wonts to 3toy olive and not to die ho rkould stop trespassing in wy ebenbu⁵¹

RCs and Police« Subsequently a suit was filed About 27/12/89 in the High Court by J\*K. I. Ltd against N. T. E. & D. Farm Ltd in respect of the disputed land. Cbviously both DW4 and the appellant arc key playoro in that High Court suit. It appears that during ¹⁹' th© respondents learnt about that suit and the appellant'^ visit to the homes of DW1 and DWJ on 16/10/88. The respondents vroto an article about the dispute and th© visit and published it in the Monitor Newspaper issue for to 16th October, 1992\* By that time the appellant vuc a ember of the Human Sights Commission\* Judging from the contents of th© article, th© Monitor must have written the article mrtly because of th© appellant membership of the Cocmiccicn\* the week 8th Cctobc /, or similar word;j> D-.-1 dully delivered the message when DW3 called^pon hearing those word©, D4;3 got scared and stopped th© survey\* But he reported the threat to Di4, and to the

Consequently the appellant sued the respondent in the High Court clalnlny d because of the article published by the respond©:;ta io. the Monitor (in its is^ue of October 8th to 16th, 2h© appellant alleged that the article had defamed hiu\* Tho appellant particularly regarded the 1 last portion of tbo article which is pleaded in paragraph 3 of the plaint to bo defamatory of him\*

As pleaded, that part of the passage states! "COMMISSION^ ::o

The sarvcyor« I\* ?\* Brssa Lutalo, later claimed that Mr\* John Nagenda, in the ceopany of his brother, Stephen, and a neighbour, Ur\* Yokooofati Lule, and a man ©he was armed with a gin went to hlo (lutalo1s) home\*

\*\*./4.

- 3 \*

$\mathbf{1}$

According to Lutale the armed man was dressed in plain clothes and Mr. Nagende uppered threats before Lutalo's wife to the effect that if he (Lubnic) wanted his life, then he had to stop surveying the land on which the tea estate is located." In paragraph 4 of the plaint, it was alleged that those words were defendery of the plaintiff in their natural meaning.

In reply the respondents in paragraph 4 of their joint. written statement of defence averred that:-

> "The defendants admit having published and printed the alleged words but deny that the printing and publication thereof were false or malicicas or capable of defaming the plaintiff or having who alleged meanings attached to them (by puregraph 5 of the plaint), or of injuring<br>the plaintiff as alleged and the plaintiff will be put to studick proof of such allegations."

Four issued framed for determination by the High Court were:-

- Whether matters presented and published were false and 1. malicious. - Whether the words complained of are capable of bearing $\mathbf{z}_{\bullet}$ the meaning abbached to them by plaintiff.

Whether they were defamatory of plaintiff. $3.$

4. What reliefs, if any.

The appellant gave evidence on his behalf and called Professor Apolo National (FS1) as his other witness. The Professor's evidence relates to the appellant's reputation and is of no value in regard to the events on the material day.

The respondence called Lule (DM1) Justine Nabanya, wife of Lutalo Bossa (CMC), Lutalo Brasa (DW3), Edward Kagumba (DW4) and Wafula Ogutu, (the Editor in Chief of the Monitor) (DW5)

$...15.$

In his testimony and as fo-:nd by the trial judge the appellant admitted visiting the home of Lule and that of Lutalo Bossa on the material day. Ee admitted being accompanied by his brother Stephen and his armed body guard in plain ebbthos. lie admitted speaking to Mrs Lutalo Bossa (DW2) "about illos^l entry onto his land" by DW3\* The only point of substance where the evidence of the appellant differs from that of DV/1 is that the appellant in his testimony denied ever uttering the alleged threat. the evidence of DW1 and DIV2 is supported by the appellant1s evidence as to the visit, the number of pepple and presente of the armed guard. ^D'71 was oraphaticein his evidence that the appellant asked him (D!.71) to deliver the threat to DV/3. DW1 asserted that he in fact delivered the threat to BW3. After receiving information about the threat, DW3 reported the threat to the local RCs and lattoi\* through DV.'4 to the Police. The evidence shows that DV/3 stopped the survey of the disputed land because of the threats Otherwise,

At the conclusion of evidence, Mr. Nagfwala, who appeared for the respondents addressed the learned judge. Among the issues raised by hr. Nag'wala in his submissions was that:

> "since the words printed and published we1'0 true in fact and in substance they could not be defamatory of the plaintiff."

Thus the defence counsel raised the issue of the defence of justification in the High Court.

Cn the other hand Dr. Byamur-isha submitted that justification had not been specifically pleaded nor made an issue for determination by the High Court. That is essentially true. lie cited the case of Pragar Vs Times \* Newspapers LtdV(1g83) 1 All E. R. 300 and Associated Leisure Ltd and others Vs Associated Newspaper (1970)2 OB. 450 in support. Learned Counsel had in effect urged the trial judge to ignore the defence evidence on the plea of justifies tion on the grounds shat it had neither been pleaded nor made one of the issues. The consequence ©f the tfubmissien *../6.*

on the matter by councel for both sides is that they put the issue of justification to the trial judge. The learned judge chose to confider the issue of the defence of justification. He considered the law, evaluated evidence found that on the facts of this case the defence of justification had been established and he therefore dismissed the suit. Hence this appeal. The appollant formulated six grounds of appeal but abandoned the simul ground during the hearing of the appeal.

Dr. Byamugicha loarned Ceunsel for the appellant critised certain conclusions of the learned trial judge in his judgment. Learned Counsel contended that the trialjudge did not give due weight to counsel's submissions in the Hing Court.

As a first appollant Court, this Court has power to respraise the evidence and draw its con inferences of fact bearing in mind the fact that we have not had the benefit which the trial judge had of seeing and of hearing the witnesses and of nothing their demeancur as they gave their testimony.

I shall first consider grounds one and two together because in my view they cover proty much the same point.

These grounds read as follows:

$n1$ The loarned in the merid in law and in flot in chaerving in respect of the letter depending for an apology that:-

> "This shows that whether the defendants offened an apology or not they were going to face Court action. The stand taken by the plointiff appears to me rather stange. I thought the letter is an epportunity given to the defendants before the writ is issued to sithdraw the effending article and apologic. In my view the purpose of such a<br>letter bill help to show that the plaintiff's (sic) real object is to vindicate (sic) his character and net merely to make money out of the attack."

The learned judge erred in law and in fact when he $\mathbf{2}$ stated in respect of the apology that:-

> "Thic was considered by the plaintiff not an spole y. True to learned counsel's incipuotions, the instant writ was $filod.$

> > $-.17.$

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I have studied the judgment of the learned judge, the evidence and Enh. [9] which is the letter of appellant's counsel whereby he demanded applogy from the respendents.

The last paragraph of Exh 1.3 states:-

$\mathcal{L} = \mathcal{L}$

"Your apology should be president and should be published within seven (7) days free the date here of after which cur instructions are to file suit against you."

In view of this passage I den't accept Br. Byamugisha's criticism of the trial judge to the effect that the judge viewed the appellant only as person looking for money.

In my considered view the learned judge did no more than make sh observation about the instructions which the appellant Ltd had given his counsel. I find nothing out of the ordinary in the judge's observations and I find no fault with these observations in the light of the contents of Exh. P.3 and particularly the last paragraph reproduced immediately above herein. Moreover the judge quoted what the appellant stated in evidence. Towards the end of cross-on minution of the appellant, he is recorded to have answered that:

> "So whether apology was tendered or not Z was to sue."

Consequently I find that there is no merit in both grounds 1 and 2 and the case must fail. Ground 3 and 4 will on are more substantial state that:-

> "J The Bonneed judge erred in law and infact in holding that defendant pleaded justification<br>as a defende, and further that the principle<br>in Progna Vs Times Newspapers Ltd is "not applicable to the instant case, where the defendants, by paragraph 4 of the defence, have not gut a meaning on the defamatory werds ilflorent from the meaning pleaded by the pluntiff which they seek to justify. but movely booking to justify the actual words complianed of.

4. The Reamand trial judge erred in law and in fact in helding that the defendants can still poly on a plea of justification even thrugh they affered an apology when no judification was pleaded or made an issue."

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On ground throe. Dr. Byagugisha reiterated his submissions at the trial and submitted that the defendant never pleaded justification at all or specifically ner was justification $c$ $\omega$ made an issue. This the defendant could not indeed plead justification in view of the correction made subsequently. According to the Remands counsel the correction meant that no threat had been made by the appullant. Learned counsel centended as observed carlier that the trial judge did not in his judgment two adequate considerations to (Dr. Byamugisha's) submission in the Elinh Court. I am satisfied that the learned judge did consider the submissions before he dismissed the sult. In the opinion of Dr. Byanugisha, the written statement of defence should have averted that the threatening words, alleged to have been uttered by the appellant, were uttered not to Lutalo's wife but to Lule (presumably) because the defence witnesses stated so eventually in their testimony). I accept this argument as regards format of a written statement of defence but as I shall whow later, this did not prejudice the appellant with regards to the nomits of his case.

Counsel citod Pincon Vo Linyds and National Provincial Foreign Bank Ita (1994) 2 All E. R. 636 at 643; Pragar Ve Times Newspapers Ltd (1983). All E. R. 304 and Merrel Vs International Thempson Publiphing Did (1989) 3 All E. R. 733 as well as order<br>In cupper of two organists. 0.6 Rules 2.5.7, and 9 of CFRules The rules refer to the need for parties to give particulars and to plead facts specifically so as to avoid supprise at the trial and to avoid evasive denial in pleadings. I think that the preper and most suitable forum to raise objection by a party because of failure by the opposite pafty to comply with the rules of procedure is the trial Court. As Court of appeal we can entertain such complaints if noncompliance thereof has econsioned afailure or a miscarfiage of Justice, which is not the case here, in my view.

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$... / 9.$ Cn ground 4 Dr. Byamugisha submitted, and here I agree with him, that an apology doesn't cease to be an apology merely because a plaintiff doesn't accept the application. I also accepted counsel's submission that an apology in effect destroys the defence of justification. Such apology would normally be pleaded in mitigation of damages. I think it is is the law, and it has to be understood, that no apology can possibly be offered where the defence of justification is w well founded. This is because justification is the technical word for truth. So if the words complained of tell the truth. no apology can be offered or there would be no need for the apology.

On both grounds 3 and 4 Mr. Nang'wala counsel for the same same. respondents contended that justification was pleaded in the defence. He referred to Vol. 24 of Halsbury's Law of England. 3rd Edition, page 45 (paragraph 75) and submitted that in the pleadings it is not necessary to aver that publication was justified. In his view the use of the expression.

## "Words used were net true or-Were folce"

would be a plea of justification. Counsel argued that sinne the plaint alleged that the published words were false, the denial in paragraph 4 of the written statement of defence that the words were false was enough sinne it put the plaintiff on notice that the published words are true or not false. Mr. Nag'wala submitted further that Pragar's case is distingushable. He referred us to Kaluwa Vs Uganda Transport Company Ltd (1973) NCB 318 and Dhanji Ranji Vs Ramdhai & Co. (1970) E. A. 515 in support of the view that even if a defence of justification is not pleaded ror made an issue, a trial judge can consider it. This is a view which I accept subject to certain qualifications. In view of the implication of not mitt serving Dhanji Ranji's case I was surprised that no attempt was made by leanned councel for appellant to give his viewSon that a case. I shall revert to this point later in this judgment.

Cn apology, Mr. Mag'wala made an frreneous submission, in my view, that a defendant who offers apology can rely on

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justification. Apology in reality means that the defendant accepts the defaustion complained of and regrets publication of the words complicated of. The defendant would normally withdraw these were because he knows they are false. In that respect a defendant con revely affer an applegy and yet at the same time rely on jubification because the two are mutually exclusive in effoot, at any rate in as far as as the law of defamation is concorned in this country; See Gatley on Libel and Slander, 5th Saidlen, page 420, paragraph 751, et, seq.

Counsel further submitted that the apology made by the defendants was actually a correction of an error to the effect that the words camplained of were uttered net to Lutalo's wife but to Lule. I which that this is one view of the so called apology. The centents of the "correction" publishion are certainly equivocal and open to a number of possible interpretations. But is my considered opinion the correction article is no lenger important in view of the evidence of DW1, DW2 and DW3 whose cyidence the trial judge believed. The evidence that the appellant uttored the alleged threat was given further weight by the cyldence of Edward Kagumba (334) on whose behalf tobemade. the survey was made or attempted. If caution had been exercised by both counsel in the Court below, much of the evidence of DW4 might have been exclude/since the evidence of DW4, which was hardly contributed, largely proved that the appellant had uttered similar threats to DN4 and that appellant had roughed up workers of 200 because of the same land in respect of which Lutalo Bessa (DWW) was Chreatened. Thus in the event DW4's evidence established that the appellant had a propensity to threaten people interfering with the disputed land. This gave more weight to the onse for the respondents.

Dr. Byanumich had critised the respendents for printing and publishing the problem in 1992 when the alleged threat was allegedly uttered for back in 1988. In view of the existence of the High Court Fult between J. K. L. and N. T. E. & D. Farm Ltd

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the reach of newspaper editors. The was a crusader He was a member of the Human Rights Commisoicn vliich has been investigating past violations of Human Righto. That attracted scrutiny of his commission^ or omissions by those whose duty it is to do the scrutiny. The respondents haw that duty. have been kept cut of ^ppellant hud testified to the effect that he for upholding Hv.a?n lights. wherein the cppell-'^t, a public figure was a participant, 4jiere is no wry tbo nontien of the 1988 threat could possibly

of are true in eubot-^nco -?nd in fact,⁷ end, where it is necessary. seme particulars thereof are provided. Equally there can be Proceedings. There is no doubt that the conventional form of pleading f justification h- ^o bo -n to the effect that, the words complained no doubt that the truth of any alleged defamatory words generally effords a complete defence to an action baseJoh libel in Civil

As I understand thia case the substantial question before the trial judge end before us is whether or not the words attributed to the npjollant by the respondents were in fact uttered In my view the and if so whether the appellant uttered them. question of whether thooe^were uttered to Mrs. Lutalo (DW2) er to Mr. Lulo ( ' woe of least importance and I think that **r-fe** was in reality tho finding learned trial judge.

Learned Counnol for the appellant critised the trial judge because of certain p □□gc^in his judgment especially where *m* those passage^the Judge referred to the "sting" of the libel I think that hherc vao sufficient evidence to support the conclusions of the judge on ^t'.o point that the appellant uttered the threat which was in effect what the respondents published. as being the alleged threat attributed to the appellant.

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appellant are net helpful to the appellant's case and are distinguishable\* The authorities cited to us by counsel for the

'Phus the c co of Tciite/l Africa Press. is relevant to the standard of proc; of the defence of justification where it had in fact been pleaded in the written statement of defence and made an issue\* The defendant in United.. Africa Press case failed to prove the defence of justification and so was held liable.

The other throe caGeo^f namely linsen's Pragar\*s and that of \* Morrell were decided on interlocutory proceedings and are distinguish able\* Tao throe decisions are concerned with the the framing of tho defence of justification. taken during the preliminary stages of a libel suit. Trisell\*g case is relevant on the award of damages\* These three casco more r lov3nj^t I think in case^where objection to tho format of the written statement of defence is formulation, i.c.,

justification io in effect asking a Court of justice to shut its eyes to truth\* A Ceurt of justice cannot in my opinion give a judgment contrarywto the evidence that disproves the claim. That would amount to perverting justice which no Court of justice could do. In my consido^od view the submission of Dr. Byamugisha that the learned trici. juu^o should have ignore^ the evidence ©n

The law of libel io concerned with publication of disparaging or malicious fr-lcehooda about a complainant\* It is a publication contempt or rcdlculo\* Libel iu really not concerned with indvortent emission in the reject of a factual statement\* This is clearly illustrated by tho House of Lords\* decision in Cundorland Vs ftopes (1925) A\* . .7 at page ?% without justification or lawful excuse, which is calculated to injure the reputation of mother person by exposing him to hatred^t

The learned total judge had referred to that case in his judgment. The case itself was contested on the defence of justification and fair comment. These defence were actually pleaded and made inputs of the trial. The facts of the case are themselves not necessary for consideration of this appeal. But there are paddinged from the opinion of Lord Shaw of Dunfermline which illustrate, as the learned judge in the Court below held, that jubililation, i.e., proof of the truth of the allegation completened of, affects the substance of the matter and not mere minor details. Lord Shaw stated (see bottom of page 78 at seq.) bind:-

> Wit remains to be considered what are the conditions and breadfu of a plea of : justification on the truth. The plea must not be considered in a meticulous sense. It is that the words employed were true in substance and in fact. I view with great satisfaction the charge of the Lord. Chief Jubbles when he made this point perfectly clear to the jury, that all that was required to offirm that plea was that the jury should be satisfied that the sting of the libel or, if there were more than onc, the stings of the libel should be made out. If HILH I MAY ADD THAT THERE WAY<br>BE IT CAN'E HERE AND THERE IN HAT HAS BEEN SAID WE WOULD MAKE NO SUBSTANTIAL<br>DEFINITION OF THE QUALITY OF THE ALLEGED<br>LIBER OF THE QUALITY OF THE ALLEGED<br>FOR IF. If I unite that the defendant on March 6 took a saddle ir a my stable and sold it the next day and pecketed the money all without notice to me, and that in my opinion he stole the anddle and if the facts truly are found to be that the defendant did not take the column from the stable but from the hirness, and that he did not sell it the next day but a w ok afterwards, but nvertheless he did, without my knowledge of consent, sell<br>my saddle so taken and packeted the proceeds then the whole sting of the libel may be justifiely affired by a jury not withstanding these opposed in detail." (capited lotters are for emphasis) No reponded the print especially at page 81.

I myself find no material difference between the present case and the hypothetical illustration given by Lord Shaw in the passage I have just quetod. In East Africa, I find a crisp reference to the same effect about justification in the case of Heare Vs Jessop (1965)

$E_{\bullet}A_{\bullet}$ 218 at page 227 where it is stated:-

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"On the plea of justification it is<br>not necessary to prove that the statement is literary true; it is sufficient if, as in this case, it is true in substance and there is no attempt at gross exaggeration."

per Crabbe, J. A.

The case of J. Leavey & Co. Ltd Vs George H. Hurst & Co. Ltd (1945)2 All E. R. 581 quoted approvingly by E. A. Court of Appeal in British India Insurance Co. Vs Parmar & Co. (1965) E. A. 172. (itself a case on amendment of defence) also supports the view that even if a defendant emits to plead a defence, he can adduce evidence during trial and can rely on such a defence: (see the judgment of Clement De Lestang, Ag, P, (at page 176). It is true that the defence of justification was not specifically pleaded by the defendant in the conventional style. But the statement of the trial judge that the defendants pleaded justification in paragraph 4 of their written statement of defence appears to be supported by Supreme Court Practice (1988), Volume 1 at page 293 where the leanned editors in paragraph 18/12/18 state, inter alia,

> "that in any action of libel of Slander it is open to the defendant to plead that the words are true."

The defendant would normally be conched in the following words:-

"The words complained of are true in substance and in fact"

or words to that offect. Paragraph 4 of the written statement of defence in my view was perilously close to being evasive but since no objection to it was raised in the Court below. I will not make any more comment, it.

Beside, the judgment of the learned judge can be supported with regard to the defence of justification on ground that that the plea and the issue amerged during the hearing of the case. The appellant was cross-examined in the manner leaving no doubt that the plea of justification was an issue. testimenies of DW1, DWB and to some extent that of DW4 amply confirm this. Eath counsel for the plaintiff and for the defendant addressed the judge on it. Thus, the issue was. fairly left to the learned $.1/15.$

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judge for confederation nd decision. counsel for appellant oZieuld have raised objection to the pleadings and thereby oblige the defendants counsel to amend the written statcaant of defence sc as to include the plea of justification, if defendants Intended to rely on that defence\* Alternatively the defence counsel cruld have been stopped from adducing evldo-co on it\* The plaintiff\*s counsel did not do that\* Sather th^n urging the trial judge r^t to consider the defence of justification.

on io concerned\* In any case in this case I am satisfied th. t no prejudice was occasioned to the plaintiff when the judge conoidarod the evidence on the defence of justification boc uoo that evidence actually establiehed tne truth\* In view of the defence evidence it would have been wholly wrongtfor ^Ltrial Jud.go to ignore such evidence on record in so 0" far as justifies

True the defence did not raise specifically the issue of justification justification framed for determination\* My understanding of paragraph 4 of the written statement of defence is that the deforce asserts that the published words are not false and t ir.t there wr s no malice. Thu©, the defendants by their pleading nhdwad t?,cy would prove the claim to be unfounded. Ac the loomed judgd stated, the defendants made a factual reportin of what happened on the material day| the defendants did not express their own opinion nor did they draw their own inferences\* Since the learned Judge heard and—believe ¹ the evidence of DW2 and D#J and

^I vv preference to that of the plaintiff and the judge gave reasons for the preference ;d£c\ reasons are based on evidence available on record, I thisd: iv.t on the facts of thia case no prejudice ollant because of the misreporting that Mrs Lutalo heard th- words\* In any case I should have expected learned counsel for plaintiff to object to evidence adduce by % defence in support of justification so that the defendants was occasioned to t'.io ^a

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\* '1? \*\*

case. Vs Mubia (1970) merely to ignore inportanteand relevant evidence which tended to establish the truth# 0.13 Rule 5(1) justification as an issue before closing the hearing of the As observed by J. A\*^ in Odd Job E. A. at 479, (\dvocatos have a duty in ensuring that issues are framed^ X? view it was not reasonable to ask the judge

Mr\* Nag'v/ala for the respondents relied on the case of Dhanji Bamji Vo ?anbhajL Cc Co\* (supra) for the view that even if no issue is pleaded or framed for determination, a trial held this view (Law J. A\* at page \$19# and Duffus at page 520) Aa I case yet the trend in decided cases support the submission of Mr\* Nag'wala. in Odd Jobs Vs At page 478 **Law,** J. A\* clearly stated the Jiboral attitude of the East African Court of Appeal in cases of this type\* He stated that\* because no prejudice had been caused to the appellant. have already stated, Dr# Byamugisha did not comment on Ramji's For instance |the same Court took the same view, ^&gt; Ilubin (1970) E»A\* 476\* Court can consider and pronounce on the unpleaded issue if the evidence adduce^raises the issue and the Court is addressed on it. In that case the majority of the members of the Court

> uCn the point that a Court has no jurisdiction to decree on an issue which has not been pleaded, the attitude adopted by thjs Court is not as appears to be that of the Courts in India. In East Africa the position is that a Court may allow evidence to be called, and may base its decision, on an uaploadod issue if it appears from the course folloved at the trial that the unplcaded issue has in fact been left to the Court for decision. In the case now before us, I am impressed by Mr\* Mrlik-Hoor's argument that although Mr. Shurtia objected to evidence beihg led relating to the unpleaded issue, he crocs-examined the other side's witness and led bis own witness on this very issue; and although in his final address he objected to the now issue being considered unlees made the subject of an amendment to the plaint,

> > • #./l7. he nevertheless made subgissions on the unpleaded forme. In these circumstances. although with cose hesitation, I consider that the unploaded issue was left to the judge for contains. I have no doubt the appellant was taken by surprise by the introduction of the unpleaded cause of action at the hearing, but although his advocate probabbed he did in fact. to some exicut, purchalpate in the considera-<br>tion of this now cause of action, both by leading ovidence and addressing the Court with reference to it, and I am not satisfied that the procedural irregularities in the Court below have in fact led to a failure of justice necessitating intervention by this Court. In other words, it has not been shown to by unbinfaction that in the event<br>the decision in the Court below was wrong." The other nombors of the Court agreed.

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I den't find real difference between Odd Job's case and the present case. Infact, as the above passage shows, objection was, unlikehere, reised during the trial in (dd's case about adducing evidence on an unpleaded issue. In fact that Odd's case the plaint had pleaded that no contract had been entered into. But during the trial evidence was adduced to support existence contract between the plaintiff and the defendant and the plaintiff of<br>wen thecase on the basis, the unpleaded contract. The Court of Appeal uphcld the decision of the High Court. No drubt na issueswere apparently framed in Cdd's case, but I den't think that it matters much in so far as this appear is centerned.

The flexible approach referred to approvingly by iss, J. A. was followed by the dame Court in other cases. Thus in S. N. Nkalube Vo Tov. Drudi Kibirige (1972) 2 U. L. R 49 at page 56. Duffus, F., oxpressed bimself as follows:-

> "The main duby of this Crurt, as is indeed the case in all Courts, is to see that justice is done between the parties. This<br>Court will, if possible, not allow an appeal on procedure, defeacts or mistakes if in fact hhere has been ne miscarriage of justice or failure of justice. It must however, be borno in mind that rules of Court are drafted to aid the officient administration of justice and that failure of one party to obseve these rules can result in failure of justice to the other. It all depends on the particular facts and circumbiances of each case."

> > $\mathcal{L} = \mathcal{L} \mathcal{L}$

$...18.$

$\mathbf{H}$

In that case in an facts are relevant, the respondent sued the appollant for libel and Slander. The respendent had been Dean in the Church of Uganda, posted at Bumesuta. He had refused to nove from Bumasuta as requested. The appellant. a lay reader, of the Bunnouta Church wrete a defamatory letter about the respendent copying it to the D. C. Bishep, among other authorities. That lotter was alleged to be defamatory of the respendent. The respendent successfully sued the appellant in the High Court because of the allegation of whichCoraft level/against him by the appellant.

Relevant to this appeal is the allegation of witdraft. The appellant had applies at a meeting alleging that respondent indulged in which graft which the respondent claimed to be Slander. The allegation of witeraft were not set out in the plaint. But evidence of it was lead at the trial. The respondent was awarded She $G_0$ ODO/m as damages for Slander. On Appeal to the East Africa Count of Appeal, Law, J. A., stated at page 55, regarding failure to plead allogations of whichcraft:-

> "The allogations of witcraft were introduced without objects no and formed the principal ground of complaint against the appellant. whether these allegations were made arnot became the main issue, or the main issues, at the uploid and could not have been more<br>of an ionue if it had been plended. The conduct of the trial shows that the parties allewer, and intended, these allegations to become an in uo, although unpleaded. This is, I think, one of these cases where an unpleaded ibune was, from the course followed at the total, left to the judge for decision. The judge was left in no doubt that the words relating to ultoraft were in fact spoken by the appollant, and that they were highly defanatory of the respendent in his capacity<br>as a Manatory of the Church. He showed his disapproval of the appellant's conduct by awardin the substantial sum of Shs 6,000/= as demages for Shonder. I would not interfere with this purt of the judgment in the Court $\texttt{below}_\bullet @ \; \forall \, i$

$-13$

$.../19.$

In Railway Corporation Vs EX Road Service Ltd (197?) E. A. 128 an unpleadcd issue was considered by trial Court (see judgments of Spry Agin\* and the irregular procedure was considered not to be fatal and Law Ag. V. P.)

These cases arc strictly not binding on this Court. But they are of c&oat persuasive value. In point of fact. Nkalubo's case was an appeal from High Court of Uganda and is a decision on defamation and in therefore particularly relevant.

The conclusion I draw from the three decisions of the former Court of appeal for East Africa in Odd Job, Nkalubp and Railway Co?:n?option) is that even if any issue is not the case on the unploaded issue and parties canvass the issue or one of the partied dees convass the issue in the trial Court, then depending on the facts of each case unless the party complaining about the irregular procedure was prejudiced by the irregularity, an Appeal Court will not Even though this irregular procedure should not be allowed in every case nevertheless this is a reasonable and sensible approach on cases whore the party complaining about the irregularity has not suffered any injustice. I do not thihk that the adoption of the practice of the former East Africa Court of Appeal in the three casts would put the rules of procedure in jeorpody so long as the unpleaded issue is material to the merits of the case and the issue is clearly contested during actual trial. In the present appeal I am satisfied that the appellant did not suffer injustice^ because of the omission by the respondents to plead justification ^c or because justification wasn't made aS) issue. I will with specific,illy raised in the pleadings or framed for decision by the trial Court, if evidence is lead during the trial of **b-M** normally interfere with the decision of theAC©urt. respect follow the approach adopted in the three cases.

/20.

I am satisfied that in the present case the appellant was not prejudiced by the course taken by the trial judge. This is because Dr. Symmugisha, as counsel for the plaintiff in the High Court cross-examined Lule (DW1) and Lutalo Bossa (DW3) and even DW4 about the alleged threat. He specifically asked Lule to repeat the words which he (Lule) heard from the appellant. Lule repeated the words (threat), DW3 in answer to Dr. Bycmugicha's question stated that:-

> "I feared to continue with the survey when I received plaintiff's message."

The message was the threat. The appellant himself was crossexamined by defence counsel on his threat. Clearly the issue of the plea of justification as a defence was alive in the High Court. On the evidence available, the question of credibility was important. In my view, the learned judge adequately delt with the matter of credibility of witnesses for both sides and arrived at the correct decision. I find ne valid reason for interfering with the conclusions of the learmed judge.

In the result both grounds three and four must fail.

My opinion is that ground, three and four are the substratum of this appeal. In view of my conclusions on these two grounds, I find it unnecessary to consider grounds five in any details...

I am in any case satisfied that in fact the trial judge evaluated the (plaintiff's) appellant's evidence adequately before rejecting it.

For the reasons I have given I would dismiss this appeal with costs to the respondents.

$.../21.$

....... day of ................................... $\ddot{\phantom{0}}$ $\mathcal{L}_{\mathcal{A}}$ $\overline{a}$ Date at Mengo this ........

JUSTICE CE ZE SUPPEME COURT

$21$

IN THE SUPREME COURT OF USINDA

## AT MENGO

(CONAM: MANYINDO, DCJ, ODOKI, JSC, & TSEKOOKO, JSC)

CIVIL APPEAL HO 5 OF 1994

## BETWEEN

.......... APPSLLANT JOHN NAGENDA.......

### $A$ $N$ $D$

......... RES. ON. ENTS THE EDITOR OF THE MONITOR THE MONITOR PUBLICATION LTD

(Appeal from the judgment and<br>decree of the High Court (Berko J)<br>dated 25th October, 1993

in

Civil Suit NO 696 of 1992)

#### JUDGMENT OF ODCKI, JCC

I have had the benefit of reading in draft the judgment propared by Tsekooko, JSC and I agree with it.

> $6u$ Recumber 1994 Dated at Men.o this.. $\partial B \mathbf{v}$

B. J. ODOKI JUSTICE OF THE SUPREME COURT

# IN THE SUPREME COURT OF UGANDA

### AT MENGO

(CORAM: MANYINDO, DCJ, ODOKI, JSC, & TSEKOOKO, JSC)

CIVIL APPEAL NO 5 OF 1994

## BETWEEN

JOHN NAGENDA........ •••••••••APPELLANT

### $A$ $N$ $D$

••••RESPONDENTS THE EDITOR OF THE MONITOR THE MONITOR PUBLICATION LTD

> (Appeal from the judgment and<br>decree of the High Court (Berko J)<br>dated 25th October, 1993 in

Civil Suit NO 696 of 1992)

JUDGMENT OF ODOKI, JSC

I have had the benefit of reading in draft the judgment prepared by Tsekooko, JSC and I agree with it.

Dated at Mengo this....................................

B. J. ODOKI JUSTICE OF THE SUPREME COURT