[2025] UGCA 230

### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA HELD AT JINJA

(Coram; Luswata, Kihiika, Kazibwe Kawumi, JJA.)

### CIVIL APPEAL NO. 85 OF 2017

#### **BETWEEN**

ONABA GEORGE

APPELLANT

AND

### **RUTH INYALIO**

#### RESPONDENT

#### (An appeal from the judgment of the High Court at Soroti (Batema J) in Civil Suit 15 No.005 of 2016 delivered on 21^st February 2017)

# **JUDGMENT OF MOSES KAZIBWE KAWUMI**

# **Background**

The Appellant filed Civil Suit No.005 of 2016 in the High Court for a 20 Permanent injunction and for an order that she is entitled to administer the estate of her grandfather, Jonathan Onaba Kamodan Inyalio who died intestate in 1988. The Appellant claimed to be the only surviving relative of the deceased but the Respondent and one Shekha Hassan lodged a caveat against her application for Letters of Administration. 25

The Respondent claimed that he and others were beneficiaries in the estate. He contended that he and the Appellant had earlier jointly applied to administer the estate but the Appellant stealthily filed the caveated application. The trial Judge in a Ruling delivered on 21^st/02 2017 declared that the Respondent is the rightful descendant and beneficiary of the estate. The Court ordered the Respondent to process Letters of Administration.

Page 1 of 8

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- ⁵ The Appellant lodged an appeal on two grounds: - 1. The learned trial Judge erred in law and in fact when he made ^a decision liftint the Appellant,s caveat without according parties ^a fair hearing. - 2. The learned trialJudge erred in law and in fact when he made a final order purportedly arising from an Alternative Dispute Resolution when there was nothing ils such, 10

The reliefs sought by the Appellant are for the Order in Civil Suit No.5 of ²⁰¹⁶to be set aside and for the suit to be set down for hearing before another Judge with costs awarded to the Appellant.

# Representation

At the hearing of the Appeal on 26th March 2025, the Appellant was represented by Mr.lvan Bamwidhiwa holding brief for Mr. Mwebesa Raymond. The Respondent and her Advocate were not in court. The scheduling notes filed by Counsel for the parties were adopted as their arguments in the determination of the appeal.

# Duty of the Court

The duty of a first appellate court has been enumerated severally. lt is 1.he re-evaluation of the evidence and applicable law to enable the court arrive at its own conclusions both on the law and the facts. ln the process of executing this mandate, the court is required to take into account the fact that it had no opportunity to observe witnesses during the trial. Where any questions arise based on the demeanour of witnesses, due weight has to be given to the impression made on the trial Judge. See Banco Arabe Espanol v Bank of Uganda [1998J UGCA 42; peters v Sunday post l\_ mited (19581 1 E. A.424. 25 30

⁵ The two grounds of appeal are intertwined since they both relate to the existence ol and/or veracity of the purported Alternative Dispute Resolution intervention from which the decision of the court was derived. The two grounds of appeal were thus jointly handled by the Court.

#### Submissions by Counsel for the Appellant 10

It was submitted that the trialJudge reached the decision to lift the caveat without according the parties in Civil Suit No.005of 2016 a fair hearing which contravened to Articles 28 and 44(c) of the Constitution of Ugan. Ja. It was further submitted that the decision of the court also offended Order

27 rule 4 of the Civil Procedure Rules which spells out the contents of ^a Judgment. 15

Counsel invited the Court to peruse the record which reflects that mediation of the suit had failed on l.7th March 2016 and a report to the zo effect had been furnished to Court as required by Rule 15(1) tf the Judicature (M ed iatio ⁿ)Ru 1es,2013. The decision of this Court in UgaFda Law Society &Another v Attorney General, Constitutional petition No. 2&8 of 2002 was cited for the proposition that the parties were not accorded a fair hearing by the t..ial Judge.

# Submissions by Counsel for the Respondent

Counsel for the Respondent raised an objection contending that the appeal was prematurely filed since it arises from a decision reached after mediation proceedings. lt was argued that appeals from such proceedings 30 are not provided for by the Law. lt was further argued that the appeal portrays bias on the part of the trial Judge. This was based on the proposal that the suit be placed before another Judge. lt was submitted that the options available to the a ppella nt were to apply to the tria I Judge to recuse himself from hearing the case, to make a formal complaint to the Registrar 3s or to apply for judicial review.

Page 3 of 8

⁵ It was submitted that the trial Judge invoked his powers to conduct mediation proceedings under Article 126 of the Constitution and this lasted for two hours before a decision was reached. lt was argued that if the appellant was not satisfied with the outcome, he had the op1 :on to proceed with the hearing of the main suit which option he did not pursue. Counsel invited the Court to dismiss the appeal with costs since it is premature and barred by law. 10

# Analysis and determination

The pertinent question arising from the contentions by the parties is whether the Court conducted any mediation proceedings on the date in question and if so, whether the outcome can be a subject of an aptr\_.eal to this court. The other issue for the court to determine is whether the mediation proceedings amount to a trial or a hearing upon which ^a decision of the Judge could follow. lt is necessary to review the proceedings culminating in the disputed Ruling by the trialJudge. 15 20

On 17th March 2016 there was an attempt to have the dispute mediated at the instance of the Appellant. Counsel for the parties were in attendance. Mr. Oseno Daniel who had been granted a power of Attorney rry the Respondent was present. The issues for consideration were whether the two parties could apply for joint Letters of Administration and the remedies available to the beneficiaries. The parties failed to reach an agreement and the matter was referred to court for further proceedings. A report to the effect was prepared and executed by the Mediator and both Counsel. lt was filed on the Court record on 12th April 2016. 25 30

The suit came up for hearing on 18th May 2016. Counsel for the piaintiff applied for time to file and serve an arnended plaint. The Court Regist.ar granted the application and fixed the case for hearing on 1st September 201.6.

Page 4of8

- ⁵ The case was not heard on 1't September 2016 and on 16th November 2016 on account of the absence of the trial Judge from the station since he was hearing election petitions. The rase was listed for hearing on 21't February 2017. - The record of the Court for the 2l"st February 2017 hearing is reproduced below for ease of reference; 10

PLAINTIFF VERSUS 7. ONABAGEORGE 2. SHEKHAHASSAN DEFENDANTS (ADR for 2 hours) RULING Court: The cdvedts ore misconceived ond unconstitutionol in light of the provisions of gender equolity, Ruth lnyolio is the rightful descendant ond only beneficiary of the estotes of her mother and of her grondporents. The certificate ol No Objection issued by the Administator Generol is occepted. Let her process Letters ol Administrdtion. ludge Order No Order os to costs. tudge 27't /02/2077.', 20 25 35 Page 5 of 8 ,,RUTH INYALIO 15 BEFORE HIS LORDSHIP HON. MR. IUSTICE BATEMA N. D. A 30

- ⁵ The Order resulting from the Ruling was extracted and filed on gth May 2017.f he Order reflects th at on Z]-st/O2/2O17 the plaintiff was represented by Ms. Priscilla Agoe and the Defendant was represented by Mr. phillip Engulu. The two parties were further stated to have been present dunng the proceedings and delivery of the Ruling. - 10

A review of both the handwritten and typed record of the court proceedings for the 21st/02/20!7 does not indicate the presence of Counsel for the parties in court on that date. The record does not also reflect the presence of the parties in court. The record only reflects the conduct of ADR in the Ruling of the court as shown in the bra,:keted statement. (ADR for 2 hours).

It was correctly argued by Counsel for the Respondent that the trialJudge was within his mandate to conduct ADR as provided by Article 126 of the Constitution of Uganda. The positive conclusion of the endeavour would however have resulted into a consent judgment or order which was not the case for the proceedings of 27/O2/2OL7.

As is the practice, a consent judgment reached by the parties is endors ed by them and the Court. A ruling and order of the Court is not a consent judgment by the parties but a decision based on the evidence and the law. ^Aruling must be preceded by a l,earing of all the sides to the dispute before the court makes a pronouncement embodied in it. 25

30 lt is only an agreement of the parties which must be reflected on the court record that constitutes the basis of a consent judgment rather tt,an an Order of the Court. The duty of the Court would then be to recognise that agreement and confirm it as the consent judgment of the parties which was apparently not done by the trial Court.

Page 6 of 8 U ⁵ Given the absence of any record to show that the court conducted ADR which culminated in the Ruling disputed by the appellant, lfind merit in the two grounds of appeal.

Counsel for the Respondent objected to the appeal contending that no appeals arise from rulings arising from Alternative Dispute Resolution decision. The general position of the law, is that appeals are a creature of statute. However, Rule 17 of the Judicature(Mediation) Rules,2013, does not wholly limit appeals against orders granted in mediation by use of the rules. lt provides as follows; 10

# "17. No oppeol lrom orders under these Rules

There sholl be no appeolto ony order granted under these Rules except os port of o generol oppeol ot the conclusion of the civil oction in respect of thot mediotion."

20 The Ruling of the Court in the disputed mediation had the effect of putting to an end the suit filed by the Respondent. The caveat lodged by the appellant was lifted and the llespondent was given the green light to process Letters of Administration to the disputed estate. On account of that per se, the appellant was within his right to appeal against the Order zs by the trial Court.

It therefore follows that the appellant did not have the option for ask;ng the trial Judge to recuse himself or to continue with the hearing of a suit that was no longer in existence. The arguments by Counsel for the Respondent in that respect are Jevoid of merit.

8 Page 7

1S

5 Even then, the appeal lodged in the Court challenges the Ruling as based on proceedings that allegedly never took place which renders any purported outcome a nullity at law and contravened the right to a lair hearing envisaged in Articles 28 and 44(cl of the Constitution.

10 ln the circumstances, the appeal succeeds on the two grounds and I make the following declarations and orders;

- 1. The Ruling of the Court dated 2L/02/2017 is set aside since it was issued in contravention of the appellant,s right to a fair hearing as envisaged in Articles 28 and 44(c) of the Constitution. - 15 2. Soroti High Court Civil Suit No.005 of 2016 is hereby re\_instated and the file sha ll be remitted to the High Court for the matter to be fixed for hearing within 30 days from the date of this judgment. - 3. Since neither party is liable for the apparent error committed by the court, each party shall bear its costs in this appeal.

Signed, dated and delivered at Kampata tfris S...tl.tofl|.:r .!1... zozs.

Moses Kazibwe Kawumi Justice of Appeal

Page 8 of 8

#### THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA HELD AT JINJA

(Coram; Luswata, Kihiika, Kazibwe Kawumi, JJA)

## CIVIL APPEAL NO. 85 OF 2017

#### **BETWEEN**

**ONABA GEORGE..................................** $\cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cd$

## AND

**RUTH INYALIO....................................**

# (An appeal from the judgment of the High Court at Soroti (Batema J) in Civil Suit No.005 of 2016 delivered on 21^st February 2017)

# **JUDGMENT OF HON. LADY JUSTICE EVA K. LUSWATA, JA**

I have had the opportunity of reading the lead Judgment of Hon. Justice Moses Kazibwe Kawumi.

I agree with it and I have nothing more useful to add.

Since Justice Oscar John Kihika also agrees with the judgement of Justice Moses Kazibwe Kawumi, we now allow the appeal and give the following Orders;

# **Final Orders**

- 1. The Ruling of the Court dated $21/02/2017$ is set aside since it was issued in contravention of the Appellant's right to a fair hearing as envisaged in Articles 28 and 44{c} of the Constitution. - 2. Soroti High Court Civil Suit No.005 of 2016 is hereby re-instated and the file shall be remitted to the High Court for the matter to be fixed for hearing within 30 days from the date of this judgment.

3. Since neither party is liable for the apparent error committed by the Court, each party shall bear its costs in this appeal.

o1 trl Dated at Kampala this day of ...2025.

LUSWATA JUSTICE OF APPEAL EVA

## THE REPUBLIC OF UGANDA

$\ddot{\phantom{0}}$

# IN THE COURT OF APPEAL OF UGANDA HELD AT JINJA

# (Coram; Luswata, Kihika, Kazibwe Kawumi, JJA)

# CIVIL APPEAL NO. 85 OF 2017

#### **BETWEEN**

<table>

ONABA GEORGE..................................

## **AND**

**RUTH INYALIO....................................**

# (An appeal from the judgment of the High Court at Soroti (Batema J) in Civil Suit No. 005 of 2016 delivered on 21^st February 2017)

# JUDGMENT OF OSCAR JOHN KIHIKA

I have had the benefit of reading the draft Judgment of my brother Hon. Justice Moses Kazibwe JA. I agree with the finding that the ruling of the Court dated 21^st February 2017 ought to be set aside as it contravened the Appellant's right to a fair hearing.

I am also in agreement that Soroti High Court Civil Suit No. 005 of 2016 ought to be reinstated.

Each party is to bear the costs of this appeal.

Delivered at Kampala this ....................................

. . . . . . . . . . . . . . . . . . . OSCAR JOHN KIHIKA **JUSTICE OF APPEAL**