[2025] UGCA 211

### THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA HOLDEN AT FORTPORTAL

(Coram: Dr. F. Zeija, DCJ, C. Barishaki, E. Nambayo, JJA)

## CIVIL APPEAL NO. 0249 OF 2016

(*Arising from HCT-01-CV-CA-32/2015*)

$\mathsf{S}$

*(Also arising from Civil Suit No.41 of 2011)*

# 1. PONSIANO MUHINDO IRENGA

2. PERFECT ASSOCIATES &

**:::::::::::::::::::::::::::::::::::::**

HIGH COURT AUCTIONEERS

### **VERSUS**

#### JAPAN AUTO TRADERS (U) LTD ::::::::::::::::::::::::::::::::::: 15

(An appeal from the judgment and decree of Justice Batema N. D. A, delivered on the 17^th day of December, 2015 in High Court Civil Appeal No.32 of 2015 at *the High Court of Uganda at Fort Portal)*

# JUDGMENT OF CHEBORION BARISHAKI, JA

#### Introduction 20

This is a second appeal against the decision of Hon. Justice Batema N. D. A in High Court Civil Appeal No.0032 of 2015 dated 17^th December, 2015 at the High Court of Uganda Holden at Fort Portal.

### **Background**

The background to this Appeal as established from the record of court is that 25

Page 1 of 14

- ⁵ the 1.r appcllant filed Civil Suit Court of Kascsc against thc 2ntl alia a declaration that Motor Vehi to return said vehicle, a refund o damages, and costs of the suit. o. 0041 of 201 I in the Chicl Magistratcs' pcllant and thc rcspondcnt sccking lnler le No. UAJ 523L belonged to him, an ordcr Ug. Shs 5,OOO,OO0/=, special and gcneral - 10 In thcir rvrittcn statcmcnt of dcfc contcnded that the l.tappellant Shs. 9,5O0,000/= but failed to pa respondcnt sued the 1.1 appclla obtaincd judgmcnt which it cxccu ce, the 2nd appcllant and thc rcspondcnt urchased thc vehicle at an agrccd pricc of the balancc of Shs. 3,0OO,O00/=. That thc t for thc balancc at Nakawa Court and cd by impouncling thc vchick: - ¹⁵ Thc mattcr procccdcd cx partc.'lh appcllant and ordcrcd that thc I s' Shs 5,000,000/ = found in thc vc costs to bc paid from thc day thc 20 awardcd Shs. 3,0OO,0OO/= in gcn pcr annum on the principal sum Chief Magistratc found in favour of thc 1.' ppellant was cntitlcd to rccovcr thc vchiclc, iclc bc rcturncd, Shs 70,000/= pt:r day as vehicle was impounded till it is rctricvcd, al damagcs and interest at thc ratc of 257o UGX 5,0O0,00O/ = and costs of thc suit.

The respondcnt then filed an a No. O59-2O 1 5 seeking; setting asid Suir No.4l of 2O17', hcaring of t dccrec in Civil Suit No.4 I of 20 ¹1 ; plication vidc Miscellancou s Application the ex parte judgment and dccrcc in Civil e suit on mcrits; stay of cxccution of thc and costs.

²⁵ Thc rcspondcnt claimed that it wa that thc suit wzrs rcs judicata havr 75 of 2OO8 in the Chief Magistrat dismissed thc application and fou not scrvcd with summons in thc suit:rnd g been alrcady dctcrmincd in Civil Suit No. s' Court of Nakawa. The Chief magistratc d that in rrllscr.'rct: ol a v:rlirl .jLrtlgnrcrrt, or

l'}.r11r:2 of 14

⁵ decree or pleadings of the first c() sustained. urt, the plea of rcs judicata could not bc

Thc respondent then appealed the No. 0032 of 201 5. Thc first appell and allowed the appeal, it held second appeal. t ecision to the High Court vide Civil Appeal e court found in favour o[ thc rcspondcnt at the suit was res-judicata. Hcnce this

Grounds of Appeal

Thc appellant was dissatisfied with thc decision of thc first appcllatc court and filcd this second appcal on thc foll wing grounds;

- l. The learned Judge ^e in lano uhen he relied on a phone call of the ind.iuid.ual ChieJ Magistrate one Flauia Nassuna Matouu of Nakanaa ChieJ Mag Court uho uras not a. Luitness in the cdse to confirm whether or not the mdtter in Misc. Cause No,75 of 2OO8 uas d.isposed o;f erebg causing a miscarriage ofjustice. 2. The learned. Judge erre in lana when he held thqt civil suit No. O4 7 o.f 2O77 was res- dicata uithout ang evidence on court record. hence occasioni a miscarriage oJ justice. - evaluate the euidence o in la.w uthen he failed to properlg court record. and therebg came to a 3. The learned. .hrdge e wrong conclusion.

#### 25 Representation

Thc appellants wcrc rc was represented by Mr prcscntcd . Mascrcka Martin whilc thc rcspondcnt Patrick Lut\*.-^

Page 3 of 14

$\mathsf{S}$ Counsel for the appellant argued all the three grounds of appeal together as they were interrelated.

### **Appellant's Submissions**

Counsel for the appellant argued the three grounds together. He faulted the Judge on appeal for failing to properly apply the principle of res-judicata and 10 arrived at a wrong conclusion which occasioned a miscarriage of justice. That the appellant's main complaint was that there was no evidence on Court record to show that the appellant's Civil Suit No.041 of 2011 was res-judicata. Counsel added that the learned appellate Judge relied on a telephone call between him and the Chief Magistrate of Nakawa H/W Flavia Nassuna Matovu hence misapplying the principle of res-judicata. This in counsel's view caused 15 a miscarriage of justice to the appellant.

Counsel further submitted that the suit relied upon by the appellate Judge was Miscellaneous Cause No.75 of 2008 and page 187 of the Record of Appeal indicates that the Chief Magistrates Court of Nakawa was moved on the 28^th day of January, 2008 by letter to issue an order to impound motor vehicle 20 Registration No. UAJ 523L. He added that according to Miscellaneous Application No.121 of 2008, the same Court issued an interim order and consequently the attachment and the sale of motor vehicle Reg. No UAJ 523L was set aside as per the letter dated 20^th day of June, 2016. That the issue of attachment was concluded and the subject matter that is Motor Vehicle Reg.

Counsel contended that in the Chief Magistrates Court of Kasese at Kasese in Civil Suit No.041 of 2011, the 1^st appellant's claim was for illegal impounding

No. $UAJ$ 523L was returned to the 1^st appellant.

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⁵ of his motor vehicle Rcg. No. UAJ the 7th day of March, 2011. That damagcs of 5,OOO,O00/=, loss of i Misccllaneous Application No.75 o of action that arose on the 7th d ¹⁰ learned appellate Judge erred in la was rcs-judicata. 23L by thc rcspondcnt and his agcnts on thc 1"r appcllzrnt also claimcd for spccizrl <>mc and gcncral damagcs. I lc addcd that 2OO8 did not act as rcs-judicata to a causc y of March, 201 1 . In counscl's view, thc by holding thar Civil Suit No. O4l of 201 I

Counsel further contended that ha Court rccord to frcsh scrutiny, it handlcd by the Chicf Magistratc's ¹⁵ was handled by thc Chicf Magistr the High Court subjcctcd thc cvidcncc on uld havc rcalizcd that thc issucs thert wcrc ourt of Nakawa wcrc diffcrcnt from what c's Court of Kascsc vidc Civil Suit No. O4 ^I

- of 2Ol7 and hcncc would havc co res-judicata did not apply to thc m that was beforc thc Chicf Magist 20O8 was for impounding motor c up with a conclusion that thc dcfcncc o[ ttcr at hand. Counscl addcd that thc casc tc o[ Nak:rw:r vidc Misc. Czrusc No.75 ol chiclc Rcg. No.5231, and this m.rttcr was - ²⁰ concluded and thc subjcct mattc appcllant. Whereas in thc Chicf M Civil Suit No. O4l of 20 I I , thc cau 2O 1 I whcn thc rcspondcnt imp rcgistration No. UAJ 523t,. That al ²⁵ are thc same, thc cause of action not be res judicata by thc judgm 200t1. Counscl rclicd on Jadua K' EACA 74, [<rr thc proposition t hr,lt subjcct matter in thc subscqucnt (thc motor vchiclc) rcturncd to thc I "t gistrate's Court of Kascsc at Kascsc vidc of action arosc on thc 7th day of March, nded thc 1", appcllant's motor vchiclc ough thc subject mattcr and thc partics as diflcrcnt and in counscl's vicw, it could nt in Miscellaneous Application No.75 of rsan V Hantnea.m Slngh Bhogal (1953) r thc defcnce of res-judicata to apply, thc ttcr must bc covcrcd by thc prcvious suit.

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⁵ Counscl praycd that this Court all dccrcc of thc High Court and ordc and thc Courts bclow. ws the appeal, sets aside the judgment and the respondcnt to pay costs of this appcal

# Respondent's submlsslons

Counscl for the rcspondent subm solcly on thc phonc call to allow Court considcrcd thc plcadings th 10 15 csserrtially confirmed that there in Nakaw:l that arosc from Misc effectively becn concludcd and telephonc call to the said Court w ²⁰ lcarncd . Iudgc sought to confirm had cvcr bccn filcd and disposcd o 2008 to wit an ordcr and a Warr Court exercised its inherent powe Act to mnkc ordcrs ncccssary for t ofcourt proccss. Hc added that if tted that thc appellatc Judgc did nor rcl],, ivil Appeal No. 32 of 20 15 but rathcr thc t were furnished for Misc. Causc No. 75 of nt of Attachment. That thc first appcllatc s under Section 98 of the Civil Proccdurc c cnds of justicc and to prcvcnt tht'zrl;r.rst: ything, thc availed Court documcntirtior.r e cxccution procccdings in thc lowcr Court cll ncous Causc No. 75 of 2OOU and tl.rr:sc h:rd ng disposed of. In counscl's vicw, tht: an administrative formality by which thc ether Miscellaneous Causc No.75 of 20ott S by the said Court.

Counscl furthcr submittcd that cvcntual conclusion of Miscellan Magistratcs Court of Nakawa, the lowing thc orders, execution proccss and ous Causc No.75 of 2OO8 at thc Chicf lst appcllant herein, went ahcad withoul

25 any lawfu I justification whatsoever of 2O 1 I at thc Chicf M:rgistratcs ^C fercts and pcrterincd to thc samc pa Registration No. UAJ 523L which and filed another suit vide Civil Suit No.4 ^I urt of Kascsc that was foundcd on simil:rr ies and subject matter to wit Motor Vchiclc motor vehicle had long been impounded

Page 6 of 14

- $\mathsf{S}$ earlier pursuant to the orders of the Chief Magistrates Court of Nakawa in 2008. In counsel's view, Civil Suit No.41 of 2011 was for all intents and purposes res judicata and this effectively set the Chief Magistrates Court in Nakawa and Kasese respectively on a collision course. - Counsel submitted that it was not surprising that the said Court's arrived at $10$ different and conflicting findings yet the two matters were fundamentally similar in nature. In counsel's view, such occurrences if anything, pave way for a situation where litigants choose which judicial officers should hear their matters, which is in total contravention of the rules of procedure. He added that if the appellant had considered himself aggrieved and dissatisfied with - 15 the findings in the Chief Magistrates Court of Nakawa, he would have pursued the legal avenues available which included but were not limited to seeking for review or filing an appeal as he did. He relied on **Ponsiano Semakula V** Susane Magala & Others, 1993 KALR page 213 cited with approval in Maniraguha Gashumba V Sam Nkundiye, Civil Appeal No.23 of 2005 for - the proposition that the doctrine of res-judicata embodied in S.7 of the Civil 20 Procedure Act is a fundamental doctrine of all Courts that there must be an end to litigation. Counsel prayed that this Court dismisses the Appeal with costs to the respondent.

### Duty of the second appellate Court

25 The duty of the second appellate $c\phi$ urt has been laid down under **Rule 32(2)** of the Judicature (Court of Appeal Rules) Directions which provides that;

> "On any second appeal from a decision of the High Court acting in exercise of its appellate jurisdiction, the court shall have power to

> > Page 7 of 14

| | appraise the inferences of fact drawn by the trial court, but shall | | | | | | |--|---------------------------------------------------------------------|--|--|--|--|--| | | <i>not have discretion to hear additional evidence.</i> " | | | | | |

# Section 72 (1) of the Civil Procedure Act also provides that;

*1) Except where otherwise expressly provided in this Act or by any* other law for the time being in force, an appeal shall lie to the Court of Appeal from every decree passed in appeal by the High Court, on *any of the following grounds, namely that*—

(a) the decision is contrary to law or to some usage having the force of law;

(b) the decision has failed to determine some material issue of law or usage having the force of law;

(c) a substantial error or defect in the procedure provided by this Act or by any other law for the time being in force, has occurred which may possibly have produced error or defect in the decision of the *case upon the merits.*

Further in Gashumba Maniraguha v Sam Nkundiye, Civil Appeal 20 **No.23 of 2005,** this Court held as follows;

> "This being a second appeal, this Court is not required to re-evaluate" the evidence. That is a duty of the first appellate Court, which must review the evidence and consider the material before the trial Court. Even where the trial Court has erred, the appellant Court will only interfere where the error has occasioned a miscarriage of justice. The second appellate Court has $n\phi$ duty to re-evaluate the evidence of the trial Court but will consider the facts of the appeal to the extent of

> > Page 8 of 14

$\mathsf{S}$

considering the relevant point of law or mixed law and fact as raised in the second appeal. It may only interfere with the conclusion of the first appellate Court, if that Court misapplied or failed to apply the principles set out in **Pandya** V R (1957) EA 336, Kairu V Uganda (1978) HCB 123 and S. M Ruwale V R (1957) EA 570."

10 I am guided by the above principles and this Court shall limit itself to its role as a second appellate Court.

#### Court's consideration

I have carefully studied the record of appeal, the submissions of counsel and the authorities availed to this Court for which I am grateful.

15 Counsel for the appellant faulted the learned appellate Judge for holding that the suit was res-judicata yet there was no evidence on Court record to show that the appellant's Civil Suit No.41 of 2011 was res-judicata. In response, counsel for the respondent submitted that the said Civil Suit was for all intents and purposes Res Judicata and this effectively set the Chief Magistrates Court in Nakawa and Kasese respectively on a collision course. 20

#### **Section 7 of the Civil Procedure Act, CAP 282** provides as follows;

"No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try the subsequent suit or the suit in which the issue has been subsequently raised, and has been heard and finally decided by

Page 9 of 14

$\mathsf{S}$

that Court."

The Supreme Court in Mansukhlal Ramji Karia and Another V Attorney General and Others (2004) UGSC 32, held as follows;

"The provision indicates that the following broad minimum conditions have to be satisfied: -

- 1. There has to be a former suit or issue decided by a competent Court. - 2. The matter in dispute in the former suit between parties must also be directly or substantially in dispute between the parties in the *suit where the doctrine is pleaded as a bar.* - 3. *The parties in the former suit should be the same parties, or parties* under whom they or any of them claim, litigating under the same title.

In HCCS 553 of 1966 (Ismail Karshe V Uganda Transport Ltd) cases on Civil Procedure and Evidence, Vol.3 page 1, Sir Udo Udoma, former Chief Justice of Uganda, put it this way: once a decision has been given by a Court of competent jurisdiction between two persons over the same subject matter, neither of the parties would be allowed to re-litigate the issue again or to deny that a decision had in fact been given, subject to certain conditions."

The learned trial Judge held as follows:

"I have explained that there is a case that was handled in Nakawa Miscellaneous Cause 75/2008. The record produced by Nabuso shows that there were orders of attachment. I have called the Chief Magistrate Flavia Nassuna Matovu and talked to her on loud mode in the presence

Page 10 of 14

$\mathsf{S}$

of all parties and their lawyers. She confirms the matter was disposed of but the records are missing from the Court file save for what she found and has certified for this High Court.

I have no doubt that the matter was res judicata and so Civil Suit No.041 of 2011 at Kasese was misconceived and cannot stand in law. The *Appeal is summarily allowed; all orders of the lower Court are set aside* with costs."

I will give a brief chronology of the events of this Appeal.

By a letter dated 20^th June, 2016, the then Chief Magistrate of the Chief Magistrate's Court of Nakawa, H/W Ereemye Jumire James Mawanda wrote to Masereka, Mangeni and Co. Advocates about the status of Miscellaneous Cause No.75 of 2008, Japan Auto Traders (U) Ltd v Muhindo Ponsiano Irenga, Miscellaneous Application No.119 of 2008 and Miscellaneous Application N0.120 of 2008. In the said letter, the then Chief Magistrate stated as follows;

> "I refer to yours Ref. No. MM/pm/225/2016 dated 15^th day of March, 2016.

> *I* wish to give the status of the above mentioned applications as they are on Court File and the Court Register Book, I will however, not give a record *of proceedings because I do not find any proceedings on Court record but I will provide certified copies of all the available Court Orders and other* documents on file."

Court went ahead to avail certified copies of the application in Miscellaneous Cause No.75 of 2008, Japan Auto Traders (U) Ltd V Muhindo Posiano Irenge

Page 11 of 14

$\mathsf{S}$

- ⁵ sccking to impound and sell moto an ordcr allow:ng thc applicant in Auto Trerdcrs (U) l.td V Mutrindo No. UAC 523L and the same be sol ordcr in Misccllancous Application ¹⁰ V Japan Auto Tradcrs (U) LTD rc vchiclc Rcg. No. UAJ 5231,, liryot:.r Corolla, isccllancous Causc No.75 of 2O0it, .lap:rn iano Ircngc to impound motor vchiclc Rcg off by public auction and lastly an intcrim No. 121 of 2008, Muhindo [)onsiano Ircngc raining thc rcspondcnt or his:.rgcnts:rn<l - scrvants from auctioning Car No. disposal of Misccllaneous Applicat AJ 523L a Toyota Corolla until thc fin:il n No.l 19/20O8

'l'hc lst appcllant thcn sucd thc 2rr( Magistratc's Court of Kascsc in Ci ¹⁵ Motor Vchicle No. UAJ 523L br:krn appcllant and thc rcspondcnt in thc Chicf I Suit No.4 1 of 201 I for a dcclaration rhat cd to him, frrr return o[ MOtor Vchiclc No.

- Un..r 5231-, a rcfund of 5,000,000/ pcr day from 71h March, 2O I 1 up t damages. Judgmcnt wars given in , an order for paymcnt of UGX 7O,OOO/= the rcturn of thc suit vchiclc and gr:ncral vour of thc I't appcllant - Thc respondent appealed to the Hi ²⁰ thc lcarncd appcllate Judgc found Suit No. O4 I of 201 I at Kascsc was Thc learncd appellatc Judge allowe thc lower Court with costs. The res h Court of Uganda at Fort Portal, whercin t thc suit was rcs judicata and that Civil misconccivcd and could n()t stand in Ia\.&. thc appcal and sct asidc all thc ordcrs ol ndcnts thcn appcalcd to this Court.

I have carcfully studied the abovc ²⁵ guidcd by the above Suprcme Cou o.nd Another V Attorneg General Civil Suit No. O41 of 2O I I , Ponsian Japan Auto Tradcrs (U) LTD was d ronology of evcnts and at thc samc tirnc dccision in Mansukhlal Ramji Karia d Others (2OO4) UGSC 32 ancl l-inrl that Muhindo Ircnga v Pcrfcct Associatcs and idcd by Nakerwa Chicf Magistratcs Cou rt

Pagc 12 oI 14

5 in Miscellancous Causc No.75 of ² Posiano lrengc and in both suits, UA.-I 523L. 08, Japan Auto Tradcrs (U) Ltd V Muhindo c mattcr in disputc was Motor Vchiclc No.

I do not agrcc with counsel for th Judge relicd on a telephone call ¹⁰ Nakawa H/W Flavia Nassuna Ma judicata. I havc already statcd ^a Nakawa availed certified copies of . Auto Traders (U) Ltd V Muhindo P to impound motor vehicle Rcg. N ¹⁵ public auction and lastly an int No.121 of 2008, Muhindo Ponsia rcstraining the rcspondcnt or his a UAJ 523L a Toyota Corolla un Application No. 1 19/ 20O8. appcllant's submission that thc appcllatc twccn him and thc Chicf Mergistratc ol vu hence misapplying thc principlc of rcsovc that thc Chicf Magistratcs Court o[ iscellancous Causc No.75 of 2OOt3, . Japan siano Ircngc, and an ordcr arising thcrcin . UAG 523L and thc samc bc sold off by rim order in Miscellancous Application o Ircngc V . Japan Auto Tradcrs (U) LTD nts and scrvants from auctioning Car No. I thc final disposal of Miscellarncous

20 Thercfore, the availed certified co confirmcd that thcrc wcrc cxccutio that arosc from Misccllancous Ca cffcctivcly bccn c<lncluded and long ies of Court documcntation csscntially procccdings in thc lowcr Court in N:rkarvir sc No. 75 ol 2o0tt and thc m.rttcr had disposcd of

I thcrcforc agrcc with thc lc:rrned ²⁵ 2O 1 I in thc Chicf Magistratcs Cour stand in law and in light of thc abov thc lcarncd appcllatc Judge rightly ppellate Judge that Civil Suit No.04 I of of Kasese was misconccivcd and cannot , I find that the matter is res judicata and oLlndso

'l'his Appcal thcrcforc fails and hcrcby dismisscd with costs to tl'rc

Page 13 of 14

respondent here and in the Courts below. The orders of the learned appellate $\mathsf{S}$ Judge are hereby upheld.

I so order Dated at Fort Portal this.................................... $\frac{1}{2025}$ day of $\dots$ Cheborion Barishaki JUSTICE OF APPEAL

$10$

Page 14 of 14

#### THE RE BLIC OF UGANDA

IN THE COURT OF APPEAL F UGANDA HOLDEN AT FORTPORTAL

> (Coram: F. Zeiia, C. Barishaki, E Nambayo, ./lA)

#### CIVIL APP L NO. 0249 0F 2015

(Arising from T-01-cv-cA-32/201s)

(Also arising Civil Suit No.4l of 2011)

1. PONSIANO MUHINDO IRE

2. PERFECT ASSOCIATES & HIGH COURT AUCTIONEERS

APPELLANTS

VERSUS

JAPAN AUTO TRADERS (U) L D RESPONDENT

(An appeal from the judgment on the lVh day of Decembe4 20 at the High Cou decree of Justice Batema N. D. A, delivered 5 in High Court Civil Appeal No.32 of 2015 of Uganda at Fort Portal)

#### ^J^UDGMENT F ESTA NAMBAYO, JA

I have had the benefit of reading in d ft the judgment of my brother Justice Cheborion

Barishaki, JA. lagree with his findings.

| Dated at Fort Portal this | t<br>day | 6"&<br>2o2s | |---------------------------------------|--------------|-------------| | | .i-r<br>/<-- | | | Nam bayo<br>E<br>E OF APPEAL<br>JUSTI | | |

#### THE RE UBLIC OF UGANDA P

### IN THE COURT OF APPEAL F UGANDA HOLDEN AT FORTPORTAL

[Coram: F. Zeija,DCJ, n-Barishaki, E. N ambayo,J J A.l

## CIVIL APP EAL NO. 0249 0F 2016

# 1. PONSIANO MUHINDO IRENGA

2. PERFECT ASSOCIATES & HIGH COURT AUCTIONEERS APPELLANTS

### VERSUS

### JAPAN AUTO TRADERS (U) LTD RESPONDENT

(An appeal from the judgment and decree f Justice Batema N D A., delivered on dated 17h day of December, 2015 in High Court Civil Appeal ltlp. 0032 of 2015 at the High Courl of Uganda at Forl Poftal)

## JUDGMENT O DR. FLAVIAN ZEIJA DCJ

I have read the judgment of Justice Chbborion Barishaki, JA. I agree with his findings and conclusions that this appeal fails.

Since Justice Esta Nambayo, JA also lsrees, this appeal fails and is hereby dismissed with the costs tothe respondent here and in the Courts below. The orders of the learned appellate Judge are hereby upheld. ^I

| Dated at Fort Portal this | Day ol<br>2025 | |---------------------------|----------------------| | | | | | Flar/ian Zeija (phd) |

DEPU CHIEF JUSTICE