[2000] UGCA 39

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

## CIVIL APPEAL NO. 32 OF 1999

# CORAM: HON. LADY JUSTICE A. E. N. MPAGI-BAHIGEINE,JA. HON. MR. JUSTICE J. P. BERKO, JA. HON. MR. JUSTICE A. TWINOMUJUNI, JA.

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TEDDY SENTONGO BIRUNGI APPELLANT

#### VERSUS

| ,1, | WILBERFORCESEKUBWA] | | |-----|---------------------|--------------| | 2, | ANGELA AMUGE | 1 | | 3. | PROSPER NJAWUZI | IRESPONDENTS | | 4, | AMIR NSEREKO | ] |

(Appeal from the JudgmenuDecree of the High court of Uganda by the Honourable Justice Augustus Kania dated 19t February,'t999 in HccS No. 167 of 1995.) 2o

### JUDGMENT OF J. P. BERKO J. A.

This is an appeal from the Judgment of the High Court whereby the court awarded the first respondent, Wilberforce Sekubwa, the sum of Shs. 11,024,0001= damages against the appellant, Teddy Sentongo Birungi, in respect of his vehicle that was damaged as result of the negligence of one Njawuzi Prosper, a servant or agent of the appellant.

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a Originally the action was brought against Angela Amuge, the flrst defendant who was said to be the registered owner of vehicle No. 407 UAF that was being driven at the material time by her servant or agent Njawuzi Prosper in the course of his employment. Angela Amuge, in her written statement of defence, denied that Njawuzi Prosper was her servant or agent and that at the time of the accident the motor vehicle No. 407 UAF was in her possession or under her control. The appellant, Teddy Ssentongo Birungi, was joined as co-defendant on the application of Angela Amuge on the ground that at the time of the accident she had sold the vehicle to her and that Njawuzi Prosper, who was in charge of the vehicle, was her servant. The plaint was accordingly amended by including the appellant as a second defendant. The appellant filed ^a defence and denied that she was the owner of vehicle No. 407 UAF. She also denied that Nlawuzi Prosper was her driver. Consequently the plaint was further amended by joining Njawuzi Prosper as the third defendant. The plaint was again amended by adding one Amir Nsereko as the fourth defendant on the allegation of the appellant that he was in possession and control of the vehicle at the time of the accident.

> The final amended plaint alleged that the vehicle 407 UAF was the property of the first, second and fourth defendants and/or either of them and was at the material time in charge of the third Defendant as the servant or agent of the first, second and fourth defendants and/or either of them in the course of his employment. The particulars of negligence of the third defendant pleaded were.

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- (a) driving so fast at a speed excessive in the circumstances; - (b) driving without due care and/or regard to other road USCTS; - (c) failing to slow down, or to effectively control the said vehicle so as to avoid the accident; - (d) failing to keep any proper lookout so as to see a pot hole in his lane so as to avoid the swerving suddenly into the plaintiff's lane thereby causing the accident; and - (e) driving carelessly and recklessly.

The plaint contained also particulars of negligence of the defendants, but in view of the issues agreed upon for determination, I find it unnecessary to set them out. Particulars of special damages were also pleaded. The third defendant failed to enter an appearance or file a defence. Accordingly interlocutory judgment was entered against him under Order 9 rule 6 of the Civil procedure Rules.

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The circumstances that brought the parties to court can be summarised briefly as follows. Angela Amuge and her husband Martin Emakurat were the owners of lt/lazda Mini Bus 407 UAF. The vehicle was registered in the names of Angela Amuge. They gave the vehicle to Amir Nsereko to repair and sell to recover his costs of repair. The appellant was also the owner of UVY 185 Datsun pick-up which she wanted to dispose off. She agreed to trade-in her said pick-up with 407 UAF plus cash Shs. 2,000,000/=. The appellant gave to Mr. Amir Nsereko the log book and keys of her pick-up plus 1,500,000/= and took in exchange vehicle No. 407

UAF. The log book of 407 UAF was to be given to her after the payment of the balance of 500,000/=. The appellant took possession of the vehicle and it was being driven by her driver, the third defendant, when the accident happened on the ^12112194 between 407 UAF and the plaintiff's Benz Saloon car. At the time of the accident the Benz Saloon car was bearing a garage No. U1 703 D1 UPF 922. The plaintiff was prosecuted and convicted for driving unregistered vehicle with garage number plate after 6p.m. The third defendant was also prosecuted and convicted of careless driving.

After the accident the appellant tried to repudiate the agreement to purchase the vehicle 407 UAF and used the police and an army officer to force Amir Nsereko to refund the Shs.1,500,000/= paid towards the purchase of vehicle 407 UAF and a return of her vehicle UVY 185. She maintained that at the time of the accident the vehicle 407 UAF was not in her possession. lt was rather in possession of Amir Nsereko. She also denied that the third defendant was her driver.

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At the trial the following issues were agreed upon for determination:

- (1) who owned vehicle 407 UAF and was in control of it when the accident happened; - (2) whose agent or servant was in charge of the vehicle when the accident happened; - (3) was the driver in charge of the vehicle negligent?

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(4) lf the answer to (3) is in the affirmative, is the plaintiff entitled to damages and the quantum?

I think a fifth issue should have been whether the driver was driving the vehicle in the course of his employment. That would bring out clearly the issue of vicarious liability that was crumsly included in the second issue.

ln my view, since judgment has already been entered against the third defendant, issue 3 did not arise. Nevertheless the learned trial judge considered the matter. He found that the third defendant left his lane when trying to avoid a pot hole on his lane and suddenly swerved and collided with the plaintiff on his lane. He therefore found that the third defendant was negligent. l0

The judge also found that the appellant was the owner of the vehicle and it was under her control on 1211211994 when the accident happened. The judge again found that third defendant was the servant or agent of the appellant and was driving the vehicle in the course of his employment. He consequently held that the appellant was vicariously liable for the negligence of the third defendant.

The learned trial judge proceeded to assess the damages and made the award which is not being challenged in this appeal. He therefore entered judgment for the plaintiff against the appellant and the third defendant jointly and severally for the sum assessed. He also awarded costs in favour of the plaintiff and the first and fourth defendants.

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There are six grounds of appeal, namely:

- (1) The learned trial judge erred in law and fact when he entered judgment in favour of the plaintiff whose cause of action and claim was (sic) founded and based on an illegality; - (2) the judgment of the court was a nullity and contrary to the principle of "extupi causa non oritur actio"; - (3) the learned trial judge erred in law and fact when he contradicted himself by entering judgment jointly and severally against the appellant and the third defendant. - (4) the learned trial judge erred in law and fact when he misapplied the law applicable to vicarious liability; - (5) the learned trial judge erred in law and fact when he failed to properly evaluate the evidence adduced and as a result reached a wrong decision; - (6) the learned trial judge erred in law and fact when he awarded costs to the first, second and fourth respondents against the appellant and third respondents.

Grounds 1 and 2 were argued together, three and four were also argued together; whilst 5 and 6 were argued separately.

Grounds one and two raise a point of law that was not argued in the lower court. The point of law in question was that the plaintiff was driving a car bearing a garage number plate when the accident happened at 10p.m. lt was an offence under the Traffic

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and Road Safety Act, 1970 (a) to use on a road a motor vehicle without the prescribed registration plates affixed on the motor vehicle and (b) to use a dealer's plate when not authorised and without the dealer's vehicle licence. lt was the contention of learned counsel for the appellant, lVlr. Mohammed Mbabazi, that as the plaintiff was illegally using his vehicle on the road contrary to the Traffic and Road Safety Act, he cannot maintain an action for the damage caused to his vehicle that was illegally on the road on the principles o'f "exturpi causa non oritur actio". Counsel for the first respondent, [Vr. Sam Njuba, has contended that the appellant should not be allowed to raise, on an appeal, matters of law or fact not canvassed in the lower court.

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ln my view, the two grounds involved the application of the maxim quoted above and its effect on the plaintiff's claim. That is a question of law and not fact. lt is now settled that questions of law can be raised for the first time in an appellate court and therefore the two grounds were properly included in the Memorandum of Appeal for this court to consider and determine: 2() See Paul K. Ssemoqerere and Another vrs. The Attorne ^v General. Constitutio nal Apoeal No. 1 of ²⁰⁰⁰ (unrepofted) Supreme Court.

It is trite law that an illegality cannot found a cause of action. ln Scott vrs Brown, Doering, McNab & Co. [1892] 2QB ⁷²⁸ Lindley L J at page 728 said:

> "Ex iturpi causa non oritur actio. This old and well known legal maxim is founded in good sense, and

expresses a clear and well - recognised legal principle, which is not confined to indictable offences. No court ought to enforce an illegal contract or allow itself to be made the instrument of enforcing obligations alleged to arise out of ^a contract or transaction which is illegal, if the illegality is duly brought to the notice of the court, and if the person invoking the aid of the courT is himself implicated in the illegality. lt matters not whether the defendant has pleaded the illegality or whether he has not. lf the evidence adduced by the plaintiff proves illegality the court ought nof assist him".

This was a case where the plarntiff and one of the defendants had entered into agreement to purchase shares at a fictitious premium in a Company in order to induce persons who might thereafter purchase shares in such company to believe that there was bona fide market for the shares in that company and that the shares 20 were at a real premium. Both the plaintiff and the defendant knew that was not true. The plaintiff sued for the recession of the contract and to recover the monies paid by him to one of the defendants. The court held that the action was based on illegal contract and so could not be maintained.

It is worthy to note that that action in Scotf v Brown, Doering, McNab & Co (supra) was based in contract. lt was cited with approval in - Mistry Amar Singh v Serwano Wofunira Kulubya (1963) E. A. 408. The respondent, an African,

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was the registered proprietor of three plots and Mailo land which he purported by agreement to lease for a year to the respondent, a non-African. The consents of the Lukiko as required by S. 2(d) of the Possession of Land Law and of the Governor required by S. 2 of the Land Transfer Ordinance, were not obtained for any of the three transactions. On termination of the tenancies the appellant held over for some years on each of the plots as a tenant from year to year at increased rents. The respondent then gave notices to quit and sued for possession of the plots and eviction of the appellant therefrom, basing his claim first upon the agreements to lease but finally in his reply upon his registered ownership of the plots and independently of the agreements to lease.

It was common ground that the respondent, in permitting the appellant to lease, occupy and use his mailo land without the approval of the Lukiko was acting in contravention of the law and committing an offence. Sirnilarly the appellant also acted in contravention of the law in contracting to take the plots on lease and in occupying them without the approval of the Governor. The trial judge dismissed the suit on the ground that both parties were in pari delicto and as a result the respondent was not entitled to recover possession of the plots. On appeal by the respondent the Court of Appeal allowed the appeal and decreed that the appellant be evicted from the plots and give possession to the respondent. There was a further appeal to the Privy Council. The holdings of the Privy Council, relevant for our purpose, are contained in holdings two and three, namely,

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- (2) the respondent's right to possession was in no way based upon the purported agreements and he required no aid from the illegal transactions in order to establish his case; - (3) the respondent was neither obliged to found his claim on the illegal agreement into which he had entered nor in order to support his claim, to plead or to depend upon the agreements, and accordingly, he was not in pari delicto with the appellant but was a member of a protected class.

At page 415 the cou( said:

"ln this case the plaintiff, in spite of what was set out in his pleadings and in spite of the claims which the pleadings at fi'rst contained, did not at the trial in any way rely upon or seek to enforce the unlawf ul agreements though he had himself made it known he had entered into them. That, however, did not make him "in pari delicto" with the defendant. He was a memher of the protected class".

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ln arriving at the above decision the Privy Council cited and relied on the following statements in the judgment in Scotf v Brown, Doering, McNabs & Co (Supra).

Lindley LJ at page 729 added:

"Any rights which he may have irrespective of his illegal contract will, of course, be recognised and enforced".

lo # o A. L. Smith L J at 734 said;

"lf a plaintiff cannot maintain his cause of action without shewing, as part of such cause of action, that he has been guilty of illegality, then the coutTs will not assisl him in his cause of action".

l0 The next case referred to by Mr. Mbabazi is Ashmore, Benson, Pease & Co Ltd v AV Dawson Ltd [1973] 2 All E R. 856. The plaintiff in that case had manufactured a large "tube bank" weighing 25 tons which was to be transported from their works to a port for shipment The plaintiff's transport manager arranged for the load to be transported by the defendant. The defendant arranged to take the load on one of their vehicles at agreed price. The plaintiff's transport manager was present when the tube was loaded on to the defendant's vehicle. The transport manager was familiar with the statutory regulations governing the carrying of loads on motor vehicles Under reg. 73(2) of the Motor Vehicles (Construction and Use) Regulations, 1966, the maximum laden weight of the defendant's vehicle was 30 tons. As the unladen weight of the vehicle was ten tons, the total weight exceeded the prescribed maxirnum by five tons. The carriage of the tube bank by that vehicle was therefore unlaMul under reg. 64 (2)b of the Road Traffic Act 1966 Nevertheless the plaintiff's transport manager did not raise oblection to the use of the vehicle; nor did he point out that the appropriate vehicle to carry the load was a "low - loader" which the defendant did not have. The vehicle started on its lourney and, and half way to the port, the 20

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vehicle with its load toppled over, damage was done to the tube bank. The plaintiff brought an action for damages alleging negligence and/or breach of contract on the part of the defendants. The trial judge held that the contract between the plaintiffs and the defendants was lawful when made, that the plaintiffs had relied on the defendants to carry out the contract lawfully and that the defendant could not, therefore, plead tllegality of the contract as performed as a defence to the plaintiffs' claim. On appeal it was held that, on the evidence, the transport manager of the plaintiffs must have realised, when he saw the 25 tons tube being loaded on to the defendant's articulated vehicle, that the load was in breach of the regulations. Accordingly, even if the contract were laMul at its inception, its performance was unlawful once the plaintiffs, through their manager, had participated in the illegality since the manager had sanctioned the loading of the vehicle with a load in excess of the regulations. Having participated in the illegal performance of the contract the plaintiffs were debarred from claiming damages in respect of the accident. This case also concern contract.

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The next case was Belvoir Finance Co Ltd v Harold G. Cole & Co. Ltd [1969] 2 All ER 904. fhe action was based on hire purchase agreements which were found to be illegal, yet the plaintiff was able to establish his title to the cars because he was able to found his claim on his earlier purchases of the cars, without the necessity of any reference to the illegal hire-purchase agreements.

It seems therefore that maxim "Ex turpi causa non oritur actio" arises in the law of contract or where the action ls based or grounded on illegal act perpetuated by the plaintiff and the illegality must be inherent in the cause of action. This is made clear in Taylor v Chester (1869) L. R. 40 B 309 at page 374 where it was said:

"The true test for determining whether or not the plaintiff and defendant were in pari delicto, is by considering whether the plaintiff could make out his case otherwise than through the medium and by the aid of the illegal transaction to which he was himself a pafty"

That was a case where the plaintiff was forced, in order to support his claim, to plead illegality of a contract

The only case cited to use in which the cause of action was based on Negligence is Ashlon v Turner and Another [1981] 68 137. This was a case where three young men after a drinking spree in the evening, two of them committed burglary and sought to escape from the scene of their crime in a car belonging to the third. There was an accident in which one of them was badly hurt. He claimed damages, alleging negligence agalnst the driver, the first defendant, who had pleaded guilty to driving in a manner dangerous and driving with blood - alcohol above the prescribed limit, and against the car owner, the second defendant, who was alleged to have permitted the first defendant to use the car without insurance. ln drsmissirrg the plaintiff's claim, the court held that in certain circumstances, as a matter of public policy, the law might not recognise that a duty of care was owed by one participant in a

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crime to another in relation to an act done in the course of the commission of the crime and that, on the facts, the defendant did not owe a duty of care to the plaintiff during the burglary or the subsequent flight from the scene of the crime in the get-away car.

ln my view the application of the maxim in Askton ^v Turner (supra) was justified on the facts of the case. Public policy would not permit one participant in a crime to maintain an action against the other participant in the same crime in relation of act done in connection with the commission of that crime.

The authorities I have referenced to show that if the plaintiff can prove his case without relying, as part of his cause of action, that he has been guilty of illegality, then he can maintain his action and enforce his claim. The plaintiff in the instant case need not, as part of his cause of action, rely on the fact that his car had a garage number plate in order to prove his case.

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The argument of lVlr Mbabazi is that the plaintiff's vehicle was on the road illegally and unlawfully by reason of the fact that it was bearing dealer's plate and therefore no duty of care was owed to him. I need only to give two examples to demonstrate the absurdity of the argument. Supposrng a convict prisoner escapes from prison and whilst crossing the road to get a get-away car, he is knocked down by an over-speeding driver and he sustains injuries. On the basis of lVlr. Mbabazi's argument the escaping prisoner could not maintain action in negligence against the overspeeding driver because the prisoner, having escaped from prison, was not legally or lawfully on the road. Surely there is no

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connection between his escaping from laMul custody and his being knocked down on the road. He need not, in proving his case against the over-speeding driver, have to call in aid, as part of his cause of action, the fact that he had escaped from lawful custody. Again it is an offence under The Road and Traffic Safety Act to drive a vehicle whose road licence has expired. lf the argument of Mr. Mbabazi is correct, it would mean that if such a vehicle is damaged through the negligence of somebody whilst being driven when its road licence had expired, the owner of the vehicle would not be able to maintain an action against the driver who damaged the vehicle because the damaged vehicle was not laMully on the road. ln my view that cannot be the law.

With due respect to Mr. Mbabazi, I think the maxim was wrongly applied to the facts in the instant case. I do not find any merit in grounds one and two. Consequently ground one and two must fail.

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The arguments of l\Ir. ttlbabazi on grounds 3 and 4 were that the judge was wrong to enter judgment against the appellant and the third defendant jointly and severally. He also contended that the judge misapplied the principle of vicarious liability. With due respect I do not find where the learned trial judge erred when he entered judgment against the appellant and the third defendant jointly and severally. The defendants were sued jointly and severally. The third defendant did not enter appearance or filed a defence. Consequently an interlocutory judgment was entered against him. The judge could rrot assess damages against him alone when the defendants are contesting the case. After trial the

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judge found that the appellant was the owner of the vehicle 407 UAF and that it was being driven at time of the accident by the third defendant in the course of his employment as the servant or agent of the appellant The ludge then proceeded to assess that damages. Having found that the third defendant was negligent and that he caused the accident rn the course of his employment as a servant or agent of the appellant, the logical conclusion that followed was to enter final judgment against the appellant and the third defendants jointly and severally. The third defendant was not subjected to double leorpady as the first judgment recorded against under Order 9 rLrle 6 of the civil Procedure Rules was only interlocutory. The final judgment could only be entered after the assessment of damages. That was exactly what the learned trial judge did. ln my view the decision cannot operate as bar to the appellant's claim for indemnity or contribution against the third defendant, if she so wishes. Consequently I do not see any merit in grounds 3 and 4 which should fail.

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The arguments in support of ground 5 can be grouped into three segments The first segment was that it was not proved that the plaintiff was owner of the Mercedes Benz car that was involved in the accident lVy short answer is that in a claim in negligence ownership of the subject matter is irrelevant. lt is possession that matters. At the time of the accident it was the plaintiff who was in charge of the vehicle He could therefore maintain action against the one who caused darnage to it. 20

The second segment was that the yudge used the negligence of the third defendant ro determine the vicarious liability of the

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appellant. ln my view that is what it should be. What the plaintiff needed to do was to prove, first that the third defendant was negligent. ln this case his duty was lessened by the failure of the third defendant to enter an appearance and file defence. Since the third defendant neither entered an appearance nor flled a defence, no issue was joined between him and the plaintiff. That was why the plaintiff recovered lrterlocutory judgment against him on the issue of whether or not the third defendant was negligent.

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The next stage was to find out who was the employer or master of the third defendant. On the evidence the judge found that the appellant was lris employer. The next stage was to find out whether the third defendant was in charge of the vehicle in the course of his employment when the accident occurred. In this respect the learned ludge found that he was. The inevitable conclusion from the above findings is to hold the appellant vicariously liable for the acts committed by the third defendant in the course of his employment. l()

The argument concerning the plaintiff being on the road illegally and unlawfully has already been covered in grounds one and two and there is no need to repeat them. ln the result, I find no merit in ground 5 wh:oh must fail.

Ground 6 complained about the award of costs in favour of the flrst and fourth defendants against the appellants. Costs follow the event. The first and fourth defendants were dragged to court because of the wrongful act of the servant or agent of the appellant. Therefore thr appellant was justly ordered to pay costs

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they incurred in defending the action. I find no merit in ground 6 which must also fail.

In the result I would dismiss the appeal with costs in favour of the first, second and fourth respondents.

Dated at Kampala this 24^th day of 1014.2000.

$10$

J. P. Berko Justice of Appeal.

## THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CIVIL APPEAL NO.32 OF 1999

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### CORAM: HON. LADY JUSTICE A. E. N. MPAGI-BAHIGEINE,JA. HON. MR. JUST]CE J. P. BERKO, JA. HON. MR. JUSTICE A. TWINOMUJUNI, JA.

TEDDY SENTONGO BIRUNGI APPELLANT

#### VERSUS

#### WILBERFORCE SEKUBWA & ANOTHER RESPONDENTS

(Appeal from the JudgmenuDecree ofthe High coun of Uganda by the Honourable Justice AUGUSTUS KANIA dated 191h February, 1999 in HCCS No. 167 of 'l 995.)

#### JUDGMENT OF A. E. N. MPAGI-BAHIGEINE. JA.

I have read in draft the judgment of J. P. Berko, J. A. I am of the same opinion. I would dismiss the appeal with costs to the first, second and fourth respondents.

Dated at Kampala tnis ..29].t...day of .... M \*1 ²⁰⁰⁰ )

> N. Mpagi-Bahigeine Justice of Appeal.

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

#### CORAM: HON. LADY JUSTICE A. E. N MPAGI-BAHIGIENE,JA HON. MR. JUSTICE J. P BERKO, JA. A HON. MR. JUSTICE A. TWINOMUJUNI, JA.

#### CIVIL APPEAL NO.32 OF I999.

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#### APPELLANT TEDDY SENTONGO BIRUNGI:::::

#### VERSUS

### WILBERFORCE SEKUBWA & ANOR::::::::::::RESPONDENTS

(Appeal fnm the judgment/decree of the High Court of IJganda ( Kania J. ) dated 19/2/99 in HCCS No. l67nS)

#### JUDGMENT OF TWINOMUJUNI. JA.

I have read in draft the judgment of Hon. J. P. Burke, JA. I agree. ^I would dismiss the suit with costs to the three respondents who defended this appeal.

Dated at Kam ala thiq... .2. Vil,.....day of .. M ²⁰⁰⁰

/l ICE PPEAL.