[2022] UGSC 31

## THE REPUBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA AT KAMPALA

## CORAM: ARACH AMOKO, MWONDHA, MUHANGUZI, TUHAISE, CHIBITA JJSC

## CIVIL APPEAL NO. 11 OF 2018

#### BETWEEN

1. PHILEMON WANDERA 2. HOIMA S. S SCHOOL 3. BOARD OF GOVERNORS- HOIMA SENIOR SECONDARY SCHOOL.... APPELLANTS

#### AND

1. YESERO MUGENYI 2. RTUMAN AND CO. LTD........... RESPONDENTS

(Appeal arising from the judgment and orders of the Court of Appeal dated 1"t June 2O18 Civil Appeal No. O61 of 2OO9 before Kasule, Kiryabwire, and Musoke JA/JCC) g

#### JUDGMENT OF MWONDHA. JSC

The appellants were dissatisfied with the judgment and orders in Civil Appeal No. 06 1 of 2OO9 by the Court of Appeal. In the memorandum of appeal hled on the 17th August 20 18, there were six grounds of appeal as follows: -

- (1)The learned Justices of the Court of Appeal sitting as the first appellate Court erred in law when they overlooked the illegalities that were manifested in the entire execution of the decree in Civil Suit No. 131 of 198!, thus coming to a wrong decision to the detriment of the appellant. - (2)The learned Justices of the Court of Appeal erred in law when they failed to evaluate the evidence on record that clearly

implicated the $1^st$ respondent as a party to the fraudulent sale of the attached property in Civil Suit No. 131 of 1989.

- (3) That the learned Justices of the Court of Appeal erred in law when they refused to hold the $1^{st}$ respondent liable for the excess attachment in execution of the decree in Civil Suit No. 131 of 1989 whereas it was manifestly clear that the bailiff was acting for the benefit of the respondents. - (4) That the learned Justices of the Court of Appeal erred in law when they held that procedurally, the appellant ought to have sued the bailiff other than the respondents for the excess attachment put in motion by the respondents thus coming to the wrong decision of dismissing the appeal before them. - (5) That the learned Justices of the Court of Appeal erred in law when they held that the sale of the appellant's properties /bibania in execution of the decree in Civil Suit No. 131 of 1989 before expiration of the mandatory 30 days from the date of the advertisement was lawful whereas not - (6) That the learned Justices of the Court of Appeal erred in law when they held that no fraud in law was proved.

It was proposed that this Court issue the following orders: -

- (1) That this appeal be allowed and orders of the lower Courts be set aside. - $(2)$ Execution be set aside and the property be returned to the appellants. - (3) Grant the costs of the appeal and the lower courts to the appellants.

#### **Background**

This appeal originated from High Court Civil Suit No. 131 of 1989 judgment dated 2^nd March 1993 before N. Kireju J (Page 78, record of appeal). It was against the appellants whereby the respondent claimed general, special and exemplary damages for trespass on the 1^st respondent's access road. They also sought a permanent injunction restraining the appellants from blocking the $1^st$ respondent's access to the Hoima-Kampala road. The 1^st respondent was successful in part and was awarded nominal damages of Uganda shillings $3,000,000/$ = and general damages of Uganda shillings $1,000,000/$ = as well as interest on both awards at court rate from the date of judgment until payment in full and costs.

The $1^{st}$ respondent sought to have the said judgment enforced. On $26^th$ June 1998, the 1^st respondent filed an application for execution seeking to recover a sum of Shs. 7, $682,739/$ = (seven million six hundred eighty-two thousand seven hundred thirty-nine shillings only) from the appellants. The 1st respondent prayed that the sum n be realized by attachment and sale of appellant's moveable property. On the 20^th January 1999, six months after the application for execution, the Registrar issued a warrant of attachment of immoveable property of Plot MII comprising of 43.65 acres developed with a Boarding Primary and Secondary Schools with staff quarters thereon.

On 30^th January 1999, the property was advertised for sale in New Vision Newspaper and on 19^th February 1999, the property was auctioned and sold to the $2^nd$ respondent (Reuman Co. Ltd) despite the attempts by the appellants to stop it.

On 30^th Sept. 1999, the appellants filed Misc. Application No. 1213 of 1999 seeking to set aside/cancel the execution on the following grounds:

- (1) The Registrar issued a warrant of attachment and sale of immoveable property that had not been applied for. - (2) The property was advertised for sale on 30^th January 1999 and sold on 19^th February 1999 before the expiration of the mandatory 30 days.

- (3) The property attached on $9^{th}$ February and sold on $19^{th}$ February was in breach of the installment agreement of which the first installment was due on 27^th February 1999. - (4) The property was sold despite the Registrar order to stop the execution process. - (5) The Registrar was in error to confirm the sale

Opio Aweri, J (as he then was) dismissed the above Miscellaneous Application. It was after the dismissal of that application that the appellants were dissatisfied with the outcome that they filed the appeal in the Court of Appeal. The Court of Appeal dismissed the appeal hence this appeal.

## **Representation**

Mr. Mudawa Geoffrey and Mr. Kyabula represented the appellants. Mr. Nkurunziza Peter represented the respondents.

Both parties through their counsel filed written submissions.

# **Appellant's Submissions**

Counsel for the appellants submitted that the second appellate Court can only scrutinize the evidence on record where it was clear that it had not been subjected to adequate scrutiny by either the trial court or the first appellate court. He relied on **Gouster Enterprises Ltd Vs** Tibebaga SCCA (2004) 2 EA 17.

# Grounds 1& 5

Counsel submitted on grounds 1 & 5 together answering the question (1) whether the learned Justices of the Court of Appeal as a first appellate Court erred in law when they overlooked the illegalities that were manifested in the entire execution process of the decree in Civil Suit No. 131 of 1989.

(2) Whether the learned Justices of the Court of Appeal erred in law as a first appellate Court when they held that the attachment and sale of the appellant's properties under the decree in Civil Suit No. 131 of 1989 before the expiration of 30 days from the date of the advert was lawful.

Counsel submitted that Order 19 now Order 22 Rule 64 of the Civil Procedure Rules provides that a sale of immovable property has only to take place at least 30 days calculated from the date from which the public notice of sale was advertised. He argued that the rule is couched in mandatory terms and does not give Court discretion. He submitted that the property was advertised on 30^th January 1999 and sold on 19^th February 1999 to Reuman Co. Ltd the 2^nd respondent. That it was apparent that the sale was before the expiry of 30 days. He concluded that the sale was contrary to the law. That the Court of Appeal sanctioned the illegality and the property could not pass.

Counsel faulted the learned Justices when they stated that since there was an advert and the essence of the advert was to allow the appellants to salvage their situation but they failed to do so. He argued that if the execution was in compliance with the law that reasoning would stand but it was not in compliance with the law i.e. 30 days' expiry so that argument of the Court of Appeal could not stand.

Counsel further faulted the learned Justices for failure to pronounce themselves on the issue whether the sale took place on 19^th Feb 1999 before the expiry of 30 days as the sale was a public auction. He argued further that the property was sold only after 19 days had expired.

He argued that the advertisement in the New Vision Newspaper of 30^th January (at page 73) of the record of Appeal showed that the sale was to be conducted on 19^th Feb 1999 at 10: 00 am. He submitted that it was a grave error for the Court of Appeal to allow an illegality to stand. He relied on the case of **Makula International Ltd Vs His** Eminence Cardinal Nsubuga and Rev. Fr Dr Kyeyune & Uganda Railways Corporation Civil Application No. 185 of 2007 where Court interalia stated: "it is settled law that higher appellate Courts would not allow an illegality that escaped the eyes of the trial Court to cause undesirable consequences. A trial Judge therefore has a duty to use a judicial microscope to see all those illegalities that may not be ordinarily seen by the eyes of parties including those of their counsel who may not see also. It is settled by the Courts that illegality of an issue is a question of law which can be raised any time or at any stage of the proceedings with or without prior knowledge of the parties."

Counsel also relied on the persuasive authority of **Moses Kamya Vs** Sam Lukwago & Liberty Construction Ltd Misc. Application No. 271 of 2010. He also relied on Court of Appeal Case No. 4 of 1981 Makula International Vs His Eminence Cardinal Nsubuga & Rev. Fr. Dr. Kyeyune which held among others that a Court of law cannot sanction what is illegal and illegality once brought to the attention of Court will override all questions of pleadings including admissions therein.

### Grounds 2 & 6

Counsel faulted the Court of Appeal learned Justices and raised the issues (i) whether the Justices sitting as a first appellate Court erred in law when they failed to evaluate the evidence on record that implicated the 1st respondent as a party to the fraudulent sale of the attached property.

He submitted that when the first respondent applied for execution of the decree in HCCS No. 131 of 1989 it was by way of attachment and sale of moveable property to recover the decretal sum already stated above plus further costs of shillings $50,000/$ = (fifty thousand only). That the application was granted as prayed. However, the Registrar signed an order for attachment of immoveable property.

Counsel in his submissions alleged that the $1^st$ respondent realizing his mistake in his application for execution, connived with some court officers, retrieved the application from the court record and inserted more words using a type writer as an afterthought as hereunder:

"Bibanja to be found on Plot M11 and Plot M12 in Hoima Town at Kikwite with developments thereon to be identified by the plaintiff now 1^st respondent previously on expired lease measuring 26 hectares."

This was done to suit the 1^st respondent's interests. He submitted that if the learned Justices of the Court of Appeal properly evaluated the evidence on record, they would have realized that the warrant of attachment issued was faulty having not been applied for and whatever came through was an illegality. He submitted further that the appellants were not accorded an opportunity to respond to the fresh attachment of the immoveable property since the application they knew of was of moveable property. That failure to nullify the sale caused a miscarriage of justice.

Counsel further submitted that the value of the attached property submitted by Corridor Court Bailiffs and another one submitted by the appellants showed material disparity between the value affixed by the Court Bailiff

That the learned Justices observation was; "that if the attached property consisted of developments described therein, then the value of the attached property declared by the respondents there could have been excess attachment."

He submitted further that that observation ought to have put them on notice that there was excessive attachment which amounted to unjust enrichment on the respondent's side.

## Grounds 3 & 4

Counsel faulted the learned Justices of the Court of Appeal for finding the 1^st respondent not liable for the excess attachment in the execution of the decree in Suit No. 131 of 1989. Counsel also faulted the Justices of Appeal for holding that procedurally, the appellants ought to have sued the court bailiff other than the $1^st$ respondent for excessive attachment.

Counsel quoted what the learned Justices stated as follows; "Be that as it may, there could have been excess attachment if it is true that the *bibanja had a Primary and Secondary school, classrooms, dormitories* and offices, it is the Court Bailiff to account for excessive attachment".

Counsel submitted that the order should have been limited to the property value of the amount claimed in the decree. He argued that there was evidence on record like the valuation report and photographs to prove that there were structures on the Bibanja attached. That the appellants had 65 acres of the Bibanja land,

developed with full-fledged primary and secondary school sitting on different plots.

That the $1^st$ respondent personally applied and misled the Registrar of Court in issuing a warrant of attachment in excess of the value or amount he was seeking to recover for self-enrichment. He argued that the Court Bailiff would be liable if he attached what was not in the warrant of attachment (but from the purported application for execution at page 96 of the record of appeal) all those had been identified by the $1^{st}$ respondent.

Counsel relied on Abdilfah Shrwa Vs Sheikh Mohammed Hay **Ahmed CA No. 1 of 1976**, where the Court of Appeal held among others that...." only property as appear sufficient to satisfy any decree which may be passed in the suit property value of the amount claimed in the suit."

Counsel also relied on Francis Nansio Micah Vs Nuwa Walakira SCCA No. 24 of 1994 which stated; "Following from the provisions of Order 19 Rule 8(2) Rules 10 and 11 (now O. 22) and the contents of the attachment (warrant A) the applicant for execution is involved in the execution process. It is the applicant who put the execution in motion. This has been held to be so by the Kenyan Court of Appeal in Blasio Simunyu Vs Wanraia Sinion (sic) (1982-1988) 1KAB 630, it was stated; "it seems to me though a bailiff is certainly an officer of Courts, he is certainly an agent of the judgment creditor at least for purposes of excess attachment. In my opinion, the decision of this Court in *H. Waiswa* & another *Vs M. Onyango Ochola* & another *CA* 22 of 1993 would not protect the 1^st respondent especially where there's evidence of excess attachment or wrongful establishment at best.... the putting in motion of execution process by the $1^{st}$ applicant, where the applicant points out property to the Court Bailiff his responsibility of liability is even greater as exemplified in **Blasio** Simunyu (supra)."

Counsel affirmed that from the evidence on record, it's clear that the $1^st$ respondent is liable for the excess attachment. He submitted that the learned Justices also erred to conclude that since the bailiff was

not part of the proceedings, there could not be liability on the 1"t respondent

He prayed that the appeal be allowed with costs.

# Respondent's submissions

Counsel for the respondents submitted that at page 27 paragraph 6- 10 of the record of appeal, the learned Justices found that the appellant's bibanja were sold before expiration of 30 days as required by Iaw. That they further held that the Bibanja constituted immoveable property, interalia.

That the learned Justices fell short of stating that the above amounted to an illegality so they correctly did not find that the irregularity in the conduct of sale amounted to an illegality. Counsel argued that Order 22 Rule 64 of the Civil Procedure Rules bars an auction and sale of immoveable property before the expiration of 30 days from the date of advertisement, but does not provide a specific sanction for contravention of the rule by bailiff conducting a sale.

Counsel in his submission relied on Mulla on Code of Civil Procedure 16th edition Volume III. Mulla was discussing Rule 68 of the Indian Civil Procedure Rules relating to execution of decree. J(

He submitted that the Court of Appeal learned Justices relied on the Indian Code of Civil Procedure and made reference to it extensively which empowers auction before the expiration of 3O days and termed the auctioning and sale before expiration an irregularity. Further that it had no substantial injury and could not be set aside because they did not err in law.

# Ground 2 & 6

Counsel submitted that there was no evidence of fraud to the required standard. That after the learned Justices having reevaluated the evidence on record, they agreed with the finding of the trial Judge in execution. The hnding that witnessing registration of a company by a lawyer did not give someone an interest in the company beyond the professional instructions. That, it could not impute fraud on the 1"t respondent.

#### Grounds 3& 4

Counsel submitted that it was the court bailiff who was accountable for the proceeds of excess attachment in execution of the decree. That therefore, the learned Justices did not err. He agreed that the 1^st respondent initiated the execution process when he applied for execution of the decree. However, there was no evidence to show that the $1^st$ respondent went beyond as he was not involved in the valuation of either the attached property nor drawing up and issuing a warrant of attachment.

He relied on the case of **Blasio Simunyu Vs Wanraia Sinion (sic)** (Supra) where he quoted; "Its settled law that the Court Bailiff acts as an agent of the judgment creditor."

He argued that to hold the $1^st$ respondent liable for all irregularities that may have occurred in execution process, his involvement at the different stages ought to be clearly demonstrated in evidence. He further argued that when the $1^st$ respondent informed the bailiff about the property that belonged to the appellants which was not a wrongful act, he did not direct the bailiff to excessively attach the property before the expiry of 30 days as required by law period. He concluded by submitting that the learned Justices of the Court of Appeal did not err when they held that it was the Court Bailiff responsible for excessive attachment and sale of the property.

#### Consideration of the Appeal

This is a second appeal and the duty of a second appellate court was long settled in a vast number of cases of this Court.

In the case of **Buhingiro Vs Uganda SCCA No. 8 of 2014**, it was stated, "it is trite law that as a second appellate court, we are not expected to re-evaluate the evidence or question the concurrent findings of fact by the High Court and Court of Appeal. However, where it is shown that they did not evaluate or reevaluate the evidence or where they are proved to be manifestly wrong on findings of fact, the court is obliged to do so and to ensure that justice is properly and timely served, (emphasis is mine). It is the duty of the first appellate court to rehear the case on appeal by considering all materials which were before the trial Court and makeup its own mind and failure to do so amounts to an error in law. See Kifamunte Henry Vs Uganda (SCCA No. 10 of 1997)

In this appeal, the appellants raised six grounds in their memorandum of appeal as already reproduced above. Both counsel submitted on them in pairs. I will also resolve them as they did.

#### Grounds 1 & 5

The learned Counsel for the appellants argued grounds 1 and 5 together. It is apparent that these grounds rotated around illegalities which marred the entire execution process of the decree in Civil Suit No. 131 of 1989.

The law applicable then was Order 19 of the Civil Procedure Rules which is now Order 22 Rule 64 of the Civil Procedure Rules. For clarity, it provides:

### No sale hereunder shall take place until after expiration of atleast 30 days in the case of immoveable property...... (emphasis is mine) calculated from the date on which the public notice of sale has been advertised as provided in the Rules..."

I accept Counsel for the appellants' submission that the provision is couched in mandatory terms. This involved immoveable property so failure by the learned Justices of the Court of Appeal to re-evaluate the evidence on record to find that there was an illegality sanctioned the same to the detriment of the appellant₃by failing to nullify or set aside the execution. The error in law was apparent. Besides, the advert speaks for itself as it was stated in the New vision of 30^th Jan. 1999 that the auction was to be on $19^{th}$ Feb 1999. Certainly, the 30 days could not have lapsed. There are a number of authorities stressing that; "a court of law cannot sanction what is illegal and illegality once brought to the attention of Court will override all questions of pleadings including admissions made therein. **See** Makula International Ltd Vs His Eminence Cardinal Nsubuga and Rev. Fr. Dr Kyeyune (supra)

I find it strange and unacceptable that despite the learned Justices having found that the Bibanjas were sold before the expiration of 30 days after the advert as required by law and having had the opportunity to peruse the record which had overwhelming evidence failed to iind illegality in the execution and sale. They instead found that it was an irregularity because of their over-reliance on the High Court Judgment without re-evaluating the evidence which they ought to have done.

The submissions of Counsel for the respondents are unacceptable when he stated that Order 22 Rule 64 (previously Order 19) did not provide for a sanction for failure to comply with the law. The wording in Order 22 Rule 64 of the Civil Procedure Rules is so clear. It is couched in mandatory terms,

The fact that Counsel for the respondents submitted that; "the learned Justices of the Court of Appeal relied on the Indian Code of Civil Procedure and made reference to it extensively, which empowers to auction before the expiration of 30 days and called the selling before expiration of time an irregularity was a clear manifestation of misdirection on the part of the learned Justices, to say the least. They failed in their duty as the first appellate Court and so this court had to scrutinize the record for justice to prevail as stated in the Buhingiro case (supra). I

This Country has laws that govern execution of decrees; there was no reason for the learned Justices to apply other jurisdiction laws (Indian Code of Civil Procedure) which amounts to statutes of general application in the absence of specific laws. This is not the case in this case!

It is apparent therefore from the above that the learned Justices erred in law in failing to nullify and or set aside the execution of decree and illegal sale for non-compliance with Order 19 (now Order 22 Rule 64) of the Civil Procedure Rules.

Groundsl&5succeed.

# Grounds 2 & 6

The appellants through their counsel faulted the learned Justices for failing in their duty as the hrst appellate Court to re-evaluate the

evidence on record which clearly implicated the first respondent as a party to the fraudulent attachment and sale of the property in issue.

I had the opportunity to carefully read and examine the record of appeal. It was on record that the 1^st respondent moved court by applying for execution of the decree in HCCS No. 131 of 1989, and the execution was by way of attachment of moveable property to recover the decretal sum of UGX. 7,682,739/= plus costs of $50,000/$ = (fifty thousand only). The application was granted as prayed. However, the Registrar signed an order for attachment of immoveable property and more words had been inserted as follows; "Bibanja to be found on Plot M11 and Plot M12 in Hoima town at Kikwite with developments thereon to be identified by the plaintiff ( $1^{st}$ respondent) previously on expired lease measuring 26 hectares."

On close scrutiny of the application for execution, it is seen clearly that the above quoted words were not there at the time the application was filed. They were just typed on the side. The application could not have been for both moveable and immovable property.

I am alive to the law concerning proof of fraud in civil cases, but this fraud occurred within the trial/prosecution of the execution of decree in Civil Suit No. 131 of 1989 so there is no way particulars of fraud could have been specifically pleaded. It would be superfluous for one to think that in such circumstances, particulars of fraud ought have been pleaded. My view is that since the documents being contested as fraudulent are on court record and the instances of fraud had been identified, they speak for themselves.

It was clearly put in print that it was the $1^{st}$ respondent to identify the properties. The 1^st respondent wanted to enrich himself unjustifiably. The learned Justices therefore erred in law and also in fact when they failed to evaluate that evidence which implicated the $1^st$ respondent in fraud when he caused the change or alteration of the application from moveable to immoveable property.

Counsel for the respondents did not submit on the issue of change or alteration of the application for execution. It was for moveable property initially then later it turned out to be immoveable property

as raised by Counsel for the appellants. Instead, Counsel for the respondents only submitted on the issue of witnessing registration of a Company by counsel for the $1^st$ respondent. I therefore found no merit in Counsel for the respondents' submission as stated above.

Grounds 2 & 6 therefore succeed.

#### Grounds 3 and 4

The contentions on these grounds as reproduced earlier in this judgment were that the learned Justices of the Court of Appeal failed to re-evaluate the evidence on record and as such came to the wrong conclusion / decision that the first respondent was not liable for the excess attachment in execution of the decree in Civil Suit No. 131 of 1989.

There was overwhelming evidence on record which the learned Justices ignored specifically on the purported application for execution by attachment of immoveable property. The glaring evidence was as stated on page 96 of the record. I have already mentioned it in this judgment but specifically, it stated, interalia, as follows:

### ".... plot M11 and Plot M12 in Hoima Town at Kikwite with developments thereon to be identified by the plaintiff (now the first respondent"

There was no dispute that indeed the $1^st$ respondent identified these properties for the bailiff to attach and sell so the argument that the $1^st$ respondent was not involved as counsel for the respondents submitted was not based on evidence and cannot be sustained. He was submitting from the bar. It is not in dispute that the 1^st respondent put in motion the execution process the time he applied for execution and went further and identified these properties.

The case of Francis Nansio Micah Vs Nuwa Walakira (supra) cited as authority by counsel for the appellants is spot on, on this issue. This Court stated, interalia, as follows: - "The applicant for execution is involved in the process. It is the applicant who put the execution in motion."

In my opinion, the Court further stated the decision of this Court in Hannington Waiswa and another Vs Onyango Ochola & another **CA 22 OF 1993** would not protect the $1^{st}$ respondent especially where there is evidence of excess attachment or wrongful establishment at best... the putting in motion of execution process, where the applicant points out property to the Court bailiffs, his responsibility is even *greater as exemplified in Blasio Simunyu (supra)*

I concur with the above stated and I find no merit in the submissions of counsel for the respondents. The evidence on record was so clear and was in favour of the appellants. The advise the learned Justices of the Court of Appeal took to conclude that procedurally, the appellants ought to have sued the Court Bailiff was a misdirection and erroneous in law and caused gross miscarriage of justice. The applicants/appellants filed an application on 26^th September 1999 to set aside execution of the Decree but the High Court dismissed it under Misc. Application No.1213 of 1999 on the basis that the $2^nd$ respondent as bailiff was not qualified to be party to the suit from $\omega$ which the decree arose under Section 35 of the Civil Procedure Act (See page 186 of the Record of Appeal). The advise was misleading because the lower court cannot strike out a party to the application and then the appellate court gives direction of suing the same party in a separate suit. This offends the principle of avoiding multiplicity of causes which is intended in S.35 & 101 of the Civil Procedure Act as the provisions were then.

For avoidance of doubt, I have to restate the duty of the $2^nd$ appellate court as follows:

The $2^{nd}$ appellate court is not expected to re-evaluate the evidence or question the concurrent findings of fact by the High Court and the Court of Appeal. However, where it is shown that they did not evaluate or re-evaluate the evidence or where they are proved manifestly wrong on findings of fact, the court is obliged to do so and to ensure that justice is properly and timely **served** (See Buhingiro Vs Uganda (supra) (emphasis is mine).

This is a case where it was apparent that the learned Justices of the Court of Appeal were manifestly wrong on all grounds as raised by the appellants. There was gross miscarriage of justice. The learned Justices observed for example in respect of excess of attachment by the identification of the properties to be attached that was done by the 1^st respondent, but decided to close their eyes to it and instead justified it by stating that the appellants only had to sue the bailiff when the High Court had already struck him out in an earlier application already stated in this Judgment.

In the result, since all the six grounds have succeeded, the following orders are made:

- $(1)$ The appeal is allowed. - $(2)$ Execution is set aside. - (3) The properties of the appellants on the Bibanja Plot M11 & Plot M12 in Hoima Town at Kikwite with developments thereon be returned to the appellants as prayed. - (4) Costs of this appeal and in courts below granted to the appellants.

Dated at Kampala this 28^th day of Jamery 2022

JUSTICE OF THE SUPREME COURT

# THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA **AT KAMPALA**

(CORAM: Arach-Amoko, Mwondha, Muhanguzi, Tuhaise, Chibita JJ. SC.)

### CIVIL APPEAL NO.11 OF 2018

# **BETWEEN**

- 1. PHILEMON WANDERA 2. HOIMA S. S. SCHOOL 3. BOARD OF GOVERNORS HOIMA SS .................................. AND - 1. YESERO MUGENYI REUMAN &CO. LTD

[Appeal from the judgment and orders of the Court of Appeal dated 1^st June 2018 Civil Appeal No.061/2009 before Kasule, Kiryabwire and Musoke, JJA]

### **JUDGMENT OF TUHAISE, JSC.**

I have had the benefit of reading in draft the lead judgment of Hon Justice Mwondha, JSC.

I agree with her judgment and the orders she has proposed.

Dated at Kampala, this $\frac{28^{\text{th}}}{\text{28}}$ day of <u>Juneau</u> $-2024$ $\gamma \nabla \lambda$ Percy Night Tuhaise

# JUSTICE OF THE SUPREME COURT

### THE REPUBLIC OF UGANDA

### IN THE SUPREME COURT OF UGANDA AT KAMPATA

Corom: Aroch-Amoko, Mwondho, Muhanguzi, Tuhoise, Chibito, JJ. SC

### CIVIT APPEAL NO. 11 OF 2018

- 1. PHILEMON WANDERA - 2. HOrMA S. S SCHOOT - 3. BOARD OF GOVERNORS-HOIMA SENIOR SECONDARY SCHOOL APPELLANTS

### VERSUS

- 1. YESERO MUGENYI REUMAN & CO. LTD - o 2. REUMAN AND CO. tTD RESPONDENTS

(Appeol from the judgment ond orders of the Court of Appeol dated 7't June 2018 Civil Appeol No. 061 of 2009 before Kosule, Kiryabwire, ond Musoke, JJA)

### JUDGMENT OF MUHANGUZI, JSC

I had the benefit of reading in draft the judgment of my learned sister Hon. Lady Justice Faith Mwondha, JSC.

I agree with her analysis, conclusion and orders made. I have nothing more useful to add.

Dated at Kampala this ...?--sl-........ day of ... 2o2Li\

P

a

Ezekiel Muhanguzi JUSTICE OF THE SUPREME COURT

### THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT I(AMPALA

(Coram: Arach-Amoko, Mutondha, Muhanguzi, Tuhaise and Chibita, JJ. S. C)

#### CIVIL APPEAL NO. 11 OF 2018

#### BETWEEN

## 1. PHILEMON WANDERA 2. HOIMA S. S SCHOOL 3. BOARD OF GOVERNORS-HO :::: ::::::::::::::APPELLANTS SENIOR SECONDARY SCHOOL

I

o

o

o

#### AND

1. YESERO MUGENYI 2. RTUMAN AND CO. LTD : :::::: ::: :: ::::: :::::RESPONDENTS )

(Appeal aising from the Judgment of the Court of Appeal in Ciuil Appeal No. ⁶¹ of 2009 dated l,t June, 2O18 (Kasule, Kiryabtuire and Musoke, JJ. A)

#### JUDGMENT OF M. S ARACH-AMOKO JSC

I have had the benefit of reading in draft the Judgment of my learned sister Hon. Justice Faith Mwondha, JSC. I concur with her reasoning and decision that this appeal should be allowed. I also agree w'ith the orders proposed.

As all the other members of the panel agree, this appeal is hereby allowed on the terms as proposed by the learned Justice.

1r Dated at Kampala this....2!. day of ..lrt zoz1']\*

fif\* - r,

M. S. ARACH-AMOKO JUSTICE OF THE SUPREME COURT

# THE REPUBLIC OF UGANDA

#### IN THE SUPREME COURT OF UGANDA AT KAMPALA

(CORAM: ARACH-AMOKO; MWONDHA; MUHANGUZI; TUHAISE; CHIBITA; JJ. S. C.)

#### CIVIL APPEAL NO: 11 OF 2018

#### **BETWEEN**

1. PHILEMON WANDERA 2. HOIMA S. S. SCHOOL **3. BOARD OF GOVERNORS** HOIMA S. S. SCHOOL

**:::::::::::: APPELLANTS**

#### AND

#### 1. YESERO MUGENYI **2. REUMAN & CO. LTD ::::::::::::::: RESPONDENTS**

[Appeal arising from the judgment and orders of the Court of Appeal at Kampala (Kasule, Kiryabwire, Musoke, JJA) in Civil Appeal No. 061 of 2009 dated 1^st June, 2018]

#### JUDGMENT OF CHIBITA, JSC.

I have read the lead judgment of my learned sister, Hon. Justice Faith Mwondha, JSC, in draft, I agree with the conclusion that the appeal having succeeded on all grounds be allowed with costs to the appellants.

Dated at Kampala this .... 28^th ....................................

$B \cap B$

Hon. Justice Mike Chibita JUSTICE OF THE SUPREME COURT