[2024] UGHC 1093

### **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT FORTPORTAL CIVIL APPEAL NO.033 OF 2022**

*(Arising from the judgment and orders in Civil Suit No. 09 of 2014 in the Chief Magistrate's Court of Fort Portal at Fort Portal).*

# **1. WARID TELECOM UGANDA LIMITED**

# **2. BUSINGE IBRAHIM KASUKALI ::::::::::::::: APPELLANTS**

#### **VERSUS**

**ISINGOMA BEN ::::::::::::: RESPONDENT**

#### **BEFORE: HON. MR. JUSTICE VINCENT EMMY MUGABO**

#### **JUDGEMENT**

#### **Introduction**

This is an appeal against the judgment and orders of His Worship Kaggwa John Francis, the then Chief Magistrate of the Chief Magistrate's Court of Fort Portal at Fort Portal delivered on the 28th day of February 2020 in Civil Suit No. 232 of 2012, in which judgement was entered for the respondent.

#### **Background**

The respondent filed Civil Suit No. 232 of 2012 against the appellants for negligence seeking special and general damages, interest thereon and costs of the suit.

The respondent's claim against the appellants is that on the 2nd of June 2021, the 2nd appellant, an employee and/or servant of the 1st appellant, negligently drove motor vehicle registration No. UAK 930E, belonging to the 1st defendant, along Booma Road near Fort Portal Police Station, and rammed into the respondent's motorcycle registration No. UBO 938, causing damages to the motorcycle and injuries to the respondent.

In their joint written statement of defence, the appellants denied the respondent's claims and stated that the said accident was a result of the respondent's contributory negligence.

When the matter came up for hearing on 18th May 2018, the respondent and his counsel were present while the appellants were absent. Counsel for the respondent made a prayer for the court to consider the plaintiff's evidence on record and make a decision.

In his judgment delivered on the 28th of February 2020, the trial magistrate held that the 2nd defendant negligently drove the said motor vehicle, thereby causing an accident that resulted in injuries to the respondent and damage to his motorcycle. The trial magistrate further awarded UGX. 15,000,000 in general damages, UGX, 8,681,000 in special damages, interest at 15% per annum on general damages, and costs of the suit against the appellants.

Being dissatisfied with the whole judgment and orders of the trial magistrate, the appellants filed this appeal on the following grounds:

- 1. The learned trial magistrate erred in law and fact when he dismissed Misc. Application No. 77 of 2018 seeking to reopen the case for the appellants thereby occasioning a miscarriage of justice. - 2. The learned trial magistrate erred in law and fact when he came to a finding that the appellants did not file a witness statement when in fact the appellants had a witness statement on the court the record. - 3. The learned trial magistrate erred in law and fact when awarded **UGX. 15,000,000/= (Uganda Shillings fifteen million only)** in general damages to the respondent which is excessive in all respects. - 4. The learned trial magistrate erred in law and fact by awarding special damages of **UGX. 8,681,000/= (Uganda shillings eight million six hundred and eighty-one thousand only)** which was not specifically proved. - 5. The learned trial magistrate erred in law and fact in failing to evaluate the evidence on record thereby occasioning a miscarriage of justice.

#### **Representation and Hearing**

*M/S Katende, Ssempebwa & Co. Advocates* represented the Appellants while M/S *Ahabwe James & Co. Advocates* represented the respondent. Both counsel filed written submissions to argue the appeal, which I have taken into account in this judgement.

#### **Duty of the First Appellate Court**

This being a first appeal, this court is under a duty to reappraise the evidence, subject it to exhaustive scrutiny and draw its own inferences of fact, to reach its independent conclusion as to whether the decision of the trial court can be sustained. This duty is well explained in the case of *Father Nanensio Begumisa and three others v. Eric Tiberaga SCCA 17 of 2000* where the court held thus:

*"It is a well-settled principle that on a first appeal, the parties are entitled to obtain from the appeal court its own decision on issues of fact as well as of law. Although in a case of conflicting evidence, the appeal court has to make due allowance for the fact that it has neither seen nor heard the witnesses, it must weigh the conflicting evidence and draw its own inference and conclusions***."**

It is not the function of a first appellate court to merely scrutinize the evidence to see if there is some evidence to support the lower court's finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the trial court's findings should be supported. In doing so, the court should make allowance for the fact that the trial court has had the advantage of

## hearing and seeing the witnesses *(see: Peters v. Sunday Post [1958] E. A 424).*

Against this background, I now re-evaluate the evidence presented at trial against the appellants' grounds of appeal.

### **Consideration by Court**

Before I delve into the merits of the grounds of this appeal, I will first address the preliminary objections raised by counsel for the respondent. It is the submission of counsel for the respondent that the appellants paid all the damages as decreed by the trial magistrate save for the costs of the suit.

Firstly, counsel for the respondent argued that in their memorandum of appeal, the appellants seem to be appealing against Misc. Application No. 77 of 2018 and Civil Suit No. 232 of 2012 in the same appeal yet the two decisions were decided at different times.

Secondly, counsel for the respondent argued that the instant appeal was filed out of time. Counsel argues that the appellants were supposed to have filed the instant appeal within 30 days from the date of the decree or orders in Civil Suit No. 232 of 2012 in accordance with section 79 of the Civil Procedure Act, yet the instant appeal was filed after a year.

Thirdly, counsel for the respondent argued that the appeal is vexatious and an abuse of the court process to the extent that the appellants are appealing a decision out of *ex parte* proceedings.

In his submissions in rejoinder, counsel for the appellants argued that there is no law the appellants have breached in drafting their grounds of appeal arising from the decisions of the trial court in both Misc. application No. 77 of 2018 and Civil suit No. 232 of 2012.

Counsel for the appellants argued that the appeal was properly before this court and there were clear points of law of the fact that needed the determination of this court in an appellate capacity and therefore the appeal is not frivolous.

On the issue of filing out of time, counsel for the respondent argued that the trial magistrate delivered his judgement in Civil Suit No. 232 of 2012 on the 28th of February 2020 and counsel for the appellants filed a letter requesting for the decree and typed a record of proceedings on the 13th of March 2020.

Counsel for the appellants argued that in computing the period of limitation, time taken by the court to make a copy of the decree or order appealed against and proceedings has to be taken into account.

Counsel for the appellants also argued that the defendant had never seen the record of the lower court and filed its memorandum of appeal without perusal of the record of the appeal.

Counsel for the appellants argued that the appeal was not filed out of time since the appellants filed a letter requesting the typed record of proceedings and have never received the same up to date.

On whether the appellants could appeal against the *ex parte* judgement, counsel for the appellants cited section 67 of the Civil Procedure Act which provides that appeal may lie from an original decree passed *ex parte*.

### **Court's Analysis of Preliminary Objections**

In determining the preliminary objections raised by counsel for the respondent, I will first deal with whether the instant appeal was filed out of time.

Section 79 of the Civil Procedure Act provides that:

# *"(1) Except as otherwise specifically provided in any other law, every appeal shall be entered—*

*(a)within thirty days of the date of the decree or order of the court; or (b)………………………..,*

*as the case may be, appealed against; but the appellate court may for good cause admit an appeal though the period of limitation prescribed by this section has elapsed.*

*(2)In computing the period of limitation prescribed by this section, the time taken by the court or the registrar in making a copy of the decree or order appealed against and of the proceedings upon which it is founded shall be excluded."*

In the instant case, the decree being appealed against was handed down on the 28th of February 2020, and the memorandum of appeal was filed 26th of September 2022, more than 2 years from the date of the decree.

Counsel argues that even though the memorandum of appeal was filed out of time, counsel for the appellant had written to the trial court, in a letter dated 13th March 2020, requesting for the certified copy of proceedings and judgement, and therefore the time that was taken to prepare that record of proceedings should be taken into account when computing the period of limitation in accordance with section 79(2) of the Civil procedure Act.

I have had the benefit of seeing the letter from the appellants' counsel dated 13th of March 2020 requesting a typed copy of the judgement and typed proceedings of the trial court. Although there is a court decree which was extracted on the 8th of September 2020 and a court judgement certified on the 28th of July 2020, the typed record of proceedings of the trial court forwarded to this court is not certified, and therefore, it is hard to tell when it was made readily available to the appellant in this case.

Nonetheless, counsel for the appellant ought to have been vigilant and actively followed up with the lower court to ensure that the typed record of proceedings is provided on time. There is nothing to suggest that counsel for the appellant pursued the matter with the lower court after notifying it of the intention to appeal. Merely writing to the trial court to request a typed record of proceedings is not sufficient. A prudent and diligent advocate must follow up to ensure the record is provided on time. Although the trial court is responsible for preparing the record, it is also the advocate's or litigant's duty to follow up, pay the requisite charges for the typed record or other necessary documents, and promptly collect the record once it is ready.

However, since the record of proceedings is not certified, and it is unclear when it was made available, coupled with evidence of a letter showing that the appellant requested the typed record of proceedings, the instant application is not barred by limitation. Consequently, this appeal is properly before this court pursuant to Section 79(2) of the Civil Procedure Act.

The other preliminary objection is on the ground one of this appeal which relates to Misc. Application No. 77 of 2018. In that miscellaneous application, the defendants, now the appellants, had sought to reopen their case following the trial court order for the plaintiff/appellant to proceed ex parte.

I find the first ground of appeal problematic for two reasons. First, it contravenes Order 43 Rule 1(2) of the Civil Procedure Rules, which requires grounds of appeal to be concise and to specifically state the objections to the decree being appealed. Second, it is procedurally improper to combine substantive grounds of appeal against the decree with those arising from a miscellaneous application, particularly when the appellant had the opportunity to seek leave of court to appeal the orders made in that application. Counsel ought to have confined the present appeal to the court's findings in the main suit, including the order for ex parte proceedings, rather than introducing grounds relating to Miscellaneous Application No. 77 of 2018 in an appeal against the judgment and decree in Civil Suit No. 232 of 2012.

Order 43 Rule 1 of the Civil Procedure Rules, which governs Appeals to the High Court, provides that:

> *"The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative; and the grounds shall be numbered consecutively."*

Ground one does not point to any trial magistrate's specific error in law or fact. It only makes a vague and general assertion that by dismissing the Misc. Application No. 77 of 2018, the trial magistrate erred without specifying which point of law or fact that was erred. Consequently, ground 1 of the appeal is struck off.

The same reasoning applies to ground five of the appeal. Ground 5 of the appeal is equally struck out.

The third preliminary objection is that the instant appeal is vexatious and abuse of the court to the extent that it challenges an *ex parte* decree in Civil Suit No. 232 of 2012. It is the argument of counsel for the respondent that the appellants do not have locus to appeal an *ex parte* judgement.

Section 67 of the Civil Procedure Rules provides that:

#### *"An appeal may lie from an original decree passed ex parte."*

The import of this provision of the law is that a defendant who is aggrieved by an *ex parte* decree of the court may exercise his unrestricted right to appeal or may proceed to apply to the court by which the decree was passed for an order to set it aside under Order 9 Rules 12 and 27 of the Civil Procedure Rules.

Therefore, the appellants have locus to appeal against an *ex parte* decree, and the instant appeal is properly before this court.

Therefore, the 1st and 3rd preliminary objections raised by counsel for the respondents are overruled. The 2nd preliminary objection is upheld.

I will proceed to determine the merits of the remaining grounds of appeal.

#### **Ground 2**

Submitting on ground 2 of the appeal, counsel for the appellants argued that on the 24th September 2018, the 2nd appellant's witness statement was duly filed and served on the respondent herein and this was brought to the attention of the trial court.

Counsel argued that it was an error for the trial magistrate to find that there was no witness statement on record and therefore the suit should be sent back for retrial.

On the other hand, counsel for the respondents argued that the trial magistrate lawfully entered an *ex parte* order against the appellants and that the filing or not of the witness statement does not pose any challenge the *ex parte* order against the appellants.

Counsel argued that what is important is that an *ex parte* judgment was entered against the appellants and all the appellants' submissions seeking to challenge the procedure of adopting the respondent's evidence on court record are irrelevant.

#### **Court's Analysis of Ground 1.**

I have perused through the entire record of the trial court and addressed my mind to the submissions of counsel and procedure on *ex parte* proceedings and admission of evidence by witness statements.

In the present case, the central issue is not whether the appellants filed their witness statements in the trial court before the court delivered an *ex parte* judgment but rather what evidence the trial court relied upon to pass its decree. Although counsel for the appellants briefly mentioned the matter, and the respondent's counsel had an opportunity to respond, the critical issue remains the trial magistrate's reliance on evidence that was neither taken down nor recorded by the court.

The trial court record shows that on the 18th of May 2018, when the matter came up for hearing, only counsel for the respondent and the respondent appeared in court. The appellants and their counsel were absent.

Counsel for the respondent then informed the court that he filed the respondent's witness statement and served it on counsel for the appellant. Counsel for the respondent then moved the trial court to **"consider the plaintiff's evidence on record and make a decision."**

The trial magistrate then ruled that:

# *"The court has heard the submissions of counsel for the plaintiff. It will consider the evidence on record and make a decision. The matter was adjourned to 8/6/2018 for written submissions."*

The trial court record does not show where the witness statement was identified by the plaintiff and admitted as the plaintiff's evidence in chief. Neither were the annexures to the respondent's witness statements formerly tendered in and marked as the respondent's exhibits.

The question then is: What evidence did the trial court consider to make a decision?

Order 18 Rule 5 of the Civil Procedure Rules provides how evidence is recorded in court. The rule provides the following:

*"The evidence of each witness shall be taken down in writing by or in the presence and under the personal direction and superintendence of the judge, not ordinarily in the form of question and answer but in that of a narrative, and when completed shall be signed by the judge."*

The Civil Procedure (Amendment) Rules 2019 introduced Rule 5A of Order 18 to provide for the use of witness statements as an alternative to oral evidence of a witness. Order 18 Rule 5A (2) provides that:

### *"The witness statement shall be formally tendered as evidence in chief of the witness after the witness has appeared in court and taken oath."*

In the case of *Ongwen Anthony & Another v. Ocaya Micheal HC Civil Appeal No. 12 of 2017*, Mubiru, J. while quoting *the U. K Chancery Division Guide, 2016* defined a witness statement as:

## *"A written statement signed by a person which contains the evidence which that person would be allowed to give orally."*

It is trite that a witness statement becomes evidence in chief after it has been properly identified by the witness on oath and adopted by the court, and any annexures to it must also be identified, tendered in admitted and properly marked as exhibits **(***see also Ongwen Anthony & Another v. Ocaya Micheal (supra).*

A witness statement, though part of the court record, does not constitute evidence-in-chief until it is formally identified by the witness under oath and adopted by the court. Similarly, annexures referenced in a witness statement are not considered exhibits until they are tendered, admitted, and properly marked by the trial court.

In the instance case, the trial magistrate proceeded to determine the matter without any evidence on the court record. Since on the 18th of May 2018, the day of the hearing, the defendants did not appear, the court ought to have proceeded *ex parte*. The trial magistrate ought to have asked the plaintiff witness under oath to identify his witness statement and then adopt the statement and also formerly admit annexures to the statement as exhibits.

It was materially irregular for the trial court to proceed with and determine the matter by acting on a witness statement that was not formally tendered as evidence in chief of the witness. Simply put, there is no evidence on the trial court record.

In these circumstances, that irregularity renders the entire judgment and decree of the trial court a nullity.

Therefore, there is no evidence for this court to re-evaluate to reach a just conclusion without causing a miscarriage of justice. In the premises, this court orders a retrial.

Resultantly, for the reasons given above, this appeal succeeds. The judgement and decree of the trial court in Civil suit No. 232 of 2012 are hereby declared a nullity and set aside.

Since the irregularities are attributed to the trial magistrate, each party to this appeal shall bear its own costs in this court and the court below.

The Deputy Registrar shall send back the trial court's file for a retrial.

It is so ordered.

Dated at Fort Portal this 28th day of November 2024

**Vincent Emmy Mugabo**

**Judge.**