THE REPUBLIC OF UGANDA

IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

|Coram: Kasule, Kakuru &Egonda-Ntende JJA]

CIVIL APPEAL NO. 93 OF 2011

[Arising from the High Court of Uganda at Nakawa Civil Suit No. 162 of
2009]

KASHONGOLE GODFREY======================APPELLANT

VERSUS

1. KAFEERO FRANCIS
2. NAKANJAKO
3.NAMULI PROSSY ' ==========RESPONDENTS
4.SSENTONGO BENARD

[On appeal from the Judgment o f the High Court o f Uganda,

(Mwondha J., (as she then was)) o f J 7!h March 2011]

JUDGMENT OF THE COURT

Introduction

1. The .ppellant was the plaintiff in the court below. He brought this action
against the administrators of the estate of the late John Chrysostom
Sentongo, the respondents now. The appellant was seeking orders of the
High Court to direct the respondents to handle over a title of land
comprised in Leasehold Register 1498 Folio 4 at Buwekula Mubende
district together with duly signed transfer and mutation forms for the
same, general damages and costs of the suit. The appellant had contended
that he had purchased the said land from the late John Chrysostom
Sentongo who had passed away before transferring the same to him.

2. The .respondents opposed this action stating that the deceased who was
their father had never sold any portion of his land to the appellant. The
land in question belonged to the children of the deceased and not to the
appellant. The appellant only entered the land in question after the death
of their father. The papers in possession of the appellant were forgeries

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 and had not been executed by their father. They prayed that the suit be
dismissed with costs.

3. The parties filed a joint scheduling memorandum. At the scheduling

conference prior to the trial of the case the parties stated the number and
names of witnesses they intended to call and the documents they intended
to rely on. The court then made this order.

‘In the interest of time counsel are advised to file sworn

statements of their clients. The plaintiff should file by 10th
May 2010 and serve the defendants to file by 24/05/10 and
serve counsel for the plaintiff. The matter is reserved for
cross examination on 25/06/2010 at 10.00am.‘
th
4. On the 25 June 2010 the parties and counsel appeared before the learned
trial judge who noted,

T have not had time to read through the written witness

(sic statements) to facilitate cross examination of the
witness. The Government Analyst Mr Ntalirwe AM
should be issued with hearing summons for them at
9.00am on the 10/09/10.’

5. There is no record of what happened on the 10 June 2010. Subsequently

th
the case was called on the 25 January 2011 and the plaintiff together
with his counsel were absent. The court made this order.

‘That being the case, the defendants counsel is directed to

file written submissions since there is nothing to cross
examine. Counsel for the defendant should file written
submissions by 21/02/11 and the same on the counsel for
the plaintiff by his by 9lh March 2011 and judgment
reserved till 17/03/2011 at 11.00am.’

6. On 17lh March 2011 judgment was delivered by the learned trial judge.
The learned trial judge considered the written statements by the witnesses
for the parties together with the documents that the parties had filed in the
matter and held that the plaintiff had failed to prove his case, dismissing
the same with costs. The appellant being dissatisfied with that judgment
appealed to this court and set forth the following grounds of appeal.

‘l.That the trial Judge erred in law and fact when she
delivered a judgment against the Appellant without
hearing evidence from both sides.

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 2. That the Trial Judge erred in law and fact when she
adopted a foreign and alien procedure of relying on
witness statements in disposing of the case.
3. The trial and disposal of the case occasioned a
miscarriage of justice to the appellant.
4. The Judgment is null and void/

Submissions of Counsel

7. Mr Andrew Kahuma appeared for the appellant while Mr Nathan Osinde

appeared for the respondent. With leave of court both counsel adopted the
written submissions contained in the joint conferencing notes filed by the
parties.

8. Mr Kahuma submitted that what happened in this case was that the judge
ordered the filing of sworn written statements by the intended witnesses
and directed that cross examination was to follow. When the plaintiff and
his advocate did not turn up on the date the case had been set for cross
examination the judge ordered the filing of written submissions and a
date was set for delivery of judgment. The parties complied and filed
written submissions and the court delivered the judgment on the due date.
Counsel for the appellant contends that no trial or hearing of the case
occurred and the case was decided in the absence of any evidence being
adduced in the case. This was contrary to Article 28 (1) of the
Constitution that provides for a fair and public hearing of all matters
before the courts. Section 134 of the Evidence Act provides that the
manner in which witnesses are produced and examined shall be regulated
by law and practice and in the absence of any law by discretion of the
court. Section 137 of the Evidence Act regulates the production and
examination of witnesses. This provision was not complied with by the
trial court. Order 18 rules 4 and 5 of the Civil Procedure Rules elaborate
on the manner of taking of evidence from witnesses. These provisions
were not complied with. Yet the provisions are couched in mandatory
terms and ought to have been complied with.

9. The method that the learned trial judge adopted was not known to the
law. Filing sworn witness statements does not amount to the holding of a
hearing or trial. This occasioned a miscarriage of justice. The resultant
judgment was null and void. Mr Kahuma cited the case of Uganda co­
operative Transport Union Ltd V Roko Construction Ltd Supreme Court
Civil Appeal No.35 of 1995 [1997] KALR 88 in support of his
submissions.

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 10. Mr Osinde, learned counsel for the respondent supported the judgment
below, arguing that the parties had agreed to the procedure adopted by the
judge. Since the plaintiff and his witnesses had not turned up the court
had no choice but proceed to the next stage which was to receive
submissions and write judgment. The court made no error whatsoever.

Analysis

11. All the four grounds of appeal in this case are all elements of one
question on this appeal. The question to be answered on this appeal is
whether or not in the court below the case before it was heard or not. Did
a trial take place or not? Section 25 of the Civil Procedure Act provides,

“The court, after the case has been heard, shall pronounce
judgment, and on that judgment a decree shall follow;
except that—
(a) if the defendant does not enter such appearance as may
be prescribed/ the court may give judgment for the
plaintiff in default;
(b) in cases for which rules have been made under section
41 (2)(k) of the Judicature Act, it shall not be necessary for
the court to hear the case before giving judgment/

12.It is clear from the foregoing provision that judgment can only follow
after the case has been heard. A trial ought to have taken place.

13.Order 18 of the Civil Procedure Rules regulates how trials are conducted.
We shall set it out in part below.

•ORDERXVII1—HEARING OF THE SUIT AND

EXAMINATION OF WITNESSES.
1. Right to begin.
The plaintiff shall have the right to begin unless the
defendant admits the facts alleged by the plaintiff and
contends that either in point of law or on some additional
facts alleged by the defendant the plaintiff is not entitled to
any part of the relief which he or she seeks, in which case
the defendant shall have the right to begin.
2. Statement and production of evidence.
(1) On the day fixed for the hearing of the suit, or on any
other day to which the hearing is adjourned, the party
having the right to begin shall state his or her case and
produce his or her evidence in support of the issues which
he or she is bound to prove.
(2) The other party shall then state his or her case and
produce his or her evidence, if any, and may then address
the court generally on the whole case.

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(3) The party beginning may then reply generally on the
whole case; except that in cases in which evidence is
tendered by the party beginning only he or she shall have
no right to reply.

3. Evidence where several issues.

Where there are several issues, the burden of proving
some of which lies on the other party, the party beginning
may, at his or her option, either produce his or her
evidence on those issues or reserve it by way of answer to
the evidence produced by the other party; and, in the latter
case, the party beginning may produce evidence on those
issues after the other party has produced all his or her
evidence, and the other party may then reply specially on
the evidence so produced by the party beginning; but the
party beginning will then be entitled to reply generally on
the whole case.

4. Witnesses to be examined in open court.

The evidence of thd witnesses in attendance shall be taken
orally in open court in the presence of and under the
personal direction and superintendence of the judge.

5. How evidence to be recorded.

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.

6. Records made in shorthand or by mechanical

means.
Notwithstanding rule 5 of this Order, the evidence given
or any other proceeding at the hearing of any suit may be
recorded in shorthand or by mechanical means, and, if the
parties to the suit agree, the transcript of anything so
recorded shall, if certified by the judge to be correct, be
deemed to be a record of the evidence or other proceeding
for all the purposes of the suit.

7. Summary of evidence in certain cases.

Notwithstanding rule5 of this Order, in all cases before
any court in which the subject matter in dispute or amount
claimed can be valued in money and that value does not
exceed three hundred shillings, it shall be sufficient for the
judge to make in writing a brief summary of the evidence
given before him or her.
 8. Any particular question and answer may be taken
down.
The court may, of its own motion or on the application of
any party or his or her advocate, take down any particular
question and answer, or any objection to any question, if
there appears to be any special reason for so doing.

9. Questions objected to and allowed by court.

Where any question put to a witness is objected to by a
party or his or her advocate, and the court allows the
question to be put, the judge shall take down the question,
the answer, the objection and the name of the person
making it.

10. Remarks on demeanour of witness.

The court may record such remarks as it thinks material
respecting the demeanour of any witness while under
examination.

11. Power to deal with evidence taken before another

judge.
(1) Where a judge is prevented by death, transfer or other
cause from concluding the trial of a suit, his or her
successor may deal with any evidence taken down under
rules 1 to 10 of this Order as if the evidence had been
taken down by him or her or under his or her direction
under those rules, and may proceed with the suit from the
stage at which his or her predecessor left it.
(2) The provisions of sub rule (1) of this rule shall, so far
as they are applicable, be deemed to apply to evidence
taken in a suit transferred under section 18 of the Act/

14. The foregoing provisions envision an oral hearing with witnesses being
called in person and examined by the parties. Provision is made for proof
of certain facts by way of sworn statements or affidavits. This is Order 19
Rule 1 of the Civil Procedure Rules which states,

‘Any court may at any time for sufficient reason order that
any particular fact may be proved by affidavit, or that the
affidavit of any witness may be read at the hearing, on
such conditions as the court thinks reasonable; except that
where it appears to the court that either party bona fide
desires the production of a witness for cross-examination
and that such witness can be produced, an order shall not
be made authorising the evidence of that witness to be
given by affidavit/

15. The court is authorised to order particular facts to be proved by affidavits

but where it appears that cross examination will be necessary no order
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 shall be made authorising evidence to be given by way of affidavits. It
cannot be asserted that the procedure adopted in the court below in this
case was in compliance with Order 19 rule 1 of the Civil Procedure
Rules.

16. Neither can it be asserted that the procedure adopted in the court below
followed what is prescribed in order 18 of the Civil Procedure Rules. No
witnesses were called. No hearing took place. The parties filed sworn
witness statements which the learned judge took as evidence in the case
plus annexures to the pleadings or documents that the parties had filed
and that formed the basis upon which the judgment was pronounced.

17. We are aware that a practice has developed in some divisions of the High
Court of Uganda in which witness statements are filed before the hearing
of the case but such witness statements must be adopted at the hearing of
the case by the witnesses in question in person and such a statement is
taken to form the examination in chief of that witness’s evidence with
cross examination following as appropriate.

18. We approve of efforts taken to develop procedures that expedite the

hearing and determination of cases but such procedures must be
consistent with the existing law and must not be in conflict with such
existing law.

19. What happened in the court below in this case was that there was simply
no trial or hearing of the case. The order to file witness statements was
made on the day the case was fixed for a scheduling conference.
Scheduling conference is governed by Order 12 and rule 1 thereof states
its purpose as,

'The court shall hold a scheduling conference to sort out

points of agreement and disagreement, the possibility of
mediation, arbitration and any other form of settlement...’.

20. A scheduling hearing is a preliminary step prior to the holding of the trial
of the case.

21. Though witness statements had been filed, following the orders made at
the scheduling conference, no hearing took place at which such witness
statements would have been admitted into evidence as examination in
chief. Cross examination and re examination would have followed if
necessary. The initial date of hearing of the case was 25th June 2010, even
though the learned trial judge stated that this was for cross examination.

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 In accordance with our rules of procedure this was the day for hearing.
The court was not ready and it adjourned the hearing to 10lh September
2010. On that day it is not known what happened. The case was never
called.

22.Subsequently the case was fixed for hearing on 25 January 2011 and on
that day the plaintiff and his counsel were absent. The learned trial judge
then ordered that written submissions be filed. This order was premature.
No trial had taken place thus far. What ought to have happened, if the
court was satisfied that the plaintiff was aware of the hearing date, the
court ought to have dismissed the case under Order 9 rule 22 of the Civil
Procedure Rules, which states,

‘22. Procedure when defendant only appears.

Where the defendant appears, and the plaintiff does not
appear, when the suit is called on for hearing, the court
shall make an order that the suit be dismissed, unless the
defendant admits the claim, or part of it, in which case the
court shall pass a decree against the defendant upon such
admission, and. where part only of the claim has been
admitted, shall dismiss the suit so far as it relates to the
remainder.’

Decision

23. We have no alternative but to allow this appeal, set aside the judgment of
the court below and direct that a trial be held. We so order.

24. As to the costs of this appeal in the circumstances of this case we order
that they abide the outcome of the trial in the High Court.

Dated signed and delivered at Kampala this )bclay of 2017

Justice of Appeal

Justice of Appeal

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