REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA

AT MENGO

(CORAM: ODOKI, CJ; ODER, TSEKOOKO, KAROKORA, AND MULENGA, JJ.S.C.)

CIVIL APPEAL NO. 6 OF 2002

BETWEEN

NURU KAAYA ::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT

AND

CRESCENT TRANSPORTATION LTD :::::::::::::::: RESPONDENT

[Appeal from the judgment of the Court of Appeal at Kampala (Mukasa-Kikonyogo, DCJ.,
Okello and Twinomujuni, JJ.A) dated 3rd August, 2001 in Civil Appeal 37 of 2000]

JUDGMENT OF TSEKOOKO, JSC:

This second appeal arises from the decision of the Court of Appeal which reversed a decision of the
High Court by Okumu-Wengi, J.

The facts giving rise to this appeal are clear. The appellant, Nuru Kaaya, was the plaintiff in the
High Court. The respondent, Crescent Transportation Co. Ltd., was the defendant.

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The appellant imported goods from Indonesia. The goods came by sea up to Mombasa Port in
Kenya. The appellant entered in an agreement with the respondent for the latter to transport those
goods, valued at US$ 33,396, by road from Mombasa to Kampala. A container loaded with the
appellant's goods was entrusted to the respondent in Mombasa to deliver to the appellant in
Kampala. The container was indeed delivered by the respondent in Kampala where the appellant
acknowledged receipt of the container by signing a delivery note. In Kampala the container's seal
was broken in the presence of the officials of Uganda Revenue Authority. The appellant then
discovered that there were fewer bales and fewer gunny bags than what she had imported. An
inspection of the container by the Police suggested that the container had been tampered with and
so the appellant assumed that the container was broken into resulting in the loss of the goods. The
appellant held the respondent liable for the loss. She therefore instituted a civil suit in the High
Court against the respondent claiming for special damages, general damages and costs.

In the pleadings and during the trial the contract of carriage was admitted. The contention of the
respondent was that it delivered all the goods it received in Mombasa for transportation to the
appellant in Kampala.

Four issues were framed for determination. The trial commenced on 20/4/2000 on which date the
appellant testified as PWl. In the course of her cross-examination, it transpired that she did not
have the packaging list of the goods which Mr. Tayebwa, counsel for the respondent wanted to
view in order to cross-examine her on it. The hearing was adjourned to 8/5/2000. On that day a
witness named Patric Mutume (PW2) testified. He was expected to produce the packaging list. He
produced other documents but not the packaging list. After the testimony of Ayitegereize Joy, the

plaintiff's 3rd witness, the appellant through her counsel, Mr Byaruhanga, sought further
adjournment and applied for witness summonses for other witnesses." The matter was adjourned to
26/5/2000. On that day (26/5/2002) Ali Lugudo (PW4) a Government Chemist testified about
evidence of tampering with the container. Because she was unable to get police witnesses, the
appellant closed her case. The case was then adjourned, at the instance of the respondent's counsel,
to 26/6/2000 for hearing the defence. On that day the relevant part of the record of the court
reflects this -

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 "Tayebwa I have a problem. Seek court's indulgence. Wrote to m y client informing them of
hearing date. They instead thought the hearing is tomorrow. I pray for adjournment for
court to accommodate us tomorrow."

Court:- Do you have a copy of letter you wrote to them or their reply?

Tayebwa: Unfortunately I have not come with them. No reply either.

Byaruhanga: "I do not know what to say. Had he consulted me prior I would have
conceded."

Thus although the plaintiffs counsel appeared accommodative, the court was in a different mood.
The record further reads as follows:-

"Court: the defendant has failed on adjourned hearing to proceed with his case. It is

inconceivable that a person can read 23rd when he is informed of 22nd June. I therefore
invoke Order 15 rule 4 of the Civil Procedure Rules and enter judgment for the plaintiff as
prayed with costs."

As there were no submissions by either counsel on the merits of the case the learned judge must
have relied on the prayer in the plaint to give judgment for the plaintiff (the present appellant.)
The respondent appealed against that judgment to the Court of Appeal and listed three
grounds of appeal.

The first ground which is particularly pertinent stated that -

All the three grounds of appeal were upheld by the Court of Appeal which set aside the
judgment of Okumu-Wengi, J.

The Hon. Mr. Justice Twinomujuni, JA. gave the lead judgment with which the Deputy
Chief Justice and the other member of the court concurred. The learned Justice of Appeal
assessed the evidence tendered by the appellant and then concluded that the appellant had
failed to establish her claim. So the court dismissed the suit. The appellant has brought
this appeal based on five grounds of appeal. In my view the success of this appeal
depends largely on the success of the fifth ground. I find it necessary to first consider that
ground which reads as follows.

"5. The Honourable Judges of Appeal wrongly exercised their discretion when
they declined to order that the matter be sent back to the High Court for a retrial
after they had correctly observed that there were injudicious exercises of
discretion that were fatal to the whole trial - and they led to disastrous
consequences."

Mrs. Mulyagonja-Kakooza, counsel for the appellant, made two points to support her
contention that the Court of Appeal should have ordered for a retrial of the case. First she
contended that the court should have ordered a retrial because it found that the decision of
Okumu Wengi, J., refusing the application for adjournment was an injudicious exercise of
discretion. Secondly she contended that the court found that Okumu-Wengi, J., also acted
injudiciously in the manner he entered judgment for the appellant. According to learned
counsel, the Court of Appeal, having concluded that both actions were fatal to the trial
should have ordered for a retrial. She criticised that court for holding that there was no
need for retrial. She relied on R.M. Khemaney Vs Ll. Murlindhare (1960) EA 268 and
Kawoya Joseph Vs Uganda S.Ct Crim. Appeal 50 of 1999 (unreported) to support her
view that a retrial was the proper course. She prayed that we order for a retrial and that in
the event we dismiss the appeal, we should order for each party to bear its own costs.

Mr. Tayebwa, counsel for the respondent, first argued a general point, that the grounds of
appeal as formulated offend the rules of this Court in that the grounds are argumentative
as well as narrative. He asked us to strike out the memorandum of appeal. He based his
objections on Bank of Uganda Vs Transroad Ltd. S.Ct. Civil Appeal 3 of 1997
(unreported) and Adonia Nakudi Vs C.K. Mukasa Ct. Appeal Civil Appeal 2 of 1986)
(1992) 5 KALR 124. Further, Mr Tayebwa, argued that all the grounds of appeal had no
merit and that the appeal should be dismissed.

Concerning the merits of ground five, learned counsel contended that wrong exercise of
discretion by the trial judge did not affect the appellant's case because she had closed her
case. Therefore, counsel submitted, the Court of Appeal was justified in not ordering a
retrial. He argued that even if a retrial was ordered, only defence could give evidence.
Counsel relied on Rule 29 of the Court of Appeal Rules and S. 12 of the Judicature
Statue, 1996, for the view that the Court of Appeal had power to re-evaluate the evidence
on record and form its own conclusions as it did in this case. Counsel relied on Khemaney
Case (supra) for the view that it is undesirable to order a retrial contending that in
ordering a retrial, an appellate court must bear in mind the circumstances of each case.

Mr. Tayebwa must have had in mind Rule 81(1) of the Rules of this Court when he
belatedly raised the objection to the formulation of the grounds of appeal which he
contended were argumentative and narrative. Mrs. Mulyagonja-Kakoza, took objection to
the last point contending that the respondent's counsel required leave of this court in order
to raise that point of objection. She relied on Rule 97(b) in support. With respect to Mrs
Mulyagonja-Kakooza, I think that the provisions of paragraph (b) of rule 97 do not apply
to the type of objection raised by Mr. Tayebwa. Paragraph (b) is concerned with
objections challenging the competence of an appeal and not to technical defect in form of
the memorandum of appeal. Objections to formulation of grounds of appeal may be
raised at anytime up to the time of the hearing of the appeal. Of course, as a good
practice, such objection must be raised early and, this should be done with advance notice
to the other side, to avoid surprise and to reduce delay that may arise from possible
adjournment. I do not think that raising this type of objection belatedly would normally
affect hearing the appeal on merits unless the defect is sufficiently substantial to warrant
that the memorandum be struck out. In my view though the grounds could have been
better formulated, they are not so defective as to justify striking out the Memorandum of
Appeal as a whole. I would overrule the objection.

I return to the merits of ground 5. In the Court of Appeal, Mr. Tayebwa contended in his
written submissions that after the trial judge had refused the adjournment the judge
should have invited the parties to address him on the merits of the suit on the basis of the
evidence and the pleadings available before the judge decided the case. Counsel relied on
Shali's case (supra) and Famous Cycle Agensia Vs. M. R. Karia Sct. Civil Appeal 16 of
1994, among others. Mr. Byaruhanga, for the present respondent, made oral submissions.
On this particular question he argued in effect that there was no sufficient reason shown
in support of the application for adjournment, and therefore, the trial judge was right in
refusing the application for further adjournment. Counsel relied on Habib Vs Rajput
(1960) EA 92.

In the lead judgment, in the Court of Appeal, Twinomujuni, JA, considered two
principles governing the exercise of discretion. The first, with which I agree, is that when
trial courts grant adjournments they (courts) exercise judicial discretion. The second, with
which I also agree, is that an appellate court will normally not interfere with the exercise
of judicial discretion by a lower court unless the lower court failed to exercise the
discretion judiciously. The learned Justice of Appeal relied on Famous Cycle Agencies
case (supra) for these statements. He considered the circumstances of the present case
leading to the decision of Okumu Wengi J. The learned Justice then went on to say -
 "It is generally accepted that the essence of a trial is that both parties should be
heard and except where a party is deliberately dragging the proceedings in a
trial, such a party should not be denied opportunity to present its case. In the
circumstances of this case, I am unable to hold that the learned trial judge
exercised his discretion judiciously. The refusal to grant an adjournment to
the appellant was totally unjustified and occasioned a serious
miscarriage of justice. This court therefore, has a duty to interfere with the
trial judges exercise of discretion to correct the injustice".

I agree that the refusal to grant the adjournment was, on the facts, totally unjustified. On
the facts of this case I am in full agreement with the reasoning and conclusions of the
learned Justice of Appeal in so far as his discussion on the refusal to adjourn the hearing
of the case is concerned.

The learned Justice of Appeal then considered the failure by the learned trial judge to
allow parties to address him before entering judgment and found that such failure was a
serious error which caused injustice. He then concluded -
"The result of these twin injudicious exercise of discretion was fatal to the whole
trial and led to disastrous consequences."

Again on the facts I agree with these conclusions relating to the injudicious exercise of
discretion by the learned judge. The facts show that the appellant was not at fault and
wanted the trial to continue. It is my opinion that as the trial had aborted, the conclusions
reached by the learned Justice of Appeal were sufficient to justify sending the case back
to the trial judge for continuation of the hearing. Here was a typical example of a case
where the principle that justice must not only be done but must be seen to be done had
clearly been violated by the trial court. The issue we are concerned with is a question of
fundamental principle. Public hearings of cases must be conducted according to law. It is
a question of hearing both parties and such hearing requires that parties be given
reasonable opportunity to present their case.

In this case the trial was aborted by the trial judge. The defendant was ready to adduce its
evidence if it was given just one day. Counsel for the plaintiff was clearly not opposed to
the adjournment to the next day. In such a scenario in the absence of defence evidence, I
think that there was insufficient material before the Court of Appeal to enable it or indeed
this court, to reach a sound conclusion. True the plaintiff had closed her case. But since
the defendant had not deliberately elected not to give evidence, the principle of fair
healing enshrined in Article 28(1) of the Constitution would be breached if final judgment
is given, as was given in this case, without receiving the defence evidence.

I think it was not proper that in the total absence of evidence of the respondent, who was
in effect found not at fault, for the Court of Appeal to evaluate evidence of only one side.
The effect of this is to condemn the other party without hearing it. Therefore ground 5
should succeed.

In my opinion these conclusions on this ground disposer of appeal.

I would allow the appeal. I would set aside the judgments of the two Courts below. Since
it is the fault of the court which resulted in the appeal proceedings, I would order that
each party bears its own costs here and in the Court of Appeal. I would order that the
costs in the High Court do abide the conclusion of the trial. I would remit these
proceeding to the trial judge with orders for him or for his successor to continue with the
hearing of the case starting where he stopped, namely, hearing the defence case.

JUDGEMENT OF ODOKI, CJ.

I have had the benefit of reading in draft the judgment prepared by Tsekooko JSC and I
agree with him that this appeal should be allowed and the case remitted back to the High
Court for the hearing to proceed where it prematurely stopped. I concur in the orders for
costs as proposed by Tsekooko JSC.

As the other members of the Court also agree with the judgement and orders proposed by
Tsekooko JSC, there will be judgment and orders in the terms proposed by Tsekooko,
JSC.
 JUDGMENT OF MULENGA JSC

I have read in draft, the judgment prepared by my learned brother Tsekooko JSC. I concur
that the appeal be allowed setting aside both judgments of the courts below and that the
case be remitted to the High Court for completion of the trial by hearing the defence case.

I also agree with the orders he proposes on costs.

JUDGMENT OF KAROKORA
I have had the advantage of reading in draft, the judgment prepared by my learned
brother, Tsekooko JSC, and do agree with him that the appeal should be allowed. I also
agree with the orders he has proposed.

Dated at Mengo, this 12th day March 2003.