Nuru Kaaya v Crescent Transportation Ltd (Civil Appeal No. 6 of 2002) [2003] UGSC 65 (12 March 2003)

\ REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT MENGO (CORAM: ODOKI, CJ; ODER, TSEKOOKO, KAROKORA, AND MULENGA, JJ.S.C.) CIVfu APPEAL NO. 6 OT 2OO2 E]ETWEEN NURU KAAYA APPELLANT AND CRESCENT TRANSPORTAT]ON LTD : : : : : : : : :: : : : : : : RtrSPONDENT lAppeal front the judgment of the Court of Appeal at Karnpala (Mukasa-Kikonyogo, DC)J.. Okello and TutinomttjunL J,l.A) dated 3d Attgtttst, 2Oa.l irt (:it;il Appeal 37 of 20ool JUDGMENT OF This second appeal arises from the decision of the Court of Appeal rvhich reversed a decision of the i{igh Court by Okumu-Wen$, J. 'lhe facts giving rise to this appeal are cle.r'r'. The appellant. Nuru Kaaga, was the plaintiff in the High Court. 'he respondent, Crescenr Transportation Co. Ltd. ' was the defendant. 1 / , t The appellant imported goods from Indonesia' The goods came b1, sea up to Mombasa Port in Kenya. The appellant entered in an agreement with the respondent for the iatter to transport those goods, valued at US$ 33,396, by road from Mombasa to Kampala. A container ioaded with the appellant's goods was entrusted to ttre respondent in Mombasa to deliver to the appellant in Kampala. The container was indeed delivered by the respondent in Kampala v,'here the appellant acknowledged receipt of the container by signing a delivery note. In Kampala the container's seal rvas broken in the presence of the officials of Uganda Revenue Authoritl'. The appellant then discovered that there ruere fewer bales and fewer gunn-v 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 carri"rge rvas admitted. The contention of the respondent was that it delivered all the goods it received in Mombasa for transportation to the appellant in Kampala o Four issues were framed for determination. The tr-ial commenced on 20 /4|2OOO 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 vieu' in order to cross-examile her on it. The hearing was adjourned to 8l5I2OOO. On that day a witness named Patric Mutume (PW2) testified. He u'as expected to produce the packaging list. He produced other documents but not the packaging list. After the testimony of Ayitegereize Jo1,, che plaintiffs 3,.d witness, the appellant through her counsel, Mr Bl.aruhanga, sought further adjournment and applied for witness summonses for other rvitnesses." The matter was adjourned to 261512000. On that day (261512OO2) A1i Lugudo (PW4) a Government Chemist testified about evidence of tampering u,ith the container. Because she was unable to get police u'itnesses, the appellant closed her case. The case was then adjourned, at the instance of the respondent's counsel, to 26 l6l2OOO for hearing the defence. On that da1' the relerant part of the record of the court reflects this - "Tagebuta I haue a problem. Seek court's indulgence. Wrote to mg client infonning tlrcm oJ heaing date. Theg instead thought the heaing is tomorrotu. I prag -fo, adjournmert for court to ctccommodate us tomorrot-u." .1 Court:- Do you haue a copg of letter you u)rote to them or tleir replg? Tauebwg; IJnforhtnately I haue not come uith them. No reply either. B artthan a : "I do not knou uhat to say. Had he consulted me pior I utottld haue conceded." Thus although the plaintiff s counsel accommodative, the court was in a different mood further reads as follows:- appeared The record "Court: the defendant has failed on adjourned hearing to proceed uith his c@se. It is inconceioable that d person can read 23'd uhen he is inforrned of 27d June. I therefore inuoke Order 75 rule 4 of the Civil Procedure Rules and enter judgment for the plaintiff as praged 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.) 4 't The respondent appealed against that judgment to the Ccurt of Appeal and listed three grounds of appeal' The first ground rvhich is particularll- pertinent stated that - "The leanted trial judge utronglg exercised his discretion uhen he refused to grant an adiourrtntent to enable the appelldnt co,ll its uitness and proceeded to immediatelg eflter iudgment for the respondent for UD$ 58,396." A11 the three grounds of appeal were upheld by the Court of Appeal rvhich set aside the judgment of Okumu-Wengi' J' TheHon.Mr.JusticeTrvinomujuni,JA'gavethelead judgment r,r'ith rvhich 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 appetlant 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 necessarl'to hrst consider that ground rvhich reads as follor,l's. "5. The Honourable Judges of Appeal wrongly exercised their discretion when they declined to order that the matter be sent back to the High 5 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. Mul_vagonja-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. Secondll- 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 th.at both actions urere fatal to the trial should have ordered for a retrial. She criticised that court for holding that there was no need for retrial. She relieci on R,M. Khemaneg Vs Ll. Murlindhare (1960) 8A268 and Kauoga Joseph Vs Ugand.a S.Ct Crim. Appeal 50 of 1999 (unreported) to support trer vie',v that a retrial u'as the proper course. She prayed that we order for a retrial and that in the event we dismiss the appeal, rve should order for each partl' to bear its orvn costs. Mr. Ta,r'ebu'a, counsel for the respondent, first argued a general point, that the grounds of appeal as formulated offend 6 tl.re 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 l9)7 (unreported\ and Adonia Nckudi Vs C.K. Mukasa Ct. Appeal Ciuil Appeal 2 of 7986) (1992) SKALR 124. Further, Mr Ta.vebr,va, argued that all the grounds of appeal had no merit and that the appeal should be dismissed. Concerning the merits of ground five, leamed counsel contended that wrong exercise of discretion b1' 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 u.as ordered, onll' 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 por,"'er to re-evaluate the evidence on record and form its orvn conclusions as it did in this case. Counsel relied on Khemaneg Case (supra) for the view that it is undesirable to order a retrial contending that in ordering a retriai, an appellate court must bear in mind the circumstances of e,rch CASC Mr. Taveb'rl,'a must have had in mind Rule 81(l) of the Rules of this Court when he belatedly raised the objection to the 7 formulation of the grounds of appeal which he contended were argumentative and narrative. Mrs. Mulyagonja-Kakoza, t'ro.k 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 Mulyagonla-Kakooza, I think that the provisions of paragraph (b) of rule 97 do not apply to the type of objection raised b1 Mr. Tay'ebri'a. 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 ma1' be raised at an-vtime 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 dela1' that may arise from possible adjournment. I do not think that raising this t1'pe of objection belatedly would normally affect hearing the appeal on merits unless the defect is sufficiently substantial to \r'arrant that the memorandum be struck out. In m1' vierv though the grounds could have been better formulated, the1.' are not so defective as to justil-v striking out the Memorandum of Appeat as a whole. I rvould overrule the objection. I return to the merits of gr-ound 5. In the Court of Appeal, Mr. Tal,ebrva contended in his written submissions that after the 8 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 Shalib case (supra) and Fannous Cycle Agensia Vs. M. R. Karia Sct. Ciuil Appeal 76 of 7994, among others. Mr. Byaruhanga, for the present respondent, made oral submissions. On this particular question he argued in effect that there \\/as no sufficient reason shown in support of the application for adjournment, and therefore, the trial judge rvas right in refusing the application for further adjournment. Counsel relied on Hqbib Vs Rajput (1960) EA92. In the lead judgment, in the Court of Appeal, Twinomujuni, JA, considered tw'o principles governing the exercise of discretion. The first, u.ith rvhich I agree, is that rvhen trial courts grant adjournments they (courts) exercise judicial discretion. The second, with which I also agree, is that an appellate court will normall_v not interfere with the exercise of judicial discretion b1.' a lower court unless the lower court lailed to exercise the discretion judiciousll'. The learned Justice of Appeal relied on Fannous Cgcle Agenctes 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 - 9 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. Fie then concluded - " The result of these tuin iniudicious exercist- of discretion uta.s fatal to the uhole trial and led to disastrous cons equenc e s. " 10 "It is generallg accepted that the essence of a trial is that both parties should be heard and except uthere a partg is deliberatelg dragging the proceedings in a trial, such a Pdrtg should not be denied opportunitg to present its case, In the circurnstances of this case, I am unable to Iaold that the learned trial judge exercised his discretion judiciouslg. The refusal to grant an adjournment to the appellant u)cls totallg unjustified and occasioned ot serious miscarriage of justice. This court therefore, has a dutg to interfere utith the trial iudges exercise of discretion to correct the iniustice". I agree that the refusal to grant the adjournment $'as, on 'he facts, totall,r' unlustified. On the facts of this case I am in full agreement u'ith 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. Again on the facts I agree u'ith these conclusions relating to the injudicious exercise of discretion by the learned judge. The facts shou' 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 b1, 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 rypical example of a case r,l'here 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 larv. It is a question of hearing both parties and such hearing requires that parties be given reasonable opportunitl' 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 rvas given just one day. Counsel for the plaintiff was clearly not opposed to the adjournment to the next da.u-. In such a scenario in the absence of defence evidence, I think that there rvas 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 5s6:ing enshrined in Articte 28(1) of the Constitution rvould be breached if final judgment is given, as was given in this case, vvithout receiving the defence evidence. 11 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. I rvould allou, the appeal. I would set aside the judgments of the two Courts below. Since it is the fault of the court u'hich resulted in the appeal proceedings, I rvould order that each part_v 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 r.he trial judge rvith orders for him or for his successor to contirlue rvith the hearing of the case starting where he stopped, namell', hearing the defence case. Deliuered at Mengo this day 1 2 l)\ of nr-l ,09. a ':(. J,'W. N. Tsekooko JUSTICE OF THE SUPREME COT]RT. L2 ln m1- opinion these conclusions on this ground disposes of appeal. \ (Coram: NURU KAAYA AND CRESCENT TRANSPORTATION LTD THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT MENGO ODOKI, GJ, ODER, TSEKOOKO, KAROKORA AND MULENGA,JJSC) CIVIL APPEAL NO. 6 OF 2OO2 BETWEEN APPELLANT RESPONDENT (Appeal from the judgement of the Court of Appeat at Kampala (Mukasa-Kikonyogo, DCJ, Okello and Twinomujuni, JJA) dated i'd August 2001 in Civil Appeal No. 37 of 2000) 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. raf 2003 t-( day of . ... ,A^-L.L i?fl*this /4h' / \ -'...'. B J o#ki CHIEF JUSTICE (Appeal from the judgment of the Coutt of Appeal at Kampala (Mukasa- Kikonyogo, DCJ Okeio and Twinomuiuni, JJ.A) dated 3'd August, 2001 in Civil Appeal 37 of 2000) IN THE SUPREME COURT OF UGANDA AT MENGO CORUIVI, (ODOKI,CJ, ODER, TSEKOOKO, KAROKORA AND tVULENGA, JJSC) Civil APPeal No. 6 of 2002 BETWEEN NURU KAAYA APPELLANT and CRESCENT TRANSPORTATION LTD RESPONDENT 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 Hrgh Court for completion of the trial by hearing the defence case. I also agree with the orders he proposes on costs DATED at tVengo tnis ... [../;, day or /! i. e i. i. 2003 I ct Lq ) J N lVulenga JUSTICE OF THE SUPREME COURT I t ( IN THE REPUBLIC OF UGANDA IN I'HE STIPREME COT]RT OF TIGANDA AT IIIENGO, KAMPALA K'Ott,ANl ODOKI, CJ: OI)ER,1'SI|KOOKO, KAITOKORA' AND bl I t l. I' N ( ; A .l.l. S.(:.) (]I\'IL .\PPEAL NO.6 OF 2OO2 NL]RU KAYA APPELLANT AND CRESCENI' TRANSPORTATION LTD RESPONDENT l,lppaol /ront tha deci.sion o./ thc ()ourt ol Appeal at Kampala, (!rl u ku sa - K i k onyogo, I )( ), l, () kc I I o and'l'w i n o ntui un i, .l.l. A 1 tlutt:l 3''t Alttr1usr, 2001 in Civil Appeal No.37 o.l 2000 l. .ltJDCM[,NT OF KAROKORA I have had the advantage ofreading in draft, thejudgrnent prepared by rny lcarned brother, Tsekooko JSC, and do agree with him that the appeal should bc allor.r'ed. I also agree lvith the orders he has proposed. (t- - 11 a y o 1- - f\-!- -u, - -tz !-- -:>- - - z o t t s l)oletl trl lvlcngo, thrs --! ) t'\ a ".. A. N. KAROKORA JI,iSTICE OF THE STIPREI\IE COTIRT. / . (CORAM: ODOKI, CJ: ODER, TSEKOOKO, KAROKORA, AND M(ILENGA JJ.S.C:.) IN THE REPT]BLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT MENGO, KAMPALA CIVIL APPEAL NO.6 OF 2OO2 NURU KAYA APPELLANT AND CRESCENT TRANSPORTATION LTD RESPONDENT [Appeol ./rom the decision of the Court of Appeat at Kampala, (lt4ukasa- K ikonyogo, DC.l, O ke I I o and 7 w inomuj un i, JJ. A) dated 3"t August, 2001 in Civil Appeal No.37 of 20001. JUD GMENT OF KAR OKORA I have had the advantage ofreading 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. D a t e t) a t M e ngo, t h i, - -L' L ll - - - -,1 a yo./ -A-l--ct--tr -l -.-- - - 2 s 11 j . -\ \ ..- rl , fi r.' ''... A. N. KAROKORA JUSTICE OF THE SUPREME COURT.