Counsel for the appellants filed written submissions under Rule 93(1) of the Rules of this Court.
In the written submissions, Mr. Francis Buwule for the appellants contended that the learned Justices of Appeal erred in law and fact when they based their decision on the knowledge that there was no signed copy of the judgment. Counsel further contended that the Justices of
Appeal erred when they held that since the lawyer who had attended the delivery of the judgment had denied knowledge of it and the date of the judgment decree was different from that of the judgment itself, there was ample evidence to
suggest that no judgment was delivered on the material date.
Counsel for the appellants contended that the findings of the Justices of Appeal were at variance with the findings of the trial judge
who, having heard the evidence of witnesses concluded that there was a high probability that a handwritten judgment which was read, signed and dated got misplaced.
Counsel submitted that the findings of the trial judge which are supported by evidence should be preferred to those of the Court of Appeal. Counsel then proceeded to relate and analyse that evidence which included supportive affidavits of witnesses. Counsel submitted further that there was also a decree which proved that indeed a judgment had been delivered and existed at the time the decree was prepared.
Counsel contended that in giving orders to the Registrar of the court to issue Letters of Administration of the deceased's estate,
the trial judge was fully aware that he had already delivered judgment in the case. It was counsel's further contention that failure
to sign a judgment is a mere technicality which does not preclude other evidence to show that the judgment was delivered. Counsel
for the appellants cited provisions of the law and rules from the Civil Procedure Act and Rules, Thakkursingh v. Bhaironlal, 1956 AIR 113, Abrath v. North Eastern Railway (1883) QBD 440, Musisi Dirisa & 3 Others in Seitco(U) Ltd., Civil Appeal No. 24 of 1993 (S.C.).
For the respondent, Mr. Kakuru submitted that it was a common ground between the parties that there was no signed judgment in existence
which can be presented as the judgment of the trial judge. He contended that in addition, there was no evidence that the judgment
was ever delivered in court.
It was also the submission of Mr. Kakuru that since there was no signed judgment, no handwritten original copy of the same, it could
not be shown or proved that the decree signed by the same judge was either in conformity with the missing judgment or authentic by
itself. Counsel further submitted that there were no returns of service or notification by the court of the date for judgment. Counsel
made further submissions concerning the burden of proof. He contended that respondent having proved the absence of a written or signed
judgment and lack of returns of all the necessary process services, the onus of proving its existence shifted to the appellants which
they failed to discharge to the satisfaction of the Court of Appeal. Learned counsel further contended that the learned Judge who
heard the application to revoke the respondent's Letters of Administration was in error to hold that it was necessary for the respondent
to have proved fraud. On the affidavits by both counsel for the parties in the trial court, Mr. Kakuru contended that what they said
was hearsay since neither was in court on the day the judgment is alleged to have been delivered.
In our view, the determination of this appeal depends on the evidence available on the record of proceedings. It is a fact that the
record of proceedings contains neither a signed judgment nor a handwritten draft of its original. There is however unsigned but dated
and typed judgment. It is on the absence of a signed and certified judgment that the respondent relies in seeking the prayer from
this court to confirm the judgment and orders of the Court of Appeal. As against the respondent's assertion, there are other pieces
of evidence which tend to show that the trial judge, the late Mukanza, J. actually delivered his judgment in court.
Interestingly, Counsel who represented both parties in the trial court, namely Prof. Joseph Kakooza and Peter Mulira, confirm in
their respective affidavits that following the conclusion of the trial before the late Mukanza, J., judgment was delivered.
In his affidavit dated 31st of July 2002, learned counsel, Mr. Peter Mulira, depones:
"7. That on the 19th October, 1999, judgment was delivered by the said Justice Mukanza in the presence of M/s Regina Kugonza, who appeared on my behalf
8. That subsequently, I extracted a Decree in the said judgment which was approved by Prof Kakooza of M/s Kayondo & Co., counsel
for judgment debtor."
On his part, the learned Prof. Kakooza who represented the respondent in the trial court deponed:
"3. That I was the Advocate representing James Mboijana in High Court Civil Suit No. 845 of 1996 while practicing Law with M/s Kayondo
& Co. Advocates.
4.
That the H.C.C.S. No. 845 of 1996 was wholly heard by the late Honourable Justice Mukanza.
5.
That Mr. Peter Mulira represented the plaintiff in the said suit.
7. That judgment was delivered in the said case on 19th October, 1999.
8.
That I did not attend court on the date of judgment but briefed Mr. Rwankole who was a lawyer in our firm to attend court and receive
judgment on my behalf.
9.
That H.C.C.S. No. 845 of 1996 was decided in favour of the plaintiff.
10.
That I subsequently received and read through the judgment which ordered, among others, the revocation of letters of administration
which had been granted to my client and the appointment of plaintiffs as the administrators of the estate.
11.
That subsequently, Mr. Mulira sent me a draft decree for my approval and after satisfying myself that the draft decree conformed to
the terms of the judgment, I approved it by signing on it. A copy of the said decree is attached
as Annexture "B".
12.
That after the judgment, I had opportunity to inform and discuss the matter with my client, the applicant herein."
The decree which was approved by counsel for respondent as stated in his affidavit was signed by counsel for the appellants, Mr. Peter Mulira and by the trial judge. No evidence was adduced to challenge those signatures or to suggest that they may have been forged.
The dated but unsigned judgment includes at its bottom, the following information,
"19.10.1999:
Miss Kugonza Regina holding brief for Mr. Mulira, counsel for the plaintiff.
Mr. Rwankole for Professor Kakooza, counsel for the defendant. Mr. Masongole: court clerk.
Court:
Judgment is read and signed.
Mukanza JUDGE
19.10.1999."
Mr. Rwankole denies having been involved in the case or having attended court on the day the judgment was delivered. On the other hand, Ms. Regina Kugonza Musisi
attended court and in her affidavit she states; inter alia,
"4. That on 19th day of October, 1999, I was instructed by Mr. Mulira Peter then counsel for the Respondent/Plaintiffs to attend court on his behalf
at 2.30 p.m. that day before the Honourable Justice Mukanza to receive judgment in H.C.C.S. No. 845 of 1996. Caroline Mboijana & Others v. James Mboijana.
5. That I duly attended court on that afternoon in the Chambers where the Honourable Justice Mukanza (as he then was) personally read
and delivered his handwritten judgment in H.C.C.S. No. 845/96."
In our view, there is overwhelming evidence proving that in Civil Suit No. 845 of 1996, the learned trial judge completed the case
and wrote the judgment and delivered. Counsels were summoned to receive it and it was indeed read in court on the 19th day of October, 1999.
We therefore find that the Justices of the Court of Appeal erred in law and fact in failing to properly reevaluate the evidence when
they concluded that there was no judgment delivered by the learned trial judge in this case.
It is for these reasons that we allowed this appeal and made the orders dated the 13th October, 2004.
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