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THE REPUBLIC OF UGANDA
IN THE SUPREME COURT
OF UGANDA
AT MENGO
(CORAM: ODOKI, CJ.,
TSEKOOKO, KAROKORA, MULENGA, AND KATUREEBE JJ.SC.).
CIVIL APPEAL
NO. 17 OF 2001
BETWEEN
MPUNGU & SONS TRANSPORTERS LTD APPELLANT
AND
1. ATTORNEY GENERAL ] RESPONDENTS
2. KAMBE COFFEE FACTORY (COACH) LTD]
[Appeal from
the decision of the Court of Appeal of Uganda at Kampala (Kato, Engwau,
Twinomujuni JJ.A), dated 27th April, 2001 in Civil Appeal No. 63 of
1999].
JUDGMENT OF KATUREEBE, J.S.C.
This is a second appeal, the original suit in the High Court was
dismissed, and a subsequent appeal to the Court of Appeal was also
dismissed.
Hence this appeal.
The appellant, a bus-operator, had been granted a
licence by the Transport Licencing Board (TLB) to operate the route known as
SCL 2A: MASINDI - KAFU - NAKASONGOLA - KAMPALA (herein referred
to as "the route"). Another company called Super Coach had also been granted a
licence to operate on the same route.
Subsequently, the 2nd
respondent was also granted, first a temporary and later a 5 year, licence to
operate the same route, thus making a total of three
bus operators on the route.
It is this third licence that is the source of the dispute. The appellant felt
that it was not economical
for three operators to be licensed for the route and
that this had badly affected its economic returns and driven it into financial
difficulties. More seriously however, it contended that the manner in which
the 2nd Respondent had been awarded the licence by the officials of
the TLB was based on fraud, bad faith, and unfair play. It claimed that
it
should have been given a hearing by the TLB before any licence was granted to
the 2nd respondent since such grant would affect its interests. The
hearing was never granted and, according to the appellant, thereby
violating the
well known rule of natural Justice known as Audi Alteram Partem. In its
original suit, the appellant sought from court a declaration that the licence
granted to the 2nd respondent was invalid. It also claimed general
and aggravated damages, exemplary damages and special damages and costs therein.
It also sought an injunction to restrain the 2nd Respondent from
operating the route. The High Court examined a number of documents submitted in
evidence as exhibits and also heard
oral testimonies of witnesses. It found the
suit to be without merit and dismissed it. As already stated above, the appeal
to the
Court of Appeal was unsuccessful.
The appellant filed this appeal
on three grounds of appeal framed as follows:-
1. That the learned Justices of appeal erred in mixed fact and law in holding that the appellant did not prove the alleged fraud to the required standard.
2. That the learned Justices of appeal erred in mixed law and fact in admitting the oral testimony of DWI (Bushoberwa) in preference to the documentary evidence on the record regarding the alleged fraud and unfair play.
3. That the learned Justices of Appeal erred in not granting the reliefs sought by the appellant".
Mr. Kibedi, Counsel for the Appellant,
argued grounds 1 and 2 together, and for ground 3 he adopted his submissions in
the Court of
Appeal. I am constrained to observe, however, that what Counsel
said in the Court of Appeal criticising the trial Judge could not
be applicable
in this court when criticising the Justices of Appeal, which in essence is the
substance of ground 3 of appeal in
this court.
Be that as it may,
Counsel strenuously argued his two first grounds of appeal. He submitted that
the Court of Appeal had abdicated
its duty to properly re-evaluate and weigh the
evidence on record and had therefore come to a wrong conclusion. He submitted
that
evidence of fraud had arisen at 3 stages: at the initial stage of granting
the temporary license to the 2nd Respondent, at the renewal of that
license, and lastly at the grant of the 5 years licence. He submitted that
evidence of that fraud
at the first stage was to be found in the testimony of
PW1 whose evidence to the effect that in so far as the TLB had not called
him
and given him a hearing before granting a temporary licence to the
2nd respondent. Thus, the TLB had violated the Audi Alteram
Partem rule and this amounted to fraud. Counsel cited section 90 of the
Traffic and Road Safety Act, 1970 as amended by The Traffic & Road Safety
Act (Amendment) Decree 18/73 to support his submission. Other supposed
evidence of fraud cited by counsel were exhibits P4, P.8 and P 9A, which
indicated that the 2nd respondent had been advised to look for
another route, but had instead continued to operate on the route. Counsel
pointed to inconsistencies
in the documents and submitted that these
inconsistencies amounted to fraud or unfair play and
malafides.
Counsel cited a number of authorities in support
of his submissions. He referred us to section 154( c) of the evidence Act on
the
credibility of a witness in relation to previous correspondence. He
referred to SARKAR’S LAW OF EVIDENCE and the case of
MILLY MASEMBE -Vs- 1. SUGAR CORPORATION, 2. KAGIRI RICHARD, (S.C.)
Civil Appeal No. 1 of 2000 (unreported), and Section 90 of the Traffic
& Road Safety Act. He also referred to the case of FARM
INTERNATIONAL -Vs- MOMAMED HAMID EL-FATHIA CIVIL APPEAL NO. 16/93 (S.C.V) on
the issue of fraud. On the basis of these authorities he invited us to find
that the Court of Appeal had misdirected itself on
the law and facts.
For
the 1st Respondent, Mr. Oryem Okello supported the findings of the
Court of Appeal. He submitted that the court had correctly re-appraised
the
evidence on record and had correctly affirmed the decision of the High Court.
He argued that the appellant had the duty to prove
fraud and had failed to do
so. The alleged inconsistencies in the tendered documents P4, P8, P9A and P 9B
did not prove fraud.
The apparent inconsistencies had been explained in court
on oath by DWI whom the trial court had believed. The Court of Appeal had
seen
no reason to interfere with that finding. He argued that proof of fraud had to
be to a standard higher than that required in
ordinary civil matters, and cited
the case of Kampala Bottlers Ltd -Vs- Ddamanico (U) Ltd Civil Appeal No.
22/1992, (S.C) (unreported) in support of that argument. He also submitted
that in terms of sections 101 and 103 of the Evidence Act, the
burden to prove
fraud lies on the appellant. He submitted that exhibit P 9A which were minutes
of a meeting was not signed whereas
exhibit P.9B which was minutes of the same
meeting was signed after mistakes in P.9A had been corrected. He therefore
submitted
that the court had correctly found that exhibit P9A had no evidential
value.
On the issue of whether the Transport Licencing Board had acted
correctly within the law, he submitted that in terms of section 91
of the
Traffic & Road Safety Act, 1970 and section 87 of decree 18/73, the Board
had considered the public interest and taken
into account the interests of the
appellant before granting the licence to the 2nd respondent. In
counsel's opinion, there was no legal requirement to invite the appellant,
although in fact he had been invited to
attend a meeting of all the operators
but had refused to do so. On ground 3, counsel submitted that the appellant was
not entitled
to any reliefs and that this was not a case that merited an award
of exemplary or aggravated damages.
For the 2nd respondent,
Mr. Ogalo submitted that the appellant had failed to prove any fraud at any
stage of the proceedings leading to the grant
of the licenses to the
2nd respondent. Counsel contended that, the appellant should have
proved dishonesty on the part of the 2nd respondent. No evidence of
dishonesty had been produced in the Court. Counsel further contended that the
appellant had no right
to be heard before the Transport Licensing Board. In any
event, the finding of the Court of Appeal was that his interests had been
taken
into account by the Transport Licensing Board. He submitted that the Court of
Appeal had fully re-appraised the evidence and
come to the right decisions and
that there was no basis for this Court to interfere with the decision and
findings of the Court of
Appeal. He cited the case of Maddumba - Vs -
Wilberforce Kuluse, Civil Appeal 9/2002 (S.C.) (unreported) in support. He
submitted that a second appellate court could only depart from the concurrent
findings of the
lower courts only if special circumstances justified it to do
so. He submitted that no special circumstances existed in this case.
On
the question of damages, he submitted that appellant had failed to prove his
claims. The 2nd respondent had not conceded to Shs.200, 000/=. He
had merely answered a question as to what he earned. Counsel prayed for the
dismissal
of the appeal.
As already stated, this is a second appeal. It is
therefore necessary to examine the law and basis upon which this court may
interfere
with the findings of the lower court with regard to facts. In
ERISAFANI MUDDUMBA -Vs- WILBERFORCE KULUSE, (supra) this Court
held that a second appellate court will only depart from the concurrent findings
of fact by the lower courts only
if special circumstances justified it in doing
so.
In that case, Oder, JSC, stated at page 4 of his Judgment:
"The Court of Appeal was the second appellate court in this matter. As such, it could only depart from the concurrent findings of fact by the trial Magistrate's Court and the appellate High Court if special circumstances justified it doing so. This is trite law on the role of a second appellate court regarding findings of fact."
In an earlier
case of PETERS -Vs- SUNDAY POST LTD, (1958) E.A. 424, the Court
of Appeal for Eastern Africa made a similar decision after reviewing a number of
English cases on the subject.
Thus Sir Kenneth O'Connor, P, cites the
following passage from the Judgment of Viscount Simon, L.C in the Case of WATT
-Vs- THOMAS {1947}
A.C.484:
"My Lords, before entering upon an examination of the testimony at the trial, I desire to make some observations as to the circumstances in which an appellate court may be justified in taking a different view on facts from that of a trial judge: - .........Apart from the classes of case in which the powers of the Court of Appeal are limited to deciding a question of law..............an appellate court has, of course, jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand: but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this is really a question of law) the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at the trial and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight. This is not to say that the judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given."
The role of a second appellate court in the
evaluation of evidences is also well articulated upon by this Court in MILLY
MASEMBE -Vs- SUGAR CORPORATION AND ANOTHER, CIVIL APPEAL NO.1 OF
2000, (supra). The test seems to be whether the trial judge failed to
take into account any particular circumstances or probabilities
or whether the
demeanor of the witness whose evidence was accepted was inconsistent with the
evidence generally. In the Milly Masembe Case (supra). Mulenga,
JSC, observed:-
"In a line of decided cases this Court has settled two guiding principles at its exercise of this power. The first is that failure of the first appellate court to re-evaluate the evidence as a whole is a matter of law and may be a ground of appeal as such. The second is that the Supreme Court, as a second appellate court, is not required to, and will not re-evaluate the evidence as the first appellate court is under duty to do, except where it is clearly necessary."
In that case, the Court of Appeal had
differed from the trial court on findings of fact and conclusions drawn
therefrom, and the Supreme
Court decided that in those circumstances, it was
necessary to re-evaluate the evidence.
The appellant has alleged fraud,
bad faith and unfair play on the part of the respondents. What evidence was
adduced to support this?
As already noted, the appellant sought to rely on
alleged inconsistencies in exhibits P4, P8, P9A and P9B. In my view the trial
court as well as the Court of Appeal appropriately addressed their minds to this
evidence and both courts correctly decided that
it was insufficient to prove
fraud. They both found credible explanations for the alleged inconsistencies
in the evidence of DW1,
which evidence was not impeached by the appellant. Both
courts made similar findings on both facts and law and independently came
to the
same conclusions.
In his lead judgment, Kato, JA, having considered the
finding of fact by the trial judge with regard to fraud, said,
"I agree with that finding of fact by the trial judge. As for the alleged contradictions in exhibit P9A and exhibit P9B, DW1 explained, while under cross examination, that there was an error in exhibit P9A which was corrected in exhibit P.9B and that is why the former was not signed but the latter was signed. The learned trial judge must have accepted this explanation as genuine before he made his above quoted finding. Exhibit P4 and exhibit P8, were letters from the Secretary to the Board stopping the second respondent from plying the route in dispute and informing it of the Board's intention to allocate it a different route. The trial judge dealt with the two exhibits in his judgment and ruled, quite rightly in my view, that the two documents did not entitle the appellant any remedy ................there is nothing in them (letters) suggesting that there was fraud on part of the Board. The mere fact that the second Respondent was an undisciplined operator does not per se amount to fraud. Fraud must be strictly pleaded and proved......."
Having carefully listened to Counsel
Kibedi's arguments before us and perused the record of proceedings, I am not
persuaded that
there is any cause for this court to interfere with the lower
courts' appraisal of the evidence and findings in regard to the allegations
of
fraud. In Kampala Bottle's Ltd -Vs- Daminico (U)
Ltd, Wambuzi, (supra) CJ., observed:
"Further, I think it is generally accepted that fraud must be proved strictly, the burden being heavier than on a balance of probabilities generally applied in civil matters."
This court further
elucidated upon the proof of fraud in FAM International Limited -Vs-
Mohamed Hamid El Fatih (Civil Appeal No. 16 of 1993). (supra) in which
Odoki, JSC, (as he then was) stated thus:
"It seems to me that while the statement quoted from Halburys Laws of England (Supra) represents the law on the standard of proof in fraud cases in general terms, it does not go far enough to emphasise that in fraud cases the standard is more than a mere balance of probabilities though less than proof beyond reasonable doubt...."
In the instant case, the
learned trial judge found that the appellant had not even proved his case on a
balance of probabilities.
He stated in his Judgment thus:
"The third issue was whether the purported license of the second defendant to operate in the same route with the plaintiff was done fraudulently. I included this issue while considering issue No.2 I do not see any fraud or bad faith on the part of the TLB and leave alone violation of the principles of natural justice ...............It would appear that the defendant wanted to extract from the defendant on such .................evidence. He has failed to prove his claim on a balance of probabilities and as such the suit be dismissed with costs."
The Justices of Appeal agreed with this
finding. Having reviewed the law, the evidence and submissions of counsel, I
have found no
reason to interfere with their concurrent findings.
In
arguing his two combined grounds of appeal, counsel for the appellant dwelt on
the alleged unfair play which, he submitted, was
to be found in the documentary
evidence. He submitted that the Appellant had not been given a hearing before
the grant of the license
to the 2nd respondent so that he could have
defended his interests. Failure to give him a chance to be heard, he submitted,
amounted to breach
of the Audi Alteram Partem Rule. He cited the case of
MARKO MATOVU AND TWO OTHERS -Vs- MOHAMMED SSEVIRI AND ANOTHER, CIVIC APPEAL
NO. 7 OF 1978 to support the proposition that the Audi Alteram Partem
Rule is so central to Uganda's system of Justice that it must be observed by
both Judicial and administrative tribunals.
I agree that the Audi
Alteram Partem rule is a cardinal rule in our administrative law and should
be adhered to. Simply put the rule is that one must hear the other
side. It
is derived from the principle of natural Justice that no man should be condemned
unheard. (See Black's Law Dictionary) 6th Edition. However
one would have to prove that one had a right to be heard which had been
breached, and that the decision arrived at by the
administrative authority had
either deprived him of his rights or unfairly impinged on those rights thereby
causing damage to the
individual concerned. Most cases involving the right to
be heard have dealt with situations where a person was being deprived of
his
property or livelihood. But each case has to be looked at on its own
merits
Thus, in the case of Russell -Vs- Nolfolk {1949} 1 All ER 109
Turker, L.J, stated: "The requirements of natural justice must depend on the
circumstances of the case, the nature of the inquiry, the rules under
which the
tribunal is acting, the subject matter that is being dealt with, and so forth."
In the instant case, the appellant cited Section 90 of the Traffic and
Road Safety Act, as amended by Decree 18/73 as the basis for his
right to be heard. For better appreciation of that Section, I have set it out
in full thus:
90." (1) Within one month of the receipt of the information under subsection (2) of section 87A of this Act, the Secretary to the Board shall cause to be published in the Gazette for the information of the public and prospective public omnibus and country taxicab operators and shall invite applications from such operators to assist the Board in its subsequent deliberations.
(2) Not less than two months after the advertisement has been published under sub-section (1) of this section, the Board shall meet to consider, allocate and offer one or more of the previously advertised routes or packages of routes to prospective transport operators.
(3) The Board shall not offer, grant or renew a public omnibus or country taxicab operator's licence to any person who,
(a) has been convicted of an offence involving fraud or dishonesty;
(b) is in breach of a condition of any previously held operator's license;
(c) has had a public service operator's licence of any type cancelled under this or any other Act,
and shall have due regard to the reliability, character and financial stability of that person, the condition of his motor vehicles and the facilities at his disposal for the general maintenance of service on the route or routes or combination of routes." (emphasis is mine).
The Board took the above factors into account before granting a licence to the appellant. It is not being sought to deprive the appellant of his licence .
This section makes reference to section 87A which deals with the factors that have to be considered while compiling the routes and package for routes. These factors are: " a) the needs of the public;
b) the desirability of providing services which are both efficient and economic; c) the coordination, in so far as may be possible, of all forms of passenger transport both in any particular area and in the whole of Uganda;" ...............(section 87A (2).
It is noteworthy that Section 90 (3)
provides that in granting or renewing omnibus license, the TLB shall "have
due regard to the reliability, character and financial stability of that person,
the condition of his motor vehicles and the
facilities at his disposal for the
general maintenance of service on the route or combination of routes"
This is more or less repeated in Section 91(2) which sets out the factors the
TLB must have due regard to in granting a private
and contract omnibus
operator's licence.
It appears to me that neither of these sections
establishes for any party already operating a route any right to be heard before
another
operator is granted a licence. The board has to consider the totality
of the factors listed in those sections. The evidence, both
documentary and
oral, shows that after the appellant complained, it was in fact invited for
meetings to discuss the matter. One
such meeting called for 11th
December, 1996 the appellant refused to attend. Furthermore, the appellant did
not establish that the route had to be operated by
only two operators, nor did
it show that a decision had been made to deprive it of its license. The Trial
Court and the Court of
Appeal believed the evidence of DW1 that the TLB had
considered not only the interests of the Appellant but also the interests of
the
public as demanded by the law. In considering whether the route was economic,
the Transport Licencing Board had taken into account
that the route had
previously been operated by 3 operators until the bus of one was burned in
Northern Uganda. Therefore licencing
another operator, although increasing
competition for the Appellant, was promoting the interest of the public, even
though it could
possibly mean a drop in the revenue of each operator. Further
evidence on record, which was unchallenged in cross examination, was
to the
effect that whereas the Appellant's vehicle on the route was an old Tata Bus,
the 2nd Respondent's vehicle was a newer Isuzu favoured by the
public. Here once again one has to bear in mind factors which the Transport
Licencing Board has to consider in granting an omnibus licence, set out in
Section 91(2) (d) thus:
"The reliability, character and financial stability of each applicant for a licence, the condition of the motor vehicles to be used, and the facilities at his disposal for the general maintenance of the service on such route or routes or combination of routes."
Bearing the above
provisions of the law in mind, and taking into account the evidence of DW1 and
his explanation of the apparent contradictions
in the evidence, I do not see
that the appellant had a right to be heard which was violated. The Matovu
case (supra) is not applicable to this case as there was no violation of the
Audi Alteram Partem Rule.
In my view, grounds 1 and 2 of appeal
ought to fail. The Court of Appeal properly directed itself to the law and the
evidence and
came to the right decision in dismissing the appeal, and confirming
the decision of the trial court.
With regard to the reliefs sought,
counsel for the appellant submitted that the trial judge failed to assess the
damages claimed.
He submitted that special damages of Shs.500,000/= net income
per day had been admitted by the 1st respondent. He prayed for
exemplary and aggravated damages, general damages and costs. All this was
opposed by Counsel for the
respondents in reply. Nonetheless, the Court of
Appeal did find that the trial judge should have gone ahead and made an
assessment
of damages even though he had dismissed the case. In the lead
Judgment, Kato, JA, said:
"With respect, I do not agree with the Counsel for the respondents that there was no basis upon which the assessment could have been made. There were figures given by PW1, arbeit contradictory, upon which the assessment would have been based. The judge was wrong in not carrying out part of his duty of assessing damages although he had dismissed the suit. In my view, this failure by the trial judge did not result in miscarriage of justice to justify interfering with his judgment."
Kato, JA, was correct
because it is good practice for trial courts to assess damages they would have
given to save time of sending
back the case for assessment of damages. It is
also correct to hold that failure to assess damages does not cause a failure of
justice.
In this case, since there are no damages to assess the complaint has
no merit. In my view, if counsel had wanted us to interfere
with the decision
of the Court of Appeal in this matter, he should have addressed us on it and
offered us strong reasons in support.
But since I am of the view that the first
two grounds of appeal do fail, no useful purpose would be served now to consider
the question
of reliefs sought.
In passing, I wish to observe that this
was not the type of case where a court would consider exemplary and aggravated
damages. The
facts of the case do not bring out oppressive, and unlawful
conduct as submitted by the Appellant. The appellant retained his licence,
only
that it now had two competitors instead of one. It was up to it to put on the
route the type of bus that would probably compete
much more favourably with the
others.
In the result, I would dismiss this appeal with costs in this
court and the courts below.
JUDGMENT OF ODOKI, CJ
I have had the advantage of reading in draft the judgment prepared by my
learned brother, Katureebe JSC and I agree with him that
this appeal should be
dismissed with costs in this Court and the Courts below.
As the other
members of the Court also agree this appeal is dismissed with costs in this
Court and Courts below.
JUDGMENT OF TSEKOOKO, JSC
I have had the benefit of reading in draft the judgment prepared by my
learned brother, Katureebe, JSC, which he has just delivered
and I agree that
this appeal has no merit whatsoever and therefore it should be dismissed.
I also agree that the appellant should pay the respondents their costs
here and in the Courts below.
JUDGMENT OF KAROKORA, JSC:
I have had the benefit of reading in draft the judgment prepared by my
learned brother, Katureebe, JSC, and agree with him that the
appeal has no merit
and should be dismissed with costs here and in the courts below.
I have
nothing of jurisprudential value to add.
JUDGMENT OF MULENGA, JSC
I had the advantages of reading in draft the judgment of my learned
brother Katureebe JSC. I agree with him that the appeal be dismissed
with costs
and have nothing to add.
DATED at Mengo this 14th day of March 2006.
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