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THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA AT MENGO
(CORAM: TSEKOOKO, KAROKORA, MULENGA, KANYEIHAMBA AND KATUREEBE, JJ.S.C.)
CIVIL APPEAL No.11 OF 2004
BETWEEN
MUSONGE MOSES
MUSAH APPELLANT/CROSS-RESPONDENT
AND
MUWONGE PETER RESPONDENT/CROSS-APPELLANT
[An appeal from a decision of the Court of Appeal at
Kampala (Engwau, Kitumba and Byamugisha, JJ.A) dated 1st June, 2004
in Civil Appeal No.77 of 2001]
JUDGMENT OF TSEKOOKO, JSC
I have had the benefit of reading in advance the judgment prepared by my
learned brother, Kanyeihamba,JSC. I agree with him that the
cross-appeal should
succeed and the matter be remitted to the High Court for assessment of damages.
My learned brother has given
the background to the appeal and the
cross-appeal.
We struck out the main appeal because it was incompetent as it had been
lodged out of time without leave of this Court. We
then asked counsel for both
sides to address us on the viability of the cross-appeal, that is to say,
whether after striking out
the substantive appeal, the cross-appeal remained
valid for us to hear and determine it on merit. Mr.Tibaijuka contended that we
had jurisdiction while Mr. Kuguminkiriza was not certain. Court adjourned the
cross-appeal and ordered counsel to put their arguments
in writing. When the
matter came up for hearing on 19/12/2005, we learnt that counsel had filed their
respective written arguments;
so we adjourned the matter for our decision to be
given on notice. We now give the decision.
The only ground in the Notice of Appeal was
framed as
follows: -
"The learned justice and lady justices of Appeal erred in law and fact,
in that they granted to the present Respondent "the reliefs sought in the
High Court" but inadvertently omitted to direct the trial court to assess the
General Damages payable by the
above-named Appellant to the above
named Respondent, or. alternatively, to make the
assessment
itself"
The respondent prayed for an Order that, in order to avoid a multiplicity of
actions, this Court itself should assess the General
Damages payable to the
Respondent, or alternatively that we make a direction on the matter.
Although we asked both counsel to address us on the viability of the cross appeal, Messrs Tibaijuka & Co. Advocates for the cross appellant did not in the written submissions address us on that point. Counsel had, however, stated on 17/5/2005 that the cross-appeal is viable. On the other hand, Messrs. Kuguminkiriza & Co., Advocates, for the cross-respondent in their written arguments challenged the viability of the cross-appeal. According to learned counsel since the substantive appeal was struck out, this means that-
"There was technically no appeal in court and hence the cross-appeal that was brought by the respondent fell by the weight of the main appeal."
According to counsel, the cross-appeal could only survive where the
substantive appeal is withdrawn. Counsel relied on rule 88 for
this
view.
With respect I do not quite understand the reasoning of Mr. Kuguminkiriza when he contends that the cross-appeal fell by the weight of the main appeal. Assuming that learned counsel meant that the cross-appeal was struck out along with the main appeal, I cannot accept this argument. I do not think that the provisions of rule 88 assist him as he contends in his written arguments. Supposing we had heard the main appeal and supposing we dismissed it, would that amount to a dismissal of the cross-appeal? The answer is no. According to Rule 86(1) of the Rules of this Courts-
"A respondent who desires to contend at the hearing of the appeal in the Court that the decision of the Court of Appeal or any part of it should be varied or reversed, either in any event or in the event of the appeal being allowed in whole or in part, shall give notice to that effect, specifying the grounds of his or her contention and the nature of the order which he or she proposes to ask the court to make, or make in that event as the case may be."
This is the provision which gives a respondent a right to lodge a
cross-appeal. It is an appeal against the decision of the Court
of Appeal.
Obviously, the only prerequisite is the existence of an appeal which enables a
respondent to cross-appeal by Notice. I
do not think that it is material that
the appeal must be a valid one so as to give rise to the institution of
across-appeal.
It seems to me that in terms of subrules (1) and (2) of Rule 90, cross-appeal does not, so to speak, die with the death of an appeal. Subrule(2) of the rule reads-
"90(2) if it (cross appeal) is not withdrawn, the cross appeal shall proceed to hearing and the provisions of these Rules shall apply as if the cross appellant were an appellant and the appellant a respondent,"
I think that the cross-appeal is viable and should be determined on its merits. I now turn to the merits of the cross-appeal. In prayer (d) (ii) in his Amended Plaint the Respondent prayed for general damages against the appellant for breach of contract. Consequently the third issue framed for trial read as follows-
"Whether the plaintiff is entitled to the remedies prayed for," After the case had been heard in the High Court, the Respondent's counsel in his written submissions before that Court, prayed for a sum of shs.10m/= as damages for breach of contract. And on appeal, in prayer (iii) in his Memorandum of Appeal in the Court of Appeal, the Respondent sought an order granting "all the remedies prayed for in his submissions in the High Court." This included general damages.
In his lead judgment with which the other members of the Court of Appeal agreed, Engwau, J.A stated-
"In the result, I would allow the appeal and grant the appellant the reliefs sought in the High Court with costs here and in the court below."
Unfortunately, when the High Court dismissed the
respondent's suit, the learned trial judge omitted to consider what he would
have
awarded as damages had the Respondent succeeded in the suit at the trial.
That is what creates the present problem.
Mr. Tibaijuka argued, quite
correctly in my opinion, that the phrase "the reliefs sought in the High Court"
appearing in the Court
of Appeal's award is vague and leaves the damages payable
to the Respondent unquantified; and there is, therefore, need for those
damages
to be assessed.
Under normal circumstances, the Court of Appeal ought to have exercised its
powers under rule 31(1) of the Court of Appeal Rules,
to remit the case to the
High Court with a direction that the latter court itself assess the general
damages payable to the respondent
in exercise of the powers conferred upon it by
section 11 of the Judicature Act (Cap.13). It was not proper for the
Court
of Appeal to award unquantified damages without assessing the same or
giving a direction for their assessment by the High Court.
Mr. Tibaijuka argued that Rule 3 0 of the Rules of this Court and section 7
of the Judicature Act are authority for the view that the options which
were available to the Court of Appeal are available to this Court. He submitted
that we can either remit the case to the High Court with a direction that the
court assess the damages payable to the respondent,
or we can make the necessary
assessment ourselves. He prayed that we take the latter course and award his
client at least shs 10m/=
On his part Mr. Kuguminkiri claimed that we have no power to either remit the
case to the High Court nor to assess damages ourselves.
He asked us to dismiss
the cross-appeal with costs. Learned counsel made these contentions without
apparently appreciating that our
Rule 30 and S.7 of Judicature Act give us the
necessary powers. In effect Mr. Kugumikiriza did not challenge the merits of
the
cross appeal and, therefore, he never commented on the quantum of
damages. I have held that Mr. Kugumikiriza's objections
to the competence of the
cross-appeal has no merit. Since the Court of Appeal properly allowed the
cross-appellant's appeal in that
court, the question is what orders should be
made. I think that this cross-appeal ought to succeed. However I cannot accede
to the
submission of Mr. Tibaijuka that we should assess general damages
ourselves even though I regret this for the reason that the case
has been in the
court system for eight years. What the cross-appellant wants are general
damages. If we award general damages ourselves
we would deprive either party of
the opportunity of challenging such an award in the event he is dissatisfied
with the award. Remitting
the matter to High Court could lead to an appeal by a
dissatisfied party resulting in a review of the award by a higher tribunal.
In
these circumstances I agree that we remit the matter to the trial court to
assess damages. This will be done by same trial judge
or his successor.
I
would award the cross-appellant the costs of this cross-appeal and his costs in
the Court of Appeal. Costs in the High Court should
be to the cross-appellant
to be taxed after the damages are awarded.
As other members of the court
agree, it is ordered accordingly.
JUDGMENT OF KAROKORA, JSC:
I have read in draft the judgment prepared by my learned brother, Dr.
Kanyeihamba, JSC.
I agree with his reasoning and conclusion that the Cross-Appeal should be allowed. I would also agree with the orders he has made to the effect that the case should be remitted to the High Court for assessment of the general damages. I also agree with him that the Cross-appellant should get the costs in this court.
JUDGMENT OF MULENGA, JSC
I had the advantage of reading in draft the judgment of my learned brothers
Tsekooko and Kanyeihamba JJ.S.C. I agree with them that
the cross-appeal ought
to succeed and that the case should be remitted to the trial court for
assessment of damages. I would also
award costs here and in the courts below to
the cross-appellant.
JUDGMENT OF KANYEIHAMBA, J.S.C
The facts and background of this cross-appeal may be summarized as
follows:
The Appellant made representations to the Respondent that he owned registered land comprised in Kibuga Block B plot No. 484, (hereafter referred to as the suit land) and that he possessed a certificate of title to that land. Consequently, the respondent bought the suit land from the appellant for a money consideration as evidenced in written exhs. P1 and P2. The respondent paid the requisite deposit in the sum of Shs. 650.000. Later, it transpired that the appellant did not have the certificate of title and claimed
that it had got lost during the war. In due course, through the efforts of
the respondent, a special certificate of title (Exh. 4)
was procured.
When the respondent offered the balance of the purchase price for the suit
land and asked for the transfer of the suit land to him
by the appellant, the
latter refused. A dispute arose and after some correspondence between the
parties, the respondent sued the
appellant in HCC Suit No. 559 of 1998. There
followed some protracted proceedings including the amendment of the plaint to
join in
a 2nd defendant, M/S Goodways Trustees Limited which had
lodged a caveat against the suit property claiming to have bought it also.
Later,
the 2nd defendant abandoned its claim. The appellant was not
present at the trial in which the respondent and his witness gave evidence.
Nevertheless, the trial court dismissed the respondent's claim with
costs.
The learned trial judge did not state any reliefs he would have given had the
suit succeeded. Be that as it may, the respondent appealed
to the Court of
Appeal in Civil Appeal No. 77 of 2001. That court decided the appeal in favour
of the respondent and granted him
"the reliefs sought in the High Court with
costs here and in the Court below". The court neither assessed the damages
nor remitted it to the trial court for the assessment of those damages. The
appellant was not
satisfied with the decision and order of the Court of Appeal.
He filed this appeal. The respondent in turn cross-appealed for an
order
regarding the assessment of general damages. On 17th May, 2005, when
the substantive appeal came up for hearing, Mr. Tibaijuka Ateenyi, counsel for
the appellant objected to the competence
of the appeal, because it was filed out
of time and without leave of court. We upheld the objection and struck out the
substantive
appeal with costs to the respondent. We then ordered the parties to
file written submissions on cross-appeal under Rule 93 of the
Rules of this
court. Mr. Kuguminkiriza and Mr. Tibaijuka represented the cross appellant and
cross respondent respectively, and both
have filed written submissions.
There is only one ground of the cross-appeal framed as follows:
"The learned Justice and Lady Justices of Appeal erred in law and fact
in that they granted to the present respondent 'the reliefs
sought in the High
Court' but inadvertently omitted to direct the trial court to assess the general
damages payable by the above
named appellant to the above named respondent, or,
alternatively to make the assessment themselves."
The pleadings in this cross-appeal also disclose that a plaint involving the
same suit land is or was pending determination in the
High Court before Rubby
Aweri Opio, J.
During their submissions before us on 17th May, 2005, Counsel
asked this court to find first whether a cross-appeal is still viable even after
a substantive appeal has been
struck out by a court. It is my view that the
Rules of this court do not distinguish between a substantive claim and a counter
claim.
For all intents and purposes, the justifications for any claim are the
same as those of a counter claim. The rules which govern the
filing, replies,
defences and disclosures about a substantive appeal are the same as those which
relate to a counter claim. One of
the reasons for treating a cross appeal as if
it were an appeal itself is to avoid multiplicity of suits.
Thus, Rule 90 of the Rules of this court provides;
"90 (2) if it is not withdrawn, the cross-appeal shall proceed to hearing and the provisions of these Rules shall apply as if the cross-appellant were an appellant and the appellant a respondent.
(3) if an appeal is withdrawn under rule 89 within fourteen days after
the date when the appeal was instituted, any respondent who
has not lodged a
notice of cross-appeal is entitled to give notice of appeal not withstanding
that the time prescribed by rule 71
has expired, if he or she does so within
fourteen days after the date when the appellants notice of withdrawal was served
on him
or her."
Mr. Kuguminkiriza, Counsel for the appellant
made submissions on the viability of the cross-appeal. He contended that it is
not viable
because the Rules of this court are silent on the fate of a cross
appeal following the withdrawal or the striking out of a substantive
appeal.
However, considering the provisions of Rule 90 which I cited above, Counsel for
the appellant is mistaken in this regard.
Mr. Tibaijuka, Counsel for the
respondent did not make submissions on the competence of the counter claim. He
assumed that it is
viable.
In my opinion, the withdrawal or striking out of a substantive appeal has no
effect on the cross-appeal.
I will now deal with the merits of this cross-appeal.
In his written submissions, Mr. Tibaijuka, stated, correctly in my opinion, that following its decision, the Court of Appeal ought to have exercised its powers under Rule 31 of its Rules to assess the damages itself or ordered to have the case remitted to the trial court with directions that such assessment be made. Counsel has not given this court any reasonable ground why the cross-appellant did not take that course of action and move the Court of Appeal to do either of the actions he has suggested. The pending retirement of a judge who was still hearing the case which he advances as a reason cannot alone cause the transfer of the jurisdiction of the court. On the other hand. Rule 30 of the Rules of this court provides that;
"on any appeal, the court may, so far as its jurisdiction permits,
confirm, reverse or vary the decision of the Court of Appeal with
such
directions as may be appropriate, or order the rehearing of the appeal (or
cross-appeal in this case) before the Court of Appeal
and as the justice of the
case demands, the court may order a trial de novo..."
Mr. Kuguminkiriza did not submit on the merits of this cross-appeal and as
already observed, he only submitted on its viability and
the competence of this
court to hear it. Nevertheless, in my opinion, this court has the jurisdiction
to hear the cross-appeal. On
the facts, evidence and submissions presented, I
would allow this cross-appeal. No reasonable grounds have been given for this
court
to do what the courts below ought to have done.
I would therefore order that the case be remitted to the High Court for assessment of general damages. I would award the costs of this cross-appeal in this court and the courts below to the cross-appellant.
JUDGMENT OF BART M. KATUREEBE, JSC
I have had the benefit of reading in advance the Judgments of my learned
brothers, Tsekooko and Kanyeihamba, JJ.SC, and I agree with
them that the
cross-appeal should succeed, for the reasons given in their respective
Judgments.
I also agree that the matter be referred to the High Court for assessment of
damages.
Dated at Mengo this 18th day of October, 2006.
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