Caroline Mboijana and Ors v James Mboijana (Civil Appeal No.3 of 2004 )

Case No: 
(Civil Appeal No.3 of 2004 )
Media Neutral Citation: 
[2005] UGSC 2
Judgment Date: 
21 February 2005
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THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA
AT MENGO
 
 
 
(CORAM: ODOKI, CJ., ODER, TSEKOOKO, MULENGA, KANYEIHAMBA, JJ.S.C.)
 
 
CIVIL APPEAL NO. 03 OF 2004
BETWEEN
 
 

1.      
CAROLINE MBOIJANA ]
2.       MOLLY MBOIJANA  ]:::::::::::::::::::::::::::::: APPELLANTS
3.      
SOS MBOIJANA     ]
 
 

AND

JAMES MBOIJANA :::::::::::::::::::::::::::::::::::::::::: RESPONDENT
 
 
 
[Appeal from the judgment and orders of the Court of Appeal (Mukasa-Kikonyogo, D.C.J., Engwau and Kitumba, JJ.A.) in Civil Appeal No. 87 of 2002, dated 15th May, 2003].
 
 

 
REASONS FOR THE JUDGMENT OF COURT
 
 
This is an appeal from the judgment and orders of the Court of Appeal dated 15th May, 2003, which we heard on 13th October, 2004 and allowed. We also restored and modified the orders of the late Mukanza, J. of the High Court which we read in court on the same day of our judgment. We made the following orders:
 
 
a) The respondent files in the High Court an inventory of the assets of the estate of deceased, within 30 days from today, if not yet filed.
b)      
The respondent makes an account to the High Court of all monies received on behalf of the estate, within 30 days from today.
c)      
The letters of administration granted to the respondent are hereby revoked and we order that the High Court issues to the three appellants letters of administration of the estate.
d)      
The appellants will have costs in this court, and in the courts below.
 
 

 
We reserved our reasons we now give.
 
The background to this appeal may be summarized as follows: The father of the appellants and respondent died intestate. The respondent was the youngest son of the deceased and on the death of their father, all the children agreed to have appointed the respondent, the administrator of their father's estate. The respondent was granted Letters of Administration on 5 March, 1991, and thereafter he administered the estate until he was challenged and sued in the courts.
 
The appellants instituted High Court Civil Suit No. 845 of 1996 against him on 16th September, 1996, seeking orders for an account of all the monies he had received on behalf of the estate, an inventory of the assets of the estate and their distribution, revocation of the Letters of Administration which had been granted to him with their consent and costs of the suit. The record of proceedings shows that the respondent's counsel, Prof. Joseph Kakooza, filed written submissions on the 19th February, 1999, opposing the appellants' grounds and prayers for rescinding the original Letters of Administration granted to the respondent. The High Court file containing the record of the proceedings and judgment in Civil Suit No. 845 of 1996 appears to have disappeared and could not be traced for sometime. In the meantime, the appellants claimed that the trial judge who heard that suit had not only completed the trial but had actually delivered judgment granting their prayers including cancelling the Letters of Administration granted to the respondent and granting fresh ones to the appellants severally and jointly.


Some considerable time elapsed before the file in the case could be found. However, in March, 2002, the respondent managed to trace the whereabouts of the file and claimed that on perusing it he had found neither a signed judgment nor a valid final decree in favour of the appellants or at all. He therefore contended that High Court Civil Suit No. 845 of 1996 had not been completed and was still pending and he remained the de jure and de facto administrator of his father's estate. By the time of discovery of the file and the claims and counterclaims by the parties arose, the trial judge in Civil Suit No. 845 of 1996, the late Ignatius Mukanza, J. had passed away.


However, there was on the record of proceedings in that suit, a typed copy of a judgment purportedly prepared by the late Mukanza, J. The typed judgment was not signed. It had not been certified as a true copy of the judgment. Consequently, the respondent vigorously disputed its authenticity. On the other hand, the appellants believed that the judgment had been duly prepared and delivered in their favour on the 19th October, 1999.
The Respondent filed Miscellaneous Application No. 326 of 2002 seeking orders that judgment in the said Civil Suit No. 845 of 1996 had never been pronounced and that consequently his letters of administration to the estate of his father had been wrongly cancelled. The application was heard by Mukiibi, J., and dismissed with costs. The respondent appealed to the Court of Appeal which allowed the appeal. In its judgment, the Court of Appeal held that there had been no judgment delivered and ordered that the case be remitted to another judge to write the judgment or try the case de novo. The appellants were dissatisfied with both the judgment and orders of the Court of Appeal - hence this appeal.


There was only one ground of appeal framed as follows:
 
 

 
The learned Justices of the Court of Appeal erred in law and in fact in holding that there was no judgment in H.C.C.S. No. 845 of 1996.
 
 
 
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.
 
 
 
Dated at Mengo, this 21st day of February, 2005
 
 
 
 
 
 
 
 
 
B.J. ODOKI
CHIEF JUSTICE
 
 
 
A.H.O. ODER 
JUSTICE OF THE SUPREME COURT
 
J.W.N.TSEKOOKO
JUSTICE OF THE SUPREME COURT
 
J.N. MULENGA
  JUSTICE OF THE SUPREME COURT
 
 
 
G.W. KANYEIHAMBA 
JUSTICE OF THE SUPREME COURT