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Opio Mark Hassan T A Acholi Ber Country Hotel v Kongo Yat Transporters Limited (Civil Appeal No. 321 of 2022)

Court of Appeal · [2025] UGCA 293 · 2025 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
First civil appeal from a High Court judgment in a suit for recovery of land, mesne profits and trespass following a mortgage foreclosure sale.
Decision
Appeal allowed; trial court judgment set aside and a retrial ordered before another judge.

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Holding

The Court of Appeal allowed the appeal. Grounds one and two were struck out under Rule 86(1) because they attacked a separate 2015 ruling of a different judge, not the judgment under appeal. On grounds three and four, the court found that cross-examination of the appellant (DW1) was never completed before the trial judge closed the defence case and entered judgment, rendering the trial incomplete and irregular and violating the right to a fair hearing under Articles 28(1) and 44(c) of the Constitution. As that judgment could not stand, the court set it aside and ordered a retrial before another judge, with costs to abide the outcome of the cause. The remaining grounds were not considered.

Facts

Bank of Africa advanced the appellant Shs 405,000,000 to complete construction of the Acholi Ber Hotel on land comprised in LRV 3467 Folio 10, Plot 25 Market Road, Gulu. The appellant defaulted on the repayment terms, and the bank's auctioneers advertised the mortgaged security for sale. By agreement dated 7 February 2014, the respondent purchased the property for Shs 520,000,000; it was transferred into the respondent's name on 12 March 2014, and the respondent took possession on 20 March 2014 and operated a hotel. On about 27 March 2014, the appellant forcefully repossessed the property and refused to vacate. The respondent sued for recovery of the land, general and special damages for trespass, mesne profits, and a permanent injunction. At trial, cross-examination of the appellant (DW1) was adjourned to allow reconciliation of bank records but was never completed; the trial judge closed the case, directed final submissions, and entered judgment for the respondent.

Issues

  1. Whether grounds one and two, which challenged a separate ruling of a different judge made on 15 December 2015, properly lay in an appeal against the High Court judgment delivered on 20 June 2022.
  2. Whether the trial judge's failure to complete cross-examination of the appellant before closing the defence case and entering judgment violated the appellant's right to a fair hearing.
  3. Whether the trial judge erred in holding that the appellant was indebted to the bank at the time of foreclosure and sale.

Orders

  • Grounds one and two struck out.
  • Appeal allowed.
  • Judgment of the trial court set aside.
  • A retrial ordered before another judge.
  • Costs to abide the outcome of the re-trial.

Key headnotes

Appeals — Grounds of Appeal — Rule 86(1) Court of Appeal Rules
A ground of appeal that challenges a separate ruling made by a different judge, which is not the decision appealed against, offends Rule 86(1) of the Court of Appeal Rules and will be struck out.
Right to a Fair Hearing — Opportunity to be Heard — Articles 28(1) and 44(c)
The right to a fair hearing under Articles 28(1) and 44(c) of the Constitution guarantees a litigant an opportunity to be heard and to present their case; it does not guarantee that a party must be heard, so a litigant who is given but fails to use that opportunity cannot later allege a denial of fair hearing.
Conduct of Trial — Incomplete Cross-Examination
Where the cross-examination of a witness is not completed before the trial court closes the case and enters judgment, the trial is incomplete and irregular and the resulting judgment cannot stand.
First Appeal — Duty to Re-appraise Evidence — Rule 30(1)
On a first appeal from the High Court's exercise of original jurisdiction, the Court of Appeal has a duty to re-appraise the evidence as a whole, reconsider the materials before the trial judge, and reach its own conclusions, while carefully weighing the judgment appealed from.
Remedies on Appeal — Retrial
Where a trial is rendered incomplete and irregular by a violation of the right to a fair hearing, the appropriate remedy on appeal is to set aside the judgment and order a retrial before another judge.

Legislation cited (17)

  • Constitution of Uganda 1995 art.28(1)
  • Constitution of Uganda 1995 art.44(c)
  • Civil Procedure Act s.2(m)
  • Civil Procedure Act s.26(2)
  • Civil Procedure Act s.98
  • Civil Procedure Rules Order 9 rule 2
  • Civil Procedure Rules Order 9 rule 20
  • Civil Procedure Rules Order 17 rule 3
  • Civil Procedure Rules Order 17 rule 4
  • Civil Procedure Rules Order 18
  • Civil Procedure Rules Order 19 rule 1
  • Mortgage Act 2009 s.19
  • Mortgage Act 2009 s.20
  • Evidence Act s.101
  • Evidence Act s.102
  • Judicature (Court of Appeal Rules) Directions SI 13-10 rule 30(1)
  • Judicature (Court of Appeal Rules) Directions SI 13-10 rule 86(1)

Cases cited (23)

  • Kamurasi Charles v Accord Properties Limited & Christopher Sekisambu (Supreme Court Civil Appeal No. 3 of 1996)
  • Banco Arabe Espanol v Bank of Uganda [1999] UGSC 1
  • Eng. Pascal R Gakyaro v Civil Aviation Authority [2007] UGCA 4
  • Bongomin Richard v Uganda [2014] UGCA 45
  • Kendall v Hamilton (1878) 4 App Cas 504
  • Marks and Spencer PLC v BNP Paribas Securities Services Trust Co (Jersey) Ltd [2016] AC 742
  • Charles Lwanga v Centenary Rural Development Bank (Court of Appeal Civil Appeal No. 30 of 1999)
  • Obiga Mario Kania v Electoral Commission and Wadri Kassiano Ezati (Election Petition Appeal No. 4 of 2011)
  • Mbogo v Shah [1968] EA 93
  • Kiiza Augustine v Katusabe Vincent [2018] UGGCLD 25
  • Maneka Gandhi v Union of India [1978] 1 SCC 248
  • Odongo Kresenyio & Anor v Ojera Cypriano (Civil Appeal No. 0053 of 2017)
  • Kibimba Rice Ltd v Umar Salim (Supreme Court Civil Appeal No. 17 of 1992)
  • Kasedde v Wambedde & Ors (Civil Suit No. 459 of 1998) [2004] UGHC 56
  • Elliott v Boynton [1924] 1 Ch 236 (CA)
  • Clifton Securities Ltd v Huntley & Ors [1948] 2 All ER 283
  • Uganda Revenue Authority v Stephen Mbosi (Supreme Court Civil Appeal No. 20 of 1995)
  • James Serubiri & Fred Musisi v Uganda (Criminal Appeal No. 5 of 1990)
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Pandya v R [1957] EA 336
  • Okeno v Republic [1972] EA 32
  • Katongole Godfrey v Kafeero Francis [2017] UGCA 130
  • Bishop Balagadde Ssekadde and 5 others v Wamala [2019] UGCA 20
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.