Wakilii

Bishop Balagadde Ssekadde & 5 Others v Wamala & 2 Others (Civil Appeal No. 0027 of 2011)

Court of Appeal · [2019] UGCA 2073 · 2019 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from High Court judgment declaring fraudulent transfer of land and ordering cancellation of title
Decision
Trial court judgment set aside and matter remitted to the High Court for a retrial

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that where a judge orders a whole civil trial to be conducted entirely on affidavit evidence, denying witnesses the opportunity to be cross-examined, the procedure violates Order 18 and Order 19 rule 1 of the Civil Procedure Rules. A civil trial must be conducted orally; affidavits may prove particular facts but cannot substitute for an oral hearing where cross-examination is bona fide required. Because the successor trial judge tried the case de novo solely on affidavits without permitting cross-examination, the trial was incomplete and irregular and the resultant judgment could not stand. The appeal was allowed and a retrial ordered, with each party bearing its own costs of the appeal.

Outcome

Trial court judgment set aside and matter remitted to the High Court for a retrial

Facts

The respondents, beneficiaries of the estate of the late Zubaili Sebulo, sued the appellants (administrators of the estate of the late E.N. Serunjogi) claiming that Serunjogi fraudulently transferred land comprised in Kyadondo Block 194 Plot 111 into his own name in breach of trust. The land had been registered in Sebulo's name and, it was alleged, Sebulo deposited the duplicate certificate of title with his close friend Serunjogi for safe custody. The appellants contended that Serunjogi had purchased the land for valuable consideration and merely allowed Sebulo to remain on it. The trial commenced orally before one judge who heard several witnesses. After transfer of the case to a successor judge, that judge tried the case de novo by directing both parties to file affidavit evidence, then delivered judgment for the respondents, finding fraud, ordering cancellation of the title, restoration of Sebulo's name, and awarding general damages of UGX 5,000,000 and costs. The appellants appealed.

Issues

  1. Whether the trial court's directive that the parties file affidavit evidence, denying witnesses the opportunity for cross-examination, resulted in a valid trial conducted in accordance with the law.
  2. Whether the resultant judgment of the trial court could stand where the trial was conducted contrary to Order 18 and Order 19 rule 1 of the Civil Procedure Rules.

Orders

  • Appeal allowed.
  • Judgment of the trial court set aside.
  • A retrial is ordered.
  • Each party to bear its own costs of the appeal.
  • Costs below to abide the outcome of the retrial.

Rules and key headnotes

Civil Procedure — Conduct of Trial — Requirement for Oral Hearing
A civil trial must be conducted orally with witnesses called in person and examined in open court under Order 18 of the Civil Procedure Rules; a judge cannot lawfully conduct an entire trial solely on affidavit evidence.
Civil Procedure — Affidavit Evidence — Limits under Order 19 rule 1
Order 19 rule 1 of the Civil Procedure Rules authorises a court to order that a particular fact be proved by affidavit, but no such order may be made where a party bona fide desires the production of a witness for cross-examination and that witness can be produced.
Civil Procedure — Successor Judge — Continuation of Part-Heard Trial
Under Order 18 rule 11(1) of the Civil Procedure Rules, a successor judge may deal with evidence already taken by a predecessor and proceed with the suit from the stage at which the predecessor left it, rather than abandoning that evidence to try the case entirely on affidavits.
Civil Procedure — Irregular Trial — Consequences for Judgment
Where a trial is conducted contrary to the mandatory procedure for taking evidence, rendering it incomplete and irregular, the resultant judgment cannot stand and a retrial must be ordered, even where the parties did not object to the procedure during trial.

Legislation cited (12)

Cases cited (22)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Bishop Balagadde Ssekadde & 5 Others v Wamala & 2 Others (Civil Appeal No. 0027 of 2011) [2019] UGCA 2073 (2 December 2019)
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.