THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA
(CORAM: ODOKI, CJ., TSEKOOKO, KAROKORA, MULENGA, AND KATUREEBE JJ.SC.).
CIVIL APPEAL NO. 17 OF 2001
MPUNGU & SONS TRANSPORTERS LTD APPELLANT
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