‘THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA HOLDEN AT KAMPALA CORAM: KISAAKYE, ARACH-AMOKO, OPIO-AWERI, MWONDHA, TIBATEMWA-EKIRIKUBINZA JJSC. CIVIL APPEAL NO. 08 OF 2018 KAMO ENTERPRISES LIMITED. VERSUS KRYSTALLINE SALT LIMITED... (Appeal arising from the Judgment of the Court of Appeal delivered by Kavuma, Barishaki and Mugamba JJA) JUDGMENT OF MWONDHA, JSC This is a second appeal. The appellant having been dissatisfied with the decision of the Court of Appeal, he appealed on four grounds as embodied in the Memorandum of Appeal as follows: - 1. The learned Justices of the Court of Appeal erred in law and fact in failing to re-evaluate and appraise all the evidence in the trial court and subject it to a fresh scrutiny hence came to a wrong conclusion that the supply of salt to the appellant was not in dispute contrary to the appellant's pleadings and evidence. 2. The learned Justices of Court of Appeal erred in law and fact when they proceeded with hearing the appeal basing on a record of appeal that did not have the appellant's evidence in chief, thus reaching a wrong conclusion that the respondent had supplied salt to the Appellant, 3. The learned Justices of Court of Appeal erred in law and fact when they failed to properly apply the principle of evidential burden of proof thus reaching a wrong conclusion upholding the learned trial Judge’s decision on evidential burden of proof. 4. The learned Justices of Court of Appeal erred in law and fact when they failed to allow the appellant's counter claim when there was overwhelming evidence adduced by the defendant/ appellant not challenged by the plaintiff/ Respondent proving the said counter claim on balance of probabilities.BACKGROUND ‘The respondent instituted a summary suit in the High Court for recovery of the sum of USD 105,601 being the sum that was allegedly not paid by the appellant company for salt supplied to it. The appellant successfully applied for leave to appear and defend the suit claiming that the respondent’s suit was based on spurious documents and that it equally had a counter claim of USD 5,000 against the respondent company for its alleged failure to supply salt worth the said sum that was paid to it. Prior to commencement of hearing of the suit, the appellant applied to amend its counterclaim for the sum of USDS5, 000 to USD357, 000. The amendment was granted with consent of both parties though no new pleadings were filed. The trial Judge entered judgment against the appellant company, dismissed its counter claim and held that it was liable to pay the sum of US. D 105,361 to the respondent. Being dissatisfied with the Judgment of the trial Court, the appellant appealed to the Court of Appeal. The Court of Appeal dismissed the appellant’s appeal and upheld the judgment of the trial Court hence this appeal. REPRESENTATION ‘The appellant was represented by Counsel Okalang Robert together with Counsel Kevin Amojong and Counsel Byamukama Gregory all of Messrs Okalang Law Chambers. The respondent was represented by Counsel Noah Mwesigwa of Shonubi Musoke & Co. Advocates. APPELLANT’S SUBMISSIONS GROUNDS 1& 2 The appellant's counsel argued grounds 1& 2 jointly. Counsel submitted that the cardinal role of the 1* appellate court is to re-evaluate the evidence which was before the trial court and failure to do so renders the judgment liable to be set aside. Counsel relied on the case of Banco Arab Espanyol Vs Bank of Uganda SCCA No. 08 of 1998. Counsel averred that the Court of Appeal only considered the respondent’s case and never at all considered the appellant’s case since its witness statements (evidence) were missing from the record of appeal. Counsel argued that it is the duty of the appellate Court, if it finds the record lacking to call for and receive further information / details from the trial Court about those proceedings.Counsel argued that the evidence of the appellant before the trial Court was to the effect that the business dealings between the parties was purely based on advance payment and there were therefore no supplies on credit by the respondent. Counsel averred that this vital evidence was not considered by the learned Justices of the Court of Appeal. He further argued that in light of Rule 31 of the Judicature (Court of Appeal Rules) directions, the Justices of the Court of Appeal having discovered that the evidence in chief of the appellant’s witnesses was missing from the record, they owed a duty to the appellant in the interest of justice to call for a report on the witness statement, and re-evaluate the same in order to avoid a miscarriage of justice. Counsel relied on the case of Nicholas Roussos V Gulamu Hussein Habib Virani and Others SCCA No. 0 of 1993, He submitted that as a result of the failure to re-evaluate the appellant’s evidence, the learned Justices of the Court of Appeal came to a wrong decision that the respondent supplied salt to the appellant and the latter did not pay for the same. GROUND 3 In support of ground three, Counsel submitted that Section 101-106 of the Evidence Act, Cap 6 impose the burden of proof on the party who alleges the facts to exist and the standard of proof is on the balance of probabilities. Counsel argued that in the present suit, the respondent had the burden to prove its case on the balance of probabilities which it failed to do and instead the trial Judge shifted the burden to the appellant (defendant), a decision which the learned Justices of the Court of appeal upheld. J Counsel relied on the cases of Richard Evans & Co. Ltd V Astley (19U) AC 674 at 687 and Bradshaw V Mcewans Property Ltd (1959) 101 C.L.R 298 at 208 for the position that the law does not authorize Court to choose between guesses where the possibilities are not limited on ground that one guess seems more likely than another. Counsel submitted further that the evidence of the parties clearly showed that the terms of the contract were advance payment as opposed to credit which was the basis of the respondents’ claims. Counsel submitted it was the duty of the respondent to prove to Court how the terms of the contract shifted from advance to credit but instead the Court shifted the burden to the appellant (defendant) to prove that it had actually paid for goods supplied on credit.He argued that the case of J.K Patel V Spear Motors Ltd, S.C.C.A No. 4/1991 relied on by the Court of Appeal to reach its decision is distinguishable from the present case. According to counsel, in the JK Patel case, the parties conducted their business in a manner that was quite informal and payments were not acknowledged by giving receipts whereas in the present case, invoices were issued for every transaction, Counsel also submitted that the lower Court erroneously relied on PW1’s oral evidence in spite of the existance of documentary evidence to the contrary. He argued that the respondent witnesses failed to satisfactorily explain why in December 2003, they were demanding for USD 118,000 and in the suit, they demanded USD 105,601. Counsel wondered why the learned Justices of the Court of Appeal never questioned this discrepancy and inconsistency yet when it came to the appellant (defendant) they questioned why he initially claimed for USD 5000 and then later changed to USD 375960. GROUND 4. Counsel faulted the learned Justices of the Court of Appeal for the finding that the appellant’s claim for USD 375960 amounted to set off or payment before an action and therefore a departure from the pleadings. Counsel argued that the appellant's claim was for refund of the money and not a set off. Counsel submitted that the appellant’s evidence proved that it had paid USD.375,960 to the respondent for salt but the same was not delivered hence the counterclaim. Counsel further submitted that DW1 in his evidence in chief clearly stated that by agreement dated 9/01/2002, he paid the respondent USD 225,000 for 5000.00 tons of refined salt, USD. 5,400.00 for 200.00 tons of cattle salt and USD 27,500 for 500,00 tons of refined salt but the same was never delivered. Counsel submitted that DW1 further testified that again on 31/10/2002, he paid Vinu on behalf of the respondent company USD 118,060 for 320 tons of 500 grams of salt, 200 tonnes of coarse salt, 240 tons of 200 grams of salt but the same was also never delivered. He further submitted that the total amount paid for the unsupplied salt was therefore USD 375,960 and documentary evidence was presented to that effect and exhibited as DEX4 & DEX7. Counsel argued that DW1’s evidence was further corroborated by the evidence of DW11. Counsel also submitted that the Court of Appeal did not consider the evidence of DW11 about the documents in issue but instead relied on the respondent’s doubted documents-EX D7 that was for another customer yet when PW1 was directed by Court to avail all the receipt books, he selectively brought a few and admitted to have left out others and as such PW1 4evidence could not be conclusively used to reach a finding that payments were not made by the appellant. Counsel argued that the appellant proved its counterclaim on a balance of probabilities and ought to have been allowed Counsel prayed that the appeal should be allowed and the judgment of the lower courts should be set aside with costs. RESPONDENT’S SUBMISSIONS Counsel started his submissions by drawing the attention of this court to the duty of a second appellate court. He submitted that the duty of the second appellate court was to appraise the inferences of fact drawn by the trial court and the court did not have the power to subject the evidence to fresh scrutiny unless it was clear that the first appellate court failed to perform its duty. Counsel averred that the second appellate court was precluded from questioning the findings of the facts of the trial court provided there was evidence to support those findings though it might think it possible or even probable that it would not have itself come to the same conclusion. It could only interfere where it considered that there was no evidence to support the finding of fact, that being a question of law. Counsel relied on Rule 32(2) of the Judicature (Supreme Court Rules) Directions and Betuco (U) Ltd & anor Vs Barclays Bank of Uganda Ltd & 3 others, SCCA No. 01 of 2017. He submitted that where in some grounds in the appeal, what is being questioned is a matter of fact, an appellate court should be mindful of the advantages enjoyed by the trial Judge who saw and heard the witnesses and was in a comparatively better position than the Court of Appeal to assess the significance of what was said, how it was said and what was not said. Counsel relied on Kenya Commercial Bank Ltd & another Vs Samuel Kamau Macharia & others CACA No, 181/2004 (K) 15 and 16. He further submitted that when a question arises like in some grounds in this appeal as to which witness is to be believed rather than another and that question turns on the manner of demeanour, the Court of Appeal is always guided by the impression made on the Judge who saw the witness. Counsel relied on the case of Fr. Narsensio Begumisa & others Versus Eric Tibebaga SCCA No.17/2000. He raised a preliminary objection and contended that ground 3 of the Memorandum of Appeal was in breach of Rule 86 of the Supreme Court Rules. Counsel argued that the ground was too general and yet grounds of appeal are required to be specific and point out the nature of the grievance 5with precision, specifying the points which are alleged to have been wrongly decided. Counsel relied on the case of Betuco (U) Ltd & another Vs Barclays Bank of Uganda & 3 others (supra) where this Court struck out the grounds of appeal which did not comply with Rule 86 of the Supreme Court Rules. He prayed that ground 3 of the Memorandum of Appeal be struck out on the ground that it is too generalized. GROUND 1 Counsel submitted that the Court of Appeal rightfully concurred with the trial Judge that salt had been supplied to the appellant. Counsel argued that the duty of the Court of Appeal as the first appellate court was to review and re-evaluate the evidence before the trial Court and reach its own conclusions taking into account the fact that the appellate court did not have the opportunity to hear and see the witnesses testify. Counsel submitted that the Court of Appeal had a clear certified record of proceedings which brings out the evidence adduced and was alive to its duty and properly performed it. Counsel relied on Rule 30(1) of the Judicature (Court of Appeal) Rules, Fr. Narsensio Begumisa & others Versus Eric Tibebaga SCCA No. 17/2000 He submitted that there was sufficient material to support the finding by the two lower courts that salt had indeed been supplied to the appellant and there was no payment for it. This included; the existance of the contractual dealings between the parties which was an agreed fact, documentary evidence of placement of orders by the appellant to the respondent for the supply of salt and this was contained in Exhibits P1 (a-f), P3, (a),(b),(c),(d) , Exhibits P4 and P5. Counsel further submitted that the supply of salt was never an issue but rather whether since the invoice indicated payment was to be in advance, the appellant had paid for all the salt. Counsel argued that on the above basis, the Court of Appeal cannot be faulted for coming to the conclusion that salt had indeed been supplied. GROUND 2 Counsel submitted that the Court of Appeal cannot be faulted for relying on the record of Appeal without the appellant’s evidence in chief. He argued that the appellant had the duty to prepare the record of appeal to the Court of Appeal and this duty cannot be delegated to the Court. Counsel relied on Rule 83 of the Judicature (Court of Appeal) Rules and argued that the 6record was prepared and filed by the appellant without the witness statements. Counsel was emphatic that the record was certified by the appellant to be correct in accordance with Rule 83(7) of the Court of Appeal Rules and at no point did counsel for the appellant while arguing the appeal refer to, introduce or rely on these witness statements. It is the Court in exercising its mandate that noted that the appellant’s appeal was compiled in a shoddy manner. Counsel argued that had counsel felt the need for witness statements, he had an option of filing a supplementary record of appeal to introduce the witness statements into the record of appeal before the Court of Appeal in accordance with Rule 86 of the Judicature (Court of Appeal) Rules. He argued that to blame the Court of Appeal in this regard is uncalled for and misplaced. Counsel further submitted that there is no requirement that a full record must be before the appellate court for there to be an evaluation of the evidence. Counsel averred that where the court forms the opinion that all the available material on record is sufficient to take the proceedings to its logical end, the court may proceed with the partial record as long as none of the parties to the appeal is prejudiced. Counsel relied on the case of Jacob Mutabazi Vs The Seventh Day Adventist Church Civil Appeal No. 088 of 2011. Counsel argued that there was sufficient material before the Court of Appeal upon which a decision was made in the absence of the witness statements. Counsel invited Court to examine the record of Proceedings Vol 1 and 2 specifically from pages 388-686 and lines 15-20 Vol 4 of the Record of Appeal. He submitted that all the vital documents necessary in resolving the matters in controversy which was whether or not the appellant had paid for the salt supplied, were all before the Court and these included the original and amended plaint, the written statement of defence, the record of amendment of the counter claim, the Application for leave to appear and defend and the exhibits including many documents that the appellant was allowed to tender. Counsel argued that the appellant’s witnesses were extensively cross-examined on almost each and every aspect of their witness statements and documents relied upon by the respondent’s counsel and that record was before the Court of Appeal. He further submitted that there was no prejudice occasioned to the appellant despite having been responsible for the omission of the witness statements.GROUND 3 Counsel submitted that the Court of Appeal rightfully and correctly applied the law on evidential burden and came to the right conclusion. Counsel submitted that the respondent adduced evidence to prove that orders were received and salt delivered to the appellant and the same were not paid for. He argued that that the appellant contended that the payments were made in advance, however, the evidence revealed that: the term “advance payments” used in the respondent’s statements was a misnomer as indeed goods were supplied on credit to the appellant and this was elaborately borne out by the testimony of PW2. Counsel averred that the term “advance” was a programme in the computer that remained unchanged even though the appellant’s payment terms had changed from advance to credit. He submitted that the respondent adduced evidence through Exhibits P1 (a)-() and P7 to show that indeed orders were made but the statement of account showed that there were outstanding payments. Counsel averred that the appellant never disputed this but rather insisted that it had paid in advance and had proof which was never produced discharged. He averred that upon proof of delivery of the goods, the evidential burden of proof shifted to the appellant to prove the alleged payments made which it miserably failed to do. Counsel relied on Phipson on Evidence 12% Edition, Page 6 para 91; J.K Patel V Patel Motors Limited SCCA No. 4/1991. Counsel argued that whereas the appellant claimed to have paid for the salt, they failed to adduce any plausible evidence to prove the same, that the alleged cash payments were a myth and not backed by any empirical evidence, that the receipts allegedly issued by the respondent, relied on by the appellant were denied by the respondent and the two lower Courts found they were forgeries, and that the appellant witness gave testimony that was untruthful as found by the trial Court. He submitted that the Court of Appeal was alive to the principles on evidential burden of proof and correctly applied them and that conclusion cannot be faulted. GROUND 4. He submitted that the Court of Appeal rightfully came to the conclusion that the appellant’s counter claim was not proved and this finding ought to be upheld by this Court. BeHe argued that the appellants counter claim was not supported by any Cogent documentary proof and the Court of Appeal correctly declined to entertain it. Counsel relied on Seetion 101 of the Evidence Act, Cap 6. He further submitted that the amendment to the written statement of Defence in as far as related to the amounts in the counterclaim was made orally as to the amount and the pleadings never explained the nature and circumstances of this enhanced claim, He argued that the appellant’s counter claim was challenged by the respondent and the Court of Appeal came to the right conclusion that the same was not proved because; the respondent's witnesses provided basis for the strange documents that the appellant sought to rely upon one being for tax purposes and the others being outright forgeries as confirmed by the handwriting expert PW3; some of the receipts the appellant chose to allege originated from the respondent did not correspond with the carbon copy receipt books submitted by the respondent and they were outright forgeries as clarified by PW1; there was no evidence adduced to prove the alleged payment by the appellant of USD257,900; the purported receipt EXH D9 allegedly issued for the above sum was an afterthought and mere conjecture and the same was found by the two lower courts to have been a forgery; there was no money payable to the respondent under Exhibit P6/D4 which is the foundation of the appellant’s first limb of the counterclaim. Counsel argued that the evidence adduced by the parties revealed that the sale agreement was only intended to enable the appellant to obtain an import license from URA. Counsel submitted that the second claim of USD 118,060 contained in Exhibits D6, 7(iv) and D5 was also not proved because the alleged cash Payments were not proved by any cogent/empirical evidence, the alleged receipts in Exhibits P8 (a) & (b) were examined by the two lower courts and they were found to be forgeries and the signature on the receipt for USD118, 060 is clearly at odds with the signatures of PW1 on the invoices. He argued that on the above basis, this court should find that the appellant’s counter claim was not proved to the required standard and the two lower courts rightfully dismissed the same. Counsel prayed that this Appeal should be dismissed with costs to the respondent. The appellant's counsel filed submissions in rejoinder which this Honourable court has considered.CONSIDERATION OF THE APPEAL This is a second appeal and the duty of a second appellate court was settled by this Court in several cases. In Kifamunte Henry Vs Uganda Criminal Appeal No. 7 of 1997, the Court stated as follows: The first appellate court has a duty to review the evidence of the case and to reconsider the materials before the trial judge. The appellate Court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. On second appeal, it is sufficient to decide whether the first appellate court on approaching its task, applied or failed to apply such principles... (Emphasis added) The Court further held: On a second appeal, a second appellate court is precluded from questioning the findings of fact of the trial court, provided that there was evidence to support those findings, though it may think it possible, or even probable, that it would not have itself come to the same conclusion, It can only interfere where it considers that there was no evidence to support the finding of fact, this being a question of law. Also see Betuco (U) Ltd & anor Vs Barclays Bank of Uganda Ltd & 3 others, SCCA No.01 of 2017). Iam guided by the above principles in determining this appeal. GROUNDS 1&2 The appellant’s counsel argued grounds 18 2 jointly and | will resolve them in like manner. Rule 87 (1) of the Judicature (Court of Appeal Rules) Directions SI 13-10 sets out the contents of the record of Appeal for purposes of an appeal from the High Court in its original jurisdiction. Rule 87(8) further provides that the said record of Appeal shall be certified to be correct by the appellant. It specifically states as follows: Each copy of the record of appeal shall be certified to be correct by the appellant or by any person entitled under Rule 23 of these Rules to appear on his or her behalf At page 1502 of the record of Appeal, there is a certificate of correctness by the appellant’s counsel M/S Okalang Law chambers certifying that the record of Appeal before the Court of Appeal was correct. 10In-spite of the above certificate of correctness by the appellant, the appellant’s witness statements were missing from the record. In its Judgment, the Court of Appeal observed as follows: Surprisingly, although it is the appellant’s counsel who prepared the record of Appeal, the witness statements of the appellant’s witnesses in the lower court were not included in the Record of Appeal. The proceedings in the record indicate that the appellant’s three witnesses were cross examined and their witness statements were admitted on record in lieu of examination in chief. We are therefore unable to appreciate why the appellant’s counsel would omit such vital and material documentation from the Record of Appeal thereby attempting to disable us from subjecting the entire evidence before the lower court to an exhaustive scrutiny. We have presumed that this serious oversight on the part of counsel was not intentional but a result of careless preparation of the Record of Appeal. If at all it was intentional, it would border on abuse court process. We have all the same, considered the appellant’s case, in the interest of justice taking into account all the relevant material including the affidavits deponed during the Application for leave to appear and defend the main suit. In Jacob Mutabazi Versus the Seventh Day Adventist Church Civil Appeal No. 088 of 2011, the Court of Appeal had occasion to pronounce itself on such omissions and this is what it had to say: The purpose of Rule 87/8) is to signify the close of pleadings for the appellant and to allow the Court to process the appeal for hearing and for the respondent to prepare to defend the appeal in its entirety. ‘Thereafter any changes to cure the record already filed should be done under Rule 90 of the Rules of this Court either by the appellant or the respondent filing a supplementary record. Rule 90 provides: "... (1) If @ respondent is of opinion that the record of appeal is defective or insufficient for the purposes of his or her case, he or she may lodge in the appropriate registry four copies of a supplementary record of appeal containing copies of any further documents or any additional parts of documents which are, in his or her opinion, required for the proper determination of the appeal. (2) The respondent shall, as soon as practicable after lodging a supplementary record of appeal, serve copies of it on the appellant 1and on every other respondent who has complied with the requirements of rule 80 of these Rules. (3) Where an appellant desires to lodge a supplementary record of appeal in the court, the appellant may, at any time, lodge in the registry four copies of the supplementary record of appeal, and shall as soon as practicable thereafter, serve copies of it on every respondent who has complied with the requirements of rule 80 of these Rules. (4) A supplementary record may be lodged to cure defects in the original record of appeal due to want of compliance with rule 87 of these Rules. (5) A supplementary record of appeal shall be prepared as nearly as may be in the same manner as a record of appeal..." In this case no supplementary record was filed. Indeed, there is nothing on record to suggest that the appellant, who on appeal wished to rely on the proceedings of the Locus in quo, formally asked the trial Court to provide the record of the Locus in quo. It was the appellant's duty to pursue the said record of the Locus in quo, put it on record then criticize it for not being properly taken. That is what vigilant parties and lawyers do. To set the ground that the trial Judge erred in law and fact by "blatantly" failing to conduct a proper proceeding at the visit of the Locus in quo in absence of the record is clearly an unfair and uncalled for attack on the trial Judge. The lawyers of old had a Latin ~* adage for th: "Omnia praesumuntur legitime facta donee probetur in contrartum..." ‘That is, all acts are presumed to have been legitimately done, until the contrary is proved. In this case without the record, which the appellant in our view should have pursued, the appellant cannot now at this late stage be heard to say the record of the Locus in quo was blatantly not properly conducted. If the absence of the record of Locus in quo would Prejudice his case then the appellant had 4 years to cure this which he did not. We accordingly answer the first ground in the negative and accordingly decline to Order a re-hearing. In this case as well, if the witness statements which were missing from the record were material to the appellant’s case, he had the option of filing a supplementary record of appeal which he did not do. The memorandum and 1record of Appeal in the Court of Appeal were filed on 22" July 2014 and the hearing started on 3°! April 2017. In-spite of the three-year lapse between filing of the record of appeal and hearing, the appellant saw no need to file a supplementary record of appeal. In his submissions before the Court of Appeal, the appellant’s counsel neither referred nor relied upon the witness statements he now vehemently faults the Court of Appeal for not considering. In the circumstances of this case, I am unable to fault the Court of Appeal for proceeding with the appeal in the absence of the appellant’s witness statements. In any case, the Court cautioned itself and formed the conclusion that there was sufficient material to determine the appeal. ‘The appellant’s counsel further submitted that contrary to the two lower courts’ findings, it was not an agreed fact that there was supply of salt to the appellant. There is a concurrent finding of fact by the lower courts that salt was indeed supplied to the respondent. At pages 10 and 11 of its judgment in Kifamunte Henry case (supra) this Court held— Once it has been established that there was some competent evidence to support a finding of fact, it is not open, on second appeal to go into the sufficiency of that evidence or the reasonableness of the finding. Even if a Court of first instance has wrongly directed itself on a point and the first appellate Court has wrongly held that the trial Court correctly directed itself, yet, if the Court of first appeal has correctly directed itself on the point, the second appellate Court cannot take a different view R. Mohamed All Hasham vs. R (1941) 8 E.A.C.A. 93. In Nazmudin Gulam Hussein Viram Vs Nicholas Roussos, Supreme Court Civil Appeal No. 1 of 2006, it was held that a second appellate court will depart from the concurrent findings of fact by the lower courts only if special circumstances justified it in doing so. The question then becomes whether there are there any special circumstances to justify this court to depart from the concurrent findings of fact by the lower courts, The appellant’s counsel submissions were unhelpful on this issue as they ended up addressing a separate issue of whether or not there was a credit supply. Uncontroverted evidence by the respondent in the trial court contained in Exhibits Pl (a-f), P3 (a), (b), (c) and (4) clearly showed that salt was supplied to the appellant’s ware house. 1 am therefore unable to fault the two lower courts for the finding that salt was ordered for by the appellant and delivered by the respondent at the appellant’s ware house. Grounds 1 & 2 accordingly fail. 13GROUND 3 On this ground, the appellant’s counsel faulted the Court of Appeal for failing to properly apply the principle of evidential burden of proof thus reaching a wrong conclusion upholding the learned trial Judge’s decision on the same. The respondent’s counsel raised a preliminary objection that the ground was too generalized and offended Rule 86 of this Court’s Rules. However, Rule 86 deals with preparation and service of supplementary record. I believe the Rule counsel was referring to is Rule 82(1). It provides as follows: A memorandum of appeal shall set forth concisely and under distinct heads without argument or narrative, the grounds of objection to the decision appealed against, specifying the points which are alleged to have been wrongly decided, and the nature of the order which it is proposed to ask the court to make. I do not find the ground too generalized as contended by the respondent’s counsel, The appellant faulted the Court of Appeal for erring on evidential burden of proof. In his submissions, counsel for the appellant argued that the respondent had the burden to prove its case on the balance of probabilities which it failed to do and instead the trial Judge shifted the burden to the appellant (defendant), a decision which the learned Justices of the Court of appeal upheld. Counsel averred that the evidence of the parties clearly showed that the terms of the contract were advance payment as opposed to credit which was the basis of the respondents’ claims. On the other hand, the respondent's counsel maintained that the Court of Appeal rightfully and correctly applied the law on evidential burden and came to the right conclusion. Counsel submitted that the respondent adduced evidence to prove that orders were received and salt delivered to the appellant and the same were not paid for. In regard to the burden of proof, the Trial Judge held as follows: The defendant argued that the burden of proving that the parties had changed the terms of payment from “advance” to “credit” was upon the plaintiff who alleges so. The plaintiff adduced evidence (Exhibits P3 (a), P3 (b), P3 (c) & P3 (d), P7 and the testimonies of PW1 and PW2) to support its allegation that it supplied goods to the defendant which was not fully paid for. The burden of proof at that point shifted to the defendant to produce proof of payments as alleged by it. That burden does not shift to the plaintiff until such proof is produced by the defendant. The defendant heavily relied on the invoices which according to it clearly stated that the terms of payment was 14“advance” and argued that it had made advance payments. No other statement of accounts was produced by the defendant to counter Exhibit P7 by indicating the payments made and the supplies received. In affirming the above passage of the trial Judge, the Court of Appeal observed as follows: In the passage cited above, the trial Judge was referring to the evidential burden of proof earlier explained in the authorities. In her findings, the evidential burden shifted to the appellant company to prove that it had actually made payments for supplies made and no such proof of payment was ever presented. In light of the position of the law regarding the shifting of evidential burden of especially in proving disputed payments, we are unable to fault the trial Judge. She applied the evidential burden of proof correctly and in accordance with the authorities. In my view, counsel seems to be mistaking legal burden of proof with evidential burden of proof. Legal burden of proof is a burden fixed by law and is a fixed burden of proof (See Cross & Tapper on Evidence-8t Edition at page 121). In civil cases, the standard is on a balance of probabilities. On the other hand, evidential burden of proof is the burden of adducing evidence to prove a fact in one’s favour. While the evidential burden keeps shifting, the legal burden never shifts. (See Phipson Law of Evidence, 14 Edition). Section 103 of the Evidence Act, Cap 6 provides: ‘The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any Jaw that the proof of that fact shalll lie on any particular person. In this case, once the respondent adduced evidence showing that it supplied goods to the appellant, the burden shifted to the appellant to prove that it actually paid for the goods and it was not enough to simply state that the invoice indicated the terms of payment to be advance and not credit. For those reasons, this ground fails. 15GROUND 4 The appellant’s counsel faulted the learned Justices of the Court of Appeal for failing to allow the appellant's counter claim when there was overwhelming evidence adduced by the defendant/ appellant not challenged by the plaintiff/ Respondent proving the said counter claim on a balance of probabilities. Counsel submitted that by agreement dated 09/01/2002 (Exhibit P6/D4), the appellant paid USD 257,900 for salt which was never delivered and on 31/10/2002, the appellant paid Vinu on behalf of the respondent company USD. 118,060 which was equally never delivered totalling to USD. 375,960. I have studied the contents of exhibit D4. It is a letter addressed to Uganda Revenue Authority. PW1 in his evidence at page 467-468 of the record stated that the letter was written at the request of the appellant company to assist it in getting an import license and that there is no where it shows that the money was actually paid by the appellant to the respondent. Indeed, there was no banking information relating to payment of this sum and the appellant claimed that it was paid in cash. In her analysis which we agree with, the trial Judge concluded that Exhibit P6/D4 was not a sale agreement under which any payments and deliveries were expected and the appellant’s claim that it paid money under the “agreement” is unbelievable. Regarding the claim of USD 118,060, the appellant relied on Exhibits D6, 7[iv) and DS. Both lower courts found the documents the appellant strongly relied on to have been forgeries and counsel did not attempt to make any submission regarding this finding by Court. He instead persisted on reliance on the said documents already found to be forged. In the circumstances, I am inclined to reject the appellant's claim. This ground also fails. In the result, since all the grounds have failed, the appeal has no merit and it is dismissed with costs. DECISION & ORDERS OF COURT Since the decision of the majority Justices is four against one, the appeal has no merit; It is dismissed with costs of this court and courts below to the respondent. a l Dated at Kampala this__* day of OClohon 2021. Burerld U0 MWONDHA JUSTICE OF THE SUPREME COURT 16 &THE REPUBLIC OF UGANDA IN THE SUPREME COURT AT KAMPALA [CORAM: KISAAKYE; ARACH-AMOKO; OPIO-AWERI; MWONDHA; TIBATEMWA-EKIRIKUBINZA] CIVIL APPEAL NO. 08 OF 2018 KAMO ENTERPRISES LIMITED :: VERSUS KRYSTALLINE SALT LIMITED (Appeal from the Judgment of the Court of Appeal before 8.B.K. Kavuma, DCJ, Cheborion Barishabaki, JA and Paul Kahaibale Mugamba JA dated 24 February 2018 in Civil Appeal No. 120 of 2014) JUDGMENT OF DR. KISAAKYE, JSC (DISSENTING) Ihave had the benefit of reading in draft the lead judgment of Mwondha, JSC dismissing this appeal. My other colleagues on the Coram agree with her Judgment and Orders. With due respect to my learned colleagues, I am unable to agree with the lead Judgment. On the contrary, I would allow the appeal based on the law cited and discussed and the reasons I will give in this Judgment. Kamo Enterprises Limited (hereinafter referred to as the appellant) filed this appeal against the Judgment of the Court of Appeal in Civil Appeal No. 120 of 2014. The brief background to this appeal is as follows:Krystalline Salt Limited (hereinafter referred to as the respondent) filed H.C.C.S. No. 777 of 2004 against the appellant seeking the recovery of USD 105,601 for salt it had supplied to the appellant. ‘The appellant denied liability and contended that it had paid cash for all the salt it purchased from the respondent and that it had not made any arrangements for credit purchases. The appellant further filed a counterclaim against the respondent for USD 375,960 for salt products it claimed to have paid for in advance, but which products were never delivered by the respondent. On 10% September 2013, Hellen Obura J entered Judgment for the respondent for USD 105,601; interest of 8% per annum from the date of filing the suit until payment in full and costs. The Judge dismissed the appellant’s counterclaim. On 224 July 2014, the appellant appealed to the Court of appeal on the following grounds: 1. That the Hon. Judge erred in law and in fact when she failed to evaluate evidence on the record and held that the Plaintiff (now Respondent) had proved its case as against the Defendant (now Appellant) when Plaintiff evidence was full of lies and unreliable. 2. That the Hon. Trial Judge erred in law and in fact when she held that payment terms in the contract between the parties was both “advance” and “credit”. 3. That the Hon. Trial Judge erred in law when she shifted the burden of proof to the Defendant to prove the Plaintiff's claim in a civil claim.4. That the Hon. Trial Judge erred in law when she failed to find that the Plaintiff's Account Statement was a hoax or an afterthought by the Plaintiff and thus reached a wrong decision to award the Plaintiff US $ 105,601 and interest of 8% per annum. 5. That the Hon. Trial Judge erred in law and in fact when she held that the Defendant had breached the contract. 6. That the Hon. Trial Judge erred in law in fact when she awarded general damages to the Plaintiff without any proof and/or jurisdiction. 7. That the Hon. Trial Judge erred in law and in fact when she exhibited bias against the Defendant’s 1s witness she had not seen and thus causing miscarriage of justice. 8. That the Hon. Trial Judge erred in law and in law and in fact when she held the Appellant’s claims of US $ 257,900 and its US $118,060 in the counterclaim, were false.” On 24 November 2018, the Court of Appeal upheld the Judgment of the High Court with costs to the respondent. The appellant then appealed to this Court on four grounds which I will reproduce later in this Judgment. The appellant sought for the following orders from this Court: 1. That the appeal be allowed. 2. That the Judgments of Court of Appeal and High Court be set aside with this Court reaching its own decision. 3. That the Respondent pay the Appellant’s costs in this Appeal and in the lower courts. Robert Okalang, Kelvin Amujong, and Gregory Byamukama represented the appellant, while Noah Edwin Mwesigwarepresented the respondents. Both parties filed written submissions in this appeal. Counsel for the appellant argued grounds 1 and 2 together and grounds 3 and 4 separately, On the other hand, the respondent argued all the four grounds separately. I will follow the appellant's order and consider grounds one and two together. Ground 1 of appeal was framed as follows: “The learned Justices of the Court of Appeal erred in law and fact in failing to re-evaluate and appraise all the evidence in the trial Court and subject it to a fresh scrutiny hence came to a wrong conclusion that the supply of salt to the appellant was not in dispute contrary to the Appellant’s pleadings and evidence.” On the other hand, ground 2 of appeal was framed as follows: “The Learned Justices of Court of Appeal erred in law and fact when they proceeded with hearing the appeal basing on a Record of Appeal that did not have the appellant’s evidence in chief, thus reaching a wrong conclusion that the Respondent had supplied salt to the appellant.” Submitting on ground 1 of appeal, counsel for the appellant contended that the learned Justices of the Court of Appeal only considered the respondent’s case and never considered the appellant’s defence. Counsel contended that in his witness statement, Moses Karangwa (DW1) clearly stated that the appellant’s business dealings with the plaintiff company were purely based on advance payments. Counsel for the appellant further contended that the evidence in chief of the appellant’s witnesses was not considered by the 4learned Justices of the Court of Appeal, yet they knew about the absence of the vital evidence. Counsel for the appellant contended that having discovered that the evidence in chief of the appellant’s witness statements was missing from the record, the Justices of Appeal owed a duty to the appellant, in the interest of justice to call for a report on the witness statements. Counsel further submitted that the duty of the first appellate Court is to evaluate the evidence to avoid a miscarriage of justice and that the learned Justices of Appeal should have borne this duty in mind when they were deciding its appeal. Submitting on ground 2 of appeal, counsel for the appellant relied on Banco Arab Espanol vs Bank of Uganda, S.C.C.A No. 8 of 1998 and contended that the role of the first appellate Court is to re-evaluate the evidence. Counsel further submitted that the Court’s failure to re-evaluate the evidence would lead to that judgment to be set aside. Counsel further contended that the duty of the lower Court is to prepare the record of all proceedings and avail the same to the appellant. Counsel further contended that the Registrar of the High Court certifies the correctness of the record. Counsel further contended that the appellant prepares the record based on the record of proceedings and if the record of appeal is wanting, it is the duty of the appellate Court to call for and receive further information or details from High Court about those proceedings.On the other hand, counsel for the respondent contended that the Court of Appeal rightfully concurred with the trial Judge that the salt had been supplied to the appellant. Counsel contended that it was the duty of the Court of Appeal as a first appellate Court to review and re-evaluate this evidence before the trial Court and to reach its own conclusions. In so doing, the Court was required to take into account the fact that the appellate Court did not have the opportunity to hear and see the witnesses testify. Counsel contended that the Court of Appeal had a clear certified record of proceedings which brought out all the evidence that had been adduced and that the learned Justices of Appeal were alive to this duty which they properly performed. Counsel for the respondent further contended that there was sufficient material on record to support the finding by the two lower Courts that the salt had indeed been supplied to the appellant and there was no payment for it. Counsel contended that the supply of salt was never an issue. Rather, the appellant's argument had been that they had paid in advance for the salt since the invoice indicated payment was to be in advance. Submitting on ground 2 of appeal, counsel for the respondent contended that the record of appeal was certified by the appellant to be correct and at no point did counsel for the appellant referto, introduce or rely on the witness statements while arguing the appeal. Counsel further contended that it is Court of Appeal that noted that the appellant’s record of appeal had been compiled in a shoddy manner. Lastly, counsel for the respondent contended that the appellant’s witnesses were extensively examined on the aspects in their witness statements and the documents relied upon to cross examine the appellant’s witnesses was before the Court of appeal. Consideration of the appeal The appellant is faulting the Justices of Appeal for (a) having failed in their duty to re-evaluate and re-appraise the evidence in the trial Court and for having arrived at a wrong decision; and (b) having erred when they heard the appellant’s appeal based on a record that did not have the applicant’s evidence in chief. The jurisdiction of the Court of Appeal is provided for under Article 134(2) of the Constitution, which provides as follows: “An appeal shall lie to the Court of Appeal from such decisions of the High Court as may be prescribed by law” Furthermore, section 10 of the Judicature Act also provides as follows: “10. Jurisdiction of the Court of Appeal. An appeal shall lie to the Court of Appeal from decisions of the High Court prescribed by the Constitution, this Act or any other law.”‘The Court of Appeal has a duty to re-evaluate the evidence considered by the Trial Court and reach its own conclusion. Section 11 of the Judicature Act provides as follows: “11. Court of Appeal to have powers of the Court of original jurisdiction. For the purpose of hearing and determining an appeal, the Court of Appeal shall have all powers, authority and jurisdiction vested under any written law in the Court from the exercise of the original jurisdiction of which the appeal originally emanated.” Rule 88 of the Judicature (Court of Appeal Rules) Directions further provides as follows: “Service of Memorandum and record of appeal (1)The appellant shall, before or within seven days after lodging the memorandum of appeal and the record of appeal in the registry, serve copies of them on each respondent who has complied with the requirements of rule 80 of the rules. (2)The appellant shall also serve copies of the memorandum of appeal and the record of appeal on any other party to the original proceedings if the Court, at any time, of its own motion directs, and within such time as the Court may prescribe.” In Kifamunte Henry v Uganda Supreme Court Criminal Appeal No. 1 of 1997, this Court pronounced itself on the duty of the Court of Appeal as follows: “We agree that on first appeal, from a conviction by a Judge the appellant is entitled to have the appellate Court’s own consideration and views of the evidence as a whole and its own decision thereon. The first appellate court has a duty to review the evidence of the case and to reconsider the materials before the trial 8judge. The appellate Court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises as to which witness should be believed rather than another and that question turns on manner and demeanour, the appellate Court must be guided by the impressions made on the judge who saw the witnesses. However, there may be other circumstances quite apart from manner and demeanour, which may show whether a statement is credible or not which may warrant a court in differing from the Judge even on a question of fact turning on credibility of witness which the appellate Court has not seen.” Rule 30 (1) of the Judicature (Court of Appeal Rules) Directions, provides for this duty as follows: “30. Power to reappraise evidence and to take additional evidence. (1) On any appeal from a decision of a High Court acting in the exercise of its original jurisdiction, (a) re-appraise the evidence and draw interferences of fact; and (b)in its discretion, for sufficient reason, take additional evidence or direct that additional evidence be taken by the trial court or by a commissioner.” In Fr. Narsensio Begumisa and 3 Others v Eric Tibebaga, Supreme Court Civil Appeal No. 17 of 2002, this Court held as follows: “It is a well-settled principle that on a first appeal, the parties are entitled to obtain from the appeal court its own decision on issues of facts as well as of law. Although in a case of conflicting evidence the appeal court has to make due allowance and draw its own inference and conclusions.” 9Similarly, in Kanstime Brazio and Kibarikola Molly v Uganda Court of Appeal Criminal Appeal Nos. 12/2008 and 39/2009, the Court of Appeal emphasized this duty when it observed as follows: “We are therefore aware of this Court’s duty to re- evaluate the whole evidence in the trial Court and to come up with our own Judgment on issues of fact and law.” In disposing of an Appeal, the Court of Appeal is supposed to have all the evidence/full record of proceedings, which includes all the pleadings files, all the evidence tendered as well as the Judgment of the High Court. Rule 87(1) of the Judicature (Court of Appeal Rules) Directions of further provides in the relevant parts for the content of the record of appeal as follows: “87. Contents of record of appeal. (1) For the purpose of an appeal from the High Court, in its original jurisdiction, the record of appeal shall, subject to subrule (3) of this rule, contain copies of the following documents— (f) the affidavits read, and all documents put in evidence at the hearing, or if those documents are not in the English language, certified translations of them; ...” A reading of the above provisions clearly shows the record supposed to be relied on by the Court of Appeal is the record provided for under Rule 87(1) of the Judicature (Court of Appeal Rules) Directions, As sub-section (f) clearly shows, all affidavits 10read and all documents put in evidence at the hearing are supposed to be part of the record of appeal. Turning to the present appeal, the Justices of Appeal conceded. that the record which Court had before them was incomplete, when they observed as follows: “We note from the proceedings that though the Plaintiff led evidence orally, the Defendants were required to use witness statements in lieu of examination in chief for purposes of expediting trial as the matter had dragged for long in the Commercial Division of the High Court. Surprisingly, although it is the Appellant’s Counsel who prepared the Record of Appeal, the witness statements of the Appellant’s witnesses in the lower Court were not included in the Record of Appeal. The Proceedings in the Record indicate that the Appellant’s three witnesses were cross examined and their witness statements were admitted on record in lieu of examination in chief. We are therefore unable to appreciate why the Appellant’s Counsel would omit such vital and material documentation from the Record of Appeal thereby attempting to disable us from the subjecting the entire evidence before the lower court an exhaustive scrutiny. We have presumed that this serious oversight on the part of Counsel was not intentional but a result of careless preparation of the Record of Appeal. If at ail it was intentional, it would border on abuse of court process.” Despite this realization and shortcoming, the learned Justices went on to hold as follows: “We have, all the same, considered the Appellant’s case, in the interest of justice taking into account all the relevant material including the affidavits deponed during the application for leave to appear and defend the main suit.” cnThe Court of Appeal then proceeded to consider the merits of the appellant’s appeal and to find as follows: “In regard to the Appellant’s claim that supplies to SDT Investments were not part of its orders, there was the Respondent's evidence, such as the exhibit on page 221 of the record, which showed that the Appellant Company placed an order for supply of 40 tonnes of salt to SDT Investments in Kigali Rwanda. This exhibit was not disputed. The Appellant’s contentions in respect to supplies made to SDT Investments Limited therefore were without merit and the trial judge rightly disregarded them. The Appellant placed orders for supply to the said company in Rwanda and cannot be allowed to turn around and claim that it is a different entity responsible. The Respondent satisfactorily proved the supplies of salt to the Appellant Company. The Appellant did not dispute the fact of supply and, surprisingly, was unable to prove if payments were made for the supplies in issue. We are of the firm view that if the Appellant company had indeed made payments for supplies in issue, it would not have mattered whether the payments were made prior to the delivery or subsequent to the supplies. All they needed to do, to discharge their evidential burden, was to prove payments made to the Respondent Company in respect of the invoices in issue. This was not done and consequently, the Respondent’s claim was not answered and the trial judge was justified in holding that the Appellant had breached the contract by non- payment. It is also critical to note that the sum purportedly paid by the Appellant pursuant to that Agreement was never convincingly proved in evidence. It rested on the claims that it was paid in cash yet all the documentary evidence available indicated that the Appellant used to 2deposit funds on the Respondent’s bank account or initiated funds transfer from the Appellant’s account to the Respondent’s. We uphold the Trial Judge’s finding rejecting the said sum as the payment and purpose of the document were all not proved and the Appellant’s case was riddled with numerous falsehoods. Consequently, the Trial Judge’s order dismissing the counterclaim cannot be set aside. It must stand. The trial Judge evaluated the evidence in regard to the counterclaim in a thorough manner and her findings of fact are all based on material on record that we have reviewed including the testimony and report of the handwriting expert regarding the disputed signature.” The Justices of Appeal observed in their Judgment that they did not have the full record. There is therefore no way they could have considered all relevant material as they claimed in their conclusion. The missing evidence of the three appellant’s witnesses constituted a major part of the appellant’s evidence at the trial. Although the Court of Appeal considered the evidence from the cross examination of these witnesses and from the application for leave to appear and defend, there is no way the Justices of Appeal could have re — constructed the evidence in the appellant’s witness statements by only considering their responses from their cross examination. It is also trite that cross examination is done by the other party. Such other party only cross examines in areas that they wish to, which would either discredit the opposite party’s case or those that support their case. A party would not cross-examine the witnesses of the opposite party to prejudice their case. There is therefore no way a record of cross examination can or could have 13substituted for the evidence in the missing appellant’s witness statements. The Court could not have executed its Constitutional and statutory duty as provided for under Article 134(2) of the Constitution and Section 10 of the Judicature Act, respectively. Without a full record of appeal, it was therefore not open to Justices of Appeal to continue to re-evaluate the available evidence because part of the evidence they were supposed to evaluate was not available on the Record of Appeal before them. The fact that the record was missing the appellant’s witness statements meant that the Court of Appeal did not re-evaluate and re-appraise the evidence in these witness statements. The Court of Appeal should therefore not have proceeded with an incomplete record of appeal lacking the appellant’s witness statements. The Court should have halted the proceedings and asked the registrar of the High Court or the Appellant to provide it with the missing record, to enable the Court to do a proper evaluation of the evidence. It is indeed regrettable that appellant’s counsel let their client down and failed in their duty to compile a complete record. However, appellant counsel’s failure to file a full record did not absolve the Court of Appeal of its duty to re-evaluate the evidence basing on a complete record. Therefore, the Court of Appeal cannot claim to have executed its duty when it only re-evaluated evidence which had been adduced by the respondent and that from the cross-examination of theappellant’s witness statements. Similarly, there was no way the Court could have arrived at the right conclusions, when it did not have all the evidence that the appellant had tendered in at the trial. Aware of the short comings in the partial evidence the Court was re-evaluating, the Justices of Appeal attempted to bridge the gap in the evidence by also evaluating pleadings which had been filed in an application for leave to appear. But this effort did not correct the errors of the Court of Appeal. This is because this evidence had been adduced in a separate application between the parties which had been concluded. It was not evidence submitted in the main suit from which the appeal arose. Secondly, the law I cited above earlier in this Judgment does not give the Court of Appeal jurisdiction to hear the application for leave to appear and defend because it was before the High Court and there was no appeal to the Court of Appeal arising from it. The jurisdiction which the Court of Appeal was seized with was to consider the appeal before it, as contained in the grounds of the appellant’s Memorandum of Appeal in the Court of Appeal. It therefore follows that all the conclusions the Justices of Appeal arrived at, basing on the incomplete record in respect to whether the respondent had supplied salt, and as to whether the salt had not been fully paid for, cannot be supported by the partial evidence which was re-evaluated by the Court of Appeal. It also follows that this Court cannot reach that same conclusion for the same reasons.Thave found merit in grounds 1 and 2 of appeal and I would accordingly allow them. I will now quickly turn to grounds 3 and 4 of appeal. Ground 3 was framed as follows: “The Learned Justices of Appeal erred in law and fact when they failed to properly apply the principal of evidential burden of proof thus reaching a wrong conclusion upholding the Learned trial Judge’s decision on evidential burden of proof.” On the other hand, ground 4 of appeal was framed as follows: “The learned Justices of Court of Appeal erred in law and fact when they failed to allow the Appellant's counterclaim when there was overwhelming evidence adduced by the Defendant/Appellant not challenged by the Plaintiff/Respondent providing the said counter- claim on balance of probabilities.” My findings on grounds 1 and 2 are equally valid to dispose of these 2 grounds. It is therefore not necessary to consider the merits of grounds 3 and 4 of appeal. The Court of Appeal arrived at the conclusion that there was no merit in the counterclaim. For the same reasons I gave under ground 1 and 2 of appeal, I am unable to uphold the Judgment of the Court of Appeal. In the same vein, I am unable to agree with the majority Judgment. I would order that the appeal be heard again by the Court of Appeal. While this would unfortunately lead to further delay in disposing of this appeal, we are bound to follow the Constitution and the laws made there under. 16Lastly, on the issue of costs, I have already pointed out that the Court erred when it disposed of this appeal basing on an. incomplete record. Since this was an error on the part of the Court, I would order that each party should meet their own costs in this Court and in the Court below. In conclusion, I would allow this appeal and order that: (a) The Judgment of the Court of Appeal Judgment be set aside. (b) The Court of Appeal requests for a complete Record of Appeal to filed in Court. (c) The appeal be heard again before another panel of the Court of Appeal; and (d) Each party bear its costs in this appeal and in the Court of Appeal because this was a mistake of Court. ORDER OF THE COURT As the rest of the members agree with the Judgment of Justice Mwondha, by a majority of 4 to 1, this appeal is dismissed with costs to the respondents. Dated this day of (.t@less 2021. AIR esssssssseens see Justice Dr. Esther Kitimbo Kisaakye Justice of the Supreme Court 7THE REPURLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA (CORAM: Kisaakye, Arach-Amoko, Opio-Aweri, Mwondha, ‘Tibatemwa-Ekirikubinza; JJSC.) CIVIL APPEAL NO. 08 OF 2018. BETWEEN KAMO ENTERPRISES LIMITED: AND KRYSTALLINE SALT LIMITED: {Appeal arising from the judgment and orders of the Court of Appeal at Kampala (Kavuma, Barishaki, Mugamba, JJA), in Civil Appeal No. 120 of 2014 dated 24 February, 2018}. JUDGMENT OF M. RACH-AMOKO, JSC I have had the benefit of reading in draft the Judgment of my learned sister, Hon. Justice. Mwondha, JSC, and I agree with her findings and decision that this appeal fails and should be dismissed with costs to the respondent. ‘ Hy Dated at Kampala this ..%.....day of... JUSTICE OF THE SUPREME COURTTHE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA Coram: Kisaakye; Arach-Amoko; Opio-Aweri; Mwondha; Tibatemwa- Ekirikubinza; JSC. CIVIL APPEAL NO. 08 OF 2018 BETWEEN KAMO ENTERPRISES LIMITED: AND KRYSTALLINE SALT LIMITE! (Appeal arising from the Juagment of the Court of Appeal before (Kavuma, Barishaki and Mugamba, JA) in Civil Appeal No. 120 of 2014 dated 2" February 2018) JUDGMENT OF OPIO-AWERI, JSC I have had the benefit of reading in draft the judgment of my Learned sister Hon. Justice Mwondha, JSC. I agree with her analysis, and conclusion that appeal fails on all grounds and should be dismissed with costs to the respondent. gt Dated at Kampala this.... day of... 26 Ahdta......2024. Opip-Aweri JUSTICE OF THE SUPREME COURT10 20 25 THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA (CORAM: KISAAKYE; ARACH-AMOKO; OPIO-AWERI; MWONDHA; TIBATEMWA- EKIRIKUBINZA; JJ.S.C.] CIVIL APPEAL No. 08 OF 2018 BETWEEN KAMO ENTERPRISES LIMITED KRYSTALLINE SALT LIMITED [Appeal arising from the judgment of the Court of Appeal before (Kavuma, Barishaki and Mugamba, JJA) in Civil Appeal No. 120 of 2014 dated 2n4 February 2018. JUDGMENT OF TIBATEMWA-EKIRIKUBINZA, JSC. I have had the benefit of reading in draft the judgment of my learned sister, Hon. Justice Mwondha, JSC. I agree with her analysis and conclusion that the appeal fails on all grounds and should be dismissed with costs to the respondent. Dated at Kampala this ...8... vale Mocheas PROF. LILLIAN TIBATEMWA-EKIRIKUBINZA JUSTICE OF THE SUPREME COURT.