S.L.P. Civil Engineering & Contractors Ltd v Kenfreight (U) Ltd (MISC. APPLICATION NO. 921 OF 2000) [2000] UGHC 65 (26 October 2000)

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

MISC. APPLICATION NO. 921 OF 2000

(Arising from'H. C. C. S. No. 262 Of 1997)

S. L. P. CIVIL ENGINEERING & CONTRACTORS LTD PLAINTIFF

VERSUS

KENFREIGHT (U) LTD : : DEFENDANT

BEFORE: THE HONOURABLE LADY JUSTICE C-K. BYAMUGISHA

RULING

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On the 2nd June, 2000 the parties to this Suit agreed to settle *IV* this case in the following terms

1. That the container be returned to the Plaintiff.

2 . That the Defendant pays US \$ 15,000 to the Plaintiff and costs to be agreed upon.

- 3 . from date of Judgment till payment in full. The sum to carry interest at Court rate - ⁴ . The Plaintiff to abandon the prayer for general damages and interest of 12% p.a. - ⁵ . The counter-claim to be withdrawn with both parties bearing their own costs. *2D*

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The above compromises were reached partly at ^a scheduling conference held on the 1st June and later out of Court.

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⁶'- However, the then counsel for the Defendant intimated to Court that the Managing Director of the Defendant was out of the ^I country and that he would have to persuade him to accept the deal which he then termed a fair settlement. The terms of the compromise were recorded in accordance with the provisions of Order ²² rule ⁶ of C. P. R.

> It seems counsel failed to convince his client as to the fairness of the terms and he filed the instant application which is *[V* supported by his own affidavit and that of the Managing Director of the Defendant. In the affidavit counsel states in paragraph 4 thereof as follows

in the order of this Court without having opportunity to consult the Managing Director of the Applicant who came back to Uganda on 1st July, 2000 . " "That ^I consented, to enter Judgment on terms encapsulated

In paragraph five he states that;

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Suit heard and determined on its merits because they believe they have a good defence to the Suit." "I verily believe that the Applicant seeks to have the

{ The Managing Director of the Defendant in J paragraph four as follows: on his part stated

Advocate that this Court had been entered against the applicant on terms agreed upon between counsel for the Respondent and counsel acting for us . "On return to Uganda on 1st July, 20-00 ^I was informed by my an order of

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In paragraph five he says:-

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^I did not instruct my Advocate to consent to any order or ⁿ negotiate terms of an order with counsel for the Respondent and ^I believe that the Applicant has a good defence to the claim which should be heard and determined on its merits. rr

When the matter came before ID the application. generally on me both counsel made submissions

Since this application was brought under the provisions of section 101 of the Civil Procedure Act and section 35 of the Judicature Statute, it should satisfy the requirements of those two sections. Section 101 saves the inherent powers of Court to make such orders as would be necessary to prevent an abuse of Court process or to serve the ends of justice. Section 35 on the otherhand is I should grant so that the dispute between the parties is finally adjudicated upon. a general section as to remedies which the Court

the dictates of justice demands an intervention by this Court to J set aside an order arrived at by both counsel. Mr. Patel in his In the matter now before Court, it has not been suggested that

affidavit did not state the limitation he had imposed on his counsel and whether the Plaintiff's counsel was aware of those limitations. There is no complaint that the terms are unfair or that there are an abuse of Court process. To set aside a compromise reached by counsel who had instructions to conduct the case on behalf of their clients would in my view be an interference in the relationship of an Advocate with his client.

It is not enough to state that the Suit should heard and determined on merit as if the outcome would be different. $I$ am therefore not persuaded on the facts and circumstances of this case, that the compromise reached by the parties on their own volition should be interfered with. This being a commercial dispute of a Suit filed in 1997, the parties are encouraged to bring about faster settlement of their disputes at minimum costs to themselves. I take it that the Advocates compromised the substantive Suit along those lines. The application is dismissed with costs to the Respondent.

C. K.

J U D G E

20/01/2000<br>MR Bamine for of Cross<br>no orman for Methods<br>no orman for Methods

c. And - g delivered - The will $1$ $\rightarrow$ $\rightarrow$ $7.0111 - 12$

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IN THE HIGH COURT OF UGANDA AT KAMPALA

MISCELLANEOUS APPLICATION NO. 921 OF 2000 [Arising from H. C. C. S No. 262 of 1997]

} } PLAINTIFF S. L. P CIVIL ENGINEERING & CONTRACTORS LTD

VERSUS

KENFREIGHT (U) LTD } DEFENDANT

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ORDER

before The Lady Justice C. *10* THIS APPLICATION coming for final disposal today K. BYAMUGISHA in the presence of Mr. Bernard Bamwine for the Applicant and Mr. Peter Mulira for the Respondent.

AND UPON hearing submissions of both Counsel,

IT IS HEREBY ORDERED that the application be and it is hereby dismissed with costs to the Respondent.

, 2000. / Oi...., DATED at Kampala this day of

day of *io* GIVEN under my hand and the Seal of this Court this 2000.

:

DEPUTY REGISTRAR

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DRAWN & FILED BY: Kwesigabo, Bamwine and Walubiri Advocates Plot 15 Jinja Road P. O. Box 21161 Tel: 341295/6 Fax: 343168 KAMPALA