[1992] UGHC 29

## THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

## MISCELLANEOUS APPLICATIONNO. 8g OF 1992

(ARISING OUT OF ARBITRATION CAUSE NO.2/90) AFRICAN TEXTILE MILL LTD. APPLICANT

| | VERSUS | | | |--|--------|--|--| | | | | |

| CONSTRUCTION &<br>ROCK<br>GENERAL) | | |------------------------------------|------------| | | RESPONDENT | | RENOVAPORS<br>COMPANY<br>LTD. | | | | |

BEFORE: The Honourable Mrs. Justice M. Kireju RULING.

This is an application brought by the applicant African Textile Mill Limited against Rock Construction & General Renovators Company Limited, respondent\* Civil The applicant seeks' an order of this, court;that the execution Orders in Arbitration Cause No.2 of.1£9G dated 2nd June, and 4th August, 1-992 be set aside. It .is supported by the affidavit of Mr. Dagira-Suza who is 1st counsel for the applicant, dated 7/8/92. There is also an affidavit in rebuttal affirmed by Mr. Samuel Wegoye dated 20/10/92, Mr. Wegoye is also 2nd counsel for the applicant. It is brought by Notice of Motion uhder Sw101.of Procedure Act and S.j(c) of the Judicature Act 11/1967.

The respondent, filed an affidavit in reply, deponed by John Sebastian Owori Kunya There was another Mr• Lubaga-Matovu of this application. •respondent, it is dated 26/10/92. M/S Lubega-Matovu Advocates represented the respondent in affidavit sworn by Zr.ick Ekirapa former counsel for the on 29/9/92.

The grounds of this application, as sot uut in the Notice of Motion are that, the said execution orders were

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set aside and property and money attached agreed to be returned to the applicant and lastly that i;> just and □quitable that the said execution orders, be set aside\*

The background to this application is that while objection into consent judgement dated 3/2/92\* Undur the consent judgement the applicant African Textiles Mill Limited was to • All the sums were specifically agreed except, item No. 4. whore the respondent was to be paid such additional sum as may be directed by independent experts:. The respondent through the auctioneer, was issued with warrant of attachement dated 2/6/92 which.was allegedly set aside by the consent order dated 11/6/92\* Another warrant of attachement was issued to the same court bailiff Okwi Lkirapa on 4/8/92. These are the two execution orders the applicant is seeking to set aside. proceedings in respect of an arbitration.award were pending in this court, the applicant and the respondent entered pay all the rums .ig.-eed upon by 31/3/92.

Mr. Dagira, Counsel for the applicant submitted that where it was decided that item No.4 in the arbitration award be iesolved by evidence of independent exports. The respondent company chose one Mr. Kichodo v/hc carried out the inspection. Counsel said that before.the applicant company received the said repert, the respondent obtained warrant of attachment dated 2/6/92 consquent upon that order the propperty of the applicant was attached plus cash\* on 3/2/92 a consent judgement was entered into by parties

consent temporary stay of execution was entered into by the parties to last until 12/6/92 poncing discussion to resolve the matter after the two experts namely Engi^icLodo and Wangoolo had given their report. Counsel further submitted On 4/6/92 a

and net satisfied with the offer rnd the- parties agreed to refer item No.4 to court for —was—to -he- -returned-to the applicant , and .th.i-"c\xacjut.ion".\_orders\_\_were\_\_\_ to be set aside. a consent order wes accordingly signed on 11/6/92 setting aside &ng: Kichodo's rep rc and rePbving it from the court record Mr. Ekirapa was responsible for filing the consent order in Kampala. while the applicant was waiting to receive the property detained, it was surprised to find th .re was another •warrant issued on 4/8/92 ordering Mr. Okwi Lkirapa (court bailiff) to attach more property. Counsel challan , ;d this warrant , that it formal application was made and no fees .paid as required by the rules. Counsel submitted taut since item No.4 hud not been agreed on they did not know whore the respondent was getting the figures. Counsel contended that the warrants were obtained fraudulently and it was an abuse of civil procedure rules. Counsel submitted that court had power under S.101 of Civil Procedure Act to set aside an order which amounts to an abuse of court process, he referred me to Company Cause No.¹ Khotai i960 3?4 in support of his arguemcnt< a decision on evidence, th~ property attached that after looking at the reports they found chat there was was irregular as nc of 1976 in Re Nakibubb Chemist (U) Ltd 1979. HCB ant Geraj Lhariff vs. no extra payment to be . paid to the respondent, nonetheless ^&gt; the applicant agreed to pay Shs. J,000,000/- on hunanli^ri\*® ground *,* th'e finalise/matter, Mr. Ofwono of the respondent company was

^C'oun..'\*l submitted that the sec ?id ground on which the application was based was that the consent %.rdc-r dated '• '11/6/92 was valid and binding on the respondent as the applicant and his lawyers had no notice of the- change of advocates by the time it was conluded. Counsel was suspicious of the

filing of the notice of change of advocat. 7, filed in court on 10/6/92 and dated 9/6/92, that fraud could not be ruled out, .he was of the view that the notidc w. .n back dated on the court file. Counsel further submitted that Mr. Ekirapa of Owor & Co. Advocates also confirmed that by the time he signed the consent order he was not aware of change of advocates. Counsel submitted that it was after the consent had been reached that they learned that h/S Kulubya 8c Cep Advocates were representing the respondent. Mr. Ofwono Managing Director of the respondent attended all the meetings of 10th and 11th June, 1992. Counsel submittal tn.;t the law which governs the relationship between counsel and client ftjllis Faber and Co; Limited Vs. Joyce 1911....1O4 L. T, 5/6 the case Reprint was also cited. Counsel queried the way the purported revocation of the agency was dene since the respondent company has never filed any roturns of its officials since it was incorporated. V«.he"-a was that of agency and he referred me to tho case ~f o ,f Scarf vs. Jardine vol. 47 L. T.

Thu last ground was that it is just and equitable that execution orders be set aside as no proper procedure was followed when getting the execution orders. That the respondent was exnibiting a lot of Lad faith and breach of trust. Counsel prayed that on those grounds the execution . orders . a -i<-• '• i" b e set as.i d e •

Mr. ^egoye, second counsel for the applicant efuppbrted the submissions of Mr.. Dagira. Counsel submitted that the warrants were full cf irregularities, that tbu one of 4/8/92 was signed by the ng. Chief Magistrate, wh-n it was queried it was changed to n.g. Deputy Hogistrar.

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Counsel in his submission made- seme serious allegations against some Officers of the court and those of the respondent. I have decided not to comment on. the allegations as I did not think that they were properly before court, since some of them allege professional misconduct and others criminal offences, counsel should forward his complaints to the chance to be heard. proper authorities so that those concerned era be given a

Mr. Lubega Katovu counsel for the respondent submitted that the arbitration award filed in court s modified byconsent judgement of 3/2/92 and 11/6/92. Co uno cl submitted that it was item of the award which was causing problems it related to repair work dene by the respondent.; That according to the affidavit it renly of Mr. Kunya,. that au expert in the names ci Mr., Kichcdo was appointed by the respondent' and approved by the applicant as it was Mb'. /»vegoye who -introduced him to • the applicant company by his letter dated- 18/5/92. Counsel argued that, there were two exports Hr. Kichod Clerk of Works as required by the consent ju.igcin.nt, of 5/2/92. The clerk f works never although they worked together which according t counsel meant that he had agreed with.his findings. Count-el further submitted th..t since the proviso to the c ?:n.cvnt judgement had agreement with the ward, the respond., nt was entitled to get full satisfaction under the *'* award. Cour.: -'1 submitted that the purported stay of execution was to last until 12-z6/92 and that the applicant's attempt to get an.:th.r st.-.y also failed, this was before the Registrar, 2\*+/7/92. Counsel submitt d that the respondent was entitled to proceed with execution. opposed Kichudo's report n and the b-:en complied with and trie repot of Mr. Kichvdo was ic

J . cheques thus'satisfying the claim under- it^.-m 4 . He contended that an application to set- aside execution orders was misconceived. Counsel submitted that it was trit,e lav/ that court cannot make an order which is unoexocutobl-j, counsel submitted that the applicant should look ⁱ r other remedies but' not to set aside execution orders which Wore. validly issued by court and executed. CouiiBcl submitted that fraud which has been alleged by th .applic ,nt .has xj,ot been pi-ovcC and the burden is ton it. Counsel submitted -that the Deputy Registrar had made a mistake and signed as Ag.; . Cheif ' Magistrate but when he realised it he issued .another valid. warrant and this negates the alleged abuse, .^f office. , creditor. the court' cannot order Counsel submitted that the report of Mr. Kicludo was of an hcnect man, and he prefers it to that does not make any assessment. He said that the appointment of Mr. Wangoolo was of r-i/S Vangoolo which That goods having been *:* sold and- mvnoy pail. to/the., judgement return.;f an after thought since ho.was nut ^a ... ' *'* Counsel also submitted that emphasis is being put vn the consent judgement whereas the matter before court'is item'No.4. **¹ ' v J.** cs all the other items have been paid. Coun.-ol contended that the applicant having failed to stay execution he should not complain as various warrants were issu id by Ccurt, goods were attached and returns made, that the applicant issued appointed, in the same v.oy as Mr, Mchodo.

Counsel further submitted that the application was misconceived as courts can only set aside judgement.and issued. Counsel concluded by saying that the warrants have been spent and there is nomore to set aside and prayed that the application be didsmissed. ... /7 execution, and if it set aside another one ca always be decrees but not warrants, as warrants arc jue.t a process of

thct the clo'rk of Mr. Kichodo around and was representing the- Sunsuiting Engineer. Counsel contended that the warrants had to bo set or respondent. should be ignored the evidence from the Registrar That Mr. Kunya's evidence aside z. otherwise no action can be brought against the courtbroker Works was net an ' expert he was just present-to shew as he had no lucus standi, as Mr. Bagira in response- submitte

of companies was not challenged by the respondent.\* nullified they should be set aside. Counsel submitted th-.'.t the report needed comment buf ..re it could b.e approved by the parties. o . Lou tc be G<nx to theteonsultnnt f-r Mr. Wegoye that if the warrants . re

I have carefully considered the above arguments 1 have also .perused the court record. This is a £ase which ' dispute. by both parties, the respondent company which had earlier y. . denied its legality later on conceded since all an attempt by parties to reach.a final.settlement of¹ the ^z •3/2/92 is nut disputed has been characterised by consent judgments and orders in The consent judgment entered

its execution . • warrants were issued on the strough of the consent jr.c.gement. Alllthe it/ms wore agreed upon and were to be settled by 31/3/92 except it.cm l\ic\*4 where it additional sum a- may be- direc ue-u by an independent experts. This term ef settlement was sketeny, it did not specify who was to nominate the experts, when they wore to carry, out the work and to whom they were to report. Mr. Kicholo ^o'.us later nominated by the respondent in May, 1992, Hvrc than 3 months after the signing of the consent judgement\* Mr. Wegoy⁶ counsel for the applicant sent him to his clients the applicant to was stipulated that the respondent, was to 'be such

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■b the job. I would •ve imagined at this stage that if the to send its own expert it would have done so. of Mr. Kichcdo camo out the applicant was net happy with the report and sought the services of another expert one Mr. Wangoolo which turned cut to be less satisfactory. It is not clear whether the two experts were to ^Ie- independent of the applicant and respondent and whether ch one of t..em was to or three reports. independent expert who would do thv\_ work and report to them. And the manne? in which Mr. Kichudo addressed his report to / i-ir^ Wegoy.e and copied it to M S Owori & Co. among others tend to suggest that «ne expert could have successfully dene the job\*. The 'echoent judgement did not sr.y wh\*?t was tc be done with the report vf the expert. -he respan ent interpreted it to mean that as scon as the report came ut it would be implemented. first and approved. consent judgement did not specify what to be done and I think the responent cannot be blamed for rushing to. execute. make an independent report and then what v-e-uld happen jto\_jthese two ' • *:■* the parties wanted an On the. other hand counsel for the applicant expected it to be discussed All these were opinions'\*»f parties as the a; r liecar; warted My own pinion is tha ^I How eve; when the report

The attuthvinent warrant dated 2/6/92 j.'. is issued after Kichodo's report had been filed in court on 1/6/92. The applicant complains that the warrant was r. t properly btained th':4; thk-re wero irregularities in the procedure. However "hc applicant instead of moving oudi ^t 4/6/92, he enters'a c-r;...unt temporary stay of execution with the respondent. . until 12/6/92. . order. setting aside ^f execution order of 2/6/1992 end the property Thu stay was to last The court broker was given a copy.of this objecting to it, on to s^t - aside or attached to be returned was npt copied t. the court However, the consent order cf 11/6/92 which ordered the

•bailiff and it is not clear whether he was served with the record is the letter of tile Hg. Deputy Registrar dated 16/6/92 asking him to step execution. This .was done by the Registrar after Mr. Wegoye had filed the consent order on 15/6/92 on court record. However the Registrar on 4/8/92 issued another warrant as the one of 2/6/92 had been set aside by the consent order. And at that time there was no application pending before court for stay of execution. of the opinion that the warrant of 4/8/92 was properly obtained unlike that of 2/6/92. The fact that the Ag» Deputy Registrar 'signed as Ag. Chief Magistrate was a human error and it was later corrected.. The applicant also questioned the status of Mr. Ofw'ono and Mr. Kunya in the respondent company, as they regard to office bearers. I think the applicant having dealt with the two gentlemen .all along, he should not deny their authority just now. order., But what is on wer^r co annual rerurn i.i the company Registry especially with I am

I think this is a lacuna which should ba corrected by the respondent company.

After considering this case generally I have found that it has been seriously contested case, although parties were always trying to roach settlement. On the side of the respondent- counsels have been changed several times, court bailiffs in fact one of them attached property from the applicant and failed to acc-bunt The than two years ago been paid his full claim until September, 1992. All along the applicant u.# willing to pay the money in the consent judgement, but they had been delays. on 29/10/1990 more for it until he was brought before the Registrar, was arbitration award/made and the respondent has never hn?c ' alr-c bech.^s nged severa¹ times,

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1 vonced ^a ' xhat the first warrant issued had some irregularities but 1 would like to think that these ware not fatal. The warrants have been executed and all the monies owing paid to the respondent\* I think to try and set aside the warrants now would not be in'the interest of justice. Justice should justice delayed is justice denied. The. scale .of justice in this case lean more to the side of the r^spn-.d nt than that of the applicant. T think courts should also endeavour to conclude cases ar. J avoid endless litigation. not only be done but seen to be.done,

I shall therefore dismiss this application to set .aside *'* warrants already executed. But if the applicant feels it has any ether complaint against the. respondent it is free •i;o bring it before court.

Each party to bare its own costs.

cl'i/14^k ^j-- M. KIREJU J ^U ^D ^G E. 5/11/92.

& hr. 2. JO P. M. Da^-'.ru for the applicant jf/11/92 Mr. Mr. hcrovu Lubega - for the respondent Respondent present. Court - Ruling read out

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j I • •\**:* H. WOLaYO

Ag. DEPUTY REGISTiclR 5/11/1992