INJIIIHIGH COURT OF UGANDA AT KAMPALA
MISCELLA1OUS APPLICATION No 249 0F 2001
(ARISING FROM APPLICATION No.4/93)
BEFORE: Lady Justice C.K.Byamugisha
This is an application brought by OIL SEEDS LTD claiming that the award filed in this court on the 29th day of June, 1999 by the Arbitrator Mr. Remmy Kasule has never been set aside or remitted to the arbitrator and all objections thereto dealt with. The second claim is that the said award can be executed as a decree of this court and that the costs of this application be met by the Respondent.
The application was filed under the provisions of Section 35 of the Civil Procedure Act which states that:-
“All questions arising between the parties to the suit in which the decree was passed, or their representative, and relating to the execution, discharge, or satisfaction of the decree, shall be determined by court and not a separate suit”
In his submissions counsel for the Applicant Mr. Walubiri submitted that the award. filed in court has never been set aside, remitted or dealt with and therefore it is enforceable as a decree of this court. However, counsel is silent about the objections the Applicant filed against the award and the cross- objections filed by the Bank. If counsel’s argument that the award has never been set aside or remitted is accepted, then Miscellaneous Application No.1355/99 objecting to the award is still pending and has never been dealt with and as such there is no decree to execute. The applicant has to wait for this court to determine the objections and cross-objections filed by both parties in that matter before filing this application. There is no dispute that the award was given and filed in court by the arbitrator. What the dispute is about is whether the settlement which was filed in court and consented to by both parties on 25th July, 2000 was in full and final settlement of Oil Seeds claim against the Bank. The Submissions of counsel is silent on this important and pertinent issue and his failure to address the legal consequences of the settlement means that he does not dispute the claim by the Bank that this matter was settled once and for all.
Counsel made submissions to the effect that the parties had no powers to enter into a settlement without allowing the court to determine the issues raised in the objections and cross- objections. If that is the case, the Applicant should have applied to set aside the settlement, and return the money it received from the Bank. Moreover, the authorities he referred to are inapplicable to the facts of the case before me since none of the parties is claiming that the settlement was a mistake-at least it is not one of the grounds on which this application is based.
Counsel has not pointed out what parties settled and what was left to be settled by court, and which part of the award was supposed to be remitted However if the parties had no powers at all under the Arbitration Act(now repealed) to do what they did, in the same way, the applicant cannot enforce an award which has not been dealt with in accordance with the provisions of the repealed legislation. In order for the court to make the declarations which the Applicant is seeking it has to set aside the settlement and deal with the matter in accordance with the provisions of the law as if there had been no settlement at all. Otherwise the Applicant cannot be heard asserting that the parties had no powers to settle and at the same time keep the proceeds of the settlement. I think losses and gains should remain where they have fallen. Jam not persuaded that after the settlement the court should have remitted the award to the arbitrator to incorporate the settlement into the final award. This position would not have been correct since I did not deal with the objections/cross-objections on merit. This is what court declined to do when counsel for the Applicant wrote to court on the 16th October, 2000. In my view court could not have been moved by letter to make what counsel called “appropriate orders” outside the ambit of the settlement itself and the provisions of the Act. Counsel submitted that parties had no powers to oust the jurisdiction of the court and all they did was to reduce the amount of work the court should have done. It is not clear what counsel meant by this. It seems he is suggesting that parties had powers to settle some aspects of the case and leave the balance to be dealt with by court. If this is what the parties wanted they should have stated so in their statement. But they did not. The parties in the matter now before me consented to figures which the respondent should pay to the Applicant which figures were the subject of contention in M.A. No. 1355/99. They did not deal with any matters of law which the court alone had power to handle. They did not purport to discuss whether the Arbitrator had misconducted himself or not. They merely stated that they were dissatisfied with the award i.e. the figures. Of late the courts have been encouraging the use of alternative methods of resolving disputes as a faster and cost-effective way of getting an agreement acceptable to both or all the parties to a dispute. In the matter now before me the parties entered into an agreement involving sums of money. This money was immediately paid by the respondent to the Applicant in what the former understood to be the full and final settlement of the latter’s claim. It is not the duty of this court to inquire how the figures were arrived at, since no one is challenging their legality.
I think I have said enough to show that the parties before me entered into a settlement and no one has applied to set it aside. It remains binding to all the parties who affixed their signatures on it; it can only be set aside for reasons which would enable the court to set aside any agreement. The application has no merit in it and it will accordingly be dismissed with costs to the respondent.