THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
COMMERCIAL COURT DIVISION
(Arising out of HCT-00-CC-CS-040-2008)
Betuco (U) Ltd and Anor …………… ………………………………………………Applicants
Barclays Bank (U) Ltd & Anor ………………………………………………………Respondents
Before: Hon Mr. Justice Lameck N. Mukasa
(b) Costs of the Application be provided for.
The grounds of the Application are:-
The application is supported by an affidavit sworn by Joseph Bahakanira, the Managing Director of the Applicants. In paragraph 4 he states:-
As regards “whether the ostensible authority of an advocate extends to cases where he does not have specific instruction on a matter regarding comprise,” the consent judgment dated 25th March 2009 in HCCS No 40 of 2008 and the subject of Misc. Application No 243 of 2009 was co-signed on behalf of the Applicants by Mr. and Mrs. Bahakanira, directors of the Applicants and Mr. Blaze Babigumira and Mrs. Murangira joint lawyers for the Applicants. It is settled law that so long as Counsel is acting for a party in a case and his instructions have not been terminated, he has full control over the conduct of the trial and apparent authority to compromise all matters connected with the action. The counsel’s authority was further fortified by the Applicants directors’ who also signed the consent. Corporate entities conduct business through their officers, like directors. Though it is not open to this court to determine whether the intended appeal would succeed or not, in the circumstances I find no merit with that intended ground of appeal.
As to “whether mediation proceedings which result into a consent contrary to the party’s wishes are binding on that party,” I must point out that mediation is a new process in our legal system. Mediation is governed by The Judicature (Commercial Court Division) Mediation Rules, 2007. Thus peculiar only to proceedings before the Commercial Division Court. Under rule 21 thereof all information arising out of the or in connection with the mediation shall be kept confidential. So the wishes of parties to a mediation or matters upon which the parties reach an agreement which is recorded as a consent judgment are not open to the court when considering whether or not to set aside the consent judgment.
In the premises I find that a decision of the Court of Appeal would be to the public advantage and provide guidance on the issue. Accordingly leave is granted to appeal against the ruling in HCT-00-CC-MA-0243-2009. The Order as to costs in the intended appeal shall bind the costs of this application.
I so order.
Hon. Mr. Justice Lameck N. Mukasa
30th October, 2009