Court name
Commercial Court of Uganda
Case number
Miscellaneous Application-2010/379
Judgment date
20 March 2011

Nakawa Market Vendors Association Ltd v City Council Of Kampala (Miscellaneous Application-2010/379) [2011] UGCommC 14 (20 March 2011);

Cite this case
[2011] UGCommC 14

THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
(COMMERCIAL DIVISION)
MISCELLANEOUS APPLICATION NO. 379 OF 2010


{ARISING FROM CIVIL SUIT NO.135 OF 2010}

 

 

NAKAWA MARKET VENDORS    }
ASSOCIATION LTD.                           }:::::::::::::::::::::::::::::::                                                                                                                               APPLICANT

 

 

 

VERSUS

 

CITY COUNCIL OF KAMPALA  }:::::::::::::::::::::::::::                                                                                                                                              RESPONDENT

 

 


BEFORE: HON. LADY JUSTICE IRENE MULYAGONJA KAKOOZA

 

RULING

The applicants were the plaintiffs in HCCS 204/2008 which they brought against Rugmayo Baguma, Paddy Sentamu and Hawa Birungi, who were also members of the applicant company. They brought the application under the provisions of Order 13 rule 6 of the Civil Procedure Rules (CPR), s.98 of the Civil Procedure Act (CPA) and s. 33 of the Judicature Act. The applicant sought for orders that a judgment on admission be entered against the respondent in HCCS No. 135 of 2010, between the applicants and the respondent, and a declaration that money collected as well as profits from a tender issued to the applicants by the respondents and collected by Rugumayo Baguma, Paddy Sentamu and Hawa Birungi accrues to the applicant company. The applicants also sought for an order that the respondent accounts for money collected by the same persons from the management of the tender from 21/04/2008 to date, and the costs of this application.
 
The grounds of the application stated in the notice of motion were that in paragraph 7 of her written statement of defence in HCCS 135/2010, the respondent admitted that the consent judgment in HCCS No. 204/2008 should be confirmed and respected, and that the tender to manage Nakawa Market had been awarded to the applicant company. That it was in the interests of justice that a judgment on the said admissions be entered pending the determination of other issues in the suit. Further that the matter was a commercial dispute in which the applicant had been put out of enjoyment of the proceeds from the said tender for a long time and therefore it qualified for expeditious settlement.
 
The application was supported by an affidavit deposed by Mwesigye Francis, the Chairman and Managing Director of the applicant company dated 21/06/2010 to which was attached a large volume of documents and the pleadings in HCCS 135/2010. The respondent opposed the application and filed an affidavit deposed by Muwonge-Kweza, Deputy Town Clerk in the respondent Council, on 14/09/2010. The applicant filed an affidavit in rejoinder to that deposed by Mwesigye Francis on 28/09/2010.

In his affidavit, Mwesigye Francis deposed that the applicant submitted a tender for the management and control of Nakawa Market following an advertisement that was placed in the New Vision of 16/03/2006. That the said advertisement specified that the applicants for the tender should be limited liability companies, which the applicant was. Further that the applicant filed HCCS 135/2010 against the respondent herein claiming ownership of the tender, among other things. That in paragraph 7 of her written statement of defence (WSD) the respondent admitted that the tender had been awarded to the applicant. Mr. Mwesigye finally averred that in view of that admission, the applicant is entitled to the orders prayed for in this application.

In his affidavit in reply, Muwonge-Kweza deposed that the affidavit in support was tainted with falsehoods. That the respondent was not party to HCCS 204 of 2008 and the judgment and orders therein were never served on her. Further that the respondent did not owe any money to the applicant company and therefore had nothing to account for. He further averred that the respondent was not privy to the internal wrangles and divisions within the applicant company and as a result could not be held responsible for their consequences. Finally, that the applicant was not entitled to the orders sought in this application.

In his affidavit in rejoinder, the managing director of the applicant averred that the respondent was made aware of the outcome of HCCS No. 135/2010 (I think HCCS 204/2008) but she continued to deal with Rugumayo Baguma, Paddy Sentamu and Hawa Birungi. Further that this prevented the applicant company from managing the market and as a result it has continued to register losses. He further deposed that the respondent’s dealings with the three persons named above had fuelled the internal disputes in the applicant company and prevented the company from managing Nakawa Market.

The parties filed written submissions to dispose of the application. In his submissions, Mr. Justine Semuyaba explained the import of rule 6 of Order 13 in great detail and I do appreciate his efforts. Mr. Sempa Mutyaba submitted that for a judgment on admission to be entered, the admission should be clear, explicit and not open to doubt. He further submitted that save for admitting that the respondent awarded the tender to the applicant, there was no admission of liability in respect of the applicant’s claim in paragraphs 7 and 8 of the WSD, or the rest of it, as would warrant an application such as the one before court. With regard to the consent judgment in HCCS 204/2008 between the applicant and Rugumayo Baguma, Paddy Sentamu and Hawa Birungi, he submitted that it is a contract between the parties thereto. That the respondent was not party to the consent judgement and is thus not bound by it. He went on to submit that in an application such as this one, all that the court needs to look at are the pleadings, not the annexure to the affidavit filed in the application.

In view of the pleadings in this application and HCCS 135/2010, I came to the conclusion that the main issue to be determined here is whether the respondent has any part to play in the enforcement of the orders in HCCS 204/2008, between the applicant and Rugumayo Baguma, Paddy Sentamu and Hawa Birungi. The consent judgment between the said parties was Annexure “D” to the plaint. It was extensive and among other terms therein it was agreed that the tender to manage Nakawa Market was awarded to the applicant. It was further agreed that the board of directors of the applicant company would be constituted by 17 persons and they included Mwesigye Francis, Rugumayo Baguma, Paddy Sentamu and Hawa Birungi. The Memorandum and Articles of Association of the company were to be amended to reflect the number of members of the board and any other matters. It was further agreed that Mwesigye Francis and Paddy Sentamu, together with another person who was to be an employee of the company skilled in accounts, were to be the signatories to the company’s bank accounts.

It seems that the parties to the suit failed to implement what they agreed upon in the consent judgment. Mwesigye who says he is the Chairman and Managing Director of the applicant company now wants to lay the blame for the wrangles in the company at the door of the respondent because he mistakenly thinks the respondent is responsible for the failure of the company to deal with its internal management issues.

While it is true that the respondent agreed that the members of the company should respect the consent judgment in HCCS 204/2008, I do not share in the view that the respondent has any obligation to interfere in the management of the applicant company, whose terms were clearly set out in the said consent judgment. The three persons that the respondent is accused of dealing with are members of the board of directors of the applicant company by virtue of the same consent judgment. If they have no right to engage in the business of the company, then it is the company to officially communicate that to the respondent. The applicant has not proved that it did so.

I am also of the view that the issues for determination between the warring parties in HCCS 204/2008 were conclusively resolved by the consent judgment which they entered into on the 15/05/2008. The members of the applicant company should put their house in order and manage their business as agreed in the consent judgment. It is not the obligation of the respondent to enforce the consent judgement on their behalf.

In conclusion, the applicant is not entitled to the orders prayed for in this application and it is hereby dismissed. The applicant shall bear the respondent’s advocates costs.




Irene Mulyagonja Kakooza
JUDGE
21/03/2011