THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISCELLANEOUS APPLICATION NO. 0163 OF 2009
[ARISING FROM CIVIL SUIT NO. 0028 OF 2004]
MEERA INVESTMENTS LTD.:::::::::::::::::::::::::::::::::::::::::APPLICANT
ANDREAS WIPFLER T/A
WIPFLER DESIGNERS & CO. LTD. :::::::::::::::::::::::::RESPONDENT
BEFORE: HON. LADY JUSTICE IRENE MULYAGONJA KAKOOZA
This application was brought under the provisions of s.33 of the Judicature Act, s.98 of the Civil Procedure Act and Order 46 rules 1 and 8 of the Civil Procedure Rules. The applicant sought for the review of the judgment that had been entered against her by this court on 24/06/2008 in HCCS 28/2004 and the costs of the application.
The grounds of the application were that the judgment was based on an expert’s report that the applicant had not seen and made comments about, and which excluded matters of evidence that were material to the determination of the suit. That as a result those matters were not brought to the attention of court at the time of the judgment. The application was supported by the affidavit of Sudhir Ruparelia, the Managing Director of the applicant dated 30/03/2009. The respondent filed an affidavit in opposition dated 17/02/2010 to which the applicant filed a rejoinder in the affidavits of Sudhir Ruparelia dated 6/07/2010 and that of Sarbjit Singh dated 28/05/2010.
In his affidavit in support, Mr. Ruparelia averred that in the course of the hearing of HCCS 28/2004 in which the respondent/plaintiff sought to recover shs 385,896,000/=, general damages, interest and costs arising out of certain construction works at Munyonyo, the parties agreed to appoint an expert to give a professional assessment of the works in dispute. That the other aspects of the claim were to be heard in the ordinary manner after the expert’s report was filed. He further averred that his advocates, informed him that it was also agreed that the expert would prepare a draft report and submit it to the parties for comments and that it was only after incorporation of their comments that it would be filed in court after which the report would be binding on both parties. He relied on the record of proceedings for his averment.
Mr. Ruparelia further averred that it was expressly agreed that the expert’s fees would be agreed upon prior to commencement of work; that the expert was given materials that had been filed in court to enable him assess the scope of work and agree on fees. He relied on letters dated 29/09/2007, 8/01/2007 and 15/05/2007 (Annexure TA2, TA3 and TA4 to the affidavit in support). He further averred that the expert refused to release a draft report to the applicant because applicant had not paid the fees that the expert unilaterally imposed contrary to their agreement. That a draft report was submitted to the respondent’s advocates who also refused to supply a copy to the applicant. Further that a copy of the report was filed in court before the applicant had seen it and when they appeared in court on 7/02/2008 they informed court about the fact that they had not seen the report upon which court adjourned the matter for a ruling on notice. That on 18/12/2008 counsel for the respondent informed the applicant that a decree had been entered against her in the suit and the applicant only obtained a copy of the judgment on 23/01/2009. Mr. Ruparelia averred that he finally saw a copy of the report and availed it to Mr. Behengana, a quantity surveyor appointed by the applicant to liaise with the expert and the lawyer with a view to looking at the draft report professionally and guiding the applicant on industrial practice, but which was not done.
Mr. Ruparelia went on to state that the expert was supposed to meet all witnesses for the applicant but that did not happen because some of them such as Mr. Thomas Gunner, Allan Williams and Sabh Singh as well as the applicant’s directors were never called by the expert. That Mr. Behengana wrote to Nangwala, Rezida & Co. Advocates pointing out matters that the court was not made aware of in relation to the expert’s report. A copy of the letter was annexed to the report and marked “TA16”. That as a result, the applicant contested the expert’s report on the several grounds stated in Annexure “TA16.”
In his affidavit in reply, the respondent averred that it was not true that the parties agreed to a draft report being submitted to them before a final report was submitted to court; but it was agreed that the advocates would be given an opportunity to make comments about the report before the court came to a decision on the matter. Further that it was agreed that the parties would share the burden of paying the expert’s fees and he paid his part thereof upon which the expert submitted a copy of the report to him.
Mr. Wipfler further averred that the terms of the evaluation exercise to be conducted by Buildecon East Africa were contained in a letter of engagement (Annexure “TA5” to the applicant’s affidavit in support). That much as M/s Nangwala Rezida & Co. Advocates wrote a letter to the expert about his (the experts) fees also requiring that he submit a draft report to both parties, the said instructions were unilateral. That in fact, the letter to the experts dated 22/08/2007 regarding the submission of a draft report was never copied to him or his advocates. He attached a copy of the letter to his affidavit as Annexure “R1”. Mr. Wipfler also revealed that the expert responded to the applicant’s letter of 22/08/2007 declining to submit a draft report because the letter of engagement stipulated that the findings of the expert would be binding on both parties and submission of a draft report to both parties could not arise. That by virtue of that letter dated 29/01/2007 (Annexure “R2” to his affidavit) the applicants had been made aware that there would be no draft report submitted to the parties. He went on to aver that the record of proceedings for the 19/09/2006 clearly showed that the parties never at anytime agreed that a draft report would be produced first.
Mr. Wipfler further averred that by a letter dated 29/06/2007 (Annexure “R4” to his affidavit) the expert communicated to parties that the report was ready. And on 7/02/2008 when the suit came up for hearing the applicant’s counsel gave reasons why he had issues with the report that are indicated on page 4 of the judgment, but he has raised the same issues in this application. That after raising the same issues counsel for the applicant turned around and stated that as far as he was concerned there was no report. Further that it was not true that the applicant had no knowledge that judgment had been delivered because notice of judgment was issued and served on the applicant’s advocates. He attached a copy of the notice of judgment to his affidavit as Annexure “R5”.
Mr. Wipfler went on to challenge the allegation that Mr. Behangana was supposed to participate in the report writing process and asserted that he was only the applicant’s representative meant to give their side of the story to the expert. That the issue of the applicant’s witnesses never having been interviewed was never raised in court but instead counsel for the applicant at all times unequivocally stated that they were waiting to receive a copy of the report. He went on to point out that the expert’s report was clear about the absence of some of the evidence on the part of the applicants and it was because they failed to respond to reminders to so adduce the evidence. That the expert diligently evaluated all statements and documents presented to him by both parties before issuing the report. He further pointed out that apart from criticising the expert’s report on points that should have been brought out in court, Mr. Behengana’s letter (Annexure “TA16” to the affidavit in support) did not point out any pertinent matters that the court was not made aware of before judgment. That as a result, no new evidence was raised by the applicant in this application.
In his rejoinder, Mr. Ruparelia repeated the contents of the affidavit in support of the application and emphasised that he was not interviewed by the expert appointed to evaluate the project. Further that the applicant’s other witnesses were never interviewed by the expert. He maintained that the applicant hired a qualified quantity surveyor, Mr. Nathan Behengana, to liaise with the expert but the expert deliberately avoided him. Further that Mr. Behengana’s letter dated 9/03/2009 raised new evidence that was not brought to the attention of the court. He further averred that though the expert had undertaken to go to the site and take physical measurements of the works he did not do so. That he did not know what documents the expert examined on the part of the respondent. He also maintained that the submission of a draft report to the parties was a condition precedent to its binding them in the resolution of the dispute. Mr. Ruparelia went on to state that the applicant was not given an opportunity to make submissions to court which in his view was a breach of its fundamental rights.
In his affidavit, Mr. Sarbjit Singh averred that he is the Managing Director of a company, Elite Construction Ltd. That his company was hired by the applicant to construct cottages at Munyonyo and the company constructed 8 out of the 10 cottages in dispute but did not roof them. That it was therefore not true that the respondent constructed all the 10 cottages. That though he was introduced to the expert, Mr. Byoma at Munyonyo in May 2007, the expert never interviewed him about the works. That it was not true as stated in the expert’s report that he tried to call him several times to schedule meetings but in vain.
In their submissions for the applicant, M/s Nangwala, Rezida & Co. Advocates addressed the two grounds of the application, first that judgment was based on an expert’s report not seen by the applicant and to which they had not made comments. Secondly, that the expert’s report excluded various matters that were never brought to the attention of court. The gist of the submissions of counsel on the first ground was that the alleged failure of the expert to interview the applicant’s witnesses led the expert to produce a report that was biased in favour of the respondent and it constituted a breach of the principles of natural justice. Secondly that the expert’s unilateral decision on the quantum of his fees and his failure to deliver a draft report led to the same expert denying the applicant access to a copy of the report and that the applicant was thereby denied the opportunity of commenting on the contents of the report before judgment was delivered.
With regard to the second ground of the application, counsel for the applicant’s major line of argument was that the report on which judgment was based excluded material evidence regarding the construction of the cottages that were part of the works by other contractors other than the respondent. Further that it excluded the input of Mr. Nathan Behengana, a quantity surveyor and an expert witness for the applicant. The issues excluded were named as the value of the work carried out by the respondent not being supported by a priced bill of quantities and the respondent’s engagement as an expert builder and not as an independent contractor. Counsel for the applicant argued that had the court been appraised of these matters, it would have come to a different decision, and thus the need for court to review its judgment.
For the respondent it was argued that the matters raised by the applicant did not fall within the ambit of the criteria for review of judgments and orders that are contained in Order 46 rule 1 CPR. That the matters raised did not prove that there was any new and important evidence which after the exercise of due diligence was not within the knowledge of the applicant. Counsel for respondent further argued that the applicant failed or neglected to avail herself of the expert’s report before judgment and her complaints that she did not draw it to the attention of court that material evidence contained in the report was excluded by court could not be sustained. Finally, that the applicant’s advocate was given ample time to appraise himself of the report and he failed to do so; the applicant therefore could not turn round and blame the court for denying her of the opportunity of raising comments about the report.
The power of the court to review its own decisions flows from s.82 of the Civil Procedure Act. The criteria to be considered by the court in applications for review are laid out in Order 46 rule 1 CPR. A person considering himself aggrieved by a decree or order from which an appeal is allowed but from which none has been preferred, or by a decree or order from which no appeal is allowed may have it reviewed provided that:-
there is a discovery of new and important matter of evidence which after the exercise of due diligence was not within his knowledge or could not be produced at the time when the decree was passed or order made; or
ii) on account of some error or mistake on the face of the record; or
for any other sufficient reason.
In Yusuf v. Nokrach  EA 106 it was held that “sufficient” in “any other sufficient reason” in Order 46 rule 1 would naturally be read as meaning sufficiency of a kind analogous to the two already specified, that is excusable failure to bring to notice of the court new and important matters, or error on the face of the record. The court then held that “any other sufficient reason” could not be interpreted generally to mean that it gives the courts the discretion to consider generally the merits of an application for review. It is therefore the position of the law that applications for the court to review its own orders or decrees must be buttressed by grounds that fall within the 2 criteria specifically named in Order 46 rule 1, or others that are akin to them. It then behoves this court to consider whether the grounds for review raised in the instant application fall under any of the criteria provided for by law.
Starting with the first ground, i.e. that the judgment was based on an expert report not seen by the applicant and to which applicant did not make comments, it may be true that counsel for the applicant and her managing director did not see the expert’s report before judgment and that there were not able to comment about it before judgment was entered. That being the case, what needs to be examined is whether there were new and important matters of evidence raised by the report which were not brought to the attention of the court, and if so whether the applicant exercised due diligence to get to know the contents of the report and bring them to the attention of court when the decree was passed.
The applicant’s advocates summarised the new matters that were not within their knowledge or the knowledge of their client in their submissions and they were three, in the main. The first was the expert’s finding that the respondent was an independent contractor, which the applicant now wishes to challenge; secondly, that the opinion of Mr. Behengana, an expert quantity surveyor hired by the applicant, was avoided by the expert yet Mr. Behengana was known to him; and thirdly that the value of works carried out by the respondent as stated in the report was not based on any priced bills of quantities submitted by the expert.
These were all matters that arose out of the expert’s report and the subsequent opinion of Mr. Behengana about it, Annexure “TA16” to the affidavit in support. If that was the case and the report was ready some eight months before the matter last came up for hearing, can it be said that the applicant and her advocates exercised due diligence to get to know the contents of the report, and that even after the exercise of such diligence they could not get to know these facts? Order 46 rule 3 (2) CPR provides as follows:-
“(2) Where the court is of opinion that the application for review should be granted, it shall grant it; except that no such application shall be granted on the ground of discovery of new matter or evidence which the applicant alleges was not within his or her knowledge, or could not be adduced by him or her when the decree or order was passed or made without strict proof of the allegation.”
Given the provision above, it behoves this court to consider the circumstances of this case relating to the production of the report in some detail, in order to establish whether the applicant displayed diligence in bringing the matters being raised here to the attention of court. The judgment that the applicant seeks to review explained the circumstances that led the court to decide the matter without any further recourse to the applicant or her advocates. At pages 4, 5 and 6 of his judgment, the Judge laid out the background of the process of coming up with a report to bind both parties, noting that the applicant or her advocate, Mr. Rezida, had ample time to raise with the expert all issues that they desired, “had they cared to do so.” It was his view that having agreed to be bound by the report of the expert, the applicant decided to stall the process originally agreed. And this is understandable given what had been exhibited by the applicant throughout the proceedings before that date, and which I will try to summarise.
The court began to take evidence in the suit on 28/04/2005. The respondent began to testify but during the course of his testimony, a bundle of documents was produced. Mr. Rezida for the respondent refused to have the documents admitted in evidence for the reason that he had not seen them before. He then requested that the court give the parties and counsel time to go through the documents and make them ready for trial. Court obliged and the matter was adjourned. After two more successive adjournments (i.e. on 2/05/2005 and 12/02/2006) when the parties returned to court on 15/05/2006, both counsel informed court that they had agreed to appoint an expert to carry out a valuation of works and come up with a report by 30/06/2006. That did not happen but when they next appeared on 19/09/2006 both counsel informed court that they had agreed on the terms of reference (TOR) to guide the expert and who it would be, and in the words of Mr. Rezida on that day:-
“… My lord we did develop the terms of reference and we found a mechanism of appointment of the expert which we had agreed upon and appointed Buildcon East Africa who are quantity surveyors to review the dispute as designed in the terms of reference, look at the documents, interview the parties and give a report which we will, we undertake, will be binding on the parties. …”
The advocates for both parties also informed court that they wanted to keep the TOR to themselves; further that the expert’s report would be ready by 30/10/2006. Court allowed them to manage the process and then adjourned the matter to 9/11/2006.
The suit was called on for hearing on 9/11/2006 but the report was not ready; the matter was adjourned sine die. Nothing happened for the next six months till the court set down the matter for the 14/06/2007. On that day Mr. Rezida, for the respondent informed court that the report was about to be completed and he sought for the matter to be adjourned for about two weeks in the following terms:-
“My lord my information is that they should be about to complete the report now. And if it is a date immediately after Friday probably for mention my understanding is when Mr. Rugumayo submits his report it is a draft report, parties make comments in the report itself then he can make a final report for submission to court. So if he gives it by next Friday we probably need a week to comment on it.”
Counsel for both parties argued about what should happen to the report when it was ready. While Mr. Othieno for the respondent was of the view that the agreement was to have a report that was binding on both parties produced, after which each of the advocates would address court on it leading to a decision of the court, Mr Rezida was of a different opinion. He preferred that when the report was completed, each party would get a date with the expert and express their concerns about the report and request for advice. That it was after their response to the report that the expert would prepare a final report “which would form the basis for (them) to finalise the matter.”
There is no doubt that the court was led to believe that all was well and a report would be produced that would be binding on the parties, because that was their undertaking. So the Judge gave the suit a new date and the record at that point read as follows:-
“Court: This matter is fixed for hearing on the 28th August 2007. So hopefully by that date you will have entered a consent judgment based on the report you would have received since you have agreed that the report is binding on you or on your parties.”
The suit was not called on for hearing on 28/08/2007 but it next came up on 6/09/2007. Mr. Othieno for the respondent informed court that he had got a copy of the report in June 2007, but Mr. Rezida said he had not yet received a copy of the report. In his words:
“My lord its true we got communication from the expert that the report is ready, we had not got our copy yet and we are in the process of arranging to make those comments with the expert before the final report is made for filing a report.”
The Judge wondered why it had taken the applicant/or her advocate more than six months to obtain a copy of the report. Mr. Rezida’s response was that there were a few issues to iron out with the expert. He promised that it was only because the applicant wanted to make comments about the report and after that it would be unnecessary to call the expert as a witness because all matters would have been sorted out following the applicant’s comments. Mr. Othieno was on that date ready to make his comments about the report and in his view it was final and binding on the parties. Mr. Rezida then requested that the court give the applicant “time to finalize that last bit” and the suit was again adjourned sine die.
Once again no action was taken by the parties and their advocates till 7/02/2008 when the court set down the matter for hearing. The advocates both appeared in court and Mr. Othieno informed court that he had no comments to make about the report because he was in full agreement with the findings in it. He also informed court that he had talked to Mr. Rezida on telephone several times before that date but Mr. Rezida informed him that he had not yet seen the report. Mr. Rezida then disclosed that the applicant had issues with the process of preparing the report. The first complaint was that the expert should have met the parties other than simply looking at documents and trying to ascertain the terms of the contract from them. Secondly, that he had hoped that there would be a draft report given to both parties to make their comments before a final report was produced but that was not followed. Thirdly that there was a disagreement between the applicant and the expert about the expert’s fees and as a result of that the expert held back the report from the applicant. And finally, that the respondent’s advocate forwarded the report to court and not to Mr. Rezida. He then dropped the bombshell:-
“ … So as far as we are concerned we have not seen it, we have not made our comments if there are any to make and so we are not prepared to move with that report. If they are inclined to leave it and we go for hearing we are prepared for that, but the proper thing would have been to make comments on that report.”
The court took exception to the amount of time that had been wasted waiting for the expert’s report, altogether about 1 year and eight months only for the applicant to turn round and reject it. Mr. Othieno for the respondent prayed that the report be submitted to court and relying on Order 12 rule 1 CPR he prayed that the court makes its decision on the basis of the report, after hearing the applicant’s comments about the report. But Mr. Rezida would not have it because his client had not seen the report. On reminding him that he and his client had taken all of eight months between the last hearing and that on 7/02/2008 without making any effort to access the report, he said that he had made a lot of efforts to get a hold of it but failed to do so. He thus concluded, “… there is no report that we are going to talk about.” When court tried to probe further he asserted that he had nothing to add to that. The Judge then adjourned the matter to make his decision, which would be on notice.
In order to facilitate an understanding of the decision of the court in the circumstances laid out above, it is at this point necessary to make specific reference to the TOR given to the expert in M/s Nangwala, Rezida & Co’s letter of 26/07/2006, Annexure “TA5” to the affidavit in support. In the letter which was signed by Nangwala, Rezida & Co. for the applicant and M/s Kawenja Othieno & Co. for the respondent, the advocates laid out the brief background of the dispute. It was stated that the respondent claimed shs. 385,896,000/= as the balance outstanding on a contract for specified works at Munyonyo as follows:-
Design Drawings, Materials and Construction Work on Horse Stables, Stores, Boys Quarters, Toilets, 2 Septic Tanks, Fencing and Grass Umbrella.
2. Design, Drawings, Materials and Construction Work on 10 cottages.
3. Design, Drawings, Materials and Construction Work on the Boat Ramp and Retaining Wall.
4. Design, Drawing and Supervision of the Construction of Gate Roofs and 2 Offices.
Design, Drawing and Supervision of Construction of 2 Gates, Toilet Building, Water Tank Building, Apartment Building (4 floors), Apartment Building (2 floors), Stage Building (3 floors) and Retaining Wall.
That on the other hand, the applicant claimed to have had an arrangement with the respondent whereby the applicant paid him for his labour and in addition provided all the materials and money for workers as such and not as a contract price for the work. That initially, the applicant deposited money on the respondent’s account but this changed in December 1997 due to the respondent’s failure to account. That a new arrangement was put in place whereby the applicant paid the respondent a fixed amount of money each month for his labour and provided accommodation for him and a pickup truck. The applicant also claimed that the money for the materials and workers was provided separately in this new arrangement. It was also the applicant’s case that the respondent did not build all the cottages and structures that he claimed to have built because he fell behind schedule when he left the country for a long time, and during that time other contractors were engaged on the project. It was then agreed that:-
The parties would be guided by the industry practices where there is no written contract.
b) A mode of availing each party’s side of the story with supporting documents would be agreed upon.
c) When necessary access to the site would be accorded to the expert.
The report would be binding on the parties.
At the end of these terms it was stated that the expert would be at liberty to interview the parties and obtain from them documents and other materials that would be needed to conclude the assignment. The expert was also to advise the parties of his fees which, if acceptable, would enable him to begin on the assignment.
It is a well known principle of law that where a contract is reduced into writing and appears in the writing to be entire, it is presumed that the writing contains all the terms of it and evidence will not be admitted of any previous or contemporaneous agreement which would have the effect of adding to, subtracting from or varying it in any way; (See Musindi & Others v. Small Enterprises Finance Co. Ltd.  EA 219). I therefore could not read it into the TOR to the expert that he was under the obligation to interview all of the applicant’s witnesses. Neither could I read into the TOR that the expert had to submit a draft report to the parties before it was submitted to court.
And if the applicant was not happy with the fees required by the expert, she should not have gone on to participate in the evaluation as is apparent from Nangwala, Rezida & Co.’s letters, enclosed in the expert’s report as Annexure 8 and 22. In the two letters, the applicant’s advocates gave extensive explanations of their client’s case to the expert. It is also apparent that they supplied documents to the expert to facilitate the exercise. Having done so, the applicant could not properly turn round and refuse to avail itself of the report on the ground that the fees were unilaterally decided by the expert. One cannot approbate and reprobate all at the same time. Neither could the applicant reject the report on the basis that the expert did not interview all of their witnesses because they clearly gave him liberty to choose whether to examine them or not. The argument that the expert did not examine their hired consultant, Mr. Behengana, also does not seem to hold water.
In his judgment, after he summarised what transpired in court the Judge stated that the rules of natural justice demanded that the parties be provided with an opportunity to receive the report on the terms they had agreed upon, I believe those in the letter of engagement, and not any others raised by the applicant then and again in this application. The Judge went on to discuss alternative remedies available to the parties in the circumstances and then decided to enforce the agreement between the parties regarding the report in the following terms:-
“The parties agreed to be bound by the report of the expert. In substance the parties appointed an arbitrator between them. In Alternative Dispute Resolution, arbitration is the process where a third party agreed between the parties issues a binding award. The report before the court has established the total value of the works done by the plaintiff to be shs. 1,015,213,000.00. It has found that the defendant paid to the plaintiff shs. 842,442,707.00. It has determined that the amount due to the plaintiff is shs. 172,770,293.00.
Applying the inherent jurisdiction of the court I uphold the agreement the parties made before this court to be bound by the report of the expert that they jointly appointed. As the expert has found in his report that the sum of shs 172,770,293.00 is due to the plaintiff from the defendant, I enter judgment for the plaintiff in that sum and the costs of the suit. The decretal sum shall bear interest at court rate from today till payment in full.”
And although judgment was entered against the applicant on 24/06/2008, it appears it was long after that (on 9/03/2009) that they obtained the comments to the report from Mr. Behengana contained in Annexure “TA16” to the affidavit in support. I therefore concluded that the applicant and counsel did not display and they have not proved that they exercised any diligence in making efforts to avail themselves of the report of the expert and/or to seek professional comments about the same. They cannot therefore blame the court for their own shortcomings. On the other hand the same court and the terms of Order 46 rule 1 cannot save them from their lack of diligence.
Though it was not specifically stated as a ground for the application, it appears that one of the grounds raised by the applicant was that there were errors on the face of the record that should not be left to stand. In this regard, counsel for the applicant strenuously argued that the judgment was wrongly entered on the presupposition that the respondent was employed as an independent contractor when, in their opinion, he was not. That the finding that he was an independent contractor also implied that the respondent used his own money to build the cottages at Munyonyo and was paid some of his expenses leaving a balance outstanding which he claimed in the suit. The applicant’s major contention therefore appears to be that respondent never financed the contract and any payment ordered to him would amount to unjust enrichment.
It is evident from the judgment that the court did not consider the contents of the report in great detail but focused on the fact that the parties had agreed to be bound by the findings of the expert on the value of the works executed by the respondent, and rightly so. I came to that conclusion because that is what counsel for both parties represented to court on 15/05/2006 when Mr. Othieno informed court about the agreement between the parties. Mr. Rezida for the applicant was in full agreement with him. Counsel for the applicant had not seen the expert’s report and could not have brought it to the court’s attention that the report was premised on the alleged error. Nonetheless, I will next consider whether the expert’s finding that the respondent was an independent contractor was as alleged by the applicant and if so whether it constitutes a ground for granting an order for review of the judgment. The error complained about appeared at page 30 of the report and nowhere else on the record of the court. It will be useful to reproduce the relevant text of the expert’s report here and it reads as follows:-
“It is our finding that right from the beginning of the assignment MIL treated AW as an independent contractor. This is borne out of the fact that MIL paid periodically AW lump sum amount of money, part of which AW used to procure construction resource inputs and part used as his remuneration without recourse to MIL.
This explains the reason why AW was including in his purchases such unrelated items as oranges etc. and was not bothered to hide the same from MIL when the latter demanded accountability especially with regard to VAT input.
During the “Labour only Contract” MIL tried unsuccessful(ly) to create the impression that AW was his employee by availing the latter a monthly sum of Ug. Shs 2,000,000/=. By letting AW sign payment vouchers titled payment for ‘Labour only Contract’ without reference to ‘Salary’ MIL never succeeded in overcoming the first impression created by the lump sum payments which were expended at the discretion of AW. Furthermore the weekly wage disbursement of shs 2,000,000/= was fixed and not corresponding to actual number of workers AW had on site at any particular time.
In a nutshell, MIL had great trust in AW as a reputable Contractor who would be entrusted with sums of money to procure necessary construction resource inputs while allocating himself a fair amount for his services. This is not the case with an employer and employee relationship.”
Counsel for the applicant faulted the finding because it seemed to be their view, as emphasised at pages 4-5 of their submissions, that an independent contractor must use his own money to carry out the works required by the contract. But I was not persuaded that that was the correct interpretation of the term or concept “independent contractor.”
Black’s Law Dictionary (9th Edition) defines an independent contractor as “One who is entrusted to undertake a specific project but who is left free to do the assigned work and to choose the method for accomplishing it. The test to ascertain who is or is not an independent contractor is to be found in the common law in precedents. In Lee Ting Sang v. Chung Chi-Keung  UKPC 9, their Lordships of the Privy Council agreed with the test set down in Cooke J. in Market Investigations v. Minister of Social Security  2 Q.B. 173. The text of the same case, which employed the terms contract of service and contract for services, as reported in 3 All ER 732, at pages 738-739 is as follows:-
… the fundamental test to be applied is this: “Is the person who has engaged himself to perform these services performing them as a person in business on his own account?“. If the answer to that question is “yes”, then the contract is a contract for services. If the answer is “no” then the contract is a contract of service. No exhaustive list has been compiled and perhaps no exhaustive list can be compiled of considerations which are relevant in determining that question, nor can strict rules be laid down as to the relative weight which the various considerations should carry in particular cases. The most that can be said is that control will no doubt always have to be considered, although it can no longer be regarded as the sole determining factor; and that factors, which may be of importance, are such matters as whether the man performing the services provides his own equipment, whether he hires his own helpers, what degree of financial risk (he) takes, what degree of responsibility for investment and management he has, and whether and how far he has an opportunity of profiting from sound management in the performance of his task. The application of the general test may be easier in a case where the person who engages himself to perform the services does so in the course of an already established business of his own; but this factor is not decisive, and a person who engages himself to perform services for another may well be an independent contractor even though he has not entered into the contract in the course of an existing business carried on by him.”
More than a decade later, in Narich Property Limited v. The Commissioner of Pay-roll Tax, Privy Council Appeal No. 38 of 1982, their Lordships of the Privy Council were of the view that the principles of law for determination of the question whether one is an independent contractor or an employee were settled. Applying the decision in Australian Mutual Provident Society v. Chaplin & Another (1978) 18 ALR 385 the court identified 3 principles.
First of all, subject to one exception, where there is a written contract between the parties whose relationship is in issue, the court is confined, in determining the nature of that relationship, to a consideration of the terms, express or implied, of that contract in the light of the circumstances surrounding the making of it; Secondly, while all relevant terms of the contract must be regarded, the most important, and in most cases the decisive criterion for determining the relationship between the parties is the extent to which the person, whose status as employee or independent contractor is in issue, is under the control of the other party with regard to the manner in which he does his work under it. And finally, where the parties include in their written contract an express provision purporting to define the status of the party engaged under it, either as that of employee on the one hand, or as that of an independent contractor on the other, the provision cannot receive effect according to its terms if they contradict the effect of the agreement as a whole.
Given the foregoing dicta of the Privy Council, the question whether a party to a contract is an independent contractor or not is, no doubt, one of fact and not of law merely of law. It therefore could not have been decided by a court which did not take evidence on the matter and which could not undo the parties’ agreement to be bound by the expert’s report. Although it is possible to undo such agreements, the court was not asked to do so in this case and the complaints raised by the applicant could not have caused the court to undo the agreement, because agreements such as the parties entered into here can only be set aside on terms that have been settled in this jurisdiction. (See Attorney General & Uganda Land Commission v. James Mark Kamoga & Another SCCA No. 8 of 2004.) The applicant would have then had to prove that the agreement to be bound by the report was vitiated by fraud, mistake or misapprehension or contravention of court policy.
The court also could not re-evaluate the evidence and findings in the report under the circumstances in which it was presented. It was agreed between the parties that the findings of the expert appointed by them regarding the quantum and value of the works would be binding on the parties and the court enforced that agreement.
The applicant also complained that it was an error for the court not to take further evidence on the rest of the issues in the suit and hear submissions of counsel after the report was submitted. The issues framed at the scheduling conference on the 4/04/2005 were five as follows:-
Whether there was a contract between the parties to carry out the work at Munyonyo
2. If so, what was the nature of the work to be carried out?
3. Whether the plaintiff executed the work in 2 above.
4. Whether the plaintiff is entitled to any payments.
Whether the defendant confiscated the plaintiff’s property as claimed and if so whether he is entitled to them.
There is no doubt that the first four issues were answered by the report of the expert as had been anticipated by the parties. The 5th issue was not one of those framed in the TOR and the expert did not address it.
Order 18 rule 1 CPR provides that the plaintiff shall have the right to begin unless the defendant admits the facts alleged by the plaintiff and contends that either in point of law or on some additional facts alleged by the defendant the plaintiff is not entitled to any part of the relief which he or she seeks, in which case the defendant shall have the right to begin. Order 18 rule 2 CPR goes on to provide for statement and production of evidence as follows:-
“ (1) On the day fixed for the hearing of the suit, or on any other day to which the hearing is adjourned, the party having the right to begin shall state his or her case and produce his or her evidence in support of the issues which he or she is bound to prove.
(2) The other party shall then state his or her case and produce his or her evidence, if any, and may then address the court generally on the whole case.”
In the instant case, the plaintiff had the right to begin. But it seems that when the parties appeared in court on 7/02/2008, counsel for the respondent forgot about the 5th issue framed in the suit yet it concerned his client. Instead of adducing evidence on it he demanded that a decision be made on the first four issues on the basis of the expert’s report after the comments of the advocates for both parties. He made no reference to the fifth issue as requiring further evidence to prove it. The Judge also seems to have forgotten that there was a fifth issue to be determined by court, and if not, he decided to go with the respondent’s advocate’s proposal on the assumption that the respondent was willing to forgo his other claims in preference of judgment on the basis of the expert’s report.
The evidence on the four issues had already been taken and a decision rendered by the expert on the basis of that evidence. Counsel for the respondent who was the plaintiff and with the right to begin had nothing to say about the report before judgement. On the other hand Counsel for the applicant unequivocally stated that there was no report to talk about. Asked whether he had anything else to say, he said there was nothing. He therefore gave up his client’s right to offer submissions on the report. I cannot therefore agree with the submissions of the applicant’s advocates in this application that they were never allowed to offer submissions generally on the case.
It would have been the respondent to complain about the absence of further evidence on the 5th issue and a decision on it. However, the respondent does not seem to be concerned that the fifth issue was not decided. It is not for the applicant to press for a decision on behalf of the respondent because it would definitely not be in her interests to do so. That being the case, though this is an error that is apparent on the face of the record, the person prejudiced is not complaining. It therefore does not call for an order for review of the judgment on that basis.
Going back to the gist of this application, i.e. in as far as it relates to the allegation that judgment was based on an error that the respondent was an independent contractor, it is not the duty of a court sitting in review to re-evaluate evidence because that is the duty of an appellate court. And authority abounds for the proposition that “A point which may be a good ground for appeal may not be a ground for an application for review. Thus, an erroneous view of evidence or of law is no ground for a review though it may be a good ground for an appeal.” (See Abasi Balinda v. Frederick Kangwamu & Another  EA 557 at 559.) Save for the errors adverted to by the applicant which I have discussed above, I found no other error complained of. The application therefore cannot be sustained on that limb of the provisions of Order 46 rule 1 either.
Having found so, what seems to be the case here is that after judgment was entered on the basis of the expert’s report which the parties agreed would be binding on them, the applicant began to feel that perhaps the agreement to be bound by the said report was a bad bargain. The applicant now wants to be released from it but that cannot be the basis for an application for review of the judgment as has been shown above. Even if the applicant were to argue that equity would intervene in such a situation, such argument cannot be sustained. In Clarion Ltd. & Others v. National Provident Institution  2 All ER 265 it was held:-
“Save for those special cases where equity might be prepared to relieve a party from an unconscionable bargain, it was ordinarily no part of equity’s function to allow a party to escape from a bad bargain. Thus the jurisdiction of equity did not extend to relieving a party from his contract when the nature of his mistake went not to the contract’s subject matter or terms, but only to its commercial consequences and effect.”
In conclusion, the applicant is bound by the agreement to submit the dispute to an expert on the terms that it participated in formulating. The applicant also participated in the process of assessing the value of the works and the resultant report is binding on her. The applicant has not satisfied the criteria set out in Order 46 rule 1 CPR to justify a review of the judgment and this application must fail. I therefore have no alternative but to dismiss it with costs to the respondent.
Irene Mulyagonja Kakooza