THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
CIVIL SUIT NO 468 OF 2006
2. ISMAEL MUKASA ………………………….……… DEFENDANT
BEFORE HON. MR. JUSTICE CHRISTOPHER MADRAMA
Civil suit-claim of damages and costs suffered-dismissal for want of prosecution-order 17 rule 6 of the civil procedure rules.
JUDGMENT UNDER ORDER 17 RULE 4 CIVIL PROCEDURE RULES
From various correspondences on this matter it is apparent that a settlement has been reached by the parties. The defendants are represented by Messrs Luzige – Kamya, Nakayi and Co. Advocates by notice of change of advocates dated 12th June 2007 and filed in court on the same day.
On 23rd of July 2007 the plaintiff’s counsel wrote to the defendant that:
The two terms if observed would be in full and final settlement of the whole claim before court. Alternatively that:
(b) The defendants do pay the plaintiff US$ 3,800 as damages for causing the plaintiff financial loss
(c) And an agreed amount on the account of costs.
The defendants through their lawyers responded on the 25th of July 2007 and filed the letter on the court record the same day and the letter reads as follows:
Our client therefore proposes to pay US $ 2,500 (Two thousand five hundred dollars) and there is also US $ 500 (Five hundred dollars) which had not been remitted to Dubai which is in our custody.
We also propose that since we are making efforts to settle this matter, each party bears its own costs.”
2. That each party bears its own costs.
Again the plaintiff responded in a letter dated 21st April 2008 as follows:
On the 7th of February 2011 the suit had been fixed for dismissal for want of prosecution. Counsel Katuramu holding brief for Ms Namutebi Alziik appeared for the plaintiff. He informed court that the parties had filed a consent judgment. There was however nothing on the court record and I directed the plaintiff to file a formal consent by the 14th of February 2011. The suit was adjourned to the 14th of February 2011.
On the 8th of February 2011 the plaintiff’s lawyers again wrote a letter to the Defendants lawyers forwarding 4 copies of a written consent document for them to sign. No consent has so far as can be ascertained by court today the 14th of February 2011 at 12.00 noon, been filed on the court record.
I have carefully considered the correspondence and the law. A suit may be dismissed by court under order 17 rule 6 of the Civil Procedure Rules if no steps are taken to further the progress of the suit within 2 years. In this case however there is strong evidence from the correspondence that the parties have settled the suit. What remains is for them to file a formal consent signed by both parties. The problem is that the court directed that this consent should be filed by the 14th of February 2011 when the matter would be mentioned otherwise the court would be inclined to dismiss the suit.
I have however reviewed that decision. Court may proceed to decide a case under order 17 rules 4 of the Civil Procedure Rules where a party fails to do something for the further progress of the suit as directed by court.
In order not to cloud the courts diary with matters which will not come for hearing it is my humble judgment that this suit has been settled by agreement of the parties. The parties have further agreed to file a consent signifying that agreement in court. The court will not wait ad infinitum to receive the express terms of the agreement but takes the entirety of the correspondence between the parties and filed on court record as signifying the terms of the agreement. The last letter of the plaintiffs dated 21st of April 2008 and filed on court record on the 24th of April 2008 shows that the balance left for payment of the plaintiff was US $ 900. The plaintiff had proposed that this be paid within 7 days and costs of Uganda shillings be paid. The court has no means of knowing whether this money was paid or not.
In the absence of a written consent agreement filed on a court record and signed by both parties or counsel and doing the best I can in the circumstances, the suit is decided against the defendant under the terms of the various correspondence referred to above namely admissions as to liability in the following letters :
2. Letter of the defendants dated 18th of October 2007,
3. Letter of the defendants dated 12th March 2008 and
4. Letter of the defendants dated 8th of May 2008.
5. Finally the plaintiff’s acceptance to receive a top up of US $ 900 and costs.
Judgment signed and delivered this 14th day of February 2011.
14th February 2011.
Delivered in Chambers in the presence of:
14th February 2011