Court name
High Court of Uganda
Case number
HCT-00-CV-MA-2002/437
Judgment date
14 October 2002

City African Textiles Shop (U) Ltd v Jan Mohamed Ltd (HCT-00-CV-MA-2002/437) [2002] UGHC 22 (14 October 2002);

Cite this case
[2002] UGHC 22

 

REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
 HCT-OO-CV-MA-0437 OF 2002
(Arising from High Court Civil Suit No. 304 of 1994)

CITY AFRICAN TEXTILE SHOP (U) LTD:::::::::::::::::::::: APPLICANT
VERSUS
JAN MOHAMED LTD ::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT
BEFORE: THE HONOURABLE MR. JUSTICE F.M.S. EGONDA-NTENDE RULING
1. The applicant was the successful party in the main suit. It received judgement for
shs.64,063,125/=, interest and costs against the respondent on 25th July 1997. On the 5th March 1999 a compromise cum order of satisfaction of decree was by consent
filed in court. It was drawn by M/S Nyanzi, Kiboneka and Mbabazi Advocates, newly instructed advocates for the applicant, in conjunction with Kangwamu and Co. Advocates, counsel for the respondents.
2. The compromise cum order of satisfaction of decree in effect provided that the sum of Shs25,600,000/= to be paid to the applicant by the respondent shall satisfy fully and effectually the decree in the suit in consideration of the Respondent not pursuing the intended appeal.
3. The applicant has now come before this court, seeking to set aside the said consent order, on several grounds. Firstly that the order was illegal, null and void. Secondly that it was procured by fraud, collusion, and complicity between one Hussein Abdalla and the Respondents. Thirdly that the M/S Nyanzi Kiboneka and Mbabazi Advocates, who acted for the applicant had no instructions from the applicant to act for the company or to enter into the said compromise on the applicant’s behalf. This application is supported by the affidavit of Jackson Mugooha with many aimextures including affidavits of Hanif Hudda, Hussein Abdalla and Mohamed Mbabazi filed previously in other proceedings under this suit.
4. The respondent opposes this application and it has filed two affidavits in support of its position sworn by HanifHudda and Issah Kamugisha.
5. At the hearing of this application, learned counsel for the applicants, Mr. Gilbert Niwagaba, submitted that the compromise was illegal because it in effect reduced an award of court. He referred to the case of Konde v Nankya [1985] HCB 22 as authority for this proposition.
6. Secondly Mr Niwagaba submitted that the consent order was procured by fraud and complicity between one Hussein Abdalla and the Respondent. The Respondent had filed an appeal and an application for stay of execution. Stay of execution was granted by the High Court on condition that the respondent would pay the decretal sum and costs in court. Instead of compliance with this order a consent order was flied. Mr. Mohamed Mbabazi was instructed by Hussein Abdalla, who was not an officer of the company. There was no resolution of the company authorising a settlement for a lesser sum. There was no resolution granting authority to Hussein Abdalla to negotiate on behalf of the company. There was no resolution appointing an Nyanzi, Kiboneka & Mbabazi Advocates to act on its behalf. He referred to the case of Bugerere Coffee Growers LTD v Sebaduka and Anor [1970] EA 147. The advocate did not have instructions to act for the applicant and to compromise the decree. Where an advocate consents to an order without authority of the company the resultant judgment is a nullity, He referred to the cases of Steven Kasozi and 2 others v Peoples Transport Services Supreme Court Civil Appeal No. 27 of 1993, Buikwe Estate Coffee LTD & 2 others v Rutabi and Anor, [1962] EA 358 and Kafuma v Kimbowa Builders & Contractors [1974]EA 91.
7. Mr. Niwagaba attacked the letter, annexture B to