Court name
Supreme Court of Uganda
Case number
Civil Appeal-2009/13
Judgment date
28 October 2010

Saroj Gandesha v Transroad (Civil Appeal-2009/13) [2010] UGSC 27 (28 October 2010);

Cite this case
[2010] UGSC 27
Coram
Okello, JSC
Tumwesigye, JSC
Kisaakye, JSC

THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA

AT KAMPALA

(CORAM:  ODOKI, C.J., KATUREEBE; OKELLO; TUMWESIGYE; KISAAKYE;     JJ.SC).

CIVIL APPEAL NO. 13 OF 2009

BETWEEN

SAROJ GANDESHA ::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT

AND

TRANSROAD LTD. :::::::::::::::::::::::::::::::::::::::::::::::::  RESPONDENT.

 

[Appeal from the judgment and orders of the Court of Appeal at Kampala, (S.G. Engwau, C.N.B. Kitumba, A.S. Nshimye, and JJA) on the 8th day of April, 2009].

 

JUDGMENT OF KATUREEBE, JSC.

This appeal originates from an application by way of Notice of Motion, (Miscellaneous Application No. 753 of 2000) by the respondent, Transroad Ltd to the High Court whereby the respondent sought certain orders against the appellant in her capacity as administrator of the estate of a deceased Advocate named Gandesha, also her late husband.  The appellant was not satisfied with the decision of the High Court and appealed to the Court of Appeal which substantially upheld the decision of the High Court, hence this appeal to this court.  The facts of this case, and as agreed by both counsel, were set out in the lead judgment of Kitumba, JA as follows:-

  1. “Sometime in 2001, the respondent filed High Court Civil Suit No. 516 of 2001 against the Attorney General for breach of contract.  The respondent was represented by M/S Sebalu & Lule Advocates.
  2. The trial judge entered judgment by which $9.375, 473 was awarded to the respondent.  The Attorney General filed a Notice of Appeal.
  3. The parties thereafter appeared before the court for review and represented that, if the respondent then the judgment creditor were to accept a reduction of $ 1 million, US.D, the Attorney General would pay the balance promptly and withdraw its Appeal.
  4. During these post-judgment negotiations, the Respondent/judgment creditor was represented by Messrs, Gandesha & Co. Advocates, a law firm whose sole partner was Mr. Himatial Gandesha.
  5. A consent variation order was subsequently filed in court on 1st August 2003, by which it was ordered that the respondent be paid US.D$ 8,299,692 plus costs.
  6. The respondent filed a party to party Bill of costs which bill was taxed and allowed at Shs.217,037,314.
  7. The aforesaid decretal sum was then in accordance with the consent duly paid by government as follows:-
  8. US$ 2,449,691 by cheque drawn in the names of the plaintiff.
  9. US$ 350,000 by cheque drawn in the names of Messrs Gandesha & Co. Advocates, Counsel for the plaintiff.
  10. US$ 350,000 by cheque drawn in the names of Tropical African Bank.
  11. A sum of Shs. 871,468,173 being total costs awarded in favour of the Bank of Uganda and against the plaintiff HCCS No. 254 of 1996, Court of Appeal Civil Appeal No. 3 of 1997 its equivalent in US Dollars shall be deducted from the sum of US.$ 5,500,000 payable to the plaintiff and retained by the said Bank of Uganda.
  12. After receipt thereof, Mr. Gandesha was taken ill and in October 2003 went to the UK for medical treatment and was reported to have died thereafter on 1st January 2004.
  13. The said Mr. Gandesha is survived by his widow the Appellant, who obtained probate from the High Court of Uganda, under Administration Case No. 219/2004 on 6/5/2004.
  14. The respondent then wrote to the Appellant as Administrator to account for the moneys received by the deceased Advocate on behalf of the client, and the Appellant replied that she could not both in fact and in law be liable to account as she was not the Advocate, and that the respondent should sue the Attorney General instead.
  15. The respondent then filed Application No. 753 of 2004 arising out of H.C.C.S. No. 516 of 2001 in the High Court against the Attorney General (as first respondent) and the Appellant herein (as second respondent) seeking orders that the Attorney General certifies if he has paid full amount and if so the present Appellant as Administrator of the later