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THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT
KAMPALA
(COMMERCIAL COURT DIVISION)
HCT - 00 - CC - CS - 504 - 2005
MUHAMMAD MUHAMMAD AL HASSAN ::::::::::::::::::::: PLAINTIFF
VERSUS
IBRAHIM AL GASIM ::::::::::::::::::::::::::::::::::::::::::::::: DEFENDANT
BEFORE: THE HON. JUSTICE GEOFFREY
KIRYABWIRE.
J U D G M E N T:
The plaintiff
has brought this case against the defendant for the recovery of the sum of
Ushs.6,160,000/= comprising an alleged outstanding
settlement between the
parties of US$2,000, expenses of recovering the said money and damages. The
case for the plaintiff is that
the plaintiff and defendant sometime in 2003 were
engaged in a joint business but which failed. The plaintiff and the defendant
then agreed to dissolve the business whereby the defendant undertook to pay the
plaintiff US$3,000- in full and final settlement
of their accounts. The
plaintiff avers that he was only paid US$1,000- of the said settlement leaving a
balance of US$2,000- which
despite various demands has not been paid. The
plaintiff also claims his expenses in following up the said debt as he states
that
he is resident in Mombasa.
The defendant on the other had denies
that he has any outstanding money to pay the plaintiff. The defendant however
counter claims
the sum of US$21,000- or Ushs.36,000,000/= from the plaintiff
being the proceeds of the sale of timber in Mombasa out of their joint
business.
Originally the plaintiff sued by virtue of a Power of Attorney granted
to one Ayman Awadallah but later on personally appeared in
court during the
hearing.
The parties agreed to the following issues for trial.
Whether the defendant owes the plaintiff any money and if so how much.
Whether the defendant’s counterclaim is sustainable
Remedies.
Mr. Henry Kunya appeared for the plaintiff while Mr. Hassan
Kamba appeared for the defendant.
When the time came for the defendants to
open their case neither the defendant or their counsel showed up despite
consenting to the
date. Counsel for the plaintiff applied that the case proceed
under Order 19 r 20(a) and Order 17 r 3 & 4 of the Civil Procedure
Rule,
which application was granted.
Issue No. 1: Whether the defendant owes the plaintiff any money and if so, how much?
The plaintiff testified that he and the defendant had an informal joint business involving the trade in timber from the Democratic Republic of Congo. The defendant invested Ushs.15,000,000/= while the plaintiff invested Ushs.7,500,000/= into the business. The parties agreed to share the profits therefrom on a 50/50 basis.
Time came when the relationship between the two parties became bad as differences arose between them. Both parties being Sudanese nationals then called in their fellow countrymen to a meeting in Kampala to resolve their differences. The meeting culminated into a settlement agreement dated 10th June 2004 between the plaintiff and defendant (Exh. P.1) witnessed by 6 persons. By the said agreement it was agreed
“...to dissolve the partnership between them and that Ibrahim al Gasim (the defendant) should pay the amount of US$3,000- only to payment schedule is as follow:-
US$ 1,000- to be paid on 11/06/2004
The last installment of US$ 2,000- should be paid on 15/07/2004...”
[translated from Arabic language]
The plaintiff testified that he was only paid US$1,000- of what was agreed. He then kept traveling from Mombasa for the balance of US$ 2,000- only to be told “come tomorrow, etc”. During cross-examination the plaintiff acknowledged inter alia that the agreement mis wrote his name and did not state where it was made. He however was firm that he signed the said agreement and that the agreement settled everything between him and the defendant.
Mr. Adam al Badawi PW1 one of the witnesses to agreement and who actually wrote the agreement under his hand testified that the agreement was to resolve the problems between the litigants. Mr. Adam al Badawi also testified that he and the other Sudanese who signed the agreement were called in to “...get involved in a matter between them...”.
It would appear to me that Mr. Adam al Baddawi and the other witnesses to the agreement had been called to mediate this business dispute between the parties which culminated in the agreement Exh. P.1 dated 10th June 2004.
Article 126(2) (e) of The Uganda Constitution 1995 provides that in adjudicating cases of both a civil and criminal nature the courts subject to the law shall apply principles [where]
“...reconciliation between parties shall be promoted...”
To my mind this means that courts should promote and recognize alternative dispute resolution mechanisms that promote reconciliation between parties such as the community mediation that occurred in this case. Where there is evidence of authority to settle a dispute then according to “The ADR Practice Guide – Commercial Dispute Resolution by Karl Mackiie and David Miles 2ed Butterworths 2000” at para 12.2.1
“...The settlement agreement can take effect as a contract and bind them under normal contractual principles ... This is so even when the contract is negotiated through without prejudice negotiations (albent here within the mediation process) as was
made clear in Tomlin V Standard Telephones and Cables [1969] 3 All ER 201 CA...”
I fully agree with that position. A settlement agreement reached between disputing parties after an alternative dispute resolution (ADR) mechanism such as mediation will be treated by the court as a contract and will be set aside only for the same reasons as a contract would.
I accordingly
find that the agreement reached in Exh. P.1 was a settlement agreement
enforceable as a contract would. In any event
the defendant in his defence does
not deny this but says he paid the money. Of course the defendant did not
appear in court to testify
for reasons best known to him. However, paragraph
4(a) and (b) of his defence refer to matters and payments all in the year 2003
that predate the final settlement agreement dated 10th June 2004.
The defence therefore as it is does not answer why the last payment of US$2,000-
was not paid on or about the 15th July 2004.
I am inclined to
believe the plaintiff who struck me as a straight forward person that he was not
paid the final installment of US$2,000-
and that the defendant simply wishes to
renege on his undertaking.
This has led to unnecessary litigation regarding
a matter which is already resolved and court will not allow the defendant to
renege
on his obligations.
I according find that the defendant by reason of
his own bargain still owes the plaintiff US$ 2,000-.
Issue No.2: Whether the defendant’s counter-claim is sustainable
Following my findings in
issue No. 1, I find that the defendant’s counterclaim is not sustainable.
It simply does not answer
the plaint and I accordingly dismiss it with
costs.
Issue No. 3: Remedies
The plaintiff also
claims the following special damages in paragraph 6 of the plaint.
1- Travel
expenses - 850,000=
2- Hotel accommodation
expenses - 750,000=
3- Maintenance / upkeep expenses - 500,000=
4- Legal
expenses - 560,000=
------------
2,660,000=
=========
These expenses are premised on the
plaintiff’s assertion that he had to keep traveling from Mombasa to
Kampala by air and road
to collect his money. These special damages have to be
specially proved.
In his evidence the plaintiff testified that he did not
keep the receipts for accommodation so had none to prove claim.
As for
travel the plaintiff also has a problem with his tickets. The bus tickets
exhibited as Exh. P.3 clearly all relate to travel
in 2003 which predates the
settlement agreement. The two air tickets in Exh. P.2 are also not helpful.
One ticket which is Mombasa
to Nairobi to Entebbe has a date of issue of
14th January 2004 which predates the settlement agreement. The
second E-ticket dated 11th May 2005 only has the leg Mombasa to
Nairobi and does not terminate at Entebbe in Uganda. As for legal expenses the
plaintiff was
silent about them and I believe these should be taxed.
All in all the claim for special damages must fail.
That leaves the
plaintiff as being awarded the sum of US$ 2,000-.
I also award the
plaintiff interest at 3% p.a. on the US$2,000- from the 15th July
2004 until payment in full.
I also award the plaintiff costs of the
suit.
....................................
GEOFFREY KIRYABWIRE
JUDGE
Date: 15/01/2008
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