Ackah - Yensu (as the trust administrator of non- performing assets recovery trust) v Haji Semakla and Another (Civil Appeal 29 of 2003) [2005] UGCA 85 (18 May 2005)

### THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

# CORAM: HON. JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ HON. JUSTICE A. E. N. MPAGI-BAHIGEINE, JA HON. JUSTICE C. N. B. KITUMBA, JA

### CIVIL APPEAL NO. 29 OF 2003

# BARBARA F. ACKAH-YENSU AS THE TRUST ADMINISTRATOR OF NON-PERFORMING ASSETS RECOVERY TRUST ::::: APPELLANT

#### VERSUS

#### 1. HAJI HARUNA SEMAKULA

2. GENERAL PARTS (U) LIMITED ::::::::::::::::::::::::::::::::::::

# (Appeal from the decision of the High Court of Uganda at Kampala before the Hon. Mr. Justice Okumu Wengi dated the 28<sup>th</sup> October 2002)

30 **RULING**

> When this appeal was brought before this court for hearing on $5<sup>th</sup>$ May 2005, it was adjourned to today 18-05-05 with a view of giving the parties time of exploring the possibility of reaching a settlement in a long-standing dispute. When once again it came before us this morning Ms. Irene Mulyagoja was still representing Barbara F. Ackah- Yensu AS THE TRUST OF ADMINISTRATOR NON PERFORMING ASSETS RECOVERY TRUST. She applied for an adjournment to enable the management to consult the Board of Trustees, the


final decision making body, for further instructions on the She, however, intimated to this court that, following matter. the directive of the Minister of State for Finance, the appellant intended to withdraw the appeal.

The application for an adjournment was opposed by Mr. 10 Kugumikiriza, learned counsel for the respondent, on the ground that it was unnecessary and time wasting. He prayed this court to prevail on the appellant and order her to withdraw the appeal with costs to his client.

On the record before court we do not believe that the appellant was not aware of the letter from the Minister. It was filed in court and counsel for the appellant should have brought it to the attention of her client in case she had not received it. We gave the appellant two weeks to negotiate a settlement but this The appellant is, instead, promising to was not done. withdraw in the future which is uncertain.

We are of the view that this matter has to be brought to a close. The appellant is, hereby ordered to proceed with the appeal.

Dated at Kampala this 18<sup>th</sup> day of May 2005.

L. E. M. MUKASA-K 30 HON. DEPUTY CHIEF JUSTICE


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#### **MPÁGI-BAHIGEINE** $A. E. N.$ HON. JUSTICE OF APPEAL

$10$

C. N. B. KITUMBA HON. JUSTICE OF APPEAL

# Ms Mulyagonja states:

I have received instructions that I withdraw this appeal but each party to meet its own costs.

# Mr. Kugumikiriza states:

I am obliged that my learned friend has eventually seen it. I, therefore, do not object to the application for withdrawal but to the prayer that each party bears its own costs. It has no The respondent had made adequate justification at all. preparations for the hearing of this appeal. We even have filed a list of authorities. In all fairness the respondent should be awarded costs since it was the appellant who decided to withdraw. I also pray that the respondent's properties and relevant documents produced into court as exhibits be returned to him. The lists of the said exhibits appear on pages 154-155 and 208-248 of the record of proceedings. Those are my prayers.

URT OF APPEAL OF UGANDA CERTIFIED TRUE COPY GIS RAR

## Ms Mulyasgonja states:

I have no objection to returning the respondent's properties and their titles exhibited into court to him. However, on costs the matter had not gone on trial. We also prepared for the appeal and compiled a list of authorities. I still pray that each party pays its own costs. There is no justification for awarding

the respondent costs.

## Court

On the application of the appellant the appeal is, hereby, withdrawn. In our view the respondent is entitled to costs because he was brought to court by the appellant. He is, hence, awarded costs of this appeal.

Further it is ordered that the properties and documents 20 produced and exhibited into court be returned to the respondent as prayed by his counsel.

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Dated at Kampala this $18^{th}$ day of May 2005.

L. E. M. MUI HON. DEPURY CHIEF JUSTICE

A. E. N. MPAGI-BAHIGEINE HON. JUSTICE OF APPEAL

HON. JUSTICE OF APPEAL