Concorp International Ltd v Eastern & Southern Trade and Development Bank (HCT-00-CV-CS-0048-2001) [2001] UGHC 117 (19 May 2001)

Full Case Text

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## **THE REPUBLIC OF UGANDA**

## IN THE HIGH COURT OF UGANDA AT KAMPALA *HCT-00-CV-CS-0048-2001*

*DEFENDANT* PLAINTIFF Versus CONCORP INTERNATIONAL LTD. ... EASTERN & SOUTHERN TRADE And dev. bank

Before: *HIS LOIWSHIPJUSTICE AKIIKI-KIIZA*

RULING

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The plaintiff brought an action against the defendant for *inter* a»//A general '■ damages for a breach of contract and misrepresentation.

H There are some applications filed after the main suit. When one of them came up for hearing, the learned counsel for the defendant raised a preliminary objection in that, the application and indeed th^ main suit were pre-maturely filed as it was contrary to tfie provisions contained in the Eastern and

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Southern African Trade and Development Bank Statute 1992. That the plaintiff never obtained a waiver from the President before opening proceedings against the defendant, hence matters should be dismissed with costs.

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**10 15** l| On the other hand, the learned counsel for the plaintiff stated that the preliminary objection was misconceived and submitted to the effect that the defendant bank is not immune ror prosecution as this was purely commercial transaction and of public nature. He cited a decision by *Kenya Court of Appeal (TONONOKA STEELS LIMITED -VS- THE* 1 *EASTERN & SOUTHERN AFRICA TRADE &* I, *DEVELOPMENT BANK, Kenya Court of Appeal, Civil Appeal NO. 255/98, unreported)*

*Of* course1 The Kenya Court ofAppeal does not bind this court, but its decisions have some persuasive value.

**20** He also cited other English cases on the same principle as that pointed out by the Kenya Court ofAppeal to the effect that the defendant tank if it lends out money, to private individual I! companies, it can be sued, hence the preliminary objection was misconceived and should be overruled with costs.

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In reply, the learned counsel for the defendant submitted to the effect that their client was not disputing the fact that they can be sued; but rather that a waiver from the . President was necessary before suing his clients.

- **10** Statute NO. 7/92 is the Eastern and Southern African Trade and Development Bank Statute. It provides for the carrying out of obligations!!of the government of Uganda arising under the charter of Eastern & Southern African Trade & Development bank and for other matters relating thereto. - **15** Section 4 of this statute declares Articles 24- and 43 of the charter havinjg the force of law in Uganda.

Article 43 ofthe Charter is relevant for our purposes here.

Article 43C3) provides as under;-

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**HI** - *"43(3) The bank its property and assets shall enjoy immunity brom every form oflegalprocess except in so far as in any particular case, it has through-the President, expressly waived its immunity"*

My understanding ofthe above provisions is that, generally the bank is immune from prosecution, but such immunity is not Absolute and could be waived by the President.

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Therefore, I tend to agree with the learned counsel for the $5$ , defendant in that, what is in issue before this court is not whether the Bank can be sued at all, but that, before suing the bank, a waiver must be sought and obtained from the President. This was not done in this case.

In my view, the cases cited by the learned counsel for the plaintiff would be useful to him if the defendant was contending that they could not be sued at all, which is not the case.

Alt in all, I would uphold the preliminary objection raised by the learned counsel for the defendants and the suit is dismissed for $15$ being pre-maturely filed. The defendant will have their costs. Order accordingly

ΊΙΚΙ-ΚΙΙ*ΤΑ* 19.05.20C

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