Esso Standard (U) Limited v Semu (Civil Appeal 3 of 1993) [1993] UGSC 42 (21 October 1993)

## HON. JUSTICE ODER

IN THE SUPREME COURT OF UGANDA

AT MENGO

MANYI'DO D. C. J.) (CORAM:

## CIVIL AFPEAL NO. $3/93$

B E T W E E N

ESSO STAN ARD $(U)$ LTD :: :: ::

APPELLANT

## A N D

RESPONDENT SEMU AMANU OPIO $\cdots \quad \cdots \quad \cdots \quad \cdots$ $: :$ $: :$ $: :$

> (Appeal from the decision of the $H/C$ (Hon. R. RAJASINGHAM) Q. C.) dated 26-6-92, in H. C. C. S. No. $343/87$ )

## ORDER OF MANYINDO - D. C. J.

The case file was placed before me under Rule 34(c) of the Rules of this Court for settlement on an Order given by this Court in a Judgement on appeal on 15-7-93.

The respondent Opio, sued the Appellant Company in the High Court for breach of contract and for return or replacement of his property which he lost at the hand of the Under an agreement the respondent was managing appellant. the appellant's Petrol Station at Tororo. Later the appellant was not satisfied with the performance of the respondent and so terminated the contract. The termination was abrupt. The respondent was not able to retrieve his properties including a safe and its contents from the station.

The trial Judge gave Judgement to the respondent for breach of contract for which an award of shs. 15,000,000= general damages was made. He was also awarded special damages for the lost property. As far as the safe was concerned the order was that the appellant should return the same to the respondent with its contents infact or pay a sum of shs.6, $140,000 =$ in lieu. $2/...$

The appellant appealed to tbis Couxt. The appeal was allorred. in part. The award of shs.6,14O'OOO,/- being the value of the safe was upheld. l9e did not deal with the guestion of the return of the saf . as it was not raised theo. In fact we were informed by Counsel in ttre casd that the safe was not available.

Prrsuant to the Judgenent of this Courtr Counsel for tbe responoent extracted an order. fn that ord.er tbe pqyinent of shs.6,140,0OO- was nentloned but nothing was said about the aLt.rrn tlve order by the r{i8h Court i'or the retl'rn of the safe. Counrel for the appellant declined to consent to the order on that accouni as they now clain that the saie ls avallable. It vras bhen tbat the oatter was referred to ne. There tlas no need for bhat since our order la clear and iD any case by the tlme of the referencet Both Counsel 1n the case had agreed to abide by the order of the EiEh Court. The only di.sagreement 1s as to where the saf: shoulil be inspected. The Counsel for the respontlent, who have t,.e keys to the aafe, would like bhe appellatrt to take the safe to their c:rambers at Jinja for inspection. On the otlier hand, the appellant qould like the other palty to come to their h.ad offlce at Kanpala where the safe ls kept aDaI inspect it.

Both Counsel appeared before me and confirned this state of af f aile. They th,..n struck a conpronise , . and sought an ordex 1n the fo]Io'; ing terns:

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that the safe be taken to the High Court at Kampala wit in 14 days from to-day and be opened in the presence of the Registrar of the High Cour; if it cannot open then it is not the respondent's original safe and the appellant should then pay to him the value of his safe as assessed at shs.6,140,000=; if it opens then the respondent must accept it as it is since he has been in possession of the keys to it all along.

An order is made in those terms. Today's costs shall be in the cause.

DATED at Mengo this 21st day of October, 1993.

SGD: S. T. MANYINDO DEPUTY CHIEF JUSTICE

I CERTIFY THAT THIS IS A TRUE COPY OF THE ORIGINAL.

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$...13$

**B. F. B. BABIGUMIRA** REGISTRAR SUPREME COURT