Libyan Arab Foreign Investment Co (LAFICO) v Southern Investments Limited (Civil Appeal No. 198 of 2014) [2022] UGCA 366 (18 October 2022)

#### THE REPUBLIC OF UGANDA

# IN THE COURT OF'APPEAL OF UGANDA AT KAMPALA

# CIVIL APPEAL NO. 0198 OF 2014

#### LIBYAN ARAB FORETGN INVESTMENT CO (LAFICO) APPELLANT

#### VERSUS

#### SOUTHERN INVESTMENTS LIMITED::::::::::::::::::::::::;;;;;;;;;RESPONDENT

(Appeal from the decision of the High Court of Uganda at Nakowa before Mutondha, J. (as she then utas) dated the'lh daA of February, 2O13 in Ciuil Suit No. 250 of 20 1 1)

# CORAM: HON. MR. JUSTICE CHEBORION BARISHAKI, JA HON. MR. JUSTICE CHRISTOPHER MADRAMA, JA HON. LADY JUSTICE IRENE MULYAGONJA, JA

#### JUDGMENT OF CHEBORION BARISHAKI, JA

This appeal is from the decision of the High Court (Mwondha, J. (as she then was)) in a suit filed by the respondent against the appellant.

# Background

The Respondent, by its suit, sought to recover USD 9,500,000 as money due under a commission agreement it had executed with the appellant. The respondent claimed that the commission agreement was executed on 9ft September, 2001, and by that agreement, the appellant engaged the respondent


/

to recover debts owed by the Government of Uganda to the state of Libya, to the tune of USD 166,757,826.86. The appellant had been appointed for that purpose by the Government of Libya. The appellant executed powers of attorney authorizing the respondent to act on its behalf.

The respondent further claimed that the agreement stipulated that it would be paid 15% if it collected the whole debt or 10% if the amount recovered did not exceed 7 5o/o of the whole debt. Further, that after exercising all necessary skill and diligence, it managed to collect only part of the debt, to the tune of USD 95,000,000. The respondent claimed that the appellant however failed and or refused to pay the commission which had accrued to the respondent despite several demands, hence the suit for recovery of the commission.

The appellant liled a written statement of defence conceding that it executed the agreement as claimed by the respondent. The appellant however stated that the agreement had lapsed on 9u September, 2OO3. The appellant further claimed that on 25e January,2006, the parties entered a further agreement in which they agreed on payment to the respondent of US Dollars 2,560,628 as the full and final outstanding amount for the services rendered by the respondent. The appellant claimed that it duly paid the said monies to the respondent and thereby remained with no outstanding obligations under the commission agreement. The appellant also pleaded that the respondent's suit was time barred, as it was lodged in 2O11, more than 8 years after the cause of action accrued upon lapsing of the agreement between the parties. The appellant also pleaded that the respondent's suit was premature as it was hled before the parties attempted amicable settlement and arbitration.

The learned trial Judge, in her Judgment overruled the preliminary points. She found that the respondent's suit was liled within time. In her view, the respondent's cause of action accrued after 3lst July, 2009, the date when the last of the monies recovered by the respondent were paid by the Government of Uganda. With regard to the plea that the respondent was supposed to atte t


amicable settlement and arbitration before filing the suit, the learned trial Judge found that there was a lot of room for arbitration or settlement, but the parties had not succeeded in getting a positive outcome. The learned trial Judge also stated that the Court was, under Article 126 (2) (e) of the 1995 Constitution, enjoined to consider the case on its merits without undue regard to technicalities like insisting on amicable settlement or arbitration.

On the merits of the case, the learned trial Judge found that the appellant was, under the commission agreement, liable to pay lO%o which amounts to US Dollars 9,50O,OOO of the amount of US Dollars 95,000,000 that the appellant had recovered on its behalt but had not done so. She also found that although the parties had made a subsequent agreement hxing the commission payable to the respondent at US Dollars 2,560,628 but the appellant had also not paid this money to the respondent. The learned trial Judge entered judgment for the appellant to pay US 9,50O,O00, because in her view, there was evidence that the appellant agreed to be bound by the earlier agreement, despite having concluded the latter agreement for a lower commission.

Being dissatisfied with the decision of the learned trial Judge, the appellant now appeals to this Court on the following grounds:

- The learned tial Judge erred in law and fact uhen she failed to properlg eualuate the euidence on record and thus came to a urong conclusion occasioning a miscanriage of justice to the appellanL 1 - 2. The learned tial Judge ered in laut and fact when she failed to properlg eualuate the euidence on record and came to the conclusion that tle cause of action in respect of which the plaintiff/ respondent compang had to sue uas after 31st JUIA, 20O9 and therefore tle suit could not be time barred. - 3. The learned tial Judge erred in laut and fact uhen she Jailed to properlg eualuate the euidence on record and came to the conclus


that the suil rzas not premdture in relation to Article 10 of the agreement prouiding for arbitration prior to a suit between the parties.

- 4. Tle learned trial Judge erred in lau and fact when she failed to properly eualuate the euidence on record and came to the conclusion that the defendant/ appellant conceded to tle plaintiff's seruices as uell as the monetary ualue. - 5. The learned tial Judge ened in laut and fact when she failed to properly eualuate the euidence on record and came to the conclusion that the defendant/ appellant did not proue at all that USD 2,560,687 (United States Dollars Tuo Million Fiue Hundred Sixtg Thousand Six Hundred Eighty-Seuen) was paid and fitrther that the payment utas reduced from 1O% of the amount recouered in a manner that is final and binding.

The appellant prayed this Court to allow the appeal, set aside the judgment and decree of the trial Court and grant costs of the appeai to the appellant.

The respondent opposed the appeal.

# Representation

At the hearing, Mr. Yesse Mugenyi, Mr. David Ssempala and Mr. Richard Ceaser Obonyo, all learned counsel, jointly appeared for the appellant. Mr. Simon Peter Kinobe, Senior Counsel and Mr. Kavuma Kabenge and Mr. Solomon Sadam both learned counsel appeared for the respondent.

Both sides filed written submissions in support of their respective cases which have been considered in this judgment.

# Appellant's submissions

Counsel for the appellant in their submissions argued grounds 1, 4 and 5 jointly, and ground 3 independentl ound 2 independently,

Counsel submitted on ground 2 that the learned trial Judge erred when she found that the respondent's suit was not time barred. He contended that the learned trial Judge misconstrued that the respondent's cause of action arose on 3l"t January, 2009, the date when the Government of Uganda was, expected to pay the final amount of the debt owing to the state of Libya per schedule agreed to with the Government of Libya. In counsel's view, the schedule had been given by the Government of Uganda to the Government of Libya and therefore did not affect the reiationship between the appellant and the respondent and thus the learned trial Judgc had erred in relying on it to conlpute the lirnitation period.

Counsel further submitted that what governed the relationship bctween the appellant and the respondent was the debt recovery agreement they executed on th September, 2001 to run for a period of one year which had expired on 10ti' September, 2002. Counsel contended that the respondent's cause of action therefore arose on 10th September, 2OO2 and since the action was based on contract, it became time barred after 6 years that is on 10ft September, 20O8. Counsel submitted that, therefore, the respondent's suit which was filed in 2011 was time barred.

On grounds 1,4 and 5 counsel faulted the learned trial Judge for Iinding that the respondent recovered USD 95,000,00O from the Government ofUganda. Counsel submitted that the evidence contained in the agreement of the parties dated 25n January, 2006 exhibit D1 showed that the Government of Uganda paid cash of USD 22,000,000 and equity in the National Housing and Construction Cooperation Ltd valued at USD 2O,3OO,OOO for a combined amount of USD 42,300,000. Counsel contended that there was no other evidence on record upporting the respondent's claim that it recovered USD 95,000,000. Counsel urther submitted that it was on the basis of the cash received that the appellant ed to pay and actually paid USD 2,560,628 to the respondent.

t was further <sup>S</sup>ubm tted that <sup>e</sup>il rn <sup>C</sup> d trial Jud <sup>e</sup> had m SCon <sup>S</sup>trued th<sup>c</sup> <sup>c</sup> d <sup>C</sup> nce h f p re p d <sup>n</sup> t <sup>e</sup> .1ITIount <sup>o</sup> moncv :].vab <sup>c</sup> t<sup>o</sup> th<sup>C</sup> <sup>S</sup> <sup>o</sup>ndent <sup>C</sup>ou<sup>n</sup> <sup>S</sup><sup>C</sup> <sup>C</sup> <sup>o</sup>ntCncl <sup>C</sup> thl1 t "t

debt recovery agreement exhibit P I between the parties provided that if the respondent collected less than SOoh ol the whole debt of USD 166,757,826.82, the respondent would not be entitled to 10% of the amount collected and the appellant would be entitled to negotiate for reduction of the commission payable. Counsel pointed out that this is what happened because the respondent recovered only USD 43,200,000 which was less than 5O% of the total debt, the appellant obtained an agreement for the reduction of the fees payable hence the payment of USD 2,560,628 to the respondent. Counsel submitted that the parties according to the agreement exhibit D1 agreed that the payment of USD 2,560,628 would be the final entitlement of the respondent. The learned trial judge theref<rre erred when she found that the higher amount of USD 9,500,000 was payable.

Counsel further submitted that the learned trial judge erred when she found that the appellant never paid USD 2,560,628 contrary to the evidence on record contained in exhibit D2 which shows that the respondent was paid via its account in Tropical Bank.

Furthermore, counsel contended that the appellant was wrongly sued for recovery of the monies since it was an agent for a disclosed principal. Counsel referred to the debt recovery agreement exhibit Pl wherein thc appellant disclosed that it had been authorized by the Libya Government to recover the monies in issue. Counsel contended that the Libya Government was the right party to be sued in the circumstances. In support of the submissions on this point counsel referred to the decision of the High Court in Kashogyera and Another vs. Magara and Another, High Court Civil Suit No. 576 of 2OO4.

Counsel submitted on ground 3 that the learned trial Judge erred when she failed to refer the dispute between the parties for arbitration yet article 10 of the debt recovery agreement contained a clause mandating the parties conduct arbitration should a dispute arise. Counsel submitted that under Section 5 of the Arbitration and Conciliation Act cap. 4, where a dispute with an applicablfiu J

arbitration agreement is brought before a Court, it should, before proceeding to hear the matter, refer it for arbitration. Counsel further submitted that the import of the foregoing provision was discussed in NSSF vs. Alcon International Supreme Court Civil Appeal No. 2 of 2OO8 (unreported). Counsel also cited the case of Power and City Contractors vs. UTL, High Court Miscellaneous Application No. O062 of 2Oll where Musota, J. (as he then was) stated that a clause to refer a dispute for arbitration is a contract with enduring and special effect. An arbitration agreement has a binding effect on the parties therein.

# Respondent's submissions

Counsel for the respondent argued each ground independently in ascending order and on ground t he submitted that the ground offended Rule 86 (1) of the Rules of this Court in that, contrary to that rule, the ground was general and did not specify the evidence which was poorly evaluated by the learned trial Judge. Counsel strbmitted that the practice of this Court is to strike out such poorly drafted grounds as was done in thc case of Celtel Uganda Ltd, tl a Zaia Ugaloda vs. Karungi, Civil Appeal No. 73 of 2013 (unreported). Counsel urged this Court to strike out ground 1 .

On ground 2 counsel submitted that the learned trial Judge made no error rn her computation of the timelines as to when the respondent's cause of action accrued. He pointed out that the parties' agreement was for the respondent to recover debt owing to the State of Libya by the Government of Uganda and for the appeliant to pay a commission depending on the amount recovered. The respondents' counsel further pointed out that the recovered debt amounted to USD 95,000,000/:. Furthermore, counsel pointed out that the Government of Uganda gave a schedule for paying the debt, with the last instalment paid on 31"t July, 2009, and thus the respondent's cause ofaction accrucd on that date. Counsel submitted that the respondent was therefore within time when it file\$ the suit in 2011 to recover commission from the appellant. 3

On ground number 3 of the Appeal it was submitted foe the respondent that the iearned trial Judge proceeded correctiy when she decided the matter without referring the parties to arbitration. Counsel contended that the appellant did not satisfy the necessary conditions before a matter can be referred to arbitration and referred to the case of Shell (U) Ltd vs. Agip (U) Ltd, Supreme Court Civil Appeal No. 49 of 1995 (unreportedl where Tsekooko, JSC discussed the conditions to be satisfied before a court can refer a matter to arbitration. The conditions include inter alia; that an application for stay must be made by one of the parties; the application is made after appearance by that party, and before the party has delivered any pleadings or taken any step in the proceedings and the party applying for the stay was and is ready and willing to do all the things necessary for the proper conduct of the arbitration. Counsel submitted that the appellant failed to make an application for stay of proceedings yet it had ample time to do so between the date of Iiling the suit in 2Ol1 and the conclusion of the hearing in 2013. Counsel pointed out that the appellant only raised the issue on reference for arbitration in the final submissions when the parties had closed their respective cases. Counsel contended that the learned trial Judge was right when she found that the appellant had no interest in pursuing arbitration and was raising the matter as a delaying tactic.

Counsel submitted that learned trial Judge did not makc any finding from which ground 4 could arise and therefore the ground was misconceived.

As for ground 5, counsel submitted that the evidence clearly indicated that the appellant recovered USD 95,OO0,00O owing to the respondent's input, and as per the parties' agreement, the respondent was entitled to receive 10% of the amount recovered, which was USD 9,500,0OO/ =. Counsel pointed out that although there was a subsequent agreement exhibit Dl where it was agreed that the respondent would accept a lesser sum of USD 2,560,628, the appellant was not a party to that agreement and could not enforce it. In addition, counse( v

contended that the agreement was unenforceable by virtue of the common law rule, articulated in Pinnel's case [16O2] 5 Co. Rep 117 and in Foakes vs. Beer, 9 App. Cas. 605, that a contract for payment of a lesser sum without fresh consideration does not extinguish the entire debt. Counsel submitted that the appellant did not furnish fresh consideration to justify the respondent to accept a lesser sum.

Furthermore, counsel submitted that in any case, there was no evidence that the appellant paid the lesser sum of USD 2,560,628. Counsel noted that the appellant adduced evidence of a transfer document exhibit D2 indicating that funds were transferred to the respondent, but he submitted that the learned trial Judge rightly found that the document did not provide credible evidence that the money in issue was transferred to the respondent's account in Tropical Bank.

In conclusion, counsel prayed this Court to disallow all grounds of appeal.

Counsel for the appellant made submissions in rejoinder in which he mostly reiterated his earlier submissions.

# Resolution of the Appeal

I have carefully studied the record, and considered the submissions of counsel for both sides and the law and authorities cited. This is a lirst appeal and under Rule 30 (l) (a) of the Rules of this Court, this Court, when handling such appeals, is expected to reappraise the evidence and make inferences of fact. Further, in Kifamunte vs. Uganda, Criminal Appeal No. 1O of L997 (unreported), the Supreme Court stated that a lirst appellate court has a duty to review the evidence of the case and to reconsider the materials before the trial judge, and thereafter arrive at its own conclusions.

Ground 1 was framed thus; "the learned trial Judge erred in law and fact when she failed to properly evaluate the evidence on record and thus came to a wrong conclusion occasioning a miscarriage of justice to the appellant". p- )

$\mathcal{L} = \mathcal{L}$ Rule 86 (1) of the Rules of this Court which sets out what should be contained in a memorandum of appeal. It provides that;

(1f A memorandum of appeal shall set forth concisely and under distinct heads, without argument or narrative, the grounds of objection to the decision appealed against, specifying the points which are alleged to have been wrongfully decided, and the nature of the order which it is proposed to ask the court to make.

It is now trite that Rule 86 (l) imposes a requirement that grounds of appeal must speci\$ the points in the decision of the lower Court which are being disputed. General grounds cannot suffice and will be struck out for contravening the highlighted rule. In my view, ground I is a general ground which does not speci\$/ the evidence that the learned trial Judge poorly evaluated. I therefore find that it contravenes Rule 86 (1) and I accordingly strike it out.

On ground 2 ,l am of the view that , the learned trial Judge committed no error when she found that the respondent's cause of action arose after 3 I "t July, 2009 and was therefore not time barred. The parties'agreement was for the respondent to assist the appellant to secure the Government of Uganda to pay outstanding debt to the State of Libya. The process of recovering debts may require negotiations that take place over a period of time, and this appears to have been the case with the debt in the present case. From the time the appellant engaged the respondent in 20O1, the Government of Uganda finally paid the outstanding monies in 2009. The respondent's case was that it was involved in securing the Government of Uganda to pay the said monies and was entitled to commission for doing so. Since the debt was hnally paid in 2OO9,l agree with the learned triai Judge that the respondent's cause of action accrued then and thus at the time of filing the suit in 20ll, the respondent was still within the prescribed timq,-., of6 years for filing actions based on contract. \_\-


#### Ground 2 must therefore fail.

Ground 3 faults the learned trial Judge for having overruled the appellant's request, although made in counsel's submissions, to have the parties' dispute referred to arbitration, in accordance with provisions in the relevant contract. In resolving this ground, I am persuaded by the submission of counsel for the respondent based on the principles articulated in Shell (U) Ltd vs. Agip (U) Ltd, Supreme Court Civil Appeal No. 49 of 1995 (unreported), to the effect that a party seeking the Court to stay proceedings and refer a matter for arbitration must make an application for the purpose at an early stage in the proceedings. In that case, Tsekooko, JSC guided that; the application to refer a matter to arbitration ought to be made after appearance by the party seeking the said reference and before the party has delivered any pleadings or taken any other steps in the proceedings. In the present case, the appellant made no application to refer the dispute for arbitration. The appellant participated in the proceedings and only raised the issue of arbitration through counsel's submissions. In those circumstances, I think that the learned trial Judge was right when she concluded that the appellant did not show any interest in pursuing arbitration.

Ground 3 of the appeal fails.

I agree with counsel for the respondent that the learned trial Judge did not make any finding from which ground 4 arises and will not delve into it.

The appellant's case in ground 5 is that the learned trial Judge erred when she found that the parties did not make a binding agreement for the appellant to pay to the respondent a sum of USD 2,560,687 as the latter's full entitlement under the commission agreement. The appellant's case is further that the learned trial Judge erred when she found that the said sum was not paid to the appellant.

In order to resolve ground 5, it is worth going over the factual background to the case. Before 2001, the State of Libya advanced several loans to the Government of Uganda, and as at 9<sup>th</sup> September, 2001 the debt payable by the latter to the former stood at USD 166,757,826.86. The State of Libya, through the Libyar

Treasury authorized the appellant to recover the outstanding debt and the appellant in turn sought the services of the respondent for the same purpose. The appellant and the respondent on 9e September, 20O1 executed an agreement for the purpose of setting out the commission payable to the respondent.

The appellant did not dispute that the respondent made input in securing the Government of Uganda to pay its debt. But in my view, the nature of the task of recovering the debt in issue involved the input of other players such as officials from the Government of Uganda and the State of Libya. On 12s October, 2OO1, then Minister responsible for Finance Mr. Gerald M. Ssendaula held a meeting with a Libyan Official Dr. Khaled Zenner at which the Government of Uganda requested the State of Libya to reschedule the payment of the debt because the Government was facing difficulty in paying the loan. Subsequently, the parties entered into a further agreement on Sfr June, 2OO5, wherein the State of Libya agreed to cancel up to 49o/o of the debt and that USD 95,O0O,00O would be paid to the State of Libya as full and final settlement of the remaining debt. As for the outstanding debt it was agreed that the Government of Uganda would sell to the State of Libya, equity constituting 49Vo of t}le shares in the National Housing and Construction Corporation (NHCC) valued at USD 2O,30O,OOO. It was also agreed that the balance of USD 74,7OO,OOO would be paid in cash but in an amortized manner, with diverse periodic payments expected to be made between 30th June, 2005 and 31"t July, 2009.

On 25n January, 2006, the State of Libya, through its General Popular Committee for Treasury concluded an agreement with the respondent. In that agreement, the parties acknowledged that whereas the Government of Uganda had agreed to pay USD 95,000,000, it had as at the date of the agreement paid a combined sum of USD 42,lOO,0OO comprising of USD 20,lOO,O00 in equity in NHCC and a cash payment of USD 22,OOO,OO0.lt was further agreed that the respondent would be paid USD 2,560,628 and specifically that: Upon receipt of the amount of money mentioned in paragraph 3 of this agreement tV tne seco\$ party (respondent), the second party will have received al1 its entitlement for having followed up the recovery of the Great Jamahiriya's loan to the Republic of Uganda. It was also an obligation on the first party to offer any assistance in an effort to recover the remaining loans.

According to the agreement, at the time of its signing, the respondent had already received USD SOO,OOO with a balance of USD 2,060,628 outstanding. It is worth pointing out that the agreement of 25s January, 2006 constituted a new agreement wherein the respondent agreed to receive USD 2,560,628 for its assistance in securing the Government of Uganda to pay the relevant debt. Further, although the Government of Uganda agreed to pay a debt of USD 95,000,000, as at 25th January, 2006, only part of the debt had been paid. The respondent pleaded that as at the date of filing its plaint on 28e November, 201 1, the entire amount of USD 95,00O,OOO had been paid. The defendant now appellant did not deny this fact in its Written Statement of Defence.

Having found that since the respondent accepted payment of USD 2,560,628 which constituted a lesser sum than it would have been entitled to, thc question for determination then is whether the respondent's acceptance constituted a new agreement. The general rule is that parties are bound by the contracts they make where no vitiating factors exist. Counsel for the respondent however submitted that the agreement to accept USD 2,560,628 was not binding on the respondent for lack of consideration. Counsel relied on the rule articulated in Pinnel's case [1602] 5 Rep. 117 a. and discussed in Foakes vs. Beer [1884] UKHL 1 that payment oflesser sum in satisfaction of a greater sum of a debt is unenforceable unless the person paying the lesser sum offers consideration. However , counsel for the respondent did not address himself to the fact that several exceptions have been developed against this rule including the promissory estoppel exception. This exception is based on the principle of promissory estoppel which was discussed by Denning, J. in Central London Property Trust Ltd v High Trees House Ltd [1956] 1 All ER 256 as follows: ru

)

"As to estoppel, this representation with reference to reducing the rent was not a representation of existing fact, which is the essence of common law estoppel; it was a representation in effect as to the future—a representation that the rent would not be enforced at the full rate but only at the reduced rate. At common law, that would not give rise to an estoppel, because, as was said in Jorden $v$ Money (1854) (5 HL Cas 185), a representation as to the future must be embodied as a contract or be nothing. So at common law it seems to me there would be no answer to the whole claim. What, then, is the position in view of developments in the law in recent years? The law has not been standing still even since Jorden $v$ Money. There have been a series of decisions over the last fifty years which, although said to be cases of estoppel, are not really such. They are cases of promises which were intended to create legal relations and which, in the knowledge of the person making the promise, were going to be acted on by the party to whom the promise was made, and have in fact been so acted on. In such cases the courts have said these promises must be honoured. There are certain cases to which I particularly refer: Fenner v Blake ([1900] 1 QB 426), Re Wickham (1917) (34 TLR 158), Re William Porter & Co Ltd ([1937] 2 All ER 361) and Buttery v Pickard (1946) (174 LT 144). Although said by the learned judges who decided them to be cases of estoppel, all these cases are not estoppel in the strict sense. They are cases of promises which were intended to be binding, which the parties making them knew would be acted on and which the parties to whom they were made did act on. Jorden $v$ Money can be distinguished because there the promisor made it clear that she did not intend to be legally bound, whereas in the cases to which I refer the promisor did intend to be bound. In each case the court held the promise to be binding on the party making it, even though under the old common law it might be said to be difficult to find any consideration for it. The courts have not gone so far as to give a cause of action in damages for

breach of such promises, but theg haue refused to allou the partg making thetn act inconsistentlg roith then. It is in that sense, and in that sense only, that such a promise giaes rlse to an estoppel. The cases are a ndturd.l result of the fusion of law and equitg; Jor the cases oJ Hughes a Metropolitan Rg Co (1877) ( 2 App Cas 439), Birmingham & District Land Co o London & North Western Rg Co (1888) (4O Ch D 268), and Salisbury v Gilmore ([1942] 1 All ER 457), shou that a partg will not be allowed in equitg to go back on such a promise. The titne has nou) come for the aaliditg oJ such a promise to be recognized. lhe loqicrrl consequence, no doubt, is thot a prornise to d.ccept a smaller sum in dlscharse of a larqer sulm. if acted on. is bindinq. notuithstandinq the absence of conslderatlon. and if the fusion of lau.t and equitu leads to that result. so much the better." Emohasls added.

The principle as I understand is that where a Iirst part5r agrees to a smaller sum as a full and final settlement of a larger sum and the second party acts on that agreement, the first party will be bound by the agreement and barred from insisting on the larger sum payable. In the present case, thc respondent was bound by the agreement where it accepted to receive USD 2,560,628 as its full entitlement for securing the debt and could not insist on being paid more than that. The learned trial Judge therefore erred when she found that the respondent as entitled to be paid USD 9,500,O0O which was more than what had bcen d upon.

e question to be resolved then is whether or not the respondent was paid the um of USD 2,560,628 as per the agreement of 25th January, 2006. As I stated arlier, the respondent received USD 5OO,OOO upon signing of the agreement. e appellant insists that the respondent was paid the balance of USD 2,060,628 ia a bank transfer as indicted in exhibit DE2. That thc money was deposited nto the respondent's account in Tropical Africa Bank. Although the said bank ansfer showed that a sum of USD 2,060,628 was transfcrrcd from Libya oreign Bank, unlike the transfer and receipt of the USD 5OO,OOO the k

transfer for USD 2,060,628 on scrutiny by court did not indicate the recipient of the money. In my view, there was no credible evidence showing that the ppellant paid to the respondcnt all the monies agreed upon in the agreement of 25rh January, 2006. The evidence only pointed to payment ol USD 50O,00O round 5 of the appeal must therefore fail.

n the result the appeal substantially fails. I would find that the appellant paid the respondent the sum of USD 500,000 leaving an outstanding balance of SD 2,060,628 which remains unpaid to date.

accordingly set aside the judgment and decree of the learned trial Judge and ubstitute an order for payment by the appellant to the respondent of USD ,060,628 together with interest at lOo/o pa from date of judgment till payment n full. The appellant shall pay costs of the appeal and those in the Court below.

ince Madrama and Mulyagonja JJA. also agree, the appeal partially succeeds th the following orders;

- 1. The judgment and orders of the High court in Civil Appeal No. 250 of 201 I are set aside - 2. The appellant shall pay the respondent USD 2,060, 628 with interest at the rate of lO"/o pa from the date of judgment until payment in full - 3. The appeilant shall pay half of the costs of the appeal and in the court below to the respondent.

t is so ordered

\t6 v <sup>O</sup>\,- ated at Kampala this day of 2022.

cborion Barishaki

Justice of Appeal

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CIVIL APPEAL NO. 0198 OF 2014

Coram: Cheborion Barishaki, Madrama & Mulyagonja, JJA

#### LIBYAN ARAB FOREIGN INVESTMENT CO (LAFICO):::::::::::::::APPELLANT

#### **VERSUS**

SOUTHERN INVESTMENTS LIMITED::::::::::::::::::::::::;;;;;;;;;;RESPONDENT

(Appeal from the decision of the High Court of Uganda at Nakawa before Mwondha, J. (as she then was) dated the $7<sup>th</sup>$ day of February, 2013 in Civil Suit No. 250 of 2011)

#### JUDGMENT OF IRENE MULYAGONJA, JA

I have had the benefit of reading in draft the judgment of my learned brother Cheborion Barishaki, JA. I agree that the appeal partially succeeds and with the orders that he has proposed.

Dated at Kampala this $\frac{1}{\sqrt{6}}$ day of $\frac{1}{\sqrt{6}}$ 2022.

Irene Mulyagonja **JUSTICE OF APPEAL**

$\mathbf{A} = \mathbf{A} \times \mathbf{A}$

## THE REPUBLIC OF UGANDA,

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

(CORAM: CHEB0RI0N, MADRAMA AND MULYAGONJA, JJA)

## CIVIL APPEAL N0 0198 OF 201t+

BYAN ARAB FOREIGN INVESTMENT CO (LAFICO)} APPELLANT

#### VERSUS

oUTHERN TNVESTMENTS LIM|TED) RESPONDENT

(Appeal from the decbion of the High Court of Uganda at Nakawa before Mwondha, J (as she then was) dated the Vh day of Februa4q 2013 in Civil Suit No 250 of 20ll)

### JUDGMENT OF CHRISTOPHER MADRAMA, JA

have had the benef it of reading in draft the judgment of my learned brother on. Mr. Justice Cheborion Barishaki, JA

agree with him that the appeat be partiatly attowed with the orders roposed and for the reasons he set out in the judgment and I have nothing seful. to add.

ated at Kampa[a the t\ hristopher Madrama lzama day of eil. <sup>2022</sup>

ustice of Appeat

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