Uganda Posts and Telecommunications Corporation v International Television (Civil Suit 93 of 1997) [1998] UGHC 31 (25 August 1998)

Annexture

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA

CIVIL SUIT NO. 93 OF 1997

UGANDA POSTS & TELECOMMUNICATIONS CORP. :::::::::: PLAINTIFF

-versus-

INTERNATIONAL TELEVISION DEFENDANT 1111111111111111111 $H$ $O$ $i$ KATTO $2$ onc BEFORE; - HON. THE PRINCIPAL JUDGE - MR. JUSTICE J. H. NTABGOBA

## RULING

On 31.5.96 the Uganda Posts and Telecommunications Corporation (hereinafter referred to as the plaintiff) entered into an Agreement for Uplink Satellite Services with the International Television Network Limited (hereinafter referred to as the first defendant). Mr. Thomas Kato, the Chairman of the first defendant, signed the Agreement on behalf of the first defendant. I will hereinafter refer to Mr. Katto as the second defendant. According to the Agreement, the plaintiff is the National Telecommunications provider. And it can be judicially noticed that, actually it is.

According to the preamible to the Agreement, the plaintiff had express permission of the Government of the Republic of Uganda to sign a Protocol with the International Telecommunications Satellite (INTELSAT) to represent the Uganda Government in all dealings with the INTELSAT.

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It is also said, and not disputed, that the first Defendant received a licence from the Ministry of Information of the Government of Uganda to provide Television Services in Uganda, and that it is the first defendant which applied to the plaintiff in its capacity as a signatory to INTELSAT to be facilitated in providing the said Television Services using the INTELSAT Link-up under a 15 year lease.

In consideration of the facilities given to it, the First Defendant agreed to pay to the plaintiff, for transmission to INTELSAT, annual charges amounting to US \$575,000 to be paid in two equal instalments of US \$287,500 each at the intervals specified in the Agreement.

The subject matter of this suit is as is stated in paragraph 5 of the plaint, as amended (i.e. the Amended Plaint). Paragraph $5(ix)$ of the Amended plaint, in particular reads that:-

" The plaintiff has as a result of failure and or refusal by the First defendant to pay the prescribed charges. been forced by INTELSAT as a signatory to its Protocol on behalf of the Government of Uganda, to pay US \$170,000 as at 30th November 1996, and INTELSAT is threatening to cut off Satellite Services to Uganda unless all the charges due under the Agreement hereto attached have been paid in full".

Annexture 'C' of the amended plaint is alleged to be evidence of the payments by the plaintiff to INTELSAT. Paragraph $5(x)$ of the plaint is also pertinent in so far as it avers that:-

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" On its part the plaintiff did linkup the defendants with INTELSAT whose engineers came over (to Uganda) from the United States of America, tested the first defendant's equipment at Naguru Hill in Uganda and aligned it with INTELSAT airborne Satellite Station".

Paragraph $5(x)$ also tells about the cause of action as follows:-

" The necessary transponders applied for and booked by the defendants were availed to the defendants by INTELSAT for an agreed period of 15 years, and the defendants have failed or refused to pay for INTELSAT Services and facilitation charges to the plaintiff-- $\pi$ .

The plaintiff's prayers include.

- (a) Payment to INTELSAT Service charges of US \$ 575,000 and 10% handling charges; - (b) General damages, and - (c) Interest.

The W. S. D. alleges that the Agreement between the parties was obtained by misrepresentation, in so far as the first defendant, in its application, (lied) that it had authority to deal with INTELSAT on behalf of the Uganda Government, "when in fact it did not have such authority" (see paragraph $4(a)$ of the W. S. D. as amended). The defendants also contend that the Agreement was void for a number of reasons:-

(i) that the plaintiff had no authority to sue the defendants. A preliminary objection is threatened on this account.

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$\mathbf{L} = \mathbf{L} + \mathbf{L}$

- $(ii)$ that the agreement was not made under seal despite the provision in the Articles of Association of the defendant which provides that an agreement entered into by the defendant shall be entered under Seal. - (iii) that although the defendants had applied to the plaintiff for capacity on space segment covering Uganda, East and Central Africa (i.e. Footprints IS 702 at 359E) the plaintiff, without specifically notifying the defendants and obtaining their consent, varied the service area to Uganda only (Footprint IS 707 at 359E). On discovering the mistake, the defendant wrote a letter of protest to the plaintiff on 25th June, 1996.

There was in the W. S. D. a plea in the alternative to the above (i) to (iii) that:-

> " the defendants shall contend that although the plaintiff agreed to uplink the defendants with INTELSAT, it has never done so, and therefore there was a total failure of consideration on the part of the plaintiff, meaning that there was no contract if it lacked consideration. The defendants also denied knowledge of the plaintiff paying any money to INTELSAT or at all. Finally, the second defendant refuted the allegations in the plaint that he acted as guarantor for the first defendant in the Agreement."

True to its word, Mr. Paulo Sebalu, learned counsel for the defendant, first demanded to see the authority of the Government<br>the plaintiff to of Uganda to/represent it in all dealings with INTELSAT. Counsel also demanded to have a look at the alleged Protocol signed by the plaintiff with the Government.

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This is what Mr. Sebalu said:-

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" Before issues. I want to raise a preliminary point. The plaintiff states that it is acting for the Government. In paragraph 5(ii) of the plaint it says that the plaintiff signed a Protocol with the Government to represent it. -- Upon reading that claim, I applied for a copy of the Protocol which is alleged to give the plaintiff power to deal with INTELSAT. There is an agreement between the plaintiff and Government. They never replied to any request which was written on 6th May, 1997 and filed in Court on 7th May, 1997. It was served on Counsel for the plaintiff---. It is my contention that the plaintiff has no authority to represent the Government. I amended my W. S. D. in paragraph 4 accordingly. This is my preliminary objection that the plaintiff had no authority to sue and the suit should be dismissed with Costs".

I dare say at this juncture that Counsel for the defendant misconstued the plaint in so far as he indicated in his argument that the plaintiff was purporting to sue on behalf of the Government. That is not so. I agree with Mr. Ogalo, learned Counsel for the plaintiff that the suit was a simple action by whe plaintiff against the defendants in breach of executory agreement. Of course the plaintiff is not unblame worthy. It is the tautology of its plaint that led Counsel for the defendants to believe that the plaintiff was claiming to be epresenting the Government.

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My understanding of the case for the plaintiff is that it claims it obtained permission from the Government to deal with . INTELSAT in the Telecommunications Services which is the Speciality of the plaintiff. I understand it to say that in order to deal with INTELSAT it had to be permitted or authorised by the Government; that because it had been so empowered to deal with INTELSAT it acted by the Agreement with the first defendant, to linkup the latter with INTELSAT which is the case as borne $\frac{1}{2}$ out by facts. It is not in dispute that the defendants actually Sgot linkup with INTELSAT even though, as the W. S. D. alleges, the linkup did not cover the entire area of airwaves that had been contracted. At least the linkup was over Footprint IS 707 at 359E, although according to the Agreement it was supposed to linkup over the entire area covering Uganda, East and Central Africa (Footprint IS. 702 at 359E). I will come back regarding this failure to linkup the entire area of the agreed airwaves.

The trouble was brought by counsel for the plaintiff, Mr. Ogalo, who kept on applying for adjournments to produce the documents requested by Mr. Sebalu, which documents were never produced after several adjournments. The matter came to a head when on $30/7/98$ , the date I had designated as the hearing date, and despite my former order that the adjournment granted on $30/6/98$ was to be the last adjournment, there turned up in Court, on behalf of the plaintiff an advocate not from the firm of Advocates to which Mr. Ogalo belongs.

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ir. Paul Byaruhanga who came in with a notice of change of Advocates also wanted an adjournment - this time not to produce the documents required by Mr. Sebalu, but to enable him amend the plaint and also to apply for joinder of the Attorney General. It was because of these startling turns of events, and the failure of the plaintiff to produce the documents requested for, that brought about Mr. Sebalu's adjournments application, not only for the $\sqrt{2}$ application to be dismissed but also for suit to be dismissed with costs. His seriousness was exhibited from his application that, in the event the Court was inclined to grant the adjournment, then the plaintiff should be ordered to pay the Costs of the adjournment as a condition for such adjournment. I will now consider the merits and demerits (if any) of the two applications: one for dismissal of the suit and the other for adjournment to enable the plaintiff join the Attorney General as a Co-plaintiff. I will start with the application for the case to be dismissed:

$\mathbf{1.}$ The allegation in the amended W. S. D. (herein to be referred to simply as "the amended defence") was raised as a result of the plaintiff's averments both in the Agreement and in the plaint that the plaintiff had express permission of the Government of the Republic of Uganda and that it signed a Protocol with the INTELSAT to represent the Government in all dealings with INTELSAT. As I have already pointed out, Mr. Sebalu for the defendants challenged these averments as untrue and asked the plaintiff to produce the documentary evidence of the permission given by the Government to the plaintiff, as well as of the Protocol signed by the plaintiff with INTELSAT.

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As already mentioned, despite several adjournment to enable the plaintiff to locate the documents and produce them, the same have never been produced. This led to Mr. Sebalu's application that the suit be dismissed and also an argument that the Agreement was based on a misrepresentation and was therefore null and void and could not be invoked to sue for its breach.

inrong If my view is correct, and I think it is, that the plaintiff in its suit is not suing on behalf of anyone but on its own behalf, and that it is neither fronting for the Government of the Republic of Uganda nor for INTELSAT, then is the plaintiff not a victim of its imprecision and verbosity in its pleadings? What I mean is that it could have very well put its case without alleging that it had, for instance, signed a Protocol with INTELSAT unless it was prepared to produce a copy of such Protocol. As for the authority to deal with INTELSAT in all its Telecommunications dealings, surely the Minister of Works, Housing and Communications, Hon. John M. Nasasira did, in his two letters, leave no doubt in anyone's mind that the plaintiff was permitted) to deal with INTELSAT in Uganda over matters within the port folio of the plaintiff as the provider in the Republic of Uganda, authorised under the law to provide Telecommunications services". In his letter to the Chief Registrar on 19th February 1998, the Minister said:-

> " This is in reference to the objections raised by the defendant regarding UPTC's authority to represent the Government of Uganda in matters relating to INTELSAT.

$\cdot \cdot 9$ " This is to confirm that Uganda Posts and Telecommunications Corporation is the authorised signatory to the INTELSAT Agreement in Uganda and has been attending all meetings of signatories and meets other obligations on behalf of the Country.

" The second defendant approached both Government and INTELSAT and was advised to route his application through UPTC which he did and their application was granted and services provided by Intelsat. As such it is very surprising if the defendants are denying the authority of UPTC in processing their application".

Do I need to quote the above words from the same Minister's letter addressed to the Attorney General on 28th July, 1998, if only to emphasise that Government has confirmed, though not on Oath, but in the Minister's official communication to Court. that the plaintiff is authorised by Government to deal with INTELSAT. on the Government's behalf; that the plaintiff is the one that actually granted the defendants' permission to operate Television Services in Uganda and that having been so authorised by the plaintiff and are operating under such authority, they should be estopped from denying it and challenging the authority, so to say, biting the hand that fed them?

One may be tempted to argue that the Minister's letters were delivering the information not on Oath, but that is a matter besides the issue. That is a matter for probative evidence and should the defendants wish to verify the veracity 'of the Minister's information, he could be called on Oath at the trial of the substantive issues of the case.

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As matters stand, I think that the plaintiffs should be the doubt and be given the benfit of"/ allowed to present it. Who knows? May be the intended amendment is to disabuse the pleadings of the imprecision and verbosity I have alluded to.

There are some other grounds relied on by Mr. Sebalu, learned Counsel for the defendants for his request that the suit be terminated. He says that if the Agreement was not based on misrepresentation by that fact, the plaintiff was not empowered to sign a valid agreement unless it was done under Seal, in accordance with the provision of the Articles of. Association which required Contracts, agreements e.t.c. of the defendants to be entered into under the Company's Seal. In the first place, as Mr. Ogalo, pointed out in response. one would have expected learned Counsel to have produced that portion of the defendants' articles of association which requires that Contracts of the defendant should be done under its Seal. He did not produce it; he did not say it exists when he was on Oath. He said it from the Bar and it is up to Court to believe him or not to be believe him. But believing him or not is not that important seeing that Counsel is a well respected and honest Senior member of the Bar. I think the major consideration is whether the Agreement entered into between the parties in this case was necessarily a nullity by the reason that it was not made under Seal.

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The law on this has been long established since the decisions of the English Courts starting with the case of Nicholson -vs- Bradfield Union, L. R. 1. Q. B. 620 and Wells -vs- Mayor of Kingston - on - Hull, L. R. 10Cp.402. Prior to the decisions in those cases the tight common law rule was as had been enunciated in the case of Mayor of Ludlow -vs- Charlton, 6, $M & W$ 815 that:-

> " The Seal is the only authentic evidence of what the corporation has done or agreed to do. The resolution of a meeting however numerously attended is, afterall, not the act of the whole body. Every member knows he is bound by what is done under the common Seal and by nothing else. It is a great mistake, therefore, to speak of the necessity for a seal as a relic of ignorant times. It is no such thing. Either a seal, or some substitute for seal, which by law shall be taken as conclusively evidencing the sense of the whole body Corporate, is a necessity inherent in the very nature of a corporation".

The two subsequent cases I have cited above introduced a number of exceptions to the Mayor of Ludlow -vs- Charlton (Supra). The exceptions included such things as " matters of trifling importance, or daily necessary occurrence", such as "the supply of Coals to a work house, the hire of an inferior servant" e.t.c. And where a Minucipal Corporation owned a graving dock in constant use, it was held (in one of the above two authorities) that agreements for the admission of ships could be made by simple contracts without a seal.

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As a result of the passage in England, in 1908 of the Companies (consolidation) Act, S. 76 (re-enacting a similar provision in earlier Act) a Company incorporated under the Companies Acts, was allowed to enter, through its agents, into contracts in writing or by parol, in cases where such contracts could be entered into by private persons in like manner. By S. 34 of our Companies Act which appears to have had its roots in the 1908 English Act, a Company incorporated under the Act is allowed to enter into contracts, through agents, in writing or by payol, in cases where such contracts could be entered into by private persons in like manner (see S. $34(a)$ and (b) of the Companies Act, Cap. 85 of the Laws of Uganda 1964). In some other cases legislations have freed corporations from the necessity of contracting under Seal, and have provided different forms in which their common consent may be expressed. Indeed, with S. 34 of the Companies Act in place, and so as to ease modern trade and Commerce, which must, of necessity admit transactions through agency, cases of contracts by Companies without employing a seal have far out numbered those which contract under seal. There was a conflict in judicial decisions some time as to the liability of a corporation in cases where no contracts were made under seal but where goods had been supplied, or, as in the instant case, work done for the purpose for which the corporation or Company exists. This point was finally settled in Lawford -vs-Billericay R. D. C. 790371 K. B. 772 in which a Committee of a Rural District Council employed an engineer, already engaged by the Corporation for certain purposes, to do a number of acts in reference to work for which he had not been engaged.

The Committee had no power to bind the Corporation by entering into Contracts, but their minutes were approved, and their acts thereby affirmed and adopted by the Council. The Court held that the work done was work for the doing of which the Corporation was created and that having taken the benefit of the work they could not refuse to pay for it. It is perhaps to be noted that breach of an executory contract of employment made with an engineer, not under seal, would clearly have given no right of action to the engineer or to Corporation. I draw great solace from that decision in deciding in the instant case that the defendants having contracted with the plaintiff, though not under seal as stipulated by the defendants' articles of association, and the defendants having used the INTELSAT facilities as agreed in the Agreement and continuing to use such facilities even unto this day, they (the defendants) should not be allowed to refuse to pay the charges stipulated under the Agreement by hiding behind the lack of a seal. There is, of course, the argument that the Agreement involved the use of the facilities over a large area (Footprint IS. 702 at 359E) but that only the facilities over Uganda (Footprint IS 707 at 359E) was availed. That may be a valid argument but certainly not for the dismissal of the suit before it goes on trial. Again, I think, that will be a matter for evidence at the trial and could reduce the amount of fee or charges in quantum meruit.

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Finally, the issue of whether or not the second defendant was acting as a guarantor for the performance of the contract by the first defendant is clearly a simple matter. The facts are that the Agreement was signed on behalf of the first defendant by the second defendant - The first defendant not being a human person could not sign the agreement; it had therefore, in the reality of business, to sign through its Chairman. The Chairman was not signing a guarantee deed but was signing the agreement in the common course of business transaction. He has to be a party as is necessitated by law but he cannot personally be liable for the liability of his Company which is a corporation sole. All in all, the suit cannot be dismissed on the preliminary points raised by Mr. Sebalu. The other issue was as to whether an adjournment should be allowed, despite my order of 30.06.98 that it was then the final adjournment.

Mr. Byaruhanga addressed me on sufficient cause as he said why another adjournment was necessary. One obvious reason is that he had just been engaged by the plaintiff and he had had no time to study the case. The second reason is that he wishes to amend the plaint. It is now settled that where an amendment is to be made, a version of such intended amendment should be annexed to the application for the amendment. I think that should be understood as a good rule of convenience. But it should be noted that Mr. Byaruhanga, learned counsel for the plaintiff was not applying to amend.

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He was applying for adjournment to enable him study the case of his client and, if found necessary, to amend the plaint. My understanding is that he will put in his application to amend when he has been given an adjournment to enable him put in the amendment, if after studying the case he finds it necessary to amend.

I have considered the application to adjourn and because he had no time between his engagement and the hearing fixed for the 30th of July 1998, to study the case, I think it is only just to grant him an adjournment which I do hereby grant. In any case, this was one of such applications which could not be decided extempor because of the extensive submissions. Because I had of necessity to adjourn to consider the submissions for and against the application, the adjournment became a must. In view of that, I take it that Counsel Byaruhanga has had, in the interim, time to study his client's case. I therefore give him an adjournment of only 8 days. Hearing is adjourned to 13th August, 1998. The application to amend will thereafter be considered on merit. Mr. Byaruhanga conceded costs to be paid by his client and I order that the plaintiff pays the costs of the adjournment in any event.

J. H. NTABGOBA

PRINCIPAL JUDGE 04/08/98

Mr. Paul Byaruhanga for plaintiff/applicant Mr. Paul Sebalu for the defendant/respondent Ms. Jolly Kauma, Court Clerk All present in chambers.

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J. H. NTABGOBA PRINCIPAL JUDGE $4/8/98$

Mr. Sebalu:- I apply for permission to appeal. I would apply for time to make submissions if Mr. Byaruhanga is not opposed.

Mr. Byaruhanga:-

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> We have no objection to him coming to present his reasons by adjournment.

Hearing is adjourned to $13/8/98$ . $Court: -$

J. H. NTABGOBA PRINCIPAL JUDGE 

THE REPUBLIC OF UGANDA. IN THE HIGH COURT OF UGANDA AT KAMPALA

CIVIL SUIT NO. 93 OF 1997

UGANDA POSTS & TELECOMMUNICATIONS CORP. :::::::::::: PLAINTIFF

$-$ versus $-$

$\scriptstyle:\;:\;:\;:\;:\;:\;:\;:\;:\;:\;:\;:\;:\;:\;:\;:\;:\;:\;:\;$ DEFENDANT INTERNATIONAL TELEVISION ::::::: BEFORE: - HON. THE PRINCIPAL JUDGE - MR. JUSTICE J. H. NTABGOBA

## RULING

This is an application by Counsel for the defendants/applicants that the suit pending in this Court be dismissed for the reasons I will give in the background to the oral application.

The background facts are that the International Television Network (herein to be referred to as the first respondent) signed an Agreement with the Uganda Posts and Telecommunications corporation (to be referred herein as the plaintiff). The Agreement termed "AGREEMENT FOR UPLINK SATELLITE SERVICES" provided that the plaintiff would facilitate the first defendant to link up with the International Satellite (INTELSAT) for purposes of accessing Satellite Services in respect of which the defendant had received a licence from the Ministry of Information "for provision of Television Services" in Uganda using the INTELSAT linkup under a (15) year lease.

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It is said that after obtaining the licence from the Ministry of Information the first defendant, on the advice of the Ministry of Works and Telecomminications, applied for the access to INTELSAT facilities to the plaintiff. It is not in dispute that the plaintiff is the sole provider in Uganda of Telecommunications Services. In the preemble of the Agreement, it is stated that, in addition, the plaintiff had express permission of the Government of the Republic of Uganda to sign a Protocal with the INTELSAT and that the plaintiff had signed such Protocal "to represent the Government in all dealings with the INTELSAT".

In consideration of the plaintiff accessing the first defendant to the INTELSAT telecommunications facilities, the first defendant would pay an agreed sum of money in an agreed mode. The contract is that the facilities to be accessed to the defendant would be over the area provided in the licence. Actually, according to the pleadings, the defendant was to be facilitated with "Capacity on the space segment covering Uganda, East and Central Africa known as 'footprint IS 702 at 359<sup>°</sup> E'; but according to paragraph $4(b)iii$ of the Amended W. S. D. only Uganda at footprint IS 707 at 359°E was accessed. Mr. Paulo Sebalu, learned Counsel for the defendants had requested to have a view of the footprint as weel as the Protocal which the plaintiff alleged it had signed with INTELSAT,

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as well as evidence that the plaintiff had authorised the plaintiff to deal on behalf of the Government in all dealings with the INTELSAT. It is said that Mr. Sebalu was able to view the footprints and as for the authority, it is to be gathered from the two letters written by Minister Nasasira of the Ministry of Works, Housing and Communications, addressed to the Attorney General on 28.7.98 and to the Chief Registrar on 19.2.98. In brief, Mr. Nasasira said to the Chief Registrar:-

> " This is to confirm that Uganda Posts and Telecommunications Corporation is the authorised signatory to the INTELSAT Agreement in Uganda and has been attending all meetings of signatories and meets other obligations on behalf of the Country.

" The second defendant approached both Government and INTELSAT and was advised to route his application through UPTC which he did and their application was granted and services provided by Intelsat. As such it is very surprising if the defendants are denying the authority of UPTC in processing their application".

Admittedly Minister Nasasira's letters were not produced or tendered under cross-examination on oath, but they are official communications, and any doubt as to their truth would lead to him being summoned to Court to be cross-examined. It is important to point out that the second defendant is Thomas Kato,

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the Managing Director of the first defendant who therefore signed the Agreement on behalf of the first defendant after also making the applications for the facilities on behalf of the first defendant.

What Mr. Sebalu still wants is the Protocel recited in the Agreement and averred in the plaint to the effect that the plaintiff signed it with INTELSAT. When, on Mr. Sebalu's application, this Court ordered the plaintiff to produce the Protocol, Counsel for the plaintiff kept on applying for adjournments allegedly that he was trying to contact the INTELSAT for a copy of the Protocel. After several such applications for adjournment, I gave what I ordered would be a final adjourn-I did not say that failure to bring copy of the $\angle$ protocol ment. would lead to dismissal of the suit. What I had in mind was that at the next hearing I would proceed without the Protocol as if the same was non-existent.

On the next hearing a new lawyer, not belonging to the firm that had hitherto represented the plaintiff, appeared Mr. Paul Byaruhanga, learned the new Counsel for the plaintiff, applied for an adjournment for the reasons that he had been just engaged, that he had not interviewed his client, the plaintiff; that he had not studied the case file and that, after studying it he might contemplate making amendments to the plaint. It was at that juncture that Mr. Sebalu learned Counsel for the defendants, made an oral application that the suit be dismissed.

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I overruled him and granted the adjournment ordering the plaintiff to compensate the defendants with costs. Tt is against this ruling that Mr. Sebalu, there and then, applied for leave to appeal against my ruling. He then orally applied for adjournment to a date when he would address the Court on the grounds on which he based his application to appeal. I granted him the adjournment. When Court resumed hearing after the adjournment, Counsel advanced two grounds I will set them down hereupon which he wished to appeal. after. After hearing both Counsel, I adjourned the case for this ruling. But the grounds advanced by Mr. Sebalu are two as follows:-

- (1) "That for no good reason the learned Judge refused to allow my preliminary objection". - (2) That for no good reasons the ruling, instead of confining itself to the narrow issues of the preliminary objection, it went all over the case including matters over which we had not called evidence; and which were not intended to be part of the preliminary objection".

One needs to look again at the preliminary objections raised by Mr. Sebalu and the ruling I made dismissing them.

Mr. Sebalu objected to Mr. Byaruhanga's application for adjournment for the reasons I have already recorded. Apparently, Mr. Sebalu could not see how, after I had given a final adjournment, I could grant a further adjournment.

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This is why he said:-

" I object to the application $\sqrt{f}$ or adjournment7 when this Court gave its order on 30.6.98 for a final adjournment, it was to enable the plaintiff to produce a document they claimed they had executed, and that had been about the third time to adjourn the hearing to enable the plaintiff to produce the document".

In his submission in support of the application for adjournment, Mr. Byaruhanga had intimated that he was talking into the possibilities of amending the plaint so as to join the Attorney General as Co-plaintiff.

Mr. Sebalu reacted to this by saying among others:-

" The document is the Protocol referred to in the plaint. It was not a question of requiring the Attorney General to be joined in order to produce the document alleged to have been conducted between the plaintiff and the defendant. If, as is said in the preamble to the agreement, the government had expressly allowed UPTC to represent it, where is that express permission? You do not have to join the Attorney General if you were expressly permitted by the Government to represent it. Why do you have to bring in a person who gave you express permission $\angle$ to represent him/? It is the authority we want. If the plaintiff is trying to cover up the permission, it is not permissible. My submission is that such document (i.e. the Protocol) does not exist. Three times we have had to adjourn to get that document, and to-day they have not even alluded to it. When you made the order that that was the last adjournment it was not against counsel.

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It was against UPTC, and therefore, even the new advocate should have produced the document. I do not see why a new Counsel should have been appointed. You fixed this hearing during the Court vacation because it was the view of this Court that the case had been dilatorily handled. The Court's valuable time is also wasted. I submit that the grounds given by learned friend are just sufficient to allow him because he is new to the case but not for you to set aside your order. I object very strongly to this application for adjournment. But since costs have been conceded, I renew my application that the costs should be paid before the next hearing".

In the first place, even though I granted an order that the hearing be fixed, I was not aware that the plaintiff was going to drop its Counsel and engage a new one who would certainly require time to study the case, consult the client and even make any amendment to the plaint. I cannot compel the plaintiff to stick to its old Counsel. I cannot prevent him from making any amendment, if such amendment will assist the plaintiff or the Court to effectively and finally dispose of the matter in controversy in the suit between the parties. Rule 18 of order 6 of the Civil Procedure Rules clearly provides that a party is entitled to make any amendments to the proceedings at any stage of the proceedings. The plaintiff would effectively propose meaningful amendments only with professional advice.

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If the plaintiff has decided to drop its Counsel and engage another one, Court cannot deny it that right of legal representation which is a constitutional right. After all, the award of adjournment is a discretionary decision and the Court would be doing injustice if it refused to grant an adjournment for good cause. As for the anticipated amendments, the plaintiff would first make a chamber summons application pursuant to order 6 rules 18 and 30 of the Civil Procedure Rules. Counsel for the defendant would be given opportunity to challenge the application and then Court would make a decision whether or not to allow the application. It would therefore be premature for Counsel for the defendant to begin anticipating the grounds upon which an application for amendment would be based. In my Ruling in which I agreed with Mr. Sebalu that it would be unnecessary to join the Attorney General as Co-plaintiff, I did that by looking at the plaint and assessing its short comings as I am entitled to do. Section 103 of the Civil Procedure Act gives me that wide discretion when it provides that:-

> " The Court may, at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding".

That this provision gives wide discretion to the Courts was underscored by the Court of Appeal for Eastern Africa in the case of LAKYANI -vs- BHEJANI (1950) 17 E. AC. A. 29 when it held that "appeals against the exercise of its discretion by the Superior Court will only be entertained where they are based on

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some embarrassment or other injustice of substance". I think that I would be acting within the purview of the general power of the Courts to amend pleadings under S. 103 of the Civil Procedure Act which I have already cited. I am, indeed, entitled to order, as I did, that upon the nature of the application and the case as a whole, the plaintiff was guilty of imprecision. I did employ my inherent powers and the discretion widely given by S.103 of the Act and Rule 17 of order 6 of the Civil Procedure Rules. I do think that when it is clear there are issues in a case for determination the parties should not be denied their right to be heard on those issue. In this regard, I derive great encouragement from the words of Sir Charles Newbold when he was the President of the Court of Appeal in the case of Manoji -vs- Arusha General Store 19707E. A. 137 at p. 138, that:-

> " It is however, in my view, completely immaterial whether the procedure was precisely what I should have been. We have repeatedly said that the rules of procedure are designed to give effect to the rights of the parties and that once the parties are brought before the Courts in such way that no possible injustice is caused to either, then a mere irregularity in relation to the Rules of Procedure would not result in vitiation of the proceedings------ Non-compliance with the rules of procedure of the Court which are directory and not mandatory rules, would not normally result in the proceedings being vitiated if, in fact, no injustice has been done to the parties".

> > $.10$

$= 9 =$

In our present case, the defendant, by amending the W. S. D. has controverted all that is averred in the plaint. This includes the plaintiff's averments that it obtained authority from the Government to deal with INTELSAT and that it signed a Protocol with the INTELSAT pursuant to the said Government's permission. The defendant has not only challenged the validity of the Agreement on the ground that it was based on misrepresentation. In the Amended W. S. D. the defendants went as far as indicating the particulars of misrepresentation. A look at paragraph 4 of the amended W. S. D. will show the detailed particulars of the challenges to the Agreement on which the plaintiff, in its plaint, bases its claim. I cite paragraphs 4 and 5 of the W. S. D.:-

## Paragraph $4 :=$

" The defendants shall contend that

- (a) The defendants wrote Annexture 'A' to the Amended plaint under a misrepresentation by the plaintiff that the plaintiff had authority to deal with INTELSAT on behalf of the Government of Uganda when infact it did not have such authority. - (b) The Agreement Annexture 'B' is void and unenforceable against the defendants on the following grounds:- - (i) that the plaintiff had no authority to sue the defendants as is alleged in the plaint, and a preliminary objection will be raised at the hearing to this effect.

$...11$

$= 10$

- it was not made under seal as is provided in $(ii)$ the first defendant's Articles of Association. - (iii) Although the defendants applied in Annexture $A'$ for capacity on the space segment covering Uganda, Eastern and Central Africa (Foot-print IS 702 at $359$ <sup>O</sup>E) the plaintiff without specifically notifying the defendants and obtaining their consent, varied the service area to Uganda only (Footprint IS 707 at $359^{\circ}$ E). On discovering the mistake, the defendants wrote a letter of protest to the plaintiff on 25th June 1996 which will be produced at the hearing".

## Paragraph $5:-$

" in the alternative but withonty prejudice to the averments in paragraph 4 above the defendants shall contend that although the plaintiff agreed to uplink the Defendant with INTELSAT, it has never done so and therefore there was total lack of failure of consideration on the part of the plaintiff and payments claimed --- would have been gratuitous".

The amended plaint was filed in this Court on 5th March, 1997. The W. S. D. was filed on 11th March, 1997 which was subsequent to the filing of the amended plaint. According to Mr. Sebalu, he filed the amended W. S. D. on 1st September 1997 after viewing the footprints. In that amended W. S. D. he contraverted the plaintiff's capacity to sue his client. The challenge was based on the plaintiff's failure to produce the authority.

..12

$\frac{11}{1}$ -

$Mr.$ Ogalo, then representing the plaintiff to look for and produce the authority in Court. In the event, Mr. Ogalo was dropped by the plaintiff who in his place Mr. Byaruhanga was engaged. In those circumstances, what is Mr. Sebalu objecting to? Is it to the fact that Mr. Byaruhanga wishes to apply to amend and therefore he seeks adjournment? Is it that I have refused to strike out the amended plaint? But despite my order that the hearing would continue at the next hearing date, that cannot deny the plaintiff to amend the plaint at any time of the proceeding (see order 6 rule 18). Besides and also, it would be unjust to compel Mr. Byaruhanga to proceed with the conduct of the case he has not studied and whose owner he has not had opportunity to interview. To force him to conduct his client's case in such circumstances would amount to gross injustice, in the same way it would be if I had to pin him to base the conduct of his $% \left\vert \mathbf{r}\right\vert$ case on the amended plaint which he would very much like to amend. The only just decision of the case was to allow the adjournment, compensate the defendant with the costs and wait for the application to amend under order 6 rule 18 of the Civil Procedure Rules. It is at the hearing of the application that the defendants could apply under order 6 rule 17 of the Civil Procedure Rules. This would have to be done after the intended amendments have been admitted, if admitted, since it was not done to the present amended plaint. But it would have to be done by an application by chamber summons pursuant to order 6 rule 30 of the Civil Procedure Rules.

$...13$

$-12$ -

Better still, Mr. Sebalu's application should have come under order 10 rules 21 and 24 which deal with noncompliance with an order for discovery. But again this could not have been brought orally. It must be brought under order 10 rule 24 which provides that applications under order 10 shall be by summons in chambers. Rule 21 of order 10 of the Rules provides:-

$= 13$ .

" Where any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents he shall, if a plaintiff, be liable to have his suit dismissed for want of prosecution----- and the party interrogating or seeking discovery or inspection may apply to the Court for an order to that effect, and an order may be made accordingly".

Mr. Sebalu's oral application for striking out the suit for failure to avail a document alleged in the plaint or for failure to produce information was misconceived as the same should have been brought on a chamber summons application pursuant to order 10 rules 21 and 24 of the Civil Procedure Rules. The same oral application to strike out the plaint that was amended was equally misconceived as the same should have been brought under order 6 rule 17 of the procedure Rules. If wished to apply to strike out the suit on the basis of the intended amendment, then he should wait and proceed under rule 21 of the order. But application under either rule 17 or rule 21 of Rule 6 of the Civil Procedures would have to be by Chamber Summons pursuant to rule 30 of order 6 of the Rules.

$.014$


In the circumstances of this case I dismiss the application from leave to appeal against my Order granting adjournment to the plaintiff. The defendants are ordered to meet the Costs of this dismissal.

J. H. NTABGOBA PRINCIPAL JUDGE $25/08/98$

$25.08.98$ Mi Wekesa of M/s Sebalu & Lule Advocates Mr. Bjandomog Paul Present CouRT:-As directed by the Hon. Principal Judge Mr. Justice J. 4. Ntabgoba, the ruling is pronounced under $O. 18$ r. 2 (3) C. P. R. MA $\Delta$ $1e$ $25.08.98$