Volcano Limited v Board of Governors Old Kampala Secondary School (Civil Suit No. 436 of 2018) [2022] UGHCLD 119 (6 June 2022)

Full Case Text

### THE REPI'BLIC OF UGANDA

#### IN THE HIGH COURT OF UGANDA AT XAMPALA

### (LAND DIVISION)

# crvll surT No. 436 ()F 2018

PLAINTIFF VOLCANO LIMITED....

#### VERSUS

# 10 BOARD OF GOVERNORS OLD IIAMPAIA SECONDARY SCHOOL............ DEFEI{DANT

#### RI'LING:

### Before: Iadu .htstlce Alexand.rd. Nkonqe Ruodd.ad.

### IJttl,oCla-t! .o!:\_

'Ihc plaintiff compal],y Volcano Ltd filcd this suit initially in thc Commcrcial Division: CIUII Sutt No.424 of

15 2OI8, seeking alnong others, a declaration that thc defendant brcachcd the tenancy agreement between them; and an order for special damages of Vgx 252,693,500/=; Ecncral damagcs for breach oI tenancy agreement; and interest at a commercial rate of 2570.

On 8rh June, 20 18, the matter was referred to thc [,and division and a file opened undcr C{ull Su{t I\lo. 436 oJ 2Ola. Ihe defendant filcd a WSD and countcrclaim on 6th July, 2018. The rcjoinder was made on 31i July, 2018.

At the ncxt hearing dated 17rh January, 2O2O, court dirccted that the JSM and Joint trial bundle be filed on grh Mar"ch, 2020. The rccord indicates that on 241h Fcbruary, 2O2O, lhe JSM was filed in court. The plaintiff trial bundle was filed on gth March, 2020 and thc dcfendant's triarl bundle on 5th March, 2020.

25 On 17ih lrebruaJy, 2022 in thc prcsencc of both counsel, couft made furthcr directions for the parties to file to fik witness statements by I May, 2022 ar.d, today's date was appointed as datc for the full trial.

The plaintiff company and its counsel howevcr not only failed to show up or offer any explaration as to why did not turn up in court, they also did not comply with thc order to lile witness statements. The failure to proceed today is attributed to the plaintiffs failure Lo comply with the directives given by court and turn up in court for today's hearing.

# 30 Ord.er 9 rule 22 of the CPR prouldes:

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Where the deJeadant appears and. the plalntl,! does ^ot d.pped.r tDhen the sult is called on Jot he.rrlrtg, thc court shall ,nd.ke a.^ ordeLthdt the sult be dlsmlssed unless the deJend.dnt qdr,,:lts the cl.tl,?? ot pdr-t ol tt ln @hlch co,se the court shall pass d. decrec agd.lnst the dcJenda.^t upo^ such cdmlsslon,,,..,

5 The defendant in this case indeed admitted that an agrcement had bccn reached betwecn thc two parties, but denied liability of the amount spcnt /incurred on rcnovation and construction on the suit land as claimed by the plaintiff company.

They admitted in thc counterclaim that thc tenancy was exccuted but that it followed invited bids for hiring property comprised io LRv 746 follo 72 plot 79 l,lqmlrenbe Road but that when they were awatded the bill the plaintiffs acted fraudulently when they submitted invalid Tax Clcarancc Ccrtificatc.

Furthermore, that the works they carried out werc in contravcntion with thc laws and orders of KCCA. The defendants also admitted that they refunded to thc plaintiffa sur']. of Ugx.24o,ooo,ooo/=.

Thc above otdcr 9 tlr'le 22 of the CPR thereforc as citcd applies to the extent that the plaintiff failed to appear when the suit was next callcd for hearing and that thc admission for thc rcfund has already been executed. The rest of the issues raiscd by the defcndant arc to bc addrcsscd undcr the counterclaim.

In light of the abovc findings

- 7) The mdl^ sult ilo. 435 oj 2078 ts theretore dlsmlsscd tor want o! ptosecutlon. The court t tlll accotdlnglg ptoceed utlth the cou ter clalm. - 2) All toltness staterne^ts to be serrEd and fTkd l^ court bg 14.h .rulS, 2022. - 3) In the etE t houetEr thdt the corl ter deje^d.ont does not turn up 4rltft lts ra,ltncss€s dnd upon sulficle^t ptooJ oJ ser, lce of the @ltness statements to the counter' deJendant, thls court shall ,rrake a^ ord.er to proceed expatte, ln respect oI mdtters rdlsed. l^ the cou^tercldlm. - 4) I^ the etEnt of the cou terclalrna^t's fallure to htrn up uritrr its ur{tnesses o^ the d.ag fl-xed Jor hearl,!.g, the cou^terclal.n shall also be dlsm{ssed. - 30

S) Hearlng d.ate Jot the cou^tercld.lm: |Gh Norcmber,2022 dt 9.3O dt ,

6,, Costs o.f the dlsmlssed sult shdll d.tDd.lt the outcorne of the cou^tetclal.^.

35 Alexo.ndrd &dge

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U 6rh Jttne, 2022