THE REPUBLIC OF UGANDA,
IN THE HIGH COURT OF UGANDA AT KAMPALA
(COMMERCIAL DIVISION)
MISCELLANEOUS APPLICATION NO 688 OF 2014
(ARISING FROM HCCS NO 508 OF 2003)
ESERO KASULE}.................................................................APPLICANT/PLAINTIFF
VERSUS
ATTORNEY GENERAL}.................................................RESPONDENT/DEFENDANT
BEFORE HON. MR. JUSTICE CHRISTOPHER MADRAMA IZAMA
RULING
The Applicant commenced this application under section 34 of the Civil Procedure Act, section 27 of the Judicature Act and Order 52 rules 1 and 2 of the Civil Procedure Rules for orders that the dispute as to the method of computation of interest accruing from the judgment in the main suit be referred to a reputable chartered accountant or such other expert or organisation as the court shall deem fit and for costs of the application be provided for.
The grounds of the application are that the Applicant is a decree holder in HCCS 508 of 2003. Secondly a substantial amount of money has been paid by the judgment debtor to the Applicant. Thirdly it is averred that there is controversy with regard to the mode of computation of interest accruing. Fourthly it is in the interest of justice that the application is granted.
The application is supported by the affidavit of the Applicant Mr Esero Kasule who is also the judgment creditor. He deposes that he is the decree holder in the main suit and the Respondent paid substantial amounts of the judgment debt although in bits and pieces and there is still an outstanding amount due to him. A controversy arose between the Respondent and the Applicant on the mode of applying the instalments paid as to whether towards settlement of interest first or towards reduction of the principal amount. Based on advise of his Counsel and also confirmed by Mr Bernard Mukooli and Company which is a reputable firm of accountants practicing in Uganda, the common accountancy commercial principles, common sense, justice and fair play as well as equity is that where a debtor pays money in bits and pieces when the interest has already started accruing, the instalments paid are naturally applied towards the settlement of the accrued interest until all the interest is fully satisfied.
In cases where payment is spread over a long period of time, the essence of charging interest is compensatory in nature. It compensates the creditor for the loss in the value of the money and opportunities denied by the debtor to put money to immediate use. Grave injustice would be occasioned if the principal amount were cleared first, leaving a big outstanding amount of accrued interest which will remain constant and not fully paid for many years when the value of the money is depreciating.
The Applicant’s Counsel made computations based on the above principle and established that by 17 April 2014 the Applicant was owed Uganda shillings 307,493,160/= according to the report annexure "A". On the other hand a judgment debtor by letter dated 27th of June 2011 forwarded a letter of the senior accountant in the Attorney General’s Chambers giving the basis and method used by him for calculating and paying accruing interest. The report acknowledges that the mode adopted by the Applicant’s accountants is based on accepted universal commercial customs for computing interest although he applied a Conservative and frugal interest with the result that the recommended balance due to the Applicant by the 25th of May 2011 is a miserly fee of Uganda Shillings 32,356,901/=. As a result the Respondent and the Applicant are at variance and their figures are irreconcilable. It has consequently become necessary to refer the controversy to a reputable chartered accountant or other professional body for resolution. Lastly that it is in the interest of justice for the application to be granted.
The Attorney General was served on 11 September 2014 and filed an affidavit in reply on 8 October 2014. Counsel Oburu Odoi Jimmy, a Principal State Attorney in the Respondents Chambers deposes that the Respondent was advised by the office of the Accountant General that the Applicant’s proposed computation under which payments are first applied to interest accrued and payment on the principal starts after all interest accrued has been paid, is the custom used by commercial enterprises to maximise profits but not a prescribed accounting standard or regulation. Secondly the Respondent was advised to apply the standard practice employed by government where payments are first applied to the principal and prevents escalation of interest accrued. No grave injustice would be suffered by the Applicant if the principal amount were deemed to have been cleared first as he would still be paid interest for the period when the principal was unpaid.
It is not true that the Accountant General ever acknowledged or accepted the Applicant’s proposed method as alleged and the position of the Accountant General was that the principal was fully paid. After the filing of the suit, the Applicant and his Counsel made various representations to court and the Respondent that the paid instalments were made and received as further payment of the principal compensation claim. The Applicant acknowledged in court the payment of Uganda shillings 51,650,000/= made in October 2003 was the principal compensation sum and the outstanding compensation balance was Uganda shillings 38,230,000/=. In April 2005, the Applicant’s Counsel wrote to the Respondent requesting him to immediately pay the undisputed sum of about Uganda shillings 38,000,000/= being the balance of the principal amount. In June 2005 the Applicant was paid Uganda shillings 38,000,000/= and the voucher clearly stipulated that it was payment of the principal amount and the balance thereof was Uganda shillings 230,000/=. The position of both parties as at April and June 2005 was that payment of Uganda shillings 38,000,000/= made was the principal compensation sum and not interest.
Payments made to the Applicant clearly documented that they were applied towards the principal and thereafter to the accrued interest. The Applicant’s conduct and the representation raises the legal doctrine of estoppels against a contrary assertion. Furthermore the dispute can only be properly adjudicated by this court. It is unnecessary to refer the dispute to a private accountant for resolution as the parties are at liberty to call expert witnesses and produce supporting evidence and authorities on accounting standards. As a legal representative of the government, the Respondent is bound by the advice of the Accountant General and it is not in the public interest for it to submit the said advice for review by a private accountant or organisation so as to determine the computation of the debt owed by the government. In the event that the proposed private accountant or organisation were to make a finding contrary to the position of the Accountant General, the Respondent would be duty-bound to dispute it before the court. In the circumstances it was best to have the dispute resolved by the court and the court should consider the conflicting computations in light of the circumstances and relevant evidence, authorities and law and make an interpretation of the court order. It is not in the interest of justice to grant the application.
The Applicant further filed an affidavit in rejoinder to that of the Respondent’s Counsel. He asserts that the doctrine of estoppels does not apply to this case for two main reasons. Firstly the letter attached to the Respondent’s affidavit in reply stated in clear and unambiguous terms that it was requesting the payment of the undisputed amount of Uganda shillings 38,000,000/= without prejudice to application for a review of the judgment and the letter is dated 18th of April 2005. Secondly the order for review dated 21st of February 2008 superseded the original judgment of the court and all acts, deeds et cetera based on it. The Respondent has since the order for review was made departed from the position reflected by annexure "B" to the affidavit in reply. For instance following a meeting the Applicant had with Counsel for the Respondent and the Senior Accountant of the Minister of Justice and the Attorney General on 26 November 2008, the Senior Account gave a copy of his computation indicating that at that time, the interest due to the Applicant computed following his conservative method stood at Uganda shillings 119,290,523/=, which figures the Applicant did not accept because he considered it to be too low.
The Applicant is represented by Counsel Jehoash Sendege and also filed written submissions in support of the application while the Respondent is represented by Patricia Mutesi; Principal State Attorney who also addressed the court in written submissions.
The first issue is whether time should be enlarged for the Respondent’s submissions which had been filed out of time by four days to be admitted out of time.
The Respondents Counsel did not adhere to the timelines given by the court for the filing of written submissions. According to the timelines, the Applicant was to file and serve his written submissions by 29 October 2014 while the Attorney General would reply by filing and serving a reply by 6 November 2014. The parties were restricted to a maximum of five pages and any rejoinder to be 2 ½ pages. Any rejoinder was to be filed by 10 November 2014 and ruling was fixed for 26 November 2014.
The record shows the Applicant’s written submissions were filed in time on 29 October 2014. However the Attorney General did not file a reply until the 10 November 2014 and sought an extension of time by letter to the registrar dated 10th of November 2014 for extension of time to file submissions by 10th of November 2014. In another letter dated 11 November 2014 the Applicant’s Counsel protested the application for extension of time by letter and urged the registrar to return the correspondence and its attachment to the Solicitor General. That notwithstanding on 12 November 2014 the Applicant filed a rejoinder to the Attorney Generals reply. In the rejoinder the Applicant’s Counsel prays that on the ground that the consent was without the leave of court, it should be rejected and struck out by the court. Secondly Counsel submitted that the additional affidavit filed by the Respondent was without the leave of the court and outside the prescribed time without the consent of the opposite party. Consequently the additional affidavits should be rejected or struck out.
I agree that the written submissions had to comply with the timelines set by the court which timelines are guided by rule 6 of the Constitution (Commercial Court) (Practice) Directions. Rule 6 (4) provides that the court would set realistic time limits for hearing and as time limits would be expected to be adhered to and extension will only be granted in special circumstances. The court has power to refuse to extend any period of compliance with an order of the court or to dismiss the action or counterclaim in whole or in part or to award costs as the judge thinks fit. It is a requirement under the rules to seek leave of court. The requirement to obtain the leave of the court where timelines have been set by the court is also implied in the rule 6 of Order 51 of the Civil Procedure Rules which provides that where a limited time has been fixed for doing any act or taking any proceedings under the rules or by order of the court, the court shall have power to enlarge the time upon such terms, if any, as the justice of the case may require. Unless the court otherwise orders, the costs of the application are borne by the Applicant. The issue before the court is not that the leave of the court has not been sought but that the Respondent purported to file written submissions outside the time allocated by the court and at the same time applied by letter addressed to the registrar of the court to be allowed to file the written submissions.
This is not a peculiar act and several letters have been written for extension of time to file submissions out of time. However, I have not come across a situation where the application by letter has been challenged with a prayer that the offending matter be struck off the record. The Applicant’s Counsel exercised the right of rejoinder by applying to have the submissions and an additional affidavit in reply struck off the record.
The court has discretionary powers under rule 6 of Order 51 to enlarge time. However the application has to be made to the judicial officer presiding over the case and not to the registrar. Secondly the application has to be made either orally at the time of the hearing or in the manner prescribed by the rules namely by Notice of Motion under Order 52 rule 1 of the Civil Procedure Rules. There is no application to the presiding judge for enlargement of time. Secondly the application that is addressed to the honourable registrar is in writing. The situation is that the court had directed the parties to address it in written submissions which were agreed by Counsel. Consequently an oral application and the time of the hearing could not have been made. I have carefully considered this situation and because an oral application for extension of time and the time of hearing has not been excluded by the rules and has often been entertained when the parties are in court, an Applicant in some situations for extension of time to put in written submissions need not be restricted to a formal application. However the mode of addressing the court was in the written submissions and prayers for extension of time could have been incorporated in the Respondent’s written submissions and not by letter. The Applicant would have had a chance in rejoinder to contest the application for enlargement of time to file written submissions in time. Obviously the only problem with this approach is the requirement to provide the grounds which may be in evidence for failure to comply with the timelines of the court. Very often a statement from the bar as to why Counsel was an able to file written submissions or to make submissions on time can be accepted because the duty is on Counsel to file submissions and not on the witnesses.
As far as the additional affidavit is concerned, there are submissions of the Respondent in the written submissions in reply to the Applicant’s prayers to have the affidavit struck out and that can be considered on the merits if the written submissions of the Attorney General are admitted.
Applications to court by letter ought to be discouraged. In this matter however, the prayer of the Respondent ought to have been included in the written submissions in reply and the letter notifying the court that an oral or written application has been included for extension of time which should be considered on the merits in the written submissions. In substance however, if oral submissions are acceptable for extension of time to enable Counsel file written submissions or address the court orally outside the time prescribed, I do not see much prejudice if that privilege is extended written submissions which is intended to do the same thing as in oral submissions. My remarks however should be restricted to written submissions and not to pleadings. The substance of the letter is the same as written submissions which had been permitted by the court. The only difference between the two is that the letter is addressed on the letterhead of the Respondent and is in a different format from written submissions. Nonetheless both the letter seeking leave of the court and the written submissions were filed on the same day. The only issue now is whether I should admit the written submissions in the circumstances of the case as they had been filed outside time by four days. The Respondent was required to file submissions by 6 November 2014 but filed on 10 November 2014. Inasmuch as applications by letter should be discouraged, I have had opportunity to read the letter.
Before I conclude this matter, by letter dated 11 November 2014 the Applicant’s Counsel wrote to the registrar of the High Court (Commercial Division) addressing his worship and objecting to the letter of the Attorney General together with the attachments which were the submissions which letter had been retained the previous day on 11 November 2014 filing the submissions out of time and seeking the leave of the registrar to forward the request to the judge for extension of time to file submissions by 10th of November 2014. In that letter the Applicant's lawyer requested the registrar to return the correspondence to the Solicitor General together with the attachments. The comments of the registrar dated 14th of November 2014 in which he states that he has never seen the letter in question. When all has been said about the matter, and actions taken, the file was forwarded to me with the written application of the Solicitor General which remains on the file. In other words the honourable registrar never complied or accepted the request of the Applicant's lawyer not to forward the correspondence of the Solicitor General together with the written submissions to the presiding judge but return them to the Solicitor General. In other words I have had the opportunity to read the correspondence of the Solicitor General and I cannot ignore the contents thereof.
In the letter dated 10th of November 2014 the Solicitor General, in the person of Patricia Mutesi who is also the attorney who appeared at the hearing of the application makes reference to the timelines for the Defendant to file a reply by 6 November 2014. However she writes that the Attorney General was summoned for hearing of application number 20/2014 reference number 06/14 at the East African Court of Justice for the 5th and 6th of November 2014 and the undersigned Counsel who had personal conduct of the cases travelled to and from the East African Court in Arusha Tanzania on the 4th and 7th of November 2014 and as such was unable to file submissions by 6 November 2014.
I have considered the practice at the commercial court and in the High Court generally where any notice of hearing by the Court of Appeal or the Supreme Court can normally be tendered in court by a Counsel holding brief of the Counsel supposed to have conduct of the hearing and time has been extended because the appellate courts take precedence over the High Court. In such cases an oral application for extension of time to enable the Counsel attend to the appellate court and conduct the proceedings on another day has often been granted. Each case is considered on its merits. What needs to be highlighted is that such oral applications are made when there is an appearance in court. In this case appearances had been dispensed with and Counsels were required to address the court in written submissions. It may be contended that in such a case, a formal application would be in order. However, a written application cannot be excluded because written submissions were ordered and particular dates had been given to file submissions and no date given for appearance in court. Consequently in the peculiar circumstances, I am persuaded to consider the written application of the Attorney General albeit embodied in a letter which ought to be discouraged. The Attorney General's application to allow the written submissions four days out of time is allowed with costs as prescribed by Order 51 rules 6 of the Civil Procedure Rules and to meet the ends of justice under section 98 of the Civil Procedure Act. The Applicant has not been greatly prejudiced by a delay of four days and the Attorney General's Counsel has demonstrated a good cause for failure to file the written submissions in time. Lastly ruling had been fixed for 26 November 2014 and the Applicant had sufficient time to reply or file a rejoinder to the submissions.
In the premises I will consider the Applicant’s application and will rely on the written submissions of both Counsel filed on record.
Having admitted the written submissions of the Attorney General, the second preliminary issue to be considered is the additional affidavit of Principal State Attorney Oburu Odoi Jimmy filed on court record on 15 October 2014. The Respondent’s first affidavit in reply was filed on 8 October 2014.
The Applicant’s Counsel submitted that following the court specific order for filing pleadings, the Respondent filed an affidavit in reply on 8 October 2014 in opposition to the application. The Applicant filed an affidavit in rejoinder dated 15th of October 2014 and pleadings were closed. Surprisingly, the Respondent, without first having sought or received the leave of the court served onto the Applicant’s Counsel a further affidavit in reply on 17 October 2014 in which he introduced new facts. The procedure followed was not only highly irregular but also absurd. The absurdity is that the Applicant cannot respond to such an affidavit after pleadings had been closed. Counsel relies on Court of Appeal Civil Appeal number 9 of 2009 His Worship Aggrey Bwire versus Attorney General and another where it was held that new matters cannot be raised after the closure of pleadings except with the leave of court. Furthermore litigation must come to an end. In those circumstances the Applicant’s Counsel submits that the further affidavit in reply of the Respondent filed after the closure of pleadings should be completely disregarded by this court.
In reply the Respondent’s Counsel maintains that the affidavit in rejoinder and the further affidavit in reply were filed on the same day namely on 15 October 2014. However whereas the Applicant filed the affidavit in rejoinder on 15 October 2014, it did not serve the Respondent’s Counsel with the affidavit until 17 October 2014. Due to the date of service, when the Respondent filed its further affidavit on 15 October 2014, he was not aware that the Applicant had filed a rejoinder on the same day. The argument that the affidavits were filed after pleadings were closed is not tenable because the Respondent had already filed its further affidavit two days before it was served with the affidavit in rejoinder.
Furthermore both parties served their respective affidavits on the opposite party on 17 October 2014 and the Respondent only became aware of the affidavit in rejoinder on that date and after it had served its further affidavit on the Applicant. Lastly the evidence presented in the Respondent’s further affidavit is very important to enable the court properly resolve the application and the objection to the affidavit is a technicality which should not override substantive justice under article 126 (2) (e) of the Constitution of the Republic of Uganda.
I have carefully considered the facts and arguments of Counsel. The relevant record of the court is that on 8 October 2014. Patricia Mutesi PSA informed the court that they had just served the affidavit in reply that morning. They had been served with the application on 11 September 2014 but because she was involved in an accident and had been on sick leave, she did not file a reply in time. Counsel informed the court that they would address the court after the Applicant had put in an affidavit in rejoinder. Indeed the record of court shows that the Respondent had filed the Respondent’s affidavit in reply on 8 October 2014, the same day as the proceedings of the court. What must be emphasised is that the court directed that the Applicant would file an affidavit in rejoinder by 15 October 2014 and serve the Attorney General. Subsequently the parties would address the court in written submissions.
It follows that what was left as far as pleadings are concerned is the affidavit in rejoinder of the Applicant. Surprisingly the Attorney General filed a further affidavit on 15 October 2014 without the leave of court. 15 October 2014 is the same day the court directed that the Applicant should have filed and served and affidavit in rejoinder. The filing of a further affidavit in reply would have the effect of upsetting the timelines set by the court in which the Applicant was supposed to file and serve written submissions by 29 October 2014. The further affidavit was therefore filed outside the schedule of the court and without the leave of court. The timelines were already outside the timelines prescribed by order 12 rule 3 (2) of the Civil Procedure Rules. It provides that service of interlocutory applications to the opposite party shall be made within 15 days from the filing of the application and a reply to the application by the opposite party shall be filed within 15 days from the date of service of the application and be served on the Applicant within 15 days from the date of filing of the reply. Though the rules apply to interlocutory applications after the filing of the civil suit, they also apply with equal force to any application as far as the prescribed time lines for the filing and service and the replies to interlocutory applications are concerned. The timelines are the same as those prescribed for pleadings namely plaint and written statement of defence. The facts of this case are that the application was filed on 7 August 2014 and were issued by the registrar on 22 August 2014. 11 September 2014 which is the date on which the Attorney General was served is clearly out of time for the service of interlocutory applications. That notwithstanding there was no opposition to the service of the interlocutory application and the Attorney General filed a reply well out of the prescribed time of 15 days from the date of service on 8 October 2014 about a month later. The Applicant did not object to the late filing of a reply on account of the circumstances of the Attorney General's Counsel Ms Patricia Mutesi, Principal State Attorney. Consequently both parties operated outside the period prescribed by the rules and so far by consent and leave of the court for the matter of the Applicant to be argued in a formal application. That notwithstanding the court had prescribed timelines for the filing of a reply and submissions which timelines fall within the timelines prescribed by the court under order 51 rules 6 of the Civil Procedure Rules. The Respondent has not sought the leave of the court to allow the affidavit out of time. Because the Applicant had been given time to file written submissions which had not envisaged a further affidavit on 15 October and because the date of 15 October was fixed for the rejoinder of the Applicant, the further affidavit of the Attorney General is prejudicial to the Applicant as far as timelines are concerned and was filed without the leave of court. I therefore agree with the Applicant’s Counsel that the further affidavit was filed out of time and does not giving the Applicant the opportunity to rebut any facts asserted therein. I have taken into consideration the submissions of the Attorney General to the effect that substantial justice should be administered without undue regard to technicalities. In the further affidavit, the Principal State Attorney who deposes to the affidavit attached proceedings of the court in the main suit namely Miscellaneous Application Number 865 of 2004 of which the court can take judicial notice of since it is part of the record. Secondly the proceedings were before the presiding judge and dealt with the question of interest and are relevant to the question of interpretation of how interest should be calculated if at all any mention of it is made in that application. In the premises the further affidavit of Principal State Attorney Oburu Jimmy Odoi cannot be relied upon on other matters not part of the record.
The first issue considered is whether the issue of how payment should be made and interest computed out of the decreed sum by the Attorney General should be referred to a referee to determine the issue.
In the written submissions the Applicant’s Counsel relies on the fact that the decree against the Attorney General is property according to Constitutional Case Number 1 of 1986 Edward Frederick Ssempebwa versus Attorney General. The essence of the constitutional right is that the property should not be lost. Protection from loss intends to safeguards against its diminution in worth and value. It is a submission that the award of interest safeguards loss in the value awarded by the court due to delay and the fact that payments are made by instalments spread over a long period of time. The Applicant relies on the advice of Messieurs Bernard Mukooli and Company; a reputable firm of accountants whose opinion is that the common accountant’s commercial principle is based on good conscience, justice and fair play. It is that where a debtor pays money in bits and pieces when the interest has started accruing, instalments paid are ordinarily (or customarily?) applied towards the settlement of interest first until the interest is fully satisfied before the principal is settled. This protects the Applicants right to property from diminishing in worth and value. Since the compulsory acquisition of the Applicants land in 1991, the cost of land in the area where the suit land is situated has multiplied many times in value due to different forces. The money received by the Applicant cannot enable him to acquire land in the same area and therefore his loss is obviously immeasurable.
As far as reference is made to the advice of the Accountant General given to the Attorney General that instalments paid should first be applied to the settlement of the principal amount in order to reduce the escalation of interest, this submission clearly shows that the Respondent intends to defeat the purpose for which the court awards interest which is to protect the individual from loss having taken into account the ever escalating inflation which erodes the value of the decretal amount. The Applicant proposes that this controversy between the parties should be referred to an independent chartered accountant or such other expert as the court may deem fit. In as much as the Attorney General may be bound by the opinions of the Accountant General, the court is not. The method of the Accountant General is disputed and the Applicant has presented the court with reliable evidence from an independent and reputable firm of accountants as to why he is disputing that method. The court therefore has discretion to appoint an independent accountant or expert in order to settle this dispute. He prayed that the dispute is referred to a reputable firm of chartered accountants or such other expert or organisation as the court shall deem fit or alternatively the court itself should interpret the decree and determine which mode as between that proposed by the Applicant or that of the Accountant General should be applied in the payment due to the Applicant.
In reply the Attorney General submitted that the matter in contention is the computation of interest and it cannot be referred to an accountant/accounting organisation because the Respondent has raised legal issues in the dispute which can only be adjudicated upon by this court.
The Respondent adduced evidence that during and after the court process the Applicant and his Counsel made various representations to the court and the Respondent that the paid instalments were made and received as further payment of the principal compensation sum. The Respondent has stated that the Applicant’s conduct and representation raises the legal issue of estoppels which cannot be adjudicated by an accountant. Consequently the Respondent has raised the defence that the Applicant is barred by estoppels from alleging any controversy as to the computation of interest because he had expressly acknowledged otherwise according to paragraph 18 of the further affidavit in reply. In those circumstances the dispute as to computation of interest would best be resolved by this court and in doing so resolve the question of estoppels.
The Respondent also argues that the Applicant’s preferred computation is based on a "custom" of commercial enterprises and it is not in the public interest to apply such custom to a government debt in the absence of any law or agreement. Against such an issue can only be determined by the court of law and it would not be in the public interest to refer computation of government judgment debts to a private accountant or organisation.
Consequently if the court does not grant the orders sought, there would be no prejudice to the Applicant if the dispute is determined by court as the parties would still be at liberty to call the expert accounting witnesses to guide the court as to the interest computation.
In rejoinder as earlier on set out, the Applicant raises an objection to the further affidavit in reply which has been resolved and reiterates earlier submissions.
I have carefully considered the application and the Attorney General confined her submissions to the question of whether the issue of computation of interest should be referred to an independent referee to determine the issue. The Applicant on the other hand has in the alternative prayed that the matter may be determined by the court if the court does not make such a reference as prayed for in the application.
There is no controversy between the parties as to the issues for determination. Both parties are in agreement from the submissions that there is a dispute which requires resolution on how interest should be computed which matter affects how instalment payments made thus far by the Attorney General are applied, whether to reduce interest first or the principal amount first.
The Applicant's application was made both under section 27 of the Judicature Act and section 34 of the Civil Procedure Act. As far as the provisions of section 27 of the Judicature Act are concerned, its head note stipulates that it is about "trial by referee or arbitrator". It provides that where in any cause or matter, other than a criminal proceeding, all the parties interested who are not under disability consent; or the cause or matter requires any prolonged examination of documents or any scientific or legal investigation which cannot, in the opinion of the High Court, conveniently be conducted by the High Court through its ordinary officers; or the question in dispute consists wholly or partly of accounts, the High Court may, at any time, order the whole cause or matter or any question of fact arising in it to be tried before a special referee or arbitrator agreed to by the parties or before an official referee or an officer of the High Court.
There is clearly no consent of the parties to have the matter referred for trial by a referee or arbitrator. Secondly the matter does not consist wholly or partly of accounts but revolves on the question of interpretation touching on the constitutional rights and effect of the method adopted by the Accountant General on the Applicant’s property rights as well as touching on public policy issues. Such a matter is properly adjudicated upon by the court.
Secondly the Applicant has applied under section 34 of the Civil Procedure Act. Section 34 (1) stipulates that all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge, or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit.
It follows that because the issue that has arisen between the parties is connected to or related to the execution, discharge, or satisfaction of a decree of this court, it shall be determined by the court. Of course one of the methods of the determination by court is through reference for trial by a referee or arbitrator. However I agree with the Attorney General's representative that there are matters of interpretation involved and not merely questions of fact. The court is best suited to try that issue.
Lastly I have considered the order sought in the Notice of Motion which is as follows:
"The dispute as to the method of computation of the interest accruing from the judgment in the aforesaid the matter be referred to a reputable chartered accountant or such other expert or organisation as the court shall deem fit."
Inasmuch as both parties put materials before the court for consideration, the Attorney General confined her arguments to the issue of reference and anticipated the calling of witnesses. The Applicant is bound by his pleading and order sought. The High Court however has powers under section 33 of the Judicature Act and in the words of the section, to grant absolutely or on such terms and conditions as it thinks just, all such remedies as any of the parties to a cause or matter is entitled to in respect of any legal or equitable claim properly brought before it, so that as far as possible all matters in controversy between the parties may be completely and finally determined and multiplicities of legal proceedings concerning any of those matters avoided. Dismissing the application would lead to a multiplicity of proceedings.
Secondly in terms of section 34 of the Civil Procedure Act and the apparent controversy that has arisen, the Applicants application will not be dismissed but the question of computation of interest shall be tried as clearly agreed upon in the written submissions of both parties. The issue of computation of interest as framed by the parties and as a matter arising out of the discharge of the decree of this court shall be fixed for hearing. The costs of this application shall be borne by the Applicant.
Ruling delivered in open court this 28th day of November 2014
Christopher Madrama Izama
Judge
Ruling delivered in the presence of:
Charles Okuni: Court Clerk
Jehoah Sendege for the Applicant
No one for the Attorney General
Applicant in court
Christopher Madrama Izama
Judge
28/11/2014
