Case law material on Partnership, Assignments of Law

Download Case law material on Partnership and more Assignments Law in PDF only on Docsity! 5 THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA COMMERCIAL DIy'ISION ".. CIVIL SUIT NO. 751 OF 2014 BRITISH AMERICAN TOBACCO LIMITED :::::::::::::::::::::::::::::::::::::::: PLAINTIFF 10 VERSUS 1. FRED MUWEMA 2. HERBERT KIGGUNDU MUGERWA 3. SIRAJ ALI 4. BRIAN KABA YIZA 15 5. TERRENCE KAVUMA TjA MUWEMA AND MUGERWA ADVOCATES ::::::::::::: DEFENDANTS BEFORE: HON. DR. JUSTICE HENRY PETER ADONYO JUDGMENT 20 1. Brief facts: The brief acts relating to this suit are that the Plaintiffwas sued by a collection of 2838 Hoima District based tobacco farmers. These tobacco farmers were represented by the Defendants as counsel on record in High Court Civil Suit No. 268 of 2005 (Sedrach 25 Mwijakubi and • e- • .. .. 5 Limited). The High Court delivered its judgment in favour of the farmers. The Plaintiff was dissatisfied with the judgment of the High Court and so it lodged an appeal in the Court of Appeal vide Court of Appeal Civil Appeal No. 50 of 2008; British American Tobacco Uganda Limited vs Sedrach Mwijakubi & Others. At The Court 10 of Appeal Respondents were still represented by the same law firm of Muwema and Mugerwa Advocates. While the decision regarding the appeal was pending, the Plaintiff ostensibly conducted negotiations with the Respondents farmers through their legal representatives Muwema and Mugerwa Advocates 15 with a view to settle the then pending dispute between themselves and the farmers culminating into the execution of a Deed of Settlement (Exhibit A2) dated 27th July, 2010 was signed wherein the parties agreed that the then Appellant pays the sum of Uganda Shillings Four Billion Six Hundred Million only (Ug. Shs 20 4,600,000,000/=) inclusive of Uganda Shillings Three Hundred Million Only (Ug. Shs. 300,000,000/=) to then then Respondents which amount was to constitute the whole settlement of the dispute .. 5 With all these efforts ending in vain, the Plaintiff quickly paid the decretal sum of Ug. Shs.14, 364, 358,042/ - directly to the farmers and thereafter made several demands to the law firm of M/ s Muwema . ~. and Mugerwa Advocates to have refunded to it the sums previously remitted to it amounting to Uganda Shillings Four Billion Six 10 Hundred Million only (Ug. Shs 4,600,000,000/=) which had erroneously been paid as a settlement of the dispute between the parties then pending appeal at the Court of Appeal. M/ s Muwema and Mugerwa Advocates immediately, thereafter, by a correspondence dated 8th July 2013 communicated to the Plaintiff/ 15 Appellant in Supreme Court of the remittal of Uganda Shillings One Billion Only (Ug. Shs. 1,000,000,000/= (Exhibit P11) in addition to mentioning that an amount of Ug. Shs 921,195, 924/= had been directly remitted to the farmers in addition to indicating that the balances of monies they had received had been reduced to their legal 20 fees and disbursements since they had a remuneration agreement with the farmers entitling them to a portion of the amount recovered which they intended to apply towards their outstanding fees. • 5 This state of affairs was rejected by M/s Kwesigabo, Bamwine & Walubiri Advocates who then were representing the farmers by their letter dated 8th July, 2013 (Exhibit P12) wherein they requested the .'. . . Manager Standard Chartered Bank not to receive any such money from M/ s Muwema and Mugerwa Advocates stating that the said 10 money was remitted without their client's authority and against their interests. The Plaintiff herein then through M/s Sebalu & Lule Advocates and Solicitors on 18th July, 2014 demanded from M/s Muwema and Mugerwa Advocates the sums of all monies paid to them directly by 15 their client arguing that the said money was paid in error and thus should be refunded. M/s Muwema and Mugerwa Advocates did not do so and so the Plaintiff being dissatisfied with the inaction of the Defendant brought this suit for claims as follows; 20 a. An order for the refund of Uganda Shillings Three Billion, Six Hundred and Seventy Million only (Ug. Shs. 3,670,000,000/=), being money had and received owing to a failure of consideration. • 5 b. Paid interest of Uganda Shillings Four Billion, Eighty-Two Million, Three Hundred and Fifty Six Thousand Three Hundred Eighty Five only (Ug.Shs. 4,082,356,385 ) on the failed deed of settlement owing to the Defendants lack of mandate to enter ", . settlement. 10 c. Interest on (a)at court rate from the date ofmaking the demand. d. Costs of the Suit. 2. Representation: During the hearing of this matter the Plaintiff was represented by Mr. Michael Mafabi and Mr. Allan Waniala of M/s Sebalu & Lule 15 Advocates while Mr. Mulema Mukasa of M/ s KSMO Advocates appeared for the 1st Defendant and Mr. Ebert Byenkya and Mr. Bazira Anthony of M/s Byenkya, Kihika & Co. Advocates appeared for the 2nd, 3rd, 4th and 5th Defendants. 3. Issues: 20 The parties framed the followingfor trial; 1. Whether the Plaintiff has an actionable claim in law and is entitled to a refund of monies paid to the firm of Muwema & Mugerwa Advocates 7 • s It was argued for the Plaintiff that the ruling meant that under the decree of the Supreme Court, the Plaintiff was condemned to make double payments in respect of the claims of the farmers who were formerly clients of the Defendants. ", . Counsel submitted further that the Plaintiff made a demand for the 10 sum upon which the Defendants partially refunded Ug. Shs 630,000,000/= leaving a balance of Ug. Shs. 3,670,000,000/= the principal amount in addition to interest and costs of the suit. Counsel referred to incidents oflegal liabilityof the Defendants jointly and severally. lS On this it was argued that the Defendants are jointly and severally liable to refund monies owing to the Plaintiff as money had received by them referring to Bryan Gamer, Black's Law Dictionary, Ninth Edition at page 33, that; 'An action for money had and received lies to recover 20 money which the Plaintiff had paid to the Defendant. The action lies to recover money on the ground that it had been paid under a mistake or compulsion, or for a consideration which had wholly failed ••.•' k vo (cNwOA ",Jt fill fl4~1l~~ (fw.t'/~""';~ J./I-. vv. U. ~a" • 5 It was further submitted that the concept of money had and received is founded in equity and is meant to prevent unjust enrichment of the Defendants at the expense of the Plaintiff. ", . Several authorities were cited by counsel including Clothlink Uganda Limited vs African Trade Investments Fund Limited & 10 Another HCCSNo. 234 of 2010 as well as Chitty on Contracts, 33rd Edition. On the liability of the Defendants jointly and severally, counsel for the Plaintiff asserted that the section 9 (1)of the Partnership Act (D. Exh.18) provides that a partner in a firm is liable jointly with the 15 other partners for all the debts and obligations incurred while he or she is a partner. And that at the time the sums were received, DW1 and DW5were partners and remained so during the period when the monies claimed were utilized by the law firm. That the 3rd, 4th and 5th Defendants were also partners when the 20 liability arose. The Plaintiffs counsel contended that they became partners by virtue of the partnership deed dated 1st February 2011, and became liable because after they joined the Defendant's law firm, the said firm continued to carry out work relating to the case and ;':".fol"lln s1J.r.r • 5 that also became liable for the Ug. Shs. 4,300,000,000/= after the Supreme Court decision held that this sums were recoverable against the firm of Muwema and Mugerwa Advocates. Counsel pointed to .' several acts which according to the PlaIntiff were proofthat the 3rd, 4th and 5th Defendant were liable jointly with the 1st and 2nd 10 Defendants and these included several correspondences issued or received by the firm of Muwema and Mugerwa Advocates (P.Exh.ll, P.Exh.12, P.Exh.17) where they approved or participated as partners; filing of bill of costs where the 3rd, 4th and 5th Defendant pleaded that they entitled to a share a lien of the costs in this matter, and also 15 that the bill of costs (D.Exh.6 and D.Exh.7)were signed off by the 3rd and 5th Defendants which was proof that That in British American Tobacco Uganda Limited vs Muwema and Mugerwa Advocates Civil Suit No. 751 of 2014, on the question of liability, the court found that since the 3rd, 4th and 5th 20 Defendants were involved in the administration of finances on the Defendant's law firm, they were equally liable. It was counsel's submissions that there should be a refund since it was the finding of the Supreme ~at the Deed of Settlement J~lt·fo/~t~. (It. (j t!i:rjP • • 5 to discharge the 2nd Defendant. That this was even clear in the paragraph 9 (b) of the 1st Defendant's defence, in paragraph 29 of the 1st Defendant's witness statement, as well as paragraph 7 of the witness statement of DW6. ".. On issue (V)of whether the Defendants are liable to refund the sum 10 of Ug. Shs 921,195,924/= which was paid out to the farmers, Counsel submitted that the sum of Ug. Shs 921,195,924/ = was also included in the sum sought by the Plaintiff, and the matter was res judicata since the Supreme Court already found that this sum was the responsibility of the Defendants and their clients. That the 15 Defendants' clients argued successfully contended that no payments were ever made to them., and there was no evidence they had actually ever received it and therefore the Defendants are liable for this sum. On issue (VI) of whether the plaintiff is entitled to the remedies claimed The Plaintiff sought a refund of the Ug. Shs 3,670,000,000/= 20 being money had and received; as well as Ug. Shs 4,082,356,385/= being interest owing and outstanding from the payment of the decretal sum of Ug. Shs 4,300,000,000/=; interest on the 5 outstanding amount from at court rate from the date of demand on 18th July 2014 until payment in full; and costs of the suit. b. Defendants submissions: " . a. 1st Defendant's submissions: On whether the Plaintiff has an actionable claim in law and is entitled 10 to a refund of monies paid to the firm of Muwema & Mugerwa Advocates, the 1st Defendant's counsel submitted that the Plaintiffs submissions heavily relied on the ruling in Supreme Court in Civil Application No. 7 of 2013 BAT (U)LTD Vs Sedrach Mwijakubi & Others, an application for review, yet it in no way found that the 15 Plaintiff has an actionable claim but instead arrived at several conclusions including that the Applicant took a risk to make part- payments to the law firm, and was at liberty to recover whatever sums were due to it. That, it also found that the Supreme Court could not make an order against the law firm for repayment of the monies 20 since it was not part of those proceedings; and that it was necessary to establish if the said sums were due to the Applicant from the law firm, through a suit, if it was actionable . .. 5 According to the 1st Defendant's counsel, the payment of the sums in question arose out of Deed of Settlement (D.Exh. 1)and the Consent Order (D. Exh.2), which is barred by law and is illegal, because the . ~. Plaintiff and the farmers attempted to settle an appeal by consent and reverse the judgment of the lower court. Counsel relied on 10 Bulasio Konde vs Bulandina Nankya & Another Civil Appeal No. 7 of 1980 for the holding that an appellate court will not allow an appeal by consent as to do so would be to find that the decision below was wrong and that only an appellant court has powers to reverse a decision of the court below after hearing the appeal. 15 Counsel for the 1st Defendant submitted that the Consent Order sought to reverse the Judgment and Decree in that it was agreed to reverse the judgment and decree of the High Court and yet it expected the court to go by the Consent Order without deciding the matters of law. It also decided the liability of both parties and discharged them, 20 without the court deciding the matters of law and arriving at a decision, and the amounts to be paid by BATwere not included in the Consent Order but were secretly hidden and kept in the Deed of Settlement. That, the clause in the Consent Order that 'This Appeal JJ,•.fwti t7t&. !ilcnr • 5 taxation, before the Plaintiff can pay the Defendants' law firm as the retained advocates on record. Counsel submitted that the bill of costs for both claims is Ug. Shs 1,747,929,639/= for the High Court . and Ug. Shs 2,409,323, 178/= for the Court of Appeal with the total " . being Ug. Shs 4,157,252,817/=. 10 Counsel distinguished the case of Shell Uganda Ltd & 9 Others vs Muwema and Mugerwa Advocates & Solicitors cited by the Plaintiffs' counsel and stated that in the present case, the clients admitted as per P. Exh.7 that the advocates were not paid their costs and in fact agreed that they had been admitted they had indeed 15 instructed the Defendant's law firm. Concluding the submissions on this issue, counsel submitted that the Defendant's law firm has a statutory lien on the sums paid to it, cannot be paid by its clients the legal fees as per section 46, notwithstanding the withdrawal of instructions or the fact that the 20 Court of Appeal declined to endorse and seal the Consent Order or that the Supreme Court declined to validate it. On Issues No. 4 and No. 5 Whether the payment of Ug. Shs 630,OOO,OOO/~ was paid to sOle~harge the second Defendant ;~lb.fot.Yr ~~. dY (j dil'Vr • 5 and whether there was a discharge of the second Defendant, submitting on these two issues, counsel argued that in a letter dated 1st August 2014, the Defendant's law firm demonstrated that the . ~. amount in question was a payment from the law firm to the Plaintiff, and that this was corroborated by the testimony of DW5 and DW6 10 Mr. Kagoro Roberts Friday. On issue 6 of whether the Defendants are liable to refund the sum of Ug. Shs 921,195,924/= which was paid out to the farmers, it was counsel's submissions that in filing CivilApplication No. 07 of 2013, an application for review, the Plaintiff sought inter alia, an order that 15 'the court make directions and orders that the sum of Ug. Shs 921,195,9241= already paid to some of the beneficiaries to the judgment in Supreme Court CivilAppeal No. 1of2012 as per account rendered in compliance with the Order of Court of Appeal in Civil Application No. 187 of2010 arising out of CivilAppeal No. 50 of2008 20 is factored in the computation of the decretal sum in Civil Appeal No.1 of 2017 as monies paid on account. That the above orders sought by the Plaintiff was made well aware that Ug. Shs 921, 195, 9924/=Es already paid 1'/J { , I' 1jJ)fill ,,;1~",w- (}tAJ;lt,~ ~ ", dt. V. tfldtJf/~ to some of the •. • 5 farmers. Counsel submitted further that the accountability by the law firm, D. Exh.5, which was a letter submitted to the Court of Appeal showed that payments were made to the farmers showed that . ~. these sums were paid to the farmers and that the Plaintiff cannot approbate and reprobate at the same time for as per P. Exh.5, D. 10 Exh.3, D. ExhA and D. Exh.5, it cannot say one thing during the Supreme Court proceedings and another at the High Court. Further still, that in Civil Application No. 7 of 2013, the Supreme Court advised the Plaintiff to take steps to recover Ug. Shs 921,195,924/= from the farmers provided that the money is due to 15 it. On whether the plaintiff is entitled to the remedies claimed, Counsel submitted that the Plaintiff is not entitled to the remedies claimed because the transaction was illegal and the court cannot endorse an illegality since the Defendant's law firm was only an agent of the 20 principal and the proper party to the suit should have been the farmers. Thirdly, Counsel submitted that that the suit is barred by clause 7 of the Deed and the principle ofPro~ estoppel prohibits the court I1jj) «~. 2fJA Iljj}~ di;;,~ (}w/l;.(/t,Y' J)1-,at: ~ • .' 5 was paid to the Defendants pursuant to objects that were unlawful and whose performance was also unlawful as seen from the evidence by DW5 who noted that by the Plaintiff insisting on making . ~. payments yet it was well aware that the consent had been rejected, it was doing so in defiance of a court judgment. To aid its argument, 10 counsel cited the case of Jamba Soita vs David Salaam HCCSNo. 4000 of 2005, and Legal Brain Trust and Others vs Hassan Bassajabalaba and others Constitutional Petition No. 4/2012, where it was held that in a claim for recovery of money had and received, the courts cannot enforce a claim arising out of money paid 15 out of an illegal act as per the principle of ex turpi causa non oritur action since the Plain tiff could not make out a case under an illegal transaction and so the court should find so. 6. Decision of Court: In making my decision in this matter, I have taken into account the 20 pleadings in this matter, the affidavits in support and in opposition tendered herein, the evidence of witnesses, the documents in form of Annextures on record, the submissions of counsels and the authorities cited by parties. ~ ¥lb.ld~fj1v.£9. tlixp • 5 In resolving this matter, I have adopted the issues framed by the parties. These issues are discussed and findings on each is made accordingly as below. •. . a. Whether the Plaintiff is entitled to a refund of monies paid to the firm of Muwema and MugerwaAdvocates: 10 There is no doubt that British American Tobacco Uganda Ltd, the Plaintiff entered into a Deed of Settlement cum Compromise (P.EXH.2) dated 27th July 2010 with Sedrach Mwijakubi and Others for the purposes of settling the dispute between the parties amicably arising out of a Court of Appeal Civil Appeal No. 50 of 2008 where it 15 was agreed that the Plaintiff would make a total payment of Ug. Shs. settlement sum and Ug. Shs. 300,000,000/= being the costs of the Appeal and the Original Suit at the High Court. It is also correct and factual to state that these payments were made to the law firm of Muwema and Mugerwa Company Advocates for the benefit of the 20 Respondents in the said civil appeal. This was before the Court of Appeal made its final decision. However, when the Court of Appeal subsequently delivered its judgment on 12th August 2010 in ~ur of the farmers the Plaintiff ~/~,fo. f)~.Jt. ~ dlavF • 5 herein was not satisfied with the decision of the Court of Appeal and thus appealed to the Supreme Court challenging the decision of the court on several grounds. . The appeal, however, was dismissed by the Supreme Court in favour " . of the farmers with the result that the Supreme Court ordered the 10 Plaintiff herein to pay a total of Ug. Shs. 14,364,358,042/= to the farmers which it did directly. The Plaintiff now seeks to recover the sum of Ug. Shs. 4,300,000,00/= which was paid to the Defendant law firm a result of the Deed of Settlement before the Court of Appeal's decision and the 15 subsequent dismissal of its appeal by the Supreme Court which was not approved by the courts as money had and received. Several facts in relations to this claim have been adduced and I am satisfied from the evidence before me that indeed a Deed of Settlement was made in 2010 as final settlement between the Plaintiff 20 and the tobacco farmers while there was an appeal in the Court of Appeal of the decision of Frederick Egonda-Ntende, J (as he then was) well before the Court of Appeal. This settlement was not confirmed by the Court of Appeal. • • 5 to fail, or for money got through imposition (express or implied) or extortion or oppression or undue advantage taken of the plaintiffs situation contrary to laws made for ,'.. the protection of persons under those circumstances". (Underlining for emphasis added) 10 The Learned Justice tlsus concluding from the above statement went on to determine that from the circumstances of the case before him natural justice and equity obliged the defendant in the case before the Court of Appeal ought to refund the money it had received. In regard to the principle of money had and received the holding in 15 the case ofKensheka vs Uganda Development Bank Civil Suit No. 469 of 2011 is relevant for the said court while referring to the holding in Dr. James Kashugyera Tumwine, & Another vs Willie Magara & Another went on to explain the principle of money had and received as being;" 20 "Money which is paid to one person which rightfully belongs to another, as where money paid by A to B on a consideration which has wholly failed, is said to be money had and received by B to¥se of A. It is recoverable by J&..~fJJ,.. Jt. (j fJtk'~r • 5 action by A. The paying of A toB according to the Learned Author of A Concise Law Dictionary by P.G Osborn 5th Edn 9th P.212 becomes a quasi-contract an obligation not . ~. created by but similar to that created by contract and is independent of the consent of the person bound the 10 other view is that in an action for money had and received liability is based on unjust enrichment i.e. the action is applicable whenever the defendant has received money which in justice and equity belongs to the Plaintiff under circumstances which render the receipt of it by the 15 defendant a receipt to the use of the Plaintiff. " The import of the decisions above demonstrates the fact that a plaintiff is entitled to bring actions to recover sums of money where there was evidence that monies from one party to another was paid but that due to non-performance or defect in whole or part of the 20 agreement or where there was a failure of consideration nothing of value could be performed resulting in the plaintiff being aggrieved and was entitled to restitution . • 5 Relating the above concepts to the instant matter, it is the case of the Plaintiff that it should be refunded monies which was received by the defendants' law firm which was paid as a result of an attempted . ~' settlement of a decision of the High Court then pending an appeal before the Court of Appeal which was later appealed to the Supreme 10 Court with finding that the Deed of Settlement that was signed between the parties and had not been approved by the Court of Appeal was not a valid compromise settlement and consent with the Plaintiff herein being advised to seek to recover the same by the apex court from those who received the said money. 15 That is exactly what the Plaintiff did and in its argument the Plaintiff submitted that the said money remitted to the Defendants possessed of the character of client's money and that since it was paid for the benefit of the Defendant's clients who subsequently were paid all what was due to them then the money which was paid to the 20 defendants should be refunded. This claim was, however, rubbished off by the 1st Defendant on grounds that the Deed of Settlement which is the documentary evidence on record titled as D.EXH 1 and the Cons ent Order $Ib'~t.-£(j ~ • 5 sought for orders rescinding the appointment of the 1st, 2nd, and 3rd Respondents thereto as their representatives. At the same time the Supreme Court In Supreme Court. ~. o Miscellaneous Application No. 07 of 2013 British American Tobacco (U)Ltd vs Sedrach Mwijakubi and 4 Others commented 10 that indeed the Deed of Settlement lodged in the Court of Appeal was could not be a valid document since it was not endorsed by the Court ofAppeal for the Court ofAppeal had proceeded to go ahead to deliver its judgment without any regard of the same or of money paid under it. 15 Given the above, the Supreme Court concluded that there was no valid deed of settlement or consent order. I am subordinate to the above findings above of the Supreme Court and would similarly conclude that the Deed of Settlement and the Consent Order were never valid documents .for they never received 20 any seal of approval by the courts. And thus were illegal with any actions arising from them to be ofno consequence given that the said documents attempted to settle a then pending appeal against a decision of the High Court. ~._ ~~Pkjl(j~ o • 5 That position being as so then the Defendants' assertions that they had a right of lien on funds received is rendered moot with the Plaintiff not being estopped from bringing an action even if it was a . ~. participant and signed documents which have been declared illegal ab initio rendering the 1st Defendant argument the Plaintiff cannot 10 come to court to make claims under documents barred by law and illegal invalid. On the other hand , from my consideration of the sum total of evidence before me show that these said illegal documents were orchestrated by the 1st Defendant through his law firm for reasons 15 which I consider purely selfish since nowhere has it been shown that the Plaintiff, while it proposed a settlement, did so in an attempt to settle a dispute between it and the farmers yet the defendant law firm was representing the farmers and officers of the law who should have known better the legal consequences of one trying to circumvent 20 illegally court process and should have given proper legal advice accordingly. Therefore, my conclusion would be that since it was the law firm which should have taken profess~esponsibility to advise the ~.~P}1-. Jtg, rlJnro .. 5 Plaintiff of the consequences of the illegality in trying to circumvent a court decision then it is the defendant law firm which is in the wrong and I find no ill intention on the side of the Plaintiff when an . ~. attempt was made to reverse orders and decisions made in the Judgment / Decree of the High Court per F.M.S Egonda Ntende J (As 10 he then was). Therefore, the Plaintiff would have a right to bring this action for money had and received for indeed consideration had failed as was held in the case of Nipun Norratum Bhatia vs Crane Bank Limited and even commented upon by the Supreme Court when it found that 15 monies which were paid outside the decision of the Court of Appeal or its decision were illegal and thereafter even proceeded to order the Plaintiff to pay Ug. Shs. 14,364,358,042/= to the farmers rendering the earlier payment of Ug. Shs. 4,300,000,000/= received by Defendants' law firm for purposes of settling the suit against the 20 Plaintiff to become due and thus entitling the Plaintiff to its refund as a cause of action founded in equity for money had and received with the result that tit would be entitled to restitution . • 5 tobacco farmers, both High Court and Court of Appeal where costs were awarded. However, according to the 1st Defendant, the bill of costs in relations " . to that representation have been filed in both the High Court seeking for Ug. S s. 1,747,929,639/= and in the Court of Appeal seeking for 10 Ug. Shs. 2,409,323,178/= but are yet to be taxed meaning the Defend-ant law firm has to date not yet been paid even though there is a let er of withdrawing instructions from the Defendant's law firm dated 2~<ndOctober 2010 wherein the clients of the Defendants said that upon completion of the appeal in the Supreme Court, they would 15 take action towards the settlement of the Defendant's bill which they also urged the Defendant's law firm to share with them, the 1st Defen rllt submitted that the law firm has not been paid to date. Couns« ~ for the 1st Defendant submitted that the Defendant's law firm hac; t.hus a statutory lien on the sums that were paid to it by the 20 Plaint] r -1 nd thus could not pay the same out to its beneficiaries until o the fir '<:; legal fees and costs are paid pursuant to Section 46 of the Advoc= S Act with the fact being that the advocate-client fees / the Advocate-Client remuneration) being that the defendant law firm is ~,fotJPtdt. gJ ~ .. 5 seeking for the costs of the suit, 12% of the total proceeds as well as 30/0 of the total claim as the matter goes on appeal. First and foremost, I should state that by the holding In Shell ". ' Uqand« Limited & 9 Others vs Muwema & Mugerwa Advocates o and Solicitors the sum of 12 % of the total proceeds of the clients' 10 claim would be excessive and on the high side. Inote that moreover, the Defendant's law firm has already received the sum of Ug. Shs. 300,00(\000 which was paid under the Deed of Settlement as costs for the '}dvocates. However, of most importance is the fact that the Defendant law firm 15 has no locus standi to apportion for itself its due legal costs and fees without going through the process bill of taxation for doing so otherwise would amount to an illegality which is sanctionable by o deregis: '"ation. Furthc: nore, given that the Plaintiff was not even the client of the , 20 Defend : '1t law firm, the said law firm cannot claim a lien on funds to paid to it erroneously since those funds were even found by the Suprerr-c Court to have been illegally paid to it and without author-v-ition of both the Court 0:t~pealand the Supreme Court ~.~PA dt [J. rikr e- 5 meanir-r; that whereas the Defendant's law firm could be entitled to claim costs and fees, it must do so directly by making demands upon final taxation of its bills from their former clients the tobacco farmers . ~. purpos- c:; of settling its due claim and not from sums which were paid er oneously to it by BAT(U)Ltd.(Plaintiff) for those funds paid to 10 it are il rally held. Therefc 1 ,my finding here is that the Defendant law firm holds no legal li : on the monies paid to it erroneously by the Plaintiff and thus m st return it? accordingly as that would amount to illicit enrich lent. 15 c. es No. 4 and No. 5 Whether the payment of Ug.Shs. 0,000,000/= was paid to solely discharge the second "ndant and whether there was a discharge of the second ndant: In thc . t scheduling memorandum, dated 9th September 2015, it 20 parties ~'lated that it. was as an agreed fact that on 15th July 2014, the si of Ug. Shs. 630,000,000/= paid to the Plaintiff by the Defenr 1t was done so as a partial refund after various demands to refun ' '~monies. • 5 187 ( No. 1 In its App1 10 from. 921, In m: far the I 15 even' 010 arisi 9 out of Civil Appeal No. 50 of 2008 is fn the com ut.atioti of the decretal sum in Civil Appeal 012 as monies paid on account. J ing on this issue, the Supreme Court made orders that 'The «t: should ... take steps to recover any money due to it y of the respondents claimed to amount to Shs 924/=. ' 'isidcrcd opirnon, the respondents referred to were the 'neficiaries) ~)nd no one else and as rightly pointed out by .ff the issuc in regards to this amount is res judicata for laintiff also acknowledges that some payments were made dircc ' __) the farmers. On r: evid of 20 cann mak ofU sis of this fact alone, I would find that there is sufficient 'iat this sum was paid out to the farmers as beneficiaries le Plaintiff is well aware and even ~pproved and therefore -ck to recover these sums from the Defendant's law firm e Defendant's law firm not to be liable to refund the sum .921,195,924/=. • 5 e. 1 1 e 6: Whether the Plaintiff is entitled to the remedies The 1 shilli: Ug. S 10 The I profcs Defc~- cornp My 0 15 evido This t the cll direc the I' 20 betw was I been ed: tiff seeks a refund of Ug. Shs. 3,670,000,000/= (Uganda ".. .Iiree Billion Six Hundred and Seventy Million only) less the (')30,000,000/= that was refunded on 15th July 2014. tiff also sought interest of Ug. Shs. 4,082,356,385/= for ial misconduct and misrepresentation on grounds that the L law firm misrepresented that it had the authority to .se and settle the dispute. -ation is that the Supreme Court in its finding, found no fmisrepresentation on the part of the Defendant's law firm. ion is not supported by any evidence before this court. In .itive I find as a fact that it was the Plaintiff Company which proached the Defendants' law firm with the possibility for o o -:;in this dispute to conciliate and settle the then dispute he parties during the time when the Defendants' law firm scnting the tobacco farmers with the instructions having 1 to it on 18th March 2005 by Sedrach Mwijakubi, Joshua 5 BY81' , reprc-: Even 2010 1 Appc« 10 defcn time c farmo: some whic 15 Defc Dcfr+ bcn .. Furl' Dofc-: I 20 clio a !-: sc t.L ' arn and Solomon Kiiza who were at the time the elected 'ltives of the farmers and beneficiaries. t gh the said instructions were withdrawn on 22nd October " . he same representatives after the judgment in the Court of 7~lSdelivered, I find from the record that throughout the 's law firm continued to represent the farmers even up the : alleged settlement with some payments even made to the . eneficiaries through the Defendant's law firm even though igreements subsequently arose among the beneficiaries agreements I have not found directly attributable to the 's law firm and as such the Plaintiffs claim that the s' law firm had no authority to act on behalf of the cs would, in my view, have no basis. ore, no evidence of professional misconduct on behalf of the law firm as against its client while still representing their emonstrable. Indeed, my finding is that there was constant contact between the parties which even led to the alleged of the then '(natter which though subsequently was not 'JYthe Court of Appeal and found illegal by the Supreme ~" ~~J' "'t ~ () ~47. Jj. ¥ ,~ ."/. If).",,,,"I •.•.•. ~ .• v..,;';"", ....v I"', ."/J • v... '-J Iv io V 5 r,. I +dcr : Arising r~0m my findings above, Iwould make the following orders; 1. T r t the Plain tiff is entitled to recover from the 1st and 2nd ".. Lcfcndant a balance of Uganda Shillings Two Billion Seven 11undrcd and Forty-Eight Million Eight Hundred and Four 10 T iousand and Seventy-Six (Ug. Shs. 2,748,804,076/=) " 'ch was money had and due to the Plaintiff and 1 treasonable withheld from the use of the Plaintiff even after • r~ decision of the Supreme Court on the matter otherwise. .. 11. It the Plaintiff is awarded interest at the court rate of 6 0/0 15 annum on the balance of Uganda Shillings Two Billion 'en Hundred and Forty-Eight Million Eight Hundred and u r Thousand and Seventy-Six (Ug. Shs. 2,748,804,076/=) f n the date it was received till payment in full. 111. vc found that when the Plaintiff paid the sum of Uganda 20 I: Vs Four Billion Six Hundred Million only (Ug. Shs " )() ( 0,00\,)/=) to the Defendant law firm M/s Siraji Ali, n Kabayizn and Terrence Kavuma were not partners in d"rcndan~ law firman:;:.; virtue of Section 19 of the r" t·. ~ ,{r» 0, 'r;O"n•.... 50..1•...1 ..!I,.,v. . '. h i<//~ -. 5 -tncrship Act they are not culpable and liable for any C : 0 s before becoming partners they became partners only o 1sl February 2011. They are thus discharged from any " . iliics in this regard. IV. 'I r > 1 .rs t and Second Defendants to meet the costs of this 10 1_ it. equal Cl ounts. I so ordo ">11' 4' J~ .f;. VJ "1...........................~":::.<::~~" ~t.~. Hon. Dr. Justice Henry Peter Adonyo 15 Judge 25th September 2020 u 51