Commercial Court Division
(hereinafter called “GOSS”). The Defendants further contend that the Plaintiffs did
not respond to this material fact thus putting the material fact in issues pursuant to
Order 15 Rule (1) and (2) of the Civil Procedure Rules (CPR) and Order 8 Rule 18 (5)
of the CPR.
The framing of this issue was then left to the court under Order 15 Rule 5 of the CPR
which provides
“… The court may at any time before passing a decree amend the
issues or frame additional issues on such terms as it thinks fit and all
such amendments or additional issues on such terms as it thinks fit and
all such amendments or additional issues as may be necessary for
determining the matters in controversy between the parties shall be so
made or framed …”
The test to be applied by Court in the application of Order 15 rule 5 is the
determination of the matters in controversy between the parties.
A review of the pleadings and the joint case scheduling conference memorandum
dated 24th April, 2010 shows that the real matter for determination is whether or not
the sum of Shs.3,482,303,277/= is payable by UTL to MTN.
The answer to this
question lies in a series of interpretations of sub questions culminating in the most
important one of whether the traffic to Gemtel is local or International traffic. I shall
address in more detail later in my Judgment. The rest of the issues were not in
controversy and so the issues to be addressed by court are;
1. Whether the code +256 477 xxx was assigned to Southern Sudan, and if so,
whether such an assignment was valid.
2. Whether the Defendant is liable to pay the Plaintiff the sum claimed or not?
3. Whether the Plaintiff is entitled to the interests as claimed in the plaint or not?
4. What remedies are available to the parties?
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