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THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT
KAMPALA
(COMMERCIAL COURT DIVISION)
HCT-00-CC-CS-0383 of 2003
HARESH DALWADI T/A BUGOLOBI KOBIL SERVICE STATION .......... PLAINTIFF
VERSUS
A.A. G AND SONS TRANSPORTERS LTD.
.................... DEFENDANT
BEFORE: JUSTICE LAMECK N.
MUKASA
JUDGMENT:
The Plaintiff’s claim against the defendant Company is for recovery
of the sum of Shs9,088,200/= being the unpaid amount for
petroleum products
supplied by the plaintiff to the Defendant on credit, general damages, interest
and costs of the suit. By order
of court in Miscellaneous Application No. 445
of 2003 summons to file a written statement of Defence were served on the
defendant
by substituted service on 15th April 2004. The Defendant
did not file a written statement of Defence and an interlocutory judgment was
entered against the Defendant
on 14th June 2004 and the suit set down
for formal proof hearing. Consequently the suit proceeded exparte.
In his
evidence the plaintiff Mr. Haresh Dalwadi, trading as Bugolobi Kobil Service
Station, testified that he carries on the business
of a fuel station at Kobil
Petrol Station Bubolobi Plot 78B, Port Bell Road. That in January 2003 he was
approached by the Defendant
Company through its director Mr. Ally Haji Abdi who
expressed interest in buying fuel from the plaintiff’s service station
on
credit terms. Following the discussions between the Plaintiff and the said Ally
Abdi the Defendant Company put its request in
writing vide a letter tendered as
Exhibit P1. The plaintiff, on receipt of the Defendant’s application for
supplies of fuel
on credit terms, issued to the Defendant company a fuel
requisition voucher book which the plaintiff normally issued to customers
supplied with petroleum products from his station on credit. The plaintiff
explained that the Book contained 50 leaves in triplicate.
On requisition
for supply of fuel by the customer the voucher would be signed by the authorized
officer of the customer, in the instant
case the said Allly Haji Abdi. The
original and duplicate copies would be presented to the station on requisition
for supply. Under
the arrangement the plaintiff supplied the Defendant with
diesel and lubricant oils on 39 Requisition Vouchers (fuel order forms)
collectively tendered as exhibit P2. The Fuel Order Forms ranged from
1st February 2003 to 18th February 2003 and each indicated
the quantity of fuel supplied. Payment was to be made on a fifteen days basis.
The plaintiff tendered
in evidence two financial statements received as exhibit
P3, showing the monetary values of all the fuel orders made by the defendant
and
supplied by the plaintiff. Over the period between 1st February 2003
to 28th February 2003 the Financial Statements show a total supply of
petroleum products worth Ugshs.12,103,700/= for diesel and for lubricating
oils
Ugshs484,500/= making a grand total of Ugshs12,588,220/=. The plaintiff
testified that out of the above sum the Defendant made
a cash payment of only
Shs.3,500,000/= on 29th February 2003, as indicated on the Financial
Statement. This left a balance of Shs.9,088,200/= which the plaintiff now
claims.
The above evidence shows that at the request of the
defendant the plaintiff, between 1st February 2003 to 28th
February 2003, supplied petroleum products to the defendant worth a total sum of
Shs12,588,200/=. Out of the above sum the Defendant
made a cash payment of
Shs3,500,000/= on 19th February 2003, leaving a balance of
Shs9,088,200/= owing and due from the Defendant to the plaintiff. This evidence
is neither denied
nor rebutted by any evidence or pleading to the contrary. In
Agadi Didi V/S James Namakajo H.C.C.S. No: 1230 of 1998 ((1989) KALR 180)
Justice Ntabgoba PJ stated:
“ I should from the outset, point out that failure to file a defence raises a presumption or constructive admission, of the claim made in the plaint and the story by the plaintiff, in the absence of a defence to contradict it, must be accepted as the truth.--”
See also Francis
Babuzabirwa V/S Faud Ali t/a Muhamed’s Garage H.C.C.S. No: 623 of
1992. In the circumstances I find that the Plaintiff has on a balance of
probabilities proved that the Defendant Company owes the plaintiff
a sum of
Ugshs9,088,200/= being the unpaid balance for fuel supplied on credit to the
Defendant by the plaintiff. Therefore judgment
in the above sum is entered in
favour of the plaintiff.
The plaintiff also claimed for general damages.
The evidence shows that payment was to be made half monthly. In the month of
supply
only a small partial payment of shs3,500,000/= was made. Since March
2003 the plaintiff has been denied the utilization of his money.
This was
money, which the plaintiff could have re-invested in his business. So he must
have suffered loss as a result of the non-payment.
He was inevitably
inconvenienced. In the circumstances I find that he is entitled to general
damages for the inconveniences and
loss suffered. I find the sum of
Shs2,000,000/= suggested by the plaintiff’s counsel reasonable in the
circumstance and general
damages are awarded in the same figure.
The
plaintiff claimed interest on the sum of Shs9,088,200/= at 25% per annum from
the 28th February 2003 till date of the judgment. No evidence was
adduced to lay the basis for this claim. The claim accordingly fails.
However,
the plaintiff is entitled to interest on the decretal sum of shs11,088,200/= at
the court rate from the date of judgment
until payment in full.
In the
final result judgment is entered in favour of the plaintiff against the
defendant company in the following terms:-
(a) Special Damages of Shs.9,088,000/= (b) General damages of Shs.2,000,000/= (c) Interest on (a) and (b) at the court rate from the date of judgment until payment in full. (d) Cost of this suit
Lameck N. Mukasa
JUDGE
10/10/2005
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.RTF of original document