|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
Uganda: Commercial Court |
[Database Search] [Name Search] [Recent Decisions] [Noteup] [Help]
THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT
KAMPALA
(COMMERCIAL COURT DIVISION)
HCT-00-CC-CS-0095 OF
2005
SYLVAN KAKUGU TUMWESIGYIRE ::::::::::::::::::::::::::::::::::::
PLAINTIFF
VERSUS
TRANS SAHARA INTERNATIONAL GENERAL TRDG L.L.C. :::::::::: DEFENDANT
BEFORE: THE HON. JUSTICE GEOFFREY
KIRYABWIRE.
J U D G M E N T:
The plaintiff Sylvan Tumwesigyire brought this case against the defendant
company M/S Trans Sahara International Trading L.L.C. seeking
the recovery of a
motor vehicle a Toyota Premio worth $2,200 or its equivalent in Uganda Shillings
and a refund of the value of goods
worth US$1150 that went missing in the car,
general damages, interest and costs of the suit.
The brief facts of the
case are that on or about 3rd December, 2001 the plaintiff bought a
motor vehicle a Toyota Corona Premio (Chasis No. ST 190-4003442) from World Auto
Motors, a
company based in the United Arab Emirates (UAE) at USD$2,200/=. The
motor vehicle the subject of this suit was one of the five motor
vehicles the
plaintiff had bought in the United Arab Emirates (UAE). Inside the suit motor
vehicle were placed an assortment of
goods worth US$1150 which included;
1. 4 food warmers worth US$200 2. 4 car tool boxes worth US$200 3. 1 radio cassette player worth US$100 4. 2 speaker worth US$200 5. 1 phone worth US$250 6. 1 camera worth US$200
The plaintiff then contracted the
defendant at its Dubai branch office to ship the said 5 vehicles (inclusive of
the suit motor vehicle
with assorted items inside it) from the U.A.E to Mombasa.
The defendant is alleged to have accepted the said 5 vehicles for
shipment.
However, only 4 vehicles minus the suit vehicle with goods arrived
at Mombasa. The plaintiff then made several demands at the defendant’s
Kampala office to account for the suit motor vehicle but the said motor vehicle
disappeared without trace. The defendants also did
not compensate the plaintiff
for the said loss.
The plaintiff filed a suit by plaint on the
2nd February 2005. Summons were issued to the defendant to file a
defence on the 3rd February 2005. The defendants did not file a
defence and on the 26th May 2005 the learned Registrar of this Court
entered interlocutory judgment against the defendant under order 9 rule 6 of the
civil
procedure rules as the plaintiff had filed an affidavit of service of the
said summons.
The suit was then set down for formal proof.
To focus the
formal proof procedure 3 issues were framed namely;
1. Whether there was a shipping contract between the plaintiff and the defendant? 2. Whether the defendant is liable for the motor vehicle which got lost in transit. 3. Whether the plaintiff is entitled to the remedies prayed for.
Issue No. 1: Whether there was a contract between the plaintiff and the defendant.
The plaintiff
(PW1) gave evidence that he bought the said motor vehicle from M/S World Auto
Motors in U.A.E at US$2200 as evidenced
by an original receipt Exh. P1 dated
3rd December, 2001. He then exhibited an invoice Exh. P2 from the
defendant dated 4th December 2001 for the shipment of the said 5
vehicles from U.A.E to Mombasa. The plaintiff also exhibited a letter Exh. P4
dated
7th January, 2002 where the Managing Director of the defendant
one Yusuf Manafa acknowledged that the suit motor vehicle was missing
and was
trying to trace it.
Clearly the evidence does show and I find that a
contract did exist between the plaintiff and defendant to ship the suit motor
vehicle
from the U.A.E to Mombasa -Kenya.
Issue No. 2: Whether the defendant is liable for the motor vehicle
which got lost in transit.
Following my finding on
issue No. 1 and in the absence of a written contract I find that the contract in
issue in one of bailment.
A contract of bailment according to the learned
author P.S. Atiyah in his book “The Sale of
Goods” 6 edition Pitman P7.
“...is a transaction
under which goods are delivered by one party (the bailor) to another (the
bailee) on terms which normally
require the bailee to hold the goods and
ultimately to redeliver them to the bailor or in accordance with his
directions...”
In this case a motor vehicle was delivered to
the defendant as bailee to ship it from U.A.E to Mombasa – Kenya. At
Mombasa
the defendant bailee was unable to redeliver the said motor vehicle to
the plaintiff as bailor.
I accordingly find that the defendant as bailee
is liable for the motor vehicle which got lost in
transit.
Issue No. 3: Whether the plaintiff is
entitled to the remedies prayed for.
The plaintiff prayed for 5
remedies as follows:-
Remedy 1: Recovery from the defendant of a Toyota Corona Premio worth US$2,200 or in the alternative, refund of the purchase price or its equivalent in Uganda Shillings.
Counsel for the
plaintiff referred me to the case of Agadi Didi –Vs- James
Namakaso Civil Suit No. 1230 of 1988,
Where Justice Ntabgoba
(Principal Judge as he then was) held that;
“...failure to file a defence raises a presumption or constructive admission, of the claim made in plaint and the story told by the plaintiff, in the absence of a defence to contradict it, must be accepted as the truth...”
Counsel then submitted that the plaintiff
is entitled to either a refund of the purchase price of the said vehicle or a
replacement.
I agree with the submission of counsel for the plaintiff and
indeed interlocutory Judgment has been passed in this regard. I accordingly
find that the plaintiff is entitled to refund of US$2,200 being the price of the
said motor vehicle or its equivalent in Uganda Shillings
at the ruling rate of
Bank of Uganda on the date of payment.
Remedy 2: General
damages for breach of contract.
Counsel for the plaintiff prays
for the sum of Ug.Shs.5,000,000/= under this head. He argues that his client
has spent a lot of time,
money and expressed a lot of inconvenience trying to
trace this car for 4 years. Counsel referred me to the case
of;
Robbialac Paints (U) Ltd. VKB construction Ltd. [1976] HCB
45.
Where SAIED Ag. Judge (as he then was) held,
“...that substantial physical inconvenience, or even inconvenience that is not strictly physical, and discomfort caused by a breach of contract will entitled the plaintiff to damages...”
No case was
cited to me on damages awarded in similar cases such as this. The plaintiff
testified that he is a businessman who imports
cars for use as special hire
taxis at Hotel Equatoria in Kampala.
However, no evidence was raised as to
the income was passed. Clearly the motor vehicle was for business and would
have earned some
income. Taking into account the vagaries of business and
taxation I find that damages at shs.1,00,000/= per year for 4 years is
fair. I
accordingly award Shs.4,000,000/= as general damages to the
plaintiff.
Remedy 3: Refund of missiong goods in the motor
vehicle valued at US$1150.
This is a claim for special
damages which must be claimed specially and strictly proved. Counsel for the
plaintiff however submitted
that strict proof need not always mean proof
supported by documentary evidence. In this regard he referred me to the case
of;
Sylvan Kakugu –Vs- Tropical Africa Bank Civil Suit
No. 1 of 2001.
In that case the Hon. Lady Justice Faith Mwandha
held,
“...in the case of Kyambadde –Vs- Mpigi District
Adm. [1983] HCB 44 and Senyakazane –Vs- Attorney General [1984[
HCB it was
held that special damages must be claimed specifically and strictly proved but
need not to be supported by documentary
evidence in all cases. It was further
held that where no evidence is led to prove special damages the claim should be
disallowed...
In the instant case the plaintiff specifically pleaded the special
damages and he proved them specifically...”
In other wards in
some cases special damages may be proved on the balance of
probability.
In this case there was no documentary evidence of these
items. The evidence of the plaintiff was that the items were packed in the
motor vehicle that went missing. The receipts are said have been packed in the
items in the motor vehicles for customs valuation
purposes.
It is fairly well
known that the business community used to pack items in vehicles they bought
from the U. A. E. until the revenue
authorities recently banned the practice.
It is perceiveable that this also was done in this case. The value is also
quite small.
The onus to rebut this evidence would have been on the defendant
which was not done. On the balance of probability I find that
the plaintiff has
proved the case for the items of US$1,150 and is entitled to a refund of the
said money.
Remedy 4: Interest on remedies 1 and
3.
Counsel for the plaintiff has prayed for interest at rate of
22% from the date of cause of action till payment in full.
I would
however grant a round figure of 20% from the date of cause of action until
payment in full.
Remedy 5: Costs of the suit.
The
plaintiff has prayed for costs of the suit. As a successful party I accordingly
also grant costs of this suit.
Geoffrey Kiryabwire
JUDGE
23/11/2005
SAFLII:
|
Terms of Use
|
Feedback
URL: http://www.saflii.org/ug/cases/UGCommC/2005/61.html
.RTF of original document