|
|
[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-0408 OF 2002
IMPACT SOLUTION LTD :::::::::::::::::::::::::
PLAINTIFF
VERSUS
1. ALARM GROUP LTD]
2. J. TUMWIJUKYE ]
::::::::::::::::::::::: DEFENDANTS
BEFORE: THE HONOURABLE MR. JUSTICE YOROKAMU
BAMWINE
J U D G M E N T:
The
Plaintiff’s claim against the Defendants jointly and severally is for
recovery of Ug. Shs.9,000,000- and costs of the suit.
The claim is based on an
advertisement contract by which the Defendants contracted the Plaintiff to
appear on the Plaintiff’s
celebrity shopper’s year planner. The
year planner was produced but the sum was allegedly not paid by the Defendants.
Hence
the suit.
The defence case is that there was no contract between
the Plaintiff and the Defendants. That the instructions were from a junior
officer who did not have authority. In the alternative, the Defendant argues
that if the order was made, the Defendants did not
approve the artwork and
design before publication. Hence the defence prayer that the suit be dismissed
with costs.
I have been asked to decide:
1. Whether the 2nd
Defendant’s instructions bound the 1st Defendant.
2. Whether
the 2nd Defendant can be held personally liable on the
order.
3. Whether the Defendants had to approve the art work and design
before publication.
4. If so, whether the advert published by the Plaintiff
was unilateral and substandard.
5. Remedies.
From the records, the
Defendants did participate in the proceedings up to the close of the
Plaintiff’s case. They did so through
their counsel. Court warned the
defence that if it did not produce its witnesses on the due date, hearing stood
to be closed under
0.15 r 4 of the Civil Procedure Rules. Come that date the
defence offered no defence and true to its prophecy the Court proceeded
to
determine the case on its merits in accordance with that law.
As to
whether the 2nd Defendant’s instructions bound the
1st Defendant, the evidence of PW1, Mirembe Julius, is that the
2nd Defendant was an employee of the 1st Defendant. There
is no evidence to the contrary. From the evidence of PW1, before the agreement
was signed, he had discussions
with the Managing Director of the 1st
Defendant. That having agreed in principle to enter into the arrangement, the
said Managing Director referred the matter to one
of his staff, the
2nd Defendant. It is the evidence of this witness that on the
strength of that interaction, an order was placed to that effect. This
evidence
has not been controverted by the defence. This is a civil suit. The standard
of proof is on a balance of probabilities.
A fact is said to be proved when the
Court is satisfied as to its truth. The evidence by which that result is
achieved is called
the proof. The general rule is that the burden of proof lies
on the party who asserts the affirmative of the issue or question in
dispute.
When that party adduces evidence sufficient to raise a presumption that what he
asserts is true, he is said to shift the
burden of proof: that is, his
allegation is presumed to be true, unless his opponent adduces evidence to rebut
the presumption.
These principles form the cornerstone on which our adversarial
system of adjucation rests.
In the instant case, it is noteworthy that
the reason advanced by the 1st Defendant for the non-payment, in as
far as it can be deciphered from its written statement of Defence is that the
2nd Defendant was not authorized to conclude the contract. The
Managing Director has not appeared as a witness to challenge the evidence
of PW1
Mirembe that he had discussions with him and that thereafter he, the Managing
Director, referred him to his subordinate, 2nd Defendant. In these
circumstances, Court has accepted PW1’s evidence as truthful. It is
evidence that shows that 2nd Defendant had power to conclude the deal
on behalf of his boss, and therefore the organization both of them worked for.
In such
a situation, the contract becomes that of the employer, known in the
field of agency as the principal. This does not render the
agent personally
liable because it was not personally his contract. The principle of law is that
he who does something through another
does it himself.
I have been
invited to find that the transaction in issue was authorized by the
1st Defendant’s top executive and therefore is binding on it.
That whether the 2nd Defendant had authority to sign advertisement
orders or not was an internal matter which was not brought to the
Plaintiff’s
attention. Going by the unchallenged evidence of PW1 on the
matter, Court is persuaded by that argument. It is evidence that proves
that
the 2nd Defendant’s instructions bound the 1st
Defendant and that the 2nd Defendant is not personally liable on the
order.
Accordingly, issue No. 1 is answered in the affirmative; and issue
No. 2 in the negative.
As to whether the Defendants had to approve the
art work and design before publication, the evidence of Mirembe Julius is that
the
same were approved by the Public Relations Department of the 1st
Defendant. This evidence has not been challenged.
I have also considered
the 1st Defendant’s averment in its Written Statement of
Defence that the Defendants didn’t approve the art work and design before
publication and that what the Plaintiff unilaterally published was erroneous and
sub-standard. Once again, the evidence of Mirembe
Julius that the Public
Relations Department of the 1st Defendant designed all that was
published has not been challenged. This Court accepts his evidence that all the
Plaintiff did was
to publish. Designing was done by officials of the
1st Defendant. 1st Defendant’s claim that the art
work was substandard has not been substantiated. In any case, even if this were
so, the Defendants
did not have to wait until the suit was filed to raise the
complaint. As soon as the demand for payment was made to the 1st
Defendant, its reaction would have been that the same was substandard and
therefore unacceptable. I have not seen any communication
from the Defendants,
other than the averment in the WSD, that the Plaintiff’s art work was
substandard. Court is of the view
that this was an afterthought.
Turning
now to the issue of damages, the Plaintiff has shown by documentary evidence and
oral testimony of PW1 that it forwarded a
bill of Shs.9,000,000- to the
Defendants. This amount has of course been disputed by the Defendants much as
they did not lead evidence
to justify the dispute.
I have considered the
fact that the Defendants designed the art work themselves and gave it to the
Plaintiffs to put on their chart.
From the evidence, especially P. Exh. 2, the
Defendant’s art piece occupied most space on the chart. Court has,
however,
not received any indication as to how much the other advertisers paid
for comparable space. I have considered PW1’s evidence
that the Plaintiff
offered a discount to the 1st Defendant and reduced the amount to
Shs.5,500,000- which the Defendants still refused to pay. The Plaintiff may
have reverted to
its earlier bill of Shs.9,000,000- upon the Defendants failing
to reciprocate the kind gesture. However, it shows also that the
Plaintiffs may
have invoiced the Defendants. Doing the best I can in the circumstances of this
case and taking into account the
Defendants failure to lead evidence in the
matter, I consider a sum of Shs.4,500,000- adequate as compensation for the
services rendered
by the Plaintiff to the 1st Defendant at the
2nd Defendant’s request. The sum of Shs.4,500,000- is
accordingly decreed to the Plaintiff.
As regards the claim for interest,
I notice that the original plaint did not have a claim for interest. The
amendment seeks interest
at the rate of 28% p.a from June 2002 till payment in
full. Interest, unless it is part of the contract terms, is a discretionary
remedy. The general rule is that interest can only be claimed if the claim is
based on an agreement for it in the document sued
upon or by statute.
In
the instant case, the interest claimed by the Plaintiff is not based on any
agreement. It is only based on the fact that the 1st Defendant has
kept the Plaintiff out of its money and that the said Defendant has been using
it. In these circumstances, interest
shall be awarded to the Plaintiff at a
commercial rate of 25% per annum. The suit was filed in July 2002. The plaint
was amended
almost 2 years later. Though dated 29/4/2004, it appears not to
have been filed till 29/4/2005, the date appearing on the Court
stamp. I shall
go by that date and order that interest be calculated from the date the claim
for it was made, that is, 29/4/2005,
till payment in full.
The Plaintiff
shall also have the costs of the suit, to attract interest at Court rate from
the date of taxation till payment in full.
I order so.
Yorokamu
Bamwine
J U D G E
3/4/2006
SAFLII:
|
Terms of Use
|
Feedback
URL: http://www.saflii.org/ug/cases/UGCommC/2006/10.html
.RTF of original document