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THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF
UGANDA AT KAMPALA
(COMMERCIAL COURT
DIVISION)
HCT-00-CC-CS-0269 OF 2005
ANNETTE TUMUSIIME :::::::::::::::::::::::
PLAINTIFF
VERSUS
1. LUIS GUGONES ARANEL ]
2. LOBO BUILDERS (U) LTD ]
:::::::::::::::: DEFENDANTS
BEFORE: THE
HONOURABLE MR. JUSTICE YOROKAMU BAMWINE
J U D G M E N
T:
The Plaintiff is a business woman. The first Defendant is a
Filipino with a residence status in Uganda and the Managing Director
of the
second Defendant, a construction firm. The Plaintiff’s action is for
recovery of Shs.18,192,000-, interest at the rate
of 22% being monies advanced
to the Defendants for the construction of Plaintiff’s house at Lweza,
Kajansi, Wakiso District,
less the estimated value of the shell hurriedly put up
by the Defendants, general damages for breach of contract and fraudulent
misrepresentation,
punitive and exemplary damages, an order of accounts and
costs.
The Defendants had services of a lawyer, one Mr. Munyani.
However, as soon as the case was fixed for a scheduling conference, the
lawyer
disappeared. The first Defendant decided to go it alone for sometime until he
also disappeared. In the end, Court decided
to dispose of the case in
accordance with 0.15 r 4 of the Civil Procedure Rules. Hence this
Judgment.
Under the above law, where any party to the suit to whom time
has been granted fails to produce his evidence, or to cause the attendance
of
his witness, or to perform any other act necessary to the further progress of
the suit, for which time has been allowed, the Court
may, notwithstanding such
default, proceed to decide the suit forthwith.
Before the Defendants
disappeared, the parties had agreed:
1. That there was a contract between the
Plaintiff and Defendant whereby the Defendant would build a house for the
Plaintiff.
2. That the 1st Defendant is the Managing Director of
the 2nd Defendant.
3. That the contract was between the Plaintiff
and the 2 Defendants.
4. That the Plaintiff has so far disbursed Shs.36m to
the Defendants.
ISSUES:
1. Whether the Defendants are guilty of
any breach in the performance of the contract.
2. Whether the Plaintiff is
entitled to the reliefs sought.
First, whether the Defendants are guilty
of breach of contract in their performance thereof.
I have considered the
evidence of the Plaintiff, PW1 Annette Tumusiime. It is that on 13/7/2004, the
1st Defendant was introduced to her as a skilled constructor who
would assist her build her house. She gave him the specifications.
Consequently, the 1st Defendant and the Plaintiff discussed the way
forward. They agreed that the Defendants construct for her a three bed roomed
house,
including a store, without a garage, for a consideration of
Shs.36,000,000-. The work was to be accomplished in 6 months. PW1 then
partly
paid the Defendants in the sum of Shs.18m initially. She took the
1st Defendant to the plot and work commenced. She had an approved
plan. Along the way the Plaintiff made further payments which added
up to
another Shs.18m. However, it is her evidence that after 2 months, she realised
that the Defendants could not do what they
had contracted to do. In her
assessment, the 1st Defendant had erected a shoddy structure. She
took issue with it and as time went by, the 1st Defendant started
dodging her. He shifted from his residence and switched off her phone. In the
end, she decided to seek a judicial
remedy on the matter.
PW2 Engineer
Mujugumbya inspected the structure and found that it had not been constructed
according to the Bills of quantities, P.
Exh. 11 as well as the approved plan,
P. Exh. 111. He summed it up as evidence of poor workmanship where the walls
had several cracks,
and the roof had already started sagging due to heavy weight
of the tiles which could not be supported by the thin walls.
Another
witness, PW3 Eddie Nsamba Gayiiya, testified to the same effect. He inspected
the property on 22/5/2005 and was of the view,
as PW2, that the Defendant had
done shoddy work. He too noted that the walls had not been structured the way
the approved plan required:
they are too thin to carry tiles. These two experts
were of the view that the structure would be unfit for human habitation unless
overhauled.
This is a civil case. 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 the 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. In other words, his allegation is
presumed to be true, unless his opponent adduces evidence to rebut the
presumption. In the instant case, the 1st Defendant held himself out
as a competent constructor. The Plaintiff entrusted the construction of her
house to him and his company,
the 2nd Defendant. The burden lies on
her to prove on a balance of probabilities that the Defendants did not do what
they were contracted
to do. She has given evidence that shows that the
Defendants did substandard work. Her evidence shifts the burden of proof to the
Defendants to show, first, that they were not in breach of any duty; and second,
that the damage suffered by the Plaintiff did not
result from the breach. A
constructor owes a duty to his client to observe precautions which are normal in
the course of such construction.
From the evidence, the Defendants failed to
observe these precautions. The performance of the terms of the contract in
terms of
time and the quality of work fell far short of the Plaintiff’s
expectations. The evidence of the experts confirms it.
In these
circumstances, Court holds that the Defendants’ poor workmanship of the
construction work on the Plaintiff’s
house amounted to a breach of
contract on the part of the Defendants. I would answer the first issue in the
affirmative and I do
so.
Second, whether the Plaintiff is entitled to the
reliefs sought.
The law is that when a party fails to do what he/she
agreed to do or does not do it properly, he/she is said to be in breach of the
contract. He will be liable to pay damages to the aggrieved party to compensate
him for any loss occasioned. The damages which
the other party ought to receive
in respect of such a breach should be such as may fairly and reasonably be
considered as either
arising naturally, that is, according to the usual course
of things, from such a breach itself or such as may reasonably be supposed
to
have been in contemplation of the parties at the time they made the contract as
a probable result of its breach.
PW2 Paul Mujugumbya testified that
when he compared the Bills of Quantities, P. Exh. 11, and the work done, he was
of the opinion
that the work if properly done was worth Shs.22m. In view of the
poor workmanship he had talked about, he reduced this by a factor
of 20% and it
came to some Shs.17m. This witness is a lecturer at Makerere University and a
practicing consultant Engineer. His
co-witness, PW3 Eddie Nsamba –
Gayiiya, an equally experienced valuer of repute was of the considered opinion
that the value
of the building on the basis of the accomplished works is in the
region of Shs.22m. Unlike his counterpart, PW2, he did not apply
any factor to
reduce the value.
I have considered the first Defendant’s assertion
at the scheduling conference that he completed the work, except the ceiling
which if he was given Shs.4,200,000- he would be able to complete it. As fate
would have it, he disappeared before giving his own
evidence or that of an
expert to support his version of the story.
I have also considered the
visual appearance of the house in photographic form; and the fact that the
Plaintiff should have been there
to see what was going on instead of raising
complaints after the event. Finally on this point, I have considered the fact
that the
experts’ findings are at best their considered opinions which are
not binding on this Court but certainly offer useful guidance
to
Court.
Taking into account all the above factors and doing the best I
can, I have come to the conclusion that the value of the building on
the basis
of the accomplished works is in the region of Shs.26m. In view of the
Plaintiff’s payment up front in the sum of
Shs.36m, Court is of the view
that an order to the Defendants, jointly and severally, to refund
Shs.10,000,000- (ten million only)
to the Plaintiff would meet the ends of
justice. I order so.
The Plaintiff in her evidence testified that she
had paid the Engineer (PW2) and the valuer (PW3) a sum of Shs.600,000- for their
services. Court is satisfied that she incurred that expense. A sum of
Shs.600,000- (six hundred thousand only) shall therefore
be refunded to her by
the Defendants.
The Plaintiff further testified that she wasted a lot of
time tracing the 1st Defendant; that she expected that by end of
January 2005 she would have started letting out the house to tenants at a rate
of Shs.400,000-
per month. I found her claim of Shs.5,600,000- in
counsel’s submissions highly speculative. In any case, there was no
prayer
for it in the plaint. I’m inclined not to award it and I
don’t.
As regards general damages, these are within the
Court’s discretion. It is that sum of money which would put the party who
has been injured, or who has suffered any injury, financial or otherwise, in the
same position as he would have been in if he had
not sustained the wrong for
which he is now getting his compensation or reparation. General damages are not
easily quantifiable
in money terms. Court decides how much the injured person
deserves in compensation for his pain and suffering, which the Court assumes
the
Plaintiff did sustain.
Counsel did not suggest to Court any figure he
would consider to be appropriate for the loss suffered by the Plaintiff. Court
is
of course cutely aware that damages are intended as compensation for the
Plaintiff’s loss and not a punishment to the Defendants.
Taking into
account all the circumstances of the case again and doing the best I can, I
consider a sum of Shs.2,000,000- (two million
only) adequate compensation for
the said breach. It is awarded to her.
In the plaint, the Plaintiff had
prayed for punitive and exemplary damages, an order of account and general
damages for fraudulent
misrepresentation. Counsel did not address Court on
these prayers in the Plaintiff’s final submissions. The presumption is
that he abandoned them. Considering the over all justice in this case, Court is
of the view that this was a well thought out course
to take.
Finally, the
Plaintiff has prayed for interest of 22% from the date of filing the suit till
payment in full and costs of the suit.
An award of interest is
discretionary. Damages had to be assessed by Court. The right to those
damages does not normally arise
until they are assessed. In such event,
interest should only be given from the date of Judgment. She is entitled to the
rate prayed
for (that is, 22% per annum) from the date of Judgment till payment
in full.
The Plaintiff shall also have the costs of the suit.
I so
order.
In the final result, Judgment is entered for the Plaintiff against
the Defendant in the following terms:
a. Special damages: Shs.10,600,000-
(ten million six hundred thousand only).
b. General damages: Shs.2,000,000-
(two million only).
c. Interest on (a) and (b) at the rate of 22% per annum
from the date of Judgment till payment in full.
(d). Taxed costs of the
suit.
Yorokamu Bamwine
J U D G
E
18/04/2006
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