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Last Updated: 25 May 2007
Quality Parts Co. Ltd V.Grace Busaasi t/a Grace
Simple Stores- HCT-00-CC-CS-0491-2006 [2007] UGCommC 11 (5 February
2007)
THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF
UGANDA AT KAMPALA
(COMMERCIAL COURT
DIVISION)
HCT-00-CC-CS-0491-2006
Quality Parts
Co. Ltd Plaintiff
Versus
Grace Busaasi
T/A Grace Simple
Stores Defendant
5th February
2007
BEFORE: THE HONOURABLE MR. JUSTICE YOROKAMU
BAMWINE
J U D G M E N T:
The
plaintiff’s claim is for recovery of the price of goods supplied to
the defendant and costs of the suit. It was brought under
0.36 r. 2
(a) (i) of the Civil Procedure Rules. In the course of time, the
defendant applied for leave to appear and defend which
was granted.
At the scheduling conference, the parties agreed that:
1. The defendant purchased TDR Force batteries from the plaintiff at a cost of Shs.42,906,000-.
2. Part payment of Shs.20,000,000- was effected leaving balance of Shs.22,906,000-.
3. Three cheques were issued by the defendant.
4. During the pendency of the suit, the defendant made another payment of Shs.2,906,000-.
The issues are:
1. Whether the defendant is indebted to the plaintiff in the sum of Shs.20,000,000-.
2. Whether the defendant’s counter claim against the plaintiff is valid.
3. Remedies, if any.
As to whether the defendant is indebted to the
plaintiff in the sum of Shs.20m, it is an admitted fact that the
defendant purchased
"TDR Force" Batteries from the
plaintiff. Both parties agree that it was 1018 cartons and 8 packets.
In the ordinary language,
TDR Force Batteries are dry cells. The sale
took place in May 2005. The purchase price was Shs.42,906,000-. It is
also an admitted
fact that some part payment in the sum of
Shs.20,000,000- was effected at the time of the sale and
Shs.2,906,000- during the pendency
of the suit. From the admitted
facts, therefore, out of the purchase price of Shs.42,906,000-,
Shs.22,906,000- has been paid leaving
a balance of Shs.20,000,000-.
Thus the supply of the goods is not in dispute and so is the
outstanding balance of Shs.20,000,000-.
The issue is whether the
plaintiff is entitled to the payment.
The defendant has
offered some explanation as to why she did not pay the balance.
According to her, the batteries sold to her turned
out to be
sub-standard, were not of merchantable quality and not fit for the
purpose. She claims further that as a result of the
aforesaid, there
was a general out-cry from their customers who made a report to
police which police raided her shop and impounded
cartons of
batteries now said to be in custody at CID Headquarters. Her evidence
is that the police contacted Uganda National Bureau
of Standards to
have the impounded batteries tested and the result was that they did
not meet the required standards for end point
voltage and they were
leaking. She claims that as a result of having been sold defective
products, she has suffered loss. Hence her
counter claim that even
the Shs.20m she had paid be refunded to her. The plaintiff disputes
all this.
I have very carefully addressed my mind to the able
arguments of both counsel. According to our law of evidence, a fact
is said to
be proved when the Court is satisfied as to its truth, and
the evidence by which that result is produced 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. It goes without saying
that the burden of proof in this case lay on the plaintiff to show
that this was a sale transaction in which it was entitled to the
purchase price.
According to the defendant, she is a business
woman based in Kikubo, Kampala. One day, the plaintiff’s Managing
Director one Martin
went to her shop. He was looking for business,
someone to buy TDR Force Batteries. He brought 1018 Cartons and some
loose packets.
In her own words, she bought the batteries but she did
not pay cash. She paid Shs.20m out of Shs.42,906,000- and for the
balance
she gave him three blank cheques. She just signed the
cheques, she did not insert names.From the defendant’s evidence,
the goods
were specific, ascertained, in a deliverable state and for
a stated price.
Section 19 of the Sale of Goods Act provides as
follows:
"19. Unless a different intention appears, the following are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer –
(a) where there is an unconditional contract for the sale of specific goods in a deliverable state, the property in the goods passes to the buyer when the contract is made, and it is immaterial whether the time of payment or the time of delivery or both are postponed."
This Court is bound to construe the agreements
of the parties as they are made. It is trite that the Courts will not
make contracts
for the parties but give effect to their clear
intentions. Learned counsel for the plaintiff has submitted that the
property in the
goods passed to the defendant in May 2005 though the
time of payment of the balance was postponed. From the evidence of
the parties,
I agree with that submission. The defendant has not
pleaded or given any reason that the goods were not in the same state
as when
she saw them on inspection. It is common knowledge that
batteries have a limited life span. With time, they expire and leak.
There
is no evidence that she even bothered to find out about the
expiry date. Since she inspected them before taking them on, the
presumption
is that she was satisfied with the condition in which
they were, that is of merchantable quality. In all these
circumstances, Court
is satisfied that the title in the goods passed
to the defendant when the contract was made.
It has been
submitted for the defendant that a total of 450 cartons were taken by
the police. There is no any documentary evidence
or report from the
police that this was so. All there is a document indicating that one
box was taken to Uganda National Bureau of
Standards by police on
26/9/2005. The document does not show that this was part of the goods
impounded from the defendant’s premises
to raise the inference that
it was part of the consignment she had purchased from the plaintiff.
The police who allegedly impounded
the goods did not appear as
witnesses in this case. Therefore, it is any one’s guess as to
where the police got this one box from.
There is no evidence that the
defendant was the sole seller of TDR Force Batteries in Kampala at
the time.
The defendant also contended that there was an
outcry from customers who made a report to police. No such customer
appeared as a witness
herein. And as I have already said, although it
is claimed that police raided her shop and impounded cartons of
batteries which are
in custody at CID Headquarters, there was no
confirmation of this story by the police themselves or the reason for
the impounding.
The defence evidence is also that the police
contacted UNBS to have the impounded batteries tested and that the
result was that they
did not meet the required standards for end
voltage. From the evidence, all this is a heap of hearsay evidence in
the absence of
any oral testimony by the police or a UNBS official to
that effect. In any case, the documentary evidence from the UNBS
which the
Court has seen is itself conflicting. The import clearance
certificate No. 27969 dated 21/2/2005 shows that batteries sold by
the
plaintiff to the defendant had been inspected and cleared. These
were the same goods sold to the defendant in May 2005. And then
it
claimed in a certificate of analysis dated 29/9/2005 that the
batteries tested did not meet the requirements of the standard for
end point voltage. One wonders whether these were the same batteries
earlier on tested by the same body and cleared for the market.
In the
absence of any evidence from UNBS to substantiate their two
conflicting reports, Court is unable to say that they (reports)
refer
to the same goods. The defendant also contended that some other boxes
of TDR Force batteries were impounded by Uganda Revenue
Authority
(URA) at Karuma as they were being returned to Kampala. Court has
been told that the reason for impounding them was that
they were
being suspected to be coming from Sudan. The defendant wants the
plaintiff to foot that loss as well as if the parties
had agreed as
to where the goods sold to the defendant would be taken for sale to
raise the inference that even after the sale to
the defendant, where
the defendant sold them in turn remained the responsibility of the
plaintiff. I do not think that this is a
serious business
argument.
From all the above, Court agrees with the argument
of learned counsel for the plaintiff that if the goods were indeed
unfit and/or
expired, the defendant would have naturally rejected
them and sent them back to the seller. She didn’t. There is no
evidence of
how much she has genuinely pocketed from that transaction
and how much she has lost. And even what she lost, if any, there is
no
evidence to warrant blaming it on the plaintiff. I would agree
with the plaintiff’s submission that the counterclaim is an
afterthought
designed to avoid paying the price of goods supplied. I
find that the property in the goods passed to the defendant at the
time the
contract was made. It is immaterial that the time of payment
was post poned or that the cheque issue to the plaintiff was made
payable
to Midland Forex Bureau Ltd. The long and short of the
evidence on record is that the plaintiff sold goods to the defendant
worth
Shs.42,906,000- out of which it has only been paid
Shs.22,906,000-. Accordingly, the defendant is indebted to the
plaintiff in the
sum of Shs.20,000,000- being the balance on the
purchase price. For reasons stated above, the defendant’s
counterclaim against
the plaintiff is untenable. I would dismiss it
with costs to the plaintiff and I do so.
This in effect
disposes of issues (1) and (2).
As to whether the plaintiff is
entitled to the reliefs sought, its first prayer is for the recovery
of Shs.20m. Under S.48 of the
Sale of Goods Act, where under a
contract of sale the property in the goods has passed to the buyer
and the buyer wrongfully neglects
or refuses to pay for the goods
according to the terms of the contract, the seller may maintain an
action against him/her for the
price of the goods. In my view, by
giving the plaintiff post dated cheques, the defendant committed
herself to pay for the goods
supplied to her by the indicated dates.
The plaintiff has prayed that it be granted payment in the sum of
Shs.20,000,000- The prayer
is allowed.
The plaintiff has also
prayed for general damages of Shs.5,000,000-. There is no prayer for
general damages in the plaint. I will
not award any.
It has
also prayed for interest at a rate of 20% p.a on special damages from
the time of filing the suit till payment in full. Again
there is no
prayer for interest in the plaint. However, in a case of this nature,
interest is a discretionary remedy. In equity,
interest is awarded
whenever a wrong doer deprives the other of money for which he/she
needs to use in the business. It is plain
herein that the plaintiff
ought to be compensated for the loss there by occasioned to its
business. It is not enough that the money
withheld from it by the
defendant is by these presents to be replaced. For this reason, the
plaintiff shall be compensated by an
award of interest at the
commercial rate of 20% per annum from the date of filing the suit
till payment in full.
The plaintiff shall also have the costs
of the suit, in the counter claim and main suit.
In the
finalresult, judgment is entered for the plaintiff against the
defendant in the following terms:
i.Special damages: Shs.20,000,000- (twenty million only).
ii.Interest on (i) above at the rate of 20% p.a from the date of filing the suit till payment in full.
iii.Costs of the counter claim and the main suit.
Yorokamu Bamwine
J U D G
E
5/2/2007
Order: This judgment shall be delivered
on my behalf by the Registrar of this Court on the due date.
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