Adam Osman TA Boli- Mog v Uganda Securiko Limited (Civil Appeal 2 of 1998) [1998] UGCA 30 (26 October 1998)

# THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

G. M. OKELLO J. A; S. G. ENGWAU J. A; A. TWINOMUJUNI J. A CORAM:

# CIVIL APPEAL NO. 2 OF 1998

ADAM OSMAN t/a BOLI-MOG:..................... APPELLANT

#### **VERSUS**

UGANDA SECURIKO LTD.:..................... RESPONDENT

(An appeal from the judgment of the High Court (Lugayizi. J.) dated 10 July 1997 in Civil Suit No. 137 of 1997)

## JUDGEMENT OF TWINOMUJUNI J. A.

The appellant appeals from the decision of the High Court dated 10 July 1997 in which that court dismissed his suit with costs.

The facts which gave rise to the suit are briefly as follows:-

On 6 March 1996, the appellant entered into a contract with the respondent whereby for a consideration of shs. $172,000/$ = payable in advance, the respondent agreed to provide a night security guard at the premises owned by the appellant. The order sheet which was signed by representatives of both companies provides in part:-

| Date: | 6/3/96 | |-------------|------------------------| | Ordered by: | Mr. Ali Farah | | Occupier: | Boli-Mog Box 30429 Kla | | Company: | do - Tel.25149 |

Accounts Eo: Situat ion : Pfot No. Road : Startinq date: Boli-Mog Enterprises shop 288 william Stsreet 5/3/95 ro ... . .vFN SBecial noEes: One night. ? guard at tshe raEe of sha L72,OOO/= per month payable in advance , "

The appellants claj.med that by this agreement the respondent. agreed to guard their store siEuated at P1ot. No. l-2/L4 Bombo Road. On 7 April 1995 thats sEore was broken into and a lot of merchandise stolen. One Sekito Kabule an employee of t.he respondent and several other peopLe were subsequent.ly arrest.ed and prosecuted for the burglary and Eheft of the property. The appellant then filed t.his suit. Eo recover the value of the sEolen goods, general damages for breach of contract, interest. on decreEal amount and Che cosEs of the suit.

In Eheir defence lhe respondenEs contended that they never cont.ractsed to guard a sEore aE PloE 12/14 Bombo Road but a shop at plot No.288 WiLLiam StreeE as clearly indicated on the

document signed by both parties.

Secondly they contended thats at the time of the alleged sEore breaking on 7 April l-995, the contract signed on 5 March 1996 had lapsed and there was no more contract beE.ween t.hem. The learned trial judge accepted lhe case for Ehe respondent and dismissed the suit. against. him and awarded him t.he costs of the suit. Hence this appeal .

The appellant relies on three grounds of appeal namely: -

- ThaE the learned Erial judge erred in law and fact in holding EhaE Ehere was no contract beEween Ehe appell-ant and the respondent in respect of the sE.ore on Bombo Road. 1 - 2 That. the had the Iearned j udge contract between the expired. erred in Law in holding t.haE appellant and the respondent - That the learned judge erred in 1aw in holding that the appellant was not entitled to remedies sought. 3

Mr. Michael Akampurira argued this appeal on behalf of the appellant. He submit. Eed on the first ground of appeal t.hat the agreement signed by bot.h part.ies on 5/3/96 did not stsatse the place which was suppoaed tso be guarded. That all it said was E.he

address of t.he appellant on william Street where invoices of claims by the respondent woufd be sent. He argued that failure to staEe where Ehe guard would be was a defect and the trial judge should have examined extsrinsic evidence as provided for in S.92 of the Evidence which exErinsic evidence would explain the defect. He relied on the cases of Visram and Ka rs am Rhatt t1955.] . A. 789 and Choitram vs Lazar I L95718. A.157.

on the second ground of appeal Mr. Akampurira submitEed that the contract \^ras concluded on 5 March l-99 6 He submitEed that the documenE. was silents on the duration of the contracts, but argued tshat since the theft took place on the night of 5 april 1996, whether one counted a month of 30 days or 31 days. tshe one month contsract was stil1 in force.

Mr. Akampurira's final argument waa thats since E'he respondenE deployed a security guard aE the premiseE of the appellant, he was estopped from claiming tshaE the conEract of service had expired. Mr. Akampurira invited Ehis courE to hold that. : -

- There was a val j,d contract. bet.ween Ehe parties at the time of Eheft. I - 2. The said contract was breached by Ehe respondenE. - <sup>3</sup> The his respondenE was vicariously liabJ.e for the acEs of servant.

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4. A11 damages specifically proved should be awarded

In reply Mr. Mugisha Pat.rick for tshe respondent argued thaE both parcies tso the contracE agreed tshat aII the terms of the conEract signed on 5/3/96 were incorporated in one single documenE. The documents dj-d not. provide that lhe place to be guarded was plot 12/14 Bombo Road. It. provided tha! Ehe place t.o be guarded as plot No. 288 WilLiam St.reet. He submiEted Ehat the word "situation" meanE the place to be guarded. He argued that since that document which was exhibit D1 in the trial court was very clear and unambiguous, there was no need to adduce or rely on any other evidence to find its exacE meaning.

On wheEher on tshe nighE of Eheft, the conEracE was sE.i11 subsisEing or not, Mr. Mugisha argued that though Ehe duraEion of the conEract t as noE mentioned, yet it i.s cl-ear tha! Ehe contract. was to be on a monthly basis provided payment was done in advance. He submitEed thaE since the contract began on 6/3/95, given a mont.h of 31 days, the contract expired on the morning ot e /+/s\$ Since the thefE took place during Ehe night of 5 aprl1, and the contract had not yet been renewed, the respondent had no duty to guard the place that night.

on tshe quesEion of estoppel, Mr. Mugisha submitted that iE did not arise in this case because there was no admissi.on on Ehe part of Ehe respondent that he deployed any guard on Bombo Road on the night of Ehe t.hefE.

Mr. Mugisha then invited this court to hold that the respondent never entered into any contract to guard plot No.12/14 bombo Road. He further invited us to hold that on the 6 April, 1996, there was no contract of any kind between these parties. He prayed that this appeal be dismissed with costs.

Turning to the merits of the appeal I wish to consider the first ground of appeal that the learned trial judge erred in holding that there was no contract in respect of the store on Bombo road. In my judgment, exhibit D1, the contract which was signed by both parties is very clear. It was agreed that starting on the night of 6 March 1998 the respondent would provide a guard at the premises of the appellant Boli-Mog Enterprises, of P. O. Box 30429 Kampala $\mathcal{F}$ el No. 251419. Accounts would be sent to Boli-Mog Enterprises.

Mr. akampurira argued that the words which follow:-

"Situation: Shop Plot No. 288 William Street" Road:

refer to the address of the appellant where the accounts were to be sent. Mr. Mugisha argued that the word "situation" was a description of the nature of place to be guarded. In my view I do not think that the word "situation" in exhibit D1 could be referring to the place where accounts would be sent. After all the name of the company and its address are already provided in front of the words "occupier" and "company". I would agree with counsel for the respondent that the word "situation: Shop" was a description of the premises to be guarded by the respondent.

$\mathsf{6}$ when you add on this the evidence which was adduced on this maEter by the respondent and which the learned trial judge found credible and accepted, I remain wit.hout any doubt in my mind that t.he contract provided thaE a shop situat.ed at plot No. 288 Wil-liam Street was the premises to be guarded by the respondent. In any case, a part from Mr. Akampurira's cl-aim at tshe bar thaE the words fisit.uation: shop" referred to Ehe address where accounts were t.o be sent, tshere is no credible evidence on oath to Ehat effecE. There was Eherefore no need for the learned trial judge to Look else where in order to i,nterpret exhibit Dl\_ which in my judgment is clear enough. The first ground of appeal fai 1s .

The second ground of appeal was tshat the learned t.riaI judge erred Eo hold EhaE Ehe contract between the parEies had expired on t.he night the theft took place. Again I find the words of t.he contracE in exhibiE D1 very c1ear. It provided thaE consideratsion would be shs. l72,5OO/= per month payabLe j.n advance. Although the duration of the contract was not stat.ed, buE there is no doubt whatsoever that t.he contract. could be renewed on a monthly basis provided payment was made in advance. Now even if you count the Iongest month of 3l- days to be t.he montsh menEioned in Ehe conEracE, from the 5 March l-995, t.he contract. expj-red on the night of 5 April 1996. On the nighE of 5 April when t.he theft occurred, there was no conEract of any kind between these parEies. The second ground of appeal fails as we11.

On the strength of my finding on the 1st and 2nd grounds of appeal, this appeal cannot succeed. I would uphold the judgment of the trial court and dismiss the appeal with costs here and in the court below to the respondent.

Dated at Kampala this $26$ day of O. U. 1998.

un Twinomujuni $\mathbf{A}$ OF APPEAL JUSTICE

#### THE REPUBLIC OF UGANDA

#### IN THE COURT OF APPEAL OF UGANDA

## AT KAMPALA

G. M. OKELLO, JA., S. G. ENGWAU, JA., A. TWINOMUJUNI, JA. **CORAM:**

# CIVIL APPEAL NO. 2/98

#### Between

ADAM OSMAN t/a BOLI-MOG ................... APPELLANT

$-$ AND $-$

<table><tbody>UGANDA SECURIKO LTD.................................. RESPONDENT

### JUDGMENT OF G. M. OKELLO, J. A.

I have had the advantage of reading in draft the judgment prepared by Twinomujuni, J. A. For the reasons given by my brethren, I agree that the appeal must be dismissed.

The Order sheet, Exh. D1, which is the contract document which was signed by the representatives of both parties is clear and unambiguous. It is clear from it (document) that the place referred to therein as "situation" was the place to be guarded by the respondent's guards. That was a shop on Plot No. 288 William Street not a store on Plot 12/14 Bombo Road. There was therefore no necessity to explain that document as Mr. Akampurira argued.

The contract was a monthly contract subject to the contract money being paid in advance. The contract began on $6/3/96$ . The first one month duration expired on $5/4/96$ . The burglary and theft took place in another place and on $6/4/96$ . That should have been the beginning of the second month contract. But the evidence on record shows that no advance payment for the second month contract had been made. So even if the store burgled was the place contracted to be guarded, no contract had existed between the parties when the burglary and theft took place. The respondent therefore could not have been liable under a nonexistent contract.

As Engwau, JA. also agrees, the appeal is dismissed on the terms proposed by Twinomujuni, JA.

Dated at Kampala this $26$ MK day of $0$ Utalse. 1998.

**OKELLO** $G. M.$

JUSTICE OF APPEAL

## THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

G. M. OKELLO, J. A.; S. G. ENGWAU, J. A. AND CORAM: A. TWINOMUJUNI, J. A.

#### CIVIL APPEAL NO.2 OF 1998

ADAM OSMAN t/a BOLI-MOG ....................................

### **VERSUS**

UGANDA SECURIKO LTD. ..................................

(Appeal arising from the judgment of the High Court (Lugayizi J.) dated 10th July, 1997 in H. C. C. S. No.137 of 1997).

JUDGMENT OF ENGWAU, JA.

$\ldots \ldots$

I have had the benefit of reading the judgment of Twinomujuni, J. A. in draft and I agree with it. I would dismiss the appeal with costs here and in the court below.

Dated at Kampala this ....................................

Jimman S. G. Engwau JUSTICE OF APPEAL