Annette Tumusiime v Luis Gugones Aranel and Anor - (HCT-00-CC-CS 269 of 2005) [2006] UGCommC 11 (17 April 2006)

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)}}{\*\pnseclvl9\pnlcrm\pnstart1\pnindent720\pnhang {\pntxtb (}{\pntxta )}}\pard\plain \ql \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid83846 \fs24\lang1033\langfe1033\cgrid\langnp1033\langfenp1033 {\b\f36\fs28\insrsid83846 \par }\pard \qc \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid16068410 {\b\f36\fs28\insrsid16068410 THE REPUBLIC OF UGANDA}{\b\f36\fs28\insrsid1136281 \par }{\b\f36\fs28\insrsid16068410 \par IN THE HIGH COURT OF UGANDA AT KAMPALA \par (COMMERCIAL }{\b\f36\fs28\insrsid2766882 COURT }{\b\f36\fs28\insrsid16068410 DIVISION) \par \par }{\b\f36\fs28\insrsid2766882 HCT-00-CC-CS-0}{\b\f36\fs28\insrsid16068410 269 OF 2005 \par }\pard \qj \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid16068410 {\b\f36\fs28\insrsid16068410 \par ANNETTE TUMUSIIME ::::::::::::::::::::::: PLAINTIFF \par \par }\pard \qc \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid11424485 {\b\f36\fs28\insrsid16068410 VERSUS \par }\pard \qj \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid16068410 {\b\f36\fs28\insrsid16068410 \par 1. LUIS GUGONES ARANEL ] \par 2. LOBO BUILDERS (U) LTD ] :::::::::::::::: DEFENDANTS \par \par \par BEFORE: }{\b\f36\fs28\ul\insrsid16068410\charrsid11424485 THE HONOURABLE MR. JUSTICE YOROKAMU BAMWINE \par \par }{\b\f36\fs28\ul\insrsid16068410\charrsid1391956 J U D G M E N T}{\b\f36\fs28\insrsid16068410 : \par \par }\pard \qj \li0\ri0\sl480\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid7039965 {\f36\insrsid7039965 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\rquote 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\rquote s house at Lweza, Kajansi, Wakiso District, les s the estimated value of the shell hurriedly put up by the Defendants,}{\f36\insrsid8928047 general damages for breach of contract and fraudulent misrepresentation, punitive and exemplary damages, an order of accounts and costs.}{\f36\insrsid6257673 }{ \f36\insrsid16068410 \par }{\f36\insrsid6257673 \par The Defendants had services of a lawyer, one M r. 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 wi th 0.15 r 4 of the Civil Procedure Rules. Hence this Judgment. \par \par 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 t o the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith. \par }{\f36\insrsid281262 \par Before the Defendants disappeared, the parties had agreed: \par }{\f36\insrsid12008907 1.\tab That there was a contract between the Plaintiff and Defendant whereby the \tab Defendant would build a house for the Plaintiff. \par 2.\tab That the 1}{\f36\super\insrsid12008907\charrsid12008907 st}{\f36\insrsid12008907 Defendant is the Managing Director of the 2}{\f36\super\insrsid12008907\charrsid12008907 nd}{\f36\insrsid12008907 Defendant. \par 3.\tab That the contract was between the Plaintiff and the 2 Defendants. \par 4.\tab That the Plaintiff has so far disbursed Shs.36m to the Defendants. \par \par }{\f36\ul\insrsid12008907\charrsid16405118 ISSUES: \par }{\f36\insrsid12008907 1.\tab Whether the Defendants are guilty of any breach in the performance of the \tab contract. \par 2.\tab Whether the Plaintiff is entitled to the reliefs sought. \par \par First, whether the Defendants are guilty of breach of contract in their performance thereof. \par I have considered the evidence of the Plaintiff, PW1 Annette Tumusiime. It is that on 13/7/2004, the 1}{\f36\super\insrsid12008907\charrsid12008907 st}{\f36\insrsid12008907 Defendant was introduced to her as a skilled constructor who would assist her build her house. She gave him the specifications. Consequently, the 1}{\f36\super\insrsid12008907\charrsid12008907 st}{\f36\insrsid12008907 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 w as to be accomplished in 6 months. PW1 then partly paid the Defendants in the sum of Shs.18m initially. She took the 1}{\f36\super\insrsid12008907\charrsid12008907 st}{\f36\insrsid12008907 Defendant to the plot and work commenced. She had an approved plan. Along the way}{\f36\insrsid12982785 the Plaintiff made further payments which }{\f36\insrsid5381557 added up}{\f36\insrsid12982785 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 }{\f36\insrsid1382605 1}{\f36\super\insrsid1382605\charrsid1382605 st}{ \f36\insrsid1382605 Defendant had erected a shoddy structure. She took issue with it and as time went by, the 1}{\f36\super\insrsid1382605\charrsid1382605 st}{\f36\insrsid1382605 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.}{\f36\insrsid12008907 \par }{\f36\insrsid13659124 \par PW2 Engineer Mujugumb}{\f36\insrsid5381557 y}{\f36\insrsid13659124 a inspected the structure and found that it had not been constructed according to the Bills of quantities, P. Exh. 11 as well}{\f36\insrsid7032590 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.}{ \f36\insrsid13659124 \par }{\f36\insrsid7032590 \par Another witness, PW3 Eddie Nsamba Gayii}{\f36\insrsid5381557 y}{\f36\insrsid7032590 a, testified to the same effect. He inspected the property on 22/5/2005 and was of the view, as PW2}{\f36\insrsid5381557 ,}{\f36\insrsid7032590 that the Defendant}{ \f36\insrsid4800955 had done shoddy work. He too noted that t he 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.}{\f36\insrsid7032590 \par }{\f36\insrsid4800955 \par This is a civil case. The standard of pro of 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 asse rts 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}{\f36\insrsid4010608 of proof. In other words, his allegation}{ \f36\insrsid4093475 is presumed to be true, unless his opponent adduces evidence to rebut the presumption.}{\f36\insrsid883075 In the instant case, the 1}{\f36\super\insrsid883075\charrsid883075 st}{\f36\insrsid883075 Defendant held himself out as a competent constructor. The Plaintiff entrusted the construction of her house to him and his company, the 2}{\f36\super\insrsid883075\charrsid883075 nd}{\f36\insrsid883075 Defendant. The burden lie s 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 ,}{\f36\insrsid14824456 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 }{ \f36\insrsid3891454 course}{\f36\insrsid14824456 of such construction. From the evidence, the Defendants failed to observe these precautions}{\f36\insrsid2782482 . The performance of the terms of the contract in terms of time and the quality of work fell far short of the Plaintiff\rquote s expectations. The evidence of the experts confirms it. }{\f36\insrsid4800955 \par }{\f36\insrsid2782482 \par In these circumstances, Court holds that the Defendants\rquote poor workmanship of the construction work on the Plaintiff\rquote 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. \par }{\f36\insrsid3307625 \par Second, whether the Plaintiff is entitled to the reliefs sought. \par \par The law is that when a party fails to do what he/she agreed t}{\f36\insrsid1863576 o 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.}{\f36\insrsid4602061 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. }{\f36\insrsid3307625 \par }{\f36\insrsid4602061 \par PW2 Paul Mujugumbya testified that when he compared the Bills of Quanti ties, 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 \endash 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.}{\f36\insrsid490043 Unlike}{\f36\insrsid9201481 his counterpart, PW2, he did not apply any factor to reduce the value.}{\f36\insrsid4602061 \par }{\f36\insrsid9201481 \par I have considered the first Defendant\rquote 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 }{ \f36\insrsid3891454 giving his own}{\f36\insrsid9201481 evidence }{\f36\insrsid3891454 or that }{\f36\insrsid9201481 of an expert to support his version of the story. \par \par I have also considered}{\f36\insrsid11688151 the visual appearance of the house in photographic form; }{\f36\insrsid11424485 and}{\f36\insrsid11688151 the f act 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}{\f36\insrsid6619893 the fact that the experts\rquote findings are at best their considered opinions which are not binding on this Court but certainly offer useful guidance to Court.}{\f36\insrsid9201481 \par }{\f36\insrsid13184433 \par 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\rquote 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. \par }{\f36\insrsid3152612 \par 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-}{\f36\insrsid9863046 (six hundred thousand only) shall therefore be refunded to her by the Defendants.}{\f36\insrsid3152612 \par }{\f36\insrsid9863046 \par The Plaintiff further testified that she wasted a lot of time tracing the 1}{\f36\super\insrsid9863046\charrsid9863046 st}{\f36\insrsid9863046 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\rquote s submissions highly speculative. In any case, there was no prayer for it in the plaint. I\rquote m inclined not to award it and I don\rquote t. \par }{\f36\insrsid12526959 \par As regards general damages, these are within the Court\rquote s disc retion. 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 compen sation 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. \par }{\f36\insrsid13524231 \par Counsel did not suggest}{\f36\insrsid4739441 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\rquote s loss and not a punishment to the Defendants.}{\f36\insrsid14551590 Taking into account a ll 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.}{\f36\insrsid13524231 \par }{\f36\insrsid3081764 \par 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\rquote 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. \par \par 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. \par \par An award of interest is discretionary. Damages had to be assessed by Court. The right}{\f36\insrsid7743138 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.}{ \f36\insrsid3081764 \par }{\f36\insrsid7603127 \par The Plaintiff shall also have the costs of the suit. \par I so order. \par }{\f36\fs16\insrsid7603127\charrsid16405118 \par }{\f36\insrsid7603127 In the final result, Judgment is entered for the Plaintiff against the Defendant in the following terms: \par a.\tab Special damages: Shs.10,600,000- (ten million six hundred thousand only). \par b.\tab General damages: Shs.2,000,000- (two million only). \par c.\tab Interest on (a) and (b) at the rate of 22% per annum from the date of Judgment \tab till payment in full. \par (d).\tab Taxed costs of the suit. \par }{\f36\fs16\insrsid7603127\charrsid16405118 \par }\pard \qj \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid16405118 {\b\f36\insrsid7603127\charrsid3670685 Yorokamu Bamwine \par J U D G E \par 18/04/2006}{\b\f36\insrsid7603127 \par }\pard \qj \li0\ri0\sl480\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid7039965 {\b\f36\fs16\insrsid3670685 \par }{\b\f36\fs16\insrsid16405118\charrsid16405118 \par }{\b\f36\insrsid3670685\charrsid3670685 \par }}