Fred Bakasemba v Sam Engola (Civil Suit 375 of 1999) [2002] UGCommC 23 (29 January 2002)

Full Case Text

## **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA AT KAMPALA H. C. C. S NO 375 OF 1999**

**FRED BAKESIMBA PLAINTIFF**

#### **VERSUS**

**SAM ENGOLA DEFENDANT**

**0 ( •**

#### **BEFORE: THE HON. LADY JUSTICE M. S. ARACH-AMOKO**

### **JUDGEMENT**

The Plaintiff and the Defendant are both businessmen in Kampala. The Plaintiffs claim against the Defendant is for special and general damages for breach of contract, interest and costs ofthe suit.

According to the plaint, the facts giving rise to the Plaintiffs cause of action arose as follows: Sometime in 1998, the Plaintiff imported into Uganda 1 used motor vehicle 8 used motor cycles and other motor spare parts. The said motor cycles were subsequently registered in the Plaintiffs names.

While awaiting to sell the said items, the Plaintiffreceived a fax from Japan inviting him to attend an African Night Work Camp. The Plaintiff had no money to enable him to travel to Japan. He subsequently approached the Defendant to whom he says he sold the motor vehicle at an agreed price of Shs 11,000,000 and 6 million for six motor cycles at a rate of Shs 1 million each; giving a total of Shs 17 million. The Defendant paid shillings 2.2 million to enable him to pay the taxes and clearing charges and Shs 300,000; making a total of Shs 2.5 million as part payment. The Plaintiff delivered the items to the Defendant's home in Mbuya, but retained the logbooks. The Defendant told the Plaintiff to go back for payment the next day. When the Plaintiff went back for payment, the Defendant kept on avoiding the Plaintiff several times and later issued the Plaintiff a cheque for Shs 7 million as part payment. The cheque was dishonoured when the Plaintiff presented the same for payment. When threatened with legal action, the Defendant paid a further Shs 6 million as part payment, leaving an outstanding balance of Shs persistent demands, hence this suit. 8.5 million. The Defendant has not paid this balance inspite of various

In his written statement of defence, the Defendant denied the Plaintiffs claim, the facts giving rise to the cause of action and the various persistent demands made by the Plaintifffor the money in question.

Shs 12,000,000 and not shs.11, 000,000 and 6,000,000 as alleged by the Plaintiff. The Defendant avered further that he has paid Shs 12,200,000 in various installments. He has therefore discharged his obligation, and is not indebted to the Plaintiff at all. The suit should therefore be dismissed with costs. The Defendant however contended that the agreed price for the truck was Shs 8 million and the motor cycle was Shs 700,000 each, making a total of

The following issues were framed and agreed upon at the commencement of the trial:

- 1) What was the agreed purchase price between the parties? **(.** - *2)* What were the payment terms? - 3) What is the total payment and how much is the balance owing, if any? - 4) Remedies available to the Plaintiffif any.

The Plaintiff was the sole witness and so was the Defendant. Both Counsels filed written submissions. I have dealt with the issues in the order in which they were framed.

The first issue, is what was the agreed price ofthe goods? This was an oral agreement. testimony of the Plaintiff and the Defendant. The Plaintiff insisted in his testimony that the agreed purchase price was shs.ll million for the vehicle *(* and Shs 6 million for the motor cycles at a rate of Shs 1 million per motor cycle. This was 12million and Shs 1.2 million for each motorcycle. The Defendant in his written statement of defence contended that the agreed price was Shs 8 would make a total of Shs 12.200,000 (8,000,000+700,000x6). During examination in chief, the Defendant however testified that "Fred sold me one Toyota Mitshubishi pick up 1982 model at Shs 8 million and I paid him in full. He also sold me 8 motor cycles at Shs 600,000 each. Ide delivered only If this testimony is to be believed, then the 6 motorcycles would cost 3.6 million and total contract price would be Shs 11.6 million. He then went on to give various figures which did not tally. a result of their negotiation where he had charged Shs 6 of them two were stolen." million for the vehicle and Shs 700,000 each for the motor cycles. This The evidence is therefore what can be gathered form the

He tried to explain the discrepancy during cross-examination that the Shs 100,000 difference on the motorcycles was after registration. I do not except this evidence as it is contradictory and an after thought. I instead accept the testimony of the Plaintiff, who testified without any contradictions. I therefore find it as a fact that the agreed price was Shs 11 million for the truck and Shs 6 million for 6 motorcycles making a total of Shs 17 million.

On the Second issue, that is the payment terms, the Plaintifftestified that the Defendant paid him shillings 2.5 million before he delivered the truck and the motorcycles to the Defendant. He testified that the Defendant told him to go back for the balance the following day. He did not get the money. Fie Defendant that the camp was remaining with only 5 days to close and he had to go. The Defendant said he had no cash. Pie gave a part payment of Shs 7,130,000 by a post-dated cheque (Exhibit P3) which later on bounced. From the above evidence, it is evident that the Plaintiff expected the payment immediately after delivery so that he could travel to Japan. It is also evident that the Plaintiff was ready to accept payment by installment as evidenced by the installments he received. The Plaintifftestified that" This went back after 5 days still he did not get paid. He pleaded with the time I did not make any agreement because the payment was going to be done at once."

Which brings me to the third and fourth issues, that is the total amount paid, Defendant paid some ofthe money by installments as hereunder: the balance and the remedies available. The Plaintiff told court that the

1) Shs 2.2 million as tax.

*(* 2) Shs 300,000 as repair charges for the motorcycles

3) 6 million through his lawyers.

million less Shs 8.5 million which is Shs 8.5 million. Making a total of Shs 8.5 million. The balance would then be Shs 17

The Defendant on the other hand contended that he has paid everything and is no longer indebted to the Plaintiff. In his written statement of defence he avered that he paid a total of Shs 12.2 million in various installments and he **o** did not owe the Plaintiffany money at all. Pie told court in his evidence in chief on the other hand, as follows: -

each motor cycle, that is Shs 3.6 million making a total of Shs 11.6 million. I had already given him a total of Shs 5.7 million as follows: "He told me that he wants Shs 8 million for the vehicle plus Shs 600,000 for

*6*

**I**

Shs 2.7 million for clearance Shs 2 million for the other vehicle 500,000 extra 300,000 service 5,700,000

We agreed that the 5.7 million should be deducted from the Shs 11.6 million. The balance was now Shs 6.1 million. Out ofthis balance, he told **(** money for registration- it came to Shs 6.8 million. So I told him that me that he had sold me the vehicle duty free. So I had to pay an extra I would round it to Shs 7 million and he agreed."

> As can be clearly seen from the foregoing statement, the total payment allegedly made by the Defendant does not add up to Shs 5.7 million, but it adds up to Shs 5.5 million. And if he was a serious businessman and not a charitable organisation as he stated, how could he "round up" the sum to Shs 7 million. All in all, I find the Defendant's testimony regarding the installment payments not only confusing but a pack of lies and a ploy by the Defendant to escape his indebtedness to the Plaintiff. I therefore believe the Plaintiffs testimony that the Defendant has so far paid only Shs 8.5 million

as earlier on spelt out. The balance outstanding is Shs 8.5 million and the Plaintiff is entitled to it.

The Plaintiff also testified that as result of the Defendants actions he paid several visits to the Defendant's office and home to demand his money, he eventually missed the work camp in Japan where he was to make some money, the Defendant kept on dodging him until he gave a cheque which was dishonoured, as a result of which the Plaintiff had to report the case to therefore entitled to general damages. The Plaintiffs Counsel proposed Shs 6 million. This is on the high side and no basis has been given for it. I think the sum of Shs 1.5 million is adequate to compensate the Plaintiff for all the inconveniences suffered. Central Police Station. All this affected his business. The Plaintiff is

The Plaintiff is also entitled to interest on the outstanding amount since this was a commercial transaction. Costs also follow the event.

In the result, I enterjudgment for the Plaintiff against the Defendant for: 1) Shs 8.5 million outstanding balance.

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2) Shs 1.5 million general damages

3) Interest on (1) at a rate of 20% p.a from date offiling till payment in full.

4) Interest on (2) at court rate from the date ofjudgment till payment in full.

5) Costs ofthe suit.

M. S. Arach-Amoko JUDGE

Judgment read in draft in the presence of:

1) Andrew Wamina for Defendant.

2) Ms Khalayi for Plaintiff

3) Okuni C/clerk.

M. S. Arach-Amoko JUDGE. 29™ JAN 2002.

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