Katushabe v Duhimbaze (Civil Suit 722 of 2020) [2024] UGCommC 217 (28 June 2024)

#### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL DIVISION)

## CIVIL SUIT NO. 0722 OF 2020

KATUSHABE ANNAH ::::::::::::::::::::::: ::::::::::::::::::: PLAINTIFF

### VERSUS

MOSES DUHIMBAZE ::::::::::::::::::::::::::::::::::::

## (Before: Hon. Lady Justice Patricia Mutesi)

#### JUDGMENT

#### **Background**

- 1. The Plaintiff brought this suit against the Defendant seeking a declaration that the Defendant breached a contract for the supply of 12,120 kilograms of peas and the recovery of UGX 64,236,000 being the contract price, special and general damages, interest on the sums awarded at the rate of 28% per annum and costs of the suit. - $2.$ Both the Plaintiff and the Defendant are dealers in fast-moving consumer goods like peas and beans. The Plaintiff has a store in Kisenyi II Ward, Central Division, Kampala. The Defendant's store is in Kisoro District. The Defendant sources and purchases produce from farmers and then resells its it to retailers like the Plaintiff at a profit. - The Plaintiff's case is that towards the end of May 2020, she entered into an $3.$ oral contract to purchase 12,120 kilograms of good quality dry peas from the Defendant at a unit cost of UGX 5,300/= per kilogram and a total cost of UGX 64,236,000. She made part payment of UGX 42,000,000 and requested the Defendant to deliver all the peas to her store with a promise that the balance of UGX 22,236,000 would be paid later as she sells the peas. On 3<sup>rd</sup> July 2020. the Defendant made the delivery as agreed.

- The Plaintiff asserts that while a few of the bags of peas had no problem, the $4.$ majority of the bags were later found to contain rotten peas that were unfit for consumption. She communicated these developments to the Defendant. She alleges that initially, the Defendant promised to come to Kampala to deal with the matter but he later became evasive and reneged on that promise. Further that she took reasonable steps to salvage the peas by sun drying them, but all in vain. She refused to pay the Defendant's balance and instead reported him to Owino Police Station. She also brought this suit to recover her part payment. - 5. The Defendant filed a defence and a counterclaim. His case is that the peas he supplied to the Plaintiff were dry, fit for human consumption and of good quality. That the peas were checked and approved by the Plaintiff's brother and agent, Turyatunga Emma, at the time of loading. At the time of delivery, the Plaintiff had only paid UGX 26,000,000 and that the entire balance was to be paid on delivery. The Plaintiff failed to pay the same on delivery and only sent him an additional UGX 16,000,000 one week later, thereby leaving an outstanding balance of UGX 22,236,000. - 6. The Defendant further averred that in the last week of July 2020, the Plaintiff called him requesting for a reduction in the price from UGX 5,300 per/kg to UGX 5,000 per/kg on grounds of lack of market. He rejected this request and after fruitless demands for the balance, he sent his agent to the Plaintiff's stores to take back the unsold peas. She refused to release the peas, promising to settle the balance in a few days. That she did not complain about the quality of the peas at any one point. Later, she refused to pick his calls and instead brought the instant suit. In his counterclaim, the Defendant seeks to recover the unpaid balance on the purchase price of UGX 22,236,000.

## **Issue arising**

- 7. From these facts, the following issues arise for the Court's determination: - 1. Whether there was breach of the contract for supply of peas.

2. Whether there was fraud in the performance of the contract for supply of peas.

2. What reliefs are available to the parties.

## **Representation and hearing**

- At the hearing, the Plaintiff was represented by Ms. Tamutenda Damalie of 8. M/S Kigenyi - Opira & Co. Advocates while the Defendant was represented by Mr. Kamugisha Vicent of M/S Kamugisha & Co. Advocates. The Plaintiff testified as PW1 while Musanaba Gilbert testified as PW2. She adduced 2 documents that were exhibited as P. Ex.1 and P. Ex.2. The Defendant testified as DW1 while Emma Turyatunga testified as DW2. He did not adduce any exhibits and elected to rely on the Plaintiff's exhibits to make his case. - 9. In her testimony, the Plaintiff (PW1) told the Court that she is a dealer in fastmoving consumer goods like peas and beans, with a store in Kisenyi II Ward, Kampala Central Division, Kampala City. Before this dispute, she and the Defendant had been business partners for about 2 years. When he delivered to her consignments of peas and beans in the past, she used to deposit part of the price and then pay the balance later on after delivery. - 10. The Plaintiff testified that towards the end of May 2020, she asked the Defendant if he had good dry peas for sale and he confirmed that he did. She made an order 12,120 kilograms of dry peas at UGX 5,300 per kilogram. The Defendant insisted that she should first make a substantial deposit on the purchase price before he can load the peas in Kisoro and deliver them to her store. She started sending money to his bank account No. 5820001492 in Centenary Bank. After depositing a total of UGX 42,000,000, she requested the Defendant to send the entire agreed quantity of peas and promised to clear the balance as she sells the peas. The Defendant accepted the terms and delivered the peas in bags/sacks to her store on 3<sup>rd</sup> July 2020. - 11. The Plaintiff confirmed that the first bags she opened were fit for purpose. However, as time went by and she opened more bags to sell, she discovered that some of the bags contained rotten peas. She did further sampling of all the remaining bags and found that they all had rotten peas. She immediately

called the Defendant and told him about these developments. She asked him to come to Kampala to see for himself what the peas looked and smelt like. He initially promised to come but he later reneged. She tried sun-drying the peas but all in vain. She then found out that the peas were not mature and that they had been packed into the bags when they were still not dry.

- Finally, the Plaintiff told the Court that the rotten bags of peas are still in her 12. stores and that they have caused an awful stench which is chasing away her customers every day. They are also occupying space in the store which would be used for other goods. This has caused her great financial losses, low sales, rejection from her customers and psychological and emotional torment. - The Plainiff's second witness was Musanaba Gilbert (PW2) was the Officer, 13. Agriculture at the Kampala Central Division. He told the Court that, on 1st September 2020, he was instructed by the Town Clerk, KCCA Central Division to respond to a request from the OC CID at Owino Police for an investigation into the Plaintiff's complaint vide SD.19.29.08.2020. He proceeded to the Plaintiff's store located at School View Zone, Kisenyi II Ward, Kampala Central Division. He found the store in good condition. The store was dry with no wall water retention yet it had been raining for a few hours prior to his arrival. He took samples from the bags of peas complained of for further examination. Upon that examination, he found out that most of the peas were shriveled, rotten with moulds and discoloured. - The Defendant (DW1) testified that he came to know the Plaintiff through 14. her husband, a one Ambrose, to whom he used to supply grains in the past. He confirmed that before this dispute, he had only dealt with the Plaintiff once when he supplied to her beans on cash payment basis. He said that in May 2020, he supplied a lorry-full consignment of dry peas to one of his Kampala-based customers in Kisenyi, Kampala. The Plaintiff heard of this and immediately called him and asked to be supplied on credit with 12,120 kilograms of dry peas at a UGX 5,300 which came to UGX 64,236,000. He insisted that the supply could only be made on cash basis. The Plaintiff

subsequently mobilized funds and deposited a total of UGX 26,000,000 in his bank account. She promised to pay the balance immediately upon delivery.

- The Defendant said that he then he collected the peas in his store enough to 15. fill two lorries and put them in bags with one destined for the Plaintiff's store and the other for Mr. Baker Sabiiti's store also in Kampala. The peas were duly delivered to the Plaintiff. That before his agents left the Plaintiff's store, the peas were sampled using a probe and found to be fit for purpose. - Finally, the Defendant testified that after receiving the peas, the Plaintiff 16. started selling them to her customers right away. After about a week, she made another payment to him of UGX 10,000,000 and then called him asking for a reduction in the unit cost of the peas from UGX 5,300 per kilogram to UGX 5,000 per kilogram. He rejected the request. The Plaintiff later made another deposit of UGX 6,000,000 and then kept quiet. He tried calling her to follow up on the balance to no avail. He sent his workers to pick up the peas but she refused to release them. He reported her to her fellow grain traders in Kisenyi, but unfortunately, she became very hostile and ran to this Court. Mr. Baker Sabiiti who was supplied with peas from the same heap as the Plaintiff never complained about their quality and fitness for purpose. - Emma Turyatunga (DW2) testified that he was involved in the negotiations 17. leading up to the oral contract between the Plaintiff and the Defendant. He said that, in mid-2020, the Plaintiff called him, after the Defendant supplied peas to a one Turyahabwe who was a trader in Kisenyi, asking if he could persuade the Defendant to also supply her with peas. DW2 convinced the Defendant to supply peas to the Plaintiff. The Defendant insisted on payment before delivery and she made some part payment of the price. That they gathered the peas in their store in Kisoro, put them in bags, loaded them on 2 lorries and dispatched the lorries to Baker Sabiiti and to the Plaintiff. - DW2 told the Court that he had never heard any complaint from Baker Sabiiti 18. about the peas yet his peas were picked from the same heap as those of the Plaintiff. About a week after delivery of the peas to the Plaintiff, DW2 called her for payment and she made a deposit of UGX 10,000,000 but asked him if

the Defendant could reduce UGX 300 from the unit cost of each per kilogram. The Defendant rejected the request. Later, she made another payment of UGX 6,000,000 still complaining that business was bad. When he called her again after some time, she said that she had failed to sell the peas and that she did not have any more money to pay the Defendant. That the Defendant decided to pick the peas from her and sell them to another buyer but when his truck reached her store, she refused to release them.

19. Following the hearing, both counsel filed written submissions to argue their respective cases. I have carefully considered those submissions, the laws and authorities cited there in and all the other materials on record.

## **Resolution of Issues**

- 20. Section 101(1) of the Evidence Act Cap 6 provides that whoever desires a court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts, must prove that those facts exist. Additionally, Section 103 of the Evidence Act provides that the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. - 21. It is trite law that in civil cases of this nature, the burden lies on the plaintiff to prove the existence of his or her rights and the liability of the defendant for breach of those rights on a balance of probabilities. In Miller v Minister of Pensions [1947]2 All ER 372, Lord Denning expounded on the meaning of the phrase "balance of probabilities" when he stated that:

"... The degree is well settled. It must carry a reasonable degree of probability but not too high as is required in a criminal case. If evidence is such that the tribunal can say, we think it more probable than not, the burden of proof is discharged, but if the probabilities are equal, it is not." Emphasis mine.

22. Nonetheless, allegations of fraud, though civil in character, are more serious than most other civil claims. For this reason, they have to be specifically pleaded and strictly proven. It is now generally settled that fraud must be proved strictly and to the satisfaction of the court, the burden being heavier and the standard being higher than a mere balance of probabilities ordinarily applied by courts in civil matters (See Kampala Bottlers Ltd v Damanico (U) Ltd, SCCA No. 22 of 1992). I will be guided by these principles on burden and standard of proof in evaluating the evidence adduced in this case.

Issue 1: Whether there was breach of the contract for supply of peas.

- The phrase 'breach of contract' means 'the breaking of an obligation that a 23. contract imposes which confers a right of action for damages on the injured party' (See Mogas Uganda Limited V Benzina Uganda Ltd, HCCS No. 88 of **2013).** Breach of contract occurs when one or both of the parties fail to fulfill the obligations imposed on them by the contract (See Mwesigye Warren V Kiiza Ben, HCCS No. 320 of 2015). - 24. In the instant case, it is not in dispute that the Plaintiff and the Defendant entered into an oral contract for the supply of peas. The terms of the contract are not contested. Both parties agree that it is only UGX 42,000,000 that was paid by the Plaintiff to the Defendant leaving a balance of UGX 22,263,000. What is primarily disputed is whether or not the Defendant fully performed his obligation under the contract which was to deliver good quality dry peas that were fit for purpose and that complied with the agreed description of "good quality dry peas". It is, therefore, pertinent for this Court to decide whether or not the peas delivered by the Defendant to the Plaintiff were good quality dry peas fit for human consumption. - 25. According to Section 14 of the Sale of Goods and Supply of Services Act, **2017**, there is an implied condition in every contract of sale of goods that goods sold by description shall comply with that description. According to Section 15 of the same Act, there is also an implied condition in every contract of sale of goods that goods supplied under a contract of sale of goods shall be reasonably fit for their purpose where the seller sells goods of a description which it is in the course of the seller's business to sell. In the instant case, the Defendant was a known dealer in beans, peas and other

grains. Both parties told the Court that they entered into an agreement for the sale and purchase of peas. Therefore, the two said implied conditions apply to this case. The Defendant was bound by law to supply good quality dry peas fit for human consumption to the Plaintiff and she was bound to pay for them.

- After analysing all the evidence adduced in this case, I find that most of the 26. peas delivered by the Defendant to the Plaintiff's stores on 3rd July 2020 were not good quality dry peas that were fit for human consumption. The Plaintiff testified that the bulk of peas delivered to her stores were rotten. This testimony was corroborated by PW2 who said that he thoroughly examined the peas and found them shrivelled, rotten with moulds and discoloured. - In his report dated 1<sup>st</sup> September 2020 that was exhibited as P. Ex.2, PW2 27. said he found the Plaintiff's store walls dry and that the side nearest to the peas even had a shop on the other side of the wall. He ruled out the possibility of leaking from the roof. He said that he then sampled two thirds of the sacks of peas from varied positions in the shop and from different positions of each sack, including cross sections, using a probe. He concluded that the pattern of the spoilages was uniform across various sack positions and that this did not happen to the other related produce in the store. He also concluded that the peas were not yet mature enough at the time when they were harvested. - In their testimonies, the Defendant and DW2 both told the Court that the 28. peas they delivered to the Plaintiff were picked from the same heap as those delivered to another customer of the Defendant called Baker Sabiiti who has never complained about his consignment. Unfortunately, the Defendant did not bring Baker Sabiiti as a witness to confirm that he received a consignment of peas from the Defendant which was faultless. Apart from insisting that the peas he delivered were good quality dry peas, the Defendant did not counter the report of the KCCA Officer Agriculture with any specific evidence. - Both the Defendant and DW2 feigned ignorance of the Plaintiff's complaints 29. about the quality of the peas delivered. However, at para. 10 of his witness statement, the Defendant testified that he lodged a complaint against the Plaintiff with her fellow grain traders in Kisenyi but that the Plaintiff became hostile and instead run to Court claiming that he had supplied her rotten peas. It is interesting that the Defendant did not, at that moment, go to the Plaintiff's store to verify or rule out her complaints. On her part, the Plaintiff testified that the Defendant actually sent DW2 and another of his agents to verify her complaints and they indeed confirmed them.

- 30. The Defendant spoke about a common practice among grains traders to extract some grains from sacks upon delivery using a probe in order to find out if the grains fit the description and if they are fit for purpose. He said that this was carried out by the Plaintiff's workers upon delivery on 3<sup>rd</sup> July 2020 and that his driver and turn man left with no complaint from the Plaintiff. - It is trite law that a buyer is taken to have accepted goods in a contract of 31. sale of goods when he or she has had a reasonable opportunity of examining them (Section 43(1) and (2) of the Sale of Goods and Supply of Services Act). Notwithstanding the said common practice among grains traders, a buyer in such circumstances retains the right to reject the goods delivered if he or she discovers that the sampling conducted at delivery did not disclose material and latent defects. In many instances, just like in the instant case, sampling using a probe may not be adequate to reveal all the defects in the delivered products. In this case, that sampling fell short. It failed to show the parties that, at delivery, approximately 94.5% of the whole consignment (11,455) kilograms out of 12,120 kilograms) was rotten/rotting and unfit for human consumption. In my view, the probing did not provide the Plaintiff with a reasonable opportunity of examining all the sacks of peas at the time of delivery. - 32. In any case, owing to the specific products to which that common practice applies, the same may not always be adequate in exposing latent defects in the products. Grains can go bad over time depending on the state they were in at packaging. Again, just like P. Ex.2 showed in the instant case, grains that are prematurely harvested may only start moulding and shrivelling over

$\overline{9}$

time. This implies that probing a sack of premature peas which are delivered on the same day they were packed may not always reveal that they still have moisture in them and the moulding and shrivelling may only show after some days or weeks. Therefore, in this case, the probing of some of the sacks of peas upon delivery did not extinguish the Plaintiff's right to reject the peas once she later on discovered that 94.5% of the entire consignment was unfit for human consumption.

- Finally, both the Defendant and DW2 testified that this suit is frivolous and 33. that the Plaintiff is claiming the peas were damaged only to avoid her payment obligations. However if this was the case, PW2 would not have found any damaged peas in the Plaintiff's store when he visited it for investigation in August 2020. The Plaintiff would have sold off the peas and kept the profits. There would not be any rotten peas in her store. It is unlikely that the Plaintiff would have gone through the great inconvenience she described, at the risk of losing her customers, merely to pull off a ruse and run away from paying the balance of the purchase price yet she had already paid most of it in 2020. The fact that the Plaintiff has held on for all this time and pursued her claim to its logical conclusion in Court makes it more probable than not that her claim is true and genuine. - The Court finds that the Defendant breached the contract for supply of peas 34. when he failed to deliver good quality dry peas fit for human consumption to the Plaintiff.

Issue 2: Whether there was fraud in the performance of the contract for supply of peas.

In Fredrick J. K. Zaabwe V Orient Bank Ltd & 5 Ors, SCCA No. 04 of 2006, the 35. Supreme Court defined "fraud" to mean "an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right". Fraud included any and all actions or omissions calculated to deceive another that a certain state of affairs exists whereas not. In the instant case, both parties alleged fraud against each other.

- In para. 7 of the Plaint, it was alleged that the Defendant acted fraudulently 36. when he knowingly supplied rotten undried peas to the Plaintiff, when he omitted to disclose to the Plaintiff that the peas were not dry, and when he refused to come to Kampala to check on the peas even when the Plaintiff informed him of what was happening. - To discover whether an action or omission was made fraudulently or not, 37. courts often focus on determining if the person behind that act or omission had notice of the falsity of his or her representation. The law recognises that notice may be actual, constructive or imputed. (See Eric Alema v Maybach Motors Ltd & 2 Ors, HCCS No. 417 of 2011). In view of PW2's testimony and P. Ex.2, I am convinced that the Defendant had constructive notice that the peas he delivered to the Plaintiff were rotten and undried. - Constructive notice is the knowledge which the courts impute on a person 38. upon a presumption so strong of the existence of the knowledge that it cannot be rebutted, either from his knowing something which ought to have put him on further inquiry or from willfully abstaining from inquiry to avoid actual notice. (See Eric Alema v Maybach Motors Ltd & 2 Ors (supra)). In the instant case, P. Ex.2 revealed that the only logical explanation for the rotting, shriveling and discolouring of the peas was that they had been harvested before full maturity and that they had, thereafter, been packaged before drying properly. The Defendant ought to have known that the peas were not yet dry and that they would get damaged if packed and stored in sacks. - The Defendant's reaction to the Plaintiff's complaints about the peas further 39. betrays his constructive notice of the state of the peas. The Plaintiff testified in cross examination that she called the Defendant several times on phone after discovering the rotten peas but he did not pick up his phone. She told Court that she then called DW2 who said that the Defendant had two more trucks of peas which he would bring to the Plaintiff to mix them with the earlier delivery and sell, but all in vain.

- 40. Whereas the Defendant and DW2 claimed that they never knew about the Plaintiff's complaints before this suit yet the Plaintiff testified that the Defendant sent DW2 and another of his agents to her store and they confirmed the damage. The above shows that the Defendant had actual notice of the damage. All this saddles the Defendant with constructive fraud in his performance of the contract. - 41. On his part, the Defendant averred in his counterclaim that the Plaintiff was fraudulent when she refused to pay the balance upon receipt of the goods as agreed, when she misrepresented to Police and KCCA agricultural officer that the impugned rotten peas if at all were delivered by the Defendant, when she connived and conspired with Police and KCCA officials to claim that the impugned rotten peas were supplied by the Defendant and when she falsely claimed to have complained to the Defendant about any rotten peas supplied to her or at all. - I reiterate that fraud must include an intentional perversion of truth. If there 42. is no untruth, there can be no fraud. (See Fredrick J. K. Zaabwe V Orient Bank Ltd & 5 Ors (supra)). In this case, the Plaintiff's evidence was that the peas delivered to her by the Defendant were actually rotten and undried. This was confirmed to be true by the testimony of PW2 and the contents of P. Ex.2. The Plaintiff's claim was ascertained by the Police and the local authority in her place of business, so there was no perversion of truth at all. - I have considered the Defendant's claim that he is not the one who supplied 43. the Plaintiff with the rotten peas, if any. However he did not adduce any evidence to prove that the Plaintiff had any other supplier of peas who actually delivered to her the rotten peas. He has not proved that the Plaintiff knowingly and intentionally made false allegations against him. All the evidence points to him being the only dealer in peas who made a supply of peas to the Plaintiff around the time that she started complaining about rotten peas in her store. - In my view, the Plaintiff's refusal to pay the balance is not unjustified or even 44. fraudulent,. She made payments to the Defendant before the delivery. She

also made payments after the delivery. This demonstrates that she would still have paid the balance if she had been able to resale all the peas delivered to her. The true context within which the Plaintiff's refusal to pay the balance should be judged is that she sold off the peas that were fit for purpose and then made further payments to the Defendant. She was, however, unable to sell the remaining peas because they were not fit for purpose. She sundried them but all in vain. She reached out to the Defendant but in vain. This led her to renege on payment and to rescind the contract, as is her right under Section 48(1) and (2)(b) of the Sale of Goods and Supply of Services Act.

I, therefore, find that it is the Defendant, and not the Plaintiff, who was 45. fraudulent in performing the contract.

# Issue 3: What reliefs are available to the parties.

The Plaintiff prayed for the following reliefs which I will now traverse.

#### Declaration

Following the above findings, the Court shall issue declarations to the effect 46. that the Defendant breached the contract for supply of peas and that he acted fraudulently in his performance of that contract.

## Special damages

The Plaintiff prayed for the entire contract sum (UGX 64,236,000) in special 47. damages. In the case of Stanbic Bank Uganda Ltd V Hajji Yahaya Sekalega t/s Sekalega Enterprises, HCCS No. 185 of 2009, this Court held that special damages must be specifically pleaded and proved. The Plaintiff testified that the "first" bags contained good dry peas while the rest contained rotten peas. PW2's report (P. Ex.2) proved that the Plaintiff sold 665 kilograms out of the 12,120 kilograms' consignment. The Defendant did not disprove these figures. Since the unit cost of the peas was UGX 5,300, the Plaintiff was able to recoup UGX 3,524,500 from the 665 Kilograms. Out of her undisputed part payment of UGX 42,000,000, she is, therefore, only entitled to recover UGX 38,475,500 from the Defendant.

Although the Plaintiff prayed for UGX 22,263,000 as lost earnings, I find that 48. she is not entitled to it because she did not actually pay it to the Defendant, and ordering him to return a sum of money which he never received would only unjustly enrich the Plaintiff. I also find that, even though she prayed for loss of profit from sale and storage costs in the Plaint as special damages, she never specifically pleaded the amounts due in those items nor proved them in any material particular. Those items are equally rejected.

## General damages

- General damages are the losses which flow naturally from the defendant's 49. breach. They are what the law presumes to be the direct, natural or probable result of the defendant's breach (See Opia Moses V Chukia Lumago Roselyn & 5 Ors, HCCS No. 0022 of 2013). General damages are what the law implies and presumes to have accrued from the wrong complained of. They are also said to be the immediate, direct and proximate result, or the necessary result, of the wrong complained of. - The evidence adduced at the trial proved that the Defendant delivered a 50. consignment of peas to the Plaintiff's store on 3<sup>rd</sup> July 2020. 94.5% of the peas were rotten and unfit for human consumption. She reached out to him so that they could resolve the matter amicably but he soon turned evasive. She has had to endure the effects of storing those rotten peas throughout the proceedings in this case. In her testimony, she said that she has lost many customers who cannot stand the stench from her store. She also suffered loss of profit and disillusionment following her failure to resale the peas in time as she had initially planned. For all this loss and injury, it is my finding that general damages of UGX 20,000,000 are sufficient to compensate her.

## **Interest**

Under Section 26(2) of the Civil Procedure Act, Court has the power to 51. award interest on the damages awarded in a suit. Ordinarily, a successful plaintiff is entitled to interest at a rate which would not neglect the prevailing economic value of money but which would also insulate him or her against further economic vagaries, like inflation and depreciation of the currency, in

the event that the money ordered to be recovered is not paid promptly when it falls due. (See Mohanlal Kakubhai Radia v Warid Telecom Uganda Ltd. HCCS No. 0224 of 2011.)

52. In view of these principles, the Court hereby awards interest to the Plaintiff on the special damages at the rate of 18% per annum from 3<sup>rd</sup> July 2020 until full payment and on the general damages at the rate of 13% per annum from the date of judgment until full payment.

Costs

Section 27(1) of the Civil Procedure Act allows this Court the discretion to 53. award the costs in a suit before it. The general rule is that costs follow the event. This means that an award of costs will generally flow with the result of litigation and that a successful party is entitled to costs, unless the Court, for good reason, orders otherwise (See Kwizera Eddie v Attorney General, Supreme Court Constitutional Appeal No. 01 of 2008). In this case, I have not found any reason to deny the Plaintiff the costs of the suit. I, accordingly, award the costs of the suit to the Plaintiff.

### The counterclaim

Following the findings in Issue 1 and 2 above, the Defendant's counterclaim 54. fails. Since the Defendant breached the 2 implied conditions in the contract when he delivered peas of a substantially wrong description and which were not fit for their purpose, he is only entitled to the portion of the purchase price equivalent to the portion of peas he delivered which were of the right description and fit for purpose. However I have already factored in that portion while tabulating the special damages due to the Plaintiff. The Defendant failed to prove his claims of fraud against the Plaintiff to the required standard of proof. Accordingly, the counterclaim stands dismissed with costs.

## **Reliefs**

Consequently, judgment is hereby entered in favour of the Plaintiff against 55. the Defendant on the following terms:

- It is hereby declared that the Defendant breached the contract of supply i. peas. - A declaration that the Defendant acted fraudulently in performing the ii. contract for the supply of peas doth issue. - The Defendant shall pay special damages of UGX 38,475,500 plus interest lii. thereon at the rate of 18% per annum from 3<sup>rd</sup> July 2020 until full payment. - iv. The Defendant shall pay general damages of UGX 20,000,000 plus interest thereon at the rate of 13% per annum from the date of judgment until full payment. - The Defendant's counterclaim is hereby dismissed. V. - Costs of the suit and of the counterclaim are awarded to the Plaintiff. vi.

Teadmler

Patricia Mutesi

**JUDGE**

$(28/06/2024)$