Markburridge Haulliers (U) Limited v Crown Beverages Limited & 7 Others (Civil Suit 477 of 2017) [2023] UGCommC 277 (23 August 2023)

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA AT KAMPALA**

**(COMMERCIAL DIVISION)**

**CIVIL SUIT NO. 477 OF 2017**

**MARKBURRIDGE HAULLIERS (U) LTD :::::::::::::::::::: PLAINTIFF**

**VERSUS**

1. **CROWN BEVERAGES LTD** 2. **CK AND COMPANY** 3. **MIKE MERCHANTS & CO. LTD** 4. **RWESASI ENTERPRISES LTD :::::::::::::::::::::::: DEFENDANTS** 5. **SENA DISTRIBUTORS LTD** 6. **SELCO ENTERPRISES LTD** 7. **KONYO INVESTMENTS CO. LTD** 8. **CHARNIE SUPPLY AND CONSTRUCTION (U) LTD**

**BEFORE: HON. LADY JUSTICE CORNELIA KAKOOZA SABIITI**

**JUDGMENT**

**Background**

1. The Plaintiff brought this suit jointly and severally against the Defendants for breach of contract, special, general and punitive damages and costs of the suit. It was the Plaintiff’s case that after expressing its interest in transporting the 1st Defendant’s beverages to different locations in the country at a transportation fee, the 1st Defendant asked the Plaintiff to obtain, palletize trucks to the size of the 1st Defendant’s crates and brand the trucks in accordance with Pepsi International standards. 2. To comply with the 1st Defendants requirements, the Plaintiff obtained a loan facility from Orient bank to be serviced over a period of 5 years, purchased palletized and branded trucks. The Plaintiff began transporting the 1st Defendant’s beverage in August 2014. To ensure an effective service, the Plaintiff entered into chain supply agreements with suppliers of tires, fuel and lubricants. The Plaintiff was the exclusive transporter of the 1st Defendant’s beverage to the depots of the 2nd, 3rd, 4th, 5th, 6th, 7th and 8th Defendants. Under the business arrangement, the 1st Defendant would set the transport rate (price) and forward it to the distributors (2nd to 8th Defendants) by way of margins. The 2nd to 8th Defendants would remit the transport costs to the Plaintiff at the end of the month. 3. In June 2017, the 1st Defendant in concert with the 2nd to 8th Defendants negotiated a reduced transport rate with V. J Keshwala & Sons Ltd to cover the entire country including the locations served by the Plaintiff without giving the Plaintiff a chance. On 21st June 2017, all the Defendants summoned the Plaintiff to a meeting without prior notice and verbally terminated the contract. The Plaintiff instituted this suit and obtained an interim order which the Defendants violated by reducing the transport rate in July 2017 and subsequently the transport volumes of the Plaintiff making it difficult for the Plaintiff to continue operating. The Plaintiff lost Ug.shs.. 206,614,936/= as a result of the reduced volumes. The actions of the Defendants frustrated the Plaintiff’s operations forcing the Plaintiff to withdrawal from the contract to avoid incurring more liabilities. After the Plaintiff withdrew, the Defendants increased the transport rates, a sign that the reduction was aimed at frustrating and driving the Plaintiff out of business. 4. In their joint written statement of defence, the Defendants denied the Plaintiff’s claims. The 1st Defendant averred that while it is true that the Plaintiff approached it seeking transport business like other transporters do, it recommended the Plaintiff to the 2nd and 8th Defendants its contract distributors. The 2nd to 8th Defendants contracted the Plaintiff to transport soda beverage to their respective depots in western Uganda. In pursuance of this transport service, the Plaintiff always invoiced and received its payments from the 2nd to 8th Defendants. The 1st Defendant only informed the Plaintiff that it was a requirement to palletize trucks and brand in accordance with Pepsi International Standards because the 1st Defendant could not load any truck without pallets or acceptable branding. 5. Further that the 1st Defendant did not assure the Plaintiff of any business continuity so as to instigate it to obtain the alleged loan to purchase the truck. The Plaintiff actually stated that it already owned its trucks to transport the soda. Had the 1st Defendant known that the Plaintiff did not have the trucks, it would not have recommended the Plaintiff to the 2nd to 8th Defendants. The 2nd to 8th Defendants denied contracting the Plaintiff for any specific set duration of time. The transport contracts were on an adhoc basis depending on the purchase orders that they would place for the 1st Defendant’s soda. The 2nd to 8th Defendants averred that they had a verbal contract with the Plaintiff whose performance largely depended on the pricing of soda by the 1st Defendant. 6. Further that the 2nd to 8th Defendants never agreed to confer directly or indirectly any monopoly rights of transport for their products purchased from the 1st Defendant’s factory. The 2nd to 4th Defendants averred that they bought their own trucks and transported the products even when they had a contract with the Plaintiff. The 1st Defendant set the price of its products, leaving a margin for transport from which the distributors would pay the Plaintiff. VG Keshwala & Sons was already transporting the Defendant’s beverages to western Uganda long before the Plaintiff approached the 1st Defendant. in the meeting of 21st June 2017, the 1st Defendant merely advised the Plaintiff that it would be reducing the margin left to its various distributors with effect from 1st July 2017 due to the passing of the 2017/2018 budget which increased excise duty on soda beverages so as to enable the Plaintiff harmonize its accounts with the distributors before the new margins came into effect. The interim order issued was to prevent the 1st Defendant from terminating the alleged contract but was never about any rates or transport volumes. The 2nd to 8th Defendants were never party to the order issued. 7. In its reply to the written statement of defence, the Plaintiff maintained that no other transporter delivered beverages to the depots of the 2nd to 8th Defendants in those three years. By conduct, the Defendants recognized the Plaintiff as the exclusive transporter of the 1st Defendant’s beverages to the 2nd to 8th Defendants. Due to the specialized nature of the transport business, the Defendants reduced the transport rate and volumes well knowing that the Plaintiff would not break even and as such cease operations.

**Issues**

1. The following issues were agreed upon for determination under the joint scheduling memorandum: 1. Whether there was a contract between the Plaintiff and the Defendants. 2. If so, whether the Defendant breached the contract. 3. What remedies are available to the parties.

**Witnesses**

1. Hearing was by witness statements. The Plaintiff led evidence through Ms. Shirley Matovu Tumuhairwe, a director of the Plaintiff who testified as PW1 and Mr. Noah Hassan, a turn man for truck No. UAX 400K belonging to the Plaintiff as PW2. The Defendant led evidence through Mr. Kamugisha Mugenyi, employed as the head of Warehouse of the 1st Defendant as DW1 and Mr. Ssemaganda Bashir, the general manager of the 5th and 6th Defendants, which are under one management testified as DW2.

**Representation**

1. The Plaintiff was represented by M/s. Ark Advocates and the Defendants were represented by M/s. Raymond Aruho & Co. Advocates. 2. The Plaintiff bears the burden to prove to the satisfaction of Court the averments, if he is to succeed as provided for under section 101 of the Evidence Act. This burden is on a balance of probabilities.

**Issue No.1: Whether there was a contract between the Plaintiff and the Defendants.**

1. PW1’s witness statement was a repetition of the averments in the Plaint summarized above. In cross examination, it was his evidence that there was an oral arrangement between the Plaintiff and the 1st Defendant from which the parties concluded a contract. She was given a rate for three years to transport beverages. She had assurance of business exclusivity and was exclusive of Western Uganda including Masaka, Rukungiri, Ntungamo but did not include Mbarara and Kasese. Would transport to Luwero adhoc. It was the duty of the distributor to collect and transport. The 1st Defendant sets rates and uses distributors as agents. 2. Further that palletizing was a condition before getting the contract. The 1st Defendant never asked the Plaintiff to get a loan and the Plaintiff did not notify the 1st Defendant about the loan. It was always the 2nd to 8th Defendants to pay transport fees to the Plaintiff. She used to invoice the 2nd to 8th Defendants. There was no consideration/contract between the Plaintiff and the 1st Defendant. It was exclusive transport for the 2nd to 8th Defendants by performance and not agreement. By 15th August 2017, the Plaintiff was no longer a distributor. The 1st Defendant would set a price of soda, give it to the 2nd to 8th Defendants to sell but leave a margin for profit and transport. There was a meeting between the Defendants and V. G. Keshwala and Sons Ltd to discuss transport. 3. It was also PW1’s evidence in cross examination that she did not have a document to show the amount of volumes of transport or documents on the number of vehicles but due to the performance, was doing a certain number of volumes monthly. It was the Plaintiff that withdrew the trucks upon termination but had no hard evidence of termination. 4. In re-examination, it was PW1’s evidence that she had a contract with all Defendants. That they orally asked them to bring more trucks in a meeting and that she should get the necessary facilitation to meet their demand. For this to work out, she needed to capitalize and also buy a yard nearby the 1st Defendant. She would not have more business without a yard. The consideration of this contract was for her to transport and be paid. Exclusivity came about because during that time, there were no other people taking beverages to the areas that she delivered. In a meeting around June 2017, the Managing Director clearly stated that her services would not be required. That Kashawala had offered better rates. She withdrew the trucks in protest because the rates had been lowered but other rates went up. 5. It was PW2’s evidence that he would pick beverage of the 1st Defendant and transport it to several destinations in western Uganda including Bushenyi, Ntugamo, Masaka, Rukungiri and Rubare. On average, the truck he was working with would make 9 deliveries to the above mentioned districts in a month and there were more than 5 trucks belonging to the Plaintiff that would take beverage to the said locations in the same period. The distributors would call the 1st Defendant if they needed deliveries and the 1st Defendant would make orders for them to transport the goods. It was the 1st Defendant who would choose the truck to load and the distributors had no say in the choice. They were working well until June 2017 when Keshwala who was solely transporting to the Eastern region started transporting to the locations the Plaintiff was transporting to. In July 2017, the number of orders reduced to four orders a month yet they would see Keshwala taking soda every day to locations previously served exclusively by the Plaintiff. 6. PW2 also testified that on many occasions, they were turned away by the 1st Defendant when they went to load soda. The 1st Defendant subsequently refused to load their trucks for deliveries to Masaka, Rushere, Ntungamo, Rukungiri, Kabarole and left them with only Ishaka which was subsequently also taken away from them. On one occasion while seated in a truck of Keshwala with his friends, he saw a printed order for delivery to Bushenyi issued to the Plaintiff’s truck No. UAH 018 with the name of the Plaintiff cancelled with pen and replaced with that one of Keshwala. On one occasion, they were given an order which was printed in the names of the Plaintiff but were told that they are no longer allowed to take beverage to Ntungamo anymore and Keshwala was the one to take it. Even Bamanya trucks were also affected. In October 2017, Mr. Munyampaka told them that he has given them 24 hours to remove all the Plaintiff’s trucks from the 1st Defendant’s premises and when they inquired from their bosses, they confirmed that they should remove the trucks. 7. In cross examination, it was PW2’s evidence that contract distributors would call the transporter. He would get a call from the 1st Defendant that their truck was ready for loading. Mr. Munyampaka would call. He did not know whether other distributors would transport their own soda. He never saw any document indicating that the Plaintiff was entitled to so many orders per month. The levels of orders can depend on the hot and we/rainy season as well. Customer places the order for soda. He never knew that the customers had charged the transport charges. He did not have a copy of the order on which the Plaintiff’s name was cancelled and there was no evidence to show that that the handwriting was for the 1st Defendant’s staff. That the Bamanya trucks were also affected by the same charges but later. In re-examination, he testified that the manager he was talking about is Munyapaka who used to determine which vehicles to load. The loading order comes from office. 8. It was DW1’s evidence that the Plaintiff on its own withdrew its trucks from the premises of the 1st Defendant. In 2014, PW1 approached the 1st Defendant requesting for transport business. Upon looking at its trucks, they were not conforming to the minimum requirements of a transporter of the 1st Defendants products. Any interested transporter who needs business at the 1st Defendant’s premises must at its own cost, palletize its trucks to ease loading and off-loading of soda crates by a forklift. Palletizing of trucks is not done on any assurance of continued business of transportation but to meet basic requirements of a transporter. 9. The 1st Defendant sells its soda products through independent companies known as contract distributors spread all over the country. The 2nd to 8th Defendants are such contract distributors. The 1st Defendant examines all requests for transporters and once satisfied that they can indeed transport, the 1st Defendant merely recommends such transporters to its contract distributors as fit and proper. The contract of transport lies between the distributor and the transporters. It is the contract distributor to pay the transport fee to the Plaintiff. 10. In line with the distributorship agreements, the 1st Defendant has the sole unfettered discretion of setting the soda prices for the distributor in which the 1st Defendant leaves a margin for the distributors to cater for distribution costs/services and the transport cost of the Plaintiff. In performance of transport contract, the Plaintiff always invoiced the 2nd to 8th Defendants for its fees. The transport rate is a matter between the contract distributors and the Plaintiff. Whenever the 1st Defendant changes the margin on soda beverage downwards, the contract distributors have no option but to adjust the transport fee as well. The 2017/2018 national budget increased excise duty on soda beverage which meant that the margin left to contract distributors was set to change. 11. The 1st Defendant called the 21st June 2017 meeting to only advise the Plaintiff of this fact of impending changes in the soda margin to enable the Plaintiff harmonise its accounts with distributors before commencement of a new margin. In June 2017, the 2nd to 8th Defendants communicated new transport rates to the Plaintiff whom they asked to confirm acceptance of new rates if they are agreeable. The Plaintiff declined to reply and the 2nd to 8th Defendants started using other transporters to deliver their cargo at new rates. Some of the distributors also transported their products using their own trucks. During the sustenance of the interim order, the Plaintiff’s trucks were continuously loaded with soda beverage in thousands of crates and cartons but the application for temporary injunction was dismissed and the court observed that the 1st Defendant did not have a contract with the Plaintiff. Between the period when the Plaintiff was transporting soda beverage, the 2nd and 5th Defendants were equally transporting their own soda using their trucks or other transporters. The claim by the Plaintiff of having been a monopoly transporter for western Uganda is a total lie. The Plaintiff’s transport volumes declined because the Plaintiff refused to accept the new transport rates which were communicated by some of the contract distributors. There has never been any agreed number of trips that the Plaintiff was entitled to transport per week, per month or per year. The transport volumes depended entirely on the market demands reflected in the soda orders made by the distributors. 12. In cross examination, he confirmed that he inspected 5 trucks belonging to the Plaintiff and required the Plaintiff to palletize the trucks for the smooth operation of transport. Where a distributor makes an order to be carried by a specific transporter, and the transporter was available, DW1 would accept the order. Where the vehicle is not conforming to the standard of DW2, he would advise the distributor to look for another transporter. The 1st Defendant sets a margin to the distributors and within that margin is where the distributor is supposed to pick even the transport rate. DW1 called the meeting which was about the change of rates as a sensitization meeting with the suppliers. There are many depots in western Uganda. There are those in Mbarara and Bushenyi where the Plaintiff was not delivering. He was not aware that the Plaintiff was hiring the trucks because she said that she had trucks. The pricing of goods has so many factors like raw materials and the cost of production. The Plaintiff continued to transport the beverages even when the price went down. 13. In re-examination, it was DW1’s evidence that the Plaintiff’s trucks had to be changed from being manually loaded to being loaded with fork lifts, a requirement which cut across. The transport contract lies between the distributor who pays the transport and the transporter who owns the truck. The 1st Defendant’s interest in the transport contract is for the smooth running of business. The meeting of 12th June 2017 was for all transporters so that they are not taken by surprise. The document at page 112 of the Plaintiff’s trial bundle does not show the telephone numbers, the author or recipient. He was not sure that the conversation took place as claimed by the Plaintiff. He maintained that there were instances when the distributors used their own trucks. The Plaintiff was still transporting even after the case was in court. 14. It was DW2’s evidence that the Plaintiff was recommended to them as a suitable transporter of soda beverage but the 5th and 6th Defendants never contracted the Plaintiff on a permanent basis. The Plaintiff would occasionally be asked to transport soda on a trip by trip basis and would accordingly be paid its transport fee after issuing an invoice to them. The transport fee paid to the Plaintiff was part of the margin that the 1st Defendant would leave on the soda beverage and the transporter had the option of either refusing or accepting the fee indicated. The 5th and 6th Defendants never contracted the Plaintiff as a monopoly and would also transport using their own heavy duty truck registration No. UAL 318D. The said Defendants often used other transporters like the one sourced in Masaka Town registration Nos. UAV 039H and UAT 860G. They never assured the Plaintiff of any number of trips in a given month or year. 15. In cross examination, he maintained that it was the 1st Defendant recommending transporters to them. The Plaintiff started delivering to them in 2015 and stopped in December 2017. They would hire the Plaintiff to transport bottled sodas and would use other means to transport plastic. They would place and order for a specific type of soda and ask Mr. Munyampaka James who was the ware house supervisor to get for them a transporter and he would communicate the one he has gotten. However DW2 would get his transporters from Masaka as well. 16. In re-examination, it was DW1’s evidence that he would pay the Plaintiff for transportation. The Plaintiff would invoice the 5th and 6th Defendants. There are many circumstances when he would choose a transporter. 17. Section 2 of the Contracts Act defines a contract to mean an agreement enforceable by law as defined in [section 10](#_bookmark12). Section 10 (1) provides that a contract is an agreement made with the free consent of parties with capacity to contract, for a lawful consideration and with a lawful object, with the intention to be legally bound. Subsection (2) provides that a contract may be oral or written or partly oral and partly written or may be implied from the conduct of the parties. Subsection (3) provides that a contract is in writing where it is— (a) in the form of a data message; (b) accessible in a manner usable for subsequent reference; and (c) otherwise in words. Section 2 of the Act defines consideration as a right, interest, profit or benefit accruing to one party or forbearance, detriment, loss or responsibility given, suffered or undertaken by the other party. 18. I have carefully considered all the pleadings and submissions of the parties. While the Plaintiff insists that it had a contract with all the Defendants, the 1st Defendant denies these allegations. It would appear from the evidence that before anyone starts transporting the 1st Defendant’s beverages, they must obtain its approval. This sometimes requires alteration/modification of transportation trucks. Taking steps to obtain the 1st Defendant’s approval does not amount to an assurance of business rather, however it is a requirement to be considered by the 1st Defendant as suitable to transport its products. After obtaining this approval, the 1st Defendant then recommends the transporter to its distributors as suitable for engagement. 19. From the evidence adduced in court, it is deducible that while the distributors were at liberty to choose which transport means to use to take the products, such means had to meet the approval of the 1st Defendant. Where the distributor did not provide specific transportation, upon its request, the 1st Defendant would choose from the transporters available in the yard to transport the products to the given distributor. This is in line with clauses 6.2 of DEX 1 and DEX , the distribution agreements between the 1st Defendant and the 3rd and 5th Defendants respectively at pages 1 -57 of the Defendant’s trial bundle which provide the contract distributors obligations to include among others “ to collect and transport products through a recommended transporter from CBL factory at own risk.” 20. The Plaintiff sought to rely on PEX 3 at page 13 of the Plaintiff’s trial bundle as evidence that the transport rates were determined by the Defendant. In their submissions, the Defendants had objections to this document on grounds that the Plaintiff never tendered the original document, its author or recipient was never called to testify and by virtue of the written statement of defence, the 4th Defendant who is the supposed recipient denied this document. 21. Having been admitted in evidence, there was no need to bring its original, call its author or recipient as these are steps taken to prove the authenticity of the document so that court admits it in evidence. Secondly, because it was admitted in evidence, this court is duty bound to evaluate it against all the other evidence adduced in court. On that basis, the objections by the Defendants are overruled. 22. PEX3 is on a headed paper bearing the 1st Defendant’s name and is addressed to the director of the 4th Defendant from Ivan Mutibwa, the Sales Operations and Admin Manager giving notice change of transport rates. It is stated that “I write in reference to the product price change communicated and effected in June 2015. This is a reminder that the new transport rates below also took effect in the same period alongside the product price change and were adjusted to take care of the VAT obligations of the transporter.” The prices are given for the different products and the letter continues that “you are therefore advised to settle all your transporters’ accounts in accordance to the rates above and ensure compliance with the VAT requirement.” 23. There are key elements to note in PEX3. The letter was addressed to a distributor and not a transporter. The communication was to the effect that the transport rates were as a result of price change. Further the distributor was advised to settle accounts of its transporters. Although these specific rates were set, they were to a distributor and not a transporter. It is therefore my conclusion that even if this letter points to a possibility of the 1st Defendant setting rates to the distributors, it does not confirm that the 1st Defendant set rates for transporters. 24. DW1 testified that the 1st Defendant would leave a margin in its prices for the distributors to meet their expenses including transport. Indeed all the witnesses testified that the transport paid to the transporters is from the margin left by the 1st Defendant. I am inclined to believe that it was up to the distributors to determine how to use the margin left by the 1st Defendant in running their business including paying transport costs. For example, PEX 7, 7(a) and &(b) at pages 30 -32 of the Plaintiff’s trial bundle are letters dated 27th June 2017 addressed to the Plaintiff from the 3rd, Channie Supplies and Construction Ltd and the 5th Defendants communicating changes in transport cost. In all letters, the Plaintiff is informed that the authors have reviewed the transport rate paid to it for transportation of their goods from their business partner the 1st Defendant. In the first PEX 7, the old rate for a 300ml is 2259, the new rate is 1730. In PEX 7 (a), the old rate for a 300ml is 1974 and the new rate is 1816. In 7 (b), the old rate for a 300ml is 1074 and the new rate is 1020. The variance in the prices continues for all the different products that the Plaintiff was transporting. If the transport rate was determined by the 1st Defendant, there ought to have been a uniform rate for all the distributors. The evidence proves the contrary. 25. It was indeed PW1’s evidence that the consideration for transportation was the payment received. DEX1 and DEX2 in clauses 6.3 clearly state that one of the obligations of the distributors is to fulfill all transporter requirements detailed in the transport arrangement, these include timely payments and offloading of products. All witnesses testified that it was the 2nd to 8th Defendants paying for transport. PEX 4 (a-k) at pages 15 -26 of the Plaintiff’s trial bundle and DEX3 at page 58 of the Defendants’ trial bundle are invoices from the Plaintiff to the different distributors for transport charges. Clearly, it was the distributors paying the Plaintiff for its transport services. 26. In this arrangement which involved the Plaintiff and the Defendants, each party had its role to play. The evidence adduced proves that the 1st Defendant’s role was to set price for the products, approve transporters, load transporters upon the request of the distributors and supervise both the transporters and distributors. I have not found any ounce of evidence to prove that the 1st Defendant made an offer to the Plaintiff which it accepted and there was consideration for the same. I therefore find that there was no contract between the Plaintiff and the 1st Defendant. 27. On the other hand there is overwhelming evidence to prove that there were offers made to the Plaintiff to transport goods by the 2nd to 8th Defendants at various times, the Plaintiff accepted these offer and the consideration was payment for the transport services. I therefore find that there were various contract between the Plaintiff and the 2nd to 8th Defendants. Therefore, Issue one is resolved in the negative in respect to the 1st Defendant and in the affirmative in respect of the 2nd to 8th Defendants.

**Issue No.2: Whether the Defendants breached this contract**

1. **Black's Law Dictionary 5th Edition at page 171** defines breach of contract as where one party to a contract fails to carry out a term. In **Nakawa Trading Co. Ltd v. Coffee Marketing Board Civil Suit No. 137 of 1991** court defined a breach of a contract as where one or both of the parties fails to fulfil the obligations imposed by the terms of a contract. In **Stanbic Bank Uganda Limited v. Haji Yahaya Sekalega T/A Sekalega Enterprises High Court Civil Suit No. 185 of 2009** court observed that;

“A breach of contract is the breaking of the obligation which a contract imposes which confers a right of action in damages to the injured party. It entitles him to treat the contract as discharged if the other party renounces the contract or makes performance impossible or substantially fails to perform his promise.”

1. From the evidence in court, it is easy to establish that the there was no fixed term contract. It was on an adhoc basis or trip by trip basis. The Plaintiff would be contracted to deliver the beverages on a given trip and upon delivery, it would invoice the given distributor who would pay for that trip. This would conclude that give trip awaiting for the next. The assertion by the Plaintiff that it was assured business for 5 five years and being an exclusive transporter for the Western Uganda region are not supported by the evidence. 2. While the Plaintiff contended that its services were orally terminated in a meeting held on 21st June 2017, DW1 clarified that he called this meeting for all transporters to make them aware of the changes in pricing which would affect the transport rates as a result of the excise duty imposed on sodas in the national budget. When you consider the supervisory role of the 1st Defendant, this is not farfetched. Secondly, the evidence on record shows that even after this meeting the Plaintiff continued transporting products whenever engaged. This is clearly evident in the load outs adduced by the Plaintiff as PEX 9 to 9 (fff) pages 34 to 92 of the Plaintiff’s trial bundle and DEX 7 at pages 114 to 143 of the Defendant’s trial which go as far as 28th September 2017. Again this disproves the Plaintiff’s allegations of termination. 3. The second leg of the Plaintiff’s assertions is that its contract was frustrated by the Defendants by reduction in transport rates and volumes assigned to the Plaintiff. I have found no evidence to prove that the Plaintiff was entitled to a given number of volumes. Indeed DW2 testified that sometimes they used the Plaintiff’s vehicles because they would load more glass bottled sodas but used other means to transport other products. As far as transport rates are concerned, these were determined by the 2nd to 8th Defendants. PEX7, 7(a) and 7(b) communicating change in transport cost all conclude by saying that “we look forward to your continued service if the above is agreeable to you.” Having continued to the offers to provide transport, the Plaintiff agreed to the prices. 4. Additionally, it was both PW1’s and DW1’s evidence that it was the Plaintiff who withdrew its vehicles. In a letter dated 23rd October 2017 withdrawing the Plaintiff’s vehicles exhibited as PEX11 on page 111 of the Plaintiff’s trial bundle, it is written that

*“ … as our client indicated to yours in a letter dated October 10th 2017, the act of your client in reducing the transport fee and volumes our client delivers to your distributors makes it difficult for our client to meet basic operating costs and as such it is difficult for our client to continue transporting your client’s beverage. To make matters more difficult, in the month of September, your client further reduced the transport fee without discussing the same with our client. We therefore wish to inform you that your client’s actions have forced our client to withdraw its trucks from your client’s premises. Also be informed that because our client cannot meet its operating expenses under the new structure which was put in place arbitrarily by your client before consulting ours; our client will not transport any of your client’s beverage going forward.”*

1. For clarity that letter was written by M/s. Ark Advocates as counsel for the Plaintiffs and was addressed to M/s. Raymon Aruho & Co. advocates as counsel for the 1st Defendant. Clearly, it was the Plaintiff that chose to end its transport engagement. The Plaintiff also claimed that upon the Plaintiff exiting, transport rates were increased. It relied on PEX 11 at page 112 of the trial bundle which it claims to be a phone Whatsapp conversation proving the increase of the prices. However a comparison of PEX11 and PEX 7 show that while the rates of some products went up, the others reduced. For example, the new rates in PEX7 for 300ml is 1730 but in PEX11 it is 1786 for the 3rd Defendant and 1897 for 4th Defendant. For the 330ml- PET, it is 564 versus 416 for the 3rd Defendant and 442 for the 4th Defendant. 2. Based on the above, I have not found any iota of evidence to prove that the 2nd to 8th Defendants failed to carry out their obligations thereby breaching the contract with the Plaintiff. Issue two is resolved in the negative.

**Issue No.3: Remedies**

1. The Plaintiff had prayed for special and general damages, lost income, interest, and costs of the suit. However, having found no evidence of breach of contract by the 2nd to 8th Defendants and no contract with the 1st Defendant, there is no basis for these prayers. The suit is therefore dismissed with costs to the Defendants.

It is so ordered.

**CORNELIA KAKOOZA SABIITI**

**JUDGE**

**23rd August 2023**