Nabukka Industries Limited v Umeme Limited (CIVIL SUIT NO. 318 OF 2016) [2020] UGHCCD 197 (18 September 2020)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA **CIVIL SUIT NO. 318 OF 2016**

### NABUKKA INDUSTRIES

LIMITED::::::::::::::::::::::::::::::::::::

#### **VERSUS**

#### **UMEME**

LIMITED::::::::::::::::::::::::::::::::::::

#### $NT$

### **BEFORE JUSTICE SSEKAANA MUSA**

#### **JUDGMENT**

The plaintiff is a consumer of electricity at its factory premises at Namanve. The plaintiff relies on the consumption of electricity to operate its business. On or about the $20^{\text{th}}$ day of February 2015, the plaintiff's business premises were disconnected from power supply for allegedly tampering with the meter. The plaintiff contends that the said reason was unjustified as the plaintiff has never at any time tampered with the meter supplied by the defendant and that no test report produced by the defendant established any evidence of the meter being physically tampered with.

Subsequent to the disconnection, the defendant produced and furnished a report which established that the plaintiff's meter had not been physically tampered with rather that the software installed in the meter by the defendant had been illegally reprogrammed and as a consequence was faulty.

The defendant on the other hand justified the disconnection in its written statement of defence and stated that the plaintiff had tampered with the meter so as not to record the units consumed by the factory on Thursdays, Saturdays and Sundays. The defendant also contended that the plaintiff's power supply was disconnected for illegal power use and failure/refusal to pay an electricity bill of UGX 152,402,145 being the energy consumed and unpaid for.

At trial, he plaintiff was represented by Ms. Ruth Birungi whereas the defendant was represented by Mr. Paul Kaweesi.

The parties filed a joint scheduling memorandum where the following issues were framed for determination by this court;

- 1. Whether the disconnection of electricity supply from the plaintiff's business premises was lawful. - 2. Whether the plaintiff is liable to pay UGX 152,402,145 to the defendant. - 3. What remedies are available to the parties?

The parties also filed written submissions that were considered by this court.

#### **COURT'S ANALYSIS**

# *Issue 1; Whether the disconnection of electricity supply from the plaintiff's business premises was lawful.*

According to the disconnection notice, the plaintiff's power supply was disconnected because the defendant suspected the plaintiff to have tampered with or allowed tampering with the meter.

PW1 led evidence to show that the plaintiff did not tamper with the meter as it was always under lock and key with the keys in possession of the defendant's officials and that the disconnection was done under a mere suspicion of tampering. The plaintiff also submitted that the according to **PE1**(notice to consumer), all the factory seals were intact at the time the meter was removed from the plaintiff's premises however there was a contradiction with **PE2**(test report) that indicated that the flap seals were broken at the time of conducting the tests. The plaintiff's counsel submitted that this clearly indicated that the tampering was done between the time the meter was picked from the premises and the time it was delivered to the lab.

PE2 also found that the meter was reprogrammed on 19/06/2013, made not to register energy consumed on Thursday, Saturday and Sunday. DW1 during cross examination stated that one needed physical access to the meter in order to reprogram it.

The defendant submitted that the plaintiff's acts of tampering with the meter seals, flaps and software occasioned loss to the defendant as the plaintiff consumed power which was not billed or paid for hence justifying the disconnection.

The meter's failure to register energy consumed on Thursday Saturday and Sunday arouses suspicion that it was indeed tampered with. According to **Management Training and Center vs. Patrick Kakuru Ikanza SCCA 6/1985** – Wambuzi J – *"…an inference cannot be readily drawn from proved primary facts if there are other co-existing facts which weaken or destroy that inference".*

The evidence on record indicates that the meter was kept in a location that only permitted officers of the defendant who had possession of the key access to the same. The box was locked by the defendant's officers, checked by them and sealed by them. No keys for the meter box are kept by the plaintiff which begs the question; how could it have been the plaintiff who tampered with the meter? The plaintiff had no access to the meter thereby destroying any inference that the meter was tampered with by the Plaintiff.

The supplier may disconnect the power immediately where the consumer has obtained the supply of power otherwise in accordance with the code – Clause *15.5.1 – Electricity (Primary Grid Code) Regulation*. In this instance the supplier has to have evidence under *Clause 7.5.1 (d) and (e) of the Code* Regulating, that a consumer tampered with, or permitted tampering with the meter or associated equipment, by passed, or allowed electricity supplied to bypass the meter.

I have not found any evidence that it was the plaintiff who tampered with the meter therefore the disconnection of the power supply to the plaintiff's premises was unlawful. The suspicions made by the defendant officials had no basis in absence of any concrete proof.

# *Issue 2; Whether the plaintiff is liable to pay UGX 152,402,145 to the defendant.*

The plaintiff submitted that if the court is persuaded to find that the disconnection was unlawful then there exists no liability to pay the alleged default sum. Counsel for the plaintiff further submitted that no evidence was led by the defendant on how the figure was arrived at and therefore this is an unexplainable sum that should not be paid by the plaintiff.

DW1 told court that the plaintiff had consumed a total of 106520.5 kWh and 84.3 kVA during the period which was not paid for.

The defendant's counsel submitted that the sum of UGX 152,402.145 was arrived at by multiplying the 106520.5 kWh with the rate for each unit in February, 2015 taking into account the time of consumption of power, that is, peak hours, off peak and shoulder.

Counsel for the defendant submitted that the defendant is empowered under Regulations 12.3.1(c ) and 12.3.2 (d) of the Electricity (Primary Code Code) Regulations, 2003 to estimate the plaintiff's bill based on the readings captured or the plaintiff's consumption history.

**Regulation 12.3.2 (d)** provides that; *Where a 1iceesee is unable to base a bill on a reading of the meter at a consumer's supply address because the meter has been tampered with, the licensee may provide the consumer with an estimated bill based on the consumer's reading of the meter or the consumer's prior billing history or where the consumer does not have a prior billing history, either average usage of electricity at the relevant tariff or average usage at the supply address, whichever is the lower.*

The defendant did not satisfactorily prove to this court how he arrived at this hefty amount. In **Global Company (U) Limited v Umeme Limited Civil Suit No. 236 of 2014,** Lady Justice Flavia Senoga Anglin held that; *Further, the Defendant owed a duty to the Plaintiff to explain the basis used in arriving at the figures claimed in the fraud bill, more so in those cases where there were unregistered consumption…*

She further noted that *a computation has to be made using the rates that applied within the period to arrive at a just figure.*

Similarly the plaintiff in this case cannot blindly pay the amount claimed by the defendant without it being discussed and justified.

I therefore find that the plaintiff is not liable to pay the UGX 152,402,145 to the defendant.

# *Issue 3; What remedies are available to the parties?*

The plaintiff sought declarations, damages, interest and costs of the suit.

## **Special damages**

The plaintiff sought UGX 245,288,790 as special damages. Counsel for the plaintiff submitted that the plaintiff lost an average of UGX 2,725,431 for each day the factory was closed multiplied by the 3 months it was closed equates to about UGX 245,288,790. The plaintiff produced copies of tax invoices and delivery notes (PE6) to prove the claimed sum in special damages.

The defendant's counsel on the other hand submitted that the plaintiff did not lead any satisfactory evidence, oral or documentary to prove the claim that it earned an average of UGX 2,725,431 per day in 2014 or 2013.

Counsel submitted that the plaintiff sought to rely on Tax invoices and delivery notes but these do not prove the claim as they were suspect and unreliable. Counsel submitted that the delivery notes did not show the names of the customers who received the supplies of the plaintiff whereas others simply indicated "self"which implied that the plaintiff delivered the goods as the supplier and at the same time received them as a customer. On the tax invoices, counsel submitted that they are not proof that money moved from customers to the plaintiff.

Counsel for the defendant further submitted that the plaintiff as a limited liability company is required under the Companies Act, 2012 to carry out annual audits of its affairs and it would have been expected to rely on its audited financial statements of the year 2014 and perhaps 2013 to determine what was lost due to power disconnection. Counsel prayed that the claim for special damages be rejected.

Upon a critical analysis of the tax invoices and delivery notes by the plaintiff, I have found them to be unreliable evidence to prove the plaintiff's claim of special damage.

It is trite law that *"Special damages and loss of profit must be specifically pleaded. They must also be proved exactly, that is, on the balance of probability".* **(Haji Asuman Mutekanga vs. Equator Growers (U) Ltd SCCA No. 07/92)**

Most of delivery notes were never signed by the customers receiving the goods whereas others as indicated by counsel for the defendant simply indicated self. I also find it odd and suspect that the plaintiff chose to rely on tax invoices to prove his daily earning over audited financial statements. I agree with counsel for the defendant that, the plaintiff as a limited liability company is required under the Companies Act, 2012 to carry out annual audits of its affairs and it would have been expected to rely on its audited financial statements of the year 2014 and perhaps 2013 to determine what was lost due to power disconnection.

In these circumstances I find that the Plaintiff has failed to prove the claim of special damages on the balance of probabilities therefore reject the prayer.

# **General damages**

General damages are the direct probable consequence of the act complained of. Such consequences may be loss of use, loss of profit, or physical inconvenience.

General damages are such as the law will presume to be direct natural probable consequence of the act complained of. In quantification of damages, the court must bear in mind the fact that the plaintiff must be put in the position he would have been had he not suffered the wrong. The basic measure of damage is restitution. See *Dr. Denis Lwamafa vs Attorney General HCCS No. 79 of 1983 [1992] 1 KALR 21*

It is an agreed fact that the plaintiff's power supply was disconnected on or about 20th February 2015 by the defendant. It was only reconnected on or about 21st May 2015 upon a court order. A period of approximately three months, during which the plaintiff was greatly inconvenienced as no production could go on and certainly suffered loss.

I find **UGX 80,000,000** as sufficient general damages.

# **Interest**

Under S.26 (2) of the Civil Procedure Act – court has powers to award interest if not agreed upon. This provision is fortified by the case of **Crescent Transportation Co. Ltd vs. B. M Technical Services Ltd CA CA 25/200** where it was held that *"where no interest rate is provided, the rate is fixed at the discretion of the trial judge".*

The court will accordingly exercise its discretionary powers to award interest on the general damages at a rate of **18%** per annum from the date of institution of the suit until payment in full.

The plaintiff is also allowed costs of the suit.

It is so ordered.

*SSEKAANA MUSA JUDGE 18th September 2020*