Ndeze Bugyendo v Nantale (CIVIL SUIT NO. 1007 OF 1997) [1998] UGHC 35 (1 August 1998)

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA CIVIL SUIT NO. 1007 OF 1997

JOSEPH NDEZE BUGYENDO PLAINTIFF

VERSUS 5

BESI NANTALE DEFENDANT

**o**

## JUDGEMENT: BEFORE: THE HONOURABL^W. W?JUSTICEEbAKTTKI-KTIZ<sup>A</sup> **of " <sup>3</sup> ,ruo cw**

(0 The Plaintiffbrought this action against the defendant for breach ofcontract. The facts in brief are that, the plaintiff runs a Video business which he wanted to run in the defendant's building known as Arizona Night Club, situate at Nyendo, Masaka District. That the plaintiffstarted using in March 1995 and was to pay a monthly rent of UG. SHS. 120,000/=. That however, in March, 1996, the defendant breached the above arrangement by sometimes locking up the club and barring the plaintiff access to carry out his business. Finally the defendant unilaterally terminated the contract, ( **\$** and as a direct consequence thereof, the plaintifflost his property which he claim4as special damages and also he claims general damages for breach of contract. ,

It appears the defendant never entered appearance, where upon the plaintiff successfully applied for interlocutory judgment. The case then came before me for formal proof. At the hearing Mr. Ayigihugu, who appeared for the plaintiff called 2P three witnesses. According to the plaintiff, he entered into an arrangement with the defendant, whereby he was to operate a video show in the defendant's premises in return for rent ofUG. SHS. 120,000/= per month. That he was to pay in advance and the first installment was UG. SHS. 1,200,000/= i.e. from March to 15th April, 1997. - That he paid in two installments. The first one was for 720,000/= from 1st March to Q-<sup>5</sup> 31st August, 1995. The receipt was put in and marked as PE.l. That he later paid another UG. SHS.420,000/= to covet 1st September to 15th December, 1995. This was exhibited as PE. 2. That he again paid another UG. SHS.540,000/= to cover the period from 16th December 1995 to 15th April;. 1996. This was exhibited as PE. 3..


That he later paid another UG. SHS.720,000 to cover 1st May, 1996 to 31st October 1996. The receipt was put in and marked as PE. 4. That he also paid out UG. SHS.660,000/= to cover 5 1/2 months running from 1st November 196 to 16th April, 1997. This was evidenced by PE. 5. The defendant was the author of these receipts.

**2**

That, the defendant started stopping the use ofthe rented premises first, from 4th to 16th ofMarch 1996 for a total of 12 days. Then 2 days 4th and 5th, April, 1997. Then on 11th April 1997. HIGH COURT OF UGANDA I Cer' y . . b i iruc copy x>( <sup>1</sup> ...... .......................... Deputy Rcsistrad

Then 14th and 125th April, 1997.

MASAKA

That for the first 12 days she had alleged that she wanted to renovate the building, but she did not. That from 4th to 5th March. 1997, the closure was the loss of a neighbour's child but that, the body was far away from this Club and was unwarranted.

That for the last 2 days of 14th and 15th April, 1997, she closed the premises and sent away his workers. That he was keeping books of accounts and that, he was receiving an average of UG. SHS. 75,000/= per day. That he was charging UG. |> Shs.200/= per person and was holding 6 shows every day. This would make about 60 people per show. That when the defendant closed the premises and sent away his workers he was not present. That some ofthe property was taken to the L. C's for custody by the defendant. That the missing property included the following:

- (I) Master Command - (ii) Kenwood Amplifier 1200 watts - (iii) The Ampere, stereo, - (iv) Sharp Multi System - (v) 2 Lassonic Speakers - (vi) Entry barrier - (vii) Power Stabilizer - (viii) Micro Phone - (ix) Loud Speaker Cables

**5**

The list of the properties and their value was exhibited and marked as PE. 6. The total value ofthe property he lost while the items were at the LC's is 4,374,000/=. That he later took the remaining property somewhere else for safe custody. That he hired transport at UG. Shs.85,000/= and rented storage facilities at 490.000/- for the period ofseven months.. That he should have been given a notice of at least <sup>3</sup> months O before the defendants terminated their arrangements. This version is more of supported by the evidence ofPW1, the plaintiffs wife who in addition, tendered in the books of accounts. She was keeping , as PE. 8 and PE. 9. PW2, Mr. Godfrey Sebume was the operator ofthe video and doubled as a night guard ofthe premises. Both P. W. 1. and P. W.2. corroborate the version ofthe plaintiffs almost in total.

*Ifl*

As I said earlier Jn;kt9ec<?e¥^r&ant never entered appearance and the case proceeded <sup>1</sup> Certify tillJ n <sup>a</sup> **true** copy ex-parte. of *.....................................* Deputy Registrar

Mr. Ayigihugu, in his sulmussidns contended that, the evidence adduced by the plaintiffs is unchallenged and should be accepted as the truth. Whereas I would agree with him that, where only one party adduces evidence, such evidence could be held to be unchallenged, it may not be necessary the truth. In my view the plaintiff has to prove what he is stating. That's why there is need for formal proof, whereby the plaintiff has to prove his case and this has to be done on the balance of probabilities. (See case of George Brown Turyamureba Vs Attorney General [1992- 1993] HCB 214 per Tsekooko Ag. J. (as he then was) ).

Mr. Ayiguhugu submitted further that, once his client paid the rent, then he was entitled to use the premises, and that, as he missed a total of 17 days and each day the average income was 75,000/=, the plaintiffshould get a total of 1,275,000/=.

Secondly he submitted that, the plaintiff lost property worth 4,374,000/= due to the defendant closing the premises. Thirdly he submitted that, the plaintiffshould also get 2>5 a sum ofUG. Shs.209,000/= to cover costs of transporting the remains ofthe property recovered and their storage which was 175,000/=. Finally he proposed a figure of UG Shs. <sup>1</sup> 000,000/= as general damages, for breach ofcontract and interest thereof.

I Cc.-.-.y **of Cl.yT'f'J**

...... ...................... . Deputy Registrar **D«c.3-T..:Q. L. Md..(**..... ..... . MASAKA

, *"* <sup>13</sup> <sup>3</sup> true copy

IHOn COURT OF UGANDA'

I have carefully considered all the evidence before me and also I have taken into account the submissions ofthe learned counsel for the plaintiff The issues before me areas follows:

(i) Wasthere a contract between the plaintiffand the defendant.

(ii) Ifso was it breached by the defendant.

(iii) Did the breach cause any loss to the plaintiff.

(vi) Ifso, what is the remedy.

I will tackle these issues in the descending order.

The plaintiff stated that there was a contract between himself and the defendant for the hiring ofthe latter's premises at Nyendo, known as Arizona Night Club. He was paying rent of 120,000/= per month and he was issued with receipts, which were exhibited as PE. <sup>1</sup> to PE. 5. This evidence of course stands unchallenged and I see no reason for disbelieving it. I would in the premises hold that, that was a contract between the parties.

contract. The second issue is whether, the defendant breached it. It appears from the evidence before me, there was a clear breach ofthe agreement for the use ofthe defendant's premises by the plaintiff. There is evidence to show that the plaintiff had paid rent of 660,000/= to cover 1st November, 1996 to 15th April, 1997. There is evidence on the record that, the plaintiff had paid up to the 15th April, 1997 (See PE. 5). The defendant is alleged to have kicked the plaintiff out on the 13th April 1997, which was 2 days before the expiry of contract. This action by the defendant in my view was unwarranted and premature. I therefore hold that, the defendant breached the

The third issue is what is the plaintiff's remedies. The plaintiff has shown that, by virtue ofthe defendant closing the club, and removing the iron sheets, and subsequent handing over the property listed in exhibit PE. 6 to the Local LC's, he lost property worth, UG. Shs.4,374,000/=.

This evidence is unchallenged as the defendant never testified. I would grant it as the value of the lost property.

$\mathcal{L}$

The plaintiff in my view has not proved any other special damage, as no documentary evidence was tendered. In any case, the cost transporting his property from Nyendo can not, in my view, be expected to be borne by the defendant. It was the plaintiff's S duty to keep his salvaged property and not that of the defendant. I would therefore disallow the claim of UGS. 209,000/ $=$ and UGS. 175,000/ $=$

Fourthly I agree with learned counsel for the plaintiff, that, the closure of the premises, for a total of 17 days was unwarranted, and the figure of Shs, 75,000/ $=$ per day was reasonable. I would award the total figure of $\frac{1}{2}$ ,000/= as prayed as lost income $\sqrt{0}$ I Certify that this is a true copy for the 17 days.

............ Deputy Registrav Date $27.06 - 2001$

Lastly the learned counsel for the plaintiff submitted that, his client would have been given 3 months notice before terminating, the agreement. I do not agree with him. In the first instance there was no written agreement, binding the parties, though it could be urgued that, in absence of such agreement, a reasonable notice would be a month. $\sqrt{5}$ This is so because rent was paid on a monthly basis. He was paying a sum of UG. There were only 2 days to the end of their last Shs. 120,000/ $=$ , per month. installment of $660,000/$ = as evidenced by exhibit PE. 5. There was no guarantee that, the contract would be renewed. The two days I have already included in the 17 $\mathfrak{Q}^{\mathsf{Q}}$ days, where the plaintiff did not operate.

ヒひ Putting every thing into consideration, I deem general damages equivalent one months rent as adequate and reasonable in lieu of the notice. I would therefore award $UG. Shs.120,000/=$

- All in all, I find that, the plaintiff has proved his case on the balance of probabilities, and enter judgment in his favour in the following terms.

A sum of UG. Shs.4,374,000/= as the cost of the lost equipment, or the $(a)$ equipment itself.

- $(b)$ A sum of 1,275,000/= as the lost income for the 17 days. - $(c)$ A sum of 120,000/= as general damages for breach of contract. - $(d)$ The plaintiff will have interest at the usual court rate from the date of judgment parment<br>till paid in full.

$\mathsf{6}$

He will also have his taxed costs. $(e)$

Order accordingly.

HIGH COURT OF UGANDA 1 Certi it is is a true copy of the $\mathbf{1}$ Date Dr. 06-2001<br>Date Dr. 06-2001 MASAKA

$\mathsf{C}_J$

D. AKIIKI-KIIZA

AG. JUDGE.

$1/08/98$

Both parties absent 3/08/98:

Counsel for plaintiff absent.

It is now 9.10 a.m. I can not wait any longer. Judgment read. Parties to Court: get gist of judgment from Registrar.

D. AKIIKI-KIIZA AG. JUDGE. $3/08/98$

DEPUTY REGISTRAR HIGH COURT MASAKA PAID FINES/ FEES/ DEPOSITS SHS $100$ GREC $2608762$ Date $2\pi$ / $4$ $1$ Cashier $\mu$