Twagira v Kitaka & Another (Civil Suit 242 of 2020) [2024] UGHCCD 92 (31 May 2024)

#### THE REPUBLIC OF UGANDA

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

#### [CIVIL DIVISION]

#### **CIVIL SUIT NO. 242 OF 2020**

CHARLOTTE TWAGIRA ============================ PLAINTIFF

#### VERSUS

- 1. MOSES KITAKA T/A ETHEL COURTS - 2. SECURITY PLUS LIMITED =========== DEFENDANTS

# **BEFORE: HON. JUSTICE EMMANUEL BAGUMA JUDGMENT**

#### **Background**

The plaintiff's claim against the defendants is jointly and severally for compensation and recovery of UGX 33,480,000/= (thirty million four eighty thousand shillings) and USD 9,420 (United States Dollars nine thousand four hundred and twenty) as special damages for the stolen household items, general damages, and costs of the suit. The defendants denied the claim and stated that they do not a have a contract with the Plaintiff to provide security.

#### **Plaintiff's case.**

In a bid prove her case, PW1 the plaintiff testified that in September 2017, she entered into a tenancy agreement with the 1st Defendant for rent of apartments called Ethel Courts, Muyenga which was renewed on 20th September 2019. The rent payable covered accommodation, shared security, external compound cleaning and garbage collection services. All through the tenancy it was the 2nd Defendant who was the one providing security. On 8th September 2019, the plaintiff's apartment was broken into and various valuable ranging from electronic to personal properties worth 33, 480,000/= and USD 9,420 were stolen. She demanded compensation from the defendants to no avail hence this suit.

#### **1 st Defendant's case**

The 1st defendant (DW1) in order to rebut the plaintiff's evidence admitted the existence of a tenancy relationship between him and the plaintiff but testified that he had no obligation to provide security to Plaintiff. That the tenancy agreement between him and the plaintiff does not provide for security and hence he was not under any duty whether contractual or not to provide security.

#### **2 nd defendant's case**

DW2 Adilu Geofrey Stephen the investigating officer of the 2 nd defendant company testified that the 2nd defendant had no contract to provide security to the Plaintiff and hence not under any obligation to provide the same. That the security contract existed between the 2nd Defendant and the 1st defendant for providing security to his premises. When the incident happened that 2nd Defendant rushed to the scene and thereafter secured a police report at Kanyogoga Police Post Vide SD Ref: 17/09/2019 and later Kisugu CRB 227/2019 which found that unknown persons had entered the plaintiff's premises and stole some items. The plaintiff was then tasked to avail several documents to establish and assess the loss but to date she failed.

#### **Representation.**

Counsel Enoch Barata represented the plaintiff, Counsel Mudali Ricky while Counsel Byenkya Emilly Peace together with Counsel John Bulungu represented the 2 nd Defendant.

In the joint scheduling memorandum, parties agreed on 3 issues for determination by court.

- **1. Whether the Defendants are jointly and severally liable for the loss of the Plaintiff's property?** - **2. Whether the plaintiff was contributorily negligent in the theft of property?** - **3. What are the remedies available?**

#### **Submissions by Counsel for the Plaintiff.**

**Issues No. 1**

## **Whether the Defendants are jointly and severally liable for the loss of the Plaintiff's property?**

Counsel submitted that section 10 of the Contracts Act defines a contract as; -

#### *"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 intention to be legally bound".*

Counsel defined breach of contract according to the case of **Alliance Africa General Insurance Ltd Vs Trueline Africa Ltd CS No. 542of 2006** as; -

## *"the breaking of the obligation which a contract imposes which confers a right of action for damages on the injured party".*

Referring to the case of **Kyarimpa Sarah Vs Harriet Nassozi Hewet CS No. 0794 of 2016** counselsubmitted that when a party to a contract fails to perform his or her obligation or performs them in a way that does not correspondent with the agreement, the guilty party is said to be in breach of the contract and the innocent party is entitled to a remedy.

Counsel submitted that the plaintiff and the 1st defendant in 2017 entered a tenancy agreement which was renewed on on 20th September 2019 wherein the 1st defendant provided shared security, accommodation and garbage collection services among others. The 1st Defendant being the Plaintiff's landlord had a duty to provide security to the Plaintiff which is premised on the tenancy agreement and the nature of the relationship as land Lord and tenant.

Counsel submitted that the 2nd defendant's duty is premised on the fact that it was at all material times the security services provider. Whereas the 1st and 2nd defendant had a contract for provision of security services and the 2nd defendant was in charge of security, the 2nd defendant had a duty to provide quality security services which would ensure the safety of the plaintiff's property which he breached hence the loss of the Plaintiff's properties.

#### **Issue No.2**

## **Whether the plaintiff was contributorily negligent in the theft of property?**

Counsel referred to the case of **Asiimwe Alex Vs Maracha Sam HTCCS 102 of 2018** where it was held that; -

## *"Contributory negligence is a defence available to the Defendant and as such must be proved. It is not enough to merely plead it".*

Counsel submitted that the negligence has not been proven on the part of the Plaintiff and it would be wrong to attribute negligence on the Plaintiff.

#### **Issue No. 3.**

## **What are the remedies available?**

Counsel prayed that this court grants compensation of 33,480,000/= and USD 9,420 for the goods stolen and costs of the suit.

## **Submissions by counsel for the 1st defendant.**

#### **Issues No. 1**

## **Whether the Defendants are jointly and severally liable for the loss of the Plaintiff's property?**

Counsel referred to **section 101, 103 of the Evidence Act** and the case of **Clessy Barya Kiiza Vs Jomo Robert Kashaija Civil Suit No. 894 of 2019** which are to the effect that the burden of proof is on the plaintiff and the standard of proof is on balance of probability.

Counsel submitted that the Plaintiff's claim is for compensation and damages arising from a breach of the contract between the Plaintiff and the 1st Defendant. He contended that the said agreement does not contain or mention anywhere among its terms the element of shared security as asserted by the Plaintiff. That the plaintiff herself during cross examination admitted that the element of shared security is not part of the contract signed between her and the 1st Plaintiff.

Counsel contended that the assertion by the plaintiff amounts to introducing oral evidence to vary a written contract. It is a well settled position of law that such evidence cannot be admitted and the same cannot vary a written agreement.

Counsel relied on the case of **DSS Motors Ltd Vs Afri Tours and Travels Ltd HCCS No. 12 of 2013** where court held that in relation to a contract, the rule means that where a contract has been reduced to writing, neither party can rely on evidence on terms alleged to have been agreed which is extrinsic to the contents of the agreement. He prayed that the assertion that the 1st defendant had to provide security be ignored as the same is not in the agreement and the same amounts to parole evidence.

#### **Issue No.2**

## **Whether the plaintiff was contributorily negligent in the theft of the property?**

Counsel submitted that the Plaintiff played a fundamental role in the alleged theft of her property which in turn makes her contributorily negligent under the circumstances.

Counsel submitted that the Plaintiff in cross examination admitted that another person her house helper had the keys to her house and accessed the same at all time. That the Plaintiff had travelled during the week of the theft and her house helper worked 3 days where after she left the house unattended to. The Plaintiff had the obligation to control access to her house which she failed to do. She should have foreseen that leaving the house unattended to exposed it risk since she was not in the country.

#### **Issue No. 3.**

#### **What are the remedies available?**

Counsel submitted that the Plaintiff having failed to prove her case, she is not entitled to the remedies sought.

#### **Submissions by counsel for the 2nd Defendant.**

#### **Issues No. 1**

## **Whether the Defendants are jointly and severally liable for the loss of the Plaintiff's property?**

Counsel submitted that there was no contractual relationship between the plaintiff and the 2nd Defendant and thus the 2nd defendant did not have any duty of care owed to the Plaintiff but rather the 2nd defendant owed a duty of care to the 1st defendant whom they had a contract with and that duty was to guard the whole property and not individual's items of each tenant as alleged by the Plaintiff.

Counsel referred to **section 33 of the Contract Act** and the case of **William Kasozi Vs DFCU Bank Ltd HCCS No. 1326 of 2000** which are to the effect that once parties enter into a contract, they are mandated to fulfill the obligations therein unless the performance of the same is dispensed with or excused under any law.

Counsel contended that there were no contractual obligations between the Plaintiff and the 2nd Defendant as there was no contract between the two and there was nothing to breach.

#### **Issue No.2**

## **Whether the plaintiff was contributorily negligent in the theft of the property?**

Counsel submitted that contributory negligence is defined as the failure by a person to take reasonable care for his or her own theft, which contributes to the harm the person suffers.

Referring to the case of **Acayo Richard Vs Saracen (U) Ltd and others CS No. 63 of 2021** counsel submitted that in order to successfully establish contributory negligence, a defendant must prove that the plaintiff, through his or her own negligence, contributed to the accident. To succeed in the defence of this nature, a defendant has to show that the plaintiff's negligence contributed to the causation of the injury.

Counsel contended that the Plaintiff gave access to her premises to a 3rd party, Nakyeyune Patience (PW2) the house helper who had full access to her apartment. She left the house unattended to for a long time and also failed to install safer locks and padlocks which all compromised the security of her house leading to theft hence she was guilty of contributory negligence.

#### **Issue No. 3.**

#### **What are the remedies available?**

Counsel submitted that the Plaintiff failed to prove her case against the 2nd defendant and she is not entitled to the remedies sought.

In rejoinder, the plaintiff reiterated his submission in chief.

It should be noted that When parties filed a joint scheduling memorandum, they abandoned formerly issue No. (d) which related to the counter claim of 3,000,000/= and both signed counter signed the agreed issues in the joint scheduling memorandum. It was therefore not proper for them to turn around and argue the same in their written submissions. Hence this court has not considered that issue.

#### **Analysis of court.**

#### **Issues No. 1**

## **Whether the Defendants are jointly and severally liable for the loss of the Plaintiff's property?**

In civil litigation, the burden of proof is on the Plaintiff and he or she is required to prove to court on a balance of probability that he or she is entitled to relief being sought. The plaintiff must prove each element of the claim or cause of action in order to recover.

In the case of **Chemicals East Africa Limited Versus KAC Chemicals and Paints (U) limited HCCS NO. 470 OF 2016,** it was held that; -

*"In cases of breach of contract, generally a plaintiff must show (i) the existence of a contract and its essential terms (ii) breach of a duty imposed by the contract and (iii) resultant damages".*

Breach of contract was defined in the case of **Ronald Kasibante vs. Shell**

**Uganda Ltd HCCS No. 542 of 2006 [2008] ULR 690**, where court stated that; -

*"Breach of contract is the breaking of the obligation which a contract imposes which confers a right of action for damages on the injured party. It entitles him to treat the contract as discharged if the other Party renounces the contract or makes the performance impossible or substantially fails to perform his promise; the victim is left with suing for damages, treating the contract as discharged or seeking a discretionary remedy".*

Decided cases have established that a breach of contract occurs where that which is complained of is breach of duty arising out of the obligation undertaken under the contract. *See Taruis vs. Moy, Dacies Smith, Vanderrell & Co. [1936] IKB 399 at 404.*

Section 61 (1) Contracts Act provides that a party who suffers breach of contract is entitled to compensation for the loss or damage caused to him or her.

In the instant case, the Plaintiff and the 1 Defendant had a tenancy agreement for rent of premises. the plaintiff alleges that the said tenancy agreement has a clause that the 1st defendant will provide security to the premises while that 1st Defendant contends that the said tenancy agreement does not contain a clause that the 1st Defendant will be responsible for provision of security.

I have read the tenancy agreement in contention admitted as PEX 1 and found that it does not contain a clause requiring the 1st Defendant to provide security to the Plaintiff's apartment.

The Plaintiff by adducing oral evidence to add on the terms of the contract is offending the parole evidence rule.

In the case of **Future Stars Investment (U) Ltd v Nasuru Civil Suit No. 12 of [2017]** court while quoting *Halsbury's Laws of England (4th edn.) vol. 9 (1) para 622; Chitty on Contracts 24th Edition Vol I page 338; Jacob v. Batavia and General Plantations Trust, (1924)1 Ch. 287*, among others, stated that;-

*"the common law parole evidence rule is to the effect that once the terms of a contract are reduced to writing, any extrinsic evidence meant to contradict, vary, alter, or add to the express terms of the agreement, is generally inadmissible. That further, a contract without ambiguity is to be applied, not interpreted".*

When a contract is clear and unequivocal, a court will enforce it according to its plain terms, set forth on the face of the instrument, and there is no need for the court either to consider extrinsic evidence or to interpret the language of the contract. *See Juma v Wadri (Miscellaneous Civil Application-2017/12) [2017] UGHCLD 8 (20 July 2017),* wherein it was stated by court that; -

*"In the absence of ambiguity therefore, a court is required to give the words of a contract their plain meaning except where such meaning would produce a result which the parties clearly could not have intended. Where a contract is unambiguous, the Court looks to the language of the agreement and gives the words and phrases their plain meaning, as the instrument alone is taken to express the intent of the parties. A written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms".*

In the case before this court, the terms are very clear and unambiguous and this court has only one duty that is to enforce it. This accordingly finds that there was no breach of contract on the part of the 1 st Defendant as there were no such obligations created in the tenancy agreement between the parties.

In respect to the 2nd Defendant, there was no direct contract between the Plaintiff and the 2nd Defendant. The contract for provision of security services was between the 1st Defendant and the 2nd Defendant. The Plaintiff is a 3rd party on the said Contract and accordingly cannot sue on the same.

Under common law, the doctrine of privity of contract, does not usually give rights or impose obligations on a person who was not a party to the contract regardless of the fact that they were intended to benefit from it. *(See: Among Mary Goretti vs Tracks International Limited HCCS No. 280 of 2010).* This doctrine protects parties to a contract from obligations that they never agreed to observe. Thus, only those parties that have an interest in the contract can sue for its enforcement. The plaintiff was not privy to the tenancy agreement and thus cannot legally and validly sue.

Much as section 65 of the Contracts Act creates exceptions to this doctrine, the Plaintiff in this case has not proven the same.

Issue No. 1 is resolved in the negative.

#### **Issue No.2**

#### **Whether the plaintiff was contributorily negligent in the theft of the property?**

Having found that the Defendants where not jointly and severally liable for the loss of the plaintiff's property in issue No. 1, I therefore cannot investigate contributory negligence on the part of the plaintiff.

Issue No. 2 is resolved in the negative.

**Issue No. 3.**

#### **What are the remedies available?**

The Plaintiff having failed to prove contractual obligations to provide security by the 1st and 2nd Defendants, she has failed to prove her case against the Defendants and hence not entitled to the remedies sought.

#### **Conclusion.**

In the final result the plaintiff's suit fails with the following orders

- 1. The suit is hereby dismissed. - 2. Basing on the nature and circumstances of this case where there was a Landlord tenant relationship and in a bid to promote reconciliation, I make no orders as to costs.

Dated, signed, sealed and delivered by email on this **31 st** day of **May 2024.**

Emmanuel Baguma Judge.