Lowi Roadways Co. Limited v Madi Co-operative Union Limited (Civil Suit 452 of 1993) [1994] UGHC 86 (20 October 1994)

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

HIGH COURT CIVIL SUIT 452/93

LOWI ROADWAYS CO. LTD. ::::::::::::::::::::::::::::: PLAINTIFF

VERSUS

MADI CO-OPERATIVE UNION LTD. : ::::::::::::::::::: DEFENDANT BEFORE: THE HON. MR. JUSTICE F. M. S. EGONDA NTENDE

J U D G M E N T

The Plaintiff, Lowi Roadways Co. Ltd., brought this action to recover special and general damages from the defendant, Madi Co-operative Union Ltd. The Plaintiff seeks to recover:-

- Special damages in the sum of shs. $1,242,000/$ = and<br>interest thereon at 20% P. A. from $1/5/1993$ till<br>judgment and thereafter at 10% P. A. till payment "(1) thereof in full. - $(2)$ Shs. 4,705,360 and interest thereon at 15% P. A. from the date of the suit till judgment and<br>thereafter at 6% P. A. till payment in full. - General damages for breach of contract and interest $(3)$ thereon.

in addition to costs of the suit.

$\cdots$

The defendant was served with summons to enter appearance and Plaint but did not enter appearance. An interlocutory judgment was entered by the Registrar under 0.9 rule 6 of the Civil Procedure Rules on $23/7/93$ and the suit was set down for formal proof.

According to the Plaint, the plaintiff claims shs. 4,705,360 being the balance due to the plaintiff from the defendant on account of cetton, delivered to the defendant by the plaintiff, plus commission and transport for the same.

The plaintiff also claims a further sum of shs. 1,242,000/= incurred on transport and subsistance by the plaintiff between July 1992 and April 1993 from Kampala to Adjumani and back to demand payment.

$...12$

The plaintiff called one witness, Ceaser Mudeke Tokuma, a Director of the plaintiff. He testified that sometime in January 1992, he was approached by the Secretary Manager of the defendant who invited him to purchase cotton from farmers in Madi, and supply it to the Union. He was advised that Government was issuing Licences to private cotton buyers. He obtained a Cotton Buyers Licence from the Ministry of Co-operatives and Marketing which was tendered in evidence as Ex. P.1.

The only evidence available in support of the claim for shs. 4,705,360/= in the testimony of PW1 states:-

> "Between 9th February 1992 and 19th June 1992<br>I delivered cotton worth more than shs. 48 Million. I used to issue reciepts to the farmers. There is a form on which the defendant recorded the deliveries. It was entitled

"Bale Weigher/stock verify daily report".

The form was filled by the Bale Weigher Mr. Martin Eturu, an L. M. B. representative in the Union together with the Storekeeper of Madi Co-operative Union Ltd. Some copies of the form were sent to L. M. B. and others remained with the Union. I am demanding a balance of shs. $4,705,360/$ = which the defendant did not pay on account of the cotton I delivered to the defendant".

The foregoing is the only evidence in support of the claim for the balance of the value of cotton supplied. The quality of the cotton supplied is not stated. It is not known whether it was AR type of cotton or BR type of cotton or both, for which the Secretary Manager of the defendant had told FW1 the price. which was supplied. Delivery Notes were not tendered in evidence. I cannot establish what exactly the sum of shs. $4,705,360/$ = is due for save the generalised statement that it is the balance of the cost of cotton, supplied to the defendant by the plaintiff and commission and transport for the same. I would have expected PW1 to bring atleast the records of his own company that show the transactions between the plaintiff and defendant.

$--13$

$\mathcal{L}$

At the very least a Statement of Account. Even these records As there is no evidence that the sum of is due to the plaintiff from the defendant shs. 4,705,560/= were not forthcoming. No explanation was provided for the absence of the records. , I have only one option open to me and that is to dismiss this claim.

As the plaintiff has not proved that he is entitled to the principal claim, I do not think he can be entitled to the claim for special damages of shs. 1,242,000/= allegedly spent on transport and subsistance by the plaintiff while trying to persuade If the plaintiff had proved that there was a sum outstanding for which he expended money trying to recover as special damages, money spent on travelling and subsistance to meet a District Administrator in connection with a debt between two business organisations. the defendants to pay him. recover, it would have been possible to consider this claim. /if I am, however, doubtful that even/the plaintiff had succeeded to establish his principal claim, whether he would be entitled to

In the result, the plaintiffs claim is dismissed with no order as to costs as the defendant did not appear.

> F. M. S.^GONDA WTEKDE JUDGE 20/10/94

2^/10/1994 9:08 A. M.

Present

Muyanaa Court Clerk,

Absent

Plaintiff and his Advocate.

Judgment delivered.

^f^i.sS-eSgonda ntende

JUDGE 20/10/94

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