[1997] UGHC 16

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

## CIVIL SUIT NO. 401 OF 1994

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JASO ENTERPRISES LTD. ;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;; PLAINTIFF **VERSUS** ATTORNEY GENERAL <pre>111111111111111111111111111111111111 BEFORE: The Hon. Mr. Justice A. O. Ouma

$\mathcal{L}$

#### **JUDGMENT**

In this suit, according to the amended plaint the plaintiff instituted this action against the defendant to recover Shs. $10$ 32,462,080/=, interest thereon, general damages for breach of contract and costs of the suit.

According to the same amended plaint, the facts constituting the cause of action are that;

- $15$ on 4.10.1988 the Military Tender Board awarded to $(i)$ the plaintiff a running tender to transport military goods ( See Exh. P2). - the receipt of the tender by the plaintiff was $(iii)$ confirmed to them in a letter dated 12.7.1989, from one captain Turyahikayo the officer in $\mathcal{I}$ charge of traffic at the National Resistance Army Headquarters referenced 6 Hqs T. P. I'/450 (See $Exh.$ P3).

(iii) by 5.9.1990 the said invoices had not been settled, wherefore, the officer in charge of Accounts, the Assistant Accountant and the Ag. Director of Transport wrote to the Director of Finance requesting that monies due and owing be paid (see $Exh. P4$ ).

$(iv)$ $\alpha$ $10.8.1992,$ the Director $of$ *Military* Intelligence wrote a letter to the Secretary for Defence requesting that the money due and owing to the plaintiff be settled. By the letter it $10$ was acknowledged that the defendant was indebted to the plaintiff in the sum of Shs. $32.462.080/=$ . Unfortunately neither was annexure "E" annexed to the amended plaint nor exhibited in evidence.

By Paragraph 2 of the written statement of defence, the defendant $15$ denied the alleged fact of the plaintiff having rendered any service to it and contended that it does not owe the plaintiff the sum of Shs. 32,462,080 as alleged claimed. However, it would seem to me that the denial, subject to the evidence, is mere pleading as the defendant produced no evidence to prove it (see 10 Order 6 rule 1 of the Civil Procedure Rules).

Be that as it may, framed agreed issues are;-

- whether the plaintiff rendered the services $1.$ alleged in the plaint. - if so, whether the defendant fully paid for the services so rendered. $2.$ - whether the plaintiff is entitled to the $\overline{3}$ . reliefs sought.

$25.$

$\mathcal{S}$

*3*

- 4^-

### c 4. Quantum *of damages; if any.*

w'

In my view the 1st issue. Major Bosoweli Before for the Ministry of Defence without a tender. After using the motor vehicles the traffic officer in the Directorate *!O* of Transport in the Ministry of Defence issued work tickets showing the journeys made by the motor vehicles. The purpose of work tickets was to enable the plaintiff to process payment for the jobs done and to invoice the Directorate of the Army and due to 1.4 million, 2-0 the Transport Department for the payment of money owing The Traffic Officer used to process payments. of this suit will depend on the With regard to the /-- - m ¹⁹⁸⁸ the plaintiff Military Tender was awarded a tender by the Board to transport military supplies. 1988 the plaintiff success or failure evidence adduced. Nambale that i~ - . million, and Shs. -1-^4 million. award of the tender was paid by the Ministry of Defence. the plaintiff. Under that procedure, they were paid Shs. All the services rendered before Shs. 5.4 Before the award of the tender, the Director of Transport in the Ministry of Defence used to write ti the plaintiff to supply motor vehicle to the Ministry. was transporting goods

was the same save that If that was section 90 as inadmissible under be written terms of the tender (Exh. the clear read; P2) the plaintiff the procedure clearly contradicts which for appreciation tender the procedure of the tender on an invoice. had to add a copy then this piece of oral evidence would of the Evidence Act as it After the award of

$-70-$

"Ref: SDS. 143 Vol XVI

Date 2nd Nov. 1988.

M/S Jaso Enterprises Co. $P. O. Box$ 5087, **KAMPALA**

#### TRANSPORT SERVICES

During the meeting held on 4th Oct. 1988, the Military Tender Board awarded you, a running tender to transport Military goods. The approved rate is Shs. $\tilde{70}/=$ (Seventy Only) per ton per

The purpose of this letter is to request you to reader 10 tender your services and submit your papers to this office for processing payment.

In any further correspondence on this subject please quote minute 336/88/MTB clause (b) dated 4th October, 1988 as your authority.

*Signed* ........ Jimmy Kabegambire (LT) Aq Secretary/Military Tender Board c.c. The Director of Transport."

Section 90 of the Evidence Act, provides;

"When the terms of a contract or grant or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence, save as mentioned in section 78, shall be (contract, grant *given* in proof or other disposition of property, or of such the terms of matter except the document itself or secondary evidence of its contents in cases in which is admissible secondary evidence under the provisions herein before contained."

Before I proceed further, I have to point out that in this suit, Exh. P2, the tender is a contractual document in which its terms. were reduced into writing. The terms are short, clear and The plaintiff was offered a running Military Tender $s$ -p-ecilic specified. to Transport the defendant's Military goods at the rate of Shs.70/= per ton per kilometre. According to the evidence of

$20$

$25$

$30$

$35$

$15$

PW1, the plaintiff accepted the offer and is binding on both parties. therefore, the tender

*5*

According to the terms, the plaintiff had to invoice the defendant for payment after completing each transportation of Military goods to whatever their destinations by applying the rate of Shs. 70/= of tons covered and submit the invoices to the defendant's Director of Transport for processing payment as per paragraph ³ of the tender document, quoting Minute 336/88/MTB; clause (b) , dated 4th IO October, 1988, as the plaintiff's authority for submission of invoices for processing payment or payments for the service or services rendered in accordance with paragraph one of the tender document (Exh. P2) . The evidence of PW1 to the effect that after award of the the plaintiff the old procedure the save that the plaintiff had in submitting like work tickets to the Directorate of the per ton per kilometre multiply by the number carried or transported and by the number of kilometres *on* an invoice invoices or if you defendant's Transport Department, had to add a copy of the tender is misconceived and inadmissible. remained the same, tender to

Directorate of Transport (see Exh 7-° trailers to the Hire of two which did not fall within the P3) , in my view, the plaintiff was to tender. The terms of the military goods. transport concern of was a transaction

that Exh.4, acknowledging laintiff is dated 5.9.1990. the outstanding bill of Shs. ^I also *2.5"* I observe 32,462,080/= owed to the p

J

*f* **I**

observe that the tender is dated 2nd November, 1988. If the sum was incurred $\overrightarrow{op}$ accordance with the terms of the tender, then the evidence that it was so incurred has not been shown to prove the claim. Acknowledgment of the sum owed is one thing and to prove how it was incurred as to be owed is another. Under the $\mathcal{S}$ tender the onus $\frac{\mu s}{19}$ upon the plaintiff to prepare and submit its papers or invoices for payment for the service or services rendered. It is surprising to observe that the plaintiff failed to submit a duplicate or even a photo stat copy of such papers or invoices prepared as per the tender document and applying the B accepted rate of Shs. 70/= per ton per kilometre. Failure so to do, is in my view evidence that on balance of probability the plaintiff did not render the alleged services to the defendant who rightly in my view has maintained that the plaintiff ever $\sqrt{S}$ rendered any services to it. In conclusion I would dismiss this suit with taxed costs to the defendant.

WWWW Ouma J U D G E $24/2/1997$

Y.

24/2/1997 $2:30p.m$

Judgment read and signed in open Chambers in the Court: presence of Mr. Dan Mwolobi holding brief for Mrs. Bosa for the plaintiff and of Mr. J. Matsiko for the $25$ defendant, and of Mr. J. Kamyuka court clerk.

مد

Ouma UDGE $/02/1997$ $-72-$

$\epsilon$

### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

## CIVIL SUIT NO. 4GI OF IS94

JASO ENTERPRISES :::::::::::::::::::: FLAINTIFF

#### **VERSUS**

ATTORNEY GENERAL : : : : : : : : : : : : : : : : : : :

#### **TECREE**

This Suit coming on 24.02.1997 before Honourable Justice A. O. OUKA for final disposal in the presence of MS. DAN BWOROBE holding brief for Mrs. Bossa, Counsel for the plaintiff and MR. J. MATSIKO for the defendant. IT IS DECREED and ORDERED that:

(a) This Suit is dismissed.

(b) Plaintiff pays costs of this Suit to the defendant.

GIVEN UNDER my Hand and Seal of Court this.

DRAWN & FILED BY:

We approve the Decree.

defendant. For the

**REOISTRAR**

1997.

M/S MURNEZI, BAMWITE & CO. ADVOCATES, UNIVERSAL HOUSE, PLOT 8/2 LUNUM STREET, P. O. EOX 7456 KAMF ALA