[1994] UGHC 117

The Hon. Miv. Justice Ego

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA CIVIL SUIT NO. 488 OF 1992.

JORAM TURYAGYENDA KAZUNGUZA ::::::::::::::::: FLAINTIFF

## V E R S U S

THE ATTORNEY GENERAL ::::::::::::::::::::::: DEFENDANT

**BEFORE:** The Hon. Mr. Justice I. Mukanza

## **JUDGEMENT**

The plaintiff brought this action for general and special ... dmages for breach of contract against the Attorney General being sued in his representative capacity under the provisions of section 11 of the Government proceedings ACT Cap 69 Laws of Uganda.

According to the plaint the plaintiff's claim against the defendant was for specific and general damages for the breach of contract for payment to the plaintiff Uganda Shillings $73,153,650/$ for various food stuffs items, bevarages, fruits and firewood consumed and or used by the defendants agent, employees and servants during 1989/1990, 1990/1991 and 1991/1992 financial years.

As a result of a food contract agreement between him trading as M/S ZONGEE and the Ministry of Health Entebbe on 10th July, 1989 supplied various food stuffs to various institutions including Kabale Hospital, Kabale School of Nursing · and Itojo Hospital. He carried out his obligation and the Ministry of Health never affected payment.

The plaint further showed that as a result of the applications the plaintiff was awarded a contract to supply further food stuffs bevarages. fruits firewood to the said institutions referred to above. The renewal of the contract was affected through the area Tender Board representing the Central Tender Board through District Executive Secretaries

$. . . . / 2. .$

**: 2 ::**

of Mbarara and Kabale District respectively.

That on being awarded, tender to supply, the plaintiff was given local purchases order of the Ministry of Health from the receiving Institutions namely Itojo Hospital in the names of Twaza suppliers. and Twayaga, Kabale Hospital and Kabale Nurses Training School in the names of M/S Zongek and Ngoma suppliers and af'her the issue of local purchase orders did vigorously embark on.,mobilising funds for the items, purchased the same, hired transport \ \* - . and- delivered the items to the institutions mentioned above.

. The plaint continued to allege that on delivery of the items to a particular institution the respective receipient institution would accept the items supplied by signing delivery notes. The exercise was repeated at every institution and occassion. The delivery notes, plus the invoice would be endorsed at the back by receipient institutions, prepare payment vouchers and officials of the respective institution would.carry all relevant documents to Ministry of Health Headquarters at Entebbe to the Principal Accountant office - for examination.and satisfaction as to the correctness of all the documents.

That documents relating to the claim were properly examined and forwarded to the Under Secretary Establishment and Finance for approval of payment for items supplied and consumed and or used hy the institution mentioned above and that the documents mentioned there in were processed by the Senior Auditor and forwarded to the Principal Accountant the officer charged with approval **Of** *^r* **-vouchers'** to be coded for payment after scrutenising by the Auditor General.

The plaint further alleged that during the month of August /1991 "the plaintiffs documents were impounded by officers from

**...../?..**

the office of the Inspector General Government and the same had never been released to the plaintiff despite the fact that it was then a period of over twelve (12) months ever since they : were impounded the.confiscation .and with-holding, of the documents relating to the items delivered was not done in r^pod faith and not justifiable; as the inordinate delay to .release them had caused gross ■financial loss^embarassment3loss of earning and profit and had caused gross inconvenience and substantial costs for which the plaintiff would claim for special damages.

The particulars of special damages were spelt out. in paragraph 10 of the plaint where as the particulars of the obligation were given in paragraph ¹¹ of the s'aid plaint. Further perusal of the plaint showed- that the money was supposed to be. paid within six months but the plaintiff had lost the credibility and. he was financially embarrassed for the. loans •were given to the plaintiff on personal gaurantee then as- he • was credit worth which he was not now. •'

That the food items were received by the institutions **tbene** in above (luring the course of their employment and all items were consumed and used by the 'ibaid institutions belonging to Ministry and the defendant is responsible for the breach of contract and other consequences that followed.

In their.written statement of defence the defendant denied that there was any **contract** between him and the plaintiff for the supply of food.staffs to various Hospital as alleged and consequently denied liability thereof in the form of ^special or general damages. • ••■

In the alternative the defendant pleaded that if there was any contract at all between the plaintiff (which is denied) and the defendant the said contract was not properly executed

**.3**

as no Board authority was ever granted and the purchase were therefore not authorised, consequently the defendant was not liable for the same.

In his written statement of defence the defendant further pleaded that if there was any contract between the Plaintiff and the defendant as allered : the Plaintiff failed to perform his part of the contract by failing to deliver the goods as no delivery notes indicating receipts of the same were ever issued to him by the defendant or at all and the Plaintiff was not entitled to any claim from the defendant.

$\cdot$

$\mathcal{L}(\mathcal{L})$

$\vdots\\$

It was further averred that the suit was incompetent before the court as the cause of action the subject matter of this suit is subject to investigation by the office of the Inspector General of Government and therefore the court could not entertain the matter before completion of the said investigation.

Before the commencement of the trial the following issues were framed and agreed upon by the parties.

- (1) Whether the Plaintiff supplied items food stuffs to Kabale and Itojo Hospitals and Kabale Nurses training school. - $(2)$ Whether there was a breach of contract arising out of non payment for the price.

$(3)$ What damages are available to the Plaintiff if any. The Plaintiff himself gave evidence and called five witnesses including himself where as the defence called no evidence but was represented by Mr. Dusabe Murenga the State Attorney from the Attorney Generals Chambers learned Ministry of Justice. . I must also mention here that the Plaintiff was represented by Mr. Kalule Luyombo from Kalule

$...15...$

Luyombo and Company Advocates.

However, before I consider and evaluate the evidence and consider the submissions of the learned counsels appearing for the parties it is fit and proper to mention at the inception that this case was presided over by Mr. Kalanda J. as he then was who recorded all the evidence and then left without completing the case. I came in at the stage of submissions and took over the case pursuent to order 16 rule 10 of the Civil Procedure Rules

I did not find it necessary to start the trial denovo because in my humble opinion to do so would unnecessarily prolong the trial of has been pending here for almost one and half years. he case which

By doing that of course I was deprived of the opportunity to see the demeanour of the various witnesses in the dock when testifying and thus their creditability.

With that observation I now proceed to consider the issues. I would comment on the submissions of the learned counsels whenever such an occassion arises.

The evidence of PW1 Joram Turyagenda Kazunguza showed that on $14/6/88$ he did apply in the names or Zonge and Co. to supply Kabale Hospital and Kabale Nursing School with food stuffs and firewood. He was awarded the tender on 28/6/88 by the Secretary of the Area Tender Board on behalf of the District Executive Secretary. There was a letter to that effect, he was to supply from 1st July, 1988 to 31 June 1989.

... $/6$ ..

There was a letter from Kabale District for award tender Exh. P.1 for the financial year 1988/1989. He signed an agreement with the heads of the institutions on behalf of the Ministry. The Medical Superintendent and another official signed, the Ministry. After the he went to the Heads of the institutions who gave him

a local purchase order which contained the items to be supplied\*

On 50/6/1990 the plaintiff made another application and was awarded a tender in the names of Zongex and that was on 11th July 1989 to 51st 'June 1990\* The tender was for the supply of . food stuffs\* It was the secretary of Area Board Kabale who awarded the tender. The letter for the ward was marked as exhibit P2 that tender was for the supply of food stuffs to Kabale Hospital and Kabale Nurses Training school for the year 1989/1990 financial year.

Then he made an agreement between the principal Kabale Nursing school and Zongex^ It was executed on 10/7/89 and in respect of Kabale Hospital they signed an agreement with the medical superitendant Kabsto and the Principal of Nursing school Kabale, The tenders were for Kabale Nursing school and Hospital Exp ⁵ and Exp respectively, - .

In the same period he got tender to supply Itojo Hospital with food stuffs under Twazi suppliers company and they signed the agreement, one Dr Nyehangane signed on behalf of the ministry\*/ It was executed^ was to run from 1st July ¹⁹⁸⁹ to 50th June 1990 Exp 5\* The tender for Itojo HospitaT^was issued on 25rd August 1989 by DES District Executive Secretary on behalf of the Secretary Area Tender Board,

The tender was signed and copied to medical superitendant Exhibit PG. After that he went a head and supplied the items on the local purchasing orders he got from the institutions Those L. P. O. S were properly executed.

And for Kabale Nurses Training School Dr\* Ruhemurana **GzeenteA** ^r^%e^m^s0^^e^y^an^ane^e ex%^u^te^F iQ^^ma^kalf of Itojo Hospital\* He supplied the food stuffs as per agreement and LPOs and was paid part-of it not all\* .../7

**6**

Then in 1990/1991 he had a tender to supply Kabale Nurses Training School. Those tenders were stolen from his brief They were in the names of Zongex and Ngoma companies. case. He reported to the Central Police Station but he had confirmation from those he supplied.

$\cdot$ . 7

He also supplied Itojo Hospital under Twayaga 1990/91. He had ider, the date was 19th June, 1990 and was from Mbarara. He was supposed to supply food stuffs and firewood. The letter of tender was supplied and was copied to Itojo Hospital and Twayaga Exhibit P.7.

$\frac{1}{\sqrt{2}}$

$\tilde{\chi}_1$

$\mathbb{R}^{\frac{1}{2}}$

まる ままる

$\mathcal{H}^{\mathcal{L}}$ $\mathcal{L}$

$\mathcal{L}^{\text{max}}$

$\mathbb{R}^2$ $\tilde{\gamma}^{\pm}$

He made agreements to supply those items with Kabale Hospital Kabale Nursing School and Itojo Hospital. The agreements were P.9 Exh. P10 respectively. $P.8$ Exh

He got LPO from Medical Superintendent of Itojo and Kabale Hospital and Principal Kabale Nursing Training School, Those were Dr. Nyehangane for Itojo, Ruhemurana for Kabale Hospital and Mr. Kariramaguru for Nurses School.

After delivering the foodstuffs he would get the delivery notes signed by the Medical Superintendent or Principal or food clerk ~ Hospital Secretary. After that they would issue invoices and a voucher could be made supporting the LPOs and invoice on the voucher. He would then attach the Income. tax clearance, trading licence and a copy certificate of the registration of the company supplying.

After making the voucher, behind it the Hospital Secretary, food clerk Medical Superintendent or Principal would certify that they had received the items and would stamp them. At the back of the voucher would be details of supplied items prices and $.0/8$ ..

amount - Then the vouchers would be taken to Ministry responsible for payment and when the cheque was; ready he would be called upon to collect the same.

'Then PW1 proceeded to give the figures of'amount of money claimed for each financial year.

The claim for 1989/90 and 90/91 financial year Kabale Hospital under Zongex Shs. 14,54-0,4-55/= . Nos of receipts given. .. . For Kabale Nurses School Zongex, he gave.the figure as shs.- 22,595,160/=.

For Itojo Hospital under Twazi supplies, he gave the figure • . as 17,902,580/= shillings. He gave the Nos of LPO under TwayaSa for Itojo LPO Nos. given he gave the figure of 18,125,625 shillings\* For Kabale Nurses Training School under Ngoma suppliers, he claimed 5,707.^60 shillings under LPO §184. ''

His evidence showed that he went to the Ministry of Health to claim his money in August, ¹⁹⁹¹ but was told that the vouchers and cheques were taken by IGO. He has not been paid\* He had all the purchasing orders. He had the originals Exh. P.1. His evidence further showed that because of none payment was embarrassed, his children have not gone to school. They have married prematurely and ⁱ wives have left him.

And that he had travelled from his home'(Kabgle) to Kampala 520 miles. He had to travel nearly every month to claim that money, at times ⁵ times. Among those times he used to sleep in HoSftls. He went to ZGG to find out '. Thy his vouchers were impounded and had been making statements to him/ •

When cross examined he replied that the companies were Individuals meaning that he manages the companies. He registered them and was the sole share holder of the supplying companies.

That an LPO is no proof of supply but to-indicate what **is** wahted by that institutions, until 1991 when the papers werd impounded\*, some payments were impounded when .they were preparing payments.- Some papers were stolen in his brief case but he got copies- of same from Entebbe He was following payments from Entebbe wherry he learnt that the papers -were taken by the . IfiGfifr .office- H© **was** travelling all these time\* because he was being pressed by people who had given him the money. In re-examination he replied that Proof of supply is delivery notes and vouchers.,

PW2 was Dr Nyahangane Medical Superitendant Itojo Hospital<and among his duties included to order for food and see their proper use in the Hospital. He started working ip. Tt^So Hospital since Ian\* 1985 as a itedicaJ Superitanda^rt# He is the Chairman of food committee, other were the Hospital Secretary, food clerk, Domestic Assistant and Senior Nursing officer. Those who want to supply them food items and fire wood apply through them to Area tender Board estc-h beginning^ -of financial year. Then the-area tender Board sends them. copies of approved tender (suppliers) they then .sign agre-em-enter on those tenders. -They sign on behalf of the Ministry of health and the Tender also sign.

That in 1989/1991" .he dealt with the plaintiff who applied through their Area Tender Board who awarded them the tender for Itojo Hospital. p

In 1989/90 Twanza suppliers signed Ex. 5 Food contracts agreement dated 2?the August 1989\* He also signed Ex\*P10 on 27/7/199.0 for the year 1990/91 food coptract agreement. It is also in the names of Twanza Suppliers, he then processed payment vouchers for payment of Item received to the Ministry ..... ... ./1O^V

Headquarters. On the voucher they attach a copy of the LPO delivery notes invoices and copy of authorities from area tender board.

The plaintiff contacted him about payment in 1991. He went to the Headquarters and contacted the Principal Accountant who told him that some of Twaza Suppliers Vouchers and some cheques had not been collected by staff of IGG up to the time the witness gave his evidence.

The plaintiff had not been paid yet what he supplied to Itojo. He could see his voucher he made LPO 616431. Inspector of Government He was questioned by the IGG, whether the food was delivered or not. They gave them the food ledgers to show that food under question was actually supplied. He was then called by the IGG to make a statement.

In cross-examination PW2 replied that the P/S Permanent Secretary was approving all the food they were ordering.

PW3 Dr. Pius Ruhemurana. His evidence was to the effect that from 1989 to 1992 he was a Medical Supurintendent of Kabale Hospital. He knew the plaintiff as one supplying food to the Hospital. The Ministry of Health Administrative structures the Nurses school is under the Hospital. When he went to the Hospital he found his predecessor had signed the food agreement. He was Dr. Tumwesigye. He signed one for 1990. He sigged one for Kabale Nursing School. The supplier was Zongex and another for Ngoma.

The next step was for the supplier to bring food basing on food agreements signed. He also signed the local purchase orders for those institutions.

He signed L. P. O, A618799 on 21/1/91 for $3,477,300/=$ in respect of Kabale Hospital. LPO A628203 Of 31/1/91 total sum was $792,000/=$

is for Zongex. ${\tt It}$ LPO A618790 dated 2/12/90 of $2,210,685/=$ It is with Zongex Company Also LPO A628202 of 12/2/91 Zongex 3,568,580/-LPO A610140 dated 6/5/90 Zongex $2,375,130/=$

$11$

LPO A610138 dated 3/4/90 Zongex $2,116,700/=$ Then there was LPO 618382 dated 25/6/90 $3,850,000/=$ Those were signed by Kariramaguru who died in 1990 Also another LPO dated $30/3/91$ signed by Sister Hellen of Kabale Hospital $2,378,100/=$ .

(L. P. O. for both Kabale Hopsital and Nurses Training School). Those Vouchers had never been paid and he learnt that they were confiscated by the I. G. G.

In re-examination he replied that the L. P. O.s were the order to bring in things and they used them whenever items had been brought. P. W.4 was Evishan Rwomushana, a food clerk in Kabale Hospital. His duties involved receiving food during normal working hours, weigh it and call witnesses like Medical Superintenden Nursing Officer, Hospital Secretary, Students and extra. He knew the plaintiff he used to supply them with food stuffs and fire-wood. He started in 1987 up to 1991. He signed on the vouchers to prove that the food was entered in the food lodger.

In xxxn he replied that he was a food clerk with the Nursing Training School.

The last witness called by the plaintiff was Samuel Frank Uder P. W.5 a Senior Assistant Secretary attached to Administration and of food stuffs Finance Ministry of Health. He testified that supply had always '< been tendered and each area has^ood ' Tender Board which accords the tenders on behalf of central tender board\* Upon the applications award to Hospitals or Schools, a successful tender'- could be awarded a tender. •

¹² -

The tenderer suppliers food in accordance with prices ^&lt; given by area tender Board. When the tender is issuing the ^e invoices the deliveries are signed by either Medical Superitendant or the tutor. The L. P. O.'s issued indicating what has been supplied and for what amount. Tlien vouchers are, m^de attaching all dqqumej3l^g a\_s\_\_gnumerated

The Plaintiff's vouchers were received by the Ministry for the years 1989 - 1991\* Many were processed and passed by the Auditor General who processed them and passed them to Commissioner Treasury of Accounts for payment. All of the cheques were made apart from one holding L. P^O 628180 dated 5/7/9"! of 95"!,POO/=. Before the cheques-were taken by the owner they were taken by the IGG« . The cheques were taken from the Ministry Head-quarters. The Ministry was informed that the IGG had received queries surrounding the bills and were going ^K to enquire from the Districts where the Institutions were **^I ' -U .** situated. **7**

; Having analysed the case for the Plaintiff^ I now proceed to consider-fhe first issue which was whether the Plaintiff supplied items food stuffs to Kabale and Itojo' Hospitals and Kabale Nurses Training School.

> According to the evidence, it was clear that the various companies which were solely owned by the Plaintiff were granted tender by the area tender board to supply food stuffs firewood to the two Hospitals of Itojo and" Kabale and to the Nurses Training school as reflected in exhibits P1 and P2 .as per the testimony of TW1. Exhibit P1 is a letter

> > ........../15-.

from the District Executive Secretary/Kabale on behalf of Kabale Tender Board appointment Twayaga as te&ior to provide food-stuffs and firewood for the financial- year 1988/89, whereas exhibit P2 was tender awarded to Zongex by the. DES Kabale to . supply foodstuffs to Kabale Hospital and Kabale Nursing School for the financial year 1.989/90\*

There is also no doubt that contract for the sale of food-stuffs was entered between Zongex and Kabale Nursing Training School as shown in exhibit P^. The letter was signed by the Head of the Institution who happened to .be the Principal Kabale Nurses Training School.

There was yet another contract for the supply of foodstuffs exhibit P4 signed between Zongex(PWI) and Kabale' Hospital dated 10/7/89\* Whereas exhibit P5 showed a contract for the supply of food stuffs between Twazza and Itojo . Hospital dated 27th August 1989..

Besides the contracts entered into between PW1-s Companies and Institutions there were documents/letters echoing the same cause, Exhibit P6 is a letter written by the District Executive Secretary addressed to the Secretary Central Tenden Board Kampala dated 2/8/89 and copied to Twaza Suppliers and Medical Superitendant. It is in connection with Tender for the supply of food stuffs to Itojo Hospital.

Ex. P7 was another letter addressed to the central tender Board from the District Executive Secretary Mbarara copied to Twayaga Kabale and the Medical Superitendant Itojo Hospital dated 1.9th. June 1990 recommending that Twayaga be appointed to tender for. supply of food stuffs to Itojo Hospital for the financial year 1990/1991•

PW2 and PWJ were both Medical Superitendants for Itojo

/14..

- ¹³ ' \*

• and Kabale Hospitals respectively, H2 and PWJ explained how they entered into the agreements with various companies belonging to PW1 for the supply' of food stuffs for their institutions.

These agreements were reflected in exhibits P8, P9 and exhibit P"lO.

Besides that there was the evidence of the Senior Assistant Secretary attached to the Ministry of Health PW5# He laboured to explain how tenders are awarded. That IPO is issued indicating what has been supplied and for what amount and that vouchers are made. He was consistent that the Plaintiff'^s vouchers were received by the Ministry 1989/9^. Many were processed, cheques were made but the voucher/delivery notes/and cheques were confiscated by the IGG who enquired about their genuiness. Up to now they had never been released as testified to by both PW1 and PWJ. The evidence of PW5 therefore shows that there was willingness on the part of the defendants Agents/Servants to meet the payment had \* the 'IG^ntervened and confiscated the voucher/delivery notes for investigation. This high handedness was • uncalled for, but the Plaintiff is not without a remedy. There are IPOS (Local Purchase Orders) signed by various institutions accepting deliveries of the food stuffs see evidence of PW2, PW3, and PW4. The fact that the IGG has not come up with a solution that alone could not deprive the Plaintiff the remedy to be paid all his dues. I therefore andwer in the affirmative the first issue that the Plaintiff (PW1) supplied the items of food stuffs to Kabale and Itojo Hosptifeal plus Kabale Nurses Training School for the financial years as testified to above by the Plaintiff and witnesses called by him.

The second issues was whether there was a breach of contract arising out of non payment. Before considering the second issue I was of the view that should have been another issue whether special damages had been proved. The evidence. of PW1 shows that he was claiming payments for the financial year 1989/90 and 1990-1991. He had produced local purchase orders fully stamped by the receiving institution.

.15

Kabale Hospital under Zongex

| L. P. O Nos. | 618799 | slips | $3,477,330/=$ | |------------|--------|-------|----------------| | | 610138 | | $2,116,710/=$ | | | 628203 | | $798,000/=$ | | | 618790 | | $2,210,685/=$ | | | 628202 | | $3,568,580, -$ | | | 6101.0 | | $2,375,130/=$ | | | | | 14.540 A35/= |

Kabale Nurses Training School. Zongex

| LPO Nos. | 618382 | $3,850,000/=$ | |----------|----------------------------------|----------------| | | 610174 | $450,000/=$ | | | 628177 | $2,378,100/=$ | | | 610173 | $3,249,500, -$ | | | 618798 | $4,487,700/=$ | | | 628180 | $950,000/=$ | | | 618376 | $3,520,680/=$ | | | | $22,593,160/=$ | | | $1$ en een TPO 618/100 $\Lambda$ | $1.2$ 000 100 |

Kabale Nurses Training under Ngoma &

$.116$

| | Itojo Hospital under Twaza | Summlinis | |----------------------------|----------------------------|----------------| | $_{\rm LPO}$<br>Nos. | $200 -$ | 4,275,96c' | | damage of the first to the | 599045 | $2,575,340/=$ | | | 599043 🐄 🕴 | $2,859,690/=$ | | | 440624 | 3,006,700 | | | 582895 | $2,616,270/=$ | | | 616431 | $2,548,480/=$ | | | | $17,902,380/=$ |

Under Twayaga for Itojo Hospit $1,931,000/=$ 599046 L. P. O Nos. $2,264,460/=$ 599041 $4,509,280/=$ 582594 599047 $2,450,460/=$ 599042 $3,414,845/=$ 599049 $3,555,580/=$ $18,125,625/=$

From "at has transpired above and in accular on with the receipt/IFOs produced, I am satisfied that the Plaintifi has specifically proved that the defendant had not paid him of the amount of money claimed by him for the food stuffs and firewood supplied to the various institutions i.e. Itojo and Kabale Hospital plus Kabale Nurses Training School.

The figure of Shs. 73,153,650 has been specifically proved though I am of the miew that there was in invatical error, the figure should have been 75.161.0000 plus 3,707,180/= which is equal to $76868780/-$ .

In paragraph 10 of the plaint, the Plaintiff averred that the confiscation and withholding of the documents in thing to

$...$ /17..

the items delivered was not done in good faith and therefore unjustifiable because the inordinate delay to release them caused financial loss embrassment, loss of earnings proper and had caused gross inconvenience and substantial loss. He prayed for special damages, travelling expenses from Nyakishenyi village 43 miles to Kabale then to Kampala to and from for 3 days. Then Hotel accomodation for only 3 days per week per $72.000/-$ . In fact he was claiming hotel accomodation and travelling expenses to the tune of Shs. 7,776,000/=.

The Plaintiff also claimed that as a result of the failure to pay him in time he incurred a lot of debts from various friends who were then of his neck as he had failed to meet his financial obligation. He mentioned friends like:-

owed him $7,000,000/$ = Mr. Kawera off Sealakandi Insurance $\mathtt{b}\mathtt{im}$ Matiya Kisembo of Kagadi wholesalers .000 non/ Lidyia Tumwesigye c/o Kabale Hospital $5.000$ 000/ Chris Gakibaya of Kabale Municipality $5,000,000/=$ One Kazemera $5,000,000/=$

The law regarding special damages is that apart from being specifically pleaded they must be strictly proved see Kyambadde Mpigi District Administration 1983 HCB 44 v. Professor el R Ssali vs. Isaya Besigye 1978 HCB Page 188.

In the instant case PW1 claimed that he travelled several times from home to Kampala while chasing his claim. Also claimed that he spent money when he booked accomodation in the He mentioned the names of two Hotels in this connection Hotel. PW1 unfortunately never produced any receipts to fortify his claims. He did not tell the court the mode of travel. Normally in Buses receipts are issued.

I do however appreciate the fact that PW1 must have travelled to Kampala while chasing his claims and I am agreeable with the submission of Mr. Kalule Luyombo that PW1 was not sleeping on trees but all the same he should have called some evidence to substabiate his claim, say in case of his being accomodated I am of the view that at least receipts are in the Hotel. usually issued when one books in the Hotel. He should have produced receipts. If these were not available he could have at least sought the support of those who booked him in various by giving evidence to that effect.<br>Hotel, Also he should have called some friends who advanced him. loans. M am of the view that the two claims must fail.

As to whether there was a breach of contract for the non payment. PW1 testified that he entered into agreement with various institutions for the supply of food stuffs i.e. Itojo and Kabale Hospitals plus Kabale Nurses Training School. Evidence has been led by PW3 and PW2 who were signatories to the said agreements, and the same witnesses plus PW4 testified to the effect that they received the commodities. PW5 testified that in fact the Ministry had processed some payments. Vouchers were prepared and even some cheques were issued, but they were confiscated by the IGG-for investigation and since them payment was withheld.

I am of the view that the various contracts for the supply of foodstuffs and firewood were breached and the defendant was liable to pay damages. A fter the deliveries the implication was that they had to honour the contract and pay. The contracts ware breached in August 1991.

The general principle here is that breach in whatever form it may take always entitled the innocent party to maintein an action for damages, but it does not always discharge the

$...19...$

contract see Law of Contract sixth Edition Cheshire and fitfoot Page 502.

The extent to which Plaintiff is entitled to demand damages for breach of contract was not fully considered by the commts until the decision in Hadlay v. Baxendala 1849 Excl P. 341 which provides:-

"Where two parties have made a contract which<br>one of them has broken, the damages which the<br>other party ought to receive in respect of such breach as may fairly and reasonably be considered either arising naturally i.e. according to the usual course of things, from such breach of contract itself orrsuch as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach of it." In his testimony the Plaintiff testified that because of

non payment he was embarassed. His children have not gone to school. They have married/prematurely and he had five wives and some had already deserted him.

I am of the view that the fact that the Plaintiff had his children left school prematurely that they got married prematurely and also that wives deserted him. Such course of things were not reasonably supposed to have been in the contamplation of the parties at the time they made the contract as the probable result of the breach. Those are not considered when awarding general damages for the breach. However, I am of the view that ... the parties had in mind was that if the contract was breached the Plaintiff would be embarrassed and get very much inconvenienced and those who advanced him the loans would be on his neck would demand payment of the loan and interest. The Plaintiff did not call any of his financiers to come to court and give evidence though he had the guts to mention them in the pleadings.

The Plaintiff had requested for interest of 44% on the

He did not give reasons why the interest should decretal sum. not be at Court rates.

However, in the absence of evidence to contradict his testimony, I find that the Plaintiff had proved his case on a balance of probabilities and because of that I make the following awards:-

- (1) Shs. $73,153,650/$ = (Seventy three million Shillings, and fifty three thousand and six hundred and fifty) being money the Plaintiff spent on food stuffs and firewood he delivered to the various institutions. - (2) He is awarded general damages of 2 million Shillings (2,000,000) for breach of contract. - (3) The Plaintiff failed to specifically prove special damages in connection with his travel and Hotel<br>accomodation when he went to Kampala to demand<br>payment. But the court was satisfied this at least<br>he must have travelled to Kampala and had to sleep<br>somewhere. The court woul of $400,000/$ = shillings. - The Plaintiff is awarded interest at the decretal $(4)$ sum at court rates with effect from the date of the breach August 1991 till payment in full.

$(5)$ The Plaintiff is also awarded costs of this suit.

> $sM_{11}... N$ I. Mukanza JUDGE $9/2/94$

Mr. Dusabe for the defendant present, &

the university

Mr. Kalule Luyombo for the defendant present. Court: Judgement is read and signed.

> $\Delta U_{\rm c}$ I. Mukanza JUDGE $9/2/94$