[2013] UGHC 263

## **THE REPUBLIC OF UGANDA**

# IN THE HIGH COURT OF UGANDA AT KAMPALA

#### (CIVIL DIVISION)

#### CIVIL SUIT NO. 69 OF 2009

MARIE STOPES UGANDA LTD::::::::::::::::::::::::::::::::::::

#### **VERSUS**

SECURITY GROUP (U) LTD::::::::::::::::::::::::::::::::::::

### BEFORE HON. MR. JUSTICE J. W. KWESIGA

#### **JUDGMENT**

١O The Plaintiff represented by M/s Magezi, Ibale and Company Advocates sued the Defendant represented by M/S Kasolo & Khiddu Advocates seeking recovery of Sh. $52,353,211/=$ as special damages for breach of guarding contract, general damages and costs of the suit. It is claimed that the Defendant contracted to provide security services to the Plaintiff under a written contract and $\;\;\mathsf{C}\;\;$ on 8^th April, 2008 while the Plaintiff's premises were guarded by one Okello France, employee of the Defendant the premises were broken and computers and other electrical equipments worth into Sh.52,353,211/= were stolen and damaged. The guard could not be traced and his gun was found at the broken into premises that he had been guarding. The Plaintiff contends that the Defer vicariously liable for the acts of Okello Franco (see the

The Defendants' written statement of Defence denies the Liability and further states that it complied with the terms of the contract, the

. Defendant's guard was not implicated in any acts of burglary or breaking in the premises or connivance with whoever broken in the premises and that there was no negligence and the Defendant is not vicariously liable.

The parities agreed on three issues for trial namely;

- (i) Whether the defendant's agent or servants' actions amounted to negligence. - (ii) Whether the defendant is vicariously liable for the actions of its agent or servant.

(iii) What remedies are available to the successful party? IO

The Plaintiff called two witnesses through whom a number of other hand called one witness and closed its case. The parties requested to file written submissions and these will be examined to answer the agreed issues listed above. The joint scheduling, memorandum recorded the agreed facts which are summarised as facts constituting the cause of action as follows: exhibits were admitted and closed its case. The Defendant on the

contract with the Defendant to guard other premises on hour basis. The Plaintiff entered into a plot 1020 Kisugu, Makindye Division on a twenty four The service order contract dated 31st May, 2002 was admitted as DE 1. On 8th April, 2008, during night hours the Defendant deployed Okello Franco armed to guard the premises and thugs broke into the premises stole and damaged computers and electrical goods. The following morning the main gate and


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. doors were found open, there was no guard on duty and the guard s gun was abandoned at the premises. He never reported anything to the Police or any other authorities. That the Plaintiff suffered loss, special and general damages. In support of its claim the Plaintiff, with consent of Defence, tendered the following exhibits.

- (1) The contract of service admitted as PE T - **th** April, 2008 notifying the Defendant of the robbery and loss 8th April, 2008. (2) PE.2 Plaintiff's letter to Defendant dated ¹¹ - (3) **i-o** stolen items and their values. PE.3 Insurance claim dated 7th May, 2008, listing several - (4) PE 4 Plaintiff notice of intention to sue the Defendant for Sh. 6,384,391/=. - (5) PE 5 The Plaintiff pursuant to its insurance Policy No. 061322751 with AIG Uganda Ltd. Made a claim settlement for the burglary in issue in the sum of Sh. 4,628,799/=. Examination of the documents constituting Exhibit P. E 5 shows that the Plaintiff claimed sh. 52,353,2117=. The Assessed "lost value was"found"to be Sh. 5,260,859/= and after adjustment, less 10% of the Policy excess, the paid sum was Shs. 4,628,799/=. - (6) E6 is the Insurance Survey which states that the total value (claim) was 52, 353,211/= because not all the listed items were scheduled covered items, the plaintiffs insurance paid only 4,628,799/=.

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Considering the above evidence this court is satisfied that on 8th April, 2008, burglary was committed on the plaintiffs premises at plot 1020 Kisugu, Makindye Division and the Plaintiff suffered loss which has been proved by Exhibit PE 6 to have been valued at Sh. 52,353,211/= At the material time, the Defendant had been hired or contracted to provide security for the premises for twenty four hours. The Defence witness DW.1 Robert Nturanabo, told court the Defendant had deployed a guard and that when the incident was reported, he found that the guard had abandoned the gun in the guardhouse and he disappeared. He admitted that no suspect was arrested, the guard did not report to Police or to any authority or make alarm which suggests that he was party to or connived with the burglary as a whole. The Defendant relied on the contract to compensate the Defendant with only Sh. 800,000/= which the Plaintiff rejected as insufficient compensation. The Defendant's Advocates, in the final submissions, brought to my attention provisions of a photocopy, reverse side of the contract form which is a disclaimer Of- liability for actions committed by its guards while on duty and'IrmTtingdts liability to 800,000/=. ^I have noted-the contents of Defence Exhibit D2 which is addressed to the Plaintiff as follows; // *without admission of liability, we are prepared to make an ex-gratia offer of Sh. 800,000/= in full and final settlement ofyour claim. "*

The standard form terms and conditions do not appear on the original contract serial no ⁴⁴⁴⁸ dated ³¹" May, 2002, They appear reverse of contract form dated 11,h April, 2008 (After the on the

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theft). The Plaintiff did not sign this page as depicted by the photocopy and can not be bound by these contents.

I D view evidence he had been attacked and overpowered. In my Plaintiff adduced evidence that established connivance the evidential burden of proof ^I appreciate that D2 D3 and D4 was meant to prove limitation of liability of the Defendant to Sh.800,000/= or NIL- liability, however these can only be binding if the terms were signed by both parties. ^I appreciate the holding by Lord Denning (as he then was) in CURTIS VS CHEMICAL CLEANING AND DYEING CO. LTD (1951) ¹ ALLERS 631. That in absence of fraud and misrepresentation a party to the contract is absolutely bound by its terms he or she executed and or signed. In the instant case there is no signature of the plaintiff on the exempting terms. Therefore the plaintiff can not be held bound by clause 4 of the service order contract. The important term that the plaintiff signed was to pay the monthly fee indicate in the form for the Defendant to *"Protect the property of the client located at Muyenga Plot 1020 Kisugu".* The Plaintiff has the burden to prove on balance of probabilities that the Defendant's servant, agent or employee failed to protect the Plaintiff's property whether by acting negligently of-by participating in the burglary or theft of the items complained'ofj^The Plaintiff adduced'sufficient evidence that by virtue of the contract the Defendant had a duty to guard the premises for 24 hours and to protect the Plaintiff's property. On 8th April 2008 th© D©f©nd©nt s Gusrd ©bsndoncd th© gun ©nd disappeared. He did not report to the Police, to any authority or his employer in case the moment the of negligence or

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It is my vicariously liable. ' shifted to the Defendant to show that it took deligent steps to protect the client s property. For instance there is no evidence that the Defendant as the principal had systems or practice of supervising or patrolling its guards. There is no evidence that there was any investigation carried out to trace Okello Franco or to establish if anything, contrary to the Plaintiffs version happened. This leaves the Plaintiffs version of connivance or participation in the burglary proved by the circumstantial evidence on record. If Okello had not been party to the burglary, he would have made alarm or escaped to report to Police. The Defendant's attitude of not making deligent investigations aggravated the situation. view and ^I hold that the agent, servant or employee of the Defendant failed to protect the Plaintiffs property and the Defendant is

At this stage what remains to be resolved is whether and what remedies are available to the Plaintiff? The Plaintiff proved that the property lost was worth Sh.52,353,211/= as particularized in Plaintiff's exhibit P.6. on the other hand Plaintiff s exhibit (P.3) shows thaHlieWntiff was partly compensated by M/S AIG Uganda LTD in the sum of Sh.4,628,799/= (see P.3, P.4 and P.5). It follows that Plaintiff's compensation would be less what was received, that is to say, Sh. (52, 353,211-4.628,799/=) which leaves Sh 47 724,412/= as the special damages proved.

pray The Plaintiff mention general damages in the plaint in passing and neither did it lead evidence to justify general damages and did not for general damages among the prayers in the plaint and

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remove » therefore ^I find no basis to award any. The Plaintiff prayed for interest at 25% per annum from 8th April, 2008 up to payment in full. The Plaintiff did not lead evidence to justify 25% per annum from date of the cause of action up to payment in full. In principal the Plaintiff is entitled to interest from the date the payment was due. In my view 25% would be quite punitive. ^I find that interest at 12% per annum from the 8th day of April, 2008 until full payment is a fair interest. The Defendant shall pay the plaintiff costs of this suit. To any doubt the plaintiff is given judgment against the Defendant for the following reliefs;

- **(a)** Special damages of Sh. 47,724,412/= (Fourty seven million seven hundred and twenty four thousand four hundred and twelve only.) - (b) General damages, NIL. - (c) Interest on the above sum in (a) at 12% per annum from 8th April, 2008 until payment in full. - (d) Costs of this suit.

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**//J** .day of Marpn^^ Dated at Kampajajhis ^L

J. W. KWESIGA JUDGE

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