[2012] UGCommC 207

#### THE REPUBLLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL DIVISION)

### HCCS NO. 406 OF 2009

#### SHAILESH RUPARELIA PLAINTIFF

#### **¹⁰** VERSUS **^L**

ISMAIL KARMALI }

**2.** DEFENDANTS VICTORIA TRADING CO. LTD }

3. PAYLESS SUPERMARKET LTD }

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#### BEFORE: THE HON. MR. JUSTICE GEOFFREY KIRYABWIRE

## JUDGMENT:

**20** The plaintiff filed this suit against the defendants for the recovery of US\$ 93,873.13. The claim was based on money advanced to the defendants by the plaintiff.

On the 6th of September 2010 the parties agreed to a partial settlement of the case and a Consent Judgment in the sum of US\$ 80,000 was recorded by the court. The Consent Judgment left HCCS No. 406 or 2009 and MA No. 471 of 2010 between the parties still active because the parties wanted to continue to do a reconciliation of accounts. It is important to note that this file was originally before another Judge when this Consent Judgment was entered.

**30** When the file was re-allocated to me the parties on the 8th February 2011 by consent withdrew MA No. 471 of 2010 with no order as to costs. On the same day court entered judgment on admission on interest being US\$ 3,873.18. Interest of *2%* p.a. was awarded by court on the sum of US\$ 3,873.18 until payment in full.

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All parties then agree that court makes a final Judgment on general damages to close the outstanding dispute not covered by the original settlement of the 6th September 2010. The parties filed written submissions. At this stage the plaintiff was represented by Mr. Joel Olweny while the defendants were represented by Mr. Jimmy Muyanja.

Counsel for the plaintiffsubmitted that the plaintiff be awarded exemplary and punitive general damages. He submitted that general damages are such as the court will presume to be the direct, normal or probable consequence of the act complained of. In this regard he referred me to the case of Storms vs Hutchinson [19501 AC 515.

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He further.submitted that the rationale for damages is that the plaintiffshould be placed in the same position he was before the damage was caused. Here counsel for the plaintiff relied on the case ofJ. Ganafa vs Baguma [1982] HCB 142.

15 He finally submitted that with regard to general damages there is no requirement for specific proof and that general damages fall within the discretion of court, taking into account the facts and the circumstances of the plaintiff in society. In this regard he referred me to the case of Fredrick K, Zzabwe vs Orient Bank & 5 Others CA 4 of 2006 and A. K. Oils & Fats (U) Ltd vs Bidco (U) Ltd HCCS No. 715 of 2005,

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Counsel for the plaintiff however did not submit to court on the actual quantum to be awarded save for outlining some ofthe principles for awarding general damages.

25 30 Counsel for the defendants on the other hand submitted that the whole transaction between the parties was invalid as it offended Section 4 of the Financial Institutions Act (herein after referred to as the FIA), as it prohibits unlicensed business. He submitted that since the plaintiff was not a licensed person under the FIA 2004 then the transaction was contrary to public policy and therefore was unenforceable. In this regard he referred me .0 the cases of Regazzani vs K. C. Sethia [19561 ¹ All ER 229 and Kisugu Quarries Ltd vs Administrator General [199911 EA163.

He further submitted that no reconciliation was ever done as per paragraph 2 of the Consent Judgment, so there can be no basis for awarding general damages as that left the matter ambiguous and uncertain. In this regard ¹ was referred to the cases of


# Robinson vs Thames Mead Park Estates Ltd [1947] ¹ AH ER 366 and Mitchener vs Equitable Investments Co. Ltd [1938] ¹ All ER 303.

I have addressed myself to the submissions of both counsel for which I am grateful. I agree with principles submitted by counsel for the plaintiff regarding general damages. I however do not agree that the principles relating to general damages also apply to exemplary and punitive damages which he also prays I award. Exemplary and punitive damages have to be specifically pleaded separately and argued according to the tests provided by the law which are different. I shall therefore not award exemplary and punitive damages. Counsel for the plaintiff also did the court a disservice not to address the issue of quantum.

As to submissions from defence side, I with the greatest of respect disagree that this transaction is governed by the FIA 2004. This is really an after thought. This transaction was a simple loan between individuals, which is not prohibited by the law.

As to the reconciliation that was a matter for special and not general damages. General damages are for breach of contract. There were no liquidated damages so as to make the agreement upon them ambiguous or uncertain.

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All in all it is left to the discretion of court to award general damages taking into account all the circumstances of the case. Most of the disputed areas were resolved by consent save for general damages. I hereby therefore award amount of US\$ 10,000 as general damages. This concludes the head suit within the meaning of Section 33 of the Judicature Act. I will award interest on that amount at 2% p.a. from today.

Geoffrey Kiryabwire JUDGE

30 19/01/2012.

**AO.**