[2024] UGCommC 359

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA [COMMERCIAL DIVISION] **CIVIL SUIT NO.440 OF 2017**

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## UZZI PHILLIP T/A UZZI PHILLIP

# AND FAMILY GENERAL ENTERPRISES:::::::::::::::::::::::::::::::::::

## VERSUS

<table>

CABINET CRAFT LIMITED::::::::::::::::::::::::::::::::::::

$25$

# **BEFORE: HON. LADY JUSTICE ANNA. B. MUGENYI**

# **JUDGMENT**

The plaintiff brought this suit under Order 36 of the Civil Procedure Rules (CPR) for recovery of Ugx 80,367,500/= (eighty million three hundred sixty-seven hundred five hundred) being the claimed total amount due and owing to the plaintiff by the defendant for supply of timber and the costs of the suit.

The facts giving rise to this case are that the plaintiff and the defendant entered into an oral agreement for the supply of timber. Under this agreement, the plaintiff was required to supply the defendant with timber upon which the defendant would grade the timber and price it in line with their price list which money would then be paid to the defendant. The plaintiff made a number of deliveries which were received and acknowledged by the defendant upon which part payment was made to the defendant.

The plaintiff and the defendant later agreed that the defendant would order a mobile sawmill machine for the plaintiff through their sister company Standard Tools 30 company.

It is the plaintiff's case that they supplied the defendant with timber worth Ugx 145,467,500/= and the defendant only made part payment of Ugx 65,100,000/= thereby leaving an outstanding balance of Ugx 80,367,500/= unpaid. The plaintiff

- further contends that by virtue of their agreement, the balance of the money was 35 meant to be used as payment for the machine they had ordered from the defendant however the said machine was never delivered to them. The plaintiff thus prayed for a refund of the outstanding amount and in the alternative the delivery of the machine. - The defendant disputed the price of the timbers delivered and contended that the total value of the timber was Ugx 105,636,759/ $=$ upon which the defendant paid Ugx 40 73,100,000/= thereby leaving an outstanding balance of Ugx 32,532,796/=. The defendant further averred that the timber delivered by the plaintiff was of a mixed variety both in sizing and in grading all varying from grade A to C thus their pricing. The defendant concluded by stating that the machine ordered by the plaintiff has - been in the defendant's possession for over sixty days and has not been delivered 45 because the plaintiff has not met the requisite 50% deposit required and prayed for the suit to be dismissed with costs

When the suit came up for hearing, judgment on admission was entered against the defendant for Ugx 32,536,796/= and the trial proceeded for the balance of Ugx 47,830,704/= (forty-seven million eight hundred and thirty thousand seven hundred and four cents shillings).

During the hearing of this matter, the plaintiff produced one witness, Mr. Uzzi Phillip (PW1) and the defendant equally produced one witness, Mr. Allan Jamani $(DW1)$ .

#### **REPRESENTATION** 55

The plaintiff was represented by M/s Greystone Advocates whereas the defendant was represented by M/s Frederick Francis & Associates Advocates.

## **SUBMISSIONS ON ISSUES**

Counsel for the plaintiff submitted that the pricing sheet adduced by the defendant is a fabricated document with falsehood intended to deny the plaintiff his right to claim the outstanding balance. Counsel submitted that the pricing sheet was an afterthought since it does not tally with the defendant's averments that the total supply was worth Ugx 105,636,300/ $=$ and the balance they know is Ugx 32,000,000/ $=$ . The plaintiff averred that the defendant manipulated the price lists in a bid to reduce the money owed to them.

Counsel for the plaintiff further submitted that the plaintiff produced invoices under which he claims indebtedness of the defendant and the defense on the other hand

testified that the invoices were only issued upon delivery of the timber, grading and pricing by them. Counsel stated that the defendant does not dispute the total number of timber supplied and therefore is indebted to the plaintiff.

Counsel for the defendant submitted that the defendant had a standard pricing list for each grade upon which the pricing of different grades of timber was arrived at before payment was made to the plaintiff who does not dispute this kind of arrangement between parties. Counsel submitted that though the plaintiff avers that

their pricelist is fabricated and an afterthought, they have not adduced any $75$ corresponding grading list to counter the defendants grade price lists.

Counsel for the defendant submitted that the defendants evidence shows consistency in adhering to the pricing set in the pricing list of 12/02/2024 with bigger pieces fetching higher prices and smaller pieces fetching lower prices which is not the case with the plaintiff's subsequent grading list.

## **JUDGMENT**

I have listened to the testimonies of the witnesses and addressed my mind to the pleadings and submissions of the parties in this matter. During the scheduling conference, the following issues were raised by the parties for resolution by this Court as below:

- 1. Whether the defendant owes the plaintiff Ugx 47,839,704/= (Forty-seven million eight hundred thirty-nine seven hundred four shillings) - 2. Remedies available to the parties - In judiciously determining the Issues above, this Court will bear in mind the 90 following provisions of law:

Section $101(1)$ of the Evidence Act provides that:

"Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts must prove that those *facts exist.* ''

This implies that he who alleges has the burden to prove and the standard of proof is on a balance of probabilities. In this case the burden lies on the plaintiff to prove that the defendant is indebted to him to the amount claimed.

Section 103 of the Evidence Act provides that:

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"The burden of proof as to any particular fact lies on that person who wishes 100 the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person."

## Issue 1

## Whether the defendant owes the plaintiff Ugx 47,839,704/= (Forty-seven million eight hundred thirty-nine seven hundred four shillings) 105

It is not in dispute that the parties entered into an oral contract for the supply of timber. What is in dispute is the amount of Ugx 47,839,704/= claimed by the plaintiff as the balance owed for deliveries made since the defendant contends that he is not indebted to the plaintiff.

It is also not in dispute that the grading and pricing of the timber was a duty and 110 obligation of the defendant.

The evidence on record contains two different price lists one adduced by the plaintiff who claims that the same was issued to them by the defendant evidenced by delivery notes, proforma invoices and payment receipts and the other adduced by the defendant evidenced by payment vouchers and price lists. There is a variance

between the two price lists as regards the cost of the timber.

This therefore raises the question as to who has the right price list that this Court should rely on to determine whether the defendant is indebted to the plaintiff to the amount claimed.

This Court acknowledges that the dispute between the parties is concerned with how 120 much is owed to the plaintiff if any.

It is fundamental in this case to note that the parties agreed that it was the duty of the defendant to generate the price list upon delivery of the timber and the plaintiff would then create an invoice in line with the price list given to him by the plaintiff.

- The delivery marked the 13^th.02.2015 and 12^th.02.2015 in the plaintiff and defendant 125 trial bundles respectively was fundamental in establishing the pricing and the relationship between the parties. In the price list adduced by the plaintiff, he contends that he supplied 99 pieces of wood while the defendant contends that he supplied 190 pieces of wood. The prices for the different grades varied in both price lists. - An inconsistency was duly noted in the plaintiff's price list of 13^th.02.2015 where 130 his proforma invoice indicates that 14 pieces of class A mvule timber measuring

8x4x7 valued at Ugx 980,000 were delivered. The plaintiff's price list did not contain this information yet the same was captured in his proforma invoice. When the plaintiff was asked to explain during cross examination how his proforma invoice captured information which was not in the price list, he kept quiet and did not answer.

During the cross examination of PW1, counsel noted the delivery of 17^th.11.2015 where 26 pieces of timber were delivered priced at Ugx 2,322,500/= and on the same date 218 pieces of timber were captured on the price list to have been made at Ugx 13,483,500/=. The plaintiff(PW1) explained this and contended that the only delivery that he notes is that of 26 pieces and that the supply of 218 pieces was only done on the $1^{st}$ .01.2016.

DW1 pointed out the inconsistencies in the price list adduced by the plaintiff which this Court took note of as follows:

- Page 12 of the defendant's supplementary trial bundle (DSTB) contains a price 145 $i_{\cdot}$ list prepared by the plaintiff and number 4 contains grade C timber measuring 12x5x4 valued at Ugx 20,000 each. One piece of the timber was delivered but the plaintiff valued the same at Ugx 40,000/= which is Ugx 20,000/= extra. - ii. On the same page item number 9 contains grade C timber measuring 8x5x4 and each is valued at $Ugx 30,000/$ =. This timber is seen to be grouped twice in the 150 same price list (item 5 & 9) which is very unlikely to happen. Secondly the timber measuring 8x5x4 is shorter and smaller than that measuring Ugx 12x5x4 yet it was charged more than the bigger ones. - iii. The price list of 16^th /10/2015 on page 13 of the DSTB contains different sizes of 2X5X7 and 12x5x8 yet both are charged at the same rate. - iv. Contradictions are also seen in the plaintiff's price list of 17^th.11.2015 and 20^th.03.2016 where class C timber of sizes 12x4x4 and 12x4x2 were all charged at Ugx 40,000/= yet one is shorter than the other. - v. Contradictions are also seen in the plaintiff's price list of 4-10^th .09.2015 and 26^th.01.2016 where class C timber of sizes 12x5x4 were priced differently with Ugx 20,000/= and Ugx 40,000/= respectively. - vi. On the price list of 10^th.07.2015, the plaintiff's price list contains delivery of 730 pieces of class C timber valued at Ugx 13,999,000/ $=$ yet the defendant's price

list dated the 14^th.07.2015 contains the same delivery but it is valued at Ugx $9,000,000/=$

Inconsistency is seen in the price list adduced by the plaintiff as seen above with shorter sizes of timber in some instances priced higher than the smaller sizes, different sizes of timber costing the same price, same sizes of timber priced differently etc.

- DW1 testified that if at all they intended to cheat the plaintiff, would some of their 170 costings be more than that of the plaintiff. He pointed to the price list on the 4- $10^th.09.2015$ where timber measuring 12x5x8 class A was priced at Ugx 90,000/= by the plaintiff yet the defendant priced the same at Ugx 106,185. - Consistency was seen in the price list adduced by the defendant with longer and bigger grades of timber fetching higher prices than the shorter ones. This was seen 175 all across its price lists. Where new sizes were delivered in new batches, the pricing is seen to be uniform with larger ones fetching higher prices than the smaller ones. This can be seen on page 2 of the DSTB where the plaintiff's pricing list of 16^th of October 2015 one piece of timber size $12x5x8$ grade A is priced at Ugx 90,000/= similar to that of $12x5x7$ which is shorter. 180

The corresponding price list of the defendant on page 11 of the DTB shows grade 12X5X8 was at Ugx 106,188/= while the smaller of $12x5x7$ is at 92,915/= which is higher and is seen to be consistent throughout.

The plaintiff testified that he used to obtain the price list from the defendant's store man called William but he did not prove this. While the plaintiff alleges that the 185 price list adduced by the defendant is a forged one that was fabricated, he did not adduce any evidence to prove the same. He did not lead evidence to show the inconsistencies with the defendant price list so as to discredit it.

He equally failed to explain the inconsistencies that were pointed out with the price list he adduced in Court. He therefore failed to discharge the duty to show that the 190 defendant is indebted to him on a balance of probabilities.

With the implied condition in the contract that the price list would at all times only come from the defendant, I find that the defendant did execute its evidential burden to prove that the price list they adduced in Court is the correct list.

For the above reasons, this Court finds that the defendant company is not indebted 195 to the plaintiff and the plaintiff is not consequently entitled to any remedies sought in its claim.

This Court therefore dismisses the plaintiff's claim with costs to the defendant.

HON. LADY JUSTICE ANNA B. MUGENYI

DATED................................... 205 . . . . . . . . .