Wakilii

AK-PA Tekstil Ihracat Pazarlama v DXP Enterprises Limited & Another (Civil Suit 1246 of 2023)

High Court · [2024] UGCOMMC 61 · 2024 Judgment for Plaintiff AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for declaration of ownership and re-exportation of goods; proceeded ex parte against 1st Defendant following failure to enter appearance
Decision
Plaintiff declared owner of goods; 2nd Defendant ordered to release goods to Plaintiff for re-exportation; permanent injunction granted against 1st Defendant

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the Plaintiff retained ownership of consigned goods where the buyer failed to pay the purchase price within the agreed period. An unpaid seller does not lose lien under Sale of Goods and Supply of Services Act s.54(2)(b) until the buyer or agent lawfully obtains possession with the seller's consent or in fulfilment of consideration. Where goods remain in transit and no payment has been made, property does not pass to the buyer and the unpaid seller retains right of stoppage in transit under s.55. Plaintiff awarded general damages and costs against 1st Defendant; claim of fraud not proved to required standard.

Outcome

Plaintiff declared owner of goods; 2nd Defendant ordered to release goods to Plaintiff for re-exportation; permanent injunction granted against 1st Defendant

Facts

The Plaintiff, a Turkish company, contracted to supply 900 drums of Hydrogen Peroxide 50% on 100 pallets to the 1st Defendant through Nicholas Kevin Brooks of Universe Holdings Limited. The agreed price was USD 54,990 payable within 60 days from the Bill of Lading dated 31 May 2023. Plaintiff dispatched the goods and documents of title to the 1st Defendant's agent in July 2023. The goods arrived in Uganda and were held at Lexus ICD Bond by the 2nd Defendant (Commissioner Customs) for tax clearance. The Plaintiff never received payment and could not reach either Nicholas Kevin Brooks or the 1st Defendant's director Aniwal Sebuguzi despite repeated attempts. The 1st Defendant failed to enter appearance or file a defence. The Plaintiff obtained interim orders restraining the 2nd Defendant from releasing the goods to the 1st Defendant and sought declaration of ownership and re-exportation.

Issues

  1. Who is the lawful owner of the goods in Container No. TCKU 3551435, TLLU 2076486, CAIU 3825645, APZU 2104317 and CMAU 1704014?
  2. What are the remedies available for the parties?

Orders

  • Plaintiff declared the owner of the consignment comprised of 100 pallets and 900 drums of Hydrogen Peroxide 50% in Container No. TCKU 3551435, TLLU 2076486, CAIU 3825645, APZU 2104317 and CMAU 1704014 vide Bill of Lading ISB 1290524 currently situated at Lexus ICD WO545 in Namanve Industrial Park.
  • 2nd Defendant ordered to release the consignment to the Plaintiff and/or its duly appointed agent to enable re-exportation of the consignment to the Plaintiff Company.
  • Permanent injunction granted against the 1st Defendant restraining them, their agents, and/or any other party claiming through them from clearing, obtaining or attempting to obtain or retaining any documentation in their possession of the consignment.
  • Plaintiff awarded general damages of USD 10,000 against the 1st Defendant.
  • Plaintiff awarded interest of 6% per annum on the general damages from the date of judgment until payment in full.
  • Plaintiff awarded costs of the suit against the 1st Defendant; between Plaintiff and 2nd Defendant each party to bear their own costs.

Rules and key headnotes

Ex Parte Proceedings — Failure to Enter Appearance
A defendant who fails to file a defence puts himself out of court and no longer has any locus standi and cannot be heard.
Sale of Goods — Passing of Property — Payment as Condition
Under Sale of Goods and Supply of Services Act s.25(1) and (2), property in goods passes to the buyer at such time as the parties intend it to pass, having regard to the terms of the contract and conduct of the parties. Where the contract provides that payment is a condition for transfer of property and no payment is made, property does not pass to the buyer.
Sale of Goods — Unpaid Seller's Lien — Loss of Lien
An unpaid seller loses his lien or right of retention under Sale of Goods and Supply of Services Act s.54(2)(b) only when the buyer or his agent lawfully obtains possession of the goods. The word 'lawfully' implies that possession was obtained with the seller's consent or in fulfilment of consideration. Where possession is not obtained lawfully, the seller's right of lien is not affected.
Sale of Goods — Stoppage in Transit
Under Sale of Goods and Supply of Services Act s.55, when the buyer of goods becomes insolvent or fails to pay, the unpaid seller who has parted with possession has the right of stopping goods in transit and resuming possession as long as they are in the course of transit and may retain them until payment or tender of the price. Transit does not end until the buyer or agent obtains delivery at the appointed destination.
Formation of Contract — Multiple Transaction Documents
A contract need not be a single paper document. A series of transaction documents outlining the essential ingredients of a contract may together constitute a binding contract. Whether there is a binding contract depends on what was communicated between parties by word or conduct objectively considered, and whether that leads to a conclusion that they intended to create legal relations and agreed upon essential terms.
Fraud — Standard of Proof
Fraud must be intentional, dishonest and deliberate and must be distinguished from negligence. Fraud must be proved strictly, the burden being heavier than the balance of probabilities generally applied in civil cases — it must be very clearly established. It is not enough to allege fraud; it must be established to the required standard.
Breach of Contract — General Damages — Assessment
Under Contracts Act s.61(1), where there is a breach of contract, the party who suffers is entitled to receive compensation for loss or damage. General damages are such as the law presumes to be the direct natural or probable consequence of the act complained of. Only claims of damages that are proximate are attainable; damages that are too remote are not awarded.

Legislation cited (17)

Cases cited (16)

  • Kanji Devji v Damodar Jinabhai & Co (1934) 1 EACA 87
  • Kulagira Geoffrey v Lynks Mineral Resources Ltd (Civil Suit No. 621 of 2014)
  • Guaranty Trust Company of New York v Hannay and Company Limited [1915] 2 KB 536
  • Miller v Minister of Pensions [1947] 2 All ER 372
  • Greenboat Entertainment Ltd v City Council of Kampala (Civil Suit No. 0580 of 2003)
  • RTS Flexible Systems Ltd v Molkerei Alois Muller GMBH & Co KG [2010] 2 All ER
  • Karim Moding v Sulaiman Kabega (HCCA No. 35 of 2015)
  • Frederick JK Zaabwe v Orient Bank and Others (SCCA No. 4 of 2006)
  • Kampala Bottlers Ltd v Damanica (U) Ltd (SCCA No. 22 of 1992)
  • Edward Owen Engineering Ltd V. Barclays Bank International Ltd [198] 1 QB
  • Uganda Revenue Authority v Wanume David Katamirike (SCCA No. 3 of 1993)
  • Ronald Kasibante v Shell Uganda Ltd (HCCS No. 542 of 2016)
  • Robinson v Harman (1848) 1 Exch 850
  • Stroms v Hutchinson [1905] AC 515
  • Tate & Lyle Food and Distribution Ltd v Greater London Council and Another [1981] 3 All ER 716
  • Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All ER 873

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

AK-PA Tekstil Ihracat Pazarlama v DXP Enterprises Limited & Another (Civil Suit 1246 of 2023) [2024] UGCommC 61 (22 March 2024)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.