AK - PA Tekstil Ihracat Pazarlama v DXP Enterprises Limited and Another (Civil Suit No. 1246 of 2023)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

Held that where goods sold under a contract for sale stipulating payment within 60 days from the date of the Bill of Lading remain unpaid, property does not pass to the buyer. The unpaid seller retains ownership and an unpaid seller's lien over goods still in transit held by a third party for customs clearance. The seller may stop the goods in transit and obtain re-export orders. Fraud claim failed for lack of proof to the required standard.

Outcome

Plaintiff declared owner of consignment; re-export ordered; permanent injunction granted against 1st Defendant; damages and interest awarded 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 at USD 54,990, payment due within 60 days from the Bill of Lading dated 31 May 2023. The Plaintiff dispatched the goods and sent documents of title to the 1st Defendant via one Aniwal Sebuguzi in July 2023. The goods arrived in Uganda and were held by the 2nd Defendant (Customs) at Lexus ICD Bond in Namanve Industrial Park for tax clearance. Four months after the payment deadline, the Plaintiff had received no payment. Efforts to contact Nicholas Kevin Brooks of Universe Holdings Limited (who had placed the order on behalf of the 1st Defendant) and the 1st Defendant's director proved futile. The Plaintiff obtained interim orders restraining release of the goods and filed suit for declaration of ownership, re-export orders, and damages. The 1st Defendant failed to enter appearance despite proper service.

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

• The Plaintiff is 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.
• The 2nd Defendant is ordered to release the consignment to the Plaintiff and/or its duly appointed agent to enable re-exportation.
• A permanent injunction 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.
• The Plaintiff is awarded General Damages of USD 10,000 against the 1st Defendant.
• The Plaintiff is awarded interest of 6% per annum on the General Damages from the date of judgment until payment in full.
• The Plaintiff is awarded costs of the suit against the 1st Defendant.
• As between the Plaintiff and 2nd Defendant, each party shall bear their own costs.

Rules and key headnotes

Legislation cited (17)

• Civil Procedure Rules Order 2 rule 9
• Civil Procedure Rules Order 9 rule 10
• Civil Procedure Rules Order 9 rule 11(2)
• Evidence Act s.101
• Evidence Act s.102
• Evidence Act s.103
• Contracts Act 2010 s.10(1)
• Contracts Act 2010 s.61(1)
• Contracts Act 2010 s.61(4)
• Sale of Goods and Supply of Services Act 2018 s.25(1)
• Sale of Goods and Supply of Services Act 2018 s.25(2)
• Sale of Goods and Supply of Services Act 2018 s.54(1)
• Sale of Goods and Supply of Services Act 2018 s.54(2)(b)
• Sale of Goods and Supply of Services Act 2018 s.55
• Sale of Goods and Supply of Services Act 2018 s.56(2)
• Civil Procedure Act s.26(2)
• Civil Procedure Act s.27

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. 580 of 2003)
• RTS Flexible Systems Ltd v Molkerei Alois Muller GMBH & Co KG [2010] 2 All ER
• Karim Moding v Sulaiman Kabega (High Court Civil Appeal No. 35 of 2015)
• Frederick JK Zaabwe v Orient Bank and Others (Supreme Court Civil Appeal No. 4 of 2006)
• Kampala Bottlers Ltd v Damanica (U) Ltd (Supreme Court Civil Appeal No. 22 of 1992)
• Edward Owen Engineering Ltd V. Barclays Bank International Ltd [198] 1 QB
• Uganda Revenue Authority v Wanume David Katamirike (Supreme Court Civil Appeal No. 3 of 1993)
• Ronald Kasibante v Shell Uganda Ltd (High Court Civil Suit 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

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