Wakilii

Cumberland Uganda Limited v Security 2000 Uganda Limited (Civil Suit No. 448 of 2009)

High Court · [2014] UGCOMMC 230 · 2014 Judgment for Plaintiff AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for breach of contract and negligence arising from guarding services
Decision
Judgment for the plaintiff with damages awarded subject to contractual limitation clause

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the defendant's security guards acted negligently by permitting strangers into the plaintiff's premises and failing to protect the property, and the defendant is vicariously liable for these acts notwithstanding that the guards acted deliberately, wantonly and for their own benefit. The exemption clause limiting the defendant's liability to UGX 500,000 is enforceable on the true construction of the contract. No contributory negligence by the plaintiff. Plaintiff awarded UGX 500,000 liquidated damages, UGX 50,000,000 general damages, interest and costs.

Outcome

Judgment for the plaintiff with damages awarded subject to contractual limitation clause

Facts

By an agreement dated 2 September 2009, the defendant agreed to provide guarding services to the plaintiff's commercial premises at UGX 300,000 per guard per month. The defendant deployed two guards on 27 September 2009. On the night of 27 September 2009, the guards permitted strangers to enter the premises. One guard, Tumusiime, left his station to purchase and consume alcoholic drinks with the strangers. The strangers broke the padlock and loaded goods onto a vehicle. The second guard, Komakech, suspected his colleague's involvement but failed to report it to supervisors. The plaintiff claimed theft of 182 cartons of pharmaceutical goods worth UGX 109,200,000 and cash of UGX 200,000. The guarding services agreement contained exemption clauses limiting the defendant's liability to UGX 500,000.

Issues

  1. Whether the plaintiff's commercial premises on Mpungu Close, Ntinda Kiwatule Road, Kigoowa Zone were broken into on the night of 27th September 2009 and if so, whether the plaintiff suffered any loss resulting from the said break in?
  2. Whether the guards deployed by the defendant on the night of 27th September 2009 acted negligently during the provision of guarding services to the plaintiff?
  3. Whether the defendant is vicariously liable for the acts of negligence or otherwise of its guards deployed at the plaintiff's premises?
  4. Whether the defendant can lawfully limit its liability through the exemption clause contained in the agreement?
  5. Whether there was contributory negligence by the plaintiff?
  6. What remedies are the parties entitled to?

Orders

  • The defendant shall pay to the plaintiff UGX 50,000,000 being general damages with interest at 11% per annum from the date of judgment till payment in full.
  • The plaintiff is awarded UGX 500,000 liquidated damages with interest at 25% per annum from 29th September 2009 till payment in full.
  • The plaintiff is awarded costs of the suit.

Rules and key headnotes

Tort Law — Vicarious Liability — Negligence of Security Guards — Acts Done in Course of Employment
An employer is vicariously liable for the negligent acts of its employees performed in the course of employment even where the employee acts deliberately, wantonly, negligently, criminally or for his own benefit, provided that what the employee did is merely a manner of carrying out what he was employed to carry out.
Tort Law — Negligence — Security Guards — Duty of Care — Breach
Security guards employed to protect commercial premises owe a duty of care to their client to block unauthorised access to the premises and to protect the client's property. Permitting strangers to enter the premises, leaving the work station to consume alcohol with strangers, and failing to report suspicious conduct to supervisors constitutes breach of that duty.
Contract Law — Exemption Clauses — Fundamental Breach — Construction of Contract
There is no rule of law that an exemption clause in a contract is automatically nullified or deprived of effect where there is a fundamental breach of the contract. Whether an exemption clause applies turns on the construction of the whole of the contract. Parties are free to agree whatever exclusion or modification of their obligations they choose. Any clause intended to limit liability must be expressed in clear and unambiguous terms.
Contract Law — Standard Form Contracts — Signed Agreements — Duty to Read
When a document containing contractual terms is signed, in the absence of fraud or misrepresentation, the party signing it is bound by its terms and it is wholly immaterial whether that party read the document or not. A party cannot escape the terms of a signed contract on the ground that he was desperate or did not read the terms before signing.
Damages & Quantum — Special Damages — Strict Proof — Stock Losses
Special damages must be specifically pleaded and strictly proved. Where a plaintiff alleges theft of goods from stock, production of a commercial invoice and packing list showing goods imported and authorised, without production of the stock book, inventory or audit showing goods remaining after the alleged theft, falls short of strict proof of the quantity and value of goods actually stolen.
Tort Law — Contributory Negligence — Security Contracts — Duty to Enhance Security
Where a security company's guards breach their duty of care by permitting strangers to enter premises through the gate, a client's failure to enhance perimeter lighting or raise the wall fence does not constitute contributory negligence, as those measures would not have prevented the guards' breach.
Damages & Quantum — Exemplary Damages — Punitive Purpose — Conduct Warranting Award
Exemplary damages are awarded to punish and deter where the defendant's conduct is oppressive, arbitrary, unconstitutional, high-handed or calculated to procure a benefit at the plaintiff's expense. They are not awarded where the defendant responds to the plaintiff's predicament, takes disciplinary action against the negligent employee and cooperates with investigations.

Cases cited (14)

  • Muwonga v Attorney General (1967) EA 17
  • Photo Productions Ltd v Securicor Transport Ltd [1980] 1 ALL ER 556
  • Joyce Mukwenda v Tororo District Administration (1974) HCB 32
  • Twine Amos v Tamusuza James (Civil Revision No. 11 of 2009)
  • Atyam Patrick and Another v Uganda (Court of Appeal Criminal Appeal No. 72 of 1999)
  • Muhumuza v Agip Petrol Station [1975] HCB 288
  • L'Estrange v F. Graucob Ltd [1934] 2 KB 394
  • Levison and Another v Patent Steam Carpet Cleaning Co Ltd [1978] QB 69
  • Suisse Atlantique Societe D'Armement Maritime SA v NV Rotterdamsche Kolen Centrale [1967] 1 AC 361
  • Ellerman Lines Ltd v Grayson Ltd [1920] AC 466
  • Robert Coussens v Attorney General (Supreme Court Civil Appeal No. 8 of 1999)
  • Obongo v Kisuntu Council [1971] EA 91
  • Thunderbolt Technical Services Ltd v Apedu Joseph and K.K Security (U) Ltd (High Court Civil Suit No. 340 of 2009)
  • Instone v A Schroeder Music Publishing Co Ltd [1974] 1 WLR 1308

Full judgment

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Cumberland Uganda Limited v Security 2000 Uganda Limited (Civil Suit No. 448 of 2009) [2014] UGCommC 230 (27 August 2014)
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.