Wakilii

Nec Health World Pharmaceuticals Ltd v Engineering Construction Co. Ltd (HCT-00-CC-CS 809 of 2012)

High Court · [2013] UGCOMMC 70 · 2013 Judgment for Defendant on Counterclaim AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit with counterclaim, plaintiff's suit dismissed for non-appearance, judgment on counterclaim heard ex parte
Decision
Plaintiff's suit dismissed; judgment for defendant on counterclaim with damages, interest, costs, and order for return of books of account

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Holding

The court dismissed the plaintiff's suit for non-appearance and failure to prosecute. On the counterclaim heard ex parte, the court held that the defendant failed to prove substantial performance of the construction contract as required under Evidence Act s.101 and s.103. The court found no breach by the defendant but rather that the plaintiff's conduct in locking out the defendant's workers frustrated contract performance. The court awarded the counterclaimant general damages of UGX 5,000,000 and special damages of USD 10,000 with interest at 10% per annum from judgment date, together with costs and an order for return of books of account.

Outcome

Plaintiff's suit dismissed; judgment for defendant on counterclaim with damages, interest, costs, and order for return of books of account

Facts

On 7 July 2006, the plaintiff contracted the defendant to construct a perimeter wall around its premises at Plot 38-40 Mulwana Road, Industrial Area for USD 47,000 and subsequently for road and pavement works. The plaintiff paid USD 105,008.71 towards the contract. On 16 June 2007, the plaintiff locked the defendant's workers out of its premises and retained the defendant's raw materials valued at USD 3,790 and work tools and equipment valued at USD 6,145. The plaintiff then sued the defendant for breach of contract claiming USD 131,800 plus VAT, general damages, and interest. The defendant counterclaimed for unpaid sums and return of materials and equipment. The plaintiff's suit was dismissed for non-appearance after counsel notified the court they had lost contact with the plaintiff. The counterclaim proceeded ex parte with evidence from the defendant's managing director.

Issues

  1. Whether the defendant substantially performed the contract?
  2. Whether the defendant breached the construction agreement?
  3. Whether the counterclaimant is entitled to the prayers in the counterclaim?

Orders

  • Plaintiff's suit dismissed for non-appearance and failure to prosecute.
  • Judgment entered for the counterclaim.
  • Plaintiff to pay counterclaimant UGX 5,000,000 as general damages.
  • Plaintiff to pay counterclaimant USD 10,000 as special damages.
  • Interest awarded on special damages at 10% per annum from date of judgment till payment in full.
  • Order for return of books of account by plaintiff to defendant.
  • Costs awarded to the counterclaimant.

Rules and key headnotes

Contract Law — Substantial Performance — Burden of Proof
Where a party claims to have substantially performed a contract, the burden lies on that party to prove the existence of that fact under Evidence Act s.101 and s.103. Mere pleading of substantial performance without adducing evidence to prove it is insufficient to entitle the party to the full contract price.
Contract Law — Breach — Frustration by Other Party
Where a plaintiff's conduct stops the defendant from completing performance of a contract by locking out the defendant's workers from the work site, such conduct constitutes breach by the plaintiff and not by the defendant.
Damages & Quantum — General Damages — Assessment in Contract Cases
General damages for breach of contract should be commensurate with the contractual sum and awarded on principles set out in Hadley v Baxendale, being such damages as may fairly and reasonably be considered as arising naturally from the breach or as may reasonably be supposed to have been in the contemplation of both parties at the time of contract.
Damages & Quantum — Special Damages — Proof Requirements
Special damages must be pleaded and strictly proved by the party claiming them. The claimant must put before court materials which indicate the basis for the claimed loss with sufficient particularity to justify the quantum sought.
Damages & Quantum — Interest — Discretion of Court
The award of interest is a matter for the court's discretion to be exercised judiciously. The rationale for awarding interest is that the defendant has kept the plaintiff out of his money and has had the use of it himself. Where a claimant sat on his rights and did not demand payment until sued, interest may be awarded only from the date of judgment rather than from the date of cause of action.
Civil Procedure — Dismissal for Non-Appearance — Counterclaim Proceeding Ex Parte
Where a plaintiff's suit is dismissed for non-appearance and failure to prosecute under Order 9 r.22 of the Civil Procedure Rules, the defendant's counterclaim may proceed ex parte for determination on its merits.

Legislation cited (6)

Cases cited (15)

  • Kampala Capital City Authority v Zimwe Enterprises, Hardware & Construction Ltd (HCT-00-CC-MA-0494-2012)
  • Denis Semakula v Masaka Diocese & 2 Others (1998) 11 KALR 128
  • Fire Masters Limited v Huawei Technologies Co. (U) Limited (HCT-00-CC-CS-119-2009)
  • Dakin v Lee [1916] 1 KB 566
  • Marshides Mehta and Co. Ltd v Baron Verhegen (21 EACA 153)
  • Noble Builders v Sietco (HCCS No. 174 of 1990)
  • Walji Jetha Kanji v Elais Freed (1959) EA 1071
  • Ronald Kasibante v Shell Uganda Ltd (HCCS No. 542 of 2006) [2008] ULR 690
  • Andes (EAS) Limited v Akoong Wat Mulik Systems Ltd & Others (HCCS No. 184 of 2008)
  • Hadley v Baxendale [1845-1860] All ER 461
  • Superior Construction and Engineering Ltd v Notay Engineering Industries (Ltd) (HCCS No. 702 of 1989)
  • Copcot E.A Ltd v Godfrey Sentongo & Another (HCCS No. 118 of 2008)
  • Masembe v Sugar Corporation and Another [2002] EA 434
  • Hambult's Plasticine Limited v Wayne Tank and Pump Company Ltd [1970] 1 QB 447
  • Ruth Alia & 136 Others v Attorney General (Civil Suit No. 1100 of 1998)

Full judgment

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

Nec Health World Pharmaceuticals Ltd v Engineering Construction Co. Ltd (HCT-00-CC-CS 809 of 2012) [2013] UGCommC 70 (24 April 2013)
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.