Wakilii

Stone Crushing Uganda Limited v Roko Construction Limited (Civil Suit 665 of 2017)

High Court · [2021] UGCOMMC 137 · 2021 Judgment for Plaintiff AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for recovery of money owed under a construction sub-contract, with counterclaim
Decision
Plaintiff awarded UGX 57,870,627 outstanding balance plus UGX 10,500,000 general damages with interest and costs; defendant's counterclaim dismissed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Court held the plaintiff sub-contractor achieved substantial completion on 24 November 2015 when structures were used for mass, and practical completion on 27 June 2016 when works were officially handed over. Defendant waived liquidated damages by permitting the plaintiff to work past the deadline without setting a new one. Two support columns installed to address structural deflection were a trifling defect not preventing practical completion. Defendant breached contract by failing to pay the outstanding balance on the altar works. Plaintiff entitled to UGX 57,870,627 outstanding balance but not entitled to recover full cost of unused U-beams purchased for bridge redesigned mid-contract. Counterclaim dismissed for lack of proof.

Outcome

Plaintiff awarded UGX 57,870,627 outstanding balance plus UGX 10,500,000 general damages with interest and costs; defendant's counterclaim dismissed

Facts

Plaintiff sub-contractor was engaged by defendant contractor on 30 July 2015 to fabricate, supply and install steel structures for redevelopment of the Catholic Uganda Martyrs Shrine at Namugongo for a papal visit scheduled for 28 November 2015. Contract value was UGX 1,626,778,500 with practical completion specified as 14 November 2015. By 24 November 2015, pavilions A, B, C, bridge and altar were ready to use and were used on 28 November 2015 for hosting mass. Plaintiff then undertook rectification works including altar alignment and supporting a sagging roof, completed in May 2016. Works officially handed over on 24 May 2016. To rectify a deflection at the altar, plaintiff installed two support columns not in the original design. Defendant refused to pay UGX 57,870,627 outstanding on altar works, claiming plaintiff failed to secure completion certificate by not removing the two columns. Defendant also redesigned the bridge from steel to concrete mid-contract after plaintiff had purchased U-beams worth UGX 69,492,890.40. Defendant counterclaimed UGX 83,427,753 for alleged costs of rectifying defects and delay damages.

Issues

  1. Whether the sub-contract was completed within the required time and to the required standard.
  2. Whether the defendant breached the sub-contract for the works on the altar and the bridge.
  3. Whether the plaintiff is entitled to the sum of UGX 130,667,517 as claimed.
  4. Whether the plaintiff is liable to the defendant in the sum of UGX 83,427,753 as counterclaimed.
  5. What remedies are available to the parties?

Orders

  • Judgment entered for the plaintiff against the defendant.
  • Defendant to pay plaintiff UGX 57,870,627 as outstanding balance on the altar works.
  • Defendant to pay plaintiff UGX 10,500,000 as general damages for breach of contract.
  • Interest on UGX 57,870,627 at 20% per annum from 27 June 2016 until payment in full.
  • Interest on UGX 10,500,000 at 8% per annum from date of judgment until payment in full.
  • Costs of the suit and counterclaim awarded to the plaintiff.
  • Defendant's counterclaim dismissed.

Rules and key headnotes

Construction Contracts — Time of Completion — Waiver of 'Time is of the Essence' Provision
When a contractor permits the practical completion date to pass without setting a new deadline and continues issuing construction change directives requiring the sub-contractor to perform additional work, that constitutes waiver of the 'time is of the essence' provision of the contract, and the contractor loses its right to enforce liquidated damages for delay.
Construction Contracts — Substantial Completion — Distinction from Practical Completion
Substantial completion occurs when work is sufficiently complete in accordance with contract documents so that the owner can occupy or use the work for its intended purpose. Practical completion is a separate and later stage, defined as a state of affairs in which works have been completed free from patent defects other than ones to be ignored as trifling. Substantial completion triggers the contractor's right to payment of the full contract amount minus retention, while practical completion triggers release of retention.
Construction Contracts — Practical Completion — Patent Defects — Trifling Defects
A patent defect that is properly regarded as trifling cannot prevent certification of practical completion, whether the defect is capable of economic remedy or not. Whether an item is trifling is a matter of fact and degree, to be measured against the purpose of allowing the owner to take possession of the works and to use them as intended. Significant defects cannot be discounted merely on the basis that they do not prevent the works from being used for their intended purpose.
Construction Contracts — Variations from Design — Material Breach
It would be commercially unworkable if every departure from contract drawings, regardless of reason for and the nature and extent of the non-compliance, had to be regarded as a breach of contract. While a material variation may be a breach, it does not necessarily constitute a material breach. Where support columns were added to prevent structural collapse caused by deflection whose occurrence cannot be attributed to any fault of the parties, their absence from original design is a trifling defect not preventing practical completion.
Special Damages — Proof — Counterclaim for Rectification Costs
Special damages must be specifically pleaded and strictly proved. Strict proof does not necessarily require documentary evidence, but where a witness is uncertain as to which party undertook alleged rectification works and the claim is devoid of documentary evidence in circumstances where such evidence would reasonably be expected, the claim for special damages fails.
Construction Contracts — Payment for Off-Site Materials — Shop Drawings
A sub-contractor who stocks materials long before shop drawings incorporating their use are presented and approved, in absence of evidence showing that such early procurement was imperative by reason of scarcity, special order processes or similar reason, cannot claim for the value of those materials. Materials not incorporated in any certificate and never delivered to site remain the property of the sub-contractor.
Breach of Contract — Mid-Contract Design Change — General Damages
Where a contractor unilaterally redesigns a contracted element mid-contract, that act constitutes breach of the sub-contract. The innocent party is entitled to general damages for loss suffered, including income lost from financial resources applied to procure material that has been unutilised, but must take reasonable steps to mitigate loss and can recover expenses or costs incurred in mitigation.

Legislation cited (1)

Cases cited (17)

  • Shipping Services (Group) Ltd v China Chongqing International Construction Corporation (Civil Suit No. 538 of 2005)
  • Pioneer Construction Co Ltd v British American Tobacco (Civil Suit No. 209 of 2008)
  • Borham-Carter v Hyde Park Hotel [1948] 64 TLR
  • Masaka Municipal Council v Semogerere [1998-2000] HCB 23
  • Musoke David v Departed Asians Property Custodian Board [1990-1994] E.A. 219
  • Kyambadde v Mpigi District Administration [1983] HCB 44
  • Haji Asuman Mutekanga v Equator Growers (U) Ltd (Civil Appeal No. 7 of 1995)
  • Gapco (U) Ltd v A.S. Transporters (U) Ltd (Civil Appeal No. 18 of 2004)
  • Westminster Corp v J Jarvis & Sons Ltd [1970] 1 WLR 637
  • University of Warwick v Balfour Beatty Group Ltd [2018] EWHC 3230
  • Mears Ltd v Costplan Services (South East) Ltd and others [2019] 4 WLR 55
  • Ruxley Electronics & Construction Limited v Forsyth [1996] 1 AC 344
  • J.M. Beeson Co. v. Sartori, 553 So. 2d 180, 182 (Fla. Dist. Ct. App. 1989)
  • British Westinghouse Electric Co Ltd v Underground Electric Railways [1912] AC 673
  • Uganda Revenue Authority v Stephen Mabosi (Civil Appeal No. 1 of 1996)
  • Harbutt's Plasticine Ltd v Wyne Tank & Pump Co Ltd [1970] 1 Ch 447
  • Mohanlal Kakubhai v Warid Telecom Uganda (Civil Suit No. 224 of 2011)

Full judgment

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

Stone Crushing Uganda Limited v Roko Construction Limited (Civil Suit 665 of 2017) [2021] UGCommC 137 (8 April 2021)
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.