Wakilii

Tumusiime v Marine Services Company Ltd (Civil Suit No. 144 of 2008)

High Court · [2013] UGCOMMC 115 · 2013 Judgment for Plaintiff AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for non-delivery of goods and breach of contract of carriage
Decision
Plaintiff's claim allowed in part with special and general damages awarded; defendant's counterclaim dismissed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that the defendant unlawfully retained the plaintiff's wagon containing 40 tonnes of rice by refusing to transport it on grounds of alleged non-payment, when in fact the plaintiff had paid freight charges to Uganda Railways Corporation. The defendant, as a common carrier, had constructive possession and control over the wagon and was therefore liable in damages. The counterclaim for unpaid freight was dismissed as the plaintiff had paid for all wagons. Special damages of USD 14,863 and general damages of UGX 20,000,000 were awarded.

Outcome

Plaintiff's claim allowed in part with special and general damages awarded; defendant's counterclaim dismissed

Facts

Aisha Tumusiime, the plaintiff, operated a business importing goods to Uganda. In 2006, it contracted with Marine Services Company Limited, the defendant, to transport 69 wagons of rice from Mwanza Port in Tanzania to Port Bell in Uganda, paying USD 60,720. The defendant delivered 68 wagons but retained wagon No. C523095 at Mwanza Port, claiming it was unpaid for. Before July 2006, the plaintiff had been dealing with Uganda Railways Corporation (URC) which collected payments and shared them with the defendant. The defendant alleged the plaintiff owed money for earlier shipments and used part of the USD 60,720 payment to offset these debts, leaving the disputed wagon unpaid. The wagon remained at Mwanza Port for over a year. When finally released in 2007 after correspondence between the parties, inspection revealed the rice had rotted and was unfit for consumption. The defendant counterclaimed for freight charges for three other wagons it alleged were unpaid.

Issues

  1. Whether the defendant retained the wagon No. C523095, containing the plaintiff's consignments, and if so, whether such retention was unlawful.
  2. Whether the defendant is liable in damages for the loss occasioned to the plaintiff.
  3. Whether the plaintiff is liable to the defendant for any freight charges for the consignments in wagon Nos. C523025, C523039, and C521146 (counterclaim).

Orders

  • Judgment entered for the plaintiff in the sum of USD 14,863 as special damages.
  • General damages of UGX 20,000,000 awarded to the plaintiff.
  • Interest at the rate of 10% per annum awarded on special damages from the date of filing the suit until payment in full.
  • Costs of the suit awarded to the plaintiff.
  • Defendant's counterclaim dismissed.

Rules and key headnotes

Common Carrier — Duties and Liabilities — Constructive Possession
A common carrier has constructive possession of goods when it exercises control or dominion over property without actual physical possession or custody, including the power to determine whether goods are transported or retained.
Common Carrier — Retention of Goods — Lien for Unpaid Freight
A common carrier is entitled to retain goods and exercise a lien until freight charges are paid, but such retention is unlawful where the shipper has already paid the freight charges, even if payment was made to an authorized agent of the carrier rather than directly to the carrier.
Documentary Evidence — Unsigned Letters — Admissibility and Weight
Where a letter appears on a party's list of documents and witnesses are cross-examined on it, but the letter is not formally tendered as an exhibit, the court may consider it for whatever value it has if other related correspondence referring to it is admitted in evidence and the opposing party had opportunity to challenge it through cross-examination.
Breach of Contract — Duty to Mitigate Loss — Impossibility of Mitigation
A party who suffers loss by reason of breach of contract is under a duty to take reasonable steps to mitigate the loss, but this duty does not extend to requiring the innocent party to pursue mitigation where no reasonable alternative is available or where mitigation would be impractical or excessively costly.
Special Damages — Proof — Lost Profits
Where a plaintiff claims lost profit as special damages, the claim must be specifically proved by documentary evidence showing the cost of goods, the selling price, and how the amount claimed was calculated. Oral testimony of market prices without supporting documentation or explanation of profit margins is insufficient to prove lost profits to the satisfaction of the court.
Special Damages — Proof — Oral Evidence
Special damages must be specifically pleaded and strictly proved, but may be proved by oral evidence where the nature of the claim and the circumstances make documentary proof unavailable or unnecessary, provided the oral evidence is credible and the court is satisfied of the factual basis for the amount claimed.
Tripartite Arrangements — Payment Through Agent — Liability
Where freight charges are paid to an authorized agent of a carrier under a tripartite arrangement, the shipper is not liable to the carrier for non-payment if the agent fails to remit the funds to the carrier. The carrier's remedy lies against the agent, not the shipper who has discharged its payment obligation.

Legislation cited (2)

  • Evidence Act s.94
  • East African Community Customs Union (Management Regulations) 2006 reg.104(7)

Cases cited (6)

  • Sebagala & Sons Electric Centre v Kenya National Shipping Lines Ltd [1997-2000] UCLR 388
  • Umusiime Fidelis v Attorney General (High Court Civil Suit No. 88 of 2003)
  • Denmark Productions Ltd v Boscobel Production Ltd [1968] 3 All ER 513
  • Kampala City Council v Nakaye (1972) EA 446
  • AKPM Lutaaya v Attorney General (Civil Appeal No. 2 of 2005)
  • Agrovalue Processors Impex (U) Ltd v URC (High Court Civil Suit No. 025 of 2005)

Full judgment

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

Tumusiime v Marine Services Company Ltd (Civil Suit No. 144 of 2008) [2013] UGCommC 115 (5 June 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.