Overview:
.The High Court in Kampala has found Hajji Moses Kigongo liable to pay Shillings 80.7million for breaching a contract he signed with a supplier of doors and windows to his construction sites. The court also found Kigongo culpable for illegally retaining properties that don’t belong to him.
The High Court in Kampala has found Hajji Moses Kigongo liable to pay Shillings 80.7million for breaching a contract he signed with a supplier of doors and windows to his construction sites. The court also found Kigongo culpable for illegally retaining properties that don’t belong to him.
In his ruling, Commercial Division judge Steven Mubiru held that Kigongo and his company, Mosa Courts Apartment Limited, had breached the contract they signed with Diamond Glass Mart Limited, therefore rendering the contract nonexecutable. “[Kigongo] by his conduct acquiesced in the 1st plaintiff’s supply and installation of window and door frames that did not match the contractual specifications, and could not reject them afterwards. There is also no evidence to show that the supplied materials and the workmanship was not fit for the purposes of use on a residential house. That the frames were not fit for the more specialised use with bulletproof glass cannot be blamed on the plaintiff, since it was not part of the contract…In the circumstances, the only detail of alleged poor workmanship provided by the defence, albeit without evidence to prove it, is more consistent with the frames being unable to accommodate bulletproof glass than the work having been executed unskilfully,” the ruling reads in part.
Diamond Glass Mart Limited, a company dealing in the fabrication andinstallation of metallic doors and window frames, and one of its directors, Lubega Ibrahim Kato, provided Kigongo with their products and services at various construction sites. In a contract signed in May 2019, the company undertook to supply and install for Kigongo aluminium door and window frames and the corresponding glassworks at Shillings 120million at his residential house and ten units of cottages at Maya, in Mpigi district.
The company claims that although it concluded the works in accordance with the contract, Kigongo paid only Ugx 83,250,000, leaving an outstanding balance of Ugx 36,750,000. Lubega also contended that the shipping container by which the aluminium frames were imported contained his personal effects, which Kigongo had notaccounted for. In his defence, Kigongo said that the company had failed to execute the contract within the agreed period of time, thereby causing him to rent alternative accommodation at a cost which he was also seeking to recover. He also added that the material that were supplied were not that agreed in the contract as they didn’t allow for the fitting of bulletproof glass. He therefore purchased others that were fit for the purpose, hence incurring extra costs.
In his ruling, Mubiru said that the examination of the photographic evidence of theframes as installed does not reveal any obvious or patent defects and therefore, Kigongo failed to prove his allegation. He therefore ruled that Kigongo had to meet his contractual obligation because the company had successfully done its work as agreed upon.
“By virtue of those agreed payment milestones, at the time the contract wasterminated, the 1st plaintiff had achieved milestone (VI) and thus was entitled topayment of a total of Shs 110,000,000/= at that stage, yet he had been paid only Shs 83,250,000/=, leaving an outstanding balance of Shs 26,750,000/=. Once a creditor adduces credible evidence establishing the debt owed, the evidentialburden shifts to the debtor to show that it was paid in full or in part. A mere denialof the debt is insufficient. The debtor must provide specific evidence, such as bank transfers or receipts, to prove payment or merit a set-off. The 1st defendant not having produced such evidence, I find that the 1st defendant owes the 1stplaintiff a sum of Shs 26,750,000/=,” the judge ruled.
The judge also found that Mosa Courts Apartment had also in the past failed to pay Ugx 31.270,000 in previous transactions. The court also found that indeed the container that contained Kigongo’s aluminium materials also had: ten television sets, one children’s swing, and 50 pieces of crystal stair rails. However, when he delivered the container at Maya, it was emptied at night, and the goods were placed in the store, including his personal effects, which were, never given to him. Altogether, they amounted to UGX16.7million. Kigongo was also ordered to pay Ugx 6million in general damages.
“The packing list and customs clearance documents are sufficient proof that thepersonal effects claimed by the 2nd plaintiff were indeed imported in the same shipping container that contained the aluminium door and window frames. Considering the fact that the container was delivered at the 1st defendant’s site and that all contents were offloaded into a store at the site, it is more probable than not that the 2nd plaintiff’s too were kept in the same store. From that moment, the 1st defendant exercised substantial dominion or control over them, and they were thus legally in the effective possession of the 1st defendant, upon whom the burden lies to account for their whereabouts,” the court ruled.
Put together, the court ordered Kigongo to pay Shillings 80.7million at 20% interest rate until full payment.
He was also ordered to pay for the cost of the suit and the counter suit.
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