REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA

COMMERCIAL COURT DIVISION

HCT-00-CC-CS-0294-2001

Dieter Pabst t/a BTHS Barter Trade Handels                                            Plaintiff

Versus

Abdu Ssozi                                                                                                Defendants

Sai Ltd

BEFORE: THE HONOURABLE MR. JUSTICE FMS EGONDA-NTENDE

JUDGMENT

1. The plaintiff is a German national trading as Barter Trade Handels und Seafood GMBH in Germany. On or about the 5^th November 1999 the plaintiff entered into an agreement with the defendant no.1 whereby the defendant no.1 would supply to the plaintiff at Entebbe, Uganda tantalite ore of a purity of 28% or more on terms set out in that agreement.
2. Pursuant to the said agreement the plaintiff contends that it advanced to the defendant payments totalling to US$132,844.51 to the defendants for the supply of 8,225 kgs of tantalite ore of purity 28% or more. In breach of their agreement the defendant only supplied 4,229 kgs of tantalite ore whose purity was slightly lower than the agreed purity. The plaintiff paid the defendants US$80,000.00, resulting in the defendants retaining an overpayment of US$9,822.25 for this consignment.
3. The plaintiff further contends that the defendants attempted to supply a further 3,996 kgs of tantalite ore in November and December 1999 but the said consignments were found to contain only a trace of tantalite contrary to the terms of the agreement. The plaintiff rejected these consignments.
4. The plaintiff further contends that it was an implied term of the contract that the defendant would pay freight charges and assaying charges in event that the tantalite ore was below the contract purity levels. The defendant attempted to repay part of the advance payments with the issue of US$2000.00 cheque to the plaintiff’s nominee, City Tyres but this cheque was not honoured.
5. By an agreement dated 15^th August 2000 the defendant no.1 accepted that it was indebted to the plaintiff in the sum of US$74,148.15 covering balances on 2 previous consignments, cost of one digital scale supplied by the plaintiff to the defendant, advance payments for 3,996 kgs of tantalite ore, airfreight for rejected consignments and assaying charges for rejected consignments. The defendant agreed to either repay the debt due or supply tantalite ore but he has failed to do either.
6. The plaintiff claims US$74,148.15, general damages, interest and costs of this suit.
7. The defendant no.1 denies that he acted in his personal capacity and asserts that he acted as an agent of the Defendant no.2. It is contended for the defendant no.2 that the relationship between it and the plaintiff is governed by a memorandum of understanding entered into by the parties and ought to be read together with the confidential agreement which is a statement of confidentiality about the mineral quality, purchase prices, and payment schedules.
8. The defendants deny breach of any agreement, and in particular contend that the sum of US$52,844.50 was paid to the defendant no.2 for the supply of 4229 kgs of tantalite ore, leaving a balance due to the defendant no.2 of US$44,422.50 which the defendant counter claims.
9. The defendant contends that the 3,996 kgs of tantalite ore conformed to the contractual purity levels. The plaintiff analysed the ore in Kampala before dispatch to Europe and it met the contractual purity levels. With regard to the implied term claims the defendant denies the obligations that are alleged.
10. With regard to the cheque of US$2,000.00 to City Tyres, the defendant admits that it issued that cheque not as repayment but as security for US$2000.00 advanced to the defendant to travel to Congo and recover the plaintiff’s alleged debts.
11. In relation to the purported agreement between the plaintiff and defendant no.1 admitting indebtness, the defendants state that the said agreement is a sham having been procured by duress and use of excessive force upon the defendant no.1 by security forces at the instance of the plaintiff.
12. The plaintiff testified in person. He was the only witness for the plaintiff. He stated that he is the managing director of BHTS, a fish trading company. Mr F Makubuya, a business partner in the fish business introduced him to the tantalite business. He met Mr. Ssozi, the defendant no.1, in 1999, introduced by the plaintiff's son, Oliver Pabst. The defendant no.1 was to supply tantalite from Congo and they made an agreement, admitted into evidence as exhibit P1. 75% of the price would be payable on the goods arrival at Entebbe and the balance after final analysis by A.H. Knight Laboratory in Germany. He paid for the goods as the same was on its way to Europe. He paid to Sabena for airfreight US$3,493.80 and the goods were kept at a Brussels warehouse. A.H. Knight did the sampling, weighing and analysis. Knight produced a report of assay, which shows exactly the content of tantalite in percentage terms. This procedure takes about 2 to 3 weeks.
13. The report by Knight or rather the several reports by Knight were admitted in evidence and marked exhibit P3. There are two consignments that were fake and contained only 0.23% and 0.15% tantalite. These consignments weighted 2,034 kgs and 1,962 kgs for which the plaintiff paid US$22,493.00 and US$37,215.00 respectively. The plaintiff paid for the analysis US$1500.00 for the 2 consignments.
14. The plaintiff notified the defendant no.1 of the Knight Assay reports and that those two consignments had not been genuine. The defendant was surprised and he said he wanted to recover the money from new deliveries. The defendant no.1 said that he wanted to recover the money from those who had supplied him the ore and he asked for money to travel to Butembo to find a solution. The plaintiff paid US$2,000.00 but nothing came of it. Defendant no.1 asked for another US$2,000.00 for travel which he later gave him in exchange for the defendant's cheque of Allied Bank. The cheque was deposited with City Tyres but it bounced. The plaintiff made several demands but the defendant kept asking for more money.
15. Defendant no.1 owed the plaintiff US$12,000.00 from 2 previous consignments. US$80,000.00 was advanced to the plaintiff. According to Knight analysis the purity was 26.17% and 24%, instead of between 30% to 33% as indicated by defendant no.1. The weight of the consignments was 3438.5 kgs and 612.5 kgs respectively. The total claim against the plaintiff is about US$75,000.00.
16. Subsequently the defendant no.1 made a memorandum acknowledging the debt. It was signed at Hotel Equatoria. He never tortured him into signing the agreement.
17. In cross examination the plaintiff testified that it was his son who signed exhibit P1, on behalf of his company, with his knowledge. The agreement was between the plaintiff and Ssozi. According to this agreement payment was to be at Entebbe after first analysis. He denied knowledge of exhibit D1, saying the English was different though it was on their letterheads. He does not know what a memorandum of understanding is. They dealt with Ssozi and not Sai Ltd. They never entered into a commission agreement and never paid him any commission but paid only travel expenses.
18. After the fake consignments the plaintiff never did business with the defendant no.1 again. He stated that he had other suppliers of tantalite from Uganda who include Uganda Marine Products Ltd. The plaintiff was not in Uganda and did not know how the analysis was made.  He is aware that they used to use Mr. Makubuya of Marine Products to test the ore. The test by Mr. Makubuya put the purity level at 31%.
19. With regard to the identification of the tested ore the plaintiff stated,

'The lot numbers and the Steinbeck report indicate that the consignments were Ssozi's. The link is the lot numbers found in the Steinbeck report. He is the warehouse owner. Blonder mentioned here is the client in Exhibit P3. The warehouse lot number and warehouse receipt relate to Ssozi and myself. Not guessing but it is a fact. The warehouse lot number is given to Steinbeck. He is in Antwerp. He is an authorised warehouse who handles business for me and other people as well. Fort Lee is not a person. It is a city in the U.S in Jersey. My Office did not delete the names of my client in all the documents by mistake or oversight.'

'When the minerals leave Entebbe for the warehouse the bags are marked by the supplier and the warehouse selects and gives lots according to the marking. The supplier marks the bags. Then there is the airway bill. The total consignment is reflected in the Bill. I don't have the mark as such but the airway bill shows a consignment which came in one lot. Each bag also is put on it the airway bill number to identify the shipment. (Witness shows airway bill indicating Ssozi as the shipper.) I received the copy of the airway bill by fax and I got a copy from the airline, from which we collected our consignment in Hamburg.'

The confidential agreement was with Ssozi the person. And the money was paid to Ssozi's account. Exhibits P2 were money transfers to Sai Ltd, which is Ssozi's account. They dealt with Ssozi. Sai Ltd is a company. He had a relationship with Ssozi and not Sai Ltd. The final agreement of 15/08/2000 was between Ssozi and the plaintiff. It was signed in the evening around 8.00PM to 10.00 O'clock.

20. In re-examination he stated in part,

'The consignments were marked by the supplier. The nexus between the consignment is the airway bill number and the warehouse lot number. No swapping and taking off labels is possible. Either we instructed Knight to sample and weigh the consignments and do the analysis or our customers may instruct Knight. In respect of the fake consignment it was my customer who instructed Knight.'

21. Defendant no.1 testified in person and he called one other witness. Defendant no.1 stated that he is businessman dealing in minerals including tantalite. He knew the plaintiff. The plaintiff was introduced to him in 1998 by Mr. Farouk Makubuya of Uganda Mining Products as a buyer of tantalite. The plaintiff wanted the defendant no.1's company to supply him with tantalite. Makubuya knew that he was the managing director of Sai Ltd.
22. He signed an agreement with the plaintiff’s company on 1^st August 1999 (Date on the agreement is 8^th August 1999.) Mr. Mark Oliver Pabst, who had been introduced to the defendant no.1 by his father through a fax, signed on behalf of BHTS. This is exhibit D1. Fax of introduction is exhibit D10. Defendant no.1 signed on behalf of his company, defendant no.2. It had been prepared by Mark Oliver Pabst.
23. He supplied the first consignment on 24^th August 1999. This was paid for and he got his commission. The second consignment was for 4,060 kgs valued at US$103,500.00. The plaintiff paid US$80,000.00 on 30/09/1999, leaving a balance of over US$20,000.00. On the same day he supplied a further 4,229 kgs valued at US$97,267.00 of which the plaintiff only paid, US$3,000.00, leaving a balance of US$94,267.00.
24. Subsequently a new confidential agreement, exhibit P1, was negotiated and signed between the parties. It is dated 5^th November 1999. It specifies purity and mode of payment. The parties agreed that there would be initial testing in Entebbe by the buyer and final testing in Europe by A H Knight, with results to be supplied within 14 days. After this agreement the defendant supplied two further consignments. The first consignment was 2,034 kgs supplied on 19^th November 1999, valued at US$46,782.00 of which US$16,000.00 was paid, leaving a balance of US$30,782.00.
25. The last consignment was for 1,962 kgs valued at US$45,126.00 of which he paid part payment of US$33,824.50, leaving a balance of US$11,301.50. The unpaid balance outstanding on all consignments is US$136,350.50, excluding the commission of 50 US cents per kilo as per exhibit D1, the first agreement between the parties. This works out at US$4,122.50 in respect of 8,225 kgs supplied as agreed.  He invoiced him for the total amount on 8^th December 1999 but he never paid the same.
26. The plaintiff rang the defendant no.1 and told him that the consignments of 2,034 kgs and 1,920 kgs had been fake. It took the plaintiff 19 days after delivery of the first consignment to notify the defendant no.1 and 35 days for the last consignment. Defendant no.1 was surprised and he protested. The plaintiff sent him a fax dated 10/12/1999, exhibit D4 (i), in which he claimed that his customers had told him that purity was nil. Defendant no.1 sent the plaintiff a fax on 11/12/1999 protesting the claim that the consignments were fake, given the earlier examination of the consignments by the plaintiff's representatives that had put the consignment quality at between 30% to 33% purity.
27. Defendant no.1 further testified that exhibit D2 (i) a fax from the plaintiff to his son confirmed the export of the consignment of 2,034 kgs and indicated that the only problem was with some bags that had been damaged. It was in German and an English translation was provided to the court.
28. The defendant no.1 received a copy of an essay report dated 13^th January 2000; exhibit P3, received on the same date. On this report, he testified, in part, as under:

'It does not show to whom it was addressed. It does not show that it is from the plaintiff or his company. It does not relate to any tantalite I supplied. It does not relate to any airway bill through which I sent my consignment. It is fake. It is a false document.'

29. On the subject of the cheque of US$2000.00 issued to City Tyres by Sai Ltd, he testified that it was issued at the request of Oliver as indicated in exhibit D6. The plaintiff had sent to him to Congo as his agent to attempt and recover some money for him.
30. He testified that he knew the agreement of 15^th August 2000, exhibit P5. He signed it at the DMI barracks at Kitante Courts. The plaintiff went to the defendant no.1's house at about 8.00PM with two men and two women. They arrested the defendant no.1. They took him to Kitante DMI. He was taken into the building with the plaintiff and others. The driver remained in the vehicle. He was beaten, tortured and ordered to sign an agreement. He initially refused as the contents of the agreement were not acceptable. He signed the agreement because of force. This was around 10.00PM to 10.30PM. He did not know the witnesses to that agreement. Carol Mugisha was one of the people who arrested her.
31. The confidential agreement was between the plaintiff and Sai Ltd. Payments were made to Sai Ltd, and not to Ssozi. The confidential agreement was signed to provide definite terms with regard to price and payments. The plaintiff had previously been paying the price he wished and when he wished to pay. It was not the defendant's duty to pay freight.
32. US$80,000.00 was paid for 4,060 Kgs and there was no balance of US$8,082.25 in favour of the plaintiff, as claimed by the plaintiff. It is not true that he paid US$3000.00 for the consignment of 2,034 Kgs on 29^th October 1999 as the consignment went on 19^th November 1999. What he paid on 29^th October 1999 was the consignment of 30^th September 1999 of 4,229 Kgs. The defendant denied ever forcing the plaintiff to take any consignment. He denied that the plaintiff was demanding from him US$12,000.00.
33. The defendant stated that he demands from the plaintiff US$140,473.00 as he only received US$52,824.50 from the plaintiff, together with general damages, interest and costs. He asked for the plaintiff's suit to be dismissed with costs.
34. In cross examination the defendant no.1, inter alia, denied that the assay reports, exhibit P3, referred to the consignments that he had sold to the plaintiff. There was no connection between the goods supplied by Sai Ltd and the goods tested. He gave an invoice to demand his money. He did not write to demand his money but talked on phone. With regard to exhibit P5 he stated that he signed it under duress.
35. The defendant's witness, DW2, was called James Girigori Sensonga. He was a taxi driver in 2000, and was stationed at Hotel Equatoria. On 15^th August 2000, at about 8.30PM when a certain Deo called for a vehicle. He was with a European man and 2 African women. They were five in total. They asked me to take them to Kabowa which he did, following their directions. They entered a compound and asked for Ssozi. Ssozi came. The white man removed a paper from his bag and asked him to sign it. Ssozi refused. Ssozi was forced into the car by Deo. Ssozi's wife asked where we were taking him. One lady in the car answered that we were taking him to CPS. Instead we went to the Military Intelligence premises on Kitante road. A soldier opened the door at the gate. We drove inside and parked near a building. They got out. The black man inside the car slapped Ssozi as they got out of the car. Ssozi fell down and the white man picked him. They entered the building.
36. The witness did not enter the building. He waited outside. He heard someone crying. After about 2 hours they left the place with Ssozi but one black man stayed behind. He left Ssozi at the KPS stage and dropped the others at Hotel Equatoria.
37. Counsel agreed on five issues before the court. I will proceed to consider the evidence on each issue, making my findings.

Issue No.1: Whether there was a contract between the plaintiff and each of the defendants?

38. To answer this issue we need to review the three agreements that the parties signed. There is the agreement dated 8^th August 1999 which was entitled memorandum of understanding. It was between Marc Oliver Pabst, son of the plaintiff, representing BTHS Barter Trade Handles- Und Seafood Gmbh referred to as the buyer and Mr. Ssozi Abdu, the Managing Director of Sai Ltd, as Commission agent. This agreement was to govern the relations between the two parties until revoked by any other document. The buyer was going to buy tantalite ore from unnamed suppliers based in the Democratic Republic of Congo. Purity was provided for, and the commission that was to be paid to the commission agent. It was also agreed the account of Sai Ltd would be used for business transactions between the buyer and suppliers, with the buyer meeting all bank charges for those transactions.
39. This agreement is disputed by the plaintiff on the ground that they do not write agreements in this manner and the English was different. I am not sure how the English was different. This was not explained. The person that signed on behalf of the plaintiff was not called as a witness to repudiate the agreement. Mr. Mark Oliver Pabst, a son of the plaintiff, was his representative here in Kampala for sometime. In fact he signed the second agreement, which the plaintiff does not dispute.  The signature of Mr. Mark Oliver Pabst was not seriously disputed. It was found to be comparable to his signature on another document by the plaintiff himself, in his testimony. The authority of Mr. Marc Oliver Pabst to sign the agreement was not contested. In any case he had been held out to represent the plaintiff by the plaintiff himself.
40. I am satisfied that this agreement was duly executed on behalf of the plaintiff, and it is an agreement that binds the plaintiff and the defendant, unless revoked.
41. I come to the confidential agreement of 5^th November 1999. This agreement is not disputed by either party. The only point of disagreement is whether it was between Sai Ltd or Abdu Ssozi and the plaintiff. The agreement states in part,

‘We herewith wish to confirm the following Agreement between Sai Ltd, Kampala-Mr. Abdu Ssozi- further named as , ‘seller’ and BTHS Barter Trade Handels-und Seafood Gmbh, ………. –further named as ,, buyer’’.

42. At the foot of the agreement at the signature point is written,

‘Seller’ Sai Ltd, Kampala,                                                                   Mr. Abdu Ssozi’                                                                                and                                                                                                        ‘Buyer’ BTHS Barter Trade Handels-und Seafood Gmbh, Marc Oliver Pabst, on behalf of Mr. Dieter Pabst, Managing Director’.

43. Reading both portions of the agreement together, I take it that the seller was intended to be Sai Ltd, and Mr. Ssozi Abdu signed on behalf of the company. If it had been intended that both Sai Ltd and Mr. Ssozi Abdu be sellers, they ought to have been described as sellers in plural to denote two persons, given that Sai Ltd is a limited liability company with a separate personality.
44. I find therefore that this agreement was between defendant no.2 and the plaintiff.
45. I now turn to agreement no. 3 which was signed on the 15^th August 2000. This agreement is contested by the defendant no.1, on the ground that it was not freely entered into. The plaintiff stated that this agreement was signed between 8.00Pm and 10.00PM at Hotel Equatoria. On the other hand the defendant no.1 testified that he was arrested from his home and taken to the Directorate of Military Intelligence at Kitante Courts where he was compelled to sign to sign the same, by people that assaulted him, in the presence of the plaintiff.
46. The defendant produced a witness who claimed to have driven the party that arrested him on that day and took him to the Kitante Courts, at about the time the plaintiff claims that this agreement was signed.
47. Plaintiff’s counsel in his written submissions attacked the evidence of the defendant no.1, arguing that he should not be believed, because of alleged inconsistencies in his testimony.
48. The plaintiff did not call any independent witnesses to the agreement to testify. The agreement has three witnesses all of whom were unknown to the defendant. Presumably, the plaintiff must have known them since he claims that the agreement was signed in Hotel Equatoria.
49. I believe the evidence of DW2 which was unshaken in cross examination. There was unsuccessful attempt to make the defendant no.1 sign the agreement at his home. The witness then drove the party to Kitante Courts. Though he did not witness what went on inside the building, it is clear to me, that business transactions and agreements are not ordinarily carried out in military intelligence offices, at night, after the arrest or, actually, abduction of one of the parties, from his home.
50. Given this evidence, and its corroboration of the defendant no.1’s testimony in material particulars, I accept the defendant no.1’s version that this agreement was not freely entered by him. It cannot therefore be binding upon him. I reject it as a basis of a claim against the defendants.
51. I therefore find that there was a contract between the Plaintiff and Defendant No.1, as commission agent, and a contract between the Plaintiff and Defendant no.2 as seller in accordance with the agreements dated 8^th August 1999 and 5^th November 1999 respectively. Prior to 5^th November 1999, if there were any contracts of sale between the plaintiff and any one of defendants that would have to governed by the terms that they may have agreed to orally, given that there was no written agreement for the sale or purchase of tantalite or any other articles between the parties.

Issue No.2: If there was a contract, what were the terms?

52. Given my answer to issue no.1, the answer to issue no.2 is, firstly, that the terms of the contract between the parties are set out in the agreements between the parties of 8^th August 1999 and 5^th November 1999.
53. Secondly, in relation to any sale or supply  of tantalite prior to 5^th November 1999 such transactions between the parties would have to be governed by the terms that parties agreed to orally or partly orally and partly in writing, if any writing can be identified. This is so as the only written agreement, exhibit D1, prior to the agreement of 5^th November 1999, is not a sale agreement but merely a commission agreement between the plaintiff and defendant no.1. The sellers of tantalite that the plaintiff was to buy and the defendant no.1 was to earn a commission were not named in the agreement of 8^th August 1999.

Issue No.3: Whether there was breach and by whom?

54. The transactions of sale of tantalite between the parties can be conveniently divided in two parts, pre 5^th November 1999, and post 5th November 1999 transactions.

Pre 5^th November 1999 Transactions

55. These are the transactions that were carried out before the signing of the 5^th November 1999 confidential agreement. The only written agreement was exhibit D1 which was a commission agreement, and not a sale agreement. Nevertheless the plaint, in fact the last ‘further amended plaint’ treats the agreement of 5^th November 1999 as the agreement that governed all the transactions (pre and post 5^th November) between the parties. It sets out, in paragraphs 4 and 5, that pursuant to that agreement (of 5^th November 1999) the plaintiff made payments of US$132,844.51 to the defendants for the supply of 8,225 Kgs of tantalite ore.
56. This is a reference to the pre 5^th November 1999 transactions when the 5^th November 1999 agreement was not executed. It is not claimed that even though it was not in existence at the time, the terms set out therein, were terms that the parties had orally agreed to govern them and the transactions between themselves. The claim around the pre 5^th November 1999 transactions is premised upon an agreement that was not in existence.
57. The tenor of the plaintiff’s testimony follows in the same vein. He stated in part,

‘We further agreed to give down payment of US$80,000.00 which was paid to Abdu Ssozi on 30/09/1999. This is 75% of US$103,500.00 according to the confidential agreement. It was also receipted. We transferred the money into his account. He did acknowledge receipt. (See document) yes this is the original transfer of the money from our bank to the Allied Bank International Ltd, showing payment of US$80,000.00 made on 30/09/1999.’

58. The plaintiff is referring to the confidential agreement when actually it could not have come into effect as it was not made by that time. The payment he is referring to was made on the last day of September 1999 well before the 5^th November 1999 when the confidential agreement was entered into.
59. In their written submissions counsel for the plaintiff follow the same vein arguing that the defendant no.1 breached the terms of confidential agreement in the pre 5^th November 1999 transactions in supplying tantalite ore not of agreed purity. On the other hand the defendants’ counsel, in its written submissions argues that it is exhibit P1 and D1 that apply to these transactions. The defendant no.1 was a commission agent, while the defendant no.2 was the seller/supplier of tantalite ore.
60. If the defendant no.2 was the supplier of tantalite ore in the pre 5^th November 1999 transactions it could not have done so on the terms contained in the 5^th November 1999 agreement, unless there was a prior oral agreement or agreement of whatever nature as to those terms, prior to 5^th November 1999.
61. Neither the plaintiff nor the defendants have adduced evidence that shows what the terms are upon which the sales of the tantalite ore between the parties prior to the 5th November 1999. The reliance on an agreement that was not yet made appears to me to be ill founded unless a claim was made that the terms in the 5^th November 1999 agreement had orally or otherwise been agreed to govern the transactions between the parties. However no such claim has been made by either party in this case.
62. What appears to me more probable, in light of the agreement of 8^th August 1999, exhibit D1, is that it was never anticipated that the defendant no.2 was to be the supplier of the tantalite ore. What was anticipated was that the suppliers were to be found in the Democratic Republic of Congo but it was expressly agreed that payments would be effected using the defendant no2’s bank account. The buyer was to pay for all bank charges as a result of these transactions. This is expressly provided for in clause 5 of exhibit D1. Likewise it was agreed in clause 4 that for ‘every consignment despatched and documentation/shipping shall be in the names of Sai Ltd.’ The agreements set out other terms, including payment of commission to the agent, defendant no.1.
63. Though tantalite ore was supplied and exported to Europe, using Sai Ltd’s names and payments made using its bank account, it was not the supplier. Save for the claim for commission by defendant no.1 that may be in accordance with exhibit no.1, the suppliers of tantalite ore have not been named. According to the terms in clause 2 and 3 of exhibit D1, it was the obligation of the buyer ‘for goods scrutinising and analysis.’ The buyer had the right to reject the goods at this stage before dispatch at Entebbe International Airport.
64. In my view given exhibit D1, neither the plaintiff nor the defendant no.2 can maintain an action for breach of purity condition or the price of the goods against the other as there was no sale agreement between the two of them for the pre 5^th November 1999 transactions. The role of the defendants was limited to that set out in the exhibit D1. Defendant no.1 was a commission agent, who allowed his company, defendant no.2, to be used as a conduit for export of the tantalite ore and payment therefore.
65. The only claim the defendant no.1 may be entitled to is the claim for agreed commission, in case it was not paid. The only claim the defendant no.2 could maintain is the claim for bank charges incurred on its account for being used in making payments for the goods, if the same were not paid by the buyer (the plaintiff) as agreed.
66. The only action the plaintiff can maintain against the defendants must relate to the defendants obligations under exhibit D1, or either party must found a cause of action on a clearly discernible agreement between the parties.

Post 5^th November 1999 Transactions

67. These transactions are clearly governed by the exhibit P1, and possibly, exhibit D1. We need to turn to the facts as advanced by the parties. The plaintiff testified, and I will quote his testimony, in part, verbatim.

‘Mr. Ssozi in November/December 1999, He sent us 2,034 kgs shipped on 19/11/99. Another was of 40 bags- 1,962 kgs shipped in December 1999. In respect of these I paid for the first consignment US$3,000 on the 19/10/99, and on 26/11/99 US$16,000. This is a total of US$19,000. Bank transfers came from our bank up to Allied Bank International (Sees documents). These are the transfer documents to Mr. Ssozi’s account. (Admitted as exhibit P2.)                                                                                                       I paid for the goods as they were on their way to Europe. We paid airfreight to Sabena US$3,493.80. We put them at Brussels warehouse. A.H. Knight did the sampling, weighing and analysis. They gave us sampling and weighing report and finally a certificate of assay, which shows exactly the content of tantalite in percentage. This whole procedure would take 2 to 3 weeks. They issued a report (Sees document). Yes this is the original copy. (Exhibit P3) On the basis of this report the tantalite content was only 0.23%. It is tantalite but this is nothing. Knight is a neutral laboratory. Only them, and other Assays are accepted in Tantalite business. Knight is serious world class laboratory.                                                                      After this Ssozi forced me to take another 40 bags-1,962 kgs. He said I should take it, I should take it. This was on 6/12/99. We paid Sabena US$3,371.40 for the freight. I paid in advance on 7/12/99 US$3,384.50. The payment was sent as before from Hamburg to his Bank. Ssozi sent us a receipt. (Sees document). Yes these are the transfers and receipts.                                                                                    Consignment arrived in Brussels next day. We instructed forwarding agent in Antwerp to collect shipment, warehouse and instruct A.H. Knight on sampling, weighing and analysis. On sampling they gave reports and certificate of assay. (Sees document). Yes this is it. The quantity of tantalite was 0.15%. This is nothing. Not tantalite.                                                                 The total weight of the soil was 2,034 plus 1,962 (i.e. 3,996 Kgs). The net figures were US$22,493.80 and US$37,215.90. That is what I paid. If the purity had been okay, then the value of the goods would have been higher. I am only claiming what I paid.’

68. The reports were first challenged in the defendant’s fax of 11^th December 1999 addressed to BTHS Barter Trade Handels Und Seafood Gmbh. The defendants continued to challenge the assay reports marked as exhibit P3 both on their pleadings and in the defendant no.1’s testimony. Firstly that the reports do not show that it was the goods that the defendant supplied that were tested. The reports are addressed to a person unknown to the defendants and with whom they did not deal with. Secondly that the tantalite ore was tested by the plaintiff’s agent Mr. Makubuya at Entebbe and found to contain 30% to 33% tantalite. The defendant no.1 testified that it was impossible, where the first test showed the existence of this content to be found later to contain no tantalite as alleged.
69. It is worth noting at this stage that the plaintiff was not in Entebbe at the time. It was his son, who was around together with Mr. Makubuya, a business partner of the plaintiff in some other venture. These two handled the transactions here in Entebbe. They were not called to testify. Neither was the plaintiff in Brussels where the goods are alleged to have been flown. No witness has been called to testify as to the receipt of goods in Brussels, and how the goods either got to the warehouses or to Blonder or to A.H. Knight.
70. The point that there is no connection between the tantalite ore supplied by the defendants and the reports contained in exhibit P3 appears to be well taken and not answered convincingly by the plaintiff. Both reports show that the client is Messers Blonder & Co Inc. The consignments are stated to be delivered by air cargo. Arrival date is ‘Unknown at airport and 24 November at Warehouse’ for one. The other consignment’s arrival date is ‘Unknown at airport and 16 + 20 December at Warehouse’. The warehouses are not named and neither are the airports. Neither is the location of the warehouse provided. There are warehouse lot numbers.
71. These reports are useless unless there are linked to the goods in question. The plaintiff as witness has not been able to do this. On the contrary his testimony opens the ground for more questions. He stated that he deals in tantalite from other suppliers in Uganda. The possibility of mix up must be excluded. It has not been excluded.
72. The reports are evidence of expert of opinion. Clearly where there is a dispute, which required an expert to assist in resolving, it is imperative that such expert’s evidence must be adduced, in such a manner as would lay to rest competing claims. That has not been done is this, and it leaves the plaintiff’s case in shreds.
73. The burden of proof was upon the plaintiff to prove its case on a balance of probability. In my view, it has failed to discharge this burden with regard to showing that the tantalite supplied was in breach of the agreement between the parties.

Issue No.4: What are the outstanding obligations?

74. Although there is conflict in the plaintiff’s testimony as to how much he paid for the post 5^th November 1999 consignments, a tally from exhibit P2 shows that he paid US$ 52,844.50 to the defendant no.2’s account. It follows, given my finding on issue no.3, that the outstanding obligation on these transactions (post 5^th November 1999) is the payment of the balance of the price of tantalite ore to the supplier, defendant no.2, by the plaintiff. The amount outstanding would be US$39,053.50. In addition there are commission charges due on this consignment claimed as US$1998.00 by the defendant no.1. In light of exhibit D1, which had not been revoked, this sum is an outstanding obligation, if it was not paid.

Issue No.5: What are the remedies available to the parties?

75. In light of my findings on earlier issues I dismiss the plaintiff’s claim as it was not proven. I enter judgment on the counter claim to the extent only of US$39,053.50 for the defendant no.2 and US$ 1,998.00 for the defendant no.1. Interest on the decretal amount shall be levied at court rate from date of judgment till payment in full.
76. With regard to costs I note that the plaintiff’s claim has failed. So has a substantial part of the counter claim. In the circumstances I will award the defendants only half the costs of these proceedings.

Signed, dated, and delivered this 12^th day of June 2008

FMS Egonda-Ntende

Judge