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THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA
AT MENGO
(CORAM: ODOKI, CJ., ODER, TSEKOOKO, KAROKORA
AND KANYEIHAMBA, JJ.SC.)
CIVIL APPEAL NO. 08 OF
2003
B E T W E E N
GOUSTAR ENTERPRISES LTD: :::::::::: :::::: APPELLANT
VS
JOHN KOKAS OUMO: :::::::::: ::::
RESPONDENT
(An Appeal arising from the Judgment and Orders of the Court of Appeal {S. G. Engwau and A. Twinomujuni, C. Byamugisha, JJA,} dated 26th August, 2003 in Court of Appeal Civil Appeal No:27 of 2001).
JUDGMENT OF KAROKORA - JSC:
This is an appeal from the decision of the Court of Appeal which allowed
the respondent’s appeal against the decision of the
High Court in High
Court Civil Suit No. 1093 of 1999.
The brief facts of the case are that
on 20th February 1997, the appellant entered into a memorandum of
understanding, Exh. D1 with the Uganda National Farmers Association hereinafter
referred to as “the Association” to supply tractors and their
implements to members of the Association. The respondent
who was a member of
the Association made an order through the Association to be supplied with 3
tractors with their implements.
The price for 3 tractors with their
implements plus tax, according to Exh. D2, was Shs. 105,679,140=. Furthermore,
according to Exh.
D2, the respondent was required to deposit 50% as first
instalment. Pursuant to that requirement, the respondent paid Shs. 53,584,500=
to the appellant towards the purchase of the 3 tractors. In July 1997, the
appellant supplied the tractors. The tractors were tested
in the presence of a
representative of the appellant. Two of the three tractors were found to be
defective. These two tractors
had been collected from the appellant by the
respondent and had been parked in the verandah of the respondent’s home.
One
tractor had a hydraulic problem. The other was
overheating.
Thereafter the respondent rejected the two tractors and the
appellant, took them back. The appellant claims that it took them back
to be
repaired/or serviced while the respondent claimed that he had rejected them as
he could not start repairing new tractors.
When they failed to agree, the
respondent filed the suit in the High Court claiming refund of shs28,389,685/=
which was later amended
and reduced to shs25,421,685/= being the adjusted amount
sum from the original amount deposited towards the purchase of the three
tractors.
The learned trail judge made the following
orders:
(a) the defendant shall deliver one of the two bare tractors (without extra) to the plaintiff at the unit cost without any further payment.
(b) The defendant refunds to the plaintiff Shs. 7,244,685= and may do so by supplying to the defendant implements up to this value at the plaintiff’s option.
(c) One of the two tractors be retained by the defendant, its purchase having been avoided.
(d) Each party bears his own costs of this suit.
(e) The cash refund at “b” above bears interest at 12% from the date of filing the suit on 22-09-1999, to the date of full settlement thereof.
Both parties were dissatisfied by the above
orders and so the current respondent appealed to the Court of Appeal while the
current
appellant cross-appealed. The learned justices of the Court of Appeal
allowed the appeal and made the following orders:
(1) The appellant is entitled to a refund of shs 18,355,120/= with interest at the rate of 12% pa from 19th sept1999 till full payment
(2) The appellant will have costs of the appeal and in the lower court.
(3) The cross-appeal is dismissed with costs to the appellant
(4) The cross-appellant pays shs 5,000,000/= in general damages to the appellant.
The cross-appellant has appealed against
the decision of the court of appeal to this court on the following six grounds
:
(1) The learned justices of the Court of Appeal erred both in fact and in law in failure to evaluate the evidence on record that showed that the defects in the tractors occurred as they were under possession, control and prior use by the Respondent and his Agent.
(2) That the learned Justices of the Court of Appeal erred both in fact and in law in holding that the tractors were rejected when they were sent back to the appellant for repair.
(3) That the learned Justices of the Court of Appeal erred both in fact and in law in failing to cancel out the orders of Justice Okum-Wengi that the cross-Respondent retain one tractor and hand over the other to the appellant after finding that the Judge was wrong.
(4) That the learned Justices of the Court of Appeal erred both in fact and in law for basing on the fact of terrain in Kumi to hold that the tractors could not work in the terrain when the issue was defects and not specifications.
(5) That the learned Justices of the Court of Appeal erred in law in not considering and overlooking the question of warranty and came to a wrong conclusion to the effect that since the appellant had given a warranty of 12 months and the defects came up after two months the appellant was in breach of contract.
(6) That the learned Justices of the Court of Appeal erred both in fact and in law by failing to take the Mathematical Calculations by the cross-Appellant that what was awarded to the Respondent in Shs. 7,244,685= was erroneous, unjustifiable and worked injustice to the Appellant.
Each
party filed written submission through their counsel. Counsel on both side
rightly submitted that it is the duty of the first
appellate court to
re-evaluate the evidence recorded at the trial and come up with its own
decision. See Banco Arabe Espanyol - vs - Bank of Uganda Civil
Appeal No. 8 of 1998 (SC), Habre International Co. Ltd. - vs - Abraham
Alayakha
& Others, Civil Appeal No. 4/98 (S.C), Muluta Joseph - vs -
Katama Sylvano Civil Appeal No. 11 of 1999 (S.C.) and Rule 29(1)
of the Rules of
the Court of Appeal for the above proposition.
On the
1st ground of appeal M/s. Tashobya & Co. Advocates, counsel for
the appellant submitted that whether the two tractors were defective
at the time
of testing was not denied by the appellant at the trial, because the two
tractors failed to work. One failed to engage
the plough and the other
overheated after a short time of work. The first and second tractors which had
defects and could not work
were the tractors driven from Mbale to Kumi and
packed at the respondent’s place . The third tractor which was brought by
the appellant’s representative, Guo Dong DW1 on the day they were tested
worked well.
On the issue of whether the tractors had those defects when
they were supplied or developed after they were delivered to the respondent,
counsel contended that from the evidence of DW1 the defects developed as a
result of missing spares i.e. parts which were removed
when the tractors were in
possession of the respondent who used the tractors before they were trained by
DW1. Counsel submitted
that according to the Memorandum of Understanding Exh.
D1 entered into by appellant and the Association – clause 7, thereof
had
stated:
“That Guostar shall offer training to buyers
(operators) on cost price but charge after sales services for the
same.”
Counsel submitted that the use of the tractors
before training the operators coupled with the tampering/removal of some spare
parts
was the cause of the defects in the tractors, when they were in the
respondent’s possession.
Counsel submitted that in view of the
acknowledgment by the Lady Justice Byamugisha, JA, that respondent’s
workers had used
the tractors before they were tested and in light of the
unchallenged evidence of DW1 and his contention as to the cause of the defects,
the plaintiff had failed to discharge the burden of proof.
In the
alternative, learned counsel argued that because of the uncertainty of the time
when the tractors developed defects, there
is a doubt which should be resolved
in favour of the appellant.
In conclusion, counsel submitted that section
35 of the Sales of Goods Act ought not to have been invoked against the
appellant in
the instant case since the respondent as a buyer acted contrary to
the conditions of sale set out in the memorandum of understanding.
In view of
the above, counsel for appellant submitted that the Justices of Appeal were in
error to hold that the appellant was responsible
for the defects in the
tractors. He therefore prayed that ground one should be upheld.
M/s.
Omoding, Ojakol & Okallang Advocates for the respondent contended on this
ground in their written submission that the lead
judgment of Lady Justice
Byamugisha, JA, reveals that the Court of Appeal re-evaluated the evidence while
considering the appeal.
It was their contention that in evaluating the
evidence on record, the lead judgment of Lady Justice Byamugisha, JA, referred
to
the evidence of DW1 who had testified that:
“when he went
to test the tractors in the month of August, two tractors were defective. The
tractors were supplied in July and kept
at the home of the appellant waiting to
be tested.”
She then noted in her judgment
that:
“DW1 in cross-examination was clear about the other two
tractors. One was overheating and the other second had a hydraulic
problem.”
Counsel submitted that there was no evidence to
indicate that at the time of the delivery in July, the tractors were devoid of
those
defects that were observed at the time of testing them.
In
conclusion, counsel submitted that the respondent was in breach of its
contractual obligation of supplying tractors fit for the
particular purpose and
therefore, submitted that the first ground had no merit and should be
rejected.
This being a second appeal, the position regarding the
evaluation of evidence on second appeals was succinctly stated in Habre
International Co. Ltd. - vs - Abraham Alayakha & Others,
(supra), that where it is apparent that the evidence on record has not
been subjected to adequate scrutiny by the trial judge or the
first appellate
court, as the case may be, the appellate court has an obligation to do so. This
court reiterated the view in the
case of Banco Arabe Espanyol - vs -
Bank of Uganda (supra), that as a second appellate court,
except in the clearest of cases, we are not required to re-evaluate the evidence
like a first appellate
court. However, we stated in the case of Kifamunte
Henry, - vs - Uganda Cr. Appeal No. 10 of 1997, that where the
Court of Appeal has failed to do so or has applied wrong principles as in that
case, we must correct any errors committed.
See also Pandya - vs -
R (1957) EA 366 & Bogere Charles - vs - Uganda, Cr. Appeal No. 10/98
(SC).
In the instant case, the lead judgment of Lady Justice
Byamugisha, JA, with which other Justices concurred, shows she re-evaluated
the
entire evidence on record and held that there is no evidence to indicate that at
the time of delivery in July, the tractors were
devoid of the defects which
became apparent upon testing and they were fit for the purpose. There was no
independent evidence adduced
to show that the defects occurred after they were
delivered.
The Lady Justice cited the case of Kinyanjui - vs -
D T Dobie & Co. (Kenya) Ltd. [1975], where it was held that the
communication by the buyer to the seller of the purpose for which the goods were
required is sufficient
to show the seller that the buyer relies on the
seller’s judgment. See also Sugar Corporation of Uganda Ltd. -
vs - Lawsam Chemical (U) Ltd. SC, Civil Appeal No. 5 of
2001.
In her re-evaluation of the evidence, the learned Justice
of Appeal concluded that in order to succeed the buyer had to prove that
he had
relied on the seller’s skills and judgment to supply him with the tractors
fit for the terrain of Kumi, since the evidence
showed that the seller was a
supplier of tractors for use by farmers. DW1's evidence showed that he was an
agricultural specialist
and confirmed that the buyer had given through the
Association the required specifications of the tractors he wanted and therefore,
the buyer relied on judgment and skills of the seller to supply tractors fit for
the purpose.
In conclusion on whether the seller supplied the tractors
which conformed with the buyer’s specifications, Byamugisha,
JA, stated that:
“There was no independent evidence to
determine whether the tractors were fit for the purpose. But the evidence from
the respondent
was its responsibility to test the tractors and train the
appellant and other workers on how to use them. Again DW1 testified that
when
he went to test the tractors in the month of August, about two months after they
were supplied, two tractors were defective.
The tractors were supplied in July
and kept at the home of the appellant waiting to be tested. Admittedly, some
workers of the
appellant tried to use them before the respondent had tested
them. But one of them was working. DW1 in cross-examination was clear
about
the two tractors. He clearly stated that two of the tractors failed to work.
One was overheating and the second had a hydraulic
problem. These defects were
seen barely two months after the tractors had been supplied and yet the
respondent had given a warranty
of 12 months. In my view, the learned trial
judge was wrong to hold as he did that the appellant had no choice but to take
a bare
tractor in addition to the one he had kept. He was wrong for failing to
hold that the respondent was in breach of its contractual
duty of supplying
tractors fit for the particular purpose. The appellant through the Uganda
National Farmers Association made his
specifications for tractors he wanted. He
therefore relied on the respondent’s skill and judgment. The respondent
let him
down. The orders made by the trial court would therefore be set
aside.”
(Reference in the above passage to the appellant
and the respondent is to the present respondent and the appellant
respectively).
Clearly, the above conclusion was arrived at after a
thorough re-evaluation of the entire evidence. The learned Lady Justice cited
section 35 which is now section 34 of the Sale of Goods Act which provides
that:
“Where goods are delivered to the buyer which he has
not previously examined, the buyer is not deemed to have accepted them
unless
and until he has had a reasonable opportunity of examining them for purposes of
ascertaining whether they are in conformity
with the
contract.”
The learned Lady Justice rightly in my opinion
held in her lead judgment that the respondent had not accepted the tractors,
because
he had not had a reasonable opportunity to inspect them and ascertain
for himself whether they were fit for the purpose for which
he bought
them.
Clearly, the opportunity for the respondent to ascertain whether
the delivered tractors conformed to his specifications was afforded
to him when
they were tested in presence of both the respondent and the appellant’s
agent in the respondent’s farm.
According to the evidence of both the
respondent and the appellant, the two tractors failed to perform – one had
hydraulic
problems whilst the second one overheated. In my view, if the defects
in those two tractors came about as a result of the respondent’s
tampering
with them, the appellant should have counterclaimed for money incurred in
repairing them, which it never did.
Therefore, ground one must
fail.
The complaint in ground 2 was that the learned Justice of Appeal
erred both in fact and in law in holding that the tractors were rejected
when
they were sent back for repair. This ground is related to 1st ground
of cross-appeal before the Court of Appeal which was dismissed by the Court of
Appeal as having no merit.
On the issue of whether there was evidence to
show that the respondent rejected the tractors and if so, at what point in time
or whether
he avoided his obligation of collecting the tractors back after they
were repaired, counsel for the appellant submitted that there
was ample evidence
by DW1 that the appellant repaired the tractors within 2 days of the delivery to
it and informed the respondent
to collect them but there was no evidence to
support the respondent that the appellant failed to repair the tractors.
Counsel further
submitted that when the respondent asked the appellant to repair
the tractors, that did not amount to a rejection of the tractors,
because
rejection must be an unequivocal and unambiguous act on the part of the buyer to
the seller.
In opposition, respondent’s counsel submitted that in
order to resolve the issue of whether the appellant accepted the tractors
or
not, it is necessary to consider the provision of Section 34(1) of the Sale of
Goods Act, (supra).
Counsel contended that the operative words in
section 34(1) are that the respondent, is not deemed to have accepted them
unless and until he has had a reasonable opportunity of examining them for
purposes of ascertaining
whether they are in conformity with the
contract.
Counsel submitted that according to the evidence of the
respondent, the opportunity to examine the tractors was when the tractors
were
tested in the field in the presence of the appellant’s agents. Upon
seeing the defects in the two tractors, the respondent
rejected them.
The
respondent described what happened on the day of testing the tractors in the
following words:
“The Agric Department people were informed ,
I reported there as their farmer. Guodong was not there. When he came I called
the Mechanics and we went to the field. The first tractor was driven. They
tried to fit the plough but it could not be fitted on
to the tractor. We drove
it to the verandah. The Goustar Mechanics tried so hard to engage the hoe and
manipulated the system such
that it could engage the plough. They failed. We
left the first tractor.
The second tractor on trial was
driven. It engaged the plough and went to plough. It ploughed two or three
times then steam gushed
out with hot water out of the tractor. People ran away
from the bubbling water. Mr. Oluka was the one driving. He ran away on
stopping the tractor and left the fuming tractor. It was later driven to the
verandah when it had cooled down. Then another one
went to the third tractor.
This was reversed to the plough. It engaged and proceeded to the field. It
ploughed properly. After
that we went back to the home. Engineers of Guostar
then went to try to repair the plough lever to lower and raise. The system
on
the first tractor failed and we left it. The second vehicle was overheating.
The third was o.k. I decided not to be repairing
new
tractors.
Guodong then agreed to take the tractors to
Kampala. I provided transport. Two trips were made to transport the
tractors. This
was because I also rejected the small
trailers.”
Clearly, the above evidence shows that the
respondent had not accepted the two tractors as he had not had a reasonable
opportunity
to inspect and ascertain for himself whether they were fit for the
purpose for which he had bought them. The tractors were tested
in the presence
of Guodong who also stated in evidence that they were tested in the field and
found to be defective. In my opinion
the respondent was entitled to reject the
defective tractors.
In the result, ground 2 must fail.
The
complaint in ground 3 was that the Justices of Appeal erred both in fact and in
law in failing to cancel out the order of Justice
Okum Wengi, that the
cross-Respondent, retain one tractor and hand over the other to the appellant
after finding that the judge was
wrong. I must say that this ground does not
make sense. Moreover, no submissions were made by counsel to support
it.
In her lead judgment, Byamugisha, JA, stated:
“I
accept that the trial judge was wrong to make the orders in the manner that he
did. The judgment itself was a contradiction
of . . . . . sorts. The
understanding was that the cross-appellant would supply three tractors
with their implements.
Therefore, the order of the court was in contradiction
with the memorandum of understanding which was, the basis for the supply of
the
tractors.”
I agree with the above conclusion and I find no
merit in this ground which must fail.
The complaint in ground 4 was that
the Justices of Appeal erred both in fact and in law for basing on the fact of
terrain in Kumi
to hold that the tractors could not work in the terrain when the
issue was defects and not specifications.
Whereas the Court of Appeal
held that in order for the appellant (now the respondent) to succeed he had to
show that he relied on
the appellant’s skills and judgment to supply
him tractors fit for the terrain of Kumi, the overall consideration in
determining
the appeal was whether or not the tractors could perform the
work/job for which the respondent had purchased them. In resolving this
issue,
the Court of Appeal relied on section 16 of the Sale of Goods Act
which is now s. 15 of the 2000, Revised Edition
of the Laws of Uganda. It
provides that:
“Subject to the provisions of this Act and of
any Act in that behalf, there is no implied warranty or condition as to the
quality
or fitness for any particular purpose of goods supplied under a contract
of sale, except as follows:
(a) where the buyer expressly or by implication, makes known to the seller the particular purpose for which the goods are required so as to show that the buyer relies on the seller’s skill or judgment, and the goods are of description which it is in the course of the seller’s business to supply whether he be manufacturer or not, there is an implied condition that the goods shall be reasonably fit for such purpose.
(b) Where goods are bought by description from a seller who deals in goods of that description, whether the seller is the manufacturer or not, there is an implied condition that the goods shall be of merchantable quality; except that if the buyer has examined the goods, there shall be no implied condition as regards defects which the examination ought to have revealed;
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The
lead judgment of Byamugisha, JA, rightly relied on the case of Kinyanjui
- vs - DT Dobie & Co. (Kenya) Ltd.(supra). See also
Manchester Liners - vs - Rea [1922] 2 AC 14 in which
Lord Buckmaster held:
“If goods are ordered for a special
purpose, and that purpose is disclosed to the vendor, so that in accepting the
contract
he undertakes to supply goods which are suitable for the object
required, such a contract is, in my opinion, sufficient to establish
that the
buyer has shown that he relies on the seller’s skill and
judgment.”
In that same case Diplock L J held inter
alia . . . . :
“the communication by the buyer to the
seller of the purpose for which he requires the goods is sufficient to show that
he relies on
the seller’s skill or judgment, for there is no other reason
why the buyer should make known his purpose to the
seller.”
Clearly, the evidence which was before court was
that the appellant was a supplier of tractors for use by farmers. DW1 had
testified
before court that he was an agricultural specialist. In the
memorandum of understanding between the appellant and the Association
the type
of tractors that the respondent required were specified and DW1 confirmed in his
testimony that he was given the required
specifications. Therefore, the
respondent had relied on the appellant’s judgment and skill to supply
tractors fit for the
respondent’s use.
If, as the evidence showed,
the hydraulic system failed as a result of which one tractor could not lift and
lower the ploughs, then
that tractor never fitted the purpose for which the
respondent wanted it. Further, if the second tractor overheated on being tested
in the presence of the appellant’s agent, then that tractor failed to fit
the purpose for which the respondent wanted to buy
it.
Consequently, this
ground must fail.
The complaint in ground 5 was that the Justices of the
Court of Appeal erred in fact and in law in not considering and overlooking
the
question of warranty and came to a wrong conclusion to the effect that since the
appellant had given a warranty of 12 months
and the defects came up after 2
months the appellant was in a breach of contract.
Counsel for the
appellant, in his written submission contended that the defects in the tractors
were not the responsibility of the
appellant, and added that even if it was,
which was denied, he reiterated that the appellant’s responsibility would
be to
correct the defects in the tractors. He contended that this would be a
breach of warranty which would not entitle the buyer to reject
the goods but
to seek damages.
Opposing this ground, counsel for the respondent
quoted the holding of Newbold, JA, in Kampala General Agency 1942 Ltd.
- vs - Mody’s EA Ltd [1963] EA 549, that a condition in a
contract of sale is an obligation the performance of which is so essential to
the contract that if it is
not performed the other party may fairly consider
that there has been substantial failure to perform the contract. Counsel
further
submitted that the breach in the instant case never amounted to breach
of a warranty as it was submitted by counsel for the appellant,
which would
entitle the buyer to claim damages because warranty as defined by section 1(0)
of the Sale of Goods Act (Revised Edition
2000 is:
“An
agreement with reference to goods which are the subject of a contract of sale,
but collateral to the main purposes of such contracts,
the breach of which gives
rise to a claim for damages but not to a right to reject the goods and treat
the contract as repudiated.”
Byamugisha, JA, rightly
found that the respondent had made specifications of the tractors he wanted
through the Association. The
appellant confirmed the specifications having been
made by the respondent. Therefore, the Court of Appeal was right to hold that
the respondent had relied on the appellant’s skills and judgment which
imputed an implied condition that the goods would be
reasonably fit for the
purpose he wanted them. As stated in section 15(1)(a) of the Sale of Goods
Act, the breach of such condition
would entitle the buyer to reject the goods as
opposed to a case of breach of warranty, which would entitle the aggrieved party
to
claim damages for such a breach.
In my view, the disposal of grounds
2, 3 and 4 more or less disposes of this ground. As the two tractors failed to
meet the purpose
for which they were purchased, the appellant was in fundamental
breach of its contractual obligation of supplying tractors fit for
respondent’s purpose.
Therefore, ground 5 must
fail.
Ground 6 complained that the Justices of Appeal erred both in fact
and in law by failing to take the mathematical calculations by
the
cross-appellant that what was awarded to the respondent in Shs. 7,244,685= was
erroneous, unjustifiable and worked injustice
to the appellant.
Counsel
for the appellant submitted that the contention by counsel for the respondent
that the respondent had repudiated the contract
was an afterthought because the
respondent never expressly rejected the tractors.
Counsel adopted the
submission made before the Court of Appeal on 3rd ground of appeal
when the counsel was dealing with calculation of the amount of money each
tractor would cost, taking into account
the cost of spare parts for repair of
the two tractors. Counsel submitted that the Justices of Appeal erred to hold
that the respondent
was entitled to a refund of Shs. 18,356,120= when the
respondent had already taken delivery of the tractors, accepted them and above
all, used them. He contended that if the appellant was to resell these
tractors, it would be at a loss. He prayed that the order
of the Court of
Appeal be set aside and for the appeal to be allowed with costs to the
appellant.
Counsel for the respondent submitted, rightly in my view, that
after making necessary calculations basing on Exh. D2, Lady Justice
Byamugisha,
JA, found that since the value of 3 tractors with their implements plus tax was
Shs. 105,677,140=, the cost of one of
the 3 tractors would be Shs. 105,677,140=
divided by 3 which would be Shs. 35,226,380=. However, since the respondent
had already
deposited Shs. 53,584,500= towards the purchase of the tractors, he
would be entitled to a refund of the amount deposited less the
amount equivalent
to the value of one tractor which would be Shs. 53,584,500= minus Shs.
35,226,380= which would be Shs. 18,358,120.
The learned Lady Justice
found, rightly in my view, that since there was no counter-claim pleaded
regarding the cost of the repair
of the two tractors, no relief would be granted
on the issue of costs for repair of the tractors.
I agree with the above
conclusion. It is well settled that no decision must be made or relief granted
by any court of law on a ground
which was not pleaded. See the case of
Candy -vs - Caspair Air Charter Ltd. [1956] EACA 139 at page
140 where Sir Ronald Sinclair VP, stated that:
“The
object of pleadings is of course to secure that both parties shall know what are
the points in issue between them, so that
each may have full information of the
case he has to meet and prepare his evidence to support his own case or to meet
that of his
opponent. As a rule, relief not founded on the pleadings will not
be given.”
See also the case of Francis Sembuya - vs
- AllPorts Services (U) Ltd. Civil Appeal No. 6 of 1999 SC, which
reiterated the holding in Candy case (supra).
In the
instant case, the pleadings show that the appellant never counterclaimed for the
costs it allegedly incurred on repairing the
tractors. Therefore, the
respondent did not defend himself on this issue before the trial court. I would
therefore not fault the
lower courts for having not considered it. In the
result, ground 6 must fail.
In conclusion, this appeal should be
dismissed with costs here and in the courts below.
JUDGMENT OF ODOKI, CJ
I have had the advantage of reading in draft the judgment of my learned
brother Karokora, JSC and I agree with him that this appeal
should be dismissed
with costs to the respondent.
As the other members of the Court also
agree, this appeal is dismissed with costs to the respondent in this Court and
the Courts below.
JUDGMENT OF ODER, JSC.
I have had the benefit of reading in draft the judgment prepared by my
learned brother, Karokora, JSC. I agree with him that the appeal
should be
dismissed with costs to respondent.
JUDGMENT OF TSEKOOKO, JSC
I have had the benefit of reading in draft the judgment prepared by my
learned brother, Karokora, JSC. I agree with his conclusions
that the appeal
should be dismissed with costs here and in the Courts below.
In this case
no scheduling conference was held and no issues were framed before the trial
begun.
I would like to make observations on the need to hold a
scheduling conference and the necessity for trial judges to frame issues
preferably
before a trial begins in civil cases.
SCHEDULING
CONFERENCE
The learned trial judge did not hold a scheduling
conference. There is no explanation on the record why this was not done. By the
time the suit was filed in 1999 and eventually heard, the Civil Procedure
(Amendment) Rules 1998, had come into force (see SI 1998 No.26) having come
into force on 18th May, 1998. The amendment introduced the holding
of what I think is a mandatory scheduling conference. In so far as relevant
Order XB Rule I (I) (b) of the Civil Procedure Rules reads: -
(b) Where no application for interrogatories and discoveries has been made
under rule 1 of Order X, then within twenty eight days
from the date of the last
reply or rejoinder............,
the court shall hold a
scheduling conference to sort out points of agreement and disagreement,
the possibility of mediation, arbitration and any other form of
settlement........................ (underlining supplied).
As
I understand this rule, its objective is to assist in expeditious disposal of
civil cases by trial courts. As the rule states,
its application helps a trial
judge and parties before the trial begins to dispose of matters that are not
contentious such as admission
of unchallenged documents and therefore if a
conference is properly conducted the case can be concluded early.
Indeed
subrule (2) provides that where the parties reach an agreement, orders shall
immediately be made in accordance with rules 6
and 7 of Order 13. Rule 7
of that Order empowers court to pronounce judgment where an agreement is
reached between parties to a suit. I make this observation because I
have noted
in a number of appeals coming to this Court that some trial courts do not bother
to make use of the above provisions and
therefore trial courts spend their
valuable time on receiving evidence on matters which could have been admitted at
the scheduling
conference.
FRAMING ISSUES
The second
point is about framing issues. This is regulated by o.13 of CP Rules. Normally
it is the duty of a trial judge to ensure
that issues are framed at the
beginning of a trial. Order 13 Rule 1 (5) of the Civil Procedure
Rules, states: -
"(5) At the hearing of the suit, the Court shall after reading the pleadings, if any, and after such examination of the parties or their advocates as may appear necessary, ascertain upon what material propositions of law or fact the parties are at variance, and shall thereupon proceed to frame and record issues on which the right decision of the case appears to depend."
In my opinion, this subrule is complementary
to the one regulating scheduling conference.
The subrule requires that after
preliminary matters are done during discovery, interrogatories, if any, followed
by a scheduling conference,
issues should be framed to define the dispute.
Thereafter only relevant evidence is adduced to prove or disprove disputed
matters.
Embarking on a civil case trial in which two or more parties are at
variance before framing issues is like sailing on the high seas
without a radar
and compass. That really means that valuable time will be spent on receiving
all manner of evidence from witnesses.
The learned judge framed issues in this
case while writing his judgement without in put from parties. As the Court of
Appeal correctly
observed, in the process, the learned judge appears to have
attempted to please each side in his judgment.
JUDGMENT OF KANYEIHAMBA, JSC.
I have had the benefit of reading in draft the judgment of my brother
Karokora, JSC. I agree with him that this appeal should be
dismissed with costs
here and in the Courts below. I also concur with the observations, my learned
brother Tsekooko, JSC, has made
in his judgment in this appeal.
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