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Mubaraka Batesaki v Mubaraka Magala (Civil Appeal No. 29 2002)

Court of Appeal · [2005] UGCA 5 · 2005 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second appeal from the High Court at Jinja sitting on first appeal from the Chief Magistrate's Court at Iganga
Decision
Appeal partially allowed; buyer entitled to refund of Shs 2,500,000 while the dismissal of the claim for the balance stands; each party to bear its own costs

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Holding

The Court of Appeal held that, in the absence of a forfeiture clause, the Shs 2,500,000 paid by the buyer was part payment of the purchase price and not a deposit. Once the seller repossessed the vehicle he repudiated the contract and disentitled himself to sue for the unpaid balance; the buyer was therefore entitled to a refund. The appellate Judge erred in allowing the seller to retain both vehicle and money, purportedly as compensation for breach, since these matters were never pleaded or assessed. The appeal was allowed partially as to refund, but the discretionary order that each party bear its own costs was upheld as judicially exercised under section 27(1) of the Civil Procedure Act.

Facts

By a written agreement dated 3 January 1996, the respondent sold his Hiace minibus to the appellant for Shs 3,800,000. The appellant paid Shs 2,500,000 cash and took possession, but the logbook was retained by the respondent pending payment of the balance of Shs 1,300,000 in two instalments. When the appellant failed to pay the instalments, the respondent repossessed the vehicle on 15 June 1996, about two months after the agreed final payment date. He later filed suit for recovery of the unpaid balance. The Chief Magistrate dismissed the suit and ordered refund of the Shs 2,500,000 with interest. On first appeal, the High Court upheld the dismissal but set aside the refund order, allowing the respondent to retain both the vehicle and the money. The buyer appealed to the Court of Appeal. The sale agreement contained no forfeiture clause.

Issues

  1. Whether the Shs 2,500,000 paid by the buyer was a forfeitable deposit or refundable part payment of the purchase price.
  2. Whether the appellate Judge erred in allowing the seller to retain both the vehicle and the deposit, a remedy not pleaded.
  3. Whether the appellate Judge properly exercised his discretion in ordering each party to bear its own costs.

Orders

  • Appeal allowed partially.
  • The appellant buyer is entitled to recover his Shs 2,500,000.
  • Each party to bear its own costs.

Key headnotes

Sale of Goods — Deposit versus Part Payment — Recovery on Repudiation
Where there is no forfeiture clause, money handed over as part payment of the purchase price is refundable once the seller rescinds or treats the contract as at an end owing to the buyer's default, subject to any cross-claim for damages; it is distinguishable from a deposit, which secures performance and is forfeitable.
Breach of Contract — Election of Remedies — Repossession as Repudiation
A seller who repossesses goods after the buyer's default treats the breach as going to the root of the contract and thereby repudiates it, disentitling himself to sue for the unpaid balance of the purchase price; his remedy lies in damages for breach of contract.
Pleadings — Award of Unpleaded Relief
A court cannot grant a remedy that was never pleaded or claimed; an appellate judge errs in awarding compensation for breach where the matters of mitigation and depreciation were neither pleaded nor assessed on evidence.
Costs — Judicial Discretion — Successful Party Deprived of Costs
The award of costs is a matter of judicial discretion under section 27(1) of the Civil Procedure Act, and an appellate court will not interfere where the trial judge based the order on facts such as the conduct of the parties, even where a successful party is deprived of costs.

Legislation cited (2)

  • Civil Procedure Act s.27(1)
  • Civil Procedure Rules O.39 r.2

Cases cited (6)

  • Dies v British and International Mining and Finance Corporation Ltd [1939] 1 KB 724
  • Stockloser v Johnson [1954] 1 All ER 630
  • Jane Bwiriza v John Nathan Osapil (Civil Appeal No. 5 of 2002)
  • Omer v A Besse Ltd [1960] EA 907
  • Devram Nanji Dattani v Haridas K Dawda (1949) 16 EACA 35
  • Donald Campbell v Pollock [1927] AC 732
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.