Wakilii

SDV Transami (U) Ltd v Nsibambi Enterprises (Civil Appeal No. 59 of 2006)

Court of Appeal · [2008] UGCA 28 · 2008 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Civil appeal and cross-appeal from a High Court (Commercial Division) judgment for the respondent in a breach of contract and negligence suit for damaged cargo
Decision
Appeal dismissed; cross-appeal on costs allowed and respondent awarded full costs in both courts

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Cited — treatment unverified cited in 4 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

The Court of Appeal dismissed the carrier's appeal, holding that the appellant committed a fundamental breach by failing to deliver any of the cargo and could not rely on the exemption clause, which does not protect against fundamental breach or negligence. The doctrine of res ipsa loquitur applied, shifting the burden to the appellant, who adduced no evidence that the loss was beyond its control. On the cross-appeal, the Court held that costs follow the event and a successful party should not be deprived of full costs for the fault of its counsel; the trial judge's award of half costs was set aside and substituted with full costs in both courts.

Facts

SDV Transami (U) Ltd contracted to handle and transport Nsibambi Enterprises' cargo of glass from Mombasa to Kampala for consideration of US$3,350. The appellant did not deliver the cargo, informing the respondent on 1 September 2004 that it had been damaged in transit. A marine surveyor's assessment report showed a total loss. The container fell off the transporting truck a short distance from the point of loading. When asked to compensate the respondent, the appellant refused, relying on an exemption clause stating that all cargo is transported, handled and stored at the owner's risk and that insurance was the consignee's responsibility. The respondent sued for breach of contract and negligence, contending the driver failed to properly secure the cargo. The appellant alleged the loss was caused by poor packing by the respondent but adduced only the word of its witness, DW2, without supporting evidence. The High Court (Commercial Division) found for the respondent, awarding special damages of USD 8,335, general damages of UGX 8,000,000, interest, and half the costs of the suit.

Issues

  1. Whether the appellant carrier was liable to the respondent for the loss of the cargo in negligence and breach of contract.
  2. Whether the appellant could rely on the exemption clause in the contract of carriage to avoid liability.
  3. Whether the trial judge wrongly exercised his discretion in awarding the successful respondent only half its costs.

Orders

  • Appeal dismissed.
  • Cross-appeal allowed.
  • Order of the High Court awarding the respondent half costs set aside and substituted with an order awarding it full costs.
  • Full costs to the respondent both in the Court of Appeal and the High Court.

Key headnotes

Contract Law — Exemption Clauses — No Protection for Fundamental Breach or Negligence
An exemption clause, even where clear, unambiguous and accepted by the parties, does not protect a carrier from liability where it has committed a fundamental breach of the contract or where negligence is implicated.
Contract Law — Carriage of Goods — Duty to Deliver and Total Loss
A carrier who fails to deliver any of the cargo entrusted to it, with no evidence that the failure was due to reasons beyond its control or the consignee's negligence, commits a fundamental breach and cannot escape liability under an exemption clause.
Tort Law — Negligence — Res Ipsa Loquitur in Carriage of Goods
Where goods under the management of a carrier or its servants are lost in circumstances that would not occur in the ordinary course of things if proper care were taken, the doctrine of res ipsa loquitur applies, shifting the burden onto the carrier to explain the cause of the accident.
Tort Law — Bailment — Liability for Acts of Agents and Sub-Bailees
A bailee is liable for the loss of goods occasioned by the acts of its agents or sub-bailees while the goods are in their possession.
Civil Procedure — Costs — Costs Follow the Event
Under section 27(2) of the Civil Procedure Act, costs follow the event and a successful litigant should not be deprived of costs except for good reason; an appellate court will interfere where the trial court exercised its discretion injudiciously or on a wrong principle.
Civil Procedure — Costs — Fault of Counsel Not Visited on Client
A successful party should not be deprived of its costs on account of the conduct or error of its counsel; it is not fair to visit the mistake of counsel on an innocent client.

Legislation cited (1)

  • Civil Procedure Act s.27(2)

Cases cited (6)

  • Devran Nanji Handus Kalidas Dawda (1949) 16 EACA 35
  • Donald Campbell & Co. Ltd Vs. Pollack (1927) AC 722
  • Scott vs London and St. Catherine Docks cited in Moore vs Fox & Sons (1957) 1 ALL ER 182
  • Morris V C W Martins and Sons Ltd [1965] 2 All E R 725
  • British Road Services v Arthur V Cructchley & Co Ltd (Factory Guards Ltd Third Parties) [1968] All E R 811
  • ESSAJI AND ORS V SOLANKI [1968] EALR 218
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.