Wakilii

Uganda Railways Corporation v Bushenyi Commercial Agencies & 2 Ors (Civil Appeal No. 94 2010)

Court of Appeal · [2012] UGCA 31 · 2012 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
First appeal from a High Court judgment, brought by a third party found liable to indemnify the defendant
Decision
Appeal allowed; orders against the appellant set aside, releasing it from liability to reimburse the defendant

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Cited — treatment unverified cited in 1 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Court of Appeal allowed the appeal by the first third party (Uganda Railways Corporation). It held that the trial judge had not properly evaluated the evidence: the testimony actually exonerated the appellant, the seals and hinges were intact in Kampala, and the goods were not lost in Uganda. Crucially, third party proceedings for indemnity must be founded on a contract, express or implied, and the indemnifying party must satisfy the court there is a proper question to be tried. No such contract or indemnity was proved, and no directions under Order 1 rule 18 had been sought. The orders requiring the appellant to reimburse the defendant were made without evidence of indemnity and were set aside.

Facts

The first respondent contracted the second respondent (a clearing and forwarding agent) to clear and forward three containers holding 3,300 cartons of Tiger Head batteries. The containers were loaded on Kenya Railways Corporation wagons in Mombasa for rail transport to Kampala. Kenya Railways carried them to Kisumu, where they were handed over to Uganda Railways Corporation (the appellant) for onward transport. On offloading at the Uganda Goods Shed in Kampala, 1,758 cartons were found missing, although the seals and hinges on the containers were intact. The first respondent sued the second respondent for breach of contract. The second respondent counterclaimed for clearing fees and demurrage and issued third party notices against Uganda Railways and Kenya Railways seeking indemnity or contribution. The trial judge found the appellant and Kenya Railways jointly liable based on evidence that transportation was a shared responsibility, and ordered them to reimburse the second respondent.

Issues

  1. Whether the trial judge's failure to determine which third party lost the goods caused a miscarriage of justice.
  2. Whether the appellant was liable for the loss of the goods in transit.
  3. Whether the failure to seek directions under Order 1 rule 18 of the Civil Procedure Rules invalidated the third party indemnity orders.

Orders

  • Appeal allowed.
  • Orders of the trial judge requiring the appellant to reimburse the second respondent jointly and severally with Kenya Railways Corporation set aside.
  • Costs of the appeal and of the High Court awarded to the appellant against the second respondent.

Key headnotes

Civil Procedure — Third Party Proceedings — Requirement of Contractual Basis for Indemnity
Third party proceedings for indemnity or contribution must be founded on a right of indemnity arising from a contract, express or implied, between the party applying and the third party; absent such a contract, no indemnity can be ordered.
Civil Procedure — Third Party Proceedings — Directions under Order 1 rule 18
Where a third party enters appearance, the defendant must apply for directions so that the court can determine whether there is a proper question to be tried as to the third party's liability to indemnify or contribute, including whether a contract of indemnity exists.
Civil Procedure — First Appeal — Duty to Re-evaluate Evidence
On a first appeal the appellate court must re-evaluate the evidence; where the trial judge's finding of liability is not supported by the evidence, and the evidence in fact exonerates a party, the finding will be set aside.
Carriage of Goods by Rail — Liability for Loss in Transit — Proof of Handover
A carrier is not statutorily liable for loss of goods where intact seals and hinges and the absence of any handover receipt under the Uganda Railways Corporation Act show the goods were not lost while in that carrier's custody.

Legislation cited (4)

  • Uganda Railways Corporation Act s.58(3)(b)
  • Civil Procedure Rules Order 1 rule 18
  • Civil Procedure Rules Order 1 rule 15(a)
  • Civil Procedure Rules Order XII

Cases cited (3)

  • Bakaluba Peter Mukasa v Nambooze Betty Bakileke (Election Petition Appeal No. 4 of 2009)
  • Kabu Auctioneers & Court Bailiffs v Muljibhai Co. Ltd & Another (Civil Appeal No. 19 of 2009)
  • Sango Bay Ltd v Dresdner Bank (No.3) [1971] EA 307
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.