Wakilii

Zzimwe Enterprises ,Hardwares and Constructions Limited v Attorney General (Civil Appeal 116 of 2019)

Court of Appeal · [2024] UGCA 238 · 2024 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Civil appeal from a High Court (Commercial Division) judgment dismissing the appellant's suit
Decision
Appeal dismissed; the judgment of the High Court affirmed with costs here and below.

The full judgment

Read the complete, verbatim text of this judgment.

Sign in to read the full judgment
Cited — treatment unverified cited in 2 (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 contractor's appeal arising from a terminated Karamoja road-rehabilitation contract. It held that force majeure, even if an implied term under English contract law applicable through the Contracts Act, must be proved by the party invoking it; the appellant adduced no proof that adverse weather, insecurity or cattle rustling rendered performance impossible, and the events relied on had been resolved at a management meeting. Termination for the appellant's dismal, slow performance was justified. Applying the literal meaning of clause 61.1, all materials, plant and equipment on site were deemed the employer's property on the contractor's default, so retention was lawful. The appellant having failed to prove its losses, no damages were payable.

Facts

On 6 November 2008 the appellant was awarded a contract to rehabilitate the Kalapata–Piire Road under the Karamoja Roads Development Programme. Mobilisation occurred and works commenced in January 2009. The contract period expired on 4 December 2009 and, due to slow progress, was twice extended to 4 October 2010. Throughout, the project manager and resident engineer raised repeated concerns about dismal progress; by completion the appellant had built only 3.2 km of an agreed 44 km. The appellant claimed insecurity, a fatal shooting of staff, theft of fuel, adverse weather and a poor initial survey as force majeure, but a management meeting of 7 December 2009 recorded these concerns as addressed and insecurity as no longer of concern. The respondent terminated the contract on 22 November 2010 for breach and, invoking clause 61.1, retained the appellant's construction equipment as employer's property. The appellant later sued for damages for detinue, loss of income, interest and costs.

Issues

  1. Whether the trial judge erred in holding that the appellant's claim of non-performance due to force majeure and insurgency was false and unbelievable.
  2. Whether the trial judge erred in holding that the respondent was justified in retaining the appellant's construction equipment after termination of the contract.
  3. Whether the trial judge erred in declining to award special, general, punitive, aggravated and exemplary damages and interest to the appellant.

Orders

  • The appeal is dismissed.
  • The respondent is awarded the costs of the appeal.
  • The order for costs in the High Court is upheld.

Key headnotes

Contract Law — Force Majeure — Burden of proving impossibility of performance
A party invoking force majeure to be discharged from contractual performance bears the burden of proving the occurrence of the events and that they rendered performance impossible, not merely more onerous; absent such proof the defence fails.
Contract Law — Force Majeure — Implied term and the requirement of unforeseen, uncontrollable events
Force majeure covers unforeseen events, including acts of God and human acts such as riots and wars, that can be neither anticipated nor controlled; where the events relied on were foreseeable, within the party's knowledge or subsequently resolved, the doctrine cannot be invoked.
Contract Law — Termination — Property in materials and equipment on contractor's default
Where a contract provides that on termination for the contractor's default all materials, plant, equipment and works on site are deemed the property of the employer, that clause is given its literal and ordinary meaning and the employer is entitled to retain the equipment.
Civil Procedure — First Appellate Court — Duty to re-evaluate evidence
A first appellate court is under a common-law obligation to reappraise the evidence on record and reach its own conclusions on issues of fact and law, while making due allowance for not having seen or heard the witnesses.
Evidence — Burden of proof — Special and general damages
A claimant who fails to adduce evidence proving its claimed losses on a balance of probabilities is not entitled to any award of damages, and an appellate court will not interfere with the trial court's refusal to award them.

Legislation cited (4)

  • Contracts Act s.2
  • Contracts Act s.62
  • Constitution of Uganda Article 26
  • Constitution of Uganda Article 26(2)

Cases cited (18)

  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Seller & Another v Associated Motor Boat Company Ltd & Others [1968] 1 EA 123
  • Taylor v Caldwell [1861-73] All ER Rep 24
  • Appleby v Myers [1867] LR 2 CP 651
  • Bank of Uganda v Banco Arabe Espanol (Civil Appeal No. 23 of 2000)
  • Tsakiroglou & Co Ltd v Noblee Thorl GmbH [1962] AC 93
  • Fr. Narsensio Begumisa & 3 Ors v Eric Tibebaga (Civil Appeal No. 17 of 2002)
  • Ryde v Bushell & Another [1967] EA 817
  • Globe Spinning Mills Nigeria PLC v Reliance Textile Industries Ltd (2017) LPELR-41433(CA)
  • PJ Van der Zijden Wildhandel NV v Tucker & Cross Ltd [1975] 2 Lloyd's Rep 240
  • St Aubyn (LM) v Attorney General [1951] 2 All ER 473
  • Geoffrey Gatete & Another v William Kyobe [2007] Vol.1, 158
  • Uganda National Roads Authority v Irumba Asumani & Anor (Civil Appeal No. 2 of 2014)
  • Theodore Ssekikubo & 4 Others v Attorney General & 4 Others (Constitutional Appeal No. 1 of 2005)
  • Printing & Numerical Registering Co v Sampson (1875) LR 19 Eq 462
  • Sharif Osman v Hajji Haruna Mulangira (Civil Appeal No. 380 of 1995)
  • Eseza Catherine Byakika v NSSF (Civil Appeal No. 193 of 2017)
  • Zzimwe Enterprises, Hardwares & Construction Ltd v Attorney General (Civil Application No. 353 of 2020)
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.