Luwero Green Acres Ltd v Marubeni Corporation [1997] UGSC 2

Supreme Court · 1997 Appeal Allowed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Second civil appeal to the Supreme Court from a High Court decision that (hearing the matter ex parte) allowed the respondent's appeal from the Chief Magistrate's Court.

Decision

Appeal allowed; High Court judgment set aside and the Chief Magistrate's judgment for the appellant restored, with costs to the appellant.

The full judgment

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Holding

The Supreme Court held that the first appellate judge erred by relying on an affidavit and annextures filed in support of an application for leave to appear and defend a summary suit; such material forms part of the record but is never evidence in the suit itself and must be proved at trial. On the evidence, including DW1's admission, the contract was oral, so section 90 of the Evidence Act did not apply and the judge wrongly found a written agreement. Having received, dried, trimmed and marked all 2,525 poles, the respondent accepted them, completing the contract, and could not later reject 225 poles or refuse the retention balance. Appeal allowed; the High Court judgment was set aside and the Chief Magistrate's judgment restored.

Facts

By an oral agreement the appellant supplied wooden poles to the respondent at shs 20,000 per pole. On each delivery the respondent paid 85% of the value and retained 15%, to be paid at the end of the contract. The appellant supplied a total of 2,525 poles valued at shs 50,500,000; the respondent paid 85% (shs 42,925,000), retaining shs 7,575,000. At the contract's end the respondent paid only shs 3,075,000 of the retention, leaving shs 4,500,000 unpaid. The respondent claimed 225 poles were below specification and rejected, so the balance was not payable. The poles had been supplied green and were then dried, trimmed and marked with the respondent's number plates, indicating acceptance. The appellant sued under summary procedure to recover shs 4,500,000. The Chief Magistrate found for the appellant; the respondent appealed to the High Court, which, hearing the appeal ex parte after the appellant's absence, allowed the appeal. The appellant appealed to the Supreme Court.

Issues

Whether the first appellate judge failed in his duty to re-appraise and re-evaluate the evidence and reach his own conclusions.
Whether an affidavit filed in support of an application for leave to appear and defend a suit brought under summary procedure is evidence in the suit itself.
Whether there was a written agreement between the parties such that section 90 of the Evidence Act excluded oral evidence of the contract.
Whether the appellant had supplied and the respondent accepted all 2,525 poles, completing the contract and entitling the appellant to the unpaid 15% retention balance.

Orders

Appeal allowed with costs here and in the courts below.
Judgment and Order of the High Court judge on appeal set aside.
An order substituted dismissing the respondent's appeal and confirming the judgment and orders of the Chief Magistrate.
Appellant to have its costs of the appeal and in the courts below.

Key headnotes

Appeals — Duty of the First Appellate Court to Re-evaluate the Evidence

A first appellate court is under a duty to reconsider and evaluate the whole of the evidence and to reach its own conclusions, bearing in mind that it did not see and hear the witnesses testify.

Summary Procedure (Order 33) — Affidavit for Leave to Defend Is Not Evidence in the Suit

An affidavit filed in support of an application for leave to appear and defend a suit brought under summary procedure remains part of the record but is in no circumstances evidence in the suit itself; a party wishing to rely on its contents must adduce that evidence in the ordinary manner at trial.

Section 90 Evidence Act — Exclusion of Oral Evidence Applies Only to Written Contracts

Section 90 of the Evidence Act, which excludes oral evidence offered to vary the terms of a document, applies only where the terms of the contract have been reduced to writing; it has no application where the contract is oral.

Supply of Goods — Acceptance by Alteration of Goods Completes the Contract

Where a buyer receives goods and alters their state to suit its own requirements, the goods are thereby accepted, the contract is complete and the goods become the buyer's property; the buyer cannot afterwards reject part of the goods or refuse to pay the agreed retention.

Legislation cited (4)

Evidence Act s.90
Evidence Act s.78
Civil Procedure Rules O.33
Civil Procedure Rules O.39 r.1(2)

Cases cited (5)

R v Pandya (1957) EA 336
Selle v Associated Motor Boat Co (1968) EA 123
James Nsibambi v Lovinsa Nankya (1980) HCB 81
Ephraim Ongom Odong and Anor v Francis Binega Donge (Civil Appeal No. 10 of 1987)
Hassanah Issa & Co v Jeraj Produce Stores (1967) EA 555

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.