Wakilii

Sietco v Noble Builders (U) Limited (Civil Appeal 31 of 1995)

Supreme Court · [1997] UGSC 21 · 1997 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Civil appeal (with cross-appeal) from a High Court judgment in a building sub-contract dispute
Decision
Appeal dismissed; cross-appeal allowed and interest varied to run from the date of filing suit

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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 Supreme Court dismissed the appellant's appeal against a High Court award of the contract balance in a building sub-contract dispute. Correcting the plaintiff's name from "Co." to "(U)" was a correctable misnomer of an identifiable party, not a substitution of a new party, and the irregular amendments occasioned no failure of justice as the appellant answered them without objection. The trial Judge had properly exercised his discretion on adjournments and on the pleadings. A substantially completed building contract entitles the builder to the price despite minor defects. The respondent's cross-appeal succeeded: where a plaintiff is deprived of a liquidated sum, interest under s.26(2) of the Civil Procedure Act runs from the date of filing suit, not merely from judgment.

Facts

SIETCO, a Chinese corporation engaged in construction, had contracted with the United Nations Development Programme to build an office block and a residential estate in Kampala, and sub-contracted that work to Noble Builders (U) Ltd. The respondent claimed the balance of the agreed sub-contract price. The appellant counter-claimed for work allegedly not done or badly done in breach of contract, including corrective measures and penalty monies for late completion. During execution there were problems with the quality of finishes, and the parties agreed that SIETCO take over supervision of the respondent's workers, with SIETCO stating it assumed full responsibility for quality. By the time the respondent left the site on 1 March 1989 the office block was complete and occupied and the housing units were substantially complete and partially occupied. The High Court found the respondent had substantially performed, entered judgment for it of US$1,254,567.97 with costs and interest from judgment, and dismissed the counter-claim.

Issues

  1. Whether the proceedings were a nullity because the amended plaint was made without leave and the plaintiff was a non-existent person.
  2. Whether changing the plaintiff's name from "Noble Builders Co. Ltd" to "Noble Builders (U) Ltd" was a correctable misnomer or an impermissible substitution of a new party.
  3. Whether the trial Judge exercised his discretion judicially in refusing the appellant's applications for adjournment.
  4. Whether the trial Judge erred in striking out part of the counter-claim and in expunging and excluding evidence as a departure from the pleadings.
  5. Whether the respondent had substantially performed the building contract so as to be entitled to the contract price.
  6. Whether, on the cross-appeal, interest should run from the date of filing suit rather than from the date of judgment.

Orders

  • Appeal dismissed with costs.
  • Cross-appeal allowed.
  • Order for interest at 12% from the date of judgment set aside and substituted with an order for interest at 12% from the date of filing suit until payment in full.
  • Costs of the cross-appeal awarded to the respondent.

Key headnotes

Civil Procedure — Amendment of Pleadings — Misnomer versus Substitution of a Party
Altering the name of a plaintiff to correct the wrong name of an identifiable existing entity, where the documents founding the claim disclose its true identity and the opposite party was aware of it, is the correction of a misnomer and not the impermissible substitution of a new party.
Civil Procedure — Irregular Amendment without Leave — Failure of Justice
An appellate court will not set aside proceedings on account of amendments made without the required leave where the opposite party filed an amended defence and contested the case on the amended pleadings without objection and no failure of justice resulted.
Civil Procedure — Adjournments — Judicial Exercise of Discretion under Order 15 rule 1
The mere absence of an advocate from court on the date of hearing, without an explanation disclosing why he cannot honour the fixture, does not constitute sufficient cause for an adjournment under Order 15 rule 1 of the Civil Procedure Rules.
Contract Law — Building Contracts — Substantial Performance and Right to the Price
Where a lump-sum building contract has been substantially completed and the other party has had the benefit of the work, liability for the price cannot be repudiated merely because the work is in some respects not in accordance with the contract; the remedy lies in the obligation to make good defects.
Civil Procedure — Interest — Liquidated Sum under s.26(2) Civil Procedure Act
Where a person entitled to a liquidated amount has been deprived of it by the wrongful act of another, interest is awarded from the date of filing suit, not merely from the date of judgment; and interest under s.26(2) of the Civil Procedure Act need not be specifically pleaded to be granted.
Civil Procedure — Pleadings — Departure and Exclusion of Unpleaded Evidence
A party is confined to its pleadings; evidence of a defence or set-off, such as the purchase of materials, that is not pleaded amounts to a departure and may properly be expunged or excluded as taking the opposite party by surprise.

Legislation cited (9)

  • Civil Procedure Act s.26(2)
  • Civil Procedure Act s.101
  • Civil Procedure Rules Order 1 rule 10
  • Civil Procedure Rules Order 6 rule 2
  • Civil Procedure Rules Order 6 rule 18
  • Civil Procedure Rules Order 6 rule 19
  • Civil Procedure Rules Order 13 rule 1(5)
  • Civil Procedure Rules Order 13 rule 5(1)
  • Civil Procedure Rules Order 15 rule 1(1)

Cases cited (20)

  • Adonia Nakudi v Chrisant K. Mukasa (Civil Appeal No. 2 of 1986)
  • Makula International Ltd v H. E. Cardinal Nsubuga & Anor (Civil Appeal No. 4 of 1981)
  • Reliable African Insurance Agencies vs. National Insurance Corporation 1979 HCB 58
  • Fort Hall Bakery Supply Co. vs. Fredrick Mungai Wangoe 1959 EA 474
  • Tetlaw vs. Orela Limited [1920] 2 Ch. 24
  • Davies vs. Elsby Brothers (1961) WLR 170
  • Riches vs. Westminster Bank Limited (1943) 2 ALL ER 725
  • Whittam vs. W. J. Daniel and Co. Ltd. (1962) 1 QB 271
  • Mbogo vs. Shah 1968 EA 94
  • Muhindra Vs Muhindra (1953) 20 EACA 56
  • Habib Javer Manji and Another v. Vir Singh 1962 EA 557
  • Byrd v. Naun (1877) 7 CHD 287
  • Harji Karsam vs. Monjee Ranjhavjee (1943) EACA 10
  • Walji Jather Kanji and Another vs. Elias Freed 1959 EA 1071
  • H. Dakin & Co. Ltd. vs. Lee [1916] I KB 566
  • Hoening vs. Isaacs [1952] 2 ALL ER 176
  • Harbutt's "Plasticine" Ltd. vs. Wayne Tank and Pump Co. Ltd. (1970) IQB 447
  • Mukisa Biscuit Manufacturing Co. Ltd. vs. West End Distributors Ltd. (No. 2) 1970 EA 469
  • Prem Lata vs. Mbiyu, [1965] EA 592
  • J.K. Patel v Spear Motors Ltd (Civil Appeal No. 4 of 1991)
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.