Wakilii

Francis Sembuya v Allports Services(u) Ltd (Civil Appeal 6 of 1999)

Supreme Court · [2000] UGSC 8 · 2000 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second civil appeal to the Supreme Court from the Court of Appeal, which had dismissed an appeal against a High Court judgment given in its original jurisdiction
Decision
Appeal dismissed save that the award of Shs.15,000,000 general damages was set aside; recovery of Shs.147,500,000 with interest at 22% from 1 November 1993 upheld

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Holding

On a second appeal from a High Court decision given in its original jurisdiction, the Supreme Court is not barred by section 7(1) of the Judicature Statute from reconsidering concurring findings of fact. The Court upheld the finding that a particular (ad hoc) partnership existed between the appellant and his co-defendant for the cement transaction, and that the appellant was liable on the doctrine of holding out under section 18 of the Partnership Act despite imperfect pleading, no prejudice having been caused. Special damages of Shs.147,500,000 were proved. However, general damages for breach of a contract to pay money, where property in the goods had passed, were wrongly awarded; the proper compensation is interest. The appeal was otherwise dismissed.

Facts

The appellant and Julius Kamanyi won a tender to supply 20,000 bags of cement to the Northern Uganda Rehabilitation Programme but lacked the funds to purchase the cement. Through an intermediary they engaged the respondent to supply the cement at Shs.12,500 per bag, formalised by a local purchase order on Aero International Ltd letterhead. The respondent delivered cement and was issued a post-dated cheque for Shs.200 million drawn on Kamanyi's personal account, which was dishonoured for lack of funds. Only Shs.53 million (paid from the appellant's Club Pulsations Ltd) was received, leaving Shs.147.5 million outstanding. Negotiations and meetings took place at the appellant's ATC office, where he was General Manager and where his secretary typed the supply invoice on Aero International letterhead. The appellant denied any partnership with Kamanyi and any dealing with the respondent. The courts below believed the respondent's witnesses that the two men were jointly engaged in the cement enterprise and would share the profits.

Issues

  1. Whether the Supreme Court, on a second appeal from a High Court decision given in its original jurisdiction, is barred from reconsidering concurring findings of fact of the courts below.
  2. Whether a particular partnership existed between the appellant and his co-defendant in respect of the cement transaction.
  3. Whether the appellant was liable on the doctrine of holding out under section 18 of the Partnership Act notwithstanding that the doctrine was not specifically pleaded.
  4. Whether the respondent proved its special damages to the required standard.
  5. Whether general damages were properly awarded for breach of a contract to pay a sum of money.

Orders

  • Award of Shs.15,000,000 as general damages set aside; the appeal allowed to that extent.
  • Interest on Shs.147,500,000 at 22% per annum from 1 November 1993 until payment upheld.
  • Appeal otherwise dismissed.
  • Costs of the appeal awarded to the respondent, here and below.

Key headnotes

Civil Procedure — Second Appeals — Reconsideration of concurring findings of fact
On a second appeal from a decision of the High Court given in its original jurisdiction, the Supreme Court is not precluded from reconsidering the concurring findings of fact of the High Court and the Court of Appeal, by virtue of section 7(1) of the Judicature Statute 1996 and rule 29(1) of the Rules of the Supreme Court, though such findings are accorded due respect and disturbed only on a sound basis.
Commercial Law — Partnership — Particular (ad hoc) partnership
A particular partnership may be established where two persons jointly engage in a single commercial enterprise — here purchasing, reselling and sharing the profits of cement — even though no general or registered partnership exists between them.
Commercial Law — Partnership — Holding out (section 18, Partnership Act)
A person who by words or conduct represents himself, or knowingly suffers himself to be represented, as a partner in a firm is liable as a partner to anyone who, on the faith of that representation, has given credit to the firm.
Civil Procedure — Pleadings — Judgment on an unpleaded cause of action
A court may give judgment on a cause of action that was not expressly pleaded where the issue was canvassed and fought out at trial and no prejudice is caused to the opposing party, who came prepared to meet it; the failure to plead is an irregularity cured by the course of the trial.
Damages & Quantum — Breach of contract to pay money — General damages and interest
Where a contract is for the payment of a sum of money and the property in goods has passed, substantial general damages are not normally awarded in addition; the appropriate compensation for being kept out of the money is an award of interest.
Evidence — Special damages — Effect of failure to cross-examine
A party who denies liability and does not cross-examine the opposing witnesses on the figures and quantities pleaded cannot subsequently complain on appeal that the special damages were not strictly proved.

Legislation cited (11)

  • Partnership Act s.18
  • Partnership Act s.40(1)
  • Sale of Goods Act s.49(1)
  • Judicature Statute 1996 s.7(1)
  • Civil Procedure Act s.74(1)
  • Criminal Procedure Act s.337(1)
  • Civil Procedure Rules O.6 r.29
  • Civil Procedure Rules O.11 r.6
  • Rules of the Supreme Court rule 81(1)
  • Rules of the Supreme Court rule 29(1)
  • Rules of the Court of Appeal rule 90

Cases cited (18)

  • Banco Arabe Espanol v Bank of Uganda (Civil Appeal No. 8 of 1998)
  • Hudgell Yeates & Co v Watson [1978] 1 QB 451
  • Interfreight Forwarders Ltd v East African Development Bank (Civil Appeal No. 33 of 1992)
  • Uganda v Kabali (1975) EA 185
  • Ephraim Ongom Odongo v Francis Benega Bongo (Civil Appeal No. 10 of 1997)
  • Keith Spicer Ltd v Mansell [1970] 1 WLR 333
  • Bank of Uganda v Transroad Ltd (Civil Appeal No. 3 of 1997)
  • Dhanji Ramji v Rambhai (1970) EA 515
  • Gandy v Caspair Air Charter Ltd (1956) 23 EACA 139
  • A.W. Biteremo v D. Munyanda Situma (Civil Appeal No. 115 of 1991)
  • Phillips v Ward [1956] 1 All ER 874
  • Patel v Patidar (1944) 11 EACA 1
  • Traill v Bowker (1947) 14 EACA 20
  • Obungo v Municipal Council of Kisumu (1971) EA 91
  • H.H.llang v M Manyema (1961) E.A 705
  • Sharriff v Singh (1961) EA 72
  • Kemp v Tolland [1956] 2 Lloyd's Rep 681
  • Miliangos v George Frank (Textiles) Ltd [1975] QB 487
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.