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Hwan Sung Industries Ltd vs Tajdin Hussein & 2 Ors [2009] UGSC 17

Supreme Court · 2009 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second civil appeal to the Supreme Court from a Court of Appeal decision in a sale of goods dispute
Decision
Appeal dismissed and Court of Appeal decision confirmed; appellant liable to pay the US$8,000 contract balance with 6% interest

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Holding

The Supreme Court dismissed the second appeal and confirmed the Court of Appeal. The contract was a sale of goods by both description and sample, so under the Sale of Goods Act the trial judge was obliged to determine whether the goods supplied corresponded with the sample; he failed to do so and instead decided on an unframed issue of fitness for purpose without hearing the parties. The Court of Appeal properly discharged its duty as first appellate court by re-evaluating the evidence, which showed the appellant tested 'orange flavour' rather than the contracted 'orange oil' with no proven link to the goods supplied. The appellant therefore failed to prove non-conformity, and the counter-claim for the US$8,000 balance was rightly upheld.

Facts

The appellant manufactured ice cream and in December 2000 ordered 2,000 kg of orange oil from the respondents for spicing its 'Cool Cool Bar' brand. A written contract for sale was executed at US$8,000, the buyer to pay half upfront and the balance after delivery, the supplier to supply 'as per sample' delivered before signing, and the buyer entitled to reject goods not of the same quality as the sample. The appellant paid US$8,000 as 50% part payment after a sample was provided, and the respondents supplied the goods. The appellant claimed that on examination the goods were unsatisfactory, subjected them to internal and Uganda National Bureau of Standards testing, rejected them, and demanded a refund. The respondents denied liability, contending the goods complied with the sample and that the appellant complained only three days after delivery, and counter-claimed for the US$8,000 balance. The samples tested by the appellant's witnesses were of 'orange flavour' rather than the contracted 'orange oil', and could not be connected to the goods actually supplied.

Issues

  1. Whether the Court of Appeal, as first appellate court, failed to re-evaluate the evidence on record and thereby reached wrong conclusions.
  2. Whether the trial judge wrongly based his decision on an issue (fitness for purpose) that was neither framed nor argued by the parties.
  3. Whether the respondents' counter-claim for the US$8,000 balance of the contract price was proved.

Orders

  • Appeal dismissed.
  • Decision of the Court of Appeal confirmed.
  • Costs of the appeal in the Supreme Court and in the courts below awarded to the respondents.

Key headnotes

Sale of Goods — Sale by Description and Sample — Correspondence with Sample
Where goods are sold by both description and sample under section 16 of the Sale of Goods Act, the seller is obliged to supply goods corresponding with both the description and the sample, and the buyer is entitled to reject goods that fail to correspond.
Burden of Proof — Sale of Goods — Linking Goods Tested to Goods Supplied
A buyer alleging that supplied goods do not conform to the contract sample bears the burden of adducing evidence connecting the goods tested to the goods actually delivered; testing a different product with no proven link to the consignment supplied does not discharge that burden.
Framing and Amendment of Issues — Order 15 CPR — Right to be Heard
Although a trial court has power to frame or amend issues, that power must be exercised to bring out the real matters in contention, the parties must be heard on any new issue, and the court may not base its decision on an issue that obscures the real matters in dispute or on which the parties were not invited to address it.
Appeals — Duty of the First Appellate Court to Re-evaluate Evidence
A first appellate court is under a duty to reconsider and re-evaluate the evidence on record and to arrive at its own conclusions.

Legislation cited (3)

  • Sale of Goods Act s.16
  • Civil Procedure Rules O.15 r.1(5)
  • Civil Procedure Rules O.15 r.5(1)

Cases cited (2)

  • Oriental Insurance Brokers Ltd v Transocean Ltd (Civil Appeal No. 55 of 1995)
  • Odd Jobs v Mubia (1970) EA 476
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.