Wakilii

Kabu Auctioneers & Court Bailiffs v F.K Motors Ltd (Civil Appeal 19 of 2009)

Supreme Court · [2011] UGSC 24 · 2011 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second appeal to the Supreme Court from a Court of Appeal ruling assessing the monetary value of goods unlawfully distrained
Decision
Appeal allowed in part; the award of 2,300,000,000/= set aside and substituted with an award of US$109,000 as the value of the respondent's goods, with interest, less outstanding rental arrears.

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Holding

The questions were whether the Court of Appeal properly entertained an application to assess the monetary value of unlawfully distrained goods, and whether 2,300,000,000/= could be awarded. The majority held the Court of Appeal correctly acted under Rule 36 of the Judicature (Court of Appeal) Rules to correct its omission to order the value of goods that could not be returned. However, the figure of 2,300,000,000/= was never pleaded nor proved, the valuation witness having admitted he had no qualification, so it could not be awarded. The appeal was allowed in part: the award was set aside and substituted with the pleaded and unchallenged value of US$109,000, with interest, less rental arrears.

Facts

The respondent, F.K. Motors Ltd, was a tenant of the second appellant. It defaulted on rent, owing US$32,154 by March 2001. On 28 March 2001 the first appellant, a bailiff acting for the second appellant's lawyers, closed the premises and locked up the respondent's property for non-payment of rent. The respondent sued for unlawful distress, pleading that its locked-up property was worth US$109,000. The High Court dismissed the suit, held the detention lawful, and allowed the appellants to sell the property to satisfy rent arrears. On appeal, the Court of Appeal held the distress unlawful (the bailiff lacked the certificate required under the Distress for Rent (Bailiffs) Act) and ordered the property returned. The goods could not be returned, having been sold. The respondent then applied to the Court of Appeal for their monetary value, and the court awarded 2,300,000,000/= based on a counter-certification of value given by PW2, who admitted he held no qualification in valuation. The appellants appealed to the Supreme Court.

Issues

  1. Whether the Court of Appeal erred in entertaining Miscellaneous Application No. 72 of 2006 under Rule 36 of the Judicature (Court of Appeal) Rules.
  2. Whether the respondent was entitled to the monetary value of the goods unlawfully distrained where the goods could no longer be returned.
  3. Whether the Court of Appeal erred in finding the value of the respondent's goods to be 2,300,000,000/= when that figure was neither pleaded nor proved.

Orders

  • Appeal allowed in part.
  • The ruling of the Court of Appeal confirmed in part: the respondent is entitled to the monetary value of its goods.
  • The order of the Court of Appeal granting the value of the goods at 2,300,000,000/= set aside.
  • The respondent awarded US$109,000 as the value of its goods.
  • That sum to carry interest at 6% per annum from the date of judgment till payment in full.
  • The appellants to offset any outstanding rental arrears from the US$32,154 owed by the respondent, with interest at 6% per annum from the date of judgment till payment in full.
  • Each party to bear its own costs in the Supreme Court and in the Court of Appeal with respect to Miscellaneous Application No. 72 of 2006.

Key headnotes

Civil Procedure — Court of Appeal — Correction of Errors and Omissions under Rule 36 versus Inherent Power under Rule 2(2)
An appellate court may, under Rule 36 of the Judicature (Court of Appeal) Rules, correct an accidental slip or omission in its judgment or order so as to give effect to its true intention; where such a specific rule applies, the court should proceed under it rather than invoke its general inherent power under Rule 2(2).
Civil Procedure — Pleadings — Departure from Pleadings — Recovery Limited to Amount Pleaded
A party who seeks to recover a sum substantially higher than and different from the value stated in its pleadings must first amend its pleadings; a claim for more than was pleaded cannot stand in law.
Evidence — Burden of Proof — Proof of Value of Goods — Probative Value of Unqualified Valuation Witness
A claimant bears the burden of proving the value of its goods on the balance of probabilities through credible evidence; valuation evidence from a witness who admits he has no qualification in valuation has little probative value and cannot discharge that burden.
Evidence — Unchallenged Pleaded Value — Effect of Failure to Adduce Available Contrary Evidence
Where a party pleads a value and the opposing party, having the means to controvert it, fails to challenge it or to adduce available contrary evidence, that party is taken to have accepted the pleaded value.
Civil Procedure — Additional Evidence on Appeal — Evidence Available at Trial
An appellate court will not grant a party the opportunity to adduce on appeal evidence that was in its possession, or obtainable through proper diligence, at the time of trial, and will not remit the matter for that purpose.

Legislation cited (10)

  • Judicature (Court of Appeal) Rules r.2(2)
  • Judicature (Court of Appeal) Rules r.36(1) and (2)
  • Judicature (Court of Appeal) Rules r.30
  • Distress for Rent (Bailiffs) Act
  • Civil Procedure Rules O.6 r.1
  • Civil Procedure Rules O.6 r.7
  • Civil Procedure Rules O.6 r.9
  • Civil Procedure Rules O.12
  • Evidence Act s.57
  • Constitution of Uganda 1995 art.126(2)(e)

Cases cited (9)

  • Vallabhdas Karsandas Raniga v Mansakhlal Jivraj (1965) EA 700
  • Lakamashi Brothers Ltd v Raja & Sons (1996) EA 313
  • Uganda Development Bank v Oil Seeds (U) Ltd (Civil Application No. 15 of 1997)
  • Joy Tumushabe & Another v Anglo-African Ltd & Another (Civil Appeal No. 7 of 1999)
  • Interfreight Forwarders (U) Ltd v East African Development Bank (Civil Appeal No. 33 of 1992)
  • Walji v Semakula (Civil Appeal No. 40 of 1995)
  • Karmali Tarmohamed & Another v L.H. Lakhani & Company [1958] EA 568
  • Odd Jobs v Mubia (1970) EA 476
  • Nkalubo v Kibirige (1973) EA 102
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.