Wakilii

Kamo Enterprises Ltd v Krystalline Salt Ltd (Civil Appeal 8 of 2018)

Supreme Court · [2021] UGSC 74 · 2021 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second civil appeal to the Supreme Court from the Court of Appeal, originating in a High Court summary suit for recovery of a debt for goods supplied
Decision
Appeal dismissed by a majority of 4 to 1; judgments of the Court of Appeal and High Court upheld

The full judgment

Read the complete, verbatim text of this judgment.

Sign in to read the full judgment
Cited — treatment unverified cited in 3 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

The Supreme Court, by a 4-1 majority, dismissed a second appeal from a salt-supply debt claim. It held that the Court of Appeal could not be faulted for determining the appeal on a record from which the appellant's own counsel had omitted the witness statements: having certified the record as correct, the appellant bore the duty to cure any defect by filing a supplementary record and did not do so. On a second appeal the Court will not disturb concurrent findings of fact absent special circumstances. Once the respondent proved supply of the salt, the evidential burden shifted to the appellant to prove payment, which it failed to do. The counterclaim, resting on documents found to be forgeries, was not proved.

Facts

Krystalline Salt Limited supplied salt to Kamo Enterprises Limited. It sued in the High Court (Commercial Division) by summary suit to recover USD 105,601 said to be unpaid for salt supplied. Kamo obtained leave to defend, denying liability and asserting it had paid cash in advance for all the salt, and counterclaiming USD 375,960 for salt it claimed to have paid for but which was never delivered (the counterclaim having been amended from USD 5,000 by consent). The trial judge entered judgment for Krystalline for USD 105,601 with 8% interest and costs and dismissed the counterclaim, finding several receipts the appellant relied on to be forgeries. The Court of Appeal upheld that decision, proceeding despite the appellant's witness statements being missing from the record of appeal, which the appellant's own counsel had prepared and certified as correct. Kamo appealed to the Supreme Court.

Issues

  1. Whether the Court of Appeal erred by failing to re-evaluate and re-appraise all the evidence and wrongly concluding that the supply of salt was not in dispute.
  2. Whether the Court of Appeal could properly determine the appeal on a record of appeal that omitted the appellant's witness statements (evidence in chief).
  3. Whether the Court of Appeal correctly applied the principle of the evidential burden of proof.
  4. Whether the appellant proved its counterclaim on a balance of probabilities.

Orders

  • By a majority of 4 to 1, the appeal is dismissed.
  • Costs of this Court and of the courts below awarded to the respondent.

Key headnotes

Civil Procedure — Record of Appeal — Appellant's duty to compile and certify a complete record
An appellant who prepares and certifies the record of appeal as correct bears the duty to ensure it is complete; where material such as witness statements is omitted, the remedy is to file a supplementary record, and the appellant cannot later fault the appellate court for proceeding on the record it certified.
Civil Procedure — Second Appeal — Concurrent findings of fact
On a second appeal the court is precluded from questioning concurrent findings of fact of the lower courts where there is evidence to support them, and will depart from such findings only where special circumstances justify doing so.
Evidence — Burden of Proof — Distinction between legal and evidential burden
The legal burden of proof is fixed by law and never shifts, the civil standard being proof on a balance of probabilities; the evidential burden is the burden of adducing evidence and shifts between parties, so that once a supplier proves delivery of goods the evidential burden shifts to the buyer to prove payment.
Evidence — Proof of Counterclaim — Documents found to be forgeries
A counterclaim for refund of payments for undelivered goods is not proved on a balance of probabilities where it rests on documents found by the lower courts to be forgeries or not to evidence any payment, and the claimant fails to adduce cogent independent proof of the alleged cash payments.
Civil Procedure — First Appellate Court — Duty to re-evaluate evidence
A first appellate court has a duty to review and re-evaluate the evidence and reach its own conclusions, but may proceed on a partial record where the available material is sufficient to determine the appeal without prejudice to any party.

Legislation cited (14)

  • Evidence Act Cap 6 ss.101-106
  • Evidence Act Cap 6 s.103
  • Judicature Act s.10
  • Judicature Act s.11
  • Constitution of Uganda Article 134(2)
  • Judicature (Court of Appeal Rules) Directions Rule 30(1)
  • Judicature (Court of Appeal Rules) Directions Rule 31
  • Judicature (Court of Appeal Rules) Directions Rule 83
  • Judicature (Court of Appeal Rules) Directions Rule 87
  • Judicature (Court of Appeal Rules) Directions Rule 88
  • Judicature (Court of Appeal Rules) Directions Rule 90
  • Judicature (Supreme Court Rules) Directions Rule 32(2)
  • Judicature (Supreme Court Rules) Directions Rule 82(1)
  • Judicature (Supreme Court Rules) Directions Rule 86

Cases cited (13)

  • Banco Arab Espanol v Bank of Uganda (Civil Appeal No. 8 of 1998)
  • Nicholas Roussos V Gulamu Hussein Habib Virani and Others SCCA No. 0 of 1993
  • Richard Evans & Co Ltd v Astley [1911] AC 674
  • Bradshaw v McEwans Pty Ltd (1959) 101 CLR 298
  • J.K. Patel v Spear Motors Ltd (Civil Appeal No. 4 of 1991)
  • Betuco (U) Ltd & Anor v Barclays Bank of Uganda Ltd & 3 Others (Civil Appeal No. 1 of 2017)
  • Kenya Commercial Bank Ltd & another Vs Samuel Kamau Macharia & others CACA No. 181/2004 (K)
  • Fr. Narsensio Begumisa & Others v Eric Tibebaga (Civil Appeal No. 17 of 2002)
  • Jacob Mutabazi v The Seventh Day Adventist Church (Civil Appeal No. 88 of 2011)
  • Kifamunte Henry v Uganda (Criminal Appeal No. 7 of 1997)
  • Nazmudin Gulam Hussein Viram v Nicholas Roussos (Civil Appeal No. 1 of 2006)
  • R. Mohamed Ali Hasham v R (1941) 8 EACA 93
  • Kansiime Brazio and Kibarikola Molly v Uganda (Criminal Appeal Nos. 12 of 2008 and 39 of 2009)
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.