Wakilii

Afrofreight Forwarders Ltd v Shell (Uganda) Ltd (Civil Appeal No. 083 09)

Court of Appeal · [2011] UGCA 16 · 2011 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First appeal from a High Court judgment dismissing a civil suit for sums withheld under a contract of carriage
Decision
Appeal dismissed; appellant held liable for excess transit losses and denied handling charges

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal dismissed a carrier's appeal against the dismissal of its claim for sums withheld by an oil company on account of excess transit losses. The court found that the contract of carriage was contained in two written letters (not unwritten as the trial judge held), under which the appellant had undertaken to take responsibility for losses exceeding 0.25% of allowable levels. Applying the burden of proof under sections 101-103 of the Evidence Act, the court held the appellant, having asserted that no losses occurred, bore the burden of proving its pleaded assertions and failed to discharge it. The respondent proved excess transit losses, and the appellant was liable. The claim for handling charges was unproven.

Outcome

Appeal dismissed; appellant held liable for excess transit losses and denied handling charges

Facts

The appellant, a Kenyan company engaged in shipping, clearing and forwarding, entered into a contract with the respondent oil company to convey petroleum products by train wagon from depots in Mombasa and Eldoret to the respondent's depots in Kampala. The arrangement was contained in two letters dated 18 and 29 September 1997, signed by the appellant's Managing Director. Between February 1998 and June 2000 the appellant conveyed over 750 wagons of oil products and raised invoices, most of which were paid. On termination of the contract an outstanding balance (around US$256,696 to US$267,662) remained. The respondent refused to pay, claiming it suffered excess transit losses during transportation and was entitled to withhold payment. In the letter of 18 September 1997 the appellant had undertaken to take responsibility for losses exceeding 0.25% of allowable levels. A joint dipping exercise in May 2000 showed some wagons recording losses, some gains, and some neither. The appellant sued for the withheld sum; the High Court dismissed the claim.

Issues

  1. Who bore the burden to prove the existence or non-existence of excess transit losses.
  2. Whether the respondent suffered excess transit losses in fact.
  3. Whether the appellant was liable for those losses under the contract.
  4. Whether the appellant was entitled to handling charges under the contract.

Orders

  • The appeal fails and is dismissed with costs to the respondent both here and in the High Court.

Rules and key headnotes

Evidence — Burden of Proof — Party Asserting Facts in the Pleadings
A plaintiff who asserts particular facts in its plaint, such as that no transit losses occurred and that apparent losses were mere reading variations, bears the burden of proving those asserted facts to the required standard under sections 101 to 103 of the Evidence Act.
Contract Law — Formation — Contract Constituted by Exchange of Correspondence
A contract of carriage may be constituted by correspondence exchanged between the parties stating the consideration and material terms, and such a contract is a written rather than an unwritten contract.
Contract Law — Carriage of Goods — Allocation of Liability for Transit Losses
Where a carrier expressly undertakes by the contract to take responsibility for losses exceeding an agreed allowable level, it is liable for proven excess transit losses and cannot rely on consignments which recorded no losses to escape liability for those which did.
Civil Procedure — First Appeal — Duty to Re-evaluate Evidence
The Court of Appeal, as a first appellate court, has the duty to re-evaluate the evidence as a whole and reach its own conclusions of fact, while bearing in mind that it did not see or hear the witnesses, and may reverse the findings of a trial judge where its own re-evaluation shows those findings were wrong.
Contract Law — Variation — Unilaterally Introduced Charges
A claim for handling charges introduced by one party after the contract commenced cannot be recovered where the other party did not agree to the charges and the claim was neither specifically pleaded nor proved at trial.

Legislation cited (4)

Cases cited (1)

  • Rwakushuriju Marious & others v Uganda Revenue Authority SCCA No.II/05 (unreported)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Afrofreight Forwarders Ltd v Shell (Uganda) Ltd (Civil Appeal No. 083 09) [2011] UGCA 16 (21 September 2011)
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.