Wakilii

Allibai Panju and Sons (Tanganyika) Ltd v Nanji (Civil Appeal No. 40 of 1949)

East African Court of Appeal · [1949] EACA 17 · 1949 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from decision of High Court of Tanganyika challenging dismissal of claim for damages for non-acceptance of goods
Decision
Appeal dismissed; original judgment for defendant upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal dismissed the appeal, holding that the contract was for white mtama based on the contract price and the parties' mutual understanding, even though the contract note did not specify colour. Evidence of sale by sample or trade custom was inadmissible as not pleaded. The magistrate correctly declined to rule on no case to answer when he was the judge of fact, and the appellants could not be permitted to call evidence after electing not to do so at trial.

Outcome

Appeal dismissed; original judgment for defendant upheld

Facts

By contract note dated 29 October 1946, the respondent agreed to purchase 30 tons of mtama from the appellants at Sh. 500 per ton. The respondent refused to accept part of the consignment on the ground that it consisted of red mtama rather than white mtama. The appellants sued for damages for non-acceptance. At trial, after the respondent closed his case, the appellants submitted there was no case to answer. When the magistrate declined to rule, the appellants called no evidence. The magistrate dismissed the claim, finding that the contract was for white mtama based on the contract price of Sh. 500 per ton, which was the prevailing price for white mtama, whereas red mtama cost Sh. 350 per ton. The broker's evidence showed both parties believed they were contracting for white mtama.

Issues

  1. Whether the mtama tendered by the appellants was of the description for which the bargain was struck.
  2. Whether evidence of sale by sample or custom of trade was admissible where not pleaded.
  3. Whether the magistrate was correct to decline to give a ruling at the close of the defendant's evidence.
  4. Whether the appellants should be permitted to call evidence after electing not to do so at trial.

Orders

  • Appeal dismissed.
  • Costs awarded to the respondent.

Rules and key headnotes

Contract Law — Sale of Goods — Mutual Mistake as to Subject Matter — Admissibility of Extrinsic Evidence
Where both parties to a contract for the sale of goods believe they are contracting for goods of a particular description, extrinsic evidence of their mutual understanding is admissible under the second proviso to section 92 of the Indian Evidence Act to establish what was actually contracted for, even where the written contract does not specify that description.
Contract Law — Sale of Goods — Contract Price as Evidence of Subject Matter
The contract price may be sufficient evidence to establish the description of goods contracted for where the price corresponds to the market price of goods of a particular quality and differs materially from the price of goods of another quality.
Evidence — Pleadings — Inadmissibility of Evidence Not Pleaded
Evidence of sale by sample or custom of trade is inadmissible where the party relying on such matters has not pleaded them, and the fact that such evidence was not objected to at trial does not render it admissible either for the trial court or on appeal.
Civil Procedure — No Case to Answer — Judge Sitting Alone — Duty to Decline Ruling
Where a judge sitting alone is also the judge of fact, it is highly inconvenient and incorrect for the judge to be asked to express any opinion on the evidence at the close of one party's case, and the judge should decline to give a ruling on a submission of no case to answer until all evidence is completed.
Civil Procedure — Election Not to Call Evidence — No Second Chance on Appeal
Where a litigant elects not to call evidence for tactical reasons and loses the case, an appellate court will not permit that litigant to have another opportunity to call evidence, as to do so would allow a party to avoid the risk of cross-examination and then seek a second chance if the tactic fails.

Legislation cited (3)

  • Indian Code of Civil Procedure 1908 s.151
  • Indian Code of Civil Procedure 1908 Order 18 rule 2
  • Indian Evidence Act s.92

Cases cited (2)

  • Alexander v Rayson (52 TLR 131)
  • Smith v Hughes (1871) LR 6 QB 597

Full judgment

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

Allibai Panju and Sons (Tanganyika) Ltd v Nanji (Civil Appeal No. 40 of 1949) [1949] EACA 17 (1 January 1949)
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.