Wakilii

Biyinzika Enterprises (Farmers) Ltd v Ssegane (Civil Appeal No. 8 of 2015)

High Court · [2016] UGCOMMC 25 · 2016 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from the Chief Magistrate's Court of Mengo judgment dated 6 March 2015 in Civil Suit No. 255 of 2013
Decision
Appeal partially allowed; special and general damages reduced but respondent substantially successful

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court Commercial Division allowed the appeal in part. The court held that the contract was oral (or implied from conduct), and that unilateral documents (receipt and delivery note) issued by the seller did not constitute a written agreement between both parties. Though the buyer took possession of day-old chicks by signing a delivery note, the goods were returned the same day because they were defective and dying. The court found that the seller's officials acquiesced in receiving the goods back and attempting to revive them, estopping the seller from insisting that risk had passed to the buyer. The buyer was entitled to reject defective goods. Special damages were reduced from UGX 5,232,000 to UGX 4,292,000 because the buyer failed to mitigate loss by refusing 400 surviving chicks. General damages were proportionally reduced from UGX 8,000,000 to UGX 6,400,000.

Outcome

Appeal partially allowed; special and general damages reduced but respondent substantially successful

Facts

On 20 November 2012, the respondent (plaintiff in the lower court) paid UGX 5,232,000 to the appellant for the purchase of 2,226 day-old chicks plus 44 bonus chicks for collection on 20 December 2012. On the collection date, the respondent signed a delivery note/invoice. The respondent contended that when he attempted to inspect the chicks, he discovered defects (wrong colour, lack of immunisation) and that the chicks were dying. He returned them to the appellant's premises the same day and reported the matter to police. The appellant's case was that the respondent took delivery, left with the chicks, and only brought them back hours later after they had suffocated due to his mishandling. The appellant's veterinary doctor testified that the respondent called her at 4:30 PM reporting that chicks were dying in a bus and that she advised him to return them for resuscitation. Some chicks were revived but ultimately 400 survived initially and all eventually died in the appellant's custody. The trial magistrate found for the respondent, awarding refund of the purchase price plus general damages.

Issues

  1. Whether the contract between the appellant and respondent was oral or in writing.
  2. Whether the learned trial magistrate erred in permitting the respondent to present a case which departed from his pleadings.
  3. Whether the respondent was accorded an opportunity to examine the chicks and whether he took delivery thereof.
  4. Whether the trial magistrate properly evaluated the evidence on liability.
  5. Whether the awards of special damages and general damages were justified.

Orders

  • The respondent/plaintiff is awarded special damages of Uganda shillings 4,292,000 only by way of refund.
  • The plaintiff/respondent is awarded Uganda shillings 6,400,000 as general damages.
  • The above sums carry interest at the rate of 24% per annum from the date of judgment in the lower court till payment in full.
  • The respondent is awarded 4/5ths of the costs of the appeal.
  • Costs of the lower court remain costs to the plaintiff and are only affected by the quantum substituted above.

Rules and key headnotes

Formation of Contract — Oral or Written Contract — Unilateral Documents
A unilaterally executed receipt or delivery note issued by one party is evidence of a contractual relationship but does not constitute a written agreement between the parties. A contract requires free consent of both parties with capacity to contract. Where no bilateral written agreement is signed, the contract may be oral, partly oral and written, or implied from conduct.
Sale of Goods — Passing of Property and Risk — Acquiescence by Seller
Where a seller's officials accept returned goods and attempt to revive them, the seller acquiesces in resuming responsibility for the goods. This conduct estops the seller from insisting that property and risk had irreversibly passed to the buyer upon initial delivery, even if a delivery note was signed.
Sale of Goods — Rejection of Goods — Reasonable Opportunity to Inspect
Under the Sale of Goods Act, where goods have been delivered to a buyer who has not previously examined them, the buyer is not deemed to have accepted them until he has had a reasonable opportunity to examine them to ascertain conformity with the contract. A buyer who discovers defects upon inspection is entitled to reject the goods.
Pleadings — Departure from Pleadings — Variance Between Pleading and Evidence
A party who departs from his pleadings and gives evidence contradicting his pleadings may be deemed to be lying. However, where the trial court's conclusion does not depend on the alleged departure but rests on legal doctrine (such as the right to reject defective goods), the issue of departure may not vitiate the judgment if the material facts supporting the legal doctrine are established.
Mitigation of Loss — Duty to Mitigate — Refusal of Substitute or Surviving Goods
A buyer who rejects defective goods has a duty to mitigate his loss. Where the seller offers surviving or replacement goods, the buyer's refusal to accept them will reduce the quantum of recoverable damages by the value of the goods refused.
Appeals — First Appellate Court — Duty to Re-evaluate Evidence
A first appellate court must reconsider and evaluate the evidence and draw its own conclusions, though it should make due allowance for not having seen or heard the witnesses. The appellate court is not bound by the trial judge's findings if the trial judge clearly failed to take account of particular circumstances or probabilities, or if the impression based on demeanour is inconsistent with the evidence generally.
Oral Evidence — Admissibility to Supplement Written Documents
Under section 92(b) of the Evidence Act, oral evidence may be admitted where a written document is silent on a matter agreed by the parties. The consideration of oral evidence alongside written receipts or delivery notes does not prejudice a party who had the opportunity to cross-examine on that oral evidence.

Legislation cited (12)

Cases cited (14)

  • Uganda Revenue Authority v Stephen Mabosi [1996] KALR 153
  • Namusisi and others v Ntabaazi [2006] 1 EA 247
  • Doshi Hardware (U) Ltd v Alan Construction Ltd [2009] KALR 464
  • Abdulla Ali Nathoo v Walji Hirji [1957] EA 207
  • Re A Debtor (Number 38 of 1938) [1938] 4 All ER 308
  • Horn v Minister of Food [1948] 2 All ER 1036
  • Crown Beverages Limited v Central [2006] 2 EA 43
  • Rapid Shipping and Freight Uganda Ltd and Rapid Freight International LLC v Copy Line Limited (HCMA No. 216 of 2012)
  • S.S. Ardennes (Cargo) v S.S. Ardennes (Owners) [1950] 2 All ER 517
  • Ephraim v Francis (SCCA No. 10 of 1987)
  • Selle and another v Associated Motor Boat Company Ltd and others [1968] 1 EA 123
  • Peters v Sunday Post Limited [1958] 1 EA 424
  • Watt v Thomas [1947] AC 484
  • Gouster Enterprises Ltd v Ouma (SCCA No. 8 of 2008)

Full judgment

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

Biyinzika Enterprises (Farmers) Ltd v Ssegane (Civil Appeal No. 8 of 2015) [2016] UGCommC 25 (18 March 2016)
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.