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Crane Insurance Company v Shelter Uganda Limited (Civil Appeal 14 of 98)

Court of Appeal · [1998] UGCA 34 · 1998 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from High Court judgment on a supply guarantee bond claim
Decision
Appeal dismissed; High Court judgment holding the appellant liable on the guarantee bond 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 against a High Court judgment holding the appellant liable on a supply guarantee bond. A plaintiff is at liberty to sue defendants jointly or severally, and judgment may be entered against one defendant according to its liability under Order 1 rules 3 and 4 of the Civil Procedure Rules. The trial judge properly proceeded against the appellant alone, though he should have struck out the unserved second defendant; failure to do so caused no miscarriage of justice since the appellant may still sue that defendant for indemnity. Admission of the exhibits, unobjected to at trial, was proper, and the trial judge correctly evaluated the evidence on a balance of probabilities.

Outcome

Appeal dismissed; High Court judgment holding the appellant liable on the guarantee bond upheld

Facts

The appellant executed a supply Guarantee Bond dated 19 April 1995 in favour of the respondent, guaranteeing supply of goods worth Ug.Shs.20,975,000 to Speedy Delivery Ltd, the second defendant. On 19 May 1995 the second defendant took delivery of corrugated iron sheets worth Ug.Shs.18,600,000. The appellant and second defendant were to pay within thirty days of supply but failed to meet their obligations. The respondent sued both in the High Court. The appellant denied liability, alleging no acceptance letter was written as a condition precedent, that there was no delivery of goods, and that the transaction was fraudulent and concealed from it. The second defendant neither appeared nor filed a defence and had not been served. At the hearing, the respondent elected to proceed against the appellant alone. The trial judge allowed this, found the goods were delivered, held the appellant liable on its bond, and ordered payment of the principal sum with interest and general damages.

Issues

  1. Whether the trial judge erred in allowing the plaintiff to proceed against one defendant alone in a jointly instituted suit without first formally discontinuing against the other defendant.
  2. Whether reserving a ruling on that application and failing to strike out the second defendant caused a miscarriage of justice or breached natural justice.
  3. Whether the trial judge erred in admitting exhibit P.IV and oral evidence explaining exhibit P.III.
  4. Whether the trial judge properly evaluated the evidence and applied the correct standard and burden of proof.

Orders

  • Appeal dismissed with costs to the respondent in this court and in the High Court.

Rules and key headnotes

Civil Procedure — Joinder of Defendants — Liberty to Sue Jointly or Severally
A plaintiff is at liberty to sue any defendant or defendants jointly or severally against whom it has a cause of action, and under Order 1 rules 3 and 4 of the Civil Procedure Rules judgment may be given against one or more defendants according to their respective liabilities.
Civil Procedure — Discontinuance — Failure to Strike Out Unserved Defendant
Where counsel indicates a wish not to proceed against a defendant who has not been served and has not entered an appearance, the trial judge should strike out that defendant's name, but a failure to make such a formal ruling before trial does not of itself occasion a miscarriage of justice.
Civil Procedure — Framing of Issues — Duty of the Court
Under Order 13 rules 4 and 5 of the Civil Procedure Rules it is the duty of the trial judge, not of counsel, to frame issues after consultation with the parties, and the judge may amend, strike out or add issues at any time before the decree.
Evidence — Admissibility — Failure to Object at Trial
An appellate court will not fault the admission of a document in evidence where counsel did not object to its admissibility at trial, and oral evidence that merely clarifies established procedure without adding to or subtracting from documentary evidence is properly admitted.
Evidence — Burden and Standard of Proof — Balance of Probabilities
In civil proceedings the standard of proof is on the balance of probabilities, and once the plaintiff adduces cogent and credible evidence the evidential burden shifts to the defendant to produce evidence rebutting it.

Legislation cited (7)

Cases cited (7)

  • FSSO (U) LTD. V. Semu Amanu Opio 1992-93 HCB 107
  • Betemuka v. Anvwar [1987] HCB 71
  • FIDA BIRABWA VS. SOLOMON TIGAWANA [1993] V. KALR - 2
  • Prince JDC Rukidi v Prince Salomon Isuru (Civil Appeal No. 18 of 1994)
  • Choitram v. Lazar [1959] EA 157
  • Musisi Dirisa v Sietco (U) Ltd (Civil Appeal No. 24 of 1993)
  • Miller v. Minister of Pensions [1947] 2 All ER 372

Full judgment

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

Crane Insurance Company v Shelter Uganda Limited (Civil Appeal 14 of 98) [1998] UGCA 34 (20 November 1998)
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.