Wakilii

Doshi Harsware (U) Ltd v Security Group (U) Ltd (Civil Appeal No. 0064 of 2011)

Court of Appeal · [2019] UGCA 185 · 2019 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First appeal from a High Court (Commercial Division) judgment dismissing a civil suit for recovery of losses under a guarding contract
Decision
Appeal allowed; dismissal reversed and suit remitted to the High Court for retrial before another judge

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that the doctrine of subrogation and the principle of unjust enrichment did not bar the appellant, who had received only partial indemnity from its insurers, from suing the third party responsible for its loss to recover the unpaid balance; insurance monies received by a plaintiff are not to be taken into account in assessing damages against a wrongdoer. The Court further held that an advocate cannot be condemned to pay costs personally without being accorded a hearing, and that the claim extended beyond contract to negligence. The appeal substantially succeeded, the dismissal was reversed, and the suit was ordered to be retried before another judge.

Outcome

Appeal allowed; dismissal reversed and suit remitted to the High Court for retrial before another judge

Facts

The appellant contracted the respondent to provide security services for its business premises at Bugolobi, Kampala, paying consideration of UGX 921,344. The respondent undertook to keep the premises and goods safe from theft, burglary and vandalism. In June and October 2005 the appellant lost goods, allegedly through the respondent's default. The appellant claimed against its insurer and was paid only part of the loss. It then sued the respondent to recover the loss but, on realising part had been paid, amended the plaint to claim only the unpaid balance of UGX 76,234,573. The trial judge dismissed the suit, finding the claim was brought in bad faith and amounted to unjust enrichment since the insurer had already paid, and further noted a UGX 800,000 third-party limitation clause in the guarding contract. The trial judge ordered that half the suit costs be paid by the appellant and half by the appellant's advocates. The suit had been determined without any witness or evidence being called.

Issues

  1. Whether the trial judge erred in relying on the un-amended plaint after allowing amendment of the plaint.
  2. Whether an assured who has received partial indemnity from his insurer is barred by the doctrine of subrogation or unjust enrichment from recovering the unpaid balance of his loss from a third party responsible for the loss.
  3. Whether the trial judge erred in ordering the appellant's advocate to personally pay half of the costs without according him a hearing.

Orders

  • Appeal substantially succeeds and the decision of the trial court dismissing the suit is reversed.
  • High Court Civil Suit No. 111 of 2007 be retried before another Judge.
  • Costs of this appeal are granted in favour of the appellant.
  • Since there was no substantive trial of the matter at the High Court before appeal, each party to bear their own costs of the trial.

Rules and key headnotes

Insurance — Subrogation — Partially indemnified assured's right to recover balance from third party
An assured who has received only partial indemnity from his insurer is entitled to recover the unpaid balance of his loss from a third party responsible for that loss; the doctrine of subrogation does not bar such a claim and the principle of unjust enrichment does not apply.
Assessment of damages — Insurance benefits not deductible from damages payable by wrongdoer
Insurance moneys received by a plaintiff under his own policy are not to be taken into account in assessing damages against the wrongdoer, as the benefit flows from the contract of insurance independent of the relation between plaintiff and defendant.
Amendment of pleadings — Amended plaint speaks from commencement of action
Once a plaint is amended, the amended plaint speaks from the commencement of the action and what existed before amendment no longer defines the issues to be tried; leave to amend is a judicial discretion to be exercised so as to determine the real question in controversy where no injustice results that cannot be compensated by costs.
Costs — Personal liability of advocate — Right to be heard before condemnation
An advocate cannot be condemned to pay costs personally without first being accorded a hearing and an opportunity to show cause; ordering an advocate to pay costs without such hearing is an error of law.

Legislation cited (3)

Cases cited (16)

  • Pandya vs. R [1957] EA 336
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Eastern Radio Service vs, Patel EA (1962)818
  • Gaso Transport Services (Bus) Ltd v Obene (supra)
  • Suffish International and another V Egypt Air Corporation [1997-2001] (SC) UCLR 55
  • Castellain v Preston (1883) 11 QBD 380
  • Driscoll V Driscoll (1918) 1R 152
  • Yorkshire Insurance Co Ltd v Nisbett [1962] 2 QB 330
  • Parry v Cleaver [1969] 1 All ER 555
  • Bradburn v Great Western Railway Co (1874) LR 10 Ex 1
  • Admiralty commissioners versus Steamship Amerika (Owners), The Amerika (1916-17) ALL ER Rep177
  • Sherman v Folland [1950] 1 All ER 978
  • Kamurasi vs. Accord Properties Ltd [2000] EA 90
  • J. B. Kohli and ors V Bachulai Popatail [1964] 219
  • Abraham v Justin [1963] 2 All ER 402
  • Mbogo V Shah [1967] EA 116

Full judgment

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

Doshi Harsware (U) Ltd Vs Security Group (U) Ltd (Civil Appeal No. 0064 of 2011) [2019] UGCA 185 (10 July 2019)
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.