Wakilii

Oriental Dairy v De Souza (Civil Appeal No. 22 of 1946)

East African Court of Appeal · [1948] EACA 53 · 1948 Matter Remitted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from decree of Resident Magistrate for arrears of rent
Decision
Decree set aside and matter remitted to lower Court for trial on the issue of quantum due

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that where an issue is clearly raised on the pleadings, the duty to frame and decide that issue rests with the Court under Civil Procedure Rules Order 13 rule 1(5). The failure of a defendant's advocate to request framing of an issue does not justify inferring the defendant intended to admit matters the plaintiff must prove. The decree was set aside and the case remitted for trial on the unresolved issue of what amount, if any, was due for rent and other charges.

Outcome

Decree set aside and matter remitted to lower Court for trial on the issue of quantum due

Facts

The respondent sued the appellants for possession of premises and arrears of rent totaling Sh. 137/46. The respondent's statement showed standard rent at Sh. 70/10 per month plus separate water and other charges. The appellants' written defence traversed the claim, alleging standard rent was Sh. 67/50 inclusive of all charges, had been regularly paid, and nothing was owing. At trial, three issues were framed by consent of the parties' advocates, none of which addressed whether the claimed amount was due. The appellants led no evidence. At the close of the respondent's case, the appellants' advocate submitted no evidence had been offered to establish the amount was owing. The magistrate declined to go outside the framed issues, found for the respondent on the two issues concerning standard rent and notice of increase, and entered judgment for the full amount claimed on the basis that quantum was never in issue.

Issues

  1. Whether the Court was entitled to enter judgment on a matter raised in the pleadings but not included in the issues framed by consent at trial.
  2. Whether the failure to frame an issue as to quantum due constitutes an admission by the defendant of liability for the amount claimed.

Orders

  • Decree set aside.
  • Case remitted to the lower Court for trial and determination of the issue as to what amount, if any, is due and owing to the respondent.
  • Costs of appeal to the appellants.
  • Costs of proceedings in the lower Court to abide the event.

Rules and key headnotes

Civil Procedure — Pleadings and Issues — Court's Duty to Frame Issues Raised on Pleadings
The duty of raising issues rests under the Civil Procedure Rules with the Court, and where an issue is clearly raised on the pleadings, the Court must frame and adjudicate upon that issue regardless of whether it was included in issues framed by consent of the parties' advocates.
Civil Procedure — Issues — Effect of Failure to Frame Issue — No Inference of Admission
The failure to frame and record an issue as to matters which the plaintiff is bound to prove, and the failure of a defendant's advocate to request the framing of such issue, does not justify the inference that the defendant intended to admit those matters.
Civil Procedure — Pleadings — Written Defence — What Constitutes Issue on the Pleadings
Where a defendant traverses generally the allegations in the plaint and goes on to allege a different factual position as to quantum and payment, an issue arises on the pleadings as to whether the amount claimed is due and owing.

Legislation cited (3)

  • Civil Procedure Rules 1927 Order 13 rule 1(5)
  • Civil Procedure Rules 1927 Order 6 rule 7
  • Increase of Rent and Mortgage Interest (Restrictions) Ordinance 1940

Cases cited (1)

  • Ganoo v Shri Dev Sidheshwar (26 I.L.R. (1902) Bombay 360)

Full judgment

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

Oriental Dairy v De Souza (Civil Appeal No. 22 of 1946) [1948] EACA 53 (1 January 1948)
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.