Wakilii

Sembuya v Allports Services (U) Ltd (Civil Appeal No. 23 of 1997; Civil Appeal No. 6 of 1999)

Supreme Court · [2000] UGSC 42 · 2000 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Second civil appeal from the Court of Appeal affirming a High Court judgment given in its original jurisdiction
Decision
Appeal allowed only as to the trial court's award of general damages, which was set aside; appeal otherwise dismissed with costs; special damages of shs 147,500,000 and interest at 22% from 18 September 1993 upheld.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court upheld the concurrent findings that a particular partnership existed between the appellant and his co-defendant for the cement venture, making the appellant jointly liable; alternatively he was liable by holding out under s.18 of the Partnership Act. A court may decide an unpleaded issue canvassed at trial without prejudice. On a second appeal the Court was not barred from revisiting concurrent findings of fact. Special damages of shs 147,500,000 (the price of goods sold) were proved. However, where property in goods has passed, the seller's remedy is the price plus interest, not general damages, so the shs 15,000,000 general-damages award was set aside while interest at 22% ran from 18 September 1993. The appeal was otherwise dismissed with costs.

Outcome

Appeal allowed only as to the trial court's award of general damages, which was set aside; appeal otherwise dismissed with costs; special damages of shs 147,500,000 and interest at 22% from 18 September 1993 upheld.

Facts

The appellant and Julius Kamanyi did business together and won a tender to supply 20,000 bags of cement to the Northern Uganda Rehabilitation Programme. Lacking funds to purchase the cement, they sub-contracted; through an intermediary they were put in contact with the respondent, Allports Services (U) Ltd, which agreed to supply the cement at shs 12,500 per bag against a Local Purchase Order issued on the letterhead of Aero International Ltd dated 18 September 1993. Kamanyi issued a post-dated personal cheque for shs 200,000,000 in respect of cement supplied and to be supplied. The respondent delivered cement, but the cheque was dishonoured for lack of funds in Kamanyi's account. About shs 53,000,000 was later paid, leaving a balance of shs 147,500,000. The respondent sued both men; Kamanyi admitted liability, while the appellant denied being a partner or trading as Aero International. Evidence showed the appellant was general manager at the ATC offices where the deal was negotiated and where his secretary typed the invoice on Aero International letterhead, and that the two men acted together throughout the cement transaction.

Issues

  1. Whether there was a partnership between the appellant and his co-defendant under the name and style of Aero International Ltd.
  2. Whether the appellant was liable on the basis of holding out under s.18 of the Partnership Act, and whether the Court of Appeal could rely on an unpleaded doctrine.
  3. Whether, on a second appeal, the Supreme Court was barred from reconsidering the concurrent findings of fact of the two courts below.
  4. Whether the respondent had strictly proved its claim for special damages of shs 147,500,000.
  5. Whether the trial court was entitled to award general damages for breach of a contract for the sale of goods.

Orders

  • The award of shs 15,000,000 as general damages is set aside.
  • Interest at 22% per annum on shs 147,500,000 to run from 18 September 1993 until payment is upheld.
  • The appeal is otherwise dismissed with costs here and below.

Rules and key headnotes

Partnership — Holding Out — Liability under s.18 Partnership Act
A person who by words spoken or written or by conduct represents himself, or knowingly suffers himself to be represented, as a partner in a particular firm is liable as a partner to anyone who, on the faith of that representation, gives credit to the firm.
Partnership — Particular Partnership — Unregistered Entity
A particular partnership may be established for a specific venture even where the named entity is an unincorporated and unregistered company that does not exist in law, and concurrent findings of two courts below that such a partnership existed will not lightly be disturbed.
Pleadings — Unpleaded Cause of Action — Relief Not Founded on Pleadings
Relief not founded on the pleadings will not ordinarily be granted, but a court may decide an unpleaded issue where it was canvassed at trial, the other party was prepared to meet it, and no prejudice was thereby occasioned.
Second Appeal — Reconsideration of Concurrent Findings of Fact
On a second appeal from a decision of the High Court given in its original jurisdiction, the Supreme Court is not barred from reconsidering concurrent findings of fact; s.74(1) of the Civil Procedure Act does not apply, the governing provisions being s.7(1) of the Judicature Statute 1996 and rule 29(1) of the Rules of the Court.
Sale of Goods — Remedy of Price Plus Interest — General Damages Inapplicable
Where property in goods has passed to the buyer, the seller's remedy under s.49(1) of the Sale of Goods Act is to recover the price together with interest as compensation for being kept out of the money; an award of general damages in addition is wrong in principle.
Striking Out — Defence of a Co-Defendant
It is irregular for a trial court to strike out a defendant's defence on the application of a fellow defendant, since a written statement of defence answers the plaint and not the defence of a co-defendant.

Legislation cited (10)

  • Partnership Act s.18
  • Partnership Act s.40(1)
  • Sale of Goods Act s.49(1)
  • Civil Procedure Act s.74(1)
  • Judicature Statute 1996 s.7(1)
  • Criminal Procedure Act s.337(1)
  • Civil Procedure Rules O.6 r.29
  • Rules of the Supreme Court rule 29(1)
  • Rules of the Supreme Court rule 81(1)
  • Rules of the Court of Appeal rule 90

Cases cited (15)

  • Bank of Uganda Supreme Court Civil Appeal No. 8 of 1998 (unreported)
  • Budgell Sons & Co vs Watson (1978) 1 QB 451
  • Interfreight Forwarders Ltd v East African Development Bank (Civil Appeal No. 33 of 1992)
  • Usman vs Kabali (1975) EA 185
  • Odongo and Another v Francis Bonega (Civil Appeal No. 10 of 1997)
  • Keith Spicer vs Mansell (1970) 1 W.L.R 333
  • Bank of Uganda v Transroad Ltd (Civil Appeal No. 3 of 1997)
  • Dhanji Ramji vs Rambhai (1970) E.A 515
  • Gandy vs Caspair Air Charters Ltd (1956) 23 E.A.C.A 139
  • A.S. Bitaitana vs D. Mugema, Supreme Court Civil Appeal No. 115 of 1991 (unreported)
  • Phillips vs Ward (1956) 1 All ER 874
  • Flint vs Lovell (1935) 1 KB 354
  • Traill vs Bowker (1947) 14 EACA 20
  • Obongo vs Municipal Council of Kisumu (1971) EA 91
  • Miliangos vs George Frank (Textiles) (1975) QB 487; Miliangos (No.2) (1977) QB 489

Full judgment

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Sembuya v Allports Services (U) Ltd (Civil Appeal No. 23 of 1997; Civil Appeal No. 6 of 1999) [2000] UGSC 42 (15 February 2000)
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.