Wakilii

Sietco v Noble Builders (U) Ltd (Civil Appeal No. 31 of 1995)

Supreme Court · [1997] UGSC 28 · 1997 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from a High Court judgment in a building contract suit, with a cross-appeal by the respondent on the date from which interest runs.
Decision
Appeal dismissed; the High Court judgment for the respondent upheld, with interest varied to run from the date of filing suit on the respondent's cross-appeal.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Supreme Court dismissed Sietco's appeal. The amendment of the plaint corrected a misnomer of an identifiable party rather than substituting a new one and caused no injustice, and the appellant, having defended on the merits without objecting below, could not raise it on appeal. The trial judge had exercised his discretion judicially in refusing adjournments and in excluding evidence outside the pleadings. Noble Builders had substantially performed the lump-sum building contract and, the appellant having had the benefit of the work, was entitled to the contract price despite minor defects. The court allowed the respondent's cross-appeal, holding that interest on a liquidated sum runs from the date of filing the suit, not the date of judgment.

Outcome

Appeal dismissed; the High Court judgment for the respondent upheld, with interest varied to run from the date of filing suit on the respondent's cross-appeal.

Facts

Sietco, a Chinese construction company, contracted with the United Nations Development Programme to build an office block and a residential estate in Kampala, and subcontracted the work to Noble Builders (U) Ltd. Noble Builders sued for the balance of the agreed contract price, while Sietco counter-claimed for work not done or badly done in breach of contract. The trial court found that Noble Builders had substantially performed the contract by the time it was asked to leave the site on 1 March 1989, that any defects or omissions were of the kind the contractor was obliged to correct, and that Sietco had taken over supervision of the works and assumed responsibility for their quality. It entered judgment for Noble Builders for USD 1,254,567.97 with interest and dismissed Sietco's counter-claim. Sietco appealed on numerous grounds challenging the amendment of the plaint, the refusal of adjournments, the framing of issues, the exclusion of evidence concerning materials it claimed to have purchased, the refusal of leave to amend its defence, and the finding of substantial performance. The respondent cross-appealed on the date from which interest should run.

Issues

  1. Whether the suit was a nullity because the plaint was amended beyond the leave granted by the court and in the name of a non-existent party.
  2. Whether the trial judge exercised his discretion judicially in refusing the appellant's applications for adjournment.
  3. Whether the trial judge erred in failing to rule on the application to frame additional issues.
  4. Whether the word "tricks" in the counter-claim pleaded fraud requiring particulars under Order 6 rule 2.
  5. Whether evidence of the appellant's purchase of materials was properly expunged as being beyond the pleadings.
  6. Whether the trial judge erred in refusing the appellant leave to amend its written statement of defence and counter-claim.
  7. Whether the respondent substantially performed the building contract so as to be entitled to the contract price.
  8. Whether the appellant was entitled to penalty money for delay in completion.
  9. Whether, on the respondent's cross-appeal, interest should run from the date of filing the suit or from the date of judgment.

Orders

  • Appeal dismissed with costs to the respondent.
  • Cross-appeal allowed.
  • Order of the trial judge to pay interest at 12% per annum from the date of judgment until payment in full set aside.
  • Substituted with an order to pay interest at 12% per annum from the date of filing suit until payment in full.
  • Costs of the cross-appeal to the respondent.

Rules and key headnotes

Contract Law — Building Contracts — Substantial Performance of a Lump-Sum Contract
Where a lump-sum building contract has been substantially completed and the other party has had the benefit of the work, the contractor is entitled to the contract price notwithstanding that the work is in some respects defective or incomplete, unless the work is of no use or is something entirely different from what was contracted for.
Civil Procedure — Pleadings — Amendment — Misnomer Distinguished from Substitution of a Party
An amendment correcting the misdescription of an identifiable existing party is a permissible correction of a misnomer and does not amount to the substitution of a new party; where the true identity of the party is apparent from documents annexed to the pleadings, the misnomer causes no injustice.
Civil Procedure — Pleadings — Irregular Amendment — Objection Raised First on Appeal
A party who files an amended defence and contests the suit on the pleadings as they stand, without objecting to an irregular amendment in the trial court, cannot raise that irregularity for the first time on appeal where no failure of justice has resulted.
Civil Procedure — Adjournments — Exercise of Judicial Discretion
The grant or refusal of an adjournment is a matter of judicial discretion under Order 15 rule 1(1) and depends on sufficient cause being shown; an appellate court will not interfere unless the trial judge acted on a wrong principle or failed to consider relevant matters, and the mere absence of counsel, without disclosed sufficient cause, does not of itself compel an adjournment.
Civil Procedure — Evidence — Departure from Pleadings
Pleadings govern the scope of a case, and a party may not adduce evidence of a claim or set-off that has not been pleaded; evidence supporting a claim (such as the cost of purchasing materials) that is not set out in the written statement of defence and counter-claim is properly expunged as beyond the pleadings.
Civil Procedure — Pleadings — Particulars of Fraud
Where the parties treat an allegation as one of fraud, particulars must be pleaded under Order 6 rule 2; but a party who has itself admitted that the pleadings allege fraud cannot afterwards complain of a want of particulars of fraud.
Damages & Quantum — Interest — Liquidated Sum — Date from Which Interest Runs
Where a person is entitled to a liquidated amount and has been kept out of his money by the wrongful act of another, interest under section 26(2) of the Civil Procedure Act is awarded from the date of filing the suit; only where the damages must be assessed by the court does interest run from the date of judgment.

Legislation cited (9)

Cases cited (18)

  • Adonia Nakudi vs ... Civil Appeal No. 2 of 1986 (Unreported)
  • Makula International Ltd v His Eminence Cardinal Nsubuga and Another (Civil Appeal of 1981)
  • Reliable African ... 1979 HCB 58
  • Fort Hall Bakery Supply Co v Frederick Muigai Wangoe [1959] EA
  • Davies v Elsby Brothers Ltd [1961] 1 WLR 170
  • Mbogo v Shah [1963] EA 94
  • ... Muhinga ... (1953) 20 EACA 56
  • Riches v Westminster Bank Ltd [1943] 2 All ER 725
  • Habib Jaffer Manji and Another v. ...
  • Bagh ... Naan (1876) 7 CHD 287
  • Hari Karsan vs. ... 1943 EACA 10
  • Walji Jather Kanji and Another v Elias Freed [1959] EA
  • H Dakin & Co Ltd v Lee [1916] 1 KB 566
  • Hoenig v Isaacs [1952] 2 All ER 176
  • Harbutt's Plasticine Ltd v Wayne Tank and Pump Co Ltd [1970] 1 QB 447
  • Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd (No 2) [1970] EA 469
  • Mosi v Mbiyu [1965] EA 592
  • ... Motors Ltd. Civil Appeal 4 of 91 (unreported)

Full judgment

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

Sietco v Noble Builders (U) Ltd (Civil Appeal No. 31 of 1995) [1997] UGSC 28 (3 April 1997)
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.