TaJdin Hussein & 2 oers v Hwan Sung Industries Ltd (Civil Appeal No. 71 of 2003)

Observed later treatment

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

The Court of Appeal allowed the appeal, holding that the trial judge erred by basing his entire decision on an unframed and unargued issue (fitness for purpose), contrary to the principle that parties must be invited to address any amended or additional issue. In a sale by sample, the controlling condition was correspondence with the sample, yet the judge failed to evaluate whether the supplied goods were ever compared with the sample, or whether the goods tested by the Uganda National Bureau of Standards were in fact those supplied by the appellants. The chain linking the tested goods to the appellants was not established. The rejection of the goods and dismissal of the counter-claim were therefore unjustified.

Outcome

Appeal allowed; High Court judgment set aside; respondent ordered to pay US$8,000 on the counter-claim with 6% interest and costs to the appellants

Facts

The respondent, a local ice cream manufacturer, placed an order with the appellants in December 2000 for 2,000 kg of Orange Oil flavour at US$8.00 per kg, an ingredient for its 'Cool Cool Bar' brand. The parties signed a written agreement on 15 December 2000 providing for a sale by sample: the supplier was to supply goods matching a sample delivered before the agreement, and the buyer could reject goods not of the same quality. The respondent paid US$8,000 as 50% part payment. The appellants delivered the goods in February 2001. The respondent, dissatisfied, subjected the goods to internal testing and Uganda National Bureau of Standards examination, then rejected them and demanded a refund. The appellants denied liability, asserting the goods complied with the sample, and counter-claimed for the balance of US$8,000. Evidence showed the delivered goods were never compared with the original sample, and witnesses who tested the goods could not confirm the tested goods were those the appellants supplied.

Issues

1. Whether the goods supplied corresponded with the sample.
2. Whether the trial judge was entitled to decide the case on an issue (fitness for purpose) that was neither framed nor argued by the parties.
3. Whether the trial judge properly evaluated the evidence, including whether the goods tested by the Uganda National Bureau of Standards were the goods supplied by the appellants.
4. Whether the respondent was entitled to reject the goods and recover its deposit.
5. Whether the appellants' counter-claim for the balance of the contract price should have been dismissed.

Orders

• Appeal allowed.
• Judgment and orders of the High Court set aside.
• Respondent to pay US$8,000 (of the counter-claim) with interest at 6% from the date of delivery until payment in full.
• Appellants awarded costs of the suit in the Court of Appeal and in the High Court.

Rules and key headnotes

Legislation cited (4)

• Civil Procedure Rules Order 18 r.4
• Civil Procedure Rules Order 13 r.5
• Evidence Act s.91
• Evidence Act s.92

Cases cited (1)

• Oriental Insurance Brokers Ltd v Transocean Ltd (Civil Appeal No. 55 of 1995)

Cases citing this judgment (1)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

• Hwan Sung Industries Ltd v Tajdin Hussein & Ors [2008] UGSC 17

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