Wakilii

Tuf Foam (U) Limited v FTF Partners Limited (Miscellaneous Application No. 91 of 2017)

High Court · [2017] UGCOMMC 68 · 2017 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for leave to file a defence in a summary suit for a liquidated sum arising from sale of goods
Decision
Application for leave to file defence dismissed; respondent may proceed with summary suit

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Court dismissed application for leave to file a defence to summary suit. Held that applicant failed to disclose bona fide triable issue. Respondent supplied goods exactly as specified in applicant's order including 100% polyester material. Applicant's allegations of oral variation unsupported by written evidence. Applicant acknowledged debt in email proposing payment plan without disputing liability.

Outcome

Application for leave to file defence dismissed; respondent may proceed with summary suit

Facts

The respondent supplied materials for mattress covers to the applicant between November 2015 and February 2016, totalling US$158,828.88. The materials supplied were 100% polyester as specified in the respondent's pro forma invoices and as ordered by the applicant. The applicant paid US$34,523.28 and sought extension of time to pay the balance citing depressed sales. In email dated 31 May 2016, the applicant proposed a payment plan ending 17 July 2016 without disputing the debt. The applicant later alleged the materials were unusable because Uganda National Bureau of Standards required mattress covers to contain not less than 50% cotton. The applicant claimed oral agreement existed that it could dispose of the materials before paying, but provided no written evidence of such agreement. The respondent filed summary suit on 19 January 2017. The applicant applied for leave to file defence, alleging frustration of purpose and variation of contract.

Issues

  1. Whether the applicant disclosed a bona fide triable issue of law or fact warranting leave to file a defence to the summary suit
  2. Whether the alleged oral agreement to vary the original contract constituted a plausible defence
  3. Whether the allegation that goods were unfit for purpose raised a triable issue where goods were supplied exactly as ordered

Orders

  • Application dismissed.
  • Costs awarded to the Respondent.

Rules and key headnotes

Civil Procedure — Summary Suits — Leave to Defend — Test for Bona Fide Triable Issue
For leave to defend a summary suit to be granted, the defendant must disclose by affidavit a bona fide triable issue of law or fact, not a sham, and the court must be satisfied that if the facts alleged by the defendant were established, there would be a plausible defence.
Contract Law — Sale of Goods — Fitness for Purpose — Specific Orders
Where a buyer orders goods by specific description and the seller supplies exactly what was ordered as described in pro forma invoices, the buyer cannot subsequently claim goods were unfit for purpose absent evidence of reliance on the seller's skill and judgment regarding the particular use intended.
Contract Law — Variation of Contract — Need for Written Evidence
Alleged oral variations of a commercial contract between corporate parties are not accepted as raising a triable issue where written correspondence between the parties consistently acknowledges the original obligation without reference to any variation.
Contract Law — Acknowledgment of Debt — Effect on Rights
An acknowledgment of debt in writing, including by email proposing a payment plan without disputing liability, constitutes an unqualified admission of indebtedness and does not disclose a triable defence to a claim for a liquidated sum.

Legislation cited (4)

Cases cited (7)

  • Maluku Interglobal Agency v Bank of Uganda [1985] HCB 65
  • Abdul Malik Mugisha v Equity Bank Ltd (Miscellaneous Application No. 228 of 2014)
  • Maria Odido v Barclays Bank (U) Limited (Miscellaneous Application No. 0645 of 2008)
  • Miter Investments Ltd v East African Portland Cement Company Ltd (Miscellaneous Application No. 0336 of 2012)
  • Teheran-Europe Corp v St Belton Ltd [1968] 2 QB 545
  • Jones v Bellegrove Properties Ltd [1949] 2 All ER 198
  • Dungate v Dungate [1965] 3 All ER 393

Full judgment

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

Tuf Foam (U) Limited v FTF Partners Limited (Miscellaneous Application No. 91 of 2017) [2017] UGCommC 68 (5 June 2017)
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.