East African Court of Appeal - 1963

Jurisdiction-Buganda courts—Suit filed in High Court-Action for damages for negligence of employee-Vicarious liability of employer-Application to transfer suit to Principal Court—Meaning of “customary law prevailing in Buganda on or after the commencement of this Ordinance” — Buganda Courts Ordinance, s. 10 (b) (Cap. 77) (U.). 

Criminal Law-Murder-Evidence-Confession—Retracted statement-Corrobor- ation—Assessors not directed of danger of relying on uncorroborated retracted statement—Necessity for judge to record in detail heads of address to assessors. 
 

Advocate-Negligence—Money lent on mortgage on advice of advocate—Alleged misrepresentation by advocate of value of security-Failure of advocate to obtain valuation—Default by mortgagor—Sale of security at loss to client— Defence that loss due to fall in price of property. 
 

Evidence-Affidavit—Interlocutory application—Affidavit in support—Facts stated F to be true to the best of the deponent's knowledge, information, and belief-Deponent's means of knowledge not stated—Facts clearly within personal knowledge of the deponent- Whether affidavit contravenes Civil Procedure Rules, O. 17, r. 3 (U.). 
Business names-Firm not registered—Particulars of business not furnished within prescribed period-Application for relief against disability imposed by Business Names Registration Ordinance (Cap. 213), s. 10 (U.).

Hire purchase-Transfer of ownership—Estoppel-Agreement to hire motor vehicle-Option to purchase when instalments paid—All instalments paid -Option to purchase not effectively exercised-No time limit specified in agreement for exercise of option-Registration book of vehicle handed over to hirer-Hirer treated as having purchased—Transfer of ownership not registered Vehicle later seized by owner-Action by hirer for trespass, conversion and detinue-Waiver of requirement to exercise option—Whether owner estopped from denying that ownership transferred. 
 

Criminal law-Trial-Nullity-Summons served in respect of one charge- Appearance by accused—Accused then charged and tried on other charges— Accused informed of other charges before trial—Plea taken—No request for adjournment-Whether trial a nullity. 
Criminal law-Practice-Record of trial—Trial before African District Court, Proceedings recorded in English and not in Lutoto—Irregularity

Carriage of Goods—Carriage by road—Contract—Exemption clause-Loss of 
goods-No evidence as to how loss occured-Exemption clause excluding liability of carrier unless fundamental breach in performance of contract proved—Burden of proof of proving fundamental breach—Whether burden C of proof on carrier or consignee of goods. Contract-Carriage of goods-Exemption clause-Loss of goods-No evidence as to how loss occurred-Exemption clause excluding liability of carrier unless fundamental breach of performance of contract proved—Burden of proof of providing fundamental breach—Whether burden of proof on carrier or consignee of goods. 
Evidence-Burden of Proof-Non-delivery of goods by carrier-Evidence Act 
1963 s. 112 (K.). 
 

Income tax-Income—Ex gratia payment—Appointment of agent terminated after many years of service—Ex gratia payment of £5,000—Personal gift by principals offered by letter-Payment made after termination of employment—Payment in appreciation of long and loyal service—Whether taxable as gains or profits from employment or services rendered

Sale of goods-Breach of warranty-F.O.R. contract—Goods consigned to a place other than as instructed by the buyer—Delivery not accepted by the buyer—Whether the buyer is entitled to reject the goods

Appeal Powers of court on second appeal—Ruling at trial of no case to answer— 
Ruling reversed on first appeal—Grounds of misdirection—Further appeal. Practice Appeal—Powers of court on second appeal—Ruling at trial of no case to answer—Ruling reversed on first appeal-Grounds of misdirection— Further appeal on grounds of misdirection. 
 

Hire purchase-Guarantee Guarantee given after execution of hire purchase agreement—Consideration for guarantee being the hiring at guarantor's request-Whether good consideration. 
Damages-Hire purchase-Hiring terminated by owner-Motor vehicle not 
Returned to owner—Assessment of damages. 
 

Insurance-Motor insurance—Discharge of insurers—Accident-Vehicle repaired on insurers' instructions—Discharge voucher signed by insured—Action for declaration that insured not bound by discharge voucher-Allegation that discharge voucher signed under misrepresentation of fact—Estoppel

Practice-Review-Election petition—Petition successful—Order for costs— application for review of order for costs-Ground for review that judge took erroneous view of evidence and law-Whether application competent— Jurisdiction—Civil Procedure Ordinance (Cap. 6), s. 83 (U.)—Civil Procedure Rules Order, 42 (U.). 
 

Administration of estates-Deficiency—Estate of merchant insolvent—Stock-in-trade of estate pledged to creditor by executor-Consideration given by creditor-Validity of pledge—Succession Decree (Cap. 21), s. 274 (Z.). 

Distress-Illegal distress—Distress levied by court bailiff—Instructions to levy distress for landlord of residential flat—Distress levied at office premises— Error due to instructions received from advocates-Whether advocates liable to indemnify court bailiff. 
Damages: Illegal distress—Inventory of goods taken by court bailiff—Goods not removed from premises-Measure of damages. 

Guarantee-Construction—“We undertake to guarantee" -Whether this is a guarantee or an undertaking to give a guarantee when asked. 
 

Costs—Taxation—Instructions fee-Claim and counterclaim—Judgment for plaintiff on claim and counterclaim with costs-Claim and counterclaim arising out of one transaction-Instructions fee upon counterclaim-Principle of taxation to be applied

Income tax-Sale of land-Profits-Purchase of coffee estate-Losses from cultivation of coffee—Subsequent user of land for other farming projects— Decision by owner to sell land—Land subdivided into plots-Roads and water installed-Plots sold at profit-Whether realization of investment or trading in land. 
Income tax-Practice-Judicial decision as authority-Words in East African legislation different from British statute— Authority in East Africa of decisions in England upon similar legislation. 
Judgment-Judicial decision as authority—Income tax-Words in East African legislation different from British statute—Authority in East Africa of decisions in England upon similar legislation. 

Hire purchase-Motor vehicle—Purchase of vehicle on credit—Purchaser unable to pay balance to dealer—Application made to finance company—Finance company willing to lend to third party—Third party enters into hiring agree- ment-Purported invoicing of vehicle by dealer to finance company- Instalments payable by third party guaranteed by dealer-Default by third party-Action by finance company against dealer on guarantee-Whether transaction genuine hire-purchase.

Slander-Privilege-Words spoken by advocate before licensing authority- Statement made on instructions—Whether occasion privileged. Slander-Qualified privilege-Malice-Words spoken by advocate before licensing authority-Words spoken on client's instructions—Instructions believed true— Whether express malice proved. Slander-Pleading-Plaint stating that words spoken and published "falsely and maliciously”—Defence of absolute or qualified privilege—No reply alleging express malice-Whether reply alleging malice necessary—-Indian Code of Civil Procedure, 1908, O.19, r. 6. 
 

Criminal law-Charge-Duplicity—Driving motor vehicle in reckless manner and at a speed that was dangerous to the public—Distinction between con-junctive and disjunctive particulars of the offence. Street traffic-Charge—Duplicity—Driving motor vehicle in reckless manner and at a speed that was dangerous to the public-Distinction between con-junctive and disjunctive particulars of the offense. 
 

Criminal law-Practice-Further counts added to original charge—Additional counts during trial—Accused not informed of rights—Right to recall witnesses and adjournment-Irregularity-Prejudice to accused-Miscarriage of justice. 

Criminal law-Practice-Charge—Misjoinder—Two accused—Same complainant -Alleged offences occurring at different places, on different dates, and with different weapons. 
 

Criminal law-African courts—Audi alteram partem—Witness—Witness held to be lying-Sentence of imprisonment-Witness not heard in his defence— Whether conviction and sentence illegal-African Courts Ordinance, 1957 (U.), s. 17 (2). 
 

Mohamedan law-Gift inter vivos-Validity-Gift of house effected by purported deed of sale- Consideration stated in deed not paid-Deed registered— Donor and donee residing in the house at time of gift-Whether donor must leave house after gift-Intention of donor.

Landlord and Tenant—Distress—Agreement to pay higher fees than those allowed bythe  Distress for Rent Rules-Subsequent claim for the excess by the landlord 
-Whether agreement illegal-Whether parties in pari delicto. Bailiff-Distress-Remuneration-Whether officer of court entitled to retain 
commission in excess of that provided by Distress for Rent Rules

Criminal law-Charge-Irregularity-Charge of contravening statute-Offence alleged a contravention of an order made under statute—Order contravened not specified in charge—Whether charge bad. 
Criminal law-Plea- Equivocal plea- Charge of contravening statute-Offence alleged a contravention of an order made under statute—Admission by accused not an unequivocal plea of guilty to offence charged. 
 

Criminal law-Maize marketing and control-Burden of proof-Charge of illegal possession of maize—Conviction of harvesting and dealing with maize contrary to law-Finding that the accused must prove lawful possession and dealing—Misdirection—Maize Marketing Ordinance (Cap. 338), s. 42 (K.). 
 

Criminal law-Unlawful possession of livestock-Plea-Unlawful possession in a proclaimed area of stock suspected of having been stolen—Equivocal admission by the accused. 
 

Criminal law-Receiving or retaining stolen property—No evidence that goods were stolen―No evidence that the accused knew goods were stolen- Circumstantial evidence -Concealment of goods-Whether the circumstances of possession were sufficient proof that the goods were stolen or received with that knowledge. 

Execution Attachment of goods-Distress for rent levied on goods subject to attachment-Goods sold by court bailiff-Goods sold under warrant of sale issued by court-Proceeds of sale deposited in court-Priority—Whether landlord has priority for arrears of rent over judgment-creditor's claim- Distress for Rents (Bailiffs) Ordinance (Cap. 116) (U.)—Judicature Ordinance, 1962, s. 2 (b) (i) (U.)—Statute of 8 Anne, c. 14, s. I (U.K.). 
Practice-Execution—Attachment of goods—Distress for rent levied on goods 
subject to attachment-Goods sold under warrant of sale issued by court- Proceeds of sale deposited in court-Application by landlord claiming priority for arrears of rent-Whether application competent-Civil Procedure Ordinance (Cap. 6), s. 101 (U.). 
Distress—Arrears of rent-Distress levied on goods subject to attachment— Goods attached previously under court order—Goods attached for judgment debt-Goods removed and advertised for sale by bailiff levying distress— Procedure to be followed by landlord and bailiff levying distress when goods already attached-Court Brokers Rules, 1956, r. 3 (U.)—Courts (Rules) Ordinance, 1956 (U.)—Distress for Rents (Bailiffs) Ordinance (Cap. 116) (U.). 
 

Pleading-Limitation of action-Exemption from limitation-Exemption claimed on ground of mutual open and current account-Ground of exemption not pleaded. 
Limitation of action-Action founded on account stated-Account stated orally -Period of limitation applicable-Indian Limitation Act, 1908, First Schedule, arts. 64 and 115. 
 

Criminal law-Evidence—Strict proof required of admissions—Indian Evidence Act, 1872, s. 58. 
Criminal law—Trial—Assessors—Opinion of assessors not taken specifically C whether accused guilty or not guilty as charged-Desirability of obtaining such opinion-Criminal Procedure Code (Cap. 20), s. 283 (1) (T.). 
Criminal law-Murder-Plea of self-defence-Deceased killed while attempting to apprehend accused-Accused in state of fear and anticipating severe beating if caught-Whether plea of self-defence available-Penal Code, s. 18 (T.)—Criminal Procedure Code (Cap. 20), s. 32 (1) (T.). 
 

Criminal law-Practice-African court-Record containing no details of charge and particulars—Importance of recording charge and its particulars—African Courts Ordinance, 1957, s. 12 (U.). 
Criminal law-Jurisdiction—Nullity—African court-Case tried without juris- diction-Trial a nullity—African Courts Ordinance, 1957, s. 8 and s. 10 (U.)—Penal Code (Cap. 22), s. 228 (U.).

Landlord and tenant—African owner of land—Agreement to sublet by non- African to non-African—Governor's consent necessary—No provision in agreement that subletting subject to Governor's consent-Governor's consent obtained after agreement effective-Whether consent retroactive—Whether agreement void and unenforceable—Land Transfer Ordinance (Cap. 114), s. 2 (U.)—Buganda Land Law, 1908, s. 2. 
 

Landlord and tenant—Action for arrears of rent—Claim based on contract—No evidence given of any tenancy agreement—Claim not founded on use and occupation-Whether relief can be granted on the basis of use and occupation. Pleading-Landlord and tenant-Claim for rent-Claim based on contract— 
No evidence given of any tenancy agreement—Use and occupation not pleaded 
-Whether relief can be granted on the basis of use and occupation. 
 

Income tax -Direction by Commissioner-Direction that certain income be that of the taxpayer-Direction to be in the Commissioner's opinion just and reasonable -Whether direction should so state-East African Income Tax (Management) Acts, 1952 and 1958, s. 23. 
Income tax-Direction by Commissioner—Appeal—Onus of proof that direction 
invalid-East African Income Tax (Management) Act, 1958, s. 115 (1). 
Income tax-Direction by Commissioner-Appeal-Evidence-No evidence that Commissioner had considered whether direction just and reasonable—Whether court may presume direction given regularly—Indian Evidence Act, 1872, s. 114. 
Income tax-Direction by Commissioner-Appeal-Purpose of transaction 
avoidance or reduction of tax liability — Whether taxpayer has right of appeal on question of fact—East African Income Tax (Management) Act, 1958, s. 113 (h), s. 115 (1) (b). 
Income tax-Direction by Commissioner—-Direction that certain income be that of the taxpayer-Purpose of transaction avoidance or reduction of tax liability -Whether direction can be made only respecting artificial or fictitious transactions—East African Income Tax (Management) Act, 1958, s. 23. 
Income tax-Direction by Commissioner-Direction aimed at two distinct transactions—Whether direction stands or falls as a whole—Whether direction bad in law if one transaction not for avoidance of tax-East African Income Tax (Management) Act, 1958, s. 23. 
 

Street traffic-Driving under the influence of drink and driving dangerously— Appeal—Misdirection on fact alleged—Onus on appellant to show that findings unreasonable—Misdirection—Traffic Ordinance, 1951, s. 41, s. 43 (U.)-Road Traffic Act, 1930, s. 11 (1) and s. 49 (b) (U.K.). 
 

Pleading Plaint—Action for goods sold and delivered—No averment in body of plaint of date when goods sold and delivered—Account annexed to plaint— Account setting out dates of sales and payments on account—Plaint rejected as disclosing no cause of action—Whether annexure forms part of a plaint— Indian Civil Procedure Rules, O. VI, r. 17 and O. VII, r. 11 (a). to plead ex- 
Practice-Pleading-Plaint—Amendment-Limitation—Amendment 
emption from limitation—Indian Civil Procedure Rules, O. VI, r. 17. 
 

Divorce Adultery-Condonation—Christian first marriage of husband—Second marriage of husband under Islamic law-First wife residing with husband after second marriage-First wife thereafter living apart from husband— Whether adultery of husband after first wife's departure condoned by her— Matrimonial Causes Ordinance (Cap. 364), s. 10 (2) (T.). 
 

Criminal law- Plea – Theft of government property- · Admission that property H stolen -Plea of guilty to a scheduled offence entered— No proof that thing stolen was government property—Minimum Sentences Act, 1963 (T.). 
Criminal law-Sentence-Theft of government property no- Proof that thing stolen was government property—Admission that property stolen—Plea of guilty to a scheduled offence entered—Sentence imposed under Minimum Sentences Act, 1963—Validity of sentence-Penal Code (Cap. 16), s. 265, s. 296 and s. 297 (T.)—Minimum Sentences Act, 1963, s. 5 (1) and (2) (T.). 
 

Practice Application by judgment-debtor for adjustment of decree—Application refused-Whether appeal lies—Indian Civil Procedure Rules, O. XXI, r. 2 (2) — Indian Civil Procedure Code, 1908, s. 2, s. 96 and s. 104. 
Appeal Further evidence—Appeal from ruling made after evidence of parties heard Application to admit fresh evidence—Evidence to destroy respondent's credibility Ruling not reliant upon respondent's evidence—Whether court will admit such evidence—Indian Civil Procedure Rules, O. XLI, r. 27- Indian Civil Procedure Code, 1908, s. 151. 
 

Limitation—Application for review of judgment—Application made 95 days after delivery of judgment-Delay due to failure to appreciate implications of judgment-Whether “sufficient cause" shown for extension of time—Exercise 
of discretion to extend time—Indian Limitation Act, 1908, s. 5 and First C Schedule, art. 162 and art. 183. 
 

Criminal law-Possessing an instrument of housebreaking-Whether "pencil" 
torch, an instrument of housebreaking.  
 

Contract—Illegality—Lease—Mailo land-Lease by African to non-African— Non-African in possession for years--Statutory consents not obtained— Transaction illegal—Whether parties in pari delicto—Recovery of possession —Possession of Land Law (Cap. 25) (Native Laws of Buganda Revised Edition, 1957), s. 2—Land Transfer Ordinance (Cap. 114), s. 2, s. 3 and s. 4 (1) (U.). 
 

Practice-Appeal to Privy Council—Limitation—Application for leave to appeal— Application to be made within twenty-one days from judgment—Application not made within twenty-one days but made within sixty days—Application dismissed by a single judge as being out of time—Legislation amended re- storing former time limit of sixty days—Reference to full court-Whether amending legislation has retrospective operation—Kenya (Procedure in Appeals to Privy Council) Order-in-Council, 1962, s. 3 and s. 5—Eastern African (Appeal to Privy Council) Order-in-Council, 1951, s. 4-Court of Appeal for Eastern Africa (Appeal to Privy Council) Order-in-Council, 1962, s. 1—Kenya (Constitution) (Amendment) Order-in-Council, 1962— Kenya (Procedure in Appeals to Privy Council) (Amendment) Order-in-Council, 1963, s. 2—Eastern African Court of Appeal Rules, 1954, r. 9, r. 19 (6) and r. 88. 
Statute-Retrospective operation-Amendment of legislation limiting time for an appeal-Procedural provision—Whether amendment has retrospective operation—Kenya (Procedure in Appeals to Privy Council) Order-in-Council. 1962, s. 3—Kenya (Procedure in Appeals to Privy Council) (Amendment) Order-in-Council, 1963, s. 2.

Trade Mark-Use of own name by trader—Trade mark registered—Use of own name by trader's son—Name not registered—Similarity of trade marks— Bona fide use—Whether use of own name by son constitutes infringement— Meaning of "bona fide”—Trade Marks (United Kingdom) Registration Ordinance (Cap. 151), s. 6 (A.)—Trade Marks Act, 1938, s. 4 and s. 8— Trade Marks Act, 1905, s. 44—Jamaican Trade Marks Law, s. 44. 

Practice-Plaint-Summary procedure-Claim for mesne profits and vacant possession of premises-Whether plaint correctly endorsed for summary procedure-Civil Procedure Rules, O.XXXIII (U.). 
 

Constitutional law-Uganda-Independence-Buganda-Constitution of Uganda -Effect on taxing laws of Buganda-Uganda (Independence) Order-in-Council, 1962, s. 4 and s. 26 (U.)—Buganda Graduated Tax Law, 1954– The Constitution of Uganda, s. 74 and s. 95 and item 6 of Part I of Schedule 7 (U.)—Constitution of Buganda, art. 41 (U.)—Buganda Native Laws (Declaratory) Ordinance (Cap. 71) (U.)—Uganda Agreement, 1900 (U.) — Buganda Agreement (Native Laws), 1910 (U.)—Buganda (Declaratory) Agreement (Native Laws), 1937 (U.)—Buganda Agreement, 1955, Order- in-Council, 1955, First and Second Schedules (U.)—Uganda (Constitution) Order-in-Council, 1962, s. 4. 
 

Shipping-Carriage by sea—Breach of contract—Dead freight—Shipping space booked for cement-Cement to be loaded at Mombasa for port at Mada- gascar-Shipping space subsequently cancelled before ship leaves port of origin-Claim for dead freight—Whether claim maintainable when ship sails fully loaded from Mombasa. 
Shipping Carriage by sea–Lien—Shipping space booked for cement—Cement to be loaded at Mombasa for Madagascar—Shipping space cancelled before ship leaves port of origin—Claim for dead freight—Offer by same shipper of another cargo at Mombasa—Lien claimed on other cargo when loaded for dead freight arising from earlier booking-Whether lien enforceable. 
Shipping-Carriage by sea-Usage-Breach of contract-Shipping space booked for cement-Ship not calling at Mombasa—Ship diverted to Mombasa— Shipping space cancelled before ship leaves port of origin—Claim for dead freight-Claim of usage at Mombasa that space booked can be cancelled by reasonable notice.