Court name
Supreme Court of Uganda
Case number
Civil Appeal-2003/8
Judgment date
17 January 2006

Goustar Enterprises Ltd v John Kokas Oumo (Civil Appeal-2003/8) [2006] UGSC 13 (17 January 2006);

Cite this case
[2006] UGSC 13
Short summary:
Civil Procedure, Evidence Law, Evaluation of Evidence

THE REPUBLIC OF UGANDA


IN THE SUPREME COURT OF UGANDA

AT MENGO

(CORAM: ODOKI, CJ., ODER, TSEKOOKO, KAROKORA AND KANYEIHAMBA, JJ.SC.)

CIVIL APPEAL NO. 08 OF 2003

B E T W E E N

 

GOUSTAR ENTERPRISES LTD: :::::::::: :::::: APPELLANT


VS


JOHN KOKAS OUMO: :::::::::: :::: RESPONDENT

 

(An Appeal arising from the Judgment and Orders of the Court of Appeal {S. G. Engwau and A. Twinomujuni, C. Byamugisha, JJA,} dated 26th August, 2003 in Court of Appeal Civil Appeal No:27 of 2001).

 

 

JUDGMENT OF KAROKORA - JSC:


This is an appeal from the decision of the Court of Appeal which allowed the respondent’s appeal against the decision of the High Court in High Court Civil Suit No. 1093 of 1999.

The brief facts of the case are that on 20th February 1997, the appellant entered into a memorandum of understanding, Exh. D1 with the Uganda National Farmers Association hereinafter referred to as “the Association” to supply tractors and their implements to members of the Association. The respondent who was a member of the Association made an order through the Association to be supplied with 3 tractors with their implements.

The price for 3 tractors with their implements plus tax, according to Exh. D2, was Shs. 105,679,140=. Furthermore, according to Exh. D2, the respondent was required to deposit 50% as first instalment. Pursuant to that requirement, the respondent paid Shs. 53,584,500= to the appellant towards the purchase of the 3 tractors. In July 1997, the appellant supplied the tractors. The tractors were tested in the presence of a representative of the appellant. Two of the three tractors were found to be defective. These two tractors had been collected from the appellant by the respondent and had been parked in the verandah of the respondent’s home. One tractor had a hydraulic problem. The other was overheating.

Thereafter the respondent rejected the two tractors and the appellant, took them back. The appellant claims that it took them back to be repaired/or serviced while the respondent claimed that he had rejected them as he could not start repairing new tractors. When they failed to agree, the respondent filed the suit in the High Court claiming refund of shs28,389,685/= which was later amended and reduced to shs25,421,685/= being the adjusted amount sum from the original amount deposited towards the purchase of the three tractors.

The learned trail judge made the following orders:

(a) the defendant shall deliver one of the two bare tractors (without extra) to the plaintiff at the unit cost without any further payment.

 

(b) The defendant refunds to the plaintiff Shs. 7,244,685= and may do so by supplying to the defendant implements up to this value at the plaintiff’s option.
(c) One of the two tractors be retained by the defendant, its purchase having been avoided.

 

(d) Each party bears his own costs of this suit.

 

(e) The cash refund at “b” above bears interest at 12% from the date of filing the suit on 22-09-1999, to the date of full settlement thereof.


Both parties were dissatisfied by the above orders and so the current respondent appealed to the Court of Appeal while the current appellant cross-appealed. The learned justices of the Court of Appeal allowed the appeal and made the following orders:

(1) The appellant is entitled to a refund of shs 18,355,120/= with interest at the rate of 12% pa from 19th sept1999 till full payment

 

(2) The appellant will have costs of the appeal and in the lower court.

 

(3) The cross-appeal is dismissed with costs to the appellant

 

(4) The cross-appellant pays shs 5,000,000/= in general damages to the appellant.


The cross-appellant has appealed against the decision of the court of appeal to this court on the following six grounds :
 

(1) The learned justices of the Court of Appeal erred both in fact and in law in failure to evaluate the evidence on record that showed that the defects in the tractors occurred as they were under possession, control and prior use by the Respondent and his Agent.

 

(2) That the learned Justices of the Court of Appeal erred both in fact and in law in holding that the tractors were rejected when they were sent back to the appellant for repair.

 

(3) That the learned Justices of the Court of Appeal erred both in fact and in law in failing to cancel out the orders of Justice Okum-Wengi that the cross-Respondent retain one tractor and hand over the other to the appellant after finding that the Judge was wrong.

 

(4) That the learned Justices of the Court of Appeal erred both in fact and in law for basing on the fact of terrain in Kumi to hold that the tractors could not work in the terrain when the issue was defects and not specifications.

 

(5) That the learned Justices of the Court of Appeal erred in law in not considering and overlooking the question of warranty and came to a wrong conclusion to the effect that since the appellant had given a warranty of 12 months and the defects came up after two months the appellant was in breach of contract.

 

(6) That the learned Justices of the Court of Appeal erred both in fact and in law by failing to take the Mathematical Calculations by the cross-Appellant that what was awarded to the Respondent in Shs. 7,244,685= was erroneous, unjustifiable and worked injustice to the Appellant.


Each party filed written submission through their counsel. Counsel on both side rightly submitted that it is the duty of the first appellate court to re-evaluate the evidence recorded at the trial and come up with its own decision. See Banco Arabe Espanyol - vs - Bank of Uganda Civil Appeal No. 8 of 1998 (SC), Habre International Co. Ltd. - vs - Abraham Alayakha & Others, Civil Appeal No. 4/98 (S.C), Muluta Joseph - vs - Katama Sylvano Civil Appeal No. 11 of 1999 (S.C.) and Rule 29(1) of the Rules of the Court of Appeal for the above proposition.

On the 1st ground of appeal M/s. Tashobya & Co. Advocates, counsel for the appellant submitted that whether the two tractors were defective at the time of testing was not denied by the appellant at the trial, because the two tractors failed to work. One failed to engage the plough and the other overheated after a short time of work. The first and second tractors which had defects and could not work were the tractors driven from Mbale to Kumi and packed at the respondent’s place . The third tractor which was brought by the appellant’s representative, Guo Dong DW1 on the day they were tested worked well.

On the issue of whether the tractors had those defects when they were supplied or developed after they were delivered to the respondent, counsel contended that from the evidence of DW1 the defects developed as a result of missing spares i.e. parts which were removed when the tractors were in possession of the respondent who used the tractors before they were trained by DW1. Counsel submitted that according to the Memorandum of Understanding Exh. D1 entered into by appellant and the Association – clause 7, thereof had stated:

“That Guostar shall offer training to buyers (operators) on cost price but charge after sales services for the same.”

Counsel submitted that the use of the tractors before training the operators coupled with the tampering/removal of some spare parts was the cause of the defects in the tractors, when they were in the respondent’s possession.

Counsel submitted that in view of the acknowledgment by the Lady Justice Byamugisha, JA, that respondent’s workers had used the tractors before they were tested and in light of the unchallenged evidence of DW1 and his contention as to the cause of the defects, the plaintiff had failed to discharge the burden of proof.

In the alternative, learned counsel argued that because of the uncertainty of the time when the tractors developed defects, there is a doubt which should be resolved in favour of the appellant.

In conclusion, counsel submitted that section 35 of the Sales of Goods Act ought not to have been invoked against the appellant in the instant case since the respondent as a buyer acted contrary to the conditions of sale set out in the memorandum of understanding. In view of the above, counsel for appellant submitted that the Justices of Appeal were in error to hold that the appellant was responsible for the defects in the tractors. He therefore prayed that ground one should be upheld.

M/s. Omoding, Ojakol & Okallang Advocates for the respondent contended on this ground in their written submission that the lead judgment of Lady Justice Byamugisha, JA, reveals that the Court of Appeal re-evaluated the evidence while considering the appeal. It was their contention that in evaluating the evidence on record, the lead judgment of Lady Justice Byamugisha, JA, referred to the evidence of DW1 who had testified that:

when he went to test the tractors in the month of August, two tractors were defective. The tractors were supplied in July and kept at the home of the appellant waiting to be tested.”

She then noted in her judgment that: