[1950] EACA 175

### 175

### H. M. COURT OF APPEAL FOR EASTERN AFRICA

Before SIR NEWNHAM WORLEY (President), SINCLAIR (Vice-President), and BRIGGS, Justice of Appeal

## THE IRON & STEELWARES LIMITED, Appellants (Original Plaintiffs)

$\nu$ .

# C. W. MARTYR & COMPANY, Respondents (Original Defendants) Civil Appeal No. 48 of 1955

(Appeal from the decision of H. M. High Court of Uganda, Bennett, J.)

Procedure—Application of Order XVI, rule 2 of the Uganda Civil Procedure Rules—Indian Civil Procedure Rules, Order XVIII, rule 2.

The plaintiffs' advocate in the High Court had opened the pleadings and then called his evidence. The defendants' advocate then stated that he would call no evidence. The plaintiffs' advocate then started to address the Court on the law and the facts and the defendants' advocate objected, quoting rule 2 of Order XVI of the Civil Procedure Rules. The objection was upheld and the plaintiffs' advocate was told that he had no further right of address. The advocate for the defendants then addressed the Court at some length on both facts and law.

$Held$ (22-5-56).—(1) The High Court has a discretion to waive the strict application of Order XVI, rule 2, and has a duty to ensure that each party is given a fair opportunity to state its case and to answer the case made against it. Further, where new cases are quoted in reply, the other party will be allowed to address the Court on such new cases and on points not argued before the Court previously.

(2) Although the ruling of the trial Judge was incorrect no injustice had in fact been occasioned.

Appeal dismissed.

Cases referred to: Harji Mal v. Devi Ditta Mal. (1923) 1. L. R. 4 Lah. 364; Kernot v. Walton, I. L. R. 4 Cal. 14.

### C. B. Patel and Mehta for appellants.

#### Troughton for respondents

JUDGMENT (prepared by Worley, President).-The appellants herein (plaintiffs in the High Court) sued the respondents-defendants for the sum of Sh. 17,801/85, interest and costs, the said sum being made up of Sh. 10,875 paid by the appellants to the respondents as the price of 50 bicycles, a consideration which was alleged to have wholly failed, Sh. 3,039/26 cost of transport of 50 bicycles from Mombasa to Kampala. Sh. 2,782/85 loss of profit on resale and Sh. 1,104/74 loss of interest. The learned trial Judge awarded the appellants the sum of Sh. 1,000 only as fair compensation for the loss he found they had sustained, with interest and costs, and it is from this award that the appeal is brought. The advocates for the appellants have, however, conceded that the assessment of damages is fair and reasonable if the facts found by the High Court are supported on this appeal.

The dispute arose in this way. By a written order dated 2nd November, 1951, the appellants ordered from the respondents through the latter's agents in Kampala, East African Agencies Ltd., 50 Royal Star bicycles at £10/17/6 c.i.f. Mombasa.

The respondents were in fact acting as agents for the makers of this brand of bicycle, but it is agreed that they were liable as principals to the appellants. The respondents confirmed the order on 21st November, 1951.

The bicycles arrived in Kampala about the third week in May, 1952, and when examined by the appellants the consignment was found to be defective in that $(a)$ numerous parts were missing due to pilferage and $(b)$ the front forks although of the Raleigh type specified in the order were too short to fit the frames. The appellants also took exception to the wheel-spokes being painted with black enamel, their contention being that it was an implied term of the contract that chromium-plated spokes should have been fitted. On 21st July, 1952, the appellants wrote to the respondents categorically rejecting the consignment: they had previously rejected suggestions made by the respondents for the settlement of the dispute and subsequently rejected their further offers.

We do not think it necessary to review the pleadings and contentions of the parties at length. The appeal is brought against the findings of the learned trial Judge:

- (a) That it was not a term of the order that the bicycles should have chromium-plated spokes and that it was not proved that there was in existence any trade custom to the effect that only bicycles with such spokes should be supplied for the Uganda market. - (b) That although tthis was a sale by description, it was not proved that the bicycles supplied did not correspond with the description; but there was an implied condition that the bicycles supplied should be of merchantable quality and the supplying of defective forks was a breach of this condition which would have entitled the buyers to reject the goods. - (c) That the buyers lost their right to reject by their conduct, firstly by dealing with the bicycles in a manner inconsistent with the respondents' ownership, namely by claiming and accepting for their own account the insurance money in respect of the missing parts, and, secondly, by not rejecting the goods within a reasonable time. - (d) That the appellants were therefore only entitled to treat the breach of the condition as a breach of warranty, which could be compensated by damages, and that they failed to take the reasonable step of mitigating their loss by accepting the respondents' offer to supply other forks to fit the frames free of charge.

After hearing Mr. Mehta's submissions, we were of opinion that no sufficient reason had been shown for reversing any of these findings and dismissed the appeal with costs. Mr. Mehta pressed most strongly the contention that the appellants were entitled to reject the goods because the spokes were not chromiumplated. He conceded that the order did not specify chromium-plated spokes, but<br>relied on the alleged evidence of "custom". There was, it is true, evidence that bicycles with plated spokes were popular and, presumably, sold more readily on the Uganda market, but we think the learned Judge quite correctly held that the evidence did not establish the alleged "custom" that none but bicycles with such spokes were saleable locally.

We should not have considered it necessary to write a judgment in this matter, but for one procedural point which has caused us some anxiety. In the High Court Mr. C. B. Patel, who then appeared for the appellants, opened the pleadings and then called his evidence. Mr. Keeble, who appeared for the respondents, then announced that he would call no evidence. Mr. Patel then started to address the Court on the law and the facts. Mr. Keeble objected and referred to Order XVI, rule 2 of the Uganda Civil Procedure Rules, whereupon the learned Judge, as we are informed, told Mr. Patel he had no further right of address and must sit down. Mr. Keeble then, as appears from the record, addressed at some length on both facts and law. Uganda Order XVI, rule 2 reads:-

"2. (1) On the day fixed for the hearing of the suit, or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove.

(2) The other party shall then state his case and produce his evidence, if any, and may then address the Court generally on the whole case.

(3) The party beginning may then reply generally on the whole case:

Provided that in cases in which evidence is tendered by the party beginning only he shall have no right to reply".

It is presumably derived from Indian Order 18, rule 2, except that the latter does not contain the proviso to sub-rule (3).

With respect, we cannot regard the learned Judge's ruling as satisfactory. since it resulted in his giving judgment without having heard any argument in support of the plaintiff's case, and without his advocate having had any opportunity of commenting on the cases cited and submissions of law made by the defendant's advocate. It is true that Mr. Patel could have opened on the law and outlined the facts he hoped to establish by evidence, but we understand that this is not always insisted on in the High Court and that the course he took is generally not objected to. Certainly there is no reason to doubt that he was acting in good faith.

Procedural rules are intended to serve as the handmaidens of justice, not to defeat it, and we think that the High Court in its inherent jurisdiction to control its own procedure, has a discretion to waive the strict application of Order XVI, rule 2, and has a duty to ensure that each party is given a fair opportunity to state its case and to answer the case made against it. Indeed, in India it has been held that Order XVIII, rule 2, gives the parties an option to argue their case when the evidence has been closed and it is for them to decide whether they will exercise that privilege or not: Harji Mal v. Devi Ditta Mal, (1923) I. L. R. 4 Lah. 364, 366. It may be doubted whether it is necessary to go as far as this; though if a party desires to follow that course there seems no good reason why the Court should not permit it.

There is one other rule of practice to which we wish to draw attention, namely, that where new cases are quoted in reply, the other party will be allowed to address the Court on such new cases and on points not argued before the Court previously. That practice is observed under the Indian rule, as elsewhere: see Kernot v. Walton, 1. L. R. 4 Cal. 14, 22 cited in Chitaley, Code of Civil Procedure, 4th (1944) ed. Vol. II, p. 1886. In our view, the Proviso to Uganda Order XVI, rule 2 (3) should not be so construed as to deprive the party who has begun of the opportunity of commenting on new cases cited and new points made in the address of the other party.

In the instant case, if it had appeared to us that the learned Judge's ruling had in fact occasioned injustice, we should have had to consider whether to order a retrial. But having given Mr. Mehta a wider latitude in arguing the appeal than we should normally have done or was covered by the pleadings, we were satisfied that his arguments created no doubt as to the correctness of the judgment appealed from. We accordingly dismissed the appeal with costs.