[2000] UGSC 27

# IN THE SUPREME COURT OF UGANDA HOLDEN AT NIENGO

# (COtuilV: ODER, MLTLENGA AND KANYEIHAMBA JJS. C.) l< CIVIL APPEAL:,IO. #OF I995

### BETWEE,\

#### YONASANI B. KANYOMOZI APPELLANT

#### ..1 ,vD

}IOTOR }I,{RT( U )LIIlI ITE I) RESPONDE)T

(Appeal arising from judgment and Decree of the High Court (Mr. Justice J. B. A Katutsi) at Kampala In Civil Suit No.37 of 1993 dated llh January I99S).

### JLDGMENT OF MULENGA JSC.

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This is an appeal against a decision of the High Court dismissing a suit for breach of contract. The appeal was. instituted in this Court on 23'd May 1995, before the Court of Appeal was established by the Constitution in October 1995. The appeal, however, had a chequered history of being dismissed for want of prosecution and subsequently being reinstated. It is unnecessary to detail that history here. Suffice to say that because of that history the appeal was not heard until 106 April, 2000, almost five years after it was instltuted. The facts which gave rise to the suit, however, date back to the late 1980's. I should first give a briefaccount ofhow the suit came about.

In 1987, the appellant, Yonasani B. Kanyomozi, whom I shall refer to as "Kanyomozi," owned a Bedford tipper lorry, to which I shall herein retbr as " the vehicle". At the material time, the vehicle was not functional, apparently as a result of its being used and mishandled by the army during the war. [n or about April 1987, Kanyomozi, who was out of the country at the time, instructed his wife to take the vehicle to the garage for necessary repairs. The vehicle was inspected and an initial estimate of repair costs was made in June 1987. Subsequent estimates were made in July and August, 1987. Payment for the repairs, however, was staggered and most of it was made in 1990. In or about December of that year the vehicle was retumed to Kanyomozi in the belief that repairs were duly completed. However, upon being taken on road test immediately, the vehicle broke down. It was taken back to the garage.

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It was alleged in the pleadings, but not repeated in evidence, that subsequently another road test was carried out with similar results. Whether the allegation was true or false however does not appear to affect the issues in this appeal and I shall not refer to it any more. At some stage subsequent to the vehicle breaking down while on road test, Motor Mart (U) Limited, to which I will herein refer as "Motor Mart", undertook bear the cost of the engine overhaul to be carried out by Leytand Daf (U) Ltd. The overhaul, however, was never carried out, and Kanyomozi tinally decided to sue tbr breach of contract. He filed suit in January, 1993.

It is apparent that Kanyomozi and/or his legal advisers were unsure as to who was liable for the alleged breach of contract. Initially the suit was brought against Motor Mart as sole defendant. However, in an amended plaint dated 126 March 1993, A. R. Mackenzie, General Manager of Motor Mart, and Leyland Daf (u) Ltd., at whose garage the engine overhaul was to be carried out, were added as co-defbndants. In his judgment, the learned trialjudge held that the evidence betbre him showed that the contract for the repairs of the vehicle was between Kanyomozi and Motor Mart. There was no appeal or cross-appeal against that holding, and so this appeal proceeded, and my judgment is based, on that premise. On a flrnal analysis in his judgment, the trial judge concluded' in effect:

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- (a) that Motor Mart had breached the contract in failing to satisfactorily complete the repairs between 1987 and 1990; - (b) that Kanyomozi had waived the rights that had accrued to him under the contract up to 1990, and he was estopped from suing in respect of any breach prior to 2 I st September 1 992; and - (c) that with regard to what had transpired thereafter the suit was premature because time (for completion of engine overhaul) had not been made of the essence of the contract.

On that ground the suit was dismissed. Hence this appeal.

Before I consider the issues raised by the appeal, it is useful to note the case of each party as set out in the pleadings. In the amended plaint the material

facts constituting the cause of action are contained in paragraphs 6' 7' and 12. which read:

- "6. Sometime in ,lpril 1987, the plaintiff contracted the I't Defendant to repair the plaintiffs motor vehicle registration ,\O. UXL.225 (hereinafter referred to as "the vehicle") - 7. Subject to the above ugreement the plaintiff mude puyments(to) the I't Defendant (as hereinafter appeoring) upon which the !'d Defendant undertook on behalfof the I't Defendant to produce u road worthy vehiclefor the plaintiffs use.. - 8-11

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t2 The plaintilf ststes that the Defendants have failed, neglected and/or refused to repair the plaintiffs vehiclefor which they are in hreach of contruct dnd that the plaintiff is entitled to domages therefore."

Paragraphs 8, 9 and I I narrate allegations (in form ofevidence) of two incidents when the vehicle broke down while it was on test run after repairs, and of the eventual undertaking by Motor Mart to meet the cost of overhauling the engine. Paragraph l0 contains the plaintifl s contention that the said break down resulted from failure to repair the vehicle sufficiently, or at all, during the period since 1987.

In the joint written statement of defence, apart from general denials, it was pleaded in answer to the said paragraphs o[ the plaint, first that the plaint disclosed no cause of action; and in the altemative, that the suit was time barred. These two pleadings, however, were not pursued, on trial. In the

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further alternative, several allegations, (in form of evidence), were made, from which it is not easy to discern Motor Mart's precise defence. The following sub-paragraphs in paragraph 6 of the defence, however, appear to represent its defence:-

- "(a) The plaintiff contracted with M/s Bruce (U) Ltd. to repair motor vehicle No. UXL 225 1987. - (b) $M/s$ Bruce (U) Ltd. finished the repairs and handed in the vehicle to the plaintiff. - (c) That while the motor vehicle No. UXL 225 was in the custody of the plaintiff it developed new mechanical problems for which the 1^st defendant was contacted to handle but it refused and referred to the garage of the $3^{rd}$ defendant. - $(d)$ ... ................................ - $(e)$ ... ................................ - (f) The plaintiff insisted that the $1^{st}$ defendant who does not in anyway deal in motor vehicles and mechanical repairs of motor vehicles does repair the vehicle. - (g) The first defendant shall aver that it indicated to the plaintiff That it had engaged the 3^rd defendant to do repairs but that the repairs were on condition that the $3^{rd}$ defendant obtains spare parts from the United Kingdom. - (h) The $1^{st}$ and $3^{rd}$ defendants shall aver that the said spare parts are not yet available and the plaintiff's car cannot therefore *be repaired until they will be available.*" (emphasis added)

I think this pleading can be paraphrased into the following three contentions, namely:

- (a) that the contract to repair the vehicle in 1987 was between Kanyomozi and Bruce (U) Ltd., and when the repairs were completed, the vehicle was duly delivered to Kanyomozi. - (b) that subsequently the vehicle developed <u>new mechanical problems</u>, and Kanyomozi insisted that Motor Mart undertakes the repairs, where upon the latter instructed Leyland Daf (U) Ltd., to carry out the repairs, but only on condition that Leyland Daf first obtains the required spare parts from the United Kingdom. - (c) That the spare parts were unavailable, and the vehicle could not yet be repaired.

It was from the foregoing pleadings that three issues were framed at the commencement of the trial. The issues, as framed, were:

- "1. Whether there was a contract between the parties. - 2. Whether there was a breach of contract by the defendant. - 3. If so, what remedies are open to the plaintiff."

The learned trial judge answered the first issue in the affirmative, in relation to Motor Mart, the $1^{st}$ defendant. He said:

> "From the entire evidence on record, PW2 (Kanyomozi's wife) visited the premises of BRUCE (U) LTD., where she met a gentleman called KIMERIA. This Kimeria introduced her to

a workshop manager who according to the evidence on record First defendant recognized both is called WALUSIMBI. Kimeria and Walusimbi as its agents and that they acted on its behalf. It is pertinent here to produce the letter of 21.6.90, exhibit P3 written on behalf of the first defendant to the Plaintiff."

After reproducing the letter, the learned trial judge went on, in his judgment, to say:

> "In light of the contents of this letter the argument by Mr. Matovu (counsel for Motor Mart) that there was no contract between plaintiff and first defendant is not, with respect, There was a contract between Plaintiff and first tenable. defendant evidenced by the document styled estimates exhibit P.3 dated 22.4.87 and referred to in the above letter."

In my view this holding is well founded as it is supported by evidence which the learned trial judge properly refers to. No evidence was adduced to prove the allegation in the written statement of defence, of a separate completed contract between Bruce (U) Ltd. and Kanyomozi. Besides, as I have noted earlier in this judgment there is no appeal against the holding. I therefore need not discuss it any further.

The answer to the second framed issue appears to be in three parts. The learned trial judge held:

(1) that Motor Mart was in breach of contract up to 1990;

- (2) that by his conduct Kanyomozi waived all his rights under the contract arising prior to 1990, and therefore, was estopped from suing on basis thereof; and - (3) that when Kanyomozi gave Motor Mart another chance to complete the repairs, time was not made of the essence of the contract, and consequently Motor Mart was not in breach after 21.9.92 so that the suit was premature.

It is this answer to the second issue, to which I shall now turn, that is the bone of contention in this appeal. I shall revert to the answer to the third issue later in this judgment.

Four grounds were raised in the memorandum of appeal. At the hearing of the appeal, however, Mr. Mulira who represented Kanyomozi abandoned grounds 3 and 4 for lack of merit. The remaining two grounds, which were argued together, read:

- "(1) The learned Judge erred in fact and misdirected himself on the law when he held that appellant by his conduct had waived ALL of his legal rights under the contract that would have been due to him up to 1990 when the suit vehicle was delivered to him in unsatisfactory state of repairs. - (2) The learned trial judge failed to evaluate the evidence on record and erred in fact when he made the finding that from the entire evidence on record it appeared that this was a contract without any stipulation with regard to time, and that the appellant was estopped from raising any breach that was committed before 21^st August 1992."

Basically Mr. Mulira's argument on these grounds was that the holdings complained of were not based on any pleading or evidence. He submitted that neither waiver nor estoppel was pleaded by the defence, and that there was no evidence on either issue since Motor Mart and the co-defendants opted to adduce no evidence at att. The holdings, according to counsel, were ^adeparture from the issues tiatned fbr determination by the court. Counsel further submitted that the leamed trial judge had tailed to properly evaluate the evidence as a whole and in particular Kanyomozi's explanation tbr not towing the vehicle away from the garage, and allowing Motor Mart another chance to complete the rePairs'

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In reply, Mr. Tumusingize, Counsel for Motor Mart, supported the holdings by the trial judge based on what he called rwo significant dates in the case, namely December 1990, when the vehicle was delivered to Kanyomozi in the belief that it was completely repaired; and 2l " september 1992, when Motor Mart intimated that the engine of the vehicle was to be overhauled at its expense. According to counsel the finding of the court that the suit was premanlre was premised on Motor Mart's said intimation. He reiterated the reasoning of the leamed trial judge that after waiting from 1987, during which period he was made aware of the difficutry in procuring spare parts' and then giving Motor Mart another chance to repair the vehicle, it was incumbent on Kanyomozi, betbre filing suit, to give notice that time had become of essence of the contract; and that in absence of such notice Kanyomozi was estopped from filing suit only four months after Motor Mart's undertaking to meet the cost of the engine overhaul.

In coming to the conclusions that he did, the learned trial judge first said this in his judgment:-

> "On the second issue there is evidence to show that plaintiff delivered his vehicle to the first defendant as far back as 1987. In 1990 there was an attempt by the first defendant to deliver the vehicle. It was found to be in state of unsatisfactory repairs. The first defendant undertook to correct the situation. See Exhibit P.5. As a general rule, the law does not regard a promissor as discharged unless he had completely and precisely performed the exact thing that he agreed to do. Clearly at this stage the first defendant was in breach of contract. From the entire evidence on record it appears to me that this was a contract without any stipulation in regard to time. The only reasonable inference to be drawn therefore is that time was to be reasonable. In my judgment it could not be said with any stretch of imagination that a vehicle delivered in 1987 for repairs and delivered in 1990 still in unsatisfactory state of repair, the work was carried out in reasonable time. That:

> > 'Your vehicle is of a type which was never imported into Uganda in any quantity and has been out of production for many years' and therefore lacking spares for its satisfactory repairs would not avail any defense to the 1^st defendant."

The learned trial judge observed in effect, rightly in my view, that Motor Mart should not have undertaken the contract if it could not do it. Having said all that, however, the learned trial judge went on to say: "But it seems to me that by his conduct plaintiff waived all of his legal rights under the contract that would have been available to him up to 1990 when the vehicle was delivered in unsatisfactory state of repairs. In his evidence he said:

'I abandoned the idea of towing it as earlier suggested by my advocates and agreed that they should go on with the repairs. The basis of my abandoning the towing is to be found in Exhibit P.5.'

Exhibit P.5 is the letter written on $21^{st}$ September, 1992. This suit was filed on 19^th January, 1993. This is a period of about four months after Exhibit P.5 was received."

After quoting a passage from the judgment of Denning L. J., in **CHARLES** RICKARDS vs OPPENHEIM (1950) ALL ER 420, the trial judge went on to hold:-

"In this case I would hold that plaintiff is estopped from raising any breach that was committed before 22^nd September, 1992. As I said before, this suit was filed on 19^th January, 1993. There is no evidence that before this and between this date and $21^{st}$ September, 1992 plaintiff had given any notice to the first defendant demanding that he had to have his vehicle within a fixed period of time thus making time of essence."

Finally, after another quotation from the said judgment of Denning L. J., the learned trial judge concluded thus:-

> "In the case before me, I am of the view that plaintiff having decided to give the first defendant another chance to try on the vehicle he should have protected himself by notice making time of essence... In the absence of this notice I am constrained to agree with counsel for the defendants that the suit was premature. I regret to have to come to this conclusion."

It appears to me from the tbregoing excerpts in his judgrnent, that the leamed trial judge formed the view that Kanyomozi's rights under the contract had undergone change at some point in time between December t990 and 21" September,l992, and that the change came about as a result of Kanyomozi's conduct which amounted to a waiver olhis rights. Although in the judgment that conduct is not expressly described, it is obvious that what is retbrred to, is the tact that Kanyomozi allowed Motor Mart to have another chance to carry out and complete the repairs on the vehicle, after the initial failure. Before considering whether that amounted to waiver, I think it is necessary evaluate the evidence in order to Put that fact in its proper context

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Kanyomozi testified that at the time he decided to take the vehicle for repairs the engine had collapsed and the vehicle was in a bad state. He asserted repeatedly, both in examination-in-chief and in cross-examination that it was mutually agreed, that the repairs were to put the vehicle in a road worthy condition and that tbr purposes of ascertaining that, a road test would be carried out upon completion of the repairs. On that understanding, estimates of repair costs were made after examination of the vehicle in June 1987 and were revised in subsequent months. Ultimately an invoice for work done was raised in the sum of Shs.l.6m/= which he paid to Motor Mart. In 1990 when the vehicle was released to him, it was taken by Nlotor Mart's technicians for a road test. The vehicle broke down in the process.

When he contacted the General Manager of Motor Mart he was told to renlm the vehicle to the garage. Eventually Motor Mart undertook to meet the cost of overhauling the engine of the vehicle. It is not clear from Kanyomozi's evidence when this undertaking was first made, but it was confirmed in ^a letter written to him on 2l't September 1992. Earlier, Leyland Dat. at whose garage the vehicle was, had written to Kanyomozi a letter dated October 25,1991, Exh. D2, to say:-

## "RE: YOUR VEHICLE BEDFORD TK L|XL 225

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The above vehicle was presenled in our workshop to repair the faulty braking system and engine overheating. On inspection, the breaking system needs completely overhauling and the overheating problem as that water is leoking from the engine between the cylinder head and the crank case and needs ertensive repairs.

Unfortunately spurc parts for this lype of vehicle ore not availuble in lLganda and I wish to inform you that we sre not able to carry out any repairs to this vehicle in our workshops."

To the extent that Leyland Daf wrote this letter, not as the party who contracted with Kanyomozi, but for all intents and purposes, on behalf of Motor Mart, I do not accept the submission by Mr. Tumusingize, that if matters had rested with that letter, Motor Mart would have had no more responsibility for the vehicle repair. That may wel! have been the case. if this letter had been written in 1987 when the vehicle was first inspected. However, it was written in l99l after repairs had been auempted and had

been paid for. The vehicle was in Leyland Daf's garage on Motor Mart's instructions for the purpose of making good the deficiency in the repairs carried out earlier. This is borne out in two subsequent two letters. The first is the letter dated 2^nd March 1992 written to Kanyomozi's advocates by Motor Mart. It reads:

## "RE: MOTOR VEHICLE UXL 225

Thank you for your letter of 18^th February 1992. The purpose of our request to Mr. Kanyomozi was that Leyland Daf should establish whether the overheating problems experienced related to earlier repairs carried out by Bruce (Uganda) Ltd.

We regret we cannot accept responsibility for repairs, unless we have a proper technical evaluation by a competent engineer *approved by ourselves.*" (emphasis is added).

Although the request that had been made to Kanyomozi, and the advocates' letter of 18^th February 1992, to which this was a reply, were not brought out in evidence, it is reasonable to infer from the second letter, which is dated 21^st September 1992, that Motor Mart was eventually satisfied that the "problems experienced related to earlier repairs" and for that reason accepted responsibility for them. The second letter is Exh. P5 which was addressed to Kanyomozi by the General Manager of Motor Mart. It reads:

> "Thank you for your letter of 4, September, which came as a considerable surprise to me. I have given clear instructions to Mr. Risk Pronk of Leyland Daf that they should carry out an engine overhaul at our expense.

llhen lust I checked they were working on obtaining spares and they did say they were experiencing difficulties. Your vehicle is of a type, which was never imported into Uganda in any quuntity, and has been out ofproduction for many years.

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By copy of this lener I would request Leyland Daf to advise you and myself on current position. " 1'emphasis added)..

Again it is unfortunate that the contents of Kanyomozi's letter of .[. September 1992, which considerably surprised the General Manager, were not disclosed in evidence. Nonetheless in my view, the irresistible inference to draw from this lefter is that the said"clear instntctions" to Leyland Daf were given, not on the day, but earlier than the date when the letter was written; hence the intimation: "When last I checked they were working on obtaining spares. " The expression "/ast checked'coupled with the request that Leyland Daf advises on 'current position" clearly indicates not only that there had been at least one other check before, but also that the instructions to Leyland Daf to overhaul the engine at Motor Mart's expense, had been given earlier still. So, although the undertaking to meet the expense is referred to in the lener, Exh. P5, it must have been made earlier than 21" September 1992.

This tends to tally with Kanyomozi's testimony that when he took the vehicle back to the garage at Luzira, after it broke down during the road test, Mackenzie, the General Manager of Motor Mart, undertook to repair it on his account. Furthermore, although Kanyomozi testified that the basis of abandoning the idea of towing away the vehicle fiom the garage was "to he found in Ex. P5" it does not necessarily mean that he first became aware of

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the undertaking from reading the letter; nor that this was the only reason why he allowed the engine overhaul to be undertaken after the initial failure. full explanation during cross-examination. He gave his After acknowledging that he had received the letter of 2^nd March 1992, Exh D1, he said:

> "My understanding of the letter was that they were going to repair the vehicle at their expense I abandoned the idea of towing it as earlier suggested by my advocates and agreed that they go on with repairs. The basis of my abandoning the towing is to be found in exhibit P5. I was not informed of the problem of spare parts when I first took my vehicle to them. My vehicle was not unique model."

Again after acknowledging that he had received the letter of October 25, 1999, Exh. D2, he said:-

> "After that I went to them and they indicated they would get the spares. One cannot wait for ternity (sic).................................... out whether spares came. I inquired about whether the vehicle was finished. Mackenzie said the vehicle would be repaired ...... I did not find it reasonable to withdraw the vehicle from the defendants and take it elsewhere. Defendants were agents of importing these vehicles. Waiting has limit. I was told it could take 2-3 months to repair the vehicle."

As I have said earlier in this judgment, the two letters from Motor Mart tend to corroborate Kanyomozi's testimony. The defense did not offer any evidence to contradict or otherwise modify that testimony. The learned trial judge did not find the testimony, or any part of it, unreliable, and I find no

reason to differ from that. The position as I find it, theretbre,, is, in ^a nutshell, as follows:

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In 1987 Kanyomozi's vehicle was in a bad state, its engine, inter alia, having collapsed. Motor Mart agreed to repair the vehicle and put it in ^a roadworthy condition. For that work Motor Mart charged, and was paid about Shs. 1.6 million. When in I990 the vehicle was retumed to Kanyomozi it was discovered that Motor Mart had not pertbrmed its part of the contract because the vehicle broke down upon being put on a road test. Motor Mart accepted to take the vehicle back into the garage and to have the engine overhauled at its expense. Kanyomozi found that proposition reasonable, and accepted that Motor Mart should make good its pertbrmance. N{otor Mart never made good its performance. Hence the suit. The leamed trial judge found as a fact, and I agree with him, that according to the evidence there was no stipulation, at any stage, as to the time within which to complete the repairs. He then drew int'errenc e lhat "time vtas to be reasonable". Again I respectfully agree because in those circumstances the law imputes a term in the contract, that work would be performed within ^a reasonable time. The learned trialjudge then held that the period from 1987 to 1990 was unreasonable, in the circumstances, and that lack of spare parts was no defence to Motor Man. Again I agree. What I find difficult to understand, however, is how and why the learned trial judge came to the conclusion, that thereafter the position changed. He did not indicate in what way Kanyomozi, or, fbr that matter the [aw, discharged Motor Mart from its

obligation to repair the vehicle within reasonable time. Nor did he indicate how, if at all, lack of spares became available as a defence, to Motor Mart after 2l" September 1992.

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It seems to me, with due respect to the learned trial judge, that he erroneouslv olaced reliance on the decision in RICKARDS vs OPPENHEIM (supra) from which he quoted extensively. I should hasten to point out that while the passages he quoted from the judgment of Denning L. J. (as he then was) are quite sound, and the thcts in that case are similar to those in the instant case, the two cases ditler in material particulars. In the RICKARDs' case, unlike in the instant case, there was an express stipulation in the contract, making time for delivery, of the essence of the contract. When the stipulated time lapsed, the innocent party waived the stipulation by indicating that he would accept delivery on subsequent dates. After a couple of disappointments, however, the innocent party gave to the defaulting party, express notice that he would not accept delivery after four weeks. Delivery was offered long after the four weeks had expired and it was refused. In that case, unlike in the instant case, it was not in dispute that the innocent party had waived the initial stipulation as to time lor delivery. The central issues for determination were whether after the waiver, the innocent party' was entitled to give notice making time of the essence again; and if he was, whether the notice he gave was reasonable. [t was hetd that he was entitled and that in the circumstances of the case the four weeks notice was reasonable. In the instant case there was no stipulation of time, and so, there

was no stipulated time to be waived. Secondly in the instant case the question was not as to the reasonableness of any notice given by Kanyomozi, the innocent parry, but rather the question was as to the reasonableness or unreasonableness of the time taken by Motor Mart without completing its obligation. The hotding by the trial judge, that Kanyomozi ought to have protected himself by giving a fiesh notice after 21" September 1992. making time of the essence, implies. in effect, that Kanyomozi had waived the term imputed by law, that Nlotor Mart was to complete its contractual obligation within reasonable time.

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I shall revert to the issue of waiver shortly. First, I should briefly dispose of the judge's proposition that Kanyomozi needed to protect himself by giving notice that time had become of essence. With due respect, I think that proposition has no sound basis or justification. [n RICARDS, case the holding was that the innocent parry was entitled to give the express notice that it did, not that the notice was a necessity. If no such notice had been given, the law would still have imputed a term that completion was to be within reasonable time. In the instant case that implied term was applicable and I would therefore hold that there was no legal necessity for Kanyomozi, after 21" September,l gg2 or at any other time, to give notice that time was to be of the essence of the contract.

Next I have to consider whether Kanyomozi waived any tegal right due to him as held by the trial court. As I have pointed out earlier in this judgment,

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what appears to have been held to constitute the waiver, was Kanyomozi's decision to allow Motor Mart to make good the deficiency in repairs, instead of withdrawing the vehicle and file suit immediately after the initial failure. To my understanding, for an act, statement, or other conduct, to be construed in law as a waiver, it must be shown that there was mutual agreement to alter or otherwise affect the legal relationship of the parties. BIRD vs HILDAGE (1947) 2 All ER 7 was a suit between landlord and tenant, whose lease agreement stipulated dates on which the quarterly rent was payable. The landlord was in the habit, however, of accepting rent paid well after the due date. Subsequently, when, as usual, the tenant failed to pay on the due date, the landlord filed suit for possession and refused to accept payment tendered on the date the suit was filed. In his defense, the tenant paid the rent into court. The English trial court dismissed the suit. On appeal, the Court of Appeal held that where an act had to be done periodically, the fact that it had been done irregularity in the past, does not justify an assumption that the irregularity would be waived in the future. With reference to the facts of that case, the court observed:

> "Indeed, it would be most unfortunate if, in such a case, mere forbearance by a landlord to exercise his rights of distress or reentry on one or more occasions was held to bind him for the future, since landlords would then tend to be more harsh in the enforcement of their legal rights. There may, no doubt, be cases where the court can properly infer from the conduct of the parties a variation of the original agreement... We can find here no evidence of any such variation of the contract....". certain circumstances, prevented from denying something. which he had previously asserted to be true. Estoppel ... can never found a cause of action, though it may enable a cause of action, which would otherwise fail, to succeed."

The learned Justice of Appeal cited, with approval, the description of that difference as set out in the judgment of the Privy Council in DAWSON'S BANK LTD vs JAPAN COTTON TRADING CO. LTD. (1935) A. I. R. PC 79 at p.82 part of which I find useful to reproduce here for emphasis. It reads as follows: -

> "These words, which are the true foundation of the judgement, disclose, in their lordships' opinion, a confusion of thought upon the subjects of estoppel and waiver. Estoppel.........is a rule of evidence which comes into operation if (a) a statement of the existence of a fact has been made by the defendant or an authorised agent of his on his behalf, (b) with the intention that the plaintiff should act upon the faith of the statement, and (c) the plaintiff does act on the faith of the statement. On the other hand, waiver is contractual, and may constitute a cause of action; it is an agreement to release or not to assert a right. If an agent with authority to make such agreement on behalf of his principal agrees to waive his principal's rights then----the principal will be bound, but he will be bound by contract not by estoppel. There is no such thing as estopped by waiver."

I agree with that description of waiver and estoppel. Upon applying the same to the instant case, I again find no difficulty in holding that Kanyomozi did not waive any of his legal rights because at no time was there any agreement between Kanyomozi and Motor Mart that the former would not assert his right or that the latter was released from its obligations in accordance with the terms of the contract. Secondly, going by the said descriptionitisquiteevidentthatintheinstantcase'theissueofestoppel didnotarise. Kanyomozipleadedandadducedevidence'whichprovedthat Motor Mart had failed to perform its part of the contract within reasonable time. tt was not suggested in evidence at the trial, or in the judgment' that Kanyomozi had made any representation which he should be prevented trom denying because Motor Mart had acted on the faith of the representation. In short there is no representation Kanyomozi was estopped from denying' In the circumstances, I think grounds I and 2 olappeal must succeed'

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Before I take leave of the appeal, however, I have to consider if this Court should make any consequential orders. In the Memorandum of Appeal it was prayed that the decision of the High court be set aside and that judgment be entered as prayed in the lower court. The prayers in the amended plaint dated l2e March 1993 were for, inter alia, special and general damages with costs and interest both on the damages and on the cost. There was an alternative prayer for "a road worthy lorry in good repair similar to the one in issue. " Unfortunately counsel did not address this Court on the question of remedies. Ordinarily the appropriate order would have been to remit the case to the High Court for determination of the reliet-s the plaintiff should be granted. Two reasons, however, convince me that in the interests ofjustice this titigation ought to be concluded here. The trrst is that the litigation has been protracted. I am aware that it is not uncommon lor a civil suit in Uganda to last in the courts for as long as seven vears and more. However, every opportuniry possible, should be utilised to

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expedite disposal of cases. recalling the time old marim that "justice delaved is justice denied", Secondly. the trial court did consider what remedy would have been awarded if the suit had succeeded. Although the trial court did not go the full length to determine the quantum of damages, sutficient findings of fact to base an assessment on, were made. By virtue of S.-+0 (2) of the Judicarure Act, 1967 as amended by Statute No. 12 of 1987, (which was the law applicabte to this case) this Court has "the power, authorilv and jurisdiction vested in the court from vthich the appeal is brought ". In my opinion this is a proper case in which to invoke those provislons and assess the damages.

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For special damages the plaintiff claimed Shs.75,5 15,650/=. In the "particulars of special damages " six heads of claim were listed. The first five, totaling Shs.3,5 15,650/:, comprised amounts allegedly paid for spare parts and repair costs. The leamed trial judge found that some of the heads were not proved while others were not claimable. I have no reason to interfere with that finding. The sixth head of claim for Shs.72ml= was for loss of income from January I ⁹⁹¹. The learned trial judge found that it had been proved that the vehicle was a commercial vehicle and that Motor Mart ought to have known that t-act. He also found that it was also proved that Kanyomozi had previously eamed income flom hiring out the vehicle at the rate of Shs.50,000/= per trip, and that the vehicle used ro make two trips per day. He did not compute the amount he would have awarded on this head, but observed that the total amount would have been subject to income tax.

However there are other considerations that should affect the final award. The sum of Shs.72ml= appears to be the equivalent of gross eamings at the aforesaid rate for 720 days or approximately 2 years. In my view, another legitimate deduction would have to be costs of operating the vehicle. Although no evidence was adduced on this aspect, it is imperative to take into account the inevitable, that Kanyomozi would have spent on fuel, general maintenance of the vehicle, and even on wages since he testit'ied that he did not drive the vehicle himselt'. Then there are such imponderables as the likelihood:

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- (a) that the vehicle, being old, would occasionally require repairs, on which occasions it would be offduty; and - (b) that the vehicle would not have been hired on every day even when it was available, for it used to be hired "casually" rather than on permanent contract.

Taking all those factors (including income tax) into consideration, I think that 20o/o of the sum claimed would be close to the net income lost and I would award that as special damages. The leamed trial judge made no comment on the claim for general damages. I think he was right as no basis was laid either in evidence or argument for that claim, which, in any event, is not usual in a suit for breach of contract. I would disallow it. I would also reject the altemative prayer. which is in etfect for specitic pertbrmance. In my view the wronged party in the instant casl3, can be appropriately

enforce his contractual right though court suit, to take his vehicle fbr repair elsewhere. or to choose to write lt off in view of its age'

ln the result, t would allow this appeal. I would set aside the judgment of rhe High Court and substirute therefor, judgment tbr the appellant Yonasani B. Kanyomozi against the respondent, Motor Nlart (U) Limited, in the sum of Shs.14,400,000/= special damages, with interest at 6Vo p'a' from the date of tiling suit till payment in full. I would also award to the appellant costs of this appeal and in the High Court.

DATED ar ,'t { Mengothis /4 daYof J'-'2.000.

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J. N. Mulenga Justice of The SuPreme Court

## THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA

### **AT MENGO**

# (CORAM: ODER, MULENGA AND KANYEIHAMBA,J. J. S. C.) CIVIL APPEAL NO. $\frac{15}{10}$ OF 1995

### BETWEEN

### YONASANI KANYOMOZI :::::::::::::::::::::::::::APPELLANT

### AND

# MOTOR MART (U) LTD :::::::::::::::::::::::::::::::::::

(Appeal arising from judgment and Decree of the High Court (J. B. A. Katutsi, J) at Kampala in Civil Suit No. 37 of 1993 dated 19^th January, 1995)

# JUDGMENT OF KANYEIHAMBA, J. S. C.

I have had the benefit of reading in draft the judgment of my learned brother, Mulenga, J. S. C., and I agree with him that this appeal ought to succeed. I also agree with the orders he has proposed. I would award costs in this appeal and in the High Court to the appellant.

DATED at MENGO This ......... Day of ...........2000

# G. W. Kanyeihamba JUSTICE OF THE SUPREME COURT

I think similar observations may be made in respect of the instant case. Mere forbearance by Kanyomozi to exercise his right to sue in 1990, 1991 and 1992 did not justify an assumption that continued failure to complete the repairs would not be acted upon. It did not amount to a variation of the original contract, and consequently did not bind Kanyomozi in future in regard to his rights under the contract. With due respect to the learned trial judge, I am constrained to say that he did not direct his mind sufficiently or at all to the necessary elements required for the application of the principle of waiver and the doctrine of estoppel. In a nustshell, his decision in this regard was that Kanyomozi was estoppel from suing because he had waived his legal rights under the original contract. This however is erroneous. The two are distinct concepts independent of each other. Waiver arises from express or implied agreement between the parties. Estoppel arises from a representation of one party to another on which that other acts.

This difference between waiver and estoppel was highlighted by the Court of Appeal for Eastern Africa in NURDIN BANDALI vs LOMBANK LTD (1963) EA 304, where Newbold J. A. (as he then was) said at p.314:

> "... the distinction between waiver and estoppel should be clearly appreciated. Waiver is based on a contract, express or implied, between the parties. Thus it arises from a term, express or implied, of a contract, and before any such term can exist a valid contract must be established. If it is found that a contract is established and that it contains such term, then that term, like any other term in a contract, may found a cause of action." (and, I would add, a defence). "Estoppel, on the other hand, is primarily a rule of evidence whereby a party to litigation is, in

#### THE REPUBLIC OF UGANDA

#### IN THE SUPREME COURT OF UGANDA

#### AT MENGO

(CORAM: ODER - JSC, MULENGA - JSC & KANYEIHAMBA - JSC) $15$ CIVIL APPEAL NO. 10-OF 1995

#### BETWEEN

YONASANI KANYOMOZI: *...... ......* APPELLANT AND

MOTOR MART (U) LTD: $\ldots\ldots$ $\cdots\cdots$ **RESPONDENT**

(Appeal arising from the judgment and decree of the High Court (Katutsi, J) at Kampala dated 19-1-95, in Civil Suit No. 37 of 1993).

### JUDGMENT OF ODER - JSC

I have had the benefit of reading in draft the judgment of Mulenga - JSC, with which I agree. The appeal should be allowed.

As Kanyeihamba - JSC, also agrees, the order of the Court shall be as proposed by Mulenga, $\mathcal{S} \cdot \mathbb{C}$ .

Dated at Mengo this: . $\mu$ this day of: June. 2000.

A. H. O. ODER JUSTICE OF THE SUPREME COURT