[1997] UGSC 9

# IN THE SUPREME COURT OF UGANDA AT MENGO

(CORAM: MANYINDO DCJ, ODER JSC AND KAROKORA JSC)

# CIVIL APPEAL NO. 19 OF 1995

### **BETWEEN**

LUWERO GREEN ACRES LTD APPELLANT

AND

MARUBENI CORPORATION. RESPONDENT

> (Appeal from the Judgment of High Court of Uganda at Kampala (Mr. Justice W. K. M. Kityo) dated 9/8/94

> > in

Civil Appeal No. 14/95)

## JUDGMENT OF KAROKORA JSC

This is an Appeal against an Exparte Judgment and Decree on appeal of the High Court of Uganda at Kampala dated 9th August, 1994 (Kityo, S) in which he allowed the appeal and set aside the Judgment and Decree of the Chief Magistrate.

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- That the Learned Trial Judge erred in law and failed $(1)$ in his bounden duty as the first appellate Court when he merely read the lower Court record without re-appraising it and reaching his own conclusions; - $(2)$ That the Learned Judge erred in law when he imported into his judgment the contents of an affidavit accompanying an application for leave to appear and defend and relied on the same; - $(3)$ That the Learned Trial Judge erred in law and fact when he held that there was a written agreement between the parties; - (4) The Learned Judge erred in law when he accepted submissions on the fourth ground of appeal and considered the same submissions in his judgment when the ground of appeal offended Order 39 $r$ (1) (2) of Civil Procedure Rules; - (5) That the Learned Judge erred in Law when he held that Section 90 of the Evidence Act applied to the contract between parties; - $(6)$ The Learned Judge misdirected himself on the burden of proof in Civil cases.

I wish to point out from the start that both parties or their Counsel relied solely on written submission and therefore in deciding this appeal I shall rely on the record of appeal and written submission of both Counsel.

Dealing with the 1st ground of Appeal, I must state that it is now settled that the duty of the first appellate Court is to reconsider and avaluate the evidence and come to its own conclusions bearing in mind, however, the fact that it never saw the witnesses as they testified. See R v Pandya (1957) EA 336, Selle V Associated Motor Boat Co (1968) EA 123, James Nsibambi v Lovinsa Nankya (1980) HCB 81, Ephraim Ongom Odong and Anor v Francis Binega Donge C. A. No. 10/1987 (U/SC) unreported.

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then the resident Magistrate or Judge grants leave to defend, which leave may be granted either unconditionally or conditionally. Having obtained leave to defend, then the affidavit upon which that leave was granted remains, of course, upon the record but is in no circumstances evidence in the case itself. The defendant having obtained leave files his defence and the proceedings then continue in precisely the same way as if the suit had not been filed under that particular Order."

Order 35 of the Tanzania Civil Procedure Rules is simular to our Order 33 of CPR.

In the instant case, there is no doubt that the Learned Judge on appeal heavily relied on the affidavit sworn in support of the application, seeking leave to appear and defend the suit brought under the Summary Procedure and the Annexture "A", when these were not introduced as evidence in the suit itself. In my view, if the defendant wanted to rely on these (affidavit and Annexture A) as his evidence, it ought to have introduced them in evidence when it was testifying before Court to prove its case. It was therefore errenous on the part of the Learned Judge when he imported and heavily relied on the Affidavit and the Annexture "A" thereto at page 150 of the record/judgment line 9 to 19 when he held:

"Furthermore, it is noted that in support of appellant's application for leave to appear and defend this suit, that is, i.e. a suit filed under the provisions of Order XXXIII of the CPR, as a Summary Proceedings, the appellant continued to supply and receive or acknowledge payment, made in accordance with the stated terms see the supplied in Annexture $'A - J'$ . Therefore, the claim for payment of the whole price on the delivery had never been agreed upon among the terms and the Magistrate ought to have held so."

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The provlslons of Sectlon 90 of the Evidence Act reads in part as follows:

I'when the terms of contract or of grant or other dlsposltlon of property, have been reduced to the form of a docunent, and no evldence save as mentloned in Section 78 of thls Act' shall be given ln proof of the terms of such contract except the document ltself or Secondary evidence I's admissible

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Clearly, therefore, from the entlre evldence on record, the contract between the partles was not written. It was an Oral Contract and as such, Section 90 of the Evldence Act was wrongly invoked by the Learned Judge. Thls, therefore, disposes of grounds 1, 3 snd 5 whlch nust succeed.

I must, however, deal wlth whether or not there was evidence to Prove that the appellant supplled 2525 poles to the resPondent. lt was not disputed by DWt that 2525 poles were supplled by the appellant. ResPondent conceded through DWI that 2525 poles were supplLed to then, bu! arS,ued that only 2300 poles complled tlth their sPeclflcation. 1t was further argued for respondent that shs. 42,925,000/= paid was 852 down-paynent on dellvery of the poles,

However, it 1s noted from Annexture I to the Plaint that by L3l3l93 the appellant had delivered a total number of Poles amountlug to 2525 and the resPondent had Pald a tolal amount of shs' 42,925,000/= which vas 85f, of the total number of poles dellvered at shs. 20,000/- per pole' less ¹⁵² retention. The l5Z retention on 2525 poles at shs. 20'000/' each would leave a balance of shs. ⁷'575,0O01=, unpatd. There r^ras evldence thet the poles had been supplied when they were green' They were dried, trluoed and narked wllh number plates by the respondent' L,hich aciordlng to DWlrs admlsslon, on page 45 llne 27 of the record of the proceedlngs' meant they had conplled wlEh respondentrs specifications and therefore had been accepted by the Respondent,

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No doubt, the appellant had supplied 2525 poles to respondent and the respondent had received them and accepted them. When he dried, trimmed and marked them with their numbers, the contract was complete and therefore, the respondent could not retract the Contract on the ground that they had had excess poles. In my considered view since the appellant had supplied the poles and respondent had received them and altered their state, when they trimmed them according to their needs/requirement, they would not be permitted to withdraw or refuse to pay for all the poles supplied.

That disposes of all the remaining grounds of appeal, which also succeed.

In the circumstances, therefore, I would allow this appeal with costs here and in the Courts below. I would set aside the Judgment and Order of the Learned Judge on Appeal and substitute them with an Order dismissing the Appeal and confirming the Judgment and Orders of the Learned Chief Magistrate.

Dated at Mengo this ....................................

Tinkan A. N. Karokora

JUSTICE OF SUPREME COURT.

12/97. M. B. Babynnia for to App.<br>M. Ocheng charles for to Resp. Au. Emino Manano cont clerk delivees as directed

## **VI. MINITO**

(CORAM:

MANYINDO, D. C. I., ORDER, J. S. C., & KAROKORA, J. S. CA

CIVIL APPEAL NO. 19 OF 1995

# DETWIEN

LUWERO GREEN ACRES LTD. Humminimum minimum APPFLLANT

### $\sqrt{11}$

MARUBENI CORPORATION. HIM HIM HIM HIM HIM HES PONDENT (Appeal from Judgment of the High Court

at Kampala (Kitye, 1.) dated 9.8.1094

in H. C. C. S. No 11 of 1995)

# JUDGMENT OF MANYINDO, D. C.1.

I read the judgment of Karokora, J. S. C. in draft. I agree with it and as Order, J. S. C. also agrees, the appeal is allowed, the judgment of Kityo, J. allowing the uppeal set aside and an order dismissing the appeal substituted therefor. The appellant shall have their costs of this appeal and in the courts below.

$\mathcal{M}$ feb DATED at Menge this.

hangmds

$S. T.$ MANYIMPO

DEPUTY CHIEF JUSTICE