[2004] UGHC 99

### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT KAMPALA

#### CIVIL APPEAL NO. 32 OF 2003

### ^^^-^^^~niE\_CHIEFlMAGISTRATE'^S court of mengo at mengo IN CIVIL SUIT NO. 511/2000] ,

### THREE WAYS SHIPPING SERVICES (GROUP) LIMITED

APPELLANT

VERSUS TIMOTHY MWANDHA RESPONDENT

### BEFORE: THE HONOURABLE MR. JUSTICE YOROKAMU BAMWINE

#### JUDGMENT

**I**

The appellant, a limited liability company, was the defendant in the lower court. It was dissatisfied with the judgment and order of Her Worship Baine Omugisha Catherine, Magistrate Grade 1, delivered on 27-5-2003. It has appealed to this court against part of the said judgment and decree and set forth the following grounds:

That the learned Trial Magistrate erred in law and in fact 1. reaching a wrong conclusion. when she failed to properly evaluate the evidence thereby

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- 2. The learned Trial Magistrate erred in law when she made ordeis outside the claim and the issues in the suit. - 3. The learned Trial Magistrate erred in law when she failed to award costs to the Appellant on dismissing the Respondent's suit. - **I** 4. the burden of proof on the Appellant. The learned Trial Magistrate erred in law when she shifted

While the facts of the case are fairly easy to comprehend, the terms of the contract are not.

From the evidence on record, the Respondent had a vehicle in London. He wanted it shipped to Mombasa for onward transportation to Kampala. He personally delivered it to a shipping company in U. K. called TRANSWORLD SHIPPING U. K. to ship it from London to Mombasa. The clearing and forwarding company contracted to clear the The to Respondent alleges Kampala, the vehicle was damaged. He holds the Appellant liable for The Appellant denies liability and counter-claims a Appellant, a vehicle at Mombasa and deliver it to the Respondent in Kampala. that in the process of transportation from Mombasa the said damage. sum *of Shs. 468,000=.*

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The transportation contract is based on a letter, P. Exh. 1. It is a letter

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dated 27-12-99 addressed to the Respondent. It reads:

"Dear Sir,

### RE: CLEARANCE AND HANDLING QUOTE FOR 1 UNIT MERCEDES BENZ

Further to our discussion held at our office premises and as per your request below are our rates to clear and handle your consignment stated above Ex-Mombasa to Kampala I. C. Ds uncleared.

| $\overline{\phantom{a}}$ | Shore handling | USD 96.72 | |--------------------------|-----------------------------------------|-------------------| | ÷ | Delivery Order | USD 35.00 | | $\overline{a}$ | Removal Charges | USD 22.00 | | ÷ | T. R. L/ $3^{rd}$ party insurance (Kenya) | USD 40.00 | | $\overline{a}$ | T. R. L./ $3rd$ party insurance (Uganda) | USD 20.00 | | ÷ | Inter border clearance | USD 20.00 | | | Total | <b>USD 580,72</b> | | | | |

$N. B.$ The above quote does not include THC charges at destination part of Mombasa, Local Clearing and I. C. D. charges.

Terms and conditions:

- All rates quoted above are subject to increases in prevailing statutory part/ Fuel tariffs. - All cargo is handled entirely at owner's risk, terms and conditions, as Three ways Shipping Services (Group) Ltd. Shall not accept liability for any loss, damage, deviation or misdelivery howsoever. - All duties/taxes etc in Uganda for receiver's account.

All other standard Three ways shipping Services (Group) Ltd trading terms and conditions are applicable and available on request.

Anticipating being of service to yourself.

Best Personal Regards.

$(signed)$ JEFF D. B. BAITWA"

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Kampala in When the respondent went to inspect it at the Appellant'^s yard, the Appellant issued to him an invoice for Shs. 885.954=. cleared and transported to r Magistrate made a are undisputed. Tlle learned Trial number of findings most of which They include that the Respondent made payments as stated in P. Exh. 1. And also that the M/V was January 2000.

D. Exh. II. The Respondent made a part payment. The Respondent took a mechanic to the Appellant's yard to inspect the vehicle and at the end oi the day, the vehicle was repaired at a cost of Shs. 1.590.000='to the Respondent. The respondent then issued appellant in the sum of shs. 486,000=, had the car released to him but later stopped payment of that cheque. Appellant retained the log book. The Respondent contended at the hearing that he stopped payment of the cheque after discovering that an old and unsuitable spare part had would that the Respondent is in agreement with the Appellant appear needed repair, the cost would not be covered by the that if the car amount payable that if any repair take care of it. was needed, the amount stated against 'service' would a post dated cheque to on P. Exh. 1. He appears to argue in the same breath been fitted in his car and yet he had not been informed about it. It

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On the above evidence, the learned Trial Magistrate held that the Appellant undertook to service the Respondent's vehicle before it set off from Mombasa to Kampala but did not service it. She held further that the Respondent failed to prove that failure to service the vehicle before it set off for Kampala could have caused need for repairs which were subsequently done and therefore failed to prove that the Appellant was negligent. She further held that the Appellant had failed to prove how the sum of Shs. 485,954= came about and therefore disallowed the counter claim.

The Appellant was dissatisfied with her findings and orders. Hence this appeal.

This court, as a first appellate court, is duty bound to review the record of evidence for itself in order to determine whether the conclusion upon the evidence by the trial court should stand. It is trite to make allowance for the fact that this court did not have the opportunity the trial court has of seeing witnesses give evidence. It is also trite to say that if the conclusion of the trial court has been arrived at on conflicting testimony after seeing and hearing witnesses, the appellate court ought to give due weight to the view of the trial court as to where credibility, lies. It is therefore now incumbent upon me to evaluate the evidence on record

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and the findings of the learned Trial Magistrate determine whether should be upheld.

ground i-That the learned Trial Magistrate erred in law and fac^when she failed to properly evaluate the evidence thereby reaching a wrong conclusion.

Mombasa. All there is on record is evidence from the Respondent himself that he personally drove the vehicle to TRANSWORLD SHIPPING U. K. There is no evidence of any pre-shipment inspection. When the vehicle reached Mombasa, the Respondent did not go there to satisfy himself that it was in the same condition as when he handed it over to TRANSWORLD SHIPPING U. K. The driver who moved it from the Port to neither side adduced evidence as to the condition of the vehicle upon its Baitwa's testimony is that the vehicle could not be driven absence Respondent of the driver's evidence on this point, it remains the Applicant's In her analysis of the evidence, the learned Trial Magistrate found that the respondent did not know the condition of the M/V when it arrived at Oscar Businge to Lulu Shipping yard due to engine problems; that it was from the *Port* **towed;** and that this state **of affairs** was brought to the attention of the before **action** was taken; the Respondent denies **it.** m the Lulu Shipping yard did not appear as a witness for either side. And release to Lulu Shipping. This is where the problem lies. Where as DW1

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word against that of the Respondent. The evidence was, so to say, in the equilibrium, without more or less of it to tilt the balance either way. Notwithstanding this state of affairs, there is evidence of an attempt to repair the vehicle. A spare part was apparently fitted in it but on arrival in Kampala the same was found unsuitable for the vehicle. As a result of the vehicle over heating, the spare had to be removed. It's apparent that both the Appellant and the Respondent saw that spare part. From the evidence, therefore, the vehicle was repaired while in the custody of the Appellant although the repairs were done unsatisfactorily. This fact was communicated to the Appellant who undertook to seek recovery of the cost of the spare part from the dealer in Mombasa, accordingly to P. Exh. VII. In view of the evidence on record that the unsuitable spare part was seen by the Respondent and in view of the existence of a cash sale Receipt, D. Exh. IV, which shows that 1 piece of central ignition control unit was purchased and fitted in Mombasa at a cost of KSh. 20,000=, there was, in my judgment ample evidence on record on which the court could make a finding, and did make a finding, that the Appellant incurred the expense in repairing the vehicle. In the absence of evidence that the vehicle was or was not vandalized between U. K. and Mombasa while in transit, and considering that the contract was to deliver the vehicle to the Respondent in Kampala, any legitimate expense incurred in repairing it would in my view be the Respondent's responsibility, all factors.

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From the evidence, however, the spare part which was fitted was not for Mercedes Benz. It failed to work in it and the Appellant undertook to recover its cost from the seller. The Respondent incurred expense in refitting a genuine spare. I doubt that in these circumstances the Respondent would be expected to meet the cost of that wrong spare part. I would think that such a loss should fall where it lies. In my view, from the evidence as presented to court, it was open to the trial Magistrate to find that the Appellant under took to repair the Respondent's vehicle before it set off from Mombasa to Kampala but it did not do so satisfactorily. This repair work should not be confused with service which the Appellant under took to do at a cost of USD 20.00 and there is no evidence that it did or did not do so. The trial court was entitled to find, on the evidence on record, that although the Appellant undertook to effect the repairs, albeit unsatisfactorily, it had not been proved that the Appellant was responsible for the condition of the vehicle which had given rise to the need to repair it.

The reason for this is in my view simple. The damage to the vehicle could have been before it came into the Appellant's possession. The evidence on record did not rule out that possibility. And although money had been set aside to service it, none had been set aside for any repairs, reported or anticipated.

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In my view, there was no difficulty with the basis of the counter claim. It was the equivalent in Uganda shillings the cost of the wrong spare in Kenya shillings.

The Respondent had initially agreed to refund it. He changed his mind on discovering that it was a wrong spare for a Mercedes Benz. In view of my holding that both parties have agreed that it was a wrong spare part, the Appellant's concession being manifested in its willingness to seek recovery of its cost from the supplier in Mombasa, the Respondent can not be faulted for refusing to meet its costs.

In my view, the learned Trial Magistrate substantially subjected the evidence before her to adequate scrutiny.

I am unable to fault her conclusion on it. There is no merit in the first ground of appeal.

GROUND 2: That the Trial Magistrate erred in law when she made orders outside the claim and the issues in the suit.

In her judgment, the learned Trial Magistrate observed that the Appellant had failed to show cause for holding into the Respondent's $M/V$ log book and ordered that it be handed over to the Respondent. In any sew, there was no different, write the mass of $\epsilon h^{\mu\nu}$ was the equivalent in because anisoms to $\infty$ of the Kenna Sinnings.

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The Respondent had minally appear to whind it. on diagonality subting was a none of the $\mathbb{R}^{M\times M}$ my holding has not memory and earlier. repairing the the Appellant's Indicessor long man-cart **possess** my log recovery of its maximum the supplier in $\mathcal{H}^{\mathcal{H}}$ not be faulted for railising to meet its And

In my view, the learned Trial Magistrile evidence before her to adequate seruino

I am unable to fault her conclusive ground of appeal.

$\pi$ my judgment, this $\epsilon$ of the proceedings. Illows that the log book $\alpha$ was not strange to the on miscarriage of justice to and disallow it.

GROUND 2: That the outside the claim

gistrate erred in law when she it on dismissing the Respondent's

In her jud had $f_{\text{turb}}$ and $\alpha$

d (P.15 last paragraph of judgment) that it of them had shown justification for

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**It is** not argument. Much as it was not among the prayers in the plaint, the Respondent asked for it during the hearing. He said (p.6, 5th paragraph ofjudgment). argued for the Appellant that this was not an issue before court nor was it ever mentioned in the counterclaim or ever raised in the trial. agree with this Respondent's

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"^I pray court, to transfer the liability of the repairing the vehicle to the defendant and to enable me repossess my log book from the defendant".

He was never cross-examined on the prayer above. In my judgment, this was an anticipated consequential order arising out of the proceedings. proceedings and would not in any way occasion miscarriage ofjustice to any body. ^I would find no merit in this ground and disallow it. Once the Appellant's claim against him failed, it follows that the log book r had to be returned to him. It is a matter which was not strange to the

failed\_to clairm GROUND 3: That the learned trial Magistrate erred in law when she award costs to the appellant on dismissing the Respondent's

The learned Trial Magistrate held (P.15 last paragraph ofjudgment) that each party prayed for costs but none of them had shown justification for

his favour **Im I** and thereby ordered each party to bear it It is argued by the Appellant that this was an error in law. the award of costs in is costs.

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From the took off time to evaluate She gave reasons for her decision not to award costs to either party. had a on the whole, neither the plaintiff nor the record, the learned Trial Magistrate the evidence. She found that defendant had established on a balance of probabilities that any of them valid claim against the other.

think it also lacks merit. ^I have addressed my mind to this aspect of the Appellant's appeal. ^I

The usual result in litigation is that the loser pays the winner's cost. S.27 of the Civil Procedure Act refers. However, this is a practice which is subject to the court's discretion so that a winning party may not necessarily be awarded costs. For example, in DERING VS. URIS [1964] the plaintiff his pounds. costs, even though they probably ran into thousands of **2\_ALLE. F1.66O** the plaintiff **sued** the defendant in respect of a **libel. The ju.y, who were obviously not sympathetic to the plaintiff, awarded him contemptuous damages of one halfpenny. The trial judge did not award**

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given for that omission. these circumstances, the trial magistrate ordered each party to bear their own costs. showing the condition of the vehicle at the point of embarkation, i.e. U. K, and at the point of disembarkation, i.e. Mombasa. The driver at the centre of the row did not testify and no reason was e-g- documents In the instant case, the evidence adduced by the parties was to say the least dissatisfactory. Most would be material witnesses did not testify. Would be relevant documents were not tendered in evidence as exhibits On the face of it, it looked like a case of deliberate falsehoods and denials. Neither party earns credit for that. In

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It is now settled practice that an appellate court will not interfere with the exercise of a discretion by a trial court, except where that discretion has been exercised unjudicially. See: Sheikh Jama vs. Dubat Farah [1959] EA 789 and Arthur Vs. Nyem Electricity Undertaking [1961] EA 492.

Upon of the case and the quality of the evidence adduced The nature warranted so. this court's evaluation of evidence, ^I am satisfied that the lower court did not act unjudically to order that each party pays its own costs.

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merit in this ground of appeal and dismiss it. ^I would find no

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2BOUND4. Trial Magistrate erred in law when she the Appellant.

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^I believe while comment on indirectly. **r** some aspects of this ground, directly or analyzing the evidence in respect of the first Ground of appeal, ^I did

this item. The trial Magistrate was responding to the Respondent's allegation in the plaint that the appellant failed to diligently carry out eventually repaired, the expense came to a whopping Shs. 1.590.000= which the Respondent wanted settled by the Appellant. When the vehicle was service before driving the Motor Vehicle. In her judgment, the learned Trial Magistrate found that the Appellant did not adduce any evidence to show that the service referred to in P. Exh. ^I was ever done. For the records USD 20.00 had been budgeted for

considered the rather long journey from Mombasa to Kampala ^I have the shipper in London. especially the rough nature of that road. ^I have also considered the 100 km or so journey which the vehicle covered before it was handed over to

this journey. Coupled with this is evidence that the vehicle Was about 14 years old and that the Respondent had used it for 2 years. " P ent did not adduce evidence of service to the vehicle before it

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The long and short of all this is that while the **I** Respondent was able to prove that ^a wrong spare had been fitted in the vehicle to get it to Kampala, he failed to prove that the expense he incurred on the repairs could whooly or at all be attributed to the wrong spare part. It is evident that before it was fitted, which of course did not the learned Trial Magistrate decided that the cost of the wrong spare part be borne by the party that bought it, i.e. the appellant, and the cost of the repair be borne by the vehicle owner, the Respondent. She may not similar language but her conclusion on the unable to therefore not found merit in In my view, such give credit to the Appellant, the vehicle required repair. In her wisdom, matter amounts fault her decision. The justice of the case so warranted. ^I have r this last ground of appeal. ^I dismiss it. repairs on the vehicle's arrival in Kampala were to be reasonably expected. The Respondent's argument or rather expectation that this would be covered by the Appellant from the USD 20.00 sounds rather cynical. have expressed herself in a to that. For the same reasons I gave in Ground I, ^I am

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In the final no reason to disturb the judgment and ^I uphold them. The appeal shall be dismissed appeal only to the Respondent and ^I order so. result, I have found orders of the lower court. with costs of the

YOROB U BAMWINE JUDG 1/12/2004

1/12/2004:

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Mr. Karugire for Respondent..

Parties absent.

t delivered. Court: Judg

yoroh MU BAMWINE JUDGE 1/12/2004

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#### THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA CIVIL APPEAL NO. 32 OF 2003 (ARISING FROM THE CHIEF MAGISTRATE'S COURT OF MENGO AT MENGO **CIVIL SUIT NO. 511 OF 2000**

### THREEWAYS SHIPPING SERVICES (GROUP) LTD............. APPELLANT

Versus

TIMONTHY MWANDHA ......................................

#### DECREE

This suit coming up for disposal before his lordship Justice YOROKAMU BAMWINE this 1^st day of December 2004 in the presence of MR. KARUGIRE counsel for the Respondent.

#### IT IS HEREBY ORDERED and DECREED that;

The Appellant's appeal be and is hereby dismissed. $\mathbf{1}$

The Appellant pays the Respondent costs of the appeal only. $\overline{2}$ .

Given under my hand and seal of this honourable court this 1^st day of December 2004.

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### DRAWN & FILED BY:-

M/S SEKABANJA & CO. ADVOCATES, PLOT 9 KAMPALA ROAD, P. O. BOX 2064, KAMPALA.

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FEE PAID 6000<br>RECEIPT No. 22-211076<br>For S. C. TTOJUDICI RY FEE PAID COOC COURTS OF JUL CATURE UCCORA<br>20.01.06