Gulthamed Mohamedali Jivanji t/a Jivanji Agencies v Sanyo Electrical Company Ltd

The court needed only to look at the pleadings: Sanyo pleaded it was the manufacturer and distributor, and that Sanyo-Armco was its subsidiary and agent. That pleading was never denied and was therefore admitted under Order 6 rule 9(1). The trial judge's finding of fact on that basis could not be disturbed on appeal. The Sales and Marketing Manager of Sanyo-Armco testifying for Sanyo was unobjectionable.

Following Brooke Bond v Chai Ltd, a plaintiff pleading alternative relief must elect. The court held that counsel's opening at the formal proof, stating that prayer (c) for damages would be proved by the witness, was a sufficient election abandoning the alternative. No formal step was needed; the election could be made in the course of the hearing.

The court accepted the trite rule that special damages must be pleaded and strictly proved, but held the degree of certainty and particularity depends on the circumstances and nature of the acts. Paragraph 8 was admittedly sloppy but was not challenged in the superior court, so it caused no prejudice. The invoice-based evidence, tested in cross-examination, amounted to strict proof.

The court restated the principles from African Highland Produce Ltd v Kisoria: the plaintiff must take reasonable steps to mitigate, but need not injure himself or embark on dubious litigation, and reasonableness is a question of fact with the burden on the defendant. Jivanji said nothing in his defence; Sanyo obtained an injunction, demanded destruction of the goods, and advertised to alert customers.

The proved figure included unpleaded advertising charges of Shs 71,431.25 and was based on gross profit margins not pleaded. Relying on judicial definitions of 'profit', the court held net profits are recoverable. With no figures for trading expenses, it discounted the pleaded gross profits by one-third and recomputed the loss at Shs 6,362,293, adjusting the award downwards to that extent only.