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THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA
AT MENGO
(CORAM: ODOKI, C.J., ODER, TSEKOOKO, KAROKORA, AND MULENGA, JJ.S.C.)
CIVIL APPEAL NO 4 OF 2000
BET WEEN
CHRISTINE BITARABEHO: ::::::::::::
APPELLANT
AND
EDWARD
KAKONGE: :::::: :::::: RESPONDENT
(An appeal from the decision of the Court of Appeal at Kampala (Okello, Berko, Mpagi-Bahigene, JJ.A.) dated 25th June 1999 in Civil Appeal No 4 of 1999).
JUDGMENT OF ODER, JSC.
This is a second appeal. It is brought against the decision of the Court of Appeal upholding the judgment of the High Court which allowed the respondent's suit against the appellant.
The background to the appeal may be summarised as follows:
The respondent, Dr Edward Kakonge, and his wife imported into Uganda a Mitsubishi Pajero motor vehicle registration No. UPX 135 from Japan in 1990. The motor vehicle is hereinafter referred to as the suit vehicle. The suit vehicle was registered in the respondent's names. The wife of the respondent Dr.
Zalah Kakonge (PW3) endorsed the registration book as the co-owner in order
to protect her interest in the suit vehicle. As the respondent
was a staff of
Makerere University, the suit vehicle was imported tax free. It was valued
between shs.25, and 35 million.
The respondent and his wife agreed to
sell the suit vehicle. Kampala City Council, to whom the respondent first wanted
to sell it
declined to buy it, because both sides could not agree on the
purchase price. It was in the course of negotiations with the City
Council that
the respondent told the husband of the appellant, Paul Bitarabeho, who was a
friend of the respondent, that he had a
brand new Pajero he wanted to sell. The
appellant's husband showed interest in the suit vehicle and agreed to buy
it.
They agreed on the purchase price of Shs. 25 million. It was also
agreed that Bitarabeho would make a down payment of Shs. 16 million
as a
deposit, then pay Shs. 7 million as taxes by the end of 1990. That would leave a
balance of Shs. 2 million, which could be paid
to the respondent at any time
thereafter.
The appellant's husband agreed to purchase the suit vehicle
on the understanding that he would be able to persuade his wife, the appellant,
to agree for him to sell his own old Pajero motor vehicle (referred to
hereinafter as "the old Pajero"). The respondent gave Bitarabeho a letter
authorizing him to drive the suit vehicle. He drove it away. He returned the
following day
to inform the respondent that he had failed to persuade the
appellant to agree to the selling of their 2nd hand Pajero; as a
result he could not raise money to purchase the suit vehicle and for
taxes.
When Paul Bitarabeho failed to raise money for the purchase price,
he agreed to rent the suit vehicle from the respondent. He and
the respondent
entered into a rental written agreement (Exhibit P.3), which was for a period of
less than one year. The rental rate
was Shs. 50,000= per day. Paul Bitarabeho
paid Shs. 11 million in advance. That would cover the period from 05-03-1990 to
October,
1990.
Bitarabeho subsequently died. At the time of his death, the rental advance
payment of Shs. 11 million had been exhausted.
After Paul Bitarabeho's
death, the appellant started to use the suit vehicle without the authority and
consent of the respondent.
When the latter demanded return of the suit vehicle
to him the appellant refused to do so. She had also refused to pay any more
rental
charges. Consequently, the respondent sued the appellant in the High
Court, for certain remedies, to which I shall return later
in this
judgment.
The appellant's case was that her husband, Paul Bitarabeho, had
purchased the suit vehicle out-right from the respondent at a price
of Shs. 16
million; of which Shs. 11 million was paid by cheque, and Shs. 5 million by
cash; that the respondent acknowledged receipt
of the Shs. 11 million by an
agreement, (Exhibit P.4); that thereafter the respondent himself handed over the
key and the registration
book of the suit vehicle to her husband. She claimed
that the delay in transferring the suit vehicle into the names of her late
husband
was because it was tax free.
The learned trial judge resolved in
favour of the respondent the two issues which had been framed at the
commencement of the trial.
They were:
i) Whether or not the suit vehicle belonged to the plaintiff;
and
ii) Whether the plaintiff had any claim at all over the suit
vehicle.
After the trial of the suit, the learned trial judge entered judgment in favour of the respondent. The appellant appealed to the Court of Appeal, which dismissed his appeal Hence this appeal.
At the hearing of the appeal, the appellant was represented by Mr. Kenneth
Kakuru; and the respondent by Mr. Muhwezi. When the hearing
of the appeal
commenced, Mr. Muhwezi sought and obtained leave of the court to address the
Court not-withstanding his having filed
under rule 93(1) and 2(b) of the Rules
of this Court what was called: "The Respondent's statement in opposition to
the Appeal." Thereafter, Mr. Muhwezi made a preliminary objection against
the validity of the record of appeal on the grounds, first, that subsequent
to
the record of appeal having been filed, new pages were inserted into the record
replacing certain pages in the original record
which had contained defects. The
corrected pages were not filed as a supplementary record, but were merely placed
in the record of
appeal. The second ground of objection was that, contrary to
the directive contained in the Registrar's letter of 31-10-2001, addressed
to
both the advocates for the appellant and for the respondent, the appellant's
advocates submitted the corrected pages of the record
later than the date of
January 2002, by which, according to the Registrar's letter, the corrected pages
should have been submitted
to the Registry.
Mr. Kakuru, the appellant's
learned counsel opposed the preliminary objection. He submitted that rule 85(4)
of the Rules of the Court,
allows lodgement of a supplementary record to cure
defects in the original record of appeal. There is no time limit in which to do
so. Counsel contended that defects in a record can also be corrected by
amendment. The learned counsel contended that in the instant
case, the nature of
the defects in the record was that certain pages were faint. The defects were
corrected and were included in
the record of appeal which were, thereafter,
served on the respondent's counsel. He prayed that the Court should overrule the
objection.
The Registrar's letter of 31-10-2001, written to the advocates
for the appellant and the respondent, pointed out two types of defects
in the
record of appeal which had been lodged at the Registry of the Court. The first
was that there were some gaps in the numbering
of pages of the record. The
second was that copies of the documentary exhibits admitted in evidence at the
trial were not available
in the record of appeal. Due to the defects the
Registrar pointed out it was impossible for the court to proceed with the
hearing
of the appeal, which had been cause-listed for 01-11-2001. Consequently,
the Registrar directed the parties to have the record corrected
by January,
2002, before the appeal could be listed again for hearing.
The
corrections indicated by the Registrar as necessary could be introduced in the
record by a supplementary record under rule 85(3)
and (4) of the Court's Rules.
These rules provide as follows:
"(3) The appellant may, at any time, lodge in the Registry a supplementary
record of appeal, and shall as soon as practicable after
that serve copies of it
on every respondent who has complied with the requirements of rule
75.
(4) A supplementary record may be lodged to cure defects in the original
record of appeal due to want of compliance with rule 82."
In the instant case, the appellant's advocates complied with the provisions
of these rules except that the new pages and the copies
of exhibits inserted in
the record of appeal were not labeled "supplementary record." For these
reasons the Court over-ruled the respondent's preliminary objections, and
ordered the hearing of the appeal to proceed.
However, before that could happen Mr. Muhwezi, the respondent's learned
counsel, applied to the Court for, and was granted leave,
to file a written
supplementary statement in opposition to the appeal. In contrast, the
appellant's learned counsel, Mr. Kakuru,
made oral submissions without filing a
written submission. This, he was entitled to do.
The memorandum of
appeal contains five grounds of appeal. The appellant's learned counsel first
argued ground three, followed by grounds
one and two, which he argued together.
He then argued grounds four and five, also together. I shall consider the
grounds of appeal
in the same order. Ground three of the appeal is that the
learned Justices of Appeal erred in law and in fact when they refused to
adjudicate on the issue whether the appellant was properly sued or not. If they
had done so, they would have found for the appellant
Under this ground, Mr.
Kakuru submitted that the plaint did not indicate whether the respondent's suit
was based on contract or on
tort, which ought to have been done. This was
important because remedies sought by the suit depended on the cause of action.
The
issue which came out at the trial of the suit was ownership of the suit
vehicle. The appellant's case as pleaded in the written statement
of defence was
that the suit vehicle had been sold to the appellant's husband, Paul Bitarabeho,
who paid the purchase price in full.
The issue at the trial having been whether
or not the suit vehicle belonged to the respondent or not, it was necessary to
look at
the sale agreement between the respondent and the appellant's husband,
and to interpret that contract for purposes of deciding whether
or not the
appellant was the right party to have been sued.
This was a point of law
which, the learned counsel said, he raised for the first time in the Court of
Appeal, but had not been raised
at the trial. The Court of Appeal rejected to
consider this point, wrongly, the learned counsel contended. The learned counsel
relied
on what Kanyeihamba, JSC, said in Paul Ssemwogerere and Z. Olum -vs-
Attorney General, Constitutional Appeal No. 1 of 2000 (SCU) (unreported) on
page 5 of his judgment to the effect that points of law can be raised for the
first time on an appeal. In the instant
case, the learned counsel contended that
the Court of Appeal should have considered whether the appellant was a proper
party to the
suit or not by looking at the evidence relevant to that issue. Had
it done so, it would have found that the appellant was a wrong
party to the
suit. The learned Counsel however conceded that as Berko JA said in his lead
judgment, with which the other members
of the Court agreed, the Court of Appeal
had a discretion whether or not to consider this point of law, but it declined
to do so.
This was an improper exercise of its discretion, learned counsel
contended. In the event, the Court of Appeal erred in fact and in
law in not
adjudicating on the issue of whether or not the appellant was the correct
defendant in the suit.
In his written submission in opposition to this
ground of appeal, the respondent's learned counsel referred to the arguments of
the
appellant's learned counsel before the Court of Appeal on ground one before
that court, to which the present ground three is similar.
Learned counsel also
referred to his own submission before the Court of Appeal on the same issue.
The learned counsel reiterated that the appellant did not plead in her
written statement of defence that she was a wrong party. The
issue of the
appellant's locus standi was never raised in the trial court. To raise it on
first appeal for the first time, as the
appellant did, required fresh evidence
under order 29(b) of the Court of Appeal Rules. The appellant's learned counsel
did not apply
to adduce fresh evidence. As a result, he should not now be heard
to complain against the Court of Appeal under ground three of this
appeal. In
any case, the issue of locus standi was ably addressed in the lead judgment of
Berko, JA, and resolved in favour of the
respondent. The learned counsel
supported the Court of Appeal's finding on the complaint now made in ground
three. He urged us to
uphold that finding.
The appellant's ground one of
her appeal to the Court of Appeal was in the following words:
"(1) That the learned trial judge erred in law and fact in not addressing
the issue of locus standi of the defendant and in not finding
that the plaintiff
had brought the suit against the wrong party."
The issue raised in that ground of appeal never figured in the trial court.
It was raised for the first time in the Court of Appeal.
To my mind, it was not
purely an issue of law. It was an issue of mixed law and fact which required the
appellant to apply to the
Court of Appeal to adduce additional evidence, but she
did not. The decided cases to which Berko, JA, referred were, therefore,
relevant.
They are: In Tasmania (1890) 15, A.C. 223, at 225; In
Exparte Flinth (1882) 19.ch.D 419 at 429; and North Staffordshire Railway
Co. -vs- Edge (1920) A.C.254 at 270. One common issue considered in all the
three cases is whether, on appeal, a party can be permitted to raise a matter
which it did
not raise in the trial court. What Lord Buckmaster said in North
Staffordshire Railway Co. -vs- Edge (supra) at page 270, comes out with a
very clear answer to that issue, which I find is of great persuasive value, and
is applicable
to the instant case. He said:
"Upon the question as to whether appellants should be permitted to raise here a contention not raised in the court of first instance I find myself most closely in accordance with the views just stated by Lord Atkinson. Such a matter is not to be determined by mere consideration of the convenience of this House, but by considering whether it is possible to be assured that full justice can be done to the parties by permitting new points of controversy to be discussed. If there be further matters of fact that could possibly and properly influence the judgment to be formed, and one party has omitted to take steps to place such matters before the court because the defined issues did not render it material, leave to raise a new issue dependent on such facts at a late stage ought to be refused, and this is settled practice."
After referring to the authorities to which I have just referred, Berko, JA.
Said:
"It is not possible to consider this point in isolation without reference
to the pleadings and the argument of defendant's counsel
in the court below.
There is no doubt that it was not within the pleadings. It was not made an issue
at the trial. The plaintiffs
case proceeded before the trial fudge upon the
footing that the late Bitarabeho hired his vehicle and made a down payment of
Shs.
11 million; that the late Bitarabeho died before he made another down
payment and that the defendant took possession of the vehicle
after the death of
her husband and has refused to hand it over to him. It is clear from paragraph 3
of the plaint that the claim
is against the defendant in her individual capacity
and not in her capacity as the administrator of her late husband's estate.
Neither
is it against the estate of her late husband. The submission of counsel
for the defendant in the lower court did not remotely allude
to the fact that
she was a wrong party to the suit.
A new point raised for the first time in a court of last resort ought not
to be entertained unless the court is satisfied that the
evidence upon which
they are asked to decide establishes beyond doubt that the facts, if fully
investigated, would have supported
the new plea. In the present case, I am far
from satisfied that this court has before it all the facts bearing on the
question of
law now raised for the first time, which might have been elicited in
the lower court had the matter been there in issue. Had the
matter been properly
pleaded the possibility of the defendant being the administrator or not of her
husband's estate would have been
investigated. If she was an administrator of
the estate of her late husband, the inventory of the estate filed in court would
have
been scrutinized. Further this court would have had the benefit of a
considered finding of facts by the learned trial judge.
For all these reasons I am of the opinion that the point now sought to be
argued by Mr. Kakuru is not one which is open to him to
argue. There is no merit
in ground one and it is dismissed."
In my opinion, the conclusion of Berko, JA, on this point in the passage of
his judgment I have just referred to cannot be faulted.
The instant case is
distinguishable from cases such as Constitutional Appeal No. 1 of 2000
(supra) and Ngakwila -vs- Lalami (1972) E.A. 182, on which the
appellant's counsel relied for his submission. In the instant case it was
necessary to adduce evidence bearing on the
point of law raised in the Court of
Appeal. It was necessary to adduce evidence relating, for instance, to whether
the appellant
was the administrator of the estate of her late husband; whether
the suit vehicle was actually sold to the late Paul Bitarabeho and,
therefore,
it formed part of his estate after his death. Such evidence was neither adduced
at the trial of the suit, nor by means
of additional evidence with leave of
court at the hearing of the first appeal; nor had the relevant facts been
pleaded in the written
statement of defence. In the circumstances, ground three
of the appeal should fail.
The appellant's learned counsel next argued
grounds one and two together, and then grounds four and five, also together. The
first
two of the grounds are that:
1. The learned Justices of Appeal erred in law and in fact by failing to properly evaluate the evidence in the case, as a result reached a wrong decision. 2. The learned Justices of Appeal erred in law and in fact when reaching their decision they erroneously found that there was no contract of sale concluded between the late Paul Bitarabeho and the respondent.
I shall also consider grounds one and two together since they both relate to
the issue of whether or not there was a contract of sale
between the appellant's
late husband, Paul Bitarabeho, and the respondent.
Mr. Kakuru's
submission relevant to grounds one and two of the appeal was very brief. The
learned counsel said that the basis of the
complaints in these grounds is that
the respondent sold the suit vehicle to the appellant's late husband. There was
clearly a contract
of sale which was not terminated. The respondent as the
seller should, therefore, have claimed the balance of the purchase price.
The respondent's written submissions in opposition to these grounds are to
the effect that, first, the learned Justices of Appeal
properly evaluated the
evidence on record, considered the pleadings and made the right decision that
the respondent was entitled
to claim the suit vehicle from the appellant. The
appellant cannot on second appeal adduce any better or fresh evidence to make
good
the weakness in the appellant's case both in the trial court and in the
Court of Appeal. Second, that the learned Justices of Appeal
properly and ably
addressed the question of contract between the respondent and the late Paul
Bitarabeho and came to the right holding
that exhbit P.3 was a contract of hire
between them. The learned counsel contended that the evidence of the appellant
that the late
Paul Bitarabeho had purchased the suit vehicle from the respondent
was purely hearsay, since the appellant was neither a party to
the transaction
nor was present when negotiations took place.
In his oral submission,
which he made with leave of the Court, Mr. Muhwezi added that the appellant was
not competent to represent
her husband's estate. Further, she did not deny being
the right party in her w.s.d. she also failed to prove that shs. 5 million
was
paid to the respondent in addition to the shs. 11 million. She further alleged
that annexture "D" to the plaint was fictitious. Annexture "D" is
a copy of the paying-in slip by which a cheque of shs. 11 million was paid
respondent's bank account at U.C.B. Nkrumah Road Branch.
In the circumstances,
learned counsel concluded that the trial court and the Court of Appeal rightly
rejected the appellant's evidence
at the trial.
The complaints in grounds
one and two of the memorandum of appeal before us are similar to those made
against the decision of the
learned trial judge in grounds two and three of the
appellant's memorandum of appeal to the Court of Appeal.
In my opinion,
there is no merit in grounds one and two of the appeal before us. Berko, JA,
properly evaluated the relevant evidence
and concluded, rightly in my view, that
there was only a contract of hire of the suit vehicle between the respondent and
the late
Paul Bitarabeho. Although he did not make a specific finding that there
was no contract of sale, such a finding, in my view, was
implied in the finding
he made.
This is what the learned Justice of Appeal said in his
re-evaluation of the relevant evidence, and the finding thereon:
"The evidence on the point is really one sided. As Mr. Kakuru rightly
conceded, the defendant was not present when the negotiations
between the
plaintiff and her late husband took place. Most of her evidence on the matter
was hear-say and was correctly rejected
by the trial judge. Be that as it may,
the evidence on record clearly shows that Paulo Bitarabeho was interested in the
purchase
of the vehicle if he could persuade his wife, the defendant, to sell
their old pajero. That would have enabled him to raise the purchase
price. That
did not materialize because the defendant refused to consent. As a result, Paulo
Bitarabeho was unable to raise the purchase
price. As he had been using the
vehicle for sometime, he agreed to hire it. In my view, Exhibit p.3 was a
contract of hire. I am
unable to agree with Mr. Kakuru that Exhibit p.3 was a
mere authority to Paulo Bitarabeho to use the vehicle before he could pay
the
tax on it. The language of the document is unambiguous and does not admit of the
strained interpretation Mr. Kakuru is putting
on it."
This is consistent with the finding of the learned trial judge to the effect
that while exhibit p.3 was a genuine agreement of hire
between the respondent
and the appellant's late husband, exhibit p.4 was not a contract of sale between
the two men. It was a maneuver
on the part of the appellant to have the suit
vehicle transferred in her names. The learned trial judge further said:
"It would appear that to me that she was not well informed by her husband
about his dealings with Kakonge in connection with the purchase
and or rental
charge of the said vehicle. DW1 knew little about what transpired between her
late husband and the plaintiff or if
she knew what was going on, she merely
wanted to take away the vehicle without any colour of right
whatsoever.
And to crown it all in her application for letters of
administration the suit vehicle did form part of the estate of the late
Bitarabeho.
This strengthens my belief that DW1 knew that the vehicle was never
sold to her husband: I do not believe her when she testified
that she could not
transfer the vehicle in her names because she was told to wait when taxes would
diminish. That is not supported
by the evidence on record."
I agree with the concurrent findings of the lower two courts and my view is
that grounds one and two of the appeal should fail.
I shall next consider the last two grounds of appeal together since they
criticize the Court of Appeal's award of damages to the respondent.
They
are:
"4. The learned Justices of Appeal erred in law and in fact whey they failed to find that the appellant could not be sued in contract thereby reaching a wrong conclusion as to award of damages.
5. The learned Justices of Appeal erred in law and in fact by upholding the trial judge's award of special damages."
On the complaints in these grounds, the appellant's learned counsel submitted
that having found that the respondent's suit was based
on tort the learned trial
judge should not have awarded, and the Court of Appeal should not have upheld
the award of, special damages
as if the cause of action was a breach of
contract. The award of damages should have been one of general damages in
detinue.
In opposition the respondent's written submission is to the
effect that ground four of the appeal should be struck out for being incompetent
because the learned trial judge did not award damages based on a breach of
contract by the appellant, nor did the Court of Appeal
uphold the award of
damages on that basis. On the contrary, the trial court awarded damages of Shs.
50,000= per day because the appellant
wrongly detained the suit vehicle which
the late Bitarabeho had hired from the respondent. The learned trial judge and
the Court
of Appeal considered the respondent's evidence of special damages and
were satisfied in favour of the respondent. Authorities were
cited and there was
proof that the respondent lost Shs. 50,000= per day when the appellant
wrongfully retained the suit vehicle which
the respondent had hired to the late
Paul Bitarabeho.
With respect, I find no merit in the respondent's submission that ground 4 is incompetent and should be struck out.
It is common ground in the instant case that the respondent's suit was
founded on the tort of detinue which is the wrongful retention
of the possession
of a chattel. The basis of the tort was that the suit vehicle was hired by the
respondent to the appellant's late
husband when he was still alive. After his
death the appellant retained the suit vehicle and refused to return it to the
respondent
despite his demands for its return to him.
The appellant
refused to return the suit vehicle on the allegations that it had been bought
outright by her late husband and that
it formed part of the estate of the
deceased husband. She also refused to pay any rental charges of Shs. 50,000= per
day, the advance
deposit for rental payments made by the deceased having been
exhausted by 31-10-1990. In the circumstances, the respondent prayed
for the
following remedies in his suit:
1. Declaration that the suit vehicle is the property of the plaintiff. 2. The defendant surrenders the suit vehicle to the plaintiff immediately on delivery of the judgment. 3. The defendant pays to the plaintiff special damages of Shs. 50,000= per day from 31-10-1990 to the date of judgment and interest from the date of judgment until payment in full. 4. General damages for the defendant's unlawful action, inconvenience and damage caused to the plaintiff and the suit vehicle. 5. Costs of the suit.
The learned trial judge granted all the remedies prayed for by the respondent
which I have reproduced above. In his award of damages,
the learned trial judge
said:
"(c) The plaintiff had lost daily income at the rate of Shs. 50,000= as
per exhibit p.3 and paragraph 5 of the plaint. This was immediately
on the
demise of the late Bitarabeho on 29-10-90. The plaintiff is awarded special
damages of Shs. 50,000= per day which has been
specifically pleaded and proved
(KCC -vs- Nakamya) from 31-10-90 to 31-10-94, for four years only because of the
imponderable break
down of the vehicle and etcetera. In making this award, the
court is of the view that the vehicle was brand new when the late Bitarabeho
started using it. He was with the vehicle for only 7 months when he passed away.
Thereafter, it was retained by the defendant. The
plaintiff would be entitled
for the rents not from 31-10-90, up to-date. That would rather be on the high
scale. The court considered
the imponderables and judiciously permitted rental
charges for 4 years as explained above.
(d) The plaintiff had demanded general damages of ten million shillings as
per submission of Mr. Muhwezi for the unlawful detention
of the said vehicle.
The inconvenience and embarrassment on the part of the plaintiff for the most
(sic.) use of the vehicle for
these seven years. However, this figure is
rather on the high scale, general damages of about Shillings 4 million
would
properly compensate the plaintiff.
(e) The plaintiff would be awarded interest at court rates on the decretal
sum from the date of delivery of this judgment till payment
in
full."
The Court of Appeal did not disturb the award of special and general damages
made by the learned trial judge, although it criticized
the latter for awarding
special damages from 31-10 -90 to 31-10-94 in view of the fact that the
appellant detained the suit vehicle
beyond that period. In his lead judgment
Berko, JA, said:
"The judge awarded special damages of Shs. 50,000= per day from 31-10-90 to 31-10-94. I do not know why he made the award up to 31-10-94 when the vehicle is still with the defendant. The rule is that, in detinue, the value of the goods claimed ought to be assessed at the date of judgment or verdict and not the date of the defendant's refusal to return them: Rosenthal -vs-Alderton (1946) KB 374. Where the defendant has detained and used a chattel of the plaintiff which the plaintiff, as part of his business, hires out to users, the measure of damages will include a reasonable sum for hire of that chattel during the period of detention which may be up to the date of judgment, or up to the time when the goods were returned, and not only up to the date of demand for its return: Strand Electric and Engineering Co. Ltd. -vs- Bristord Entertainments Ltd. (1952) 2 QB 246.
In the present case, the defendant detained the vehicle until judgment. It
has not been returned in pursuance of the judgment.
In these circumstances, the hiring charges runs up to the date when it is
returned. There has, however, been no cross-appeal. Therefore,
I will not say
anything more about the award."
The Court of Appeal, nevertheless, upheld the decision and orders of the
trial court and dismissed the appellant's appeal in that
court.
I agree
with Berko, JA, that in an action founded on detinue, the value of the goods
detained is assessed at the date of the judgment
in favour of the plaintiff and
not at the date of the defendant's refusal to return the goods. This is so
because the plaintiff in
detinue does not abandon his property in the goods.
Cause of action arises from the defendant's refusal to return the goods on
demand.
The essence of detinue is that the plaintiff maintains and asserts his
property in the goods up to the date of judgment. This is
what the respondent
did in the instant case. Further, where the defendant detains the goods which
the plaintiff normally lets on
hire, the measure of damages will include a
reasonable sum for hiring charges during the period of detention. See
Windfield on Tort 6th Edition, page 414. It follows, in my
view, that in the instant case, the respondent is entitled to general damages
for depreciation of the suit vehicle
during the period it was detained by the
appellant. He is also entitled to some reasonable charges for hire for the same
period.
Grounds four and five of the appeal should, therefore, succeed. The appeal
should partially succeed.
The respondent's unchallenged evidence at the
trial of the suit was that the value of the suit vehicle in 1990 was between 25
and
30 million shillings. This was at about the time when the respondent hired
the suit vehicle to the late Bitarabeho. In his judgment,
delivered on
25-09-1997, about seven years later, the learned trial judge did not assess the
value of the suit vehicle at that time,
but he referred to the same value given
by the respondent in his testimony. In my opinion that is the value I have to
bear in mind
in assessing the damages to be awarded to the respondent. Another
factor to take into account is the fact that the appellant had
retained the suit
vehicle for about seven years until it was returned to the appellant on
29-09-1997 by M/s. Kitavujja General Agencies
Auctioneers and Court Bailiffs as
a result of an execution order by the High Court The third and fourth factors to
take into consideration
are that the suit vehicle was on hire to the appellant's
late husband before his death at the rate of Shs.
50,000= per day, and that thereafter she refused to pay any hire charges
throughout the period of her retention of the suit vehicle.
All these factors,
in my view, form the basis of assessing the general damages to which the
respondent is entitled. I would assess
the general damages together with some
reasonable hire charges at Shs. 50m/= .
In the result, I would set aside
the orders of the Courts below, except the order for surrender of the suit
vehicle to the respondent,
and substitute them with orders that:
a) The respondent be and is hereby awarded Shs. 50,000,000= as general damages which the appellant should pay to him with interest at the court rate from the date of judgment of the trial court till payment in full; b) The respondent should have four fifths of the cost of this appeal and of the costs in the courts below.
JUDGEMENT OF ODOKI, CJ.
I agree with the judgment of Oder JSC which I have had the advantage of
reading in draft. I concur in the orders he has proposed.
I only wish to add a
few comments.
The point whether the respondent was the wrong party to the suit ought to
have been raised at the trial. I agree that it was not purely
a question of law
which could have been raised on appeal. It was a question of both mixed law and
fact as evidence was needed to
be adduced to establish the capacity in which the
appellant was being sued. The Court of Appeal was therefore justified in
refusing
to entertain the point at that stage.
As regards the concurrent findings of the two lower courts that there was no
contract of sale between the respondent and the appellant's
husband, a true
construction of the agreement in Exh. P.3 and the subsequent conduct of the
parties justified the conclusion of the
two courts that the contract was one for
the hire of the vehicle. Exhibit P.3 dated 2nd April 1990 stated as
follows:
"We the undersigned have authorized Mr. Paulo Bitabareho of Modern Times
and Carpet Centre Kampala to rent out vehicle UPX 135 Mitsubishi
Pajero Engine
Number 4D 55 Oct. 0073 Chassis No. CLO 49VLJ 400 01 AT (50,000/=) fifty thousand
shillings per day. He paid deposit
of Eleven million shillings 11,000,000/=.
Subsequent rental payment will be made six monthly.
Dr. Edward B. Kakonge Associate Professor, Z. Kakonge
Dr Mrs
Zallah J. B. Kakonge
Witnessed by Paul Bitabereho Christine Mary Kakonge Mutebi
Moses."
The award of special damages for breach of contract was therefore wrong since
the action was based on the tort of detinue. The Court
of Appeal erred in not
setting aside the award of special damages. The proper award should have been
for general damages for wrongful
retention of the vehicle. I agree with Oder JSC
that a sum of Shs. 50 million as general damages would be adequate compensation
to
the respondent.
As the other members of the Court also agree, this appeal partially succeeds with orders as proposed by Oder JSC.
JUDGMENT OF TSEKOOKO, JSC.
I have had the benefit of reading in draft the judgment prepared by my learned brother, the Hon. Mr. Justice Oder, JSC and I agree with his conclusions and the orders he has proposed.
JUDGMENT OF KAROKORA, JSC.
I have read in draft the judgment prepared by my learned brother, Oder, JSC
and I do agree with the facts as set out in his judgment
and the conclusion he
has reached. I only wish to add that considering the evidence as a whole, I
think that this was a case where
the respondent on the facts, claimed the return
of his motor vehicle and damages for its detention.
In my view, the
respondent's suit for the return of the motor vehicle and damages for its
wrongful detention was rightly filed in
view of the decisions in Hymas V
Ogden [1905] 1KB 246 and General & Finance Facilities Ltd V Cooks
Cars (Romford) Ltd 1963 2 ALL ER 314
However, I think that the claim for special damages at the rate of shs.50,000/= per day calculated from 31/10/90 to 31/10/94 as ordered by the
lower courts would unjustifiably enrich the respondent, when the appellant is
at the same time being ordered to return the vehicle
to the respondent.
Therefore in the interest of justice, an award of general damages for the
wrongful detention of the vehicle as
proposed by Oder JSC is
appropriate.
In the result, this appeal partially succeeds. I accordingly adopt orders as proposed by Oder JSC.
JUDGMENT OF MULENGA, JSC
I had advantage of reading in draft the judgment prepared by Oder JSC. I concur and have nothing to add.
Dated at Mengo this 15th day of July 2003
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