Asimwe v Attorney General (Civil Suit 1094 of 1988) [1992] UGHC 53 (18 November 1992)

Full Case Text

The Herr. Mr. Justice Egonde-Mende

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

## CIVIL SUIT NO. 1094 OF 1988

JOYCE ANNE ASIMWE SUING BY ğ PLAINTIFF. . . . . . . . WILSON KASTAYA (Next Frien!) }

**VERSUS**

ATTORNEY GENERAL .......... DEFENDANT. BEFORE:- The Honourable Mr. Justice J. W. N. Tsekooko

## J U D G M E N T

In this suit the plaintiff is a minor. She instituted the suit by her father, Wilson Kashaya, as the next friend. The defendant is sued in his representative capacity by virtue of the provisions or the Government Proceedings Act.

The plaint claims for the value of her motor vehicle a Toyeta Hiace Minibus allegedly wrongfully taken by NRA soldiers on 2nd December, 1986 from the next friend; December, 1986 from the next friend; damages and interest.

Four issues were framed at the start of the hearing. These age: 1. Whether the plaintiff is the owner of motor vehicle Registra. $\mathbf{v} \cdot \mathbf{v}$ tion No. UVA 207.

2. Whether the vehicle was lost through acts of NRA soldie $\mathcal{L}_{\mathcal{M}}(\mathcal{L}_{\mathcal{M}})$ 3. Whether NRA soldiers were acting within the ecope is thein

employment.

4. What damages if any is the plaintiff entitled to.

Wilson Kashaya (PW1), Ali Bukenya (PW2) and James Mwesigwa (PW3) testified on behalf of the plaintiff. No witness was called the defendant - The Principal State Attorney expressed difficulty in getting witnesses to attend court.

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Although the plaintiff is the registered owner, it is her friend. father and next / (PW1) who was managing the vehicle.

According to him on 2nd December, 1986 he took the vehicle for the repair of brake linings at his usual place of repair on pavement on Nakivubo Road near Shauri Yako Market. Two people wearing greenish gum boots confronted him. In his opinion the The two arrested him and boots were those worn by soldiers. forcebly took him at gun point to Republic House. But at Nakivubo he had not been informed of the reason for the arrest. He had left the vehicle at the scene. He was first detained at Republic House (army Headquarters) reception under the guard of two soldiers. In the evening he was transferred to the quarter guard where he was detained till 19th December, 1986, He on 2nd December, 1986 had surrendered the keys of the vehicle which have never been returned to him. On 19th December, 1986 he together with other persons were removed to Kampala Central Police Station where he was again detained till 22nd December, 1986 when he was released after police told him he had been taken to police on allegations of pobbery. He was eventually left free without charge. He eventually resovered damages against Government for wrongful arrest and detention. He claimed to have sighted the vehicle at Bugolobi stage during February, 1987. The vehicle bore NRA numbers. He reported this to CID Headquarters. The vehicle has never been recovered since. 5 🟘 . He bought the vehicle for Shs. $2M/=$ in 1984. He registered it in the name of the plaintiff his daughter who was born in $1982$ .

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Thus in 1984 she must have been aged 2 years.

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The evidence of this witness about what happened from 2nd December, 1986 to 22nd December, 1986 or indeed till February, 1987 has not been contradicted. On 19th June, 1991 Mukasa. Kikonyogo, J, made an order dispensing with attendance of plaintiff at the request of her counsel. Defence counsel did not object to that request. I saw no need to have her as a witness. $...13$

#### ISSUE NO. 1

Was the plaintiff the owner of motor vehicle Registration No. UVA 207?. Mr. Kateeba learned counsel for the plaintiff submitted that the plaintiff is the owner and he relied, inter alia, on Exh. P.1 (Registration Card) and on the evidence of PW1. On the other hand Ms. Arach, the learned Principal State Attorney submitted that the plaintiff was not owner. I had actually earlier drawn the attention of Mr. Kateeba to Section 10 (2) of the Traffic And Road Safety Act, 1970 which states: -

"No person under the age of eithbeen years shall be registered as the owner of a motor vehicle, trailor or engineering plant"

Mr. Kateeba submitted that although sub-section 2 of S, 10 prohibits registration of vehicle in the name of a person below 18 years, a person below the age of 18 years can own a vehicle as ownership is not vitiated. He referred to the definition of owner under Section 186 (1) of the Act.

The learned Principal State Attorney submitted, soprectly in any view, that the registration of the plaintiff as owner of the suit vehicle is prohibited by S. 10 $(2)$ of the Aet since she was below the age of 18 years when she was registered as owner. Again she correctly submitted that S.8 of the same Act prohibits possession of vehicle unless it is registered under the Act.

The crux of the matter of the issue number one is therefore whether the plaintiff is the owner of the vehicle in spice of the provisions of Section 10 (2) as submitted by her counsel.

The word "owner" for our purposes is defined in Section 106 (1) of the Act in two ways. The defination under (a) states:

Owner ....................................

"(a) In the case of a vehicle which is for the time being registered under the Act and is not being used under a hiring agreement ...... means the person appearing as the owner of the vehicle in the register kept by the Registrar under this Act". $\frac{1}{2}$

Act. The first portions of form 1 which essentially applies to new registration states:-

"I hereby declare that I am entitled to the possession of the motor vehicle described below, and apply to be registered as the owner thereof -

1. Full name of owner

2. Owner's

$(a)$ residence

(b) Postal address"

I take "entitled to possession" to mean having acquired it lawfully.

Clearly the form does not indicate that the applicant should state his/her age.

Again Section 11 (1) of the Act dates:-

"A licensing officer, shall, prior to the registration of a motor vehicle verify the particulars in the application for registration and shall satisfy himself that,

(a) (b) (c) and (d)". These relate to the fitness, lawful exportation, importation and payment of taxes and duties. Upon being satisfied, the licensing officer is enjoined to issue to the applicant the registration Card (in this case Exh. P.1) Appayently the licensing officer need not verify the age of the applicant. Since the suit vehicle was sold and transferred to the plantiff. the provisions of S. 50 (1) and (4) apply in which ease Form III of the second Schedule (Notification of Transfer of vehicle) applies. Like Form I, this form III doesn't state the age of the transferor nor of the transferee. Moreover that form appears $\mathcal{L} = \mathcal{L}$ to suggest that transferee could have a nominee registered on. his behalf. PW1 could have been registered on behalf of the plaintiff

It appears to me that the plaintiff could not be deemed to

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have committed an offence under S. 52 (3) of the Act. Neither do I think that either the plaintiff or his father committed any offence under the provisions of Section 185 (1) or 185 (3) of the same Act. I am making these conclusions because initially I held the view that the provisions of Sections 8 and 11 (2) could by drawing analogy between them and Sections 2 and 4 of the Land Transfer Act result in declaring the registration of the plaintiff void abinitio. $My$ opinion is now that the analogy is inappropriate. In my opinion prohibition of registration under Section 10 (2) if violated does not lead to fatal consequences. I have considered the prohibition under both subsection (2) and Subsection (3) of the same Section 10. I can't see the rational distinction between permitting a person suffering from any legal disability getting registration through the agency of the power of attorney and a person aged below 18 years having had the vehicle registered in her name and having the vehicle managed as in this case by her fathe, Probably this explains the existence of provision for punishing a parent or ward of such child under S. 185 (3).

It appears to me that there is a locuma with regard to verification of age of owners of vehicles. Furthermore it appears to me that a licensing officer whould be the person to ensure that persons applying for registration as owner of vehicle is aged above 18 years (or in the case of S. 10 (3) does not suffer from any legal disability). Thus there is no serious consequence flowing from violation of Subsections (2) and (3) of Section 10 such as forgeiture of the registered vehicle. I do not say that the registration of the plaintiff as owner of the vehicle is void abinitio. It appears to me most likely to be merely viodeble/and if the State pould have taken stags under the relevant provisions of the Twalfie and Road Safety Act, 1970 or the Fraffic Regulations, if it so wished.

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to deal with deregistration. But that of course is now history.

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It is certainly odd that the plaintiff was registered as owner of the vehicle ate- that early age of 2 years in 198^. But that was the choice cf the father (PW1). It in effect was a donation to her. The state condoned it, whether inadvertentily or otherwise. Indeed the defendant was put on notice on the day it was served with the^plaint on 10th November, 1988 that the plaintiff was a minor. The defendant at that stage apparently didn't bother to seek to establish whether the plaintiff was capable of owning a vehicle under the law to entitle her to file this suit.

•I have considered all possible aspects .of public policy that 'militate ' would -• against ownership of the vehicle by the plaintiff i\* the context of this suit. I find none which is sound enough#

Because of the foregoing discussions, I hold that the plai\* ntiff is the owner of the suit vehicle. That is my answer to '• the first issue.

# 4, ISSES NO. 2 NAD NO. 3

| I have found the second and third issues connected. is therefore convenient to consider them together.

Learned counsel for the plaintiff submitted that as the evidence of PW1 shows that the two persons who arrested PW1 wore **greenish** gum.boots similar to boots worn by NRA soldiers at the time, there\* fore-those two people were agents of the defendant\* **I think.**that such evidence is not conclusive. I agree with the **Principal** State Attorney that such evidence cannot be conclusive.

I think that Mr. Kateeba was on firm ground in his **contention** that the chain of evidence from arrest up to the detention **o.f PWf** lead^ to the inference that the two persona were NRA soldiers oj connected with the army. According to PW1, his **arresters** gaid PW1 was needed at Army Headquarters. Immediately a^teir

Republic House the two men drove PW1 to the Army Headquarters at ./ He wqs first detained under guard at the receiption. He was later detained within the same Army Headquarters from 2nd December, 1986 till 19th December, 1986 when he was transferred officially to Central Police Station, Kampala on allegation of Robbery. There he was detained for some more days before he was released. All this evidence has neither been contradicated nor discredicted in any manner. In fact he subsequently successfully instituted HCCS No. 722/8? against the defendant for false imprisonment and was awarded damages.

Again when PW2 was arrested and removed from Nakivubo on , 2nd December, 1986, the suit vehicle was left unattended, **During** the arrest, the two people alluded to the vehicle, . PW1 was made . to surrender vehicle keys while he was under detention at the 'Ayny Headquarters. The keys were never returned to him when he was transferred to Central Police Station or at any time **thereafter.**

On the evidence available I entertain no doubt that the vehicle wa£ lost through the acts of NRA soldeirs. Further the \*hain of events from the moment of PW1's arrest on 2nd December\* **19H** 19th December, 1986 indisputably lead to the irresjstable ooneju\* sion.that the soldiers were acting within the scope of theiy employe ment. The defendant is therefore liable within the principles emunciated in Muwonge Vs. Attorney - General /196?7 EA Joseph . Lukwago Vs. Attorney - General (HCCS No. 1156 of 1983); George Brown Turyamureeba Vs. Attorney - General (HCCS No, 4^6 .0, and J. S. S. P. O'bwangammi Vs. Attorney - General (HCCS Jjot j.88 of **at** some **length** l^oo. In Obwanganoi(s case I attempted to review t cases in which vicarious liability is in issnie,

> and **thdefcf** I therefore answer affirmatively issu<? 0 two

## b-' .? . ISSUE NO. 4

**af**f^he Once answers to the three issues are in the

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plaintiff is entitled to some reliefs.

Mr. Kateeba cited the cases of Uganda Commercial Bank Vs. Waswa /T9827 1ICB; Turyamureeba \*'s case (supra); Okello Vs.. Attorney General (HCCS No. 371/87) and Oryema Vs. UCC and submitted that on the.basis of these cases the plaintiff should be awarded 3/5 of the amount put forward by PW2, i.e. . Shs. 19»5M/=, as the value of the. suit vehicle. That would work out to Shs. 11,700,000/=. On the other hand Ms. Arach made the point with which I am in agreement that the value of the vehicle was not properly proved. She further submitted that the figures of Shs. 19.5M/= sh^ld be reduced to which would work out to be Shs. 4,875,000/=.

I actually pointed out to Mr. Kateeba during the **testimony** of PW2 that in all fairness to PW2, he was not the best **witness to** put a reliable value on the suit vehicle. He **merely Void's** •4a UDBS and has been working as accountant of sorts in a mo>o» dealer company for barely 3 years. According to PW2, he would place any value on'any vehicle after consideration of several factors. The most important of these factors for an old **vehicle** such as the one in issue was the opinion of a mechanic\* **Waswa\****3* ease and Turyamureeba\*s case illustrate that some expert **should** give the value' of the lost vehicle for which a claim has bee< made. I made similar observations in the case of O'bwangamoJ, The suit vehicle was 15 years old at the time of loss. **Its v^iiie** must have diminished-' in 1986.

In the circumstances of this case and considering all the evidence before me 1 accept the figure suggested by Ms^ **Araeh** •• 1. ' as reasonable. I therefore I award Shs. 4,875,000/\* as **the value** of the lost vehicle. The cases relied on by **Mr,** Kateeba **su>h** as \* J that of Turyamureeba, Waswa, Okello are in my view **distinguishable** on the facts.,

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On special damages, Mr. Kateeba submitted that I should award the plaintiff Shs. 1(5,805,000/= for a total of 2161 days. On the other hand Ms. Arach suggested an award of Shs. 5M/= submitting that there was no cogent evidence to support the amount put forward by Mr. Kateeba. Actually Mr. Kateeba eventually suggested Shs. 10M/= as lost income, having taken imponderables into account. There is uncontradicted evidence that the vehicle was used to generate income since it operated as a taxi. Though PW1 claimed that he had kept records of income and the same were lost when he was evicted, it hardly requires imagination to appreciate that most taxi cab operators in Uganda never keep records. But it is sufficient if I believe PW1 as I do that the vehicle operated as a taxi cab. I\*' t^hink that the figure of Shs. 10M/= as lost income between Jrd December, 1986 to 5th November, 1992 is reasonable in the circumstances. I award plaintiff Shs. 10,000,000/= as lost income.

On general damages, plaintiff's counsel asked me to awa>d »■ Shs. 3M/=. Ms. Arach submitted Shs. 500,000/= as reasonable.

Considering that I have awarded the plaintiff Shs. **4.875\*00®/=** as value of vehicle, Shs. 1.0,000,000/= as special damages,- I think that a sum of Shs. 500,000/= as general damages in the **circumstances** of. this case is a reasonable figure\* j award her that figuret

The plaintiff's counsel asked for interest. He did not suggest rate. Nor did the plaint.. In the circumstances I think that the total amount of Shs. 15,375,000/= will carry inte>est at the rate of 15% p.a. from date of this judgment till payment in **fulla** The defendant will pay the taxed costs of the suit to the plaintiff. Such taxed costs will carry interest at the rate of S% p.a. from date of judgment till payment in full. Judgment

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Costs of this application shall be in the cause.

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J. W. N. TSEKOOKO

$\frac{J \ U \ D \ G \ E}{18/11/1992}.$

$25/11/1992$ at 9.00 a.m. Mr. Kasule for applicant. Applicant absent. Respondent absent. Ssensonga court clerk. $\textsc{ Court } \text{rolling }$ delivered in chambers as open court in presence of

the above.

鱼

she in J. M. N. TSEKOUKO

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