Bitarabeho v Dr. Kakonge (Civil Appeal No. 4 of 1999) [1999] UGCA 69 (25 June 1999)

# THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA

### AT KAMPALA

### CIVIL APPEAL NO. 4 OF 1999.

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CORAM: HON. MR. JUSTICE G. M. OKELLO, J. A. HON. LADY JUSTICE A. E. MPAGI-BAHIGEINE, J. A.

HON. MR. JUSTICE J. P. BERKO, J. A.

CHRISTINE BITARABEHO......... DEFENDANT/APPELLANT

#### VERSUS

DR. EDWARD KAKONGE......... PLAINTIFF/RESPONDENT

#### JUDGMENT OF HON. J. P. BERKO, J. A.:

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This is an appeal from the judgment and orders of Mukanza J dated 25<sup>th</sup> September 1997 in a High Court Civil Suit No. 755 of 1992 in which he entered judgment in favour of the plaintiff and awarded him special and general damages plus cost of the Suit.

The Plaintiff, Dr. Edward Kakonge, brought an action against the defendant, Christine Bitarabeho, seeking for: 30

- that motor (a) declaration vehicle registration No. UPX 135 Mitsubishi Toyota is the property of the Plaintiff, - (b) An order that the defendant surrenders the said vehicle to the plaintiff and - (c) Special and general damages, interest and costs of the suit.

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The facts of the case may be summarised briefly as follows: The plaintiff and his wife imported into Uganda from Japan the Suit vehicle in 1990. The vehicle was registered in the names of the Plaintiff. The wife of the plaintiff, Dr.

Mrs. Zalah Kakonge, PW 3 endorsed the log book as a co-owner in order to protect her interest in the vehicle. As the plaintiff was on the staff of Makerere University the vehicle was imported tax free. The vehicle was valued between Shs. 25 and 30 millions.

The plaintiff and his wife agreed to sell the The Plaintiff approached Kampala City vehicle. Council to buy the vehicle but they could not $10$ agree on the price. It was in the course of negotiations with the City Council that the plaintiff told the husband of the Defendant, Paul Bitarabeho, who was a friend of the plaintiff, that he had a bland new Pajero he wanted to sell. The defendant's husband showed interest in the vehicle and agreed to buy it. They agreed on the purchase price of Shs. 25 million. It was agreed that Paulo Bitarabeho would make a down payment of Shs. 16 million as deposit, then pay Shs. 7 $20$ millions as taxes by the end of March 1990. That would leave a balance of Shs. 2 millions which could be paid to the plaintiff any time. The defendant's husband agreed to purchase the new Pajero on the understanding that he would be able to persuade his wife, the defendant, to sell his second hand Pajero. The plaintiff gave Paulo Bitarabeho a letter authorising him to drive the vehicle and he drove the vehicle away. He returned the following day to inform 30 the plaintiff that he had failed to persuade the defendant to sell their second hand Pajero and as a result he had failed to raise the purchase price and the taxes.

When Paulo Bitarabeho failed to raise the purchase price, he agreed to rent the vehicle. They entered into a rental agreement, Exh. P3, which was going to last for just one year. The rental per day was settled at Shs. $50,000/=$ . Paulo Bitarabeho paid Shs. 11 million in advance. That would cover the period from $5/3/90$ up to October 1990. Unfortunately Paulo Batarebeho died in an accident in October 1990. By the time

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Paulo Bitabereho died the deposit of Shs. $11$ million had been exhausted.

After the death of Paulo Bitarabeho the defendant started to use the vehicle without the authority and consent of the plaintiff. When the plaintiff demanded the vehicle the defendant refused to hand it over. She had also refused to pay the rental charges.

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According to the defendant, her husband purchased the vehicle from the plaintiff outright at the price of Shs. 16 million. Shs. 11 million was paid by cheque and Shs. 5 million by cash. The plaintiff acknowledged the receipt of the money by an agreement, Exh. P4. After that the Plaintiff himself gave the key and the log book to her husband. She said that the delay in transferring the vehicle into the names of her late husband was because it was tax free.

At the commencement of trial two issues were agreed upon, namely:

- (1) Whether or not the suit vehicle belongs to the plaintiff. - (II) Whether the plaintiff has any claim at all over the said vehicle. - Both issues were resolved in favour of the 30 plaintiff by the learned trial Judge. He entered judgment in favour of the plaintiff. The appeal is from that judgment.

The grounds of the appeal are:

- (I) 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; - (2) The learned trial Judge erred in not evaluating the evidence before him properly, had he done so he would have

found that the property in the suit property passed to the late Bitarabeho at the time of the sale and that the plaintiff was only entitled to the unpaid price and not possession;

- (3) The learned trial Judge erred in Law by not applying the law of contract and Sale of Goods to the facts of the case; - (4) The learned trial Judge erred in law by relying on hearsay evidence to find for the plaintiff who failed to prove his case on balance of probabilities and - (5) The learned trial Judge erred in law by awarding excessive damages unwarranted by the facts of the case, evidence and the law.

At the hearing of the appeal grounds one and five were argued separately. Grounds $2$ , $3$ and $4$ were argued together. $20$

Counsel for the defendant commenced his argument before this court by referring to para 4 of the plaint which sets out the facts constituting the cause of action and contended that the plaint did not specify whether the action was in contract or in tort and if in tort what kind of tort it was. If that had been determined, then the issue would arise whether the defendant could be sued either in contract or 30 in tort. He contended that from the pleadings, evidence and judgment of the learned trial Judge the action was on contract. As the defendant is not an administrator of the estate of her late husband and the Suit is not against his estate, the defendant was wrongly sued as she was not a party to the contract. On the other hand, if the suit was in tort of conversion or detinue, the Plaintiff, in order to succeed, had to prove first, that he was entitled to immediate $40$ possession of the suit property. That would raise the issue of ownership of the property. He contended that the defendant was not the right person to be sued to determine that issue.

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On behalf of the Plaintiff, Mr. Muhwezi has argued that the ownership of the vehicle was not an issue at the trial. The suit was brought against the defendant in her personal capacity for detinue. The question of her locus standi was not raised at the trial.

objection to the submission of the The defendant's counsel is that it raises a question $10$ which was never in the contemplation of the parties at the court below. It was never pleaded This is as a defence nor was it argued there. conceded by the defendant's appellant counsel. An appeal court has a discretion to allow a new point to be taken on appeal, but it will permit such a course only when it is assured that full justice can be done to the parties. In Tasmania [1890] 15 AC 223 at 225 Lord Hershell Said;

> "My Lords, I think that a point such as this, not taken at the trial and presented for the first time in the Court of Appeal, ought to be most jealously scrutinised. The conduct of a cause at the trial is governed by, and the questions asked of witnesses are directed to, the points then suggested. And is it obvious that no care is exercised in the elucidation of fact not material to them.

> It appears to me that under these circumstances $\mathbf{a}$ Court of Appeal ought only to decide in favour of an appellant on a ground there forward put for the first time, if it satisfied be beyond doubt, first, that it has before it on the facts bearing upon the new contention, as completely as would have been the case if the controversy had arisen at the trial;

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and next, that no satisfactory explanation could have been offered by those whose conduct is impugned if an opportunity had been offered then when in the witness box".

In Exparte Firth (1882) 19 Ch D 419 at 429 Jessel MR. Said:

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"It is quite true that there is some evidence about that, but the point was not taken in the County Court, and the rule is that, if a point was not taken before the tribunal which hears the evidence, and evidence could have been adduced which by any possibility would prevent the point from succeeding, it cannot be taken afterwards. You are bound to take the point in the first instance, so as to enable the other party to give evidence".

Again in North Staffordshire Railway Co v Edge, [1920] A C 254 Lord Buckmaster, at page 270 put the matter thus:

> "Upon the question as to whether the appellants should be permitted to raise here a contention not raised in the court of first instance I find myself most closely in accord 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 considering whether it is by possible to be assured that full justice can be done to the parties by permitting points new $of$ 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

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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".

It is not possible to consider this point in isolation without reference to the pleadings and $10$ the argument of defendant's counsel at the court It was no doubt it was not within the below. pleadings, it was not made an issue at the trial. The Plaintiff's case proceeded before the trial Judge 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 in made another down payment and that the defendant took possession of the vehicle after the death of her husband and has refused to hand $20$ it over to him. It is clear from para 3 of the plaint that the claim is against the defendant in her individual capacity and not in her capacity the administrator of her late husband's as estate. Neither is it against the estate of her late husband. The submission of counsel for the defendant at the lower court did not remotedly allude to the fact that she was a wrong party to the suit.

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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 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.

$\overline{7}$ If she was an administrator of the estate of her late husband, the inventory of the estate filed in court would have been scrutinised. Further, this court would have had the benefit of a considered finding of facts by the learned trial judge.

For all those 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. $10$ There is no merit in ground one and it is dismissed.

Grounds 2, 3 and 4 were argued together under a broad proposition that the contract of sale between the plaintiff and the late Paulo Bitarabeho was concluded on the 5/3/90. The parties agreed on the purchase price of Shs. 25 millions. That apparently included a tax element of Shs. 7 million. The late Paulo Bitarabeho 20 agreed to pay Shs. 16 million and the shs. 7 million tax, leaving Shs. 2 million of the purchase price, which according to the agreement, could be paid any time. That contract is evidenced by Exh P4. Possession of the vehicle was taken and Paulo Bitarabeho was given a letter authorising him to drive the vehicle plus the log book. It was the contention of Mr. Kakuru that that concluded the contract of sale. It was not a conditional sale. The late Bitarabeho paid 30 Shs. 16 million of the purchase price. If he was unable to pay the balance, the only remedy available to the respondent was to sue for the balance and not for the vehicle.

According to Mr. Kakuru Exh. P3 dated 2/4/90 could not have been a contract of hire as the property in the vehicle had passed to the late Paulo Bitarabeho by the contract the parties entered into on the $5/3/90$ . The purpose of Exh P3 was only to enable Paulo Bitarabeho to use the vehicle before he was able to pay the taxes on the vehicle. The Judge therefore erred in finding that Exh. P3 was a contract of hire.

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For the plaintiff Mr. Muhwezi has contended that the agreement of $5/3/90$ was conditional upon the late Paulo Bitarabeho being able to raise the purchase price from the proceeds from his second hand Pajero. As the late Bitarabeho failed to get the consent of the defendant to sell the old Pajero, he could not raise the purchase price. He therefore opted to hire the vehicle and the deposit of Shs. 11 millions was converted to an advance payment for the hiring of the vehicle.

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The evidence on the point is really one sided. As Mr. Kakuru rightly conceded, the defendant was not present when the negotiation between the plaintiff and her late husband took place. Most of her evidence on the matter was hearsay and was correctly rejected by the trial Judge.

Be that as it may, the evidence on record that Paulo Bitarabeho clearly shows 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 materialise 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 some time, he agreed to hire it. In my view, Exh. P3 was a contract of hire. I am unable to agree with the contention of Mr. Kakuru that Exh. P3 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 on the matter and does not admit of the strained interpretation Mr. Kakuru is putting on it.

The learned Judge was right in finding that the eleven million shillings paid by Paulo Bitarabeho was a deposit for the rental charges. As the deposit has been exhausted the defendant had no right to keep the vehicle. The learned

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judge was right in finding that the plaintiff was entitled to claim the vehicle from the defendant. I see no merits in grounds $2, 3$ and $4$ . They are dismissed.

On damages, the contention of Mr. Kakuru was that, as the action was in detinue, the plaintiff could claim damages for loss of income if the plaintiff was in the business of hiring of vehicles. I agree. But there is evidence that Paulo Bitarabeho rented the vehicle at the rate of Shs. 50,000/ $=$ per day. He used the vehicle for seven months when he passed away. Thereafter the defendant retained it, but did not pay the rent charges. The plaintiff therefore lost that income and is entitled to be compensated for that loss.

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The Judge awarded special damages of $50,000/$ = per day from 31/10/90 to 31/10/94. I do not know $20$ why he made the award up to the 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 as at the date of judgment or verdict and not the date of the defendant's refusal to return them: Rosenthal v 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 30 reasonable sum for the hire of that chattel during the period of detention, which may be up to the date of the judgment, or up to the time when the goods were returned, and not only up to the date of the demand for its return: Strand Electric and Engineering Co. Ltd v Brisford Entertainments Ltd [1952] 2 Q B. 246.

In the present case, the defendant retained the vehicle until judgment. It has not been returned in pursuance of the judgment. In these circumstances the hiring charge runs up to the date when it is returned.

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There has, however, been no cross-appeal. Therefore I will not say anything more about the award.

I agree with the learned trial Judge that the plaintiff proved his case. I would dismiss the appeal with costs to the respondent.

this.. $2$ ...day Dated at Kampala<br>10 of..... $\mathbb{R}$ ....................................

J. P. Berko<br>Justice of Appeal.

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#### THE REPUBLIC OF UGANDA

#### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### CIVIL APPEAL NO.4 OF 1999

CORAM: HON. MR. JUSTICE G. M. OKELLO, JA HON. LADY JUSTICE A. E. MPAGI-BAHIGEINE, JA HON. MR. JUSTICE J. P. BERKO, JA.

CHRISTINE BITARABEHO. ............................... APPELLANT

**VERSUS**

DR. EDWARD KAKONGE. .......................... RESPONDENT

#### JUDGMENT OF A. E. MPAGI-BAHIGEINE, JA

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I am of the same opinion as My Lord Berko, JA. I would dismiss the appeal with costs.

$2S$ . day of ................................... Dated at Kampala this ..

A. E. Mpagi-Bahigeine JUSTICE OF APPEAL

# TTIE REPUBLIC OF TIGANDA IN 1-IIE COTIRT OF.\PPE,.\L OF IIGANI),\

# IIOLDEN AT KAIIIPAI,A

### CROANI: tlON. t\lR. JUSTICE G.l\l. OKELLO, J. A.; IION. LADY JUSTICE A. E. NIPAGI-BAIIIGEINE, J. A.; IION. NIIt. JUSTICE J. P. t]ERKO, J. A.

# ctv[-..\PPEAt. NO. 1. OF <sup>1999</sup>

#### BETWEEN

# CI IRISTI N Ii I]IT.\R.\ BEI IO DEIIENDANT/APPELLANT

#### AND

### DR. ED\\,ARD K.\KONCE ::::::: PLAINTIFF/RESPONDENT

# JTIDG]!IENT OF G.1\I. OKELLO ,I., \.

I have had the opportunity to read in draft the judgment prepared by Berko, <sup>J</sup>A. I agree that the appeal must fail for the reasons he has given. I have nothing useful to add. As Mpagi-Bahigeine, J. A also agrees, the appeal is disniissed on the tenns proposed by Berko J. A.

Dated at Kanrpala th is. . 9fL day of. . {^\*^. -e- 1999.

G^-1,,^-^.,^-^ G. M. OKELLO . IIISTICE OF APPEAL