Dr. Kakonge v Bitabareho (Civil Suit 755 of 1992) [1997] UGHC 13 (25 September 1997)

Full Case Text

# 1 THE RliPUBliir Ol- UGANDA

### IN TUP: HIGH COURT ()!■• UGANDA AT KAMPALA

## CIVIL SUIT 755/92

# 12R. EDWARD KAKUNtjE:::::? PLAINT IFF VERSUS CHRISTINE B1TABARE11O RESPONDENT

TIHTIK'JNOURABLE MR. JUSTICE I. M UK ANZA

#### J U D G M E N T:

Tlie plaintiff in this case filed an action against the defendant claiming general and special damage and seeking for a declaration that motor vehicle registration No. UPX. 135 Mitsubishi Toyota is the properly of the plaintiff and that the defendant surrenders the said motor vehicle to the plaintiff immediately on delivery of this judgment and pays costs of this case.

The defendant denied in lolo what was averred in the plaint in as far as that the plaintiff sold Io the defendant's husband the said vehicle and that the paid in full and property interest therein passed. purchase price was

The plainlllf gave evidence as PW I and called as witnesses his wifePW2 and DW2. handwriting as one Mutebi PW3 whereas the defendant also gave evidence and called an expert on

Al lhe com uiencemen I of the trial of tins suit two issues were framed

whether or not the suit vehicle belongs to the plaintiff. (I) (ii) whether the plaintiff has any claim at all over the said vehicle.

# On issue No. .11

husband and wife respectively. According to the plaint PW 1 and PW3 were their testimonies they bought and imported in this country a reflected and Ls

Mitsubishi loyota motor vehicle from Japan in their joint names as supported by exhibit PJ which is an invoice for the purchase of the vehicle. A copy of the letter for the said vehicle in favour of Merubeni and company from Uganda commercial bank to received money as payment for the said vehicle. The said letter/docuwent was marked as exhibit P2. The Mitsubishi Pajero though jointly owned by PW1 and PW3 was registered in the names of Kakonge as the plaintiff but the wife endorsed l he log book as co owner to protect her interest in the said vehicle. As a Makerere stall PW1 testified that they had a tax free concession. The vehicle was between 25 and 30 million shillings. Bitabereho husband of DW1 and friend. He showed interest in the purchase of this vehicle. fhe late Bitabereho wanted to sell his second pajero so that lie purchases the new Mitsibishi Toyota/Pajero imported in by Hie plaintiff (PW1). But according to Kakonge PW1 all efforts made to persuade Mrs. Bitabereho DW1 to allow her husband selloff their second vehicle and buy this new pajero proved imported by the Kakonge's fruitless but the deceased still hoped he could still persuade his wife to allow him purchase the new Mitsubishi Pajero vehicle. So DWlzs husband deposited shillings Li millions towards the purchase of the said vehicle. This money was paid to Kakonge as per bank slip exhibit Pll. The late Bitabereho still hoped he could deposit that much and still Pajero failed and Bitabereho he could not raise the money 16 million plus 9 million. Having failed to raise the money the other alternative was to use that money as deposit for rental charges so that he could hire the vehicle. continue on convincing DW1 to accept his pleas. His pleas to sell off their 2nd

According loPWl on 5th March 1990 Bitabereho took the vehicle and started using it. He could not raise money to buy the vehicle. They PW1 and PW3 wanted the vehicle al the rental charge ol shillings 50.000/= per day since him to use March but Bitabereho died in October L990. A photocopy of the agreement of 1990 made between exhibit P3. By the time Paulo died a deposit of 11 millions lendered In court as Paulo Bitabereho on one hand and PW 1 and his wife PW2 was

shillings had The plaintiff did not demand subsequent payment because the for further studies. been exhausted. It covered a period of only 7 months. It expired in Septem ber 1990. deceased explained to him that he had problems because It was trying to send his children abroad

After his death in October 1990 the defendant started using the vehicle without his authority and consent. PW1 demanded for the release of the vehicle. The latter Bitaberaho however 1990 he gave him the original card because of the problem he was facing on the - roads. The vehicle had the road licence and when he asked for the vehicle DW1 refused to hand over the vehicle and never even paid the rental charges. She continued using the vehicle and gave no reasons for so acting. held the log book with him (EXD3). That in June

Later in September PW1 came across a document purporting to be a sale transaction of that vehicle to Paulo Bitabereho. That he had sold or transferred that vehicle to him. He received that information from the defendants lawyer. The document was dated 5th March 1990. He denied the signature on it was his. No amount was shown on the document. He said it was fraudulent and the same was tendered in evidence as exhibit P4. The road permit was made without his consent. Even the vehicle was licensed without his authority as shown in exhibit P5 a very thing was done in his names and without his authority. PW1 further explained that DW1 applied for letters of ad ministration but the vehicle was never mentioned as forming part of the estate as per the death report exhibit P7.

PW1 emphasised the fact the options were the upright purchase of the vehicle if he could raise sufficient funds and the second option was to pay him 16 three. third option was and use the vehicle and later pay him 9 millions shillings. The million shillings rental charges. When he failed to raise money he opted for option

the beginning of 1990. He said he wanted to sell it inorder to raise by Kakonge al The case for the defence was that according to DW1 (he vehicle was imported

the Ministry and was a desperat for the purchase of the said vehicle. It was agreed at 16 million 11 million shillings in form of a cheque and 5 million paid by cash. He acknowledge receipt of that money by an agreement EXD 1 (also EXP 4). lno'>ey for business e man. Her husband showed interest in buying the vehicle. They entered in the deal shilling s, because by then he was out of

Her husband wrote the agreement and her husband signed it. The letter was transferring all his interest in the vehicle to her husband. Kakonge himself drove that vehicle to Kololo in company her brother Robert and Kakonge himself handed him the key to that vehicle and even took him out to show him how to operate the vehicle. After that he handed Bitabereho the log book. The delay in transferring the vehicle it was because it was tax free vehicle. The plaintiff advised them to wait for sometime till the tax will diminish and pay less tax. received the money. An agreement was written by her husband office and that is where he

Three months after her husband's death Kakonge went to her office and asked her when she would have the vehicle transferred in their name and advised her to wait for a year so that she could not pay the taxes at all. Kakonge was aged father and his wife to her children. He used to have problems in every ministry he was transferred to. Kakonge told them not to hurry transfer the vehicle in (heir names. To her surprise in the year 1992 she got a letter from him informing her that the vehicle belongs to him and that he never sold the vehicle to them. He wrote to that is not her husband's signature. They had the certificate EXD 3 for the EXP 3 Her husband died on 29th October 1990 and nobody had been granted vehicle the fact that the deceased paid 1.1 million shillings for the further of 5 million was so aid in cash. the vehicle and shillings purchase emphasised them by his letter dated 13th January 1992 exhibit D2. What appears on to the estate of her late husband. The evidence of DW1 letters of administration

There is no mention of exhibit P3 in the letter dated by 92 EXD 2. She was

I he director of the company Nota Enterprises and the money to purchase the vehicle came from that company.

1 he crux in the matter in this issue is reflected in exhibit tendered in court. There is exhibit P3 which is connected with renting the said vehicle to the late Bitabireho. DWi stated that the signature in that exhibit P3 but she testified that ti ansferred the interest of the said vehicle to the late Bitabereho. PW1 denies the EXD1 bears the signature of her husband and Kakonge. Where PW1 is said to have signature there in as not his. Exhibit P 3 dated 2nd April 1990 runs as follows:-

> Modern Times and Carpet Centre Kampala to rent out vehicle UPX 135 Mitsubish 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 mont hly. "we the under signed have authorised Mr. Paulo Bitabereho of

> > Dr. Edward J. B. Kakonge Associate professor Z. Kakonge Dr. (Mrs) Zillah J. B. Kakonge Witnessed by Paulo Bitabereho Christine Mary Kakonge

Mutebi Moses

The other exhibits are exhibit DI and EXp 4. These exhibits are similar. PW1 testified that he got exhibit P4 from the defendant's lawyers when he visited his chambers possibly in connection with this Box 1981 Kampala 5.3.90. case. EXDKEXP4) run as follows P. O.

> " I have today transferred my interests in vehicle Reg. No. UPX 135 to Mr. Paulo Bitebereho of P. O. Box 975 Kampala for an agreed upon consideration signed Edward Kakonge signed Bitabereho.

As already stated above the said agreement of transfer the interest in the vehicle the names of the late Bitebereho was refuted by DW1. He denied having signed the said document. DW1 testified that Kakonge did sign EXD1 (EXP4) but the document was not witnessed by anybody. It did not mention the purchase price. The document talked about consideration. In the book of Hand books of the law of contract by caurence R. Simpson second edition Horn book series at page 176 the author states.

the word agreement used in the statute is not satisfied unless there be a consideration which consideration forming part of the agreement ought therefore to have been shown and the promise is not binding by the statute unless the consideration which forms part of the agreement be also staled in writling."

Though the author was referring in away to the statute of fraud but the principle enunciated there it has got some semblance with instant case. There is definitely no consideration stated or shown in EXP 4. It is not enough to say agreed upon consideration. The consideration must be stated in the agreement not done. EXP 4 is not a memorandum of an agreement to bind the document did not mention the type of transaction did not mention the that of transaction that type and whether the same was temporary or not. interest, possessory the plaintiff- On this regard I agree with the submission of Mr. Muhwezi. Besides and since this was was transferred whether the same was proprietary

Besides that evidence it must be recalled according to the evidence of DW1 the vehicle was purchased al the price of 16 millions shillings. It is not that disputed by 11 million was paid to Kakonge by cheque the parties that shillings

which the said PW1 placed on his account. PW1 testified that the cheque was paid lo Kakonge in her absence but she knew about it but the 5 million shilling was drawn from the bank of Baroda by her husband and put in 1 eplied that she was not present when the agreement EXP 4 was written and she was also not present when the 5 million shillings was given to the plaintiff but She further replied in cross examination that when the agreement was made her shop assistant Steven Kazora was present and it was the latter who informed her that the plaintiff was paid 5 million shillings. No attempt was made by DW1 to call Kazora as a witness or anyone who escorted the plaintiff to carry the 5 million shillings to his home. Mr. Winyicounsel for the defendant DW1 submitted that one has to agree more with the authenticity of EXD1 (EXP 4) as against that of EXP 3 which he submitted was forgery. The position is that the defendant failed to prove that there was such transfer of interest of the said vehicle into the names of the late Biiabereho (DI) was fraudulent to say the list. And even if the evidence of the handwriting expert DW2 had to be accepted it could not have assisted the defence because of the discrepancies inDWl's evidence. To say that the vehicle was purchase at 16 million shillings would be nothing pack of lies. The eleven million shillings was a deposit for the rental charge. And even if shillings 11 million was for deposit of the purchase price which is of course denied the defendant failed to show that PW1 received the 5 million shillings. Kakonge's car and was driven to his home by somebody. In cross examination she the money was promised to call those people who escorted Kakonge in carrying the money.

book EXD 3 as joint owner of the said vehicle. In And a further reference to exhibit P3. PW3 testified that the vehicle was jointly purchased by both the husband and herself. Even she endorsed on the log

unilaterally EXP3 the opening believe Mrs. Kakonge PW3 that EXP4 (DI) was not written by PW1 could not have transferred the interest of the said vehicle to Bitabereho without word was "we" whereas in EXP4(D1) the opening word is "I" I

**involvin**g her. Kakonge should have followed the same procedure when they made the agreement as reflected in exhibit P3. EXP 3 was signed by PW1, his wife PW3, Bitabereho husband of the deceased, Kakonge's sister and one Mutebi Moses PW3. In fact the latter Mutebi Moses testified that he signed EXP 3 as a witness called by Bitabereho. therefore of the firm value that EXP 3 was a genuine a manoeuvre on the part of DW1 to have the suit It would appear 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 or if she knew what was going on she merely wanted to take away the vehicle without any colour of fight whatsoever. Il is true she was in possession of the log book but this was ably explained by the plaintiff in his evidence. The late had problem on the road. vehicle transferred into her names. document whereas EXP4/EXD1 was 1 a in

There was also the letter dated 13.1.92 written by Kakonge to the defendant exhibit D2. This letter was addressed to the defendant by the plaintiff explaining to her the arrangement between her late husband and the plaintiff to purchase the said Mitsubishi pajero. That the late Bitabereho failed to purchase the vehicle the only option was to repossess the vehicle which was proposal number three. The complaining that the vehicle has been out of his hands for more than six hundred and forty days and was waiting for an urgent response from the There was nothing new from this letter. Plaintiff was emphasizing the three options upon which the late Bitabareho had to take the vehicle. And that the last to hire the vehicle on what was termed rental charges. After all this October 1990 to 13th January 1992 the said vehicle had never been period from transferred in the names of the defendant. No transfer forms had been filed by vehicle did not form part of suit belief that **DW1** knew that the vehicle was never sold to her strengthens my plaintiff was s option was the parties. And to crown it all in her application for letters of administration the the estate of the late Bitabareho. This

husband. I do no! believe her when she testified that she could not transfer the is not supported by the evidence on record. vehicle in her names because she was told to wail when taxes would diminish. That

From what lias transpired above issue No. 1 is in the affirmative in that the suit vehicle belongs to the plaintiff and from the evidence on record the plaintiff affirmative. has a claim over the said vehicle in which case the second issue is also in the

total of all this is that the plaintiff has proved his claim on a balance of probabilities. 1 therefore enter judgment in his favour and hereby make the following orders. The sum

- (a) A declaration that Mitsubish Toyota/Fajero is the property of the plaintiff. motor vehicle registration No. UPX 135 - <b) The defendant motor vehicle to the plaintiff immediately on the delivery of this judgment, surrenders the said - (c) The plaintiff had lost daily income at the rate of shillings 50.000/= as per exhibit P3 and paragraph 5 of the plaint. This was immediately on the demise of the late Paulo Bitabereho 29.10.90. The plaintiff is awarded special damages, 50.000/ = per day which has been specifically pleaded and proved (KCC cs. Nakamya) from 31.10.90 - 31.10.94 for four years only because of the imponderable break down of the vehicle and extra. In making this award the court is of the view the vehicle was brand new when the late Bitabereho started using it. He was with the vehicle for only 7 months when he passed away. There afterwards it was retained by the defendant. The plaintiff would be entitled for the rents not from 31.10.90 up to dale. That would rather be on the high scale. The court considered I he i m ponderables and judiciously permitted rental

charges for 4 years as explained above.

- id) 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 use of However this figure is rather on the High scale, general damages of about shillings 4 million would properly compensate the plaintiff. the vehicle for these seven years. - (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. - if) The plaintiff is awarded costs of this suit.

I. M UK. ANZA JUDGE 25.9.97

#### 25.9.97:

Mr. Muhwezi for the plaintiff present

Parlies absent

Mr. Winyi for the defendant absent

Mr. Mu soke court clerk

Court: Judgment is read and signed.

I. MUKANZA JUDGE 25.9.97