Foods & Verages Limited v Musisi (Civil Appeal 32 of 1992) [1993] UGSC 43 (16 November 1993)

### THE REPUBLIC OF UGANDA

### IN THE SUPREME COURT OF UGANDA

#### AT MENGO

(CORAM: MANYINDO, D. C. J., ODOKI, J. S. C. & ODER, J. S. C.)

## CIVIL APPEAL NO. 32 OF 1992

#### BETWEEN

FOODS AND VERAGES LIMITED ............. APPELLANT

#### A N. D

ISRAEL MUSISI OPOYA ........................ RESPONDENT

(Appeal from the Judgment of the<br>High Court of Kampala (Soluade,J.) dated 30th April, 1992

I<sub>N</sub>

$H_{\bullet}C_{\bullet}C_{\bullet}S_{\bullet}$ NO.1169 of 1968)

# JUDGMENT OF ODER, J. S. C.

The appeal is against a judgment of the High Court dated 30th April, 1992 awarding the Respondent shillings 20,000,000/= general damages in a suit for punitive and special damages for alleged treeps, conversion and destruction by the Appellant of the Respondent's Tata lorry. No claim for general damages was pleaded in the plaint.

At the trial only the Respondent and his witnesses testified. The Appellant did not. The facts as established by evidence are straight forward. In May, 1975, the Appellant and the Respondent each bought a new Tata Lorry from ECTA, dealers in that tupe of motor vehicle in Kampala. The chassis and engine numbers of the Appellant's lorry were 16445 and 16987 respectively and those of the Respondent 17048 and 17605. On 14th May, 1975, the two vehicles were registered at the Central Motor Registry in the respective names of the owners,

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and number plates issued to them by ECTA. The Appellant's wehicle was registered as number UVS 054 and the Respondent's as UVS 017. Unfortunately, ECTA mistakenly swopped the number plates, giving the Appellant UVS 017, and the Respondent UVS 054. Consequently, and unknown to them, they took delivery of their Respective vehicles bearing the other's number plates. The mistake was not discovered until several years later.

In the meantime, the Respondent's lorry was taken away from him by soldiers in 1976. Two years later, it was recovered in the Sudan. It was in a poor state of disrepair. FCTA repaired it. When, subsequntly, the Respondent took the lorry for re-licensing at the Kampala Licensing Office, he was informed that the number UVS 054 was for the Appellant's lorry and that his own was UVS 017. The Licensing Officer wrote a letter to ECTA to that effect, copying it to the Appellant. On taking the letter to the Appellant, the Respondent was informed that the former's lorry number UVS 017 had been lost during the 1978/79 war. That information was conveyed to the Licensing Office. Subsequently the Respondent surrendered the number plate UVS 054 to the Licensing Office, and he was issued with a new one bearing number UVS 017, which he fixed on his Iorry.

The Respondent's lorry, now bearing the new number, was hired by another businessman to carry salt from the Appellant's stores in the Industrial Area, Kampala to Rugerere. When it went there to pick up salt on 21st January, 1982, the lorry was seized by the Appellant, claiming to be its owner. The Respondent reported the seizure to the police who subsequently carried out investigation to determine the ownership of the lorry.

As early as March 10, 1982, the O/C C. I. D. of Jinja Road Police Station, Kampala, who were doing the investigation, informed the Appellant by a letter, exhibit $P.9$ , that enough

inquries had been done by contacting the Licensing Office (to which they referred as the Inland Revenue Department) and ECTA to ascertain the real owner of the Tata lorry UVS 017 which had been seized by the Appellant. The letter ended as follows:

> "As a result, we have arrived to a conclusion that<br>the wehicle belongs to Musisi the claimant. For this reason I would request you to release the<br>said vehicle to Musisi OPOYA on on receipt of this letter".

Subsequent correspondence from the police to the Appellant took the same line. For instance a letter dated 18th June, 1983 from the Regional C. I. D. Officer, Kampala and another dated 21st May, 1985 from the C. I. D. Headquarters. The Appellant ignored the advise conveyed by all the police correspondence to them, insisting that the police should conduct further investigation by inspecting the chassis and engine numbers of the lorry in dispute. In the meantime, the vehicle continued to be detained at the Appellant's yard until 28th June, 1985, when it was handed over by the Appellant to the police, who towed it away for purposes of inspection. According to police records, exhibit P 8, the Appellant had had custody of the lorry on behalf of the police during the period when enquiries were going on. The records also indicated that on the day the lorry was towed away from the Appellant's yard several parts were missing; for examples, two tyres, hub and drum, propeller shaft, injector pump linkage, etc.

Subsequently, the Respondent had the lorry surveyed in September, 1985 and March, 1988 by an Engineering Loss Assessor, David Bukenya (P. W.5). Referring to his survey Report of 16th March, 1988, Bukenya testified that the Replacement value of the lorry was shillings 38,00,000/- and that it would be uneconomical to repair it due to its age.

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On the basis of the facts, the learned trial Judge made certain findings on the five issues that had been framed at. the trial. The first issue was whether the motor vehicle belonged to the Respondent. The learned trial Judge's answer was in the affirmative. He found that the evidence available left no doubt that the Respondent was the owner of the lorry. The Appellant does not dispute this finding. It's learned Counsel, Dr. Byamugisha, so informed us.

The second issue was whether the Appellant converted the vehicle and the third was whether the Appellant held the vehicle under an honest claim of right. The learned Judge held that the Appellant had honestly believed that they had a claim of right in holding to the vehicle. Accordingly, its conduct did not amount to conversion. These findings appear to form the basis of ground one of the appeal, which is that the learned Judge erred in law and in fact in not holding that the suit vehicle, while on the custody of the Appellant, was throughout the entire period of such custody held by the Appellant under an honest claim of right and that the Appellant could not be held liable for conversion of the same.

On issue number four, which was whether the Respondent's conduct caused the Appellant to hold on to the vehicle to its detriment, and the Respondent was stopped from claiming from the Appellant, the learned trial Judge held that the vehicle had some parts missing during the period it was in the Appellant's custody, and that the Appellant ignored the police letter dated 10th March, 1982 (exhibit p9) notifying it of the Appellant's claim to the lorry at its peril. Accordingly, as the vehicle was cannibalised while it was in its custody, the Appellant could not turn round and say that the Respondent's conduct had caused the Respondent to hold on to the lorry and was, therefore, estopped from claiming from the Appellant.

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This finding apparently gave rise to ground two of the appeal, which is that the learned Judge erred in law and in fact in holding that echibit $p$ 9 was written after the police had carried out sufficient inquiries to establish ownership of the wehicle to the stisfaction of the police or the Appellant.

On the issue of relief, the learned trial Judge rejected the Respondent's claim for special damages as not having been proved, but awarded him shillings 20,000,000/= as general damages. This award forms the basis of the third and last ground of appeal, which is that the learned Judge erred in law and in fact in assessing and awarding it to the Respondent against the Appellant.

Dr. Byamusisha, learned Counsel for the Appellants took grounds one and two together, which I will also do in dealing with them. He appears to have essentially made two points in his submissions. Firstly that the evidence of the O. C., C. I. D. of Jinja Road Police Station, Baniloye Moses (P. W.4) indicates that the police investigation into the ownership of the lorry was carried out on the basis of the Appellant's complaint of a criminal offence, accusing the Respondent and one S. Kamya of being in possession of a suspected stolen property, namely the Tata lorry in question. Consequently, the investigation continued even after the police had written exhibit p.9 to the Appellant. Thereafter, further investigation was necessary because, the Appellant was not satisfied with the conclusion reached by the police to the effect that the Respondent was the owner of the lorry. According to the learned Counsel, certain correspondence from the Appellant and the police written subsequent to exhibit p.9 formed part of that investigation. For instance, annexture "E" to the plaint, by which the C. I. D. Kampala Regional Office informed C. I. D. Jinja Road Police Station on 18/6/83 that inquiries based on records available

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in the Revenue Office and the Central Registry of motor vehicles had found unchallengable evidence that the disputed motor lorry belonged to the Respondent. The letter was copied to the Appellant. Another correspondence, annexture "F", was written by the Director of C. I. D., Police Headquarters, on $21.5.85$ to the Appellant, informing the latter that Police inquiries had confirmed that the engine and chassis numbers of the lorry had never been tampered with. It is said that this was disputed by the Appellant in a letter dated 29.5.85 (annexture "G") which stated that the police had had no access to the lorry for purposes of inspecting its chassis and engine number ever since it had been detained in the Appellant's yard and therefore, could not have excertained the truth regarding the numbers. Consequently, on 7.6.85 the C. I. D. Headquarters by annexture "H" asked the Appellant to surrender the lorry for that purpose or else return it to the Respondent as the owner. As shown by their records (exhibit $p.8$ ) the police subsequently took over the vehicle from the Appellant on 28.6.85 for inspection of the chassis and engine numbers. It is contented that the relevant part of the records indicates that this was done in continuation of the investigation. It reads:

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"We the police now take over the above lorry which we<br>authorised to Foods and Beverages Ltd., to keep on our behalf as we proceeded with the investigation<br>regarding this vehicle".

Thereafter the vehicle was examined on $18/7/85$ by the Police Scientific Aids Laboratory, whose report, annexture "1", it is contented, was not conclusive on the question of whether the chassis and engine numbers had not been tampered with.

Secondly, Counsel criticised the learned trial Judge for holding that the Appellant had continued to detain the lorry at its peril after the police edvice in exhibit $p.9$ , implying

$...7...$ that it should have handed it over to the Respondent on receipt of that communication. The case of Clayton vs. Le Roy (1911) 2KB, 1031, was relied on for a proposition that a Defendant alleged to have converted property is entitled to inquire and satisfy himself as to the ownership of the property before he can be held liable. It is said that conversion does not occur until after such inquiry has established the person claiming a chattel as the owner. In the instant case, it is contended that the learned trial Judge having held that the conduct of the Appellant did not amount to conversion because it had honestly believed that it had claim of right to the lorry should not have found the Appellant liable to the Respondent,

The finding of the learned Judge that the Appellant's conduct did not amount to conversion is supported by evidence adduced before him. He was, I think entitled to make that finding. The Respondent did not cross-appeal that decision. It must, therefore, stand. The question of when conversion should be considered to have begun would therefore appear to be irrelevant. The main issue regarding the grounds of appeal under consideration, in my opinion; is whether the finding of the learned Judge that the Appellant was liable was justified. As I see it the answer to that question is found in the following passages of the judgment;

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"Having accepted the fact that the vehicle was canibalised while in the Defendant's custody the Defendant cannot turn round to say the Plaintiff's conduct caused them to hold it, and as such the<br>Plaintiff should be estopped from claiming from the Defendant. Exh.9 was adduced to the Defendant<br>barely two months after it was seized but they chose<br>to ignore it at their peril. The next question is to what extent was the vehicle damaged/......"

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Then towards the end of the judgment the learned trial Judge said on page $67 -$

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"On damages to chattel, the law is that the Plaintiff should be placed in the same position as he was before the damage to his chattel, vide B. Sunley Co. Ltd. vs. errorred White Star (1940) 1 KIB. 740 at 745".

It appears to be clear from the above passages that the learned trial Judge held the Appellant to be liable to pay damages to the Respondent, not for conversion of the lorry for for the cannibalisation or damage that was done to it when it was in the Appellant's custody. It was with regard to cannibalisation or damage to the vehicle that he said that the Appellant had chosed to ignore exhibit P.9 at its peril. In view of the claim which the police had indicated by that communication the Appellant was liable for cannibalisation that occurred thereafter. As it chose to ignore the police advice, it had done so at its peril. I agree with the learned trial Judge. What is more the learned Judge does not appear to have meant that the Appellant should have handed over the lorry after receipt of Exh.p.9 and that as it had not done so, it was guilty of conversion thereafter. This is especially so in view of his finding that the conduct of the Appellant did not amount to conversion.

In his ammended plaint, the Respondent pleaded that his lorry was cannibalised, and claimed punitive damages for, inter alia, trespass and what he termed "destruction of the vehicle". The Appellant denied it. However, evidence given by the Respondent, his other witnesses and in the form of police entries as records concerning their investigation (Exh. p.8) indicate that when the Appellant seized the lorry on 21.1.82 the vehicle was in a running condition. It went there to load salt. But nearly three years and five months later when the Appellant surrendere it to the police on 28.6.85 several parts were removed while it was in the Appellant's custody, and it had to be towed away.

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It was no longer in a running condition. This evidence was not contravented. Consequently, I think that in the circumstances. the Appellant's claim for damages for trespass was proved on the balance of probability. The finding of the learned trial Judge to the effect that the Appellant was liable for some of the cannibalisation of destruction to the lorry cannot, I think, be faulted. The liability flowed from the destruction or cannibalisation which was proved by the Respondent. For these reasons I would think that grounds one and two of the appeal should fail.

The third (and last) ground is that the learned Judge erred in law and fact in assessing and awarding the Respondent damages in the sum of shillings 20,000,000/=. In his submission, the learned Counsel for the Appellant contended that the Respondent neither pleaded general damages in his plaint nor proved facts on which they could have been estimated. Regarding the period of non-use the learned Counsel submitted that the Respondent's claims should have been confined to three years. that is to say up to June, 1985 when the Appellant released the vehicle to the police; and not to 1988 when the destruction was assessed and the suit instituted. Counsel then critised of Shs 20,000,000/= for non-use and the Respondent's obstinancy for not returning the lorry. With respect, I am unable to accept the learned Counsel's contention about the consequences of the Respondent's failure to plead general damages. As already said in this judgment, the Respondent failed in his claim based on conversion; but succeeded in trespass. According to the authorities in Clerk & Lindsell on Torts, 13th Edition, paragraph 301 and 1973, trespass has always been a remedy affording compensation for injury to chattel. The sole question is whether the Defendant has directly interfered with the

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Plaintiff's possession of the Chattel. Trespass remedies any damage thus cause; it is also actionable per se, that is, without proof of actual damage to the Chattel. In the circumstances, pleading damages for trespass would appear to be unnecessary. Thus I think that failure by the Respondent to plead general damages in the instant case was not fatal to his claim.

Regarding the facts on the basis of which the learned trial Judge assessed the award of Shs 20,000,000/= general damages, they were stated in the passages of the judgment I have already referred to. I think that the learned trial judge was entitled to take them into account in assessing general damages in the circumstances of this case. There was first the the period of over three years during which the Respondent. was deprived of the use of his lorry due to the Appellant's trespass to and the destruction of the vehicle as proved. Second was the fact that due to its age, it was no longer economical to repair the lorry; whose replacement value at the time the suit was tried in 1988 was Shs.38,000,000/=.

However, not-withstanding all these factors which the learned trial Judge justifiably took into account, I think the award of Shs 20,000,000/= was on the higher side considering all the cicumstances of this case. I think that general damages of Shs 10,000,000/= would have been a fair compensation for what happened to the Respondent's vehicle due to the Appellant's trespass. That is what I would award, the Respondent. In the circumstances, I think that ground three of the appeal should partially succeed.

In the result, I would allow this appeal in part, and think that the Appellant should have half the cost of the suit and of the Appeal. Accordingly, I would set aside the award and order for costs stated in this judgment,. The Respondent should have half the costs of the suit.

Dated at Mengo this 16th day of November, 1993.

A. H. O. ODER

JUSTICE OF THE SUPREME COURT.

I CERTIFY THAT THIS IS A TRUE COPY OF THE ORIGINAL

B. F. B. BABIGUMIRA

REGISTRAR