Karema v Attorney General (Civil Suit 103 of 1990) [1991] UGHC 37 (29 January 1991)

Full Case Text

## THZ REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UC-. INDA AT KAMPALA

## .h • CIVIL SUIT NO, 10J OF 1990

f.i NATHAN KAREMA .................. PLAINTIFF ••••■/■ I • V E R S U 3

ATTORNEY GENERAL DEFENDANT BEFORE: THE HON. iYR. JUSTICE J.u. N. T3EK00K0.

## J U D G !\i E N T

In this suit the plaintiff claimed (a) for the return of p. his motor vehicle Registration No. UXG JO? or alternatively jy\ its value estimated at shs.10,200,000/= and (b) general damages for detinue or conversion.(c)Hc further claimed for shs.12,350,000/= as special damages for lost income for A years.

In paragraph 4 of the amended plaint the plaintiff stated that on or about 23/8/1985 he was arrested at Luwero by NRA soldiers and was requested by the then Commander Ahmed Kashillingi to surrender his personal vehicle Peugeot 504 Reg. No. JO? to NRA to be used in operation and was promised that the said vehicle shall be returned to him upon his release.

In para 5 the plaintiff stated that on or about 10/11/1986 he was released from detention but his vehicle -was not returned to him. He reported the matter to the Director of Millitary Intelligence (then Commander Mugisha Muntu.) and a search for the vehicle began.

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And. in p j.cn 6 theplaintif.f... stated- that during the month of October, 198?, the plaintiff saw the said vehicle packed at the President's office yard in Kampala intact with its registration No. UXG \$07 on and the writings on the side. driven- • • • • • The vehicle' was oemg/by Millitary personnel in Uniform. The plaintiff reported this to the Director of Transport in NRA, Ma j or Kaka but. th c ve hicl-e- <*s-'* not • se en again.

A% the cojh'cncemcut of the hearing of the suit the defence admitted liability whereupon issue became quontun of damages which was framed thus.

Is the value of the vehicle assessed as at the time of Judgment. taking or at the time of / " How much is that value? There is of course the general issue of general damages.

I raised the question of whether the defendant would be liable for conduct of NBA prior to the period when NRM took state power on 26/1/1986. The defendant became liable because of the acknowledged continued use of the plaintiff's vehicle by NRA officers after that date because such officers by then -were servants and or agents of the defendant.

The plaintiff testified and called one other witness.

In his testimony the plaintiff repeated the contents of the plaint some of hich have been produced above save that the value of the vehicle was raised to shs.1\$,900,000/= as representing the current market value of a 504- pick up of his type at the Afro rotors . Ltd who ano the mam dealers in Peugeot vehicles. He stated that in 1985 he was the District Commissioner. Lwro District before he was arrested on

^3/8/1985 from Castello Hotel, Wobulenzi where he lodgedly. By that time NRA/NRM had taken over Luwero District although Lutwa's Government was now ruling Uganda. Ahmed Kashilling the then Commanding Officer, TIRA, led soldiers who arrested the plaintiff after which Kashillingi took the Plaintiff's vehicle undertaking to return it to the plaintiff after the capture of Government by NRM/NRA which would also pay for the use of the vehicle by which I understand to mean NRA would.pay hirinng charges. Kashillingi further promised that replacement value would be paid if the vehicle got lost or destroyed. The plaintiff further testified that he had purchased the vehicle during May 1985 when it was brand new from afro Motors for purposes of business such as transporting fish from Lake Kyoga (Rwampanga) to Kampala as well as operating it as a taxi. This the plaintiff impressed upon Kashillingi. The vehicle was taken but the plaintiff himself was detained by NRA till November, 1986 when he was released. After release he visited Kashillingi at Republic House Army Headquarters where Kashillingi advised him to look for the vehicle as Kashillingi did likewise. The vehicle was found parked at President's Offices in November, 198? bearing its Registration same numbers. The plaintiff contacted Major Kaka and Lt. Colonel Kashillingi for purposes of returning the vehicle <» He saw the.m many times without success.

On 2.2.1989 Lt. Colonel Kashilling wrote- a letter (now Exh. Pp) reference NRA/RDS/2A paragraph one of which states This is to certify that the above vehicle (UKG 507 Peugeot

pick-up) which belonged to &?, Nathan Karema former DC Luwero was bein|| used by ?<RA since August\$ 1985".

Again Exh. P4 is a letter dated 1/6/1989 written by Lt. 5' i11 i am Muhurnuza, 0. C, Cleric a 1 Tra in ing '■? ing of NRA about the same vehicle:-

"This in to confirm that the hrov-. mentioned vehicle (UXG 307 Pt.up cot) used to be under late Commander John. He was admitted at Millitary Hospital Mbuya and I was the\* Chief Clerk General Headquarters Mbuya during the. month of May and. September, 1987, when Yazid Umar was the Adjutant of the Headquarters who also c^n give information. Any assistance to the owner is npi'ruci.. tod." The two letters bear the head "National <Resisten.ee> iirmy" and bc?.r official stamps

I have reproduced the contents of Exhibits P5 and P4 to show that in fact NRA continued using : .w plaintiff's vehicle after taking over Government in January 1986 and therefore the half hearted submission by Mr. Wabunoha that the vehicle was given to Kashillingi on personal basis has no justification. The two letters 'Also demonstrate that admission of linbilil'/y by the defendant was—proper in law.

I should her-., consider the issue of the time at which the value for the lost vehicle is ro be assessed.

Learned Counsel- for the plaintiff submitted that the value of the vehicle is as at th< time of judgment while the State Attorney's view is that the time for•determining the value should be it the time whin plaintiff knew that

vehicle was lost, that is, at the end of 1987.

--e-ou-rrs-cl—for—hu"pTuintiTf' referred 'li"to l6th'"Ecrition of Underhill's Law of Torts (at page 96), Helsbury's Laws of England (the Edition of the year "1909) Volume '10 para 634 at page 344 to support his view.

The learned State Attorney referred'me to the case of Chubb Cash Ltd, vs. Grill cry (1983) 2 1x11 ER. 294 which is clearly a case of conversion and HCCS 621 of 1988 Najja Revercges &, Musisi vs. Attorney General (unreported). The plaintiff's vehicle was in my view forcubly removed from him. He was a prisoner when it was taken. He was imprisoned for about a year after the'vehicle had been taken. Lt. Col. Kashillingi's promises were of least help.

In considering the issue the decision of the Uganda Court of Appeal in Civil appeal No ,6 of 1982 (Uganda Commercial Bank vs. Ivlatiya Wasswa)is very helpful. In that case the appellants had seized the respondent's vehicle (bus) whereupon the respondent sued for detinue praying for return of the ,y\bus or its value and general damages. The High Court awarded the value of a new bus at the time of trial. On appeal the Court of Appeal when dueling with this aspect stated the law as follows at page 13 of the Judgment:-

"As to damages for the value of the bus the learned judge awarded a sum of shs.564,661/= being the cost' of a now Tata bus because hu said, the respondent's bus is now a scrap. Mr. Mulenga criticised this award and ref or.r.oc". us to the law as stated in Vol.38 Salsburys Laws, 3rd Ed., page 791 at para 1317, which

states that the damages to be awarded where the goods are not returned / the market value of the goods at the date of judgment. We accept this statement of law as correct. See Rosenthal vs. Alderton and Sons Ltd. $(1946)$ KB 374."

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I respectfully agree that this is the law as stated by the court of Appeal. The value of the plaintiff's vehicle is therefore to be that value as at the date of this judgment as the case before me is a case detinue on the evidence available. What is that value then?

Counsel for the plaintiff submitted that it should be shs.14,500,000/= which, represent the latest cost of a new pick-up or at least shs. 15,500,000/= being the recent value of such pick-ups. Mr. Wabuncha has opposed this maintaining that this is a case of conversion and that value whould be shs.4,000,000/= which was the price of a pick-up (like that according to counsel's view of plaintiff) at end of 1987 when/the plaintiff defininetely knew that his vehicle was lost. This submission ignores the contents of Exh. P3 and P4 which imply that the vehicle was still with NRA.

I have already held that this is a case of detinue and not conversion. So the cases of Chubb Cash (supra) and Sa chs vs. Mikolos (1948) 2 KB 28 don't apply.

The plaintiff testified that his pick-up was new and was still bearing seats covers with which it was driven from show room of Afro Motors Ltd. He testified that the vehicle had been kept in a garage where construction on it was going on

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to make it suitable for taxi work. The vehicle was hardly \_.3\_mojiths..\_o\_ld.\_vfh-cn—r^-t——s-e-L&e-d-?-- I-t--fraP—bnrxT±y""treen engaged on the roads. It was thus still new. This evidence was not challanged and I accept it. I wondered whether the. period between 23/8/1985 and 25/1/1986 should not bo taken into account so as to render the vehicle, in theo'ty not so new as at 26/1/1986 since before 26/1/1986 the conduct of NBA could appear not to attach liability to the defendant. However on further reflection I have decided against that course. The same NBA officers who seized the vehicle continued using it or gave authority for its use by other NBA personnel after 26/1/1986. Lt Colonel Kashillingi has admitted this in Exh. PJ. I think it would be unjust to the plaintiff in those circumstances to regard his vehicle ns having been old when it was in fact brand new.

In the amended plaint the plaintiff had claimed for shs.10,200,000/= as th«.> value of his vehicle. This was the price of a similar new pick-up at Afro . Motors as. shown by proforma Invoice dat.'-d 19/2/1990 which was admitted as Exh. P1. Because of rise in prices he secured another proforma invoice admitted as exhibit P2 dated 3/9/1990 showing that- the price of similar pickups at Afro Motors by that date (3/9/1990) was shs.13,500,000/=.

The plaintiff called Sammuel Mwesigwa (PV/2) an Accountant from Afro Motor Ltd. who in his testimony confirmed the details in Sxhts. PI and P2 thus supported the plaintiff. He in fact

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went further x.i stated that there ar-., new similar pickups (504s) whose cost is being' v/orked but now and his view was that they are likely to cost not less than shs.14,500,000/=. He explained how the final cost'of a new pick-up is arrived at by his company. From his evidence the value of shs.14,500,000/= still remains speculative in my view and so has no relevance in this case now.

' The judgment of the court of appeal in t-asswa's case is again still relevant, ft page 14 their lordship stated:

''The learned judge fell into error in awarding a sum equivalent to the value of a new bus. The respondent should be given his bus back or its market value at the date of the judgment. Tho appellant bank did not seize a new bus from the respondent and there is no reason ■aby it should pay damages equal to the cost of a new bus. The value1 of the bus 'is at tho date of judgment ir contained in the valuation^ report which put its value as on 24/1/US'! at shs. ' 'o0,0.j0/= This must be taken as the value of th. bus on the date of judgment since the report was not updated before the trial."

The implication of this passage is that if the valuation report had been updated the v-.'.luo of tho bus to bo awarded by the court of appeal would hive been higher than shs. 180,000/=

In tho case before ? I take tho value of a now pick-up to be that reflected in proforma invoice Exh.1 as shs .13,500,000=. P. V7.2 vzas categorical on this. I accept this as the correct value of new pick up. The plaintiff is entitled to a new pickup or its value which is shs.13,500,000/=. In the absence oi a

a new pick-up I award him shs.15,500,000/=. I have awarded -sh-s-T-l-Jv500,-600/ rns-t-ertd--- o-£- Erhtmv1-6-^ 206y6-O6/=--o-rrg-incrlly claimed in the amended plaint because evidence established the amount I have had to award.

Mr. Kakuru further submitted that the plaintiff should be awarded shs.4,000,000/= by way of general damages because the plaintiff was deprived of use of his vehicle for over four years. The learned S-f-ate'Attorney suggested a figure of shs.500,000/= as general damages.

The plaintiff was unlawfully denied the use of his vehicle for over four years. He was even arrested and apparently (Confined for over a ye^r without obvious reason. Unfortunately he did not claim for the arrest and confinement so 1 don't have to consider it any more.

Considering that the plaintiff intended to put his pick-up to business, he has sufferred loss and damage because of being deprived of it. Unfortunately he did not give evidence to suggest how profitable that business would be.- ... In the circumstances and doing the best I can, having taken impederabies into account, I think that shs.5,600,000/= would be adequate as general damages.

The plaint contained a prayer for shs.12,550,000/= as special damages (as hiring sharges). There was no proof of this. Special damages have to be proved strictly. The plaintiff has failed to dp so. I therefore award nothin" under this head.

To sum up judgment is cnfeorel iga.inst l:hc defendant and in favour of the plaintiff as follows

- (a) a sum of shs.13,500,000/=(Ug. shillings thirteen million and five hundred thousand) only as the value of a new pick-up. - (b) a sum of sits . J ,000,000/=(Up. shillings three million) as genoral clamage s . - (c) Interest at Court rates on the decretal amount from to-day till payment in full. - (d) Costs of this suit.

J.'l.'N. Tsekooko

JUDGE 29/1/1991.

1/2/1991 at 9.0O^.\*» Mr. Kahuru. for plaintiff Plaintiff present Ssenyonga - Interpreter Defendant absent . Jud sin ent de1ive red.

J.'J. N. Tsekooko

JUDGE 1/2/1991.