Kyenjonjo Town Council v Mugarra (Civil Appeal 5 of 2018) [2024] UGHC 264 (29 April 2024)

# **THE REPUBLIC OF UGANDA, IN THE HIGH COURT OF UGANDA AT FORT PORTAL CIVIL APPEAL NO. 005 OF 2018 (ARISING FROM FPT-00-CV-190 OF 2014)**

| KYENJOJO TOWN COUNCIL | :::::::::::::::::::::::::::::::::: APPELLANT | |-----------------------|----------------------------------------------| | VERSUS | | | MUGARRA RICHARD | ::::::::::::::::::::::::::::::: RESPONDENT |

#### **BEFORE HON. MR. JUSTICE VINCENT EMMY MUGABO**

#### **JUDGMENT**

This is an appeal against the judgment and decree of the Chief Magistrate of the Chief Magistrate's Court of Fort Portal at Fort Portal delivered on the 20th day of December 2017. In the said judgment, the appellant was held liable for the loss of UGX. 35,000,000/= which belonged to the respondent. The appellant was also ordered to pay interest on the said amount and the costs of the suit. Dissatisfied with the entire judgment and decree, the appellant filed this appeal.

### **Background**

The respondent filed Civil Suit No. 190 of 2014 before the Chief Magistrate's Court of Fort Portal, seeking the recovery of UGX 35,000,000/=(thirty five million shillings) interest, and the costs of the suit. The events leading to the suit are that in 2014, the respondent operated a business in lockup No. 06, located along Fort Portal Road in Kyenjojo Town. However, he failed to pay the trading license fee to the appellant for the fiscal year 2013/14.

As a result of this non-payment, on 13th March 2014, the appellant's law enforcement officers locked the respondent's premises. The respondent claimed that at the time the premises were locked, he had UGX.

35,000,000/= stored in a drawer inside the lockup and when the premises were later re-opened on the 14th of April 2014, this money was missing.

In his judgment, delivered on December 20, 2017, the learned trial chief magistrate found the appellant liable for the loss of UGX. 35,000,000/= which belonged to the respondent. The appellant was also ordered to pay interest on the said amount and the costs of the suit.

Being dissatisfied with the decision of the trial Chief Magistrate, the appellant appealed to this court on the following grounds:

- I. The learned trial magistrate erred in law and fact in holding that the respondent had money to the tune of UGX. 35,000,000/= in his lockup No.6 at the time of locking the same by the appellant. - II. The learned trial magistrate erred in law and fact in holding that the appellant was liable for the loss of UGX. 35,000,000/=. - III. The trial magistrate erred in law and fact when he failed to evaluate the evidence on record thereby coming to a wrong conclusion that UGX. 35,000,000/= was in the lockup No. 6 at the time of locking the same and the appellant is liable for the loss of the same.

# **Representation and Hearing**

The appellant was represented by Ms. Lubowa Racheal while the respondent was represented by Ahabwe James. Both counsel for the parties filed written submissions which I have considered in this judgement.

# **Duty of the First Appellate Court**

This being a first appeal, this court is under a duty to reappraise the evidence, subject it to exhaustive scrutiny and draw its own inferences of fact, to reach its independent conclusion as to whether the decision of the trial court can be sustained. This duty is well explained in the case of *Father Nanensio Begumisa and three others v. Eric Tiberaga SCCA 17of 2000* where the court held thus:

*"It is a well-settled principle that on a first appeal, the parties are entitled to obtain from the appeal court its own decision on issues of fact as well as of law. Although in a case of conflicting evidence, the appeal court has to make due allowance for the fact that it has neither seen nor heard the witnesses, it must weigh the conflicting evidence and draw its own inference and conclusions***."**

It is not the function of a first appellate court to merely scrutinise the evidence to see if there is some evidence to support the lower court's finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the trial court's findings should be supported. In doing so, the court should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses *(see Peters v. Sunday Post [1958] E. A 424).*

Against this background, I now re-evaluate the evidence presented at trial against the appellant's grounds of appeal.

### **Submissions by Counsel for the Appellant**

Counsel for the appellant submitted on grounds 1 and 2 concurrently. Counsel argued that during the trial, the appellant presented evidence confirming that the respondent's premises were locked and subsequently reopened in his presence, a fact that was corroborated by all the plaintiff's witnesses.

Counsel for the appellant contended that the respondent had failed to meet the burden of proof as outlined in sections 101-103 of the Evidence Act, to demonstrate to the court that the respondent kept UGX. 35,000,000/= in his lockup at the time it was locked, and the appellant was responsible for its loss.

Furthermore, counsel argued that the transactions alleged to involve the lost money were fictitious and had been fabricated to unjustly enrich the respondent.

Counsel for the appellant argued that none of the plaintiff's witnesses had ever testified to witnessing the purported transactions, nor had any seen the money stored in the lockup. Counsel argued that the respondent had failed to discharge his burden of proof as required in civil cases.

Regarding the third ground of the appeal, counsel for the appellant argued that the magistrate had failed to properly evaluate the evidence on record according to the requisite standard, leading to erroneous findings. Counsel argued that a proper evaluation of the evidence would have shown that no transactions occurred and no money was in the lockup at the time it was locked by the appellant's law enforcement officers. Counsel argued that the magistrate had completely disregarded all the evidence on record, resulting in an erroneous conclusion.

# **Submissions by Counsel for the Respondent**

In his submissions, counsel for the respondent raised a preliminary objection on the competency of the appeal and then submitted on the three grounds of appeal concurrently.

Counsel argued that the appeal was filed out of time as prescribed by law. counsel submitted that the judgment being appealed against was delivered on the 20th of December 2017 and the appeal was filed on the 23rd of April 2018 which was beyond the 30 days required to file an appeal as per Section 79 of the Civil Procedure Act.

Regarding the three grounds of appeal, counsel for the respondent submitted that there was cogent evidence on record showing that the respondent had sold his land to Friday William for UGX. 32,000,000/= and rented his lockup to Mpumwire Zakaliya for UGX. 3,000,000/=. The combined total of these transactions amounted to UGX 35,000,000/= the sum that was in the lockup at the time it was locked by the appellant's law enforcement officers.

Counsel also argued that the respondent had, at the trial, led compelling evidence showing that at the time the lockup was being locked, he pleaded with the appellant's agents to remove the money before securing the premises. However, when they opened it, the money was not found in the lockup. Counsel argued that the conduct of the appellant's agents, who took the money and ignored the respondent's repeated demands, indicated they were liable for the loss.

### **Submissions in rejoinder**

In her submissions in rejoinder, counsel for the appellant submitted that the instant appeal had been instituted in time. Counsel argued that as per section 79(2) of the Civil Procedure Act in computing the period within which to appeal, time taken by the court or the registrar in making a copy of the decree or order of appeal and of the proceedings upon which is founded shall be excluded.

Counsel argued although the judgement in Civil Suit No. 190 of 2014 was delivered on the 20th of December 2017, counsel for the appellant had filed a letter requesting a typed copy of the proceedings as well as a notice of appeal on 5th January 2018. Counsel submitted that since the decree from which this appeal arises was issued on the 13th day of April 2018, a memorandum of appeal filed on the 23rd of April 2018 was filed within the time envisaged under section 79 of the Civil Procedure Act.

# **Consideration by Court**

Before delving into the merits of this appeal, I will first address the point of law raised by counsel for the respondent regarding the competency of the instant appeal.

The law regulating the commencement of appeals from the Magistrate's Court to the High Court is stated under Order 43 1(2) of the Civil Procedure Rules. The rule states thus:

> *"Every appeal to the High Court shall be preferred in the form of a memorandum signed by the appellant or his or her advocate and presented to the court or to such officer as it shall appoint for that purpose."*

In the case of *Maria Onyango Ochola and others Vs J. Hannington Wasswa [1996] HCB 43*, the court held that a notice of appeal does not commence an appeal in the High Court from the judgment of the Magistrate's Court. Therefore, contrary to the argument of counsel for the appellant, an appeal in the High Court from the judgement of the Magistrate's Court is only commenced by a memorandum of appeal lodged in the High Court.

From the record of this court, it is clearly shown the memorandum of appeal was filed on the 23rd of April 2018. However, there is a letter dated 3rd January 2018 addressed to the Chief Magistrate of the trial court requesting a typed copy of the proceedings and judgement to enable the appellant to file a notice of appeal. The record of the lower court also shows that a certified decree with respect to the lower court's judgement was issued on the 13th of April 2018.

Section 79 (2) of the Civil Procedure Act provides that:

*"In computing the period of limitation prescribed by this section, the time taken by the court or the registrar in making a copy of the decree or order appealed against and of the proceedings upon which it is founded shall be excluded."*

In the instant case, it is clear that the trial court availed the certified copy of the judgement and decree on the 13th day of April 2018 and the memorandum of appeal was filed on the 23rd of April 2018.

Having established that there is a letter requesting a typed copy of the judgement and proceedings from the appellant's counsel to the trial court dated 5th January 2018 and a certified copy of the judgement and decree was only availed to the appellant on the 13th of April 2018, I am inclined to believe that this is a case time taken by court to prepare a copy of the decree and proceedings should be excluded in computing the time within which to appeal as prescribed under section 79(1)(a) of the Civil Procedure Act.

It is therefore my considered view that this appeal was filed within the prescribed time hence it is competent before this court. In the premises, the preliminary objection raised by counsel for the respondent is accordingly overruled.

Regarding the merits of this appeal, I notice that the 3rd ground of appeal offends order 43 Rule (2) of the Civil Procedure Rules to the extent that it is argumentative and narrative. Order 43 Rule (2) of the Civil Procedure Rules provides that: *"The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative; and the grounds shall be numbered consecutively."*

In the case of *Kizito Mumpi Ssalongo Vs. Seruga Frank Civil Appeal No. 68 of 2010* Justice Tuhaise struck off ground 7 of the appeal which read in part *"yet there was unanimous agreement by the said vendor's family who all endorsed and witnessed the transaction"* as being outrightly argumentative and narrative.

In the instant case, I find the wording of ground 3 that *"thereby coming to a wrong conclusion that UGX. 35,000,000/= was in the lockup No. 6 at the time of locking the same and the appellant is liable for the loss of the same" as* outrightly argumentative and narrative and is accordingly struck off.

I shall, therefore, resolve grounds 1 and 2 and since both grounds are hinged on the improper evaluation of evidence, I shall resolve both grounds concurrently.

A thorough scrutiny of the pleadings and all the annexures thereto particularly a letter dated 17th March 2014 addressed to the appellant Town Clerk shows that the cause of action of the respondent against the appellant was that of detinue.

The essential ingredients of detinue were restated in the case of **Patrick Munyingo Vs Attorney General Civil Suit No. 668 of 1987** as follows:

> *"To constitute the tort of detinue, the following elements are essential: - (a). The property, the subject matter of the case must have been taken away; (b) there must be a refusal to return the good after*

*demand has been made by the Plaintiff; (c) the Plaintiff must be entitled to immediate possession of the good, the subject matter of the suit. For a Plaintiff to succeed in his claim in detinue, he must prove on the balance of probability at the above elements unless they are admitted by the defendant."*

In the case of *Brown University in Providence in State Vs. Tharpe 10CV167 (E. D. Va. Jun. 4, 2013),* the District Court for the Eastern District Of Virginia held that to prevail in an action of detinue the plaintiff must prove the following: (1) he had property in the thing sought to be recovered; (2) he must have the right to its immediate possession; (3) it must be capable of identification; (4) the property must be of some value, and (5) the defendant must have had possession at some time prior to the institution of the action.

Therefore to succeed at the trial, the respondent had to prove, on the balance of probability, the foregoing ingredients in addition to proving that the appellant herein is vicariously liable for the actions of its law enforcement officers.

In the instant case, there is cogent evidence that the respondent made repeated demands to the defendant to return the goods (money) as the letter dated 17th March 2014, the statutory notice and a demand notice dated 22nd April 2014 which were not heeded by the appellant.

However, what is not entirely clear is that on the 13th of March 2014, the respondent kept UGX. 35,000,000/= in the drawer within the lockup and the appellant's law enforcement officers took possession of that money before reopening the lockup on the 10th of April 2014.

At the trial, the respondent presented 4 witnesses while the appellant presented two witnesses. The respondent/plaintiff, who testified as PW1, told the court that when the agents of the defendant came to his premises, they threw him out and locked up the premises in the presence of Kamuli Faith (who testified as PW2) and Mpumwire Zakaria (who testified as PW5). That at that time, he had UGX. 35,000,000/= kept in the lockup. The plaintiff led evidence of the land sales of agreement and tenancy agreement to prove that the said moneys were proceeds from land sale and rent. PW1 also stated that he pleaded with the appellant's law enforcement officers to remove his money which was kept in the drawer, but his request fell on deaf ears.

PW1 further told the court that when the appellant's law enforcement officers opened the lockup on the 10th of March 2014 in his presence and that of PW1, he did not find the money in the drawer. PW1 also told the court that the lockup was only locked and opened by Owamani Tony, an agent of the appellant.

For the defence, DW1, Esther Ahabwe, testified to the court that the respondent had defaulted on payment of the trading license for the Financial Year 2013/14. Due to the plaintiff's default in paying the trading license fee, they decided to lock the lockup from which he conducted business.

DW1 stated to the court that upon reaching the premises, they instructed the respondent to first exit the lockup. The respondent initially locked the lockup from the inside, and the defendant's law enforcement officers added their padlock as a second one. DW1 further informed the court that none of the law enforcement officers entered the plaintiff's lockup or took the money as alleged by the respondent. The testimony of DW1 was

corroborated by DW2, who informed the court that the respondent initially locked the premises with his padlock from the inside, and then the appellant's law enforcement officers added another padlock from the outside.

Upon re-examining the evidence on record, it becomes evident that aside from the respondent himself, none of the other witnesses knew the exact sum of money he possessed or its location within the lockup. Similarly, none of the plaintiff's witnesses, including the respondent himself, witnessed the appellant's law enforcement officers taking the money — a claim that the appellant denies.

In his judgement, the learned trial magistrate held that:

*"The kind of consistency the client has exhibited from 13/3/2014 to the filing of the suit and calling for evidence to show that he had money and that the defendant admits closing down the plaintiff's premises makes this court believe the evidence of the plaintiff on the balance of probability and thus pass judgement in favour of the plaintiff for the sum prayed for."*

I find the trial magistrate's conclusion erroneous for two reasons. Firstly, the consistency of the plaintiff/respondent in demanding money from the appellant does not, in itself, constitute evidence that the appellant had kept the money in the drawer within the lockup before it was locked by the law enforcement officers. Secondly, the admission of the appellant that her law enforcement officers locked the lockup does not equate to an admission that they took the money.

Both appellant witnesses who were among the law enforcement officers vehemently denied to have taken the money and none of the respondent's witnesses testified to have seen them take the money. The appellant led evidence that the respondent initially locked the lockup from the inside and the law enforcement officers added their padlock as the second padlock.

My conclusion is that while it is plausible that the respondent had money in the lockup, the evidence on record does not reveal where the money was kept or the amount thereof, given that the locking and opening of the lockup were carried out by the law enforcement officers in the presence of the appellant and PW1. This is so because the lockup had been secured with two padlocks, one belonging to the respondent and another to the appellant. Had there been money in the drawer, it would have been discovered on the 10th of April 2014 when it was opened. Moreover, there is no evidence to suggest that the lockup was opened earlier by the law enforcement officers and the money was removed in the absence of the respondent.

In the face of the appellant's denial of taking possession of the money, the burden of proof was on the defendant to establish a prima facie case of detinue and any doubt as to whether the appellant took possession of the money should have been determined in favour of the appellant.

It is, therefore, my finding that the evidence on record does not, on the balance of probability, support the claim that the appellant's law enforcement officers took possession of the said money, which is a key ingredient in a case of detinue. In the premises, I find no need to determine whether the appellant is vicariously liable for the actions of its law enforcement officers.

The trial magistrate simply misapplied the law on detinue to the facts on the record, hence reaching an erroneous conclusion.

Resultantly, this appeal succeeds on the first two grounds for the reasons given above. The trial court's judgment and orders thereof are, therefore, set aside.

Each party shall bear its costs in this appeal and the lower court.

It is so ordered.

Dated at Fort Portal this 29th day of April 2024.

**Vincent Emmy Mugabo Judge 29/APRIL/2024**