Luwaga v Attorney General (Civil Suit 48 of 1990) [1991] UGHC 38 (18 April 1991)

Full Case Text

IN THE HIGH COURT OF UGANDA. AT \_K. AMALA

## CIVIL SUIT NO. ^8 OF 1990

SIMON PETER LUWAGA

suing through his next friend JOHN SEBIRUMBI : : : PLAINTIFF versus

ATTORNEY GENERAL : : : : : : : : : DEFENDANT BEFORE:- The Honourable Mr. Justice J. W,. N. TSEKOOKO 'J U D G M E NT.

The plaintiff a minor instituted this suit through his father John Sebirumbi as the next friend to recover general and sperial damages fromthe defendant because of the seizure and detention of his lorry registration No. UWO 182. The lorry was seized on 26th January, 19\$9 and was detained till 28.2.1989 when'it was released.

The only issue agreed upon between the counsel for plaintiff and defendat was:

Whether the impounding of the vehicle was unlawful.

I think that in the course of the hearing of the case the quantum of damages became also an issue.

The plaintiff called three witnesses. The defendant called no witness.

On 21.9.1990 the plaintiff served upon the defendant notice to admit the following facts:

- "li That policemen-operating as police patrol car No.7 and acting within the course of their employment seized and took away the .plaintiffs' Tata lorry•Reg. No. UWO 132 on 26.1.1989. - 2. That the said plaintiff's, lorry was" detained by the police at Naguru Police Barracks from the 26th day of January, 19?'9 to 28th day of February, 1989<

.../2

&gt;e That the pla-int.i£f--through his father John Sebirumbi and his driver Blasio . Musoke--made several damands for the release of the said lorry but the Police Officers at Naguru Police Barracks who was. in charge of the said lorry refused and or failed and or nsglicted to release the lorry until Both February, 1989V nPV/1 John Sebirumbi in. his testimony on oath supported the above facts, in any case. v/hen .the. case came up for hearing before' me on 5-5.1991 Mr. Ntume Nyanzi, learned counsel for the plaintiff drew the courts attention to the notice whose copy was on record. Miss^- Mayanja learned State Attorney representing the defendant accepted^ service and stated that •'those facts are admitted'.1 She thus admitted the facts contained in the notice to -admit aS outlined above.

.2- •

Although the notice to admit fact's does not cite the relevant law, in my view it was processed under 0. X1 Rule of the Civil Procedure Rules. The defendant did not make written admission as set forth by 0. X1 Rule 5 and Form 11 of Appended B to the Civil Procedure Rules but I am satified that the oral admission by Miss. Mayanja in Court is'a perfectly proper admission of these facts. I find that the lorry was impounded by the servants and or agents of the defendant as claimed by the' plaintiff. That the lorry was detained for days and not j6 days as submitted by Mr. Ntume - Nyanzi. I further find that the Police did not release the vehicle until "28\*2.1989\*

On the main issue' of' whether the impounding was unlawful I have only the evidence of the father of the plaintiff (PW1) ano the other two PWs to go.by\*

The State Attorney had on 5. J..1991- and 21\*3.1991 got adjournment for purposes of securing attendance of. a defence witness\* On 9.^.1991 the date when she should have produced the witness\* Neither herself nor the witness attended Court and there was no explanation for the non attendance\* So I permitted counsel for the plaintiff to make submissions on the contended issues. On the issue whether the vehicle was impounded unlawfully I shall refer to the salient portions of evidence adduced.

PV/1 John Sebirumbi testified that in Jamjary, 1989 the suit vehicle UWO 182 was being driven by Musoke PY/2. The Police did not toll him any reason why they detained the vehicle between 26.1.1989 and 28.2.1989- The Police merely told him they were investigating the cause of impounding the vehicle\* •r •. •

PW2 the witness who was driving explained how the vehicle was earning money. He was not asked any question in cross-examination as to why the vehicle was impounded by the Police\*

PV/J Anthony Ndawula the turn boy on the vehicle and apparently the person who was in charge everyday business including collection of business money which he accounted for to PUJ. He testified that ho learnt that the vehicle was taken to Nuguru on 26.1.1989 but was not told why the vehicle was impounded.

On the admitted facts the vehicle was impounded by the Police. On the admitted facts no lawful cause is shown for tho impounding. None of the three witnesses knew any reason why the vehicle was impounded. The defendant has not offered evidence showing reasons for the impounding of the vehicle. In -these circumstances I agree with submissions of Mr. Ntume-Nyanzi and hold that the impounding of the vehicle was unlawful. Surely the vehicle was not being held merely at the pleasure of the Police,

I now proceed to discus? damages.-

In. the plaint, the plaintiff had. claimed' fore shs.120,C00/= per trip being the loss for the period 26.1.1989 to 28.2.198-9 the total of which amounted to shs.4,800,000/= as special damages.

: 4 - ;

On damages PW1 produced a book Exh. P-.-1 ./showihg earnings derived from the vehicle as from 21.1.1989\* The book also shows earnings on• 26.1.1989 the day the- vehicle\* was seized as shs. l60,000/=. As the evidence shows the vehicle had made a trip to tfbarara. The same book shows that on 6.3\*1989 about a week after its release the vehicle fetched shs.120,000/=.

The figures in the books are not consistent or uniform and this was explained by evidence of PW2 and . PW-j that the vehicle •was hired to transport commodities from different places some as far as Kat)ale some as near as any part of Masaka District. The book supports this. Again PW2 explained' that amounts varied according to commodity transported e.g. whether cattle or matooke.

According to P'\*.'1 and he was supported by PVJs 2 and 3 that one. return trip would take two or three days so much so that in a week the vehicle would make on average two trips.

According to PW1 he lost shs.3?500,000/= during detention of the vehicle. On his own evidence by the time the vehicle was impounded he used to earn between shs.120,000/= and shs.1J0,000/= and some times shs.170,000/= every two days. In simple arithmetic this amounts to an average of shs.l40,0Q0/= .every two days.

The witness incurred the following expenses in respect of the vehicle. He serviced the vehicle after every-3 trips. He did not know the- cost of/ the vehicle ..but *P'Ju-j* put i\*c at shs•90,000/= in a 'month. This was supported by PV!3 who testified that actually the vehicle was serviced twice a month and each- service cost 45,00)0=

• ••/5

which equals shs.90,000/= per month which I accept as being reasonable.

*5*

PW1 claimed he spent on the driver. shs<10,000/= per month, and. on the turn-boy 3,000/=. These are PWs 2 and 3 respectively. However *PVJ2* countradic t.ed PW1 • Wzhen he said he earned shs»3,000/= per month. . In re-examination he claimed his salary now is. ,shs.5,000/= which marks an increase.

I hold that in 1989 he earned shs<3,000/= as salary per month\*

Also PW3 earned shs. 3,000/= per month in 1\$'o9\* AH the three witnesses agree that the? customers met the cost of fuel for the vehicle. PW1 spent a further shs.1J,00p/= on other workers. \* • •

Therefore the total expenses each month amounted to shs\*109,000/=\* From the above facts Mr. Ntume-Nyanzi submitted that the average earning per trip, should be shs;. 145\*000/=.,.. That out of 3^ days for which the vehicle was detained the average trips it would make would be 16 taking the imponderables into account. He submitted that special damages should be shs. 14.5,000/= multiplied by 16 trips less expenses. I agree with him except' that I- shall take shs»140,000/= as ...the average earning per trip which when multiplied by 16 trips amounts to shs.2,240,0Q0/= less shs.109,000/= expenses\* This brings the final figure to sh.s,.\*2.,0Jl,.000/=« I accordingly award the plaintiff. s,hs.2,031,000/= as special, damages. Mr. Ntume ilyanzi submitted that this amount should carry interest at the rate of 45% p.«a.

I agree with hip) that this, interest, on special damages runs from 25olfl1990 when suit, was filed till to day® Learned counsel further submitted thpt., because of the unlawful detention of the vehicle for no obvious reasons which caused loss and inconvenience to the plaintiff, the plaintiff should be awarded

.../6

shs.'i, 000,000. = by way of general damages. Ho did not decided cases in support but invited me to use my discretion. I agree pl ainti.-. / rd His next friend vrerv inconvixnie^ico-d^ It is admitted they travelled frequently to police to demand for the vehicle.

In the case.of G. Sabiti vs. Attorney (HCCS 338/90) Ntabgoba P. J. awarded the plaintiff shs.3Q,000/= as nominal general damages holding in effect that this was reasonable since the plaintiff had received lost income for 60 days for which the learned Principal Judge awarded . shs.1,800,000/=.

In the case of Yofesa Wabusa ,V. A. General (JICCS 40/87) Karokara Jo expressed surprise# that ..plaintiff had not claimed damages for non use of his vehicle. In. HCCS Ho\*103/90 N" Karema vs Attorney General this Court awarded the plaintiff shs\*3>000,000/= for non use of his vehicle for *h years,* He y/as also .awarded special damages\*

In HCCS No.1156/88 Joseph Lukwago vs. Attorney General, Ntabgoba P. J. awarded the plaintiff, shs.300,000/= as general presumably damages / , •ijy.' for non.use of his vehicle for nearly a year. He was however compensated for loss of the vehicle by award of higher special damages and other damages. In HCCS Ho.436/89 G. B. Turyamureba vs Attorney General this court awarded shs\*2.,000,000/= as general damages for non use-fl of his. vehicle for nearly 2/z- years. Ke was also awarded other damages. In HCCS 7?8 of 1989 Nyamusisa Mixed Farm Ltd., vs. Attorney General\* Plaintiff lost use of their lorry for one month. Tabaro J.j.warded .the plaintiff shs.. 2., 278,000/= inclusive of shs.1,525,000/= which the plaintiff would have earned by operating four trips between Kampala and Arua, on busness.

file deference was I think general, damages which,is about shs. 753,000/:

These decission (all of which are unreported) show the general trend of the everd of general damages arising because of detention or non user of a vehicle and the actually attendant inconveniences. The last decision offers closer similarity to the present case.

Taking all the circumstances into account I think that shs.500.000/= would be adequate sum by way of general damages. I consider that this is a case where exemplary damages could have been were out if such claim were made.

I therefore enter judgment for the plaintiff and against the defendert as follows:-

- To cial damages in the sum of shs.2,031,000/ $\pm$ with interest $(2)$ as the rate of 45% p.a. from 25.1.1990 when the suit was filed to day (date of judgment). - (ii) Shs. 500,000/= as general damages - (iii) Costs of the suit - (iv) Interest on the decretal sum at Court rates till payment in full.

Eschert

JUDCE. 18.4.1991

$22.4.1991$ at $9.25a.m.$

Mir. Niume Nyanzi for Plaintiff Defendant absent Bakohahoki interpreter Judgment deliverer.

**Bender** J. W. J., Tsekooko

$J$ U D C B. 22.1,1991

$\cdot$ $\cdot$ $\cdot$