Musoke v Departed Asian's Property Custodian Board & Another (Civil Appeal 1 of 1992) [1992] UGSC 24 (30 June 1992)

Full Case Text

-X and seaton, sj.s.c.) *~1* CIVIL APPEAL NO. 1 Ox' 1992 £ T W E E N **A** JOSEPH MUSOKE APPELLANT ! S,\_<2 r !\A O "aplJBLIC °F W\*"\* *\ /* ' in TEN SUPBffiJB COUi<T 0? UGANDA AT MjiNGO *J- \-L-\AjQi* (CORAM:, MANYINDO, D. C. J., PLATT, J. S. C.

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AND

1. DEPARTED ASIAN'S PROPERTY •CUSTODIAN BOARD

RESPONDENTS 2. ANGUSTINE MBUGA

> (Appeal from & judgment of the Higa Court of Uganda at Kampala Mr. Justice G. M. Kato) dated 3-rd September 1991 in H. C. C. S. No. 1355 of 1984)

## JUDGMENT OF SLATON,, J. S. C.

The appellant (original Plaintiff) is a business man. He sued the first and second respondents in High Court Civil Suit No. 1355 of 1984 in Kampala. (I shall hereinafter refer to the parties by their designations in the High Court suit.)

whom the plaintiff paid shs. 325/= per month. Of the two rooms in the building occupied by the plaintiff, one was used as a shop. The other served as a sleeping quarter. building on Plot No. 18 Egin Rd. In 1973 the- plaiptiff rented a in Masaka Town. It was owned by an Asian, Ratital B. Sadrin, to

In 1974 or 1975 Mr. Sadrin left Uganda. Thereafter the Plaintiff effect from January, 1975 the 1st defendant had taken over the responsibility of the building and all the rent should in future be pc^id to the 1st defendant. received a letter from the 1st Defendant. It stated that with

From January 1975 onwards the plaintiff paid rent to the 1st defendant. In January 1984 the Plaintiff went to Jirfe. He left behind his shop and stock-in-trade in the care of his assistant Joaph Mukasa.

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Some of the shop was re-allocated. Other properties were taken by officials of the 1st defendants. On 17/1/84 one Isingoma,.ari official of the 1st defendant, y accompanied by Police Constable Kiwanuica and some others entered the premises. They removed the plaintiff's properties from the shop and &he sleeping quarters which they locked and then they departed.

On hearing of these events, the plaintiff,returned from Jinja, He found his shop locked and was unable to gain entrance. On 7/2/84 the 1st respondent requesting enlightenment in regard to these matters. Executive, representative in Masaka and requesting explanations of the actions above described. He obtained no satisfactory reply. The plaintiff followed this up by visiting the 1st defendant's a letter on his behalf was written by Advocates Mayanja & Matovu to

On .17/7/84\* another letter was sent to the 1st defendant by the plaintiff's advocates. business and personal property that had been removed by the 1st It also gave notice of intention to Subsequently H. C. C. S. No. 1355/84 was filed. The letter enclosed a list of the plaintiff's defendant ' s servants/employees. sue for 500,000/= general damages and shs 5,876,700/- special damages.

severally or jointly against the defendants for:- In the prayer of his plaint, the plaintiff asked for Judgment

- (a) shs. 11,487,000/= (new currency) being the value of his properties unlawfully taken and converted; - **' (b)** shs. 100,000/= old currency per month from January 1984 to 1 April, 1987 and thereafter shs. 100,000/= new currency per month till Judgment being loss of earnings; - (c) An order th^t he was the lawful tenant in the said shop;

(d) Costs of the suit.

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> no defendant; the plaintiff was occupying the premises temporarily without any certificate of allocation although he had rent he had to pay. a form indicating what Prayer (c) of the plaint was denied. . The learned Judge held that tenancy agreement existed between the plaintiff and the first

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claim as regards liability for conversion of his properties and awarded the sum of shs. (new currency) as special damages against the 1st defendant. Prayer (b) for loss of earings was disallowed. granted against the 1st defendant. The suit against he 2nd aefendant was dismissed with costs. 56,866/= With regard to pnayer (a), the learned Judge upheld the plaintiff's Prayer (d) regarding costs was

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The plaintiff has not appealed against the decision regarding the absence of a tenancy agreement (prayer 0). His objection is with tegard to the decision regarding the other prayers'in the plaint. The memorandum of appeal sets out four grounds as follows:

- 1. The trial Judge erred in law when ne held that in assessing damages in the tort of conversion, the appellant is entitled to the value ol the property as at the time of conversion rather that the current value of the property at .the 'property at the time of Judgment. - The damages awarded to the appellant for the value of his shop commodities were entirely inadequate being too small and the Trial Judge applied wrong principle. - 3. The trial Judge erred on facts when he held that the appellant had not proved loss of earnings. - was r The trial Judge erred in holding that the second respondent was not responsible for the loss suffered by the Appellant and the trial Judge wronp- in awarding his costs as against the appellant.

I find it convenient in this judgment also to deal with the first two grounds together, as they were combined for argument, by counsel for the appellant. Then I shall deal with ground 4 (ground 3 having been abandoned).

The grounds one and two raise two questions. The major one is; What date or time is to be used for the valuation of properties in order to assess the'measure of. damages for the tort of conversion? The rninop. one is-: what was. the proved value of the nronerties that were converted in the instant case?

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. /trial The learned/judge in his Judgment stated that thedate or time to be used for valuation of the properties is the date of the conversion•

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He accepted'as good law the case of CAXTON *V.* SUNDERLAND U1934) E. R. 585; SACKS V. MIKLOS (19\*^8) 1 All E. R. 67; MUNRO V. WILMOTT j; (19^8) 2 All E. R. ^983;' S0LL0.7AY V. MCLaULIN (1937) A. C. HENDERSON V. WILLIAMS (189\*0 1 ■<. B. 521, 532. -2.7 (P»C.) and during the hearing of this Appeal; ROSENTHAL V. ALDERTON (19\*\*6) 1 All A. C. 178, 192 cited by counsel in the.closing addresses. The Judge's attention was not drawn to the ether cases cited to us

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The learned Judge held in his Judgment (at p. 75 of the record) that:- .

> ii ''The deasure of damages in conversion is the value of the subject matter at the time of conversion. In • this case the damages the plaintifi is entitled to is the value of the property which were in the sleeping room and the shop ...

Counsel for the plaintifi submitted th .t tne learned trial Judge failed to take into account tne qualifications to the general principle outlined.

the reneral principle that the measure of damages is the value of the properties at the time of the conversion. They do contain- 'provisos', exceptions or qualifications to the general principle. In an appropriate case the plaintiff may I be entitled to additional damages if the goods have risen in market r value between the converstion and Judgment. SACKS V. MIKLOS (19\*^8)2K. B.23, (19^8), All E. R. 67', C.^. The case arose out of a gratuitous storage by the defendants of house furhiture belonging to the plaintiff. From 19\*tO to 19\*0 the plaintiif used to visit the first defendants\* house. Thereafter he ceased visiting them and never communicated with them, or kept them informed of his address. In 19\*0, being in need of the room where the furniture was stored, the defendants wrote to the plaintiff twice at the address obtained from his Bank Manager. telephone him. Ass all efforts of communication had failed, the defedents sent the .furniture to firm of auctioneers, the second defendants, 5/... The authorities cited appear to agree on An example of this was They also attempted more than 3once to

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- 6 list as being something of an afterthought as it was complied some 7 years after the incident. With due respect to the learned counsel, I do not see anything suggesting that the plaintiff's list was complied 7 years late, the plaintiff filed this case in 1984 when the cause of action arose and his plaint was accompanied by the list of items which were locked up in the shop and sleeping room; the list tendered in Court was substantially the same as annextures to tne plaint except the prices which are different from the annextures and the reason for the difference was given by the plaintiff as being to match the items witn the current prices."

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So thgre was some evidence. It was for the learned trial Judge The learned Judge did accept»the plaintiff's evidence as to the quantum of goods lost. He did not, however, accept the evidence as to their value, as being the measure of damages for the ' tort that had been committed. The learned trial Judges' views on this aspect of the claim were set out (at pp.73~74 of the Judgment) follows:- • as 'to believe it or not (bearing in mind that special damages must be strictly proved).

" ,J\*he next issue to be considered ia the value of the goods lost or taken away by 1st defendant's servants. The plaintiff fixed the price of the items found in the shop at ten million, two hundred and eighty fine thousand shillings (10,2'85,000/=) and those found found in the sleeping room at one ■million, two hundred and two thousand shillings (l,202;000/=) ..."

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based on inquiries he had made from several shopkeepers selling area. those shopkeepers to testify. Nor did he adduce invoices or otner documentary evidence in support on this point. It appears from tne record that tne plaintiff said his valuation was - similar properties in the Masaka Unfortunately he did not call .

this evidence of the plaintiff's regarding the 1991 value of the properties. counsel criticised He therefore took the 1984 figures as being appropriate basis for the assessment of damages. Such criticism was In his closing address at the trial, defendants\* accepted as appropriate by the trial judge in his judgment' (at p 74).

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At the hearing of this appeal, it was submitted by Counsel for the defendant that the plaintiff should not have been allowed to adduce evidence as to the increase in value the goods because this was not pleaded in the plaint.

It is clear that special damage, as was claimed by the Plaintiff to have been suffered, is such a loss as the law will not presume to be the consequences of the defendants' act. . Such damage, as the learned editors of Odger's 'Principles of Pleading and Practice," 21st ed. point out; (at p. 164 $\lambda$ :-

> ".... depends in part, at least, on the special circumstances of the case. It must therefore always be explicity claimed on the pleadins, and at the trial it must be proved by evidence both that the loss was incurred and that it was the direct result of the defendant's conduct...."

It appears from a perusal of the record that in the amended plaint, the paintiff did not explicitly claim that the value of the properties taken from his store in 1984 had increased in market value by 1991. Nor did he explicitly claim that he $n_3d$ lost the profits which he would reasonably have expected to gain as a consequence of the locking up of some of his properties and the taking away of other properties by the defenuants servants/ employees.

) What was therefore the task of the Judge in the instant case? It was to examine the evidence in order to ascertain whether or not theere was anything which justified a departure from the general principle that the time of conversion was the relevant date for the eva-

luation of the properties converted. Did the learned Judge fulful this task? He appears to have done so in the above passages which I have quoted from his judgment:-

> " I would accordingly reject grounds one and two of the Appeal. I now turn to ground four."

In his amended plaint, the plaint, the plaintiff averred that all his household goods and shop commodities were unlawfully taken and converted by the defendants to their use. The learned Judre in

his judgment accepted that the first defendant had committed the acts complained of; but he rejected the. alleged guilt of the second defendant. He stated (at p.73 of the record) as follows

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" Regarding the 2nd defendant, there is no iota of evidence establishing that he was responsible for any loss of the plaintiff's property and as such he cannot be held liable for the loss of tht property. " •

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c^urt to review whether\*there was j ust-. fication for the learned Judge's finding of liability on the part of the second defendant. the evidence in order to determine As this is a.first appeal, it is tne duty of the

According to the evidence on record, the plaintiff on learning in Masaka and asked Mutambo David, who was -in charge of the first The latter told the plaintiff that the shop had been removed from him and given to another person, whom at the time he did not know but later learnt he was the second defendant, also testified that he asked David Mutambi (presumably the same Mutambo David) about his property and he was told that: a government servant.. The plaintiff defendants' affairs, why his shop had been locked. z of the eviction on 17/11/84, went to the first defendants' office

> "Since I was allocated the shop when there were property therefore a new allocutee .should take it with all tne property."

Mukasa went out,, leaving behind all the Plaintiff's shop. nt the time there was also the-property of a tail^ress Regina Namukasa which was kept in the shop. Isingoma locked the shop with all the things inside. Regina Namukasa was PWJ. She testified that she was by the plaintiif to do tailoring in his shop since 1982. to leave the shop.. properties that were in the two rooms of th plaintiff's shop. defendant's employee came to the shop with two men and ordered him permittee^ In January On 17/1/84 he was present when Isingoma, tne first Joseph Mukasa (PiVfi)in 1984 was working as a salesman in tne

9/ a stool. After learning tne shop had been re-allocated, she went to Kayisi-, who was then looking after the shop for the hew occupant, and he allowed her to take out her property in the presence of a policeman and some other people. ■1989 she had there a sewing machine, some customers' clothes, bench and

tne second defendant 15/2/84. out the things which were in the snop,. articles. The second one of the former plaintiff took some of • The second defendant did not-He denied having co nsented any of the plaintiff's property. defendant as well as his agent, one Kayizi, signed for these defendant uteo testified that when he entered the articles tenants of the official of the first defendant, what happened to those things later on. signed for\* were there, but later on the things and some were taken oy Isin.goma an know The second defendant testified that the shop from whi«h the plaintiff was evicted was handed to him by Isingoma, defendant's employee (who was deceased at the time- oi the trial) on' at the time a policeman P. C Kiwanuka 'was .present, who counted Kiwanuka and second

In cross-examination, the second defendant changed his testimony v and alleged that it was Kiwanuka, not IsingOMu, who counted thio' things in the shp. He also denied'that he was present when the list o\*f properties in the building was' being complied.

that after the shop had been allocated' .to the latter, both of them went with some other rersons to tn^- shop with Isinroraa and Mayambala, employees of the first defendant. Mayambala unlocked the shop. Insiue were second defendant, P. C. Kiwanuka, "sqme few things'1 a friend of Kayizi. which were recorded and signed by Kayizi, the P. O. Nakimuli; and one Kayemba John, Kayizi (Dz/2) the friend and agent of tne second def endant, tes tified

They prepared two lists, one for properties found in the shop and one for properties found in rhe back-room. After that, Mayambala looked wheelbarrow had it loaded with tne- properties and took th^m away in the company with Isingoma and the second defendant. Kayizi then locked for a

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the shop. ■About 1J4 months later the second defendant gave Kayizi some removed.from the room some of the properties therein. A list of those things was compiled and they also were taken away to the first defendant in a wheelbarrow. box containing some things, for which she signed. policemen who came and broke the back door in Kayisi's presence and A lady (P. VJ) also took zaway a sewing machine and a

The last Witness was David Mutainoo (DA'4), a business man-who in He testified that when the served with a notice to quit because of non-payment of rent, he locked his shop and disappeared. Latc-r on his shop was opened by tne plaintiif's agent. The 'goods insiue were orougnt to Muiambo's Later on the plaintiff came for his property, They were by Isingvma to the plaintiff who took tnem away in a wheelbarrow. locked Much of his evidence was therefore hearsay. employed by the first defendant. 1^84 was Mutambo admitted he was not present when the plaintiff's store w^s or when- it was opened. which included domestic things but not for selling in a shop. given office, who stored tnem. plaintill was

The learned Judge found that \* the evidence given by the defence.' witneses was materially contradictory and could not be.taken seriously. He accepted the evidence given by the plaintiff us truthful. He gound the items listed by the plaintiff in Lxhs. p\$ -and po to oe his property which was the shop and sleeping room -respectively at the time the 1« premises were locked by the first defendant's agents .or servants.

evidence. was responsible for any loss of the plaintiff's property and tnerefore he could not be held.liable.. of tne fact th t tnere was I believe that finding of the learned Judge to be justified by the "no idta of evidence" establishing that he I do not find any reason to' say that he erred in his findirio-

Where I.am in some disagreement with tne learned judge was in his awarding costs to tne second defendant as against the plaintiff. Learned Counsel ior tne plaintiff submitted tn.t,the costs should h ve been ordered t^o paid by the Landlord, i.e. the first defendant.

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who put the second defendant in possession; taat all the confusion was defendant's costs as well as the plaintiff's. , - caused by the first defendant, so tne latter should pay the second

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the plaintiff's claim was that the defendants purchased part of the land which was for burial grounds^and that •» hut he was entitled to recover this from them. It was held by Odottki J. (as he then was) that the plaintiff had a ri^ht to sue r.hem severally and jointly- because a common question of law would arise if separe suits were brought a^ainst/defendants In Daniel Sempa Mbabale V. W. K. Kiza Sc ors. (1985). H. C. B. \*+6 (Un rep) "

Order 1 Kule (3) ••• of the Civil Procedure rtules provide that:-

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" all persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act of trans ction or series of acts or transaction is, alleged to exist, whether jointly, severally, or in tne alternative, where, if separate suits were briugxit against such persons, any common question of law or fact would arise."

It was incumbent upon the plaintiff in the instant case to prove an act of wilful interference, without lawful justification, with his property in a manner inconsistent with .his right, whereuy he was deprived of the use and possession of it.

ful by the teamed Jud<?:e, that he believed what he had been told by his salesman Mukasa (PW2), i.e. that there had been wilful interference with When he involving the eviction, employee, that his shop had been re-allocated and th..t a new allocate© should take it with all the property. It must be inferred from the plaintiff's evidence, accepted as truth his properties that had been left in his shop. he was told by Mutambo (DW4), then the first defendant's

The plaintiff would not know whether the properties were taken away detained and used by the first or second defendant or by both. In it reasonable for him to sue both defendants? I believe he either failed to direct himself to tnis eil'ect or, 12/.... I the circumstances, was That was the question the learned Judge had to ask himself. With respect, If he did so direct himself, he misdirected himself on the answer he should give to the question.

Under of the court. Costs should normally folio.- the event and, in theinstant case, the second defendant was successful as he was found not to have been guilty of conversion. However, the plaintiff could not be^ blamed for having sued the second defendant. The plaintiff I agree with counsel for the plaintiff that the "corfusinn:' was caused by tne . first defendant; he should therefore pay for it. ^.2? of the Civil Procedure Act, costs are in the discretiv n / was placed in a dilema not because of any actions of his own.

I would uphold ground four of the appeal. Accordingly I would allow the appeal in part. For tne reasons earlier stated, I would set aside the Judgment of the Lower Court in so far as concerns the measure of damages. I would vary the Judgment as to costs by ordering • that the costs of tne second defendant of this appeal and in tne Court, below be paid' by the first defendant.

DhT^D at Mengo this JOth day of June, 1992..

sgd: jjJ.d. JEhTON Justice of the Supreme Court

I Certify\* that this is a true copy of the original record.

r"' B. K.3. Bnbl'WfilRk JU"16TRAR SUPRdP.i COURT.

### IN THE SUPREME COURT OF UGANDA

# AT MENGO

(CORAM: MANYINDO -DCJ, PLATT, J. S. C., & SEATON - J. S. C.)

# GIVIL APPEAL NO. I OF 1992

#### BETWEEN

JOSEPH MUSOKE ar in in in in in in in in in in in in APPELLANT

$A$ N D DEPARTED ASIANS PROPERTY $1.$ CUSTODIAN BOARD

**RESPONDENT** $2.$ AUGUSTINE MBUGA :: :: :: :: :: :: :: :: :: :: ::

(Appeal from the Judgment of the High Codrt of Uganda at Kampala Mr. Justice G. M. Kato, dated 3rd September, 1991.)

### JUDGMENT OF MANYINDO - DCJ:

I have read the Judgment of Seaton - JSC, in draft. I agree with it and as Platt - JSC, also agrees the appeal is allowed There will be an order in the terms proposed by Seaton in part. $J. S. C.$

DATED at Mengo this 30th Day of June, 1992.

#### S. T. MANYINDO sgd: CHIEF DEPUTY JUSTICE

I certify that this is a true copy of the original record.

B. F. B. Babigumira Registrar Supreme Court.

# THE REPUBLIC OF UGANDA

IN THE SUPRriE COURT OF UGANDA AT MENGO

CORAM: MANYINDO, D. C. J. PLaTT, J. S. C. & ^aTON J. S. C.

CIVIL. APPEAL NO. 1 OF 1993

B E T W E. E N ' 4

JOSEPH MUSOKE APPELLANT

AND

1. DEPARTED ASIANS PROPERTY CUSTODIAN BOARD

RESPONDENTS

2. AGUSTINS MBUGa

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(Appeal from, a Judgment of the High Court of Uganda at Kampala (Mr. Justice G. M. Kato), dated 3rd September, 1991)

HIGH COUzT CIVIL SESSION NO. 1355 OF 198\*t

JUDGMENT OF PLATT, J. S. C.

I concur and have only this to add. Recent English decisions have continued to exemplify the principles stated in the Judgment of Seaton J. S. C. in relation tne measure of damages in conversion **0** see( Hillesden Securities Ltd Dated at Mengo this 30th day of June, 1992. vs. Ryjak Ltd (198J)2a11 E. R'. 184).

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sgd: \_ H. G. PLATT Justice.supreme court,

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I certify that this asa a true copy of the original redor^.

- - B^F. B.'. BaBI^UMIkA • REGISTRAR SUPREME COURT