Obwangamoyi v Attorney General (Civil Suit 388 of 1988) [1992] UGHC 41 (4 August 1992)

Full Case Text

The Hon, Mr. Justice A. R. Soluade

THE REFUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KANPALA

CIVIL SUIT NO. 388 OF 1988

$JOHN S. S. P. OBUANGAMOYI \dots \dots \dots \dots \dots \dots$ PLAINTIFF

## VERSUS

ATTORNEY GENERAL ............................ DEFENDANT BEFORE: The Honourable Mr. Justice J. W. H. Tsekooko.

## J U D G M E N T

In this suit the plaintiff sued the Attorney General by Virtue of the Provisions of the Government Proceedings Act and claims for (a) General damages for conversion (b) Exemplary damages (c) recovery of the suit vehicle or its open market value.

Judgment in this suit was delayed because the defendant attempted to adduce evidence belatedly proving that the fraudulent. This has not materialised in that claim is **799** no evidence/brought forth in support.

The essential facts upon which the plaintiff's claim is based are pleaded in paragraphs 4 to 8 of the plaint and I quote them here:

"4 Defendant has, since around March, 1986 been wrongfully in possession of the said motor car (Reg. No. UXE 541); and the plaintiff brings this action in detinue.

"5. In or around March, 1986 one Commander Kiwanuka and others of NRA wrongfully seized and commande:ered the plaintiff's said vehicle which was lawfully parked at the plaintiff's home at Pajule, Kitrum.

$\ldots$ $\ldots$

- "6. Despite memerouc and. persistent demand .for the return therefor, made to the said Commanders and the defendant, " the' "de\_fendi-m tr licrsr^rnngfu1~1;t"fa. il-e-d',- "ne-gTected~and~or~ refused to deliver up the said motor car. - "7. By reason of the- said refusal, the defendant has thereby converted the ■same, tr heir own use and wrongfully deprived the plaintiff thereof, by reason whereof the plaintiff has suffered loss and damage. - "8. The plaintiff avers that th'? officers of the NBA were at all material times acting in the course of and within the scope of their duties as agents of the defendant."

At the commencement of the hearing three issues framed are:

1. ,"hether or not the plaintiff has lost the suit property

- 2. '.hether the defendant is or is not responsible for the loss. - 5. If the answer to 2 is yes, what remedies are available to the plaintiff.

The plaintiff gave evidence in support of his claim and called two other witnesses w'.i supported him. The defendant did not call any witness but tendered in evidence a letter from the Secretary for Defence.

On the first issue there is overwhelming incontravertible evidence supporting the plaintiff's claim that the vehicle is lost. ' The then Secretary for Defence in his letter dated 3rd November, 1983 to the plaintiff now marked as 2xh. P.4 stated in Subparagraph (c) of the second paragraph thereof that

"As a result of this investigation, 'Ac following have been established:-

- ------------ ---------------------- " - (b) ...... - (c) that your vehicle can now be treated, as having got irretreavably lost." This is in agreement with evidenc.e of plaintiff, P'J2 and Pv/J.

I therefore find as a fact that the plaintiff has lost the suit property, that is, his motor vehicle Reg. No. UXE 541.

## r~ Hu i 88bE

On the second issue the evidence available is as follows: The plaintiff testified that in August, 1985 he sent his vehicle to his village home at Pajule in Kitgum District because of the situation in Kampala following the Coup detat of 27th July, 1985- He visited his said village home during March, 1986 and learnt from PW2 Desderio Kifumbu, who was his builder based at plaintiff's home since 1979 and also from PW5 George William Lugai, an elder on the village and plaintiff's linkman that plaintiff's suit vehicle was taken by one Commander Kiwanuka for use by NRA soldiers who had camped at Pajule. The vehicle was to assist soldiers in their normal duties of transport and in persuing the fleeing UNIA soldiers. According to the plaintiff he found many NRA soldiers at Pajule and the soldiers were actually living happily with the local population.

PW2 and PW5 informed the plaintiff that Commander Kiwanuka had promised to return the vehicle or cause the plaintiff to be compensated if the vehicle got lost provided the plaintiff produced • vidence of ownership of the vehicle such as the

......

registration Book. The plaintiff v,'ho ? ~ a lawyer and had been in Kampala when NRA took e '-r iov..rnmc^t in January, 1986 was definite that the soldi'-, r .. •? he found at Pajule and stayed with for *7:.* weeks •'.-.re NPA soldiers dressed in the same way as the rest of NRA soldiers used to dress at that time.

Thus some wore military uniforms. Others wore partly military uniforms and partly normal civilian dresses. Those soldiers .used to sing NRA songs.

The plaintiff returned to Kampala and on 15th April, 1986 he forwarded a letter and. the Registration Book (Exh. P.1) to Commander Kiwanuka through ?V]J who had very friendly relationship with Commander Kiwanuka. Kiwanuka did not respondent. R0bel insurgency that broke out in North in August, 1986 made it impossible for plaintiff to check on Kiwanuka through his (plaintiff's) home. Meantime plaintiff contacted Commander Mugume at military Headquarters about the vehicle. ?,.ugume promised to investigate before replying to the plainriff. Contacts for settlement of the loss of the vehicle continued between the plaintiff- and the Ministry of Defence till §rd November, 1988 when the then Secretary for Defence wrote to the plaintiff a letter Exh. P.4 saying settlement out of court was not possl'\*le. So he advised the plaintif to seek other ways of settling the dispute. Pausing here for a moment it should be pointed out that Exh. P.4 contents show that until 3rd November, 1988 both parties expected to settle this case out of court.

PW2 and PVJ3 supported the plaintiff on virtually every aspect about what happened in Pajule in respect of the vehicle and the existance of NRA soldiers there. According to the two witnesses

4/8/1992 at 10.00 a.m. Nshimye for plaintiff. Buy\* ndo for d e fend ant. Ssenson.^a c <urt clerk. Judgment delivered in presence of above in chambers

as open court.

\*Z / • ...... /. 1- - Lt J. W. N'.: ^SEKOOKO J ii D G E

V8/1992.