[1992] UGHC 32

The Hon. Mr. Ag. Justice Egonda- Ntende

THE REPUBLIC OF UCA DA IN THE RUTH COURT OF UCANDA AT KAMPAL. CIVIL SUIT NO. 850 OF 1989

I)

UNITIVE DAMAGES

PLAINTIFF. APDUL KARIM WINTI .......................................

> VERSUS the distance of the property of the

**STORNEY GENERAL** DEFENDANT. AUFORE:- The Honourable Mr. Justice J. W. N. Tsekooko

## JUDGMENT

The plaintiff Abdul Karim Winyi claims from the defendant as Attorney General of Ugonda in representative capacity (a) return of four chimpanzees on (b) pay of the value of the four chimpanzees at the time of judgment (c) special damages amounting to Shs. 139,700 representing cost of return airticket (d) general damages, (e) exemplary damages and (f) interest.

The claim arises from seizure and detention of the four chimpanzees at Intebbe International Airport by servants or agents of the defendant which chimpanzees were in process of being exported to Dubai by the plaintiff on 6th January, 1989. Consequent upon the seizure of the chimpanzees, the plaintiff was prosecuted for alleged contravention of Sections 14, 23. and 90 of the Game (Preservation And Control) Act before the Chief Magistrate of Mpigi Mr. Katutsi, at Entebbe in Entebbe Court Criminal Case No. 12 of 1989. He was acquitted of the charges. It appears the plaintiff was not actually proceduted for contravening Sections 16 and or 17 of the Act.

The plaintiff who testified as IM1 called 3 other witnesses, i.e., Alabi Drali Alubino (PW2), Enock Henderson Okanya (PW3), Karim Abdu Monday (PW4), Dr. Tabu Wani Ggombe (PW5) and the last was Antthony Ngongo Mutupia (FM5).

The defondant celled Ben Benkoo Unemcan Kadi (DW1), Joseph Kagere Evranda (DM2) Ohua Moses (the 'Cricf Came Marlen (DM2), and Justus Tindiprulayo (DN4). .........../2

At the beginning of the hearing on 26th February, 1990 four issues ay eed upon ware. (I permitted the 2nd issue to be amended during.submisgione):

i. Whether the defendant's scryants seized the four chimpanzees.

- . Whether the seiture of the said animals by the defendant's was unhaming this was amonded to read whether the detention of the mimals by defendant's servents was unlawful. - 3 Figure the plaintiff's bringing into the country of the animals (chimpensees) was unlawful. - 4. Is the phaintiff outithed to reliefs (damages) as prayed?.

The hearing and reachasion of this suit dragged on for nearly one and If your hommes of many adjournments caused largely by netty execuses ly one side or the other. For instance after the close of the case by the derence it was agreed that submissions would be made on 24th May, 1991. On that day even after uniting for sometime there was no communication whatsoever received by court about the absence of the defence lawyer. Consequently I was moved by counsel for the plaintiff to allow him make submissions in the absence of defence counsel which was done. As I was iracting judgment the defondant sought leave to address court which was

Submissions. defence counsel were made on 17th granted. September, 1991 after which I proceed on long Criminal Sessions, Kabalo.

I can give the answer to the first issue straight away. Defence ovidence and particularly DW3, the Chief Game Warden, a servent or agent of the defendant admitted that he caused the four chimpanzees to be seized and they were seized. So learned defence counsel quite natuurally did not dispute the first is sue. Therefore the answer to the first issue is in the affirmative. That is to say the four chimpanzees were seized by the servants of the defondant.

It appears to me more logical to deal with the third issue before dealing with the second issue in the circumstances of this suit.

$...$ ......../3

plahiti'ff (£W1) in his• examhiatior.-iii-chief testified, how ho secured a Liaz'i'.^u feu- the chimpansoes in. Dubai In 1983 lie .purchased the 4 cl.1. panzoes from one Sit.iayo Tiitro in the Pepublic of Zaire\* He 'was to soil thorn to. Messrs'A? j'abi-i in Dubai in theUnited Arab -Emiratos at the value of U3\$ *-6.0?* ⁰⁰⁰ for. each, champanzeoc# Ho was t^o doliver thorn to Aabai' when the ' aaimals'were still -young to enable the purchaser to tamo thorn as. '.•boy grow wo. 'Criminals of requisite documents relating to the movement . T .the animals in Zaire wore. not. available during the trial of this suit. iut expl-anation was offered for. their absence\* They were seized at Entebbe Airport and were not returned to PW1> This was hot challenged by-the 'dbl'cnco; Only a portion of Exh. P«7 was challenged somehow\* In the result their photocopies, were tendered in evidence. Exh. P.1 dated. ¹6th. Doccmber, ¹⁹⁸⁸ is tie export permit granted by Zairua-Authorities. It was received at. Liahhd • hi Arua where Customs & Exorcise Department Officials of-Uganda .stamped that'Form on 2tst December, 1?38.- Exh/P.2 is a veterinary Certificate issued by< Zaire'Authorities on 16th December, 1988. The same was stamped by Ugandan Customs & Exercise officials at Lia and at Arua on 21st December, 1988. Exh. P.3 is Zaire transit Terra completed on'16th December, • 49'80-and also stamped at Lia and,Arua by Ugandan' Customs on 21st • December,• 1983. Similarly stamped- are Exh. P\*4 nnct Edi. P.⁵ . from Zairean and Uganda Au"v -oritios associated with the 4 chimpanzees. Exh. P.1 to P»4 are in ih-ench which DVif4''interpreted' for court. Ho explained their, functions. . E'.g. Lish translations are Exh. P.1A to 'Exh.-P.4A.. Exh. P.5. is'.ill both langiiagos• • • ^&gt; . ■' ■■•••■' , :.-

The authenticity of these.documents was. pot really challenged• b}^r the . ^c -ifenco-k I4r« Ileses Obua (DTT3). who' is the Government Chief Warden and. the . cvul uasive person-on the matter- centended in his evidence in chief that ..•urL.0.-;oB P.1- to P#5 are . ot vetlied according to the format given to him by Ch.fES opctretariat based in Switzerland\* (CITES mpazis Convention on

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Standard Hab in Brinnered Species of Wild Pauma and Flora). He Moreover asmosted that by the time he gave evidence on 26th March, 1991, Terminal and not accorded to the convention and therefore the convention was min part of the laws of Uganda. He also contradicted himself in cross communication the he stated that he had not looked at the forms previously before the handled Finds Rail to F.2. He further agreed that Exh. P.3 is a traffic Trackin form and could be or was relevant to animal traffic with mail. What Exh. P.4 was a declaration form for Export for Zaire but not if same purpose as Upunda: Game Form G. He accepted that Exh. P.5 is rolument for customs purposes. Be it righed that PM4 produced English tim Mations of Exh. P.1 to P.4. Those was no challenge. In any case FI4 Justice Findigentwaye, does not doubt the authenticity of Exh. P.1 to P.5. He had resorvations about the Ugandan documents.

I should point out that in fact Exh. P.5 is a Ugandan Form and was completed by Ugandan officials. Further the stamp used at Lia Customs cert reeds "Uganda Customs & Execise". The stamp used at Arua is an old one apparently as it has "EA" on it though concelled. I think E. A refers to "East Africa". On Issue No. 3 Mr. Ayigihugu submitted that on the evidence of the

documents available, I should answer the issue in the negative. He thereby mount that the importation of the 4 chimpanzees in Uganda was not unlawful. Mr. Turyasingura, learned Senior State Attorney for the defendant submitted that the importation was unlawful. That by the time Exh. P.4 (probably P.5) and P.6 were processed and issued the chimpanzees were already in Ugenda. That dates on the documents show that the plaintiff got permission in Uganda when time chimpanzees were already in Uganda.

It is in my view unfortunato that PM5 one of the authors of Exh. P.6 this not cross examined to establish exactly where he had examined the chipenzees prior to 19th December, 1988. A perusal of Rule 2 as amended We Statutory Instrument 1975 No. 97 (reproduced later) and S. 16 (2)

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of the Game (Preservation and Control) Act, shows that importation is prohibited unless certain conditions are fulfilled.

Clearly there is no dispute that on the evidence available the plaintiff acquired the chimpanzees properly and he got the necessary ascumentary authority from Zaire. The Zaire side of the transaction is clear.

Mr. Turyusingura strongly submitted that no proper formalities were cone though before PW1 brought the chimpanzees into Uganda: He relief on Statutory Instrument 226-3: The Game (Importation And Exportation For Transit Purposes) Rules which were made under S. 17 of the Game (Preservation and Control) Act. Mr. Turyasingula referred to the old R. 2 of the S. Instrument < which specified Customs Forts though which importation of animals such as those animals mentioned in schedule 11 to the Act are to be imported and exported. I should observe that by writting Exh. P.7 (referred to in detail later) it seems to me that DW3 waived any irregularities that may have occurred previously. Secondly I don't know whether item No. 18 (chimpanzee Authropopitheous) is the same chimpanzees the subject of this suit. I say so because there is chimpanzee Pan Schweinfurthi listed as item 2 in Part A of the first schedule to the same Act which appears to be different. Section 2 of the Act defines scheduled animals" and "non-scheduled animals". That definition appears to me relevant in the operation of Rule 2. In the absence of expert avidence showing that the chimpanzees which are the subject of this suit are the ones falling within Sections 16 and 17 and Rule 2 aforementioned it does not seem academic to ask whether the animals impounded and detained are those chimpanzees which in fact and in law should have been impounded and detained. In fact DW3 in corss examination showed that he did not know their origin. Yet he is the export. And as I said earlier it is not without interest that the plaintiff was presecuted for contravening the Sections of the act different fromm Sections 16 and 17 of the same Act. Further still the actions such as seizure of animals on 6th January, 1989 by Captain Karyegesa appear questionable. He dosen't appear to fall in the category of authorised officers for the purposes of the Act and Rules made thereunder.

Le lem of Sonier J'abo Attorney Turther conten al that Lia through The animals were imported is not listed in the first column of the First schelle to the Statutory Instrument. In this respect the State Attorney doesn't a year to believe PW2's evidence that Lia was created as/port/post lawer by the Government. Hence non-inclusion in the schedule. The difference in the works used on the two stamps - one used at Lia and the other at Arun appear to support PW2. There is no credible evidence showing that the stamp bearing Uganda Customs & Exocise - "Lia"is falsefied.

Mr. Ayı, these cubritted that an interpretation of S. 17 and S.1. 16-3 shows that the latter was made contrary to S. 17. That S. 17 refers to one place which is Entoble Airport and not soveral places. And that the acts of the servants of the defendant ber the defendant from challenging the entry of the animals as permission had been granted in the place. In offect he was submitting that the Chief Game Warden. and, therefore, the Defondant is estopped from challenging the exportation on the 4 chimpanzoes because of the conduct of the Chief Game Warden met other Government Officials. Mr. Ayigihugu did not cite any authority to me in support of this proposition. I have through my own research found and considered the decision of the Court of A ppeal for East Africa. in the case of Tarmal Industries Itd. Vs. Commissioner of Customs and Execise [1968] RA. 471. I shall revert to this judgment and submission of Mr. Ayigilugu in connection with estoppel later in this judgment and I shall refer to the decision as Tannal's case. I shall also take into consideration the provisions of Section 113 of the Evidence Act on same point.

Back to S. 1. 226-3. Again through my own research I note that the Rules under the said Statutory Instrument 226-3 were amended by Statutory Instrument 1975 No. 97 intituled: The Game (Importation And Exportation For Transit Purposes) (Amendment) Rules, 1975. In fact it was the same $...$ /7 Rule 2 which was substituted as follows:

''Any animal or tropy imported under the provisions of Section 16 of the Act for the purposes of transit shall be imported, only through a customs port specified in the first column of the first schedule to these Rules and. shall not bo., exported'unless, (a) , tho .person importing the animal or< trophy has mbd'o a. declaration in tho 'form contained, in the second schedule ... to those Rules (hereinafter referred'to as ,?the transit declaration") ⁵ and (b) the animal or trohy and documents relating thereto issued by the country of origin have been independently verified by the Chief Game Warden or such person as may be authorised by him in writing". This amendoment was published on ¹4th\* ITovombor, 1975 end 1 take it; that the provisions therein became effective on 15th fevombbr^ ¹⁹⁷⁵ by virtue of Section ²¹ (l) (b) of the Intepriz\* *t*ich Act which ,was operative then\* I have not been able ,to see any. other law showing that Rulo ² has been changed, at any'rate, by cither 23rd December, 1988 when llr\* Okua wrote Exh» P\*7 03? by the time tho chimpanzees wore seized on 6th January, 1989\*

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^I do not accept the contention by Mr\* Ayigihugu that ' either¹ • ²²⁶— ³ itself or S< 1\* 1.9.75 ⁹⁷ amending it was male contrary to Section ¹⁷ of the Game (Preservation and Control) Act\* The Section makes it a^n offence for any body to import for transit a scheduled animal./elsewhere then, at any place prescribed by tho Minister by .a rule\* Rule 2 was in my view enacted within the spirit of Sectioh 17»

Lot mo now' consider Mr\* TuryasihguraTs'submission that no proper formalities wore observed boforb tho plaintiff brought tho animals- into Uganda. I havo already held .and I find as a, fact that ,tho formalities for export of tho .rnimals¹ on the Zaire side of the border wore on available .evidence properly done\* As I.stated, I)W3 •rxd customs officials had in effect condoned any irrogulaties there may liavo boon\*, as a matter of fact tho formalities including those of Uganda wore'held to be "proper up to tho thno tho animals woro remevod from tho aeroplane before the plaintiff

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embarked the plane at Entobbe. According to the plaintiff the impounding of the chimpenzoes was due to intelligence officers (Captain Karyegesa) unofficial motives.

The question to be answered is: did the plaintiff import the 4 chimpanzoes into Uganda through a specified bustons entry point as stipulated by Rule 2. Mr. Turyasingura has submitted that Lia point through which the chimanzoes entered is not an approved entry point ( the purposes of Rulo 2. It should be accepted as pointed out that Lia customs post was not at the time of the importation of the four chimpanzees listed in the first schedule to the original Statutory Instrument No. 226-3 nor indeed did S. 1. 1975 No. 97 add the place to the list of points of entry.

However in this connection the evidence of PW2 who was the Principal. Collector of Customs in Arua under which Lia falls is not without significance. I think the same goes for FN3, also a Principal Collector of Custems & Execise who together with DW3 (the Chief Came Herden) eventually eleared the documents in respect of the export of the chimparzous at Entobbe before they were seized. Besides the plaintiff's ovidence that he wen advised by an official of Games Departmentment to bring anizals into Arua for documents and v rification has not been disproved. There is Exh. P.9 showing that on 20th Nevember, 1988 the Game Department authorised FM4 to bring 2 chimpanzees to Line. That was the modus operandi.

PM2 cleared entry of the animals after being satisfied first that other officials from Games Department had done their job. The animals had entered through Hia Customs Post whose stomps were on relevant documents Exh. P.1 to P.5. PW2 maintains that in 1988 Lia had been approved by the Government as customs port for entry of things like the 4 chiapanzees.

Mr. Turyasingura submitted that Tah. P.4 and P.6 from customs and voterinary department were issued to the plaintiff when the animals were already in Ugarda. Therefore the plaintiff got permission when the chimpa-

$\cdots \cdots \cdots \cdots /9$

nzees had already entered Uganda. Here I should reproduce portions of the evidence of PU2 during ..cross-examination. The evidence explains the . issue succinctlys- He said "All that I was required to do was to demand ¹ ; for- documents which have •'been now- exhinitod in- court • (Exhs.> P.1 .to ?•\$)• ¹/ , . . ' '■ .. There was nothing more I was required to do. normally goods in transit . . should bo deposited at tho point ,of entry until customs requirements are fulfilled first. T2iis is what was done as far as I can remember. It is not necessary to issue a receipt . as the one shown to mo by the State Attorney-(Mr. Turyasingura) at the point, of entry. This receipt (Form 39) shown to mo hy the State Attorney can? bo' issued if tho officer is not satisfied with account given hy the owner.

''State Attorneys "I put to you that the receipt must he used until tho veterinary? ct'-Gbino Department had given authority.

Answers Under -the customs laws I was -empowered under the circumstances of the four chiepansoes not to issue the deposit, receipt and ^c etain the animals because tho owner had to keep the animals as we did not have faci- \ ¹ities *.for* keeping the live-.anima Is So there, was no need to issue deposit receipt.

All estahlishod customs post can allow entry and . exit of all types • ■of goods even animals". ' . ^y

The witness was shown a~ copy of S. ¹ 226-3 and stated "Lia is not listed among the customs' 'posts where trophies should enter Uganda, These can only pass through Vura and Goli in West Hile.,

However Lia was opened ,in 1988. That is-why it is not listed in the Statutory 'Instrument. The post' Lia could not exist and operate unless it was approved hy Government. As far as customs Laws are' concerned, animals can be exported and impo.vted through any established customs post..

As far as customs arc coneomcd, I did not see anything wrong to allow entry of the animals througJi Lia".

This witness who testified that ho had been in Arua from April, ¹⁹⁸⁷ to December, 1988, stated in effect that ho had handled\*10 to 20 eases of chimpanzees in Arua and that the chimpanzees wore destined for Europe or Konya\* ^&gt; . '/-•

Pw'3 appears to support PW2\* It should bo noted that ohJibril\* P\*7 'the Director General of Customs did not i;uestiou legal <oxistar.ee> of' Lia post\*

OT2. purported to explain proper procedures\* DW3 had earlier said ho has never dealt with documents similar or the same as Exhs\* P\*1 to P\*5» Yet in c-zarnination-in—chief he claimed that description of necessary papers for transit goods'should bo CITES papers a,nd others. Those are in ' reality Exh\* P.1 to P\*5» It would seem tliat ho had not been familiar with or not properly handling trophies by which he seems to obviously include the chimpanzees\* ^A^l: opposed'to him, FW2 who was a senior official in charge of customs and execiso asserted that ho had handled over 10 similar cases before\* Ho gave Exh\* P\*5 to the plaintiff and referred the plaintiff to Lia whore the plaintiff completed the form\* PW2 testified ho saw the animals a£ is the practice\* Without eeing thorn S. ¹⁶ (2) (a) would not bo complied, with.

. The evidence of DW3 shows first that he was enforcing the CITES convex' ntion in Uganda before Uganda became party to that convention\* Uganda' apparently accodod to tho convention last year\* Seo Vol ¹⁶ Wo\* 243 of tho ITcw Vision issue dated 12th October, 1991 where tho Chief Game Warden,. (Hoses Okua). was ouoted- as saying ''Uganda's accession to -CITES will cone ./ into force in October, ¹⁹⁹¹ "• The paper is not jbho official source on. law but that information is in lino with the evidence, of DW3 that the' convention was not'law yet' in 1988/89\* • '

As a matter of law, tho provisions of the convention could not be btoding in. Uganda till last year (1991) • Therefore appendox ¹ to the Articles of CITES convention which DVT3 quoted and purported to enforce in

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Ugunda could not in 1988 affect the rights of the plaintiff at the time of the seigure and detention of the chimpanzees. Further more DW3 claims that Uganda had in 1970 stopped transit trade in wild life by a Statutory Instrument. He did not cite the name or title of that Statutory Instrument. The defence and plaintiff's counsel did not produce it either and DW3 did not explain what transit trudo means. Apart from that of 1975 alluded to earlier, I have not been able to trace such Statutory Instrument for 1979 for my perusal. There is paucity of 1979^S.18 but I have made offerts and $S.1S$ located a number/for 1979. DW3 in his evidence-in-chief elaimed that Exh. P.1 to P.6 were not valid. Yet in cross examination he claimed he did not know what Exh. P.1 was all about. At the same time he was able to say what Exhs. P.2 to P.6 were all about. He contended that he considered them invalid because Transit Declaration Form was not completed prior to entry of the chimpanzees into Uganda. Yet at the same time he wrote Exh. P.7 to PM3 asking PM3 to act on that letter (Exh. P.7).

The contents of Exh. P.7 as written by DW3 are short and state in full as follows:-

## "EXTORE OF 4 CHI PANZEES II TRANSIT"

Please handlo the export of the four chimpanzees which are going in transit to Dubai as provided for if all documents are to your satisfaction.

## $J. M.$ Olqua Chief Game Warden" The letter is dated 23/12/1988.

$\cdots \cdots \cdots / 12$

DW3 has attempted to extricate himself from the purpose of that letter. He explained in court that PW3 and other efficiels were supposed to read into the letter the mind of DW3. That he actually wanted to lure the plaintiff into bringing the chimpanzees at Entebbe so that DW3 could impound them. Thy then did he not confine action to PW3 by telephone. Seizure took place 14 days later!! Yet the lotter was acted on by PN?

who minuted it on 20th December, 1988 to the Director-General of Customs and Excise. The latter returned it to PW3 with a minute apparently raising no objection. The Direcor-General mentions Lia in his said minute. Then the letter (Exh. P.7) wed refer to other officials who in minute 4 dated 5th January, 1989 authorised the exportation. In consequence and relying on that letter the plainoaded the chimpanzees on tiff bought air tickets for Dubai and the plane on 6th January, 1989. It was before the plaintiff was about to go to the plane that he was arrested and the chimpanzees were off-loaded and impounded. It is not even clear if any authorised officer for purposes of the Act did the impounding. Surely it hardly requires stretched imagination to understand that the letter meant no less and no more that putting the export process in motion. If he (DW3) wanted to get the chimpanzees he could not allow them to be put on the plane. He could have had them seized by any authority at any stage before.

I find no credible evidence to challenge the plaintiff's claim that the chimpanzees were seized because he failed to pay a bribe to some official.

In my view Mr. Turyasingura's submission that as the Director General has not testified; Exh. P.7 or its contents should not be acted on by this court lacks merit. With due respect to Mr. Turyasingura, he seems to have lost sight of the fact that Exh. P.7 was annexed to the plaint as annexture "B". I have no reason not to accept that that copy along with a copy of the plaint were served upon the defence. In paragraph 3 of the Written Statement of Defence the standard general denial of "No admission is made to paragraphs .... $8 ...$ was pleaded. As I read the contents of Written Statement of Defence I discern nothing therein to say that the portion of Exh. P.7 as purports to have been written by the Director-General are false. Moreover evidence such as of DW3 shows that the Director-General wrote on it. This is defence evidence. In fact there is nothing to show that there is anything perverse in all the contents of Exh. P.7.

In these circumstances I don't accept the enthusiastic belated explanations about Exh. P.7 by DW3. In all probability DW3 did not readly

have the other forms ho rotors to at tho time of soizuro. Hence the use of the totter.

As ho says- it may b.o DW3 had not handled this 'typo of transact!on ■before, ho' possibly did or did'not'know whatto do.- -Bui ho had the. benefitof the; other officials tu rely on,, especially PH3 who maintains up\* io now that the transaction was in order. I prefer, the account given by PIT3 to DV/2 that given by DW1, and DW3\*

How was Rulo ² of S.1. 226-3 as amended complied with?\* Ayigihugu submitted that because of the conduct of the servants or agents of the , defendant, tho defendant is estopped, in- effect from clihllonging the present claim. In normal cases the plea of estoppel should bo pleaded and raised as an issue at the'trial. I -have anXi°us^perused the pleadings. I am satisfied • that estoppel was vaguely raised in tho plaint. Seo paras ⁵ to 8 and ermoxturcs- thereto. Rulo 5 of 0.13 allows court to deal .with tuiy issues that may arise at any stage. There is no projudicc • to tho. 'defence in any case#

^y The effect of the judgment of the court of ^A peal for East Africa in-. Tarraal 's case is. siGPaaarisod' by Duffus. J. A, as ho then was, at page. 439 of C196&3 E'. A» Ho concluded ''The Comiiissloner's oxcerciso .of hispowers- ia final and binding both on the Gcvoznriont and on a private individual except if it can be shenm that he has acted ultra vires'² • Cross cgi Evidohee, 6th Ed. State's that estoppel ' can not bo applied to defeat-,'statutory prervisions. I. think thiii is' the same, why as saying that estoppel cannot apply whore a, party or his agent acted outside his- powers, i.6.\_, illegally\* In my considered view this is not the- case in this suit. ' In my opinion■.estoppel apyJ-ios here. Soo .1-tiyanja liloingi Vs. iTational Housing'Corpora<tioii'[1972J ¹ UIR. ³⁷ at page'49 'wliord-Section ¹¹³ of Our Evidence Act was applied. Soo also Commissioner of Lands Vs. Hussein [1968] E. A. 585 at page 592. Tho principles in tho two cases are. applicable•

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In the present case Exh. P.6 and Exh. P.9 shows that both the Game Department (of which DW3 is the professional head) and voterinary Department on two separate occasions permitted chimpanzees into Ugenda. Exh. P.9 was permission for another person before verification. In their ovidence DN1 and DW3 show that both of them may not have headled this type of transaction before this case. Exh. P.7 and evidence of PW2, DW2 and DNA, show / that this chimpenzoes' transaction was not an isolated case. Se it is not certain that DM1 and DM3 are truthful on this point. Moreover DW3 referred over ything PM3 in Exh. P.7 with a blessing for PW3 to clear the export if FW3 was natisfied with the documents. That those documents aro Exh. P.1 to P.6 is I think clear on the evidence available. As Exh. P.6 was addressed to DW3, the conclusion that DW3 had not prohibited his officials in Arua to act as Exh. P.6 suggests is inescapable. The officials had authority.

DW2 had sighted Exh. P.1 to P.7 during prosecution of the plaintiff. His evidence loads to that conclusion. Although DW2 contended that Exh. P.7 was not a proper document for the chimpanzees transaction, DW3, a best of DW2 and the was presumed to possess official forms wrote Exh. P.7 which was acted on by more other senior officers.

DN4 morely empressed opinions about the work of officials in Arua. Moreover DW4 was drawn into the chimpanzees affair<br>after their seizure and the arrest of the plaintiff. The plaintiff's evidence is that before the scizure the policemen and customs officials wanted the chimanzees to be exported. It is only the intelligence officers (unauthorised officer for purposes of the Act) who opposed the export for already given. This evidence was not really challenged.

Although DM4 claims to be the covert in the chimpensees affair I find it remarkable that DN3 did not consult him until after the arrest of the plaintiff and chimpanzees had already been offleaded. $\cdot / 15$

Characteristically DW4 paid no respect to Exh. P.6 which had been issued on 19th December, 1983 before Exh. P.7.

On the whole there can be no doubt in my mind that the plaintiff was granted permission. I am satisfied that Exh. P.6 was not doemed improper until the intelligence offers' interference occurred. DW3 had then to find an explanation. The plaintiff explained the interference by the intelligence officials. "Kikapu": "Needed. On the evidence available there is no satisfactory or compelling reason for me to assume the centrary; that is that the impounding and the detention was due to illegality in the whole transaction rather than that because the plaintiff failed to appears the intelligence official. Surely if proper forms were available to DW3 he could not fail to use them so as to lure if that was his plan, the plaintiff to bring chimpanzees to Entobhe. That would be the only expert point declared in the form.

Bosides /I found DN4 very evasive most times when he was answering questions all the way. He is an expert and an educated man. He should have been straight forward. I formed the view that his evasiveness was deliberate and was not aimed at assisting the court to arrive at the truth. Under amended R.2, it is the official point of entry which matters at first. Then exportation is possible (a) if the exporter makes declaration and (b) DW3 or his agent verifies Exhs. 1 to 4 and the chirpanzees.

In all those circumstances and on all the ovidence available I don't accept that Exh. P.6 was improperly made. There appears to have been the practice to use such letters. That is why even/Director General accepted it. I don't find it very necessary to the decision in this case but it is not out of place here for me to state the actorious fact that because of problems which this country has gone through, Statutory forms

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have been revely available in some institutions or Government Departments. Officials have had to resort to improvisation. That is by using any paper that can convey the necessary substance of the message. In this case DW3 used a letter head of his Department to show seri usness. Even places like courts have not escaped improvisation. It is the substance and not the form which is material where there is no bad faith. In my considered view, I believe that Exh. P.6 read together with Exh. P.7 satisfy the requirements of the provisions of amended Rule 2. The deference in old rule 2 and the new rule 2 is of interest. Further 5. 43 of the interpretation Decree 1976 would apply here.

The shifting of positions by DM3 when he was testifying is not without significance. First DW3 claimed he did not understand Exh. P.1 to P.5. He deemed those papers (P.1 to P.5) to be defective. Yet in cross-examination he explained their import. He thus demonstrated that he knew what those docuents meant. And Exh. P.7 would, in my opinion confirm that. I therefore hold that he had authoritatively verified the documents and the chimparzees himself . and or through his juniors and I find this as a fact. At any rate by acting on Exh. P.6 he showed he had authorised the officil in Arus to do what he did, i.e., to view and permit the chimpanzoes into Uganda. Let it be noted that in fact he asked the plaintiff to bring the chimpanzees from Arus to Entebbo. If he believed the plaintiff had acted illically, DN3 should have liained with officials in custors and security to soize the animals while in Ame. I don't in the least accept DN3's contention that in esking the plaintiff to transport the chimpanzees from Anua by plane DW3 was monely luring the plaintiff for purposes of impounding these emissions. He deliberately encouraged the plaintiff to process exportation of those chimanzos. I am not convinced by Defence witnesses' Cashion of reasoning. And T reject it.

In all these circumstances and for the reasons I have andoavoured to give my answer to issue Me. 3 is that the chimpanzees were brought to Uganda Lawfully.

$.../17$

On the 2nd issue the learned Senior State Attorney referred to the provisions of Section 88 of the Act and submitted that seizure and detention was justified. I don't think that in the circumstances of this case Section 88 advances the case for the defence.

I was somewhat puzzled by the submissions of the State Attorney. There is evidence that the Attorney General had in 1989 written to DW3 advising release of the chimpanzees. DW3 and DW2 disregarded that advice. This was stated by both witnesses. On the facts I doubt that the Attorney General's solvojure. The State Attorney was from the Attorney General's Chambers from where advice to release chimpanzees was given. So I don't understand what made him (State Attorney) ignore the Attorney General's advice on the matter. He that as it may, my discussion of the 3rd issue has actually dealt with the second issue. The answer to the issue is therefore that the detention of the chimpanzees is unlawful.

I now turn to the fourth issue which is the last issue. In the plaintiff entitled to reliefs prayed? Since I have held that the defendant acted wrongly, plaintiff is entitled to reliefs.

The plaintiff had prayed for return of the chimpanzees or their value on date of judgment. He also prayed for other damages set out under prayers (c) (d) and (e) in the plaint. The defence agreed two of the chimpanzees are dead. The plaintiff and PW4 testified that the chimpanzees would be of value if they were sold when young at the time they were impounded. Now the only alternative is prayer (b) namely to award damages. Plaintiff's counsel asked for US\$ 60,000 for each chimpanzee because that is what plaintiff intended to get as sale price. DW3 in his evidence stated that chimpanzees cost between US\$ 5,000 and US\$ 10,000. Mr. Turyasingura submitted that the plaintiff should be awarded what was declared on the forms. Zaire Forms placed the customs value at 8,000 Zaire money. According to the evidence of DW4 as to the rate of exchange this would amount to \$ 320 or \$ 160. Plaintiff had claimed that he paid 500,000

$\cdots \cdots \cdots \cdots / 18$

Zaire money for each chimpanzeer Again at the exchange rate given by DW4, by simple arithmetic that would be either \$ 20,000 in 1988 or \$ 10,000 by last year because rates were 25 per dollar for 1988 and 50 per dollar for 1991.

Unfortunately the learned Senior State Attorney did not cross-examined the plaintiff on the values given. Again unfortunately the plaintiff did not produce purchase receipt from Zaire nor invoices. from Dubai to back up his figures. May be Zaire transaction was done informally. So it is histword which I am expected to go by. However DW3 volunteered a guide V giving what he estimated to be the cost of chimpenzees on the market.

I den't think the figures appearing on the customs forms offer any reasonablo guide.

I have to take into account impounderables fixing the value. The plaintiff would take some lays before disposing of the chimpanzees while in Duhai. The plaintiff would have to meet the expenses of maintaining himself, PM4 and their cargo of chimpanzees. He would have to feet accommodation expenses. These add to possible list of impenderable. I shall do my best to arrive at an arbitrary though reasonable figure in the circumstances. Bearing in mind the various figures I have set out above and appreciating that the chimpanzees were destined for sale at a profit which was or must have been known by the servants and or agents of the defendant, I shall fix the benefit wheich plaintiff would have probably get from each chimpanzees at US\$ 15,000. The four chimpanzees would therefore fetch US\$ 60,000 (Sixty thousand dollars). I have to convert this amount into Uganda shillings. On 13th February, 1992, Vol. 7 No. 37 issue of the New Vision newspaper at page 13 quoted the value of the dollar in forex bureaus as being roughly above Uganda shillings 1,200/- per dollar. I shall take that round figure (open market) and multiply it by US\$ 60,000. The result is Six. $72,000,000/=(\text{6} \text{eventy two million})$ . I therefore award the plaintiff the cane by way of damages representing the

$...$ $19$

value of his four chimpanzees. . Shs. 139>7OO/= special damages under prayer (c) is undisputed end I award the same.

^~ ¹⁹ -

Under prayer (d) the plaintiff asked forgeneral damages. Docidod cases show that a plaintiff whoso.-goods are detained is entitled to general . damages. Soo Uganda Court of Appeal'Civil Appeal Ho. 6 of 1982. '(Uganda \ Commercial Bank Vs. Mci^iya Wa,sswa) \$ HCCS. No. 499-of 1988 .(Uajyor.ihoro d Sons Vs. Attorney General), HCCS. No.' 480 of 1988 (John Agcrnda Vs. Attorney General) (uni'ep°2?ted.).' Mr. Ayigihugu prayed for an award of between Shs. 500,000/= and Slis. 1,000,000/=. In the circuitstencos of -this case I think that an award ..of Shs. 500,.000/= would bo adequate by way of general damages.

The plaintiff prayed fur exemplary damages in'prayer (e). ' Such damages are awaruablo in cases, whore the defendant? s servants or agents acted oppressivoly arbitrarily or: vneonstituttonally? "Soo the cabas of ' Ro.okqs. Vs. Bernard £l964] AC. 1129/ Kiwahuka- Vs. Attorney• General [19^51 EA.' 296;- Cassella Vs.-Broome d another |J972j ¹ All ER ³⁰¹ and Obongo Vs. •Kisumu Municipal Council ,£1971 ³ -M\*. ,9,1 The evidence of the plaintiff and • of BW3 and BU2 leave no doubt in r.iy mind ''that the-servants of the defendant acted in an oppressive⁷ and-arbitrary manner especially in;refusing to release the' chiirpa^isoes .\_aftor the plaintiff -was'-acquitted5. there was no. appeal tlteroaftor.

In this case 1 think that a sum of. Shs. 1\$000,000/== would be ado— 8 '. quqte and reasonable. I award that cViount to the plaintiff.

.'in the result I enter judgment for the. plaintiff end against the defendant as follaiTs.s -

(i) The value of the. chimpanzees Shs. 72,000,000/= (Shillings Seventy two millions oly) •\_

. (ii) Special.damages Slis. 139>7OO/=

(iii) General, damages-Sh\_s. 5005000/= (Shs. Five hundred, thousand) only.

...<.;.../20

(iv) Exemplary damages Shs. 1,000,000/= (One million shillings)

- (v) Cests of the suit. - at the rate of (vi) Interest on (ii) i.e. in Chs. 139,700/=/20% p.a. from 6th January, 1989 till to day (date of judgment). - (vii) Interest on decretal sum at the rate of 20% p.a. from date of<br>judgment till payment in full. I don't accept the rate of 40% prayed in the plaint.

J. J. N. TSEKOOKO

JUDGE

$13/2/1992.$

I am now proceeding on leave. I was unable to write and deliver judgment because I have been on Griminal Sessions since the hearing was concluded. I don't think it reasonable that this judgment should be delayed because of my lonve. I therefore direct the Registrar of the High Court to deliver this judgment on 20th Febraury, 1992 or on any other date convenient to him and marties.

$J \cdot \overline{J} \cdot \overline{M}$ . TEEKOOKO UDGE $13/2/1992.$

## $20/2/1992.$

Ayigihugu for plaintiff present. Plaintiff present in person. Turyasingura for defendant was here before I get the file but could not wait because he was not feeling well. Judgment read and delivered.

> BYLRUELNGE ILUL R B. G I G T R'A R.

> > $20/2/1992.$