[2010] UGCA 53

#### THE REPUBLIC OF UGANDA

#### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### CIVIL APPEAL NO. 039 OF 2OO5

AKAMBA PUBLIC ROAD SERV]CE LTD ::::::: ::::::: :::: :: : ::::: APPETLANT

#### VERSUS

OLIVER NANTEZA RESPONDENT

CORAM: HON JUSTICE A. E. N MPAGI-BAHIGEINE, JA

HON JUSTICE A. S. NSHIMYE, JA

HON JUSTICE S. ARACH AMOKO, JA

(Appedl lrom the !udgement dnd Orderc o! the High Court Mbdrdra (Mugombo, !) dated 2dh Decembet2007, in High Court Civil Appeol No. 9/2006).

# JUDGEMENT OF A. E. N. MPAGI. BAHIGEINE, JA.

This is a second appeal arising out of the appellate judgement and orders of the High Court dated 15th September 2003. The appellant herein, Akamba Public Road Service Ltd, was decreed to restore the respondent's lost 4tl' parcel or its value of Shs. 2,T73,OOO in lieu thereof. 15

#### Background:

The Respondent, Oliver Nanteza, was a fare paying passenger on the appellarrt's Omni bus plying the Nairobi-Mbale route via Malaba Boarder Post.

J

On l,5th December 1999, the respondent travelled with four (4) parcels containing various goods/merchandise from Nairobi. The bus was cleared at Malaba customs by Uganda Revenue Authority (URA) officials who sealed the cargo boot, signifying all was intact. At Mbale, the final destination, the bus off-loaded the goods at the URA customs warehouse. The respondent identified all her 4 parcels but only received 3 of them. She holds the appellant responsible for the loss of the 4thparcel.

The appellant company denied liability contending that their omnibus safely delivered the respondent's parcels with URA seals intact at the URA customs warehouse. 10

The respondent filed suit before the Chief Magistrate's Court at Mbale, seeking restoration of her lost parcel or its value of Shs. 2,973,000/=, with interest thereon and costs of the suit. This was dismissed by the

Chief Magistrate on the ground that it was tainted with fraud. 15

On appeal to the High Court, via High Court Civil Suit No. t4 of 2003, the learned judge reversed the Chief Magistrate's judgement on 16th September 2003. She granted the redress sought by the respondent of Shs. 2,973,000/= q7;11'l 10% interest thereon from date of judgement till payment in full, with the costs in both Courts.

The memorandum of appeal comprises five grounds, namely that:

- 1. The learned judge erred in law by not striking out the respondent's appealfiled in the lower court on 28-4-2003 which appealed against a decree of the trial court, dated 1-02-2003. - 2. The learned judge erred in law in entering judgement for the respondent after holding that there was failure of justice by the trial court in conducting the case upon the merits. - 3. The learned judge failed to reappraise properly the evidence on record in the trial court, and conducted the appeal in a biased manner against the appellanU the decision is contrary to law or some usage having the force of law. - 4. The learned judge erred in law in entering a decree in the sum of Shs. 2,973,000 for the respondent, the unsuccessful party in the trial court having held there was a miscarriage and/or failure of justice by the learned Acting Magistrate conducting the case. - 5. The learned judge erred in holding that there was a miscarriage of justice when the trial court rejected documentary evidence of the respondent without an opinion from the expert to ascertain its probity; the decision is contrary to law or some usage having the force of law.

Mr. Bernard Mutyaba appeared for the appellant while Mr. Henry Kunya was for the respondent.

Learned counsel argued grounds L and 3 separately while 2, 4 and 5 were treated together.

# Appellant's submissions on Ground 1.

It was argued that the learned judge erred in law by not striking out the appeal filed in the lower court, on 28-04-2003, whose decree is dated 1-02-2003. The trial court delivered a summary judgement in favour of the appellant on 30-1-2002. Reasons for the judgement were given on L-2-2003, approximately a year after summary judgement. The decree extracted in the trial court is dated 1-2-2003. However, the memorandum of appeal filed in the High Court at Mbale was stamped on 28-04-2003. The time span between the signing and sealing of the decree in the trial court and that of filing the memorandum of appeal in the High Court is 3 months, approximately. That being the case the provisions of Section 79 Civil Procedure Act governing filing of appeals were ignored.

The Section stipulates:

1. Except as otherwise specifically provided in any other law every appeal shall be entered:-

a). within 30 days of the date of the decree or order of the couru or

b). within seven days of the date of order of a registrar, as the case may be, appealed against but the appellate court may for good cause admit on appeal though the period of limitation prescribed by this Section has elapsed.

ln computing the period of limitation prescribed by this Section, the time taken by this 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. 2

The respondent did not make any application to have the time extended under Section 79121 CPA (Cap 71), this omission made the appeal incompetent. lt was an error on part of the first appellate court to have entertained the appeal.

### Respondent's re lv on Ground l-.

Ground 1 was geared at the competency of the appeal. At the time the memorandum of appeal was served on the first appellate court, the appellant should have filed a cross appeal. lt would thus be only after the first appellate court had pronounced itself on this ground that it could be raised before this (2nd) appellate court. This is in accordance

with Rule 85(1) of the Rules of this Court, otherwise this issue could not be raised on the second appeal. lt was not framed as a ground. Furthermore, under Rule 91, the respondent was obliged to file a crossappeal in the requisite Court regarding any part of the decision which he was desirous that it should be varied, reversed or otherwise dealt with as the respondent. A cross-appeal should have been filed at Mbale High Court, challenging the competency of the appeal and not simply wait to make a submission thereon. Rules 86(1) and 91 cannot be circumvented.

¹⁰ This ground of appeal lacks merit and ought to be dismissed.

# Court's finding on Ground 1.

It is clear that the provisions of Section 79 (Cap 71) Civil Procedure Act (supra)were flouted. The first appellate court apparently, inadvertently overlooked this anomaly.

15 Needless to state that no objection was ever raised. Both sides were therefore complicit as it were. Nonetheless, considering that this was merely a procedural irregularity not going to the root of the matter and a long time has since passed and the matter has passed through various stages, this Court would therefore invoke its discretion not to let ^a mere irregularity defeat the ends of justice. I would disallow this ground of appeal and proceed to consider the other grounds on merit. 20

# Groun ² 4and5

The essence here is that the first appellate court erred to enter judgement for the respondent after acknowledging that there were ^a number of irregularities committed by the trial court.

#### 5 Submissions for the Appellant

A few minor irregularities of no consequence were pointed out by the learned appellate judge. These included the Chief Magistrate's style of writing which she likened to play-writing and further criticized it for lack of clarity. She also took issue with the Chief Magistrate for rejecting uncertified copies of cargo manifests as proof of special damages. When the appellant failed to bring a witness from URA as she had promised and her counsel on his own volition decided to close the plaintiff's case, the learned judge considered it as unfair treatment of the respondent. The judge thereupon proceeded to reverse the lower court's judgement and awarded the respondent the special damages she had sought, of Shs. 2,973,000/=.

The respondent made different claims in the trial court and in the Criminal Case No. MM.27/2002 which she filed for theft. Furthermore no attempt was made to prove that the thieves prosecuted were actual/real employees of the appellant once this was denied. The

judgement of the 1't appellate court was erroneous and ought to be set aside.

# Submissions for the Respondent

The learned appellate judge properly carried out her duty of evaluating the evidence as a first appellate court. She went at length to point out ^a number of irregularities committed by the trial court.

Even if the servants of the appellant, (the off-loaders) were acting criminally, the appellant was responsible for the theft of the respondent's parcel. The appellant breached his duty of care to keep the respondent's goods secure. The appeal ought to be dismissed.

# Court's opinion of grounds 2,4 and 5.

The gist of these three grounds is whether the learned judge was correct to enter judgement in the sum of Shs. 2,973,000/=. 3, 1'l"r. plaint dated 19th March 2001, the respondent claimed the sum of Shs. 2,973,000, made up as follows:

| 8 rolls of polyester material | 375,0OO/= | |----------------------------------------------|-----------| | 9l suits | 7OO,0O0/= | | 40 skirts | 416,0O01= | | 5 dozens boys suits & 5 dozens girls dresses | 766,000/= | l- dozen girls' dress 716,000/=.

### 2,973,000/=

This was, however, supported by an annexture of a goods transfer form "8" which indicates the contents of all the 4 parcels she had. Their value was not indicated against the various items.

This annexture was most unhelpful as it had no bearing on the value of the goods she was claiming from the appellant. Her evidence was that it had been given to her from the warehouse in Mbale when she was looking for the 4th parcel. She never knew its author. Be that as it may, earlier on when she filed a Criminal Case No. MM.47/2000 at Mbale for theft of the 4th parcel, she put the value of the said goods at Shs. 1.,200,000/=. Her explanation was that at the time of filing the criminal case she had not ascertained her receipts and had not considered the exchange rate since she had bought the goods from Kenya. She had undertaken to produce the receipts but never did. The learned judge was content with this explanation.

ln this regard, the learned judge remarked:

plaintiff/oppellant wos ollowed to tender os exhibits oll the other documents were rejected by Court ofter objections from defence

counsel. lf they were rejected I om of the view thot it would be tontomount to obuse of justice to occept them to be documents for the defence as exhibits ond bose the decision on them to dismiss the plointiff's case....."(sic)

t

5 The documents being referred to EXD2 and D3are version of the same cargo manifest. EXD2 was annexture 'B' to the plaint which was rejected by the court for the obvious reason of being a mere copy which had not been certified. I think I should point out that even if these manifests had been original or authentic, they would not have assisted in establishing the value of the goods costs, the respondent sought to claim. 10

The respondent claimed special damages for the value of her lost parcel. These could not be inferred from the cargo manifests as the learned judge purported to do without proof thereof.

It is trite these special damages must not only be pleaded but must also be specifically proved. Most importantly the value of these goods should have been made known to the appellant at the time of the contract of carriage in order that there may be no surprise in the event of a trial or compensation. Special damages are such as the law will not

infer from the circumstances of the respondent's loss of her parcel, as the respondent wishes the court to do.

5 ln Uganda Telecom Ltd V Tanzanite Corporation (2005) 2 EA 331 (SCU), it was appositely stated by Oder JSC (RlP) that 'Special damages' is that damage in fact caused by wrong. lt is trite law that this form of damages cannot be recovered unless it has been specifically claimed and proved or unless the best available particulars or details have, before trial, been communicated to the party against whom it is claimed. Also see Admiralty Commissioners V Sus-que-Hanna Coroners- The Susquehanna (1926) AtL ER 124 at 127 where Viscount Duneadin stated that 'lf there be any special damage which is attributable to the wrongful act of the defendant that special damage must be averred and proved and if proved will be awarded'. 10

The respondent only exhibited copy manifests for all the three parcels. Their values were not indicated as I have stated above. Under such circumstances, it was a little difficult to.see how the sum sought as special damages was arrived at by the learned appellate judge. I am constrained to disallow it. 15

I turn to the question of where the alleged theft could have taken place. The respondent herself testified. 20

".....,We drove to Mbale customs house. Our bus was the 2nd bus..... My luggage were there. The seal was broken in my presence. The first luggage was removed. I showed them where to put then. I stood there and they brought out 3. I waited for the 4th luggage but it did not s come. The bus left. I got puzzled for I had to clear the 3 luggages. ^I thought I would get my 4th luggage at the office. lt was a usual way of collecting lost/forgotten luggage.

Under cross-examination by Mr. Nagemi;

"Akomba wos supposed to deliver them (reod goods) at the worehouse Mbale. Yes, it did but the 4'h bale wds not delivered to me. We clear the goods once Akambo honds them to us ot the worehouse.

.........it is the Akombo workers who off looded my goods. I would not know who poys; I did not poy them for off looding".

It is clear that the appellant delivered the respondent's 4 parcels at the contractual final destination which was Mbale ware house. She saw all her goods herself and instructed the 'men' to ferry them to the warehouse where she remained waiting for all the parcels to be brought. lt was not the appellant's responsibility to take the goods to the warehouse, She acknowledges this in her evidence. 15 20

The appellant denied any knowledge of the men who off loaded the respondent's goods. But even if they were appellant's servants the appellant cannot be held criminally liable for their thieving habits, this offence required mens rea. lt never authorized them to commit thefts.

- s The sole test here is whether the off-loaders were acting in the course of their employment and were under the appellant's control. First of all it was never conclusively established that these were the appellant's employees, let alone that their duties included off-loading luggage at the URA warehouse which was far from the appellant's office. I discern - 10 and believe that off-loading luggage was their private part-time odd jobs (kyeyo), especially as these were menial workers.

# See United Africa Co. Ltd V Saka Owoads, [1955] AC 130 PC.

Finally respondent's case is full of such gaping lacunae that it is difficult to see how the learned appellate judge could have entered judgement 1s for her.

With much sympathy to the respondent, she only has herself to blame for her lack of diligence.

Since My Lords A. S. Nshimye and S. Amoko, JJA both agree, the appeal succeeds with costs here and below.

a

Dated at Kampala this $22^{2}$ day of $2010$ .

A. E. N MPAGI-BAHIGEINE **JUSTICE OF APPEAL**

### THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA

$\overline{a}$

#### AT KAMPALA

### CIVIL APPEAL NO.03 OF 2005

### Appeal from the Judgment and orders of the High Court of Uganda at Mbarara by Hon. Mugamba, J dated 20^th December 2007 vide High Court Civil Appeal No.9/2006}

# AKAMBA PUBLIC ROAD SERVICE LTD:::::::: APPELLANT **VERSUS**

OLIVER NANTEZA::::::::::::::::::::::::::::::::::::

# CORAM: HON. JUSTICE A. E. N. MPAGI BAHIGEINE, JA HON. A. S. NSHIMYE, JA HON. JUSTICE M. S. ARACH AMOKO, JA

### **JUDGMENT OF M. S. ARACH AMOKO, JA**

I have had the benefit of reading the draft lead judgment of Hon. Justice A. E. N. Mpagi-Bahigeine, JA. I agree with the reasons advanced in the lead judgment and have nothing more useful to add.

I therefore concur with the learned Justice that this appeal succeeds and the respondent pays costs here and in the courts below.

Dated at Kampala this $22 \omega$ day of $22 \omega$ ...................................

**M. S. ARACH AMOKO** JUSTICE OF APPEAL

e ch

# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA

### AT KAMPALA

### CIVIL APPEAL NO. 03 OF 2005

### AKAMBA PUBLIC ROAD SERVICE LTD :::::: APPELLANT

**VS**

OLIVER NANTEZA ::::::::::::::::::::::::::::::::::::

# Coram: Hon Justice A. E. N Mpagi Bahigeine, JA Hon A. S. Nshimye, JA Hon Justice S. Arach Amoko, JA

APPEAL FROM THE JUDGMENT AND ORDERS OF THE HIGH COURT MBARARA (MUGAMBA, J) DATED 20^TH DECEMBER 2007, IN HIGH COURT CIVIL APPEAL NO. 9/2006

$\mathcal{F} = \{ \mathcal{F}, \mathcal{G} \}$

**Familian the Last**

# JUDGMENT OF A. S NSHIMYE, JA

A FUR EUROPE STAMPELING AND

I have had the benefit of reading in draft the lead judgment of Hon Justice A. E. N Mpagi- Bahigeine, JA. Altra da S. Italaska 709 a 1

I agree that the appeal be allowed with costs here and in the Courts below.

the Bh inning Collis

**Dated** at **Kampala** this $\frac{2}{2}$ day of $\frac{2}{2}$ ...................................

were that the appeal ne allowed wit.

A. S INSHIMYE **JUSTICE OF APPEAL**