[2025] UGHCCD 89

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (CIVIL DIVISION) CIVIL SUIT NO. 131 OF 2019 DUAL TRUST (U) LTD ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF VERSUS THE ATTORNEY GENERAL ::::::::::::::::::::::::::::::::::::::::::::::::: DEFENDANT BEFORE: HON. JUSTICE BONIFACE WAMALA**

# **JUDGMENT**

## **Introduction**

[1] The plaintiff brought this suit against the defendant in trespass and/or detinue seeking recovery of maize and/or compensation thereof, special damages, general damages, exemplary damages, interest and costs of the suit arising out of the actions of police officers of wrongfully taking and disposing of maize grains belonging to the plaintiff.

[2] The brief facts according to the plaintiff are that sometime in 2007, a one Emma Kasisi contracted to supply 40 tons of maize to the plaintiff at a cost of UGX 185/= per kilogram. On 11th October 2007, the 40 tons were accordingly delivered to the plaintiff's premises at Nansana by the said Emma Kasisi who received a down payment of UGX 2,500,000/=. On 12th October 2007, the said Emma Kasisi was paid the balance of the sum due for the maize delivered. Shortly thereafter, two persons who earlier on had been with Emma Kasisi approached the Assistant Manager of the plaintiff, Ketrah Mwangangye, demanding for payment for the same maize. The two persons were informed that payment had already been made to Emma Kasisi whereupon they started causing commotion at the plaintiff's premises. The plaintiff's Assistant Manager reported the matter to Nansana Police Station and recorded police statements. The OC CID went to the plaintiff's premises and ordered that the maize in stock should not be touched until the Office of the Director of Public Prosecutions (ODPP) had resolved the matter.

[3] On 25th October 2007, the plaintiff's premises were raided by a group of police officers led by the Deputy Regional CID Kampala Extra, Mr. Macheme, with two big Isuzu lorries No. 588 UCS and UAB 983C. The police officers forced the staff of the plaintiff out of the premises and loaded the maize onto the trucks based on a letter to the Regional CID Officer Kampala Extra written by a Senior State Attorney purporting that a one Oree Tom was the owner of the maize. The letter directed that Oree Tom should either be paid fully for the maize or his maize should be returned to him. The plaintiff lodged a complaint with the DPP's office requesting to be compensated for the illegally confiscated maize but to no avail. The plaintiff averred that the officials of Uganda Police and the Director of Public Prosecutions wrongfully and unlawfully detained, took and disposed of the plaintiff's maize causing gross financial loss to the plaintiff's business; thus this suit.

[4] The defendant filed a Written Statement of Defense (WSD) in which they denied the plaintiff's claims and stated that the controversy surrounding the ownership and matters related to the said maize was dealt with and finally disposed of by the office of the DPP in 2007 and could not be a basis for a cause of action. It was stated that the officers of Uganda Police are empowered to impound and seize any object that is subject of investigations. It was further stated that there was no ill will or ill-motive by the agents of the defendant towards the plaintiff and the defendant had no control over the verdict of the ODPP and neither could the plaintiff dictate the way the office handled the matter. The defendant concluded that they are not in any way vicariously liable for alleged claims and prayed for dismissal of the suit with costs.

#### **Representation and Hearing**

[5] At the hearing, the plaintiff was represented by **Ms. Namanya Joan** from M/s Bashasha & Co. Advocates while the defendant was represented by **Mr. Ojiambo Bichachi**, a State Attorney from the Chambers of the Attorney

General. Evidence was adduced by way of witness statements and the plaintiff led evidence of two witnesses while the defendant led evidence of one witness. Both counsel made and filed written submissions which I have taken into consideration during the determination of the matter before Court.

[6] In their written submissions, Counsel for the defendant raised a preliminary point of law to the effect that the plaintiff's suit was barred by the statute of limitation, which I will consider first.

#### **Submissions by Counsel for the Defendant on the preliminary objection**

[7] Counsel submitted that the plaintiff filed this suit basing on the tort of conversion against government outside the statutory period of two years under section 3(1) of the Civil Procedure and Limitation (Miscellaneous Provisions) Act which provides that suits for torts against government have to be filed within two years from the date the cause of action arose. Counsel submitted that the plaintiff brought this suit after 12 years from the time the cause of action arose, without seeking extension of time. Counsel submitted that the position of the law is that a limitation statute is strict in nature, inflexible and not concerned with the merits of the case. Non-compliance with the limitation period renders the suit a nullity. Counsel relied on *Hilton v Sutton Steam Laundry [1956] 1 KB 73* and *Madhvani International SA v Attorney General, SCCA No. 23 of 2010*. Counsel prayed that the suit be dismissed for being barred on account of time limitation.

#### **Submissions by Counsel for the Plaintiff**

[8] In response, Counsel for the plaintiff submitted that defence counsel had belatedly raised the preliminary objection with the objective of conducting a trial by ambush. Counsel prayed to the Court to disregard the preliminary objection on that account. Secondly, Counsel for the plaintiff submitted that contrary to the submission by defence counsel, the plaintiff's cause of action is not based on conversion; rather it is based on the tort of detinue. Counsel submitted that detinue is a continuing tort and, although the date of accrual of the cause of action is the date of first commission of the tort, so long as the wrongful detention of the chattel continues, the cause of action arises from day to day and the period of limitation does not run from the first day the unlawful detention of the chattel was committed. Counsel relied on the case of J. A *Osma v Transocean (U) Ltd, Civil Suit No. 1385 of 1886.* Counsel submitted that the facts by the plaintiff show that the defendant confiscated the plaintiff's maize which had not been returned by the date of filing the suit despite several demands leading to a conclusion that the plaintiff's maize was still in the defendant's possession. Counsel submitted that the present suit was within the ambit of the tort of detinue which is a continuing tort. Counsel prayed to the Court to overrule the defendant's preliminary objection on limitation on basis of the above pointed out legal position.

# **Determination by the Court**

[9] Although it is a correct position of the law as argued by Counsel for the plaintiff that a preliminary objection ought to be raised at the earliest opportunity in the proceedings, it is also the law that a point of law may be raised at any point in the proceedings. Once the court is possessed with sufficient materials to be able to deal with a particular point of law, it is imperative that the court deals with such a point and any inconvenience or prejudice suffered by the opposite party may be catered for in terms of costs. That is, provided the point raised is a pure point of law and the same does not amount to departure from the parties' pleadings. In this case, the point raised is that of time bar on account of the limitation statute.

[10] It ought to be noted that in paragraph 4(e) of the WSD, it was indicated that the defendant would raise the objection at the trial. However, the same was not raised during the trial and was first raised during final submissions in reply by defence counsel. It is to be assumed that the plaintiff's counsel had notice that such objection could be raised. There is no express indication anywhere on record that the intention to raise the said objection was dropped. It is, therefore, not true that the defence intentionally opted to conduct a trial by ambush. It appears to me that the parties just omitted to either deal with the matter at a preliminary level or to raise it as an issue. Be that as it may, a point of law concerning a provision of a limitation statute would be entertained by the court even where it was raised in the final submissions by the parties. All it would require is whether the opposite party has been able to make a reply to the matter and whether the court has sufficient material before it so as to make a finding on the matter. Those conditions exist in the case before me and I will proceed to consider and determine the point of law raised on its merits.

[11] It is true that under section 3(1)(a) of the Civil Procedure and Limitation (Miscellaneous Provisions) Act Cap 283, no action founded on tort shall be brought against the Government after the expiration of two years from the date on which the cause of action arose. It is not in dispute that the cause of action herein first arose in October 2007. It is also not in dispute that the present suit was filed in court on 27th March 2019; a period of over eleven years from the time the cause of action first arose. It is further true that in the plaint, the plaintiff did not invoke any of the exceptions to the limitation provision as set out under sections 5 and 6 of the Act. The argument, however, by the plaintiff is that their cause of action is based on the tort of detinue, which is a continuing tort. Counsel argued that, although the date of accrual of the cause of action is the date of first commission of the tort, so long as the wrongful detention of the chattel continues, the cause of action arises from day to day and the period of limitation does not run from the first day the unlawful detention of the chattel was committed. Counsel relied on the case of *J. A Osma v Transocean (U) Ltd (Civil Suit No. 1385/86) [1990] UGHC 3 (30 October 1990)* for that submission.

[12] The subject as to whether detinue is a continuing tort was aptly dealt with by G. M Okello J (as he then was) in *J. A Osma v Transocean (U) Ltd (Civil Suit* *No. 1385/86) [1990] UGHC 3 (30 October 1990)*. In the case, the Learned Judge stated thus: -

*"As to whether [detinue] is a continuing [tort] for the purpose of Limitation Act, it is important to consider the nature of the tort because those torts like nuisance, false imprisonment and occasionally trespass to land which though may be done once but of which consequences and damages arising from them are continuous, are regarded as continuing torts. (Winfield and Jolowicz on Tort 12th Ed.\_Page 648—9). In those types of torts, a fresh cause of action arises de die dem (from day to day) so long as the wrongful state of affairs continues. In such event the plaintiff can recover for such portion of the tort as lie within the time allotted by the statute of limitation although the first commission of the tort occurred outside the period prescribed by the statute of limitation (See: Winfield and Jolowicz on Tort 12th Ed. Page 649).*

[13] I am fully in agreement with the above position of the law espoused by the learned Judge. It is true that the gist of the wrong in the tort of detinue lies in the wrongful detention of a chattel by the defendant after demand by the plaintiff for its release. So long as the wrongful detention of the chattel continues, the cause of action arises de die dem (from day to day). In this case, at the time of instituting this suit in 2019, the maize allegedly confiscated by the defendant's agents from the plaintiff had not been returned despite the demand by the plaintiff. The cause of action therefore continued to accrue up to the time of filing the suit. The suit by the plaintiff was, therefore, not barred by law on account of time limitation. The preliminary objection raised by the defence counsel is therefore overruled.

# **Issues for Determination by the Court**

[14] Three issues were agreed upon for determination by the Court, namely;

- *a) Whether the plaintiff's maize was unlawfully confiscated and detained by the police?* - *b) Whether the defendant is liable for the acts of the police?*

*c) What remedies are available to the parties?*

# **Burden and Standard of Proof**

[15] In civil proceedings, the burden of proof lies upon he who alleges. *Section 101 of the Evidence Act, Cap 8* provides that;

*"(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts must prove that those facts exist.*

*(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."*

[16] *Section 103 of the Evidence Act* provides that;

*"The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person*.*"*

[17] Accordingly, the burden of proof in civil proceedings normally lies upon the plaintiff or claimant. The standard of proof is on a balance of probabilities. The law, however, goes further to classify between a legal burden and an evidential burden. When a plaintiff has led evidence establishing his/her claim, he/she is said to have executed the legal burden. The evidential burden thus shifts to the defendant to rebut the plaintiff's claims.

#### **The Evidence**

[18] The plaintiff led evidence of two witnesses, namely; **Ketrah Mwangagye (PW1)**, the Assistant Manager of the plaintiff and **Bafaki Ernest (PW2)**, a Director in the plaintiff company. The defence led evidence of one witness, **Muwaganya Jonathan (DW1)**, a Chief State Attorney in the Office of the Director of Public Prosecutions. ## **Resolution of the Issues by the Court**

*Issue 1: Whether the plaintiff's maize was unlawfully confiscated and detained by police?*

## **Submissions by Counsel for the Plaintiff**

[19] It was submitted by counsel for the plaintiff that the police unlawfully confiscated and detained the plaintiff's maize while acting on directives of the DPP and thus are liable in detinue. Counsel relied on the case of *J. A Osma v Transocean (U) Ltd HCCS No. 1385/86* where the tort of detinue was defined as the wrongful detention by the defendant after demand of possession of a chattel to which the plaintiff is entitled to immediate possession. Counsel submitted that for one to establish a cause of action in detinue, three elements must be satisfied, namely that; there must be wrongful detention of a chattel by the defendant, a demand of possession by the plaintiff and refusal by the defendant to release the chattel.

[20] Regarding the element of wrongful detention of the plaintiff's chattel by the defendant, counsel submitted that the confiscation of the maize was based on a letter from the DPP which was citing an entirely different police case No. HQRS-CO-0278-07/Kawempe CRB 3326-2007, which the plaintiff was not involved in. Counsel stated that there was a contract between Emma Kasisi and the plaintiff where by Emma Kasisi delivered maize and the plaintiff made payment for the same to the person he had contracted with. Counsel argued that the DPP on its own volition alleged that there was a contract between Oree Tom and the plaintiff well aware of the facts at hand. Counsel further submitted that it was not the duty of the DPP and Police to recover money under a contract and the dispute should have been referred to a civil court. However, the DPP and Police decided to act as the court and the prosecution and confiscated the plaintiff's goods without a valid court order or any authority. Counsel invited the Court to find that the confiscation of the maize by the police was done unlawfully.

[21] On the element that there must be demand of possession of a chattel of which the plaintiff is entitled to immediate possession, counsel submitted that the evidence on record shows that the plaintiff was in possession of the maize at the time the police took it and made demands by way of a statutory demand (PE6 on record) and a letter/ complaint to the DPP demanding the release of the confiscated maize dated 26th October 2007.

[22] On the element of refusal by the defendant to release the chattel, counsel submitted that the plaintiff made several demands for the release of the detained maize through a letter dated 26th October 2007 and a statutory demand served onto the defendant on 7th January 2008. Counsel stated that the defendant has never returned the confiscated maize to the plaintiff. Counsel prayed that the Court finds that the plaintiff's maize was unlawfully confiscated and detained and, as such, that the tort of detinue has been proved by the plaintiff.

## **Submissions by Counsel for the Defendant**

[23] Counsel for the defendant submitted that the evidence shows that the complainant, Oree Tom, delivered 41 tones and 493 kgs of maize to the plaintiff's mill but the plaintiff's agents negligently paid money to someone other than the actual person that delivered the maize. According to the DPP's findings during the investigations, the complainant had the right to take back his unpaid goods or full payment of his money, the value of the goods. Counsel stated that when the office of the DPP perused criminal file Kawempe CRB 332/2007: Uganda vs Emma Kasisi, in which the suspect was accused of obtaining goods by false pretenses, the ODPP advised the plaintiff to open up a complaint against Emma Kasisi for obtaining money by false pretenses but the plaintiff did not do so. Counsel submitted that the decision of the ODPP was based on the *nemo dat rule* to the effect that nobody can pass a better title to the goods than he or she has. Counsel also submitted that the officers of the Uganda Police are empowered under the Police Act and the Criminal Procedure Code Act to impound and seize any object which is subject of investigations.

## **Determination by the Court**

[24] The present action was brought by the plaintiff in detinue. Detinue is the wrongful retention of the possession of a chattel. It does not matter how possession of the chattel was acquired; it may have been lawfully but the permission of the owner gets withdrawn or terminated and a demand is made for the return. To sustain an action in detinue, the plaintiff must prove, first, that he is entitled to immediate possession of the chattel, and if there is any defect in his right to immediate possession, he must fail. Usually the defect arises from a right of adverse possession in a third party, among others. Secondly, the plaintiff must prove that the defendant detained the chattel after a proper demand had been made for its restoration. See: Winfield & Jolowicz on Tort, 10th Edition, pages 408 – 09. For the tort to be established, it is incumbent upon the plaintiff to prove property in himself, and possession in the defendant. See: Black's Law Dictionary, 5th Edition, page 405.

[25] It is thus imperative on the case before me to establish whether the plaintiff was entitled to immediate possession of the maize in issue. Since it is shown in evidence that the plaintiff had obtained possession of the said maize through a sales transaction, the real question is whether the plaintiff had received property and/or title in the maize and the defendant had unlawfully taken possession and retention of the same. In a sale of goods transaction, the rules for passage of property in goods are provided for under the *Sale of Goods and Supply of Services Act Cap 292*. Under section 22 of the Act, where the contract is for sale of unascertained goods, property in the goods shall not pass to the buyer until the goods are ascertained. Under section 25 of the Act, where the contract is for sale of specific or ascertained goods, the property in the goods passes to the buyer at such time as the parties to the contract intend it to pass. For the purpose of ascertaining the intention of the parties, regard shall be had to the terms of the contract, the conduct of the parties and the circumstances of the case.

[26] In the present case, the evidence by the plaintiff is that the agreement between the parties was that Emma Kasisi was to deliver approximately 40 tons of maize at a cost price of UGX 185/= per kilogram. The understanding was that when delivered, the maize would be measured bag by bag upon being offloaded. The first 30 bags were handled as such and the persons around observed that each bag had its weight written on it which corresponded with the measurement taken. They therefore agreed that they go with the measurement written on each bag as the correct one. The maize was fully offloaded and ascertained as being 41 tons and 493 kilograms. It was placed in the store of the plaintiff. From this evidence, it is safe to conclude that this was a sale for unascertained goods and the property in the goods would only pass upon the goods being ascertained through establishing the actual measurement of the maize delivered. But this was also dependent on whether the person who sold the maize had the right to pass title in the said goods; that is, whether the seller had no defect in his title to the goods.

[27] According to the plaintiff, the seller of the maize was Emma Kasisi. According to the defendant, it was established through police investigations that the actual owner of the said maize was one Oree Tom. It is shown in evidence that Oree Tom is one of the persons who arrived with the truck at the plaintiff's premises and remained around throughout the process of offloading and ascertainment of the goods. Emma Kasisi, the alleged seller according to the plaintiff, arrived during the process of offloading. According to the plaintiff's evidence, the part payment of UGX 2,500,000/= was paid to Emma Kasisi. It was agreed that the balance would be collected the following morning since it was late to move with a big sum of money. Evidence further indicates that the following morning, Emma Kasisi returned to the plaintiff's premises with the two other persons. It was later established that one of the persons was Oree Tom. As Emma Kasisi entered the office to receive payment of the balance, the two said persons remained outside waiting. They however did not see Emma leaving. After waiting for some time, one of them, Oree Tom entered and demanded to be paid; only to be informed by the plaintiff's Assistant Manager (PW1) that the money had already been paid to Emma Kasisi. Oree Tom then caused commotion which led to the matter being reported at Nansana Police Station.

[28] When the matter was investigated, it was established that Emma Kasisi had acted deceptively and had obtained payment for the goods by false pretenses. Police ordered for the maize to be left intact as they conducted investigations. When the case file was forwarded by the police to the ODPP for advice, it was returned with a minute directing the police to return the maize to the owner, who had, through investigations, been established to be Oree Tom unless the plaintiff company paid for the full purchase price. The plaintiff company was advised to follow up the criminal charge of obtaining money by false pretenses against Emma Kasisi. The plaintiff was however aggrieved with the decision of the ODPP and opted to sue for recovery of the maize and other reliefs contained in the plaint.

[29] Under *section 29(1) of the Sale of Goods and Supply of Services Act Cap 292*, where goods are sold by a person who is not the owner of the goods, and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by his or her conduct precluded from denying the seller's authority to sell. This is an expression of the well-known principle of *nemo dat quod non habet* (no one can pass a better title than he/she has). In this case, Emma Kasisi knew that the goods belonged to Oree Tom but represented himself to the plaintiff as the owner. Such was a fraudulent act on the part of the said Emma Kasisi. Beyond remaining silent, the evidence does not disclose anything done by Oree Tom that could be interpreted as having represented Emma Kasisi as the owner of the maize. None of the plaintiff's agents asked who the actual owner of the maize was. Neither did they ask for the source of the maize. The fact that they had been approached by Emma Kasisi about the supply of the maize was not sufficient proof by itself of ownership thereof. It was incumbent upon the plaintiff through its agents to inquire into the source and ownership of the goods.

[30] By omitting to make relevant inquiries regarding the ownership of the goods, the plaintiff undertook the risk of purchasing goods whose title was defective. Where, upon a dispute as to ownership arose, the matter is reported to police and, upon investigation, it is established that the transaction involved fraudulent conduct amounting to an offence, such a finding is very material to the dispute. Evidence indicates that through such criminal investigation, the police were able to establish the source of the maize and the actual owner thereof. In law, a seller of such goods by any person other than the owner passes no property and/or title in such goods. In this case, it has been established that Emma Kasisi, the purported seller, had no title in the goods and could not pass any to the plaintiff. It follows, therefore, that the plaintiff was not entitled to immediate possession of the maize in issue. Upon the directive of the ODPP, the maize was lawfully seized by the police and handed over to the rightful owner. The remedy of the plaintiff was to pursue Emma Kasisi, the fraudster, on criminal charges of obtaining money by false pretenses. The plaintiff should, therefore, have abided by the advice of the ODPP.

[31] That being the case, the plaintiff has not proved on a balance of probabilities that they were entitled to the immediate possession of the goods that were taken by the police. As such, they had no right to demand for their restoration. The tort of detinue has not been proved by the plaintiff on the evidence before the Court. In light of this finding, the remaining two issues only remain academic. No liability can be found against the defendant and the plaintiff is not entitled to any remedies.

[32] In all, therefore, the suit by the plaintiff fails. Since costs follow the event, the defendant is entitled to the costs of the suit. The suit is accordingly dismissed with costs to the defendant.

It is so ordered.

*Dated, signed and delivered by email this 10th day of June, 2025.*

**Boniface Wamala JUDGE**