[2003] UGCA 27

## THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

## CORAM: HON. JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ. HON. JUSTICE C. N. B. KITUMBA, JA. HON. JUSTICE C. K. BYAMUGISHA, JA.

## CIVIL APPEAL NO. 36 OF 2003

### EPHRAIM KIZITO :::::::::::::::::::::::::::::::::::: $10$ **VERSUS**

#### **UGANDA DAIRY CORPORATION** $1.$

#### $2.$ ATTORNEY GENERAL ::::::::::::::::::::::::::::::::::::

[Appeal from the judgement and decree of the High] Court of Uganda at Kampala (Katutsi, J.) dated 25/2/2002 In HCCS No. 71 of 19971

## JUDGEMENT OF KITUMBA, JA.

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This is an appeal against the judgement and decree of the High Court. The appellant sued the Uganda Diary Corporation, hereinafter to be referred to as the first respondent and the Attorney General, jointly and severally for conversion/definite. He sought from court a grant of the following orders. The return of the cooling plant or its equivalent in monetary terms, pecial damages for loss of income, general damages for conversion/definite and costs of the suit.

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The appellant's case was that on 24^th July 1995 policemen and an officer of the first respondent in the course of their employment went to the appellant's shop at Natete Trading Centre. They removed his milk cooler on allegations that it was suspected to have been stolen from the first respondent. When the appellant was asked to explain how he had come

to possess the cooler, he said that he had bought the same from one Kiwuwa. The said Kiwuuwa who had passed away was a former employee of the first respondent. The appellant gave them the sale agreement, which was produced at the trial as exhibits P1 and PII. The agreement was made in the presence of and witnessed by Kiwuwa's sister, Frances Kaboggoza, PW2. The agents of the respondents wrote a seizure note (Exhibit P2) before taking the cooler to Central Police Station Kampala.

The appellant was told to keep on checking with the police while they $10$ were continuing with investigations. After about one year the appellant was informed that the milk cooler had been handed over to the 1^st respondent. The appellant filed a suit in High Court against the first respondent and the Attorney General for conversion/detinue.

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生命を生物する。<br> 中国の中国の中国の中国の中国の<br> 中国の中国の中国の<br> 中国の<br> 中国の<br>

The Attorney General who was the second defendant filed a written statement of defence. It was a total denial of all the averments in the plaint. He, however, did not defend the case at the trial in the High court. The suit was defended only by the first respondent who was also the $1^{st}$ defendant.

The first respondent's case was that the cooler was its property and that it had a right to its possession. It also averred in its written statement of defence that the cooling plant - Mueller Cooler serial No. 32666 which belonged to it had been stolen from its Cooling Plant at Kyere Soroti District. It was later traced at the appellant's premises. The people who had stolen the cooler were later prosecuted in Soroti Chief Magistrate's Court in Criminal Case No. MS 403/84. They were convicted and

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sentenced. The appellant could not, therefore, acquire a good title to the cooler, which had been stolen.

The following issues were framed at the trial

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- 1. Whether the milk cooler was the property of the plaintiff. - $2.$ Whether the plaintiff suffered damages by the seizure and retention of the milk cooler by the defendants, and - $3.$ What remedies are available to the plaintiff.

The learned trial judge found that the cooler in issue belonged to the first $10$ respondent. The people who had stolen the cooler had been prosecuted, convicted and sentenced. Relying on section 25(1) of The Sale of Goods Act he held that once a thief of goods has been prosecuted and convicted the property in the stolen good reverts to the owner. He answered the first issue in the negative. He did not consider the second and third issues. $15$ He dismissed the appellant's suit with costs to the respondents.

The appellant being dissatisfied with the court's finding has filed an appeal to this court. The memorandum of appeal is in the following terms.

$\cdot$ 1. THAT the learned judge erred in law and fact when he held that the machine in question was the one exhibited in the Criminal Court as the one stolen from the first defendant without evidence to support such finding.

THAT the learned judge erred in law and fact when he $2.$ held that the suit cooler (sic) was stolen from the first defendant and that as such the plaintiff had acquired no title thereto from whoever sold it to him.

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3, THAT the learned judge failed and or ignored to evaluate the evirlcnce on recortl thercby arrivirtg at rvt'ottg co n cl usio n.

IT IS proposed to ask this honourable court lbr orders that (sic)

- (a) That this appeal be allowed. - (b) The judgenrent and Dccree of the learncd judge be set aside. - (c) The appellant be granted the remedies prayed for in the lower court. - (d) The appellant bc arv:rrded the costs of this appeal and those of thc lorvcr co rr rt. "

Mr.. Tohn Mike Musisi. learned counsel fbr the appellant, argued all the three grounds together, because, as he said, they all deal with evaluation of evidence. I shall deal rvith the grounds in a like rnanner.

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h I rl 20 Counsel contended that the judge's finding tl.rat tl.re appellant's cooling plant s,as r sub.jcct ol' criminrtl pxrcc't'dirtgs in llre ('lrit'l'I\4ugistrirt,.''s Cor-rrl at Soroti s,as rvlong. Thc conclrrsior-r tlrat as the suspected thieves were convicted, tl.re cooler belonged to the respondent, was also wrong. He submitted that the appellant cxplained how ltc purchascd thc coolcr' and his evidence rvas corroborated by the tcstinrony ol'l'W2. Ilrc slrle agreemerlts (exhibits P1 and PII) show the date of purchase-asNovember 1993. The agreernents were produced by the appellant immediately when he was asked to explain how he had come to possess the cooler.

According to the evidence of Obeti Bob, DWl, he received the report of theft of the respondent's coolel in July 1994. This was long after the appellant l.rad already bought his cooler.

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Learned counsel criticised the judge tbr holding that the cooling plant serial No. 32666 which was seized from tl.re appellant's sltop at Natctc belonged to thc first rcspondcrrt. I-lc suhnritted that that serial number is not sliown on the seizure notc, cxhibit P.lll. He reasoned that the respondents' agents noted the serial number afier the seizure ol the cooler and clairned that the cooler which was stolelt rvas of that number. He argr.red further that the firsl respondent did not produce any documentary evidence to prove that the cooler belonged to ir. On the co1tr1?, rhe appellant produced evidence proving that he rvas thc lawltrl ou,ner of the cooler, u,hich rvas seized, li'onr his sltop, Itavirrg purchased the sarne from Kirvurva. Counsel subrnitted further, that there were otller people possessing coolers of a similar type as the appellant's cooler. Mr. Musisi vehernerrtly attacked the lealned tlial judge fol basing his decision on the decision in the crirninal trial without looking at the court record ol the said trial. He prayed coult to re-evaluate the evidence and to find that the cooler in issue belongs to the appellant. Counsel prayed Court to award the appellant special and generhl darnages and costs ofthe sr"rit. IO r5 5

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ln rc'pl1', lvls Janc Olitro lcalncd counsel lbr the respondcnL, supportcd thc learned trial judge's iinding. Shc contcndcd tltat thcrc r.vas overwhcltning eviderrce to prove that the cooler in issue belonged to the first respondent. The learned trial. j udge rvas right not to considel the date when the appellant bought the cooler and when the report of the theli ol the respondent's cooler was lltade to Obeti, DW2. Counsel submitted that the sale agreelnents (exhibits Pl and PII).do not speciry the serial number of the cooler, rvhich the appellant bought from one Kiwuwa' According to colrnsel the agreenrent could be in connection with another transaction. She reasoned that this could be so because the appellant testified that he had another small cooler in Entebbe. She submitted that it is the l0 l5

appellant who lequcstcd thc rcspontlcnt's lrlcrrls lo isstre llr,.'sciz,rur rrolc. He should have insisted to have the serial nurnber included as he was to follorv up his cooler. She contended that the respondent's ownership of tire cooler was llot a'contenl.ioLrs issue at tlie trial. In her opinion, it is not proper for counsel for the appellant to raise it on appeal. Sbe\_argued that thc' lc'rrnr-'d trirl .judgc lrclicvctl Ohcti's tcstirrrorrl, ol'Irorv tlrc lcport ol' theft of the respondent's coolel was made to hirn and how he traced the cooler. Obeti testified in the crirninal case. According to her, counsel tbr the respondent, if he had so rvished, slrould havc consultcd tllc court record in the criminal case because it is a public document. Submitting in the alternative she relied on Hollineton vs Herv thorn & Co. Ltd Il943l 2 .\l-L [It 35 t,cr the Icgal plinciplc that as a gencral rule a verdict or judgement in a crirninal case is not cvidence of the fact upon which tliat judgement u,as founded in a civil proceeding. Ilorvcver, shc argued that the judge was right to apply the provisions of the Sale of Goods Act and to declare that the respondent was the owner of the cooler. Shc argtrcd that the appellant \\,As not cuti(lctl to clarrugcs [rcc;rtrsc ltc tlitl rtol provc ^aIry. 5 10 li

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Exercising his light o1' reply, Ivlr. Musisi contended that there 'was no clear evidence to prove that the cooler in the instant appeal was the same one s,l'rich rvas stolen ll'onr thc respondent. IJorvcvet', I'rc agreed with the statelnent of the Iaw in Hollington vs Herv thorn &Co. Ltd (sunra). He submitted that the judge's finding was in contravention of that principle. Counsel submitted that ownership of the cooler was the issue in the court belou' and the whole case revolved on tl-rat. He subrnitted that the appellant had proved loss of irrcornc. I-lorvcvcr. rs a ht-ro,s-t.. -twclYe years had passed since the apl)ellarlt's cooler had been taken by the respondent it rvas dift-rcult to detennine the actual loss of incoure. Counsel prayed to 0 l-(

court that general damages should be awarded instead of special damages. In support of this submission counsel relied on **Robert Cuossens vs Attorney General S. C. Civil Appeal No. 8 of 1999 (unreported)**

It is the duty of the court to re-appraise the evidence the pleadings and $5$ submissions of counsel and come to its own conclusion whether the decision of the trial court can be supported or not. See: Pandya vs R. [1953] EA 336, Peter vs Sunday Post [1955] EA 424, Bank Arabe Espanol vs Bank of Uganda Supreme Court Civil Appeal No. 8 of 1998 (unreported) and Rule 29(1) of The Court of Appeal Rules. $10$

In his pleadings the appellant averred that the agents of the respondents took his milk cooling plant from his shop at Natete for investigation. The respondents' agents alleged that the cooler was suspected to have been stolen. He averred that at all material times he was the lawful owner $15$ of the milk cooling plant. He had bought the same from Kiwuwa. The respondent pleaded that the cooler belonged to it. In paragraph 8 of the amended written statement of defence it is averred.

> **"8. IN FURTHER ALTERNATIVE and without prejudice to** the above the First Defendant shall contend as follows:

- That the cooling Plant MUELLER SERIAL NO. 32666 $(a)$ together with a COMPRESSOR UNIT belonging to the First Defendant were stolen from the First Defendant's Milk Cooling Plant at Kyere, Soroti District and later, through the police traced and found in the premises of the plaintiff at Natete. - That the theft was reported to Soroti Police Station vide $(b)$ CRB 455/94.

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$\mathcal{L}$ - (c) Th:rt Policc invcstigations rcvc.rlcd that thc cooler had bccrr slolcn b5 \\'.\S I K l,i ll()li lll{'l', l,lNl ()l{t I lD,\'l'lt I('l( and KIGOZI AltDAl,LA. - (d) That the threc persons lvere prosecuted and convicted by the Soroti Chief i\{agistr:rte's Court vidc Crirninal Casc No. MS 403194 and sentenced to l2 months inrprisonnrent or payment of a fine. of Ug. shs. 250,00011=(Uganda Shillings Trvo hundred Fifty Thousand orrly).

9, Tltc first clcf'cndant should avcr that thc suit propcrty having bcen stolen thc plaintiff could not acquire good title to it."

From the pleadings ol'both partics it is clcar tllat thc rlain issuc in thc suit was the ownership of the mill< cooling planr.

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According to the evidence of PWI he bought the coolcr fl'onr Kiwuwa in Novenrber' 1993 and paid in two irlstalrrents. The first sale agreement (exhibit Pl) rvas executed on 5llll93. 1'he appellant ntadc parl payment of shs.370,000/= of the purchase price ol shs.2,000,000/-. 'l'he agreement provided that the appellant would take possession of the coolirrg plant rvhen he pel s the lralanc.' ol'thc purchnsc pricc- arrounting to shs.l6-5.000/:. The firral sale agreement (Exhibit PII is dated 9/ll/1993. This agreement stated that the appellant had paid the full purchase price. PW2 con'obol'ated I:is evidence ol'thc purchasc.

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According to the evidence of Bob Obeti, DWl, he received a report of the theft of milk coclers from Soroti in July 1994. He began trpcing the suspects. In November 1994 he arrested one Patrick Emorut who directed hirn to another suspect Wasike Robert and both were charged in

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the Chief Magistrates'Court at Soroti. ln juty I995 ltc br:giut lor)l\rnB l()r the stolen coolers in Kampala. flc lbund a coolcl lr4trcllcr l\'ltttlt'l "l\'1" serial No. 3?666 in the appellant's shop prenrises. Thc cooler was taken to Kampala Central Police Station and later to Soroti police station. fhe said cooler was produced in evidence at the Crirninal trial during whiclr the suspr:cls \vL'rc collv ictc(i.

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The testinrony ot'Richard Aycra, DW2, is that lrc lccourl.xrnicrl l)W I to Natete. They seized a coolc'r' Muc.li..r Model serial ^r"No. 32666 fi.orn the appellant's shop. The rvitncss weut to the appellant's home and requested t'r'orn liirn an explanation horv lte had acrluilctl tlrc coolcr'. IIc plotlrrccd the sale agreelnent Exhibit I) L 'l'ltc coolcr rvas takcrr to Kanrpala Central Police Station and later transporled to Soroti. It was produced as exhibit in evidence in Soroti Court Criminal Case No. 403 ol' 1994. IO

In his evaluation ol det'ence the learned trial judge held that there was clear e.",idence that the tilst rcsy:onclcnt's coolcr Mucllcr Model "M" serial No. iltltro rvhich lrerl bccn slolcn ll'onr Soroti rvas the one recovered li'orrr the appellant's shop premises. 'l'he suspects who had stolcn thc said cooler had been. charged and ionvicted in the crirninal--court. The crinrinal coult had nraclc au orclcr rcturrring thc coolcr.

The learned trial judge did not at all consider the date when tlie appellant bought his cooler and the date when the respondent received a report of the theft of two of their coolel's. He did not also consider when they started searching for their stolen coolers and when they eventually allegedly found one of them.

Thc lcarncd trial jtrrlgc tlitl rrot,.'trnsitl,.'r'tltlrt llre rrppcllrrrr( lrrrtrglr( lriri cooler in Novembel 199i. This u,as rvell befole July 1994 when PWI received the report of the thcfi ol'the respondent's cooler. The suspects were arrested in November 1994. In July 1995 DWI stalted looking tbr the first respondent's coolers rvhich had been stolen frorn Kyere and Serele. On 22"'r July 1995 Dwl whilc bcing acconrpanicd by DW2 lbund ^acooler at the appellant's prcnriscs at Natctc and inrporrrrtlctl it. 'l'lrc appellant explained horv hr'htd acquired the cooler and produced the salc aqreL'urents. -l-hc cotrrt rccorcl irr Soroti (]r'inrinal (lasc No. -l ol' ¹⁹⁹⁹

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Uganda Vs I'atricli Enrorut autl Iklbcrl \Yusilic \\,Lrs ll()t llnrrlrrcctl iu court. In view of the series ol events, it is difficult to see the nexus between the convicted persorls in the above case and the appellant. I am inclined to accept appellant counsel's argulrent that the respondent did not know the serial numbc'r of the cooler that was seized ll'orn the appellant's shop. That is the reason why they did not indicate the serial nurnber on the seizure note exhibit PIII. l0 L5

I respectfully agree rvith the principle in Hollington Vs Newthorn & Co. Ltd. (supra): With due respect, tl.re Iearned trial .judge was wrong to base and deterurirre orvnership of the c.ooler on the proceedings in the criminal case in the courl at Soroti without looking at the court record. After hearing both counsel this coult sent for the court rccord of Criminal Case No. .103 of 1994 Uganda Vs Emorttt and Robert Wasik. On careful perusal .of the record in the aforesaid criminal case we found that the charge sheet did not indicate the serial number or the nrodel of the cooler that was stolen. The witnesses who identified the exhibit did not qucte the serial nuurber'. They identified the cooler merely by its appearance. DW I Obeti did not at alt identify the cooler during the crinrinal tlial as l're testified in the Lligh Court. DW2 did not identiff the t0 t5

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cooler by its serial nurnber either. 'l'he tlial magistrate did not rnake an order rc'ttrrrtirrg tltc'ctrolr'r'to tht' rcsprrrtdcrtl. ll rvls llrc slltle rtllortlt-Y rvlro on 26'i'April 1996 wrote a letter to the District CID Officer Soroti directing him to return the nrilk cooler to the first respondent.

On the evidence on record I arn ofthe considered view that the appellant proved on the balance ol'probabilitics that hc was thc larvlirl owucl ol'tltc coolcr, u,hich \\,rs s!'izc(l h5 thc lcsporr(lcnts' rL',('nts. llrt' :rppcllrrrrl's claim in detinue and conversion would succeed. He would be entitled to genelal damages.

The appellant claimed for the retum of the cooler or its equivalent in ttloltr't!lrv tcln)s rn(l slrccitrl tllrnrlrglcs lilr loss ol' irrctlrrrr'. llc tlitl not, however, in his pleadings specity the cost ol'the cooler. He-orlly.testitied in evidencc that hc bought thc sccond harrd coolcr at thc cost ol'two r:rillion shillings.

It is trite law that special damages must not only be pleaded. They must also be strictly ploved.

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According to his pleadings and his oral c'r'idcrrcc in cottrl, tht- nppt'llanl stated that he used to sell 2,000 litres of rnilk per day at a gross price of shillings six hundred (600/-). His net profit would be two hundred shillilrgs 1()()i- P,-'l l Iitle Ilc.lrrittlc.l t() Ilil\!' Ilir(l il Il)()ll()l)ol1 ol lltrll business in the area. There is no. other witlless who testifled to that apart from the appellant. He did not produce any books of account to support his claim. In nry vierv the appellant did not sulliciently prove thc special darnages regarding loss of income.

Appellant's counsel has implored court to award the appellant-general damages instead of special damages because a period of almost eleven years has elapsed since the seizure of the cooler, and it is difficult to calculate the actual loss the appellant might have incurred. He relied on

Robert Cuossens Vs Attorney General Supreme Court Civil Appeal $\overline{5}$ No. 8 of 1999.

I respectively agree with the statement of the law stated therein in, that pre-trial loss of earnings may be left to the trial court for assessment together with pre-trial loss as part of general damages. The appellant $10$ must have lost profits because of seizure of his milk cooler. This was a second hand cooler. There is no evidence on record of the period he would have continued to use it had it not been seized. According to the appellant's own evidence there were other milk cooling plants on the market. As a prudent businessman he was bound in law to mitigate 15 damages by getting another cooler.

Appellant's counsel also concedes that his prayer in the High Court for the award of eight hundred million shillings was unreasonable. He has prayed this court to award the appellant one hundred million shillings. I $20$ am of the view that 100m/- is very much on the high side. I would award the appellant twelve million shillings as general damages for the whole case.

In the result I would allow this appeal with costs in this court and below. $25$

Dated at Kampala this ....................................

# JUSTICE OF APPEAL

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

CORAM: HON. LADY JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ HON. LADY JUSTICE C. N. B. KITUMBA, JA HON. LADY JUSTICE C. K. BYAMUGISHA, JA

#### CIVIL APPEAL NO.36/03

#### **BETWEEN**

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EPHRAIM KIZITO::::::::::::::::::::::::::::::::::: **::::::APPELLANT**

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- 1. UGANDA DAIRY CORPORATION ATTORNEY GENERAL:::::::::::::::::::::::::::::::::::: - [Appeal from the judgement and decree of the High Court of Uganda at Kampala (Katutsi J) dated 25/02/02 in HCCS No. 71/97

### JUDGEMENT OF BYAMUGISHA, JA

I had the benefit of reading in draft form the judgement prepared by 25 Kitumba, JA. I agree with the reasons she has given in allowing the appeal. I have nothing to add.

Dated at Kampala this. Z. ...day of. Avg. .................................

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寻

C. K. Byamugish **Justice of Appeal**

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## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

CORAM: HON. JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ HON. JUSTICE C. N. B. KITUMBA, JA HON. JUSTICE C. K. BYAMUGISHA, JA

## CIVIL APPEAL NO. 36/2003

## EPHRAIM KIZITO :::::::::::::::::::::::::::::::::::: VERSUS

1. UGANDA DAIRY CORPORATION ATTORNEY GENERAL ::::::::::::::::::::::::::::RESPONDENT $2.$

(Appeal from the judgement and decree of High Court of Uganda at Kampala (The Hon. J. B. Katutsi) Given the 25^th day of February 2002)

# JUDGEMENT OF THE HON. DEPUTY CHIEF JUSTICE

I had the benefit of reading in draft the judgement prepared by Hon. Justice C. N. B. Kitumba, I agree with the reasons for the decision and orders she proposed. I have nothing useful to add.

Since, Byamugisha J. A holds a similar view, this appeal is allowed.

The Judgement and decree of the High Court are hereby set aside. The appellant is awarded general damages in the sum of 12 million and costs in this Court and High Court.

Dated at Kampala this ........ $3rd$ ....day of Myful v 2005.

L. E. M. MUKASA-KIKONYOGO HON. DEPUTY CHIEF JUSTICE

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