[1997] UGHC 12

# THE REPUBLIC OF UGANDA

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

CIVIL SUIT 870/95/

MUKASA VINCENT: ::ttihi:Hi:u:!n:tnnni:tuPLAINTIFF /

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NILE SAFARIS LTDnnnHnnntjnniHitnHnmDEFENDANT BEFORE: THE HONOURABLE MR. JUSTICE I. MUKANZA.

## JU PGM ENT»

The plaintiff in this case filed an action against the defendant seeking for defendant do pay to the plaintiff Uganda Shillings 7.500.000/= being the value of prevailing court rate from the date of filing this suit and from date of filing this suit and from date of judgment to payment of the decretal sum in full. He further prayed for costs. orders that the defendant doreturn to the plaintiff his vehicle in good mechanical condition and in the alternative and without prejudice to the prayer the the vehicle. He also brought an order for general damages. Interest at the

According to the plaint at all material times the plaintiff was the lawful equitable owner of motor vehicle Toyota Carina Saloon, Registration No. 193 UBH Engine No. 3A\_5342608 having lawfully purchased the'said vehicle from the registered owner there of centres Auto Parts Limited Plot No.26/28 Ben Kiwanuka Street P. O. Box 31277 Kampala in the sum of Uganda shillings 7.500.000/= on the 30th July, 1995.

On or about' the 1st August 1995 at Kampala under ^a contract of hire and pecific request of the defendant the plaintiff agreed to hire out the said month vehicle to consideration of payment to the plaintiff of the sum of shillings 500.000/ ⁼ . upon ^s the defendant on self drive basis for a period of one

On the aforesaid date the plaintiff and the defendant did enter into a hire

agreement in respect of the said vehicle and upon the term set out above the plaintiff duly surrendered and delivered the vehicle in good mechanical condition to the defendant who duly took possession thereof and paid Uganda shillings $500.0007$ therefor in two instalments on the 11th and 13the September 1995.

Despite several demands by the plaintiff the day has to date failed refused and or neglected to return the said vehicle whereby depriving of the use and possession thereof. The plaintiff contended that he is entitled to return of his vehicle or payment of the monetary value thereof and further claims general damages for loss of use of the vehicle.

In its written statement of defence the defendant admits only in so far as the vehicle would still be available excepting the disappearance of the subject matter through extraneous and irresistible circumstances as occurred in this case.

That the plaintiff was neither entitled to the return of the vehicle nor to the value thereof because the contract was frustrated as the vehicle was stolen as per Annexure A2 thereof and that was communicated to the plaintiff as was confirmed by his lawyers and further stated that the value was highly exaggerated and the defendant never converted to his own use the said vehicle.

The defendant further contended that the suit is misconceived and frivolous and disclosed no reasonable cause of action.

At the commencement of the trial of this case the following issues were agreed upon.

- whether the defendant had refused to hand over or return the $(i)$ vehicle to the plaintiff. - whether the contract of hire as between the plaintiff and the $(ii)$ defendant was frustrated.

whether the plaintiff is entitled to the reliefs claimed. $(iii)$

Before the court started to receive the evidence Mr. Nkruziza counsel for the plaintiff had the occasion to address the court and submitted tight that there

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are certain facts agreed upon in that the plaintiff is the lawful owner of motor vehicle described in the plaint which vehicle he purchased in the sum of 7.500.000/= shillings on 30th July 1995. Further that the plaintiff under a contract of hire executed with the defendant company on 1.8.95 hired out the suit vehicle to the defendant on self drive basis for a period of one nonth in consid whereafter the defendant paid a sum of 500.000/= shillings.

The plaintiff as PW1 examined himself whereas on behalf of the defendant two witnesses were called. DW1 being the Managing Director of the defendant company whereas DW2 was the Director of Vocational Tours Company. ON ISSUE NO. 1:

It was agreed between the counsels that the question of conversion and detinue be included on this issue. The first issue was however or refused to hand over the vehicle. Exhibit P1 showed that Nile Safari Ltd the defendant agreed to subhire vehicle registration No. UBH 193 on self drive basis from 1st August 1995 for 30 days up to 30th August and that the vehicle would be returned to Mr. Vicent the plaintiff by the defendant in the same condition.

The agreement continued that the driver of the vehicle must have a valid driving permit and in case of accident he must report to the police within 24 hours. The plaintiff gave his version of the events that led to the parting away with his vehicle. This was reflected in the pleadings and evidence he gave in court. He testified that there was no other agreement except exhibit P1. He testified that when he prayed for the return of the vehicle DW1 told him that it was in possession of someone else to whom it had been hired and had not returned it and was advised to be patient. He testified that the vehicle was still with DW1 (the defendant and that there was a breach of the contract. In fact the plaintiff believed that the defendant had the vehicle and refused to return. This belief is even reflected in the plaint. During cross examination he replied that he was award that the vehicle was stolen and that he that information from the defendant; their letter. of the defendant that the vehicle in question had been sold. Even in their letter to Nile Safaris Ltd the counsels appearing for the plaintiff had this to say in part gave his evidence in court he was not aware. 4' but went on to reply that when he that the theft of thd vehicle had been reported to the police. DW1 and DW2 also gave their version . DW1 admitted having subhired the vehicle in question and latter received a report from DW2 that the vehicle had been stolen Exhibit D4 clearly shows that on 3rd October 1995 a report was made to the police on'behalf

> "On the first of August 1995 as you are well aware you entered into agreement of hire of over clients motor vehicle Reg. No. 193 UBH at a monthly rate of Uganda shillings 500.000/= where of you have since settled; pay ments for only the month of August, we attach herewith the relevant documents as evidence of this contractual obligation. Further still on the 8th September 1995 you failed to return the aforementioned vehicle to our client and instead informed him that the motor vehicle was stolen or lost. In lieu of the above our client demands immediate payment of the cost of the vehicle valued at Uganda shillings Seven million and five hundred thousand...,"

So in accordance with the police report exhibit D4 and the latter by the plaintiff's counsel to Nile Safaris EXD1 and the testimony the plaintiff he gave in therefore subscribe to the submission of Mr. Nkruziza on that the defendant not conversion and detinue the contrary I seem to agree with Mr. Muhwezi ^| is liable on court it is abundantly clear that at the time he filed this instant case he was aware that the vehicle in Question was stolen and could not therefore be returned. ^I do that the facts upon which the claim is based on the plaint are not true that the j defendant refused to return the vehicle to the plaintiff.

to make a All along the plaintiff knew that the vehicle was no longer there and opted I • false claim that the vehicle was still with the defendant. From what has

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As regards the second issue as to whether the contract of hire between the plaintiff and the defendant was frustrated.

$x$ $\gamma$ $y$

transpired above the first issue is in the negative

As already explained in the last issue there was evidence that the plaintiff $\mathcal{M} = \{ \mathcal{M} \in \mathcal{M} \}$ hire the vehicle in question to the defendant company self drive and DW1 as a 的名称 计程序 Managing Director of the said company subhired the said vehicle to another tourist company managed by DW2. Evidence show that DW2 subhired the paid vehicle to one of their client called Nyeko who subsequently disappeared with the vehicle. But before this DW2 took some precautions. The particulars of Nyeko were taken. His driving permit a photostat copy of which was shown to this court as exhibit D3. And immediately it was ascertained that the said vehicle had moved out of the Hotel where Nyeko had booked in the theft was repointed to the police as per exhibit D4. So in essence DW2 applied business precautions by taking out all the necessary identification from the person to whom the vehicle was hired but theft of the vehicle could not be prevented. No provision was made in the agreement who would meet liability in the event of the accident. According to R. V. Hoggan in his law of contract in East Africa at page 178. It is stated that the parties should provide for the future happenings but nothing was provided for such information seen incidents like accident which according to Osborn on concise law dictionary fourth Edition page 6. In the popular and ordinary sense denotes an unlooked for mishap or untoward event which is not expected or designed (per lord <u>Macnaghten Portion vs. Thorley 1903 AC at p 448.</u>

And in the case of Twentsque Overseas Trading Company vs. Uganda Factory Ltd/EACA at p 179. It was held that frustration is a sort of a short hand it means the contract has ceased to bind the parties because the common basis upon which mutual under standing was based has failed. Cheshire and Fifoot Sixth Edition page 479 on the doctrine of frustration had this to say -

"what the courts have held in such case is that if some catastroplic

event held in such case is that if some catstoplic event occurs for which neither event is so that the venture to which the parties themselves committed is radically different from the originality contemplated then the contract is forthwith discharged see Parkinson (Sir Lindsay) and com vs. works and public buildings com missioner s (1949) 2KB 632 at page 665. [1950] ¹ ALLER 208 at page 217 per Asquith LJ. Also see Crickle Wood Property and Investment Trust Ltd. 1945 ¹ ALLER page 252 at page 255 per Lord Simon, Davies contractors Ltd vs. Fareham UDC 1956 AC 696 at p728\_9 per Lord Radcliffe." party is responsible and if the result of that to destroy the very basis of the contract now find

And in National Industrial Credit Uganda Ltd vs. C. D. Patel t\a Western Transport Civil Suit No. 602 of 1970 before Saldnha J. It was held that a hire purchase agreement could be frustrated by theft provided there was no cluase in the agreement was not frustrated.. Howe ver in the instant case there was no such provision.

However Chitty on contract specific contracts para 2239 page 103 entitled obligation to hirer -

> "The hirer is liable to pay the agreed hire to return the chattel at faulf or that there was good cause for not returning it. the expiration of the agreed period, and to pay the cost of returning. The jhirer may escape liability for failure to return the chattel if he can prove that the chattel was lost without the loss being due to lies

Because what transpired above Mr. Nkruziza submit ted that the of defendant could not escape liability to return the vehicle because self drive did third party like in the instant case where the vehicle being hired to ^a not mean hired to ^a third parly like in the instant case where the vehicle the vehicle beiijg the convectional tours of which DW2 was subhired to was il Managing Director. He

ted that the defendant could be liable for conversion and definue. I was referred to clerk and Lindsell on torts 12th Edition paragraph 904 page 504 and ie case of Bellet vs. Mingay IKB at p 281 at p 283 是中国中国国家。 $\mathcal{H}^{\text{max}}$ $\sim$ F. In the present case therefore it seems to me that the defendant was $\mathcal{X}_n,\mathcal{X}_n$ $\sim$ properly sued in definue in that on receiving a demand for the return of the articles he refused or neglected to return them and failed to prove that in parting with them he had not stepped outside the bailment all together on that basis there is a remedy against the defendant in torts because the circumstances in which the goods passed from his possession and ultimately disappeared were outside the per view of the contract of bailment altogether or at any rate, were not shown by him to be within. I am of the opinion the defendant has failed to prove his case."

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I am of the view that the above case is not quite relevant to the instant case in that the defendant was not being sued in detinue in conversion as per para 904 of clerk and .......rather he was being sured in hire agreement for his refusal to return the vehicle. And this question of bailment does not come into play here. And I also find that the defendant is not liable for the torts /conversion and $\rlap{\hspace{0.1cm}I}$ detinue.

And as regards the question of hiring the vehicles to a third party was concerned when the plaintiff was cross examined about the matter PW1 replied that he did not limit the defendant from hiring the vehicle to third party. He said what mattered was for him to get the money as per the agreement. DW1 testified that it was their nature to hire vehicles and hire item out to other clients and this was not contradicted by the plaintiff. There was apparently two provisions in the hire agreement to stop this.

From what has transpired above the answer to issues No. 2 is in the negative and as such the plaintiff is not entitled to any remedy. In the premises

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therefore this suit stand dismissed with costs.

I. ^M UK *ANZA JUDGE*

#### *7.4.1997*

10.4.1997:

Nkruziza for the plaintiff

Muhwezi for the defendant

Parties absent

Judgment is read and signed.

I. MUKANZA

JUDGE

10.4.1997

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

### CIVIL SUIT NO. 870 OF 1995

VINCENT MUKASA PLAINTIFF

#### VERSUS

## NILE SAFARIS LIMITED DEFENDANT

#### DECREE IN ORIGINAL SUIT

THIS SUIT coming for final disposal before Justice I. Mukanza in the presence of Counsel for Plaintiff Peter Nkurunziza Esq. and in the presence of Counsel for the Defendant Muhwezi Esq. IT IS HEREBY DECREED that the suit be dismissed with costs.

day of GIVEN under my hand and the Seal of this Honourable Court this **7\***

DEPUTY REGISTRAR

WE CONSENT TO THE ABOVE:

.. zTJLv COUNSEL FOR THE PLAINTIFF

COUNSEL FOR THE DEFENDANT

DRAWN AND FILED BY:-

M/S BITANGARO AND COMPANY ADVOCATES DIAMOND TRUST BUILDING PLOT 17/19 KAMPALA ROAD P. O. BOX 7898 KAMPALA.