[1992] UGSC 34

Bonal

THE REPUBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA AT MENGO

(CORAM: MANYINDO, D. C. J., PLATT, J. S. C. AND SEATON, SJ. S. C.)

## CIVIL APPEAL NO. 1 Or 1992 **BETWEEN**

JOSEPM MUSOKE 1:::::::::::::::::::::::::::::::::::: APPELLANT

## $A$ N D

1. DEPARTED ASIAN'S PROPERTY CUSTODIAN BOARD

<pre>1:1:1:1:1:1:1:1:1:1:1:1:1:1:1:1:1:1:1: 2. ANGUSTINE MBUGA

> (Appeal from a judgment of the High Court of Uganda at Kampala Mr. Justice G. M. Kato) dated 3rd September 1991 in H. C. C. S. No. 1355 of 1984)

## JUDGMENT OF SEATON, J. S. C.

The appellant (original Plaintiff) is a business man. He sued the first and second respondents in High Court Vivil Suit No. 1355 of 1984 in Kampala. (I shall hereinafter refer to the parties by their designations in the High Court suit.)

In 1973 the plaintiff rented a building on Plot No. 18 Egin Rd. in Masaka Town. It was owned by an Asian, Ratital B. Sadrin, to whom the plaintiff paid shs. $325/$ = per month. Of the two rooms in the building occupied by the plaintiff, one was used as a shop. The other served as a sleeping quarter.

In 1974 or 1975 Mr. Sadrin left Uganda. Thereafter the Plaintiff received a letter from the 1st Defendant. It stated that with effect from January, 1975 the 1st defendant had taken over the responsibility of the building and all the rent should in future be paid to the 1st defendant.

From January 1975 onwards the plaintif. paid rent to the 1st desendant. In January 1984 the Plaintiff went to Jima. He left behind his shop and stock-in-trade in the care of his assistant Joæph Mukasa.

$2/...$

On 17/1/84 one Isingoma, an afficial of the 1st defendant, accompanied by Police Constable Kiwanuka and some others entered the premises. They removed the plaintiff's properties from the shop and she sleeping quarters which they locked and then they departed. Some of the shop was re-allocated. Other properties were taken by officials of the 1st defendants.

On hearing of these events, the plaintif. returned from Jinja. He found his shop locked and was unable to gain entrance. On $7/2/84$ a letter on his behalf was written by Advocates Mayanja & Matovu to the 1st respondent requesting enlightenment in regard to these matters. The plaintiff followed this up by visiting the 1st defendant's Executive, representative in Masaka and requesting explanations of the actions above described. He obtained no satisfactory reply. On $17/7/84$ , another letter was sent to the 1st aerendant by the plaintiff's advocates. The letter enclosed a list of the plaintiff's business and personal property that had been removed by the 1st defendant's servants/employees. It also gave notice of intention to sue for $\frac{1}{2}$ . 500,000/= general damages and $\frac{1}{2}$ . 5,876,700/- special damages.

In the prayer of his plaint, the plaintiff asked for Judgment severally or jointly against the defendants for:-

- (a) shs. $11,487,000/=$ (new currency) being the value of his properties unlawfully taken and converted; - (b) shs. 100,000/= old currency per month from January 1984 to April, 1987 and thereafter shs. 100,000/= new currency per month till Judgment being loss of earnings; - (c) An order that he was the lawful tenant in the said shop; - (d) Costs of the suit.

Subsequently H. C. C. S. No. 1355/84 was filed.

Prayer (c) of the plaint was denied. The learned Judge held that no tenancy agreement existed between the plaintiff and the first defendant; the plaintiff was occupying the premises temporarily without any certificate of allocation although he had a form indicating what rent he had to pay.

$3/...$

With regard to prayer (a), the learned Judge upheld the plaintiff's claim as regards liability for conversion of his properties and awarded the sum of shs. $56,866/=$ (new cunrency) as special damages against the 1st defendant. Prayer (b) for loss of earings was disallowed. Prayer (d) regarding costs was granted against the 1st defendant. The suit against he 2nd defendant was dismissed with costs.

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The plaintiff has not arrealed against the decision regarding the absence of a tenancy agreement (prayer C). His objection is with 'tegard to' the decision regarding the other prayers in the plaint. The memorandum of appeal sets out four grounds as follows:

- 1. The trial Judge erred in law when ne held that in assessing damages in the tort of conversion, the appellant is entitled to the value of the property as at the time of conversion rather than the current value of the property at the property at the time of Judgment. - 2. The damages awarded to the appellant for the value of his shop commodities were entirely inadequate being too small and the Trial Judge applied wrong principle. - 3. The trial Judge erred on facts when he held that the appellant had not proved loss of earnings. - 4. The trial Judge erred in holding that the second respondent was not responsible for the loss suffered by the Appellant and the trial Judge was wrong in awarding his costs as against the appellant.

I find it convenient in this judgment also to deal with the first two grounds together; as they were combined for argument by counsel for the appellant. Then I shall deal with ground 4 (ground 3 having been abandoned).

The grounds one and two raise two questions. The major one is; What date or time is to be used for the valuation of properties in order to assess the measure of damages for the bort of conversion? The minor one is: what was the proved value of the properties that were converted in the instant case?

The learned/Judge in his Judgment atated that thedate or time . to be used for valuation of the properties is the date of the conversion.

$4/...$

He accepted as good law the case of CAXTON V. SUNDERLAND $(1934)$ A. C. 178, 192 cited by counsel in the closing addresses. The Judge's attention was not drawn to the other cases cited to us during the hearing of this Appeal; ROSENTHAL V. ALDERTON (1946) 1 All E. R. 583; SACKS V. MIKLOS (1948) 1 All E. R. 67; MUNRO V. WILMOTT (1948) 2 All E. R. 983; SOLIOWAY V. MCLAULIN (1937) A. C. $_{2,7}$ (P. C.) and HENDERSON V. WILLIAMS (1894) 1 J. B. 521, 532.

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The learned Judge held in his Judgment (at p. 75 of the record) that:-

> "The measure of damages in conversion is the value of the subject matter at the time of conversion. In this case the damages the plaintiff is entitled to is the value of the property which were in the sleeping room and the shop ... "

Counsel for the plain if submitted that the learned trial Judge failed to take into account the qualifications to the general principle outlined.

The authorities cited appear to agree on the general principle that the measure of damages is the value of the properties at the time of the conversion. They do contain 'provisos', exceptions or qualifications to the general principle. In an appropriate case the plaintiff may be entitled to additional damages if the goods have risen in market value between the converstion and Judgment. An example of this was SACKS V. MIKLOS (1948)2K. B.23, (1948), All E. R. 67, C. A. The case arose out of a gratuitous storage by the defendants of house \*furniture belonging to the plaintiff. From 1940 to 1943 the plaintiff used to visit the first defendants' house. Thereafter he ceased visiting them and never communicated with them, or kept them informed of his address. In 1943, being in need of the room where the furniture was stored, the defendants wrote to the plaintiff twice at the address obtained from his Bank Manager. They also attempted more than once to telephone him. Ass all efforts of communication $h_{nd}$ railed, the defedents sent the furniture to firm of auctioneers, the second defendants, $5/...$

who sold it for £15. In 1946 the plaintiff demanded the return of the furniture and sued, claiming damages on the basis of its greatly increased value. The trial Court found that the first defendants were agents of necessity and that they were entitled to sell the goods as all attempts to trace the plaintiff had failed. On appeal it was held that those facts gave rise to no agency of necessity since they exhibited nothing in the nature of an emargency compelling the first defendant to (that sell the furniture; /all the defendants were guilty of conversion; that if the plaintiff received the first defendant's letters in 1993 he then knew, or ought to have known, that the furniture would be sold if he did not collect it, and was through his inaction himself the cause of the loss; that if, on the other hand, he did not receive those letters, he was entitled to damages in respect of the increase in the value of the furniture between the dates of the sale and of his discovery of it; and that the case must be remitted to the county court judge for the necessary finding and for assessment of damages accordingly.

In the instant case, learned counsel submitted that the appellant was entitled to the value of the goods at the time of Judgment because as soon as he learnt of the conversion, he went to the offices of the first defendant and when he was refused satisfaction, he took Court Action promptly.

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The learned Judge summarised the evidence regarding the goods lost or taken away by the 1st defendant's servants as follows (at $pp. 7 l-2$ ):

> "According to the evidence as given by both sides there is no doubt that when shop and the sleeping room were locked up, there werd some propery inside belonging to the defendant and one Namukasa, The only issue in dispute is how much of this property was in the shop or sleeping room. According to the plaintiff the property was as shown in Exh. p5 and p6 but according to the defence the property was as mentioned in EX. Dl and EX. D.2.

The difference between the plaintiff's list and the defence list is that the former shows more items while the latter shows very few items. Mr. Sekandi, the learned counsel for defence in his forceful submission attacked the Plaintiff's

$6/...$

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list as being something of an afterthought as it was complied some 7 years after the incident. With due respect to the learned counsel, I do not see anything suggesting that the plaintiff's list was complied 7 years late, the plaintiff filed this case in 1984 when the cause of action arose and his plaint was accompanied by the list of items which were locked up in the shop and sleeping room; the list tendered in Court was substantially the same as annextures to the plaint except the prices which are different from the annextures and the reason for the difference was given by the plaintiff as being to match the items with the current prices."

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So there was some evidence. It was for the Learned trial Judge to believe it or not (bearing in mind that special damages must be strictly proved). The learned Judge did accept the plaintif's evidence as to the quantum of goods lost. He did not, however, accept the evidence as to their value, as being the measure of damages for the tort that had been committed. The learned trial Judges' views on this aspect of the claim were set out (at pp.73-74 of the Judgment) as follows:-

$"$ The next issue to be considered in the value of the goods lost or taken away by 1st defendant's servants. The plaintiff fixed the price of the items found in the shop at ten million, two hundred and eighty fine thousand shillings $(10,285,000/=)$ and those found found in the aleeping room at one million, two hundred and two thousand shillings $(1, 202, 000/=)$ ..."

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It appears from the record that the plaintiff said his valuation was based on inquiries he had made from several shopkeepers selling similar properties in the Masaka area. Unfortunately ne did not call those shopkeepers to testify. Nor did he adduce invoices 'or other documentary evidence in support on this point.

In his closing address at the trial, defendants' counsel criticised this evidence of the plaintiff's regarding the 1991 value of the properties. Such criticism was accepted as appropriate by the trial. judge in his judgment (at p 74). He therefore took the 1984 figures as being appropriate basis for the assessment of damages. $\mathcal{H}\cdots$

At the hearing of this appeal, it was submitted by Counsel for the defendant that the plaintiff should not have been allowed to adduce evidence as to the increase in value the goods because this was not pleaded in the plaint.

It is clear that special damage, as was claimed by the Plaintiff to have been suffered, is such a loss as the law will not presume to be the consequences of the defendants' act. Such damage, is the learned. editors of Odger's 'Principles of Pleading and Practice," 21st ed. point out; (at p. 164): -

> ".... depends in part, at least, on the special circumstances of the case. It must therefore always be explicity claimed on the pleadins, and at the trial it must be proved by evidence both that the loss was incurred and that it was the direct result of the defendant's conduct...."

It appears from a perusal of the record that in the amended plaint, the phintiff did not explicitly claim that the value of the properties . taken from his store in 1984 had increased in market value by 1991. Nor did he explicitly claim that he had lost the profits which he would reasonably have expected to gaip as a consequence of the locking up of some of his properties and the taking away of other properties by the defenuants servants/ employees.

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What was therefore the task if the Judge in the instant case? It was to examine the evidence in order to ascertain whether or not there was anything which justified a departure from the general principle

that the time of conversion was the relevant date for the evaluation of the properties converted. Did the learned Judge fulful this task? He appears to have done so in the above passages which I have quoted from his judgment:-

> I would accordingly reject grounds one and two of the Appeul. I now turn to ground four

In his amended plaint, the plaint, the plaintiff averred that all his household goods and shop commodities were unlawfully taken and converted by the defendants to their use. The learned Jud-e in his judoment adcepted that the first defendant had committed the acts complained of; but he rejected the alleged guilt of the second defendant. He stated (at p.73 of the record) as follows:-

> " Regarding the 2nd defendant, there is no iota of evidence establishing that he was responsible for any loss of the plaintiff's property and as such he cannot be held liable for the loss of tht property."

As this is a first appeal, it is the duty of the court to review the evidence in order to determine whether there was just fication for $\cdot$ the learned Judge's finding of liability on the part of the second defendant.

according to the evidence on record, the plaintiff on learning of the eviction on $17/11/84$ , went to the first defendants' office in Masaka and asked Mutambo David, who was in charge of the first defendants' affairs, why his shop nad been locked. The latter told the plaintiff that the shop had been removed from him and given to another person, whom at the time he did not know but later learnt he was the second defendant, a government servant. The plaintiff also testified that he asked David Mutambi (presumably the same Mutambo David) about his property and he was told that:-

> "Since I was allocated the shop. when there were property therefore a new allocatee should take it with all the property."

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Joseph Mukasa (PW2)in 1984 was working as a salesman in the plaintiff's shop. On $17/1/84$ he was present when Isingona, the first defendant's employee came to the shop with two men and ordered him to leave the shop. Mukasa went out, leaving behind all the Plaintiffs properties that were in the two rooms of the shop. At the time there was also the property of a tailoress Regina Namukasa which was kept in the shop. Isingoma locked the shop with all the things inside. Regina Namukasa was PW3. She testified that she was permitted by the plaintisf to do tailoring in his shop since 1982. In January

$9/...$

1989 she had there a sewing machine, some customers' clothes, bench and a stool. After learning the shop had been re-allocated, she went to Kayisi, who was then looking after the shop for the new occupant, and he allowed her to take out her property in the presence of a policeman and some other people.

The second defendant testified that the shop from which the plaintiff was evicted was handed to him by Isingoma, the second defendant defendant's employee (who was deceased at the time of the trial) on 15/2/84. At the time a policeman P. C Kiwanuka was present, who counted out the things which were in the snop. Kiwanuka and the second defendant as well as his agent, one Kayizi, signed for these articles. The second defendant also testified that when he entered the articles signed for were there, but later on one of the former tenants of the plaintiff took some of the things and some were taken by Isingama an official of the first defendant. The second defendant did not know what happened to those things later on. He denied having consented any of the plaintiff's property.

, In cross-examination, the second defendant changed his testimony and alleged that it was Kiwanuka, not Isingoma, who counted the things in the slmp. He also denied that he was present when the list of properties in the building was being complied.

Kayizi (D#2) the friend and agent of the second defendant, testified that after the shop had been allocated to the latter, both of them went with some other persons to the shop with Isinroma and Mayambala, employees of the first defendant. Mayambala unlocked the shop. Insiae were "same few things" which were recorded and signed by Kayizi, the second defendant, P. C. Kiwanuka, P. C. Nakimuli; and one Kayemba John, a friend of Kayizi.

They prepared two lists, one for properties found in the shop and one for properties found in the back-room. After that, Mayambala looked for a wheelbarrow had it loaded with the properties and took them away in the company with Isingoma and the second defendant. Kayizi then locked

$10/...$

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the shop. About 1% months later the second defendant gave Kayizi some policemen who came and broke the back door in Kayisi's presence and removed from the room some of the properties therein. A list of those things was compiled and they also were taken away to the first defendant in a wheelbarrow. A lady $(P\#3)$ also took away a sewing machine and a box containing some things, for which she signed.

The last Witness was David Mutamoo (DN4), a business man who in 1984 was employed by the first defendant. He testified that when the plaintinf was served with a notice to quit because of non-payment of rent, he locked his shop and disappeared. Later on his shop was opened by the plaintif's present. The woods inside were prought to Mutamoo's office, who stored them. Later on the plaintiff came for his property, which included domestic things out not for selling in a shop. They were given by Isingoma to the plaintiff who took them away in a wheelbarrow. Mutambo admitted he was not present when the plaintiff's store was locked or when it was opened. Much of his evidence was therefore hearsay.

The learned Judge found that the evidence given by the defence witneses was materially contradictory and could not be taken seriously. He accepted the evidence given by the plaintiff as truthful. He found the items listed by the plaintiff in Exhs. p5 and p6 to be his property which was the shop and sleeping room respectively at the time the i. premises were lacked by the first defendant's agents or servants.

I believe that finding of the learned Judge to be justified by the evidence. I do not find any reason to say that he erred in his finding , of the lact th t there was "no idta of evidence" establishing that he. was responsible for any loss of the plaintiff's property and therefore he could not be held liable.

Where I am in some disacreement with the learned judge was in his awarding costs to the second defendant as against the plaintiff. Learned Counsel for the plaintiff submitted that the costs should h ve been ordered to be paid by the Landlord, i.e. the first defendant,

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who put the second defendant in possession; that all the confusion was caused by the first defendant, so the latter should pay the second defendant's costs as well as the plaintiff's.

In Daniel Sempa Mbabale V. W. K. Kiza & ors. (1985). H. C. B. 46 (Un rep) the plaintiff's claim was that the defendants purchased part of the land which was for burial grounds and that that he was entitled to recover this from them. It was held oy Odonki J. (as he then was) that the plaintiff had a right to sue them severally and jointly because a common question of law would arise if separe suits were brought against/defendants

Order 1 Rule $(3)$ ... of the Civil Procedure kules provide that:-

" all persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act of trans ction or series of acts or transaction is alleged to exist, whether jointly, severally, or in the alternative, where, if semarate suits were briaght against such persons, any common question of law or fact would amise."

It was incumbent upon the plaintiff in the instant case to prove an act of wilful interference, without lawiul justification, with his property in a manner inconsistent with his right, whereby heaves deprived of the use and possession of it.

It must be inferred from the plaintif's evidence, accepted as truthful by the learned Judge, that he believed what he had been told by his salesman Mukasa (PW2), i.e. that there had been wilful interference with his properties that had been left in his shop. When he involving the eviction, he was told by Mutambo (DW4), then the first defendant's employee, that his shop had been re-allocated and that a new allocatee should take it with all the property.

The plaintif, would not know whether the properties were taken away or detained and used by the first or second defendant or by both. In the circumstances, was it reasonable for him to sue both defendants? That was the question the learned Judge had to ask himself. With respect, I believe he either failed to direct himself to this effect or, $12/....$

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If he did so direct himself, he misdirected himself on the answer he should give to the question.

Under 0.27 of the Civil Procedure Act, costs are in the discretion of the court. Costs should normally follo. the event and, in the instant case, the second defendant was successful as he was found not to have been guilty of conversion. However, the plaintiff could not be blamed for having sued the second defendant. The plaintiff was placed in a dilema not because of any actions of his own. I agree with counsel for the plaintiff that the "confusion" was caused by the first defendant; he should therefore pay for it.

I would uphold ground four of the appeal. Accordingly I would allow the appeal in part. For the reasons earlier stated, I would not set aside the Judement of the Lower Court in so far as concerns the measure of damages. I would vary the Judgment as to costs by ordering that the costs of the second defendant of this appeal and in the Court below be paid by the first defendant.

DAT\_D at Mengo this 30th day of June, 1992.

sgd: E. C. SEATON Justice of the Supreme Court

I certify that this is a true copy of the criginal record.

B. R. D. BABIGUMIRA REGISTRAR SUPREME COURT.

### IN THE SUPREME COURT OF UGANDA

# AT MENGO

(CORAM: MANYINDO -DCJ, PLATT, J. S. C., & SEATON - J. S. C.)

#### GIVIL APPEAL NO. I OF 1992

#### **BETWEEN**

JOSEPH MUSOKE :: :: :: :: :: :: :: :: :: :: :: :: APPELLANT

#### A N D

DEPARTED ASIANS PROPERTY 1. CUSTODIAN BOARD

AUGUSTINE MBUGA :: :: :: :: :: :: :: :: :: :: RESPONDENT $2.$

> (Appeal from the Judgment of the High Court of Uganda at Kampala Mr. Justice G. M. Kato, dated 3rd September, 1991.)

# JUDGMENT OF MANYINDO - DCJ:

I have read the Judgment of Seaton - JSC, in draft. I agree with it and as Platt - JSC, also agrees the appeal is allowed in part. There will be an order in the terms proposed by Seaton - $J. S. C.$

DATED at Mengo this 30th Day of June, 1992.

S. T. MANYINDO sgd: DEPUTY CHIEF JUSTICE

I certify that this is a true copy of the original record.

B. F. B. Babigumira Registrar Supreme Court.

# THE REPUBLIC OF UTANDA

IN THE SUPRME COURT OF UGANDA AT MENGO

CORAM: MANYINDO, D. C. J. PLATT, J. S. C. & JATON J. S. C.

CIVIL APPEAL NO. 1 OF 1992

BETWEEN

JOSEPH MUSOKE :::::::::::::::::::::::::::::::::: APPELLANT

$AND$

1. BEPARTED ASIANS PROPERTY CUSTODIAN BOARD

2. AGUSTINE MBUGA

(Appeal from a Judpment of the High Court of Uganda at Kampala (Mr. Justice G. M. Kato) dated 3rd September, 1991)

:::::::::::::::::::::::: RESPONDENTS

IN

#### HIGH COURT CIVIL SESSION NO. 1355 OF 1984

JUDGMENT OF PLATT, J. S. C.

I concur and have only this to add. Recent English decisions have continued to exemplify the principles stated in the Judgment of Seaton J. S. C. in relation the measure of damages in conversion see( Hillesden Securities Ltd vs. Ryjak Ltd (1983)2All E. R. 184). Dated at Mengo this 30th day of June, 1992.

sgd: JUSTICA SUPREME COURT

I cettify that this is a a true copy of the original redord.

$-B. F. B.$ **BABIGUMIRA** REGISTRAR SUPREME COURT