[1993] UGHC 60

## THE REPUL|IC. QF, UGANDA

## IN 5W? HIGH. COURT. OF.. UGAIWA. AT. JAMPAIA

## CIVIL SUIT No. 1092 OF ..1.9.8 ³

MARTIN LUTHER HUTESASIRA : ^s u ^s s: s; *it* : s: *^t* ^s : ? ^s PLAINTIFF

- VERSUS - \ -

THE ATTORt'EY GENERAL :: :: ^s :: :h:: ^s ^s s:: s: : ? ::: DEFENDANT

BEFORE:- The . Honourable Mr. Jus ti ^c ^e J. W. N, Tsekooko

## J U PA. M E N T

The plaintiff Martin Luther Mutesasira instituted this suit against the defendant Attorney General under the provisions of the Government Proceedings Act,

Because of the nature of the claim, I will set out paragraphs 3 and 4 of the plaintiff\* s claim as it appears in the amended plaint dated 15th May, 1986, by way of background of the case.

"3 The plaintiff\*s claim, against , the defendant is for the return of the plaintiff\* s 26 heads of cattle or • • ; their value amounting to Shs.3?600,000/=.

(a) On or about 31st December, 1982, the .plaintiff applied to the Ag. Commissioner for Veterinary Services and Animal Industry to be allowed to make -his 28 heads of cattle to Nakycsasa Government Station for treatment. The said Commissioner by his letter dated 31st December, 1982 allowed the plaintiff to take 28 heads of cattle to the said station • A photocopy of the said letter is herewith attached as annexture "A" .

Pursuant to this arrangement the plaintiff took 28 heads of cattle to the said station on 1st January, 1993 where ' they were received by the Farm Manager Mr. Mbalaga. On the 14th January, 1983? two of the calves died .........

(b) On or about 14111 January, 1983? members of the Uganda Special Force Unit of the Uganda Police, in the course of their employment with the defendant arrested the plaintiff without warrant and took him to Namulonge ....../2

Special Force Barracks where he was illegally detained for 17 days **up** to the 31st January, 1983 when he was released uncondi tionally.

(c) After his release, the plaintiff went to <Nahyesc.sa> to check on his cattle but to his great surprise he found the cattle missing and none of the officials at the station could give a sensible explanation as to their whereabouts or disappearance, 'Whereupon ho reported the matter to the Ag. Commissioner for Veterinary Service and Animal Tndustxy Mr. E. R. Rwamuhanda .

4. The plaintiff will contend that the cattle got lost due to the negligence of the staff at Nakyesasa livestock Husbandary Experiment Unit who failed to guard the cattle as they were duly bound to do or converted the same for 'their own use and the plaintiff holds the defendant vacariously 'liable.

At the hearing the plaintiff was represented by Mr. lutakome. 'Hie defendan. t was represent .d by Ms. Arach, Principal State Attorney.

Five issues framed for determination by court are.?

- 1. Whether the defendant agreed to take custody of the plaintiff's cattle. - 2. Whether the plaintiff's cattle got lost while in defendant's custody. - 3. VZhether defendants' servants were responsible for loss of plaintiff's cattle. - 4. Whether defendant's servants were negligent. - 5. Whether the plaintiff suffered any damages⁵ if so, to what extent.

The plaintiff testified in support of his claim. No other witness testified for the plaintiffs Only one witness testified for the defendant. Ho is Charles Mbalaga (DV/1) . ./3

who was and still is the Farm Manger at the said Nakyesasa Government Stock Husbandary Experimental Unit. I shall hereinafter refer to it as "the Farm".

In his testimony the plaintiff virtually repeated the claim as reproduced above. Essentially he took the animals to the farm for safety because there was unrest in his area. In cross-examination he stated that by unrest he meant that bandits were stealing the animals. His ovzn farm was 4 miles away. About 2 days after his release on 31st January, 1983? he visited the Farm and was told by the Farm Manager, the Farm workers and his (plaintiff's) herdsman that his animals were taken by some Askaris.

Some two female animals had remained at the Farm and were eventually given to the plaintiff together with 2 offsprings. According to the plaintiff he now claims for 210 heads c-f cattle comprising 21 females and 3 bulls representing the original animal. The rest are the progeny supposed to have multiplied since 1983 to-date. He explained how the animals should have multiplied to reach the total of 210.

I will now deal with the issues framed.

Issue TIo. Is Whether defendant agreed to take custody of the plaintiff's animals. Both Mr. Lutakome, Learned Counsel for plaintiff and Ms. Arach Learned Principal State Attorney for the defendant made submissions on the issues. Both Counsel submitted on the issue of consideration and con'tract. I think that such submissions may be relevant on the 3rd, 4th or perhaps 5th issue. I Had asked Counsel to address me on whether there was bailment. Ho useful submissions were made on this.

Hovever, Ms. Arach submitted that the defendant agreed to gratuitously allow plaintiff keep his animals on the farm. That animals remained in custody of plaintiff. . ./4

On the other hand Ur.. Lutakome in effect contends that . animals were in defendant's custody.

There is a relevant letter (Exh. P< 1) written by the then Ag. Commissioner for Veterinary Services and Animal Industry which was referred to by both Counsel. It reads as follows

"The Gfficer-in-Charge, Naljyesasa Livestock Husbandaiy Exp. Unit, P. O. Box 8008, Kampala.

Please assist Ur. U. L. Matcsasira by admitt.in 28 heads of cattle on -the departmental farm.

Please keep the herd separate but carry out all the treatment in the usual manner and cattle should be dipped regularly.-

You should keep records on the drugs these animals and send copies to Hr. 1:1. L. who will bo asked to pay for such drugs used on Mutcsasira,

> Signed (N. E. Masaba) (Dr) Ag. Commissioner for Veterinary Services and Animal Industry"

The letter was copied to the plaintiff.

On the evidence of the plaintiff and DW1, the plaintiff delivered this letter and the cattle to the farm. They wore received by DY/1 and his collogues who provided a place of abode for plaintiff's herdsman. Us. Arach says that this did not amount to custody. Prom the submissions of both Counsel it would seem 'that liability or non liability of the defendant would depend on the relationship that arose between the plaintiff and the farm in respect of the animals. Hence the meaning to be attached to the word "custody" .

The Shorter Oxford English Dictionary (3rd Edition) gives first meaning of the word custody as "safe keeping, protection; charge, care guardianship".

The Commissioner's letter advised the O. C to admit the animals and keep them separate. The plaintiff was to pay for any treatment. Apparently he would not cnd\*-.../5 ill fact was not charged a fee for keeping the animals.

- 5 -

In answers during cross-examination, the plaintiff stated "I applied to take animals to the farm because bandits were stealing animals at that time. This is what I mean by unrest (in my area)". Later he said "The animals were actually to be kept for 2 months. Thereafter I would have 'transferred the animals to a farm of a friend, I was arrested at Kakyesasa Farm whore I had gone to see my animals". This was on 14th January, 198.3, a fortnight after animals had been taken to the farm.

DW1 who managed the farm stated this in his testimony and this testimony was not challenged even in crossexamination

"Plaintiff had a stock man called Mariko. Plaintiff had his son also. Plaintiff's cattle wore, kept separately, Plaintiff and Mariko thus looked after the animals. He used to come, inspect animals, get milk and leave Mariko to look after the animals. ........ plaintiff was arrested when he was milking his cows" . By stockman is meant herdsman.

On these facts my considered view is that the farm provided just a shelter to the plaintiff's animals without the obligation to ensure their safe custody. The plaintiff was a licensee. On the facts of this case I have no doubt that the plaintiff was in effective charge and control of his animals. My study of the bailment cases tf Chatrisha & Co., Ltd Vs. Puranchand & sons /T9527 746, at pages 750 to 753; Rwenzori Coffee Co. Vs. Said /T9707⁴ EA 642 pnd Dodd Vs. Handha Zig7j7 EA 58, support my view that in this case the plaintiff did not part with legal custody of his animals. Exh. P. ¹ implies this. So does Exh. P.2 a letter from Rwamuhanda dated 14th February, 1983 which in part states "Mr. I-utesasi^i was allowed to keep twenty eight heads\*of cattle on the Station".

.... /6

Therefore my answer to the first issue is that whereas the defendant allowed the plaintiff to keep his cattle on the faro, the defendant did not agree to take custody of the plaintiff1s cattle.

L'r. lutakome submitted that conduct of defendant's employees in delaying release of the remainder of the animals irmorts liability to the defendant by which I presume Learned Counsel implies that custody could be . inferred. I don't accept this. It would have been possible if custody here referred to those remaining animals and those animals had actually got missing after plaintiff had demanded for them,. This is because after the theft and after the plaintiff made reports to various authorities, defendant's employees then took charge of the animals for fear of consequences. That is what the testimony of DW1 shows. In fact LW1' s evidence shows that release of the remaining animals was delayed because of reports of plaintiff.

2nd Issues IV findings on the first issue also disposes of the second issue. I hold that when the plaintiff's cattle got lost they were not in the defendant's custody.

3rd Issue^s There is evidence that there was sone activity of insurgence in the plaintiff's village arid around the farm at the time animals were taken.

The>plaintiff took the animals to the farm because bandits were stealing animals. He was suspected, wrongly or rightly, to be aiding bandits and was arrested' on 14th January, 1983. According to what BW1 said employees on *rS* the farm were scared after the arrest of the plaintiff. LV/1 learnt that the animals were taken by UPC Youth Wingers and Special Force men. According to the plaintiff himself he learnt from his herdsman (now dead) and the fam Manager that the animals were taken by some Askaris. By Askaris he presumably meant Special Force or Army\* These wore neither employees on the farm nor were they taking the animals../?

on behalf of the farm Manager or other employees. According to para 4 of the plaint the claim is based on alleged default of employees of the defendant on "the farm" (and not because of the theft by Askaris whoever they were).

In his submissions, Mr. Lutakome blamed the defendant because there was no police or other security personnel to guard the plaintiff's animals. That the defendant failed in its duty to safeguard the farm and the animals. Ms\*.- Arach submitted that animals were looted by either Special Porc-c oz' Youthwingers mid submitted in effect that defendant's servants were not responsible for the loss of the animals. In my view defendant was not bailee for reward nor in my view did defendant undertake to provide security for safety of plaintiff's animals.

Actually my findings on first and second issue would have disposed of the third issue in as much as none of the servants of the defendant was in-charge-of the animals. There is no evidence to show that the defendant's servants on the farm. were responsible for the less. If any youthwinger who may have worked on the farm participated in robbing the animals such youtli winger acted as a political activist outside -the scope of his employment.

I answer the third issue in the negative.

4th Issue?. Mr. Lutakome included submissions on this issue when he made submissions on 2nd and 3rd issues.; . He maintained that defendant was negligent in that it failed to provide police to the farm before the stealing of the anima^l He also submitted that unsatisfactory explanation of loss of animals was evidence of foul play end (presumably negligence),

Ms. Arach submitted that there was no negligence on part of defendant. She submitted that for the plaintiff to succeed he had to show that defendant had duty to keep animals del owed him that duty,- that defendant breached that duty and as a result

caused .loss of the animals. /8

I indicated earlier the plaintilf would succeed in tais case if he established that the defendant was a bailee to the plaintiff.

The plaintiff would then prove the elements submitted upon by Ms.. Arach. See also the throe cases I have earlier quoted in this judgment.

In ny considered view there is no evidence of bailment here. There was no duty either under bailment or of any other di scription owed by the defendant to the plaintiff in relation to the presence of the animals before they were stolen. EVen the treatment of the animals on the farm does not import any clement of bailment. Nor does it confer any other cause of liability upon the defendant. According to BV.1 the animals had tn be dipped and -treated to avoid possible spread of disease to the farm, and that is one reason why they had to be kept apart. Servants of defendant had no way of preventing robbery of the animals by unauthorised third parties.

On the facts and the law I hold that defendant's servants were not negligent. That answers fourth issue.

Flowing from the findings I have made above it is obvious that tiie plaintiff suffered damages when his animals were robbed but the defendant is not liable to the plaintiff for such suffering or da-agos consequently caused.

Therefore my answer to issue number 5 is that the plaintiff did not suffer damages in so far as the defendant is concerned.

I don't consider it necessary in this case to.assess damages which I would have awarded if the plaintiff succeeded because of possibility of Appeal.

For the reasons I have already given I find that the plaintiff has failed to prove his claim. I dismiss the suit. I award cests of the suit to the defendant.

$-9-$

J. W. N. TSEKOOKO,<br>J. W. N. TSEKOOKO,<br>JUDGE $26/10/1993.$

$1/11/1993$ at 9.00 a.m.:

Plaintiff present. Lutakone for plaintiff. Ssensonga - Court Clerk. Judgment delivered.

Switzing.

J. W. N. TSEKOC O,

JUDGE $1/11/1993.$

$\ast$ .