[1995] UGHC 70

### THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

#### CIVIL SUIT NO" 699 OF 1993

STEPHENS N.- MABOSI:::::: i::::::::::::::::::: s:::PLAINTIFF

# = V E R S U. S =

UGANDA REVENUE AUTHORITY:DEFENDANT •BEFORE: THE HONOURABLE MR! JUSTICE I. MUKANZA.

J U D G M E N T:-

The plaintiff in this case filed an action against the defendant for special damages when the defendants servants and or agents removed goods from his premises.

According to the plaint the plaintiff's claim against the defendant was 'for the sum of Uganda Shillings 22-703.000/= with interest thereon being the value of goods/lubricant taken into possession misappropriated by its servants and or agents. The service station was known as UPET•

The facts of this case were simply that the plaintiff ran *a* small business in petroleum product motor vehicle accessories and insecticides at 16th Market Street in Kampala.

'On 17th November in the absence of the plaintiff one Okello a servant and or agent of the defendant with others unknown to the plaintiff also servants and agents of the defendant did go to the plaintiff's premises and removed and took away into possession goods lubricant of the plaintiff. The goods were taken on the grounds that they were uncustomed. The plaintiff was informed that the goods would • ■■ i only be released upon payment of sum of shillings 3\*739»3^9 as taxes and 1.238.765 as fines.

The facts further show that after the payment of the alleged taxes and fines some goods were subsequently released to the plaintiff from . the defendants authorised warehouse with Transocean Uganda Limited but with shortage of the bulk of them as evidenced by the delivery note.

The plaintiff made several demands for the return of the misappropriated goods from the defendant but without success.

in its written statement of defence the defendant denied the claim preferred a^inst it. The defendant averred that whatever goods and or lubricants which were taken into possession and custody of the defendant by his servants and or agents were duly returned to the plaintiff after the disposal of the case.

in the Alternative the defendant would require the plaintiff to prove the existence of the goods claimed which were in excess of what was returned to the plaintiff. The defendant would aver that its servants or agents took possession 500# litres tins of # litre jerrican oil and not 500# litre cartons as alleged averred that the seizure notice B No. 2807 of 24.11.92 stating 500 litres cartons issued to the plaintiff was issued in error and the said notice should have read 500# tins.

At the commencement- of the hearing of this case the following issues were framed and agreed upon by the parties:

- fi) what quantity of goods of the plaintiff was seized by the plaintiff. - (ii) whather all the goods of the p.laintiff seized were duly returned to the plaintiff after due payment of taxes.

(iii) what remedies if any are available to the plaintiff.

# ON ISSUE NO. 1:

According to pw1 and PW2. DW1 and others servants of the defendant company stormed their petrol stations on the ground that they had in their possession uncustomed petroleum products in engine oil and lubricants. The plaintiff was told to produce documents to prove that they had paid taxes on the same. pw1 was told to look for those men who had sold him the various engine oils. DV/1 and others went away but 2 days after DV/1 and his men came and raided the petrol station of its stock when PW1 was away. Ptf2 pleaded with them either to call the police or PCs of the area but the request was turned do-?n. pw2 was instructed to tell her husband to report to Nakawa the headquarters of the defendant company. According to Pv/1 all the stock was removed and taken away. And some documents connected with the said stock, was also taken away.

According to PW1 the only'document to^ahcr the quantity of go ?>1x3 oil engines taken away was seizure notice EX?1 issued to the plaintiff by ..... , . . . .. ; .. ' • Okello DV/i a servant to the defendant. The seizure note EXP1 showed the quantities of oils removed from the UPET petrol station as 571 litre r ..... •• •' • •<' ^t - ' ' ' jerrican lubricant and 500 boxes # litre engine oilj 11 tins.of grease

and 2 sacks /a litre engine.

DV/1 on the other hand explained how they raided the stores and petrol station and removed goods which they suspected were uncustomed goods and demanded proof of payment of taxes on the same from the plaintiff PW1« The-evidence further showed that they loaded 571 five litre jerricans 2 sacks of hal'f litre tins of engine oil, 11 tins of grease and cthere was approximately 500 cisterns of half litre tins. The testimony of DW1 farther Went to' show that he realised later on that they had made a mistake -there' was no such '500 half litre boxes but tins. Mr. Nangwala submitting on issue No.1 was of the strong view that the evidence by DW1 and DW2 that that there was a mistake when . DW-1 issued the seizure notice EXP P1 be're jected. and referred, me to section 90 of the-'evidence Act cap 45 meaning the proof of the document is the document itself. The lax? prohibits other evidence.to prove the>document other than the document itself. EXP1 by itself proves the do.cument.- • 7''

While submitting on this issue Mr.^v Byamugisha counsel appearing for the defendant submitted, that according to S.100 Evidence Act the quantity of good seized lies on the. plaintiff which says "Burden of proof". The plaintiff must prove the. quantity of goods that were in stock. That he purchased or lawfully, acquired the alleged goods and'that he had them at the premises on. the,, date-in issue .;>■ That the books where PI71 ' took the inventory of the goods were taken by the/.servants¹ of'the defendant. " That the court should ignore the existence o.f such book.' They-were not there when the goods were taken away even DV/4 denied the existence. The plaintiff says he had 500 boxes because the defendant (DV/1) says so. The defendant says there was a mistake on the seizure note. Mistake on document can be proved by oral evidence what is here is not the quantityof good \* oral evidence could be adduced to prove the quantity \* The defendant proved to court that he never found the boxes of oil \* EXD 2 on which DW1 calculated the volume of spaces to contain 500 boxes and described the premises that it was impossible to have such quantities stored in the premises. And that the'goods were carried away on a tata lorry and that was supported by EXP 2 and 9\*

C> 4

According to pw1 and py/2. it was the defendants servant who did the counting of the goods, PW2<s..effort, to take the inventory of the goods impounded was rejected and according to. the evidence available even some documents the stock book was taken away \* . I seem to agree with Mr\* Nangwala'that the only evidence which will supply the answer to this issue is. the official record prepared by pwl the impounding officer delivered to the plaintiff that is the notice of seizure EXP \*! • Mr\* Byamugisha referred me to section 100 of the evidence Act cap which provides: '

> ''who ever desires any court to give judgment as to any legal right or liability dependant on the existence facts which he assetts must prove that those facts . exist, when a person is bound to prove the existence \* of any.fact it is said -that the burden of proof lies on him.¹¹

And .went on to submit that pw1 had the burden to prove the existence of petroleum product that were taken away. ' \*

It is true the burden lay on the plaintiff but where as in this present circumstance where all the stock was removed without giving the plaintiff an opportunity to take inventory of the same and the record which showed the stock was also taken away, it is the opinion of this court that the said burden of proof shifted to the defendant to inform court how much stock, of..the., engine oils were taken away from the plaintiff \* It was i) '■ z argued on behalf of the defendant as per exhibit D9 that the quantity of goods claimed by the complainant as indicated per their seizure not was imcginary and false \* That the lorry could not carry all that much oil to the tune of 13»399 kilograms \* ' But besides EXP 9 there was EXP 8 where some calculations of commodities taken were made, when it came to...the figure of 500. It was first recorded as 500 boxes and this was cancelled

and replaced by 500 bottles. When questioned on this DW1 admitted the mistakes. It must be noted that exhibit P8 is dated 13.12.1994 and was scribed when the hearing of this case was in progress.

From what has transpired above I am agreeable with the submission of Mr. Nangwala that oral evidence could not be adduced to contradict EXP1 as per section 91 of the evidence Act. EXD 8 and EXD 2 were an after thought and I believe the plaintiff story that the goods returned to him was as per seizure note exhibit P1. In the premises the goods seized were 571 5 litre jerrican lubricant and 500 boxes % litre engine oil and 11 tins of grease and two sacks of 1/2 litre engine oil (As per the seizure note exhibit P1. That was a design by Okello and his men calculated to deprived pw1 of some of his engine oils. ON ISSUE NO. 2:

In fact after a lengthy and tedious procedure some goods were released to the plaintiff and this was after he had paid the taxes and fines. The goods he received were entered on delivery note EXP7 and there appeared to be no objection about this from the defence side. In order to comprise this issue the court looked at EXP1 and EXP7 only 94% of half litre boxes/cartons were delivered back as opposed to 500 boxes as shown in exhibit P7 and there appears to be no objection about this from the defence side.

This therefore indicated a shortage of 405% cartons of boxes which is the subject matter of this case. So 405% boxes were in fact misappropriated by the defendants servant Okello DW1 and his group.

I do not therefore subscribe to the submission of Mr. Byamugisha that all goods taken were returned.

#### ON ISSUE NO. $3:$

<span id="page-4-0"></span>About the remedies available. The plaintiff as shown above is entitled to the engine oil not returned to him. That is 405% boxes of litres of oil. He explained that the price of each carton of ½ litre oil

$.../6.$

*is ^9.500/= as* per original invoice, delivery note EXP9 \* PW1 testified that 15% of the said value is officially added for the purpose of profit to make the sale price of Shs. 56.000/= per carton box. The later figure multiplied by 405)4 litre boxes misappropriated brings this figure of 22.708.000/= shillings which is the amount claimed by the plaintiff. The t . V ' \* " • ' ' defendant defaulted in return of the goods for considerable time and the • plaintiff suffered as a result.

*6*

From what has transpired above the plaintiff has proved his claim. on balance of probabilities and I proceed to make the following orders.

The plaintiff is awarded special damages of shillings 22.708.000/= j • being the value of ,405\$. boxes of litre oil engines misappropriated by the defendants servant.

• As regards general damages these were never pleaded and prayed for ..in the plaint. The general rule is that a matter which was not pleaded cannot be raised at the trial and that no evidence should therefore be adduced at the trial to prove the matter. It is fundamentally necessary ^r therefore that pleadings not to be embarassing to the other party should » . state those facts which will put the other party on guard and tell it what is expects to meet when the case comes on for trial See: Noah £ ^a ; — ' Hambowa and others vs. LMB (Lint Marketing Board) H. C. C. S No. 406/90 - - . . . / ward vs Barclary Parkinson (U) Ltd 1959 AER p. 287.

. evidence ? With the referred to '/ in mind though the plaintiff was inconveⁱ '• '\* and '\* nienced^suffered but gets nothing on this item. The learned counsel for the defence did not raise a finger on this item nonetheless I reiterate that no award for general damages is awarded here because even in the . prayer it was not stated that the court would do anything as .it deemed fit. The plaintiff is awarded interest on the decretal sum at the' rate of 40% from 22.2.1993 till payment in full. The plaintiff is

ⁱ ' also awarded costs of this suit. . ;•

I. MUKAN3A *Q* JUDGE 31.1.1995.