[2015] UGCA 2035

## THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

# CIVIL APPEAL No.51 OF 2oL4

(Arising out of High Court Misc. Cause No. 15 ot 2013) (A peal from the decision of Hon. Justice Wilson Masalu Musene dated 6th February 2014)

he ommissioner Customs

ga da Revenue Authority Appellant

#### Versus

ire 61 P75/.... Respondent

or m:

Hon. Mr. Justice Eldad Mwangusya JA

Hon, Lady Justice Faith E. K. Mwondha JA

Hon. Mr. Justice Richard Buteera JA

### MENT OF TH

#### round:

he respondent filed a notice of motion Misc, Cause No.15 of 2013 under le 26 and 50 of the Constitution, Rule 3 and 6 of the Fundamental rti

PaBe 1 of 20

ry>= \$

BR-

ts NS ^h and Freedoms (Enforcement Procedures), Rules SI No.26 of t992 the appellant who was respondent then. t

wa\$ seeking for the following orders:

- 1) A declaration that the Respondent's refusal to release the Applicant's 1Q0 drums of ethanol as ordered by the Chief Magistrate Court cqntravened the Applicant's right to property. - 2) An order compelling the respondent to release the Applicant's ¹⁶⁰ dfums of Ethanol. - 3)An order for general damages. - )An order for exemplary damages. - s)s -rch other remedies the Court shall find appropriate. - 6) Costs of the applicatlon.

pplication was supported by the affidavit contalning the grounds 0d by the applicant Kirenga Fred, a pon

re lica spondent (Appellant now) tion deponed by Klgwawo filed an affidavit in reply opposing the Kitaka Farouk and the applicant filed ^a oinder.

application was heard interparty. It was decided licant and the orders sought were granted. in favour of the

AS pOainst that decision that the appellant appealed to this Court. It

pppellant's memorandum of appeal, there were 5 grounds as follows: the

1)The learned judge erred in law and fact to award the respondent compensatory damages of Uganda shs,230,983,291/- for the alleged loss of 160 drums of ethanol when the appellant had complied with the

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+,( tE- Court order and compensated the respondent with Uganda shs.26,054,706/- the declared value of the said goods.

- ) The learned trial judge erred in law and fact in awarding the respondent general damages of Uganda shs.80,000,000/= - )r e learned trial judge erred in law in awarding the respondent exemplary damages of shs. 150,000,000/ h - )The learned trial judge erred in law and fact when he held that; Misc. Cause No.75 of 2O73 was not res judicata when the same facts had been adjudicated and decided in favour of the applicant vide Criminal Appeal No.39 of 2077 the Commissioner Customs Uganda Revenue Authoriy vs. Fred Kirenga. - 5)The learned trial judge erred in law and fact when he held that; the proper party to be sued in Misc. Cause No.75, Kirenga Fred vs. the Commissioner Customs Uganda Revenue Authority, was the respondent and not the Attorney General,

e aflpellant proposed that:

1) !he appeal is allowed

2) lhe orders of the High Court awarding the respondent compensatory \$amages of shs.230,983,29t/- for the alleged loss of 160 drums of dthanol, general damages of Uganda shs.80,000,OOO/= and exemplary damages of shs.150,000,000/= be set aside.

## esentation:

he appllcant was represented by Mr. Okello George and the appellant's sentative was present at the hearing of this appeal. p re

Page 3 of 20


DaVid Kagwa was for the respondent.

nsel for the appellant informed court that he was abandoning grounds 4 5 he also told court that he was retaining grounds 1-3.

ore proceeding, counsel for the appellant informed court that they have eed with counsel for the respondent to stay execution of the decree in High Court till determination of the appeal. Counsel for the respondent firmed and said that the order for stay of execution and enforcement of n orders of the High Court in Misc. Cause No.75 of 2O73 be stayed ding disposal of this appeal. The Court entered the consent and granted stay of execution as consented. Costs were to abide by the outcome of appeaL

unsel for the appellant submitted on grounds two and three together and und one was submitted on last. However, for purposes of being orderly, shall handle the appeal starting from the submissions in ground one.

SU mitted on ground one that after the respondent had been acquitted Criminal charges by the Chief Magistrate Nakawa with the order that the 0 drums be released to him as per pages B-10 of the record of ceedings, the 160 drums had been disposed of by way of sale. That, in -Ol,un." with that order, part of the proceeds was banked on the spofrdent's Eco Bank Account. b

e amount deposited was based on the invoice value raised by the spondent for clearance which invoice was found among the documents at had been intercepted by the appellant as per page 131 of the record of rocJedings of the Lower Court. There was a document with prints "a eclaration to the Custom Box 2273". The document showed the

PaBe 4 of ²⁰ €?- -1\ w

unt in Kenya shillings and the invoice price which was in Uganda drums of ethanol were proceedings because of .26, 384,524/-. He submitted that the ¹⁶⁰ osed of before the completion of the criminal goods being perishable in nature. He said that, that was the basis of g Misc. Cause No.15 of 2013 by the respondent.

deposits of the proceeds according to the affidavit of the appellant osihg Misc. Cause No.15 of 2013 in paragraph 11 stated that part of the ceeds were banked on the respondent's Bank Account in Eco Bank. The anol had been sold at Uganda shs.110, 000,000/- as per paragraph 10 the record of proceedings.

submitted that the sale was done in accordance with S.214 (2) of the st African Community Act as the law permits the appellant to dispose of proceeds when the goods are of a perishable nature... and the proceeds the sale have to be retained and dealt with as if they were the seized ods. He argued that ethanol is a perishable substance and the disposal s conceded to by the respondent. He submitted that if ethanol is exposed d/or delayed, it loses value. t

funther submitted that even counsel for the respondent alluded to the that ethanol loses quality as time goes by and that, the spirit had been ized almost a year back he referred to page t23 of the lower Court oceedings.

ar\$ued that the trial judge made a finding outside the evidence when he und that the respondent's right to property was violated at page 270 of e rebord of proceedings.


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^a ard of shs230, 983,291/- as compensatory damages were not yed for, so the learned judge failed to apply the correct principle. He ed n the case of British American Tobacco (U) Ltd vs. Shedrack kubi and others SC Civil Appeal No.7 of 2O72(SC).

gr unds two and three, he submitted that they challenged the award of 000 CE BO an Lln , OOO/ - for general damages with the law as provided in because the seizure 5.274 of the East WAS IN African mm ty Act ord

fufther submitted that when the money was deposited on the pondent's account there was no protesL.

e award has to be made on evidence with valid justification. He relied on case of Uganda Revenue Authority vs. Wanume David Kitamirike urt of Appeal Civil Appeal No.43 of 2O7O particularly the lead gment of His Lordship Kasule lA which expounded on the principles of ard of damages. It emphasized that there has to be due assessment ich was not there in the instant case before an award can be made.

said prosecution is allowed under the Constitution where someone is spected to have commltted a crime so prosecution cannot be valid sessment. He added also that the amount was excessive. He argued that e award was discretionary but the discretion can be interfered with if ere was a wrong principle followed or misdirection.

referred to the case of Banko Arabo Esapnol vs. Bank of Uganda preme Court Civil Appeal No.8 of 7998, where it was held among hersI as follows: "...there must be shown to be an unjudicial exercise I discretion or an exercise of discretion at which no judge thr

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+x 'le, tsz

# could reasonably arrive whereby injustice has been done to the party complaining (Shah vs. Allu (1947) 14 EACA 45"

He further submitted that there was self assessment as the taxing procedure is, so there was no oppression or unconstitutionality. He referred to the authority of **Uganda Revenue Authority vs. Wanume David Kitamirike again Supra** where the Court of Appeal held that "punitive or exemplary damages are an exception to the rule that damages generally are to compensate the injured person. These are awardable to punish, deter, express outrage of Court at the defendant egregious, highhanded, malicious, vindictive, oppressive and or malicious conduct. They are also awarded for the improper interference by the public officials with the rights of ordinary subjects"

He argued that paying less the amount sold as proceeds is not un**constitutional**. There was under declaration of the goods value.

Counsel for the respondent opposed the appeal and he adopted the manner in which counsel for appellant submitted. He submitted that the appellant was not denying that; the Constitutional right of the respondent was violated as the memorandum of appeal shows. That his main problem was the quantum awarded.

He said this was an action brought under Article 50 (1) of the Constitution which provided that any person who claims that a fundamental or other right or freedom guaranteed under the constitution had been infringed or threatened is entitled to apply to a competent Court for redress which may indude compensation.

Page 7 of 20 H c a c s SU mitted referring to the Ruling of the Chief Magistrate at page ⁹ ere he stated "in my view, it would appear that this container was a in absence of contrary evidence one would understand that alities including taxes had been finished since there is ^a b fo sto s officer at the gate who clears the goods. Therefore I do not e how this witness connects either of the accused to any of the unts"

t H h b h SU ldt mitted further that during prosecution the learned Chief Magistrate at the taxes had been paid and the judgment was not challenged so y'd d not have even the right to deduct taxes.

H C t al supmitted that, the appellant did not go to a competent Court to lenge the finding and if they did not do so, they would not have taken ^a in their hands by deducting the taxes.

I r b H submitted that the case commenced In August 2009 when the goods re eized by the appellant and up to date the respondent has not OV red anything. The respondent has not been paid full value of the ods and neither have they been returned. The learned judge said that the pond en h t had ^s ^oⁿ ^e t^h r^o ^U ^s ^h ^h ^U ^st ^e ^a ⁿ ^d ^b ^U ^St ^E ⁿ ^att^e ^m ^pt ⁿ^s t^o ha ^e ^C k ^S s ood ^S

C H v C C b urt cited the case of Housing Finance Bank and Speedway Auctioneers rsuF Edward Musisi Misc. Application No.758 of 2O7O where this urt ave guidance that it is the responsibility and the duty of the party nce ned that in case for some genuine reason the compliance of the order is not possible, to appropriately move the Court in order to ng to the attention of the Court the reasons for non compliance ...sic)

R''.- >-'1-- Page 8 of ²⁰ \* J9

He AW pra ed that, this Court finds the award of shs. B0m as general damages rded based on correct principle.

He Cu ha co at suL tom dle< imitted that according to s.214 of the East African Community ts Management Act, the appellant was highhanded the way he J the affairs of the respondent so the judge was justified. He also ten ed that the award of shs.150m as exemplary damages was arrived srn correct principles. He relied on the authority of Fredrick Zaabwe

## o nt Bank SCCA No.4 of 2006.

U H (3 fur her submitted that there was contravention of a Court order. 5.214 of he East African Commqnity provides for detaining the things seized il p secution and dealt wlth in accordance wlth S.215 of the said Act.

H th b th als referred to S.215 which among others provides for an order either thing is released to the person it was seized from or to the owner appellant had no right to sell them among others. t the

M lo tn th E T o ello for the appellant made a short reply and submitted that the ntion of the respondent declaring a lesser value was intended to profit respondent in that he would pay less tax, He said that, taxes under the stA,frican Community Customs Management Act and the Value Added t, is based on Cost Insurance Flight value, so the lower the value, the er the tax. That, that was a conduct of dishonesty. Ac

pl H ill arg galil adir lued that it was illegal to have an under declaration and where an [y is brought to the attention of the Court, it overrides any kind of rg including admissions.

H re ied on the case of Makula International vs. His Eminence al Wamala Nsubuga (1982) HCB page 77. He argued that the rdi

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19W

laratlon of Malua investments binds the consignee under s.106 and 107 he East African Community Customs Management Act. The Act of agent ds the principle. of

arg ^U ed that the case of Fredrick Zaabwe vs. Orient Bank Supra was tinguishable from the facts of the instant case. In the lnstant case there o f/aud imputed on the appellant whereas in the Zaabwe case there was ud. Everything which was done by the appellant was within the law. is

also further submitted that the trial judge erroneously awarded interest ich had not been prayed for. That Court cannot exercise its discretion ere it has not been moved by a party.

prayed that this Court subjects the evidence to fresh scrutiny in exercise the duty of the first appellate Court and allow the appeal and the prayers embodied in the memorandum of appeal.

## f rounds of A eal:

is is the first appellate Court and rule 30(1) of this Court Rules gives the andate to it to reappraise the evidence and draw inferences of fact. Also it tri e law that the duty of the first appellate Court is to reconsider the nti evidence on record and subject it to a fresh and exhaustive scrutiny ake its own conclusion among others. See Kifamunte Henry v. ga da SCCA 7O of 7997 and Pandya vs. R (7957) EA 336. t nd n

ad the opportunlty to peruse the Lower Court record and read the udgment thereto. e h

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On the first ground to the effect that the learned judge erred in law and fact to award the respondent compensatory damages of Uganda shs.230, 983, $29!/$ for the alleged loss of 160 drums of ethanol when the appellant had properly complied with a Court order and compensated the respondent with Uganda shs.26,054,706/= declared value of the said goods.

The facts were relayed in the Ruling of the Lower Court as follows: the applicant (now respondent) was charged with several Counts of interfering with the goods to wit: neutral portable ethanol that had been seized by Uganda Revenue Authority Commissioner in charge of Customs and fraudulent evasion of tax contrary to section 203 (e) and (f) of the East African Community Customs Management Act in the Chief Magistrate's Court of Nakawa. On the 13^th day of June 2011, the Court dismissed the Criminal charges. The court also ordered the release of the 160 drums of ethanol the respondent had seized from the applicant. The applicant (respondent) filed Misc. Application No.423 of 2011 following his acquittal as a result of the appellant refusing to release the goods in issue.

The learned Magistrate entertained the application in which he declared the Commissioner Customs Uganda Revenue Authority a Contemnor (According to the Legal Dictionary/Encyclopedia; it means a person who is found to be in contempt of Court) and ordered the Commissioner to pay a sum of Shs.1, 000,000/= (one million) daily until the order is complied with.

The appellant appealed successfully against the orders of the Chief Magistrate. After that an application under Article 26 and 50 of the Constitution was filed in the High Court.

We carefully listened to both counsel in their submissions, we also carefully perused the record and the exhibits thereon. It was clear to us that, the

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ert e Chief Magistrate made to the effect that the 160 drums of ethanol zed rom the accused immediately be returned to him was duly complied h

EV dence on record shows that the respondent made a self assessment his agent and under declared the value of his goods by putting the value shs.26,054,7061- for the 160 drums of ethanol, In accordance with 74(2) of the EACCMA, ethanol being a hlghly perishable substance if it is t without using it....after seizure loses value, the appellant sold it off rh proceeds were retained and dealt with as if they were the seized ds.

160 drums were sold at shs.110, 000,000/= much above the value the ^p^o ⁿ^d ^ent ^h^a ^d ^State^d ⁿ t^h ^e ^d ^e^c ^a ^r^a t ^o ⁿ T^h ^e reSpoⁿ ^deⁿ t ^d ^d ⁿ ^o ^d env f t ⁿ ^g ^U ⁿ ^d ^e r ^d c^C ^a re^d t^h ^e ^a ^U c ^b ^U t r^a th^e r ^a ^U ^d ed t^o t^h ^e ^a ^ct t^h^a t t ^a ^S ht ere td pon agent. We accept appellant's counsel submission that the acts of the nt binds the principle and that the VAT Act is based on Cost Insurance and by lowering the declared value, the tax also was going to be d and the Uganda Revenue Authority would be denied of that tax. It not have been correct as the Chief Magistrate found that the dent must have paid the tax, which finding the learned judge ieved

ti submission of counsel for the respondent to the effect that under on 215 of the EACCMA, the seized matter had to be released to the ner has no basis because this would be so in as far as the goods are not a perishable nature. That provision comes after 5.214 (2) and both isigns have to be read together so that the intention becomes clear. goods were sold at a higher price than the declared value, the appellant

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was not justified in retaining the shs.26,054,706/ $=$ which was banked on the respondent's Bank Account less the taxes which had been paid due to the respondent's interference with the goods. The question would remain what happened to the balance and how much tax was assessed.

The fact that the Chief Magistrate acquitted the respondent of Criminal charges did not in any way mean that he did not under declare and he paid the due taxes. The burden of proof in a criminal trial is higher.

There was no justification whatsoever for the learned judge to award the exprbitant compensatory damages to the tune of shs.230, 983, 291/=. The prosecution was conducted and there is no way the ethanol could have been kept from August 2009 to the time judgment was delivered. Section 214 (2) of the EACCMA was enacted to cater for such eventualities. The actions of the appellant were in accordance with the law and were correctly exercised.

The learned judge in his judgment said "I have carefully read S.216 of Act No.1 of 2005 East African Community Customs Management Act $214$ , I do not find any provisions therein which gives the respondent express powers to sell the property seized by it without notice and the procedures detailed therein with due respect to **counsel** for the respondent..." This provision is general compared to S. $\frac{1}{2}$ 14 (3) which is specific to perishable goods.

S.214 (2) of the Act says it all; the catch word is "any goods which are of a perishable nature once the owner is aware of the seizure that suffices as it would defeat the whole purpose of that provision". As to who determines "*perishable*", the appellant has the duty to do it. That

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is the Law as it is now. There was no evidence in the respondent's application to the effect that he had no notice of seizure.

There was evidence of under declaration which was not challenged and or controverted. The declaration was by **Malisu Appollo Investments Ltd P. O** Box 86 Kiboko, the Company agent of the respondent. To clearly see the dishonesty of the respondent, the agent was said to be of unknown Principal. How can that be?

In his Ruling the learned judge went on to say "there was in my view no excuse for disobeying the Chief Magistrate's order for the release of the applicant's ethanol. The Chief Magistrate's order in Criminal Case No.844 of 2009 acquitted the respondent with an order that his goods be released to him. A court order is a court order and whosoever disobeys it with impunity does so at his own peril..." With respect to the learned judge the appellant had made out his case. The appellant had acted under S.214 (2) of the EACCMA and the goods were sold as they were of perishable nature. Secondly there was the issue of under declaration to evade tax which was an illegality and certainly, there was no evidence by the respondent that he had paid the tax. The question of disobeying a court order with impunity did not arise.

There are celebrated decided cases that a Court cannot sanction what is illegal Makula vs. His Eminence Cardinal Wamala Nsubuga (Supra). The hustle and bustle the learned judge referred to was an attempt by the respondent to have back his goods or the equivalent proceeds of sale for purposes of perpetuating an illegal act of which this Court can't be a party.

It was apparent that compensatory damages were not pleaded so the judge had no reason to award them. This ground succeeds.

Page 14 of 20 'the second ground to the effect that the trial judge erred in law and fact awarding the respondent general damages of shs. B0, 000, 000/-.

accept counsel for the appellant submissions on this ground. General mages according to Lord Macnaghten in the case of Storms vs, tchinson (1905) AC 575 are suctr as the law will presume to be as ct l]atural or probable consequences of the act complained of.

s settled that damages in their fundamental character are compensatory not punishment. The trial judge stated in his Ruling that "it was not in ute that the applicant has gone through hustle and bustle in mpting to get back his goods. That his goods were seized and sefiuently sold and so he said there was a proper case to award eral damages." The hustle and bustle referred to by the learned ge, was not elaborated upon for us to understand them. It

ave already stated annexure "B" on the record of appeal was clear at there was an under declaration of goods when the respondent's eclared the value of shs26, 054,706/=. The principles of natural tice dictate that one cannot benefit from his own wrong. WC US h th nt d to

dence particularly in the Lower Court record that the taxes were not accept the submission by counsel for the appellant that the of Fredrick Zaabwe vs. Orient Bank SC Supra is inguishable from the facts of this case so cannot be applicable, In that e, the respondents were guilty of fraud whereas in this instant case the ellant was merely complying with the law. Ground two succeeds also. CV e horit, are unable to allow the respondent beneflt from his own wrong. There

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Pagc L5 of 20

t e n hd 3'd ground to the effect that the trial judge erred in law and fact he XE f ^a ^a ^r^d ed ^eXe^m ^p ^a ^r^Y ^d ^a ^m ^a I ^e ^S ^of ^S ^h ^S ¹ ⁵ ⁰ ⁰⁰⁰ ⁰ ⁰ ⁰ t ^S t^r t^e ^a t ^o m ^p ^a rY ^d ^a m^a ^g ^e^S ^a ^T^e ^p ^U ⁿ t ^e ⁿ ⁿ ^at ^U f ^e T^h ^e^Y re^p re^S ^ent ^a ^S ^u m o ney pe eo of a penal nature in addition to the compensatory damages given for cuniary or physical and mental suffering, It was considered in the I Rookes vs. Bernard (7964) ALL. E. R. 367 at 47O, 477. Lord vlln stated that in his view, there are only three categories of cases in ich exemplary damages are awarded namely:

- ) Where there has been oppressive, arbitrary or unconstitutional action by the servants of the government. - 1 \Wnere the defendant's conduct has been calcutated by him to make a profit which may well exceed the compensation payable to the plaintiff. - Where some law for the time being in force authorizes the award of exemplary damages.

re sid ^a re also three things that Rookes case pointed out which should be red when the award of exemplary damages is being made and uld be brought on record as hereunder: e

- the plaintiff cannot recover exemplary damages when he or she rs the victim of punishable behavior. - the power of award of exemplary damages should be used with restraint. - the means of the parties are material in the assessment of exemplary damages. )

as eld in the case of Kiwanuka vs. Attorney General, Visran and vs. Bhatt (7965) EA 789 by the Court of Appeal Eastern Africa Page 16 of 20 sa It


t te NC e dicta of House of Lords in Rookes vs. Bernard above accurately the law of East Africa with respect to exemplary damages. The e in Rookes vs. Bernard was also endorsed by Spry VP of the East CA Court of Appeal in the off-cited case of Obonyo and Another vs. nicipal council of Kisumu (1971) EA 97, Also in Uganda the following es Ongom and another vs. Attorney General 7979 HCB 267, NW ^mbadde vs. Mpigi District Administration (7983) HCB 44, dribk Zaabwe vs. Orient Bank and others, Supreme Court Civil peal No.4 of 2OO6, (Unreported). rh d p

WAS stated among others "...by way of emphasis however, I shall ary ish the defendant and deter him from repeating the conduct. It y ponsidered view that, in an action where an outrage has been mltted against the plaintiff by the defendant and the Court s an opinion that it should give punitive damages to register its approval of the wanton and willful disregard of the law, it is rely proper to award exemplary damages in addition to general special damages if any." ( See Principles Governing the award danlages in Civil cases, A paper presented by Hon. Mr. Tustice M. Katureebe JSC at a course newly appointed judges of the urt of ltganda on 78th June 2OO8.) hc^o I It here the rationale behind the award of exemplary damages: damages should not be used to enrich the plaintiff but to ,s

carefully read the evidence on record but r^;e are unable to find anything chs ows that the appellant acted contrar-y to the law and was therefore ressive or unconstitutional. We considered the issue of assessment of h he appellant. It is apparent that there was taxation but there is no t by

Page 17 of 20


$\mathcal{L}_{\text{max}}$ $\overline{\mathbf{z}}$ mention of how much it was and how it was arrived at. It was also evident that assessment was based on the declared value of the tune of shs.26, 0\$4,706 which was later deposited on the respondent's Bank Account. It was not in dispute that the goods being perishable were sold at market value at shs.110, 000,000/=. The non mention of how the tax was determined is a procedural omission which can be cured and cannot amount to oppressiveness, unconstitutional or arbitrary. In any case section 122 of the Act is very clear; the importer (respondent) on request is entitled to an explanation. The respondent instead of requesting for an explanation, he just went to Court prematurely.

The East African Community Customs and Management Act 2005 s.148 makes the owner of the goods liable for the acts and declaration of his agent. And s.133 (1) provides "where any obligation has been incurred whether by bond or otherwise for the payment of any duty then such obligation shall be deemed to be an obligation to pay all duties which are or may become payable or reasonable under the provisions of this Act."

S.122 (1) provides: "where imported goods are liable to import duty ad valorem, then the value of such goods shall be determined in accordance with the fourth schedule and import duty shall be paid on that value"

Upon written request, the importer shall be entitled to an $(2)$ explanation in writing from the proper officer as to how the Customs value of the importer's goods was determined among others.

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are of the view that the appellant while assessing and/or computing the tylcustoms due in compliance with the law and transparency ought to ve shown how much was computed in accordance with the fourth hedule basing on the market value of shs.110,000,000/=. There was no idence from the record that this was done. The appellant cannot be Ited though, because the law as stated above entitles the importer by itten request for an explanation as to how the customs value of the goods s determined. See s.122 (2) of the EACCMA Supra.

th e of at the principles to be considered before award of exemplary damages they should not be awarded to enrich the plaintiff. The respondent under declaring, he was involved in a punishable behavior and the trial ge awarding exemplary damages, he was sanctioning enriching the poddent unjustifiably. The mere fact that he was acquitted did not take ay the under declaration as proved from the sale of the seized goods. is Court cannot close its eyes to that illegality.

was no conduct of the appellant's servants which showed that it was ated to make profit therefore. It is clear to us that the learned Judge to follow the right principles in awarding the exemplary damages. found succeeds too. ere lcul led tsg

fore we take leave of this judgmcrt, v,c observe that the trial judge arded interest at Court rate on gcncral .larnages of shs. B0, 000,000/ d exemplary damages from the date of judgment to payment in full.

e award was clearly influenced by'"lr: lc rr-ncC judge's erroneous finding t the appellant had failed to imi-rl1,r"r, the Chief Magistrate's order ereas not. Our finding is that the orcl,:rs had been implemented in ordance with the law. Besides, S.2'', of l:he Civil Procedure Act is clear.

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Suffice it to say that interest was never pleaded or prayed for by the respondent. The interest award is accordingly set aside.

The appeal succeeds except for the amount the respondent is entitled to after sell and tax assessment or computation.

Judgment is entered in the following terms:

1) It is ordered that the tax assessment or computation be made basing on the market value of shs.110,000,000/ $=$ and in accordance with s.122 of the EACCM Act 2005 taking into account the fact that $shs.26,054,706/=$ had been banked on the respondent's Bank Account.

2) Costs of this Court and the Court below be awarded to the appellant.

Dated at Kampala this $0.03$ day of $0.03$ comber 2015 John Gump Hdn. Mr. Justice Eldad Mwangusya JA Thuandlec Hon. Lady Justice Faith E. K. Mwondha JA Karphitio Hon. Mr. Justice Richard Buteera JA $03.09.15$ George Oriento for Apportant Apperlant abst<br>Dand Kagqwa for Respondent Reppondent par Mr Overly it for findquant & Page 20 of 20 We are ready to receive it Indquent delivered $C\theta$ $\mathbb{R}$ $\mathbb{A}$ $\mathbb{A}$ $\mathbb{A}$