THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA
HOLDEN AT MBALE
(FROM TORORO CIVIL SUIT NO. 79 OF 2012)
TORORO CEMENT LTD…………………….……………..…..APPELLANT
BEFORE: THE HON. MR. JUSTICE HENRY I. KAWESA
The appellant brought this appeal against the judgment of the Chief Magistrate Tororo of 13th February 2014 of Civil Suit 0079/2012. He raised five grounds of appeal. He prayed that the lower court judgment be reversed, appeal be allowed, costs of the appeal and in the court below be provided and any other relief.
The respondent replied to the memorandum and denied all the grounds as stated.
This is a first appeal. The duties of a first appellate court are to subject the evidence to a fresh scrutiny and make its own conclusions thereon; taking into considerations all limitations like not being able to see and hear the witness. See PANDYA V. R (1957) EA 336.
I have dully gone through the lower court record and have also perused the attached written submissions. The appellants chose to argue the grounds of appeal chronologically. I will follow the same order in resolving them as they were presented.
Ground 1: the Learned Trial Magistrate erred in law and infact in finding that the Respondent had any cause of action against the Appellant.
The appellant argued that the learned trial Magistrate erred to find that Respondent had a cause of action against Appellant.
The main contention was that the Respondent/Plaintiff was not the owner of Motor vehicle Registration No. UAM 201C, and that it was owned by MM Home Brothers Ltd to which he was director. Applicant/appellant submitted that the Respondent’s plaint does not disclose a cause of action; and ought to be struck out under O. 7 r. (11) (a) of the Civil Procedure Rules.
Respondents replied that learned trial Magistrate was right in his findings that the respondent had action in trespass.
The law is that to disclose a cause of action the court has to examine the plaint. It was so held in ONESFERO BAMUWAYIRA AND 2 ORS V. AG  HCB 87, and also in NAGOKO V. SIR CHARLES TURYAHAMBA & ORS (1976) HCB 99 thus:
“The principle applied in determining whether or not a plaint discloses a cause of action is that court must look only at the plaint.”
In this case I will examine the plaint. The relevant parts are reproduced here below:
“3. The plaintiff’s cause of action arose as follows:
- That on 26th of July 2012 and 29th a strange unknown person to the plaintiff hired his motor vehicle Reg. No. UAM 201C Fuso Truck Light green in colour to transport cement from Tororo Cement Industries Ltd Factory to mile 3 Mbale road within Tororo Municipality Tororo Uganda.
- That on the 14th of August 2012 when the said driver and the turn man entered Tororo Cement Industries Ltd to deliver more clay, on leaving Tororo Cement Industries Ltd premises, they were intercepted by the security guards on orders of management.
- That upon the interception, they were arrested and later transferred to Tororo Police Station and charged with theft of Tororo Industries Ltd Cement and plaintiff’s Fuso Truck they were driving was also detained by Tororo Cement Industries Ltd without any lawful authority or court order and they so continue to detain the same today.
4. That the plaintiff avers and contends that he has been earning shillings one million, for each working day from the said truck and as a result of the defendant’s action he has lost income and continues to loose the same and he will demand for compensation of the same until due release of the said truck.
5. The plaintiff further avers and contends that as a result of the said defendant’s action he has been put to unnecessary expenditures and inconvenience and will therefore demand for general damages for the same.
Wherefore the plaintiff moves this honourable court in judgment against defendant for;
- Unconditional release of his truck UAM 201C Fuso Truck light green colour.
- Daily income of shillings 1 million per day from date of interception until the release of the said motor vehicle.
- General damages for inconvenience.
- Costs of the suit.
If the above plaint is subjected to the standard laid down in the case of Auto Garage and Others v. Motorkov (No.3) (1971) EA 514, where Spry V. P summarized the essential elements for a cause of action as.
- The plaintiff enjoyed a right.
- The right has been violated.
- The defendant is liable.
The following is revealed.
- Whether plaintiff enjoyed a right.
The plaintiff is Mugisha Fred. He describes motor vehicle UAM 201C Fuso Truck light green as “his vehicle.” The plaint is silent on any other owner of this truck. The fact of MM and M Home Brothers Transporters being the owners of the truck is not mentioned anywhere in the pleadings. It came up later during hearing (cross-examination). The plaintiff establishes, (without reference to evidence on record) a fact that plaintiff’s possession of truck motor vehicle UAM 201C on 14th of August 2012 (as per paragraph (3) (d) and (3) (e) of the plaint), was interfered with by defendant. The work which the truck was meant to do was for the plaintiff. (see paragraph 3(a),(b), (c), (d), (e), 4 of plaint). The defendant was benefiting from the use of plaintiff’s truck and was paying for the services (paragraph 3, 4, 5, and 6 of plaint). These facts from a reading of the plaint propose that the plaintiff enjoyed the right.
- That the right has been violated.
The contents of the plaint in paragraphs 3(a), (b), (c), (d), (e), (f), 4 and 5 show that the right of the plaintiff to the use of the said truck to further his business transactions as described in the plaint were violated.
- That the defendant is liable.
From the plaint in paragraph 2, 3, 4, 5 and 6, the defendant is properly named, described, and shown to be liable for the actions complained of therein. The annexed ticket, loading instruction slip, tax invoices all show a relationship between the alleged truck UAM 201C and the defendant company. The defendant is therefore shown by plaintiff’s pleadings as liable.
I do not agree with appellant’s counsel’s view that the court should import evidence led during the trial to the assessment of whether a “plaint disclosed a cause of action,” under O.7 r.11 of the Civil Procedure Rules to which the case of Specioza Kalungi and 61 Others v. Attorney General & Anor. HCCS 63/2008 refers. The case clearly talks of rejection of the plaint for being a nullity. At this stage of pleading court is limited to only facts disclosed in the pleadings and is guided by them to check whether the plaintiff has disclosed a cause of action or not. It is therefore wrong to import in the issue of title to the vehicle which fact was not even pleaded in the defendant’s written statement of defence nor in the counter claim. I therefore find that the plaint was rightly retained, because it disclosed a cause of action. I also decline to strike it out as proposed by appellants. The ground fails.
Ground 2: That the learned trial Magistrate erred in law and fact in holding that the Respondent’s suit was based on the law of trespass whereas not.
In his judgment after hearing all evidence, the learned trial Magistrate found that plaintiff was in possession of the car but he was not the “owner.” The owner was a company for which he was the director called M and M Home Brothers Transporters Ltd.
With due respect to the arguments by the appellants, as regards the lack of title by respondent to the ownership of the vehicle, I wish to point out that at common law, in actions both of detinue and trespass, “ownership” is not the major consideration. The law considers “possession” of the chattel at time of deprivation of its use or enjoyment as the main factor. Commenting on this tort under the heading “trespass to goods” Paula Culiker and Silas Bacwith (Sweet and Maxwell) 2nd Edition, textbook on Tort at page 355, comments thus:
“This tort is generally regarded as actionable without proof of damages. The key to this tort is interference with possession not the ownership of goods. In Wilson v. Lombak Ltd (163) 1 WLR 1294 for example, the plaintiff was found not to be the true owner of the car, having purchased the vehicle from a person who had no right to sell the car. Nonetheless, he was found to be in possession at the time of the trespass, and was therefore able to bring an action for trespass to goods. The question is therefore whether the claimant was in possession at the time the interference took place….”
This statement of the law bails out the plaintiff who was possessing the truck at time of trespass though its title (ownership) was in the company.
It is also a common law principle that the line between detinue and trespass lies in the relief that the party seeks for from the court.
Hon. J. Okello in Osma v. Transocean Ltd CS.1386/86 (Unreported), but quoting the position as in Winfield and Jolowiz on Tort 12th Edn page 649 defines Detinue thus:
“The gist of the wrong in a tort of detinue therefore lies in the wrongful detention of the property by the defendant after demand by the plaintiff for its release.”
For the above reason appellant’s counsel argued that plaintiff’s action should have clearly showed if its founded on detinue or on trespass or both.
He referred to Departed Asians Custodian Board v. Issa Bukenya CA 26/1992.
His argument is that failing to specifically plead either detinue or trespass or both was a fatal omission by plaintiff/respondent which rendered the learned trial Magistrate’s award of shs. 10,000,000/= on that basis unlawful.
The case of Departed Asians Custodian Board v. Issa Bukenya CA. 26/92 discusses the above scenario. Appellant’s highlighted bits of statement that the lead judgment of Hon. Platt JSC (as he then was) discusses. It is a lengthy judgment which went at length to discuss the tort of trespass to goods. The judgment distinguishes detinue from trespass, and shows instances when a plaintiff should plead either of them. The judgment however further guides as follows:
“It is said that the court can give what judgment it likes. The plaintiff may have in mind such cases as appear in Atkin’s at page 136 that today the court can given the remedy the facts justify even if the plaintiff may have called his action by a wrong name. There is now no need to state a particular form of action. But it is to be noted that while the nature of the claim that is either conversion or detinue may be one thing, such word as “damages for conversion are a convenient method of expressing a claim for damages as opposed to the claim for the return of goods or their value, (the claim in an action for detinue).”
The question here is therefore, did plaintiff put forward a proper plaint from which evidence could be led so that judgment could be given on the question of interference to his goods?
An examination of the pleadings (plaint) and evidence on record as a whole leads me to agree with the learned trial Magistrate that there is. This is so because from the plaint the plaintiff is clear as to what he wants from court. Paragraph 6 states that:
“ a) Unconditional release of his truck UAM 201 C Fuso Truck light green in colour.
- Daily income of 1 million per day from date of interception until the release of the motor vehicle.”
This had been detailed in paragraph 4 where the plaintiff averred:
“That the plaintiff avers and contends that he has been earning shillings 1 million for each working day from the said truck and as a result of the defendant’s action he has lost income and continues to loose the same and will demand for compensation of the same until the release of the said truck. (This imputes an action based on detinue); and he demands for damages arising there from in (paragraph 5).”
From the above, I am in agreement with appellants technically that this plaint and facts are based on detinue. However this is not fatal to the findings because at common law as discussed by J. Platt above and other scholars the dividing line is thin. These are torts best termed as “trespass to goods” and are discussed always as such. The learned trial Magistrate hence could have missed the genere but he got the principle and the law right. In my view the result of the learned trial Magistrate’s analysis (save for calling it trespass) was correct. I do find that this grounds succeeds only in part as discussed.
Ground 5: The learned trial Magistrate erred in law and fact in holding that the Respondent was entitled to compensation for lost business despite not owning the truck.
This ground is misplaced. The appellant argues that since Respondent did not own the truck then he did not suffer any inconvenience to justify the award of 10,000,000/= in general damages and instead its appellant who suffered inconvenience and lost 22,512,512/= in unpaid price for 800 bags of cement.
From the discussions in ground 1 and ground 2 I have already shown that in this type of case at common law, possession not ownership is the key consideration. The case of Departed Asians property Custodian Board (supra) discusses this point very well- and the other law as discussed. I am therefore unable to find justification for the arguments in this ground.
I do not see any contrary evidence to prove that the award of 10,000,000/= was excessive. This ground therefore fails.
In the final result, I do not find merit in this appeal. It is not proved. It is dismissed with costs to the Respondents. I so order.
Henry I. Kawesa