THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA HOLDEN AT JINJA
CIVIL SUIT NO. 069 OF 2010
MUHAMMAD ILYAS :::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF
OPURE FRED::::::::::::::::::::::::::::::::::: ::::::::::::::::::DEFENDANT
BEFORE: HONOURABLE JUSTICE EVA K. LUSWATA.
Introduction and brief background.
The plaintiff’s claim in this suit is for the recovery of a motor vehicle or in the alternative its value, hire costs for the vehicle, and general damages with interest.
The brief facts are that on 16/6/2009, the plaintiff purchased a motor vehicle (Toyota Hilux double cabin) registration No. UAM 754C, Chassis No. LN 109-001373 (hereinafter the vehicle) from M/s Auto Africa Ltd at a sum of Sh. 38,000,000 which he paid for in full but the vendor retained the vehicle pending its registration. That on 20/6/2009, the defendant received the vehicle from its vendor and confirmed its receipt to both the vendor and the plaintiff. Upon a request for it return to the plaintiff, the defendant requested and it was agreed that he retains the vehicle on a hire basis at a sum of Shs. 120,000 per day. He failed to pay the hire charges or to return the vehicle to the plaintiff the latter who considers it breach of the hire contract and deceit.
The defendant who admitted being in possession of the vehicle, denied the claim of deceit and breach of contract. He contended that he purchased the vehicle from the plaintiff for a sum of Shs. 40,000,000 which was paid in full. That the plaintiff breached that contract of sale when he declined to hand over the logbook to him and that the charge instigated by the plaintiff for obtaining goods by false pretences, was discontinued by the Director of Public Prosecutions. He continued that he lawfully received the vehicle from its vendor upon the plaintiff’s authority and denied ever entering into a contract of hire with the plaintiff.
Counsel Evans Tusiime represented the plaintiff, while counsel Bruno Serunkuuma held the brief of counsel Sewankambo Hamza to represent the defendant. Scheduling was done interparty but the defendant and his counsel failed to appear in Court on the scheduled hearing date of 26/8/2019. On the same date I allowed counsel Tusiime’s application for exparte proceedings under Order 9 r 11 CPR. The plaintiff presented three witness who adduced their evidence by witness statements. Counsel then filed written submissions as directed. The following is my decision on the matter.
By a joint scheduling memorandum filed on 7/9/2015 several facts were not contested. For the avoidance of doubt, I will repeat them verbatim:-
- The motor vehicle registration No. UAM 764C Toyota Hilux double cabin, model 1994, green in color is registered in the manes of Muhammad Ilyas, the plaintiff
- Muhammad Ilyas purchased motor vehicle registration No. UAM 764C from Japan Auto African Ltd on 16/6/2009 at Uganda shillings 38,000,000 (thirty eight million shillings only)
- It is the defendant, Opure Fred that received the said motor vehicle (UAM 764C) from Japan Auto Africa Ltd on 20/6/2009
- Opure Fred has been in possession of the said motor vehicle (UAM 764C) from 20/6/2009 up to now.
Further, all plaintiff’s documents were admitted without contest and marked P1-P8. The defendant presented three cheques which were admitted for identification purposes only and marked ID 1 to ID 3.
In addition, counsel agreed to two issues for resolution by this Court:
- Whether the plaintiff sold motor vehicle registration No. UAM 764C to Opure Fred
- Whether the plaintiff is entitled to the remedies prayed for.
It was the plaintiff’s testimony that he was well acquainted with the defendant and that they had done business before. That the defendant was aware that he purchased the motor vehicle from the vendor on 16/6/09. He continued that during his absence from Uganda, on 20/6/2009, the defendant misrepresented to the vendor that he had the plaintiff’s authority and thereby received the vehicle from them and has retained it to date. Those facts were not denied and in fact admitted.
It was not in contest that the vehicle is registered in the plaintiff’s name. The defendant did not in his pleadings furnish proof that he received the motor vehicle from its vendor with authority of the plaintiff. He claimed but presented no evidence that he retained the vehicle as a result of a purchase agreement between him and the plaintiff. He was absent in court to support the evidence that sometime in 2009, he paid for the motor vehicle in the sum of 40,000,000 using two cheques.
Even then, the plaintiff explained by himself and through PW2 Muhammad Sulaiman his brother that one of those cheques was issued in favour of PW2 for the purchase of motor vehicle registration No. UAL 153G, and the other cheque was for payment for a motor vehicle registration No. UAJ 001G that the plaintiff had sold to him previously. PW2 further clarified that any money that the defendant paid to the plaintiff on 21/8/2009, was in respect of the vehicle PW2 sold to the defendant, and not payment for the motor vehicle in issue. That evidence was not expressly rebutted.
I do agree with plaintiff’s counsel on his submission that the defendant furnished virtually no proof that he purchased the vehicle from the plaintiff. PW3, the vendor’s agent confirmed that they sold the vehicle to the plaintiff and processed registration in his name once the purchase price was paid in full. PW3 clarified that they handed over to the vehicle to the defendant not as its owner but as the plaintiff’s agent/driver. Thus, without a purchase agreement or any other proof of purchase, and upon his own admission that he had received the vehicle and had possession of it, the plausible conclusion would be that it is the plaintiff who is the legal owner of the vehicle. Again it was not rebutted that the plaintiff made attempts to recover the vehicle and even lodged a complaint with police, a result of which the defendant was partly prosecuted. Counsel Tusiime explained and it was not contested that, withdrawal of the charge was by the DPP in his discretion.
I am convinced then that the plaintiff never sold the vehicle to the defendant for the sum of shs. 40,000,000 and the first issue in decided in the plaintiff’s favour.
The plaintiff prayed for several remedies some in the alternative. I agree with his counsel that due to the time lag since the defendant wrongly retained the vehicle, the remedy of its physical recovery would not be justifiable in the circumstances. It is an admitted fact that the plaintiff purchased the motor vehicle for shs. 38,000,000 and the defendant wrongfully retained it when new and with no fact of depreciation or damage. I would accordingly allow the claim of the cost of the vehicle as prayed.
Beyond the fact that the defendant had a business of Tour and Travel, no evidence was adduced that his client(s) had offered to pay Shs. 120,000 per day for the vehicle, which he in inturn offered to pay to the plaintiff. Specifically there was no documentary or other persuasive evidence that the two parties entered into a retain-for-hire agreement at a cost of Shs. 120,000 per day. Therefore, there would be no basis for the claim of special damages that require pleading and specific proof.
The above notwithstanding, by receiving and retaining the vehicle without any claim of right or authority, the defendant committed the tort of detinue/conversion for which general damages are recoverable. I also agree with plaintiff’s counsel that the plaintiff was unfairly treated and must be restored to the position he ought to have been, had he not been deprived of his vehicle. That in law would invite general damages. Such damages have been stated to be the type that the law implies or presumes naturally to flow or accrue from a wrongful act and may be recovered without proof of any amount. (See Traill v Bowker, (1947) 14 EACA 20) and Patel and Amin (1955) 11 EACA 1, cited in East African cases on the law of Tort by Veitchat page 253.
Measurement of quantum of damages is a matter for the discretion of the individual judge which of course has to be exercised judicially. Plaintiff’s counsel did guide court on what to consider when making the award. In addition, a fair award may be aided by many considerations which could include, the nature of the business of the plaintiff and extent of the injury to their operations and prior decisions that are relevant to the case in question. See for example, Moses Ssali a.k.a Bebe Cool & Others Vs A.G and Others HCCS 86 2010. The decision of the Court in Uganda Commercial Bank Vs Deo Kigozi 2002 EA 293, gave useful guidance on what to follow. It was held that:-
“……….in assessment of the quantum of damages, courts are mainly guided by the value of the subject matter, the economic inconvenience the party may have been put through and the nature and extent of the breach or injury suffered.” General damages are those that the law presumes to arise from the direct, natural or probable consequences of the act complained of by the victim; they follow the ordinary course and relate to all other terms of damage, whether pecuniary or non-pecuniary. General damages would include future loss as well as damages for past loss and suffering.
The unrebutted evidence is that the plaintiff purchased a new vehicle that he never received or put to use. The defendant’s conduct is also important. He took advantage of his relationship with the plaintiff to trick the vendor to release the vehicle to him. He admitted having its custody but upon request, refused to return it to its true owner. I agree with counsel that this was a clear breach of trust. Worse still, the attempted to mislead the Court that he had a bonafide claim to the vehicle and deliberately absented himself from Court to substantiate that claim, which was then proved to be bogus.
The plaintiff was in addition put through much pain and inconvenience. He took the trouble to report the matter to police, but prosecution of the defendant was ended prematurely. He also lost income and use as the owner of a new vehicle, for a period now spanning eleven years. His claim for general damages, the type that should fully reinstate his legal claim to the vehicle are justified. His counsel prayed for a sum of shs. 50,000,000. It is appropriate in the circumstances, and I grant it. The plaintiff will in addition be awarded interest closer to commercial rates since there was unrebutted evidence that the defendant was in the business of Tours and may have earned and continues to earn from the vehicle.
Accordingly, judgment is entered for the plaintiff in the following terms:
- An award of Ushs. 38,000,000/= being the cost of the vehicle
- An award of Ushs. 50,000,000/= in general damages
- The award for general damages shall attract an interest of 20% per annum from the date of judgment until payment in full
- The plaintiff is in addition, awarded costs of the suit
EVA K. LUSWATA