Christine Bitarabeho v Edward Kakonge (Civil Appeal 4 of 2000)

Supreme Court · [2003] UGSC 26 · 2003 Appeal Partly Allowed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Second appeal to the Supreme Court from the Court of Appeal, which had upheld a High Court judgment in a civil suit founded on the tort of detinue.

Decision

Appeal partially allowed; awards of the lower courts set aside (save for surrender of the vehicle) and substituted with general damages of Shs. 50,000,000 with interest.

The full judgment

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Holding

On a second appeal arising from a suit in detinue over a hired motor vehicle, the Supreme Court held that the question whether the appellant was the wrong party was one of mixed law and fact that could not be raised for the first time on appeal without leave to adduce additional evidence, so the Court of Appeal rightly declined it. The concurrent finding that the agreement was a contract of hire, not sale, was upheld. However, the courts below erred in awarding special damages for what was a tort of detinue: in detinue the value of goods is assessed at the date of judgment and the measure includes reasonable hire charges. The Court substituted a general damages award of Shs. 50,000,000.

Facts

The respondent, a Makerere University staff member, imported a tax-free Mitsubishi Pajero registered in his name. He and his wife negotiated to sell it, and the appellant's husband, Paul Bitarabeho, agreed to buy it for Shs. 25 million with a staged payment plan. Bitarabeho could not raise the money after failing to persuade the appellant to sell their old Pajero, so instead he and the respondent entered a written agreement (Exhibit P.3) to hire the vehicle at Shs. 50,000 per day, with Shs. 11 million paid in advance. Bitarabeho died after the advance was exhausted. The appellant then continued using the vehicle without the respondent's consent, refused to return it, and refused to pay further hire charges, claiming her late husband had bought it outright. The respondent sued in the High Court for a declaration of ownership, surrender of the vehicle, and damages. The vehicle had been valued at Shs. 25–30 million in 1990 and was returned to the respondent by court bailiffs in 1997.

Issues

Whether the Court of Appeal erred in declining to adjudicate, on first appeal, the issue of whether the appellant was the proper party sued, a point not raised at trial.
Whether the agreement between the respondent and the appellant's late husband was a contract of sale or a contract of hire of the suit vehicle.
Whether special damages were properly awarded where the cause of action was the tort of detinue, and the correct measure of damages.

Orders

The orders of the courts below are set aside, except the order for surrender of the suit vehicle to the respondent.
The respondent is awarded Shs. 50,000,000 as general damages, payable by the appellant with interest at the court rate from the date of the trial court judgment until payment in full.
The respondent is awarded four fifths of the costs of the appeal and of the costs in the courts below.

Key headnotes

Appeals — Raising a new point for the first time on appeal — Point of mixed law and fact

A point of mixed law and fact that was not pleaded or raised at trial cannot be entertained for the first time on appeal unless the appellant obtains leave to adduce additional evidence and the court is satisfied that the facts, if fully investigated, would establish the new plea.

Detinue — Measure of damages — Date of assessment of value

In an action founded on detinue the value of the detained goods is assessed at the date of judgment in favour of the plaintiff, not at the date of the defendant's refusal to return them, because the plaintiff retains and asserts property in the goods up to judgment.

Detinue — Measure of damages — Hire charges for detained chattel

Where a defendant detains a chattel that the plaintiff ordinarily lets out on hire, the measure of damages includes a reasonable sum for hire charges during the entire period of detention, up to the date of judgment or the date the goods are returned.

Special damages — Cause of action in tort of detinue — Impropriety of contractual special damages

Special damages of the kind appropriate to a breach of contract cannot be awarded where the cause of action is the tort of detinue; the proper award for wrongful retention of a chattel is general damages.

Construction of agreements — Hire distinguished from sale

Where the language of a written agreement is unambiguous, the court will construe it according to its plain terms and will not adopt a strained interpretation; an agreement to rent a vehicle at a daily rate is a contract of hire, not a contract of sale.

Legislation cited (6)

Rules of the Supreme Court rule 85(3)
Rules of the Supreme Court rule 85(4)
Rules of the Supreme Court rule 82
Rules of the Supreme Court rule 75
Rules of the Supreme Court rule 93(1)
Court of Appeal Rules Order 29(b)

Cases cited (10)

Paul Ssemwogerere and Z. Olum v Attorney General (Constitutional Appeal No. 1 of 2000)
In Tasmania (1890) 15, A.C. 223, at 225
In Exparte Flinth (1882) 19.ch.D 419 at 429
North Staffordshire Railway Co v Edge [1920] A.C. 254
Ngakwila v Lalami [1972] E.A. 182
Rosenthal v Alderton [1946] K.B. 374
Strand Electric and Engineering Co Ltd v Brisford Entertainments Ltd [1952] 2 Q.B. 246
KCC -vs- Nakamya
Hyams v Ogden [1905] 1 K.B. 246
General & Finance Facilities Ltd v Cooks Cars (Romford) Ltd [1963] 2 All E.R. 314

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