Wakilii

Kisawuzi v Walusimbi (Civil Appeal No. 19 of 2010)

High Court · [2012] UGCOMMC 136 · 2012 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Chief Magistrate's Court dismissing plaintiff's claim for conversion and granting defendant's counterclaim
Decision
Appeal allowed, vehicle returned to appellant, remedies between parties to be determined afresh by trial court with Geoffrey Mwase added as party

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court allowed the appeal, holding that the respondent acquired no title to the motor vehicle because the seller Geoffrey Mwase had stolen it and was subsequently convicted of theft. Under section 24 of the Sale of Goods Act, conviction of the seller for theft revests ownership in the true owner notwithstanding any intermediate dealings. The court found no evidence of a sale in market overt and held that the chief magistrate erred in law by failing to consider section 24 and by applying estoppel principles where the seller had impersonated the owner and stolen the vehicle.

Outcome

Appeal allowed, vehicle returned to appellant, remedies between parties to be determined afresh by trial court with Geoffrey Mwase added as party

Facts

The appellant owned motor vehicle UAL 688F. Geoffrey Mwase approached the appellant pretending to be interested in purchasing the vehicle and obtained possession of the vehicle, logbook, keys and transfer forms. Mwase disappeared with the vehicle and subsequently sold or mortgaged it to the respondent for UGX 25,000,000. Mwase impersonated the appellant during the transaction with the respondent. The appellant reported the matter to police and located the vehicle with the respondent. The Chief Magistrate dismissed the appellant's suit for conversion and granted the respondent's counterclaim. During the appeal, Geoffrey Mwase was convicted in a separate criminal case for theft of the vehicle and sentenced to one year imprisonment. He gave additional evidence on appeal that he had mortgaged rather than sold the vehicle to the respondent.

Issues

  1. Whether there was a valid sale agreement of the motor vehicle UAL 688F
  2. Whether the respondent is the rightful owner of the suit vehicle
  3. Whether the appellant was precluded by his conduct from denying Geoffrey Mwase's authority to sell the vehicle
  4. Whether failure to serve the memorandum of appeal on the respondent for two years rendered the appeal incompetent
  5. What remedies are available to the parties given the subsequent conviction of Geoffrey Mwase for theft

Orders

  • Appeal allowed
  • Title to the vehicle revests in the appellant
  • Vehicle to be delivered to the appellant
  • Matter remitted to trial court for fresh determination of remedies as between appellant, respondent and Geoffrey Mwase (to be added as party)
  • Appellant awarded costs of the appeal

Rules and key headnotes

Sale of Goods — Nemo Dat Quod Non Habet — Theft of Goods — Effect of Conviction on Title
Where goods have been stolen and the offender is prosecuted to conviction, the property in the goods revests in the true owner notwithstanding any intermediate dealing with them by sale or otherwise under section 24(1) of the Sale of Goods Act.
Sale of Goods — Market Overt — Prerequisites for Valid Sale
The exceptions to the nemo dat quod non habet principle under section 22(1) of the Sale of Goods Act only apply where there is a sale in market overt, which requires an open, public and legally constituted market where goods are openly sold according to the usage of the market.
Sale of Goods — Estoppel by Conduct — Goods Obtained by Impersonation
Where goods are obtained by a third party through impersonation of the true owner, the true owner is not precluded by conduct from denying the impersonator's authority to sell, even where the owner voluntarily parted with possession and documentation, absent evidence of agency or a duty of care to the purchaser.
Appeals — Service of Memorandum of Appeal — Waiver of Procedural Irregularity
A respondent who participates in interlocutory applications on the merits of an appeal and cross-examines witnesses adduced on appeal conducts himself so as to waive the right to object to the competence of the appeal on grounds of failure to serve the memorandum of appeal, under the doctrine of waiver and estoppel by conduct.
Appeals to High Court — Service Requirements — Order 43 Civil Procedure Rules
While Order 43 of the Civil Procedure Rules does not prescribe specific rules for service of the memorandum of appeal itself, notice of the day fixed for hearing must be served on the respondent in the manner provided for service of summons under Order 5, and such notice should be accompanied by the memorandum of appeal and record of proceedings.

Legislation cited (20)

Cases cited (12)

  • Bishopsgate Motor Finance Corporation v Transport Brakes Ltd [1949] 1 KB 332
  • MM Sheik Dawood v Keshwala and Sons (Civil Appeal No. 1 of 2009)
  • Banco Arabe Espanol v Bank of Uganda (SCCA No. 8 of 1998)
  • Col Dr Besigye Kiiza v Museveni Yoweri Kaguta (Electoral Petition No. 1 of 2001)
  • Akon International v Kasirye Byaruhanga and Co Advocates [1995] 3 KALR 91
  • FJK Zabwe v Orient Bank and five others [2007] 1 HCB 24
  • Dr Kiiza Besigye and others v Attorney General (Constitutional Petition No. 7 of 2007)
  • Uganda v Sekabira and 10 others (Criminal Session Case No. 0085 of 2010)
  • Kamins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1970] 2 All ER 871
  • Pearson v Rose and Young Ltd [1950] 2 All ER 1027
  • Sentamu v Uganda Commercial Bank and another [1983] HCB 61
  • Salomon v Salomon [1897] AC 22

Full judgment

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Kisawuzi v Walusimbi (Civil Appeal No. 19 of 2010) [2012] UGCommC 136 (9 November 2012)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.