Agama and Another v Okwakol and 11 Others (Land Civil Suit No. 15 of 2017) [2022] UGHC 103 (17 August 2022)

The Republic of Uganda

## In the High Court of Uganda Holden at Soroti

Civil Suit No. 15 of 2017

1. Agama Richard :::::::::::::::::::::::::::::::::::: 2. Ochom Michael

$V<sub>S</sub>$

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Okwakol Joseph & 11 Others ::::::::::::::::::::::::::::::::::::

Before: Hon. Justice Dr Henry Peter Adonyo

## Judgment

The plaintiffs filed this suit against the defendants jointly and severally for the following orders;

- a. An order for compensation of destroyed property occasioned by the unlawful, unreasonable and illegal damage to property caused by the wilful, malicious, negligent and or reckless actions of the defendants and their agents, servants among others. - b. A declaration that the defendants' actions of denying the plaintiff to utilize the suit land and destroying his crops even when court allowed, infringed on his proprietary and constitutional rights and are unlawful. - c. A declaration that the defendants have illegally, unlawfully, maliciously interfered with the plaintiff's rights ignoring court orders.

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d. A permanent injunction, special damages, exemplary damages, general damages, payment of interest and costs.

The 1<sup>st</sup> plaintiff is the Administrator of the Estate of the late Ikuret Peter and beneficiary of suit land comprised in Atutur together with his brothers.

On the $7<sup>th</sup>$ /08/2016, Court of Appeal issued an order staying execution of 10 Civil Appeal No. 16 of 2013 of Soroti which allowed the plaintiffs to remain and utilize 85 acres of the suit land at Atutur Sub-county, the respondent in Appeal to utilize 15 acres where the school is located.

Apparently, either through ignorance of the law or by deliberate acts, the defendants stopped the plaintiffs from using the suit land as ordered by 15 court, destroyed their crops and houses of the plaintiffs in total violation of the court order.

The plaintiffs' property was destroyed and vandalized by the defendants and/or their agents after holding several meetings contrary to the pronouncement in the order of the Court of Appeal.

The defendants themselves variously discussed and held meetings that stopped the plaintiffs from tending to their crops and cultivating the suit land as pronounced by the Court of Appeal. The plaintiffs attended some of the meetings.

The Defendants were further quoted by newspapers threatening the 25 plaintiffs in which direct threats were issued on 13<sup>th</sup> -19<sup>th</sup> April 2017 in the Etop Newspaper.

The defendant's in their joint written statement of defence denied the claim and contended that in about March 2017, the 1<sup>st</sup> and 3<sup>rd</sup> defendants got information from the plaintiff that the community had stopped him from using his land yet he had a court order giving him the land.

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That later after the District Police Commander of Kumi got intelligence concerning a brewing conflict about the suit land and the 3<sup>rd</sup> defendant called a meeting.

Upon reaching the suit land people from the village were demonstrating and threatened violence but were calmed by the 1st defendant and his team who informed the rioters that they had not come to implement any court order and further advised the plaintiff to first stop any activity on the land to avoid fuelling the already violent situation.

The 1<sup>st</sup> -3<sup>rd</sup> defendants averred that if not for their involvement and appropriate discharge of their duties as leaders of Kumi District the security situation in Atutur would have gone out of hand as there is an apparent bitter land struggle between the community and the plaintiffs. The defendants denied destroying any properties and calling any meetings to discuss issues concerning the disputed property.

This matter was set down for hearing but the defendants without justifiable reason opted not to participate in the hearing and court 20 directed the matter to proceed exparte.

On the 9<sup>th</sup> of March 2022, counsel for the plaintiffs prayed, pursuant to order 9 rule 20 of the CPR that this suit proceed ex parte given the nonattendance by the defendants' despite being dully served.

This court being satisfied that there was sufficient service and no reason 25 had been given by the defendants for non-appearance ordered that the matter proceeds ex parte and it was fixed for formal proof.

The plaintiffs led the evidence of four witnesses to prove their claim.

PW1, Agama Richard testified that he holds letters of administration to the estate of the late Ikuret John Peter and he left an estate measuring 30 approximately 100 acres of land at Atutur village, Atutur Parish, Atutur

Sub County, Kumi District. This land is the subject of Civil Appeal No. 16 of 2013 at the Court of Appeal.

Atutur Sub county, Kumi District Land Board, Kumi District Local Government and Attorney General were threatening to evict him from the suit land which resulted in him securing an injunction from the Court of Appeal on the $7<sup>th</sup>$ of September 2016.

The court order allowed him and his family to remain in occupation of 85 acres the suit land while the Respondents were allowed to occupy the 15 acres.

He endeavoured to serve the Attorney General Mbale/Ministry of Justice and Constitutional affairs with the said court order. When the family of 15 the late Ikuret embarked on cultivating the suit land the 2<sup>nd</sup> defendant attempted to stop them and went as far as reporting them to the RDC and LC<sub>5</sub>.

The family was later summoned and asked to present the court order allowing them to cultivate the land.

That together with Opio Paul his younger brother he took a copy of the order to the RDC (1<sup>st</sup> defendant), CAO, DPC and Regional Police Soroti. That the RDC then asked him to go with him to the RSA Kumi for a consultation on the order and the RDC was advised to comply with the said order.

That on return to the RDC's office they found a team of people including $2^{nd}$ , $5^{th}$ , $7^{th}$ , $8^{th}$ , $9^{th}$ and $12^{th}$ defendants seated in the office.

That the RDC told him that he was going to have a meeting with him and his brothers, they were asked to get out and the RDC first met the $2^{\rm nd}, 5^{\rm th}, 7^{\rm th}, 8^{\rm th}, 9^{\rm th}, 10^{\rm th}$ and $12^{\rm th}$ defendants for more than 2 hours.

That thereafter they were called back into the office and the 1<sup>st</sup> defendant informed them that they were going to follow the court order and that there were going to be meetings with the community on the suit land on $5^{\text{th}}$ , $10^{\text{th}}$ and $15^{\text{th}}$ of April 2017.

That a notice was issued by the 2<sup>nd</sup> defendant to various authorities to mobilize the community to attend a meeting on 5<sup>th</sup> April. This meeting was held at Atutur Secondary School now called Merryland Secondary School and that except for the 2<sup>nd</sup> plaintiff, the family of the late Ikuret did not attend the meeting because they had heard of plans to kill them.

That he later learnt through the 2<sup>nd</sup> plaintiff, Adito John William, Akol Michael and other people that were in the meeting that the 2<sup>nd</sup>, 4<sup>th</sup> to 12<sup>th</sup> 15 defendants led by the 2<sup>nd</sup> defendant threatened to shed blood and destroy their crops if they did not abandon the land purportedly belonging to the government.

That the 2<sup>nd</sup> plaintiff was almost beaten up by the mob led by the 2<sup>nd</sup> defendant who were carrying big sticks.

That the $4^{th}$ to $12^{th}$ defendants turned up for the meeting with big sticks. That the summary of what transpired in the meeting was captured in $Etop$ Newspaper dated 13-19<sup>th</sup> April 2017 where it was clearly shown that the LC5 (3<sup>rd</sup> defendant) instigated violence among the crowd as she disregarded the Court of Appeal Order and swore she will not allow the plaintiffs to take over the land, the newspaper also captured that the 2<sup>nd</sup> defendant the LC3 led a team which came with big sticks and wanted to shed blood.

That a second meeting was held on 10<sup>th</sup> April 2017 but he went together with Opio Paul to Soroti Regional Police station and met the Regional

Police Commander who called the DPC Kumi and told him to disperse the meeting because the court order was genuine.

That the OC CID said that another court order was on the way and the plaintiff and his family should stop cultivating the land and the Regional Police Commander asked the OC CID to give them a copy of the order.

That a third meeting did not take place because the Regional Police 10 headquarters Soroti sent a team to disperse the crowd that had assembled. That on the $12^{th}$ of May 2017 the $4^{th}$ to $12^{th}$ defendants led by the $2^{nd}$ defendant uprooted three gardens of groundnuts, two gardens of cassava and one garden of maize and the incident was reported to the police vide malicious damage to property SD Ref 02/12/05/17.

That on 15<sup>th</sup> May 2017 at around 1:00am the 2<sup>nd</sup> plaintiff's house was set on fire which led to loss of property worth Ugx. $5,000,000/=$ and the said incident was reported to the police vide SD ref $04/15/05/17$ . This act was repeated twice on $13^{\rm th}$ July 2017 and $24^{\rm th}$ August 2017 and were reported to the police vide SD ref $07/13/07/17$ and SD Ref $06/24/08/17$

That the police refused to forward the files to the office of the DPP when requested to do so. He was assaulted by the $7^{\rm th}$ defendant on $5^{\rm th}$ June 2017 and this was reported to police vide SD ref $07/05/06/17$ .

Furthermore, that on 18<sup>th</sup> August 2017 one garden of sweet potatoes, two 25 gardens of cassava, two gardens of beans, two maize gardens and two gardens of millet were uprooted and the case was reported to police vide SD Ref 08/18/08/17.

That they could always notice the 7<sup>th</sup> defendant moving around their land and thereafter the family would notice damage to their crops. That at every burial in Atutur Sub county the 2<sup>nd</sup> defendant would order the people to

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respectively.

graze their cattle on plaintiffs' land which gave people leeway to damage their crops.

PW2, Ochom Michael largely corroborated what PW2 stated but added that he attended the first meeting despite the warning on plans to kill him and his family members. He recorded what transpired at the meeting with his phone, the 3<sup>rd</sup> defendant uttered threats to the family and instructed the community to slaughter the plaintiffs' family with pangas if they found them on the land. The 6<sup>th</sup> defendant asked them to vacate the land because every time they were attacked she was also made a victim.

That throughout the meeting he was pinched by the 7<sup>th</sup>,8<sup>th</sup> and 12<sup>th</sup> defendants. 12th defendant threatened to burn down their houses and 15 destroy the crops if they did not leave the land. 9<sup>th</sup> defendant stated that the land the plaintiffs are cultivating is not theirs and they should be killed.

During the meeting he was asked by the 3<sup>rd</sup> defendant if the late Ikuret's family was willing to give up their claim on the land. The 2<sup>nd</sup> and 3<sup>rd</sup> defendants claimed that the court order was fake.

PW3, Adito John William testified that the he is a neighbour to the family of the late Ikuret and the estate measuring approximately 100 acres has been a subject of dispute with the local authorities for a long time since the sub-county leadership has always wanted to establish a school on the land belonging to the plaintiffs. He corroborates PW1's testimony on the meeting held on 5<sup>th</sup> April, destruction of crops and the 2<sup>nd</sup> plaintiff's houses. He stated that the 1<sup>st</sup> to 6<sup>th</sup> defendants warned the family of the plaintiffs not to cultivate the suit land and they cannot take that land alone and instigated violence in the crowd that attended the meeting. PW4, **Akol Michael** testified similarly as PW1 to PW3.

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## Documentary evidence:

PEX1 are letters of administration granted to Agama Richard on the 14<sup>th</sup> day of August 2013 by Hon. Lady Justice Wolayo in respect of the late Ikuret John Peter's estate.

**PEX2** is a court order from the Court of Appeal in Civil Application No. 39 of 2016 wherein the Court of Appeal ordered that the applicant (1st 10 plaintiff herein) to remain in occupation of the suit land measuring approximately 85 acres with the suit land to be used and occupied by only the beneficiaries of the Estate of the late Ikuret for cultivation of crops and grazing of domestic animals. This order was clearly seen and received by the Ministry of Justice and Constitutional Affairs Mbale regional office as 15 evidenced by the stamp on the said document.

**PEX3** is a notice dated 30.03.2017 informing Atutur Sub County through their leaders of a meeting with RDC and other district officials over the land dispute in Atutur Parish Government land. This notice signed by the second defendant with requests the LC1, LC2, Councillors, opinion leaders, church leaders and imams to mobilize the community to attend a meeting in large numbers.

**PEX4** are pictures of the damage done to the plaintiffs' crops and houses.

**PEX5** is a copy of the Etop Newspaper dated 13<sup>th</sup> to 19<sup>th</sup> April 2017. The translated version from Makerere University was filed in an additional 25 trial bundle. Summarily, the article states that a family of ten narrowly survived being wiped by an angry mob armed with hoes, pangas and clubs. It goes on to state that the mob was led by the LC3 Chairperson himself and they were ready to shed blood because they were blaming the family of the late Ikuret of trying to grab government land. 30 PEX6 is a routing slip from the RSA Kumi to the OC CID Kumi dated 16/05/2017 requesting that the files containing the complaints by the plaintiffs be forwarded for action.

PEX7 is a copy of the note dated 17<sup>th</sup> May 2017 wherein the Regional Police Commander directs the OC CID Kumi to investigate the complaints on Malicious damage to property and arson as well as give the plaintiffs and all stakeholders the new court order so that the law is observed.

**PEX8** is a notice of intention to sue for contempt of court of appeal orders issued by the plaintiffs' counsel to the defendants.

Submissions and Court findings.:

Counsel for the plaintiffs submitted on the following issues. 15

- 1. Whether the defendants are liable for destruction and damage caused on the plaintiffs' property? - 2. Whether the defendants' actions of denying the plaintiffs to utilize the suit land are unlawful? - 3. Whether the defendants stopped the plaintiff from using the land. - 4. What remedies are available to the parties?

Issue 1.

Whether the defendants are liable for destruction and damage caused on the plaintiffs' property?

Counsel submitted that as provided under Article 26 of the 25 Constitution;

> "Every person has a right to own property either individually or in association with others and no person

## shall be compulsorily deprived of property or any interest in or right over property of any description."

Counsel further submitted that the plaintiffs' right to property was violated as seen from the plaint under paragraph $4(c)$ and $(d)$ as well as the testimony of PW1 which was corroborated by PW2, PW3 and PW4.

Counsel made this submission with reference to **Maria Nakimera** 10 Nassanga V Teddy Nakawesa & 3 Ors Civil Suit No. 61 of 2002, where court held that;

> "In order for the plaintiff to establish that she suffered any loss or damage necessitating compensatory relief from this court, the plaintiff had to prove that her presence on the land was not illegal (did not amount to trespass), and that she actually owned the demolished structures. She also had to establish the respective monetary values of the houses and properties *constituting the claim.*"

Counsel stated that the plaintiffs were lawfully on the suit land as per the Court Order marked as PEX 2, they owned the demolished structure and crops that were destroyed and further that the plaintiffs had established the monetary values of the houses and properties constituting the claim as seen under Paragraph 5 of the plaint.

Counsel further submitted that while the defendants in the Written Statement of Defence plead that they were not aware of the Court Order and that they are not liable for destruction of the plaintiffs' crops, the defendants made threatening statements contemplating the destruction of crops and the same was captured in the Etop Newspaper marked as PEX 5 and the recording of the meeting done by the 2<sup>nd</sup> plaintiff. The


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plaintiffs led evidence with 4 witnesses who corroborated their evidence $\overline{5}$ to the effect that the defendants contemplated their actions of destructions and true to their word effected them. That the defendants are leaders within Kumi District and Atutur Sub-county who are well known to the plaintiffs as seen by the Notice of Intention to sue marked as PEX 8 indicating their titles and also admitted in the WSD. There is no way the 10 plaintiffs and their witnesses could have been mistaken about them.

Counsel finally submitted that from the foregoing uncontroverted evidence, it was very clear that the plaintiffs' right to their property vide crops and gardens was violated when the defendants destroyed the plaintiffs crops as they had contemplated the destruction of the plaintiff's crops and violence in the meetings held which included the burning down the 2<sup>nd</sup> plaintiff's houses on three different occasions which plans were indeed actualized and evident as seen from the photographs and in *Etop* Newspaper dated 13<sup>th</sup> - 19<sup>th</sup> April 2017 marked as PEX 4 and PEX 5, respectively. 20

From, the uncontroverted evidence adduced by the plaintiffs, it is clear that the defendants encouraged the violation of the plaintiffs' right to property for they mobilized the community of Atutur through their various leaders to go to a meeting where a mob was encouraged to violently destroy the properties belonging to the plaintiffs on the claim the suit land was government land.

Given the importance of land in society the defendants ought to have known the effects of rallying a meeting with an entire community to discuss a land dispute especially land that has been in dispute for a long time.

The leaders especially the RDC, LC3 and LC5 could have discussed the court order and the issues relating to the land without involving the

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- community but the fact that they invited the whole community indicates $\overline{5}$ that they envisioned damage to the plaintiffs' property as a means to an end in which they retain the land and this is seen, when in the presence of a riotous crowd, the 2<sup>nd</sup> plaintiff (PW2) was asked by the 3<sup>rd</sup> defendant if his family was willing to abandon their claim to the suit land. - Also by the police not investigating the various violations against the 10 plaintiffs and their families and in a manner declining to forward the files to the RSA, the defendants were encouraged to continue violating the plaintiffs' right to property. - This was in spite of the fact that a Court of Appeal order was clearly seen and received by the Ministry of Justice and Constitutional Affairs, Mbale 15 regional office/Attorney General's chambers as evidenced by its rubber stamp on the order.

The defendants were therefore aware that the plaintiffs were lawfully cultivating 85 acres of land. This knowledge is proved by the evidence of PW2, 3 and 4 who attended the meeting where the $2^{nd}$ and $3^{rd}$ defendant claimed the court order was fake.

Furthermore, in the WSD the defendants contend that the plaintiffs went to them seeking help that the community had stopped them from using the land yet they had a court order, this was in March 2017 before the meeting in April when the violations started.

This aspect is worsened by paragraph 2(f) of their WSD where they aver that the 1<sup>st</sup> defendant and his team informed the rioters that they had not come to implement the court order since they did not have it and were not mandated to do so and advised the plaintiffs to first stop any activity on the land to avoid fueling the already violent situation.

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- From all the above pieces of commissions and omissions, my finding is that the defendants were fully aware of the court order granting the plaintiffs' the right to cultivate the land despite the pending appeal but decided to provoke the community to cause destruction on the crops and structures on the land. - The defendants are thus accordingly found jointly liable for destruction 10 and damage caused on the plaintiffs' property.

Issue $2$ and $3$ .

- Whether the defendants' actions of denying the plaintiffs to utilize the suit land are unlawful? - Whether the defendants stopped the plaintiff from using the land.

Counsel submitted that the term *unlawful* as defined under the Black's Law Dictionary Abridged 5<sup>th</sup> Edition means,

"That which is contrary to, prohibited, or unauthorized by law. That which is illegal; not lawful. The acting contrary to, or in defiance of the law; disobeying or disregarding the law..."

Counsel went on to state that in the instant case, the defendants acted contrary to the Court of Appeal order in *Civil Application No.* 39 of 2016 between Agama Richard V Atutur Sub-County & 3 Ors which stated inter alia that; (see PEX $2$ )

"The Applicant shall remain in occupation of the suit land *measuring approximately 85 acres, it is understood that* it will only be occupied and used by the beneficiaries of the Estate of the late Ikuret John Peter for cultivation of crops and grazing of domestic animals, and this order

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## shall remain in force until the determination of court of *Appeal Civil Appeal No. 41 of 2016 pending in this court.*"

Counsel submitted that from paragraph $2(c)$ and (f) of the WSD, it is clear that the leaders chose to ignore the court order and acted with highhandedness to stop the plaintiffs from cultivating their land when there was a Court Order.

It is also seen that the defendants were just determined not to obey the court order. The defendants after knowledge of the court order held meetings wherein there were plots hatched to destroy the plaintiff's crops and acts violence ensued which included burning down the houses of the $2<sup>nd</sup>$ plaintiff on 3 (three) on different occasions with all of these incidents happening at the suit land which was the subject of the court order.

According to counsel, that as seen in issue 1 above, the defendants are liable for the destruction of the property as the evidence clearly showed that they knowingly acted with disregard to the court order which permitted the plaintiffs to use the land.

Basing on the uncontroverted evidence adduced in respect of the fact that unmitigated violence against the plaintiffs' properties occurred as a result of the actions of the defendants, I would agree with counsel and hold the defendants liable for failing to follow a clear court order which resulted in the defendants denying the plaintiffs the right to utilise their land and this

25 amounted to contempt of court orders which is unlawful.

## Issue 4.

What remedies are available to the parties?

- 1. <u>Compensation for the destroyed crops and gardens to be calculated</u> - at current market rate:

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In the case of *Kiggundu & 5 Others Vs Bunsa Local Council III &* $\overline{5}$ Anor C/S No.689 of 1996, Justice Monica K. Mugenyi held that;

> "In the instant case, having found that a cause of action has been established by the first, second and third plaintiffs against the first defendant, it does follow that an actionable wrong has been established for which the said plaintiffs are entitled to compensation.

> ... judgment is entered for the first, second and third plaintiffs as against the first defendant with the following orders;

> 1. The first defendant is ordered to effect compensation to the first, second and third plaintiffs in the sum of Ushs $682,410/=$ as follows;"

In respect of the instant matter, reference is made to paragraph 5 of the plaint wherein it is stated that;

5. The plaintiffs aver that the actions of the defendants were illegal and unlawful and caused damages to the plaintiffs' property for which the plaintiffs hold the defendants liable in compensation.

**Particulars of Damages**

| <i>i.</i> 2 <i>Gardens of cassava</i> | $100,000,000/=$ | |---------------------------------------|-----------------| | ii. 3 Gardens of $G/nuts$ | $120,000,000/=$ | | <i>iii.</i> Grassed thatched houses | $14,000,000/=$ | | <i>iv. Household items.</i> | $13,000,000/=$ |

PW1 Agama Richard under Paragraph 43 of his witness statement testified in this respect; 30

THAT I pray that court orders the defendants to compensate $4.3.$ us *Ug shs 255,110,000* as pleaded in paragraph 5 and 6 of the plaint.

## PARTICULARS OF DAMAGES

| <i>a) 2 Gardens of cassava</i> | $100,000,000/=$ | |-----------------------------------|-----------------| | b) 3 Gardens of $G/nuts$ | $120,000,000/=$ | | <i>c) Grassed thatched houses</i> | $14,000,000/=$ | | <i>d) Household items.</i> | $13,000,000/=$ | | | $247,000,000/=$ |

PW2 Ochom Michael under paragraph 49 of his witness statement testified that; 15

- THAT to date the defendants have frustrated us from quiet 49. enjoyment of our inheritance from our late father despite the court of Appeal issuing an order allowing us to cultivate the 85 gardens of land. - Accordingly, the plaintiffs prayed for compensation for the destroyed 20 crops.

From the foregoing, this court would be satisfied the plaintiffs have shown and proved the extent of damage to their properties in paragraph 4(c) and (d) of the plaint by additionally attaching photos of the destruction

thereto, although the figures therein are a wee bit overstated. 25

Therefore, without any loss assessment made by an independent loss assessing professional, I would award the following as such loss;

| 1. | 2 Gardens of cassava | $2,000,000/=$ | |------|-------------------------|---------------| | ii. | 3 Gardens of $G/nuts$ | $4,000,000/=$ | | iii. | Grassed thatched houses | $6,000,000/=$ | | iv. | Household items. | $4,000,000/=$ |

Total, Shs. 16 million. This amount is awarded to the plaintiffs as against the defendants jointly.

2. General damages:

As regard general damages, counsel for the plaintiffs submitted that in the case of Deylon Johnson Wilson & 5 Others Vs AG HCCS No.0027/2010, Justice Byabakama noted that;

"The plaintiffs seek general damages as well. In determining the quantum of damages, the Courts have mainly been guided by the value of the subject matter, the inconvenience that party may have been put through, the nature and extent of the breach. A plaintiff who suffers damages due to the wrongful act of the defendant must be put in the position he or she would have been had he or she not *suffered the wrong.*"

Counsel then prayed that this Honourable Court be pleased to award the plaintiffs each Ug. shs. 20,000,000/= as general damages for mental torture, suffering and inconvenience.

I would agree with the evidence adduced that indeed the plaintiffs have indeed undergone through a lot of inconveniences and suffering at the hands of the defendants ranging from the destruction of their property to the constant threat to their lives wherein they have not even been helped by the police.

I would thus award each the sum of Ugx. 5,000,000 which is an amount sufficient for general damages.

## 3. Interest at 25%:

The plaintiffs through counsel prayed that this Honourable Court to award the plaintiffs commercial interest of 25% from the date of cause of action until payment in full since they had lost their houses and property

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therein together with their crops, with the result that they had lost their $\overline{5}$ means of livelihood which the defendants deliberately occasioned by damaging their properties.

In the case of *Uganda Petroleum Co. Ltd Vs Kampala City* Council Civil Suit No. 250 of 2015, the court awarded the plaintiff interest at a rate of 20% per annum on damages from the date of filing the suit until payment in full.

I would, considering the then prevailing economic situation award 18% per annum as interest on damages.

- 4. Special damages: - Counsel submitted that the law on special damages was stated in 15 Nalwadda Vs Uganda AIDS Commission Civil Suit No.67 of 2011

"A claim for special damages must specifically be pleaded and strictly proved. A plaintiff has the duty to prove their damage. It is not enough to write down particulars, throw them to the Court and say this is what $I$ have lost $I$ ask you to give me those damages. They have to be proved. This does not mean that proof of special damages has to be proved by documentary evidence in all cases."

The evidence which proves special damages is seen by the various movements made by the plaintiffs in their quest for justice. The law on 25 special damages was well stated in the case of *Nalwadda Vs Uganda* AIDS Commission Civil Suit No.67 of 2011 wherein it was held that;

> "A claim for special damages must specifically be pleaded and" $A$ strictly proved. A plaintiff has the duty to prove their damage. It is not enough to write down particulars, throw them to the Court and say this is what $I$ have lost $I$ ask you to give me those damages.

> > $-18$

*They have to be proved. This does not mean that proof of special* damages has to be proved by documentary evidence in all cases."

In respect of the case proof of special damages can be garnered from paragraph 6 of the plaint where it is stated that:

*The plaintiff shall aver that as a result of the defendants'* $6.$ unlawful actions, the plaintiff has lost a source of livelihood and *suffered special damages.*

## *Particulars of special damages*

| <i>Transport to various Police Stations</i> | $2,000,000/=$ | |---------------------------------------------|---------------| | <i>Transport to Kampala 3 times</i> | $750,000/=$ |

*Instruction fees to lawyers* $5,000,000/=$ $C.$

To prove the averment in paragraph 6 of the plaint, PW1 Agama Richard stated under paragraph 43 of his witness statement that:

*THAT I pray that court orders the defendants to compensate* $43.$ us *Ug.* shs 255,110,000 as pleaded in paragraph 5 and 6 of the plaint.

*Particulars of special damages*

$a.$ *Transport and expenses to various Police Stations* $2,000,000/=$

*Transport to Kampala 3 times to instruct and meet* $b.$ *lawyers 750000/=*

$C.$ *Instruction fees to lawyers* $5,000,000/=$

$d$ . **Fees** $\quad\text{for}\quad$ translating the Etop Newspaper and $360,000/=$

*transport thereto (page 4, plaintiffs' additional trial bundle)*

$8,110,000/=$

Additionally, PW2 Ochom Michael under paragraph 49 of his witness statement stated that:

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THAT I pray that court orders the defendants to compensate 49. us Ug. shs 255,110,000 as pleaded in paragraph 5 and 6 of the plaint.

Particulars of special damages

*Transport and expenses to various Police Stations* $\boldsymbol{a}$ . $2,000,000/=$

Transport to Kampala 3 times to instruct and meet $b$ . *lawyers 750000/=*

*Instruction fees to lawyers* $C.$ $5,000,000/=$

$d$ . *Fees* for translating the *Etop* Newspaper and $360,000/=$

*transport thereto (page 4, plaintiffs' additional trial bundle)*

$8,110,000/="$

From the, above, it can be satisfactorily concluded that the claimed amount is not only reasonable but is proved. 20

I would thus award the claimed amount of Ugx. $8,110,000/$ = as special damages.

- 5. A declaration that the defendant's actions of denying the plaintiff to utilize the suit land and destroying his crops infringed on his proprietary and constitutional rights and are unlawful: - 6. A declaration that the defendants have illegally, unlawfully, maliciously, unjustifiably interfered with the plaintiffs' rights ignoring the court orders:

The plaintiffs asked this court to further consider 5 and 6 above which respectively are that this court makes a\_declaration that the defendant's actions of denying the plaintiff to utilize the suit land and destroying his crops infringed on his proprietary and constitutional rights and are unlawful in addition to a\_declaration that the defendants have illegally,

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unlawfully, maliciously, unjustifiably interfered with the plaintiffs' rights 5 ignoring the court orders.

From the foregoing it is clear to this court that the actions of the defendants were unlawful, infringed on the plaintiffs' rights in addition to being in contempt of the Court of Appeal order. Such illegal behaviour cannot be allowed in a democratic and law abiding society. The defendants are thus jointly held liable for not only acting unlawfully in addition to infringing on the rights of the plaintiffs but to being in contempt of court order.

Accordingly, they are found so and for being in contempt of a court order, each is condemned to pay a fine Shs 500,000/= or face six months' imprisonment on default.

7. A permanent Injunction prohibiting the defendants from interfering with the suit land:

Counsel for the plaintiffs submitted that in Akena & Ors versus Opwonya High Court Civil Appeal No. 35 of 2016 (2018), Justice Mubiru stated that.

> "It is settled law that a permanent injunction is a remedy $\mathbf{r}$ for preventing wrongs and preserving rights so that by single exercise of equitable power, an injury is both restrained and repaired, for the purpose of dispensing complete justice between the parties.

> Permanent or final injunctions are granted as a remedy against an infringement or violation which has been proven at trial. Such an injunction will be granted to *prevent ongoing or future infringement or violations."*

Counsel further stated that the defendants who include officials from $\overline{5}$ Atutur sub county, Kumi District Land Board, Kumi District Local Government and Attorney General chambers did threaten to evict the plaintiffs from the suit land which land they were rightly in as per a court order which threat warrants a permanent injunction to prevent ongoing or future infringement or violations of the plaintiff's rights in the suit land 10

as held in Akena & Ors versus Opwonya.

I would agree with that submission and state that as long as the order of the Court of Appeal allowing the plaintiffs to stay on the suit land is not reversed by another competent order, then the desired orders of a permanent injunction should issue and be effected by all and sundry. It is accordingly issued in the terms sought.

8. <u>Punitive Damages:</u>

Punitive damages are generally awarded for high handed, deliberate actions by the defendants which is the case in the instant matter. The plaintiffs prayed for punitive damages of Ug shs. 50,000,000. The acts of the defendants clearly were high handed and ubiquitous. There is need to put to a stop flagrant disobedience of court orders and the culture of wanton destruction of properties based on unjustifiable reasons.

Accordingly, I would award the plaintiffs as against the defendants Ug shs. 5,000,000. (Five million only) as punitive damages. 25

9. $Costs$ :

The general principle under Section 27 (2) of the Civil Procedure **Act** is that costs follow the event and a successful party should not be deprived of costs except for good reasons. The plaintiffs are the successful parties here and there has been shown no reason as to why they should forgo the costs. Accordingly, Costs of this suit is awarded to them.

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## Conclusion: $\mathsf{S}$

From the foregoing, I am satisfied that the plaintiffs have proved their case as against the defendants on a balance of probabilities, accordingly, judgment is entered in their favour with orders as below.

## Orders:

- 10 - a) The defendants are accordingly found jointly liable for destruction and damage caused on the plaintiffs' property. - b) The defendants' action of denying and stopping the plaintiffs from utilising the suit land is hereby declared to be unlawful. - c) The defendants are found jointly liable for destruction and damage caused on the plaintiffs' property. - d) By failing to follow a persisting court order, the defendants not only denied the plaintiffs the right to utilise the suit land but are also found to be in contempt of a court order.

e) For destroying the properties of the plaintiffs, the defendants are jointly condemned to pay compensation for the destroyed houses, crops and gardens in the total amount of Shs. 16 million.

- f) This Honourable Court also award each of the plaintiff the sum of Ugx. 5,000,000 as general damages at an interest rate of 18% per annum from the date of this judgment. - g) This court further awards the claimed amount of Ugx. $8,110,000/$ = as special damages. - h) For being in contempt of a court order, each of the defendant is condemned to pay a fine Shs 500,000/= or face six months' imprisonment on default.

i) It is further declared that so long as the order of the Court of Appeal allowing the plaintiffs to stay on the suit land is not reversed or

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- altered then a permanent injunction is hereby issued in the terms sought. - j) This Honourable Court additionally award to the plaintiffs the amount Uganda Shillings Five million only (Ug Shs. 5,000,000) as punitive damages. - 10

$\overline{5}$

- k) The awards in (e), (g) and (j) above each to carry an interest of $18\%$ per annum from the date of this judgment till payment in full. - l) The costs of this suit is awarded to the plaintiffs in any event.

I so order.

Hon. Justice Dr Henry Peter Adonyo

Judge

17<sup>th</sup> August 2022

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