Besimire Darias v Kakama Francis (HCT - 05 - CV - CA - 0025 - 2012) [2015] UGHC 22 (24 August 2015)

### THE REPUBLIC OF UGANDA

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### IN THE HIGH COURT OF UGANDA AT MBARARA

# HCT - <sup>05</sup> - CV - CA - <sup>0025</sup> - <sup>2012</sup>

BESIMIRE DARIAS APPELLANT

*VERSUS*

KAKAMA FRANCIS RESPONDENT *(jj*

**BEFORE:** HON JUSTICE DUNCAN GASWAGA

## **JUDGMENT**

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[1] This appeal arises from the judgment, decree and orders of His Worship Borore Julius, Magistrate Gradel at Mbarara delivered on 16th June, 2010 and it sets forth the following grounds';

- *1. The trial magistrate erred to have held that',* . *the dispute related to a foot path and not a motorable road.* - *2. The trial magistrate erred in law and evidence when he awarded the respondent UGX 200,000/= and UGX 1,000,000/= as special and general damages respectively.*

[2] Wherefore the appellant prays that this Honourable Court sets aside the Lower Court's judgment and decree with costs.

#### Brief Facts

[3] The appellant who was the defendant in Civil Suit No. 0188 of 2002, **\** together with, two others was sued by the respondent / plaintiff for allegedly encroaching on his land and maliciously damaging his

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property that is plantations, maize, peas, cassava, a fence and shed house. This allegedly happened when the defendants and the local authorities were re-opening a motorable road adjacent to the respondent *I* plaintiff's land which had long been apparently blocked by the said respondent.

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[4] judgment was passed against the appellant / defendant, with the following orders;

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- 1) The path in question is a public foot path and ought to remain so unless lawfully converted - 2) The plaintiff is awarded special damages of UGX 200,000/= as compensation for his damaged fence and crops - 3) The Plaintiff is awarded UGX 1,000,000/= as general damages - 4) The Plaintiff is awarded interest on (2) & (3) above at 20% per annum from date of judgement until full payment.

5) Each party shall foot its own costs of litigation *l\_,/U*

- *)* [5] The appellant *I* defendant being dissatisfied by the orders of the learned trial magistrate therefore instituted this appeal. The appellant was represented by M/s Bwatota Bashonga & Co. Advocates while - the respondent was represented by M/s Kwesiga - Bateyo & Co. Advocates. - [6] Unfortunately, the original Court file was misplaced in 2012 and a duplicate case file was 'constructed. So mgsi\_QfJhe exhibits are riot present on the file for reference purposes and re-evaluation as is the

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duty of the 1st appellate Court. The first appellate Court has got the duty to re-appraise, re-evaluate the evidence as a whole as adduced in the lower Court, subject it to fresh and exhaustive scrutiny and draw its own inference of fact except for the impression of demeanour of witnesses See: D. R Pandya Vs R (1957) E. A pg 286, Kifamunte Henry Vs Uganda Supreme Court Criminal Appeal No. 10 of 1997 and Bogere Moses and Anor Vs Uganda Supreme Court Criminal Appeal No.1 of 1997. Therefore, <sup>I</sup> shall keep that duty in mind when considering the grounds of appeal in the instant case. <sup>I</sup> will now proceed to handle the grounds of appeal as raised by Counsel forjhe AjDgellarjt.

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#### Ground <sup>1</sup>

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[7] The trial Magistrate erred to have held that the dispute related to a foot path and not a Motorable road. Counsel for the Appellant submitted that the trial magistrate erred to have found that the dispute related to a public foot path and not a motorable road because he ignored the defence evidence and witnesses. Such evidence includes the testimony of DW1, Besiimire Darias who stated that by 1986 the motorable road was in existence, the evidence of the Chief Administrative Officer's (CAO) letter dated 25th July, 2001 instructing for the reopening of the road, the Officer in Charge Criminal Investigations Department's (OCCID) report dated 5th September, 2001to the CAO of Ntungamo District on the existence of the road, evidence of DW2, the LC1 Chairman of the area, Exhibit DX1a letter dated 6th February, 2007 which yvas instructing the local leaders to reopen the road.

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[8] DW2's evidence to the effect that the road was opened way back in 1986 before the respondent / plaintiff came to the land, DW3, <sup>a</sup> former Parish Chief of the area in 2000 who stated that there was a road that was blocked by the respondent and therefore the instructions from the Sub County Chief was to the effect that they reopen the said road. There is also the report from CAO tendered as exhibit DX4 which reaffirmed that the road was in existence. According toCounsel for the appellant, the trial Court did not consider this evidence as well.

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In reply, Counsel for the respondent /plaintiff insisted that there was no evidence on record whatsoever indicating that there was a motorable road leading from Kyempene through the respondent's land before the interference and destruction of his property. He also asserted that the learned trial magistrate was justified to ignore the defence evidence. As earlier stated, the Court record is duplicate in nature and so this Honourable Court will not have the opportunity to review the physical defence exhibits as elucidated herein above but will entirely rely on the testimonies of both the plaintiff and defence witnesses during the re-evaluation of evidence. PW1 at pg 9 of the Court record states that he settled in Rugarama, Gabulira, Kakongi, Rusheyi Ntungamo in 1992 and insists that at the time he took possession of the land, the motorable road was not there, it was just a foot path. The other witnesses, that is PW2 and PW3 do not clearly state when the plaintiff actually occupied the said land.

[10] On the other hand, a number of defence Witnesses testified that the motorable road existed since 1986. DW1, Darias Besimire stated that

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the road existed before as far back as 1986, that by the time of his birth, it was in existence. DW2 also states at page 16 that the road in question comes from Ndoragyi ceil to Kakamba II cell and it was constructed in 1986 by the residents of Kabure and Kakamba II cells. That by that time the plaintiff had not settled in the area. DW2 also stresses that the plaintiff acquired land jn the area in 2000 and around 20QJ the Parish Chief summoned the residents of the area to do "Burungi Bwansi" (Self help project) to expand and reopen roads in the area. That following that directive, on 13/08/2001 DW1 and the cell residents re-opened the road in issue.

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- [11] Further still, DW3 stated that he was posted to Kagongi parish as parish^chief in 2000 and on 3/08/2001 he received a letter from the sub-county chief instructing him to open up the Gabulira Catholic church-Kagongi feeder road allegedly closed by the folaintiff. He testified that following the instruction, he gathered the Gabulira community and they dug up the road in execution of orders of the superiors. From his testimony it is clear that the road was in existence but it was just blocked. He also testified at pg 20 that he convened a meeting on 25th April, 2003 which was attended by district leaders of Ntungamo i.e. Deputy RDC, DPC, CID chief, ACAO and the meeting resolved and affirmed the existence of the road (feeder) which the plaintiff had blocked. - [12] In my opinion the witnesses, especially DW 2 and DW3's testimonies were very credible since they are local leaders and DW2 was even <sup>1</sup> present when the feeder road was designated back in 1986. <sup>I</sup> shall not consider the documents ejhjbjted since <sup>I</sup> have not got the

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opportunity to look at them. It ought to be noted that from the testimonies the plaintiff took possession of the land way after the motorable road was designated but blocked it and only a footpath remained. The authorities concerned were therefore charged with the responsibility of re-opening it.

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- [13] If the learned magistrate had considered the evidence above, then he would have discovered that the demised land was originally a motorable road that was also a public passage way since 1986, way before the plaintiff took up possession of his land that is adjacent to the one in question. - [14] Therefore, the plaintiff's predecessors in title held the said land subject to this easement. This implies that even the plaintiff acquired the land from them subject to the said easement though he could have not known about it or simply ignored it. This trend of events was clearly illustrated in the case of NGAMBO ESTATE AND SAW MILLS LTD V SIKH SAW MILLS (TANGANYIKA) LTD [19571EA 537 where COUrt held that long and uninterrupted public use of the road of which the owner was aware' would be taken that the owner was aware that he or she had dedicated the road to the public and could not turn around and close it.

[15] It should have been prudent that the respondent respects the decision of his predecessor in title by keeping the road in question open. Unfortunately, at page 3 of the Judgment of the learned trial magistrate, he stated as follows:

**6** "... Most important, there is no evidence on record submitted by defendants that vehicles continuously used the path in question prior to 2001. The plaintiff mentioned that what existed and was in use was a public footpath. <sup>I</sup> am more inclined to believe plaintiff's version of the story and evidence that the road was a mere village public path not motorable"

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[16] Clearly, from the extracts of the defence witnesses above, the defence adduced evidence to prove that the public passageway was in place as far back as 1986 and was not part of the plaintiff *I* respondent's land. It is of no consequence whether vehicles passed there or not. But that notwithstanding, It is also on the record of Court from the evidence of DW3 at page 20 that upon the authorization of Ntungamo Local Government, the district engineer had once taken a grader and cleared / levelled the road but the plaintiff did not file any ; complaint against this then. From that piece of evidence it appears that the road was not only being used at that time but that it was also motorable.

[17] As a Court of first instance, in the course of administration of justice, a trial magistrate is expected to thoroughly evaluate the evidence adduced by both parties to the suit, and arrive at a just decision based on the balance of probabilities. This does not seem to be the case when one reads the lower court record. The above notwithstanding, it ought to be noted that Section 49 of the Local Governments Act Cap 243 gives local council at the parish level <sup>a</sup> duty to mobilise people to' engage in self help projects (such as \ Bulungi Bwansi in the instant case). It is a fact that the appellant was

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performing the above duties when the alleged destruction of property happened. He also testified that he had been summoned like any other person in the village for the road clearing exercise.

[18] In light of the preceding arguments therefore, <sup>I</sup> find that there had been a motorable path on the demised land that was used by the public as far back as 1986. This easement ought to have been enjoyed even way after the plaintiff bought or acquired the land. The local authorities that instructed the residents to collectively clear and re-open the said road were acting lawfully and cannot be said to have trespassed on it. The residents, such as the appellant *I* defendant, cannot be said to have trespassed as well. If anything, it was the plaintiff / respondent who was encroaching on public Jand. For the above reasons therefore, it is clear that the dispute related to a motorable road and not a mere footpath. As thus ground one of appeal should be allowed.

## **Ground 2**

- [19] The trial magistrate erred in law and evidence when he awarded the respondent UGX 200,000/= and UGX 1,000,000/= as special and general damages respectively. - *\ I* [20] Learned Counsel for the appellant submitted that the learned magistrate erred in law and evidence when he granted the respondent special and general damages. At page 3 and 4 of his judgment, the learned trial magistrate adjudged that the plaintiff had adduced ample evidence to show that the defendants in cohorts with many others committed trespass on the plaintiff's land. That given the

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fact that the plaintiff was involved in agricultural mixed farming, it is not farfetched to conclude that his land was fenced and that it reasonably follows that the road expansion exercise earned out by the defendants and others resulted in destruction of the plaintiff's fence and crops.

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[21] The findings of the learned trial magistrate as stated above are based on conjecture and fanciful theories and not on hard evidence as legally required See: Okethi Vs R (1955) 555, He simply concludes, without empirical evidence being adduced, that the land was fenced basically because it was used for agricultural mixed farming and also concludes that definitely the plaintiff's fence and crops were destroyed by the defendants. No basis upon which this conclusion was arrived at is given by the trial magistrate save for the testimony of PW1 who was absent on the day the road in question was reopened, that of PW2 his daughter and PW3 alongside the defence evidence that this was a public motorable way that was in existence since 1986 but was blocked by the plaintiff and also the assertion that neither of the plaintiff's property was destroyed.

[22] Since all the defence witnesses repeatedly testified that during the process of road expansion and re-ojoening, the plaintiff's property was not destroyed at all including his fence which was far from the said road, as they only dug up grass and shrubs, the trial magistrate ought to have visited the locus t<sup>o</sup> ascertain and clarify this discrepancy before making a decision regarding destruction of the property in question. This was the intention in the case of Alice Janet Namisanqo Vs Chrisestom Galiwango [1986] HCB 37 at 38 where the learned trial Judge made a comment to tkje effect that a visit to

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the locus in quo is intended to enable the Court to understand a follow the evidence adduced by the parties with regard to tl disputed boundary or other subject matter.

[23] Additionally, the learned trial Magistrate held at page 4 as follows;

"It is trite law that special damages must be specifically pleaded and proved. In the instant case the plaintiff did not produce any documentary or expert evidence to quantify the damage to his destroyed fence and crops. Nevertheless, a finding of fact has been made that the plaintiff's fence was destroyed including crops. <sup>I</sup> shall assess and put a figure of shs. 200,000/= as the quantifiable loss suffered by plaintiff due to destruction of his fence and crops."

[24] Its the position of the law that special damages cannot be recovered^<sup>5</sup> unless they have been specifically claimed and proved or unless the best available particulars or details have before trial been communicated to the party against whom it is claimed. See: Uganda Telecom Ltd Vs Tanzanite Corporation Supreme Court Civil Appeal No. 17 of 2004,

[25] In the instant case, the plaintiff / respondent did not specifically plead for or adduce evidence to prove special damages and the magistrate also addressed himself to this principle but it is absurd that he did not implement it as legally required. It was therefore not in order for the learned magistrate to award such damages in absence of their^oof. In essence therefore, the special damages granted by the learned trial magistrate ought to be nullified or set aside.

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[26] The learned magistrate also awarded general damages of UGX 1,000,000/= to which counsel for the appellant objected. Court has discretion to grant general damages and the appellant Court cannot interfere with such discretion unless it is in the interest of justice to do it.

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[27] In the current circumstances however, since it has been found that the demised land was public land which was meant to be under the responsibility of the local authorities, in digging and re-opening it, they were not trespassing in any way. If indeed the plaintiffs property was destroyed it was justified since it was within land that did not belong to him. In that vein therefore, the plaintiff was not entitled to the general damages as well. In essence therefore, this ground ought to be upheld as well.

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[28] In conclusion therefore, the lower Court Judgment is hereby set aside together with the accompanying orders. The appeal is allowed with costs.

## I SO ORDER

**Delivered in open court on this . day of 2015**

> ... *Jtty.* **Duncan Gaswaga JUDGE**

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