Byanyima v Attorney General (Civil Appeal 69 of 2011) [2002] UGCA 10 (9 September 2002)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

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## CORAM: HON. LADY JUSTICE A. E. N. MPAGI-BAHIGEINE, JA HON. MR. JUSTICE A. TWINOMUJUNI, JA HON. LADY JUSTICE C. N. B. KITUMBA, JA

### CIVIL APPEAL NO. 69 OF 2001

#### BONIFACE BYANYIMA :::::::::::::::::::::::::::::::::::: APPELLANT $10$ **VERSUS**

ATTORNEY GENERAL :::::::::::::::::::::::::::::::::::: RESPONDENT

[Appeal from the judgement of the High Court of Uganda held at Kampala (Mukiibi J) dated 6th November, 2000 in HCCS No. 359 of 1996]

### JUDGMENT OF KITUMBA, JA

This is a partial appeal from the decision of the High Court whereby the appellant was awarded special damages of twelve million shillings $(12,000,000/=)$ , general damages amounting to thirty million shillings (30,000,000) for unlawful occupation of his ranch and costs of the suit.

The following are the facts that led to this appeal. The appellant is the registered proprietor of land comprised in leasehold volume 1189 Folio 25 Plot 2, Nyabusozi Block 109 Ankole measuring an area of 1548.4 hectares. It is also known as Ranch No.6. It is a

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lease for 49 years from the 1't October 1981. The appellant acquiretl the ranch way back in 1958. By 1990 it was well develope'c1. There were rro squatters on the ranch. According to the 1988 government cattle census the appellant had on his ranch, 1239 hc.acls of cattle of Fresiarr, Boran antl Ankole cross-breecls. There were well maintained valley tanks, a dip tank, a spray race, improvc,cl pasture and night Lromas.

Sometime irr 1990 some pcople, who were unknown to the appellant, forced their wav on to his ranch. They destroyed his fence ancl other structures. TIre appellant reported to the police ancl othc'r government authorities. He appealed to the go\,€'rnn1er1t to help hinr to cl'rase away tl-re inh'uclers fronr his ranch. 'l-he goveuulent rl it'l rrot assist hinr. He was instc'acl requesterl trr,, the govenrnlent to surrender part of his ranch for use by tl're squatters. The ranch was to be managed by a committee of which he was appointed as the advisor. He declined the post of advisor. Tl're appellant brought the suit agairrst the respondent ir.r its representative capacitv anrl 4 others. He believecl that squatters har-l been brought on his ranch by the government. He prayed court to order the evictiorr of the squatters from his ranch, award special c{amages and general damages and costs of the suit. Special darnages were pleaded in paragraph 7 of the plaint as fol lou,s: l0 l0

"7. As a result of the above action of the government and the trespassers the plaintiff has suffered great loss and damage.

# PARTICULARS OF SPECIAL DAMAGES

| (a) | Destruction of fence | $15,000,000/-$ | |-------|----------------------------------------|--------------------------------------| | (b) | Loss of cattle | $225,000,000/=$ | | $(c)$ | Destruction of valley dams | $12,000,000/=$ | | $(d)$ | Destruction of dip tank | $4,500,000/=$ | | (e) | Destruction of other structures | $4,000,000/=$ | | $(f)$ | Loss of income from the ranch | $450,000,000/=$ | | $(g)$ | Interest on bank loan | $20,000,000/=$ | | | Total | $730,500,000/="$ | | | | * **** **** **** **** **** **** **** |

The following issues were framed at the trial:-

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"1. Whether the $2^{nd}$ , $3^{rd}$ , $4^{th}$ and $5^{th}$ defendants occupy the plaintiffs ranch.

- Whether the $1st$ defendant is responsible for the damage and $2.$ *destruction to the plaintiff property if it occurred.* - 3. *Remedies available to the plaintiff.*"

The learned trial judge found that the respondent had authorised $20$ the third, the fourth and the fifth defendants to occupy the appellant's ranch. The second defendant was an invitee of the appellant. He answered the first issue in the affirmative.

Regarding the second issue the learned trial judge found that the respondent was responsible for the destruction of the appellant property. In answer to the third issue the judge made following orders.

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- " (a) That the 3'd and 5th vacate the appellant's land. - (b) Declared the appellant the rightful owner of land and property comprised in leasehold register volume 1189 Folio 25 PIot 2 Nyabushozi Block 109 Ankole Ranch No.6 - A permanent injunction against the 3'd and 5rh defendants from trespassing on the appellant's land comprised in ranch No. 6. (c) - Special damages of twelve million shillings (12,000,000/=) for the destruction of three valley dams. (.1) - General damages of thirty million shillings (30,000,000/=) for unlawful occupation of Ranch No. 6 and costs of the suit. " o l() (")

Dissatisfir'rl rvith the amoulrt of general clamagr:s au,ardecl ancl tl're refusal bv tl.re jucige to grar"rt all items of special clanrages as pravecl for, the appellant filed this appeal on two grourrcls narnely:

" 7. That tlrc leanrcd trial judge erred in lazu atd in fact zLrlrerr after eaaluating tlrc eaidence he held tlmt special dnnnges lmd not beert ulrolly prooecl as plcaded.

Tlrc lcnnred trial judge erued in lazo and in fact u,lrerr lrc autardcd gerreral danmges tlnt zuere inordirrately low aud failirrg to takc accourtt of tlte particular ciramrstances of tlrc casc". 2

During thc hearing of the appeal the appellant's learned counsel abandoned the claim of special damages for destruction of the dip

tank ancl ilrterest on the bank loan. Regarding special clamages for the destruction of the perimeter fellce Mr. Kenrreth Kakuru, learnecl counsel for the appellant, contended that tlre h'ial judge was right to holc'l that from the' evidence available it l-rad beer-r establishecl that three valley clams, a perimeter fc'rrce, fences for bomas and pasture had been destroyed or damagecl at the rancl-t No. 6. Counsel reasoned that as the learned trial judge had based his award of special damages to the appeliant for the destructiou of his vallel, dams on Dr. Menge's (PW3) evidence, or1 the ground tlrat he l^ras ,,r(),1r tccluicnl tlnrr tlu, appellartt, he should have treatecl the appellant's claim for special clamages for the dt:struction of tl.re perimeter fr.nce ir.r the same malller. In support of his submissiorr he reliecl orr Christopher Kiqgundu & Another Vs Uganda Transport Co. (1975) Ltd. Supreme Court Civil Appeal No. 7 of 1993 (unreported) in n,hich Nlar.rl'incio DCJ, as he theu was, helcl that the medical doctor was the best person to classify the injuries and not the appellant who was a layman

Mr. Matsiko, learned Senior State Attorney for the respondent, supportecl the learned trial judge's clecision. He submitted that the appellant had not, as required by law, specifically pleaded and strictly provecl the s;recial damages in respect of the perimeter fence.

In his juclgment the learnecl trial judge l-relcl that the appellant hacl failed to provr' special damages for destructiorr of the fence because his eviclence and the pleadings did not agree. In his plaint

he had pleaded for special damages for destruction of the fence as Shs. $15,000,000/$ =. When he gave evidence he put the cost of the repair at Shs. $500,000,000/$ =. On the other hand Dr. Menge Steven (PW3) had put the cost of repair of the fence at Shs. $16,000,000/$ =

It is appreciated that the perimeter fence was destroyed and learned trial judge rightly found so. However, the evidence, which the court received from two witnesses regarding the cost of its repair, was contradictory. Besides, the evidence was at variance with the pleadings. The learned trial judge based his award of special damages for the valley dams on Dr. Menge's evidence because he was *more technical than the appellant*. Dr. Menge's evidence was the only evidence on the cost of that item and it did not vary from the pleadings. The judge was justified, therefore, to base his award on it. The authority of **Christopher Kiggundu and** Another V Uganda Transport Company Ltd. (supra) is distinguishable from the present appeal. In that case the doctor's evidence of the description of the injury sustained by the appellant was preferred to that of the appellant who was a layman. The appellant did not specifically say that he had a fractured femur. He merely mentioned that he had an injury on the right leg. That was not a contradiction as is the case in the instant appeal. I am in agreement with the trial judge that the appellant failed to strictly prove special damages for the destruction of the perimeter fence.

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I now turn to special damages for destruction of other structures pleaded in paragraph 7(e) of the plaint. The appellant's learned

counsel contended that there is a difference in a case wltere one pleacls for the cost of repair after completion of the repair. He arguecl that after repair one knows the exact arnount spent but trefore re'pair the clairn is an estimate. He ir-nplored this court to accept tlre sum of shitlings 4,960,000/= testified by Dr. Merrge and award it to the appellar-rt. Learned Senior State Attornev, for the resl-ron1ls11, supported the trial judge's findirrg. He submitteci that the claim was too general.

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I note that there is ample evidence on record from botl.r the appellant and the respondeut's wihresscs that the appellant's farm n,as well developecl. There were structures on it like workers' lrouses, the appellant's house and night bomas. Wlren the ap1.rel131.,1 pleac'lcrl other sh'uctures that u,r.ts rlot specific l-rlcariing. L.r my view that pleading was without sufficierrt particularity. I am unable to fault the learned trial judge on his findirrg that tl-re pleac'ling was too general. Besides I am of the considerec-l view that it would not be right to award the appellant Shs. 4,960,000/=. This is at variarrce with his pleadings for clestruction of structures as 4,000,000/= l0 a0

Regarding loss of cattle, which is in paragraph 7(b) of the plaint the appellant's learned counsel criticised the trial judge for failing to arvarcl the ap1'rellant the special clamages as pleadecl. In counsel's view, tl're appellant had provecl the loss of cattle by evic.lence called by his side. He was of the opinion that the

evidence adduced by the respondent supported his claim. It is therefore imperative to re-evaluate the evidence otr this matter.

Tl.re respondent's eviclence whiclr learned counsel corrsider to su1-rport the appellant's case is from Dr. Cl.rarles Musinguzi, DW3, Dr. lolrn Lewis Barigye, DW4, ancl Dr. Gcorge Williarn Cumusi DW6. According to the testimonies of all these wihresses, towards the encl of 1.990, there was an outbreak of CBPP iu Mbarara Rarrching Scheme. They all agree that this is a serious decease with rro cure. The only protection is to prevent the disease from spreadirrg. This is done by restrictirrg the movement of animals and vaccinating them. The farmers are advised to sell the cattle, which are affected. However, there was rro outbreak of CBPP at thc. appellant's ranch. Like the learned trial judge, I finrl that the rc.spondent's evidence outlined above c'loes not support the appellant's case.

The eviclence which was adducecl by the appellarrt regarcling loss of cattle was b), himself, Dr. Menge (PW3) and Gertrude Bvanyir-rra, PW4. In his testimonv the appellant's eviclencc. was to tlre effect that his improved pasture w,as cleskoyecl. The grass on the ranch was not enough to feed his cows and those of the intruders. Since July, 1990 he l-racl lost 1005 cows. The cause of c'leath was starvation and diseases brought on his ranch by intruders'cows. The value of the 1005 cows was 400,000,000/=

( o Dr. Menge testified that in 1990 the appellant lost about 600 cows due to Contiguous Bovine Pleurope Monia (CBPP) which was brought by the new animals. He also attributed the cleaths to ticks from the uew animals anc-l to starvation. The witness gave the costs of anir"rrals of different breecls, He said that Ankole was about 400,000/=, Boran 600,000/= and Fresian was between 700,000/ = arrd 1,000,000/=

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Mrs. Bvanvirna's evidence u,as that in 1990 the aprpellant lost about 600 or 700 animals and by the time the case was filec'l he had lost 1050 con,s. The animals died because of ticks and tliseases brought in bv thc ncrv animals. Accorc.ling to her, the appcllant, had Borarr ancl Fresian lrreccls and dicl not have Ankole cattlc,.

In his juclgment the learnetl trial judge found that the figure of lost cattle pleac{ecl in paragraph 4(e) of the plaint was at variance with the appc'llarrt's testimony. He also found that the appellant and his tr,r,o r,t,itnesses' testimonies differecl as to the number of cattle lost. The appellant hacl pleadt,tl for 225,000,000/: for loss of but in evidence claimec.l Shs. 400,000,000 / :.

The jucige preferred the e.viclerrce of the responclent's witness to that of thc' apprellar.rt. He found as a fact that there was no outbreak of CBPP on Ranch No. 6. He believed exhibit D4 the monthly cattle census reports in respect of Ranch No. 6. The reports did not show a big loss of cattle by the appellant at any one time. I am, therefore, in agreement with the trial judge that the appellant failecl to strictly prove special danrages for the loss of cattle.

I now turn to the loss of income from the ranch pleaded in 7(f) which is closely linked to the loss of cattle.

Learned counsel for the appellant submitted that the trial judge was wr()nEl not to allow tlre appellant's claim for special damages amountirrg to sl'rillings 450,000,000/=. Counsc'l argueci that the appellant hatl testified before court that he used to get a montl.rlv incomt: of shillings 9 milliorr from the ranch. The trial judge clicl disallow t^is claim because it was not slrictlv provt'c1.

It is noterl that the appellant did not testify before court hou, he got the irrcome. Therc were no ranch account trooks p'rroducetl. The learned trial judge carulot be faulted for rejecting this claim. Grourrd one would, therefore, fail.

In srounri two the appellarrt's complaint is that thc'award of thirtl, millior.r shillings (30,000,000/=) as general damages w,as irrordirrately lorv. Appellar-rt's Iearnecl counsel contended tl-rat h'espass is actionatrle perse without proof of arry loss. He argued that the trespass by the respondent on the appellant's land hacl continued for over tell years. The respondent was duty bound to protect people's propcrties. When the appellant reported to respouclent's agents that intruders had invacled his ranch rrothing was clone. He submitted that if all the circumstances had been l0

taken into account the general damages awarded should have been higher that thirty million shillings. Counsel suggested that a sum of shillings one hundred and fifty million would be adequate. Learned Senior State Attorney for the respondent, submitted that the award of general damages of thirty million shillings was adequate. He stated that it is trite law that the appellate would only interfere with the award of general damages where the amount awarded is inordinately low. In support of his submission he relied on Matiya Byabalema & Others V Uganda Transport Company (1975) Ltd. Supreme Court Civil Appeal No. 10 of 1993 (unreported).

I respectfully agree with the statement of law stated in the above case in the leading judgment of Odoki Ag. DCJ, as he then was. At p.4 he stated thus:

"It is now a well settled principle that an appellate court may only interfere with an award of damages when it is so ordinately high or low as to represent an entirely It must be shown that the judge erroneous estimate. proceeded principle that he $on$ wrong $\overline{or}$ $\overline{a}$ misapprehended the evidence in some material respect, and so arrived at a figure, which was either inordinately high or low. This principle was stated by the Court of Appeal for Eastern Africa in Henry H. Ilanga V. Manyoka (1961) EA 705 where the Court quoted with approval the decision of the Privy Council in Nance V. British

Columbia Electric Railway lCq. Ltd. 11951) A. C. 601 at Page 513 to this effect:

"The principles which apply under this head are not in doubt. Whether the assessment of dan'rages be by a juclge or jury, the appellate court is not justified in substituting a figure of its own for that awarded below simply because it would have awarded a different figure if it had tried the case at first instance. Even if the tribunal of first instance was a Judge sitting alone, then before the appellate Court carl properly intervene, it must be satisfied either that the judge in assessing the damages applied a wrorlg principle of larv (as by taking into account some irrelevant factor or leaving out of account some irrelevant factor or Ieaving out of accoullt some relevant one) or short of this that the amount awarded is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage: Flint V. Lovel (1935) 1 KB 354 approved by the House of Lords in Davies V. fowett Puffyrum Ass (1842) A. C. 601"

Christine Nazziwa Civil Appeal No. 5 of 1981 (unreported). " These principles were re-affirmed by the predecessor to this Court in the case of Associated Architects v.

In his judgmetrt the learned trial judge statecl that general damages are compensatory. The person injured must receive a sum of nroney that would put him as good but neither better nor worse position before the wrong was committed. The judge considered thc appellarrt's evidence when he was assaulted by the respondent's agents. He held that the appe.llant was not entitled to arrv clanrages for that because the incident took place on 72/1,7 /90 arrcl was, therefore, barrecl by lirnitation. I agree with him on that poirrt.

Tlren the judge awarded the appellarrt general damages of shillings 30,000,000/= for trespass on the rar.rch that lastec-l for ten t,ears. \{itlr due respect, the sum awarelerl rt,as irrordinately low. Thotrgh he took into account the period of the ten Vears trespass he rlicl uot corrsider the area of the ranclr which measures 1548.4 hectares. He did not consider the inconvenierrce caused to the ap;reilant. The appellant reported the trespass to many government officials including the Presitlent of this country. This was done on several occasiorrs. However, rrothing was dorre to remedy the situatiorr. The appellant u,as forced to file the suit against the responderrt. This ground of appeal would succeed. I woulcl awarc-l the appellant general c{arnages of shilling one l-rurrclred fifty million (l 50,000,000/:).

In the result I woulci allow this appeal with costs in this court and below.

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Dated at Kampala this....................................

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CALS: Citanse C. N. B. KITUMBA, JUSTICE OF APPEAL

### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT **KAMPALA**

## CORAM: HON. JUSTICE A. E. N. MPAGI-BAHIGEINE, JA HON. JUSTICE A. TWINOMUJUNI, JA HON. JUSTICE C. N. B. KITUMBA, JA

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## CIVIL APPEAL NO. 69 OF 2001

#### BONIFACE BYANYIMA ::::::::::::::::: APPELLANT

#### **VERSUS**

#### ATTORNEY GENERAL :::::::::::::::::: **RESPONDENT**

**Appeal from the Judgement of the High** Court of Uganda at Kampala delivered by (Moses Mukiibi) in HCCS No.359/1966 on the 6th November 2000l.

#### JUDGEMENT OF A. E. N. MPAGI-BAHIGEINE, JA

I have read in draft the judgement of Kitumba J. A and agree that this appeal should partially succeed.

Concerning the issue of special damages, it is clear that there was significant variance between the evidence of the appellant and that of his witnesses. The learned Judge was therefore correct to reject it.

As regards the claim for general damages, the figure of $30,000,000/=$ awarded by the learned Judge was inordinately too low, having accepted that the appellant had a valid claim for unlawful occupation

I agree with Kitumba J. A that the figure of of his ranch. Shs.150,000,000/ $=$ would be adequate compensation under the circumstances, especially as it was the figure suggested by Mr. Kenneth Kakuru, learned counsel for the appellant.

As Twinomujuni, J. A agrees, this appeal succeeds only to the extent of Shs. 150,000,000/ $=$ awarded as general damages with costs here and below as proposed by Kitumba J. A.

Dated at Kampala this 9th day of September 2002 $10$

A. E. N. Mpagi-Bahigeine JUSTICE OF APPEAL

#### THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

CORAM: HON. LADY JUSTICE A. E. N. MPAGI-BAHIGEINE, J. A. HON. MR. JUSTICE A. TWINOMUJUNI, J. A. HON. LADY JUSTICE C. N. B. KITUMBA, J. A.

#### CIVIL APPEAL NO. 69 OF 2001

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BONIFACE BYANYIMA....................................

#### **VERSUS**

ATTORNEY GENERAL....................................

[Appeal from the judgment of the High Court of Uganda held at Kampala (Mukiibi J. A) dated 6th November, 2000 in HCCS No. 359 of 1996]

#### JUDGMENT OF TWINOMUJUNI, J. A.

I have had the benefit of reading in draft, the judgment of my Lord, Hon. Lady Justice C. N. B. Kitumba, J. A. I agree with it. I hold the same view that an award of Shs. $30,000,000/=$ as general damages is still too low to be able to put the appellant,

"in as good but neither better nor worse position than before the wrong was committed."

The learned trial judge found as fact that:-

"I find that on the evidence available, which I do believe, it has been established that three valley dams, a perimeter fence, fences for bomas and pasture were destroyed or damaged at the said ranch No. 6. I find as a fact that the damage to the plaintiffs said property at the ranch occurred sometime after the 3rd, 4th and 5th defendants had entered the ranch with their cattle. I Iind that those defendants were responsible for the said damage to the plaintiffs property. It was my view that the government, and hence the frrst defendant, authorised the 3,d, 4th and Sth defendants to occupy the said Ranch No. 6. I therefore, hold that the first defendant is vicariously liable for the said damage to the plaintiffs property at Ranch No. 6."

Almost all appellants' claim for special damages in respect of these items were disallou,ed on the grounds that his evidence was at variance with his claims as specified in the plaint. The learned trial judge u,as in no doubt, however, that extensive damage to the appellant's farm was done and the damage u,as still continuing at the time of judgment. The farm in question is 1548.4 hectares. That is about 6 square miles or 16 square kilometres. The evidence on record is that it was a modern farm with vyell-developed structures. It was forcefully occupied and at the time of judgment, the trespassers had used it for over 1 0 years. In my judgment the appellant deserves substantial damages in order to be put in the position he would have been in had the trespass not occurred. I support an award of general damages of Shs. 150,000,000/=.

t-Dated at Kampala this J^,/\*o,r,\* ' r"'" da1'of ' "'- oo2.

{c,t ) o CEO PEAL

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