Kashwahiri and Another v Kajungu (Civil Appeal No. 85 of 2011) [2014] UGCA 140 (18 February 2014)

Full Case Text

### THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA

### AT KAMPALA

### CIVIL APPEAL NO. 85 OF 2011

[Arising from the High Court civil Appeal NO. 0041 of 2010]

#### 1. TAKIYA KASHWAHIRI 2. NAKABUGO CONSTANCE::: **:::::APPELLANTS**

#### **VERSUS**

**KAJUNGU DENIS:::::** $::: {\rm RESPONDENT}$

Coram: Hon. Justice A. S. Nshimye, JA. Hon. Justice M. S. Arach Amoko, JA. Hon. Justice Remmy Kasule, JA.

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#### JUDGMENT OF COURT

This is a second appeal. The first appeal was to the High Court Mbarara against the decision of the Magistrate Grade I's Court Mbarara, who decided the case in favour of the then 1st defendant, now 1st appellant against the then plaintiff, now respondent.

On appeal by the then plaintiff, the High court reversed the decision of the Grade I Magistrate, hence this appeal by the then first defendant.

At trial before the Grade I Magistrate the hearing of the case proceeded ex-parte against the 2nd defendant, now stated to. be 2nd appellant,: who had been served with court summons and the plaint but never filed a defence or attended court for the hearing. The appeal to this court, against the judgment in appeal of the High court, Mbarara dated 10.03.2011 is only by the.. lst appellant , . Takiya t " Kashwairi against the respondent, Kajungu Denis.

## Background of this Appeal.

In 2007, the respondent instituted *Civil Suit No. 0352 of 2007* in the Chief Magistrates' Court at Mbarara, claiming [that the appellants had trespassed on his land located at Kashenyi, Kyera, Birere, Isingiro District.

Jhe respondent stated that he was given the suit land as a Tft inter vivo by his mother, Ms. Edith Ntamukunzi. On the ontrary/ the 1st appellant claimed that she acquired the

same disputed land through inheritance to her late paternal aunt; Ms. Mwajuma Nsubuga.

The trial Grade I Magistrate decided the dispute in favour of the 1st appellant and declared her to be the legal owner of the land. He issued a permanent injunction against the respondent, his servants and agents from, trespassing on tine suit land and awarded costs to the 1st appellant.

The respondent being dissatisfied with the decision of the trial Magistrate Grade I appealed to the High Court at Mborara '

The High Court appellate Judge heard the respondent's appeal and allowed it. The judgment and orders of the Grade I Magistrate were set aside and substituted with a declaration that the suit land belonged to the respondent. A permanent injunction restraining the appellants,. their servants/agents from further trespass to the suit land was issued. The appeal judge also awarded to the respondent general damages of Ug. shs. 10,000,000/=, mesne profits of Ug. Shs. 5, 000,000/= as well as costs of the appeal and those in the court below.

Being dissatisfied with the said judgment and orders of the High . Court, the 1st ..appellant appealed to this Court on the following grounds:-

*1. The learned appellate Judge erred in law andfact when he held that the respondent had adduced ample. corroborated oral and ....documentary evidence to convince the trial court that he was given the suit land as a gift inter vivos by his mother.*

*2. The learned appellate Judge erred in law and fact when he held that the will which the 1st appellant tendered in the trial court for identification could not be relied upon because it was not an exhibit.*

*3. The learned appellate Judge erred in law and fact when he held that the respondent's exhibit had more evidential value than the appellant's document DI.*

*4. The learned appellate Judge erred in law andfact when he held that the trial court relied upon c£* 4

*piece of discredited, evidence to declare the suit land as belonging to the appellant.*

o. *The learned appellate Judge erred in law and fact when he held that the trial court misdirected itself as to the balance ofprobabilities and where the balance tiltedfor the court to give its verdict.*

*6. The learned appellate Judge erred in law andfact when he held that the trial court granted prayers and issued orders and declarations.. that: Were neverprayedfor.*

During the joint conferencing, the parties agreed on the following issues for determination by this Court.

> *Whether the learned appellate Judge erred in taw by relying on the then appellants documents to decide that the appellant adduced sufficient oral and documentary evidence to prove his rightful ownership ofthe disputed land.*

*Whether the learned appellate Judge erred in laiv by finding that a document tendered in court for identification cannot be relied upon in evidence because it is not an exhibit.*

*Whether the learned appellate Judge properly directed himself on the law relating to standard ofproofin civil cases.*

*Whether the learned appellate Judge properly \ dressed . himself on the " law relating . to inconsistencies and contradictions in d witness'testimony.*

*Whether the learned appellate Judge properly addressed himself on the law relating to the discretion of court to grant orders and declarations.*

*Whether the learned appellate Judge properly evaluated the evidence.*

# Representation.

Mr. Bwenje Francis was counsel for the 1st appellant while Mr. Magoba John Bosco was for the respondent.

### Submissions for the 1st appellant.

After outlining the brief background of the case and agreed issues, counsel for the 1st appellant preferred to argue issues one and two together, three, four and six together and five and seven together.. '■ G •\_ J. . &lt; ?

He submitted that the appeal before this court was a second appeal from the decision of the High Court in Mbarara as the first appellate court. His Lordship below ruled that the evidence by the respondent which was overwhelming, was not adequately considered by the trial Grade I Magistrate. The learned Judge found that there was corroborated evidence to show that the property was given to the respondent as a gift inter vivos by her mother. He also relied on the fact that the respondent was living on the land with his mother. , •

# Issues one and two.

The appellant's Counsel submitted that there was no evidence that the mother was living there as the owner of the property. He argued that since Mwajuma was the aunt of the first appellant, the learned Trial Judge misdirected himself when he relied on the documents of'the respondent that the Kibanja was given to him by his mother as a gift inter vivos. The learned trial Judge erroneously came to that conclusion when he relied on the case of Okwonga Anthony Vs Uganda {2001-2005) HCB 36.

Counsel submitted that since the appellant had not objected to the will that is why it remained on record. He pointed out a principle of law to the effect that if a party makes an averment, he or she should not later on object to it. ? .? t'Tt j . j. ;

On issues 3, 4 and 6, counsel referred Court to Section 58 of the Evidence Act which provides that evidence may be proved orally. He submitted that, there were people who and <mve evidence that the property belonged to the appellant. According to him, there was a difference between a right interest. To that effect, he referred Court to the case of —^T^saa2i"J<ulabiraawo Vs. Robinah Nalubega, Court *of* Appeal, Civil Appeal NO. 55 of 2002 where Byamugisha, \*JA held that;

*\* -f think there is a difference in law between having a right in land and an interest. The latter goes with ownership, which might be legal or equitable. Such interest is capable of being registered as a charge on the land. On the other hand rights are associated with the use of Zandfor activities such as playing games and the use offootpaths etc".*

Counsel argued that if it was true as alleged that the respondent's mother was chased away, he would have made a report to the police. He submitted that when there are two competing interests, the first in time prevails. Iri support of this proposition he referred Court to the case of Tifu Lrkwago Vs Samwiri Mudde Kiiza & Another SCCA NO 13 of 1996 reported as. [1999] KALR 290 at page 292.

On the respondent's claim that he was a customary tenant by first occupation which had to be proved by cultivation or ;-\_^cj2japa±ion^Cuunsel asserted that the appellant had been cultivating the land although she was not in actual possession and that was what the respondent complained

Counsel pointed out that the learned appellate Judge ignored the grave inconsistencies in the respondent's evidence to the effect that the respondent stated that he was on the suit property which was not true because he •lived'away at Kakoba. The other falsehood was that all the ' local council officials were against him and that this explained why they did not come to give evidence, an assertion which he failed to prove. In support of his submission, Counsel invited us to consider and to accept as being persuasive the decision, though of the High Court of Uganda, of Dr. Vincent Karuhanga t/a Friends Polyclinic Vs National Insurance Corporation and Uganda Revenue Authority H. C. C. S NO. 617 of 2002 (2008) ULR 660 at 665 in which it was observed by that Court that;.

*(i) In law, a fact is said to be proved when court satisfied as. to its truth. The evidence by which thatr-■;^si&~d:^s-produeed; s..,G.^fecp.the-"preofa. The general rule is that the burden ofproof lies on the pa, ty who asserts the affirmative of the issue or guestion in dispute. When that party adduces evidence sufficient to raise a presumption of that what he. asserts is trite, he is said to shift the burden ofproofthat is, his allegation is presumed to be true unless his opponent adduces evidence to rebut the presumption".*

In counsels view, based on the above persuasive observation of the High Court, the appellant in this case had adduced sufficient evidence to prove that she lived on, and cultivated the suit land which fact was not rebutted by the respondent.

# Issue Five

Counsel faulted the appellate judge for having, granted orders which were not prayed for. He complained that the Judge gave the respondent an injunction restraining the

appellants from entering the land when they actually lived on it. '

Since the appellant was on the land, counsel prayed that the aopeal be allowed and the judgment of the learned trial Magistrate be restored and that the one of the High Court be set aside with costs here and in the courts below.

# Submissions for the respondent.

Learned counsel for the respondent made his submissions in reply in the same order as that adopted Ey ^».ufisel for the appellants.

He submitted that the respondent was the son of Esther. Kinkizi (PW1), who are both living on the land up to now. It was not true that it was the appellants who were cultivating the land.

He argued that there was evidence on record that PW1 invited Mwajuma the aunt of the first appellant to live on the land. According to the respondent's evidence, he is the one who had been living on the land and was still living on it a fact which was confirmed by PW5- Mukiga, a former-

LC3 Chairman. There was also evidence from PW5 that the respondent made reports against the appellants for trespassing on the respondent's. land. He was chased by.,, PW3 and the matter was reported to the Resident District Commissioner. Furthermore, it is the respondent as the aggrieved party, who initiated the original suit in the Grade I Magistrates'. Court Mbarara, against the appellant.

Counsel stated that the trial Grade I Magistrate had found that the present respondent had adduced sound oral evidence and that the case against the appellant had a lot of contradiztions. The dial Magistrate had also hound that PW1, the mother of the respondent, had given the land to the respondent. However, the same trial Magistrate had erroneously decided in favour of the present appellant.

With regard to the alleged will, learned counsel submitted that since the trial court found the document to be invalid and the appellant did not appeal against that decision, the issue cannot be. raised now. Counsel cited the case of Fenekansi Semakula Vs Ezekiel S. M Muloiido, Court of Appeal NO. 4 of 1982 in which it was held that; Appeal Civil

"The court would not entertain the third ground of appeal because it raised a new point of law which was not argued before the trial judge"

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In respect of exhibit D12, Counsel submitted that there were no addresses on the document, it was not witnessed and it was a photocopy. DW5 dismissed it, hence the finding by the learned appellate Judge that a photocopy put in evidence for identification only is not an exhibit any evidential value. In support of his contention, counsel cited the authority of Attorney General V. Tinyefuza, Supreme Court Civil Appeal No. 1 of 1997.

Counsel submitted that there were various contradictions in the appellant's case and that the High Court properly reevaluated the evidence and came to the correct decision.

With regard to the remedies granted, the appellate court found that the land belonged to the respondent hence, the High Court was right in making an order for an injunction restraining the appellant from further trespass.

the award of damages, there was no ground for their award. The awards were justified, because appellant—demolished- -three houses ..belonging™ to -the . respondent.

Finally Counsel prayed that the appeal be dismissed with costs here and in the courts below.

## Submissions in rejoinder.

Counsel Bwengye for the appellant referred Court to the . yw+ness evidence of Sheik, Khalid who had stated that he saw a will in which the deceased gave out the land and that' Ntamukunzi was not the owner of the land.

According to counsel, there were serious contradictions in the evidence of the respondent who claimed that he lived on the land and yet he lived elsewhere at Kakoba- Mbarara.

Further PW1 had stated that there were buildings on the " land and yet he had also earlier stated that • the houses were destroyed and so there were no houses on the suit land/

He faulted the learned appellate High Court Judge for granting general damages of Ug. Shs. $10,000,000/$ = (ten million) as well as the mesne profits of shs. $5,000,000/$ = (five million) and wondered under what law he made the awards. Counsel enjoined this court not to uphold the awards which in his opinion were unfair. In his view, the Judge should only have indicated what he would have awarded in the event the suit was to succeed.

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Counsel reiterated his earlier prayer that the appeal be allowed with costs. Anderson Agentin - And American Property fort of the state of the state the company of

### Findings of Court.

#### Duty of the second appellate court.

In Rex-vs-Hassan Bin Said alias Kimani Somali (1942) 9 EACA 62, the former Eastern Africa Court of Appeal considered the role of a second appellate court and held that an appeal to a second appeal is purely on questions of law. See also the case of Kifamunte Henry Vs Uganda, SCCA NO. 10/97.

A second appellate court is precluded from questioning the $16$ concurrent findings of fact by the trial and first appellate courts, provided that there was evidence to support those •• it -possible of even probable that it would not have come to the same conclusion.

A second appellate court can only interfere with such findings where there was no evidence to support those findings because this is a question of law.

The above principles were also echoed by the former Court of Appeal for East Africa in *Okeno — Vs -Republic (1972) ... EA 32,* where it said at page 36 paragraph H:

*"It is appropriate on a second appeal only to decide whether a judgment can be supported on the facts as found by the trial and first appellate court as this is purely a question of law. "*

Having stated the legal position regarding the role of a second appellate court, like this one, the imposing question to consider now is whether there was evidence in the instant case to support the concurrent findings, of fact of the trial and first appellate courts.

.he High court in our view, properly re- evaluated the .vidence before it as a first appellate court with a duty to subject the entire evidence and "record to a thorough and •igorous scrutiny with a view to arriving at its own inclusions based on the evidence on record.

after having carefully perused the evidence on ecord saw it reasonable to differ with the learned trial dagistrate|hence disagreeing with him. There was ample evidence in our judgment to back up the findings of the appellate judge. We thus answer issues 1 to 2 in the legauvc and issuer 3, 4 and.6 in the afhrmati7c?v \ '■sr-h.y g "

Wound 6 of the appeal was to the effect that:-

*"The learned appellate Judge erred in law and fact when, he held that the trial court granted prayers and issued orders and declarations that were never prayedfor".*

pis ground is the basis of the framed issue no. 5 ccording to the plaint on the record of the appeal, the ^spondent who was the plaintiff prayed for:-

*^(a) A declaration that the suit land belonged to the*

**I.** *plaintiff,* 18 .

- $(b)$ $\boldsymbol{A}$ permanent injunction restraining the defendants, their agents/ servants from further trespass, - An eviction order, $(c)$ - $(\epsilon \cdot \tilde{t})$ Mesne profits, - General damages, $(e)$ - Costs of the suit, $\theta$ - $(g)$ Any other and further relief this Honorable Court may deem fit.

In the respondent's memorandum of appeal to the High Court of Mbarara, he prayed that the Honourable court allows his appeal, set aside the orders of the trial Magistrate with costs here and below and grant the appellant the orders prayed for in the plaint.

High Court, which was the first appellate Court, The decided the appeal in favour of the appellant and made the following orders and declarations:-

The orders of the trial court are set aside, $(\alpha)$ That the suit land is declared to belong to the $(b)$ appellant,

- *(c) n or<^Gr for permanent injunction issues restraining the respondents, their servant^/ ^^r^^fromfunther trespass, •.* f; - *(d) General damages calculated at lOm/= to be paid to the appellant,* - *fe) Mesne profits of 5m/= to be paid -to the plaintiff/ appellant,* - *(f) The respondent also will pay costs of this appeal and those in the court below.*

• • \* • • .

The first appellate Court granted the orders as prayed for in. the nlaint., We are in. total agreement with the first appellate court's orders and declarations with regard to paragraphs (a), (b), (c) and (f). However we question the awards under paragraphs (d) and (c) of the prayer and wonder how the appellate Judge came up with the figures in the awards he made. yw-J

## *On General Damages,*

Damages are a form of compensation in money terms through a process of law for a loss or injury sustained by the plaintiff at: the instance of the defendant. General a<Jes are compensator in nature in that they should

sonie satisfaction, as far as money can do it, to the injured plaintiff.

Paragraph 812 of Harlsbury's Laws of England VOL 12 (1) is to the effect that general damages are losses, usually but not exclusively non-pecuniary which are not capable of precise quantification in monetary terms.

The award of general damages is in the discretion of court.

Considering the circumstances of this case, we find that ; rue amount of Ug. Shs. 10,000,000/= awarded by the learned Judge apart from being so high and excessive also lacked basis by way of evidence as to why they should have been awarded. Before assessment of damages, the respondent should have furnished evidence to justify that the amount awarded is commensurate to the extent of the injury suffered. This evidence was not supplied to court and the appellate judge did not state he had considered any such evidence before making the award. In our considered view, the award oi Ug. Shs. 10,000,000/= (ten Liillion) was not based on any evidence. We set it aside.

On the grant of mesne profits to the tune of five million Shillings.

Mesne profits are sums of money paid for the occupation of land to a person with right of immediate occupation, whose permission was not sought for such occupation.

**COLO**

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Mesne profits commonly occur where a landlord has obtained an order from a court to evict a tenant, or where an individual sues to eject a bona fide landowner to whom title to land was improperly conveyed.

The amount represents the value (living rent free, profits earned from the land, etc.) the ejected tenant received from the property between the time the court ordered the eviction and the time when the tenant actually left the property. They must be drawn from the land itself,-rather than improvements on it.

It was incumbent on the respondent to establish at the trial stage not only the existence of his right, but also the extent of it.

It is an established principle that the burden of proving the profits received lies on the person who claims that it was received, and not on the one in possession as a wrong doer.

The latter cannot be relied upon, to provide an honest and accuiate account ol the monies realized during the time of his or her occupation.

At, the time the suit was commenced, the respondent was in possession of the land living on it, with his mother and still is. There would therefore be no legal basis for claiming mesne profits when the appellants were never in possession and occupation of the suit land.

It was for the respondent to prove what kind of profits the appellants received. The respondent neither pleaded nor proved that the appellant ever took possession of the suit land and earned any profits out of it. Equally, no evidence was adduced by the respondent to establish *prima facie* that any profits accrued from the suit property.

(five mi We therefore do not find the legal basis on which, the sums shs. 10,000,000/- general damages and shs. 5,000,000/- 3fits were awarded. This ground of appeal and in as much as it is part of issue NO. 5 succeeds and accordingly the awards for general damages and mesne profits are set aside. ' ~

In the result, the appeal substantially fails and is dismissed subject to the variations we have made. The 1st ap pellant will pay to the respondent % (three quarters) of th-., taxed costs here and in the courts below.

The above decision was reached by all three members of the Coram. However, Hon. Lady Justice M. S Arach Amoko was promoted to the Supreme Court and left before this judgment was finally prepared and delivered, hence her signature is missing on the same

DATED THIS \_DAY OF ... 2014

. HON. JUSTICE A. S. NSHIMYE,

JUSTICE OF APPEAL.. .

HON. JUSTICE M. S. ARACH AMOKO,

JUSTICE OF APPEAL.