Kitaka v Kiyita (Civil Appeal 6 of 1990) [1994] UGHC 45 (18 February 1994)

Full Case Text

#### THE REPUBLIC OF UGANDA

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

#### CIVIL APPEAL NO. 6 OF 1990

LEO KITAKA ::::::::::::::::::::::::::::::: APPELLANT

#### VERSUS

**ICC. ::::::::::::::::::::::::::::::::::: BEN KTYTTA**

Before: The Hon. Lady Justice M. Kirein

### Judgement

This is an appeal against the judgeent and decree of Grade I Magletrate Mifyana pronounced on 8/3/1990 against the appellant who was a defendant in the lower court. The appellant was ordered to pay the respondent/plaintiff shs. 70,000/= special damages and shs. 430,000/= general damages for breach of contract by the appellant's failure to plough the respondent's land where he intended to plant beans.

The two parties were not represented by counsel in the lower court but on appeal learned counsel Mr. Nshimye of M/S Nshimye and Co. Advocates represented the appellant and learned counsel Mr. Kabugo of M/S Kabugo and Co. Advocates represented the respondent/plaintiff.

The brief background to this appeal is that Uganda Commercial Bank (UCB) Mityana Branch entered into an agreement on behalf of the plaintiff with the defendant. The defendant was hired to plough the plaintiff's 5 acres of land, first and second ploughing, the defendant was to be paid shs. 35,000/= for each acre was to be ploughed for ahs. $7,000/=$

According to the plaintiff, the defendant did the first ploughing, for the second ploughing he only ploughed one acre. As a result of failure by the defendant to perform his part of the contract, the plaintiff could not plant his beans and he missed the planting season. The defendant had been paid money for both plo hging. The plaintiff summoned witnesses who testified as to how muci he would have got from growing the beans. The trial Magistrate used that evidence to $.../2...$

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calculate the damages to be paid to the plaintiff.

The defendant on the other hand admitted that there was an agreement to plough the plaintiff's land. However, the defendant did not complete the: first ploughing, he only ploughed 2 acres because he was prevented from finishing by tree stumps. He said that he asked the plaintiff to remove the stumps but the plaintiff refused. He further testified that he was paid shs. 70,000/= but returned shs. 35,000!- to the plaintiff. The defendant contended that it was the plaintiff who breached through his negration of by refusing to remove the stumps thus making it imposible $\mathbf{r} \mathbf{d}^2 = \mathbf{r} \mathbf{d}^2 + \mathbf{r} \mathbf{d}^2 \mathbf{d}^2 + \mathbf{r} \mathbf{d}^2 \mathbf{d}^2 + \mathbf{r} \mathbf{d}^2 \mathbf{d}^2$ to operate the tractor.

The trial Magistrate after hearing evidence from both sides, he found that the defendant was in breach of the contract and he ord red him to pay the respondent general and special damages, plus interest and costs of the suit.

Mr. Nshimye abandoned the first ground of the memorandum of appeal and argued the following grounds of appeal:

- $(1)$ The learned trial Magistrate erred in holding that the appellant was in breach of contract. - (2) The learned trial Magistrate misdirected kimself in not - $\tau \leq \tau$ believing the appellant that stumps had not been removed. (3) The general damages awarded were excessive compared to the - price of beans and occassioned a miscarriage of justice. award of shs. $70,000/$ = as special damages, was $(4)$ The total - erroneous in that it included money not claimed and that refunded to the respondent. - (5) The respondent was guilty of failure to mitigate the loss if any. As the first appellate court, this court has a duty to review the evidence and arrive at its own conclusions if need be Padya v R. 1957 Ed 336. Selle Vs. Associated Motor Boat Co 1968 EA 123.

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With regard to the first ground of appeal counsel for the appellant submitted that the trial Magistrate erred in relying on an agreement which was never exhibited in the proceedings although it was annexed to the Plaint. He submitted that the terms of the agreement were not clear. but both parties agreed that there was no agreement where the appellant agreed to plough 5 acres of land to enable the respondent plant beans under the UCB Rural Farmers Scheme. Counsel submitted that the idea of interplanting maize was bround t by P. W.4 but was not pleaded by the respondent. Counsel further contended that the plaintiff said that the appellant ploughed 5 acres while other witnesses from the bank said that he had ploughed 4 acres. That the appellant said he had ploughed 2 acres which show his sincerity because he would have agreed with the respondent and said 5 acres as he stood to benefit. The appellant also said that he recoived shs. $70,000/$ = for ploughing but when the stumps were not refunded she. $35,000/$ =. Counsel further submitted that the removed he respondent said that the appellant ploughed 1 acre during the second ploughing, however, PW.2 Mukalazi said the appellant ploughed 1% agres. The Magistrate did not believe the evidence of the driver of the appellant that he had found stumps on the ground that stopped him from continuing with the job. Counsel submitted that the Magistrate erred in holding that the appellant failed to plough as he had contracted to do. The trial Magistrate should not have believed the evidence of the respondent as it was full of contradictions. He further submitted that the Magistrate failed to address himself to the common knowledge that stumps are always hidden in the ground, and can only be discovered by the machine in the process of plouhging. At the end of his submission on ground 1 of the Appeal which was originally ground 2 it was apparent that counsel had argued the first two grounds together.

Mr. Kabugo submitted on the first two grounds of appeal and contended that both parties proceeded on the understanding that Annex.'A' to the plaint was an agreement between the parties. The agreement referred to on page 7 and 9 of the proceedings was annexture 'A' to the plaint

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and the court was entitled to proceed with a matter which is left to it as an issue whether that matter is pleaded or put in evidence or not. He submitted that there was no-where in the proceedings where the annexture was contested. Counsel further submitted that the whole case was based on the fact that the appellant did not plough the 5 acres so there was no way he could have said that he did. He submitted that the respondent's witnesses were first estimating how much was ploughed and the differences in their estimates should not be used as a ground to discredit them. Counsel further submitted that it was not stated in the agreement that the respondent had to remove the stumps before land was ploughed each that being as it was right to seekmm that the appellant was to remove them. Counsel further submitted that unless the stumpe amounted to imposibility of performance of contract they could not have prevented the appellant from performing his part of the contract. Gouncel Submitted that it is not true that stumps cannot be seen, he said that the professional people who visited the site did not see them. Turning to the first ground of appeal, that the Magistrate erred in relying on an agreement which was not exhibited in court and it was. therefore not part of the evidence, I agree that a mere annexing of a document to the plaint doos not automatically make it part of the avidence, the document should be produced in evidence at the hearing and made part of the evidence. The document should be proved. However, the circumstances of this case are rather unique. The respondent referred to an agreement Annexture "A" to the plaint which was made in August, 1989. The appellant in his defence also refers to an agreement, he does not specifically deny Annexture "A" to the plaint. In his evidence the appellant said: page 7 of the proceedings:

> "I admit there was an agreement between me and the Bank to plough two times the plaintiffs' five acres. I also admit the money was advanced to me before I did the job. Do not admit that I did the first ploughing and finished it. I only ploughed 2 acresfirst ploughing. The rest of the three acres had tree stumps".

Then on page 9 of the proceedings the appellant furtherntestified

"I know Annexture. It bears my signature. It rimes bears the signiture of the Bank Manager. It does not bear the signiture of the plaintiff. I made the agreement with the bank, not the plaintiff. The bank was acting for the plaintiff. I did not inform the bank that I had failed to do the job by the acts of the plaintiff."

The amount of moeny to be paid to the appellant namely shs.70,000/= per acre ploughed was also not disputed. What appears to be missing from the agreement is who was to remove the the tree stumps in case they were found in the ground. Although the agreement was not exhibited in court, but all the terms contained therein were testified to by the ampellant end the repsondent witnesses as can be gathered from the testimony of the appellant cited above.

PW.4 Michael Amoney, Agricaultural Officer with UCB Mityana Branch testified that an agreement for ploughing was made between the Bank and the defendant. It was signed by the defendant and the Bank Manager, r The agreement was made by the Bank as the lender on behalf of the plaintiff as horrower. The witness was not cross-examined by the defendant on the above evidence because the defendant said that it was correct. I have therefore found that the learned trial Magistrate was justifies in admitting Annexture "A" in evidence as it was proved in court as the agreement governing the transaction between the appellant and the respondent. Failure to exhibit was an oversight on part of the court as the respondent was not represented by counsel. From the terms of the agreement there was no clause to the effect that the respondent would be responsible for removing the tree stumps if found during the ploughing. Even if I had not found that Annexture "A" was part of the record, I-would still have found from the evidence of the plaintiff's witnesses, whom I found to be consistent and truthful. that there was no agreement for the plaintiff/respondent to remove stumps. First the respondent testified that the area where the appellant was to plough did not have any stumps. PW.2 Mukalazi also testified that the land which was formerly cleured without trees or stumps. ...................................

The court witness Deo Serukwaya, banker with UCB testified that before granting the loan he visited the area to be ploughed in July, 1989. Four acres were cleared without stumps, it had been ploughed before. The one Acre which was not cleared was of light bush with few trees not close and could be left as shade or wind they could not affect ploughing. The evidence of the defendant was to the effect that he only ploughed 2 acres of the first ploughing. He did not plough further because of the tree stumps he found on the land, he asked the plaintiff to remove the stumps but he never did. However, the defendant did not report to the bank that he had failed to do the ploughing because of the plaintiff's failure to remove the stumps. D. W.2 Zacharia Kaggwa Kisito testified that he was a son of the defendant and went with the driver of the tractor to supervise ploughing. He said that they ploughed only 2 acres for the plaintiff and topped because of the stumps which they told him oto remove and he ne er did. In cross-examination he said that they did not go back to c.eck whether the plaintiff had removed the stumps. D. W.1 and D. W.1 both claimed that each one of them told the plaintiff to remove the sumps; 🚉 🎎 hard to believe either of them. The fact that $D^{w1}$ did no: go to complain to the $B_{ank}$ about the stumps and DW2 did not go bacs to check whether the stumps had been removed go to support the plantiff's evidence that there were no stumps but the defendant just neglected to do his part of the contract by failing to plough the plaintiff' land. I do not agree with counsel for the appellant that the appellan was honest because he said that he ploughed only 2 acres instead of 5 cres first ploughing as was testified to by the respondent. The appella, having put up his defence that he failed to plough because of the stings, he could not at the same time say that he ploughed 5 acres, because he could not have ploughed them with the stumps. It was more log al to say that he ploughed only 2 % acres and he could not plough firther because of the stumps.

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$\mathcal{C}$ $\cdot$ learned trial Magistrate was justified in believing the plaintiff witnesses that there were no stumps on the plaintiff's land which necessited removal and that the defendant was in breach of contract.

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• \* \* ' ..... i have therefore found that the

I did not find the contradiction in the evidence of PW1 and PW2 about how may acres were ploughed to be a serious one as they were both just estimating and the difference was not much PW1 said 1 acre and PW2 said 1)6 acres.

In the circumstances of this case the trial Magistrate could not have taken judicial notice that stumps are hidden underneath as there was overwhelming evidence that there were no stumps at all\*

The fourth issue was that the general damages awarded to the respondent were excessive, the trial Magistrate considered interplanting of Maize which was neither pleaded or testified to by the plaintiff. The respondent was awarded shs. 4j0,000/-. Counsel submitted that the respondent should have been awarded between Shs. 5^j000l- and 60,000/=.

This contract was terminated by the appellant's failure to perform. Both parties were discharged from further performance of the contract, rights and obligation which had already aSor-ed ' were not discharged. The party injured by the breach is entitled to payment of damages he may have suffefed as a result of the breacA.

In this case the respondent was entitled to recover damages he may have suffered by the appellant's failure to plough his land whore he hoped to grow beans for sell.

In his evidence the respondent oldmed shs. 35,000/= for the second ploufehfi&g which was not completed. Ti.e appellant in his testimony said that the respondent asked him to refuid money for the 2nd ploughing as he did not want the appellant to continue :ith the work. Demand for this money was made on 21/8/89 the same day tie agreement was signed before work had even commenced according to the appellant. I agree with the

learned trial Magistrate thnt she. 35,000/= cheque No. 153181 dated \* X; 25/8/89 which the appellant paid to the respondent could not have been =a refund for 2nd ploughing because by that time the appellant had not **» . • \* • t** been paid for the second ploughing as he was paid on 31/8/89 by cheque No. 2395^0, I believe the evidence of the respondent that this payment was a different transaction. ^?he appellant was paid the total of shs. 7®>000/= but did not complete the work.

With regard to assessment of general damages, the triaJ Magistrate used the figure of shs. 500,000/= claimed by the respondent in paragraph 7 (a) of the plaint. The trial Magistrate took the figure of Shs. 500,000/= expected profit and deducted shs. 70,000/= which the respondent would have paid to the Bank for the loan and remained with a figure of Shs. MO,000/= which he awarded as general damages. He awarded shs. 70,000/= as anecial damages.

The evidence of PWU Agricultural Officer with UCB Mityana Branch was accepted as correct by the appellant. Be testified that every farmer who was given a loan had to inter-crop beans wiih maize. He said that from the experience of yield by the farmer in the s^son, the intercropping per acre would yield an average of 3 bags for beans and i^tween 6-7 bags without intercropping. The price of a bag of beans at gover\*.ment price wo. be shs. 10,000/=. 1 shall not labour on the prices for maize sin^ the **a** respondent never pleaded them and all his claims were based on'beans na per paragraph 7 of the plaint. If we take an average of *6ft* bags per acre times 5 acres times shs. 10,000/= cost of each, bag, the result is shs. 325^000/=. This figure is exclusive of expenses. The damages of shs. ^30,000/= was awarded to the respondent basing on his claim in the plaint which was not proved in evidence. I therefore find that the general damages the respondent was entitled to as expected profits was shs.325,000/=. The neat ground of appeal is that the award of shs. 70,000/= was errenous In thBt--< t-indluded money not claimed and that refunded to the respondent. /9....

As I have already found there was no money refunded to respondent. First of all it was the bank which was paying the appellant there was no way the respondent would have demanded and received refund from the appellant. The appellant was paid a total of Shs. 70.000/which he retained without completing the work. The law relating to special damages is that it must be specifically pleaded and proved. I refer to the case of Kampala City Council vs. Nakaye 1972 EA 446. On the strengh of the said authority I am of the view $thnt$ the learned Magistrate should not have awarded Shs. 35,000/= for the first ploughing to respondent as it was not pleaded. If the Magistrate $\mathbb{R}_1$ d wanted to assist the respondent/plaintiff as he was not represented by counsel. he should have advised him to amend his pleadings. However, the respondent was entitled to shs. 35,000/= paid for the 2nd ploughing as it was pleaded and proved.

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The last ground of appeal was that the respondent was guilty of failure to mitigate his loss. Counsel for the appellant submitted that the respondent should have planted beans in the one acre where 2nd ploughing was done, thus saving some money. The law of mitigation imposes a duty upon the plaintiff to take all reasonable steps to mitigate the loss caused by the breach of contract and stops him from claiming composation for any part of the damages which is due to his neglect to do so. Whether the plaintiff has failed to take a reasonable opportunity of mitigation is a question of fact dependent upon the particular circumstances of each case and the burden of proving such failure rests on the defendant - Payzu Ltd. vs. Saumders (1919)2 K. B. 581. In the present case the respondent testified that, the appellant ploughed the one acre of 2nd plouhging late. The respondent did not plant in the one acre which was completed because the appellant kept promising that he was going to, plough the whole area until he finally

told him that he was not going to finish and ty this time the one

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## : 10 : . ! acre had gone wild and the planting season was over., According to PW4, the respondent complained to the bank about the appellant's

From the above evidence I am of the considered view that the respondent cannot be blamed for failing to mitigate his damages it was the appellant who kept promising him that he was to finish the 2nd ploughing so that he plants once. As the respondent waited the season .for planting was expiring and the one acre became bushy. 1 have therefore found that the respondent\*o failure to mitigate hie loos by planting in the one completed acre was caused by the appellant and . cannot bo blguncd on t&o respondent.

In conclusion, this appeal succeeds in part. The respondent should be awarded

(l) Shs. 325,000/= general damages,

failure to complete the work.

- (2) Special damages Shs. 35,000/= - (3) Interest on (1) and (2) above at the rate of 12% per annum from the date of filing this suit until payment in full.

The respondent is awarded costs in the lower court, I shall make no order as.to the cost of appeal.

M. Ki \*e

18/02/94

l8/»2/9^ Mr. Kabugo for the respondent. None for Appellant.

Court: Judgement delivered on thex-<3freceive—of. the trial Judge. •

^CHAfcir' \*AG. DEPUTY REGISTRAR