Kyazze v Bwengye (Civil Appeal 12 of 2020) [2021] UGHCCD 279 (9 July 2021)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA **CIVIL DIVISION** CIVIL APPEAL NO. 12 OF 2020

## (ARISING FROM CIVIL SUIT NO. 58 OF 2019)

KYAZZE EVA ::::::::::::::::::::::::::::::::::

**VERSUS**

# HERBERT BWENGYE :::::::::::::::::::::::::::::::::::: **BEFORE: HON: JUSTICE EMMANUEL BAGUMA**

### **JUDGMENT**

## Introduction.

This is an appeal against the judgment and orders of His Worship Okumu Jude Muwone Magistrate Grade 1 at Makindye Chief Magistrate's court.

The respondent/plaintiff filed Civil Suit No. 58 of 2019 against the

appellant/defendant for wrongful eviction, compensation for the spoilt $15$ property, general damages and costs of the suit.

The trial magistrate found in favor of the respondent/plaintiff and the appellant/defendant being dissatisfied with the judgment and orders of the trial court, appealed to this honorable court.

$20$

$\mathsf{S}$

$10$

## Grounds of appeal.

Initially, the memorandum of appeal had 5 grounds but during the hearing of the appeal, counsel for the appellant decided to abandon grounds 1 and 4 and proceed with only grounds 2, 3 and 5. Both counsel agreed to file written submissions in respect of the remaining 3 grounds, which were argued as below;

- $25$ - 1. The learned trial magistrate erred in law and fact when he held that the appellant illegally evicted the respondent from her premises.

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- 2. The learned trial magistrate erred in law and fact when he held that the respondent did not receive his properties. - 3. The learned trial magistrate erred in law and fact when he granted unjustified damages in form of general damages and monies lost during eviction of the respondent from the prernises.

#### Representation.

The appellant was represented by Mr. Denis Mwina together with Mr. Isaac Ssekabira while the respondent was represented by Ms. Kyakuwa

40 Lydia.

## Duty of the l" appellate court

The duty of this court as a first Appellate Court was stated in the case of Kifamunte Henry V Uganda, S. C criminal Appeal No. 10 of 1997 where court held that;

45 "The first appellate court has a duty to review the evidence of the case, to reconsider the materials before the trial judge and make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it."

This Court therefore has a duty to re-evaluate the evidence to avoid a miscarriage of . Justice as it mindfully arrives at its own conclusion.

I will therefore bear these principles in mind as I resolve the grounds of appeal in this case.

# Ground 1: The learrred trial magistrate erred in law and fact when he held that the appellant illesally evicted the respondent from her 55 preYrrrses.

## Submissiols by counsel for the appellant on sround l.

Counsel for the appellant submitted that the respondent had defaulted in rent for a period of almost 3 months, which constituted a fundamental

60 breach of the tenancy agreement. Counsel stated that the default in rent also determined the tenancy relationship between the appellant and respondent and made the respondent a trespasser on the suit premises giving the appellant the right to use reasonable force to evict him.

65 Counsel argued that there was no evidence adduced at trial by the respondent to prove that he did not owe the appellant any money in form of rent.

Counsel added that PW2,a wife to the respondent testified during trial that they paid rent for five months from January to May 2017 yet they stayed in the premises till August 2017 when the respondent was arrested leaving the rent for June, July and August 2017 due at the time of the arrest and during his stay in prison.

75 Counsel further submitted that the trial magistrate found that the appellant did not involve the LCI of the area, however, the appellant testified that she reported the matter to the LCI and even at the time of removal of the respondent's properties, the LCI was called and even the list of properties was recorded and comprises the stamp of the L. Cl of the area. He referred to exhibit DEXI.

# 80 Reolv bv coutosel for the respondent.

Counsel for the respondent submitted that the trial magistrate was correct to find that the appellant illegally evicted the respondent.

85 Counsel stated that the trial magistrate rightly applied the rent Restriction Act, Cap 231 and the case of Komakech Sam & Others V Ayaa Corina & Anor H. C. Civil Appeal No. OO28 of 2016.

Counsel argued that under the Rent restriction Act, a landlord could only repossess any dwelling house/premises or eject a tenant upon acquiring an order from court. That in the instant case, no such order was acquired by the appellant before the eviction and as such rendering the same illegal for non-compliance with the law as correctly held by the trial magistrate.

95 Counsel added that there is no evidence on record to prove that the appellant gave notice to the tenant to repossess the premises or to require him to pay the rent arrears, which notice the tenant, continued to defy.

100 Counsel submitted that if the respondent had defaulted on rent, the proper procedure would have been to enforce payment through a court order or an eviction order.

## Analysis of court on ground 1.

105 Section 6 (l) of the Rent Restriction Act requires a landlord to acquire an order from court before repossessing any dwelling house/premises or ejecting a tenant.

In the case of Joy Tumushabe & Anor v Anglo Africa Limited & Anor SCCA No.7 of 1999, it was held that;

- 110 "Where tenants defy the landlord's terms and conditions of tenancy agreed between the parties, and the landlord qives notice to reoossess r ctala I act whi h the tenan ntinue to disre a they become trespassers on the property concerned." - 115 Further, in the case of Kyomukama Salome v Katushabe Juliet H. C. Civil Appeal No.61 of 2018, court held that; "...1f the Appellant felt that the Respondent had defaulted on rent, in the absence of a written agreement

spelling out the terms, the implied conditions by the law would apply or she would have souqht to enforce Dayment throuqh a court order or an I20 eviction order..."

In the instant case, the respondent was arrested on l0,h August 2017 as seen in the plaint. The appellant testified as DWI at page l0 of the lower conrt procesdings that on 4'n September 2O17, she evicted the respondent while he was in prison and the house was not in use. She stated that she kept his properties in a new poultry house under construction.

It is clear that the respondent was in prison at the time of eviction as adduced by both parties during trial and it is clear that no notice of eviction was served on him. The appellant also testified in crossexamination at page lO last paragraph line I of the lower court proceedings that she did not give any notice to the respondent. 130

135 It is my considered view that the appellant evicted the respondent without an eviction order from court as necessitated by the above provisions of the law. There is no evidence on court record to prove that the appellant gave notice to the respondent to repossess the premises or to require him to pay the rent arrears, which notice the tenant, continued to defy.

Counsel for the appellant labored so hard to convince court that the appellant used reasonable force to evict the respondent which is not provided under the law because the law requires notice of eviction to be served on the tenant. Even if counsel wanted court to believe that the LCI was called, there is no evidence to show that the LCl was present.

I therefore find that the trial magistrate was right to hold that the eviction of the Respondent,/plaintiff by the Appellant/defendant was illegal and I see no reason to fault him. Ground I of the appeal fails.

Ground 2: The learned trial magistrate erred in law and fact when he held that the respondent did not receive his properties.

### Submissions by counsel for the appellant on Ground 2.

- o 155 Counsel for the appellant submitted that at page 29 Paragraph 3 of the Record of Appeal, the Respondent testified during cross examination that not all his properties were destroyed when the police made the list, and he could not move with the property because it was at night. - 160 Counsel argued that this was clear evidence that the Respondent actually received his properties but just decided to reject them. Counsel stated that at Page 35 Paragraph I of the Record of Appeal, Ihe Appellant testified during her examination in chief that upon the release of the Respondent, his properties were handed over to him but he did not

765 take them.

Further that DW2 also testified at Page 36 Paragraph 2 of the Record of Appeal that the respondent's properties were given to him but he left them.

## 170 Renlv bv counsel for the respondent.

Counsel for the respondent submitted that the learned trial magistrate properly evaluated the evidence on record and came to the right conclusion that the respondent/plaintiff did not receive any of his property from the appellant/defendant because some of it was stolen and others destroyed due to poor storage.

Counsel argued that the Respondent on page 3 of the record of proceedings paragraph 3, tine 11 testified that he did not take the property because it was destroyed.

180 Counsel stated that DWl at page l0 of the record of proceedings testified that she asked a one Opio a police officer why the plaintiff had not taken his property. That this confirmed that the property was never received.

o185 Counsel added that DW2 a daughter to the Appellant at page l1 of the record of proceedings paragraph 1 tine 6 and 7 testified that the respondent was given his property and left them at the Appellant's home and further on cross examination on page 11 of the record of proceedings paragraph 2 line 2 she testified that the Plaintiff left his property at the Appellant's home.

### Analysis of court on sround 2.

In the instant case, the Respondent testified as PWI on page 3 paragraph 3, line 10 of the record of proceedings that he did not receive his property because it was all destroyed.

o 195 DWl, the appellant testified at page l0 paragraph I line 14-16 that they made a list of the property and handed them over to the respondent/plaintiff .

200 DW2, a daughter to the appellant testified at page ll, paragraph I line 7 of the record of proceedings that they gave the respondent his property but he left them home.

DW4, the chairperson for the youths testified at page 13 last paragraph that it was him and the defence secretary who were getting things from the appellant's house and the police was recording and they handed them

205 over to the respondent but he refused to get his things claiming that they were spoilt.

From the above evidence of DW4, the respondent was handed over the properties in the presence of the Chairperson Youth and defence secretary. 'PEXI' also confirms the list of properties and it was signed by both the appellant and respondent and other witnesses.

In my considered view and opinion, the properties were handed over to the respondent even if he refused to take them alleging that they were spoilt.

I find that the trial magistrate erred in holding that the properties were not handed to the respondent. Ground 2 of the appeal succeeds.

### 220 Ground 3: The learned trial magistrate erred in law and fact when he granted 'njustified damages in form of general damages and monies lost during eviction of the respondent from the premises.

# Submissions by counsel for the appellant on ground 3.

2r5

- 225 Counsel for the appellant cited the case of Ahmed El Termewy V Hassan Awadi HCCS No. 95 of 2012 and submitted that general damages are compensatory in nature and are meant to make good any non-monetary loss, inconvenience or injury suffered by a claimant as a result of the acts of the other party to a suit and are discretionary. - 230 235 Counsel argued that there was no evidence led by the respondent of any loss suffered as a result of the appellant's acts that would justify the grant of general damages to the tune of -1,000,000/=. That the respondent only led evidence of loss of a basin, water flask, plastic chairs and one mattress which were damaged and these could not justify the award of 4,000,000/= as general damages.

Counsel further stated that the trial magistrate awarded the respondent UGX 3,000,000/= as money that was kept in the house and got lost yet no evidence was led to prove that the respondent actually had the said monies in the house.

### Replv bv counsel for the respondent.

Counsel for the respondent submitted that the respondent testified at trial that he had UGX 3,000,000,/= in the house and this evidence was corroborated by PWZ who testified during cross examination at page 5 that the money was inside the mattress and it was for their matooke business.

Counsel stated that the trial magistrate rightly exercised his discretion and reduced the amount of 9,000,000/= claimed by the respondent to ,1,000,000/= which was in his discretion.

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to prove it."

# Analvsis olcourt on Ground 3.

Section fof(l) of the Evidence Act Cap 6 provides that whoever desires any court to give judgment as to any legal right dependent on the existence of facts which he or she asserts must prove that those facts exist.

In the case of Shell Uganda liynited V. Achilles Mukiibi, C. A. Civil Appeal No. 69 of 2OO4, court held that;

"A plaintiff must understand that if they bring an action for damages, it is for them to prove their damages. It is ,rot enough to write down the particulars and so to speak throw them at the head of the court saying this is what I have lost, I ask you to give these damages, and they have

- 265 In the instant case, at page 6 of the judgment, the trial magistrate awarded the Respondent UGX 3,000,000/= (Three Million Shillings) being the money that the respondent had kept in the house that got lost during the eviction. - There is however no evidence on court record showing proof of the 270 3,000,000/= (Three million shillings) apart from mere allegations by PW2 a wife to the respondent,/plaintiff who alleged that her husband had money in the mattress and I wonder how she left out that money up to the time of eviction yet she knew that her husband was in prison. - 275 Although pleaded, the evidence adduced by the respondent at trial did not meet the requirement of strict proof. The claim for 3,000,000/= is consequently rejected.

On the issue of general damages, the award of general damages is in the discretion of court in respect of what the law presumes to be the natural and probable consequence of the defendant's act or omission. 280

In the instant case, the respondent had pleaded general damages of 9,000,000/= (Nine rnillion shillings) and the trial magistrate in his discretion awarded him general damages for inconvenience of 4,000,000/= (four rnillion shillings) which I find no reason to tamper with in the circumstances. 285

Conclusion.

In the final analysis, this appeal partly fails and partly succeeds.

In the premises, court makes the following orders;

- L That there was illegal eviction of the respondent. - 2. That the properties were handed over to the respondent.

- 3. The award of 3,000,000/= (Three millisn shillings) as monies lost during illegal eviction is rejected and set aside. - 4. The award of general damages for inconvenience of 4,000,000/= (four million shillings) is upheld. - 5. Given the circumstances of this appeal, each party should bear its own costs both on appeal and at the lower court. - 300 I so order

O Dated, signed and delivered by email this 9'h day of July 202f .

-a 305 Baguma Judge