Misango and Another v Attorney General and Another (HCT-00-CV-CS 0043/2005) [2012] UGHC 431 (22 February 2012)

Full Case Text

## **HCT-00-CV-CS-0043 OF 2005** THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA

#### **PLAINTINTIFFS 1. MISANGOABEL 2. RUTAAMA GEOFREY.**

### **VERSUS**

**1. THE ATTORNEY GENERAL**

**DEFENDANTS 2. THE APAC DISTRICT ADMINISTRATE**

#### **BEFORE: HON. LADY JUSTICE ELIZABETH MUSOKE**

# *-fO* **JUDGMENT**

The plaintiffs sued the defendants for special, aggravated and general damages for property allegedly wrongfully taken/converted, loss of earnings, interest, as well as interest and costs.

During the scheduling conference the following facts were agreed upon:

1) That the plaintiffs were at the material time, June to August 2004 occupying part of Maruzi Ranch in Akokoro Sub-county, Apac District.

2) That the plaintiffs were at one time or another during the above period ordered by the RDC's office and the Apac District Administration officials to vacate the said Ranch.

A number of issues were raised and framed as follows:

- a) Whether the plaintiffs' occupancy in Maruzi was legal. - laws. b) Whether the order of evacuation was proper under the governing

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- c) Whether the defendants carried out the evacuation of Maruzi Ranch. - d) Whether the plaintiffs lost their animals and household items and equipments as pleaded. - IT? - e) Whether the defendants are liable for the loss. - f) Remedies available to the parties.

defendant and Cox Ojuko represented the 2nd defendant. Parties filed written submission. The plaintiffs were represented by Mr Bagoroza David while Ms. Nabakooza Margaret represented the 1st

The plaintiffs called 6 witnesses including themselves while the defence called 5 witnesses.

It was the 1st After two weeks they were taken to the Magistrates Court of Apac where they were charged with unlawful entry into the said Ranch but were later released on bail of Shs. 600,000= each. plaintiff's (PW1) testimony that he was keeping his cattle in Mubende and that during the drought he went to Akokoro Sub-county, Apac, to graze his cattle until such a time when the rains would come. He together with PW2, Rutaama Godfrey, owned 500 heads of cattle and that he got a movement permit to move the said cattle from Masindi to Apac. On 8th August 2004, at around 5.00 p.m., he together with PW2 were arrested, thrown on the RDC's vehicle in her presence and detained for 4 days at Apac Police Station.

It was also PW1's testimony that for the 3 months they were on the Ranch, no one ever told to leave the Ranch. He testified that lots of properties were destroyed including drugs, bicycles, clothes and 500 heads of cattle.

During cross-examination, PW1 testified that he was allowed to graze in the Maruzi Ranch by the L. C. 3 Chairman, Akokoro and the RDC who told him that Maruzi being a Government ranch, he could use it for grazing till

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the rains came. He said he relied on the Movement permit from the District Veterinary Officer, Masindi, allowing him to move 500 heads of cattle from Masindi Port to Apac as per Exhibit P1. He denied destruction by their cattle of people's crops; or having been informed of any meeting by the District officials. He however admitted being charged with forceful entry, *—J5* having jumped bail for fear of being harmed by the people of the area after having been warned by the District Police Commander (DPC).

In re-examination, the plaintiff testified that there were other people grazing in the said ranch and that he only jumped bail because of the advice by the DPC but he was willing to answer the said charges if assured of protection. - *O*

Geoffrey Rutaama, PW2 testified that on 18/8/2004, they had crossed to Apac with their animals and properties but when they reached the ranch in question, there was a disease outbreak hence movement was restricted.

It was his testimony that he, with PW1 got a movement permit from the District Veterinary officer, Masindi allowing them to enter the ranch. On the -?S 18/08 2004 at around 5.00 p.m. while coming from PW1's place, he saw a huge group of policemen with guns and pangas who asked him to take

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them to where PW1 burnt huts, a was. He said that he came across dead animals, 8 teenage boy with a huge cut on the nose while other animals were roaming. He also testified that he met the Councillor for people with disabilities, a one Johnson who intimated to him that in their culture, they don t allow intruders to take even an inch of their land and that they were aware the Government was trying to send some Rwandese to grab their land.

Mbabazi Jesca, PW4 confirmed PW2's testimony and added that the group helped by the people from Masindi to cross over. that attacked them took away her baby's nappies and advised her to leave before they could harm her. She reached the shore at 2.00 a.m. and was —

In cross examination she confirmed that there was foot and mouth disease and that their cattle had been affected. She also confirmed the detention of including 500 heads of cattle. PW1 and PW2 by the defendant and destruction of their properties

the Vincent Kashaija, PW5 testified that in 2004 he received a call from PW1, informing him about the incidents at Apac. He informed his friend, one Luutu that his relatives had problems and sought his help. They went to ranch, from where PW5 took a picture of the scene and also saw 2

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anything destroyed. burnt huts. In cross-examination, he stated that he only saw one dead cow and that he saw other animals confined. It was his testimony that he took the picture from outside the ranch and that he did not see debris of

As a Commissioner foFLivestock'Health and Entomology he asked the District Veterinary officer, through a letter, to prevent the movement of the said cattle until they were free from the disease. He however admitted that required by law. Nicholas Kauta, PW6's was the Commissioner for Livestock Health and — \$ Entomology in the Ministry of Agriculture, Animal Industry and Fisheries, whose testimony was that he got information from PW1 that he was being added that it was against the Animal Disease Act to allow transfer of animals suffering from identifiable/epidemic disease to uninfected areas. *— I 0* the information of animal disease outbreak was not confirmed/verified as forced with their cattle out of the ranch yet the animals were sick. He

communication complaining that there were some unknown groups of people that had For the defence, Olinga Robert (DW1), L. C. 3 Chairperson Akokoro Subcounty, Apac District, testified that on the 25th June 2004 he received a from the Chairman L. C. II Kungu Parish, Akokoro,

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come with large heads of cattle and their animals were destroying crops in the area especially in the two villages of Tealal and Abudama. He had responded by asking the Chairman L. C. II to inform the pastoralists to go to his office on 28/06/2004, but the plaintiffs did not comply. Complaints from the people about crop destruction in the said villages had also been *-S* forwarded to the Resident District Commissioner (RDC).

plaintiffs to vacate the said ranch. He had visited the ranch and informed them of the meeting which was to be held on 5/7/2004 involving the RDC, — */V* **District Internal SecurityOfficer(DTSO), Chief Administration Officer (CAO,** Secretary for Finance, DPC, LC. Ill and opinion leaders from both Masindi and Apac. A grace period of two weeks was given to the pastoralists to animals would be met by the District. The pastoralists were expected to resolution was observed. He further testified that'an inter-district meeting between Apac and Masindi District Local Administration was arranged in order to persuade the vacate by 5/08/2004 and radio communication by the RDC was issued requiring the pastoralists to honour the said deadline. On 29/7/2004, the Minister of State for Animal Industry directed the RDC to ensure that the vacate. It was also resolved in the meeting that the cost of ferrying the

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DW1 also stated that on 4/08/2004, the Chairman L. C. II, Kungu wrote a letter stating that some pastoralists had moved while others had refused and the plaintiffs were among those that had refused to vacate. DW1 testified that he wrote to the RDC, Apac informing her that some of the pastoralists had not complied with the resolution of the security meeting held on 5/7/2004.

team went to the ranch and arrested the plaintiffs. In a meeting held on 19/8/2008, it was resolved that the pastoralists that had not observed the resolution of the security meeting should be arrested and charged with forceful entry into the Ranch. After this meeting, the **-** *t0*

It was DW1's testimony that at the time of the arrest, the animals had not' come back from grazing. He went ahead to state that there was no animal disease in the area and no communication from the Assistant Animal Husbandry Officer had been received by the office of the District Veterinary Officer (DVO). DW1 testified that if an outbreak is confirmed in any area, the DVO notifies the Commissioner Livestock Health and Entomology seeking authority to impose quarantine on the livestock. Unfortunately the reverse order happened here which was total departure from the known practice. He further stated that an outbreak usually affects a number of

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animals, but in the present case none of the animals died from the said disease.

defendants. was his testimony that pictures taken on the ranch should bear the famous —• Maruzi hill irrespective of the angle at which they were taken. He stated that the picture of the dead cow was another forgery exhibited by the plaintiffs as there was no evidence that the cow was actually killed by the DW1 stated further that the pictures alleged to have been taken from the ranch in issue were a total sham as there was no evidence to the effect. It

During cross examination, DW1 confirmed that a number of gardens were *-JV* destroyed by the plaintiffs' cattle and that there was no evidence of foot andmouth disease in the area that warranted quarantine.

In re-examination, DW1 confirmed the complaints received complaints from people in the neighbouring villages concerning destruction of their gardens. He stated that he visited the said gardens to prove the destruction.

It was his testimony that he saw the plaintiffs at the meeting held on 5/7/2004 where it was resolved that the pastoralists should vacate the

ranch in question. He further stated that he witnessed the ferrying of the cattle from Apac to Masindi.

whether they had movement permits. the Chairman L. C. III. 'A meeting was arranged whose purpose was tb confirm whether the pastoralists had authority to settle on the ranch and Ogang Charles, DW2, the District Councillor representing Akokoro Subcounty, confirmed DW1's testimony and added that in June 2004 he received information that a number of cows were being driven towards — Masindi Port ferry from Masindi District to which he notified the RDC and

invitation to the meeting to the locals; however, the local leaders tookpresence of the plaintiffs at the meeting. In re-examination, DW2 testified that there was no formal communication of "^0 efforts to inform and mobilize whoever was to attend. He confirmed

who crossed through the ferry with their animals when apprehended told the authorities that they were going to Soroti District and that she did not allow them to enter the ranch in issue. She also confirmed destruction of people's crops by the cattle in question. Mary Frances Owor, DW3, the then Resident District Commissioner, Apac District, confirmed DW1's testimony and also stated that the pastoralists

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*>* It was her testimony that she saw only 2 temporary huts built with grass and not the usual mud and wattle. She also stated that the allegations of tribal clashes in the area were false and unfounded.

**- 5** of an outbreak was not followed. Orech Kenneth, DW4, the District Veterinary Officer, Apac District, confirmed DW1 and DW3's testimonies regarding the meetings that were held and that there was no disease outbreak in the ranch. He further stated that the plaintiffs did not have a movement permit allowing them to pass through Apac. He further confirmed that the right procedure in case

During re-examination he stated that no permits were given to stray — ] 0 animals.

The last defence witness was Adoko Geoffrey, DW5 a ferry operator, who testified that on 19/8/2004 while on duty he received a team from Apac headed by L. C. Akokoro requiring him to have some people ferried to day. It was his testimony that a total of 697 heads of cattle were ferried to Masindi from Apac. Masindi. However, due to high traffic, the animals were ferried the next —

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stay permanently; they were there for the dry season and would go back to Masindi when the rains came. However, their destination was properly indicated as Apac in the Movement Permit and that when they got there they settled in the Government Ranch of Maruzi believing that there was nothing wrong .. ... with their settlement. They further told .court that their intention was not to °n the first issue as to whether the plaintiffs' occupancy of Maruzi Ranch was legal, it was Mr. Bagoroza's submission that the plaintiff reported their presence to L. C. Ill Chairperson and intimated to him that they were travelling to Soroti.

He submitted that as soon as the plaintiff settled in the said ranch, their " *I0* animals fell sick and their suspicion as to the cause of the disease was that their animals had come into contact with sick animals found on the ranch. He added that the plaintiffs received a letter from the Commissioner, outbreak on the ranch and to ensure that cattle particularly those of the plaintiff should be quarantined as a matter of urgency. Livestock Health and Entomology, Ministry of Agriculture, Animal Industries and Fisheries to the District Veterinary Officer, Apac alerting him of the said "

not possible He further submitted that even if the plaintiffs had wanted to move, it was because of the quarantine. On this premise the

ranch lawful. Commissioner's letter halting movement made the plaintiffs' stay on the

plaintiffs claimed to have had a Movement Permit, the DVO did not receive a copy of the same and no letter of no objection from Apac District had *IV* been received. Both Ms. Nabakooza and Mr. Ojuko did not agree. It was their submission that the plaintiffs' occupancy of the ranch was unlawful and that no authority had been granted to the plaintiffs. Neither had any permission *V?* been granted by DW3, the L. C. Ill Chairperson since they had merely intimated to him that they were going to Soroti. Further, although the

Ms. Nabakooza and Mr. Ojuko clearly elaborated on the procedure in case of an outbreak of animal disease more so foot and mouth disease as enumerated by the Defence witnesses DW1, DW2 and DW4, the District inform outbreak; the fatality and the presumed source of the disease and the number of dead animals. A surveillance team is sent to the affected areas public are the Commissioner, Livestock Health and Entomology about the Veterinary Officer, Apac. The procedure preceding quarantine was that on learning of an outbreak, the L. C. Chairperson of the area and the general informed. The District Veterinary officer is then required to

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to sample those exposed and document the results. These are then sent to the District so as to procure the necessary drugs. When the time elapses and the officials are confident that there is no disease, they request the Commissioner to lift the quarantine.

Counsel further submitted that there was no disease outbreak that warranted imposition of quarantine in the District. They also relied on Section 2 *(c) of the Animal Disease Act Cap 38* which is to the effect that;

*"Any person having in his or her possession or charge any animal affected suspected of being affected." with disease or suspected of being affected with disease shall as soon as possible notify an Administrative officer or Veterinary officer or Inspecting ----- officer, whoever is the nearest, of the fact of the animal being affected or* — 7 0

They further cited Section 3 of the Act which states:

*and Entomology." "Any Veterinary officer who is notified of any animal being affected or suspected of being affected by disease shall give such directions and take such steps as may be necessary for the purpose of ascertaining the* —-/£? *existence and nature of the disease, and he or she shall on being satisfied that the disease exists forthwith report to the Commissioner of Livestock*

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carried out by PW6, the continued occupancy of the plaintiffs at the ranch was not only unnecessary but out rightly-illegal. It was their submission that quarantine could only be issued when there was evidence of disease outbreak and after following the right procedure as provided for in the Animal Disease Act (supra). They stated that the Commissioner's letter would only be relevant where there was a disease outbreak, and that since no verification of the existence of disease was —

I have considered the evidence; submissions and the law relied on by Counsel on either side.

cattle was not authorized. Available evidence indicates that the plaintiffs informed the L. C. Ill Chairman they were headed for Soroti; but instead they camped at the Ranch. According to the submissions, the plaintiffs had from hoped to leave for Masindi when the dry season was over. Since the plaintiffs' entry into the Ranch was illegal, their stay was likewise illegal. — /S DW1, the L. C. Ill denied giving any authority to the pastoralists to enter the Ranch. There was no letter of no objection from the District Veterinary officer, Apac as was the requirement. The movement permit (Exhibit P1) the DVO, Masindi did not constitute authority to enter Apac or the I have found that the entry into Maruzi Ranch by the plaintiffs and their - /

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Ranch. It only permitted the plaintiffs to move their cattle from Masindi to Apac. The authorities in Apac had to permit entry into their land.

**5** authorities would have been the first to know. All the defence witnesses Animal Husbandry officer, who would notify the District Veterinary Officer. denied this fact. The information of an outbreak, according to the evidence, should have originated from the area officials, especially the Assistant — / *V* (DVO) of Apac; who would come to verify the claim. If the outbreak was confirmed, DVO would then write to PW6, the Commissioner, Livestock Health and Entomology seeking for the imposition of the quarantine. As it is the process was done in the reverse. It also contravened the provisions of the Animal Disease Act referred to above. The plaintiffs further stated that their animals got sick while at the ranch and they could not therefore move them to any other place. The weight of the evidence on record, mainly from the authorities in charge of the area, DW1, DW2 and DW3, and the DVO (DW4) does not support the claim that there was an outbreak of foot and mouth break. If it was there, the area

According to the evidence of DW1, imposing a quarantine was dated 2/8/2004, and yet the deadline for the pastoralists to leave the ranch was

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5/8/2004. It is clear that the intervention by the Commissioner which was not based on the facts on the ground was to protect the pastoralists from leaving the place.

Further still, PW6, the Commissioner testified that he based Exhibit P.3, the letter to the DVO instructing him to quarantine the animals, on information notified by the Animal Health officials of any such outbreak. received from the 1st plaintiff that he was being forced out of the Ranch yet the animals' were sick. He had not carried out any investigation or got.

There appears to be no credible basis for the quarantine to have been declared as the diseases were only imaginary.

I therefore find that the entry into the Ranch by the plaintiffs and their cattle was unauthorized and therefore unlawful, and their attempts to stay on the ranch on the pretext that there was an outbreak of Foot and Mouth Disease answered in the negative. were not based on the facts on the ground. The first issue is therefore

On the second issue as to whether the order for vacation was proper under the governing laws, Mr. Bagoroza submitted that the meeting held on the resolved that the order to vacate the ranch be 19/8/2004 where it was

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vacate government property and their refusal to vacate amounted to trespass. implemented was not only improper, but also a violation of Animal Disease Act and as such prayed that this issue be resolved in favour of the plaintiff. Counsel for the defendants, however, did not agree. They submitted that the plaintiffs were properly evacuated as they had been given notice to

I have already found that the entry by the plaintiffs on the Ranch was unlawful, and there was no evidence of any outbreak of disease as alleged. The Commissioner's letter was not based on any facts on the ground from the DVO as required by the law. It was just a conjunctive which cannot make the eventual eviction of the plaintiffs unlawful. This issue is answered in the affirmative.

On the third issue as to whether the defendants carried out the evacuation at Maruzi, Mr. Bagoroza submitted that the plaintiffs were attacked by a' many evacuated from the Ranch. Ms. Nabakooza and Mr. Ojuko did not dispute group of people who were led by the RDC, L. C. Ill, the police and very — &lt; villagers who ensured that the plaintiffs and their cattle were the fact that the defendants were involved in the evacuation of the plaintiffs. They submitted that the evacuation was rightly done as the defendants

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were executing lawful orders resulting from the directive of the Minister of State for Animal Husbandry requiring the pastoralists to move back to Masindi. The issue is answered in the affirmative.

photographs were allegedly taken by PW3, Mr. Lutu Moses, who went on a fact finding tour to the ranch. As to whether the plaintiffs lost their animals and household properties and equipment as pleaded, it was Mr. Bagoroza's submission that when the plaintiffs were arrested, there was havoc leading to destruction of property including bicycles, 500 heads of cattle, suits, shoes; bicycles, mattresses and clothing as per pleadings. He relied on the photographs of torched huts, and carcasses of dead animals, and a few cows that looked as if they had been gathered by villagers "for their own aggrandizement". The —

Counsel for the defendants however relied on the evidence of the defence ranch; that it was not true that a group of people armed with pangas vandalized, looted, destroyed property as alleged by the plaintiffs. It was their submission that the evidence on record indicated that a total of 697 heads of cattle were peacefully ferried to Masindi. witnesses and submitted that at the time of the arrest there was no single animal in the vicinity as they were still grazing at the southern part of the -/S

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could be owned by the plaintiffs with a pastoral nature of life. Counsel also disagreed with the evidence adduced by the plaintiffs regarding the existence of the said properties. They found it inconceivable that 64 mattresses, 120 shirts, 60 suitcases, 10 bicycles, 120 trousers, 60 ladies suits and 60 pairs of shoes among other items if at all they existed

defendants' evidence and testimonies especially on the fact that the temporary stay at the Ranch to look for pasture could own such vast. evidence of the torched hut showed remnants of a total grass hut, not evendefence witnesses evidence especially DW1, DW2, DW3, and DW5, the Ferry Operator, was that the cattle with the pastoralists were peacefully ferried back to Masindi port accompanied by the pastoralists. Indeed when I have considered the submissions of Counsel on either side after properly evaluating the evidence on the record. I am more inclined to believe the defendants were mere nomads looking for pastures. I find it inconceivable that pastoralists who admittedly came with their animals on the ferry for a ~ / V mud and wattle. PW5, the photographer saw only two burnt huts and one' dead cow. I am not convinced that the plaintiffs owned such properties at -*)£>* amounts of properties in temporary structures/huts. The photographic all under the given circumstances. The cattle was, according to the

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*u* The defence witnesses said they found no cattle at the place of arrest so none was killed, eaten, or driven away by the defendants. There is no credible evidence adduced to prove that any of the alleged properties of the plaintiffs, or cows were taken or destroyed by — ^5 the defendants or any other person. The pictures of burnt hut and dead they were only one carcass and two temporary huts. the plaintiffs were arrested the cattle had been taken by the plaintiffs' pastoralists to graze them. cow taken could not be connected to the..defendants. Even if they were,

As to whether the defendants are liable for the submitted that after arresting the plaintiffs, some killed/butchered while others were taken away alive. He further submitted' that the plaintiffs were denied a right to look after their cattle as were arrested and detained while the others workers were advised to flee. It was his submission that the plaintiffs lost all their cattle. loss, Mr. Bagoroza of their cows were *®*

Mr. Ojuko and Ms. Nabakooza, on the hand, submitted that the plaintiff did *IS* not sustain any loss by way of special damages and as such the alleged properties and loss of income are unfounded as the cattle were ferried to Masindi in the presence of police and Local leaders. A total of 697 heads

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of cattle were ferried to Masindi, the logical conclusion for this being that the animals multiplied during the two months spent on the ranch.

It was also their submission that the damages pleaded by the plaintiffs were merely speculative and no provable loss had been suffered. Counsel relied on the principle in *Obong and Anor Vs Municipal Council of Kisumu [1979] ea 91* where it was held that:

*"The law concerning exemplary damages in tort is authoritatively set out in Rookes Vs Benard where it was said that exemplary damages for any tort may only be awarded in two classes of cases and these are;*

- *a) Where there is oppressive, arbitrary or unconstitutional action by the IV servant of Government.* - *b) Where the defendant's conduct was calculated to procure him some benefit not necessarily financial at the expense of the plaintiff.*

*As regards the actual award, the plaintiff must have suffered as a result of punishable behavior, the punishment imposed in criminal proceedings if* — 45 *the conduct is to be taken into account. It seems the exemplary damages are penal and consolatory as had some been suggested."*

Counsel therefore submitted that the defendants were not liable for the loss which in any case did not exist and their claim for the damages was misplaced.

have produced a cow. As such they prayed for Shs. 2,500,000,000= for by the plaintiffs. the cattle lost, Shs. 5million for the goods destroyed and Shs. 10million for the brutality inflicted and costs for the suit. No authorities were relied upon On the alleged loss of 500 heads of cattle each of which would on average

Counsel for the defendant submitted that the defendants were not entitled to any damages. They relied on the principle in *Sebuliba Vs Co-operative* - /D *Bank[1982] HCB 129,* where it was held that:

*"The burden of proof in Civil cases lies upon the person who asserts or alleges. A party can only be called upon to dispute or rebut what has been proved by the other side. This is so because a person is interested in the -* **/s** *court believing his contention."*

discharge They further relied on the principle that he who alleges must prove and for the plaintiff to suggest that the negative must be proved by the defendant would be to impose an unnecessary burden on them, the plaintiff did not the evidential burden on them even on the balance of probabilities since they failed to prove their case and prayed that the suit be dismissed with costs.

I have considered the claims and submissions.

# **Special damages:**

The plaintiffs claimed the following as special damages in the plaint;

| a) | 1) | of 500 heads cattle | 150,000,000= | | |----|-----|-------------------------------------------------|-----------------|-----| | | 2) | bicycles 10 | 1,500,000= | | | | 3) | mattresses (30,000@) 64 | 1,920,000= | | | | 4) | blankets (20,000@) 64 | 1,280,000= | | | | 5) | 64 pairs of sheets (20,000@) bed | — 1,280,000= | iO | | | 6) | pillow cases 35 | 105,000= | | | | 7) | women 90 suits | 10,800,000= | | | | 8) | 120 shirts | 2,400,000= | | | | 9) | men suits 15 | 750,000= | | | | 10) | 120 trousers | 2,400,000= | -AS | | | 11) | 30 caps | 450,000= | | | | 12) | pairs of women shoes 60 | 1,200,000= | | | | | | | | | | 13) | of pairs shoes 60 men | 1,500,000= | | | | 14) | of 70 pairs children shoes 24 | 350,000= | | | | | | | |

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| 15) | children dresses 80 | | 1,200,000= | |-----|------------------------------------------------------------|---|-------------------------| | 16) | children shirts 60 | | 300,000= | | 17) | trousers 60 children | | 300,000= | | 18) | 60 suit cases | | 1,800,000= | | 19) | (70,000@) spray pumps 32 | | 2,240,000= | | 20) | bottles 55,000@ Rain grade spray, 32 | - | 1,760,000= | | 21) | Hi-tet cattle injection bottles 15,000@- 32 | | 480,000= | | 22) | of injection cartons samrine 120,000@ 32 | | 3,840,000= | | 23) | glass plates 150 | | 150,000= | | 24) | metal plates 100 | | - lO 100,000= | | 25) | plastic plates 150 | | 45,000= | | 26) | glass cups 100 | | 100,000= | | 27) | mugs 120 | | 120,000= | | 28) | folks 250 spoons respectively and | | 75,000= | | | Total | | - '5 187,297,000= | | | | | |

(b) The plaintiffs monthly income was about Shs. 2,160,000= (Two million one hundred and sixty thousand only) from selling milk, six jerricans every day, which they lost as a result of the acts of the agents/employees/servants of the defendants which the defendants are liable to pay from the date of 19/8/2004 up to when the matter is — *JO* finally settled.

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The overall principle on special damages is that they are by their nature compensatory. They must be specifically pleaded and strictly proved. A plaintiff who fails to satisfy those requirements of the law renders his own claim bad in law.

totaling Shs. 187,297,000=, there is no proof of the claim or how the values were arrived a'f. The claims are merely speculative and outrageous; apart from the fact that they were not proved. One wonders how pastoralists leading a nomadic life can move with such property to a ranch where they intend to stay for a short time, while living in temporary structures. The **I'D** items are probably meant to be for the plaintiffs' families and workers. Apart from the plaintiffs who were arrested for refusing to leave the ranch, the rest of the people and their cattle were peacefully evicted. No loss of cows or property was proved. It is noted that while the plaintiffs claim the value for all the above items —

In their written submission, the plaintiffs also made a claim for Shs. — 5 000,000= for the lost household utensils and the value of the huts destroyed in the process of the attack. On perusal of their plaint, I find that this claim is inconsistent with their pleadings as these particular claims were not included therein. No attempt was made to amend the plaint and

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basing on the fact that these particular expenses were not specifically pleaded and the principle that a party must be restricted to his/her pleadings. See *Inter Freight Forwarders (U) Ltd Vs EADB SCCA No. 13 of 1993,* these claims therefore fail.

In court's view, the claims for special damages have not been proved and *~~* \*3 as such the claim is rejected.

#### **Exemplary damages:**

No case has been made out for exemplary damages. As already stated Appeal upheld the principle that exemplary damages for any tort may only be awarded where there is oppressive, arbitrary or unconstitutional action calculated to procure him some benefit not necessarily financial at the did was lawful. expense of the plaintiff. As regards the actual award, the plaintiff must have suffered as a result of the punishable behaviours; the exemplary by servants of Government or where the defendant's conduct was above, in *Obongo and Anor* Vs *Municipal Council of Kisumu (supra),* Court of **-lO** damages are penal not compensatory. I find no behavior of the defendants that can be classified oppressive, arbitrary or unconstitutional. What they

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The prayer for exemplary damages is therefore untenable and must fail.

## General damages;

These are awarded at the discretion of court; the discretion must however be exercised judiciously. Such damages meant to address the by the claimants. They were required to vacate the ranch, they were given notice to that effect but they remained adamant even after issuance of press release. Instead the defendants were inconvenienced by the plaintiffs as the defendants met the cost of ferrying the pastoralists and **- b** their cattle, which included the plaintiffs' cattle. inconvenience endured by the plaintiff as a result of the tortuous actions of the defendant. Unfortunately 1 do not see any inconvenience so suffered

loss. The principle laid down in Kasibo *Joshua Vs The Commissioner of Customs and URA HCMA 844 of 2007* that the general principle in the award of general damages is that they are pecuniary compensation given on proof of a wrong or breach. In such a case the claimant must be able to prove some

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awarded. In the present case the plaintiffs have not proved that they suffered any loss, as their evidence was marred by inconsistencies and lies, and no merit has been found in their case. General damages are, therefore, not

In the final result, the case against the defendants is hereby dismissed with costs.

It is so ordered.

**Elizabeth Musoke**

**JUDGE**

22/02/2012

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## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA HCCS NO. 43 OF 2005

$\alpha = \beta_1 - \beta_2$

| 1. RUTAAMA GEOFREY 2. MISANGO ABEL | | |---------------------------------------|--| | VERSUS | | | 1. ATTORNEY GENERAL | | | 2. APAC DISTRICT ADMINISTRATION ) | | | | |

#### **DECREE**

This suit coming before Honorable Justice Elizabeth Musoke this 23 day of February 2012 for final disposal in the presence of Bagorogoza David counsel for the plaintiffs and in the absence of Counsel for the defendants it is hereby decreed that the suit be dismissed and judgment is entered in favour of the defendants with costs.

GIVEN UNDER MY HAND AND THE SEAL OF THE COURT THIS

REGISTRAR

$\mathbf{1}$

$\frac{100}{284}$ $\frac{600}{9915}$