Muhairwe v Tweshengyereize (Civil Appeal 53 of 2020) [2024] UGHC 674 (12 July 2024)

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBARARA HCT-05-CV-CA-0053-2020

*(Arising out of Ntungamo Chief Magistrate's Court Land Case no. 33 of 2016)*

### MUHAIRWE NELSON ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT VERSUS

#### TWESHENGYEREIZE ISHOKYE FRANCIS ::::::::::::::::::::::::: RESPONDENT

*(Being an Appeal from the Judgment and Orders of His Worship Magomu Nasuru, Magistrate Grade One sitting at the Ntungamo Chief Magistrate's Court dated 12th February 2019)*

## BEFORE: HON LADY JUSTICE JOYCE KAVUMA

#### JUDGMENT

#### Introduction.

[1] This appeal arose from the lower court judgment where the trial Magistrate, on the evidence before him found that the transaction between the parties was a land sale agreement and not a loan agreement and that the Appellant was a trespasser onto the suit land.

#### Background.

[2] From the plaint filed by the Respondent at trial, his claim was for a declaration that he was the rightful owner of the suit land; a declaration that the forceful entry by the Appellant onto the suit land was fraudulent, illegal and unlawful and was therefore a trespasser thereon; a declaration that the suit land exclusively belonged to him; a permanent injunction restraining the Appellant from interfering with the Respondent's quiet possession and occupation of the suit land; general, punitive and special damages plus interest thereon be awarded against the Appellant and costs of the suit.

[3] The Respondent alleged that sometime in the year 2009, he was approached by his neighbour the Appellant with an intention to buy his land located at Kirema village, Kyanyampuno parish, Nyabihoko sub county, Ntungamo district measuring approximately 5 acres. That after confirmation that the land indeed belonged to the Appellant, on 10th March 2009 agreed and purchased the said land from the Appellant at a consideration of UGX 20,000,000/= which he paid in cash. That the two executed a land sale agreement. That in 2010, he planted trees on one part of the land and hired out the remaining part. That the Appellant's elder brother a holder of letters of probate for the estate of the late GW Kappa the Appellant's father informed the Respondent that the said land fell within LWM/9286, VOL 3047, Folio 9 Plot 13, Kajara, Ntungamo which was part of the estate. That on 20th August 2015, the Respondent lodged a caveat on the said certificate of title to protect his interest. That sometime in July 2016, the Appellant cut down about 100 trees on the suit land belonging to the Respondent, constructed on the suit land and further uprooted boundary marks. That sometime in September 2016, the Appellant set part of the Respondents trees on fire.

[4] In his defence, the Appellant stated that he never sold the suit land to the Respondent but rather borrowed from him UGX 9,500,000/=. That after, the Respondent insisted that the agreement be written as if it was for sale of land whereas not. That when he got the money and took it to the Respondent, he rejected it and instead alleged that he had bought the land. That at one time, the Respondent was a manager looking after the suit land and had hired it out in that capacity.

[5] After full trial, the learned trial Magistrate found that the transaction between the parties was a land sale agreement and not a loan agreement and therefore the Respondent was the rightful owner of the suit land and that the Appellant was a trespasser onto the suit land. He decreed a permanent injunction against the Appellant. He further awarded the Respondent UGX 5,000,000/= in special damages, UGX 2,000,000/= general damages and costs against the Appellant. The Appellant being dissatisfied with the above decision preferred the instant appeal on 10th July 2020 upon the following grounds;

- 1. The learned trial Magistrate Grade One erred in fact when he failed to consider the Appellant's written submission in writing up his judgment when they were on court record. - 2. The learned trial Magistrate Grade One erred in law and fact when he held that there was a valid sale between the Appellant and the Respondent: - (i) Upon the Respondent having made a diligent search to verify ownership. - (ii) Over a piece of land registered in the names of Rev. Charles Kapson.

- 3. The learned trial Magistrate Grade One erred in law and fact when he ignored the uncontroverted evidence of a certificate of title and declared the suit land to belong to the Appellant. - 4. The learned trial Magistrate Grade One erred in law and fact when he declared the Appellant a trespasser on the suit property. - 5. The learned trial Magistrate Grade one erred in law and fact when he awarded excessive special damages to the Respondent which had not been proved. - 6. The learned trial Magistrate Grade One erred in law and fact when he improperly and wrongfully evaluated the evidence on record thereby reaching wrong conclusions.

The Appellant prayed that this court allows the appeal, the judgment and orders of the lower court be set aside, the transaction between the Appellant and Respondent be declared illegal, that the land formed part of the estate of the late George William Kappa and that the Appellant be awarded costs for the appeal and the lower court.

## Representation.

[6] The Appellant was represented by Mr. Nuwagaba Collins while the Respondent was represented by Mr. Tumwebaze Emmanuel. Both counsel proceed by way of written submissions which I have considered.

## The duty of this court.

[7] As the first appellate court, this court is duty bound to re-evaluate all the evidence that was available to the trial Magistrate and make its own inferences on all issues of law and fact. (See Fr. Narcensio Begumisa & Others vs Eric Tibebaaga SCCA no. 17 of 2002, Kifamunte Henry vs Uganda, Criminal Appeal No. 10/97; Bogere Moses and Another vs Uganda, Criminal Appeal No. 1/97, Pandya vs R (1957) EA 336, Ruwala vs R (1957) EA 570 and Coglan vs Cumberland (1898) 1 Ch. 704).

I shall therefore proceed to re-evaluate the evidence as the law requires and make my own inferences on all issues of law and fact.

## Analysis and decision of the court.

# Ground 1: The learned trial Magistrate Grade One erred in fact when he failed to consider the Appellant's written submission in writing up his judgment when they were on court record.

[8] On this ground of appeal, counsel for the Appellant submitted that the trial court allowed both counsel to file submissions before the end of November 2018 and the matter was adjourned to 12th February 2019. That when they prepared their submissions and took them to court, they were informed by the court clerk that the file had been taken away by the trial Magistrate to prepare judgment. That on 12th November 2018 having been allowed to file the submissions, they filed their submissions but to their dismay, the trial Magistrate in his judgment stated that it was only the Respondent who had filed written submissions. That the judgment was delivered in total disregard of the said submissions and according to counsel, should the trial Magistrate

have considered the said submissions, he would have arrived at a different decision.

In reply, counsel for the Respondent submitted that the judgment of the lower court was based on the evidence adduced before the court and not the counsel's submissions. That failure to consider the Appellant's submissions did not occasion any injustice to the Appellant.

[9] There exists no legal requirement in our laws that compels parties to a suit to file written submissions. Submissions in suits may therefore be at the discretion of the court and may take the form of either written or being oral in nature. Written submissions have however become a norm within this jurisdiction as a means of expediting suits.

Written submissions are intended to save on judicial time and also to enable the parties or their advocates to condense their thoughts on the matter at their own and in good time. They are therefore intended to give the parties latitude to explain their respective cases with ease. (See Ali Ngumbao Baya & 2 ors vs Director of Public Prosecution [2016] eKLR). It therefore follows that; submissions play a crucial role in any case.

I agree with the submissions of counsel for the Respondent and it is indeed true that cases are decided based on the evidence adduced before court.

I have on previous occasion held that the place of submissions in any case is secondary in nature as submissions cannot take the place of evidence. Submissions are merely a way of counsel trying to convince the court that they do have a better case than that of the adversary. A case can and may be decided without hearing or reading submissions but on evidence presented. (See Tumusiime Joab and anor vs San Sara Agro Limited (HCT-05-CV-MA-0186-2022) (unreported) and Daniel Toroitich Arap Moi and another v. Mwangi Stephen Murithi and another [2014] eKLR).

Given the fact that this court as the first appellate court is duty bound to re-evaluate all the evidence that was available to the trial Magistrate and make its own inferences on all issues of law and fact, I will do so in a bid to ascertain whether in not considering the Appellant's submissions, injustice was occasioned to them by the learned trial Magistrate.

This ground of appeal is therefore with no merit.

Ground 2: The learned trial Magistrate Grade One erred in law and fact when he held that there was a valid sale between the Appellant and the Respondent:

- (iii) Upon the Respondent having made a diligent search to verify ownership. - (iv) Over a piece of land registered in the names of Rev. Charles Kapson.

[10] On this ground, counsel for the Appellant made arguments on both sub-heads separately. On the first, that is; Upon the Respondent having made a diligent search to verify ownership, it was submitted that;

The land in dispute forms part of the land comprised in LWM/9286, VOL 3047, Folio 9 Plot 13, Kajara, Ntungamo registred in the names of Charles Kappson as the administrator of the estate of the late George William Kappa. That this fact was not disputed by the Respondent. That the fact that the Respondent was purchasing titled land, he had to do all the necessary due diligence to establish the existence of the land, ownership of the land and the capacity of the vendor to deal with the land. According to counsel, the Respondent having abstained from making inquiries for fear of learning the truth could not later turn around and claim to have acquired good title in the land. That the Respondent had a duty to establish whether the estate was divided among the beneficiaries and whether the Appellant had the capacity to enter into such transactions.

In reply to this sub-head, counsel for the Respondent submitted that the ground was a clear departure from the pleadings of the Appellant. That the Respondent only got to know that the land was titled after purchasing it. That there was no way that the Respondent would have made a search in the land registry without the Appellant disclosing the land was titled. That by having the Appellant's family members sign on the purchase agreement, this was due diligence. That the Appellant's elder brother was the one that authored the agreement while his wife, mother and paternal aunt signed and witnessed it. That the Appellant in his defence did not raise the issue of the suit land not belonging to him, that he instead stated that he had no capacity to sale any part of it without express authority from the registered proprietor. That the Appellant acknowledged the sale agreement but claimed it was a money lending transaction but he and his witnesses failed to prove this.

## Resolution.

[11] As I observed at the beginning of this judgment, the Respondent brought the suit before the trial court for a declaration that he was the rightful owner of the suit land having purchased it from the Appellant at a consideration of UGX 20,000,000/= on 10th March 2009. That the subsequent actions of the Appellant after the said sale amounted to trespass.

The Appellant's defence from his Written Statement of Defence filed on 8th November 2016 was that he never sold the land to the Respondent because the land was registered in the names of a third party and that the transaction between him and the Respondent was a money lending transaction. That having borrowed UGX 9,500,000/= from the Respondent, he insisted the two execute an agreement of sale of land whereas not.

At trial, counsel for the parties in the instant suit on 1st February 2017 filed a joint scheduling memorandum in which the following issues were framed and agreed upon for resolution by the trial court; - 1. Whether the transaction between the plaintiff and the defendant was for sale of the suit land or a money lending transaction. - 2. Whether the defendant is a trespasser on the suit land. - 3. What remedies are available to the parties?

As a matter of fact, the learned trial Magistrate in resolution of the suit before him strictly followed the above issues as raised by both counsel.

[12] The law is now settled, a party's evidence must support their pleadings and any departure by a party's evidence from his or her pleadings is a good ground for rejecting the evidence. (See AW Biteremo vs Damascus Muyanda (Supreme Court Civil Appeal no. 15 of 1991) and Interfreight Forwarders (U) Ltd vs East African Development Bank (Supreme Court Civil Appeal no. 33 of 1992).

In the instant case, it would therefore follow that the evidence relied upon by the parties had to strictly relate to their pleadings; that is; on the part of the Respondent that he bought the suit land from the Appellant and on the part of the Appellant that the transaction he entered into with the Respondent was a money lending transaction and not a land sale transaction having not denied making an agreement with him as per his pleadings.

Order 6 Rule 7 of the Civil Procedure Rules provides that;

"Departure from previous pleadings. No pleading shall, not being a petition or application, except by way of amendment, raise any new ground of

claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading that pleading."

In Interfreight Forwarders (U) Ltd (supra) it was observed by the court that;

> "The system of pleadings is necessary in litigation. It operates to define and deliver with clarity and precision the real matters in controversy between the parties upon which court will be called upon to adjudicate between them. It thus serves the double purpose of informing each party what is the case of the opposite party which will govern the interlocutory proceedings before the trial which the court will have to determine at the trial. A party will not be allowed to succeed on a case not set up by him and be allowed at the trial to change his case or set up a case inconsistent with what he alleged in his pleadings, except by way of amendment."

[13] The evidence before the learned trial Magistrate as brought by the parties at trial supported their pleadings.

However, I found a divergence in the said pleadings and this ground of appeal where counsel for the Appellant seeks to attack the validity of the land sale instead.

I am in total agreement with the submissions of learned counsel for the Respondent that this ground is a direct departure from the pleadings and evidence in the trial court. The trial Magistrate in the instant matter was required by the parties to examine the evidence before him and ascertain whether or not it supported a finding that there was a land sale or loan transaction between the parties.

From my reading of the trial Magistrate's judgment, this is what he rightly did.

[14] It is a settled principle of evidence that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts, must prove those facts exist. (See Section 101 of the Evidence Act). It is said that this person has the burden of proof. This is the person whose suit or proceeding would fail if no evidence at all were given on either side. (See Section 102 of the Evidence Act). The instant matter, being civil in nature, the standard of proof is on a balance of probabilities. (See Miller vs Minister of Pensions [1972] 2 All ER 372).

The Respondent being the one that initiated the instant suit in the trial court, had the duty as the one who wished to rely on the fact that the transaction, he executed with the Appellant was a land sale agreement and not a loan agreement to satisfy the trial court that those facts were probably true. (See further Section 103 of the Evidence Act). He had to first prove its existence and secondly its validity in order to rule out any possibility of it being a loan agreement disguised as a sale agreement as it was alleged by the Appellant.

[15] To prove his case at trial, the Respondent brought four witnesses.

PW1 Tweshengyerize Francis Ishokye testified in chief that the Appellant sold to him the suit land on 10th March 2009 for which he paid a cash consideration of UGX 20,000,000/=. That the sale was done in the presence of the Appellant's mother, wife, paternal aunt and the Respondent's wife. That the two executed an agreement which was witnessed and the LC1 chairperson also confirmed it. That he had never engaged in any money lending transaction with the Appellant.

In cross-examination he testified that when the land sale agreement was made, he took eight months to have it confirmed by the LC chairperson because the previous one had died. The sale agreement without a stamp of the LC chairperson was received by the trial court as DExh 2.

PW2 Rubarema Kapson David testified in chief that the Appellant was his young brother and had sold the suit land to the Respondent. That he was present when the Appellant was selling the land to the Respondent. That the Respondent purchased the land at UGX 20,000,000/= in cash. That he saw the money and counted it himself. That it was him that wrote the agreement on 10th March 2009. That the Appellant had inherited the land from their late father George William Kappa and even in the Will, he was given the said portion. That the original agreement was given to the heir Rev. Charles Kapson while the beneficiaries retained photocopies. The land sale agreement was admitted by the trial court as PEX1.

In cross-examination he testified that after his father passing on, his estate was divided among them and it comprised of one single certificate of title which was in the names of their late father.

PW3 Buchoni Pison testified in chief that in the year 2010, the Respondent gave him the land to cultivate thereon millet. He maintained his testimony in cross-examination.

PW4 Tumwesigye Yosam testified in chief that he was the LC1 chairperson of Kirama cell, Kanyampunu, Nyabihoko, Ntungamo. That he came to know about the agreement made by the parties when they came to his place requesting him to confirm it. That he confirmed the agreement in 2010. That at that time, the Respondent was using the suit land having planted trees on it. That before confirming the said sale agreement he visited the land. That the land belonged to the Appellant before the sale as the portion had been left to him by his brother. That he has never seen a money lending agreement between the parties.

In cross-examination he testified that he confirmed the agreement in the presence of both parties.

[16] The Appellant also brought four witnesses during trial.

DW1 Muhairwe Nelson testified that he had never sold land to the Respondent but just entered into a money lending transaction where he lent him UGX 9,000,000/=. That they made an agreement not for UGX 9,000,000/=. That he was in need of money so he just made the agreement. That he was present when his mother was signing the agreement. That the agreement was authored by PW2. That PW2 too signed the agreement and he knew the purpose of the agreement. That he explained to his mother the purpose of the agreement before signing it. That after signing the agreement he was given UGX 5,000,000/=.

That the land that the Plaintiff described to have been bought belonged to the family of the late George William Kappa his father. That his brother Rev. Charles Kapson obtained Letters of Administration in regard to the land. That it was agreed that he pays the whole money after one year with an interest of UGX 500,000/=. That he failed to pay the said money. That when he got the money and tried to repay it, the Respondent refused the money and insisted that he now wanted the land.

In his cross-examination, he maintained that it was a loan which he obtained from the Respondent. That his father left a Will which was read to them at his funeral. That in the Will he did not remember what he was given. That he was using part of the land in dispute. That the agreement was authored by PW2. That PW2 also knew the purpose of the agreement as a loan. That he lied to his mother about the agreement before she signed it. That it was true that he was cutting trees on the suit land and he prevented the Respondent from using the land. That for six years he had not paid the loan.

DW2 Kamugyenga Constance the Appellant's mother testified in chief that the Respondent lent the Appellant money. That whereas she did not remember the agreement, she remembered signing it and the document was for a loan and not a sale agreement.

In her cross-examination she testified that she signed on a loan agreement. That had the document been read to her before signing as a sale agreement, she would not have signed it. That she did not know how to read but could write her name. That she did not know the boundaries of the suit land. That she didn't know the author of the agreement.

DW3 Rev. Canon Kapson Charles testified in chief that the Appellant was his step brother. That the Appellant did not own any piece of land and was staying within the land he was an administrator of. That from the Will left by his late father, none of them was allowed to sell land. That from the inventory he filed with this court, the Appellant was given the northern part of the land. That the land in dispute comprised the Appellant's portion of land, that of Baguma and their mother. That the Respondent had never utilised the suit land.

In cross-examination, he testified that he did not know the exact land in dispute. That PW2 authored the sale agreement. That he got to know that the land in dispute had been sold in 2014.

DW4 Kekiyenje testified in chief she was the paternal aunt of the Appellant. That the two parties exchanged money to returned. That she signed the document without reading it. That the children had never shared the land in the title.

In cross-examination she maintained that it was a loan agreement but she did not know how much it was. That she signed the agreement to confirm exchange of money because the Respondent had refused to give the Appellant money without the signature. That had she known it was a land sale agreement, she wouldn't have signed.

[17] On the first issue which relates to this portion of the appeal, the learned trial Magistrate at page 6 of his judgment stated that;

"It is not in dispute that the Plaintiff and the Defendant did transact and a document was written and signed between them. It is also not in dispute that this transaction in one way or the other touches the land belonging to the estate of the late William Kappa which is now registered in the names of DW3 as an administrator. It is also agreed that the defendant, DW2 and DW3 did sign on an agreement PE1. What is in dispute is whether the transaction between the plaintiff and the defendant was for sale of land or money lending. The plaintiff submits that the transaction was for sale of land while the defendant argues it was for money lending."

[18] In similar terms, I agree with the finding of the learned trial Magistrate above. From the evidence on the trial court record, this court has no doubt that the Appellant and Respondent entered into a valid contract on 10th March 2009 for the sale of the suit land for a consideration of UGX 20,000,000/= admitted by the trial court as PEXH 1.

It was indeed true as stated by the learned trial Magistrate that what was left was to determine whether there was any evidence in the said contract that suggested that it was not a sale but a loan agreement.

[19] A valid contract is said to exist where the agreement is made with the free consent of the parties with capacity to contract for lawful consideration and with a lawful object coupled with the intention of the parties to be legally bound. (See Section 10(1) of the Contracts Act, 2010).

No evidence was led before the trial court to suggest that any of the parties to this appeal lacked the requisite legal capacity to enter into the said contract of land and to also make the sale in respect of the suit land. Furthermore, nothing on the court record suggests that neither of the parties gave their consent unwillingly. They were therefore legally bound by its terms.

[20] The learned trial Magistrate at page 7 of his judgment went ahead and referred to various portions of the land sale contract in a bid to ascertain the intention of the parties to it and concluded that;

> "It is clear that the agreement was a land sale agreement and I find the paragraph specify the intentions of the agreement which to my interpretation was a sale of land. There is nothing confusing about the said paragraph."

[21] In construing contractual provisions, it is the law that the object of the court is to give effect to what the contracting parties intended and not rewrite the contract for the parties by substituting what the court thinks ought to have been fairly agreed between the parties. The court must read the terms of the agreement before it as a whole giving the words their natural and ordinary meaning. (See Fina Bank Limited vs Spares and Industries Ltd [2000] 1 EA 52, Sirus International Insurance Company Limited vs FAI General Insurance Ltd and Ors [2004] 1 WLR ## 325 and Bank of Credit and Commercial International SA (In Liquidation) vs Ali [2001] 1 ALL ER 96).

The exercise of interpretation therefore identifies what a reasonable individual would have understood the parties to have meant by the language used. (See ICS vs West Bromwich Building Society [1998] 1 WLR 896 at 912).

The evidence of negotiations or of the parties' intentions ought not to be received by the court. (See Prenn vs Simmonds [1971] 3 ALL ER 237).

[22] PEX1, the contract that was entered into by the parties to this appeal stated in part verbatim as follows;

## "RE: SELLING OF LAND TO MR. TWESHENGYERIZE FRANCIS ISHOKYE

I MUHIRWE NELSON have sold to Mr. Tweshegyerize Francis my land located in Kirama Cell Kanyampumo Parish Nyabihoko Sub-County Kajara County in Ntungamo District.

I have sold it to him at Ugx. 20,000,000/= (twenty millions only) and he has paid it all in cash…"

It is now settled that where parties express an agreement in a contractual document neither of them can subsequently deny the existence of the facts and matters upon which they have agreed at least so far as concerns those aspects of their relationship to which the agreement was direct. The contractual terms rise an estoppel. (See Kavuya and two others vs Wakanyira (Supreme Court Civil Appeal no. 2021); Peekay Intermark Ltd and Harsh Pawani vs Australia and New Zealand Banking Group Ltd [2006] EWCA Civ. 386).

Everything that the parties wrote in the agreement is what the parties intended and thus the court cannot hold otherwise. (See Agaba Rogers Kyalisiima vs Senfuka Bagenda (High Court Land Cause no. 31 of 2017). It therefore follows that in the instant case, the Appellant was estopped from adducing any evidence to contradict his written agreement with the Respondent.

[23] PEX1, indicates that it was witnessed to by various people.

PW1 the Respondent testified that on 10th March 2009, the Appellant sold to him the suit land at a consideration of UGX 20,000,000/= and that the two executed an agreement PEX1 in the presence of Appellant's mother, wife, paternal aunt and the Respondent's wife which was witnessed by PW4.

PW2 Rubarema Kapson David who wrote the agreement and subsequently witnessed it corroborated the evidence of the Respondent when he testified before the trial court that what he wrote was a land sale agreement for his young brother the Appellant and he was present when the two exchanged money which he also counted pursuant to the terms of the contract.

DW2 Kamugyenga Constance the Appellant's mother also corroborated the Respondent's evidence when she testified to signing the agreement but acknowledged that the Appellant did not tell her the purpose of the agreement. According to her, had she known the purpose of the agreement, she would not have appended her signature onto it. This was in contradiction with the testimony of the Appellant who claimed that he had explained to his family members the said agreement.

DW4 Kekiyenje the Appellant's Aunt also further corroborated the Respondent's story by testifying that she also signed the agreement and that she did not read the agreement before signing it. When crossexamined she however stated that she signed a loan agreement.

[24] The above consistent evidence led by the Respondent in view of this court, on a balance of probabilities favoured his version of the pleadings before the trial court; that is, that the transaction was a land sale agreement and not a loan agreement.

It is worth noting further that, when the evidential burden shifted onto the Appellant who required the trial court to believe his version of facts which he alleged in his written statement of defence that the transaction was a loan agreement, the witnesses that testified on his behalf were not sure of the kind of transaction that he entered into and neither did the Appellant produce contrary evidence to indicate that what he entered into that day was a loan agreement and not a land sale agreement to create any probity in the Respondent's evidence.

It would therefore be the case that having bought the suit land from the Appellant on 10th March 2009, any acts of the Appellant in relation to the suit land that were detrimental to the Respondent as the proprietor of the suit land amounted to trespass.

I therefore do not find merit in this entire ground of appeal. This being the case, grounds 3, 4 and 6 of this appeal are also settled.

Ground 5: The learned trial Magistrate Grade one erred in law and fact when he awarded excessive special damages to the Respondent which had not been proved.

[25] On this ground, counsel for the Appellant submitted that whereas the Respondent in his pleadings claimed special damages of UGX 5,000,000/= being the value of 100 trees allegedly cut down and burnt and that each tree cost UGX 50,000/= and also claimed UGX 1,000,000/= being the value of banana stems allegedly cut down, there was no evidence produced at trial to support the said claims. Further that at the locus in quo, there was no observed cut down banana stems.

In response, counsel for the Respondent submitted that the Respondent at the locus in quo showed the trial court tree stamps of eucalyptus trees that had been cut by the Appellant and his agents. That indeed the trial Magistrate also observed the tree stamps in his record of proceedings. That the tree stamps were counted and equalled to 320 stamps in total. That also the Appellant admitted to having cut the said trees and therefore the award of UGX 5,000,000/= was justified in the circumstances.

[26] It is the law that an appellate court will not interfere with an award of damages by a trial court unless the trial court has acted upon a wrong principle of law or that the amount is so high or so low as to make it an entirely erroneous estimate of the damages to which the plaintiff is entitled. (See Crown Beverages Ltd vs Sendu Edward (Supreme Court Civil Appeal No. 01 of 2005 per Order JSC).

Damages are the pecuniary compensation obtainable by success in an action, for a wrong which is either a tort or a breach of contract. (See McGregor, Harvey. (1988). McGregor on damages. London: Sweet & Maxwell at page 3 and Broome vs Cassel & Co. [1972] A. C. 1027, 1070E per Lord Hailsham L. C.).

[27] Pecuniary damages or special damages are those which are awarded and designed to make good the losses which are capable of being calculated in terms of money and their object is to indemnify the successful Plaintiff for the expenses which he or she had already incurred or is likely to incur in respect of the injuries suffered by him in the accident.

Special damages as a matter of law must be pleaded and proved. Special damages however need not always be proved by production of documentary evidence. Cogent verbal evidence can also do. (See Gapco (U) Ltd vs A. S Transporters Limited (Supreme Court Civil Appeal no. 7 of 2007) and Kampala City Council vs Nakaye [1972] EA 446).

[28] In the instant matter, according to the Respondent's plaint filed in the trial court on 3rd November 2016, he pleaded special damages under paragraph 6 as follows;

## "Particulars of special damages.

(a)UGX 5,000,000/= the value of 100 trees cut down and burnt by the Defendant each at UGX 50,000/=. (b)UGX 1,000,000/= the value of the banana stems cut down by the Defendant."

At trial, the Respondent, according to pages 2 and 3 record of proceedings stated that;

> "I planted thereon trees…some of the trees I planted are there but about 425 trees were cut by the defendant without my consent and the other part he set it on fire…I have some photos of the cut trees…The trees cut were…each valued at 50,000/=. They were 7 years old and they were eucalyptus trees.

> I also had banana plantations but he also cut them down. They were 127 banana plants were cut down each was valued at 20,000/="

The record indicates that he maintained the above testimony in crossexamination at page 5 of the record of proceedings. PW3 at page 11 of the record of proceedings testified that the Respondent brought some tree seedlings and planted them on the suit land in the year 2010.

This evidence remained unchallenged in cross-examination. PW4 further testified at page 12 of the record of proceedings that the Respondent was using the suit land by planting trees and he saw people he had hired planting the trees. The evidence also remained unchallenged in cross-examination.

When the trial court visited the locus in quo on 5th June 2018, at page 30 of the record of proceedings, the Respondent is recorded showing the trial court tree stems that were destroyed. The trial Magistrate further noted that;

> "Stems of cut trees seen at the upper side of eucalyptus trees. Many trees seem that of mature medium size."

It is also shown at page 31 of the record of proceedings the Appellant stating that it was him that cut the trees.

At page 10 of his judgment, the learned trial Magistrate having properly stated the law on award of special damages stated that;

> "The plaintiff in his pleadings and submissions pleaded and claimed for 6,000,000 as special damages for the trees cut. He valued each tree at 500 and 1,000,000 was for the value of bananas. While at locus the plaintiff showed court cut stems of trees that were cut. The plaintiff has therefore proved the special damages of the trees cut however he has not proved that for the bananas. Court therefore awards the plaintiff special damages of 5,000,000 for the forest."

If therefore find the above reasoning and conclusion of the trial Magistrate sound and based on the evidence before him at the trial as seen above.

In the circumstances, I would not fault the learned trial Magistrate in the award of special damages that he made. I would, therefore disallow this ground of appeal.

In the final result, I find no merit in the instant appeal and accordingly dismiss it with costs here and in the court below.

I so order.

Dated, delivered and signed at Mbarara this 12th day of July 2024.

Joyce Kavuma Judge