Musiimenta & Another v Nambwenu & Another (Civil Suit 33 of 2022) [2023] UGHC 436 (31 March 2023)

Full Case Text

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT RUKUNGIRI (FORMERLY KABALE) CIVIL SUIT NO.033/2022 FORMERLY CIVIL SUIT NO.02/2020 1. DR. CLIFF MUSIIMENTA 2. PAMELA KYOMUGISHA MUSIIMENTA:::::::::::::::::::::::::::::::::::: **VERSUS**

#### MARGARET NAMBWENU

# 2. CLEANER AIR ACTION COPRPORATION::::::::::::::::::::::::::::::::::::

### BEFORE: HON. JUSTICE TOM CHEMUTAI, JUDGE.

The plaintiffs, who are both Ugandans in the diaspora (USA) are a married couple. The 1st defendant is a female adult Ugandan, resident of Kanungu District and the 2nd defendant is a foreign Company duly registered and carrying on its business in Uganda. It is the plaintiffs' case that they are registered proprietors of land comprised in Kinkizi, Block 81, plots 28 & 76 and unregistered land in Rwenyerezo village, Nyarurambi parish, Katete Sub County, Kanungu District jointly referred to as the suit land. It is the plaintiffs' case that the suit land has a vast forest of trees for commercial exploitation.

That sometime in 2019, the plaintiffs discovered from numerous digital platforms relating to tree planting projects in Uganda, that the suit land was being held out as part of the tree planting projects sponsored and promoted by the 2nd defendant.

It is the plaintiffs' case that the 1st defendant represented herself as the owner of the suit land, as a result of which she signed a carbon- credit sale agreement with the 2nd defendant on 7th June, 2007 committing the trees on the suit land to the 2nd defendant for tree planting projects

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for monetary consideration, to the detriment and without knowledge and consent of the plaintiffs.

The plaintiffs seek mesne profits, general damages and aggravated damages, interest and costs.

The defendants on the other hand refuted the plaintiffs' claims. The 1st defendant's claim is that she was a caretaker of the plaintiffs' land (suit land) and she had never deprived the plaintiffs of their trees and land or connived with the 2nd defendant to defraud the plaintiffs of money or property as alleged. She prayed that the suit be dismissed with costs.

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Meanwhile, the 2nd defendant contends that she did not connive with the 1st defendant because once the trees are grown the 2nd defendant's interest is created and the money it gives to people is meant to encourage them to plant more trees and not to cut them while still young. It is further their claim that the 2nd defendant was not fraudulent when she paid the 1st defendant because the 1st defendant presented her group that claimed to be caretakers of the trees. The defendants prayed for the suit to be dismissed with costs.

#### Summary of evidence.

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The plaintiffs relied on the testimony of Dr. Cliff Musiimenta (1st Plaintiff) and documentary evidence including duplicate certificates of title of land at block 81 plot 28/76 exhibited and marked p. Exh 1 and p. Exh 2 and closed their case.

The 1st defendant relied on the testimony of one witness that is DW1- Margaret Nambwenu.

The 2nd defendant did not adduce any witness but chose to file written submissions.

#### **Representations**

At the hearing, the plaintiffs were represented by M/S JByamukama & Co. Advocates and the 1st and 2nd defendant were jointly represented by M/S Bikangiso & Co. Advocates. The parties were directed to file written submissions which they did and Court shall take the same into account without necessarily reproducing them.

#### Issues

At scheduling, the parties framed three issues. The court found it necessary to add one more issue for determination as hereunder: -

- 1. Whether the 1st defendant is a trespasser on the suit land; - 2. Whether the defendants are liable for misrepresentation, deceit and unjust enrichment?:

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- 3. What are the values of trees, if any? (added by the court); and - 4. What remedies are available to the parties?

Before addressing the merit of the case, court shall address the preliminary objections raised by the defendants in their submissions. The first one is that the suit should be dismissed for want of prosecution against the 2nd plaintiff as she did not testify or authorize the 1st plaintiff to testify on her behalf and yet the 1st plaintiff as well did not state that he was testifying for himself and the 2nd plaintiff. Counsel for the defendants quoted Order 9 rule 24 of the Civil Procedure Rules to fortify his arguments.

Secondly, the defendants challenge the suit against them as being time barred as according $\mathbb{I} \cup \mathbb{I}$ to them, it should have been filed in 2016.

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Thirdly, the defendants submitted that the plaintiffs have no cause of action against them since there were no rights that the plaintiffs were enjoying that they were deprived of. They referred to the Auto Garage & Others Vs Motokov (1971) EA.

The plaintiffs in rejoinder submitted that the suit is not time barred as according to them the cause of action was based on trespass which is a continuing tort as such a suit may be filed during its continuance. On the point of failure by the 2nd plaintiff to testify, counsel referred to order 18 rule 1 of the CPR and Section 133 of the Evidence Act, cap. 6 which in effect do not require a particular number of witnesses to testify.

I have addressed my mind to the submissions of both counsel and the laws cited and I do not wish to reproduce them here.

Dismissal of suit as against the 2nd plaintiff for failure to testify/prosecute the case. It is not disputed that the suit was filed by both the 1st and 2nd plaintiffs. My understanding of Order 9 rule 24 of the CPR cited by Counsel for the defendants is that where a suit is filed by more than one plaintiff and only one appears it does not render the claim in respect of the other party who has not appeared null and void. What is paramount is whether the plaintiff is represented and whether evidence has been adduced to support his/her claims. Section 101 & 102 of the Evidence Act is to the effect that the burden of proof is on he who alleges and on he who would fail if no evidence is adduced on either side. The plaintiffs' interest in the suit is joint as they share ownership of the suit land and the same is not disputed. Both plaintiffs who are Ugandans in the diaspora (USA) and were both represented by the same lawyer and that is sufficient. Whether they chose to produce one or twenty witnesses, it did not matter. Section 133 of the Evidence Act does not require a specific number of witnesses to prove a case; it could be one, two or more witnesses as the case may be. What matters is the quality of the evidence and not the number. Consequently, the 2nd plaintiff's case was duly

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prosecuted and the testimony of the 1st Plaintiff as PW1 with whom they share the same claim would be sufficient.

#### The claim is time bared

It should be noted that the 1st plaintiff testified as PW1 to the effect that he discovered about the trees on his land (suit land) on websites to their prejudice, sometime in 2019. The defendants did not challenge this. It is the court's finding that the cause of action arose in 2019 when the plaintiff's learnt of the impugned actions and omissions of the defendants complained of. The suit was filed in 2020 and this was done within time. It is my finding that the suit was not time barred.

#### Cause of action

To establish a cause of action, there must be proof that the plaintiff enjoyed a right(s), the defendant infringed on such rights and the plaintiff suffered injury/damages. This was the position in the case of Auto Garage & Others Vs Motokov (1971) EA 519. The defendants' submission is to the effect that the plaintiffs did not enjoy any rights and they were not $\overline{1}$ deprived of any rights.

The plaintiffs case according to their pleadings are based on the tort of deceit, misrepresentation and the notion of unjust enrichment against the 1st defendant for holding out as owners of trees on the suit land and entering into a carbon-credit sale agreement with the 2nd defendant for a monetary consideration which they enjoyed to their detriment. The 1st defendant's claim is that she was a caretaker of the suit land and did not remove any broken or dry branches of trees as done by other people. In other words her claim is that the suit land remained intact.

It should be noted that the basis of the plaintiffs' claims are in respect of the non-physical value of trees. The 1st defendant did not deny entering into a carbon-credit sale agreement

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dated 7th June, 2007 with the 2nd defendant where she received the total sum of Ug.shs 2,457,706, by committing the trees on the suit land for a tree planting project sponsored by the 2nd defendant. The 1st defendant raised claim of right. However, there is no evidence that she was a caretaker of the forests. The 1st defendant did not testify in respect of when she was appointed as caretaker and when she stopped being a caretaker. She did not provide too, any proof of caretaking authorized by the plaintiffs. Therefore, it is my finding that the plaintiffs enjoyed rights of ownership in the trees on the suit land and the same was constitutionally protected by Article 26 of the Constitution. Therefore, any benefits accruing from such trees ought to have been for the plaintiffs to enjoy but the defendants took the same without the plaintiffs' consent. In other words, they were enjoying a right of ownership which extends to any benefits direct or indirect that accrued from the properties (the trees herein). The 1st defendant received monetary benefits from the said agreement with the 2nd defendant and the defendant enjoyed benefits from running a tree planting project without consent of the plaintiffs. These are actionable (damages) as the plaintiffs would have benefited from the arrangement had they been involved.

Therefore there was a cause of action arising from the value in the trees and I shall address the issue more in issue No.3 hereinafter.

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#### Determination of issues by Court.

### Issue No.1: Whether the 1st defendant is a trespasser on the suit land?

Trespass to land occurs when a person directly enters upon another person's land without permission and remains thereon, places or projects any object upon the land. (salmond and Heuston on law of torts, 9th edition (London: sweet & Maxwell, (1987) 46).

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In Justine E. M. N Lutaaya versus Stirling Civil Eng. Civ. Appeal No. 11 of 2002, Supreme Court held that 'trespass to land occurs when a person makes an unauthorized entry upon another's land and thereby interfering with another person's lawful possession of the land'.

In effect, there is a requirement to prove that;

- $\checkmark$ He or she has been in possession at the time of the defendant's entry; - There was an unauthorized/unlawful entry by the defendant; and - ✓ The entry occasioned damage to the plaintiff.

It is not disputed that the plaintiffs own the suit land and the trees therein. It is also not disputed that the plaintiffs are in possession of the suit land having developed the same with trees. However, there is no evidence to prove that the defendants entered into the suit land and interfered with the plaintiffs' lawful possession.

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The plaintiffs want Court to believe that by the defendants using trees growing on the suit land for the tree planting projects they had interfered with their lawful possession. This is not true as no evidence of entry onto the suit land by the defendants was adduced by the plaintiffs. They also did not show how they suffered because the land remained intact with the trees and the defendants have not claimed ownership of the same. The basis of the plaintiffs' claim are in respect of the benefits the defendants enjoyed from the tree planting project, using the suit land without their consent. These are not actions of trespass. Consequently issue No.1 is answered in the negative. W.

Issue No.2: Whether the defendants are liable for misrepresentation, deceit and unjust enrichment?

### **Misrepresentation**

It simply means intentional misstatement of facts which a party relies on to his her detriment. The concept is based on law of contract and as such parties to a contract can rely on it. It refers to the act of making a false or misleading assertion about something with the intent to deceive (black's law dictionary, 8th edition page 3169).

In the instant matter, for a claim based on misrepresentation to have been properly before court, it should have been the 2nd defendant suing the 1st defendant as the plaintiff was not a party to the carbon-credit sale agreement. As such the plaintiffs have no cause of action based on misrepresentation against the defendants for the foregoing reasons.

#### **Tort of Deceit**

Deceit simply means dishonesty/ untruthfulness/fraud/trickery/sham.

In Panatron Pte Ltd v Lee Cheow Lee [2001] 2 SLR (R) 435 court outlined the elements of tort of deceit as follows;

- a. There must be a representation of fact made by word, writing or conduct. - b. The representation must be made with knowledge that it is false; it must be willfully false, or at least made in absence of any genuine belief that it is true. - c. The representation must be made with the intention that it should be acted upon by the plaintiff, or by a class of persons which includes the plaintiff.

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- d. The plaintiff had acted upon the false statement. - e. The plaintiff suffered damage in doing so.

In the instant case it is alleged by the plaintiffs that by the defendants executing the agreement without their consent it was deceitful. They also faulted the 1st defendant for forging the plaintiff's signature on the agreement. However, no proof was adduced to substantiate the claim. The plaintiffs also fault the 2nd defendant for its failure to do due diligence before transacting with the 1st defendant. It is my finding that these claims would have been sustainable by the 2nd defendant against the 1st defendant as they were parties to the carbon credit sale agreement and not the plaintiffs.

#### Unjust enrichment

This is an equitable remedy based on common law and doctrines of equity which are applicable in Uganda under Section 14 (2) (b) (i) of the Judicature Act (Cap.13). The concept requires; first, that the defendant has been enriched by the receipt of a benefit; secondly, that this enrichment is at the expense of the plaintiff and thirdly, that the retention of the enrichment is unjust. This qualifies for restitution." see Indian case of Mahabir Kishore & Madhya Paradesh 1990 AIR 313.

I find the said authority persuasive in addressing the issue at hand. In the instant case the 1st defendant represented herself as the owners of trees on the suit land which clearly belongs to the plaintiffs and she received monetary benefit in the sum of Ug.shs 2,457,706 from the 2nd defendant and it is in her testimony. She never remitted the said sum to the plaintiffs. It would be unjust and unfair to the plaintiffs to allow the 1st defendant to continue retaining what does not belong to her.

The plaintiffs have, however, failed to substantiate what benefits the 2nd defendant clearly received so as to amount to unjust enrichment. Therefore the claim of the plaintiffs in respect of the common law concept of unjust enrichment succeeds only against the 1st defendant. Issue No.2 therefore is answered in the affirmative in as far as the concept of unjust enrichment is concerned as against the 1st defendant.

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# Issue No.3: What are the values of trees, if any?

Objective XIII of the national objectives and directive of state policy in the 1995 Constitution of the Republic of Uganda provide for protection of Natural Resources including land, water, wetlands, minerals, oil, fauna and flora on behalf of the people of Uganda. Goal No.15 of the Sustainable Development Goals (Global Policy) to which Uganda is an implementing member State provides for the Protection, restoration and promotion of sustainable use of terrestrial ecosystems, sustainably manage forests, combat desertification, and halt and reverse land degradation and halt biodiversity loss. Planting trees is so vital in contributing to each of the 17 Goals of Sustainable Development. Trees have several values as shown hereunder;

Trees improve conservation of the natural environment by combating catastrophic effects of climate change (global warming) such as desertification, land degradation, floods, drought, hotter temperatures, and severe storms among others. Sustainable tree planting stabilizes the soil which in effect provides grazing for animals, helps to conserve water and maintain the water table, provides work and income opportunities. It also contributes to climate control action and helps to restore the ecosystems. Therefore trees contribute to combating desertification, reverse land degradation and reduce other catastrophic effects of climate changes among others.

Trees absorb these dangerous emissions which would have affected the ozone layer thereby saving the world by reducing global warming and its catastrophic effects. By absorbing the green -house gases, trees are a major factor in climate control. They can be said to fall under the same category of energy sources which are free from fossil fuels. This include solar, wind and electric energy. This on its own is a big industry in the green energy industry.

In view of the foregoing tree planting projects are invaluable nationally, internationally and promote peaceful co-existence between the living and non-living creators (eco-system). It is one of the global interventions against global warming and as such it is an industry of its own. It is a substantively funded industry.

In the instant, case it is not disputed that the 2nd defendant entered into a carbon- credit sale agreement with the 1st defendant for which money exchanged hands. It is also not disputed that the trees for which the 2nd defendant runs its projects belong to the plaintiffs and the 1st defendant wrongfully and illegally represented herself as the owner of the trees whereas not. The 2nd defendant ought to have done due diligence to ascertain ownership before entering into any dealing with the 1st defendant. It was for the non-physical value of trees that led to the transaction between the 1st and 2nd defendant and it is the 2nd defendant's key line of work. It is my finding that the 1st defendant unjustifiably stole the value of the trees which she marketed to the $2^{nd}$ defendant for a consideration and the $2^{nd}$ defendant took benefit of the same as it promotes its line of work, which is the promotion of tree planting. The argument by the defendants that the plaintiffs did not enjoy any right simply because the trees remained intact holds no water because the plaintiffs' cause of action is based in the value of the trees which the defendants benefited from, just like copy rights are protected by the laws of Uganda. Issue No.3 is answered in the affirmative.

# Issue No.4: what are the remedies available to the parties?

Having succeeded to substantiate the claims the plaintiffs pray for the following remedies.

1. Special damages

It is trite that special damages must be pleaded and specifically proven. Though not pleaded or prayed for, court has the powers to award the remedies it deems fit in the interest of justice. Special damages are sums certain in money. In the instant matter, it is not disputed that the 1st defendant obtained a sum of ug.shs 2,457,706 from the 2nd

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defendant without the knowledge of the plaintiffs. It is only fair and proper that she restitutes the plaintiffs of the said sum. According the 1st defendant shall pay the sum of Ug.shs 2,457,706 to the plaintiffs.

#### 2. Mesne profits

The plaintiffs prayed for mesne profits of Ug.shs 100,000,000 since the 1st defendant has benefited from the tree planting project from 2007 when she signed the carbon credit sale agreement.

Section 2 (m) of the Civil Procedure Act, Cap.71 define Mesne profits as 'those profits which the person in wrongful possession of the property actually received or might with ordinary diligence have received from it, together with interest on those profits, but shall not include profits due to improvements made by the person in wrongful possession.

My understanding of the said provision is that such awards are made to claims based on deprivation of usage of land, which is not applicable in the instant matter. The instant case is based on benefits received for the value of the trees on the plaintiffs" land without their consent and court has found that the sum of Ug.shs 2,457,706 should be paid to the plaintiffs by the 1st defendant. Therefore, prayer for mesne profit is rejected.

### 3. General damages

The plaintiffs also prayed for general damages and proposed a sum of Ug.shs 60,000,000. In BONGO VS KISUMU MUNICIPAL COUNCIL [1971] EA 91 and AHMED IBRAHIM BHOLM VS CAR AND GENERAL LTS, CIVIL APPEAL NO.12 OF 2002 (SC) court held that Damages is compensation in money terms through a process of law for a loss or injury sustained by the plaintiff at the instance of the defendant. It noted that General

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damages are awardable by court at large and after due court assessment. They are compensatory in nature in that they should offer some satisfaction to the injured plaintiff.

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By the action of the defendants, indeed the plaintiffs suffered general damages. An award of the special damage can-not adequately compensate for the loss or injury occasioned to the plaintiffs. The plaintiffs have not shown how they suffered so as to $\mathcal{L}^{\text{out}}$ entitle them to the sum of Ug.shs 60,000,000. They ought to have shown court how they arrived at the said sum. I find that general damages of Ug.shs 20,000,000 are sufficient to cater for the unquantifiable injury occasioned to the plaintiffs by acts and omissions of the defendants. Accordingly, the defendants shall jointly pay the plaintiffs Ug.shs. 20,000,000 as general damages.

# 4. Punitive/exemplary damages

In In BONGO VS KISUMU MUNICIPAL COUNCIL and AHMED IBRAHIM BHOLM VS CAR AND GENERAL LTS supra, court found that

> "... Punitive or exemplary damages are an exception to the rule, that damages generally are to compensate the injured person. These are awardable to punish, deter, express outrage of court at the defendant's egregious, highhanded, malicious, vindictive, oppressive and/or malicious conduct. They are also awardable for the improper interference by public officials with the rights of ordinary subjects. Unlike general and aggravated damages, punitive damages focus on the defendant's misconduct and not the injury or loss suffered by the plaintiff. They are in the nature of a fine to appease the victim and discourage revenge and to warn society that similar conduct will always be an affront to society's and also the court's sense of decency. They may also be awarded to prevent unjust

enrichment. They are awardable with restraint and in exceptional cases, because punishment, ought, as much as possible, to be confined to criminal law and not the civil law of tort and contract..."

The plaintiffs in the instant case have prayed for punitive damages of Ug.shs 40,000,000. They have, however, not particularized and substantiated such claims. i do not find the actions and omissions of the defendants severe enough to entitle the plaintiffs to punitive damages. The plaintiffs claim to this end is based on allegation of forgery of signature by the 1st defendant, for which they have not proven. The prayer for punitive damages is accordingly rejected.

### 5. Interest

Award of interest is provided for under section 26 of the Civil Procedure Act and the award of the same are discretionary upon court. The defendants through their actions deprived the plaintiffs of the enjoyment of what was due to them as such they are entitled to interest. Therefore, court awards interest at bank rate on item 1 and 3 (special and general damages respectively) from the date of judgment until payment in full.

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## 6. Costs

Costs follow the event and are discretionary upon court. I award costs of this suit to the plaintiffs.

#### Orders

The following orders are therefore issued:-

- 1. The 1st defendant shall pay the plaintiffs ug.shs 2,457,706 as special damages. - 2. The two defendants shall pay the plaintiffs Ug.shs 20,000,000 as general damages.

- 3. Interest awarded on order 1 and 2 above at bank rate from the date of judgment until payment in full. - 4. Costs of the suit awarded to the plaintiffs.

Either party aggrieved and dissatisfied with the court's decision may appeal. Delivered at Rukungiri this. Bismuth day of Muracet 2023 in the absence of the plaintiffs and in the presence of the 1st and 2nd defendants and in the presence of their Counsel.

HON. JUSTICE TOM CHEMUTAI **JUDGE**