Mwesige v Kimara (HC CA No. 049 of 2008) [2011] UGHC 191 (2 October 2011)

Full Case Text

# the REPUBL1c op

**IN THE HIGH** COITPt ' **J** HCOU«toeuGAMDAatporti>ortal

**HC CA NO. 049 OF 2008**

### **MWESIGE PATRICK**

### appellant

### **VERSUS**

**KIMARA JOHN**

### respondent

# **BEFORE HON; MR. JUSTICE MIKE J. CHIBITA**

### **JUDGMENT**

T11S is an appeal from the judgment, decree and orders of the Magistiate Grade I, Fort Portal. The respondent brought a suit against the now appellant alleging that in 2003 he had entered his land and cut down mature trees. That he cut down more trees later that year and again in 2005. The damage was put at Shs 1,986,000/ = .

The matter was reported to Police and as a result the appellant was arrested and detained. He was made to make an agreement and made to pay Shs 91,000/= to the respondent before he was released on Police Bond. 1 . ' '

He therefore went to court for a refund of the Shs. 91,000/= and damages. The learned trial Magistrate allowed the respondents claim and made the following orders

- That cutting down the respondent's trees was unlawful. - \_ That the Shs 91,000/= was not paid under coercion. - That Shs 91,000/= be awarded as general damages. - That Shs 300,000/= be awarded as special damages. • - That appellant pays the respondent costs of the suit. /. ZUS

The appellant was aggrieved by these orders hence this appeal. The pai les agreed \_o file written submissions and the judgment was supposed to have been written by my predecessor Justice Owiny Dollo but he was transferred before he could do so.

*I*

Being written submissions therefore, I found it appropriate to take on the file and write the judgment, which I proceed to do.

The grounds of appeal are:-

- 1. That the trial Magistrate erred when he formulated his own issues and departed upon those agreed upon; - 2. That he erred -when he held that the appellant illegally cut the respondent's trees and trespassed on his land. - 3. That the trial Magistrate erred when he held that the trees were not on a road reserve. - 4. That he erred when he held that rhe agreement made-between the appellant and respondent on 7th October, 2005 was not made under duress and/or undue influence and wrongly dismissed the appellant's counter claim. - 5. That the trial Magistrate failed to properly evaluate the evidence on record and as a result came to the wrong I conclusions. - 6. That the trial Magistrate was wrong in awarding special and general damages to the respondent and the damages awarded were excessive-in the circumstances.

The parties are agreed that on the authority of Order 5 rule 5 and the cases of ODD JOBS vs MUBIA and BARUGAHARE VS ATTORNEY GENERAL that court can amend the issues framed. The only consideration should be that the essence of the dispute between the parties should be captured so that it is resolved in the final analysis.

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Whether some of the issues framed are non issues should not be a problem of the parties. In my view, if court proceeds to frame non issues and goes ahead to resolve non issues then that is a problem of the court. It is a problem only in as far as it engages in a time wasting and needless exercise.

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After the exercise in futility however, if court then returns to resolving the real issues then it should be welcomed back from its frolic. The parties can then rejoin the exercise and as long as the real issues are thereafter resolved, the rest can be ignored.

While some of the issues framed by the trial court in the current instance were issues or non issues, it is agreed that the essence of the dispute was captured within the newly framed issues. To use the words of learned Counsel for the respondent, 'no prejudice or injustice was caused thereby to the appellant.'

### GROUND NO. 2 AND 3

I will combine the two grounds because once ground two is decided one way then ground three automatically follows suit. If the trees were in a road reserve then there was no trespass. On the other hand if the trees were on private property then trespass is automatically found to have happened.

The parties went to great lengths to quote the relevant laws concerning establishment of road reserves. Both parties seem to

concede that there was, at a minimum, a bulungi bwansi road in existence for over 40 years.

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Bulungi bwansi road in ordinary parlance would imply the existence of a road first of all. Secondly, the road in question may not be legally recognized by the Roads Act or the Local Government but by the residents of the area.

The fact that there was a road, recognized by the residents, for over 40 years should mean that there was a road as far as the people who matter, the residents, are concerned. They are the ones who used the road, maintained it and cleared it, for over forty years.

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The appellant, a local leader led a group of residents, after getting the requisite permission from his superiors, to clear the road reserve. He was doing only what was required of him as a leader in the community.

I find that from the testimony available; bulungi bwansi road, in existence for over forty years, there was notice to the respondent to remove his fence from the road reserve, there was evidence that the road was maintained by the Local Administration of Ruteete Sub County from time to time and the fact that the law requires roads maintained as such to have road reserves, all point to the fact that the trees stood on a road reserve and consequently that there was no trespass to the respondent's property.

Grounds 2 and 3 are therefore resolved in favour of the appellant.

### GROUND NO. 4

It is the appellant's case that the agreement made between the parties on 7th October, 2005 at the Police while the appellant was in custody was made under duress and undue influence.

He therefore contends that the trial Magistrate erred to find, in his judgment, that despite the fact that the appellant was at Police and in cells, there was no coercion or undue influence and therefore he voluntarily entered into the agreement in issue.

The testimony on record indicates that the appellant was in Police custo y, he did not have a lawyer, his adversary was present and had a lawyer, he stated in his testimony to the trial court that Police forced him to sign the agreement and that he was not allowed to get a lawyer and finally that he was told, or he got the impression, that signing the agreement was a condition precedent to regaining his liberty.

Any one of the above points alone could have been found to constitute duress or undue influence. The presence of all of them in this single instance definitely constitute overwhelming evidence that the appellant was not entering into this agreement voluntarily as a free person.

I am satisfied that the definition of undue influence quoted by learned counsel for the appellant from Black's Law Dictionary, as being '...unfair persuasion of a party who is under the domination of the person exercising the persuasion or who by virtue of the relationship between them is justified in assuming that the person will not act in a manner inconsistent with his welfare', indeed existed in the instant case.

The trial Magistrate therefore erred in finding that the appellant, while in Police cells, in absence of his lawyers but in presence, of his adversary and the adversary's lawyer. could have signed, tire agreement voluntarily. Ground 4 therefore succeeds.

## **GROUND NO. 5 . - -------**

I agree with learned Counsel for the respondent that the several matters complained of. by the appellant have been covered by toe specific grounds of appeal preceding this. I find this g omnibus and too general. It is too sweeping ai groundI to war specific attention. This ground will therefore be disregai -

**GROUND NO. 6**

On general and special damages, it is indeed trite law that general damages are awarded at the discretion of the court and that special damages have to be proved specifically. The trial Magistrate was therefore within his right to award general damages, which I do not find excessive'. .

However since there is no evidence that the special damages were specifically pleaded and proved, he erred in law in awarding special damages. .

All in all, since the appellant made the agreement under duress and did not commit any act of trespass as earlier found, is it not moot now to discuss the damages? The damages were awarded because the respondent had won the case. The trial Magistrate was indeed within his right to award the general damages. - - - -

Consequently, the appeal is allowed court having found that the trees were on a road reserve and therefore there was no trespass to the respondent's property and that the agreement made at the Police was made under duress.

The judgment, orders and decree of the trial Magistrate, His Worship Karemani Jamson Karemera, made on the 19th day of September, 2008 are hereby set aside.

The'appellant is awarded costs in this appeal and in the suit below.

Dated at Fort Portal this 7th day of October, 2011

**JUSTICE MIKE J. CHIBITA**