Nadiope v Mwebe (Civil Appeal No. 7 of 1939) [1939] EACA 44 (1 January 1939)

## COURT OF APPEAL FOR EASTERN AFRICA

BEFORE SIR JOSEPH SHERIDAN, C. J. (KENYA), SIR LLEWELYN DALTON, C. J. (TANGANYIKA) AND FRANCIS, J. (UGANDA)

## WILLIAM W. KAJUMBULA NADIOPE, Appellant (Original Plaintiff)

versus

## DAUDI M. MWEBE, Respondent (Original Defendant) CIVIL APPEAL No. 7 OF 1939

(Appeal from decision of Gamble, J. (Uganda))

Concurrent jurisdiction of High Court and Lukiko Court of Buganda -Breach of contract to lend money—General damages—Special damages—Pleading—Uganda Order in Council, 1902, Article 15 (1)—Uganda Courts Ordinance (Cap 39), section 24—Native Courts in Buganda Proclamation Clause 1 (a) A.

Respondent agreed to lend the appellant Sh. 6,000 which the respondent knew the appellant required to enable him to pay the deposit of the purchase price of a certain estate which he had agreed<br>to buy for Sh. 25,000. The said loan of Sh. 6,000 was to be repaid with Sh. 1,000 interest three and a half months after the advance. The respondent gave the appellant a post-dated cheque for Sh. 6,000 the payment of which was subsequently stopped by the respondent with the intention of preventing the appellant from completing the purchase by paying the deposit in time and as a result the sale to the appellant was cancelled for default of payment of the deposit in time. Then the respondent himself bought the said estate for Sh. 30,000. Appellant sued the respondent in the Uganda High Court for Sh. 15,200 damages. Appellant pleaded inter alia that one C. F. Da Rocha had offered to buy the said estate from him for Sh. 40,000. particulars of the damages claimed were set out in paragraph 18 of the plaint as follows:-

- $(a)$ loss on the bargain as shown by the fact that defendant paid Sh. 5,000 more for the Bwavu Estate than the plaintiff had agreed to pay: Sh. 5,000; - $(b)$ additional loss sustained through plaintiff being unable to accept the offer of Sh. 40,000 made to him by C. F. Da Rocha: Sh. 10,000; - $(c)$ expenses incurred by plaintiff in connexion with the premises motor expenses: Sh. 200.

$\mathbf{V}$

The claim for Sh. 10,000 under paragraph 18 $(b)$ was abandoned before the hearing.

There was no evidence that the estate was of greater value to the appellant than Sh. 25,000 and there was no evidence of any specific items of special damage but it did appear that the appellant had made certain journeys by motor car in connexion with the proposed loan but the extent of these journeys and the cost thereof to the appellant were not proved. Appellant obtained judgment in the High Court for Sh. 200 only as special damages and taxed costs of

the suit "with the proviso that the taxing master must tax off such costs if any as are directly referable to the head of damages abandoned Sh. 10,000". Appellant appealed on the ground that he was entitled to general damages claimed in paragraph 18 $(a)$ of the plaint. Respondent cross-appealed on the ground that no special damages had been strictly proved.

Both parties were natives of the Protectorate of Uganda and the cause of action arose in Buganda.

*Held* $(13-5-39)$ .—(1) That the action was justiciable either by the Lukiko Court of Buganda or by the High Court, which Courts had concurrent jurisdiction and the appellant was entitled to elect to sue in either Court.

(2) That on the facts proved and the pleadings Appellant was entitled to nominal general damages which the Court of Appeal assessed at Sh. 100.

(3) That no special damage had been strictly proved and consequently the claim for Sh. 200 as special damage should not have been allowed.

Appeal allowed to the extent of Sh. 100. Cross Appeal as to special damage allowed. No costs to either party in the Court of Appeal. Order for costs in the High Court to stand.

$W$ right for the appellant.

O'Donovan and Agard for the respondent.

SIR JOSEPH SHERIDAN, C. J.: On the question of the jurisdiction of the High Court which was ascertained during the hearing I have had the advantage of reading what my brother Francis has said on the point and I agree with him.

For the appellant in this case I am satisfied, on the breach becoming established he was entitled to something by way of damages subject to his pleadings containing a prayer for general damages. As to this I am satisfied that the prayer however expressed in paragraph 18 (a) may be regarded as a prayer for general damages. As I read it, it may be construed as a statement that the appellant suffered damages such as the law will presume to be the direct natural or probable consequence of the act complained of. Because the appellant may have stated an incorrect measure of assessing those damages does not affect the question. This I think is clear from the judgment of Lord MacNaghten in Stroms Bruks Aktie Bolag v. Hutchison (1905 A. C. 515 at page 525). Indeed it was submitted in the arguments for the respondent before the High Court that in the event of a breach being proved the appellant was entitled to nominal damages—an admission that in such event he was entitled to general damages. As to the amount of those damages my opinion is that on the evidence they must be nominal. It has to be remembered that the loan of Sh. 6,000 was subject to the payment of interest of Sh. 1,000 so that in the event of the appellant succeeding in borrowing the remaining Sh. 19,000 it may be assumed that he would have to pay another Sh. 3,000 interest for it. Other vicissitudes might well have happened prior to the completion of the purchase. But quite apart from all that no evidence has been given showing that the property was of greater value to him than the price he was to pay for it, Sh. 25,000 and the money to pay that price, as I have said; had to be borrowed. I would consequently allow the appeal and allow the appellant nominal damages of Sh. 100. The cross appeal I would

allow in so far as regards the claim of Sh. 200 agreed by way of special damages, for the reason that as a claim for special damages, it has not been strictly proved. There will be no costs on either side in this Court and the order for costs in the Court below will stand.

SIR LLEWELYN DALTON, C. J.: I have had the opportunity of reading the judgment of the learned President just delivered, with which $I$ am in agreement. I have nothing to add.

FRANCIS, J.: As to jurisdiction I am of the opinion that this action was justiciable either by the Lukiko Court of Buganda or by the High Court according to the election of the plaintiff, or in other words both the Lukiko Court and the High Court had concurrent jurisdiction.

Both parties being natives of the Protectorate and the cause of action having arisen in Buganda, the Lukiko Court would derive its jurisdiction from the provisions of Clause 1 $(a)$ A of the Native Courts in Buganda Proclamation which reads: -

"1 (a) A. The Court of the Lukiko consisting of the Kabaka, President; the Mulamuzi, Vice-President; the Katikiro and the Muwanika, ex officio members: and three members appointed by the Kabaka subject to the approval of the Governor, who shall be appointed for a period of one year but whose term of office may be extended by the Rabaka with the approval of the Governor; with full jurisdiction in Buganda (original, appellate and revisional), except as hereinafter provided, in all cases in which all parties are natives of the Protectorate:"

while the High Court jurisdiction emanates from the Uganda Order in Council, 1902, Clause 15 (1) which reads: -

"Cl. 15 (1) There shall be a Court of Record styled 'His Majesty's High Court of Uganda (in this Order referred to as "the High Court") with full jurisdiction civil and criminal over all persons and over all matters in Uganda."

Moreover in section 24, Courts Ordinance, Cap. 39, Vol. 1, Laws of Uganda it is expressly provided that District Courts and Additional District Courts shall have concurrent civil jurisdiction over natives of the District with any native court. A fortiori therefore must the High Court have concurrent jurisdiction in similar circumstances.

The first question in this appeal is whether the appellant should be allowed the Sh. 5,000 damages claimed by him in paragraph 18 $(a)$ of his plaint and which were disallowed by the learned trial Judge.

I respectfully agree with the learned President, whose judgment I have had the advantage of reading, that paragraph 18 $(a)$ of the plaint may be construed as a statement that the appellant suffered damages which are the direct natural and probable consequences and naturally flow from the breach of the contract and because the appellant chooses to assess those damages at Sh. 5,000 this fact cannot be regarded as depriving him of his right to some damages. (Stroms Bruks Aktie Bolag v. Hutchison (1905 A. C. 515) per Lord MacNaghten at page $525$ .)

This principle appears to have been conceded by Mr. Ishmael in his arguments on behalf of respondent when he urged that if a breach of the agreement was established appellant was entitled only to nominal damages, i.e. general damages. As to the quantum of damages I again agree with the learned President that having regard to all the circumstances of this case the appellant is entitled to nominal. damages only, which I also assess at Sh. 100.

As to the second question raised in the cross appeal, Mr. Wright has conceded that he omitted to prove the special damages claimed and allowed and I accordingly agree that the judgment of the lower Court be set aside in so far as the award of Sh. 200 by way of special damages is concerned.