Nanyini v Baguma & 2 Others (Civil Suit 3 of 2024) [2024] UGHC 910 (25 September 2024)

Full Case Text

#### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA HOLDEN AT KIBOGA

### HCT-23-CV-CS-0003-2024

### (FORMERLY MUBENDE CIVIL SUIT NO.50 OF 2017)

**NANYINI DOMINIC:::::::::::::::::::::::::::::::::::**

#### **VERSUS**

1. BAGUMA CEASAR

2. KAWOYA ABDUL

3. NSUBUGA RONALD BASSI

**.....................................**

#### **BEFORE: HON. MR JUSTICE KAREMANI JAMSON K**

#### **JUDGMENT**

### Introduction.

Nanyini Dominic (hereinafter referred to as the plaintiff) filed this suit against Baguma Ceasar, Kawoya Abdul and Nsubuga Ronald Bassi (hereinafter referred to as the defendants) jointly and severally for a declaration that the defendants are trespassers on the suit land, for payment of cut trees, compensation for destroyed immature trees, a permanent injunction restraining the defendants from further trespass, general damages, interest and costs of the suit.

The defendants made a counterclaim against the plaintiff praying for orders that the plaintiff breached the agreement, for payment of one million shillings to the $1st$ and $2nd$ defendants, payment of two million shillings to the $3rd$ defendant, general damages and costs of the suit.

Julian Main

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### The Plaintiff's case.

The plaintiff was indebted to the $1^{st}$ and $2^{nd}$ defendants to a tune of three million shillings $(3,000,000=)$ as a result of a money lending transaction. Upon the plaintiff failing to pay the said money, the two parties entered into an agreement dated $19/7/2015$ in which the plaintiff was granted 20 days within which to pay the said money that is by $9/8/2015$ . In the same agreement, the parties agreed that in case the plaintiff failed to pay, he would allow the $1^{st}$ and $2^{nd}$ defendants cut his trees to recover the sum due. That around early August 2015, the 1st and $2nd$ defendants entered into an agreement with the 3rd defendant to harvest the trees in issue. The plaintiff contends that he was supposed to permit the cutting of the trees first which was not done. That the defendants entered onto his land without permission and cut immature trees thereby committing trespass. That they harvested more than they were entitled to and hence this suit.

### The Defendants' case

The $1^{st}$ and $2^{nd}$ defendants contend that they extended a loan of 3,000,000= to the plaintiff. That he did not pay as agreed. That upon several demands, the plaintiff offered the $1^{st}$ and $2^{nd}$ defendants his trees which they were supposed to sell and recover their money. That the $1^{st}$ and $2^{nd}$ defendants sold the same trees to the 3rd defendant at two million shillings two million shillings $(2,000,000/$ =) with the consent of the plaintiff. The plaintiff made it difficult for the $3^{rd}$ defendant to harvest the said trees by reporting him to different authorities. They raised a counterclaim that the plaintiff has not paid the balance of one million shillings $(1,000,000=)$ since the tress fetched only shs. 2,000,000=.

### Issues for determination.

1. Whether the defendants trespassed onto the plaintiff's land and cut immature trees

1 Ulun

- 2. Whether the defendants cut the trees in issue without the consent of the plaintiff. - 3. What is the value of the trees cut? - 4. Whether the plaintiff paid back the money borrowed from the $1st$ and $2nd$ defendants. - 5. What remedies are available to the parties?

### Evidence presented:

The Plaintiff adduced evidence of 5 witnesses.

PW1 Nanyini Dominc testified that $1^{st}$ and $2^{nd}$ defendants advanced to him a loan of 3,000,000/=. That on $19/7/2015$ , the two parties agreed on how the said money was to be paid back by $9/8/2015$ and that incase of failure of the plaintiff to pay the money, he would allow the $1^{st}$ and $2^{nd}$ defendants cut some trees from his forest worth the debt in his presence. To his estimate, three to five trees would have been enough to cover the debt. That around $5/8/2015$ , the 3rd defendant entered onto his forest and cut down trees. That the cutting of trees went on for five to eight months.

In cross examination he stated that he did not give the defendants the whole forest to cut and they were to cut in his presence. He stated that he was indebted to the defendants to a tune of shs. $3,000,000/$ = and he had not paid. That the defendants stopped cutting the trees on $22/11/2016$ after an injunction had been issued.

PW2 Bob Kazungu Bob a senior forest officer with Ministry of Water and Environment testified that he conducted a valuation of the cut forest belonging to the plaintiff and concluded that the value of trees cut was four hundred ninety-seven million four hundred six thousand six hundred seventy-five shillings. $(497,406,675/=)$

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PW3 Andama Joseph a forest ranger- Kiboga District Local Government testified that he joined the senior forest officer Bob Kazungu (PW2) in collecting data of the forest concerning how many trees were destroyed however all the finding were noted by PW2.

PW4 Nteemu Vincent a neighbor of the suit land and an uncle to the plaintiff testified that in August 2015, the 3rd defendant came onto the suit land with 8 men and they started harvesting the trees. He told them to stop cutting the trees but the 3rd defendant claimed that he had bought the forest. The cutting went on for a period of $6$ months.

PW5 Kakooza Fabian testified that he was present on $19/7/2015$ when an agreement was entered into between the plaintiff and the $1^{st}$ and $2^{nd}$ defendants to allow the plaintiff 20 days within which to pay the money that was being demanded by the defendants. The plaintiff pledged his trees as security on condition that in case he defaulted on payment, some trees would be cut to recover the money.

In cross-examination he stated that the defendants were supposed to harvest some of the trees and not all of them.

# The defendants adduced evidence of 4 witnesses

DW1 Baguma Ceasar testified that on $19/7/2015$ , him and the 2nd defendant advanced a loan of 3,000,000/= to the plaintiff to be paid back within one month. That on 19/6/2015, the 1st and $2^{nd}$ defendant entered into a new agreement with the plaintiff to pay the money by $9/7/2015$ and that incase the plaintiff defaulted, they ( $1^{st}$ and $2^{nd}$ defendants) were authorized to cut the plaintiff's trees at Mpangala village, Bukomero sub-county to recover the money. That the payment date expired and the plaintiff consented to the $1st$ and $2nd$ defendant selling the trees upon which they sold the trees to the $3rd$ defendant at

TUAN

shs. 2,000,000/= however the $3^{rd}$ defendant informed them that the plaintiff had stopped him from harvesting the trees.

In cross examination he stated that they did not agree on the number of trees to be cut. That they were supposed to cut all the trees. That he sold the trees to the $3rd$ defendant who was supposed to cut all the mature trees.

The evidence of DW2 Kawooya Abdul in his testimony did not differ from that of DW1. He simply confirmed what DW1 stated.

DW3 Nsubuga Ronald Bassi testified that the 1st and 2nd defendants sold to him trees in a forest at Mpangala village at $2,000,000/$ =. That shortly after he had started cutting the trees, he was stopped by the workers of National Forestry Authority (NFA) from Kiboga.

In cross examination he stated that he was shown the boundaries of the areas covered by the trees he was supposed to cut. That after one week he went to cut the trees and was stopped by NFA, Police and the plaintiff.

In re-examination he stated that he first heard of the valuation report under which five million shillings $(5,000,000=)$ was being demanded and he later heard of twenty million shillings $(20,000,000/=)$ .

DW4 Magezi Muhammed testified that he is a consultant in natural resources. That on $1/6/2018$ he carried out a valuation of trees that had been harvested from the suit land and concluded that the value of the trees cut was seven million nine hundred eighty thousand shillings only $(7,980,000/=)$ .

In cross examination he stated that he carried out the valuation two and a half years after the trees had been cut. That he did the valuation by looking at the stamps.

### Locus visit

This court visited the locus in this case on $12/4/2024$ and made several observations. The court also took on evidence of a court witness Butono Agnes

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who testified that in August 2015, she was the chairperson LC1 of that village. That at first, the plaintiff and the $1st$ and $2nd$ defendants came to the land to cut trees but after cutting a few trees, a disagreement ensued between them and the cutting was stopped. A week later, the defendants returned and cut trees for two weeks and left the forest empty.

A sketch plan of the area allegedly covered by the trees was drawn.

### Representation.

At the hearing, the Plaintiff was represented by Mr. Nuwamanya Balaam of M/S Pearl Advocates and Solicitors. The Defendants on the other hand were represented by Mr. Alinaitwe Gideon of M/S Kazungu, Kakooza. Alinaitwe & Co. Advocates. The court gave counsel directives to file written submissions but only counsel for the plaintiff filed submissions which have been taken into consideration in the determination of this case.

# Burden and standard of proof.

The burden of proof in civil matters lies upon the person who asserts or alleges. Any person who, wishes the court to believe the existence of any particular fact or 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 that those facts exist. (See section 101, 102 and 103 of the Evidence Act Cap 8). The opposite party can only be called upon to dispute or rebut what has been proved by the other party. See: Sebuliba -V- Co-operative Bank (1982) HCB 129. The standard of proof required is on the balance of probabilities. In *Miller -V-Minister of Pensions (1947)2 ALL ER 372* Lord Denning stated;

"That the degree is well settled. It must carry a reasonable degree of probability but not too high as is required in a criminal case. If the evidence is such that the tribunal can say, we think it is more

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probable than not, the burden of proof is discharged but if the probabilities are equal, it is not."

### Consideration and determination of the issues:

# 1. Whether the defendants trespassed onto the plaintiff's land and cut immature trees.

Counsel for the plaintiff submitted that PW1 the plaintiff as a beneficiary of the estate of his late father Fabiano Minano and his uncle Petero Sebushawa, he planted trees/forest on the suit land approximately 17 acres. That this showed that he had an interest in the suit land. The defendants entered onto his land, cut down his trees without his permission. Counsel referred to the case of Tayebwa Geofrey –V- Mustafa Kagimu Ngudde CS No.118 of 2012 to prove the elements of trespass to land

### Analysis.

The Supreme Court while defining trespass as per the case of **Justine E. M.** $N$ Lutaaya –V. Stirling Civil Eng. Civ. Appeal No. 11 of 2002, 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 Sheik Muhammed Lubowa -V- Kitara Enterprises Ltd C. A No.4 of 1987, the East African Court of Appeal noted that;

"in order to prove the alleged trespass, it was incumbent on the appellant to prove that the disputed land belonged to him, that the respondent had entered upon that land and that the entry was unlawful in that it was made without permission."

These elements of trespass were further stated in the case of **Tayebwa Geofrey V** Mustafa Kagimu Ngudde (supra) as stated by counsel for the plaintiff.

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The court in **Asher v. Whitlock (1865) LR 1 QB 1** as cited in the case of **Kaggwa** Micheal -V- Apire John High Court Civil Appeal No. 126/2019, Justice **Steven Mubiru** stated that possession of land is in itself a good title against anyone who cannot show a prior and therefore better right to possession. Possessory title is not based on a documentary title but on the exclusive occupation of the land (or receipt of rent from the land) for a period of time.

# **Proof of elements of trespass**

The first element is on ownership of the land in issue by the plaintiff. There is undisputed evidence of PW1 Nanyini Dominic that he is in possession of the suit land since the year 1990 as a beneficiary of the estate of his late father Fabiano Minani and uncle Petero Sebushawa. A certificate title for this land was admitted in evidence as PEX 1. This proved that the plaintiff is the owner of the land referred to in this case. I do find that indeed the plaintiff owned the land in referred to in this case.

The second element is of entry onto the land in issue. The learned counsel for the plaintiff stated that the 3rd defendant admitted that he was taken to the suit land by the $1^{st}$ and the $2^{nd}$ defendants who sold to him trees.

PW3 Nteemu Vicent an uncle of the plaintiff and a neighbor to the suit land testified that 3rd defendant came onto the suit land with 8 other people. This fact was not disputed by the 3rd defendant that he entered onto the land referred to. Court witness Nabuto Agness corroborated the evidence of PW3 when she stated that the $1^{st}$ and $2^{nd}$ defendants came onto the suit land. This is a fact that was not disputed by the defendants. Therefore, it is my view that there was entry onto the suit land by the defendants.

Thirdly element in on unlawful entry. It was the evidence of PW1 the plaintiff that the $3rd$ defendant entered onto his land without his permission. This evidence was corroborated by the evidence of PW3 Nteemu Vincent who saw the $3rd$ defendant together with his workers on the land in issue.

TUAM

DW1 on the other hand presented Exh. DE 2 stating that the same was the directions to the forest given to him by the plaintiff to reach the forest/land referred to. That him and the $2nd$ defendant used the said directions to go to the village where they met the chairperson LC1 and the brother of the plaintiff who showed them trees and they inspected the same before they went back. The evidence of DW1 was corroborated by that of Court Witness who stated that the $1st$ and $2nd$ defendant had come to her inquiring on whether the alleged forest was there upon which the chairperson confirmed that it was there and even showed it to them and they left.

The above enumerated evidence shows that the $1^{st}$ and $2^{nd}$ defendant went to the land in issue.

The next issue is whether their entry was unlawful and without permission.

In his evidence in chief the plaintiff (PW1) did not indicate that the defendants were not authorized to enter onto the land. He only indicates that they went to cut the trees they had agreed upon save that they went there alone and cut more trees than the agreed ones.

It is my considered position that the parties had agreed that the $1st$ and $2nd$ defendants cut the trees in order to recover their money owed by the plaintiff. To cut the trees they would have to enter the land. They therefore had the permission to enter the land. What is questionable is their entry on to the land in the absence of the plaintiff and allegedly cutting more trees than the agreed ones. In my view this did not strip them of the permission that was earlier granted to them. The $1^{st}$ and $2^{nd}$ defendants were allowed to cut the trees to recover their money according to the agreement executed. Again it is my considered view that this did not deter them from assigning their interests to another person and therefore their agreement with the 3rd defendant to cut the trees was not unlawful and hence the 3rd defendant was equally not a trespasser when he entered the land to harvest the trees. The entry onto the land by the defendants was not unlawful nor unauthorized.

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I therefore find that the evidence in this case does not prove that the defendants trespassed on the land in issue. The first issue is answered in the negative.

# 2. Whether the defendants cut the trees in issue without the consent of the plaintiff.

Counsel for the plaintiff submitted that PW1 the plaintiff was informed by PW4 Nteemu Vincent that the 3rd defendant had come to the forest with some people and they were cutting the trees. That PW2 the senior forest officer confirmed that he found tree stumps on the land and that it was the testimony of the 1st and $2^{nd}$ defendants that they sold the trees to the $3^{rd}$ defendant. That the agreement dated $\frac{19}{7}$ /2015 indicated that the transaction between the parties was of a money lending transaction and as such trees were security for the loan therefore upon default, the defaulters would have sought redress from court or consent of the plaintiff to attach the security. The agreement did not give the $1st$ and $2nd$ defendants power to sell.

The defendants contend that they required no more permission to cut the trees upon default of payment.

# Analysis.

According to the evidence of PW1 he was advanced money shs. $3,000,000=$ by the $1^{st}$ and $2^{nd}$ defendants and they executed an acknowledgement on $19/7/2015$ . That he was supposed to pay by $9/8/2015$ after 20 days. That on the event that he defaulted he would allow them to cut some of his trees in his presence to recover the money. That he later learnt that the defendants had entered the forest and started cutting the trees.

In cross examination he stated that the agreement stated that upon failure to pay the defendants were to cut some of the trees in his presence. He accepted that he gave the directions to the defendants to the location of the forest.

$\sim$ / man According to the evidence adduced by the defendants they had agreed on the timelines as enumerated by the plaintiff and he authorized them to sell trees to recover the money if he defaulted payment.

The parties reduced their agreement in writing and the same was tendered in court as exhibit. P.3 for the plaintiff and D.3 for the defendants. The two exhibits are in same words.

The same is reproduced below verbatim;

$\alpha$

$19/7/15$

AGREEMENT TO PAY MR. BAGUMA CEASAR AND KAWOOYA ABDUL OF THEIR SHS. $3,000,000/=$

I Nanyini Dominic have agreed with the above to pay their money to a tune of three million only but after selling my forest at Bukomero –Kiboga district. I will do this not later than the ninth $(9/7/15)$ that is twenty days from now. This money is going to be raised from the trees. In case I fail, I authorize them to sell but they will *do so in my presence.*

# *Note: Even if am not around they are free.*

*Nanyini Dominic ................ (signature)*

*Ssalongo Musoke Joseph*

Chairperson

KAWOYA ABDUL

BAGUMA CEASAR

(Owner of money) $\alpha$

*In the presence of;*

- 1. *Nabachwa Mable* .................................... - *2. Kakooza Sabiya ………………………………………………………………………………………………*

The transaction entered into by the plaintiff and the $1^{st}$ and $2^{nd}$ defendants is an agreement which was governed by the Contracts Act, 2010.

Section 10 (1) of the Contract's Act states that;

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"A contract is an agreement made with the free consent of parties with capacity to contract for a lawful consideration and with $a$ lawful object, with intention to be legally bound."

In the case of **Greenboat Entertainment Ltd -V- City Council of Kampala C. S No. 0580 of 2003** a contract as was defined as follows; -

"In law, when we talk of a contract, we mean an agreement enforceable at law. For a contract to be valid and legally enforceable there must be: capacity to contract; intention to contract; consensus ad idem; valuable consideration; legality of purpose; and sufficient certainty of terms. If in a given transaction any of them is missing. it could as well be called something other than a contract".

Upon reading of the contract between the plaintiff and the $1^{st}$ and $2^{nd}$ defendants, in my view it was a valid and binding contract between the parties.

The main terms of the contract were:

- $i$ that the plaintiff was to pay the money not later than $9/7/2015$ . - If he failed to pay they were authorized to sell the trees but in his $\ddot{i}$ presence. - It was also to be noted that even if he was not around they were free. iii)

The first question to be asked is whether the plaintiff defaulted payment by the time set in the agreement. He concedes himself to have failed to pay in time set. The answer is yes he did.

Was the sale commensurate with the terms of sale? In short, was the plaintiff present during the sale of the trees to the 3rd defendant? The evidence of both parties shows that he was not present.

What about the provision that;

"Note: Even if am not around they are free."

I have considered the same qualification of the freedom to sell even if the plaintiff was absent in comparison with the requirement for the plaintiff to be present. It is my own considered position that his presence was meant to iron out what later arose due to his absence. That is the allegations of selling more trees than the value of the money owed. The sale involved introduction of another party who was not part of the original agreement between the parties.

In my view the defendants were granted conditional consent that is, presence of the plaintiff during the sale upon default. I don't need to emphasize its importance. The sale was therefore without consent.

Before I leave this issue, I would like to state as per the submissions of the learned counsel for the plaintiff that the option of suing to recover the money by the defendants upon default was one of the options. It was not the only means. The agreement did not bar suing to recover the money. It was simply another option. The 1st and 2nd defendants had the option to sell the trees referred to upon securing the presence of the plaintiff or suing him to recover the money. They preferred the former but didn't adhere to the set conditions. This issue is answered in the affirmative.

#### 3. What is the value of the trees cut?

Before I address the issue of the value of the trees cut, I would like to first determine whether the defendants destroyed immature trees. This was a subissue of issue one.

Counsel for the plaintiff submitted that PW2 while doing valuation noted that approximately 5000 eucalyptus trees were still young and were destroyed by the defendants and that it was the evidence of the court witness at locus that the trees were cut and an empty field like a pitch remained.

#### Analysis.

In his evidence in chief, PW1 did not specify the trees cut having been involving immature trees. It is only stated that the defendants cut trees.

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PW2 who carried out valuation of the cut trees stated that they counted the stamps of the cut trees, took note of the types of the trees cut and observed that the cut stamps were still fresh. He does not refer to any immature trees. He compiled Exh P.7 which was the valuation report but did not specify whether the trees destroyed were mature or immature trees. However, during cross examination, the same witness stated that when he visited the suit land, he found young trees that were destroyed and they looked a few months old. PW3 Andama Joseph a forest ranger who visited the forest together with PW2 also stated that there were young trees of about 2 to 3 months that had just been destroyed. It is important to note that PW2 visited the land in November 2016 yet the alleged destruction allegedly occurred in August, 2015. This was after more than a year. This means that the destroyed immature trees in November 2016 were not yet on the suit land at the time the cause of action herein arose. This allegation of destruction of immature trees doesn't loom genuine to believe. I dismiss the same. It is therefore my conclusion that there were no immature trees on the land in issue for the defendants to destroy.

# The value of the cut trees.

Counsel for the plaintiff submitted that in assessing the value of the trees cut, a valuation report by the senior forestry officer Mr. Bob Kazungu was admitted in evidence as P. Exh 6. That the witness is well qualified and followed schedule 13 of the National Forestry and Tree Planting Regulations, 2016 which helped him come to a final figure of $497,406,675$ = as the value of the cut trees. He further prayed that the court disregards the valuation report made by DW4 Magezi Muhammed on reasons that the report was made two and a half years later and that the witness had a Bachelor's degree and possessed no license in valuation.

# Analysis.

In this case, two valuation reports were made and tendered in court by both parties. Exh. P7 is a valuation report tendered in by PW2 Bob Kazungu dated $15/11/2016$ showing that the value of the trees cut is Ugx. 497,406,675/= while

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Exh D.7 is a valuation report tendered in court by DW4 Magezi Muhammed dated $8/6/2018$ which showed that the value of the trees cut is Ugx. 7,980,000/=.

In the case of **Aua** investiments (U) Ltd -V- Industrial Development **Corporation of South Africa HCMA NO. 2908 of 2023**; it was stated that;

"The general principle is that unless it is shown to the court that some well-accepted principles of valuation have been departed from without any reason; or that the approach adopted is patently erroneous; or that relevant factors have not been considered by the valuer; or that the valuation was made on a fundamentally erroneous basis; or that the valuer adopted a demonstrably wrong approach or committed a fundamental error in going to the root of the matter; the court cannot interfere with the valuation of an expert (See: G. L. Sultania and Ors –V- The Securities and Exchange Board of India and others (2007) 5 SCC 133)."

The court in **Bank of Africa Uganda Limited -V- Ssemaganda Mark and** another, C. A. Civil Appeal No. 0131 of 2021 further stated that preferring one valuation report to another is a discretionary exercise. When a valuation report is challenged, the court will consider mainly; the competency of the valuer, the suitability of the methodology used by the valuer to the circumstances of the task at hand, the proper application of the methodology, and the sufficiency of detail in the report in justifying the outcome. The court in **Aya Investiments (u)** ltd -V- Industrial Development Corporation of South Africa (supra) also noted that the court must not interfere unless there are compelling reasons to upset the finding of the expert valuer of the impugned report. Even a vast discrepancy between the values given by one valuer as opposed to another, without more, will not suffice, except where it is demonstrated that the impugned valuer did not use the best possible method of evaluation. The court must not

*Than*

venture into the realm of convoluted analysis, extrapolation, and taking on itself the valuation burden that is no part of its remit or expertise.

Bearing in mind the above as stated principles by the court, it is my considered opinion that both valuation reports presented in this case had material defects that would render them erroneous in some material particular and would hence make it very difficult for this court to base on either of them to make a proper decision because of the following reasons;

- i) Exh P7 the valuation report tendered in court by PW2 Mr. Bob Kazungu a senior forest officer with the Ministry of Water and Environment indicate that that the valuation was made in November, 2016 which was over one year of the alleged cutting of the trees. Further, it was PW2's evidence that there were 5 acres of immature eucalyptus trees that had been recently planted that were destroyed and the same were included in the valuation report. I have already found that there were no immature trees on the suit land at the time the plaintiff's trees were cut by the defendants. Therefore, including those immature trees that were found destroyed on the suit land two to three months prior to the valuation would render the valuation results rather erroneous and not accurate. - ii) With regard to Exh D.4 valuation report tendered in court by DW4 Magezi Muhammed, the same was made two and a half years later when different situations had set in. His report cannot be reliable. - iii) Exh P7 was made at the request of the plaintiff while Exh. D4 was made at the request of the defendants. It is therefore not certain whether they did not make the valuation reports to the interests of their respective clients.

This is a case where an independent valuation report made shortly after the incident would have been suitable. This was not done.

It is from the above reasons that I am unable to make a decision based on the findings of any of the valuation reports presented by the parties. This therefore

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leaves this court with the discretion to determine the value of the trees cut basing on the observation as to the size of the land where the trees were located and the stamps seen during the visit of the locus and the other evidence tendered in court by parties. From the observation during the locus visit there were indeed trees cut basing on the stamps seen. The trees were however mixed with crops like banana plants and coffee trees. The evidence of PW1 was to the effect that he had planted the trees mixed with other plants. This can also be seen on the photos taken at locus. Therefore, trees in issue were sparsely spread. They were not of higher value that is claimed by the plaintiff neither were they of the lower value as portrayed by the defendants.

The evidence of the court witness was to the effect that the harvest took some weeks and several lorries ferried timber. There were some reasonable number trees cut.

Basing on the above I find that shillings twenty million (shs. 20,000,000=) is appropriate for the cut trees.

# 4. Whether the plaintiff paid back the money borrowed from the 1st and $2nd$ defendants.

Counsel for the plaintiff submitted that the plaintiff did not pay the sum borrowed from the $1^{st}$ and $2^{nd}$ defendants because the defendants descended on his forest, cut it down and paid themselves. That the 3rd defendant did not owe the plaintiff anything and even admitted it in his evidence.

# Analysis.

I have already found that there was a valid agreement between the plaintiff and the $1^{st}$ and $2^{nd}$ defendants for payment of the money owed. No evidence was adduced by the plaintiff to show that he paid the $1st$ and $2nd$ defendants the three million shillings $(3,000,000/$ =) that was arising from the loan advanced to him.

It therefore my finding that the plaintiff did not pay the money owed to the 1st and $2^{nd}$ defendants.

1/1/11/1A

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# 5. What remedies are available to the parties?

# a) Compensation for the cut trees

This court has already found that the cut trees were worth twenty million shillings (shs.20.000.000=) which is accordingly awarded as compensation.

# b) Trespass and permanent injunction

This court found that there was no trespass and hence no temporary injunction is required and hence none is granted.

#### c) General damages

General damages are awarded to a party for any loss or inconvenience caused. They are a direct natural or probable consequence of the act complained of and follow the ordinary course or relate to all other terms of damage whether pecuniary or none pecuniary, future loss as well as damages for paid loss and suffering. See: Wakabi Simon V Apollo Kantinti HCCS No. 1245 of 2018.

Black's law dictionary 9th Edition at page 445 defines damages as the sum of money which a person wronged is entitled to receive from the wrong doer as compensation for the wrong. It is trite law that damages are the direct probable consequence of the act complained of. See: Storms -V- Hutchison (1905) AC 515

Counsel for the plaintiff prayed for general damages of fifty million shillings $(50,000,000/=)$ on grounds that the plaintiff had been inconvenienced and frustrated by the defendants' actions of cutting down his forest. Indeed, the plaintiff was inconvenienced and deserves general damages. I award general damages of ten million shillings (shs.10.000.000=)

#### Counterclaim

The defendants in their counterclaim prayed for payment of $1,000,000/$ = to the 1st and 2nd defendants and payment of 2,000,000/= to the 3rd defendant.

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THAM

$\mathcal{R}_{\mathcal{C}}$

It was the testimony of the $1^{st}$ and $2^{nd}$ defendant that upon selling the trees to the 3rd defendant, he paid to them 2,000,000/= therefore they demand from the plaintiff shs. 1,000,000/ $=$ . On the other hand, the 3rd defendant testified that he does not owe the plaintiff any money but rather that demands shs. $2,000,000/=$ from the $1^{st}$ and $2^{nd}$ defendants who sold to him trees which were confiscated.

It was the evidence of the court witness Nabuto Agnes that the 3rd defendant cut down the trees for two weeks and left an empty place. In my view, this was more than the shs. 2,000,000= the $3^{rd}$ defendant had paid to the $1^{st}$ and $2^{nd}$ defendants. He does not deserve to be reimbursed. The $1^{st}$ and the $2^{nd}$ defendant received shs. 2,000,000= from the $3^{rd}$ defendant. They would have been paid the balance of shs. $1,000,000$ = but the trees of the plaintiff cut were far more than the amount they were owed. They do not deserve the balance claimed. Hence the counterclaim is dismissed.

#### Interest.

$\mathcal{L}$

It is a settled position of the law that interest is awarded at the discretion of court. In this case I award interest at a rate of 18% per annum from the date of delivery of this judgement till payment in full.

#### Costs of the suit.

Section 27 of the Civil Procedure Act cap 282 provides that costs shall follow the event. The plaintiff in this suit is entitled to costs. In the circumstances, I award costs of this suit to the plaintiff.

**Wherefore,** judgment is entered in favor of the plaintiff with the following orders;

- a) The defendants did not trespass on the land in issue. - b) The plaintiff is awarded twenty million shillings (shs. $20,000,000=$ ) in compensation for the trees cut. - c) There was no destruction of immature trees. - d) The plaintiff is awarded general damages of ten million shillings $(shs. 10,000,000/=)$

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- e) Interest of 18% per annum shall be paid on the award in (b) and (d) above from time of delivery of this judgment till payment in full. - f) No Permanent injunction issued against the defendants. - g) The defendants' counterclaim is dismissed without no orders to costs - h) The plaintiff is granted costs of the suit.

I so order.

wam

**KAREMANI JAMSON. K**

**JUDGE**

25/09/2024