Ochobo and 2 Others v Akurut (Civil Appeal 40 of 2023) [2024] UGHC 821 (13 March 2024)

Full Case Text

The Republic of Uganda

In the High Court of Uganda Holden at Soroti

Civil Appeal No. 40 of 2023

(Arising from Civil Suit No. 13 of 2017 of the Chief Magistrate's Court of Kumi at Kumi)

- 1. Ochobo Amos - 2. Ongodia Martin **.....................................** 3. Ongodia Charles

Versus

Akurut Florence ::::: <pre>....................................

Before: Hon. Justice Dr Henry Peter Adonyo

## Judgement

(An appeal against the judgment in Civil Suit No. 13 of 2017 of the Chief Magistrate's Court of Kumi at Kumi delivered on 20th February 2023 by Grade One Magistrate - HW Maloba Ivan)

1. Introduction:

The appellants were the defendants in the lower court, and being dissatisfied, they 20 brought this appeal challenging the judgement and orders of the trial magistrate.

2. The respondent/plaintiff's claim:

The Plaintiff sued the Defendants jointly and severally for a declaration that she is the rightful owner of three gardens of land located in Nyero village, Nyero subcounty, Kumi District; an Order for a permanent Injunction restraining the 25

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- Defendants jointly and severally, their agents, employees and servants from carrying $\mathsf{S}$ on any activity on the land in dispute; an order for General damages for both inconvenience and loss suffered; costs of the suit and any other remedy this Honourable Court may deem fit. - The plaintiff claimed that she is the only surviving child of Okwerede Joseph, who died in 2002 and left an estate which included seven gardens comprised in Nyero 10 village, Nyero parish, Nyero sub county Kumi district. The plaintiff inherited the suit land after her father's death; she was named the heir. At that time, the plaintiff was married somewhere else and appointed Akojo James as a caretaker of the same estate. In 2017, the defendants, without authorisation, entered into the three gardens and are still cultivating the land to date. The matter was reported to the 15 LC3, and the matter was decided on 26/12/2017 in favour of the plaintiff, though it was brought in the name of the caretaker. The defendant did not like thus this suit before this court.

## 3. The Appellants'/defendants' claim:

The first and second appellants/defendants claim that Ongodia William inherited the 20 suit land from his late father, Nyalio Thomas, who had been using it from the 1960's to the present.

The first and second defendants are nephews of the third defendant and are children of Ocuwa Peter. The defendants are in possession of the land.

At the trial in the lower court, three issues formed the basis of the trial magistrate's 25 resolution of the dispute: Who is the rightful owner of the suit land, whether the

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defendants are trespassers on the suit land and what remedies are available to the $\mathsf{S}$ parties?

The trial court resolved the above issues in favour of the respondent. The trial magistrate proceeded to enter judgment in favour of the respondent/plaintiff and declared the following orders: A declaration that the plaintiff is the rightful owner of the suit land situate in Nyero village, Nyero parish, Nyero sub-county, Kumi District measuring approximately three gardens, a declaration that the defendants are trespassers on the suit land, an order of permanent injunction is hereby issued restraining both the Defendants jointly and severally, their agents, employees and servants from carrying on any activity on the suit land, an order of General Damages of UGX 10,000,000/= (Ten Million Uganda shillings) against the $1^{\rm st}$ and $2^{\rm nd}$

defendants for the inconvenience caused to the Plaintiff and costs of the suit awarded to the Plaintiff.

The lower court's judgment having been delivered in favour of the respondent, the appellants (the plaintiffs) have now appealed.

#### 4. Grounds of Appeal: 20

According to the memorandum of appeal, the appellants raised five grounds of appeal as follows:

- a) The Trial Magistrate failed to judiciously evaluate the evidence on record, thereby arriving at an erroneous decision. - b) That the trial magistrate erred in law and fact when he misunderstood the evidence of the $1^{st}$ and $2^{nd}$ appellants to mean that they were not interested in the suit land.

- c) That the trial magistrate erred in both law and fact when he found that the appellants offered contradictory and inconsistent evidence. - d) That the learned trial magistrate erred in law and fact when he awarded the appellants general damages of UGX 10 million without giving any basis for such an award. - e) That the decision of the trial magistrate in decreeing the suit land to the respondents is against the weight of evidence on record and has occasioned a total miscarriage of justice.

The appellants prayed that judgment be entered in their favour as follows:

- a) The appeal be allowed. - b) Judgement and Orders of the lower court be quashed and set aside. - c) The suit land be decreed to the appellants. - d) Costs of this appeal and in the lower court be awarded to the appellants.

## 5. Duty of the first appellate court:

This is the first appeal from the learned magistrate's decision. The duty of the first 20 appellate court is to scrutinise and re-evaluate all the evidence on record to arrive at a fair and just decision.

This duty was well laid down in the case of Kifamunte Henry vs Uganda SCCA No. 10/1997, where it was pointed out.

"The first appellate court has a duty to review the evidence of the case and to reconsider the material before the trial judge. The appellate court

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must then make up its own mind, not disregarding the judgment appealed from but carefully weighing and considering it."

In the case Father Nanensio Begumisa and three others vs Eric Tiberaga SCCA 17 of 2000; [2004] KALR 236, the obligation of a first appellate court was pointed as being;

> "...under an obligation to re-hear the case by subjecting the evidence presented to the trial court to a fresh and exhaustive scrutiny and reappraisal before coming to its own conclusion."

# See also: Baguma Fred vs Uganda SCCA No. 7 of 2004.

6. Power of the Appellate Court:

Section 80 of the Civil Procedure Act, Cap 71, grants the High Court appellate powers to determine a case to its finality. 15

In resolving this appeal involves considering the above legal position regarding the duty and legal obligation of the first appellate court.

## 7. Representation:

M/s Isodo & Co. Advocates represented the appellants, while M/s Legal Aid Project of the Uganda Law Society represented the respondent. The parties filed their 20 submissions, and the court is grateful. The submissions have been incorporated in the resolution of this appeal.

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As this is a civil suit, the appellants have the burden of proof (sections 101 and 102 $\mathsf{S}$ of the Evidence Act, Cap 6) to prove their case on a balance of probabilities. See: Nsubuga vs Kawuma [1978] HCB 307.

In the case of Erumiya Ebyetu v. Gusberito [1985] HCB 64, it was held that

"where the plaintiff leaves his case in equilibrium, the court is not entitled to incline the balance in his favour. The plaintiff must prove his case against the defendant to the required standard."

### 8. Determination:

In their submissions, the appellants' counsel abandoned grounds 2, 3, and 5 of the appeal and indicated that he would argue grounds one and four but, in essence, only argued ground four. The respondent's counsel also argued ground four only. I will follow suit.

a) That the learned trial magistrate erred in law and fact when he awarded the appellants general damages of UGX 10 million without giving any basis for such an award.

Counsel for the appellant submitted that during the trial, the plaintiff/respondent 20 did not adduce evidence that she suffered any loss or inconveniences to warrant any award of general damages. Counsel for the appellants submitted that it is the plaintiff's / respondent's duty to plead, particularise and lead evidence to demonstrate the loss she wants to be atoned by an award of general damages, which, apart from mentioning it under paragraph 5 of the plaint, the respondent did 25 not even particularise them as required, yet to counsel, it would have helped the appellants to know what her 'suffering' and 'inconvenience' is. Counsel cited the

case of Benedicto Musisi vs Attorney General HCC No.622/1989 (1996)1KALR164 it $\mathsf{S}$ where it was held that the;

> "Plaintiffs must understand that if they bring actions for general damages, it is for them to prove their damage, it is not enough to write down particulars and, so to speak, throw them at the head of court saying, this is what I have lost, I ask you to give these damages." They have to prove it.

Counsel for the appellants submitted that the trial magistrate neither gave reasons for awarding UGX 10 Million against the appellants in his judgment nor is there any evidence on record to support the award, and yet according to the case of *Eidoshal*

- Madatali Keshwani Habib & Anor vs. DAPCB HCMC No.11 of 2019, whereas general 15 damages are awarded discretionary, such discretion must be exercised judiciously by giving reasons after consideration of pleadings and the evidence on record. Counsel invited the court to interfere with the assessment and award of UGX 10 million in general damages because, according to counsel, the learned trial magistrate did not have any basis for making such an award; wherefore, counsel 20 prayed that the appeal against the respondent's award of general damages of UGX 10 million without giving any basis for such an award be allowed, the judgment and orders of the lower court awarding UGX 10 million be quashed and set aside, and costs of this appeal and the lower court be awarded to the appellants. - On the other hand, the respondent's counsel submitted that damages are awarded 25 to compensate the aggrieved, fairly for the inconveniences accrued as a result of the actions of the defendant and that it is the duty of the claimant to plead and prove

that there were damages, losses or injuries suffered as a result of the defendant's $\mathsf{S}$ actions.

The respondent's counsel contends that the evidence on record shows that the appellants were aware of the respondent's interests in the suit land and are the ones who are still in occupation and possession of the suit land by way of cultivation contrary to the lower court's decision which passed judgment against them and the 10 appellants having also wasted the court's valuable time due to dubious acts and intention when they lied to the court that they inherited the said land from their father Ongodia who had even never utilised the same land and the appellants having informed the court too in their pleadings that they had no interest whatsoever on the suit land but due to greed had the intent of illegally grabbing the suit land from

the respondent to that end, counsel for the respondent contended that the general damages of UGX 10 million awarded by the lower court are sufficient to the respondent.

Counsel asserted that there is no reason to interfere with the award of general damages of UGX 10,000,000 since the appellants have been in possession and use 20 of the suit land minus the respondent who has lawful interests on the land to which end, the trial magistrate rightfully and judiciously exercised his jurisdiction when he awarded general damages of UGX 10,000,000.

Counsel submitted that the appellants' abandonment of grounds\_1, 2, 3 and 5 of their memorandum of appeal can serve as an admission of defeat, which implies 25 that the appeal lacks merit and should be dismissed accordingly with costs since there is no wrong without a remedy. - In rejoinder, counsel for the appellants submitted that the respondent had failed $\mathsf{S}$ and/ or avoided addressing the fact that beyond pleading general damages, and failing to particularize them, a party seeking to be awarded must also lead evidence to prove such loss suffered that needs to be atoned by an award of general damages. - It is undisputed that the appellants' counsel abandoned grounds 1, 2, 3 and 5 of their memorandum of appeal and instead argued ground four only, which was solely 10 reflected in the submissions of the appellants' counsel and the respondent's counsel.

Therefore, this appeal is about **Ground Four** which that:

"The learned trial magistrate erred in law and fact when he awarded the appellants general damages of UGX 10 million without giving any basis for such an award".

I will determine the appeal on that ground alone.

According to the plaint, the respondent (then plaintiff), among others, prayed for general damages for the inconvenience and loss suffered.

On pages 7 and 8 of the trial court judgment, the trial magistrate found in favour of 20 the plaintiff as the rightful owner of the suit land and that the defendants trespassed on the plaintiff's land. Among other orders prayed for by the plaintiff, the trial magistrate issued an order of general damages of UGX 10,000,000/= (Ten Million Uganda shillings) against the 1st and 2nd defendants for the inconvenience caused to the plaintiff. 25

According to Garner (2009) Black's Law Dictionary (9thed.) on page 446,

- General damages are damages that the law presumes follow from the type of wrong $\mathsf{S}$ complained of; specif., compensatory damages for the harm that so frequently results from the tort for which a party has sued that the harm is reasonably expected and need not be alleged or proved. General damages do not need to be specifically claimed. - Also termed direct damages; necessary damages. - According to Paragraph 15.6.19 on page 171, Ssekaana, M., & SN. Ssekaana, S. 10 (2019). Civil Procedure and Practice in Uganda (2nd ed.). LawAfrica, general damage is such as the law will presume it to be the natural consequence of the defendant's act. It arises by inference of law and may be averred generally. See [Ouma Vs. Nairobi City Council [1976] KLR 297]. - In paragraph 15.6.20, Ssekaana, M., & SN. Ssekaana, S. (2019) opines that; 15

Where the plaintiff claims that he has suffered damage, e.g. injury, of a kind which is not the necessary and immediate consequence of the wrongful act complained of, it is his duty to plead full particulars to show the nature and extent of damage claimed i.e. the amount which he claims to be recoverable, irrespective of whether they are general or special damages. This operates fairly to inform the defendant of the case he has to meet and to assist him in computing, if he so desires, a payment in court.

(Shah vs Muhamed Hajji Abdalla [1962] EA 769. (Paragraph 15.6.20)

The law on general damages is that the damages are awarded at the discretion of the Court, and the purpose is to restore the aggrieved person to the position they would have been in had the breach or wrong not occurred.

See: Hadley v. Baxendale (1894) 9 Exch. 341

$\mathsf{S}$ According to the Uganda Civil Justice Bench Book on page 207,

General damages such as pain, suffering and loss of amenities are by their nature wholly non-financial loss, and compensation cannot possibly be calculated; it can only be evaluated on some basis. The basis chosen for evaluation is basically convention, coupled with comparison with previous awards, experience and sheer intuition. The process is not arbitrary as it may seem.

Under paragraph 7.2.13.2 of the Uganda Civil Justice Bench Book under the head, arriving at the figure for pain and suffering, the starting point is medical evidence, the second stage is to look up the awards that have been made in the past cases of a similar nature. The claimant must actually experience pain and suffering for any damages to be awarded under this head.

In the case of Takya Kushwahiri & Another versus Kajonyu Denis CACA 85 of 2011, it was held that general damages should be compensatory in nature in that they should restore some satisfaction as far as money can do to the injured Plaintiff.

In *Uganda Commercial Bank versus Kigozi [2002]1 EA 35*, the Court gave guidance on how to assess the quantum of damages that; "the consideration should mainly be 20 the value of the subject matter, the economic inconvenience that a party may have been put through and the nature and extent of the breach or injury suffered".

In Paragraph 130 of Atkin's Court Forms, Torts Vol 38(1), It is not necessary to particularise general damages in pleadings as the law presumes these to flow from the wrong complained of but it should be averred that damage has been suffered.

It was the evidence of the plaintiff as PW1 that after her father's death, the $\mathsf{S}$ defendants in 2017 went onto the suit land and started staying on it and cultivating maize and green thereon.

During re-examination, PW1 told the court that the 3rd defendant was the one who sent the $1^{st}$ and $2^{nd}$ defendants to cultivate the suit land.

- This evidence was corroborated by PW2, the caretaker of the land, who told the 10 court that the defendants got onto the land around 26th February 2017 with a hand hoe and green gram, and they started cultivating. He added that upon seeing them, he inquired whether they were lost or had intentions to cultivate the land forcefully, to which they responded that PW2 should report to the authorities if she felt bad. - During re-examination, he confirmed that he had been in possession of the land until 15 2017.

The defendants did not dispute the cultivation of the land as DW1, who is the first appellant, testified that from the time his father died in 1986, it had been him, Ongodia Martin, Inyalia Charles and their mother who had been utilising the land cultivating sorghum, potatoes, cassava and green grams among others.

DW2 testified contradicted himself as to when he started utilising the suit land, both in 2003 and 2013, but the fact remained that he told the court that he had been using the land. During locus, the court found cassava planted by the 1st and 2nd defendants.

Therefore, it is not disputed that the defendants, now appellants, utilised the suit 25 land for cultivation purposes, yet the land belonged to the respondent as decreed by the trial court.

In the case of Imukot and Others v Arukori (Civil Appeal No 32 of 2021) 2023 UGHCCD $\mathsf{S}$ 121, I observed the following:

> "In my considering the above submissions in respect of the award of reliefs, such as general damages, I do state that the position of the law, as has been established by decided cases, is that an award of general damages is the direct probable consequence of the act complained of. Such consequences may be loss of use, loss of profit, or physical inconvenience. Likewise, the award of general damages is discretionary one for a court and is in respect of what the law presumes to be the natural and probable consequence of a defendant's act or omission as was held in James Fredrick Nsubuga v. Attorney General High Court Civil Suit No. 13 of 1993 and Erukana Kuwe v. Isaac Patrick Matovu and Another, High Court Civil Suit No. 177 of 2003."

In Imukot and Others v Arukori (supra), I pointed out that it is trite that an appellate court will not interfere with an award of damages by a trial court unless the trial court is found to have acted upon a wrong principle of law or that the amount 20 awarded is so high or so low as to make it an entirely an erroneous estimate of the damages to which the plaintiff is entitled. I intend not to depart from the above holding in this matter.

I have perused the proceedings, pleadings and submissions in the lower court, and in this instant appeal, I have failed to find any reason to fault the trial magistrate for 25 having acted upon a wrong principle of the law in awarding the general damages of UGX 10,000,000 neither did the appellants contend that it was exorbitant.

- Besides, general damages are discretionary as they need not be proved and I find $\mathsf{S}$ that the inconvenience arises in the purview of the undisputed fact that the appellants (1st and 2nd) utilised the suit land for cultivation purposes without the respondent's permission, yet she owned the suit land; in other words, the 1st and $2nd$ appellants trespassed on the suit land. - In the instant case, I find and conclude that the award of general damages of UGX 10 10,000,000 was discretionary and judiciously exercised, taking into account the undisputed fact that the appellants cultivated the suit land to the detriment of the respondent.

As such, the amount awarded as general damages is, in my view, just and reasonable under the circumstances, and accordingly, I will not interfere with the trial court's

discretion in that respect.

Bearing the above in mind, ground four, which was the only ground argued in this appeal, fails. In effect, this appeal is unmeritorious and is hereby dismissed.

Under Sec.27 of the Civil Procedure Act, costs follow the event. This position was reechoed in the case of Primchand Raichand Ltd & Another vs Quarry Services of East 20 Africa & 6 Others [1972] EA 162 where it was held that "a successful litigant ought to *be fairly reimbursed for costs he had incurred ..."*

In this case since the appellants' appeal has failed the costs would be awarded to the respondent in any event.

## 9. Conclusion and Orders:

This instant appeal is found unmeritorious and is thus hereby dismissed accordingly with the following ordered issued.

- This appeal is dismissed for want of merit. $\overline{\mathbf{L}}$ - The judgment and orders with respect to the award of general damages of UGX $\overline{\phantom{a}}$ 10,000,000 against the 1st and 2nd defendants/appellants in Civil Suit No. 13 of 2017 of the Chief Magistrate's Court of Kumi at Kumi delivered on 20th February 2023 by Grade One Magistrate—HW Maloba Ivan are hereby upheld. - The costs of tis appeal and in the court below are awarded to the respondent. $\overline{a}$

I so order.

Hon. Justice Dr Henry Peter Adonyo

Judge

13th March 2024

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