Ojune and Another v Ogwere (Civil Appeal 60 of 2023) [2024] UGHC 819 (16 August 2024)

#### The Republic of Uganda

### In the High Court of Uganda Holden at Soroti

Civil Appeal No. 60 of 2023

(Arising from Civil Suit No. 007 of 2016 of the Chief Magistrate's Court of Katakwi at Katakwi)

1. Ojune Moses

2. Okoboi Michael ::::::::::::::::::::::::::::::::::::

Versus

Ogwere Erinayo ::::::::::::::::::::::::::::::::::::

Before: Hon. Justice Dr Henry Peter Adonyo

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#### Judgement

(An appeal against the judgment and orders of Her Worship Abalo Agnes Oneka, Magistrate Grade One of the Chief Magistrate's Court of Katakwi at Katakwi, delivered on 27<sup>th</sup> June 2023)

1. Introduction:

- Ogwere Erinayo (the respondent) sued Ojune Moses and Okoboi Michael (the 20 appellants) for; - a) trespass and recovery of sixteen gardens located at Amalera village, Usuk subcounty (suit land) in Katakwi district,

- b) a declaration that he is the rightful owner of the suit land, that the appellants are trespassers together with their agents, - c) an order of vacant possession, - d) a permanent injunction against the defendants and those claiming through them, general damages and;

10 e) costs of the suit.

2. The plaintiff / now respondent's claim:

The respondent pleaded that in 1982, Ojula Erinayo, his late father, who owned the suit land, gave it him. The respondent averred that he utilised the suit land through cultivation and construction and even got married thereon.

The respondent further pleaded that he lived with his late father on the suit land 15 until his father's death in 2010, leaving him alone on the suit land and that upon the death of his father, the appellants trespassed on part of the land, but with the help of the clan leaders, the boundary was corrected.

That, however, in 2015 the appellants removed the said boundary and continued with their act of trespass. 20

# 3. The defendants/ appellants' claim:

The appellants/defendants denied the plaintiff's claim and contended that they were the rightful ownership of the suit land having inherited the same from their late father called Ogwere George William, who they claim also inherited it from his late father, Illaborot Gabriel, the original owner and who was the grandfather their appellants.

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The 2<sup>nd</sup> appellant contended further that in 2003 he was granted letters of $\mathsf{S}$ administration of the estate of his late father Ogwere George William and was the administrator of his estate.

The appellants further contended that the respondent had never utilised the suit land, unlike themselves who had been in possession of the same since their birth in 1968 and 1975, respectively.

At the lower court trial, four issues formed the basis of the trial magistrate's determination of the dispute and these were;

- whether the suit land forms part of the estate of the late Ojula Erinayo or that of Ilaborot Gabriel, - who of the parties is the rightful owner of the suit land, 15 - whether the defendants have trespassed onto the suit land and $\mathcal{L}(\mathcal{L})$ - the remedies available to the parties.

The trial lower court received evidence from the parties and visited the locus in quo on 19/04/2023.

In its judgment, the trial lower court found the suit in favour of the respondent who 20 was declared as the rightful ownership of the suit land located at Amalera village, Usuk sub-county, in Katakwi district.

The trial court also issued an order of vacant possession against the appellants and those claiming any rights through them and furthermore issued a permanent injunction restraining the defendants (now appellants), their agents or servants

from trespassing on the suit land in addition to awarding the respondent general $\mathsf{S}$ damages amounting to UGX 5,000,000 and the costs of the suit.

The appellants being aggrieved and dissatisfied with the trial magistrate's decision and orders, have now appealed to this Honourable Court.

4. Grounds of Appeal:

The appellants raised five grounds of appeal as follows: 10

- a) The learned trial Magistrate erred in law and fact when she failed to weigh properly and in a balanced manner the evidence on the court record as adduced by either side and only concentrated on that of the Respondent, but if she had done so, she would have come up with a judgment in favour of the Appellants. - b) The learned trial Magistrate, upon visiting the locus in quo, conducted the *locus in quo* proceedings in an irregular manner, as she only concentrated on the boundary and never moved around the 16 gardens in dispute as requested by the Appellants to identify the extent of where the 16 gardens claimed by the Respondent ended. - c) The learned trial Magistrate erred in law and fact when she based her decision solely on the evidence in chief in finding for the Respondent without taking into account cross-examination, which immensely destroyed the Respondent's evidence. - d) The Learned Trial Magistrate erred in law by awarding general damages to the Respondent that were unjustified and excessive.

e) The decision of the Learned Trial Magistrate occasioned a miscarriage of justice on the appellants.

The appellants prayed that their appeal be allowed and that the judgement and orders of the learned trial Magistrate Grade One be set aside and that they be declared the rightful owners of the suit land with costs to be borne by the respondent.

## 5. <u>Representation:</u>

Counsel Ajum Francis represented the appellants while Counsel Omurangi Lillian represented the respondent. The court is thankful to both counsels for the parties for the written submissions which are hereby considered and referred to where necessary together with the proceedings and judgment of the lower trial court in the resolution of this appeal accordingly.

a) Duty of the first appellate court:

This Honourable Court is the first appellate court in respect of the dispute between the parties herein and is empowered by Section 80 of the Civil Procedure Act, Cap 71 to determine a case to its finality.

Further, as was decided in the case Father Nanensio Begumisa and Three Others vs Eric Tiberaga SCCA 17 of 2000; [2004] KALR 236, it is;

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

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See also: Banco Arabe Espanol v Bank of Uganda I [999] UGSC I. Rwakashaija Azarious $\mathsf{S}$ and others v Uganda Revenue Authority [2010] UGSC 8.

Supplementary, the duty of the first appellate court as was well stated by the Supreme Court of Uganda in its landmark decision of Kifamunte Henry Vs Uganda, SC, (Cr) Appeal No. 10 of 2007 is to;

"... review the evidence of the case and to reconsider the materials before the 10 trial judge. The appellate Court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it"

In rehearing afresh, a case which was before a lower trial court, this appellate court is thus required to take due allowance and cognisance of the fact that it has neither 15 seen nor heard the witnesses and where it finds conflicting evidence, then it must weigh such evidence accordingly, draw its own inferences and make its own conclusions. See: Lovinsa Nakya vs. Nsibambi [1980] HCB 81.

In resolving the instant appeal, the above legal position regarding the duty and legal

- obligation of the first appellate court are born in mind. 20 - Furthermore, as this is a civil suit/appeal, the appellants are the ones who have the burden of proof as is provided for by sections 101 and 102 of the Evidence Act, Cap 6 to prove their case on a balance of probabilities. Also see: Nsubuga vs Kawuma [1978] HCB 307. - Also, in the case of *Erumiya Ebyetu v. Gusberito [1985] HCB 64*, it was held that; $25$

"... 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."

Additionally, in the case of Emily Luwedde Vs Yafesi Kitimbo Civil Suit No. 108 of 1999 it was held that;

"As a general rule, in civil cases, the burden of proof lies upon the plaintiff who must 10 prove his or her case on the balance of probabilities if he or she is to deserve the reliefs he or she seeks. (See: Olinda De Souza Vs. Kassamali Nanji (1962) E. A. 756. However, when it comes to particular allegations made by each party, the principle remains that whoever alleges any fact or set of facts to exist must prove the

allegation." 15

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All the above decisions thus emphasize the fact that he who alleges must prove.

6. Determination:

7. Grounds 1 and 3:

Considering the grounds of appeal as presented, I have decided to resolve them as follows: Grounds 1 and 3 together followed by Ground 2, then Ground 4, and lastly, Ground 5.

- The learned trial Magistrate erred in law and fact when she failed to weigh properly and in a balanced manner the evidence on the court record as adduced by either side and only concentrated on that of the Respondent, but - if she had done so, she would have come up with a judgment in favour of the Appellants. - The learned trial Magistrate erred in law and fact when she based her decision solely on the evidence in chief in finding for the Respondent without taking into

account cross-examination, which immensely destroyed the Respondent's evidence.

According to the records of the lower trial court, the plaintiff Ogwere Erinayo (PW1), told court that he was given the suit land in 1982 though he did not produce any document to that effect but his witnesses corroborated his testimony in that respect.

The 1<sup>st</sup> appellant on the other hand testified that he belongs to the *Inyakoit* clan, unlike his maternal uncle, Ekwee Euromoit who belonged to the Ikelimo Icoma clan, from whom PW1 told the court Ojula Erinayo (respondent's father) got the suit land through inheritance. The respondent, however, did not prove the customary practice or rules of the suit land exchange between two mentioned clans.

However, his witnesses in their testimonies were consistent in tracing inheritance from Ekwee Euromoit to Ojula Erinayo to the respondent.

PW1 pleaded and testified that the 1<sup>st</sup> appellant trespassed on the land in 2010 and was stopped, but that in 2015, the appellants again trespassed on the land by planting trees.

Along Paul (PW2) gave evidence supporting the plaintiff and confirmed that the suit land originally belonged to Euromoit and Onyait, who acquired the suit land as a vast, vacant virgin land. That Euromoit gave some portion of his land to his nephews Okukwai and Ojula Erinayo, the plaintiff's father.

That the two both took possession of the same and utilised it for cultivation and 25 settlement and that while the late Erinayo Ojula gave his land to the plaintiff, the


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defendants encroached onto the same land but he does not know how much land $\mathsf{S}$ they had encroached upon due to his inability to walk due to sickness. (This witness was even carried to court).

Contrariwise, the appellants and their witnesses presented evidence indicating that they rightfully own the suit land, having inherited the same in 2003 from their late father, Ogwere George William, who also inherited it from his late father, Ilaborot Gabriel, the original owner and who was the grandfather of the defendants/appellants.

The appellants further contended that they had been in possession of the suit land since their birth in 1968 and 1975, respectively with the 1<sup>st</sup> appellant (DW1) deposing that the respondent started laying claims over the suit land in 2003.

The 1<sup>st</sup> appellant further maintained that both the late Ogwere George William and llaborot Gabriel were buried on the suit land which assertion was found to be untrue according to the locus report and the observations by the trial magistrate.

My perusal and scrutiny of the proceedings of the lowers trial court show that the appellants' claim of ownership of the suit land was so much grounded on documents 20 D. Exh.1 and D. Exh.2, which represented, respectively, minutes of the clan of Invakoit clan and an attendance lists with the said clan apparently settling dispute over the suit land between persons from whom the parties therein derive their interest or who are closely connected with them.

My scrutiny of these exhibits show the following. In the minutes marked D. Exh1, 25 the meeting deliberated on one Ongaria Polito's land and was about the intention

of the widow of the late Ongaria Polito selling that land and not boundaries as the $\mathsf{S}$ appellants' postulate.

Nothing in that document show that the respondent had encroached on the appellants' land even though the respondent Ogwere Erinayo indicated in the minute as an attendee No. 19, Ojune Moses as No. 37 and Okoboi Michael as No. 10.

D. EXh1 thus cannot be relied upon in confirming the facts of the settlement of the dispute between the parties herein.

In relations to D. EXh2, it was for the demarcation of boundaries between Polito Ongaria's land and that of Ilaborot Gabriel with its the Attendance Sheet dated 18<sup>th</sup> March, 2015 showing Okoboi Micheal as an attendee No. 1, Ogwere E as an attendee No. 15, and Ojune Moses as an attendee No. 30. The meeting was for Inyakoit clan and it was held on Wednesday, 18<sup>th</sup> March 2015 for the purpose of the showing the demarcations and the boundaries of land between the family of the late Polito Ongaria and the family of the late Ilaborot.

Representatives were the widow of the late Ongaria and an elder brother from the 20 late llaborot and Ogwaraileng Stephen; these were the representatives the parties selected to be on either part.

On further perusal and of particular interest is the paragraph below;

"This is stated on Polito Ongaria's land; Muzei Okukwai claimed that Ongaria was brought to suckle their mother's breasts and that he merely occupied their maternal uncle's land.

Asked by the chairman whether Ongaria wasn't Aesekol's son to own a share of the land. The old man accepted that he was.

The LCII chairman, Mr Epedol Francis asked Kalani to tell people ways of acquiring land. Kalani said there are two ways of inheriting land i.e. Customary and (ii) buying. Asked whether the land he's occupying is really his or not, Ogwere Joseph said it was his.

Atim Norah, the widow made a lasting and decisive statement.

She said as they didn't have any children, her husband went to Okukwai to let them have John Oma to stay with. But since Oma was the only son, Okukwai advised Ongaria to go to Erinayo to get one boy as he had many.

So, Erinayo gave them Ogwere Joseph on 24/12/1975. In 1978, they had a domestic quarrel and she went back to their home.

Ongaria paid Ogwere's school fees, uniform and stationary. He endorsed him as an Heir.

She, therefore, wondered how she could sell the land while Ogwere, the heir, was there. "Anyone opposing Ongaria's inheritance?" she asked.

Nobody raised a hand. She promised to show the clan Ongaria's chunk of land that's now Ogwere's.

On the way forward, Atim Norah was to show/take around the clan committee members to Onagria's land to be officially handed over to Ogwere Joseph."

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What can be deduced from the above is that the landowners from whom the $\mathsf{S}$ appellants and the respondents derived the customary interest did not participate in the boundary demarcation on 18<sup>th</sup> March 2015 because PW3 Okure John Gerald told the court that Ongaria Polito and Ilaborot had passed on.

This is fact which was conceded by DW2 in cross-examination that nothing indicated that the meeting dealt with the issue of the suit land belonging to them.

The appellants merely adduced and relied on DEXh2 as proof of boundary demarcation of the suit land and DEXh 2 clearly indicates that the land belonged to Ongaria Polito, who is related to the respondent. While the respondent pleaded in his plaint inheritance from his late father and his witnesses also traced the inheritance, nothing was said of Ongaria Polito apart from him being a herdsman. Interestingly to note is that Ongaria Polito's widow, Norah Atim who testified on the appellants' side as DW3, told the court that while she participated in the meetings, she never signed any attendance and that the alleged boundary demarcating exercises were not successful but also maintained that the land was for Ongaria Polito and not traced to the appellants for whom she testified on behalf of.

PW1 Ogwere Erinayo testified that Ongaria Polito was a brother to his father and he used to take care his father's animals, which PW2 - Along Paul, supported under cross-examination as he reiterated that Ongaria Polito was the herdsman for Erinayo Ogwere and that he did not have personal land, no controverting evidence was received from the appellants in that regard.

Overall, the appellants and the respondents did not prove the customary practice of inheritance that they each pleaded.

I will now turn other evidence to answer the question of ownership of the suit land. $\mathsf{S}$

First and foremost, I must point out that there were inconsistencies in the evidence of the parties in relations to their pleadings.

DW3, Norah Atim, who testified on behalf of the appellants told the court that the suit land was 20 acres instead of 16 acres which was pleaded by the appellants in

their written statement of defence. DW3 further told the court that the land was for 10 Ongaria Polito.

Interestingly also the marked boundaries in DEXh2 of the land of Ongaria Polito and Ilaborot Gabriel after demarcation shows that there were Okulonyo, Etirir Engworot, Ekum, Ekore, Epapai, Ekiming trees which differed from those trees showing the

demarcation that the appellants, through Okwalinga Stephen DW4 adduced in 15 evidence and which they presented during the locus visit on 19<sup>th</sup> April 2023 which were Ebobore, Ekum, Epapai, Ekwakwa (2) on the anthills, Okulonyo trees and sisal plants and an anthill.

The appellants also had differing sizes of the suit land, with one of them telling the court that the suit land was 60 acres!

My considered view is that while the appellants in the trial court and in the submissions of their counsel, strongly relied on DEX 1 and DEX 2 in proof that the suit land was yet both DEXh1 and DEXh 2 refer to boundary demarcations between Ongaria Polito and Ilaborot Gabriel only and also as has already seen above, the boundaries the appellants presented at locus were different from the ones which were indicated in DEXh 2 as even some of trees they mentioned varied from those mentioned in that document.


Correspondingly from their testimony and that of their witness, Atim Norah, the $\mathsf{S}$ exercise of boundary demarcation was even not successful.

Furthermore, I note from the proceedings of the lower trial that it is not in dispute that Atim Norah (DW3) once occupied the suit land which she admitted to have left in 1980.

DW3 also admitted that her late husband, Ongaria Polito, was related to the father 10 of the respondent.

The respondent explained that DW3's late husband was a herdsman for his late father.

DW3 was the appellants' witness but her testimony was that the suit land was for Ongaria Polito and this assertion by her contradicted the pleadings of the appellants 15 that they had inherited the suit land from their late father, Ogwere George William and thus owned the suit land yet they did not controvert or clarify DW3's testimony to the contrary.

In my considered view, clearly DW3's evidence contradicted the appellants' evidence and rendered support to the evidence of the respondent's because 20 Ongaria Polito, who was said to be the owner of the suit land, was related to the respondent's father.

The plaintiffs' witnesses contended that they attended clan meetings meant to solve the disputes on the suit land but that both (PW2 – Along Paul) and (PW5 Alemo Anna

Leah) failed to prove this fact with moreover DW3 (Norah Atim) who was also the 25 appellants' witness telling the court that though there was a boundary dispute, the

- first meeting was postponed to the 2<sup>nd</sup> meeting which itself was not also successful. $\mathsf{S}$ DW3 also testified that she participated in showing the clan the boundaries for the land of Ongaria Polito but admitted never signing either the DEX 1 and DEX 2 which assertion casts doubt on the success of the meetings from the appellants' own witness and her actual attendance. - Furthermore, DW1 Ojune Moses told the court that his late father Owere George 10 and Illaborot Gabriel were buried on the suit land, but these graves were not visible or shown to the court at locus.

On the other hand, the respondent showed demarcations like the Ecomai tree, which aligned with his testimony in court.

The appellants contended that the respondent encroached on 60 acres, yet their 15 witness, DW3, Atim Norah, told the court 20 acres; at a locus, the appellants did not show the 60 acres on which the respondent had encroached.

In paragraph 2 of the written statement of defence, the appellants pled that the respondent had trespassed on 16 acres but they both testified to 60 gardens as the

land in dispute. $20$

> They also both pleaded that the interest of their father, Ogwere George William, which he inherited from their grandfather Illaborot Gabriel, was inherited by them in 2004, yet they contended that they had been in occupation and use of the suit land from 1968 for the 1<sup>st</sup> appellant and in 1975 for the 2<sup>nd</sup> appellant.

These discrepancies in dates raises more speculation because it is thus difficult to 25 tease out clearly as to whether they owned the land before their inheritance or


whether they received the land as gifts inter vivos or after the death of their late $\mathsf{S}$ father. These inconsistencies make the respondent's testimony to be more believable than the appellants as even exhibits DEXh1 and DEXh2 on which the appellants heavily rely came only after the alleged owners of the suit land had died.

This is coupled with the fact that the appellants failed show any graves of their father and grandfather during locus in quo visit by the trial court yet in their testimonies in 10 court they had testified that the father and grandfather were buried on the suit land.

Further, PW3 Okure John Gerald testified that Erinayo Ojula was cultivating the land in 1951. PW6 Besimesi Akwee told the court that the suit land belonged to the respondent's uncle. She testified that the appellants' grandfather, Illaborot Gabriel,

was staying on the suit land but not the father of the appellants, Ogwere George. 15 She confirmed to the court that the grave of Ogwere George is not on the suit land.

She testified that while the defendants had cultivated on the suit land, she did not feel bad about it because she knew that the respondent had permitted them.

She clarified that Illaborot was not buried on the suit land and where he stayed. While the appellants relied on the evidence of PW6 to render the view that even a $20$ respondent's witness stated that their grandfather stayed on the suit land, PW6 challenged the evidence of the appellants as to the burial of their grandfather on the suit land and stated that he was not buried on the suit land.

PW5 testified that the respondent used the suit land from 1983 to 1991. DW4 told the court that nothing resolved the disputes, unlike the other appellants' witnesses, 25 who said that the clan meetings were successful; this cast doubt on the appellant's testimony in that regard because it was conflicting.

I also note that there were inconsistencies by both parties on the size of the land. $\mathsf{S}$ For example, whereas the respondent pleaded that the suit land was 16 acres, he (as PW1) testified that the same was 20 acres with his witness Enyakoit Ojura George (PW6) testifying that the same was 60 acres.

However, Okolimo Pampas (PW5) testified that the appellants were using 16 gardens of the plaintiff.

Similarly, while the appellants pleaded that the suit land was 16 acres both testified to 60 acres though their witness DW3 testified to 20 acres, the same as the respondent in his testimony before the court.

All in all, the respondent's case was more consistent than the appellants' and thus more persuasive on a balance of probabilities. Grounds 1 and 2 are therefore 15 answered in the negative.

8. The learned trial Magistrate, upon visiting the locus in quo, conducted the locus in quo proceedings in an irregular manner, as she only concentrated on the boundary and never moved around the 16 gardens in dispute as requested by the Appellants to identify the extent of where the 16 gardens claimed by the Respondent ended.

The appellants' counsel submitted that it was thus erroneous of the trial court to rely on a failed visit the locus in quo yet that visit was crucial in resolving the competing and varying evidence about the size of the land in dispute because PWI stated it to be 20 acres, PW6 stated it to be 60 acres, PW5 stated the suit land to be 40 acres

- To the appellants' counsel, the trial court should have established with certainty the $\mathsf{S}$ boundaries of the suit land, find the size of the suit land given the fact that both the respondent, his witnesses and the appellants together with their witnesses all stated different acreage, which was not in line with what had been pleaded to have been trespassed on. - I have already noted the varying sizes of the land alluded to by the witnesses across 10 the board.

However, the size of the suit land being 16 acres is consistent and confirmed by more than one witness on either side despite the varying sizes.

Also the trial magistrate when dealing with these contradictions noted the following 15 on page 4 of her judgement:

> "... the court visited locus the findings were as follows: the boundary marks separating the suit land and the defendants were as described by the plaintiff in evidence, the Ecomai on an ant hill together with the sisal plants were visible on the western side and it only aligned with the boundary but it was outside the suit land. The old homestead of the plaintiff was not visible, and it was the plaintiff's evidence that it collapsed in 2007. The defendants have ploughed part of the suit land and have planted only one line of Eucalyptus on the suit land the rest are out of the suit land. The houses stated in evidence by the defendants were not on the suit land. There were no visible graves of the late llaborot and Ogwere George William as stated by the defendants. The plaintiff borders the suit land to the North while defendants to the West. It was the defendants'

> > 18

## evidence that it is the features on the North that separates their land from that of the plaintiff."

There were differing sizes of the land in dispute, as already articulated in my resolution of grounds one and two; however, 16 acres resound consistently more in the respondent's evidence/ witnesses than in the appellants' witnesses' testimony of 60 acres and 20 acres for DW3

I have perused and examined the sketch plan drawn by the trial magistrate and have perused the locus notes. I am convinced that the locus gave particular attention to the witnesses for them to show the trial magistrate the boundaries and the features of the suit land that they had testified about. I do not find any irregularity in how the trial magistrate conducted the locus or the sketch map she generated.

I am fortified in my view by the mode that proceedings at the locus in quo as directed by <u>Regulation 3 of Practice Direction No. 1 of 2007</u> which provides as follows:

"Visits to Locus in Quo"

During the hearing of land disputes, the court should take interest in visiting the locus in quo, and while there: 20

- a. Ensure that all the parties, their witnesses, and advocates (if any) are present. - b. Allow the parties and their witnesses to adduce evidence at the locus in quo. - c. Allow cross-examination by either party or his/her counsel. - d. Record all the proceedings at the locus in quo. - e. Record any observation, view, opinion or conclusion of the court, including drawing a sketch plan, if necessary.

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The respondent's counsel cited the case of **Bwire John Guloba versus Wanyama** $5$ Manasi & Oweri Joel HC-04-CA-092-2008, for the proposition that "...the purpose of a visit at the locus is to allow witnesses to clarify what they have in examination.

I have had the benefit of perusing the trial case proceedings. I note that according to the locus notes, the trial magistrate gave the witnesses opportunities to clarify their testimony on the locus.

Therefore, in my view, this ground fails as the trial magistrate conducted the locus in quo proceedings in a regular manner as per Regulation 3 of The Practice Directions.

9. The Learned Trial Magistrate erred in law by awarding general damages to the Respondent that were unjustified and excessive.

To the appellants' counsel, the suit for the respondent was based on vacant land, which he had never been in possession of throughout his testimony, and the respondent did not state that he suffered mental stress or inconvenience, which would have been the basis of an award of general damages, he also never testified that he was obstructed from the use of his land. Therefore, counsel for the appellants contends that an award of general damages to the respondent was unfounded, illegal and excessive. In response, the respondent's counsel opined that the respondent's case was that of trespass and he prayed for general damages under the prayers.

I have perused the plaint and noted that the respondent indicated that he had 25 suffered loss and damage and was under threat of losing his land.


Furthermore, in the prayers, the respondent prayed for general damages for $\mathsf{S}$ trespass.

I have perused the judgement of the trial magistrate, and on page 7 under Issue 4 paragraph (d), the trial magistrate awarded general damages of UGX 5,000,000 to the respondent. I note that she did not provide any reasons for the same.

However, in the case of **Byabalema & 2 Others vs UTC (1975) Ltd** this court being an $10$ appellate court was cautioned thus;

"It is now a well settled principle that an appellate court may only interfere with an award of damages when it is inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the Judge proceeded on the wrong principle or that he misapprehended the evidence in some material respect and so arrived at a figure which was inordinately high or low."

According to Garner (2009) Black's Law Dictionary (9<sup>th</sup> Ed.) on page 446, general damages are damages that the law presumes follow from the type of wrong complained of; 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.

Also according to Civil Procedure and Practice in Uganda (2<sup>nd</sup> ed.) LawAfrica by Ssekaana, M., & SN. Ssekaana, S. (2019), paragraph 15.6.19 on page 171, general damages 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: Also *Ouma Vs. Nairobi City Council [1976] KLR 297.*


- The general position of the law is thus that where a plaintiff claims that he or she $\mathsf{S}$ has suffered damage, for example an 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, that is the amount which he claims to be recoverable, irrespective of whether they are general or special damages. This operates fairly to inform a defendant of the case he has to - 10 meet and to assist him in computing, if he so desires, a payment in court. Ref: **Shah** vs Muhamed Hajji Abdalla [1962] EA 769.

The law on general damages is also 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 and 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,

20 experience and sheer intuition. The process is not arbitrary as it may seem.

In Uganda Commercial Bank versus Kigozi [2002]1 EA 35, guidance was given to courts on how to assess the quantum of damages thus;

"... the consideration should mainly be 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".

As for Atkin's Court Forms, Torts Vol 38(1) Paragraph 130, it is not even necessary $\mathsf{S}$ 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.

In the case of Imukot and Others v Arukori (Civil Appeal No 32 of 2021) 2023 UGHCCD 121, I had the occasion to observe as follows: 10

> "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."

Furthermore, in *Imukot and Others v Arukori* (supra), I also 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 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.

In in the instant case, evidence has been led to confirm that the appellants were once on the land and even cultivated some crops with the locus notes clearly

- showing that the appellants have been cultivating the suit land since 2015. With $\mathsf{S}$ these facts in mind, it is for certain that the respondent was inconvenienced as to the utility of his land for about seven (7) years up to the date of the judgement of the trial court though the respondent did not aver the particular damage he suffered apart from his pleading generic suffering of loss and the threat of losing his land. - Also I note that the trial magistrate did not indicate her reasons on how she arrived 10 at UGX 5,000,000 as that would have been helpful but though not compulsory.

The above being so and for the reasons I have given above, I would find that the amount of UGX 5,000,000 was excessive and would reduce it to a rational amount of UGX 1,000,000.

In the circumstances, this ground is found to have merit and consequently the award 15 general damages of UGX 5,000,000 by the trail lower court is found to excessive and is thus reduced to UGX 1,000,000. This ground succeeds.

## 10. The decision of the Learned Trial Magistrate occasioned a miscarriage of *justice on the appellants.*

From the reading of this ground, it is evident to me that it was not properly 20 formulated and it is thus offensive to Order 43 Rule 1(2) of the Civil Procedure Rules, which stipulates that:

The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative, and the grounds shall be numbered consecutively.

Several decisions have been made in respect of such grounds. The failing to $\mathsf{S}$ formulate, number consecutively, and concisely present the grounds of objection to a decree under distinct heads without any argument or narrative can have several consequences such as the rejection by the appellate court of the ground memorandum of appeal or return it for amendment with the latter delaying the appeal process and may entail additional legal costs. 10

But where such amendment is not done in time and pleadings and submissions are closed and completed, then such improperly formulated ground can only be rejected for not being clearly stated and numbered. See: Migadde and Ors v Nakibuule and Ors (Civil Appeal No. 53 of 2019, for being confused and inefficient. see: $ln$ The High Court of the United **Republic** $of$ Tanzania. (https://tanzlii.org/akn/tz/judgment/tzhc/2024/6106/eng@2024-06-19/), not adhering to the procedural requirements. See: Migadde and Ors v Nakibuule and Ors (Civil Appeal No. 53 of 2019) [2021] UGHCLD 4 (22 January 2021)

This is the case with this ground as it fails in all the above and thus cannot succeed 20 as it fails.

Having determined grounds one, two and three in the negative and only ground four in the affirmative, on the whole, I would find that no miscarriage of justice was occasioned onto the appellant and as such

11. Conclusion:

From the findings above, this appeal fails in whole but succeeds partly only in 25 relations to the excessive award of general damages which is reduced as above.

## 12. Orders: $\mathsf{S}$

This instant appeal, therefore, fails on all grounds of 1, 2, 3, and 5 but partly on Ground 4 with the following orders are issued.

Orders;

- a) This instant appeal, therefore, succeeds in part on ground 4 but fails on grounds 1, 2, 3 and 5. $\frac{1}{2}$ - b) The judgment and orders of the lower trial court are upheld save for the general damages which is REDUCED from UGX 5,000,000, which has been found to be too excessive in the circumstances, to UGX 1,000,000. - c) Given the nature of this appeal and the parties involved as they both seem to have known each other for such a long time and for the reason not to exacerbate any further conflict between the two parties, I would order that each party should bear own costs; both in this Honourable Court and in the lower trial court.

I so order.

Hon. Justice Dr Henry Peter Adonyo

Judge 16<sup>th</sup> August 2024

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