Okech v Turihohabwe (Civil Appeal 53 of 2020) [2024] UGHCCD 181 (15 October 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (CIVIL DIVISION) CIVIL APPEAL NO. 053 OF 2020 (ARISING ROM NAKAWA CIVIL SUIT NO. 036 OF 2013)**

**JOHN BAPTIST OKECH ::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT VERSUS**

**TURIHOHABWE DICK ::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

# **BEFORE: HON. JUSTICE BONIFACE WAMALA**

### **JUDGMENT**

## **Introduction**

[1] The appellant being dissatisfied with the judgment and decree of **His Worship Karemani Jamson K.**, then Chief Magistrate, delivered on 9th July 2018 at Nakawa Chief Magistrates Court, brought this appeal seeking orders that the appeal be allowed, the judgement and decree of the Chief Magistrates Court of Nakawa in Civil Suit No. 036 of 2013 be reversed and the costs in this court and of the lower court be awarded to the appellant.

# **Background to the Appeal**

[2] The respondent instituted Civil Suit No. 0036 of 2013 against the appellant in the Chief Magistrates Court seeking an injunction to restrain trespass and nuisance, full restitution for loss of his property, special damages, general damages and costs of the suit. According to the pleadings, the claim arose out of the defendant's alleged conduct of blocking a water channel, which caused flood water to overflow into the plaintiff's premises and damaged the plaintiff's property. The appellant/defendant filed a written statement of defence denying the allegations brought against him. The trial court entered judgment in favour of the respondent/plaintiff and ordered the appellant/defendant to pay a sum of UGX 44,036,500/= as special damages, UGX 5,000,000/= as general damages and costs. Being aggrieved with the said orders, the appellant filed the present appeal.

## **Representation and Hearing**

[3] At the hearing, the appellant was represented by **Mr. Justin Gumtwero** of M/s Gumtwero & Co. Advocates while the respondent was represented by **Ms. Faridah Ikyimana** and **Mr. Ronald Ewalu** from M/s Geoffrey Nangumya & Co. Advocates. It was agreed that the hearing proceeds by way of written submissions which were duly filed by both counsel and have been considered in the determination of matter before court.

[4] In their written submissions, Counsel for the respondent raised an objection regarding the competency of the appeal, to the effect that **the memorandum of appeal in Civil Appeal No. 053 of 2020 was filed out time rendering it illegal and a nullity**. I will first deal with this point of objection.

## **Submissions by Counsel for the Respondent**

[5] Counsel for the respondent cited Section 79(1) of the Civil Procedure Act and the case of *Luzinda George v Edward Wasswa HCCA No. 39 of 2009* for the submission that an appeal from the magistrates' court shall be lodged in the High Court within 30 days from the date of the decree or order. Counsel submitted that in this case, the appellant filed the memorandum of appeal on 28th August 2020 when the judgement was delivered on 9th July 2018 which is approximately two years after the date of judgment. Counsel submitted that the appellant was required to first obtain leave of the court extending the time within which to appeal but did not seek the same hence filing an illegal appeal out of time.

[6] Counsel further submitted that the appeal was also improperly instituted by a notice of appeal contrary to Order 43 rule 1 which requires that an appeal to the High Court shall be instituted by way of a memorandum of appeal. Counsel argued that the allegation by the appellant's counsel of a mix up of appeal numbers were submissions from the bar without proof and the blame should not be visited on the court. Counsel further argued that if at all the said appeal ever existed, the appellant would have withdrawn the one filed in 2020 rather than the earlier one filed in 2018; and the amendment would have been made to the memorandum of 2018 rather than the one of 2020. Counsel prayed that the appeal be struck off record for being incompetent, with costs to the respondent.

### **Submissions by Counsel for the Appellant**

[7] In response, it was submitted that the appellant lodged a memorandum of appeal on 17th July 2018, eight days from the date of judgment and the memorandum of appeal was given file No. 69 of 2018. Counsel stated that the appellant's then advocates also requested for the certified typed record of proceedings and both the letter and the memorandum of appeal were served upon the respondent's counsel on 18th July 2018. Counsel stated that the trial court availed the certified record of proceedings on 4th August 2020 and the appellant filed an index of appeal on 28th August 2020. Counsel argued that if one was to take 4th August 2020 when the certified proceedings from the lower court were availed as the point when the time started running, the appellant would still be within time by the 28th day of August, 2020 when the index was lodged; which was 24 days and is less than the stipulated 30 days under Order 43 rule 1 CPR.

[8] Counsel further submitted that the mistake to give the appellant's appeal a different file number from 69 of 2018 to 53 of 2020 was completely a mistake of the court and the same cannot be visited on the appellant. Counsel argued that the position cannot change merely because the appellant was directed by the Court to withdraw the earlier memorandum of appeal without time to consider legal counsel. Counsel submitted that at all times, the appellant's appeal was competent and the inadvertence that led to a new file number being introduced was instigated by the court's own failure to maintain one common case file number for an already existing appeal. Counsel concluded that if the Court finds that the wrong numbering of the appeal was occasioned by the appellant, it is still open to court to exercise its wide discretion to admit the appeal.

#### **Determination by the Court**

[9] Section 79(1) of the Civil Procedure Act Cap 282 provides that an appeal shall be filed within 30 days from the date of the decree or order of court appealed against; but the appellate court may for good cause admit an appeal though the period of limitation prescribed by this section has elapsed. Section 79(2) of the Act provides that in computing the above stated period of limitation, the period taken by the court in making a copy of the decree, order and proceedings on which the appeal is founded shall be excluded.

[10] In the present appeal, it is not in dispute that a notice of appeal and a request for a certified record of the trial court were filed on 17th July 2018. This was 08 days from the date of the judgment that was delivered on 9th July 2018. The provision under Section 79(2) of the CPA, set out above is clear. Once a party intending to appeal requests for a record of proceedings, the time stops running until the date when the record is availed. In this case, the facts adduced by the appellant are to the effect that upon request of the copy of proceedings on 17th July 2018, the trial court availed the certified record of proceedings on 4th August 2020. These facts have not been controverted through any evidence to the contrary. It is further shown by the appellant that upon receipt of the record, he filed a memorandum of appeal enclosed in an index of appeal on 28th August 2020; which was entered as the day Civil Appeal No. 053 of 2020 was filed. From 4th August 2020 to 28th August 2020 is a period of 24 days. Eight days had elapsed by the time the appellant requested for the record of proceedings. When the 08 days are added, this brings the period to 32 days. The filing of the appeal was, therefore, late by 02 days.

[11] It should be reckoned, however, that under Section 79(1) of the CPA, the appellate court may for good cause admit an appeal though the period of limitation prescribed by this section has elapsed. On the case before me, it has been shown by the appellant that he had before filed a memorandum of appeal on 17th July 2018 which was registered as Civil Appeal No. 69 of 2018. The appellant claimed that out of a mix up within the court, when the appellant filed another memorandum of appeal together with the index of the appeal, a new number of Civil Appeal No. 053 of 2020 was allocated. It was argued for the appellant that the mix up was occasioned by the court and ought not be visited on to the appellant. I have not found anything countering these facts relied upon by the appellant. I am thus inclined to believe the appellant. I agree that the mix up in the allocation of case numbers and management of the appeal files cannot be visited onto the appellant. I also agree that such circumstances constitute good cause upon which the Court can rely to admit the appeal that was filed two days outside the statutory 30 days. The Court is given the power to enlarge such time by the very provision of the Act of Parliament that fixed the time limitation. I therefore exercise discretion to allow Civil Appeal No. 053 of 2020 as having been validly filed and as competent before the Court.

[12] The other point raised by Counsel for the respondent regarding the filing of the notice of appeal by the appellant is really academic. It would have had a substantive effect if the appellant had intended to rely on the said notice of appeal as evidence of filing the appeal. That way an argument could lay to the effect that an appeal to the High Court could only be filed by a memorandum and not a notice of appeal. However, where an appellant has commenced an appeal in the prescribed way, the mere fact that at the time of requesting for the record of appeal, the appellant accompanied the request with a notice of appeal, is simply a superfluous argument. I have also found as strange the argument by Counsel for the respondent that an intending appellant is not entitled to request for a record of proceedings before filing the appeal. In view of Section 79(2) of the CPA, that argument cannot hold any substance.

[13] In all, therefore, my finding is that the instant appeal is competent before the Court and I will proceed to consider its determination on the merits.

# **Grounds of Appeal**

[14] The appellant raised three (3) grounds of appeal in his amended Memorandum of Appeal, namely;

a) *The learned trial Magistrate erred in both law and fact when he held that the respondent/plaintiff proved negligence against the defendant.*

*b) The learned trial Magistrate erred in law and fact when he held that the appellant/defendant blocked the water channel which led to flooding causing destruction of the respondent/ plaintiff's properties.*

*c) The learned trial Magistrate erred in law when he awarded special damages without proof.*

### **Duty of the Court on Appeal**

[15] The duty of the first appellate court is to scrutinize and re-evaluate the evidence on record and come to its own conclusion and to a fair decision upon the evidence that was adduced in a lower court. See: *Section 80 of the Civil Procedure Act Cap 282*. This position has been restated in a number of decided cases including *Kifamunte Henry v Uganda SC CR. Appeal No.10 of 1997 [1998] UGSC 20 (15 May 1998); Fredrick Zabwe v Orient Bank Ltd CA No. 4 of 2006* and *Baguma Fred v Ug* SC Crim. App No. 7 of 2004. In the latter case, **Oder JSC** stated thus;

*"First, it is trite law that the duty of a first appellate court is to reconsider all material evidence that was before the trial court, and while making allowance for the fact that it has neither seen nor heard the witnesses, to* *come to its own conclusion on that evidence. Secondly, in so doing it must consider the evidence on any issue in its totality and not any piece in isolation. It is only through such re-evaluation that it can reach its own conclusion, as distinct from merely endorsing the conclusion of the trial court"*.

## **Consideration of the Grounds of Appeal**

[16] Both counsel argued grounds 1 and 2 together. I have adopted the same approach.

*Ground 1: The learned trial Magistrate erred in both law and fact when he held that the respondent/plaintiff proved negligence against the defendant; and Ground 2: The learned trial Magistrate erred in law and fact when he held that the appellant/defendant blocked the water channel which led to flooding causing destruction of the respondent/ plaintiff's properties.*

### **Submissions by Counsel for the Appellant**

[17] Counsel for the appellant faulted the trial magistrate for finding that the respondent had pleaded and proved negligence. Counsel argued that while the plaintiff (now respondent) and his witnesses alleged that the appellant had caused blockage of the water channel, none testified to having seen him do the blockage and that if they had seen him, the ordinary course for the plaintiff would be to confront the appellant at the time of trespass and would have invited the authorities. Counsel further stated that there was no indication from the locus report that the channel was blocked. Counsel stated that according to the sketch drawn during locus in quo, the channel and the water hole appears clear and the note of the trial magistrate did not show that there was any blockage and it is very surprising and erroneous that the learned trial magistrate arrived at the conclusion he arrived at. Counsel also submitted that the locus in quo was done without adherence to the rules of visiting locus in quo. Counsel stated that the record shows that there was no plaintiff, his witnesses and the lawyer except the appellant and his lawyer. Counsel argued that the court turned itself into the plaintiff's witness with the effect that the resultant decision was unjust and prejudicial to the appellant.

### **Submissions by Counsel for the Respondent**

[18] It was submitted by Counsel for the respondent that the respondent pleaded and proved negligence against the appellant. Counsel pointed out that at page 77 of the Record of Appeal, the respondent pleaded negligence, to which the appellant made an evasive denial and put up a defence that the overflow was an act of God. The appellant did not refute the averments by the respondent and witnesses. Counsel stated that the court record shows destruction of the fence, the boys' quarters, the car and household properties; all caused by the overflow of the water from the appellant. Counsel further stated that the respondent, witnesses and the locus visit shows that the water channel was blocked by the appellant which caused the overflow of water resulting into destruction of the respondent's property. Counsel disputed the appellant's claims that none of the witnesses testified to having seen the appellant block the channel and argued that the ingredients of negligence that needed to be proved were; the duty of care, breach of the duty of care and the loss suffered by the plaintiff; which elements were proved by the respondent and not rebutted by the appellant. Counsel concluded that the respondent pleaded and proved negligence against the appellant and prayed that the appeal be dismissed with costs.

[19] Regarding the contention that the locus was not properly conducted by the trial magistrate, Counsel argued that the record on page 17 and 18 indicates that the appellant and his counsel were present when the court visited locus on 12th June 2018 and the appellant was examined in chief. Counsel stated that the sketch indicates the hole where water used to pass which was allegedly blocked by the appellant. Counsel further stated that the blockage had happened in 2013 and the locus visit was done in 2018 and no reasonable man in order to mitigate the damage could leave a channel blocked from 2013 to 2018. Counsel concluded that the locus in quo was properly conducted by the trial magistrate and court considered the findings at locus while delivering its judgement. Counsel prayed that the two grounds should fail and the court should uphold the judgment of the lower court.

## **Determination by the Court**

[20] The appellant faulted the trial magistrate for finding that the respondent had proved negligence against him yet none of the witnesses had seen the appellant blocking the channel and the locus visit report did not show any blockage. Negligence as a tort has been defined as the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. See: *Blyth v Birmingham water works (1856) II EX 78.* To prove the tort of negligence, the plaintiff must establish that there was a legal duty of care owed to him or her; that the duty of care was breached by the named defendant; and that damage or injury was suffered by the plaintiff. See: *Donoghue v Stevenson (1932) UKHL 100.* In this case, the trial magistrate believed that the appellant had blocked the water channel, which act amounted to breach of the duty of care owed to the respondent, the latter had suffered loss and damage and the appellant was therefore liable in negligence.

[21] From the record, there was no serious contest as to whether some property belonging to the respondent were destroyed. The plaintiff (now respondent) led evidence of three witnesses including himself; who narrated the occurrence to the court and their evidence was tested in cross examination. The plaintiff also adduced photographs showing the destroyed items which were admitted in evidence as exhibits. It was stated by the plaintiff's witnesses that the water channel had been in place for a while and was letting flood water to flow well every time it rained. According to the evidence, it was because of the blockage of the channel that the flood water was inhibited from flowing, leading to a flood that pulled down the wall fence, which hit the motor vehicle that was parked in the plaintiff's compound and the boys' quarter house. A number of household properties were also affected as shown in the plaintiff's evidence.

[22] The trial magistrate, after hearing the evidence, visited the locus in quo. In his judgment, he believed the evidence concerning the destruction of the property and the fact that the defendant (now appellant) was responsible for the occurrence. It was argued for the appellant that since none of the witnesses testified to seeing the defendant blocking the channel, the learned trial magistrate erred in accepting the plaintiff's evidence to that effect. I am unable to agree with this argument by Counsel for the appellant. Direct evidence is not the only form of evidence that may be relied upon by the court before drawing particular conclusions on matters of fact. Circumstantial evidence has been said to be reliable; at times being able to prove a set of facts with the accuracy of mathematics. See: *R v Taylor, Weaver and Danovanu (1928) Cr. App. R20* cited in *Tumuhairwe v Uganda [1967] EA 328*.

[23] In the present case, the evidence by the three plaintiff's witnesses properly describes the scene of the occurrence. It describes the kind of terrain, which necessitated the construction of the channel. It further shows that before this occurrence, the channel was properly serving the neighbors to the plaintiff including the defendant and PW2 (Sam Lapote). It was stated by the plaintiff in his testimony as PW1 that a disagreement arose between him and the defendant. They had an argument before the blocking of the channel. PW2 described the manner in which the channel was blocked. In paragraph 6 of his witness statement, PW2 stated that "later, the defendant blocked the same water channel by inserting iron bar poured concrete covered with iron sheets which affected the water flow …". PW3 (Nalweyiso Agnes) was the area L. C1 Chairperson who also testified to the fact that the channel was blocked by the defendant.

[24] The above evidence was not controverted, either through cross examination or by production of contrary evidence. I find that it is capable of proving on a balance of probabilities that the water channel in issue was blocked by the defendant and it occasioned the damage alleged by the plaintiff. It is obvious that without the blockage to the channel, rain water would not have flooded leading to the damage that occurred. Since the defendant was a neighbor and knew the purpose served by the channel, the act of blocking it amounted to breach of a duty of care and occasioned loss and damage to the plaintiff. The said conduct amounted to a tort of negligence. Negligence was pleaded in the plaint and particulars thereof set out. I do not find any reason to fault the learned trial magistrate for having arrived at the conclusion that he did.

[25] Counsel for the appellant further challenged the trial magistrate's reliance on the proceedings and report of the visit to the locus in quo, stating that the locus proceedings were improperly conducted. The particulars set out by the appellant's counsel were that the proceedings were conducted in absence of the respondent/plaintiff and his witnesses; and secondly, that the report did not indicate the blockage of the channel. In law, locus in quo proceedings are provided for under Order 18 rule 14 of the CPR which provides that the court may at any stage of a suit inspect any property or thing concerning which any question may arise. The purpose of a locus visit is to check on the evidence already given by the witnesses in court, and not to fill gaps in their evidence for them. See: *Fernandes v Noroniha [1969] EA 506; Yeseri Waibi v Edisa Byandala [1982] HCB 28* and *Nsibambi v Nankya [1980] HCB 81.*

[26] This area of the law has also been subject of regulation under the provisions of **Practice Direction No. 1 of 2007 on the Issue of Orders Relating to Registered Land which affect or impact on the Tenants by Occupancy**. Under direction No. 3 thereof, it is provided as follows;

*"During the hearing of land disputes, the court should take interest in visiting the locus in quo, and while there;*

- *(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"*.

[27] Regarding the contention based on the ex parte nature of the locus proceedings, neither the provisions of the law cited above nor the positions set out in available court decisions bar a court from conducting an ex parte locus proceeding; provided the parties concerned have been notified and the court is satisfied that they chose not to attend. Indeed, the most predominant rule for conduct of locus in quo proceedings is that the same must be conducted as a court proceeding. In court proceedings, where a party that was served with notice does not attend, the court is at liberty to proceed ex parte. The same rule applies to locus in quo proceedings.

[28] What I find even more strange about this argument by the appellant herein is that the party that was absent is not the one that is complaining. Rather, it is the party that attended with their counsel. I have not seen any indication on record that the appellant or his counsel contested the conduct of the locus in quo ex parte. Indeed, at page 19 of the record of proceedings, it was the defence counsel that drew it to the court's attention that the plaintiff was absent despite being aware of the day's locus visit. The court ordered the "matter to proceed in absence of the plaintiff who has absented himself". The court then reminded the defendant (DW1) that he was on oath and he was examined. The court also drew a sketch plan. From the above circumstances, I do not see any procedural flaw on the part of the trial magistrate in the conduct of the locus proceedings. Similarly, I do not see how the defendant (now appellant) was prejudiced by the absence of the plaintiff and his advocate. If such a possibility existed, it was the appellant's duty to point it out to the court during the proceedings. Now that he did not, the appellant is estopped from raising the matter on appeal. I have, therefore, found no merit in this contention raised by Counsel for the appellant.

[29] Regarding the fact that the report of the locus visit did not indicate the area of the channel that was blocked, I note that there is no evidence on record indicating that the channel was still blocked at the time of the locus visit. Indeed, I would have been surprised if such evidence existed. This is because, the occurrence took place in 2013 and the court visited the locus in quo in 2018. The evidence on record is that when the channel was blocked, water flooded and destroyed property. Even without evidence regarding that specific aspect, I do not see how the channel would have remained blocked five years later. I do not see this as one of the considerations that the trial magistrate ought to have taken into account at the locus in quo visit. I have seen an indication by the trial magistrate on the sketch plan of "the hole where the water used to pass which was allegedly blocked by the defendant". This, in my view, makes sense since the blockage could not be expected to remain there for five years yet on the single occasion it was blocked, a catastrophe was proved to have occurred. I have also found this argument by the appellant to be without merit.

[30] In all, therefore, on grounds 1 and 2 of the appeal, I find that the complaints raised against the findings of the learned trial magistrate are not made out. On evidence, the respondent proved the allegations of negligence against the appellant and the resultant loss and damage. The trial magistrate was, therefore, right in his findings and conclusion on the matter. Grounds 1 and 2 of appeal are therefore not made out and they fail.

*Ground 3: The learned trial Magistrate erred in law when he awarded special damages without proof.*

## **Submissions by Counsel for the Appellant**

[31] Counsel for the Appellant cited the case of *Stanbic Bank (u) Ltd v Hajj Yahaya Sekalega, T/A Sekalega Enterprises, Civil Suit No.185 of 2009* to the effect that the court will only a ward a prayer for special damages if the same is strictly pleaded and proved. Counsel referred the court to page 8, lines 7-11 of the record of appeal where the respondent referred to quotations for repair of a motor vehicle, plumbing and construction of the entire house and argued that the same were intended expenditures and related to building the entire house. Counsel also submitted that the receipt for repair of the motor vehicle was in respect of M/V UAG 211S and not M/V UAH 211S as pleaded in the particulars of special damages. Counsel stated that the respondent did not provide any single receipt for the damaged house hold property that was valued at Ugx 2,287,500/=.

[32] Counsel further submitted that the bills of quantities adduced in evidence for construction of a perimeter wall, repair of kitchen and boys' quarters have no date and were not signed and the author was not called to testify; hence they could not be relied on as proof of special damages. Counsel argued that the items described by the plaintiff as affected by the floods were the perimeter wall, car and house hold properties. Counsel stated that the main house, kitchen and boys quarter were not mentioned as properties damaged by the flood when narrating what was damaged in his cause of action. Counsel also submitted that the findings at locus pointed to a small section of the wall which was affected by the flood and not the entire perimeter wall. Counsel also argued that the area damaged by the floods did not require any plumbing work. Counsel concluded that the learned trial magistrate failed to apply the proper standard of proof with the result that he held the applicant in negligence without proper proof.

## **Submissions by Counsel for the Respondent**

[33] In reply, it was submitted by Counsel for the respondent that the receipts for repair of the motor vehicle, renovation of the kitchen and boys' quarters and purchase of house hold properties were presented and relied on in the award of damages. Counsel stated that the said receipts were never objected to by the appellant during the hearing and submissions in the lower Court. Counsel submitted that the mistake by counsel typing UAH instead of UAG cannot be visited on the litigant and that the same was never put to the attention of the litigant and the court to have it clarified.

## **Determination by the Court**

[34] The position of the law is that special damages must be specifically pleaded and strictly proved in evidence. See: *Uganda Telecom Ltd v Tanzanite Corporation [2005] 2 EA at P.341*. Proof of special damages does not always have to come by way of documentary evidence. However, to prove special damages through oral evidence, the evidence adduced by the party has to be cogent. See: *Gapco (U) Ltd v A. S Transporters Ltd [ 2009] 1 HCB*. In *John Eletu v Uganda Air Lines Corporation [1984] HCB 44*, the court reiterated the position that production of receipts or documentary evidence is not the only way or method of proof of special damages; cogent oral evidence may suffice.

[35] On the case before me, the aspects raised in the appellant's submissions while challenging the evidence adduced by the respondent in proof of special damages required an explanation by the respondent. This was only possible if the questions were raised during the trial. It was incumbent upon the defendant and his counsel to raise any pertinent questions concerning the documents adduced during either admission of the said documents or in cross examination. The record indicates that the documents in issue were admitted in evidence without any contest raised by the defence. During cross examination, no such questions were raised. Raising such questions during submissions, and more so at the appellate level, is not acceptable since the respondent would not have any opportunity to make any explanation. Any such explanation would be evidence from the bar which is unacceptable. As such, the situation left the court with the duty to evaluate and establish whether the evidence adduced through such documents was credible, cogent or possessed of the probative value claimed by the plaintiff.

[36] In the trial court, the magistrate found the evidence credible and cogent and relied on it. The court found that the expenses claimed by the plaintiff were proved upon the documents that were adduced in evidence. The court enumerated the proven expenses which the trial magistrate allowed and disallowed that which was not proved. I have not found any reason to depart from his finding. The aspects raised by the appellant are not capable of impeaching the said evidence in absence of contrary evidence. I find that the evidence adduced by the respondent was cogent enough to prove the special damages. I have found no justification for interfering with the award of special damages that was made by the trial court. Ground 3 of the appeal also fails.

## **Decision of the Court**

[37] All the grounds of appeal having failed, the appeal is accordingly dismissed. The judgement and decree of the lower court is upheld and shall be enforced. The costs of the appeal and of the proceedings in the lower court shall be paid by the appellant.

It is so ordered.

*Dated, signed and delivered by email this 15th day of October, 2024.*

**Boniface Wamala JUDGE**