Olowo v J. V. Strabag and Stirling (HCT-04-CV-CS-0038-2002) [2002] UGHC 135 (11 November 2002)

Full Case Text

## **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE**

## **IICT-04-CV-CS-0038-2002**

**LYDIA OLOWO PLAINTIFF**

**VERSUS**

**L J. V. STRABAG**

**0**

**2. STIRLING DEFENDANTS**

## **BEFORE THE HON. LADY JUSTICE FAITH MWONDHA**

## **JUDGMENT 10**

The Plaintiffthrough her Counsel brought this action against the Defendants severally and jointly for recovery of 32,906,250= being damages suffered by the Plaintiff as a result of their breach of the license granted to them on 14/5/2001 and for other consequential reliefs.

The facts surrounding the case were that on the 14/5/2001 the plaintiff granted to the Defendants a license for access to their borrow source pit of kilometer 17 plus 400 LHSs through her land at an agreed sum of 200,000= The access document was attached to the plaint and same was tendered in evidence at the trial. Both parties signed. That contrary to the license, the Defendants excavated the land and area measuring 1.5 meters deep by 130 ' meters long and 10 meters wide, the total area being 1950 cubic meters.

**1**

**20**

That as a result of the breach of the license earlier granted the land had been rendered less fertile and non productive.

At the Scheduling conference the issues were agreed upon as follows:-

- (1) whether the Defendants exceeded the license granted to them. - (2) Whether the Plaintiff was entitled to any remedy.

In regard to the first issue, PW1 the mother of the Plaintiff who was the one looking after the land of her daughter, testified that she allowed the Defendants to access the site they were getting the murram from. That the Defendants dug the area and later filled it with murram and as a result even if she cultivates the land in issue its no longer productive. That she just allowed the Defendants to pass through her land to another person's site. the Chit That she was paid Shs. $200,000=$ for allowing them to access the site they were getting the murram from. That the permission to access the site was made in writing and she signed it. That it was read to her after she had signed. That one Ogola was present. She said that after they had dug the land, she never saw them again. She decided to instruct her Lawyers to sue the Defendants for compensation for the damage caused on her land as its no longer productive. That she showed them where they were supposed to access their site from her land which she keeps for her daughter.

That she just allowed them to pass in the land but not to dig or make a road.

PW2 testified that she knew the Plaintiff as a cousin and PW1 was the Plaintiff's mother. That the Defendant Company representative approached PW1 for purposes of allowing them access to where they were getting their murram from. That PWI gave them permission to pass through. That the

$\overline{2}$

agreement was written. That PW1 signed after this witness had confirmecf that it was right. That the permission sought for was for access. That she was given 200,000= for the permission. That the Defendants' representative inspected where they were going to pass. That instead of accessing through the suit land a road was dug and yet other lorries used to pass there without a road dug. That after digging the soil therein became infertile that no crops could grow there.

That the Defendants got soil from else where and filled the road they had dug. That they instructed their Lawyer, and the Surveyor was contacted to access the damage done. That the land was being used to grow crops like potatoes, cassava, millet, groundnuts which can no longer grow there.

*G?* The Plaintiff relied on the permission document which was exhibited and 7,-p marked Exp.l which was categorically providing for permission of access to *■=P\* the Defendants borrow source pit at Km 17 + 400 LHS and was paying Shs. 200,000= for that.

The Defendants' witness DW1 said that he knew PW1 because she signed for the Shs. 200,000= for compensation of access road to the Borrow pit from Tororo-Bugiri Road. That she signed the payment voucher on which he relied and was tendered and marked ExD.l. I noted that the payment voucher was providing for access road compensation which was different from what had been permitted.

**I**

*&*

**I,**

DW2 testified that PW1 entered an agreement with them, for an access road to the Borrow pit on Bugiri-Busia Malaba Road. He was one of the

**3**

signatories. He said that, while going to the Borrow pit they were bulk dozing and digging the soil heaping it on the sides so that they got the access road.

to Court and found that He said that he went to the suit land before he came the vegetation had grown there.

That there was murrain in the whole area even before they started getting murrain from the Borrow pit. That there were no crops growing in the area but in the neighbourhood there were some short maize and grass and not trees. That the vegetation ofthe area is mainly grassland.

The payment voucher PW1 signed was exhibited and marked EXD. 1 but it was reading that the compensation was for access road compensation to the Borrow pit which was different from the agreement or permission paper. The two wordings were not synonymous i.e access to the Borrow Pit and access road to the Borrow Pit. This obviously establish breach of the terms of the permission/agreement and therefore on this fact alone issue number one is answered in affirmative.

I concur with Learned Counsels written submissions of the Plaintiff at page 5 and 6 to the effect that, DW2 in his oral testimony to Court varied the clear terms ofthe document signed by him and PW1. I am also in agreement with the case cited by him i.e *Philippson -vs- Imperial Airways (1938) ALL. E. R Reprint 761* as held by Lord Thankerton to the effect that

**f]**

**r**

**I**

"the Respondents who prepared the contract must take the consequences of their failure to make clear the limitation which they claim and that the appeal succeeds on this point."

In the instant case the Limitation was to have access to the Borrow pit not" access road as the testimony of DW2 and DWl establish contrary to what was in the agreement.

PWl testified and her evidence was not challenged that she was keeping the land in question for her daughter the Plaintiff. Her signing the agreement was not also contested and or challenged. With due consideration to Learned Counsel for the Defendants in his submissions in regard to the Legal meaning of access as defined in Black's Law Dictionary 16th Edition page 14 and the cases cited in the written submission, it was clear from the evidence that the Defendant company deliberately avoided to use access road in the agreement which both PWl and DW2 signed to avoid expenses which would result.

In other words they were not sincere/honest that is why in the agreement signed by both parties it was only the word "access to the Borrow Pit" used and the payment voucher reflected access road.

**i**

convince a reasonable No explanation whether legal or otherwise can tribunal directing its mind on the law and evidence can find that there was no breach. It is my well considered view that the legal definitions and the cited cases would be applicable if there was no deliberate intention to cheat as it appears apparent from the evidence adduced and is on record especially Exp. I.

The definitions are distinguishable from how the terms were used. The Defendant Company by the actions of DW2 who made the permission docuinent/agreement knew that if the words access road was to be used, the

**5**

money to be paid was certainly going to be higher than the Shs.200,000^ agreed on. It would be unjust for this Court to condone such acts of the Defendants because who ever comes to equity must come with clean hands.

It was clear from the agreement signed that the word license meant permission and or agreement to have the Defendants' vehicles to pass through the plaintiff's land to the Borrow Pit. So as I as earlier said, the Defendant cannot be heard of hiding in legal definitions.

involved in the DW2 told Court that he didn't explain to PWl what was term "access" and yet on the payment voucher it was put very clearly, why didn't he explain to her?

**"I**

**A c**

**n**

As I said earlier in this judgment issue number one is answered in the affirmative because of the unchallenged evidence of PWl was that she was keeping the land in question for her daughter the Plaintiff. So she signed the agreement on that strength so the Plaintiff proved that the agreement was breached. Also the evidence of PW2 strengthened the Plaintiffs case.

In regard to the second issue i.e whether, the Plaintiff is entitled to any remedies.

It was the |The fact that the first issue was resolved in the affirmative obviously the Plaintiff was entitled to some damages. The question to be determined is the quantum of damages. This hinges so much on the evidence how far the Plaintiff established the suffering because of the breach. Plaintiff's case that due to the digging of the road in her land, the land was rendered unproductive since she can't use it for agricultural purposes as she

**6** used to. I had the opportunity of visiting the locus in quo and I observed thaC some millet had been grown on the sides but had been harvested and there was slight difference of vegetation in the surroundings where the access road was dug. The explanation given was that the fertile land had been removed and that caused the difference.

All in all the area affected was 30 meters by 6 meters. The murram was said to have been spread where the access road had been dug in March 2002 while the transporting ofmurram through the access road done in November 2001. The Court's general observation was that the vegetation in the unaffected area and where the Defendants dug the access road had slight difference. There is dry land generally and no big trees. Besides it appeared that there had been no attempt by the Plaintiff to cultivate and or grow any crops in the Suit land. There was some vegetation growing which was not Cui, so different from where the soil was not dug.

It was therefore difficult to conclude that nothing can be grown. PW4 had testified earlier that he was practicing as a professional Engineer and that he went to the suit land. He said that the area excavated was 1950 cubic meters. He said that there was a dry crater in the land and a hole. That the land had been filled in with mun'am which was not suitable for agriculture. He said that if the owner wanted to make the soil productive it would cost her 13,650,000= and that the estimated dug soil was 12,675,000= if she wanted to sell it. That if the owner was to use it the percentage would be 25% of the two costs which would come to 6,581,250=. He had told Court that the land was useless to the owner.

**10**

**20**

**I**

Having said that and after consideration of the evidence and taking intcf account the Court's observation at the locus in quo, it could not be possible that the account of money estimated by PW4 to replenish the land before it can be productive is real or accurate. It was very clear that the land in the area not only where the suit land is situated is dry, even the crops which

grow there show that the land is not that fertile.

**a**

- 88 -

Secondly, there was no proof that PW1 was using that particular land for commercial purposes, for the benefit of her daughter the Plaintiff. That she (the Plaintiff) lost a reasonable income, as she can no longer grow on commercial basis. It was not even shown and or proved that she (PW1) used to sell the surplus of her crops for the benefit of her daughter the Plaintiff, to entitle the Plaintiff who never testified to be awarded damages for loss of income.

**10**

**20**

I find the case cited by Learned Counsel for the Plaintiff *Matthias Kamya Kigoye -vs- Attorney General (1985) HCB page 75* not applicable to the facts ofthis case.

The fact that the figure quoted was not challenged doesn't confer an automatic right to the plaintiff to be awarded. I wonder how competent PW4 is when he said that he was still practicing as a professional Engineer. I-Ie didn't state his qualifications or when he acquired them and where, to prove his competence to make a valuation report. Obviously the report indicates from the 1st page that he is involved in a partnership of Engineers and Building Consultants but this is not enough. From this he can't claim to

be an Expert Agriculture or Soil Analysis to estimate the damage caused orC the land to show that the Plaintiffsuffered that much loss.

And in any case the report ought to have been supported by evidence to cause the extent of damage to have been proved also on a balance of probability. It was not the case in the instant case.

Before I take leave ofthis matter, I must say that its true there was breach of the terms agreed upon by the parties and there was some damage which the Plaintiff definitely suffered but was very minor almost to having no consequence at all.

The general rule is that the measure of damage is that sum of money which will put the party who has been injured or suffered in the same position as he would have been in if he had not sustained the wrong for which he/she is now getting compensation or reparation.

**3** In respect of contract, it refers to putting him into the position he would have been in had the Contract not been broken (See McGregor on Damage I3lh Ed page 10). It was stated clearly by Parke B in *Robinson -vs- Harman (1948) Exch. 850, 855* and also consistently cited with approval in *Czarnikov -vs-Konfos (1969) 1 A. C 350*

General damages are implied in every contract, it must be averred in general terms that such damages has been suffered. They may be substantial or small according to the circumstances and where no real damage has been suffered, trifling amount. See *Matiya Byabalema & Others -vs- U. T. C SCU Civil Appeal No. 10/93* where Odoki JSC as he then was had this to say;

**10**

"I am inclined to the view that the Courts ought to assess the amount^ of damages taking into account the current value of money in terms of what gods on services it can purchase at present. The most recent decision of the Court in Uganda provide the best guide and ensure conformity in the level of awards which should be maintained.

I respectively agree with the view. In the instant case it follows that the Plaintiff would have been entitled to a substantial amount ifthe land in issue was prima facie fertile land and if she had proved that she was even fertilizing it and using it for commercial agricultural ventures. The evidence available was to the contrary.

I am not persuaded by Learned Counsel for the Defendants' submissions that the contractual obligation was concluded without the Plaintiff raising any complaint as it had been established that PW1 and PW2 stayed 300 meters from the land in issue. That therefore the plaintiff was guilty of larches. Pie cited the case *o( Oitamong -vs- Olinga (1985) HCB 87* in which it was said among other things that larches was an equitable right which provides a defence for his client. That it meant that un reasonable delay in asserting or enforcing a right for equity aids the vigilant and not the indolent.

I am unable to agree with that argument because the proceedings don't reveal that there was unreasonable delay. The plaint would have been struck out as disclosing no cause of action ifthat was to be the case.

Secondly on perusal of the agreement Exp. 1 and the terms thereon, the argument of unreasonable delay would be misconceived since there is no

where in the Defendants' case where it was established that the Defendant^/ had obtained a clearance Certificate relieving the Contractor (Defendants) of any liabilities.

The doctrine of larches would have been of benefit if the six years as required by the Law on Limitation had expired in respect ofContracts.

I consequently find the other two cases cited i.e *Uganda Millers -vs-Batende Agencies (U) Ltd (1970) E. A 387 at page 39* as per Rusell **J** and *Akisoferi Ogola -vs- Emmanuel Othieno Akiika & Another* as per Ouma J as he then was not applicable to the facts ofthis case.

**10** I agree with Learned Counsel for the Defendants that the Plaintiff failed to prove the loss suffered.

I In the circumstances I will award just general damages for breach of contract to the tune of Shs. 3,000,000= with costs. I will not award interest since it was neither prayed for in the pleadings or at the time of trial but more t importantly I have no justification basing on the evidence.

## **JUDGE 11/11/2002 FAITH MWONDHA**

**11**

11/11/2002

*4*

Both parties absent Counsel for Plaintiff(sick)

Majanga for the Defendants present

**t** FAITH MWONDHA JUDGE 11/11/2002