Omongin v Otim (Civil Appeal 49 of 2022) [2024] UGHC 682 (17 July 2024)

The Republic of Uganda

In the High Court of Uganda Holden at Soroti

Civil Appeal No. 49 of 2022

(Arising from Civil Suit No. 19 of 2018)

Omongin Alex Moses :::::::::::::::::::::::::::::::::::

Versus

Otim Andrew Moses :::::::::::::::::::::::::::::::::::

Before: <u>Hon. Justice Dr Henry Peter Adonyo</u>

### **Judgement**

(An appeal against the judgment and orders of His Worship Owino Paul Abdonson, Magistrate Grade One of the Chief Magistrates' Court of Katakwi at Katakwi, delivered on 7<sup>th</sup> October 2022)

1. Introduction:

Otim Andrew Moses (the respondent) sued Omongin Alex Moses (the appellant) for recovery of 35 gardens/acres of land situated in Orukurukun Village, Okocho Parish, 20 Ongongoja Sub-County, Usuk County, Katakwi District (the suit land).

# 2. The plaintiff / now respondent's claim:

$\mathsf{S}$

The plaintiff pleaded that he inherited the suit land from his father, Modo Tito, who also inherited it from Okure Benasio, Modo Tito's father and grandfather of the plaintiff.

The plaintiff averred that his father, who died in 1991, was displaced from the suit land due to insecurity caused by the Karamojong cattle rustling, and he was not 10 buried on the suit land.

However, that the plaintiff's other relatives, Ibwangolet Margaret and Akello Grace, were buried on the suit land in 1974, 1977 and 1972, respectively. The plaintiff contended that the defendant (now appellant) trespassed on the suit land in 2017.

The defendant fell trees and cultivated the suit land without any colour of right. 15

# a) The defendant/ now appellant's claim:

The defendant denied the plaintiff's claim and contended that the suit land belonged to Acan Debora Norah, his mother, who was given the 35 acres of land in an agreement dated 5<sup>th</sup> February 1985 by her husband, the Late Samwiri Angiro alias Echogor, the father of the defendant, and that she mother inherited it upon the death of her husband in 1987.

The defendant asserted that the plaintiff's grandfather, Okure Venansio, was between 1969 and 1973 only allowed to settle on the suit land (2-3 acres) by the defendant's late father but Okure Venansio never owned any land.

The defendant contended that in 2000, his clan sat and marked the boundaries of 25 the suit land without any interference from the plaintiff. The defendant contended

further that at Orukurukun village, the Isuguro Ikuruka clan, his clan forms the $\mathsf{S}$ majority of people, with the *Egoriai* clan of the plaintiff having no member present there.

The parties in their filed Joint Scheduling Memorandum agreed on the following facts:

- a) The plaintiff is a descendant and grandson of the late Venasio Okure 10 otherwise known as Opatana, while the defendant is a descendant and grandson of the late Obwokori. - b) The plaintiff is a member of the Egoriai clan, while the defendant is a member of the Isuguro-Ikuruka clan. - c) The plaintiff's grandfather, the late Venasio Okure-Opatana, once lived and had a semi-permanent mabati house on the suit land. - d) The plaintiff's family left the suit land in 1973 and relocated to Obulengorok Village. - e) The defendant was charged with criminal trespass under Criminal Case No.301 of 2017, but the matter was dismissed on 21st September 2017, and the said charges were initiated by the plaintiff's brother, a one, Ogwel, out of contention for the ownership of the suit land. - f) The intensity of the Karamojong cattle rustling and raids heightened in 1979-1982 and again between 1987 and 1992, respectively.

At the lower court trial, two issues formed the basis of the trial magistrate's $\mathsf{S}$ determination of the dispute: who of the parties is the rightful owner of the suit land and the remedies available to the parties.

The trial Magistrate received evidence from the parties and visited the locus in quo on 27/06/2022.

Thus, the trial magistrate found in favour of the plaintiff (now respondent) whom he 10 declared as the rightful owner of the suit land, issued a permanent injunction restraining the defendant (now appellant), his agents or servants from further trespassing on the suit land, awarded the plaintiff (now respondent) general damages of UGX 10,000,000 for infringement of his right of ownership on the suit land and awarded costs to the plaintiff (respondent) to be paid by the defendant 15 (appellant). The defendant (now appellant) has appealed.

#### 3. Grounds of Appeal:

The appellant raised four grounds of appeal as follows:

- a. The Learned Trial Magistrate erred in law and fact when he declared the respondent the rightful owner of the suit land, thereby occasioning a miscarriage of justice. - b. The Learned Trial Magistrate erred in law and fact when he ignored the uncontradicted evidence of the appellant, thereby occasioning a miscarriage of justice. - c. The Learned Trail Magistrate erred in law and fact when he failed to properly evaluate evidence on record, thereby arriving at a wrong decision and causing a miscarriage of justice.

d. The Learned Trial Magistrate erred in law and fact when he awarded excessive general damages against the appellant without a basis, thereby occasioning a miscarriage of justice.

The appellant prayed that the appeal be allowed, the orders of the learned trial magistrate Grade One in Civil Suit No. 019 of 2018 be set aside, judgement be entered in favour of the appellant and costs be provided for in this court and the in the court below.

#### 4. Representation:

Counsel Onyait Aloysius represented the appellant, and Counsel Ajum Francis represented the respondent. I am grateful for the parties' filing of the written submissions and the same have been considered accordingly and shall be referred to when and where necessary.

b) Duty of the first appellate court:

The duty of a first 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. 20 $10/1997$ where it was pointed out that;

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

$5$

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

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

This appellate court is empowered by Section 80 of the Civil Procedure Act, Cap 71, 10 to determine a case to its finality.

Furthermore, as this is a matter arising from a civil suit dispute, the appellant still had the burden of proof as is required by sections 101 and 102 of the Evidence Act, <u>Cap 6</u>) to prove his case on a balance of probabilities. This position has equally been

well pronounced in the various decisions of court including that of Nsubuga vs 15 Kawuma [1978] HCB 307 which I associate with.

Correspondingly, in the case of *Erumiya Ebyetu v. Gusberito [1985] HCB 64*, the position in *Nsubuga's case* (supra) was further hhighlighted thus 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."

As required of this Honourable Court, in resolving this appeal, I have taken into consideration of the above legal principles and positions.

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

I will consider and resolve the grounds of appeal in the following manner: grounds 25 1, 2 and 3 together, and lastly, ground 4.

a) Grounds I, 2 and 3: $\frac{1}{2}$

$\mathsf{S}$

- The Learned Trial Magistrate erred in law and fact when he declared the respondent the rightful owner of the suit land, thereby occasioning a *miscarriage of justice.* - The Learned Trial Magistrate erred in law and fact when he ignored the <u>uncontradicted</u> evidence of the appellant, thereby occasioning a miscarriage of justice. - The Learned Trail Magistrate erred in law and fact when he failed to properly evaluate evidence on record, thereby arriving at a wrong decision and causing *a miscarriage of justice.* - I have reevaluated the evidence adduced in the lower court in light of the grounds 15 in this instant appeal. The respondent's witnesses testified that the respondent inherited the land from his father, Modo Tito, who also inherited it from the plaintiff's grandfather, Okure Venasio.

They told court that there were homesteads on the suit land for Okure and Modo and described the neighbours of the suit land, some of whom testified like Omongin 20 Martin (PW2), Ondogai Christopher (PW4).

The respondent told the court that his father was not buried on the suit but some of his relatives were.

The respondent's witnesses also told the court that due to the insurgency caused by the Karimojong, the respondent's father briefly left the suit land in 1975. 25

The respondent's witnesses such as PW2, PW3, PW4 and PW5 all testified that the $\mathsf{S}$ appellant encroached on the suit land by taking advantage of the time that the respondent's father had left because of the insurgency.

PW1, PW2, PW3, PW4 and PW5 all testified to the tracing of the inheritance from Okure to the respondent of the suit land.

Omongin Martin (PW2), a neighbour to the suit land, confirmed that the land belongs 10 to the plaintiff/respondent and that he inherited it from his late father, who inherited it from the plaintiff's grandfather, who settled on the land in 1941 when PW2 was 6 years old and he confirmed the same.

PW2 told the court that the plaintiff's father also stayed on the land. Okol Boniface 15 (PW3), a peasant known to both parties and a neighbor to the suit land, told the court that the land belongs to the respondent, who inherited it from his father, who inherited it from the plaintiff's grandfather.

He confirmed that the defendant/appellant entered the suit land when people were disorganized by the Karimojong insurgency.

**Ondogai Christopher (PW4)**, a neighbour to the suit land who stayed in the home of 20 the respondent's father, told the court that the defendant grabbed the suit land in 2017, but it belongs to the plaintiff, who inherited it from his late father.

Atim Perepetua (PW5), a sister to the plaintiff's late father, testified that the suit land is for the plaintiff, who inherited it from his father, who inherited it from the respondent's grandfather.

On the other hand, the appellant's witnesses all asserted that the grandfather of the $\overline{5}$ plaintiff, Okure Venansio, was allowed to settle temporarily on the suit land, but he was given temporarily 2-3 acres and that he later left and never returned to use the suit land.

The appellant's witnesses testified that most of the people in the area where the suit land is located are of the clan of the appellant and not the respondent. 10

Omyang Robert (DW1) told the court that the plaintiff's father took refuge at Angiro's home.

At locus, the plaintiff/respondent showed the court the old homesteads of his grandfather Okure Venansio and Modo Titus, which had been testified to by PW2 and PW5.

According to its record of proceedings of the locus in quo, the court confirmed the three graves of Akello, buried in 1977, Ogwel, and Ibwangolet, buried in 1974, whom plaintiff/respondent said were his aunties and brother, as testified to by PW5. Whereas the defendant/appellant showed the court 3 old homesteads of his father,

Angiroi Samwiri, and his grandfather, Obwokori. Both testified to be neighbours of 20 the suit land.

One of the respondent's witnesses testified that the respondent's grandfather was on the suit land in 1940.

The evidence of ownership of the suit land that the appellant's counsel submitted was that because the appellant's witnesses testified that the respondent's 25

grandfather had once lived on the suit land, it was the appellant's father who had $\mathsf{S}$ granted that permission.

The appellant did not adduce cogent evidence to show that the respondent's grandfather lived on the suit land on invitation by the appellant's father.

For that matter, the court cannot use that as evidence of the appellant's ownership of the suit land 10

The appellant ought to have adduced evidence of consent, authorization, or permission that his father had given the respondent's grandfather to stay on the land.

Moreover, the appellant's counsel asserted that because the appellant witnesses' evidence was not subjected to cross-examination, then it is unchallenged and true. 15 I disagree with the appellant counsel's view that unchallenged evidence in chief is truthful evidence because it still has to be assessed by the court and compared with other substantial evidence available to distil its evidential value and probity.

On the contrary, the respondent's evidence was consistent as to ownership of the suit land, which the respondent averred to have inherited from his father, who 20 inherited it from the grandfather.

The respondent's witnesses adduced evidence to show that the relatives were buried on the suit land at different times, and no evidence was adduced to show any complaints from the appellants, rather at a locus, the court was able to confirm the graves as testified by the respondent's witnesses. The respondent's witnesses also told the court of the old homesteads of the $\mathsf{S}$ plaintiff's father and his grandfather, confirmed at locus.

I noticed the contradictions in the sizes of the land approximate size as 38 (Otim Andrew Moses), 20 (PW4 and PW5) and 80 (PW2) gardens or acres, which also the trial magistrate noted.

However, the respondent's plaint indicated 35 gardens/ hectares. The common 10 ground is that the suit land is unregistered land, and the slight variances in sizes are expected because unregistered land is not normally surveyed as different methods of measurements could be used.

Also, the respondent's witnesses were consistent on the location of the suit land, and even some neighbours to the suit land who were unchallenged in evidence 15 testified to the plaintiff's ownership of the suit land.

The contradictions and inconsistencies, when measured, impact the acceptance or non-acceptance of evidence, but in this case, they were minor because the respondent's witnesses adduced other features or evidence that the suit land is not questionable.

In this case, considering that the suit land is unregistered land, which makes it unmeasured, and in light of the other consistent evidence of the respondent's witnesses, the inconsistencies in the size, in my view, are minor and cannot lead to rejection of cogent evidence showing ownership.

In the case of Alfred Tarjar vs Uganda EACA CR Appeal No. 167 of 1969, it was held 25 that it is trite law that grave inconsistencies and contradictions, unless satisfactorily

explained, will usually but not necessarily result in the evidence of a witness being $\mathsf{S}$ rejected.

In my view, the discrepancies regarding the size of the land are minor and not grave. The respondent's witnesses were also consistent in their testimonies regarding how the appellant trespassed onto the respondent's land between 2016-2017.

I find that the appellant's counsel also engaged in speculation, such as questioning 10 why the suit land was not distributed yet the respondent's father's other land, like that in Akajikaji, was distributed.

I do not agree that the speculation suffices to impute ownership of the suit land onto the appellant, who did not adduce evidence on a balance of probabilities proving his ownership of the suit land.

I am thus of the view that the respondent was able to show how the different interests were acquired consistently. This is in line with the court's observation in the case of *Ojwang vs Wilson Bagonza CACA No. 25 of 2002* where it was observed that for one to claim an interest in land, he/she must show that he/she acquired an interest in land/title from one who previously had an interest in the suit land.

In contrast, while it was an agreed fact that the respondent's grandfather had stayed on the suit land at some point, the appellant failed to persuade the court to believe that it was the appellant's father who gave him permission to do so and on a balance of probabilities, I find that the respondent has proved that he is the owner of the suit land. Grounds 1,2 and 3 fail.

b) The Learned Trial Magistrate erred in law and fact when he awarded excessive general damages against the appellant without a basis, thereby occasioning a miscarriage of justice.

$\mathsf{S}$

The appellant's counsel contended that the award of UGX 10,000,000 over unregistered and village land was high and unjust and that the trial court's judgement was devoid of any principle applied before arriving at the impugned amount.

The appellant's counsel contended that the trial magistrate should have noted that the lineal descendants from whom the respondent claims title to the suit land left the suit land in 1979 (by the respondent's testimony).

That since then, they had never returned to the suit land and going by the record 15 when the respondent testified in court; they had been out of the suit land for an entire 38 years; thus, this is not the kind of litigant who deserved an award of UGX 10,000,000.

The appellant's counsel further contended that the respondent slept on his rights and could not be awarded such a colossal sum. In this respect, the appellant's 20 counsel referred to the case of Crown Beverages Ltd. v. Sendu Edward, SCCA No. 01of 2005, where the Supreme Court of Uganda found UGX 15,000,000 awarded as general damages to a respondent by the High Court and confirmed by the Court of Appeal to have been so high and excessive in the circumstances.

Oder (JSC as he then was) had it reduced to UGX 3,000,000 as general damages. To 25 that end, counsel for the appellant submitted that the UGX 10,000,000 which was

awarded to the respondent as general damages was excessive as to make it an $\mathsf{S}$ entirely an erroneous estimate of the damages to which the respondent is entitled.

On the other hand, the respondent's counsel contended that the Respondent sought general damages from the Appellant for trespass, inconvenience and the expenses incurred.

The respondent's counsel further submitted that the law on general damages, which 10 was summed up in the case of Dr Dennis Rwamafa Vs A. G [1992] KARL 21, was that a Respondent who suffers damage due to wrongful act of the defendant must be put in the position he would have been had he not suffered the wrong.

To that end, counsel argued that since the respondent had proved that the defendant was a trespasser on the suit land, the respondent was entitled to general 15 damages.

The respondent's counsel also submitted that the appellant disregarded the rights of the respondent as an owner because the appellant not only cultivated on the suit land but also cut trees and sold them on the suit land during the pendency of the suit. Thus, the Magistrate was therefore correct in the quantum of damages

awarded.

In considering the issue of the awarded general damages, I have had the occasion to peruse page 3 of the trial court judgment. In it the trial magistrate entered judgement in the respondent's favour and among other terms, he awarded the respondent UGX 10,000,000 as general damages for infringement of the respondent's rights of ownership of the suit land.

According to Garner (2009) Black's Law Dictionary (9<sup>th</sup> ed.) on page 446, general $\mathsf{S}$ damages are damages that the law presumes follow from the type of wrong complained of; specific, 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. 10

According to Paragraph 15.6.19 on page 171, Ssekaana, M., & SN. Ssekaana, S. (2019). Civil Procedure and Practice in Uganda (2<sup>nd</sup> ed.). LawAfrica, 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 [*Ouma Vs. Nairobi*

*City Council [1976] KLR 297*. 15

general or special damages.

In paragraph 15.6.20, Ssekaana, M., & SN. Ssekaana, S. (2019) opines that 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

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 25 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 $\mathsf{S}$ (1894) 9 Exch 341.

Correspondingly, 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.

In the case of *Uganda Commercial Bank versus Kigozi [2002]1 EA 35*, the court gave guidance on how to assess the quantum of damages that is it must be;

"... the consideration should mainly be the value of the subject matter, the 15 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 stated that 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.

In the case of Imukot and Others v Arukori (Civil Appeal No 32 of 2021) 2023 UGHCCD **121**, I did observe the following, among others that:

"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.

$\mathsf{S}$

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 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 the instant facts, the plaintiff, in his plaint in paragraph 7, averred that as a result of the defendant's conduct, he has been put to anguish, mental suffering and inconvenience for reason whereof the plaintiff shall claim general damages. 20 However, in the testimonies of the respondent's witnesses, they contended that the appellant felled trees and sold the land, but no other cogent evidence was adduced to support those claims.

Moreover, the respondent's witnesses also told the court that despite the respondent's father and grandfather having been on the land, the respondent had 25 not been on the suit land.

I have carefully perused the trial judgement and I have noted that the trial $\mathsf{S}$ magistrate did not give any reasons for exercising his discretion to that extent that it awarded UGX 10,000,000 as general damages.

That award was thus spurious and without any cogent evidence to that effect. In the circumstance of the nature of the suit land being a rural piece of land and it being unregistered, I would find that the award of UGX 10,000,000 was not based on any principle of law, on the higher end, not justified and was entirely an erroneous estimate of the damages.

Accordingly, I would substitute UGX 10,000,000 with UGX 500,000 as being sufficient in the circumstances. In the circumstances, the ground four is allowed.

## 6. Conclusion: 15

Having determined grounds one, two and three in the negative and only ground four in the affirmative, I believe, on the whole, no miscarriage of justice was occasioned onto the appellant.

In effect, I uphold the trial magistrate's judgment and orders save for the reduction in the general damages.

This instant appeal, therefore, succeeds in part only in respect of ground 4 but fails on grounds 1, 2 and 3 for the reasons given above.

- 7. Orders - a) This instant appeal fails on grounds 1, 2 and 3 with the judgment and orders of the lower court allowed in that respect.

- b) This instant appeal succeeds only in respect of ground 4 and I do substitute the award of substitute UGX 10,000,000 WITH UGX 500,000 as general damages. - c) After deep soul searching and after considering the position of the parties herein, I am inclined to order that each party herein bears own costs in this appeal and the lower trial court.

I so order.

Hon. Justice Dr Henry Peter Adonyo

Judge 17/07/2024

$\mathsf{S}$

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