Semambo v Tumukunde (Civil Appeal 38 of 2018) [2024] UGHCCD 117 (17 July 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (CIVIL DIVISION) CIVIL APPEAL NO. 36 OF 2018 (ARISING FROM NAKAWA CIVIL SUIT NO. 267 OF 2014) SEMAMBO GODFREY :::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT VERSUS**

## **TUMUKUNDE RICHARD :::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

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

## **Introduction**

[1] The Appellant being dissatisfied with the judgment and decree of His Worship Karemani K. Jamson, then Chief Magistrate, delivered on the 27th day of November 2018 at Nakawa Chief Magistrates Court, brought this appeal seeking orders that the appeal be allowed and the costs of the appeal and in the lower court be borne by the Respondent.

## **Brief Background to the Appeal**

[2] The Respondent filed a suit in the lower court against the Appellant seeking special damages, general damages and costs of the suit arising out destruction of poultry structures upon re-entry on a piece of land that had been hired by the Respondent from the Appellant. It was stated that in May 2009, the Respondent entered into an oral agreement to rent the Appellant's land at Mbuya Zone for purposes of carrying out a poultry farming project for a period of two years. The Respondent averred that he put up temporary structures and started raring chicken. After some time, the Respondent was directed by the Appellant to remove his chicken from the premises; which the Respondent refused to do. In December 2009, the Appellant destroyed the structures and all the other properties that the Respondent had put on the land. In his defence in the lower court, the Appellant denied Respondent's claims and stated that the Respondent constructed the structures on the land without signing an agreement, started to plant crops and bringing animals on the land contrary to the terms that had been agreed upon. The Respondent also later brought different persons on the land who included brokers wanting to sell the appellant's land. The Appellant stated that he removed the structures with the knowledge and in presence of Local Council officials for purpose of transfer of the Respondent's project to a nearby land where the Appellant could watch what was going on. The learned trial magistrate entered judgment in favour of the Respondent and ordered the Appellant to pay to the Respondent a sum of UGX 10 million as general damages and the costs of the suit. The Appellant was dissatisfied with the judgment, hence this Appeal.

### **Representation and Hearing**

[3] At the hearing, neither the Appellant nor his advocate appeared. The Respondent on his part was represented by **Mr. Robinson Nkwasibwe** who appeared on brief for **Ms. Peace Namulindwa** from M/s Peace & Co. Advocates. The Court directed that the hearing proceeds by way of written submissions. Both Counsel made and filed their written submissions; which I have considered in the determination of the matter before Court. The Appellant's submissions were filed by the firm of M/s Muslim Center for Justice and Law.

#### **Preliminary objection**

[4] In their written submissions, Counsel for the Respondent raised a preliminary objection to the effect that the amended memorandum of appeal was filed without leave of the court contrary to the provisions of Order 43 rule 2 of the CPR. Counsel cited the case of *Zeresire Tereza v Danda Rwakasenyi & Anor HCCA No. 50 of 2017* where an amended memorandum of appeal was struck out for having been filed without leave of court and submitted that the amended memorandum of appeal should be struck off with costs. In reply, Counsel for the Appellant argued that the Appellant drafted his own grounds of appeal that were modified by counsel in the amendment. Counsel submitted that court should consider not to set aside the amended memorandum of appeal.

[5] The provision under Order 43 rule 2 of the CPR is as follows;

## *"Grounds which may be taken in appeal.*

*The appellant shall not, except by leave of the court, urge, or be heard in support of any ground of objection not set forth in the memorandum of appeal; but the High Court in deciding the appeal shall not be confined to the grounds of objection set forth in the memorandum of appeal or taken by leave of the court under this rule; except that the High Court shall not rest its decision on any other ground unless the party who may be affected by the decision has had a sufficient opportunity of contesting the case on that ground."*

[6] The above provision does not bar a party from amending a memorandum of appeal. Neither does it prescribe a period within which a party may or may not amend their memorandum of appeal. The provision, however, makes provision for two things; one is that the court on appeal shall not rely on a ground that is not set out in the memorandum of appeal; and two, that the court on appeal shall not rest its decision on any other ground unless the party who may be affected by the decision has had a sufficient opportunity of contesting the case on that ground. In my considered view, these provisions are not meant to bar amendment of a memorandum of appeal. Rather, they are meant to eliminate any prejudice that could be occasioned on a respondent by inclusion of matters in the course of hearing an appeal that were either not set out in the memorandum or were not brought to the attention of the respondent so as to enable the respondent raise their contest to such a matter.

[7] As such, where an appellant amends a memorandum of appeal within reasonable time or any time before the appeal comes up for hearing; and effects service of the amended memorandum upon the respondent in time before the appeal comes up for hearing, it cannot be said that such an amendment is in contravention of Order 43 rule 2 of the CPR, cited above. In such a case, the court and the respondent would have received notice of any changes in the grounds of appeal and would be aware as to which grounds of appeal are the subject of the hearing. Such amendment would neither be barred by any law nor would it contradict the objective of the above cited legal provision.

[8] In the present case, although the amended memorandum of appeal was filed approximately 09 months later from the time of the initial memorandum, it is apparent that the appeal had not yet come up for hearing, the respondent was notified of the amendment, and the amended memorandum was the one included in the record of appeal. As such, the respondent was aware of which grounds were the subject of the hearing on appeal. Indeed, in their submissions, Counsel for the Respondent argued the amended grounds of appeal. The amendment was therefore neither in breach of any law nor did it occasion any prejudice. The preliminary objection raised by Counsel for the Respondent is therefore devoid of merit and is overruled.

### **The Grounds of Appeal**

[9] The Appellant raised three grounds of appeal in the amended memorandum of appeal, namely;

- *a) That the learned trial Chief Magistrate erred in law and in fact when he failed to evaluate properly the evidence on record hence arriving at a wrong conclusion.* - *b) That the learned trial Chief Magistrate erred in law and fact when he ignored the evidence of the valuer and other evidence on record.*

c) *That the learned trial Chief Magistrate erred in law and fact when he granted general damages of 10,000,000/= to the plaintiff.*

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

[10] The duty of a 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 71*. This position has also been re-stated in a number of decided cases including *Fredrick Zaabwe v Orient Bank Ltd CACA No. 4 of 2006*; *Kifamunte Henry v Uganda SC CR. Appeal No. 10 of 1997*; and *Baguma Fred v Uganda 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**

[11] I will handle grounds 1 and 2 concurrently since ground 1 only makes sense if considered in the context of ground 2.

*Ground 1: The learned trial Chief Magistrate erred in law and fact when he failed to evaluate the evidence on record hence arriving at a wrong conclusion. Ground 2: The learned trial Chief Magistrate erred in law and fact when he ignored the evidence of the valuer and other evidence on record.*

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

[12] It was submitted by Counsel for the Appellant that the learned trial Chief Magistrate did not consider the evidence of the ruling in the criminal cases where it was held that the defendant/appellant was right to remove the Respondent's structures and re-enter his land. Counsel also submitted that the trial magistrate did not take into consideration the fact that the valuer did not carry out the valuation in the presence of both parties or local council officials of the area. Counsel argued that the Respondent could not be awarded any damages when there was no proper report. Counsel further pointed out that in the lower court, the Respondent had introduced himself as an employee of housing finance bank but it was discovered that he had already been dismissed and that he had committed an offence of forging the signature of the President which implied that he was a fraudulent person.

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

[13] In response, Counsel for the Respondent submitted that the trial Chief Magistrate cannot be faulted for not relying on the valuation report. Counsel stated that the valuation report sought special damages and the court rejected it on account that it was unreliable. Counsel referred the court to page 76 of the Record of Appeal for the trial magistrate's finding that the report was quite unreliable. Regarding the claim that the trial Chief Magistrate did not rely on the ruling in the criminal case where court held that the appellant was right to remove the respondent's structures and re-enter the land, Counsel for the Respondent cited the case of *Kakira Sugar Works Ltd v Patrick Masembo & Anor HCCS No.120 of 2004* to the effect that a civil suit and a criminal case are primarily different cases under different laws and procedures and that the acquittal of the defendant in the criminal offence does not necessarily prohibit the plaintiff from instituting a civil action if evidence is adduced and their liability proved to the required standard. [14] On the allegation that the Respondent was dismissed by Housing Finance Bank and that he committed the offence of forging the signature of the President of Uganda, Counsel submitted that the said allegations were false and immaterial to the case before the court. Counsel prayed that grounds one and two of the appeal fail.

## **Determination by the Court**

[15] Looking at the judgment of the trial court, specifically at page 76 of the Record of Appeal, the trial Magistrate rejected the valuation report presented by the Respondent (plaintiff) on account that it did not clearly show the basis of the assessed value and, as such, the trial court had found the report quite unreliable. As pointed out by Counsel for the Respondent, the evidence in the valuation report was intended to prove special damages which it fell short of doing. The trial court therefore gave the valuation no evidential value and the claims based on it failed. I find it strange that the Appellant is aggrieved by that finding since it is apparently in his favour. The Appellant appears to be under the impression that the award of general damages by the trial court was premised on the valuation report. This is a totally incorrect impression and proposition. The trial Magistrate properly indicated the basis for his consideration and award of general damages; which was that the Respondent had rightfully put his property on the suit premises and was entitled to remove them without their being destroyed or in presence of a court order.

[16] It is clear therefore that the award of general damages had nothing to do with the valuation report. It was based on the uncontested evidence that the Respondent had property on the suit land and that the property was removed by the Appellant upon a disagreement with the Respondent. There was ample evidence before the trial court, independent of the valuation report, that the Respondent's property was damaged by the Appellant. The trial court therefore properly evaluated the evidence before it, correctly rejected the evidence of the valuation report and came to a proper conclusion on the law and the facts. In the same regard, the allegations regarding the criminal cases and the past criminal record of the Respondent were not matters in issue before the trial court and could not be the basis of the consideration and determination of the matter by the learned trial Chief Magistrate. I have therefore found no fault in the findings and conclusion of the learned Chief Magistrate. Grounds 1 and 2 of the appeal are devoid of merit and they fail.

*Ground 3: The learned trial Chief Magistrate erred in law and in fact when he awarded general damages of ten million shillings to the plaintiff.*

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

[17] Counsel for the Appellant cited the case of *Robert Coussens v Attorney General* to the effect that an estimate of prospective loss must be based on a foundation of solid facts otherwise it is not just an estimate and submitted that the Respondent and his witnesses did not prove to the court the number of hens he had at the time the Appellant removed the sharks. Counsel also stated that the report of the valuer does not prove having valued the land and was made without the local or police authorities to prove the facts of what was being valued. Counsel concluded that the appeal be allowed and the judgment of the Chief Magistrate be set aside.

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

[18] Counsel for the Respondent submitted that it is a well-established principle that an appellate court will not interfere with the award of damages made by the trial court unless the assessment of such damages was based on an erroneous principle of law or that the award was so outrageously low or so high, so as not to reflect the measure of damages the successful party ought to have been awarded. Counsel submitted that the Appellant himself admitted having demolished the structures of the poultry farm and that the Respondent suffered loss of business and income and mental anguish. Counsel reasoned that the evidence on record showed that the suit property was a poultry project which was demolished. Counsel stated that although the trial court may not have reached the exact loss, the loss of some economic value to him could not be ignored. Counsel concluded that the trial magistrate was not at fault.

## **Determination by the Court**

[19] It appears to me that the Appellant's Counsel holds a misconceived view of the nature, purpose and mode of assessment of general damages. The argument by the Appellant's Counsel gives an impression that in their view, the damages had to be proved as special damages before they could be awarded by the trial court. The principle extracted by the Appellant's Counsel from the decision in *Robert Coussens v Attorney General, SCCA No. 8 of 1999* was made by the Supreme Court in the context of damages in the form of lost earnings or loss of profits which, in law, are claimed and proved as special damages. The argument by Counsel for the Appellant is therefore out of context in that regard.

[20] For purpose of the record, let me set out here the law regarding assessment and award of general damages. The law is that general damages are the direct natural or probable consequence of the injury complained of and are awarded at the discretion of the court. The purpose of the damages 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; Kibimba Rice Ltd v Umar Salim, SC Civil Appeal No. 17 of 1992* and *Robert Cuossens v Attorney General (SCCA No. 8 of 1999) 2000 UGSC 2 (2 March 2000)*. In the assessment of general damages, the court should be guided by the value of the subject matter, the economic inconvenience that the plaintiff may have been put through and the nature and extent of the injury suffered. See: *Uganda Commercial Bank v Kigozi [2002] 1 EA 305*. Under the law, general damages are implied in every breach of contract and every infringement of a given right. The damages available for breach of contract are measured in a similar way as loss due to personal injury.

[21] In the present case, the trial court found that despite the Respondent's failure to prove the special damages claimed, the Respondent had established that he suffered some damages as a result of the Appellant's acts as per the evidence adduced. The facts were that upon an oral agreement, the Respondent had placed a poultry project on the suit land under a hire arrangement. When the parties disagreed, the Appellant forcefully removed the property that the Respondent had put on the land which caused loss to the Respondent. In the assessment of the trial magistrate, he found the sum of UGX 10,000,000/= as appropriate compensation by way of general damages. This is the finding that is being challenged by the Appellant under this ground of appeal.

[22] The position of the law is that an appellate court will not interfere with an award and assessment of damages by the trial court unless it is shown that the trial court has acted on some wrong principle of the law, or where the amount awarded is so high or so low, as to make the award to be an entirely erroneous estimate of damages to which the plaintiff is entitled. See: *Impressa Federici v Irene Nabwire, SCCA No.3 of 2000* and *Administrator General v Bwanika James & Others, SCCA No.7 of 2003*.

[23] In the present case, the learned trial Magistrate based the award of general damages on the evidence that was before him as evaluated in the foregoing paragraph. I find that the learned trial Magistrate properly construed the law and facts that were before him and came to a correct conclusion. I do not find the sum awarded to be an erroneous estimate of the quantum of damages that the Respondent (plaintiff) ought to have been entitled to in the circumstances. Accordingly, I find no justification for interfering with the award made by the trial court. There is no merit in this ground of appeal and it accordingly fails.

# **Decision of the Court**

[24] In all, therefore, all the grounds of appeal have been found to be devoid of merit and have thus failed. The appeal is accordingly dismissed. The judgment 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 17th day of July, 2024.*

**Boniface Wamala JUDGE**