Waligo v Wasajja (Civil Appeal 6 of 2022) [2025] UGHC 202 (21 April 2025)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MASAKA CIVIL APPEAL NO. 006 OF 2022 (Arising out of Kakuuto Land Civil Suit No.17 Of 2020)**

# **KAMUZATA WALIGO :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT VERSUS**

**WASAJJA DENIS ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

#### **Before: HON JUSTICE LAWRENCE TWEYANZE**

#### **JUDGMENT**

#### **Introduction.**

1. The Appellant being dissatisfied with the judgment and orders of His Worship Mfitundinda George in the Chief Magistrate's Court of Rakai at Kakuuto in Civil Land Suit No. 17 of 2020, brought this appeal seeking orders that the appeal be allowed, the judgment and orders of the lower Court be set aside, and that the Appellant bears the costs in this Court and the Court below.

### **Brief Background to the Appeal.**

- 2. The Respondent (as Plaintiff) instituted a suit against the Appellant (as Defendant) claiming for; a declaration that the Plaintiff is the rightful owner of the suit land; a declaration that the Defendant has no interest whatsoever in the suit land; a declaration that the Defendant is a trespasser; a permanent injunction retraining the Defendant from further trespass; an eviction order. The Plaintiff 's case was that the Plaintiff is the owner of the Kibanja situate at Kasoga village, measuring approximately 30 acres in Kakuuto Sub County, Kyotera District. That around June, 2021 the Defendant's animals trespassed on the Plaintiff 's Kibanja and destroyed his crops that included maize, peas, groundnuts and sweet potatoes. That the said animals were apprehended by the Plaintiff 's workers and the Defendant acknowledged that they were his. That assessment of damaged crops was conducted by the Agricultural Officer as UGX 13,362,000/=. - 3. On the other hand, the Defendant averred that he owns a Kibanja at Kasoga which he reserved for cattle grazing. That there is also a communal grazing land neighbouring the Plaintiff 's Kibanja. That there is a path through the Plaintiff 's Kibanja that has been there since 1960's. That the Plaintiff closed that said path denying the Defendant access to his Kibanja and communal grazing Kibanja. That the Defendant's cows trespassed on the Plaintiff 's Kibanja before this case but the same was resolved and paid compensation. That since then, the Defendant's cows have never trespassed on

Page **1** of **5**

the Plaintiff 's Kibanja. The Defendant denied the damage caused to the crops and the assessment of the loss suffered.

### **Representation and hearing.**

4. Both the Appellant and the Respondent were self-represented on appeal. The parties were directed to file written submissions. However, none of the parties complied.

## **The Grounds of Appeal**

- *1. The Learned Trial Magistrate erred in law and fact when he held that the Appellant's 70 herds of cattle trespassed and destroyed the Respondent's plantation valued at UGX 13,362,000/= hence causing a miscarriage of justice.* - *2. The Learned Magistrate erred in law and fact when relied on the report of the Agricultural Officer without photographic evidence to order the Appellant to pay UGX 13,362,000/= to the Respondent in special damages hence causing a miscarriage of justice.* - *3. The Learned Trial Magistrate erred in law and fact when he rejected the Appellant's evidence that the Respondent had been duly compensated by the Appellant thereby arriving at a wrong conclusion.* - *4. The Learned Trial Magistrate erred in law and fact when he disregarded the inconsistencies in the evidence of the Respondent's witnesses to hold that the Appellant's 70 herds of cattle trespassed and destroyed the Respondent's plantation valued at UGX 13,362,000/= thereby arriving at a wrong conclusion.*

## **Duty of the First Appellate Court.**

5. The duty of a first Appellate Court is to scrutinise 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 (Revised Edition)*. This position has also been re-stated in a number of decided cases including J.*F. Zaabwe vs Orient Bank Ltd CACA No. 4 of 2006*.

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

6. From the reading of the above grounds, it appears to me that they are intertwined and repeated in effect. The point of contention by the Appellant in all the grounds of appeal is that it is not true that his 70 herds of cattle trespassed and destroyed the Respondent's plantation valued at UGX 13, 362,000/=. The Appellant is seeking to challenge the decision arrived at by the Learned Trial Magistrate in regards his finding on the number of cattle that trespassed and destroyed the Respondent's plantation and the amount set at valued at UGX 13, 362,000/=. This is what the Appellant contests and that he duly compensated the Respondent. The above grounds

Page **2** of **5**

are unnecessarily repetitive but in the interest of justice and by the fact that the parties are self-represented, I will entertain these grounds. Therefore, the above grounds will be determined together. The Trial Magistrate in his Judgment at page 3 held as follows:

"*The Defendant in his case does not deny the fact that his cows trespassed on the Plaintiff 's garden and destroyed his crops, he however claims that whereas his cows destroyed Plaintiff 's crops he compensated him. He relies on the agreement dated 11-05-2020 where he paid 100,000/=. However, the Plaintiff did not sign the said agreement. As such the said agreement does not bind him. In circumstances, I conclude that the Defendant's cows trespassed on the Plaintiff 's garden.*

*As to whether the Plaintiff suffered any loss, PW III, agricultural officer attached to Kakuuto Sub County told court that he visited the Plaintiff 's garden and carried out valuation of the damaged crops. He told court that 7 acres of maize, one acre of sweet potatoes and 3 banana suckers were destroyed. That destroyed maize was approximately 2½ months old, and sweet potatoes were 2 months while bananas were approximately 6 months old. He valued the entire loss at Ugx 13,362,000/= Valuation report was tendered in court as exhibit and is marked PEII. Based on the above, I conclude that the Plaintiff suffered loss.*

*On what remedies available to the parties, having concluded that the Plaintiff suffered loss of Ugx 13,362,000/= the Defendant shall pay the said amount of money to the Plaintiff as special damages. The Defendant shall also pay costs of the suit to the Plaintiff."*

- 7. From the above excerpt and the evidence on record, it is true that the Appellant's cattle entered and destroyed the Respondent's crops. However, it is not clear how the Learned Trial Magistrate majorly relied and arrived at the value made by Mr. Ntambaazi Paul, the Agricultural Officer who made the valuation report dated 18th June 2020. It is not clear why the Learned Trial Magistrate did not visit locus in quo to ascertain what was on ground but only relied on the oral testimonies and the said report to reach the value of loss at UGX 13,362,000/=. In my view, the Agricultural Officer came in as an expert witness. - 8. It is trite that before the Courts, opinion evidence is generally not permitted. The exception to this rule is opinion evidence from an expert, who must be qualified as such before being permitted to testify. The practice is that parties to a suit each appoint their own experts to tender expert opinion evidence to the Court on an issue. It is subject to this practice that the Court may, on its own initiative at any stage of the suit, appoint an expert if it considers the expert opinion evidence given by the ones called by the parties deficient, or for some other good reason considers that a third opinion may help the Court in resolving an issue in the suit.

Page **3** of **5**

- 9. As a general rule, an expert is characterised as a person possessed of the special skill and knowledge acquired through study or practical observation that entitles him or her to give opinion evidence or speak authoritatively concerning his or her area of expertise. An expert's opinion evidence is intended to provide the Court with information which is outside its experience or knowledge. Because of their lack of a direct interest, it is believed they can provide the Court with an informed perspective that is distinct from that of the parties. - 10. In this case, the contested value is based on the document which is the valuation report tendered in by the Agricultural Officer dated 18th June 2020 marked as PE111 which indicate in part at page 2 of the report as follows:

#### *"Damage computation.*

*Given the above, the damages in economic terms were computed putting into consideration the production cost and farm gate price of the particular crop destroyed.*

*→ If growth had not been dully interrupted, an acre of sweet potatoes planted on ridges would yield 200/3\*70,000/= = 462,000/=, 30 banana suckers would also yield 30/1\*10000/= 300,000/=7 acres of maize planted would yield 12,600kg\*1,000/= = 12,600,000/=*

*→ Therefore, the total loss is as follows: sweet potatoes shs: 462,000/=+Banana shs:300,000/=+Maize grain shs: 12,600,000/= Would give UGX 13,362,000/=*

*The total loss is estimated to be 13,362,000/= (Thirteen million three hundred sixty-two thousand shilling only)*

*NB. I have calculated these costs considering the status of the crop, inputs used, age, variety of the crop, my technical expertise and the research conducted to establish the farm gate price of the particular crop in different traders."*

- 11. The above is what the Trial Magistrate based on to find that the Appellant is liable to pay the said sum of UGX 13,362,000/=. However, Court may as an expert of experts make findings on the value without a valuation report of an expert's opinion. *See: Premchandra Shenoi & another vs Maximov Oleg Petrovich; Supreme Court Civil Appeal No. 9 of 2003.* - 12. In the Trial Court, a question arose as to the amount of damage caused on the Respondent's plantation. In the interest of justice and certainty, the Trial Court ought to have visited the locus in quo to observe the actual size and damage caused by the Appellant's cows. The law permits the Trial Court to carry out an inspection of the locus in quo. According to Order 18 rule 14 of the Civil Procedure Rules, the Court may at any stage of a suit inspect any property or thing concerning which any

Page **4** of **5**


question may arise. Therefore, where it appears to the Court that in the interest of justice, the Court should have a view of any place, person or thing connected with the case the Court may, where the view relates to a place, either adjourn the Court to that place and there continue the proceedings or adjourn the case and proceed to view the place, person, or thing concerned.

- 13. From the record, both DW11, the Vice Chairperson and DW11, the LC1 information Secretary testified that they visited the scene and found that the Defendant's cows had destroyed 36 maize plants and the Defendant paid UGX 100,000/=. DW1, the LC1 Chairman of the area as well testified that he counted the maize plants and they were 36 in number. It is not clear why the Learned Trial Magistrate overlooked the testimonies of these Local leaders in the area in dispute. In my view, there was no sufficient evidence at the disposal of the Trial Magistrate to arrive at a conclusion that that the Plaintiff suffered inconveniences as a result of the actions of the Defendant and he awarded special damages amounting to UGX 13,362,000/=*.* With due respect to the Trial Magistrate, the values that were given by the Agricultural Officer were just estimations not based on any scientific material and moreover not subjected to vagaries of weather. If the Trial Magistrate had visited the locus in quo a different conclusion would have been reached. - 14. I find it just to alter and reduce the Trial Magistrate's finding in regards to special damages, since it was not proven on the balance of probabilities that the Respondent suffered a loss of UGX 13,362,000/= for his plantation. This appeal succeeds in regards to the valuation and I hereby reduce the special damages awarded from UGX 13,362,000/= to UGX 1,000,000/= (One Million Uganda Shillings only) as the proper compensation in the circumstances. The rest of the orders in the Trial Court stand. I make the following orders: - a) The award of UGX 13,362,000/= as special damages is substituted with UGX 1,000,000/= (One Million Uganda Shillings only). - b) Each party bares their own costs only in this appeal. It is so ordered

Judgment signed and delivered electronically at Masaka this 21st day of April 2025

……………………………………

**LAWRENCE TWEYANZE JUDGE. 21st April, 2025.**