THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA
HOLDEN AT MBALE
(ORIGINAL MBALE CIVIL SUIT NO. 49/2011)
MANAFWA DISTRICT LOCAL GOV’T…………….……APPELLANT
BEFORE: THE HON. MR. JUSTICE HENRY I. KAWESA
The appellant being aggrieved by the Judgment and orders of Her Worship Atingu Beatrice in CS.49/2011 appealed on six grounds. However in arguing the appeal, grounds 2 and 3 were dropped; effectively leaving court to consider four (4) grounds of appeal.
The grounds were:
That the learned trial Magistrate erred in law and fact by awarding compensation for the land without any valuation report regarding the actual value of the suit land.
Learned trial Magistrate erred in law and fact and misdirected herself when she decided and found that the respondent is entitled to all the remedies prayed for in the plaint.
That learned trial Magistrate misdirected herself to award respondent special damages without specific proof.
Learned trial Magistrate failed to properly evaluate the evidence on record and arrived at a wrong decision.
As a first appellate court, this court must review the evidence afresh, scrutinize it and make fresh conclusions thereon, but with caution since it did not have chance to examine the witnesses.
According to the lower court record, the amended plaint the plaintiff sued defendant for recovery of shs. 22,000,000/= being compensation for the deprivation of his land located at Butuwa-Bukimanayi Parish, Kaato Sub-county in Manafwa District, special damages for the destruction of property on the suit land, general damages, interest thereon and costs of the suit. The details are contained in paragraphs 4 and 5 of the plaint.
In defence according to the written statement of defence, defendant denied liability claiming in paragraph 6 of the written statement of defence that the said road existed before but was only rehabilitated at the request of the community and defendant has no claims.
Alternatively they argued that the land didn’t belong to plaintiff.
I have gone through the evidence through PW.1, PW.2 and DW.1- DW.6, and the two witnesses at locus Wabwire David and Makanya Massa. I have also looked at the documents exhibited in defence as exhibits in the lower court. I have also read and analyzed the judgment of the learned trial Magistrate. Given the submissions by both Counsel on the appeal, the following are my findings.
The entire evidence on record establishes the fact that the government undertook to rehabilitate the road in question, which happened to encroach on the land utilized by plaintiff. Evidence of ownership of this land was attributed to the plaintiff through evidence of PW.1 and PW.2. DW.1 agreed it is his (PW.1’s) land. The only question under this appeal on this ground relates to the value of this land. The appellant maintains that the value of 10,000,000 (Ten millions) awarded by court as compensation without evaluation was erroneous. The respondent argued that the valuation would only guide court but is not mandatory, and hence the learned trial Magistrate made a proper finding.
The Constitution of Uganda recognizes the need for adequate compensation for any land or property compulsorily acquired or taken by government. In this case the evidence before court is clear that the road that was meant to be rehabilitated had become “Bushy” to the extent that by time road works commenced, it was “ a mere path.” This is from the evidence of PW.1, PW.2, DW.5- Samwiri Wambede and DW.6 Kitutu Patrick.
The witnesses at locus also testified so. There is no evidence from defendants/appellants therefore to show how they established the area where the former road used to be. No mark stones were referred to, or survey reports, maps etc. This means that the extent of road which was rehabilitated cannot be ascertainable even from their own records. It is difficult therefore for defendants/appellants to argue that the value of the land encroached on was below 10,000,000/= since neither the plaintiff nor the defendant had any valuation report. The court as an independent arbiter if it had deemed it necessary would have called for an independent valuation to aid it to reach a just decision but this was within the discretion of the learned trial Magistrate.
In her judgment while deciding this point at page 5 the Magistrate merely awarded plaintiff “shs. 10,000,000/= as compensation.”
This finding is what the appellant finds unjust, since it was not based on any evidence or proof. I agree with appellants that if the plaintiff came to court with a plaint claiming 22,000,000/= (Twenty Millions) as compensation for the land, he was expected to lead evidence in court to prove that fact. Section 100,101 and 102 of the Evidence Act places the burden of proof on the one who alleges a fact to prove it. If court did not believe that this compensation was not to the tune of 22,000,000/= then where did it get the impression that the same was worth 10,000,000/= (Ten Millions)?
The arguments by the Respondent on this point, that court used its discretion does not help because compensation is a specific performance issue aimed at making good value for money lost. This court takes judicial notice that government whenever it deals with compensations in land matters in similar scenarios, uses the office of the Government Chief Valuer, who returns a value acceptable to government to act as a starting point for any compensation by Government. In the absence of such a report to guide court, an award of 10,000,000/= (Ten Millions) as compensation would be speculative and without, force of law, since it was not proved by the plaintiff. This ground therefore partially succeeds. (A.K.P.M Lutaya vs A.G. CA.2/2005 followed).
Grounds 2 and 3:
Appellants argued both grounds jointly. Appellants argued that respondent was not entitled to the remedies awarded; since he failed to prove his case on a balance of probabilities as provided under Section 101, 102 and 103 of the Evidence Act. He quoted Kibimba Rice Co. vs. Umar Salim SCCA No. 7/98- which held that evidence has to be proved for claims for general damages; for inconvenience, mental suffering and anguish. He argued that the plaintiff did not lead any evidence to that effect. In A.K.P.M Lutaya v. AG. CA.2/2005 where it was noted that the appellant went out his way to employ expert valuers and the respondent challenged the evidence but did not rebut the evidence. The appellant’s Counsel therefore argued that claims of this nature should not be based on mere speculation.
Respondent however insisted that the appellants were liable because the Respondent pleaded and specifically proved the damages. He referred to Placid Weli v. Hipo Tours & 2 Ors HCC No.939 of 1994, Hororanto Busulwa Ssalongo v. Abdu Senabulya & 5 Others HCCA.7/2002, KCC & Nankya (1972) EA 446, which in essence restated the need to plead and specifically prove damages.
On general damages, Respondent emphasized that court has discretion to award general damages. He relied on Freda Cynthia & Isingoma v. Lukenge Richard & Ors HCT CIVIL SUIT 14/2009 and British Transport Commission v. Gourley (1995) AC 185/197 (However counsel for Respondent did not provide any of the authorities referred to above to court).
The law has been rightly articulated as above. The only question is that of proof of the damages.
I have gone through the reasoning employed by the learned trial Magistrate in making her conclusions and would like to make findings as herebelow.
Contrary to learned trial Magistrate’s findings, it is my finding that the affected road area was programmed by the Government under their road rehabilitation programme.
The Government programme was meant for roads which had been earmarked as roads in existence – it never meant creation of “new roads.”
Evidence on record through PW.1, PW.2,D.5, D.6 and the 2 witnesses at locus all gave evidence which showed that plaintiff in the process of carrying out the project, created “a road” out of what had become a village “path”. (The road had narrowed to the size of a path, and the contractors built it by “widening it”). See evidence of D.6.
The above evidence on record is enough in my view to persuade this court to make a finding that as a result of the “Widening” of the road, certain crops belonging to the plaintiff got uprooted and destroyed. The evidence on record is however is not very cogent in showing the extent of this damage and loss. I notice on record that PW.1- on page 6 of the proceedings confessed that:
“It appears am getting trouble over adducing evidence on special damages…..” he prayed for adjournment at that stage.
It should be noted that by that time he had only talked about loss of a coffee plantation of about 65 stems, from which he expected 3 to 4 million shillings.
This type of evidence is speculative as pointed out by appellants. The other figures he later came up with on page 8 of the pleadings were an afterthought coming after his confession of page 6. It is also noted that these figures are not based on any documentary exhibit, expert opinion or another independent evaluation. It is simply his word of mouth. I also notice that PW.2, contradicts PW.1 by stating that the crops were coffee trees, bananas, cassava and beans. This is against a background of DW.1 Wakimwayi Deo’s evidence that “the coffee is still there” (page 15), DW.2; who stated the land is one quarter of an acre and “nothing was destroyed” (page16).
DW.5 S. Wambeka who said he knew no complaint of loss. At locus Wabwire said it was “coffee destroyed.”
Putting all that within the specific evidential rules of proof, it would be unsafe to conclude as the learned trial Magistrate did that plaintiff is entitled to all remedies prayed for.
I would therefore make a finding that the learned trial Magistrate was in error to find that the Respondent was entitled to all remedies prayed for. The evidence shows that Respondent would only be entitled to adequate compensation for land unlawfully developed by government, but not shs. 10,000,000/= as awarded. Also shs. 3,000,000/= for trees destroyed was not proved, 300,000/= for beans was not proved, 300,000/= for cassava was not proved, 4,000,000/= for coffee was not proved, 1,000,000/= for the banana plantation was not proved.
I did not see any evidence on record to show that the figures above were proved at the locus as stated by the learned trial Magistrate. The whole award for specific damages was therefore not proved and I will hereby set it aside.
Regarding general damages, it is trite law that they are at the discretion of court. However on appeal they are rarely interfered with unless they are shown to be manifestly excessive or illegally awarded.
Having examined the genesis of this case, and the jurisprudence laid down in decided cases. Following the reasoning and holding in the Court of Appeal decision in A.K.P.M Lutaya v. AG. CA 2/2005 there should be same evidence to guide court on a formula to use in reaching an award of general damages. The court uses rules of reasonableness and natural justice to reach a reasonable award.
The court in Lutaya took into consideration the length the case took, the nature of loss, inconvenience, time wastage and anticipated inconvenience.
Applying the above test to this case, Respondent’s Counsel argued that the deprivation of land would affect him socially, economically and psychologically. I take judicial notice of the fact that this land was used to build a road which was aimed at developing the area. The Respondent would also benefit and utilize the benefits of this road. The only loss that he suffered is the crops allegedly destroyed, and anticipated future loss of income from the said use of the area taken from him for growing his crops. Given the nature of the case, basing on the evidence, it is on record from his evidence that he lost 65 stems of coffee. Assuming each stem was to yield at least 10kgs of coffee, and each kilo was costing 10,000/= as testified, then the loss would be about 6,500,000/=. This amount is as at that time. If we build in future anticipated loss, the amount of 8,000,000/= (eight Millions) as allowed by the learned trial Magistrate would be reasonable. However I do not see justification for interest being pushed up from court rate to 12% p.a.
I therefore will allow the respondent to recover 8 millions as general damages with interest at court rate.
The above grounds partially succeed as above.
In determining grounds 1, 2, and 3 above I discussed the evaluation of evidence by the learned trial Magistrate. I pointed out that the learned trial Magistrate erred to find that the evidence did not show that there had ever been a road. The evidence through D.5 and D.6 along with the two witnesses at locus testified that there was a road, which became bushy and later became a path. When the local government set forth to rehabilitate the road, they “widened it”. It is therefore clear that though PW.1 and PW.2 referred to the same as a “path”, the evidence from the defence showed that this road existed, but was neglected, became bushy and became to the size of a path by the time of rehabilitation.
It is therefore my finding that in as far as her findings specifically on this point the learned trial Magistrate was in error. I therefore uphold the ground of appeal as above.
In the final analysis to the extent of arguments as herein this appeal, partially succeeds with the following orders.
The lower court finding that the appellant compensates Respondent shs. 10,000,000/= is set aside and replaced with an order that the Respondent be paid adequate compensation, by appellant after an independent valuation of loss is done by the Government Valuer and submitted to court by both parties for approval in accordance with known legal procedures.
The award of special damages is in whole set aside.
The award of general damages of 8,000,000/= is upheld but with interest at court rate.
One half of the taxed costs of this appeal are awarded to the appellants. I so order.
Henry I. Kawesa
Right of appeal explained.