Court name
HC: Land Division (Uganda)
Judgment date
7 July 2017

Okongo v Nabwire (HCT-04-CV-CA-2014/187) [2017] UGHCLD 11 (07 July 2017);

Cite this case
[2017] UGHCLD 11
Coram
Kawesa, J

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA

HOLDEN AT MBALE

 

HCT-04-CV-CA -187 OF 2014

(ARISING MBALE CIVIL LAND SUIT NO. 59 OF 2010)

 

OKONGO SINAMBIO                   ::::::::::::::::::::              APPELLANT

VERSUS

NABWIRE JANE                  :::::::::::::::::::::             RESPONDENT

 

BEFORE: HON. JUSTICE HENRY. I. KAWESA

 

JUDGMENT

 

Appellant  being  dissatisfied with  the Judgment  and  orders  of Her  Worship  Adong  Molly  of  31st  October  2014 appealed  to  this court. Appellant raised 4 grounds of appeal.

This court  as a first  appellate  court  has the duty  to appraise  the evidence  afresh, make  its own conclusions thereon, bearing  in  mind that it did not  have the chance to listen  to the  witnesses .

(PANDYA V. R ( 1957) EA 336)

From  the pleadings the plaintiff  sued defendant  for the suit land  which  was on 5th  February  2007 at a fee  of  200,000/= (Two hundred  thousands only).

The plaintiff claimed that defendant later trespassed on the land and demolished the houses belonging to the plaintiff thereon.  Defendant on the other hand  said  the suit  land was  for his mother who  later  chased plaintiff away  from  the land  for attempting  to sale  it .

The evidence on record was as follows:

PW1:  Nabwire Jane  who  said  she bought  the land on 5th  February  2007 at Shs  200,000/= and   a sale  agreement   that;  tendered  as PE1, PE2 was tendered  to prove  that the defendant  agreed to   refund 1,900,000/=  and  interest  of Shs  1,000,000/=; being  refund of  interest  for the  demolished houses.

PW2 Otenge Noah confirmed the fact that plaintiff bought the land from defendant.  He was the general secretary of LC1 at the time and witnessed on the agreement. He confirmed that defendant later trespassed on the land and demolished plaintiff’s houses thereon.

PW3: Emunget Wilberforce said defendant sold the land to the plaintiff, plaintiff took possession and later defendant trespassed thereon.

PW4 Valeriano Ofemba, also  said  plaintiff bought  from defendant.  He witnessed the purchase; and participated in measuring the suit land.

DW1: Okongo Sinambio said the land was given to plaintiff by his mother  Adikin  Rebecca  for temporary settlement. Plaintiff later wanted to sell the land then the mother chased her away. Later matter was reported to police and defendant forced to sign the agreement for refund of  Shs 1,900,000/= plus interest.

DW2- Okotche  Getrude confirmed DW1’s  statement  above.

DW3- Okumu Sinambio , said that clan  sat  and  plaintiff was ordered  to  vacate  the suit  land as her  agreement  was forged.

Court visited locus and made observations and took down evidence thereat.

At close of the hearing court   found in favour of the plaintiff/ Respondent hence this appeal.

I now determine the grounds of appeal as follows:

Ground1: Failure to evaluate evidence

The appellant’s counsel  contended that the learned trial Magistrate  ought  to have found  from  the  evidence on record that the seller  of the land had  no  title or  ownership to  the land  sold. He argued that the sale was illegal and the transaction should not be condoned by court.

The Respondent’s counsel however reviewed all evidence and argued that the learned trial Magistrate was right in his findings.

I have examined the evidence. The evidence Act Sections 101, 102,103 requires he who alleges a fact to prove it. The plaintiff had the burden to prove that the land was hers and defendant trespassed thereon.

The plaintiff led evidence of PW1, PW2, PW3, PW4, PE1 and PE2 to prove this fact.

This evidence was further buttressed by court’s own findings and observations at locus. The defendant though DW1, DW2 and DW3 acknowledged that the plaintiff was using the land and attempted to sale it which  angered defendant’s mother and she chased the plaintiff. The defendant denied PE1 as forged and PE2 as being obtained under duress.

The question  to  ask  here is whether  evidence  by  plaintiff and her  witnesses was cogent  and  truthful as regards this sale  given  the evidential burden  incumbent  upon plaintiff  to prove  the allegations in  the plaint. This is juxataposed against the defendant’s evidence, in proof of his case.  Did defendant demonstrate by evidence that plaintiff was not the owner of the land?  The key witness for defence was DW1.    He however failed to satisfactorily explain why he authored PE.2.  This  document created a nexus between PW.1 and her witnesses, allegations and defendant. There was no evidence to prove that   PE.1 was forged. The defendant had the burden to lead evidence to put PE1 to question and prove that it was forged. Save alleging that PE1 is forged there is nothing on record in proof.   Similarly I do find that   PE2 was good  evidence for  plaintiff to show  that the  defendant  had  made  it  in recognition  of the fact  that  he had  trespassed and  damaged  plaintiff’s houses on the land .  No contrary   evidence is on record to show that PE2 was obtained under duress.  Under sections 101,102 & 103Evidence Act, the defendant ought to have led evidence of such torture at police.

In view of all evidence on record, I am  in agreement  with defendant’s  counsel that  the  learned  trial Magistrate  evaluated  the evidence  properly  and  reached  a right decision. Ground 1 therefore fails.

 Ground 2 and 3 were not argued and hence were moot and not proved.

 Ground 4:  Award of damages

Appellant argues that the learned trial  Magistrate  erred in awarding  damages without  proof of the same.

 I notice that learned trial Magistrate awarded Shs 2,000,000/= as general  damages.

General damages are the direct natural or probable consequence of the act complained of per Strons V Hutchinson (1905) AC 515.

Damages are awarded by discretion of the court. The fundamental principle in assessment of damages that guide courts is the common law doctrine of restituo intergrum, as laid down in the case of Dharanshi v Karsan [1974] EA 41 that:

Court must in all cases award damages with the object of compensating the plaintiff for his or her loss. The court in tort while awarding damages in setting the sum of money to  be given  for  reparation the  court should as nearly  as possible  get  that sum  of  money which  will put  the  party who  has been  injured in the same  position  as he or she  would have  been in  if he or she  had not  sustained the wrong  for which he or she  is now getting  compensation.” (See  The Uganda  Civil Justice Bench Book 1st  Edition page  200- 207).

From the above Principles of the law, to award plaintiff Shs. 2,000,000/= for general damages is reasonable given the circumstances of the case. This is because plaintiff’s houses were demolished, the defendant undertook to repay Shs. 1,900,000/= with interest of 200,000/= which he never paid.

This figure translates to Shs 2,100,000/= which remained as proved but unpaid. The award of 2,000,000/= therefore was even lower than the actual proved amount of loss.

 It was therefore a reasonable award. This court finds no merit in that ground of appeal.

 In final analysis this appeal has failed on all grounds. It’s dismissed with costs.      

  

Henry I. Kawesa

JUDGE

07.07.2017