Court name
High Court of Uganda
Case number
Civil Appeal 86 of 2018
Judgment date
30 October 2020
Title

Lakwo and Anor v Santa (Civil Appeal 86 of 2018) [2020] UGHC 164 (30 October 2020);

Cite this case
[2020] UGHC 164
Short summary:

Civil Procedure cause of Action —the cause of action crystallises when factual events occur constituting an infringement or a threat of infringement of a right or rights, which entitle a person to sue. A cause of action cannot exist without concurrence of a right, a duty, and default. It follows that any person entitled to any right as to any property, may institute a suit against any person denying, or interested in denying, his or her title to the right, and the Court may in its discretion make therein a declaration that he or she is so entitled. One of the principal tests of accrual of a cause of action is the identification of the dates of the essential facts.— Locus standi — is the right to presently enforce a cause of action for the infringement of a legal right belonging to some definite person; a cause of action comprises the operative facts which give rise to Locus standi.—The person with locus standi is the actual person whose legal right has been infringed or is threatened by infringement without justification or sufficient cause as a result of which he or she has suffered the injury. Such person must have “sufficient interest’’ in respect of the subject matter of a suit, which is constituted by having; an adequate interest, not merely a technical one in the subject matter of the suit; the interest must not be too far removed (or remote); the interest must be actual, not abstract or academic; and the interest must be current, not hypothetical.

Land Law—Limitation—sections 5 and 16 of The Limitation Act — actions for recovery of land must be commenced within a period of twelve years from the date of adverse possession time of which begins to run when the defendant secures adverse possession of the land. — Adverse possession — adverse possession is constituted by the actual, open, hostile, and continuous possession of land to the exclusion of its true owner. It will not begin to run until the adverse claimant actually possesses the land in question under colour of title or claim of right.

Coram
Mubiru, J

 

 

 

 

IN THE HIGH COURT OF UGANDA SITTING AT GULU

Reportable

In Civil Appeal No. 0086 of 2018 In the matter between

  1. LAKWO ROY
  2. ODUR WANGLONYO                                               APPELLANTS

And

SANTA SARAH OCHEN                                              RESPONDENTS

Heard: 23 June, 2020.

Delivered: 30 October, 2020.

Civil Procedure cause of Action —the cause of action crystallises when factual events occur constituting an infringement or a threat of infringement of a right or rights, which entitle a person to sue. A cause of action cannot exist without concurrence of a right, a duty, and default. It follows that any person entitled to any right as to any property, may institute a suit against any person denying, or interested in denying, his or her title to the right, and the Court may in its discretion make therein a declaration that he or she is so entitled. One of the principal tests of accrual of a cause of action is the identification of the dates of the essential facts.— Locus standi — is the right to presently enforce a cause of action for the infringement of a legal right belonging to some definite person; a cause of action comprises the operative facts which give rise to Locus standi.—The person with locus standi is the actual person whose legal right has been infringed or is threatened by infringement without justification or sufficient cause as a result of which he or she has suffered the injury. Such person must have “sufficient interest’’ in respect of the subject matter of a suit, which is constituted by having; an adequate interest, not merely a technical one in the subject matter of the suit; the interest must not be too far removed (or remote); the interest must be actual, not abstract or academic; and the interest must be current, not hypothetical.

Land Law—Limitation—sections 5 and 16 of The Limitation Act — actions for recovery of land must be commenced within a period of twelve years from the date of adverse possession time of which begins to run when the defendant secures adverse possession of the land. — Adverse possession — adverse possession is constituted by the actual, open, hostile, and continuous possession of land to the exclusion of its true owner. It will not begin to run until the adverse claimant actually possesses the land in question under colour of title or claim of right.

JUDGMENT

Introduction:

  1. The respondent sued the appellants jointly and severally for a declaration that she is the rightful owner of plot No. 174 measuring approximately 41 metres x 49.7 metres x 34 metres situated at Kirombe Custom Corner village, Kirombe Parish, Layibi Division, in Gulu Municipality, an order of vacant possession, a permanent injunction, general and special damages for trespass to land, interest and costs. Her claim was that by an agreement dated 27th April, 2000 her late husband, Ochen D. Willy purchased the plot in dispute from a one Dr. Kilama J.J.R. who in turn had purchased it from a one Owiny Okee by two agreements dated 8th February, 1997 and 12th February, 1997. The 2nd Appellant had by an agreement dated 25th August, 1998 sold the same land to Dr. Kilama J.J.R. During the year 2002, Owiny Okee had stopped the 1st appellant from cutting down a kibur tree situated on the land for purposes of burning bricks. This prompted the 1st appellant to begin claiming the land as his own. Upon the death of her husband which occurred on 5th February, 2012 the respondent obtained a grant of letters of administration to his estate. Encouraged by his son Opoka James, the 1st appellant began trespassing onto the land with effect from 8th May, 2014. The 1st appellant had since then cut down multiple fruit trees in an orchard that the respondent had planted on the land, hence the claim of shs. 3,800,000/= in special damages and of general damages for trespass to land.
  2. The respondents refuted the appellant’s claim. The 1st respondent contended that he has no interest in the land in dispute since it belongs to his uncle the 2nd respondent, Odur Wanglonyo. He only obtained the 2nd respondent’s permission to use the land. It is Owiny Okee, owner of an adjoining plot of land that is fuelling the dispute by falsely claiming the land in dispute as his own. On his part the 2nd respondent contended that he acquired the land in dispute from his late father. They prayed that the suit be dismissed.

The respondent's evidence in the court below:

  1. P.W.1 Adong Sarah Santa Ocen testified that the 2nd appellant is uncle to the 1st appellant who is her neighbour. The 1st appellant has stopped her from using the land in dispute claiming that it belongs to the 2nd appellant and has uprooted all her fruit trees from the land. Her late husband Dr. Ochen Willy purchased the land on 27th April, 2000 at the price of shs. 2,000,000/= from Dr. Kilama J.J (exhibit P. Ex.1). The latter had purchased the plot from Owiny Okee on 12th May, 1997 (exhibit P. Ex.2) and later on 8th May he had purchased the fruit trees growing on the land (exhibit P. Ex.3). The 2nd appellant sold the same land to Dr. Kilama J.J. 20th October, 1997 (document P. ID.1).
  2. P.W.2 Dr. Kilama J.J. testified that it is him, who sold the land in dispute to the respondent’s late husband Dr. Ochen Willy on 27th April, 2000. He paid both Owiny Okee and the 2nd appellant for the same plot of land because the two had a dispute over the same land. P.W.3 Okech Christopher testified that he was the L.C1 Chairman from 1990 - 2000. The 2nd appellant sold the land in dispute to Dr. Kilama J.J. who later sold it to the respondent’s late husband, Dr. Ochen Willy. He witnessed and stamped the agreements relating to both sales. There were three grass thatched houses and fruit trees on the land.
  3. P.W.4 Oloya Christopher testified that the respondent inherited the land in dispute from her late husband. He witnessed the sale agreement between the late Dr. Ochen Willy and Dr. Kilama J. J. There were fruit trees on the land at the time but they have since been cut down by the 1st appellant. He also demolished the three huts. He excavated the soil and used it to mould bricks. P.W.5 Jackson Lakor testified that he witnessed the sale agreement between the late Dr.Ocen Willy and Dr. Kilama J.J. The respondent inherited the land upon the demise of her husband. There were some grass thatched houses and fruit trees on the land at the time.

The appellant's evidence in the court below:

  1. D.W.1 Lakwo Roy testified that the 2nd appellant is his paternal uncle. The 2nd

appellant inherited the land upon the death of his father. He has since the year 1989 been using the land for growing crops, with the permission of the 2nd appellant. In 1997 a one Okee Owiny purported to sell the land to Dr. Kilama J. J. and that is when the dispute began. The 2nd appellant sued Dr. Kilama J.J. before the L.C.1. A decision was made in favour of the 2nd appellant. Dr. Kilama J.J. did not vacate the land but instead sold it to the respondent’s late husband, Dr. Ochen Willy. They only got to know about the sale when during the year 2000 they realised Dr. Ochen Willy had delivered building material on the land. Owiny Okee had been permitted by the 2nd appellant to reside on the land temporarily and he had consequently constructed a hut which collapsed during the insurgency. The 2nd appellant filed a suit against Owiny Okee and the decision was in favour of the 2nd appellant on 13th May, 2015 (exhibit D. Ex.1). When the 2nd appellant sold the land to Dr. Kilama J.J. (as per document P. ID. 1), he did not do so properly. It is the same land that the 2nd appellant sued Owiny Okee over in 2015 and won the case. The 2nd appellant retained an interest in the land after selling it to Dr. Kilama J.J. because he did not sell it properly. This was because the witness was in possession yet the 2nd appellant never consulted him before the sale. He and a one Opeko James during the year 2014 cut down six trees that were growing on the land.

  1. D.W.2 Evaline Akot testified that she settled in that area in 1971 when she married her husband. Okee Owiny came later and resided on the land in dispute. He had been given a small area to carry out his carpentry work. The land belonged to a one Ajaliyo Too at the time. Okee Owiny purchased that part from Ajaliyo Too. It is after the death of Ajaliyo Too that his cousin, the 2nd appellant, took over the land. A dispute erupted between Okee Owiny and the 2nd appellant. She was not aware of the transaction between the 2nd appellant and Dr. Kilama J.J.

Proceedings at the locus in quo

  1. The trial court visited the locus in quo on 13th July, 2018 where the 2nd appellant indicated that he has lived on the land since 2013 after he inherited it from his father Ajaliyo Too. He never sold the land to Dr. Kilama J.J. (ii) Owiny Okee testified that he acquired the land from a one Aloysius Arem and he later sold it to Dr. Kilama J.J. The 2nd appellant then later sold the same land to Dr. Kilama J.J. The court prepared a sketch map of the land illustrating its observations.

Judgment of the court below:

  1. In her judgment delivered on 1st November, 2018 the trial Magistrate found that the 2nd appellant’s failure to testify in court was suspect yet the respondent presented persons who had witnessed the 2nd appellant’s sale of the land to Dr. Kilama J.J. It is not plausible that there would be a dispute between the 2nd appellant and Owiny Okee over land which both of them sold to Dr. Kilama J.J. The respondent’s purchase could only be challenged for fraud but it was never pleaded nor advanced in evidence. None of the appellants has an interest in the land. In his defence, the 1st appellant admitted having stopped the respondent and his wife from developing the land. He admitted having cut down six trees, making bricks and excavating marram from the land. This constituted an act of trespass. Judgment was entered in favour of the respondent. She was declared the rightful owner of the land in dispute, awarded shs. 3,800,000/= as special damages, general damages of shs. 8,000,000/= an order or vacant possession, and a permanent injunction was issued restraining the appellants from further interference with her possession and use of the land.

The grounds of appeal:

  1. The appellants were dissatisfied with that decision and appealed to this court on the following grounds, namely;
  1. The learned trial Magistrate erred in law and fact when she held that the suit was not time barred.
  2. The learned trial Magistrate erred in law and fact when she held that the respondent had locus standi to bring the suit whereas not.
  3. The learned trial Magistrate erred in law and fact when she shifted the burden of proof of the impugned sale between the 2nd appellant and Dr. Kilama J. J. upon the appellants.
  4. The learned trial Magistrate erred in law and fact when she awarded special and general damages that were not proved.

Arguments of Counsel for the appellants:

  1. In their submissions, counsel for the appellants argued that the respondent testified that it is during the year 2002 when she came to know of the dispute between the 2nd appellant and Owiny Okee that interfered with her claim to the land yet she filed the suit thirteen years later in 2015. The trial court should have found the suit to have been time barred. There has been a protracted dispute over the land between the 2nd appellant and Owiny Okee dating back to 1998. During the year 2014, the High Court decided that the suit between the 2nd appellant and Owiny Okee be heard on its merits by the Magistrate’s Court. Instead the respondent filed a fresh suit fifteen years late. When the 2nd appellant denied having thumb printed the purported agreement of sale of the land to Dr.

Kilama J.J. the burden shifted to the respondent to prove otherwise. The trial court erroneously placed the burden of proving the invalidity of the sale upon the appellants. The court should have subjected that thumb print to expert analysis. Although the respondent pleaded a figure of special damages, she did not adduce evidence to support the claim. There was no evidence to show that the respondent ever too possession of the land hence she could not claim general damages. Since the respondent has taken possession of the land since the year 2019 and has subjected the 1st appellant to a lot of harassment, the 1st appellant should be awarded general damages.

Arguments of Counsel for the respondent:

  1. In response, counsel for the respondent submitted that the 2nd appellant and Owiny Okee each sold the same land to Dr. Kilama J.J. yet they continued with their dispute even after the respondent’s husband had purchased the land on 27th April, 2000. That dispute prevented the respondent’s husband from developing the land until his death on 5th August, 2012. It is after the death of her husband that the 1st appellant prevented the respondent from developing the land. That is when the cause of action arose in favour of the respondent. The suit was not time barred when the respondent filed it three years later, in 2015. The trial court came to the correct conclusion. The respondent obtained a grant of letters of administration on 3rd September, 2012. She was not a party to the suit between the 2nd appellant and Owiny Okee in which the Magistrate’s court was ordered to hear the suit on its merits. That order could not prevent her from filing a suit of her own. The trial Magistrate was not estopped from hearing her suit. The 2nd appellant did not disprove any of the documents evincing his sale of the land to Dr. Kilama J.J. The 2nd appellant never testified in court to challenge their authenticity. Even at the locus in quo he never disputed the thumb mark. The only complaint raised by the 1st appellant was that the 2nd appellant did not consult him during the sale and therefore he did not sell the land properly.
  2. Counsel submitted further that the trial court came to the right conclusion when it found that the 2nd appellant had sold the land to Dr. Kilama J.J. The amount claimed as special damages was pleaded and its basis specified as a valuation by the District Forest Officer of Gulu done on 15th August, 2014. The appellants never refuted that in their pleadings and the court rightly found the amount to be reasonable, hence justifying the award. The fact that the 1st appellant stubbornly prevented the respondent from constructing on the land even after she had ferried construction material thereon justified the amount awarded as general damages.

Duties of a first appellate court:

  1. It is the duty of this court as a first appellate court 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 Father Nanensio Begumisa and three Others v. Eric Tiberaga SCO A 17of 2000\ [2004] KALR 236). In a case of conflicting evidence, the appeal court has to make due allowance for the fact that it has neither seen nor heard the witnesses, it must weigh the conflicting evidence and draw its own inference and conclusions (see Lovinsa Nankya v. Nsibambi [1980] HOB 81).
  2. In its appellate jurisdiction, this court may interfere with a finding of fact if the trial court is shown to have overlooked any material feature in the evidence of a witness or if the balance of probabilities as to the credibility of the witness is inclined against the opinion of the trial court. In particular, this court is not bound necessarily to follow the trial magistrate’s findings of fact if it appears either that he or she has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on demeanour of a witness is inconsistent with the evidence in the case generally.

Grounds one and two.

  1. Grounds one and two of the appeal raise issues of limitation and locus standi. According to sections 5 of The Limitation Act, actions for recovery of land must be commenced within a period of twelve years from the date of adverse possession. Under section 16 of The Limitation Act, time begins to run when the defendant secures adverse possession of the land. Adverse possession is constituted by the actual, open, hostile, and continuous possession of land to the exclusion of its true owner. It will not begin to run until the adverse claimant actually possesses the land in question under colour of title or claim of right. It will begin to run from the time the adverse possessor starts actual, open, hostile, notorious, and exclusive possession.
  2. The cause of action crystallises when factual events occur constituting an infringement or a threat of infringement of a right or rights, which entitle a person to sue. A cause of action cannot exist without concurrence of a right, a duty, and default. A cause of action can arise from an act, a failure to perform a legal obligation, a breach of duty, or a violation or invasion of a right. A cause of action thus arises when that which ought to have been done is not done or that which ought not to have been done is done. A cause of action arises where there has been an invasion of a legal right without justification or sufficient cause. The essential elements of a cause of action are; existence of a legal right in the plaintiff with a corresponding legal duty in the defendant, and a violation or breach of that right or duty with consequential injury or damage to plaintiff for which he or she may maintain an action for appropriate relief or reliefs. It follows that any person entitled to any right as to any property, may institute a suit against any person denying, or interested in denying, his or her title to the right, and the Court may in its discretion make therein a declaration that he or she is so entitled. One of the principal tests of accrual of a cause of action is the identification of the dates of the essential facts.
  3. The dispute between the 2nd appellant and Owiny Okee regarding that land and the litigation that sprung from it did not constitute an act, a failure to perform a legal obligation, a breach of duty, or a violation or invasion of any of the respondent’s claimed rights to the land. The infringement occurred when the 1st appellant stopped her from constructing a building on the land and when thereafter he proceeded to cut down her fruit trees on the land. According to paragraph 4 (e) of the plaint, those acts complained of began on 23rd May, 2014.
  4. A plaint has to be read as a whole to ascertain its true import and construed reasonably to determine whether the claim is time barred. It is not permissible to cull out a sentence or a passage and to read it out of the context, in isolation. It is the substance and not merely the form that has to be looked into. When that is done, it is clear that the respondent pleaded that it was on 23rd May, 2014 that the 1st appellant denied the respondent’ access to the land and began acts of physical interference that were adverse to her interests. She filed the suit within a year thereafter, on 21st April, 2015, well within the period of limitation. Reference in the plaint to the events that occurred in the year 2002 between the 2nd appellant and Owiny Okee provided only relevant contextual information but did not constitute the gist of the respondent’s claim. It is the right and its infringement and not the ground or origin of the right and its infringement that constitute cause of action. In his argument, Counsel for the appellant only sought to take advantage of the clumsy drafting manifest in the plaint.
  5. On the other hand, locus standi is the right to presently enforce a cause of action for the infringement of a legal right belonging to some definite person; a cause of action comprises the operative facts which give rise to Locus standi. For any person to have locus standi, such person must have “sufficient interest” in respect of the subject matter of a suit, which is constituted by having; an adequate interest, not merely a technical one in the subject matter of the suit; the interest must not be too far removed (or remote); the interest must be actual, not abstract or academic; and the interest must be current, not hypothetical.
  6. The person with locus standi is the actual person whose legal right has been infringed or is threatened by infringement without justification or sufficient cause as a result of which he or she has suffered the injury. When a person dies intestate leaving behind assets, the beneficiaries of the estate are the people entitled to receive those assets and that interest may be infringed. The administrator of the estate, often but not always also a beneficiary, is the person in charge of distributing the assets in the estate. The beneficiary of an estate of a deceased person has interest in the proper administration of the estate and does not have to take out a grant of letter of administration in order to file a suit seeking to protect the estate (see Israel Kabwa v. Martin Banoba Musiga, S. C. Civil Appeal No. 52 of 1995; (1996) KALR 253). Upon grant of letters of administration, section 264 of The Succession Act, provides that upon grant of letters of administration, no person other than the person to whom the same has been granted has power to sue or prosecute any suit, or otherwise act as representative of the deceased, until the letters of administration have been recalled or revoked.
  7. In any event, according to section 6 (2) of The Limitation Act, where a deceased person was, on the date of his or her death, in possession of the land in respect of which a suit for its recovery is brought, the right of action is deemed to have accrued on the date of his or her death. It was the testimony of the respondent that upon purchase of the land, the deceased began collecting rent from the three huts situated on the land. That was an act of effective possession of the land. Accordingly, the cause of action is deemed to have accrued upon his death which occurred on 5th August, 2012. The suit having been filed nearly three years thereafter, on 21st April, 2015, was well within the period of limitation. The two ground of appeal accordingly fail.

Ground three.

  1. In the third ground of appeal, it was contended that the trial magistrate had erroneously cast the burden of proof of the impugned sale between the 2nd appellant and Dr. Kilama J.J. upon the appellants. Whereas under section 102 of The Evidence Act the burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue, sections 103 and 104 of the same Act recognise that the burden of proof as to any particular fact may be cast on the person who wishes the Court to believe in its existence. Unlike the substantive burden of proof, the evidential burden (of going forward) is primarily a procedural matter pertaining to the order of presenting evidence based on the fact that “he who asserts must affirm” (see Jovelyn Barugahare v. Attorney General S.C. C.A. No 28 of 1993). The burden of proof is often outcome determinative while the evidential burden (of going forward) is not.
  2. Order 8 rule 3 of The Civil Procedure Rules requires every allegation of fact in the plaint to be denied specifically or by necessary implication. Where that is not done where it is not stated to be not admitted in the pleading of the opposite party, it is taken to be admitted. An allegation of fact admitted expressly or constructively by the opponent, need not be proved (see Pioneer Plastic Containers Ltd v. Commissioner of Customs and Excise [1967] 1 All E R 1053). Similarly, section 28 of The Evidence Act provides that no fact need be proved in any proceeding which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings. However, according to section 28 of The Evidence Act, admissions are not conclusive proof, but may estop.
  3. In paragraph 4 (c) and (g) of the amended plaint, the respondent pleaded that the 2nd appellant had by an agreement dated 20th October, 1997 sold the land to Dr. Kilama J. J. and the last instalment of the purchase price was paid to him on 25th August, 1998. A copy of the agreement was annexed and marked as “D.” In the written statement of defence, the 2nd appellant only made a bare denial of the entire paragraph, opting instead to put the respondent to strict proof of that averment. A bare denial is one which does not clearly and concisely state all material facts upon which the defendant relies for his defence or one that does not state the defence with sufficient particularity to enable the plaintiff to reply thereto. The denial should be definite and unambiguous. A party is expected to expressly deny a fact which is within his or her knowledge and a bare denial is not a specific denial by "necessary implication." A vague or evasive reply by the defendant cannot be considered to be a denial of fact alleged by the plaintiff.
  4. When a defendant denies an allegation of fact stated in the plaint, he or she must not do so evasively but answer the point of substance. Order 6 Rules 3, 8 and 10 of The Civil Procedure Rules require a defendant relying on fraud as a defence to state his or her own version of events if he or she is to put forward a different version of events. This requires the defendant to state, with full particularity, the version of events that he or she will put forward in support of his or her assertion that the plaintiff engaged in fraud. The object of these provisions is to narrow the issues to be tried in the case and to enable either party to know what the real point is to be canvassed and decided. The Civil Procedure Rules do not confer a right on a litigant to remain silent and put the onus on the opposite party to prove. To the contrary, it expressly requires pleadings to be specific and also provides for deemed admission of what is not specifically denied. It was never pleaded in the written statement of defence that the agreement dated 20th October, 1997 was a forgery or that the thumb mark purported to be that of the 2nd appellant was not in fact his. An evasive denial of a fact alleged in the plaint does not suffice; such fact is deemed to be admitted. This Court is of the view that the vague or evasive denial of the 2nd appellant in his written statement of defence regarding the agreement, more particularly the reply to 4 (c) and (g) of the amended plaint, was sufficient to support a finding in favour of the respondent.
  5. Furthermore, during the cross-examination of the respondent and all her witnesses, it was never suggested that the agreement dated 20th October, 1997 was a forgery or that the thumb mark purported to be that of the 2nd appellant on the agreement was not in fact his, yet it is trite that an omission or neglect to challenge the evidence in chief on a material or essential point by cross examination would lead to an inference that the evidence is accepted, subject to its being assailed as inherently incredible or possibly untrue (see Habre International Co. Ltd v. Kasam and others [1999] 1 EA 115;Pioneer Construction Co. Ltd v. British American Tobacco HCCS. No. 209 of 2008; R v. Hart (1932) 23 Cr App R 202 and James Sawoabiri and another v. Uganda, S.C. Criminal Appeal No. 5 of 1990).
  6. The 2nd appellant was unable to testify in court due to illness but when he subsequently did so at the locus in quo, he still made a bare denial. Where there is an evasive denial of material facts in the written statement of defence, the defendant cannot be permitted to lead evidence of positive averments during the trial (see Weinberger v. Inglis (1916-17) All E.R. Rep. 843\ Pinson v. Lloyds & National Provincial Foreign Bank, Ltd. (1941) 2 All E.R. 636 and Narmadashanker Manishanker Joshi v. Uganda Sugar Factory Limited (1968) EACA 6). When a defendant adopts a purely defensive attitude in his pleadings, he or she will not be allowed to conduct his or her case on a different footing. The 2nd appellant could not be expected to lead evidence of forgery when nothing of that sort was stated in his pleadings. In such an event, the admission by failure to traverse specifically itself being proof, no other proof was necessary. There was no burden cast upon the appellants to prove anything and thus this ground of appeal too fails.

Ground four.

  1. In the fourth ground of appeal, the trial court is faulted for having awarded the respondent special and general damages. An appellate Court may not interfere with an award of damages except when it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the trial court proceeded on a wrong principle or that it misapprehended the evidence in some material respect, and so arrived at a figure, which was either inordinately high or low. An appellate court will not interfere with exercise of discretion unless there has been a failure to take into account a material consideration or taking into account an immaterial consideration or an error in principle was made (see Matiya Byabalema and others v. Uganda Transport company (1975) Ltd.,

S.C.C.A. No. 10 of 1993 (unreported) and Twaiga Chemicals Ltd. v. Viola Bamusede t/a Triple B Enterprises. S.C.C.A No. 16 of 2006).

  1. While special damages must be specifically pleaded and strictly proved, they need not be supported by documentary evidence in all cases (see Kyambadde W.M. v. Mpigi District Administration [1983] HCB 44). In paragraph 4 (f) of the amended plaint, the respondent pleaded and particularised the items of loss and the corresponding quantum premised on a valuation done by the District Forest Officer and stated in his report dated 15th August, 2014. Valuation reports provide independent and credible assessment of damage and loss, and its possible cost. They assist the court to determine whether the claim is reasonable or inflated (see Kikoye Mathias Kamya v. Attorney General [1985] HCB 75).
  2. A defendant faced with a claim for special damages should be prepared not only to challenge the plaintiff’s evidence on the facts, but also to put forward any evidence of his or her own which might contradict the plaintiff’s evidence of loss and the quantum. In their joint written statement of defence, the appellants opted to make a bare denial. In his defence, the 1st appellant admitted that together with a one Opeko James they had during the year 2014 cut down six trees that were growing on the land. He also admitted that there were fruit trees growing on the land. Although the District Forest Officer was never called to testify, neither was the appellant cross-examined on the veracity of those figures, yet they do not appear to be inherently incredible or possibly an exaggeration. The court therefore was justified in awarding the amount it did as special damages.
  3. As regards the award of general damages, it has not been shown that the trial court proceeded on a wrong principle or that it misapprehended the evidence in some material respect. The figure arrived at is so inordinately high or low as to represent an entirely erroneous estimate. The court therefore was justified in awarding the amount it did as general damages.

Order:

  1. In the final result, there is no merit in the appeal. It is consequently dismissed. The costs of the appeal and of the court below were awarded to the respondent.

Delivered electronically this 30th day of October, 2020.

Stephen Mubiru

Resident Judge, Gulu Appearances

For the appellants : M/s Ocorobiya Lloyd Advocates.

For the respondent : M/s Ochaya-Achellam Paul and Co. Advocates.