Court name
High Court of Uganda
Case number
Civil Appeal 13 of 2019
Judgment date
27 February 2020

Okello v Lalam (Civil Appeal 13 of 2019) [2020] UGHC 168 (27 February 2020);

Cite this case
[2020] UGHC 168
Short summary:

Civil Procedure — Pleadings — when interpreting pleadings, the court is concerned with the determination as to whether or not the allegations of fact made in the pleadings, excluding conclusory allegations (assertions for which no supporting specific facts or evidence is offered), permit a plausible inference of wrongdoing on the part of the named defendant — if allegations are made in the plaint so that the facts alleged support the prayers asked for, and when the prayers called for are legally justified, then all that is necessary is for the trial Court is to hear evidence which proves the facts and hear submissions of law that the remedies are justified —Framing issues — Issues submitted by one party should not be mechanically adopted by the Court as it is primarily the duty of the court to frame the issues in the case — Issues are framed for arriving at right decision of the case and to pin-point the real and substantial points of difference — if the there are pleadings and sufficient evidence is available on record, the Court can go into a question, even if issue is not framed on that question, and decide that aspect of the matter — Exemplary damages — The primary aims of exemplary damages are; to vindicate the rights of the plaintiff, to vindicate the strength of the law, to punish the defendant and to deter both the defendant and others from engaging in conduct that is extremely malicious or socially harmful.

Land Law — License — A license grants permission to use another's land for the authorised purpose and effectively prevents that act from being a trespass — A license /s a personal privilege held by an individual and cannot be transferred to another individual — The aggrieved party under a licence is restricted to an action in damages against the grantor and cannot compel delivery of the underlying right, whereas a party under a contract creating an interest in land may seek both remedies.

Coram
Mubiru, J

 

 

 

 

IN THE HIGH COURT OF UGANDA SITTING AT GULU

Reportable

Civil Appeal No. 013 of 2019

In the matter between

OKELLO JOHNSON                                            APPELLANT

And

LALAM ANGELLA                                               RESPONDENT

Heard: 15 October, 2019.

Delivered: 27 February, 2020.

Civil Procedure — Pleadings — when interpreting pleadings, the court is concerned with the determination as to whether or not the allegations of fact made in the pleadings, excluding conclusory allegations (assertions for which no supporting specific facts or evidence is offered), permit a plausible inference of wrongdoing on the part of the named defendant — if allegations are made in the plaint so that the facts alleged support the prayers asked for, and when the prayers called for are legally justified, then all that is necessary is for the trial Court is to hear evidence which proves the facts and hear submissions of law that the remedies are justified —Framing issues — Issues submitted by one party should not be mechanically adopted by the Court as it is primarily the duty of the court to frame the issues in the case — Issues are framed for arriving at right decision of the case and to pin-point the real and substantial points of difference — if the there are pleadings and sufficient evidence is available on record, the Court can go into a question, even if issue is not framed on that question, and decide that aspect of the matter — Exemplary damages — The primary aims of exemplary damages are; to vindicate the rights of the plaintiff, to vindicate the strength of the law, to punish the defendant and to deter both the defendant and others from engaging in conduct that is extremely malicious or socially harmful.

Land Law — License — A license grants permission to use another's land for the authorised purpose and effectively prevents that act from being a trespass — A license /s a personal privilege held by an individual and cannot be transferred to another individual — The aggrieved party under a licence is restricted to an action in damages against the grantor and cannot compel delivery of the underlying right, whereas a party under a contract creating an interest in land may seek both remedies.

JUDGMENT

STEPHEN MUBIRU, J.

Introduction:

  1. The respondent sued the appellant seeking a declaration of ownership of land measuring 190 metres by 25 metres in length (approximately three acres) situated at Gangdyang Ward, Pandwong Parish, Kitgum Town Council, exemplary damages for trespass to land, mesne profits, a permanent injunction restraining him from further acts of trespass to that land, interest and the costs of the suit. The respondent's case was that the land in dispute belonged to her late father Kezekia Okech which he occupied together with the respondent until his death. Following the death of her father, the respondent continued to enjoy quiet possession of the land until the year 2007 when the appellant together with two together people requested her for permission to grow crops on the land for one season. At the end of that season, the two others vacated the land but the appellant refused to do so. He instead in the year 2008 began claiming ownership of the land. He thereafter planted trees and groundnuts on the land.
  2. The appellant denied the respondent's claim. He averred that he and his father own about 70 acres of land adjacent to that claimed by the respondent. The land they occupy was first owned by his great grandfather Lufamoi in 1929 byway of a licence from the colonial government. Upon his demise in 1972, it was inherited by his grandfather Aldofore Odur and when he died in the year 2006 it was inherited by the appellant's father Okello Mathew who together with the appellant are in current occupation of the land. Before the death of Aldofore Odur, he had during the year 1968 permitted a one Stephano Lamony to use two acres of that land for growing tobacco. It is during the year 1976 that the Idi Amin Government took over part of the land by decree, for growing cotton. The government operated thereon a demonstration cotton garden. It is during that period that the respondent's late father Kezekia Okech took advantage and began ploughing part of the land until the year 1980 when it passed to the Prisons Department. During the years 1996 - 1998, an Internally Displaced People's camp was established on the land. During the year 2003, the appellant, his father and five other persons re-claimed the land and in the year 2006 were able to regain possession and have lived there to-date. It is during the year 2006 that the respondent re-gained possession of part of the land with permission of the Area Land Committee and has since refused to vacate despite the appellant's protests.

The respondent’s evidence in the court below:

  1. P.W.1 Lallam Angela testified that she has lived on the land in dispute since her birth. She married in 1965 but returned home to live on the land during Idi Amin's regime following the murder of her husband. The appellant and his father lived on land across the road to Kitgum. In 2007 the appellant together with two other people requested her for permission to grow crops on the land for one season. At the end of that season, the two others vacated the land but the appellant refused to do so. He instead in the year 2008 began claiming ownership of the land. He thereafter planted trees and groundnuts on the land.
  2. P.W.2 Nyeko Alfred testified that he is an immediate neighbour to the land in dispute and has since the 1960s known the land in dispute to have belonged to the respondent's late father Kezekia Okech. During the year 2007 there was an exercise of reversion of land that had been taken over by government, to its original owners and that is how the respondent regained possession. The appellant's parents have never lived on the land. P.W.3 Acan Gertrude testified that she is one of the neighbours to the land in dispute and has since the 1960s known the land in dispute to have belonged to the respondent's late father Kezekia Okech.

The appellant has since taken over possession of the land and has planted trees thereon. Lufamoi and his descendants have never lived on the land in dispute but on land across the road.

  1. P.W.4 Amony Rose testified that she is the respondent's daughter and together with the respondent she has lived on the land in dispute her entire life. In 2007 the appellant together with two other people requested the respondent for permission to grow crops on the land for one season. At the end of that season, the two others vacated the land but the appellant refused to do so. He instead in the year 2008 began claiming ownership of the land. He thereafter planted trees and groundnuts on the land
  2. D.W.1 Okello Johnson testified that the approximately three acres in dispute form part of the 72 acres that belonged to his late father Okello Mathew. He was born and grew up on the land in dispute. In the year 2006 the land was given back to the original owners. During the year 2006 he never requested the respondent for permission to grow groundnuts on the land in dispute. The neighbour to the North of the land in dispute is Ochola James and to the East is Okello Mathew. He does not know the rest of the neighbours.

The appellant’s evidence in the court below:

  1. D.W.2 Okello Mathew testified that the approximately three acres in dispute form part of the 72 acres that belong to him. The land was first owned by his grandfather Lufamoi in 1929 by way of a licence from the colonial government. Upon his demise in 1972, it was inherited by his father Aldofore Odur and when he died in the year 2006 he inherited it. He instructed his nephew, the appellant, to use the land in dispute and to plant eucalyptus trees in the middle of it. He lives to the East of the land, across the road to Acholibur. To the North it is bordered by a one Too Olama, to the West by Kinyera Augustine and to the South by Ociti Walter alias Lukam. The respondent has since the year 2006 been occupying the land in dispute against his will. The respondent's land is at Bardege village, Pandwong Parish, Kitgum Town Council.
  2. D.W.3 Ochola James testified that he is a brother of D.W.2. Multiple families, including that of Lufamoi, had since 1929 lived on the land in dispute. The land in dispute forms part of that taken over by Idi Amin's government in 1979. The respondent occupies the land in dispute. She was using it during the ear of Idi Amin for growing cotton. Later it was taken over by the Prisons Department. It was returned to the original owners in the year 2006. D.W.2 Okello Mathew lives about 500 meters away to the East of the land in dispute but it forms part of his land.
  3. The court then visited the locus in quo on 16th May, 2018 where it observed that to the North of the land in dispute is the respondent's garden in which she has planted pigeon peas and sorghum. The court further recorded evidence from the two parties, then; (i) P.W.3 Achan Gertrude; (ii) D.W.3 Ochola James; (iii) Abwo Lawoko Okol. The court prepared a sketch map of the land in dispute which illustrates that the land measures approximately 110 - 120 metres by 30 - 35 metres. To the North and South are gardens of the respondent. To its West is land belonging to the late Nyeko Charles while to the East is Veterino Oyot and the road from Acholibur to Kitgum.

Judgment of the court below:

  1. In his judgment delivered on 16th January, 2019 the trial Magistrate found that by virtue of The Land Reform Decree of 1975, the appellant could not claim land in an urban centre by customary tenure. The respondent's evidence showed that she and her father were in occupation before the appellant was permitted to grow crops on it for one season. The visit to the locus in quo revealed that the land to the North and south of the part in dispute belongs to the respondent. The description of the land given by the appellant did not correspond to the observations of court made at the locus in quo regarding the adjacent pieces of land. The appellant’s evidence regarding persons owning land that neighbours that in dispute was wrought with major contradictions and had to be rejected. The appellant became a trespasser onto the land when he refused to vacate at the end of the season, choosing instead to claim the land as his own. The appellant had continued to occupy the land and planted acacia trees on it. This act was oppressive to the elderly respondent and justified an award of exemplary damages. The respondent was declared the rightful owner of the land. She was awarded shs. 4,000,000/= as exemplary damages and the costs of the suit. A permanent injunction was issued restraining the appellant from committing further acts of trespass on the respondent's land.

The grounds of appeal:

  1. The appellant was dissatisfied with the decision and appealed to this court on the following grounds, namely;
  1. The trial Magistrate erred in law and fact when he held that the appellant is a trespasser on the land in dispute, whereas the respondent did not plead nor prove trespass.
  2. The trial Magistrate erred in law and fact in holding that the respondent is the lawful owner of the land in dispute, whereas the appellant produced evidence to show that the land belongs to another person and is at a different location.
  3. The trial Magistrate erred in law and fact when he ignored the evidence of the appellant found at the locus in quo, thereby descending into the arena and soliciting evidence that supports the respondent's case, hence occasioning a miscarriage of justice to the appellant.
  4. The trial Magistrate erred in law and fact in awarding both general and exemplary damages of shs. 4,000,000/= respectively, which was not proved and is excessive in the circumstances.

Submissions of counsel for the respondent:

  1. Counsel for the appellant did not file submissions. Counsel of the respondent argued that the arrangement between the appellant and the respondent during the year 2007 was for the former to plant groundnuts on the land in dispute for only one season. The appellant thereafter forcefully returned to the land during the year 2008 and began planting trees and installing bee hives. The trial magistrate was correct when he found that the appellant was a trespasser. At the locus in quo, the trial magistrate misdirected himself when he recorded evidence from the L.C.1 Chairman who had not testified in court but he did not rely on that evidence when making the decision. While the respondent’s evidence was consistent with observations made at the locus in quo, that of the appellant did not. The trial magistrate did not make and awarded of damages, hence the fourth ground of appeal is misconceived. The award of exemplary damages was justified by the nature of the trespass committed.

Duties of the 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 re­appraisal before coming to its own conclusion (see Father Nanensio Begumisa and three Others v. Eric Tiberaga SCCA 17of2000\ [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] HCB 81).
  2. In exercise of 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.

Third ground of appeal: proceedings at the locus in quo.

  1. In the third ground of appeal, it is contended that the trial magistrate erred in law and fact when it ignored the evidence of the appellant found at the locus in quo, thereby descending into the arena and soliciting evidence that supports the respondent's case. The trial record does not support this contention save to the extent that when the court visited the locus in quo, it recorded evidence from one person who had not testified in court. The purpose of visiting the locus in quo is to check on the evidence by the witnesses, and not to fill gaps in their evidence for them or lest Court may run the risk of turning itself a witness in the case (see Fernandes v. Noroniha [1969] EA 506, De Souza v. Uganda [1967] EA 784, Yeseri Waibl v. Edisa Byandala [1982] HCB 28 and Nsibambi v. Nankya [1980] HCB 81). Therefore, the trial court misdirected itself when it recorded and relied on the evidence of the Chairperson, Abwo Lawoko Okol.
  2. That notwithstanding, according to section 166 of The Evidence Act, the improper admission or rejection of evidence is not to be ground of itself for a new trial, or reversal of any decision in any case, if it appears to the court before which the objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that, if the rejected evidence had been received, it ought not to have varied the decision. I have therefore decided to disregard the evidence of the "independent witness," since I am of the opinion that there was sufficient evidence on basis of which a proper decision could be reached, independently of the evidence of those that witness.
  3. Furthermore, according to section 70 of The Civil Procedure Act, no decree may be reversed or modified for error, defect or irregularity in the proceedings, not affecting the merits of the case or the jurisdiction of the court. Before this court can set aside the judgment on that account, it must therefore be demonstrated that the irregularity occasioned a miscarriage of justice. An appellate court will set aside a judgment, or order a new trial, on the ground of a misdirection, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, only if the court is of the opinion that the error complained of has resulted in a miscarriage of justice.
  4. A miscarriage of justice occurs when it is reasonably probable that a result more favourable to the party appealing would have been reached in the absence of the error. The court must examine the entire record, including the evidence, before setting aside the judgment or directing a new trial. Having done so, I have decided to disregard the evidence of the additional witness, since I am of the opinion that there was sufficient evidence to guide the proper decision of this case, independently of the evidence of that witness. This ground of appeal fails.

The first and second grounds of appeal; location of the land and proof of trespass.

  1. In the first and second grounds of appeal, it is contended that trespass to land was neither pleaded nor proved, and that the land in dispute is at a different location and belongs to another person. Regarding the absence of a specific reference in the plaint to trespass as the cause of action, when interpreting pleadings, the court is concerned with the determination as to whether or not the allegations of fact made in the pleadings, excluding conclusory allegations (assertions for which no supporting specific facts or evidence is offered), permit a plausible inference of wrongdoing on the part of the named defendant. A cause of action will be found to have been disclosed by the plaint when the factual allegations sufficient to suggest that a right was violated, that entitles him or her to redress. The plain meaning of trespass as per Halsbury’s Laws of England Vol. 38 page 734 is: - “(a) is a wrongful

 

act (b), done in disturbance of the possession of property of another .... against his will.”

  1. In her plaint, the respondent pleaded in paragraph 4 (a) to (e) that the land in dispute originally belonged to her father before she inherited it. She let it out to the appellant for one season but instead he forcefully took it over. These were sufficient factual allegations which, if true, would tend to support the ultimate conclusion that the appellant was a trespasser on the land. The Court of Appeal decided in Departed Asians Property Custodian Board v. Issa Bukenya, S.C. Civil Appeal No.26 of 1992, that if allegations are made in the plaint so that the facts alleged support the prayers asked for, and when the prayers called for are legally justified, then all that is necessary is for the trial Court is to hear evidence which proves the facts and hear submissions of law that the remedies are justified. It is the law that no suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action and is so weak as to be beyond redemption and incurable by amendment (see D.T. Dobie and Company Ltd. v. Muchina and another [1982] KLR 1).

[21 ] Furthermore, according to Order 15 rule 3 of The Civil Procedure Rules, the court may frame issues from all or any of the following materials; - (a) allegations made on oath by the parties, or by any persons present on their behalf, or made by the advocates of the parties; (b) allegations made in the pleadings or in answers to interrogatories delivered in the suit; and (c) the contents of documents produced by either party. The duty in regard to framing of the issue is of the Court which it has to discharge because it has to try the suit and it has to give notice to parties to lead evidence with reference to the issues framed. To form a distinct issue, a material proposition must be affirmed by one party and denied by other. The object of an issue is to bring down the evidence, arguments and decision to a particular question so that there may be no doubt as to what the dispute is. Issues are framed for arriving at right decision of the case and to pin-point the real and substantial points of difference.

  1. Issues submitted by one party should not be mechanically adopted by the Court as it is primarily the duty of the court to frame the issues in the case. Order 15 rule 3 of The Civil Procedure Rules empowers the Court to amend issues or frame additional issues at any stage of proceedings and it does not contemplate that the power must be exercised when application is made on the other hand it saddles on the Court a duty to exercise power suo motu if it is necessary "for determining the matters in controversy between the parties." The Court may also, at any time before passing a decree, strike out any issues that appear to it to be wrongly framed or introduced. The Court can amend or frame additional issues before passing of any decree at any point of time.
  2. It follows that although an issue may not have been raised during the hearing, where both parties had a full and fair opportunity to litigate the issue, after full contest in which both parties had a fair opportunity to prove their respective case, it can actually be determined and necessarily decided by the court. When issues not raised by the pleadings are tried by express or implied consent of the parties, they are treated in all respects as if they had been raised in the pleadings.
  3. Matters in issue are classified into two kinds; matters directly and substantially in issue and matters incidentally and collaterally in issue. The matter which is collaterally and incidentally in issue is the one from which no relief is claimed while that directly and substantially in issue is one whose determination would affect the decision of the suit. With regard to mandatory issues like limitation and jurisdiction, if based only on pure law and not on facts and not being mixed questions of law and facts, the Court may proceed to decide the same under the law after giving a hearing to both the parties.
  4. Once an issue concerns the actual facts giving rise to the claim, and it was in fact actually litigated and was necessary to a final judgment on the merits, the court is entitled to make a finding on it whether or not the parties raised it as one of the issues for the court's determination. It is thus clear that if the there are pleadings and sufficient evidence is available on record, the Court can go into a question, even if issue is not framed on that question, and decide that aspect of the matter. A judgment may be pronounced not only as to all matters that were in fact formally put in issue by the parties, but also on those matters that were offered and received to sustain or defeat the claim, where it is necessary to the court's judgment, in order to ensure the reliability, conclusiveness, completeness and fairness of a judgment. This principle serves mainly the public policy of reducing litigation. Unfairness and waste of judicial resources would otherwise flow from allowing repeated litigation of the same subject matter as long as plaintiff is able to locate new issues to be litigated.
  5. Since no right or obligation of a party is determined by the decision of court to frame additional issues such a decision cannot be faulted as an error on procedure where the additional issues framed were intended to enable court determine the real matters in controversy between the parties, provided they are of such a nature as in the circumstances of the case did not require giving the parties an opportunity to adduce evidence in respect of the said additional issue.
  6. It was the respondent’s case that the appellant was a licensee on the land for only one season. A license grants permission to use another's land for the authorised purpose and effectively prevents that act from being a trespass (see Head v. Hartley, 42 Ch. D. 461 and Clifford v. Neil, (1896) 12App. Div. 17). Unlike a lease, a licence is merely a right to occupy, it does not create an estate in land, meaning it is not binding against third parties (see Ashburn Anstalt v. Arnold [1989] Ch. 1 and Habermann v. Koehler and another [2000] All ER (D) 1739). It simply prevents the licensee from being a trespasser in law. A license is not appurtenant to any to adjoining real estate, since it is a personal right, not a property right. A license is a personal privilege held by an individual and cannot be transferred to another individual (see Beckett v. City of Paris Dry Goods Co. (1939) 14 C2d 633). It creates a limited-use privilege in the licensee and therefore necessarily curtails to that extent the owner’s right to exclude. It leaves all other residual powers of ownership firmly in the owner’s sole possession.
  7. There being no right to possession, a license unlike a lease, permits only the nonexclusive use of the property by the licensee, and the owner remains in possession and control of the land. A license therefore is a personal, revocable, and un-assignable permission to do one or more acts on the land of another without possessing any interest therein. It creates no duties and obligations upon the persons making the grant and is, therefore, revocable except in certain circumstances. If permission is given only a right to use the land in particular way or under certain terms while it remains in the possession and control of the owner thereof, it will be a licence. The legal possession, thereof, continues to be with the owner of the property, but the licensee is permitted to make use of the land for a particular purpose. But for the permission, his or her occupation would be unlawful. It does not create in his or her favour any estate or interest in the land.
  8. A contractual license provides an express or implied permission to enter or use land belonging to another in exchange for some consideration (see Horrocks v. Forray [1976] 1 WLR 230). The assignability and revocability of contractual licenses normally depend on the terms of the contract. A contractual licence may be revocable or irrevocable in accordance with the terms of the contract between the parties, and their intentions when signing it. Alternatively, it may be irrevocable on the basis of proprietary estoppel, i.e. where the licensee has spent money on improving the land because he or she was given to understand he or she would be able to remain in the property for longer (see Taylors Fashions Ltd v. Liverpool Victoria Trustees Ltd [1982] QB 133\ Thorner v. Major [2009] UKHL 18\ Crabb v. Arun DC [1975] EWCA Civ 7 and Campbell v. Griffin [2001] EWCA Civ 990). On the other hand, when a licensee makes substantial expenditures, relying on a property owner’s grant of a license for a use that appears to require a long duration, the license may be considered "irrevocable" (see Cooke v. Ramponi (1952) 38 C2d 282 and Noronha v. Stewart (1988) 199 CA3d 485).
  9. By virtue of paragraph 5 (b) of the appellant's written statement of defence and his testimony, it is clear that as far back as 1929, there was no right to occupy the land in issue without a licence, hence the temporary occupation permit given to his great grandfather Lufamoi (annexure "A" to the written statement of defence, dated 30th March, 1929). The implication is that the land in issue was at the time vested in the colonial government as Crown Land, hence the requirement of a temporary occupation permit.

[31 ]     The Public Lands Act, 1969 renamed what was formally Crown land and vested in

the Uganda Land Commission. Under section 25 of the Act, the Uganda Land Commission was empowered to make a grant in freehold or leasehold of public land. The marginal note to section 15 provided for "“leases to urban authorities” and stated that; "where by operation of this Act either at the commencement thereof or any time thereafter land which is situated in an area over which an urban authority exercises jurisdiction is vested in or transferred to a land board shall be the responsibility of the land board.

  1. Section 23 (2) of the Act empowered the Commission to grant to Urban Authorities of designated areas, such leases and on such terms and conditions as the Minister would direct and any lease so granted would be deemed to be a statutory lease. Subsequently, under section 1 of The Land Reform Decree of 1975 all land in Uganda was declared public land to be administered by the Uganda Land Commission in accordance with The Public Lands Act of 1969, subject to such modification as were necessary to bring the Act into conformity with the Decree. As an Urban Authority, Kitgum Town Council could only derive the capacity to manage land from its status as a controlling authority, presupposing therefore that it had been granted a statutory lease over public land within its area of jurisdiction, by the Uganda Land Commission.
  2. While a licence can authorise substantially the same use of land as a lease, easement, or other real interest, the legal effect and practical result can be much different. A licence cannot be enforced in the same manner as an agreement creating an interest in land. As holder of a mere contractual right, the licensee has no recourse to the land law remedy of “specific performance” i.e. the ability to compel performance of the contract. The aggrieved party under a licence is restricted to an action in damages against the grantor and cannot compel delivery of the underlying right, whereas a party under a contract creating an interest in land may seek both remedies. The licence governs only the specified period of the stay, and any re-entry after that period without further permission may constitute trespass. Once the licence has been revoked, if the licensee leaves the property and then re-enters, the re-entry constitutes trespass.
  3. "Mere possession is sufficient, against a person invading that possession without himself having any title whatever as a mere stranger; that is to say, it is sufficient as against a wrongdoer. The slightest amount of possession would be sufficient to entitle the person who is so in possession, or claims under those who have been or are in such possession, to recover as against a mere trespasser" (see Bristow v. Cormican (1878), 3 App. Cas. 641). It is trite that "possession is good against all the world except the person who can show a good title" (see Asher v. Whitlock (1865) LR 1 QB 1, per Cockburn CJ at 5 and Fowley Marine v. Gafford [1968] 1 All ER 979). Possession raises the presumption of ownership in favour of the person in possession. Possession may thus only be terminated by a person with better title to the land. The evidence established that the respondent was in possession of the land by the year 2007 when she let it out to the appellant.
  4. To be entitled to evict the appellant from the land, the respondent had to prove a better title to the land. If someone is in possession and is sued for recovery of that possession, the plaintiff must show that he or she has a better title. If the plaintiff does not succeed in proving title, the one in possession gets to keep the property, even if a third party has a better claim than either of them (see Ocean Estates Ltd v. Pinder [1969] 2 AC 19). Where questions of title to land arise in litigation, the court is concerned only with the relative strengths of the titles proved by the rival claimants. The plaintiff must succeed by the strength of his or her own title and not by the weakness of the defendant's. The respondent proved a better title. These two grounds of appeal therefore fail.

The fourth ground of appeal; award of general and exemplary damages.

  1. In the fourth ground of appeal, it is contended that the trial Magistrate erred in law and fact in awarding both general and exemplary damages of shs. 4,000,000/= respectively, which was not proved and is excessive in the circumstances. 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).
  2. Exemplary damages are in the category of non-compensatory damages. The primary aims of exemplary damages are; to vindicate the rights of the plaintiff, to vindicate the strength of the law, to punish the defendant and to deter both the defendant and others from engaging in conduct that is extremely malicious or socially harmful, in Lord Devlin's own words "to teach a wrongdoer that tort does not pay" (see Rookes v. Barnard [1964] 1 All ER 367 at p.411). An award of exemplary damages mainly aims to punish the wrongdoer for his or her outrageous conduct, to deter him or her and others from any such conduct in the future, and to mark the court's detestation and disapproval of that conduct has the additional, but also has the incidental effect of providing compensation and satisfaction to the plaintiff.
  3. Exemplary damages are recoverable only where the defendant has been guilty of oppression, fraud, or malice, express or implied and whether there has been such conduct is always a question for the trial court to decide upon the evidence in the particular case. Whereas compensatory and aggravated damages are related to the injury or loss suffered by the plaintiff, exemplary damages are made with reference to the behaviour of the defendant alone, thereby upholding an important public interest or, possibly, vindicating constitutional rights.
  4. It is clear that the purpose of exemplary damages should be confined to punishing a defendant effectively and deterring the defendant and others from engaging in similar conduct in the future. An award that has a deterrent purpose will address the possible future conduct of the defendant and of others. The quantum of damages then must be the amount necessary to deter that particular defendant and should be made with reference to the wealth of the defendant. It must therefore not exceed the amount necessary to do this in all the circumstances of the case. I have not found the award in this case to be so inordinately high or low as to represent an entirely erroneous estimate. It has not been 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. I have therefore not found any basis for interference with the award. This ground of appeal too fails.

Order:

  1. In the final result, three is no merit in the appeal. It is accordingly dismissed with the costs of the suit and of the appeal to the respondent.

Stephen Mubiru

Resident Judge, Gulu Appearances

For the appellant

For the respondent : M/s Owor-Abuga Co. Advocates.