THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT FORT PORTAL
HCT – 01 – CV – CS- 0016 OF 2003
(ARISING FROM HCT-01-CV-CS- 0001 OF 2000)
EMMANUEL BASALIZA ..................................... APPELLANT
MUJWISA CHRIS .............................................. RESPONDENT
BEFORE: HON. JUSTICE LAMECK N. MUKASA
The Appellant, Emmanuel Basaliza was the plaintiff in Fort Portal Chief Magistrates Court Civil Suit No. MFP 1 of 2000. The Appellant brought the said original suit against the Respondent, Chris Mujwisa, to recover general damages, compensation of shs3,3000,000/= interest and costs.
The appellant’s cause of action was founded in trespass. The parties had neighbouring farms separated by a barbed wire fence. The appellant’s claim was that in the month of July1998 the Respondent’s cows strayed into the Appellant’s banana plantation trespassing thereon and destroyed banana plants valued by a field extension officer at shs1,200,000/= Also in the month of November 1999, the respondent’s cows trespassed upon the appellant’s farm and pasture, destroying thereon pasture and banana plants and broke a wooden bridge causing damage all valued at shs1,200,000/= On a third occasion, also around November 1999 the Respondent’s animals trespassed and destroyed the Appellant’s banana plants valued at shs600,000. Also on 10th December 1999 the Respondent’s animals trespassed into the Appellant’s property and on this occasion the Respondent’s bull illegally mounted the Appellant’s pregnant heifer which aborted as a result. The value of the would be calf was put at Shs300,000/=.
In his defence the Respondent denied that his cows had ever strayed onto the Appellant’s banana plantation, denied that his bull had illegally mounted the Appellant’s pregnant heifer and contended that no heifer of the Appellant had aborted and further that the Appellant had sent his workers to the Respondent’s farm who drove out his cows and took them to the Appellant’s farm and detained them until the area L.C. I chairman intervened and they were released.
In his judgment the learned Chief Magistrate found that there was no proved trespass on all occasions and dismissed the Appellant’s claim with costs. The Appellant was dissatisfied with the judgment thus this appeal on the ground that:-
“The learned trial Chief Magistrate erred in law and fact when he failed to properly evaluate the evidence before him and came to the wrong conclusion.”
The Memorandum of Appeal in respect to this appeal was filed together with an uncertified photocopy of the proceedings of the lower court. On 13th November 2003 when the appeal came up for hearing Mr. Nyamutale appearing for the Respondent, communicated to court that he had agreed with Mr. Birungi counsel for the Appellant, that they be allowed to file written submissions, he further requested to be served with a certified copy of the proceedings of the lower court. The application to file written submission was granted. A certified copy to the proceedings was filed and is on court record.
In his submissions Mr. Nyamutale raised a preliminary point of law which I will deal with first. He contended that the record of Appeal was defective because it was not certified and that there was no certificate of correctness dully given by the Chief Magistrate as he had not signed and sealed it with the Court Seal. He referred to Yoana Yakuze V/S Victoria Nakalembe (1988 – 1990) HCB 138.
In that case the memorandum of appeal did not bear any court seal. Court held that it could not therefore be ascertained when it was presented to court. Consequently Court held that it did not appear as a court document. I have carefully studied the papers filed in the instant appeal. The memorandum of Appeal was filed on 24th September 2003. It was stamped with the stamp of the “Deputy Registrar High Court of Uganda Western Circuit”. The Memorandum of Appeal was filed together with a photocopy of the proceedings of the lower court. The proceedings had not been certified by the lower court however, another copy of the proceedings of the lower Court and judgment were filed duly certified on 13th November 2003 by the Chief Magistrate under the court stamp. I therefore find no merit in the preliminary point of law raised by the Respondent. It is accordingly overruled and I now proceed to handle the appeal on its merit.
In his submissions Counsel for the Appellant stated that the trial Magistrate did not properly address the issue of trespass, the subject of the main suit raised by the Appellant. He pointed out that PW1 John Kasaija had directly witnessed the trespass of the respondent’s cattle on the appellant’s banana plantation as per the July 1998 incident. That as to the November 1999 incident PW3 Johnson Kaganda had recognized the invading cows as those of the respondent. That the cows first destroyed the appellant’s banana plantations, drunk water in the water trough and ate salt. That a bull had mounted the Appellant’s cow which was pregnant. Counsel contended that had the learned Chief Magistrate properly considered and evaluated the above evidence he would had found that the appellant had proved his case on the balance of probabilities.
This being a first appeal, it’s the duty of this Court to review and re-evaluate the record of evidence adduced before the trial Court as a whole giving it fresh and exhaustive scrutiny and then drawn its own conclusion of fact and determine whether on the evidence the decision of the trial court should stand. See D.R. Pandya V/S R (1957) EA 336. The first Appellant Court must do so against the background that if the conclusion of the trial court had been arrived at on conflicting testimony after seeing and hearing witnesses, the appellant court in arriving at a decision should bear in mind that it has not enjoyed this opportunity and that the view of the trail court as to where credibility lies is entitled to greater weight. However, there may be other circumstances quite apart from manner and demenour which may show whether a statement is credible or not which may warrant an appellant court in deferring from a trial court even on a question of fact turning on the credibility of witnesses whom the appellant court has not seen. See Selle & Anor V/S Associated Motor Boat Company Ltd & Other (1968) EA 123.
In his judgment the learned trial Chief Magistrate first considered the alleged acts of trespass committed in July 1998. He then considered the trespass of 1999 wherein he identified the following acts of trespass:-
(a) The coming of cows of the defendant to the plaintiff’s farm.
(b) The damaging of the bridge.
(c) The trespass on the plaintiff banana plantation and eating of the grass/pasture.
(d) The defendant’s bull mounting the plaintiff’s cow and the cow’s abortion.
While considering the trespass allegedly committed in 1998 the learned trial Chief Magistrate considered contradictions in the evidence of the plaintiff and that of his witness and as result he did not believe their evidence. It was an agreed fact from the evidence adduced by both parties that the two owned farms which at one point shared a common boundary. Further that there was a barbed wire fence between the two farms at that point. They both kept cattle on their respective farms.
Regarding the incident which was alleged to have taken place in July 1998, PW1 John Kasaija stated that while at work in the appellant’s farm at around 11:00 a.m. about 20 to 25 cows of the respondent entered into the appellant’s farm and destroyed the appellant’s banana plantation by eating the banana stems. Both the appellant and this witness stated that the incident was reported to the L.C. I officials who came in to assess the damage. Both named Bernard Rwaheru as being among the L.C. Official who came over. However, there were contractions as to whether he was the chairman of the area or not at the material time. While being cross-examined Leonard Rwaheru denied going to the appellant’s farm in July 1998. John Kasaija also named Kaganda among the people who had come in to see the damage but in his testimony the said Johnson Kaganda did not talk about the July 1998 incident. The Assistant Veterinary Officer, Michael Businge testified that on 27th July 1998 he was called by the appellant to carry out an assessment of the appellant’s crops destroyed by animals. This witness came in after the event he therefore did not witness the trespass being committed. That leaves only John Kasaija who testified that he had actually seen the Respondent’s cows trespass on the Appellant’s plantation and destroying the banana plantation. However while being cross-examined this witness contradicted himself when he stated:
“We do not say in the farm after leading our cows, we go away. I was not present when the cows trespassed upon the banana plantation.”
Also when being re-examined he stated:
“I was not present when the defendant’s cows trespassed on the plaintiff’s farm in July 1998.”
The above were contradictions in the evidence of a key witness which should not be disregarded as they went to the root cause of action. I accordingly find that the learned chief Magistrate properly evaluated the evidence before him and came to the right conclusion that the appellant had failed on a balance of probabilities to prove the alleged act of trespass committed by the respondent’s cows in July 1998.
With regard to the trespass stated to have been committed in November 1999 the record shows that the evidence adduced by both sides indicated that about 25 to 30 cows of the Respondent including a bull entered the appellant’s farm. The issue is how the Respondent’s cattle gained entry into the Appellant’s farm.
John Kaganda stated that one day in the month of November 1999 at around 9.00 a.m. he met visiting cows mixed with the Appellant’s cows drinking water. The appellant’s cows were of the exotic Fresian type while the visiting cows were a mixture of the local breed and cross breed. The visiting cows numbered about 28 to 30. According to him the visiting cows had gained entrance by breaking into the barbed wire fence. He recognized the visiting cows as those of the Respondent because on several occasions the same cows would trespass onto the appellant’s farm and the witness would drive them back. The witness reported to the herdsman Kasaija and to the appellant. This witness did not see the cows enter the farm. He found the cows while they had already trespassed the banana plantation and crossed the bridge.
John Kasaija testified that on the material day after milking the cows he went home. Shortly after he was called by Tadeo who informed the witness that strange cows had entered the appellant’s farm. The witness saw the cows which had mixed with the appellant’s cows. He separated the two herds. Took the appellants herd home and left the invading herd in the farm. This witness also did not see how the invading herd had entered the farm. However, he stated that the cows had broken through the Respondent’s fence and entered the appellant’s farm.
The defence version is that it was the appellant’s workmen who had cut his fence and drove his cattle from his farm into the appellant’s farm. The witness Irene Kabanyaha stated that she would occasionally visit the Respondent at his farm and stay for about two or three months. That at the material time on 26th November 1999 while cutting trees for a broom in the defendant’s farm at around 9.00 a.m. or 10.00 a.m. she was attracted by noise coming from the side of the Respondent’s farm where cattle was grazing. She moved towards the noise and saw strange people driving the Respondent’s cattle and crossing into the Appellant’s farm. That he over heard the appellant thanking those people for having brought in the cattle. This witness informed Yakobo Kasaija, the Respondent’s herdsman, who went after the cattle. Yakobo Kasaija testified that he was called by his mother and when he came he found that cattle had been taken away. That he followed the cattle which he found in the appellants farm. The witness stated that he had found that the Respondent’s barbed wire had been broken. The witness contradicted himself when said he had not seen the appellant’s workers taking the cattle to the appellant’s farm, but later stated that he had seen he appellant, Lakwena, Kalinda and Kaganda and other people driving the Respondents cows from the Respondent’s farm and he followed them.
Yakobo Kasaija stated that when he followed the cows onto the appellant’s home, the appellant arrested, tied and assaulted him. Irene Kabanyaka stated that after waiting for Yakobo Kasaija return in vain, she also went to the Appellant’s farm. The witness found Yakobo Kasaija beaten and tied on a tree in the compound she untied him.
Irene Kabanyaka testified that at around 7.00 p.m. she together with Rwaheru went to the appellant’s home to seek the release of the cattle. The appellant released to them the cows but retained the bull which he released after three days.
The learned Chief Magistrate believed Irene