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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
VERSUS
MUJWISA CHRIS ..............................................
RESPONDENT
BEFORE: HON. JUSTICE LAMECK N. MUKASA
JUDGMENT:
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 Kabanyaka’s
evidence that the cows were driven from the respondent’s farm
to the
appellant’s farm. His worship had an advantage over me in that he had the
opportunity to see and hear the witness testify,
which opportunity I luck.
However, there may be circumstances which may warrant an appellate court in
differing from a trial court
even on a question of facts turning on the
credibility of witnesses whom the appellate court has not seen.
The
evidence of the appellant and his witnesses is that this incident was reported
to the chairman L.C.I by then Bernard Rwaheru.
This was confirmed by Bernard
Rwaheru who testified that on 26th November 1999 the appellant
reported to him that the Respondent’s cattle had trespassed on his firm.
At around 5.30 p.m. the
witness went to the appellant’s farm where they
counted 29 cows. The 30th was at the home of the Appellant. I
believe that must have been the bull. After the cows had been counted, the 29
cows were released
to the Respondent’s workers who had gone to the
appellant’s farm to collect the cattle. The report was made to the
witness
by the appellant and not any of the Respondent’s workers. If
Irene Kabanyaka’s testimony was to be believed then the
acts of the people
who has entered the Respondent’s farm cut the barbed wire fence, driven
the respondent’s cattle out
of his farm onto another farm without the
Respondent’s consent were doing nothing short of stealing. Such conduct
was criminal
which called for immediate reporting to the relevant authorities
and arrest. There was no evidence of any report made by the Respondent’s
workers. Instead the Respondent’s workers went to the appellant to seek
the release of the cattle. Further such conduct was
unexpected in the hostile
circumstances shown by the evidence to have been existing at the material time
between the parties. The
conduct shows the Respondent’s workers trying to
plead with the appellant for the release of the cattle which they had allowed
to
stray into his farm. In the circumstances I find that had the learned Chief
Magistrate given the evidence before him sufficient
scrutiny he would have
believed the appellant and his witnesses and found that the Respondent’s
cattle did in the month of
November 1999 trespass onto the Appellant’s
farm, and I so find.
In his plaint, the appellant claimed for 3,300,000/=
as compensation for the property damaged. This claim is comprised of:-
(i) Banana plants destroyed in the course of July 1998 – Shs1,200,000/= trespass. (ii) Broken wooden bridge, banana plants and pasture damaged during – shs1,200,000/= the November 1999 trespass. (iii) Banana plants damaged during another trespass also – shs600,000/= during another trespass also during November 1999. (iv) Value of would be calf – Shs330,000/=.
In essence this is a claim
for special damages and as such must not only be specifically pleaded but must
also be strictly proved.
See Kyambadde V/S Mpigi District Administration
(1983) HCB 44, Asuman Mutekanga V/S Equator Growers (U) Ltd S.C.C. A No: 7 of
1995.
As for the trespass allegedly communicated in July 1998 I have
already upheld the learned Chief Magistrate’s finding that the
appellant
failed on the a balance of probabilities to prove the alleged acts of trespass.
Consequently, the appellant could not
recover any damages, special or general,
alleged to have resulted therefrom.
In his testimony the appellant stated
that during the November 1999 trespass the Respondent’s cows destroyed his
banana plantation,
broke a bridge on his farm, consumed his improved pasture
which had special legumes for exotic cattle. Both John Kasaija and Johnson
Kasanda testified that the Respondent’s cows broke the fence passed
through the appellant’s banana plantation and entered
the farm. Johnson
Kaganda stated in his evidence that the cows destroyed the banana plantation,
drunk water in the water troughs
and ate salt. John Kasaija only talked about
the bridge during cross-examination when the stated:
“Normally the plaintiff’s cows pass the bridge, which was broken ....... When the worker came he found the cows had broken the bridge.”
Similarly John Kaganda only talked about the bridge during
cross-examination when he stated:-
“ The cows used to use a bridge for a long time. The cows
of Mujwisa damaged Basaliza’s bridge. The cows broke the bridge because they came mating while passing the bridge. I found when the cows had passed the bridge, they had just passed you could tell by the hoof marks”
Michael Busingye testified that he was an Assistant Veterinary Officer
holding a Diploma in Animal Husbandry from Bukalasa Agricultural
College, 1995,
an attendant certificate from Tororo DFI covering crop Husbandry 1995 and a
Certificate in Artificial Insemination
from Entebbe Veterinary Institute 1998.
I was in charge of overseeing animal husbandry and fish farming in Hakibale
sub-county.
That on 27th November 1999 in the presence of the LCI
Chairman he visited the appellant’s farm with instructions to assess the
damage caused
on the farm b y straying animals. The witness tendered in
evidence two reports both dated 27th November 1999. In his report three
acres
of banana plantation had been damaged and he put the damage at Shs 600,000/=
There was a broken bridge but no value was put
on it. In the other report the
witness indicated that 4.0 acres of paddock with improved pasture had been over
grazed. The area
was explained as the area where the appellant had held the
straying cattle for between eight to twelve hours. The damage caused
by the
overgrazing was put at shs.1,200,000/=. In both reports the witness stated
that he had estimated the value on the basis
of the Area Compensation Committee
Meeting of 27th February 1996. The resolution or minutes of this
meeting were not produced in evidence so as to guide court on how the estimates
were arrived at by the witness. Though this witness stated that the L.C. I
chairman, Leonard Rwaheru was present when he was carrying
out the valuation.
All that Leonard stated in his testimony about the grass and banana plantation
was:
“--- The farm is covered with grass, I saw grass.----
The following morning I was called after the Veterinary Officer had come -- I met them in the banana plantation when they were coming back. -----
On the 1st day when I was called, we briefly went around, the cows
had excreted in the farm. ---“
This witness does not talk about any
damaged bridge, banana plantation or pasture. In Yosefu Kashongoize V/S
China Sickman Corporation (1995) IKALR 64 the plaintiff claimed compensation
for soil excavated from his land as murram Justice AN Karohora held:-
“As regards soil which was removed, I must state that this item was not
proved on the balance of probabilities. It was not
enough to write down
particulars and so to speak, to throw them at the head of court, saying this is
what I have lost. I ask you
to give these damages. They have to be proved.
See Boham Carter V/S Hyde Park Hotel (1994) 64 TLR 178. The onus of
proof was on the plaintiff to prove by calling quantity surveyors to tell how
much soil in cubic meters had been removed
and costs of each cubic meters but
there was no such evidence. In the circumstances this head of claim for damages
would fail.”
In the instant case the formula used to assess the
lost was not availed to court. The evidence of the Assistant Veterinary Officer
contradicted that of the other plaintiffs witness, particularly that of the L.C.
I. Chairman who never testified about the damage
to a bridge, banana plantation
or pasture. I find that the learned Chief Magistrate came to the right
conclusion when he found that
the appellant had on the balance probabilities
failed to prove his claim on the above three items.
Before I take
leave of the claim relating to the banana plantation and the pasture I must
point out that though the learned Chief
Magistrate came to the right conclusion
considering the evidence on record, his Worship largely based his conclusion on
his findings
at the locus. The court record shows that Court visited the locus
on 1st August 2002 and the proceedings were recorded as
follows:
“A Locus
1.8. 2002
Both parties present
Both Advocates present
Mr. Kihumuro – interpreter
Court: We were shown the plaintiffs farm land. – The pasture can not be said to be improved when it is covered with ‘Teete’ grass which is very old. The plaintiff is clearing it now. We did not see salt troughs. There is a water trough and not damaged. The wooden bridge is intact. Plaintiff says he repaired it after the damage.”
The learned Chief Magistrate drew two sketch plans.
The purpose of
visiting the locus in quo is for each party to indicate what he is claiming Each
party must testify on oath and be
cross examined by the opposite party. The
purpose is for the witness who have already testified in court to clarify what
they were
stating in court and to indicate features and boundary marks, if any
to the court. Any observation made or noted by the court at
the locus in quo
must be noted and recorded and must form part of the record. See J. W.
Ononge V/S Okallang (1986) HCB 63, Erukana Jawangara V/S Anderea Obbo –
Ogolla (1976) HCB 31. Save for observations of court the record does not
show any testimony by any of the witnesses at the locus in quo. In Badiru
Kabalega V/S Sepiriano Mugangu (1992) 11 KALR 110 it was held that if the
trial Court fails to follow the accepted procedure at the locus in quo and bases
its judgment on the trial
at the locus in quo, that omission is fatal to the
whole trial.
In Yaseri Waibi V/S Edisa Lusi Byandala (1982) HCB
28 Justice Manyindo held that the usual practice of visiting the locus in
quo is to check on the evidence given by witnesses and not
to fill gaps for then
the trial magistrate may run the risk of making himself a witness in the case.
Such situation must be avoided.
That being the position of the law as
regards evidence at the locus in quo, in the instant case the alleged acts of
trespass were
committed in July 1998 and November 1999. The locus was visited
on 1st August 2002. With lapse of time a lot must have changed at
the locus. There was no dispute over boundaries. The visit to the locus
was in
the circumstances a useless exercise. This case could have been decided without
visiting the locus. Without basing himself
on his findings at the locus, the
learned Chief Magistrate would have properly come to the same decisions on a
proper evaluation
and security of the evidence which was already available to
him on record.
The appellant also claimed for Shs330,000/= being the
value of an would be calf. In his report of 27th November, 1999 the
Assistant Veterinary Officer stated that when he visited the appellants farm
that day he saw one cross breed bull
of breeding age tethered by a rope to a
tree, that he also looked over several cows belonging to the appellant and
observed that
one had dried mucal discharge as from natural breeding. In his
report of 10th December 1999 the officer stated that on that day he
had checked the appellants cow for a retained placenta. That he found the
cow
had aborted on 6th December 1999, the foetus was between 4 to 5
months old and the cause could have been due to forced mounting of a bull. In
cross
examination the witness explained that by “natural breeding”
in his report he meant a bull mounting a cow. The witness
said that he did not
see all of the appellant’s cows that day and that he did not see the
appellant’s bull. The witness
stated that he did not know when the bull
mounted the appellant’s cow.
The issue is whether on the material
day of the trespass this cow had been mounted by the Respondent’s bull.
Did any witness
see the mounting and identify the bull? John Kasaija stated
that the Respondents bull also mounted the appellant’s cows which
had a
miscarriage. He said that he saw the Respondent’s bull mounting the
appellant’s cow. However, this witness while
being cross examined
contradicted himself when he said that he did not bother to keep looking at the
cows and when he said that he
saw the bull after it had mounted the cow. This
puts doubt to his testimony on whether he actually saw the appellant’s cow
being mounted by the respondent’s bull.
John Kaganda stated that
there was a bull which mounted the appellant’s cows which were pregnant.
In cross examination he stated
that the cows broke the bridge because they came
mating while passing the bridge. Yet he goes on to say that he had found when
the
cows had passed the bridge. Therefore this witness could not have seen the
cows mating as they passed the bridge.
There was no evidence to show that
the appellant did not have a bull on his farm so as to exclude any other bull
from being responsible
for the mating which could have resulted into the
abortion. The appellant failed on a balance of probabilities to prove that the
abortion was a result of his cow having been mounted by the respondent’s
bull. That put aside, the appellant did not adduce
any evidence to show how he
had arrived at the value of the would have been calf. It is trite that special
damages must be strictly
proved. Therefore the learned Chief Magistrate came to
the right conclusion when he dismissed the appellant’s claim under
this
item.
In his final judgment the learned Chief Magistrate found that
there was no proved trespass on both occasions and dismissed the
appellant’s
claim. I have already upheld the learned Chief Magistrate
finding with regard to the alleged trespass of July 1998. I have however
found
that the Respondent’s cattle in November 1999 trespassed onto the
appellant’s farm. In his pleadings the appellant
had prayed for general
damages and interest thereon at 60% from the date of cause of action until
payment in full.
As a general principle damages in tort are compensatory
in nature. A party who suffers damages due to the wrongful act of the other
must be put in the position he would have been had he not suffered the wrong.
The appellant was entitled to the exclusive use of
his farm and pasture thereat
by his cattle. His right was interfered with when the Respondent’s cattle
was left un attended
which enabled it to break the barbed wire fence between
the appellant’s farm and that of the respondent, and while on the
appellant’s farm intermingle with his cows and inevitably feed on pasture
intended for only the appellants herd. The appellant
was in the circumstance
entitled to reasonable compensation for the damage and inconvenience suffered.
At the court below the appellant
had prayed for general damages of
Shs6,000,000/=. However this was in respect of trespass on the two incidents.
This Court’s
finding is that the appellant adduced evidence to prove only
one incident that is of November 1999. In the circumstances I find
that general
damages of Shs2,500,000/= is reasonable and the appellant is awarded the same.
The appellant’s entitlement to
that money has only arisen upon the
pronouncement of this judgment. The appellant is therefore awarded interest at
the rate 25%
per annum from the date of this judgment until payment is full.
The appellant is awarded costs for the proceedings before this court
and the court below. I so order.
Lameck N. Mukasa
Judge
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