THE REPUBLIC OF UGANDA
IN THE COURT OF APPEAL OF UGANDA
CIVIL APPEAL NO. 05 OF 2005
DR. HENRY KAMANYIRO KAKEMBO
…………………...APPELLANT
VERSUS
ROKO CONSTRUCTION
LIMITED……………………...RESPONDENT
(An appeal from the Judgment of the High Court of Uganda
before the Honourable Justice Stella Arach dated 1st
September arising of H.C.C.S NO. 1605 of 2000)
CORAM:
HON. LADY JUSTICE FAITH E. MWONDHA, JA
HON. MR. JUSTICE RICHARD BUTEERA, JA
HON. MR. JUSTICE KENNETH KAKURU, JA
JUDGMENT OF THE COURT
This appeal arises from the Judgment of Hon. Lady Justice Stella
Arach Amoko J (as she then was) in High Court Civil Suit No.
1605 of 2000 dated 1st September 2004.
The brief back ground to this appeal is as follows;
The appellant is the registered proprietor of land comprised in
mailo Register Kyagwe Block 111 Plot 496 measuring
approximately 60.371 Hectares.
1
The appellant has been living outside this country for a very long
time in fact as early as 1984. He lives in Maryland, United States
of America, where he works as a physician.
On 24th March 1984 the appellant appointed his brother one
Mudiima Kakembo to be his Attorney. The power of Attorney is a
general one.
Sometime in 1999 with the consent of the appellant’s Attorney,
the respondent was allowed to excavate murram from the
appellant’s land.
It appears that the Attorney was in fact selling the said murram to
the respondent, but the respondent was the one physically
excavating the murram from the land.
As a consequence of the excavation of murram a pit was created
on the said land measuring approximately 0.40 hectares or just
about one acre.
The appellant was unaware of the respondent’s activities on the
land until sometime in 1999. When he returned to Uganda he
confronted the respondent about their activities and demanded
that the respondent restores the land. The respondent agreed to
do so and in fact made effort to fill up the pit created by the
excavation of murram.
2
The appellant was dissatisfied with the manner in which the pit
had been refilled and filed a suit at the High Court of Uganda on
21st November 2000.
In that suit the appellant claimed for Shs. 45,000,000 “as
compensation, general damages together with interest at 23%
per annum from the date of Judgment until payment in full.”
In that suit the appellant contended that the respondent had
“maliciously and savagely excavated” murram from his land
thereby rendering it barren and un-usable.
The respondent in its defence pleaded that the murram was
excavated under a contract signed between the appellant’s
Attorney and themselves and that consideration for the contract
was paid.
The respondent also contended that when it appeared that the
Attorney’s power was disputed, they refilled the pit. The
respondent also contends that the excavation on the land
involved other construction companies and not the respondent
alone. The respondent also contended that it paid the
respondent’s attorney for the murram.
The learned trial judge found the respondent liable for the
damage to the land and awarded the appellant Ugshs.5,000,000
(Five million Uganda shillings only)as general damages.
The appellant being dissatisfied with the award filed this appeal.
3
At the hearing of this appeal learned counsel Mr. Fredrick
Sentomero appeared for the appellant while learned counsel Mr.
Cephas Birungyi and Ms. Diana Nyakato appeared for the
respondent.
Both counsel adopted their written submissions as set out at the
scheduling conference. They also briefly highlighted the issues
already set out in their written submissions.
The counsel for the appellant generally submitted that the
learned trial judge erred in law and fact when she held that the
appellant had at the trial failed to prove his inability to use the
land following the excavation of murram by the respondent.
He submitted that the learned judge ought to have accepted the
valuation report submitted by the land valuer a witness for the
appellant at the trial. That the report he submitted was to the
effect that land had been rendered unusable as it could no longer
support any structures or yield any crops.
He submitted that the appellant having proved his inability to use
the land, and as such ought to have been awarded shs.
45,000,000 being compensation as claimed in their plaint.
Counsel for the respondent on the other hand submitted that only
about 1% of the land had been excavated and as such the
excavation could not have rendered the whole land unsuitable for
construction of structures or for growing crops.
4
He generally supported the findings of the trial judge.
We have listened carefully to the submissions of both counsel. We
have also read the record of appeal, the conferencing notes and
the written submission filed by both parties to this appeal. We
have also read the authorities cited and relied upon by both
counsel.
This Court is required under Rule 30 of the Rules of this Court to
re-appraise the evidence of the trial court and come to its own
decision. Rule 30 (1) (a) states as follows:
“Power to reappraise evidence and to take additional
evidence.
3 (1) on any appeal from a decision of the High Court
acting in its original jurisdiction, the court may
(a) reappraise the evidence and draw inferences of
fact”
The Supreme Court in the case of FR. Narsensio Begumisa and
others versus Eric Tibebaga, Supreme Court Civil Appeal
No. 17 of 2002 Mulenga JSC who wrote the lead judgment
observed as follows:-
“It is a well settled principle that in the first appeal the
parties are entitled to obtain from the appeal court its own
decision on issues of fact as well as of law. Although in a
case of conflicting evidence the appeal court has to make
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due allowance for the fact it has neither seen nor hence the
witnesses, it must weigh the conflicting evidence and draw
its own inference and conclusion”
We shall therefore proceed to reappraise the evidence and we
shall come to our own conclusion as required by law.
The basis upon which the appellants claim was premised at the
High Court is not clear to say the least.
It is not readily ascertainable whether the claim is based on
contract, tort or land law.
The fundamental rule of the common law legal system of pleading
is that “every pleading must contain and contain only, a
statement in summary form of the material facts on which the
party pleading relies for his claim or defence as the case may be,
but not the evidence by which those facts are to be proved” see
Order 6 Rule 1 of the Civil Procedure Rules.
It is therefore generally unnecessary to state in the pleadings the
principle of common law or the contents of a statute. The law
need not be pleaded to show that a plaintiff is entitled to a
particular claim.
However, it is good practice to specify under which principle of
common law or statute an action is based. For example whether
the action is tort or contract and if it is based on tort what kind of
tort, whether trespass or negligence, or defamation, or any other.
6
In some cases causes of action need to be specifically pleaded for
example where a claim is based on a contract or negligence. In
such cases particulars of the contract or negligence are required
to be pleaded.
The law of limitation for example applies differently to different
causes of action in that regard, it is important to be specific in the
pleadings as to the cause of action. Fraud must be specifically
pleaded for example, together with facts, and circumstances in
support of the allegation.
It is trite that a party to a suit would not be permitted to adduce
evidenced to prove facts which have not been pleaded.
The Remedies available to parties flow from their pleadings
whether the action is breach of contract, negligence, conversion,
detinue, defamation or any other cause of action.
In this particular case the plaintiffs claim is set out as follows in
his plaint.
3. The Plaintiff’s claim against the Defendant is for Ug.
Shs. 30,000,000/= as compensation, general damages
together with interest as a rate of 23% per annum from
the date of judgment until payment in full.
4. The Plaintiff cause of action arose as follows:-
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a). The Plaintiff is the registered proprietor of land
comprised in Block 111, Plot 496, Mawotto
Kiwanga.
b). That the Defendant’s employees, acting within the
scope of their employment, maliciously and
savagely excavated the Plaintiff’s land (mentioned
above) for murram thereby rendering it barren and
un-usable and as such, the Defendant is
vicariously liable.
c). Consequently the Plaintiff has suffered
inconvenience and loss of income due to his
inability to use his land.
5. Despite repeated demands the Defendant has refused
and or neglected to compensate the Plaintiff for his
unlawful acts.
The basis of the appellants claim for Shs. 30,000,000 later
amended to 45,000,000/= is not clearly set out in the plaint
above.
The basis for the remedies sought is also not clearly set out in the
plaint. In respect of remedies the plaint stipulates as follows:
“Wherefore the plaintiff prays for judgment to be entered
against the defendant for:-
a) Ug. Shs. 45,000,000/= as compensation.
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b) General damages
c) Interest at rate of 23% per annum from date of
Judgment till payment in full.
d) Costs to this suit.
e) Any other relief this Honourble Court may deem just.
At the trial the thrust of the plaintiffs case was that the
respondent unlawful entered his land, excavated murram and
thereby damaged his land. That as a result of the unlawful actions
of the defendant the appellant suffered loss and damage.
Specifically the action of the respondent damaged the appellants
land so extensively that it was rendered unsuitable for its original
use. That the appellant’s land as a result lost 70% of its value.
The loss of value was estimated at 45,000,000/=.
The learned trial judge found that the appellant had failed to
prove the loss of value to the land. However she awarded him
5,000,000/= as general damages.
We agree with the learned trial judge that respondent did not
have any contract with appellant as claimed by the respondent in
their written statement of defence.
Although the appellant persued this claim as compensation for
loss of the value of land, it clearly appears that such claim was
misconceived. The suit was in fact an action in trespass and
damage to land, the remedy as the learned trial judge correctly
9
held, was for general damages and not for “compensation for loss
of value” as submitted by counsel for the appellant.
The appellant failed at the trial to prove loss of value to the land.
He also failed to prove that the land had been rendered useless
up to 70%.
The appellant’s own expert witness conceded that he was not
qualified to assess the cost of restoration of the land and could
only assess its value. In his own valuation report he states as
follows as page 2.
“We note that a few of the instruction could be more
appropriately handled especially by mineral surveyors or
geologist or a soil engineer (such as the type of refill) and a
land surveyor (on the size and volume of the land taken)”
In his testimony in Court the same valuer stated as follows during
cross examination.
“I said a mineral surveyor or a geologist or a soil engineer
would have been the appropriate person to comment on the
type of refill”
We therefore agree with the learned trial judge when she rejected
the said land valuers report and evidence. In our view she was
correct when in her Judgment at page 10 she concluded as
follows;
10
“Clearly this report cannot be relied upon to prove the
inability to use the land because the report was produced by
a land surveyor who confessed in the report that he had no
knowledge of the soil”
Our considered view is that the appellant should have ascertained
the cost of restoration of his land. He should have produced
evidence to show how much it would cost him to restore his land
to the state in which it was before excavation of murram by the
respondent. This would then have formed the basis of his claim
either for general or special damages.
In any event under Sections 67 and 71 of the National
Environment Act (NEA) Cap 153 the respondent would still
have been responsible and liable to restore the land back to the
state in which it was before the excavation.
The appellant could have applied under section 67 of National
Environmental Act (NEA) for a restoration order from National
Environmental Management Authority (NEMA) or could have
instituted a suit under Section 71 of the same Act for a restoration
order against the respondent. The relevant part of Section 67 (1)
stipulates as follows;
“Environmental restoration orders.
67 (1) Subject to the provisions of this part, the
authority may issue to any person in respect of
any matter relating to the management of the
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environment and natural resources an order in
this Part referred to as an environmental
restoration order.
2. An environmental restoration order may be
issued under subsection (1) for any of the
following purposes:-
(a) requiring the person to restore the
environment as near as it may be to the state in
which it was before the taking of the action
which is the subject of the order”
Section 71 (1) stipulates as follows:
“71. Issue of an environmental restoration order
by a court.
(1) Without prejudice to the powers of the
authority under sections 67, 68 and 69,
the court may, in any proceedings brought
by any person, issue an environmental
restoration order against a person who
has harmed, is harming or is reasonably
likely to harm the environment”
The respondent’s legal obligation to restore the land under
National Environmental Act (NEA) still subsists.
12
We find that the contention by the appellant that he lost 70% of
the value of his land is untenable and has neither evidential nor
legal basis.
The valuation report submitted by the appellant himself in court
states that only 0.4 hectares about one acre of the land was
excavated. The whole land measures 40 hectares according to
the valuation report but a close look at the title indicates that it
measures 60.371 hectares which is equivalent to 149.11 acres. It
means therefore the area effected by the excavation is
approximately 0.67% of the total land area. It is not possible in
our view that such a small area could reduce the total value of
that land by 70%.
We agree with the decision of this court in UGACHICK Poultry
Breeders Ltd versus Tadjinkara T/A S.T Enterprises Ltd
Court of Appeal Civil Appeal No. 2 of 1997 in which Manyindo
DCJ held regarding the evidence of an expert witness that:-
“The court is not bound to accept his opinion if it found
good reason for not doing so, although to reject expert
evidence without giving reason might well be unjudicial.
Here the learned trial judge gave reasons for rejecting
the opinion”
In the particular case before we find that the learned trial judge
was justified in rejecting the expert evidence and for good reason
too. The expert had declared himself unqualified in aspects of the
13
work he was required to do and his findings did not match his own
conclusions.
The case of Management Training and Advisory Centre Vs
Patrick Kakuku Ikanza (1986) 1 HCB 43 is authority for the
holding that evidence to prove a case on a balance of probability
must be inferred not from pure conjuncture which has no legal
value but from reasonable inference.
We find that expert evidence in this case was pure speculation
and conjuncture and we accordingly uphold the trial judge’s
decision to reject it.
The appellant having failed to prove his case in respect of
damages, the learned trial judge was justified in awarding him
general damages the way she did. Although she did not
specifically state so it seems the general damages were awarded
not for compensation for the loss of value of the land but for the
damage to the land resulting from the trespass.
In the circumstances of this case we find that the learned trial
judge was justified in awarding 5 million as general damages. We
have found no justification in interfering with the said award, in
any case enhancement of damages was not one of the grounds of
appeal.
This appeal therefore fails and is hereby dismissed with costs.
Dated at Kampala this 4th day of April 2014.
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.................................
HON. FAITH E. MWONDHA
JUSTICE OF APPEAL.
........................................
HON.RICHARD BUTEERA
JUSTICE OF APPEAL
......................................
HON. KENNETH KAKURU
JUSTICE OF APPEAL
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