[1996] UGHC 69

TtIB REPUBLIC OF UGAliDA,

HIGH COURT OF UGANDA HOID72T AT ICAHPALA.

## CIVIL SUIT ITO. 909 OF 1993

M. BUDULE PLADTTIFF VERSUS DEFZITDAl'JT. STERLETG IITTER17ATI0NAL CIVIL EIIGIiIEZRIITG LTD. (u) LTD.

## BEFORE: HIS LORDSHIP, ROZT. B. S. LUGAYIZI.

## JUD GUE ^H T>

The Plaintiff in this case sued the Defendant for trespassing on Ms land comprised in Block 237, Plot 222, I-utungo, and excavating therefrom murrain worth UGS. 330,000,000/= which it took away leaving the said land extensively damaged.

The Defendant in its written statement of Defence and reply to the5^ Amended Plaint wholly denied the Plaintiff's claim above. It insistedthat the plaint did not disclose any cause of action against it, for it had paid for excavation rights from a customary tenant in respect of the murrain in issue.

Plaintiff" as compensation for the small amount of murrain it excavated from the land in Kutungo. Alternatively, but without prejudice to the above, the Defendant averred that it was ''ready and willing to pay UGS. 387,600/= to the

In an effort to prove his case, the Plaintiff called three witnesses, surveyor representing the Plaintiff in this case, but later pulled out of it when he opted to become a witness therein). namely, I.ohamed Buwule (i.e. PHI who is the Plaintiff himself, and is a medical doctor and businessman), Ibrahim Tamale (i.e. PW2 - a practicing ), and Ur. ITsubuga ITsambu (i.e. P. I3 an advocate who was originally

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In very brief terms, the said witnesses testified, as follows: This land is in Mutungo near ^ICampala. ''That Pul is the registered proprietor of the land in issue (i.e. Block 237? Plot 222 whose Certificate of Title is Exh. "P1".)

Initially, the said. land, was quite big, but presently it is of a smaller size. This is so, because some of it was, in the course of time, sold.. the remainder was given a new number (i.e. Plot# 222) And as a result,

Between 1991 and 1994? the Defendant unla'vifully entered the Plaintiff said land and excavated from it murrain which it took away without the Plaintiff's permission.

Despite the Plaintiff's protestations in respect of the above, the Defendant ignored him and went on excavating the murrain in issue.

In all, the area affected is 5 acres big. The Defendant left it covered with big holes. That spot is near DH2's land.

*The* Plaintiff eventually instructed PW2 to value the damage to the *•I* said land. And at one point after that, the Defendant had agreed to compensate the Plaintiff. However, that did not materialize since the two parties herein could not agree on the amount of money to be paid.

Although ths site from which the murrain was taken by the Defendant is near ^D'"2'^s home, it lies on the Plaintiff'^s land. And the Plaintiff'^s 3—0 plea to this court was to give him compensation in respect of the damage which the Defendant had occasioned on the said land.

In his evidence, Pn2 agreed that he received instructions from P'Jl to go and value the damage which PWl'^s land had suffered as a result of murrain having been excavated from it.

In that connection, P7.;2 wont to the land in issue with P\*. I1 who pointed it out to him. The said lend was in I.utungo; and PUl gave Pj² a Certificate of Title in respect thereof.

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land« excavated lay within the boundaries of the Plaintiff's Polloxring the above, P'J2 was ablo to ascertain that indeed the pit from which murrain was

The area affected was 5 acres big. The pit was 38 feet deep and it slanted downwards, covering the said area.

FJ2 measured it with a tape measure and took averages which he worked on and came to the conclusion that in all, 18,100 cubic metres of murrain include the top soil which had just been pushed downwards. had been removed from that piece of land. However, that figure did not

After the above exercise, PU2 made research which was based on inquiry /O from the 'Unistry of 'Jorlzs, head-quarters, Uukalazi Technical Services and , lukwago Construction Company with a view to finding out the cost of murrain per cubic metre.

At the Ministry ©f Works, P^h 2 discovered that the Government officials metres of murrain. did not negotiate with the owner of murrain, but simply compensated him for IS it at the rate of UGS. 30,000/= for a 10 ton tipper lorry carrying 3 cubic-

the same tippers of murrain. However, the private road constructors prices were UCS.60,000/= for

allowance for inaccuracies on loading. From the above therefore, ?W2 was able to conclude that a 10 ton tipper'2jO lorry of murrain would cost UGS. 58,000/= on the open market after giving

For him, thftt meant that the cost of murrain excavated from the ■Plaintiff'^s Ic-nd was UGS. 330,000,000/= as was shown under Exh\* ^l'P3".

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P..^T2 also pointed out that although the area from which the murrain in issue was excavated was basically residential, that site could not be built up since it had big holes covering it.

agricultural purposes because the top soil had been removed• it could not also be used for

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Lastly, PW2 revealed to court that he had. made only one valuation report in this case not withstanding the fact that when he returned, to the it. site in issue later, he found that more murrain was being excavated from *S*

On RT3's part, he tele, court that he was intially the Plaintiff's advocate in this matter⁵ and that in 1£Q6, PHI gave him instructions uO serve the Defendant with no the land in issue. ce that he (the Plaintiff) was the owner of . **1°**

PW3 complied, and as a result the Defendant's advocates, I-j/s. -^unter. and Greig, subsequently wrote to him Exh. admitted liablity and also indicated willingness to settle this matter; "P6" in which the Defen -ant

However, since PW3 did not wholly agree with certain aspects of the (who was actually in charge of the Defendant's case) *⁹* to go and visit the land in issue with him and PHI. proposed settlement, he invited Mr. Katera, one of the Defendant's advocates (5

^hen the said visit took place, PW3 was surprised to find that virtually the whole place had been destroyed. The area affected was 5 ~ 6 acres big.

After the said visit, P'B wrote another letter 1-hdi. "?7" to the Defendant's advocates, but no settlement was reached between the parties herein.

PH3 further explained to court, that PH2 made two valuation reports on this case. He made the first one before the Defendant intesified activity on the land in issue ⁵ and the second one later after it had stopped up its activities on the said land.

In its de 'ence, the Defendant called six witnesses, namely, Frank K^ramaga (i.o. D'..'l - who was one of the Defendant's employees and among other things, acted, as a link between the Defendant and its lawyers);

George Jil\_iam i>alya Ssalx (i.e. D'J2); David. Byakushelza (i\*e\* D7I3, civil engineerwho works for DW6, a rates officer who works for Kampala City Council\*) a practicin valuation surveyor); Albert, Sonulntu (i.e. DtrA, a consultant engineer and surveyor); Joseph Sobuliba Musoke (i.e. D',15, a Kampala City Council); and I-?. Hadaba Tom (i.e.

I will now lay out their respective testimonies in brief\*

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According to DW1, in 19%? the Defendent bought murrain from DvI2\*

The said murrain was excavated from ^D';. T2's land which was in liutungo and of a mile from the old Butabika road. lies -J

The very spot where the Defendant dug the murrain in issue was either [tD at the back or side of D".'2!s house\*

Before proceeding to excavate the murrain in issue, DV2 convinced the ' Defendant that he was the kibanja holder of that place; and that the land itself, belonged to the Kabuka of Buganda.

it sourjit to take from the former's kibanja. As a result of the above, D7I2 and the defendant then reached an understanding whereby the latter had to pay UGS. l\*lm/= in return for the murrain

In addition to the above, the Defendant made a road in that area which ended at DH2's kibanja. It also cleared that place of bush\*

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It then proceeded to excavate the murrain. It did that job for two months and received a letter saying that the said land belonged to the Plaintiff\*

On inquiring from DII2 about the above claim, DK2 dismissed it\*

its advocates ( i\*e\* to the Plaintiff. the said land belonged 2^ However, the Defend-nt referred the matter to Messrs Hunter and Greig) who later advised it that

D'Jl lastly admitted that if the Defendant had known before that the land in issue belonged to the Plaintiff, it would have negotiated tho price of murrain with him\*

9.. T2 said in his evidence, that ho had a house in an 18 acres Kibanja at I-Utungoj and up to 19'96, ho used to pay land rent (Busulu) to the ^I'a'baka of Bugnnda in respect thereof# However, he did not have any Busulu receipts irith him "because ho lost then all, during the 1\$65 period of insecurity#

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u'I2 also explained that between 1991 and the beginning of 19£2, the Defendant extracted murrain from That spot measured ¹⁵⁰' *x* 80¹ and the holes therein were not deeper than ⁵ feet. a spot in his said kibanja.

DI'2 further pointed out that the Defendant paid him UC-S# l.lm/= for the said murrain, cleared some bush in that area, and also made a road *[O'* going to his home.

In addition to the above, D'J2 related to court that when the Defendant • finished digging the murrain ctors camo to the neighbourhood and took away murrain from there at **wiSl.** from the said spot, it covered the holes and went away. However, later on, Kampala City ^ouncil and some others extras-'

In his evidence D?3 told court that on the instructions of the Defendant, he want with DW2 ana. measured a certain area in ^I Zutungo which vias part of a murrain quarry. That took place on 15th December, 1994#

The said area was shown to him by D'»'2; and it measured 100 ¹ x 120\* or 0.27 of ahi acre.

D"3 worl:ed out the mar1st value of the land whore the above pit was, and showed it under :±. "DI". It came to a figure of UGS. 2.2m/=. He said that that figure remained the same before excavation of murrain and afterwards.

He was also of the view that although the general use for the land above was agricultural/residential, its best use was residential. *IS*

D74 told court that he specialized in building consultancy engineering, . and related disciplines; and had been in that field for the last fifteen years.

•••/?•

made up of three He then pointed out th'.'-t the price of murrain was components namely;

a) the prime cost of the earth;

the mining costs; and ^)

the haulage costs. c)

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He further explained that murrain was priced where it was. And because the mining and haulage costs were very high, it was usually obtained near where it would be finally used.

'cubic metre of murrain (i.c. 1 ton would cost between UCS. 50^/= and 600/= • The price of murrain was expressed in cubic metres; and a standard or seven cubiot metres of murrain (i.e. 6—7tons).. tipper lorry would carry sir: A

DW4 also revealed to court that the price of murrain around Kampala was roughly the same. And ordinarily, the person buying it would mine itand transport it between UCS. 2J00/= and UCS. 3000/= per tipper lorry.

^D'. IJ part told court that he was the engineer in charge of ^I ^I building roads in Kampala City in 1991\* And at that time, the 6th and 7th Streets needed building. The defendant vras awarded that contract,'

> Initially, murrain for the said job was to come from I-Ibuya near Kampala, but for some reasons, the Dofonl. nt could not get it from there. The Defendant therefore decided to get it from Iiutungo at a place which was off the. <2^0 Old Port-Boll road.

The pit from which that murrain was obtained covered 5 acres. There them. were a number of pits which wore inspected, DHJ himself inspected four of

The said pits were JO - 70 metres big and about J metres deep.

During the above ezzercise, 8J00 cubic metres of murrain which cost *'* UCS. 1000/= each were ezzeavated from Kutmgo. That fact was confirmed tho said murrain was excavated . nd the site where the roods wore tailing into account tho following; both a\*b me pit v.hcre built (i.c. in the Industrial area 6th - and 7th Streets). murrain was arrived at by *O* •As far ac DI.'J wms concerned, the cost of

excavation costs; a)

loading costs; .:nd

haulage costs. c)

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However, the marram itself costs very little. This is so, "because it is easily obtainable.

^D"5 also told court that llrh. which was prepared in ¹⁹⁹⁴ did not *^&gt;* exactly reflect what was at the site where the marram in issue was excavated. "P3"

In his view, the quantity of marram under Isdi. was too much to coverwhat was needed under the Industrial area project which the Defendant under-**⁸** took to carry out for Kampala City Council between 199'1 ¹⁹⁹² • And ' Io although the Defendant also carried out some other projects for Kampala City ^J Council after the first one above; for those other projects, it obtained the necessary marram from IJov.ya. "P3"

> DW5 revealed to that Kampala City Council was the only institution in • Kampala which engaged the Defendant on road building contracts; and that /3 marram was not useful for any other purpose.

> D'?5 further explained to court that when the Defendant completed the first project in February, 1992, he visisted the place where it had extracted the marram in issue in Ziitungo. He found that place levelled; and the Defendant had disengaged from it.

On his pert, Du6 told court that as a rates officer in Kampala City Council, he could recognise rates demand notes, and payment receipts shown They were all in building in 'Zutungo, which is in Area 6 and under Block 237j Plot Ko. 62. to him as \_-xhs. "D2A", respect of a D2B", D3A" "D3B" D3C" and D3D".

The said documents were in D'!2'^s name and covered the period running from 1991, to 1994 inclusive.

could own a building on some other person's land. In cross examination, D'J6 admitted that he did not know that someone G

agreed issues (with a little modification made by me ^Cl. See ndcr 13, rule ⁵ of tl.o Civil Pi'occdure Pules) were as follows -110

1. Whetlier the marram in issue was extracted from the Plaintiff land? 2. it was, '..'bother that amounted to trespass on the Plaintiff\* s land?

2> . That are t?\*.e appropriate remedies in this case?

D

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> As fur as the first issue is concerned, in his evidence PW1 -^old court tliav the marram in issue was extracted from his land in liutungo which is hear 'lampala. And the area affected was 5 acres.

lie then pointed out (0 that his land was initially part of a big chunk of land which was made up of many plots. However, some of those plots were sold to tther individuals with the result that what presently remained of the said land was under Exh.' ' (ie Block 237,Plot 222)piT2 also told court that in PH1 instructed him to visit the land in issue and among other things, do some valuation. work on it for him. he did the said job. "p '!¹ " PU1 gave him the relevant Certificate of Title before. i.e insisted that although the pit from which the said marram came was \* near DU2's lull, it was, ho;.-ever, not on DW2 land.

T he two (PU1 and PiI2) then visited that land and the latter confirmed . that th.: marram in issue ;ras extracted from the Plaintiff's land. The are affected :ras acres.

On his part, PH3 said that he too visited Pill's land in Ilutungo. Ee -..ent ⁱ first adv'ocate).' there with ?U1 and II?. Hateera (ie the Defendant's

> ?'3 also pointed out that by the time Ir. Ilatora ceased to represent the heha' *pa"in'.* the plaintiff in respect of the damage to his land. Defendanty he had written Ezh."P6" to him, herein. he admitted liability on of his client, in this co.se; and also proposed settlement 'by way of

the marram in issue was extracted from the Plaintiff's lend in Eutungo. On the other land, t'no Defendant's sixte through ^DTJ2 and DU⁶ denied that

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S'.:2 told, court that the mc-rram in issue was extracted from his ---banja in \_iv.tun.go after ho ]iad given the Defendant authority to do so. --e g. "0 the size of the spot affected in his I'ibanja as measuring only IpO'xC-O'*.*

was shown by the rates demand notes and payment receipts under Dxhs D2A"*.* ,\_rD3" and "D3D". "D2D", D3K", ^HD3E" 62 as According to DW6, DH2 houu-e in T-Iutungo was found on Block 237,Plot JS

Zn addition to the above, the Defendant's side also relied on the evidence of DH1 and DU2.

According to DU1, when the Defendant was in the process of excarating the marram is issue from Hu.tungo, the plaintiff notified it that it was doing so without his permission as owner of the said land. Following the above notification, the Defendant referred the matter to its advocates (ie T-Iesrs Hunter and Greig) who confirmed to it, through their Hr. Katera that the said complaint ^T.ras genuine.

On his part, DWJ also told court that the sport from which the Defendant extracted marram in Hutungo was 5 s,cres big.

Be that as it may, I think it is quite dear from the evidence 'which ⁱ registered proprietor of the land under Dxh. (ie Block 237, Plot 222 That evidence was not challenged. And according to the plaintiff, this is where the marram is issue was excarated from DTT2's piece of land which was nearby. at Hutungo). "P1" wets led by the plaintiff's side on this issue, that the Plaintiff is the

> from -niece of land filling under that title. Also F'T2 (a valuation surveyor) who used ^P'.'l's certificate of Title to value the narrar.i in issue, confirmed that the said marram was execrated*'2J&'*

> silo, cd that tho Defendant (t'\_-rough this advocate Hr. Haters) had, at one In addition to the above, there is also that part of PH3's evidence which roint. Quitted liability in this case, and was willing to settle-the matter

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We ward to plaintiff U. Mas 2,248,925, =.

To confirm the above, FIB produced Int. "P6" which reads as follows:-

$11$

"Hunter Crien Advocates Colicitors

19th April, 199

Hesurs Normbu & Co.

Advocates,

**MIRKA**

Dear Sir,

RT: H. C. C. E NO. 505 OF 1993 $\frac{1}{2}$ M. BUNULS VA. STERLING ENTRUATIONAL CIVIL ENTROPERING CO. LITTO.

We have taken instructions on this matter and these are that our client extricted $\mathcal{E}$ , 955, 7m work Shc. 2,248, 925/=.

ıS Our client is willing to pay this in full steplement of the case.

Yours fulthfully,

FINDER & CLIC".

Since the above letter was <u>not</u> written on a "Without Prejudice" basis, I think it can be sufely inferred that the Defendant was willing to partities sum of UCS.2,240,525/= because it realised it was liable for $20$ the domage done on the phintin's said land.

In view of all the above, $\overline{\text{A}}$ an of the opinion that the plaintiff has, on balance of probabilities, been able to prove that the marram in issue the characted from his lark in Netungo, and not from DM2's Mibanja which

$.../12$

w'as or. sor.o ot2\.?r person's l^nu

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to the second issue, feel it might "be of some interests to point out hero, that even the Defendant's side led evidence v.v.icli confiw/.s the reliability of court's conclusion on the first issue. Before moving on

Advocates the Defendant that it was true that the marram in issue was extracted from **s** •ien (Messrs Hunter and Greig through their IZr. Katera) advised According to D"J1, when this controversy arose, the Defendant's

5 acres in siue. The above aside, part of DTJ5's evidence was also to the effect that the sport from which the Defendant extracted marram in Ilutungo measured *I*

in that area. evidence) which showed that the said spot only measured around 15O'x8O' or ¹⁰⁰ x120' or 0.27 of an acre, it agreed with BM'^s **PW2'^s** and **PJ3'^s** evidence Altr.ou/p'- the above part of D¥J9s evidence wholly contradicted the Defendant's other witnesses evidence in that area (ie **D'J2'**s and **DW3's**

mentioned above, had the same place in mind; and that was the spot on the Plaintiff's land at Uutungo. t that D'J5 an^ the Plaintiff's witnesses To me the above neo

Lastly, D'Jo'^s evidence under Zibdis. "D2A","D2B", D3Arti "D3B", D3C" , and D3D" also tended to show that **DW2's** interest on the land at I-iitungo was another piece of land (i.e. Plot 62). unlikely to be found on the Plaintiff s land (i.e. Plot 222) but on

Turning now to the second issue, in order for someone to succeed in an action for trespass, he would have to prove the following;

- a,) that he 'was in possession of the land in isrue; and - b) that the Defendant unjustifiably interferred with the possession of the said land. (see "Jinficld and Jolowics on Tort 9th Din.

Pare 30?)-

As f< possession was not proved. possession" • on Tort (15th Din. Pages 1100-1101) where phusical as possession of the land in issue is concerned, according to Clerk and Lindsell ''proof of ownership" 'rould be prima facie proof 01 possession unless there" was ''evidence that another person" was in

It is true that in this case the Plaintiff did not prove that he wasin physical possession of his land at kutungo. However, since court is satisfied that he is the owner of that land, and he does not seen to he facing any challenge by another "who is in physical possession of it, court takes it that he is in possession of that lend. *^j 0*

the plaintiff showed that the excaration of his land by the Defendant was without his permission or authority. As for the Defendant's unjustifiable interference with the possession of the said land, I am of the view that ingredient was also proved when.

acts above, amounted to trespass on the plaintiff's land. In the circumstances, I have no choice but to hold that the Defendant's 15

The above would have led me straight to a discussion of the third issue, but before I take it on, I would like to dispose of a Question or thought which lias occupied me at this point, ant it is as follows

Supposing I was foun". to have been mistaken in resolcving the first and second issues above, and that DW2 was indeed a customary tenant on the second issues above? plaintiff's land, wouldn't that affect :?.y conclusions under the first and

Assuming that the above was true, 1 believe it would not have affected by decisions under the said issues,

plaintiff was trio ouaior of the land at 1-utvnro an\*l that the naram in issue was extracted from his land. I would, still have found that the

I w.vld also have consider it useless for the Defendant to say tb^t ^D'.'i guvo the said lend. In that hypothetical rit it ti e necessary permission or authority to ewe rate marram from ation, D'.^r2 being only a tenant at

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luid (see 5.3 of the loud Reform lie could not have lawfully authorised the excaration of marram from it. Suck an act would have been of the kind that would permanently injure the land in issue whose reversionery interest Clerk & liudsell on Torts Ipth-Ddn was only vested in the plaintiff (sec Page 1105) at suffranco in respect of the plaintiff s Decree (Decree 3 of 1975)

found that the Defendant needed permission or authority fro:.: trie plaintiff to oxcarrto marram from his land at ^I iutongs anct without tint permission the Defendant would he a trespasser. In the end, I would also, have,

in the amended plaint, the ^| O As for as ths third issue is concerned, plaintiff prayed court to award him the following remedies,

- (a) uos. 330,000,000/= as special damages (ie the value of marram execrated from his land; - (b) General damages for trespass and damage to property,

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(c) Costs of this suit with interest from Judgment full realisation)^'

will deal with the Plaintiff's request for special damages first.

The plaintiff's side through PJ2 told court that the Defendant excarated from 5 acres of the plaintiff land at Kutungo, only 18,100 cubic metres of marram which wore worth UGS. 330,000,000/=.

lie pointed cut that he was able to establish the said through inquiries which ho made at the k'inistry of Works and private road constructors. J5 ^p'.!2 also gave the approximate market price of marram generally as UGS 58,000/ = □er 3 cubic metres.

F. I2 also insisted that -he made only one valuation report (ie Exh."P") in respect of this case.

**c-n t:** It was cf the vic:: that they were not correct. other bind, the Defendant s side disagreed with the above figures.

as far as the price of marram ⁵ - understood DW4 and DH5 correctly, was concerned, they were telling court that the actual price of marram itself, v -s somewhere between UGS 200/= and UGS 400/= cubic metre.

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metres of as the average and multiplied it by 85OO cubic marram we would get UGS. 2,550,000/=. ^v Zf, we now took UGS 300/=

approximate price of marram which was extracted, from the land at Kutungo• *So,* according to the Defendant-s sides, the sum of UGS 2,550,000/= was the

;;ow, if I had. to chose from thetwo versions above which version I thou^it sounded more crebible, I would have taken the Defendant's. At least, I think, it was well explained. *IO*

I would have refused the Plaintiff version 6n the following grounds:-

valuation report (Hxh. as the value of the marram in issue was arrived at, was contradicted by P33 who told court that actually, PW2 made two valuation reports in this case. In the first place, KT2\*s evidence to the effect that lie only prepared one nP3") in respect of which the figure of UGS 330,000,000/=

s. This is not only because of the fact that F»T3 is a advocate of this Honourable Court and was therefore unlikely to have been telling court lies on the above matter, his version is also supported by the original plaint which indicates that there was another valuation report. That first valuation report had put the value of the marram in issue at UGS 155,000,000/=. case) I would have taken PW3' Of the two versions above (on how many valuations reports PW2 made in this

One therefore wonders why PU2 chose to tell court lies on that simple matter; S ocondly, PW2 s findings concerning the price or value of marram which was exoaraied from the land in issue lacked ^a scientific base. 2 of 10C3- the supremo court has this to say, Ti<'the~~caro of I.usisi Dirisa <1 3 others Vs. Sietco (u) Ltd Civil Appeal ITo. 24

**... Z¹⁶**

"........... : my emport withers must provide a scientific base for his opinion before his findings can be necepted by court .............."

$-16$ -

In this case, RM2 told court that he established the price of marram. after finding out from the Ministry of Morks and from several private . constructors what they had to say on the subject.

From the abo e, it is clear that FM2 simply relied on hearsay to establish the price of marram. He did not approach the problem scientifically.

In that respect too FM2's conclusion touching the value of the marram in issue, would remain suspect.

Thirdly, I also beli ve, that in their Exh."P7" (which was not written - 1 O on "a without prejudice" basis) the plaintiff's side in the end admitted that the volume of marram which was excarated from PM1's land at Mutungo, was closer. to the figure which the Defendant's side give then to that which was given by th eir expert witness $(FX2)$ .

For the sake of high lighting the contents of Exh."7" they read as follows:-/(

N/S Hunter & Greigh Advocates

16th Hay, 199....

## **INT/PALA**

Dear Sir, Re: Your Ref, JY/SIZ/50225 Duted $19/4/94$ FCCS Ho. 909 of 1993 20 H. Buwule Vs. Sterling Int. Civil Eng. Co.

Thank you for your letter quoted above. We forwarded it to the plaintiff who made more anguiries and learnt that the 8,55.7m 3 your clients extracted were worth Shc. $600,000,000/$ = but not 2,240,925/=.

We would, therefore accept to settle the case in terms of the prayer on the ZX plaint.

You's Cuithfully,

## TENDE & COMPANY'

'the underlining above is mine)

$... / 17$ cannot That figure was arrived out. if the above admission is good metres) and not 8£55\*7 cubic evidence in this case, then it becomes tn^t P32's figure of VGS. 330,000,000/= ns the price of marram in issue be relied upon as the true price of that marr^jii. £t oy applying 4.8,100 cubic metres of marram to what FJ2 raise lent ifically gave as the price of marram (ie UGS.\$8,000/= 9 3 cubic metres) and not 8955\*7 cubic metres of marram as- the above adminsion points

bl

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bl Kutungo would cost more that VGS 200m/= (ie VGS 401:/= 9 acre). so, then it would almost ne scandalous to say, that 18,100 cubic metres □..rram taken from that land, would costs VGS. 330,000,000/ = . To crown the m-atter, it is also most 'unlikely that 5 £cres of land at ^f that is of |O

> is my view that the Plaintiff's Taking into account all the above, it claim for special damages was grossly inflated and eim^yyerted by Pi-2.

and 'which side did not, I am of the view that both sides- applied the wrong principles in their endearour to guide court in that area. in this natter of spe dal damages 3e that as it may, regards of which side inflated their calculations

in the Estate of Shnmji Visrain and lu/rji Liarsan V. Shuulxrprasad ^aganlal 3h~tt and others Civil Appeal Mo. 25 of 1?64 (1 £65) ILA. ?a.-o 7 SO, the stone which had been illegally execrated) defunct court of Appeal for last African sitting in Kairobi ;ras faced with Z\_ (•^t had to give value under rthe head of special damages) to a a somewhat similar situation to the one at hand.

trespass ' against the Appellants/^efendanis in the High Court of Kenya. In that case, the Plaintiffs/hespondents had succeeded in an action of

leased to the former on the andrstanding that the former -.;ould quarry a certian stone iia th-t area. committed by the Appollunt/D efend, nts upon certain areas The trespass was of the Plaintiff's/hespondent's land which were outside an area the latter had

The high Court bc-inr satisfied th t the Appellantr/Dofondants had also xails'.rfully dry the stone from the arc?- outside the agreed :roa among other ^<2 things, the fe^pondents/Fluintiffs.

.. ./1C

The said. special damages were awarded in direct relation to what the Hi{di Court found to be the value of the stone which was unlawfully excavated from only a portion of the land in issue. And those damages by far exceeded of the plots in the said land. the value of one

IS

in order to dertermine the value of the marram in issue. In the above process, the High Court had used arithmetical principles which were similar to those the parties in the instant case wanted me to

On appeal, the Appellants/Defendants complained to the Court of Appeal, among other things, that wrong measures/principles had been used by the lower court, and that had resulted in a very high award in special damages. *[Q*

Among other things, the Court of Appeal finally drastically reduced the high award for special damages and in so doing had this to say at page 797 of its judgment,

this head alone in respect of ^a wrongful trespass to ^a relatively **/J** small part of Plot 37 and an even smaller part- of plot 38 are in excess of the total value of plot 37\* This cannot be right, surely the part cannot be greater than the whole ¹ But it still remains to determine what is the value to the Plaintiffs of the stone in situ.. •• I am at once struck with the fact that the damages awarded under

'i

ii

^J . . the value of the stone in situ to the Plaintiff Trill depend on whether they proposed to querry it themselves, or to lease it to someone an unsightly scar. In the first case the value would be the profit' they expected to make but have lost by reason of the trespass; and the value of the amenities lost and the consequential damage. in the second case it would be the return they would have received if they had let it out for quarrying; and in the third case it would be else- to quarry or not to quarry it at all, and thus avoid

On the facts of this case the third, form of measure is not relevant. In a claim for special damage... any event damages to be measured in this way would not, save possibly in respect of certain types of consequential damage*f* be the subject of

**I**

\* \*>

• • Also on the facts of this Plaintiffs proposed to quarry the stone themselves. Indeed the reverse is the position quarrying purposes. case, there was no suggestion that the as they had. leased part of plot 37 to the defendants for

• • • This being so their loss is not to be measured by the profit which they rai^ht have made ... their loss is to be measured by the amount of *[* O rental they would have received if the area wrongfully quarried had beenincluded in the leased area. . I!

In view of the three forms of measure which are recommended above in • the process of determing the value of whatever one may wish to determine in . in a case of this nature, the important question to ask now is which the said forms of measure would be the ri<ht one to apply in the instant case? one of

My immediate reaction to the above question is that the first two forms of measure pointed out above, are not relevant to the situation at hand, for there is no evidence on record to show that the Plaintiff intended either to excavate the marram in issue himself or to lease the spot where that was found. marram 2

And as. types of consequential damage", the damages to be measured under the third form of measure are not usually the subject of a claim for special damages. 2xS> The above leaves us now with only the thir/d form of measure. we have already seen in Visram *&* Kansan vs Bhatt (Supra) except for "certain

I am not quite sure whether the claim under consideration now, falls within the exception pointed out above.

. . ./20.

In the circumstance 3 1 a:.! of the vie;.' that it would be safer to accommodate it under the head, of general damages.

In my opinion, the two sub-heads under the Plaintiff's claim of general damages would cover all one nay wish to cover in respect of damage in case.

case the trespass in the instant case was either deliberate or reckless; and also the fact that although is not a write off and may still be developed or award to U(S,5n/= for the trespass⁵ and UGS. 25m/= sold.; I am willing to the Plaintiffa total sum of uGS.30m/= in general damages (i.e. /O Consequently, after taking into account all the circumstances of this \_S (i.e. that unlike what happened in Visram & Karsam v Bhatt (Supra) fcr hhe damage to the said land).. the lend in issue was extensively damaged, it

I also hereby order that the defendant Trill pay costs of this suit with interest at court reto from the date of Judgment till payment in full.

> E. S. Lugayizi, J u d g 3. 16/6/96.

Read before: At: 4?00 p.m.

Lb. P. K. ITsibambi for Plaintiff.

•Zhe Plaintiff present.

**I .**

Lb. Saawa for the Defendant.

:r. Ziulindwa Gourt/cierh.

P. s. Lugayizi, J U D G P.

I6/8/05.

PLAINTIFF versus STERLING INTERNATIONAL ] THE REPUBLIC Of UGANDA IN THE HIGH COURT Of UGANDA AT KAMPALA CIVIL SUIT NO. SOS OF 1953 If. BUNDLE

**l&Z.**

## DEFENDANT CIVIL ENGINEERING LTD ] DECREE IN ORIGINAL SUIT

**THIS SUIT** coming final disposal before His Lordship the Honourable Justice ^E . ^S . ^L ^u ^g ^a ^y ^I ^z ⁱ ⁱ ⁿ the presence ^o ^f Mr . ^P . ^K . Nsibambi, Counsel for the Plaintiff and ^M ^r . Saawa, Counsel for the Defendant. on for ⁱ ⁿ the presence of

## Xl-JS\_HERE. BY\_\_PJECREJEP\_\_AS.-\_EP. JLJL-Qys:

- 1. That judgment ^b ^e entered for the Plaintiff against the Defendants for: - a) Shs.30,000,000/ (Shillings Thirty Million) as general of judgment until payment in full. damages with interest at Court rate from the date

**b)** The Defendants to pay costs of this suit.

| GIVEN | under<br>my | court<br>hand<br>seal<br>of<br>and<br>thet<br>the | L*1-<br>this | bay | |-------|-------------|---------------------------------------------------|--------------|-----| | of | | 1 9<br>, | | | | | | | | | | | | | | | | | | I<br>REGISTRAR<br>DEPUTY<br>CH<br>EF | | |

**WE APPROVE:**

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<u>Drawn & Filed by:</u><br>Sebalu and Lule Advocates IPS Building, 4th Floor<br>P. O. Box 2255 KAMPALA.

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