[2025] UGHC 307

## **THE REPUBLIC OF UGANDA**

#### **IN THE HIGH COURT OF UGANDA AT LUWERO**

#### **HCT-17-CV-CA-0027-2023**

## **(ARISING FROM NAKASONGOLA CHIEF MAGISTRATE'S COURT CIVIL SUIT NO. 005 OF 2020)**

#### **KAHIGWA REHEMA………………APPELLANT**

**V**

# **KAHIJI IDI…………………………….. RESPONDENT**

### **BEFORE LADY JUSTICE HENRIETTA WOLAYO**

### **JUDGMENT**

#### Introduction

- 1. By a memorandum of appeal filed on 30.4.2024, the appellant Kahigwa appealed the judgment of Tibayeita Edgar Tusiime Ag. Senior magistrate grade one dated 23.2.2023 on seven grounds of appeal to which I shall revert later in the judgment. - 2. On 18.6.2024, the appeal came up for hearing when parties were given a schedule to file written submissions with which they complied. I have carefully considered submissions of both counsel.

#### Background facts

- 3. By a plaint filed on 31.8.2020, Kahigwa sued the defendant Kahiji in the tort of nuisance by animals. It was her claim that on three occasions between 2016 and 2020, the defendant's cattle invaded her gardens and destroyed her crops. The first time was in the night of 10.10.2016 when the cows destroyed her two acres of maize at Kaboja, Wabigalo, Wabinyonyi sub-county, Nakasongola district valued at 910,000/ by Katongole Emmanuel, the agricultural officer. - 4. On the second occasion in the night of 6.5.2018, the defendant's cows entered the plaintiff's garden at the same place and destroyed ¼ acre of maize.

- 5. On the third occasion in the night of 2.1.2020, the defendant's cows entered the plaintiff's garden at the same place and destroyed maize, sweet potatoes, and sugarcane. Valued by assistant agricultural officer Namutayi Francis at 3,720,000/. - 6. The plaintiff claimed that as a result of this persistent nuisance, she confiscated the defendant's cows and alerted local authorities. She prayed for special, exemplary and general damages for the loss suffered as well as mental anguish and psychological torture. - 7. In his written statement of defense and counterclaim filed on 3.12.2020, the defendant denied the claims and averred that the plaintiff had unlawfully detained his cows without justification. Furthermore, that he is not liable in negligence because at the time of the alleged nuisance, they were under the control of Luyima Geoffrey,the second counter claimant, an independent bailee of the cows. He further counterclaimed for two heifers confiscated by the plaintiff whose value he put at 6,000,000/. - 8. After hearing both parties, the learned magistrate entered judgment for the counterclaimant Kahiji in the following terms: - i. The plaintiff/first counter-defendant shall immediately deliver to the defendant his cow or in the alternative, she shall pay the counter claimant 1,500,000/ as compensation for the cow. - ii. The second counter defendant (Luyima Geoffrey) shall pay the counter claimant 1,500,000/ as compensation for his one cow which he did not return to him. - iii. The counter defendants shall pay costs of the suit. - 9. Dissatisfied with the judgment, the plaintiff Kahigwa appealed the judgment hence this appeal.

## Duty of the first appellate court.

- 10. It is the duty of this court as a first appellate court to re-evaluate the case by subjecting the evidence presented to the trial court to a fresh and exhaustive scrutiny before coming to its own conclusion. - 11. **In Father Narsensio Begumisa and 3 Others v Eric Tibebaga SCCA 17 of 2002; [2004] UGSC 18 (22 June 2004) Ulii,** court observed that it is a well-settled principle that on a 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 due allowance for the fact that it has neither seen nor heard the witnesses, it must weigh the conflicting evidence and draw its own inference and conclusions.

# Burden of proof in the trial court

- 12. During the trial, the burden of proof was on the plaintiff to prove her case while both parties had a burden to prove the facts they alleged, on a balance of probabilities. - 13. Two issues were framed at the trial: - a) Whether the plaintiff is entitled to compensation - b) Remedies.

# Resolution of the appeal.

# **Ground one**

*The learned trial magistrate erred in law and in fact when he failed to award the appellant compensation for the destroyed crops thereby arriving at a wrong decision.*

#### **Ground two**

*The learned trial magistrate erred in law and in fact when he failed to properly appraise the law on departure form pleadings and thereby arrived at a wrong decision.*

#### **Ground four**

*The learned trial magistrate erred in law and in fact when he failed to admit the valuation report of the destroyed crops and thereby arrived at a wrong decision.*

#### **Ground five**

*The learned trial magistrate erred in law and in fact when he failed to accord the appellant a fair hearing by not recording all evidence and thereby occasioned a miscarriage of justice.*

- 14. The **Osborn's Law Dictionary Eighth Edition** defines a private nuisance as *'A tort consisting of (1) any wrongful disturbance or interference with a person's use or enjoyment of land or of an easement (2) the act of wrongfully causing or allowing the escape of things into another person's land , e.g. water, smoke, smell, fumes, gas, noise, heat, vibrations, electricity, disease-germs, animals, and vegetation'.* - 15. The often cited case of **Rylands v Fletcher (1866)L. R 1Ex.265 at 279-280** established the rule that

*"The person whose grass or corn is eaten by escaping cattle of his neighbor, or is invaded by the filth of his neighbor or whose mine is flooded by the water from his neighbour's reservoir, or whose cellar is invaded by his neighbour's privy, or whose habitation is made unhealthy by the fumes and noisome vapours of his neighbour's alkali works is damnified without any fault of his own and it seems but reasonable and just that the neighbor , who has brought something on his own property which was not naturally* *there, harmless to others so long as it is confined to his own property, but which he knows is mischievous if it gets to the neighbor's, should be obliged to make good for damage which ensues if he does not succeed in confining it to his own property."*

- 16. In the instant case, the appellant claimed that on more than one occasion, her neighbours' animals damaged her crops and food which facts if proved, disclose a private nuisance as contemplated by the rule in **Rylands v Fletcher**. She therefore had a duty to prove these facts on a balance of probabilities. - 17. Kahigwa Rehema Akiiki, aged 68 years and Kahiji Idi were neighbours in Kaboja, Wabigalo, Nabinyonyi sub-county, Nakasongola district. In 2016, Kahiji's cows entered her garden and destroyed her crops. It was her testimony that whenever this happened, she would impound the cows and take them to the sub-county but they would be released. The last time Kahiji's cows destroyed her crops was when they ate one acre of stevia; ¼ of rosemary; an acre of sweet potatoes. She had spent 2,500,000/ study, plant and grow the herbal crops. Additionally, she spent 3,000,000/ on clearing the bush, ploughing, planting and weeding. She also harvests 80 bags of maize. Kahigwa admitted impounding one of the defendant's cow which she took to Masindi. - 18. She was supported by PW2 Namutayi Francis an agricultural officer attached to Nakasongola Town Council who assessed the damaged crops in the presence of the LC1 chairman. He found that stevia, maize, sweet potatoes and other crops had been destroyed. His report is attached to the plaint. The report for unknown reasons was not tendered in evidence given that the said report was received by the court on 31.8.2020. What is interesting is that both parties were represented by counsel but the proceedings make no reference to admission of documentary evidence even when the expert witness Namutayi testified. The report dated 7.1.2020 which I will rely upon since it is on record, documents Kahigwa as the

complainant and Kahiji Idi as the defendant. PW2 Namutayi found that two acres of maize; 200 plants of stevia; and tomatoes were destroyed. He placed the value of the destroyed crops at 3,720,000/.

- 19. Additionally, another report dated 17.10.2016 by agricultural officer Katongole Emmanuel shows that he visited Kahigwa's garden in Kabojja village on 12.10.2016 and 2.5 acres of maize valued at 910,000 UGX had been destroyed. He recommended that Kahiji fences his land. For the reason that the expert did not testify in court to own it, I will not rely upon it as proof of special damages although its relevance lies in demonstrating a pattern of the respondent's animals causing havoc to the appellant's crops. - 20. The other witness who supported Kahigwa's claim was Kabera Charles LC1 chairman of Kaboja. He confirmed that Kahiji's cows had been eating Kahigwa's crops and he would intervene each time to promote reconciliation. It was his testimony that at one time, Kahiji compensated Kahigwa 30,000 UGX. In 2019, the cows again ate Kahigwa's crops and this time she impounded one cow that had been weaned except that no one claimed it. Later, one Kamanzi came to claim it but he never returned. On this occasion, Kahigwa made a complaint to the police and Kabera recorded a statement. Worthy of note is that Kabera confirmed that the agricultural officer valued the damage done to the crops. - 21. The other witness called by the appellant was PW4 Luyima Godfrey, her son who lives about one mile away while the Kahiji and his mother are separated by one acre. According to Luyima, although Kahiji whom he described as his uncle had given him six cows in 2019 to herd and none of them or even entered his mother's garden. Luyima heard about the impounded cow when Kahiji called him to recover the cow but he declined and instead, he returned Kahiji's cows. - 22. In a nutshell, the appellant proved on a balance of probabilities that Kahiji's cows destroyed her crops in 2019 which damage was assessed by Namutayi the agricultural officer at 3,720,000UGX. - 23. Regarding the damage to crops in 2016, this was proved by the appellant and Kabera both of whom attested to the tendency of the defendant's animals to destroy the appellant's crops which speaks to an intentional conduct that borders on criminal trespass and which entitles the appellant to general damages for the tort of nuisance. - 24. The appellant adduced overwhelming evidence of destruction of her crops by Kahiji's animals, not once but at least twice as pleaded in her plaint, facts which were proved not only by documentary evidence but also by oral testimonies of Namutayi the expert witness; the LC1 chairman Kabera who received regular reports of similar incidences by Kahiji against Kahigwa and the appellant herself. It therefore beats my understanding that the learned magistrate found that the appellant had not proved that her crops were damaged. Surprisingly, the trial magistrate took issue with Namutayi's valuation because it was done in the absence of the defendant. In fact, Namutayi in his report dated 7.102020, records that the assessment was done in the presence of PW3 Kabera LC1 chairman. - **25.** The trial magistrate placed a lot of emphasis on departure from pleadings because the appellant gave values of destroyed crops which differed from what she pleaded. I am not persuaded by the submissions of counsel for the respondent that the appellant ought to have applied to amend the plaint under **Order 6 rule 19 of the Civil Procedure Rules.** - 26. As submitted by counsel for the appellant, this is not departure from pleadings but a question of whether the appellant had proved special damages as claimed. Moreover, the expert gave clear evidence on the value of the crops destroyed in 2019 which is captured in a report dated 7.1.2020. The reference to 2020 in the

plaint should be construed as reference to the date the assessment was done not the date the crops were destroyed which was attested to by Kahigwa and Kabera as 2019. In fact, the respondent in his evidence put the date when the crops were damaged and when his cows were impounded as 23.12.2019 although the appellant admitted to only one cow that was impounded. The case of **Acaa v Okello (Civil Appeal 0053 of 2015) 2018 UGHCLD 75 ( 6 December 2018)** cited by counsel for the appellant is instructive on this regard.

27. Moreover, even if special damages had not been specifically proved, the appellant proved she suffered a nuisance that resulted in monetary loss and is therefore entitled to general damages. For the avoidance of doubt, I have found that the appellant proved special damages resulting from the nuisance in 2019. Therefore, the learned magistrate grade one erred in law and in fact when he found that the appellant had not proved damage to her crops. He further erred in fact and in law when he rejected Namutayi's testimony as an expert witness on the grounds that the appellant had departed from pleadings whereas not. Grounds one, two, four and five succeed.

### **Ground three**

*The learned trial magistrate erred in law and in fact when he failed to properly evaluate the evidence adduced by PW4 Luyima thereby occasioning a miscarriage of justice.*

### **Ground seven**

*The learned trial magistrate erred in law and in fact when he ignored the grave contradictions in the evidence adduced by the respondent and his witnesses thereby occasioned a miscarriage of justice.*

#### **Ground six**

*The learned trial magistrate erred in law and in fact when he awarded the respondent both costs of the suit and counterclaim thereby occasioning a miscarriage of justice.*

- 28. According to the respondent Kahiji, he gave Luyima ten cows from the kraals of his two wives Bundi Mastila DW3 and Mukakatera Justine DW2. It was the respondent's case that he gave Luyima these cows in December 2019 and on 23.12.2019, the appellant impounded two calves. The respondent counter claimed against Luyima for the two calves but Luyima denies the claims. - 29. From my evaluation of the evidence, it is clear that while the respondent admits that the appellant's crops were damaged by his cows, he pins liability for the damage on Luyima. As testified by Luyima, the appellant and respondent are close neighbours separated by three acres apart while he lives one mile away from them. I am mindful of the respondent's testimony that Luyima is his neighbor on one side while the appellant is a neighbor on the other aside. What is material is that the respondent admits the appellant who sued him, is his neighbour. - 30. DW 5 Okema Jackson testified that Luyima returned only nine cows but two heifers were not returned. This witness was not resident in either of the homes of the respondent who had two wives so his testimony is of little evidential value. Worthy of note is that DW3 Bundi Mastula one of the respondent's wives, testified that Luyima returned eight cows and two calves. This was after she had confirmed in examination in chief that the respondent gave Luyima 10 cows in total. The fact that the co-wife DW2 Mukakatera Justine testified that Luyima did not return all the cows without saying how many speaks to a defense case that is full of inconsistencies. Evidently, the respondent who confessed to having a long standing dispute with the appellant who was once his friend was determined not compensate her for the loss she suffered by dint of the respondent's animals that he deliberately unleased into her gardens.

- 31. Going by the standard of proof in civil cases, it is the appellant who proved her case on a balance of probabilities in light of the major inconsistencies in the respondent's case. She proved that the respondent's cows damaged her crops in December 2019, the damage was assessed at 3,720,000UGX by the agricultural expert and she impounded one cow in exercise of a right of lien in customary law. - 32. On the other hand, while admitting that his cows damaged the appellant's crops, the respondent failed to prove that the cows that damaged the appellant's crops were in fact in the care of Luyima which Luyima flatly denied as he lives far from the appellant's gardens. Moreover, the respondent's witnesses contradicted each other on the number of cows returned by Luyima after the incident with one of them confirming he returned all the ten cows he had taken for herding which meant the cow that the appellant impounded was not among those Luyima had been given by Kahiji to herd. - 33. I find that the learned magistrate erred in fact and in law when he found that Luyima was liable for the respondent's missing cow when in fact it had been impounded by the appellant in exercise of a right of lien for her destroyed crops. - 34. The learned trial magistrate erred in law and in fact when he entered judgment against the appellant and her son Luyima on the counterclaim and ordered each of them to compensate the respondent one cow each. This was contrary to the evidence which had showed that the appellant impounded one cow while Luyima impounded none. - 35. In sum, the magistrate erred in law and in fact when he failed to properly evaluate the evidence and arrived at a wrong decision. As all grounds of appeal succeed, the appeal is accordingly allowed.

Orders

- 36. Having found that the learned trial magistrate arrived at a wrong conclusion, his judgment and orders will be set aside and substituted with the following orders: - i. The respondent Kahiji Idi shall pay the respondent Kahigwa Rehema special damages of 3,720,000/ for the crops damaged by the respondent's cows in December 2019. - ii. For the deliberate torts of nuisance by the respondent's animals, the respondent shall pay the appellant general damages of 6,000,000/. - iii. The appellant Rehema shall return the respondent's cow impounded in 2019 and in default, its value placed at 2,000,000/, shall be offset from the general damages in (ii) above. - iv. The special damages and general damages shall carry interest of 8% per annum from the date of judgment until payment in full. - v. The respondent Kahiji shall pay the appellant Kahigwa Rehema costs of this appeal and the lower court.

# **DATED AT LUWERO THIS 4TH DAY OF APRIL 2025.**

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# **LADY JUSTICE HENRIETTA WOLAYO**

Legal representation Odongo & Co. Advocates for the appellant Tayebwa, Sserwadda & Co. Advocates for the respondent.