[2025] UGHC 220

#### **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MASAKA CIVIL APPEAL NO 73 OF 2022**

**(***Arising from Chief Magistrate Court of Rakai at Kakuuto Civil Suit No. 001 of 2020***)**

#### **1. SSENONO KASIM**

**2. NABAYUNGA JANE:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANTS**

**VERSUS**

**MUTABAAZI JOHN::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT**

#### **Before: HON JUSTICE LAWRENCE TWEYANZE**

#### **JUDGMENT**

#### **Introduction.**

1. This is an appeal in which the Appellant being dissatisfied with the Judgment and orders of H/W Muinda Tadeo, Ag. Principal Magistrate Grade One at the Chief Magistrates Court of Rakai at Kakuuto under Civil Suit No.001 of 2020, brought this appeal.

#### **Brief Background to the Appeal.**

- 2. The background is that the Respondent / as Plaintiff instituted Civil Suit No. 011/2019 against the Appellants /Defendants seeking for orders that he is the rightful owner of the suit Kibanja and an order for vacant possession against the 1st Appellant and a declaration that the Kibanja sale between the 1st and 2nd Appellants was null and void and the same should be cancelled. The Respondent/Plaintiff averred that on the 11th day of July 2008, he purchased a Plot of land/ Kibanja measuring 100ft by 100ft from the 2nd Defendant (2nd Appellant), The 2nd Defendant sold another portion next the previously sold to the Plaintiff on the 5th of November 2009 measuring 23ft by 100ft at a consideration of UGX 1,000,000/= for land situate at Kangabwa, Kakuuto Sub - county in Kyotera District. Thereafter the 2nd Defendant introduced him to his Father who sold his interest to the Plaintiff. That he thereafter took possession, planted bananas, put a Grinding Mill and that the 1st Defendant unlawfully cut his crops. - 3. The Appellants/Defendants denied the allegations in the Plaint and averred: That the 2nd Defendant sold a Plot of Kibanja to the Plaintiff in 2008 measuring 100 by 100fts at UGX 2,000,000 to which the Plaintiff is in occupation and utilisation; That on 15th August 2012, the 2nd Defendant sold another Plot of Kibanja to the 1st Defendant measuring 23ft by 100ft hereinafter referred to as the suit Kibanja at UGX 1,000,000 to which the 1st Defendant is in occupation, possession and utilisation; That the 2nd

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Defendant has never sold the suit Kibanja as an additional Plot to the Plaintiff; That the purported Kibanja sale agreement attached to the Plaint as is a forgery as far as the signature on the same is not a true signature of the 2nd Defendant compared with other agreements; That the 2nd Defendant has never introduced the Plaintiff to the Landlord as the owner of the suit Kibanja as the same was sold to the 1st Defendant and that he is not a trespasser on suit land/Kibanja.

- 4. That the Plaintiff had ever commenced criminal proceedings vide Criminal case No. 689 of 2013 against the 1st Defendant in Kalisizo Court for criminal trespass and malicious damage to property and the same was dismissed on 5th day of January 2016; That the Plaintiff fraudulently went to the Landlord, a one Polikalipo Matovu who is the 2nd Defendant's Father, a blind person without the 2nd Defendant's knowledge or approval and executed an agreement with the blind person to whom the 2nd Defendant was acting on his behalf as his agent. That the 1st Defendant is not a trespasser on the suit Kibanja having duly purchased the same from the 2nd Defendant and immediately took possession, occupation and utilisation of the suit land/Kibanja; That the 2nd Defendant only sold the suit Kibanja to the 1st Defendant and that she never sold it to the Plaintiff and that the purported agreement by the Plaintiff is a forgery; That the Defendants have never frustrated efforts by the Plaintiff to settle this matter amicably but the Plaintiff opened up a criminal case for trespass to land and malicious damage to property which was dismissed by Court at Kalisizo. - 5. The Defendants by way of Counter Claim averred that the 2nd Defendant duly sold the suit Kibanja to the 1st Defendant and that the 1st Defendant is the rightful owner of the same and that the Plaintiff forged the agreement of the suit Kibanja to fraudulently claim interest in it. That there are no any acts of trespass committed or any kind of fraud. The Trial Magistrate Court found in favour of the Respondent/Plaintiff. The Appellants being dissatisfied with the said Judgment delivered on the 2nd November 2022 filed this appeal.

# **The Grounds of Appeal.**

- 6. The Appellants raised seven (7) grounds of appeal in their Memorandum of Appeal namely that: - *1. That the Learned Trial Magistrate erred in law and fact when he failed to properly evaluate the evidence on record as a whole thereby arriving at a wrong conclusion which led to a miscarriage of justice.* - *2. That the Learned Magistrate erred in law and fact when he held that there was a valid sale of the suit Kibanja between the 2nd Appellant and the Respondent* - *3. That the Learned Trial Magistrate erred in law and fact when he held that the Respondent is the rightful owner of the suit Kibanja measuring 23ft by 100ft.*

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- *4. That the Learned Trial Magistrate erred in law and fact when he held that the 1st Appellant is a trespasser on the suit Kibanja.* - *5. That the Learned Trial Magistrate erred in law and fact when he nullified the sale agreement between the 1st and 2nd Appellants and declared the same null and void.* - *6. That the Learned Trial Magistrate erred in law and fact when he awarded excessive general damages and interest without any legal basis.* - *7. That Learned Trial Magistrate erred in law and fact when he committed several procedural errors that led to a miscarriage of justice.*

# **Representation and hearing.**

7. The Appellants were represented by M/s Sanywa, Wabwire & Co. Advocates while the Respondent was represented M/s Mbeeta, Kamya, & Co. Advocates. The appeal was heard by way of written submissions and both parties filed their respective submissions which have been considered.

# **Duty of the first appellate Court.**

8. The duty of a first Appellate Court is to scrutinize and re-evaluate the evidence on record and come to its own conclusion and to a fair decision upon the evidence that was adduced in a lower Court. **See:** *Section 80 of the Civil Procedure Act Cap 282 (Revised Edition 2023)*. This position has also been re-stated in a number of decided cases like **J.***F. Zaabwe vs Orient Bank Ltd CACA No. 4 of 2006*. In case of conflicting evidence, the appellate Court has to make due allowance for the fact that it has neither seen nor heard the witness, it must weigh the conflicting evidence and draw its own inference and conclusions (*See Lovinsa Nankya Vs Nsibambi (1980) HCB 81).*

# **Determination of the Appeal.**

- 9. I have read the record of the lower Court, the judgment, pleadings, witness statements and submissions by the parties to this appeal. I have also read the authorities cited. This being a first appeal, Court is required under Section 80 of the Civil Procedure Act Cap 282 (Revised Edition) to scrutinize and re-evaluate the evidence on record and come to its own conclusion and to a fair decision upon the evidence that was adduced in a lower Court. See: *F. Zaabwe vs Orient Bank Ltd CACA No. 4 of 2006* (supra). I shall therefore proceed to reappraise the evidence and come to my own conclusion as required by law. - 10. Grounds 1 and 7 of appeal appear too general, as they were framed as follows;

*That Learned Trial Magistrate erred in law and fact when he failed to properly evaluate on record as a whole thereby arriving at a wrong conclusion which led to a miscarriage of justice.*

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*That Learned Trial magistrate erred in law and fact when he committed several procedural errors that led to miscarriage of justice.*

- 11. Order 43 rule 1(2) of the Civil Procedure Rules provides that the "Memorandum of appeal shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative; and the grounds shall be numbered consecutively". It is thus an established position of the law that a ground of appeal must specify in what way and what specific aspect of the decision being appealed against was wrongly decided by the Trial Court. In *Ronchobhai Shivabhai Patel Ltd vs. Henry Wambuga & Another, SCCA No. 06 of 2017*, the ground of appeal was worded as "the learned Justices of the Court of Appeal erred in law and in fact when they failed to evaluate evidence on record and they arrived at a wrong conclusion". *Mugamba JSC* held that "this ground is too general and does not specify in what way and in which specific areas the learned Justices of Appeal failed to evaluate the evidence. It does not set out the particular wrong decision arrived at by the learned Justices of Appeal." The Court thus struck out the ground as being offensive to the rule 82(1) of the Judicature (Supreme Court) Rules which is in *pari materia* with rule 1(2) of Order 43 of the CPR. - 12. In this case, grounds 1 and 7 of appeal almost bears the same defect. Ground 1 does not disclose in which way the Trial Court did not evaluate the evidence on record and which specific evidence. Ground 7 does not disclose which exact procedural errors committed by the Trial Magistrate. Grounds 1 and 7 are too general and they do not point to a particular wrong in the decision of the Trial Court and they do not raise any legitimate complaint in light of the decision of the Trial Magistrate. In the circumstances, grounds 1 and 7 of the appeal are struck out for being offensive to the applicable law of appeals, but only grounds 2, 3, 4, 5, and 6 stand and shall be resolved. - 13. Both Counsel for parties argued grounds 2 and 5 together, grounds 3 and 4 together and ground 6 separate. I will adopt the same in resolving this appeal.

# **Grounds 2 and 5.**

*That the Learned Magistrate erred in law and fact when he held that there was a valid sale of the suit Kibanja between the 2nd Appellant and the Respondent*

*That Learned Trial Magistrate erred in law and fact when he nullified the sale agreement between the 1st and 2nd Appellants and declared the same null and void.*

14. Counsel for the Appellants submitted that PW1 the Respondent herein testified that he first bought land measuring 100ft by 100ft from the 2nd Appellant at UGX 2,500,000 and that the 2nd Appellant drafted the sale agreement herself. That PW1 further

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testified that he bought the second piece of land the suit Kibanja herein measuring 23ft by 100ft from the 2nd Appellant through PW2 Wasajja Fred at UGX 1,000,000. That PW2 Wasajja Fred stated that he bought the suit Kibanja on behalf of PW1 at UGX 1,000,000 and paid initial deposit of UGX 300,000 and that the agreement was drafted by the 2nd Appellant (Dw2) and that there was no any witness. That DW2 Nabayunga Jane the 2nd Appellant herein stated that she has never sold the suit Kibanja measuring 23ft by 100ft to the Respondent and that she has never drafted or signed that sale agreement dated 5th November 2009 and that the same is a forgery.

- 15. That DW2 further stated that she only sold the Respondent/ Plaintiff Kibanja measuring 100ft by 100ft and wrote the agreement herself and the said agreement is dated 11th/07/2008. That DW2 further stated that she sold the suit Kibanja measuring 23ft by 100ft to the 1st Appellant and wrote the agreement herself and the said agreement is dated 15th August 2012 and exhibited as DE1. That Court issued an order dated 6th/06/2022 requesting the examination of land Sale Agreement dated 11th /07/2008 and one stated 5th/11/2009 by a hand writing Expert as the Respondent claimed that both were written by the 2nd Appellant (DW2) to which the report and testimony of the Forensic Document Examiner one Hakashimana Clare indicated that they were not written by the same person. That the expert report was exhibited as DEX No. 5. Counsel submitted that the opinion of the expert witness Hakashimana Clare DW4 is of much relevance and that the report corresponded with the evidence i.e. of DW2 the 2nd Appellant herein when she said that she never authored or executed an agreement dated 5th/11/2009 in respect of the suit Kibanja to the Respondent - 16. That the agreement dated 5th/11/2009 was forged as per the testimony of DW2, the 2nd Appellant who disowned it supported by the evidence of DW4 Hakashimana Clare Forensic Expert, and that there is no agreement enforceable at law. That Court should reject the acknowledgements of the Respondent/ Plaintiff as they were in respect of the agreement dated 11th/07/2008 paying its balance in installments for land measuring 100ft by 100ft and not the suit Kibanja. That Court should reject the evidence of PW5 that she gave un documented UGX 500,000 in respect of suit Kibanja to the 2nd Appellant on behalf of the Respondent/Plaintiff for lack of documentary proof. That PW2 Wasajja Fred stated that he retained the original agreement of 5th/11/2009 which he gave to the Respondent/Plaintiff but he never produced the original during the hearing and examination of documents but alleges that 2nd Appellant stole it without any evidence in form of a police report and/ or a complaint. - 17. Counsel for the Appellant further submitted that there was no valid sale of the suit Kibanja measuring 23ft by 100ft by the 2nd Appellant to the Respondent/Plaintiff as there was no any transaction carried out in between them whatsoever but there was a valid sale of suit Kibanja by 2nd Appellant to the 1st Appellant as per DEX NO.1. Counsel concluded that the Trial Magistrate failed to properly evaluate evidence on

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record when he held that there was a valid sale of the suit Kibanja between the 2nd Appellant and the Respondent and when he nullified the sale agreement between the 1st and 2nd Appellants and declared the same null and void.

- 18. For the Respondent, it was submitted that at Trial, a handwriting expert (DW4) opined that both Agreements (one dated 7th November 2008 and the other dated 5th November 2009) were contested. That in her opinion, both documents were not authored by the 2nd Appellant (2nd Defendant). However, it had already been undoubtedly established that the Agreement dated 7th November 2008 was written by the 2nd Appellant basing on her own admission. She had never denied authoring that particular Agreement. That the major issue was with the Agreement dated 5th November 2009 which dealt with the suit Plot measuring 23ft by 100ft. That the 2nd Appellant claimed this was a forgery and therefore made a handwriting expert's opinion relevant. That the handwriting expert (DW4) however, strangely examined the two Agreements without a separate other sample signature and handwriting piece or document of Nabayunga Jane (2nd Appellant) and therefore could not avail Court with a conclusive position on whether the Agreement dated 5th November 2009 was a forgery or not. That Learned Trial Magistrate found the expert's report or testimony unhelpful to the controversy. - 19. That the 2nd Appellant's dishonesty was also inferred from the Agreement she had executed with the 1st Appellant. That the piece of land that the 2nd Appellant admitted to have sold to the Respondent (in the Agreement dated 7th November 2008) measuring 100ft by 100ft, borders the suit Plot stated by the 2nd Appellant to be measuring 23ft by 100ft (but was found to measure 21.5ft by 100ft at locus in quo). That the fact that these two pieces of land border each other would mean that the Respondent would be indicated as the 1st Appellant's neighbour in the latter's Agreement. That the 1st Appellant's agreement dated 15th August 2012 does not indicate the Respondent as his neighbour on that side but rather shows the 2nd Appellant as his neighbour on that side yet this Agreement was made years after the undisputed sale of the 100ft-by-100ft Plot to the Respondent That PW5 (Zalwango Veroni) testified that she gave UGX. 500,000/= to the 2nd Appellant in 2009 which the 2 nd Appellant denied receipt.

# *Analysis.*

20. The Trial Magistrate found that there were all requirements to execute a contract of sale of suit Plot on the 5th day of November 2009 between the Plaintiff and the 2nd Defendant. He rejected the evidence of DW4, that it was not helpful since she had been instructed to examine the handwriting and the signature but the expert witness only concentrated on the signature and the Trial Magistrate found that there was no evidence led by the Appellants/Defendants to prove that the said agreement was forged. The Trial Magistrate further noted that the 1st Defendant's agreement had Nabayunga Jane as his neighbour and at locus, the 2nd and 1st Defendants (Appellants) failed to show that portion to Court. That the 2nd Defendant could not identify all the 1st Defendant's' neighbours to the Plot.

- 21. *Sections 2 and 10(1) of the Contracts Act of 2010* define a contract as an agreement made with the free consent of parties with capacity to contract, for a lawful consideration and with a lawful object, with the intention to be legally bound. - 22. Generally, the Plaintiff in the lower Court, and in this Court must show: (i) the existence of a contract and its essential terms. A legal contract is an agreement between two parties that creates mutual, legally enforceable obligations. A contract can be in writing, be made orally, be inferred by conduct or formed using a combination of all three. A valid contract requires that all the following exist between the parties: (i) communication of an offer; (ii) communication of mutual acceptance of the terms; (iii) capacity to contract; (iv) valid consideration; (v) legality of the subject matter; and (vi) mutual intent that the contract be legally binding. (*See Pimer vs Bakayana and 4 Others (Civil Suit 319 of 2019) [2022])*. - 23. The most basic rule of contract law is that a legal contract exists when one party makes an offer and the other party accepts it. The core of a legal contract is the agreement between the parties. It is trite that multiple writings relating to each other can be combined to show that a single contract exists. Any memorandum or writing that contains the necessary elements will suffice. (See *Green Boat Entertainment Ltd Vs City Council of Kampala (HCT-00-CC-CS 580 of 2003) [2007]***)**. - 24. In the case before me, the Respondent claimed that there was a valid sales agreement and on the other had the 2nd Appellant denied it and claimed it was a forgery. The Appellant's/Plaintiff's claim against the Defendants/Appellants was based on land purchase/agreement dated 5th November 2009, that was marked by the Trial Court as P. EK. The disputed agreement was executed between the Plaintiff and the 2nd Defendant wherein the 2nd Defendant sold to the Plaintiff at UGX 1000,000/- and the purchaser paid 300,000/- as a deposit for the suit Plot as per the Court record. By that agreement, it is clear that the 2nd Appellant had sold the suit Plot to the Respondent a land payment agreement dated 22nd March 2013, it is indicated that the Plaintiffs paid all the balance and there was nothing the 1st Defendant claimed from them. The Respondent/Plaintiff through the testimonies of PW1, PW2, PW3, and PW4 led evidence to prove that the 2nd Appellant had sold the suit Plot to the Respondent on the 5th November 2009. Since the 2nd Appellant/Defendant averred that the said agreement was forgery, she bore the evidential burden to prove the said forgery as alleged but at the Trial Court, the 2nd Appellant did not prove any forgeries, and thus the arguments of forgery was not supported by sufficient evidence.

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- 25. From the above re-evaluation, the parties entered into a contract with their free will, they had capacity to make a contract and the presented agreements satisfy the requirements of a valid contract between the2nd Appellant and the Respondent The agreement that was marked PEX. K was entered into by the parties meet all the prerequisites of a contract and amounted to legally enforceable and binding Agreements. There was therefore sufficient material to establish that there was a valid sale of the suit Kibanja between the 2nd Appellant and the Respondent vide agreement dated 5th November 2009, and therefore any other subsequent sale by the 2nd Appellant thereafter would be invalid. - 26. The common law principle of *nemo dat quod non habet* has long held that a person cannot convey a superior title to the one already held. In *Nasula Akongo vs. Oyat Francis Otoo, Court of Appeal Civil Appeal No. 0068 Of 2011*, the Court of Appeal of Uganda at pages 10 to 12 held that: "*A purchaser of land acquires title from the seller of the land he/she buys. A seller can only pass a title to a purchaser if he/she has one. Where he/she has none, then nothing passes to the purchaser…."* - 27. Accordingly, one can sell only what one owns or is authorised to sell, and the buyer can acquire no more than what the seller can transfer legally. Having sold the suit Kibanja to the Respondent/Plaintiff in 2009, the 2nd Appellant/2ndDefendant ceased to have any interest in therein. She could not continue being owner of the suit Kibanja after selling the same to the Respondent The 2nd Appellant could not lawfully or validly sell and transfer any interest in the suit Kibanja to the 1st Appellant/1st Defendant or any other person. The 1st Appellant/ 1st Defendant, therefore, did not acquire any valid interest in the suit Kibanja. - 28. In the case of *Serunjogi vs. Katabira |1988-90] HCB 148* it was held, inter alia, that when a contract of sale of land is concluded, the equitable interest in the land passes to the purchaser immediately. That in equity, the vendor is regarded as a trustee holding the land for the purchaser and it is in such instances that the Courts are prepared to order specific performance. As such, title in immovable property passes to the purchaser from the vendor upon completion of the contract of sale and the vendor holds the land as trustee for the purchaser. In *Issaka Semakula vs. William Setimba HCCA No. 5 Of 2013* it was held, inter alia, that the vendor only remains in possession in trust for the purchaser because property in the land passes to the purchaser upon the vendor paying the purchase price or part of it. - 29. Having re-evaluated the evidence and found that there was a valid sale of the suit Kibanja between the 2nd Appellant and the Respondent, It is clear that any subsequent sale by the 2nd Appellant was illegal since the 2nd Appellant had ceased to have any powers to sell the suit Kibanja which she had already sold to the Respondent, and was already a property of the Respondent. In my view, the Learned Trial Magistrate properly reached a right conclusion that the there was a valid sale of the suit Kibanja

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between the 2nd Appellant and the Respondent and he properly declared the sale agreement between the 1st Appellant and the 2nd Appellant null, void and of no legal effect. Grounds 2 and 5 of appeal fail.

## **Grounds 3 and 4 of Appeal.**

*That Learned Trial Magistrate erred in law and fact when he held that the Respondent is the rightful owner of the suit Kibanja measuring 23ft by 100ft.*

*That Learned Trial Magistrate erred in law and fact when he held that the 1st Appellant is a trespasser on the suit Kibanja.*

- 30. Counsel for the Appellants submitted that DW1 Ssenono Kassim, the 1st Appellant herein testified that he bought the suit Kibanja measuring 23ft by 100ft from the 2nd Appellant and made an agreement exhibited as DEX No.1 (see paragraphs 3 & 7 of witness statement). That DW2 Nabayunga Jane, the 2nd Appellant testified that she sold the suit Kibanja measuring 23ft by 100ft to the 1st Appellant at UGX 1,000,000 and she denied having sold it to the Respondent. That DW2 Nabayunga Jane the 2nd Appellant testified that she sold the Respondent a Plot measuring 100ft by 100ft and that wrote the agreement dated 11th/07/2008 but denied writing / knowledge of the agreement of Plot 23ft by 100ft dated 11th/09/2009 with the Respondent. - 31. That DW4 Hakashimana Clare, the hand writing expert examined the land sale agreement dated 11th/07/2008 and 11th/09/2009 and concluded with clear reasons that the agreements were not authored by the same person which corroborated with evidence of DW2, the 2nd Appellant, that she never authored and/ or signed the agreement dated 11th/09/2009 in respect of Plot measuring 23ft by 100ft. The report was admitted and exhibited as DEX-5. That PW1 Mutaabazi John the Respondent herein testified that he was not present during land sale agreement of 11th/09/2009 as he allegedly bought through PW2 Wasajja Fred. That PW2 Wasajja Fred testified that there was no witness to the land sale agreement of 11th/09/2009. It was not even exhibited. Counsel concluded that the 1st Appellant is the rightful owner of the suit Kibanja measuring 23ft by 100ft having duly bought it from the 2nd Appellant at a consideration and took possession and thus he is not a trespasser. - 32. For the Respondent, it was submitted that the Learned Trial Magistrate was guided by several pieces of evidence to wit; A copy of the sale agreement dated 5th/11/2009 showed the 2nd Appellant selling the suit Kibanja to the Respondent was presented. That the 2nd Appellant denied ever executing the said agreement which is not shocking since she had later on fraudulently re-sold the same piece of land to the 1st Appellant. That DW3 told Court that by the time the 1st Appellant purchased the suit land, he had heard that the Respondent had bought the same land earlier. That PW1 and all his witnesses testified that he had purchased the land and was in possession.

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That PW2 testified that he saw the 2nd Appellant write the Agreement dated 5th/11/2009 selling the suit Plot measuring 23ft by 100ft to the Respondent. That PW3 testified that he was present with a one Matovu Polikalipo when the 2nd Appellant brought the Respondent (Plaintiff) and declared that she had sold the suit Kibanja to him (Respondent) to them. That the 1st Appellant testified that he has a house on the suit Plot. That the 1st Appellant entered onto the suit Plot without authorisation from the Respondent claiming that he bought the land from the 2nd Appellant. That the construction of and existence of the 1st Appellant's house on land lawfully held to belong to the Respondent without his authorisation amounts to actionable trespass on the Respondent's land.

## **Analysis.**

- 33. The findings in grounds 2 and 5 have an effect on these grounds 3 and 4. Having reevaluated the evidence and found that there was a valid sale of the suit Kibanja between the 2nd Appellant and the Respondent, and that the subsequent sale of the sale by the 2nd Appellant to the 1st Appellant was illegal since the 2nd Appellant had ceased to have any powers to sell the suit Kibanja which she had already sold to the Respondent It is my finding that the Trial Magistrate reached the right conclusion that the suit Kibanja is a property of the Respondent - 34. On the issue of trespass, Trespass to land occurs when a person makes an unauthorized entry upon land, and thereby interfering, or portends to interfere, with another person's lawful possession of that land. Trespass is committed not against the land, but against the person in actual or constructive possession of the land. (See *Hajji Bumbakali vs. Peter Muhairwe & Ors; Civil Suit No. 036 of 1999*, citing *Justine E M N Lutaaya vs. Sterling; Civil Eng. Appeal No.11 of 2002;)*. - 35. A claim for trespass to land can only succeed where the clamant proves that the disputed land belongs to him/her or has powers over it; that the Defendant had entered upon it and that the entry was unlawful in that it was made without permission or that the Defendant had no claim or right or interest in the disputed land. Basing on the findings in grounds 2, 3 and 5, since there is undisputed evidence that the 1st Appellant constructed a house on the suit Kibanja, there was no proof that the Respondent consented to the said construction. The Trial Magistrate reached a right conclusion that the 1st Appellant is a trespasser on the suit Kibanja.

## **Ground 6.**

*That Learned Trial Magistrate erred in law and fact when he awarded excessive general damages and interest without any legal basis.*

- 36. Counsel for the Appellant submitted that there was no any grievance caused to the Respondent that warranted award of general damages as he had no interest in suit Kibanja. That the Trial Magistrate erred in law and fact when he awarded general damages and costs and even if it was warranted it was so excessive. - 37. For the Respondent, it was submitted that the award of UGX 10,000,000/= as general damages was fair and that in fact a slightly higher figure should have been awarded and that Court may increase the award of general damages to any amount it deems fit. That the 1st Appellant without the Respondents permission, knowledge or consent trespassed on the suit land and cut down all food and cash crops grown thereon and constructed a permanent house there and according to the judgment of Learned Trial Magistrate the reason for awarding the above general damages was for the suffered grave inconvenience and mental anguish from the greedy and inconsiderate acts of the 1st Defendant. That he also lost income as he was not utilizing his Plot, the period the 1st Appellant had been restrained from using his land.

## **Analysis.**

- 38. The Trial Magistrate awarded of UGX 10,000,000/= as general damages to the Respondent He stated that he granted general damages for the inconveniences as well as the mental anguish suffered as a result of the Appellant's/ Defendant's actions. - 39. General damages are the direct natural or probable consequence of the wrongful act complained of and include damages for pain, suffering, inconvenience and anticipated future loss. (see *Kiwanian Godfrey T/a Tosumi Auto Spares and GlassMart vs. Arua District Local Government H. C. Civil Suit No. 186 of 2006*). The award of general damages is in the discretion of Court in respect of what the law presumes to be the natural and probable consequence of the Defendant's act or omission (*see Erukana Kuwe vs. Isaac Patrick Matovu and another, H. C. Civil Suit No. 177 of 2003*). - 40. As a general rule, a person who has suffered loss as a result of another's conduct is entitled to be restored to the position that the person would have occupied had the conduct not occurred. In special circumstances where the loss did not arise from the ordinary course of things, general damages are awarded only for such losses of which the Defendant had actual knowledge. In awarding general damages, a party's conduct is thus key to the number of damages awarded. If the action was accidental or inadvertent, damages are lower. If the said action was willful, damages are greater.

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And if it was in-between, i.e. the result of a party's negligence or indifference, then the damages are in-between as well.

- 41. It is now trite law that, an appellate Court cannot interfere with the exercise of discretion of the Trial Court in assessment and award of general damages unless he or she has acted on a wrong principle or where the award is manifestly low or high as to occasion a miscarriage of justice*.* See the Court of Appeal in *Kabandize vs. Kampala Capital City Authority (Civil Appeal No 36 of 2016) 2019 UGCA 2084 (16 April 2019).* - 42. From the circumstances of this case, it is my opinion that the award of general damages to a tune of UGX 10,000,000/- in this case was reasonable and no need of interfering with the said award. - 43. In all, from the re-evaluation of the evidence above, it is my finding that the suit Kibanja is the property of the Respondent, and the 1st Appellant is a trespasser on the suit Kibanja. Therefore, this appeal fails and it is dismissed with costs in this Court and the Court below. I make the following final orders: - a. The appeal is dismissed with costs. - b. The Judgment and orders of the Trial Magistrate are upheld.

It is so ordered.

Judgment signed and delivered by email at Masaka this 20th day of April, 2025.

……………………………………

**LAWRENCE TWEYANZE JUDGE. 20th April, 2025.**