[2007] UGSC 3

### THE REPUBLIC OF UGANDA

#### IN THE SUPREME COURT OF UGANDA AT KAMPALA

(Appeal from the judgment/decree of the Court of Appeal of Uganda at Kampala before Hon. Lady Justice Faith Mwondha,, Hon. Justice Richard Buteera, Hon. Justice Geoffrey Kiryabwire, JA DATED 24^TH June 2015 in Civil Appeal No. 80 of 2012).

### CIVIL APPEAL NO. 12 OF 2015

THE ATTORNEY GENERAL

**::::::::::::::::APPELLANTS**

APAC DISTRICT ADMINISTRATION. 12

#### **VERSUS**

RUTAAMA GEOFFREY:::::::::::::::::::::::::::::::::::

**MISANGO ABEL**

$\mathsf{6}$

(Coram: Hon. Justice Bart M. Katureebe, CJ; Hon. Justice Arach-Amoko; Hon. Justice A. S. Nshimye, Hon. Justice Eldad Mwangusya; Hon. Justice Opio-Aweri, JSC).

#### JUDGMENT OF JUSTICE OPIO-AWERI, JSC

### Introduction.

This is a second appeal from the decision of the High Court (Elizabeth Musoke, J., as she then was). The appellants were defendants in the **HCCS No 43 of 2005**. They were sued in the High Court by the respondents for special, aggravated and general damages for property allegedly wrongfully taken over/converted, loss of earnings, interest and costs.

## Background:

The respondents' case was that at the material time, June to August 2004, they were occupying part of Maruzi Ranch in Akokoro Sub-County, Apac District. They had moved their cattle from Mubende to Akokoro through Masindi because of the drought. They thought they would graze their cattle in Akokoro until such a time when the rains would come back and then return to Mubende. At one time or another during the above period, they were ordered by the RDC's Office and Apac District Local Government to vacate the Ranch. However, because of the outbreak of cattle disease in the Ranch, they could not vacate.

$\mathsf{G}$

On the 30^th June 2004, they got permission from the Government of Uganda through Dr. N. Kauta, Commissioner Livestock Health and Entomology to keep their 500 (five hundred) heads of cattle at Maruzi Ranch in Akokoro Sub-County, Apac District, until when the quarantine would be lifted.

On the 9^th August 2004, at around 5:00pm, the Resident District Commissioner, with her escorts all of whom were government security officials in the company of the District Councilor of Akokoro Sub-County, Mr. Charles Ogwang who 18 employee/servant of Apac District Local was an Administration, mobilized local people armed with knives, pangas and sticks. They attacked, slaughtered and took away the respondents' 300 (three hundred) heads of cattle and other 200 were left to wonder in the wilderness. The group took away all the respondents' household items as $\overline{24}$ well as all the equipments which they were using for looking after the cattle.

The particulars of special damages which were listed heads of cattle valued 500 included the at shs $150,000,000/$ =; 10 bicycles valued at shs. 1,500,000/=, 64 mattresses at $30,000/$ = each.

$\mathsf{Z}$

There were 29 household items listed together with the value of 500 heads of cattle. The total of special damages claimed was shs. $189,297,000/=$ .

$\mathbf{6}$

It was alleged further that the respondents' monthly income was about $2,160,000/$ = from selling sixty jerrycans of milk every day and that this was lost as a result of the acts of the agents/employees/servants of the appellants/defendants of which they were liable.

appellants/defendants denied the The claims. They contended that the respondents/plaintiffs had illegally occupied Maruzi Ranch and did not obtain the necessary authority to occupy the same. The respondents were given sufficient notice to vacate the ranch but resisted even after the last warning was issued by the office of the Resident

18 District Commissioner. In their illegal occupation, the Respondents/plaintiffs were grazing their cattle in the gardens of the local community. As a result, the plaintiffs/Respondents were arrested and charged with forceful entry into Maruzi Government Ranch in the Chief Magistrate's Court, Apac. 24

The appellants/defendants further contended that the acts complained of by the respondents/plaintiffs were not committed at all and if they were committed, the servants of the defendants never authorized or condoned the same. The appellants/defendants also denied mobilizing armed local people against the respondents/plaintiffs. They concluded that the occupants of the ranch were peacefully evacuated from the Ranch with the help of the local people.

$\overline{3}$

The trial in the High Court proceeded on the following agreed issues.

$\mathsf{G}$

- 1. Whether the plaintiffs' occupancy and continued occupancy of Maruzi Ranch was illegal. - 2. Whether the order for evacuation was proper under the governing laws. - 3. Whether the defendants carried out the evacuation of Maruzi Ranch. - 4. Whether the plaintiffs lost their animals and household items and equipments as pleaded. - 5. *Whether the defendants are liable for the loss.* - 6. Remedies available.

The learned trial Judge heard the suit and dismissed it with costs.

The plaintiffs/Respondents were not satisfied with the decision and order of the trial Judge and appealed to the Court of Appeal which upheld the appeal and set aside the decision of the lower court and made the following orders:-

- a) Awarding special damages of shs. $100,000,000/$ = in lieu of their 500 heads of cattle they lost. - *b) Awarding general damages to the tune of the* $50,000,000/=$ . - *c) Awarding aggravated damages of shs. 10,000,000/=.* - *d)* Costs of the suit.

The appellants/defendants were not satisfied with the above decision and orders and appealed to this court on the following grounds:

- 1) That the learned Justices of Appeal erred in law and in fact in finding that there was no written statement of defence by the $2^{nd}$ respondent and that they were *unrepresented, whereas not.* - 2) That the learned Justices of Appeal erred in law and in fact when they failed to properly evaluate the evidence on record as a whole and arrived at wrong conclusions. - 3) That the learned Justices of Appeal misdirected themselves in holding that the respondents acted in high handed manner towards the appellants and *their property and that the appellants* were condemned unheard. - 4) That the learned Justices of Appeal erred in law and in fact when they failed to evaluate properly the evidence on record and found that the respondents took charge of the appellants' animals and failed and or never handed them over to them. - 5) That the learned Justices of Appeal erred in fact and in law when they found that the respondents violated the appellants' right to ownership of property. - The respondents filed a cross appeal contending that the 30 decision of the Court of Appeal be varied and /or reversed to the extent and in the manner and on the following grounds:-

$\mathsf{G}$

$12$

- 1) That the justices of Appeal erred in law and fact in awarding inordinately low special damages of ushs. $100,000,000/$ = in lieu of their 500 heads of cattle which *they lost;* - 2) That the learned justices of Appeal erred in law, and fact in awarding inordinately low general damages to the tune of ushs. $50,000,000/=$ . - 3) That the learned Justices of Appeal erred in law and fact in awarding inordinately low aggravated damages of ushs. $10,000,000/$ = for the high handedness. *oppressive and arbitrary treatment of the respondents.* - 4) That the learned Justices of Appeal erred in law and fact in awarding inordinately low interest on [NO. 1] special damages at the rate of 20% per annum.

The respondents following proposed the declarations/orders:-

$\overline{24}$

$\mathsf{6}$

- a) An order allowing the cross appeal and setting aside the awards of the Learned Justices of Appeal. - b) An order substituting the respective awards as hereunder: - Ushs. $187,297,000/$ = inclusive of a claim for the 500 i. heads of cattle, ushs. $150,000,000/=$ or ushs. $300,000/$ = per head of cattle, and the rest being *personal belongings;* - ii. General damages the to tune of ushs. $2,500,000,000/=$ .

$\mathsf{6}$

- iii. Aggravated damages to the tune of ushs. $100,000,000/=$ . - Interest on No. 1 at the rate of 35% per annum from iv. *the date of filing suit till payment in full.* - *Costs of this appeal and the courts below.* $\nu$ .

# Representation.

During the hearing of this appeal, the appellants were represented by M/S Margret Nabakooza, Principal State 12 Attorney in the Attorney General's Chambers. The respondents were represented by Mr. John Mary Mugisha of M/S Mugisha & Co. Advocates.

## Submissions of counsel

Counsel for the appellants argued ground 1 separately and grounds $2$ , $3$ , $4$ and $5$ together. 18

### Ground 1

$\mathsf{6}$

The gist of ground 1 was that the $2^{nd}$ appellant did not file a written statement of defence and was not represented.

Learned counsel for the appellants submitted that during the trial, an application was made to join the $2^{nd}$ appellant to the defence of the 1^st appellant and that there was a joint 24 representation for both appellants by the Attorney General all the way up to the Court of Appeal, and that representation remained so by Attorney General for both appellants.

In reply counsel for the respondents conceded that indeed an amendment was sought to join the $2^{nd}$ appellant to the defence of the $1^{st}$ appellant.

$\overline{7}$

# Resolution:

I have perused the record of proceedings and confirmed that an $\mathsf{G}$ oral application was indeed made under order 6 rule 19 of the Civil Procedure Rules for amendment of the heading of the 1^st appellant's written statement of defence to refer to both 1st and $2^nd$ appellant. The record of proceedings further show that the appellants' case were presented jointly. The written submissions were drawn and filed by the Attorney General's Chambers as 12 counsel for both appellants.

There was joint representation all the way from the High Court to the Court of Appeal. I accordingly find that the concession by counsel for the respondents was based on facts on record. Ground 1 is accordingly allowed.

# Ground 2, 3, 4 and 5.

Counsel for the appellants contended that the Justices of the Court of Appeal did not properly evaluate and ignored the credible, and consistent evidence of the appellants. The appellants' 5 witnesses included Olinga Otolo Robert, the LC3 Chairperson Akokoro Sub-County, Apac District (DW1); Ogang Charles, the District Councilor representing Akokoro Sub-County (DW2); Mary Frances Owor, the Resident District Commissioner Apac District (DW3); Orech Kenneth, the District Veterinary officer, Apac District (DW4); and Adoko Geoffrey, the Ferry operator (DW5). The learned counsel submitted that the circumstances surrounding the arrest of the respondents did not point in any way to high handedness by the appellants towards the respondents and their property, including cattle. The evidence on record indicated that by the time the respondents were arrested, the animals had been taken for grazing by their workers.

$\mathsf{6}$

The respondents requested for and were granted time 12 extensions within which to vacate the government Ranch but they refused to vacate. Counsel submitted that the respondents were not condemned unheard and that the appellants did not violate the respondents' right to ownership of property.

The respondents' workers remained in-charge of their animals at all material times upto the time they peacefully crossed over 18 to Masindi District with the animals.

Learned counsel attacked the evidence of the respondents as a whole for being unreliable, marred with lies, hearsay, inconsistent and without merit, and that the said evidence had successfully rebutted by the appellants. Counsel been concluded that the learned trial Judge was right to find that none of the respondents' properties or cattle were taken or destroyed by the appellants and that the respondents were not entitled to any remedies sought.

In reply, the learned counsel for the respondents submitted that the learned Justices of the Court of Appeal were alive to their role as the first appellate court and were right to fault the lower court for having improperly evaluated the evidence on record. The learned counsel contended that the respondents were

$\overline{9}$

granted permit to drive 500 heads of cattle within 11 days from Masindi to Apac via Masindi port.

Upon reaching Maruzi Ranch, the agents of the appellants arrested the respondents and ordered the evacuation of their animals from the Ranch. In the process of evacuation, the respondents lost their animals and other properties. The learned counsel submitted that after arresting the respondents, the agents of the appellants took over the respondents' cattle 12 and became bailees with legal obligation to return the cattle to the respondents in the same number, which they did not do. Counsel contended that the burden of proof was on the appellants to prove that they had carried out the duties of a bailee. Counsel concluded that the Justices of the Court of Appeal should not be faulted on grounds 2, 3, 4 and 5 because their conclusion were supported by evidence which they reevaluated as $1^{st}$ appellate court.

In her rejoinder, m/s Nabakooza reiterated that the Justices of the Court of Appeal were not fully alive to the principles and missed out vital pieces of evidence which would have changed their conclusion. She submitted that there was no evidence of foot and mouth disease in the area. She reiterated that there was no need to handover the animals because the agents of the appellants did not at any one time take charge of the animals because they were not bailees. She concluded that the evidence adduced by the respondents in the trial failed to prove their case and accordingly prayed that the appeal be allowed.

## Resolution.

$\mathsf{6}$

This being an appeal against the decision of the Court of Appeal as a first appellate court, it is pertinent to restate the duty of the court as a first appellate court. The duty of the Court of Appeal as a first appellate court is provided under Rule 30 (1) of the Court of Appeal Rules. Under the above rule the Court of Appeal is empowered to reappraise the evidence on record and draw its own inferences of fact. The above duty was reiterated in the case of Kifamunte VS Uganda, Criminal Appeal No. 10 of 1997 (SC).

$\mathbf{r}^{\prime}$

$\mathsf{G}$

"The first appellate court has a duty to review the evidence and reconsider the materials before the trial Judge. The appellate court must then make up its own mind disregarding the judgment appealed against but carefully weighing and considering It." see also Bogere Moses VS Uganda.

In performing the above duty, the 1^st appellate Court should always bear in mind the fact that if neither saw nor heard the witnesses and should make allowance in that respect: see Watt or Thomas VS Thomas [1947] AC 484. As a second appellate this Court is not required to re-evaluate the whole court evidence unless it is found that the $1^{st}$ appellate court did not re-evaluate the evidence to draw its owns conclusion.

In the above case, (Thomas) LORD VISCOUNT; explained the subject in the following words:-

"Apart from the classes of cases in which the powers of the Court of Appeal limited to deciding a question of law, an 30 appellate Court has of course jurisdiction to review the record of the evidence in order to determine whether the conclusion

originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no $\mathsf{6}$ evidence to support a particular conclusion (and this is really $a$ question of law), the appellate Court will not hesitate so to decide. But if evidence as a whole can reasonably be regarded as justifying testimony by a tribunal which saw and heard the witnesses, the appellate Court will bear in mind that it has not enjoyed the opportunity and that the view of the trial judge as 12 to where credibility lies is entitled to great weight. This is not to say that the judges of $1^{st}$ instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a judge of $1^{st}$ instance, when estimating the value of 18 verbal testimony, has the advantage (which is denied to Court of Appeal) of having the witness before him and observing the manner in which their evidence is given".

In Kifamnute (supra) the Supreme Court stated the above principles vividly:-

"It is the Court of Appeal as a first appellate court which has a 24 duty to re-evaluate the evidence of the trial court. This Court will no doubt consider the facts of the appeal to the extent of considering the relevant point of law or mixed law and fact raised in any appeal. If we re-evaluate the facts of each case whole sale we will assume the duty of the first appellate court and create unnecessary uncertainty. We can interfere with the conclusions 30 of the Court of Appeal if it appears that in consideration of the appeal as a first appellate court, the Court of Appeal misapplied or failed to apply the Principles set out in such decisions as *Pandya...................................*

After pursuing the judgment of the Court of Appeal, it is very clear that the Court of Appeal properly directed itself as to its duty as a first appellate court. The Court of Appeal referred to Rule 30 (1) of the Court of Appeal Rules which empowers it to reappraise the evidence on record and draw its own conclusion. The Court also referred to the case of Bogere Moses VS Uganda, Criminal Appeal No. 01 of 1997.

$\mathsf{6}$

The question arising is whether the Court of Appeal did in fact 12 evaluate the evidence in arriving at the conclusion that the trial judge was wrong. The contention of the appellants is that, the learned Justices of the Court of Appeal did not properly evaluate and ignored credible, and consistent evidence of the appellants which included the evidence of Olinga Otolo DW1, Ogang Charles DW2, Mary Frances Owor DW3, Orech Kenneth 18 DW4 and Adoko Geoffrey DW5.

In answering the above question, it is important to understand the substance of the above evidence.

Dw1 Olinga Robert who was LC3 chairperson, Akokoro Sub-County, testified interalia that he received communication from the Chairperson LCII Kungu Parish, Akokoro, detailing that on 25/06/2004 he received complaints from the local community that there were unknown groups of people that had come with large heads of cattle and their animals were destroying crops in the area especially in two villages of Acalal and Abudama. The same complaints had also been forwarded to the office of the Resident District Commissioner, Apac.

It was then resolved that there should be an inter-district meeting to be scheduled between Apac District and Masindi

District Local Administration. Prior to the meeting, he had earlier invited the pastoralists to his office but they never $\mathsf{6}$ turned up. The inter-district meeting was held on $5/7/2004$ involving the RDC, DISO, Chief Administrative Officer (CAO) Secretary for Finance, DPC, LCIII and opinion leaders from both Apac and Masindi. In that meeting it was resolved that the pastoralists should vacate the Ranch within two weeks. Upon the request of the pastoralists, the period of two weeks was 12 extended to a month whereby the deadline was fixed to 5^th August 2004. On 29/07/2004Radio communication by the RDC was issued requiring the pastoralists to honour the said deadline. The Minister of State for Animal Industry directed the RDC to ensure that the resolution was observed. He stated that on 30/07/2004, he wrote a letter to the LCII Chairperson 18 Kungu telling him that the above deadline of 5^th August 2004 still stood and should be implemented. On 04/04/2004 he received a letter from LCII Chairperson Kungu stating that some pastoralists had left and that those who had refused to vacate were led by Abel Misango, the 2^nd respondent. In a meeting held on 19/8/2004, it was resolved that the pastoralists who had $\overline{24}$ not observed the resolution of the security committee should be arrested and charged with forceful entry into the Ranch. After that meeting, the Security team comprising RDC, DPC, DISO, LCV Councilors of Ibuje and Akokoro, LCIII Chairpersons of Ibuje and Akokoro, and opinion leaders went to the Ranch and arrested the respondents. Dw1 denied the existence of animal diseases in the area.

Charles Ogang, the District Councilor representing $Dw2$ Akokoro Sub-County confirmed the testimony of DW1. He

stated that he was aware of the invasion of pastoralists in Maruzi Ranch and the complaints raised against them of destroying crops belonging to the local communities. A meeting was arranged but the pastoralists failed to attend.

As complaints grew stronger concerning the level of destruction of crops, the local leaders notified the District leaders for a possible joint District Security meeting between Masindi District and Apac District. That meeting took place on 5/7/2004. The purpose of the meeting was:-

- 1. Confirm whether the pastoralists had genuine movement permits - 2. Confirm whether they had authority to settle in Maruzi Ranch. - 3. Listen to wanainchi's complaints. 18

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$\mathsf{6}$

It was established that the pastoralists had movement permit allowing them to move to Soroti but they decided to settle in Maruzi Ranch illegally. It was discovered that the pastoralists were mobilized by the respondents who claimed that they had land where they could settle the pastoralists. The pastoralists started complaining because they had paid money to the respondents to graze their animals there.

The meeting resolved that the pastoralists should vacate the Ranch and were given two weeks to do so. However, they pleaded for more time and it was extended by one month from 5^th July 2004 to 5^th August 2004. After the deadline, it was discovered that some pastoralists had moved away from the Ranch but others led by the respondents had not moved.

Another meeting was held where it was resolved that the respondents be arrested and charged with forceful entry on to the Ranch. Dw2 clarified that he remained behind to ensure that the animals that remained were driven to the ferry landing site and evacuated peacefully to Masindi Port. He denied ever instructing anybody to destroy the respondents' property.

$\mathsf{G}$

Dw3 Mary Frances Owor, the RDC confirmed the testimonies of DW1 and DW2 and added that the pastoralists who crossed 12 through the ferry with their animals had indicated that they were going to Soroti District and that she did not allow them to settle at the Ranch. She confirmed that the pastoralists destroyed the people's crops. She stated that they held a series of meetings in the presence of the respondents where it was resolved that they should vacate the Ranch in a stipulated time 18 frame but the respondents defied the resolutions and continued their illegal occupation of the Ranch.

She stated that she was authorized by the Minister of State for Animal Husbandry to order the Respondents to vacate the Ranch. She accordingly issued a press release directing all the pastoralists to vacate the Ranch. Even after the press release, 24 the respondents and their group refused to vacate. As a result, the security Team and other authorities resolved to forcefully evict the pastoralists from the Ranch and subsequently the respondents were arrested and charged in court. That was followed by peaceful evacuation of the pastoralists from the Ranch. She concluded that no property of the respondents were 30 lost or destroyed.

Orech Kenneth DW4, the District Veterinary Officer, Apac confirmed the testimonies of DW1, DW2, and Dw3 regarding the invasion by pastoralists and the meetings that were held to resolve it. He stated that there was no disease outbreak in Apac in 2004 and that in case of any outbreak, he would be the first one to inform the commissioner of the same and not the other way round as in the instant case. He stated that he never received a copy of movement permit from the pastoralists as procedure demands. He stated that the pastoralists also needed a letter of no objection from Apac District allowing them to bring their cattle into the District which was not done, hence the occupation of the pastoralists were illegal.

Dw5 Adoko Geoffrey, a Ferry operator confirmed the testimony of DW1, Dw2, Dw3 and DW4 and added that on 19/09/2004, he found a large number of cattle crowded on Apac side. A team from Apac headed by DW1 with some policemen told him that 18 the animals were supposed to be ferried to Masindi side. They could not start ferrying the animals that day due to high traffic but started ferrying the animals the following day on 20^th August 2004 and ended on 21/08/2004.

They ferried over 500 heads of cattle as indicated in the ferry traffic register (exhibit D10). He concluded that only the 24 movement of $20/08/2004$ was supervised by the policemen and the local leaders but that of 22/8/2004 was not supervised.

## Court's analysis and findings.

$\mathsf{G}$

From the above evidence, it is clear that the influx of pastoralists to Apac District in 2004 was not the first time. According to Dw2, the first invasion started way back in 1998 30 when the $1^{st}$ batch of pastoralists entered Apac through Akokoro Sub-County with about 300 heads of cattle. Another

group entered in 2002 with between 500 to 700 heads of cattle. In 2003 yet another lot entered covering two other Sub-counties of Chawente and Nambyeso.

$\mathsf{6}$

According to DW2 in all the entries, there were complaints from the Wanainchi regarding the destruction of their crops by the pastoralists and their cattle. Later on, there were peaceful evacuation of the pastoralists who entered the three above Sub-Countries of Apac.

In June 2004, there was this entry into the Maruzi Ranch. It is clear from the evidence on record that the respondents were forced to move from Mubende to Apac, after being brutally exposed to the effects of climate change. They were suffering from water and pasture stress. Their understanding was that they were to stay in Apac until the rains would come back and 18 then return to Mubende through Masindi. On the face of the constitution, the pastoralists were right to mitigate the effects of the climate change by moving their animals to Apac which is part of Uganda. Moreover, the cattle the pastoralists were keeping contribute to the economy of the country in terms of domestic and foreign revenues.

Although the intention of the respondents were noble, their entry and stay on the Ranch was unlawful in that they did not seek authority from the District. Worse still, the manner in which the respondents conducted themselves when they allowed their animals to destroy the crops and properties of the local community with impunity was the reason why they were forced to vacate the Ranch. It is clear from the evidence on record that a number of meetings were called to resolve the impasse but the respondents were adamant. It is apparent that

they did not want to listen to anybody from the District. The evidence above shows that other law abiding pastoralists respected official resolutions to vacate the Ranch but the respondents were adamant and instead went round the resolution by purporting that there was a disease outbreak in the Ranch. That was proved to be untrue. The arrest of the respondents was because they had defied lawful orders to vacate the Ranch which they were occupying illegally. It is therefore not true that the respondents were condemned unheard.

$\frac{1}{2}$

$\mathsf{G}$

It was alleged that the respondents were denied their right to own property. With due respect, the above contention is not backed by evidence on record. The evidence on record is to the effect that the appellants with the relevant authorities lawfully 18 evacuated the respondents from the Ranch. The respondents' properties were neither destroyed nor lost. I agree with the trial Judge that the respondents could not have moved with 10 bicycles, 64 mattresses, 64 blankets, 64 pairs of bed sheets, 90 women suits, 70 pairs of children shoes, 80 children dresses, 60 suit cases, 32 pumps among other things, These were a few 24 pastoralists who were moving in search of pasture and had temporary shelters in the Ranch.

It would clearly be strange to move with the above items let alone keep them in the two tiny temporary grass thatched houses which the respondents had erected in the Ranch.

It is trite law that to succeed on any issue, the party bearing the 30 legal burden of proof must satisfy the Court of the likelihood of the truth of his or her case by adducing a greater weight of evidence than his or her opponent and adduce evidence

sufficient to the required standard or degree of proof. That standard in Civil Cases is on the balance of probabilities: - see: Halsbury's Laws of England 4^th Edition Volume 17 page 18.

$\mathsf{6}$

In the instant case, I find that the respondents did not adduce any credible evidence in support of their case. The respondents' evidence was unreliable, marred with lies, hearsay, inconsistent and without merit. The evidence of PW1, PW2, PW3, PW4, and PW5 which the respondents relied upon clearly failed to discharge the burden of proof cast upon the respondents. The evidence of PW1 Abel Misango lacked substance. The 60 pastoralists he talked of must have been the ones who evacuated the animals back to Masindi.

The evidence of PW2 Geoffrey Rutaama also lacked substance. His evidence was to the effect that he did not see anyone 18 destroying or taking his property. He was merely told that houses were burnt. PW3 Luutu Mukasa Moses, a political mobiliser, did not witness the alleged destruction and looting of the animals and property. His evidence was mainly hearsay. He appeared in the area three days after the incident. His evidence to say the least, could not be credible. PW4 Mbabazi who was 24 one of the 60 workers did not mention the vast house-hold properties that were alleged to have been destroyed. She did not see the cattle being taken away or killed.

The evidence of PW5 Vincent Kasaija was hearsay. He testified that he went to the area between 2 to 4 days after the incident and took one photograph at the Ranch. He photographed only one dead cow.

Lastly, the evidence of PW6 Dr. Nicholas Kauta lacked credibility. He issued an order for a quarantine before requesting for verification from the disease outbreak contrary to the protocol he had alluded to. His evidence was thrashed for being unreliable, speculative and based on hearsay. There was greater weight of evidence that there was no outbreak of cattle disease in Apac District. The evidence of PW6 Dr. Kauta was merely intended to justify illegal occupation of the Ranch by the respondent.

$\mathsf{G}$

$12$

From the above analysis, I agree with the trial Judge in her conclusion that the respondent entered the Ranch illegally and were lawfully evacuated from the Ranch. There was no credible evidence adduced to prove that any of the alleged properties of the respondents/plaintiffs or cows were taken or destroyed by 18 the appellants/defendants or any other person. Had the Court of Appeal properly evaluated the evidence on record as a whole, they would have agreed with the trial Judge that the respondents had not lost any property and so were not entitled to the reliefs claimed.

In the result I find that the appeal has merit and it is allowed 24 with costs here and below and the cross appeal dismissed with costs.

Dated at Kampala this. 5th July .2017

Hon. Justice Opio-Aweri, Justice of the Supreme Court

### THE REPUBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA

## AT KAMPALA

(CORAM: KATUREEBE, CJ; ARACH-AMOKO; NSHIMYE; MWANGUSYA; OPIO-AWERI, JJSC).

#### CIVIL APPEAL NO.12 OF 2015

#### **BETWEEN**

THE ATTORNEY GENERAL APAC DISTRICT ADMINISTRATION **.....................................** AND RUTAAMA GEOFFREY **MISANGO ABEL EXAMPLE 21 INSTRUMENTS**

[Appeal from the judgment/decree of the Court of Appeal of Uganda at Kampala (Mwondha; Buteera; Kiryabwire, JJA Dated 24^th June, 2015 in Civil Appeal No. 80 of 2012].

I have read in draft the judgment of my brother Opio-Aweri, JSC and I concur with it, and also agree with the orders he has proposed.

As the other members of the Court agree, the appeal is allowed with costs in this court and courts below. The cross-appeal is dismissed with costs.

The judgment of the court of Appeal is set aside.

Dated at Kampala this .................................... $\ldots 2017$

Junha Bart M. Katureebe

**CHIEF JUSTICE**

## THE REPURLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA

(CORAM: Katureebe, CJ, Arach-Amoko, Nshimye, Mwangusya, Opio-Aweri, JJSC;)

## CIVIL APPEAL NO. 12 OF 2015.

### **BETWEEN**

#### 1. ATTORNEY GENERAL **:::::::::::APPELLANTS** 2. APAC DISTRICT ADMINISTRATION

### AND

1. RUTAAMA GEOFFREY 2. MISANGO ABEL

**EXAMPLE**

{Appeal from the decision of the Court of Appeal at Kampala (Mwondha, Buteera, Kiryabwire, JJA). Dated 24^th June, 2015 in Civil Appeal No. 80 of 2012}

## **JUDGMENT OF M. S. ARACH-AMOKO, JSC**

I have had the benefit of reading in draft the Judgment of my learned brother, Hon. Justice. Opio-Aweri, JSC, and I concur with his decision that this Appeal should be allowed with costs. I also agree that the Cross Appeal should be dismissed with costs.

Dated at Kampala this $\frac{1}{2}$ ...day of... $\ldots 2017$

M. S. ARACH-AMOKO JUSTICE OF THE SUPREME COURT

## THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA

[CORAM: Katureebe CJ, Arach-Amoko, Augustine Nshimye, Mwangusya, Opio-Aweri, JJSC]

# CIVIL APPEAL NO.012 OF 2015

## **BETWEEN**

1. ATTORNEY GENERAL 2. APAC DISTRICT ADMINISTRATION ............... APPELLANTS

#### AND

1. RUTAAMA GEOFFREY 2. MISANGO ABEL

**RESPONDENTS**

(Appeal from the decision of the Court of Appeal at Kampala (Mwondha, Buteera, Kiryabwire, JJA) Dated 24^th June, 2015 in Civil Appeal No. 80 of 2012)

# JUDGMENT OF ELDAD MWANGUSYA, JSC

I have had the benefit of reading in draft the Judgment of Hon. Justice Opio-Aweri, JSC, and I agree with his decision that this appeal should be allowed with costs.

I also agree that the Cross Appeal should be dismissed with costs.

Dated this.................................... .......................................

MWANGUSYA ELDAD JUSTICE OF THE SUPREME COURT