Takiya Kashwahir and Another v Kajungu (Civil Appeal No. 35 of 2011)

Court of Appeal · [2014] UGCA 142 · 2014 Appeal Partly Allowed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Second appeal from the High Court (sitting as first appellate court) on a land trespass dispute originating in the Chief Magistrate's Court

Decision

Appeal substantially dismissed; High Court declaration of ownership and injunction upheld, but awards of general damages and mesne profits set aside

The full judgment

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Holding

On a second appeal limited to questions of law, the Court of Appeal held that a second appellate court cannot disturb concurrent findings of fact where there was evidence to support them. The High Court had properly re-evaluated the evidence as first appellate court, so the findings on land ownership stood and the appeal substantially failed. However, the Court set aside the awards of UGX 10,000,000 general damages (excessive and unsupported by evidence) and UGX 5,000,000 mesne profits, holding mesne profits could not lie because the respondent, not the appellants, was in possession, and the respondent neither pleaded nor proved any profits earned by the appellants.

Facts

In 2007 the respondent, Kajungu Denis, sued the appellants in the Chief Magistrate's Court at Mbarara, claiming they had trespassed on his land at Kashenyi, Kyera, Birere, Isingiro District. The respondent said his mother, Edith Ntamukunzi, had given him the land as a gift inter vivos, and that he and his mother lived on it. The first appellant claimed she acquired the same land through inheritance from her late paternal aunt, Mwajuma Nsubuga, relying on a will. The trial Grade I Magistrate decided in favour of the first appellant, declared her the legal owner, issued a permanent injunction against the respondent and awarded her costs. On appeal the High Court at Mbarara reversed that decision, declared the land belonged to the respondent, issued a permanent injunction restraining the appellants from trespass, and awarded the respondent UGX 10,000,000 general damages and UGX 5,000,000 mesne profits plus costs. The first appellant appealed to the Court of Appeal challenging the evidential findings and the monetary awards.

Issues

Whether the first appellate Judge erred in relying on the respondent's documents to find that the respondent proved rightful ownership of the disputed land.
Whether a document tendered in court only for identification can be relied upon in evidence when it is not an exhibit.
Whether the first appellate Judge properly directed himself on the standard of proof in civil cases.
Whether the first appellate Judge properly addressed himself on inconsistencies and contradictions in a witness's testimony.
Whether the first appellate Judge properly exercised the court's discretion in granting orders and declarations, including awards of general damages and mesne profits.
Whether the first appellate Judge properly re-evaluated the evidence.

Orders

The appeal substantially fails and is dismissed subject to the variations made.
The award of general damages of UGX 10,000,000 is set aside.
The award of mesne profits of UGX 5,000,000 is set aside.
The High Court declaration that the suit land belongs to the respondent and the permanent injunction are upheld.
The first appellant to pay the respondent three quarters of the taxed costs here and in the courts below.

Key headnotes

Appeals — Second Appeal — Scope Limited to Questions of Law

A second appellate court is precluded from questioning concurrent findings of fact of the trial and first appellate courts where there was evidence to support those findings, and may only interfere where there was no evidence to support them, that being a question of law.

Re-evaluation of Evidence — Duty of First Appellate Court

A first appellate court has a duty to subject the entire evidence and record to a thorough and rigorous scrutiny and to arrive at its own conclusions; where it properly does so it may differ from the trial court's findings.

General Damages — Requirement of Evidence to Justify Quantum

Although the award of general damages is in the discretion of court, a claimant must furnish evidence to justify that the amount awarded is commensurate with the injury suffered; an award lacking such evidential basis and which is excessive will be set aside.

Mesne Profits — Entitlement and Burden of Proof

Mesne profits are payable for occupation of land to a person with the right of immediate occupation; they cannot be awarded where the claimant remains in possession and the alleged trespasser was never in possession, and the burden lies on the claimant to plead and prove the profits received.

Documentary Evidence — Documents Tendered for Identification Only

A document put in court for identification only, which is not formally admitted as an exhibit, has no evidential value and cannot be relied upon to prove the matters asserted in it.

Legislation cited (1)

Evidence Act s.58

Cases cited (9)

Okwonga Anthony Vs Uganda (2001-2005) HCB 36
Ssesaazi Kulabiraawo v Robinah Nalubega (Civil Appeal No. 55 of 2002)
Tifu Lukwago v Samwiri Mudde Kiiza and Another (Supreme Court Civil Appeal No. 13 of 1996)
Dr Vincent Karuhanga t/a Friends Polyclinic v National Insurance Corporation and Uganda Revenue Authority (HCCS No. 617 of 2002)
Fenekansi Semakula v Ezekiel S.M. Mulondo (Civil Appeal No. 4 of 1982)
Attorney General v Tinyefuza (Constitutional Appeal No. 1 of 1997)
Rex - vs - Hassan Bin Said alias Kimani Somali (1942) 9 EACA 62
Kifamunte Henry v Uganda (Supreme Court Criminal Appeal No. 10 of 1997)
Okeno - Vs - Republic (1972) EA 32

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