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T.M.K v Jack Busingye and Others (Civil Appeal No. 1 of 1993)

Supreme Court · [1994] UGSC 62 · 1994 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Civil appeal from a High Court award of special damages in tort
Decision
Appeal partly allowed; High Court awards set aside and reduced special damages totalling Shs. 8,296,000 substituted.

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Holding

The Supreme Court partly allowed the appeal. Ground 4, alleging the first respondent lacked locus standi because the forest permit was issued to a limited company, was rejected as misconceived: the point was never pleaded or made an issue at trial. On ground 5 the Court held that special damages for the destroyed trees should be assessed on the prices the respondents themselves earned, not the Forest Officers' official valuation scale, because damages in tort are compensatory and measure the owner's actual loss. The Court set aside the High Court awards and substituted reduced special damages totalling Shs. 8,296,000, ordering each side to bear half of the respective costs.

Facts

On 24 July 1990 the appellant's petrol tanker and trailer overturned at Rutoto in Bushenyi District and caught fire, burning forests belonging to the three respondents. The first respondent lost about 7,500 trees on five hectares, the second 1,350 trees and the third 2,027 trees. The respondents sued the appellant jointly for special damages. Forest Officers valued the trees on the official scale, classifying them as Grade 2 at Shs. 2,600 per cubic metre, producing claims of about Shs. 39 million, 7.8 million and 11.7 million respectively. The second respondent, however, gave evidence that he was selling his trees at Shs. 500 each and the third at between Shs. 700 and 800 each; the first respondent, whose forest was in the same neighbourhood, did not state his price. The High Court awarded damages computed on the Forest Officers' valuation, totalling roughly Shs. 58.5 million, plus costs and interest. The appellant appealed; liability grounds were abandoned, leaving locus standi and quantum.

Issues

  1. Whether the first respondent lacked locus standi to sue because the forest permit was issued to a limited company having a separate legal existence, and whether that point could be raised on appeal when it was not pleaded or made an issue at trial.
  2. Whether special damages for the destroyed trees should have been assessed on the Forest Officers' official valuation scale or on the prices at which the respondents themselves were selling their trees.

Orders

  • Appeal allowed in part.
  • The awards and order for costs made by the trial Judge set aside.
  • Substituted special damages: 1st respondent Shs. 6,000,000; 2nd respondent Shs. 675,000; 3rd respondent Shs. 1,621,600.
  • Appellant to receive 50% of the costs of the appeal; respondents to receive 50% of the costs in the High Court.

Key headnotes

Tort — Negligence — Res ipsa loquitur as a rule of evidence
Where the thing causing damage is shown to be under the management of the defendant or his servants and the accident is such as in the ordinary course of things does not happen if those in management use proper care, the occurrence affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care.
Tort — Damages — Compensatory principle
Damages awarded in tort are, with limited exceptions, compensatory in nature, and the award must reflect the actual loss suffered by the injured party.
Damages — Assessment of value of destroyed property — Owner's own selling price
Where the owner of destroyed property gives evidence of the price at which he was selling it, that evidence should be accepted as the measure of his loss in preference to a higher official valuation scale unsupported by any evidence that such a price was ever offered.
Appeals — Matter not pleaded or raised as an issue at trial
A ground of appeal raising a question, such as a party's locus standi, that was never pleaded or made an issue at trial is misconceived and cannot be entertained on appeal; such a matter should have been dealt with at trial under Order 1 rule 2 of the Civil Procedure Rules.

Legislation cited (2)

  • Civil Procedure Rules Order 1 rule 2
  • Rules of the Court rule 101(a)

Cases cited (1)

  • Visram & Karsan v Bhatt (1965) EA 789
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.