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Turyatunga & 2 Others v Attorney General (Civil Appeal 5 of 2017)

Supreme Court · [2019] UGSC 81 · 2019 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second civil appeal to the Supreme Court from a Court of Appeal decision that had reversed a High Court judgment awarding the appellants damages against the Attorney General
Decision
Appeal partly allowed; general and exemplary damages reinstated, the UGX 40.176 billion compensation award quashed, the 620-hectare land grant set aside, and interest reduced to 10% per annum

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Holding

The Supreme Court partly allowed the second appeal. Government was not vicariously liable for unidentified encroachers, whose identity and agency were not established, but was vicariously liable for the M/s Wemo surveyors (agents of the Uganda Land Commission) and for persons illegally issued certificates of title by the Ministry of Lands in an un-degazetted forest reserve. The UGX 40.176 billion compensation award was set aside as special damages not strictly proved. General damages of UGX 300 million and exemplary damages of UGX 150 million were reinstated. The order granting 620 hectares was held unmaintainable. Interest was reduced from 25% to 10% per annum, and costs were awarded to the appellants.

Facts

Namanve was gazetted as a Central Forest Reserve in 1932. From 1991 the appellants, licensed by the National Forest Authority, paid fees and planted commercial tree plantations there. In 2010 the Minister of Water and Environment proposed to the Minister of Lands that the supposedly unutilised reserve land be set aside for low-cost housing for slum dwellers. The Uganda Land Commission then instructed M/s Wemo Consult Planners and Surveyors to demarcate and survey roads in the reserve, without notifying the National Forest Authority or the appellants. In the process the surveyors cut down some of the appellants' trees. Following the opening of survey lines, unidentified people described as veterans and landless people entered and destroyed many trees. The Ministry of Lands also issued certificates of title over plots in the still-gazetted reserve, and those title holders destroyed further trees. Police repeatedly tried to evict and prosecuted some encroachers; none were shown to be Government agents. The appellants sued the Attorney General, succeeded in the High Court, but the Court of Appeal reversed the awards.

Issues

  1. Whether the Court of Appeal erred in holding that the Attorney General was not vicariously liable for the persons who destroyed the appellants' trees in Namanve Central Forest Reserve.
  2. Whether the Government was vicariously liable for the acts of unidentified encroachers, of the surveyors engaged by the Uganda Land Commission, and of persons issued certificates of title by the Ministry of Lands.
  3. Whether the appellants could raise a claim founded on Police inaction that was not pleaded at the trial court.
  4. Whether the trial court's awards of compensation, general damages, exemplary damages, a grant of 620 hectares and interest at 25% should be reinstated.

Orders

  • The appeal partially succeeds.
  • It is declared that the appellants had valid licences to plant trees in Namanve Central Forest Reserve when the Uganda Land Commission unlawfully gave out land titles on the same land in a forest reserve that had not been degazetted.
  • The respondent is vicariously liable for the trees destroyed by the M/s Wemo surveyors and by the people illegally issued with land titles in Namanve Central Forest Reserve.
  • The award of UGX 40,176,000,000 as compensation to the appellants is quashed.
  • General damages of UGX 300,000,000 awarded by the trial Judge are reinstated.
  • Exemplary damages of UGX 150,000,000 awarded by the trial Judge are upheld.
  • The award that Government avail the appellants 620 hectares in another forest reserve is not maintainable; the Court of Appeal's decision declining it is upheld.
  • Interest on the general and exemplary damages is awarded at 10% per annum from the date of the High Court Judgment until payment in full.
  • Costs are awarded to the appellants in the Supreme Court and the courts below.

Key headnotes

Tort Law — Vicarious Liability — Proof of Identity and Agency of the Tortfeasor
The Government cannot be held vicariously liable for the destruction of property where the persons who caused the damage are unidentified and have not been shown to be its servants or agents.
Tort Law — Vicarious Liability — Government Agents Acting Within the Course of Employment
Where surveyors are instructed by a Government agency to carry out work, they become agents of the Government, which is vicariously liable for damage they cause in the course of that work.
Land & Property — Forest Reserves — Issuance of Certificates of Title Without Degazetting
Certificates of title issued by the Ministry of Lands over land within a gazetted forest reserve that has not been degazetted in accordance with section 8 of the National Forestry and Tree Planting Act are illegally issued, and the Government is vicariously liable for resulting destruction of property held under valid licences.
Damages & Quantum — Special Damages — Requirement of Strict Pleading and Proof
Special damages must be specifically pleaded and strictly proved; a general valuation that does not establish each claimant's particular loss cannot sustain an award of compensation.
Damages & Quantum — Exemplary Damages — Oppressive or Unconstitutional Action by Government Servants
Exemplary damages may be awarded where there has been oppressive, arbitrary or unconstitutional action by servants of the government, such as the illegal issuance of certificates of title in a gazetted forest reserve.
Civil Procedure — Pleadings — New Claim Not Raised at Trial or First Appeal
A party will not be permitted to raise on a second appeal a claim that was neither pleaded nor proved at the trial court and was never raised at the first appellate court.
Damages & Quantum — Interest — Judicial Exercise of Discretion
An award of interest under section 26(2) of the Civil Procedure Act is discretionary and must be exercised judicially; an unjustified high rate may be reduced to a reasonable rate on appeal.

Legislation cited (3)

  • National Forestry and Tree Planting Act s.8
  • Civil Procedure Act s.26(2)
  • Civil Procedure Rules Order 1 Rule 8(1)

Cases cited (20)

  • Kifamunte Henry v Uganda (Supreme Court Criminal Appeal No. 10 of 1997)
  • Bogere Charles v Uganda (Supreme Court Criminal Appeal No. 10 of 1998)
  • Ongom John Bosco v Uganda (Supreme Court Criminal Appeal No. 21 of 2007)
  • Okeno vs. Republic (1972) EA 32
  • Banco Arabe Espanol (Supreme Court Civil Appeal No. 08 of 1998)
  • Muwonge vs. Attorney General of Uganda, [1967] EA 17
  • A.K.P.M Lutaya v Attorney General (Supreme Court Civil Appeal No. 10 of 2002)
  • K vs. Minister of Safety and Security [2005] ZACC8 (6) SA 419
  • Interfreight Forwarders (U) Ltd v East Africa Development Bank (Supreme Court Civil Appeal No. 33 of 1993)
  • Margaret Kato and Joel Kato v Nuulu Nalwoga (Supreme Court Civil Appeal No. 03 of 2013)
  • Uganda Breweries Limited v Uganda Railways Corporation (Supreme Court Civil Appeal No. 06 of 2001)
  • Capt Philip Ongom v Catherine Nyero Owota (Supreme Court Civil Appeal No. 14 of 2001)
  • Robert Coussens v Attorney General (Supreme Court Civil Appeal No. 8 of 1999)
  • Esso Standard (U) Ltd v Semu Amanu Opio (Supreme Court Civil Appeal No. 3 of 1993)
  • Rookes v Barnard and others [1964] AC 1129
  • Cairo International Bank v Sadique (Supreme Court Civil Appeal No. 03 of 2010)
  • Bank of Baroda (U) Ltd v Wilson Buyonjo Kamugunda (Supreme Court Civil Appeal No. 4 of 2004)
  • Livingstone vs Ronoyard's Coal Co. (1880) 5.App. cas 259
  • D. R. Pandya v. R (1957) E.A
  • Kairu v. Uganda [1978] HCB 123
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.