THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT NAKAWA

CIVIL APPEAL NO. 26 OF 2013

[Arising from Civil Suit No. 161 of 2005]

UMEME LTD ================================  APPELLANT

VERSUS

JULIET KABUGO==========================RESPONDENT

Before: HON. MR. JUSTICE WILSON MASALU MUSENE

JUDGMENT

The Appellant, Umeme Limited, being dissatisfied with the Decree and Orders of Her Worship Flavia Nassuna Matovu, Chief Magistrate Mpigi made on 7th February, 2013 in Civil Suit No. 161 of 2005 appealed to this Court.

The Appellant was represented by M/S Shonubi Musoke & Co. Advocates, while the Respondent, Juliet Kabugo was represented by M/S Kakooza, Kawuma & Co. Advocates.  The grounds of Appeal were:-

1. The learned Magistrate erred in law and fact thereby occasioning a miscarriage of justice when she found that the Appellant was liable in trespass.
2. The Learned Magistrate erred in fact and in law thereby reaching a wrong conclusion when she found that the Appellant needed the consent of the Respondent to upgrade its service using the already granted way leaves.
3. The learned trial Magistrate erred in law and fact when she awarded excessive damages to the Respondent thereby occasioning a miscarriage of Justice.

The background to this Appeal is that in 2005, the Respondent then as the Plaintiff/Claimant filed a claim against the Appellant/Defendant in the then Wakiso District Land Tribunal alleging that the Appellant/Defendant had trespassed onto her land comprised in Busiro Block 353 Plot No.10 and Busiro Block 351 Plots Nos. 75 and 76 situated at Nagalabi, Buddo by constructing without her consent a high voltage power line.  She further alleged that the installations had affected her health and business of a leisure garden on the suit land.

The Respondent/Plaintiff prayed that the Appellant be ordered to remove the poles/wires and compensate her for the lost income as the customers had abandoned the business for fear of their lives posed by the installations and that her health had been affected.

The Chief Magistrate Mpigi heard the case and found that the Appellant/Defendant had trespassed onto the Respondent/Plaintiff’s land, who as a result had been greatly inconvenienced and psychologically tormented and tortured.  She awarded her general damages for trespass and for the suffering and inconvenience.  The trial Chief Magistrate further ordered the Defendant to remove the high voltage power lines and heavy duty electric poles, pay general damages of Shs. 20,000,000/= and costs, hence this Appeal.  The Respondent on the other hand agrees with the findings of the trial Magistrate and supports the Judgment of the lower Court.

Before dwelling on the grounds of Appeal, I wish to re-state the position of the law regarding the first Appellate Court.  In the cases of Pandya V R [1957] E.A.570 and Fredrick Zaabwe Vs Orient Bank & 5 Others, Supreme Court Civil Appeal No. 4 of 2006, It was held that it is the duty of the first Appellate Court to review the evidence on record and draw its own conclusions of facts, while making allowance for the fact of advantage of the trial Magistrate who saw the witnesses as they testified (Demeanor).  I add that under Section 106 of the evidence Act, the burden of proof in Civil Proceedings is upon the person who assumes to have knowledge of the facts.  And Section 110 of the same Act provides that the burden is on the person claiming.  I shall now turn to the first ground of Appeal.  It is that the learned trial Magistrate erred in law and fact thereby occasioning a miscarriage of Justice when she found that the Appellant was liable in trespass.

Counsel for the Appellant referred to the testimony of DW1, Stephen Epilu who stated that originally there was a two phase line traversing the Respondent/Plaintiff’s land.  And that it was constructed way back in 1982 by Uganda Electricity Board and Respondent/Plaintiff was a beneficiary.

It was further submitted that it was assumed that the Respondent had granted her consent. According to DW1, there was need to boost the service lines and that if the line already existed, consent would only be required to the extent to which the line is either extended or shifted.  DW1’s further testimony was to the effect that the new high voltage line followed exactly the same path as the old one and that the difference this time was that it had three wires as opposed to the two previous ones.  Counsel for the Appellant’s conclusions were that if the trial Magistrate had properly evaluated the evidence, she would have come to the conclusion that the Appellant had not trespassed onto the Respondent’s land. 

Counsel for the Respondent on the other hand submitted that the Appellant appreciates the concept of consent and its necessity before its infrastructure is erected on private property.  It was therefore urged that the change of heart in the context of DW1’s testimony that consent was not required for alterations of infrastructure on the Respondent’s property was unacceptable.  It was submitted by the Respondent that trespass to land occurs when a person makes an unauthorized entry upon land, and thereby interferes, or portends to interfere with another person’s lawful possession of that land.  The Respondent’s submissions were that the requirements of Section 67(4) of the Electricity Act were mandatory and when read together with Sections 67(1) (4), (5), (6), and (7) and (8) they highlight the spirit of the legislation with regard to the necessity of notice.

They concluded that any Private Property owner can challenge the proposed establishment, construction, improvement of the Appellant’s infrastructure on his or her property.  And that the Appellant’s failure to give notice of its intentions robbed the Respondent of her right to challenge the Appellant’s activity on her land, and that nevertheless it rendered all the Appellant’s actions on the Respondent’s land contrary to the law and therefore illegal.  They added that the Respondent made out a proper case for illegality by the Appellant, thereby satisfying her burden of proof in civil disputes. 

I have carefully considered and internalized the submissions on both sides, as well as the Judgment of the trial Magistrate.  In her testimony on pages 5, 6 and 7 of the proceedings, PW1, the Respondent now, clearly proved to Court that she is the registered proprietor of three parcels of land.  These were Block 351 Plot 76, Block 352 Plot 10, Busiro and Budo Block 351 Plot 75.  And her residence and business gardens are located on Plot 10 of Block 353, while on Plots 75 and 76, she has plantations, servants’ quarters, crops, trees, e.t.c.

PW1’s testimony was that UMEME came and removed low voltage wires for home consumption, and then installed new poles and fixed high tension voltage lines.  She added that she was never requested before that action was taken and never authorized them personally.  PW1’s further testimony was that there are 4 lines on the poles and one is about 2 ½ meters from her house, while another is 2 feet from the house to the pole.  She complained to Kabusu UMEME office and Manager twice but no response.  She then wrote a letter dated 16/05/2005 which was admitted as exhibit P4 and is on record.  PW1 then went to her Lawyers, M/S Kakooza and Kawuma Advocates who also wrote to UMEME, and UMEME wrote to her on 26/09/2005 promising to make requisite adjustments, basically removal of the high Voltage and restoration of the previous low voltage and re-routing the High Voltage for the school through elsewhere.  The letter from UMEME was exhibited as “P EX 7” amidst no objection from Counsel for Defendant, now Appellant.  Even copy of the letter from her Advocate to UMEME was admitted and marked “P EX 8”.

In the proceedings of the lower Court on page one under agreed facts, during the scheduling, it is stated:-

“The Plaintiff is the owner of the suit land.  In about March 2005 without the consent of the Plaintiff, the Defendant entered onto the Plaintiff’s land and constructed a high voltage power line on it.  It is Busiro Block 353 Plot 10 and 351 Plot 75 and 76, on which she operates a Hotel Business.  Defendant acknowledged the trespass but neglected to rectify the same.  Hence this suit.  Then Defendant urges that the consent was never needed to be obtained”

There is no doubt that scheduling is a mandatory process of Court litigation and facts admitted by both sides are taken seriously by the Courts.  So where the admission of trespass is so open, in clear plain English easily understood by a 1st year Law student at Makerere University and other Universities offering law Courses, then the Defendant, now Appellant could not make a u-turn that the consent was not necessary.  This is particularly in the context of the letters from both the Respondent and her Lawyers which were admitted without opposition from Defendant, now Appellant’s Counsel and even the letter from UMEME on 26/09/2005 undertaking to rectify or to make requisite adjustments which is also on record.  (See testimony of PW1, page 7 of the proceedings).  During the locus visit on 19th October, 2012, “the Plaintiff/Respondent showed Court the old pole stamp which was cut, and another pole replaced.  Next to the pole is a summer house which Plaintiff informed Court is for functions.  There are 3 power lines almost passing over the summer house, too close to the house”. The above observations are on page 37 of the lower Court proceedings.  The Court observed that the power lines cut across the Plaintiff’s entire land from one end to another.  Mr. Sebuliba for Defendant/ now Appellant had no questions to ask. 

In her Judgment on page 3, the trial Magistrate made reference to S.67(4) of the Electricity Act, Cap 145, Laws of Uganda. For avoidance of doubt it provides:-

“67(4) A licensee shall except for maintenance or repair of an electric supply line, before entering any private land for purposes specified under sub-section (1), give sixty days’ Notice to the owner of the land, stating as fully and accurately as possible the nature and extend of the acts intended to be done.”

The trial Magistrate noted, and correctly so in my view that from the evidence on record, the Defendant did not enter the Plaintiff’s land for purposes of repair and maintenance.  That the main purpose was to improve or upgrade power supply.  Since the Plaintiff was not given the 60 days notice as required under the law, and as upgrading meant removal of whatever  existing  lines or poles and construction of new and more powerful ones, then the entry was unlawful and amounted to trespass. I therefore agree with the findings of the Trial Magistrate that the Appellant was liable in trespass.  The first ground of Appeal therefore fails.

The second ground of Appeal is that the learned Magistrate erred in law and fact when she found that the Appellant needed the consent of the Respondent to upgrade its services.  The second ground of Appeal has more or less been covered while handling the first ground.  Counsel for the Appellant labored with the definition of “maintenance” from Black’s Law Dictionary to mean – “The care and work put into property to keep it operating and productive, general repair and upkeep” whereas I agree with the above definition of maintenance, all the same it has nothing to do with construction and installation of new heavy and high voltage poles and three running powerful cables.

According to the testimony of PW2, Ndaula Mary Francis, on page 12 of the proceedings, PW2 saw a newly installed power line near the home of the Plaintiff/Respondent.  PW2 stated:- “That power line had been installed near her home, which is dangerous to life and her request to remove and relocate has been refused and the power line is there up to date.”

The same information of new construction and installation as opposed to repair or maintenance was relayed to Court by PW3, Kakooza Aloysius, who holds a Diploma in Electrical Engineering from Kyambogo Polytechnic of 1994, and working with an International catholic company in the Republic of South Sudan.  He stated:-

“At that place I saw 2 poles one carrying power of 415 volts planted at a distance of 2-3 feet from her house and another 2-3 metres from another house.  Both houses are within the gardens’ compound.  The power line has 3 running cables whose dimensions suggest that they are 415 volts, which ends into a transformer……….” (that is on page 14 of the proceedings).

Then on page 15, PW3 went on to testify that according to his knowledge, once a human being is exposed to sufficiently large area of magnetic field, he/she can have negative biological effects in her body such as Neausea, anxiety, stimulation of nerves, loss of libido, etc.  I wish to emphasize that loss of libido is very dangerous as libido is the epitome of survival and sustenance of human life, and is the purposeful enjoyment and stay of human beings while on this mother earth.  Be that as it may and in the circumstances, in view of the new constructions and installations put up by the Appellant on the Respondent’s land, the consent of the Respondent was a necessary requirement under the Electricity Act.  I am therefore unable to fault the trial Magistrate on that finding and so ground No. 2 of Appeal also fails.

The third ground of Appeal was that the learned trial Magistrate erred in law and fact when she awarded excessive damages to the Respondent.

Counsel for the Appellant urged that the Plaintiff did not adduce any direct medical or expert evidence to prove that the health complications she was complaining about were as a result of the high voltage lines put on her land.  And that by awarding such a sum of Shs. 20,000,000/=, the trial Magistrate occasioned a miscarriage of justice.  Counsel for the Respondent urged that from the phrasing of the ground of Appeal, the Appellant is convinced that the Respondent was entitled to damages, but that they were excessive.  Counsel for the Respondent further submitted that the Appellant seems lost in a web of who derives remedies in law and that its arguments are premised on what would have been the philosophy had the trial Magistrate made findings in Appellant’s favour. 

And lastly that whereas the Appellant seems to urge that there is a pronounced formula for assessment of general damages so as to discern what amounts to excessive, that no such formula was put forward.  I have equally considered the submissions of both sides on the issue of general damages.  Before I discuss it further, I wish to refer to the evidence of PW1 on pages 8, 9  and 10 of the proceedings.

In her testimony on page 8, PW1 stated that the lines complained of are still there.  She added:-

“As a result of that in July 2006, I started having high palpitations.  I then went to Mulago Heart Institute and I was diagnosed with regurgitation of blood pump to and from.  In shock I had to go to UK to confirm that diagnosis and the Doctors confirmed.  They never disclosed the source but I suspect it is a result of the high voltage lines over my place….” 

PW1 also testified that she went to Kampala imaging Centre on Bwaise Road and they found a Marsh in her breast, which took her to Mulago for an operation in 2007.  The admissions and discharge from Kampala Imaging Centre and Mulago Hospital were admitted as “P1D1”.  PW1’s further testimony was that in February 2008, she was diagnosed with a lesion in the Cervix that could have turned cancerous.  And that on 17/02/2008, the uterus was totally removed.  Documents were admitted in Court as “p1D2”.  PW1 concluded that she is not mentally and physically well.  And that the sequence of sickness and the psychological torture of the presence of the lines are fresh and haunting and she is still having fresh wounds.  She also added that her business has been adversely affected. 

During cross-examination by Counsel for the Defendant, she stated that it was the high voltage lines as the illness started and persisted during and after the installation of the lines.  She also reiterated that the second high voltage lines replaced the low voltage lines and poles and that the Appellant/Defendant never got permission from her.  And in re-examination on page 11 of the proceedings, the Plaintiff/Respondent emphasized that before March 2005, she had no illness of palpitations.  And that she was energetic, normal and active without any complaints.

Furthermore and as already noted, the testimony of PW3, Kakooza Aloysious, an Electrical Engineer revealed that once a human being is exposed to sufficiently large area of magnetic field, there can be negative biological effects on her body.

When perusing the internet on the effects of high voltage transmission lines on humans on the website electrical notes. Word press.com/2012/02/17 -  It is stated that since the human body is composed of some biological materials like blood, bone, brain, lungs, muscles, skin, e.t.c., that charges on a power line attract or repel free charges within the body.  It is further stated that the magnitude of surface charge and internal body currents by any source of power frequency fields depend on the distance from the body to the source.  Short term health problems are listed as headaches, fatigue, anxiety, insomnia, rashes and muscle pain, while long term health problems are listed as risk of leukemia, risk of cancer and risk of neurodegenerative diseases.

From the little research on the internet as illustrated above, and from the Respondent’s testimony as to the suffering, torment, psychological torture and inconvenience and in the circumstances of the case, I cannot fault the trial Magistrate for awarding the general damages to the Respondent.

In any case, the Appellant has not come out to dispute the gravity of the torment and torture and psychological breakdown of the Respondent or the inconvenience suffered.  And that is why the record of proceedings revealed intentions to settle the matter out of Court and reach a settlement.  Pages 21 and 22 of the record is clear to that effect.  Paragraph 3 on page 22 states:

“Defence Counsel: I need to put the records straight.  As ultimated to this Court last time, the Defendant has as a gesture of good will contemplating re-locating the high voltage line so that it does not traverse the Plaintiff’s land.  This has to be done in the spirit of resolving this matter which has been going on for fairly long time…..”

In my view, the above statement from Defence Counsel was a clear illustration that there was a problem caused to the Plaintiff now Respondent.  So this Court cannot in any way allow the third ground of Appeal.  And the law is now well settled that an Appellate Court will not interfere with an award of damages by a trial Court unless it acted on a wrong principle of law.  The Supreme Court case of Robert Coussens Vs Attorney General, Civil Appeal No. 8 of 1999 refers.

In the present case and in view of what I have already outlined, I find and hold that the trial Magistrate acted properly.  So ground No. 3 of Appeal also fails.

Having found and held that all the grounds of Appeal have failed, I do hereby proceed to dismiss this Appeal, and confirm the Judgment and Orders of the lower Court.

I also award costs to the Respondent.

………………………

W. M. MUSENE

JUDGE

06/10/2014

06/10/2014

07/10/2014

Mr. Paul Kawesi for UMEME, LTD, Appellant.

Respondent absent.

Counsel for Respondent absent

Aida Mayobo Court Clerk present

……………………..

W. M. MUSENE

JUDGE

Court:  Judgment read out in open Court.

…………………….

W. M. MUSENE

JUDGE