PRINCIPLES GOVERNING THE AWARD OF

DAMAGES IN CIVIL CASES

A PAPER PRESENTED BY

HON. MR. JUSTICE BART M. KATUREEBE,

JSC

AT
THE INDUCTION COURSE OF NEWLY
APPOINTED JUDGES OF HIGH COURT OF
UGANDA
ENTEBBE RESORT BEACH HOTEL
WEDNESDAY, 18TH JUNE 2008
 PRINCIPLES GOVERNING THE AWARD OF DAMAGES IN CIVIL
CASES
Hon. Justice Bart M. Katureebe, JSC*

A. INTRODUCTION

1. My chief task at this function is to address your Lordships on the

rules and principles in awarding damages generally. This is by no
means a simple task and in my brief introduction, I shall tell you
why.

2. Many of your Lordships will agree with me that the whole region of
inquiry into damages is one of extreme difficulty. It is impossible to
lay down a single principle upon which you can give damages. It is
often said that lawyers, and perhaps judges as well, are not very
fond of figures. However, in all civil cases, your Lordships shall be
called upon to approximate a sum of money for the plaintiff’s loss or
inconvenience arising out of a violation of a legally enforceable right
or interest. This sum of money is in law called “damages” and the
plaintiff’s loss or inconvenience, a “damage”. The law recognizes
various kinds of damages, but I shall return to the classification of
damages later.

3. My experience has taught me that damages are usually incapable of

precise assessment. You cannot by any arithmetical calculation
establish what is the exact amount of money which would represent
such a thing as the pain and suffering which a person has
undergone by reason of an accident. However, the law recognises
that as a topic upon which damages may be given. It is trite law

*
I would like to thank Isaac K. Ssemakadde, Esq. and Bryant Kairugavu, Esq., my law clerks at the
Supreme Court of Uganda, who have helped in the preparation of this paper.
 that the difficulty of assessing damages is no reason for the court
not granting them.

4. As long as the plaintiff has proved facts on which an approximation

can be based, the courts must award a reasonable sum as damages
unless, of course, there is a public policy consideration which
prevents such a plaintiff from claiming damages on the facts of that
particular case. Damages must not be too high or too low with
regard to the circumstances of a particular case. Damages should
not be awarded from sentimental considerations.

5. To achieve the ends of justice, there are well established rules and
principles that govern the award of damages in civil cases. These
rules and principles are firmly rooted in the common law. As you
already aware, the common law and doctrines of equity are part of
the law applicable in Uganda, thanks to the provisions of S. 14(2)
of the Judicature Act, Cap 13.

6. Since its independence in 1962, Uganda has developed its own

common law although it has also borrowed heavily and continues to
borrow from the common law tradition of the British and
Commonwealth courts. I have endeavoured to refer to some of the
leading authorities on damages not only from Uganda, but also East
Africa and the Commonwealth.

7. This paper does not pretend to encompass the full range of rules
and principles which govern the award of damages but it does,
however, seek to achieve a less lofty aim, that of making the
subject sufficiently interesting for your Lordships to refresh your
memory on the matter of damages. If I achieve this aim, I shall be
satisfied.
B. DEFINITION AND CLASSIFICATION OF DAMAGES

I. DEFINITION OF DAMAGES

1. Damages are the pecuniary recompense given by process of law to

a person for the actionable wrong that another has done him. 1 Lord
Greene MR, in Hall Brothers SS Co. Ltd V. Young2 defined the
term damages thus:

“‘Damages’ to an English lawyer imports this idea,

that the sums payable by way of damages are sums
which fall to be paid by reason of some breach of
duty or obligation, whether that duty or obligation is
imposed by contract, by the general law, or
legislation.”

In deed, this is the way damages are broadly appreciated in most

jurisdictions in the Commonwealth, including Uganda.

2. Damages are, in their fundamental character, compensatory, not

punishment. Whether the matter complained of is a breach of
contract or tort, the primary function of damages is to place the
plaintiff in as good a position, so far as money can do it, as if the
matter complained of had not occurred. As we shall see later, this
primary notion is controlled and limited by various considerations,
 but the central idea remains compensation. Accordingly, damages
are usually measured by the material loss suffered by the plaintiffs.
As a general rule, the plaintiff must not receive more, nor should he
receive less than the appropriate measure of damages
commensurate with his or her ‘material loss’.

3. However, in certain circumstances, the court may award more than

the normal measure of damages, by taking into account the
defendant’s motives or conduct, and in this case the damages may
be ‘aggravated damages’ which are compensatory or ‘exemplary
damages’ which are punitive.3 I shall return to this distinction later.

4. A statute may create a civil action for damages directly, and may
also define the criteria for the assessment of damages. By statute,
common law remedies may be excluded or limited, or a limit may
be put on the damages recoverable.4 Examples of such statutes in
Uganda include the Law Reform (Miscellaneous Provisions)
Act, Cap 79; the Employment Act5 2006, National
Environment Act6, Cap 153; Occupation Safety and Health
Act7 2006; and Workers Compensation Act, Cap 225. In this
context, damages may be referred to as ‘statutory damages’.

II. CLASSIFICATION OF DAMAGES

1. Generally speaking, there are three kinds of damages: general

damages, special damages and nominal damages.

General and special damages

2. General damages, according to Lord Macnaghten in the oft-cited
case of Stroms V. Hutchinson8, are such as the law will presume
to be the direct natural or probable consequence of the act
 complained of. Special damages, on the other hand, are such as the
law will not infer from the nature of the act. They do not follow in
the ordinary course. They are exceptional in their character, and,
therefore, they must be claimed specially and proved strictly.

3. In deed, because of their peculiar nature, the law requires a plaintiff

to give warning in his pleadings of the items constituting his claim
for special damages with sufficient specificity in order that there
may be no surprise at the trial. See Musoke v. Departed Asians
Custodian Board [1990-1994] EA 219; Uganda Telecom v.
Tanzanite Corporation [2005] EA 351; Mutekanga v. Equator
Growers (U) Ltd [1995-1998] 2 EA 219; Uganda Breweries
Ltd. v. Uganda Railways Corporation Supreme Court Civil
Appeal No. 6 of 2001 (unreported)

4. In current usage, ‘special damages’ relate to past pecuniary loss

calculable at the date of trial, whilst ‘general damages’ relate to all
other items of damage whether pecuniary or non-pecuniary. Thus in
a personal injuries claim, special damages encompass past
expenses and loss of earnings, whilst ‘general damages’ will include
anticipated future loss as well as damages for pain and suffering
and loss of amenity.9 See Uganda Commercial Bank v. Deo
Kigozi [2002] 1 EA 293

5. In other words, special damages, both in the law of contract and

tort, denote the damages arising out of the special circumstances of
the case which, if properly pleaded, may be superadded to the
general damages which the law implies in every breach of contract
and every infringement of an absolute right.10
6. It is important to note that the term ‘special damage’ is sometimes
used in actions on the case brought for a public nuisance, such as
an obstruction of a river or highway, to denote the actual and
particular loss which the plaintiff must allege and prove beyond
what is sustained by the general public. 11

Nominal Damages
7. Nominal damages have been famously referred to as a mere peg on
which to hang costs. According to Maule J. in Beaumont V.
Greathead12, nominal damages, in fact, mean a sum of money that
may be spoken of, but that has no existence in point of quantity. For
instance, where the seller brings an action for the non-acceptance
of goods, the price of which has risen since the contract was made.
In practice, a small sum of money is awarded; say, one dollar or its
equivalent.

8. However, nominal damages must be distinguished from, small or

contemptuous damages, which indicate the court’s opinion that the
action ought not to have been brought. 13 This distinction is borne
out by Njareketa v. Director of Medical Services Mulago 14
where Sir Barclay Nihill C.J. reduced a substantial award that the
trial judge had made in favour of the appellant and termed as
“merely nominal damages” to one cent and set aside the learned
trial judge’s order as to costs. The facts of that case make for
interesting reading.

9. There is a great deal of confusion on this point, and for clarification,

allow me to quote from the famous passage of Lord Halsbury C in
The Medina15:
 “‘Nominal damages’ is a technical phrase, which
means that you have negatived anything like real
damage, but that you are affirming by your real
damage that there is an infraction of a legal right,
which, though it gives you no right to any real
damages at all, yet gives you a right to the verdict
or judgment because your legal right has been
infringed. But the term ‘nominal damages’ does not
mean small damages.” (emphasis mine)

10. Thus, a plaintiff in an action for wrongful deprivation may recover

substantial damages for the deprivation, though he may have
incurred no out-of pocket expenses consequent thereon. By way of
conclusion on this point, it may be appropriate to quote again from
Lord Halsbury:

“A plaintiff is entitled to ‘nominal damages’ where

a) his rights have been infringed, but has not in
fact sustained any actual damage from the
infringement, or he fails to prove that he has;
or
b) although he has sustained actual damage, the
damage arises not from the defendant’s
wrongful act but from the conduct of the
plaintiff himself; or
c) the plaintiff is not concerned to raise the
question of actual loss, but brings his action
simply with the view of establishing his right.”
16

Exemplary damages
11. A keen reader of our law reports will soon observe that litigation
lawyers in Uganda have a strange obsession for exemplary
damages yet very few actually understand the nature and essence
of this kind of damages. They will jump at every opportunity to
declare in their plaints, “We want exemplary damages, My Lord.”
Mercifully for their adversaries, the courts of judicature do not at all
share the lawyers’ enthusiasm and have, in fact, safely avoided
setting a dangerous precedent.17

12. But what exactly are exemplary damages? The dictum of

McCardie J. Butterworth V. Butterworth18 is as helpful today as
it was the past century:
“Simply put, the expression exemplary damages
means damages for ‘example’s sake’. These kinds of
damages are clearly punitive or exemplary in
nature. They represent a sum of money of a penal
nature in addition to the compensatory damages
given for the pecuniary or physical and mental
suffering.”

13. The award of exemplary damages was considered by the House

of Lords in the landmark case of Rookes V. Barnard.19 Lord Devlin
stated that in his view there are only three categories of cases in
which exemplary damages are awarded, namely:
a) where there has been oppressive, arbitrary, or
unconstitutional action by the servants of the government;
b) where the defendant’s conduct has been calculated by him
to make a profit which may well exceed the compensation
payable to the plaintiff; or
c) where some law for the time being in force authorises the
award of exemplary damages.
Furthermore, according to Lord Devlin in Rookes V. Barnard, above,
when considering the making of an award of exemplary damages,
three matters should be borne in mind:
(a) the plaintiff cannot recover exemplary damages unless he
or she is the victim of punishable behaviour,
(b) the power to award exemplary damages should be used
with restraint, and
(c) the means of the parties are material in the assessment of
exemplary damages.

14. It has been held in two cases, Kiwanuka v. Attorney General

(Uganda)20, and Visram & Karsan v. Bhatt21, by the Court of
Appeal for Eastern Africa that the dicta of the House of Lords in
Rookes V. Barnard, above, accurately stated the law of East Africa
with respect to exemplary damages. The principles formulated in
Rookes V. Barnard, above, were also endorsed by Spry VP of the
East Africa Court of Appeal in the oft-cited case of Obongo &
Another v. Municipal Council of Kisumu [1971] EA 91; by the
High Court of Uganda in following cases: Ongom & Another v.
Attorney-General [1979] HCB 267; Kyambadde v. Mpigi
District Administration [1983] HCB 44; Nsaba Buturo v.
Munansi Newspaper [1982] HCB 134; Ntabgoba v. Editor-in-
chief of the New Vision & Another [2004] 2 EA 234; Bhadelia
Habib Ltd. v. Commissioner General, URA [1997-2001] UCL
202; and most recently by the Supreme Court of Uganda in the
landmark case of Fredrick J. K. Zaabwe v. Orient Bank &
Others Supreme Court Civil Appeal No. 4 of 2006
(unreported).
15. In all the cases I have just referred to, the court was firmly
aware of the nature of exemplary damages and when they should
be awarded. By way of emphasis, however, I shall restate here the
rationale behind the award of exemplary damages: exemplary
damages should not be used to enrich the plaintiff, but to punish
the defendant and deter him from repeating his conduct.

16. It is my considered view that in an action where an outrage has

been committed against the plaintiff by the defendant and the court
forms the opinion that it should give punitive damages to register
its disapproval of the wanton and willful disregard of the law, it is
entirely proper to award exemplary damages in addition to general
damages and special damages, if any.22 However, an award of
exemplary damages should not be excessive. The punishment
imposed must not exceed what would be likely to have been
imposed in criminal proceedings, if the conduct were criminal. 23 All
circumstances of the case must be taken into account, including the
behaviour of the plaintiff and whether the defendant had been
provoked.24 For instance, although abuse of police powers should
almost always attract exemplary damages, this is by no means a
statement of an independent principle. Litigation lawyers would, of
course, disagree.
AGGRAVATED DAMAGES
17. There is a thin line between exemplary damages and aggravated
damages, and as a result, there has arisen a lot of confusion of
thought in this area. But actually the two concepts are different, as
the Supreme Court of Uganda recently explained in the landmark
case of Fredrick J. K. Zaabwe v. Orient Bank & Others
Supreme Court Civil Appeal No. 4 of 2006 (unreported). 25
18. Aggravated damages are “extra compensation to a plaintiff for
injury to his feelings and dignity caused by the manner in which the
defendant acted. Exemplary damages, on the other hand, are
damages, which in certain circumstances only, are allowed to
punish a defendant for his conduct in inflicting the harm complained
of.”26 For the distinction between these two species of damages,
see also the following cases: Obongo & Another v. Municipal
Council of Kisumu [1971] EA 91; Ongom & Another v.
Attorney-General [1979] HCB 267; Kyambadde v. Mpigi
District Administration [1983] HCB 44; Nsaba Buturo v.
Munansi Newspaper [1982] HCB 134; Ntabgoba v. Editor-in-
chief of the New Vision & Another [2004] 2 EA 234; Bhadelia
Habib Ltd. v. Commissioner General, URA [1997-2001] UCL
202; Ahmed Ibrahim Bholm v. Car & General Ltd. Supreme
Court Civil Appeal No. 12 of 2002.

19. For a finer distinction between exemplary damages and

aggravated damages, it is appropriate again to refer the famous
passage of Lord Devlin in the landmark case of Rookes v.
Barnard, above:
“English law recognized the awarding of exemplary
damages, that is, damages whose object was to
punish or deter and which were distinct from
aggravating damages (whereby the motives and
conduct of the defendant aggravating the injury to
plaintiff would be taken into account in assessing
compensatory damages)…The fact that the injury to
the plaintiff has been aggravated by the malice or
by the manner of doing the injury, that is, the
insolence or arrogance by which it is accompanied,
is not justification for an award of exemplary
 damages; aggravated damages can do in this type
of case what otherwise could be done by exemplary
damages.”

20. From the foregoing, it is imperative that your Lordships

comprehend the distinction between aggravated damages and
exemplary damages. Aggravated damages are, by their nature,
intended to compensate the plaintiff whereas exemplary damages
are, by their nature, intended to punish the defendant. 27

21. When is it proper to award aggravated damages? The short

answer is when aggravating circumstances exist in the act or
intention of the wrongdoer. Such damages, although compensatory,
may be given under a different head to represent a solatium to the
plaintiff for the distress, anxiety and further injury to feelings,
reputation, dignity etc caused by the manner in which the
defendant acted. In every case considered appropriate for the
award of aggravated damages, the court should always point out
what it considers to be ‘aggravating circumstances’ in order to
justify the basis of its award. Common examples of ‘aggravating
circumstances’ or ‘aggravating factors’ from the reported cases
include, but are not necessarily limited to, malice, ill-will, or
persistence in a falsehood exhibited by a defendant to the
detriment of the plaintiff. Consider the case of a publisher who
unsuccessfully attempts to plead and prove justification in answer
to a defamation claim arising out of a libelous article. 28 The courts
frown upon such an attitude on the part of the defendant and view
it as an aggravating factor.
Liquidated damages
22. Liquidated damages are unique to claims for breach of contract.
The parties may agree by contract that a particular sum is payable
 on the default of one of them, and if the agreement is not obnoxious
as a ‘penalty’ such a sum constitutes ‘liquidated damages’ and is
payable by the party in default. The term is also applied to sums
expressly made payable as liquidated damages under a statute. In
every other case, where the court has to quantify or assess the
damages or loss, whether pecuniary or non-pecuniary, the damages
are said to be ‘unliquidated’.29

23. In all cases where the parties by their contract agreed a sum
payable on the default of one of them, it is always a question of law
for the court to determine whether or not such a sum should be
paid by the party in default.

24. If this sum is a genuine pre-estimate of the loss which is likely to

flow from the breach, then it represents damages, called ‘liquidated
damages’ and it is recoverable without the necessity of proving the
actual loss suffered. If, however, the stipulated sum is not a genuine
pre-estimate of the loss but it is in the nature of a ‘penalty’ intended
to secure performance of the contract then, it is not recoverable,
and the plaintiff must prove what damages he can. 30

C. RULES AND PRINCIPLES IN AWARDING DAMAGES

I. Some general rules and principles

1. No damages can be given on an indictment.31

2. In all civil actions, the law does not so much regard the intent of
the actor as the loss and damage to the party suffering. 32 This
rule is recognised more in breach than observance. This does not
always means that a court proceeded on wrong principle. I shall
 explain this later. But for illustration, Your Lordships would do
well remember here the dicta of Sir Barclay Nihill CJ in
Njareketa, above:

“The appellant does not seem to comprehend that

but for the action of the second defendant, the
appellant’s children would now be fatherless and his
wife a widow. Instead of expressing gratitude to the
second defendant he is now pressing for payment by
the second defendant for injury done to him…what
timority!”33

3. The law presumes damage in respect of any unlawful act. 34 The

essence of this rule is that wherever there is a breach of a
contract or any injury to a legally enforceable right or interest,
nominal damages are recoverable even though the plaintiff may
not be able to prove actual damage. See Ongom & Another v.
Attorney-General [1979] HCB 267; Bhadelia Habib Ltd. v.
Commissioner General, URA [1997-2001] UCL 202; Ssendi
Edward v. Crown Beverages Ltd [2005] 2 ULSR 7; Karim
Hirji v. Kakira Sugar Works Ltd. [2005] 2 ULSR 60

4. Public policy considerations may operate to prevent a plaintiff

from claiming damages in an unworthy cause. Courts are the
custodians of public morals and they may justifiably preclude a
plaintiff from an award of damages in order to register their
disapproval with the plaintiff’s case if it offends public policy or
outrages morality. In my view this power is implicit in the
provisions of s. 14(2) (c) and s. 14(3) of the Judicature Act,
Cap 13, which read in relevant, and I quote:
 “14. Jurisdiction of the High Court.

(2) Subject to the Constitution and this Act, the

jurisdiction of the High Court shall be exercised—
(a)………………………………………………………………………
(b)………………………………………………………………………
(c) Where no express law or rule is applicable to any
matter in issue before the High Court, in conformity
with the principles of justice, equity and good
conscience.

(3)The applied law, the common law and the

doctrines of equity shall be in force only insofar as
the circumstances of Uganda and of its peoples
permit, and subject to such qualifications as
circumstances may render necessary.”

For instance, in Njareketa v. Director of Medical Services

Mulago, above, the Court of Appeal for Eastern Africa held that
a twenty four year old appellant, with a wife and children
depending on him, who withdrew his consent to a life-saving
medical operation, was not entitled to nominal damages but
rather contemptuous damages only for the trespass committed
against him by a skilled doctor. Delivering the opinion of the
Court, Sir Barclay Nihill CJ said:
“It is not due to our lack of compassion for the
appellant but to the realization that it is necessary
to protect the government medical department and
all surgeons from unscrupulous claims of this nature
that we reduce the nominal damages awarded to the
appellant to one cent and set aside the learned
 judge’s order as to costs. The appellant may
certainly be a fit subject for charitable assistance,
but he is entitled to nothing in law, and he should
never have brought this action.”35

5. It is my hope that this case can remind your Lordships of your

public duty to keep mere busy bodies out of the court room.

6. In sum, the rules and principles I have briefly highlighted in this

part may appear to contradict themselves or other rules of the
common law and equity. That may be so but it should not be
strange for a judicial mind in the Commonwealth. The rules of
the common law and equity must be given a harmonious
interpretation taking into regard the circumstances of the case at
bar. I find it important to clarify this matter because in future,
some lawyers appearing before your Lordships may implore you
to hold that one rule of the common law excludes another. Such
an approach to the rules and principles governing damages can
only have the effect of creating absurdity and exacerbating the
confusion that underlies this area of the law.

II. Whether proof of actual damage is essential

1. We have already observed above that whenever an injury is done to

a right, the law will presume damage. Thus, as a general rule, proof
of actual damage is not essential to entitle a plaintiff to an award of
damages of breach of contract or injury to a right. Nominal
damages will be enough in such a case. Nominal damages here
mean a reasonable or moderate sum.
2. However, in certain circumstances, actual damage must be proved
if a plaintiff is to be awarded any damages at all. These cases
include incidences where a corporate entity alleges that it has been
defamed36; or actions alleging an interference by a third party with
a contractual relationship between A and B; so, if C procures B to
breach B’s agreement with A, A must prove actual damage to
maintain a claim for damages against C. 37 Another common
example is that of product liability claims. A plaintiff customer must
prove actual damage in order to sustain a civil claim for damages
against the manufacturer: See Ssendi Edward v. Crown
Beverages Ltd. [2005] 2 ULSR 7.

3. It is trite law that in all cases where special damages are claimed,
they must be pleaded with sufficient specificity and strictly proved:
See Musoke v. Departed Asians Custodian Board [1990-1994]
EA 219; Uganda Telecom v. Tanzanite Corporation [2005] EA
351; Mutekanga v. Equator Growers (U) Ltd [1995-1998] 2 EA
219; Uganda Breweries Ltd. v. Uganda Railways Corporation
Supreme Court Civil Appeal No. 6 of 2001 (unreported)

III. WHERE ASCERTAINMENT IS DIFFICULT OR IMPOSSIBLE

1. It is an ancient rule of the common law that the difficulty of

assessing damages is no reason for the court not granting
them.38 Indeed, the difficulty of assessing damages is not a
ground for giving only a nominal sum. 39 Thus, even where it is
impossible to assess the appropriate measure of damages with
certainty and precision, the defendant must not be relieved of
his liability to pay the plaintiff any damages at all in respect of a
breach of contract or any other actionable wrong. 40 In all such
 cases where ascertainment of damages is difficult, the court
must attempt to ascertain damage in some way or other. 41

2. In my view, the sum total of the foregoing dicta is that a trial

judge must not at all abdicate his or her duty to assess the
appropriate measure of damages. In deed, best judicial practice
dictates that even where the plaintiff fails to prove his claim, a
1
12 Halsbury’s Laws (4th edn) para 1202
2
[1939] 1 KB748, at 756 (CA).
3
12 Halsbury’s Laws (4th edn) para 1112
4
12 Halsbury’s Laws (4th edn) para 1115
5
See for instance sections 66(4), 67(4), 70(3), 78, 79, 87, 88, 89, 90, 92, and 96(4) of the Employment Act,
2006.
6
See for instance, s. 67 of the National Environment Act which enables the award of compensation on an
environmental restoration order.
7
See for instance s. 102 of the Occupational Safety and Health Act which enables the application of a
statutory penalty to the compensation of the victim of a statutory offence.
8
[1905] AC 515
9
12 Halsbury’s Laws (4th edn) para 1113
10
Ashby V. White [1703] 2 Ld Raym 936
11
Ratcliffe V. Evans [1892] 2 Q B 524 at 528, 529, (CA). See also Byabazaire V. Mukwano Industries
(unreported)
12
(1846) 2 CB 494; 135 ER 1039
13
12 Halsbury’s Laws (4th edn) para 1112
14
[1950] 17 EACA 60. The appellant, a patient of 24, had a malignant growth on his leg: it was found
necessary to amputate his leg to save his life; the patient at first consented but afterwards withdrew his
consent. The second defendant, a government surgeon, went on to perform the life-saving medical
operation and the plaintiff successfully brought an action in the High Court of Uganda against the
defendants for damages arising out of the trespass committed to his person calculated at 30,000/=. The trial
judge awarded the plaintiff what he termed as ‘nominal damages’ in addition to costs against the
defendants. The appellant appealed for a larger quantum of damages and the defendants cross appealed on
the issue of damages. Held, But for the action of the second defendant, the appellant’s children would now
be fatherless and his wife a widow. Instead of expressing gratitude to the second defendant he is now
pressing for payment by the second defendant for injury done to him…what timority! He has in fact
suffered no damage by reason of the trespass. This being the case we think the damages fixed by the
learned trial judge, although he regarded them as merely nominal, are in fact high taking into regard the
class and community from which the appellant comes… It is not due to our lack of compassion for the
appellant to the realization that it is necessary to protect the government medical department and all
surgeons from unscrupulous claims of this nature that we reduce the nominal damages awarded to the
appellant to one cent and set aside the learned judge’s order as to costs. The appellant may certainly be a fit
subject for charitable assistance, but he is entitled to nothing in law, and he should never have brought this
action.
15
The Medina [1900] AC 113; [1900 – 3] ALLER Rep 126.
16
12 Halsbury’s Laws (4th edn) para 1114
17
Except for the dicta in Sindano V. Ankole District Administration Civil Suit No. 463 of 1969 which were
based on the dissent of other Commonwealth courts with respect to the principles formulated in Rookes v.
Barnard [1964] All ER 367. See E. Vietch, The Law of Tort in East Africa, pp. 252-253 for the
commentary on this odd case.
18
Butterworth V. Butterworth & Englefield [1920] P 126
 trial judge should still put on record his or her observations
relating to the appropriate measure of damages he would have
awarded in the event that the plaintiff had otherwise succeeded
in proving his claim. This would enable the appellate courts to
review his or her assessment of damages, if necessary, and
make appropriate final orders without having to remit the case to

19
[1964] ALLER 367 at 410, 411. In some courts within the Commonwealth, there have been some
criticisms of the principles formulated by the House of Lords in Rookes V. Barnard. See for example
Australian Consolidated Press Ltd. V. Uren [1967] 3 All ER 523, PC
20
EACA No. 19 of 1965 (C.A.)
21
[1965] EA 789
22
See for instance London v. Ryder [1953] I All ER 741, where the court utilized the award of exemplary
damages to teach a defendant who had acted with a cynical disregard of the plaintiff’s rights a lesson that
“a tort does not pay.”
23
Per Spry V.P. in Obongo & Another v. Municipal Council of Kisumu [1971] EA 91
24
See O’Connor v. Hewiston [1979] Crim LR 46,CA; Archer v. Brown [1985] QB 401
25
“With regard to exemplary damages, the appellant seems to equate them with aggravated damages.
SPRY, V.P. explained the difference succinctly in OBONGO -Vs- KISUMU COUNCIL [1971] EA 91, at
page 96; “The distinction is not always easy to see and is to some extent an unreal one. It is well
established that when damages are at large and a court is making a general award, it may take into
account factors such as malice or arrogance on the part of the defendant and this injury suffered by the
plaintiff, as, for example, by causing him humiliation or distress. Damages enhanced on account of such
aggravation are regarded as still being essentially compensatory in nature. On the other hand, exemplary
damages are completely outside the field of compensation and, although the benefit goes to the person who
was wronged, their object is entirely punitive.”

In the circumstances of this case, as discussed in this judgment, I do not think this is a case that qualifies for
an award of exemplary damages as envisaged in ROOKES -Vs- BARNARD AND OTHERS [1964] A.C.
1129, which is very well considered by SPRY – VP in his judgment in the Obongo Case (supra) at page 94.
The gist of that decision is that exemplary damages may be awarded in this class of case. In the words of
SPRY, V.P. at P. 94 these are: “first, where there is oppressive, arbitrary or unconstitutional action by the
servants of the government and, secondly, where the defendant’s conduct was calculated to procure him
some benefit, not necessarily financial, at the expense of the plaintiff. As regards the actual award, the
plaintiff must have suffered as a result of the punishable behaviour; the punishment imposed must not
exceed what would be likely to have been imposed in criminal proceedings if the conduct were criminal;
and the means of the parties and everything which aggravates or mitigates the defendant’s conduct is to be
taken into account. It will be seen that the House took the firm view that exemplary damages are penal, not
consolatory as had sometimes been suggested.”

It has to be borne in mind that the respondent were private persons and not acting on behalf of any
government or authority.

I think this is a case where the appellant should receive enhanced compensatory damages not only for the
unwarranted and wrongful deprivation of his property, but also because of the conduct and apparent
arrogance of the respondents. In my view, this is not the type of case where the respondents are likely to
repeat their wrongs on the appellant.

In considering an award of enhanced or substantial general damages, I must take into account the station in
life of the appellant. He is a senior lawyer and a respected member of society. He has a family who all
lived on the property from which they were wrongfully evicted. Part of the property was used as offices for
 the trial court for assessment of damages. This practice could
help us achieve expediency in the administration of justice.

3. The approach I have just suggested is not entirely

unprecedented. In deed, I invite your Lordships to examine the
judicial approach adopted by the High Court of Uganda and

his law chambers. The appellant testified that as a result of this eviction, he had to find alternative
accommodation for his family. He lost not only some of his books and files but also his clients. His
livelihood as a lawyer was compromised. He suffered much humiliation and distress.

He has since been denied use of his property for the period of about 10 years. The appellant had made a
total claim for shs.307,000,000=. I am of the view that this is a case where substantial damages should be
awarded. Given the circumstances of this case, I would award to the appellant Shs.200,000,000/= (two
hundred million) as aggravated damages. Per Katureebe JSC, who delivered the opinion of the Court.
26
Per McCarth J. in Huljich V. Hall [1973] 2 NZLR 279 at 287; a case from New Zealand.
27
For the essential distinction between aggravated and exemplary damages, it is often said that the former
represents a solatium to the plaintiff, and the latter a punishment of the defendant. Per Mahon J. in A v. B
[1974] 1 NZLR 673 at 677. See also Loomis V. Rohan (1974) 46 DLR (3d) 423.
28
See for instance Ntabgoba v. Editor-in-chief of the New Vision & Another [2004] 2 EA 234
29
12 Halsbury’s Laws (4th edn) para 1109
30
12 Halsbury’s Laws (4th edn) para 1116. See also Dunlop Pneumatic Tyre Co. Ltd. V. New Garage &
Motor Co. Ltd. [1915] AC 79 at 86, 87 per Lord Dunedin: “The question whether a sum stipulated is a
penalty or liquidated damages is a question of construction to be decided upon the terms of each particular
contract, judged of as at the time of the making of the contract, not at the time of the breach.”
31
Seeles’ case (1639) Cro Ear 557; 79 ER 1080
32
Bessey V. Olliot and Lambert (1682) T Raym 467; 83 ER 244.
33
See endnote 14.
34
In the oft-cited case of Ashby v. White 92 ER 126, Holt CJ stated the principle thus: “Every injury
imports a damage, though it does not cost the party a shilling and it is impossible to prove the contrary.
Any injury imports a damage when a man is hindered of his rights.”
35
For a similar approach, see also Udale V. Bloomsbury Area Health Authority [1983] 2 ALLER 522,
which held that it was contrary to public policy to award damages to a mother whose child had been
conceived after the mother had undergone a negligently performed sterilization operation to cover the cost
of carrying out necessary extensions to the home and of bringing up the child because:
a) It was highly undesirable that the child should learn that a court had declared that his life
or birth was a mistake and that he was unwanted or rejected.
b) The appropriate measure of damages in such a case would denigrate virtue.
c) Medical practitioners who would incur liability would be placed under pressure to
authorize or carry out abortions, and
d) The birth of healthy, a normal baby was a beneficial, not a detrimental, event.
However, those public policy considerations did not preclude an award of damages for lost income and also
of pain, suffering, inconvenience, anxiety and the disruption to the family’s finances caused by the
unexpected pregnancy.
36
The People v. The Lord’s Bar- reported in East African Law Reports.
37
Per Kennedy L.J. in National Phonograph Co. Ltd V. Edison-Bell [1908] 1 Ch 335.
38
Bovet V Waletr (1917) 62 Sol Jo 104.
39
Ungar V. Sugg (1892) 9 RPC 114, CA.
40
: Chaplin V. Hicks [1911] 2KB 786.
41
Hall V. Ross (1813) 1 Dow 201 3 ER 672, HL.
 approved by the Court of Appeal for East Africa in the well known
case of Felix Onama v. The Uganda Argus Ltd.42

4. For purposes of illustration of this principle, however, I shall

summarise that case here. The appellant sued the respondent
for libel in respect of a report of a press conference published in
the aftermath of the publication of a report of parliamentary
proceedings. The trial judge in the High Court of Uganda held,
inter alia, that the report of parliamentary proceedings was
privileged and the report of the press conference was not
defamatory of the appellant; in case he was incorrect, the
trial judge assessed the damages at sh. 50,000/= having
regard to a number of factors like the appellant’s social
and political standing. Spry J.A., on appeal, approved of the
approach followed by the trial judge and was unable to differ
from the trial judge’s findings. This case, in my view, is a good
precedent on the topic of the day.

5. Claims for damages based in various species of tort will always

present the court with special difficulties in assessment of
damages. The measures of damages for personal injury cases
and cases other than personal injuries are controlled by a set
different of rules and principles. Thus, apart from the
fundamental principles relating to the measure of damages
generally, the trial judge must also be alive to those principles
governing the case at bar specifically. Because of time and other
considerations, we cannot discuss these principles today.

6. From my experience, the following cases render ascertainment

of damages difficult or impossible for many a trial judge: actions
42
[1968] EA 511; [1969] EA 92
 brought under the Law Reform Miscellaneous Provisions
Act, Cap 79 (death as a cause of action), defamation,
personal injury cases involving permanent disability, product
liability, medical malpractice, professional negligence, nuisance,
and cases involving continuing damage, inter alia. But to be fair
to judges, quite often the parties involved in litigation and their
lawyers are usually guilty of failure to produce evidence or
guiding parameters for the court’s consideration, with the result
that the trial judge finds himself in that unenviable position
where he is left with nothing at all but his own discretion to fall
back on if he is to determine the quantum of damages. I will
make more remarks on this undesirable practice later.

7. Another puzzling problem for the trial judge is whether he o she

should follow the scale of awards set by earlier cases. To what
extent is the court limited by the scale of damages set by earlier
cases? Judicial opinion is greatly divided on this point. I shall
reserve my views for the conclusion of this paper.
Interest on damages
8. The other area that presents difficulty in assessment of damages
is the question whether to include interest on an award of
damages. The jurisdiction of court to award interest on damages
is controlled by s. 26 of the Civil Procedure Act, Cap 71 which
reads as follows:

“s. 26 Interest.
(1) Where an agreement for the payment of
interest is sought to be enforced, and the court is of
opinion that the rate agreed to be paid is harsh and
unconscionable and ought not to be enforced by
 legal process, the court may give judgment for the
payment of interest at such rate as it may think just.
(2) Where and insofar as a decree is for the
payment of money, the court may, in the decree,
order interest at such rate as the court deems
reasonable to be paid on the principal sum adjudged
from the date of the suit to the date of the decree,
in addition to any interest adjudged on such
principal sum for any period prior to the institution
of the suit, with further interest at such rate as the
court deems reasonable on the aggregate sum so
adjudged from the date of the decree to the date of
payment or to such earlier date as the court thinks
fit.
(3) Where such a decree is silent with respect to
the payment of further interest on the aggregate
sum specified in subsection (2) from the date of the
decree to the date of payment or other earlier date,
the court shall be deemed to have ordered interest
at 6 percent per year.”

9. In my view, the law is clear on this point. However, a great deal

of litigation has evolved on the issue of interest on damages. It is
not proposed to discuss this question in detail within this paper.
Broadly speaking, however, the conflict that arises in this area
revolves around judicial interpretation of the word ‘reasonable.’
Although it would appear that the range of judicial opinion on
this matter is open, the Supreme Court of Uganda has
endeavoured to be consistent. See Sietco Vs. Noble Builders
U Ltd. Supreme Court Civil Appeal No. 31 of 1995;
Kengrow Industries Ltd. v. C.C. Chandran Supreme Court
 Civil Appeal No. 7 of 2001; Premchandra Shenoi & Anor v.
Maximov Oleg Petrovich Supreme Court Civil Appeal No. 9
of 2003; Ahmed Ibrahim Bholm v. Car & General Ltd.
Supreme Court Civil Appeal No. 12 of 2003; Administrator
General v. Bwanika James & Others Supreme Court Civil
Appeal No. 7 of 2003.

10. I find it appropriate here to quote from the passage of

Oder, JSC in Premchandra Shenoi & Anor v. Maximov Oleg
Petrovich, above, because it is a correct statement of the
principle relating to the award of interest on damages:
“In considering what rate of interest the respondent
should have been awarded in the instant case, I
agree that the principle applied by this Court in
SIETCO v. NOBLE BULDERS (U) Ltd Supreme Court
Civil Appeal No. 31 of 1995 to the effect that it is a
matter of the Court's discretion is applicable. The
basis of awards of interest is that the defendant has
taken and used the plaintiff's money and benefited.
Consequently, the defendant ought to compensate
the plaintiff for the money. In the instant case the
learned Justices of Appeal, rightly in my opinion,
said that the appellants had received the money for
a commercial transaction. Hence the Court rate of
6% was not appropriate and I agree with them. The
rate of interest of 20% awarded by the Court of
Appeal was more appropriate.”43

IV. RESTITUTIO IN INTEGRUM

 1. Restitutio in integrum, or rather restitution, is a general rule
applicable to assessment of damages arising out of all wrongful
acts. This rule is, perhaps, the most important principle guiding
the award of damages in civil cases. It refers to the principle or
rule that the court must in all cases award damages with the
object of compensating the plaintiff for his or her loss. In other
words, as a general rule, damages should not be used to serve
any other function; neither should the plaintiff be unjustly
enriched under the guise of an award of damages nor should the
defendant be unjustly punished under the same guise. See
Obongo & Another v. Municipal Council of Kisumu [1971]
EA 91; Ongom & Another v. Attorney-General [1979] HCB
267; Kyambadde v. Mpigi District Administration [1983]
HCB 44; Nsaba Buturo v. Munansi Newspaper [1982] HCB
134; Ntabgoba v. Editor-in-chief of the New Vision &
Another [2004] 2 EA 234

2. Bowen LJ in The Argentino appreciated the rule thus:

“The court has no power to give more; it ought

not to award less.”44

3. It follows therefore that to make an appropriate assessment of

damages, the first and paramount consideration should be

43
See also the passage of Tsekooko, JSC in Ahmed v. Car & General Ltd., Supreme Court Civil Appeal
No. 12 of 2002: “There was no complaint about interest awarded at 45% p.a. Counsel for the appellant did
not given reasons for claiming such high rate of interest. No explanation was given by the trial judge for
such a high rate of interest. However under s.26 (2) Civil Procedure Act, the rate of interest is awarded on a
discretionary, basis unless it is agreed to by the parties.

I think that in these proceedings the award of interest on the decretal amount at the rate of 45% was
uncalled for and is too high. On the facts, it is patently unjust. I would award interest at 10% p.a. on $
18700 (special damages) from 17/3/1999 till payment in full. I would award interest of 8% on Shs. 5m/=
(general damages) from the date of judgment till payment in full.”
44
Per Bowen LJ in the Argentino (1889) 14 App Cas 519, HL.
 restitution. In practice, whether tort or contract, the court should
pause the follow the question: “how much would restore the
plaintiff to its situation just before the wrongful act?” Technically
speaking, other questions or considerations would be irrelevant
and it would be a misdirection to follow them.

Application in contract
4. Thus, it has been held that the general intention of the law in
giving damages for breach of contract is that the plaintiff should
be placed in the position as he would have been in the contract
had been performed.45 No more, no less. Gullabhai Ushillingi v.
Kampala Pharmaceuticals Ltd46 Supreme Court Civil
Appeal 6 of 1999; Kengrow Industries Ltd. v. C.C.
Chandran Supreme Court Civil Appeal No. 7 of 2001;
Ahmed Ibrahim Bholm v. Car & General Ltd. Supreme
Court Civil Appeal No. 12 of 2003; Bank of Uganda v.
Masaba & Others [1999] I EA 2; Uganda Telecom v.
Tanzanite Corporation [2005] EA 351

Application in tort
5. Where any injury is to be compensated by damages, in settling
the sum of money to be given for reparation the court should as
nearly as possible get at the sum of money which will put the
party who has been injured or who has suffered in the same
position as he would have been in if he had not sustained the
45
Per Wertheim V. Chicoutimi Pulp Co [1911] AC 301; See also Robinson V. Harman [1843-60] All ER
Rep 383.
46
Per Mulenga JSC in Gullabhai Ushillingi Vs Kampala Pharmaceuticals Ltd Supreme Court Civil Appeal
No. 6 of 1999: “I respectfully agree that this is the correct statement of the law. I would add that it is
premised on the principle of restitutio in integrum. Damages are intended to restore the wronged party into
the position he would have been in if there had been no breach of contract. Thus, in the case of employment
for a fixed period which is not terminable, if there is no wrongful termination, the employee would serve
the full period and receive the full remuneration for it. And in the case of the contract terminable on notice,
if the termination provision is complied with, the employee would serve the stipulated notice period and
receive remuneration for that period, or would be paid in lieu of the notice"
 wrong for which he is now getting his compensation or
reparation.47 No more, no less. See Interfreight Forwarders
(U) Ltd. v. EADB Supreme Court Civil Appeal No. 33 of
1992; Musoke v. Departed Asians Custodian Board [1990-
1994] EA 219; Mutekanga v. Equator Growers (U) Ltd
[1995-1998] 2 EA 219; Uganda Breweries Ltd. v. Uganda
Railways Corporation Supreme Court Civil Appeal No. 6 of
2001 (unreported); Karim Hirji v. Kakira Sugar Works Ltd.
[2005] 2 ULSR 60

6. In deed, in practice, owing to the principle of restitution, liability

for income tax must be considered by the court in determining
quantum of damages to prevent double recovery (where the
damages themselves are not taxable in the hands of the
recipient) or unfair diminution of judicial compensation (where
the damages themselves are taxable in the hands of the
recipient).

V. REMOTENESS
Damages must be proximate
1. It is trite law that damages should not be recovered where they
are too remote with regard to the wrongful act. In other words,
the rule is that the damage (material loss alleged) must be
proximate, and fairly and reasonably connected with the breach
of the contract or wrong 48 One who commits a wrongful act is not
liable for damage which is not the natural or ordinarily
consequence of such an act, unless it is shown that the
defendant has notice of special circumstances as to render him
so liable.49 See Bank of Uganda v. Masaba & Others [1999]

47
per Lord Blackburn in Livingstone V. Rawyards Coal Co (1880) 5 App Cas 25, HL.
 I EA 2; Uganda Telecom v. Tanzanite Corporation [2005]
EA 351;

2. Thus, in my view, the rule of remoteness practically requires that

a proper assessment of damages in any particular case before a
trial court should indicate exactly where, in the opinion of the
court, the law draws the line on the extent of damages that can
be recovered. See Sendi Edward v. Crown Beverages Ltd
[2005] 2 ULSR 7, where the appellant was precluded from
claiming damages for alleged impotence arising out of drinking a
defective soda product manufactured by the appellant.

Damages assessed once and for all

3. It is an ancient rule of the common law that damages must be
assessed once and for all; for all injuries past, present, and
future. This principle is frequently stated in the form of a legal
proverb, “Nemo debet bis vexari pro eâdem causâ. Thus a
plaintiff who recovers damages in one suit would barred from
bringing a second action under the same cause of action for
consequential damage he sustains even though he were put to
great expense, in consequence of the injury he has received; for
it shall be intended that the jury (or court) considered all possible
consequences on the trial of the first action. 50

4. However, the rule is not as strict as it may sound. In certain

cases, a plaintiff may be entitled to bring a further action. The

48
Hadley V. Baxendale (1843- 60) All ER Rep 461; See also the dicta of Martin B in Wilson V. Newport
Dock Co (1866) LR I Exch 177 for a restatement of the principle.
49
Per Borill CJ in Sharp V. Powell (1872) LR7 CP 253
50
Fetter V. Beale Holt (1701) KB 12.
 test was appropriately stated by Borill CJ in Gibbs V.
Cruickshank51 thus:

“The test whether a previous action is a bar is

not whether the damages sought to be
recovered are different but whether the cause of
action is the same.”

5. In my view, the foregoing legal position enunciated at common

law does not differ from what our Civil Procedure Act, Cap 71
prescribes in section 7 on the doctrine of res judicata:

“S.7 Res judicata.

No court shall try any suit or issue in which the
matter directly and substantially in issue has
been directly and substantially in issue in a
former suit between the same parties, or
between parties under whom they or any of
them claim, litigating under the same title, in a
court competent to try the subsequent suit or
the suit in which the issue has been
subsequently raised, and has been heard and
finally decided by that court.”

Remoteness and intervening cause

6. It is a well established rule of law that if a defendant’s breach of
contract or duty is the primary and substantial cause of the
damage sustained by plaintiff, the defendant will be responsible
for the whole loss, though it may have been contributed to or
amplified by the wrongful conduct of a third person. 52 In other
51
Gibbs V. Cruickshank as reported in LR 8 CP.
 words, a defendant who acts negligently towards a plaintiff is at
law responsible for the resulting injury to the plaintiff, even
though but for the intervening act of a third person or of the
plaintiff himself, the injury suffered by the plaintiff would not
have occurred. See, Overseas Touring Co. (Road Services)
Ltd. v. African Produce Agency (1949) Ltd. [1962] EA 190,
where a transport company was held liable to pay the cost of a
customer’s oil tins even if the majority of these items were stolen
by a crowd that gathered after the transport company’s lorry was
involved in a collision with another vehicle.

7. However, this rule should not interpreted as creating a carte

blanche enabling plaintiffs to present whimsical claims for
damages. The parent rule, that of remoteness, can always be
called in aid to help indicate exactly where the law should draw
the line between recoverable and unrecoverable damages with
regard to cases involving intervening circumstances.

8. For instance; in one case, through the negligence of a railway

company’s servant, a railway engine fell over from the defendant
company’s railway line into the garden of the plaintiff. Damage
was done to the flowers in the garden of the plaintiff by a crowd
that assembled there. It was held that the damage done by the
crowd (undoubtedly an intervening cause) was too remote in the
circumstances of this case. 53 This judicial approach to a complex
question demonstrates the harmonization of conflicting rules of
the common law that I referred to earlier on.

Application in tort
52
Per Lord Alverstone CJ in the oft-cited case of De La Bere V. Pearson Ltd [1907] I KB 483. See also the
dicta of Hamilton LJ in Lathan V. R Johnson (1913) KB 398
53
Scholes v. Northern London Railway Co. (1893) (1870) 21 LT 835
 9. In keeping with the rule of remoteness, it is generally accepted
that tortious liability of a defendant must be limited to injury that
was reasonably foreseeable as a direct consequence of his
wrongful act in those circumstances. Thus, a court of law
confronted with the problem of assessing damages arising out of
a defendant’s negligence would do well to adopt an objective
test of ‘reasonable foreseeability’, qualified in certain
circumstances by public policy considerations. There are a
number of reported cases that demonstrate the continuing
relevancy of this time-honoured principle. The leading case in
this area is, as you may recall, Re Polemis.54
Application in contract
10. In keeping with the rule of remoteness, it is generally
accepted that the liability of a defendant for breach of contract
must be limited to losses that are the proximate, probable and
likely consequences of the breach, or such as may be taken to
have been fairly in the contemplation of the parties when the
contract was entered into. This principle is explained at great
length in the oft-cited case of Hadley V. Baxendale55

11. There is great doubt among many legal minds as to

whether or not the rule of remoteness is the same for damages
claimed in tort and contract. My view is that the, rule of
remoteness is the same in actions on contract as in tort: that
damages which the plaintiff is entitled to must result directly
from the wrongful act of the defendant and that no claim can be
made to damages which are too remotely connected with it. The
essence of this rule is to preclude entitlement to damages which
are either too speculative or uncertain.

54
[1921] 3 KB 560.
55
[1843-60] All ER Rep. 461
 12. In deed, there may be differences in the application of this
rule to the various actions and one should approach judicial
precedents on this point with the necessary circumspection. As a
matter of practical guidance, the trial court must have greater
regard for the circumstances of the particular case at bar than
for judicial evaluation of an earlier case, notwithstanding the
range of benefits such comparison may bring forth.

VI. AGGRAVATION AND MITIGATION OF DAMAGES

1. In addition to the rules discussed above, I would like to briefly

talk about the twin principles of aggravation and mitigation of
damages. Incidentally, our discussion of aggravated damages
touched on aggravation.

Aggravation in contract
2. Damages in an action for breach of contract are ordinarily
confined to losses which are capable of being appreciated in
money. However in certain exceptional circumstances, the court
would be justified in looking at all what happened or was likely to
happen down to the day of trial to increase the plaintiff’s
pecuniary and non-pecuniary loss. These circumstances are
called aggravating factors and they have the effect of increasing
the quantum of damages. See Ahmed Ibrahim Bholm v. Car
& General Ltd. Supreme Court Civil Appeal No. 12 of 2003,
where court awarded 5m/= in addition to other damages to the
appellant because it found that appellant had been humiliated,
harassed and embarrassed by this employers with the object of
bringing an end to the employment relationship.
3. For instance, the conduct of a defendant may be a relevant
factor in the assessment of damages if it accounts for more than
the ordinary losses that a plaintiff would be put by reason of a
breach of a particular contract. I such cases. It is not unusual for
a plaintiff to aver aggravation in the following terms: “that
defendant’s conduct occasioned injury to feelings and dignity of
the plaintiff.” Lets take the following examples:

4. A forty-year old putative father breaches a promise to marry his

36 year old girlfriend of ten years’ standing while she is
pregnant. To commit this breach, he uses the opportunity of a
family re-union to accuse her of infidelity.

5. An institutional employer summarily dismisses a soon-to-retire

employee two days before the latter was to become eligible for
pension benefits under an institutional employee pension
scheme. To commit this breach, the agents of the employer post
a notice on the company notice board that the old man has been
terminated because it is suspected he is a thief. No fair hearing
for the old man.

6. In both cases, the plaintiff may recover substantial damages

without proof of actual damage. This is because the facts cases
disclose an aggravating factor. The breach of contract in both
cases is underscored by aggravation.
Aggravation in tort
7. Similarly, in tort, the existence of aggravating factors will have
the effect of increasing the plaintiff’s damages. Some of the
circumstances of aggravation that arise in the reported cases
include; the exercise of illegal powers by the state or agents of
the state, insult, levity, arrogance, insolence, and the
 defendant’s insistence in a wrongful for instance where a
publisher pleads and attempts rather unsuccessfully to prove the
defense of justification in answer to an action for libel without
exploring out-of-court remedies. See Obongo & Another v.
Municipal Council of Kisumu [1971] EA 91; Ongom &
Another v. Attorney-General [1979] HCB 267; Kyambadde
v. Mpigi District Administration [1983] HCB 44; Nsaba
Buturo v. Munansi Newspaper [1982] HCB 134; Ntabgoba
v. Editor-in-chief of the New Vision & Another [2004] 2 EA
234; Machira v. Mwangi [2001] I EA 110.

8. Where the court forms the opinion that the defendant’s conduct
is in the nature of aggravation, it may award additional damages
to compensate the injury to the plaintiff’s feelings, pain and
suffering that is presumed to have been occasioned.

Some remarks on pleading and practice

9. Generally speaking aggravating factors need not be stated in the
plaintiff. These matters are admissible in evidence at the trial
even though not specifically pleaded. However, if is desirable
that pleadings should indicate circumstances of aggravation to
avoid surprise at trial. See Ongom & Another v. Attorney-
General [1979] HCB 267.

Mitigation in contract: Duty of plaintiff to mitigate damages

10. It is a well established rule of common law that the plaintiff
has a duty to mitigate damages. This rule was ably articulated by
Cockburn CJ in the landmark case of Frost v. Knight56 thus:

56
[1861-73] All ER Rep 221
 “In assessing damages for breach of
performance, a court will of course take into
account whatever the plaintiff has done, or has
had the means of doing, and as a prudent man,
ought in reason to have done, whereby his loss
has been, or would have been, diminished.”

11. Thus, the plaintiff can not claim any part of the damage
which is due to his neglect to take such steps that would have
the effect of reducing his loss. If the action he has taken has
actually diminished his loss, such diminution may be taken into
account.57

12. The plaintiff carries the ultimate burden to prove, on a

balance of probabilities, that he discharged this duty. However, if
the defendant contends that the loss proved by the plaintiff
could have been minimized or avoided altogether by the taking
of some step which the plaintiff could reasonably have taken but
did not take, the onus is on the defendant to make out that
contention on the evidence.58

13. But in all breach of contract claims, the court must inquire
into the availability of circumstances of mitigation that the
plaintiff could have called in his aid. However, it has been held
that a sum of money paid to the plaintiff by insurers in respect of
loss suffered by him is not to be taken as a mitigating factor. 59

Mitigation in Tort

57
British Westinghouse Electric Manufacturing Co. Ltd V. Underground Electric [1912] AC 673.
58
Goldberg V Shell Oil Co. of Australia Ltd. [1990] 95 ALR 711.
59
Lates V. Whyte (1834) 4 Bing NC 272. These are collateral matters, as opposed to incidental matters, and
they should not be considered in an inquiry of mitigation.
14. Generally speaking, a plaintiff is not bound to spend money
to minimize his damages in tort. However, where the damage
that arises out of a tort committed by the defendant is akin to a
damage that would arise out of a breach of contract, the law
imposes a duty on the plaintiff to mitigate his losses. For
instance, a cab driver whose motor vehicle is unlawfully detained
cannot maintain a claim for ‘loss of earnings’ without taking
reasonable steps to mitigate his loss. See UCB v. Deo Kigozi
[2002] I EA 293

15. Furthermore, in tort, a plaintiff carries a duty to act

reasonably after a tort has been committed against them. Thus,
a plaintiff who, in remedying injury occasioned him by the
defendant, flies to London for a medical operation that could
have been procured in Kampala cannot be rewarded in damages
for his unreasonable behaviour. Similarly, a plaintiff who, refuses
treatment for the effects of an assault or battery and thereby
allows himself or herself to suffer greater injury than originally
done him, attracts only scorn from the court, but not damages,
for his unreasonable behaviour. See for instance, African
Highland Produce Ltd. v. Kisorio [2001] I EA 1, where a
plaintiff, of relatively considerable means could have retrieved
his damaged motor vehicle from the garage in 21 days following
the traffic accident but rather chose to hire a luxurious land
cruiser motor vehicle at an unreasonably high rate and for an
unnecessarily long period, was precluded from recovering the
damages he claimed because he did not act prudently.

16. Lastly, mitigation in tort denotes all the circumstances

which a defendant may adduce in evidence with a view to
securing a reduction of damages that will be awarded to the
 plaintiff in the suit. In this regard, the following circumstances of
mitigation have been judicially considered: (a) Provocation by
the plaintiff as to occasion the assault; (b) Poverty of the
defendant (c) Offer of an apology and an out-of-court settlement
by a publisher of a libelous article (d) reasonable and probable
cause in answer to a claim of damages for false imprisonment,
etc.

VII. CONTRIBUTION AND APPORTIONMENT

1. Where the trial court makes a finding on the evidence that two or
more parties are to blame for the injury arising out of, say, a
road collision, it should proceed to apportion or distribute the
blame between the parties depending on their level of
contribution (or causation) in the circumstances. Assessment of
damages in this way presents considerable difficulties for judges
and it is advisable that court should invite technical expertise, at
the cost of the parties, to help determine these matters.

2. It is not possible to lay down a single principle guiding

contribution and apportionment of damages but neither should it
be left to realm of mystery. In all cases where apportionment is
possible, the court’s inquiry must proceed along this line: How
far was the eventual damage/loss caused by the actions of the
each of the parties involved? Liability is broadly apportioned in
percentages and the appellate court will not lightly interfere with
apportionment of blame made by the trial court. See Overseas
Touring Co. (Road Services) Ltd. v. African Produce
Agency (1949) Ltd. [1962] EA 190; Uganda Breweries Ltd.
v. Uganda Railways Corporation Supreme Court Civil
Appeal No. 6 of 2001 (unreported).
 3. In practice, matters touching contribution and apportionment
should be specifically pleaded and proved because these are the
kind of circumstances (i.e. usually negligence) for which
particulars are needed. See 0rder 6 rule 3 Civil Procedure
Rules SI 71-1 (particulars to be given where necessary).

VIII. DISTINCT RULES FOR MEASURE OF DAMAGES IN

CONTRACT & TORT

1. The breadth of the common law represents what is both good

and bad about such a system of judge-made rules and principles.
Therefore, I expect to be understood when I say here that,
because the common law has developed a myriad rules and
principles relating distinctively to the measure of damages in
both tort and contract respectively, it is bad. The breadth or
diversity of the common law is bad in the sense that it renders it
difficult for us to discuss these distinct rules at great length in
today’s forum. I am consoled by the fact in over 30 years of my
devotion to the legal profession, I am yet to hear of a single
meeting of legal minds anywhere in the Commonwealth where
the entire body of the common law was discussed exhaustively.

2. Thus, whereas I have endeavoured to discuss the basic rules and

principles that are common to measure of damages in both tort
and contract, it is not proposed to discuss the distinct rules as
well in this paper. But I am sure that your Lordships will ably
appreciate them in the course of your vocation.

E. APPEALS
 1. Assessment of damages is principally the duty of the trial court.
In deed, although appellate courts within the Commonwealth,
including ours, are by statute enabled to invoke any of the
powers of a trial court, in practice, they will not engage in the
activity of assessment of damages except in the most
exceptional circumstances. See Fredrick J. K. Zaabwe v.
Orient Bank & Others Supreme Court Civil Appeal No. 4 of
2006 (unreported).

2. The role of the appellate court in the province of damages as

articulated by Greer LJ in Flint v. Lovell60 is the correct
statement of the legal principle applicable in the appellate courts
of Ugandan with regard to damages in civil suits:

“An appellate court will be disinclined to reverse

the finding of a trial judge as to the amount of
damages merely because it thinks that had it
tried the case in the first instance it would have
given a greater or lesser sum. In order to justify
reversing the trial judge on the question of
amount of damages, it will generally be
necessary that the appellate court should be
convinced either
(a) that the trial judge acted upon some wrong
principle of law, or
(b) that the amount awarded was so extremely high
or very small as to make it, in the judgment of the
appellate court, an entirely erroneous estimate of
the damage to which the plaintiff is entitled.”

60
[1935] 1 KB 354.
3. The above principle has been applied by the Supreme Court of
Uganda in a number of cases. See Impressa Federici v. Irene
Nabwire Supreme Court Civil Appeal No. 3 of 2000;
Uganda Breweries Ltd. v. Uganda Railways Corporation
Supreme Court Civil Appeal No. 6 of 2001 (unreported);
Kengrow Industries Ltd. v. C.C. Chandran Supreme Court
Civil Appeal No. 7 of 2001; Premchandra Shenoi & Anor v.
Maximov Oleg Petrovich Supreme Court Civil Appeal No. 9
of 2003; Ahmed Ibrahim Bholm v. Car & General Ltd.
Supreme Court Civil Appeal No. 12 of 2003; and
Administrator General v. Bwanika James & Others
Supreme Court Civil Appeal No. 7 of 2003; Bank of
Uganda v. Masaba & Others [1999] I EA 2; inter alia.

Wrong principle61
4. Per Oder, JSC in Uganda Breweries Ltd. v. Uganda Railways
Corporation Supreme Court Civil Appeal No. 6 of 2001
(unreported):

“In my view, the award of Shs. 280 million or

DM400, OOO cannot be left to stand. On the
authority of Bank of Uganda -vs- F. W. Masaba,
supra, this court can interfere with the award,
because it was not properly assessed and was
made on wrong principles. ... In the
circumstances, I would award DM 213, 116. 36
as special damages to the respondent.”

Entirely erroneous estimate

 5. Per Oder, JSC in Administrator General v. Bwanika James &
Others Supreme Court Civil Appeal No. 7 of 2003:

“The Court of Appeal held the view that the

provisions of the Currency Reform Statute
(Repealed) did not apply to the instant case. I
agree with that view.

It is trite law that an appellate court should not

interfere with an award of damages by a trial

61
See also the judgment speech of Tsekooko, JSC in Ahmed Ibrahim Bholm v. Car & General Ltd.
Supreme Court Civil Appeal No. 12 of 2002:
“The trial judge found that the appellant “was harassed, embarrassed and humiliated by the General
Manager.” Because of that holding, the learned judge awarded the appellant Shs 30m/=. My
understanding of the findings of the judge is that although he described the damages as general damages
(which must be due to the way the 5th issue was framed), on the evidence and the pleadings, these are
punitive or exemplary damages which the appellant had claimed in the plaint and he adduced evidence to
prove such damages.
….
On damages it is now established that an appellate court will not reverse a judgment, or part of judgment,
of a court below on a question of damages unless the appellate court is satisfied that the judge acted on a
wrong principle or that the amount awarded was so extremely large or so very small as to make it an
entirely erroneous estimate of the damage: See Singh v. Kumbhal (1948) 15 EACA 21; Henry. H. Ilanga Vs
M. Manyoka (1961) EA 705 and Obongo's case (supra) at page 96.

I have held that the trial judge erred by including an element of [punitive] damages for wrongful dismissal
in the award of 30m/=. He acted on a wrong principle. I have pointed out that the trial judge was not guided
by any authorities in that award. In my opinion since the appellant had been awarded US$ 18700 as salary
for the residue of the contract which was terminated, punitive damages of Shs. 30m/= would be
inappropriate and too high. Considering that the appellant was subjected to high handed mistreatment, and
bearing in mind the award of US$18700, I think that Shs. 5m/= would be adequate.

There was no complaint about interest awarded at 45% p.a. Counsel for the appellant did not given reasons
for claiming such high rate of interest. No explanation was given by the trial judge for such a high rate of
interest. However under s.26 (2) Civil Procedure Act, Cap 71, the rate of interest is awarded on
discretionary basis unless it is agreed to by the parties. I think that in these proceedings the award of
interest on the decretal amount at the rate of 45% was uncalled for and is too high. On the facts, it is
patently unjust. I would award interest at 10% p.a. on $ 18700 from 17/3/1999 till payment in full. I would
award interest of 8% on Shs 5m/= from the date of judgment till payment in full.

In conclusion, I would allow the appeal with costs here and in the two courts below. I would set aside the
judgment and orders of the Court of Appeal. I would restore the award by the trial judge of $ 18700
representing salary for the residue of the contract. I would award interest thereon at the rate of 10% p.a.
from date of judgment of High Court till payment in full. Instead of Sh. 30m/= awarded as damages by the
trial judge, I would award the appellant Shs 5m/= as punitive damages with interest thereon at the rate of
8% p.a. from date of judgment of the High Court till payment in full.” See also Kengrow case for
illustration of wrong principle.”
court unless the award is based on an incorrect
principle or is manifestly too low or too high. In
the instant case, the learned Justices of Appeal
interfered with the award of damages by the
trial Court and awarded a lower figure. Be that
as it may, my opinion is that the sum of Shs.
424,891,540/=, representing the purchase price
of Shs. 93,995,560/= of the commercial building,
which the appellant should have paid to the
respondents is still too excessive. This state of
affairs arose because the Hon. Justices of Appeal
used the Future Value Interest Factor (FVIF)
formula in assessing what should be awarded to
the respondents. In my view, the respondents
would be fairly compensated if the award to
them was assessed by subjecting the sum of
Shs. 93,995,560/= to a factor of 10% per annum
at simple interest for the period of 17 years.
This is the period from 1986, when the suit
cheque was paid to the appellant's account to
May 2003, when the Court of Appeal varied the
trial Court's award of damages to the
respondents. This plus the principal would yield
the amount payable under this item to Shs.
226.788,012/= (of which Shs. 142,792,452/= is
accrued interest) .

The award of general damages of Shs.

10.000,000/= to each of the respondents,
making a total of Shs. 100.000,000/= awarded
by the Court of Appeal to all the respondents
 was, in my opinion fair in the circumstances of
the case. It is not excessive. I would not
interfere with that item of the award.

In the result, I would make a total award of Shs.

326,788,012/=, payable to the respondents. This
sum should carry interest at 6% (the Court rate)
from 7/7/2003, the date of the Court Appeal
judgment till payment in full.”

6. This general rule should also guide a High court judge in

determining appeals from the magistrate courts. Once a trial
court has determined the measure of damages, this principle
presents the appellant with insurmountable difficulties, and
rightly so in my view. Litigation on a very imprecise point like
assessment of damages should not be unnecessarily
encouraged.

F. SOME RECOMMENDATIONS ON PRACTICE & PROCEDURE

I wish to make some practical recommendations relating to

assessment of damages.

Proof of damages
1. In all civil cases, the burden of proving claims in a suit rests on
the plaintiff and the standard of proof is on the balance of
probabilities. Although the law presumes general damages to
flow from the wrong complained of, it is trite law that the plaintiff
must plead and prove claims of special damages, if any. This rule
applies where the suit proceeds inter parte or ex parte. Thus,
even where the defendant neither files a defence nor enters
 appearance, the plaintiff bears the burden to prove his claim to
the required standard. The burden and standard of proof do not
become any less: Mutekanga v. Equator Growers (U) Ltd.
[1995-1998] II EA 219. See also Kyambadde v. Mpigi
District Administration [1983] HCB 44 for the proposition
that although special damages must be strictly proved, they
need not be supported by documentary evidence in all cases.

2. In deed, even where a party admits liability, the suit must be set
down for a proper inquiry into the issue of damages: Impressa
Federici v. Irene Nabwire Supreme Court Civil Appeal No.
3 of 2000 (unreported). This is why it is fondly said within the
common law jurisdictions that damages are always in issue.

3. However, what is less trite is that prudence, if not the law,

requires the parties or their lawyers to provide the court with
proper guidance relating to the inquiry of damages generally.
They seem to be content with proving a cause of action and
inviting the court to do what is proper when it comes to the
various reliefs prayed for. Consider the typical dilemma of a trial
judge as presented here by Ogoola J. (as then was) in Bhadelia
Habib Ltd. v. Commissioner General, URA [1997-2001]
UCL 202:

“On the plaintiff’s claims for damages, I am

therefore left only with the issue of general
damages. On this one, both counsel for the
plaintiff and the defendant were
uncharacteristically unhelpful. The plaintiff’s
counsel merely alleged a claim of sh.20 million,
not a word on why that figure, or how it is
 arrived at. The latter counsel did not challenge
the substantive claim, or the figure. In these
circumstances, I am left with nothing at all but
my own discretion to fall back on. Considering
the plaintiff’s propensity for a little
exaggeration of his claims in this case, I am
prepared to award him general damages in the
amount of Shs. 5 million.”

4. My recommendation is that the parties, their lawyers as well as

the trial court must give ample resources to the inquiry of
damages during litigation. The impression, among some quarters
of the bar and bench (especially the lower bench) that general
damages are “damages at large” and any figure picked “from
the blue” would suffice, is at best, disturbing and, at worst,
entirely erroneous in my view.

5. The parties, their lawyers, and the court must at all times
suggest a reasonable hypothesis for their inquiry of damages.
Witnesses must be called for the purpose of making out a party’s
claim for damages. The courts should encourage the parties’ use
of the rules of discovery, inspection and production with a view
to collecting evidence relevant to the measure of damages in a
given case. This judicial approach will undoubtedly promote the
common law tradition of respect for an assessment of damages
made by a trial court as prescribed by the rule in Flint v. Lowell
[1935] I KB 354, above.

G. CONCLUSION
By way of conclusion, allow me to quote from a Commonwealth
precedent known as Grey V. Alanco62 from the Canadian jurisdiction.
It is fondly said that such precedents carry a persuasive value in a
jurisdiction like ours. Well then, I intend to persuade your Lordships to
enjoy the task of assessing damages with the following passage:

“There are two concurrent principles in assessing

damages; one, that the injured party must be made
whole so far as money can do so, and the other, that
compensation cannot be perfect. The latter is a
judicial warning against excess, and hence in
assessing damages, once and for all, and thus
including prospective losses, the court will discount
them heavily because of the contingencies of life.
Judges, indicating an amount as damages, indicated
what would be socially acceptable in the community,
and, having some idea of the awards made by other
judges, their opinion reflects the discipline of
previous and current awards.”

Thank you very much for your time.

REFERENCES
1. Halsbury’s Laws of England, Fourth Edition, Vol.12,
Butterworth; London, 1975, P411-501.

62
[1965] 2 OR 144; 50 DLR (2d) 17 (Canada)
 2. The Digest of Annotated British, Commonwealth and
European cases, 2nd Re-issue, Vol.17 (2) Butterworth;
London, 1994.
3. Black’s Law Dictionary.
4. Worlds And Phases Legally Defined.
5. The Uganda Commercial Law Reports 1997-2001. [UCL]
6. Uganda Law Society Reports [ULSR]
7. The High Court Bulletin [HCB]
8. East African Law Reports [EA]
9. All England Reports [All ER]
10. Supreme Court Digest

ENDNOTES