Arrow Link (u) Limited v Hon. Ikojo and another (Civil Suit 16 of 2018) [2023] UGHCCD 203 (29 June 2023)

The Republic of Uganda

In the High Court of Uganda Holden at Soroti

Civil Suit No.0016 of 2018

Arrow Link (U) Ltd ===================================

$\overline{5}$

Versus

1. Hon. Ikojo John Bosco

2. Rosco (U) Ltd

$\equiv$ Defendants

# Before: Hon. Justice Dr Henry Peter Adonyo

### Judgement

## 1. This suit:

- The plaintiff filed this suit against the defendants jointly and severally for trespass into its quarry, unlawfully and forcefully converting it to their own use and selling their stones crushed there worth Ugx. 66,845,000/= (Sixty-six million eight hundred and forty-five shillings) for their own gain, a declaration that the quarry belongs to the plaintiff, special and general damages, interest and costs of the suit. - The plaintiff's claim is that it is the lawful and or an equitable owner of lands 25 comprised in the quarry site at Ongeseba/Asinge villages, Awoja parish, Gweri

DEPUTY REGISTRAR.

**SORO**

sub-county which it had acquired from the community of the areas for purposes $\mathsf{S}$ of carrying on the business of stone quarrying and crushing.

That in January 2018 it they dully entered into agreement with the local community aforementioned and set up a stone quarry and started blasting the rock therein for sale until the beginning of May 2018 when the $1^{\ensuremath{\text{st}}}$ defendant without any colour of right forcefully entered the said quarry site and claimed an illegal interest in the business of the plaintiff.

That the forceful entry of the $1^{\ensuremath{\text{st}}}$ defendant onto the plaintiff's quarry and stone crushing sites was illegally done with the help of rogue police officers from Awoja Police post and especially with the help of a police officer No. 30192 Kesang, who was posted onto the site daily after the driving off of the plaintiff's supervisor

from the quarry.

That the $1^{\ensuremath{\text{st}}}$ defendant then brought into the plaintiff's business his company which is the $2^{\rm nd}$ defendant which commenced operations of crushing and selling stones from within the quarry and the space of the plaintiff while being guarded by police and upon completely crushing and selling all the raw materials of the

plaintiff, the defendants unlawfully subsequently dismantled the quarrying 20 machines, the stone crusher and other equipment belonging to or used by the plaintiff and carried and or shifted them away to an unknown destination.

That the acts of the forceful entry by the defendants and the utilisation of the plaintiff's materials and the shifting away of the plaintiff's equipment's were unlawful and as such the defendants should be held accountable for their 25 unlawful acts.

The defendants in their joint written statement of defence denied the plaintiff's case and contended that the plaintiff was not the owner of land in Asinge village

but were quarrying stones in land out of forged land sales agreements from those $\mathsf{S}$ who purported to be owners of the rock on the stated lands.

That the land in question was theirs for which they had purchased for quarrying at the site surrounding Olilinga rock in Asinge village for which they had paid to the affected community members and that they went to quarry the rock with all legal mandate of the people of that area and after obtaining the appropriate permission from the community of Asinge and the Itekok Omorit clan whom they had compensated to quarry stones from their rock and even hired and paid for all the equipment used at their sites from Katende Stone Quarry Company and denied ever taking over any machinery and or equipment of the plaintiff.

The defendants also raised a counterclaim against the plaintiff and one Odongo 15 James, for breach of contract arising out of misrepresentation and fraud, the recovery of money had and received amounting to Ugx. 115,325,000/=, general damages, interest and costs of the suit.

The defendants' counter claim was that they had entered into a partnership with the plaintiff to carry on the business of stone quarrying and that they had agreed 20 that they contribute capital for the needed operations while the plaintiff was to contribute granite rock, land and licences for quarrying.

That that the plaintiff made representations that it had acquired the rock to quarry, had leased land to do the operations and had obtained the necessary clearances and licences to the defendants which as a result made the defendants to expend an amount of Ugx. 115,325,000/= to facilitate the quarrying process.

That after the plaintiff started quarrying and selling crushed stones they refused to give the defendants any dividends and denied them all or any involvement in

$25$

the quarrying business which action occasioned the defendants great economic $5$

The plaintiff in their reply to the counterclaim denied every allegation made by the defendant in the counter claim and prayed that the same be dismissed for disclosing no cause of action at all.

2. Standard of Proof: 10

loss.

The dispute between the plaintiff and the defendants is anchored upon a civil disagreement between the two parties in regard to a stone quarrying site, a stone crushing machinery and stone sale business. It is thus a civil dispute.

For proving a civil dispute Section 101 (1) of the Evidence Act (Cap. 6) provides that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts, must prove that those facts exist.

Accordingly, it is the duty plaintiff to prove that it has a case against the defendants and likewise the defendants as against the plaintiff through their counter claim on a balance of probability as was pointed out in the case of

# Nsubuga vs. Kavuma [1978] HCB 307.

3. Representation:

The plaintiff was represented M/s Omara Atubo and Co Advocates of Kampala while the defendants were represented by M/s E. Wamimbi Advocates and Solicitors, also of Kampala.

### 4. Issues:

During the scheduling of this case where both sides participated, the following issues were framed for the determination of the dispute between the plaintiff and the defendants;

a. Whether the plaintiff has a cause of action against the defendants?

b. Whether the counterclaim discloses a cause of action against the plaintiff?

c. Whether the defendants trespassed on the plaintiff's quarry?

d. What are the remedies available, if any?

Upon thoughtful consideration, the issues are adopted after appropriate modifications by this court for resolving the dispute herein.

#### 5. Procedural: 15

The plaintiff presented in court five witnesses to prove its case and these are PW1 Barongo Gerald, PW2 Olupot Sam, PW3 Euju Julius, PW4 Elibu Moses and PW5 Orianga Sam. The plaintiff also adduced documentary evidence which are on record.

- The defendant intended to call also five witnesses including DW1 Hon. Ikojo Bosco, DW2 Charles Elasu, DW3 Bosco Ouka, DW4 Ariko Silver and DW5 Olaboro 20 Basilus. The defendants intended also to adduce documentary evidence but those remained at the stage of identification only due the non-subsequent appearance of the defendants after the hearing of the plaintiff's case had started. - The genesis of the nonappearance of the defendants was that while the hearing of this matter begun and PW1 to PW4 completed their testimonies, when it came 25 to PW5, he was partly cross examined by counsel and the matter was adjourned to 11<sup>th</sup> January, 2023 to enable the completion of the cross examination of PW5 by counsel E Wamimbi for the defendants.

$\overline{5}$

On 11<sup>th</sup> January, 2023, counsel for the defendant and the defendants were absent and no reason was given for the absence yet the adjournment to that date $\mathsf{S}$ was sought for by counsel for the defendants. The court was courteous enough to allow another adjournment to 2<sup>nd</sup> March, 2023 for the then pending further cross-examination of PW5 with counsel for the plaintiff directed to extract a hearing notice and serve the defendants and their counsel.

Yet here was an affidavit of service on record showing that the defendants and counsel were aware of that further hearing date.

On 2<sup>nd</sup> March, 2023 the defendants and counsel were still absent and still no reason was given. There was even an affidavit of service of the hearing date filed on court record sworn by one Ouni William and deposed on 24<sup>th</sup> January 2023 before M/s Ewatu Alfred, a Commissioner for Oaths, based in Soroti that service 15 was done with even counsel for the defendants acknowledging service by its stamp of 25<sup>th</sup>January, 2023.

Arising from the fact of proper service onto counsel for the defendants, counsel for the plaintiff moved court by virtue of Order 9 rule 20 (1)(a) Civil Procedure Rules, to proceed and have the plaintiff's case proceed ex parte and thereafter it 20 be closed.

The court, after satisfying itself that the defendants had absented themselves together with counsel from the hearing of the suit without any valid reason yet were aware of all the hearing date as established by service of the hearing notice, allowed the plaintiff's case to proceed ex parte by virtue of Order 9 rule 20 (1)(a) Civil Procedure Rules and closed the plaintiff's case

Counsel for the plaintiff was then directed to file final submissions. This judgment is a result of that direction.

6. Resolution:

$\mathsf{S}$

a. Issue 1: Whether the plaintiff has a cause of action against the defendants?

The 1<sup>st</sup> issue herein relates to whether the plaintiff have a cause of action against the defendants.

A cause of action or right of action, in law, is a set of facts sufficient to justify suing to obtain money or property, or to justify the enforcement of a legal right against 10 another party. The term also refers to the legal theory upon which a plaintiff brings suit (such as breach of contract, battery, or false imprisonment).

The legal document which carries a claim is often called a 'statement of claim' in English law. It can be any communication notifying the party to whom it is addressed of an alleged fault which resulted in damages, often expressed in amount of money the receiving party should pay/reimburse.

To pursue a cause of action, a plaintiff pleads or alleges facts in a complaint, the pleading that initiates a law suit. A cause of action generally encompasses both the legal theory (the legal wrong the plaintiff claims to have suffered) and the remedy (the relief a court is asked to grant).

Often the facts or circumstances that entitle a person to seek judicial relief may create multiple causes of action.

There are a number of specific causes of action, including: contract-based actions; statutory causes of action; torts such as assault, battery, invasion of privacy, fraud, slander, negligence, intentional infliction of emotional distress; and suits in equity such as unjust enrichment and quantum meruit.

The points a plaintiff must prove to win a given type of case are called the ingredients of that cause of action.

For example, for a claim of negligence, the ingredients are:

- a. The (existence of a) duty, - b. The breach (of that duty), - c. The proximate cause (by that breach), and - d. Damages.

$\mathsf{S}$

If a complaint does not allege facts sufficient to support every element of a claim, the court, upon motion by the opposing party, may dismiss the complaint for failure to state a claim for which relief can be granted.

A defence to a cause of action is filed by a reply to or an answer the complaint in which the claims can be admitted or denied (including denial on the basis of insufficient information in the complaint to form a response).

The reply / answer may also contain counterclaims in which the counterclaiming 15 plaintiff states its own causes of action.

Finally, the reply/answer may contain affirmative defences. Most defences must be raised at the first possible opportunity either in the answer or by motion or are deemed waived.

In the English cases of Cooke vs Gull LR 8 E. P. 116 and in Read vs Brown 22 QBD 20 P.31, a cause of action was defined as every fact which is material to be proved to enable the plaintiff succeed or every fact which if denied, the plaintiff must prove in order to obtain judgment.

In relations to the instant matter, Counsel for the plaintiff Ms. Nyakecho Racheal of c/o M/s Omara, Atubo & Co. Advocates submitted that the plaintiff's case 25 herein discloses a cause of action for it has the ingredients/ elements of a cause of action as was defined by the Supreme Court of Uganda in the case of Tororo Cement Ltd vs Frokina International Ltd CA No. 21 of 2001.

Counsel for the plaintiff submitted that by paragraph 5 of the plaintiff's plaint, it $\mathsf{S}$ is disclosed that the plaintiff by right owned a stone quarry at Ongeseba in Awoja Parish having acquired the same from the community of that area with a land sale agreement attached to the pleadings proving that fact. That the plaintiff subsequently, entered the suit land and set up its quarry to crush stone

aggregates for sale. $10$

Counsel further submitted that the plaint discloses under paragraph 5 that the right of the plaintiff was violated by the defendants when the defendants without any colour of right, forcefully entered into the quarry site and made unfounded claim of interests in the business of the plaintiff and even drove out the plaintiff's directors from its property with the $1^{\ensuremath{\text{st}}}$ defendant then taking charge of the plaintiff's property and even bringing along the 2<sup>nd</sup> defendant in which he is a director to commence operations for their gain, the plaintiff's quarry without the authority of the plaintiff.

Counsel further submitted that the plaint discloses the particulars of trespass by the defendants and that it shows that the defendants are liable to the plaintiff 20 for their acts of trespass and as such this court find that the plaintiff's plaint has a cause of action and should be accepted.

A cause of action or right of action, in law, is a set of facts sufficient to justify suing to obtain money or property, or to justify the enforcement of a legal right against another party. The term also refers to the legal theory upon which a plaintiff brings suit (such as breach of contract, battery, or false imprisonment).

To pursue a cause of action, a plaintiff must plead or allege the facts complained of in a complaint which then do initiate a suit. As rightly submitted by counsel for the plaintiff, the ingredients/ elements of a $\mathsf{S}$ cause of action have been determined by the courts of law and are that the plaintiff enjoyed a right, that the right has been violated and that the defendant is liable. (See: Tororo Cement Ltd vs Frokina International Ltd CA No. 21 of 2001)

Also counsel for the plaintiff rightly submitted, in the case of Kebirungi v Road Trainers Ltd and 2 Others [200] HCB 72, it was held that the question whether a plaint discloses a cause of action must be determined upon perusal of the plaint alone, and nothing else apart from anything attached which form part of it.

The perusal of the plaint in the instant matter show that under paragraph 5 the plaintiff lists out its cause of action that it acquired land in the quarry site at Ongeseba village and Asinge village for the purpose of quarrying and crushing 15 stones and that it duly entered the quarrying sites in January 2018 and started its operations but its operations were cut short when the defendants forcefully took over its site together with its equipment found therein and even started using the site and the equipment for their own benefit.

By paragraph 15 of the plaint, it is shown that the plaintiff enjoyed a right to the 20 quarry and crushing sites and that the said right was violated when the defendants forcefully took over the site and that the defendants were liable for the violation of the plaintiff's rights.

The facts as pleaded in paragraph 5 and paragraph 15 of the plaint satisfies the legal requirement that for a cause of action to exist then the plaint must show 25 that a plaintiff enjoyed a right, that the right was violated by a specific defendant who was liable for the violation of a plaintiff's right.

In Elly B Mugabi vs Nyanza Textile Industries Ltd [1992-93] HCB 227, court held $\mathsf{S}$ that a cause of action arises when a right of the plaintiff is affected by the defendant's act or omissions.

In the plaint herein, it is alleged by the plaintiff that the defendants by use of force appropriated the quarry business together with the raw materials, land and machinery of the plaintiff which actions adversely affected the plaintiff's interest in its business. The defendants deny this and so it is my finding that there are triable issues between the plaintiff and the defendants in respect of this plaintiff's claim.

Also in Kebirungi vs Road Trainers Ltd & 2 Others [2008] HCB 72, it was held that the question whether a plaint discloses a caution of action must be determined 15 upon perusal of the plaint alone together with anything attached so as to form part of it.

From the perusal of the plaint on record together with the annextures, it is clear to me that the plaint discloses a cause of action against the defendant and since the plaintiff has pleaded all relevant facts to show that he has a cause of action 20 against the defendants then it is my finding and conclusion that this suit discloses a cause of action as against the defendants jointly and severally.

- b. Issue 2: Whether the counterclaim discloses a cause of action against the plaintiff? - There are always two sides to every argument, the "claim," and the 25 "counterclaim." The first is a statement of a party's point, or argument for something. The second is a rebuttal, or argument opposing the claim. Once the parties have made their claims and counterclaims, they introduce the reasoning behind their arguments, and present evidence to support those claims. In very simple terms, a counterclaim is the opposite of a claim. 30

- In the legal system, once a plaintiff has filed a legal action, which makes certain $\mathsf{S}$ claims against a defendant, a defendant must then file an answer to the claims of the plaintiff with the court and once that has been done, the process of each party proving his own position begins. - A counterclaim is just one of the four elements of an argument, which include the claim which assert facts that give rise to a legally enforceable right or judicial 10 action, a counterclaim which is a relief sought in opposition to, or to offset another person's claim, the reasons and or the rationale behind a party's claim and the evidence which is something that proves the truth of a claim, or what leads to a conclusion. - Relating the above legal position to the instant matter, the defendants herein 15 raised a counterclaim which was answered by the plaintiffs. However, the rationale behind defendants' counterclaim and the evidence supporting the same have not been adduced following the defendants opting out of these proceedings through nonappearance. That being the case, the counterclaim would only suffer one fate since it has not been prosecuted and this is, it is 20 dismissed for non-prosecution with costs to the plaintiff. Issue is resolved by a dismissal of the counterclaim.

I will now turn to examine the evidence adduced by the plaintiff in proof of its case.

## c. Issue 3: Whether the defendants trespassed on the plaintiff's quarry? 25

As already stated early on the plaintiff adduced the evidence of five (5) witnesses in addition to documentary evidence, though PW5'scompletion of his evidence by additional cross examination was unceremoniously encumbered by failure of the defence counsel to conclude the same. Be that as it may, the evidence in

support of the plaintiff's case are on record and together with its pleadings, they $\mathsf{S}$ are examined and applied herein whenever necessary. I will thus not repeat them in this judgment verbatim.

The case of the plaintiff in relations to this is anchored on the issue of trespass which is the act of a person being somewhere where they legally should not be. Typically, trespass refers to one entering or venturing onto a private property without the owner's permission. The act of trespassing can be considered either as a crime or a civil wrongdoing (sometimes known as a 'tort'), depending on the circumstances of the act itself. Trespassing also can sometimes serve as a precursor to other even more serious crimes (e.g., theft or assault, murder)

though it is not this is not always the case. 15

In this suit, we are not going to belabour the criminal aspect of trespass the pleadings here are relating only to civil law.

Under the Ugandan law, the entering a property is legal if the owner of said property has extended an invitation to the visitor. However, if that invitation is rescinded (or is allowed to expire) by the owner (or a representative of the owner, such as a staff member or security operative, and the other person subsequently fails to leave, that act of remaining onto the property of another is considered as trespass.

For example, all land in the Uganda by the 1995 Uganda Constitution as Amended is said to belong to the people of Uganda with somebody somewhere in charge $-25$ of any such land and, unless public access is permitted by the owner, anybody who sets foot on that land without permission is, by definition, a trespasser with the owner of such property being able to pursue legal action and sue the trespasser for the suppositious value of whatever gains has been made by the


trespass which may also include the obtaining of a court injunction barring the $\mathsf{S}$ trespasser from returning to the property.

In general, there are three main types of civil trespass. These are trespassing to land, trespassing to a person and trespassing to chattels. In this instant matter, we are dealing with trespass to land wherein the plaintiff alleges that the defendants encroached upon its land without its authority in addition illegal conversion of its properties such as material, machinery and the sale of its

business properties

The law on trespass has since been settled in Uganda as it is stated that for trespass to be proved by a plaintiff then such a plaintiff must have been in possession of the property trespassed unto at the time of a defendant's entry, that there was an unlawful or unauthorised entry by a defendant onto the plaintiff's property and the entry occasioned damage to the plaintiff. This is the position in *Adrabo vs Madira [2017] UGHCLD 102* and many other similar cases.

In proof of its case in trespass, the plaintiff in its plaint laid out the following particulars of trespass as against the defendants; 20

- Driving away the plaintiff's supervisor from the quarry. $i$ . - Sending away the plaintiff's workers. ii. - Taking over some of the plaintiff's employees. iii. - Employing an armed police officer to keep away the plaintiff's directors iv. and loyal employees from the quarry.

*Selling the plaintiff's crushed stones.* $V$ .

- Crushing the stones that had been blasted by the plaintiff and selling off. vi. - Dismantling the plaintiff's quarry and carrying away two crushers, vii. stands, screen, a generator and other equipment found at the quarry *for use by the plaintiff.*

The evidence on record as testified to by to PW2 Olupot Sam, PW3 Euju Julius, PW4 Elibu Moses and PW5 Orianga Sam show that the plaintiff was the first to $\mathsf{S}$ go to the community of Asinge in regard to the plaintiff's interest in quarrying the rock situated there for purposes of its business. These witnesses all testified that the plaintiff met, held negotiations and consultations with and subsequently agreed with the Ongeseba community found in Asinge area for the said community to lease their land where Asinge rock was situated for purposes of its 10 quarrying business, the plaintiff went on to set up its machines in the area and started its operations. That upon all the necessary preliminary procedures were followed and even part payment for the lease of the land was made, the plaintiff was allowed to set its machinery and start blasting the rock at its Asinge site with the collected debris ferried to its other site at Ongeseba for crushing into 15 commercial aggregates.

The proof of the sale of the rock to Orianga Sam who was a representative of the plaintiff is non-other than PEx1 and PEx6 which were sale agreements for the land at Ongeseba (PEx1) and the rock site (PEx6), respectively.

These documents were admitted unchallenged as part of Orianga Sam's (PW5's). There being nothing to the contrary to the legality of these documents, I would agree with counsel for the plaintiff that the plaintiff by the evidence of its witnesses had proved that it was in legal possession of land at Ongeseba and the rock site at Asinge before the defendants forcefully took over the same.

That the defendants trespassed onto those properties of the plaintiff is also not disputed for both the plaintiff's witnesses and the defence do agree that sometime in May 2018 that Hon. Ikojo, the 1<sup>st</sup> defendant, entered upon the suit land and even called a meeting of the plaintiff's workers and even other members of the community and he informed them that the plaintiff, including Orianga Sam

$25$

and Odongo James had been working for him but due to their inefficiency, he had $\mathsf{S}$ decided to take over the business of the plaintiff under the name of the second defendant.

It is also unchallenged that the 1<sup>st</sup> defendant took over both sites at Ongeseba and Asinge including their commandeering the workers therein to work for them as well their using the equipment found at the two sites except for Orianga Sam and Odongo James, a supervisor and a directors of the plaintiff, respectively, who were barred by orders of the $1^{\ensuremath{\text{st}}}$ defendant with the said orders implemented by police officers at the site, from stepping foot on the sites being.

The fact that the defendant crushing and selling all the stones blasted by the plaintiff is also not in issue as the defendants admit to those facts in their 15 pleadings and so is the fact of the defendants transferring all the equipment from Ongeseba crushing site to their new site at Asinge.

Indeed, PW1 Barongo Gerald, who came with the stone crushing machine hired out to the plaintiff hired Katende testified that he was directed to dismantle the crusher from the old site and reassemble it at the new site by Hon. Ikojo, the 1<sup>st</sup>

- 20 defendant in the new site. This witness further listed all the other equipment and machinery which he transferred from the plaintiff's site at Ongeseba to Asinge site which was for the defendants. He even told court that at Ongeseba site the only things he left there were an empty store and pit latrine. - The fact of the police being deployed at the Ongeseba site is also proved as this 25 is testified to by all witnesses and their assertion in this respect remained unchallenged and believable for the defendants themselves state so.

The fact of Odongo Sam, a director of the plaintiff and his owing money to the $1^{\rm st}$ defendant as testified by PW5 Orianga Sam show the motive of the defendants

- in depriving the plaintiff of its properties yet that motive was an illegal one and $\mathsf{S}$ did not give the $1^{st}$ defendant the right to take over the sites as there was no evidence that the transactions between Hon. Ikojo's transactions and Odongo Sam who is one of the director of the plaintiff which is a separate legal entity from its directors and members. - Accordingly, from the evidence on record, it is clear that the acts of the 10 defendants of; - Driving away the plaintiff's supervisor from the quarry. a. - Sending away the plaintiff's workers. b. - Taking over some of the plaintiff's employees. $C.$ - Employing an armed police officer to keep away the plaintiff's d. directors and loyal employees from the quarry. - Selling the plaintiff's crushed stones. e. - Crushing the stones that had been blasted by the plaintiff and $f$ . selling off. - Dismantling the plaintiff's quarry and carrying away two g. crushers, stands, screen, a generator and other equipment found at the quarry for use by the plaintiff,

without the authority of the plaintiff amounted to trespass and I would, accordingly, find and conclude that the defendants trespassed on the site of the plaintiff Asinge and Ongeseba and converted them to their own use. Accordingly, this issue is proved.

## d. Issue 4: The remedies are available to the plaintiff, if any: $\mathsf{S}$

The plaintiff prayed for the following remedies:

An order of payment of Ugx. 266,000,000/= (Two hundred and sixty-six i. million shillings only) as special damages.

An order that the quarry belongs to the plaintiff. ii.

- A permanent injunction stopping the defendants and or their agents iii. from entering and crushing or carrying away stones from the quarry. - An order directing the defendants to return the equipment to the iv. quarry. - Interest on i at the rate of 30% per month. V. - 15 vi. General damages. - vii. Costs of the suit.

The evidence of PW5 Orianga Sam that he bought the land at Ongeseba where the crushing site was and of negotiating for the rock where the blasting was done is supported Pex1 and Pex6, which are agreements rendering the sites in question

to the personal use of the plaintiff. The plaintiff thus had the right to quietly enjoy 20 the sites in question but was denied the right to use the same unlawfully by the defendants as is supported by the unchallenged evidence Olupot Sam, the LC1 Chairperson of Ongeseba village whose testimony corroborated that of Sam Orianga that the plaintiff had, through its employees, bought land at Ongeseba village to be used as a crushing site. 25

This fact is further corroborated by Euju Julius, the chairman of Itekok Omorit clan which owns the suit land who testified that indeed the plaintiff through its agent Orianga Sam entered an agreement with his clan for use of the rock at Asinge for quarrying at a sum of Ugx, 35,000,000/= as compensation for the rock though only part payment was made. Even the LC II of Awoja parish confirmed that fact and also testified that the $\mathsf{S}$ plaintiff through its agents went to their village of Awoja where he organised a meeting with all the LCI Chairpersons in the area involved and who owned land around the Olilingai rock at Asinge the plaintiff's agent showing them the agreements for the use of both the land at Ongeseba and Asinge where the rock was found. These witnesses' testimony was also unchallenged and was believable 10 as he had nothing to gain in telling court lies as he factually pointed out that the sites for the activities of the plaintiff was not in his village but at Asinge and Ongeseba which were outside his jurisdiction but that he called a meeting of all

respect of its quarrying business. 15

On the basis of the above factual evidence, I would conclude and find that the plaintiff not only was the first to acquire the quarry business sites at both the Ongeseba site and the Asinge site, but carried out all the necessary preparations to implement its business which was disrupted by the violent actions of the defendants.

concerned and they got informed of the upcoming activities of the plaintiff in

Accordingly, my having found that the quarry sites at Ongeseba and Asinge specifically Olilingai rock belonged to the plaintiff and the defendants as trespassers thereon, it follows that a permanent injunction should issue against the defendants restraining them and their agents from entering onto the quarry and carrying out any activities thereon.

Furthermore, it is clear to me that that the defendants took away illegally equipment which either personally belonged to the plaintiff or were hired by the plaintiff for its quarrying business. These equipment as per evidence include evidence on record the plaintiffs 'own equipment at the quarry site plus a big crusher hired from Katende Stone Quarry. The unchallenged and even admitted

evidence show that the defendants after trespassing onto the plaintiff's sites took $\mathsf{S}$ over all of the equipment found there and even transferred them to another site in Asinge closer to the rock.

The people involved in the transfer, specifically Barongo Gerald who testified as PW1 confirms this fact and even accepts being the person who dismantled and

- ferried the equipment even the defendants also their own machinery but simply 10 took all or any equipment they found at the site including those that belonged to the plaintiff and used them for their own gain. That at fact being so, the defendants would be ordered to return all the plaintiff's equipment they took in their proper working condition to the plaintiff's site at Ongeseba where they - originally were. Accordingly, an order is issued directing the defendants to return 15 the equipment to the quarry of the plaintiff with this order reiterating a similar order similarly issued on 30<sup>th</sup> April 2019 by Hon. Justice Batema N. D. A, a judge of this court, which to date the defendants have not complied with.

The plaintiff prayed for special damages worth Ugx. 266,000,000/= (Two hundred and sixty-six million shillings only). 20

In making this prayer, Counsel for the plaintiff relied on the holding in *Kyambadde* vs Mpigi District Administration [1983] HCB 44, where it was held that special damages, which should be strictly proved need not be supported by documentary evidence.

Counsel further submitted that since the plaintiff was denied the use of its site 25 and equipment as a result of the illegal acts of the defendants who even used its equipment, raw materials and sites for financial gains, then they should be made to compensate the plaintiff by an award of special damages.

The particulars of special damages as indicated in the plaint are;

$\mathsf{S}$

**i.** Crushed stones on the site sold

$56,000,000/=$

**ii.** *Mesne* profits for the use of the Surrounding land and equipment Which continues to accrue **iii.** Costs of setting up the quarry

$10,000,000/=$ $200,000,000/=$

- Counsel for the plaintiff submitted that this court should thus be pleased to 10 award the plaintiff special damages amounting Shs. 235,650,000/= (Two hundred and thirty-five million, six hundred and thousand shillings) after summing up the same by $=$ by adding up the following; - $i.$ Cost of hiring the crusher from Katende at Ugx. 15,000,000/= per month and the plaintiff paid 30,000,000/ $=$ per Pex3. - ii. Transportation of the crusher to Soroti at Ugx. 10,000,000/= - iii. Part payment of the rock at ugx. $3,500,000/=$ - iv. Quality assessment of the rock at $450,000/$ = - Drilling the rock at $23,200,000/=$ V. - vi. Payment of the Ballistics team at Ugx. $8,000,000/=$ 20 - vii. Vehicles hired to transport the explosives AT Ugx. $2,000,000/=$ - viii. Cost of manually crushing the boulders and transporting them at Ugx. 15,000,000. - ix. Sell of crushed stones at Ugx. $56,000,000/=$ - Balance payment for the rock at Ugx. $31,500,000/=$ Χ. - xi. Cost of their crusher at Ugx. $35,000,000/=$ . - xii. Cost of their generator at Ugx. $51,000,000/=$ .

Special damages are such as the law will not infer from the nature of the act, they relate to past pecuniary loss calculable at the date of trial and encompass past expenses and loss of earnings.

- The principle of law is that special damages must be specifically pleaded and $\mathsf{S}$ proved, but that strictly proving does not mean that proof must always be documentary evidence. Special damages can also be proved by direct evidence; for example, by evidence of a person who received or paid or testimonies of experts conversant with the matters. - See: Gapco (U) Ltd Vs A. S. Transporters (U) Ltd CACA No. 18/2004 and Haji Asuman 10 Mutekanga Vs Equator Growers (U) Ltd, SCCA No.7/1995.

In the instant case the applicant seems to be even seeking expenses incurred during the setting up of the quarry as well as lost earnings from the use of the quarry. This is a fact which can be garnered from the evidence of PW5 Orianga Sam who is a director of the plaintiff. This witness in his evidence in chief told court about the setting up costs.

In addition, he told court that to the stones the defendants did sell at Shs. 56,000,000/= the stones which he had blasted and quarried and processed as relayed to him by informed by an askari he employed called Gervase whom Hon.

- Ikojo, the 1<sup>st</sup> defendant retained at the sites, who counted the number of trucks 20 and types of vehicles that ferried stones from the site as follows; - a) 35 tonne trucks ferried stones 28 times with each trip sold at UGX. $1,500,000/$ = totalling to Ugx. 42,000,000/= and; - b) 7 tonnes trucks ferried 40 trips with each trip sold at UGX. 350,000 and this totalling to Ugx. 14,000,000/ $=$

Making a grand total of UGX. 56,000,000/=.

However, given that this court has already twice made orders that the plaintiff's equipment be returned in working condition, I find it unnecessary for the cost of these equipment to be awarded to them. Had the plaintiff had adduced evidence

$\mathsf{S}$ that the defendants had destroyed the machines thus making them unusable or that the defendants were not in position to have returned the machines in their working conditions, then this court would have been convinced and inclined to make an award in respect of the values of those machines. That has not been done and so the issuing an order to that effect without evidence would amount to double enrichment. 10

On the other hand, I would find that the plaintiff is entitled to special damages for lost earnings arising from the use of its machines and raw materials only by the defendants for it is clear from the evidence on record that from July 2018 when Hon. Ikojo and the 2<sup>nd</sup> defendant transferred all the equipment from the plaintiff's site to his to his new site till July 2020 when this matter came to court, 15 that is a period of over two years. Accordingly, I would award of Shs. $50,000,000/$ = as special damages for loss of income sufficient would cover the two years from May 2018 till July 2020.

- The plaintiff also sought for general damages for trespass on the plaintiff's property. On this, Counsel for the plaintiff submitted that a plaintiff who suffers 20 damage due to wrongful act of the defendant must be put in the position he or she would have been in had she or he not suffered the wrong. In making this submission Counsel relied on *Charles Acire v Myaana Engola HCCS No. 143 of 1993* and Kibimba Rice Ltd v Umar Salim SCCA No. 17 of 1992. - 25 Counsel added that the plaintiff has suffered greatly at the hands of the defendants which pain can only be atoned by general damages. Counsel then prayed that the said amount be awarded for trespass, suffering, pain, inconvenience and mental torture.

In law, the award of general damages is at the discretion of the court as its award $\mathsf{S}$ is based on the presumption that the same arose as the probable consequence of a defendant's acts.

From the evidence received in court, it is clear that the actions of the defendants were carried out with a lot of impunity as against the plaintiff.

- According to The Online Free Dictionary, https://www.thefreedictionary.com/, 10 impunity is defined as acting in a negative way and not being punished for a crime or misdemeanour committed. The impunity of crimes is one of the most prolific sources whence they arise. The Latin expression of it is *impunitas continuum affectum tribuit delinguenti.* - Wikipedia describes it as "...the ability to act with exemption from punishments, 15 losses, or other negative consequences. In the international law of human rights, impunity is failure to bring perpetrators of human rights violations to justice and, as such, itself constitutes a denial of the victims' right to justice and redress. Impunity is especially common in countries which lack the tradition of rule of law. - or suffer from pervasive corruption, or contain entrenched systems of patronage, 20 or where the judiciary is weak or members of the security forces are protected by special jurisdictions or immunities. Impunity is sometimes considered a form of denialism of historical crimes"

In my considered opinion, as surmised from the evidence on record, it is clear that, Hon. Ikojo had a specific and personal business relations with a one Odongo, 25 a director of the plaintiff, but out of impunity Hon. Ikojo decided to take over the business of the plaintiff out of the blue and without recourse to any legal redress and proceedings.

By Hon. Ikojo doing so in concert with the $2^{nd}$ defendant they apparently took $\mathsf{S}$ the law into their own hands and even stripped themselves of any protection of the law as they reduced himself to the level of common thieves when they action confiscated unlawfully the stone quarry equipment of the plaintiff yet the plaintiff, being a separate legal entity had nothing to do with his quarrels with Odongo. 10

That high handed action led to the plaintiff making unnecessary losses from its business and is evidence of the highest level of impunity which this court strongly condemns and would punishable both by awarding punitive damages to the plaintiff as against the two defendants.

- For the defendants carrying forcefully unlawfully entering the plaintiff's quarry 15 site, using its equipment, its raw materials, and subsequently taking away the machinery from the site, all of which actions led the plaintiff to loose income from its quarrying business, this court does condemn the defendants jointly to pay in equal amounts the sum of Ugx. $50,000,000/$ = as punitive damages. - In addition, the defendants are also condemned jointly to pay in equal amounts 20 to pay the sum of to paying general damages of Ugx. $100,000,000/$ = to the plaintiff for their act of trespass the site of and losses occasioned to it by the defendants' illegal actions.

In relation to the issue of interest on punitive and general damages, the above mentioned amounts, section 26 (1) of The Civil Procedure Act provides that 25 where interest was not agreed upon by the parties, then the court should award interest that is just and reasonable. This was also the position in *Waiglobe (U) Ltd* v Sai Beverages Ltd [2017] UGHCCD 172 which I adopt and concur with and would further add that given of the ever rising inflation in the country and the latent fact that on average the Uganda Shillings suffers constant depreciation, then 30

taking into account the prevailing economic value of money, the award of general $\mathsf{S}$ and special damages, shall carry interest at the rate of 18% per annum from the date of judgment until payment in full.

In regard to costs, Section 27(2) of the Civil Procedure Act provides that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order. The plaintiff having 10 proved its case is entitled to costs of the suit.

7. Conclusion:

This Honourable Court has fond that the plaintiff has proved its case against both defendants on a balance of probabilities on all issues raised and accordingly, judgment is entered in its favour and orders made and issued as below. 15

- 8. Orders: - a. The plaintiff's suit succeeds. - b. The defendants' counterclaim is dismissed for non-prosecution with costs to the plaintiff. - 20

- c. The plaintiff is found to be the rightful owner of the quarrying business at its sites at Ongeseba and Asinge. - d. A permanent injunction is issued against the defendants and or their servants restraining them and their agents from entering onto the quarry and carrying out any activities quarrying business at its sites at Ongeseba and Asinge. - e. An order is issued directing the defendants to return the equipment they had taken from the plaintiff's to the quarry of the plaintiff in good working conditions in reiteration of a similar order issued on 30<sup>th</sup> April 2019 by His Lordship Justice Batema N. D. A which to date has not complied with by the defendants.

f. The plaintiff is awarded as against the defendants jointly Shs. 50,000,000/ $=$ as special damages for loss of income from May 2018 to till July 2020 when this suit was filed. This award carries no interest and is to be paid in equal amounts.

g. The defendants are jointly condemned to pay to the plaintiff, in equal amounts, the sum of Ugx. 50,000,000/= as punitive damages.

- h. The defendants are condemned jointly to pay in equal amounts the sum of Ugx. 100,000,000/= as general damages for their act of trespass to the site of the plaintiff and losses occasioned to it by their illegal actions. - i. The award of general and special damages above shall carry interest at the rate of 18% per annum from the date of judgment until payment in full. - j. The plaintiff is awarded the costs of this suit.

I do so order

Hon. Justice Dr Henry Peter Adonyo

Judge

29<sup>th</sup> June 2023

$20$

$\mathsf{S}$

15