Attorney General v Tandeka (Miscellaneous Application 25 of 2024) [2024] UGHC 930 (1 October 2024)

Full Case Text

### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT MASAKA

## **MISCELLANEOUS APPLICATION NO. 25 OF 2024**

ATTORNEY GENERAL ::::::::::::::::::::::::::::::::::::

### **VERSUS**

**EXAMPLE 20 EXECUTE: EXECUTE: EXECUTE: EXECUTE: EXECUTE: EXECUTE: EXECUTE: EXECUTE: EXECUTE: EXECUTE: EXECUTE: EXECUTE: EXECUTE: EXECUTE: EXECUTE: EXECUTE: EXECUTE: EXECUTE: EXECUTE:** TANDEKA JAMES

(As Administrator of the Estate of the late Kabayiza Efulayim) and 8 **Others**

### **Before: HON JUSTICE LAWRENCE TWEYANZE**

#### **RULING**

### Introduction.

1. The Applicant brought this Application under, Article $26(2)(a)$ & (b) of the Constitution, Section 33 of the Judicature Act Cap 16, Section 98 of the Civil Procedure Act Cap 282, Section 6 of the Land Acquisition Act Cap 235, and Order 52 rules 1 & 3 of the Civil Procedure Rules as amended for Orders; The Applicant be granted leave to deposit in Court the Respondents' compensation sum of UGX 182,019,743 (Uganda Shillings One Hundred Eighty Two Million Nineteen Thousand Seven Hundred Forty Three) for land comprised in the villages of Kabayoola, Kyemandwa A, Kitembo A, Kitembo B, Muyenje, and Binikiro in Sembabule District forming part of the land earmarked for the East Africa Crude Oil Pipeline project (hereafter referred to as 'EACOP Project'); That the Applicant be granted vacant possession of the land in above to conduct its activities thereon; That the Applicant be granted eviction and demolition orders against the Respondents; That the Applicant be discharged from any liabilities arising out of any claim and/ or action following the orders sought herein, and that costs of this Application be provided for. SMALLA

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- 2. The grounds in support of this Application are stated in the Affidavits deponed by Irene Pauline Bateebe and Gilbert Kermundu but briefly they are: - That the implementation of the EACOP Project requires the acquisition of land measuring approximately 2740 acres in the Districts of Hoima, Kikuube, Kakumiro, Kyankwanzi, Mubende, Gomba. Sembabule, Lwengo, Rakai and Kyotera being acquired under the Resettlement Action Plan 2021 (hereinafter referred to as "EACOP RAP") by East African Crude Oil Pipeline EACOP) Ltd (hereafter referred to as "EACOP Ltd") on behalf of the Government of Uganda. - 3. That the Government through EACOP Ltd has been undertaking land acquisition for purposes of constructing the East Africa Crude Oil Pipeline and compensating impacted landowners and land users (hereinafter referred to as "Project Affected Persons"). That on 29th November 2019, the Minister of Lands, Housing and Urban Development published the Land Acquisition (Development of the East African Crude Oil Pipeline) Statutory Instrument No. 105 of 2019, declaring the land described therein as required by Government for public purpose. That the Government has continuously engaged the Project Affected Persons throughout the EACOP RAP development and implementation process. That the continuous engagements included surveys and capture of asset inventories, disclosure of the cut off dates, disclosure of entitlements, disclosure of the grievance resolution mechanism and financial literacy trainings. - 4. That the Government undertook valuation of all the land to be acquired for the development of the EACOP Project. All the valuation reports were approved by the Chief Government Valuer, Ministry of Lands, Housing and Urban Development to facilitate the payment of compensation of the Project Affected Persons. That the Respondents are landowners whose land measuring about 14.996 acres located in the villages of Kabayoola, Kyemandwa A, Kitembo A, Kitembo B, Muyenje, and Binikiro in Sembabule District is affected by the EACOP Project. - 5. That since 2022 the Government through the EACOP Ltd has been unable to compensate the Respondents due to the following reasons: The 1st Respondent has not signed the compensation agreement because the 2nd

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Jun 1997

Respondent, a beneficiary in the Estate of the Late Kabayiza Efulayim, refused to accept compensation as approved by the Chief Government Valuer; the $4^{th}$ and $5^{th}$ Respondents have subsisting land ownership disputes, the $3rd$ , $6th$ and $7th$ Respondents are beneficiaries of Estates which lack legally recognized legal representatives.

- 6. That following the compensation of the 8th and 9th Respondents, the Applicant has been unable to access the project land because of their refusal to vacate the land. That on 20th November 2023, the Chief Government Valuer was appointed by the Minister of Lands, Housing and Urban Development as the Assessment Officer in respect of the EACOP Project. That on 25th January 2024, the Notice of Intention by the Government to take possession of the suit land was gazetted and copies sent to all relevant persons/ stakeholders and exhibited at convenient places near the suit land. - 7. That between 12th to 23rd February 2024, the Assessment Officer held meetings with the $1^{st}$ , $3^{rd}$ , $4^{th}$ , $5^{th}$ , $6^{th}$ and $7^{th}$ Respondents. That the refusal by the $1^{st}$ and $2^{nd}$ Respondent to accept compensation, non-resolution of the land ownership disputes between the $3^{rd}$ , $4^{th}$ and $5^{th}$ Respondents, lack of legally recognized representatives for the $3rd$ , $6th$ and $7th$ Respondents have constrained the implementation of the EACOP Project. That it is in the interest of justice and fairness that the Applicant is granted the orders sought herein to enable EACOP Ltd continue with development of the EACOP Project without any hindrances. - 8. Edward Mugisha, the 5th Respondent filed his reply and stated that he is not aware of any land dispute between himself and the 4th Respondent Agali Awamu Farmers Association. That he searched the Registers including Sembabule District Local Government and discovered that the 4th Respondent Agali Awamu Farmers Association does not exist has no capacity to own land, and he attached a copy of the letter dated 3rd September, 2024 Sembabule District Community Development Officer as Annex A. That he further searched the Land Registry Masaka MZO for land comprised in Block 186 Plot 28 Mawogola attributed to the 4th Respondent assessed and valued by the Applicant and discovered that the said Plot 186 does not exist, and he attached a copy of the Report dated MILIKE

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4th September, 2024 as Annex B. That he is the registered proprietor of the land comprised in Leasehold Register Volume 3329 Folio 23 Block 186 Plot 13 Land at Kabagole which land is affected by the EACOP Project but it was never valued or assessed and does not form part of the valuation report attached to the Application.

- 9. That there was a land ownership dispute on the land comprised in Leasehold Register Volume 3329 Folio 23 Block 186 Plot 13 Land at Kabagole between himself and Ssenyondo Joseph Sisiro and Rwambonera Joseph which dispute was disposed-off by High Court Masaka under Civil Suit No. 33 of 2015. That under Paragraph 25 page 7 of the Judgment of the High Court Masaka under Civil Suit No. 33 of 2015, he was declared the legal owner with legal interest in the suit land and he is entitled to compensation to the extent of his rights in the said land. That though he attempted to Appeal the decision of High Court Masaka under Civil Suit No. 33 of 2015 to Court of Appeal, he has since withdrawn the said Appeal and there is no pending land ownership dispute on the land comprised in Leasehold Register Volume 3329 Folio 23 Block 186 Plot 13 Land at Kabagole. - 10. That the Assessment Officer and the officials of Ministry of Energy and Mineral Development have never approached or convened a meeting with the 5th Respondent, all efforts to contact them were ignored. That all the correspondences on the subject suit were erroneously sent to the 4th Respondent Agali Awamu Farmers Association. Attached are copies of the letters dated 29th February, 2024 and 8th August, 2024 as (c) That no valuation was conducted on the land comprised in Leasehold Register Volume 3329 Folio 23 Block 186 Plot 13 Land at Kabagole; That the land comprised in Block 186 Plot 28 Mawogola that was assessed and valued does not exist. - 11. That the valuation report submitted by the Assessment Officer is defective and includes land that does not exist such as land comprised in Block 186 Plot 28 Mawogola and omits the land comprised in Leasehold Register Volume 3329 Folio 23 Block 186 Plot 13 Land at Kabagole which is affected by EACOP Project. That it is just and equitable that this Application against the 5th Respondent be dismissed with costs and order the Applicant to assess and value the land comprised in Leasehold

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$\mathcal{L}$

Register Volume 3329 Folio 23 Block 186 Plot 13 Land at Kabagole and compensate the 5th Respondent accordingly.

- 12. The 7th Respondent, Kivumbi Zakayo Francis, in his affidavit in reply stated that, he presented himself to the office of Administrator General with a view to process and obtain Letters of Administration to the Estate of the late Yokana Masikati, but all his attempts have been futile as the office of Administrator General informed him that all Estates under the Succession Register were halted to be issued with Certificate of No Objection following the advice or opinion of the Applicant. That the 7th Respondent is an ascertained and recognised beneficiary in the Estate of late Yokana Masikati and therefore competent to receive the compensation from the EACOP Project. - 13. That the $7th$ Respondent has no objection to the amount valued in his family affected area for the project and ready to receive it as per the valuation report. That he does not intend to delay a Government Project by denial of an ascertained amount by the Government Valuer. That the Applicant is clothed with all the necessary avenues to ascertain and or find out whether he qualifies to receive the said compensation or not and also to advise the Administrator General to grant him the necessary legal authority to be able to receive the compensation without the orders sought in this Application. That if the Applicant declines to advise the Administrator General in relation to the beneficial interest in the Estate of late Yokana Masikati that is affected by the Succession Register, it would be evident that the Applicant's opinion relating to halting the issuance of Certificate of No Objection in files under Succession Registers was a calculated move by the Government of Uganda to tactically acquire their land without compensation. - 14. The 9th Respondent, Ssemwogerere Rashid in his affidavit in reply stated that the said time, EACOP found when he was carrying out finishing exercise on his house to be able to shift from rented premises to his own house. That the officials of the company directed him to stop any developments on his house and advised that he stays renting for a few months until they have deposited the compensation value from then. That he continued renting for his family at UGX 300, $000/$ = (Three

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hundred thousand shillings) per month until the month of October, 2023 a period of 48 months. That following the directives, he stopped everything and never resided or even preventing any of the officials of the company from accessing the land and house thereon.

- 15. For the 4th Respondent, Agali Awamu Farmers Association. Ssenyondo Joseph Sisiro filed an Affidavit in reply, that he is a member of Agali Awamu Farmers Association as self-help group of farmers duly registered, and attached is a copy of the certificate of registration marked A. That as members of Agali Awamu Farmers Association, himself and others applied for and were granted land at Kyemandwa Village, Ssembabule Town Council, Ssembabule District where they have and we are doing farming. That part of the said land was affected by the Crude Oil pipeline project. - 16. According to the affidavit of service deponed by Opio Moses, some of the Respondents could not be located and others were served, and they filed their Respective Affidavits in reply which are on Court record as above. Only affidavits filed on Court record have been considered and if others were filed, the same have not been brought to my attention at the time of this ruling. Nonetheless, this Application shall be determined with the available material on Court record. - 17. At the hearing, the Applicant was represented by Mr. Mugisha, the State Attorney from the Attorney General's Chambers. The 1st, 2nd, 3rd, and 8th Respondents were unrepresented. The 4th, 5th, 6th, 7th and 9 the Respondents were in Court. The respective parties filed their submissions which I find repetitive in material to the contents of the affidavits save for the cited authorities which have been noted, and will not be restated herein.

The issues for determination are:

- 1. Whether the Applicant should deposit the Respondents' compensation sum in court. - 2. What remedies are available to the parties?

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Mumb - 18. The determination of this Application of this nature between the parties rest on establishing facts regarding the nature and character of the rights vested in the land, the capacities of the parties and the legal and equitable implications of the Applicant's acquisition of land, if it meets the requirements of being in public use. In this case, the Application and the affidavits in support of the Application with the annexures suggest that the lands in issue are sought to be acquired for public use, thus; for the EACOP project and, the Assessment Officer made the relevant and appropriate compensation awards to the Persons Affected by the Project (the PAPs). - 19. According to Article 26 (2) of the Constitution of the Republic of Uganda 1995, as emphasized in the case of Advocates for Natural Resources Governance and Development & 2 Others vs AG & Another CCCP No. 40 of 2013, No person shall be compulsorily deprived of property or any interest in or right over property of any description except where the following conditions are satisfied –

(*a*) the taking of possession or acquisition is necessary for public use or in the interest of defence, public safety, public order, public morality or public health; and

(b) the compulsory taking of possession or acquisition of property is made *under a law which makes provision for –*

(i) prompt payment of fair and adequate compensation, prior to the taking of possession or acquisition of the property; and

(ii) a right of access to a court of law by any person who has an interest or right over the property....

20. The right to property is a fundamental right guaranteed by the above Article 26 of the Constitution, and this right to private property, cannot be deprived without due process of law and upon adequate compensation. Therefore, the Government cannot dispossess citizens of their property except in accordance with the procedure established by law. The obligation to pay adequate compensation is mandatory. It therefore follows that having regard to the provisions contained in Article 26 of the Constitution, the State in exercise of its power of "eminent

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$500006$

domain" may interfere with the right of property of persons by acquiring the same but the same must be for a public use and adequate compensation therefore must be paid.

- 21. Section 6 of the Land Acquisition Act, is the one that governs how the Government compulsorily acquires land and it provides that; - "(4) where an Assessment Officer makes an award..........in respect of any land- - $(a)$ .................... - (b) subject to Subsection (5), the Government shall pay compensation in accordance with the award as soon as possible after the expiry of the time *within which an appeal may be lodged.* - (5) Where- - (*a*) *an appeal is lodged against an award made under this Section;* - (*b*) *a person awarded compensation under this Section refuses to accept payment;* or - (c) any other circumstances arises which renders it inexpedient, difficult or *impossible to make payment in accordance with the award,* The High Court, on the Application of the Attorney General, may order payment to be made into Court on such conditions as it thinks appropriate". - 22. The above provisions of the Land Acquisition Act are in line with the provisions of Article 26 of the Constitution of the Republic of Uganda. In Attorney General versus Etot Paul Peter & Ors C. A. C. A. No. 144/2018, Madrama, J. A (as he then was)"Article 26 of the Constitution allows the compulsory acquisition of property by government for public use or in the interest of defence, public safety, public order, public marketing or public health. It further provides that the compulsory taking of possession or acquisition of property should be made under a law which makes provision for prompt payment of fair and adequate compensation prior to the taking of possession or acquisition of the property and it guarantees the right of access to a Court of law by any person who has an interest or right over the property..... Article 26 of the Constitution envisages a dispute after the compulsory acquisition of the property and gives right of access to a Court of law to any aggrieved persons". - 23. In this matter before Court, it is not in dispute that the assessments of awards for compensation were made by the Applicant as required under the Land Acquisition Act, by looking at the material brought and

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SMMMA

tendered in this Court, it is clear that the lands of the Respondents and those that claim an interest in them were identified by the Applicant for acquisition and for purposes of the EACOP project. In the case of the Attorney General. vs Kisembo Rugadya & 41 Ors H. C. M. A. No. 24 of 2023, Court stated that "Court is required to apply Article 26 of the Constitution, bearing in mind and in regard to especially when disputes arise and have the potential to cause delays in public works and become an impediment to the public interest and the logical need not to hamper the implementation of the project merely because of the disputes among the Respondents themselves or *disputes challenging the assessed award*".

- 24. The Applicant who represents the Government must comply with the procedure for acquisition, requisition, or any other permissible statutory mode. The Government being a democratic State is governed by the rule of law and cannot arrogate to itself a status beyond what is provided by the Constitution. The right to property is now considered to be not only a constitutional or statutory right, but also a human right. Human rights have been considered in the realm of individual rights such as right to shelter, livelihood, health, employment, etc. Human rights have gained a multi-faceted dimension. - 25. In a democratic State, the authorities are bound, not only to pay adequate compensation, but there is also an obligation upon them to ensure that such persons are not greatly inconvenienced. Therefore, it is not permissible for the State to uproot persons and deprive them of the fundamental/constitutional/human without rights, adequate compensation under the confines of public use. - 26. In this case, the Applicant has properly demonstrated through the 2 affidavits in support of the Application deposed by Irene Pauline Bateebe and Gilbert Kermundu that all the legal requirements for the acquisition of the Respondents' land under the Constitution and the Land Acquisition Act have been met. The assessed compensation awards have been made in respect of the Respondents' respective portions of land as per the copies of the valuation and survey extracts of the Respondents as contained in the Approved Valuation Reports marked. The refusal to accept compensation, absence of legal representatives and inability to

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locate certain Respondents therefore, justify the depositing of the compensation sum in Court to as to legally discharge the Applicant's obligations while enabling the Government to take possession of the land and proceed with the project. Moreover, some of the Respondents are agreeable to the assessed compensation awards.

- a. From the affidavit of Mr. Gilbert Kermundu, the Chief Government Valuer and the Assessment Officer in this case, it has been established that the land and assets rates for the properties affected by the EACOP project were determined by the relevant appropriate surveyors and the Government valuer respectively and the appropriate assessed compensation awards have been accordingly made. In the circumstances of this case, some of the Respondents appeared but rejected compensation and others failed to resolve the disputes on As such, this court proceeds under S.6 (5) of the Land land. Acquisition Act to allow this Application for the Applicant to deposit the total compensation sum of UGX 182,019,743 (Uganda Shillings One Hundred Eighty Two Million Nineteen Thousand Seven Hundred Forty Three as assessed by the Chief Government Valuer and the Assessment Officer for later collection of its beneficiaries, the Respondents upon their re-appearance for those who are untraceable and upon securing the relevant legal representative authorities for those who comprise of families of the deceased persons and those who are dissatisfied with the awarded compensation sum or contesting the valuation itself, to institute legal proceedings by way of objection or through any other action to the High Court under S.13 of the Land Acquisition Act. I have not found anything material from the Respondents' affidavits that would be a big issue to the progress of the EACOP project if the orders sought by the Applicant are granted. - 27. Resultantly, the Application is accordingly granted with the following orders: - a. That Applicant is granted leave to deposit in Court the Respondent's compensation sum of UGX 182,019,743 (Uganda Shillings One Hundred Eighty-Two Million Nineteen Thousand Seven Hundred Forty-Three) as assessed by the Chief Government Valuer and the

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Assessment Officer for land comprised in the villages of Kabayoola, Kyemandwa A, Kitembo A, Kitembo B, Muyenje, and Binikiro in Sembabule District forming part of the land earmarked for the East Africa Crude Oil Pipeline project.

- b. The above sum in (a) above shall be deposited on the account of the Registrar High Court, Account Number: 003010088000012 Bank of Uganda - c. The Applicant is granted vacant possession of the land in (a) above to conduct its activities thereon. - d. The Applicant is granted eviction and demolition orders against the Respondents but must do so without endangering human life and in accordance with the law. - e. The Applicant is discharged from any liabilities arising out of any claim and/ or action following this order. $\frac{1}{2}$ - f. No orders as to costs.

I so order.

Ruling signed and delivered by email at Masaka this 1st day of October, 2024

muum

LAWRENCE TWEYANZE JUDGE. 1st October, 2024.