Bahimbiriza Bidindwale v Total Energies E P Uganda B V (Civil Suit 36 of 2022) [2024] UGHC 1145 (13 December 2024)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT HOIMA CIVIL SUIT NO. 0036 OF 2022 (Formerly MSD C. S No.29 of 2022)

BAHIMBIRIZA BIDINDWALE ::::::::::::::::::::::::::::::::::::

#### **VFRSUS**

#### TOTAL ENERGIES E. P UGANDA B. V :::::::::::::::::::::::::::::::::::

#### Before: Hon. Justice Byaruhanga Jesse Rugyema

#### **JUDGMENT**

- [1 $\bigcap$ The Plaintiff sued the Defendant for inter alia, an order directing the Defendant to pay a sum of $Ugx$ 74,620,000/= to the plaintiff, interest on the sum at 24% per annum from the date of Judgment in HCCA No.52 of 2016 till full payment, general and punitive damages arising from the Defendant's acquisition of the plaintiff's land on behalf of the Government of Uganda for the Tilenga Oil Project operations. - It is the Plaintiff's case that he is the lawful owner of land in Kasinyi L. C1 $[2]$ village, Ngwedu sub county, Buliisa District which was acquired by the Defendant for the Tilenga project activities, and that he litigated with a one Ochaya Mugayo Lovis who trespassed on the 2 acres of the suit land vide C. S No.02 of 2015, Masindi Chief Magistrate's court where he contended that **Ochaya Mugayo** trespassed on his land. - That the Defendant however sought to acquire and use the suit land and was $[3]$ permitted by both the disputing parties to use the land pending the dissolution of their dispute regarding the rightful owner of the land. The land of the plaintiff was then professionally surveyed and found to be 16.4 acres and the alleged trespassed upon portion of land by Ochaya Mugayo was 2 **acres** of the land. - At the conclusion of C. S No.02 of 2015, judgment was entered in favour of $[4]$ the plaintiff. The Defendant Ochaya Mugayo appeared dissatisfied with the

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- judgment and orders of the trial Magistrate and appealed the decision to the High Court vide **Civil Appeal No.52 of 2016.** - During the pendency of the appeal, the parties and the Government of $[5]$ **Uganda** represented by **Ministry of Energy & Mineral Development** and **Total** Energies Uganda B. V, entered into a memorandum of understanding wherein the Defendant expressly undertook to pay the successful party in **Civil Appeal** No.52 of 2016 a compensation sum of Ugx 74,620,000/= for the land acquired by the defendant. - $[6]$ On the 26th of November 2021, judgment in **civil Appeal No.52 of 2016** was delivered in favour of the plaintiff. Consequent of the decision on appeal, the plaintiff demanded for the payment of the agreed upon sum of Ugx $74,620,000/$ = but the defendant refused to pay and instead responded that the plaintiff was only entitled to a sum of $Ugx$ 40,950,000/=. It is as a result of the above that the plaintiff filed the present suit. - The Defendant on the other hand denied the plaintiff's claims and contended $[7]$ that though indeed it entered into a memorandum of understanding with the parties in C. S No.02 of 2015 that the assessed sum of Ugx $74,620,000/$ = would be paid in respect of land measuring **16.461** acres upon determination of Civil Appeal No.52 of 2016, judgment on appeal was instead entered in favour of the plaintiff for land measuring 9 acres only and not the entire **16.461 acres** reflected in the said memorandum of understanding. That as a result of the judgment on appeal, whereas the plaintiff made a demand for the entire sum of Ugx 74,620,000/=, Ochaya Mugayo Lovis was demanding for the payment of **7 acres** of the land after deducting the **9 acres** decreed to the plaintiff. - The Defendant finally averred and contended that it has always been willing [8] to pay the plaintiff the sum equivalent to **9 acres** for which it got judgment and any disputes to ownership or claim to the above monies would have to be resolved between the warring parties.

# **Counsel legal representation**

The plaintiff was represented Mr. Lou Jarvis of M/s Kabayize, Kavuma, $[9]$

Mugerwa & Ali Advocates, Kampala while the Defendant was represented by Mr. Andrew Mauso of M/s S & L Advocates, Kampala. Both counsel filed their respective submissions for consideration in the determination of this suit.

# **Issues for determination**

- [10] During scheduling, the parties agreed upon the following issues for determination of this suit; - 1. Whether the plaintiff is entitled to the Ugx $74,620,000/$ = from the Defendant.

2. What remedies are available to the parties.

# Issue No.1: Whether the plaintiff is entitled to the Ugx 74,620,000/= from the Defendant.

- [1.] Counsel for the Plaintiff submitted that the **Plaintiff** and **Ochaya Mugayo** Lovis entered into a memorandum of understanding dated 21st November 2018 (P. Exh.7) and that the crux of the memorandum of understanding was the ownership of customary land that was the subject of a dispute between the parties in Civil Appeal No.052 of 2016. That according to the memorandum of understanding, it was agreed in clause 2, that upon the final determination of HCCS No.52 of 2016, the compensation amount of Ugx $74,620,000/$ = shall be paid to the successful project affected person (PAP) declared by court to be the owner of the land. - [12] That HCCA No.52 of 2016 was finally determined by the delivery of the judgment on the $26/11/2021$ where **Ochaya Mugayo's** appeal was dismissed thereby upholding the lower court's decision that decreed the suit land to the plaintiff. - [13] That following the delivery of the judgment in HCCA No.52 of 2016 in his favour, the plaintiff requested from the defendant for payment of Ugx $74,620,000/=$ in light of the memorandum of understanding and the judgment (P. Exh.10). The defendant however merely offered to pay only Ugx 40,950,000/= instead of Ugx 74,620,000/= intimating to pay the rest of the monies i.e, the balance amounting to Ugx 33,670,000/= to Ochaya Mugayo Lovis.

- [14] Relying on the authority of Saladin Media Advertising T/A OMD (U) Vs Pioneer Easy Bus Ltd, HCCS No.435 of 2012, counsel concluded that the actions of the defendant not only violate the agreement between the parties but also sought to strike a new bargain with another party disregarding the memorandum of understanding. That in the premises, the Plaintiff is entitled to Ugx 74,620,000/=. - [15] Counsel for the defendant on the other hand submitted that in acquiring land for the Tilenga oil project on behalf of the Government of Uganda, the suit land was identified and found to be 16.461 acres (D. Exh.1) out of which 9 **acres** were a subject of a dispute pending in court. That as per the memorandum of understanding (P. Exh.7) the parties gave consent that the Defendant's project activities commence on the land and compensation would be paid to the person declared by court to be the land owner. - [16] That in the determination of the dispute pending in court, both the lower court and the High Court found that the plaintiff owned 9 acres worth Ugx $40,950,000/$ = and that since the other party Ochaya claimed the residual 7.461 acres (D. Exh.2), the plaintiff would not be entitled to the entire land value of Ugx 74,620,000/= but Ugx 40,950,000/= (the pro rate value for 9) acres). - Relying on the authority of **Nipun N. Bhatia Vs Crane Bank Ltd, CACA No.75** $[17]$ of 2006 counsel argued that by awarding the plaintiff $Ugx$ 74,620,000/=, the value of 16.461 acres yet he was decreed only 9 acres worth Ugx $40,950,000/$ = would amount to an unjust enrichment and court should not sanction such. - [18] As per the submissions of both counsel above, it is apparent to this court that the determination of the dispute between the parties in this case depends on the interpretation of the pleadings by the parties, judgment and orders in **C. S** No.02 of 2016, HCCA No.52 of 2016 and, the memorandum of understanding reached by the parties and the defendant in this case dated $21/11/2018$ $(P. Exh.7)$ . - [19] According to the judgment and orders in **C. S No.2 of 2015,** clearly, the dispute was on **approximately 2 acres** of land which had been allegedly trespassed

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- upon out of approximately 9 acres the plaintiff claim belonged to him (P. Exh.1). The judgment in favour of the plaintiff was delivered on 20/10/2016 while the memorandum of understanding (M. O. U) between the parties and the defendant in this case was reached upon $21/11/2016$ . The M. O. U was entered into pending the determination of the appeal. - [20] It should however be recalled that the land in question was unregistered land and therefore un surveyed which implied that its acreage was either unknown or was merely being estimated. The Defendant however, upon acquisition of the land for its activities clearly identified and marked /mapped out the disputed portion of land between the Plaintiff and Ochaya pending in court and subjected it to survey. Upon survey, the land was instead found not to be **9 acres** as estimated by the plaintiff in his pleadings in court but **16.41 acres**. - [21] The above clearly show that the approximately 100 acres of land claimed by the defendant, Ochaya Mugayo in C. S No.02 of 2015, if at all it existed, did not include the disputed land which the Defendant in the present suit identified and marked/mapped out for compensation (P. Exh.3). The piece of land in dispute as identified and marked /mapped out by the defendant upon survey was found to be 16.41 acres and court decreed that disputed land to the plaintiff. The defendant in C. S No.02 of 2015, Ochaya Mugayo therefore cannot be seen to claim this land merely because upon survey, it was found to be above the approximated pleaded acreage of 9 acres. The present defendant cannot therefore rely on the claim of the Defendant, Ochaya Mugayo in C. S No.02 of 2015 which was rejected as false by the trial Magistrate and her decision was upheld by the High Court. - It should also be recalled that when the parties in C. S No.02 of 2015 entered $[22]$ the M. O. U with the present defendant, they were alive or were made alive to the physical land in dispute as identified and mapped by the present defendant for survey. This mapped out land was the one in dispute pending compensation to the successful party in court as regards its ownership. It was eventually decreed to the plaintiff. The Defendant should therefore in the circumstances of this case comply with the terms of the M. O. U regarding the payment of $Ugx$ 74,620,000/= to the plaintiff. - [24] The above also probably explains why neither the said Defendant in C. S No.02 of 2015, Ochaya Mugayo or his estate, since he is reported dead, applied to

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- be added in this suit as a defendant nor did the present defendant file interpleader proceedings as it intimated in a letter dated $30th$ January 2023 addressed to this court, to determine which party as between the Plaintiff and Ochaya Mugayo is entitled to receive the balance $Ugx$ 33,670,000/= compensation amount. Therefore, for the present defendant to pay Ochaya Mugayo, the defendant in C. S No.2/2015, part of the agreed upon compensation shall amount to allocating him land that he never owned. The present Defendant cannot be seen to strike a new bargain with another part, **Ochaya Mugayo** disregarding the M. O. U between the parties and itself. - [25] As per the M. O. U dated $21/11/2018$ (P. Exh.7) that bound the parties in C. S **No.02 of 2015** and the present defendant, it is thus:

"upon final determination of High Court Civil Appeal No.51 of 2016....the compensation amount of Ugx $74,620,000/=$ *(Seventy four million six hundred twenty thousand shillings)* shall be paid to the successful PAP who is declared to be the owner of the land. By signing this MOU, the PAPs agree that the stated amount constitutes full and final compensation for all user and re user rights or interests in respect of the land."

The Plaintiff having been the successful party over the dispute regarding the suit land and no appeal was preferred to the Court of Appeal by the Appellant, Ochaya Mugayo, I find that the plaintiff in this case is entitled to the agreed amount of $Ugx 74,620,000/$ = compensation of his land as per the M. O. U made between the parties.

[25] As a result of the above, the $1^{st}$ issue is found in favour of the plaintiff. The Plaintiff is entitled to the **Ugx 74,620,000/=** from the defendant.

# **Issue No.2: Remedies available to the parties**

## 1. An order directing the Defendant to pay the sum of Ugx $74,620,000/$ = to the plaintiff.

[26] This court having found that the suit portion of land was accordingly decreed to the plaintiff, it follows that the plaintiff is entitled to payment of the compensation sum of $Ugx$ 74,620,000/= from the defendant.

## 2. General damages

- [27] It is trite that the award of general damages is in the discretion of court and they are presumed to be the natural and probable consequence of the defendant's act or omission; James Fredrick Nsubuga Vs A. G, HCCS No.13 of 1993. They are sums which fall to be paid by reason of some breach of duty or obligation whether the duty or obligation is imposed by contract, by general laws, or legislation, Lord Greene M. R in Hall Brothers Steamship Co. Ltd Vs Young (1938) 43 Com. Cas 284 cited in S & A Consultants Ltd Vs Crane Management Services Ltd, HCCS No.352/2013. - [28] In the instant case, the plaintiff has been unlawfully deprived of huge sums of money meant to compensate him his land taken over by the Defendants for its Tilenga Oil Project activities. This must in addition, have occasioned him stress, mental trauma and a lot of inconvenience as a result of the uncertainty regarding the fate of his money as evidenced by his repeated demands for payment of the compensation sum form the defendant. As a result of the above, I consider $Ugx$ 25,000,000/= as appropriate general damages to the plaintiff in the circumstances of this case.

### **3. Punitive damages**

- [29] These form of damages may be awarded where there has been oppressive, arbitrary or unconstitutional behaviour. Where the Defendant's conduct was calculated by him to make a profit which may well exceed the compensation payable to the plaintiff, or where some law for the time being in force authorizes the award of exemplary damages, Rookes Vs Barnard [1964] All ER 367 [1964] AC 1129. - [30] In the instant case, the Defendant commenced its activities on the suit land before payment of the compensation but with the consent of the plaintiff pending the resolution of the dispute over the land with a one Ochaya **Mugayo.** However due to the way the Defendant construed the decision of the court regarding the ownership of the land in question, the Defendant was unable to pay the plaintiff his full compensation. It cannot in the circumstances of this case be found that the defendant's conduct was oppressive or arbitrary. It was merely a result of the defendant misconstruing the court decision. As a result, I do find that this is not a case that court has

to award punitive damages.

## 4. Interest

- [31] It is trite that interest is awarded at the discretion of court and judiciously taking into account the circumstances of the case, URA Vs Stephen Mabosi, SCCA No.1 of 1996. The basis of such an award is that the defendant has kept the plaintiff out of his money so the plaintiff ought to be compensated accordingly, Harbult's Plasticine Ltd Vs Wyne Tank & pump C. Ltd [1970] Ch.447 and Roko Construction Vs A. G, HCCS No.517 of 2005. - [32] In the instant case, clearly the defendant kept the plaintiff out of use of the money from the 26th day of November 2021 when the High Court finally adjudicated over the suit land and delivered judgment upholding the decreeing of the suit land to the plaintiff. Upon receipt of the judgment finally settling the issue of ownership of the land, there is evidence that the plaintiff repeatedly demanded for payment of the compensation sum but in vain (P. Exhs.10 & 11). - [33] In the premises, I find the plaintiff entitled to interest and considering the circumstances of this case, this case being of a commercial nature, I award the plaintiff interest on the decretal sum of $Ugx$ 74,620,000/= interest at the rate of 24% per annum and from 26/11/2021, the date of the judgment in Civil Appeal No.52 of 2018 till payment in full and as regards the General damages, Ugx 25,000,000/= to carry an interest at the rate of 18 % per annum from the date of this judgment until payment in full.

## 5. Costs of the Suit

- [34] The plaintiff as the successful party is awarded costs of the suit (S.27(2) CPA). - [35] In conclusion, judgment is entered in favour of the plaintiff with the following orders: - a) The defendant to pay the plaintiff the compensatory sum of Ugx $74,620,000/=$ . - b) General damages of $Ugx$ 25,000,000/=. - c) Interest on the sum of **Ugx 74,620,000/=** at **24% p.a** from $26/11/2021$ , the date of judgment in Civil Appeal No.52 of 2018 till payment in full

and interest on General damages at 18 % p.a from the date of this judgment till payment in full.

d) Costs of the suit are awarded to the plaintiff.

Dated this 13th day of December, 2024.

. . . . . . . .

Byaruhanga Jesse Rugyema **JUDGE**