Juma Bitalo v Attorney General and M & T Construction Limited (Civil Suit No. 0150 of 2021) [2025] UGHC 296 (15 May 2025)

Full Case Text

![](_page_0_Picture_0.jpeg)

# **IN THE HIGH COURT OF UGANDA SITTING AT MUKONO**

Reportable Civil Suit No. 0150 of 2021

In the matter between

**JUMA BITALO PLAINTIFF**

**And**

# **1. THE ATTORNEY GENERAL**

**2. M & T CONSTRUCTION LIMITED DEFENDANTS**

**Heard: 8th May, 2025. Delivered: 15th May, 2025.**

*Administrative Tribunals - exclusive jurisdiction - where a right or liability is created by statute which gives a special remedy for enforcing the same, the remedy provided by statute must be availed of in the first instance - Where rights and liabilities are the creatures of a statute and a remedy is provided for the enforcement of the same, then that remedy alone can be availed of and no suit will lie before the ordinary civil court for their enforcement - a party cannot invoke the unlimited jurisdiction of the High Court to evade the exclusive jurisdiction of an administrative tribunal.*

# **RULING**

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

## **STEPHEN MUBIRU, J.**

The background;

[1] The plaintiff is the registered proprietor of land comprised in Kyaggwe Block 364 Plots 40 and 96 at Wakabuzi in Buikwe District, measuring approximately 5.10 and 2 hectares respectively. He also owns a *kibanja* adjacent to that land. On or about 10th June, 2019 the Rural Electrification Agency under the Ministry of Energy and Mineral Development entered onto his land and established thereon a high voltage power transmission line, during the process of which his trees and various food crops were mowed down. He was as a result deprived of the use of approximately 0.576 and 2.884 acres respectively constituting the wayleaves of the power line traversing his land. He therefore filed this suit seeking a declaration that the defendant's activities on his land constitute a violation of his property rights, trespass to his land, an order of eviction, a permanent injunction, mesne profits, general damages and costs.

[2] The 1st defendant in its written statement of defence denied liability and contended that the 2nd defendant was acting on a frolic of its own. The 2nd defendant too in its written statement of defence denied liability and contended that the plaint does not disclose a cause of action against it. Access to the land on which it established the high voltage power transmission line was provided to it by the Rural Electrification Agency under the Ministry of Energy and Mineral Development following the latter's agreement with the landlords. The 2nd defendant was made to understand that the Rural Electrification Agency working together with the local political and civic leadership had secured the landlords' consent to the project free of demands for compensation.

#### The preliminary objection;

[3] When the suit came up for scheduling on 4th June, 2024, it was mutually agreed between the parties that a preliminary objection, although not contained in any of the defendants' respective written statements of defence, be addressed first by way of written submissions. It was contended that the suit cannot be sustained before this Court. In addition, that the plaint does not disclose a cause of action against the 2nd defendant.

### The submissions of Counsel for the 2nd defendant;

[3] Counsel for the 2nd defendant submitted that this is an electricity dispute and by virtue of section 118 (1) and (3) of *The Electricity Act,* this Court only has appellate jurisdiction. The primary jurisdiction is vested in the Electricity Disputes Tribunal. When a statute vests jurisdiction in a specified body, a party cannot invoke the unlimited jurisdiction of this Court as a Court of first instance. Having been contracted by the Rural Electrification Agency under the Ministry of Energy and Mineral Development, the 2nd defendant is an agent of a disclosed principal and thus does not bear any liability for the wrongs complained of. Counsel prayed that the plaint be struck out.

### The submissions of Counsel for the plaintiff;

[4] Counsel for the plaintiff, submitted that sections 118 (1) and (3) of *The Electricity Act,* address disputes between licensees and the regulator. A dispute of the nature forming the basis of this suit is not within the jurisdiction of the Electricity Disputes Tribunal. Neither the defendants nor the Rural Electrification Agency is a licensee within the meaning of the Act. The 2nd defendant was sued as an independent contractor and not as ana gent of the Rural Electrification Agency. Counsel prayed that the objections be overruled and the suit be set down for hearing.

### The decision;

[5] It is a well-established proposition that where a right or liability is created by statute which gives a special remedy for enforcing the same, the remedy provided by statute must be availed of in the first instance (see *Wolverhampton New Water Works Co. v. Hawkesford (1859) 6 CB (NS) 336 at p. 356* and *Dr. Charles Barugahare v. Makerere University and three others, H. C. Misc. Cause No.147 of 2020*). If a statute provides a specific remedy, that remedy is often considered exclusive, meaning that it is the only way to address the issue created by the statute. If a statute outlines a process for appealing an administrative decision (e.g., in this case section 70 (3) of *The Electricity Act* provides that any person aggrieved by the decision of the Authority under that section may appeal to the tribunal), the person affected must first exhaust that appeal process before they can challenge the decision in court.

- [6] The remedy provided in the Act will impliedly exclude the jurisdiction of the civil court to that extent. Where rights and liabilities are the creatures of a statute and a remedy is provided for the enforcement of the same, then that remedy alone can be availed of and no suit will lie before the ordinary civil court for their enforcement. This principle reflects the legislative intent that the specific remedy provided by the statute is the preferred or intended way to address the issue. - [7] According to section 67 (3) of *The Electricity Act*, a licensee performing any activity necessary for the purpose of establishing, constructing, repairing, improving, examining, altering or removing an electric supply line, or performing any other activity under the Act, is under obligation to do as little damage as possible to the land and to the environment and to ensure prompt payment of fair and adequate compensation to all interested persons for any damage or loss sustained by reason of the exercise of the powers under the Act. By virtue of section 70 (2) and (3) of the Act, any person claiming for compensation under that section is required to lodge his or her claim with the authority within one year of the date of the act of the operator which gave rise to the claim, except that the time for lodging the claim may be extended on application to the Electricity Regulatory Authority, showing sufficient reasons for the extension. A person aggrieved by the decision of the Electricity Regulatory Authority may, within thirty days after the decision is made, appeal to the Electricity Disputes Tribunal. Any person aggrieved by a decision of the tribunal may then, within thirty days from the date of the decision or order, appeal to the High Court (see section 110 (3) of the Act). - [8] The Act defines a licensee as "the holder of a licence under this Act" (see section 3 (w) of the Act). A licensee authorised by the Electricity Regulatory Authority either

generally or on a particular occasion, may place and maintain electric supply lines in, over or upon any land and for that purpose it is lawful, upon written authorisation by the Electricity Regulatory Authority, for the licensee or his or her representative, at all times, on reasonable notice, to enter upon any land and put up any posts which may be required for the support of any electric supply lines, as well as to cut down any tree or branch which is likely to injure, impede or interfere with any electric supply line (see section 67 (1) (a) and (c) of the Act). According to section 53 of the Act, no person may construct, own or operate an installation for the transmission of electricity without a transmission licence granted by the Electricity Regulatory Authority. Accordingly, a person who generates, transmits or distributes electricity for the purpose of giving a supply to any premises or enabling a supply to be so given, except under the authority of or under an exemption given under this Act, commits an offence (see section 61 (a) of the Act).

- [9] It was contended by counsel for the plaintiff that neither the defendants nor the Rural Electrification Agency is a licensee within the meaning of the Act, such that their activities are not subject to the jurisdiction of Electricity Regulatory Authority and the Electricity Disputes Tribunal. The Rural Electrification Agency was established in accordance with Section 62 of *The Electricity Act*, as a semiautonomous agency by the Minister of Energy and Mineral Development through *The Electricity (Establishment and Management of the Rural Electrification Fund) Instrument, No. 75 of 2001* to operationalise Government's rural electrification function under a public-private partnership. - [10] The Electricity Regulatory Authority regulates the entire electricity sector in Uganda and is responsible for licensing, and supervising the generation, transmission, distribution, sale, export, and importation of electrical energy in Uganda. With the declared legislative intent expressed in the long title of *The Electricity Act*, aimed at providing a comprehensive legal framework for the generation, transmission, distribution, sale and use of electricity; to provide for the licensing and control of activities in the electricity sector; to provide for plant and

equipment and for matters relating to safety; to liberalise and introduce competition in the electricity sector, the dispute resolution mechanism set out in sections 67, 70 and 110 of the Act was clearly intended to establish a mechanism that is not only empowered to hear and determine all matters referred to it, including disputes between consumers and licensees, but also among electricity sector players and stakeholders. It is a specialised process designed to deal with all matters within the electricity sector, at first instance. Section 109 of the Act specifically provides that the Electricity Disputes Tribunal has jurisdiction to hear and determine all matters referred to it "relating to the electricity sector." There is a clear legislative intent to provide a dedicated, specialised system, with powers similar to those of this Court, in order to efficiently and effectively handle all electricity-related disputes.

- [11] In a sector as highly regulated as this, it is inconceivable that the Rural Electrification Agency would undertake a project of the magnitude of the one in issue, a component of which is now the subject of this litigation, without a license from the Authority. The legal and regulatory framework for the electricity sector provides for a specific remedy and process that is considered exclusive, meaning that it is the only way to address the issue created by the statute. The statute itself outlines the process for appealing any administrative and quasi-judicial decision. This court only has appellate jurisdiction and powers conferred by section 110 (3) of the Act, from decisions of the Electricity Disputes Tribunal, made within thirty days from the date of the decision or order appealed. - [12] A party cannot invoke the unlimited jurisdiction of the High Court to evade the exclusive jurisdiction of an administrative tribunal (see *Uganda Revenue Authority v. Rabbo Enterprises (U) Limited and another, S. C. Civil Appeal No.12 of 2004*). That being the case, the preliminary objection is sustained. It is not necessary to consider the second aspect of whether or not the plaint discloses a cause of action. In the final result, the suit is incompetent before this Court and it is hereby struck out with costs to the 2nd defendant.

Delivered electronically this 15th day of May, 2025 …Stephen Mubiru……..

Stephen Mubiru Judge, 15th May, 2025

Appearances;

- For the plaintiff : M/s Nyanzi, Kiboneka and Mbabazi Advocates. - For the 1st defendant : Attorney General's Chambers. - For the 2nd defendant : M/s Tumwesigye Mbonye & Co. Advocates.