Kyewalabye v Uganda National Roads Authority (Civil Suit 78 of 2021) [2024] UGHC 1188 (21 October 2024)

### THE REPUBLIC OF UGANDA

#### IN THE HIGH COURT OF UGANDA AT MPIGI

### CIVIL SUIT NO. 78 OF 2021

#### ...................................... KYEWALARYE FRED....................................

#### **VERSUS**

UGANDA NATIONAL ROADS AUTHORITY....................................

### BEFORE: HIS LORDSHIP HON. JUSTICE OYUKO ANTHONY OJOK

#### Judgment

#### Brief background: 10

The Plaintiff sued the Defendant for fraud, trespass and compensation for the illegal alienation of the suit land. The plaintiff seeks the following orders;

- a. A declaration that the plaintiff is the rightful owner of the suit land comprised in Mawokota Block 88 Plots 412, 629 and 630 at Mabuye, Katende, Mpigi District, - **b.** Declaration that the Defendant's actions of compensating alleged Bibanja owners on the suit land without the Plaintiff's consent was/is illegal, - c. An order directing the defendant to fully compensate the plaintiff for the alienation of the suit land to a tune of UGX 220,000,000/ $=$ - **d.** A declaration that the defendant's actions of compensating alleged bibanja owners on the suit land without the plaintiff's consent was/is illegal. - **e.** Disturbance allowance at 30% of UGX 77,760,000/ $=$ - $f.$ A declaration that any transaction relating to occupation, sale or disposal of the suit land by anyone without the written consent of the plaintiff was/is null and void. - g. A declaration that the defendant and its agents or persons claiming interest from it are trespassers on the suit land. - **h.** An order for a permanent injunction restraining the defendant, its agents, servants, assignees and any other person(s) claiming interest under it, from utilizing, trespassing, selling or otherwise in any way disposing off, wasting, developing or alienating of the suit land comprised in Mawokota Block 88 Plots 412, 629 and 630 land at Katende Mabuye, Mpigi District.

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- i. An eviction order against the defendant and its agents or any person claiming interest from it on the suit land or any part thereof. - i. Mesne profits. - **k.** An order directing the defendant to pay general damages to the plaintiff for the inconveniences caused. - 1. Interest on $(c, e, j)$ and $(k)$ above at the commercial rate p.a from the date the cause of action arose until payment in full. - **Costs of the suit.** - **n.** Any other relief as the court may deem fit. - The Defendant on the other hand denied all the contents of the plaint and in its $10$ Written Statement of Defence averred that the Plaintiff was paid compensation sums approved by the Chief Government Valuer for all the portions of the affected land between July-October, 2019. That Luseesa Vincent has never been paid by the defendant for an alleged kibanja on Plots 629 and 630. That all Kibanja holders - for portions on the affected land were paid with the full knowledge and consent of 15 the Plaintiff following the then prevailing compensation procedures and the law. As such the Plaintiff is not entitled to the remedies sought.

### Representation:

Counsel Mutumba Fred represented the plaintiff while Counsel Pecos Mutatina appeared for the defendant. Both parties filed written submissions:

### Issues:

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- 1. Whether the Defendant in dealing with the suit land, committed Fraud, Trespass and illegally alienated the Plaintiffs' land? - 2. Whether the Defendant adequately compensated the Plaintiff for land comprised in Mawokota Block 88 Plot 412, 629 and 630 at Katende Mabuye before taking possession of the affected land? - **3.** Whether the Defendant illegally expropriated 81 Decimals out of Plot 412? - 4. Whether the Defendant is liable to pay compensation for the affected land within the pre-existing carriageway/road. - 5. Whether other individuals compensated by the Defendant on the Plaintiff's land were/are lawful or bonafide occupants? - **6.** Whether the Defendant's act of compensating occupants / squatters on the Plaintiff's land was illegal? - **7.** Whether the Parties are entitled to the remedies sought?


#### Resolution of issues:

## Burden of proof:

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**Section 101** of the Evidence Act provides as follows;

"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 acts exist."

**Section 103** of the Evidence Act provides that;

"The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person."

In the case of **Nsubuga v. Kavuma U9781 HCB 307** it was held that;

"In civil cases the burden lies on the plaintiff to Prove his or her case on the *balance of Probabilities'*"

## Issues 1 and $3$ :

#### 1: Whether the Defendant in dealing with the suit land, committed Fraud, Trespass 15 and illegally alienated the Plaintiffs' land?

# 3: Whether the Defendant illegally expropriated 81 Decimals out of Plot 412?

Counsel for the plaintiff submitted that it is not in contention that the Plaintiff was/is the Registered proprietor of Mawokota Block 88 Plots 412, 629 and 630 at 20 Mabuye, Katende, Mpigi District, land affected by the construction of the Kampala-Busega-Mpigi Expressway Road on Katende- Bujjuko Spur. That the Defendant Compensated the Plaintiff as a Landlord, on Plot 412 for 43 Decimals, on Plot 629 for 45 Decimals, however, to the Plaintiff's shock, on collection of his residue title from Plot 412 on 17<sup>th</sup> August 2021, he discovered that the Defendant had instead parceled off 1.24 Acres in excess of 81 Decimals which amounts to fraud. And that in regard to Plot 629 an excess of 8 decimals was not paid for.

That the Defendant took possession and started construction on the Plaintiff's land without prior and adequate compensation which acts amount to dishonesty. trespass and illegal alienation of the Plaintiff's land hence denying him his right to property as provided in **Article 26** of the Constitution of the Republic of Uganda.

Counsel for the defendant on the other hand submitted that on the 27<sup>th</sup> October, 2022, a partial consent was entered into between the plaintiff and the defendant in which the plaintiff was to be compensated for an additional 0.22 acres over and above the 43 decimals already paid for under Plot 412. That indeed the plaintiff

was paid for the said 0.22 acres making the total land paid for under plot 412, 0.65 acres. That it was also the testimony of DW2 that the existing Katende-Bujjuko road traversed Plot 412 and occupied 0.566 acres. Thus, a summation of the acreage paid for 0.65 acres and the acreage occupied by the pre-existing road (0.566 acres) makes a total of the land curved off plot 412. Additionally, that the 0.22 acres compensated were over and above the 43 decimals already paid for.

Further, that before the plaintiff was compensated, he was taken through an identification, verification and disclosure exercise as per DEX2 and during that exercise DW1 told court that the plaintiff was informed of the acreage affected off each title and also shown the amounts to be paid under each title. That he was also informed that he would be paid 30% since he had bibanja holders which he did not object to meaning that he acknowledged the existence of the bibanja holders. That it was the testimony of DW1 that the plaintiff signed mutation forms for the defendant to mutate off the respective affected areas. That the plaintiff was compensated long before the road construction started which was confirmed by the plaintiff during cross examination. Therefore, there was no fraud committed by the defendant.

Counsel added, that the plaintiff seeks to be compensated for the 0.566 acres for the existing Katende-Bujjuko Road, however, the said road has always been open to the general public as a gravel road for over 20 years. Besides, this claim is time barred as it has been brought outside the timeframe set under **Section 6(d)** of the Limitation Act. And the plaintiff cannot claim to be compensated for a public road and he has no claim for that portion of land since he has no control over it.

In regard to trespass, it was submitted for the defendant that the evidence of DW1 shows that the plaintiff was compensated for 0.431 acres under Plot 412, 0.459 $25$ acres under Plot 629 and 1.270 acres under Plot 630 on the 15<sup>th</sup> October, 2018. And, payment was made before the road works began which was confirmed by the plaintiff. That as such the plaintiff lost interest to the defendant in the acquired land which absolves the defendant of the alleged trespass.

$30$ Counsel for the plaintiff in rejoinder submitted that in regard to the partial consent that the defendant's surveyor guided that the road on plot 412 was 43 decimals hence a balance of 13.8 decimals and the 8 decimals making a total of 22 decimals that were to be valued and compensated. That as such the road is not 56 decimals as submitted for the defendant and this was admitted by DW2 who in cross examination stated that there was extra land taken by the defendant according to 35 DEX4 which indicated that the pre-existing road on Plot 412 was 43 decimals and not 56 decimals.

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I have carefully considered the evidence on record, the exhibits tendered in court and the submissions of both parties in this regard.

$\mathbf{A}$ In the instant case it is the plaintiff's contention that the defendant fraudulently. illegally alienated and trespassed on the suit land and also compensated him for less land on Plot 412 as opposed to what was taken. The plaintiff also seeks to be

$\mathsf{S}$ compensated for the pre-existing road on Plot 412.

The defendant on the other hand averred that all the dealings in the suit land were done with the indulgence of the plaintiff and he was paid accordingly.

The plaintiff was originally paid for 0.431 acres according to annexture "D1" to his witness statement and an additional 0.22 acres arising from the partial consent 10 in this case making a total of 0.651 acres paid for by the defendant on Block 88 Plot 412. The pre-existing road is said to have been covering 43 decimals on plot 412. The plaintiff claims that the defendant took 1.24 acres on Plot 412 as opposed to the 43 decimals they were supposed to have taken and this left an excess of 81 decimals unpaid for.

I have taken the initiative to add the different parcels of land as paid for by the defendant and the pre-existing road to find the extent of the land that is covered by the old road and the new road project on Plot 412. Initially, the defendant paid for the 0.431 acres, an additional 0.22 acres as per the partial consent and the preexisting road covers 0.43 acres when these are added all together they come up to 1.081 acres. The defendant in the instant case took off 1.24 acres on Plot 412 as evidenced by the certificate of title in that regard meaning that the plaintiff's land was taken in excess of $0.159$ acres that are unpaid for.

As for Plot 629, I am unable to determine where the basis of the extra 8 decimals is derived from that the defendant is said to have taken in excess of the 45 decimals 25 and is therefore unpaid for. Unlike the 0.159 that I could deduced from the evidence adduced, the same is not possible for Plot 629. Besides, the plaintiff claims that he has never received the residue time from the said plot from the defendant to date. This court is therefore unable to verify the plaintiff's claim as far as plot $629$ is concerned. 30

Secondly, the plaintiff in my view cannot claim for compensation on a pre-existing road having admitted that when he purchased the suit land, the same was already in existence and being used by the public. The defendant in this regard averred that the said road had been in existence for 20 years and therefore, the plaintiff's claim is time barred.

I find that the plaintiff is only entitled to payment for 0.159 acres on Block 88 Plo 412 and cannot claim compensation for a preexisting road.

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In regard to the acts of the defendant being fraudulent, both parties cited the definition of fraud as per the case of **Fredrick Zaabwe v. Orient Bank and Others. C. A No. 4 of 2006,** where it was defined as, an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or surrender a legal right.

The defendant in this case averred that compensation was done before they started construction of the road which was confirmed by the plaintiff, as such there was no fraud on the side of the defendant and they are not trespassers on the same.

According, to the case of Justine E. M. N Lutaaya v. Stirling Civil Engineering Co. **S. C. C. A No. 11 of 2002,** trespass to land was said to occur; when a person makes $10$ an unauthorized entry upon land, and thereby interfering, or portends to interfere, with another person's lawful possession of that land."

It is my considered view that in this case the defendant paid compensation to the plaintiff before it could occupy the suit land therefore there was no unlawful entry onto the suit land as such there was no illegal alienation of the suit land. The moment the defendant paid for the suit land, the plaintiff lost his interest in the same.

I therefore, find that the plaintiff is only entitled to compensation of 0.159 acres and not 81 decimals on Plot 412 as claimed. These two issues are hereby resolved in the negative.

# Issue 2: Whether the Defendant adequately compensated the Plaintiff for land comprised in Mawokota Block 88 Plot 412, 629 and 630 at Katende Mabuye before taking possession of the affected land?

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Counsel for the plaintiff submitted it was the plaintiff' evidence that he was compensated for Block 88 Plots 412, 629 and 630 which initially measured Approx. 4.32 Acres, 1.45 Acres and 1.270 Acres respectively, the road corridor affected the above plots by 0.431 Acres, 0.459 Acres and 1.270 Acres respectively which portions the Defendant paid the Plaintiff 30% of the total value of the land as land Lord. That he submitted his titles to the Defendant for mutation and on $17<sup>th</sup>$ August, 2021 on collection of the residue titles on Plot 412, he discovered that the Defendant had parceled off 1.24 Acres instead of the 43 decimals paid for, way in excess by 81 decimals and extra 8 decimals on plot 629 unpaid for by the Defendant without the Plaintiff's Knowledge or consent in that regard.

Counsel added that during the pendency of this suit, the Defendant admitted having not compensated the Plaintiff for an extra 22 Decimals on Plot 412 from 35 the 81 Decimals the Plaintiff is claiming, hence reaching a Partial Consent settlement and subsequently paying the Plaintiff for the extra 22 Decimals. That

what is left is 59 Decimals on plot 412 & 8 Decimals on plot 629 unpaid for by the Defendant which the Plaintiff still claims and is entitled to.

Counsel for the defendant on the other hand submitted that the plaintiff was adequately compensated and did not present a valuer to substantiate on his claims for inadequate compensation. That in the instant case though the plaintiff tendered a valuation report he did not present the author of the same. As such, the said report should be disregarded. That the uncompensated pieces cannot be equated to inadequate compensation.

Counsel added that the defendant presented DW1 who is a valuer and according to DEX1 he showed that the plaintiff's land was assessed, valued and the rate used 10 for an acre in that area. That at the time of identification, verification and disclosure the plaintiff did not object but rather agreed to the compensation sums.

Further, that the plaintiff upon signing the defendant's compensation forms accepting the amounts offered by the defendant, a contract was created and he became bound by that agreement. He is therefore estopped from laying any further claims of inadequacy as per Section 114 of the Evidence Act.

Counsel for the plaintiff in rejoinder submitted that the inadequate compensation in this case is in regard to the extra land that was taken by the defendant and are unpaid for.

20.3 It is my considered view that non-payment cannot be equated to inadequate compensation as the plaintiff claims in the instant case. In adequate compensation relates to where payment is made but is not sufficient or not equivalent to the value of the property being compensated for.

Article 26 of the Constitution of the Republic of Uganda provides for protection from deprivation of property. It provides thus;

- 1. Every person has a right to own property either individually or in association with others. - 2. 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. - the taking of possession or acquisition is necessary for public use or $(a)$ 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-

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

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

The Constitution provides for prior payment of compensation before taking possession or acquisition of land and such compensation should be adequate.

Article 237 of the Constitution provides that Government can only take over someone's land if it is in the interest of the public.

In the case of **Bhatt & Another v. Habib Raiani**, [1958] **E. A 536**, public interest was defined to mean the same purpose or objective in which the general interest of the community as opposed to the popular interest of individuals is directly and virtually concerned.

- The defendant in the instant case compensated the plaintiff according to the 15 approved rates by the Government valuer and these rates when disclosed to the plaintiff were not challenged. It is after payment of the same that now the plaintiff is challenging their adequacy. The rates relied on by the plaintiff according to his valuation report are rates of 2019 whereas payment was made in 2018 following - the rates of 2018 approved by the government valuer according to the prices of $20$ land in the area at that time. However, even though the plaintiff attached a valuation report, the author was never brought to court as witness to explain how the said amounts were reached while making the valuation report. As such, this court is unable to rely on that valuation report to prove the plaintiff's claim. The plaintiff was therefore unable to prove to this court that the defendant in this case - 25 paid him less than the monetary worth of the suit land. I therefore resolve this issue in the negative.

# Issue 4: Whether the Defendant is liable to pay compensation for the affected land within the pre-existing carriageway/road.

- Counsel submitted that the Plaintiff is the registered proprietor of the suit land 30 affected by an existing road initially measuring 43 Decimals which the Defendant is expanding currently, the Plaintiff seeks Compensation of that land within the carriageway which is part of the 59 Decimals still uncompensated for by the Defendant, having parceled off a title from the Plaintiff's land which covers the - said road without compensation by the Defendant and without any sort of 35 explanation as to why since 2018 to date.

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That the Plaintiff is a lay man, in his understanding, having obtained the suit property for valuable consideration, and the Defendant asserting that it took the land within the carriage way for free without reason and explanation is what baffles the Plaintiff as the Registered proprietor and therefore he was entitled to

the value of his land within the carriage way on the suit land and the Defendant is $\mathsf{S}$ liable to pay compensation for the same.

Counsel for the defendant on the other hand submitted that the public road has been in existence for 20 years and the plaintiff confirmed that at the time of purchase the road was in existence. Thus, he bought the said plot with a preexisting interest created thereon and the defendant was justified not to compensate

10 the plaintiff for the acreage covered by the said road.

As already discussed under issues 1 and 3, the plaintiff cannot be compensated for the pre-existing read that $\frac{1}{2}$ is a fact that $\frac{1}{2}$ is a fact that $\frac{1}{2}$ is a fact that $\frac{1}{2}$ is a fact that $\frac{1}{2}$ i the pre-existing road, the plaintiff bought the suit land with a pre-existing public road and he cannot now claim compensation from the defendant. The road has been a public pathway for 20 years way before the plaintiff bought the suit land. I

therefore find that the defendant is liable to compensate the plaintiff for the preexisting road. This issue is hereby resolved in the negative.

## $1$ ssues 5 and 6:

5. Whether other individuals compensated by the Defendant on the Plaintiff's land were/are lawful or bonafide occupants.

6. Whether the Defendant's act of compensating occupants /squatters on the Plaintiff's land was illegal?

Counsel for the plaintiff cited **Section 29(1) and (2)** of the Land Act which provides as follows,

"Lawful occupant" means—(a) a person occupying land by virtue of the repealed

$(i)$ Busuulu and Envujjo Law of 1928;

$(ii)$ Toro Landlord and Tenant Law of 1937;

Ankole Landlord and Tenant Law of 1937; (iii)

(b) a person who entered the land with the consent of the registered owner, and includes a purchaser; or

2. "Bona fide occupant" means a person who before the coming into force of the Constitution —(a) had occupied and utilized or developed any land unchallenged by the registered owner or agent of the registered owner for *twelve years or more;*

$25$ Or

(b) had been settled on land by the Government or an agent of the Government, which may include a local authority."

And, the case of River Oli Division Local Government v. Sakaram Abdalla Okoya Civil Appeal No. 0018 Of 2013, where it was held at that, $\overline{5}$

> "Bibanja holdings by virtue of the Busuulu and Envujjo Law 1928 the latter of which under s. 8 (1) provided that except a wife or a child of the holder of a kibanja, or a person who succeeds to a Kibanja in accordance with native custom upon the death of the holder thereof, no person had the right to reside upon the land of a mailo owner without first obtaining the consent of the mailo owner. Under s. 29 (1) (a) of the Land Act, such former customary tenants on land now have the status of lawful tenants. In such cases, there is no need to prove the nature and scope of the applicable customary rules and their binding and authoritative character but rather the production of evidence to show that the specific land in question is one to which such rules apply and that the acquisition was in accordance with those rules, for example by production of Busuulu Tickets, as was done in John Busuulwa v John Kityo and others C. A. Civil Appeal No. 112 of 2003, and in Kiwalabve v. Kifamba H. C. Civil Suit No. 458 of 2012. For such interests, production of an agreement purporting to sell and transfer a Kibanja holding is not sufficient proof of acquisition of a lawful holding. There is an additional need to prove consent of the mailo owner, e.g. introduction to the registered owner and payment of a "Kanzu."

Counsel further submitted that the Plaintiff testified that he notified the Defendant in 2017 about the status of the suit land. That there was a consent Judgement in $25$ Civil Suit No. 57 of 2014 where he had settled with the Defendants in that suit to share 50% on their respective bibanja and surrender 50% to the plaintiff in exchange for certificates of title which he gave them. That the instant defendant was informed that before compensating any person on his land, such claimant should present a land title or a written consent from the Plaintiff / land Lord to 30 confirm their interest. That the Plaintiff was later surprised to learn that the Defendant compensated Lusessa Vincent through his brother Mukiibi Michael and Pontian Mayega Ndogwe on Plots 412, 629 & 630 without a written consent from the Plaintiff yet he had notified the defendant about the consent judgment in July 2017. 35

Counsel for the plaintiff went on to submit that according to DW1 Allan Tony Kimera's testimony and DEx4 IVD forms for the Kibanja holders, he stated that during the Identification and Verification exercise he identified and verified on

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Plot 630, 629 and 412, Mukiibi Micheal, Mayega Pontian Ngondwe, Kikonyogo Daudi, Namubiru Nawanku Betina for Nakiryowa Hadijah Zirabamuzale, and Kakooza Wilson, who were assessed and compensated by the Defendant.

Additionally, according to DEx5 the Defendant's Survey Report at page 40, the people on Plot 412, also include Nyungwa Moses, Fred Mulyanga, Batuusa Jesca $\mathsf{S}$ and Tebagerwa Fred for whom collectively, no sale agreements, payment receipts or IVD forms were provided to court.

The plaintiff also tendered in court letters written to the Executive Director UNRA and the Consent Judgement that were marked as Exhibits PE-B1, PE-B2 and PE-B3. That despite the communication the defendant went ahead and compensated Luseesa Vincent or other people unknown to the plaintiff on Mawokota Block 88 Plot 412 and 629 and a one Pontian Mayega Ngondwe on Mawokota Block 88 Plot 630. That all these were compensated without the consent of the plaintiff save for Wilson Kakooza who sought consent. That it was also admitted by DW1 that it is good practice to obtain written consent from a land lord when transacting with bibanja holders. However, in this case he was not aware if any consent was sought from the Land Lord, before dealing with the bibanja holders on his land and in that case such land/ Kibanja reverts back to the landlord or Registered Proprietor.

Counsel for the plaintiff added that DW1 Allan Tonny Kimera stated that as a person in charge of identification of Kibanja Holders on the project, he did not seek 20 the permission or consent of the Plaintiff as the Land Lord before paying the Kibanja holders yet it is the standard procedure for the Defendant to obtain consent before they pay any claimant. That he further stated that the Plaintiff did not introduce or show him any Kibanja Holders among those he paid save for Wilson Kakooza whom the Plaintiff wrote a consent for his Kibanja for onward $25$ transmission to the Defendant.

DW1 also admitted that the paid Bibanja holders on the suit land did not present to them Busuulu/ Kanzu Tickets from the Plaintiff as Land Lord and yet they still went ahead to pay them.

- Counsel concluded that there was no evidence adduced by the Defendant to prove 30 that the above mentioned Bibanja holders were lawful or bonafide occupants, having occupied the Plaintiff's land with his consent, there were no sale agreements produced, nor Busuulu Tickets given by the Plaintiff as the registered proprietor or Kanzu receipts. The said bibanja holders were also not introduced to - the Plaintiff as the Landlord nor did they obtain consent at the time of entry on the 35 suit land and no evidence was produced in court to the contrary.

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Counsel for the defendant on the other hand submitted that the plaintiff admitted to the fact that there were bibania holders on the suit land at the time of purchase and these people had been on the suit land unchallenged with permanent structures and graves on the land. That had the plaintiff not had bibanja holders on the suit land he would not have signed the forms and accepted to be paid 30% instead of 100% compensation for all his land. And, according to DEX2 it is clear that the plaintiff was disclosed to, the compensation amounts first before the kibanaja holders. That the defendant then paid the 70% to those identified and confirmed by the area chairperson.

- Further, that the consent judgment alluded to by the plaintiff was in regard to Block $10$ 88 Plot 35 and only related to 6 bibanja holders and none of those bibanja holders were affected by the road construction nor were they paid. That the individuals that were paid did qualify as bibanja holders and had permanent structures on the land and graves indicating that they had been on the suit land for a long time since the plaintiff found them there while buying the land. As such, all the persons who 15 - were compensated on the suit land were bonafide occupants and not squatters and were paid with the plaintiff's consent.

Counsel for the plaintiff in rejoinder submitted that Block 88 Plot 35 Mabuye, a clear look at the title of Block 88 Plot 412 Mabuye, PEX A1, Plot 412 was a residue title as a result of subdivision from previously Block 88 Plot 35 which subdivisions 20 gave birth to Plot 629 and 630 remaining with Plot 412 as a residue by balance, therefore the instant suit was previously Block 88 Plot 35 the subject of the consent judgment in Civil Suit No. 057 of 2014 as PEX B3 hence one and the same subject matter only differentiated by subdivisions.

25 I have carefully considered the submissions for both parties in regard to these issues and it is my considered view that it was the plaintiff's evidence that he bought the suit land with bibanja holders thereon and the said land was therefore bought with all the interests subject to it.

The defendant in the instant case averred in its evidence that the Chairperson who 30 identified the plaintiff is the same one who identified the bibanja holders on the suit land. As such the defendant paid bonafide occupants on the suit land whose occupation of the same had been for a long period of time with even structures and graves thereon and had not been challenged by the plaintiff before the road project.

The plaintiff according to his letter dated 26<sup>th</sup> July, 2017 informed the defendant 35 that he was the owner of land comprised in Block 88 Plot 347 and had a pending suit against Mr. David Mutyaba, Senyonjo Fred, Galiwango Joseph who were bibanja holders. That a consent had been reached and it had been agreed that there

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would be a 50% - 50% division between the plaintiff as the land lord and the kibanja holder on the respective bibanja. That he did give them the titles and the residue title was Plot 412.

The two individuals that is Pontian Mayega and Mukiibi Michael stated by the plaintiff as having been paid by the defendant were never part of the consent $\mathsf{S}$ judgment and if they were, there was no proof indicating so adduced before this court. The plaintiff merely stating that Luseesa Vincent who he sued in the Magistrate's court was paid through his brother Mukiibi Michael 100% as opposed to having divided at 50-50 is not enough. How does this court ascertain that indeed

- Luseesa Vincent is related to Mukiibi Michael and the said payment was made to $10$ him through his brother? Why did Luseesa Vincent receive the payment on his own? And, why did Luseesa Vincent not have a certificate of title if he was part of the consent judgment in the magistrate's court? - I hereby find that the payments made by the defendant were not illegal, the plaintiff did confirm that he has bibanja holders on his land and these were identified and 15 confirmed by the area chairperson. If the plaintiff has any claims in regard to the suit land he is at liberty to sue the so called squatters for trespass to his land and illegally obtaining payments for the same from the defendant well knowing they were not the owners of the suit land. Otherwise they should have been made parties to the suit from the get go. 20 - These issues are hereby resolved in the negative.

## Issue 7: Whether the Parties are entitled to the remedies sought?

Counsel for the plaintiff submitted that Court declares that the Plaintiff is the Registered proprietor and rightful owner of the land comprised in Mawokota Block 88 Plot 412, 629 and 630 land at Katende Mabuye, as this is confirmed by Certificates of Titles Marked as PE-A1, PE-A2 and PE-A3 and the defendant is a trespasser thereon. That the plaintiff be adequately compensated at the current market value and added Disturbance allowance accordingly.

The plaintiff in this case has only proved that the defendant did not pay for 0.159 acres on Block 88 Plot 412. And as already discussed under issue 1, the defendant committed no fraud nor trespassed on the suit land.

The Plaintiff also prayed for a permanent injunction and an eviction order.

$\mathcal{S}^{\mathcal{I}}$ It is settled law that a permanent injunction is a remedy for preventing wrongs and preserving rights so that by single exercise of equitable power an injury is both restrained and repaired, for the purpose of dispensing complete justice between the parties. Permanent or final injunctions are granted as a remedy against an

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infringement or violation which has been proven at trial. Such an injunction will be granted to prevent ongoing or future infringement or violations. (see: Akena & Ors v. Opwonya (Civil Appeal 35 of 2016) [2018]).

By taking over the suit land and evicting the plaintiff without following the due process and legalities of compulsory acquisition of land, the 3'd defendant $\mathsf{S}$ threatened the plaintiffs quite possession and enjoyment of the land and they are therefore entitled to the equitable relief of a permanent injunction'

Having found that the defendant is not a trespasser on the suit land I am unable to grant these prayers.

## General Damages; $10$

Counsel for the plaintiff cited the case of **Kibuka Alphonse and Niogera Zabeti v.** Mukasa Charles Civil Appeal No. 32 of 2019 Justice Oyuko Anthony Ojok relied on the case of **Stroms v. Hutchinson (1905) A. C 515** where Court held that,

"General damages are such as the law will presume to be the natural and" probable consequence of the act complained of."

And, in the case of Stanbic Bank Uganda Limited v. Hajji Yahaya Sekalega T/A Sekalega Enterprises HCCS No. 185 of 2009, it was held at Page 7 & 8 that;

"it is trite law that, Measurement of the quantum of damages is a matter for the discretion of the individual Judge which of course has to be exercised judicially with general conditions prevailing in the country and prior decisions that are relevant to the case in question...... This Court is also aware that, in assessment of the quantum of damages, courts are mainly guided by the value of the subject matter, the economic inconvenience that a party may have been put through and the nature and extent of the breach or injury suffered.....and that a plaintiff who suffers damage due to the wrongful act of the Defendant must be put in the position he or she would have been if she or he had not suffered the wrong...... and in estimating the loss, Court has to consider the means of remedying the inconvenience caused by the non-performance of the contract that exist at the time~ S.61(4) Contracts Act."

Counsel for the plaintiff submitted that in the instant case, the Plaintiff has suffered financial injury and loss of the value of the suit land, the Defendant having failed to follow known standards in compensating project affected persons ended up paying unknown people on the l'laintiff's land who are neither lawful or bonafide occupants, the Defendant further taking 81 Decimals on Plot 412 and 8 Decimals on Plot 629 way in excess of what the Defendant Compensated for. That the

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Defendant's Act of holding onto the Plaintiff's Title on Block 88 Plot 629 since 2018 to date (7 years) without returning the same has caused the Plaintiff great inconvenience. That it is only fair that the Plaintiff recovers such general damages to put him back to an original position had the Defendant or its agents not violated the Plaintiff's rights and breached its known obligations in Compulsory land

acquisition matters like the instant case.

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Counsel prayed that Court uses its discretion to grant general damages of **UGX** 800,000,000/= Uganda Shillings Eight Hundred Million Only) or as the Court deems fit since the Plaintiff is still losing money as a result of the Defendant's failure to uphold known standards.

Counsel for the defendant on the other hand submitted that the plaintiff did not challenge the 30% he was told he would be paid but has decided to take advantage of the fact that he did not give the defendant consent to institute this suit. That why did he not claim 100% compensation upon disclosure? Counsel added that the title

- to Plot 412 was returned and Plot 629 was never in contention because the plaintiff 15 never pleaded any facts relating to it. As such, the plaintiff was compensated for all his land and has not suffered any damage or loss. And that in case court find fault on the part of the defendant then an award of nominal damages would be fair. - 20 The **Black's Law Dictionary 9th Edition at page 445**, defines damages as the sum money which a person wronged is entitled to receive front the wrong doer as compensation for the wrong. Damages are the direct probable consequence of the act complained of. (See: Storms versus Hutchison (1905) AC 515)

In the case of Assist (U) Ltd. V. Italian Asphalt and Haulage & Another, HCCS No. **1291 of 1999 at 35,** it was held that; $25$

> "The consequences could be loss of profit, physical inconvenience mental distress, pain and suffering."

In the case of Luzinda v. Ssekamatte & 3 Others (Civil suit '2017 /366 120201 **UGHCCD 20 (13 March 2020)**, it was held that, it is trite law that general damages be awarded in the discretion of court. Damages are awarded to compensate the aggrieved, fairly for the inconveniences accrued as a result of the actions of the defendant.

In the instant case this court has found that the plaintiff is only entitled for compensation of $0.15922722$ and $0.1292722$ compensation of 0.159 acres on Block 88 Plot 412 which the plaintiff did not pay for but acquired. The plaintiff was therefore deprived of a portion his land that the defendant took and began construction works on. He was therefore

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inconvenienced in a number of ways and also had to take legal action. As such I find UGX 5,000,000/= is justifiable as general damages in the instant case.

## **Interest**

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The Plaintiff prayed for interest at commercial rate of 23% P.a on general damages from the date of the cause of action until full payment.

Under Section 26(1) of the Civil Procedure Act Cap 71, where interest is not agreed upon by the parties, Court should award interest that is just and reasonable.

Counsel for the defendant submitted that the prayer for interest is a misconceived one. That the plaintiff was paid 30% prior to acquisition of the land in question. That interest is a standard compensation for the loss of use of money however, in the instant case there has been no loss whatsoever occasioned to the plaintiff. That the plaintiff retained its land and utilized the same until payment was effected.

Further, that the plaintiff was awarded disturbance allowance of 30% on each plot of land affected and this was compensation for any inconvenience caused. This in essence caters for all damages and interest claimable under compulsory acquisition of land. As such the plaintiff is not entitled to interest.

**Section 26** of the civil procedure Act provides for an award of interest that is just and reasonable. In the case of Kakubhai Mohanlal v. Wan'd Telecom Uganda HCCS No. 224 of 2011, Court held that; " A just and reasonable interest rale, in my view, is one that would keep the awarded amount cushioned against the ever rising inflation and drastic depreciation of the currency.

A plaintiff ought to be entitled to such a rate of interest as would not neglect the prevailing economic value of money, but at the same time one which would insulate him or her against any economic vagaries and the inflation and depreciation of the currency in the event that the money awarded is not promptly paid when it falls due The plaintiff is hereby awarded interest at a rate of 6% p.a on the general damages from the date of filing the suit until payment in full.

## **Costs**

Under Section 27 (1&2) of the Civil Procedure Act Cap 71, it is provided that costs must follow the events and are awarded at the discretion of Court.

I am inclined not to award costs in the instant case since it is a matter that involves compulsory acquisition of land. It will be unfair to condemn the plaintiff in costs since the suit partly succeeded and partly failed.

This suit succeeds in part and judgment is hereby entered in the following terms;

- 1. The plaintiff shall be paid for 0.159 acres on Block 88 Plot 412 at the current market value as at the time of delivery of this judgment. - 2. And the said amount in (1) above shall be paid at an interest rate of 6% p.a from the date of delivery this judgment till payment in full. - 3. The plaintiff shall be paid UGX 5,000,000/ $=$ as general damages at interest rate of 6% p.a from the date of filing this suit until payment in full. - 4. Each party shall bear their own costs. - I so order. $10$ Right of appeal explained.

**OYUKO ANTHONY OJOK** 15 **JUDGE** 21/10/2024

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