Nalongo Estates Limited v Kampala Capital City Authority and Another (Miscellaneous Application 309 of 2023) [2023] UGHCLD 243 (14 August 2023)

Full Case Text

### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

### (LAND DIVISION)

## **MISCELLANEUS APPLICATION NO.0309 OF 2023**

### (Arising from Originating Summons No.0005 of 2020)

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NALONGO ESTATES LIMITED: APPLICANT

#### **VERSUS**

1. KAMPALA CAPITAL CITY AUTHORITY

2. UGANDA NATIONAL ROADS AUTHORITY::::::::::::::::::::::::::::::::::::

Before: Lady Justice Alexandra Nkonge Rugadya. 10

#### Ruling.

This application brought under Section 33 of the Judicature Act cap. 13, Sections 34 & 98 of the Civil Procedure Act cap. 71, and Order 52 rules 1 & 3 of the Civil Procedure Rules SI 71-1 seeks the following orders;

- 1. A declaration that the court orders issued in Originating Summons 15 N.0005 of 2020 have not been complied with on account of: - The $1st$ respondent's refusal to extend the applicant's lease for $i)$ land comprised in LRV 4211 Folio 15 plot 5 Park lane & LRV 4211 Folio 14 Plot 96A-100A Kitante Road, and grant a lease to land comprised in LRV 2825 Folio 1 plot 34E-38E Jinja Road. - The $2^{\rm nd}$ respondent's refusal to cause the conduct of a joint survey ii) on the above mentioned land to determine the area to be affected by the Kampala Flyover project. - The $2^{nd}$ respondent's refusal to cause the conduct of a proper iii) valuation assessment to enable compensation for the applicant's land and developments.

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- 2. A declaration that the $2^{\scriptscriptstyle \text{nd}}$ respondent's valuation assessment issued on $9^{\rm th}$ December 2022 by its project consultants m/s Nippon Koei was in contravention of the court orders in Originating Summons No.005 of 2020 and further order to set it aside. - 3. An order directing the $2^{nd}$ respondent to conduct the joint survey and proper valuation on the applicant's land and developments in accordance with the orders issued in Originating Summons No.0005 of 2020. - 4. An order restraining the $2^{nd}$ respondent and/or agents from effecting any compensation payments under the impugned valuation assessment $% \left( \mathcal{L}\right)$ report dated 9th December 2022. - 5. A declaration that the respondents are by their non-compliant conduct in further contempt of court orders issued in Originating Summons No.0005 of 2020.

# 6. Costs of the application be provided for.

Grounds of the application. 20

The grounds upon which this application is premised are contained in the affidavit in reply deponed by Ms. Sarah Kizito, the managing director of the applicant company.

Briefly, that on 4th June 2021, this court issued an order in **Originating Summons** No.0005 of 2020 that the applicant had an interest in land comprised in LRV 4211 Folio 15 plot 5 Park Lane, LRV 4211 Folio 14 plot 96A – 100A, and LRV 2825 25 Folio 1 plot 34E -38E Jinja road (hereinafter referred to as the 'suit land'), which is affected by the construction of the Kampala Flyover project that is being implemented by the $2^{nd}$ respondent.

That in order to ensure the most cost efficient and smooth implementation of the 30 said project, this court ordered a joint survey of the land by the applicant and 2nd respondent so as to establish the land area needed by the project, and that a valuation of the land and buildings be conducted by the $2^{nd}$ respondent so as to determine the appropriate compensation due to the applicant.

2 Julatz

$\mathsf{S}$

That while court ordered the immediate extension of the applicant's lease in respect of land comprised in *LRV 4211 Folio 15 plot 5 Park Lane*, court also ordered that the renewal and extension of the applicant's leases in respect of the suit land affected by the project would be contingent upon the determination of the area of the land required for the project.

That the applicant was compelled to filed *Miscellaneous Application No.1923 of* 2021 against the 1st respondent for contempt of court orders owing to the 1st respondent's refusal to renew or extend the said leases, and the deponent citing an excerpt of this court's ruling dated 27th July 2021 stated that the respondents have continued to ignore and disregard the directives of this court.

The respondent is in further contempt of the orders of this court as the 2nd respondent has relied on an old survey made in 2017 to unilaterally decide that it needs 5.85 acres for the project out of the 7 acres available.

- That the $2^{nd}$ respondent has gone ahead to order *M/s Nippon Koei*, its project consultant to unilaterally conduct a valuation assessment for only the applicant's 15 developments on the land to be only *Ugx.* 3,730,022,056/=, and is now threatening to deposit the above sums in court as full compensation yet the applicant objects to the valuation assessment for being inadequate, and in contravention of the orders of this court in **Originating Summons No.0005 of 2020.** - That in the absence of joint survey, and a proper valuation by the parties, the $20$ applicant engaged *M/s Terrain Consultants* and *M/s EDI Management* to conduct a comparative survey and valuation which show that because there is a very big discrepancy in the land area said to be required for the project as well as the compensation values returned by the $2^{nd}$ respondent's consultants compared to the - applicant's, the same shall cause irreparable loss and damage to the applicant if it $25$ is allowed.

the respondents have continuously frustrated.

Additionally, that while there is an urgent need to harmonize the land survey and compensation valuation under the direction of this court in order to avoid any delays to the implementation of the Kampala Flyover project, the applicant has always offered its cooperation to ensure that the orders of this court are complied with which

$\mathsf{S}$

3 Onlots

That any delay that the implementation of the Kampala Fly over project may suffer as a result of any failure to resolve the applicant's compensation claims is to be blamed on the respondents.

Further, that because the above developments raise questions relating to the execution, discharge, and satisfaction of the decree in **Originating Summons** $\mathsf{S}$ **No.0005 of 2020** which ought to be determined by this court, this application is urgent as it is necessary to quickly resolve the impasse over the applicant's compensation so that the Kampala Flyover project can be implemented smoothly thus it is equitable, and in the interest that this application is granted

#### 10 1st respondent's reply.

The 1st respondent filed an affidavit in opposition to the application. In their reply, Mr. Nathan Asanasio Kasule, an officer of the 1st respondent assigned the duties of Manager Land Management Unit stated inter alia that the 1st respondent is the registered proprietor of the suit land comprised in FRV 922 Folio 18 (formerly LRV 4211 Folio 14 plot 96A - 100A Kitante road) (Yusuf Lule road) Kampala with the user as private recreation facility, FRV 992 Folio 17 (formerly LRV 4211 Folio 15 plot 5 Park Lane Kampala with the user as private recreational facility, and LRV 2825 Folio 1 plot 34E -38E Jinja road Kampala (centenary park) with the user as public open space.

That by a written agreement dated 16th May 2006, the 1st respondent granted the 20 plaintiff rights to develop, manage, control, maintain LRV 2825 Folio 1 plot 34E -38E Jinja road Kampala (centenary park) and transform it into a modern recreational park for a term of 10 (ten) years, while it also sub leased the land comprised in FRV 922 Folio 18 (formerly LRV 4211 Folio 14 plot 96A - 100A Kitante road) (Yusuf Lule road) Kampala and FRV 992 Folio 17 (formerly LRV 25 4211 Folio 15 plot 5 Park Lane Kampala to the applicant for a term of five years from 18th April 2011, extendable for a maximum forty-nine years, with the user being private recreational facility, not public open space.

That owing to issues that developed with another developer in the neighbourhood, during the subsistence of the management agreement, a memorandum of 30 understanding dated 4th December 2008 between the applicant, 1st respondent and a third party caused the amendment of the management agreement, reducing the acreage under the applicant's management from 5.32 hectares to 3.130 hectares and alteration of numbering of the plots to read 34E - 38E Jinja road.

That the other salient features of the said agreement are that the applicant was supposed to submit new plans for any structures erected on **plot 34E - 38E** for approval by the now defunct Kampala City Council as construction was supposed to be according to the approved plans, and that the park was to remain a green open space with unlimited access to the public.

$\mathsf{S}$

That there were numerous violations of the management agreement including the fact that the applicant had no approved plans, which was confirmed by the 1st respondent's directorate of Physical planning made on 17th April, 2nd March, & 5th March 2012.

That at the Extra Ordinary Contract's Committee meeting of the 1st defendant 10 convened on 27th April 2012, the committee approved and recommended termination of the management agreement pursuant to *clause 10* of the Management Agreement of 16th April 2006 between the City Council and the applicant herein, and that on 26th April 2012, the applicant was served with the notice of termination but the applicant subsequently re-entered the suit land. 15

That the applicant upon invoking provision 9 of the Memorandum of Understanding which amended the management agreement that provided arbitration in the event of any disputes filed Arbitration Cause No.27 of 2012 Nalongo Estates Ltd vs KCCA and that the arbitration award therefrom was delivered on 13th September 2013.

- That in its award, court found that first and foremost, there was no evidence that the 20 applicant submitted plans for approval in respect of the suit land before 2011; secondly, that the reports of inspection teams that visited Centenary Park on 3 occasions in 2012 found that there were structures and activities at the park which were contrary to the terms of the management agreement made between the parties $25$ - in 2006; third, that the applicant herein undertook to abide by the terms as amended, and not to act as it wished, outside the agreement; fourth, that the contract provided that $plots 34E - 38E$ had to be open spaces with green coverage, not constructed with structures that are not allowed by law or approved by the 1st respondent as per the management agreement; fifth, that the applicant should keep - the green belt green, and not construct therein any structures not authorised by law, 30 or approved by the 1st respondent as per the management agreement; and finally, the 1st respondent was then awarded costs of the counter claim wherein it sought to have the Centenary Park restored to its previous state of being a green belt at the plaintiff's cost.

$\mathsf{S}$

What

That the applicant has to date failed to do as was ordered in arbitral award, and has continued to maintain unauthorized structures on the suit land.

That while the applicant upon expiry of the initial term of the subleases applied to the 1st respondent to renew the same, and also applied for a lease on *plot 34E – 38E*

Jinja Road Kampala (LRV 2825 Folio 1 Jinja road Kampala (centenary park), $\mathsf{S}$ the $1^{st}$ respondent's Contracts Committee approved the same in a meeting held on 17th May 2017 under *Minute No.* 5/47.3/17.

That the parcels of land described were to be affected by government of Uganda infrastructure and utility projects the Kampala Flyover Project being implemented the Uganda National Roads Authority; the Lake Victoria Protection II – Construction and Operation of the Nakivubo Waste Water Treatment Plant by National Water Sewerage Corporation; as well as the Electricity Sub-station by UMEME.

That before the renewal and issuance of leases could be effected, the 1st respondent threatened to evict the applicant upon expiry of the leases, and the management contract but the applicant petitioned several offices over the same, and the 15 government projects that culminated into a meeting convened and presided over by the President of Uganda on 7th July 2017 which was aimed at exploring amicable resolution of the dispute between the parties.

That the President directed that the government which must be given priority should proceed to implementation unimpeded; secondly, that the applicant who has an 20 undisputed equitable interest in the land herein be recognized as such, the subleases be extended, and that the applicant be allowed to temporarily continue in occupation of plot 34E – 38E Jinja Road Kampala comprised LRV 2825 Folio 1 Jinja road **Kampala centenary park** with a user as an open space until implementation of the $25$ said government projects.

That in a meeting convened by the then Minister for Kampala and Metropolitan affairs on 2nd July 2019, the Attorney General was tasked to draft a memorandum of understanding to ensure implementation of the presidential directives and on 19th March 2020, the said memorandum of understanding was signed on the parties, and a copy of the same was forwarded to the Attorney General for witnessing but the same has never been witnessed by the Attorney General, nor has it since been returned

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That under **clauses 2 & 3** of the memorandum, the $1^{st}$ respondent was to grant the applicant, and effect the registration of the extension of the sublease in respect of land comprised in Plot 5 park lane Kampala (comprised in FRV 992 Plot 17 *formerly LRV 4211 Folio 15)* which is not affected by the government projects, and

handover the certificates of title before the implementation of the said projects; and $\mathsf{S}$ secondly, the 1st respondent was to immediately grant the applicant, and effect registration of the extension of the sublease over *Plot 96A – 100A Kitante Road* (Yusuf Lule road) formerly comprised in LRV 4211 Folio 14 for purposes of enabling the applicant to replace the affected building and other developments which shall be demolished to pave way for the flyover. $10$

That the grant of the said leases under the memorandum of understanding was conditional upon completion of the process of ascertaining and curving of the land to be affected by government projects since clause 2 of the memorandum provided for the grant of land which is not affected by the government projects.

That the applicants then filed **Originating Summons No.0005 of 2020** for 15 determination of matters arising out of the memorandum of understanding.

### $2^{nd}$ respondent's reply.

$20$

The $2nd$ respondent also filed an affidavit in reply opposing the application deponed by Ms. Juliet Oyellah Okwir, the head of the Land Acquisition Department under the Directorate of Roads and bridges Development at UNRA, and the supervising Valuer for the Kampala Fly over project.

She stated that while the $2^{nd}$ respondent is a government agency charged with the mandate of constructing and maintaining the national road network, it intends to commence phase 2 of the Kampala Flyover project and that for purposes of fulfilling its mandate, the $2^{nd}$ respondent is required to compulsorily acquire tracts of land 25 from land owners, and compensate property owners for buildings, crops or any other properties affected by the projects.

That the 2nd respondent identified the land comprised in **FRV 922 Folio 18 plots** 96A - 100A Kitante Road and LRV 2825 Folio 1 plot 34E - 38E Jinja Road as property to be affected by the said project, and that while the applicant and the 1st 30 respondent entered into a memorandum of understanding in respect of among other the aforementioned properties affected by the project, the applicant also filed Originating Summons No.0005 of 2020 seeking court's interpretation of the same.

Whoof! That on 4th June 2021 this court delivered its ruling interpreting the said MOU, placing obligations on the $2^{nd}$ respondent who in compliance with the directives of court, and in accordance with the Land Acquisition Act embarked on the process of survey, assessment, and valuation of the land, as well as the properties affected by the government project.

$\mathsf{S}$

That the respondent established that the total acreage of land required for the project is approximately 5.23 acres with **plot 96A – 100A** being affected by 0.53 acres, while **plot** $34E - 38E$ which is the open public space where the applicant herein had a management contract being affected by 4.685 acres.

That while the $2^{nd}$ respondent assessed the developments on the land which were 10 valued at *Ugx*. 3,730,022,056/= (*Uganda Shillings three billion seven hundred* thirty million, twenty – two thousand fifty-six only), it also returned a zero value because the applicant's lease on *plot 96A – 100A* expired in April 2016, and has not been renewed to-date while *plot 34E – 38E* is still public land since the applicant's 15 management agreement expired.

In addition, that this court's interpretation of the MOU was to the effect that while the applicant had an interest in the land, the $2^{nd}$ respondent was unable to place any value on the land in the absence of a lease/freehold title or any other interest recognizable as a form of land ownership.

That by virtue of the deponent's training, and practice, it is within her knowledge $20$ that the assessment of value for land is premised on tenure held by the land owner, and in the case of leases, the value is based on the duration of the unexpired lease.

That the $2^{nd}$ respondent's consultant by a letter served on the applicant on 16th December, 2022 disclosed to the applicant, the land required for the project, as well

as the sum approved for payment of the same by the Chief Government Valuer for $25$ payment, and also requested the applicant to submit the relevant documents to enable the $2^{nd}$ respondent process the payment.

That because the applicant did not respond, the $2^{nd}$ respondent by letter dated 17th January 2022 reminded the applicant of the need to expedite the submission of the requested documents and that the applicant by letter dated 30th January 2022 30 rejected the compensation award, and declined to provide the documents requested for.

Nutors.

That because compensation for land is premised on the nature of interest in the land, and in the absence of fresh leases issued in favour of the applicant by the 1st respondent, it remains unclear what interest the 2nd respondent will pay for, and what title it should expect in return for the money paid to the applicant.

- Further, that it is also true that the ruling of this court was to the effect that the 1st $\mathsf{S}$ respondent would enter into lease agreements with the applicant for the residue after the land required for the project has been curved out casts doubt as to what interest the $2^{nd}$ respondent would be acquiring, and yet that under paragraph 11 of the conclusions of this court the respondent was directed to handover to the applicant a - certificate of title to the suit land but neither the $2^{nd}$ respondent nor the applicant 10 has certificate of title of the suit land.

That according to *paragraph 4* of this court's ruling, the joint survey complained of was supposed to be agreed upon by the parties but no effort has been made by the applicant to initiate the process and in the absence of such initiative, the 2nd respondent conducted a survey, and clearly marked off the area to be affected by the project, and communicated the same to the applicant.

## Applicant's rejoinder to the 1st respondent's affidavit in reply.

The applicant filed an affidavit in rejoinder to the averments set out in the 1st respondent's affidavit in reply. It was deponed by Ms. Sarah Kizito, the applicant's Managing Director.

She claimed that the affidavit in reply was tainted with material falsehoods, and that the 1st respondent in its affidavit in reply admitted at *paragraph 15* that the applicant indeed has a lease interest in the suit land.

That the 1st respondent's failure to deny or respond to the applicant's averments in 25 paragraphs 4 (ii) & 9 of the affidavit in support on its failure to value both the land and the developments thereon as directed by court is not only an admission, but also proves the veracity of the applicant's case while the 1st respondent's failure to challenge the veracity of the applicant's survey and valuation report also constitutes an admission, and further proves applicant's case. Thus court ought to rely on the said reports to order the true value of the land and developments which the 30

respondents failed to do.

That the contents of *paragraphs* $4,5,6,7,8,9,10,11,12$ , & 13 of the affidavit in reply are not connected with the questions of law and fact raised in this application since

Outset?

the 1st respondent deliberated on the history of the dispute before the institution of Originating Summons No.05 of 2021 yet the applicant seeks to review the irregular manner in which the respondents executed the ruling, and that because the issues raised in paragraphs 14, 15, 16, 17, 18, 19, 20, 23 & 24 were conclusively determined by this court in its ruling, the same cannot be revisited in this application.

Additionally, the deponent in reply to paragraphs 21, 22, 26, 27, 28, 29, 30, 31, 32, & 33 of the affidavit in reply stated that the $1^{st}$ respondent's obligation to renew the applicant's lease or issue lease titles depends entirely on this court's ruling in

**Originating Summons No.0005 of 2022** not the MOU which the $1st$ respondent 10 relies on since the same was not executed by the Attorney General, and that both the applicant and its lawyers wrote letters reminding the 1st respondent to renew its leases, in addition to the ruling of this court in *Miscellaneous Application No.1923* of 2021 wherein the respondent was found to be in contempt of court's orders when it failed to renew the applicant's leases. 15

That after filing its application for renewal, the applicant requested the 1st respondent's agents to avail it with payment advice so as to pay the ground rent of the leases but the same was ignored thus the applicant cannot be faulted for the norenewal of the leases which was as a result of the 1st respondent's continued disobedience of the orders of this court in Originating Summons No.005 of 2021

and Miscellaneous Application No.1923 of 2021.

$\mathsf{S}$

$20$

Further, that the 1st respondent not only unilaterally conducted a survey and valuation of the suit property without involving the applicant's agents but also disregarded the assessment of the suit land computing the compensation award which actions contravened the orders of this court in *Originating Summons No.005* of 2021 & Miscellaneous Application No. 1923 of 2021.

That this application has merit as it exposes the 1st respondent's dilatory, and malafide conduct in execution of this court's orders pronounced in **Originating** Summons No.005 of 2021 & Miscellaneous Application No.1923 of 2021, which orders are not illegalities, and ought to be implemented by the 1st respondent.

## Applicant's rejoinder to the $2^{nd}$ respondent's affidavit in reply.

The applicant also filed an affidavit in rejoinder to the 2nd respondent's affidavit in reply, deponed by Ms. Sarah Kizito. She stated inter alia, that while the contents of

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paragraphs 1, 2, & 3 of the $2^{nd}$ respondent's affidavit in reply are denied, the said affidavit is tainted with material falsehoods, and that failure to challenge the veracity of the applicant's survey and valuation report also constitutes an admission, and further proves applicant's case thus court ought to rely on the said reports to order the true value of the land and developments which the respondents failed to do.

In reply to paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, & 22, the deponent stated that this court at page 12 of its ruling recognized the applicant's interest in the suit land but the $2^{nd}$ respondent's agents & servants in contempt of the orders of this court vide **Originating Summons No.005 of 2021 &**

Miscellaneous Application No. 1923 of 2021 unilaterally valued the developments 10 on the suit land instead of conducting a joint survey and valuation.

That while the 2nd respondents who did not survey the suit land as instructed by this court used an old survey report of 2017, it also failed to challenge the applicant's survey report to wit **annexure 'AB6';** and that the said failure is an admission to the veracity of its contents thus the findings ought to be relied on by court since it shows both the land and buildings to be affected by the land acquisition projects.

That while the compensation award of *Ugx.* 3,730,022,056/= (*Uganda Shillings* three billion seven hundred thirty million, twenty - two thousand fifty-six

- only) was made illegally and in contravention of the aforementioned orders of this court since the $2^{nd}$ respondent which was not even the entity mandated to conduct $20$ a valuation of the land hired an independent contractor who valued only the developments on the land, the applicant conducted a valuation of both the land and the developments on the land as per Annexure 'AB7' in accordance with the directives of this court and since none of the applicants objected to the veracity of $25$ - the valuation reports in their respective affidavits in reply, it is an implied admission of the contents thereof.

That while the 1st respondent in paragraph 15 of its affidavit in reply admitted that it renewed the applicant's lease application, this court also found that the applicant acquired an interest in the suit land owing to the renewal of its lease under the lease minutes issued by the applicant in 2017.

In addition, that because the compensation assessment issued by the $2^{nd}$ respondent's agents contravenes principle 2 of the Guidelines for Compensation Assessment under Land Acquisition issued by the Ministry of Land on Valuation of both land and developments, the valuation of the suit land ought to be assessed

Geology 11

$\mathsf{S}$

according to court's judgment, not the beliefs or work experience of the 2nd respondent's agents and servants and because the $2^{nd}$ respondent in its affidavit in reply failed to unequivocally respond to paragraphs 4 (ii) & 9 of the affidavit in support on its defiance to value both the land and its developments.

- $\mathsf{S}$ Further, that the applicant lawfully refused to be paid the impugned compensation award assessed by the $2nd$ respondent since the same was made in total disobedience of the orders of this court in **Originating Summons No.005 of 2021 &** Miscellaneous Application No.1923 of 2021 yet the compensation for the suit land and the developments was to be based on its equitable interest in the suit land - 10

which was created upon the 1st respondent issuing minutes renewing the applicant's leases

That the respondent's agents never consulted the applicant's agents about their participation in the survey and valuation exercise and completed the exercise, and served the applicant the impugned compensation award, while the 1st respondent

neither created the applicant's lease title nor surrendered the created copies of titles 15 to the applicant's agents despite being ordered to do so by court on two occasions.

## Representation:

The applicant was represented by *M/s Muwema & Co. Advocates & Solicitors*, while the $1^{st}$ and $2^{nd}$ respondents were represented by their respective Directorates of Legal Affairs & Services.

Both sides filed written submissions in support of their respective cases as directed by this court.

## Consideration by court:

I have carefully read the pleadings, evidence and submissions of both counsel, the details of which are on court record, and which I have taken into account in 25 determining the question as to whether or not this application warrants the grant of the prayers sought.

The main issue for determination is whether or not the respondents did not comply with the orders of this court in **Originating Summons No.005 of 2021 &** Miscellaneous Application No. 1923 of 2021.

In the **Originating Summons No.0005 of 2020,** the following orders had been issued by this court:

$1$ lod $12$

- $\,$ 1. Since the acreage required for the Government projects was never specified in the MOU it placed the obligation to determine the acreage required for the project on the implementing agencies, as per clause $7$ . The clause requires the implementing agencies to wit: UNRA and UMEME Ltd to determine the necessary space required for the projects. - 2. A survey shall accordingly be conducted within a period of two weeks from the $\frac{1}{2}$ date of delivery of this decision. - 3. The purpose of the survey would be to identify the part of the suit land to be $\frac{1}{2}$ acquired for the Kampala Flyover project. - 4. The surveyor(s) (to be agreed upon between the parties) shall curve off the area identified for the Kampala Flyover and the residue to be left for the plaintiff. - 5. The survey exercise shall be conducted in the presence of the parties and/or their representatives and the neighbouring developers or their duly authorised representatives. - 15 6. As per Clause 8, upon implementation of the project, the 1st defendant is to hand over to the plaintiff the residue for the certificates of title for plot 34E-38E Jinja road, Kampala (comprised in LRV 2825 Folio 1 Jinja Road Kampala) (Centenary Park) in respect of which a fresh lease is to issue, excluding roads and channel reserves, with the user as public open space and upon such lease conditions as shall be agreed upon. - 7. As per clause 6, it is a mandatory requirement for the plaintiff company to temporarily continue in occupation of Plot 34E-38E with the user as public open space until the implementation of the government projects. - 8. The plaintiff shall get an immediate extension on FRV 992 Folio 17 (formerly LRV 4211 Folio 15, Plot 5 Park Lane Kampala), the property that is not affected by the project. - 9. A lease agreement shall be entered between the 1st defendant and the plaintiff and a certificate of title covering the residue for LRV 4211, Folio 14 Plot 96A-100A, Kintante Road ( area to be determined under the survey) and issued to the plaintiff company by the 1st defendant for a full term lease. - 10. For the avoidance of doubt, the renewal and extension of the leases to the plaintiff for the affected plots shall be contingent upon the implementing agencies determining the necessary space required for the project. - 11. The 2nd defendant is to hand over to the plaintiff certificate of title for the suit land for the residue within a period of two weeks after the survey report

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is filed in court, and before commencement of the implementation of the Government project.

12. The project shall be embarked on after the plaintiff has received fair and adequate compensation from the 2nd defendant for the areas affected by the $\,$ project.

13. Upon receiving compensation for the land and buildings within the area affected by the project, pursuant to clause 14 of the MOU, the $2^{nd}$ defendant shall be required to give the plaintiff written notice of any planned demolition $\label{eq:1} \begin{aligned} \mathcal{L}_{\text{max}} \end{aligned}$ on any part of the suit land.

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- 14. The plaintiff shall thereafter vacate any and all portions of land identified as $\,$ required for the implementation of the project, within the time as may be agreed upon between the plaintiff and the $2^{nd}$ defendant. - 15. A copy of the survey report shall be availed to each party and to court within $\frac{1}{2}$ seven days after completing the survey.

15 **Compensation**

- 1) For avoidance of doubt relevant procedures as spelt out under the Land Acquisition Act for the compulsory acquisition of land shall be applicable, with necessary modifications by parties. - 2) Clause 4 of the MOU is clear and unambiguous. The $1^{st}$ defendant has the obligation to cause the $2^{nd}$ defendant as the implementing agency for the Kampala Flyover to pay all compensation due to the plaintiff for the value of the land and developments likely to be affected by the projects. - 3) The value of the lands, buildings and other developments made on the land by $\frac{1}{2}$ the plaintiff which are likely to be affected by the project shall be determined by the Chief Government Valuer, and the exercise shall be conducted about the same time when the survey is being carried out. - 4) The Chief Government Valuer shall file a valuation report in court within seven days after the exercise of valuation has been conducted; and serve each party with a copy. - 5) In case of any planned development or structure by the plaintiff after the land $\frac{1}{2}$ has been curved off for the Government project, the plaintiff shall (if not already done), present its plans for approval by the $1^{st}$ defendant. - 6) As per its undertaking under clause 9 of the MOU, the plaintiff is not to interfere with the works and activities on the land affected by the project, the $\mathcal{L}$

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plaintiff having consented to allowing such works, the planning and preparatory activities, including the determination of the acreage needed for the flyover project.

$5$

$20$

7) The cost of valuation and survey shall be met by the 2nd defendant, except where each party may wish to engage private valuers/surveyors to oversee the processes, in which case the parties shall meet their respective costs of those services.

## 8) Each party shall meet bear its own costs in this matter.

For emphasis the key aspects to which this application relates have been underlined.

I have also had occasion to study the various correspondences between the parties to this 10 application and their agents during the attempts to have the orders executed. (Ref. AB 3-AB $7)$ .

**AB-3** notification was made to the applicant company about compensation that was to be paid to the company. The office of the Permanent Secretary on 9th December, 2022 registered its approval which however excluded any errors or omissions in that report.

As per letter **AB-4** the 2nd respondent wrote to the applicant on 17th January, 2023 requesting for documents and an urgent response from the company. AB-5 was a response by the applicant's lawyers dated 31st January, 2023 for a joint survey. The said letter was copied to the 1st respondent. **AB-6** is a valuation reviewers report dated 30th January, 2023 on instructions by the applicant.

Several issues in disputing the valuation were raised as highlighted in that report. Amongst these was that the fact that the Chief Government Valuer did not actually carry out the valuation as court had directed. It was instead carried out by the 2nd respondent's project valuer contrary to orders of court. Furthermore, that the survey report relied on for assessing compensation was not agreed upon by the parties, as directed by court.

It contravened **section 5(1) of the Land Acquisition Act** which requires prior notification of the affected persons, so as to agree on the specific area for acquisition and compensation and also to give them an opportunity to raise any objections.

That it even contradicted the area mapped out on the ground as concrete pillars, which had been requested for by the 2nd respondent as per the cadastral survey. In addition, the 30 assessment did not take into account the fact that the lease term for the applicant was extended to full term as per the KCCA Minute in 2017, which fact was not in dispute.

The full estimated sum for compensation was therefore according to them, *Ugx 18,874,560*, $000/-$ .

(Jelout)

## Decision of court:

I have considered the pleadings and submissions by both sides which I need not repeat here.

# Liability of the 2nd respondent (UNRA):

It is not in dispute that the orders for survey were to be conducted within a period of two $\mathsf{S}$ weeks from the date of delivery of the decision, to identify the part of the suit land to be acquired for the Kampala Flyover project. The surveyor(s) were to be agreed upon between the parties.

The objective of the survey exercise, which was to be conducted in the presence of the parties

- and/or their representatives and the neighbouring developers or their duly authorised $10$ representatives was intended to curve off the area identified for the Kampala Flyover and the residue to be left for the applicant/plaintiff. The presence of parties as correctly pointed out by the applicant, is also a requirement under Land Acquisition Act. - The directives by court were also clear that the cost of valuation and survey were to be met by the $2^{nd}$ defendant, except where each party may wish to engage private valuers/surveyors 15 to oversee the processes, in which case the parties were to meet the respective costs of those services. The emphasis is that this was meant to be a joint survey exercise.

The assessment of compensation by the 2nd respondent was based only on the developments on the land, ignoring the fact that the lease had as early as 2017 been extended to full term.

The argument by the $2^{nd}$ respondent therefore that there was no running lease to ascertain 20 nature of interest was misleading as it not only failed to appreciate court's directives but also failed to take into consideration the fact that a decision to that effect had in any case already been made by the 1st respondent in 2017.

Also noted was the fact that the applicant decided to engage the firm of *M/s Terrain Consult*, which was a clear departure from what court had intended and it is for those reasons that $25$ the valuation by both the $2^{nd}$ respondent and the applicant cannot be accepted.

## Liability of the 1st respondent (KCCA):

For the KCCA the orders were that a lease agreement was to be entered between the 1st defendant and the plaintiff/applicant and a certificate of title issued, covering the residue

## for LRV 4211, Folio 14 Plot 96A-100A, Kintante Road.

The area was to be determined under the survey by a firm to be agreed upon and certificate issued to the plaintiff company by the KCCA, the 1st defendant for a full term lease.

Orpoz

In a ruling dated 27th July, 2023 following an application for contempt of its orders, vide: MA No. 1923 of 2021 Nalongo Estates Ltd vs Dorothy Kisaka & Anor, this very court had this to say:

This court is vested with powers under section 33 of the Judicature Act, Cap. 13, to make the necessary orders as it thinks fit in respect of any matter, legal or equitable so that as far as possible all matters in controversy between the parties may be completely and finally determined, so that all multiplicities of legal proceedings concerning those matters are avoided.

The above section particularly applies where an illegality or irregularity that concerns a disobedience of court order has been duly brought to court's attention, which would override all manner of pleadings, including any admissions which may have been made. (Makula International Ltd vs H. E Cardinal Nsubuga & Anor CA No. 4 of 1981).

In light of the above, an order of this court is made directing the respondents $\,$ to liaise with the implementing agencies to conduct the survey of the suit property in execution of the orders of court made vide: OS No. 0005 of 2020 and present a report to court on the execution of its orders, within 45 days after the delivery of this ruling.

The period of disobedience of this court order will start counting after 45 days.

## Parties to meet their own costs.

As noted, a report to court on the execution of its orders, was to be made within 45 days after the delivery of that ruling after which the period of disobedience would start counting. The said orders were however not complied with by the implementing agency.

25 It is now settled law that for an order of contempt of court to be issued it must be established that there is a lawful court order and the potential contemnor must have been aware of the court order and failed to comply with the order. (See: . Megha Industries Ltd vs. Conform Uganda Ltd HCMC NO. 21 of 2014.)

A party who fails to comply with a court order without proper explanation does so at 30 his/her own peril. Whether unclear, null or irregular a party, it cannot afford or be permitted to disobey an order for as long as it remains undischarged.

The party cannot be permitted to disobey the order by reason of what it party regards the order to be. (see also: Attorney General vs Kiruhura District Local Government & 2 others HCMA No. 35 of 2012; Mutambo Wepukhulu vs. Wasswa Balunywa and 2 Others Miscellaneous Application 276/2012). The order must be complied with in

Nator 37

$20$

$\mathsf{S}$

totality, in all circumstances by the party concerned subject to the party's right to challenge the order in issue. The orders of this court were never challenged, reviewed or discharged by the respondents in this application.

With all due respect to the respondents in this case litigation must come to an end. Any court should concern itself about a court process that would cause unnecessary delays in $\mathsf{S}$ implementing a Government project.

In reiteration of what was held in the previous ruling it was evident at the time that the respondents could not have issued either the extension of the lease in respect of the suit properties as well as the certificates of title before the implementing agencies of the respective

Government projects had first and foremost conducted the joint survey and identified the $10$ affected land and availing the same for creation of certificates of title for the residue plots which the applicant claims.

Indeed, the residue of LRV 4211 Folio14, plot 96A-100A Kitante Road and LRV 2825 Folio 1 plot 34E-38E Jinja Road was contingent on certain actions which, according to the 1st respondent were frustrated by the applicant.

That argument seemed to ignore the fact that each party to the MOU and under the originating summons had a specific role to accomplish, with the initial step being a survey. There was no indication that the 1st respondent ever made any attempt to have the orders of court executed, even after the ruling on contempt of court was made vide: MA No. 1923 of

#### 20 2021 Nalongo Estates Ltd vs Dorothy Kisaka & Anor.

Court further noted at that time that there was no clear indication that any of the respondents had deliberately refused to obey the orders of this court since the due performance of their own part was contingent upon UNRA's fulfillment of its own obligations and mandate under the MOU and the ensuing orders of this court.

Following that ruling, this time there is clear evidence that the respondents' conduct in the 25 blame game regarding matters that had already been concluded by this court demonstrated that they had no intention of obeying this court's orders.

For the 2nd respondent the failure to involve affected parties in the survey, for whatever reason it may have had (which reasons were never drawn to attention of court until after this application was filed), was not only in violation of the law but also an attempt to circumvent

30 the undischarged orders of this court, which cannot acts were inexcusable.

The responsibility falls on the shoulders of that party concerned, in case for some genuine reason it finds compliance with the court order not possible, to appropriately move court issuing the order and bring to the attention of the court the reasons for non-compliance.

$\mathbb{R}$

I have already made it clear that the respondents had the obligation and owed the applicant a duty of care to ensure fulfillment of the obligations as spelt out under the MOU. As the lease owners of the property in issue and parties to the orders, and with all the legal and institutional machinery and resources at their disposal, no court of justice can in those circumstances allow an agency to disregard its orders.

In light of those findings and conclusions, this application is granted in the terms below:

- 1. The $1^{st}$ respondent's obligation to renew the applicant's lease or issue lease titles depends entirely on this court's ruling in Originating Summons No.0005 of 2022 but not the M. O. U. - 2. By its refusal to extend the applicant's lease for land comprised in LRV 4211 Folio 15 plot 5 Park lane & LRV 4211 Folio 14 Plot 96A-100A Kitante Road, and grant a lease to land comprised in LRV 2825 Folio 1 plot 34E-38E Jinja Road, the $1^{st}$ respondent has defied the orders of court issued in Originating Summons No.0005 of 2020. - 3. The $2^{nd}$ respondent's refusal to cause the conduct of a joint survey on the above mentioned land to determine the area to be affected by the Kampala Flyover project is in violation of this court's orders. - 4. The $2^{nd}$ respondent's valuation assessment issued on $9^{th}$ December, 2022 by its project consultants M/s Nippon Koei contravened the court orders in Originating Summons No.005 of 2020. - 5. The $2^{nd}$ respondent was not the entity mandated to conduct a valuation of the land. Its project consultants valued only the developments and excluded the value of the land. - Accordingly, the assessment that was made by the said consultants 30 is set aside as it was conducted contrary to the orders of this court. - 6. The applicant company is accordingly awarded Ugx 70,000,000/= against the 1st respondent; and Ugx 30,000,000/= as punitive damages against the $2^{nd}$ respondent on account of their violation of this court's orders.

(Jehang

$10$

$\mathsf{S}$

7. Interest of 15% p.a is awarded to the applicant company payable from the date of delivery of this ruling till payment in full.

### **Further orders of court:**

- $1.$ The parties herein are directed to conduct the joint survey and proper valuation on the applicant's land and developments in accordance with the orders issued in Originating Summons No.0005 of 2020, (subject to some variations as made by this court.) - $2.$ The surveyor is to be appointed by court and the exercise carried out in the presence of all the affected parties, who may engage their own surveyors and at their own cost, to oversee the exercise. - $\overline{3.}$ For the purpose of computing fair and adequate compensation, a proper valuation/assessment is to be made the office of the Chief Government Valuer in respect of both the land and the developments thereon, based on the fact that the applicant company has been the sitting and waiting tenant, holding a full term lease since 2017. As such the delay in granting the lease cannot be attributed to the applicant. - $4.$ As per clause 6 of the M. O. U, it is a mandatory requirement for the plaintiff company to continue in occupation of Plot 34E-38E with the user as public open space until the implementation of the government project; and in computing a fair and adequate amount of compensation payable to the applicant company, her occupation and utilisation of that land as the sitting tenant/lessee must be taken into consideration. - $5.$ The survey exercise is to be conducted within 30 days from the date of the delivery of this ruling; and costs of the independent survey are to be met jointly by the parties.

Ushar?

$\overline{5}$

$20$

- $6.$ The results from the independent survey which shall be relied on by the office of the Chief Government Valuer in assessing the value shall be binding on all the parties. - $\overline{7}$ . The respondents shall meet the costs of the valuation. - 8. The $1^{st}$ respondent shall issue the lease to the applicant for the residue of the surveyed portion within thirty days after receiving the survey report and upon the applicant's presentation of the lease application for the residue and all the documents relevant to the application.

Costs of the application to be met by the respondents.

Alexandra i

Judge

$\mathsf{S}$

20 14th August, 2023.

Debbeed via enail debeg $\frac{14}{8}$ eses