Nampembe( Administrator of the estate of late kiwanuka) v Uganda Electricty Transmission Company Limited (Civil Suit 97 of 2023) [2024] UGHC 1261 (30 September 2024)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF MUKONO AT MUKONO CIVIL SUIT NO 0097 OF 2023

#### **NAMPEMBE DAISY**

(Administrator of the estate of late Erukana Kiwanuka)::::::::::::::::::::::::::::::::::::

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## UGANDA ELECTRICITY TRANSMISSION CO. LTD::::::::::::::::::::::::::::::::::::

### **JUDGMENT**

## **BEFORE: HON. LADY JUSTICE CHRISTINE KAAHWA**

#### **Facts**

The Plaintiff is the Administrator of the estate of the late Erukana Kiwanuka and is the registered proprietor of land described as Block 169, Plot 125, located in Nama, Mukono District. In 2007, the Defendant encroached upon the Plaintiff's land without her consent. The Defendant proceeded to install high-voltage electricity lines and equipment on the suit land.

The Plaintiff initially sought compensation from the Defendant. However, the request was denied due to the Plaintiff's lack of the necessary documents, specifically the letters of administration and certificate of title for the suit

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land. In 2019, the Plaintiff successfully obtained the letters of administration and the certificate of title. The Plaintiff once again approached the defendant to request compensation.

Despite presenting the required documents, the defendant denied the plaintiff's request for compensation. The plaintiff subsequently issued a formal demand notice for compensation, which was also rejected by the defendant. As a result of the defendant's forceful installation of electricity lines and equipment, the plaintiff and other beneficiaries of the estate of the late Erukana Kiwanuka have been deprived of their right to own and utilize the suit land.

The Plaintiff now seeks legal redress through this action and prayed for;

- 1. A declaration that the defendant is a trespasser on land comprise in Block 169 Plot 125, land at Nama in Mukono District. - 2. A declaration that the defendant illegally deprived the plaintiff of her suit land by forcefully installing high voltage electricity supply lines - 3. An order compelling the defendant to compensate the plaintiff for the suit land at the current market value. - 4. Interest on compensation at a rate of 24% from the date of trespass till payment. - General damages and costs of the suit. 5.

### <u>Representation</u>

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Ms. Nalumu Habiba and Ms. Nuwagaba Patience appeared for the Plaintiff and Defendant respectively. When this matter was called for hearing on the 26<sup>th</sup> August 2024 the Defendant had not filed a defence in the matter and opined that they were willing to settle the matter amicably although counsel could not state in what terms.

The Defendant had not filed their witness statement and the Court under Order 17 rule 4 went ahead to hear the Plaintiff's evidence.

The Plaintiff called one witness and closed their case and time lines were given for the parties to file submissions. The Plaintiff complied with the directions of the Court.

### **Issues**

- 1. Whether the Plaintiff is the rightful owner of the land whether the Defendant is a trespasser. - 2. Whether the Plaintiff is entitled to compensation from the Defendant. - 3. Whether there are any remedies available to the parties.

### **Resolution of the issues.**

Issue 1: Whether the Plaintiff is the rightful owner of the land and whether the Defendant is a trespasser.

The Plaintiff adduced evidence to show that she was the owner of the land produced a copy of the certificate of title and letters of administration marked as PEX1 and PEX2. The letters of administration show that she is registered on the title in her capacity as an administrator of the estate of the

late Erukana Kiwanuka. She also testified that she was a daughter of the late Kiwanuka.

As regards the trespass to the land she testified that she was made aware of the fact that transmission lines had been erected on the land without her prior notice and consent. That when she approached the Defendant for payment, the Defendant declined to pay her because she did not have the certificate of title and letters of administration. That even when she obtained the requisite documents the Defendants have failed, omitted or neglected to pay her. Her prayer is that compensation should be made.

The Defendant did not adduce any evidence in rebuttal and it is my finding that PEx1 and PEx2 show that the Plaintiff holds the land lawfully. There are also photographs of the transmission lines marked as PEx4.

The Supreme Court while defining trespass as per Justine E. M. N Lutaaya v Stirling Civil Eng. Civ. Appeal No. 11 of 2002, held that trespass to land occurs when a person makes an unauthorized entry upon another's land thereby interfering with another person's lawful possession of the land. Furthermore, it was provided that to bring a trespass claim, you need to have a legal interest or right in the land, not just be physically present or using it. In other words, you need to prove you have a legitimate claim to the land in question. This is qualified by PEx1, PEx2 and PEx4.

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In Sheik Muhammed Lubowa v Kitara Enterprises Ltd C. A No.4 of 1987, the East African Court of Appeal noted that to prove the alleged trespass, it was incumbent on the Appellant to prove that the disputed land belonged to him, that the Respondent had entered the land without authorization.

PEx3 is a letter written to the Defendant on 18<sup>th</sup> August 2020 demanding due to the illegal trespass. The claims herein have not been rebutted.

In Odyeki & Anor Vs Yokonani & 4 Ors (Civil Appeal No. 0009 OF 2017) [2018] **UGHCCD** 50, it was held that an action for the tort of trespass to land is therefore for enforcement of possessory rights rather than proprietary rights.

Therefore, the Plaintiff being in possession of the land, had the right to exclude the Defendant. I call to mind the provisions of Section 188 of the Succession Act, Cap 268 as amended which provides that letters of administration entitle the administrator to all rights belonging to the intestate as effectually as if the administration has been granted at the moment after his or her death.

In light of the fact that there is no evidence to counter the claims of trespass and the burden of proof having been sufficiently discharged by the Plaintiff, and having established that the Defendant came into the Plaintiff's land without due authorization, I find that the Plaintiff has proved her case to the required standard.

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<u>Issue 2: Whether the Plaintiff is entitled to compensation from the Defendant.</u> The Defendant claim that their suit is barred by the doctrine of res judicata citing a similar suit between the parties, *HCCS No. 38 of 2021*.

Section 7 of the Civil Procedure Act provides that if a Court has already resolved a specific issue in a previous case involving the same people, that issue cannot be brought up again in a new case. If the same parties are involved and the matter has been settled in a competent Court before, the issue is considered final and cannot be re-litigated. This rule helps to prevent the same issues from being argued over and over again in different cases.

The Court of Appeal in *Ponsiano Semakula v. Susane Magala and others* (1993) KALR 213 explained the doctrine of res-judicata. It ensures that once a legal issue has been settled in Court, it should not be re-litigated. The principle is captured by the maxim **nemo debet bis vexari pro una et eadem** causa, meaning no one should be troubled twice for the same issue. Essentially, the idea is that each matter should be resolved in Court once and for all, preventing further legal disputes on the same issue between the same parties.

In Boutique Shazim Limited v. Norattam Bhatia and another, the Court ruled that to determine if res judicata applies, you need to check if the Plaintiff is trying to reintroduce a claim that has already been judged in a previous case. If the new claim addresses the same issues or falls under the same subject matter, res judicata applies. This principle covers not just the

issues directly decided in the earlier case but also any related points that could have been brought up then, as highlighted in *Greenhalgh v. Mallard*.

The plea has to be substantiated by producing copies of the pleadings and judgment in the previous suit. In some cases, only a copy of the judgment in the last suit is filed in proof of a plea of res judicata. If the judgment contains exhaustive or the requisite details of the material averments made in the pleadings and the issues that were taken at the previous trial, it may be sufficient proof. In our case, the burden of proving res judicata was on the Defendant. It is not a pure question of law that could be resolved based on the written statement of defence alone. Therefore, the Court needs a complete account of the material facts and arguments (pleadings) from the earlier trial, and the specific issues that were addressed because it is rather challenging to understand what was actually at stake or what had been decided in the previous case. From the fact pattern, considering the Defendants did not provide or attach to the Court record extrinsic evidence as well exhaustive details of the proceedings/ pleadings or better yet judgment of the same, the claim of res judicata by the Defence should fail.

The Court checked the Case Management System and established that indeed a suit had been filed in this Court between the same Parties and on the same subject matter. The end result of that case though was withdrawal by consent of the Parties. This is supported by Order 25 rule 2 of the Civil Procedure Rules that provides for withdrawal by consent. In my view since

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there was no final determination of the issues now before this Court the principle of res judicata is not tenable.

The Court will therefore ascertain whether the Plaintiff is entitled to compensation from the defendant. *Article* 26(2) *of the Constitution* provides that no one can be made to give up their property or rights over it without their consent unless it is necessary for public needs like security, safety, order, morality, or health. Furthermore, the law must ensure that fair and appropriate compensation is provided quickly before the property is taken. Article 237 of the Constitution provides that the Government or a local government is allowed to acquire land for public purposes, provided they adhere to Article 26 of the Constitution, and the rules for this acquisition are established by Parliament.

In *UEB v Launde Stephen Sanya*, the Uganda Electricity Board (UEB) unlawfully entered private land, causing damage and installing infrastructure without the landowners' consent. The Court, with Twinomujuni JA presiding, as he then was; found that UEB breached the Constitution considering they did not ask for consent, and went ahead to acquire the land legally without providing compensation. Given the above facts, the Defendant is entitled to compensate the Plaintiff.

Compensation simply means an award in lieu of loss. In this case the Plaintiff stated that she had no use of her land because of the trespass. She could not compute the amount of land that was under the transmission lines. She stated that the land is occupied by bibanja holders and is used largely

for agriculture. She therefore prayed for general damages.

In Crown Beverages Limited Vs Sendu Edward, the Supreme Court in Civil Appeal No.1 of 2005 held that,

"I now turn to the trial Court's discretion on matters of damages. The law is now well settled that an Appellant Court will not interfere with an award of damages by the trial Court unless, the trial Court has acted upon wrong principle of the law or that the amount is so high or so low as to make an entirely erroneous estimate of damages to which the plaintiff is entitled to... $"$

*Issue 3: Whether there are any available remedies to the parties.*

In Kampala District Land Board & George Mitala v Venansio Babweyana, *Civil Appeal No. 2 of 2007*, it is trite law that damages are the direct probable consequences of the act complained of. Such consequences may be loss of use, loss of profit, physical inconvenience, mental distress, pain, and suffering. The Plaintiff prayed for general damages and costs of this suit. In our case, the Plaintiff has been physically inconvenienced by the installation of high voltage electricity lines and equipment on the suit land, she has also suffered mental distress as she and her beneficiaries have been deprived of utilizing the suit land.

In El Termewy v Awdi & Ors (Civil Suit No. 95 of 2012) [2015] UGHCCD 4 (30 January 2015), the Court held that punitive or exemplary damages are an exception to the rule that damages generally are to compensate the injured

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person. These are awardable to punish, deter, and express the outrage of Court at the Defendant's egregious, high-handed, malicious, vindictive, oppressive, and/or malicious conduct. They are also awardable for the improper interference by public officials with the rights of ordinary subjects.

In this case it is befitting for the Court not to award general damages as the Plaintiff stated that she could not use her land as the poles had been laid thereon and her estimate was that it covered an area of 1.2430 hectares an award of Shs. $50,000,000/$ = is made as recompense for none use and any likely adverse health interference.

Therefore, the Court makes the following awards;

1. General damages to the tune of 50,000,000 UGX to the plaintiff.

2. Costs of the suit are awarded to the plaintiff.

4. Interest on compensation at a rate of 6% from the date of trespass till payment in full.

Dated and delivered at Mukono this 30<sup>th</sup> day of September 2024.

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Christine Kaahwa

JUDGE