Ssenyange v Kampala City Council Authority (Civil Suit No. 710 of 2017) [2023] UGHCLD 2 (12 January 2023)

#### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

# **LAND DIVISION**

#### CIVIL SUIT NO. 710 OF 2017

#### $\mathsf{S}$ **JAMES SSENYANGE**

(suing through his lawful attorney, Sylvia Nalumansi Marvis::::::::::::::::::::::::::::::::::::

### **VERSUS**

#### 10 KAMPALA CAPITAL CITY AUTHORITY::::::::::::::::::::::::::::::::::::

# Before: Lady Justice Alexandra Nkonge Rugadya

### **JUDGMENT:**

### Introduction:

The plaintiff, Mr. Ssenyange James is the registered owner of land comprised in **Kyadondo Block**

15 2 plot 314, land situated at Namirembe. He filed this suit through his lawful attorney, Nalumansi Sylvia Marvis, seeking against Kampala Capital City Authority (KCCA), a permanent injunction restraining it from trespassing onto the suit land or in the alternative, compensation; general damages for trespass; costs of the suit; mesne profits.

# **Representation:**

20 The plaintiff was represented by **M/s Century Advocates**. The defendant was represented by the Directorate of Legal Affairs, at the Kampala City Council Authority. (KCCA). Both counsel filed written submissions as directed by court.

Attempts were made by both sides to settle this dispute. These were however futile. At the scheduling, the following were the agreed facts; disagreed facts and issues.

#### 25 Agreed facts:

1) That the land in question is comprised in Kibuga Block 2 plot 314 measuring 0.142 hectares (35.1 decimals);

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- 2) That the plaintiff is the registered owner of the suit land; - 3) That the defendant offered compensation package of ugx 464, 968,000/= to the plaintiff but revised the offer to Ugx $67,298,000/$ = which the plaintiff rejected.

Disagreed facts:

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- 1. That the entire suit land was already occupied by an existing road. - 10 2. That what was undertaken by the defendant was merely an upgrade. - 3. That the defendant carried on expansion works on the already existing road thus affecting the plaintiff land. - 4. That the 13 decimals of the plaintiff's land were taken up as for the expansion of the road by the defendant in addition to the 12 decimals onto which the existing road was seated. - 5. That there were errors committed by the defendant's road design/valuation consultants, UB Consulting Engineers Ltd. - 6. That the correction of errors resulted into smaller area of plaintiff's land used up resulting into a reduction in value of Ugx $397,670,000/$ =. - 25 7. That the plaintiff consented to the defendant's works or encroachment onto the land.

# **Issues:**

- 1) Whether the defendant had trespassed on the plaintiff's land. - 2) Remedies. - 30 Issue No. 1: Whether the defendant trespassed on the plaintiff's land.

# Burden and standard of proof.

By virtue of **section 101 (1) of Evidence Act, Cap. 6,** whoever desires court to give judgment to any legal right or liability depending on the existence of any facts he/she asserts must prove

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that those facts exist. (George William Kakoma v Attorney General [2010] HCB 1 at page 78).

The burden of proof lies therefore with the plaintiff who has the duty to furnish evidence whose level of probity is such that a reasonable man, might hold more probable the conclusion which

# the plaintiff contend, on a balance of probabilities. (Sebuliba vs Cooperative Bank Ltd. [1982] HCB 130; Oketha vs Attorney General Civil Suit No. 0069 of 2004.

$\mathsf{S}$

But that burden may shift to the defendant, such as would require him/her to adduce evidence sufficient to support the rebuttal of the evidence raised against him/her. (See also: S. 101, S. 102 and S. 103 of the Evidence Act Cap 6 and Mudiima & 5 Ors Vs. Kayanja & 2 Ors (Civil Suit 232 of 2009) [2014] UGHCLD 34).

It is not in dispute that the plaintiff is the registered owner of the land comprised in **Kyadondo** Block 2, plot 314, land at Namirembe along Hoima Road (suit land).

A suit for *trespass* to land is premised on the possessor's right to exclude and requires proof of the fact that the defendant did or caused something tangible to cross the boundary line onto the plaintiff's land.

An intentional trespass occurs when the defendant knowingly or deliberately crosses the boundary lines of another's land, either personally or with an object large enough to displace the owner of possession. (Ref: Nyero Olweny & Others Civil Appeal No. 50 of 2018)

In Justine E. M. N. Lutaaya Vs Stirling Civil Engineering Co. Civil Appeal No. 11 of 2002 20 (SC) it was held that trespass for land occurs when a person makes an authorized entry upon land, and thereby interferes or portends to interfere with another person's lawful possession of that land. The burden lies on the plaintiff to prove that the defendant illegally entered on to the suit land.

The plaintiff who testified as **Pw3** relied on the evidence of 4 other witnesses. He informed court 25 that the land in dispute was originally owned by his grandfather, passed on to his father who bequeathed it to him. He presented a certificate of title **PExh 1**, for the suit land.

It indicates that he got registered on the title on 10<sup>th</sup> March, 2016. The previous owners were Efulansi Musoke Michael Lubowa and Esther Musoke, co-administrators of the estate of the previous owner K. K. Musoke, who had acquired the title on 5<sup>th</sup> September, 1949.

30 That he had been in possession thereof until around April, 2017 when the defendants forcefully entered into the land by way of expansion and construction of the road. However that before the

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construction commenccd thc dcfcndant's officials approachcd him with a disclosure form dated 6rr'April, 2016 offering to pay him Ugx 464,96a,OOOl= as compcnsation.

The two sides had signcd a disclosurc form but about four months later prcsented him with another disclosurc form for Ugx 67,29a,OOO/=, which he rcjcctcd thus withdrawing his consent. That upon inquiry, he was informed that thc road design had been changed on account of the errors and reduction of thc proposed area to bc utilised.

The plaintifl howcvcr askcd for thc old and ncw dcsign from the defendant, to enable him reach a conclusive decision but none was availed to him. This had not stoppcd the defendant from carrying on the works, without prior compcnsation to him.

The plaintiff also claimcd that of thc 0.25 acrc of land, 0.12 acrc wcrc thc cxisting arca uscd by thc dcfcndant which had ncvcr becn compcnsatcd for. Thc ncw expansion took another 0.13 acres and as per as pcr valuation rcport datcd of 7'h Octobcr, 2019, filed by Put4, Mr. Boaz Tukahirwa, the cstimatcd value ofthat land was Ugx 577,OOO,OOO/= (PExh 3). 10

Pu: 4 had bascd his rcport on a boundary opening for thc land in disputc which had been conductcd on 7 ' Octobcr, 2019 by Put', Mr. Michacl l]aguma, a survcyor wilh M/s Adelten Consult Ltd who informcd court that hc was appointcd by thc plaintiff to establish thc sizc of the old road, extcnts, sizc of road cxpansion works and thc residuc. 15

IIis findings were that the suit land has an area of 0.142 hectares or O.35 acres which as establishcd by court, ta,llicd with thc acrcagc on his title. According to the survey report, the road

cxtcnts bcfore thc current cxpansion works wcrc found to take up approximately 0.047 hectares or O. 12 acres/decimals. 20

That in thc process of thc ncw road works, thc road cxtensions took up an cxtra portion of 0.052 hcctarcs or O.13 acres/dccimal. The total arca acquircd by thc dcfcndant for thc cxpansion, was 0.099 hectares or 0.25 acres which lcft only 0.043 hcctarcs or O. 10 dccimals as thc residue.

That upon rcquest by thc plaintiffs lawycrs they conductcd a joint survey with the defendant's surveyors and the two sidcs in compliance with that rcquest, confirmcd the findings as expressed in the survey report datcd 7th Octobcr 2019. 25

The plaintiff furthcr claimcd that thc road which travcrscs his land began as a small road for pedestrians. It was latcr cxpanded and tarmacked in thc latc 50s. IIis father became owner of

the title of the land; and that the scction of the land which was used as a road could not be utilized for anything elsc. 30

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That before the expansion there was land which he could have put to use as a petrol station or for other purposes. The neighboring plot 372 had also bccn inherited by him from his father. The plaintiffs claim was that he had bccn dcprived of his right to own possess and utilizr his land and his prayers were for compensation ofthe acquisition ofhis land, commensurate to value of the land.

llis cvidence was supported by that of his mothcr, Ms l'ulansi Miriamu Nalugwa Musoke, aged 90 years. Tcstifying as PurI, shc confirmcd to court that shc had resided on thc land from 1940s and that shc, the plaintiff and thc rcst of hcr family had bccn in possession of the said land until about November, 2017 when the defendants forccfully entercd the suit land through the upgrading and expansion of the road works on thc cxisting road.

In further corroboration of her son's evidence, she claimed that she learnt, to her surprise that the amount ofcompensation which was originally offcrcd to his son and which he had signed for under the disclosure form had been reduccd by thc defendant from Ugx 464, 96a,OOO/= to Vgx 67129a,OOO/=, under the pretext that thc road design had bccn changed due to errors and reduction in thc original proposed area.

That amid protcsts by the plaintiff and despitc thc fact that thc suit was ongoing, the dcfcndants had commcnccd thc road works around Novembcr, 2077 and in the process her fence had collapscd, although it was later on repaircd by thc contractor.

Pu4, Mr. lloav Tukahirwa, in his valuation rcport lPExh4) provrdcd an assessmenl of Vgx 577,OOO,OOO/= as value of the propcrty, brokcn down as Ugx 4O,869,565F for the old alignmcnt measuring O. 12 decimals. 20

The ncw alignmcnt measuring O. L3 acrcs was valued al Ugx 460,869,565/=. The disturbancc allowancc of 15oZ amounted to Ug 75,260,870/=. That sincc the land has appreciated the compensation ought to be paid at the currcnt markct value rate.

During cross cxamination hc admittcd that thc rcport had no comparisons to estimatc value of neighbouring areas but that the value as estimated was bascd on the developmcnts in the area and bascd on thc fact that thc land could havc been utilizcd by thc plaintiff for othcr purposes. 25

The sole witncss for the defendant, Mr. Charlcs Tumwebaze, thc project coordinator for the defendant who despite the fact that he had filed a witness statemcnt, did not turn up in court to testify.

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# Decision oJ court:

I have carefully read thc submissions and thc cvidcncc by both counscl details of which arc on record, and which I havc duly takcn into considcration in this judgment.

5 The burdcn of proof lics with the plaintiff who has thc duty to furnish evidence whose lcvel of probity is such that a rcasonablc man, might hold morc probablc thc conclusion which the plaintiff contcnd, on a balancc of probabilitics. (Sebullbrr as Cooperatlue Bo,nk Ltd, [19821 IICB 73O; Oketha as Attorneg General Cirrll Suit No. 0069 PExh 2 is thc disclosurc form signed by the plaintiff on 8'h April, 2O16.

In the prcsent casc, the plaintifl's mother who testified as PUI had also endorsed the disclosure form as his next of kin. The document was signed in the presence of Pu, 2, Godfrey Mukasa, a member of the RC 1, Ilukesa village. 10

He informed court that thc plaintiff had appeared with KCCA officia.ls who had informed him tlat they intend to carry on road upgrades and expansion of thc road which were likely to affect several rcsidents, including thc ptaintiff.

Counsel for thc defendant made submissions to the cffect that the dcfendant had arrived at the figurc in assessment report gencrated by Jl[s UB Consultlng Englneers rtd, approved by Lhe Chief Governmcnt Valucr on thc l5rh Octobcr, 2015. 15

Thc plaintiff signed a disclosurc and conscnt form on lo'h May, 2016 which allowcd the defendant to commencc the upgradc road. I lowevcr that bcforc compcnsation could bc cffected, several other affccted persons raised complaints about thc impact on the road on their properties.

A design review was undertaken and that the impact on the plaintiffs land was reduced because the land cntirely sat cntirely in thc existing road and attractcd only 10 percent of the average market value,

The defcndant cngagcd thc community affectcd including thc plaintiff, in somc meetings and thc changes were explained. Thc rcvicw rcsultcd in thc rcduction of thc compcnsation; and the plaintiff was informed accordin gly. 25

Counscl citcd thc casc of Steroart Gduagd Tegule as KCCA, Clull Sult,lvo. 274 of 2O77wherc court declared that thc access ariscs by prcscription, or long usc or existcncc of thc acccss road. IIe also rcfcrred to the defcndant's function as thc KCCA to construct and maintain roads, as mandated undcr section 4g) ol the KCCA Act, 2O7O.

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Although his arguments wcre not backcd up by any supporting cvidcncc, it was not in disputc that thc land in question was encumbercd by thc tlakuli Nakulabyc- Kasubi (Hoima) Road which cncumbrance had existed cven bcforc the plaintiff bccamc rcgistered proprictor on the certificate on the 1Oth March, 20 16.

5 It is also correct to argue that the predccessors including thc plaintiffs father never raised any complaint about the usc of this land when it was tarmackcd and utilized as an access road, for a period of now more than 50 ycars.

Counsel's argumcnt was that since an easement was alrcady in cxistence on that plot created over thc years, it would bc wrong to call thc dcfcndant a trcspasscr on that land.

- In Pad.d.g Musoke us John Agard , Andreu Doery qrrd Etto. Wlnf"ed. MaganJa HCCA No. 36 of 2012, citcd by counscl, court found that thc rcgistcrcd proprictor can commit trespass by blocking an cxisting acccss road. Court further hcld that cven if the appellant owned the plot ovcr which thc acccss road passed, hc owned it subjcct to the cxisting easement, regardless of whether or not it was rcgistcred. I do not find these arguments applicablc to thc present 10 - circumstances, 15

conditions arc satisfied:

What is applicable is sectlon 77 of the Land Act, Cap. 227 as citcd by counsel, which provides that all land whcthcr alicnatcd or unalienatcd is subjcct to thc cxisting public rights of way which shall bc rescrvcd and vested in thc Govcrnment on behalf of thc public; and all such rights of way shall be maintaincd by the public uninterrupted, unlcss they are terminated or altered by the direction of the Ministcr in writing.

The above howcvcr must bc considcred with duc rcgard to the provisions ol Artlcle 26 of the Constltutlon ol Uganda which stipulatcs that: no pcrson is to bc compulsorily dcprivcd of propcrty or any intcrest in or right ovcr propcrty of any dcscriplion, cxccpt wherc the following

25 1

- the t(tktng o/possesslon or acqulsitloa ls necessarg Jor publlc use or i^ the lntetest of dele^ce, publlc safetg, public order , publlc t ordlltg or publlc he.rrth; d.nd. - 2. the compulsory takl^g oJ possesslon or acqulsltlo^.... ls tud.de und.et d ld.it), urhlch mo.kes prot lslon for protnpt payr e,rt oj Jair .lnd adequate cor pensatlon, prlor to the talclng oJpossesslo or acqulsltlon of propertg.

Artlcle 237 (2Xa) ol the Constltution furthermorc givcs thc local govcrnmcnt powcr to acquirc land in the public intcrcst. Thc conditions govcrning such acquisition are prcscribcd by

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Parliamcnt. Rcf. (La.nd AcquisitTon Act, Cap. 226 qnd La d Act, Co.p. 227). Thus a pcrson having intcrcst in land compulsorily acquircd by Govcrnmcnt is entitlcd to compensation.

Unlikc thc La.nd Act, which was passcd in 1998 with amcndmcnts latcr, the Land Acqulsltlon Act was cnactcd in 1965, somc thirty ycars bcfore thc promulgation of the Constitution, By

- 5 virtue of thc provisions of l}].c Land Acqulsltlon Act, Cap. 226, rt is only the person who is authorised by thc Ministcr that can cntcr with the objcctivc to acquirc that land, survcy it or do any other such other thing to asccrtain thc suitability for the purpose for which it is intended.lsection 2 (1)). Undcr sectlon 2(2) thercof, thc pcrson who suffcrs damagc as a result of the exercisc of the powcrs under sectlon 2(I) is guarantecd of compcnsation by Govcrnmcnt. - These provisions rcccivcd rcinforccmcnt from thc cnactment o{ Land. Act, Cap. 227, with some provisions bcaring similar objectivcs as thosc under thc Land Acquisltlon Act, CaP, 226. SectTon 42 of ll'le La.nd Act lor instancc states that thc Government or a local government may acquirc land in accordancc with crrticles 26 and 237l2l of the Constltutlon (cited abovc). 10

For somc rcasons howcvcr which arc not so difficult to gucss, counsel for thc dcfendant did not address court on the rcquircmcnts in sectlon 73 of thal. samc Act, that wherc it is neccssary to exccute public works on any land, an authorized undertakcr shall cnter into mutua.l agreement u.ith the occupier or owner of the land in accordancc with the nct; and whcrc no a8reement is reached, thc Ministcr may, compulsorily acquirc land in accordance sectlon 42. Going by the contents of those provis'ions, an entity sccking to takc ovcr somc property compulsorily can only 15

do so must not do so after involving the Minister. 20

> Under suD sectlon (3), thc aulhorzcd undcrtaker exccuting public works must promptlA paV compensation to any pcrson having an intcrcst in thc land for any damagc caused and for the land and materials taken.

In this case however, thc only correspondcnce betwcen the plaintiff and the defendant is the disclosure form which thc two had cndorscd in 2016, but which was ncvcr cxccuted because the defendant purportcdly madc a dccision to altcr thc arca dcsign. 25

As submitted by the plaintiff in rejoindcr, thcrc is no proof that thcrc had becn a review of thc design and other than thc disclosure form, thcre is no evidence of a mutual agreement between the partics as envisaged under sectlon 73 ol the Land Act.

Without following thc proccdurcs as strcamlined in thc law, zLnd aftcr circumstanccs had allegcdly changcd, thc dcfcndant who from thc findings of thc unchallcngcd survcy rcport cntcrcd 0. l3 acrcs of thc plaintiffs land, doing so without prior, fair and adequatc compcnsation, could 30

U"t"b not therefore rely on that form to claim that he had obtained prior consent before carrying out the expansion. The said consent had conditions that the defendant had to fulfil.

The defendant had every right to exercise its mandate over the old existing road, but not in respect of any extra portion of land which from the report measures 0.13 acres, over which no consent was ever secured before the road expansion.

$\mathsf{S}$

It is also true that under **section 7(g)** of the **KCCA Act, No. 1 of 2010** it was the function of the defendant to maintain and carry out repairs on the roads. However nothing in that Act can be construed as exempting the defendant from complying with the provisions of the law. As correctly pointed out by counsel for the plaintiff in his rejoinder, the defendant, (even as a holder of such public rights in trust), cannot be allowed to act arbitrarily, and/or against the law.

In respect of the area previously covered by the road prior to expansion therefore no action in trespass can succeed since there was acquiescence for over a period of time by the plaintiff's predecessors in title over the use and development of part of the land as an easement.

At common law, acquiescence of a degree that amounts to passive encouragement, may by way 15 of a proprietary estoppel, deprive an owner of land in favour of an occupier of land in possession under a mistaken belief in his or her own inconsistent legal right, when it is unconscionable for the owner to reassert his or her title (see Willmott v. Barber (1880) 15 Ch D 96 and Taylors Fashions Ltd v. Liverpool Victoria Trustees Co Ltd [1982] QB 133).

This requires proof in the first place that:

20 The occupier made a mistake as to his legal rights; the occupier must have expended some money or must have done some act on the faith of his or her mistaken belief; the owner of the legal right, must know of the existence of his or her own right which is inconsistent with the right claimed by the occupier; the owner of the legal right, must know of the occupier's mistaken belief of his or her rights and must have encouraged 25 the occupier in his or her expenditure of money or in the other acts which he or she has *done, either directly or by abstaining from asserting his or her legal right.*

The principle requires an approach which is directed at ascertaining whether, in particular individual circumstances, it would be unconscionable for a party to deny that which, knowingly or unknowingly, he or she has allowed or encouraged another to assume to his or her detriment

#### 30 (see Willmott v. Barber (1880) 15 Ch D 96).

If the legal owner stands by and allows the claimant to, for example, build on his or her land or improve his or her property in the mistaken belief that the claimant had acquired or would acquire rights in respect of that land or property then an estoppel will operate so as to prevent the legal owner insisting upon his strict legal rights.


Dquity comcs in, true 10 form, to mitigatc thc rigours of strict law- It will prcvent a person and succcssors from insisting on his/her strict rights, whcther arising out undcr a contract or on his title dccds or by statute, whcn it would bc inequitablc to do so having rcgard to the dealings which havc taken placc bctwecn thc parties. (Ibaga ts Tarakpe Ctatl Appeal No. OOO4 ol 2O77)-

In alignment with the above, thc plaintiff did not thercforc rcveal to court thc cntire truth when he stated in paragraph l0 of his statcmcnt that it was around November, 2077 thal the defendants forccfully cntcrcd into his land taking ovcr 0.25 decimals.

From his own cvidencc, by the time he acquircd his titlc the dccision had already been made with acquicsccnce of his prcdecessors in titlc to acquirc part of that plot as a road. Hc had not been privy to that decision, had no intcrest at thc time, and cannot claim any compensation in a-rrears so to say, in that respect. 10

A breach of a contract rcfers to a situation whcrc one party to a contract fails to carry out a term of the said contract. It occurs whcn a party ncglccts, rcfuscs or fails to perform arly part of its

#### bargain or any term of thc contracl, writtcn or oral, without a legitimate legal excusc. (See.' Ronald Kaslbo,nte vs. Shell Uganda Ltd HCCS No. 542 o! 2006 [2OOa] ULR 690. 15

It follows thereforc that whcn one party to a contract fails to perform his or her obligations or performs thcm in a way that does not correspond with thc agrcement, thc guilty party is said to be in brcach of the contract and thc innocent party is entitlcd to a remedy. The defendant in this regard failcd to comply with the terms of thc contract as contained in the disclosure form.

The altcrations if any, which may havc followed a rcview in thc design with all due rcspect, requircd the two p€Lrtics to cntcr into frcsh tcrms with correct spccifications of the arca, which they ncver did. As pointcd out in thc submissions by his counsel, the plaintiff had alrcady withdrawn his conscnt justifiably so, at thc time when thc works on thc cxpansion commenced.

Fle could not be bound by any claims of changcs in designs made by the dcfendant, which in any case wcrc ncvcr duly communicatcd to him before taking ovcr a sizeablc portion ofthe land, and which ovcr thc time becamc a prime arca for commercial and public use. 25

It is also thc vicw firmly hcld by this court that thc fact that the land had already been cncumbered; that the dcfcndant was mcrcly cxcrcising its statutory function of maintaining the

public right of way; that aftcr old alignmcnt, the land was not commercia.lly usable; or that the remaining portion could bc utilized for any othcr purposc, wcrc not helpful to the defence case. 30

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They were not determinants to the question whether or not the plaintiff is entitled to fair and adequate compensation prior to the acquisition. What was important was the obligation and duty to be observed by an entity intending to acquire any privately owned property and only acquire it after following the due processes of the law.

#### $\mathsf{S}$ Issue No. 2 : Remedies:

The plaintiff in this suit seeks a permanent injunction restraining it from trespassing onto the suit land; or in the alternative compensation; general damages for trespass; costs of the suit; mesne profits.

# General damages:

The law is that the claim for general damages must be proved. General damages are those that 10 the law presumes to arise from direct, natural or probable consequences of the act complained of by the victim.

These follow the ordinary course or relate to all other terms of damages whether pecuniary or none pecuniary, future loss as well as damages for paid loss and suffering. See; Uganda

15 Commercial Bank Vs Deo Kigozi [2002] EA 293.

> **Black's Law Dictionary 9th Edn at page 445** defines damages as the sum of money which a person wronged is entitled to receive from the wrong doer as compensation for the wrong. It is trite law that damages are the direct probable consequence off the act complained of. Ref: Storms versus Hutchison (1905) AC 515.

20 In the case of Assist (U) Ltd. versus Italian Asphalt and Haulage & Anor, HCCS No. 1291 of 1999 at 35 it was held that the consequences could be loss of profit, physical, inconvenience, *mental distress, pain and suffering'.*

In alignment with the above authorities and principles a highlighted, the determination of the amount payable as general damages is left within the discretion of court. Based on the fact that the plaintiff as the registered proprietor has had to forfeit the exclusive enjoyment and full utilization of the plot for years, the inconvenience suffered by him and damages caused entitle him to an award of $Ugx$ 50,000,000/=, as general damages.

### Mesne profits:

Section 2 (m) of the Civil Procedure Act, Cap. 71 defines mesne profits as:

where

......... those profits which the person in wrongful possession of the property actually received or might, with ordinary diligence have received from it, together with the interest on those profits, but shall not include profits due to improvements made by the person in wrongful possession'.

In the case of George Kasedde Mukasa versus Emmanuel Wambedde & 4 Ors, High Court 5 Civil Suit No. 459 of 1998, Mukiibi J. stated that wrongful possession of the defendant is the very essence of a claim for *mesne* profits.

Damages by way of *mesne* profits are awarded in cases where the defendant has wrongfully withheld possession of the land from the plaintiff. (Elliott versus Boynton [1924] I Ch. 236 [CA] Warrington, L. J, at page 250).

10 In this case the defendant's wrongful act of acquiring the land without the consent of the plaintiff and without prior compensation amounted to arbitrary exercise of its powers, which ultimately affected the plaintiff's right to develop and enjoy the property, from 2016 to date.

As already declared by court, the plaintiff would have no cause of action against the defendant prior to 2016, and in respect of the existing road covering 0.12 acres that had been tarmacked in 1950.

He nevertheless had a cause of action for the portion of the land measuring 0.13 acres where the expansion was made, which could have been developed to fetch some decent income for the plaintiff.

Since that no longer seems possible, I would apply court's discretion to grant a sum of $Ugx$ **72,000,000/=** as *mesne* for the wrongful possession.

## Compensation to the plaintiff:

Counsel for the plaintiff in his submissions made reference to the Supreme court decision **UNRA** vs Irumba Asumani & Anor No. 2 SCCA where it was held that section 7 (1) of the Land Acquisition Act was inconsistent with article 26 of the Constitution.

25 The section allows a person's land to be taken by the Government before paying adequate compensation, and court while nullifying that section stated that it does not provide anywhere for prior payment of compensation before Government takes possession or acquisition.

The value attached to the property following the valuation is a sum of *Ugx 577, 000,000/=*. The estimated increase in value of 20% per annum was *Ugx* 115,400,000/ $=$ . Counsel in this case accordingly prayed for a sum of *Ugx 692, 400,000/*= as the current market value.

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The defcndant's counscl in submission howcvcr argucd that Pu4, Mr. lloaz Tukahirwa, had testified that he had uscd thc comparablc transactions mcthod by which the value of the suit land was arrived at by using information on transactions involving assets that are the same or similar to the subject asset. Howcver that during cross examination he failcd to idcntify similar property encumbered by road so as to come up with the value.

The best way in this court's vicw would have been for the defendant to challenge that report in terms of facts and figurcs prcsented through thc Chief Government Valuer's office or other credible expert's report, which was not donc.

On page 21, of thc assessmcnl rcporl PExh 4, thc sum of Ugx 577,OOO,OOO/= was broken down as t gx 5O7,739,730/= givcn as the valuc of thc land; and Ugx 75,260,A70/= as disturbance allowancc. 10

Thc valuc of thc old alignmcnt which is Ugx 4O,a69,565/= must be deducted howcver from thc total amount of Ugr 5O1,739,13O/= based on the earlier findings ofthis court that the plaintiffs father had passivcly conscntcd to thq acquisition of thc existing portion of thc road at the time. IIe nevcr raised any complaint against the dcfcndant or thc KCC at that time.

The value of the new alignmcnt Ugx 460,869,565/= thcrefore remains the amount of compensation to which thc plaintiff is cntitlcd to. Thc valuer's claim that thc value may have gone up by 2oolt, fram thc time the asscssmcnt was madc, was not howevcr backcd up by any documentary evidencc. 'l'his court also failcd to cstablish how thc figure of Ugx 75,260,87O/= (calculated as 15%r disturbancc allowancc) had bccn arrivcd at during the asscssment.

The actual figure out of which the pcrcentage was to bc made was not provided for in the report; and no explanations could be found in substantiation of those calculations which means that both disturbancc allowancc and 2Oo/o estimatcd as the increasc in value were prcmiscd on merc speculation.

I)cduccd from thc contcnts of the report, it is clcar that the intercst hcld by thc owner as the residue portion significantly reduced leaving approximately 0.10 decimals which can hardly be put to good economic use. This is supported by both thc undisputcd survey report and the valuation report (PExh 3 o,nd PExh4). 25

The defendant did not only fail to lead any factual evidcnce to chaJlenge the second assessment made by the said valuer, it also failed to provide proof on how the Chief Government valuer had in the first place arrived at thc figurcs as originally spclt out in the disclosure form. 30

0ilP4" 13

Based on the findings of this court, the granting of the sum of Ugx 460,869,565/= as compensation for the unlawful acquisition of the plaintiff's land by the defendant, is justified.

In the final result, the plaintiff is entitled to the following reliefs:

1. Compensatory award of Ugx $460,869,565/$ =;

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- 2. General damages of Ugx 30,000,000/=; - 3. Mesne profits of Ugx 72,000,000/=; - 4. Interest at the prevailing commercial rate, payable for orders 1, 2 and 3 above, from the date of delivering this judgment, till payment is made in full; - 5. Costs of this suit.

ge Rugadya 15 Alexandra Nkon

# **Judge**

12<sup>th</sup> January, 2023.

Delivered by email<br>Anhaly J<br>12/1/2023.

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