Takaya v Uganda National Roads Authority and Another (Civil Suit No. 040 of 2013) [2015] UGHC 13 (16 April 2015)

### **THE REPUBLIC OF UGANDA**

### **IN THE HIGH COURT OF UGANDA**

#### **AT MASAKA**

# **! CIVIL SUIT NO. 040 OF 2013**

**TAKAYA FRANK PLAINTIFF**

**VERSUS**

## **1. UGANDA NATIONAL ROADS AUTHORITY 2. MASAKA MUNICIPAL LOCAL COUNCIL** .. **. DEFENDANTS**

### **BEFORE: HON. LADY JUSTICE MARGARET C. OGULI- OUMO IO**

#### **(JUDGE)**

#### **JUDGEMENT**

The plaintiff brings this suit against the defendants jointly and severally for:-

- a) Payment of 510,162,000/- special damages - b) General damages for trespass/deprivation - c) Interest on (a) above at the rate of-30% from 23rd January, 2013 and on (b) at the court rate from the date ofjudgment till full realization - d) Costs of this suit -2.0

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> e) Any further and other relief this Honorable Court may deem fit to award.


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The brief facts of this case are that;

The plaintiff is the registered owner of a piece of land comprised in mailo register Buddu Block 325 plot 1735 measuring 0.022 hectares at Kasana Nyendo trading centre Masaka municipalty which he acquired for purposes of constructing a commercial ST building.

The plaintiff submitted to the 2nd defendant plans for the proposed building which was approved.

He engaged M/s G. M. L TECH . CONSTRUCTION COMPANY LIMITED to commence construction of the building. <sup>|</sup> O

When the plaintiff commenced construction, he was stopped by the 1st defendant who claimed that the piece of land was a road reserve. There upon the 2nd defendant confiscated his building materials and equipment after the building plan was withdrawn.

At the hearing of the case, the plaintiff was represented by Mr. <sup>I</sup> S John Matovu and the 1st defendant was represented by Ms. Diana Mulondo and Mr. Mpanga Isaac and the 2nd defendant was represented by Mr. Kalemera John and later Ms. Lubowa Racheal- state Attorneys.

Both parties submitted written submissions which <sup>I</sup> shall refer to'20 in my judgment.

To prove their cases, the plaintiff produced two witnesses while the 1st defendant - produced <sup>1</sup> witness and the 2nd defendant produced 2 witnesses to prove their cases.

At the commencement of the hearing, the following issues were 2. S" agreed on;

- 1. Whether the plaintiff's land is on a gazetted road reserve? - 2. Whether the plaintiff's construction on the suit property encroached on the road reserve?


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3. What remedies are available to the parties?

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Mr. Matovu learned Counsel for the plaintiff cited *section 2 of the Roads Act Cap 358* which provides inter alia:-

**s** *"The minister may by statutory instrument declare an area bounded by imaginary lines parallel to and distant not more than fifty feet from the centre line ofany road to be a road reserve."*

Counsel argued that the above section provides for a standard measurement of 50 feet (or 15 meters) from the Centre line of any road but that importantly, the road reserve must be declared by the responsible minister by statutory instrument that, it must be gazetted.

**is** He went on to submit further that, according to the testimony of Senninde Steven(DWl) in his testimony he stated that the plaintiff was supposed to leave fifteen (15) meters from the Centre line along Masaka Nyendo road and along Masaka- Bukakata Road but the area left was more than that.

Counsel submitted also that there was no evidence gazetting the road reserve along those roads which was very vital in view of section 4 of the Roads Act cap 358.

**2^0** Counsel finally submitted that since there was no proof that the gazetted road reserve at the plaintiff's building site is fifteen meters and not any other measurement permitted by s.4 of the Act, in the case of towns and therefore the defendant's had failed to prove that part of the plaintiff's land is a gazetted road reserve as gazetting is a question of fact and to prove it one needs to produce the particular statutory instrument and a copy of the Uganda Gazette which the defendants have failed to prove.

In reply, counsel for the 1st defendant contended that *section 2 of the Roads Act cap. 358* does provide that the minister may by statutory instrument declare an area bounded by imaginary lines

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parallel to and distant not more than fifty feet from the Centre line of any road to be a road reserve.

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That paragraph (2) a of The Roads (Roads Reserves) (Declaration) instrument SI 358 -1 declares that;

"In respect of roads specified in the first schedule to this S instrument, there shall be a road reserve which shall be an area bounded by imaginary lines parallel to and distant fifty feet from the Centre line of any such roads."

That *item <sup>1</sup> of the first schedule* provides for Road reserves by imaginary lines parallel to and distant fifty feet from the centre line <sup>I</sup> \*0 and *in sub item (b)* all roads maintained by the Local Governments of Kalangala, Kampala, Kiboga,Luwero, Masaka, Mpigi, Mubende, Mukono, Nakasongola , Rakai, Ssembabule and Wakiso districts as the case may be.

Counsel for 1st defendant submitted further that the Masaka- <sup>I</sup> S Nyendo and Masaka-Bukakata roads are roads with defined road reserves because they are all maintained by Masaka Municipal Council as prescribed by Law.

Counsel contended that the plaintiffs claim that there is no evidence to prove gazetting the road reserves to be 15 meters from JTc, the Centre line is. not true since the Law he has cited above is clear.

That when converted, fifty feet equals to fifteen (15)meters from the centre line and that-under the Roads (Road Reserves) (Declaration) instrument SI 358 Its stipulated that in respect of Masaka-Nyendo road and Masaka-Bukakata Roads, being maintained by Masaka Municipal Council as listed in the schedule to the statutory instrument, that there 'should be a Road Reserve which shall be imaginary lines parallel to and distant fifty feet from the center line of any such road.

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Counsel for the first defendant contended that that was a declaration for both those roads by the statutory instrument and are therefore gazetted.

As regards the $2^{nd}$ defendant, in resolving the $1^{st}$ issue also cited **section 2 of the Roads Act cap 358** (supra) which gives the $5$ Minister power to declare an area bounded by imaginary lines to and distant not more than fifty (50) feet from the centre line of any road to be a road reserve by statutory instrument.

He also contended that section $2$ is operationalized by the Roads (Roads Reserves) (Declaration) instrument SI 358-1 which in $\sqrt{6}$ Regulation 2 declares Road Reserves as follows;

That the first schedule therein provides for Road Reserves bounded by Imaginary Lines parallel to and distant fifty (50) feet from the Centre line in Buganda and they include;

All roads maintained by the Local governments of inter alia $\vert$ S $i$ Masaka

Counsel for the $2^{nd}$ defendant thus concluded basing on the aforementioned provisions of the Law that the road in issue has a road reserve as declared by the relevant minister under SI 358-1.

In rejoinder, Counsel for the plaintiff submitted that neither the 1<sup>st</sup> 20 nor the $2^{nd}$ defendants had provided any proof that any part of the plaintiff's land is a road reserve.

He also argued that there is a strict difference between Legislating and gazetting.

That while Legislation sets out a general provision of the Law and $25$ the same provision sets out the manner in which the Law must be operationalized and that in this particular case the Law provides that a particular Road Reserve along a particular Road whether a national road or a road under a local authority must be gazetted.

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That gazetting means publication in the Uganda Gazette and that the defendants failed to provide a copy of the Uganda Gazette in which the road reserve complained about were gazetted.

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**5** *Section 1(c) of the Roads Act Cap. 358* defines a road as any way open to the public for the circulation of vehicles which is maintained by the government or an administration.

*Section 1(e)* of the same Act goes on to define a road reserve as an area declared to be a road reserve under section 2 of the Act.

**1D** <sup>I</sup> S Section 2 of the same Act provides that, the minister may by statutoiy instrument declare an area bounded by imaginary lines parallel to and distant not more than 50 feet from the center line of any road to be a road reserve and paragraph 2(a) of the Roads (Roads Reserve ) (Declaration) instrument SI 258-1 declares that, in respect of roads specified in the fifth schedule to this instrument, there shall be a Road Reserve which shall be an area bounded by imaginary lines parallel to and distant fifty feet from the centre line of any such road.

*Item <sup>1</sup> of the first schedule* provides for road reserves by imaginary lines parallel to and distant fifty feet from the centre line and in sub item (b) provides for all Roads maintained by Local .2.0 Governments of Kalangala, Kampala, Kiboga, Luwero, Masaka, Mpigi, Mubende, Mukono, Nakasongola, Rakai, Sembabule and Wakiso.

Section 14 of the Judicature Act Cap. 13 provides that,

*" subject to the Constitution and this Act, the Jurisdiction of the High* -2L-S *Court shall be;*

- *a) In conformity with the written Law, including any Law in force immediately before the commencement ofthis Act* - *b) Subject to any written Law and in so far as the written Law does not extend or apply, in conformity with*

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- $i$ The common Law and the doctrines of equity - *Established current custom or usage and* ii)

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iii) The powers vested in and the procedure and practice observed by the High court immediately before the commencement of this Act in so far as any such $5$ jurisdiction is consistent with the principles of justice, equity and good conscience.

In this case the Roads Act Cap 358, a Law which governs roads in Uganda clearly provides for the enactment of a statutory instrument to declare an area bounded by imaginary lines parallel to and $\pm \mathsf{O}$ distant not more than fifty feet from the Centre line of any road to be a road reserve and Par. 2 (a) of The Roads (Roads Reserves) (Declaration) instrument SI 358-1 clearly stipulates that the roads in the first schedule should have a reserve, which shall be an area bounded by imaginary lines parallel to and distant not more than $15$ 50 feet from the Centre line of any such road.

Item 1 of the first schedule under (b) $(v)$ it stipulates Masaka as one of the areas with a road reserve.

Court did visit the locus on the 1<sup>st</sup> day of April, 2015 and found that the suit land is 15 meters from the Centre lines of both $20$ Masaka-Nyendo Road and Masaka-Bukakata Road as the surveyors measured in the presence of both parties and their Lawyers.

In regard to the first issue, court is therefore of the considered opinion that the said construction was within the Road Reserves of Masaka-Nyendo and Masaka-Bukakata Roads since the Roads Act, $2s$ clearly stipulates the distance of the Road Reserves as 50 feet/15 metres from the centre line which the land in issue falls under.

I disregard the defendant's claim that these Roads are not gazette and dismiss it as the Law is clear as I have stated above that Roads maintained by Masaka Municipal Council fall within Road Reserves $30$

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roads are as Masaka-Nyendo road and Masaka-Bukakata maintained by Masaka Municipal Council.

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Basing on the written Law cited above, my conclusion is that the said road reserves are gazetted and <sup>I</sup> find the first issue in the affirmative that the plaintiff's land is on a gazetted road reserve.

# *That brings me to the second issue, whether the plaintiff's construction encroached on a road reserve?*

**)O** Mr. Matovu Learned Counsel for the plaintiff submitted that, the defendants failed to adduce evidence to prove that part of the plaintiff's land is a road reserve.

That as indicated under section 4(2) of the Roads Act, a road reserve in a town must be prescribed by a minister's Order or an Order of a local authority and must be gazetted and that no portion of the plaintiff's land is a gazzetted road reserve.

Mr. Matovu submitted that DW1 Senninde Steven in his evidence <sup>I</sup> 5 relied on the general provisions under section 2 of the Act and assumed that the plaintiff was entitled to observe a 15 meter road reserve which was false in view of section 4 of the Act.

Counsel therefore submitted that the plaintiff did not encroach on any road reserve *2JD*

That DW1 stated that the plaintiff left 12 to 13 meters along Masaka Nyendo Road and 12 meters along Masaka Bukakata Road. That in view of section 4, he left sufficient space for the road reserve and there is no encroachment.

In reply, Counsel for the 1st defendant contended that Masaka- -2.5" Nyendo Road and Masaka -Bukakata roads are with in the gazetted roads with prescribed road reserves.

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**8** That in the Letter from UNRA, marked exhibit 'PE7', the plaintiff was cautioned for having set his house at less than 12 meters from the centre lineof each of the Road reserves.

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That DW1 Stephen Seninde testified that the plaintiff had set his building 12m on the Masaka Nyendo road and at 9m on the Masaka $5$ Bukakata road from the construction column and this was demonstrated to court on Exhibit "PE7".

That DW1 testified further that all national roads are supposed to be 30 meters and the road reserves 15 meters from the Centre line.

That the building line is measured 3 meters from the end of the $10$ building to make 18 meters. He testified further that they measured Takaya's building and he had left 12 meters from the Centre line which meant the plaintiff's building was within and had encroached on the road reserve as well as building line and both Masaka Nyendo and Masaka-Bukakata roads are much wider than the 15 plaintiff's land title and do not form part of the plaintiff's land.

DW2B Turibarungi Augustus also testified that during one of his routine inspections of the town Developments, the $2^{nd}$ defendant established that the plaintiff had commenced construction without giving prior notice to the 2<sup>nd</sup> defendant contrary to **Rules 6, 14 &** $20$ 15 of the Public Health (Building) Rules SI 281-1.

He also stated that as the municipal Engineer his office is supposed to get this notice before a site developer can commence construction or erecting a building.

Counsel cited Rules 14 of the building rules which provides that:- $2S$

"Any person who proceeds to erect any building the plans of which have been approved by the Local Authority or who otherwise executes any work or installs any fittings to which these Rules apply shall (a) give to the Local Authority, not less than twenty four hours' *notice in writing.*"

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## And Rules 12 which provides that;

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"In certain circumstances work may be commenced before plans have been approved. If within thirty days of the receipt of any plans and notice or further particulars delivered in accordance with these Rules if the Local Authority fails to intimate to the person submitting plans, $\mathcal{S}$ its disapproval of the building or work which the person intends to erect, the person submitting the plans may proceed with the building work in accordance with the plans but not so far as to contravene any of the provisions of these Rules or other Law in force for the time $\overline{10}$ being."

$DW2B$ also testified that the building plans were withdrawn by the $2<sup>nd</sup>$ defendant because the building was set beyond the plot boundaries (the area on the title) and had thereby encroached on the road reserves and interfered with the existing storm water $15$ channel.

That this was communicated to the plaintiff through a letter from the 2<sup>nd</sup> defendant dated the 20<sup>th</sup> March, 2013 marked exhibit 'PE8'

DW2B Turibarungi Augustus illustrated that while the architectural designs in exhibit PE4 are 342.81 square meters, the plot on the deed print in the duplicate certificate of title is 220 square metres in $2\mathbb{O}$ exhibit 'PE1'.

That the architectural designs do not therefore fit the area of the plot but instead they exceeded the plotted area by 122.81 square meters contrary to Rules 32 of the Public Health (Building) Rules SI 20-1 which provides for the proportion of plot that may be built $2.5$ over.

$DW2B$ contended that from the above. the plaintiff's construction/building structure was designed in such a way that the building size exceeded/ went beyond the area on the plot/deed print in the tittle by 122.81 square meters and the plaintiff

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hoarded off the area and set his building structure in the road reserve.

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That the plaintiff's construction was beyond the building line and had encroached on the road reserve.

**s** That section 4 of cap 358 does not talk about road reserves as submitted by the plaintiff's counsel but rather building lines.

**ID** Counsel contended further that the plaintiff's land does not form part of the road reserve and therefore the plaintiffs would not be stopped from building on his land if the reverse was true but instead the plaintiff would be rightly entitled to compensation for his land if the Government seeks to use that land for road purposes rather that the plaintiff exceeded beyond his plot boundaries in setting up his structure' and encroached on the designated road reserve.

**IV** Counsel for the second defendant in reply contended that in all the communication from the second defendant to the plaintiff, specifically the letter-dated 20th March, 2014 attached to the plaint, there has not been any contention from the second defendant that the plaintiff's land was in a road reserve, but that the plaintiffs construction is beyond the acreage of land comprised in Buddu JZ. D Block 325 plot 1735 measuring approximately 0.022 hectares (220 square meters). That that fact is not in dispute and it is also not in dispute that the architectural plan that was submitted to the second defendant measures 342.81 square meters (attached to the plaint.

That the above measurements show that the architectural plan is bigger than the acreage of land and as such, the building he intended to build was meant to sit on land outside the certificate of title.

Counsel concluded that having submitted that the land comprised ^3 <5 in Buddu Block 325 of plot 1735 is situate at has a road^re^erve,

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therefore the excess of the plaintiffs building plan was set on the road reserve. And the plaintiff did not contest this which confirms that he admits having constructed outside and or beyond the boundaries of his land.

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Court also had opportunity to visit the locus on the 1st April, 2015 *E>* together with all the parties and their Lawyers. And took measurements of the land from the middle of both roads. Masaka-Nyendo and Masaka-Bukakata and as indicated in the first issue above court found that the measure of 15 metres from the middle of both roads ended in the middle of the proposed building. <sup>I</sup>

In conclusion, having listened to the submissions of both Counsel, <sup>I</sup> find that the plaintiff is the owner of land comprised in Buddu Block 325 plot 1735 measuring 0.022 hectares (220square meters).

The architectural plan the plaintiff submitted to the second defendant measures 342.8lm2 (see attachment to the plaint) <sup>1</sup>5

It is only logical to conclude that the architectural plan is bigger than the acreage of the land and was therefore meant to sit outside the measurements of the plot in the certificate of title.

Having found in issue No. <sup>1</sup> that the land comprised in Buddu Block 325 plot 1735 is situate on a road reserve and this was confirmed -2,Q) by court's finding during the visit to the locus.

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In those circumstances, <sup>I</sup> therefore find in the affirmative that the plaintiff's construction on the suit property encroaches on the road reserve.

<sup>I</sup> am fortified in my finding by *Rule 32 of the public Health (Building Rules)SI 2'81-1* which provides inter alia that,

*"In any area where no provision has been made under the Town and the Country Planning Act ; a building used or adopted or designed to be used whether wholly or partially as a dwelling shall not erected, added to or altered that more than 25 % of thepbo*


*it stands or is to stand shall be built over and no erection of any building whatsoever shall be erected, added to or altered upon any plot upon which a dwelling stands. That more than 25% of the plot shall be built over."*

Finally I have to deal with the Remedies available to the parties

## **Issue No. 3 : What are the remedies available?**

The plaintiff in his pleadings prayed for;

- as **IO** a) Payment of 510,162,000/- special damages calculated follows; - **i)** Value of land- 200,000,000/- - ii) Value of materials and equipments 97,535,000/- - iii) Advance payment 200,000,000/- - iv) Transport expenses - 627,000/- - v) Building plan approval expenses 12,000,000/-

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## **Total 510,162,000/- IS**

As regards remedies, Counsel for the plaintiff Mr. Matovu submitted that the plaintiff submitted his building plans to the second defendant and the same were approved.

He submitted further that the plaintiff commenced constructing without any interruption, without any warning that he had -2.0 encroached on a road reserve until 2nd January, 2013 when he was stopped by the second defendant without any justification because there is no encroachment on any gazetted road reserve.

That thirdly the second defendant was negligent, when it approved the plaintiff's building plan and failed to warn him about the road reserve and did not inspect the site at all until it reacted by withdrawing the building plan.

That the second defendant had no justification for confiscating the plaintiff's building materials and equipment.

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That in view of the above, he is entitled to compensation for the loss he suffered since his construction was wrongly halted. And he 5 should be paid special damages as pleaded and proved.

That if he is required to demarcate off 15m on either side of his land, the remaining piece will no longer be able to accommodate his proposed building and will not be economically viable and he is not entitled to compensation for the land.

Mr. Matovu submitted that the plaintiff adduced evidence that $|\bigcirc$ Agents of the second defendant descended on his site and confiscated all his building materials, equipment and took them to Nyendo-Senyange Division and he has never recovered the same and also that he paid the contractor 200,000,000/- and the $15$ contractor confirmed the same.

That he also paid 12,000,000/- for architectural drawings suffered transport expenses prior to filing the suit. And he should be refunded for the special damages claimed.

Counsel for the plaintiff also submitted that he is entitled to 100,000,000/- general damages and he also prayed for costs. $\mathcal{O} \subset \mathcal{L}$

In reply on special damages, counsel for the first defendant cited the Law relating to special damages that they must be strictly pleaded and proved as per *Eladam Enterprises Ltd* Vs S. G. S & others Civil Appeal No. 20/2002 at P.11, where the supreme court while quoting the case of Robert Coussens Vs Attorney 25 wherein the supreme court accepted oral General $C. A 8/99$ evidence on the figure of special damages.

As regards Land compensation, counsel contended that the plaintiff submitted that he is entitled to compensation for the loss that he suffered and that he should be compensated for the land because if $30$

he curves off 15metres on either side of his land, the remaining piece will no longer be able to accommodate his proposed building.

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Counsel contended further that evidence was led by DW2B that the plaintiff's architectural designs were to erect a building to cover 342.81 square meters yet his area of land on the deed plan/ plot is $5$ only to cover an area of 220 square meters which is contrary to Rule 32 of the building Rules.

That it means that the plaintiff's designs right from the start were an encroachment on land that doesnot belong to him and this is land that comprises the road reserve line. That by so doing the O plaintiff voluntarily assumed risk and cannot get redress from court.

Counsel contended further that an associate of the $1^{st}$ defendant had informed him that government wanted to use his land for expansion of the road but he did not adduce evidence to this effect. $15$

Counsel contended yet again that this is a case where the plaintiff is speculative and designed his case in a bid to extort money from the government (as evidenced by exhibit "PE9" dated 9<sup>th</sup> March, $2013$ ) whereby whereas the plaintiff testified that by 9<sup>th</sup> March, 2013, his materials had been taken away, in the aforementioned $20$ letter, his Lawyers never mentioned and/or made demands for materials that had been taken away. They demanded compensation for held-developments, threatened and gave an ultimatum that if the plaintiff is not compensated, he would continue with his construction.

That it proves that the plaintiff knowingly set his construction/ building encroaching on the road reserve in the hope that he would be compensated for the land and development by government and that is why in his testimony the plaintiff claimed that government was interested in his land for road expansion.

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Counsel argued that the plaintiff had to draw his designs and to erect his building in conformity with the available area in his title and cant therefore claim that he should be compensated because his designs will not fit in the area. Left if he leaves the statutoiy meters for the road reserve and the building lines. *5*

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Counsel contended that the purpose of the road reserve and building line is to ensure that there is room for future road expansion. That there is space for access of physical utilities like water, power and telephone lines that there is room for drainages and there is room for maintenance, improvement and enlargement jD and most importantly that there is a safety corridor for easy visibility of all road users and motorists.

Learned Counsel for the 2nd defendant conceded that the plaintiff's certificate of title is 0.022hectares and the architectural plans measures 342.8 square meters.

Counsel then contended that right from the commencement of drawing the architectural plans of the plaintiff. It was within his knowledge that the proposed construction would not fit on the acreage/land.

That even with the involvement of Hanks Akabwai Architects who is -2Jd bound to give technical guidance and advise. The plaintiff went a head to submit his building plan to the second defendant for approval with knowledge that the measurements of the building plan exceeded the acreage on the certificate of Title.

That the plaintiff's conduct manifests intention to defraud and indeed he did defraud when he commenced construction well knowing that the building will sit on land beyond the certificate of title. And it would therefore be absurd and an injustice if the 2nd defendant is condemned to pay damages and or compensate the plaintiff for actions he did with knowledge that they were illegal. Counsel contended that the concern of the second defendant is that the plaintiff's construction is outside his acreage and that he could rectify or redesign his building plan to ensure that it sits within the confines of his certificate of title. That this requirement does not in any way affect the plaintiff's ownership of land in issue and as such $5$ no damages or compensation of whatsoever sort is warranted. That his use of the land wasnot alienated in anyway but he was merely called upon to rectify his wrongs and illegalities.

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Counsel pointed out that although the plaintiff submitted his building plan to the second defendant for approval and it was $10$ accordingly approved he still ignored the proper procedure to follow thereafter which provides as follows;

Rule 14 of the Public Health (Building rules) SI 281-1 where it is expressly provided that any person who proceeds to erect any building, the plans of which have been approved by the relevant $15$ local authority or who otherwise executes any work or installs any fittings shall:-

- a) Give the Local Authority not less than 24 hours written Notice of the date and time at which the erection of the building or execution of the work or installation will be commenced. $20$ - b) When required by the Local Authority, immediately cease to continue the construction of any building or other work which contravenes the Rules or is not in accordance with the building plans and particulars approved by the Local $\lhd$ Authority and

Further Rule 15 of the Public Health (Building) Rules SI 281-1 which provides for inspection of works which is to the effect that, "No foundation bed, foundations, footings, damp proof course, reinforcement in reinforced concrete or drain shall be covered up until the works have been inspected and approved by an officer of the $\leq$ Local Authority duly authorized to make the inspection; provided that the inspection shall be made within three days of the receipt of the


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*Notice in writing from the owner of the building or builder, that the works are ready for inspection."*

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give any written notice That the plaintiff has not adduced any evidence to show that he observed the procedures under Rule 14 and Rule 15. He did not of the commencement of works to the 5 second defendant to enable the second defendant inspect the site but the second defendant's inspection was prompted by the plaintiff's letter dated 9th March, 2013 (exhibit PE9) Copied to the second defendant and the second defendant approved that the plaintiffs building was beyond the acreage of his land and it found it <sup>I</sup> O necessary to withdraw the building plan and request the plaintiff to halt the construction so that and accordingly asked him to redesign his plan to fit within the acreage of his land.

That the second defendant was justified to act as it did and as such no claim of damages should be levied by the plaintiff. / *5*

In rejoinder, counsel for the plaintiff submitted that according to the defendants the route- corridor is 30 meters and that the road reserve is measured at least 15 meters from the centre line. That DW<sup>1</sup> testified that the plaintiff's building left only 12 meters of road reserve along Masaka Nyendo road and only 9 meters on Masaka-Bukakata Road. That if that is the case then then the argument that the plaintiff 's building plan had 342.8 sq meters and his land title had only 220 square meters is false because if it were the case, then even the 12 meters and 9 meters left on either side of the roads would not be there.

That the most important consideration in this case is that the plaintiff submitted building plans to the second defendant.

That the purpose of submitting a building plan with all details of architectural designs is for the approving authority to ensure that the building conforms to all building requirements and regulations. 3>0


That the moment the drawings requirements are complied with. are approved, it means that all

That therefore the second defendant cannot escape the liability for its failure to warn the plaintiff that his building plans had short comings. O

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trading Centre **|O** In this case there is no contention that the plaintiff is the registered owner of a piece of land comprised in Buddu block 325 plot 1735 measuring 0.022 hectares at Masaka-Nyendo Masaka Municipality.

The plaintiff' secured approval building plans from the second defendant for a building to cover 342.81 square meters.

When court visited the locus, it took measurements with the help of a surveyor in the presence of both parties and their Lawyers it was found that the measurement of 15 meters from the Masaka-Nyendo IS and Masaka-Bukakata Road both ended at the same step meaning that the plaintiffs land was in the middle of the two road reserves. It therefore means that the land of the plaintiff which is on a road reserve doesnot exist. What is there is a road reserve. If you areto add 3 meters to the building line.

The plaintiff therefore took a risk to buy such land which is on a road reserve and there is nothing to compensate him as his actions all show that he was aware of it.

*As regards compensation for materials,* counsel for the plaintiff submitted that the plaintiff adduced evidence that the agents of the 22, S second defendant descended on his site and confiscated all his building materials and equipment and took them to Nyendo-Senyange division and he has never recovered the same and he is entitled to be compensated for them.

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Counsel for the first defendant submitted that the plaintiff in his testimony testified that 2 days after the first defendant's letter of $23<sup>rd</sup>$ January, 2013, the second defendant's officials came and carried away his construction materials and equipment.

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That in a letter written by the plaintiff's Lawyers on 9<sup>th</sup> March, 2013 $\mathfrak{S}$ marked exhibit "PE9", there was no mention and /or claim for the materials carried away from the site. That although he claims that the materials were taken away in exhibit "PE6" in a truck owned by the $2^{nd}$ defendant registered LG0003124 by policemen and some of the guards at his factory but nothing in the photos shows any men $\mathbb{1}\mathbb{Q}$ carrying away any construction materials and/or equipments from the plaintiff's site.

Counsel retaliated that the plaintiff's claim for materials is an afterthought because whereas he testified that by 9<sup>th</sup>March 2013 his materials had been taken away in a letter marked as exhibit IS "PE9" his Lawyers never mentioned and / or made any demand for materials that had been taken away but rather they demanded for compensation for land developments threatened and he gave an ultimatum that if the plaintiff is not compensated, he would continue with his construction.

In respect to the claim for materials therefore, I find that there were inconsistencies and contradictions in the evidence regarding which materials were taken as he first testified that after the 1<sup>st</sup> defendant's letter of $23^{rd}$ January, 2013, the $2^{nd}$ defendant's officials carried away his property, he also did not adduce $25$ came and evidence to prove what materials and equipment were carried and taken away and the costs as required in respect of special damages, in the case of Eladam Enterprises (supra) although I believe that construction materials can be loaded into a truck such as the one cited above. $\leq 0$


<sup>I</sup> find that that claim is not justified as it has not been specifically proved;

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200,000,000/- to the contractor, transport- counsel for the plaintiff submitted that the plaintiff also adduced evidence to prove that he paid the contractor 200,000,000/-and the contractor confirmed the 5 same.

Counsel for the plaintiff submitted that the plaintiff paid 1,200,000/- for the architectural drawings, he suffered transport expenses prior to filing the suit and the Honorable court should reimburse the plaintiff for the special damages claimed. <sup>I</sup> O

Counsel submitted further the defendant's cannot escape liability for having looked on as the plaintiff was incurring expenses on constructing only to stop him after he had incurred expenses.

That the 2nd defendant cannot escape Liability having failed to take action after receiving the 1st defendant's Letter of 23rd Jamiary, |S 2013 and waited until 9th March, 2013 when it withdrew the plaintiffs building plans.

That the plaintiff's building is so strategically located along Masaka-Nyendo and Masaka-Bukakata roads that none of the 1st and 2nddefendant's staff could have missed seeing it as the construction works commenced.

On his part, the 1st defendant contended that the 1st defendant never stopped the plaintiff from constructing on his land.

The 1st defendant was acting within the Law when it wrote a letter to the plaintiff cautioning him not to erect his construction within the road reserve.


The lstdefendant did not in any way refuse or stop the plaintiff from continuing with his construction and the 1st defendant cannot be held responsible for the acts and omissions of the plaintiff.

Notwithstanding the above, if his plans were withdrawn, he did not engage Masaka Municipal council to an amicable solution as to how 5 to either readjust the architectural designs and to take measurements at the site to establish how the plaintiff could carry on with his construction without abusing any Law and Rules.

<sup>I</sup> have looked at the claim for materials of 200million shillings and advance payment to the contractor. Although the plaintiff brought |T2) the contractor to Confirm the same and this was not challenged by the defendants.

<sup>I</sup> therefore find that whereas he pleaded special damages, he did not strictly prove them and thus is not entitled to any damages; special or general or otherwise.

**On the remedies,** the 2nd defendant contended that it is not disputed that the plaintiff's certificate of title in respect of the suit land is 0.22 hectares .

That right from the commencement of drawing the architectural plan so the plaintiff, it was within his knowledge that the proposed -2.0 construction would not fit the acreage/land despite the involvement of a professional (Hans Akabwai Architects) who is bound to give technical guidance and advise.

The plaintiff went ahead and submitted his building plan to the 2nd defendant for approval with the knowledge that the measurements on the building plan exceeded the acreage on the certificate of title.

That the plaintiff's conduct manifests intention to defraud and he did when he commenced construction well knowing that the building would sit on land beyond the certificate of title and it

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would be absurd and injustice if the $2^{nd}$ defendant is condemned to pay damages and /or compensate the plaintiff for actions he did with knowledge that they were illegal.

That the concern of the $2^{nd}$ defendant is that the plaintiff's construction is outside his acreage and that he should rectify and $5$ /or redesign his building plan to ensure that it fits or sits within the confines of his certificate of title and although he submitted his building plans to the $2^{nd}$ defendant for approval and the same was accordingly approved, he ignored the procedure to follow thereafter.

In Rule 14 of the Public Health (building) Rules SI 281-1 which $\bigcap$ enjoins anyone to proceed to erect to erect building plans of which have been approved by a local authority or executes any works or installs any fittings to give the Local Authority 24 hours written Notice of the date and time of the erection of the building or the execution of the work or installation will be commenced and cease $15$ when required to do so including R.15 of the same building Rules which provides for inspection works which provides that, no foundation bed, foundations, footings, damp proof course, reinforced concrete or drain shall be covered up until the works have been inspected, approved by an officer of the Local authority $20$ dully authorized to make the inspection provided the inspection shall be made within three days of the notice in writing from the owner of the building or the builder that the works are ready for inspection.

That the plaintiff hasnot adduced evidence to show that he $25$ observed the procedures in Rules 14 & 15.

That he did not give Notice of Commencement of work to the 2<sup>nd</sup> defendant to enable the 2<sup>nd</sup> defendant inspect the site but inspection was prompted by the Letter of 9<sup>th</sup> March, 2013(exhibit "PE9") copied to the 2<sup>nd</sup> defendant where they found the plaintiff's $\leq$ 0 building was beyond the acreage of his land and they found it necessary to withdraw the building plans and request the plaintiff

Hlmi

to halt the construction and accordingly requested him to redesign the plan to fit within the acreage of his land.

That from the above the second defendant was justified to act as he did and as such no claim for damages should be levied by the plaintiff. $\varsigma$

For materials should be dismissed with the contempt it deserves as the allegations that building materials were confiscated are baseless.

That the plaintiff testified that at the time of taking the materials, he hadnot yet received any communication from the second $\bigcirc$ defendant about his alleged construction and that it was after the incident that he approached the $2<sup>nd</sup>$ defendant.

That the second defendant on his part did not admit taking the said materials. That it was an assumption that has not been approved $\mathcal{I}$ by the plaintiff.

## Architectural drawings

The plaintiff claimed he paid 12 million for the architectural drawings.

I have looked at the drawings which are not complex at all and I have consulted architects on the probable cost of drawing such a $20$ plan and they are of the opinion that such a plan cannot cost such an exorbitant amount. The least which one can charge for is about ( 5) million shillings. And since the plaintiff has not brought proof of that figure, I am compelled to grant him damages of five million 25 shillings for the drawings and approval.

The plaintiff also claimed 97,535,000/-the value of the materials and equipment.

Filler

 When court visited the locus, it saw some work having have been done so the claim for 97,535,000/- for materials and equipment is justified.

## **Transport**

The plaintiff also claimed 627,000/- for transport to the site since $\zeta$ work was done on the site court approves the cost of 627,000/- for transport to the site.

Court did find that the work had commenced and the materials for it must have been transported to the site.

Court is therefore of the opinion that the plaintiff had proved on a $\bigcap$ balance of probability that he did incur transport costs to ferry materials to the site and the $627,000$ /-the cost of the materials is therefore proved.

## Advance payment to the contractor.

The plaintiff also made a claim of 200,000,000/- as advance $\leq$ payment for the contractor. The contractor was in court and confirmed that $200,000,000/-$ as advance payment for work.

Both defendants contested this money and when court visited locus it found that some work had been started on the site and finds that it is probable that this money was advanced and passes this $20$ amount for the advance payment to the contractor.

## Value of land

The plaintiff claimed for special damages of $200,000,000/(200m)$ for the value of the land.

Alphin


Although he claims that he should be compensated with 200,000,000/- that is just an arbitrary figure since there was no valuation of the land.

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Counsel submitted that if he is required to demarcate 15 meters on either side of his land the remaining piece will no longer be viable to 5 accommodate his proposed building and will no longer be viable to accommodate his proposed building and will not be economically viable and he is entitled to compensation for the land.

<sup>I</sup> have read the evidence on record and the submissions of both counsel.

The plaintiff is the registered owner of land comprised in Mailo register Block 325 plot 1735 measuring 6.022 hectares at Kasana-Nyendo trading centre-Masaka Municipality which he acquired for purposes of constructing a commercial building thereon (as evidenced by his certificate of title (Annexture "A" on the court IS record).

**-2.0** The two roads the Masaka-Nyendo and Masaka-Bukakata were there before the plaintiff acquired his title. So by the time he got it, he ought to have known that his land was on a road reserve and he ought to have made inquiries before concluding the purchase.

<sup>I</sup> dismiss his contentions that the defendants ought to have advised him as an afterthought.

In any case, by the time the necessary Law was in place and ought to have known that constructing on a road reserve is illegal. He ought to have sought advice from his architect and the technical staff of the second defendant.

Besides that even if he did not know the Law, it is trite Law that ignorance of the Law is not a defense.


In this case, the plaintiff therefore took the risk to acquire this land for constructing a commercial building when he knew that it was a road reserve.

On top of that neither the defendants have shown any interest to take over his land. All they are telling him is that he is constructing $5$ on a road reserve and his building which requires more land than the available space should either be redesigned to fit the area available while observing the relevant rules like the public Health (Building) Rules and the Road Reserves (Road Reserves) $\mathcal{O}^{\dagger}$ (Declaration Rules SI 258-1 of the Roads Act.

If the plaintiff is fixated on constructing a commercial building of that magnitude then he should have got a piece of land elsewhere which would accommodate his architectural plans.

I do agree that the plaintiff all along set out to defraud the government by acquiring land in a road reserve, drawing plans $\vert S \vert$ whose designs was over and above the available land and when to stop, he did not even complain about the materials but demanded that he be compensated or he continues with the construction which he did and by claiming that he was told by someone he did not name that he heard officials of the first defendant say they will $2\mathbb{O}$ get the land for a road. $\frac{1}{2}$

The above all show that the plaintiff set out to acquire the land for speculative purposes and he cannot use court to condone this illegal acts, by seeking for compensation.

None of the defendants have appropriated or intend to appropriate $25$ his land which he can use for other commercial purposes like expanding the current washing bay which is on it.

Looking at those circumstances and considering that the claim has not been proved court disregards this claim for compensation for 30 the land.


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In conclusion therefore, court finds that the plaintiff had proved the following special damages,

| a) Advance payment to the contractor $\blacksquare$ | $\alpha \in \mathcal{A}^{\infty}$ | $200,000,000/-$ | |-----------------------------------------------------|-----------------------------------|------------------| | b) Cost of the plan- | | | | c) Building plan approval expenses | $\tilde{\phantom{a}}$ | $12,000,000/-$ 5 | | d) Value of materials and equipment | | 97,535,000/- | | e) Transport expenses | | $627,000/-$ | | | | |

**Total costs**

$\mathbf{r}$

316,162,000/-

## General damages

The plaintiff claimed that he is entitled to $100,000,000/-(100m)$ [O shillings general damages for trespass and or deprivation.

That is evidence that the plaintiff had bought land to construct a commercial building measuring 0.22 hectares.

He had architectural plans drawn which covered an area which was 15 over and above the acreage available.

The architectural plans were approved by the $2^{nd}$ defendant.

The plaintiff then went ahead and contracted a company to carry out the construction.

He bought the materials and equipment which he ferried to the site 20 and started construction.

Later the $1^{st}$ defendant wrote to him bringing to his attention the fact that his site was encroached on a road reserve.

The $2^{nd}$ defendant's Engineers on an inspection of the site found that the construction was over the acreage in land in the title.


fell

The plaintiff was directed to stop and redesign the building to fit the available space and the 2nd defendant's officials went to the site in their motor vehicle and removed his materials and equipment.

He did not at first complain about the materials but threatened that if he is not compensated for the developments and land he would continue with the construction which prompted the 2nd defendants to confiscate his materials.

**ro** <sup>I</sup> have already found that the plaintiff took the risk to construct his building on a road reserve which was illegal and court can't compensate him as it cannot condone illegal actions.

Never the less, the 2nd defendant cant a void responsibility as it abated the actions of the plaintiff when they approved his plans in spite of the technical staff at their disposal who could have guided and advised them that the architectural designs of the- plaintiff were larger than the acreage or land available in his title and would <sup>|</sup> contradict the Building Rules 32 regarding the area which a developer is supposed to utilise while constructing. It is required that not more than 25% of the land area should be taken by the construction and the plot was on a road reserve.

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If the plaintiff had been properly guided by the officials of the 2nd -2.0 defendant and they were not negligent in approving his plans which they should not have done, he would not have incurred the expenses he did.

They were even so negligent to the extent that they left him to start construction and only jumped in to stop him when the 1st defendant observed that he was encroaching on a road reserve.

They then went to inspect the site and found the plan was over the available land in the title and advised him to adjust his plan to fit the available area, then went on to confiscate his materials and equipment using their garbage truck which was pictured and <50 displayed in court.

Although they contend that the garbage truck could not have ferried the materials, <sup>I</sup> have observed this type of truck doing work in the municipality and it is clear that it can be adjusted to create room for carrying materials like iron sheets and other mechanic materials. S'

<sup>I</sup> have already found that the plaintiff should not be compensated for various terms of special damages.

However in the case of general damages, <sup>I</sup> find that the plaintiff suffered as a result of the negligent acts of the officials of the 2nd defendant in approving his plans leaving him to commence /O construction and then confiscating his materials and equipment but since the construction was being done illegally, on a road reserve, they had a right to enter and confiscate the materials as the plaintiff threatened to continue with the- construction if he is not compensated and he is not entitled to any damages as there *was* no trespass.

In that respect, <sup>I</sup> grant the plaintiff general damages of fifty million shillings (50,000-,000/-) instead of lOOmillion shillings to take into account the fact that his actions in constructing on a road reserve were illegal but he incurred expenses because of the actions of the 2J3 2nd defendants officials who should therefore be responsible for any costs he incurred.

In view of the above, court enters judgment against the 2nd defendant for:

Payment of;

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- a) 316,162,000/- million special damages - b) General damages of 5o million shillings - c) Interest on (a) above at 30% from 23/l/2013and on (b) at court rate from the date ofjudgment until payment in full - d) The 2nd defendant is also to pay costs of the suit.

I


The parties have a right to Appeal.

Present

- 1. LubowaRacheal for the $2^{nd}$ defendant - 2. Mugera Lule Constat the Law Enforcement office Masaka Municipal Council $\subset$ - 3. K. Edward D. T. C Masaka Municipal Council. - 4. TakayaFrank the plaintiff.

Dated this ... $6^{11}$ ...................................

Hon. Lady Justice Margaret C. Oguli Oumo

(Judge)

S.

Filhu

$\mathcal{L}\mathcal{O}$


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