Uganda National Roads Authority v Nakabba and 6 Others (Miscellaneous Cause No. 95 of 2020) [2021] UGHCCD 103 (7 September 2021)

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT MASINDI

# MISC. APPLICATION NO. 0095 OF 2020 (ARISING FROM CIVIL SUIT NO. 0043 OF 2019)

# UGANDA NATIONAL ROADS AUTHORITY ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

## 1. NAKABBA SCOVIA 2. MUGABI FRED 3. MWESIGWA PATRICK 4. TUSUBIRE ANDREW 5. KYALIGONZA GEOFFREY 6. BASALIZA DEOGRATIUS 7. HARRIET TIBULIWA

**EXAMPLE 3.1.1.1.1.1.1.1.1.1.1.1.1.1.1.1.1.1.1.1**

## **RULING**

#### **BEFORE:** HON. JUSTICE BYARUHANGA IESSE RUGYEMA

- $[1]$ This is an interpleader application brought by **Uganda National Roads** Authority (hereinafter referred to as the Applicant) against Nakabba Scovia and 6 others (hereinafter referred to as Claimants/Respondents) brought under Order 34 rules 1 & 2 of the Civil Procedure Rules and *Sections 59 and 98 Civil Procedure Act* seeking for the following orders: - a. That the Applicant deposits in court, UGX 105,505,140/- being compensation sums in respect to land situate at **Kiweza**, **Kasambya Sub county, Kakumiro District** acquired for purposes of construction of the **Buhimba** - **Kakumiro road project**, being claimed by the Claimants or that court directs the Applicant as to how the said compensation sum should be disposed of. - b. That the Applicant be discharged from any liability arising out of any claim and or action for the compensation sums currently in its possession on account of the above described land, and or damages potentially arising out of the same actions.

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- c. That the Applicant be allowed to proceed with construction on the acquired right of way for the Buhimba - Kakumiro road project, on the above described land. - d. That costs of this application be provided for. - The application is supported by the affidavit of **Nambi Irene**, a surveyor $[2]$ with the Applicant wherein the grounds in support of the application briefly are: - That the Applicant is currently undertaking the process of i. construction of the **Buhimba** - **Kakumiro road project** in line with its statutory mandate under the *Uganda National Roads Authority Act* 2006, and during the process of land acquisition for the project earmarked land situate at Kiweza, Kasambya, Kakumiro District that would be affected by the project. - That the Road project land is being claimed by all the Claimants, and ii. the affected portion was valued at Ugx 105,505,140/- (One hundred and five million, five hundred and five thousand, one hundred and forty shillings only) which sum the Applicant currently holds but is constrained in determining who the rightful beneficiary of the same is. - That all the Claimants claim an interest in the suit property as owners iii. thereof and that there is a Civil Suit No. 43 of 2019 pending before this Honorable Court in respect of the same land. - That the Applicant is at a substantial risk of losing colossal sums of iv. tax payers' money in delay damages payable to the contractor on the Road project for each day that the Applicant does not accord it site for construction while the dispute of ownership of the land persist. - That as such, the Applicant's road construction project is likely to be $V$ . stalled due to a failure to pay prior compensation to the rightful

Claimant, which may result in high prolongation costs of the project to the detriment of the Government of Uganda and the tax payer.

- That the Applicant claims no interest in the compensation and that vi. there is no collusion between the Applicant and any of the Claimants. - That it is just and equitable that in the interest of justice, a public vii. project that carries with it potentially immense benefits for all Ugandans citizens should not be curtailed by the dispute of the Claimants, the application be granted. - With the consent and authorization from the $2^{\rm nd},\ 4^{\rm th},\ 5^{\rm th},\ 6^{\rm th}$ and $7^{\rm th}$ $[3]$ Claimants/Respondents, the 3<sup>rd</sup> Claimant/Respondent deponed on their behalf that it is true the Applicant is currently undertaking the process of construction of the Buhimba - Kakumiro road project in line with its mandate and part of the land affected at Kiweza, Kasambya in Kakumiro District is a subject of H. C. C. S No. 43 of 2019 at Masindi wherein they contest ownership. As a result, the $7<sup>th</sup>$ $2<sup>nd</sup>$ -Claimants/Respondents do not object the said valued sum for the project road land being deposited in this Honorable court pending the determination of the pending suit and that they do not also object to the commencement of the road project by the Applicant. - The 1<sup>st</sup> Claimant/Respondent, Nakabba Scovia whose name the valuation $[4]$ report of the Road project reflected as the owner and whose ownership is disputed by the $2^{nd}$ - $7^{th}$ Claimants/Respondents filed her independent affidavit in reply recognizing the existence of a dispute over the Road project land and H. C. C. S No. 43 of 2019 by stating that court dismissed Misc. Applications Nos. 100 and 101 of 2019 both arising from H. C. C. S No. 43 of 2019 wherein the $2^{nd}$ - $7^{th}$ Claimants were seeking orders restraining the 1<sup>st</sup> Claimant from, inter alia, receiving compensation from Uganda National Roads Authority (UNRA), the Applicant herein.

- Lastly, that the $2^{nd}$ , $3^{rd}$ and $4^{th}$ Claimants stated on oath in their witness $[5]$ statements in Hoima Chief Magistrate's Court C. S. No. 58/2017, a suit between her, the $1^{st}$ Claimant and the $2^{nd}$ Claimant over the Road project suit land that the land belonged to the $1^{st}$ Claimant's late mother Suzana **Nalugwa** to whom she is the rightful beneficiary and a holder of Letters of administration and therefore the rightful beneficiary to receive compensation from UNRA. - In essence, the 1<sup>st</sup> Claimant appeared to merely justify the Applicant's $[6]$ valuation report on the Road project land for indicating her as the sole rightful beneficiary which in my view is for the merits of the pending High Court C. S No. 43 of 2019, which is to decide who the rightful beneficiary/owner of the land is. She did not address the merits of this application.

# **Counsel legal representation and submissions:**

- The Applicant is represented by Ms. Suzanne Aisia of the Applicant $[7]$ Directorate of legal services, Kampala while the 1<sup>st</sup> Claimant is represented by Mr. Shaban Sanywa of M/s Sanywa, Wabwire & Co. Advocates, Kampala, while the $2^{nd}$ – $7^{th}$ Claimants are represented by Mr. Nkwasibwe Robinson of M/s Kasumba, Kugonza & Co. Advocates, Kampala. All the respective Counsel filed written submissions in support of their clients' cases as permitted by court. - Counsel for the Applicant submitted that the suit land being $[8]$ expropriated for the construction of the Buhimba - Kakumiro road project has been valued at Ugx 105,505,140/-, a sum the Applicant holds and for which he claims no interest except for charges and costs. - That the Applicant is obliged to pay compensation to the owner of the $[9]$ suit land before acquiring the same but in this case, there are 7 Respondents claiming adversely to one another the said sum from the

Applicant. The Applicant is willing to pay the said sum but is in dilemma as to who to pay because of the Claimants/Respondents' disputing over the suit land.

- It is for the above reason that the Applicant seek to have the $[10]$ compensation amounting to Ugx 105,505,140/- deposited in court pending the resolution of the dispute or in the alternative to have this court make a pronouncement on who the rightful beneficiary of the compensation is. - Lastly, it is contended by the Applicant that there is no collusion $[11]$ whatsoever between the Applicant and any of the Claimants. - On the other hand, Counsel for the 1<sup>st</sup> Claimant/Respondent submitted $[12]$ that there is no claim for compensation by the Claimants pending in court to merit interpleader application. Secondly, that the $1^{st}$ Claimant/Respondent is in possession, occupation and utilization of the suit land and as a result, the Applicant would only have no interest in the said sum if it had taken possession, occupation and utilization of the land. - As for the $2^{nd}$ $7^{th}$ Claimants/Respondents, their Counsel reiterated the $[13]$ $2^{nd}$ Claimant/deponent position in reply, not objecting to the application.

## **Decision of court:**

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- This application for interpleader is majorly seeking for an order that the $[14]$ Applicant deposits in court Ug. Shs. 105,505,140/- being compensation in respect to land situate at Kiweza, Kasambya Sub county, Kakumiro District acquired for purposes of construction of the Buhimba -Kakumiro Road project, being claimed by the 7 Claimants or that court directs the Applicant as to how the said compensation sum should be disposed of. - The application was prompted by the fact that upon acquisition of the $[15]$ suit land by UNRA for a road project, the Claimants disputed among Page $|5$

themselves ownership of the suit land and as a result, the Applicant rightful until the out the compensation could not pay beneficiaries/owners of the land are known. The issue of acquisition of the land for road construction and the quantum of compensation for the owners of the suit land is settled and therefore not in dispute. What is in dispute is who are the rightful beneficiaries or owners of the suit land and this seems only to likely be resolved in or by the pending H. C. C. S No. 43 of 2019.

- The issues for determination in this application appear therefore to be $[16]$ whether the Applicant's application merits interpleader proceedings and if so, the remedies for the parties. - The law in interpleader proceedings provides that where two or more $[17]$ persons claim adversely to one another the same debt, sum of money or other property movable or immovable, from another person, who claims no interest therein other than for charges and costs and who is ready to pay or deliver it to the rightful defendant, such other person may institute a suit of interpleader against all Claimants or where a suit dealing with the same subject matter is pending, may intervene by motion on notice in such suit, for the purpose of obtaining a decision as to the person to whom payments or delivery shall be made, and of obtaining indemnity for himself provided that where any suit is pending in which the rights of all parties can be properly decided, no such suit of interpleader shall be instituted (Section 59 Civil Procedure Act). - Where there is therefore, a pending suit, such suit must be dealing with $[18]$ the same subject matter as claimed in the interpleader application. Interpleader proceedings are instituted by originating summons and where there is a suit, it may instituted by Notice of motion. - In the instant case there is a pending suit vide H. C. C. S No. 43 of 2019 $[19]$ (hereinafter referred to as the **head suit**). The head suit is between $2^{nd}$ -

$7$ <sup>th</sup> Claimants (as plaintiffs) and the 1<sup>st</sup> Claimant (as Defendant) whereby the $2^{nd}$ – $7^{th}$ Claimants are claiming ownership of a kibanja measuring 20 acres in Kiweza village, Kakumiro District as beneficiaries of the late Tamale Evaristus Ssali, the father of all the Claimants. The 1<sup>st</sup> Claimant is contending that she is the rightful Claimant of the suit land and that the same does not form part of the estate of Tamale Evaristus Ssali but forms part of the estate of her late mother Nalugwa Suzana.

- In paragraphs 5 & 6 of the plaint, the $2^{nd}$ $7^{th}$ Claimants/Plaintiffs $[20]$ averred that in 2018, when UNRA began the road expansion work in Kasambya village, Kakumiro District, all property owners in the area were to register themselves for purposes of compensating of all those who would be affected by the road construction. That however, without consultation of the family members of the late Tamale Evaristus the Defendant registered herself as the sole owner of the suit land in a bid to receive the compensation. The 1<sup>st</sup> Claimant/Defendant on the other hand averred in her Written statement of defence that she is entitled for the UNRA road compensation but that the $2^{nd}$ - $7^{th}$ Claimants/Plaintiffs unjustifiably and segregatively halted the payments. - The head suit is still pending in court. However, whereas this head suit $[21]$ would decide the rights of the Claimants/Respondents in the interpleader application, it would not decide the rights of the Applicant who was not made a party to it. As a result, I find that upon the Applicant's acquisition of the suit land and assessment and determination of the compensation payable to the rightful beneficiary or owner of the suit land, the Applicant is entitled to bring this application by Notice of motion for determination of the sought orders pending the determination of the rightful beneficiaries/owners of the suit land entitled to receive the compensation in the head suit. It was a result of the wrangles among the Claimants over the suit land that the Applicant

could not pay out the compensation. It is therefore logical that the head suit (C. S No. 43/2019) first determines who the rightful beneficiary of the suit land is since the Claimants' claims are adverse to each other yet the Applicant is ready and willing to pay out the compensation.

- According to Counsel for the 1<sup>st</sup> Claimant, the subject matter in the $[22]$ interpleader proceedings is compensation while in the head suit, it is **land.** I don't think that is the correct position. - Section 59 Civil Procedure Act require an existing suit to be dealing with $[23]$ the same subject matter as the subject matter in the interpleader proceedings. In this case, I find that the subject matter of the head suit between the $2^{\rm nd}$ - $7^{\rm th}$ Claimants and the $1^{\rm st}$ Claimant and the subject matter of the interpleader proceedings between the Applicant and the Claimants to be the same because they both arise from one set of Applicant's acquisition of land and payment of transactions. compensation to the beneficiaries/owners of the land. The sole issue in both matters is who is the rightful beneficiary/owner of the suit land to be entitled to receive the compensation sum. - It follows therefore, that resolving the issue of who is the rightful owner $[24]$ of the suit land in the head suit would resolve the issue of the rightful beneficiary for the compensation sum in interpleader proceedings. - As regards whether the Applicant UNRA has any interest in the $[25]$ compensation sum, it is my view that upon acquisition of the suit land and determination of the payable compensation to the beneficiary or owner of the suit land, then the Applicant ceased to have any interest in the compensation sum irrespective of whether it took possession, occupation or utilization of the land. The land in question was acquisitioned upon determination of the payable compensation following the relevant procedures under the Land Acquisition Act Cap 226. It is

therefore not correct to say that the Applicant would only have an interest in the said sum if it had taken possession, occupation and utilization of the land. The acquisition of the land by the Applicant is not, whatsoever under any contestation.

- In conclusion, I find that the Applicant acquired the land situate Kiweza, $[26]$ Kasambya Sub county, Kakumiro District fort purposes of construction of Buhimba - Kakumiro road project. The portion of this land, now being claimed by all the Claimants was valued at Ugx 105,505,140/- and the Applicant is currently holding the sum of money for compensation of All the land. beneficiary/owner $of$ the rightful the Claimants/Respondents claim interest in the suit land are disputing over the ownership of the same. As a result, the Applicant is in dilemma as to who is the rightful beneficiary/owner of the suit land to be entitled to payment of the compensation sum. - The Applicant therefore filed the present interpleader application to $[27]$ deposit in court the compensation sums in respect of the suit land pending disposal of the head suit, C. S No. 43/2019 that will determine the rightful beneficiary/owner of the suit land. The Applicant holds the compensation sum in which it claims no interest and it is willing to pay it into court or to deal with it as court may direct. - In the premises, I find that the Applicant's application merit interpleader $[28]$ proceedings. It is competent before this court and it is accordingly granted with the following orders:- - $105,505,140/$ being 1. The Applicant deposits in court **Ugx** compensation sums in respect to land at Kiweza, Kasambya Sub county, Kakumiro District being claimed by the Claimants, but acquired by the Applicant for purposes of Buhimba - Kakumiro road project, pending the determination of H. C. C. S No. 43 of 2019

pending before this court for the rightful beneficiary/owner of the land.

- 2. The rightfully determined beneficiary/owner of the land shall be entitled to collect the deposited sum from court. - 3. The Applicant to be discharged from any liability arising out of any claim and or action for the compensation sums currently in its possession on account of the above described land, and any damages potentially arising out of the same actions. - 4. The Applicant shall proceed with construction on the acquired right of way for the Buhimba - Kakumiro road project on the above described land upon deposit of the compensation sums in court on account of the road project land. - 5. There shall be no order for costs as the orders herein are for the benefit of all the parties.

Dated at Masindi this $\frac{1}{2}$ day of $\frac{1}{2}$ , 2021.

Byaruhanga Jesse Rugyema **JUDGE**