Zaali and Another v Uganda National Roads Authority and Another (HCT-01-CV-CA-LD 13 of 2019) [2023] UGHCLD 173 (28 February 2023)

#### **THE REPUBLIC OF UGANDA**

#### **IN THE HIGH COURT OF UGANDA AT FORT PORTAL**

#### **HCT-01-CV-LD-NO. 013 OF 2019**

#### **1. ZAALI ROBERT**

**2. TUMWEBAZE EVA ::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFFS**

#### **VERSUS**

# **1. UGANDA NATIONAL ROADS AUTHORITY 2. CHINA RAILWAY SEVENTH GROUP CO. LTD :::::::: DEFENDANTS**

#### **HON. MR. JUSTICE VINCENT EMMY MUGABO**

#### **JUDGMENT**

The case for the plaintiffs as gathered from the plaint is that they are the owners of land at Rwendongo village, Kyakanyemera parish, Kahunge Sub County in Kamwenge district. (the suit land). That in or around 2017, the defendants trespassed on the suit land while they were constructing the Kamwenge Fort Portal highway and unlawfully dumped murram, unwanted soil, stones and other material rendering the suit land unsuitable for intended developments. The plaintiffs aver that the unwanted deposit on the suit land has substantially affected their use of the land and want to restore it to its original state. They pray for a declaration that the defendants are guilty of trespass, compensation to enable them restore the suit land to its original state before the trespass, general damages, mesne profits, interest and costs.

In its written statement of defence, the 1st defendant denied ever depositing any soil on the plaintiffs' land. The 1st defendant averred that it contracted the 2nd defendant to carry out the construction works on the road, it offered a right of way to the 2nd defendant to which the latter was supposed to confine the contract works, the breaches complained of by the plaintiffs are outside the right of way handed over to the 2nd defendant, and that the 2nd defendant is an independent contractor who takes liability for its acts as well as those of its agents. The 1st defendant also contends that the plaint does not disclose a cause of action against the 1st defendant and the same should be dismissed.

In its written statement of defence, the 2nd defendant denied ever depositing murram or any materials on the plaintiffs' land and as such, the alleged losses if any suffered by the plaintiffs are not attributable to the 2nd defendant.

## **Representation and hearing**

The Plaintiffs are represented by Mr. Rwakatooke Mugisa of Ngamije Law Consultants & Advocates. The 1st defendant is represented by Mr. Muhangi Henry of the 1st defendant's Directorate of Legal Services while Mr. Bwiruka Richard of Kaahwa, Kafuuzi, Bwiruka & Co. Advocates represents the 2nd defendant.

At the hearing, the plaintiff led evidence of five witnesses. The 2nd plaintiff as PW1, Joseph Bata as PW2, Lwanga Pakarazio as PW3, Nicholas Ssali Kasimbazi as PW4 and Kaganda Bob as PW5. The Defendants led the evidence of one witness each. Philip Kitimba as DW1 for the 1st defendant and Chen Hai as DW2 for the 2nd defendant. The hearing proceeded by witness statements and cross examination on the same.

At the close of the defence case, court visited the *locus in quo* on 14th October 2022, recorded evidence from some of the witnesses and made its own observations that I have taken into account in this judgment.

Advocates for both parties filed written submissions which I need not reproduce but note that they have been considered herein.

In their joint scheduling memorandum, the parties agreed to the following issues for court's determination.

- 1. Whether the defendants trespassed on the plaintiffs' land - 2. Who of the defendants is liable in the circumstance? - 3. What remedies are available to the parties?

## **Burden and standard of proof**

It is trite that in civil matters, the burden of proof rests on that person who desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he or she asserts exists and would fail if no evidence is given on either side unless it is provided by any law that the proof of any particular fact shall lie on any particular person.

See **Section 101 - 103 of the Evidence Act Cap 6.**

The standard of proof is on a balance of probabilities.

## **Court's consideration**

# **Issue 1: Whether the defendants trespassed on the plaintiffs, land**

Trespass to land occurs when a person directly enters upon land in possession of another without permission and remains upon the land, places or projects any object upon the land (see *Salmond and Heuston on the Law of Torts,* **19th edition (London: Sweet & Maxwell, (1987) 46**). As such, in order to disclose a cause of action of the tort of trespass to land, the plaintiff has to plead facts to show that; (a) he was in possession of the suit land at the time of the entry complained of; (b) there was an unlawful or unauthorised entry by the defendant; and (c) the entry occasioned him damage.

Issues 1 and 2 will be handled together

**PW1** stated that the plaintiffs are the registered owners of land comprised in Kibale Block 31, plot 25 at Rukunyu where the suit pice of land is located. That in or around 2017, the defendants trespassed on the suit land while they were constructing the Kamwenge Fort Portal highway and unlawfully dumped murram, unwanted soil, stones and other material on the land. No permission from the plaintiffs was sought to make the said deposits which has rendered the land unsuitable for development. They engaged the services of a valuer in Katuramu & Company who projected that the restoration of the land to its original state would cost about UGX 108,322,500/=. She further stated that the plaintiffs approached the defendants for an amicable settlement of the issue but in vain.

During cross examination, **PW1** stated that in the middle of her farm, there is a bridge. When the defendants were constructing the bridge, they poured materials inkling sand and stones in the land. That she was on the land about 6 years prior to the said construction. That they would also use lorries to pour the material obtained from the road construction in the farm. She did not write her complaint formally to any of the defendants until her lawyer sent them the notice of intention to sue in October 2018.

**PW2** stated that while the 2nd defendant was constructing the road, they deposited murram and stones in the plaintiffs' land. he had grown up in the village where the suit land is located. He stays about 100 metres away from the suit land and that the plaintiffs are his neighbours. After the heaping of the material on the suit land, there is one of the plaintiffs'' cows that stepped on the heap, slid and died. **PW3** is the chairperson of Rwendongo village where the suit piece of land is located. He knows that the plaintiffs used the suit land for agriculture. That during the construction of the Kamwenge-Fort Portal Highway, the defendants in or around 2017 dumped unwanted soil, murrum, stones and other material on the sui land making it unusable. He did not write any letter referring the plaintiffs to the defendants.

**PW4** stated that he was contracted by the plaintiffs to carry out a survey of the land where there was dumping of soil and murram. He employed Wemo Consultants Planning & Surveyors to determine the acreage of the affected land. **PW5** carried out the inspection and made a report under PW4's supervision. The valuation report was admitted in evidence as **Pexh4**. However, in cross examination, **PW4** stated that the valuation report was made by Bob Kaganda (PW5) who is his evaluation assistant. PW5 is not a registered valuer. PW4 did not visit the land in question and all the information was collected by PW5.

**DW1** stated that he was the contract manage on behalf of the 1st defendant in the road construction contract between the defendants. He stated that under the contract, the 2nd defendant was supposed to confine the works within the right. During the contract, the 2nd defendant removed from site spoil material and dumped the same in places that were acquired by the 2nd defendant for that purpose. It did not come to his knowledge that the 2nd defendant had deposited unwanted material on the plaintiffs' land. He further stated that under their contract, it was the responsibility of the 2nd defendant to make necessary arrangements with private parties pertinent to locations and regulations of such dumping. The contract between the defendants was admitted as **Dexh1**, general conditions of the contract at **Dexh2**, Environmental protection and waste disposal conditions as **Dexh3**. He concluded that the 1st defendant should not have been sued in the first place.

**DW2** stated that during the execution of the construction works, the 2nd defendant followed the designs provided by the 1st defendant. The road construction was completed and handed over to the 1st defendant in 2017 without any complaint from the plaintiffs. He denied ever trespassing or depositing any material on the plaintiff's land. in cross examination he stated that he has never visited the suit land.

When court visited the locus in quo, it was shown the area of dumping on the suit land. It was farm land where the materials had been dumped. Some murrum and stones were seen. A small portion of the farm land had been affected by the dumping. It is quite clear that the material complained of as being dumped on the plaintiffs' land was actually there. The only question for determination was who dumped the material on the plaintiffs' land.

From the evidence of all the parties, it was the 2nd defendant who had been contracted to construct and upgrade the Kamwenge – Fort Portal highway by the 1st defendant. The plaintiffs' witnesses have testified that the unwanted material was picked from the road construction and well as the construction of the bridge in the plaintiffs' farm.

Counsel for the 1st defendant relied on the case of *James Nambale Vs Construction Enterprises (PUT) Sarajevo Ltd HCCS No. 123 of 2000* to argue that it is a well-known rule that a principal will not be liable for the negligent acts of an independent contractor. The long and short of his submission was that the 2nd defendant was an independent contractor with the responsibility to make necessary arrangements with private parties and local authorities pertinent to locations and regulations of dumping spoil material. The 1st defendant would therefore not be liable for any claims that would emanate from such a responsibility. Counsel for the plaintiffs argued that both defendants are jointly liable and any arguments indemnity would apply as between the defendants themselves and would not affect the plaintiffs' claim against them both.

Counsel for the 2nd defendant submitted that since the 2nd defendant denied ever trespassing on the plaintiff's land, the issue liability of the 2nd defendant would arise.

Considering the balance of probabilities, the conduct of the parties' cases and their evidence tend to tilt the weight of the evidence in favour of the plaintiffs rather than the defendants. I have looked at the Environmental protection and waste disposal conditions (**Dexh3)** contained in the construction contract between the defendants, which the 2nd defendants do not deny and I can confirm the 2nd defendant had the obligation to take care of spoil material from the construction site. The relevant provision is reproduced hereunder;

## *iv. Disposal of material by removal*

*material to be disposed of by removal from the construction area shall be removed from the area prior to the completion of the work under these specifications. All materials removed shall become the property of the contractor. Materials to be disposed of by dumping shall be hauled to an approved dump. It shall be the responsibility of the contractor to make any necessary arrangements with private parties and local officials pertinent to locations and regulations of such dumping. Any fees for charges to be paid for dumping of materials shall be paid by the contractor ……*

As stated earlier, I find that it is more probable than not that spoil material was dumped on the plaintiffs' land, from the construction works executed by the 2nd defendants and that the 2nd defendant is responsible.

## **Issue 3. What are the remedies available to the parties?**

The plaintiff is successful in this suit. He made the following prayers;

- a. A declaration that the defendants trespassed on the suit land. It is hereby declared that the 2nd defendant trespassed on the suit land. - b. **Compensation** to assist the plaintiffs restore the suit land to its original state per the value in the valuation report.

Counsel for the plaintiffs sought to rely on Pexh4, the valuation report to argue that the value needed to restore the suit land to its original state before the trespass in UGX 108,322,500/=. He also submitted that the 2nd plaintiff lost her cow as a result of trespass which was estimated to be about UGX 3,000,000/=.

Counsel for the 2nd respondent stated that PW5 who made the valuation report was not a qualified valuer and the report should as such be disregarded. PW4 did not even visit the land before signing the valuation report.

I am inclined to agree with the submission of counsel for the 2nd defendant. It has been admitted by the plaintiffs' witnesses PW4 and PW5 that the valuation report was made by an unqualified and unlicenced valuer. The same may not be professionally competent to produce figures that can firmly be relied on by the court to make an award. There would therefore be no basis for an award of compensation and I decline to award the same. Any damage or inconvenience that has been suffered by the plaintiffs may well be taken care of in an award for general damages.

## **c. General damages**

General damages are usually awarded at the discretion of the court.

In the case of **Uganda Commercial Bank Vs Kigozi [2002] 1 EA 305** court held that;

*"in assessment of the quantum of damages, courts are mainly guided by the value of the subject matter, the economic inconvenience that a party may have been put through and the nature and extent of the breach or injury suffered".*

The award of general damages is normally in respect of what the law presumes to be the natural and probable consequence of the defendant's act or omission see *James Fredrick Nsubuga v. Attorney General, H. C. Civil Suit No. 13 of 1993*

A plaintiff who suffers damage due to the wrongful act of the defendant must be put in the position he or she would have been if she or he had not suffered the wrong. See **Hadley v. Baxendale (1894) 9 Exch 341; Charles Acire v. M. Engola**, **H. C. Civil Suit No. 143 of 1993** and **Kibimba Rice Ltd v. Umar Salim, S. C. Civil Appeal No. 17 of 1992**

It was submitted for the plaintiffs that considering the time lapse from the time of dumping to date which is over five years, the unwanted material must have been depressed by the seasonal rains and removing the same may require extra input. Counsel prosed a sum of UGX 75,000,000/= in general damages.

*Decision of Justice Vincent Emmy Mugabo* Page **9** of **11** On a light note, I am cognisant of the time taken by the plaintiffs to complain to the defendants of the unwanted dumping. The 2nd defendant concluded it contract obligations and handed over the finished works in July 2017 but it was not until October 2018 that the plaintiffs wrote a notice of intention to sue. Such delays sometime extend beyond the defects liability periods in such construction contracts and the same make it quite difficult to settle.

In the premises, I award UGX 20,000,000/= in general damages

## **d. Mesne profits**

There is no indication of how much the utilization of the suit land would have given the plaintiff. There is no basis for an award of mesne profits and I decline to award the same.

## e. **Interest**

The basis of an award of interest traditionally is that the defendant has kept the plaintiff out of his money, and the defendant has had the use of it himself so he ought to compensate the plaintiff accordingly see **Harbutt's Placticine Ltd v. Wayne tank and Pump Co Ltd [1970] QB 447**.

An award of interest is discretionary. Courts in determining a just and reasonable rate of interest, take into account the ever rising inflation and drastic depreciation of the currency. A Plaintiff is entitled to such rate of interest that takes into account the prevailing economic value of money, but at the same time one which would insulate him or her against any further economic vagaries and the inflation and depreciation of the currency in the event that the money awarded is not promptly paid when it falls due see **Mohanlal Kakubhai Radia v. Warid Telecom Ltd, H. C. Civil Suit No. 234 of 2011** and **Kinyera v. The Management Committee of Laroo Boarding Primary School H. C. Civil Suit No. 099 of 2013**.

Interest on general damages is awarded from date of Judgment until payment. See **Mukisa Biscuits Manufacturing Co. Ltd v. West End** **Distributors Ltd No.2 [1970] EA 469**. Counsel for the plaintiff sought a rate of 25% per annum on the decretal sums. I find this rate on the high end and I accordingly award interest at 8% on general damages, from the date of this judgment until payment in full.

In the final result, this suit succeeds and I make the following orders;

- i. The 2nd defendant trespassed on the suit land - ii. The plaintiffs are awarded UGX 20,000,000/= in general damages against the 2nd defendant - iii. Interest on general damages is allowed at 8% pa for the date of judgment until payment in full - iv. The suit is dismissed as against the 1st defendant with no order as to costs - v. Costs of the suit are awarded to the plaintiff

Dated at Fort Portal this 28th day of February 2023

# **Vincent Emmy Mugabo**

## **Judge.**

Court: The Assistant Registrar shall deliver the judgment to the parties.

**Vincent Emmy Mugabo Judge 28/02/2023**