THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

[LAND DIVISION]

CIVI SUIT NO. 73 OF 2014

GOODMAN INTERNATIONAL LTD:::::::::::::::::::::::::::::::::::::::::PLAINTIFF

VERSUS

1. ATTORNEY GENERAL
2. LUWERO DISTRICT LAND BOARD:::::::::::::::::::::::::::::DEFENDANTS

BEFORE:      HON. MR. JUSTICE HENRY I. KAWESA

JUDGMENT

The Plaintiff brought this suit against the Defendants jointly and severally for unlawful acquisition of her land comprised in LRV 4317 Folio 4 Block 650 Plots 2, Block 652 Plot 267 land at Kagoye, Bulemezi measuring 120.9 hectares (hereinafter the suit land) and seeking for;

1. Compensation for the value of the said land;
2. Special and general damages;
3.  
4. A declaration that the Plaintiff is the lawfully registered proprietor of the suit land;
5. A declaration that the forceful occupation of the suit land by claimants on orders of Hon. Nantaba Idah Erios the then Minister of State for Lands, Housing & Urban Development and Hon. Abraham Byandala, the then Minister for Works and Transport is unlawful;

1. A declaration that further orders by the said Ministers to the Plaintiff to desist from causing the eviction of the claimants constitutes illegal compulsory acquisition of the suit land.

The brief facts of this suit are that the Plaintiff is the registered proprietor of the suit land having obtained a lease thereon from the 2^nd Defendant.   The said lease was acquired by the Plaintiff for the purpose of setting up a farming and housing project.   The same was initially to run for 5 years from the 1^st October, 2010 but was later extended for 44 years starting 0ctober, 2015.  The Plaintiff’s predecessor in title is Mark II Marketing Services Ltd which had also obtained a five (5) years lease from the 2^nd Defendant in 2006.

It is the Plaintiff’s claim that upon acquisition, she took possession of the suit land and instructed surveyors who opened boundaries. That in the process of boundary opening, several people asserted claims on the vacant parts of the suit land and threatened the surveyors and her agents with mob justice. That she came to know later that the said claimants belonged to an Association in the name of Bulemezi Rice & Wheat Growers Association (hereinafter the Association) whose lease on the suit land had expired in 1983.  

Further, that the said claimants’ claims over the suit land were legitimized by the incitement of Hon. Minister Abraham Byandala and Aida Nantaba; who during the course of their duties as officers of the 1^st Defendant ordered the said claimants to take possession of the suit land. In particular, that on the 1^st April, 2012, Hon. Abraham Byandala held a meeting with the said claimants wherein he incited them to destroy concrete poles erected on the suit land and take possession thereof.  In addition to that, when she sought to cause the eviction of the said claimants, they sought the intervention of Hon. Minister Aida Nantaba also, without verifying their claims, directed them to forcefully take possession of the suit land during her visit on the suit land on the 29^th March, 2013.  Consequently, that the said claimants forcefully entered the suit land and destroyed all the fences erected thereon.

In her defence, the 1^st Defendant denies liability to the Plaintiff. She asserts that prior acquisition by the Plaintiff, the suit land was subject to unregistered interests of several claimants who were using it for subsistence agriculture. That this was well within the knowledge of Mark II Marketing Services Ltd. Further, that the Plaintiff failed to conduct a proper due diligence to establish the said claims whose claimants she failed to compensate or avail an opportunity to purchase their interests upon acquisition of the suit land.

The 2^nd Defendant admitted granting the Plaintiff the subject but; denies liability that may arise from the alleged actions of the Ministers on ground that the status of the Plaintiff’s lease was brought to Hon. Aida Nantaba’s attention, the then Minister of State for Lands, at the meeting she convened concerning the suit land. Also still, that before granting the said lease to the Plaintiff, its officials together with the Plaintiff inspected the suit land and confirmed that the same was vacant save only 10 acres which were under cultivation.

Court visited locus on the 19^th March, 2019 and confirmed that the suit land is claimed by about 2000 (two thousand) people who allegedly belong to the Association.  It was also confirmed that the vast part of the suit land is under cultivation by the said people with a few houses. The locus was, however, short-lived owing to the rowdiness of the said occupants.

The following issues were raised by the parties for determination by this Court;

1. Whether at the suit land was subject to any third party claims at the time of acquisition of the title by the Plaintiff,

1. Whether the actions of the Minister of State for Lands and Minister of Works in ordering the people to occupy the suit land was unlawful,

1. Whether the Plaintiff is entitled to compensation for the suit land,

1. Other remedies available.

At the hearing, 5 (five) witnesses were called by the Plaintiff, and 1 (one) witness by the 2^nd Defendant in proof of their respective claims. The 1^st Defendant did not call any witness.

According to PW4, Khidir Omer Mohamed; the Director of the Plaintiff Company, the Plaintiff executed a sale agreement for the suit land with Mark II Marketing Service Ltd her predecessor in title. This was admitted as PEXH1. This was confirmed by PW5, Mujuni Milton, the director of Mark II Marketing Services Ltd.

PW4 also testified that prior acquisition of the suit land, the area land committee and the Plaintiff’s officials inspected and confirmed that the same was vacant save about six (6) acres which had a sugarcane plantation belonging to Muwayire Godfrey.  That upon confirmation that the suit land was vacant, the Plaintiff company applied and was granted a lease upon payment of shs.9,450,000/- (nine million, four hundred fifty thousand shillings) as rent and premium.  A copy of the receipt for payment of premium and rent was admitted as PEXH2.  His testimony concerning the vacancy of the suit land was confirmed by PW1, Hajji Nadduli, the then LCV Chairperson of the District, who testified that before the Plaintiff was given title over the suit land, the same was inspected and confirmed vacant.

Concerning the said occupant, PW5 testified that he was compensated with shs. 3,000,000/- (three million shillings.  A copy of a compensation agreement to that effect was admitted as PEXH9.  PW4 further testified that upon acquisition of the suit land, the Plaintiff took possession land instructed surveyors who opened boundaries and planted poles concrete poles to show the demarcations of the suit land.  It was also his testimony that during the boundary opening exercise, several people belonging to the Association asserted claim over the suit land. That these alleged that they had a lease over the suit land despite there being no record of a subsisting lease in their favour.

In his testimony, PW5 testified that after the Plaintiff acquired the suit land, he was left in its care.  That the Plaintiff had fenced off about three quarters of the suit land but; that on one of the nights, Hon. Abraham Byandala convened a meeting with these claimants wherein he incited them to destroy concrete poles and take over the suit land on ground that the same was public land.  That consequently, the residents came onto the suit land the next morning and destroyed all the concrete poles claiming that the same as theirs.  The photos of destroyed concrete poles were admitted as PEXH11.  

This testimony was corroborated by PW4 who testified that the said claimants had a meeting on the 1^st April, 2012 with Hon Abraham Byandala who told incited them to take possession of the suit land.  

PW1 also testified that that the members of the Association approached Hon. Abraham Byandala, among others, who incited them on several media platforms to take possession of the suit land on ground that it was public land.  PW1 attached two copies of extracts of newspapers concerning the said incitement.  He also accused the Hon. Ministers and the current LC V Chairperson of the District of antagonizing the Plaintiff despite having helped her predecessor in title to acquire the suit land.  In further corroboration of this, PW2, an officer who investigated the suit land dispute, also testified that the residents he met on the suit land during his investigations informed him that they had approached Hon. Abraham Byandala, the area MP.   In addition to this, he also testified that during his investigations, he saw many concrete poles which the occupants confirmed to him were destroyed by them in order to protect their land.   PW2 made a report dated 17^th August, 2013, concerning his investigations which was admitted as PEXH6.

Going ahead, PW4 testified that following the above developments, the Plaintiff sought to evict the said occupants through lawful means but; that these sought the intervention of Hon. Minister Aida Nantaba who later had a meeting with them on the suit land on the 29^th March, 2013.   A copy of the letter confirming the Hon. Minister’s visit was admitted as PEXH4.   It was the testimony of PW4 that at this meeting, the Hon. Minister, without verifying the occupants’ claims, also directed them to forcefully take possession of the suit land.   This testimony was corroborated by PW5 who testified that he attended that meeting after he was summoned by letter by the Hon. Minister.  

It was his testimony that at the meeting, the Hon. Minister overruled every assertion in favour of the Plaintiff and directed the occupants to take possession of the suit land for their development.  That the Hon. Minister’s directive was made notwithstanding the Registrar of Titles’, Bukalasa, assertion that the suit land belonged to the Plaintiff.  PW5 added that after the meeting, the members of the said Association mobilized others who took possession of the suit land. In his further testimony, PW5 also testified that the Association had also instituted a suit against his company for illegal acquisition of the suit land but that this was dismissed in 2016.  A copy of the order dismissing the said suit was admitted as PEXH22.

In his testimony, PW4 asserted that the destroyed poles costed Shs.300,000,000/- only (three hundred million shillings) and; that the Plaintiff had also paid money to surveyors to carry out a survey which was frustrated by the 1^st Defendant’s agents for which the Defendants are liable for.  He also asserted that the continued occupation of the suit land by the said occupants on the orders of the Hon. Ministers has frustrated its intended use that is; operating a factory, to the Plaintiff’s detriment.

Further that even with a Court order, the said occupants shall not vacate the suit land thereby making it necessary for Court to award the Plaintiff Shs.18,200,000,000/- only (eighteen billion, two hundred million  shillings), being the market value of the suit land. The figure was reached following a private valuation conducted by PW3, Dr. Ochwo Ojomoko, a chief consultant/valuer.  A copy of that valuation report dated 8^th June, 2018, was admitted as PEX14.

This valuation report is at arms-length with another valuation report dated 9^th August, 2018, PEXH17, which PW4 testified was made by the government chief valuer for purposes of conversion of the suit land from leasehold to freehold.  This put the market value of the suit land at Shs.5,000,000,000/- only (five billion shillings).

D2-DW1, Kalema Amos, the Secretary of the 2^nd Defendant, confirmed that the 2^nd Defendant leased the suit land to the Plaintiff for an initial lease of 5 (five) years starting 2010.  He also confirmed that this lease was enlarged for another term of forty four (44) years starting 1^st October, 2015.  A copy of the lease extension was admitted as DEXH2.   He however testified that at the time of the grant to the Plaintiff the land was available for leasing subject to compensation of any occupants, if any, by the Plaintiff.   That the 2^nd Defendant is not liable to compensate the Plaintiff for any forceful occupation of the suit land whose lease is still running.

This Court visited the locus, so as to ascertain what is on the ground. Counsel for each party made written submissions in support their respective cases.  It was, however, put to my notice by Counsel for the Plaintiff that the 1^st Defendant’s submissions were filed out of time.  He urged me to disregard them on that ground.  Although, taking note of this, I shall be lenient not to disregard them considering that no prejudice would be suffered by the Plaintiff.  I however caution Counsel for the 1^st Defendant to comply with Court orders in the future.

I shall therefore consider the submissions of the respective parties during the determination of the issues raised.

Issue no 1:

Whether the suit land was subject to any third party claims at the time of acquisition of the title by the Plaintiff

To begin with, Counsel for the Plaintiff and 1^st Defendant noted rightly that the said occupant’s lease had expired. Counsel for the Plaintiff further noted that upon expiration of the said lease, the suit land reverted to the 2^nd Defendant thereby rendering the said occupants trespassers. His submission was supported with the case of Dr. Adeodanta Kekitimo & Others versus Edward Haudo Wakida CACA No.3/1997 which is to that effect.

Though admitting this, Counsel for the 1^st Defendant argued that the said occupants became bibanja holders on ground that they continued staying on the suit land following expiration of their lease in 1983.  He support of his view, Counsel for the 1^st Defendant argued as follows. He referred me first to PEXH5, a Police Report dated 16^th March, 2012, wherein it is stated that the suit land had clustered scattered occupants having seasonal crops and gardens by that date.  This fact was in fact confirmed by PW4 during cross examination when he was referred to the report.  On this premise, Counsel for the 1^st Defendant’s argued that the said occupants were members of the Association whose occupation on the suit land continued following the expiration of their lease.  He also argued that a further indication that the said occupants were in possession of the suit land, bibanja owners, prior acquisition by the Plaintiff was the fact that they instituted Civil Suit No. 90/2010 against Mark II Marketing Services Ltd, the Plaintiff’s predecessor in title, claiming the suit land.

He also argued that the Plaintiff’s witnesses also gave varying responses when questioned about this fact.  First, the Plaintiff’s witnesses were unclear when asked about whether there was a thorough inspection to confirm the absence of occupants on the suit land prior acquisition by the Plaintiff.  

He specifically referred me to the evidence of PW4 whose testimony was there was no inspection or boundary opening report made although maintaining that these were conducted. He further to PEXH19, a letter by the Plaintiff to the then LCV Chairperson, complaining about occupation of the suit land by the said claimants upon the incitement a Minister.  The said letter is dated 22^nd March, 2013.  On taking note of this date, Counsel then wondered how the said occupants could have taken over the suit land upon the incitement of the Hon. Minister whose visit according to PEXH21 was on the 29^th March, 2013.   He also argued that the variance also appeared in PW5’s testimony who stated that he had issues with squatters claiming under the Association which accused him of occupying the suit land illegally. In Counsel’s view, PW5’s concern arose before acquisition of the suit land by the Plaintiff.

Counsel also argued that PW1’s testimony was confirmatory of this fact for having stated, according to his submissions; he stated that when he went for inspection of the suit land in 2015, he found a person with papers showing that he had been given the suit land to grow rice which papers were for the expired lease.  In addition to that PW2’s testimony on his inspection of the suit land during investigations meant resistance from members of the Association, was further proof that the occupants were on the suit land prior the Ministers’ visitation of the same.   That PW2 had also confirmed this during cross examination that the bibanja holders he meant on the suit land had documentations.  Also that the occupation of the suit land was further confirmed by PEXH14 which indicates that there was a house on the suit land.

I was referred by Counsel for the 1^st Defendant to the following authorities all of which concern what constitutes lawful and bonafide occupants and their statutory protection: Article 237(8), Sections 1(e), 29(1)(b), 29(2), 29(5), 31 of the Land Act Cap 227, Section 64(2) Registration of Titles Act Cap 230, and the cases of  Bugembe Kagwa Segujja versus Steven Eriaku & Anor CS NO.202/2016, Kassim Sempebwa versus Ssewagaba Godfrey CS NO.279/2009, Kasese District Local Government Council versus  Baluku Luciano Buhaka & 4 Others HCCA NO.029/2011.

On the premise of his arguments and the said authorities, Counsel for the 1^st Defendant argued me to find that there were unregistered claims on the suit land prior its acquisition by the Plaintiff.

I took time to appreciate Counsel for the 1^st Defendant’s arguments and the authorities he referred me to although found them not helpful for the 1^st Defendant’s case considering the Plaintiff’s evidence.  The evidence of PW4, PW1 & Pw5 clearly showed that prior acquisition of the suit land by the Plaintiff, the same was inspected and found vacant.  This fact was clearly admitted by 2^nd Defendant in her WSD after pleading that the suit land was inspected and found that part of it measuring only 10 acres was under cultivation and the rest vacant. This was precisely coincidental to PW4’s testimony that about 6 acres of the suit land was under cultivation by Muwayire Godfrey.  It was the 2^nd Defendant’s case that the Plaintiff’s lease over the suit land was granted subject to compensation of occupants thereon, if any. PW4 clearly demonstrated that the said occupant was compensated and an agreement to that effect was adduced.  By compensating the said occupant, one would assume that the whole suit land was rendered free of squatters at the time of acquisition by the Plaintiff.  The evidence of PW1, PW4 and PW5 was concerning the vacancy of the suit land was unshaken by the 1^st and 2^nd Defendants during cross examination.  Considering this, I found no reason of disbelieving the Plaintiff’s case especially in the absence of contrary evidence.

I wish to add that when this Court visited the locus, the alleged occupants made it impossible for Court to establish their ownership.  What is clear is that the land is infested with occupants, and all of it (what was seen) is well being used for cultivation and residence.

These observations at the locus therefore led credence to the fact that PEXH5, which is the investigation report dated 16^th March, 2012, indicates that there were clustered occupants on the suit land, was not enough to rebut the evidence that the officers of the Plaintiff and the 2^nd Defendant inspected the same in 2011 and found only one squatter, who was later compensated by the Plaintiff.  The same is further supported by the evidence that the said occupants started laying claim on the suit land when the Plaintiff commenced her boundary opening exercise following acquisition of the suit land.

In the absence of any contrary evidence; it is my view that the Plaintiff’s evidence was sufficient notwithstanding that no inspection or boundary opening report was adduced as contended by the 1^st Defendant’s Counsel. Considering this, it then means that even at the time of Hon. Minister Aida Nantaba’s visit on the 29^th March 2013, there were some occupants on the suit land whose occupation continued following her visit. This also answers Counsel for the 1^st Defendant’s query concerning how the said occupants could have taken over the suit land following the Hon. Minister’s visit.

The testimony of PW5 concerning the members of the Association accusing him of illegally occupying the suit was misrepresented by Counsel for the 1^st Defendant.  Contrary to his submission, PW5 clearly testified that at the time Mark II Marketing Service acquired the suit land in 2006, the same was vacant and; that after that Company’s lease offer, no people occupied the suit land.  He added that it was only after the Plaintiff acquired the suit land that the said occupants started laying claim over it. Notwithstanding that the said occupants instituted a suit against Mark II Marketing Services Ltd in 2010 under their Association’s name, this is also not indicative that the said occupants were in possession of the suit land at that time.  I am also mindful that their suit was dismissed in 2016 for what of prosecution.

Additionally, as rightly stated by Counsel for the 1^st Defendant that the evidence of PW1, and PW2, and PEXH14, shows that there were squatters on the suit land; this also does not in any way reveal that these were in occupation of the same prior acquisition by the Plaintiff.  As submitted by Counsel for the Plaintiff; according to Section 106 of the Evidence Act Cap 6, the burden of proving facts especially within the knowledge of a person are upon that person. It appears to me that the fact that there were squatters on the suit land prior acquisition by the Plaintiff was within the knowledge of the 1^st Defendant.  Despite this, the 1^st Defendant chose not to call any of evidence to support her case. Considering this, I became impossible for me to qualify the said occupants as lawful or bonafide occupants, as submitted by Counsel for the 1^st Defendant.

For the reasons above, I find that there were no  third party claims on this land at the time of acquisition by the Plaintiff.

Issue No.2:

Whether the action of the Minister of State for Land and Minister of Works in ordering the people to occupy the suit land was unlawful.

It was the evidence of the Plaintiff that Hon. Minister Abraham Byandala on the 1^st April, 2012, incited the said occupants to take possession of the suit land.   It was his evidence again that when she attempted to evict the said occupants, they also sought the intervention of Hon. Minister who also further incited them in a meeting she held at the suit land on the 29^th March, 2013.   It was also the Plaintiff’s evidence that on each of the two occasions, that 02the said occupants invaded the suit land and destroyed whatever development raised thereon; and that his efforts to lawfully evict the said occupants were frustrated by the Hon Ministers’ interventions.

In her defence, both the 1^st and 2^nd Defendants denied liability for the actions of the Hon. Ministers.  The 2^nd Defendant’s denial in particular is based on the premise that she brought the status of the Plaintiff’s lease over the suit land to the Hon Aida Nantaba at the meeting she held with the residents.  This was maintained in the submissions of Counsel for the 2^nd Defendant who maintained that the 2^nd Defendant is not liable for whatever adverse actions taken by the Hon. Minister.

The evidence on record is indicative that the Hon. Ministers were aware of the Plaintiff’s right over the suit land.  Despite this, both acting under the colour of authority on their respective visits, nevertheless encouraged the said occupants to continue their wrongful actions against the Plaintiff.  By encouraging the said occupants’ wrongful occupation of the suit land, the Ministers rendered their claims appear more colourable thereby further paralyzing the Plaintiff’s efforts of redeeming her suit land.  The end of their actions was to completely exclude the Plaintiff from the use and occupation of the suit land in favour of the said occupants.

Article 26(1) of the Constitution of the Republic of Uganda, 1995, guarantees every person’s right to hold property.  According to Article 26(2) of the Constitution, such property can only be alienated by the state upon prompt payment of fair and adequate compensation prior to the taking of possession.  The procedure of compulsory land acquisition is well elaborated under the Land Acquisition Act Cap 226.  None of these laws were complied with despite the Hon. Ministers’ orders having a characteristic of alienating the suit land in the favour of the said occupants.

In urging Court to find the said Ministers actions unlawful, Counsel the Plaintiff cited the case of Abby Kasolo Kiberu vs. Hon Idah Nantaba HCMC NO. 29 of 2013.  As Counsel for the 1^st Defendant argued, I also found this case distinguishable from the instant case on ground that it concerned the legality of the Respondent’s threat to cancel the applicant’s certificate of title unlike in the instant one.  That notwithstanding the Ministers’ actions in the instant case were nevertheless unlawful given that they affected the Plaintiff’s right to own the suit land contrary to the procedure compulsory land acquisition envisaged by the above laws.

I do not agree with the 1^st Defendant Counsel’s submission that there was no evidence of incitement by the Hon. Ministers. Counsel’s contention was based on PW1’s evidence who testified during cross examination that he heard the Hon. Minister and others incite the people on media platforms despite being less concerned.  In my view, by stating that he was less concerned did not negate the testimony that he heard of the incitement. That notwithstanding, there is also uncontroverted evidence given by PW4 and PW5 to prove the incitement by Hon Minister Aida Nantaba whom they said directed the said occupants to take over the suit land.

In order to shield the 1^st Defendant from liability, her Counsel argued that Hon. Minister Aida Nantaba acted within her powers as Minister of State for Lands whose docket was competent to look into the alleged evictions of the said occupants.  Much as I agree with Counsel for the 1^st Defendant, I am doubtful whether she had power to order occupants to interfere with the Plaintiff’s quite possession of the suit land despite being advised by the area authorities to the contrary. The standard of proof in civil suits is a balance of probabilities.  The Plaintiff came to Court and presented evidence of eye witnesses who saw and heard the ministers utter the incitements.  (See PW2; Mujuni and PW; Khidir’s Omer, and Hon. Nadduli’s evidence, confirming so.

There is also exhibits; annextures ‘A’ and ‘4’ on Nadduli’s evidence which news reports are not rebutted.  This is sufficient proof that these actions by the minister took place.  Was this lawful?  She might have honestly believed in the legality of her action but that did not in any way make them lawful.  

Counsel for the 1^st Defendant further argued that the Plaintiff is still at liberty to sue the said occupants for wrongful occupation of the suit land. This argument appears legally attractive but; justly absurd considering that the suit land is now infested by over 2000 rowdy occupants who have taken possession over a time.  Directing the Plaintiff to embark on a legal expedition against the said occupants now would be pretty unjust especially so when her efforts in the past to evict the few were frustrated by the Hon. Ministers acting as such. I also note that the suit land is held in leasehold whose term has continued, and would still, run to the Plaintiff’s disadvantage.   All these are the natural consequences that have resulted from the wrongful intervention of the 1^st Defendant’s agents.   As such, it is proper, in my view, that the 1^st Defendant shoulders this burden considering that the Plaintiff’s deprivation resulted from her agents’ wrongful actions which fell within the scope of their duties.   There should be no deprivations of rights done under any colour of authority without attracting a corresponding liability.

For the reasons above, I find that the actions of the Hon Ministers were unlawful.

Issue No.3:

Whether the Plaintiff entitled to compensation for the suit land.

PW4 testified that the Plaintiff has failed to put the suit land to its use owing to the occupation of the same by the said occupants.  In his submissions, Counsel for the Plaintiff argued that the Hon. Ministers’ actions amounted to compulsory acquisition of the suit land for which the Plaintiff is entitled to compensation. He referred me to Article 26(1)(2)(b)(i) of the Constitution of the Republic of Uganda, 1995. Counsel further referred me to the case of Sheema Cooperative Ranching Society & 31 Others vs AG HCCS NO.103/2010 wherein Court found the Defendant liable for unlawful compulsory acquisition of the Plaintiff’s land that is; not following the procedure of compulsory acquisition set out in the Constitution and the Land Acquisition Act.  By holding as such, Court ordered the Defendant to compensate the Plaintiff the market value of the land. Counsel also based on the 8^th Edn., of the Black’s Law Dictionary to define compensation as payment of damages or any other act that Court orders to be done by a person who has caused injury to another.  He accordingly invited Court to find that the Plaintiff is entitled to compensation for the damage caused by the Hon. Ministers.  No submissions in reply were made by Counsel for the 1^st and 2^nd Defendants.

I have already noted that private rights can only be alienated by the State upon prompt payment of fair and adequate compensation prior to the taking of possession. See Article 26(2)(b) of the Constitution.

I have also already found that the Minister’s actions unlawful for being contrary to the procedure of compulsory land acquisition. In the circumstances, I find that the Plaintiff is entitled to compensation.

Value of the Suit land

On record are two valuation reports all adduced by the Plaintiff for Courts’ aid in the determination of this sub issue.  One was admitted as PEXH14, being private valuation by PW3 an expert at valuation dated 8^th June, 2018.  It put the market value of the suit land at Shs. 18,200,000,000/- only (eighteen billion, two hundred million shillings). The second valuation report was admitted as PEXH17, being a valuation by the Chief Government valuer dated 9^th, August, 2018. This put the market value of the suit land at Shs. 5,000,000,000/- (5 billion shillings).

Counsel for the 1^st Defendant reminded me to take note that PEXH17 was made about 2 months after the earlier valuation report. He also reminded me that the both reports do not capture the 30% disturbance allowance as provided for under Section 77(2) Land Act Cap 227.

In his submissions, Counsel for the Plaintiff invited me to award compensation based on the PEXH14 plus the 30% statutory disturbance allowance. This was sharply disputed by the 1^st Defendant’s Counsel who argued that the awarding the Plaintiff compensation would constitute unjust enrichment.  The law regarding compensation for compulsory acquisitions is based on Article 26 of the Constitution which states that;

1. “Every person has a right to own property either individually or in association with others.
2. No person shall be compulsory deprived of property or any interest in or right over the property of any description except where the following conditions are satisfied;-

(b)(i) Prompt payment of fair and adequate compensation, prior to taking of possession or acquisition of the property.

It has already been held that the minister’s action to order the people on land which is public and leased to the Plaintiff amounted to the Government, compulsorily retaking the same from the Plaintiff with whom it has a running lease of 49 years.  The government (for whom the minister is an agent) therefore is vicariously liable for her actions).  The minister’s action became permanent and the land cannot be accessed for use by the Plaintiff though he hold a legal title to it.  This is a proper case for compensation under Article 26 and Section 77 of the Land Act.

I will now consider the amounts payable. I must note that the valuation reports exhibited are based on experts opinions this being a technical matter. According to Section 43 Evidence Act Cap 6, when Court needs to form an opinion on a technical matter, the opinions of experts is relevant. Courts are however urged to receive such opinions with caution. On that note, it is quoted by Morris in Evidence in East Africa at p.94 while quoting from Woodroffe & Ameer Ali, Law of Evidence ( 4^th Edn.) p.44 that;

“The evidence of experts is to be received with caution because they may often come with such a bias in their minds to support the cause in which they are embarked that their judgments become warped, and they themselves become even more conscientiously disposed, incapable of expressing a correct opinion.”

In view of that, it was held in the case of C. D de ’Souza versus BR Sharma (1954) 21 EACA 384 by the EACA held that Court may reject an expert opinion if it finds good reason for not acting on it. In further support of this, this Court in Christopher Bamweyana vs. Herman Byanguye Civil Appeal No. 24 of 2017, quoting Kimani versus Republic (2000) E.A  417, properly stated that:-

 “ …….it  is now trite law that while the Courts must  give  proper  respect  to the opinion of expert, such  opinions are  not as it were, binding on the  Courts…..such evidence must be considered along with all other available evidence and if a proper  and cogent basis for rejecting the expert  opinion would be  perfectly entitled to do so……….”

What logically follows from these authorities is that an expert opinion must be well convincing before it can be relied upon by Court. I must add with emphasis of Section 49 of the Evidence Act which requires that that when such opinion is given, the grounds upon which it is based become relevant.  By the emphasis, I meant that a well convincing opinion is that which is supported with logical reasons.

In his testimony, PW3 stated that he considered factors such as the size of the suit land, the surrounding environments, the location, and the features thereof to reach at the figure in PEXH14. He also testified that before reaching this figure the suit land was divided into 2600 plots each valued at shs.18,000,000/- (eighteen million shillings) and; that the shs. 18,200,000,000/- only (eighteen billion, two hundred million shillings) was reached after multiplying the 2600 plots by Shs.18,000,000/- only  (eighteen million shillings).

It came to light the PW3’s conclusion lacked a logical basis after the multiplication of the said figure gave me Shs.46,800,000,000/- (forty six billion, eight hundred million shillings which is far beyond his figure. As Counsel for the 1^st Defendant, I was also not convinced that each plot of the suit land could be valued at shs.18,000,000/- only (eighteen million shillings) considering that the suit land, which is in an undeveloped location, is held by the Plaintiff in leasehold.  Basing on those reasons, I reject the Plaintiff’s valuation based on PEXH14. The evidence shows that PW2 told Court that he invested shs. 2 billion in the land and turning now on PEXH17, it was the Plaintiff’s evidence that this was done for purposes of conversion of the suit land to freehold. The assessment for purposes of conversion are usually made basis on the market value in view of Section 28(1),(2) Land Act Cap 227. No disputation was raised by the Plaintiff concerning this assessment. The same is true for the 1^st and the 2^nd Defendants. PEXH17 is self-explanatory as to the factors considered in reaching the sum of shs.5,000,000,000/- only (five billion shillings).

I already noted that its assessment was made subsequent to PEXH14.  It is to be noted that the Government Valuer is the Technical Advisor to the government on values.  Therefore, he having put the value at shs.5,000,000,000/- (five billion shillings), I find it more convincing.  I will award this value.

The said amount is awarded in addition to the 30% disturbance allowance as required under Section 77(2) Land Act Cap 227.

Issue N0.4:

Whether the Plaintiff is entitled to any other remedies available

With regard to special damages, it is trite law that these must be specifically pleaded and strictly proved.  See Robert Cuosssens versus Attorney General Civil Appeal No.8 of 1999.

The Plaintiff pleaded for Shs. 33,700,000/= (thirty three million, seven hundred thousand shilling) and shs. 300,000,000/- only (three hundred million shillings) as surveyors’ fees; and fees for boundary poles, fencing costs and other materials respectively.  There was however no evidence before me in strict proof of these losses as required by the law.  In agreement with Counsel for the 1^st Defendant, I find that the Plaintiff is not entitled to the same.  Having noted this, I shall also be unable to consider the interest claimed on these amounts.

Considering now general damages, both Counsel were alive in their submissions that these are awarded upon the discretion of Court.   In his submissions, Counsel for the Plaintiff also rightly stated that in their assessment, Court takes account of factors such as the value of the subject matter, the economic inconvenience that the injured party may have suffered, and the nature of the breach. His submission was well supported by the cases UCB versus  Kigozi [2002]1 EA 305 and Charles Acire versus Nyaana Engola HCCS No. 143/ 1993.

Having submitted as such, Counsel for the Plaintiff invited me to take note that the Plaintiff’s acquisition of the suit land was for business purposes which purpose was frustrated owing to the occupation of the suit land. Basing on what was adduced as a business plan, PEXH24, he invited me to award the Plaintiff shs.3,000,000,000/- only (three billion shillings) as general damages.

PEXH24 was authored by Kyewalabye Edward whom the Plaintiff never called at the trial. On that premise, Counsel for the 1^st Defendant contended that PEXH24 should be disregarded on ground that the author was not called for cross examination.

In his reply, Counsel for the Plaintiff argued to the contrary on ground that PEXH24 was admitted evidence. Much as I agree with the Plaintiff’s Counsel, I still believe that the Plaintiff was still under duty to called the author at trial notwithstanding that his document had been admitted for the reason that the cross examination is a right.  See Article 28(1) of the Constitution, Section 137(1) Evidence Act Cap 6.  By not calling its author, the Plaintiff deprived the Defendants of their right to cross examine him. It would be different had the author been called but the Defendants opted not to cross examine him because as such; the Plaintiff would have done all that she could to avail the Defendants the opportunity of cross examining the said author.  For those reasons, I am in agreement with Counsel for the 1^st Defendant that the exhibit ought to be disregarded for purposes of assessing the quantum of damages

That said, this does not disentitle the Plaintiff from general damages considering the evidence on record. It has been proved that the said occupants, acting under the orders the 1^st Defendant’s agents, illegally destroyed the developments that the Plaintiff had set on the suit land in preparation of her farming project.   Further, due to the reckless actions of the 1^st Defendant’s agents, it also became impossible for the Plaintiff to put the suit land to its use hence exposing her to a financial inconvenience.   This is in addition to the inconvenience she has suffered in protecting her legally recognizable rights.  All this would never have happened had the 1^st Defendant’s agents acted with regard to the law.   In the circumstance, I find that According to PW4, Khider Mohamed, his evidence shows these amounts as spent:

• Shs. 30,000,000/- (thirty million shillings) as good will
• Shs. 100,000,000/- (one hundred million shillings) (bad loan)
• Shs. 7,000,000/- (seven million shillings) paid to LuweroDistrict Land Board as premium
• Shs. (450,000/- x 5) = shs2,250,000/- only ( two million, two hundred fifty thousand shilling) ( ground rent)
• Shs. 30,000,000/- only (Thirty million shillings) (compensation for loss of income, trees etc for lost trees/wires etc. though he had put it at shs. 300,000,000/- only).

The Court therefore allows the Plaintiff to recover shs. 182,000,000/- (one hundred eighty two million shillings) in all as general damages accruing to him as shown above.

With regard to interest, this is also discretional in view of Section 26(2) of the Civil Procedure Act Cap 71.  In his submissions, Counsel for the Plaintiff invited me to award interest on the general damages awarded at a Court rate from the date of judgment till payment in full.   This was not disputed by the Defendants.

In view of this, I award the Plaintiff interest on general damages at a Court rate of 18% from the date of judgment till payment in full.

In regard to costs, it is trite law that these follow the event. See Section 27(1) Civil Procedure Act. Premised on this I award costs of this suit to the Plaintiff as against the 1^st Defendant only who is responsible for the torts herein.

The other reliefs as prayed by the Plaintiff are also granted following the resolution of the 1^st and 2^nd issues.

In the result, the Plaintiff is awarded the following orders against the 1^st Defendant;

1. A declaration that the Plaintiff is the lawfully registered proprietor of the suit land.

1. A declaration that the forceful occupation of the suit land by claimants on orders of Hon. Ministers was unlawful;

1. A declaration that further orders by the said Ministers to the Plaintiff to desist from causing the eviction of the claimants constituted illegal compulsory acquisition of the suit land.

1. An order of compensation of shs. 5,000,000,000/- only (five billion shillings) plus 30% statutory disturbance allowance.

1. Shs. 182,000,000/- only (one hundred eighty two million shillings) as general damages and interest thereon at a Court rate of 18% from the date of judgment till payment in full.

1. Costs of the suit awarded to the Plaintiff.

I so order.

……………………..

Henry I. Kawesa

JUDGE

10/05/19

10/05/2019:

Kibuuka Rashid for the Plaintiff.

Plaintiff representative Mr. Osma present

Sam Tusubira for Moureen Ijang for 2^nd Defendant.

2^nd Defendant absent.

Kibuuka Rashid:

Matter is for Judgment.

Court:        Judgment delivered to the parties above.

……………………..

Henry I. Kawesa

JUDGE

10/05/19