[2025] UGHCCD 25

## **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (CIVIL DIVISION) CIVIL SUIT NO. 093 / 2023**

#### **ADONG RAFELLA (Suing through her lawful Attorney GUNTER PIBER)::::::::::::::::::::::::::PLAINTIFF**

#### **VERSUS**

## **UGANDA ELECTRICITY TRANSMISSION COMPANY LIMITED ::::::::::::::::::::::::::::::::::::::::::::::::::::DEFENDANT**

**BEFORE:** *HON. JUSTICE SSEKAANA MUSA*

#### **JUDGMENT**

The plaintiff brought this suit against the defendant for the commissions and omisions of its employees or officers during the implementation of the Mutundwe - Entebbe 132 KV transmission line and substation project when they allegedly alienated part of her land without adherence to the Constitution and other relevant Statutory provisions.

The Plaintiff sought the following remedies;

- *a) A declaration that the defendant is in breach of the plaintiff's right to own property as enshrined under Article 26 of the Constitution of the Republic of Uganda 1995 (as amended).* - *b) A declaration that the defendant is in breach of their statutory mandate, power and authority.* - *c) A declaration that the Defendant is a trespasser and is continuing to trespass on land comprised in Block 382 Plot 175 at Mengo, Busiro, Nalubudde measuring approximately 2.023 hectares.*

- *d) A permanent injunction restraining the defendant and its agents from trespassing on the suit land.* - *e) Exemplary and Punitive damages.* - *f) Aggravated damages.* - *g) General damages.* - *h) Costs of the suit.*

During the scheduling conference, the parties agreed on the following issues

# *1. Whether the Defendant violated the Plaintiff's right to own property as enshrined under Article 26 of the Constitution of the Republic of Uganda (as amended)?*

- *2. Whether the Defendant breached its statutory mandate and authority by failing to adhere to the procedures enshrined under the law?* - *3. Whether the Defendant is a trespasser on the suit land?*

## *4. Remedies available to the parties?*

The plaintiff was represented by *Mr. Ssemambo Rashid, Mr. Lukwago David and Mr. Wasswa Kassim Sensalo* of *Ssemambo & Ssemambo Advocates* whereas the defendant was represented by *Ms. Dorothy Bishagenda and Ms Patience Nuwagaba* both *in-house Counsel* of the Defendant.

The parties led evidence of one witness each and after the hearing, court directed them to file written submissions which they accordingly filed. Court has considered the same in writing this Judgment.

#### *DETERMINATION OF ISSUES*

*Whether the Defendant violated the Plaintiff's right to own property as enshrined under Article 26 of the Constitution of the Republic of Uganda (as amended)?*

Counsel for the plaintiff submitted that the plaintiff is the registered proprietor of the suit land and that resultantly, their right to own property is guaranteed under the Constitution of the Republic of Uganda 1995 (as amended).

Counsel further submitted that since the defendant installed high voltage electricity transmission wires over the suit land without first complying with Article 26 of the Constitution, it was in violation of the plaintiff's right to property as enshrined therein. Counsel relied on the case of *UGANDA NATIONAL ROADS AUTHORITY Vs. IRUMBA ASUMANI & ANOR, SUPREME COURT, CONSTITUTIONAL APPEAL NO. 2 OF 2014* to support their argument.

Counsel further relied on PEX 4, a letter from the plaintiff's lawyers written on the 5 th day of October 2021 demanding that the defendant desist from any further implementation of their anticipated operations being undertaken without her consent but the same was ignored.

On the other hand, counsel for the defendant submitted that the defendant adhered to all legal proceduresin acquiring the land in question as enshrined under Article 26 of the Constitution (as amended). Counsel further submitted that Article 26 provides for specific exceptions under which property can be lawful deprived, including, where such deprivation is necessary for public use.

Counsel submitted that according to Statutory Instrument No. 79 of 2016, the Land Acquisition (Mutundwe - Entebbe 132 KV Transmission line and Substations) Instrument, 2016, the parcels of land described in Part 1 thereto were officially designated as required by Government for a public purpose and as such, the acquisition of the Plaintiff's land, was not only justified, but also necessary for public use.

#### *Analysis*

It is not in dispute that the plaintiff is the registered proprietor of land comprised in Busiro, Block 382 Plot 175 at Nalubudde measuring approximately 2.023 hectares. It further is not in dispute that while implementing the Mutundwe - Entebbe 132 KV Transmission line and Substations, part of the plaintiff's land was affected rendering it unusable.

The right to property is enshrined as correctly stated by both counsel for the Plaintiff as well as for the Defendant, under Art. 26 of the Constitution of Uganda 1995 ( as amended).

### *Art. 26, provides;*

*Protection from deprivation of property*

- *1) Every person has a right to own property either individually or in association with others.* - *2) No person shall be compulsorily deprived of property or any interest in or right over property of any description except where the following conditions are satisfied;* - *a) The taking of possession or acquisition of property is necessary for public use or in the interest of defense, public safety, public order, public morality or public health; and* - *b) The compulsory taking of possession or acquisition of property issued under a law which makes provision for-* - *i)Prompt payment of fair and adequate compensation, prior to the taking of possession or acquisition of the property, and* - *ii)A right of access to a court of law by any person who has an interest or right over the property.*

A clear reading of the provision confirms that the right to property by an individual, singularly or collectively isrecognized in Uganda. The provision further provides for compulsory acquisition of such private property but only in exceptional circumstances. It further requires that the compulsory acquisition should stem from a law that makes provision for prompt payment of fair and adequate compensation, prior to its acquisition.

From the evidence on record, it is not in dispute whether or not the reasons for the compulsory acquisition met the Constitutional standards of public use etc.

The dispute is whether a prompt payment of fair and adequate compensation, prior to its acquisition in accordance with the relevant operative law, was done.

In *UGANDA NATIONAL ROADS AUTHORITY V. IRUMBA ASUMANI & ANOR* cited above, court observed,

*"… whereas Art. 26 was not among the non-derogable rights, this does not give powers to government to compulsorily acquire people's land without prior payment and that such planned Government projects do not fall under the exceptions of disasters and emergencies"*

Both counsel, correctly in my view, refer to the Land Acquisition Act. Cap 235 as the operative law on how private property may be compulsorily acquired. Accordingly, Counsel for the Plaintiff asserts that the procedures therein were not followed and on the contrary, counsel for the Defendant, maintains that the Defendant followed all legal procedures to compulsorily acquire the affected land for the said project.

For the Plaintiff, counsel relied on PEX 4 which is a letter written by the Plaintiff's lawyers to the Defendant on the 5 th day of October 2021. It reads in part;

*"Our said client is the registered proprietor….*

*As you are definitely aware, it has come to our client's attention that Uganda Electricity Transmission Company (UETCL) has commenced an operation to install pylons onto our client's said land without her knowledge, consent, approval or compensation as required under the law…*

*BE INFORMED therefore that your impugned actions are heedless, illegal, unconstitutional, tortious in nature, amount to trespass of our client's land and a violation of our client's private right to property…*

*The purpose hereof is to demand that you immediately halt the impugned illegal acts to allow room for the compensation process of our client to commence in accordance with the law lest we commence a civil action against you…"*

The foregoing letter was received by the defendant on the 5 th day of October 2021 and this is undisputed. Nonetheless, the defendant continued with the project without prior interaction with the Defendant.

For the defendant, Counsel in their submissions, argue that the letter referred to the intention to install pylons which pylons were never installed onto the Plaintiff's land at all and that the land is in fact only affected by the high voltage electricity wires strung and passing above the Plaintiff's land. The argument that the Plaintiff was not a Project Affected Person is not sustainable because as observed from the visit of the locusin quo, a part ofthe Plaintiff'sland was affected by the high voltage wires strung above it and thereby rendering it unusable by the Plaintiff.

Furthermore, a close reading of the Defendant's Written statement of Defense gives about five (5) opposing / alternative defenses to the plaintiff's claim.

*Firstly, that all Project Affected Persons(PAPs) were compensated and therefore the Plaintiff is not entitled to any compensation from the Defendant.*

*Secondly, that the Plaintiff's land is not affected by any of the Defendant's projects and that there are no electricity lines allegedly going through the Plaintiff's land.*

*Thirdly, the predecessor in title was compensated for the alleged affected portion of the suit land.*

*Fourthly, that the Plaintiff's alleged interest was acquired subject to that of the Defendant.*

*Fifthly, that the Plaintiff was an absentee landlord who could not be traced at the point when all affected persons were being compensated.*

These alternative defenses in my view are neither helpful to Court nor to the Defendant itself. It gives an impression of evasiveness which contravenes Order 6 Rule 8 of the CPR that requires denial to be specific. The purpose of a written statement of defense is to intelligibly answer in concise and precise terms the allegations presented in the Plaint.

Indeed if any of the defenses was factually accurate, the defendant would have submitted evidence in support thereto, for example, evidence of payment of the alleged compensation to the plaintiff or her predecessor in title but not mere sweeping statements.

The defense that the plaintiff's predecessor in title was compensated is also untenable since PEX 2 which is the plaintiff's certificate of title clearly shows that she was registered on the said title on the 4th day of June 2015 way before the project was ever gazetted in S. I 79 / 2016. How then could the predecessor in title have been compensated when the affected lands were only captured in 2016 when the Plaintiff was already the registered proprietor?

All the defenses are furthermore at cross purposes with each other and cannot be simultaneously maintained.

Nonetheless, on Page. 4 paragraph 2.8 of the defendant's written submissions, counsel state that prior to installing the transmission wires, the Defendant duly assessed and offered a compensation package of UGX 198,848,000/- (One hundred and ninety eight million, eight hundred and forty eight thousand shillings only), but which the plaintiff rejected.

Importantly, is that DEX1 which is the defendant's supplementary valuation report from which this compensation award is derived is dated August 2023. The offer to the Plaintiff is contained in a letter to her lawyers dated the 1st day of September 2023. For cross reference, this suit was filed in March 2023 and by then, the high voltage wires were already strung over the Plaintiff's land.

From a chronology of the events, it is clear that by the time, the defendant purported to make a compensation proposal, the offending high voltage electricity lines were already strung above the suit land and no PRIOR compensation had been made as required by law. The locus in quo visit undertaken on the 28th day of June 2024, clearly shows the adjacent pylons to the plaintiff's land and the area affected by the over passing high voltage electricity wires.

More still, PEX 4 in my view, was sufficient notice to the defendant to engage with the plaintiff as required by law and failure thereby contravened the Constitution. The defendant, ought to have responded to the notification and engaged with the Plaintiff prior to the acquisition as is required by law.

I am further fortified by the holding in *UGANDA ELECTRICITY BOARD V. LAUNDE STEPHEN SANYA CACA NO. 1 OF 2020* where it was held;

# *"UEB could not just enter anybody's land without first acquiring it and paying compensation thereby contravening Art. 26 1), 2) and Art. 237 of the Constitution"*

In conclusion therefore, the failure by the Defendant to ensure that the plaintiff was compensated with a "prompt payment of fair and adequate compensation prior to the taking of possession or acquisition of the property", rendered the actions of the defendant unconstitutional and thereby violating the plaintiff's right to own property as enshrined under Art 26 of the Constitution of the Republic of Uganda (as amended).

For emphasis, the nature of the project underwent a thorough planning and implementation cycle and was not an emergency wherefore the defendant ought to have complied with the Constitutional provision failing of which, I find that the defendant breached the plaintiff's right to property as enshrined under Article 26 of the Constitution (as amended).

Accordingly, issue 1 is answered in the affirmative.

## *Whether the defendant breached its statutory mandate and authority by failing to adhere to the procedures enshrined under the law?*

Both counsel referred to the Electricity Act (as amended), the Regulations made thereunder as well as the Land Acquisition Act as the relevant statutes in this regard.

The elaborate procedures to be undertaken by a licensee in regard to the compulsory land acquisition before undertaking any action are well established under S. 71 of the Electricity Act

## *(1)If a licensee considers that he or she requires the acquisition of land,*

*or an interest in land greater than the right of use necessary for the*

*purpose of providing or maintaining electricity supply lines as provided in sections 67 and 68, the licensee may, with the approval of the authority, request action by the Minister responsible for lands in accordance with this section.*

- *(2)The authority shall not unreasonably withhold or delay its approval under subsection (1).* - *(3)The authority shall provide a copy of its approval to the Minister responsible for lands and to the owner of or the person having interest in the land.* - *(4)Where the Minister responsible for lands is satisfied that the land or interest in land isrequired for the purpose of providing or maintaining electricity supply services to the public, and that it is required in the public interest, regardless of whether the licensee is a public or private entity, the Minister shall pursue the acquisition of the land on behalf of the licensee in accordance with the Constitution, the Land Act and*

## *the Land Acquisition Act.*

The above provision indicates that at all material times, there are consecutive discreet steps that must be followed by law if the compulsory acquisition is to be lawful. These steps are mandatory and the licensee must demonstrate that they undertook them if a finding is to be in their favor.

The Electricity Act further cross references the Land Act as well as the Land Acquisition Act Cap. 226

In this regard, the *Land Acquisition Act* states;

*1)*The person with authorization from the Ministry of Lands enters the land to ascertain it suitability for public use as provided under *Section 2(1) of the Land*

#### *Acquisition Act.*

- 2)If the Minister is satisfied that government requires land, he/she issues a statutory instrument specifying location and details which are to be served on the affected persons as enshrined under **Section 3(1) of the Land Acquisition Act.** - 3)If the land is needed, the Assessment Officer causes land to be marked out and measured as stated under the **Section 4 of the Land Acquisition Act.** - 4)The Assessment officer causes the land to be published in the gazette as provided under **Section 5(1) of the Land Acquisition Act.** - 5)The Notice shall give the particulars of the land to which the notice relates and shall require all persons having an interest in the land to appear personally or by agent before the assessment officer on a day and at a time and place specified in the notice in order to state the nature of their respective interests in the land, the amount and particulars of their claims to compensation for those interests and their objections, if any, to any plan of the land as per **Section 5(3) of the Land Acquisition Act.** - 6)Notice must be served on the registered proprietors under **Section 5(6) of the Land Acquisition Act.**

7)On the day specified in the notice, the Assessment Officer proceeds to hold an inquiry into claims and objections made in respect of the land and shall make an award under his or her hand specifying the true area of the land, the compensation which in his or her opinion should be allowed for the land; and the apportionment of that compensation among all the persons as provided under **Section 6 of the Land Acquisition Act.** - 8)For the purposes of an inquiry under this section the Assessment officer shall have the same power to summon and enforce the attendance of witnesses and to compel the production of documents. - 9)Where an Assessment officer makes an award in respect of any land— he or she shall cause a copy of the award to be served on the minister and on those persons having an interest in the land as are not present personally or by their representatives when the award is made as stated under **Section 4(a) of the** - **Land Acquisition Act.** - 10) Finally, the Government shall pay compensation in accordance with the award assoon as may be afterthe expiry of the time within which an appeal may be lodged as seen under **Section 6(4)(b) of the Land Acquisition Act.**

As with the provisions of the Electricity Act, these provisions too are mandatory and meant to put into effect the Constitutional imperative under Article 26.

The onus of establishing that these discreet steps were undertaken, lies solely on the defendant upon whom the law places the burden of following them. Nevertheless, the Evidence Act is instructive on proof of an assertion.

# *S. 103 of the Evidence Act states*;

# *"The burden of proof as to any particular fact, lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact, shall lie on any particular person"*

The effect of Article 26 of the Constitution as well as S. 71 of the Electricity Act (as amended) and the Land Acquisition Act, is to place the burden on the entity compulsorily acquiring private property, to undertake the procedures established by law.

In this regard the defendant in its submissions, asserted that they undertook all the procedures established by law. To buttress their assertion, at submission, they assert that the defendant published "The Land Acquisition (Mutundwe - Entebbe 123 KV Transmission Line and Substations) Instrument, 2016 " S. I No. 79 of 2016 in the Uganda Gazette whereby all Project Affected Persons were notified, including the Plaintiff.

Counsel for the plaintiff in rejoinder submitted that whereas S. I No. 79 of 2016 provided coordinates for the land earmarked for the project, the plaintiff's land was not part of the said land to be so affected. The Plaintiff asserts that the coordinates follow a straight line and that the diversion that was introduced thereby affecting the Plaintiff's land was never part of the gazetted properties. They attach a cadastral map with the coordinates stated in the S. I No. 79 of 2016 following a straight line.

From my evaluation of the evidence at hand, I observe that indeed the Defendant chose to present and rely on only the front pages of the S. I No. 79 of 2016, without availing the entire instrument stating the actual coordinates. I find this cherry picking of evidence to be rather unfortunate and meant to deceive court with halftruths.

I am persuaded by the entire S. I No. 79 of 2016 as presented by the Plaintiff in rejoinder to the front pages by the defendant as well as the cadastral map illustrating the coordinates in a straight line and find that the Plaintiff's land was never gazetted as required by law and it was as such affected by a diversion that wasn't approved and gazetted by the Minister for Lands. This was contrary to the provisions of the law and a breach by the defendant of their statutory mandate, authority and procedure.

Furthermore, the fact that the defendant only sought to make an offer of compensation to the Plaintiff in August 2023 way after the land had been affected by the illegal diversion and way further into the pendency of this suit, without prior prompt fair and adequate compensation, confirms that the defendant breached its statutory mandate and authority by failing to adhere to the procedures enshrined under the law.

In the Kenyan Supreme Court decision *ATTORNEY GENERAL V. ZINJ LIMITED Petition 1 of 2020* court observed;

*"Any compulsory acquisition process, ought to have commenced with a requisite notice to the respondent and any other persons claiming an interest in the land. The public purpose for which the land was to be acquired ought to have been clearly stated. Most critically, the resultant acquisition ought to have been attended with prompt payment in full of a just compensation to the respondent."*

In the absence of the defendant establishing that these discreet steps were followed , I am inclined to reject their defense that they followed all legal procedures provided by law.

I accordingly find the second issue in the affirmative.

### *Whether the Defendant is a trespasser on the suit land?*

Trespass to land occurs where a person directly enters upon another'sland without permission or remains upon the land or places or projects any object upon the land.

In the Supreme Court decision in **JUSTINE E. M. N. LUTAAYA V. STIRLING CIVIL ENGINEERING COMPANY LIMITED CIVIL APPEAL NO. 11 OF 2002**, *Mulenga JSC (as he then was), stated*;

*"Trespass to land occurs when a person makes an unauthorized entry upon land and thereby interferes or portends to interfere with another person's lawful possession of that land. Needless to say, the tort of trespass is committed, not against the land, but against the person who is in actual or constructive possession of the land."*

The proprietorship of the suit land is not in dispute asthe plaintiff has at all material times been the registered proprietor of the same having been registered on the 4th day of June 2015.

Under Page 11, Paragraph 4.1 of the defendant's submissions, counsel asserts that "courts finds that the defendant cannot be declared a trespasser having followed all the procedure to acquire the land compulsorily".

From my resolutions of Issues 1 and 2 above, it is clear that whereas the defendant strung high voltage electricity lines over the plaintiff's land thereby affecting it, the same was done without following the Constitution, the Electricity Act as well as the Land Acquisition Act. The assertion by counsel, that the Defendant followed all procedure is not supported by any evidence on record and resultantly, the Defendant is liable in trespass.

The finding in issue 2 that there wasn't prior prompt adequate compensation as well as the fact that the gazette notice No. 79 / 2016 did not include the plaintiff's land only confirms that the actions of the Defendant were illegal and from which no lawful entry onto the Plaintiff's property could arise.

This leads to the finding that the defendant is in trespass of the plaintiff's land from the date of installing the high voltage electricity wires and continues to be so until the Plaintiff has been compensated in accordance with the law.

A reading of the court file indicates that the Plaint was filed on the 30th day of March 2023, further scrutiny indicates that at the time of filing, the plaintiff attached photographs of high voltage electricity wires hung over her land.

The Plaintiff further relied on the same photographs in her trial bundle marked as PEX 3 and upon cross examination, PW1 confirmed that the photographs at page 10 marked as PEX 3, were over the suit land. Indeed, the structure built thereon by the Plaintiff is vividly evident in the said photograph.

During the visit to the locus in quo, the high voltage electricity wires were clearly over the Plaintiff's land as was shown in PEX3.

Since the issue of whether or not there are high voltage electricity wires over the Plaintiff's land is confirmed and without a definite date as to when the Defendant in fact strung them, court shall consider the day the Pleadings were filed, with the relevant annextures, evidencing the trespass, as the day when the trespass commenced.

I answer the third issue in the affirmative.

#### *What remedies are available to the parties?*

### *General Damages:*

It is trite law, that any injury or loss suffered by a person either through a tortious act, omission or breach of contract, attracts redress in a court of law. The redress includes an award of damages to the extent possible as may be determined by the court. The question regarding the type, extent, and quantum of damages to be awarded, has long been settled through an array of court decisions. Among the reliefs that a court may grant upon proof of violation of a fundamental right, is an order for compensation. The quantum of damages to be awarded, depends on the nature of the right that is proven to have been violated, the extent of the violation, and the gravity of the injury caused.

Generally, damages in tort are awarded by way of monetary compensation for a loss or losses which a plaintiff has actually sustained, and the measure of damages awarded on this basis may vary infinitely according to the individual circumstances of any particular case. It is for the plaintiff to prove what loss, if any, it has suffered by reason of a tort, and when the effect of the tort is potentially adverse interference with the course of its intended business operations. The quantifiable loss must be ascertained by concrete evidence presented and should not be merely speculative. *See Yungdong Industries vs Roro Services [2006] 1 MLRG 1 SC*

Having determined that the Plaintiff's right to property had been violated by the Defendant, I similarly find that the Plaintiff is entitled to damages.

In terms of quantum, various decisions of court have held that, *The consideration for damages is that the amount awarded is neither so inordinately low nor so inordinately high that it must be a wholly erroneous estimate of the damages"* -see *Henry Hidaya Ilanga v Manyema Manyoka [1961] E. A. 705 at page 713 following Nance v British Colombia Electric Rly Co. Ltd (1951) A. C. 601.*

The South African Constitutional Court in *Ntanda Zeli Fose vs Minister of Safety and Security,1996 (2) BCLR 232 (W)*, acknowledged that compensation against the State is an appropriate and effective remedy for redress of an established infringement of a fundamental right under the Constitution, as a distinct remedy and additional to remedies in private law for damages. Further, that the comparable common law measures of damages will be a useful guide in assessing the amount of compensation, which will depend on the facts and circumstances of each case.

In this particular case, owing to the fact that the defendant violated the plaintiff's right to property as enshrined under Article 26 and having been guided by the foregoing authorities, I find that the award of UGX 100,000,000 in general damages payable by the defendant to the plaintiff is sufficient.

#### *Punitive and Exemplary Damages*:

Punitive damages, also known as exemplary damages, are the damages awarded separately from the actual damagesfrom an event. Courts generally award punitive damages only when it is determined that the defendant has acted in a particularly harmful way.

The type of harmful behavior that would award punitive damages would be serious misconduct of the defendant that was grossly and wantonly negligent or reckless. If the court determines that there should be punitive damages, the court usually awards the punitive damages on top of the initial compensatory damages. Therefore, awarding of punitive damages serves as a deterrence measure against specific misconduct. Punitive damagesindicate to the general public that the courts will not tolerate such misconduct.

Counsel for the Plaintiff prayed for punitive damages relying on *Obongo vs Municipal council of Kisumu [1971] EA 91*, where court held that;

*"It is well established that when damages are at large and a court is making a general award, it may take into account factors such as malice or arrogance on the part of the defendant and this is regarded as increasing the injury suffered by the plaintiff, as, for example, by causing him humiliation or distress. Damages enhanced on account of such aggravation are regarded as still being essentially compensatory in nature. On the other hand, exemplary damages are completely outside the field of compensation and although the benefit goes to the person who was wronged, their object is entirely punitive".*

In regard to quantum, counsel for the plaintiff further referred court to S. 89 of the Electricity Act (as amended) which provides for penalties in case of offenses under the Act, for which no penalty is expressly provided for. For emphasis, the provision states;

*"A person convicted of an offense under this Act for which no penalty is expressly provided is on conviction, liable to a fine not exceeding fifty thousand currency points or imprisonment not exceeding twelve years or both and in case of a continuing offense, to a fine not exceeding five hundred currency points for every day or part of a day during which the offense continues."*

Counsel for the Plaintiff therefore prayed that court should be guided by the foregoing provision and award an amount exceeding five hundred currency points for each day that the offense of trespass to land by the Defendant continues.

Counsel concluded this submission by praying that court finds that the defendant pays to the plaintiff a total of UGX 3,480,000,000/= being the total number of days of trespass from the 9 th day March 2023 to the 22nd day of July 2024 totaling 348 days.

Counsel further prayed that the defendant be condemned to pay further punitive damages exceeding 500 currency points for failure to comply with the provisions of the Land Acquisition Act.

On their part, counsel for the defendant submitted that this was not a proper case for the award of punitive damages. Counsel argued that the implementation of the project was done in accordance with the law and that the Minister for Lands had issued S. I No. 79 / 2016 and the same was gazetted.

Counsel further argued that subsequently, the defendant acquired land from the affected persons and that the plaintiff admitted to visiting the land only once a year (sic).

Counsel further submitted that the defendant strung over the suit land the high voltage electricity wires after the plaintiff had rejected the compensation Award of UGX 198,848,000/=.

Finally, that the defendant acted out of public interest and was not malicious, vindictive or high handed.

Counsel argued thatreference to S. 89 of the Electricity Act was misleading to court.

Punitive or exemplary damages are an exception to the rule that damages generally are to compensate the injured person. These are awardable to punish, deter, express outrage of court at the defendant's egregious, highhanded, malicious, vindictive, oppressive and/or malicious conduct. They are also awardable for the improper interference by public officials with the rights of ordinary subjects.

Unlike general and aggravated damages, punitive damages focus on the defendant's misconduct and not the injury or losssuffered by the plaintiff. They are in the nature of a fine to appease the victim and discourage revenge and to warn society that similar conduct will always be an affront to society and also the court's sense of decency. They may also be awarded to prevent unjust enrichment. They are awardable with restraint and in exceptional cases, because punishment, ought, as much as possible, to be confined to criminal law and not the civil law of tort and contract.

*Lord Devlin in ROOKES v. BARNARD* [1964] AC 1226-7 observed that punitive damages were confined in three situation: first, where there is "oppressive or unconstitutional actions by the servants of government" which covers the abuse of executive power, second, where the "defendant's conducts been calculated by him to make a profit for himself which may well exceed the compensation payable; and third, where expressly authorized by statute."

My findings on Issues 1, 2 and 3 above already show that the Defendant acted not only unconstitutionally and illegally but also wantonly and in total disregard to the well laid down procedures established by law.

Whereas in its submission, the defendant seeks to re-echo arguments to assert compliance, no evidence on record supports these submissions.

I therefore find, that this is a proper case for the grant of Punitive damages.

In regard to quantum of punitive damages; In the Unites States of America Supreme Court case of *BMW of NORTH AMERICA V. GORE* court laid down three (3) guideposts to be considered in determining the award of Punitive damages;

## *"a degree of reprehensibility of the non-disclosure, the disparity between the harm or potential harm suffered by Dr. Gore and his punitive damages award and the difference between this remedy and the civil penalties authorized or imposed in comparable cases"*

It therefore goes without saying that civil penalties as enacted in statute may be used as a guidance on the quantum of punitive damages that a court may order in a case it has found befitting case like this one.

However, my reading of the Electricity Act (as amended), shows that the relevant provision in the circumstances is **S. 83** as amended, which provides;

## *"A licensee who without lawful excuse fails to comply with any term or condition of the license commits an offense and is liable on conviction, to a fine not exceeding ten thousand currency points and in the case of a continuing contravention, to an additional fine of five hundred currency points for every day or part of a day during which the offense continues after conviction"*

From a reading of the Electricity Act (as amended), the conduct of the defendant herein, contravened the terms of their license which, as a matter of law, must be in tandem with the Act.

I find that as the plaintiff is entitled to receive five thousand currency points for the defendant's breach of their constitutional right to property as well as its breach of statutory duty. This is intended to punish and deter further breaches by the defendant in a similar manner.

The plaintiff is further entitled to ten currency points for each day that the defendant continues to trespass on their property until due compensation for the same has been made in accordance with the law. The computation for the continues trespass shall be computed from the date of this judgment.

The plaintiff further prayed for aggravated damages but I find the award of both general and punitive damages as above, to be sufficient in this regard. I shall not therefore condemn the defendant further to aggravated damages.

The plaintiff prayed for interest at a court rate on damages until payment in full. I order that the defendant shall pay interest of 6% per annum on both the general and punitive damages as awarded above from the date of this Judgement until payment in full.

In conclusion and having found the resolved issues in favor of the plaintiff, I further award her costs of the suit.

It is so ordered

*SSEKAANA MUSA JUDGE 14 thFebruary 2025*