[2024] UGHC 577

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT MASINDI CIVIL SUIT NO. 0007 OF 2023**

**APOLLO WODOKELLO LAWOKO::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF**

#### **VERSUS**

# 10 **1. ABILLI ALLAN ETOT 2. NYERO WALTER**

**3. ATTORNEY GENERAL::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: DEFENDANTS**

#### **BEFORE: Hon. Justice Isah Serunkuma.**

#### **RULING**

This ruling is premised on a preliminary objection raised by the Attorney General, hereinafter referred to as the third Defendant, to the effect that the plaintiff has no cause of

20 action against them.

The background to the raised preliminary point of law is that the plaintiff initially instituted this suit against the second and third defendants jointly and severally.

- A declaration that the plaintiff is the rightful owner of the land located in Awoo Cell, Central Ward, Dima Parish, Karuma town council, Kiryandongo district, measuring approximately 4 acres, - A declaration that the second defendant is a trespasser on the suit land, - An order directing the second defendant to compensate the plaintiff for the part of the suit land that is affected by the Karuma hydropower project before beginning their project, - 30 Permanent injunction, general damages, and costs of the suit.

According to the plaintiff, he acquired the suit land from the late Augustine Owor, a father to the second defendant, in 2004, having agreed by agreement *(Annexure "A")* to build a house for the second defendant's father as full consideration of the suit land. The plaintiff fulfilled the terms of the agreement whereby he bought land and built a house for the

second defendant's father, who immediately took possession of the same with his family, including the second defendant, in 2009. When the 3rd defendant, through the Ministry of Energy and Mineral Development, launched the Karuma Hydro Power Project Reservoir, wherein the project-affected persons were being compensated, the first Defendant started trespassing on the suit land by presenting himself to the third Defendant as the lawful owner and or claiming an interest in the same as being his late father's. On the 27th day of March 2022, the Plaintiff complained of the second Defendant's actions to the local council authorities, who, upon summoning both parties, concluded that the suit land belonged to the plaintiff as per the meeting minutes marked *Annexture "B."*

Despite the resolution of the local council authorities, the 2nd 10 defendant continued to trespass by claiming an interest in the suit land and demanding compensation from the third Defendant. That the third Defendant held a meeting with both the Plaintiff and the second Defendant in which they decided in favor of the second Defendant as per the letter dated 10th January 2023 marked *Annexture "C."* Both the second and third Defendants are in connivance with a plan to deprive the plaintiff of his right to quiet possession and compensation for part of the suit land.

On the other hand, the third defendant denied all allegations made against it by the plaintiff and instead stated that all due processes under the law for acquiring the said land were carried out in 2020-2021, including assessment of the land and properties in the 20 project area. All data was subsequently submitted to the chief government valuer for approval before compensation and acquisition.

According to the Chief Government Valuer's report, the second Defendant was enlisted as the project-affected person with reference number **KIR/MUT/AWO/013.** At the time of the disclosure exercise, one Winnie Lawoko complained that the suit property had been given to the 2nd defendant erroneously, thus halting the process and leading to compensation in a bid to resolve the grievances raised. To resolve the grievance between the plaintiff and the 2nd defendant by the Sub-County Level Grievance Resolution Committee on the 16th

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day of March 2022, it was unanimously decided that the suit land belonged to Winnie Lawoko.

However, on appeal to the district committee level of the grievance resolution committee by the 2nd defendant, a decision was made in favour of the 2nd defendant. That there has not been any payment made to any of the parties, nor any connivance with the 2nd defendant.

It was on the above basis thereof that the 3rd defendant raised a preliminary objection that no cause of action was raised against it.

#### *Representation.*

10 Counsel Robinson Wamani of M/s Kasumba Kugonza & Co. Advocates represented the plaintiff. Counsel Rutungu Derrick, a State Attorney from the Attorney General's Chambers, represented the 3rd Defendant. Both the third defendant and the plaintiff filed their written submissions, which have been considered herein.

## *Third Defendant's Submissions.*

Counsel argued one issue, namely, *Whether the plaint discloses a cause of action against the 3rd defendant.*

Counsel submitted that the complaint did not disclose any cause of action against the third defendant since no compensation monies had been paid to any of the parties. Thus, it could not be held to have violated any person's rights; hence, it should be dismissed 20 against the third defendant. Counsel relied on Section 101 of the Evidence Act, which provides that.

> *"Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts that he or she asserts must prove that those facts exist."*

Counsel further relied on the case of *Auto Garage & Others vs. Motokov (No.3) (1971) EA Pg. 519,* where it was held that in determining whether or not the plaint discloses a cause

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of action, it was held that it has to show that the plaintiff enjoyed the right, the right has been violated**,** and that it is the defendant who is liable. Counsel argued that in the instant case, the plaintiff states that he is the rightful owner of the suit land. In paragraph 4, the plaintiff seeks a declaration that the third defendant is a trespasser on the suit land. Yet, no particulars of trespass have been disclosed against the 3rd defendant, and neither were any form of violations against the plaintiff's right to ownership of the property.

Counsel relied on paragraph 5(h) of the plaint, which stated that.

*"That the second defendant (third defendant after amendment) held a meeting with the parties in which he decided that the matter is in favour of the first defendant and* 10 *wants to proceed and compensate………"*

Counsel added that the use of the word "want" is presumptive and, therefore, cannot be acted upon by the court to impute violation of a particular right. Counsel further relied on the case of *Hamza Mbago & 9 Ors Vs. Jinja Municipal Council and Another, HCMA 154 of 2016,* where the applicants applied for a temporary injunction restraining the respondents from undertaking any dealings or hearings in respect of the suit property pending the determination of the main suit. The court held that the application was presumptive and there was no damage established since the commissioner had not yet made his decision regarding the suit land.

Counsel submitted that in the instant case, the payment decision had not yet been taken; 20 hence, the third defendant had not violated any right. Hence, the claim against the attorney general is speculative and does not constitute a violation of any right. Counsel concluded by praying that this court dismisses the suit against it for non-disclosure of a cause of action against it.

## *Plaintiff's submission.*

Counsel submitted that the preliminary objection by the 3rd defendant is misconceived, baseless, and untenable before any court of law. Counsel added that they are alive to the position of the law in the authorities raised by the 3rd defendant regarding what constitutes

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a cause of action. However, counsel argued that from the amended plaint, paragraph 5(a) indicates that the plaintiff acquired the suit land from the 1st & 2nd defendant's father and took possession of the same in 2009.

When the third defendant's intended project was initiated, the first & second defendants started trespassing on the suit land, claiming an interest in the same and presenting themselves to the third defendant as lawful owners. Counsel added that under paragraph 5(k) of the amended plaint, the third defendant instituted a meeting to ascertain the ownership of the suit property, decided the matter in favour of the first and second defendants, and further notified the plaintiff that if no indication of seeking redress from 10 courts of law is made, it would go ahead and compensate the first & second defendants.

Counsel argued that what the plaintiff seeks from the third defendant is an order to compensate him for the portion of the suit property that it intends to acquire; hence, it was important for the third defendant to be added as a party to the suit. Counsel relied on Order 1 Rule 3 of the civil procedure rules, which provides that.

*"All persons may be joined as defendants against whom any right to relief in respect or arising out of the same act or transactions is alleged to exist whether jointly, severally or in the alternative where if separate suits were brought against those persons, any common question of law or fact would arise."*

Counsel submitted that from the facts in the plaint, it could be seen that there are a series 20 of facts/ transactions that exist which bring out two causes of actions that are a trespass against the first & second defendants and an order for compensation from the 3rd defendant as portrayed under paragraph 4 of the amended plaint. Counsel also submitted that the third defendant is also sued in the capacity of a nominal defendant.

Counsel relied on the case of *Fang Min Vs. Uganda HuiNeng Mining Ltd & 5 Others Civil Suit No. 0318 of 2016,* where a nominal party was defined as a plaintiff or defendant with no real interest in the result of the suit or no actual interest or control over the subject matter of litigation but is solely joined because a technical rule of practice requires their presence in the record. Counsel submitted that the plaintiff has a cause of action against

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the 3rd defendant for his interest in the suit land and his intended act to compensate the 1st & 2nd defendants for the land in dispute. Counsel prayed that this court finds that there is a cause of action against the 3rd defendant directly or indirectly (sued as a nominal defendant).

Furthermore, counsel submitted that if the third defendant doesn't want to go through the trial process, remedies are available, including.

- i. A consent can be executed between the plaintiff and the third defendant, stating that he will respect the court's decision and pay or compensate the party, which the court will declare the rightful owner of the suit land. - 10 ii. The law permits the third defendant to make a formal application to the court and deposit the amount of money for the portion of land he is interested in so that if the suit is concluded between the plaintiff and the first and second defendants, the compensation monies can be retrieved by the successful party.

In conclusion, counsel prayed that the third defendant's preliminary objection be overruled with costs as it is misplaced and baseless before this court and is meant to waste the court's time since the 3rd defendant has a right to exploit the above remedies enlisted for him to be put out of the proceeding of the main suit.

## *Analysis of evidence*

I have considered the submissions of both parties and the authorities raised by them. The 20 issues before this court include whether the plaintiff has a cause of action against the third defendant and whether the suit against the third defendant should be dismissed in the circumstances.

A cause of action has long been defined in the case of *Auto Garage & Others vs. Motokov No.3 (1971) EA pg. 514,* according to *Spry V-P*, to include.

*"I would summarize the position as I see it by saying that if a complaint shows that the plaintiff enjoyed a right, that the right has been violated, and that the defendant is liable, then, in my opinion, a cause of action has been disclosed, and any*

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*omission or defect may be put right by amendment. If, on the other hand, any of those essentials is missing, no cause of action has been shown, and no amendment is permissible."*

According to the third defendant, the plaint in this suit does not disclose a cause of action against them since no compensation monies have been disbursed yet to any of the parties and thus cannot be said to have violated any of the plaintiff's rights. On the other hand, the plaintiff argued that the preliminary objection raised by the 3rd defendant was misconceived, baseless, and untenable and that the object of adding him to the suit was for the purpose of compensating the right person after this honorable court had determined the suit. The plaintiff had further submitted that the 3rd 10 defendant is sued in the capacity of a nominal party and for his interest in part of the suit land and his intended acts of compensating in exchange for acquiring the same.

With reference to the pleadings in this suit, it is not in dispute that the plaintiff's claim as per paragraph 4 of the plaint against the third defendant, is only for *An order compelling the third defendant to compensate the plaintiff for part of the suit land that is to be used for the Karuma Hydropower Project before beginning their project.* Hence, there is no mention by the plaintiff that the third defendant is a trespasser in any way, as alleged by counsel for the third defendant in his submissions.

It is also not in dispute that the third defendant has not violated any right of the plaintiff, 20 nor is he liable in any way against the plaintiff save for compensating the rightful owner upon determination of this suit. On this note, I am inclined to find that the plaintiff has no cause of action against the third defendant.

With reference to the second issue, counsel for the third defendant prayed that the suit be dismissed against him for non-disclosure of a cause of action against him. However, counsel for the plaintiff submitted that the addition of the third defendant to the suit was for him, noting clearly who was to be paid the compensation sum for part of the suit land it intends to acquire upon determination of the civil suit. In other words, the purpose for which the 3rd defendant was added as a defendant, was because the payment of the

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compensation money regarding part of the suit land is contingent upon the final determination of the suit. Counsel relied on provisions of order 1, rule 3 of the civil procedure rules, which states that.

*"3. Who may be joined as defendants?*

*All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally, or in the alternative, where, if separate suits were brought against those persons, any common question of law or fact would arise."*

10 I agree with the learned counsel for the plaintiff that, indeed, the claim against the third defendant arises out of a series of transactions that are currently in place. The said land dispute arose at a time when the third defendant began conducting the processes of compulsory land acquisition. In the case of *Alley Route Ltd v Uganda Development Bank (High Court Miscellaneous Application No. 0459 of 2007), the learned trial judge,* with approval, quoted *Mulla in The Code of Civil Procedure 17th Ed. Vol II, page 102,* that states: -

*"A person may be impleaded as a Defendant to a suit though no relief may be claimed against him, provided his presence is necessary for a complete and final decision of the questions involved in the suit. Such a person is called a proper party* 20 *as distinguished from a necessary party-."*

The aim is to bring on record all persons who are parties relating to the subject matter so that the dispute may be determined in their presence and at the same time without any protraction or inconvenience and to avoid multiplicity of proceedings.

Adding the third defendant to the suit is very clear, and I need not repeat it. It does not prejudice the third defendant, nor will he be ordered to pay any costs in the event. In addition to that, the letter marked *Annexure "D"* dated 10th January 2023, as attached to the amended plaint paragraph 2-3, states that.

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*"As you are aware, the grievance resolution committee (GRC) meeting held on June 28th, 2022, at Kiryandongo district headquarters resolved that the project-affected land situated at Awoo cell, Karuma town council, belongs to Augustine Owor (Nyero Walter). The purpose of this communication, therefore, is to request that you notify your client that the ministry has not received any indication of them seeking redress from the courts of law and shall, therefore, proceed to compensate Augustine Owor (Nyero Walter) at the end of January 2023."*

I have noted from both the amended plaint and the annextures that it is on such basis that the plaintiff instituted this suit on the 27th day of January 2023, wherein the third defendant 10 was added as a party to the suit for purposes of compensating the rightful owner of the suit land upon final determination. This avoids a multiplicity of proceedings, such as an application to add the attorney general as a party to the suit or other applications to enforce or order that compensation monies be disbursed to the successful litigant, among others. It also avoids wasting both court and litigant time. As a result, therefore, I dismiss the preliminary point of law raised by the third defendant.

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## **I so order.**

**Dated and delivered on this 30th Day of April 2024.**

**……………………….** 20 **Isah Serunkuma JUDGE**