[2025] UGHC 281

# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

# ILAND DrVrSrONl

# CIVI SUIT NO.466 OF 2015

# PIUS MUGERWA MUGALAASI PLAINTIFF VERSUS

I. THE ATTORNEY GENERAL OF UGANDA

#### 2. UGANDA NATIONAL ROADS

AUTHORITY: : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : :DEFENDANTS

#### VERSUS

#### 3. CHINA COMMUNICATIONS

CONSTRUCTION CO. LTD 3RD PARTY

# BEFORE: HON. MR. JUSTICE TADEO ASIIMWE

#### JUDGMENT

The Plaintiff brought this suit against the Defendants jointly and severally claiming for a declaration that the Defendants Infiinged on the plaintilf ^s

( 1( xl+l AJ

constitutional rights under article 26 of the constitution of Uganda,1995, compensation, general damages, punitive damages, interest and costs.

The brief facts of this suit are that the plaintiff is the lawful owner of the suit land comprised in Busiro Block 347 plots ¹03,2 5 80,2 5 82,2 5 83,2 68 4,2 68 5,2 686 at Nal umuny e. T hat the said land has a stone quarry managed by its company Omega Construction Ltd. That in 2012,the defendant's surveyor entered upon the plaintiffls land aforesaid and placed pegs thereon for the centre line of the proposed Kampala -Entebbe express way.

In their defence, the Defendants denied the Plaintiff s case and prayed for dismissal of the suit with costs.

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

- l. Whether the defendant compulsorily acquired the plaintiff s land. - 2. Whether the plaintiff is entitled to compensation for rock separate from compensation for land. - 3. Whether the plaintiff is entitled to compensation for only rock affected. - 4. Whether the 2nd defendant is entitled to indemnity and or contribution from the 3'd party for part of the plaintiff s claims in the 3'd party notice. - 5. What remedies are available to the parties?

# Representation:

At the hearing, the Plaintiff was represented by Counsel Peter Mukiidi Walubiri, the first defendant was represented by counsel Godfrey Atwiine, the 2nd defendant by counsel Kenneth Mwebembezi while the 3'd party was represented by counsel Oscar Mugabe.

At the coclusion of the trial, all Counsel were directed to file written submissions which I shall consider in this Judgment.

To prove his case, the Plaintiff led evidence of 3 witnesses and the Defendants called 4 witness.

PWl, Pius Mugalaasi Mugerwa in his witness statement stated that in 2005 Mugalaasi Holdings Ltd where he is a majority shareholder acquired land at Nalumnye comprised in Busiro block 347 plot 104 measuring 3.410 hectares. That this land was transferred into his names in2009. That he subsequently sub- divided the said plot 104 in to ⁶ plots- 2580, 2582,2583, 2684,2685, 2686. That in 2010 he purchased another plot no.l03. That his company, Mugalaasi Holdings Ltd established a stone quarry and through Agency Agreement dated 26th June 2005 and appointed Omega Construction Ltd to operate the stone quarry,. Omega Construction Ltd obtained a NEMA certificate. Mugalaasi Holdings Ltd, Pius Mugalaasi Mugerwa and Omega Construction Ltd vide Novation Agreement dated 26 August 2009 transferred the rights of Mugalaasi Holdings Ltd in the Agency Agreement to Pius Mugalaasi Mugerwa. That however in march 2012 the defendant's surveyors entered the suit land and placed pegs for the

centre line of the proposed Kampala Entebbe express way. That the said land contained valuable granite and the same land had been mortgaged. That he wrote a letter to the 2nd defendants notifuing them of the same and asked them to shift the centre line unless they were willing to indemnify him for the said mortgage. That the defendants however compulsorily acquired this land in January 2013 without compensating him. That the 3'd party entered the suit land and dug holes until he reached the rock. That m/s Mott mac Donald, a firm elected by the 2nd defendant invited him for verification and acknowledged that the suit land has a stone quarry and he signed a form of payment of UGX 17,424,744,4271: (Uganda shillings seventeen billion, four hundred twenty-four million, seven hundred forly-four thousand and four hundred twenty-seven) exclusive of disturbance allowance. That the said approved compensation amount was however not paid. That in February 2015 he executed two MOU with the 2''d defendant and his banks (Barclays and Eco Bank) for surrender of the two titles which were mortgaged. The condition agreed for release of the titles was payment of 1,500,000,000/: and interest accruing in lieu of the mortgage of 4,405,000,000 in Barclays Bank and 1,500,000,000 and interest accruing to Eco bank. That however the defendants did not honour the memoranda. That compensation was not paid and since they frustrated his stone quarry business which he was using to finance his loan he has failed to pay his loan obligations.

That in 2016,the second defendant's contractors moved on to the suit land forcefully, took over additional 1.26 acres, dug up rocks on the

land and starled constructing on the suit land a road using rocks, destroyed property, plant and equipment there by occasioning loss who is total claim is shs 151,448,019,280/: That among the destroyed properties is a PC650 Excavator whose current cost price is USD 452,030 and site buildings. That he cannot use his remaining land for its quarry business because it lies within 500 metre radius of Entebbe express way and this would offend NEMA guidelines. In addition, the access to his stone quarry was cut off by the Expressway. That in the result, he has been denied both use of his land and his money hence suffering financial loss, inconvenience, injurious affection and loss of business opportunities.

Upon cross-examination, he confirmed that he didn't know the number of shares off cuff in Mugalaasi holdings Ltd. That the suit land is owned by himself and that the said Mugalaasi holdings Ltd is owned by him and his brother although he does not know the number of shares off cuff in Mugalaasi holdings Ltd. That the document in PE9 was registered with URSB but has no stamp and no taxes were paid. He further stated that Omega is a separate legal entity. That the novation agreement P10 was equally registered with URSB but no stamp for taxes is shown. That he is suing on his own behalf and paid taxes for stone quarrying services but does not have the returns in Court. That Exh P l0 does not give him specific powers to sue but gives him general powers. That P E 33 was issued to Omega Construction limited and that the quarrying business is his with Omega Construction Ltd as his agents and that there was no need for a mining licence at the time. That the

only licence needed was for the blasting exercise and that Nema never gave him other permits apart from exhibit P33. That when land was gazelted it was taken over and that the intention and the wording of the gazette was to notify him that his land had been taken over. That Omega was carrying out the work on behalf of the Principal. There are no receipts he has for selling stones that the stones were used on his buildings in Kirinya and roads. That are audited accounts of the business and that there are no returns filed for the business on record. That There is no trading licence for quarrying business that according to Pl7 The mortgagor was Omega Construction Company and he was the guarantor and that UNRA was not a co-moftgager. That according to P 18-Omega was the mortgager. UNRA was not a co-mortgager and that there is no credit facility letter on record except the MOU and the letters from the defendants to the banks and the responses from the banks before the MOU were signed. That the primary business of Omega construction limited is roads, dams etc. that Omega had about ²contracts with the 2nd defendant before. That Titles of plots 2583, 2580 were not released because they were mortgaged in Barclays Bank and Eco Bank. That he handed over four titles. And The memorandum of understanding was made to enable Mot Mac Donald to obtain the titles from the banks. That Omega construction limited had the obligation to pay the debt. That he doesn't remember whether LINRA notified him of the realignment of the road. That in Exh D10) he was requested to receive his titles. That UNRA made him aware that there was a realignment of the road. That 17 billion had earlier been valued

and he is not aware that the final approval was 4,649,283,427. The he doesn't recall the 2nd defendant calling him for verification after the realignment but he never picked up the titles because they are being used by the 2nd defendant. That there was destruction of his equipment but not sure whether my caretaker reported the destruction to police. He finally state that they compensated residents before blasting stones.

PW2, ROBERT ANTHONY KATUNTU in his witness statement stated that he is an Accountant by training and works with JSR Consulting limited as a director. That the said company was contracted by the plaintiff to carryout consequential loss quantification on the suit land. That the said exercise was carried out and a report marked as No. 26 and it is on record containing of loss of business opportunity and funded interest expenses, destruction of quarry, plant and equipment, some costs among others.

In cross examination he confirmed that he works with J S R Consultants as an Accountant and that he did the report any accounting business. That they were instructed in 2017 and they made a report (P826) although he did not sign the same but participated in drawing conclusions. That 143 of P826, the report is based on estimation and does not constitute an audit opinion. That6.26million metric ton in his evidence is also an estimation as per paragraph 7 . Thal This estimation derived from a geologist report contained in PE26. That his evidence is based on other experts in the team like the road and valuation surveyors. That they do not give legal opinion but we give reports on what we observed on site. That the Information about NEMA clearance

was obtained from the plaintiff but no report seen. That he didn't see any loan agreement but an M. O. U between the parties and the 2nd defendant undertaking to settle the loans and a mortgage on the plaintiff s titles. That PE27 is an invoice for an excavator for Omega construction company and different from the picture in PE26 page 155. That the figures are based on a quotation from a supplier in the report and that the prices are estimated since he was not sure how old the machine was. That the 2 houses were roofed with iron sheets sitting on 40x40 and S 3.6 square meters. That The amount of 573,300,000/: was derived from a valuation report by Moses Opito of Saleem Appraisal valuers engaged by the plaintiff which is contained in the reportPE26 Section 7

PW3 Ivan Innocent Mukaaya in his witness statement stated that he's been the caretaker of the suit land since 2012 and the same has been used to operate a stone quarry. That in 2072, or thereabouts the defendants' surveyors entered the suit land and placed pegs for the centre line of the proposed Kampala Entebbe express way. That in ²⁰16, Ms China Communications construction company an agent of the defendants took over the additional piece measuring 1.26 acres and blasted crushed and collected rocks which they used in construction of the said road. That in the process of blasting rocks the plaintiff ^s property plant and equipment was destroyed and that the remaining piece of the plaintiff s land is within 500 meters' radius Entebbe Express way.

In cross examination he stated that he had no appointment letter in court but its available. That it is OMEGA construction operating the quarry on his behalf and that the pegs were put on plots 2580,2582,2583 and 2684,but he can't explain the exact plots. That the additional piece of the land was taken by CCC Company. That The size taken is 1.26 acres, information he got from surveyors who were brought by the plaintiffs to take measurements. That The defendants took parl of the plaintiff ^s land. That land measuring 1.26 is additional land taken by the road. He confirmed that he does not know all the dealings between the parties since he was just a caretaker. That the machines were destroyed by blasting of rocks and they were vandalised by thieves. The thefts were reporled to police by him.

On the other hand, DW I , Kintu Moses stated that he has a Bachelor's Degree of Science in Land Economics and joined the 2d defendant in 2016 as a senior valuer in the land acquisition department, the office he still holds to date.

That in 2012,the 2nd defendant embarked on the process of construction of 51.4 kilometre Kampala Express High way and execution of the same was contracted to CCC (China Communications Construction Company). That the plaintiff s land was affected and also had rock deposits that required valuation of the same. That the 2nd defendant received a valuation report from a government valuer dated 281112015 wherein the plaintiff was entitled to UGX. 11,424,744,4271:. Thatthe plaintiffwas invited for a verification process and the same was signed by both parties. That however, the valuation report did not break down

what was to be compensated for yet was inclusive of the rock tonnage and the land itself. That an MOU was entered between the parties and their respective banks to facilitate the release of the land titles that were mortgaged in the bank and the 2nd defendant undertook to deposit a certain amount of money from compensation of the plaintiff to the bank. That however, the 2"d defendant by virtue of the MOU did not undertake to take on the plaintiff s liability under his mortgage. That the 2nd defendant however, intimated to stake holders that the evaluation of the rocks was way too high and the mineral licence from MEMD was not available to justiff the said valuation. That further the expropriated plots of the plaintiff were affected since the redesign of the construction left them and touched unaffected and the same are fully occupied by the plaintiff. That following the realignments, the Chief Government Valuer underlook a fresh valuation for the affected 0.32 acres out of plot 2580 and 2684. That the plaintiff s allegation of destruction of equipment and property and expropriation of an alleged 6.2 acres are not true. That following the valuation process, afresh valuation report was issued and the plaintiff was invited for verification. That the 2nd defendant through respective lawyers wrote the plaintiff to take titles of the respective plots of land that were not affected by the realignment. That however, the plaintiff declined the same and filed this suit. That in the second valuation the Chief Government Valuer acknowledged that he had not valued the rock which was marginally affected on the plaintiff s land and recommended that MEMD values the rock. That however this was disputed by the opinion of the Attorney General that clay and rocks are part ofland and do not have to be valued independently a reason why the re-evaluation of the rocks was not done. He further stated thatthe value set in the report of the JSR are highly speculative and not justifiable. In Cross-examination, he confirmed that Only 2 of the plots were compulsorily acquired by government. That Govemment valued the land comprised in all the 6 plots which were initially affected as per the gazette and that all the 6 plots had rock deposits which required compensation and were valued based on a report of senior geologist who are better qualified. That the value of the rock was put out Shs 17,424,747,4271: as DEI and that no separate valuation for the land was done. That if the land had been valued, the value would have been higher.

The plaintiffaccepted the assessed value and process to secure the titles from the banks started with different MOUs which were exhibited. That agreement between plaintiff, 2nd defendant and banks were never considered and there was no subsequent noticelgazette to re-align the road although in Dl4, they notified the plaintiff about the alignment. That they did not involve the plaintiff in the decision-making and that it is UNRA which took the claim to re-align the road passage due to the high cost of compensation. That as the alignment was going on, the plaintiff was free to use his land but not more loans. That PE26, is a business loss report and that he is not an expert in that area. That the figures/values of the JSRA reports are speculative and there is no basis on how he arrived at the figures therein. That there is no need for

permission from the land owner for us to re-align. That the re-alignment affected only 2 plots (2684 and 2580 measuring 0.32 acres. (32 decimals). That the value in PE 26 in respect to land equivalent to 1.26 acres yet we acquired 0.32 acres only.

DW2 BRAZZA KWESIGA testified that he is a qualified accountant and is are of the plaintiffs claim for compensation. That he read and understood the contents of a report by JSR consulting ltd and that he holds the view that it would be erroneous to rely on it as ^a representation of what the plaintiff ought to recover from the 2nd defendant because it is full ofinconsistencies, exaggerations and highly speculative. That the same has disclaimers that make it suspicious.ln Cross-examination he confirmed that he is employed by government LINRA as head of finance. He also confirmed that an Audit of finance statement is different from quantification of consequential loss. That to determine future loss you do a projection while an audit opinion is based on an existing record. That he did not carry out further investigation of the plaintiff s report and limited himself to reviewing the report and raised concerns. ThatPE22 is a letter, which had been used in another case against LTNRA CIS 247 of 2017 while interest was paid as per paragraph 22. That he does not agree with the figures in PE26, but I did not have or obtain independent figures to contradict P826. That the suit land was valued by a chief government valuer. (DEl) who did not attach land sale agreements. That the houses could have been damaged by the plaintiffls quan),activities. That the plaintiff was offered as per private valuer in DE9 4,649,283,000/: Billion on 3011012015. However, as per DEl, the chief govemment valuer approved Shs 17,424,744,,0001: Billion. That a new assessment was made a figure 4,649,283,4271: being payment for plaintiff and other landowners and the plaintiff was to be paid 89,667,5001:. ThatPE22 which was used in the Commercial Court by Omega construction limited in that case.

DW3 Gilbert Kiremundu in his witness statement stated that he is a chief government valuer and 6 plots of the plaintiff were initially acquired by government and that all plots had mineral deposits. That a valuation of UGX. 17,424,744,421 Was done and approved. That however due to high costs of valuation, a re-alignment of the road was done and only two plots were affected and the valuation for land was done without valuing the rock and clay for reasons that the plaintiff did not have a mineral licence from MEMD and that fact that land is one and the same as rock and can't be valued differently. That the later valuation was ugx 89,667,5000/. In Cross-examination he stated that Gazetting is a requirement in the process of compulsory acquisition of land and that land in this case was gazetted before he did valuation. That he is not aware that the Gazette was withdrawn. That at realignment, he did not see any new Gazette. That he approved a figure of about 17 billion as compensation. This figure is the value for the rock and the amount is exclusive of the value of the land. That the surface rights were not considered here. That the rock values comprise

the land value and that the figures in his report is for the quarries. That land also had value, which is not in his reporl. That he never visited the suit land after the acquisition and that the figure in my assessment did not include consequential losses. That the re-alignment reduced the earlier figure to 89,667,500. That this figure represents the value of land only. That the land in the re-alignment route did have a rock on the surface. That his final figure (89 million) did not include the geologist assessment of the rocks. As per DES. That the value of land with a rock would be higher than that without a rock. That in this case his assessment was limited to land, crops and developments not the rock. That DE9 shows that compensation did not include any interest in the rock. He further stated that to recommend compensation on the basis of injury, one must be doing recognised businesses by Government authorities and payment of taxes, keeping books of accounts. (see bullet 5and 6 page 50 of the proceedings). He finally stated the plaintiff was doing quarry activities.

DW4 PATRIC SSENTEZA in his written statement stated thathe was employed as a project office by the 3'd party. That the 3'd parly was among other projects contracted by the government of Uganda under UNRA to construct an express high way from Kampala to Entebe. That it is the legal mandate of the 2nd defendant to compulsorily acquire land and hand it over to the contractor right away. That in no way does the 3'd party compulsorily acquire land. that the allegations of the plaintiff against the third party are untrue. That the 3'd parry had entered the

earlier gazetted land but vacated due to realignment and all the liability goes back to the 2nd defendant. That they never caused damage to any of the properlies belonging to the plaintiff. In Cross-examination, he stated that 1.26 acres were not acquired by the 2nd defendant. That they acquired less than an acre and that they never used the plaintiffs rocks. That they did work in the re-aligned area and that Before their activities the land was agricultural and maram road. That there was also one quarry cite belonging to Zion Estates and not the plaintiff. That the plaintiff had an unserviceable excavator (not functional), small homes, trees and gardens and that No damages to the plaintiffs properties including the excavator was caused. That a contractor does not acquire land and that the excavator was abandoned on the plaintiff s property where the road did not pass.

## RESOLUTION.

## Issue l. Whether the defendant compulsorily acquired the plaintifPs land.

The law.

Article 26(2) (b) of the Constitution is to the effect that Private rights can only be alienated by the State upon prompt payment of fair and adequate compensation prior to the taking of possession.

The said law provides that;

"Every person has a right to own property either individually or in as sociat ion w it h ot hers.

No person shall be compulsory deprived of property or qny interest in or right over the property of any description except where thefollowing conditions are sailsrted; -

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

From the evidence on record it is clear that the 2nd defendant originally acquired 6 plots from the plaintiff to wit- Busiro block 347 plots 2580,2582,2583 ,2684,2685 and 2686 in land titles exhibited as PE2 to PE8. The process of acquisition started with the Gazzette and the statutory instrument. The processes went on, valuation was concluded as per the valuation report of the chief government valuer, D I (2).

Verifications and signing for payment as per DE3 were done and titles were handed over as per PE 29 to P832. However as per the evidence on record, the 2nd defendant's executive director raised a query with the chief government valuer and requested that values be revisited as per DE 4 since the earlier valuation had followed a wrong criterion. As a result, a decision for a redesign was taken and implemented as per DE6. The 2nd defendant as per Dl0, Dl2 and D14 wrote to the lawyer of the plaintiff notifying them that only two titles of the plaintiff plot 2582 and 2584 were affected by the redesign and as such the other titles are available to be collected. By a letter dated DEl l, the plaintiff declined

to collect the titles claiming that the obligations of the MOU must first be met.

I have heard a chance to read the said memorandum dated 23'd, Feb 2015-PE lB. I will quote "the Uganda national roads authority is in the process of constructing block 347 plot 2580,2685,2582,2583,2684 and 2686 are to be affected. The I't party authorises the 3'd party to release the title of plot 2580 once 1,5,000,000,000/: is paid to the accounts of the 2"d party. The MOU affects only plot 2580.

The two titles of plots 2580 and 2583 are still with the Banks. Indeed, PE l7 and PE 18 showsthat2 titles were handed over.

I have also heard a chance to read the said Statutory Instrument 2013 No 7 which states that the parcels of land described in partl of the schedule are declared to be land acquired by the Government for ^a Public Purpose.

It is also on record as per evidence of DW4, Patrick Senteza that the 3'd party as an agent of the defendants had entered the earlier gazetted land but vacated due to realignment.

The question to be answered by court is whether government can lawfully withdraw fiom compulsory acquisition and if yes at what stage or is compulsory acquisition of land irreversible.

Section 8 of the land acquisition act provides that Govemment may withdraw from the process of compulsorily acquiring land for a public purpose provided that the assessment officer has not yet taken possession.

Court in the case of Attorney General Vs Etot Paul Peter And 8 Others CACA No. 144 Of 2018, the court had this to say;

In any case the time of compulsory acquisition is relevant and is presumed to be the time the government of Uganda took over control and its agent started using the land which was before extraction of stones for construction. The government of Uganda took the option of compulsory acquisition under 5.42 of the Land Act

Further the tort of breach under article 26 of the Constitution and any inconveniences suffered by the plaintiffs can be conveniently considered in the award of general damages. The presumption is that the valuation of land included everything that formed part of the land at the time of acquisition.

In this case, there is evidence on record from DW4 Patrick Senteza and DW3 that the agents of government had taken physical control of the suit land and placed marks before the redesign of the road. The same land is still gazetted to date. Government therefore is at liberty to withdraw from the compulsory acquisition of the suit land upon degazetting and surrendering the land which has not happened in this case. Any breaches and inconveniences therefore can be atoned to in general damages.

The plaintiff s argument that the MOUs signed with the 2nd defendant was a binding factor to the acquisition is untenable. The MOUs as per PE l7 and PE l8 were to the effect that the title in plots 2580 and ²⁵⁸³ only were to be released to the 2nd defendant after payment of 1,500,000,000/: as part payment of the initial agreed compensation amount. The said titles are still with the bank and as such the MOUs are deemed to be still in force. The plaintiff signed a PAP Payment Receipt from the agent of the defendant in lieu of the funds to be received.

By and large it is the finding of court that the 2nd defendant compulsorily acquired part of the suit land measuring 1.26 acres off plots 2580, 2582 and 2684 as per the re- design sketch map. The remainder of the land which was earlier acquired shall be de-gazetted and released back to the plaintiffby the defendants.

Therefore, Issue one is answered in the positive.

## Issue 2. Whether the plaintiff is entitled to compensation for rock separate from compensation for land.

In this case, the plaintiff s claim is 17,424,744,4271: as earlier agreed compensation for the entire suit land. The basis of the said valuation is EXDI(2). The reading of the said report, it's clear that there is no breakdown of the award. However, the total is derived from the geologist's report on an assumption of the rock tonnage. It therefore implies that EXDI is an assessment of only the rock. This was confirmed by DW2 Mr. Moses Kintu who stated that only rocks were valued and land was not valued.

In the Chief Government Valuer's letter dated 28 April2015 to the ED Lll{RA, he clarified that the report covered all surface rights claims including the value for the land. Therefore, the value of 17 billion includes both the rock and Land.

Court in the case of Attorney General Vs Etot Paul Peter And ⁸ Others while resolving a similar issue held as follows;

Further rock should not be valued separately from the land as it is part and parcel of the land in the circumstances. It was erroneous to accept the valuation of a geologist based on the estimated tonnage of the rock that may be exploited or mined form the land. There are so many imponderables that can be considered if a willing buyer is willing to buy the property on the basis that he or she may profit from it, assessment of the value of the rock would be a disincentive in the market. The assessment therefore is on the basis of the market forces as reJlected the force of willing seller and willing buyer. Another basis for valuation is the destruction of the property and their replacement value as well as disturbance allowance this could include crops, semipermanent houses and medicinal plants.

I verily agree with the above position. Therefore, i find that it was erroneous to accept the valuation of a geologist based on the estimated tonnage of the rock that may be exploited or mined form the land. However, I would like to add that in determining the market value of the land, the existence of rock deposits should be put in consideration. In this case, the evidence of the chief government valuer is that in arriving at the plaintiffls land value, he did not put in to consideration the rock which I find to be wrong and can be atoned to in damages.

Consequently, the plaintiff is entitled to compensation for land together with the rock as a whole and all the developments and not for the rock separately.

Issue two is answered in the negative.

### Issue 3. Whether the plaintiff is entitled to compensation for only rock affected.

I have already found that compensation is for land as a whole including the rock and not the rock separately. The finding in 2 above determines issue 3 as well. Therefore, the compensation to the plaintiff relates to only land/area or potion affected by the re-design of the road which I have already found to be 1.26 acres. The remainder of the land that was not utilised by the defendants but was initially gazetted, will be atoned to in general damages.

# Issue 4. Whether the 2nd defendant is entitled to indemnity and or contribution from the 3rd party for part of the plaintiff s claims in the 3rd party notice.

The 2nd defendants claim for indemnity in the 3'd party notice is for the plaintiff s claims under paragraph 1 0 and 22 of the amended plaint.

To begin with, the law on indemnity is that it shall be applicable only when there is an indemnity clause in the agreement or contract between

the parties. In this case, although the 2nd defendant's lawyer referred to the contract between the parties, the same was not exhibited in court to carry any evidential value.

Unfortunately, since the contract was not exhibited, this court finds no basis to find in favour of the 2nd defendant.

Secondly, even if the contract had been exhibited, indemnity in this case would occasion an injustice in the circumstances. The 3'd party was simply an agent of the 2nd defendant. If the second defendant had followed the right procedure and compensated the plaintiff, all parties wouldn't be here. Besides, some damages are bound to happen in the course of construction and therefore unless the 3'd party was negligent, the indemnity clause would be unfair.

This issue is answered in the negative.

#### Issue 5: What remedies are available to the parties.

The plaintiff sought for the following remedies which I shall resolve one by one.

## l. A declaration that the defendants infringed on the plaintiff's constitutional rights.

I have already found that the defendants infringed on the constitutional rights of the plaintiff and I so declare.

#### 2. An order for payment of 200,000,000/- as punitive damages

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 ofcourt at the defendant's egregious, highhanded, malicious, vindictive, oppressive andlor 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 loss suffered 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 ofdecency.

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 ofcourt 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. See the case of Uganda Revenue Authority Vs Wanume David Kitamirike Civil Appeal No. 43 of 2010.

In this case compulsorily acquired the plaintiffs land and did not compensate him for the same after valuing it and he accepted the valuation as per D3(2). This was done in 2015 and to date no payment for the land has been made after several MOUS were entered with third parties based on the subject matter. A re design was done by the 2nd defendant without the knowledge of the plaintiff only for him to receive a notification in writing for a different valuation. The conduct of the 2nd defendant is quiet suggestive of impunity, egregious, highhanded, oppressive and/or malicious conduct.

I shall therefore award the 150,000,000/: (One hundred and fifty Million) as punitive damages.

# 3. An order for payment of shs 17,424,,744,,427 as adequate compensation for the 3.213 acres of the plaintiffs land compulsorily acquired by the defendant.

As already stated earlier, the plaintiff is entitled to compensation for only land which was compulsorily acquired by government. However, I have already found that the valuation amount of UGX 17,424,744,427 is based on the initial 3.213 acres that were originally acquired and marked for road construction. Evidence on record is that after the re- design of the road, the original 3.2 I 3 acres were not utilised but another portion measuring 1.26 acres was acquired and utilised. Therefore, the plaintiff is not entitled to compensation for the land with was not utilised by the defendants.

The plaintiff can only be compensated for the period he was denied its use, interference with the planned quarry business and blockage of access.

According to the evidence on record, the gazetting of the plaintiff ^s land was done in 2013 and remains so to date. This is a period of ¹¹ years. The land cannot be easily accessed due to deep excavation of the defendants as a result ofroad construction. The quarry business has completely closed and the machinery gone to waste. The

workers' houses are redundant and in a sory state. I find that the plaintiff was greatly inconvenienced for I I years for which compensation is awardable.

I will therefore allow compensation for non-use of his land due to acquisition and gazettement for I 1 years at a rate of 15 % of the 17,424,744,427, the value of the land originally acquired from the plaintiff as determined by the chief government valuer. By calculation, the l5Yo equals to UGX shs 2,613,711,6641: which I hereby award.

### An order for payment of shs. 51227 1328 being 307o disturbance allowance in c above.

Ordinarily a claim of disturbance allowance arises from the law and it is assessed after determining the amount for compensation for the land utilised (1.26) by the defendants. Therefore, I find it prudent to deal with this claim after determining the amount for compensation later.

## 4. An order for payment of 573,000,000/- being fair and adequate compensation lbr 1.26 acres of land.

The plaintiff claimed that due to the redesign of the road, part of his other land measuring 1.26 acres was affected valued at 350 million per acre as per PE 26 and D6. The defence argued that the affected land is

only 0.3 acres and each acre is valued at 250 million as per D9 the redesign sketch.

I wish to deal with the issue of land size first. The 2nd defendant's counsel in his submission argued that the 1.26 acres claimed by the plaintiff includes land that is by statute for public use next to the road. Ideally it is requirement of the law for some land to be left for public use where a road exists. This what is called a road reserve. However, the road in question did not exist before the design. The plaintiff s land was instead acquired for purpose of constructing the road. Therefore, the 2nd defendant cannot claim that they bought land to construct a road but did not acquire the road reserve. I therefore find that the land which was acquired and to be compensated is 1.26 acres including the road reserve.

As regards the price, the plaintiff exhibited PE26 as a basis of his valuation while the 2nd defendant exhibited DE9 as a basis of his valuation.

I must note that the valuation reports exhibited are based on expert's 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 cxperls 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 Evidencc (4th 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 ofexpressing 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 thot 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 ifa 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 opinton 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 when such opinion is given, the grounds upon which it is based become relevant. Therefore, a convincing opinion is that which is supported with logical reasons.

The Plaintiff presented a valuation report marked PE26 while the Defendant produced a report marked DE9.

Considering both reports, I find the author of PE26 based his value on the valuation report by Moses Opito (as per page 29 of the proceedings. He is a registered surveyor with Sanleem Appraisal which report is part of PE26. The value given in this report is UGX 655,200,000 Exclusive of statutory disturbance allowance. PW3 discounted this figure to 573,000,000 as stated in his cross examination.

I find that the valuation report of the Defendants- DE9 backed with logical reasons save for not considering the existence of a valuable rock. As already stated, although it is wrong to calculate the tonnage of the rock separately from the value of land, a competent valuer must consider the fact that existence of the rock in commercial area increases the market value of land depending on the location and the party's business.

Since the valuation presented in PE26 Section 7 was prepared by a chartered valuation suryeyor, I am inclined to take the value given in the Sanleem report and award the discounted figure of 655,200,000/:as a proper value for the land which I hereby award.

Additionally, the law requires government to pay 30Y, of the above compensation to the plaintiff as disturbance allowance. I find that Ug. 196,560,000/: as sufficient to be paid to the plaintiff as disturbance allowance which is here by granted.

## 5. An order for payment of 267,074,795,800/- being consequential loss suffcred by plaintiff.

6. An order of payment of damages for financial losses, loss of opportunities, none, usc ofland, inconvenicnce and injurious affection.

I shall deal with the two above remedies together since they are related.

The plaintiff s basis for the above figure is based on exhibit P26. To begin with the plaintiff s claim for payment of 267,074,195,800/: is based on PE26 and broken down as follows; -

- a) Loss of equipment and housing ie excavator and houses - b) Unfunded interest expenses - c) Loss of business opportunity - d) Professional fees. - e) General damages for inconvenience.

First exhibit PE26 has a disclaimer at the beginning, and I will quote it verbatim, this report gives the best estimate of the consequential loss.....an actions regarding the subject matter cannot solely be based on this opinion and is in no way an audit report... "

The above disclaimer alone is a caution that PE 26 is an opinion based on estimation cannot be a sole basis for court's determination in its awards.

PW2, Robert Anthony Katuntu testified that he is an Accountant by training and participated in the decision making of the report although he did not sign it. That the opinion was based on estimation and from

information given to them by the plaintiff. That he did not visit the suit land. He further stated that he based his reasoning about the excavator on the invoice from suppliers an estimated its value since he did not know how old the excavator was. He further stated that he did not see the loan agreements.

Therefore, it clear that PE26 was based on speculations and the witness's opinion which cannot be entirely relied on for a meaningful determination. That being the case, I shall proceed to resolve the ² issues based on the basis of facts and other evidence available on record.

#### a) Loss ofequipment and housing - excavator and houses

The plaintiff s evidence is that the 2"d defendants through its agents damaged his excavator and houses due to stone blasting. However, PW3 confirmed that the excavator was also vandalised by thieves. At locus this court found an excavator stationed on the plaintiff s land and houses with damaged roof, and no widows which the plaintiff claims were damaged by the blasting of stones. (apart from PWl's testimony, there is no other independent evidence e.g police finding about the reported criminal cases).

On record, there are various correspondences from the second defendant and their agents Mott MacDonald/ Katuramu and Company, and CGV, CGV and ED IINRA, ED LINRA and Commissioner Geology and Mines that there was an operational quarry in 2012. This quarry had machines and site houses too. It is also the evidence of PW2 the caretaker that these items existed and were damaged by the defendant's agents. The damages on the buildings were seen at locus. It was also confirmed that the excavator was parked just next to the new expressway close to where the old access road to the property was and next to the now damaged site offices. It was confirmed that rocks existed all over the area next to the excavator and that blasting had been carried out next to the excavator. Removal of the excavator may have been defeated by lack ofan access as the alternative road seen at locus was about 2m wide only and yet the excavator is much bigger and wider than the road so as to be used by the plaintiff.

The sum total ofthe above evidence is that the house and the excavator were damaged. However, the responsible person remains in doubt.

I would therefore not award these claims for lack of evidence as to who caused the said damages. There was no police report or any other evidence to prove the alleged destructions. Therefore, I find no basis to award this remedy.

# b) Unfunded interest expenses

The plaintiff s claim is that he borrowed money from the back as per EX. Pl9, P20,P21,P22 and P25. However, these documents are in the names of omega construction company the agent authorized to carry out the quarrying business. Besides even if the plaintiff is a shareholder in the said company or has instructed the company to manage his quarrying business as he claims, there are no loan agreements on record to prove the purpose of which the loan facilities were obtained.

The defendants entered into a tripartite agreement with the plaintiff and the banks Ecobank and Barclays Bank in respect of the mortgaged land. This was after the defendants writing to Barclays Bank on l7 February 2015 and the bank responding on 18 February 2015 confirming that plot 2583 was indeed mortgaged to them for 4,405,000,000 and showed that the outstanding amount at the time was 1,500,000,000. The defendants also wrote to ECOBANK on 17 February 2015 which responded that an outstanding amount of loan facilities in lieu of plot 2580 stood at 1,500,000,000/:. (see the trial bundles of both parties)

The tripartite memoranda were entered into to the effect that the defendants would pay to the banks the above amounts plus interest accruing on the Omega Construction Ltd Account and get the titles.

Upon signing the agreements, the plaintiff is deemed to have handed over the titles to the defendants and ceased to have control over those portions of the land. It is indeed true that the defendants took over extra portions of plot 2580 and 2582 which serves as the only access to plot 2583 under the forceful acquisition.

The Payment of Approved Compensation to Project Affected Persons form was duly signed by the Defendant's Agent and the plaintiff signed for receipt of the said payment on 19 February 2015 with the belief that funds were received on the denominated accounts on the form.

In the circumstances specific performance of the agreements must be performed since the plaintiff was prevented from paying off the mortgages by the defendant's actions.

It is my view this claim can be found handled under the general damages. It cannot be granted as a separate remedy.

I therefore find no basis to award this remedy too.

# c) Loss ofbusiness opportunity.

The plaintiff sought for damages for loss of business opportunity since he had a quarry business going on that was distracted and stopped. At locus we found small diches that the plaintiff claimed was his querying area. We also found rock on land. However, besides a stationed excavator and two houses, there was nothing indicative of stone querying for commercial purposes. Since it is about ten years since activity was stopped it is understandable that movable machines could have been removed from cite. No evidence was led in form of books of accounts or receipts to show that he was selling rocks as a business. What is evident is that the plaintiffs land had rocks and there had been rock extraction but for which purpose evidence was not led. Instead the plaintiff in cross examination confirmed to coutl that he extracted rocks which he used to build his cite in Munyonyo. (DW3's evidence that there was a quarry in cross examination was not coroborated.

The record has ample evidence of inconvenience and none use of land but not proof of initial commercial use by the plaintiff to award damages for loss of business opportunity. Besides the plaintiff s whole land was not taken due to the re-design. Therefore, the plaintiff was at liberty to utilise the rest of the land pending de-gazettement.

I find this to be merely an inconvenience which may be remedied under General Damages.

#### (d) Professional fees.

Ideally professional fees for reports for purposes ofcourt are catered for in costs awardable by court. This cannot be claimed separately.

I will not grant it as it is catered for under costs.

# e) General damages for inconvenience.

The law on general damages is that the damages are awarded at the discretion of the Court and the purpose is to restore the aggrieved person to the position they would have been in had the breach or wrong not occurred. See: Hadley v. Baxendale (1894) 9 Exch 341; Charles Acire v. M. Engola, H. C. Civil Suit No. 143 of 1993 and Kibimba Rice Ltd v. Umar Salim, S. C. Civil Appeal No. 17 of 1992. In the assessment of general damages, the court should be guided by the value of the subject matter, the economic inconvenience that the plaintiff may have been put through and the nature and extent ofthe injury suffered.

The plaintiff claimed UGX 200,000,000/: (Two hundred million shillings) as General damages.

In this case, I have already found that the plaintiff was extremely inconvenienced by the defendants by their conduct. I shall therefore award UGX 100,000,000/:

#### 7. Interest on 5 above and punitive damages

The plaintiff sought for 30oh interest on adequate compensation and punitive damages from 2013 to the date of payment.

It is a settled position of law that interest is awarded at the discretion of court, but it must be exercised judiciously taking into account all circumstances of the case; Uganda Rcvenue Authority vs Stephen Mabosi SCCA No.l ofl996. An award of interest is discretionary; the basis of such an award is that Defendant has kept the Plaintiff out of his money and the Defendant has had use of it so the Plaintiff ought to be compensated accordingly;Harbutt's Plasticine Ltd vs Wyne Tank & Pump Co. Ltd [ 1970] 1 Ch 447 .

In this case the plaintiff has been kept out of his land without compensation since 2013. lt is clear the Plaintiff has been kept out of the use of his money denying him the right to plough this money into his Business. For those reasons, I grant interest rate of l5Yoper annum on compensation and punitive damages from date of filing this suit till payment in full.

#### 8. Costs.

Section 27(2) CPA provides that costs are awarded in the discretion of court but shall follow the event unless for e good reasons the court directs otherwise. See also: Jennifer Rwanyindo Aurelia &A 'nor vs. School Outfitters (U) Ltd., CACA No.53 of 1999; National Pharmacy Ltd. vs. Kampala City Council [19791 HCB 25.

In this case the plaintiff being the successful parfy, he is entitled to costs which are hereby granted.

In conclusion the plaintiff s case succeeds with the following orders;

- l. A declaration that the plaintiff s entire land comprised of 6 plots was compulsorily acquired but only 1 .26 acres was utilized. - 2. An order for Degazettement of the plaintiff s land which was not utilized by the defendants. - 3. The plaintiff is not entitled to compensation ofthe rock separately from the land acquired. - 4. Plaintiff is entitled to compensation of the rock affected together with the affected land as a whole. - 5. The 2nd defendant is not entitled to indemnity/compensation from the 3'd defendant. - 6. A declaration that the l't and 2d defendants infringed on the plaintiff s rights. - 7. Plaintiff awarded punitive damages of UGX 100,000,000/: (One hundred million). - 8. Plaintiffawarded UGX 2,613,7 11,6641: (Two billion six hundred thirteen million Seven hundred eleven thousand six hundred and sixty-four Shillings) as compensation for none use of his land and closure of a Quarry business. - 9. Plaintiff is awarded UGX 655,200,000/: (Six hundred and fiftyfive million and two hundred thousand shillings) being compensation for land measuring 1.26 acres which was acquired and utilized by the defendant.

- 10. Plaintiff awarded UGX 196,560,000/: (One hundred ninety-six million five hundred and sixty thousand shillings) as disturbance allowance. - ^Il. General damages are allowed at UGX 100,000,000/- (One hundred million). - 12. Interest of l5oh granted on general damages from the date of judgment and l5Yo on punitive damages and compensation from the date of filing. - 13. Costs granted to the plaintiff.

r \( TADEO ASII /

JUDGE

30104/2025.