[2022] UGHC 141

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MUKONO CIVIL SUIT NO. 74 OF 2018 (FORMALLY CIVIL SUIT NO. 226 OF 2014) OF HIGH COURT OF UGANDA AT JINJA)

1. YEREMIAH SEREMBA 2. MUKOZA GODFREY 3. NANYUNJA HAMIDA 4. AYUB MBUBI 5. MUHAAMOOD MUJENZI 6. AJJI KIIZA 7. NABONGO BAMULI 8. EDWARD KYESWA

PLAINTIFFS

#### **VERSUS**

- 1. BUJAGALI ENERGY LTD - 2. ATTORNEY GENERAL - 3. SALINI COSTRUTTORI :::::::::::: **DEFENDANTS**

### **BEFORE HON. MR. JUSTICE BATEMA N. D. A.**

#### **JUDGMENT**

#### **BACKGROUND**

The plaintiff sued the defendants for a declaration that the defendants destroyed the properties of the plaintiffs, special, general and exemplary damages arising out of trespass and destruction of the plaintiffs' homes and property, costs of the suit and interest.

The plaintiff's case in brief was that they are residents and inhabitants of Buloba, Kikubamutwe and Malindi villages all in Malindi Parish. That the defendants in constructing Bujagali Hydro Electric Power project blasted stones and in the process destroyed the houses and property of the plaintiffs and other residents of the affected area. That the plaintiffs made claims to the defendants but no efforts were made to compensate them. That in October and November 2012, the 1^st defendant compiled a list of affected persons and the damages caused to their houses and property but no efforts were made to make good its findings. As a result, the damaged houses and properties have deteriorated.

The 1^st defendant in its written statement of defence, denied destroying the houses and property belonging to the plaintiffs. It denied conducting any blasting of stone as was alleged. It admitted owning the Bujagali Hydro Electric Power project but contended the dam was built by an independent contractor Salini Costruttori the $3^rd$ defendant herein.

On his part, the $2^{nd}$ defendant contended that the plaint was bad in law and he denied liability to the claims raised in the plaint.

Counsel Byamugisha Gabriel appeared for the plaintiffs' and counsel Bazira Anthony appeared for the $1^{st}$ defendant.

On the 25^th August, 2022 when the matter came up for hearing, counsel Byamugisha Gabriel informed court that they had failed to serve the 3^rd defendant. He also prayed for leave to proceed ex parte against the $2^nd$ defendant which court granted. The plaintiffs having failed to serve the 3^rd defendant, it would be unjust to continue determination of the suit with it as a party. Accordingly, court strikes out the 3^rd defendant Salini Costruttori from this suit with no order as to costs.

## **ISSUES**

The parties agreed to three issues for the resolution of court to wit;

- Whether the suit is time barred? $1.$ - $\mathcal{L}$ Whether the defendants are liable to compensate the plaintiffs? - $3.$ What are the remedies available to the parties?

To prove their case, the plaintiffs called 3 witnesses; PW1 Muhaamood Mujenzi, PW2 Eng. Andrew Tadhuba and PW3 Nabongo Banuli. On its part, the 1^st defendant called DW1 Gordon Revey and DW2 Robert Gisembe.

I have considered the testimony of the witnesses, evidence on record and the submissions of counsel for the plaintiff and 1^st defendant. I shall resolve the issues in the order proposed by both counsel.

#### $$ **WHETHER THE SUIT IS TIME BARRED?**

Counsel for the plaintiff submitted that the blasting took place between 2008 and 2009 and the plaintiffs houses and buildings were affected and damaged in the process. He further submitted that the plaintiffs claim was for land and buildings whose time limit was 12 years.

Counsel for the 1^st defendant contended that the blasting having taken place in 2008 and 2009 and the plaintiffs having filed their suit on 25^th November 2014,

Whee

then, the plaint was barred by statute. Counsel referred to my decision in the case of Disson Nsubuga & 8 others V Attorney General Misc Cause No. 20 of 2018.

In the Disson case, I considered the effect of Section 3 of the Civil Procedure and Limitation (Miscellaneous Provisions) Act Cap 72 on actions against the Attorney General.

Section 3 provides,

(1) No action founded on tort shall be brought against—

(a) the Government:

(b) a local authority; or $\frac{1}{2}$

(c) a scheduled corporation,

after the expiration of two years from the date on which the cause of action arose.

(2) No action founded on contract shall be brought against the Government or against a local authority after the expiration of three years from the date on which the cause of action arose.

The plaintiffs' claim as can be discerned from paragraph 3 of the amended plaint arises out of trespass and destruction of the plaintiffs' homes and property. This is a claim founded in tort and not a claim for land.

As such, the plaintiffs' suit as against the 2^nd defendant is time barred. The plaintiffs ought to have complied with Section 3 above. I dismiss the case as against the $2^{nd}$ defendant. I make no orders as to costs because although the $2^{nd}$ defendant filed its written statement of defense, it did not appear at the trial and filed no submissions.

I answer this issue in the affirmative.

#### DEFENDANTS ARE LIABLE TO **WHETHER** THE $$ **COMPENSATE THE PLAINTIFFS?**

To put this issue in perspective, with the striking out of the 3^rd defendant and dismissing the suit against the 2^nd defendant, court shall determine whether the 1^st defendant is liable to compensate the plaintiffs.

The burden of proof in civil cases is on a balance of probabilities. Section 101 of the Evidence Act Cap 6 provides;

Marth.

(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts must prove that those facts exist.

(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

And Section 102 of the Evidence Act provides thus;

"The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side."

Before delving into the merits of evidence adduced on this issue, counsel for the plaintiffs prayed that court admits 53 witness statements contained in the bundle as read and filed onto the court record without calling the deponents as witnesses. Counsel submitted that the 3 witnesses called namely PW.1 Eng. Tadhuba Andrew, PW2 Muhamod Mujenzi and PW3 Banuli Nabongo was a sample of what all the other witnesses filed in their statements. He did not want to waste court's time calling 53 witnesses, putting them on oath and ask each to repeat the same evidence.

Counsel for the 1^st defendant neither consented nor objected to this prayer.

Court will be guided by the law. Order 18 Rule 5A of the Civil Procedure Rules provides for witness statements. I shall only reproduce parts relevant to address counsel for the plaintiffs' prayer.

Order 18 r5A

$(1)$ ...

The witness statement shall be formally tendered as evidence in chief of the $(2)$ witness after the witness has appeared in court and taken oath.

$(3)$

$(4) \quad \ldots$

$(5)$ Except with the consent of the parties, a witness who does not appear to tender in the witness statement and be cross examined, shall have his or her statement expunged from the court record.

The Civil Procedure Rules cited above are quite clear and need no elaboration. Without the express consent of the parties, no witness statement of witnesses who do not appear in court may be admitted. The witness statements of the 53 witnesses who did not appear in court and take oath are expunged from the court

$4$ Page

record. The damage allegedly caused to their properties by blasting of rocks cannot be assumed to be of the same magnitude and cost.

Court will proceed to analyze the evidence of only the 3 witnesses who appeared in court, took oath, identified their witness statements and were cross examined on them.

PW 1 Muhaamood Mujenzi testified that he was one of the victims of the stone blasting by the defendants or their agents. That he lost 2 houses with a kitchen and 2 toilets. That according to PE 1, a letter dated 31^st July 2014 from the 1^st defendant offered to carry out repairs which were inadequate and he rejected them. During cross examination PW1 Muhaamood Mujenzi testified that he had no approved building plans and that he built by village standards. That he started building in 1977 and there were no cracks by 2007. That he maintained his houses by painting. That the cracks were caused by stone blasting. That he knew Salini was responsible for building the dam.

PW2 Eng. Andrew Tadhuba, a registered professional Engineer working with Tamp Engineering Construction Limited, testified that he was instructed by Byamugisha Gabriel & Co. Advocates to carry out valuation of several houses and structures of people in Malindi, Buloba and Kikuba Mutwe in Buikwe District affected by the stone blasting during the construction of Bujagali dam. That he carried out the valuation between August 2016 and February 2017. The report however shows that it was from 12^th September 2016 to 12^th November 2016. His report titled "Building Survey and Valuation Report" which was in three bundles was admitted on record as PE 3, PE 4 and PE 5.

During cross examination PW2 Eng. Andrew Tadhuba, testified that he established the rightful owners of the houses. There were no building plans for the houses he inspected. That they looked at the materials used in the construction and, according to him, the rock blasting affected all the houses in the village but only strong ones withstood the tremors of the blasting. That the blasting contractor was Salini. He conceded that there are other factors that could have led to deterioration of these structures but he did not name them. He ruled out simple wear and tear. He said that on average 45% of the structures looked well built without naming the specific owners of such structures.

PW 3 Nabongo Banuli testified that he lost a house and a toilet valued at Ug Shs. 9,320,500/-, he relied on the report of PW2 Eng. Andrew Tadhuba for the value quoted. That he objected to an offer from the 1^st defendant to carry out repairs to his house as the damage was so fundamental and the repairs were inadequate.


There is no documentary proof of this offer allegedly made by the 1^st defendant which would amount to accepting liability.

PW3 Nabongo Banuli during cross examination, testified that he did not have building plans. That vibrations destroyed the walls and cement floors and the iron sheets. That his home was 1 Km away from the blasting site. That Salini wrote warning them about the blasts.

For the 1^st defendant, DW1 Gordon Revey testified via zoom. He is a Controlled Blasting and Engineering Consultant by profession, a holder of a Bachelor of Engineering and Mining Engineering degree from Laurentian University, a member of the Association of Professional Engineers of Ontario, Canada, a member of the International Society of Explosive Engineers and a member of the American Society of Civil Engineers.

Eng. Gordon Revey testified that he was retained by the 1^st defendant to give an independent evaluation of the effects of the blasting program and its potential impacts. He evaluated the rock blasting works at Bujagali Hydropower project. He visited the site, obtained the blasting records, evaluated all blasting related documents including but not limited to blast monitoring records, specifications and carried out interviews. He wrote a report in November 2010 which was admitted as exhibit DE 1. He testified that the cracks in the plaintiffs' houses could not be attributed to blasting activities but to soil movement otherwise known as settlement, water damage and strain caused by normal environmental conditions.

During cross examination DW 1 Gordon Revey testified that he evaluated several sites. That for example, he documented Kintu Sarah's ceiling which suffered a collapse from rain water. That very low vibrations were caused by the controlled rock blasting during the construction of Bujagali dam.

DW2 Robert Gisembe, a registered professional Civil Engineer, testified that he reviewed the report made by PW2 Eng. Andrew Tadhuba and in his opinion the findings of Eng. Andrew Tadhuba are highly questionable. He tendered in court exhibit DE 4, his technical review report, discrediting PW2 Eng. Andrew Tadhuba's findings. According to him Eng. Andrew Tadhuba did not in his report distinguish the impacts of the various conditions which could cause structural damage to building structures and attributed all building failures and deterioration to the effect of rock blasting which is not correct.

Counsel Byamugisha for the plaintiffs submitted that the evidence of PW 2 Eng. Andrew Tadhuba showed that the plaintiffs' houses were damaged and destroyed by blasting of rock. He further submitted that there was an indemnification clause

6 | Page

$\mathbb{R}$

in the contract between the 1^st defendant and Salini and as such the 1^st defendant was liable.

In reply, counsel Bazira for Bujagali Energy Limited submitted that rock blasting was carried out by an independent contractor – Salini Costrutori. That his client cannot be held liable for acts of a different contractor. That the indemnification alluded to by counsel for the plaintiffs could only arise in instances of negligence by Salini but this never happened. That instead, Salini was to indemnify Bujagali in case of any third party claims, damages, losses or expenses.

Counsel Bazira further submitted that the plaintiffs had not proved the tort of trespass. The plaintiffs and 1^st defendant largely rely on expert witnesses. PW1 Muhaamood Mujenzi and PW3 Nabongo Banuli's evidence is firmly rooted in the report of PW2 Eng. Andrew Tadhuba. Equally both the defence witnesses gave expert opinion evidence.

Section 43 of the Evidence Act Cap 6 provides for when court can rely upon expert evidence. It provides thus;

"When the court has to form an opinion upon a point of foreign law, or of science or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in that foreign law, science or art, or in questions as to the identity of handwriting or finger impressions, are relevant *facts. Such persons are called experts.*"

In Kooky Sharma & another V Uganda [2002] UGSC 18, the Supreme Court noted that opinions of experts are received as an exception to the general rule. The rule admitting expert evidence is founded on necessity.

In the U. S Supreme Court locus classicus case of Daubert V Merrell Dow Pharmaceuticals Inc. 509 U. S 579 (1993) at 595, court stated that expert evidence can be both powerful and quite misleading because of the difficulty of evaluating it. Expert evidence can also be so persuasive that the danger exists of its incorrect use that could lead to miscarriage of justice where the innocent are convicted and the guilty go free" L Meintjes van der Walt "Paradoxes and Dilemas of Expertise in Criminal Justice Process"(2000) 13/3 Acta Criminologica 58.

Like any other form of evidence, expert opinions are subjected to independent court scrutiny. In the case of Uganda V Namakula [2016] UGHCCRD 146 court stated that expert evidence is only advisory and persuasive in nature. However, sometimes the courts subconsciously accord it superior quality which may increase the likelihood of its misuse to defeat the ends of justice.

In Sach

An expert may be skilled but biased. In the case of Gidudu V Kigozi [2014] UGHCLD 49 citing Sarkar's Law of Evidence 17^th Edition 2010 at 1258; "the evidence of an expert is not conclusive. It's for the courts to assess the weight of that evidence and come to its own conclusion .... Such evidence must be received with caution, they are too often partisan- that is they are reluctant to speak the whole truth, if the whole truth will tell against the party who paid them to give evidence "

The English case of Lord Arbinger V Ashton (1873) 17 LR Eq 358 at 374 notes a natural and effectual bias for experts to do something serviceable for those who employ and adequately remunerate them that instead of considering themselves as witnesses, they appear as paid agents of persons who employ them.

The above authorities shall guide this court in weighing the conflicting experts' evidence. This court is tasked to find the culpability of the 1^st defendant for damage and destruction of houses and property belonging to the plaintiffs. The plaintiffs attribute the damage to rock blasting at the project of the 1^st defendant.

I have keenly studied the report of PW2 Eng. Andrew Tadhuba and I am of the opinion that he did not carry out a reliable assessment which court can rely upon. His instruction was to make a valuation report of damages on the plaintiffs' houses. He approached the valuation with a preconceived mind that all damage on the plaintiffs' houses and property was solely caused by the rock blasting. Rock blasting per se is not unlawful. He needed to provide scientific proof showing that the effects of the vibrations caused by the rock blasting was the cause of the cracks in the floors, walls and ceilings of the buildings complained of. He did not. He did not labour to source for the blasting records from which he could more appropriately compute the net effect of the rock blasting activities on each and every house he was valuing. He opted to apply a general computation without applying actual data that could have been available had he cared to search. He concentrated more on valuation of the alleged damages before finding a convincing nexus between them and the rock blasting. On these grounds, his evidence is unreliable and court declines to rely upon it. This alone collapses the plaintiffs' case which was strongly rooted in PW2 Eng. Andrew Tadhuba's report.

I find the evidence of DW1 Gordon Revey and the technical analysis by DW2 Robert Gisembe of PW2 Eng. Andrew Tadhuba's report more believable and helpful in answering this issue. I am of the opinion that the controlled rock blasting did not cause the damage alleged by the plaintiffs. In light of the fact that other natural factors cause damage to houses and property, the plaintiffs ought to have demonstrated in concrete terms backed by scientific findings or principles

Most

why they believed that the damages on their houses and property were solely due to rock blasting.

Furthermore, the plaintiffs have always been clear as to which entity conducted the rock blasting - Salini Costrutori. Salini was never served. Even if Salini was sub contracted by the 1^st defendant, still the burden would be on the plaintiffs to prove that it was the vibrations and tremors from the controlled rock blasting by Salini (if any) that caused damage to their buildings. I am made to believe that the minor cracks and damages to buildings were caused by normal wear and tear, poor building designs, poor building materials and unprofessional construction works. None of the plaintiffs tendered in court an approved building plan and or samples of building materials that could withstand lawful controlled rock blasting. Our people should use technically qualified engineers and put up standard quality buildings wherever they live in Uganda. The archaic practice of every Tom, Harry and putting up unplanned and illegal structures must stop. It is the duty of courts to save government and investors from paying huge sums of compensation to speculators who plan to reap big from government projects.

There was some evidence that some people received token of ex-gratia funds and compensation by way of minor repairs on their houses through Future Dialogue International (see exhibit PE.1). This letter and offer cannot be construed to originate from the 1^st defendant, it was from Future Dialogues International. A mediator's decision cannot bind parties.

It was corporate responsibility carried out by other stakeholders not being the $1^{st}$ defendant. The tacit evidence from the pleadings and agreements exhibited is that several people were shifted from the dam affected area. These got houses built for them elsewhere and are not complaining. The complainants are from neighbouring areas with vexatious and flimsy complaints whose compensation could only be nominal. All was foreseen and planned for by the 1^st Defendant. The company known as Future Dialogue International did well as a mediator to cool down claimants to accept nominal damages. The plaintiffs who did not benefit from that charitable scheme or whoever rejected the offer cannot turn around and sue as of right.

I answer this issue in the negative.

ISSUE 3: WHAT ARE THE REMEDIES AVAILABLE TO THE **PARTIES?**

The plaintiffs have failed to prove their case on a balance of probabilities and it stands dismissed.

Illeant to

Considering the fact that the plaintiffs sued in a representative capacity and the government of Uganda and all investors desire operating in a harmonious and peaceful environment, I shall make no orders as to costs.

Accordingly, I make the following orders:

- 1) The suit against the 1^st defendant is dismissed with no order as to costs. - 2) The suit against the $2^{nd}$ defendant is time barred and is dismissed with no orders as to costs.

3) The suit against the $3^rd$ defendant stands withdrawn by the plaintiffs.

I so order.

Batema N. D. A Judge $2/12/2022$