[2024] UGHC 386

# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDED AT MBALE

# **CIVIL SUIT NO. 0010 OF 2023**

# WAWOMOLA ARAFAT MWENYI ::::::::::::::::::::::::::::::::::::

### **VERSUS**

METRO CEMENT LTD :::::::::::::::::::::::::::::::::: **BEFORE: HON. JUSTICE LUBEGA FAROUQ**

#### JUDGMENT

## 1. Introduction:

2. The Plaintiff instituted this suit against the Defendant for; a declaration that the Defendant committed acts of trespass and nuisance, general and exemplary damages for nuisance and trespass, mense profits, a permanent injunction and restoration order or any other relief that court may deem fit.

### 3. Background:

- 4. The cause of action is that the Plaintiff is the owner of the suit land located along Mbale Tirinyi Road measuring approximately 100 by 100. That the Defendant having purchased land in the neighborhood, completed construction in 2018 and embarked on oppressive behavior and conduct towards the Plaintiff which amounted to trespass and nuisance. - 5. That these acts include; making writings and painting on the Plaintiff's house without his consent, blocked the drainage water channel along Mbale Trinyi road thereby causing over flooding of water in the Plaintiff's land and because of that, the Plaintiff was unable to carry out his concrete business, his house was inhabitable due flooding and the place developed nascent foul smell from the accumulated and stagnant rain water. - 6. The Defendant dug a trench along the Plaintiff's house which floods on the Plaintiff's foundation, and that the Defendant constructed a wall fence which accumulates and links water through blocks thereby flooding into the Plaintiff's compound.

$\mathbf{1}$

- 7. In the written statement of defence, the Defendant denied all the Plaintiff's claim and averred that they purchased their land from the willing sellers and that the Plaintiff consented to the Defendant's actions. The Defendant contended that there are no proper drainage channels set by the Plaintiff that would enable the flow of water and that the loss suffered by the Plaintiff is self -inflicted. - 8. The Defendant further averred that the wall fence was erected according to a duly approved plan and the Plaintiff's premises lack proper drainage system which made him to channel all the wastes from his premises to the Defendant's duly connected water points by National Water and Sewerage Cooperation. - 9. They prayed that the suit be dismissed with costs.

#### 10. **Legal representation**

11. Counsel Isaac Masanga represented the Plaintiff whereas Counsel Ntuyo Shafic represented the Defendant.

# 12. Submissions

13. After hearing of all the witnesses of the parties in court, both counsel requested to file their respective submissions which was allowed by court and both counsel complied.

## 14. Determination of Court

- The agreed issues for determination are- $15.$ - 1. Whether the Defendant trespassed and/or committed acts of nuisance onto the Plaintiff's land?

### 2. What remedies are available to the parties?

- 16. I shall proceed to examine and resolve the issues in the above order. - 17. Issue 1 - 18. Whether the Defendant trespassed and/or committed acts of nuisance onto the Plaintiff's land? - 19. Submissions of Counsel for the Plaintiff - 20. Counsel in his submissions defined the term nuisance to mean a tort where an owner of land uses his land in such a way that affects his neighbor's enjoyment of his land which is unreasonable hence interference with the Plaintiff's enjoyment of the land.

$\overline{a}$

- 21. He cited Howarth David, Textbook on Tort, Butterworths (1995:499) where the author explains that liability of the neighbor lies not so much in the intention to cause the nuisance but whether the Plaintiff's enjoyment of his property should outweigh the Defendant's activity complained of. Counsel further cited Stimmel Stimmel and Smith Law Office at http:// stimmel-Law.com. $\frac{1}{2}$ - 22. In the view of the above, counsel submitted that unreasonable use of land which led to injury does not per se attract liability but if the use denies the adjoining owner reasonable enjoyment of his land due to defendant's activities, then the defendant is liable. - 23. He argued that the blockage of the main drainage channel and diversion of the same by the Defendant was visible at locus and the same was not well maintained with broken culverts and blocked exit at the end of the channel. - 24. Counsel further submitted that the created and diverted channel was narrow and could not contain the heavy and huge amounts of rain water along the main channel. He cited section 64 (1) (f) & (g) of the Roads Act, 2019 which creates an offence of obstruction of a drain or water course on a public road, or drain made to carry water, whether on the main road or elsewhere, by other works. - 25. Counsel argued that by carrying out the above actions, the Defendant unlawfully caused undesired results that led to flooding of the Plaintiff's adjacent residential home and business premises as well as enjoyment of the Plaintiff's land which caused private nuisance. - 26. Submissions of counsel for the Defendant - 27. Counsel submitted that the Plaintiff during his examination in chief said the Defendant put writings and paintings on his wall without consent and in cross-examination he said he was not around when they painted the house. However, at locus the Plaintiff contradicted himself when he stated that for the paintings and writings to be made on his wall, there was an understanding between him and the Defendant's Public Relations Officer. - 28. Counsel cited that case of Justine E. M. N Luataaya V. Stirling Civil Eng. Civil Appeal No. 11 of 2002 to submit that there is no any act of

$\overline{3}$

trespass committed by the Defendant Company to the Plaintiff since the Plaintiff admitted at locus that there was an understanding between them to paint the said wall which means there was consent.

- 29. Regarding nuisance, counsel for the Defendant submitted that the Plaintiff's home is at the low area of the slopes where storm water from uphill end and stagnates at his home because he blocked the drainage channel. He added that there is no water coming from the factory to the Plaintiff's home as alleged since the Defendant has a proper drainage system within its factory. - 30. Counsel argued that the said channel is wide enough for the rain water to flow and it was well maintained. - 31. I shall carefully examine the facts of both parties, the evidence on court record, submissions of both counsel and the law in determination of this issue. - 32. **Nuisance** is defined by the Black's Law Dictionary to mean-

"Anything that unlawfully worketh hurt, inconvenience, or damage." That class of wrongs that arise from the unreasonable. unwarrantable, or unlawful use by a person of his own property, either real or personal, or from his own Improper."

33. Bulen & Leake & Jacobs on Precedents and Pleadings Sweet & Maxwell, 1990:700 and 701 states that-

> **"Nuisance** is concerned with conditions and activities which with the use or enjoyment of land; and that Courts interfere balance the competing interest of neighboring owners and adjust their respective rights and privileges' (p.701)"

- 34. In the instant case, the Plaintiff in paragraph $2$ (c) of his plaint averred that after the Defendant completed construction, it embarked on oppressive behavior and conduct towards the Plaintiff that amounted to simultaneous and continued acts of trespass and nuisance which includes; constant emission from noise, vibration and dust caused by the trucks and the factory activities. - 35. PW1/Plaintiff throught his evidence consistently stated that the Defendant factory emits vibration when loading and offloading. This

evidence was not objected or respondend to by the evidence of the Defendant which means it was admitted.

- **Standards** Control) 36. The National Environment (Noise and **Regulations, 2003**, provides for the level of noise that a factory or company is supposed to emit a day. It further states that the owners of the places that emit noise are under a duty to put in place machines that measure noise. In order to regulate such noise and vibrations, **Regulation 6 rule 8** provides for the level at which such noise should not exceed. - 37. Regulation 7 of the same law provides that-

"Subject to these Regulations, no person shall, for an activity specified in regulation 6, emit noise in excess of the permissible noise level, unless permitted by a licence issued under these *Regulations.*"

38. Further, **Regulation 8**, provides that-

"It is the duty of the owner of machinery or the owner or occupier of a facility or premises, to use the best practicable means to ensure that the emission of noise from that machinery, facility or premises *does not exceed the permissible noise levels.*"

- 39. In the present case, the Plaintiff said that the vibration happens every time the Defendant is loading and offloading. The above cited law however, requires the owner of the facility to regulate the noise according to the law. The plaintiff did not however specify or describe to this court the level of noise that usually comes from the alleged vibration, for this court to be able to make comparisons or inference. - 40. Section 101 (1) of the Evidence Act Cap 6 provides that-

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

41. In the instant case, it was therefore a duty of the Plaintiff to at least describe to this court in the layman's understanding the level of vibration, noise or dust that usually affects him or his homestead but he did not do SO.

- 42. Court is under a duty to only make judgments based on the evidence allowed by the law but not on mere speculations. - 43. This court visited the locus and observed that the Defendant constructed a fence with concrete bricks which separates it from the Plaintiff and there many offices inside the fence. Therefore, in such circumstances, the Plaintiff was duty bound to prove to this court the level of dust, noise and vibration which affects him or his homestead. (See: Halsey v Esso Petroleum Co. Ltd (1961) 2 A. E. R) - Be the above as it may, the Regulations stipulates that in case of 44. emission of noise and vibration from neighbors, the Magistrate Court shall be the court of first instance and such a matter can only come to High Court as an appeal. - Therefore, following the guidance from the regulations above 45. mentioned, the Plaintiff ought to have instituted the claim concerning vibration and noise in the magistrate court. - The plaintiff further averred in paragraph $2$ (c) (ii) of his plaint that 46. the Defendant blocked a drainage channel along Mbale Tirinyi Highway thereby causing over flooding of water in the Plaintiff's land and that the Defendant also dug a trench along the Plaintiff's house which floods on to the Plaintiff's foundation and thereby damage to the property. - In **Rylands v Fletcher**, Blackburn J, who spoke on behalf of all 47. judges said-

$\overline{c}$

"The general principle that comes to be just here is that a person who suffers loss because of the actions of his neighbour, whether it be the eating of his corn by the neighbour's cattle, or the flooding of his mine by the water from the neighbour's reservoir, or his residence made unhealthy by the fumes and vapours from the neighbouring land, is to be compensated as there is no fault of his own. And such neighbour is obliged to make good the damage caused to the person whose property is destroyed, in case he is unable to keep the mischief from being caused, even though the thing is harmless if contained in his own property. - 48. In Lukanga Muhammed V. Musa Juuko Civil Appeal No. 42 of **2016**, the Court cited the case of *Dr. Masambu v Kikwe Muusa Mbale Civil Appeal No. 130 of 2014*, where the appellant whose land was on the upper part of the slope complained that the respondent had dug a trench on his land and caused flooding in the appellant's land and it was found that the trench was in fact a valley which was the natural route of the rain water and that there was therefore no connection between the respondent's activities on the land and the nuisance of flooding on the appellant's land. - 49. In the instant case, the Defendant has a factory of cement in the area. According to DEXH.1 which is the certificate of title, the Defendant's land is restricted to industries and it was to be developed according to the planning regulations of the area. The Defendant also attached the plan on which the factory was constructed as annexure "B". - 50. PW1 however testified that he started to suffer from floods after the Defendant constructed in the area. He added that the Defendant powered marum which blocked the drainage channel along Mbale Tirinyi High Way and also put up a trench along his boundary that fills and water floods his compound which affects the foundation of his house. This evidence was corroborated by the evidence of PW2 Ali Makanika who testified that he works with the Plaintiff and he has visted his home several times and that when it rains, water floods all over the plaintiff's home. - 51. On the other hand DW1 Piringo Edinan who is the Public Relations Officer of the Defendant testified that in a move to mitigate the flooding at the Plaintiff's home, the decided to excavate a tunnel although some water goes through and some does. He added that there is no proof that the Plaintiff requested them to do so since his request verble through a meeting, however, the minutes of the said meeting were not adduced before this court. - 52. This in my view means that, the Defendant was already aware of the mess it causes the Plaintiff's property otherwise there would be no reason as to it they would labour to excavate the said tunnel.

- This court also visited the locus in quo and observed that the land 53. in dispute is in the low lying area. The alleged water drainage along Mbale-Tirinyi highway is a natural route of rain water which was neither created by the Uganda National Roads Authority nor the Plaintiff. - Therefore, since the Defendant had established a factory therein, it 54. had to put proper culverts to provide access to where its vehicles would pass which it did and in the process, the Defendant diverted the channel into an 'L' form which was manmade hence, affecting the proper flow of water through the original natural trench. - However, the said manmade trench which was put in place by the 55. Defendant is very narrow and not well maintained hence, it cannot contain the volume of water when it heavily rains and in the result, causes flooding of water in the Plaintiff's compound during rainy seasons. - Court further observed that the Defendant also constructed 56. another trench along the boundaries of the Plaintiff's boys' quarters which was intended to be used to allow proper flow of the water from the Plaintiff's bathroom, but it is also narrow, not well maintained and incomplete. - The Plaintiff told court that the water which floods into his home 57. also passes through the Defendant's fence. However, at locus by this court, it was observed that the Defendant's fence is built with concrete bricks and water was not passing through as alleged. - The PW1/Plaintiff throughout his evidence admitted that his home 58. does not have proper drainage system and secondly, he did not obtain a plan before constructing his house. - As it is already indicated in the body of this judgment, the 59. Plaintiff's home is in the low lying area. Therefore, the water that affects the Plaintiff's home comes from the upper side and flow down to the direction of Mbale City which was fueled by the Defendant's actions of blocking its proper drainage system and since he did not have proper drainage system from the start, it floods into his compound, sinks into the foundation of his house which has affected its durability.

- In the view of the above, I therefore find that both the Plaintiff and 60. the Defendant to some extent contributed to the flooding of the Plaintiff's home. - If the Plaintiff had proper drainage system, the activities of the 61. Defendant would not have affected his home like they did. And if the Defendant had constructed a wide trench along Mbale Tirinyi highway without any corners and properly maintained it, the flooding wouldn't have affected the Plaintiff's property like it did. - In the circumstance, I find that the actions of the Defendant also 62. contribute to some extent the floods at the Plaintiff's premises. - 63. **Trespass** - The Plaintiff averred in paragraph 3 and 2 (c) of his plaint that the 64. Defendant trespassed on his land by making writings and paintings on his property without his consent or permission and turning it into an advertising billboard. - The Black's Law Dictionary defines trespass to mean-65.

"In the strictest sense, an entry on another's ground, without a lawful authority, and doing some damage, however inconsiderable, to his real property".

Further the Supreme Court while defining trespass in the case 66. of Justine E. M. N Lutaaya versus Stirling Civil Eng. Civ. Appeal No. 11 of 2002, held that-

> "Trespass to land occurs when a person makes an unauthorized entry upon another's land and thereby interfering with another person's lawful possession of the land".

In the instant case, PW1 said that the Defendant is using the walls 67. of his boy's quarters as billboard for advertising its cement products and they branded it with Metro Cement Limited. This at locus in quo observed the said writings of the Defendant's company on the Plaintiff's wall. However, upon examination of the Plaintiff by his counsel, the Plaintiff said that the writings were made with his consent but the

$\overline{9}$

Defendant Company promised to give him some money but they did not complete his payments. The Plaintiff's evidence was buttressed by DW1 who said that the writings were made with the consent of the Plaintiff.

- 68. The definition of the term trespass above mentioned refers to unauthorized entry upon another's land which leads to interference with another person's lawful possession of his property. - 69. Contrary to the above definition, in the instant case, the Plaintiff claims that the Defendant wrote on the wall of his property. However, there was no evidence adduced by the plaintiff at all to prove that there was unauthorized entry into his land by the Defendant and therefore the Plaintiff's claim cannot be justified under trespass. - 70. In addition to that, if the amount of money agreed upon between the parties for the said writings and paintings was not completed, in such a case, the Plaintiff can sue the Defendant for specific performance but not for trespass. - 71. Issue 2

## 72. What remedies are available to the parties?

### 73. **Exemplary damages**

- 74. Counsel for the Plaintiff submitted that the fact the Plaintiff refused to sell his land to the defendant, motivated the Defendant's unlawful and unreasonable actions. - He argued that the oppressive, aggressive, unlawful misconduct by 75. the Defendant cannot go unpunished in harsh terms by a court of justice and the law. He prayed for exemplary damages of Ugx: $300,000,000/=$ (Three hundred million shillings) - 76. I have looked at all the evidence on the court record, submissions and the pleadings of both parties. I also visited the locus in quo. However, as already discussed in the body of this judgment the Plaintiff also partly contributed to the flooding which affected his property. - 77. It is trite that the purpose of exemplary damages is to serve as a punishment and to deter other members of the public from doing the same act again (See: Butterworth Vs Butterworth and Englefield $(1920)$ p 120).

78. However, the Plaintiff having contributed to the problem he is suffering from, no exemplary damages are awarded to him.

#### 79. General damages

80. These are type of damages which are as a result of direct natural or probable consequence of the act complained of. (See Stroms Vs

# Hutchinson 1950 AC 515)

- 81. It is trite that general damages are awarded at the discretion of - 82. court and in the assessment of general damages, the court is guided by the value of the subject matter, the economic inconvenience that the plaintiff may have been put through and the nature and extent of the injury suffered. - 83. Therefore, considering the circumstances of this case, the Plaintiff is awarded general damages of Ugx: $10,000,000/$ = (ten million shillings)

#### 84. **Restoration Order**

- 85. The Plaintiff also sought a restoration order of the plaintiff property to be restored to its initial status before the breaches mentioned. - 86. According to my observation of the suit land, the major problem that causes flooding of the Plaintiff's property arises from poor drainage system. The land being in a low lying area, the Plaintiff ought to have provided proper drainage systems which he did not do. - 87. Unlike the Plaintiff, the Defendant set up proper drainage system at its place and the essence of establishing the manmade trenches along the Mbale Tirinyi High Way road was to ensure the proper flow of rain water but it was poorly done hence leading to flooding at the plaintiff's property. - 88. Therefore, the Defendant is directed to install proper culverts equivalent to three meters over access way to its factory in line with the original water channel along Mbale Tirinyi highway to allow proper and quick flow of water as it was before the blockage. The Defendant will also properly maintain the water channel between the plaintiff boy's quarters and the defendants building along its access way.

89. In the final result, it is declared that-

(a) The Defendant contributed 50% to the flooding of the Plaintiff's property.

- (a) The Plaintiff is awarded Ugx: $10,000,000/$ = (Ten Million Shillings) as general damages. - (b) The Plaintiff is awarded 50% of the costs of the suit. - I so order

LUBEGA FAROUQ **JUDGE**

Delivered via email on this $30^{th}$ day of May 2024