THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
HCCS NO. 1605 OF 2000
DR. KAMANYIRO KAKEMBO :::::::::::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF
ROKO CONSTRUCTION LTD ::::::::::::::::::::::::::::::::::::::::::::::::::::::: DEFENDANT
BEFORE: THE HON. LADY JUSTICE MS. ARACH — AMOKO
The Defendant denied the allegations in its written statement of defence and averred that it escavated and paid for the murram on the basis of an agreement with the Plaintiff’s brother and agent, one Godfrey Mudima Kakembo (referred to throughout this Judgment as Godfrey Kakembo), who held a Power of Attorney granted by the Plaintiff. The Defendant further averred that when it transpired that the authority of Mr. Godfrey Kakembo over the suit property was disputed by the Plaintiff, the Defendant agreed with the Plaintiff that the land be refilled, which was done. The Defendant also averred that there were other companies apart from itself, that escavated murram from the suit property. Lastly, the Defendant prayed for a set of Shs.15m against the Plaintiff’s claim, being the cost of refilling the land.
1. The land was escavated by the Defendant.
2. The land was partially filled.
The following issues were agreed upon for determination by the Court:
1. Whether Godfrey Kakembo had the Power to enter into the agreement for escavating land.
2. Whether he held out to the Defendant that he had the Powers to enter into the agreement.
3. Whether the Defendant re-filled the land after escavation.
4. Whether the Plaintiff is entitled to the relief sought.
Nonetheless, I have proceeded to decide the case under the provisions of Order 15 rule 4 of the CPR; which empowers the Court to proceed to decide a suit in circumstances where a party fails to perform an act necessary in the further progress of a suit within the time allowed by the Court, like in the instant case.
I have decided the issues in the same order in which they were framed.
Issue No. us whether Godfrey Kakembo had the power to enter into the agreement for escavating murram with the Defendant. This issue arose out of paragraphs 5 and 6 of the of the amended written statement of defence where the Defendant pleaded that it entered into an agreement to escavate the murram on the suit property with one Godfrey Mudima Kakembo brother and holder of a Power of Attorney granted by the Plaintiff and therefore the lawful agent of the Plaintiff to whom it paid consideration. That it later on transpired that the said Godfrey Kakembo’s authority was disputed.
Mr. Mulira submitted that the Power of Attorney dated 23/3/84 (Exhibit Dl) was indeed signed by the Plaintiff and it gave extensive powers to Godfrey Kakembo, except the power to sell the land.
That his client would have given Godfrey Kakembo the powers of sale if he had intended to do so. He relied on the testimony of the Plaintiff and the said Power of Attorney in his submissions.
Secondly, Mr. Mulira submitted that the Power of Attorney was defective in that it was not witnessed by a Notary Public as required by section 83 of the Evidence Act. It cannot therefore be relied on.
1. The legality of the Power of Attorney (Exhibit Dl) on which the Defence is based, and
2. The contents.
“84. The Court shall presume that every document purporting to be a Power of Attorney and to have been executed before and authenticated by a notary public, or any court, Judge, Magistrate, or representative of any Government of the Common Wealth, was so executed and authenticated.”
On the second point, having held as I have regarding the first point, I also agree with Mr. Mulira’s submission that Godfrey Kakembo had no powers to sell the soil/murrum on the said land. Even if the said Power of Attorney was proper, and I have said it was defective, it did not give Godfrey Kakembo the powers of sale. He was merely to manage the Plaintiff’s affairs and to sue for recovery of and debts etc due to the plaintiff. The relevant part says:
In my name and on my behalf manage, sue for recovery and receive from every person and everybody politic or corporate in Uganda whom it shall concern, all demands for land, debts dues, goods, wares, merchandise chattels effects and things of what nature and description which now are or which at anytime or times during the subsistence of these presents shall or may be or become due, owing, payable, transferable, belonging to me in or by any right, title, ways or means however.”
The second issue is whether Godfrey Kakembo held out that he had the power to enter into the agreement of sale of murram with the Defendant. Mr. Mulira submitted that this issue be answered in the affirmative, since there is no doubt about it. He did not however elaborate on this point. The Plaintiff did also not testify on this point. The Defendant however, adduced the testimony of Mr. Godfrey Kakembo (DW1) who told Court during his examination in chief, that the Plaintiff, his elder brother did give him a Power of Attorney, (Exhibit Dl) which he used to manage the said land. That apart from handling suits in respect of the land, he also allowed several companies to escavate murram from the said land. He singled out Zimwe Construction, Paramount, Roko Construction and Sterling Engineering Company among those companies which escavated murram between 1986 and 1998 before the Defendant Company. He also told Court that he was the main person behind the sale of murram on the said land. DW2, Okello Jimmy corroborated the testimony of DW1. He told Court that he was the Defendant’s Foreman at the material time. His company required murram for construction work at that time. Sterling told him of the good murram at the suit property. He dealt with Godfrey Kakembo. Sterling was also escavating murram at the same time. From this evidence, it is clear that Godfrey Kakembo held out that he had power to enter the agreement to sell murram to the Defendant. The answer to the second issue is therefore for that reason in the affirmative.
The third issue is, whether the Defendant refilled the land after escavation. The Defendant had pleaded in paragraph 6 of the amended Written Statement of Defence that when it transpired that the authority of the said Godfrey Kakembo over the suit property was disputed by the Plaintiff, the Defendant agreed with the Plaintiff that the land be refilled which was done. However, none of the Defence witnesses confirmed that the land was refilled.
DW1, Godfrey Kakembo stated in cross examination that he was not aware of the agreement between his brother (the Plaintiff) and the Defendant to refill the land. DW2 did not even mention it, although he was the Defendant’s foreman at the material time. The Plaintiff on his part testified that he has brought the Defendant to Court because the Defendant escavated soil from his land and left a big pit, so the land has become useless. It cannot be used for anything. That the Defendant had originally said it would fill up the pit, it did so, but kind of half way. Apart from that, the Defendant also filled the pit with concrete and trash, rather than soil. So the land is still unusable. In cross examination, he said if the Defendant were to fill the remaining part he would have no problem with them.
PW2 — Dr. S. Kituuka a Land Economist and Valuation Surveyor with Dinge Professional Services tendered in Court a Valuation Report dated 15/4/2001. (Exhibit P2). He also testified that the plot is unusable because it was only partially filled, and even then, with trash and not soil. On this basis, Mr. Mulira invited the Court to hold in favour of the Plaintiff on this issue.
From the evidence on record, that is the evidence of PW1, PW2 and Exhibit P2, it indeed appears that the said land was not property refilled. Exhibit P2 included (6) coloured photographs of the parts of the escavated pit. I can see parts which show that some escavation was done, leaving a deep pit of red soil on top. The vegetation in this area is scanty as opposed to the original surrounding vegetation which is green and lush. Two of the photographs show an attempt to refill the land. I can see some thrash and concrete looking materials on the ground. This testimony was not controverted by the Defendant. I therefore accept it and find that although an attempt was made to refill the land after escavation, it was not fully and properly done. For this reason, I answer the second issue in the negative.
a. Ug. Shs.45m as compensation.
b. General damages.
c. Interest at 23% p.a from date of Judgment till payment in full.
e. Any other relief.
I have considered the arguments by Mr. Mulira in light of the evidence on record, in particular that of PW2 and Exhibit P2. While I agree with him as earlier stated that the hind was not properly refilled, I have no basis to award the Shs.45m compensation prayed for on the basis of Exhibit P2. This is because Mr. Kituuka confessed that they are not geological engineers. The report is therefore based on assumptions. They assumed that what was dumped on the land cannot be used for either construction or for growing crops. This is after he had stated on page 2 of the report that:
We have involved a land surveyor to cover the land surveying aspect, but we have not been able to procure services of a soil expert. Nevertheless, we (humbly) made detailed examination escavation of the soil base and also noted carefully the composite sub soils used in refilling part of the quarry pit.”
Clearly, this report cannot be relied on to prove the inability to use the land because the Report was produced by a land surveyor, who confessed in the Report that he has no expert knowledge of the soil. The Annextures to the plaint cannot also be relied upon since they did not from part of the evidence tendered in Court. On that basis, I find that the Plaintiff has failed to prove his alleged inability to use the land. He is consequently only entitled to general damages for the improper manner in which the land was refilled by the Defendant as clearly shown by Exhibit P2. I accordingly award him Shs.5m as general damages.
1. Shs.5m general damages.
2. Interest thereon at Court rate from date of Judgment till payment in full.
3. Costs of this suit.
M.S. Arach — Amoko
Judgment delivered in the Presence of:
1. Mr. F. Sentomero for the Plaintiff.
Mr. Moses Segawa holding brief for Mr. Tumusingize Benard for the Defendant.
3. Okuni — Court clerk.
M.S. Arach — Amoko