Kafumba Vs Attorney General & 3 Ors (Misc. Application No. 002 of 2002) [2015] UGHCCD 149 (4 May 2015)

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT JINJA

MISC. APPLICATION NO. 002 OF 2002

RICHARD KAFUMBA ::::::::::::::::::::::::::::::::::::: APPLICANT

VERSUS

1. ATTORNEY GENERAL

2. UGANDA LAND COMMISSION

3. AES NILE POWER LTD

4. BUJAGALI ENERGY LTD. ::::::::::::::::: RESPONDENTS

BEFORE: THE HON. JUSTICE GODFREY NAMUNDI

RULING

This Application was filed under the provisions of Article 50 (1) (2) of the Constitution 1995, Rule 3 (1) of the Fundamental Rights and Freedoms (Enforcement Procedure) Rules S.I No. 26 of 1992, and Order 48 Rule 1 of the Civil Procedure Rules (currently Order 52 Rule 1 of the Civil Procedure Rules).

It seeks the following orders:

1. A Declaration that the Applicant and all other people affected by the Bujagali Hydro Electric Project have a right not to be compulsorily deprived of their land, crops and other developments without payment of prompt, fair and adequate compensation.

2. An order that the Respondents jointly and severally do pay prompt, fair and adequate compensation to the Applicant and all people affected by the Bujagali Hydro Electric Project in Budondo Sub-county Jinja District and Wakisi Sub-county, Buikwe County for all the identified and documented land crops and buildings taken over by the Respondents at market values to be assessed by Court.

3. The Respondents do pay the Applicants costs of this Application.

The grounds relied on are:

1. The Applicant is a customary owner under or Licences of land with developments thereon at Budondo Sub-county.

2. The Respondents have compulsorily taken over the said land and that hundreds of other residents in the area and leased it to the third Respondent for purposes of the Bujagali Hydro Electric Project without first paying prompt adequate and fair compensation.

3. That the Respondents have refused to pay or compensate for crops which were not more than four months old at the time of valuation.

4. The Respondents have refused to purchase the said land and developments thereon at a market price but are instead offering compensation which is not prompt, fair or adequate.

The brief facts of this matter are that the Applicants are customary owners of the land at Bujagali under Article 237 (3) (a) of the Constitution and Section 3 of the Land Act.

The Respondents compulsorily took over the said land, on which the 3^th Respondent procured a Title and began setting up a power plant. The 4^th Respondent procured a lease over the same and is constructing a power plant thereon.

The Applicant and others have however never been compensated for their land and crops and other developments on the land.

This matter was first filed in 2002 and nothing much happened until 2007 when the Applicants applied to substitute the 3^rd Respondent i.e. AES NILE POWER LTD with the fourth Respondent BUJAGALI ENERGY LTD. This was on grounds that the 3^rd Respondent had wound up and was no longer operational and its role had been taken over by the 4^th Respondent.

The Judge then Justice Zehurikize ordered that the 4^th Respondent be added as a party. He also ordered that if the Applicants so wished, they could withdraw their claims against the 3^rd Respondent. Apparently this was not done.

Later on in 2012 when this matter came up for hearing, the Respondents raised preliminary objections about the competence of the Application before this Court.

It was claimed that the Application amounted to a representative action made on behalf of unidentified and unspecified number of people filed without leave of Court, at the time when the 4^th Respondent was not in existence.

The other objection was that the High Court had no jurisdiction to grant the remedy of a Constitutional Declaration.

Justice Anglin overruled the 2 objections firstly that a matter brought under Article 50 (1) and (2) of the Constitution does not require an order for a representative action. She similarly overruled other objections on grounds that where the objection goes to the substance of the case, the Court decides on the merits of the case on the basis of Law only. She directed therefore that the matter be heard on its merits.

The instant Application is supported by the affidavit of the Applicant, Richard Kafumba.

• Therein he avers that he is owner of customary land in Budondo sub-county, Kagoma County and he has developments thereon.

• That the Government of Uganda through the 2^nd Respondent is in advanced state of leasing a big piece of land to the 3^rd Respondent for purposes of the Bujagali Power Project and that will displace thousands of people who inhabit Budondo Sub-county and Wakisi District.

• That the 4^th Respondent took over the assets and liabilities of the 3^rd Respondent and that the 4^th Respondent is in advanced stages of constructing Bujagali Hydro Power Project.

The affidavit then narrates that the officials of the Respondents informed the Applicant and other residents of the affected areas that the land and developments thereon would be valued and negotiate purchase the said land at market prices/values.

Paragraphs 6, 7 and 8 narrate that valuation was carried out by valuers commissioned by the Respondents and that the said valuation was carried out. That during valuation several crops were cut and those affected were compensated.

Further that land and crops affected were identified and documented. Crops which were not more than 4 months were indicated as young.

Paragraphs 9-13 continue with the narration.

A set of documents for each affected resident which included personal identification, description of the land, and assessment of compensation for crops were produced.

That their assessment used a base value of Shs.800,000/- per acre which is below the market value of land which is in the region of Shs.3,000,000/- per acre.

That the rates used by the Respondents are those approved by the District Land Board of 9/2/2000 and do not reflect the current market value of the crops which have since grown. Crops which were below 4 months old were valued at Shs. Zero.

The Applicant and residents then appealed to the Minister of Lands for intervention but he failed to do so.

In Paragraph 18 of the affidavit, the Applicant avers that he relies on the Annextures attached to the affidavit of 10/01/2002 filed in Court.

The Annextures referred to in Paragraph 18 are:

1. A list of those affected.

2. Lists of affected residents with personal identification description of the land and assessment of the crops.

3. A copy of the approved list by the District Land Board for compensation rates.

4. A letter to the Minister of Lands for the intervention of the Minister, copies of correspondences, and

5. A letter threatening compulsory acquisition of the Applicants’ land under the Electricity Act 1999.

The first respondent did not file an Affidavit in reply to the Amended Application which includes the 4^th respondent. They however filed a Supplementary Affidavit in which they aver that the 3^rd Respondent was acting as an Agent of the 1^st and 2^nd Respondent in respect of the acquisition of the land for the Power Project.

It is further averred that the claim that Shs.800,000/- was the value per acre of land was not true. That that is the value for the land in the Islands. That the land on the main land was valued at Shs.1,200,000/- per acre.

It is also averred that the Applicant was offered the value of his holding but he refused to accept.

Finally that the Applicant has exhibited no authority to represent any other person.

The 4^th Respondent’s affidavit in reply also raises issues of lack of orders for representative action. Further that the 4^th Respondent was not in existence at the time of filing this suit and is hence wrongly sued in connection with violations of the Applicants’ rights and that it is a separate legal entity.

In an additional affidavit, the 4^th Respondent has averred that the land in question was compulsorily acquired by the Government for public use and any compensation is the responsibility of the Government. The 4^th Respondent therefore denies being responsible for any compensation or the activities of the 3^rd Respondent.

I have looked at the pleadings and I have also gone through the submissions by both parties.

While the Application is for prayers under Article 50 (1) and (2) of the Constitution, the submissions by the Applicant allege matters which are not in the pleadings. For example the Applicants raise issues that the land in question was acquired in contravention of the Constitution and that the 4^th Respondent is a trespasser. Further that the 4^th Respondent’s Title is impeachable for having been obtained fraudulently.

The Applicant in the said submissions further goes ahead to pray for punitive damages citing Section 33 of the Judicature Act and Section 98 of the Civil Procedure Act.

• They further pray that the Respondents’ Certificate of Title should be cancelled.

• Further they pray compensatory damages for wrongful deprivation of the suit land.

• Damages for inconvenience caused to the Applicants for deprivation of the use of the land.

This matter was brought under the provisions of Article 50 (1) and (2) of the Constitution. The said Article for all intents and purposes deals with public interest litigations.

In Misc. Application No. 39/2001; The Environmental Action Net Work Ltd. Vrs. Attorney General and National Environment Management Authority, Justice Ntabgoba Principal Judge as he then was observed that there are decided cases where an Organization can bring public interest action on behalf of groups or individual members of the public even though the applying organization has no direct individual interest in the infringing acts it seeks to have addressed. He cited the cases of Reg. Vrs. I.R.C Exp. Federation of Self-Employment (H.L.E) [1982] A.C 643 and Rev. Christopher Mtikill Vrs. The Attorney General, Tanzanian Civil Suit No. 5/1993 (unreported).

In the case of Environmental Action Net Work Ltd. (supra), the Applicant sought to enforce the rights of non-smoking members of the public to protect their rights to a clean and healthy environment.

That case is distinguishable from the instant case where there is a specific and defined group of affected people who are clearly listed in the pleadings. (See Annexture to the Applicant’s affidavit). The said group of people interacted with the Respondents, Valuation of their properties was carried out and an offer for compensation was made. The said offer was declined by the Applicant and his group as being inadequate.

A look at the prayers and allegations also has a lot to tell about the nature of this matter.

The Applicants’ claim that the 4^th Respondent acquired the suit land by fraud.

Under Order 6 Rule 3 of the Civil Procedure Rules, where a Plaintiff seeks to rely on fraud, the particulars and dates must be stated in the pleadings.

Fraud must be specifically pleaded and proved. Ref: Dr. Adeodauta Kikitimwa Vrs. Edward Maudo Wakida CA 3/97. Therein it was held that “It is a cardinal principal that fraud cannot be presumed. It has to be proved strictly, and the burden being heavier than on a balance of probabilities and fraud must reside in the transferee.”

In the instant case there was no claim of fraud in the pleadings. The overall observation is that all the matters raised in this Application cannot be adequately handled in an Application of this nature.

The remedies that Article 50 (1) and (2) of the Constitution in my view are limited in nature and cannot cover what the Applicant requires in this Application. Section 19 of the Civil Procedure Act is to the effect that suits have to ordinarily be brought in the manner prescribed by the Civil Procedure Act.

In exceptional circumstances, proceedings begun otherwise than by Plaint, the circumstances are usually clearly stated. These rules of procedure should be complied with. They are not mere technicalities to hide under. Ref: Bhari Vrs. Khan (1965) E.A 95. The rules of procedure cannot be got rid of by a side wind.

The claims and prayers in this application require proof by evidence, some of it by expert witnesses, production of records etc.

It is therefore dangerous to purport to adjudicate on the issues raised in this Application on the strength of the affidavits.

The materials therein is insufficient. Witnesses on various aspects cannot be availed for cross-examination and scrutiny.

This Court would not for example consider awarding General damages to an unspecified group of people without evidence as to the nature of injury incurred, the quantity of damages envisaged and hence be able to determine the quantum of the said damages.

The Applicant is free to file an Ordinary Suit and if he wishes to act on behalf of his colleagues he can obtain the requisite order for representative action under Order 1 Rule 8 of the Civil Procedure Rules.

For the reasons above, I decline to deal with the merits of this Application. It is improperly before this Court and it is dismissed with costs to the Respondents as against the Applicant.

Godfrey Namundi

JUDGE

04/05/2015

04/05/2015:

Applicant in Court

Respondents absent

Galisonga for Applicant

Court: Ruling delivered.

Godfrey Namundi

JUDGE

04/05/2015