THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KABALE
LAND CIVIL SUIT NO. 0022 OF 2016
KAMUKAMA IGNATIUS ------------------------------------------------------PLAINTIFF
KABALE DISTRICT LOCAL GOVERNMENT-------------------------------DEFENDANT
Before: Hon. Lady Justice Olive Kazaarwe Mukwaya
The Plaintiff, Kamukama Ignatius brought this action against the Defendant seeking;
- A declaration that he is the lawful owner of the suit land,
- An order for special damages,
- General damages and
- Costs of this suit.
It is the Plaintiff’s claim and it is an undisputed fact that at all material times, he has been the lawful owner of the land estimated to be measuring about 8 hectares located at Rwakashengwa Village, Rugarama Parish, Maziba Sub-county, Kabale District. Mr. Kamukama acquired the suit land by way of purchase from various individuals between 1989 and 1995. After he took possession and control of the suit land, the Plaintiff planted eucalyptus trees, pine trees and a banana plantation.
The Plaintiff contended that between 26th October 2015 and 3rd November 2015 his land was trespassed upon by the Defendant. This was while the Defendant was expanding an existing easement from Rugarama Parish, Maziba Sub-county, Kabale District running down to Uganda-Rwanda border. The Defendant’s workmen trespassed on the Plaintiff’s land by piling stones and red soil mixed with other materials on one part of the suit land using 2 tractors belonging to the Defendant. Further, the Defendant’s employees or agents or/ and machine operators extracted marram from the other part of the suit land and used it in the construction of the road on the Plaintiff’s land. In the process, the Defendant’s employees/agents while acting in the course of their employment, destroyed eucalyptus trees, pine trees, banana plantation and other property. The affected land is about 2.3 acres.
While the Plaintiff concedes that the road upgrade was a community initiative (Burungi Bwansi), he contends that his consent was not sought. As such, the Defendant is vicariously liable for the acts of its servants for the damage on his property amounting to UGX 60,000,000/=.
The Defendant, Kabale District Local Government denied the trespass on Plaintiff’s land. They contended that the alleged trespass was carried out entirely by the community under the ‘Burungi Bwansi’ initiative. The Plaintiff gave his consent to the expansion and upgrading of the feeder road through his land. It is the Defendant’s evidence that it is not the employees of the Defendant that were working on the road.
DW1, Bagamuhanda Turinawe, District Engineer of the Defendant, testified that the rehabilitation of the ‘Burungi-Bwansi’ road was under the funding of the Community Agricultural Infrastructure Improvement Programme (CAIIP) that was overseen by the Ministry of Local Government and that the Defendant representative who was the Project Support Officer was not involved in the supervision of the road works. DW1 added that the road run through a number of villages.
DW2 Teresforo Turyabakwe and DW3 Saturday David testified that they were residents of Nyakabongo village and Kagogo village respectively, both road affected villages. They were informed by their local council chairpersons about the upgrade of the Burungi Bwansi road, and they all consented to it, including the Plaintiff. DW2 testified that the suit land was swampland and therefore no marram could have been excavated from it as alleged by the Plaintiff. DW3 told this court that the part of the Plaintiff’s land in issue was on the lower part of the road which was not affected by any of the road works and no banana plantation or eucalyptus trees were destroyed.
Mr. Masereka, Counsel for the Plaintiff submitted that without a contract (documentary proof) or other evidence of the contractor, there is no proof that the Defendant contracted MOHA Construction Co. Ltd to rehabilitate, upgrade and expand the feeder road/ Burungi Bwansi road which traversed the Plaintiff’s land. Counsel further submitted that it is the Defendant that carried out the road works through its employees or/agent and in the process destroyed the property of the Plaintiff making the Defendant vicariously liable for the acts of her employees. Counsel relied on East African cases on the law of Tort by E. Veitch (1972 Edition) at page 78, where it states that an employer is in general liable for the acts of his employees or agents while in the course of the employer’s business or within the scope of employment. This liability arises whether the acts are for the benefit of the employer or the employee.
Ms. Kalembe, Counsel for the Defendant’s contended that as a liaison between the Ministry of Local Government and the contractor, the Defendant only provided project support for the affected road and recommended payment of the contractor upon completion of the works. This role was confirmed by the testimony of DW1. As far as the tractors used in the road works were concerned, they belonged to the contractor and not the Defendant. The operators of the machinery were also employees of the contractor.
Counsel maintained that the Defendant was not vicariously liable for the independent actions of the Contractor; MOHA Construction Limited. An employer could only be held vicariously liable where there was proof of a master-servant relationship. Evidence of such a relationship is a contract of service and not a contract for services for an independent contractor as it is in the instant case.
It was the Defendant’s prayer that this Court find that the Plaintiff had failed in his duty to prove that the Defendant was vicariously liable for the trespass on the suit land.
In rejoinder, Counsel for the Plaintiff submitted that on the issue of vicarious liability of the Defendant, it was an agreed fact in the Joint Scheduling Memorandum that the Defendant’s machinery was used to construct a Burungi-Bwansi road and also to carry marram and soil from the suit land. Counsel added that DW1 did not give a vivid account or adduce any evidence on how the machinery of the Defendant got into the construction of this road and not the machines of the alleged contractor. This was an indication that it is the Defendant’s employees who were operating these machines and the Defendant is vicariously liable for the acts of its employees.
Counsel for the Plaintiff added that the Defendant fronted the contractor MOHA Construction Limited as being responsible for the road works and that the tractors as well as the operators of the machinery being the employees of the contractor but no contract between the two was tendered in court. The alleged contractor was not brought to court to explain to court as who contracted and paid the same for the road works. According to Counsel for the Plaintiff, this was also a departure from the agreed fact in the JSM by the Defendant just to avoid liability. He implored this Court to find for the Plaintiff and to grant the prayers sought in the claim.
- Whether the suit land was trespassed upon by the Defendant?
- What remedies are available to the Plaintiff?
1.Whether the suit land was trespassed upon by the Defendant?
PW1, the Plaintiff, Mr. Kamukama Ignatius, is the undisputed owner of the suit land. It is also not in dispute that a road was constructed through the suit land. The Defendant’s position is that the road upgrade was requested by the community of which the Plaintiff is a member. DW1, Bagamuhanda Turinawe, District Engineer for the Defendant testified that the road upgrade was carried out for purposes of expanding and upgrading the community access road in the area. The Burungi Bwansi programme was carried out with the full knowledge and consent of the Plaintiff. DW2 and DW3 testified that they were residents of Nyakabongo village and Kagogo village respectively. These villages were both part of the road affected community. DW2 added that when the residents of the road affected community were informed about the impending road works, through their respective LC 1 Chairpersons, none of the residents objected. None of the witnesses for the Defendant was able to demonstrate that the Plaintiff had categorically given his consent to the road works.
The Plaintiff, PW1, denied being consulted on the matter. He testified that he lived in Kahondo Trading Centre which was a different village from the villages where the two defence witnesses lived. PW1 added that his consent was neither sought nor obtained. When he saw the tractors grading through his land, he tried to halt the works in vain. This is when the damage complained of ensued.
Counsel for the Defendant contended that as a liaison between the Ministry of Local Government and the contractor, the Defendant only provided project support for the affected road and recommended payment of the contractor upon completion of the works. This role was confirmed by the testimony of DW1. As far as the tractors used in the road works were concerned, they belonged to the contractor and not the Defendant. The operators of the machinery were also employees of the contractor.
Counsel for the Plaintiff contended that it was agreed between the parties and documented under Joint Scheduling Memorandum that the Defendant’s machinery was used to construct a Burungi-Bwansi road and also to carry marram and soil from the suit land
A quick perusal of the Joint Scheduling Memorandum between the parties gives very brief agreed facts as follows;
The suit land belongs to the Plaintiff. The Defendant’s machinery was used to construct Burungi Bwansi and also to carry marram and red soil from the suit land.
The scheduling conference is a preliminary step to the hearing of a civil suit. It is at the scheduling conference that points of agreement and disagreement, the possibility of mediation, arbitration and any other form of settlement are explored. See Order 12 rule 1 of the Civil Procedure Rules.
In this Court’s view, while the scheduling notes do not constitute pleadings under the Civil Procedure Rules, parties are bound by the facts as agreed upon in the Scheduling Conference. Turning to the instant suit, Counsel for the Defendant contention that the tractors used on the road works belonged to the contractor, MOHA Construction Ltd, and not to the Defendant was both unsupported by evidence, and also amounted to a departure from the agreed facts between the parties. This court shall disregard this submission.
After hearing the testimony of DW1, which raised the existence of a memorandum of understanding between the Defendant and the Ministry of Local Government concerning the road works, and a contract between the Defendant and the contractor, MOHA Construction, this Court ordered production of the contract. The witness promised to avail it but never did.
DW1 was of the opinion that as per the terms of that MOU, the Defendant was not liable for any trespass because it was a project which was directly under the auspices of the Ministry of Local Government and executed by the Contractor. The Defendant only appointed Mr. Kiganda James, the District Engineer at the time, as programme support officer and focal point person of the CAIIP. Counsel for the Plaintiff submitted that there was doubt that CAIIP, the programme governing the Contract existed but, it was the Plaintiff’s evidence, a photograph of the road construction notice board, Exb. P.2, that made a feeble attempt at pointing to its existence. I shall reproduce the notice board content here;
BORROWER: Government of Uganda- Ministry of Local Government
PROJECT: Community Agricultural Infrastructure Improvement Programme- Project 3(CAIIP3).
CONTRACT NAME: Rehabilitation of Katukura- Karambwe- Rwanda Border Road(15km).
FUNDING BODIES: ADB/GoU.
EXECUTING AGENCY: Kabale District Local Government
SUPERVISOR: District Engineer; Kabale District Local Government
NAME OF CONTRACTOR: MOHA Construction Ltd
This notice board told a slightly different story on role of the Defendant than DW1 had given this Court. On the board, the Defendant is described as the ‘Executing Agency’. The board also names the Defendant’s employee, the District Engineer as the ‘Supervisor’. If this was a Community Initiative, Burungi Bwansi road, the board was silent on this fact. Certainly, the community along the 15km stretch of road, was the direct beneficiary of the road upgrade. And the community may have requested for the road but it is the Government of Uganda through the Defendant that carried out the works. It was not the community that provided the funding for the project, drove the tractors to the site and widened the road. The Defendant did not provide funding for the project but it executed the works through the contractor and supervised the works.
In Onegi Obel and Achwa Valley & Ranch Limited v Attorney General and Gulu District Local Government (HCT-02-CV-CS-0066-2002), the learned trial judge relied on Salmonds Law of Tort, Ninth Edition at pg 207 to define Trespass to Land as follows;
- The wrong of trespass to land consists in the act of (a) entering upon land in the possession of the Plaintiff of (b) remaining on such land or (c) placing any material object upon it in each case without lawful justification.
- Trespass by wrongful entry. The commonest form of trespass consists in a personal entry by the defendant, or by some other person through his procurement, into land or building occupied by the plaintiff. The slightest crossing of the boundary is sufficient…nor indeed does it seem essential that there should be any crossing of the boundary at law provided that there is some physical contact with the plaintiff’s property.’
Further, trespass to land was defined in the Supreme Court decision of Lutaaya v Stirling Civil Engineering Co. Ltd C.A NO.11 of 2011 where Mulenga JSC at page 8 held that;
‘Trespass to land occurs when a person makes an unauthorised entry upon land and thereby interferes or portends to interfere, with another person’s lawful possession of that land; it is committed against a person in possession. Needless to say, the tort of trespass to land is committed not against the land but against the person who is in actual and constructive possession of the land’
In the instant suit, there was some back and forth between the parties about the relationship between the Defendant and the Contractor, MOHA Construction Ltd. However, PW1 testified that the tractors he saw on his property had the Defendant’s name on them. This Court did not see the Contract governing the road works but the Defendant’s tractor was duly identified by the Plaintiff. The absence of the Contract makes it risky for this Court to conclude that there was a master servant relationship between the Defendant and the Contractor. Having said that, this Court is satisfied that the Plaintiff has adduced sufficient evidence to prove that the Defendant entered upon his land without his consent.
The tort of trespass was committed at the point when the Defendant, as executing agency caused the entrance of equipment and personnel upon the Plaintiff’s land, for purposes of widening the road, without the consent of the Plaintiff. The Defendant did not deny that they provided ‘project oversight’ by the appointment of Mr. Kiganda James, the District Engineer. The argument that the Defendant did not initiate the road upgrade became moot the moment it entered upon the Plaintiff’s land with its workers, agents and equipment, without the authorization of the Plaintiff. It was also not tenable for the Defendant to argue by implication that the overall community benefit of the road upgrade rendered the Plaintiff’s rights to quiet enjoyment of his land nugatory.
Article 26(1) of the Constitution provides as follows:
Every person has a right to own property either individually or in association with others.
It is this Court’s finding that the Defendant actively participated in the road upgrade, widening, that adversely affected the land of the Plaintiff who did not authorize the entry. And therefore, the tort of trespass was committed against the Plaintiff by the Defendant.
What remedies are available to the Plaintiff?
The Plaintiff sought compensation by way of special and general damages. It was the duty of the Plaintiff to prove the extent of the damage on his land occasioned by the trespass of the Defendant. To his end he pleaded special damages for the destruction of his banana plantation, eucalyptus trees and pine trees.
Counsel for the Plaintiff contended that the Plaintiff’s witnesses had all testified to the damage, that eucalyptus and pine trees plus banana plantation were destroyed. Additionally, they testified that marram had been excavated from PW1’s land. Counsel for the Plaintiff rightly pointed out that that one of the agreed facts between the parties was that red soil and marram was carried from the suit land.
The photographs, Exb. P.3- P.6 also depicted some damage. The only attempt to value the damage was the Plaintiff’s listing the damage in his witness statement. He stated that he lost 200 Eucalyptus, 200 Pine, and 300 banana plants, he added the value of land affected at UGX 30,000,000/=. The total value of the loss was UGX 60,000,000/=. Counsel for the Plaintiff contended that this evidence by the Plaintiff and his witnesses was not challenged by the Defendant. It is a fact that the value of the damage was largely unchallenged by the Plaintiff.
Counsel for the Plaintiff contended that the witness’s oral evidence may suffice while proving special damages. He relied on a precedent without a citation and this Court could not therefore refer to it. It is the duty of Counsel to present authorities with accurate citation for Court’s reference.
The duty lay on this Court to determine whether the Plaintiff proved the damages as required under the law. The photographer, PW3 testified that the photographs depicted the extent of the damage as follows; Exb. P.3, the destroyed banana plantation, Exb. P.4, heaped stones, Exb P.5, destroyed trees, and Exb. P.6, soil destruction.
As far as this Court could gather the photographs did not depict a wide acreage of damage. Exb. P.3 showed less than 20 banana stems lying on the ground. Exb. P.4 illustrated a very deep hole, Exb. P.5 showed a large tree which had been uprooted and Exb. P.6 depicted another large hole.
The Plaintiff testified that the total area affected was 2.3 acres but if that was the case, the photographs did not support the extent of the damage.
It is this Court’s finding that the Plaintiff has failed to prove on a balance of probabilities that he suffered the damage to the extent claimed in the Plaint. His evidence falls short of proving claim.
Be that as it may, I am convinced that some damage was suffered on the excavation of marram for which I award UGX 10,000,000/=.
On the damage to the crops and trees I award a revised collective sum of UGX 8,000,000/=
As regards the value of the affected land, it was not sufficient for the Plaintiff to arbitrarily arrive at a value when experts in the field of valuation exist for precisely this purpose. No award shall be made as a result.
Finally, general damages are awarded at the discretion of the Court. Taking into consideration the inconvenience the Plaintiff has endured at the hands of the Defendant, I award a sum of UGX 5,000,000/=. This court finds that the Defendant should have taken a more humane and considerate approach to the Plaintiff’s plight.
In conclusion Judgment is entered for the Plaintiff and I hereby order as follows;
- The Defendant unlawfully trespassed upon the Plaintiff’s land.
- The Plaintiff is awarded Special Damages of UGX 18,000,000/=
- The Plaintiff is awarded General Damages of UGX 5,000,000/=
- Costs of the suits are awarded to the Plaintiff.
Olive Kazaarwe Mukwaya
9th July 2020
Delivered by Email to:
Mr. Godwin Masereka- M/S Beitwenda &Co Advocates- Plaintiff
Ms. Rita Kalembe- Attorney General’s Chambers- Defendant