Court at Jinja Settles a 23-Year-Old Land Dispute, Holding That a Landowner Cannot Halt a Public Project by Refusing a Valuation Award Where a Statutory Remedy Exists Under the Land Acquisition Act

Waboga David
2 days ago
12 min read

High Court at Jinja Settles a 23-Year-Old Land Dispute, Holding That a Landowner Cannot Halt a Public Project by Refusing a Valuation Award Where a Statutory Remedy Exists Under the Land Acquisition Act

Facts

The applicant, Richard Kafumba, brought a constitutional application under Article 50 of the Constitution, alleging violation of his right to property under Article 26.

The dispute arose from the Bujagali Hydro-Electric Power Project, a national public infrastructure project for which Government compulsorily acquired approximately 450 hectares of land along the River Nile in Jinja District pursuant to the Land Acquisition Act.

The applicant claimed to be a customary owner and long-term occupier of land in Budondo, with crops and other developments. Government valuers assessed his land and crops using District Land Board rates approved in February 2000, prepared an award, and offered compensation.

The applicant rejected the compensation, contending that:

His land was grossly undervalued;
Certain crops were given a value of zero;
Compensation was neither fair nor adequate, and was never paid.

He therefore sought declarations that:

He was unlawfully deprived of his land;
The respondents were trespassers;
Titles issued to the project companies be cancelled;
Compensation be paid at current market value, together with general and exemplary damages.

The matter traversed the High Court, Court of Appeal, and Supreme Court over nearly 23 years, largely on procedural questions, before being remitted to the High Court for determination on the merits.

Issues

The parties agreed on the following issues:

Whether the applicant and all other persons whose land was compulsorily taken and other property destroyed to pave the way for the Bujagali Power Project have a right not to be compulsorily deprived of their land, crops, and other developments without payment of prompt, fair, and adequate compensation.
Whether the acquisition of the land by the 1st and 2nd respondents was lawful.
Whether third parties, specifically the 3rd and 4th respondents, could derive a valid title at law from a transaction arising out of such acquisition of land by the 1st respondent.
What remedies are available to the applicant and others affected by the Bujagali Hydro-Electric Power Project?

Submissions

Applicant’s Submissions

The applicant argued that he and others were customary owners deprived of land and property without compensation, violating Article 26 of the Constitution.

He relied on Advocates for Natural Resources Governance & Development & 2 Others v Attorney General & Another (Constitutional Petition 40 of 2013), declaring Section 7(1) of the Land Acquisition Act unconstitutional for allowing possession before compensation.

He claimed the valuation undervalued assets and that the government took possession prematurely. For the 3rd and 4th respondents, he invoked nemo dat quod non habet, asserting they could not acquire valid title from an illegal acquisition, and cited fraud cases like Assets Co Ltd v Mere Roihi (1905) and John Katarikawe v William Katwiremu (1977).

He sought declarations, title cancellations, market-value compensation, and damages, emphasizing illegality overrides pleadings per Makula International v His Eminence Cardinal Nsubuga (1982).

Respondents’ Submissions

1st and 2nd Respondents' Submissions (Attorney General and Uganda Land Commission)

They admitted the acquisition for public use but asserted compliance with Article 26 and the Land Acquisition Act. Compensation was assessed using 2000 District rates, offered promptly (with evidence from affidavits), but refused by the applicant. Disputes over adequacy should have been appealed under Section 13 within 60 days, not via Article 50 years later. Fraud was not pleaded and unproven. They argued disagreement on amount does not invalidate the acquisition, and remedies like damages were unwarranted per Rooks v Barnard.

4th Respondent's Submissions (Bujagali Energy Ltd):

It emphasized incorporation after initial proceedings and acquisition post-government possession. Affidavits showed lawful derivation of title from the government. Impeachment of title requires a plaint under Section 176 of the Registration of Titles Act with specific fraud pleadings, absent here. Evidence of fraud was speculative and inadmissible. It sought dismissal with costs.

Applicant's Rejoinder

He reiterated the case as a constitutional rights enforcement, not just a valuation dispute, with broad High Court powers under Article 50. Illegality (including premature possession) voids the acquisition, making respondents trespassers. He cited Belex Tours & Travel v Crane Bank (2009) to argue illegality can be raised anytime.

Legal Representation

Applicant: Counsel on record (not specified in ruling)
1st & 2nd Respondents: Attorney General
3rd & 4th Respondents: Counsel for AES Nile Power Ltd and Bujagali Energy Ltd

Court's Findings

Hon. Lady Justice Joanita Bushara analyzed issues 1 and 2 together, then 3 and 4 separately, citing Article 26(2) of the Constitution, which requires public purpose and prior prompt, fair, adequate compensation with court access. It referenced Advocates for Natural Resources Governance (2013) and Uganda National Roads Authority v Irumba Asumani (2015), affirming no possession before compensation.

The Court emphasized that the Bujagali Project was indisputably for a "public use." The core of the ruling rested on the distinction between a disagreement over value and a violation of constitutional rights.

On Issues 1 and 2:

The court found the acquisition for public use undisputed. Evidence showed a statutory award was made using District rates, offered promptly, but refused by the applicant.

"The applicant was notified of the award and offered payment, but refused to accept it, taking the view that the valuation was below market value." The court held this satisfied Article 26, as disputes over adequacy should use Section 13 appeals, not collateral challenges... "Disagreement over the amount does not, without more, render the acquisition unconstitutional. The proper remedy is to appeal the award... Failure to do so cannot convert a lawful exercise of compulsory acquisition powers into an illegality years later." Issues resolved negatively.

The Court emphasized that "prompt, fair and adequate" imports both procedural and substantive elements:

"Procedurally, there must be a timely and transparent process culminating in an award and a real opportunity to challenge it before an independent tribunal. Substantively, the compensation must reflect, as nearly as possible, the value of the property, taking into account the criteria laid down by law, including market value and developments."

Critical Distinction from Irumba:

The Court distinguished this case from the landmark Irumba decision:

"Unlike in the Irumba case, this is not a case in which the Government took possession without first assessing or offering compensation. In the instant matter, compensation was duly evaluated in accordance with the approved District Land Board rates; an award was made, a disturbance allowance was included, and payment was offered to the applicant."

Key Principle Established:

"The Constitution requires prompt payment, not necessarily agreement between the Government and every landowner on the exact amount. Where an owner disputes the amount, the question is whether the law provides a prompt and effective means to challenge the valuation before an independent court. Section 13 of the Land Acquisition Act does precisely that by permitting an appeal to the High Court within 60 days."

Failure to Exhaust Statutory Remedies:

"The applicant does not assert that he was denied access to the court under s.13; rather, he did not utilise that remedy. Instead, more than a decade later, he seeks to convert what is essentially a dispute about the adequacy of compensation into a human-rights violation and to invite the court to treat the entire acquisition as void ab initio. I am unable to accept that argument."

Constitutional Standard:

"Where the Government, acting under a law that provides for compensation and access to court, makes an award and promptly offers payment, the constitutional obligation under Article 26(2)(b) is, in principle, satisfied. Disagreement over the amount does not, without more, render the acquisition unconstitutional."

Rationale:

"In my view, what Article 26 forbids is arbitrary or uncompensated expropriation. It does not guarantee that every land owner will receive a figure with which he subjectively agrees, nor does it entitle them to reopen completed acquisitions by collateral constitutional challenges where adequate statutory remedies existed but were not pursued."

Issue 3: Validity of Third-Party Titles

Answered in the affirmative (in favor of respondents)

The Court found the nemo dat argument collapsed:

"The applicant's case against the 3rd and 4th respondents is premised on the maxim nemo dat quod non habet and the doctrine that illegal or fraudulent transactions cannot confer good title, even upon a purchaser. The logical foundation of that argument, however, is the premise that the Government itself acquired no valid title because the acquisition was unconstitutional and/or illegal. Having found that the applicant has not proved that the compulsory acquisition was unlawful, the nemo dat argument substantially collapses."

Pleading Deficiencies

"First, the pleadings: the notice of motion and original affidavits do not specifically plead fraud or misrepresentation against the 3rd or 4th respondent. The extensive discourse on fraud in the applicant's submissions, drawing upon cases like Assets Co Ltd v Mere Roihi and David Sejaka Nalima v Rebecca Musoke, is not supported by particularised pleadings. Under Order 6, Rule 3 of the CPR, where a party alleges fraud, the particulars must be stated with specificity."

Evidentiary Deficiencies

"Secondly, the evidence: a careful reading of the applicant's affidavits shows that they essentially consist of conclusions and suspicions regarding the project companies' knowledge of the acquisition process, rather than concrete facts demonstrating fraudulent conduct."

Strict Proof Required

The Court cited Kampala Bottlers Ltd v Damanico (U) Ltd, CA 2292 of 1995:

"a registered proprietor's title cannot be impeached except on proof of fraud brought home to that proprietor."

Limits of Makula Principle

"The applicant relies on Makula International (supra) and subsequent decisions to argue that illegality, once brought to the attention of the court, overrides procedural requirements. Those cases, however, do not dispense with the need to establish the factual basis of the alleged illegality or to comply with the substantive requirements of statutes such as the Registration of Titles Act. They stand for the proposition that a court cannot sanction an admitted illegality; they do not authorise a declaration of illegality on mere suspicion."

Conclusion

"In the present case, there is no clear illegality on the face of the record in relation to the 3rd or 4th respondent's titles. The Government's acquisition has been found lawful; the companies derived title under that acquisition; and fraud has neither been appropriately pleaded nor proved."

Issue 4: Remedies

All reliefs denied

Declaratory Relief

"The declarations that the respondents are trespassers and the orders for cancellation of their certificates of title presuppose that the Government never lawfully acquired title. That premise has not been proved, and those remedies cannot be granted."

Compensation at Current Market Value

"As regards compensation at current market value, the applicant is, in substance, asking the court to substitute, many years after the fact, a new award for the compensation he was originally offered and refused, now pegged to present-day values and conditions. To grant such an order in the context of an Article 50 application, without an underlying finding that the original award process was unconstitutional or unlawful, would be to re-write the Land Acquisition Act and undermine the statutory framework for timely challenges to compensation awards. This court cannot do so."

Punitive Damages

"Even if I were to assume some hardship and inconvenience caused to the applicant by the project, the evidence does not demonstrate the level of high-handedness or bad faith that would warrant exemplary damages against the respondents. The government embarked on a public infrastructure project, followed the statutory procedure, and offered compensation based on approved rates; the applicant disagreed with the valuation but did not utilise the available appeal procedure. In those circumstances, punitive damages would be wholly inappropriate."

Costs

Despite dismissing the application, the Court exercised discretion on costs given the 23-year litigation history and public interest nature of the constitutional questions raised:

"Although the general rule is that costs follow the event, that rule is not inflexible. In the particular circumstances of this case, I consider that it would not be just to impose on the applicant the respondents' costs after such prolonged litigation involving matters of public interest. I accordingly exercise my discretion to depart from the general rule and order that each party shall bear its own costs."

HOLDING

The Court dismissed Miscellaneous Cause No. 2 of 2002 and held:

The applicant failed to prove he was compulsorily deprived of property without prompt, fair, and adequate compensation in violation of Article 26 of the Constitution
The acquisition of land at Bujagali by the 1st and 2nd respondents was lawful
The 3rd and 4th respondents lawfully derived valid title from the Government's acquisition, and their titles are not impeachable on the evidence before the court
The applicant is not entitled to declarations, cancellation of titles, compensation at current market value, general or punitive damages, or any other reliefs sought
Each party shall bear its own costs

KEY TAKEAWAYS

1. Statutory Remedies Must Be Exhausted Before Constitutional Challenge

The most significant principle from this case is that landowners dissatisfied with compensation awards must utilize statutory appeal mechanisms under Section 13 of the Land Acquisition Act before attempting to challenge the acquisition as unconstitutional. Mere disagreement over quantum does not render an otherwise lawful acquisition void.

2. Distinction Between Process and Quantum

The Court drew a critical distinction:

Constitutional violation: Taking possession without any compensation or without following due process
Compensation dispute: Disagreement over adequacy of compensation offered through proper statutory process

The former justifies constitutional challenge; the latter must be pursued through statutory appeals.

3. "Prompt, Fair and Adequate" Does Not Require Agreement

Article 26's requirement of "prompt, fair and adequate compensation" is satisfied when:

Government follows statutory valuation process
Award is made based on approved rates
Payment is promptly offered
Access to independent court review is available

It does not require that every landowner subjectively agree with the valuation.

4. Timing of Constitutional Challenges Matters

The Court rejected the attempt to convert a compensation quantum dispute into a constitutional challenge more than a decade after refusing the original award. Constitutional challenges to compulsory acquisition should be brought promptly if there are genuine process violations.

5. Irumba Principle Has Limits

While Uganda National Roads Authority v Irumba Asumani established that government cannot take possession before paying compensation, this principle applies where:

No compensation is assessed or offered, OR
Possession is taken before any payment mechanism is implemented

It does not apply where compensation is duly assessed, offered, but refused by the landowner due to quantum disagreement.

6. Fraud Must Be Specifically Pleaded and Proved

To impeach registered titles of third parties:

Fraud must be specifically pleaded with particulars (Order 6 Rule 3 CPR)
Fraud must be strictly proved with concrete evidence, not suspicion
Fraud must be "brought home" to the registered proprietor being challenged
General assertions about knowledge or involvement are insufficient

7. Makula Illegality Principle Has Boundaries

The principle from Makula International v Cardinal Nsubuga that illegality overrides procedural objections:

Applies to admitted or clear illegality on the face of the record
Does not dispense with the need to establish factual basis of alleged illegality
Does not authorize declarations of illegality based on mere suspicion or speculation
Does not override substantive statutory requirements (e.g., pleading fraud, establishing grounds for impeachment)

8. Nemo Dat Requires Unlawful Root of Title

The doctrine that one cannot give better title than one possesses only applies if:

The original acquisition by the government was actually unlawful
If the government lawfully acquired land, it can validly transfer it to third parties
Third parties acquiring from a lawful government title obtain a good title

9. Article 50 Applications Have Limits

Constitutional enforcement applications under Article 50:

Cannot be used to circumvent or replace statutory remedies that should have been pursued
Cannot be used to reopen completed transactions years later where timely statutory remedies existed
Require proof of actual constitutional violations, not mere policy disagreements
Cannot be expanded into general impeachment proceedings without proper pleadings

10. Costs Discretion in Public Interest Litigation

Courts may depart from the general rule that "costs follow the event" where:

Litigation involves matters of genuine public interest
Constitutional questions are raised (even if ultimately unsuccessful)
Claims are not frivolous or vexatious
Systemic delays have contributed to prolonged litigation

11. Practical Guidance for Affected Landowners

When faced with compulsory acquisition:

Act promptly: Appeal compensation awards within the 60-day statutory period
Use statutory remedies first: Exhaust Section 13 appeals before constitutional challenges
Document everything: Keep detailed records of valuations, offers, and communications
Seek timely legal advice: Don't wait years to challenge acquisitions
Distinguish issues: Separate genuine constitutional violations from quantum disputes

12. Practical Guidance for Government Entities

To ensure constitutional compliance in compulsory acquisitions:

Follow statutory procedures meticulously
Ensure assessments use approved, current valuation rates
Make awards and offer payment promptly
Document all offers and communications with affected persons
Ensure appeal mechanisms are clearly communicated to affected landowners
Take possession only after following proper procedure

13. Implications for Project Companies

Private entities acquiring land from government compulsory acquisitions should:

Conduct due diligence on the acquisition process
Verify that statutory procedures were followed
Ensure government obtained valid title before transfer
Maintain documentation of the acquisition chain
Be aware that registered title provides strong protection absent proof of fraud

14. Systemic Justice Issues

The case highlights serious access to justice concerns:

23-year litigation period is unconscionable for property rights disputes
Loss of original court files undermines justice
Prolonged uncertainty affects all parties and development projects
Even meritorious constitutional questions should be resolved expeditiously

15. Balance Between Individual Rights and Public Interest

The judgment reflects judicial balancing:

Public infrastructure projects serve legitimate constitutional purposes
Individual property rights must be respected through proper process and compensation
Neither right is absolute; both must be accommodated through lawful procedures
The Constitution provides the framework for this balance through Article 26(2)

CONCLUDING OBSERVATIONS

This judgment represents an important clarification of the intersection between constitutional property rights and statutory compulsory acquisition mechanisms in Uganda. While reaffirming strong constitutional protection for property rights, the Court emphasized that these protections operate through, not despite, established statutory procedures.

The decision sends a clear message that landowners cannot sit on their rights for years and then attempt to invalidate completed public infrastructure projects through collateral constitutional attacks when they failed to pursue timely statutory remedies. At the same time, it preserves robust constitutional protection where the government genuinely fails to follow due process or provide compensation mechanisms.

For practitioners, the case underscores the critical importance of advising clients to act promptly and use statutory appeal mechanisms, while also carefully documenting any actual constitutional violations (such as taking possession without any compensation mechanism) that would justify immediate constitutional challenge.

The extraordinary 23-year procedural history of this case, including multiple appeals and the loss of the original file, serves as a sobering reminder of systemic challenges in Uganda's justice system and the urgent need for reforms to ensure the timely resolution of fundamental rights disputes.

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