Is a rock found in your land a mineral and therefore vested in the State?
A family in Oyam District has sued the Government of Uganda and Sino Hydro Corporation Ltd for unlawfully crushing ‘its’ rock into aggregate and using it to construct Karuma hydro-electric power dam without compensation, Oil in Uganda exclusively reveals.
In the suit Etot Paul and others Vs Attorney General and Sino Hydro Corporation Ltd, filed in 2015 in the Land Division of the High Court, the family of Mzee Etot wants court to compel Government and Sino Hydro Corporation Ltd – a Chinese company constructing the 600 megawatts Karuma dam, to pay for aggregate derived from the family rock.
According to the family, it all started in 2012, when the Ministry of Energy and Mineral Development decided to compulsorily acquire land near and around Karuma to pave way for the construction of the dam.
“Part of Mzee Etot’s land was among parcels that government acquired for construction of the dam. However, government only assessed the value of the land and development on it without taking into consideration the value of the rock on the land,” family spokesperson told Oil in Uganda.
The family claims that since it owns the land, it also owns the rock on the land, and therefore deserves compensation for the value of the rock.
“Consequently, government unlawfully took over the family’s parcels of land adjacent to river Nile, and handed it to Sino Hydro Corporation Ltd for the construction of the dam,” the plaint reads, further noting that part of the land which also contains a rock is also their property.
Through their lawyer, George Omunyokol, the family claims Sino Hydro Corporation brought a rock crusher and crushed the rock into aggregate that it is using to construct Karuma hydro-electric power dam free of charge.
Omunyokol argues that stones and rocks are not minerals and therefore government should compensate the family for unlawful use of its rock.
“The stone/rock in our clients land is not a mineral because the Constitution excludes it from minerals,” he states in the plaint.
Omunyokol’s argument is premised on Article 244(1) of the Constitution of Uganda that vests the entire property in and control of all minerals and petroleum in government on behalf of the Citizens.
Article 244 (5) of the Constitution excludes clay, murram, sand or any stone commonly used for building or similar purposes. “So, clearly, the Constitution is clear, it excludes stones from minerals,” Omunyokol told Oil in Uganda.
Consequently, the family hired professional geologists to quantify the value of the rock and according to the technical evaluation report seen by Oil in Uganda, puts the value of the rock at $ 6.5million (approximately Shs 22 billion).
According to the geologists, the rock has capacity to produce about 650,000 tons of aggregates. Therefore, at a market value of $10 (about Shs 33,000/=) per ton, the rock is worth $ 6.5 million (about Shs 22bn). Therefore, in the suit, the family wants court to order government to pay $ 6.5 million in compensation.
In addition, the Chief Government Valuer conducted valuation of the entire family property which includes; the value of crops, buildings and land to worth 813million Uganda shillings. These monies have not been paid to date.
Oil in Uganda has established that government withheld payment of the compensation, due to the standoff over the rock.
The family seeks a declaration that the actions of Sino Hydro Corporation quarrying the family’s rock, crushing it into aggregates and using the aggregates for the construction without compensation is unlawful and unconstitutional and seek compensation for the value of the crushed rock at the market rate.
However, the Attorney General, in a Written Statement of Defense to the suit, insists that a rock is a mineral and therefore vested in government and the family is not entitled to any compensation so court should dismiss the suit with costs.
“In respect of the claim for compensation for the rocks found on the suits, the plaintiffs [family] are not entitled to compensation in view of the provisions of the Constitution read together with various provisions of the Mining Act 2003,” the AG argues in the defense.
According to Andrew Karamagi, the legal argument by George Omunyokol is sound since rock is part of land and is not a mineral, hence its value should be factored into the computation for the final value of the said piece of land.
“There is a Latin maxim about land which argues to the effect that cujus est solum ejus usque ad coelum (translated to mean- he who owns the land owns everything above and below it). In mutatis mutandis with the Constitution of Uganda which precludes minerals, it is clear that this rock is on the land and is therefore part of the impugned land,” he told Oil in Uganda.
Last year, Uganda National Roads Authority (UNRA), was embroiled in wrangle with businessman Pius Mugalaasi, over the value of a rock on the Entebbe- Express highway on his land. The Roads Authority was eventually forced to divert the road.
The value of rocks found on land is becoming an issue given the demand of aggregate for various on-going projects. If for instance the court rules that a rock is not a mineral, and therefore a property of the land owner, even when exploited for commercial purposes, will set a precedent that could raise the value of rocky lands.
Report by Edward Ssekika.
High court Masindi has indefinitely postponed the hearing of the Rwamutonga case where more than 200 families were brutally evicted to pave way for the construction of oil waste treatment plant, Oil in Uganda has learnt.
Justice Albert Rugadya Atwoki, High Court resident judge Masindi was expected to give a ruling on an application on January 19, 2017but informed the court that he would make a ruling on notice.
According to Bashir Twesigye, Executive Director Civic Response on Environment and Development, the judge’s move to make his ruling on notice shows that the judge is not comfortable with the case hence the hesitation to make a decisive ruling.
“Hon. Justice Rugadya should not have any excuse ruling on the case because he has had six months to study the case,” he argued.
“The judge making a ruling on notice means that he will make a decision when he feels ready,” he explained to Oil in Uganda, adding that since the first ruling was done last year, this second ruling would give the evictees a mileage and has been pending for a year.
The families were evicted in August 2014 from the two pieces of land; one titled in the names of Robert Bansigaraho and another in Joshua Tibagwa. The affected families have since been living in Kakoopo Internally Displaced Persons camp (IDP) with no stable source of livelihood.
Nelson Atich, Bugambe District Councilor and representative of the evictees told Oil in Uganda, that they are shocked by the judge’s decision to make the ruling on notice.
“We are now thinking of petitioning the Principal Judge over this matter,” he stated.
“When we went to court on 19th, January, 2017, we were surprised when the clerk to the judge told us that the judge will give us the ruling on notice. We are in a dilemma, but we think we are not getting justice from courts of law,” Atich said.
He further added that the evicted families have been living in a camp for close to three years now under inhuman conditions yet the case has not been given priority,” Atich said.
Oil in Uganda has learnt that the court ruling was actually meant to be given on December 8, 2016 but was postponed to January 19, 2017.
Last year, Justice Simon Byabakama, the then resident judge Masindi ,ruled that 53 families out of the 200 families affected were illegally evicted on land owned by Robert Bansigaraho since the eviction court order was issued in error.
Justice Byabakama in his ruling also ordered Bansingaraho to compensate the evictees for the unlawful eviction.
“The eviction was unlawful and should not have happened in the first place because at the time of the execution of the warrant of vacant possession, there was an ongoing suit to determine true ownership of the land,” ruled Justice Simon Byabakama last year.
The court went ahead to award costs of the application to the residents, but declined to restore them on the land until the main suit was determined.
In their case application, the evictees, through their lawyers Iam Musinguzi of Musinguzi and Co. Advocates and Jonathan Okiria, an advocate with Justice Centers Uganda in Hoima are seeking a declaration that the families were unlawfully evicted by Tibagwa Joshua and should be awarded compensation.
In November 2016, Betty Amongi, Minister of lands visited Rwamutonga camp and appointed a probe committee to investigate and establish the rightful owners of the disputed land.
According to Isaac Kawooya, Hoima Resident District Commissioner, the committee finalized its investigations and has submitted a report to the minister.
Report by Edward Ssekika
Government will in February 2017 relocate 46 families who opted for resettlement to pave way for the proposed oil refinery in Kabaale parish, Buseruka sub-county, Hoima District, Francis Elungat, the Land Acquisition officer Ministry of Energy and Mineral Development has revealed.
In June 2012, government acquired a 29sq. Kilometre piece of land covering 13 villages Hoima District thus displacing 7,118 people.
The families are to be resettled on a 533-acre piece of land in Kyakabooga village in Buseruka sub-county; 3kms off Bisenyi trading centre located along Kaiso-Tonya road. Kyakabooga village is located 20 kms away from Kabaale parish.
Elungat said that government will first hand over the 46 completed houses to the affected families in February and also provide food supplies to the families for the next six months.
“Each family has been promised a cow, two goats, 10 kilograms of maize seedlings, a machete, hoe and other domestic tools,” he revealed, adding that these supplies are meant to sustain the families till when they will be self-reliant.
“The other 29 families that did not have houses on the land will also receive land titles of their lands in this same area,” he added.
According to Elungat, each family will be allocated a piece of land the same size as the one they previously owned in the refinery area.
“We are giving a minimum of one acre even for those who had less than an acre and each resettled family will have two land titles; one for the house and another for the farmland,” he noted.
Mixed feeling over house design
The completed houses seen by Oil in Uganda, will each have one sitting room, three bed-rooms, an inside bathroom and a kitchen. Outside facilities such as outside kitchen area, pit latrine and bathrooms have been provided for.
The houses will also be connected with hydroelectric power.
Government has also built a seven classroom block about 200 metres away from the resettlement village and Buseruka health centre; which is about 5 kilometres away, has been expanded and upgraded as part of the Resettlement Action Plan implementation to cater for the medical needs of the families.
Despite the houses being built in an urban-like setting, some of the families to be resettled have expressed concerns over the designs.
Ephraim Turyatunga, 47, says Government promised them a 3-bed room house which has a kitchen, toilet, a sitting room and a store.
However, looking at the houses built, Turyatunga says, the kitchen is very small and no store has been provided.
He argues that his family is comprised of 15 people who may not fit into the three bed room house.
“I stay with my father, mother and two of my married sons and their families. Will we all fit in that small house?” he questioned.
“Even the food package which government is providing for is not going to be enough to feed my family.”
Warom Gura, 50 and a resident of Nyahaira village says he is no longer interested in being relocated.
“I changed my mind. I want compensation but am not sure if Government will listen to me” He told Oil in Uganda.
Gura had a semi-permanent house built of mud and wattle with an iron roof on a 13 acre piece of land where he also cultivated and reared livestock.
“That small house they are giving us in Kyakabooga will not be enough for me since I have a family of 12 people,” he stated.
According to the Hoima district physical planner Robert Mwanguhya, the construction of resettlement houses delayed due to the numerous bureaucratic consultation processes between government, consultant and the project affected persons.
“Government had initially wanted to build a house in the respective land of each relocated family, but the plan was opposed by the affected families on grounds that they wanted to maintain social ties with neighbours” he said.
“We changed the plan to suit the proposals of the families. Now they are shifting goal posts but it is too late” Mwanguhya added.
According to Dennis Obbo, Ministry of Lands spokesperson, in 2015 a team of physical planners conducted a topographic survey that informed the physical planning that was participatory.
The families have waited for resettlement for over 4 years since government commenced the implementation of the Resettlement Action Plan (RAP).
Oil in Uganda has also learnt that Strategic Friends International and government officials have already briefed the refinery-affected persons about the impending relocation exercise.
Report by our Hoima Correspondent
Lands Minister, Betty Amongi, on Monday visited the disputed Rwamutonga land in Hoima District and set up a committee to investigate and establish its rightful owners. Read More
At least 27 people have died from diseases and starvation two years after being violently evicted from a disputed chunk of land in Rwamutonga, Hoima District. Read More
Locals say their customary land is being fraudulently registered in other people’s names who later use the fake titles to evict them
Uganda’s biggest mining project accused of manipulating locals into signing unfavourable land lease agreements. Read More
A recently concluded survey to determine a pipeline route from the proposed refinery in Kabaale Parish to Buloba, Wakiso district, close to the capital Kampala, has left a section of Hoima residents worried they could lose their land. Read More
The Masindi High Court on Thursday delivered what may be the first set of good news that the more than 250 homeless families have received in over a year when it ruled that their eviction from their homes in Rwamutonga, Hoima, was illegal. Read More
The affected families have waited three years for their new homes, and will have to wait seven more months to relocate. Read More