Dr. Jjemba v Uwizera (Civil Suit 887 of 2018) [2018] UGHCLD 86 (15 May 2018)

Full Case Text

### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

#### (LAND DTVTSTON)

# cIvIL SUIT NO.887 0F 2()14

5 DR. PITO JJEMBA PLAINTIFF

### VERSUS

ROBERT UWIZERA DEFENDANT

## Before: Lada Justtce Alexandra Nkonoe Ruaadua

### JUDGMENT:

# 10 Introduction:

The defendant, Mr. Robert Uwizera is the rcgistcred proprietor of land comprised in Kyadondo LRV Block 268 plot 226, plots 91O, 977 and 9O7 at Naziba measuring approximately O.9 14 hcctares.

The plaintiff Dr. Pito Jjemba who is the registered owner of the neighbouring plot located at Naziba comprised in block 268 plot 428 filed this suit against him claiming ownership of that iand and trcspass committed by the defendant.

He claimed that the defendant had created the access road encroaching on his land and had it fenced, without the plaintiff's authority, which also made it impossible for him to start any development on that 1and.

20 He further claimed that this was a lease property with covenants which he had to comply with in a timely manner but could not, because of the defendant's actions, which he has led him to suffer from time he acquired the lease in 2010.

The defendant in denying trespass however claimed that the plaintiff had no interest in the suit land over which he had obtained the lease on 27n July, 2005;

25 that the suit land has been known to have its access road as it has been in

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existence for more than 10 years and the neighbors have always used it as a public road.

That he set up a structure on the then plot 970 and this was before the plaintiff acquired the neighboring p1ot.

5 The defendant subsequently acquired planning approval by Wakiso District Engineering and Planning Authority, which plan reflects the same access road as it was.

Accordingly, that the plaint did not disclosc any cause of action against him

### Representation:

10 The plaintiff was represcnted by M/s Cllfs & Co, Aduocates. The defendant on his part was representcd by M/s KTA Adaocates.

# Aqreed facts:

The facts as agreed upon between the parties are that the plaintiff is the registered proprietor of the land at Naziba comprised tn block 268, plot 428 which measures O.2O2 hectares.

Thc defendant is thc registcrcd proprietor of the land comprised in Kgadondo LRV Block 268 ptots 91O, 911 and.9O7 land at Naziba.

### Issues:

The foilowing were the agreed issues:

- 20 7) Whether the detend.ant encroached onto the platntilfs land, Block 26a pbt 428; - 2) Whether the defendant encroached. on the access road.l - 2s 3) Remedies aoailable

# Deterrnination of the issues (No.1 and 2):

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By virtue of section 1O1 (1) of Bvidence Act, Cap. 6, whoever desires court to give judgment to any legal right or liability depending on the existence of any facts he/ she asserts must prove that those facts cxist.(George William Kakotna aAttorneg General [2O1O] HCB 7 at pdge 78).

- 5 The burden of proof lies therefore with the plaintiff who has the duty to furnish evidence whose level of probity is such that a reasonable man, might hold more probable thc conclusion which thc plaintiff contcnd, on a balance of probabilities. (sebuliba os Cooperatiae Brrlr,k Ltd, [1982] HCB 13O; Oketha vs Attorneg General Civil Suit No, OO69 of 2OO4. - Irespass has been defined as an unauthorized entry upon land that interferes with another person's lawful posscssion. (Justin Lutaga a Stirling Ciuil Engineering Compang, Suprerne Court Civil Appeal No. 1" 1. of 2OO2, the Suprerne Court), 10

The plaintiff who testified as Pu7 informed court that through a land agent, he got to know about the land comprised in plot 428 which was available for leasing from Buganda Land Board. That he carried out duc diligence and found that the land had no third party interests or other adverse claims. 15

He also found that the neighbouring land was undeveloped and through the lessor's surveyors, mark stones were place on his land and in accordance with

20 the deed plans.

> During that time the access road was also demarcated and its stones placed on the ground, which created a clearly marked estate. The paperwork was also marked by his lawyers as authentic.

On 17m March, 2010 he signed a lease agreement with the lessor and the accompanying fees and charges were paid, including ground rent for 5 years. He thereupon took possession of the iand as he waited for the certificate of title, a requirement from the lessor before approval of the development plans. 25

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However, that sometime around 27ft Decembe r,2OlO when he visited the land he came across a newly graded road passing through his land; intended to serve several plots 9O7, 425 and 426 and other plots below him. The road created by the defendant ignored the correct demarcation as contained in the prints.

5 That the process of subdivisions by the defendant for his newplots 9O7'971 did not follow the original boundaries. New mark stones were placed in front of the original mark stones for plot 226 and all efforts to amicably settle the matter between him and the defendant were not fruitful.

According to him, the encroachment which reduced the size of his plot and affected the useable part made it difficult for him to develop the land for the past ten years, yet he has continued to pay the ground rent to the lessor. 10

The defendant on his part testified as Dut7. He claimed that at the time he acquired the land there was an access as per the district plan for the area to which all plots in the area were complying.

That he made no changes to the plot he acquired which complied with the district plan. In 20O8, he embarked on the process of subdividing the suit property by notifying and seeking permission from the BLB. 15

The permission was granted, as per letter dated 17th February, 2OO9, ref: DExh 4. A request for deed plans for plot 225 was made on 20ft December,2OOT and all relevant fees were paid by him.

During the opening of the boundaries that followed, the surveyors discovered that there was an error in the plotting of plot 225. However, this was never communicated to him.

It was not until later that he was informed that his titie was not corresponding to that of mapping and survey. It had extra iand which could not be explained by BLB who had done the plotting and mapping. 25

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BLB never rectified the error and proceeded with the subdivision based on the wrong plotting. He obtained the lease on 276 July, 2005. It was not however until 3.d December, 2015 as per DExh 7, that the subdivision for plot 226 into 4 plots was approved. The Registrar oftitles was then directed by BLB to prepare separate titles as per the deed plans.

The defendant's prayer therefore was for the dismissal of the suit

## Consideration bu court:

It is not in disputc that thc plaintiff is the registered proprietor of the land comprised in LRV Block 268, plot 428, rr,easurtng O.2O2 hectares leased from BLB. The plot was created in 2010, from the mother plot 173, together with other plots 422 to 438, and according to the plaintiff, these plots had their own network of access roads, with plot 439 as residue by balance.

The lease agreement marked DExh 2, and certificate of title tendered in as DErh I prove that the defendant on his part acquired registered ownership of former

15 plot 226 at Naziba in 2O05; having been granted the lease by BLB vide Min. 02/ s2/ 24/ 2oos.

Subdivisions were later made out of the defendant's plot 226 amongst which was plot 911 (DExh 8/, which was registered in the names of the defendant on 8e January 2008.

20 A careful search on the record also indicates that the defendant's application for the lease was made for plot 266, (but not plot 22Q, for the land measuring 2.26 on 24ft June, 2005. (However, as observed by this court, the error apparent in plot numbering appearing in the application was never rectified, making it appear that the defendant applied for plot 266 but instead became registered

25 owner of plot 226).

> Be that as it may, the lease offer to him was made on l"t September, 2005 for plot 226. The certificate of title for the iand for that plot was entered into the names of the defendant, about three years later, on 6ft January, 2O08.

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The initial term was for 5 years, w.e.f,. 1"t September, 2OO5. (Ref DExh 2), On 4e September, 2008 the defendant wrote to BLB seeking consent to subdivide plot 226. There is nothing to show that after its expiration in 2010 the lease term lor plot 226was extended to 49 years.

5 The certificate of title for the newly created plot 97 7, a subject of the dispute however was entercd into the names of the defendant on 8e January, 20O8, two days after the mother plot 226 was registered into his names. This was before the defendant wrote to BLB to seek for consent to subdivide its n:.otl:er plot 226.

That also implied that by 17th March, 2010 when the plaintiff entered into the

lease for BLB plot 911 (DExh 8) was already in existence, but then, so was plot II3 as the mother plot for the plaintiff's plot 428, plot 773 having been created earlier than both plots 226 and 977. 10

Court further noted that beforc consent was obtained to subdivide plot 226, a sum of Ugx 3,39O,OOO/= was paid out by the defendant in anticipation of the subdivision. (Ref letter from BLB dated 1Vn Febntary, 20O9: DExh 4.)

Since by that time the subdivisions for plot 226 and a title to plot 977 lnad aiready been made in the names of the defendant, it meant that the defendant caused the subdivision even before he paid for it and worse, before the BLB consent for its creation was obtained.

The record as a matter of fact reflects the position that the application and payment of subdivision of plot 226 was concluded on 16e December, 2013. A reminder was made in writing by the defendant asking for the sub division of plot 226. 20

The reminder was addressed to the Chief Surveyor, on 26b May, 2015, several years after the processes of subdivision and registration of plot 9If into the defendant's names were already concluded. 25

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It is also not in contention that by 20 15, the plaintiff had already become registered owner of plot 428. He had been in possession of the land for a period of five years.

The correspondences regarding the subdivision indeed do indicate that the request for consent was made by the defendant as early as 2008 and that there was a delayed response from BLB. From the explanation on record by the fie1d surveyor in2Ol4, a technical problem had been discovered during the survey.

taken place.

The surveyor had explained that a subdivision could not be done since the plot areas could not ta11y with the total area of the parent p lot 226. Needless to add, by that time of discovery of the anomaly, the subdivision of plot 226 had already

It is not in disputc tlnat plot 226 was a distinct plot at the time belore the subdivision. It had its original boundaries and there is nothing on record to indicate that its boundaries interfered with those ol plot II3 created earlier.

It is the plaintiff's claim however that upon subdivision of plot II3, the newly created plot 428 was separated from what was formerly plot 226 by an access road, serving the plots below plot 428, 15

That despite several protests however, the defendant had graded the access road through the plaintiff's plot 428 to access his (the defendant's) plot 977 as indeed confirmed through the various surveys made between 2OlO and 2014.

The dispute thus majorly rotated around the encroachment caused by the questionable subdivision, grading and fencing ofthe access road which affected the useable area of plot 428, all purportedly done without the consent of the plaintiff.

Secondly, the disputed subdivision into plots 907-971, without prior consent of BLB also disregarded the existing boundaries of plot f . I3. Deduced from the findings ofthe survcys, the creation ofthe new plots for the defendants had gone 25

beyond the actual boundaries of the original plot 225. The end result was that plot 428 was reduced to O.41 decimals from its original size of 5O decimals.

It is also admitted by the defendant as deduced from the correspondences with BLB that the data submitted for purposes of creating subdivisions was queried, but still the subdivisions went ahead, and in total disregard of those unresoived

tssues.

The defendant's claim was that when he acquired land, the boundaries were opened by the surveyors from BLB; the access road for all plots in the area was as per district plan and no changes were made by him.

- The defendant did not however present any survey report prior to the subdivision and registration in 2008. He did not explain to court why no boundary opening was conducted to determine the access roads at the time of creating the new plots; or why the subsequent subdivision did not take into account the earlier existing boundaries of plot II3 out of which several plots were created, 10 - including plot 42a. 15

As pointed out by counsel in submission, plots 422- 42a were created before the defendant's new plots, obviously implying that plot 428 was in existence even beforeplot9TT. There is nothing to suggest that the creation plot 428had been a subject of controversy.

That all goes to show that the defendant did not only fail to survey the suit land at the time of subdivision but also failed to consult the LCs and his neighbors to confirm the access road and the boundaries of the land he claimed before the subdivisions were made. 20

DExh 4 also says a 1ot about what went wrong in the defendant's transactions. As per that letter from BLB dated 176 February, 2OO9, by 2009 there was a subdivision plan, and suggestions for the access road. 25

But by then as established, the defendant's plots had already been curved out and titles created, a year earlier lrom plot 226. There is nothing however to

8 Uil"'6 prove that the suggestion for the access road was approved by March, 20 10 when the plaintiff acquired the neighbourtng plot 428.

Since the approvals were given in 2015 after the plaintiff had taken possession this supports the plaintiff's claim that he was never consulted when such

5 decisions were made.

Not only }:,ad plot 971by that time already registered into the defendant's name, (even before the consent was obtained from BLB,) but also before the new access road had been approved by the BLB board.

The letter by BLB which was presented as the approval, was therefore not the consent that was required for the purpose of subdividing the defendant's plot. It came too little too 1ate, more or less as a validation of an irregular act of subdividing and creating titles before appropriate consultations were made with the Lcs and neighbours, and the new owners of plot 422-42a who included the plaintiff himself. It was validation of the division of plot 226, that never took into consideration the already existing intcrests. 10 15

BLB which for some rcason was not made party to the suit, belatedly approved the subdivision of plot 226 into plots 9O7, 9O9, 97O dnd 971. Out of those acts, the overlapping on plot 428 became unavoidable.

These allegations of overlapping wcre indeed confirmed through several survey reports. An earlier boundary opening exercise had been done for plot 428 on 21"t December, 2O),O, upon instructions of the plaintiff. 20

The second survey was conducted on 23'd December, 2014, as per report, PExh 6. Among the observations made by the M/ s MATT Suruegors was the encroachment by the developments in the neighboring plots, measuring 0.0O6 hectares or 0.0 1 acres on the plaintiff's plot.

Subsequently, a joint survey report was presented by M/s Prime Suruegs and Digital Mapping Consultants Ltd as per thcir report dated 6th November, 2019, marked PExh 7/ DExh 77,1or plots 428 and 977. ReJ, DDxh 77.

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The survey revealed that there was an overlap between the two plots of about 0.01 acres which pushed the access road to plot 977 into plot 428 taking an area of about O,05 acres which affected the size of plot 428 on the ground.

The findings were also that the access road leads to plots 97O and.977 and underneath was the national water pipe. The visible area of plot 428 on the ground was only 0.41 acres.

The report confirmed the reduction of usable land for plot 428 by 9 decimals. A yet other joint survey report by the same firm dated 6ft February, 2027 was commissioned by court; and tendered in as CExh f .

- It was confirmation that the subdivision did not fo11ow original boundaries; it went beyond the original boundaries of plot 226; that all plots arising from the subdivisions of plot 226 encroac!:.ed on plot 428 and finaliy, that plots 9O7 qnd plot 9II encroached on the access road. This was also confirmed by court during the locus visit. 10 - Court also duly noted that the suit land is iocated on the top of the hill. The area where the encroachment was, is the usable part of the land, the more appropriate and accessible area for building purposes. 15

Court found that the encroachment as confirmed by CutT' report therefore hindered the development of plot 428 by the plaintiff. Furthermore, that the subdivided plots for the defendant were already developed and in use by the new owners / occupants whose identities were not revealed to court.

The question to be asked therefore was why, despite the fact that the defendant and BLB had discovered the discrcpancies in data; and after a resurvey of plot 226 was recommended by the chief surveyor, the defendant had insisted on subdividing plot 226, by which act the usable size of plot 428 lnad been

reduced. 25

Could the defendant's actions therefore be construed as acts in good faith? I think not.

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If he had conducted a proper survey and consultations and waited to secure prior consent from BLB before the subdivisions were made, it wouid have become obvious to him that the existing neighboring plots already had its established network. He would have established the actual boundaries of plot 226.

5 In the spirit of sectton 56 of the Land Act, Cap,227 rssuing a certificate of title or registration does not cure any defect in a land transaction nor confer upon any certificate or other document any validity which it would otherwise not have.

Furthermore, as stipulated under sectio n 35 (8) of the same Act, a change effected on the land whether by sale, grant and succession or otherwise does not

10 in any way affect the existing lawful interests which the owner is obliged to respect.

There is also a plethora of authorities to the effect that thorough inquiries prior to any transaction must be conducted, failure of which a party would be bound by equities relating to the land that they would be deemed to have had clear or

## constructive notice of. /see Str John Bageire us Aust Appeal No. 7 of 7996 (Court of Appeal) and Ououa Pali Vs Wakunsa Charles, Civil Appeal No. 13 of 2014 (High Court[ 15

The principies of a bonafide purchaser as defined in Black's Lau Dictionary Bth Edition at page 127 eq.ually applies to such person who disregards or fails to take care or notice of and/or fails to act in good faith, in the face of existing interests which the party exercising reasonable diligence would have easily discovered. A party's ignorance or negligence formed particulars of fraud. This equally applied to the defendant's actions.

# Encrorrchment of plot 428 ba the access Road:

On the issue of grading the access road to the defendant's plots, the defendant did not deny the fact that it was through his actions that a portion of the access to his plot entered plot 428. He apportioned part of the blame to the errors by BLB, but never made him part to the suit. 25

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As already indicated, DExh 7 7 the joint report by M/ s prime suruegs and. digital mapping consultants Ltd, dated 6fr Novembe r 2OI9 , addressed to K,IA Adaocates and c. Mukiibi sentannu & co. Ad.uocates reinforced the argument of an overlap between plots 428 and. plot 9rr which pushed the access road

5 lo plot 977 into plot 428, taking up an area ofabout 0.05 acres which reduced the size of plot 428 on the ground.

Going by that report, the access road leads to plots 9lO and 971 arrd, underneath was a national water pipe; and that the usable area for ptot 42g therefore remained only 0.41 acres. The offending actions were hugely attributed to the defendant; and for which he is therefore held liable.

In response to issues No. 7 qnd.2 therefore, the defendant committed acts of trespass when he encroached on the plaintiff's land comprised in plot 42g.

### Issue ]Vo. 3: Remed.ies:

#### General damaqes:

Among other prayers sought in this suit were a permanent injunction against the defendant and those deriving under him; general damages, computed as Ugx 3OO,OOO,OOO/= which as submitted by counsel were compensatory. 15

counsel further prayed for interest of look per annum. The argument was that he had been kept from the land by the defendant for his own exclusive use.

Its trite law that, that damages are the direct and probable consequence of the act complained of, also noted in the case of Kampala District Land. Board and. George Mito.la Vs Venansio Barnwegana CA No. 2 of 2OOZ, 20

Such may be loss of profit, physical inconvenience, mentar distress, pain and suffering, (see also Assit (u) vs rto,lian Asphault & Haulage & Anor HCCS

No. 7297 oJ 1999 atpage S). 25

It is also a settled position of the law that the award of general damages is in the discretion of court and is always as the law will presume to be the natural consequence of the defendant's act or omission.

The object of an award of damages is to give the plaintiff compensation for the damage, loss or injury he or she has suffered. (See: Fredrick Nsubuga Vs

# Attorney General S. C. C. A. No. 8 of 1999).

Therefore, in the circumstances of the quantum of damages courts are mainly guided by the value of the subject matter, the economic inconvenience that the party was put through at the instance of the opposite party and the nature and event of the breach.

A plaintiff who suffers damage due to the wrongful act of the defendant must be put in the position he or she would have been in had he or she not suffered the wrong. He or she ought to lead evidence or give an indication what damages should be awarded on inquiry as the quantum. (Ongom Vs. AG (1979) HCB

# 267, cited by court in Kamugira Vs National Housing & Construction Co. 15 CS. No. 127 of 2009)

This court takes into consideration the fact that the plaintiff purchased 50 decimals of land in 2010 and through the acts directly attributed to the defendant, he ended up with only 0.41 decimals which was hardly usable. The reduction of the 9 decimals resulted in the reduction of the value of the plot itself

and its resale value.

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It is also true as submitted that this matter has been in court for a period of 5 years. Nevertheless, the amount of *Ugx 300,000,000/* sought against the defendant seemed to be rather on the higher side.

The plaintiff did not provide any backing or justification for the amount sought 25 as general damages, leaving court with no basis upon which to regard the said amount as fair.

Clarks up

This court in applying its discretion would therefore award a sum ol Ugx SO,OOO,OOO/= as general damages, calculated at Ugx 1,5OO,OOO/=, as rent the plaintiff would have received per month, if he had developed and rented out the 1and, thus making a total of llgx 78,OOO,OOO/= per year- with a total amount of Ugx gO,OOO,OOO/=, for the 5 years this matter has been in court'

Accordingly, the plaintiffs action succeeds and the foilowing declarations / orders are made :

- T,TheProcessofsubdivisionofplot226andtheregistrdtionofplot 977 into the names of the d,efendant uere fraudulent, as these uere efJected uithout prlor approoal of the lessor. - 2. The subdivislon did not follou the origi^al boundarles or take Tnto consideration the exlsting interests of plot 773 (includfng the access roads),outoftahlchseoeralplotslncludlngplot42Swerecreated. - 15

- 3. Accordinglg, the unauthorized subd tisions of plot 226 and the creatlon oJ dn access road on ptot 428, attributed to the defendant, uere intended to deJeat tlrc interests of the plainttff and resulted into an encroo;chrnent on the plainttff s land. - 20

- 4. The subdiuisions and titles created oaer plot 226 are accordinglg cancelled. Plots 226 to teaert to their orlgindl Jorm's' - 5, A resunteg of the entire area is to be made utith the purpose oJ creatlng e;rother access road to the defendant's plot 226, enatrlng that ptot 428 remains at 50 declmals. - 6. General dannages of Ugx SO,OOO,OOO/= shall be paid bg the defendant to the plaintiff.

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- 7. Interest of 12% is payable p.a for the amount awarded as general damages, from the date of delivery of this judgment, until payment is made in full. - 8. Costs awarded to the plaintiff.

Alexandra Nkonge Rugadya

Judge

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15th May, 2024 10

Delivered by encil Jeliver Outbook Jefferey