Kagwa semikwano kibirige v Nabwire (Civil Suit 376 of 2016) [2024] UGHCLD 282 (13 November 2024)

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA

## (LAND DIVISION)

## CIVIL SUIT NO.376 OF 2016

ANDREW KAGGWA SEMIKWANO KIBIRIGE...................................

(Suing through Professor Justinian Tamusuza, done of power of attorney)

#### **VERSUS**

$10$

$\mathsf{S}$

<table>

ELIZABETH NABWIRE DEFENDANT

# Before: Lady Justice Alexandra Nkonge Rugadya

#### **JUDGMENT:**

The plaintiff brought this suit, through his lawful Attorney Prof. Justinian Tamusuza against the defendant for trespass, eviction, general damages and a permanent injunction against the defendant restraining him or her agents or 15 servants from further trespassing on the suit land **Busiro Block 427 Plot 126**

at Mawugulu Wakiso and costs of this suit.

## **Facts of the case:**

The plaintiff and Penelope Nassozi are the registered owners of land described as Busiro Block 427 Plot 126 measuring 0.117 hectares, land at Mawugulu, 20 Wakiso District.

They bought the land from Bakka Musujja on 22<sup>nd</sup> April, 2008 and the title to the land was transferred into their names on 20<sup>th</sup> September, 2008. They also bought an adjacent piece of land measuring 0.40 acres situate on **Busiro Block** 427 Plot 28 from Bakka Musujja, (PExh 3).

$\mathbf{1}$

What's

Musujja had earlier bought the same piece of land from Lawrence Kamya on 29<sup>th</sup> March, 2007. The plaintiff's claim therefore was that the defendant had entered his land illegally and thus a trespasser on his land, who ought to be evicted.

He accordingly sought among others, a declaration that the plaintiff and Penelope Nasozi are the lawful owners of the suit land; that the defendant has no valid claim to the suit land; an eviction order; a permanent injunction $\mathsf{S}$ restraining the defendant and/or her agents or servants from trespassing the suit land; general damages

The defendant, Nabwire Elizabeth, on her part did not file a counterclaim. She however claimed to have bought equitable interest/kibanja, measuring $70ft \times 70$ ft. on the plaintiff's land (Busiro Block 427 Plot 126) in 2015, from a one Bonny

Kayondo.

$\cdot$ $\mathcal{L}^{\mathcal{L}}$

## **Representation:**

At the joint scheduling conference the agreed facts and issues were:

#### Agreed facts: 15

- That the plaintiff is the registered owner of land described as **Busiro 1.** Block 427 Plot 126 (the suit land). - 2. The defendant bought the suit kibanja on the plaintiff's land without the plaintiff's consent. - 3. The defendant has constructed a house on the suit land. 20

### **Agreed Issues:**

- 1. Whether the defendant holds any kibanja interest on the suit land? - 2. Whether the defendant is a trespasser on the land? - 3. Whether any of the parties is entitled to the prayers in their pleadings?

$25$

$Mathot S$ 2

Issue No. 1: Whether the defendant holds any kibanja interest on the suit land.

And:

# Issue No. 2: Whether the defendant is a trespasser on the land?

#### Analysis of the law: $\mathsf{S}$

In the case of Justine Lutaaya Vs. Sterling Civil Eng Co. Lt SCCA No. 11 of 2002, the Supreme Court held that trespass occurs when a person makes an authorized person's lawful possession.

The same principle was espoused in the case of **Sheik Mohammed Lubowa vs** Kitara Enterprise Ltd, HCCA No. 4 of 1987 that trespass to land is constituted where entry onto the land by the defendant was without the consent of the

owner.

An action for the tort of trespass to land is therefore for enforcement of possessory rights rather than proprietary rights. (Odeyk Alex & Anor vs Gena

#### 4 others: Civil Appeal No. 9 of 2017). 15

In order to prove that trespass was committed, it was incumbent on the affected party to show that the disputed land belonged to him; that the defendant had entered upon that land; and that the entry was unlawful in that it was made without his permission; or that the defendant had no claim or right or interest in the land. (Sheik Muhammed Lubowa versus Kitara Enterprises Ltd C. A

#### No.4 of 1987).

In the instant case, the plaintiff claimed to have bought the land free from any encumberances and had authorized caretakers to cultivate the land. The caretakers were however forcefully evicted by the defendant.

He therefore disputed the defendant's various claims that she had bought the land bonafide from a one Bonny Kayondo; and also refuted the claim that the 25 defendant had equitable interests in the suit land.

Valor8<sup>3</sup>

His further claim was that the defendant having forcefully entered onto the plaintiff's land without his consent and constructed a house thereon, committed acts of trespass from 2016 to date.

The plaintiff relied on the evidence of three witnesses. Pw1 as the plaintiff's donnee of the powers of attorney, *Pw2* Nalongo Dalausi, aged 57 years and *Pw3* Namuganga Rose, aged 67 years.

Prof. Tamusuza, the plaintiff's lawful attorney, testifying as **Pw1** informed court that the plaintiff had bought the land in issue: Busiro Block 247 Plot 126 measuring 0.117 hectares (the suit land) from Bakka Musujja.

That the plaintiff got registered onto the certificate of title on 20<sup>th</sup> September, 2008, **(PExh 1)** and that at the time he purchased the land it was free from any 10 encumbrances.

**PExh 2** was tendered in evidence as a sale agreement dated $22^{nd}$ April, 2008 by the plaintiff and Penelope Jayne Nasozi Kibirige. The two vendors who were represented in the transaction by their agent, Peter Kusiima jointly bought the suit land from Bakka Musujja and the purchase price as agreed, had been paid

in full.

$\mathsf{S}$

It was a specific term in that agreement that the purchasers and their agents were free to take immediate possession of the land. (Ref: clauses 4 and 5 of

PExh 2). 20

**PExh** 1 is a certificate of title for the land measuring 0.117 hectares which was handed over to the plaintiff at the execution of the contract. The entries on that title indicate the names of Laurensio Kamya as the initial owner of the land, having acquired registered interest on the suit land on 13<sup>th</sup> July, 2007.

Bakka Musujja the plaintiff's immediate predecessor in title got registered on the same day and the said land was transferred into the names of plaintiff and $25$ Penelope Jayne Nasozi Kibirige, as joint owners on 26<sup>th</sup> September, 2008.

Whole 4

As per sale agreement the said land was originally divided into *Parts A and B*. (PExh 4). Block 427, plot 70 measuring 0.312 acres in which Lawrensio Kamya was the original owner.

Part B was (originally) **Block 427, plot 28** measuring 0.332 acres in which Kamya had registerable interest and in respect of which no title had been obtained at the time. The two parts were subject of an agreement between Kamya $\mathsf{S}$ as vendor and Bakka Musujja (PExh 4).

The plaintiff and Bakka entered into two agreements **PExh 2** initially on **plot** 126 on 22<sup>nd</sup> April, 2008 and later on 9<sup>th</sup> July, 2008 for **Block 427, plot 28** (PExh 3) in which Kamya as original seller had registerable interest which he

10 passed on to Bakka Musujja.

Further evidence was adduced by $Pw1$ that following the plaintiff's purchase of the land, he had fenced it off with barbed wire and in addition, appointed two caretakers, to wit, Nalongo Darausi (Pw2) and Ms. Rose Namuganga (Pw3) whom he allowed to grow seasonal crops like beans, cassava on the suit land.

In confirmation of that fact, **Pw3**, Rose Namuganga a neighbor to the suit land informed court that at the time of purchase of the suit land it was free from any encumbrances actual, constructive, or otherwise.

This is further corroborated by **PExh 10**, a letter by the then plaintiff's lawyer (late Peter Kusiima) dated 11<sup>th</sup> September, 2015 confirming the ownership and

- fencing as well as the appointment of the two as caretakers of the plaintiff's land. The fact that $Pw2$ was caretaking that part of the suit land now occupied by the defendant, is further corroborated by **PExh 11** (a) & (b), a letter dated 11<sup>th</sup> April, 2016 by the LC11 Chairman Nalugala, addressed to the plaintiff. - Going by the contents of that letter the defendant had reported to the LCII Nalongo Dalausi, (Pw2's) refusal to vacate the land. In an effort to resolve the 25 dispute, the plaintiff was summoned on 16<sup>th</sup> April, 2016.

Vulov<sup>5</sup>

Paragraph 1 of the said exhibit **PExh 11 (a) & (b)** states in part:

"we have been approached by Nabwire Elizabeth who informed us that Nalongo Daraus has refused to vacate her Kibanja which is located on your land. When we asked her to tell us why, she said you are the one who authorized her to care

take the land but also to utilize it..." $\mathsf{S}$

The dispute was never resolved at that level by the said LC.

## Resolution by court:

I have carefully read the pleadings, the evidence, and submissions by both counsel which I will not reproduce in this judgment.

Article 26 (2) of Constitution of the Republic of Uganda guarantees the existence of the right for every person to own property, either individually or in 10 association with others.

In the case of Tayebwa Geoffrey and Anor vs Kagimi HCCS No. 11 of 2012 quoting Ojwang vs Wilson Bagonza CACA No. 25 of 2002, it was held that for a party to claim interest in the property/land that was allegedly sold to the

plaintiff he/she must show first that he/she acquired interest from someone who 15 previously had interest thereon.

The defendant's interest in this case appears to have been pegged onto the legal protection accorded to a lawful occupant or bonafide occupant on registered

land. 20

Dw3 claimed that Kamya had both equitable and legal interest in the said land and that he sold off to Kayondo Bonny in 1999 his equitable interest. That he had been given the option of purchasing the legal interest; and that the said agreement was duly endorsed with an LC stamp.

That after purchasing the kibanja Kayondo took possession and began growing seasonal crops until 2015 when the defendant begun construction of her 25 residential house.

Wileto 6

That subsequently on 27<sup>th</sup> May, 2015 Kayondo had brought the defendant to the LC 1 office to execute the agreement, which he endorsed as one of the witnesses.

The defendant relied on a sale agreement by which Kayondo her predecessor had acquired the land from Kamya, the original owner of the land. The agreement between Kamya and Kayondo in specific terms states in part:

I have sold the equitable interests at Ugx $14,000,000/$ =. He has fully paid me in cash and he is free to buy the legal interest at his own desired time. After buying the legal interests he will be given a certificate of title. He is free to use his plot of land as he wishes.

- It is clear from the evidence on record that Kayondo never bought the legal 10 interest. It is also not in dispute that Kamya the original owner of the suit land and the person who purported to have sold the equitable interest in 1999 and the legal interest in 2007 to two different persons had already ceased to be the owner of the land long before 2015, the year the defendant had purchased the - land. 15

$\mathsf{S}$

By then, the ownership had already exchanged hands and the plaintiff had already obtained legal interest and possession which status the defendant chose to ignore.

What Kayondo sold as a kibanja interest in 2015 therefore had already ceased to exist when Bakka the plaintiff's predecessor in title became the next registered 20 owner. Kayondo as an equitable owner never challenged the transfer of the land to Bakka Musujja or thereafter to the plaintiff.

A certificate of title is a public document and therefore Kayondo had constructive knowledge that the land in which he formerly had interest had already changed

status, and was now registered land. His interest in any case has been 25 extinguished through effluxion of time.

Jahar &

Kayondo disposed of a nonexistent interest to the defendant, and did so without consulting Kamya who was still alive if indeed he genuinely had any belief that Kamya was the valid owner at the time.

- A lawful occupant is recognized under the said Act to include a person who entered the land with a consent of the registered owner. A bona fide occupant includes a person who before the coming into force of the Constitution had occupied and utilized or developed any land unchallenged by the registered owner or agent of the registered owner for 12 years or more; or has been settled on land by the Government or its agent, which may include a local authority. - By virtue of **section 36 (9) of the Land Act** a registered owner on which the interest lies is under an obligation to respect the valid existing interests if any, 10 on the land.

Similarly, section 64 (2) of the RTA, Cap. 240, states clearly that land included in any title is subject to among others, to any subsisting rights under any adverse

possession of the land. 15

$\overline{a}$ $\cdot$

$\mathsf{S}$

But the above provisions notwithstanding, an occupant claiming to have protectable interest which he/she intends to pass onto the buyer has that right by virtue of **section 35(1) of the Land Act**, to assign, sublet or subdivide the tenancy, but can only do so with the consent of the land owner. That implies therefore that any such transaction executed without consent of the registered

20 owner would not be considered as valid. (Section 35(9)).

Failure to secure consent renders the sale a nullity and extinguishes the tenant by occupancy rights and the land reverts to the registered owner. If indeed Kayondo had a kibanja interest in the land, he never challenged any of the successive transfers made on that land.

He or the administrators of his estate would have been parties or key witnesses to the defence, but were not.

Jakov O

# Whether the defendant was a bona fide purchaser:

A person who purchases an estate which he/she knows to be in occupation of another person other than the vendor is not a bona fide purchaser for value without notice of the fraud if he/she fails to make inquiries before such purchase

is made. $\mathsf{S}$

A bona fide purchaser for valuable consideration of land derives protection under section 181 of the RTA. The term is defined in Black's Law Dictionary 8<sup>th</sup> Edition at page 1271 to mean:

"One who buys something for value without notice of another's claim to the property and without actual or constructive notice of any defects in or infirmities, claims, or equities against the seller's title; one who has good faith paid valuable consideration without notice of prior adverse claims."

Halsbury and Martin Modern Equity (Sweet and Maxwell) Ltd 1977, $\operatorname{\textit{at}}$ page **27** provides:

"Prior equitable interest in land can only be defeated by a bonafide purchaser for value without prior notice. Then the equities are equal $\frac{1}{2}$ and his estate prevails. If he took with notice, the position is otherwise, as the equities are not equal. If he does acquire a legal estate, then the first in time that is the prior equitable interest prevails as equitable interests rank in the order of creation."

A heavy duty has been imposed by courts to any prospective purchaser to conduct thorough investigations before the purchase. (Vivo Energy Uganda Ltd vs Lydia Kisitu CACA NO. 193 of 2013).

As such, failure to make reasonable inquiries or ignorance or negligence was held to form particulars of the offence of fraud in **Uganda Posts and** 25 Telecommunications vs Abraham Kitumba SCCA No. 36 of 1995).

Jular Og Court also rejected the argument that a certificate of title was enough to establish ownership where there was circumstantial evidence that should have put the defendant on notice requiring him to go beyond the certificate of title.

In the present case, no evidence was presented so as to put the plaintiff on any such notice as the land had no encumberances.

The plaintiff's contention was that the defendant had no legally recognizable kibanja interest on the plaintiff's suit land, having received prior warning by **Pw2** and Pw3 that the supposed seller, Bonny Kayondo, was a conman who had no interest to pass to her. She never took those warnings seriously.

**Pw1** also warned the defendant not to construct a house thereon until this court 10 case was disposed of, but she did not heed to that advice. The defendant however while denying any such warnings did not deny the fact she encountered resistance from the plaintiff's agents before taking over the kibanja.

She did not deny having evicted **Pw2**, or having entered the plaintiff's suit land without his consent and amidst all those protests she had put up a permanent 15 structure.

For her to satisfy this court that she was indeed a bonafide purchaser, she also needed to do more, and show that she had carried out physical inspection of the area; made appropriate inquiries with the neighbours and LCs of the area; and investigations on the title before purchasing the kibanja.

#### a) Physical inspection:

In the case of **Uganda Posts & Telecommunication vs Abraham Katumba** (1997) IV KALR 103, it was held that as the law now stands a person who purchases an estate which he knows to be in use of another other than the vendors without carrying out the due inquiries from the person in occupation and use commits fraud.

$\mathsf{S}$

Juley

The defendant in this case claimed to have carried out physical inspection guided by the land broker. She claimed that at the time of inspection she found no fence on the ground. However that there were food crops which she learnt later from the LCs belonged to the previous owner of the kibanja, Bonny Kayondo.

Both **Dw2 and Dw3** testified that Kayondo Bonny hired workers like Ssalongo 5 Dalausi, the husband to **Pw2**, to cultivate his food and they kept seeing Kayondo harvesting the food crops from the suit land until 2015 when he sold it to the defendant.

Court was informed through the evidence of **Pw2** that Ssalongo Dalausi who was Kayondo's caretaker/worker had separated from Nalongo Dalausi who was the 10 care taker of the plaintiff's land.

However, no explanation was given to court as to why if Kayondo was in possession at the time of eviction utilizing the land, Dalausi Salongo his caretaker was not on the ground; or why Kayondo all this time since 2008, never

evicted the plaintiff's caretakers. 15

Instead the defendant found the plaintiff's caretaker, Nalongo Dalausi utilizing the land and whose refusal to vacate it had been reported to the LC, (as per letter dated 11<sup>th</sup> April, 2016).

The defendant did not explain why and how the plaintiff's caretaker was evicted from the land which Kayondo claimed as his.

# b). Inquiries and consultations from the LCs and neighbours:

The defendant's claim was that she was led by the land broker to the LC 1 chairperson called Kasoma and secretary called Kamya Mutale Godfrey (Dw3), for further investigation about the ownership.

They assured her that the land belonged to Kayondo and that there were no 25 known interests on the suit kibanja. She was given a copy of the sale agreement

Jabag

between Kamya and Kayondo and later the two signed the agreement with Kayondo at the LC offices.

In paragraph 9 of her witness statement the defendant claimed that she had consulted her neighbor Salongo Dalausi who was cultivating on the land. He informed her that the kibanja belonged to Kayondo and that Kamya Laurencio had registrable interests, information which later turned out to be incorrect since by that time the said interest had already been transferred.

A perusal of the agreement **PExh 4** dated 29<sup>th</sup> March, 2007 between Kamya and Bakka and the subsequent one between the plaintiff and Bakka (Ref. PExh 3) both indicate clearly that the land was bought by the plaintiff free from any encumberances.

The agreements relied on by the defendant DExh 1 (a)/(b) dated 27<sup>th</sup> May, 2015; and DExh 2(a)/(b) dated 17<sup>th</sup> October, 1999 on the other hand however did not have the same or similar assurances. The defendant relied on conflicting information about the ownership of this land which she made no attempt to

verify.

The plaintiff on his part through the evidence of $Pw1$ admitted that he only interacted with the local leadership in 2015 and 2016 when the defendant allegedly encroached on the suit land when she constructed her house. He introduced himself to the LC, as the owner but not as a prospective buyer.

Apparently this happened after the dispute arose.

It was the defendant's submission based on that, that the plaintiff did not purchase the suit land in good faith. She however did admit that after getting to learn about the plaintiff's legal interest she had asked Kayondo, the person who had sold her the land about the authenticity of the said claims.

It was **Pw1's** evidence in chief that around July-August, 2016 with a lot impunity and impudence, the defendant proceeded to bring materials and

Jahor &

started building a permanent residential structure, even after facing Kayondo about the plaintiff's unresolved interest in the land.

The defendant acts of eviction of the caretakers before the dispute was resolved, bringing building materials on the land and putting up a permanent residence were not done in good faith. She could not therefore meet the criteria of a bonafide purchaser.

In this court's view, the refusal by the caretakers to vacate the land ought to been a red flag. It should have put her on notice of the existing interests on the land acquired even before she purchased the land. She was warned about the plaintiff's interests and protests even before she put up the structure, which warnings she however chose to ignore.

Secondly this suit was instituted on 24th June, 2016. It was therefore inconceivable that the defendant constructed the house in one month or less. The letter of LC11 was calling for a meeting on 16/04/16 to handle matters of the caretaker of the plaintiff who had refused to vacate the land. Then the suit

was filed in June, 2016.

$\mathsf{S}$

In effect, therefore from the contents of **PExh 11 (a)** written in April, 2016 which clearly states that the LC11 officials had received a complaint by the defendant that $Pw2$ had refused to vacate the kibanja, this was a clear indication that by April, 2016 the defendant had not begun construction of the house as she

20 claims.

As submitted, the defendant could not explain how she had constructed her house in 2015 and complete it in the same year (as she claims) yet at the time in April 2016 she filed a complaint against the **Pw2's** refusal to vacate the same land where she eventually constructed her house.

The defendant thus failed to discharge the burden of proving that she had conducted due diligence before purchase of her kibanja only through consulting the local leaders.

Jakaeg

Given the protests by the plaintiff, the defendant should have inquired first about the authenticity of the plaintiff's claims by asking for a copy of the title or conduct a search in the Land office to investigate the title. She never did so.

$\mathsf{S}$

The defendant' claim therefore that she began and completed the construction of the house in 2015 and never knew about the plaintiff's legal interest in the suit land could not have been further from the truth. It is rather more likely than not that she poured materials on the disputed land and put up the house during the subsistence of this suit.

### c) Inquiries on the title:

By virtue of the provisions of **section 59 of the RTA**, possession of a certificate $10$ of title by a registered person is conclusive evidence of ownership of the land described therein.

Section 165 of the RTA protects bona fide purchasers for valuable consideration. The section also protects a registered proprietor of land against any action of ejectment, except on grounds of fraud.

This explains the importance of prior investigations by a buyer before the transaction is made. In this case, court was invited to note that as per the certificate of title, Lawrencio Kamya became the registered proprietor on 13th September 2007. The plaintiff became the registered proprietor of the suit land

in 2008. 20

That the suit land was not therefore registered until 2007 and that no notice was given to the local leadership during the process of the creation of the title and purchase by the plaintiff. This explained why the local leadership and Ssalongo Dalausi had no information about the plaintiff's legal interests.

Regardless. The fact that the plaintiff never consulted the Lcs as appears to have 25 been the case did not by itself hand over to the defendant automatic ownership of the kibanja which was already on registered land.

De lo of

Evidence on record shows that the defendant through her former counsel was notified about Pw2 and Pw3's presence on that land as caretakers of the plaintiff's legal interest. (Ref: letter dated $11$ <sup>th</sup> September, 2015 from the plaintiff's counsel of M/s Kusiima & Co. Advocates (PExh 10).

There was no evidence however to prove that after finding out that the plaintiff $\mathsf{S}$ claimed registered ownership the defendant took any trouble to find the authenticity of his claims or find out if Kamya was still the registered owner from whom prior consent ought to have been obtained before acquiring the land.

In conclusion therefore, the defendant had no legally recognizable kibanja as it had been taken up in the title through Bakka Musujja, the plaintiff's predecessor 10 in title and later transferred to the plaintiff. Without the plaintiff's participation or involvement, the transaction was therefore null and void.

If Bakka Musujja as the first transferee had acquired ownership irregularly then the defendant only needed to present proof that the illegality or fraud was known or committed by the plaintiff directly or indirectly.

All in all, as submitted by counsel, the legal methods of acquiring or securing and transferring or assigning occupancy (kibanja) rights in registered land as laid down in the relevant sections of the Land Act, Cap 236 were not duly complied with by the defendant.

The defendant made an illegal entry of the plaintiff's land and was therefore a 20 trespasser on the land comprised in Busiro Block 427 Plot 126, land at Mawugulu, Wakiso District.

In response to issues No. and 2 therefore, and within the spirit of Sheik Muhammed Lubowa versus Kitara Enterprises Ltd (supra), the defendant proved that she purchased the kibanja in 2015. She however failed to prove that 25 Kayondo who sold it to her still had interest in the *kibanja* at the time she bought it.

Julie

She entered upon that land despite protests from the plaintiff. Having thus failed to prove that the she acquired a valid claim, right or interest in the land, she was not a bona fide purchaser.

Accordingly, her entry had been unlawful as it was made without the permission of the plaintiff as the registered owner. She was therefore a trespasser on the plaintiff's land

## Issue 3: Whether any of the parties is entitled to the prayers in their pleadings:

- a) A declaration that the plaintiff and Penelope Nasozi are the lawful owners of the suit land. - b) A declaration that the defendants have no valid claim to the suit land. - c) An eviction order. - d) A permanent injunction, restraining the defendants and/or her agents or servants from trespassing on the suit land. - 15

$\mathsf{S}$

- e) General damages - f) Cost of the suit. - g) Interest on (e) and (f) above from the date of judgment till payment in full.

#### General damages: 20

Its trite law that damages are direct and probable consequence of the act complained of, also noted in the case of Kampala District Land Board and George Mitala Vs Venansio Bamweyana CA No. 2 of 2007. Such may be loss of profit, physical inconvenience, mental distress, pain and suffering, (See also Assit (U) vs. Italian Asphault & Haulage & Anor HCCS No. 1291 of 1999 at

page 5).

Jab de

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 $\mathsf{S}$

## 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. 10

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).

The plaintiff adduced evidence to show that he made plans to develop the suit land; and that he incurred costs and expenses to develop a structural and architectural plan in a bid to develop the land (PExh7, PExh 8 and PExh 9).

The amount payable was left to the discretion of court. 20

In awarding a sum of *Ugx* 70,000,000/= damages, as I now hereby do, I have taken into account the delay occasioned to the plaintiff in executing his now frustrated plans to put up his own house, the costs and expenses involved in preparing and submitting building plans as well as the inconveniences which could have been avoided but for the defendant's reckless actions which resulted

in the filing of this suit.

In the premises the following orders/declarations are granted:

(laborer

- 1) A declaration issues that the plaintiff and Penelope Nasozi are the lawful owners of the suit land and that the defendant has no valid claim to the suit land. - 2) A permanent injunction, restraining the defendants and/or her agents or servants from trespassing on the suit land. - 3) The current value of the suit land shall be assessed by the Chief Government Valuer within a period of thirty days; - 4) The said amount as determined by the Chief Government Valuer shall be paid by the defendant within a period of three months after $\,$ the submission of the assessment report; - 5) Upon failure to pay the said amount within a period of ninety days, an eviction shall automatically be conducted against the defendant $\mathbf{A}$ by which all the structures belonging to the defendant shall be demolished: - 6) General damages of Ugx 70,000,000/= are awarded to the plaintiff, with interest at 15% per annum, payable from date of delivery of this judgment, until payment is made in full.

Costs of this suit awarded to the plaintiff.

$\mathsf{S}$

Alexandra Nkonge Rugadya

Judge

13<sup>th</sup> November, 2024.

Obetierd via engair<br>allege<br>14/11/2024