Masembe v Ashaba (Civil Suit 74 of 2015) [2024] UGHCLD 286 (29 November 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION) CIVIL SUIT N0. 074 OF 2015**

**MASEMBE JEREMIAH :::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF VERSUS**

**ASHABA BARNABAS :::::::::::::::::::::::::::::::::::::::::: DEFENDANT**

## **BEFORE; HON. LADY JUSTICE NALUZZE AISHA BATALA**

## **JUDGEMENT**

#### *Introduction;*

- 1. The Plaintiff brought this suit against the defendant seeking the following remedies; - i) A declaration that the plaintiff is the lawful owner of the land comprised in Block 219 Plot 1737 measuring 0.1330 hectares' land at Najjera. - ii) An order that the defendant is a trespasser on the suit land. - iii) An order of vacant possession of the suit land.

- iv) An order restraining the defendant or his agents from further trespass on the suit land. - v) General damages for trespass. - *vi)* Costs of the suit.

#### *Background;*

- 2. The plaintiff's case is that he purchased the suit land on the 5th of January 2018 from a one Sowali Munyanyiko. After the said purchase, the plaintiff was then registered on the certificate of title to the suit land on the 26th of August 2019 and acquired vacant possession of the suit land. - 3. To the plaintiff's dismay the defendant without the plaintiff's consent and knowledge started growing sugar canes and erecting temporary structures on the suit land. - 4. The defendant filed a written statement of defence where he states that he purchased 25 decimals from one Magimbi Gerald off land comprised in Block 219 formerly described as Plot 678 pursuant to a sale agreement dated 4th July 2005 and further purchased another 20 decimals from one Patrick Musoke off land comprised

in Block 219 formerly described as Plot 678 pursuant to a sale agreement dated 3rd August 2005.

- 5. That the plaintiff made subdivisions from the suit land whereupon he created Plot 1737 and wrongfully transferred the same into his names knowing that part of the land belonged to the defendant. - 6. Upon executing the two sales agreements, the defendant did not transfer the land into his names but he took immediate possession of the purchased land and put developments thereon which included but not limited to his residential house and gardens. By the time the plaintiff allegedly purchased the said land he was well aware of the defendant's occupation on the land. - 7. The defendant proceeded to file a counter claim and prayed for this court to cancel the plaintiff's certificate of title, general damages, punitive damages and costs of the suit.

#### **Locus proceedings;**

- 8. Court conducted a locus visit of the suit land on the 6th of September 2024 and made the following observations; - i) That the boundaries of the suit land included the perimeter wall and the boundary stones.

- ii) The plaintiff is in possession of the suit land. - iii) The defendant does not own or have anything on the suit land. - iv) The land had a few sugar cane plantations.

#### *Representation;*

9. At the hearing, the plaintiff was represented by Stewart Kamya of M/S Mbeeta, Kamya & Co. Advocates and there was no representation from the defendant despite being served with hearing notices. Counsel for the plaintiff prayed to court for the matter to proceed exparte and the said prayer was granted.

#### *Issues for determination;*

- i) Whether the defendant is a trespasser on the suit land? - ii) What remedies are available to the parties?

#### *Resolution and determination of the issues;*

10. Counsel for the plaintiff submitted that the law on trespass as clearly stated in the case of E. M. N Lutaaya vs Sterling Civil Engineering Company S. C. C. A No. 11 of 2002 is that trespass to land occurs when a person makes an unauthorized entry upon

land and thereby interferes with another person's lawful possession of that land. For one to succeed in a case of trespass, he should establish that the disputed land belonged to the plaintiff, that the defendant had entered upon it and that the entry was unlawful and made without permission or that the defendant had no claim of right or interest in the disputed land.

- 11. Counsel for the plaintiff further submitted that the plaintiff purchased the suit land from one Sowali Munyankiiko and was granted vacant possession of the said land. The defendant without knowledge and consent of the plaintiff unlawfully entered onto the plaintiff's land and started growing sugar canes and erecting temporary structures there on. - 12. I take note of the submissions from counsel for the plaintiff, according to the Supreme Court in **Justine E. M. N Lutaaya v Stirling Civil Engineering(supra)** trespass to land occurs "when a person makes an authorized entry upon land, and thereby interfering, or portends to interfere with another person's possession of that land.

- 13. In order to succeed in an action of trespass, the Court of Appeal in **Sheikh Muhammad Lubowa v Kitara Enterprises Ltd CA No 4 of 1987** observed that one must prove: - *a) That the disputed land belonged to the plaintiff* - *b) That the defendant had entered upon it, and* - *c) That entry was unlawful in that it was made without permission or that the defendant had no claim or right or interest in the disputed land.* - 14. As to whether the disputed land belonged to the plaintiff, In the instant case the plaintiff adduced evidence of a sale agreement and certificate of title to the suit land registered in his names and during the locus visit conducted by court, it was established that it was only the plaintiff in physical possession of the suit land. The land the defendant refers to in his written statement of defence and counter claim does not form part of the suit land. - 15. From the evidence adduced in court and from what court observed during the locus proceedings, the suit land belongs to the plaintiff. - 16. As to whether the defendant made unlawful entry on the suit land? it is the submission of counsel for the plaintiff that the

defendant entered onto the suit land and started growing sugar canes and erecting temporary structures there on. At the locus visit conducted by court, it was observed that it was the plaintiff in actual and physical possession of the suit land, the few sugar cane plantations that were put by the defendant on the suit land were abandoned by the defendant.

17. I am of the view that the unlawful entry that was made on the plaintiff's land was the growing of sugar cane plantations by the defendant who later abandoned them. Therefore, this issue is answered in the affirmative.

#### **What remedies are available to the parties?**

#### General damages;

- 18. In **Charles Acire vs Myaana Engola HCCS No 143 of 1993** it was held that: *"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 if he or she had not suffered the wrong"* - 19. In **Halsbury's Laws of England 4th Ed, Vol 45 (2) (London: Butterworth's 199 at paragraph 526** the law on damages for

trespass is stated as follows: *"In a claim for trespass, if the claimant proves trespass, he is entitled to recover nominal damages, even if he has not suffered any actual loss. If the trespass has caused the claimant actual damage, he is entitled to receive such an amount as will compensate him for his loss. Where the defendant has made use of the claimant's land, the claimant is entitled to receive by way of damages such a sum as should reasonably be paid for that use... …Where the defendant cynically disregards the rights of the claimant in the land with the object of making a gain by his unlawful conduct, exemplary damages may be awarded If the trespass is accompanied by aggravating circumstances which do not allow an award of exemplary damages, the general damages may be increased."*

20. In the instant suit, the plaintiff states in his witness statement under paragraph 5,6 and 7 that the defendant without consent or any color of right stared growing sugar canes and erecting temporary structures on the suit land causing the plaintiff a general inconvenience.

21. Basing on the circumstances of the case, I find an award of Ughs 2,000,000 as general damages awarded to the plaintiff sufficient.

#### **Costs.**

- 22. Under Section 27 of the Civil Procedure Act, costs follow the event. The plaintiff being the successful party in this case is entitled to costs of the suit. - 23. For the foregoing reasons, I proceed to pronounce judgement and decree for the plaintiff against the defendant upon the terms that; - i) A declaration that the plaintiff is the lawful owner of the land comprised in Block 219 Plot 1737 measuring 0.1330 hectares' land at Najjera. - ii) A declaration that the defendant trespassed on the plaintiff's land. - iii) General damages of Ug Shs 2,000,000 awarded to the plaintiff at an interest rate of 10% from the date of the judgement until payment in full. - iv) Costs of the suit awarded to the plaintiff to be paid by the defendant.

**I SO ORDER.**

# **…………………………..**

# **NALUZZE AISHA BATALA**

# **Ag. JUDGE.**

# **29th/11/2024**

# **Delivered Electronically via ECCMIS on the 29th day of November**

**2024.**