Mawerere v Umeme Uganda and Another (Civil Suit 15 of 2020) [2024] UGHC 585 (30 April 2024)

### **THE REPUBLIC OF UGANDA**

### **IN THE HIGH COURT OF UGANDA HOLDEN AT MASINDI**

### **CIVIL SUIT NO. 0015 OF 2020**

### **1. MAWERERE DAVID ………………………………………………………………………………………… PLAINTIFF**

### **VERSUS**

**1. UMEME UGANDA LTD** 10 **2. MTN UGANDA LTD ………………………………………………………………………………….. DEFENDANTS**

### **BEFORE: Hon. Justice Isah Serunkuma**

### **JUDGEMENT**

### **Introduction**

The Plaintiff`s claim against the Defendants jointly and severally is for trespass upon land known as Block Road, Kigulya Hill Road Plot 31 *(hereinafter referred to as the suit land)* for

20 which he seeks a permanent injunction, general and punitive damages for trespass to land, interest on damages and costs of the suit.

### *Plaintiff's Facts*

ignored.

It is stated that the Plaintiff acquired a leasehold interest on the suit land, which he formally registered as a freehold on 2nd December 2015. The second Defendant, in 2010 or thereabouts, caused the first Defendant to pass three high-voltage electric wires through the middle of Plaintiff`s land to its regional switchboard in Masindi District.

It is further stated that the Plaintiff has lost his major source of income because of the 1st and 2nd Defendants' acts. He has been made unable to gainfully utilize the suit land because all the building plans he submitted were rejected because they included the 30 requirement first to shift the power lines. The plaintiff has written several correspondences

to the 1st and 2nd Defendants complaining about the trespass, and they have all been

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#### **1 st Defendant`s facts.**

In its Written Statement of Defence, the 1st Defendant put forward the following facts.

The first Defendant contended that it did not pass any high-voltage electric wires over the Plaintiff`s land without his consent/ permission, as alleged. If any electric wires exist on the Plaintiff`s land, which is denied, they were constructed legally after obtaining all the necessary way leaves for consent from the landowner and/or relevant stakeholders.

The 1st Defendant stated that contrary to the Plaintiff`s allegation, it does not operate high voltage electric wires. That the high voltage electric wires were constructed at the instigation

10 of an independent third party, which had an obligation to obtain all the necessary wayleaves and/ or consent from the landowners likely to be affected by the said electric wires. As such, the 1st Defendant cannot be held liable for the actions and / or inactions of the said independent third party.

It is further stated that if any electric poles and wires belonging to the 1st Defendant exist on the suit land, they are not hazardous and pose no risk to the potential use of the suit land whatsoever. As such, the Plaintiff`s land has always been available for his use.

#### **2 nd Defendant`s Facts**

In its Written Statement of Defence, the 2nd Defendant put forward the following facts.

Contrary to the Plaintiff`s allegation, the second Defendant does not carry out the business 20 of electric wire installation. The high-voltage electric wires were constructed at the instigation of an independent third party, which had an obligation to obtain all the necessary wayleaves and/or consent from the landowners likely to be affected by the said electric wires.

The 2nd Defendant asserts that none of the officials of the 2nd Defendant caused any of the acts claimed by Plaintiff, and therefore, it cannot have caused any inconvenience to Plaintiff. As such, it cannot be held liable for general damages.

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At the trial, Plaintiff led evidence of two (2) witnesses, *Mawerere David (PW1*) and *Fred Kasigwa (PW2),* the Senior Environmental Officer of Masindi Municipal Council. The first Defendant led evidence of one (1) witness, its Manager, Survey and Wayleaves John Muhwezi (DW2). The second Defendant also led evidence of one (1) witness, its *Senior Manager Network Birungi Daniel (DW1).*

After hearing the parties' evidence, the court visited the locus in quo and made observations that were considered when resolving the issues.

# *ISSUES FOR DETERMINATION.*

In the Joint Scheduling Memorandum, the parties agreed on two issues, namely.

10 *1. Are the Defendants liable for trespassing on the Plaintiff`s land comprised in FRV HQT 645 Folio 14 Plot 31 at Kijungu Masindi, measuring 0.2110 Hectares? 2. What remedies are available to the parties?*

# *Representation*

Counsel Bakirana Walter represented the plaintiff, while M/S Shonubi & Company Advocates represented the Defendants. The parties were given leave to file written submissions, which they have complied with. The court has considered these submissions in determining this case.

# *RESOLUTION OF THE ISSUES***.**

# 20 *Whether the Defendants are liable for trespass over the Plaintiff`s land comprised in FRV HQT 645 Folio 14 Plot 31 at Kijungu Masindi measuring 0.2110 Hectares.*

The Supreme Court defined trespass as per the case of *Justine E. M. N Lutaaya versus Stirling Civil Eng. Civ. Appeal No. 0011 of 2002* held that 'trespass to land occurs when a person makes an unauthorized entry upon another's land and thereby interfering with another person's lawful possession of the land.'

The Court of Appeal in *Sheikh Muhammed Lubowa versus Kitara Enterprises Ltd, CA No. 004 of 1987,* observed that one must prove.

- *That the disputed land belonged to the Plaintiff* - *That the Defendant had entered upon it, and* - *That entry was unlawful in that it was made without permission or that Defendant had no claim right or interest in the disputed land.*

# *That the disputed land belonged to the Plaintiff.*

The Plaintiff (PW1), between Paragraphs 3 to 7 of his Witness Statement, testified that he 10 applied for a lease which was granted to him by Masindi Town Council and later registered the suit land as a Freehold interest and a Certificate of Title **(P. Ex 4)** was issued to him.

During cross-examination, PW1's testimony about the ownership of the suit land was unchallenged, so I note that the question of ownership of the suit land is not an issue in this matter.

The 1st Defendant, in his submissions under *Paragraph 3.1.5,* cited the case **of Omito Luka & 5 Ors versus Attorney General, Civil Suit No. 0073 of 2004 (HC Arua)** wherein it was held that *"an action for trespass to land in tort is perceived as a wrong against possession, not ownership of the land. In the latter case only, the person with exclusive possession or an immediate right to possession of the land can sue."*

The 1 20 st Defendant further stated in his submissions under *Paragraphs 3.1.8 and 3.1.11* that Plaintiff was not in occupancy of the suit land when the impugned electric wires were erected and thus does not satisfy the ingredient of possession necessary to sustain an action under trespass.

In the case of *Adrabo Stanley versus Madira Jimmy, Civil Suit No. 0024 of 2013 (HC Arua),* it was stated *that.*

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*"Trespass, when pleaded as part of a suit for recovery of land, requires the Plaintiff to prove either actual physical possession or constructive possession, usually through holding a legal title. There must have been either an actual possession by the plaintiff at the time when the trespass was committed, either by himself or by his authorized representative, or a constructive possession with the lands unoccupied and no adverse possession."*

In the instant matter, the Plaintiff has an uncontested registered interest in the suit land, so he has the locus to sustain an action under trespass against any tortfeasor, whether in actual possession. Thus, this ingredient is satisfied.

# 10 *That the Defendants had entered upon it.*

#### *1 st defendant`s entry upon the suit land*

The Plaintiff (PW1), in his Witness Statement under *Paragraph 9*, stated that sometime in 2010, the 2nd Defendant caused the 1st Defendant to pass three high voltage low-lying electric wires through the middle of his land to the 2nd Defendant`s regional switchboard.

During cross-examination and re-examination, *PW1* testified that the electric wires were still present on his land. Indeed, during the locus visit carried out on the 30th day of May 2023, this court observed that the electric wires passed through the middle of the suit land.

*DW2(John Muhwezi)*, under *Paragraph 6 of his Witness Statement*, testified that none of the 1st Defendant`s agents entered upon and erected the three high-voltage electric supply 20 lines over the suit land, as the same was constructed at the instigation of an independent third party, which had to obtain all the necessary wayleaves and/ or consent from the land owners likely to be affected by the said electric wires.

Further, *DW2 (John Muhwezi)*, during cross-examination, testified that the power lines were constructed by an independent third party employed by the second Defendant, who has never been revealed to the first Defendant despite efforts to have the independent third Party revealed. *DW1(Birungi Daniel)*, during cross-examination, testified that a third party

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was subcontracted and that Uganda Electricity Distribution Company Limited (UEDCL)installed the power lines on the suit land.

Under Section 101 of the Evidence Act, it is stated that "whoever desires any court to give judgment as to any legal right or liability on the existence of facts which he or she asserts *must prove that those facts exist.*" In the instant matter, the 1<sup>st</sup> and 2<sup>nd</sup> Defendants brought up the fact that the impugned power lines were not erected by them but by an independent 3<sup>rd</sup> Party. Further, the **2<sup>nd</sup> Defendant**, through **DW1 (Birungi Daniel)**, brought up the fact that the impugned electric power lines were installed by Uganda Electricity Distribution Company Limited (UEDCL). Considering Section 101 of the Evidence Act, I find that the onus is on them to prove that those two facts really exist.

However, throughout the trial, the alleged independent third Party was never revealed by the Defendants, and no other evidence except testimonies was presented to prove that Uganda Electricity Distribution Company Limited (UEDCL) installed the impugned electric power lines on the suit land. Furthermore, **PW1** testified during cross-examination and reexamination that he always sees individuals who wear Umeme overalls entering the suit land to maintain the power line installations thereon. This act also constitutes entry onto the suit land. It's against that entire background that I find and hold that the ingredient of entry onto the suit land by the 1<sup>st</sup> Defendant has been satisfied.

# 2<sup>nd</sup> Defendant`s entry upon the land.

$\mathcal{L}$

$10$

$20$ **DW1(Birungi Daniel),** in his Witness Statement, testified under **Paragraph 5** that the 2<sup>nd</sup> Defendant Company deals in telecommunication and is not engaged in the business of installing electric poles and electric wires. Further, DW1, in *Paragraph 6 of his Witness* **Statement,** testified that the second Defendant did not erect the impugned electric wire lines. He further stated under **Paragraph 7 of the Witness Statement** that an independent 3rd Party installed the impugned electric power lines. Note is taken that this Independent 3<sup>rd</sup> Party was never revealed.

**PW1**, under **Paragraph 8 of his Witness Statement**, testified that the land opposite the suit land houses the second Defendant's regional switchboard. This was corroborated during the locus visit, during which this honorable court observed that, indeed, the second Defendant`s facility and the suit land are neighbouring each other. He again testified under *Paragraph 9 of his Witness Statement* and, during Cross-examination, that sometime in 2010, the 2nd Defendant caused the 1st Defendant to pass three high voltage low-lying electric wires through the middle of the suit land.

*DW1,* during cross-examination, testified that the Uganda Electricity Distribution Company installed the power lines at the request of the second Defendant. Note that no evidence was presented to prove that Uganda Electricity Distribution Company Limited installed the power lines. *DW2 (John Muhwezi*), during re-examination, testified that the effect of 10 disconnecting the electric power lines would disconnect the 2nd Defendant`s switchboard, which may deprive the area of network coverage.

From the above evidence, Plaintiff did not show that, at any point, the second Defendant entered the suit land but rather induced the first Defendant to enter the suit land for the benefit of the second Defendant. In Uganda, jurisprudence has not developed to handle circumstances under which a person *(Secondary tortfeasor)* induces another *(Primary tortfeasor)* to carry out a tortious act. Thus, a resort is made to common law for a resolution.

Under common law, the liability of a person who induces another to trespass or enter someone else's land can be complex and is often governed by tort law principles. While the primary liability rests with the individual physically committing the trespass, there are 20 circumstances where a person who induces or encourages such trespass may also bear legal responsibility.

One key legal doctrine applicable in such cases is the principle of *"procuring or inducing another to commit a tort."* This concept extends liability beyond the immediate wrongdoer to those who actively encourage or facilitate the commission of a tortious act. By inducing someone to trespass/ or enter on another's land, the instigator becomes a party to the wrongful conduct and may be held liable for the resulting damages.

Case law has played a crucial role in shaping the legal landscape surrounding the liability for inducing trespass. One notable case is the English decision *of R v. Cunningham [1957]*

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*3 WLR,* where the court held that *"an individual could be criminally liable for procuring another to commit a trespass."* While criminal liability and civil liability are distinct, such cases underscore the importance of the principle that encouraging or procuring trespass can attract legal consequences.

In civil cases, the concept of aiding and abetting a trespass might be invoked. If a person actively encourages, aids, or participates in the trespass, they could be held liable alongside the primary trespasser. The landmark case of *Hamlyn v. Houston & Co. [1903] 1 K. B. 81* established that someone who aids, counsels, or procures another to commit a trespass may be liable for the resulting damage.

In the instant case, therefore, the 2 10 nd Defendant being the instigator and beneficiary of the 1 st Defendant`s entry upon the suit land, this ingredient of entry upon the disputed land is satisfied as against the 2nd Defendant.

## *The entry was unlawful because it was made without permission, and the Defendants had no claim, right, or interest in the disputed land.*

**PW1**, under *Paragraphs 10 and 11 of his Witness statement* and during crossexamination, testified that the electric power lines were erected on his land without his consent and/ or authorization. He further testified under *Paragraphs 12, 13, and 15 of his witness statement* that he complained to the Defendants when he realized the electric power lines were erected unto the suit land. These complaints were admitted in evidence 20 and marked as *P. Ex 5, P. Ex 6, P. Ex 7, P. Ex 8, and P. Ex 9.*

**Section 67(3) of the Electricity Act** provides that *"A licensee shall do as little damage as possible to the land and the environment and shall ensure prompt payment of fair and adequate compensation to all interested persons for any damage or loss sustained because of the exercise of the powers under this section."*

Under the aforesaid section, the first Defendant, being a licensee, must pay fair and adequate compensation to landowners who are likely to be affected during the exercise of their powers provided under the same Section. In the instant matter, the first Defendant

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didn't provide any proof that it advanced any payments to Plaintiff as compensation before erecting the electric power lines.

**Section 67(4) of the Electricity Act** provides that *"A licensee shall, except for the maintenance or repair of an electric supply line, before entering any private land for the purposes specified under subsection (1), give sixty days' notice to the owner of the land, stating as fully and accurately as possible the nature and extent of the acts intended to be done. (See the case of Mugerwa Sulait versus Umeme Ltd, HCCS No. 0086 of 2012).* PW1, under Paragraphs 10 and 11 of his Witness Statement and during Cross-examination, 10 testified that he was never informed when the electric power lines were being erected. Thus, the Defendants' actions offended Section 67(4) of the Electricity Act.

*Section 58(3) of the Electricity Act* provides that "*Where a holder of a distribution license cannot, due to any reason other than lack of capacity or technical conditions, allow access to the distribution system, a consumer may apply to the authority for permission to access the distribution system and construct an electric supply line to his or her premises."* A consumer is defined under *Section 3(g) of the Electricity Act* as any person supplied or entitled to be supplied with electrical energy for personal, industrial, and commercial use but does not include a person supplied with electrical energy for delivery to another person.

The afore-mentioned section allows the 2nd Defendant to construct an electric supply to its premises after fulfilling the conditions thereunder. During the locus visit, **DW2** testified that the customer is responsible for securing way leaves for a line that supplies a particular customer. The customer referred to here is the 2nd Defendant. He further testified that the 2 nd Defendant contracted a 3rd Party who constructed the electric power lines. However, this was contradicted by the Defendants` further testimony that the power lines were installed by Uganda Electricity Distribution Company Limited and their failure to disclose the 3rd Party.

*Regulation 7.3.1 of the Electricity (Primary Grid Code) Regulations* provides that.

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*"A licensee shall use its best endeavor to make supply available at a new supply address on the date agreed with the consumer, or where no date is agreed upon with the consumer, as soon as practically possible, provided that-*

*a)………………………; b)………………………; c)………………………..;*

*d) Conditions pertaining to way leaves have been satisfied.*

From the afore-regulation, the 1st Defendant, as a licensee under the Electricity Act, is obliged not to make supply before conditions pertaining to wayleaves are met. The 1st 10 Defendant did not provide any evidence to show that the conditions pertaining to the way leaves were met before constructing the electric power lines on the suit land. It's against this background that I hold that Defendant`s entry onto the suit land was unlawful as it was made without permission from Plaintiff and in blatant disregard of the afore-stated laws.

Having found that the Defendants entered the Suit land and that their entry was unlawful as it was made without permission from the Plaintiff, I find the Defendants liable for trespass on the Suit land.

## 20 *What Remedies are available to the parties?*

In the Plaint, the Plaintiff sought a permanent injunction against the Defendants, general damages, and Interest on general damages from the date of Judgement until payment in full and Costs of the suit.

Given the resolution of Issue 1, I order a permanent injunction against the Defendants from further trespassing on the suit land. I further order the Defendants to remove the impugned electric power lines from the suit land at their own cost. Alternatively, the Defendants can seek permission or negotiate with the plaintiff on his terms to continue using the electricity power lines on the suit land.

On the Plaintiff`s prayer for general damages, the Plaintiff led evidence and showed that he had been put out of the use of the suit land ever since the electric power lines were erected on the suit land in 2010. He further led evidence and showed that Masindi Municipal Council rejected all his development plans due to the impugned electric power lines on his land. Thus, he prayed for general damages to the tune of **UGX 1,000,000,000/= (One billion Uganda Shillings).**

In the case of *Tayebwa Geoffrey & Besingomwe Edison versus Kagimu Ngudde Mustafa HCCS No. 118 of 2012,* it was stated: *"that in the assessment of general damages, Courts are mainly guided by the value of the subject matter, the economic inconvenience that the*

10 *innocent party may have been put through and the nature and extent of the breach suffered."* See Also the case of *Charles Acire versus Myaana Engola HCCS No. 143 of 1993.*

Taking into account the value of the suit land, which was declared to be **UGX 250,000,000/= (Two hundred fifty million Uganda Shillings**) in the Plaint and the inconvenience suffered by the Plaintiff as a result of the two Defendants` acts, I award UGX **200,000,000/= only (Two hundred million Uganda Shillings)** as general damages to the Plaintiff at Court rate from the date of judgment till full payment.

On the prayer for punitive damages, I am inclined not to award the same to the Plaintiff. The Plaintiff never prayed for punitive damages in his Plaint; they were only smuggled in his submissions. *Order 6 Rule 7 of the Civil Procedure Rules* provides that "*No pleading shall,* 20 *not being a petition or application, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading that pleading."* In the case of *Semalulu versus Nakitto, HCCA No. 0004 of 2008*, it was held that "*parties are bound by their pleadings*." It's against that background that I decline to award punitive damages.

In the final result, Judgment is entered for the Plaintiff against the Defendants jointly in the following terms: -

a) A permanent Injunction against the Defendants from further trespass on land described as Block Road, Kigulya Hill Road Plot 31 land at Kijungu.


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- b) An order to remove the electric power lines from land described as Block Road, Kigulya Hill Road Plot 31, at Kijungu, at the Defendants' cost. - **c)** General damages at the tune of **UGX 200,000,000/= (Two hundred million Uganda Shillings).** - d) Interest at the rate of 18% per annum on the sum in (c) above from the date of this judgment until payment in full. - e) Costs of the suit.

## **It is so ordered.**

## 10

**Dated and delivered on this 30 th Day of April 2024.**

……………………… **Isah Serunkuma JUDGE**