National Social Security Fund v Kyambadde (Civil Suit No. 188 of 2013) [2015] UGHCLD 259 (26 May 2015)

Full Case Text

## **LAND DIVISION PLAINTIFF THE REPUBLIC OF UGANDA IN THE HIGH COURT OF** UGANDA **AT** KAMPALA **CIVIL SUIT NO. 188 OF 2013 NATIONAL SOCIAL SECURITY FUND (NSSF):::::::**

*VERSUS*

**DAVID KYAMBADDE DEFENDANT**

## *1 BEFORE: HON. MR. JUSTICE BASHAIJA K. ANDREW*

# *»JUDGMENT*

**10** *NATIONAL SOCIAL SECURITY FUND (NSSF) ( hereinafter referred to as the "plaintiff')* brought this suit against *DAVID KYAMBADDE (hereinafter referred to as the "defendant')* seeking for a declaration that the defendant is unlawfully occupying the plaintiffs land comprised in Busiro Block 269 Plot 1058 land at Lubowa *(hereinafter referred to as the "suit land'')* an order that the defendant be evicted from the suit land and the demolition of *£* structures erected by the defendant, a permanent injunction restraining the defendant, his agents, nominees, or representatives, from occupying and or using the suit land, general damages for trespass, and costs of the suit.

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#### *Background:*

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- It ls the plaintiff's case is that on the 28th of November, 2003, it purchased the suit land from National Housing and Construction Corporation (NH&CC). On 30th June 2004 the plaintiff was registered as proprietor of the suit land. Sometime in 2010 the plaintiff discovered that the defendant had encroached upon the suit land by constructing thereon a basket ball and volley ball pitches, a fence and other related structures. This prompted the plaintiff to request the Government Surveyor to determine the extent of Government Surveyor established that the extent of encroachment by the defendant on the plaintiffs land was 0.882 hectares. encroachment on the land. By his report dated 27th October, 2011, the - 5 O The plaintiff then petitioned the Resident District Commissioner (RDC) for Wakiso District, who summoned the parties for a meeting regarding the suit land. The said meeting decided that the defendant was a trespasser on the suit land and that he should vacate the same. The defendant did not oblige the decision of the meeting hence the plaintiff filed this suit seeking the orders above. The plaintiff contends that as a result of the defendant's the planned development of the suit land. unauthorized acts, it has suffered loss and damage as it cannot embark on

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deed as a *kibanja* in 1995 before her demise. Their family had occupied and possessed the same since the 1950s, and previously had a small house, gardens and banana plantation on the *kibanja,* which he has since developed with a church and play grounds of volleyball and basket ball For his part, the defendant denied the plaintiff's claims. He contended that he derives his title/ claim for the particular piece of land located in the suit land from his late mother Mary Nakakawa Nalongo who gave it him by pitches, as well as a social center for destitute children.

The defendant further contended that he has been in occupation and possession of the suit land without any interruption from anybody until 2013 when the plaintiff started laying claims over the defendant's *kibanja* having obtained title in 2004. The defendant also contended that his equitable plaintiffs suit against him be dismissed with costs. interest in the suit land was prior in time to that of the plaintiff and thereby supersedes the claim of the plaintiff. The defendant prayed that the

The parties filed that the plaintiff is the registered proprietor of the land described in Kyadondo Block 269 Plot 1058 land at Lubowa since the 30th June, 2004, a joint scheduling memorandum and agreed on the fact

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and also that the defendant is in occupation of part of the suit land. The following issues were agreed upon for determination by court;

## *1. Whether the defendant is a lawful or bona fide occupant on the suit land.*

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

The plaintiff was represented by Mr. Bernard Namanya of *M/s. BNB Advocates* while the defendant by Mr. Kabega Moses of *M/s. Kabega, Bogezi & Bukenya Advocates.* Both Counsel filed written submissions to argue the case and supplied to court copies of authorities they relied on. I when occasion calls for it. must thank both Counsel for that. I will not reproduce the submissions in this judgment, but I will make specific references to them in this judgment

Musoke, former Corporation Secretary NH&CC, PW2 Daniel Ssemwanga, former General Manager Mitchell Cotts Uganda Ltd, PW3 John Vianney **I** Lutaaya, the Principal Staff Surveyor in the Ministry of Lands, Housing & Urban Development, and Kyarikunda, the Head Administration NSSF (the plaintiff). The defendant also adduced evidence The plaintiff adduced evidence of four witnesses to wit; PW1 Peters PW4 George

Muhima all residents of the area where the suit land is located. The evidence of all witnesses is on court record. I will not reproduce it in detail in this judgment. I will only highlight the salient aspects of the evidence which are quite relevant to the facts in issue. of four witnesses to wit; DW1 David Kyambadde (the defendant), DW2 Kevina Namatovu, DW3 Josephine Nyinabazungu, and DW4 Asuman

I also need to point out that this court visited *locus in quo* pursuant to *Practice Direction No1 of 2007,* which spells out guidelines for locus visits, and requires that a trial court should ideally visit the land in issue physically before pronouncing itself on proprietary rights of the parties regarding land.

*^Resolution ofissues:*

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*Issue No.1: Whether the defendant is a lawful or bona fide occupant on the suit land.*

*Section 29 (1) Land Act (Cap.227)* defines a lawful and *bona fide* occupant is. The relevant provisions state that;

*"(1) ''Lawful occupant" means—*

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*(b) a person who entered the land with the consent of the registered owner, and includes a purchaser; or*

*(c) a person who had occupied land as a customary tenant but*

*whose tenancy was not disclosed or compensated for by the registered owner at the time of acquiring the leasehold certificate of title.*

*(2) "Bona fide occupant" means a person who before the coming into force of the Constitution—*

- *[& (a) had occupied and utilised or developed any land unchallenged by the registered owner or agent of the registered owner for twelve years or more; or* - *(3)*

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- *(4)* - *(5) Any person who has purchased or otherwise acquired the interest of the person qualified to be a bona fide occupant under this section shall be taken to be a bona fide occupant for the purposes of this Act.*

While considering the above provisions, the Supreme Court in the case of **1(0** *Housing and Construction Corporation, SCCA No. 2 of 2004,* held that *Kampala District Land Board & Chemical Distributors vs. National*

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for a person to successfully claim to be a *bona fide* occupant, he must have been in occupation or possession of the suit land for more than 12 years at the time of coming into force of the 1995 Constitution without any challenge 11-6 from the registered owner.

In the instant case, the defendant asserts claim to the suit land as a *bona fide* occupant of the suit land as *kibanja* holder. His claim is summarized in his averments in paragraph 3(a) (b) (c) (d) and (e) of the written statement of defence. In brief, he states that he derives his title as a *kibanja* holder [^-jfrom his mother the late Mary Nakakawa nalongo who transferred it to him by deed dated 12/02/1995. That the defendant's family had occupied and utilized suit *kibanja* uninterrupted from anyone since the 1950s until 1913 when the plaintiff started laying claim over the defendant's *kibanja* having obtained title in 2004.

The defendant further testified that his late mother settled on the land long before the plaintiffs predecessors in title and used to pay *Busuulu* to the corroborated by DW2 Kevina Namatovu that the defendant built a church the suit land where his late mother's house used to be, and that the **(2,0** on owners of the land the family of the late Yusuf Ssuna Kiwewa, including one Kasalina Nalinya. The testimony of the defendant in this respect was

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was buried in the *kibanja* behind her house. grave of the defendant's mother was located on the suit land. Josephine Nyinabazungu and Asuman Muhima, who testified as DW 3 and DW4 respectively, also corroborated the testimony of the defendant that the church building is located on the suit land and that the defendant's mother

The plaintiff, for its part, adduced evidence of PW1 Peters Musoke, formerly employed by the NH&CC, and PW2 Daniel Ssemwanga formerly employed by Mitchel Cotts (U) Ltd/ Uganda Company (Holdings) Ltd. PW2 testified that that the latter company got registered on the land as proprietor 108.2 acres to the former company. Substitute copy of a certificate of title for land comprised in FRV 82 Foliol Kyadondo, West Mengo, known as Lubowa Estate was tendered in court as *Exhibit P1.* This is in respect of the original parcel of land owned by Uganda Company (Holdings) Ltd before it Ns was sub - divided. o on 25/01/1958 and was in lawful possession until later in 1998 when it sold

PW2 further testified that *Exhibit P5,* which is a copy of certificate of title for FRV 321 Folio 5 Kyadondo Plot 100 known as Lubowa Estate (at page 15 of the plaintiffs trial bundle) in the name of Uganda Company (Holdings) Ltd was sold to NH&CC in June, 1998. Out of this land was curved a piece

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of land measuring 67 acres comprised in Kyadondo Block 268 Plot 1058 Lubowa, whose certificate of title is *Exhibit P6,* on which the suit land is located, and that there were no adverse claims by any customary/ *kibanja* tenants on the suit land at all.

the land. Further, that up to 2004 when the certificate of title, *Exhibit P6,* was obtained by the plaintiff company, not a single claim from a *kibanja* or customary tenant came up in respect to the suit land. This evidence which did not reveal the existence of any *kibanja* tenants or other claims on corroborates that of PW2 that there were no *kibanja* or customary tenants on the suit land when the plaintiff company purchased the same. PW1 stated that he participated in the purchase of the suit land, and that *\&* they conducted a due diligence exercise of the land prior to the purchase

It is noted that even though the instant suit was instituted by the plaintiff who bears the burden to prove its case on balance of probabilities, the particular facts shift that burden onto the defendant who claims a *kibanja* interest and as a *bona fide* occupant to prove his claim. It is trite law that he who alleges must prove. Section *103 of the Evidence Act (Cap. 6)* shifts the evidential burden on the party who alleges existence of particular facts to prove the allegations. It provides as follows;

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**J** *provided by any law that the proof of that fact shall lie on any particular person.''[Underlined for emphasis]. The burden of proof as to any particular fact lies on that person wishes the court to believe in its existence, unless it is*

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*bona fide* occupant on the suit land as a *kibanja* holder to sufficiently [^'demonstrate that he was in occupation and possession of the suit land uninterrupted by the registered owner for 12 years before the coming into force of the 1995 Constitution. This position was confirmed by the Supreme Court in the case of *Muluta Joseph vs. Katama Sylvano, SCCA No. 11* It is thus incumbent upon the defendant, in this case, who claims to be a *of 1999,* that the burden of proof rests on the person claiming to be a *kibanja* holder to adduce evidence to prove his claim.

I need also to emphasize for clarity that the actual piece of land in controversy is constituted in 0.882 hectares out of the entire land comprised in Busiro Block 269 Plot 1058 land at Lubowa. That particular piece of the land is currently developed with volleyball and basket ball well as a social center for destitute children whose portion of the ^.-pitches, as building falls partly within the boundary of the surveyed area of land belonging to the plaintiff. The other developments of the defendant which

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include a developments of the defendant on it that is in contention by the parties. This area is clearly illustrated in the attachments at page 58 and 59 of the report of Lutaaya John Vianney the Principal Staff Surveyor, Surveys & Mapping, at page 57 of the plaintiffs trial bundle, which was admitted as *Exhibit P2,* and also in the sketch drawn(not to scale) by court during the locus visit. church building fall outside the boundaries of the actual piece of land under contention. It is only that particular piece of land which covers measuring approximately 0.882 hectares with the said / an area

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From the evidence above adduced by both sides, in particular the exhibited certificates of title, it is clear to me that the Uganda Company (Holdings) Ltd and NH&CC are predecessors in title to the plaintiff company in respect ^ec- of the suit land. It is also clear to me that the actual piece of land in dispute falls within the land comprised in *Exhibit P6,* which is registered in the name of the plaintiff company. It emerges vividly from evidence of the documented ownership history of the suit land that there is no mention anywhere of the name of Yusufu Suuna Kiwewa or Nnalinya Kasalina V^Nkinzi as having previously been owners of the suit land. Therefore, if it is true that the defendant's mother used to pay Busuulu to the family of

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Yusufu Suuna Kiwewa as her landlords, then the payments were not in respect of her kibanja on the suit land because the suit land did not form part of estate of the family of Yusufu Suuna Kiwewa.

o Documentary evidence on court record amply shows that the suit land has since 25/01/1958 lawfully belonged to the plaintiff's predecessors in title the Uganda Company (Holdings) Ltd and NH&CC respectively. PW1 and PW2 clarified without any contradiction that these companies have never acknowledged the defendant or his mother as having a kibanja interest on the companies' land. They also confirmed that neither the defendant nor his $25$ mother has ever paid any *Busuulu* dues to the respective companies as landlords. The defendant did not adduce evidence of receipts of Busuulu payments to anyone; and as such there is no proven tenant-landlord relationship. Since the plaintiff company acquired title through purchase from the said companies which, and since for the time they owned the land it was free of any adverse claims from any person, on this account alone the defendant would not qualify as a lawful occupant on the suit land within the meaning of Section 29(1) of the Land Act (supra).

On whether the defendant is a bona fide occupant on the suit land, he maintained in his testimony in court that all his developments including the $\zeta_{\mathcal{L}\mathcal{L}}$

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not reflect the facts in evidence as the defendant had vehemently presented them to be in court. The defendant then attempted shift stance and stated as follows; evidence was corroborated in that respect by the residents of the area DW2, DW3 and DW4 respectively. However, when court had the occasion church and his late mother's grave are located on the suit land. This to visit the *locus in quo* on 17th October, 2014, the facts on the ground did

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*"I came to know the church is outside NSSF land after the report came out. I now know it is out. The burial grounds of my late mother are also outside Plot 1058 behind the church..."*

2013, done by PW3 Lutaaya John Vianney, the Staff Surveyor of the Ministry of Lands, Housing & Urban Development located at Entebbe. He stated that he carried out the task of opening up boundaries in the showed that the developments of the defendant occupy 1.62 exercise The report which the defendant was referring to his evidence at the locus visit is *Exhibit P3,* which is a boundary opening report dated 16th October, presence of the Lubowa Police Commandant in the company of four Police officers, five staff from the plaintiff company and the defendant, and that the

acres out of the plaintiff's land. PW3 confirmed that he did not see graves on the suit land.

exactly that the church and his mother's grave were not located on the suit invariably raises very serious credibility issues as relates to his testimony. |\_2gp v\*une- 2014, at the locus attempted to change his earlier stance. This land. He nonetheless went ahead and testified to the contrary, and on 17th Given this particular piece of evidence, it would imply that by 24ih March, 2014, when the defendant was giving his evidence in open court he knew

While the defendant had occasion during the locus visit to try and explain away the glaring discrepancy in his own testimony, the same was not **1** possible with evidence of DW2, DW3, and DW4 who had earlier in open untruthfulness intended to mislead. This cannot be taken lightly. As was possibility that a witness is not telling the truth. Similarly in the instant case, | .25LS court corroborated the defendant's evidence in that material particular. This a too renders their evidence and that of the defendant to be quite at variance and contradictory. The contradiction is viewed as grave because it was never was satisfactorily explained, and it embeds in it a streak of deliberate J held by the Supreme Court in *Shokotali bAbdulla Dhalla vs. Sadrudin Meralli SCCA No. 32 of 1094,* a contradiction which is major leads to

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it means that the contradiction within the defendant's testimony and between his evidence and that of his witnesses fundamentally undermines the credibility of their evidence, which must be evaluated in that light.

The above aside, it is important to ascertain whether the defendant trespassed on the suit land in 2010 as claimed by the plaintiff or whether he already had constructed pitches from 2006. The defendant and his witnesses maintained that the area in dispute where the pitches are located used to be gardens of the late Mary Nakakawa Nalongo. DW2 stated that the defendant's late mother had a banana plantation and a sweet potato garden. The same facts were stated by DW3. DW4 stated that he knew the defendant's land very well, but that he could tell know exactly when the defendant put up the developments on the suit land.

**1/** ^^The plaintiff evidence as adduced by PW1 and PW2 is that no customary tenants or *kibanja* holders ever existed on the suit land when it was purchased by the plaintiff in June, 1998. That sometime in 2007 the plaintiff's entire land's boundaries were marked by M/s Associated Consulting Surveyors, by erecting concrete pillars along the boundaries which is constituted in *Exhibit P7 and P8.*

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case with the RDC for Wakiso District where a decision was taken that the defendant should leave the suit land, but the defendant refused to leave. That when the plaintiff attempted to evict him, the defendant resisted the eviction. PW4 was specific that the defendant started encroaching on the suit land in September, 2010, and that a case of trespass was reported to police vide CRB 505/2010. That this prompted a meeting between the parties in this

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After evaluating the evidence as a whole on this point, the inevitable and logical inference is that it is not true that the defendant had lived on the suit **I** land unchallenged by the plaintiff or its predecessors in title for 12 years or more before the coming into force of the 1995 Constitution. In *Exhibit P7* **I** *and P8,* the boundary opening reports when the concrete pillars were erected along the boundary of the land way back as 2007, no mention is **1** made of the of the existence the volleyball and basket ball pitches and the the earlier boundary opening report in *Exhibit P3,* by M/s. land in Byokusheeka & Co. Chartered Surveyors. other developments of the defendant on the suit land. Similarly no mention is made of the existence of any the defendant's developments on the suit

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Again from the testimony of PW4, George Kyarikunda, the Head of **2** Administration with of the defendant's developments was commenced in September, 2010, by the defendant pilling soil and murram on the disputed portion of the land to pave way for the pitches and the other developments. He was promptly challenged by the plaintiff who reported a case of trespass at the police defendant acknowledges that the plaintiff erected the concrete pillars in 2007 and also complained against him in 2010. It is therefore not true for the defendant to turn around and claim that he has been occupying the suit j^gjand since 1950s unchallenged by the registered owners until 2013. It is evident that prior to the defendant's entry there was no activity on the suit land. The activity by the defendant in from of pitches started in 2010, and this is corroborated by *Exhibit P9,* a report by Knight Frank made in November, 2010, which is the only report that mentions the basket ball the suit land. It is also dispels the defendant's claims against the defendant in 2010. Even the Police file reference number *"CRB* 505/2070" proves that the criminal case was registered in 2010. Indeed the ^i^pitch constructed in that the plaintiff only started laying claim over the suit land in 2013. the plaintiff company, the construction

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argued that the law is that interest of a party who acquires proprietorship *MMB 18 of 1993 and Bakamukuturaki vs. Godfrey Kavuma, HCS No. 130 of 1993.]* Mr. Kabega Musa, Counsel for the defendant, argued (at page 4 paragraph 3 of his written submissions) that none of the plaintiff's witnesses knew the I boundaries of the defendant's late mother's *kibanja* nor was evidence led | by the plaintiff to support the submission by the plaintiff's counsel that the j defendant went beyond the boundaries of his late mother's kibanja. Cousel » counsel cited *Section 64 (2) RTA and the cases of Y. Kaberegye vs.* | *Sowedi Bampate & 2 others HCCA No.* over registered land takes it subject to the people in occupation. In this

Mr. Kabega then crowned it all with a statement which I consider to be adducing evidence from the Bar, and stated that;

*crossing boundaries of surveyed land..." ''It is not uncommon for a kibanja to be on two or more plots*

not on the plaintiff's land. With due respect to Counsel, this contention is unsupported as it is not premised on the evidence. Certainly none of the plaintiffs witnesses would know the boundaries of the defendant's late mother's *kibanja* which was

**18** who maintained while giving evidence in open court that the church and grave are located on the suit land where the defendant's late mother's house used to be and where she cultivated crops. It would seem that in so truthful on the issue, the defendant attempted to shift position as earlied **1** observed that he had not known of the extent of his mother's *kibanja* **1** holding when he testified. This too was deliberately untruthful because he had actually attended the boundary opening exercise by PW3 in 2007, and **3** before he testified with his witnesses in court these facts were well within **3** his knowledge. saying, they never anticipated the locus visit. When the visit materialised and established that the defendant's evidence in open court had not been % Secondly, it ought to be noted that it was the defendant and his witnesses

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**3** The truth therefore is that the defendant simply in September, 2010, **3** expanded his developments beyond his *kibanja* holding. He was resisted **3** by the plaintiff who reported a case against him of trespass to police, the RDC, and the defendant was subsequently sued in the instant case. It is *3* therefore purely a case of the defendant trying to wrongfully and illegally lay **J** claim on land over his boundary line, and just using witnesses with merely **I** general knowledge of the area to support his claim. The defendant has

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under provisions of *Section 29 of the Land Act (supra)* on the suit land. dismally failed the test as a *bona fide* occupant on the suit land. He is thus precluded from enjoying any protection accorded to *bon fide* occupants

The net effect is that the defendant committed acts of trespass on to the suit land and his continued stay thereon amounts to a continuous tort of trespass. It is settled that trespass to land occurs when a person makes an person holding a certificate of title has legal possession of that land. See: *Justine E. N Lutaaaya vs. Sterling Civil Engineering Co Ltd, SCCA No.11 of 2002.* In the same case, it was held that the constitutional **I** binding on this court. provisions on legitimate and *bona fide* occupants are not intended to protect trespassers on land. I cannot but only add that the decision is j unauthorized entry upon land, and thereby interferes or portends to interfere with another person's lawful possession of that land and that a

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**I** Before taking leave of this issue, I wish to observe, in passing, that I have not found helpful the submissions of Counsel for the plaintiff regarding the to this case of *Section 4* of the *Land Reform Decree, 1975.* It gp application specifically dealt with acquisition of customary land on public land, whereas the suit land in the instant case does not fall within the category of "public

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land . Similarly the of *Godfrey Ojwang vs. Wilson Bagonza, CACA No.25 of 2002,* which Counsel for the plaintiff cited in support of his argument concerns a holder of customary tenure on public land, which is not applicable to facts of the instant case as the land in issue is not public land.

# *Issue No 2: What are the remedies available to the parties?*

The plaintiff prayed for a declaration that the defendant is unlawfully occupying the plaintiffs land; an order of eviction of the defendant from the suit land and the demolition of structure erected by the defendant; a permanent injunction restraining the defendant, his agents nominees or representatives from occupying and/or using the suit land; general damages and costs of the suit.

, From the findings above, the plaintiff has amply proved that it is the lawful which the particular piece of land constituting the suit land in contention is located. Since the defendant was unable prove the existence of his *kibanja* interest as a customary tenant on the suit land, it follows that the defendant is unlawfully occupying the plaintiffs land and a trespasser on the suit land. Similarly, the defendant's developments on suit land comprised in a piece owner of the land comprised in *Kyadondo Block 269 Plot 1058 Lubowa* on

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measuring 0.882 hectares are illegally on the plaintiff's land. In the case of *Muluta Joseph vs. Katama Sylvano(supra)* the Supreme Court upholding the decision of the Court of Appeal t held that;

*"The Court of Appeal having held that there was no customary tenure relationship between the appellant and the respondent, by this finding alone, any structures put up by the appellant would be illegal and their demolition would be justified. Therefore the appellant was subject to the demolition warrant."*

Similarly, in the instant case, the defendant's illegal developments comprised of basketball and volleyball pitches, children swings, crosswire fence, and part of the building housing the social centre for destitute **I** children are subject of demolition.

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The defendant denied ownership the building housing the social centre for destitute children during the locus visit. However, evidence of PW3 dispels any such denials. During the boundary opening on the 14th October, 2013, which was in his presence, the defendant never disputed ownership of the **i** school. Apart from that, the defendant in his written statement of defence, **0** in paragraph 3 (b), avers, *inter alia,* that among the developments he owns housing social center of destitute children is the building whose portion on the suit land is a social centre for destitute children. The only building

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extends across the boundary into that the suit land. Therefore, the defendant's denials in that respect were in vain.

CfK suffered due to the defendant's acts on the suit land. The settled position is that the award of general damages is in the discretion of court, and is always as the law will presume to be the natural and probable consequence of the defendant's act or omission. See: *James Fredrick Nsubuga vs. Attorney General, H. C. C. S No. 13 of 1993; Erukan Kuwe vs. Isaac Patrick Matovu & A'nor H. C. C. S. No. 177 of 2003 per Tuhaise* The plaintiff also prayed for general damages for the inconvenience

Further in *Placid Weli vs. Hippo Tours & 2 Others H. C. C. S. No. 939 of 1996,* in which court cited *Halsbury's Law of England 3rd Edition Vol. 38* the plaintiff loss, the plaintiff is entitled to receive such an amount as will compensate him for the loss. The purpose of damages is to put the plaintiff in as good a position as he would be if the trespass had not occurred. *paragraph 1222,* it was held that trespass is actionable *parse* even if no damage was done to land. That a plaintiff is entitled to recover damages even though he has suffered no actual loss, but that if trespass has caused

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*Commercial Bank vs. Kigozi [2002] 1 EA. 305.* A plaintiff who suffers damage due to the wrongful act of the defendant must be put in the **1** See; *Charles Acire vs. Myaana Engola, H. C. C. S No. 143 of 1993;* **1** *Kibimba Rice Ltd. vs. Umar Salim, SCCA No.17 of 1992.* Also, in the assessment of the quantum of damages courts are mainly guided by the value of the subject matter, the economic inconvenience that a party may have been put through at the instance of the opposite party, and the nature and extent of the breach or injury suffered. See: *Uganda* position he or she would have been if she or he had not suffered the wrong.

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In the instant case, the particular evidence bearing on that issue by PW4 **3** developments on the suit land. Further, that the plaintiff lost income and expenses in attending meetings in order to resolve the dispute by the local authorities. profit that would have been earned from the developments on the suit land. That the plaintiff also incurred costs in transport and other miscellaneous (p^jwas that due to the acts of the defendant of occupation, use and claim of ownership of part of the suit land, the company could not make any

> on On strength of the above cited authorities, I am satisfied that the plaintiff suffered loss on account of the defendant's unlawful and unauthorized acts the suit land, Relying on the case of *AKPM Lutaaya vs. Attorney*

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General, Civil Appeal No.2 of 2005, where the Court of Appeal awarded Shs.100, 000,000 as general damages to the plaintiff for the trespass that lasted two years on the suit land, Counsel for the plaintiff in the instant case proposed a figure of Shs. 200,000,000. While I agree that the trespass in the instant case occurred since September, 2010, and has been $GSS$ continuing, the particular circumstances of this case would merit a lesser figure. I have especially considered that the area trespassed upon is not very big compared to the overall land owned by the plaintiff need for their development of a housing estate. I therefore consider the figure of Shs. 100,000,000 to be fair and adequate general damages, and award the same to the plaintiff. $60$

On the issue of costs, it is the established law, under Section 27(2) of the Civil Procedure Act (Cap 71) that costs are awarded at the discretion of court, and shall follow the event unless for good reasons the court directs otherwise. See: Jennifer Rwanyindo Aurelia & A'nor vs. School Outfitters (U) Ltd., C. A. CA No.53 of 1999; National Pharmacy Ltd. vs. Kampala City Council [1979] HCB 25. In the instant case, the plaintiff has succeeded on all the issues and there is no compelling and justifiable reason to deny them costs of the suit. Accordingly, it hereby ordered as follows;

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$146s$

$241$

- *^^1. The plaintiff's land comprised in Busiro Block 269 Plot 1058 land at Lubowa. defendant is a trespasser and unlawfully occupying the* - *2. An order doth issue that the defendant be evicted from the suit land* - *3. An order doth issue for the demolition of structures erected by the defendant on the suit land.* - *4. A permanent injunction doth issue restraining the defendant, his agents, nominees, or representatives, from further occupying and or using the suit land.* - *5. The defendant pays to the plaintiff Shs 100,000,000, as general* **I** *damages for the trespass on the suit land.* - *6. The defendant pays costs of the suit.*

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**I** 7. *The amount in (5) above shall attract interest at court rate of 6% per annum from the date ofjudgment util payment in full.*

*BASHAIJA K. ANDREW JUDGE 26/05/2015*

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# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION)

# CIVIL SUIT NO. 188 OF 2013

#### PLAINTIFF NATIONAL SOCIAL SECURITY FUND(NSSF) ::::::

### VERSUS

DAVID KYAMBADDE DEFENDANT

# **I** DECREE

This suit coming on this 26th day of May, 2015, for disposal before HON. MR. JUSTICE | BASHAIJA K. ANDREW in the presence of Mr. Bernard Namanya, Counsel for the Plaintiff B and in the absence of the Defendant.

### IT IS HEREBY ORDERED AND DECREED that;

- 1. The Defendant is a trespasser and unlawfully occupying the Plaintiffs land comprised in Kyadondo Block 269 Plot 1058 land at Lubowa. - 2. An Order doth issue that the Defendant be evicted from the suit land. - 3. An Order doth issue for the demolition of structures erected by the Defendant on the suit land. - 4. A permanent injunction doth issue restraining the Defendant, his agents, nominees, or representatives, from further occupying and/or using the suit land. - 5. The Defendant pays to the Plaintiff Ug. Shs. 100,000,000/= as general damages for the trespass on the suitland."' - 6. The Defendant pays costs of the suit. - **7.** The amount in (5) above shall attract interest at Court rate of 6% per annum form the date ofJudgment until payment in full.

GIVEN under my hand and the seal of this Honourbale Court this 2015. day of

REGISTRAR

**^3** Exiracted\_b£; 4-b Hoopla Kisozi House(Anncx) Kisozi Closc(Off Kyaggwe Rd) PO Box 12386. Kampala Uganda, Tel: \*256 41 425029 Email Web: [www.bnbadvocates.com](http://www.bnbadvocates.com).

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