[2025] UGHCCD 31

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA AT KAMPALA**

**(CIVIL DIVISION)**

**CIVIL SUIT NO. 278 OF 2020**

**ADMAN SOURCE & CONTACTS LIMITED ::::::::::::::::::::::::::::: PLAINTIFF**

**VERSUS**

**NATIONAL WATER & SEWERAGE CORPORATION ::::::: DEFENDANT**

**BEFORE: HON. JUSTICE SSEKAANA MUSA**

**JUDGMENT**

The plaintiff’s claim against the defendant was for a declaration that the defendant’s removal of the plaintiff’s billboard from land comprised in Block 216 Plot 2597 at Ntinda , Kampala without prior and adequate compensation was illegal, an order for special damages of UGX: 324,000,000/= , general, exemplary and aggravated damages, interest thereon and costs of the suit.

The defendant approached the plaintiff for permission to remove and replace the plaintiff’s billboard at Block 216 Plot 2597 at Ntinda, Kampala on which it was contracted for and placed advertisements for Total Uganda Limited, to enable the defendant lay pipes and other hardware in the ground and requested a quotation for the same.

That the plaintiff sent the defendant a quotation of UGX. 256,000,000/= for the costs of removal and replacement of the same and negotiations began and without any notice and/or compensation or the plaintiff’s consent, the defendant unilaterally removed the plaintiff’s billboard at the same site, destroyed and relocated its material to an undisclosed location and sent no communication since. The plaintiff was shocked by this action and engaged the defendant’s officials notifying them of its intention to sue if compensation was not done to no avail.

The defendant, a statutory corporation under the laws of Uganda, filed its written statement of defence wherein it denied all the plaintiff’s claim and contended that in the month of October, 2019, the defendant requested the plaintiff to avail a quotation for the removal and reinstatement of their billboards which were allegedly owned by the plaintiff. The plaintiff responded to the defendant by providing a quotation of UGX. 100,000,000/= and which they were requested to provide a breakdown of the same and never did despite several reminders.

That the plaintiff was to avail proof of ownership of the billboards or any legal basis on which they were erected. And while the defendant awaited a feedback from the plaintiff, the defendant was informed by Kironde Godfrey M, Kalanzi Gidion M, Sarah Mutola M and Nazziwa Margret M (“the proprietors”) who own land comprised in Kyadondo Block 216 Plot 3722 at Buye and where the plaintiff’s billboard is situate.

The proprietors advised and communicated to the defendant that they had already exercised their right of re-entry as against the plaintiff and thus rendering the plaintiff a trespasser on their land hence the defendant having compensated the proprietors fully, went ahead to compulsorily acquire and use the relevant portion of the proprietor’s land.

The court directed the parties to file a joint scheduling memorandum wherein they agreed to the following agreed facts, issues and documents.

***Agreed facts.***

1. The plaintiff is a limited liability company registered under the laws of Uganda in the business of outdoor advertising by erection of billboards on private property on agreement with land owners among others. 2. The defendant is a statutory corporation under the laws of Uganda. 3. The defendant approached the plaintiff for permission to remove and replace the plaintiff’s billboard on the said land to enable the defendant lay pipes and other hardware in the ground and requested a quotation for the same.

***Agreed issues for determination.***

1. *Whether the defendant’s removal of the plaintiff’s billboard from land comprised in Block 216 plot 2597 at Ntinda without prior and adequate compensation was lawful?* 2. *Whether the defendant is liable to pay UGX. 324,000,000/= in special damages to the plaintiff?* 3. *What remedies are available to the parties?*

The plaintiff was represented by *counsel Simon Tendo* while *counsel Mwebesa Raymond* for the defendant.

**DETERMINATION.**

***Whether the Defendant’s removal of the Plaintiff’s billboard from land comprised in Block 216 plot 2597 at Ntinda without prior and adequate compensation was lawful?***

The plaintiff’s counsel submitted that the defendant’s removal of the plaintiff’s billboard from land comprised in Block 216 Plot 2597 at Ntinda, Kampala without prior and adequate compensation was unlawful.

That the law on compulsory land acquisition is well settled by the 1995 Constitution of the Republic of Uganda under Article 26(2) which states that;

*“No person shall be compulsorily deprived of property or any interest in or right over property of any description except where; taking of possession or acquisition is necessary for public use or in the interest of defence, public safety, public order, public morality or public health, the compulsory taking of possession or acquisition of property is made under a law which makes provision for acquiring people’s property, without prior prompt payment of fair and adequate compensation prior to the taking of possession of the property.”*

While relying on ***Rashida & Anor v Adrisi (Miscellaneous Civil Application No. 0009 of 2017) [2017] UGHCLD 29 (23 March 2017),*** Counsel stated that *Justice Stephen Mubiru in dealing with the meaning of the word “shall “stated that, “the use of the word “shall” prima facie makes that requirement mandatory.”*

Counsel submitted that therefore, this makes it mandatory for the Government to promptly pay fair and adequate compensation prior to compulsory acquisition of people’s property.

Counsel further submitted that the defendant admitted that it’s a statutory corporation at paragraph 2 of its Written Statement of Defence and also admitted at paragraph 5 of its WSD that removing the plaintiff’s billboards was in execution of the Kampala Water-Lake Victoria Watsan Project to improve water supply and promote public health. This therefore shows that the actions of the defendant being a government entity were done in public interest.

That the term “interest in property” is well defined in the **7th Edition of the Black’s Law** **Dictionary at page 816** to mean, *“the legally enforceable right to possess or use property.”*

Counsel submitted that the plaintiff entered a tenancy agreement with her landlord at Block 216 Plot 2597 at Ntinda, Kampala on 21st March, 2018 for the purpose of erecting billboards to which she paid a two-year advance and proceeded to erect 3 faced billboards on the same property. That these actions by the plaintiff guaranteed her proprietary interest in the suit property and rights over the same.

While referring to the witness statements by PW1 and PW2, counsel stated that the defendant unilaterally removed the plaintiff’s billboard at the suit property, relocated the property and has sent no communication since and it was confirmed when the plaintiff through PW1 sought the services of Dasurvey Consult and PW2 who carried out a location survey of the former billboard, which survey confirmed the former position of the billboard to be located on Plot 2597 Block 216.

In support of his submissions, counsel cited the decision in *UEB v STEPHEN SANYA, CACA 1/2000*, in which the appellant was held liable for erecting HV lines in the respondent’s land before compensating him, **TWINOMUJUNI,J** at page 8 paragraph 1 lines 4 to 7 stated that,

“*Under the provisions of Article 26 of the Constitution, Uganda Electricity Board or anyone else has no right to enter anyone’s property and interfere with the owners right to such property unless conditions laid down in that article are first met.”*

Plaintiff’s counsel finally submitted that the actions of the defendant removing, destroying and causing the billboards of the plaintiff to disappear without prior prompt, fair and adequate compensation constituted an illegality.

The defendant counsel in his reply, submitted that the plaintiff has failed to prove that its billboard was located on land comprised in Block 216 Plot 2597. counsel raised an issue of;

*whether the billboard in issue was located on land comprised in Block 216 Plot 2597?*

Counsel submitted that it’s the defendant’s case that the registered proprietors of Block 216 Plot 3722 on which the billboard was sitting told the defendant that they had already exercised their right of re-entry as against the plaintiff thus rendering the plaintiff a trespasser on their land. Because of this, the defendant having compensated the registered proprietors fully with a sum of UGX. 32,240,000/-, went ahead to only and exclusively compensate them for the compulsorily acquisition of their land and not the plaintiff.

That the defendant cannot therefore be subjected to double payment. Any claims the Plaintiff has are only as against the said registered proprietors (Kironde Godfrey M, Kalanzi Gidion M, Sarah Mutola M and Nazziwa Margret Mutoola).

Counsel stated that the plaintiff relied on PW2 who was presented as an expert witness that is a land surveyor to confirm and ascertain the location of the exact billboard and PW2 testified that by the time he conducted the survey to confirm the location of the billboard, the billboard was no longer in existence. He testified that he used google image search to see where the billboard was located.in his report, P. EX.9, he stated that the former billboard was located in front of the Corner View Hotel.

That, PW2 did not provide any scientific evidence, as is conventionally accepted in the profession of land surveyors to ascertain exact location. Counsel cited the case of **Odwong Joseph Ogoro & Anor versus Morris Latigo & Anor, HCCA 061 of 2018 at page 11 para 25,** where he stated that the court established the method of survey that was acceptable and which a court of law could safely rely upon thus;

*“The Universal Transverse Mercator is a system for assisting coordinates to locations on the surface of the earth. It is a horizontal position representation, which ignores altitude and treats the earth as a perfect ellipsoid. Under that system, distances measured manually in the field yield ground coordinates whose points are marked by survey mark-stones.”*

That therefore PW2 having not provided the above in detail, he ought to have demonstrated the above while at the locus visit but he did not apart from PW2 pointing to where the billboard was located. Therefore, PW2’s findings did not pass *“the rigid test of accuracy and authenticity as should be determined by precision instruments duly verified by accredited surveyors.”* As stated in **Odwongo Joseph Ogoro & Anor versus Morris Latigo & Anor, HCCA 061 of 2018 at page 12 para 26.**

Further submitted that, however, assuming this court finds that the plaintiff’s billboard was located on the land comprised in Block 216 Plot 2597, the defendant acted on the mistaken belief that it was dealing with the rightful landlord of the plaintiff when it paid the compensation sums of UGX. 32,240,000 to the registered proprietors of Block 216 Plot 3722 (Kironde Godfrey M, Kalanzi Gidion M, Sarah Mutola M and Nazziwa Margret Mutoola) where the billboard was believed to be situate instead of paying this money to the plaintiff.

That this is clearly borne out from the Defendant’s WSD when it pleaded that the payment of monies over to the landlords was premised on their information that they as the landlords and duly registered proprietors of the land, had exercised their right of re-entry as against the plaintiff thus rendering him a trespasser on their land. That D. EX.6 which is proof of payment of the compensation sums is evidence of this mistaken belief and further proof that the defendant acted bona fide with the intention to pay the fair and adequate compensation. This is further borne out by D. EX.7 and D. EX.8 which prove that the expert opinion which was given to the Defendant at the time indicated that the billboard was located on Block 216 Plot 3722.

That the mistake is also borne out by P. EX.9 which indicated that these two plots of land were neighboring each and only separated by a similar border line. That the billboard was at the edge of Block 216 Plot 2597 very close to the neighboring Block 216 Plot 3722 thus creating this confusion.

Counsel concluded that P. EX.7, D. EX.1 and D. EX.2 are further proof of the Defendant’s good faith and good intentions to compensate the plaintiff save for the intervening factor of the registered proprietors. And the defendant’s removal of the plaintiff’s billboard from land comprised in Block 216 Plot 2597 at Ntinda was lawful because it was carried out on the mistaken belief that it was dealing with the rightful owner of the suit land. And that **Section 59 of the Registration of Titles Act** expressly provides that registered proprietors are the conclusive owners of the land.

***Analysis.***

The foundation of an action for trespass to land is possession and to maintain trespass against a wrongdoer it is not necessary that the plaintiff’s possession is lawful. Anyone who is in possession or is deemed to have been in possession at the time of the trespass can bring an action for trespass. Trespass is unjustified intrusion by one person upon land in possession (actual or constructive) of another.

Trespass as a tort is a violation of the right to possession and the plaintiff must show that he has the right to immediate and exclusive possession of the right which is different from ownership. A complaint or claim of trespass however connotes interference with or injury to possession.

In order to establish a tortious action in trespass to land, the plaintiff must show that;

1. The defendant committed an act of interference with the plaintiff’s land; 2. The act was voluntary and direct; and 3. The land was in the possession of the plaintiff.

The plaintiff must be a person who has possession of the land at the time of trespass. The plaintiff’s acts of enjoyment of the land constituted prima facie evidence of possession. The rightful plaintiff may include an owner of the land, a tenant having exclusive possession, an owner with equitable interest and exclusive possession of the land and in, exceptional circumstances, a person with no proprietary interest over the land but who has exclusive occupation of the premises.

The plaintiff’s claim is for trespass by the defendant removing his bill board over the suit land without her consent. The Supreme Court in the case of ***Justine E. M. N. Lutaaya vs Sterling Civil Engineering Co. SCCA No.11 of 2002*** held that trespass to land occurs when a person makes an unauthorised entry upon the land, and thereby interferes, or portends to interfere, with another person’s lawful possession of that land. The Court further noted that the tort of trespass is committed not against the land, but against the person who is in actual or constructive possession of the land.

The plaintiff was in possession of this portion of land with permission of the registered proprietor to erect or install a bill board. The registered proprietor Mr Kiwanuka granted permission to the plaintiff for space rental for billboard at plot 25/97 old Kira road opposite Total oil station Ntinda on Y-junction to Kinawataka. The plaintiff was in lawful possession of the piece of land where the billboard was erected for the time there was a subsistent agreement (licence) to use the piece of land.

The defendant was under a mistaken belief that the land belonged to different persons who had claimed that they had re-entered the land and were indeed compensated. The said land was quite different although it may be nearby or adjoining to the land on which the plaintiff had erected his bill board.

This court is duty bound to consider the totality of evidence lead by each of the parties. The assessment of the said evidence makes the plaintiff’s evidence more credible than the defendant on possession and occupation of the land in issue and the mistaken belief of defendant. This has given this court a reasoned belief of the evidence of the plaintiff or a reasoned preference of his version to the defendant. ***See Adesina v Ojo (2012) 10 NWLR p.552***

The defendant’s removal of the plaintiff’s billboard from land comprised in Block 216 plot 2597 at Ntinda without prior and adequate compensation was unlawful.

***Whether the Defendant is liable to pay UGX. 324,000,000/= in special damages to the Plaintiff?***

The plaintiff’s counsel submitted that the law on special damages was well settled in the case **of Gapco (U) Ltd v A. S. Transporters (U) Ltd CACA No. 18/2024** where *G. M. Okello JSC at page 11 paragraph 4 lines 1 to 6 stated that,*

*“Special damages must be specifically pleaded and proved, but that strictly proving does not mean that proof must always be documentary evidence. Special damages can also be proved by direct evidence; for example, by evidence of a person who received or paid or testimonies of experts conversant with the matters.”*

That as a result of the defendant unilaterally removing and destroying the plaintiff’s billboard at Block 216 Plot 2597 at Ntinda to which the plaintiff was a lawful tenant, the plaintiff lost a billboard whose purchase value is **UGX. 170,000,000/=.**

The plaintiff’s counsel contended that as a result of the unlawful conduct of the defendant in destroying the plaintiff’s billboards, the plaintiff lost its advertising contract with Total Uganda Ltd that had granted the Plaintiff UGX. 2,000,000 revenue per faced billboard per month for a period of 2 years and five months which equated to UGX. 154,000,000/-.

Further submitted that the plaintiff having suffered wrong as a result of the defendant must be put back in the position they were in before the wrongful act and therefore pray to this court to grant the plaintiff special damages of **UGX. 324,000,000/=** for the losses incurred as a result of the defendant’s actions.

Defendant’s counsel in his reply stated that the plaintiff claimed special damages under two heads namely; the first claim for special damages was UGX.154,000,000 being revenue loss of Total (U) Limited advertising contract and the second claim for special damages was UGX.170,000,000 being the purchase price of the billboard.

That the loss of revenue/income is premised on P. EX.4 which is a service level agreement dated 15th January, 2020 and being the date when it was entered into, the agreement was to run for a total period of 1 year. That under clause 4 of P. EX.4, Specifically the table indicated thereon, the billboard being in Ntinda indicates that Total Uganda Limited was to pay only UGX. 2,000,000/- per month for the 3 faced billboards in issue located in Ntinda. This means that the revenue to be earned from this specific billboard for the 1 year contractual period was UGX. 24,000,000/- only.

That the 2 million shillings per month and which is payable for the billboard in issue is clearly stipulated in P. EX.4 to be for the entire billboard and not for each face of a billboard. The law under **Section 91 of the Evidence** Act mandates a court of law not to allow any other form of evidence where terms of an agreement have been reduced into the form of a document. P. EX.4 is clear and unambiguous needing no extrinsic evidence.

Defendant counsel further submitted that had it been true that Total Uganda Limited was paying the plaintiff 2 million shillings per face per billboard for the 3 face billboard which converts to 6 million per month, the agreement (P. EX.4) would have clearly stated so or at least the plaintiff would have presented evidence of payment for the first two quarters showing how much he was paid on this billboard or any other billboards in the agreement or evidence of the duly presented invoices.

That clause 5(a) of the agreement P. EX.4 states that Total Uganda Limited was to pay the Plaintiff the rent in 4 quarterly instalments. A study of the email correspondences in P. EX.7 goes to show that by July, 2020, the billboard in issue had been removed yet. This is clearly indicated in P. EX.5 which is a picture of the billboard taken on 25th January, 2020 proving this. Particularly the email of PW1 dated ‘Friday, July 10, 2020 at 12 :12pm shows that in July, 2020, the billboard had not yet been affected or rather it was still intact. The pictures presented by the Plaintiff indicate that the billboard was removed on 28th July, 2020.

Counsel stated that the plaintiff entered into this agreement well aware of the impending works of the defendant. D. EX.1 is a letter dated 10th October 2019, written by the defendant’s contractor to the plaintiff about the works to be carried on and the Plaintiff responded to the defendant in its letter dated 20th October, 2019.

In respect of the claim for special damages of UGX. 170,000,000/-, counsel for the defendant stated that as far as this claim is concerned, P. EX.1 which is the agreement against which the plaintiff bought billboard indicates that he paid UGX. 170,000,000/- on 8th July, 2016. The billboard was affected after 28th July, 2020 which is over 4 years later. That the plaintiff did not present proof that the value of the billboard was still worth UGX. 170,000,000/- and that it had not been affected either by depreciation or appreciation. The plaintiff ought to have adduced scientific expert evidence of a property valuer to prove the value of the billboard at the time of its being affected.

Furthermore, P. EX.2 seems to suggest that the plaintiff also started to pay for rent at the suit land where the billboard is sitting on 21st March, 2018 yet it was purchased in 2016 about 2 years prior. Since under P. EX.2 the rent payable was 4 million per year, it would mean that if 8 million being the rent payable for 2 years from 8th July, 2016 to 21st March, 2018, the value of the second hand billboard alone was Ugx 162,000,000 at the time of purchase on 8th July,2016.

Counsel therefore submitted that the plaintiff having failed to prove the value of the billboard in 2020 renders his claim for the billboard’s purchase price entirely void and un-awardable by this court.

***Analysis***

The power to award damages by the trial court is exercised in the circumstances of a judicious estimation of the loss to the victim once the breach or injury has been established. Special damages must be strictly proved meaning that evidence adduced on their proof must show particularity in accordance with the pleadings, and the claim must also be based upon precise calculation as to enable the defendant access facts which makes such calculation. Therefore, special damages are damages that are alleged to have been sustained in the circumstances of a particular wrong which must be specifically claimed and proved to be awardable.

The *ipse dixit* (that is, evidence of plaintiff) *simpliciter* led in proof special damages must be comprehensive and credible; and it must incorporate all the relevant conditions required in proof of special damages. Where various items are claimed under special damages, the plaintiff is entitled to be awarded any of the items which he could prove with sufficient evidence, even if he is not able to prove other or all the items.

They must cover tangible harm that can easily be translated into monetary terms. The burden of proof as mentioned earlier; rests on that person who would fail if no evidence is adduced to prove an alleged fact. Special damages being compensatory, the plaintiff has the burden to adduce evidence proving them. In a case where there is loss of earnings, the plaintiff must adduce evidence of the lost earnings. Strict proof is not restricted to documentary evidence only and in some cases, evidence of a person who received or paid or testimonies of experts conversant with matters of the claim can suffice. See; ***Stanbic Bank Uganda Ltd vs Sekalega Civil Suit No. 18 of 2009*.**

The plaintiff lumped a sum of 324,000,000/= which was broken down as purchase value of billboard is 170,000,000/= and revenue value of 2,000,000/= per month for a period of 2 years and five months which was equated at 154,000,000/=.

The plaintiff’s claim as special damages are creative imaginations of a loss and not specific loss with particulars and there is no breakdown of how it ought to have been lost. The project was anticipated to take 90 days (3months) and the plaintiff was at liberty to reinstate his billboard and continue earning from the contract. The plaintiff has now computed the loss at 29 months-2 years 5 months and this speculative without any basis.

The plaintiff has failed to prove the claim for the loss categorized as special damages in his claim and the same is denied

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

***General Damages***

The principle of assessment of damages for breach or injury or loss generally is *restituo in integrum;* that is the plaintiff should be restored as far as money can do it, to the correct position he would have been had the breach, loss or injury, damage not occurred. The court has discretion as to the quantum of damages it would award in a claim of damages. The assessment does not depend on any legal rules, but the discretion of the court is however limited by usual caution or prudence and remoteness of damage when considering the award of damages.

In awarding general damages, the court would simply be guided by the opinion and judgment of a reasonable man in determining what sum of money will be reasonably awarded in the circumstances of the case. General damages are losses which flow naturally from the defendant’s act. Therefore, general damages are damages which the law implies and presumes to have accrued from the wrong complained of or as the immediate, direct and proximate result, or the necessary result of the wrong complained of.

The courts rely on common sense to guide decisions as well as whether any alleged breaches are a sufficiently substantial cause of the loss. HHJ Wilcox said in the case of ***Great Eastern Hotel Co Ltd v John Laing Construction Ltd & Anor [2005] EWHC 181***: The courts have avoided laying down any formal test for causation. They have relied on common sense to guide decisions as to whether a breach of contract is a sufficiently substantial cause of the Claimants’ loss. The answer to whether the breach is the cause of the loss, or merely the occasion for loss must “in the end” depend on “the court’s common sense” in interpreting the facts.

The purpose of damages is to put the plaintiff back into the same financial position as he would have been in but for the breach, wrong or damage or injury. The purpose of damages is not to punish the defendant but to compensate the plaintiff/claimant.

I find that these actions were of great inconvenience to the plaintiff and caused the plaintiff suffer damage financially and to the company. I, therefore, find the award of **UGX 40,000,000** as fairly adequate sufficient general damages (compensation) to put the plaintiff in the position she would have been had the billboard not been removed to install water pipes underneath.

I decline to award aggravated damages and Exemplary damages since the plaintiff never lead any evidence to justify their award.

The plaintiff is awarded interest at 20% from the date of Judgment and costs of the suit.

I so Order

***Ssekaana Musa***

***Judge***

***Delivered by the Registrar this………………..of February 2025***