[2024] UGHCLD 218

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION) CIVIL SUIT NO.0899 OF 2023**

**BUWEMBO OMAR :::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF (Suing through his lawful attorney Ssekalembe Umar)**

### **VERSUS**

**BYAMUKAMA AGGREY :::::::::::::::::::::::::::::::::::: DEFENDANT**

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

# *Introduction;*

- 1. The plaintiff brings this suit seeking declarations and orders inter alia; - a) A declaration that the defendant is a trespasser on part of the suit land measuring 50ft by 50ft on land comprised in Kyadondo Block 167 Plot 1844 land at Mengo -Kiwale Wakiso District measuring 0.832 hectares. - b) A declaration that the plaintiff is the lawful owner of the suit land. - c) An order for removal of the defendant's container on the suit land. - d) A permanent injunction restraining the defendant, and/or his agents from continued acts of trespass.

- e) General & Special Damages. - f) Mense profits and costs of the suit.

# *Background;*

- 2. The plaintiff is the registered proprietor of the suit land comprised in Kyadondo Block 167 Plot 1844 land at Mengo - Kiwale Wakiso District measuring 0.832 hectares having purchased the same in 2008. - 3. The plaintiff has since purchase been in possession and utilization of the same with this family for agriculture without disturbance until 24/09/2022 when the defendant without any claim of right entered onto part of the suit land measuring 50ft by 50ft and placed containers thereon without the consent of the plaintiff. - 4. That in September 2022, the defendant maliciously opened criminal cases against the plaintiff's family members for forgery, obtaining money by false presence and conspiracy vide KMP GEF 189/2022 who were arrested and detained but later released. - 5. That the defendant on 12/09/2022 had also lodged a caveat on the suit land but the same was removed by the Registrar of titles in 2023 for he had no claim on the suit land.

- 6. That the defendant has no claim of right over the suit land and the plaintiff has on several occasions tried to engage him to stop trespassing and remove the containers but all in vain which has frustrated the plaintiff from further developing his land since 2022 for which he shall seek for mesne profits. - 7. That the plaintiff has suffered both physical and mental anguish because of the defendant's unlawful actions of trespass thus entitling him to claim general and special damages. - 8. All efforts to involve the defendant in these proceedings proved futile, Court ordered for substituted service to publish the summons in Monitor/New Vision newspapers which was done on 1/2/2024 but still, the defendant did not file a defence thus the matter proceeded exparte against the defendant under Order 9 rule 20 of the Civil Procedure Rules.

# **Plaintiffs' evidence**

9. The plaintiff produced two witnesses, **PW1-BUWEMBO OMAR and PW2- SSEKALEMBE UMAR,** who gave evidence by witness statements which stated briefly as below;

# *PW1 Buwembo Omar*

- i) That I am the lawful owner /registered proprietor of the suit property comprised on Kyadondo Block 167 Plot 1844 land at Mengo -Kiwale Wakiso District measuring 0.832 hectares. - ii) That I purchased the suit property in the year 2008 and immediately took possession of the same by using it for agriculture together with my family with no disturbance whatsoever from anyone until the Defendant without any claim of right and my consent on 24th September 2022 entered part of the suit land measuring 50ft by 50ft and placed thereon containers of about 50ft where upon he was reported at police. - iii)That I later learnt that the defendant lodged a caveat on my land on 12th September, 2022 with the aim of frustrating me from using my land on the allegation that he had bought the suit land which was not true. - iv) That I also learnt that the defendant had been defrauded by some impersonator who fraudulently sold the suit land to him thereby allowing him to utilize the land which was not right as he was not the owner of the same and because of that I was also forced to lodge a caveat on the suit land to protect my interests from the defendant and the impersonators.

- v) That in September 2022 as I was away, the Defendant further maliciously opened criminal cases against my siblings; Sekalembe Umar, Muhammed Kafeero, Nambooze Asia and my wife; Faridah Nanteza Buwembo for forgery, obtaining money by false pretense and conspiracy vide KMP GEF189/2022 and they were arrested and detained for some days after which they were released on police bond and later the files were closed for lack of incriminating evidence against them. - vi) That because of the defendant's caveat, I applied to the Registrar of Titles Kyadondo for the same to be lapsed/ removed as the defendant had no genuine cause over my land. - vii) That I and the defendant were invited to the Registrar of Titles- Wakiso where upon I presented my Certificate of Title and the defendant presented his Certificate of Title which he had obtained from the impersonators where upon his Certificate of Title was confiscated by the Registrar as it was not authentic but forged. The defendant's caveat was removed.

- viii) That the defendant accepted before the Registrar of Titles in my presence that he had been conned by other persons not myself nor my family members and he also undertook to remove the containers from my land but later refused. - ix)That the defendant has no claim of right over my suit land and on several occasions I together with my donee have told him to stop trespassing by removing the containers from my land but all in vain - x) That because of that I was also forced to lodge a caveat on the suit land to protect my interests from the defendant and the impersonators. - xi)That the defendant's containers have been on my land since 24th September 2022, and this has frustrated me from further developing the same for which I pray for mesne profits of UGX 10,000,000/= (Ten Million Shillings Only) and an order for removal of the defendant's containers from my land. - xii) That because of the defendant's refusal to remove the containers and lodgement of the caveat on my land, I have also suffered both physical and mental anguish for which I pray for general and special damages from court.

#### *PW2 – Sekalembe Umar*

- i) That the plaintiff is the owner of land comprised in Kyadondo Block 167 Plot 1844 land at Mengo -Kiwale Wakiso District measuring 0.832 hectares having purchased the same in 2008, took possession using the same for agriculture. - ii) That on 24th September 2022, the defendant without any claim of right entered onto the same and placed containers of about 50ft and we later discovered that he had lodged a caveat on the suit land as well. - iii)That my self and the plaintiff learnt that the defendant had been defrauded by some impersonator who called him self the plaintiff and fraudulently sold part of the suit land to the defendant which forced the plaintiff to lodge a caveat on the same to protect his interest from the defendant and the impersonator. - iv) That in September 2022, while the plaintiff was away, the defendant opened malicious criminal cases against myself and my siblings plus the plaintiff's wife and we were arrested, later released on police bond after which the file was later closed for lack of incriminating evidence.

v) The defendant had agreed to remove the containers after he found out he had been conned but he later refused which has frustrated the plaintiff from further developing the suit land for which the plaintiff prays for general and special damages.

# **Locus Proceedings**

- 10. On 11/6/2024, Court visited Locus at Nakwero, Kiwale Zone in Wakiso District. Court established that the suit land is registered in the names of Buwembo Omar. It was further established that Defendant bought after the plaintiff had bought. He proceeded to the LC1 Chairman after he had purchased and the LC1 informed him how he was defrauded. At the time the defendant brought the containers, the plaintiff had sweet potatoes on the land. The defendant just placed the containers and went away. - 11. The LC1 Chairperson informed Court that the Plaintiff is the one who owns the land as he has always known him as the purchaser and doesn't know from who the defendant purchased. However, he once went to his office and informed him how he was defrauded but never heard from him since then.

## *Representation;*

12. At the hearing, the plaintiff was represented by Counsel Nantongo Rehma of M/S Kazungu, Kakooza, Alinaitwe & Co Advocates while the defendant was unrepresented as he did not participate in these proceedings.

## *Issues for determination*

The plaintiff filed a scheduling memorandum and written submissions and raised the following issues for determination by this Honourable Court;

## **i) Whether the Defendant is a trespasser on the suit land?**

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

## *Analysis and determination of the issues;*

- **I. Whether the Defendant is a trespasser on the suit land?** - 14. Counsel for the plaintiff in her submissions relies on the authority of **Justine E. M. N Lutaaya v Sterling Civil Engineering Co. SCCA No. 11 of 2002** to define trespass and the authority of **Sheik Muhammad Lubowa v Kitara Enterprises ltd CA No. 04 of 1987 EACA** which lays down the grounds to prove in order to succeed in a claim for trespass. - 15. Trespass to land occurs when a person makes an unauthorized entry upon land and thereby interfering or portends to interfere with another person's lawful possession of that land. **(See Justine E. M. N Lutaaya v Sterling Civil Engineering Co. SCCA No. 11 of 2002)** - 16. In an action for trespass, the following must be proved; - i) That the disputed land belongs to the plaintiff - ii) That the defendant had entered upon it, - iii)That the 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.

# **(See Shiekh Muhammed Lubowa v Kitara Enterprises limited CA No. 4 of 1987)**

17. I shall proceed to qualify all the above elements to rule out whether the defendants are actually trespassers on the suit land.

### **i) That the disputed land belongs to the plaintiff.**

18. Counsel for the plaintiff relies on the provisions of Section 59 of the Registration of Titles Act which is to the effect that certificate to be conclusive evidence of ownership. The plaintiff states under paragraphs 2 of his witness statement that he is

the registered proprietor of the suit land comprised in Kyadondo Block 167 Plot 1844 at Mengo Kiwale in Wakiso District measuring 0.832 hectares and his evidence was collaborated by that of PW2.

19. Furthermore, the plaintiff adduced evidence to wit, a certificate of title and a search report which were exhibited and marked PEX2 and PEX11 respectively, in further proof of ownership of the suit land thus this ingredient is proved.

#### **ii) That the defendant had entered upon it,**

- 20. On the 24th/9/2022, the defendant without any claim of right and consent from the plaintiff entered onto part of the suit land measuring 50ft by 50ft and placed thereon containers of about 50ft and also lodged a caveat on the plaintiff's land on allegations that he had bought the suit land however the same was lapsed by the Registrar of titles. The plaintiff adduced pictures of the suit land showing the containers thereon which were exhibited and marked PEX3. - 21. When Court visited Locus the said containers were found on part of the suit land and the LC1 Chairperson informed Court that the defendant brought and left the said containers on the

suit land which is clear proof that the defendant indeed entered on the suit land.

- **iii) 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.** - 22. The plaintiff states under paragraph 4 of his Witness statement that on the 24th/9/2022, the defendant without any claim of right and consent from the plaintiff entered onto part of the suit land measuring 50ft by 50ft and placed thereon containers of about 50ft which forced the plaintiff to open up a criminal case. Additionally, the defendant also lodged a caveat on the plaintiff's land on allegations that he had bought the suit land however the same was lapsed by the Registrar of titles. - 23. When Court visited Locus the said containers were found on part of the suit land and the LC1 Chairperson informed Court that the defendant brought and left the said containers on the suit land. - 24. The plaintiff further stated that he and PW2 tried to engage the defendant to remove his containers as he had never sold the suit land and that the defendant had been conned.

25. It is quite clear that the defendant's entry onto the suit property was un authorized and it only brings this Court to a conclusion that the defendant trespassed onto the suit land.

## **Whether the plaintiff is entitled to any of the remedies sought?**

*26.* The plaintiff sought various remedies to wit; a declaration that the defendant is a trespasser on the suit land, a declaration that the plaintiff is the lawful owner of the suit land, an order for removal of the defendant's containers on the suit land, a permanent injunction, general and special damages, mesne profits and costs of the suit.

#### *Mesne Profits*

- 27. Section 2 (m) of the Civil Procedure Act defines mesne profits as those profits which the person in wrongful possession of the property actually received or might with ordinary diligence have received or might with ordinary diligence have received from it, together with interest on those profits, but shall not include profits due to improvements made by the person in wrongful possession. - 28. The defendant only dumped containers on the suit land and did not do anything further. A clear scrutiny of the plaintiff's

evidence and I find no evidence of the profits which the defendant received out of the suit land. In the premises, I find that the evidence on record does not sufficiently justify a claim for mesne profits. I therefore disallow the said claim.

#### **Special Damages**

- *29.* The plaintiff prayed for the following damages (special), search fees and transport to and from land office Ugshs 300,000/=, Application for removal of the caveat and the necessary facilitation for the lawyers for the same work Ughs 4,000,000/=, Legal fees to represent the plaintiff's family members in the criminal case vide KMP GEF 198/2022 at police commenced by the defendant Ughs10,000,000, transport to and from police on several occasions Ughs 2,000,000/= which totals up to a tune of Ughs 16,300,000/=. - *30.* The guiding principle is that special damages must be specifically pleaded and strictly proved. **(See W. M. Kyambadde**

#### **v Mpigi District Administrator (1984) HCB)**

*31.* The plaintiff adduced receipts exhibited and marked as PEX9 and PEX10 dated 27/09/2022 for legal fees of Ug shs 400,000/=, 25/01/2023 for caveat lodgment and power of attorney of Ug shs 990,000/=, 08/10/2023 for legal fees of Ug

shs 2,730,000/= and an invoice of Ug shs 9,000,000/= which totals up to a tune of Ug shs 10,663,000/= .

*32.* Therefore, Court will only grant Ughs 10,663,000 since the said amount is what the plaintiff has been able to prove.

#### *General Damages*

- 33. Damages are pecuniary recompense given by the process of law to a person for the actionable wrong that another has done to him. **(Vol. 12 Halsbury's laws, 4th Edition Paragraph 1202)** - 34. The law on general damages is that the damages are awarded at the discretion of the Court and the purpose is to restore the aggrieved person to the position they would have been in had the breach or wrong not occurred. **(Hadley v Baxendale (1894)**

**9 Exch 341).** Thus damages are compensatory in nature.

- 35. The plaintiff states under paragraph 8 of his witness statement which evidence is corroborated by that of PW2 still under paragraph 8 that his siblings including PW2 were arrested at the behest of the defendant, the defendant lodged a caveat on the plaintiff's land for which he incurred a cost while having the same removed. - 36. The plaintiff further states that his efforts to develop the suit land have been frustrated by the defendant who placed

containers thereon and he refused to remove them. All the above acts have inconvenienced the plaintiff and as well as disturb his quite use and enjoyment of his land which justifies the award of general damages.

- 37. In the premises this court awards ughs 8,000,000 as general damages at an interest rate of 10% per annum from the date of this judgement until payment in full against the defendants - 38. The plaintiff also sought for a declaration that the plaintiff is the lawful owner of the suit land however this Court declines to declare the same since this is a suit of trespass and not recovery of land thus the same is inconsequential.

For the foregoing reasons, I proceed to pronounce judgement and decree for the plaintiff against the defendant as follows;

- i) A declaration that the defendant is a trespasser on land comprised in Kyadondo Block 167 Plot 1844 land at Mengo -Kiwale Wakiso District measuring 0.832 hectares. - ii) An order for the removal of the defendant's containers from the suit land. - iii)A permanent injunction doth issue restraining the defendant and his agents from doing any further acts of trespass.

iv) General damages of Ug shs. 8,000,000 at an interest rate of 10% per annum from the date of this judgement until payment in full against the defendant

v) Special damages of Ug shs 10,663,000/=

vi) Costs of the suit awarded to the plaintiff.

**I SO ORDER**.

### **NALUZZE AISHA BATALA Ag-JUDGE 09/09/2024.**

**Delivered on the 9th of September 2024 via ECCMIS.**