[2025] UGHCCD 35

**THE REPUBLIC OF UGANDA**

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

**[CIVIL DIVISION]**

**CIVIL SUIT NO 272 OF 2021**

**JUSTICE ANUP SINGH CHOUDRY :::::::::::::::::::::::::::::PLAINTIFF**

**VERSUS**

**UMEME LIMITED :::::::::::::::::::::::::::::::::::::::::::::::::::::::: DEFENDANTS**

**BEFORE: HON. JUSTICE SSEKAANA MUSA**

**JUDGMENT**

The plaintiff brought a summary suit against the defendant procedure to recover a liquidated sum of 117,700,000/= (Uganda Shillings One Hundred Seventeen Million Seven Hundred Thousand only), interest and costs for the suit.

The Plaintiff is the leasehold owner of the property situate at Plot 1 Nambi Road Entebbe which he purchased in September 2008 from the previous owner Vincent Zirimwabagabo. The previous owner obtained the Lease over the property from Mpigi District Land Board in April 2003. There was no electricity pole between 2003 and 2008 on the land as encumbrance. The electricity pole and wires were instilled by the defendants after 2008 and there was no agreement to the same between the parties.

The Defendant’s contended that at the time of the electricity pole instillation, Uganda Electricity Board (UEB) was licensed to distribute electricity in Uganda. In 2005, Umeme Ltd, the Defendant entered in to a concession with the government of Uganda to distribute electricity.

The Defendant argued that the evidence, shows that UEB installed an electric pole with 3 phase voltage wires on the suit property.

The grounds in support of the claim are briefly set out in the affidavit in support sworn by **JUSTICE ANUP SINGH CHOUDRY** contending that; The defendant is an authorized distributer of electricity in Uganda who in contravention of their statutory duty not to act in a manner which is dangerous and reckless to the consumers, installed an electricity pole with 3 phase electric voltage wires for electricity distribution which is unlawful in residential premises. Despite several requests verbally, the defendant did not respond.

In 2015, the plaintiff decided charge a fee of 955,000/= per month as a license fees for the installation of the pole. In 2017, this license fee was increased to 2 million shillings per month. Since 2015, the defendant has made no attempt to settle the invoices which continues to incur interest at 25% per annum. He therefore prayed the court enter the judgement in the liquidated sum of 117,700,000 shillings.

However, following the orders that were granted on 8th August 2022 in the application for setting aside the default Judgement, the defendant was granted unconditional leave to appear and defend. The defendant filed its defence wherein it denied all allegations made against it and contended that it was neither aware nor in receipt of any complaint filed by the plaintiff as claimed. The defendant did not erect or install any electricity pole with 3 phase electric voltage wires at the plaintiff’s premises.

It further contended that the impugned electric pole and wires were erected /installed by the defendant’s predecessor and the same has been on the land for over 10 years. At the time the plaintiff acquired the suit property, the electricity pole and the 3 phase voltage wires were in existence, argued that the plaintiff purchased, and /or obtained the suit property subject to all the encumbrances on and over the same, including the power supply lines.

The defendant further contended that the pole poses no health threat to the land owner or member of the land owner’s family and contended that the defendant and plaintiff have never entered in to any agreement for payment of any rent/license fees as claimed. As such the plaintiff is not entitled to recover any fees.

In response to the written statement of defence by the Plaintiff. The plaintiff contended the pole is a property of the electricity providers and there is no wayleaves agreement with the owners of the since 2003 and any such encumbrance on the title deeds. He averred that the defendant is therefore a trespasser on the land directly or through their predecessors until a license was given pending removal of the pole subject to payment of license fees.

Issue

The following issues were raised by the parties for determination by this court.

1. *Whether the defendant is a trespasser on the Plaintiff’s land.* 2. *Whether the Plaintiff is entitled to the remedies Sought.*

**Representation**

The plaintiff was represented himself whereas the defendant was represented by Ms. Murungi Janet.

The plaintiff lead evidence of 4 witnesses while the defendant led evidence of one witness. The parties were directed to file written submissions and same were considered by this court.

***Summary of evidence***

The plaintiff filed four witness statements, including that of the Plaintiff’s as PWI, Robert Peter Oikoba, PWII, Ahabwe Dan PWIII, and Anebo Amutuhairwe PWIV.

PW1, stated that the defendant’s lawyers confirmed during the hearing on 12th June 2023 that defendants’ predecessors were UEB which in was dissolved in 1999 and UEB did not exist when the plaintiff purchased the property in 2008. Hence the defendants’ predecessors did not install the 3-phase pole. He also stated that he lodged a complaint with the defendant on 29th July 2014, to shift the wires as they were passing along the house and further on 3rd August 2016 to the then legal service manager Susan Bukenya who assured him that necessary action will be taken.

PWII stated that in 2011, the premises never had a pole with 3 Phase power lines. However sometime around 2014, he saw the defendant’s agents come to the compound and installed a new pole with 3 phase power supply. Subsequently over the years from 2015 to 2022, they have suffered the agony of Electric Arc Blasts which were threatening and dangerous to life and property.

DW1, the Manager, survey and Way Leaves with the Defendant Company, stated that the 3 phase lines existed on the suit property by the time the plaintiff acquired title to the same from a one Vincent Zirimwabagabo and therefore the plaintiff purchased the suit property well aware of the existence of the 3 phase electricity lines. The Defendant contended that it did not enter into any agreement whether oral or written whatsoever for payment of any rent/license fee. As such, the Defendant doesn’t admit liability to pay the amount of Uganda Shillings One Hundred and Seventeen Million Seven Hundred Thousand in rental arrears.

**Determination**

***Whether the Defendants is a trespasser on the Plaintiff’s land.***

Counsel for the plaintiff referred to the case of *Justice E. M. N Lutaaya Vs Stirling Civil Engineering Company Civil Appeal No.11 of 2002* to defined trespass to land as follows:

*“Trespass to land occurs when a person makes an authorized entry upon land and there by interferes, or portends to interfere, with another person’s lawful possession of that land”.*

The Plaintiff submitted that Section 67(1) of the Electricity Act Cap 145, (hereinafter referred to as the Act) provides that a licensee authorized by the authority either generally or on a particular occasion may place and maintain electric supply lines in, over or upon any land and for that purpose it shall be lawful, upon written authorization by the authority, for the licensee or his or her representative. He further cited section 67 (1) (d) and (4) of the Act. He further submitted that while considering the issue of upgrading in electric Supply by Umeme, the court in *Mugerwa Sulaiti vs Umeme Limited Civil Suit No 86 of 2012* cited with approval the ruling in *Umeme Ltd vs Sonko & Anor Misc. Applic. No. 025 of 2013* it was held that where the defendant’s agents did not enter the suit land for purposes of repair and maintenance but to improve or upgrade power supply, and the Plaintiff had not been given the statutory 60 days‟ notice, then the entry was unlawful and amounted to trespass. The court considered upgrading as an exercise involving the removal of whatever existing lines or poles and construction of new and more powerful ones. In their correct view, such an exercise required the consent of the respondent (as the land owner) under the Electricity Act.

The Plaintiff argued that he is the proprietor of leasehold title PE4 comprised in LRV3084 Folio 11 Plot 1 Nambi road which he purchased from one Vincent Zirimwabagabo in 2008 where upon he entered into the possession of the suit land till date.

The plaintiff noted that when he entered into possession of the suit land, there was only one electric pole with a single line for domestic supply which was corroborated with the testimony of PW2 and the same was maintained at the cross examination of both witnesses, but this was subsequently substituted/ upgraded in 2014 by the Defendant through its agents who entered the suit property and cut it down or chopped the single phase pole and they replaced it with a 3 phase power line pole without any way leave agreement signed or consent from the plaintiff and neither did the defences produce a copy of the 60 days mandatory notice for the same purported repair of the rotten pole. DW1 admitted that it true a pole was changed. This amounted to trespass PE3 is a picture showing the pole which was cut down adjacent to a new one.

The defendant vehemently denied to have installed the impugned 3 phase pole with electric voltage wires at the plaintiff premises and further submitted that the same pole was installed by their predecessors UEDCL and that the same has been on the land for over 10 years. They further alleged that the plaintiff acquired the suit property with the 3 phase voltage wires.

Counsel for plaintiff contended that these averments were tainted with falsehoods and only intended to mislead the court since they were tailed as a measure to hide away from justice, on cross examination of DW1 gave hearsay evidence that the power line was constructed by UEB in 1956, no evidence was advance to support such statement. The Plaintiff therefore invited the court to find this hearsay evidence misleading since it was not substantiated by any document or corroborated.

The plaintiff submitted it was the testimony of PW5 Mr. Semudde Henry; the Architect that, no authority can approve a plan to build structures under a power line especially the high voltages like the 3 Phase power line like in the instant case

In response, the defendant argued while relying on the case of *Odyek Alex and Anor V Gena Yokonani & 4 Ors Civil Appeal 0009 of 2017* where Justice Stephen Mubiru elaborated on the cause of action in trespass where wile relying on *Salmond and Heuston on the Law of Torts, 9th edition (London: Sweet & Maxwell, (1987) 46*, noted that trespass to land occurs when a person directly enters upon land in possession of another without permission and remains upon the land, places or projects any object to)on the land.

She further submitted that the tort of trespass is therefore proved by showing evidence that a party entered onto another’s land unauthorized. The Plaintiff has to prove that they owned the land and that the entry of the Defendant was unlawful in that it was made without permission or that the Defendant had no claim or right or interest in the disputed land.

Counsel for the defendant submitted that DW1 led evidence to show that the electricity pole was erected on the suit property by its predecessor UEB. That DEx l was tendered as an application form for the immediate neighboring plot to the Plaintiff's suit property under the Defendant's predecessor. She submitted that serves to show that there existed an electricity connection before the Plaintiff purchased the suit property from Vicent Zirimwabagabo. That it was not in dispute that the electricity connection existed following the Plaintiff's admission during cross examination that there was a connection though with a single phase.

The defendant’s counsel relied on section 70 of the Electricity Act (as amended) for the limitation of time for lodging claims with the Authority within one year. He stated that the Plaintiff alleges that the Phase 3 power lines were erected in 2014. However, the present suit was lodged in 2023, nearly nine years after the erection of the power lines. This exceeds the one-year limitation period for lodging claims as provided under Section 70(2). She further stated that there is no evidence of an application for extension of time, nor sufficient reasons provided to justify the delay.

Counsel submitted that it is notable that at common law easements could be utilized even without the consent of the serviette tenement owner and cited the notable decision in *Stewart Gawaya Tegule versus KCCA & Anthony Mulindwa Civil Suit No. 214 of 2011*. She further submitted that for the Plaintiff to come up over l5 years later to claim unpaid license fees is abhorrent and that his claim is barred by the statutory limitation period under Section 70 of the Electricity Act. Furthermore, the land was acquired with a pre-existing easement, eliminating any basis for compensation.

She therefore submitted that accordingly, the Plaintiff's claim is untenable and should be dismissed.

***Analysis***

It is the defendant’s submission it did not erect or install any electricity pole with 3 phase electric wires at the plaintiff's premises. The impugned electric pole and wires were erected/ installed by the defendant's predecessor. At the time the Plaintiff purchased and/or obtained the suit property, the electricity pole and the 3-phase voltage wire were in existence.

In the leading case of trespass ***Justine E. M. N Lutaaya vs Stirling Civil Engineering Company Civil Appeal No.11 OF 2002 (SC***) it was held that;

*“Trespass to land occurs when a person makes an unauthorized entry upon land and thereby interferes, or portends to interfere with another person’s lawful possession of that land. Needless to say, the tort of trespass to land is committed, not against the land, but against the person who is in actual or constructive possession of the land. At common law, the cardinal rule is that only a person in possession of the land has capacity to sue in trespass’’*

On the other hand, *Section 67(1) of the Electricity Act* Cap 157 as revised, (hereinafter referred to as the Act) provides that;

*” a licensee authorized by the authority either generally or on a particular occasion may place and maintain electric supply lines in, over or upon any land and for that purpose it shall be lawful, upon written authorization by the authority, for the licensee or his or her representative*.

*d)* *To perform any activity necessary for the purpose of establishing, constructing, repairing, improving, examining, altering or removing an electric supply line, or for performing any other activity under this Act. (Section 67 (1) (d))*

According **to Section 67(4)** it states that;

*“A licensee shall except for maintenance or repair of an electric supply line, before entering any private land for the purposes specified under sub section (1), give sixty days’ Notice to the owner of the land , stating as fully and accurately as possible the nature and extend of the acts intended to be done.”*

This court in the case of ***Umeme Ltd vs Sonko & Anor Miscellaneous Application No. 025 of 2013***, court found that where the defendant’s agents did not enter the suit land for purposes of repair and maintenance but to improve or upgrade power supply, and the plaintiff had not been given the statutory 60 days’ notice, then the entry was unlawful and amounted to trespass. The court considered ‘upgrading ‘as an exercise involving the removal of whatever existing lines or poles and construction of new and more powerful ones. In their correct view, such an exercise required the consent of the respondent (as the land owner) under the Electricity Act.

From the evidence on the court record, it is clear that the plaintiff entered into the suit property in 2008 when the defendant had taken on the mandate of UEDCL, his predecessor to supply electricity. It is also clear from the evidence that the defendant installed the 3-phase pole in the plaintiff’s premises. However, the defendant did not adduce any evidence of a consent from the plaintiff for the installation and neither did it adduce any evidence of giving notice of entry onto the suit property as to installation of the 3-phase pole. At no time was the Plaintiff given a 60 days’ notice for the proposed upgrade or replacement as required by the statute when they cut off the single-phase pole and replaced it with a high voltage pole which is hazardous to the plaintiff and the persons occupying the premises.

According to the evidence from both parties, the Defendant’s actions of installing a three-phase line without the plaintiff’s consent. The law requires 60 days’ notice or the plaintiff’s consent constituted an unauthorized interference with the plaintiff’s lawful possession of the land which thereby amounts to trespass under the law.

With the evidence adduced, this court is therefore satisfied that the plaintiff is in actual possession of the suit land and it is also true that the defendant entered the said land and connected installed 3 phase line pole without the consent from the plaintiff or giving him the requisite notice under the law.

I therefore find that issue one is answered in the affirmative.

***What are the available remedies?***

The plaintiff submitted that the continued occupation of the 3-phase high voltage pole since 2014 implied a contract between the parties therefore the defendant is liable to clearing or paying all the outstanding invoices and further general damages for loss of rent for the period of 2015-2017 at a rate of Ugx. 955, 000 per and rent from 2018 to 2024 at Ugx. 2,000,000/= amounting to Ugx. 168,000,000/=. He therefore sought a total sum of Ugx. 190,920,000/=. The plaintiff further submitted that an award of general damages is at the discretion of court in respect of what the law, presumes to be the natural and probable consequence of the defendant’s act. The plaintiff further claimed for punitive damages.

***Analysis***

The plaintiff claims that the defendant owes him rent of Ugx 168,000,000 but he has not adduced any proof and/ or concrete explanation as to how the said sums are arrived at. The Plaintiff seeks for special damages based on a proposal for rent under a lease which was never agreed upon between the parties.

It is important to note that special damages relate to past loss calculable at the date of trial and encompass past expenses and loss of earning which arise out of special circumstances of a particular case. See: ***Mugabi John vs Attorney General C. S Na. 133 of 2002***.

Furthermore, damages are pecuniary recompense given by process of law to a person for the actionable wrong that another has done to him. See: ***John Kivumbi v Kampala City Council Civil Suit l47l of 2011.*** It is settled law that in awarding general damages. Courts are mainly guided by the value of the subject matter, the economic inconvenience that the innocent party may have been put through and the nature and extent of the breach suffered.

In the circumstances, I am not persuaded by the evidence adduced by the plaintiff for special damages and for any damage caused to him and/ or his neighboring arising out of the defendant’s actions.

Furthermore, ***section 67(l) (c) of the Electricity Act*** gives right to the defendant to cut down any tree or branch which is likely to injure, impede or interfere with an electric supply line. The Plaintiff is therefore not entitled to the sum of Ugx. 9,000,000 as claimed for his avocado tree.

**Punitive damages/ exemplary damages.**

In respect of punitive damages, these are awardable to punish, deter, express outrage of court at the defendant’s egregious, highhanded, malicious, vindictive, oppressive and or malicious conduct. Punitive damages focus on the defendant’s misconduct and not the injury or loss suffered by the plaintiff. They may also be awarded to prevent unjust enrichment.

In the circumstances before this court, there is no evidence whatsoever led by the plaintiff to show that the defendant had acted in an egregious, highhanded, malicious, vindictive, oppressive or malicious manner.

Having found that the defendant trespassed onto the plaintiff’s land, he is therefore awarded general damages of Ugx. 15,000,000/= and costs of this suit.

I so order.

***SSEKAANA MUSA***

***JUDGE***

***This Judgment has been delivered by the Registrar this………day of February 2025***