[1997] UGHC 7

#### THE REPUBLIC OF UGANDA

#### iH THF H?GH COURT OF UGANDA AT KAMPALA

#### CiVIL SUIT 957/93

# JAMES KAYIMBYE SEBINENE MUSAJJALUMBWA.w PLAINTIFF VERSUS

1. HON. PAULO KAWANGA SSEHOGERERE 2. ROBERT B. K. SEBUNYA ....................... ^> DEFENDANTS ........ )

#### BEFORE; THE HONOURABLE LADY JUSTICE C. K. BYAM UGl SHA.

#### JUDGMENT

representation action filed by James Kayimbye Sebinene Musajjalumbwa against Paulo Semogerere who is said to have been the chairman of the Committee which was organising the coronation of Ssabat&ka Ronald Mutebi as the Kabaka of BUganda at the time when the acts complained of are alleged to have occurred. The second defendant was sued as the secretary of the said committee. The defendants were sued personally as the people who caused or loss suffered by the plaintiff and secondly registered proprietor of the land situated at NaUimenyc, Gombolola Sabagabo, Busiro County, Mpigi District, comprised in Block 347 Plot 79. This is a directed the cause of the representatively for all the members of the said committee. The plaintiff is the

The main thrust of the plaintiff's cause of action is contained in the following paragraphs of the plaint.

"8 During the month of June 1993, the defendants and all members of the committee for the coronation of the Kabaka ot Buganda employed people to repair the roads leading to the coronation site at Naggatabi - Buddo.

- ⁹ In the course of the repairs of the roads the defendants and the mem bens ot the coronation committee instructed and/or caused the people who were repairing the roads to go to the plaintiff's said land and excavate and carry away murrain Tor the repair of the roads. - "¹⁰ The people repairing the roads went to the plaintiff'^s land and excavated and carried away murraw without the plaintiff's knowledge and consent. - "11 The plaintiff contends that the entry of the people on his land followed by excavation and carrying away of his murrain amounted to trespass and violation of his fundamental right over his land and were'W-rongful and occasional loss and damage to the plaintiff. - " 12 The murram excavated and carried away was valued and assessed at the sum of shs. 5,049,000/=. A copy of the valuation is annexed hereto and C" and will be referred to at the trial for its full content meaning and effect" marked "

in ^a joint written statement of defence the defendants specifically denied the allegations levelled against them in the above paragraphs. They also denied that that the murrain used on the roads leading to Naggafabi was freely and voluntarily offered exgratia. They denied that they are vicariously liable. the plaintiff was in possession of the land. In the alternative it was contended

At the commencement of the trial, the following issues were framed for court's determination.

whether the plaintiff is the registered proprietor of the land comprised in (1) Block 347 plot 79;

(2) whether murrain was actually excavated from the land;

(3) whether he consented to the extraction of the murram.

(.4) whether the defendants are Hable.

(5) whether the plaintiff is entitled to any remedy if any.

**In an** attempt to prove the allegations in the plaint, the plaintiff adduced the testimony of three witnesses including himself. His testimony was that he is the registered proprietor of the land in question which has been used by his brother Sekamwa OP. W.3) to cultivate and other crops. In June 1993 he received a message from Sekamwa that the land had been trespassed upon and some murrain excavated. He came from Mbale to check on what was going on. He found that murrain had indeed been excavated and there was ^a huge heap of it and ^a huge hole where murrain had been excavated. There was nobody around andon tracing the brother, the latter told him that the murram was being taken by people who were preparing for the crowning of the Kabaka (King) of Buganda. After being told that the witness went to look for ^a valuer to value the damage caused on the land. The valuer Balaba-Tamale (P. W.2) came to the site and later prepared ^a report. He reiterated that he did not give permission to anyone to excavate the murram. murram. Later the witness received a letter brought by his brother asking for

(

The second witness was Tamale-Balaba a valuation Surveyor who testified that on 237'06 ⁷⁹³ the plaintiff came to his ofhoe seeking advice about the murram which had been excavated from his land. The witness visited the site and took measurement of the affected area and computed the value of the murram which had

cross-examination the witness stated that when he visited the site he interviewed the local council ¹ chairman, the neighbours and the actual people who were **⁰⁵** excavating. The last witness for the plaintiff was Sekamwa the brother of the to the land and found two people with ^a tractor excavating murram. He asked them who had given them the land and he was informed that members of the committee The witness told them to 10 The men stopped excavating and started carrying away the murram they had excavated. He reported the matter to the Local Council 111 chairman how his murram had been cultivating the land. **¹⁵** working at Nagalabi told them to excavate the murran. plaintiff and the one who was looking after the land. Sometime in June, he came excavated without permission. He concluded his testimony by stating that he was been excavated which was 420 cubic metres. He made a report (exh. P.3). Under stop excavating until he gets confirmation from the owner.

The defence called six witnesses to counter - the allegations of the plaintiff. The first witness was the second defendant Robert Sebunya who testified that in June ¹⁹⁹³ ^a committee was formed for the coronation of the Kabak ^a of BUganda and he was the secretar ^y of the sub-com mittee responsible for the construction of the **²⁰** ^a lot of enthusiasm from the people and many of them offered murram free of charge. He did not know the plaintiff or his brother but agreed that he was the author of the letter dated 17/06/93 (exhibit P"1). He explained that he wrote the letter because during the preparations his sub-com mittee used to meet weekly to **²⁵** Sendegeya (D. W.3) reported that Sekamwa wanted to assist the committee in the rehabilitation programme and that there was murram which could be used for that roads leading to the coronation site at Nagalabi. The witness stated that there was review the progress and during one of the meetings ^a certain gentleman murram which was already dug. He deu.ecithat murran was excavated and taken. purpose. Sendegeya reported that Sekamwa needed a letter requesting for the

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He also stated that the area in question has been dug from the time he began seeing it in the 70s. He concluded his testimony by stating that the committee did not pay for any murram because people gave it voluntarily.

The second witness was Hikairi Sendegeya who testified that he knew the **05** plaintiff and his brother Sekamwa as his villagemate. He was on the committee at Naggalabi and he approached Sebunya (. D. W.1) and informed him that there was someone who had murram dug for use on the road from Kata ^m bo to Naggalabi. The owner of the murram was Sekamwa (P. W.3) and he had approached the witness and ¹⁰ informed him thatthe murrum was available and all he needed was to approach the owner and request him to allow the committee to use it. Sekamwa suggested that they should write ^a letter and this was done. The witness took the letterand gave it to Sekam wa. The witness further stated that no murram was taken from this area and it is still there and it is being used ny people who wantto repair roads a practice which has been going on since 1958. **15**

The third witness Kintu the local council ¹¹ chairman and ^a member of the construction committee. He testified that he knew the land which Sekamwa looks denied that any murram was removed from this area in 1993 and as Local Council *20* Chairman, he did not receive any complaints from anyone. after and murram has been excavated from it for repair of roads since 1958. He

The first defendant also testified and stated that he was the chairman of the co-ordinating committee for the coronation of the Kabak ^a which took place in July 1993. He further stated that some murrain must have been used for the repairs of **25** roads but it was given free as ^a result of extensive appeals the committee made. He denied knowledge of the plaintiffs murram or receiving any complaint from

him.

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The last witness was Oyomako a consultant in Gringo & Company Consulting Valuation Surveyors. He testified that on 15/12/95 his firm was instructed by M/S Kawanga & Kasule Advocates to inspect property in Busiro. He went to the site in company of Sekamwa and Kasuie. Retook measurements and made ^a report (exhibit 0.1). According to the witness the land was used as ^a murrain quarry and there side there was an excavation which might have taken place about eight years ago. On the right hand side there was ^a more recent excavation which could have taken place about five were two stages of excavation which he saw. On the left hand years back. There was a heap of murram of about 2 tipper lorries.

After the summary of the testimony given by both parties, ^I think there is no dispute that the plaintiff is the registered proprietor of the land described in these proceedings. The first issue will be answered in the affirmative. As to whether murram was extracted, there is evidence to prove this. Baiaba Tamale (P. W.2) stated in his testimony that when he visited the site to carry out valuation not find out their names. P. W.1 stated that when he came he found that murram had been extracted but it was still there. P. W.3on his part stated that the people he found excavating murram told him that they had been sent by the committee from Naggalabi D. W.6 stated in his report that he found a heap of murram about two tipper lorries. There was also evidence from the defence that the area has **²⁵** been ^a murram quarry for ^a considerable period of time. among the people he interviewed there were those who were excavating. He did

Both counsel made submissions on this issue. Counsel for the plaintiff submitted that there is evidence that murram was excavated. He relied on the oral testimony and the letter (exhibit P.1) written by Sebunya. On the otherhand, counsel for the defendants submitted that the plaintiff has failed to establish who carried out the excavation and that the plaintiff was not in possession of the land

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in question at the time of the alleged trespass. He also pointed out that the area in question has been ^a murram quarry and it has not been used for agriculture as claimed by the plaintiff.

Trespass to land is an act of entering upon another persons land without Tawful authority. In order to bring an action in trespass to land the person bringing the action must be in actual possession because trespass is interference the land is the one entitled to sue for trespass. **10** with possession and not ownership. So the person who is in physical control of

In the instant case, the plaintiff in his testimony stated that his brother Sekamwa uses the land to grow crops. It can therefore be said that he has of the plaintiff. ^I think goes in some way toexplain why the letter written by the **15** second defendant was addressed to Sekamwa. The testimony of Sendegeya to the effect that Sekamwa was willing to offer murram from the land but all he needed was ^a letter of request, although denied by him appear to represent the truth. Therefore ^I tend to agree with the submissions of counsel forthe defendants that the plaintiff has not proved that he was in possession of the land in question or 20 quo, there was no visible signs of agriculture. The expert witnesses in this case, P. W.2 found people excavating murram at the time of his visit and D. W.6 stated that this area in question appeared to be ^a murram quarry. that he was using the same for agriculture. When the court visited the locus in possession of the land and not the plaintiff. This lack of possession on the part

^E ven if ^I accept the plaintiff's version that the land was being used for agriculture by his brother, he did not establish the identity of the people who told him that they were doing so on behalf of the committee O; something to that excavated the murram. Sekamwa found people excavating murram and they merely

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effect. The testimony given by the defence is that the com-sUttee did not use the plaintiff's murrain. All they did was to write ^a letter based on information given **05** by Sendegeya and when they failed to get According to the testimony of both defendants, the committee consisted of volunteers and people contributed materials on ^a voluntary basis. In such circumstances it is possible that some enthusiastic subjects of the Kabaka who wanted to take part in the preparations of the crowning of their King could have gone to the plaintiff's land to excavate mu ream without the ^k now ledge or approval of the com mittee. The plaintiff himself made no effort to contact the committee and verify the story given to him by Sekamwa. a reply they left the matter at that.

During his submissions counsel forthe plaintiff laid ^a lot of emphasis on the letter the circumstances under which the letter was written were ably explained by **15** Sendegeya and Sebunya and ^I believe them on this point. (exhibit P.1) to show that the committee was responsible for the excavation. But

But even if the court was to accept that murrain was excavated without the consent of the plaintiff, there appears to have been contradictory evidence as what 20 area was allegedly excavated by the defendant'#s committee. When P. W.2 visited the site to take measurements he found people excavating. The measurements he took, apparently included the area they were excavating. Sekamwa claimed that the murran excavated by the defendant's committee was taken but the testimony of the plaintiff was to the effect that when he came from when he visited the site. There is no evidence as to who had excavated this ^ particular murrain. It is therefore my finding that the plaintiff has not proved on by the defendants or the people they had employed. It was not even proved that the people who excavated the murrain were employed by ano therefore servants a balance of probabilities that the acts of trespass complained of were committed Mbale. the murrain was still there. D. W.6 also found ² tipper lorries of murram

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of the defendants. At most they appear to have been volunteers who would be personally liable for the torts committed. The plaintiff has failed to prove his case⁵ and it will be dismissed with costs to the defendants.

The claim of special damages of the valuation report and fees of shs. 100,000/= was strictly proved. ^I would have awarded it. The value of the murrain extracted was put at **¹⁰** damages are at large. ^I would have awarded him minimal damages of 100,000/= and have been entitled to the taxed costs of the suit. Suit stand dismissed with costs. In the event of a successful appeal, ^I shall assess the damages. about ⁵ million but ^I would have reduced this figure to shs. 4,000,000/=. General interest at court rate from the date of judgment till payment in full. He would

( \ \* . r C. K. BYWlJGISHA (Mrs)

Judge 11/02/97

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## -70 - REPUBLIC *OF* UGANDA

IK THE HIGH COURT OF UGANDA AT KAMPALA

### CIVIL SUIT NO.957 OF *1^95*

• JMIES KAYIMBYE SEBINENE MUSAJJALUMBA : ^t : : PLAINTIFF : ¹

VERSUS

: : : DEFENDANTS HON. P. K. SSEMOGERERE ROBERT B,K. SEDUNYA ^X *t*

#### DECREE IN ORIGINAL SUIT

**LADY** further presence of R. K, Kasule\* Counsel for This Suit Coming on for final disposal **before** JUSTICE C,K, BYAMUGISHA in the presence of Ms NKWANGA **holding** a brief for P. AYIGIHUGU Counsel for the Plaintiff **and** in **the** the Defendants\*

IT IS HEREBY ORDERED and DECREED that the Plaintiff's **suit** be and is hereby dismissed.

IT IS FURTHER ORDERED that the Plaintiff DOES pay costs of the suit to the First and Second Defendants®

DATED and SEALED with the SEAL of Court this Seven, this Honourable a 11th day of February? Niliet^en Hundred and Ninety

REGISTRAR

APPROVEDS

for:AYlGIIlUtrtLA>ND \pOMPANY ADV(;CATES FOR PLAINTIFF

kasul^Jf^-^ E DEFENDANTS for fl/S. KAWANGA ANJI ADVOCATES FOR T1

APPROVED'

DRAWN AND FILED BY ^I MESSRS,KAWANGA AND KASULE\* ADVOCATES ⁱ ⁵ PLOT 28 \* LUtfUM STREET\* P. O. DOX 216, KAMPALA.

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