[2024] UGHC 1185

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MPIGI CIVIL SUIT NO. 62 OF 2020

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MUGERA HERMAN JOSEPH.................................... **VERSUS** SEMASOKE GEORGE DEFENDANT BEFORE: HIS LORDSHIP HON. JUSTICE OYUKO ANTHONY OJOK Judgment Brief background: The plaintiff brought this suit against the defendant claiming for; an eviction order from 2 acres of the land comprised in Block 124 Plot No. 48 land at Namutamala Mawokota District, general damages for trespass, interest and costs of the suit.

It is the Plaintiff's case that he is the registered proprietor of the suit land comprised in Block No.124 Plot No.48 Land at Namutamala in Mawokota, Mpigi District measuring approximately 13 acres and has been in possession of the same having inherited it from his late father Augustine Majwanganya.

That the Defendant, who owns a kibanja interest on the suit land measuring approximately 3 acres, stealthily encroached and or trespassed on the Plaintiff's land by a further 2 acres without the Plaintiff's knowledge, consent or approval and commenced cultivation of crops on the same. The Plaintiff did notify the Defendant on several occasions to peacefully vacate the extent of the said land to which he was trespassing but to no avail.

The Plaintiff engaged the services of a surveyor to conduct a boundary opening to 30 verify the extent of trespass on the suit land by the Defendant and it was established that the total area occupied by the Defendant is 5.0 acres, 2 acres of which are occupied by the Defendant illegally having trespassed on the same.

## Representation:

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Counsel Ayebare Samuel appeared for the plaintiff, the matter proceeded exparte 35 as against the defendant. The plaintiff filed written submissions.

# Issues for determination:

- 1. Whether the Defendant trespassed on the suit land? - 2. What are the remedies available to the Plaintiff?

#### Resolution:

# Issue 1: Whether the defendant trespassed on the suit land?

Counsel quoted the case of Justine E. M. N. Lutaaya v. Stirling Civil Engineering Company Ltd, SCCA No.11 of 2002 at Page 6-7, where court 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."

And, Tayebwa Geoffrey v. Kagimu Ngudde Mustafa, H. C. C. S No. 118 of 2012 at **Page 6-7,** where court observed that;

"In order to succeed in this case, the Court of Appeal in Sheikh Muhammed Lubowa v. Kitara Enterprises Ltd CA No. 4 of 1987, observed that one must prove;

- *That the disputed land belonged to the Plaintiff.* - *That the Defendant had entered upon it, and* - 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.*

Counsel submitted that the Plaintiff testified that he is the administrator and beneficiary of the estate of his father Augustine Mujwanganya and the registered proprietor of land comprised in Block No.124 Plot No.48 Land at Namutamala in Mawokota District measuring approximately 13 acres whose certificate of title was tendered in court.

Additionally, that the Defendant, who has a kibanja interest on the suit land measuring 3 acres, encroached on the suit land by 2 acres without the plaintiff's 30 consent, commenced cultivation of crops thereon and cut down the plaintiff's trees which was reported to Police. Effort to amicably resolve the dispute has been futile. That it was also confirmed by the Surveyors whose findings indicated that the Defendant had trespassed on the suit land by a further 2 acres of land and that the Defendant was occupying 5.0 acres instead of 3 acres. The Survey report was 35 tendered in and marked as PEx5, it indicates that the defendant is unlawfully occupying the 2 acres which belong to the Plaintiff. Thus, the Defendant has encroached on the 2 acres and the said encroachment is illegal.

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I have carefully considered the plaintiff's evidence, exhibits as tendered in court and the submissions together with the authorities cited therein in resolve issue 1 as hereunder.

Sections 101 and 102 of the Evidence Act provide that the burden of proof rests on $\mathsf{S}$ whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts to prove that those facts exist of who would fail if no evidence is adduced at all. Therefore, the plaintiff bears the burden to prove his or her case on the balance of probabilities.

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Section 103 of the Evidence Act is to the effect that the party who alleges the existence of a set of facts to prove such facts, it provides thus; the burden of proof as to any particular facts lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

In the case of **Sebuliba v. Co-operative Bank Ltd.** [1982] HCB 129, court while considering the above sections held that; the burden of proof in civil proceedings lies upon the person who alleges, therefore, to prove the alleged trespass, the burden of proof was squarely on the plaintiff.

In the instant case the plaintiff stated that he is the registered proprietor of the suit land comprised in Block No.124 Plot No.48 Land at Namutamala in Mawokota District having got it as a beneficiary of his late father's Augustine Mujwanganya estate. That he is also an administrator of the said estate measuring approximately 13 acres whose certificate of title he tendered in court.

The defendant is said to have encroached on 2 acres which form part of the suit land and this was confirmed through the survey report that was also tendered in court. Trespass is said to occur when a person unlawfully enters onto the property 30 of another without their consent as is in this case. (See: Justine E. M. N. Lutaaya v. Stirling Civil Engineering Company Ltd. (Supra)

During the locus in quo visit, court found that the defendant had encroached on 2 acres out of the 13 acres belonging to the plaintiff. He had planted a banana 35 plantation, cassava, and built a house thereon. Court also observed the cut tree trunks of the eucalyptus trees which the defendant destroyed that belonged to the plaintiff and the boundary marks that were removed.

I hereby find that the defendant is a trespasser on the suit land having entered on 40 the same without the plaintiff's consent. This issue is resolved in the affirmative.

## Issue 2: what are the remedies available to the plaintiff?

The plaintiff prayed for an order of eviction or delivery of immediate vacant possession of the 2 acres against the Defendant, a permanent injunction against the Defendant, his agents, servants and all those close to him refraining them from trespassing on 2 acres of the suit land.

In regard to general damages counsel for the plaintiff submitted that the Defendant contemplated that the Plaintiff would suffer loss by trespassing on his land thus obtained unfair advantage using the suit land without the Plaintiff's knowledge. consent or approval. That the Plaintiff in this case testified that as a result of the Defendant's actions, he has suffered untold mental anguish and unnecessary inconvenience due to the defendant's actions. Counsel quoted the case of Denis Desire Mitti v. Patrick Ssewagude & 3 Others, (Civil Suit No.449 OF 2016) [2019] **at Page 7** where court observed that:

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"In the case of Takya Kushwahiri & Another versus Kajonyu Denis CACA" 85 of 2011 it was held that general damages should be compensatory in nature in that they should restore some satisfaction as far as money can do it to the injured Plaintiff.

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In Uganda Commercial Bank versus Kigozi [2002] 1 EA 35, Court gave *guidance on how to assess the quantum of damages that;* "the consideration should mainly be the value of the subject matter, the economic inconvenience that a party may have been put through and the *nature and extent of the breach or injury suffered".*

That the learned Judge awarded general damages of UGX $75,000,000/$ = where the value of the land as per the purchase Agreement was UGX 105,000,000/ $=$ .

And, in the instant case, the value of the 2 acres is also around UGX $105,000,000/$ = as of today. Counsel prayed for an award of general damages of $UGX$ 75,000,000/=.

It is my considered view that whereas the plaintiff has suffered mental anguish and inconvenience due to the acts of the defendant, it is trite law that in exercising the discretion to grant general damages, court should not punish the defendant for breach but, rather put the plaintiff in the position he or she was prior to the breach complained of. (See: Boschcon Civil and Electrical Construction Co. (U) Ltd v.

Salini Construttiri Spa, H. C. C. S No. 151 of 2008).

I find an award of the UGX $75,000,000/$ in general damages excessive in this case and there is no justification to award the same. Whereas, counsel cited an authority that awarded UGX $75,000,000/$ = for property worth UGX $105,000,000/$ ; in this case there was no proof of the current market value of the

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suit land and I am still inclined to that fact that UGX $75,000,000/$ = is on the higher end. I find an award of UGX 20,000,000/ $=$ in this case sufficient for an award of general damages.

In regard to cost counsel cited **Section 27 Civil Procedure Act** which is to the effect $\mathsf{S}$ that costs are at the discretion of court and that costs shall follow the event unless court or the judge shall for good reason otherwise order and the case of **Uganda** Development Bank v. Muganga Construction Company (1981), H. C. B 35, where it was held that Costs should follow the event unless for some good reason the court orders otherwise. $10$

That in the instant case, the Plaintiff sued the Defendant for trespass to land and the Plaintiff' evidence is unchallenged. That the Plaintiff took all the necessary steps to recover his land and this is enough to justify the award of costs.

The plaintiff in this case has proved his case on a balance of probabilities as against the defendant. Judgment is hereby, entered in favour of the plaintiff in the following terms;

- 1. An eviction order from 2 acres of the land comprised in Block 124 Plot No. 48 land at Namutamala Mawokota District. - 2. A permanent injunction against the Defendant, his agents, servants and all those close to him refraining them from trespassing on 2 acres of the suit land doth issue. - 3. General damages for trespass of UGX 20,000,000/= are awarded to the plaintiff. - 4. Costs of the suit are awarded to the plaintiff.

I so order. Right of appeal.

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OYUKO ANTHONY OJOK **JUDGE** 01/10/2024

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