[2024] UGHCLD 208

# THE REPUBLIC OF UGANDOA

# IN THE HIGH COURT OF UGANDA AT KAMAPALA

#### LAND DIVISION

# CIVIL APPEAL NO. O49 OF 2022

# (ARTSTNG FROM CrVIL SUIT NO. 36 OF 20181

# NASSER ABDU MUKASA ::::::::::::::::::::::::::::::::::::::::::::::: IST APPELLANT MBATUDDE HARRIET 2ND APPELLANT

#### VERSUS

# TEOPISTA NAKYANZI :::::::::::::::::::::::::::::::::::]:::::::::::::::::RESPONDENT

# BEFORE HON. LADY JUSTICE ELIZABETH JANE ALIVIDZA

#### JUDGMENT

#### REPRESENTATION

The Appellants were represented by M/S Lutaakome &Co. Advocates.

The Respondent was represented by Barenzi & Co. Advocates. 15

## INTRODUCTION AND BACKGROUND

This is an Appeal arising from the judgment of Her Worship Basemera Sarah Anne Chief Magistrate delivered on the 1Sth May 2022 at the Chief Magistrate 'Court of Makindye at Makindye.

- The Respondent/ Plaintiff filed Civil Suit No.036 of 2Ol8 against the Appellants/ Defendants seeking declarations that the Appellants/ Defendants are trespassers on land comprised in Kyadondo Block 244 Plot 5051, an order for the removal of the Appeilants/ Defendants structure, general damages and costs of the suit. ?o - The l"t Appellant/ Defendant is the biological son of the 2'd Appellant/ Defendant. Both Appellants/ Defendants occupy Kyadondo Block 244 Plot 4935 land at Kabaiagala that is adjacent to the Respondent/ Plaintifl's land. 25

In the lower Court, the Respondent/Plaintiff contended that the Appellant/ Defendants in the course of developing their piece of land encroached and trespassed on her land by approximately 10 ft.

That the Appellant/Defendants built a portion of their storied building on her land. That the 2"d Appeliant developed the land that she had given to the youth project to put up temporary structures without her consent.

During trial, the following issues were raised;

l. Whether the Defendants are trespassers on the Piaintiff (Respondent) land? 2. Whether the parties are entitled to remedies? 35

At trial, the Appellant adduced the evidence of four witnesses PWl Teopista Nakyanzi, PW2 Simon Karasi, PW3 Augustine Bakulumpangi and PW4 Nakato Catherine while the Respondent adduced the evidence of three witnesses DWl

40 Nasser Abdul Mukasa, DW2 Mbatudde Harriet and DW3 Nakachwa Mbaziira.

From the record, Court intended to visit locus on the 0 i / 12l2O2l . However there is no record that Court visited locus.

The trial Magistrate found in favor of the Respondent' The Appellants then filed this Appeal.

#### 45 GROUNDS OF APPEAL

The Appellants raised nine grounds of Appeal to wit;

¹. The said learned trial Chief Magistrate erred in fact and law when she rejected, without sound reasons, the Appellants' objection to the effect that the Respondent's claim to the suit land having been earlier heard and determined by the L. C. 1 Court of Muzaana Zone, Kabalagala in Makindye Division could not be raised again in another suit under Makindye Civil Suit No: 036 of 2O18 where the subject matter was the same as that one in the earlier decided L. C. 1 Court case.

'/

- 2. Tlne said learned Chief Magistrate erred in fact and law when she failed to find - that the Respondent having earlier fi1ed Makindye Chief Magistrate Court Civil Suit No: 0O4 of 7994 in respect of the suit land (a fact which she admitted before Court) she could not {ile another Makindye C. S No' 036 of 2018 to claim the same suit land. 55 - 3. The said learned trial Chief Magistrate erred in law and fact when she failed to find that by the time the Respondent acquired Mailo interest in the suit land sometime in year 1993, the Appellants were already in lawful possession and occupation of the suit land as Kibanja holders protected by law. 60 - 4. The said learned trial Chief Magistrate erred in fact and iaw when she failed to find that the Appellants as members of the family of late Dezitanta Nakanwagi (who had occupied the suit land since year 1936 and who had passed away in year 2O71) and as beneficiaries to the said deceased's estate had a lawful interest in the suit land and they were entitled to continue having possession and occupation of the suit land even though they had no Letters of Administration to the estate of the said late Deziranla Nakanwagi'

- 70 5. The said learned trial Chief Magistrate erred in fact and law when she failed to find that the Appellants' developments which were outside their titled land at Kyaddondo Block 244 Plot 4935 were on a Kibanja which they were entitled to possess and occupy. - 75 80 6. The said learned trial Chief Magistrate erred in fact and 1aw when she held that the Appeilants had no right to claim interest in late Deziranta Nakanwagi's Kibanja whereas there was uncontroverted evidence which proved that the Appellants were blood relatives of the deceased and throughout their life they had stayed on the said deceased's Kibanja at Kabalagala and they had put up their personal developments thereon with her consent when she was still living, and by the time the Respondent acquired Mailo interest in the suit land in the year 1993 the Appellants had already settled thereon. - 7. The Trial Chief Magistrate erred when she ordered the Appellants to pay to the Respondent a sum of UGX 40,000,000 as compensation for an area of

0I

- 85 land claimed to be measuring 10 feet which the Respondent alieged to have been trespassed upon whereas the said award of UGX 40,000,0OO had not been pleaded and no evidence was adduced to prove that the plot measuring 10 feet was worth UGX 40,000,000. - 8. The learned trial Chief Magistrate erred when she awarded to the Respondent general damages of UGX 7,000,000 whereas the Respondent had not proved that she had incurred any loss for the alleged trespass on 10 feet of land. - 9. The learned trial Chief Magistrate failed to find that the said award of UGX 40,000,000/= and UGX 7,000,000/= were excessive in the circumstances.

95 Before resolving this Appeal, Court takes note of the manner in which the grounds of Appeal have been raised. The position of the law is that a ground of Appeal should be concise, setting forth, under distinct heads the grounds of objection to be appealed from. A ground of Appeal should not be narrative or argumentative.

The law is very clear, Order 43 rule 1 (2)of the Civil Procedure Rules provides;

100 "A memorandum of appeal shall set forth, concisely and under distinct heads, grounds of objection to the decree appealed from uithout anA argument or narratiue and the grounds shall be numbered consecutiuelg."

In the case of National Insurance Corporation us. Pelican Air seruices, Ciuil Appeal No. 15 of2OO3. the Court ofAppeal held that a ground which offended the rules

of Court in as far as how grounds of appeal sha11 be framed should be struck off. In applying theses principles, the grounds in this Appeal flaunt the rules of Court. Some grounds raised are narrative and argumentative and are liable to be struck out. 105

110 I am tempted to struck out most of the grounds. This would be to the detriment of the Appellants being punished for the errors made by Counsel. Therefore for the ends of justice to be met, Court will consider this Appeal on the grounds

N

raised. However, Counsel must desist from raising narrative and argumentative grounds. In future I sha1l penalize Counsel personally with costs.

## DUTY OF 1ST APPELLATE COURT

- 115 It is the duty of the first Appellate Court to give the evidence led by the trial Court, a thorough reevaluation and draw its own conclusion. See the case of Kifamunte Henru u Uqanda (Ciminal Apoeal-1997/ 1O) 119981 UGSC 20 (15 Mau ^I99Bl where it was held thal; 'The first appellate court has a dutg to reuieu the euidence of the case and to reconsider the materials before the tial judge. Tte - L20 Appellate Court must then make up its own mind not disregarding the judgment appealed from but carefullg u-teighing and considering it."

#### SUBMISSIONS

This Court issued directives for parties to file written submissions, both parties filed their respective submissions that I have taken into consideration in determining this Appeal.

From the submissions, the Appellants simultaneously handled grounds 7 and 2 then grounds 3, 4, 5 and 6 then ground 7, 8 and 9. I will use the same approach.

#### RESOLUTION

t25

# Grounds I and ²

- 130 Ground One: The said learned tial Chief Magistrate erred in fact and lanu uhen she rejected, uithout sound reasons, the Appellants' objection to the effect that the Respondent's claim to the suit land houing been earlier Lrcard and determined bg the L. C. 1 Court of Muzaana Zone, Kabalagala in Makindge Diuision could not be raised again in another suit under Mokindge Ciuil Suit No: 036 of 2O18 where - 135 the subject matter was the same os that one in the earlier decided L. C. 1 Court case.

Ground Two: The said learned Chief Magistrate erred in fact and laut when she failed to find that the Respondent hauing earlier filed Makindge Chief Magistrate

740 Court Ciuil Suil I[o: 0O4 of 1994 in respect of tlrc suit land (a fact uhich she admitted before Court) she could not file another Makindge C. S lVo. 036 of 2O18 to claim the same suit land.

145 150 counsel for the Appellants submitted that the trial Magistrate erred in law when she rejected the Appellants' submission that the Respondent's suit had been barred by the doctrine of Res judicata. That at the trial, the Respondent admitted that by the time she took interest in the suit land, she found Deziranta Nakanwagi who was the maternal aunt ofthe second Appellant in possession of the suit land and that she already had Kibanja thereon. That the Respondent admitted that she sued Deziranta Nakanwagi in the L.c 1 court of the area over the suit land but she lost the case. That the Respondent sued Deziranta Nakanwangi in the Chief Magistrates Court of Makindye vide CS No.004 if ¹⁹⁹⁴ but the suit was never concluded.

Counsel for the Appellants further submitted that by 1994, the LCl Court of Muzaana zone, Kabalagla in Makindye division Kampala was a competent Court lawfully established by the Executive committees (Judicial Powers) Act the l"t schedule, that the Court had jurisdiction to hear and determine Bibanja disputes in the area. That the suit was barred by sections 6,7 arld 8 of the civil Procedure Act.

On the other hand, Counsel for the Respondent submitted that the Appellants need to have satisfied court at trial that the issues of trespass in contention by the Appellants onto the suit land had been heard and finally determined by a competent court being the LC 1 court of Muzaana or the chief Magistrates court of Makindye vide Civil Suit No. 04 of 7994 between the same parties or those they claim from. That the pleadings, record of proceedings, judgments should have been attached to their written statement of defence or adduced in evidence. IbU

165 That the Appellants only adduced two letters authored by law firms referencing ^asuit No.4 of 1994 between Teopista Nakyanzi and Deziranta Nakwangi as proof. That there was no evidence of pleadings or judgment in Civil suit No.4 of 1994

or pleadings, record of proceedings and decision ofthe suit before Muzaana LC1 to aid the trial Court in ascertaining whether the issues in contention were determined therefore the evidence on record does not satisfy the statutory requirements for Res judicata set out under Secrion 7 of the Ciuil Procedure Act.

L70

#### Decision of this Court

These two grounds relate to the trial Magistrate having failed to lind that Civii Suit No. 36 ol 20218 is Res judicata.

t75 La u.t on Res judicata

Section 7 of the Ciuil Procedure.4cl provides;

7. Res judicata

No court shall try ang suit or issue in uhich the matter directlg and substantiallg in issue has been directly and substantiallg in issze in a former suit betuteen the

- 180 same parties, or between parties under uhom theg or ang of them claim, litigating under tlrc same title, in a court competent to try tlrc subsequent suit or the suit in which the issue has been subsequentlg raised, and has been heard and finallg decided bg that court. - Section 21O of the Magistrates Court Act prohibits Courts from trying matters between the same persons that had already been finally determined by a Court of competent jurisdiction otherwise litigation would never end as it would be ^a way of vexing individuals and abusing Court process.

In the case of Ponsiano Semakula uersus Susane Maqala & Others, 1993 KALR also cited with approval in the case of Kafeero Sentonoo us Shell (U) Limited ar.d

190 Uqanda Petroleum Co. Ltd CAApp. No.50/20O3lthat; ". . . The test uhetlrcr or not a suit is barred bg res-judicata appears to be that the plaintiff in the second suit trying to bing before the court in another utag and in the form of a neut cause of action, a transaction uthich trc has olreadg put before a court of competent jurisdiction in earlier proceedings and uthich has been adjudicated upon."

u

- ¹⁹⁵ For the doctrine of Res judicata to apply, it must be shown that; - a) There was a former suit between the same parties or their privies, i.e. between the same parties, or between parties under whom they or any of them claim, or parties who claim through each other, litigating under the same title; - 200 b) A final decision on the merits was made in that suit, i.e. after full contest or after affording fair opportunity to the parties to prove their case; - c) By a court of competent jurisdiction, i.e. a court competent to try the suit; and, - d) The fresh suit concerns the same subject matter and parties or their ²⁰⁵ privies, i.e the same matter is in controversy as was directly and substantially in issue in a former suit. (see Ganatra u. Ganatra 12007 ¹ EA 76 and Kaia and another u. Attorneu-General and others [20O51 18A83 at 93 -94).

2LO It is trite law that in determining the applicability of the doctrine of Res judicata, the Court is not concerned with the correctness or otherwise of the earlier judgment. It is important and necessary to establish that the Court that heard and decided the former suit was a Court of competent jurisdiction

The trial Magistrate on page 4 of her judgment disregarded that the suit is Res judicata and stated that; "The defendants haue not prouided ang proof that Ciuil

275 Suit No. 04 of 1994 existed in this court and it utas determined to conclusion. TLte allegation brought by the defendants is unfounded and not backed up bg any euidence..."

I take note that the Appellant's contention that civil suit No.36 of 2O18 is Res judicata is premised on the evidence of the Respondent, who admitted at the trial

220 that she sued Deziranta Nakanwagi in the LC1 Court of the area and in the Chief Magistrates Court of Makindye under Civil suit No. O04 of 1994. She added that this suit was never concluded.

From the record of proceedings, the Respondent in testifying as PWl stated that she sued Deziranla in the Chief Magistrates Court that she never got a judgment in Civil Suit No.4 of 1994 as the case did not end. PW2 Simon Karasi the L. C II Chairperson testified that the Respondent first went to the LCl Court which sent her to the LCII Court. That the Respondent then went to the LCII Court as an Appeal suing the 2nd Appellant.

230 I also noted that the l"t Appellant in testifying as DWl stated that he was summoned to the LC Court over this dispute and he did not attend. That he was not aware of any survey commissioned by the LC.

In the instant case, the Appellants contend that the Respondent sued Deziranta Nakanwagi in the L. C1 court of the area over the suit land. I am aware that Section I0(I) (daflhE Leedeeylt Ao provides that every Local Council Court

- 235 shall have jurisdiction for the trial and determination of causes and matters of a civil nature specified in the second schedule to this Act. The second scheduie sets out; Debts, Contracts, assault or assault and battery, conversion, damage to property and trespass. - 245 Having perused the record of proceedings, the evidence adduced in regards to this case being handled by the LC Court were the testimonies of the witnesses, the only written evidence alluding to the LC Court having handled this matter, are P.lD 1 and P. D2 which are letters from the general secretary of Kabalagala ward Makindye Urban Council summoning the 1st Appellant for a Court hearing and stopping the Appellants from continuing with construction on the 1and. These documents were only identified during the hearing after the Defendant's Counsel objected to the admissibility. Therefore, this Court cannot rely on them. 240

I see no evidence on record that the matter was decided at the LC I Court level. There are no proceedings from the LC Court or a written judgment from the Court that was adduced into evidence. In fact, the 1"t Appellant testified that he was ²⁵⁰ summoned by the LC I Court. That however he did not attend as he had gone to

attend Rotary convention in Austria. PW3 Nakato Catherine in her witness statement indicated that she was part of the LC I Court that handled the matter and the surveyor confirmed that there was encroachment of 10 feet by the Defendants into the Plaintiffs land. That the

Defendants refused to heed to their advice and they referred the matter to the LC II level. 255

Furthermore there was no evidence in regards to Civil Suit No. OO4 of 1994 having been handled to finality before the Chief Magistrates Court that was availed to the trial Court. I also noted that the Respondent testilied that there was no judgment in civil suit No. OO4 of 1994, indeed there was no judgment in

Civil suit No. OO4 of 1994 availed in the lower Court. 260

I remind myself that the burden of proof in civil cases is very clear. Facts alleged must be proved. The onus is on the Appellants to produce before Court, the Court proceedings and judgments of the LC I Court as well as the Makindye Chief Magistrates' Court to prove Res judiciata.

It is my finding that Appellants failed to prove that civil suit No. 36 of 2018 was handled by a court with competent jurisdiction and that a final decision was made in the suit.

The trial Magistrate was therefore right in arriving at her decision to disregard 27o the same.

Grounds one and two fail.

## Grounds 3, 4, 5 and 6

Ground three: The said learned tiol Chief Magistrote erred in latu and fact when sLrc failed to find that by the time the Respondent acquired Mailo interest in the

suit land sometime in gear 1993, the Appellants uere alreadg in lanaful possession and occupation of the suit land as Kibanja holders protected bg lau.t.

Ground four: The said learned tial Chief Magistrate ered in fact and la u.t uhen she failed to find that the Appellants as members of the familg of late Deziranta

6h

280 Nakarut tagi ( who had occupied the suit land since gear 1936 and who had passed autay in gear 201 1) and as beneficiaies to the said deceased's estate had a lauful interest in the suit land and theg utere entitled to continue hauing possession and ocanpation of the suit land euen though theg had no Letters of Administration to the estate of the said late Deziranta Nakaruaagi.

285 Ground fiue: The said learned tial Chief Magistrate erred in fact and lana uthen she failed to find thot the Appellants' deuelopments uthich tuere outside their titled land at Kgaddondo Block 244 Plot 4935 u)ere on a Kibanja which theg utere entitled ,o possess and ocanpg.

Ground S\*: The said leamed tial Chief Magistrate ered in fact and law when she held that the Appellants had no ight to claim interest in late Deziranta Nakonwagi's Kibonja uthereas there utas uncontrouerted euidence tuhich proued that the Appellants were blood relatiues of the deceased and throughout their life

29s theg had stayed on the said deceased's Kibanja at Kabalagalo and they had put up their personal deuelopments thereon uith her consent uhen she utas still liuing, and bg the time the Respondent acquired Mailo interest in the suit land in gear 1993 the Appellants had already settled thereon.

Counsel for the Appellants submitted that the Appellants are in lawful possession and occupation of the suit land in their own right because the late Deziranta had already given them part of her Kibanja where they already lawfully settled before the Respondent took the Mailo interest in the suit land therefore

the Respondent had no right to evict the Appellants from the suit property which they had already 1awfully occupied and in which they had lawful interest. 300

Counsel for the Respondent argued that the trial Court in arriving at its decrston of finding the Appellants to be trespassing on the Respondent's 1and, it did so with full appreciation of the facts of this case having listened to all the evidence,

visited the locus and seen the demarcated boundaries.

Resolution

I shall start by dealing with core issue of this case. This is the basis of all the above grounds.

Exi.stence of the landlord and tenant relationship betueen the parties.

310 Whether there existed a Kibanja belonging to the Appellants on the Respondent's registered land is the crux of this case. The Appellants claim to have Kibanja on the Respondent's registered land. Did they prove this fact on a balance of probability?

315 As I re-evaluate the evidence produced during trial, I remind myself of the following principles;

Section 101 ofthe Evidence Act CAP 6 provides that;

- 7. Whoeuer desires anA court to giue judgment as to ong legal right or liabilitg dependent on the existence of facts rtthich he or she osserts must proue that those facts eist. - 320 2. Wten a person is bound to proue the eistence of ang foct, it is said that the burden of proof lies on that person.

325 Section 103 of the evidence Act CAP 6 provides that " The burden of proof as to ang particular fact lies on that person u-tho wishes the court to belieue in its existence, unless it is proutded bg ang lau that proof of that fact shall lie on anA partianlor person".

Reference is also made to the case of O-iera Joseph Vs Lobeia Piimino HCCA 20/2013 on principles of evaluation of evidence. Justice Mubiru stated that "Whereas uaiations in the stgle of eualuation of euidence bg a court are ineuitable,

330 assessment of euidence is an eualuotion of its logical consistency, and this should be reJlected in the judgment. The hallmarks of a good eualuation of euidence adduced in a ciuil tial are unmistakoble. It should euince tuto keg elements. (i) a qualitatiue assessmenf of the truth and / or inherent probabilities of the euidence of the uitnesses uhere tlw ueracitg of uitnesses mag be tested bg reference to

- 335 contemporaneous euidence that does not depend much upon human recollection, such as objectiue facts proued independently of their testimong; (ii) and secondlg, an ascertainment of uthich of the tu-to uersions is more probable. The court will accept one of the tuto uersions u-thich is supported bg more probatiue euidence and uill reject the otler uersion withless probatiue euidence to back." - ³⁴⁰ I shall go ahead to evaluate the evidence.

3s0

The Respondent/ Plaintiff (PW1) confirmed that she was the registered proprietor of the suit land that is Plot 5051, Block 244 at Kabalgala. That she brought it from the previous owner and there was no Kibanja interest of any kind. She further testified that the Appellants/ Defendants are owners of the adjacent plot.

345 That the problem started when the Defendants in the course development of their plot encroached into her plot by 1Oft.

She also stated during cross-examination that she knew Deziranta who was the neighbouring land. That she sued her because she was preventing her from doing anything on her land. She clarified the original owner was Mohamad Aii who subdivided. That it was in 1988. That later the second Defendant built on parts of her land.

PW2 Simon Karasi who was the LCII chairperson gave the Court the history. That he has lived in the area from 1964. That area which both parties were claiming formed part of the estate of Mr Mohammed Ali Yusuf. That he subdivided all his land in accordance to Bibanja interests including squatters. He called a meeting and informed everyone with a Kibanja to buy the legal interests so that he can transfer the titles.

He stated that Bibanja holders went ahead to get titles. That included Mr. Omar Bah who got Plot 5O51 while Dezirinta got Plot 5050. Problems started when

360 Dezirinta was building a storyed building and encroached on the Plaintifl's land. The locai authorities even ordered a survey to be conducted and it was proved that there was encroachment. It was suggested that the Defendants compensate

th ¹³

the Plaintiff for this 1OFt but instead the encroachment became even worse. The local authorities tried to intervene but in vain.

365 He added that the Defendants are not even on Deziranta's plot but on a different one. That there are 3 different Bibanjas. One for the Plaintiff, another for Deziranta and the third one for the Defendants.

The evidence continues with PW4 Nakato Catherine who confirmed that there was encroachment by the Defendants onto the Plaintiffs land' Her evidence becomes confusing when she states that the Plaintiff and Deziranta had the same Kibanja but the Defendants were on the different one. She stated that both the Plaintiff had different land titles. That Deziranta never had any children but the 1"t Defendant was her grandson.

375 The lst Defendant DWl in his evidence claimed that he inherited the suit land which was a Kibanja that was occupied by the late Deziranta. That she orally gave the land to the Appellants. He accepted that parts of his building extend into the Plaintiff's land but under his Kibanja.

The 2"d Defendant DW2 stated that she was staying with the late Deziranta since she was infant and in 1975, she was given part of the Kibanja about 0.14 acres.

380 That in 1994, a dispute arose between the Plaintiff and Deziranta. That the Plaintiff brought the Malio interest on the Kibanja that belonged to Deziranta' She admitted that her building overlaps into the Plaintifl"s land.

38s DW3 Margaret Nakachwa Mbaziira told the Court that the Defendants are relatives. That the Plaintiff intended to take Deziranta's Kibanja claiming that she had a Malio title to the land. That when the dispute was handled by the LC one where she was a member, it was resolved the Plaintiff had no right to take aw ay D ezir anta's Kibanj a.

Is there suflicient evidence to prove that there was Landlord and tenant relationship between the Plaintiff and the late Deziranta? I bear in mind the rule 390 that he\she claims the existence of a fact must prove it.

6\f

I am also aware that there were contradictions or inconsistency in the evidence from both parties. Fact not in dispute is that the Appellants and Respondent are registered proprietors of their own plots.

395 However one key fact that defines this land conflict is the existence or nonexistence of a landlord and tenant which would amount to trespass or not. The lack of evidence is evident.

It is my finding that there was no evidence adduced to show that the Appellants were in possession of the suit iand at the time the Respondent purchased her interest in 1993. I also find that the Appellants did not adduce any evidence to prove that the late Deziranbta donated her Kibanja to them and neither did they adduce any evidence to prove that they are beneficiaries to her estate.

Under Section 59 Registration of Titles Act, possession of a certificate of title by a registered person is conclusive evidence of ownership of the land described therein. Further, under Section 176 (cl (supral a registered proprietor of land is protected against an action for ejectment except on ground of fraud. (See Kampala Bottlers uersus Damanico M) Ltd, S. C. Ciuil Aooeal No. 22 of 1992 and H. R. Patel uersus B. K. Patel 1992 - 1993 HCB 137,

410 It is not in contention that the Respondent is the registered proprietor of land comprised in Kyadondo Block 244 Plot 505 1 and the l"t Appellant is the registered proprietor for land comprised in Kyadondo Block 244 plot 4935. The Appellants testified and confirmed in Court that part of their building extends into the Plaintifl's land.

It is my conciusion the Appellants have failed to prove on a balance of probability that there existed a landlord and tenant relationship between the Respondent

415 and the late Deziranta. This makes them trespasser on the Respondent's land and thus the suit property.

r' h

My conciusion is that the trial Magistrate was correct in the circumstances to find that the Applellants have no right over the suit Kibanja. The trial Magistrate was right in finding that the Appellants are trespassers on the suit 1and.

420 Therefore Grounds 3,4,5 and 6 also fail.

Grounds 7, 8 and 9

Ground 7: The Trial Chief Magistrate erred uhen she ordered the Appellants to pag to the Respondent a sum of UGX 4O,OOO,O00 as compensation for an area of land claimed to be measuing 10 feet which tLre Respondent alleged to haue been

425 trespassed upon u-thereas the said ataard of UGX 4O,OOO,OOO had not been pleaded and no euidence uas adduced to proue that the plot measuring 10 feet uas uorth UGX 40,000,000.

Ground eight: The learned trial Chief Magktrate eted u.then sh.e anuarded to the Respondent general damages of UGX 7,OO0,OOO tuhereas the Respondent had not

430 proued that she had incured ang loss for the alleged trespass on 1O feet of land.

Ground nine: The leorned trial Chief Magistrate failed to find that th.e said autard of UGX 4O,O0O,OO0/: and UGX 7,OOO,OOO/ = uere excessiue in the ciranmstances.

Counsel for the Appellants submitted that there was no evidence to prove that the Respondent ever suffered any loss in order to be entitled to compensation of

435 UGX 40,O00,OO0 and general damages of UGX 7,O00,O00. That the Appellants never damaged any property belonging to the Respondent.

Counsel for the Respondent on the other hand submitted that the Appellants permanently deprived the Respondent by building permanent structures thereon including a storeyed house which the trial Court rightly held to be the loss

440 occasioned on the Respondent as the registered proprietor. That the trial Court therefore fuliy justified in awarding the market value of the land deprived from the Respondent as compensation.

These grounds of appeal relate to compensation award of UGX 40,000,00O and general damages of UGX 7,000,0000 that were awarded to the Respondent. The Appellants contend that these awards were excessive.

The trial Magistrate in linding in the Respondent's favor awarded general damages of UGX 7,000,000 and ordered that the Appellants pay the Respondent UGX 40,OO0,0O0 as the open market value of the iand trespassed or in defauit render the encroached piece of land vacant.

450 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. See'. Kibimba Rice Ltd u. Umar Sa/im, S. C. Ciuil Appeal No. 17 of 1992.

In the assessment of general damages, the Court should be guided by the value of the subject matter, the economic inconvenience that the Plaintiff may have been put through and the nature and extent of the injury suffered. In an action of trespass, the Plaintiff, if he/she proves the trespass, is entitled to recover 455

460 In this case, the trial Magistrate rightly found that the Appellants are trespassers on the Respondent's land and awarded general damages of UGX 7,000,000. I note that the Appellants have not demonstrated to this Court on how this award is excessive. This Court sees no reason as to why it should interfere with the trial Magistrate's discretion in awarding the general damages.

damages, even although he has not suffered any actual loss.

465 In regards to the compensation of UGX 4O,OOO,0O0, the trial Magistrate in her orders stated that this sum is the open market value of the land the Appellants trespassed. The Respondent in her plaint sought for the following orders

- a) A declarotion that the defendant trespassed on the plaintiffs land - b) An order compellirLg the defendants to remoue ttrcir structure from the plaintiffs land to render that encroached part uacant or in the alternatiue

- ⁴⁷⁰ the defendants be ordered to pag the plointiff UGX 4O,OOO,000 as the open market ualue of the lond portion trespassed - c) General damages payable to the plaintiff.

From the foregoing, the trial Magistrate based this award on the orders sought by the Respondent. The Appellants did not dispute this amount during trial. The Appellants were on the other hand given the alternative of rendering the encroached piece of land vacant.

It is my conclusion that the Appellants should vacant from the land they encroached given that they have failed to compensate the Respondent with the ucx 40,000,000.

⁴⁸⁰ I accordingly find no merits in ground 7 ,8 and 9 .

I accordingly dismiss peal with costs.

## Elizabeth Jane Alividza

485 Judge Date: s\xoN' bt\

Court.

Delivered on ECCM

⁴⁹⁰ 1

475