[2024] UGHCLD 205

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION)**

### **CIVIL SUIT NO.0547 OF 2023**

**ESTHER MUTSINZI KABOGOZA ::::::::::::::::::::::::::::: PLAINTIFF (The Administratix of the Estate of the Late**

**Jimmy Musisi Lwanga Kabogoza)**

# **VERSUS**

# **1. SEVIRI KRANIMA**

**2. KIMERA GEORGE WILLIAM :::::::::::::::::::::::::: DEFENDANTS**

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

# *Introduction;*

- 1. The plaintiff (administratrix of the estate of the late Jimmy Musisi Lwanga Kabogoza) brings this suit seeking declarations and orders inter alia; - a) A declaration that the defendants are trespassers on the plaintiff's land descried as Kyadondo Block 94 Plot 87 at Kata. - b) Mesne profits of Ug shs 100,800,000 - c) A permanent injunction restraining the defendants, their agents, servants, employees, family members, legal

representatives and or assignees from ever trespassing on the suit land.

- d) An eviction order against the defendants. - e) An order that the defendants' illegal buildings/structures constructed on the plaintiff's land be demolished. - f) Damages for trespass to land. - g) Interest on damages at Court rate from the date of judgment till payment in full and costs of the suit.

#### *Background;*

- 2. The plaintiff is the administratrix of the estate of the late Jimmy Musisi Lwanga Kabogoza who was the registered proprietor of the suit property described as Kyadondo Block 94 Plot 87 at Kata. - 3. That sometime after 2014 or thereabout, the defendants without the plaintiff's authority or color of right trespassed on the whole of the suit property and illegally constructed two (2) permanent houses thereon and are illegally inhabiting/occupying the houses that they illegally constructed on the suit property. - 4. The plaintiff demanded that the defendants vacate the suit property but the defendants declined and instead offered to buy the plaintiff's land at Ug shs 7,000,000 which offer was flatly

rejected by the plaintiff because the value of the suit property exceeds Ug shs 100,000,000.

- 5. The plaintiff reported a case of criminal trespass against the defendants at the land protection unit of the Uganda Police in Kibuli in a bid to secure an eviction of the defendants but the defendants continued trespassing on the suit land. - 6. The plaintiff further avers that the defendants have occupied and inhabited her land without paying rent for seven (7) years from 2016 to date which has occasioned her loss of rent of Ug shs 1,200,000 (One Million Two hundred thousand shillings) that she claims as mesne profits/special damages as rent for 84 months which totals up to a tune of Ug shs 100,800,000. - 7. All efforts to involve the defendants in these proceedings proved futile, the plaintiff applied to serve the defendants by way of substituted service which order Court granted on 09th/01/2024 to publish the summons in Monitor/New Vision newspapers but still, the defendants did not file a defence thus the plaintiff prayed for an interlocutory judgement to be entered against the defendant under Order 9 rule 8 of the Civil Procedure Rules and the matter proceeded exparte as against the defendants.

#### *Plaintiffs' evidence;*

- 8. The plaintiff led evidence by witness statement where she stated that - **i.** she is the widow and administratrix to the late Jimmy Musisi Lwanga Kabogoza having been granted letters of administration on 26th July, 2012. - **ii.** That the deceased is the registered proprietor of the suit land comprised in Kyadondo Block 94 plot 87 at Kata but she has never found the owner's copy nor applied for a special certificate of title so as to register her grant thereon. - **iii.** That by virtue of the letters of administration, the plaintiff is the legal owner of the suit land and in legal possession thereof with all legal authority. - **iv.** That sometime in the year 2014, the defendants without the plaintiff's authority illegally trespassed on the suit land and constructed permanent houses thereon which they occupied with their families in 2016. - **v.** That I have on several occasions demanded the defendants and their families to vacate the suit land but they adamantly declined to do so but instead made an unreasonable offer to purchase the suit land measuring

approximately one acre at Ug shs 7,000,000 which offer I rejected.

- **vi.** That I reported a case of criminal trespass against the defendants at the land protection unit of Uganda police force with hopes of compelling the defendants to cease their trespass and vacate the suit land but it did not faze them either. - **vii.** The defendants have occupied the suit land for eight (8) years without paying rent to the deceased's estate at a rental cost of Ug shs 1,200,000 occasioning them an aggregate loss of approximately Ug shs 115,200,000/= and prays for damages of Ugshs 50,000,000/= as compensation to the estate for deprivation of use of the estate land and inconvenience. - **viii.** The plaintiff also reiterated all her prayers in the witness statement.

#### **Locus Proceedings**

9. On 11/6/2024, Court visited Locus at Kata in Kasangati. Court established that the land is 0.4050 hectares and the certificate of title is registered in the names of the late Jimmy Musisi Kabogooza Lwanga. The plaintiff informed Court that her late

husband purchased the suit land but they never stayed on it and only started construction on it in around 2010 after her late husband's death and the defendants have proceeded to sell part of it.

- 10. It was established that the defendants stay on part of the land and the plaintiff informed Court that she has only seen them once during mediation where they claimed to be kibanja owners. - 11. Further court also observed that the suit land is occupied by other parties who have since made developments thereon and the same parties were never party to the instant suit. - 12. The plaintiff brought it to the attention of court that the defendants are brokers who helped her late husband to purchase the suit land. - 13. The plaintiff also revealed to Court that she has never engaged with the other people that now stay on the land.

#### *Representation;*

14. At the hearing, the plaintiff was represented by Counsel Renato Kania of M/S Renato & Alli Advocates & solicitors while the defendants were unrepresented as they did not participate in these proceedings.

# *Issues for determination*

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

- i. Whether the Defendants are trespassers on the suit land? - ii. What remedies are available to the parties? - 13. However, Court shall proceed to amend the issues under Order 15 Rule 5 of Civil Procedure Rules and frame the following issues for proper resolution of the matter in controversy. - **I. Whether the Defendants trespassed on the suit land?** - **II. Whether the plaintiff is entitled to any remedies sought?**

#### *Analysis and determination of the issues;*

#### *Issue 1.*

**1) Whether the defendants trespassed on the suit land?** 14. Counsel for the plaintiff in his submissions relies on the case of **Justine E. M. N Lutaaya v Sterling Civil Engineering Co. SCCA No. 11 of 2002** to define trespass and submitted that the suit land belongs to the plaintiff as the administratrix to her late husband's estate, the late Jimmy Musisi Lwanga Kabogoza having obtained letters of administration on the 26th day of 2012.

- 15. Counsel further submitted that the plaintiff has not been able to transfer the suit land into her names because she has not been able to get the duplicate copy of the certificate of title or process a special certificate of title. - 16. 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)** - 17. 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 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)* - 18. I shall proceed to qualify all the above elements to establish whether the defendants are actually trespassers on the suit land. - **I. That the disputed land belongs to the plaintiff.** - 19. The plaintiff states under paragraphs 1 & 2 of her witness statement that the suit land comprised in Kyadondo Block 94 Plot 87 at Kata is registered in her husband's name, the late Jimmy Musisi Lwanga Kabogoza and that she obtained a grant of letters of administration to his estate on 26th July 2012. - 20. The plaintiff further states under paragraph 4 of her witness statement that she is the legal owner of the suit land by virtue of holding letters of administration to her late husband's estate. - 21. An administrator being a legal representative of an estate of a person that died intestate holds the deceased's properties as a trustee for the benefit of all the beneficiaries under the estate.

#### **(See Section 192 of the Succession Act)**

- 22. Letters of administration is just authority given by Court to a person to administer the estate of a person that dies intestate but do not confer ownership of the deceased's property onto the administrator(s). - 23. Therefore, the suit property does not in the essence belong to the plaintiff in her personal capacity but rather the same forms part of the estate of the late Jimmy Musisi Lwanga Kabogoza and in the capacity of an administrator, the plaintiff can maintain this action to salvage and protect the estate property.

#### **II. That the defendant had entered upon it,**

24. On the 11th/6/2024 Court visited Locus and it was established that both defendants indeed reside on the suit land on which they constructed houses and disposed of some parts thereof. Thus, this ingredient is proved.

# **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.**

- 25. The plaintiff states under paragraphs 5,6,7,8 & 9 of the witness statement that the defendants in 2014 illegally trespassed on the suit land and constructed permanent houses thereon which they occupy with their families. - 26. That the plaintiff has on several occasions demanded the defendants to vacate the suit land but they adamantly declined to do so and instead offered to purchase the suit land at Ug shs 7,000,000 which was lower than the value of the suit land thus the plaintiff reported a case of criminal trespass against the defendants at the Land Protection Unit (at police). - 27. It is quite clear that the defendant's entry onto the suit property was un authorized and owing to the fact that the

defendants did not file a defence to explain how they got onto the suit land and any interest they have therein if any.

28. From the foregoing, it only brings this Court to a finding that the defendants entered onto the suit land unauthorized by the owner hence being trespassers onto the suit land.

## **Issue 2; Whether the plaintiff is entitled to any of the remedies sought.**

29. The plaintiff sought various remedies to wit; a declaration that the defendants are trespassers on the suit land, mesne profits of Ug shs 100,800,000/=, a permanent injunction, an eviction order, an order that the defendants' illegal buildings/structures constructed on the plaintiff's land be demolished, damages for trespass, interest and costs of the suit.

#### *Mesne Profits*

30. 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.

- 31. The plaintiff claims that the defendants have occupied the suit land since 2016 to date without paying rent for which she has calculated as mesne profits to Ug shs 115,200,000 or (Ug shs 100,800,000) at a rental rate of Ug shs 1,200,000 per month. - 32. The plaintiff claiming Ug shs 115,200,000 as rental arrears since 2016 merely accords the defendants a status of a tenantland lord relationship which does not exist in the instant case. - 33. The definition of a tenant is very wide and includes all persons who occupy premises lawfully, whether a person pays regular rent, subsidized rent or indeed no rent is immaterial. The qualification of becoming a tenant under the law is lawful occupation. **(See; Komakech Sam & 7 others v Ayaa Corina & Anor CA No.0028 of 2016).** - 34. Whereas a tenant lawfully occupies land, it is not the same with a trespasser as his occupation of the land is unlawful which makes him a trespasser onto the same. - 35. Having found the defendants to be trespassers on the suit land, the plaintiff cannot in turn accord them the status of being tenants so as to claim rent in that regard owing to the fact that their entry onto the suit land was unlawful an unauthorized.

- 36. Further still, I have carefully considered the plaintiff's evidence and I find no evidence of the profits which the defendants received as profits out of the suit land. In the premises, I find that the evidence on record does not sufficiently justify a claim for mesne profits. - 37. Therefore, this court declines to award the plaintiff mesne profits as claimed.

#### *General damages*

- 38. 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)** - 39. 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)**

40. Counsel for the plaintiff in his submissions relies on the authority of **Charles Acire v Myaana Engola HCCS No. 143 of 1993** where it was held that a plaintiff who suffers damages due to the wrongful act of the defendant must be put in the position

he or she would have been if she or he had not suffered the wrong.

- 41. The plaintiff states under paragraph 12 of her witness statement that the beneficiaries have been kept out of use of the estate property which has been an inconvenience and pray for general damages. - 42. This being estate property, it's quite clear that the beneficiaries of the estate of the late Jimmy Musisi Lwanga Kabogoza have been kept out of use of the estate property which justifies the award of general damages. - 43. The plaintiff claims for an award of ughs. 50,000,000 as general damages, however this court deems it fit to award Ugshs 20,000,000 as general damages at an interest rate of 10% from the date of this judgement till payment in full

#### *Eviction and Demolition Orders*

44. Having found the defendants to be trespassers, it is only just to get them off the estate property for the benefit of the beneficiaries, therefore the above orders shall be enforced as per **The constitutional (Land eviction) (Practice) Directions,**

**2021** and the same shall only happen upon issuance of eviction notices as provided for under the said directions.

- 45. For the foregoing reasons, I proceed to pronounce judgement and decree for the plaintiff against the defendants jointly and severally upon the terms that; - i) A declaration that the defendants are trespassers on land comprised in Kyadondo Block 94 Plot 87 at Kata measuring 0.4050 hectares. - ii) A permanent injunction doth issue restraining the defendants from selling, transferring, transacting and or dealing in any way in the suit land. - iii) General damages of Ug shs. 20,000,000(Twenty Million Ugandan Shillings) awarded to the plaintiff against the defendants jointly at an interest rate of 10% from the date of this judgement till payment in full. - iv) Costs of the suit awarded to the plaintiff against the defendants jointly.

**I SO ORDER**.

### **NALUZZE AISHA BATALA JUDGE 19/08/2024**