[2025] UGHCLD 68

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION) CIVIL SUIT N0. 765 OF 2018 SEMBATYA HABIB ::::::::::::::::::::::::::::::::::::: PLAINTIFF**

### **VERSUS**

**CHINA WU YI CO. LTD :::::::::::::::::::::::::::::::: DEFENDANT**

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

### **JUDGMENT**

## *Introduction.*

- 1. Sembatya Habib hereinafter referred to as the plaintiff brought this suit against China Wu Yi Co Ltd hereinafter referred to as the defendant for orders that: - i) A declaration that the defendant trespassed on the plaintiff property by unlawfully using it as a camping site for its tractors, graders, bulldozer and other road construction machinery without the permission of the plaintiff. - ii) A declaration that the acts of the defendant interfered with the plaintiff 's right to use and ownership of the land.

- iii)A declaration that the activities of the defendant on the Suit land resulted into degradation, loss of value of his property and land destruction. - iv)An order compelling the defendant to compensate for loss of projected earnings lost so far to the tune of UGX 130,500,000/=. - v) General damages - vi) Exemplary damages - vii) Costs of the suit - viii) Interest

## *Background*

2. The plaintiff is the registered proprietor of land comprised in Block 35 Plot 131 land at Busaku, Namayumba in Wakiso District. The defendant is a construction Company that was sub-contracted by Spencon Services Limited for works on the Nansana-Busunju Road. During execution of the said works, the defendant allegedly placed equipment on the plaintiff's land without the plaintiff's consent thereby degrading his land and abusing his right to

ownership of the land. It is against this background that the plaintiff brings this case to this court.

## *Plaintiff's case*

- 3. The plaintiff is the registered proprietor of land comprised in Block 35 Plot 131 land at Busaku, Namayumba in Wakiso District. That while away, the plaintiff got to know that the defendant placed machinery and other equipment on his land. - 4. The plaintiff travelled home on the 25th day of February 2018 to inspect and confirm whether the defendant trespassed on the said land. The plaintiff confirmed the trespass by the defendant who had even brought security guards on the land. The said trespass has caused injury to the defendant and degraded his land.

### *Defendant's case;*

5. The defendant acknowledged carrying out constructions works along the Nansana-Busunju Road and is executing the said contract. The defendant denied the allegations of trespass. That in all places where she has camped and used as a parking yard, she has done so lawfully. The defendant denied causing any loss or

inconvenience to the plaintiff and that if she suffered any loss then it is too remote or the same is because of the plaintiff's own making.

## *Plaintiff's evidence;*

- 6. The plaintiff produced 4 witnesses PW1 (the plaintiff), PW2 a police officer attached to Criminal Investigations Department, PW3 Augustine Lugolobi an Engineer by profession and PW4 Angullu Kenneth Henry. - 7. The plaintiff adduced evidence of the following documents that were exhibited; - i) A purchase agreement PEX1 - ii) A copy of the Certificate of title for land comprised in Block 45 Plot 131. - iii)Photographs of machines deposited on the suit land PEX3 - iv) Memorandum between the plaintiff and the contractor PEX4 - v) Acknowledgement of payment PEX5 - vi) Letter dated 12th February 2018 PEX6 - vii) Police report dated 20th May 2018 PEX7 - viii) Demand notice PEX 8

# *Defendant's evidence;*

- 8. The defendant produced evidence of one witness DW1 Akello Ketty working as a Human Resource and Administration contractor for the defendant company. The defendant adduced evidence of the following documents that were exhibited; - i) Lease Agreement dated 1st June 2015 DEX1 - ii) Contract dated 8th May 2017 DEX2 - iii)Contract dated 20th August 2017 DEX3 - iv) Contract dated 23rd August 2017 DEX4

# *Locus visit;*

- 9. Court conducted a locus visit on the 7th of March 2025 and made the following observations; - i) There are some big stones on the land. - ii) There are heaps of debris on the said land - iii) The plaintiff resides on part of the land

# *Representation;*

10. The plaintiff was represented by M/S Odokei Opolot & Co. Advocates whereas the defendant was represented by M/S Kintu Nteza & Co. Advocates. Both parties filed written submissions which I considered in the determination of this matter.

## *Issues for determination;*

- *i) Whether the defendant trespassed on the suit land?* - *ii) Whether the defendant's actions/omissions amounted to malicious damage to the plaintiff's property on the land?* - *iii) Whether the plaintiff is entitled to the special damages sought for in the plaint?* - *iv) What remedies are available to the parties?*

## *Resolution and Determination of the grounds;*

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

11. Counsel for the plaintiff submitted that for one to succeed in an action for trespass on land one has to successfully establish ownership, physical possession and the defendant's unlawful entry on the suit land without permission of the plaintiff. Counsel

# relied on *Sheikh Muhammad Lubowa v Kitara Enterprises Limited Civil Appeal No.4 of 1987*.

- 12. That the plaintiff stays on the suit land since 2009 immediately after his purchase of the suit land and the same was confirmed during the locus visit and the defendant did not contest that. - 13. Counsel for the plaintiff added that only a party in possession is entitled to sue in trespass. Counsel relied on the decision in the case of **Dima Domnic Poro v Inyani Godfrey Civil Appeal No 17 of 2016.** - 14. That the plaintiff has a matrimonial house on the suit land built prior to the defendant's unlawful trespass to the suit land. - 15. That at the locus in quo it was confirmed that the plaintiff stays on the suit land even prior to the trespass on the suit land. Counsel concluded that the plaintiff was in actual and constructive possession at the time of the trespass. - 16. Counsel for the plaintiff further submitted that the defendant did not obtain permission from the plaintiff before doing anything on the land. Counsel relied on PEX 3 a photo of the defendant's machines on the land. That the defendant is an arrogant entity that does not have respect for people's property. - 17. In reply counsel for the defendant submitted that the burden of proof in Civil matters such as this one lies on the party who asserts the affirmative of the issue in question or in dispute. Counsel relied on Section 101, 102 and 103 of the Evidence Act. - 18. That it is the defendant's case that the plaintiff failed to adduce cogent evidence before this honourable court in order to discharge the evidential burden. - 19. The plaintiff failed to adduce evidence of a professional surveyor's report to prove his claim on the balance of probabilities. The plaintiff even conceded in cross examination that he did not have a survey report and PW2 conceded during cross examination that a survey report would assist the court in proving that Plot 131 was indeed trespassed on by the defendant. - 20. He added that it was not enough for the plaintiff in a case like this to flash a certificate of title for Busiro Block 35 Plot 131 as proof of the allegations of trespass. That in a case like this a survey report was crucial in assisting the court to ascertain the boundaries of the land. A survey report was important to show court that what the plaintiff showed court at the locus as land registered in the names of the plaintiff was located in the exact

location and that it was encroached on. Counsel prayed for the issue to be answered in the negative.

## *Analysis by court;*

- 21. The plaintiff has the burden of proof to adduce evidence on the balance of probabilities, that the defendants are trespassers on the suit land. Section 102 of the Evidence Act provides that; **" On whom burden of proof lies; The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. "** - 22. The Supreme Court of Uganda in the case of **Senkungu & 4 Ors v. Mukasa (Civil Appeal No.17 of 2014) [2017) UGSC 14** (per Augustine S. Nshimye, J. S. C) held that: "In civil trials, the burden of proof is the obligation to present evidence on the subject of the law suit; that is, to prove or disprove a disputed fact." - 23. I agree with counsel for the plaintiff that for one to succeed in an action for trespass he or she must establish the following as was laid down in the case of *Sheikh Muhammad Lubowa vs Kitara Enterprises Limited Civil Appeal No 4 of 1987*; - i) The plaintiff must own the property

- ii) The plaintiff must be in physical possession of the suit land - iii)The defendant must have unlawfully entered the suit land without permission of the plaintiff. - 24. Trespass to land has been defined as unjustifiable interference with the possession of the land. *(See; Winfield and Jolowiz on*

### *Tort 11th Edition Page 335)*

25. In this case the plaintiff adduced evidence that he is the lawful owner of land comprised in Block 45 Plot 131 and therefore has legal possession. PEX 1 is a purchase agreement and PEX 2 is a copy of the Certificate of title comprised in Block 45 Plot 131. At law a person with a certificate of title is deemed to have legal possession of the said land. *(See; Justine EMN Lutaaya v*

## *Sterling Civil Engineering Limited Civil Appeal No 4 of 1987)*

26. In cross examination, PW1 testified that his land was not fenced because it was on the road but he had built a small house on the land. The plaintiff also adduced evidence of a photograph PEX3. Counsel for the defendant delinked the photos from the defendant when the plaintiff was asked if anything in the photos pointed to the defendant or the fact that the photos taken were of the subject

land. PW1 clearly responded that they did not. PW1 again when asked whether he had a survey report he said there was none.

- 27. PW2, Byaruhanga Lawrence a police officer also made a statement in respect of the matter on the alleged trespass. A police report PEX 7 was also exhibited. PW 2 denied authoring the report when asked in cross examination. He did preliminary investigations on the ground. On the exact location of the land, PW2 when asked how he got to know that the land in question is Plot 131 he responded that it was only showed to him by the plaintiff and only knew the demarcations based on the opinion of the plaintiff that showed him the land. He added that he did not look for the mark stones to verify boundaries. - 28. According to the Supreme Court of Uganda in the case of **Justine . E M. N. Lutaya v. Stirling Civil Engineering Company Ltd, Civil Appeal No. 1 of 2002 (per Mulenga, J. SC):** *"Trespass to land occurs when a person makes an unauthorised 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. Where trespass is continuous, the person with the right to sue may exercise the right immediately after the trespass commences, or any time during its continuance or after it has ended for purposes of the rule, however, possession does not mean physical occupation. The slightest amount of possession suffices, possession is vested in the holder of a certificate of title to the land. In the event of trespass, the cause of action accrues to that person, as against the trespasser by virtue of her certificate of title, the appellant had legal possession of the suit land, and therefore, the capacity to sue in trespass"*

- 29. Once court finds that the plaintiff is the owner of the land, as I have found in the instant case, anyone who occupies the land without consent or permission of the plaintiff must be held to be a trespasser. *(See; In the Estate of Shanji Visran & Kirji Karar v Shankeprased Bhatt and Others (1965) EA 789)* - 30. However, trespass to land is one action whose applicability is confined within specific spatial and legal boundaries. It is not an

action that may be invoked indiscriminately or without territorial precision.

- 31. A claimant must establish with clarity and evidence, the specific locus within which the alleged trespass occurred. It is impermissible for a party to rely merely on speculative assumptions that the portion of land may belong to them with hope that the court may rule in their favour without concrete proof of lawful possession and demonstrable interference therewith. - 32. Accordingly, the onus lies on the plaintiff to delineate the exact boundaries of the land in question especially where the confines are contested like in the instant case and to show that such land was unlawfully entered or interfered with. - 33. In the instant case, the plaintiff failed in this aspect to show that the interference by the defendant was done on his land. - 34. In the absence of any evidence in proving the boundaries of the plaintiff's land, an inference cannot be drawn that the trespass occurred on the plaintiff's land. - 35. Therefore issue 1 is resolved in the negative. - 36. Upon resolving the first issue in the negative, I do not find it necessary to proceed with the resolution of the other issues.

- 37. In the premises, the instant suit is hereby dismissed by this court. - 38. There is no order as to costs.

# **I SO ORDER.**


## **NALUZZE AISHA BATALA**

**Ag. JUDGE.**

### **21 st/05/2025**

#### **Delivered electronically via ECCMIS on this 21 st day of May**

**2025.**