[2025] UGHC 557

# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT MPIGI

## CIVIL SUIT NO. 104 OF 2017

## THE REGISTERED TRUSTEES

CIFTHE BANAKALOBY BROTTIERE. o cx vanan so sn sacsscn w s ww socsoon s snsems woes PLAINTIFF

## VERSUS

# 1. ATC UGANDA

5. BATCIN TORVERS. (1) BT . 10 o s st b s s s s bt e i i DEFENDANTS

#### 10 BEFORE: HIS LORDSHIP HON. JUSTICE OYUKO ANTHONY OJOK

## udgment

1t is the plaintiff's case that in 2002, the 15t defendant's predecessor MTN (U) Ltd with the plaintiff entered into a lease agreement for a period of 10 years ending in 2012 whereby MTIN started using the suit land by way of an access Road to its telecommunication mast, underground fiber cables and three phase electric line among other purposes as per the lease agreement.

That the lease agreement did not materialize due to some unforeseeable circumstances and the relationship of the plaintiff and the 1t defendant's predecessor in title was terminated or ended on the 28t February, 2005 thus the 1st defendant's predecessor in title ceased to have any right of use of the property of the plaintiff inclusive of the access road and had to remove its facilities like the

electric wires, poles and underground fibers.

25 The 1%t defendant's predecessor however continued to use the access road established under the botched lease agreement with the plaintiff, maintained the underground fiber cables, access road and its electric line through the plaintiff's land from the 28 February, 2005 and continuously used them without consent and permission of the plaintiff.

By letter dated the 5™ December, 2011 and signed on the 29t June, 2012, the 1st defendant's predecessor in title assigned its rights and liabilities over the mast to the 1st defendant who also continued to trespass on the suit land by way of an access road, maintaining of underground fiber cables and three phase electgic power line to date. fi%'

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That in or around 2008, the 27 defendant's, predecessor in title being Africell and Airtel unlawfully started using the same exclusive disbanded access road to their respective masts without the knowledge or consent of the plaintiff.

In or about 2012, the 27 defendant's predecessor in title (Airtel and Africell) assigned their right and liability over their masts to the 21d defendant who has continued to trespass on the suit land by way of use of the disbanded access road.

That in the course of continued unlawful use of the plaintiff's land, the defendants have also widened the access road beyond the prior agreed limit of 4 x 4 feet and heavy trucks have made deep holes on the plaintiff's land interfered with the establishment of the suit land like the destruction of the school pit latrine, cutting down of a substantial number of eucalyptus trees.

- That the 15t defendant is therefore liable for its predecessor's acts of trespass from 2008 to 29/May/2012 as the date of assignment and from that date to date for the 1%t defendant. - 15 The defendants on the other hand contended that the continuing trespass claim against the 1%t defendant is partially time barred since the limitation period effective the 29% February, 2005 expired on the 28% February, 2017; the claim for general damages is inequitable as the plaintiff mistakenly leased land it did not own but rather belonged to John Kamuli. - 20 As such the plaintiff is not entitled to any award of Mesne Profits as it did not adduce any evidence of profits earned by the defendants or their predecessors through the alleged use of the access road, the manholes and the earth wires.

It is the defendants' case on the other hand that the plaintiff is the registered proprietor of land comprised in Mawokota Block 298 Plot 29 measuring 29 hectares in Buyiwa Estate, Buwama Sub-County in Mpigi District.

That on 4™ May, 2002, MTN (U) Limited (MTN) executed a lease agreement with the plaintiff in respect of a portion of land measuring 20 x 20 meters for the purpose of establishing a telecommunications mast. MTN took possession and erected the mast. Since there was no access road to the mast, the agreement permitted MTN to create an access road and erect other instalments and fiber cables as easements.

MTN later discovered that the plaintiff had no interest in the portion of land it had leased to MTN (on which the mast was established) Plot 30, which was owned by John Kamuli and for that reason, the lease agreement with the plaintiff was terminated on the 28™ February, 2005. fi

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On the Ist May, 2005, MTN executed a lease agreement with John Kamuli in respect of a portion on Plot 30 for 10 years on 5% December, 2011, by an amendment to the lease agreement. MTN assigned its interests in the lease agreement to the 1+t defendant (ATC). On the 10" November, 2014, ATC and John

Kamuli made a 2" amendment to the agreement thereby extending the lease term for 10 years. The 1st defendant found the access road in place when it inherited rights from MTN and has been using the same.

On the 6% February, 2008 Africell (Eaton's predecessor) entered into a lease agreement to establish a mast on land comprised in Mawokota Block 301 Plot 117 owned by Leonard Kiragga Namwama. Instead of utilizing the access road

constructed by MTN, Africell opted for an alternative route through John Kamuli's land, for which he was duly compensated.

On the 29™" May, 2012, Africell (U) Ltd together with Airtel (U) Limited signed an agreement where Africell assigned and transferred all interest in infrastructure to the 27 defendant. The 21d defendant eventually merged with the 1% defendant.

## Representation:

Counsel Kakeeto Denis appeared for the plaintiff while Counsel Philp Muhumuza appeared for the defendants. Both sides filed their written submissions.

## Issues:

- 1. Whether the plaintiff's claim against the defendants is barred by the Limitation Act? - 2. Whether the existing road constituted an easement for the defendants? - 3. Whether the defendants' predecessors in title and themselves are trespassers on land comprised in Plot 29 Block 298 by way of electric wires access road and underground fibers? - 4. What remedies are available to the parties?

Resolution of issues:

## Burden and standard of proof:

In civil matters the burden of proof lies on the plaintiff to prove their case as against the defendant and the standard of proof is on a balance of probabilities.

Section 101 of the Evidence Act provides;

"(1) Whoever desires any court fo give judgment as fo any legal right or Liability dependent on the existence of facts which he or she asserfs myst, prove that those facts exist.

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(2) When a person is bound fo prove the existence of any fact, it is said that the burden of proof lies on that person".

. . . D

Section 102 provides that;

"The burden of proof in a suif or proceedings lies on that person who would fail if no evidence at all were given on either side."

Section 103 provides;

"The burden of proof as fo any particular fact lies on that person who wishes the court fo believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person".

Section 104 provides;

"The burden of proving any fact necessary fo be proved in order fo enable any person fo give evidence of any other fact is on the person who wishes fo give that evidence."

The plaintiff in this case therefore has the duty to prove his case against the defendants on a balance of probabilities.

25 Issue 1: Whether the plaintiff's claim against the defendants is barred by the Limitation Act?

Preliminary objection No.1:

A preliminary objection was defined in the case of Mukisa Biscuits Manufacturing Co. Ltd v. West End Distributors Ltd (1969) E. A 696, where it was held that;

"A preliminary objection consists of an error on the face of the pleadings which arises by clear implication out of the pleadings and which, if argued as a preliminary objection may dispose of the suit."

A preliminary objection therefore if successfully established may dispose of an entire suit.

35 Counsel for the defendants submitted that the uncontroverted facts of the suit are that in 2002, the 1st defendant's predecessor, MTN entered into a lease agreement for 10 years ending 2012 with the plaintiff. That the plaintiff acknowledges that the suit against the 1t defendant is for continuing trespass starting on the 29t February, 2005 by the 15 defendant's predecessor who upon the termination of t?h%

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lease agreement continued to use the access road until the same rights were transferred to the 1% defendant.

The 1+t defendant however, contends that the suit is partially barred by the law of limitation and is only liable for alleged trespass which began on the 29t February, 2017 and the trespass claims against MTN expired on the 28 February, 2017.

Counsel for the plaintiff in rejoinder submitted that they issued a notice of intention to sue to the 1%t defendant's predecessor in 2012 on the 22nd of November, marked as PEX14 and this was also acknowledged by the defendants in their Written Statement of Defence under paragraph 9(4). That the plaintiff further took a step and instituted a suit against the 1t defendant's predecessor in

- 10 15 2015 who filed their defence and the file was eventually transferred to the High Court Mpigi vide Civil Suit No. 64 of 2016 where the suit was dismissed for service of expired Summons on 23/06/2017. The plaintiff then filed a fresh suit on 4/7/2017 and amended the same on 23/10/2017 and further amendment on 15/6/2018. Thus, the defendants cannot claim that the plaintiff's suit is barred by - limitation to the extent of the 1st defendant's predecessors.

Further, that the suit against the 1+t defendant's predecessors was instituted during the time of continued trespass within the prescribed time by law. That the 1st defendant in the instant case cannot claim that its predecessor had been in usage of the suit land for a period of 12 years unchallenged and the 1+ defendant too continued to trespass on the same. The suit is therefore not time barred.

I have carefully considered the submissions of both parties in this regard and the evidence on record to resolve this preliminary objection.

25 30 It is not in dispute that the 1st defendant's predecessor, MTN entered into a lease agreement for 10 years ending 2012 with the plaintiff, however, it was terminated on the 28t of February, 2005 due to the realization that the lease was entered over land that did not belong to the plaintiff but rather to Kamuli John. The lease was terminated by the plaintiff upon that realization. The plaintiff in this case however contended that upon termination of the lease the 1t defendant's predecessor continued using the suit land which is the access road until its rights were transferred to the 1% defendant.

The 1+ defendant on the other hand in its Written Statement of Defence averred that to access the mast its predecessor was using the access road which is on the land in issue whereof it was later discovered that the plaintiff had no interest therein. That the land belonged to John Kamuli and on 1% May, 2005 another lease

35 agreement was entered into with John Kamuli in respect of the same land for a period of 10 years. \_.#

The 2nd defendant in its Written Statement of defence stated that it had been in open usage of the access road created by MTN since 2007 which the plaintiff knew about and as such is estopped from interfering with this right.

Given the above background, it is my understanding that the termination of the lease agreement between the 1t defendant's predecessor and the plaintiff was upon the discovery that the land on which the masts had been placed belonged to John Kamuli and not the plaintiff. The access road however is on land that belongs to the plaintiff as was adduced in evidence by PW2 and confirmed by DW1.

The plaintiff also submitted that they had served MTN with the notice to intention to sue in 2012 and a suit was filed against them in 2015 which was before the expiry of the 12 years provided for under the Limitation Act.

It is my considered view that the 15t defendant's predecessor in the instant case even upon termination of the lease with the plaintiff continued using the access road from 2005 and the 1t defendant uses it to date because it is the only path leading to the masts situated on John Kamuli's land. In the circumstances the acts of the It defendant's predecessor being MTN and the 1t defendant constitute continuous trespass even if the plaintiff had not sued within the time frame provided for under the law, this action would still not be barred by limitation because the issue of limitation does not come into play in the instant case. This preliminary objection is hereby overruled.

Preliminary objection No. 2:

Counsel for the defendants submitted that during cross examination of PW1, he admitted that at the time he carried out the valuation on the suit land and authored the valuation report, he did not have a valid practicing certificate as a valuation surveyor for the year 2023. And, the surveyor was not licensed or registered to practice in Uganda contrary to the provisions of Section 19(3) of the Surveyors Registration Act. That the said Ngati Solomon at the time he carried out the survey had no license to practice surveying in Uganda therefore the report PEX13 cannot be relied upon in evidence. Counsel to support his submission quoted the cases of Uganda Muslim Supreme Council v. Namubiru Mary, HCT — 01 — CV — LD — 004

of 2015 at page 8 and Nsubuga v. Mukundane, CACA No. 208 of 2018. Counsel concluded that PW1's valuation report and his evidence all together should not be relied upon by the court as such they ought to be expunged from the court record.

Counsel for the plaintiff in response submitted that PW1 had been in practice for over 6 years by the time he carried out the valuation in the instant case and as such his expertise cannot be questioned just because he did not have a practicing certificate for a few days. That according to DEX5, a letter from the Surveyors

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Registration Board, it has a note to the effect that anyone not registered by the surveyors' registration Board is not licensed to practice any discipline of surveying in Uganda and doing so is illegal. Thus, carrying out a valuation without a practicing certificate does not invalidate ,the report since he is a registered , valuation surveyor in Uganda. Secondly, that in his valuation he did not solely rely on the boundary opening of Ngati to come up with his report. Counsel concluded that PW1's report cannot be dismissed for being illegal because at the time he had no practicing certificate because he had applied to renew the same.

10 It is not in dispute that PWT1 is a registered surveyor who can practice in Uganda, what is in contention is the fact that at the time he did the valuation he had no valid practicing certificate nor did one of the persons (Ngati) who carried out the survey; in the circumstances his survey and valuation report has no evidential value.

15 I therefore concur with the submissions for the defendants in this regard, the survey and valuation report marked as PEX13 is hereby disregarded by this court and accordingly expunged from the record. This preliminary objection is accordingly upheld.

## Issue 2: Whether the existing road constituted an easement for the 214 defendant?

25 Counsel for the plaintiff relied on the definition of an easement according to Black's law dictionary at Page 600, as; privilege, service or convenience which one neighbour has of another, by prescription, grant, or necessary implication, and without profit as a way over his land, a gate-way, water course. And in the case of Gawaya Tegule V. KCCA & Another, Civil Suit No. 214 of 2011, according to Meggary and Wade's text book titled, "The Law of Real Property", 8t Edition page 1245, it was stated that; common law recognized a limited number of rights which one land owner could acquire over the land of another, and these rights were called easements and profits, examples of easements are right of way, right of lights and right of water.

30 35 Counsel went on to submit that the plaintiff in the instant case is the registered proprietor of land comprised in Mawokota Block 298 Plot 29 measuring 10 hectares situate at Buyiwa State, Buwama, Sub-County in Mpigi District. And, according to paragraph 4 of the plaintiff's witness statement, on the 4% day of May, 2002 a lease agreement was entered on behalf of the plaintiff and MTN (U) the 1+ defendant's predecessor in title for a period of 10 years ending 2012 whereby the lessee (MTN) constructed on the land its mast on a portion of 20m x 20m and an access road to its telecommunication mast was created for the duration of the lease only. This was in conformity with clauses 6.5 and 10.1 of the lease agreement. Thus, the access road was created for the purpose of the lease agreement between /

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the plaintiff and the 1^st defendant's predecessor in title. That however, due to unforeseen circumstances the agreement proved unworkable and the working relationship between the parties ended on the 28^th February, 2005 and the 1^st defendant's predecessor ceased to exercise any right of use of the plaintiff's land.

- Further, that an alternative route was meant to be created on John Kamuli's land $\mathsf{S}$ with whom a lease agreement was entered and the same clauses provided. That the alternative route was not an easement. That according to PEX8, the $2^{nd}$ defendant's predecessors in title ought to have created and or constructed their own access road on the land of the person they entered into a lease with and compensation - agreement with. And during the locus in quo visit it was established that there is 10 only one entrance and exit through the plaintiff's land and it is being used solely by the defendants. Therefore, the $2^{nd}$ defendant cannot claim that the access road qualifies as an easement yet it was only created for the purposes of the agreement between the 1^st defendant's predecessor MTN (U) Ltd and the plaintiff. And, when - the same was terminated, the right to use the access road ceased as such it does not 15 constitute as an easement for the $2^{nd}$ defendant.

Counsel for the defendants conceded that the access road was created as a contractual easement in the lease agreement executed between MTN and the plaintiff.

It is not in dispute that the access road on the suit land was created due to the lease 20 agreement entered between MTN and the plaintiff.

An easement is essentially the legal right of a second party to cross or make limited 50 use of another person's property. It does not grant that person possession of someone else's land, but it does allow them to use it. Like any transfer of an interest in property, a grant of easement must be written, unless the easement has existed by prescription or implication. The duration of an easement may be perpetual. A perpetual easement will continue in operation and effect until terminated by an 55 act of the parties or by operation of law. In the case of Gawaya Tegule V. KCCA & Another, (Supra) it was stated that;

> "But there is a difference between having an access road traditionally or already in existence overtime from obtaining an access road by application under the Access Road Act. Justice Elizabeth Musoke in Paddy Musoke v. John Agard and 2 others, Civil Appeal No. 46 of 2016 and Civil Appeal No. 134 of 2017 furthernotes that one may enjoy an easement by virtue of the access to Roads Act Cap 350 or as a common law right as discussed above. But the Access to Roads Act, in the judge's view concerns situations where there has never existed an access road so that an application to construct one may be made."

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In the instant case the parties agreed that the party leasing would offer land for an access road at the expense of the lessee, the 21d defendant therefore ought to have constructed an access road on the land that his lessor had offered and not passing through the plaintiff's land. Therefore, the ex1stmg road does not constitute as an | casement for the 2% defendant. This issue is hereby resolved in favor of the

50 Issue 3: Whether the defendants' predecessors in title and themselves are trespassers on land comprised in Plot 29 Block 298 by way of electric wires, access road and underground fibers?

Counsel for the plaintiff submitted that according to PEXT under clause 6.4.1 it is provided that all such fixtures, fittings and equipment shall be removed by the lessee on the expiration or lessor termination of the lease.

55i 60 Clause 7 provides that; the lessor acknowledges that all equipment installed on the premises by the lessee, whether a mast, antenna, electronic equipment, fixtures and fittings or others, shall be deemed to be moveable property, and shall remain as the property of the lessee and that all such property does not and shall not accede to immovable property of the lessor unless the lessee advises the lessor accordingly in writing. Thus, the continued use of the plaintiff's land by the defendants and their predecessors in title by way of an access road, three phase high voltage electric power lines/wires and underground fibers amounts to trespass even after the 1% defendant's predecessor entered into a lease agreement with Kamuli John.

65 70 Further, that the 21d defendant has also continued to use the disbanded road even after the termination of the initial lease with the plaintiff with its predecessors. That the continued unlawful use of the plaintiff's land by the defendants has widened the access road beyond the prior agreed limits of 4 x 4 feet. And, that there are heavy trucks which have made dangerous deep holes on the plaintiff's land and interfered with the plaintiff's establishment on the land such as destruction of the school's pit latrine, cutting down of a substantial number of eucalyptus trees and fruit trees for which the plaintiff claims special damages. That the plaintiff's evidence on trespass was corroborated by DW1 who visited the suit land to determined the extent of trespass on the same by the defendants. That it was further the evidence of DW1 that the 27 defendant was acquired by ATC and

75 according to DEX9, on the 1¢t January, 2018, the 1t and 27 defendant companies amalgamated and according to Sections 233 and 240 of the Companies Act, the defendants are liable for the acts of trespass on the plaintiff's land despite the amalgamation of the two companies. The liability is also for their predecessor's acts of trespass.

plaintiff.

Counsel for the defendants on the other hand submitted that in regard to the alleged trespass against the 15t defendant it was DW1's uncontroverted finding in her report that the access road which traverses the plaintiff's land measures approximately 0.6km from the corner of the second gate of St. Balikuddembe, Primary School up to the mast. That there are only 3 manholes passing through the suit land and the power line is approximately 1.5 Kilometers over the plaintiff's land. Thus, DW1's report is the true representation of the market value of damages, from the 29 February, 2017 to the date of filing of the suit.

10 15 In regard to the 21 defendant, that on the 6% February, 2008, Africell entered into a lease agreement to establish a mast on the land comprised in Mawokota Block 301 Plot 117 owned by Leonard Kiragga Namwama. Africell did not use the access road created by MTN but rather an access road through John Kamuli's land and he was compensated for the same. Thus, no evidence was adduced by the plaintiff to show that Eaton, Africell and Airtel used the access road to access their mast over the period in issue until Eaton Towers (U) Ltd merged with ATC.

Counsel for the plaintiff reiterated that during the locus in quo visit it was observed that there is only one entrance exclusively used by the defendants. That if indeed the land belongs to John Kamuli, the defendants should have constructed the access road thereon. Counsel concluded that the defendants and their predecessors in title are trespassers on the suit land.

In this regard I agree with submissions for the plaintiff and his evidence was corroborated by DW1. The 2" defendant also confirmed that they had been utilizing the access road since 2007 and as such the plaintiff cannot interfere with their right to utilization of the same. The suit land therefore has an access road, three phase high voltage electric power lines/wires and underground fibers which belong to the defendants and this amounts to trespass since it has remained in their utilization even after the 1% defendant's predecessor entered into a lease agreement with Kamuli Joseph. And it is not true that the land on which the access road is belongs to Kamuli Joseph, because it is the same road that was created by MTN

- 30 when it entered into a lease agreement with the plaintiff. It was also part of the lease agreement terms between the plaintiff and MTN that upon termination of their lease that the fixtures of the lessee would be removed off the land which has not been the case in this matter. The defendants' three phase high voltage electric power lines/wires and underground fibers have remained on the plaintiff's land - 35 and the same is still being used as an access road by the defendants. Thelst defendant is also liable for its predecessor's acts of trespass from 2008 29/May/2012 as the date of assignment and from that date todate on the defendant's own part. to st

I therefore find that the defendants' predecessors in title and themselves are trespassers on land comprised in Plot 29 Block 298 by way of electric wires, access road and underground fibers. This issue is hereby resolved in the affirmative.

## . . Issue 4: What remediés are available to the parties?

- The plaintiff prayed for a declaration that the access road does not constitute as an easement. It was conceded by counsel for the defendants that the access road was constructed as a contractual easement upon MTN entering into a lease agreement with the plaintiff. - 10 A declaration that the defendants are trespassers on the suit land. The defendants in the instant case continued utilizing the suit land even after entering a lease agreement with Kamuli Jospeh who should have provided them with an access road which is not the case. As such the defendants are trespassers on the suit land.

General damages for trespass and relied on the cases of Dennis Desire Mitti v. Patrick Ssewagude Musoke & 3 Others, C. S No. 449/2016 which referred to the case of Takya Kuahwahiri & Another v. Kajongu Denis, C. A. C. A No. 85 of 2011 and Uganda Commercial Bank v. Kigozi (2002)1 E. A 35 on what constitutes general damages and how their quantum should be assessed. Counsel prayed for UGX 75,000,000/= being the current market value of the land with interest at the court rate. And general damages to a tune of UGX 100,000,000/= due to the loss suffered, inconvenience and embarrassment caused by the actions of the defendants.

25 Counsel for the defendants on the other hand submitted that this litigation arose out of the plaintiff's error when it misrepresented to MTN that it owned the land whereas not. That PW1 confirmed that it was for that reason that the initial lease was terminated with MTN. Thus, the plaintiff cannot benefit from its own misrepresentation and for trespass that was never brought to the attention of the defendants. That the alleged trespass was only found out by the defendants upon the filing of this suit and the only notice that would have helped mitigate the damage was addressed to MTN on the 2214 November, 2012 according to PEX14.

30 That the claim on general damages is unfounded since the subject matter in the instant case is the cable wires, the power line and the access road up to the mast (6 meters wide and approximately 0.6 kilometers in length) and not the whole of Plot 29. Thus, the value of the encroachment by the access road and cable instalment was rightly assessed by DW1 in the valuation report marked DEX4 at

35 UGKX 33,122,929/=. To support his submission, counsel relied on the cases of Ruth Simwogerere v. George William Charles Sserwadda, HCCS No. 244 of 2015 and Nasela & Mukakaik Ltd v. Kenya Urban Roads Authority & 2 Others; Coun% :

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Government of Kitui (interested party) (Environment and Land Appeal 13 of 2021) [2023] KEELC 21544 (KLR) (31 October, 2023).

It is my considered opinion that the plaintiff in the instant case upon realization tHat the land on which the masts were installed did not belong to it, informed MTN and the lease was accordingly terminated. And this discovery happened upon opening of boundaries, I am thereof inclined to believe that there was no deliberate misrepresentation on the part of the plaintiff.

In regard to the value of the suit land, I order that a joint valuation be conducted by the government valuer and the current market value be determined which will be compensated to the plaintiff at an interest rate of 6% per annum which is the court rate, from the date of delivery of this judgment till payment in full. Valuation is specifically for the damage occasioned on the suit land and the access road as is being utilized by the defendants and not the entire land belonging to the plaintiff.

15 20 In regard, to general damages, I find UGX 100,000,000/= as prayed for on the higher end in this case. Since the trespass has continued from 2005 to date which is a period of about 20 years, I find UGX 50,000,000/ = is sufficient in this case given the extent of damage that has been effected on the land and the acts of trespass by the defendants from the date of 29% February 2005 after the lease was terminated. General damages of UGX 50,000,000/= are hereby awarded at an interest of 6% per annum from 29 February 2005 till payment in full.

The plaintiff also prayed for Special damages to a tune of UGX 25,200,000/ = and mesne profits to a tune of UGX 873,961,289/= as per PEX13 which is the valuation report which was based on the lease agreement between the plaintiff and the 15t defendant's predecessor in title (MTN) marked as exhibit PEX1 which under clause 2.1 provided for a yearly rental as US \$ 4200 and the above computation is

25 for all the years that the defendants have been trespassing on the suit land.

Counsel for the defendants while relying on the case of Kiyega Constance v. Jamil Nazir, HCCS No. 361 of 2014, submitted that special damages must be specifically pleaded and proved. That in the instant case, the plaintiff has not proved any of the special damages and prayed that this court rejects all the claims for special damages.

In regard to mesne profits, counsel for the defendants submitted that any rent being paid by the defendants or their predecessors to John Kamuli was at all material times not a profit but an expense incurred to maintain the masts on Plot 30. (See: Vivo Energies (U) Ltd v. Lydia Kisitu, SSCA No. 7 of 2015).

Counsel concluded that the plaintiff's claim for mesne profits is untenable because the defendants or their predecessors have never received this rent which is bemé ,

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termed as a profit. Counsel relied on the case of Umayun Dhaurajgir v. Ezra Aboody, 2008 (6), where it was held that;

"It is settled law that while ascertaining mesne profits the test fo be applied Is not what the landlord has losf or would have earned by letting out or using the property himself buft the test is what the wrongful occupant had actually received."

Counsel added that the plaintiff in the instant case has not adduced any evidence to prove the profits received by the defendants or their predecessors arising from the access road, the fiber cables, and the power line. Thus, the plaintiff failed in its duty to enable the court assess the mesne profits earned by the defendants and court cannot grant mesne profits based on speculation.

Counsel further submitted that PEX13 is exaggerated and cannot be relied upon because it is illegal. And, that the location of the access road and fiber cables is a sparsely populated area and not prime land and on John Kamuli's land so the rent applicable to the masts is not applicable to the plaintiff's land where the access

road and cables are. As such, the claim for mesne profits should be rejected.

Counsel for the plaintiff in rejoinder contended that the estimated value by DW1 of UGX 33,122,929 is baseless since she did not survey the suit land as a whole and the witness did acknowledge during cross examination that she did not measure the power wire (the three phase electric power line/wires) and the underground fibers/cables and did not know how the three masts came about. Thus, the valuation report is short of knowledge/information of the damages caused on the suit land as a whole.

25 30 I concur with the submissions for the defendants in regard to special damages and mesne profits in this case. The plaintiff has not specifically proved the special damages even though the same were pleaded under his claims nor did he prove the mesne profits obtained by the defendants as a result of using the access road. The rent claimed was reached between the plaintiff and MTN on the understanding that the same was being paid for the land where the masts were constructed and the access road. The rent was not exclusively for the access road as such the plaintiff cannot claim a yearly rental as US \$ 4200. I therefore decline to award the same.

I find that the plaintiff has proved his case as against the defendants on a balance of probabilities, judgment is hereby entered in the following terms;

1. A declaration that the access road does not constitute an easement for the defendants. =

- A declaration that the defendants are trespassers on the suit land comprised in Plot 29 Block 298 by way of electric wires, access road and underground fibers. - General damages to a tune of UGX 50,000,000/ = have been awarded to the plaintiff at an interest rate of 6% per annum from the 29% February, 2005 till payment in full. 3. - . Anorder is hereby issued for a joint valuation at a shared cost by both parties to be conducted by the government valuer so as to determine the current market value of the access road and the damage caused on the suit land; the sum determined is to be paid by the defendants as compensation to the plaintiff at an interest rate of 6% per annum from the date of delivery of this judgment until payment in full. 4 - . An order is hereby issued that the joint valuation under (4) above be conducted within a period of two months from the delivery of this judgment. 5 - There after the parties can enter into a fresh lease agreement to formalize their working arrangement over the access road, the electric wires and the underground fibers. - Costs of the suit are hereby awarded to the plaintiff. 6.

I so order. Right of appeal explained.

OYUKO ANTHONY OJOK

JUDGE

18 /0 6/2025

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