Wakilii

Draza v Aderubo (Civil Suit No. 0003 of 2016)

High Court · [2017] UGHCLD 86 · 2017 Judgment for Plaintiff AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for trespass to land and permanent injunction
Decision
Trespass established; defendant ordered to remove encroaching wall within thirty days; permanent injunction granted

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court held that the defendant trespassed on the plaintiff's land by constructing a wall that encroached one foot onto the plaintiff's plot. The court ruled that once parties obtain registered titles with deed plans, boundary disputes must be resolved by reference to Cartographic Survey maps, not local practices. Trespass may be committed even when a defendant mistakenly undertakes activities on adjoining land thinking it is their own property. The plaintiff was awarded general damages, costs, an order for demolition of the offending wall, and a permanent injunction.

Outcome

Trespass established; defendant ordered to remove encroaching wall within thirty days; permanent injunction granted

Facts

The plaintiff purchased plot 88 at Onduparaka Trading Centre in 1999 and obtained a leasehold title in 2004. The defendant subsequently purchased adjacent plot 87. Both plots were initially unsurveyed when buildings were constructed. The defendant constructed a ten-foot high wall at the front that extended from his building and abutted onto the plaintiff's building, effectively sealing off a two-foot corridor between the two structures. The wall encroached approximately one foot onto the plaintiff's plot. The plaintiff discovered the encroachment upon returning from Sudan and attempted amicable settlement without success. A locus in quo visit confirmed the encroachment. The defendant claimed he constructed the wall in 2000 when both buildings were already joined at the front.

Issues

  1. Whether the defendant is a trespasser on the plaintiff's land.
  2. Whether the plaintiff is entitled to the reliefs sought.

Orders

  • The defendant trespassed on the plaintiff's land.
  • The plaintiff is awarded general damages of UGX 4,500,000.
  • The plaintiff is awarded costs of the suit.
  • The defendant is given thirty days from the date of this judgment to pull down the offending part of his wall, failing which enforced demolition by court shall ensue.
  • A permanent injunction is issued restraining the defendant, his servants, agents, successors in title and persons claiming under him from further acts of trespass on the plaintiff's land.

Rules and key headnotes

Boundary Disputes — Resolution by Reference to Title Deed Plans
Where parties to a boundary dispute hold registered titles with deed plans based on Cartographic Survey maps, the boundary must be determined by reference to those deed plans, not by reference to local practices or customs regarding spacing between buildings, even where such practices are widely observed.
Boundary Disputes — Hedge and Ditch Presumption — Inapplicability
The common law presumption regarding boundaries between hedges and ditches (that the person who dug the ditch dug it at the extremity of their land) is irrelevant and does not apply where parties hold registered titles with deed plans showing the boundaries.
Trespass to Land — Mistaken Belief as to Boundaries
Trespass to land may be committed even when a defendant makes a mistake regarding the title or boundaries of their land and undertakes activities on an adjoining neighbour's property thinking they are on their own property. A suit for trespass may be maintained whether the defendant committed the entry unwittingly or wilfully.
Trespass to Land — Continuing Tort — Limitation
The tort of trespass to land is a continuing tort. For each day the wrongful entry continues, a new cause of action arises. The issue of limitation cannot arise for as long as the wrongful act or activities complained of continue, except that damages recoverable are only those arising within the limitation period.
Trespass to Land — Damages Assessment — Actionable Per Se
Trespass to land is actionable per se without proof of actual damage. Where actual loss is not proved, courts award nominal damages. Where trespass has caused actual damage or the defendant has made use of the plaintiff's land, the plaintiff is entitled to compensation including mesne profits. The defendant's conduct determines the quantum: accidental trespass attracts lower damages, wilful trespass attracts higher damages, and negligent or indifferent conduct attracts intermediate damages.
Estoppel by Acquiescence — Requirements Not Met
A defendant cannot successfully plead estoppel by acquiescence where the plaintiff's delay in bringing suit does not amount to implied consent to the defendant's activities, particularly where the tort of trespass is continuing and each day gives rise to a fresh cause of action.

Legislation cited (1)

Cases cited (19)

  • Polyfibre Ltd v Matovu Paul and others (High Court Civil Suit No. 412 of 2010)
  • Oola Lalobo v Okema Jakeo Akech (High Court Civil Suit No. 20 of 2004)
  • Justine Emiru Lutaya v Sterling Civil Engineering Co Ltd (Supreme Court Civil Appeal No. 11 of 2002)
  • Mitwalo Magengo v Medard Mutyaba (Supreme Court Civil Appeal No. 11 of 1990)
  • Eria Milling Project Limited v Wade Palms Construction Limited (High Court Civil Suit No. 707 of 1991)
  • [1936] 2 KB 434
  • Christopher Katongole v Yusufu Ssewanyana [1990-1991] KALR 41
  • [1998] 1 WLR 881
  • [1939] 1 KB 666
  • [1958] 1 QB 60
  • [1810] 3 Taunt 137
  • [1918] 1 Ch 232
  • [2011] EWHC 1362 (Ch)
  • Atlantic Coal Co. v. Maryland Coal Co. (1884), 62 Md. 135 at 143
  • Gore v. Jarrett (1949), 192 Md. at 516, 64 A.2d at 551
  • Barton Coal Co. v. Cox (1873), 39 Md. 24 at 29-30
  • James Fredrick Nsubuga v Attorney General (High Court Civil Suit No. 13 of 1993)
  • Erukana Kuwe v Isaac Patrick Matovu and another (High Court Civil Suit No. 177 of 2003)
  • Captain Sam Masaba Ronald v Godfrey Werishe (High Court Civil Suit No. 003 of 2015)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Draza v Aderubo (Civil Suit No. 0003 of 2016) [2017] UGHCLD 86 (22 June 2017)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.