Wakilii

Havinder v Asea & Anor (Civil Appeal No. 0008 of 2016) 2017 UGHCLD 22 (2017-03-10)

High Court · [2017] UGHCLD 22 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from Grade One Magistrates Court judgment dismissing claim for recovery of land and trespass
Decision
Appeal allowed; appellant awarded damages for trespass but denied eviction and permanent injunction due to expiry of lease

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court allowed the appeal and held that the respondents had trespassed on the appellant's land. The court found that the appellant, as registered proprietor of plot 18 Weatherhead Park Lane under a lease granted by Arua District Land Board, had proved ownership and possession. Survey evidence established that the respondents' perimeter wall and small house intruded onto plot 18. Although the respondents claimed their developments were on land they acquired by allocation or purchase, neither claim properly accounted for the proven intrusion. The court rejected claims for eviction and permanent injunction because the appellant's lease had expired, but awarded general damages of UGX 30,000,000 for the 21-month period of trespass.

Outcome

Appeal allowed; appellant awarded damages for trespass but denied eviction and permanent injunction due to expiry of lease

Facts

The appellant purchased plot 18 Weatherhead Park Lane in 2007 and obtained a five-year lease from Arua District Land Board in 2011. He fenced the plot and deposited construction materials. The respondents held a 1996 allocation letter for adjacent plot 11 Ahmed Awongo Close from Arua Municipal Council and constructed a perimeter wall and buildings. Survey evidence revealed that plot 11 remained un-surveyed and existed only on municipal layout plans, while plot 18 was a properly surveyed and titled plot. Surveyors found that the respondents' perimeter wall and a small house intruded onto plot 18, enclosing approximately 9/10 of the appellant's plot. The respondents claimed their developments were either on plot 11 or on part of adjacent plot 16 which they said they purchased from Ahmed Awongo in 2008. The appellant issued notice to vacate in February 2012 and filed suit in June 2013. By the time of judgment, the appellant's lease had expired on 1 November 2013.

Issues

  1. Whether the trial magistrate erred in failing to find that the respondents had trespassed on the appellant's land when surveyors confirmed intrusions onto plot 18 Weatherhead Park Lane.
  2. Whether the trial magistrate erred in holding that plot 18 Weatherhead Park Lane was not available for leasing at the time the appellant acquired it because the respondents were already in possession.
  3. Whether the respondents departed from their pleadings by introducing evidence of purchasing part of plot 16 Weatherhead Park Lane from Ahmed Awongo.
  4. Whether the trial magistrate erred in holding that part of the suit land forms part of plot 16 Weatherhead Park Lane and is owned by the respondents.
  5. Whether the appellant proved trespass to his land on the balance of probabilities.
  6. Whether the trial magistrate erred in awarding costs of two counsel without justification.

Orders

  • Appeal allowed.
  • Judgment and orders of the trial court set aside.
  • Judgment entered for the appellant against the respondents jointly and severally for UGX 30,000,000 as general damages for trespass to land.
  • Appellant awarded costs of both the appeal and of the trial.

Rules and key headnotes

Land tenure — registered leases — conclusiveness of certificate of title — burden of proof
Under section 59 of the Registration of Titles Act, a certificate of title is conclusive evidence of ownership. A registered proprietor's title can only be impeached on grounds of fraud properly pleaded and proved. Where a party holds a registered lease from a District Land Board, that party has proved a superior title to the land over a party relying on an unregistered allocation letter from a Municipal Council whose authority to allocate the land is not established.
Land tenure — District Land Boards — devolution of powers under Constitution 1995 — capacity of Municipal Councils to allocate land
Following the promulgation of the Constitution of the Republic of Uganda 1995, article 241(1)(a) and section 59(1) of the Land Act conferred the power to hold and allocate land in the district which is not owned by any person or authority unto District Land Boards. When a Municipal Council issues a letter of allocation after 1995, it acts without capacity since those powers have by operation of law been transmitted to the District Land Board. A party cannot acquire a valid interest in land from an institution not proved to have had any form of title vested in it.
Land tenure — tenancy at sufferance — effect of allocation letters before lease registration
Under rule 10 of the Public Lands Rules S.I. 201-1 (in force until 2001), occupation or use by a grantee or lessee of land which a controlling authority has agreed to alienate shall until registration of the grant or lease be on sufferance only and at the sole risk of such grantee or lessee. A tenant at sufferance is one who entered upon land by lawful title and after that title ended continues in possession without statutory authority and without obtaining consent of the person then entitled. An offeree of a lease from a Controlling Authority did not acquire an interest in the land until actual registration of that lease and could be ejected at any time without notice.
Pleadings — departure from pleadings — when departure causes prejudice — duty to apply to amend
Where a departure from pleadings will cause prejudice, it is in the interests of justice that the other party should be entitled to insist that such evidence is not permitted unless the pleading is appropriately amended. However, where the departure causes no prejudice, or where for some other reason the court if asked is likely to give permission to amend, the other party may be sensible not to raise the point. Not every departure is fatal. A party who through cross-examination elicits evidence unfavourable to his or her case, even where that evidence constitutes a departure from the opponent's pleadings, cannot be heard to complain that such evidence is unfair, as it is effectively that party's own evidence.
Trespass to land — elements of the tort — possession required — registered proprietor taking physical control
Trespass to land requires proof that the plaintiff was in possession at the time of trespass, there was an unauthorised entry by the defendant, and the entry occasioned damage. Possession for purposes of trespass is proved by evidence establishing physical control over the land by way of sufficient steps taken to deny others from accessing it. Uncontested evidence that a plaintiff fenced land and placed building materials thereon establishes not only an expression of intention to control the land but also physical control over it. A registered proprietor who takes such steps has proved possession.
Trespass to land — mistake as to boundaries — honest belief not a defence
Trespass may be committed even when a trespasser makes a mistake regarding the title or boundaries of his land and undertakes activities on an adjoining neighbour's property thinking he is on his own property. A suit for trespass to land may be maintained whether the defendant committed the entry unwittingly or wilfully and wantonly. Trespass is committed by entering, intruding, or encroaching on personal property, and no tortious intent is required, but what is required is volition — a conscious intent to do the act that constitutes the entry upon someone else's property.
Trespass to land — general damages — assessment where trespass actionable per se — levels of damages
Trespass to land is actionable per se and without proof of actual damage courts award nominal damages. Where actual damage is proved, damages are at large and the court reaches an intuitive assessment taking all relevant circumstances into account. The defendant's conduct is key: if the trespass was accidental or inadvertent, damages are lower; if wilful, damages are greater; if the result of negligence or indifference, damages are in-between. Where a trespass begins as accidental but degenerates to negligence and indifference approaching cynical disregard of property rights, damages should reflect the repulsion with which the law countenances such conduct and compensate for lost use of land, lost opportunities, and expenditure incurred.

Legislation cited (9)

Cases cited (20)

  • Father Nanensio Begumisa and three Others v Eric Tiberaga (SCCA 17 of 2000)
  • Nyumba ya Chuma Ltd v Uganda Land Commission and another (Const. Petition No. 13 of 2010)
  • Remon v City of London Real Property Company Limited [1921] 1 KB 49
  • Esso Petroleum Company Limited v Southport Corporation [1956] AC 218
  • Boake Allen Ltd v Revenue and Customs Commissioners [2006] EWCA Civ 25
  • Loveridge and Loveridge v Healey [2004] EWCA Civ 173
  • Kahigiriza James v Busasi Sezi [1982] HCB 148
  • Opika-Opoka v Munno Newspapers and Another [1988-90] HCB 91
  • Lukyamuzi Eriab v House and Tenant Agencies Limited [1983] HCB 74
  • Uganda Breweries Ltd v Uganda Railways Corporation [2002] 2 EA 634
  • Waghorn v Wimpey (George) and Co [1969] 1 WLR 1764
  • Peters v Sunday Post Ltd [1958] EA 429
  • Ocean Estates Ltd v Pinder [1969] 2 AC 19
  • James Sawoabiri and another v Uganda (S.C. Criminal Appeal No. 5 of 1990)
  • Pioneer Construction Co Ltd v British American Tobacco (HCCS No. 209 of 2008)
  • Dr Adeodanta Kekitiinwa and three others v Edward Maudo Wakida (C.A. Civil Appeal No. 3 of 2007)
  • 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
  • Lancaster v. Blackwell Colliery Co. Ltd (1918) WC Rep 345

Full judgment

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Havinder v Asea & Anor (Civil Appeal No. 0008 of 2016) 2017 UGHCLD 22 (2017-03-10)
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.