Wakilii

Kibirige and 12 Others v Muwonge (Civil Suit No. 58 of 2014)

High Court · [2022] UGHCLD 24 · 2022 Judgment for Plaintiffs (Trespass Established; Eviction Declined) AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit claiming trespass to land and unlawful demolition of structures
Decision
Defendant found liable for trespass and unlawful demolition; damages and compensation awarded; eviction order declined

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the plaintiffs were neither bonafide occupants nor customary tenants under the Land Act, having failed to prove 12 years' occupation before 1995 or relevant custom. However, the plaintiffs established prior de facto possession of the suit land. Against a defendant who did not claim ownership or prove possession before the plaintiffs, the court found the defendant liable for trespass and unlawful demolition. A de facto possessor can maintain trespass against a wrongdoer who cannot invoke jus tertii. General and aggravated damages totalling UGX 600 million and compensation of UGX 400 million were awarded. The eviction order was declined as the plaintiffs could not prove better title than the registered owner.

Outcome

Defendant found liable for trespass and unlawful demolition; damages and compensation awarded; eviction order declined

Facts

The plaintiffs claimed ownership of a kibanja at Mengo Kisenyi measuring 100 feet by 120 feet, allegedly purchased by their late husband and father in 1984. They established a hardware shop and residential rooms on the property and collected rent. In December 2013, the defendant allegedly trespassed on the suit property, demolished a commercial building with 35 rooms, destroyed properties therein, and fenced the area with iron sheets. Court bailiffs lawfully demolished structures on plot 925 on 26 December 2013 pursuant to a warrant. On 27 December 2013, the plaintiffs alleged that the defendant's agents demolished their house on the adjacent suit property (plot 1580). The defendant refused to cooperate in a court-ordered joint survey. The plaintiffs had occupied the suit property since 1984 and carried on business activities there until dispossession.

Issues

  1. Whether the Plaintiffs are the lawful owners of the suit property.
  2. Whether the Defendant illegally demolished the Plaintiff's property.
  3. Whether the Defendant is a trespasser on the suit property.
  4. What are the available remedies?

Orders

  • Declaration that the Plaintiffs are not bonafide/customary tenants on the suit property refused.
  • Declaration granted that the Defendant is a trespasser on land located at Mengo Kisenyi measuring about 100 feet by 120 feet.
  • Eviction order against the Defendant declined.
  • General damages of UGX 400,000,000 awarded to the Plaintiffs.
  • Aggravated damages of UGX 200,000,000 awarded to the Plaintiffs.
  • Compensation of UGX 400,000,000 awarded for the demolished structure.
  • Costs of the suit awarded to the Plaintiffs.
  • Application in Misc. Appln. No. 2400 of 2021 to reopen defence case dismissed with each party bearing its own costs.
  • Witness statements of John Bosco Muwonge and Nyiro Joseph expunged from the record.

Rules and key headnotes

Land Law — Bonafide Occupants — 12-Year Occupation Requirement
A bonafide occupant under Section 29(2) of the Land Act must prove occupation and utilisation of land unchallenged by the registered owner for 12 years or more before the coming into force of the 1995 Constitution. A person who occupied land from 1984 to 1995 does not meet the 12-year requirement.
Land Law — Customary Tenants — Proof of Custom
A person claiming to be a customary tenant under Section 29(1) of the Land Act must prove that in the area where the suit land is located, it is a custom that whoever carries out certain activities for a specific period becomes a customary owner. Native custom must be proved in evidence where it is neither notorious nor documented.
Trespass to Land — Possession Against Wrongdoer — Jus Tertii
Trespass to land is a claim against possession, not ownership. A defendant cannot set up the right of the true owner (jus tertii) to justify infringement of the plaintiff's de facto possession unless he committed the entry by the owner's authority. Any possession is legal possession against a wrongdoer. De facto possession without legal title is sufficient to maintain an action in trespass against a third-party wrongdoer.
Land Law — Possession — Proof of Exclusive Possession
Possession signifies an appropriate degree of exclusive possession. It is proved by showing that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no one else has done so.
Land Law — Recovery of Land — Better Title Requirement
In an action for recovery of land or eviction, the plaintiff recovers possession by the strength of his or her own title without regard to the weakness of the defendant's title. Where the plaintiff seeks an order of eviction, he or she must prove a better title to the land than the defendant. If the defendant proves title or possession in a third party prior to the plaintiff, the plaintiff cannot recover possession even where the plaintiff held prior de facto possession against the defendant.
Damages — General Damages — De Facto Possessor
A de facto possessor of land is entitled to recover the same measure of damages as if he or she were the owner. Possession is, as against the wrongdoer, prima facie evidence of ownership which cannot be displaced by merely showing that the possession was not derived from any person with ownership.
Damages — Aggravated Damages — Malice and Arrogance
Where damages are at large and the court is making a general award, it may take into account factors such as malice or arrogance on the part of the defendant and injury suffered by the plaintiff, such as humiliation or distress. Damages enhanced on account of such aggravation are regarded as still being essentially compensatory in nature.

Legislation cited (7)

  • Land Act Cap.227 s.29(1)
  • Land Act Cap.227 s.29(2)
  • Land Act Cap.227 s.29(5)
  • Land Act Cap.227 s.35
  • Evidence Act Cap.6 s.101(1)
  • Evidence Act Cap.6 s.115
  • Civil Procedure Rules O.18 r.5A(5)

Cases cited (22)

  • Serwanga v Tamale and Others (HCMA No. 403 of 2011)
  • Uganda Petroleum Co Ltd v Kampala City Council (Civil Suit No. 250 of 2005)
  • Sonde v Uganda (CACA No. 278 of 2003)
  • Sawoabiri and Another v Uganda (SCCA No. 5 of 1990)
  • Kampala District Land Board and Another v Babweyaka and 3 Others (SCCA No. 2 of 2007)
  • Uganda Electricity Board v Musoke (SCCA No. 30 of 1993)
  • Nakagiri Nakabega and Others v Masaka District Growers [1985] HCB 38
  • Lutaaya v Sterling Civil Engineering Co (SCCA No. 11 of 2002)
  • Newington versus Windeyer (1985) 3 NSWLR 555
  • Graham versus Peat [1801] 1 East 244
  • National Provincial Bank Ltd versus Ainsworth [1965] AC 1175
  • Nicholls versus Ely Beet Sugar Factory [1931] 2 Ch 84
  • Omito Luka and Others v Attorney General (HCCS No. 73 of 2004)
  • Does D. Johnson versus Baytup (1835) 3 A. & E. 118
  • Clarideg versus MacKenzie (1842) 4 M. & G. 142
  • Asher versus Whitock (1865) L.R. 1 Q.B.1
  • Fawley Marine (Emsworth) Ltd versus Gafford [1968] 2 Q.B 618
  • Acire v Engola (HCCS No. 143 of 1993)
  • Uganda Commercial Bank v Kigozi [2002] 1 EA 305
  • Eastern Construction Co versus National Trust Co. [1914] A.C. 197
  • Obongo v Kisumu Municipal Council [1971] EA 91
  • Zaabwe v Orient Bank Ltd and Others (SCCA No. 4 of 2006)

Full judgment

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

Kibirige_and_12_Others_v_Muwonge_(Civil_Suit_No._58_of_2014)_[2022]_UGHCLD_24_(14_February_2022)
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.