Wakilii

Mawanda and 2 Others v Nanyonga (Civil Suit No. 127 of 2018)

High Court · [2023] UGHCLD 22 · 2023 Judgment for Plaintiff AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for permanent injunction, eviction order, mesne profits, general damages and costs arising from alleged trespass on estate land
Decision
Plaintiffs' claim succeeded. Defendant ordered to vacate all land except 3 acres attributable to the estates of Nakato and Magadu. General damages and costs awarded to plaintiffs.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the defendant was a trespasser on the majority of the land she occupied. While the estates of the late Eckisa Nakato and Magadu acquired equitable interest through adverse possession over approximately 3 acres with the acquiescence of the late registered owner, the defendant had no authority to deal with those estates without letters of administration. The defendant's occupation of additional land beyond the 3 acres constituted unlawful encroachment. The court awarded the plaintiffs general damages of UGX 20,000,000 with interest at 12% per annum from judgment, and ordered that land illegally occupied by the defendant revert to the estate of the late Biremire.

Outcome

Plaintiffs' claim succeeded. Defendant ordered to vacate all land except 3 acres attributable to the estates of Nakato and Magadu. General damages and costs awarded to plaintiffs.

Facts

The plaintiffs, administrators of the estate of the late Erusani Takamazire Biremire, sued the defendant for trespass on land comprised in Butuli Block 726, plot 8 at Erima and Kisengi, registered in the name of their late father in 1965. The defendant claimed to be a bona fide occupant, asserting that her father Magadu and paternal aunt Eckisa Nakato had jointly occupied a portion of the land since 1953, before the late Biremire obtained title. The plaintiffs alleged that the defendant entered the land around 2013, cut down trees, blocked access roads, and expanded her occupation without consent. The defendant admitted she was a caretaker of her aunt's property but had no letters of administration for either her aunt's or father's estate. A survey conducted in 2021 showed the defendant occupied approximately 14.91 acres within the registered land. The court conducted a locus visit. Evidence showed that the late Biremire had allowed various settlers to occupy portions of his land without payment of busuulu, and that the defendant had expanded her occupation beyond what her predecessors had occupied.

Issues

  1. Whether the defendant is a trespasser on the land comprised in Butuli Block 726, plot 8 at Erima and Kisengi.
  2. Whether the defendant is a bona fide and/or lawful occupant of the suit land.

Orders

  • The estates of the late Eckisa Nakato and Magadu are entitled to only 3 acres of the land comprised in Butuli Block 726, plot 8, land at Erima and Kisengi.
  • The rest of the land illegally occupied by the defendant reverts to the estate of the late Biremire.
  • The plaintiffs are awarded UGX 20,000,000 as general damages.
  • Interest of 12% per annum payable from the date of delivery of this judgment till payment is made in full.
  • Costs of the suit awarded to the estate of the late Biremire.

Rules and key headnotes

Trespass to Land — Elements of Proof
To prove trespass to land, a plaintiff must establish that the disputed land belonged to him, that the defendant entered upon that land, and that the entry was unlawful in that it was made without permission or that the defendant had no claim, right or interest in the land.
Burden of Proof — Civil Cases
The burden of proof lies upon the person who alleges a fact and wishes the court to believe in its existence. A plaintiff must furnish evidence whose level of probity is such that a reasonable person might hold more probable the conclusion which the plaintiff contends, on a balance of probabilities.
Bona Fide Occupancy — Requirements under Land Act
An occupant of land seeking protection as a bona fide occupant under section 29(2)(a) of the Land Act must prove that he had been in possession for a minimum of 12 years without any challenge to such occupation before the coming into force of the 1995 Constitution.
Adverse Possession — Preconditions
Before a court can consider a person to be an adverse possessor, the following preconditions must be satisfied: factual possession of the land with physical control; continuous possession for at least 12 years uninterrupted; animus possidendi (intention to possess to the exclusion of all others including the legal owner); possession must be adverse without legal entitlement or the owner's consent; possession must be peaceful, exclusive, open and notorious so as to put the owner on notice; and possession must start with a wrongful disposition of the rightful owner.
Authority to Deal with Estate Land — Letters of Administration Required
A person who claims to be a caretaker of estate property has no authority to deal with that estate without letters of administration, even where the deceased may have acquired equitable interest in land through adverse possession or acquiescence of the registered owner.
General Damages — Assessment in Trespass Cases
General damages are those which the law presumes to arise from the direct, natural or probable consequences of the act complained of. In trespass cases, where a defendant rejects efforts at amicable resolution, acquires more land during the pendency of proceedings, and distributes portions of disputed land, such acts merit an award of general damages.
Documentary Evidence — Inconsistencies Affecting Credibility
Where a party's pleadings contain a material inconsistency with documentary evidence tendered (such as conflicting dates of birth in pleadings versus a baptism certificate), the court may disregard that part of the evidence as the inconsistency taints the truthfulness of the testimony on that point.

Legislation cited (4)

Cases cited (10)

  • Sebuliba v Co-operative Bank Ltd [1982] HCB 129
  • Kasine D. K Lutaaya v Sterling Civil Engineering Company Ltd (Civil Appeal No. 11 of 2002)
  • Sheik Muhammed Lubowa v Kitara Enterprises Ltd (Court of Appeal No. 4 of 1987)
  • Sebuliba v Co-operative Bank Ltd [1982] HCB 130
  • Oketha v Attorney General (Civil Suit No. 69 of 2004)
  • Jonathan Masembe and 3 Others v Makerere University and 2 Others (Civil Suit No. 857 of 2000)
  • Lutalo Moses v Ojede Abdalla Bin Cona (Supreme Court Civil Appeal No. 5 of 2019)
  • Uganda Commercial Bank v Deo Kigozi [2002] EA 293
  • Storms v Hutchison (1905) AC 515
  • Assist (U) Ltd v Italian Asphalt and Haulage and Another (High Court Civil Suit No. 1297 of 1999)

Full judgment

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

Mawanda_and_2_Others_v_Nanyonga_(Civil_Suit_No._127_of_2018)_[2023]_UGHCLD_22_(9_February_2023)
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.