Wakilii

Mohanlal Kakubhai v Warid telcom. ug (Civil Suit Not. 0224 of 2011)

High Court · [2014] UGHCLD 6 · 2014 Judgment for Plaintiff AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for trespass, eviction, damages, and removal of unauthorized structures
Decision
Judgment entered for the plaintiff with substantial general and special damages awarded plus interest and costs

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court held that the defendant telecommunications company trespassed on the plaintiff's land by constructing a telecommunications mast and blocking the access road without the plaintiff's authorization from August 2007 to December 2011. Although the defendant held a lease from a company for an adjacent plot, the company had no power to authorize construction on the plaintiff's subdivided land where the plaintiff held beneficial ownership and equitable interest. The court awarded UGX 1,000,000,000 in general damages and UGX 81,300,000 in special damages plus interest at 23% per annum.

Outcome

Judgment entered for the plaintiff with substantial general and special damages awarded plus interest and costs

Facts

The plaintiff was the registered beneficial owner of Plot No. 106B, 5th Street Industrial Area, Kampala, his proportionate share from Uganda Shoe Co. Ltd following a 1998 subdivision. In August 2007, the defendant telecommunications company leased adjacent Plot No. 106A from the company for construction of a telecommunications mast. During construction, the defendant encroached onto Plot No. 106B, completely blocking its access road. The plaintiff had lodged a caveat on the title in June 2000 to protect his equitable interest. When negotiations failed, the plaintiff sued for eviction, removal of structures, and damages. The defendant relocated the mast in December 2011 but contested liability. The plaintiff claimed he lost a purchase offer of USD 1,690,000 due to the blocked access road and suffered rental income loss when his tenant vacated.

Issues

  1. Whether the Defendant trespassed upon the Plaintiff's land/property and if so from what period?
  2. Whether the Plaintiff incurred damages as a result of the Defendant's actions and if so, how much?
  3. Whether the Plaintiff is entitled to damages incurred by the Defendant's actions and if so from when?
  4. What remedies are available to the parties?

Orders

  • The Defendant pays to the Plaintiff Shs.81,300,000/= as special damages.
  • The Defendant pays to the Plaintiff Shs.1,000,000,000/= (One Billion) as general damages.
  • The amount in special damages shall attract an interest rate of 23% per annum from the date of filing till the date of payment in full.
  • The amount in general damages shall attract an interest rate of 23% per annum from the date of judgment till the date of payment in full.
  • The Plaintiff is awarded costs of this suit at Court (interest) rate of 6% per annum from the date of taxation till the date of payment in full.

Rules and key headnotes

Trespass to Land — Unauthorized Entry — Beneficial Ownership and Equitable Interest
Trespass to land occurs when a person makes an unauthorized entry upon another's land thereby interfering with another person's lawful possession of the land. Possession includes constructive possession and does not require physical occupation. A beneficial owner with equitable interest has standing to sue for trespass even where legal title remains vested in another party holding the land in trust.
Beneficial Ownership — Authority to Grant Lease — Trust
Where land has been subdivided and allocated to shareholders as their proportionate shares, the company holding nominal legal title holds the subdivided portions in trust for the shareholders as beneficial owners. The company has no power to authorize or consent to third party activities on land held in trust for a beneficial owner without that owner's consent.
Caveat — Notice in Rem — Due Diligence
A caveat lodged on a certificate of title serves as notice in rem that the land is encumbered and ought not to be dealt with without prior notification of the caveator. Anyone intending to deal with land subject to a caveat is put on notice of the caveator's interest and ought to exercise due caution and diligence.
Without Prejudice Correspondence — Admissibility — Exceptions to Privilege
Correspondence marked 'without prejudice' is generally inadmissible in litigation as it is privileged and not necessarily the whole truth. However, such correspondence may be admitted by consent of both parties at a scheduling conference, in which case the doctrine of estoppel operates to prevent a party from subsequently objecting. Without prejudice correspondence may also be relied upon where it forms part of a series of circumstantial proof of a fact in issue.
Trespass — Damages — Loss of Business Opportunity
Trespass to land is actionable per se even if no actual damage is caused to the land. Where trespass causes the plaintiff loss, including loss of business opportunity such as the loss of a bona fide purchase offer due to interference with land access, the plaintiff is entitled to general damages to restore satisfaction as far as money can do so and to place the plaintiff in the position they would have been in had the trespass not occurred.
Special Damages — Proof — Documentary and Direct Evidence
Special damages must be specifically pleaded and strictly proved, but strict proof does not require documentary evidence in all cases. Special damages may be proved by direct evidence such as testimony of persons who received or paid money or testimony of experts conversant with the matters in question.
Interest on Judgment — Commercial Rate — Just and Reasonable
Where interest was not previously agreed between parties, the court may award interest that is just and reasonable under Section 26 of the Civil Procedure Act. A just and reasonable interest rate is one that keeps the awarded amount cushioned against rising inflation and currency depreciation while insulating the plaintiff against economic vagaries. A commercial rate of 23% per annum may be appropriate in such circumstances.

Legislation cited (3)

Cases cited (29)

  • Justine E.M.N Lutaaya v Stirling Civil Eng (Civil Appeal No. 11 of 2002)
  • Moya Drift Farm Ltd. v. Theuri (1973) E.A 114
  • Sentongo Godfrey v Mukono Industries (U) Ltd (High Court Civil Suit No. 55 of 2012)
  • Kalinga v. Kalumwana [1990-1994] EA 137 (C.A.TZ)
  • Hororanto Busulwa Ssalongo v Abdu Senabulya and 5 Others (High Court Civil Appeal No. 7 of 2002)
  • Emmanuel Turyamuhika Kikoni v Uganda Electricity Board (High Court Civil Suit No. 0021 of 2004)
  • British Transport Commission v. Gourley [1956] AC 185
  • Stroms v Hutchinson (1905) AC 515
  • Dr Godwin Turyasingura v Wheels of Africa (High Court Civil Suit No. 485 of 1995)
  • Musoke David v. Departed Asian's Property Custodian Board [1990 - 1994) E.A, 219
  • James Fredrick Nsubuga v Attorney General (High Court Civil Suit No. 13 of 1993)
  • Erukan Kuwe v Isaac Patrick Matovu and Another (High Court Civil Suit No. 177 of 2003)
  • Uganda Commercial Bank v. Kigozi [2002] 1 EA. 305
  • Charles Acire v Myaana Engola (High Court Civil Suit No. 143 of 1993)
  • Kibimba Rice Ltd v Umar Salim (Supreme Court Civil Appeal No. 17 of 1992)
  • GAPCO (U) Ltd v AS Transporters (U) Ltd (Court of Appeal Civil Appeal No. 18 of 2004)
  • Placid Weli v Hippo Tours and 2 Others (High Court Civil Suit No. 939 of 1996)
  • Katumba Ronald v Kenya Airways (Supreme Court Civil Appeal No. 9 of 2008)
  • East African Underwriters v Civil Aviation Authority (Court of Appeal Civil Appeal No. 8 of 2002)
  • Walker v Walker (1889) 23 QBD 335
  • Imelda Bazikoraho v Stanbic Bank (U) Ltd and 2 Others (High Court Civil Suit No. 566 of 2003)
  • Takiya Kashwahiri and Another v Kajungu Denis (Court of Appeal Civil Appeal No. 85 of 2011)
  • Uganda Revenue Authority v. Stephen Mbosi
  • Liska Ltd. v .DeAngelis [1969] E.A 6
  • National Pharmacy Ltd v. KCC [1979] HCB 256
  • Superior Construction & Engineering Ltd v Notay Engineering Ltd (High Court Civil Suit No. 24 of 1992)
  • Mark Extraction Enterprises Ltd v M/s Nalongo Orphanage (High Court Civil Suit No. 4 of 1996)
  • Jennifer Rwanyindo Aurelia and Another v School Outfitters (U) Ltd (Court of Appeal Civil Appeal No. 53 of 1999)
  • National Pharmacy Ltd. v.Kampala City Council [1979] HCB 25

Full judgment

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Mohanlal Kakubhai v Warid telcom. ug (Civil Suit Not. 0224 of 2011) [2014] UGHCLD 6 (25 February 2014)
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.