Wakilii

Musoke Ssalongo v Makindye Ssabagabo Municipal Council (Civil Suit 458 of 2018)

High Court · [2023] UGHCLD 191 · 2023 Judgment for Defendant AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for trespass and compensation arising from road construction
Decision
Suit dismissed. Plaintiff not entitled to compensation for demolished buildings or land taken for road construction.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the defendant did not trespass on the plaintiff's land. A public right of way had been established through continuous use of Nfuufu-Bunamwaya Road for approximately 47 years since the 1970s. The plaintiff failed to rebut the presumption of a public right of way by showing overt acts to disabuse the public of that belief. The plaintiff's demolished buildings were illegally constructed without approved plans within the road reserve. The plaintiff lost proprietary interest in the 19 decimals through which the road passes due to acquiescence. No compensation was payable. Suit dismissed.

Outcome

Suit dismissed. Plaintiff not entitled to compensation for demolished buildings or land taken for road construction.

Facts

The plaintiff owned land comprised in Kyadondo Block 265 Plot 3835 at Bunamwaya, Wakiso district. In October 2017, during the upgrade of Nfuufu-Bunamwaya Road from murram to bitumen standard, the defendant municipal council demolished the plaintiff's seven rental units and encroached on 19 decimals of his land. The plaintiff retained 1.14 acres unaffected by the road. The plaintiff claimed the defendant trespassed and sought compensation valued at UGX 122,882,766. The defendant contended the road had existed since the 1970s as a public right of way, that the plaintiff acquiesced in its existence and benefited from it, and that the plaintiff's structures were illegally constructed without approved plans within the road reserve. Evidence showed vehicles began using the road in the 1970s. The plaintiff's wife testified she had lived in the area since 1961/1962 and vehicles started using the road around the 1970s or 1980s. The plaintiff failed to produce approved building plans for the demolished structures.

Issues

  1. Whether or not the defendant trespassed on the plaintiff's land?
  2. Whether or not the plaintiff is entitled to remedies sought?

Orders

  • Suit dismissed.
  • No order as to costs.

Rules and key headnotes

Public Right of Way — Establishment by Prescription — Continuous Use for 20 Years
A public right of way may be established by continuous use for 20 years or more, raising a presumption of dedication by the landowner. The legal burden is on the landowner to rebut this presumption by proving he challenged the existence of the public right of way in so open and notorious a fashion that it was clear to not only strangers but also to local residents that a public right of way did not exist.
Public Right of Way — Rebutting Presumption — Overt Acts Required
To rebut the presumption of a public right of way established by long use, a landowner must take overt steps to disabuse the public of any belief that a public right exists, such as erecting barriers, posting notices forbidding public use, or closing the way one day a year. Merely holding a private intention not to dedicate, or telling strangers, is insufficient.
Public Right of Way — Acquiescence — Loss of Proprietary Interest
Where a landowner acquiesces in the existence of a public right of way over his land for a substantial period (in this case 47 years), he loses proprietary interest in that portion of land and cannot subsequently deny the existence of the public right of way or claim trespass when the road authority exercises its statutory mandate to maintain or upgrade the road.
Road Reserves — Prohibition on Development — No Compensation for Illegal Structures
Under the Roads Act (Cap 358) section 3, no person shall erect any building or plant any tree or permanent crops within a road reserve except with written permission of the road authority. A person who erects buildings illegally within a road reserve is not entitled to compensation when those buildings are demolished by the road authority in exercise of its statutory mandate.
Trespass to Land — Defence of Statutory Authority and Public Right of Way
Trespass to land occurs when a person makes an unauthorised entry upon land and interferes with another person's lawful possession. However, where a public right of way exists over land and a road authority exercises its statutory mandate to construct or maintain a road over that right of way, no trespass occurs even if the landowner's structures are demolished in the process.
Local Government Powers — Road Construction and Maintenance
Under the Local Governments Act (Cap 243) sections 30 and 31 and the Second Schedule Part 2 paragraph 4, district councils and lower local governments have a statutory duty to construct, rehabilitate and maintain roads not under the responsibility of central government. This statutory mandate extends to roads over which a public right of way exists.
Property Rights — Article 26 — Limitation Where Public Right of Way Exists
While article 26 of the Constitution protects the right to property and requires prompt payment of fair and adequate compensation for compulsory acquisition, a landowner who has lost proprietary interest in a portion of his land through acquiescence in a public right of way for a substantial period cannot claim infringement of property rights under article 26 when the road authority exercises its statutory mandate over that portion.

Legislation cited (7)

Cases cited (10)

Full judgment

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Musoke_Ssalongo_v_Makindye_Ssabagabo_Municipal_Council_(Civil_Suit_458_of_2018)_[2023]_UGHCLD_191_(11_July_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.