Wakilii

National Social Security Fund v Kyambadde (Civil Suit No. 188 of 2013)

High Court · [2015] UGHCLD 259 · 2015 Judgment for Plaintiff AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for declaration of unlawful occupation, eviction, and damages for trespass
Decision
Defendant declared a trespasser, evicted, structures demolished, and ordered to pay damages and costs

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the defendant was not a bona fide or lawful occupant of the land. To qualify as a bona fide occupant under the Land Act, a person must prove occupation and utilisation or development of the land unchallenged by the registered owner for 12 years before the 1995 Constitution came into force. The defendant failed to discharge that burden. The defendant only encroached on the suit land in 2010, well after the plaintiff's predecessor acquired registered title in 1958 and the plaintiff itself acquired title in 2004. The defendant's contradictory testimony about the location of his mother's grave and church undermined credibility. Suit allowed.

Outcome

Defendant declared a trespasser, evicted, structures demolished, and ordered to pay damages and costs

Facts

The plaintiff purchased land comprised in Busiro Block 269 Plot 1058 at Lubowa from National Housing and Construction Corporation in November 2003 and was registered as proprietor in June 2004. In 2010 the plaintiff discovered that the defendant had encroached on 0.882 hectares of the suit land by constructing basketball and volleyball pitches, a fence, and a social centre. A government survey confirmed the extent of encroachment in October 2011. The Resident District Commissioner for Wakiso summoned the parties and determined that the defendant was a trespasser who should vacate. The defendant refused and resisted eviction. The defendant claimed he derived his title from his late mother Mary Nakakawa Nalongo who gave him a kibanja in 1995, and that the family had occupied the land since the 1950s. The defendant testified that his mother's grave and his church were on the suit land. At the locus visit in October 2014, it was established that the church and grave were outside the suit land, contradicting the defendant's testimony.

Issues

  1. Whether the defendant is a lawful or bona fide occupant on the suit land.
  2. What remedies are available to the parties?

Orders

  • A declaration that the defendant is a trespasser and unlawfully occupying the plaintiff's land comprised in Busiro Block 269 Plot 1058 land at Lubowa.
  • An order that the defendant be evicted from the suit land.
  • An order for the demolition of structures erected by the defendant on the suit land.
  • A permanent injunction restraining the defendant, his agents, nominees, or representatives, from further occupying and or using the suit land.
  • The defendant to pay the plaintiff Shs 100,000,000 as general damages for the trespass on the suit land.
  • The defendant to pay costs of the suit.
  • Interest at court rate of 6% per annum from the date of judgment until payment in full on the damages awarded.

Rules and key headnotes

Bona fide occupancy — Burden of proof — Requirements under Land Act s.29
A person claiming to be a bona fide occupant under the Land Act bears the burden of proving that he occupied and utilised or developed the land unchallenged by the registered owner for twelve years before the coming into force of the 1995 Constitution.
Lawful occupancy — Section 29(1) Land Act — Tenant-landlord relationship
To qualify as a lawful occupant under the Land Act, a person must prove either that he was a customary tenant occupying land with the consent of the registered owner, or that he entered the land with the consent of the registered owner. In the absence of evidence of a tenant-landlord relationship such as Busuulu payments, no lawful occupancy is established.
Credibility of witnesses — Material contradictions — Effect on testimony
Where a witness gives testimony in open court which is materially contradicted by findings at a locus visit, and the witness then attempts to change his position without satisfactory explanation, the contradiction fundamentally undermines the credibility of the witness's evidence.
Trespass to land — What constitutes trespass — Protection of bona fide occupants
Trespass to land occurs when a person makes an unauthorised entry upon land and thereby interferes with another person's lawful possession. Constitutional provisions on legitimate and bona fide occupants are not intended to protect trespassers on land.
Illegal structures — Demolition — Absence of customary tenure relationship
Where a court has held that there is no customary tenure relationship between a claimant and a registered owner, any structures put up by the claimant on the land are illegal and their demolition is justified.
General damages for trespass — Assessment — Trespass actionable per se
Trespass to land is actionable per se even if no damage was done to the land. A plaintiff is entitled to recover damages even though he has suffered no actual loss, but if trespass has caused loss, the plaintiff is entitled to receive such amount as will compensate him for that loss. The purpose of damages is to put the plaintiff in as good a position as he would be if the trespass had not occurred.

Legislation cited (7)

  • Land Act Cap.227 s.29(1)
  • Land Act Cap.227 s.29(2)
  • Land Act Cap.227 s.29(5)
  • Evidence Act Cap.6 s.103
  • Registration of Titles Act s.64(2)
  • Land Reform Decree 1975 s.4
  • Civil Procedure Act Cap.71 s.27(2)

Cases cited (16)

  • Kampala District Land Board v National Housing and Construction Corporation (Supreme Court Civil Appeal No. 2 of 2004)
  • Muluta Joseph v Katama Sylvano (Supreme Court Civil Appeal No. 11 of 1999)
  • Y. Kaberegye v Sowedi Bampate (High Court Civil Appeal No. MMB 18 of 1993)
  • Bakamukuturaki v Godfrey Kavuma (High Court Civil Suit No. 130 of 1993)
  • Justine E.N Lutaaaya v Sterling Civil Engineering Co Ltd (Supreme Court Civil Appeal No. 11 of 2002)
  • Godfrey Ojwang v Wilson Bagonza (Court of Appeal Civil Appeal No. 25 of 2002)
  • James Fredrick Nsubuga v Attorney General (High Court Civil Suit No. 13 of 1993)
  • Erukan Kuwe v Isaac Patrick Matovu (High Court Civil Suit No. 177 of 2003)
  • Placid Weli v Hippo Tours (High Court Civil Suit No. 939 of 1996)
  • 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)
  • AKPM Lutaaya v Attorney General (Civil Appeal No. 2 of 2005)
  • Jennifer Rwanyindo Aurelia v School Outfitters (U) Ltd (Court of Appeal Civil Appeal No. 53 of 1999)
  • National Pharmacy Ltd v Kampala City Council [1979] HCB 25
  • Shokotali bAbdulla Dhalla v Sadrudin Meralli (Supreme Court Civil Appeal No. 32 of 1094)

Full judgment

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National Social Security Fund v Kyambadde (Civil Suit No. 188 of 2013) [2015] UGHCLD 259 (26 May 2015)
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.