Wakilii

Pakzad Reza and Another v Kiwanuka and Another (civil Suit no.180 2015)

High Court · [2023] UGHCLD 464 · 2023 Judgment for Plaintiff AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for trespass and eviction with counterclaim for fraud
Decision
Defendants evicted from encroached land; permanent injunction granted; 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 plaintiffs established their registered ownership of land comprised in Munyonyo LRV 3808 Folio 2 Block 256 Plot 124 by producing a certificate of title, sales agreement, and survey report confirming encroachment by the defendants onto 0.042 hectares. The defendants' counterclaim of fraud and bonafide occupancy failed for lack of evidence. Eviction order issued; general damages of UGX 15,000,000 awarded for nuisance and deprivation of use and enjoyment.

Outcome

Defendants evicted from encroached land; permanent injunction granted; general damages and costs awarded to plaintiffs

Facts

The plaintiffs acquired registered leasehold title to land at Munyonyo measuring 0.182 hectares in 2007, having purchased it from Michael Odongo in 2002 and developed a residential home. They fenced the land but left approximately 0.042 hectares outside the fence where they planned to plant flowers and trees. Around 2012, the defendants, who occupied neighbouring land, entered this unfenced portion without consent and constructed servants' quarters and grazed cows, causing nuisance from smell and noise. The plaintiffs complained to local authorities and KCCA, which issued a stop-construction notice. A survey in 2012 confirmed the defendants' structures encroached onto the plaintiffs' land. The 2nd defendant filed a defence and counterclaim alleging fraud and asserting bonafide occupancy through her late husband's acquisition of a kibanja, but failed to appear at trial despite court accommodation. The matter proceeded ex parte.

Issues

  1. Who is the rightful owner of the suit land and whether the defendants are trespassers?
  2. What remedies are available to the parties?

Orders

  • Plaintiffs declared rightful owners of all land comprised in Munyonyo LRV 3808 Folio 2 Block 256 Plot 124.
  • Defendants declared trespassers onto 0.042 hectares of the plaintiffs' land.
  • Eviction order issued against defendants from the suit land measuring 0.042 hectares.
  • Permanent injunction issued restraining defendants, their agents, assignees, legal representatives or transferees from further trespass or claim onto the suit land.
  • UGX 15,000,000 awarded as general damages with interest at 15% per annum from date of judgment until payment in full.
  • Costs of suit awarded to the plaintiffs.

Rules and key headnotes

Land & Property — Trespass to Land — Elements of Proof
To prove trespass to land, a plaintiff must establish that the land in dispute belongs to them, that the defendant entered upon that land, that the entry was unlawful in that it was made without permission, and that the defendant has no claim, right, or interest in the land.
Land & Property — Registered Title — Conclusiveness and Indefeasibility
A certificate of title is conclusive evidence of title and takes priority over any adverse claims. By virtue of section 176 of the Registration of Titles Act, save for fraud, it is an absolute bar and estoppel to an action of ejectment or recovery of any land.
Land & Property — Fraud — Standard of Proof and Pleading Requirements
An allegation of fraud is grave and must be specifically pleaded and strictly proved, the burden being heavier than the balance of probabilities generally applied in civil matters. Fraud that vitiates a land title of a registered proprietor must be attributable to the transferee.
Land & Property — Bonafide Occupancy — Burden of Proof
A defendant asserting bonafide occupancy and challenging a survey bears the burden of producing valid documentary evidence of acquisition, establishing the nature of interest acquired, and if necessary conducting a counter-survey to disprove the plaintiff's evidence. Failure to adduce such evidence or appear at trial will result in dismissal of the defence.
Tort Law — General Damages — Compensatory Principle
General damages should be compensatory in nature and should restore some satisfaction as far as money can do to the injured plaintiff for the breach or injury suffered. They are presumed to arise from the direct, natural, or probable consequences of the act complained of and include damages for physical inconvenience, mental distress, pain, and suffering.

Legislation cited (5)

Cases cited (12)

  • Justine E. M.N. Lutaaya v Sterling Civil Engineering (Civil Appeal No. 11 of 2002)
  • George Kasedde Mukasa v Emmanuel Wabende and Others (Civil Suit No. 459 of 1998)
  • Kailash Mine Limited v B4S Highstone Ltd (Civil Suit No. 139 of 2012)
  • Sheik Muhammed Lubowa v Kitara Enterprises Ltd (EACA No. 4 of 1987)
  • Kampala Bottlers Ltd v Damanico (U) Ltd (SCCA No. 2 of 1992)
  • Fam International Ltd and Ahmad Farah v Mohamed El Fith [1994] KARL 307
  • Kampala Bottlers v Damanico (U) Ltd (SCCA No. 27 of 2012)
  • Ababiri Muhamood and Four Others v Mukomba Ananstansia and Taita Wilfred (HCCS No. 22 of 2015)
  • Takya Kushwahiri and Another v Kajonyucom Denis (CACA No. 85 of 2011)
  • 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 (HCCS No. 1291 of 1999)

Full judgment

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

Pakzad_Reza_and_Another_v_Kiwanuka_and_Another_(civil_Suit_no.180_2015)_[2023]_UGHCLD_464_(9_August_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.