Wakilii

Simwogerere v Serwadda (Civil Suit 244 of 2015)

High Court · [2023] UGHCLD 424 · 2023 Judgment for Plaintiff AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for trespass to land and declaration of title
Decision
Defendant ordered to vacate suit property within six months or pay compensation at current market value; failing which, vacant possession to issue

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the defendant had encroached on the plaintiff's land by constructing a perimeter wall extending 4.9 metres on one end and 1.7 metres on the other, totalling 0.03 acres. The alleged access road named Gladys Nansamba Road was an illegal encroachment not recognised as a public road. The court rejected the limitation defence, holding that trespass to land is a continuing tort for which action lies for each day, subject only to recovery of damages within six years under Limitation Act section 3(1)(a). The defendant was ordered to vacate or compensate the plaintiff at current market rates within six months, failing which vacant possession would issue.

Outcome

Defendant ordered to vacate suit property within six months or pay compensation at current market value; failing which, vacant possession to issue

Facts

The plaintiff is administratrix of an estate and registered proprietor of land at Kibuga Block 27 Plot 398, Makerere, measuring approximately 0.020 hectares. The defendant is the immediate neighbour, owning Plot 56 on the same block. In 2008, the defendant constructed a perimeter wall that encroached on the plaintiff's land, together with an access road leading to his gate. The plaintiff erected her own perimeter wall for protection and contracted three surveyors to establish the extent of encroachment. A joint survey conducted in 2020 confirmed that the defendant's wall encroached 4.9 metres on the upper end adjacent to Nanfumbambi Road and 1.7 metres on the lower end, totalling 0.011 hectares (0.03 acres). The alleged access road, named Gladys Nansamba Road, encroached a further 0.015 hectares (0.04 acres). The plaintiff's attempts at amicable resolution through local authorities failed, compelling her to file suit. During the trial, the defendant died and was substituted by his legal representative. The court visited locus in quo in April 2023.

Issues

  1. Whether the Defendant encroached and trespassed on the Plaintiff's land comprised in Kibuga Block 27 Plot 398 land at Makerere?
  2. Whether in the alternative, the suit land is part of the access road to which the Defendant is entitled to use to access his property?
  3. Whether the suit is time barred and affected by limitation?
  4. What remedies are available to the parties?

Orders

  • Court finds in favor of the Plaintiff.
  • The Defendant ordered to vacate the suit property within six months from date of delivery of judgment or in the alternative pay an amount equivalent to the current market price of the suit land.
  • The Plaintiff is awarded general damages of UGX 27,000,000.
  • The Plaintiff is also awarded punitive damages of UGX 3,000,000.
  • General and punitive damages shall carry an interest of 18% per annum from date of delivery of judgment until payment in full.
  • The Plaintiff is awarded costs of the suit.

Rules and key headnotes

Land & Property — Trespass — Encroachment by Construction
Where a defendant constructs a perimeter wall that extends into the plaintiff's registered land, encroachment constitutes trespass regardless of the defendant's claim that the disputed area forms part of an access road.
Land & Property — Private Mailo Land — Access Roads
One does not create an access road out of land belonging to another, especially under private Mailo land tenure; a party alleging that a road passing through another's land is a public or KCCA-designated road bears the burden of proving such designation with evidence.
Tort Law — Trespass to Land — Continuing Tort
An action for the tort of trespass to land is for enforcement of possessory rights rather than proprietary rights; trespass to land is a continuing tort for which action lies for each day that passes, subject only to recovery of damages for the period falling within six years under Limitation Act section 3(1)(a), reckoning backwards from when action is initiated.
Civil Procedure — Limitation — Trespass Distinguished from Recovery of Land
Where a plaint claims declarations of trespass and unlawful occupation rather than recovery of land based on proprietary title, the twelve-year limitation period under Limitation Act section 5 does not apply; the suit is governed instead by the six-year limitation for continuing torts under section 3(1)(a).
Tort Law — Damages — General and Punitive Damages for Trespass
In an action of trespass, if proved, a plaintiff is entitled to recover damages even without actual loss; where the defendant has made use of the plaintiff's land, the plaintiff is entitled to mesne profits; punitive damages may be awarded where the defendant remains adamant despite survey evidence confirming encroachment and refuses amicable settlement.

Legislation cited (9)

Cases cited (7)

Full judgment

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

Simwogerere_v_Serwadda_(Civil_Suit_244_of_2015)_[2023]_UGHCLD_424_(29_September_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.