Wakilii

Ssali v Walusansa (Civil Suit 2676 of 2016)

High Court · [2024] UGHCLD 118 · 2024 Judgment for Plaintiff AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for declaration of trespass and permanent injunction
Decision
Plaintiff's claim allowed; defendant declared a trespasser beyond his kibanja interest; permanent injunction issued; general damages awarded.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that a registered proprietor who purchases land subject to a kibanja interest is entitled to possession of the land beyond the demarcated kibanja. Where the defendant had a kibanja of 100ft by 168ft (approximately 30 decimals) clearly marked by traditional boundary trees as evidenced by a 2006 agreement, his occupation of the remaining portion of the plaintiff's registered land constituted trespass. Declaration of trespass granted, permanent injunction issued, general damages of UGX 20 million awarded.

Outcome

Plaintiff's claim allowed; defendant declared a trespasser beyond his kibanja interest; permanent injunction issued; general damages awarded.

Facts

The plaintiff purchased land comprised in Kyadondo Block 227 Plot 154 from Juuko Stephen in 2007 measuring 0.81 hectares. At the time of purchase, the defendant's family held kibanja interest of 30 decimals (100ft by 168ft) on the land, clearly marked by traditional boundary trees and a fence. After purchase, the plaintiff registered the land and took possession, reaffirming the boundaries of the defendant's kibanja without tampering with existing boundary marks. The plaintiff went abroad and returned in 2015 to find the defendant and his family had encroached on his land beyond the demarcated kibanja, cultivated crops, constructed a house, and removed portions of the plaintiff's fence. The defendant claimed his family had occupied the entire land since 1954 and that his kibanja extended to approximately 2 acres. A 2006 agreement between the defendant and the previous landlord's wife confirmed the kibanja was 100ft by 168ft. At locus, the court observed the spots where traditional boundary trees had been, a relatively new house beyond the boundary marks, and that the defendant was utilizing approximately 2 acres.

Issues

  1. Whether the defendant is a trespasser on the land beyond the 30 decimals known by the plaintiff.
  2. What remedies are available to the plaintiff?

Orders

  • Declaration that the defendant has kibanja interest measuring only 100ft by 168ft on plaintiff's land comprised in Kyadondo Block 227 Plot 154 at Bweyogerere and is a trespasser on the remaining portion of the said land.
  • The defendant to grant vacant possession of the remaining portion of land to the plaintiff.
  • Permanent injunction issued against the defendant, his servants, agents and anybody claiming title under him, restraining them from committing any further acts of trespass, alienating, dealing with or doing any transaction on the said remaining portion of land.
  • The defendant to pay general damages of UGX 20,000,000 to the plaintiff.
  • The defendant to pay interest on the general damages at court rate from date of judgment till payment in full.
  • The defendant to pay costs of the case to the plaintiff.

Rules and key headnotes

Trespass to Land — Elements of Trespass — Plaintiff Must Show Possession
For a plaintiff to bring an action of trespass, he or she must show that he or she was in possession of the suit land. Physical presence on the land or use or de facto control of it does not amount to possession sufficient to bring an action of trespass; one is required to have an interest in the subject land as well. Interests in land include registered and unregistered interests.
Kibanja Interests — Limitation of Customary Occupancy Rights
Where a kibanja holder's customary interest has been clearly demarcated and recognized by the registered proprietor through a written agreement specifying dimensions, occupation of land beyond those demarcated boundaries by the kibanja holder constitutes trespass against the registered proprietor, notwithstanding the kibanja holder's long occupation of the land.
Kibanja Interests — Evidential Value of Traditional Boundary Marks
Traditional boundary trees marking the extent of a kibanja interest constitute valid evidence of the boundaries of that interest. Where such boundary marks are shown to have existed and their removal is not explained by the kibanja holder, the court may rely on the spots where such trees stood to determine the lawful extent of the kibanja.
Pleadings — Cause of Action — Elements Required
A plaint discloses a cause of action where it shows that the plaintiff enjoyed a right, that said right was violated, and that the defendant is liable for the violation. A registered proprietor who purchases land and takes possession has a right to enjoy and possess the land, and unlawful entry by another person interferes with this right.
Damages — Assessment for Trespass to Land
General damages for trespass to land should be compensatory in nature and restore some satisfaction, as far as money can, to the injured plaintiff. Where a registered proprietor has been denied use of his land while the defendant enjoyed it for several years through unlawful occupation, the plaintiff is entitled to general damages for inconvenience.

Legislation cited (7)

Cases cited (7)

  • Sheikh H Mohamed Lubowa v Kitaka Enterprises (Civil Appeal No. 4 of 1987)
  • Auto Garage & Others v Motokou (No.3) [1971] EA 519
  • Justine EM Lutaaga v Sterling Civil Engineering (Civil Appeal No. 11 of 2002)
  • Onega Obel & Another v Attorney General (High Court Civil Suit No. 006 of 2002)
  • Tayebwata Godfrey & Besigomwe Edison v Kagimu Ngudde Mustafa (High Court Civil Suit No. 118 of 2012)
  • John Katarikawa v William Katutiremu [1977] HCB 210
  • Takya Kushwahiri & Another v Kajonyu Denis (Court of Appeal Civil Appeal No. 85 of 2011)

Full judgment

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

Ssali_v_Walusansa_(Civil_Suit_2676_of_2016)_[2024]_UGHCLD_118_(3_May_2024)
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.