Wakilii

Tayebwa & Anor v Kagimu (High Court Civil Suit No. 118 of 2012)

High Court · [2019] UGHCLD 5 · 2019 Judgment for Plaintiff AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for trespass, eviction, and damages with counterclaim
Decision
Plaintiffs' suit allowed; defendant's counterclaim dismissed; permanent injunction and damages granted to plaintiffs

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that plaintiffs, as registered proprietors, are entitled to succeed in trespass against defendant who failed to prove claimed Kibanja interest. Defendant's alleged partial payment of UGX 2,500,000 to deceased vendor was recorded as a loan pending agreement on purchase price, insufficient to establish unregistered interest. Registered title prevails where alleged prior unregistered interest not proven. Defendant's counterclaim dismissed. Plaintiffs awarded general damages of UGX 5,000,000 and permanent injunction but special damages refused for lack of strict proof.

Outcome

Plaintiffs' suit allowed; defendant's counterclaim dismissed; permanent injunction and damages granted to plaintiffs

Facts

Plaintiffs, registered proprietors of Block 70 Plot 235 Butambala measuring 38.7 acres since 2011, acquired the land from the late Muhamudu Buwule. The suit land was subdivided from Block 70 Plot 226 from which defendant had bought several parcels and developed a dairy farm. Plaintiffs took possession in 2011 and fenced the land in 2012 to prevent defendant's animals from entering. Defendant claimed he held a Kibanja interest in the suit land, having partially paid UGX 2,500,000 to the deceased in 2007 under an agreement recorded as a loan pending determination of final purchase price. Defendant alleged he had been in possession developing the land since 1996. Plaintiffs denied defendant had any interest and alleged defendant trespassed and destroyed their fence in January 2012. Defendant counterclaimed for trespass, malicious damage, and injunction.

Issues

  1. Whether the plaintiffs have a cause of action against the defendant.
  2. Whether the defendant has a valid defence to the suit.
  3. Whether the counter plaintiff has a cause of action against the counter defendant in the counterclaim.
  4. Whether the parties are entitled to any remedies.

Orders

  • Declaration granted that the plaintiffs are the rightful owners of the suit land comprised in Block 70 Plot 235 at Butambala.
  • Permanent injunction granted restraining the defendant, his agents, relatives, or anyone claiming interest through him from interfering with the plaintiffs' possession of the suit land.
  • General damages of UGX 5,000,000 awarded to the plaintiffs.
  • Interest on general damages awarded at court rate from date of judgment till full payment.
  • Special damages claim of UGX 9,000,000 refused.
  • Costs of the main suit and counterclaim awarded to the plaintiffs.
  • Defendant's counterclaim dismissed.

Rules and key headnotes

Land & Property — Registered Title — Conclusiveness — Investigation of Circumstances of Acquisition
A certificate of title is not conclusive proof of ownership in land until the circumstances of acquisition have been investigated.
Land & Property — Kibanja Interest — Proof of Unregistered Interest — Burden of Proof
To sustain a claim of Kibanja interest as an unregistered interest in land, a claimant must prove acquisition of that interest from someone who previously had an interest or title in the land, with evidence of agreement on purchase terms including price.
Land & Property — Registered and Unregistered Interests — Coexistence Under Land Act
A Kibanja interest as an unregistered interest can coexist with a registered legal interest in the same land by operation of the Land Act Cap 227 sections 3(4)(b) and 29(1)(b) and the Land (Amendment) Act 2010 section 3(b).
Tort Law — Trespass to Land — Elements of the Tort
Trespass to land occurs when a person makes unauthorised entry upon land thereby interfering or portending to interfere with another person's lawful possession. To succeed, a plaintiff must prove that the disputed land belongs to the plaintiff, that the defendant entered upon it, and that the entry was unlawful in that it was made without permission or that the defendant had no claim, right, or interest in the land.
Tort Law — Trespass — Owner in Possession — Slightest Acts Sufficient
Where the owner is suing a person allegedly in possession for trespass, even the slightest acts by the owner indicating intention to take possession are sufficient to maintain the action. A defendant cannot sustain a claim against a plaintiff owner regardless of whether the defendant was in actual possession if the defendant had no interest in the land.
Evidence — Special Damages — Strict Proof Required
Special damages and pecuniary losses must be strictly proved. A claim for loss of property or crops must be pleaded as special damages and strictly proved; it cannot be recovered under a general damages claim.
Civil Procedure — Written Statement of Defence — Evasive Denials — Admissions
A written statement of defence is not invalid merely because it contains denials provided those denials are specific and not evasive. Where a defendant admits facts during scheduling or in pleadings that are inconsistent with the defence, such admissions may be considered in making final judgment rather than rendering the written statement of defence invalid.

Legislation cited (8)

Cases cited (14)

  • Justine E.M.N. Lutaaya v Sterling Civil Engineering Co. (Supreme Court Civil Appeal No. 11 of 2002)
  • John Katarikawe v William Katwiremu [1977] HCB 210
  • Ojwang v Wilson Bagonza (Court of Appeal Civil Appeal No. 25 of 2002)
  • Turinawe and 4 Others v Eng. Turinawe and Another (Supreme Court Civil Appeal No. 10 of 2018)
  • Kampala District Land Board and Another v Venansio Babweyaka and Others (Supreme Court Civil Appeal No. 2 of 2007)
  • Kampala District Land Board and Another v National Housing & Construction Corporation (Court of Appeal Civil Appeal No. 2 of 2004)
  • Kapeka Coffee Works Ltd v N Parts (Court of Appeal Civil Appeal No. 3 of 2000)
  • Uganda Aluminum Ltd v Restetuta Twinomugisha (Court of Appeal Civil Appeal No. 22 of 2000)
  • Auto Garage v Motokov (No.3) [1971] EA 514
  • Sheikh Muhammed Lubowa v Kitara Enterprises Ltd (Court of Appeal Civil Appeal No. 4 of 1987)
  • Ocean Estates Ltd v Pinder [1969] 2 AC 19
  • Robert Cuossens v Attorney General (Supreme Court Civil Appeal No. 8 of 1999)
  • Charles Acire v Myaana Engola (High Court Civil Suit No. 143 of 1993)
  • Boschcon Civil & Electrical Construction Co. (U) Ltd v Salini Construttiri Spa (High Court Civil Suit No. 151 of 2008)

Full judgment

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

Tayebwa_&_Anor_v_Kagimu_(High_Court_Civil_Suit_No._118_of_2012)_[2019]_UGHCLD_5_(14_February_2019)
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.