Wakilii

The Registered Trustees Of Kampala Kindergarten Association v Labarnum Courts Limited and Others (Civil Suit No. 36 of 2008)

High Court · [2023] UGHCLD 97 · 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 encroachment on land with application for orders including eviction, injunction, mesne profits and damages
Decision
Judgment entered for the Plaintiff against the 1st Defendant with orders for vacant possession of 16 decimals encroached upon and permanent injunction. Claims against 2nd, 3rd and 4th Defendants dismissed.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that the 1st Defendant encroached on the Plaintiff's land by approximately 16 decimals. The court adopted the joint surveyor's report as conclusive evidence of the boundary between the two plots. The court ordered vacant possession of the encroached area to be given to the Plaintiff within six months and granted a permanent injunction. Claims against the 2nd, 3rd and 4th Defendants were dismissed for want of evidence. The Plaintiff was awarded costs against the 1st Defendant only.

Outcome

Judgment entered for the Plaintiff against the 1st Defendant with orders for vacant possession of 16 decimals encroached upon and permanent injunction. Claims against 2nd, 3rd and 4th Defendants dismissed.

Facts

The Plaintiff is the registered proprietor of Plot 12 Kyaggwe Road, Kampala (0.437 hectares) on which it operates a school. The 1st Defendant is the registered proprietor of adjoining land known as Plots 3-11 Akii-Bua Close and Plot 35B Kyadondo Road. In 2007, the Plaintiff alleged that the Defendants encroached on approximately 0.061 hectares of its land by constructing structures thereon. The 2nd Defendant supervised the construction, the 3rd Defendant was the independent contractor, and the 4th Defendant was the architect. The Defendants denied the encroachment, contending that their developments were on their own land and complied with approved development plans. The two plots are adjoining. The 1st Defendant has approved building plans for developments on its land, including a circular tank. A court order issued in September 2008 stopped further construction and directed both parties to bring surveyors to open boundaries. After multiple surveyors declined or were replaced over nearly 14 years, the parties agreed on a joint surveyor who conducted a boundary survey and concluded that the 1st Defendant encroached on the Plaintiff's land by approximately 16 decimals (0.16 acres).

Issues

  1. Whether the Plaintiff's suit discloses a cause of action against the Defendants jointly and severally.
  2. Whether the Defendants' developments encroached on the Plaintiff's land and if so, whether they were illegal and unlawful.
  3. What remedies are available to the parties?

Orders

  • The land belonging to the Plaintiff comprised in Plot 12 Kyaggwe Road is 0.387 hectares while land belonging to the 1st Defendant comprised in Plot 4 Akii-Bua Close has an area of 0.171 hectares as reflected on their respective titles.
  • The 1st Defendant encroaches on the Plaintiff's land by approximately 16 decimals as per the referee's findings. Mr. Sserunjogi of Geo-Consultant Surveyors should effect a clear demarcation between the two Plots in compliance with the findings of the survey.
  • An order for vacant possession issues in favor of the Plaintiff for the 16 decimals encroached upon by the 1st Defendant. This should take effect after Order (b) above has been complied with, but in any case in not less than 6 months from the date of this judgment.
  • A permanent injunction issues restraining the Defendants, their agents, servants, workmen and all those claiming under them and/or deriving authority from them from trespassing, encroaching, interfering and/or in anyway dealing with the Plaintiff's land.
  • The case against 2nd, 3rd and 4th defendants is dismissed with each party bearing own costs.
  • The plaintiff is awarded costs of the suit against the 1st defendant.

Rules and key headnotes

Civil Procedure — Cause of Action — Disclosure in Pleadings
A cause of action is disclosed when it is shown that the plaintiff had a right, that right was violated resulting in damage, and the defendant is liable. The question must be determined upon perusal of the plaint alone together with anything attached to form part of it.
Civil Procedure — Reference to Expert — Adoption of Expert Report as Judgment
Under section 26(2) of the Judicature Act, the report of an official or special referee may be adopted wholly or partly by the High Court and if so adopted may be enforced as a judgment or order of the High Court. Where the court exercises its discretion to refer a boundary dispute to a joint surveyor agreed upon by the parties, and orders that the survey report shall be conclusive, the court may adopt the report as its judgment on the issue of boundary determination.
Civil Procedure — Inherent Powers of Court — Prevention of Abuse of Process
Under section 98 of the Civil Procedure Act and section 33 of the Judicature Act, the High Court has wide discretionary and inherent powers to make such orders as may be necessary for the ends of justice and to prevent abuse of the process of court, including adopting procedures to avoid further delays caused by evasive conduct of third parties.
Evidence — Expert Evidence — Status of Court-Appointed Surveyor
Under section 28 of the Judicature Act, in all cases of reference to a referee or arbitrator under the Act, the referee or arbitrator shall be deemed to be an officer of the High Court and, subject to rules of court, shall have such powers and conduct the reference in such manner as the High Court may direct.
Land & Property — Boundary Disputes — Survey Evidence
In boundary disputes, where a joint surveyor appointed by court uses coordinates obtained from the Department of Surveys and Mapping at Entebbe to determine the extent of boundaries and finds encroachment by a specified area, the court may rely on such survey evidence to determine liability where the evidence is uncontroverted.
Evidence — Burden of Proof — Mesne Profits and Damages
A plaintiff claiming mesne profits, compensatory damages, aggravated damages or general damages must adduce specific evidence in proof thereof. Where no evidence is led to establish the quantum of such claims, they must fail.

Legislation cited (7)

Cases cited (8)

  • Cooke v Gull [R & E.P 116
  • Read v Brown 22 QBD P.31
  • Tororo Cement Co. Ltd v Frokina International Limited (Supreme Court Civil Appeal No. 2 of 2001)
  • Kebirungi v Road Trainers Ltd & 2 others [2008] HCB 72
  • Kapeka Coffee Works Ltd v NPART (Court of Appeal Civil Appeal No. 3 of 2000)
  • Crane Bank Ltd v Nipun Narottam Bhatia (Supreme Court Civil Appeal No. 02 of 2014)
  • Ali Ahmad v Mohamad Ahmad & 2 Others (High Court Civil Suit No. 38 of 2011)
  • Balraluba Peter Mukasa v Nambooze Betty Bakireke (Supreme Court Election Petition Appeal No. 04 of 2009)

Full judgment

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

The_Registered_Trustees_Of_Kampala_Kindergarten_Association_v_Labarnum_Courts_Limited_and_Others_(Civil_Suit_No._36_of_2008)_[2023]_UGHCLD_97_(27_January_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.