Wakilii

Turyamureeba v Mbaine (Civil Appeal 40 of 2009)

High Court · [2015] UGHC 3 · 2015 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from Grade I Magistrate's Court dismissal of trespass claim
Decision
Trespass established; respondent ordered to shift fence to correct boundary position

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court allowed the appeal after ordering a fresh survey by the district surveyor. The survey established that the respondent's fence was planted entirely inside the appellant's plot 67, constituting trespass, though the respondent had been misguided by a previous incorrect survey. The court ordered the fence to be shifted to its correct position as indicated on the survey map, with each party bearing its own costs due to the earlier wrongful survey.

Outcome

Trespass established; respondent ordered to shift fence to correct boundary position

Facts

The appellant sued the respondent for trespass to land on plot 67 Block 22 Kigezi. The respondent possessed neighbouring plot 57 Block 22. A boundary dispute between the parties' relatives had previously been litigated in LC courts, which ordered a survey and demarcation. In 2006, the respondent uprooted an existing barbed wire fence boundary marker and extended it onto the appellant's land, allegedly in pursuit of the LC court order. The respondent had also allowed his animals to graze on the disputed strip. The trial magistrate dismissed the suit, finding no trespass proved and that ownership was not established. On appeal, the High Court ordered a fresh survey by the district surveyor, who found that the respondent's fence was planted entirely inside plot 67, covering 0.09 acres. The surveyor concluded that the respondent had been misguided by a previous incorrect survey that had mislaid the boundary mark stones.

Issues

  1. Whether the trial magistrate erred in holding that the plaintiff had no right to object to the defendant's witness acting as surveyor in opening boundaries
  2. Whether the trial magistrate erred in ignoring evidence that the appellant had title to the land and the respondent trespassed onto it

Orders

  • Appeal allowed.
  • The fence planted by the respondent Stanley Mbaine be shifted and planted in its rightful position as indicated on the map attached to the survey report.
  • Each party to bear its own costs.

Rules and key headnotes

Land & Property — Boundaries — Trespass — Proof of trespass established by court-ordered survey
Where a trial court fails to adequately determine a boundary dispute and dismisses a trespass claim on grounds of insufficient proof of ownership and trespass, an appellate court may order a fresh survey by an official district surveyor to establish the true boundaries, and where such survey establishes that a fence has been planted entirely within the plaintiff's plot, trespass is proved.
Land & Property — Boundaries — Survey evidence — Weight to be given to district surveyor's report
A survey report prepared by a district surveyor pursuant to a court order carries significant evidentiary weight in determining the true boundaries between adjacent plots, and where the surveyor identifies mark stones that have been mislaid and do not correctly fix the boundary, the court will rely on the surveyor's corrected demarcation.
Tort Law — Trespass to land — Mistaken reliance on incorrect survey — Effect on liability
Where a defendant trespasses onto a plaintiff's land but was misguided by a previous incorrect survey, the trespass is established as a matter of law and the defendant must remedy the encroachment by shifting the wrongly placed boundary marker, but the mitigating circumstance of reliance on incorrect professional advice may justify an order that each party bear its own costs.

Full judgment

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

Turyamureeba v Mbaine (Civil Appeal 40 of 2009) [2015] UGHC 3 (14 July 2015)
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.