ISLAMIC UNIVERSITY OF UGANDA

KAMPALA CAMPUS

SEMSTER ONE

COURSE WORK: LAW OF TORT

LECTURER: COUNSEL NAKASAGA RASHIDA

GROUP: 4 &3
NO. NAMES REGISTRATTION NUMBER

1. KABUGO GERALD 223-053012-25841

2 OKANYA ISAAC 221-053012-21753

3 WALUSIMBI MOSES WALTER 223-053012-25811

4 MUMBYA MURUSHIDÌI 223-053012-25325

5 MPIIMA CHRYZESTOM 221-053011-21202

6 AYIRE HADIJAH 223-053012-25774

7. ONEN MARY VALERIA 223-053011-25519

8. NABAKOOZA ZULAIKA 223-053012-25447

TETELI

9. HAMBA GRACE MARIANN 223-053012-25211

10. WAJJARASU HUSSEIN 223-053012-25595

11 KALUNGABA FATUMA 223-053012-25784

12 NANYANZI PHIONA 223-053012-25818

13 AINEBYONA TRISAH 223-053011-25350

14 BYAMUKAMA BAGUMA 223-053012-25843

ALVINE

1
15 NAGASHA SHANNITA 223-053012-25521

16 KATENDE LOUIS 223-053012-25851

17 KIGUNDU KHALID 223-053011-25264

18 SSEKIKOFU SAID 223-053012-25591

19 MAGUMBA ISMAIL 223-053012-25589

20 AYEBAZIBWE OWEN 223-053012-25029

21 MUGISHA ELDARD 223-053012-27769

22 TIBAINGANA ANTHONY 223-053012-27464

23 BALUKA BABRA 223-053012-25385

24 MAKABALA AMILI 223-053012-25323

25 NEKESA REBECCA 223-053012-25476

26 ISEGYA ASADI 223-053012-25111

27 NANDERA RITAH 233-053012-25189

28 KITAVUJJA ANTHONY 233-053012-25525

29 ZZIWA LODRICK MATHIUS 223-053012-25835

30 AHEREZA PRAISE MUKUNDE 223-053012-25862

31 OMITA SIMON 223-053012-25190

32 ODONG DANIEL 223-053012-25644

33 KASASA TREVOR 223-053011-25740

34 OMUGOGOL MUSANA 223-053012-25769

35 SEMBERA JOSEPH 223-053012-25866

36 NAKAZIBA WALIYA 223-053012-25169

2
37 MPIIMA CHRYZESTOM 221-053011-21202

38 BABIRYE NAKIRAYI 221-053012-20976

39 ADAMA ALEX 221-053012-20955

40 KYASANKU JOEL 219-053011-12581

3
Law applicable in land law.

1. The 1995 Constitution of the republic of Uganda

2. The Land Act, cap 236.
3. Registration of titles Act, cap 240
4. The Land Acquisition Act, cap 235
5. The Land Registrations,2004
6. The Limitation Act, Cap 80
7. The Judicature Act, cap 16
8. The Condominium Property Act, cap 234
9. The Access to Road Act, cap 350
10.The Mortgage Act 2009 and the Regulations
11.The Traditional Rulers (restitution of Assets and Properties) Act, 1cap 243
12.The National Environment Statute 1995 and the NEA of 2019
13.The Water Statute 1995
14.The Local Government Act
15.The Town and Country Planning Act, cap 30
16.The National Forestry and Tree Planting Act
17.The Landlord and Tenant Act, 238 and many more.

WHAT IS LAND?

The definition of land is summed up in the latin phrase “ Cujus est solum ejusest
usque ad coelum at ad inferas” meaning land owners own the air space above as
well as everything below the land2.
Land therefore does not merely refer to the soil. It is multidimensional
concept covering the soil we see, the surface and the space above over which we
may not be able to establish mere boundary (air space) as well as the area below
the soil that we see. It may also cover rights and interests.
Statutorily there are a number of definitions of land in Uganda.
1

2
Principles of land law by John T. Mugamwa

4
 In the Mining Act of 2003, land includes land beneath any water, seabed
and subsoil of such soil
The Petroleum (Exploration and Production) Act Cap 150 states that land
includes land beneath water and the subsoil there of.
Registration of Titles Act Cap 230 defines land to include messuages,
tenements, hereditaments corporeal and incorporeal; and in every certificate of
title, transfer and lease issued or made under this Act, land also includes all
easements and appurtenances appertaining to the land described therein or reputed
to be part of the land or appurtenant to it.

Surface above the land

The owner of the physical surface also owns the space above the land and
is entitled to assert his/her rights over that space.
In Bernstein V sky views and General limited (1978) QB 4793 a land owner
claimed that there had been a trespass where an aircraft had passed over his land to
take photographs at about 700 ft.
The court held that no actionable trespass had occurred concluding that in
view of scientific developments enabling man to use airspace, the restriction of 700
ft was unreasonable. The court further held that the right to space above land
should be restricted to such a height as is reasonably necessary for the ordinary use
and enjoyment of the land and structures on it. Therefore above such a height a
person has no greater rights than any other member of the public.

Surface below the land

3
(1978) QB 479

5
 The owner of the land is entitled to the mineral deposits below that land.
How ever this right is disqualified by national interest. The former position is that
all an un minned minerals belong to the state. Under the Mining Act, section 3
(2003) provides that subject to rights granted under the Act, the entire property in
and control of all minerals in, on or under any land / water in Uganda are and shall
be vested in the Government notwithstanding any right of ownership of or by any
person in relation to any land in or on or under which any such minerals are found.
Section 43 of the Land Act provides that a person who owns or occupies land
shall manage and utilize the land in accordance with the Forest Act, Mining Act,
National Environmental Act, Water Act, Wild life Act and any other law.
The National Environment Act also contains prohibitions to the use of land
by generally requiring utilization that is environmentally friendly. Where it is
anticipated that utilization will harm the environment, then an environmental
impact assessment must be done to indicate mitigation of the effects to the
environment.
Section 8 of the water Act contains a limitation on the use of water and empowers
the minister to;
a) Prescribe places from which water can be extracted.
b) Prescribe the time and manner in which water may be used at times of
shortage or anticipated shortage.
c) Temporarily or permanently prohibit the use of water from a given
source on health grounds.
d) Require any person to tale measures as they may be specified in the
notice to reduce or repair damage to a source of water4

4
Section 8, Water Act

6
 Introduction

Winifield and Jolowicz defines a tort as a civil wrong for which the remedy is a
common law action for unliquidated damages and which is not exclusively the
breach of contract, trust or any other equitable obligations. The development of tort
law is closely related to the development of society. In other words, it is assumed to
have evolved from the time when people started living in organized society. This
legally required institutions that would assist in the management of people and
regulate their behaviors in such societies. Thus, the development of the law of tort
due to tortuous liability.

Historical development of law of torts and the history of trespass to land.

The law of torts as it is in its current state did not exist until about 1280. In the
early days of the tort, course of action could be begun in two ways: by the
individual (appeal) and by the state (indictment). Not there was a strong language
of criminal summons as opposed to the “humble prayer” of a plaintiff in civil
actions especially petitions. As the law of tort progressed and was widely accepted
and used certain torts started being associated to the law inter-alia is land. Trespass
to land became actionable during the period of feudal societies that is to say
800AD to 1450AD. All cases were regarded as criminal and there was no
demarcation as we have it today. Private actions were risky because they could be
tried by battle and if one lost the battle, they could lose their property or even be
sent to jail so the indictment was very popular.

Towards the 13th century the writ of trespass was introduced and it was the
foundation of all torts and it was both civil and criminal. It was designed to address
serious breaches of the peace. Trespass was initially regarded as both civil and

7
criminal because if successful it ended in the compensation of the plaintiff and
punishment for the defendant.

As society developed there arose situations where trespass was not a direct
consequence of the actions of the defendant and could not be remedied under the
traditional writ of trespass. The courts created a writ analogous to trespass to
remedy consequential trespass i.e., trespass on the case of negligence.

The writ of trespass at first was in form of breach of the king’s peace and it was
handled by the quasi-criminal royal council. Feudal exploitation depended on land
ownership. The law therefore was preoccupied with protecting interests in land.
This was opposed by the Magna Carta of 1215 which was in a sense an early
version of a bill of rights. It tried to protect the rights of the serfs 5. The law of torts
as it exists did not exist until about 1280. As society developed there arose
situations where trespass was not a direct consequence of the actions of the
defendant and could not be remedied under the traditional writ of trespass. The
courts created a writ analogous to trespass to remedy consequential trespass i.e.,
trespass on the case. Trespass on the case is what developed in to negligence to
remedy consequential .

They developed writs which were in a sense the causes of action. A writ is a way of
starting a legal action and covered various forms of conduct which was considered
to be actionable. If no writ covered a particular situation, then the person had no
remedy in law.

During the gentile society there was no trespass to land since land was owned
communally and no one could point to a specific piece of land to claim that
someone has trespassed on it. The middle stage of savagery is marked by the

5
W.V.H. ROGERS, Winifield & Jolowics on Tort, 16th Edition.

8
discovery of fire, then the club and spear. In the upper stage of savagery they made
bows and arrows out of polished stone and hunting became established. In the
lower stage of barbarism there was pottery, weaving and the domestication of
animals/agriculture. In the middle stage there was introduction of bronze tools and
weapons. It was then that division of labor began. In the upper stage of barbarism
there was iron smelting and this led to large-scale agriculture. It also increased the
effectiveness in war. The final stage was civilization. At each of these stages
productivity of labor developed and there was development of skills. Because of
the collectiveness of the production political organization also became collectivist.
It was a classless society based on kinship ties. In many societies the clans were
totemic. They were governed by taboos as a means of social regulation. They were
cohesive and conflict was minimal. They were democratic and had no laws because
they had no government to institute the laws. Many of the civil wrongs that today
make up the corpus of tort law were nonexistent. When feudalism set in land
became a serious factor of production and thus development of the tort of trespass
to land so as to protect the rights of possessing land and whoever trespassed onto
someone’s land could be held liable and had to pay damages to the plaintiff.

Feudal exploitation depended on land ownership and therefore law was

preoccupied with protecting the interests in land.before the coming of the magna
carta ,there was a feudal contract which king John abused by leaving high taxes,
exploitation etc.that opposed the majority but however later the magna carta in
1215 .it was the first document to put into writing the principle that the king(John)
and his government were not above the law.it was drawn by the barons and church
leaders to imit the kings powers and was signed on 15th june 1215.which was in a
sense an early version of a bill of rights came and tried to protect the rights of the
surfs from the landlords. It introduced four key aspects that is; a) that no one is

9
above the law,not even the monarch(b) that no one can be detained wzout cause or
evidence (c) that everyone has a right to trial by jury(d) habeous corpas and a
committee was Put in place to enforce the magna carta.

Trespass to land

Tress pass to land is an unjustifiable interference with the possession of land.

According to the law of tort 10th edition by John cooke6. Trespass to land occurs
where a person directly enters upon another’s land without permission, or remains
upon the land, or places or projects any object upon the land. This tort is actionable
per se without the need to prove damage.
However, it’s important to note that the tort is committed against possession and
note that, the tort is committed against possession and not ownership of land.
Therefore, the injury must be direct rather than consequential. For example, if a
person throws a stone onto the land of another person he or she commits trespass
but if he allows a tree branch(s) to grow over his neighbor’s land this is a nuisance
and damage must be proved. See the case of Esso petroleum co. Ltd v Southport
Corp7.

The tort is actionable per see and the claimant need not to show any damage to the
land as a result of the defendant’s actions. The remedy sought will here often be an
injunction to prevent any repetition of the trespass. However, for one to be held
liable in this tort, he /she must have the intention to trespass, therefore if the
defendant did not intend to be on the land and was just thrown there no tress pass is
6
at page 335.chapter 16
7
[1958]AC218

10
committed. Thus, trespass is a tort of intention and so there will be no liability for
an involuntary act. See the case of Basely V Clarkson8, the defendant mowed grass
on adjoining land, honesty believing it was his own land. Held. He was a
trespasser and that mistake is no defense in trespass where there has been an
involuntary trespass. It’s important to note that if the defendant thought that the
land was their own will not be a defense. See case of Smith v Stone and also if the
defendant was lost is also no defense. See League against cruel sports v Scott9.

There are several ways in which trespass to land occurs as explained below;

1. Entry on land
2. Remaining on land

3. Placing objects on the land

4. Trespass ab initio
5. Trespass above and below the surface.

Details of each form include the following.

Trespass by wrongful entry, this is the commonest form of trespass and involves
a personal entry on the claimants land by the defendant without permission or
when such permission is expired. It should be noted that crossing of the boundary
will be sufficient such as putting a hand through window into another person’s
land. See the case of Entrick v Carrington10. In this case the plaintiff alleged that
the officers of the king broke into his house and searched and took documents. The
defendants said they were authorized by a warrant granted by the secretary of state.

8
(1682) 3 lev. 37
9
(1987) QB 240
10
(1765)19 state Trial 1029

11
The court was of a view that the state secretary had no jurisdiction to grant a
warrant and the defendants were guilty of trespass.

This form of trespass may also be committed by abuse of right of entry. A person
who used the high way for any purpose other than that of passing became a
trespasser against the owner. See Hickman v Maisey11. In this case the highway
land in the possession of the plaintiff was used by a racing tout for the purpose of
taking notes on the form of race horse a trespass was committed.

Trespass by remaining on land, a person commits trespass if they remain on land

when their right of entry has ceased. For example, where someone has obtained a
lease and that lease expires and the lessee refuses or to omit to leave, is as much as
trespass as the one who enter originally without any right. In addition, the person
who holds over at the end of a lease is a trespasser until demand is made as only
the person in possession can be trespassed against. see Hey v Moorhouse.

Trespass by placing objects on Land, it is trespass to place any chattel on the

claimant’s land without permission. This form of trespass is also known as
continuing trespass, as the trespass continues as long as the offending article/chattel
remains on the land. Therefore, successive actions will lie from day-to-day until the
article/chattel is removed. See Holmes v Wilson12.

In this case the defendants erected buttresses to support a sinking road. To do this
they had to trespass on the plaintiff’s land. The plaintiff sued and recovered
damages. The defendants failed to remove the buttress and the plaintiff sued again.
The defense was that the action was time barred. The defense was rejected as it was
a case of continuing trespass which continued as long as the buttress were on the
land.
11
[1900]1 QB 752
12
(1839)10A&E 503.

12
Trespass Ab initio, this arises where the defendant’s entry is by authority of law as
opposed to the claimant’s and the defendant subsequently abuses the right, then
they become a trespasser ab initio. See the Six Carpenter’s case. They entered a
restaurant to eat food after eating refused to pay, they were not trespassers ab initio.
The rule only applies where the subsequent abuse is a positive wrongful act as
opposed to an omission.

Trespass ab initio applies when there is absolute right of entry, I the case of
Cinnamon British Airports Authority13 , unlicensed taxi drivers were hanging
about and louting for passengers, had been prosecuted and fined. It was held that,
the authority had no power and duty to turn back any person if circumstances
warranted it under the law. The taxi drivers were trespassers for they were abusing
the authority given to them by law, further they were trespassers ab initio and could
be turned out. When trespass ab initio has been established the occupier may
recover damages additional to those for the wrongful act.

Trespass above the surface of land, the person who owns the land also owns the
sky above it. The adjoining owners have no right to erect structures hanging over
their neighbor’s land irrespective of whether they have thereby caused damage or
annoyance to their neighbors. Therefore, the airspace above the land belongs to the
land owner. Any intrusion to the property owner’s airspace constitutes trespass to
land.

See the case of Kelson v Imperial Tobacco Co (of Great Britian and Northern
Ireland) Ltd14. The plaintiff brought an action in trespass against the defendants.
The plaintiff was a lessee of a shop with a flat roof top separated by street to the
defendant’s adjoining building of three stories. The defendants mounted an
13
(1980) 1WLR 582
14
[1957]2QB334

13
advertising sign it did not stop him from subsequently requiring its removal.
Hence, the inversion of the plaintiff’s airspace by a sign amounted to trespass on
the part of the defendants.

Trespass to Airspace, it has already been seen that claimants are only entitled to
limited protection against infringement of the airspace above their land, in the case
of Bernstein v Skyways and General Ltd)15 It was held that Protection will be
given by the courts against something which occurs at a lower level and has a
more immediate impact than an over-flying aircraft. In Kelson v Imperial
Tobacco Co16, it was held that an advertising sign which overhung the claimant's
land amounted to a trespass.

Trespass by Aircraft, England's Chat Aviation Act of 1949 under S 40/1] [K]
provides that no action shall be in respect of trespass or...nuisance, by reason only
of the flight of an aircraft over any property of a height above the ground which is
reasonable, or the ordinary, or the ordinary incidents of such flight". In addition,
s.58 of the civil Aviation Authority Act Cap 354 stipulates that the mere overflight
of an aircraft over a property at a height above the ground in accordance with
authority regulations made under this Act shall not amount trespass or nuisance.
Except if any material loss or damage is caused to any person or property on land
or water by a person in or an article or person falling from an aircraft inflight,
taking off or landing.

Trespass below the surface.

It comprises of rights of property owner between the earth surfaces downwards to

the center of the earth. At common law the surface owners’ rights extend
15
(1978)1 QB 479.
16
(1957)2 QB 334

14
downwards sufficient to permit the extraction of minerals. In absence of any
express or implied limitation of right, an owner of land, at common law is entitled
to the sub soil, culusestsolum, elusestusqueadcoelum et ad inferos, in Bulli Coal
mining company v Osborne, the defendants mined from the land through the
plaintiff’s land. Court was of a view that this amounted to trespass to the subsoil.

However, according to the mining Act, where minerals are discovered on the land,
the government has a right to take over such land after adequate compensation as
per Article 26(2), of the constitution of Uganda.

Possession and who can Sue for trespass?

Any unlawful entry upon land or buildings in the possession in another is

actionable as a trespass. Therefore to maintain an action for trespass, the plaintiff
must prove that he was in possession of the land at the time the wrong was
committed

In the case of Wuta-Otie V Danquah17, Court set out in general terms the
possession necessary to maintain the action. "Their Lordships do not consider that
in order to establish possession, it is necessary for a claimant to take some active
step in relation to the land such as enclosing the land or cultivating it. The type
of conduct which indicates possession must vary with the type of land In the case
of vacant and unenclosed land which is not being cultivated, there is little which
can be done on the land to indicate possession. Moreover, the possession which
the respondent seeks to maintain is against the appellant who never had any title
to the land. In these circumstances, the slightest amount of possession would be
sufficient.

What amounts to possession?

17
(1961)3 ALLER 596, 600

15
When one talks of possession, the following terms have to be taken into
consideration:

Possession", "right of Possession", "Legal Possession", "Possession in Law".

All those general mean the same thing- Full Legal possession. Other terms are
Right to possess" and "Constructive Possession" which also mean the same thing.
There's also "Physical Possession"

Possession means the right to exclude others whether or not the possessor is
physically present. A person who leaves his house for a long period, but intends to
return, retains his right of general exclusion, and therefore possession.

A person is said to possess property if he has control over it coupled with an

intention to exercise exclusive control over it without whether directly or indirectly
while Ownership in general is a legal concept which shows the extent of a
person’s right over property in respect of which he has a claim depends on whether
he is owner or just a possessor of the property in question.

Ownership is a Legal concept and possession is a matter of fact which depends on

the circumstances of each case. Property may be in the possession of its owner or
of some other person with the owner's consent. Possession may be actual or legal.
Actual possession is where someone is in physical possession of the property
whereas legal possession is when one has documents of title even thou he may not
be in physical possession. In the case of Stanynought V Cosius18, Court stated
that, Trespass is a possessory action only to be brought by possession and from
time of possession.

18
94 ER 1002

16
In the case of, Tropham V Dent19, it was held that in order to maintain the action
the plaintiff ought to have had possession actual or constructive.

Joint Tenants, Section 56 of the Registration of titles Act Cap 240 states that two
or more persons who are registered as joint proprietors of land shall be entitled to
the same as joint tenants and in absence of any evidence to the contrary, they are
presumed to hold any such land in equal shares. In the case of James katuku &
Others V kalimbagiza20, it was held that "Consequently entry into land in his
possession by any other person without his consent amounted to trespass even if
the other co-tenant permitted the entry.

Customary tenant & customary tenant can sue if he is in possession. In the case
of Katongole V Sewanyana21 , it was held that a customary tenure is not a
trespasser where the legal procedures of evicting him have not been compiled with.

A Squatter. A squatter has no locus Stand to sue in trespass as he is in possession

of the land illegally. In the case of McPhail V Persons, names Unknown22 , Lord
Denning said that a squatter is a trespasser.

Tenant against landlord

Whether or not a tenant has locus stand to sue his landlord in trespass will depend
on facts of each case. Determining factor will be who was in possession at the time
the action arose. In the case of Gabriel William Juma lutaaya V Hamatital G.

19
130 ER, Tindal
20
(1987) HCB 75
21
(1988) - FOJ NCS 159
22
(1173) Ch. 447 al 456

17
Gandesha & Another23, the issue before court was whether a landlord can commit
trespass against his tenant, it was held that, owner of land cannot commit an act of
trespass vis-à-vis his tenant for instance, the landlord unnecessary and
unreasonably intermeddles with the tenants quiet enjoyment of the property
contrary to the terms of the tenancy, there would be a trespass.

However, it’s important to note that not in all cores that a tenant has locus stand. In
the case of Lutaaya V Hamtilal Gondeshar & Anor24. The High Court stated that
‘’the landlord cannot commit trespass where the defendant has no right to suit
premises.’’

Rights of Owner not in actual physical possession

An owner not in possession cannot sue except for permanent damage to his
reversionary Interest. If the land is in the possession of a tenant, the tenant is the
proper plaintiff to sue for trespass committed in respect of the land. In the case of
Baxter V Taylor25, the plaintiff sued for trespass to his land in possession of
tenants, when defendant unloaded stones upon it. Held that, the plaintiff could not
maintain trespass as his reversion was not injured.

Possession not confined to actual Physical Possession. Possession includes

possession through servants or agents and it may be constructive e.g. where one
leaves his house unoccupied for a long time but intends to return. In the case of
Wuta-Otie V Dnaquah26. The plaintiff acquired land in Ghana, which she did not
physically occupy but marked it with pillars according to custom, some years later

23
(1986) HCE
24
(1986) HCE 46.
25
(1832)
26
(1961).

18
the defendant built on the land. It was held that, the plaintiff could succeed in
trespass, the slightest amount of possession being sufficient.

Knowledge of exclusive possession.

Knowledge here is the knowing by the plaintiff that he has possession. The
question here to be asked is: "Is it possible for one to have possession of anything
when that person is totally ignorant of its existence?" in the case of South
Staffordshire Water Co. V Sharman27, it was held that possession of land implies
possession of everything on or below it which may be regarded as part of the soil-
whether the owner is aware of its existence or not.

DEFENCES TO TRESPASS TO LAND Co-Owners.

It is a good defense where the defendant is a co-owner section 56 of the

Registration of Titles Act Cap 240 states that their interest is the same. In the case
of Cresswell v Hedges, One tenant in common was sued in trespass by another, for
destroying the property, Court held, that the defendant may plead that, exception
respect of a certain undivided share or shares, and not the plaintiff, is entitled or
interested, and as to such share or shares. In another case of James Katuku & &
others v Kalimbagiza28, it was held that where a person admitted as a joint
tenant, his right of Possession is the same as those of offeree.

Claim of Right.

It is a good defence where the defendant successfully shows he was in possession

or was entitled to possession. In the case of Jones Champman2930, A defendant
27
(1896)
28
(1987)
29
(1849) 2 Exch 803
30
ER 494

19
may plead and prove that he had the right to possession of the land at the time of
the alleged trespass or that he acted under the authority of some person having such
right.

Lease and Licence. It’s a defence to an action of trespass to land for the defendant
to plead and prove that he entered the land by the leave and license of the plaintiff,
if the person in possession of land gives to another person license to enter on the
land, so long as the license continues and the entry is justified by the licence. The
person to whom the license was given cannot be treated as a trespasser. The plea
must cover all the alleged acts of trespass. In the case of Hall V Seabright25 to
trespass, defendant may plead a licence to enjoy the premises from such a day to
such a day.

In the case of Hurst V Picture Theatre31, It was held that, the plaintiff was not a
trespasser during the performance for which he had a ticket. For that
performance, the licence to stay in his seat could not be revoked with the result
that the defendant could not eject the customer. The result was that the plaintiff
recovered damages for trespass to the person for the force used on him plus the
price of the ticket for the breach of contract.

Note, where the license was granted for a specific purpose and a limited lime, as
seen in the case of Hurst Picture Theatres, it is revocable until the purpose has
been accomplished.

Licence A licence is that consent which, without passing any interest in the
property to which it relates, merely prevents the acts for which consent is
given from being wrongful. Trespass is therefore not committed when the
defendant enters with the authority of a licence. This is unless they exceed

31
[1915]1 KB 1

20
 the terms of the licence or the claimant has legally revoked the licence. A
bare licence, which is one granted other than for valuable consideration, may
be revoked at any time on the giving of reasonable notice. A contractual
licence may also be revoked at any time, but this may involve the grantor in
an action for breach of contract. This appears to be subject to an exception
where the licence was granted for a limited period of time and for a specific
purpose. If a person bought a ticket for the cinema then they would probably
have an irrevocable licence for the period of the film. (Hurst v Picture
Theatres Ltd

1) The person ejected could then mount an action for battery and the defence
of reasonable force to eject a trespasser would fail. A licence coupled with
an interest, for example, a profit, is irrevocable, as although the licence itself
is only a right in personal, it confers a right in rem to do something once an
entry has been made

Entry to Retake or remove Goods.

It’s a good defense that the defendant entered on the land of the plaintiff to retake
his goods placed there by the plaintiff. So if person unlawfully takes goods of
another and puts them on his own land, the owner of the goods is entitled to enter
immediately on the land for the purposes of retaking the goods which are his.

21
Note, there will be no defense where the wrongful act is that of the defendant. For
example in the case of Anthony V Haney32, it was held that where the goods are
on the land by wrongful act of the defendant, there is a trespass for entering the
plaintiff’s land. And plea, that certain goods of defendant were there, and that they
entered to take them were no unnecessary damage and was held to be ill plea.

Preservation of Property or life or acting in Public good.

There can be acts of necessity where land may be entered for putting out fires, for
public safety, defense of the realm, for self-defense and danger to life. For example
if fire breaks out on land, a party is entitled to adopt such means on the land for
extinguishing the fire as may in the circumstances is necessary for the preservation
of his rights. The justification of a trespass for that purpose depends on the state of
things of the moment of interference, and not upon the interference as to necessity
to be drawn from the event. Again, an act which would otherwise be a trespass may
be justified if done to avert danger to life. In the case of Maleverer V Spinke33.
Court stated that "we will agree that in some cases a man may justify a tort, and
that is in cases where it sounds for the good, as in time of war may justify making
fortifications on another's land without licence: also a man may justify pulling
down a house on fire for the safety of the neighboring houses: for these are cases
of common weal. So also it is it the Sheriff pursues a felony to a house, and an
order to break the door of the house is justifiable.

Involuntary and accidental trespass.

If the defendant intends to enter on the land on to which he trespassed, it is no

defense that the trespass was involuntary e.g. because the defendant honestly

32
(1832); 131 ER 372
33
73 ER 79

22
believed he had the right to enter, or did so under an inevitable mistake of fact or
law. If the entry was nevertheless intentionally.

In the case of Basely V Clarkson34, the defendant mowed grass on adjoining land,
honesty believing it was his own land. Held. He was a trespasser and that mistake
is no defence in trespass where there has been an involuntary trespass. Courts will
look at circumstances of each case differently. There is for example where the
defendant was compelled by a third party as in the case of Gilbert v Stone35, where
the defendant was compelled to commit a trespass by threats of the third party.
Court will look of the issue whether the defendant intentionally entered upon the
land.

Involuntary trespass to land

As earlier discussed that trespass to land has to be direct(voluntary )in nature,there

are situations where it can be involuntary in nature.

This was well explained in the case of smith v stone(1647) 82 ER 533,where the
defendant was carried against his own will onto the plaintiffs land by others and
was not in the land voluntarily.and smith(plaintiff) brought an action of trespass to
land against the stone (defendant).

Court held that: involuntary trespass to land is not actionable but it's actionable
only to the party that carried the defendant into the plaintiffs land without his
consent. The court went ahead to compare the present circumstances to a
hypothetical situation involving a person driving cattle onto someone's land."as he
that drives my cattle onto another man's land is a trespasser but not I the owner of
the cattle".
34
(1682)3 lev.37
35
82 ER.902

23
Negligent entry/treespass

This is another form of treespass to land which is actionable under the law.this
arises where a person fails to exercise reasonable care where harm or loss could be
reasonably foreseen.

And this was well illustrated in the case of league against cruel sports v
Scott(1986) QB240

The p's owned 23 unfenced areas of land.staghounds used to enter the land in
pursuit of deer.the p's sued the joint masters of the hounds for damages and sought
an injunction against further trespassers. Park j issued an injuction in respect of one
area restraining the D's themselves, their servants or agents from causing or
permitting hounds to enter or cross the property.

Judge said: " where a master of stag hounds takes our a pack o hounds and
deliberately sets them in pursuit of a stag or hind knowing that there's a risk that in
pursuit hounds may enter or cross prohibited land,the master will be liable for
trespass if he intended to cause hounds to enter such land OR if by his failure to
exercise proper control over them,he causes them to enter such land"

Exercise of Legal Right.

It is a defense to prove that the defendant entered on the land in the exercise of a
legal right whether statutory or otherwise for example when ore enters to exercise
right of market. In the case of Town end V Woodruff36, where by customer enters
in a market for purposes of buying and selling is not liable in trespass for placing
his goods on the ground in such close.
36
(1850) 5 Exch 506: 155 ER

24
Right of way.

Section.72(1) of the land Act Cap 236 states that it is to the effect that all land,
whether alienated or not, shall be subject to all existing public rights of way which
shall be reserved to and vested in the government on behalf of the public. It is
therefore a defiance if one was exercising his right of way and never did anything
beyond that.

Re-taking of goods or chattel.

If one takes and places on his own land another's goods or chattel, the latter may
enter and retake them.

Necessity.

It is a defence to show that it was necessary for the defendant to enter the
claimant’s land. It is for the defendant to prove that that the necessity arose
without negligence on his part. (Rigby v Chief Constable of
Northamptonshire33.) The House of Lords has identified three situations
where the defence might apply F v West Berkshire Health Authority37)

a).Cases of public necessity such as the destruction of property to prevent

the spread of fire.

b) Cases of private necessity as in the case of Cope v Sharp38, Fire broke out
on X’s land. X’s servants attempted to put the fire out and Z’s gamekeeper
set fire to land between the fire and some of Z’s nesting pheasants. The

37
[1989] 2 All ER 545 at 564:
38
[1912] 1 KB 496

25
 gamekeeper was sued for trespass. He was held not liable as there was a real
and imminent danger and he had done what was reasonably necessary. The
necessity depends on the state of things when the trespass takes place and
not upon the inference as to necessity to be drawn from the event. c) Where
action is taken as a matter of necessity to come to the aid of another whose
property or person is in imminent danger.

Limitation Period:

The Limitation Act Cap 80 under s. 4 (1) (a)39 stales that no action based on tort
shall be brought after the expiration of six years from the dole on which the cause
of action arose. Also, under the Civil Procedure and Limitation (Misc. Provision)
Act 20 of 1969, in s. 2 (1) (a), (b) and (c), no action lounged on tort shall be
brought against the government, a local authority or a scheduled corporation after
the expiration of 2 years from the-date on which the cause of action arose. This
was as o result of an amendment by Act of 2000.
Those foregoing sections show that an action in trespass cannot be brought by the
plaintiff where time within which to bring the action expires. The action will be
statute-barred.
Again 3.6 of the limitation Act Cap 80 provides that no action shall be brought to
recover land after the expiration of 12 years from the date on which the right of
action accrued. Not only the right to action is barred, but the plaintiff's site is
extinguished. So even if one trespassed and entered on another’s land after
expiration of the 12 years, the trespasser will be taken to be the owner
This is the basis of possessory title; the possessor for 12 year cannot himself prove
good title but he can successfully prevent anyone else claiming the title
Hayward v Chollenor (1967)40 . The plaintiff had neglected for more than 12 years
to collect from the defendant rent designed to assert the status of landlord against
tenant and so to prevent the limitation period from beginning to run. When the

39
The Limitation Act Cap 80
40
3 ALL ER 122

26
plaintiff sought possession of his land, the defendant claimed adverse possession.
Held: That the plaintiff's title had been extinguished.
Note however that for one to become owner, possession must be adverse. Action in
trespass is not time barred where the tort is continuing:
For example, in the case of Abram Kitumba V Uganda Telecommunication
Corporation H.C.CS No. 375/8141
The plaintiff sued the defendant Corporation in trespass and sought recovery of the
suit land over which the plaintiff had lease which had acquired from a company
called Uganda Mixed Farm Ltd. In 1987 the plaintiff alleged that the defendant had
erected and operated a Satellite Station on the suit land since 1977, ten years before
he himself acquired the lease of the land and this constituted trespass since he had
not permitted this occupancy of his land by the defendant was still using the suit
land. The issue was whether because 14 years had elapsed since the alleged cause
of action, the suit was lime barred. Held: The action was not time barred because
trespass was a continuing tort for which the injured party can sue from the date of
cessation of the wrong and in this case the wrong had not ceased

Authority of Low

There may be the authority of law for entries which would otherwise be trespassed
E.g. under the Police Statute No. 13 of 1994, in s. 22 (2) a Constable may enter and
search premises for the purpose of arresting a person for an arrestable offence.
Again there is power to enter premises after an arrest for an arrestable offence and
to search for evidence of that offence or connected similar offences. A police
officer may enter premises to prevent a breach of the peace
In the case of Thomas V Sawkins (1935)42 , Police Officers entered a private
meeting against the organizers wishes. Held: No trespass as the officers reasonably
apprehended a break of the peace.

41
(1994)2 KALR 126
42
(1935) 2 KB 249

27
Remedies are available in trespass to land

a) Damages.

Damages are monetary compensations that are given to the claimant after
proving a course of action against the defendant. They are awarded at the
discretion of court to put the defendant in a position it would be in if the
defendant did not interfere with rights of the plaintiff. This can be in form of
nominal, exemplary, special, punitive damages depending on the plaintiff’s
prayer.

b) Injunctions.

An injunction is a restrictive order that is issued by court discretionary to prevent

greater harm from happening. It can take forms like permanent, temporary, or
interim injunction. See section 38(3) of the judicature Act43. Injunction is issued
where a trespass is threatened or where the trespass is of a continuing nature, then
the claimant may seek an injunction. The claimant is prima facie entitled to the
injunction but it may be refused where the interference is trivial. In the case of
Llandudno UDC v Woods [1889] 2 Ch 705, the council sought an injunction to
prevent a clergyman from trespassing by holding services on the plaintiff’s
seashore.
The application was rejected on the ground of triviality.
C) Right of Re-entry, ie the right of resuming possession of land by entering.
Reentry a person who is entitled to possession can enter or re-enter the premises.
By the Criminal Law Act 1977 s 6, it is a crime to use or threaten violence for the
purposes of securing entry to any premises occupied by another, except by a
displaced residential occupier. At civil law reasonable force may be used to evict a

43
The Judicature Act Cap 16

28
trespasser. In the case of Hemmings v Stoke Poges Golf Club44 , the plaintiff, a
tenant of the defendants, was served with a notice to quit and refused to leave. The
defendants entered the plaintiff’s cottage and removed the plaintiff and his
furniture using reasonable force. The defendants were found not liable in trespass.

Note 1: A lease may give the lessor the right to re-enter on a breach of covenant by
the lessee but the right is not enforceable unless and until notice is served on the
lessee under s146 of the Law of Property Act 1925.

Note 2: It is unlawful to enforce a right of re-entry, except through court

proceedings, while the occupier is lawfully residing in the premises: s2 Protection
from Eviction Act 1977

d) Ejectment a person who has been dispossessed may bring an action for
ejectment where he can establish an immediate right to possession. A claimant can
only recover on the strength of their own title and not on the weakness of the
defendant’s. The defendant only needs to assert that they are in possession and the
claimant must then show that their title is better than the defendant’s.

d) Mesne profits an action lies for damage which the claimant has suffered
through being out of possession of land. This includes profits taken by the
defendant during the occupation and PART 4 TORTS BASED ON LAND 326
damages for deterioration and the reasonable costs of getting possession. The basis
for calculating damages is known as the user principle and the defendant is
required to pay a reasonable rent for the period in which he was in adverse
possession. (Inverugie Investments Ltd v Hackett45.) In the Hackett case the
defendants had unlawfully ejected the tenant of a hotel complex and run the hotel
at an occupancy rate of 35– 40 per cent. The House of Lords held that the claimant
44
[1935] 2 KB 249
45
[1995] 1 WLR 713 (HL)

29
was entitled to compensation 00based on a reasonable rent for all the apartments in
the complex, not just those that the defendant had managed to rent.

In conclusion, trespass to land can only be brought as a course action by only

people who have exclusive power of possession to the land to exclude others. The
burden of proof lies on the plaintiff and he or she has to prove on balance of
probabilities. Successful proof of trespass by the plaintiff he or she is entitled to
damages or an injunction which are granted at courts discretion as discussed above.

References

The 1995 Constitution of the republic of Uganda.

Unlocking torts by Chris turner

Law of tort by john Cooke

W.V.H. ROGERS, Winified & Jolowics on Tort, 16th edition.

Case law

30
Statute

The Land act cap 236

Registration of titles act, cap 240

Civil aviation Authority Act

31